Published on: Sunday, May 23, 2021

 The “safety valve” sentencing provision in  18 U.S.C. § 3553(f) allows a district court to sentence a defendant below the mandatory-minimum sentence for certain drug offenses if the defendant can show he or she doesn’t have all three conviction categories, together, that are listed in the statute, the Ninth Circuit held Friday in United States v. Lopez,  No. 19-50305 (9th Cir. May 21, 2021).

The First Step Act expanded this rule:

(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;

The term “and” in the statute, 18 U.S.C. § 3553(f)(1), means “and,” the court held. "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'.” “A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief,” referring to the three categories of prior convictions.

The result allows Eric Lopez, who was convicted of drug transporting, to serve four years’ imprisonment rather than five. Lopez, age 35, had a single prior conviction—for vandalism with spray paint at age 22.

Up until 2018, anyone with more than one “criminal history point” under the Sentencing Guidelines was safety valve ineligble. Specifically, 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.