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Federal law requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses. Congress has created three exceptions. Two are available in any case where the prosecutor asserts that the defendant has provided substantial assistance in the criminal investigation or prosecution of another. The other, commonly referred to as the safety valve, is available, without the government's approval, for a handful of the more commonly prosecuted drug trafficking and unlawful possession offenses that carry minimum sentences.
Qualification for the substantial assistance exceptions is ordinarily only possible upon the motion of the government. In rare cases, the court may compel the government to file such a motion when the defendant can establish that the refusal to do so was based on constitutionally invalid considerations, or was in derogation of a plea bargain obligation or was the product of bad faith.
Qualification for the safety valve exception requires a defendant to satisfy five criteria. His past criminal record must be minimal; he must not have been a leader, organizer, or supervisor in the commission of the offense; he must not have used violence in the commission of the offense, and the offense must not have resulted in serious injury; and prior to sentencing, he must tell the government all that he knows of the offense and any related misconduct.
In response to a congressional request, the U.S. Sentencing Commission recommended expansion of the safety valve. The First Step Act, P.L. 115-391, broadened the safety valve for the benefit of (1) defendants with slightly more serious criminal records and (2) defendants convicted under the Maritime Drug Enforcement Act.
Federal law houses hundreds of offenses punishable by a mandatory minimum term of imprisonment.1 Although only a handful of these mandatory minimum offenses are prosecuted with any regularity, drug trafficking offenses accounted for over two-thirds of the total.2 Congress has created three procedures that make punishment for these offenses a little less mandatory. One, the so-called safety valve (18 U.S.C. § 3553(f)), permits a sentencing court to disregard a statutory minimum sentence for the benefit of a low-level, nonviolent, cooperative defendant with a minimal prior criminal record, convicted under several mandatory minimum controlled substance offenses. The other two, 18 U.S.C. § 3553(e) and Rule 35(b) of the Federal Rules of Criminal Procedure,3 afford a sentencing court comparable latitude but only on the motion of the prosecutor, based on the defendant's substantial assistance to the government, and without regard to the offense charged.
In October 2009, Congress instructed the U.S.Depending on how the class is defined, there are hundreds of federal mandatory minimum offenses.1 Yet only a handful are prosecuted with any regularity, including under 21 U.S.C. 841 (trafficking in controlled substances), 844 (possession of controlled substances), and 960 (smuggling controlled substances). Congress has provided two escape hatches under which a court may sentence a defendant below the statutory mandatory minimum. One, 18 U.S.C. 3553(e), is available only on the motion of the prosecutor based on the defendant's substantial assistance to the government and without regard to the offense charged. The second, 18 U.S.C. 3553(f), requires neither substantial assistance nor the prosecutor's endorsement, but is limited to the mandatory minimum sentences required in five sections of the federal drug law. Each of the sections is reflected in a parallel provision in the United States Sentencing Guidelines.2
In October 2009, Congress instructed the United States Sentencing Commission to prepare a report on the mandatory minimum sentencing provisions under federal law.34 In early 2010, the Commissioncommission conducted a survey of federal district court judges regarding their views on mandatory minimum sentencing. A majority of those responding endorsed amendments to the safety valve and substantial assistance exceptions.45 The Commissioncommission also held a public hearing at which several witnesses urged adjustments in the safety valve and substantial assistance provisions.56 The Commissioncommission subsequently recommended that Congress consider expanding the safety valve to cover other offenses and to reach offenders with a slightly more extensive prior criminal record.6
The First Step Act authorized safety-valve relief for convictions under the Maritime Drug Enforcement Act and for defendants with slightly more extensive prior criminal records.8
Low -level drug offenders can escape some of the otherwise applicable mandatory minimum sentences if they qualify for the safety valve found in 18 U.S.C. 3553(f)..9 Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders.710 It is available to qualified offenders convicted of violations of the possession with intent, thedrug trafficking, simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export Acts.8acts.11
It is not available to avoid the mandatory minimum sentences that attend some of the other controlled substance offenses, even those closely related to the covered offenses. For instance, §860 (21 U.S.C. 860), which outlaws violations of §841not covered are convictions under the statute that proscribes drug trafficking near schools, playgrounds, or public housing facilities and that sets the penalties for violation at twice what they would be under §841, is not covered. Those charged with a violation of §860 are not eligible for relief under the safety valve provisions.9 In additionthose set for simple drug trafficking.12 In addition, until the First Step Act, safety valve relief iswas not available to those convicted under the Maritime Drug Law Enforcement Act (MDLEA), even though the MDLEA proscribes conduct closely related to the smuggling and trafficking activities punished under §960 and §963.10
The Supreme Court held in Alleyne outlawed in the Controlled Substances Import and Export Act.13
The prosecution need not prove that a defendant is ineligible for safety valve relief. The Supreme Court did hold in Alleyne v. United States "that any fact that increases the mandatory minimum is an 'element' [of the offense] that must be submitted to the jury," and proved beyond a reasonable doubt.1114 Subsequent lower appellate courts, however, have held that Alleyne does not require the presentation to the jurya jury verdict or application of the reasonable doubt standard.1215 Thus, for the convictions to which the safety valve does applyapplies, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve's five requirements.1316 He may not have more than onea disqualifying criminal history point total.17.14 He may not have used violence or a dangerous weapon in connection with the offense.1518 He may not have been an organizer or leader of the drug enterprise.1619 He must have provided the government with all the information and evidence at his disposal.1720 Finally, the offense may not have resulted in serious injury or death.1821
[T]he defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines, 18 U.S.C. 3553(f)(1).19
(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).22The criminal history point qualification–
Two or more points are assigned for every prior sentence of imprisonment or juvenile confinement of 60 days or more orPrior sentences of imprisonment or juvenile detention of less than 60 days are assigned a single criminal history point.23
Prior sentences of imprisonment or juvenile detention of from 60 days up to a year and a month are assigned two criminal history points; as are sentences imposed for offenses committed while the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release.20 A single point is assigned for every other federal or state prior sentence of conviction, subject to certain exceptions.21
Prior sentences of imprisonment for a year and a month or more are assigned three criminal history points.25 A number of convictions do not count, including the following:Foreign sentences of imprisonment are not counted;22 nor are sentences imposed by tribal courts;23 nor summary court martial sentences;24 nor sentences imposed for expunged, reversed, vacated, or invalidated convictions;25 nor sentences for certain petty offenses or minor misdemeanors.26 The Sentencing Guidelines list two classes of these minor misdemeanor or petty offenses that are not counted for criminal history purposes and thus for safety valve purposes. One class consists of eight types of minor offenses, like hunting and fishing violations or juvenile truancy, that are not counted regardless of the sentence imposed.27 The other class consists of arguably more serious offenses, such as gambling or prostitution, that are only excused24
28 Both classes also include similar34
offenses to those listed "by whatever name they are known."29
Two-thirds of the judges who responded to the Commission's survey favored expanding the safety valve criminal history criterion to encompass those with 2 or 3 criminal history points,30 although less than one-quarter favored expansion of the criterion further.31 Some of the Commission's hearing witnesses concurred.32 The Commission's report on mandatory minimums, in fact, recommends that Congress "consider expanding the safety valve ... to include certain offenders who receive two, or perhaps three, criminal history points under the guidelines."33
[T]he 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, 18 U.SC. 3553(f)(2).34
[T]he offense did not result in death or serious bodily injury to any person, 18 U.S.C. § 3553(f)(3).35
The safety valve has two disqualifications designed to reserve its benefits to the non-violentnonviolent. The weapon or threat of -of-violence disqualification turns upon the defendant's conduct or the conduct of those he "aided or abetted, counseled, commanded, induced, procured, or willfully caused."3638 It is not triggered by the conduct of a co-conspirator, unless the defendant aided, abetted, counselled ... or counselled the co-conspirator's violence or possession.3739 Disqualifying firearm possession may be either actual or constructive.3840 Constructive possession is the dominion or control over a firearm or the place where one is located.3941 Disqualification requires the threat of violence or possession of a firearm "in connection with the offense," sometimes characterized as "active possession."42."40 In many instances, possession of a firearm in a location where drugs are stored or transported, or where transactions occur, will be enough to support an inference of possession in connection with the drug offense of conviction.4143 "[E]ven a single intimidating confrontation [is] enough to constitute a credible threat" and is consequently safety valve disqualifying.42
The Sentencing Guidelines define "serious bodily injury" for purposes of Section 3553(f)(3) as an "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation."4346 On its face, the definition would include serious bodily injuries, such as hospitalization, suffered by the defendant as a result of the offense.44 Unlike the gun and violence disqualification in Section 3553(f)(2), the serious injury disqualification in Section 3553(f)(3) may be triggered by the conduct of a co-conspirator.45
Moreover, a defendant is more likely to be disqualified under Section 3553(f)(3) if a fellow conspirator seriously injures a victim than would be the case under Section 3553(f)(2) if the conspirator merely carries a firearm.48
Only Single or Low-Level Offenders[T]he 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, 18 U.S.C. § 3553(f)(4)(emphasis added).4649
The defendant must also establish that he or she was not "an organizer, leader, manager, or supervisor of others in the offense."4750 The term "supervisor"supervisor is construed broadly and encompasses anyone who exercises control or authority of another during the commission of the offense.4851 The Sentencing Guidelines disqualify anyone who receives a guideline level increase for their aggravated role in the offense.4952 Thus, by implication, it does not require a defendant to have received a guideline increase based on his minimal or minor participation in a group offense, nor does it disqualify a defendant who acted alone.50
[N]ot 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, 18 U.S.C. § 3553(f)(5).51
TheAt one time the most heavily litigatedcontested safety valve criterionprerequisite, Section 3553(f)(5) requires full disclosure on the part of the defendant. As in the case of the other prerequisites, the defendant here bears the burden of establishing his qualification for safety valve relief.55 The requirement extends not only to information concerning the crimescrime of conviction, but also to information concerning other crimes that "were part of the same course of conduct or of a common scheme or plan," including uncharged related conduct.5256
Neither §Section 3553(f) nor the Sentencing Guidelines explain what form the defendants' full disclosure must take. At least one court has held that under rare circumstances disclosure through the defendant's testimony at trial may suffice.5357 Most often the defendant provides the information during an interview with prosecutors or by a proffer. The defendant must disclose the information to the prosecutor, however. Disclosure to the probation officer during preparation of the presentence report is not sufficient.5458 Moreover, a defendant does not necessarily qualify for relief merely because he has proffered a statement and invited the prosecution to identify any additional information it seeks; for "the government is under no obligation to solicit information from a defendant."5559 The defendant must provide the government with all the relevant information in his possession.5660 And, he must do so "no later than the time of the sentencing hearing."5761 Information offered after the sentencing hearing does not qualify,5862 although information offered following appellate remand for resentencing and prior to the resentencing hearing may qualify.5963 On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety valuevalve, although they may undermine his credibility.60
Three provisions authorize federal courts to reduce a defendant's sentence on the motion of the government for substantial assistance: Rule 35(b) of the Federal Rules of Criminal Procedure, 18 U.S.C. § 3553(e), and Section 5K1.1 of the U.S. Sentencing Guidelines. Only Section 3553(e) and Rule 35(b) authorize sentences below otherwise applicable mandatory minimums. Unlike the safety valve, neither Section 3553(e) nor Rule 35(b) is limited to mandatory minimums established for controlled substance offenses.65The substantial assistance provision, 18 U.S.C. 64
Substantial Assistance
Background
whichthat established or increased a number of mandatory minimum sentencing provisions.6166 The section continues in its original form virtually unchanged:
(e) Limited Authority To Impose a Sentence Below a Statutory Minimum. - Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.62
The section passed between the date authorizing creation of the Sentencing Guidelines and the date they became effective. Rather than replicate the language of §Section 3553(e), the Guidelinesguidelines contain an overlapping section whichthat authorizes a sentencing court to depart from the minimum sentence called for by the Guidelines.63
As a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory minimum under the provisions of Section 3553(e) only if the government and the court agree.6469 The courts have acknowledged that due process or equal protection or other constitutional guarantees may provide a narrow exception. "Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant's race or religion."6570 A defendant is entitled to relief if the government's refusal constitutes a breach of its plea agreement.6671 A defendant is also "entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end."6772 Some courts have suggested that a defendant is entitled to relief if the prosecution refuses to move under circumstances that "shock the conscience of the court," or that demonstrate bad faith, or for reasons unrelated to substantial assistance.6873 A majority of the judges who answered the Sentencing Commission's survey agreed that relief under §Section 3553(e) should be available even in the absence of motion from the prosecutor.6974
Despite their similarities, §Section 3553(e) and U.S.S.G. §Section 5K1.1 are not the same. A motion under §Section 3553(e) authorizes a sentence beneath the mandatory minimum, and a motion under U.S.S.G. §Section 5K1.1 authorizes a sentence beneath the applicable Sentencing Guideline range. Thus, a motion under §Section 5K1.1 will ordinarily not be construed as a motion under §Section 3553(e), in order to permit a court sentence below an otherwise applicable mandatory minimum sentencing requirement.70
Any sentence imposed below the statutory minimum by virtue of Section 3553(e) must be based on the extent of the defendant's assistance; it may not reflect considerations unrelated to such assistance.7176 It has been suggested, however, that a court may use the Section 5K1.1 factors for that determination, that is, "(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant's assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant's assistance," U.S.S.G. §5K1.1(a).72."77
The substantial assistance exception makes possible convictions that might otherwise be unattainable. Yet, it may also lead to "inverted sentencing," that is, a situation in which "the more serious the defendant's crimes, the lower the sentence—because the greater his wrongs, the more information and assistance he had to offer to a prosecutor"; while in contrast the exception is of no avail to the peripheral offender who can provide no substantial assistance.7378 Perhaps for this reason, most of the judges who responded to the Sentencing Commission survey agreed that a sentencing court should not be limited to assistance-related factors and should be allowed to use the generally permissible sentencing factors when calculating a sentence under Section 3553(e).74
Author Contact Information
In the before-and-after sentencing tale of avoiding a statutory mandatory minimum for substantial assistance, Rule 35(b) is the after. It is available only after sentencing. If the defendant's sentence is vacated on appeal, a Section 3553(e) motion rather than a Rule 35(b) motion is the appropriate vehicle for relief during resentencing.80 The rule features a two-pronged postsentence authorization for sentence reduction at the behest of the government. First, the government may always file a motion for sentence reduction including reduction below an otherwise applicable mandatory minimum if it does so within a year of sentencing.81 Second, the government may file a comparable motion a year after sentencing, but only under narrow circumstances that excuse the failure to make a more timely motion.82 Here, too, a motion by the government is a prerequisite to relief, and the government's decision to refuse to move can be overcome only where the government's silence is unconstitutionally grounded or based on some rationale not reasonably related to a legitimate government end.83
A district court, faced with a Rule 35(b) motion, must determine whether the defendant in fact rendered substantial assistance and if so what level of reduction, if any, is warranted. As part of its assessment, the court may, but is not required to, consider the general sentencing factors found in 18 U.S.C. § 3553(a).84 There is some authority for the proposition that the defendant has no right to notice and hearing following the submission of a Rule 35(b) motion.85
Moreover, Rule 35(b) does not authorize a court to reduce the amount of restitution previously ordered.86
Author Contact Information
Charles Doyle, Senior Specialist in American Public Law ([email address scrubbed], [phone number scrubbed])1. |
See generally |
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2. |
U.S.S.G. §5C1.2 (Safety Valve); U.S.S.G. §5K1.1(Substantial Assistance). | |||||||||||||||
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Most of the Federal Rules of Criminal Procedure are the work of delegated legislative authority rather than direct congressional action. 28 U.S.C. §§ 2071-2074. Congress, however, inserted the substantial assistance feature into Rule 35 in the 1984 Sentencing Reform Act and made it applicable to mandatory minimums in the 1986 Anti-Drug Abuse Act. P.L. 98-473, § 215(b), 98 Stat. 2015 (1984) and P.L. 99-570, § 1009, 100 Stat. 3207-8 (1986), respectively. |
Section 4713 of the National Defense Authorization Act for Fiscal Year 2010, found in the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, P.L. 111-84, 123 Stat. 2843 (2009). |
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United States Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, 355-56 (2011). |
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P.L. 115-391, § 402, 132 Stat. 5221 (2018). 9.
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18 U.S.C. § 3553(f). |
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18 U.S.C. § 3553(f) ("Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing...."). |
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United States v. Gamboa-Cardenas, 508 F.3d 491, 496-503 ( | ||||||||||||||||
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18 U.S.C. § 3553(f)(1) ("the defendant does not have | ||||||||||||||||
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Before the First Step Act amended 18 U.S.C. § 3553(f)(1), it read, "the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines." See also U.S.S.G. § 5C1.2(a)(1). |
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U.S. |
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22. |
U.S.S.G. §4A1.2(h). |
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U.S.S.G. §4A1.2(i). |
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24. |
U.S.S.G. §4A1.2(g). Sentences imposed by general and special courts martial are counted, id. |
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U.S.S.G. §§4A1.2(j); 4A1.2, cmt. n.6. |
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U.S.S.G. §4A1.2(c). |
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26.
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Id. at § 4A1.2(e) ("(1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period … (3) Any sentence not within the time periods specified above is not counted…"). 27.
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Id. ("… (2) Any other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted"). 28.
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Id. at § 4A1.2(d) ("Offenses committed prior to age eighteen. (1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 [criminal history] points under §4A1.1(a) for each such sentence. (2) In any other case, (A) add 2 points under §4A1.1(b) for each adult or juvenile sentence of confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense; (B) add 1 point under §4A1.1(c) for each adult or juvenile sentence imposed within five years of the defendant's commencement of the instant offense not covered in (A)."). See, e.g., United States v. Harris, 908 F.3d 1151, 1156 (8th Cir. 2018). 29.
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U.S.S.G. § 4A1.2(g). 30.
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Id. at § 4A1.2(h). See, e.g., United States v. Port, 532 F.3d 753, 754 (8th Cir. 2008). 31.
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U.S.S.G. § 4A1.2(i). United States v. White, 840 F.3d 550, 554 (8th Cir. 2016). 32.
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U.S.S.G. §§ 4A1.2(j), 4A1.2, cmt. n.6. 33.
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Id. at §4A1.2(c) ( |
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U.S.S.G. §§ 4A1.2(c)(1), (c)(2). The Sentencing Guidelines suggest a number of factors to assist in the determination of whether an unlisted offense may be consider "similar" for purposes of Section 4A1.2(c): "(i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct," U.S.S.G. §4A1.2, cmt. n.12(A). See, e.g |
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See also U.S.S.G. § 5C1.2(a)(2) ("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."). 37.
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Id. at § 5C1.2(3) ("the offense did not result in death or serious bodily injury to any person."). 38.
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Id. at § 5C1.2, cmt., n.4. |
Survey, Question 2. Safety Valve. Only 22% disagreed and another 12% were neutral, Id. |
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Id. Asked whether the criterion should be expanded to include offenders with 4, 5 or 6 criminal history points, only 22% agreed; 60% disagreed; and 18% were neutral, Id. |
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32. |
Hearing, Statement of Michael Nachmanoff, Federal Public Defender for E.D. Va. at 30-31 ("In fiscal year 2009, only 5,447 (35%) of defendants subject to a mandatory minimum qualified for the safety valve, while 10,085 (65%) did not. Yet, 83.2% of all drug trafficking offenses involved no weapon, 94.1% of drug trafficking defendants played no aggravated role or a mitigated role, 51.4% had zero to one criminal history points, and another 11.7% had two to three criminal history points. By requiring no more than one criminal history point, the safety valve excludes many offenders who were not involved in any violence and whose role in the offense was not serious. The safety valve does not distinguish between high- and low-level offenders based on role in the offense, but instead distinguishes among low-level offenders who differ little from each other, that is, by one criminal history point"); Statement of Jay Rorty, American Civil Liberties Union at 4. |
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33. |
United States Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, 355 (2011). |
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34. |
See also, U.S.S.G. §5C1.2(a)(2). |
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35. |
See also, U.S.S.G. §5C1.2(3). |
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36. |
U.S.S.G. §5C1.2, cmt., n.4. |
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United States v. Denis, 560 F.3d 872, 873 ( |
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United States v. Stewart, 306 F.3d 295, 326 ( |
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18 U.S.C. § 3553(f)(2). United States v. | ||||||||||||||||
41. |
United States v. Carillo-Ayala, 713 F.3d at 92; United States v. Jackson, 552 F.3d 908, 910 (8th Cir. 2009); United States v. Stark, 499 F.3d 72, 80 (1st Cir. 2007); United States v. Stewart, 306 F.3d 295, 327 (6th Cir. 2002). |
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42. |
United States v. Ortiz, 775 F.3d 964, 969 (7th Cir. 2015). |
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43. |
U.S.S.G. §5c1.2, cmt. n.2; §1B1.1, cmt. n.1(L). |
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44. | Hargrove, 911 F.3d at 1330 (internal citations omitted) (emphasis of the court) ("In sum, our cases teach that a firearm is used 'in connection with an offense' when it facilitates or has the 'potential to facilitate' that offense. The focus of our inquiry is 'the defendant's own conduct for purposes of evaluating eligibility for the safety valve. And the kind of firearms possession that bars application of the safety valve is 'active possession whereby there is a close connection linking the individual defendant, the weapon, and the offense.' Lastly, in circumstances where the defendant's own conduct evinces actual possession of the firearm, we have recognized that active possession may be shown by evidence of '[that] firearm's proximity and potential to facilitate the offense.'"); Jackson, 552 F.3d at 910; United States v. Stark, 499 F.3d 72, 80 (1st Cir. 2007); Stewart, 306 F.3d at 327. Talavera v. United States, 842 F.3d 556, 559 (8th Cir. 2016); United States v. Ortiz, 775 F.3d 964, 969 (7th Cir. 2015). Hargrove, 911 F.3d at 1328-29. U.S.S.G. §5C1.2, cmt. n.2; §1B1.1, cmt. n.1(L). |
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18 U.S.C. § 3553(f)(4); see also United States v. |
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United States v. Gamboa, 701 F.3d 265, 267 ( |
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U.S.S.G. §5C1.2, cmt. n.5 ("'Organizer ... supervisor of others in the offense, as determined under the sentencing guidelines' as used in subsection (a)(4), means a defendant who receives an adjustment for an aggravating role under §3B1.1 (Aggravating Role)"). E.g., United States v. Doe, 778 F.3d 814, 826 (9th Cir. 2015); United States v. May, 748 F.3d 758, 760-61 (7th Cir. 2014); United States v. Bonilla-Filomeno, 579 F.3d 852, 858 (8th Cir. 2009).
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United States v. |
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United States v. DeLaTorre, 599 F.3d 1198, 1206 ( | ||||||||||||||||
United States v. Cervantes, 519 F.3d 1254, 1257 ( |
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United States v. Milkintas, 470 F.3d. 1339, 1345 ( |
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United States v. Rodriguez, 676 F.3d 183, 190-91 (D.C. Cir. 2012) ("The provision does not distinguish between defendants who provide the authorities only with truthful information and those who provide false information before finally telling the truth."); United States v. Wu, 668 F.3d 882, 888 ( |
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66.
18 U.S.C. § 3553(e); Fed. R. Crim. P. 35(b)(4) ("When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute."). |
Section 1007(a) of P.L. 99-570, 100 Stat. |
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In the only amendment to Section 3553(e), Section 4002(a)(8) of P.L. 107-273 (2002) changed the phrase "as minimum sentence" to "as a minimum sentence." |
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U.S.S.G. § 5K1.1: "Substantial Assistance to Authorities (Policy Statement). Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. "(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: "(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; "(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; "(3) the nature and extent of the defendant's assistance; "(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; "(5) the timeliness of the defendant's assistance." |
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Melendez v. United States, 518 U.S. 120, 125-26 (1996) ("We believe that §3553(e) requires a government motion requesting or authorizing the district court to impose a sentence below a level established by statute as a minimum sentence before the court may impose such a sentence"); |
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Wade v. United States, 504 U.S. 181, 186 (1992); United States v. Gomez, 705 F.3d 68, 79 (2013). |
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United States v. Motley, 587 F.3d 1153, 1159 (D.C. Cir. 2009); United States v. Smith, 574 F.3d 521, 525 ( |
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Wade | ||||||||||||||||
United States v. Freemont, 513 F.3d 884, 889 ( |
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Survey, Question 15. Substantial Assistance. Only 35% of the respondents disagreed with the statement that "Congress should amend 18 USC §3553(e) to authorize judges to sentence a defendant below the applicable statutory mandatory minimum to reflect a defendant's substantial assistance, even if the government does not make a motion," Id. |
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Melendez v. United States, 518 U.S. 120, 126 (1996); United States v. Lee, 725 F.3d 1159, 1167-168 ( |
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United States v. Spinks, 770 F.3d 285, 287 ( |
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United States v. Gabbard, 586 F.3d 1046, 1051 ( |
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Hearing, Testimony of Jeffrey B. Steinback on behalf of the Practitioner's Advisory Group at 8, quoting United States v. Brigham, 977 F.2d 317, 318 ( |
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Survey, Question 15. Substantial Assistance. Only 24% of the respondents disagreed with the statement that "In determining the extent of a reduction below the statutory mandatory minimum under 18 USC §3553(e) ... the court's consideration should not be limited to the nature of the defendant's substantial assistance but also should include consideration of the factors at 18 USC §3553(a)," Id. |
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80. |
United States v. Tidwell, 827 F.3d 761, 762 n.2 (8th Cir. 2016). |
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81. |
Fed. R. Crim. P. 35(b)(1), (4). |
82. | Id. at 35(b)(2), (4) ("Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. … (4) When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute."). A court may not grant the government's motion, filed more than a year after sentencing, unless the case falls within one of three narrow and narrowly construed exceptions noted above. United States v. Baker, 769 F.3d 1196, 1201-202 (10th Cir. 2014).||||||||||||||
83. |
United States v. Scarpa, 861 F.3d 59, 67-8 (2d Cir. 2017); cf. United States v. Marks, 768 F.3d 1215, 1217-18 (8th Cir. 2014). |
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84. |
United States v. Katsman, 905 F.3d 672, 675 (2d Cir. 2018); United States v. McMahan, 872 F.3d 717, 718 (5th Cir. 2017) (internal citations omitted) ("The government is under no obligation to file a Rule 35(b) motion, and if it does, 'the sentencing court is not bound by the government's recommendation on whether or how much to depart but must exercise its independent discretion.'"); United States v. Concha, 861 F.3d 116, 120 (4th Cir. 2017) (internal citations omitted) (emphasis of the court) ("Regarding departures under Rule 35(b), this court has explained that, when making the threshold decision of whether to grant a departure the district court may consider only factors related to the defendant's assistance, but that the court may take other factors into account when determining the extent of the departure."); United States v. Lightfoot, 724 F.3d 593, 597 (5th Cir. 2013) ("Congress has not required district courts to consider that § 3553(a) factors when reducing a sentence under Rule 35(b)."). |
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85. |
McMahan, 872 F.3d at 720 (refusing to recognize such a right with the observation that "In fact, no other circuit besides the Second Circuit [in United States v. Gangi, 45 F.3d 28 (2d Cir. 1995)] has found that [U.S.S.G.] § 5K1.1 compels a reading of Rule 35(b) to require a right to be heard."). |
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86. |
United States v. Puentes, 803 F.3d 597, 599 (11th Cir. 2015). |