On February 29, 2012, the Fourth Circuit affirmed the lower court’s decision to deny Frank Aidoo, the defendant, the benefit in sentencing espoused in 18 U.S.C. 3553(f). Commonly referred to as the “safety valve,” section 3553(f) allows a judge to sentence a defendant to a term of imprisonment below a statute’s mandatory minimum. For example, Mr. Aidoo pleaded guilty to one count of 21 U.S.C. 952 after he was caught trying to import nearly one kilogram of heroin into the United States. The mandatory minimum sentence for the importation of heroin is 60 months. However, if one qualifies for the safety valve, a judge can sentence a term of imprisonment below the minimum.

To qualify for this reduced sentence a defendant must (1) “not have more than 1 criminal history point, as determined under the sentencing guidelines,” (2) must not have used “violence or credible threats of violence or possess a firearm or other dangerous weapon . . . in connection with the offense,” (3) the offense must not have resulted in the “death or serious bodily injury to any person,” (4) the defendant must not have been the “organizer, leader, manager, or supervisor of others in the offense,” and (5) the defendant “must have 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.”

The burden of proving whether the safety valve applies in a particular case belongs to the defendant. According to the court’s analysis, a defendant must demonstrate by a preponderance of the evidence that he has satisfied all five elements of the safety valve. At issue in this case was whether Mr. Aidoo satisfactorily met this burden with respect to the fifth element of section 3553(f). Unfortunately, the judge in the trial court did not think so and on appeal the Fourth Circuit agreed with the trial judge.

Mr. Aidoo claimed that because he provided a story to the Government that on its face satisfied the fifth element, that the burden then shifted to the Government to disprove the truth of this story. The Fourth Circuit rejected this argument. It opined that the court may use its own reasoned assessment of the defendant’s statements and credibility before it requires the Government to furnish independent rebuttal evidence. In essence, the court has stated that a sentencing judge can reasonably determine the veracity of defendant’s statement made to satisfy the fifth element without requiring any further evidence from the Government to disprove the defendant’s statement. The Fourth Circuit also mentioned that if they had held the opposite ruling in this matter, the burden of proving the fifth element would effectively be turned on its head. This is because the government would then be burdened with disproving any story furnished by the defendant, no matter how implausible that story may be.

The key takeaway from this case for defendants is that defense counsel should furnish to the sentencing judge as much evidence as is available that demonstrates the truthfulness of the defendant’s information. As such, defense counsel should request from the court sufficient time to gather such evidence. If defense counsel requires more time to gather evidence than is allotted by the court, then counsel should make his or her objection known on the record. By making this objection on the record counsel will preserve this issue for appeal in the event of an unfavorable ruling.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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