First Step Act Safety Valve Changes

What Actually Changed (And the Guidelines Gap Nobody Explains)

You’ve probably heard that the First Step Act “expanded” safety valve eligibility for federal drug defendants. It passed in December 2018 with bipartisan support, and articles everywhere describe it as the most significant criminal justice reform in a generation. More defendants can now qualify for sentences below mandatory minimums. More people have a chance at individualized sentencing rather than being locked into drug-weight calculations.

That’s the narrative. The reality is more complicated. The First Step Act did expand the safety valve – but not by as much as you might think, and there’s a technical problem with how the law was written that still causes confusion today. Then in 2024, the Supreme Court’s Pulsifer ruling narrowed the expansion even further. Understanding what actually changed – and what didn’t – is critical if you’re facing federal drug charges and hoping for safety valve relief.

This article breaks down the before and after of the First Step Act’s safety valve changes, explains the guidelines gap that trips up defendants and even some attorneys, and shows you where the law stands today after Pulsifer.

The Old Safety Valve: What the Law Required Before 2018

OK so to understand what the First Step Act changed, you need to understand what the safety valve looked like BEFORE December 2018. The rules were much stricter.

Under the old 18 USC 3553(f), the criminal history requirement was simple: you couldnt have more than one criminal history point. Period. One point or zero. Any more then that, and you were automaticaly disqualified from safety valve relief, no matter how minimal your role in the offense or how non-violent your background.

Think about what that means. One prior misdemeanor with a sentence of 60 days or more could give you a criminal history point. Two such misdemeanors, or one minor felony, and your out. The safety valve was designed for first-time offenders with essentialy no criminal history at all.

The Sentancing Commission reported that before the First Step Act, about 36% of defendants facing mandatory minimum drug sentences recieved safety valve relief. That means almost two-thirds of defendants – 64% – were locked into mandatory minimums regardless of there individual circumstances. Alot of those defendants had minor criminal histories that disqualified them under the strict one-point limit.

What the First Step Act Actually Changed

On December 21, 2018, the First Step Act became law. For the safety valve, it made a specific change to the criminal history requirement. Instead of the old one-point limit, the new law says you dont qualify if you have:

• More than 4 criminal history points (excluding 1-point offenses)
• A prior 3-point offense
• A prior 2-point violent offense

This was suposed to expand eligibility significantly. Defendants with 2, 3, or 4 total criminal history points – who were automaticaly disqualified under the old law – could now potentialy qualify. As long as they didnt have a 3-point prior or a violent 2-point prior, the door was open.

Heres the statistical impact: After the First Step Act, about 43% of defendants facing mandatory minimums recieved safety valve relief, up from 36% before. Thats roughly a 7 percentage point increase – real progress, but not the dramatic expansion some people expected.

Why wasnt the increase bigger? Two reasons. First, alot of defendants still had disqualifying criminal histories even under the expanded criteria. Second – and this is were Pulsifer comes in – the Supreme Court eventualy interpreted the new language narrowly, holding that having ANY ONE of the three disqualifiers kicks you out. More on that below.

The Guidelines Gap: What Nobody Explains

OK so heres were things get technicaly confusing, and were even some attorneys get tripped up. The First Step Act changed the STATUTE – 18 USC 3553(f). But it did NOT change the SENTENCING GUIDELINES.

What does that mean practicaly? The safety valve has two benefits: (1) allowing sentances below mandatory minimums, and (2) a 2-level reduction in offense level under the guidelines. The statute governs the first benefit. The guidelines at USSG §5C1.2 govern the second benefit.

Heres the problem. The guidelines at §5C1.2 still reference the OLD criminal history language – the “not more than one criminal history point” requirement. The Sentancing Commission never formally amended the guidelines text to match the First Step Act changes.

The Commission issued guidance clarifying that defendants who meet the new statutory criteria should get the 2-level reduction. But the actual guidelines text remained unchanged. This creates confusion when judges, prosecutors, or probation officers look at the guidelines and see language that dosnt match the current statute.

In practise, most courts apply the First Step Act criteria to both the mandatory minimum relief AND the 2-level reduction. But if your presentance report or sentancing discussion references the old guidelines language, you need your attorney to clarify that the statutory change controls.

Make sure your attorney understands the diffrence between the statutory safety valve and the guidelines safety valve. They should be treated the same post-First Step Act, but the text is inconsistant.

The Effective Date Trap

This is a detail that catches some defendants off guard. The First Step Act’s safety valve expansion only applies to convictions entered AFTER December 21, 2018. Not offenses commited after that date. Not charges filed after that date. Convictions.

If you commited a drug offense in 2017, were charged in 2018, but werent convicted until 2019, the First Step Act criteria apply to you. But if you were convicted in early December 2018 – even if your offense was recent – the old one-point rule applied.

The statute is clear: “An offender whose conviction for a covered offense is entered after the date of enactment of this Act shall be sentenced…” The conviction date is what matters.

If your case was pending during the transition period (late 2018), this timing issue might have been critical. Today, almost all pending cases involve convictions well after the effective date, so its less of an issue. But if your looking at old case law or trying to understand why a similar defendant from years ago got diffrent treatment, the effective date might be why.

How Pulsifer Narrowed the Expansion

Guess what? The First Step Act expansion was larger on paper then it turned out to be in practise. Thats because of how the Supreme Court interpreted the new language in March 2024.

The First Step Act created three criminal history disqualifiers: (A) more than 4 points, (B) a prior 3-point offense, and (C) a prior 2-point violent offense. The statute says you dont qualify if you have “more than 4 criminal history points… AND… a prior 3-point offense… AND… a prior 2-point violent offense.”

See that word “and”? Courts disagreed about what it meant. Some said you needed ALL THREE disqualifiers to be kicked out. Others said having ANY ONE of them disqualified you. The First Step Act didnt resolve this ambiguity – it just created a new set of criteria without clarifying how they interact.

In Pulsifer v. United States, the Supreme Court chose the narrower reading. Having any single disqualifier kicks you out. So a defendant with just one prior 3-point offense – even with no violent history and fewer than 4 total points – is disqualified.

Justice Gorsuch’s dissent accused the majority of defeating the First Step Act’s purpose. He estimated that around 10,000 defendants who would have qualified under the “all three” reading are now disqualified under the “any one” reading. The First Step Act’s expansion, meant to help more defendants, was significanly narrowed by judicial interpretation.

Thats the reality today. The First Step Act expanded the safety valve compared to the old one-point rule, but not by as much as Congress may have intended.

Who Actually Benefits Now

After the First Step Act expansion AND the Pulsifer narrowing, heres who can realistically qualify for safety valve relief today:

Clear Qualifiers:

• First-time offenders with no criminal history – always qualified, still qualify
• Defendants with only 1-point offenses (minor misdemeanors) – now qualify since 1-point offenses are excluded from the count
• Defendants with 2-4 criminal history points from 2-point non-violent offenses, with no 3-point priors – newly qualify post-First Step Act

Clear Disqualifiers:

• Any defendant with more than 4 criminal history points (excluding 1-point offenses) – out under (A)
• Any defendant with a prior 3-point offense (typically a felony with 13+ months sentence) – out under (B)
• Any defendant with a prior 2-point violent offense – out under (C)

The defendants who benefited most from the First Step Act are those with moderate criminal histories consisting of non-violent, non-felony offenses. If you have multiple misdemeanor convictions that add up to 3 or 4 points, but no single offense was a 3-point felony and nothing was violent, your in the sweet spot that the First Step Act opened up.

The Other Four Criteria Still Apply

All this focus on criminal history sometimes makes defendants forget: theres four other criteria you have to meet. The First Step Act only changed the first one. The other four remain unchanged:

No violence or weapons – You cant have used violence or threats, and you cant have possesed a firearm in connection with the offense.

No death or serious injury – The offense cant have resulted in death or serious bodily injury.

No leadership role – You cant be someone who organized, led, managed, or supervised others in the offense.

Truthful cooperation – You have to truthfully provide all information about the offense to the government before sentancing.

Meeting the expanded criminal history criteria dosnt help you if you fail any of these. You have to clear all five hurdles.

The Two-Level Reduction: Still Available

One thing the First Step Act definatly preserved is the 2-level reduction under USSG §2D1.1(b)(18). If you qualify for safety valve, your offense level drops by two levels. That translates to real time off your sentence.

Look, in federal sentancing, two offense levels can mean alot. Depending on were you are on the sentancing grid, it might be 6 months, it might be a year, it might be more. Combined with being able to go below the mandatory minimum, the total benefit of safety valve can be substantial.

Some defendants dont realize that the 2-level reduction applies even if your guidelines range is already below the mandatory minimum. You might be facing a 5-year mandatory minimum, but your guidelines range (based on drug quantity and criminal history) might calculate to 37-46 months. In that situation, the mandatory minimum relief dosnt help you – your already below the floor. But the 2-level reduction does help. It drops your guidelines range even lower.

Common Misunderstandings About the First Step Act

1. “The First Step Act Made Safety Valve Easy to Get”

Not true. It expanded eligibility, but the requirements are still strict. You still need minimal criminal history (just slightly more then before), and you still have to meet four other criteria including full cooperation. Its easiER to qualify, not easy.

2. “My Case Was Before 2018, So the Old Rules Apply”

Not necessarily. What matters is when your conviction was entered, not when the offense occured. If you were convicted after December 21, 2018, the First Step Act criteria apply even if your offense was years earlier.

3. “I Read That I Can Have Criminal History and Still Qualify”

You can have SOME criminal history, but not certain types. One 3-point prior disqualifies you. One 2-point violent prior disqualifies you. More than 4 points (excluding 1-point offenses) disqualifies you. The expansion has limits.

4. “The Guidelines Say I Need One Point or Less”

The guidelines text wasnt updated, but the First Step Act statutory changes control. If your seeing old language in the guidelines, the statute trumps it. Make sure your attorney clarifies this.

What Happens Next

If your facing federal drug charges today, the First Step Act expansion is part of your legal landscape – but so is Pulsifer. Heres what you need to do:

Get your criminal history calculated carefully. Not just total points, but categorizations: Which priors are 3-point offenses? Which are 2-point violent? These categorizations matter more then raw point totals after Pulsifer.

Understand the full picture. Safety valve eligibility is just one piece. You also need to evaluate the other four criteria, consider wheather cooperation makes sense, and look at alternative paths like substantial assistance if safety valve isnt available.

Federal sentancing is complicated. The First Step Act helped, but it didnt solve everything. Get an attorney who understands both the expansion AND its limitations.

The law keeps evolving. Make sure your defense strategy reflects were the law is today, not were it was in 2018 or 2019.