The Safety Valve Provision & US v. Garcon

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Written by Nicole M. Kaplan

In the bad old days, if your client had more than one criminal history point, they were not eligible for safety-valve relief. Luckily, Congress amended the statute in 2018 as part of the First Step Act. Now, under 18 U.S.C. § 3553(f)(1), a client is eligible for safety-valve if:

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines[.]

The government has argued that Congress really meant that having any one of the three listed priors disqualified a client from safety-valve eligibility. In other words, said the government, “and” means “or.” The en banc Eleventh Circuit has now spoken, however, and held that “and” truly means “and.” US v. Garcon, 54 F.4th 1274, 1276 (11th Cir. 2022) (en banc). Textualism for the win!

So, if the client has two two-point priors that are not for violent crimes, and has a couple (or several) one-point convictions, they are still eligible for safety-valve (as long as they meet the other criteria). “And” means “and”!

Stay tuned for updates once the Sentencing Commission’s proposed guideline amendments take final form in May. Under the proposed amendments to the safety-valve guideline, U.S.S.G. § 5C1.2, the Commission adopts Garcon’s preference for “and.” Safety-valve eligibility would then result in an automatic two-level reduction under the drug guideline, U.S.S.G. § 2D1.1(b)(18). But the Commission has proposed two options for that related provision in subsection (b)(18). One of those would mirror the statutory language. One would adopt the ”or” standard proposed by the Garcon dissent. Depending on which option the Commission chooses, the timing of the sentencing hearing or which Guidelines Manual is used could significantly impact the client’s guideline range.

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