In this post yesterday, I flagged the significant new Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), concerning the proper interpretation of the FIRST-STEP-amended statutory safety valve. Professor Eric Fish alerted me to this important new ruling, and he also kindly wrote up this thoughtful account of it:
The Ninth Circuit just issued a major opinion, United States v. Lopez, that makes it significantly easier to avoid mandatory minimums in federal drug cases. All three judges signed on to the result, and on balance it was a relatively conservative panel. The opinion is a highly technical exercise in textualism that turns on the meaning of the word “and.” One could see its reasoning succeeding in the current Supreme Court.
To understand the opinion, it is first necessary to understand the “safety valve” exception. This exception lets defendants avoid mandatory minimum sentences in federal drug cases, but only if they satisfy five criteria: (1) the crime cannot result in death or serious bodily injury, (2) the defendant cannot use violence or possess a dangerous weapon, (3) the defendant cannot be an “organizer, leader, or manager,” (4) the defendant must provide all information they have about the crime to the government, and (5) a rule excluding defendants based on their criminal history.
This last exclusion, based on criminal history, was at issue in Lopez. Up until 2018, anybody with more than one “criminal history point” under the Sentencing Guidelines was excluded from safety valve. This meant that anyone who had been sentenced to more than 60 days in jail or had more than one conviction of any kind (including misdemeanors) was excluded. The First Step Act expanded this rule to the following (codified at 18 U.S.C. 3553(f)(1)):
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
After the First Step Act was enacted, judges and attorneys assumed that someone whose criminal history met the criteria in A, B, or C could not get safety valve. So someone with more than 4 points, a 3-point conviction (meaning any conviction with a sentence over 13 months), or a 2-point “violent offense” couldn’t avoid the mandatory minimum. But is that what the provision means? Apparently not, says the panel! Read it again – the three items are connected by a conjunctive “and,” not a disjunctive “or.” And the plainest reading of three items connected by “and” is that the list includes all three. So, reasoned the panel, to be excluded from safety valve you must have every item on the list.
The prosecutors’ strongest argument was that if “and” is read to mean “and,” then (A) becomes surplusage. If someone has a 3-point offense and a 2-point violent offense, they necessarily have “more than 4 criminal history points.” The majority deals with this by observing that “2-point violent offense” could be read to mean “2- or 3-point violent offense,” since any 3-point offense also contains two points. So someone could have a 3-point violent offense satisfying (B) and (C), but not have 4 or more points for (A). The concurrence by Ninth Circuit judge Milan Smith Jr. disagrees with that reading of (C), but still concludes that “and” means “and” notwithstanding any surplusage.
Only a small number of defendants meet all three criteria. The Lopez opinion thus lets many more people avoid mandatory minimum sentences. With the available data it is difficult to estimate exactly how many more people would qualify, but the number is significant.
Prior related post:
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