Safety-Valve Application: Sixth Circuit Joins Seven Other Circuits

In United States v. Barron, et al. (18-5222-5515), the Sixth Circuit thoroughly analyzed the second prong and fifth prong of the safety valve guideline. (See U.S.S.G. § 5C1.2). 

Second Criterion of § 5C1.2

The Court found that a defendant is not precluded from meeting the second prong simply because a §2D1.1(b)(1) firearm enhancement was applied.  Also, the Sixth Circuit joined seven other circuits in finding that possession of a firearm by a co-conspirator does not always render a defendant ineligible for relief under the second criterion. (See U.S.S.G. §5C1.2).

The Court held that the  language for the safety valve application (U.S.S.G § 5C1.2(a)(2)) limits consideration to the defendant’s own actions; whereas the firearm enhancement under U.S.S.G. § 2D1.1(b)  omits any reference to the defendant and uses a passive voice – requiring enhancement if the firearm was “possessed.” Allowing a defendant to be charged with possession of another’s gun is contrary to congressional policy for safety valve application, which is “to permit courts to sentence less culpable defendants to sentences under the guidelines, instead of imposing mandatory minimum sentences.”   However, if the defendant induced another co-conspirator to possess a firearm, the application does not apply. (See U.S.S.G. § 5C1.2 cmt. n.4).

Fifth Criterion of § 5C1.2

To meet this fifth prong,  a defendant may have to do more than merely answer all questions posed by the government, because the “provision ‘clearly require[s] an affirmative act by the defendant truthfully disclosing all the information he possesses concerning his offense or related offenses.’”  However, the information does not have to be helpful to the government since “the individuals for whom the safety valve was directed will not have useful testimony to provide because of their relatively low position in the criminal enterprise.”  

The government may challenge whether a defendant has met this criterion by pointing out inconsistencies or implausibility.   Yet, “the government’s lack of confidence in a proffer is insufficient, in and of itself, to justify a denial of access to the safety valve.” Further, a sentencing court may not find a defendant was not truthful ‘solely on speculation, devoid of any factual support.”

This is an excellent opinion to thoroughly read if defense counsel is litigating an issue concerning whether § 5C1.2 applies.  Additionally, the Sixth Circuit briefly discussed the significant risk for jury confusion when a law enforcement officer testifies at trial as a fact witness and expert witness in the same case.