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What is a “Safety Valve” in a Federal Drug Case?

Posted by John Rogers | Feb 02, 2021

A defendant charged with a federal drug crime may be subjected to a mandatory minimum sentence of five or ten years. This means the judge has no ability to sentence a defendant below the mandatory minimum unless (1) the defendant provides substantial assistance cooperation, or (2) is eligible for a safety valve. Either of these exceptions must be satisfied prior to the sentencing hearing.

The safety valve statute is governed under 18 U.S.C. § 3553(f). It is a statutory mechanism that permits a judge to sentence a drug offender below the mandatory minimum sentence. The legislative intent behind its enactment was to allow peripheral figures with relatively minor criminal records a chance to receive a lesser sentence in drug trafficking cases. For example, the punishment for a drug cartel leader should not align the same as a small street courier.

To be eligible for a safety valve, a defendant must satisfy each of the following prongs prior to sentencing:

  1. The defendant does not have:
  • More than four (4) criminal history points within the last ten years, excluding any points resulting from 1-point offenses;
  • A prior three-point offense;
  • Prior two-point violent offense
  1. The defendant did not use any of the following in connection with the offense:
    • Violence
    • Credible threats of violence
    • Possess a firearm or dangerous weapon
  2. The offense did not result in death or serious bodily injury to another;
  3. Defendant was not a:
    • Organizer,
    • Leader,
    • Manager,
    • Supervisor,
    • Or engaged in a continuing criminal enterprise;
  4. No later than the time of the sentencing hearing, the defendant provided prosecutors 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 plan or scheme. However, the fact that a defendant does not provide useful information to the prosecutor does not preclude compliance with this requirement.[1]

Part 5 requires a defendant to inform the government of all information and evidence about the case. This ordinarily requires a defendant to meet privately with federal agents and prosecutors to discuss the case. The accused must be truthful with the government, otherwise the defendant can be charged with providing a false statement, and the defendant will generally not be eligible for a safety valve. In addition, providing false information is obstruction of justice, an aggravating factor for a longer prison sentence.

Obtaining a safety valve allows a defendant to receive a lesser sentence than what the statute mandates. If you have been charged are under investigation for a federal drug crime, then contact our office today to schedule a free consultation. Call us to speak with an experienced federal criminal defense attorney. We handle federal crimes all throughout California including Orange County, Santa Ana, Los Angeles, Riverside, Fresno, San Diego, San Francisco, Sacramento, Santa Clara, and Oakland.

Legal Footnotes:

[1] See 18 U.S.C. § 3553(f) – (“Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that— (1) the defendant does not have— (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, 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. Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.”)

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John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility

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