Who Decides If You Told the Truth for the Safety Valve? The Judge

The judge, not the government, decides whether you gave "truthful information" to qualify for the safety valve. The U.S. Court of Appeals for the Fifth Circuit held this on August 21, 2020. U.S. v. Lima-Rivero, No. 19-10759 (5th Cir. Aug. 21, 2020).

The safety valve lets a judge sentence below a mandatory minimum in some drug cases if you meet several requirements (18 U.S.C. § 3553(f)).

What Happened in Lima-Rivero

After pleading guilty to a methamphetamine offense, the defendant met with the government to try to qualify. One requirement is that you truthfully give the government "all information and evidence" you have about the offense.

A DEA agent testified that the defendant was "less than forthcoming." The district court in the Northern District of Texas denied the safety valve, saying, "I think it's up to the government to determine if the defendant has complied."

That was wrong. Under 18 U.S.C. § 3553(f), the court decides whether each requirement is met. The Fifth Circuit found the agent's testimony was based on "mere speculation," not facts. It sent the case back for the district court to decide for itself whether the safety valve applied.

Preparing for a Safety Valve Interview

The information must be given to the government no later than the time of the sentencing hearing (§ 3553(f)(5)). Meet with your lawyer before the interview, often called a proffer, to go over what you know and to make sure your account is complete and consistent. If the government still says you held back, your lawyer can ask the judge to decide the question on the actual facts, as Lima-Rivero requires.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.