Someone accused in federal court of drug trafficking or drug conspiracy can face an exceptionally harsh sentence of ten years or more as a “mandatory minimum sentence” under the Federal Sentencing Guidelines. A talented and careful criminal defense attorney can make use of the “safety valve” to steer clear of such harsh sentences often times. An unsuccessful effort to qualify for the safety valve can backfire, however, and could cause the accused to suffer a significantly longer sentence than if the accused hadn’t sought the safety valve. It is extremely important that the criminal defense attorney possess a thorough understanding of how the safety valve works, and know how to increase the odds that his client will be eligible for it.

The safety valve is one of only two methods for 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 furnishes 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 honestly discloses everything he knows about the crime he committed in advance of 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   the crime with him or who assisted him in any aspect.

It can be difficult for the majority of defendants to be completely honest during the meeting with the Government wherein they seek to qualify for the safety valve. Usually defendants minimize their involvement in the crime and blame others. But once they’re caught lying to the Government, the prosecutor will have good cause to refuse to provide the safety valve. Consequently, it is incredibly crucial 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 2 or 3 separate occasions to ensure that the meeting has the best chance of being productive.

A defendant who unsuccessfully attempts to qualify for the safety valve by giving a statement to the Government will almost certainly be given a longer sentence than if he hadn’t sought the safety valve. There are numerous explanations for this, one of which is that when the prosecutor believes the defendant lied in the course of the safety valve statement, an “obstruction of justice” enhancement can be added to the sentence which will increase the “offense level” by two levels, thus increasing the length of the sentence by as little as a few months and by potentially as much as many years.

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