Safety Valve Under 18 U.S.C. 3553(f) After Pulsifer.

4. Addressing Unsupported “Serious Bodily Injury” Findings, Explain how defendants can challenge “serious bodily injury” findings, highlighting that “serious bodily injury” is defined in U.S.S.G. § 1B1.3.

5. The Interplay of Factors Determining Eligibility, Summarize how the safety valve process involves evaluating each potential bar independently, and emphasize that overcoming these bars allows defendants to receive sentences below the mandatory minimum. ***

When will the sentencing court reject disputed violence, role, or relevant-conduct findings?

Under Section 3553(f) of the Sentencing Reform Act, the safety valve generally comes into play at the sentencing hearing. The U.S. Supreme Court’s decision in Pulsifer clarified that the Government must be afforded an opportunity to make a recommendation at the safety-valve determination stage, but the sentencing court makes the eligibility determination, and a prosecutor’s opposition does not itself replace the sentencing court’s determination. Therefore, if the prosecutor disagrees with a defendant’s eligibility for safety valve, the defendant and his or her counsel should prepare to raise arguments and present evidence at the sentencing hearing to convince the judge that the defendant is entitled to be sentenced below the statutory mandatory minimum.

Along with opposing counsel at the sentencing hearing, defendants can also challenge safety-valve ineligibility in the following ways:

• Presentence-Report (PSR) Objections;
• Challenging a PSR and opposing counsel’s assertions in the defendant’s sentencing memorandum, or
• Asserting any relevant legal arguments at the sentencing hearing.

Accordingly, when a defendant’s sentencer opposes a safety-valve application on the grounds of an inaccurate criminal history point calculation, he or she has several opportunities to correct that calculation. To a similar extent, a defendant who is accused of serving as an “organizer” or “leader,” using a weapon, and/or participating in a violent offense that result in “serious bodily injury” can contest the presentence report findings or their sentencer’s opposing arguments. For example, with regard to the issue of “serious bodily injury,” the guidelines define the phrase to include:

“Serious bodily injury” means injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.

Along with presenting a factual challenge to the phrase “serious bodily injury,” a defendant may argue that serious bodily injury does not occur, and as a result, he or she is entitled to a safety-valve sentence under 18 U.S.C. § 3553(f).

Ultimately, despite the statute’s wording and the government’s arguments, a defendant is eligible for the safety valve as long as he or she satisfies all of the statute’s requirements and does not meet any of its exclusionary criteria. As these are independent requirements for safety valve sentencing, meeting one doesn’t preclude meeting others, and overcoming one doesn’t automatically make the defendant eligible for the safety valve. However, once these bars are overcome, a defendant is eligible to receive a sentence below his or her statutory mandatory minimum.

What must I disclose about the offense, related conduct, and any proffer?

As Section 3553(f)(5) explains, a defendant’s truthfulness is also a condition for eligibility under the safety valve. Specifically, not later than the time of the sentencing hearing, the defendant must truthfully and completely disclose “all information and evidence that is available to the defendant concerning the offense, or offenses, for which the defendant is charged or convicted,” and any relevant-conduct offenses.

The statute also states that disclosure under Section 3553(f)(5) should include information pertaining to “offenses in the same course of conduct,” and other “offense conduct and relevant conduct that is part of a common scheme or plan,” as established under the sentencing guidelines. Thus, a defendant who only informs the federal government about the offense or offenses they were charged with will not meet the truthfulness requirement of Section 3553(f)(5).

While this requirement sounds similar to the cooperation requirement under U.S.S.G. § 5K1.1 of the U.S. Sentencing Guidelines, the purposes of these disclosure obligations are different. Disclosure under the safety valve statute is required merely as a demonstration of truthfulness, not as a way to assist the federal government. So, while the guidelines also require disclosing information pertaining to any other “offenses in the same course of conduct” or “offense conduct and relevant conduct that is part of a common scheme or plan,” the only requirement under Section 3553(f)(5) is that a defendant’s statement be truthful and complete.

As a result, while the disclosure must be comprehensive, there is no requirement that a defendant provide useful information beyond what he or she knows.

Along with the subject matter of the disclosure, neither Section 3553(f) nor the sentencing guidelines provide a mandatory format for disclosing the relevant information. However, since the purposes of this disclosure requirement are to determine if a defendant is entitled to be sentenced below the mandatory minimum, the defendant and his or her counsel must be sure to work closely with federal agents and prosecutors.

If there is a dispute over the content of the disclosure, either because a defendant did not include all relevant information or disclosed false information at some point in the process, defendants will need to address this issue at sentencing in order to pursue safety valve eligibility.

What sentence changes if I qualify for safety-valve relief?

While qualifying for the safety valve significantly changes the potential sentencing outcomes for an eligible defendant, it is important for defendants to understand that this relief is far from a total exoneration or a guaranteed outcome of probation.

Specifically, after the federal court’s determination that a defendant is entitled to safety-valve relief under Section 3553(f) of the Sentencing Reform Act, the following will remain true:

• The defendant’s sentence will not be automatically dismissed;
• the defendant is not automatically guaranteed probation; and,
• the defendant’s conviction will remain on the criminal record.

That being said, qualifying for safety-valve relief comes with significant benefits. First, unlike the substantial-assistance relief described under Section 5K1.1 of the sentencing guidelines, qualifying for the safety valve does not require the government to move for a downward departure.

As a result, defendants who seek substantial-assistance relief will be at the total mercy of the government’s prosecutors, while those who qualify for safety valve sentencing will have a greater level of control over their sentencing outcome.

In addition to avoiding the statutory minimum, qualifying drug offenders may also qualify for a two-level reduction under U.S.S.G. § 2D1.1(b)(18). The guidelines state:

Section 2D1.1(b)(18) provides a two-level reduction if the defendant meets the criteria set forth in paragraphs (1)-(5) of subsection (a) of § 5C1.2.

Therefore, along with receiving a sentence below the mandatory minimum, qualifying defendants should also pursue a two-level offense-level reduction as warranted by the facts of their particular case.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.