See generally U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (2011); U.S. Sentencing Commission, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (July 2017); CRS Report RL32040, Federal Mandatory Minimum Sentencing Statutes, by Charles Doyle; Nathan Greenblatt, How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, 36 AmAM. J. CrimCRIM. L. 1, 27-28 (2008) ("“[P]rosecutors have power to offer plea deals, reduce charges, limit introduction of evidence, and decide whether to appeal judges'’ trial management decisions and other orders. Each of these powers gives prosecutors the opportunity to allow a defendant to avoid a mandatory minimum sentence.").

”). 2 U.S. Sentencing Commission, Quick Facts: Mandatory Minimum Penalties (May 2018) ("Drug trafficking offenses accounted for … 67.8% of the offenses carrying a mandatory minimum penalty …"2021) (“Of all cases carrying a mandatory minimum penalty: 75.1% were drug trafficking; . . .); see also U.S. Sentencing Commission, Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System (Oct. 2017).

3 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 StatSTAT. 2015 (1984) and P.L. 99-570, § 1009, 100 StatSTAT. 3207-8 (1986), respectively.

4 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 StatSTAT. 2843 (2009). 5. 2843 (2009).

U.S. Sentencing Commission, Results of Survey of United States District Judges January 2010 through March 2010: Question 2. Safety Valve (June 2010) (Survey), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/surveys/20100608_Judge_Survey.pdf.

. 6 U.S. Sentencing Commission, Public Hearing Agenda Thursday, May 28, 2010 (Hearing), http://www.ussc.gov/AGENDA/20100527/Agenda.htm.

. 7 United States Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, 355-56 (2011).

8 P.L. 115-391, § 402, 132 StatSTAT. 5221 (2018). Congressional Research Service 1 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions Safety Valve Background Low-level drug offenders can escape some of the otherwise applicable mandatory minimum sentencing if they qualify for the safety valve.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.10 The Safety Valve extends to qualified offenders convicted of violations of the drug trafficking, simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export acts.11 It does not extend to the mandatory minimum sentences that attend some of the other controlled substance offenses, even those closely related to the covered offenses. For instance, it does not cover convictions under the statute that proscribes drug trafficking near schools, playgrounds, or public housing facilities and that sets the penalties for violation at twice those set for simple drug trafficking.12 In addition, until the First Step Act, safety valve relief did not reach those convicted under the Maritime Drug Law Enforcement Act (MDLEA), even though the MDLEA proscribes conduct closely related to the smuggling and trafficking activities 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.14 Subsequent lower appellate courts, however, have held that Alleyne does not require a jury verdict or application of the reasonable doubt standard.15 Thus, for the convictions to which the safety valve applies, the defendant must convince the sentencing court by a preponderance of 9 18 U.S.C. § 3553(f). 10 H.R. REP. NO. 103-460, at 4 (1994); United States v. Barron, 940 F.3d 903, 913 (6th Cir. 2019); United States v. . 5221 (2018).

18 U.S.C. § 3553(f).

H.R. Rep. No. 103-460, at 4 (1994); United States v. Hargrove, 911 F.3d 1306, 1326 (10th Cir. 2019); United States v. Brooks, 722 F.3d 1105, 1108 (8th Cir. 2013); United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013).

11 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....").

”). 12 21 U.S.C. § 860. United States v. De La Cruz, 998 F.3d 508, 519 (1st Cir. 2021); United States v. Anchundia-Espionza, 897 F.3d 629, 633-34 (5th Cir. 2018); United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015); United States v. Koons, 300 F.3d 985, 994 (8th Cir. 2002). One Sentencing Commission witness indicated that "“in districts where substantial portions of towns and cities fall within protected zones, prosecutors can, and some do, charge violations of 21 U.S.C. §860 for the purpose of preventing safety valve relief for offenders who would otherwise qualify,"” Hearings, Statement of Michael Nachmanoff, Federal Public Defender for E.D. Va. at 31.

13 United States v. Gamboa-Cardenas, 508 F.3d 491, 496-503 (9th Cir. 2007); but see United States v. Mosquera-Murrillo, 902 F.3d 285. 295-96 (D.C. Cir. 2018) (suggesting the coverage of MDLEA may have been an open question prior to the First Step Act). The First Step Act, P.L, 115-391, eliminated any doubt when it placed MDLEA under the safety-valve umbrella, 18 U.S.C. § 3553(f).

14 Alleyne v. United States, 570 U.S. 99, 103 (2013).

15 United States v. Fincher, 929 F.3d 501, 504 (7th Cir. 2019); United States v. Leanos, 827 F.3d 1167, 1169-70 (8th Cir. 2016); see also United States v. King, 773 F.3d 48, 55 (5th Cir. 2014); United States v. Lizarraga-Carrizales, 757 F.3d 995, 997-99 (9th Cir. 2012) (citing United States v. Harakaly, 734 F.3d 88, 97-8 (1st Cir. 2013)).

Hargrove, 911 F.3d at 1326-27; United States v. Bolton, 858 F.3d 905, 913 (4th Cir. 2017); United States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015); United States v. Schmitt, 765 F.3d 841, 842 (8th Cir. 2014 Congressional Research Service 2 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions the evidence that he satisfies each of the safety valve’s five disqualifications.16 He may not have a disqualifying criminal history point total.17 He may not have used violence or a dangerous weapon in connection with the offense.18 He may not have been an organizer or leader of the drug enterprise.19 He must have provided the government with all the information and evidence at his disposal.20 Finally, the offense may not have resulted in serious injury or death.21 Disqualifying Criminal History Point Total [T]he 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.22 The criminal history point disqualification refers to the defendant’s prior criminal record. Section 3553(f)(1) disqualifies only those who have a prior 2-point violent offense, more than 4 criminal history points and a prior 3-point offense.23 The Sentencing Guidelines assign criminal history points based on a defendant’s past criminal record. Prior sentences of imprisonment or juvenile detention of less than 60 days are assigned a single criminal history point.24 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 16 United States v. Gonzalez-Carmona, 35 F.4th 636, 642 (8th Cir. 2022); United States v. Maupin, 3 F.4th 1009, 1016 (8th Cir. 2021); United States v. Bolton, 858 F.3d 905, 913 (4th Cir. 2017); United States v. Ramirez, 783 F.3d 687, 692 (7th Cir. 2015); Harakaly, 734 F.3d at 98; United States v. Towns, 718 F.3d 404, 412 (5th Cir. 2013); United States v. Rodriguez, 676 F.3d 183, 191 (D.C. Cir. 2012); United States v. Pena, 598 F.3d 289, 292 (6th Cir. 2010); United States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir. 2007).

17 18 U.S.C. § 3553(f)(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 Id. § 3553(f)(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.").

”). 19 Id. § 3553(f)(4) ("“the 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.").

”). 20 Id. § 3553(f)(5) ("“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, 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.").

”). 21 Id. § 3553(f)(3) ("“the offense did not result in death or serious bodily injury to any person.").

”). 22 18 U.S.C. § 3553(f)(1). 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). 23 United States v. Lopez, 998 F.3d 431, 437 (9th Cir. 2021) (“Thus, a defendant must meet the criteria in subsections (A) (more than four criminal-history points), (B) (a prior two-point violent offense) and (C) (a prior two-point violent offense) to be barred from the safety-valve relief by § 3553(f)(1). This means one of (A), (B) or (C) is not enough. A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief”) (emphasis of the court). 245C1.2(a)(1).

U.S.C.G. §§ 4A1.1(c); 4A1.2; United States v. Brooks, 722 F.3d 1102, 1108 (8th Cir. 2013) (the calculation includes "“any sentence imposed for conduct not part of the instant offense").

”). Congressional Research Service 3 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release.25 Prior sentences of imprisonment for more than a year and a month are assigned three criminal history points.26 A number of convictions do not count, including the following:  Stale convictions  15-year-old, three-point convictions,27  10-year-old, one- or two-point convictions,28 or  5-year-old, one- or two-point juvenile adjudications;29  Summary court-martial convictions;30  Foreign convictions;31  Tribal convictions;32  Expunged, reversed, vacated, or invalidated convictions;33 and  Certain petty offenses or minor misdemeanors:  Hunting and fishing violations, juvenile truancy, and the like, regardless of the sentence imposed.34  Gambling, prostitution, and the like if the offender was sentenced no more severely than to imprisonment for 30 days or less or to probation for less than a year.35 25 U.S.S.G. §§ 4A1.1 (b), (d); 4A1.2(d). United States v. Yepez, 704 F.3d 1087, 1089-90 (9th Cir. 2012) (a federal crime committed while the offender is on state probation is no less so because a state court subsequently terminates the probationary term as of the time it was originally ordered (i.e., before the federal crime was committed).).

Id. at § 4A1.1(a).

26 Id. at § 4A1.1(a). 27 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…").

”). 28 Id. ("“… (2) Any other prior sentence that was imposed within ten years of the defendant'’s commencement of the instant offense is counted").

”). 29 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).

30 U.S.S.G. § 4A1.2(g).

31 Id. at § 4A1.2(h). See, e.g., United States v. Port, 532 F.3d 753, 754 (8th Cir. 2008).

32 U.S.S.G. § 4A1.2(i). United States v. White, 840 F.3d 550, 554 (8th Cir. 2016).

33 U.S.S.G. §§ 4A1.2(j), 4A1.2, cmt. n.6.

34 Id. at § 4A1.2(c)2)( (The full list includes "“fish and game violations, hitchhiking, juvenile status offenses and truancy, local ordinance violations (except those violations that are also violations under state criminal law), loitering, minor traffic infractions (e.g., speeding), public intoxication, [and] vagrancy,").

Id. (The full list consists of "careless or reckless driving, contempt of court, disorderly conduct or disturbing the peace,”). 35 Id. at § 4A1.2(c)(1) (“Sentences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of Congressional Research Service 4 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions  Similar offenses to those listed “by whatever name they are known.”36 Only the Nonviolent [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).37 [T]he offense did not result in death or serious bodily injury to any person, 18 U.S.C. § 3553(f)(3).38 The safety valve has two disqualifications designed to reserve its benefits to the nonviolent. The weapon or threat-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.”39 It is not triggered by the conduct of a co-conspirator, unless the defendant aided, abetted, or imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense: careless or reckless driving[;] contempt of court[;] disorderly conduct or disturbing the peace[;] driving without a license or with a revoked or suspended license,[;] false information to a police officer, gambling,[;] gambling[;] hindering or failure to obey a police officer,officer[;] insufficient funds check[;], leaving the scene of an accident, non-support, prostitution, resisting arrest, [[;] non-support[;] prostitution[;] resisting arrest[; and] trespassing,"”). E.g., United States v. Vazquez, 719 F.3d 1086, 1092-93 (9th Cir. 2013) (a suspended sentence following conviction for driving with a suspended license does not count when the defendant is not sentenced to probation and the applicable state law does not consider probation an implicit component of a suspended sentence).

36 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"“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., United States v. .g., United States v. Bravo, 26 F.4th 387, 392-96 (7th Cir. 2022) (holding that state streetgang contact offense is similar to disorderly conduct); United States v. James, 952 F.3d 429, 438-40 (3d Cir. 2020) (applying the five-factor analysis and concluding that state loitering and prowling at night was not similar to loitering); United States v. Hagen, 911 F.3d 891, 895-96 (7th Cir. 2019) (applying the five-factor analysis and concluding that convictions of a guardian for allowing child truancy should not have counted in the calculation of the defendant'’s criminal history score); United States v. Kohl, 910 F.3d 978, 981 (7th Cir. 2018) (state law prohibiting operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood is similar to driving under the influence of an intoxicant); United States v. Ruacho, 746 F.3d 850, 854-55 (8th Cir. 2014) (petty-misdemeanor conviction for possession of a small amount of marijuana is not sufficiently similar to public intoxication or disorderly conduct); United States v. Foote, 705 F.3d 305, 307-308 (8th Cir. 2013) (possession of small amount of marijuana punishable by a small fine is not a similar offense to a similarly fined traffic offense); United States v. Burge, 683 F.3d 829, (7th Cir. 2012) (abandonment of a llama in violation of the state wildlife code is sufficiently similar to fish and game violations); United States v. DeJesus-Concepcion, 607 F.3d 303, 305-306 (2d Cir. 2010) (third degree unauthorized use of a vehicle is not a similar offense to careless or reckless driving); United States v. Calderon Espinosa, 569 F.3d 1005, 1008 (9th Cir. 2009) (offense of loitering for drug activities is loitering "“by whatever name it is known"”); United States v. Russell, 564 F.3d 200, 206 (3d Cir. 2009) (misdemeanor marijuana possession is not similar to public intoxication); United States v. Pando, 545 F.3d 682, 684 (8th Cir. 2008) (driving while intoxicated is not similar to careless or reckless driving, citing U.S.S.G. §4A1.2, cmt. n.5); United States v. McKenzie, 539 F.3d 15, 17-18 (1st Cir. 2008) (shoplifting is not similar to "“insufficient funds check"”); United States v. Garrett, 528 F.3d 525, 527-29 (7th Cir. 2008) (bail jumping is similar to contempt of court); United States v. Sanchez-Cortez, 530 F.3d 357, 359-60 (5th Cir. 2008) (military AWOL offense was not similar to truancy); United States v. Cole, 418 F.3d 592, 599-600 (6th Cir. 2005) (underage (over 18 but under 21) possession of alcohol was similar to a juvenile status offense).

37 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.").

”). 38 Id. at § 5C1.2(a)(3) ("“the offense did not result in death or serious bodily injury to any person.").

”). 39 Id. at § 5C1.2, cmt., n.4.

Congressional Research Service 5 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions counselled the co-conspirator’s violence or possession.40 Disqualifying firearm possession must be “in connection with the offense” that carries a mandatory minimum, i.e., to have “the potential of facilitating the . . . offense.”41 Possession may be either actual or constructive.42 Constructive possession is the dominion or control over a firearm or the place where one is located.43 Disqualification requires the threat of violence or possession of a firearm “in connection with the offense,” sometimes characterized as “active possession.”44 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.45 “[E]ven a single intimidating confrontation [is] enough to constitute a credible threat” and is consequently safety valve disqualifying.46 Nevertheless, “not all defendants who receive the [firearm] enhancement under [U.S.S.G.] § 2D1.1(b)(1) are precluded from relief under the safety 40 United States v. Carrasquillo, 4 F.4th 1265, 1273 n.1 (11th Cir. 2021); United States v. Denis, 560 F.3d 872, 873 (8th Cir. 2009); United States v. Figueroa-Encarnacion, 343 F.3d 23, 34 (1st Cir. 2003); United States v. Sarabia, 297 F.3d 983, 989 (10th Cir. 2002); but see United States v. Ramirez, 783 F.3d 687, 695 (7th Cir. 2015) ("“[T]he scope of the '‘no firearms condition . . . [is] an open question. . . . [and] remains unsettled in this circuit. Given the lack of guiding circuit precedent, the district court cannot be faulted for failing to raise and apply the safety valve sua sponte [in a case in which a co-conspirator rather than the defendant was armed with a firearm at the time of the offense].").

”). 41 18 U.S.C. § 3553(f)(2); United States v. Moreno-Membache, 995 F.3d 249, 157 (D.C. Cir. 2021). 42 United States v. Jackson, 552 F.3d 908, 909-10 (8th Cir. 2009) (citing in accord United States v. Matias, 465 F.3d 169, 173-74 (5th Cir. 2006); United States v. Herrera, 446 F.3d 283, 287 (2d Cir. 2006); United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005); United States v. Gomez, 431 F.3d 818, 820-22 (D.C. Cir. 2005); United States v. Stewart, 306 F.3d 295, 327 n.19 (6th Cir. 2002), but noting in apparent disagreement United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1186-187 (10th Cir. 2004)).

43 United States v. Stewart, 306 F.3d 295, 326 (6th Cir. 2002).

44 18 U.S.C. § 3553(f)(2). United States v. Hargrove, 911 F.3d 1306, 1329 (10th Cir. 2019) (internal citations omitted) ("(“As for '‘active possession'’ of a firearm—which, as noted, entails a '‘close connection linking the individual defendant, the weapon and the offense'’—we reasoned that this requirement prevents mere constructive possession (without more) from satisfying the safety-valve provisions, though it might satisfy … [W]e acknowledged that, when a defendant '‘did not argue that the gun was not actually his nor that it was merely constructively possessed, a gun'’s proximity and potential to be used in connection with the offense'’ may well be sufficient to bar safety-valve relief."”); United States v. Leanos, 827 F.3d 1167, 1170 (8th Cir. 2016) ("“We have held that a defendant possesses a firearm in connection with a drug offense if the firearm has the potential to facilitate the offense. Moreover, constructive possession of a firearm is sufficient to render a defendant ineligible for the safety valve [as] … when a firearm is located '‘where it could be used to protect drugs … For example, where a firearm was located five feet away from a drug stack in a defendant'’s home—even though the defendant asserted that he never touched the firearm and that it did not belong to him…"”); see also, United States v. Bolton, 858 F.3d 905, 914 (4th Cir. 2017) ("“[A]t least five of our sister circuits have held that a weapon enhancement pursuant to § 2D1.1(b)(1) does not foreclose a safety valve reduction despite § 5C1.2(a)(2)'s ’s requirement that defendant did not possess a firearm in connection with the offense."”) (citing cases from the First, Sixth, Ninth, Tenth and Eleventh circuits).

45 Carrasquillo, 4 F.4th at 1273 (‘“[T]he presence of a gun within a defendant’s domain and control during a drug trafficking crime ordinarily will suffice to show ... that the defendant possessed the firearm in connection with the offense.’” (quoting United States v. Carillo-Avala, 713 F.3d 82, 96 (11th Cir. 2013))); United States v. Patrone, 985 F.3d 81, 87 (1st Cir. 2021) (“[A] defendant who has constructively possessed a firearm in connection with a drug trafficking offense is ineligible for the safety valve provisions set forth in 18 U.S.C. § 3553(f).’” (quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005))); 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.

46 Talavera v. United States, 842 F.3d 556, 559 (8th Cir. 2016); United States v. Ortiz, 775 F.3d 964, 969 (7th Cir. 2015). Congressional Research Service 6 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions valve. A defendant who receives a firearm enhancement under § 2D1.1(b)(1) can still secure safety valve relief if he shows that it is more likely than not that the possession of the firearm was not connected with the offense.”47 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.”48 On its face, the definition would include serious bodily injuries, such as hospitalization, suffered by the defendant as a result of the offense.49 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.50 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). Under the corresponding sentencing guideline, a defendant is an “organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines” if he “receives an adjustment for an aggravated role under [U.S.S.G.] §[]3B1.1 (Aggravating Role).”51 Such an adjustment is warranted if the government establishes that the defendant exercised control over one of the other participants in the offense or the organization of the criminal activity.52 Conversely, to avoid disqualification under § 3553(f)(4) a defendant must establish that he is not “an organizer, leader, manager, or supervisor of others in the offense.”53 “Although the evidence of [a defendant’s] general coordination of criminal activities is not itself enough to show that he was an ‘organizer,’ [for U.S.S.G. § 3B1.1 purposes] the entire record of evidence sufficies to 47 United States v. Thomas, 32 F.4th 1073, 1079 (11th Cir. 2022) (internal citations omitted). 482015).

Hargrove, 911 F.3d at 1328-29.

U.S.S.G. §5C1.2, cmt. n.2; §1B1.1, cmt. n.1(L).

M). 49 The Eleventh Circuit in a nonbinding opinion seems to have come to the same conclusion. United States v. Valencia-Vergara, 264 Fed. Appx. 832, 836 (11th Cir. 2008) ("“The district court did not clearly err in denying Valencia-Vergara a reduction under the safety valve provisions. The evidence shows that both he and one of his codefendants sustained second and third degree burns on their bodies, for which they had to be treated at a hospital.").

”). 50 Compare 18 U.S.C. § 3553(f)(3) ("“the offense did not result in death or serious bodily injury"”) with id.§ 3553(f)(2) (emphasis added) ("“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),"”). See United States v. Grimmett, 150 F.3d 958, 960 (8th Cir. 1998) (reversing on other grounds a district court decision that included that denial of safety valve relief "“because of Kerns'’ murder by conspirators").

See also”). 51 U.S.S.G. § 5C1.2(a)(4) ("“the 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 21 U.S.C. 848."”); U.S.S.G. § 5C1.2 cmt. n.6 ("“As a practical matter, it should not be necessary to apply this prong of subsection (a)(4) because (i) this [safety valve] section does not apply to a conviction under 21 U.S.C. § 848, and (ii) any defendant who '‘engaged in a continuing criminal enterprise'’ but is convicted of an offense to which this section applies will be an '‘organizer, leader, manager, or supervisor of others in the offense.'").

18 U.S.C. § 3553(f)(4); see also United States v. Lynch, 903 F.3d 1061, 1083-84 (9th Cir. 2018) (holding that the district court may not find the leader of a drug trafficking organization qualified for the safety valve because the organization dealt in marijuana).

United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012).

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).

U.S.S.G. § 3B1.2 (Mitigating Role).

See also U.S.S.G. § 5C1.2(a)(5) ("’”). 52 United States v. Maupin, 3 F.4th 1009, 1016 (8th Cir. 2021); United States v. Hernández, 964 F.3d 95, 102 (1st Cir. 2020). 53 18 U.S.C. § 3553(f)(4). Congressional Research Service 7 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions show that the District Court did not err in finding that he was [for purposes of dafety valve disqualification].” 54 Tell All [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).55 At one time the most heavily contested safety valve prerequisite, 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.56 The requirement extends not only to information concerning the crime of conviction,57 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.58 The court, not the government, must determine whether the defendant has carried his burden,59 based on specifics in the record, rather than mere speculation or conjecture.60 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.61 Most often the defendant provides the information during an interview with prosecutors or by a proffer. The defendant must disclose the 54 Hernández, 964 F.3d at 102. 55 See also U.S.S.G. § 5C1.2(a)(5) (“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, 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.").

”). 56 United States v. Gonzalez-Carmona, 35 F.4th 636, 642 (8th Cir. 2022); United States v. Gardner, 32 F.4th 504, 526 (6th Cir. 2022); United States v. Thomas, 32 F.4th 1073, 1079 (11th Cir. 2022); United States v. Martinez, 9 F.4th 24, 36 (1st Cir. 2021); United States v. Lopez, 998 F.3d 431, 433 n.1 (9th Cir. 2021); United States v. Cruz-Romero, 848 F.3d 399, 402 (5th Cir. 2017); United States v. Ortiz, 775 F.3d 964, 967 (7th Cir. 2015); United States v. Claxton, 766 F.3d 280, 306 (3d Cir. 2014).

57 Gardner, 32 F.4th at 527 (“To qualify for safety valve relief, Kolarich needed to admit, at a minimum, the conduct comprising the elements of the offense”) (internal citations omitted). 58 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5); Martinez, 9 F.4th at 28; United States v. Ceballos, 605 F.3d 468, 472 (8th Cir. 2010McVay, 996 F.3d 845, 848 (8th Cir. 2021); United States v. Altamirano-Quintero, 511 F.3d 1087, 1096 (10th Cir. 2007) (citingLima-Rivero, 971 F.3d 518, 521 (5th Cir. 2020); United States v. Montes, 381 F.3d 631, 635-36 (7th Cir. 2004); United States v. Johnson, 375 F.3d 1300, 1302-303 (11th Cir. 2004);Altamirano-Quintero, 511 F.3d 1087, 1096 (10th Cir. 2007). 59 Martinez, 9 F.4th at 37 (“Looking to the record as a whole, a district court must make its own ‘independent determination as to whether [a defendant] has satisfied’ her safety-valve disclosure obligation.” (quoting United States v. White, 119 F.3d 70, 73 (1st Cir. 1997))); Lima-Rivero, 971 F.3d at 521 (“The question of whether Lima-Rivero had satisfied §3553(f)(5) is one for the district court. It is not bound by the government’s determination of whether a defendant failed to provide truthful information.”). 60 Id. at 521-22. 61v. Cruz, 156 F.3d 366, 371 (2d Cir. 1998); United States v. Miller, 151 F.3d 957, 958 (9th Cir. 1998); United States v. Sabir, 117 F.3d 750, 753 (3d Cir. 1997).

United States v. DeLaTorre, 599 F.3d 1198, 1206 (10th Cir. 2010); but see United States v. Diaz, 736 F.3d 1143, 1152 (8th Cir. 2013) ("“Diaz did not separately proffer his knowledge to the government and relies solely on this trial testimony to support safety valve relief. We do not address the appropriateness of such an unusual procedure"”); United States v. Delgrosso, 852 F.3d 821, 830 (8th Cir. 2017) (affirming the district court holding that the defendant'’s trial testimony and his letter to the IRS purporting to "“truthfully provide all [the] information he had"” did not suffice to satisfy the requirements of 18 U.S.C. § 3553(f)(5)).

United States v. Cervantes, 519 F.3d 1254, 1257 (10th Cir. 2008) (" Congressional Research Service 8 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions information to the prosecutor, however. Disclosure to the probation officer during preparation of the presentence report is not sufficient.62 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.”63 The defendant must provide the government with all the relevant information in his possession.64 And, he must do so “no later than the time of the sentencing hearing.”65 Information offered after the sentencing hearing does not qualify,66 although information offered following appellate remand for resentencing and prior to the resentencing hearing may qualify.67 On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety valve, although they may undermine his credibility.68 Substantial Assistance Background 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 62 United States v. Cervantes, 519 F.3d 1254, 1257 (10th Cir. 2008) (“In making this determination, we join the First, Second, Fourth, Fifth, Seventh, and Ninth Circuits in ruling that a probation officer is not the government for purposes of the safety valve."”) (citing United States v. Wood, 378 F.3d 342, 351 (4th Cir. 2004); Emezuo v. United States, 357 F.3d 703, 706 n.2 (7th Cir. 2004); United States v. Contreras, 136 F.3d 1245, 1246 (9th Cir. 1998); United States v. Jimenez Martinez, 83 F.3d 488, 495-66 (1st Cir. 1996); United States v. Rodriguez, 60 F.3d 193, 195-96 (5th Cir. 1995); and United States v. Smith, 174 F.3d 52, 56 (2d Cir. 1999)).

63 United States v. Milkintas, 470 F.3d. 1339, 1345 (11th Cir. 2006) (citing United States v. O'’Dell, 247 F.3d 655, 675 (6th Cir. 2001); United States v. Ortiz, 136 F.3d 882, 884 (2d Cir. 1997); United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996); United States v. Ivester, 75 F.3d 182, 185-86 (4th Cir. 1996)); see also Claxton, 766 F.3d at 306 ("(“The mere fact that the investigators did not ask the 'right'‘right’ questions for purposes of Claxton'’s safety valve claim did not relieve him of his burden under the safety valve provision.").

”). 64 United States v. Ortiz, 775 F.3d 964, 967-68 (7th Cir. 2014).

65 18 U.S.C. § 3553(f)(5). 66 Ortiz, 775 F.3d at 967-68. 67 18 U.S.C. § 3553(f)(5).

Ortiz, 775 F.3d at 967-68.

United States v. Figueroa-Labrada, 780 F3d 1294, 1300-303 (10th Cir. 2015).

68 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 (7th Cir. 2011) ("“Here, in contrast, the district court denied the reduction. It believed that Wu'’s credibility had been undermined by inconsistencies in his statements and his ultimate retraction."”); United States v. Padilla-Colon, 578 F.3d 23, 31-2 (1st Cir. 2009) ("“Inconsistencies between statements made during the proffer and statements made to the authorities on other occasions are not necessarily disqualifying. But the court may legitimately consider such inconsistencies in deciding on the truthfulness of the proffer."”); United States v. Mejia-Pimental, 477 F.3d 1100, 1108 (9th Cir. 2007) ("“The district court therefore erred, as a matter of law, in finding Mejia-Pimental ineligible for safety valve relief on the basis of the lies and delays that preceded his final proffer."”); United States v. Jeffers, 329 F.3d 94, 99-100 (2d Cir. 2003) ("“[A] sentencing court may not disqualify a defendant at the threshold from eligibility for safety valve relief based solely on his commission of perjury at trial, where the defendant otherwise fulfills the statutory criteria under 18 U.S.C. § 3553(f)(1)-(5). To do so would contradict the plain language of the statute and contravene the statutory deadline for full compliance with its criteria at the time of the commencement of the sentencing hearing. A court may, of course, consider the relevance of the prior perjury or other obstructive behavior in making a factual finding as to whether the defendant has made a complete and truthful proffer in compliance with 18 U.S.C. § 3553(f)(5).").

18 U.S.C. § 3553(e); Fed. R. Crim. P. 35(b)(4) ("”). Congressional Research Service 9 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions safety valve, neither section 3553(e) nor Rule 35(b) is limited to mandatory minimums established for controlled substance offenses.69 18 U.S.C. § 3553(e) The substantial assistance provision under 18 U.S.C. § 3553(e), passed with little fanfare in the twilight of the 99th Congress as part of the massive Anti-Drug Abuse Act of 1986, was legislation that established or increased a number of mandatory minimum sentencing provisions.70 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.71 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 guidelines contain a corresponding section that authorizes a sentencing court to depart from the minimum sentence called for by the guidelines, rather than the statutory mandatory minimum.72 “Upon the Motion of the Government” 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.73 69 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.").

”). 70 Section 1007(a) of P.L. 99-570, 100 Stat. 3207-7 (1986).

71 18 U.S.C. § 3553(e) (emphasis added). In the only amendment to Section 3553(e), Section 4002(a)(8) of P.L. 107-273273 (2002) changed the phrase "“as minimum sentence"” to "“as a minimum sentence."

” 72 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'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.” (Emphasis added). Note that § 3553(e) permits a sentence below the otherwise applicable statutory mandatory minimum while U.S.S.G. § 5K1.1 permits a sentence below the otherwise applicable sentencing guideline range. 73s assistance."

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"”); see also United States v. Trimm, 999 F.3d 119, 125 (2d Cir. 2021) (in the absence of an exception, the district court may neither order the government to file the necessary motion nor “deem” the government to have filed the necessary motion when it has not); United States v. M.M., 23 F.4th 216, 221 (3d Cir. 2021); United States v. ); see also United States v. Sealed Appellee, 887 F.3d 707, 709 (5th Cir. 2018); United States v. Melton, 861 F.3d 1320, 1329 (11th Cir. 2017).

Congressional Research Service 10 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions 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.”74 A defendant is entitled to relief if the government’s refusal constitutes a breach of its plea agreement.75 A defendant is also “entitled to relief if the prosecutor’s refusal to move was not rationally related to any legitimate Government end.”76 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.77 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.78 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), permitting a district court to impose a sentence below an otherwise applicable mandatory minimum sentencing requirement.79 “To Reflect a Defendant’s Substantial Assistance” 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 74 Wade v. United States, 504 U.S. 181, 186 (1992); Trimm, 999 F.3d at 125-26; Wade v. United States, 504 U.S. 181, 186 (1992); United States v. Gomez, 705 F.3d 68, 79 (2013). 75 Trimm, 999 F.3d at 126;79 (2013).

United States v. Motley, 587 F.3d 1153, 1159 (D.C. Cir. 2009); United States v. Smith, 574 F.3d 521, 525 (8th Cir. 2009); United States v. Doe, 445 F.3d 202, 207 (2d Cir. 2006); cf. United States v. Doe, 865 F.3d 1295, 1296 (10th Cir. 2017).

Wade, 504 at 186 76 Wade, 504 U.S. at 186; Trimm, 999 F.3d at 126; United States v. Zeaiter, 891 F.3d 1114, 1125 (8th Cir. 2018) (internal citation omitted) ("“A district court can review the government'’s decision not to file a substantial assistance motion only if a defendant has made a substantial threshold showing that the decision was based on an unconstitutional motive or was not reasonably related to any legitimate Government end."”); Sealed Appellee, 887 F.3d at 709.

77 United States v. Freemont, 513 F.3d 884, 889 (8th Cir. 2008) ("“The district court may review the government's ’s refusal to make a motion in limited circumstances. First, the district court may review the government'’s decision for an unconstitutional motive.... Second, a district court can compel a §3553(e) motion if the government acknowledges the defendant provided substantial assistance, but refuses to make a motion expressly because the defendant engaged in unrelated misconduct—a reason unrelated to the quality of the defendant'’s assistance.... Third, the district court may be able to compel a motion if the government acted in bad faith by refusing to make a motion"”); United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014) ("“[T]he Government'’s decision not to file a section 5K1.1 motion like any other prosecutorial decision is subject to constitutional limitations, plea agreements provide additional protection for defendants. The bargained-for promises are bolstered by an implied obligation of good faith and fair dealing. Where the government breaches a plea agreement, remand for specific performance of the agreement or withdrawal of the guilty plea may be warranted."”); United States v. Doe, 741 F.3d 359, 362-64 (2d Cir. 2013); but see United States v. Perez, 526 F.3d 1135, 1138 (8th Cir. 2008) (citing cases evidencing a split within the circuit over whether bad faith provides a sufficient based to compel a government motion); see also United States v. Fields, 763 F.3d 443, 454 (6th Cir. 2014) ("(“Indeed, unlike other circuits, we do not review for bad faith when the decision to file a motion vests within the sole discretion of the government.").

”). 78 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. 79 Id.

Melendez v. United States, 518 U.S. 120, 126 (1996); A.M., 927 F.3d at 722; United States v. Lee, 725 F.3d 1159, 1167-168 (9th Cir. 2013); United States v. Barnes, 730 F.3d 456, 457-58 (5th Cir. 2013).

Congressional Research Service 11 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions assistance.80 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.”81 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.82 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).83 Rule 35(b) 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.84 The rule features a two-pronged post-sentence authorization for sentence reduction at the behest of the government. First, the government may file a motion for sentence reduction, including reduction below an otherwise applicable mandatory minimum, if it does so within a year of sentencing.85 Second, the 80 United States v. Spinks, 770 F.3d 285, 287 (4th Cir. 2014); United States v. Burns, 577 F.3d 887, 894 (8th Cir. 2009) (en banc) ("“Where a court has authority to sentence below a statutory minimum only by virtue of a government motion under § 3553(e), the reduction below the statutory minimum must be based exclusively on assistance-related considerations."”); see also United States v. Spann, 682 F.3d 565, 566 (7th Cir. 2012); United States v. Winebarger, 664 F.3d 388, 392-93 (3d Cir. 2011); United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009).

81 United States v. M.M., 23 F.4th 216, 222 (3d Cir. 2021); United States v. Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009) (citing United States v. Richardson, 521 F.3d at 159) ("“According to the Second Circuit in Richardson, considering U.S.S.G. § 5K1.1'’s factors is appropriate in determining the extent of a departure below the statutory minimum pursuant to 18 U.S.C. § 3553(e)."”); but see United States v. Concha, 861 F.3d 116, 120 (4th Cir. 2017) ("A “A court acting under § 3553(e) to reduce a sentence below a statutory minimum must likewise consider only assistance-related factors when determining the extent of the departure.").

”). 82 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 (7th Cir. 1992); see also, Hearing, Written Statement of Cynthia Hujar Orr, President of the National Ass'’n of Criminal Defense Lawyers at 3 (defendants "“who have little or no information to provide the government, end up with far more severe sentences than leaders of conspiracies who run the operations and know the other participants.").

”); see also United States v. Díaz-Lugo, 963 F.3d 145, 153 (1st Cir. 2020) (“[W]hen a defendant’s cooperation, though earnest, leads only to a dry hole, a sentencing court does not abuse its discretion by failing to vary downward on account of that cooperation.”) (Commenting on the prosecution’s failure to file a motion under U.S.S.G. § 5K1.1). 83 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 ’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. 84 United States v. Ramirez-Figueredo, 33 F.4th 312, 319 (6th Cir. 2022) (“[A] Rule 35(b) motion may be made only after sentencing is complete, making it error for the district court to prematurely consider such a motion.”). 85 FED. R. CRIM Id.

United States v. Tidwell, 827 F.3d 761, 762 n.2 (8th Cir. 2016).

Fed. R. Crim. P. 35(b)(1), (4).

. P. 35(b)(1), (4). (“(1) Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. . . . (4) When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”). Congressional Research Service 12 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions 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.86 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.87 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.88 Nevertheless, there is some authority for the proposition that a defendant must be given a chance to respond to the specifics of the government’s motion.89 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.90 As part of its assessment, the court may consider the defendant’s assistance before sentencing, and may, but is not required to, consider the general sentencing factors found in 18 U.S.C. § 3553(a).91 86 Id. at 35(b)(2), (4) (“(2) 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).

”). 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. United States v. Tidwell, 827 F.3d 761, 762 n.2 (8th Cir. 2016). 87 FED. R. CRIM. P. 35(b)(2); United States v. Baker, 769 F.3d 1196, 1201-202 (10th Cir. 2014). 88 United States v. Claude, 16 F.4th 422, 426 (3d Cir. 2021) (“Rule 35 does not permit a defendant to move unilaterally for a reduction in sentence based on his substantial assistance. Indeed, the Government’s decision whether to file such motions based on substantial assistance is generally unreviewable ‘subject to constitutional limitations that district courts can enforce.”” (quoting Wade v. United States, 504 U.S. 181, 185 (1992))); 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).

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' 89 United States v. [Redacted], 986 F.3d 642, 645 (6th Cir. 2021) (“The district court erred as a matter of law in granting the Government’s Rue 35(b) motion and reducing [Redacted] an opportunity to respond to the Government’s motion . . . . [T]he court denied [Redacted] an opportunity to provide his own recommendation and present argument and accompanying evidence regarding the sentence reduction that he believed was warranted for his substantial assistance.”) (The court redacted the name of the defendant throughout); but see United States v. McMahan, 872 F.3d 717, 720 (5th Cir. 2017) (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.”). 90 United States v. Doe, 938 F.3d 15, 17 (2d Cir 2019) (‘“In deciding a Rule 35(b) motion, a district court makes two inquiries. First, it must determine whether the defendant in fact provided substantial assistance.’ Second, if it concludes that the defendant did provide substantial assistance, it must then determine whether to reduce the sentence, and, if so, to what extent” (quoting United States v. Katsman, 905 F.3d 672, 674 (2d Cir. 2018))). 91 McMahan, 872 F.3d at 718 (“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."”) (emphasis of the court); 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).").

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.").

”). Congressional Research Service 13 Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions Rule 35(b), however, does not authorize a court to reduce the amount of restitution previously ordered.92 Author Information Charles Doyle Senior Specialist in American Public Law Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. 92 United States v. Puentes, 803 F.3d 597, 599 (11th Cir. 2015). Congressional Research Service R41326 · VERSION 12 · UPDATED 14 United States v. Puentes, 803 F.3d 597, 599 (11th Cir. 2015).