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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
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