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Eighth Circuit Affirms Denial of Safety Valve and Imposition of Ten-Year Sentence
Mar 27th, 2014

It is unlikely that today Alfonso Vega Diaz would face a mandatory minimum sentence under A.G. Holder’s new drug charging policy (no violence, weapons, minors, serious injury or death; not an organizer, leader or supervisor; no “significant ties” to “large-scale drug trafficking organizations, gangs, or cartels;” and no or minimal criminal history). Unfortunately for Diaz, however, his indictment and guilty plea to meth distribution occurred before that policy was announced. Diaz’s only means of avoiding the devastating ten-year mandatory minimum he faced was to provide a truthful proffer to the government of his apparently minor role in the offense, thus satisfying the “safety valve” that operates as a escape hatch for low-level, first-time offenders. Diaz’ initial proffer to the case agent, however, did not go well. Nor did his next one – under oath at his sentencing. Finding him incredible, the sentencing judge denied Diaz safety valve relief and imposed the mandatory minimum sentence of ten years, a heavy sentence indeed for someone whose offense conduct consisted of several hand-to-hand sales and who reportedly was a meth addict himself. The Eighth Circuit affirmed in United States v. Diaz, in an unpublished decision issued on March 25, 2014, finding no error in the sentencing court’s factual conclusions.

Earlier this week, I blogged about a case where a judge was forced to impose the mandatory minimum ten-year sentence because the defendant had failed to satisfy another of the safety-valve criteria: no more than one criminal history point. There is no wiggle room when it comes to criminal history. One either meets that prerequisite or not based on a fairly mechanical analysis.

A safety valve proffer is different. Satisfying this element is (theoretically, at least) within the client’s control. What can defense lawyers do to avoid a safety valve proffer going south? The answer is an elementary one: in depth investigation and careful preparation. Depending on the prosecutor or district, one might be able to proceed by attorney proffer first or after the presentence report has issued, so the problems in the client’s story can be identified and rectified before the client speaks to government agents. It is not uncommon for defendants to minimize their wrongdoing in their initial meetings with prosecutors. It is the rare cooperating witness, for example, who gives the full story on the first occasion. Prosecutors will frequently cut potential cooperators some slack because they need them. Less so with defendants who are simply seeking safety valve – often a one-way street in the defendant’s favor. Against that backdrop, the defendant and defense counsel need to work hard to get the safety valve proffer right the first time. It is never optimal to be trying to secure the safety valve from the judge at sentencing over the government’s objection.

 
 

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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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