Assessing Truthfulness for Safety Valve Credit in the Federal Criminal Justice System

Sentencing for all defendants in the federal criminal justice system involves calculating and considering the sentencing guidelines. The United States Sentencing Commission publishes a complex set of rules, referred to as the U.S. Sentencing Guidelines (U.S.S.G.) that federal judges must consider when deciding criminal sentences. 

The rules are utilized to determine a defendant’s criminal history category and total offense level, which corresponds to a recommended sentencing range set forth in a chart known as the U.S. Sentencing Table.  The recommended sentencing is most often a term of incarceration measured in a period of months, known as the sentencing guidelines range. 

Applicable guidelines before and after 2005

Prior to 2005, the applicable guidelines range was binding on federal judges and dictated the sentences they imposed.   However, on January 15, 2005, the United States Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005).  This seminal decision held that the U.S. Sentencing Guidelines were no longer binding on federal judges. 

The Supreme Court indicated that while the guidelines are a useful sentencing tool and should be considered, federal judges have discretion to decide the ultimate criminal sentence to be imposed in each case, whether it be within, below, or above the recommended guidelines range. 

This major development in federal criminal practice also restored to lawyers the ability to use creativity, artfulness, and advocacy to represent defendants at sentencing hearings.  

Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

One of the most highly sought-after U.S. Sentencing Guidelines provisions by federal drug offenders is U.S.S.G. § 5C1.2, entitled Limitation on Applicability of Statutory Minimum Sentences in Certain Cases.   This is more commonly referred to as the safety valve provision. 

Federal criminal defendants convicted of felony drug crimes that call for mandatory minimum jail sentences (e.g., 21 U.S.C. 841 (b)(1)(A) has a mandatory minimum jail sentence of ten (10) years and 21 U.S.C. 841 (b)(1)(B) has a mandatory minimum jail sentence of five (5) years) may escape mandatory minimum jail time if they qualify for the safety value credit.

In order to receive the safety valve, a defendant must satisfy five criteria: 

• (1) he or she must not have more than one criminal history point, as determined under the sentencing guidelines criminal history calculations;
• (2) his or her case must not have invovled the use of violence or threats of violence, or the possession of a firearm or other dangerous weapons;
• (3) the offense did not result in death or serious bodily harm to another person;
• (4) he or she was not was not an organizer, leader, manager, or supervisor of others in the offense, as determined by the sentencing guidelines and was not engaged in a continuing criminal enterprise; and
• (5) not later than the time of sentencing, the defendant must truthfully provide the government with all information and evidence he or she has concerning the offense(s).

Satisfying the fifth criterion necessary to receive safety valve credit involves attending one or more meetings with the government. 

Proffer sessions

These meetings, known as proffer sessions, are attended by the defendant, defense counsel, counsel for the government, and one or more law enforcement agents.  If the defendant cannot speak English, an interpreter fluent in the defendant’s language is also present.  The purpose of the meeting is to question and debrief the defendant about his or her own misconduct, as well as his or her knowledge about the misconduct of others.

The only rule applicable to the defendant at a safety valve proffer is to be truthful.  Whether or not a defendant is truthful at a safety valve proffer is often a matter of opinion.   During the proffer, the government poses questions to the defendant for which it either knows the answers or believes it knows the answers. 

If the defendant’s answers match those of the government, it will support his or her receipt of the safety valve credit. 

Sometimes the government poses questions to which it does not know the answers but has an opinion or theory as to what the answers should be, perhaps when considering the overall case evidence, or information received from other sources, such as cooperating witnesses, confidential informants, or other government agencies. 

If the defendant’s answers match the government’s opinion or theory, again, it will support awarding safety valve credit at sentencing.  

if the government supports a defendant’s receipt of the safety valve credit

Where the government supports a defendant’s receipt of the safety valve credit, such is relayed to U.S. Probation and included in a defendant’s presentence report, which is the document reviewed by a federal judge before imposing sentence. 

Where the parties and Probation agree that the defendant qualifies for the safety value, it is inevitable the defendant will receive a -2 point reduction in his or her U.S.S.G. calculation and escape a mandatory minimum jail term, where applicable.   It is when the parties do not agree on safety valve eligibility that things can become tricky.

If the government does not support awarding a defendant with the safety valve

If the government does not support awarding a defendant with the safety valve, it is most often because prosecutors or law enforcement agents do not believe the defendant was truthful during the proffer.

This may be attributable to the defendant providing false information or failed to make full disclosures during the proffer session(s).

If this occurs, some defendants are afforded a second opportunity to attend another proffer session to correct or amend the prior statements.  

In cases where another chance is not given or if afterwards, the government still does not believe the defendant, this is communicated to Probation, which either fails to include safety value eligibility in the presentence report or reports that the defendant did not satisfy the fifth component of the safety valve criteria.  

If the government and Probation do not support a defendant’s receipt of safety valve credit

If the government and Probation do not support a defendant’s receipt of safety valve credit, the defendant, with the assistance of counsel, may apply directly to the Court for such credit at or before the time of sentencing.   This is precisely what occurred in United States v. Martinez, 9 F.4th 24 (1st Cir. 2021).  

Opportunity to qualify for safety valve credit after the government concluded the defendant was not truthful during the safety valve proffer

After the government concluded the defendant was not truthful during the safety valve proffer, the defendant applied to the Court for safety valve credit.  The Court first adjourned the sentencing hearing and directed the parties to meet again, in an effort to afford the defendant with another opportunity to qualify for safety valve credit by disclosing truthful information.  

After an additional proffer session, the government did not change it view with respect to the defendant’s failure to make truthful disclosures.  The Court then conducted its own hearing on the issue.   At such a hearing, it is the defendant’s burden to show that he or she made complete and truthful disclosures for the purpose of receiving safety valve credit. 

In Martinez, the Court concluded that the defendant failed to meet her burden, thereby denying her safety valve eligibility.  As such, she was sentenced to a mandatory minimum term of five (5) years in person.  

The lesson to be learned from this decision is that defendants have a greater chance of receiving safety valve credit with the government’s assent, opposed to without it and having to apply for such relief from the Court.

If you are charged with a federal drug crime and have questions about your safety valve eligibility, call Federal Criminal Defense Lawyer John L. Calcagni III, today for a free consultation at 401-351-5100 or by email.