Safety Valve at Federal Sentencing

Safety Valve at Federal Sentencing

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Safety Valve

In federal court, there are a number of charges that have mandatory minimum sentences.  If a charge comes with a mandatory minimum sentence, the judge must sentence the defendant to at least that amount of time in prison.  For example, if a conviction carries a 5 year mandatory minimum, the judge cannot sentence the defendant to less than 5 years in prison, even if that sentence exceeds the guidelines.

There are three exceptions to the minimum mandatory sentence requirement.  Two of those exceptions are available in a case where the defendant is “ratting” (or providing “substantial assistance” in a prosecution against someone else).  The third exception is called the safety valve, and does not require the government’s approval. 

How to qualify for the safety valve at sentencing in federal court

Qualification for the safety valve exception requires a defendant to satisfy five criteria.  The defendant’s past criminal record must be minimal; he must not have been a leader, organizer, or supervisor in the commission of the offense; he must not have used violence in the commission of the offense, and the offense must not have resulted in serious injury; and prior to sentencing, he must tell the government all that he knows of the offense and any related misconduct.

There are hundreds of federal criminal charges that carry mandatory minimum prison sentences.  Drug trafficking offenses are the most commonly prosecuted.  The safety valve (18 U.S.C. § 3553(f)), allows a sentencing judge to disregard a statutory minimum sentence for the benefit of a low-level, nonviolent, cooperative defendant with a minimal prior criminal record, convicted of certain mandatory minimum controlled substance offenses.

Low-level drug traffickers can avoid mandatory minimum sentences if they qualify for the safety valve.  It is available to qualified offenders convicted of violations of the drug trafficking, simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export acts.  It is not available to avoid the mandatory minimum sentences that attend some of the other controlled substance offenses, even those closely related to the covered offenses.  For example, convictions drug trafficking near schools, playgrounds, or public housing facilities are not qualified.  Recently, the First Step Act allowed safety valve relief to those convicted under the Maritime Drug Law Enforcement Act (MDLEA). 

How many criminal history points can you have to qualify for the safety valve

A defendant can qualify for the safety valve if he 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.


The criminal history point disqualification refers to the defendant’s prior criminal record.  The Sentencing Guidelines assign criminal history points based on a defendant’s past criminal record.  Prior sentences of imprisonment or juvenile detention of less than 60 days are assigned a single criminal history point.  Prior sentences of imprisonment or juvenile detention of from 60 days up to a year and a month are assigned two criminal history points; as are sentences imposed for offenses committed while the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release.

Prior sentences of imprisonment for a year and a month or more are assigned three criminal history points.  A number of convictions do not count, including the following:

  • Stale convictions
  • 15-year old, three-point convictions
  • 10-year old, one or two-point convictions, or
  • 5-year old, one or two-point juvenile adjudications
  • Summary court-martial convictions
  • Foreign convictions
  • Tribal convictions
  • Expunged, reversed, vacated, or invalidated convictions
  • Certain petty offenses or minor misdemeanors
  • Hunting and fishing violations, juvenile truancy, and the like, regardless of the sentence imposed
  • Gambling, prostitution, and the like if the offender was sentenced no more severely than to imprisonment for 30 days or less or to probation for less than a year
  • Similar offenses to those listed “by whatever name they are known”


The offense muse be nonviolent

The defendant must not have used 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, pursuant to 18 U.SC. 3553(f)(2).  The offense must not have resulted in death or serious bodily injury to any person, pursuant to 18 U.S.C. § 3553(f)(3).  The safety valve has two disqualifications designed to reserve its benefits to nonviolent offenders.  It is not triggered by the conduct of a co-conspirator, unless the defendant aided, abetted, counselled the co-conspirator’s violence or possession.  Disqualifying firearm possession may be either actual or constructive.  Constructive possession is the dominion or control over a firearm or the

place where one is located.  Disqualification requires the threat of violence or possession of a firearm “in connection with the offense,” sometimes characterized as “active possession.”  In many instances, possession of a firearm in a location where drugs are stored or transported, or where transactions occur, will be enough to support an inference of possession in connection with the drug offense of conviction.  On the other hand, a sentencing enhancement for a co-conspirator’s possession does not automatically preclude qualification for the safety valve.  The Sentencing Guidelines define “serious bodily injury” for purposes of Section 3553(f)(3) as an “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.”  

The defendant must be a single or low-level offenders

The defendant must not have been an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise, as defined in Section 408 of the Controlled Substances Act, 18 U.S.C. § 3553(f)(4).  The term supervisor is construed broadly and includes anyone who exercises control or authority of another during the commission of the offense.  The Sentencing Guidelines disqualify anyone who receives a guideline level increase for their aggravated role in the offense. 

The defendant must have talked to the government before sentencing

Before the sentencing hearing, the defendant must have truthfully provided to the Government all information and evidence he has concerning the offense(s) 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, pursuant to 18 U.S.C. § 3553(f)(5).  

Neither Section 3553(f) nor the Sentencing Guidelines explain what form the defendants’ full disclosure must take.  At least one court has held that under rare circumstances disclosure through the defendant’s testimony at trial may suffice.  Most often the defendant provides the information during an interview with prosecutors or by a proffer.  The defendant must disclose the information to the prosecutor, however.  Disclosure to the probation officer during preparation of the presentence report is not enough.  Interestingly, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety valve, although they may undermine his credibility.

If you or a loved one is facing federal criminal charges, our experienced defense attorneys can help.  Call Simons Law Office at 781-797-0555 for a free telephone consultation today.





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