What is the Safety Valve in Federal Sentencing? 

The “Safety Valve” provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria. See 18 U.S.C. § 3553(f)(1)–(5). This means the judge can go below the mandatory minimum sentence. Notice, that this applies only to drug crimes.

For example, if a judge is sentencing someone for a drug charge under 21 U.S.C. § 841(b)(1)(b), then the lowest sentence the statute (law) authorizes is 5 years of imprisonment. However, if the judge is sentencing a person who qualifies for “Safety Valve,” then the judge may impose a prison sentence below 5 years. 

Understanding Safety Valve requires us to remember one of the basic, but essential rules of federal sentencing: The Guidelines do not change the statutory range. Safety Valve breaks this rule. The two other ways to get a sentence below a statutory minimum involve “substantial assistance” and require a 5K Motion or Rule 35 Motion.

If you think this seems a bit confusing, do not be discouraged. Many lawyers have a difficult time keeping this straight in their heads. We can help. Cody Cofer leads the Federal Criminal Defense Attorneys at Cofer Luster. We have experience successfully defending hundreds of federal cases.  

Requirements for Safety Valve 

The requirements are found in 18 U.S.C. § 3553(f).

Congress amended the first set of criteria, in § 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he “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. § 3553(f)(1). 

United States Sentencing Guidelines Safety Valve

Safety Valve is codified at 18 U.S.C. § 3553(f). The provision allows the court to sentence a defendant without regard to an otherwise applicable mandatory minimum term of imprisonment for certain types of drug-trafficking charges if the defendant satisfies the five criteria in the statute. A corresponding guidelines provision is USSG §5C1.2. In addition, §2D1.1(b)(17) provides for a 2-level decrease in the offense level for defendants who satisfy the safety valve criteria, regardless of whether they are subject to a mandatory minimum. 

United States Supreme Court Litigation

The U.S. Supreme Court will soon decide an important question about the Safety Valve in federal sentencing. U.S. Supreme Court granted certiorari in Pulsifer v. United States, No. 21-1609 (Feb. 27, 2023) (cert. granted) and heard argument on October 2, 2023. 

The question presented concerns the criteria in § 3553(f)(1), which focuses on the defendant’s prior criminal history “as determined under the sentencing guidelines.” Before § 3553(f)(1) was amended by the First Step Act of 2018, § 402, 132 Stat. at 5221, a defendant had to show that he did “not have more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1) (2017). The First Step Act broadened eligibility for relief. As amended, § 3553(f)(1) reaches a defendant who “does not have—(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense … ; (B) a prior 3-point offense … ; and (C) a prior 2-point violent offense.” 18 U.S.C. § 3553(f)(1)(A)–(C) (emphasis added). The question presented is whether the term “and” carries a conjunctive or disjunctive meaning. In other words, does a defendant satisfy § 3553(f)(1) unless he has (A), (B), and (C), or must he have none of (A), (B), or (C)?

The newest information can be found on the Supreme Court’s website here. 

The Exception is Very Limited 

Under current federal law, there is only one safety valve, and it applies only to first-time, nonviolent drug offenders whose cases did not involve guns. Since 1994, when the law took effect, more than 100,000 nonviolent drug offenders have received fairer sentences because of it. Unfortunately, it is a very narrow exception. Hopefully, the law will change and make our safety valve law even more effective.

The mere presence of even a lawfully purchased gun in a person’s home or car is enough to disqualify a nonviolent drug offender from the Safety Valve. Other federal mandatory minimum sentences for other types of crimes – notably, gun possession offenses – are often excessive and apply to low-level offenders who should serve less time in prison. Our legislators need to create a broader Safety Valve that applies to more mandatory minimum sentences and expand the existing drug safety valve to cover more low-level offenders.

Federal Sentencing Attorney 

Cofer Luster has a team with the infrastructure, knowledge, and skill to get exceptional federal sentencing outcomes. Our efforts are led by Cody Cofer. He is a former Assistant Federal Public Defender and former prosecutor. He has a Doctor of Jurisprudence and a Master’s in Business Administration. Mr. Cofer is Board Certified in Criminal Law by the Texas Board of Legal Specialization and has been for more than 10 years (Certified 2013, recertified 2018, recertified 2023). He teaches criminal law to law students and practicing attorneys. Facing a federal judge at sentencing is a terrifying prospect. Give yourself the best chance of the best outcome.