Ninth Circuit Announces All 3 Subsections Must Be Satisfied to Deny Safety-Valve Relief Under 18 U.S.C. § 3553(f)(1)
by Dale Chappell
In a case of first impression under the First Step Act, the U.S. Court of Appeals for the Ninth Circuit held that the word “and” in the three exclusion provisions of the so-called “safety valve” relief provided for in 18 U.S.C. § 3553(f) that permits district courts to go below the mandatory minimum sentence for certain drug offenses is conjunctive, meaning that all three subsections of § 3553(f)(1)—(A), (B), and (C)—must be met in order to be denied safety-valve relief.
The First Step Act amended the safety-valve provisions under § 3553(f)(1) to say that a defendant is eligible for relief unless the defendant satisfies subsections (A), (B), and (C).
Eric Lopez was a low-level, nonviolent drug offender who pleaded guilty to importing a controlled substance at the U.S. border in violation of 21 U.S.C. §§ 952 and 960. His conviction triggered a mandatory-minimum sentence of five years. See 21 U.S.C. § 960(b)(2)(H). When it came time for sentencing, he argued that the amended safety valve under § 3553(f) should apply to him because he did not satisfy all of the listed exclusions for safety-valve relief. Specifically, he conceded that his criminal history did meet one of the exclusion criteria, but it did not meet all three of the criteria to prevent him from obtaining safety-valve relief. The U.S. District Court for the Southern District of California agreed with Lopez’s position and sentenced him to one year below the mandatory minimum five years required for the offense.
On appeal, the Government made several arguments as to why the district court’s interpretation of the safety valve should have concluded that the “and” ought to be treated as “or” and sentenced Lopez under the mandatory minimum sentencing regime, i.e., denied safety-valve relief.
The Court disagreed and upheld the district court’s sentence, stating: “Applying the tools of statutory construction, we hold that § 3553(f)(1)’s ‘and’ is unambiguously conjunctive. Put another way, we hold that ‘and’ means ‘and.’”
As amended by the First Step Act, § 3553(f)(1) states that a defendant qualifies for safety-valve relief if he “does not have” the following: “(A) more than 4 criminal history points ... (B) a prior 3-point offense ... and (C) a prior 2-point violent offense.” [emphasis supplied] That is, a defendant is barred from the safety valve only if he has all three of those conditions in his criminal history.
Lopez had a prior conviction more than a decade ago for spray painting a building with graffiti. He was sentenced to three months in jail for that offense and was sentenced to another 13 months after he violated his probation. That conviction qualified as a 3-point prior offense under subsection (B) of the safety valve provision. But he did not have any other prior convictions that would satisfy subsections (A) and (C). Finding that the word “and” in the list of disqualifying conditions was not ambiguous, the district court granted safety valve relief. The Court of Appeals agreed but for different reasons in a lengthy opinion on statutory interpretation rules.
The Court stated that a list of exclusions joined with the word “and” is called a “conjunctive negative proof” or a list of prohibitions stating “not A, B, and C” requires a person to prove that he “does not meet A, B, and C, cumulatively,” the Court explained. There are several canons of statutory interpretation, and the Court discussed and applied many of them in its opinion.
However, the Court stated that the question at issue can actually be resolved by simply reading the text of the statute since if the statute’s language is plain that ends the inquiry. See Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). Statutory terms have their “ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37 (1979). After a review of various dictionaries, the Court concluded that the plain and ordinary meaning of “and” in the statute is conjunctive, meaning that it “joins a list of conditions, it requires not one or the other, but all of the conditions.”
The Government even conceded that the plain and ordinary meaning of “and” in the statute is conjunctive. Nevertheless, it still urged the Court to rule that the first exclusion criterion under § 3553(f)(1)—subsection (A)—is “surplusage” or extra wording that isn’t necessary for the statute to have effect. In fact, the Government had recently convinced the Eleventh Circuit to deny safety-valve relief based on this argument. United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021). However, the Ninth Circuit wasn’t swayed, noting that even if subsection (A) were surplusage, which the Court thoroughly refuted in the opinion, the Court explained that the canon against surplusage is merely a rule of thumb that doesn’t supersede a statute’s plain meaning, which the Court already determined. See Lamie v. United States Tr., 540 U.S. 526 (2004).
In addition, the Court stated that a conjunctive reading of § 3553(f)(1) reflects Congress’ intent when it amended the safety valve via the First Step Act “to give district courts discretion to avoid situations in which drug offenders must receive a sentence that is unduly harsh because of a mandatory minimum.” A conjunctive reading of the statute promotes the “spirit” of the changes by Congress to the safety valve, reasoned the Court. “Dissatisfaction with a statute’s policy results is an insufficient ground to rewrite Congress’s clear and unambiguous text,” the Court observed.
The Court summed up its analysis and conclusion as follows: “Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage result in only one plausible reading of § 3553(f)(1)’s ‘and’ here: ‘And’ is conjunctive. If Congress meant § 3553(f)(1)’s ‘and’ to mean ‘or,’ it has the authority to amend the statute accordingly. We do not.”
Accordingly, the Court affirmed the district court’s sentence. See: United States v. Lopez, 998 F.3d 431 (9th Cir. 2021).
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