first step act and safety valve manufacturer

In December 2018, President Trump signed into law the First Step Act, which mostly involves prison reform, but also includes some sentencing reform provisions.

The key provision of the First Step Act that relates to sentencing reform concerns the “safety valve” provision of the federal drug trafficking laws.  The safety valve allows a court to sentence a person below the mandatory minimum sentence for the crime, and to reduce the person’s offense level under the Federal Sentencing Guidelines by two points.

The First Step Act increases the availability of the safety valve by making it easier to meet the first requirement—little prior criminal history.  Before the First Step Act, a person could have no more than one criminal history point. This generally means no more than one prior conviction in the last ten years for which the person received either probation or less than 60 days of prison time.

Section 402 of the First Step Act changes this.  Now, a person is eligible for the safety valve if, in addition to meeting requirements 2-5 above, the defendant does not have:

John Helms has been a trial lawyer for more than 20 years and is a former federal prosecutor who never lost a trial or appeal. He is the founder of the Law Office of John M. Helms in Dallas, Texas, where he has handled both civil and criminal cases and is skilled at helping clients facing overlapping civil and criminal issues.

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In addition to making retroactive the Fair Sentencing Act’s correction of the disparity between sentences for crack and powder cocaine related offenses, a second hallmark of the FIRST STEP Act is the broadening of the safety valve provision, which dispenses with mandatory minium sentences under certain circumstances. While the Act does not provide for retroactivity of this provision, the United States Sentencing Commission estimates that this change will impact more than 2,000 defendants per year in the future. See Sentence and Prison Impact Estimate Summary (last viewed January 27, 2019).

The safety valve, codified at 18 U.S.C. § 3553(f) and also found in section 5C1.2 of the United States Sentencing Guidelines, permits judges to dispense with statutorily imposed mandatory minimum sentences with regard to violations of 21 U.S.C. §§ 841, 844, 846, 960 and 963, which involve the possession, manufacture, distribution, export and importation of controlled substances. Previously, in order to sentence a defendant without regard to the mandatory minimum sentences for these offenses, the court was required to find the following: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence, threats, or possess a dangerous weapon or firearm 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 in the offense, and was not engaged in a continuing criminal enterprise; and 5) the defendant truthfully provided information to the government concerning the offense. See 18 U.S.C. § 3553(f)(1)-(5).

The FIRST STEP Act amends the aforementioned conditions by permitting judges to utilize the safety valve provision even where the defendant has up to four criminal history points, excluding all points for one-point offenses, which are generally minor crimes. However, defendants with prior three-point felony convictions and two-point violent felony convictions are still not permitted to utilize the safety valve. Additionally, the FIRST STEP Act adds 46 U.S.C. §§ 70503 and 70506, which involve the possession, distribution and manufacturing of controlled substances in international waters, to the list of offenses which are covered by the safety valve.

Hiring a top New York criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.

Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.

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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—

(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.

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:

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.

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.

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.

The “safety valve” sentencing provision in  18 U.S.C. § 3553(f) allows a district court to sentence a defendant below the mandatory-minimum sentence for certain drug offenses if the defendant can show he or she doesn’t have all three conviction categories, together, that are listed in the statute, the Ninth Circuit held Friday in United States v. Lopez,  No. 19-50305 (9th Cir. May 21, 2021).

The term “and” in the statute, 18 U.S.C. § 3553(f)(1), means “and,” the court held. "Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that "and" means "and".” “A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief,” referring to the three categories of prior convictions.

The result allows Eric Lopez, who was convicted of drug transporting, to serve four years’ imprisonment rather than five. Lopez, age 35, had a single prior conviction—for vandalism with spray paint at age 22.

Up until 2018, anyone with more than one “criminal history point” under the Sentencing Guidelines was safety valve ineligble. Specifically, anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded.

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Proposed in March 2013, the Justice Safety Valve Act would allow federal judges to hand down sentences below current mandatory minimums if: The mandatory minimum sentence would not accomplish the goal that a sentence be sufficient, but not greater than necessary

The factors the judged considered in arriving at the lower sentence are put in writing and must be based on the language is based on the language of 18 U.S.C. § 3553(a)

This proposed updated safety valve would apply to any federal conviction that has been prescribed a mandatory minimum sentence. As written, it would not apply retroactively; inmates already serving a mandatory minimum sentence would not be allowed to request a lesser sentence or re-sentencing based on the Act. It would only apply to federal sentencing; North Carolina would have to enact its own legislation to change state mandatory minimum sentencing.

In 2012, there were 219,000 inmates being held in federal institutions run by the Federal Bureau of Prisons (BOP). In 1980, there were only 25,000. Approximately one-quarter of the Justice Department’s budget is spent on corrections. Over 10,000 people received federal mandatory minimum sentences in 2010.

In addition to these statistics, the application of mandatory minimum sentences leads to absurdly long sentences being imposed, at great taxpayer expense, on non-violent individuals. The organization Families Against Mandatory Minimums (FAMM) details how mandatory minimums have resulted in substantial – and unfair – punishments for low-level crimes, including these two examples: Weldon Angelos: Mr. Angelos was sentenced to 55 years in prison after making several small drug sales to a government informant. Several weapons were found in his home and the informant reported seeing a weapon in Mr. Angelos’ possession during at least two buys. He was charged with several counts of possessing a gun during a drug trafficking offense, leading to the substantial sentence, despite having no major criminal record, dealing only in small amounts of weed, and never using a weapon during the course of a drug transaction.

John Hise: Mr. Hise was sentenced to 10 years on a drug conspiracy charge. He had sold red phosphorous to a friend who was involved in meth manufacturing. Mr. Hise stopped aiding his friend, but not before authorities had caught on. He was convicted and sentenced to 10 years despite police finding no evidence of red phosphorous in his home during a search. Mr. Hise was ineligible for the current safety valve law because of a possession and DUI offense already on his record.

The use of mandatory minimums that allow little discretion for judges to depart to a lower sentence have contributed to the growing prison population and expense of housing those arbitrarily required to spend years in prison. There is certainly room for improvement. Expanding this safety valve to all mandatory minimum sentences would reduce the long-term prison population while still ensuring that the goals of sentencing are met.

The first question a federal judge must consider in deciding whether or not he or she will sentence a person convicted of a federal offense below the mandatory minimum under the proposed Act is whether the mandatory minimum sentence would over punish that person. In other words, would the mandatory minimum put the person in prison for longer than is necessary to meet the goals of sentencing?

The proposed Act would ensure that the goals of sentencing return to the forefront of determining an appropriate prison term rather than substituting the judgment of Congress for that of the presiding judge during the sentencing phase of the federal criminal process.

There are currently just under 200 mandatory minimum sentences for federal crimes on the books, but only federal drug offenses are subject to an existing sentencing safety valve. The actual text of the existing sentencing safety valve can be found at 18 U.S.C. § 3553(f).

In order for a federal judge to apply the existing safety valve to sentencing for a federal drug crime, he or she must make the following findings: No one was injured during the commission of the drug offense

These criteria are strict and minimize the number of people who could be saved from lengthy, arbitrary prison sentences. The legal possession of a gun during the commission of a drug crime has been used to deny the application of the safety valve as has prior criminal history that included only misdemeanor or petty offenses. In effect, the current safety valve legislation allows only about one-quarter of those sentenced on federal drug offenses to take advantage of the deviation from mandatory minimums each year.

Another exception to mandatory minimum sentencing, substantial assistance, is often unavailable to low-level drug offenders. Often those who are tasked with transporting or selling drugs, or who are considered mules, have little if any information about the actual drug ring itself. These people are then not eligible for a reduced sentence below a mandatory minimum because they have no information to provide prosecutors; they are incapable of providing substantial assistance.

Identical versions of the Act were introduced in the House and Senate, H.R. 1695 and S. 619. Both have been referred to the committee for review. The proposed Safety Valve Act would expand the application of the safety valve beyond drug crimes and would allow judges to ensure that sentencing goals are met while not over-punishing individuals and overcrowding the nation’s prison system.

However, the Safety Valve Act is no substitute for an experienced federal defense lawyer on the side of anyone facing federal charges; it is not a get out of jail card. If a judge deviates below mandatory minimums in sentencing, he or she would still be required to apply the federal sentencing guidelines in determining an appropriate sentence.

An experienced federal criminal defense attorney can answer any questions you have about mandatory minimum sentencing and what to expect during a federal criminal prosecution.

This informational article about the proposed Justice Safety Valve Act is provided by the attorneys of Roberts Law Group, PLLC, a criminal defense law firm dedicated to the rights of those accused of a crime throughout North Carolina. To learn more about the firm, please like us on Facebook; follow us on Twitter or Google+ to get the latest updates on safety and criminal defense matters in North Carolina. For a free consultation with a Charlotte defense lawyer from Roberts Law Group, please call contact our law firm online.

In this case, our client was charged with First Degree Murder in connection with a “drive-by” shooting that occurred in Charlotte, NC. The State’s evidence included GPS ankle monitoring data linking our client was at the scene of the crime and evidence that our client confessed to an inmate while in jail. Nonetheless, we convinced a jury to unanimously find our client Not Guilty. He was released from jail the same day.

Our client was charged with First Degree for the shooting death related to alleged breaking and entering. The State’s evidence included a co-defendant alleging that our client was the shooter. After conducting a thorough investigation with the use of a private investigator, we persuaded the State to dismiss entirely the case against our client.

After conducting an investigation and communicating with the prosecutor about the facts and circumstances indicating that our client acted in self-defense, the case was dismissed and deemed a justifiable homicide.

Our client was charged with the First Degree Murder of a young lady by drug overdose. After investigating the decedent’s background and hiring a preeminent expert toxicologist to fight the State’s theory of death, we were able to negotiate this case down from Life in prison to 5 years in prison, with credit for time served.

Our client was charged with First Degree Murder related to a “drug deal gone bad.” After engaging the services of a private investigator and noting issues with the State’s case, we were able to negotiate a plea for our client that avoided a Life sentence and required him to serve only 12 years.