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Fifth Circuit: Safety Valve Isn’t Up to the Government


by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held on August 21, 2020, that it’s not up to the Government to determine whether a defendant qualifies for a reduced sentence under the safety valve provisions of 18 U.S.C. § 3553(f). Instead, the Court reminded, it is up to the district court to make that decision based on evidence and not mere speculation by the Government.

Yuniel Lima-Rivero pleaded guilty to conspiracy to possess methamphetamine with intent to distribute under 18 U.S.C. § 856 and was sentenced to 15 years in federal prison without parole.

At sentencing, the U.S. District Court for the Northern District of Texas rejected Lima-Rivero’s request for application of the safety valve allowing a lower sentence. The Government argued that he failed to qualify for the safety valve because he did not truthfully provide all information known about the offense. Indeed, at sentencing, a DEA agent testified that Lima-Rivero was “less than forthcoming regarding many things.”

The district judge said, “I think it’s up to the government to determine if the defendant has complied with” the safety valve provisions. “I don’t know how you get around that,” the judge said and denied Lima-Rivero’s request for the safety valve.

On appeal, the Fifth Circuit reiterated its rule that a district court “is not bound by the government’s determination of whether a defendant failed to provide truthful information” for the safety valve. Under 18 U.S.C. § 3553(f)(5), one of the five criteria required for a reduced sentence under the safety valve is that a defendant must provide “all information and evidence [he has] concerning the offense or offenses that were part of the same course of conduct or common scheme or plan.”

The fact that the DEA agent testified Lima-Rivero was “less than forthcoming” wasn’t enough to cure the district court’s “repeated misstatements of the law,” the Court said. First, it noted that it is the district court’s responsibility to determine the facts for analysis under § 3553(f)(5), not the Government’s. The DEA agent’s testimony was not the determining factor.

Second, the DEA agent’s testimony was “mere speculation,” the Court said. “Such testimony must be supported with specific factual findings or easily recognizable support in the record,” the Court instructed. Had the agent offered evidence to back his statements, like Lima-Rivero’s refusal to answer question, for example, this would not have been speculative, the Court explained.

The agent “provided no specifics” regarding Lima-Rivero’s untruthfulness, “and no facts supporting his truthfulness are obvious in the record,” the Court concluded. The district court therefore erred in relying on the Government’s “unsupported testimony” to deny the safety valve.

Accordingly, the Court vacated Lima-Rivero’s sentence and remanded for resentencing. See: United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020). 

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Related legal case

United States v. Lima-Rivero



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