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: Plea agreement or not – You can’t punish me for liking the Yankees and not Red Sox!


United States v. Leroya Cozad, 2022 WL 16492 (10th Cir. Filed January 3, 2022)

The Court in this opinion summarizes a concern defense attorneys have- use a plea agreement or plea to the indictment? This is a very different calculus in Federal Court where the judge does most of the “sentencing” as compared to state court where the prosecutors provide the agreed sentence.

In Cozad, the Court looked at “whether under 18 U.S.C. § 3553(a) it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement.” The 10th U.S. Court of Appeals tells us it is unreasonable.

Facts of the Case

Ms. Leroya Cozad was indicted on a single charge of aiding and abetting the making of counterfeit currency. In negotiations with the Government, she offered to enter a guilty plea to four (4) years-probation. The government countered with a “low end” guidelines sentence. She chose to enter a guilty plea to the indictment, without a plea agreement. The probation officer determined that guideline range was 24 to 30 months. Subsequently and prior to sentencing, both parties submitted sentencing memorandums. Ms. Cozad sought probation and the government sought the low end of 24 months, which is what it had sought during plea negotiations.

The District Court rejected those requests and sentenced Ms. Cozad to 27 months, the midpoint of the guidelines. In explaining that decision the district court stated:

I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.

That’s certainly their right to plead without a plea agreement, but they do not have a right to a low-end guideline range sentence, and so it’s always been my — again this isn’t a hard-and-fast rule by any means that I apply, but it’s always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they’re entitled to additional consideration, which is where I start at a low-end guideline range.

But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range, which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

In this case, having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I’ve received from the probation office and going back through the report as well, it’s my conclusion that, first of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I’ve just discussed overall, that a low-end guideline range sentence is not appropriate. [Emphasis in Opinion) Record cite at *2 Rec., vol. III at 42–44 (emphasis added).


The Court began its analysis with discussing that a defendant’s sentence was reviewed for either procedural or substantive reasonableness. The Court focused on the fact that that the district court “described its customary practice of distinguishing defendant’s based on the nature of their plea.” And also that while the “district court made a passing reference to ‘the agreements that typically happen in a plea agreement,’ the court did not specify what those agreements are.”

As we know, and the Court of Appeals discussed, those agreements can be appeal waivers and, fast track type agreements. The Court began by analyzing, the district court’s decision under 18 U.S.C. § 3553(a) stating that there were only four permissible factors that could be considered by statute. And while a court under 18 U.S.C. § 3661 is told that “no limitation shall be placed on the information concerning the background, character and conduct of a person…” That does not mean that all information is relevant to a defendant’s character.

The Court analyzed that the defendant’s need for rehabilitation was impermissible a factor under 18 U.S.C. § 3582(c) See United States v. Story, F.3d 1241, 1247-48 (10th Cir. 2011) or even worse, refusing to testify, in United States v. Cabrera, 811 F.3d 801, 808-09 (6th Cir. 2016) that Court held that a within-guidelines sentence was procedurally unreasonable because it was based on the defendant’s refusal to testify. The Court pointed to several other illegal considerations, such as prison sentences for inability to pay restitution and as Justice Stevens summarized in Rita v. United States, 551 U.S. 338, 365 (2007) for non-relevant factors, when he noted that it would be “unreasonable for a district court to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans.”

The Court then turned to Ms. Cozad’s sentence and stated that it did not see how the “fact of a defendant’s open plea, standing alone, bears any meaningful relationship to the § 3553(a) factors.” This was because a plea agreement is a contract and either party may reject the other party’s offer or refuse to negotiate entirely. It continued stating that the fact that the parties failed to mutually agree, as here where Ms. Cozad requested probation and the government requested the low end (of the properly calculated guidelines); that failed contractual negotiation and agreement is not something that provides “insight into the defendant’s character.” It also does not constitute one of the proper reasons under the statute to aid a district court in determining a sentence to comply with §3553(a)- a sentence that is sufficient, but not greater than necessary. The court stated that penalizing a defendant on the “absence of a plea agreement alone is arbitrary.”

The government tried to go back to the district courts use of the “other agreements” that a plea agreement may contain. The 10th Cir. has held that a district court could consider a negotiated appellate waiver because it could show acceptance of responsibility beyond the mere guilty plea. Think of a defendant who failed a urinalysis or violated some other item and is in need of demonstrating to a court that he wants to be committed to acceptance of responsibility.

The Court continued though and discussed that the cases that discussed the appellate waiver in a plea agreement as consideration, were, “fundamentally different than the absence of an appeal waiver in an agreement that never happened and whose terms remain purely hypothetical.”

The government’s next reason was that without providing a benefit for “uniformity purposes” and “additional leniency” to individuals who use a plea agreement, defendant’s would not have a “compelling” reason to use a plea agreement.. The Court explained that the Government’s theory was based on a false premise. Because a prosecutor could always file additional charges or seek aggressive interpretation of the guidelines to provide a “compelling reason”. See Fed. R. Crim. P. 11(c)(1)(B),(C). Therefore, with the government’s recommendation, a defendant who refuses to a plea bargain would still risk receiving a higher sentence in many cases. Thus providing a “compelling” reason to accept a plea agreement in some cases.

Lastly, the Court looked at fast track plea agreements. These are plea agreements where the government has provided an agreement with a specific departure under §5K3.1 of the United States Sentencing Guidelines. The Sentencing Commission adopted § 5K3.1 at the direction of Congress, which sought to incentivize early plea deals by accommodating fast track programs within the guidelines. In the author’s experience these usually provide anywhere for 1 to 2 points for offenses like alien smuggling or illegal re-entry. Fast Track Plea Agreements reward defendants with the set reduction by entering a plea usually prior to the indictment and for waiving any pre-trial motion practice. The Court recognized that these programs do not fit into the § 3553(a) factors, but do reflect Congress’ intent. In Cozad, the district court placed its own expression of this intent, where Congress had not spoken.


Ultimately this does not mean that a defendant cannot receive a harsher sentence if she enters a guilty plea without a plea agreement; rather a defendant cannot receive a harsher sentence simply because she did not have a plea agreement. Rule 11(c) prevents a judge from entering into the negotiations of a plea agreement.  See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir. 1998). This does not mean that the government cannot provide the “compelling reasons” for a defendant to choose a plea agreement, only that the court cannot do so. Reflecting on plea decisions in federal court, this happens many times- role agreements, acceptance recommendations-where it may be at risk, and the hardest to obtain, charge bargaining where a charge is offered that does not contain a mandatory minimum. These are some quick examples of “compelling” reasons that can be negotiated in a beneficial plea agreement. However simply entering into a plea agreement in a single count fraud indictment may not provide any incentive or “compelling reason” where the government is recommending the low end of a properly calculated guideline. Here Cozad explains that you should not be punished for solely that act of acceptance and not taking a benefit-less agreement.

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.