Not Guilty “Enough”: Fighting Minimum Mandatory Sentences as a Minor Participant
In federal court, statutory minimum sentences (aka “minimum mandatory” sentences or “min/mans”) often dissuade charged individuals from forcing the government to meet its burden of proof of trial. For example, in a drug trafficking case, if the government charges a large enough drug amount (like 5+ kilos of cocaine), the accused person could face a minimum of 10 years in prison.
However, the accused can be sentenced below the min/man through a mechanism called “safety valve.” Safety valve comes from 18 U.S.C. § 3553(f), and allows sentencing without regard to a statutory sentence for certain offenses so long as these conditions are met:
The accused doesn’t have a certain number of criminal history points (depending on the type of prior offense);
The accused didn’t use violence/credible threats of violence or possess a firearm in connection with the offense;
The offense didn’t result in serious bodily injury;
The accused wasn’t a leader/organizer/manager of the offense and wasn’t involved in a continuing criminal enterprise; and
“Not 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”
The 5th requirement is what’s called a “safety valve statement.” It’s typically made in a meeting with the accused, their attorney, the prosecutor, and a federal agent. During the meeting, the accused shares everything that they know about the offense and others involved.
But what happens if the accused individual played so small a role that they really don’t know anything about others’ conduct? This scenario is common in drug trafficking cases. Often, higher-ups in the drug trafficking organization pay small amounts to desperate people for them to act as “couriers.” The DEA frequently arrests the small fish before the big fish, in the hopes that the small fish will lead them to the big fish. However, the couriers don’t have a lot of information to give the DEA. Many couriers don’t even know the real names of the people they’re taking orders from.
The problem is, the government sometimes refuses to recommend safety valve at sentencing if they feel like the accused didn’t give “enough” information. Essentially, the government argues that the accused is guilty, but not guilty enough. Even more problematic, some prosecutors will refuse to recommend safety valve and refuse to acknowledge that the accused was a minor participant in the drug conspiracy. In the Sentencing Guidelines Manual, a minor or minimal participant can obtain 2 to 4 levels off their guideline sentence. In the drug trafficking context, couriers are the perfect example of minor participants.
The government’s refusal to agree to safety valve and guideline adjustments leaves the accused courier feeling stuck—they can’t risk going to trial knowing that, at a minimum, they could receive 10 years. But they certainly don’t deserve 10 years given their role in the conspiracy.
Fortunately, the safety valve statute contains the following provision, which allows individuals to get safety valve even if they don’t have much to offer or even if the information they provide is not new, so long as the information is truthful:
“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.”
In other words, you don’t have to be the government’s star witness to get safety valve. And thankfully, judges don’t have to listen to the government’s recommendation and can grant safety valve even if the government disagrees. This is why it is vital for an accused person to have a knowledgeable defense attorney who will fight for a fair sentence and not allow the government to seek a disproportionately high sentence simply because the accused is not guilty enough to crack open the case.
The blog post does not constitute legal advice and should not be construed to create an attorney-client relationship. If you have been charged with a drug trafficking crime, please consult with an attorney regarding your case.
