Federal Cases: “But I’ve Never in Trouble Before”


When my federal criminal defense clients and I are discussing the possible punishment (using the sentencing guidelines as, well, guidelines) that they might receive if they are convicted, they are often shocked. The sentences seem severe for first-time offenders. “But Mark,” they often say, “I’ve never been in trouble before. Can we get the sentence reduced because I’ve never been in trouble before?”

The sentencing guidelines presume that the person being sentenced has never been in trouble before. So, generally, do the statutory minimums. When we say that the statutory minimum for possession with intent to deliver more than five kilograms of cocaine is ten years, we are saying that the appropriate penalty for somebody who has never been in trouble with the law — indeed, has never broken the law — until becoming involved in a smallish cocaine conspiracy is ten years in prison, regardless of his role in the offense.

There are two narrow circumstances in which a person convicted of a 5-plus kilogram cocaine conspiracy in federal court can avoid the ten-year statutory minimum. The first is to cooperate with the goverrnment, providing “substantial assistance” (and only the government gets to decide what substantial assistance is in a particular case).

The second is to qualify for the “safety valve.” An accused in a drug case may be eligible for the safety valve if:

(1) she does not have more than 1 criminal history point;


(2) she 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) she was not an organizer, leader, manager, or supervisor of others in the offense 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, she 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. 18 U.S.C. § 3553(f) and U.S.S.G.M.§ 5C1.2.

The two effects of safety valve eligibility are (1) that the statutory mandatory minimum does not apply; and (2) that the accused receives a two-point downward adjustment to her sentencing-guidelines offense level. (A two-level downward adjustment is generally about a 20% sentence decrease.)

So the draconian sentences of the federal statutes and sentencing guidelines are for people who have never been in trouble before. People who have never been in trouble (at least, not serious trouble — a single conviction with a less-than-six-month sentence gives a person one criminal history point) before and satisfy the other four safety-valve criteria might shorten their sentences a bit, but the tenor of the federal sentencing guidelines and statutes is that people who have been in trouble before get longer sentences. Criminal history is punished; a lack of criminal history is not rewarded.


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