US v. Salazar, No. 22-50060 (3-8-23)(Tallman w/Schroeder & Ikuta).  This is a significant “safety valve” decision. On the government’s appeal, the 9th vacated a sentence and remanded for resentencing because the sentencing court did not make a finding under 18 U.S.C. § 3553(f)(5) for “safety valve” relief from a mandatory minimum sentence that the defendant had complied with the statutory proffer requirement. The defendant relied upon the lengthy factual basis in the plea agreement (conspiracy to distribute drugs in the LA County Jail system) to argue he gave all the information he had.  The 9th writes that the court, on the record, could not assume the defendant had truthfully disclosed all the information he had about the drug conspiracy.  The finding it would have been “futile” is not supported and the court’s conclusion that the prosecution already had all the information the defendant could have provided did not excuse or obviate the need for this finding. There is not a “implicit proffer” or “futile exception” to the statutory requirement of a proffer. In practical terms, the defendant needs to show they met or gave all the truthful information through an oral or written proffer or a like opportunity. The plea’s factual basis on this record does not suffice.

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/08/22-50060.pdf