safety valve 2-point reduction in stock

A “safety valve” is an exception to mandatory minimum sentencing laws. A safety valve allows a judge to sentence a person below the mandatory minimum term if certain conditions are met.  Safety valves can be broad or narrow, applying to many or few crimes (e.g., drug crimes only) or types of offenders (e.g., nonviolent offenders). They do not repeal or eliminate mandatory minimum sentences. However, safety valves save taxpayers money because they allow courts to give shorter, more appropriate prison sentences to offenders who pose less of a public safety threat. This saves our scarce taxpayer dollars and prison beds for those who are most deserving of the mandatory minimum term and present the biggest danger to society.

The Problem:Under current federal law, there is only one safety valve, and it applies only to first-time, nonviolent drug offenders whose cases did not involve guns. FAMM was instrumental in the passage of this safety valve, in 1994. Since then, more than 95,000 nonviolent drug offenders have received fairer sentences because of it, saving taxpayers billions. But it is a very narrow exception: in FY 2015, only 13 percent of all drug offenders qualified for the exception.

Mere presence of even a lawfully purchased and registered gun in a person’s home or car is enough to disqualify a nonviolent drug offender from the safety valve,

Even very minor prior infractions (e.g., careless driving) that resulted in no prison time can disqualify an otherwise worthy low-level drug offender from the safety valve, and

The Solution:Create a broader safety valve that applies to all mandatory minimum sentences, and expand the existing drug safety valve to cover more low-level offenders.

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.

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:

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.

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.

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).

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.

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).

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.

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.

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.

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.

8th Circuit affirms denial of safety valve where defen­dant’s debrief was full of inconsistencies. (246) Prior to pleading guilty to drug trafficking, defendant gave an interview to an investigator. His statements had multiple inconsistencies, including his source for the drugs, so the government declined to move for safety valve relief from his ten-year mandatory minimum sentence, under 18 U.S.C. § 3553(f) and guideline § 5C1.2. The Eighth Cir­cuit affirmed, ruling that the district court properly relied on the investigator’s testimony in denying a safety valve reduction. U.S. v. Trujillo-Linares, __ F.4th __ (8th Cir. Dec. 28, 2021) No. 21-1301.

1st Circuit denies safety valve credit for lack of truth­fulness. (246) Defendant pleaded guilty to drug conspir­acy with a five-year mandatory minimum. The district court found that she was not eligible for the safety valve in 18 U.S.C. § 3553(f)(5) because she did not truthfully provide all information about the offense to which she pleaded guilty. The First Circuit affirmed, rejecting de­fendant’s attempt to characterize her misstatements as “unimportant blunders.” She also failed to explain the information on her cell phone. U.S. v. Martinez, __ F.4th __ (1st Cir. Aug. 13, 2021) No. 19-1667.

11th Circuit finds defendant’s possession of firearm barred safety valve relief. (246) At sentencing for drug trafficking, the district court denied a two-level “safety valve” reduction under § 5C1.2 because defendant pos­sessed a dangerous weapon during the drug trafficking offense. The Eleventh Circuit held that defendant failed to carry his burden to show that it was “clearly improb­able” that the firearm was connected to the drug offense. U.S. v. Carrasquillo, __ F.3d __ (11th Cir. July 14, 2021) No. 19-14143.

8th Circuit affirms denial of “safety valve” for failure to truthfully divulge information about offense. (246) Defendant was convicted of drug trafficking. At senten­cing, the district court denied her a two-level decrease in her offense level under § 2D1.1(b)(18), for failure to meet the requirements of the “safety valve” in § 5C1.2. The Eighth Circuit affirmed the district court’s finding that defendant had not “truthfully provided” all informa­tion about her offense. She said she was unaware what she was trafficking, but the trial evidence refuted that claim. U.S. v. Hernandez, __ F.3d __ (8th Cir. June 9, 2021) No. 20-1343.

1st Circuit says maritime drug trafficking is not sub­ject to safety valve. (246) Defendant pled guilty to drug trafficking on the high seas, in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503 & 70506. That offense carries a mandatory minimum. The First Circuit held that the MDLEA is not subject to the “safety valve” in 18 U.S.C. § 3553(f) and guidelines § 5C1.2, because the MDLEA is not a listed offense. U.S. v. De La Cruz, __ F.3d __ (1st Cir. May 26, 2021) No. 18-1710.

9th Circuit finds “and” in safety valve means “and,”  contrary to 11th Circuit. (246) A defendant is eligible for the safety valve in 18 U.S.C. § 3553(f), if he does not have “(A) more than 4 criminal his­tory points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense . . .” The government argued that the word “and” was disjunctive and therefore defen­dant’s prior 3-point vandalism conviction made him ineligible for the safety valve. Ninth Circuit held that the “and” in § 3553(f) is conjunctive, rejecting the govern­ment’s position and holding that defendant was eligible for the safety valve because he did not meet all three disqualifying criteria. In U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650, the Eleventh Circuit reached the opposite conclusion. U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305.

11th Circuit finds “and” in safety valve means “or,” contrary to 9th Circuit. (246) The safety valve in 18 U.S.C. § 3553(f) says a defendant is eligible if he does not have “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense. . . .” The district court interpreted “and” as conjunctive, and found defendant eligible for the safety valve because he did not have a prior violent offense. The government appealed, and the Eleventh Circuit held that the “and” in § 3553(f) is disjunctive and that defen­dant was not eligible for the safety valve. In U.S. v. Lopez, __ F.3d (9th Cir. May 21, 2021) No. 19-50305, the Ninth Circuit reached the opposite conclusion. U.S. v. Garcon, __ F.3d __ (11th Cir. May 18, 2021) No. 19-14650.

8th Circuit finds gun transaction barred eligibility for safety valve. (246) Defendant pleaded guilty to drug trafficking with a five-year mandatory min­imum sen­tence. He told law enforcement officers about a firearms transaction he had witnessed, and later testified for the defense at the retrial of a defendant for possession of those firearms. At sentencing, the district court found defendant was lying and therefore not eligible for the safety valve. Defendant argued that the firearms transac­tion was unrelated and should not have been considered. The Eighth Circuit agreed with the district court that the firearms transaction and the drug trafficking were part of a common scheme or plan, and thus he was not eligible for the safety valve. U.S. v. McVay, __ F.3d __ (8th Cir. May 6, 2021) No. 20-1169.

8th Circuit denies safety valve where defendant was not truthful. (246) Defendant arranged a 20-pound methamphetamine deal and pleaded guilty to conspiracy to distribute at least 50 grams of methamphetamine. After her arrest, defendant gave a proffer in which she said the methamphetamine deal was her first involvement in drug trafficking. At sentencing, the government argued that defendant was not eligible for the safety valve because she had lied during her proffer. The undercover agent testified that defendant had acted as if she were running the deal and used coded language in calls to other conspirators. The district court denied safety valve credit under 18 U.S.C. § 3553(f) and § 5C1.2(a), and the Eighth Circuit affirmed, finding it was reasonable for the district court to conclude that defendant was not being honest in her proffer. U.S. v. Rios, __ F.3d __ (8th Cir. Apr. 28, 2021) No. 20-1146.

11th Circuit says safety valve does not apply to Title 46 offenses, so no Fifth Amendment issue. (120)(246) Defendants were convicted at trial of transporting co­caine on the high seas in violation of 46 U.S.C. § 70506. Defendants argued that by forcing them to tell about their offense, the “safety valve” statute violated their Fifth Amendment privilege against self-incrimination. The Eleventh Circuit held that because Title 46 offenses are not eligible for the safety valve, it was unnecessary to ad­dress that concern. U.S. v. Cabezas-Montana, __ F.3d __ (11th Cir. Jan. 30, 2020) No. 17-14294.

11th Circuit upholds denying “safety valve” where defendant failed to disclose all drug deliveries. (246) At sentencing for possessing more than 500 grams of methamphetamine with intent to distribute, defendant sought a “safety valve” reduction under §§ 2D1.1(b)(17) and 5C1.2(a), arguing that he had answered all the government’s questions, provided information about the persons with whom he had conspired, and disclosed the identity of another person involved in the drug trafficking even though the government did not ask. The government opposed the reduction with evidence that defendant did not provide complete information about one of his cocon­spirators and failed to admit that he delivered drugs to the informant even though there was evidence of more deliveries. The district court denied the reduction, and the Eleventh Circuit affirmed. The court found that the government had adequately supported its claim that defendant had not disclosed all of the drug deliveries he made to the informant. U.S. v. Mancilla-Ibarra, __ F.3d __ (11th Cir. Jan. 15, 2020) No. 17-13663.

6th Circuit finds defendant eligible for safety valve despite codefendant’s firearm possession. (246) Defen­dant was subject to a mandatory minimum drug sentence. The district court found he did not qualify for a reduction under the “safety valve” in § 5C1.2 and 18 U.S.C. § 3553(f), because he possessed a firearm in connection with his offense and because he did not truthfully provide all information about the offense. The Sixth Circuit reversed, holding that the fact that defen­dant could fore­see a codefendant’s possession of a fire­arm did not pre­clude application of the “safety valve,” and that defen­dant’s failure to provide an explanation of a large amount of money found with the drugs in his room did not disqualify him from obtaining a sentence below the man­datory minimum. U.S. v. Barron, __ F.3d __ (6th Cir. Oct. 15, 2019) No. 18-5222.

7th Circuit says judge, not jury, finds facts relating to safety-valve eligibility. (120)(246) Defendant pleaded guilty to drug trafficking. The district court denied a safety-valve reduction from the mandatory five-year minimum sentence because defendant’s DNA was found on a firearm recovered from his residence and therefore defendant was not eligible for the safety valve. On ap­peal, defendant argued that the Jury Clause of the Sixth Amendment barred the district court from finding that he could not obtain the safety valve because he possessed the firearm in connection with the drug-trafficking offense. The Seventh Circuit held that the Sixth Amend­ment does not bar judicial fact-finding of safety-valve eligibility. U.S. v. Fincher, __ F.3d __ (7th Cir. July 9, 2019) No. 18-2520.

1st Circuit allows court to withhold safety valve from eligible defendant. (246) Defendant pleaded guilty to drug-trafficking. Although he faced a minimum manda­tory sentence of 120 months, he was eligible for the safe­ty valve in 18 U.S.C. § 3553(f). As a result, his sen­tenc­ing range was 108 to 135 months. Nevertheless, The dist­rict court declined to apply the safety valve and in­stead sentenced him to 135 months. The First Circuit held that it is not unreasonable to sentence a defendant eligible for the safety valve to a sentence above the mandatory mini­mum. U.S. v. Reyes-Gomez, __ F.3d __ (1st Cir. June 11, 2019) No. 17-1757.

7th Circuit denies safety valve where defendant was not truthful. (246) Law enforcement agents arrested de­fendant in his car with $40,000. A confidential source said that defendant was going to use the money to buy a kilogram of cocaine. Defendant pleaded guilty to drug trafficking and was subject to a mandatory minimum ten-year sentence. Defendant sought the safety valve in 18 U.S.C § 3553(f). One requirement for the safety valve is that a defendant “truthfully provide” all information about his offense. In a post-arrest interview, defendant said that the $40,000 was to buy a nice car. He denied any intent to purchase cocaine. After an evidentiary hearing, the district court found that defendant had not been truthful and denied a safety valve reduction. The Seventh Circuit held that defendant had not carried his burden of establishing eligibility for the safety valve. U.S. v. Collins, __ F.3d __ (7th Cir. May 14, 2019) No. 18-2149.

11th Circuit says “safety valve’s” exclusion of inter­national drug traffickers does not violate equal pro­tection. (120)(246) Under the “safety valve” in 18 U.S.C. § 3553(f) and § 5C1.2, a defendant convicted of a Title 21 offense can receive a sentence under the mandatory minimum. However, defendant was convicted of drug traf­ficking in international waters under the Maritime Drug Law Enforcement Act in Title 46, which is not listed in the “safety valve.” Defendant claimed that there was no rational basis to exclude Title 46 defendants from obtaining the safety valve and therefore that exclusion violated the Equal Protection Clause. The Eleventh Circuit found that Congress had legitimate reasons for excluding international drug traffickers from the safety valve and did not violate the Clause. U.S. v. Valois, __ F.3d __ (11th Cir. Feb. 12, 2019) No. 17-13535.

10th Circuit denies safety valve where firearms may have facilitated the offense. (246) When defendant was arrested for drug trafficking in a truck in a rural area, he possessed two loaded firearms which he admitted belong­ed to him. He was convicted of drug trafficking. At sen­tencing, the district court found that defendant was not eligible for the safety valve under § 5C1.2 because of the proximity of the firearms and their potential to facilitate the offense. On appeal, the Tenth Circuit affirmed, rejecting defendant’s argument that he did not possess the firearms in connection with the offense. The panel agreed that defendant’s possession of the firearms had the potential to facilitate the offense. U.S. v. Hargrove, __ F.3d __ (10th Cir. Jan. 2, 2019) No. 17-2102.

5th Circuit finds challenge to criminal history is not reviewable as plain error. (246)(870) Defendant was convicted of drug trafficking. For the first time on ap­peal, he argued that the district court’s improper calcu­lation of his criminal history made him ineligible for a “safety valve” reduction below the mandatory minimum, under 18 U.S.C. § 3553(f). The Fifth Circuit found no plain error, because defendant would not have been eligi­ble for the “safety valve” regardless, because he had a criminal history point for a conviction defendant did not chal­lenge. U.S. v. Cordell, __ F.3d __ (5th Cir. Oct. 19, 2018) No. 17-30937.

5th Circuit holds safety valve does not apply to viola­tions of 46 U.S.C. § 70503. (246) Defendant pleaded guilty to conspiracy to possess cocaine with intent to distri­bute, while aboard a vessel subject to the juris­dic­tion of the United States, in violation of 46 U.S.C. §§ 70503(a)(1), 70506(a) & (b) and 21 U.S.C. § 960. The district court denied defendant safety valve relief, finding that the safety valve provision applies only to the five offenses specified in 18 U.S.C. § 3553(f), and 46 U.S.C. § 70503 was not one of those offenses. The Fifth Circuit agreed. As a general matter this court has strictly limited the safety valve’s application to the statutes listed in § 3553(f). Although 21 U.S.C. § 960, which provides the penalties for § 70503, was enumerated in § 3553(f), § 70503 was not an “offense under” § 960; § 960 merely provided the penalties for § 70503. The court relied on U.S. v. Pertuz-Pertuz, 679 F.3d 1327 (11th Cir. 2012); U.S. v. Gamboa-Cardenas, 508 F.3d 491 (9th Cir. 2007) to hold that the safety valve does not apply to violations of § 70503. U.S. v. Anchundia-Espinoza, __ F.3d __ (5th Cir. July 27, 2018) No. 17-40584.

5th Circuit holds that defendant waived safety valve claim. (246)(855) Defendant pled guilty to drug charges. At sentencing, the court noted that without a role enhancement, defendant might be eligible for a safety valve reduction. The government explained that it could not make a safety valve request “right now” because defendant’s debrief had been cut short. The district court asked defendant if he would like more time to possibly qualify for the reduction. After conferring with counsel, defendant declined, and sought, instead, to proceed with sentencing. Defendant acknowledged that this meant that he would not qualify for either a safety-valve reduction or a §5K1.1 downward departure. The district court imposed a within-guideline sentence of 78 months. Nonetheless, defendant argued on appeal that the district court erred by not applying the safety valve reduction under §2D1.1(b)(17). The Fifth Circuit held that defendant waived his claim that court erred by not granting safety valve relief. U.S. v. Rodriguez-De la Fuente, 842 F.3d 371 (5th Cir. 2016).

8th Circuit says facts used to deny safety valve relief need not be proved to jury. (120)(246) The district court found defendant was not eligible for safety valve relief under 18 U.S.C. §3553(f) because he possessed firearms in connection with his drug offense, and there­fore the court imposed a mandatory minimum 120-month sen­tence under 21 U.S.C. §841(b)(1)(A). The Supreme Court in Alleyne v. U.S., __ U.S. __, 133 S. Ct. 2151 (2013), held that any fact that establishes or increases a mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt. The Eighth Circuit rejected defendant’s argument that Alleyne re­quires the government to prove that he possessed a firearm beyond a reasonable doubt. Facts that make a defendant ineligible for the safety valve do not create or increase a mandatory minimum—the safety valve simply allows for relieffrom a mandatory minimum in certain circumstances. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.

8th Circuit agrees that defendant possessed firearm and thus was not eligible for safety valve. (246) Defendant pled guilty to drug and firearm charges, and received a mandatory minimum 120-month sentence un­der 21 U.S.C. §841(B)(1)(A). The Eighth Circuit upheld the district court’s finding that defendant possessed a firearm in connection with the offense, and thus was not eligible for safety valve relief. Officers discovered the firearms in the house with the drugs, and defendant ad­mitted buying one firearm from a drug dealer for person­al protection. Defendant stipulated in his plea agreement that he possessed the two firearms and ammunition in the home. Also, he admitted that he purchased one of the firearms from a drug dealer for his own protection. Finally, defendant distributed drugs out of that house. U.S. v. Leanos, __ F.3d __ (8th Cir. July 11, 2016) No. 15-3248.

7th Circuit denies safety valve relief based on de­fen­dant’s statements during interview. (246) Defen­dant was convicted of drug charges and was sentenced to a mandatory minimum 120 months. During a safety valve interview, he claimed that he had never dealt drugs before, but needed money for his catering business, so he helped a confidential informant (the CI) find a supplier. After the interview, the government explained that it did not believe that a newcomer to the drug trade, without a reputation for trustworthiness, could broker a six-kilo­gram cocaine transaction. The district court refused to grant safety valve relief because it was unpersuaded that defendant spoke truthfully in his interview. The district court pointed to inconsistent and implausible statements, including that defendant did not know that he was aiding in a drug deal when he drove to the CI’s ranch; defen­dant’s use of a pseudonym when he first contacted the CI; and defendant’s assertion that he had never been a drug dealer before. The Seventh Circuit upheld the denial of safety valve relief, sharing the district court’s disbelief in defendant’s story. U.S. v. Rebolledo-Delgadillo, __ F.3d __ (7th Cir. Apr. 28, 2016) No. 15-2121.

8th Circuit says defendant did not show that she was entitled to safety valve relief. (246) Defendant argued for the first time on appeal that the district court erred in failing to provide her with safety valve relief. The Eighth Circuit found no plain error, ruling that defendant did not meet her burden of establishing that she qualified for safety valve relief. She could not establish that she ever truthfully provided the government with all information she had about the charged offense. Besides a brief inter­action with a trooper during a traffic stop when the drugs were found, defendant never provided additional infor­mation to the government. Accordingly, district court did not plainly err in failing to grant defendant safety valve relief. U.S. v. Morales, __ F.3d __ (8th Cir. Feb. 10, 2016) No. 15-1630.

3rd Circuit finds ineffective assistance for improper advice about safety valve. (245)(246)(880) Defendant pled guilty to distributing or manufacturing drugs near a school, in violation of 21 U.S.C. § 860(a). He later claimed that he pled guilty because counsel advised him that he was eligible for a reduced sentence pursuant to the “safety valve.” In a pro se habeas petition, defendant argued that his counsel’s erroneous advice about the safety valve constituted ineffective assistance. The Third Circuit agreed. The record clearly indicated that defen­dant’s counsel provided him with incorrect advice regard­ing the availability of the safety valve sentencing reduc­tion in 18 U.S.C. § 3553(f). In fact, counsel filed a motion for a reduction, but at sentencing, counsel with­drew this motion, because U.S. v. McQuilkin, 78 F.3d 105 (3d Cir.1996) held that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Counsel’s lack of familiarity with an 18-year-old precedent and his erron­eous advice, demonstrated performance below prevailing professional norms. The plea colloquy did not remedy counsel’s mistake, since the judge made several state­ments that reinforced counsel’s incorrect advice. Defen­dant also showed that but for counsel’s error, he would not have pled guilty and insisted on going to trial. U.S. v. Bui, __ F.3d __ (3d Cir. Aug. 4, 2015) No. 11-3795.

7th Circuit denies safety valve relief based on co-con­spirators’ gun possession. (246) Defendant received a §2D1.1(b)(1) enhancement based on her co-conspirators’ possession of a firearms. Possession of a firearm gener­ally disqualifies a defendant from safety-valve protection. See §5C1.2(a)(2). Defendant argued for the first time on appeal that her receipt of the firearm enhance­ment did not disqualify her from receiving safety-valve relief because she neither possessed a gun herself nor induced another to do so. Other circuits have concluded that the scope of the safety-valve’s “no firearms” condi­tion is narrower than the firearms enhancement, and does not impute responsibility for the acts of co-conspirators. Nonetheless, the Seventh Circuit held that the district court’s refusal to grant defendant safety valve relief was not plain error. Defendant raised a question of first impression in the circuit, and courts rarely find plain error on a matter of first impression. Given the lack of guiding circuit precedent, the district court could not be faulted for failing to raise and apply the safety valve sua sponte. U.S. v. Ramirez, __ F.3d __ (7th Cir. Apr. 15, 2015) No. 13-1013.

10th Circuit requires court to consider safety valve information provided for first time on remand. (246) Defendant was convicted of drug charges. He success­fully appealed, and the case was remanded for resenten­cing. At resentencing, the district court denied his request for safety valve protection, holding that 18 U.S.C. §3553(f) did not apply because defendant failed to make the disclosures to support a reduced sentence before his initial sentencing hearing. The Tenth Circuit held that when a defendant provides information to the govern­ment for the first time on remand, but before the resen­tencing hearing, the plain text of §3553(f) requires the district court to consider that information. The district court interpreted the statute’s requirement that the defen­dant provide information “not later than the time of the sentencing hearing,” to exclude disclosures made before a resentencing hearing. However, this phrase clearly and unambiguously referred to “the sentencing hearing” at issue, whether it was an initial, second, or subsequent sentencing hearing. Nothing in the text of §3553(f)(5) suggested that the phrase, “not later than the time of the sentencing hearing,” should be read to include an extra word—”not later than the time of the initial sentencing hearing.” U.S. v. Figueroa-Labrada, __ F.3d __ (10th Cir. Mar. 24, 2015) No. 13-6278.

7th Circuit denies safety valve relief where defendant did not tell all and threatened informant. (246) Defen­dant argued that his cooperation with law enforcement after his arrest qualified him for “safety valve” relief from the statutory minimum. See 18 U.S.C. §3553(f); U.S.S.G. §5C1.2. A DEA agent testified that the infor­mation defendant provided after his arrest was helpful, and defendant maintained that he had no additional information about the offense. However, the district court found that defendant’s cooperation was not a full and truthful proffer. The Seventh Circuit upheld the denial of safety valve credit, finding the district court gave a nuanced explanation of why it found that defendant not tell all information he knew. Moreover, defendant did not assist the investigation during the two years that passed between his initial post-arrest statements and his sentenc­ing, which undermined his assertion of full, good faith cooperation. There was also evidence that defendant threatened death to the informant and his family, which disqualified him from safety-valve relief. U.S. v. Ortiz, __ F.3d __ (7th Cir. Jan. 12, 2015) No. 13-3748.

1st Circuit says safety valve requirements are man­datory despite Booker. (246) Defendant argued that the district court erred in concluding that it had no authority to sentence him below the mandatory minimum sentence because he did not satisfy all of the safety valve factors in 18 U.S.C. § 3553(f). He argued that because the safety-valve requirements reference the Guidelines and Booker made the Guidelines advisory, then the safety valve requirements were also advisory. The First Circuit noted that this argument has been rejected by all the courts of appeals that have considered it. U.S. v. Zayas, 568 F.3d 43 (1st Cir. 2009).

1st Circuit says prior drug trafficking was relevant conduct or “safety valve” was improper. (246) Defendant pled guilty to conspiring to transport cocaine in two separate criminal cases. One case involved 20 kilos of sham cocaine that defendant received from a cooperating agent. The other case arose from 30 kilos of cocaine that defendant and his crew placed on an airplane bound for New York. He pled guilty and was sentenced first for his role in the sham cocaine smuggling scheme. At the second proceeding, the court declined to consider the sham cocaine as relevant conduct in calculating the total quantity of drugs, and found that he was eligible for the “safety valve” in §5C1.2 as a first offender. The First Circuit reversed, noting that unless the prior sham cocaine offense were included as relevant conduct in the second offense, his prior conviction would count as more than one criminal history point; making him ineligible for the “safety valve.” U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).

1st Circuit holds that court did not have discretion to reduce criminal history points in order to make defendant eligible for safety value relief. (246) Defendant received a 10-year mandatory minimum sentence following his guilty plea to drug charges, in violation of 21 U.S.C. § 841(a)(1). Defendant contended that his sentence should be vacated because the district court erroneously believed it lacked discretion to qualify defendant for safety valve protection, 18 U.S.C. § 3553(f), by lowering defendant’s crimin­al history category to I. The First Circuit held that the criminal history calculation for purposes of safety valve eligibility is non-discre­tionary. The court properly found that it was unable to reduce his criminal history score to make him eligible for safety valve protection. Booker did not change this analysis. As other circuits have held, Booker did not excise and render advisory the require­ment of § 3553(f) that a defendant have zero or one criminal history points in order to qualify for safety valve relief. U.S. v. Hunt, 503 F.3d 34 (1st Cir. 2007).

1st Circuit denies safety valve based on testimony of experienced agent that drug smugglers must have been aware of drugs. (246) Defendants were crew members of a boat smuggling drugs into the U.S. The district court refused to grant them safety valve protection. The First Circuit reversed as to the first defendant, since the court failed to make even conclusory statements as to why he did not merit safety-valve relief. At the other two defendants’ joint hearing, however, the court credited the testimony of a special government agent that these defendants had not disclosed everything they knew about the drug smuggling conspiracy. It was “illogical” and “incredible” to believe that an international drug smuggler would place $7.5 million of drugs on a vessel traveling in international waters without having some type of voluntary control over the vessel’s crew. This testimony, based on the agent’s years of experience in the field of drug interdiction, provided a sound grounding for the court’s denial of the safety valve. U.S. v. Bravo, 489 F.3d 1 (1st Cir. 2007).

1st Circuit upholds finding that defendants had not truthfully provided information about offense. (246) The Coast Guard arrested defen­dants in a fishing vessel containing 5,000 pounds of marijuana. At trial, defendants testified that they had been recruited to participate in a fishing expedition and that when they learned that the boat actually contained marijuana, they were forced at gun point to serve as its crew. A jury rejected this defense and convicted defendants of possession with intent to distribute marijuana and of conspiracy to possess with intent to distribute marijuana. At sentencing, the district court credited the testimony of a federal law enforce­ment agent that defendants’ story was illogical and incredible. Based on the agent’s testimony, the court found that defendants had not truthfully provided the government with all information concern­ing the offense and denied them a safety valve reduction. The First Circuit held that the district court did not clearly err in finding that defendants had not met the safety valve require­ment that they truthfully provide all information concerning their offense. U.S. v. Bravo, 480 F.3d 88 (1st Cir. 2007).

1st Circuit holds that finding that defendant was eligible for safety valve reduction did not preclude firearm enhancement. (246) The district court applied a two-level sentencing enhancement for firearm possession under § 2D1.1(b)(1), since defendant acknow­ledg­ed that police had found a loaded handgun in his apartment, and that defendant stated that he bought the gun for personal protection. The court also applied a two-level reduction under the “safety valve” provision of U.S.S.G. § 5C1.2, despite its requirement that the defendant show that he was not in possession of a firearm. The First Circuit found nothing contradictory about applying both the firearm enhancement and the safety valve reduction, since different standards apply for each. The application of the safety valve requires the defendant to establish by a prepon­derance of the evidence that he did not possess the firearm in connection with the offense. For the firearm enhancement, the government has the initial burden of establishing that a firearm possessed by the defendant was present during the commission of the offense. After that, the burden shifts to defendant to persuade the court that a connection between the weapon and the crime is clearly improbable. Defendant’s failure to meet the higher burden of proof required for the firearm enhancement did not preclude the defen­dant from meeting the lower burden of proof in the safety valve provision. U.S. v. Anderson, 452 F.3d 87 (1st Cir. 2006).

1st Circuit holds that Booker does not give court authority to disregard criminal history to make defendant eligible for safety valve. (246) Defendant’s plea agreement provided that if defendant met “all” of the requirements of the “safety valve” of U.S.S.G. § 5C1.2, he would receive a two-level reduction under § 2D1.1(b) (6). The First Circuit agreed that defendant was not entitled to safety value relief because he did not meet all of the requirements – he had three criminal history points. The panel rejected defendant’s argument that the court had the discretion to disregard the criminal history computation called for under the guidelines. Even if this argument were not foreclosed by defen­dant’s stipulation in the plea agreement that his sentence would be determined according to the guidelines, his argument failed as a matter of law because there can be no Bookererror where a defendant is sentenced to a statutory minimum based on admitted facts. Booker does not give a court discretion to disregard an otherwise appli­cable statutory minimum. U.S. v. Narvaez-Rosario, 440 F.3d 50 (1st Cir. 2006).

1st Circuit says finding that defendant did not establish safety valve entitlement was not subject to Booker challenge. (246) The district court found that defendant was not entitled to safety valve protection under 18 U.S.C. § 3553(f) (2) and § 2D1.1(b)(7). De­fen­dant argued that the court violated the Sixth Amendment by crediting evidence that the police found 11 firearms in defendant’s apartment during their execution of a search warrant. The First Circuit held that this safety valve finding need not be decided by a jury or admitted by the defendant under Booker. The burden of proof rests with the defendant to estab­lish an entitlement to safety valve protection. The district court’s finding that defendant failed to establish that he did not possess a firearm in connection with the offense of conviction was not subject to a Bookerchallenge. U.S. v. Morrisette, 429 F.3d 318 (1st Cir. 2005).

1st Circuit holds that Booker did not entitle defendant to resentencing so that he could comply with safety valve. (246) Defendant sought resentencing on the ground that the Sixth Amendment required the facts determining compliance with the safety valve to be found by a jury rather than by a judge. Because he did not understand that require­ment when he decided not to participate in the safety valve regimen, defen­dant argued that he would have made a different decision if he had known that his entitlement to a sentence reduction would have to be found by a jury by a reasonable doubt. The First Circuit rejected this claim. A change in the law does not warrant vacating a sentence so that the defendant may reconsider his initial decision not to pursue a safety valve reduction, just as a change in the law does not warrant vacating a guilty plea so that the defendant may choose to face trial instead. Defendant was not entitled to resentencing under Booker, because he did not preserve his Booker claim and failed to demon­strate a reasonable probability of a lower sentence under an advisory guideline regime. U.S. v. De Los Santos, 420 F.3d 10 (1st Cir. 2005).

1st Circuit finds insufficient evidence of constructive possession of hidden firearm. (246) The district court found that defendants were ineligible for safety valve protection under § 5C1.2 because they each possessed a .22 caliber handgun during the course of the conspiracy. Defendants argued that proof of actual possession was required to bar application of the safety valve, and even if constructive possession was sufficient, there was inadequate evidence to establish such possession. The First Circuit held that a defendant who has constructively possessed a firearm in connection with a drug trafficking offense is ineligible for the safety valve provisions in § 5C1.2. However, there was insufficient evidence here that two of the defendants constructively possessed the gun. As to the first defendant, he did not stay in the room where the weapon was found. The fact that he was aware that his co-conspirators were interested in 9 mm pistols was not sufficient evidence that defendant knew that his co-conspirators had actually acquired a .22 caliber pistol. Although the second defendant stayed in the room where the gun was found, there was inadequate evidence to infer that he had actual knowledge of the gun. The fact that he participated in drug transactions in his room while the handgun was hidden in the closet was not enough to show knowledge of the hidden gun. U.S. v. McLean, 409 F.3d 492 (1st Cir. 2005).

1st Circuit holds that safety valve amendment could not be applied retroactively. (246) Defen­dant moved to modify his sentence, arguing that Amendment 640 to the Sentencing Guidelines, effective November 1, 2002, applied retroactively to his case and authorized the court to reduce his sentence by using the safety valve adjustment. The First Circuit held that Amendment 640 was a substantive amendment and therefore, was not to be applied retroactively. The amendment is sub­stantive – its principal effect is to create a new offense level cap for safety valve purposes. The amendment also is not listed in USSG § 1B1.10(c) as one to be given retroactive effect. U.S. v. Cabrera-Polo, 376 F.3d 29 (1st Cir. 2004).

1st Circuit holds safety valve is not barred by weapon enhancement based on co-conspirator liability. (246) Defendant’s offense level was increased under § 2D1.1(b)(1) because “a dangerous weapon … was possessed” during the course of the offense. Under U.S.S.G. § 5C1.2, a defendant is eligible for safety valve reduction if he meets certain criteria, including the requirement that he “did not use violence or credible threats of violence of possess a firearm or other dangerous weapon” in connection with the offense. Five circuits have held that application of § 5C1.2 is not precluded by a weapons possession enhancement based on co-conspirator liability. See, e.g. U.S. v. Penn-Sarabia, 297 F.3d 983 (10th Cir. 2002). The First Circuit agreed that in order for the safety valve to be precluded, a defendant must possess or induce another to possess a firearm in accordance with § 5C1.2(a) (2). Since the basis for the court’s denial of safety valve protection was unclear, the case was remanded for resentencing. U.S. v. Figueroa-Encarnacion, 343 F.3d 23 (1st Cir. 2003).

1st Circuit upholds finding that defendants did not meet information requirement of safety valve. (246) Defendants contended that they met the full disclosure requirement of the safety valve provision, asserting that they had truthfully and completely answered all the questions that the government had asked, and therefore, that the burden had shifted to the government to show that they were ineligible for the safety valve. They further contended that if the government believed that either of them was withholding information, it had a duty to come forward with the basis for that belief so that the affected defendant would have a fair chance to explain away the alleged omission. The First Circuit upheld the court’s finding that defendants did not satisfy the disclosure requirements of the safety valve provision. First, a defendant bears the burden of showing that he made appropriate and timely disclosures to the government. Although defendants insisted they filled any gaps in their original disclosures by their testimony during sentencing, such disclosures must be made by the time the sentencing hearing starts. 18 U.S.C. § 3553(f)(5). Moreover, the provision requires a defendant to be forthcoming. He cannot simply respond to questions while at the same time keeping secret pertinent information that falls beyond the scope of direct interrogation.. Finally, the panel rejected the suggestion that the government acted in bad faith because it would not tell defendants, early on, why it believed that they were not telling the whole truth. “If the government reasonably suspects that the defendant is being devious, it is not obliged to tip its hand as to what other information it may have so that the defendant may shape his disclosures to cover his tracks, minimize his involvement, or protect his confederates.” U.S. v. Matos, 328 F.3d 34 (1st Cir. 2003).

1st Circuit says court was not required to examine applicability of safety-valve before accepting plea. (246) Defendant argued that, pursuant to Rule 11(f), the district court should have inquired into the applicability of the safety-valve provision before accepting his guilty plea. The First Circuit disagreed, and found that the district court’s dialogue satisfied Rule 11(f). Whether or not defendant used or threatened to use a firearm (the conduct which made him ineligible for the safety valve), was not a necessary part of the substantive offense. Although defendant contended that he did not understand at the time of his plea that he could be sentenced beyond the 87-108 month term mentioned in the plea agreement, the agreement stated at the outset that the statutory penalty for Count I was not less than ten years and not more than life, and the court expressly asked defendant whether he understood this penalty. Further, after addressing the sentencing range set forth in the plea agreement, the court inquired if defendant understood that “it’s up to the Judge to decide if that is correct, and it can go up or down, including the ten-year minimum and life sentence.” Again, defendant said he understood. The court did not provide inaccurate sentencing information. Any confusion of defendant about the potential length of his sentence was not the result of having been incorrectly advised by the court during the Rule 11 plea colloquy. U.S. v. Ramirez-Benitez, 292 F.3d 22 (1st Cir. 2002).

1st Circuit says government not required to present rebuttal evidence to undermine defendant’s proffer. (246) The district court refused to grant defendant safety valve protection, finding that he did not “truthfully provide to the Government all information and evidence” he had concerning the offense. Relying on U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996), defendant argued that to undermine a defendant’s safety valve proffer, the government must affirmatively produce rebuttal evidence, and that here, the government did not do so. The First Circuit held that Miranda-Santiago did not establish this principle. This point was clarified in U.S. v. White, 119 F.3d 70 (1st Cir. 1997), which held that a sentencing court may reject a safety valve proffer based on its reasoned assessment of the defendant’s credibility in light of the facts – and that the court may do so without the benefit of independent rebuttal evidence. Miranda-Santiago stands only for the proposition that when the record, taken as a whole, will not support a finding that the defendant has failed to provide a truthful and complete proffer, the government’s lack of confidence in the proffer is insufficient, in and of itself, to justify the denial of safety valve protection. Here, the government did not simply assert skepticism of defendant’s proffer; it identified specific instances in which the proffer fell short, explained why it did not credit the veracity of defendant’s statement, and pointed out internal inconsistencies. U.S. v. Marquez, 280 F.3d 19 (1st Cir. 2002).

1st Circuit rules defendant had adequate knowledge of safety valve requirements. (246) Defendant’s bind­ing Rule 11(e)(1)(C) plea agreement provided for a 87-month sentence, 33 months below his mandatory minimum sentence. The agreement was conditioned on defendant’s meeting the safety valve criteria in USSG § 5C1.2. In December 1997, the court accepted defendant’s guilty plea. In February 1999, after defendant failed to comply with the safety valve criteria, the court issued an order rejecting the 87-month sentence, stating that defendant was allowed to withdraw his plea. In April 1999, the government filed a motion to sentence defendant in accordance with his plea agreement, even though he had not complied with the safety valve. Four days later, the court “accepted” defendant’s guilty plea (despite having allowed him to withdraw his plea) and indicated its intent to sentence him in accordance with the plea agreement. In August 1999, defendant first notified the court of his desire to withdraw his guilty plea, claiming he did not understand the requirements of the safety valve provision. The district court denied his motion, and sentenced him to 87 months. The First Circuit held that defendant was not entitled to withdraw his plea. The sequence of events made it implausible that defendant did not understand his obligations under the safety valve. At the December 1997 hearing, the court specifically pointed out the provision, and defendant agreed that he understood it. When the court rejected the plea agreement in February 1999 because of noncompliance with the safety valve, defendant did not claim that he did not understand the provision. The panel was troubled by the court’s decision to “accept” a plea that it had previously treated as withdrawn. However, defendant never argued that this procedure was inappropriate. Even if there were plain error, defendant’s substantial rights were not affected. U.S. v. Santiago, 229 F.3d 313 (1st Cir. 2000).

1st Circuit agrees that defendant did not meet information requirement of safety valve. (246) The district court refused to grant defendant safety valve relief because it found that he did not meet the disclosure requirements in 18 U.S.C. § 3553(f)(5) and USSG § 5C1.2(5). At sentenc­ing, the prosecutor advised the court that there had been an aborted proffer session, at which defendant gave an account that the govern­ment regarded as “absurd.” Defendant’s attorney said that the proffer session broke down because defendant “said that he was not going to talk about anybody’s activity other than his own and that he did not know the people that were involved because they were much younger than he.” Under either version, defendant never truthfully told the government all he knew about the conspiracy. The district court correctly rejected defendant’s claim that he met the safety valve criteria because the government never requested him to come in and give a truthful proffer. Defendant was given a proffer session and he failed to divulge all the information he possessed concerning the crime. Because defendant did not prove his entitlement to the safety valve reduction, the First Circuit ruled that he was properly sentenced to the statutory manda­tory minimum sentence. U.S. v. Richardson, 225 F.3d 46 (1st Cir. 2000).

1st Circuit holds that plea agreement did not bar safety valve relief. (246) The government conceded that defendant met the criteria for safety valve protection under USSG § 5C1.2 and 18 U.S.C. § 3553(f). However, it argued, and the district court agreed, that defendant’s plea agreement barred defendant from receiving safety valve protection. The agreement provided that, aside from those adjustments that were expressly delineated in the agreement, “no further adjustments to the defendant’s total offense level shall be made.” The First Circuit held that the plea agreement did not bar the court from granting safety valve relief. First, the term “adjustments,” when used in the federal sentencing context, does not encompass the safety valve provision. Chapter Three of the Guide­lines contains the “adjustments” that may be made in determining a defendant’s adjusted offense level. The safety valve provision is contained in  Chapter Five; it is not intended to affect the calculation of the defendant’s offense level per se, but rather, to operate as a limitation on the applicability of mandatory minimum sentences. Moreover, the safety valve, when it applies, is mandatory. Thus, in a non-binding plea agreement, the government cannot contract around the safety valve; the most it can do is attempt to persuade the sentencing court that the provision does not apply. The court erred as a matter of law in not making an independent determination of whether the safety valve applied. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).

1st Circuit rejects safety valve for defendant who denied knowledge of heroin and currency. (246) Defendant arrived at a U.S. airport on a flight from Costa Rica with heroin concealed in the inner lining of his two suitcases. Customs inspectors also found 564 counterfeit 100 dollar bills bundled in defendant’s jeans in the two suitcases. Defendant denied knowledge of the heroin and counterfeit bills. The district court found defendant did not provide “all information and evidence [he had] concerning the offense,” and thus did not qualify for safety valve protection under 18 U.S.C. § 3553(f)(5). The First Circuit found no clear error. “It simply strains the limits of credibility to believe that forces in Colombia, absolutely oblivious to defendant’s final destination, would go to enormous effort to secret well over $2 million dollars worth of heroin in his suitcases and $50,000 in counterfeit currency in his jeans pockets.” At the very least, § 3553(f)(5) required defendant to disclose the identity of the person on whose behalf he was acting. U.S. v. Scharon, 187 F.3d 17 (1st Cir. 1999).

1st Circuit denies safety valve protection where defendant minimized her role in offense. (246) After pleading guilty to drug charges, defendant submitted to three “safety valve” interviews with government agents. The government argued, and the court ultimately found, that defendant was not entitled to safety valve protection because in her interviews she untruthfully minimized her role in the drug conspiracy and disclaimed direct knowledge about the conspiracy. The First Circuit affirmed. The case relied on by defendant, U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Circuit 1996), was distinguishable because in that case the PSR did not support the court’s finding that the defendant had been untruthful. The district court here also did more than simply state it did not believe defendant’s proffer. It made detailed findings regarding defendant’s untruthfulness, and made a carefully considered determination that she lacked credibility. U.S. v. White, 119 F.3d 70 (1st Cir. 1997).

1st Circuit requires government to rebut defendant’s plausible tale to bar “safety valve.” (246)The govern­ment had argued that defendant did not qualify for safety valve protection, con­tending she had not provided full information as required in § 3553(f)(5). The district court, believing that the plea agreement supported the govern­ment’s claim, and that the agreement was binding, found defendant did not qualify for safety valve protection. The First Circuit remanded to reconsider whether defendant had fully cooper­ated. The district court wrongly believed that the agreement was binding. Moreover, defendant’s submission, in­cluded as part of her PSR, explained that her involvement in the drug con­spiracy was limited—she was a passive participant, knowing only that drugs were stored in the house and doing little to stop it. That characterization was never objected to nor contradicted by the government. The government cannot simply state it does not believe defendant. The government’s theory that defendant must have had more information because she shared living quarters with other co-defendants was insufficient. Mere conjecture based on personal relationships cannot bar ap­plication of 18 U.S.C. § 3553(f)(5) and guideline section 5C1.2. U.S. v. Miranda-Santiago, 96 F.3d 517 (1st Cir. 1996).

1st Circuit says “safety valve” requires giving in­formation to prosecution, not probation office. (246) Defendant argued that his disclo­sures to the probation office satisfied the requirement of providing information to the “Government” under the “safety valve” provi­sion, § 5C1.2(5) and 18 U.S.C. § 3553(f)(5). The First Circuit held that the “Government” in § 5C1.2(5) and § 3553(f)(5) refers to the prose­cut­ing authority rather than the probation office. Section 5C1.2 is properly under­stood in con­junc­tion with § 5K1.1, which author­izes down­ward departures upon the government’s motion. Section 5K1.1’s reference to the govern­ment clearly refers to the prosecution, and contem­plates the defen­dant’s providing informa­tion useful in criminal prosecutions. The legislative history reinforces the notion that the safety valve requires disclosure of information that would aid prosecutors’ investigative work. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).

1st Circuit refuses to apply “safety valve” amendment retroactively. (246) Defen­dant pled guilty to drug charges. Since he met all the criteria for the “safety valve” in 18 U.S.C. § 3553(f) and guide­line § 5C1.2, the court sentenced him below the applicable mandatory minimum on July 11, 1995. However, defendant sought an additional two levels off, based on an amend­ment to § 2D1.1(b) that became effective November 1, 1995, after defendant was sentenced. The First Circuit refused to apply the new “two-level” safety valve amendment retroactively because the Sentencing Commis­sion did not list it § 1B1.10 for retroactive application. Although clarifying amendments can be applied retroactively, this was a substantive amendment. U.S. v. Sanchez, 81 F.3d 9 (1st Cir. 1996).

1st Circuit says unwittingly being recorded by government does not satisfy “safety valve’s” information requirement. (246) Under the so-called “safety valve,” defendants can escape the application of a mandatory minimum sentence if they meet certain requirements, including the requirement to truthfully provide to the government all information and evidence they have concerning their offense. Defendant argued that he “provided” such information by unwittingly being record by an undercover agent while discussing his drug distribution plans. The First Circuit held that a defendant has not “provided” information if the sole manner in which the claimed disclosure occurred was through conversations conducted in furtherance of the defendant’s criminal conduct. Congress did not intend the “topsy-turvy” result suggested by defendant. Moreover, defendant did not provide the government with all of the information and evidence he had concerning his offense. For example, in his taped conversations he claimed to have numbers of reliable customers to whom he supplied cocaine, but he did not supply any names to the government. U.S. v. Wrenn, 66 F.3d 1 (1st Cir. 1995).

2nd Circuit holds that post-Booker defendant still has burden to prove entitlement to safety valve. (246) The district court ruled that defendant was not entitled to safety valve relief under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), finding that defendant did not carry his burden of establishing that he had truthfully disclosed all that he knew concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. Defendant argued that post-Booker, the burden should be placed on the prosecution to prove untruthfulness beyond a reasonable doubt. The Second Circuit held that Booker did not alter the burden of proof for the safety valve. The fact that mandatory minimums have taken on increased significance after Booker did not undermine the court’s previous decision to place the burden of proof on the defendant to demonstrate his eligibility for the safety valve. U.S. v. Jimenez, 451 F.3d 97 (2d Cir. 2006).

2nd Circuit holds that defendant’s constructive possession of firearms disqualified him from safety valve relief. (246) The district court found that defendant had been jointly responsible for drug stash houses where firearms were kept and exercised personal dominion and control over those weapons. Therefore, the court concluded that defendant did not qualify for safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, and was not entitled to a reduction under U.S.S.G. § 2D1.1(b)(9). Defendant argued that his constructive possession of the firearms should not disqualify him from safety valve relief, noting that some circuits have held that a defendant who received a firearm enhancement under § 2D1.1 (b)(1) for possession of a dangerous weapon may still be eligible for safety valve relief, as for example when the enhancement is based on possession by a co-conspirator. The Second Circuit upheld the denial of safety valve relief. The district court did not assume that defendant was ineligible for safety valve relief simply because he received the § 2D1.1(b)(1) enhance­ment. The district court found that defendant had the firearms within his personal dominion