Federal law establishes harsh mandatory minimum penalties for defendants who possess certain quantities of specified controlled substances.

One of the few available mechanisms for obtaining a sentence below a mandatory minimum sentence, commonly referred to as the safety-valve provision, is outlined in 18 U.S.C. 3553(f) and §5C1.2 of the United States Sentencing Guidelines. A sentencing court is not bound by the mandatory minimum prison sentence if a defendant qualifies for safety-valve relief.

Eligibility for the Safety-valve Provision

The safety-valve provision is the embodiment of the notion that mandatory minimum sentences are draconian and unnecessary when applied to a delineated subsection of defendants.

To be eligible for safety-valve relief, a defendant bears the burden of proving five factors (with emphasis now added to a term with a disputed meaning). These factors are that:

• the defendant does not have

• more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

• a prior 3-point offense, as determined under the sentencing guidelines; and

• a prior 2-point violent offense, as determined under the sentencing guidelines;

• the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

• the offense did not result in death or serious bodily injury to any person;

• the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

• no later than the time of the sentencing hearing, the defendant has truthfully provided to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

A Split Over 'And'​

A circuit split has developed in 2021 as it relates to the application of subsection (1). The simplest explanation of the split is whether “and” actually means “and.”

In United States v. Lopez,¹ the Ninth Circuit held that a defendant is eligible for safety-valve relief under subsection (1) if defendants show that any of the following criteria do not apply to them:

• four total criminal history category points;

• a prior three-point offense; and

• a prior two-point violent offense.

Unsurprisingly, the Eleventh Circuit came to a different conclusion. In United States v. Garcon,² the court used the same analysis of the issues as the court in Lopez, but reached the opposite conclusion. The Garcon court held that if the defendant fails to show that the defendant does not meet any of the criteria outlined in subsection (1), they are ineligible for safety-valve relief and the mandatory minimum sentence applies.

A brief fact pattern helps explain this circuit split.

Suppose a defendant is convicted of delivering one kilogram of methamphetamine in a district within the Ninth Circuit. Typically, a 10-year mandatory minimum sentence would apply. The defendant’s criminal history is somewhat lengthy, and includes a drug conviction that resulted in a prison sentence. The defendant has more than four criminal history category points, a three-point offense, but no two-point violent offense. Pursuant to the Ninth Circuit’s Lopez rationale and holding, the defendant will qualify for the safety-valve, assuming he meets the other criteria established in 18 U.S.C. 3553(f).

The sentencing court would be allowed to sentence the defendant under the mandatory minimum sentence. If that same defendant were instead convicted in the Eleventh Circuit, they would be ineligible for the safety-valve provision because they meet one of the criteria outlined in subsection (1). In those circumstances, the sentencing court would not be allowed to sentence the defendant under the mandatory minimum sentence.

Seventh Circuit and Draheim

It does not appear that the Seventh Circuit has yet addressed this issue.

The Seventh Circuit addressed a similar matter in United States v. Draheim³ in 2020. In Draheim, the court analyzed subsection (4) of the safety-valve provision. The defendant argued that the language in subsection (4) used the conjunctive, thus allowing a defendant to show entitlement to safety-valve relief on element (4) by proving either that he or she was not a leader of others or had not engaged in a criminal enterprise.

The court disagreed with this argument for three reasons. First, the burden was on the defendant to prove that they were not a leader and not engaged in a continuing criminal enterprise. Second, the legislative history of the statute and guidelines described safety-valve relief as being saved for those “first-time, non-violent drug offenders who were not organizers of criminal activity and who have made a good-faith effort to cooperate with the government.” Third, the Sentencing Commission’s commentary related to engagement in criminal enterprise in U.S.S.G. §5C1.2 contradicted the defendant’s argument.⁴

For those reasons, in the simplest of terms, the court in Draheim reasoned that “and” does not mean “and” as it relates to subsection (4) of 18 U.S.C. 3553(f).

While Draheim addresses a particular use of the conjunctive in safety-valve subsection (4), it may be distinguishable for purposes of subsection (1). All parties will agree that the burden is on the defendant to prove they qualify for safety-valve relief.

However, the remaining two lines of reasoning in Draheim may not be informative when reviewing the competing holdings of the Ninth and Eleventh Circuits. To begin, no recent sentencing guideline commentary exists as to subsection (1) of the safety-valve provision.

The outdated commentary only addresses the pre-First Step Act requirement that no longer applies. Also, the legislative history of the First Step Act may support an argument that its intent is to make more defendants eligible for safety-valve relief and reading subsection (1) in the conjunctive would achieve that goal.

Conclusion: Heading to the U.S. Supreme Court?

Courts will continue to address this issue in the varying circuits. If additional circuit splits are created, the issue may soon be addressed by the United States Supreme Court.

Until then, hopefully our leaders continue to reflect on whether mass incarceration and the removal of judicial discretion are wise investments of governmental power.

This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ United States v. Lopez, 998 F.3d 431 (9th Cir. 2021).

² United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021).

³ United States v. Draheim, 958 F.3d 651 (7th Cir. 2020).

⁴ Draheim, at 658.