United States v. Lopez

• Decision Date: 21 May 2021
• Docket Number: No. 19-50305,19-50305
• Citation: 998 F.3d 431
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Eric LOPEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

998 F.3d 431

UNITED STATES of America, Plaintiff-Appellant,

v.Eric LOPEZ, Defendant-Appellee.

No. 19-50305

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2021 Pasadena, California

Filed May 21, 2021

MURGUIA, Circuit Judge:

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."

I.

This case involves criminal defendant Eric Lopez, a thirty-five-year-old man from South Gate, California. In December 2018, Lopez attempted to drive across the United States-Mexico border in Otay Mesa, California. A Customs and Border Protection Officer noticed a "soapy-odor" emanating from Lopez's vehicle and referred Lopez to secondary inspection. The inspection of Lopez's vehicle revealed packages containing methamphetamine. The government arrested Lopez and charged him with importing at least fifty grams or more of a substance containing methamphetamine in violation of 21 U.S.C. § 952 and 21 U.S.C. § 960. Lopez pleaded guilty.

Lopez's conviction triggered a mandatory-minimum sentence of five years' imprisonment. See 21 U.S.C. § 960(b)(2)(H). At sentencing, Lopez requested a sentence below the five-year mandatory minimum pursuant to the safety valve, 18 U.S.C. § 3553(f). The safety valve allows a district court to sentence a criminal defendant below a mandatory-minimum sentence for particular drug offenses if a defendant meets the criteria outlined in § 3553(f)(1) through (f)(5). See generally 18 U.S.C. § 3553(f). Because the government conceded that Lopez met the criteria outlined in § 3553(f)(2) through (f)(5),² whether the district court could sentence Lopez below the mandatory minimum turned on whether Lopez met the criteria in recently amended § 3553(f)(1). As amended, a defendant meets the criteria in § 3553(f)(1) if:

(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[.]

Id. § 3553(f)(1) (emphasis added). In other words, § 3553(f)(1) bars a defendant from safety-valve relief only if that defendant has each of (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense.

The district court explained that Lopez's Presentence Investigation Report revealed only one relevant conviction under the Sentencing Guidelines. In December 2007, when Lopez was twenty-two years old, he spray-painted a sign onto a building. Police officers witnessed Lopez spray-paint the sign and arrested him for vandalism. Lopez was convicted of vandalism in 2008. Because Lopez ultimately served more than thirteen months of imprisonment for the vandalism conviction,³ that conviction constituted a "3-point offense" under the Sentencing Guidelines. See U.S. Sent'g Guidelines Manual § 4A1.1(a) (U.S. Sent'g Comm'n 2018) (explaining that, when calculating a defendant's criminal-history category, the district court must "[a]dd 3 points" for each prior sentence exceeding thirteen months of imprisonment).

In the district court, Lopez and the government agreed that Lopez's relevant criminal history—the single vandalism conviction—met the criteria in only subsection (B) ("prior 3-point offense") under § 3553(f)(1). Lopez had neither (A) "more than 4 criminal history points" nor (C) a "prior 2-point violent offense" under § 3553(f)(1). At sentencing, Lopez argued that § 3553(f)(1)'s "and" is plainly conjunctive, which meant that Lopez was eligible for safety-valve relief unless he had (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense.⁴ The government argued, to the contrary, that Lopez was excluded from safety-valve relief if he met any of the criteria in subsection (A), (B), or (C) under § 3553(f)(1).

The district court recognized that whether Lopez's vandalism conviction precluded him from safety-valve relief turned on whether § 3553(f)(1)'s "and" is conjunctive or disjunctive. The district court concluded that § 3553(f)(1)'s "and" is ambiguous and invoked the rule of lenity to reach a conjunctive interpretation.⁵ Lopez was eligible for safety-valve relief under the district court's conjunctive interpretation because, although his criminal history met subsection (B), his criminal history did not meet the criteria in subsections (A), (B), and (C) under § 3553(f)(1). The district court sentenced Lopez to four years of imprisonment, one year less than the five-year mandatory minimum. The government timely appealed Lopez's sentence.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's interpretation of a statute. United States v. Mejia-Pimental , 477 F.3d 1100, 1103 (9th Cir. 2007) (reviewing de novo a district court's statutory interpretation of the safety-valve statute).

III.

A.

The safety-valve provision allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for particular drug offenses if a defendant meets the following five subsections in § 3553(f) :

(1) the defendant does not have—

(A) more than 4 criminal history points ...;

(B) a prior 3-point offense ...; and

(C) a prior 2-point violent offense ...;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon ... in connection with the [instant drug] offense;

(3) the [instant drug] offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the [instant drug] offense ... and was not engaged in a continuing criminal enterprise ...; and

(5) [before] the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the [instant drug] offense ....

18 U.S.C. § 3553(f)(1)–(5).

This case requires us to interpret one of those five provisions, § 3553(f)(1), which focuses on the defendant's prior criminal history as determined under the Sentencing Guidelines. See generally id. § 3553(f)(1). Before 2018, § 3553(f)(1) barred any defendant with more than one criminal-history point under the Sentencing Guidelines from safety-valve relief. See Mejia-Pimental , 477 F.3d at 1104. The low threshold of more than one criminal-history point resulted in many drug offenders receiving mandatory-minimum sentences in instances that some in Congress believed were unnecessary and harsh. Congress recognized the problem and sought to give district courts more flexibility.⁶

In December 2018, Congress passed the First Step Act, which amended § 3553(f)(1) and relaxed its criminal-history disqualifications. First Step Act of 2018, 132 Stat. at 5221. 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). The issue before us is whether § 3553(f)(1)'s "and" is conjunctive or disjunctive.

B.

Well-established rules of statutory construction guide our review in construing § 3553(f)(1). We begin with the statutory text and end there if the statute's language is plain. See Bostock v. Clayton Cnty. , ––– U.S. ––––, 140 S. Ct. 1731, 1749, 207 L.Ed.2d 218 (2020). Unless defined in the statute, a statutory term receives its "ordinary, contemporary, common meaning." Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). The "limits of the drafters' imagination supply no reason to ignore the law's demands." Bostock , 140 S. Ct. at 1737 (holding that the clear statutory text in the Civil Rights Act of 1964 prohibited discrimination based on sexual orientation and gender identity even though members of Congress in 1964 "might not have anticipated their work would lead to th[at] particular result").

Here, the government concedes that the plain and ordinary meaning of § 3553(f)(1)'s "and" is conjunctive. The government's concession is well taken. For the past fifty years, dictionaries and statutory-construction treatises have instructed that when the term "and" joins a list of conditions, it requires not one or the other, but all of...