NACDL

This article is intended for the defense attorney whose client is entitled to get the benefits of the safety valve — no mandatory minimum, and a two-offense level guideline reduction — but who is opposed to (or afraid of) “cooperating”¹ with the government. It was prompted by the author’s experience in several cases where defense lawyers failed to vigorously press for the safety valve because the government claimed that the clients failed to fully and honestly proffer at a safety valve debriefing, or where the defense attorney failed to adequately explain to the client the purpose and scope of such a debriefing.

For better or worse, many clients choose to gain sentence reductions by cooperating with the government in order to obtain the benefits of a government motion for downward departure under § 5K1.1 (5K) of the U.S. Sentencing Guidelines (USSG), and 18 U.S.C. § 3553(e). A smaller percentage of those clients seeking 5K and § 3553(e) reductions also qualify for a “safety valve” redu