US v. Lopez, No. 19-50305 (5-21-21)(Murguia w/Boggs; M. Smith partial concurrence & partial dissent). Davina Chen, SRC, sent this news flash about this case – it is important as it greatly expands “safety valve.” As Davina writes: “[T]he Ninth Circuit has held that our clients are not rendered ineligible for Safety Valve relief from mandatory minimums unless they have ALL three of the items listed in 18 U.S.C. § 3553(f)(1).  So, for example, even if he or she has a prior 3-point offense (C) or a prior 2-point violent offense (B), still eligible so long as s/he doesn’t have more than 4 criminal history points, excluding 1 point offenses (A).  The variations and opportunities are ENDLESS.

SO, make sure to ask for your safety valve proffers even if your clients have 3-pointers or crimes of violence in their history!!  Preserve this argument!

And, for those of you in the 9th Circuit who may not have been raising this argument, I’m sorry-not-sorry to ask you to look at your cases final within the last year to see if your client might have been safety-valve eligible.

As the 9th writes in interpreting the First Step Act’s expansion of “safety valve,” “and” means “and.”

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5). In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1). See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “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.” Id. § 3553(f)(1)(A)–(C) (emphasis added).1

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1). But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). 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.”

M. Smith, concurring and dissenting, argues the majority in saying “at least two points” rewrites the statute. He would say that “two points means two points.”

CONGRATS to Michael Marks, Fed Defenders of San Diego, for the HUGE WIN.  Splendid.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf