Written by attorney Jeffrey Tyson Hammerschmidt


A person accused in federal court of drug trafficking or drug conspiracy can face an incredibly harsh sentence of ten years or more as a “mandatory minimum sentence" under the Federal Sentencing Guidelines. A skilled and careful criminal defense attorney can use the “safety valve" to avoid such harsh sentences in many cases. An unsuccessful attempt to qualify for the safety valve can backfire, however, and can cause the accused to suffer a much longer sentence than if the accused had not sought the safety valve. It is imperative that the criminal defense attorney have a thorough understanding of how the safety valve works, and how to increase the odds that his client will qualify for it.

The safety valve is one of only two ways of avoiding the mandatory minimum sentence of ten years or more for drug trafficking and drug conspiracy. The other method, which is discussed in a separate article, is to provide “substantial assistance" to the Government under 5K1.1 of the Federal Sentencing Guidelines.

The safety valve is set forth in 5C1.2 of the Federal Sentencing Guidelines. It provides relief from the mandatory minimum sentence if the defendant has little to no criminal history (which is defined as 0 or 1 criminal history points) and if the defendant truthfully discloses everything he knows about the crime he committed prior to sentencing. Such disclosure requires that the defendant tell the Government everything about his actions and that he tell the Government about all of the actions of those who participated in the crime with him or who assisted him in any way.

It is difficult for most defendants to be completely honest during the meeting with the Government in which they seek to qualify for the safety valve. Usually defendants will want to minimize their involvement in the crime and blame others. But once they are caught lying to the Government, the prosecutor will have good cause to refuse to give the safety valve. As a result, it is extremely important that the defendant’s attorney thoroughly prepare his client for the meeting with the Government. A skilled defense attorney will practice the interview with his client on a minimum of two or three separate occasions so that the meeting has the best chance of being productive.

A defendant who unsuccessfully attempts to qualify for the safety valve by providing a statement to the Government will likely receive a longer sentence than if he hadn’t sought the safety valve. There are many reasons for this, one of which is that if the prosecutor believes that the defendant lied during the safety valve statement, an “obstruction of justice" enhancement can be added to the sentence that will increase the “offense level" by two levels, which can increase the length of the sentence by as little as a few months and by as much as many years.

If you or a member of your family is accused of a federal drug crime, it is best to immediately seek the advice of an attorney skilled and experienced in federal drug defense.

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