United States v. Eric Lopez, 998 F.3d 431

998 F.3d 431

9th Cir.

2021

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ERIC LOPEZ, Defendant-Appellee.

No. 19-50305

United States Court of Appeals for the Ninth Circuit

Filed May 21, 2021

D.C. No. 3:19-cr-00261-L-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

ERIC LOPEZ,

Defendant-Appellee.

No. 19-50305

D.C. No.

3:19-cr-00261-L-1

OPINION

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted February 9, 2021

Pasadena, California

Filed May 21, 2021

Before: Danny J. Boggs,* Milan D. Smith, Jr., and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia

Partial Concurrence and Partial Dissent by

Judge Milan D. Smith Jr.

* The Honorable Danny J. Boggs, Senior United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

UNITED STATES V. LOPEZ

SUMMARY**

Criminal Law

The panel affirmed the district court’s imposition of a

sentence pursuant to the safety valve set forth in 18 U.S.C.

§ 3553(f), which allows a district court to sentence a

criminal defendant below the mandatory minimum for

certain drug offenses if the defendant meets the criteria in

§ 3553(f)(1) through (f)(5).

In the First Step Act of 2018, Congress amended

§ 3553(f)(1), which focuses only on a criminal defendant’s

prior criminal history as determined under the United States

Sentencing Guidelines. 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.”

Applying the tools of statutory construction—including

§ 3553(f)(1)’s plain meaning, the Senate’s own legislative

drafting manual, § 3553(f)(1)’s structure as a conjunctive

negative proof, and the canon of consistent usage—the panel

held that § 3553(f)(1)’s “and” is unambiguously

conjunctive.

Concurring in part, dissenting in part, and concurring in

the judgment, Judge M. Smith joined the majority in holding

that a defendant’s criminal history must satisfy all three

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. LOPEZ 3

subsections of § 3553(f)(1) for that individual to be

ineligible for safety valve relief. Disagreeing with the

majority’s interpretation of § 3553(f)(1)(C), he wrote that

reading a “prior 2-point violent offense” as “a prior violent

offense of at least 2 points” is not faithful to the plain tеxt of

that provision.

COUNSEL

Daniel E. Zipp (argued), Assistant United States Attorney,

Chief, Appellate Section, Criminal Division; Robert S.

Brewer, United States Attorney; United States Attorney’s

Office, San Diego, California; for Plaintiff-Appellant.

Michael Marks (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for Defendant-Appellee.

4 UNITED STATES V. LOPEZ

OPINION

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

by a preponderance of the evidence.” United States v. Mejia-Pimental,

477 F.3d 1100, 1104 ( 9th Cir. 2007).

UNITED STATES V. LOPEZ 21

clarifies that a single three-point violent offense does not bar a defendant from safety-valve relief.¹⁰

Finally, even if we agreed that subsection (A) is superfluous under a conjunctive interpretation, our holding would not change. The canon against surplusage is just a rule of thumb. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (stating that “canons of construction arе no more than rules of thumb that help courts determine the meaning

Notes

“The defendant bears the burden of proving safety valve eligibility In the legislative history section of the majority opinion, the majority correctly notes that this “summary discussed a different version of § 3553(f)(1).” Majority Opinion at 25. But the majority then relies upon this same summary to analyze § 3553(f)(1)(C). See id. at 21 n.10.

I say “potentially eligible” because, as the majority states, “the career offender in the government’s hypothetical would also need to satisfy the remainder of the safety-valve requirements to be eligible for relief.” Majority Opinion at 17 n.8 (citing 18 U.S.C. § 3553(f)(2)–(5)). And even if an individual with multiple prior three-point offenses, but no prior two-рoint violent offense, satisfied the entirety of § 3553(f), “a district court would still retain discretion to sentence the career drug offender above the mandatory-minimum sentence.” Id. (citing 18 U.S.C. § 3553(f)); see also (noting that when a defendant meets all five requirements the safety valve, “[t]his, of course, does not require the court to sentence a defendant to a term less than the mandatory minimum; but it does require the court to sentence the defendant ‘without regard to any statutory minimum’” (quoting 18 U.S.C. § 3553(f))). The district court would presumably be unlikely to exercise its discretion to sentence a person with multiple three-point offenses below the mandatory minimum.

Even if the surplusage of § 3553(f)(1)(A) and the odd (though not absurd) results from applying the plain text of § 3553(f)(1)(C) rendered “and” ambiguous, I would nonetheless still hold that “and” must be given a conjunctive interpretation by applying the rule of lenity. See Majority Opinion at 25–26.

UNITED STATES V. LOPEZ 35

U.S. 302, 320 (2014). Congress certainly could have used more exacting language when modifying the safety valve in § 3553(f)(1). In this case, however, “[t]o decide” the meaning of “and” in § 3553(f)(1), “we start with the text of the statute, and as it turns out, it is not necessary to go any further.” Babb v. Wilkie, 140 S. Ct. 1168, 1172 (2020) (internal citation omitted). “And” means “and.” See Majority Opinion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍at 10–11. “[O]ur ‘sole function’ is to apply the law as we find it.” Niz-Chavez v. Garland, 141 S. Ct. 1474, __, 2021 WL 1676619, at *4 (2021) (quoting Lamie, 540 U.S. at 534). I join the majority in holding that a defendant’s criminal history must satisfy all three subsections of § 3553(f)(1) for that individual to be ineligible for safety valve relief. However, I respectfully disagree with the majority’s interpretation of § 3553(f)(1)(C). Reading “a prior 2-point violent offense” as “a prior violent offense of at least 2 points” is not faithful to the plain text of that provision.

The government argues that 2-point violent offenses and 3-point violent offenses are mutually exclusive under United States Sentencing Guidelines § 4A1.1. The government contends that a “2-point violent offense” covers violent convictions with an imprisonment sentence between sixty days and thirteen months. Sеe U.S. Sent’g Guidelines Manual § 4A1.1(b) (“Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).”). The government then contends that any violent conviction resulting in more than thirteen months of imprisonment is a “3-point violent offense.” See id. § 4A1.1(a) (“Add 3 points for each prior sentence of imprisonment exceeding [thirteen months].”). But § 4A1.1 was created to “add” criminal history points for a Sentencing Guidelines calculation. In that context, it makes sense to “add points” for each sentence only once under § 4A1.1 because not doing so would overstate a defendant’s criminal history and cause an inflated Guidelines range.

Here, in the safety-valve context, we are not “adding” criminal history points to form a Guidelines calculation. We are determining the meaning of an offense under § 3553(f)(1)(C). Because Congress presumably targeted violent offenses with subsection (C)’s “2-point violent offense,” it of course targeted more serious violent offenses (three-рoint violent offenses). But under the government’s interpretation, a ninety-day sentence—but not a fifteen-year sentence— involving violence satisfies subsection (C). We reject that nonsensical interpretation and construe a “2-point violent offense” to cover “violent offenses with sentences of at least 60 days,” as the only source to interpret that phrase has done. See Committee on the Judiciary, 115th Congress, The Revised First Step Act of 2018 (S.3649) (2-point violent offеnses are “violent offenses with sentences of at least 60 days”).

22 UNITED STATES V. LOPEZ

of legislation”); Chickasaw Nation, 534 U.S. at 94 (explaining that “canons are not mandatory rules”); see also Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173–74 (2021) (Alito, J., concurring) (“[T]he Scalia-Garner treatise makes it clear that interpretive canons are not rules of interpretation in any strict sense but presumptions about what an intelligently produced text conveys.”) (internal quotation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ marks and citation omitted). The canon against surplusage does not supersede a statute’s plain meаning and structure, while, at the same time, requiring us to inconsistently interpret the same word in the same sentence. See, e.g., Lamie, 540 U.S. at 536 (choosing to follow the plain meaning despite that plain meaning rendering certain words in the statute surplusage); Conn. Nat’l Bank, 503 U.S. at 253–54 (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others,” plain meaning, because “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”). This is espeсially true for criminal statutes, such as § 3553(f)(1), because substantial “overlap between . . . clauses” is “not uncommon in criminal statutes.” See Loughrin v. United States, 573 U.S. 351, 358 n.4 (2014); see also Hubbard v. United States, 514 U.S. 695, 714 n.14 (1995). Accordingly, even if we were to accept the government’s surplusage argument, too many reasons— plain meaning, structure, the Senate’s own legislative drafting manual, and consistent interpretations—show that the canon against surplusage would yield in this specific context.¹¹

UNITED STATES V. LOPEZ 23

The government also argues that a conjunctive interpretation of § 3553(f)(1)’s “and” conflicts with legislative history. Because § 3553(f)(1)’s “and” is not ambiguous, we need not consult legislative history. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“Even [courts] who sometimes consult legislative history will never allow it to be used to ‘muddy’ the meaning of ‘clear statutory language.’”) (citation omitted); see also Bostock, 140 S. Ct. at 1750 (“[L]egislative history can never defeat unambiguous statutory text.”). But even if we considered legislative history, our holding would not change because the legislative history does not show that a conjunctive interpretation of § 3553(f)(1)’s “and” is inconsistent with Congress’s intent.

Each party manages to point out a few floor statements or committee documents to support its interpretation of § 3553(f)(1)’s “and.” On one hand, Lopez states that the First Step Act modified the safety valve to give back discretion to district courts to avoid unduly harsh mandatory minimum sentences when unnecessary. This contention finds support in floor statements by United States Senators. See, e.g., 164 Cong. Rec. S7756 (daily ed. Dec. 18, 2018)

turn § 3553(f)(1) into a disjunctive statute. At the same time, the government contends that the first em-dash in § 3553(f) should not aрply to (f)(1) through (f)(5) in the same way. No Ninth Circuit precedent has ever employed this far-fetched and quixotic em-dash theory or, worse, employed that theory inconsistently in the same subsection of the same statute, as the government requests that we do here. The government concedes that if we applied this em-dash theory consistently in § 3553(f), we would destroy the entire safety-valve structure and allow a defendant to receive safety-valve relief if he or she met the сriteria in § 3553(f)(1), § 3553(f)(2), § 3553(f)(3), § 3553(f)(4), or § 3553(f)(5).

24 UNITED STATES V. LOPEZ

(statement of Sen. Bill Nelson) (opining that the First Step Act “will allow judges to do the job that they were appointed to do—to use their discretion to craft an appropriate sentence to fit the crime”); id. at S7764 (statement of Sen. Cory Booker) (explaining that the First Step Act “will reduce mandatory minimums and give judges discretion back—not legislators but judges who sit and see the totality of the facts”); id. at S7774 (statement of Sen. Dianne Feinstein) (stating that the First Step Act will give “more discrеtion to judges to sentence below mandatory minimums” under the safety valve).¹² But we recognize that Lopez’s conjunctive interpretation and the government’s disjunctive interpretation both give at least some judicial discretion back to district court judges. That is because each interpretation expands safety-valve eligibility beyond those with only one criminal-history point.

On the other hand, the government points out that Senator Patrick Leahy described the First Step Act аs a “modest expansion of the safety valve.” See id. at S7749 (statement of Sen. Patrick Leahy) (emphasis added). But Senator Leahy, in the same breath, stated that he hoped the First Step Act was “a turning point” and remarked: “I truly believe the error of mandatory minimum sentencing is

We also reject the government’s “alternative interpretation” of § 3553(f)(1). This “alternative interpretation” allows the em-dash in § 3553(f)(1)’s introductory phrase (“does not have—”) to inject “does not have” twice more into § 3553(f)(1) and, for all practical purposes,

A few senators noted that the First Step Act would help “low-level, non-violent offenders.” See, e.g., 164 Cong. Rec. S7739 (statement of Sen. Chuck Schumer) (explaining that the First Step Act will “give judges more judicial discretion in sentencing for low-level, nonviolent drug offenders who cooperate with the government”). This does not help the government because Senator Schumer did not say the First Step Act will give more judicial discretion only in cases involving low-level, nonviolent drug offenders. Id. But even if he did, Lopez is a quintessential low-level, non-violent defendant who would be excluded from safety-valve relief under the government’s disjunctive interpretation.

UNITED STATES V. LOPEZ 25

coming to an end.” Id. Moreover, because the First Step Act changed only one of five subsections for safety-valve eligibility, it can be characterized as “modest” even assuming a conjunctive interpretation.

The government also cites a bullet-point summary of the First Step Act prepared by the Senate Judiciary Committee. The summary states: “[O]ffenders with prior ‘3 point’ felony convictions (sentences exceeding one year and one month) or prior ‘2 point’ violent offenses (violent offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial finding that those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism.” See Committee on the Judiciary, The Revised First Step Act of 2018 (S.3649). But that bullet-point summary discussed a different version of § 3553(f)(1)—a version that, notably, provided a district court with judicial discretion to altogether disregard a defendant’s prior criminal history under § 3553(f)(1). See id.

In sum, neither party cites anything in the First Step Act’s thin legislative history to tip the scales either way. But even if one party could do so here, “legislative history can never defeat unambiguous statutory text.” Bostock, 140 S. Ct. at 1750.

Finally, we address the rule of lenity, a canon of statutory construction that requires “grievous ambiguity” in criminal statutes to be resolved in favor of a criminal defendant. See Maracich v. Spears, 570 U.S. 48, 76 (2013) (citation omitted); United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). The rule of lenity prevents a court from giving the text ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a criminal statute “a meaning that is different from

26 UNITED STATES V. LOPEZ

its ordinary, accepted meaning, and that disfavors the [criminal] defendant.” Burrage v. United States, 571 U.S. 204, 216 (2014). The rule of lenity is not just a “convenient” canon of statutory construction; it is rooted in “fundamental principles of due process [mandating] that no individual be forced to speculate . . . whether his [or her] conduct” is covered by a criminal statute. See Dunn v. United States, 442 U.S. 100, 112 (1979); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Chief Justice John Marshall stating that the “rule that penal laws are to be construed strictly, is perhaps not much less old than [statutory] construction itself”).

Because § 3553(f)(1)’s “and” is not ambiguous, we do not invoke the rule of lenity here. But assuming we accepted the government’s contention that the term “and” here is ambiguous, we would invoke the rule of lenity to end with a conjunctive interpretation. We would not require a criminal defendant to read § 3553(f)(1)’s text, ignore the plain meaning of “and,” ignore the Senate’s legislative drafting manual, ignore § 3553(f)(1)’s structure, ignore our prior casе law interpreting “and” in § 3553(f)(4), and then, somehow, predict that a federal court would rewrite § 3553(f)(1)’s “and” into an “or.” See Burrage, 571 U.S. at 216; Dunn, 442 U.S. at 112; cf. Bostock, 140 S. Ct. at 1738 (stating that judges cannot “remodel” statutory terms and “deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations”).

IV.

For the reasons above, we affirm the district court’s sentence and hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1050 (9th Cir. 2000)

UNITED STATES V. LOPEZ 27

(stating that we may “affirm the district court on a ground not selected by the district judge so long as the record fairly supports such an аlternative disposition”) (citation and quotation marks omitted).¹³

We recognize that § 3553(f)(1)’s plain and unambiguous language might be viewed as a considerable departure from the prior version of § 3553(f)(1), which barred any defendant from safety-valve relief if he or she had more than one criminal-history point under the Sentencing Guidelines. See Mejia-Pimental, 477 F.3d at 1104. As a result, § 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. See Bostock, 140 S. Ct. at 1749 (noting that Congress’s plain language sometimes reaches “beyond the principal evil [that] legislators may have intended or expected to address,” but courts remain obligated to give Congress’s language its plain meaning) (citation and quotation marks omitted). We cannot ignore Congress’s plain and unambiguous language just because a statute might reach further than some in Congress expectеd. See id. (“[I]t is ultimately the provisions of [Congress’s] legislative commands rather than the principal concerns of our legislators by which we are governed.”) (emphasis added) (citation and quotation marks omitted).

Section 3553(f)(1)’s plain and unambiguous language, the Senate’s own legislative drafting manual, § 3553(f)(1)’s

The district court deemed § 3553(f)(1)’s “and” ambiguous and invoked the rule of lenity to reach a conjunctive interpretation.

28 UNITED STATES V. LOPEZ

structure as a conjunctive negative proof, and the canon of consistent usage result in only onе plausible reading of § 3553(f)(1)’s “and” here: “And” is conjunctive. If Congress meant § 3553(f)(1)’s “and” to mean “or,” it has the authority to amend the statute accordingly. We do not.

AFFIRMED.

M. SMITH, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment:

I join the majority opinion except for its contention that 18 U.S.C. § 3553(f)(1) does not contain superfluous language. See Majority Opinion at 15–16, 20–21. The majority posits that “a three-point violent offense can simultaneously satisfy two subsections, (B) and (C).” Id. at 20. Subsection (B) provides for application of the safety valve for an individual who does not have “a prior 3-point offense, аs determined under the sentencing guidelines,” and subsection (C) gives relief for a defendant who does not have “a prior 2-point violent offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(B)–(C). Thus, under the majority’s interpretation, when a defendant has a prior three-point violent offense, that offense counts as both “a prior 3-point offense,” id. § 3553(f)(1)(B), and “a prior 2-point violent offense,” id. § 3553(f)(1)(C). In effect, the majority interprets “a prior 2-point violent offense” to mean “a prior violent offense of at least 2 pоints.” This reasoning allows the majority to avoid any surplusage in the statute.

If, instead, a prior three-point violent offense does not count as “a prior 2-point violent offense,” id., subsection (A) becomes redundant. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Subsection (A) allows application of

UNITED STATES V. LOPEZ 29

the safety valve for a defendant who does not have “more than 4 criminal history points.” Id. § 3553(f)(1)(A). If a single offense cannot fulfill the requirements of subsections (B) and (C), a defendant who has “a prior 3-point offense” and “a prior 2-point violent offense,” will always have “more than 4 criminal history points,” id. § 3553(f)(1), rendering subsection (A) surplusage.

The majority’s attempt to avoid surplusage in § 3553(f)(1) conforms to general principles of statutory interpretation. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (citation and internal quotation marks omitted)). However, “our preference for avoiding surplusage cоnstructions is not absolute.” Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004).

In interpreting “a prior 2-point violent offense” to mean “a prior violent offense of at least 2 points,” the majority rewrites the plain language of the statute. Congress meant what it said. Two points is two points. Two points is not three points. An interpretive canon, such as the rule against surplusage, “is not a license for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini, 472 U.S. 675, 680 (1985). I agree with the majority that we should refuse to rewrite “and” to mean “or” in the context of § 3553(f)(1). The majority should apply that same principle of plain text analysis to interpretation of “a prior 2-point violent offense” in § 3553(f)(1)(C).

As further evidence that subsection (C) cannot be read as “a prior violent offense of at least 2 points,” we need look only to the sentencing guidelines. The guidelines provide that in determining a defendant’s criminal history category,

30 UNITED STATES V. LOPEZ

the district court should “[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Next, the guidelines state that the court should “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).” Id. § 4A1.1(b) (emphasis added). The guidelines’ approach to three- and two-point offenses is mutually exclusive, as indicated by the final phrase of § 4A1.1(b). If a prior sentence is more than one year and one month, the district court assigns three points, and if the prior sentence is at least sixty days, but dоes not exceed one year and one month (i.e., is “not counted in (a)”), the court assigns two points. Thus, a prior sentence is either a three-point offense or a two-point offense. A prior sentence cannot simultaneously be both a three-point offense and a two-point offense.

Not only does it make sense that Congress would mirror the guidelines when writing § 3553(f)(1), but the legislators themselves told us they did just that. Subsection (C) states that the disqualifying criminal history is “a prior 2-point violent оffense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(C) (emphasis added). Subsection (B) provides the same. See id. § 3553(f)(1)(B). When a district court determines, pursuant to the sentencing guidelines, that a prior offense is three points, that court cannot determine that the same prior offense is also two points because only an offense “of at least sixty days not counted” as a three-point offense can qualify as a two-point offense. U.S.S.G. § 4A1.1(b). The same is true in § 3553(f)(1). “[A] prior 3-point [violent] offense” is not also “a prior 2-point violent offense, as determinеd under the sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(B)–(C). Thus, I agree with the Government that a single prior three-point violent offense cannot fulfill subsections (B) and (C). See Majority Opinion at 21 n.10.

UNITED STATES V. LOPEZ 31

The majority attempts to distinguish § 3553(f)(1) from the sentencing guidelines by stating that “in the safety-valve context, we are not ‘adding’ criminal-history points to form a Guidelines calculation. We are determining the meaning of an offense under § 3553(f)(1)(C).” Id. at 21 n.10. For support, the majority references a summary released by the Senate Judiciary Committee, which states:

[O]ffenders with prior “3 point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses (violent offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial finding that those prior offenses substantially overstate the defendant’s criminal history and danger of recidivism.

Committee on the Judiciary, 115th Congress, The Revised First Step Act of 2018 (S.3649) (some emphases added).

I put little stock in this summary for two reasons. First, “legislative history can never defeat unambiguous statutory text.” Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1750 (2020); see also Majority Opinion at 25. The “unambiguous statutory text” says “a prior 2-point violent offense” not “a prior violent offense of at least 2 points.” Second, that same summary uses “or” to connect subsections (B) and (C). I agree with the majority that “the plain and ordinary meaning of § 3553(f)(1)’s ‘and’ is conjunctive.” Majority Opinion at 11. The Senate Judiciary Committee’s “summary” fails to accurately summarize the plain language of the law and its use of “and.” This gives me pause in accepting the summary’s decision to use “violent offenses of at least 60 days” in a parenthetical as a way to break with the

32 UNITED STATES V. LOPEZ

unambiguous language of § 3553(f)(1)(C) and the sentencing guidelines.¹

The textual evidence, both in the statute itself and the sentencing guidelines to which the statute references, points to only one conclusion: Congress intended to provide mutually exclusive categories for two- and three-point ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ offenses. The majority’s decision to interpret “prior 2-point violent offense” as “a violent offense of at least 2 points” “would have us read an absent word,” or, in this case, words, “into the statute.” Lamie, 540 U.S. at 538. This we cannot do.

While I agree with the Government that a conjunctive interpretation of “and” renders subsection (A) surplusage, I also agree with the majority that this superfluity does not change the outcome. Majority Opinion at 21–22. As the majority highlights, “[t]he canon against surplusage is just a rule of thumb.” Id. at 21. While we must strive to interpret a statute to avoid surplusage, “our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs.” United States v. Atl. Rsch. Corp., 551 U.S. 128, 137 (2007). In this case, the cost of applying the plain text of § 3553(f)(1)—“and” means “and”—is that subsection (A) is surplusage. As the majority writes, “[a]lthough ‘Congress may amend the statute[,] we may not.’” Majority Opinion at 17 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982) (second alteration in original)). If Congress wishes to avoid surplusage in § 3553(f)(1), it has power pursuant to Article I

UNITED STATES V. LOPEZ 33

of the Constitution to enact legislation to that effect. We can only carry out its will in applying the plain language of the statute as enacted.

I offer a final note regarding the Govеrnment’s absurdity argument. I agree with the majority that reading “and” conjunctively does not produce absurd results. See Majority Opinion at 17–19. However, applying the plain text of subsection (C)—where “a prior 2-point violent offense” means just that—admittedly makes the absurdity issue a closer question. That is because a defendant could have an unlimited number of prior three-point offenses (including three-point offenses of a violent nature), satisfying subsection (B), but still qualify for the safety valve because that defendant did not also have “a prior 2-point violent offense” pursuant to subsection (C). 18 U.S.C. § 3553(f)(1)(C). While this appears to be an odd result, I do not believe it is absurd.

As the majority notes, there is a high bar for showing absurdity, especially in the face of unambiguous statutory language. See Majority Opinion at 16–17. The absurdity doctrine “is confined to situations ‘where it is quite impossible that Congress could have intended the result . . . and where the alleged absurdity is so clear as to be obvious to mоst anyone.’” In re Hokulani Square, Inc., 776 F.3d 1083, 1088 (9th Cir. 2015) (quoting Public Citizen v. U. S. Dep’t of Justice, 491 U.S. 440, 471 (1989) (Kennedy, J., concurring)). Allowing an individual who has multiple prior three-point offenses, but no prior two-point violent offenses, to be eligible for the safety valve is odd. And perhaps it “is not wise.” Id. But it is the policy Congress plainly set forth by enacting § 3553(f)(1). It might be the case that Congress intended that the safety valve exclude only a very specific subset of individuals, as delineated by § 3553(f)(1).

34 UNITED STATES V. LOPEZ

Alternatively, Congress might have believed that there was something particularly disqualifying about having both a prior two-point violent offense and a prior three-point offense. “It is, however, not our job to find reasons for what Congress has plainly done.” Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 217 (2002). Congress has clearly mandated that only individuals who have a prior three-point offense and a prior two-point violent offense (and, consequently, more than four criminal history points) are potentially eligible² for safety valve relief. See 18 U.S.C. § 3553(f)(1).³

The First Step Act “is far from a chef d’oeuvre of legislative draftsmanship.” Util. Air Reg. Grp. v. EPA, 573

This summary constitutes no part of the opinion of the court. It