SAFETY VALVE IN FEDERAL SENTENCING
Even the best federal criminal lawyers know that sometimes your clients are convicted and face sentencing in federal court. The Colorado federal sentencing lawyers at Newland Legal know that a top federal defense lawyer can mean a difference in decades in prison to our clients.
In federal drug cases, our clients are often facing incredibly stiff mandatory minimum sentences of 10 years or more even if they were barely involved in a crime. This is especially true in federal drug conspiracies where someone who knowingly drove a car with a package inside it can be charged under 21 U.S.C. 841(b)(1)(A) and face 25 years to Life in prison.
The federal “safety valve” is one rare exception to these very harsh federal mandatory minimums. You need a lawyer who knows if you are safety valve eligible on day one of your case and is ready to fight for you to get your freedom back as soon as possible.
The U.S. Court of Appeals for the Eleventh Circuit handed down a blockbuster opinion on the meaning of the federal safety valve after the First Step Act on December 6, 2022, that is a game changer for thousands of defendants moving forward. The case is United States v. Garcon, No. 19-14650, 2022 U.S. App. LEXIS 33588 (11th Cir. Dec. 6, 2022).
What is the “Safety Valve”?
Normally, federal criminal law sets stiff mandatory minimums for certain drug crimes. The mandatory minimums can be as high as 25 years (for people with qualifying priors), 15, 10, or 5 years depending on the drug type and quantity of drugs involved. See 21 U.S.C. Sec. 841. When these mandatory minimums apply in a case a judge’s hands are usually tied: you cannot get less time than the mandatory minimum, with few exceptions.
The so-called federal “safety valve” is one of the few exceptions that unties a judge’s hands and allows them to sentence someone to less time than a mandatory minimum.
Federal Safety Valve Text
When the “safety valve” provision of the First Step Act, 18 U.S.C. § 3553(f), applies a district court “shall” sentence certain convicted drug defendants with little or no criminal history according to the United States Sentencing Guidelines “without regard to any statutory mandatory minimum sentence.”
The text of the safety valve determines who is safety valve eligible. Let’s take a look at who the First Step Act of 2018 says qualifies for safety valve relief in federal sentencing:
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
18 U.S.C. Section 3553(f)(1)(bold text emphasis added).
Seems straightforward enough, right? Certain defendants with drug crimes who don’t have disqualifying prior convictions can get sentenced under the mandatory minimums and the judge can follow the United States Sentencing Guidelines. Sadly, federal criminal courts across the country have divided on just who is safety valve eligible after the First Step Act of 2018 was passed. That is exactly the question the Garcon court wrestled with recently.
Garcon: District court says defendant is safety valve eligible and Government appeals
Julian Garcon was charged with attempted possession of 500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. § 841(b)(1)(B)(ii). As a result, he faced a five-year mandatory minimum sentence in federal court and he pleaded guilty.
Presentence Investigation Report calculates Mr. Garcon’s Guideline Range
A federal presentence investigation report was prepared and it determined that Mr. Garcon’s Base Offense Level was 24 points because he possessed between 500 grams and two kilograms of cocaine. With a three-point reduction for accepting responsibility, Mr. Garcon’s total offense level came to 21 points.
The PSR also calculated that Mr. Garcon had a criminal history category of II as a result of a prior three-point offense for possessing a firearm as a convicted felon. This meant that the PSR produced a recommended federal Sentencing Guidelines range of 41-51 months. However, because Mr. Garcon’s crime caried a five-year mandatory minimum sentence (60 months) he could not get less than 60 months unless he was safety valve eligible.
Garcon objected to the federal probation office’s PSR because it did not say he could benefit from the federal safety valve.
What is the safety valve in federal sentencing?
At sentencing, Mr. Garcon argued that he was eligible for safety valve relief under the First Step Act as outlined at 18 U.S.C. § 3553(f)(1) (which we discussed above). Garcon argued, and the district court agreed, that the “and” in § 3553(f)(1)(A)-(C) was conjunctive. Put differently, the district court said that defendants were federal safety valve eligible unless they had:
(1) More than four criminal history points, excluding any points resulting from one-point offenses;
(2) A prior three-point offense; AND
(3) A prior two-point violent offense.
The district court determined Mr. Garcon was safety valve eligible at his federal sentencing because Mr. Garcon had only a prior three-point offense. The prosecution hated this outcome and appealed.
The prosecution argued that Mr. Garcon was ineligible for relief because they thought 18 U.S.C. § 3553(f)(1) was written in the disjunctive; they argued that “and” did not mean and. Since Mr. Garcon had a prior three-point conviction, the prosecution argued, the First Step Act did not make him safety valve eligible.
11th Circuit First Opinion: “and” actually means “or”
When the Government appealed, a three-judge panel of the 11th Circuit first heard Mr. Garcon’s case. In the first decision on appeal, the judges disagreed with the district court’s interpretation of the federal safety valve as amended by the First Step Act of 208.
The panel reasoned that the word “and” in subsection (f)(1) [the bold “and” up above] actually means “or.” The full 11th Circuit voted to rehear the case en banc (meaning all active judges instead of just three) to resolve this issue on the meaning of the federal safety valve and who is eligible.
Full 11th Circuit Says It Loud: “and” means “and” in the safety valve
When all of the 11th Circuit judges issued their revised opinion, they came to the opposite conclusion. According to the en banc decision, “and” has its ordinary meaning which is in the conjunctive sense. They discussed at length how the use of “and” in a series of things (“you must not do A, B, and C) has an ordinary meaning of including the whole list instead of just any one of list components.
The Eleventh Circuit used a simple example that is helpful for understanding the argument about safety valve eligibility in federal court. The command “you must not drink and drive,” means that you can do either (A) drink or (b) drive by itself. You just cannot do them together.
This conclusion was hotly contested by other members of the Eleventh Circuit and there were many split opinions. In fact, the Fifth Circuit and the Eighth Circuit have both reached the opposite conclusion on the meaning of the federal safety valve text. United States v. Palomares, 52 F.4th 640, 643–45 (5th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018, 1021–22 (8th Cir. 2022); but see United States v. Lopez, 998 F.3d 431, 436 (9th Cir. 2021) (reaching same conclusion as 11th Circuit on safety valve eligibility).
In the end, the Eleventh Circuit affirmed Mr. Garcon’s sentence. He was eligible for relief under the federal safety valve so it was appropriate for the district court to sentence him below the otherwise-mandatory minimum sentence. It was very important to the outcome of this case that Mr. Garcon’s federal defense lawyer made the right safety valve arguments at his original sentencing hearing.
Federal Safety Valve Sentencing Attorney
Moving forward, we expect more U.S. Courts of Appeals to weigh in on this vital safety valve eligibility question. Only three of the 12 U.S. Courts of Appeals have addressed it in the four years after the First Step Act changed the law.
In federal sentencing, eligibility for the safety valve literally means the difference in years of prison time. You deserved an experienced lawyer who knows the ins and outs of the safety valve after the First Step Act who can get it right the first time.
Does your attorney know that there is currently a split of authority among the appellate courts as to who can get safety valve relief? If you have a federal criminal case in Colorado, Wyoming, or Montana does your attorney know that the Tenth Circuit has not weighed in on this issue as of December 20222?
At Newland Legal, we are prepared fight for you, make novel legal arguments about federal safety valve eligibility, and put your case together in a compelling way at sentencing.
Do you or your loved one in federal criminal court have a federal safety valve issue? IIf so, contact the experienced federal defense attorneys of Newland Legal at (303) 948-1489 or by email to zach@newlandlegal.com to discuss your case today.
Contact the attorneys at Newland Legal today if you have a federal criminal court case in Colorado and want to discuss your case. The attorneys at Newland Legal are experienced federal criminal defense attorneys who are not afraid to fight in any federal courtroom across the United States.
