Cooperation and the Federal “Safety Valve”

Reynaldo Ortiz pleaded guilty to conspiracy to possess heroin with the intent to distribute under 21 U.S.C. §§ 841(a)(1), 846, and received the statutory minimum prison sentence of 10 years. Reynaldo argued that his cooperation with law enforcement after his arrest qualified him for “safety valve” relief from the statutory minimum.

The safety valve provision of the Sentencing Guidelines lets the sentencing Judge ignore the mandatory minimum if certain conditions are met:

§5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

(a)Except as provided in subsection (b), in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth below:

§5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain Cases

(a)Except as provided in subsection (b), in the case of an offense under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth below:

(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.

The district court decided that his cooperation did not amount to the full and truthful proffer of information required for application of the safety valve.

Ortiz argued that the district court should apply § 5C1.2, which allows for imposition of a sentence “without regard to any statutory minimum sentence” if the court finds that the defendant satisfies the five criteria in 18 U.S.C. § 3553(f).

Those criteria include that “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,”

They also include that “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,”

The government argued that § 5C1.2 did not apply because Ortiz used threats of violence against the informant’s family and did not “come in to the government’s office and give a full safety valve proffer.”

The government explained that it suspected that Ortiz brought another man with him during his visit to the informant’s family, and that the other man called someone in Mexico who threatened to kill the informant and his family if the truck was not returned.

Ortiz argued that he had provided everything he knew in his post-arrest statements. The district court asked the government what other information it would look for in a full proffer, and the prosecutor answered that he could not be sure because Ortiz never came in for additional questioning.

The government added that it remained unclear who the drugs were supposed to go to and who all was involved in arranging the drug transaction.
The district court concluded that, regardless of threats Ortiz may have made, he had not “proffered the type of information that 5C1.2 contemplates.”

The court explained:

“It isn’t just cooperation. We get a lot of cooperating folks in the sense that they … could wear a wire, they could arrange a deal or get some information about something that happened. They still don’t get the safety valve because they haven’t actually proffered their entire knowledge of the offense. Saying when you get arrested, you know, ‘I’ll cooperate’ or even shortly after, ‘I’ll cooperate,’ that’s a lot different than coming in and going through all the matters that [the prosecutor] just mentioned. So I cannot say there’s a safety valve here.”

The court rejected application of the safety valve and imposed the statutory minimum of 120 months’ imprisonment.

The Court of Appeals held to be eligible for safety-valve relief, Ortiz had to prove by a preponderance of the evidence that he provided the government with “all information” he knew about his offense or related to the same course of conduct or common scheme or plan. “A defendant is not entitled to the safety valve when he provides only limited information instead of complete disclosure.

Ortiz presented no persuasive reason to find clear error. The district court gave an explanation of why it found that Ortiz had offered some cooperation but did not provide a full proffer of all information he knew.

Ortiz’s assertion that he does not have additional information is not enough to undermine the court’s finding so the district court’s decision was affirmed.

Case decided January 12, 2015.

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