Tuesday, February 28, 2017


One of the few ways to avoid a mandatory minimum sentences in nonviolent federal drug cases is by invoking the safety valve provision. The safety valve is useful way for any defendant to avoid a harsh sentence under the federal sentencing guidelines if he does not have any prior criminal convictions and if he fulfills an obligation to be debriefed by the DEA or FBI before he is sentenced.

Recently a Florida federal criminal defense attorney sent the following email:

Federal Judge slowly opens Safety Valve
What do I need to do to make certain of getting safety valve after a trial?  I have a drug conspiracy trial set and my client is safety valve eligible, I want to make sure I don't do anything to invalidate his eligibility at jury trial so that if we lose the trafficking in cocaine case the judge will still not sentence my client to the mandatory minimum prison term.
Other than making sure the jury does not convict his client what should he do to make sure that his client's eligibility for the safety valve is not compromised.

Under the Federal Sentencing Guidelines section 5C1.2  and federal caselaw the defendant must provide full and truthful disclosure no later than the time of sentencing. 
Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant had 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.
Usually sentencing after a federal conviction at trial will occur about three months later unless there are good reasons for the District Judge to continue the sentencing. Sometimes the government agents and federal prosecutors involved with the case will make it difficult to schedule the debriefing meeting possibly because they're miffed that the defendant chose to exercise his right to a jury trial. If that's the case a motion should be filed with the judge asking that the court order the agents to attend the defendant's proffer at a set time and date under threat of being held in contempt. 

But is a mere proffer completed before sentencing enough? No, it isn't. To get the safety valve provision the sentencing guidelines clearly call for the defendant to come clean in a complete and truthful way in the proffer to persuade the sentencing judge that the defendant has been honest. (see US v. Brownlee, 204 F.3d 1302)

We live in an era of prison over-incarceration because federal and state judges no longer have sentencing discretion in nonviolent drug crimes. Anytime the safety valve can be used to avoid a mandatory minimum the judge becomes a free agent who can finally give a much fairer sentence to the defendant.

No comments: