UNITED STATES OF AMERICA v. ERIC LOPEZ
No. 19-50305
United States Court of Appeals for the Ninth Circuit
January 27, 2023
D.C. No. 3:19-cr-00261-L-1
FOR PUBLICATION
Mary H. Murguia, Chief Judge, and Danny J. Boggs* and Milan D. Smith, Jr., Circuit Judges.
Order;
Statement by Judge R. Nelson
SUMMARY**
Criminal Law
The panel denied on behalf of the court a petition for rehearing en banc in a case in which the panel held that the word “and” in the First Step Act‘s safety-valve provision,
In a statement regarding denial of rehearing en banc, Judge R. Nelson wrote that given the deep circuit split on whether “and” means “or” in
ORDER
The panel has voted to deny the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED (Doc. 49).
R. NELSON, Circuit Judge, statement regarding denial of rehearing en banc:
The issue presented in this case—whether “and” means “or” in the First Step Act‘s “safety valve” provision,
This case involves the so-called “safety valve” provision of the First Step Act,
What‘s more, there is even disagreement among each side of the split. See, e.g., Garcon, 2022 WL 17479829, at *17 (Branch, J., dissenting) (“The Fifth Circuit and Eighth Circuit held that the ‘and’ bears a conjunctive but distributive meaning; the Seventh Circuit held that the ‘and’ is disjunctive.“). Not to mention multiple concurrences and dissents. Seventeen judges in six circuits have now offered their unique take on this same question.
The present degree of circuit court confusion warrants Supreme Court review. The question here—which governs whether district courts must “impose a sentence . . . without regard to any statutory minimum,”
So why not call this case en banc? A court of appeals’ en banc power is meant to allow “for more effective judicial administration.” Textile Mills Sec. Corp. v. Comm‘r, 314 U.S. 326, 334-35 (1941). In my view, en banc review—with its considerable expenditure of time and resources—is better reserved for a subsequent case if necessary.
A circuit split will exist whether this court changes its position, meaning we cannot satisfy “the overriding need for national uniformity” that often justifies en banc review. 9th Cir. Rule 35-1. Only the Supreme Court can resolve the entrenched division in the lower courts. Cf. Green v. Santa Fe Indus., Inc., 533 F.2d 1309, 1310 (2d Cir. 1976) (per curiam) (“This Court has denied en banc . . . not because we believe these cases are insignificant, but because they are of such extraordinary importance that we are confident the Supreme Court will accept these matters under its certiorari jurisdiction . . . .“). Of course, an “airing of competing views” can often “aid[]” the Supreme Court‘s “own decisionmaking process.” Dep‘t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay). But over a dozen federal appellate judges—including members of this court—have already weighed in with thoughtful opinions representing a diversity of views. The time and labor required to produce yet another set of writings from our court en banc for the Supreme Court to consider does not seem worth the candle at this stage. This case also may not be the best vehicle for en banc review, given that Lopez‘s scheduled release date has already passed—potentially raising procedural complications.
If the Supreme Court declines to resolve the present circuit split, we should consider in a subsequent case whether to align our court with the current majority view held by the Fifth, Sixth, Seventh, and Eighth Circuits.