UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50305 Plaintiff-Appellant, D.C. No. v. 3:19-cr-00261-L-1 ERIC LOPEZ, OPINION Defendant-Appellee.

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. 2 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

** This summary constitutes no part of the opinion of the court. It 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 text 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 gen