Recently in Federal Sentencing Guidelines Category

Supreme Court Holds that Juries Must Decide Facts Which Increase Mandatory Minimum Punishments

June 24, 2013, by The McKellar Law Firm, PLLC

The U.S. Supreme Court handed down a decision last week in Alleyne v. United States, which ruled that juries must decide any facts which could increase the minimum mandatory sentence for a defendant. Previously, judges would often decide such facts without any finding of fact from the jury.

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The case before the Supreme Court involved Allen Alleyne who was convicted of robbery and use of a firearm during the commission of a crime. During trial, the prosecution asserted that one of Alleyne's accomplices "brandished" a firearm during the commission of the robbery. However, on the jury's verdict form it found that a firearm was "used" and/or "carried" during the commission of the crime, not "brandished." For sentencing purposes, the judge presiding over the trial determined that a weapon was "brandished" despite the jury's silence on the matter. Due to the judge's decision, Alleyne received an increased mandatory minimum punishment of seven years.

The subtle difference between "carrying" or "brandishing" a weapon during the commission of a crime can change the mandatory minimum sentence from five years to seven years. Alleyne objected to this increase in punishment at sentencing, and he argued that such an increase, without a finding of fact by the jury that he brandished the weapon, violated his Sixth Amendment rights.

The Supreme Court agreed with Alleyne by stating "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." This ruling means that any fact that can increase punishment for a crime will now have to be proven "beyond a reasonable doubt" to the jury before the increased sentencing can be applied. Accordingly, in Alleyne's matter, the trial court's decision was reversed and remanded for sentencing based on its ruling.

An Overview of Tax Crimes Sentencing pursuant to the U.S. Sentencing Guidelines

July 25, 2012, by The McKellar Law Firm, PLLC

Determining the appropriate sentence for tax-related crimes can often cause even experienced criminal defense attorneys to struggle. The main hurdle in determining the appropriate Sentencing Guidelines range is calculating the appropriate "tax loss." This short blog entry will not address all the nuances in determining tax loss, but rather will focus on how the Sentencing Guidelines are applied once the tax loss amount has been determined.

One of the factors which a sentencing judge will consider is the "Tax Table" contained in Section 2T4.1 of the Federal Sentencing Guidelines. Although the Sentencing Guidelines are advisory only, they can be helpful to assist in determining a potential range of punishment that a judge may consider when sentencing a taxpayer convicted of committing a tax crime. The table below classifies the appropriate offense level in light of the amount of tax loss.

Tax Guidelines

§2T4.1. Tax Table
Tax Loss (Apply the Greatest) Offense Level
(A) $2,000 or less 6
(B) More than $2,000 8
(C) More than $5,000 10
(D) More than $12,500 12
(E) More than $30,000 14
(F) More than $80,000 16
(G) More than $200,000 18
(H) More than $400,000 20
(I) More than $1,000,000 22
(J) More than $2,500,000 24
(K) More than $7,000,000 26
(L) More than $20,000,000 28
(M) More than $50,000,000 30
(N) More than $100,000,000 32
(O) More than $200,000,000 34
(P) More than $400,000,000 36.

Once the amount of Tax Loss has been determined, a taxpayer will know his/her Offense Level. The Offense Level will correspond to a range of punishment (in months) as set forth in the Sentencing Table below:

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The Sentencing Guidelines are one of many factors which a sentencing judge should consider before sentencing a convicted tax defendant. An experienced criminal defense and tax attorney can be an invaluable asset in presenting the best case possible for convicted tax defendants.

Sixth Circuit Court of Appeals Overturns Sentence of 1 Day Confinement for Man Convicted of Possession of Child Pornography

February 3, 2012, by The McKellar Law Firm, PLLC

In United States v. Bistline, No. 10-3106, 2012 WL 34265, at *1-*15, (6th Cir. Jan. 9, 2012) Richard Bistline pled guilty to knowingly possessing more than three hundred images and videos of child pornography. Most of those images contained eight to ten year old girls being raped by adult men. According to current sentencing guidelines Bistline should have served sixty-three to seventy-eight months behind bars for his offense. The district court that heard his case did not agree. Bistline was sentenced to serve one night in the courthouse jail and ten years supervised release. The decision was appealed and reviewed by the Sixth Circuit Court of Appeals.

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In its written opinion the district court held that the sentencing guidelines under § 2G2.2 were "seriously flawed" because Congress took an active role in crafting the guideline. Essentially the district court felt that Congress should have let the Sentencing Commission do the job that Congress appointed them to do. The Court of Appeals rejected this notion and stated, "Congress can marginalize the (Sentencing) Commission all it wants: Congress created it."

The district court also objected to the guidelines on the belief that two lawyers from the Justice Department lobbied a naive congressman to add sentencing changes to the Amber Alert bill. The Court of Appeals quickly discarded the argument by stating that both Houses of Congress and the President approved the legislation. What happened before that was not the court's concern.

The final objection to § 2G2.2 that was outlined by the district court was that the sentencing guideline was "not arrived at through empirical study and data," citing Kimbrough v. United States, 552 U.S. 85 (2007). The Court of Appeals compared Kimbrough, which outlined how a district court could disagree with a guideline on policy grounds, to the case at bar. They found that the current case was not like Kimbrough because Congress' power to make sentencing policy flows directly from the Constitution.

In determining if the sentence that the district court gave to Bistline was reasonable, the Court of Appeals noted that the crime of possession of child pornography went "virtually unpunished in this case." The Court of Appeals rejected the lower court's theory that Bistline innocently became caught up in a free website and, therefore, did not actively seek the pornography, but that the pornography actively sought him through advertising and/or viruses. It was noted that Bistline knowingly acquired hundreds of images over a period of about one year. With this reasoning the Court of Appeals found that the sentence imposed on Bistline did not reflect the seriousness of his offense as outlined by Congress in § 3553(a). Bistline's sentence was vacated and remanded back to the lower court.

Sentencing Judges are Prohibited from Ordering Additional Imprisonment Solely to Allow Defendants to Participate in Drug Treatment Programs

June 21, 2011, by The McKellar Law Firm, PLLC

The United States Supreme Court's decision last week in Tapia v. United States (2011 WL 2369395 (U.S.)) could affect how long a number of criminal offenders spend in prison. Alejandra Tapia was convicted of smuggling unauthorized aliens into the country. The District Court found that the United States Sentencing Guidelines recommended that Tapia be sentenced to 41 to 51 months in prison. At Tapia's sentencing, the judge imposed a 51-month sentence, stating that Tapia could benefit from the Bureau of Prison's Residential Drug Abuse Program ("RDAP"), and that Tapia should spend enough time in prison to qualify for and complete the program.

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Tapia appealed the sentence to the Ninth Circuit Court of Appeals, where she argued that 18 U.S.C. § 3582(a) prohibited lengthening her sentence so that she could participate in RDAP. The Ninth Circuit disagreed with Tapia, but the United States Supreme Court reversed, holding that courts are not permitted to either impose imprisonment or lengthen a prison term in order to promote the offender's rehabilitation. The Supreme Court thus resolved a split among several Courts of Appeals on this issue.

The Supreme Court's decision was based primarily on the language of 18 U.S.C. § 3582(a), part of the Sentencing Reform Act of 1984 ("SRA"). Section 3582(a) states that when courts determine whether to sentence an offender to prison and for how long, the court should "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court also cited a provision related to the Sentencing Guidelines instructing the Sentencing Commission to "'insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or provide the defendant with needed educational or vocational training, medical care, or other correctional treatment." 28 U.S.C. § 994(k).

The Court found this to be so even though the SRA states that rehabilitation is one of the primary purposes behind sentencing. 18 U.S.C. § 3553(a)(2). The Court distinguished these provisions, finding that while rehabilitation is a purpose of sentencing generally, it is not a factor in determining the appropriateness of imprisonment or the duration of a prison sentence. Congress made clear its determination that imprisonment is not the way to achieve rehabilitation by enacting § 3582(a).

The Court also examined additional evidence of Congressional intent. The opinion notes that there are no provisions in the SRA that give courts the power to order offenders to participate in prison rehabilitation programs; the Bureau of Prisons has complete authority over those decisions. For example, in this case, the trial judge clearly hoped Tapia would participate in RDAP, but she never enrolled.

The Court was careful to state that it approves of lower courts discussing the rehabilitation and education programs that are available to offenders who have been sentenced to prison. What courts may not do is extend the term of imprisonment so that these services are available to offenders who otherwise would not have adequate time to complete such a program.

Sixth Circuit Overturns Sentence of Tennessee Defendant Due to Trial Court's Abuse of Discretion

In a rare move, the United States Sixth Circuit Court of Appeals overturned a sentence handed down in the Eastern District of Tennessee and remanded the case to the trial court for resentencing. In U.S. v. Evelyn Worex, the Sixth Circuit concluded that the sentence was substantively unreasonable.

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The defendant, Evelyn Worex, entered a guilty plea to an indictment charging her with one count of unlawful possession of firearms and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Ms. Worex was sentenced to 48 months confinement, but her advisory United
States Sentencing Guidelines range was 18-24 months. The trial court sentenced Ms. Worex to a 24-month upward variance based upon her alleged involvement in uncharged criminal activity that had not been established by a preponderance of the evidence. The information concerning Ms. Worex' involvement in the uncharged criminal activity was derived from the Presentence Investigation Report.

Ms. Worex' appeal is essentially that the sentencing court abused its discretion by imposing an above-Guidelines sentence based upon the factual circumstances of her case when her potential involvement in the uncharged shootings had not been proven by a preponderance of the evidence. Accordingly, Ms. Worex claims that the 24-month upward variance from the 18-24 month Guidelines range, which resulted in a 48-month sentence, was premised upon improper judicial fact-finding.

The Sixth Circuit agreed with Ms. Worex' appeal because the uncharged criminal conduct was not proven by the "preponderance of the evidence" standard. The Appeals Court wrote:

...the district court may consider uncharged conduct for sentencing purposes, but in order to do so, it "must make findings by a preponderance of the evidence." Here, it is undisputed that, at the time of her sentencing, Worex had not yet been charged for her role in the Piatt and Burrell shootings. Moreover, the district court conceded that the evidence regarding this uncharged conduct, albeit incriminatory, was insufficient to establish her involvement by a preponderance of the evidence. (citations omitted)

Defendants and attorneys alike should be very careful of which "facts" provide the basis for a defendant's sentence. Presentence reports can be a potential back door for unproven information to be presented to a sentencing judge. Timely objections to both the Presentence Report and to a sentencing judge may be necessary for any unproven information used to sentence a defendant.

Tennessee Man Sentenced to 15 Years for Being an Armed Career Criminal

April 11, 2011, by The McKellar Law Firm, PLLC

While most non-lawyers are aware that a person's prior criminal history can impact their sentencing for future crimes, few people are aware of how drastic the sentences can be for convicted felons who continue to possess firearms. One such example of an enhanced punishment due to one's past deeds is contained in the Armed Career Criminal laws found at 18 U.S.C. § 924(e) and in the United States Sentencing Guidelines § 4B1.4.

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Earlier today, Tennessee resident Bradlee Thomas was sentenced to a 15-year sentence for being an armed career criminal. According to a press release from the U.S. Attorney's Office for the Eastern District of Tennessee, Thomas pleaded guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Due to Thomas' prior criminal history, which included convictions for burglary, he was exposed to enhanced punishment as an armed career offender.

18 U.S.C. § 924(e) provides:

In the case of a person who violates section 922 (g) of this title and has three previous convictions by any court referred to in section 922 (g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years...

Further, the Sentencing Guidelines § 4B1.4 will typically provide a beginning base level of 33 or 34. Based on a person's criminal history, the Sentencing Guidelines range will be anywhere from 188-327 months. Of course, a defendant may be able to lower his/her guideline level through such avenues as Acceptance of Responsibility and providing "substantial assistance" to the Government. Regardless of these potential sentencing reductions, a defendant with certain classes of prior felonies who is found in possession of a firearm is looking at a potential lengthy prison sentence.

Sixth Circuit Rules that Duplicate Images Count Separately under Child Pornography Sentencing Guidelines

March 8, 2011, by The McKellar Law Firm, PLLC

In an issue of first impression, the Sixth Circuit ruled that duplicate digital images, like duplicate hard copy images, count separately for purposes of determining an appropriate sentencing enhancement under USSG § 2G2.2(b)(7). In the case of United States v. Timothy McNerney, No. 09-4011, decided March 1, 2011, the Sixth Circuit addressed several important issues related to child pornography cases, but this blog post is focused only on the sentencing implications of having duplicate electronic copies of child pornography.

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In this case, the Defendant McNerney appealed his sentence of 10 years of incarceration, which he received after entering a guilty plea to one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The facts of the case are as follows: government agents, pursuant to an internet search, determined that McNerney was sharing images of child pornography via a peer-to-peer file-sharing program. After executing a search warrant, federal agents seized McNerney's computer and found numerous child pornography images. The agents also discovered that McNerney had backed up his files on a second hard drive, which created an identical copy of all files (including the child porn) on his computer.

At the sentencing hearing, the trial court calculated McNerney's total offense level pursuant to the Sentencing Guidelines at a level 30, which based on his lack of criminal history, resulted in an advisory sentence range of 97 to 121 months. The trial court calculated McNerney's offense level as follows:

1. The trial court began with a base offense level of 22
2. The trial court then added a two-level enhancement for images of prepubescent minors pursuant to U.S.S.G § 2G2.2(ii)
3. The court added a two-level enhancement for transferring materials over the internet pursuant to U.S.S.G § 2G2.2(b)(3)(F)
4. The court added a two-level enhancement for using a computer in the crime pursuant
to U.S.S.G § 2G2.2(b)(6)
5. The court added a five-level enhancement for having more than 600 images pursuant to U.S.S.G § 2G2.2(b)(7), producing a total offense level of 33.
6. Finally, the court then adjusted McNerney's offense level for acceptance of responsibility,
placing his final offense level at 30, which calls for a guideline range of 97-121 months.

McNerney specifically challenged the sentencing court's 5-level enhancement for possessing 600 or more images, pursuant to U.S.S.G § 2G2.2(b)(7). Section 2G2.2(b)(7) of the Sentencing Guidelines provides for an increase in a defendant's offense level for child pornography based on the number of images possessed as follows: "If the offense involved - (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels."

McNerney contends that only unique digital images, not duplicate digital images, should be counted in computing an enhancement under this provision of the Sentencing Guidelines. The Sixth Circuit rejected McNerney's argument and delcared that "duplicate visual depictions, digital or otherwise, should each be counted separately for purposes of this enhancement."

In a bit of odd reasoning, the Sixth Circuit Court did write in a footnote that thumbnail images are not counted separately for U.S.S.G. § 2G2.2(b)(7) purposes because thumbnails are not duplicate digital images. Rather, the Court writes, thumbnails are simply previews of digital images that are viewable without opening the digital folder in which the digital images are contained.

Strip Club Owner Receives Sentencing Break for Tax Crimes After Cooperating with Government

February 7, 2011, by The McKellar Law Firm, PLLC

After pleading guilty to tax crimes, A Chicago area strip club owner received a sentencing break after cooperating with the federal government. According to the Chicago Tribune, Michael Wellek entered guilty pleas to to impeding an Internal Revenue Service investigation and filing a false income tax return. Additionally, the government seized $12 million that Wellek had hid in duffel bags.

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Wellek's punishment pursuant to the federal sentencing guidelines called for a 4-year sentence, but the Court ordered Wellek to 1 year in prison followed by 6 months of home confinement due to "substantial assistance" that he provided to the government. A sentence below the advisory federal sentencing guidelines can occur under Section 5K1.1 of the U.S. Sentencing Guidelines, which provides:

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.

There are a few points to consider for defendants who are considering providing substantial assistance to the government. First, the government (and not the defendant) decides whether the assistance/information provided was "substantial." Accordingly, if a defendant provides information that is truthful but of little to no value, the defendant may not receive a motion for downward departure pursuant to Section 5K1.1 Second, the timeliness of a defendant's assistance is a consideration for both the sentencing court and the prosecution. As a result, a decision on whether to cooperate with the government may need to be made early in the process so as to yield the greatest advantage to the defendant. As always, consult an experienced federal criminal defense attorney prior to speaking with government agents or prosecutors.

Sixth Circuit Tackles Valuation Under the Computer Fraud and Abuse Act

January 31, 2011, by The McKellar Law Firm, PLLC

Although the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, has been alive and well for 25 years, Courts have varied in their approach on determining valuation under this statute. Under the CFAA, valuation plays a pivotal role in determining whether the crime will be treated as a misdemeanor or felony, the appropriate Sentencing Guidelines Range, and the amount of restitution.

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In United States v. Batti, 2011 WL 111745, (6th Cir., Jan 14, 2011), the Defendant was charged with violating the CFAA and particularly with improperly accessing information from a protected computer, in violation of 18 U.S.C. § 1030(a)(2)(C) and (c)(2)(B)(iii). Batti appealed the trial court's finding that the value of the information that he obtained exceeded $5,000 and the district court's order of $47,565 in restitution. The Sixth Circuit determined that the trial court properly used the "value of production" in determining the value of the information that Batti illegally took, and the Court further decided that the trial court did not abuse its discretion in ordering restitution in the amount of $47,565.

18 U.S.C. § 1030(a)(2)(C) sets out the prohibited conduct as follows:

(a) Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... (C) information from any protected computer ... shall be punished as provided in subsection (c) of this section.

Per the indictment, the prosecution sought a felony conviction by alleging, pursuant to subsection (B)(iii) of the CFAA, that Batti "obtained information valued in excess of $5,000.00." The only portion of this charge that Batti challenged in the court below was whether the value of the information that he obtained exceeded $5,000. The appellate court ultimately agreed with the trial court's valuation for both sentencing and restitution purposes.

Batti first argued that since he did not damage the stolen information, the "value of the information obtained" could not have exceeded $5,000. The Sixth Circuit echoed the view of the trial court by stating, "There simply is no requirement under the pertinent subsections of § 1030 that Defendant's unauthorized access must have led to any sort of loss, that the value of the information must have been diminished as a result of his conduct, or that he somehow must have profited from his actions. Rather, the trier of fact-in this case, the Court-is called upon only to determine the value of the information through some appropriate means."

Batti also argued that there was no "market value" to the information that was stolen, and accordingly, the court could not assess a value to the information. Again, the Sixth Circuit rejected this argument by stating, "We believe there is also no merit in this argument, because, as we explain below, although there may be no readily ascertainable market value for the video footage that Batti obtained, the cost of production of that footage was a permissible basis on which the district court could rely in determining whether the value of the information obtained exceeded $5,000."

The Sixth Circuit Court of Appeals concluded:

...where information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value, it is reasonable to use the cost of production as a means to determine the value of the information obtained. The district court here believed that the amount Campbell-Ewald paid for the "spots" or video footage that Batti later obtained could be viewed as the footage's market value, but the district court also recognized that footage of this type is not sold on a typical retail market. As a result, the district court believed that the amount that Campbell-Ewald paid for the footage could also be viewed as the cost of production for the development of advertisements or commercials. We see no error in this approach.

The Court acknowledged that the "value of production" method is not the only way to calculate value under the CFAA, and in fact, other circuits have not agreed with the analysis used by the Sixth Circuit. However, computer fraud attorneys in the Sixth Circuit should be aware of the implications of this ruling on a client's sentencing and restitution amounts.

Tennessee Man Pleads Guilty to Violating Arms Export Control Act

January 21, 2011, by The McKellar Law Firm, PLLC

Knoxville, Tennessee federal criminal defense lawyers won't often deal with violations of 22 U.S.C. § 2778, which is commonly referred to as the Arms Export Control Act (AECA). The AECA provides the federal government with authority to control the export of defense articles and services.

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Earlier this week, Jerome Pendzich of Hampton, Tennessee, pleaded guilty to violating the AECA here in U.S. District Court in Knoxville. According to an article by Jamie Satterfield in the Knoxville News Sentinel, Immigration and Customs Enforcement Agency (ICE) officials searched the internet to find sellers who were selling munitions and other weaponry which violated the AECA. ICE officials found Pendzich on Ebay offering "worldwide shipment" of a type of body armor which is governed by the AECA.

Federal agents set up a sting as they pretended to be customers from Bogota, Colombia. Pendzich mailed prohibited items to Colombia and labeled them as "gifts" and "ceramic plates." ICE agents raided Penzich's home in 2009, and he ultimately admitted that he knew his actions were illegal. Penzich has not yet been sentenced.

Violation of the AECA is governed in part by the United States Sentencing Guidelines Section 2M5.2. This section of the Guidelines provides a base offense level of 26 (which would be 63-78 months of imprisonment for Category I offenders) or a level of 14 if the offense involved only non-fully automatic small arms, and the number of weapons did not exceed ten. Level 14 provides a range of punishment of 15-21 months for Category I offenders. However, a downward departure from these ranges of punishments may be in order if the offense did not have the potential to be harmful to a security or foreign policy interest of the United States, as was the case with Pendzich.

Tennessee Man Sentenced to 25 years in Federal Child Pornography Case

January 5, 2011, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences due to both federal statutes and the federal sentencing guidelines. A local Tennessee child pornography case illustrates this point well. As reported by Jamie Satterfield in the Knox News Sentinel, Joseph Wayne Jennings was sentenced to 25 years in prison for various child pornography and sexual exploitation of a minor crimes. Jennings was arrested in June 2009 at a Morristown, Tennessee, hotel after he arrived expecting to have sex with an 8-year-old girl. Prosecutors allege that in addition to possessing child pornography, Jennings was trying to entice mothers to set up sexual encounters between Jennings and their young daughters.

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Under U.S. Sentencing Guidelines § 2G2.2, Jennings' advisory guideline range was 292-365 months of incarceration, and he was subject to a minimum term of 120 months as to Count One (using a means of interstate commerce to attempt to induce a minor to engage in illegal sexual activity), a minimum term of 60 months as to each of Counts Two and
Three (distribution and receipt of child pornography) and a maximum term of imprisonment of
120 months imprisonment as to Count Four (possession of child pornography).

Ms. Satterfield writes, "Joseph Wayne Jennings faced more punishment for looking at pictures of child rape victims than he did for trying to lure a child to be raped. His case highlights a sentencing disparity long claimed by defense attorneys and increasingly questioned by federal judges nationwide, including some in East Tennessee, as the average sentence for suspects caught with child pornography has jumped 443 percent over a 10-year period."

Determining the correct sentence for someone convicted of Sexual Exploitation of a Child, pursuant to 18 U.S.C. § 2251, or of possessing, receiving, or distributing Child Pornography, pursuant to 18 U.S.C. § 2252, takes a careful analysis of both the statutes involved and the Federal Sentencing Guidelines.


Additional Resources
"Porn Sentencing Rules Puzzle," Jamie Satterfield, Knox News Sentinel (Online Edition), January 5, 2011.
18 U.S.C. § 2251
18 U.S.C. § 2252

"Safety Valve" Allows Defendants to Escape Minimum Mandatory Sentences

December 8, 2010, by The McKellar Law Firm, PLLC

Federal criminal defense lawyers should be well aware of the so-called "Safety Valve" provisions of 18 U.S.C. § 3553(f) and United States Sentencing Guidelines § 5C1.2. The Safety Valve allows a defendant who qualifies to receive a sentence below a statutory minimum sentence. However, the Safety Valve only applies in limited situations.

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To be eligible for Safety Valve, a defendant must:
1. be convicted of an offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963;
2. not have more than 1 criminal history point;
3. not have used violence or guns;
4. not have been involved in an offense that resulted in death or serious injury;
5. not have been an organizer, leader, manager, or supervisor of others or have been involved in a "continuing criminal enterprise," as defined in 21 U.S.C. § 848; and
6. by sentencing have provided government with truthful information about offense and related conduct.

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