Brock Benjamin

Brock Benjamin is the owner of the Benjamin Law Firm in El Paso that focuses on federal criminal defense in New Mexico and Texas and state criminal defense in Texas. He a director for NMCDLA. Prior to opening the firm, Brock was an assistant District Attorney in El Paso, Texas and immediately following law school was an associate doing legal malpractice plaintiff’s representation. His former life consisted of jumping out of planes in the 2d Battalion, 75th Ranger Regiment. He’s an active private pilot and enjoys trips with his family. He can be reached at or 915-412-5858.

Federal Corner: “and” means “and” Safety Valve is Open Facts of the Case


United States v. Lopez, 988 F.3d 431 (9th Cir. 2021)
First Step Safety Valve Application

In December of 2018, Eric Lopez, a thirty-five-year-old man from South Gate California, drove across the United States Mexico border in Otay Mesa, California. The Customs and Border Protection Officer noticed a “soapy-odor” coming from the vehicle and referred him to secondary. The secondary inspection of Lopez’s vehicle revealed packages containing methamphetamine. He was arrested and charged with importing at least fifty (50) grams or more of a substance containing methamphetamine in violation of Title 21 U.S.C. §§ 952 and 960. He entered a guilty plea.


At sentencing, the district court explained that Lopez’s Pre-Sentence Investigation Report (“PSR”) revealed only one relevant conviction under the sentencing guidelines. When Lopez was twenty-two years old, he spray-painted a sign onto a building. Lopez was convicted of vandalism. He served 13 months of imprisonment for that vandalism conviction. The Sentencing Guidelines Manual § 4A1.1(a) states that the district court must add 3 points for each prior sentence exceeding thirteen months of imprisonment. The district court agreed with Lopez’s counsel, though, that Lopez only met the criteria under 18 U.S.C. § 3553(f)(1)(B), a prior three-point offense, and that he did not meet the other two parts of the criteria under §3553(f)(1).

The government argued that the safety valve criteria under the First Step Act of 2018 was to be read in the disjunctive. The Act was amended in 2018 to change 18 U.S.C. § 3553(f)(1) from allowing no more than 1 criminal history point if: (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 [emphasis added] The district court recognized that the ability to sentence below the guidelines turned on Lopez’s argument that the statute required all three in the conjunctive as opposed to the government’s position. Lopez was eligible for safety-valve relief under the district court’s conjunctive interpretation because, while he had a prior 3-point offense, he did not also have the other two criteria. The court then sentenced him to four years (48 months) of imprisonment. This was one (1) year less than the five-year (60 month) mandatory minimum. The government timely appealed.

Appeal: “and” means “and”

The Court of Appeals went through a very in-depth examination of the word “and.” The government conceded that the plain and ordinary meaning of § 3553(f)(1)’s “and” was conjunctive. See Lopez at 436. Their analysis started with that concession and an examination of Merriam-Webster:

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 the conditions. See, e.g., Merriam-Webster’s Collegiate Dictionary 46 (11th ed. 2020) (defining “and” to “indicate connection or addition”); Antonin   Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-20 (2012) (stating that “and” combines a list of conditions in a statute); New Oxford American Dictionary 57 (3rd ed. 2010) (stating that “and” is “used to connect words of the same part of speech, clauses, or sentences that are to be taken jointly”) (emphasis added); Oxford English Dictionary 449 (2d ed. 1989) (stating that “and” introduces “a word, clause, or sentence, which is to be taken side by side with, along with, or in addition to, that which precedes it”) (italics omitted); Webster’s Third New International Dictionary 80 (1967) (defining “and” to mean “along with or together with” or “as well as”).

See id. The Court then moved to acknowledging that “Congress recognized the problem and sought to give district courts more flexibility” in sentencing below mandatory-minimum sentences that were “unnecessary and harsh.” See Lopez at 435. In addition to Merriam Webster, the Court examined the Senate’s Legislative Drafting Manual 64.

The thrust of the argument lay with the fact that the Court determined that Section 3553(f)(1) is “a conjunctive negative proof.” Lopez at 436. To be eligible for the safety valve, a defendant must prove that he or she does not have the following: (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense. See id.

It only made a footnote, but Justice Scalia and Bryan Garner had an example of the opposite – disjunctive negative proof:

“To be eligible for citizenship, you must prove that you have not (1) been convicted of murder; (2) been convicted of manslaughter; or (3) been convicted of embezzlement.” See Scalia & Garner, supra, at 120 (emphasis added). The person applying for citizenship must “have done none” of the three conditions. Id. If a person is convicted only of murder, for example, that person is automatically ineligible for citizenship under this example of a disjunctive negative proof. See id.

Lopez at fn. 7.

The Court found that this was the opposite of what was intended by Congress with the First Step Act. Congress intended the statute to “allow judges to … use their discretion to craft an appropriate sentence that will fit the crime.” See Lopez at fn. 6.

The government argued that the conjunctive could produce “absurd” results. The government pointed out that a career offender with several drug convictions – but who did not have a violent act conviction – could be eligible for safety-valve relief under a conjunctive interpretation. Id. at 438–39. The Court disagreed that the hypothetical would lead to “absurd” results.  The Court found that a conjunctive interpretation results in § 3553(f)(1) not barring non-violent repeat drug offenders from a safety-valve application while violent repeat drug offenders will almost always be barred. Id. at 439. In another footnote, though, the Court dealt with the career hypothetical even more succinctly, noting that if a career drug offender did qualify for safety valve relief, a district court would still retain discretion to sentence the career drug offender above the mandatory-minimum sentence. Id. at fn. 8.

The government further argued that failing to read parts (B), 2-point violent offense, and (C), three-point offense, was superfluous in the conjunctive because any defendant who has (B) a “prior 3-point offense” and (C) a “prior 2-point violent offense” will always have five criminal history points and therefore meet (A) “more than 4 criminal history points.” Id. at 440. The Court concluded that a conjunctive interpretation did not render the language superfluous and noted that a three-point violent offense can simultaneously satisfy two subsections, (B) and (C), while not satisfying subsection (A). See id.

In sum, the majority stated that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there…too many reasons – plain meaning, structure, the Senate’s own legislative drafting manual, and consistent interpretations” support its conclusion that § 3553(f)(1)’s “and” is unambiguously conjunctive. See Lopez at 441. Further, they noted that § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated…but sometimes Congress uses words that reach further than some members of Congress may have expected and Congress has “the authority to amend the statue accordingly” if “and” was supposed to be “or.” Id. at 444.

Dissent (in part)

Circuit Judge Smith wrote an opinion concurring in part and dissenting in part. The opinion focuses on the majority’s analysis of parts (B) and (C). Judge Smith focused on the fact that the Guidelines separate those two classes of convictions and the First Step Act included language stating this in § 3553(f)(1)(C)- a prior 2-point violent offense, as determined under the sentencing guidelines. He therefore agreed with the government that a conjunctive interpretation of “and” renders subsection (A) surplusage but also agreed with the majority that this superfluity does not change the outcome. Id. at 446.

Judge Smith’s opinion concludes that Congress may very well have intended that the safety valve exclude only a very specific subset of individuals or that there was something particularly disqualifying about having both a prior two-point violent offense and a prior three-point offense. Id. at 447.


In sum, Lopez clarifies and changes the scope of who may qualify for safety valve relief and practically who does not qualify – individuals with 4 total points, a 3-point offense and a 2-point violent offense. It’s time to ensure we evaluate our cases closely. Although, as the majority and dissent pointed out, just because they qualify does not mean that a judge does not retain the discretion to sentence above the mandatory minimum.