by John Lovell

I recently wrote about mandatory minimum sentences in federal court. There is a means to be sentenced below the mandatory minimum sentence, the “safety valve” provision.

First, let me tell you what the safety valve is not: It is not a first offender statute similar to the Georgia statute where, when certain conditions are met, there is no conviction on the record of the beneficiary. A federal conviction, with rare exceptions, remains a federal conviction for life.

Safety valve is only available for certain narcotics related crimes.

There are two benefits obtained from safety valve in United States District Court: 1) A two level reduction in the sentencing guidelines, and 2) “Permission” for a United States District Judge to sentence below the guidelines.

There are five requirements to be granted a safety valve:

(1) No more than 1 criminal history point under the sentencing guidelines (you will need to consult an attorney as calculation of criminal history points can be tricky. For instance, one could be on probation for shoplifting a $25 pair of sunglasses while committing the crime charged in federal court and not be eligible for safety valve);

(2) The accused “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 anyone;

(4) The accused was not a leader or organizer of the offense; and

(5) the person told the prosecutor all that he knows about the offense.

The last requirement can be tricky. The person seeking safety valve must meet with the Assistant United States Attorney (AUSA) and, usually, one or more agents (the case agent) and tell them everything they know about the case. Technically, it is not “cooperation,” but, in practice, it often becomes cooperation. The AUSA and case agent are permitted to ask questions. They may ask for names, locations, and endless other details. If, at sentencing, the AUSA tells the judge that you were not truthful, and the judge believes the AUSA, safety valve must be denied. Of course, a zealous attorney will assist in proving that the statement was truthful where facts demonstrate that it was truthful. However, the best practice is to not participate in the safety valve unless you are prepared to tell the complete truth.

The best advice: Seek the advice of an attorney with extensive experience in federal court.