What is Safety Valve in Federal Criminal Cases?

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Safety Valve is a provision codified in 18 U.S.C. 3553(f), that applies to non-violent, cooperative defendants with minimal criminal record without a leadership enhancement convicted under several federal criminal statutes. Congress created Safety Valve in order to ensure that low-level participants of drug organizations were not disproportionately punished for their conduct.

Generally applying to drug crimes with a mandatory minimum, Safety Valve has two major benefits for individuals charged with those crimes. Specifically, the two benefits of Safety Valve are:

  1. Relief from a mandatory minimum for certain crimes;
  2. Two-level reduction in offense conduct under U.S. Federal Sentencing Guidelines.

Benefits of Safety Valve Explained

The first benefit of Safety Valve is the ability to receive a sentence below a mandatory minimum on certain types of drug cases. Some drug charges have a mandatory minimum i.e. 5 years, 10 years. That means even if the person’s guidelines are lower than the mandatory minimum and the judge wants the sentence the individual below the mandatory minimum, the judge is legally unable to do so because that would be an illegal plea. If the Court determines that the individual meets the requirements of Safety Valve under 18 U.S.C. § 3553(f), the Judge is able to sentence the individual to a term that is less than the mandatory minimum.

The second benefit of safety valve is a two-point reduction in total offense conduct. Since 2009, federal sentencing guidelines are discretionary rather than binding. With that being said, federal sentencing guidelines still act as the Judge’s starting point in determining what the appropriate sentence on a case is. The higher the total offense score, the higher is the corresponding suggested sentencing range. A two-level difference can make a difference in months if not years of the sentence. Each point counts toward ensuring the lowest possible sentence.

What Are the Requirements for Safety Valve Eligibility?

Under 18 U.S.C. § 3553(f), the Defendant is eligible for Safety Valve if:

  1. The Defendant has a limited criminal history
  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;
  3. The offense did not result in death or serious bodily injury to any person;
  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 Substance Act, and
  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.

In order to establish eligibility for Safety Valve, the Defendant has the burden of proof to establish that s/he meets the five requirements by a preponderance of evidence. That is to say, the Defendant must prove by 51% that the Defendant meets all the requirements of eligibility. These five Safety Valve Requirements are explained in greater detail below.

1. Limited Criminal History for Safety Valve

The first requirement of Safety Valve is that the individual has a limited criminal record. The U.S. Sentencing Guidelines assign a certain number of points to prior convictions. The more serious the crime, and the longer the sentence, the more corresponding criminal history points it carries.

In order to be eligible for Safety Valve, an individual cannot have any of the following:

  1. More than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
  2. A prior 3-point offense, as determined under the sentencing guidelines; AND
  3. A prior 2-point violent offense as determined under the sentencing guidelines;

Calculation of Prior Criminal History Points

Generally speaking, these are the corresponding criminal history points for convictions:

3 Points
  • Adult or juvenile convictions resulting in a sentence of over 13 months
2 Points
  • Adult or juvenile convictions resulting in a sentence ranging from 60 days to 13 months; OR
  • Sentences for offenses committed while in prison, on probation, on parole, supervised release or while being an escaped prisoner.
1 Point
  • Adult or juvenile convictions resulting in a sentence up to 60 days

Convictions Not Resulting in Any Criminal History Points

Certain prior convictions do not count for any criminal history points. These include:

  • Stale Convictions
    • 15 year old 3-point convictions,
    • 10 year old 1 or 2-point adult convictions,
    • 5 year old 1 or 2 point juvenile convictions.
  • Tribal Convictions
  • Expunged, reversed, invalidated convictions
  • Petty Offenses or minor misdemeanors, such as
    • Traffic tickets,
    • Fish and wildlife violations,
    • Gambling and prostitution offenses (if the sentence was 30 days of imprisonment or less, or probation up to 1 year)

2. No Use Violence or Credible Threats of Violence or Possess a Firearm or Other Dangerous Instrument 

The second requirement of Safety Valve is that the individual did not use violence, credible threats of violence or possess a firearm or other dangerous weapon. Importantly, an individual can be disqualified from Safety Valve based on the conduct of co-conspirators, if the Defendant “aided or abetted, counseled, commanded, induced, procured, or willfully caused” the co-conspirator’s violence or possession of a firearm or another dangerous weapon. Thus, use of violence or possession of a weapon by a co-defendant does not disqualify someone from Safety Valve, unless the individual somehow helped or instructed the co-defendant to engage in that conduct.

To be disqualified from Safety Valve, possession of a firearm or another dangerous weapon can either be actual possession or constructive possession. Actual possession involves the individual having the gun in their hand or on their person. Constructive possession means that the individual has control over the place or area where the gun was located. Importantly, the possession of a firearm or a dangerous weapon needs to be related to the drug crime, as the statute requires possession of same “in connection with the offense.” However, “in connection with the offense” is a relatively loose standard, in that presence of the firearm or dangerous instrument in the same location as the drugs is enough to disqualify someone from Safety Valve.

3. The Offense Did Not Result in Death or Serious Bodily Injury to Any Person

The third requirement of Safety Valve is that the offense conduct did not result in death or serious bodily injury to any person. Serious bodily injury for the purposes of Safety Valve is defined as “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.”

4. Defendant is not an Organizer, Leader, Manager, or Supervisor of Others in the Offense

The fourth requirement of Safety Valve is that the Defendant was not an organizer, leader, manager or supervisor of others in the office. An individual will be disqualified from safety valve if s/he exercised any supervisory power or control over another participant. Individuals who receive an enhancement for an aggravating role under §3B1.1 are not eligible for safety valve. Similarly, in order to be eligible for Safety Valve, an individual does not need to receive a minor participant role reduction.

Isolated instances of asking someone else for help do not result in the aggravating role enhancement. As the Court of Appeals for the Second Circuit has held in United States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993), aggravated role enhancement did not apply to “one isolated instance of a drug dealer husband asking his wife to assist him in a drug transaction.” Similarly, in United States v. Figueroa, 682 F.3d 694, 697-98 (7th Cir. 2012); the Seventh Circuit declined to apply a leadership enhancement for a one-time request from one drug dealer to another to cover him on a sale.

5. Defendant Has Truthfully Provided the Government All Information and Evidence Regarding His Own Conduct in the Offense

The fifth and final Safety Valve requirement is that the individual meet with the U.S. Attorney’s Office for a Safety Valve proffer. A Safety Valve proffer is different from a regular proffer in that in a safety valve proffer, the individual is only required to truthfully proffer about his or her own conduct.

In contrast, in a non-safety valve proffer, the individual is required to truthfully provide information about his or her own criminal conduct, as well as the criminal conduct of others. In order to meet this requirement, the individual must provide a full and complete disclosure about their own criminal conduct, not just the allegations that are charged in the offense. There is no required time as to when someone goes in for a safety valve proffer, except that it must take place sometime “before sentencing.”

Which Criminal Cases Are Eligible for Safety Valve?

Not all charges with mandatory minimums qualify for Safety Valve relief. Rather, the criminal charge must be enumerated in 18 U.S.C. 3553(f). The following criminal charges are eligible for Safety Valve:

  • 21 U.S.C. 841
  • 21 U.S.C. 844
  • 21 U.S.C. 846
  • 21 U.S.C. 960
  • 21 U.S.C. 963
  • 46 U.S.C. 70503
  • 46 U.S.C. 70506

How Has the First Step Act Modified Safety Valve Eligibility?

Under the First Step Act, the eligibility for Safety Valve relief was expanded to more individuals. Specifically, The First Step Act, P.L. 115-391, broadened the safety valve to provide relief for:

  1. Defendants with more serious criminal records, AND
  2. Defendants convicted under the Maritime Drug Enforcement Act.

Prior to the enactment of the First Step Act, individuals could have a maximum of 1 criminal history point in order to be eligible for Safety Valve relief. Similarly, individuals who were prosecuted for possession of drugs aboard a vessel under the Maritime Drug Enforcement Act, were not eligible for Safety Valve relief. After the passing of the First Step Act, individuals prosecuted under Maritime Drug Enforcement Act, specifically 46 U.S.C. 70503 or 46 U.S.C. 70506 are eligible for Safety Valve relief.


Safety Valve is an important component of plea negotiations on federal drug cases and should always be explored by experienced federal counsel. If you have questions regarding your Safety Valve eligibility, please contact us today to schedule your consultation.