By David Zapp, Esq.
“Safety Valve” is the procedure in drug cases whereby a defendant can escape the mandatory minimum sentences. The qualifications for “Safety Valve” eligibility are found in 18 United States Code. §3553(f) and United States Sentencing Guideline. §5C1.2(a):
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
1. When can a defendant apply for safety valve consideration?
2. How many times can you make a safety valve presentation?
3. Can the government prevent a defendant from making a safety valve presentation because they do not believe the defendant is eligible and if the government denies consideration, is it reversible error?
The Short Answers:
1) While at least one circuit has suggested that safety valve eligibility requires the defendant to cooperate through the criminal process, the majority of courts have concluded that the only deadline that a defendant must meet is the beginning of the sentencing hearing. A defendant may thus apply for safety valve consideration even after going to trial. The court may also delay the sentencing proceeding to allow a defendant to make a full disclosure to obtain safety valve eligibility.
2) There is no limit on how many times the defendant may make a safety valve presentation; however, the government may refuse to hear multiple presentations if it believes that the defendant is not being truthful. Moreover, the government is generally regarded as having no obligation to debrief the defendant, and may decline to meet with the defendant at all. Therefore, it is not reversible error for the government to decline to consider the defendant’s safety valve presentation.
3) The government is under no obligation to debrief the defendant, whether or not they believe the defendant is eligible for safety valve consideration. However, the government may not unilaterally preclude the defendant from applying for safety valve consideration. The burden is on the defendant to disclose all relevant facts, not just express a willingness to make a proffer to the government. In order to fulfill this obligation, the defendant may make such a proffer in its court filings or in a letter to the government. The debriefing process is generally considered the best way to disclose information and a failure to seek out an interview with the government may be held against a defendant; therefore, defendants seeking to take advantage of the safety valve provision should try to make a presentation to the government if possible. While it is not reversible error for the government to fail to meet with the defendant, it would be reversible error for the court to hold that such a meeting is required for safety valve consideration.
Neither the Guidelines nor §3553(f) provide additional guidance on the processes and procedures by which a criminal defendant may seek safety valve consideration.
(Special thanks to Anne Silver recent graduate from Columbia Law School for writing this article.)