Machado: The Myth Of The Busted Safety Valve

Whenever Drug Warriors hear challenges about how non-violent, first-time offenders are being unjustly sentenced to rot in cages for decades, their go-to rebuke is the adored Sentencing Guidelines “safety valve.” They say that the valve saves those who are regarded as the most sympathetic defendants in the drug war from being sentenced to cruelly disproportionate sentences. But the real valve, as seen on the ground, provides a different picture.

The following is a not-uncommon tale involving a federal narcotics case and how the “safety valve” sentencing provision, which is meant to help out those criminal justice virgins, can be rendered meaningless in light of how drug conspiracies are usually prosecuted:

Joe is a young guy who hangs with the “wrong crowd” but has never had a brush with the law. In times of financial strife and sheer boredom – he’s a millennial who has a shit job and a girlfriend he can’t stand — he gets asked by one of his amigos to drive a car that has some meth in it from point A to point B. He’s only told that there are 2 kilos hidden inside, nothing else, and agrees to get paid $1,000 per kilo. It’s not much, but he’s new to the game and naïve, so he takes it.

He doesn’t package the stuff, load it into the car, negotiate the deal, or even meet the buyer or seller. He just agrees to drive the drugs. It turns out that his amigo has been under government surveillance, and eventually Joe gets caught with the car and the stuff. He gets indicted in federal court, and is charged with conspiring with his confederates to possess with intent to distribute 50 grams of pure* meth.

Because it’s a drug conspiracy, the government does not have to prove an overt act, but that’s neither here nor there, at least for the moment. What’s driving Joe into a panic as he sits in pretrial detention is one thing the prosecutor said during his bond hearing:** Joe is facing a mandatory minimum of ten years in federal prison for the 50 grams of meth in the indictment.

While talking to a cellie While keeping to himself, because that’s what his lawyer told him to do, Joe overhears someone talking about something called a “safety valve,” and how it gives sentencing breaks to people without criminal records. A ray of hope, and Joe can’t wait to ask his lawyer about this discovery during their next meeting.

In 1994, Congress created what’s called the “safety valve” provision of the federal Sentencing Guidelines. It was created for the perceived purpose of giving first-time offenders a chance to escape the dreaded mandatory minimum sentences that are triggered by drugs. Hell, it only took them years of putting people in cages for insane lengths of time to realize there was an issue with mandatory minimums,*** but no one ever said being a quick study was a prerequisite to serving in Congress.

Title 18 U.S.C. § 3553(f)(1)-(5) provides the checklist that people like Joe have to satisfy in order to unshackle his sentencing Judge’s hands from the mandatory minimum that was handed down by Congress, out of its ass in its infinite wisdom:

(1)        the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);

(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 21 U.S.C. § 848; 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.

Tl;dr version: Defendant has no criminal history; didn’t use or threaten violence;  wasn’t a leader of the conspiracy or engage in continuing enterprise; has to sit down with the government and tell them all the naughty things that led to his arrest. Joe checks out, but the government has a bludgeon up its sleeve that can still land him near the 10-year sentencing range, if not the minimum.

Remember the 2 kilos that Joe never saw, touched, or even negotiated over? The ones that he got paid a measly $2 grand to transport, while his friends would’ve netted much more from the sale? Under drug conspiracy laws, the government can still ask the Judge to sentence Joe for the entire 2 kilos, and not just the 50 grams of meth that triggered the mandatory minimum.

And where does 2 kilos of “pure” meth land Joe on the sentencing chart, with his clean record? At level 36, the second highest for drug trafficking, yielding a sentencing guideline of 188 to 235 months. So, after Joe gets his reduction as per the safety valve and “accepting responsibility” by foregoing trial and giving up in a “timely fashion”? At level 31, with a range of 108 to 135 months.

Yes, he’s been rid of the 10-year mandatory minimum that was hanging over his head, and his judge can now sentencing him below that.  But bear in mind appellate courts have considered sentences within the guidelines to be “reasonable,” and thus it will still be up to a learned judge to stop the insanity by looking the government in the eye and saying, “Enough!”

*Meth is so frowned upon by Congress that 50 grams carries the same 10 year minimum as does 1 KG of heroin or 5 KG of coke. Even 50 grams “mixed” meth carries a 5 year minimum.

**The government used Joe’s lifetime of good conduct against him during the bond hearing: it told the court that since he’s never done time, let alone face charges, the fact that he’s facing such a stiff term for the first time means he is likely to flee. See how that works?

***Congress reinstated mandatory minimums for drugs in the Anti-Drug Abuse Act of 1986, based on public outcry following the overdose of Boston Celtics first-round draft choice, Len Bias.

21 thoughts on “Machado: The Myth Of The Busted Safety Valve

  1. wilbur

    That bond hearing argument is ridiculous, leading imaginary Magistrate Wilbur to squint imperiously at the AUSA. It’s a bad look.

    And I hope Joe got paid his $2,000, and was able to finagle a way to keep it. I love happy endings.

  2. Richard Kopf


    Good post. I have a question and several comments.

    1. In your steamy neck of the woods, and assuming the facts of your hypo are exactly as represented, would you expect a variance from federal judges in your district? If so, how much? If it were me, I think about 48 months would be an appropriate sentence.

    2. Most of the mules I see can be divided into two groups. None look like your guy.

    The first group is comprised of the pros who make relatively frequent interstate deliveries of large quantities of drugs or cash. They are trusted by the consignors because the mules understand that the downside is deathly unpleasant. Sometimes they have knowledge of the higher-ups, but not often. Most often, they deal with another low-level schmuck.

    The second group, for which I have particular empathy, are the illegals from Mexico who drive a car from El Paso to a meat packing plant in Nebraska to take a shit job on the kill floor. They are paid maybe $200 bucks plus the “free” transportation. They have no idea what they are carrying but suspect it is drogas. They also have no idea where it is in the car. Perhaps a coyote has made the arrangements. They are told to show up someplace in El Paso and an unknown guy will give them the car and the keys. He will provide a road map, and tell them to drive to a Walmart parking lot in Nebraska where another unknown guy will take the car. In short, in my neck of the woods, the poor gringo (I assume) millennial n your hypo would be atypical.

    3. Now to the facts of your hypo, at least here, it does not ring true. In your hypo, the guy knew he was transporting two kilos and he knew the source of supply. Two kilos of pure methamphetamines are not, in my experience, entrusted to rookies because it is worth a shitload of money. Moreover, no source of two kilos of meth that I have encountered is likely to reveal himself to a first time mule. So, I take issue with your facts, although, as I say, I don’t have any experience in your part of the country.

    Your hypo and post do ring true, however, on a deeper level. For the last 25 years plus I have become inured to imposing life plus cancer and other draconian sentences. Sad to say, I can do so almost without blinking. Although as I have said before, I take my glasses off when I do so ’cause I don’t want to look into their eyes.

    All the best.


    1. SHG

      Sticking my nose in (as I occasionally do), two points occur to me. The non-violent first time drug offender valves out of the mandatory mins, but gets a Guideline of just under 121 months, leaving him to “trust” the judge (after he’s spilled his guts to the feds) to do the right thing. This may strike judges as hard to imagine, but people don’t trust judges enough to throw caution to the wind, take the certainty of prison without the certainty of how long.

      Second point is that in Mario’s hypo, the mule was friendly enough with the source to be trusted, and hungry enough to do it for a couple grand, but then, the implicit assumption is that if he got caught once, he got away with it a hundred times before. It’s a perfectly reasonable assumption, but it’s still an assumption, no matter how strenuously the government believes it to be true. Every mule has a first time.

      1. Richard Kopf


        No argument from me on either of your points.

        Fun fact from a previous post on SJ illustrative of your first point:

        In cases where there is no government request, I vary downward only 20% of the time on my own. Yet when I do vary downward (whether at the request of the government or otherwise) I am lavish. I give a sentencing discount, measured from the low-end of the Guidelines, of a whopping 70%.

        All the best.


        1. SHG

          Lavish indeed. I’m picturing my meeting with my client to discuss such lavishness.

          Me: When the judge goes low, he goes really low.
          Deft: So I’m guaranteed that he’ll go low?
          Me: Well, guaranteed? No. There’s no guarantees.
          Deft: But he won’t go high, right? RIGHT?!?
          Me: I can’t imagine he would, but I can’t promise that.
          Deft: So you think he’s depart downward, and you think it will be a lavish downward departure.
          Me: Yes. I feel pretty confident that will happen.
          Deft: But you won’t promise that, will you?
          Me: No, I can’t make promises for the judge.
          Deft: And if you’re wrong, you’ll serve my sentence?
          Me: No, that’s not how it works.
          Deft: So you’re confident, but not enough to make a promise, and want me to risk the rest of my life but you won’t take any risk on your being right?
          Me: Well, when you put it that way, it doesn’t seem like nearly as good an idea.

          Of course, it may not go this smoothly.

          1. Richard Kopf


            I have a solution. Shitcan the Guidelines. Have Congress adopt specific statutory sentences (or extremely narrow ranges) for each criminal offense–make such a sentence binding and applicable to anyone who committed the specific crime. No exceptions. Then I can fall back to sleep.

            Of course, assuming the foregoing is not to your liking, you could tell your client to go to trial. The government’s evidence–only ten snitches and two kilos of meth wrapped in duct tape and plopped in front of the jury–should not cause your client any worry.

            More seriously, I credit your dialogue. Like Plato’s Socrates, you make your point very well. The uncertainty that defense lawyers face is one reason why I have a lot of respect for the many good ones who have not succumbed to alcoholism due to the intense pressure brought about unpredictability.

            All the best.


            1. SHG

              The ten snitches don’t bother me. It’s the 437 hours of wires where he’s unkind to another minority that breaks my heart.

      2. Mario Machado

        Judge Kopf,

        Thank you for your comments.

        1. I would expect a variance in the SDFL, but not down to 48 months for that hypo. If the situation is right, the defense would swing for the fences now that the mandatory minimum is off the table, but reality can be a sobering thing. For better or worse, the most surefire way of going from 121 to 48 or below, would be a rule 35.

        Echoing what SHG said, not matter the wonderful things the client heard about the judge from his lawyer, cellies, family, whatever, when they see that triple digit guideline range, it terrifies them nonetheless. It’s a real possibility the judge will stay within the range or give only a small variance.

        2. Yes, my hypo millenial mule deserves a little less sympathy than the Mexican illegal because he knew the amount, type of drugs in the car. But he knew that only because that’s how the agreement for his payment was made, he was told one thousand per kilo.

        Now, in south Florida many come into the conspiracy because they knew someone from the old country (or maybe did some time there together for let’s say, slaughtering a cow behind the regime’s back) and there’s a certain level of rapport that cuts both ways. A millenial gringo virgin mule is not common, but a recent arrival who ends up rekindling a friendship with someone who came to Miami years before him and is far ahead in a narcotics conspiracy, is.

        Down here, there are many who are rookies but are entrusted with non-rookie assignments like housesitting marijuana growhouses. Some are just given free rent of the premises along with some walking around money, and they are just too inexperienced to ask for more. Luckily for them, though, there’s so much other stuff to go after that the feds usually won’t waste time with that weed tomfoolery and leave it to the state prosecutors. As a result, they won’t be exposed to a fed min mandatory.

        3. If we’re going to take the safety valve seriously and take the almighty Congress at its word, everyone (most especially the sentencing Judge) must assume, take for granted, that this is his first time. He is a criminal history of 0 or 1, and thus this is his first real encounter with the federal system.

        Taking it further, even if it comes out that he has been detained by law enforcement several times with drugs, but never actually collared or indicted, this is his first federal rodeo and should be treated as such when it comes to the valve. Yes, the reality tells us otherwise, because Judges will assume and thus sometimes sentence accordingly.

        4. Before going into this point, I wonder, Judge what’s the number of “pure” versus “mixed” meth cases in Nebraska. It’s the pure stuff that’s driven down here from Mexico that puts them in the chart’s penultimate circle of hell.

        As to south Florida, I’ve seen cases were a true first timer (recent arrival with no evidence of prior runs, but with friendlies who are running a drug racket) was entrusted with way more than 2 kilos.

        As for your habit with removing your eyeglasses, I saw something bizarre in an immigration court recently that may interest you. The immigration judge who presided over the deportation trial didn’t wear any during it, but just as he was about to enter a sentence of permanent banishment from this country, he did something bizarre: he put sunglasses on, and kept them on until he finished reading his sentence. I think he looked very hip doing it; the deportee, not so much.

        The best to you, Judge.


        1. Richard Kopf


          We still see mixes of meth but more and more of the pure stuff. All the best.


          PS. I am going to buy me some RAY-BAN AVIATORs from the mirror collection.

      3. B. McLeod

        Most common folk don’t know any judges. They either meet them in court (often not on the best of terms) or form their opinions from TV shows and the movies (in which judges are usually depicted as stern, humorless and merciless). Filling clients in about the judges, and what particular judges are likely to do, is one of the truly valuable services counsel can provide, in a climate where 90% of cases are plea bargained with no trial. This is a facet of criminal practice that contributes to all counsel not being equal.

        1. Billy Bob

          You people– after reading this thread–are all insane. I’ve been in court, sat at the defense table. I’ve witnessed two trials for murder, and followed dozens of other trials nationwide. I’ve talked to dozens of lawyers about this and that. I’ve never met a lawyer who did not interrupt me in the first thirty seconds of conversation, and then start talking over me nonstop. It’s totally nuts. You people are insane. Your judicial enterprise is kaput,… not the Amerikan way, no way Jose. Heads, you win; tails we lose. This is unacceptable in a free and openly democratic society on this July 4th. Trust. (And I’m a “privileged white guy” who spells better than the host.) Put that in your smoke and pipe it, Barleycorn-breath.

          1. B. McLeod

            Well, I don’t think we’re insane lad (at least not the most of us). We take the system we’ve been given, and we try to do the best with that, and sometimes it may seem insane, and sometimes it may even be insane, but it’s not because lawyers in the system aren’t trying.

  3. Mark M.

    Great post and very interesting contributions. This is as good for legal education as talking shop over libations in the Partner’s office after the last client has been seen. Thanks to all, and happy 4th.

    1. SHG

      If I could figure out how to serve libations over the interwebz, I would. I definitely would. Isn’t there an app for that?

    2. Mario Alfredo Machado

      What does the Partner’s office have to offer, in terms of libations?

      I’ll settle for a nice boilermaker.

      Happy 4th, Mark.

  4. Mark M.

    Uhm, sometimes, when you have tired-head and can’t read another page of transcript from a trial that closely resembles a train wreck, one may turn for lighter fare to SJ; and perhaps enjoy an adult beverage while doing so…

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