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Can a judge go under the mandatory minimum in a federal drug conspiracy case?

New York, NY |

A court appointed lawyer is saying there is no way to get probation, even if you are seeking drug treatment, counseling and attending school.

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Attorney answers 7


Federal mandatory minimums cannot be undercut. There is a so called "safety valve" which allows the defendant to basically confess to the government which can then recommend going below the minimum.


Why do you think your court appointed lawyer doesn't know what he's talking about?


He would be correct.....that's why they are called mandatory minimum's.

Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


If you qualify for the safety valve. This requires you to meet with the Government and tell them everything you know.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at The above answer is for informational purposes only and not meant as legal advice.


A district court may sentence a defendant below the mandatory minimum sentence in a drug case (1) if the defendant provides substantial cooperation to the Government in the investigation or prosecution of other individuals *and* the Government files a motion for downward departure prior to sentencing pursuant to 18 USC 3553(e) and USSG 5K1.1; or (2) if the defendant qualifies for the "safety valve" pursuant to 18 USC 3553(f) and USSG 5C1.2, which requires a full debriefing, no more than one criminal history point, no firearms possession or use, no death or serious bodily injury and no leadership role. Of course, these statutes only provide the district court with the authority to sentence a person below the mandatory minimum sentence if either or both conditions are met; the quantity of drugs proven by the Government remains the primary factor in the district court's determination whether such sentence is proper.

Joshua Sabert Lowther, Esq.


A mandatory minimum is the lowest sentence the judge can give. Thus, you could be elected Pope and you would still get it. There are two exceptions: 1. You cooperate with the government and provide enough information that allows the government to prosecute others and the prosecutor agrees, based on your substantial assistance, to make a motion under 18 U.S.C. 3553(e) and USSG 5K1.1 to allow the Court to sentence you below the guidelines and below the mandatory minimum; 2) you are a first offender with 1 or fewer criminal history points, were not the leader of the offense, no gun, no violence and you debrief the government about the offense, you can qualify for safety valve which allows the judge to sentence below the mandatory minimum even if the information was not helpful in prosecuting others. That's it. Otherwise, your attorney is exactly right.

This answer is provided for educational purposes only and is not intended as the practice of law in any jurisdiction in which I am not licensed. The answer does not constitute legal advice nor does it create an attorney-client relationship. The answer is based only on the information provided, and may be inaccurate in the context of additional facts that have not been provided. The questioner should be aware that I am only licensed to practice law in the state and federal courts of Minnesota. Accordingly, before taking any action or refraining from taking any action, the questioner should consult with an attorney licensed to practice in his or her jurisdiction.


Being sentenced to below statutory mandatory minimums is very difficult, but not impossible. The "safety valve" exception is one way, but very restrictive. Specifically if a gun was used or alleged to have been used. "Substantial assistance" is another manner to get below the mandatory minimum. Your attorney knows more about your case than any of us answering, so it is very likely an exception does not apply to you. Federal sentencing is very complex and depends on many factors such as offense level, criminal history category, table zones, departures, etc. I suggest meeting with a federal criminal defense attorney in your area.

The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.

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