is a safety valve snitching factory

In federal cases, Congress not only defines what is a crime that can cost the accused both freedom and property, but it also passes statutes that control how federal judges are allowed to sentence those who have been convicted of federal drug crimes.  For instance, federal judges must follow the United States Sentencing Guidelines when sentencing someone upon conviction of a federal crime.  For more on sentencing guidelines and how they work, read our discussion in Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases.

Sometimes, Congress sets a bottom line on the number of years someone must spend behind bars upon conviction for a specific federal crime.  The federal judge in these situations has no discretion: he or she must follow the Congressional mandate.

These are called “mandatory minimums” in sentencing.  They are commonly applied in federal drug cases in here Texas and elsewhere across the country.  For more detail, read Mandatory Minimum Penalties in Federal Sentencing.

Of course, there are a tremendous number of federal laws that define federal drug crimes.  For purposes of illustration, consider those federal drug crimes that come with either (1) a sentence of 10 years to life imprisonment or (2) those that come with a sentence of 5 to 40 years behind bars, both defined as the mandatory sentences to be given upon conviction for these defined federal drug crimes.

For reference, these refer to the statutory language of 21 U.S.C. §841(b)(1)(A) and 21 U.S.C. §841(b)(1)(B), which instruct the federal judge on how he or she shall sentence anyone convicted of the manufacture, distribution, or dispensing of a controlled substance (i.e., an illegal drug) or possession with intent to either of these things.

Key here:  the judge is given the mandatory minimum number of years that the accused must spend behind bars by Congress via the federal statutory language.  A federal judge cannot go below ten (10) years for a federal drug crime based upon 21 U.S.C. §841(b)(1)(A).  He or she cannot go below five (5) years for a federal drug crime conviction based upon 21 U.S.C. §841(b)(1)(B).

How do you know if you are charged with one of these federal drug crimes that come with a mandatory minimum sentence of either 5-to-40 years (a “b1B” case) or 10-to-life (a “b1A” case)? Read the language of your Indictment. It will specify the statute’s citation.  If you do not have a copy of your Indictment, please feel free to contact my office and we can provide you a copy.

Can’t there be any way to get around that set-in-stone bottom line?  Yes.  There is also a statutory exception which allows the federal judge to dip below that mandatory minimum number of years in some situations.  It is called the “Safety Valve” defense.

Congress has passed another law that provides for an exception to the instructions given to federal judges on the mandatory minimum sentences that must be given according to Congressional mandate.

The law, 18 U.S.C. § 3553(f), provides for an exception that allows the federal judge some leeway in drug crime convictions where he or she would otherwise be required to follow the mandatory minimum sentencing statute.  This is the Safety Value statute. It states as follows:

(f)Limitation on Applicability of Statutory Minimums in Certain Cases.—Notwithstanding anyother provision of law, in the case of an offense under section 401, 404, or 406 of theControlled Substances Act(21 U.S.C. 841, 844, 846), section 1010 or 1013 of theControlled Substances Import and Export Act(21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission undersection 994 of title 28without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(A)more than 4 criminal history points, excluding any criminal history points resulting from a 1-point 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;

(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 theControlled 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.

Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to aviolent offense.

The only way to allow for this exception to be applied in a federal sentencing hearing is for the defense to argue its application and to provide authenticated and admissible support for use of the Safety Valve.

How does the defense do this?  It takes much more than referencing the exception to the general rule itself.  The defense will have to demonstrate the convicted defendant meets the Safety Valve’s five (5) requirements.

Federal sentencing has its own reference manual that is used throughout the United States, called the United States Sentencing Guidelines (“USSG”).  We have gone into detail about the USSG and its applications in earlier discussions; to learn more, read:

In short, the idea is that the USSG work to keep things fair for people being sentenced in federal courts no matter which state they are located.  Someone convicted in Texas, for instance, should be able to receive the same or similar treatment in a federal sentencing hearing as someone in Alaska, Maine, or Hawaii.

Part of how the Sentencing Guidelines work is by assessing “points.”  Offenses are given points.  The points tally into a score that is calculated according to the USSG.

Essentially, the accused can be charged with a three-point offense; a two-point offense; or a one-point offense.  The number of points will depend on things like if it is a violent crime; violent crimes get more points than non-violent ones.  The higher the overall number of points, and the ultimate total score, then the longer the sentence to be given under the USSG.

For a successful safety valve defense, the defense has to show that the total Criminal History Points are four (4) or less.  If you have a maximum of four Criminal History points, you have met the first criteria for the safety valve.

Note:  prior to the passage of the First Step Act, things were much harsher.  If the defense had even two Criminal History Points, then the accused was ineligible for the safety valve.  The First Step Act increased the number of points, or score, from one to four as the maximum allowed for application of the safety valve.  For more on the First Step Act, see The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2 and The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2.

Looking at the Safety Valve statute ( 18 U.S.C. § 3553(f)), the second step in achieving application of the safety valve defense involves the circumstances of the underlying criminal activity and whether or not it involved violence of threats or violence, or if the defendant possessed a firearm at the time.

It has been my experience that it is pretty common for there to be a firearm of some sort involved in a federal drug crime prosecution.  Here, the impact of Texas being a part of the Fifth Judicial District for the United States Court of Appeals (“Fifth Circuit”) is important.

This is because this overseeing federal appeals court has looked at  18 U.S.C. § 3553(f) and its definition of possession of a firearm, and come to a different conclusion that the definition given in the USSG.

In the USSG, two points are given (“enhanced”) for possessing a firearm in furtherance of a federal drug trafficking offense.  See,  USSG §2D1.10, entitled Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy.

Meanwhile, the Fifth Circuit has ruled that under the Safety Valve Statute, the standard for the government  is much higher. According to their ruling, in order to be disqualified from application of the safety valve because of possession of a firearm, the defendant has to have been actually in possession of the firearm or in construction possession of it. See, US v. Wilson, 105 F.3d 219 (5th Cir. 1997).

Consider how this works in a federal drug crime conspiracy case. Under the USSG, a defendant can receive two (2) points (“enhancement”) for possession of a firearm even if they never had their hands on the gun.  As long as a co-conspirator (co-defendant) did have possession of it, and that possession was foreseeable by the defendant, then the Sentencing Guidelines allow for a harsher sentence (more points).

The position of the Fifth Circuit looks upon this situation and determines that it is one thing for the defendant to have possession of the firearm, and another for there to be stretching things to cover constructive possession when he or she never really had the gun.

This is the example of the importance of effective criminal defense representation, where research reveals that it is easier to achieve a safety valve defense with a reference to case law.  The Fifth Circuit allows a situation where someone can get two (2) points under the USSG (“enhancement”) and still be eligible for the safety valve defense.

The commentary to § 5C1.2(2) provides that “[c]onsistent with [U.S.S.G.] § 1B1.3 (Relevant Conduct),” the use of the term “defendant” in § 5C1.2(2) “limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” See U.S.S.G. § 5C1.2, comment. (n.4). This language mirrors § 1B1.3(a)(1)(A). Of import is the fact that this language omits the text of § 1B1.3(a)(1)(B) which provides that “relevant conduct” encompasses acts and omissions undertaken in a “jointly undertaken criminal activity,” e.g. a conspiracy.

Being bound by this commentary, we conclude that in determining a defendant’s eligibility for the safety valve, § 5C1.2(2) allows for consideration of only the defendant’s conduct, not the conduct of his co-conspirators. As it was Wilson’s co-conspirator, and not Wilson himself, who possessed the gun in the conspiracy,the district court erred in concluding that Wilson was ineligible to receive the benefit of § 5C1.2. Because application of § 5C1.2 is mandatory, see U.S.S.G. § 5C1.2 (providing that the court “shall” impose a sentencing without regard to the statutory minimum sentence if the defendant satisfies the provision’s criteria), we vacate Wilson’s sentence and remand for resentencing.

The defense must also be able to prove that the defendant’s role in the underlying criminal offense did not result in the death or bodily injury of someone else to achieve the safety valve defense under  18 U.S.C. § 3553(f).

In drug cases, this can mean more than some type of violent scenario.  The mere type of drug or controlled substance involved can impact the success of this defense.  Sometimes, the drugs themselves are the type that can cause severe harm or death.  Several controlled substances can be lethal.  In a federal drug case, there is a special definition for death resulting from the distribution of a controlled substance.

If the defense can prove with authenticated and admissible evidence that the defendant did not distribute a drug or controlled substance that ended up with someone’s death, or severe bodily injury, then the safety valve defense will be available to them.

Role adjustments happen when someone is alleged to be involved in a conspiracy, and they act in some type of position of responsibility.  They can be a leader, or organizer, or somebody who supervises other people in the operations, all as defined in the USSG.

If the defendant was deemed to meet one of these definitions, and had some kind of role involving responsibility or power in the illegal drug operations, then the USSG will add points (“enhance”) as a “role adjustment.”

If you are to achieve the safety valve defense, you cannot receive any “role adjustment” under the Sentencing Guidelines.  This must be established to the court by your defense attorney at the sentencing.

Finally, under 18 U.S.C. § 3553(f) the defense must show that the defendant has given a full and complete statement to the authorities.  Specifically, the statute requires a showing that:

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.

I realize that for many people, this language brings with it the assumption that the defendant has to be a snitch in order to meet this requirement for the safety valve defense.  This is not true.

This law does not require a defendant to cooperate against other people in a conspiracy, be it friends or family members or anyone else.  It does not force a defendant to turn over new or additional evidence to the police or prosecutors so the government can use it against other defendants.  It does not mean the defendant has to cooperate with the government to help them go after unindicted co-conspirators, either.

With an experienced criminal defense lawyer, what it does mean is that the defendant has a meeting with the authorities with the goal of meeting the Safety Valve Statute requirements and no more.

The attorney can limit the scope of the meeting.  He or she can make sure that law enforcement follows the rules for the meeting.   The meeting is necessary for the defendant to achieve a safety valve defense, so there is no way to avoid a safety valve interview.

To get the sentence that is below the mandatory minimum sentence, the meeting is a must.  However, it is not a free-for-all for the government where the defendant is ratting on other people.

One example involves a case where I represented a client before the federal district court in Corpus Christi, the United States District Court for the Southern District of Texas.  He was among several co-defendants charged in a conspiracy to distribute methamphetamine.

I arranged for my client to have his safety valve meeting as well as establishing the other criteria needed for application of the Safety Valve statute.  I was present at the meeting.  There was no cooperation regarding the other defendants, and he did nothing more than the minimum to qualify for the defense.  He was no snitch.

As a result, the safety valve was applied by the federal judge and my client achieved a safety valve application where he was sentenced to 8 years for distribution of meth: well below the 10 years of the mandatory minimums and the USSG calculation in his case of around 14 years.

Sadly, the same day that my client was sentenced, so were several of the co-conspirator defendants.  I was aware that they were also eligible for the safety valve defense.  However, the federal agent at the sentencing hearings that day told me that their lawyers never contact the government for a safety valve meeting.

They were never debriefed, so they could not meet the requirements for application of the safety value statute.  The judge had no choice –they each had to be sentenced to the mandatory minimum sentences under the law.

Once again, I cannot stress the importance of an experienced federal criminal defense lawyer to advocate on your behalf when you are being investigated, charged, or prosecuted for violation of federal criminal laws.

As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.

The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

A common requirement that disqualifies people is the prior criminal record requirement.  Basically, anything other than a minor one time conviction will disqualify you.  However, old convictions may not count and some minor convictions also do not count.  There is a whole section in federal sentencing guidelines manual that addresses which prior convictions count and how many points are assessed.

In order to get safety valve, you, through your criminal defense attorney, must contact the prosecuting attorney before your sentencing hearing, and tell them that you want to provide them with a statement.  You must be willing to tell them everything you know about the offense, who else was involved, and you must be forthcoming and truthful.  It will be up to the judge to determine whether you meet this requirement.  You should not wait until the last minute either, as the prosecutor has no duty to take your statement within a short period of time before the sentencing hearing and the judge has no duty to continue your sentencing hearing to give you time to provide the government with a statement.

One difference between Safety Valve and Substantial Assistance is that there is no requirement for you to cooperate against anyone else.  So, once your provide the information to the prosecutor, you should become eligible to seek safety valve at your sentencing, without having to cooperate against anyone else.

If you are not convicted under one of these statutes, there is no Safety Valve option.  For example, Safety Valve is not an option for someone convicted under the Aggravated Identity Theft statute that carries a 2 year minimum mandatory sentence consecutive to any underlying sentence.  Similarly, if you were convicted of similar conduct to those eligible for safety valve, but were convicted under a statute not listed above, you still would not be safety valve eligible.  For example, if you were convicted fo possession with intent to distribute cocaine while aboard a vessel subject to United States jurisdiction in violation of 46 U.S.C. app. §1903(a), you would not be eligible for safety valve, even though someone convicted of the same conduct on land would be eligible.

After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit.  Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Lasnetski Gihon Law and began defending citizens in criminal court.  He represents clients in both State and Federal criminal courts.

There is a lot written about federal sentencing and safety valves. What follows is a very brief overview of the federal safety valve available to those charged with certain drug offenses.

The safety valve is one of the ways you can get sentenced to less than the mandatory minimum. The law for the safety valve is codified under 18 USC § 3553(f). To qualify for the safety valve you need to meet all of the following criteria:You are with a charged a narcotics offense under of 21 U.S.C. §§ 841, 844, 846, 960, and/or 963

You have no more than one actual criminal history point. In other words, if the court agrees to “look the other way” in an attempt to get you down to one criminal history point, that won’t work. It needs to be no more than one actual criminal history point.

The Government is not alleging a “major role” under the USSG nor is the offense part of a “continuing criminal enterprise” (don’t worry if you’re charged with conspiracy under 21 U.S.C. § 841, that’s not the same as “continuing criminal enterprise” which is charged under 21 U.S.C. § 848.

You agree to give the Government a “full and truthful disclosure” about everything relating to your involvement in the offense. This usually means signing a limited immunity agreement. Sitting down your lawyer, the prosecutors, and the case agents, and telling them everything about your involvement in the case. It does not matter if your cooperation is helpful or even substantial.

It depends. Under USSG § 4A1.2(c), the following offenses do not count towards your criminal history unless you were sentenced to more than one year probation or served more than 30 days in jail:Reckless driving or careless driving

And the following offenses never count towards your criminal history, no matter what your sentence is:Juvenile “status offenses” like truancy or curfew violations

That depends on many factors. It depends on the type of plea agreement your attorney makes with the government, the range in the sentencing guidelines, mitigating factors presented by your attorney at sentencing, and of course, the particular judge presiding over your case.

Yes, that’s right. United States v. Booker 543 U.S 220 (2005), made the United States Sentencing Guidelines advisory. That means the guidelines are now only one of several factors the judge must consider consider at sentencing. Unfortunately, Booker did nothing to alter the laws regarding mandatory minimums. The mandatory minimums are still in place, which is why safety valve is so important if you’re facing a mandatory minimum sentence.

Speak to a California lawyer today if you are facing criminal charges. This is all very general information about safety valve sentencing. If you want to talk further about your particular case, feel free to contact me at (323) 633-3423 or send a message via the secure contact form on this page to schedule a free and confidential consultation.

Anytime a new penal statute uses the term “reform” you can take to it the bank that the result will produce just the opposite; that its objective to correct a perceived and politically charged threat will, more than likely than not, harvest a new crop of worse injustices.

Thus is the case with the federal Sentencing Reform Act of 1984 (“SRA”), passed with strong bipartisan support during the Reagan presidency after many years of debate and study. The first indicator that the SRA was not about “reform” was that it was born out of the omnibus Comprehensive Crime Control Act which was designed to overhaul the federal criminal justice system. Notwithstanding that SRA was the afterbirth of a sweeping congressional effort to “get tough” on crime, proponents of SRA hailed its primary purposes which were: “(1) to establish comprehensive and coordinated statutory authority for sentencing [currently found in 18 U.S.C. § 3553]; (2) to address the seemingly intractable problem of unwarranted sentencing disparity and enhance crime control by creating an independent, expert sentencing commission to devise and update periodically a system of mandatory sentencing guidelines; and (3) principally through the sentencing commission to create a means of assembling and distributing sentencing data, coordinating sentence research and education, and generally advancing the state of knowledge about criminal behavior.”

One of the SRA’s chief sponsors, the late Sen. Edward M. Kennedy, believed the U.S. Sentencing Commission (“Commission”) and the U.S. Sentencing Guidelines (“Guidelines”) the Commission would promulgate would accomplish three primary policy goals: 1) produce just punishment, deterrence, incapacitation and rehabilitation; 2) provide certainty and fairness by eliminating the sentencing disparity, which had plagued the federal court system, through individualized sentencing that considered both aggravating and mitigating factors; and 3) enhance the knowledge of human behavior as it pertained to the criminal justice system.

Last year, the Commission issued a report based upon independent analysis and research,Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Regression Analysis, which made the following findings:

Black male offenders received longer sentences than white male offenders. The differences in the sentence length have steadily increased since Booker [a 2005 U.S. Supreme Court decision which held the U.S. Sentencing Guidelines are “advisory” and not mandatory as they had been uniformly interpreted since SRA’s enactment].

Female offenders of all races received shorter sentences than male offenders. The difference in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).

Non-citizen offenders received longer sentences than offender who were U.S. citizens. The differences in sentence length have steadily increased since Booker.

Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.

Thus, thirty-six years after SRA’s enactment, federal sentencing practices are just as arbitrary, discriminatory, and counterproductive to the goals of justice as they were before SRA’s enactment. This has been especially true in federal sentencing practices in drug cases, most notably those involving crack/powder cocaine. Besides the individual biases of some federal judges in these cases, the primary problem is the mandatory minimum sentence requirements in most drug cases.

Mandatory minimum sentencing was created by Congress in 1986, two years after the enactment of SRA. The Drug Policy Alliance (“DPA”) points out that mandatory drug sentences are based on three factors: type of drug, weight of the drug mixture (or alleged weight in conspiracy cases), and the number of prior convictions. The purpose of mandatory minimums was to target “drug kingpins” but, as DPA notes, the U.S. Sentencing Commission has found that only 5.5 percent of the crack cocaine cases and 11 percent of all federal drug cases involve “high-level drug dealers.”

In 1994, in another futile effort to eliminate the ever-increasing disparity between the “least culpable” and “more culpable” drug offenders, Congress enacted more “sentencing reform” legislation. This time it was the Mandatory Minimum Sentencing Reform Act, codified in § 3553(f), which created a “safety valve” in the Guidelines. The District of Columbia Court of Appeals in In Sealed Case (Sentencing Guidelines “Safety Valve”) in 1997 said the “safety valve” provisions ofU.S.S.G. § 5C1.2 requires U.S. district court judges to disregard mandatory minimums in certain drug cases and instead sentence a defendant pursuant to the Guidelines when he/she satisfies five indices of reduced culpability: “1) the defendant has no more than one criminal history point; 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; 4) the defendant was not a leader or organizer of the offense; and 5) the defendant has fully cooperated with the government.”

The defendant must satisfy all five indices to warrant a “safety valve” departure from a mandatory minimum sentence. In 2008 the Families Against Mandatory Minimums (“FAMM”) found that since 1995 more than 63,272 federal drug offenders received the benefit of a “safety valve” sentence, which saved the federal government $25,000 per year, shaved off each offender. FAMM touts the benefits of federal “safety valve” provisions as follows:

Give courts flexibility to prevent unjust sentences: safety valves allow courts – in very narrow circumstances – to sentence a defendant below the mandatory minimum if the mandatory minimum is too lengthy or doesn’t fit the offender or the crime.

Protect public safety: safety valves don’t mean that people get off without any prison time, just that they don’t get any more prison time than they deserve. Safety valves thus help 1)  prevent prison overcrowding, 2) avoid the need to release violent offenders early to make room for nonviolent offenders entering the system, and 3) save scarce space and resources for those who are a real threat to the community.

Save taxpayers money: when courts sentence offenders below the mandatory minimum, they spend less time in prison than they would otherwise be required to, which results in less corrections costs for taxpayers.

FAMM, however, advocates that the “safety valve” provisions not only be expanded for all drug offenders but extended to all federal offenses mandating a mandatory minimum. The advocacy group points out that the current “safety valve” provisions are so strict that many nonviolent, low-level drug offenders cannot satisfy its five indices. The group notes that in 2008 while 52 percent of all drug offenders had little or no criminal history and 80 percent of them did not have or use a weapon and only 5.7 percent were considered leaders, managers or supervisors of others, only 25 percent of the drug offenders benefitted from the safety valve provisions.

The Commission disputes these FAMM conclusions. In a March 2009 report titled “Impact of Prior Minor Offenses on Eligibility for Safety Valve,” the Commission reported:

“As part of its ongoing review and amendment of the guidelines, the commission, in August 2006, began to examine various aspects of the criminal history rules located in Chapter Four of the guidelines, including the treatment of misdemeanor and petty offenses (minor offenses). The Commission hosted two roundtable discussions on November 1, 2006 and November 3, 2006, in Washington, D.C., to solicit input from judges, defense attorneys, probation officers, Department of Justice representatives, and members of academia as one component of this review.  The Commission also gathered information through its training programs, the public comment process, and comments received during a public hearing held in March 2007.

“During the process, some commentators hypothesized that the inclusion of minor offenses in the criminal history calculation has an unwarranted adverse impact on offenders’ criminal history scores and, ultimately, their guideline ranges and sentences. In April 2007, the Commission promulgated an amendment to respond to these concerns and modify the provisions determining whether and when certain minor offenses are counted in the criminal history score.

“The dialogue leadings to the promulgation of the amendment focused, in part, on the frequency with which prior minor offenses caused a defendant convicted of drug trafficking to become ineligible to receive the benefit of the safety valve relief provided by statute and guideline. Data reviewed by the Commission in connection with the amendment showed that relatively few drug trafficking offenders are excluded from receiving the safety valve because of the guideline provision regarding minor offenses.”

In support of this conclusion, the Commission said it examined 24,483 drug offenders, and that 9,115 of them (37.2 percent) received the benefit of the safety valve provisions. Of the 9,115 safety valve beneficiaries, 1,519 of the offenders had a prior “minor offense” in their criminal history which did not affect their safety valve eligibility. Further, the Commission pointed out that of the 15,368 drug trafficking offenders who did not qualify for safety valve consideration, only 788 of them had a prior “minor offense” in their criminal history but who did not qualify because they failed to satisfy all five of the safety valve indices.

Whether the percentage of drug offenders who receive safety valve consideration is 25 percent as stated by FAMM or 37 percent as stated by the Commission is relatively immaterial. The issue, we feel, is that the safety valve considerations are much too stringent to achieve meaningful sentencing reform. When less one-third of the offenders receive the benefit of a “reform” sentencing statute, then it cannot reasonably be said that the desired reform is truly meaningful.

We feel that only two of the five safety valve indices are relevant to meaningful reform objectives: whether a weapon was possessed or used during the offense; and whether the offense resulted in the death or serious bodily injury of anyone.

We would like to stress that we find it particularly offensive that a fundamental aspect of the safety valve statute is that the defendant must become a full-fledged “snitch” to secure the benefit, not only against himself but anyone else who may have been involved, no matter how remote, in any criminal activity associated with the offense. Failure to fully and completely “snitch” is a sufficient basis for the Government to oppose a safety valve benefit and for the court not to extend it.

Finally, we have not only become disillusioned with the Guidelines, even if they are now “advisory,” as a sentencing reform device but have become convinced they will never produce the fair and impartial justice they were designed to achieve in the federal sentencing process. While we are not prepared to return to unfettered judicial discretion in sentencing, we are now convinced that the Guidelines, regardless of how many times they are amended, are unworkable in producing equal, racially neutral sentencing practices in the federal courts.

The Guidelines, no matter their original intent, have not led to any meaningful reform.  The result of years of Guideline sentencing has been much less about than justice and fairness in sentencing than about treating individuals as generic automatons, who have no personal and unique histories, backgrounds or accomplishments.  The Guidelines have been, and continue to be, used to force defendants to plea guilty and cooperate with the Government or face a severe and draconian sentencing regime.  The Guidelines have been used to pressure defendants to accept plea agreements rather than exercise their right to trial by jury, for fear they will lose downward sentencing adjustments for “acceptance of responsibility” and saving the government time preparing for trial.  The Guidelines have led to a justice system dependent upon snitches, in which questionable cases are prosecuted by a Government, which understands the immense pressure place upon a defendant to plea guilty, regardless of meritorious defenses the defendant may have or the reality of actual innocence.  This is not the American way…

Many federal criminal defense attorneys are not aware of the pitfalls of the federal safety valve provisions. Persons charged with federal drug crimes need to retain an experienced criminal attorney familiar with all aspects of federal criminal law. An inexperienced or unknowing lawyer can expose a client to catastrophic risks. Here is why.

As we are all keenly aware, the federal government’s “war on drugs” is ensnaring hundreds of people with little or no criminal records who are caught up, for a myriad of reasons, with the distribution of drugs. This can range from a person carrying cash for a friend to pay for an airline ticket, to delivering a package to another person in exchange for cash to pay the rent or feed a child. Because of very harsh federal sentencing laws, the smallest players in a drug ring often end up being the most harshly treated. Most of time this is because the leaders of drug operations very often end up cooperating against others – including those below them whose “loyalty” they often gained through fear and threats of harm. Oftentimes, those persons caught on the lowest rungs of a drug conspiracy find themselves with few alternatives because they do not have significant information to provide to federal prosecutors, who retain exclusive control over who gets cooperation departures under the federal sentencing guidelines. As a result, defendants with minor or minimal culpability in a drug operation frequently end up on the receiving end of prosecutions involving tremendously high sentencing guidelines and, more critically, large minimum mandatory sentences.

In many situations, the only relief from mandatory sentences for those with little or no criminal history is the so-called “safety valve.” Many lawyers talk about the safety valve, but very few understand what it is and what it truly entails. It is perhaps the most misunderstood and most difficult opportunity for relief from mandatory minimum sentences and the sentencing guidelines. Federal crimes lawyers who do not specialize in federal criminal defense work run the risk of harming their clients through misguided efforts to gain relief under the safety valve provision.

It is critical to remember that there are only two ways to avoid minimum mandatory sentences upon conviction for a drug trafficking or drug conspiracy offense in federal court. One way is to cooperate with law enforcement and provide “substantial assistance” in the prosecution of others under section 5K1.1 of the guidelines. The other is to seek relief under the safety valve — Section 5C1.2 of the federal sentencing guidelines. (18 U.S.C. § 3553(f)) This section allows a judge to reduce federal sentencing guidelines and ignore mandatory minimum sentences in determining punishment for eligible defendants.

But while understanding the possible benefits of relief under the safety valve is easy, becoming eligible for the relief is more difficult and fraught with peril for the unwary defendant. In fact, a failed attempt to gain “safety valve” relief can have a tremendously negative impact on a federal criminal defendant.

Section 5C1.2 allows guideline reduction and relief from mandatory minimum sentences when 1) a defendant ‘s criminal history is one point or less under the guidelines, and 2) the defendant truthfully discloses before sentencing everything the defendant knows about his own actions and those who participated in the crime with him. While a defendant is not required to testify in court or become a cooperator, the section does requires that he sit down with federal agents and prosecutors and tell them everything he knows about the charged crime. While a defendant won’t be a witness against others in his case, he still must tell on them. Government agents can affirmatively use the defendant’s information against others in the case without any limitation.

For example, if the defendant tells agents that he stored drugs in his brother’s house, agents can use that information to get a search warrant and raid that house for evidence, even though the defendant would never want his brother to be harmed. Moreover, because the defendant would not be a “cooperator,” prosecutors would be free to name him in their search warrant applications and make no effort to hide the source of their information.

Talking to the government in the context of a safety valve interview can potentially expose the client to consequences worse than those faced by cooperating witnesses.

Next, the attorney has to be 100% certain that the client is telling everything he knows and is not holding back information about himself or others. This requires that attorney be sure of what the government knows in the case before allowing a client to meet for a safety valve interview. If the government thinks that the client is lying, they can make the safety valve process impossible by telling the court about their impressions. If the government can prove the client is lying, then a court is free to increase a client’s sentence for obstruction of justice. Even worse, a client may also lose guideline point reductions for accepting responsibility for the offense and become subject to harsh mandatory minimum sentences.

A defense attorney has to know what the evidence the government has before allowing his client to even think about the safety valve. Anything less can expose the client to catastrophic risk.

The bottom line is that defendants considering a “safety valve” reduction had better have counsel who is experienced in federal criminal law and the pitfalls of federal criminal statutes – even those designed to help defendants. Before becoming a defense attorney, I spent almost a decade prosecuting federal criminal cases in U.S. District Court in Maryland. If you have any questions, contact Federal defense attorney Andrew C. White at Silverman, Thompson, Slutkin & White. There is no situation with which we are not familiar.

If you are charged with a crime by the United States Department of Justice, you may be facing a mandatory minimum sentence, especially if you were arrested on federal drug charges or federal gun charges. However, you may be eligible for the safety valve provision which can significantly reduce your sentence. To learn more about the safety valve provision, along with the strict guidelines for qualifying, Bill Finn, a Raleigh federal lawyer, is sharing what you need to know.

Mandatory minimum sentences are set by Congress, rather than passed down by a judge. If an individual is found guilty of specific crimes or their plea bargain is accepted, they will automatically receive at least the minimum sentence stated by the law.

For example, if you are convicted of drug trafficking 100 grams or more of heroin (but less than one kilogram), your mandatory minimum sentence is five years. However, if death or serious injury results from your actions, the mandatory minimum sentence is increased to 20 years.

The Safety Valve Provision is outlined in 18 U.S. Code § 3553 (f) and was passed by Congress as part of the Sentencing Reform Act in 1984. This was designed to ensure that disproportionate sentences were not given to nonviolent, “low level” offenders with little to no criminal history. The Safety Valve is typically applied to drug crimes with a mandatory minimum, allowing a judge to reduce the sentence less than what is required in the U.S. Code.

In addition to the lighter sentence, the Safety Valve offers a two-point reduction in the total offense. Every federal crime has an “offense level” rated between one and 43, with the higher numbers representing more serious crimes or crimes with compounded factors. For example, if an offender obstructs justice during the investigation, the offense level is increased by two levels, whereas if they clearly accept responsibility for their actions, their offense level may be lowered by two levels.

For those who are eligible for the Safety Valve Provision, the reduction of two offense points can significantly reduce their sentence by months or even years.

Limited Criminal History:The U.S. Code’s sentencing guidelines have specific points assigned to prior convictions. More serious crimes have higher numbers of criminal history points. The defendant can’t have more than four criminal history points not including any 1-point offenses.

No Violence, Credible Threat, or Dangerous Weapon:This was a nonviolent crime, the defendant did not make any credible threats of violence, and they didn’t have a firearm or dangerous weapon. Also, the Court will look at whether the defendant aided, counseled, procured, or caused any co-conspirators to commit violence or possess a firearm during the crime.

Did Not Organize or Lead Others:The defendant can not be the leader, organizer, or manager of a group committing the offense. For example, if the defendant exhibited any type of control over another individual in relation to the offense, they are disqualified from receiving the Safety Valve Provision.

Cooperation with Investigators:The Court will show leniency if the defendant has provided federal investigators with comprehensive information and any evidence regarding their conduct in the case, including anything not included in the allegations.

The only applicable charges are those outlined in 18 U.S.C. 3553(f). This includes, but is not limited to: Distribution, manufacturing, or dispensing of a controlled or counterfeit substance (21 U.S. Code § 841)

If you are facing federal criminal charges, you need an experienced attorney on your side to help you secure the best practical outcome in your case. We represent clients in the Eastern District of North Carolina, including Raleigh, Fayetteville, Greenville, and Goldsboro. Reach out to Sandman, Finn & Fitzhugh today at (919) 887-8040 to schedule a free initial consultation, or fill out the form below to get started.

When someone is convicted of a specific crime or accepts a plea bargain, they automatically receive at least a pre-established minimum sentence for that crime. It may come as a surprise that it’s actually Congress – not a judge – that sets those minimums. The judge can choose to increase the sentence from the minimum required, but cannot lessen the sentence – except for the Safety Valve Provision if it’s applicable.

In 1984 Congress passed the Safety Valve Provision as part of the Sentencing Reform Act. The purpose of the Safety Valve Provision was to ensure that individuals convicted of non-violent, low-level offenses who didn’t have a criminal history did not receive unreasonably disproportionate sentences. It generally applies to drug crimes with a mandatory minimum.

Each federal crime carries its own offense level, which falls between one and 43; the higher the number, the more serious the crime or aggravating factors. The Safety Valve Provision provides a two-point reduction in the offense level. Alternatively, if a suspect is found to obstruct justice during the investigation, the offense level is then increased by two points. If that same person is shown to be remorseful for their wrongdoing, their offense level may be decreased by two points. While two points may not seem like much, those two points can help to drastically reduce the length of one’s sentence.

The Safety Valve Provision does not apply to everyone; the individual must be eligible for it. To be eligible, the individual must meet the following requirements:

If the offender has a criminal history, the sentencing guidelines will assign specific appoints to those prior convictions. They must not have more than four points for their criminal history (not including any one-point offenses).

The crime that the individual committed must have been a non-violent crime and they must not have made any credible threats of violence. Additionally, they must not have possessed a firearm or dangerous weapon at the time that the crime was committed. The Court will also examine whether the offender convinced anyone else to commit violence or possess a firearm during the crime.

The offender must have cooperated with investigators and provided them with comprehensive information and evidence pertinent to their conduct in the case.

Not every crime is eligible for the Safety Valve Provision either. In fact, only those crimes that the statute lists are eligible. These charges include:

If you have been charged with a crime, you may have options. You have the right to defend yourself and prove your innocence. Your best bet of doing so successfully is with the help of a knowledgeable and experienced North Carolina criminal defense attorney who understands what you are up against and will fight on your behalf.

At Hancock Law Firm, PLLC, we fully understand what is at stake and will do everything that we can to help you to fight this order. To learn more or to schedule a free consultation, contact us today!

Commission, 2012 Federal Sentencing Statistics. http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/State_District_Circuit/2012/index.cfm

Defenses to manufacturing and distribution charges typically include claiming another use for the ingredients and claiming personal use for any drugs made.

Drug manufacturing charges (and sentences), or intent to manufacture controlled substances or street drugs, are serious crimes. A defendant charged with manufacturing should understand the nature of the charges, the potential penalties and sentences, and the possible defenses for a manufacturing charge.

In this article, we’ll look into the drug laws in the United States and a few specific states; the meaning of “manufacturing”, “delivery”, and “distribution”; and examine defenses and potentially how to beat a manufacturing charge.

If you are personally dealing with the legal defense for drug manufacturing or a related charge, you should consult with an experienced criminal defense attorney. As you’ll see, drug manufacturing charges can be complicated and have serious penalties; you can search for a criminal defense attorney near you by entering your ZIP code above.

What constitutes a manufacturing charge depends on how a state defines the charge. For instance, Tennessee breaks manufacturing and distribution into two separate charges. Manufacturing a controlled substance in California is not only separate from distribution charges but also is subject to several potential aggravating factors and associated charges.

Manufacturing charges cover the actual manufacture and production of a controlled substance, while distribution charges are more concerned with the movement or delivery of a controlled substance. Texas, however, lumps the two charges together under the title of manufacture or delivery of a controlled substance. Like in California, manufacturing and delivery charges are subject to many aggravating factors.

Because of the serious nature of the crimes, it is always best for a defendant to consult with a drug lawyer as soon as possible when charged with drug manufacturing-related charges.

Most manufacturing charges cover the actual production of a controlled substance. Using easily available online recipes and techniques, some defendants have tried to brew their own homemade batches of methamphetamine, a common street drug. Unlike beer or wine, which can be manufactured at home for personal use, the manufacture of methamphetamine for personal use is a felony.

Even though the actual manufacture of methamphetamine, or meth, is the most common reason for a manufacturing charge, some states do not limit a manufacturing charge to a completed product. These states not only prohibit the manufacture of a controlled substance but also prohibit the possession of certain items and chemicals with the intent of manufacturing methamphetamine.

A defendant who possesses ingredients used to make meth can be charged and punished the same as someone who actually completed the production process. Ingredients that could result in a charge include: anhydrous ammonia, pseudoephedrine, lithium batteries, and foil, all of which are fairly common household items but found together for a prohibited intent can lead to a felony charge.

Manufacture of methamphetamines often is the same charge as other drug manufacturing, but may be considered an enhancing or aggravating factor that results in a greater penalty. For example, due to the inherent danger in manufacturing methamphetamines, to the inherent danger in manufacturing methamphetamines.”>California law considers manufacturing these drugs in a dwelling where someone under 16 years old lives an aggravating factor.

Manufacturing charges carry a higher range of punishments than simple drug possession peanlities and charges, but each state sets its own punishment guidelines.

In Tennessee, punishment for manufacturing one gram or more of methamphetamine ranges from eight to 30 years in prison, with an optional fine of up to $25,000.00.

In Texas, the punishment increases with the amount produced. For example, the manufacture of between one and four grams of meth could lead to a sentence of two to 20 years in state prison, while the manufacture of 400 plus grams of meth could result in a minimum sentence of 15 years up to 99 years, or life, in prison.

In California, the aforementioned aggravating factors can enhance a sentence, but the penalty for manufacturing can result in between two and seven years in state prison.

Each state has established basic sentencing guidelines, which can be enhanced by several other factors. One is where the offense took place. If a defendant manufactures meth or other controlled substance near a school or a child, the sentence could be enhanced.

Some states will deny early parole for defendants who manufacture meth and possess a firearm. In Texas, for example, a defendant convicted of manufacturing a controlled substance might only be required to complete a quarter of the sentence, but a defendant who possessed a deadly weapon, like a firearm, would have to complete half of the sentences before becoming eligible for parole, effectively doubling the sentence.

Other than the usual defenses for any possession charge, a defendant charged with manufacturing a controlled substance who is caught with a completed product may not have much of a defense. In such a situation, the best strategy may be to look for ways to mitigate the punishment. For example, a defendant who can show that the production was only for personal drug use could face a lower sentence. Other factors, like the absence of a child, also can lead to a lower sentence.

A defendant who is charged only with possessing certain chemicals needed to produce a controlled substance usually looks for ways to negate the intent to produce. For example, a defendant might admit possessing ingredients, like the anhydrous ammonia, but demonstrate a legitimate purpose for doing so. If a defendant can show the substance was not possessed to make meth, then a judge or jury could find the defendant not guilty of a manufacturing charge.

Many defendants have argued that the economy or the job market created the need to manufacture and distribute controlled substances but failed to recognize that manufacturing a controlled substance can have a devastating effect on personal finances.

Beyond paying a fine, imprisonment without income, and paying for a defense attorney, some states authorize the seizure of property or proceeds of drug-related crimes — separate and apart from the criminal charges. This means that law enforcement can seize the car used to carry ingredients and, potentially, the house where the controlled substance was manufactured. Even though manufacturing methamphetamine may look like a lucrative opportunity, a drug manufacturing conviction can be far more costly than conviction on other criminal charges.

Drug manufacturing charges can be complicated. Though many answers are included above, we’re going to try and answer a few more below. To learn more you can look at this list of drug charges and sentences, though keep in mind that charges and sentences vary by state and can change.

A “controlled substance” is any illegal drug. Depending on the state, this can include growing and packaging marijuana or making or attempting to make prescription drugs. Any making or attempt to make these drugs or, more commonly, methamphetamine, LSD, MDMA, or other such drugs, is illegal and can result in being charged with some variation of manufacturing a controlled substance.

Mandatory minimum sentencing refers to a federal law that requires federal judges to issue specific minimum sentences in drug cases. Some states have created similar laws, but for federal drug offenses, there is no choice for the judge to issue a lower sentence.

In response to criticism of these harsh penalties, congress created a safety valve that allowed non-violent first-time offenders to be excluded from the mandatory minimums.

Although nonviolent first-time drug dealers may not face the mandatory minimums discussed above, anyone convicted of dealing (distribution, delivery, etc…) will almost certainly face a prison sentence of at least one year.

The sentence for manufacturing is also likely to result in prison if convicted. In some state courts, however, an alternative sentence may be possible depending on the circumstances.

With an experienced defense attorney, it’s possible to overcome a charge for manufacturing and delivery. To defeat the manufacturing element, a common strategy is to argue that the items in your possession were not intended to make a controlled substance. If you can show you had another intent with the items, you cannot be convicted of manufacturing a controlled substance.

If you already have manufactured the drug, however, it may not be possible to overcome the charge of manufacturing. You could still overcome the delivery (or distribution) charge by proving that you were only planning on using the drugs yourself.

Drug charges are serious. Even simple possession can result in sentences of five or ten years in federal prison. Manufacturing charges are often more severe, and many aggravating factors can make the penalties even worse.

You can be charged with drug manufacturing just by owning the things necessary to make a drug, and some states will charge you with distribution or intent to distribute just based on the quantity of drugs in your possession.

Did we answer all your questions about drug manufacturing and distribution? Is there something else you need to learn about the charges and potential sentences?

If you have specific questions or need legal help, you should consult a criminal defense attorney experienced in drug manufacturing defense. You can start searching by entering your ZIP code in the search tool below and find an attorney who can help you with these serious matters of criminal law.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina.

In early August, US Attorney General Eric Holder made headlines by announcing that the Justice Department will no longer pursue mandatory minimum sentences for some low-level, nonviolent drug offenders. Mandatory minimums are policies that require everyone convicted of certain crimes to be sentenced at least a minimum number of years in prison, regardless of the circumstances surrounding the crime.

Mandatory minimums have been shown to be ineffective at preventing crime. Meanwhile, they distort the criminal justice system by creating situations where punishments do not fit the crime, and they threaten the right of access to a fair trial when prosecutors use the threat of harsh sentences to pressure defendants to plead guilty to a lesser charge, even if they are innocent.

Leaders on both the right and left are in agreement that mandatory minimums are bad policy and have joined the push for reform. Republican Senator Rand Paul and Democratic Senator Patrick Leahy have introduced the “Justice Safety Valve Act” to restore judges’ discretion over sentencing in federal cases. The American Legislative Exchange Council, which is backed by ideologically conservative and corporate interests, recently reversed its position on mandatory minimums to endorse a state version of the Justice Safety Valve Act. The Oklahoman editorial board called for Oklahoma to lawmakers to join this movement for reform.

Another recent endorsement for reform has come from the American Corrections Association (ACA), the largest group representing correctional officers in the country. ACA President Chris Epps, who is also the Mississippi Commissioner of Corrections, released a statement that, “ACA’s members know from long and first-hand experience that crowding within correctional systems increases violence, threatens overall security within a facility, and hampers rehabilitation efforts. Prisons are full of nonviolent offenders serving lengthy and mandatory minimum sentences. Our members work hard every day to keep staff, inmates, and the public safe, but the current system is unsustainable.”

This nationwide incarceration crisis is matched and exceeded in Oklahoma, and mandatory minimums have played a major role in our state’s very high incarceration rates. By reviewing Oklahoma