Utilizing the Safety Valve as a Safe Haven in Federal Drug Conspiracy Prosecutions

Federal drug conspiracy charges can be daunting for defense attorneys and their clients. These cases are often the product of covert investigations spanning years. The quantity of narcotics and the conduct of the conspirators will dictate the potential penalties that can – and will – be imposed.

The Mandatory Minimum Sentence

Unlike a typical criminal prosecution, the defendant’s conduct and/or culpability does not necessarily determine their sentencing exposure in drug conspiracy cases. Rather, federal statutes allow the government to attribute the conduct of all coconspirators to each defendant who knew the purpose of the conspiracy and agreed to assist in its success. Th us, defendants can be subjected to significant mandatory minimum sentences despite their limited involvement in or knowledge of the overall conspiracy.


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Most federal statutes contain a maximum term of incarceration that a defendant will face if convicted of a particular offense. These statutes, however, afford the trial courts discretion to determine a fair and appropriate sentence. In such instances, trial courts are required to consider the recommended range, which is calculated by applying reductions and enhancements promulgated by the United States Sentencing Commission. These mathematical “adjustments” are based upon specific conduct or characteristics of the defendant as well as their conduct relative to the underlying offense.

For some offenses, Congress has removed the trial court’s discretion by requiring mandatory minimum terms of incarceration. Most mandatory minimum sentences apply to drug offenses and are oft en triggered by the quantity of narcotics involved in the conspiracy. These one-size-fits-all sentencing laws are said to provide uniformity and assurances that defendants receive a significant punishment for certain classes of offenses. However, mandatory minimum sentences can also undermine justice by preventing judges from tailoring a punishment in light of the individual defendant and the circumstances of their offenses.

What is the “Safety Valve?”

Th e safety valve is a statutorily created exception whereby certain defendants can avoid mandatory minimum sentences that would otherwise apply. Th e safety valve is codified in 18 U.S.C. § 3553(f) and instructs trial courts to impose a sentence without regard to any statutory minimum sentence if the court finds that the following conditions have been satisfied:


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(1) the defendant does not have more than 1 criminal history point, 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 ordinance 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 and was not engaged in a continuing criminal enterprise; and


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(5) at or before the time of the sentencing hearing, the defendant has truthfully provided the Government with all information and evidence that they have concerning the offense.

Attorneys must carefully review the evidence to determine whether the defendant satisfies the conditions for safety valve consideration.

The Safety Valve in Plea Negotiations

Many defendants facing federal drug conspiracy charges may consider cooperating with the government in an effort to secure a more favorable plea agreement. In most cases, defendants who have the most information regarding the criminal activity receive substantial consideration because of the value of their information. Th is system benefits defendants who bear more culpability for the overall operation of the conspiracy. Because of this, less-culpable defendants are at a significant disadvantage and oft en face harsher sentences.

Th e safety valve counteracts this disparity by permitting courts to sentence minor participants without regard to mandatory minimum sentences. And, since the safety valve requires the defendant to disclose all information and evidence to the government, the statute provides that a defendant is not precluded from obtaining relief if their information is not useful or if the government is already aware of it.

Counsel should prepare the client for their “proffer” meeting with the government. Although the defendant’s lack of information is not a prohibitive factor to obtaining relief, their refusal to truthfully and completely disclose information they do possess will be detrimental to their case.

Other Means to Reduce the Sentence

Although the safety valve removes any mandatory minimum provisions, trial courts are still required to consider the factors set forth in 18 U.S.C. § 3553(a), as well as the recommended guidelines range in determining an appropriate sentence. Removing the mandatory minimum threshold is only the first step in counsel’s efforts to obtain a favorable and appropriate disposition. Attorneys must also explore other potential grounds for a reduced sentence, including arguing for reductions for the defendant’s limited role in the offense pursuant to U.S.S.G. § 3B1.2, as well as any other grounds for a downward departure pursuant to 18 U.S.C. § 3553(a). Eric Nemecek 

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