58 F.4th 1108
9th Cir.2023Background
- The case addresses the First Step Act "safety-valve," 18 U.S.C. § 3553(f)(1): whether the word "and" in the statute is conjunctive (requires all three criminal-history criteria) or disjunctive (any one criterion disqualifies a defendant).
- A Ninth Circuit panel in United States v. Lopez held that "and" is unambiguously conjunctive; a defendant is disqualified from safety-valve relief only if they meet all three listed criteria.
- There is a deep circuit split: the Ninth and the Eleventh (en banc) have read "and" conjunctively; the Fifth, Sixth, Seventh, and Eighth Circuits have read it disjunctively.
- The full court denied a petition for rehearing en banc; Judge R. Nelson issued a statement urging Supreme Court review and suggesting the Ninth Circuit consider en banc review in a future case if the Supreme Court does not resolve the split.
- The issue has substantial sentencing consequences because it governs whether district courts may impose sentences "without regard to any statutory minimum," raising concerns about nationwide disparities in punishment.
- The panel noted this case may be a poor vehicle for en banc review because Lopez’s release date had passed, potentially creating procedural complications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the conjunction "and" in 18 U.S.C. § 3553(f)(1) is conjunctive or disjunctive | United States: "and" means "or" — any one listed criminal-history criterion disqualifies a defendant from safety-valve relief | Lopez: "and" is conjunctive — defendant is disqualified only if all three criteria are met | Ninth Circuit panel: "and" is conjunctive; safety-valve bars relief only when a defendant satisfies all three criteria. Rehearing en banc denied; Judge R. Nelson urged Supreme Court review. |
Key Cases Cited
- United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (panel decision holding "and" conjunctive in § 3553(f)(1))
- United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (agrees "and" is conjunctive)
- United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (holds "and" is disjunctive)
- United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (holds disjunctive reading)
- United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (holds disjunctive reading)
- Green v. Santa Fe Indus., Inc., 533 F.2d 1309 (2d Cir. 1976) (cited on strategic denial of en banc when Supreme Court likely to resolve issue)
- Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (noted for how airing competing views can aid the Supreme Court)