WHAT IS THE SAFETY VALVE
The “safety valve” is a provision of the federal sentencing statute that requires a sentencing court to ignore any relevant applicable statutory mandatory minimum sentences and instead sentence a defendant in accordance with the US Sentencing Guidelines if a defendant meets certain criteria. If applicable, the safety valve, therefore, requires the court to impose a sentence lower than any mandatory minimum sentence applicable to the offense of conviction if the US Sentencing Guideline’s advisory sentence is lower than the mandatory minimum sentence.
An additional benefit of the safety valve’s application is a two-level reduction in the offender’s offense conduct level under the US Sentencing Guidelines.
BENEFITS OF THE SAFETY VALVE
The first benefit is the ability to receive a sentence below a mandatory minimum on certain types of drug cases. For example, some federal drug offenses impose a mandatory minimum sentence of 5 years. If the offender’s advisory guidelines range called for a sentencing range of below 5 years, say 24 months, the sentencing judge must nonetheless sentence the offender to 5 years. However, if the Court determines that the offender satisfies the requirements of the safety valve, the Judge is able to impose a sentence below the mandatory minimum sentence of 5 years. In fact, once the safety valve applies, and since the guidelines are advisory, the judge may impose a sentence below the advisory sentence of 24 months.
The second benefit of safety valve is a two-point reduction of the total offense conduct level. The advisory sentencing guidelines determine an advisory sentencing range based on an offender’s offense level and criminal history category. With a two offense level reduction, the result is a lower advisory guidelines range.
WHO QUALIFIES FOR THE SAFETY VALVE
The criteria to determine the safety valve’s application are found in the federal sentencing statute at §18 USSC 3553(f). Pursuant to §18 USC 3553(f), the offender is eligible for the safety valve if:
(1) The offender has a limited criminal history/meaning the offender 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.
FURTHER EXPLANATION OF §18 USSC 3553(f)(1)
The first criteria requires that an offender have a limited criminal history. The U.S. Sentencing Guidelines assign a certain number of points to prior convictions to establish an offender’s criminal history category. 3 points are added for any adult or juvenile convictions resulting in a sentence of over 13 months; 2 points are added for any adult or juvenile convictions resulting in a sentence ranging from 60 days to 13 months or sentences for offenses committed while in prison, on probation, on parole, supervised release or while being an escaped prisoner; and 1 point is added for any adult or juvenile convictions resulting in a sentence up to 60 days. The guidelines also create relevant time periods within which to count offenses.
FURTHER EXPLANATION OF §18 USSC 3553(f)(2)
The second criteria requires that the individual did not use violence, credible threats of violence or possess a firearm or other dangerous weapon nor aided or abetted, counseled, commanded, induced, procured, or willfully caused the co-conspirator’s violence or possession of a firearm or another dangerous weapon. The possession of a firearm or another dangerous weapon can either be actual possession or constructive possession. The possession of a firearm or a dangerous weapon needs to be related to the drug crime, as the law requires possession of a firearm or another dangerous weapon “in connection with the offense.”
FURTHER EXPLANATION OF §18 USSC 3553(f)(3)
The third criteria requires that the offense conduct did not result in death or serious bodily injury to any person. Serious bodily injury for the purposes of Safety Valve is defined as “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.”
FURTHER EXPLANATION OF §18 USSC 3553(f)(4)
The fourth criteria requires that the offender was not an organizer, leader, manager or supervisor of others. The offender will not qualify for the safety valve if any supervisory power or control over another participant in the offense is found. An offender who receives an offense level increase pursuant to §3B1.1 of the sentencing guidelines (aggravated role) will not qualify.
FURTHER EXPLANATION OF §18 USSC 3553(f)(5)
The fifth criteria requires that the offender truthfully provide all relevant information to the government and the information must be provided prior to sentencing.
WHAT OFFENSES QUALIFY FOR THE SAFETY VALVE
The offense of conviction is important to an analysis of the safety valve’s application as well. The law specifically limits the safety valve to particular offenses with mandatory minimum sentences, but not all. The statute limits the use of the safety valve to violations of §21 USC 841, 844, 846, 960, and 963 and §46 USC 70503 and 70506.
Attorney Kirk Truslow's practice focuses solely on criminal defense in State and Federal Courts. In practice for thirty years, Truslow has successfully defended many cases in State and Federal Court, and has served as lead counsel in State and Federal Court jury trials. If you are being investigated or have been charged with a Federal Offense, contact attorney Kirk Truslow at 843.449.3304 or at email@example.com.
 The case of Pulsifer v. U.S. is currently pending in the United States Supreme Court. In Pulsifer, the Court will decide whether the statutory word “and” in 18 USC 3553(f)(1) means an offender must not have any of the criteria or that he must have them all.