FREQUENTLY ASKED QUESTIONS CONCERNING §5C1.2

1. Question: When does the new guideline 5C1.2 (Limitation on Application of Statutory Minimum in Certain Cases), commonly referred to as the "safety valve amendment," take effect?

Answer: Guideline 5C1.2 takes effect on September 23, 1994, the same date as the effective date for the change to the statute. The safety valve amendment is to be considered for sentences imposed on or after September 23, 1994.

2. Question: Can §5C1.2 be applied retroactively?

Answer: No. Although a retroactivity provision was considered by Congress, it was not retained as part of the law enacted.

3. Question: Must the prosecutor recommend to the court that a defendant be sentenced under the provisions of §5C1.2 in order for it to apply?

Answer: No. While the guideline and statute state that the court shall provide the government with "an opportunity to make a recommendation" before finding that the safety valve applies (see 18 U.S.C. § 3553(f) and §5C1.2, Application Note 8), the court is not bound by the government's recommendation. Unlike the substantial assistance departure provisions of the statute and guidelines, the court can determine that the statutory minimum penalties do not apply without a motion from the government or even without the government's recommendation or concurrence.

4. Question: When the court finds that the defendant meets the criteria set forth in §5C1.2 and imposes less than the mandatory minimum, is the sentence considered a departure?

Answer: No. Sentencing pursuant to §5C1.2 is not a departure. In effect, the safety valve eliminates any mandatory minimum sentence and the court proceeds through the process of guideline application as if sentencing any other defendant not subject to a mandatory minimum sentence.

5. Question: Does the safety valve provision replace the five-year mandatory minimum sentence with a two-year mandatory minimum sentence?

Answer: No. Mandatory minimum sentences for the listed drug offenses are eliminated entirely when the court finds that the defendant meets the criteria listed in the statute and §5C1.2. The Violent Crime Control and Law Enforcement Act of 1994 contains a directive to the Sentencing Commission at Section 80001(b)(1)(B) to establish a "guideline range in which the lowest term of imprisonment is at least 24 months" for a defendant who would otherwise be subject to a mandatory minimum sentence of five years. This reference to 24 months is an instruction to the Commission; it is not a mandatory minimum sentence that binds the court. (Note that typically the least culpable defendant (i.e., one who has a minimal role and fully accepts responsibility) otherwise subject to a five-year mandatory minimum will have a guideline range of 30-37 months. Consequently, the Commission believes the current drug guideline adequately complies with this directive.)

6. Question: Does §5C1.2 apply to both five- and ten-year mandatory minimum sentences?

Answer: Yes. Mandatory minimum sentences for applicable offenses, regardless of the length, no longer apply in cases where the court finds that the criteria listed at §5C1.2 are met.

7. Question: If §5C1.2 is applicable, can the court depart from the applicable guideline range?

Answer: Yes. Just as in other cases where there is no mandatory minimum sentence, the court can depart above or below the applicable guideline range if it finds an aggravating or mitigating circumstance not adequately considered by the Commission (see §5K2.0, 18 U.S.C. § 3553(b)).

8. Question: If the court finds that the defendant meets the criteria for §5C1.2, do the mandatory minimum terms of supervised release listed at 21 U.S.C. § 841 apply?

Answer: No. If the safety valve applies, there are no mandatory minimum terms of imprisonment or supervised release. Note that the court is required to impose the guideline term of supervised release pursuant to §5D1.2(b) unless there is reason to depart.

9. Question: Will the safety valve be available to defendants who are "resentenced" upon remand?

Answer: It may depend on the court order. Whether the provisions of 18 U.S.C. § 3553(f) apply to a defendant who is being "resentenced" after an appeal or other successful challenge to a prior sentence is a legal question for the court. The Commission believes, however, that courts are most likely to conclude that the plain language of §80001(c), which states that the provision shall apply to "all sentences imposed" on or after the September 23, 1994, effective date, evidences a congressional intent that the safety valve apply to resentencing proceedings. Consequently, in a case in which the previously imposed sentence, or the imprisonment component of that sentence, has been or becomes vacated or voided, section 3553(f) would appear to apply to an otherwise qualified defendant when that defendant is again before the district court for imposition of a new sentence (i.e., resentencing). However, in certain cases an appellate court may remand expressly for a limited purpose (e.g., to reconsider the amount of the fine imposed). In the case of a remand for a limited purpose, the specific wording of the appellate order may determine whether the court has the authority to apply the new statutory provision on resentencing.