ive been charged with a 5 year mandatory minimum for selling drugs, i meet the first 4 criteria for the safety valve and have met with the DEA to cooperate, giving them the information on where it came from, and other questions they asked. I allowed them to search my phone, memory cards, and computer they confiscated. ive complied with everything they have asked but my lawyer says without a controlled buy its not likely i will get the safety valve. Is this right? i can't imagine they want to give me the full 60 months after all of this, i dont know if im getting bullied into more cooperation but my plea is soon and im scared thats what they might push for. any insight would be greatly appreciated!
The standards for "safety valve" eligibility are set forth in 18 U.S.C. Section 3553(f). There is nothing in that statute that requires you to make a "controlled buy" in order to be eligible.
This is a decision that is made by the Court at sentencing, not by the federal prosecutors. Of course, you will have a better chance of convincing the Court that you are eligible if the government agrees that you qualify for the safety valve. But it would be improper for the government to refuse to recommend you solely because you declined to participate in a controlled buy -- the relevant criteria is whether you have truthfully provided all relevant information and evidence to the government.
The safety valve simply gets you out of the mandatory 5-year minimum, and you may still be facing a substantial sentence under the applicable Sentencing Guidelines. One way for you to receive a lower sentence under the Guidelines is to provide additional cooperation with the government (called "substantial assistance" under the Guidelines). If you were to participate in a controlled buy, this may qualify as substantial assistance and may entitle you to additional reductions in the Guidelines range pursuant to Section 5K1.1 of the Guidelines.
But in order to benefit from any downward departure due to substantial assistance, you need to get out from under the 5-year mandatory minimum first.
I know not nearly enough about your case to give you even remotely close to as good advice as an attorney that has seen all of the discovery and spoke with the ADA and SA in charge. I'd follow the advice of your attorney. If you are not happy with your attorney and can afford to, find another one.
While I can understand your concerns, I agree that you may need to participate in a controlled buy. Although not in every case, I have seen DEA or other agents speak with the prosecutor, the defense and the judge (off the record) about cooperation/assistance they receive from a client. My sense is that this may be the only option available to you under the circumstances.
Attorney Jensen is correct.
You do not need to do a controlled buy to avail yourself of safety valve. Cooperation with the government beyond making a proffer (meet and discuss) is not necessary. Also keep in mind that safety valve cooperation requires only that you provide complete and truthful information about the crime with which you are charged. You do not have to discuss people, crimes events or anything else that is not related to the current crime. Your confusion seems to arise form the difference between getting the safety valve and becoming a cooperating person or confidential informant for which you would usually get a lot more consideration than safety valve. Listen to your attorney. If he cannot make this distinction, get another attorney. YOU ABSOLUTELY NEED AN ATTORNEY IN THIS TYPE OF CASE. Also, as is the case with many of the questions on Avvo, you must remember that this is not a secure site and you must assume that it is or may be monitored so be careful what you throw out there into cyber space.
Eligibility for the safety does not require you to do a buy for the feds. That would make you a cooperator and perhaps eligible for a 5K1.1 substantial assistance downward departure, which is totally different from the safety valve. If they're telling you you have to do a buy, they are jerking you around, or else implying that they will claim to the judge that you haven't told them everything you know and should be denied the safety valve. Judges can make that call independently -- it's not up to the USAO, in my experience.
Drug related crimes involve illegal use of controlled substances that are legal—like some prescription medications—or illegal—such as marijuana or heroin.
Judges do not have discretion to reduce mandatory minimum sentences. However, a plea bargain may change the charge to one that doesn't have a mandatory minimum.
Written by attorney Suzanne L Klok
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