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The New Safety Valve
Hibu Websites • Jul 09, 2019
Expanded Eligibility for Avoiding Mandatory Minimum Sentences in Federal Drug Cases
On December 21, 2018, President Trump signed into law the federal criminal sentencing reform known as “The First Step Act.” One of the Act’s significant changes to sentencing in federal drug cases is to greatly expand the application of the federal “Safety Valve” statute at 18 U.S.C. § 3553(f).
Many federal drug crimes, for example: Conspiracy, Distribution, Manufacture, Possession with Intent to Distribute, and Possession to name a few can carry with them a mandatory minimum sentence upon conviction. These mandatory minimums can be as much as 5, 10 even 20 years or more. The mandatory minimums can be triggered by the amount of drugs involved in the case and/or the client’s prior criminal record. There are three general ways in which a person charged with a federal mandatory minimum drug charge can avoid the mandatory minimum sentence: They can go to trial and beat the charges; they can cooperate with the prosecutor and provide authorities with “substantial assistance” in the prosecution of others, or they may qualify for the “Safety Valve.”
Under the old Safety Valve, a client could have no more than one prior criminal history point in order to be eligible to get a sentence below the mandatory minimum. Under the rules of the Federal Sentencing Guidelines this meant that anyone with a prior conviction that involved a sentence of 60 days or more within the past 10 years was not eligible for safety valve relief from the mandatory minimum sentence. Under the new Safety Valve, a person can have up to four prior criminal history points excluding any prior one point offenses, as long as they do not have any prior sentence of imprisonment of 13 months within the last 15 years or a sentence of imprisonment of at least 60 days for a violent offense within the last ten years.
Those federal defendants who are eligible for new Safety Valve should also be eligible for a two-point reduction in their federal sentencing guidelines offense level. However, in a likely oversight, Congress in the First Step Act did not amend the federal guidelines sections that deal the “Safety Valve” and this two-point reduction. Guidelines sections 5C1.2 and 2D1.1(18) provide for this two-point reduction in certain drug cases. Section 5C1.2 sets forth the requirements to meet the “safety-valve” statute. The problem is section 5C1.2 still reflects the old safety valve law’s requirement that the defendant have no more than one criminal history point. Guidelines section 2D1.1(18) separately provides that if a defendant in a federal drug case meets the requirements of section 5C1.2, then they receive a two-point reduction in their offense level. Unfortunately, after the First Step Act, and because of the drafting oversight, many people who qualify for safety valve relief from the mandatory minimum will have more than one criminal history point, and might think that they do not qualify for the two-point reduction in 2D1.1 (18) as a result. This should not be the case. Guidelines section 5C1.2 itself specifically refers to the fact that it is simply reiterating the requirements of 18 U.S.C. § 3553(f). Defense counsel should point out this fact to the client, prosecutor, probation office and the judge as well. Its is almost certain that section 5C1.2 has been amended by implication and should be read to conform to the First Step Act’s revision of 3553(f).
Many federal drug crimes, for example: Conspiracy, Distribution, Manufacture, Possession with Intent to Distribute, and Possession to name a few can carry with them a mandatory minimum sentence upon conviction. These mandatory minimums can be as much as 5, 10 even 20 years or more. The mandatory minimums can be triggered by the amount of drugs involved in the case and/or the client’s prior criminal record. There are three general ways in which a person charged with a federal mandatory minimum drug charge can avoid the mandatory minimum sentence: They can go to trial and beat the charges; they can cooperate with the prosecutor and provide authorities with “substantial assistance” in the prosecution of others, or they may qualify for the “Safety Valve.”
Under the old Safety Valve, a client could have no more than one prior criminal history point in order to be eligible to get a sentence below the mandatory minimum. Under the rules of the Federal Sentencing Guidelines this meant that anyone with a prior conviction that involved a sentence of 60 days or more within the past 10 years was not eligible for safety valve relief from the mandatory minimum sentence. Under the new Safety Valve, a person can have up to four prior criminal history points excluding any prior one point offenses, as long as they do not have any prior sentence of imprisonment of 13 months within the last 15 years or a sentence of imprisonment of at least 60 days for a violent offense within the last ten years.
Those federal defendants who are eligible for new Safety Valve should also be eligible for a two-point reduction in their federal sentencing guidelines offense level. However, in a likely oversight, Congress in the First Step Act did not amend the federal guidelines sections that deal the “Safety Valve” and this two-point reduction. Guidelines sections 5C1.2 and 2D1.1(18) provide for this two-point reduction in certain drug cases. Section 5C1.2 sets forth the requirements to meet the “safety-valve” statute. The problem is section 5C1.2 still reflects the old safety valve law’s requirement that the defendant have no more than one criminal history point. Guidelines section 2D1.1(18) separately provides that if a defendant in a federal drug case meets the requirements of section 5C1.2, then they receive a two-point reduction in their offense level. Unfortunately, after the First Step Act, and because of the drafting oversight, many people who qualify for safety valve relief from the mandatory minimum will have more than one criminal history point, and might think that they do not qualify for the two-point reduction in 2D1.1 (18) as a result. This should not be the case. Guidelines section 5C1.2 itself specifically refers to the fact that it is simply reiterating the requirements of 18 U.S.C. § 3553(f). Defense counsel should point out this fact to the client, prosecutor, probation office and the judge as well. Its is almost certain that section 5C1.2 has been amended by implication and should be read to conform to the First Step Act’s revision of 3553(f).
Also, even after the First Step Act, there remains odd-interplay between the safety-valve statute and the guidelines themselves. While the statutory safety valve statute applies only to certain drug offenses that carry a mandatory minimum sentence, this is not true of the two-point reduction in offense levels in certain drug cases under federal sentencing guidelines section 2D1.1 (18). So, in the rare case that a client is facing a non-mandatory minimum federal drug prosecution, be sure to check the safety-valve eligibility requirement in 18 U.S.C. § 3553 (f) – at least until guidelines section 5C1.2 is formally amended, to argue the client is eligible for the two-point reduction under guidelines section 2D1.1 (18).
If you or a loved-one are facing federal drug charges and have questions about what lies ahead, feel free to give me a call or drop me an email.
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Andy
The Law Office of Andrew M. Kohlmetz LLC Blog
The nation-wide COVID-19 health crisis has brought seemingly endless stories about people hoarding, and selling or reselling personal protective equipment (“PPE”) at huge price mark-ups. This type of hoarding or profiteering is no longer subject to the risk of social media and moral shaming. It can be criminal, and the FDA’s Office of Criminal Investigations (“FDA-OCI”)is aggressively pursuing people and business engaged in the distribution, sale and resale of PPE. On March 25, 2020, the federal Department of Health and Humans Services (“HHS”) by notice in the Code of Federal Regulations, designated a wide selection of PPE as “scarce materials or materials the supply of which would be threatened by accumulation in excess of reasonable demands of business, personal, or home consumption, or for the purpose of resale at prices in excess of prevailing market prices.” 85 Fed. Reg. 17592 . This designation includes many types of equipment including face masks, respirators, gowns, gloves, disinfecting supplies etc. The designation brings people or entities in the business of purchasing, selling or otherwise distributing PPE under the provisions of the federal Defense Production Act. (“DPA”) Under section 4512 of the DPA it is unlawful for anyone to “accumulate (1) in excess of the reasonable demands of business, personal, or home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.” Violation of this section of the DPA is a class A misdemeanor and carries a potential sentence of up to one year in jail and a fine of $10,000. 50 U.S.C. §§ 4152, 4153 . The FDA-OCI and other federal civil and law enforcement agencies are actively looking for and investigating persons involved in the purchasing, selling or otherwise distributing PPE. In some cases it has been discovered that certain PPE was counterfeit, or rebranded and marketed for originally unauthorized – even patently false purposes such as a “COVID-19 cure” or “effective anti-viral protection.” The making of any such false or misleading claims or the sale of counterfeit and/or expired products could also give rise to far more serious federal wire and or mail fraud charges. If you are engaged in the purchase, distribution or sale of PPE such as N95 respirators, face shields, surgical masks, or other COVID-19 related-PPE, contact Andrew M. Kohlmetz , a federal criminal defense attorney familiar with the DPA and the recent COVID-19-related regulations, to discuss how to limit any potential liability. By the time the FDA-OCI reaches out, it might be too late.
Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.