In United States v. Lopez, --- F.3d ---, No. 19-50305 (9th Cir. 2021), the Court affirmed the district court's (Judge Lorenz of the SDCA) interpretation of the amended safety valve provision.
[The safety-valve provision allows a district court to sentence a criminal defendant below the mandatory minimum for particular drug offenses if a defendant meets the criteria in § 3553(f)]
In the First Step Act of 2018, Congress amended § 3553(f)(1), which focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines.
As amended, § 3553(f)(1) provides that a defendant does not qualify for safety valve relief if he or she has: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.”
The Court held that § 3553(f)(1)’s “and” is unambiguously conjunctive. That means, unless the defendant has all three -- more than 4 criminal history points, a prior 3-point offense, and a prior 2-point violent offense -- he or she is eligible for safety valve.
The government argued that a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief. The Court rejected this contention: "we hold that 'and' means 'and.'"
In sum, § 3553(f)(1)’s plain meaning, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage lead to only one plausible reading of “and” here. Section 3553(f)(1)’s “and” is conjunctive. Thus, a defendant must meet the criteria in subsections (A) (more than four criminal-history points), (B) (a prior three-point offense), and (C) (a prior two-point violent offense) to be barred from safety-valve relief by § 3553(f)(1). This means one of (A), (B), or (C) is not enough. A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief.
