United States v. Eric Lopez

FOR PUBLICATION

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 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

1
“The defendant bears the burden of proving safety valve eligibility
by a preponderance of the evidence.” United States v. Mejia-Pimental,
477 F.3d 1100, 1104 (9th Cir. 2007).
 UNITED STATES V. LOPEZ 5

§ 3553(f)(1). Applying the tools of statutory construction,
we hold that § 3553(f)(1)’s “and” is unambiguously
conjunctive. Put another way, we hold that “and” means
“and.”

I.

This case involves criminal defendant Eric Lopez, a
thirty-five-year-old man from South Gate, California. In
December 2018, Lopez attempted to drive across the United
States-Mexico border in Otay Mesa, California. A Customs
and Border Protection Officer noticed a “soapy-odor”
emanating from Lopez’s vehicle and referred Lopez to
secondary inspection. The inspection of Lopez’s vehicle
revealed packages containing methamphetamine. The
government arrested Lopez and charged him with importing
at least fifty grams or more of a substance containing
methamphetamine in violation of 21 U.S.C. § 952 and
21 U.S.C. § 960. Lopez pleaded guilty.

Lopez’s conviction triggered a mandatory-minimum
sentence of five years’ imprisonment. See 21 U.S.C.
§ 960(b)(2)(H). At sentencing, Lopez requested a sentence
below the five-year mandatory minimum pursuant to the
safety valve, 18 U.S.C. § 3553(f). The safety valve allows a
district court to sentence a criminal defendant below a
mandatory-minimum sentence for particular drug offenses if
a defendant meets the criteria outlined in § 3553(f)(1)
through (f)(5). See generally 18 U.S.C. § 3553(f). Because
the government conceded that Lopez met the criteria
outlined in § 3553(f)(2) through (f)(5), 2 whether the district

2
Section 3553(f)(2) prevents application of the safety valve if the
defendant used violence or possessed a deadly weapon in the instant
offense. Section 3553(f)(3) prevents application of the safety valve if
6 UNITED STATES V. LOPEZ

court could sentence Lopez below the mandatory minimum
turned on whether Lopez met the criteria in recently
amended § 3553(f)(1). As amended, a defendant meets the
criteria in § 3553(f)(1) if:

(1) the defendant does not have—

(A) more than 4 criminal history points
excluding any criminal history points
resulting from a 1-point offense, as
determined under the sentencing
guidelines;

(B) a prior 3-point offense, as determined
under the sentencing guidelines; and

(C) a prior 2-point violent offense, as
determined under the sentencing
guidelines[.]

Id. § 3553(f)(1) (emphasis added). In other words,
§ 3553(f)(1) bars a defendant from safety-valve relief only if
that defendant has each of (A) more than four criminal-
history points, (B) a prior three-point offense, and (C) a prior
two-point violent offense.

The district court explained that Lopez’s Presentence
Investigation Report revealed only one relevant conviction
under the Sentencing Guidelines. In December 2007, when

the defendant’s instant offense resulted in serious bodily injury or death.
Section 3553(f)(4) prevents application of the safety valve if the
defendant acted as a leader or organizer in the instant offense. Section
3553(f)(5) prevents application of the safety valve if the defendant does
not provide certain information to the government.
 UNITED STATES V. LOPEZ 7

Lopez was twenty-two years old, he spray-painted a sign
onto a building. Police officers witnessed Lopez spray-paint
the sign and arrested him for vandalism. Lopez was
convicted of vandalism in 2008. Because Lopez ultimately
served more than thirteen months of imprisonment for the
vandalism conviction, 3 that conviction constituted a “3-point
offense” under the Sentencing Guidelines. See U.S. Sent’g
Guidelines Manual § 4A1.1(a) (U.S. Sent’g Comm’n 2018)
(explaining that, when calculating a defendant’s criminal-
history category, the district court must “[a]dd 3 points” for
each prior sentence exceeding thirteen months of
imprisonment).

In the district court, Lopez and the government agreed
that Lopez’s relevant criminal history—the single vandalism
conviction—met the criteria in only subsection (B) (“prior
3-point offense”) under § 3553(f)(1). Lopez had neither
(A) “more than 4 criminal history points” nor (C) a “prior 2-
point violent offense” under § 3553(f)(1). At sentencing,
Lopez argued that § 3553(f)(1)’s “and” is plainly
conjunctive, which meant that Lopez was eligible for safety-
valve relief unless he had (A) more than four criminal-
history points, (B) a prior three-point offense, and (C) a prior
two-point violent offense. 4 The government argued, to the
contrary, that Lopez was excluded from safety-valve relief if
he met any of the criteria in subsection (A), (B), or (C) under
§ 3553(f)(1).

3
Lopez initially served three months of imprisonment and then
served thirteen additional months of imprisonment for violating
probation associated with the vandalism conviction.
4
As previously noted, the government and Lopez agreed that he met
the criteria outlined in the remainder of the safety valve, § 3553(f)(2)
through (f)(5).
8 UNITED STATES V. LOPEZ

The district court recognized that whether Lopez’s
vandalism conviction precluded him from safety-valve relief
turned on whether § 3553(f)(1)’s “and” is conjunctive or
disjunctive. The district court concluded that § 3553(f)(1)’s
“and” is ambiguous and invoked the rule of lenity to reach a
conjunctive interpretation. 5 Lopez was eligible for safety-
valve relief under the district court’s conjunctive
interpretation because, although his criminal history met
subsection (B), his criminal history did not meet the criteria
in subsections (A), (B), and (C) under § 3553(f)(1). The
district court sentenced Lopez to four years of imprisonment,
one year less than the five-year mandatory minimum. The
government timely appealed Lopez’s sentence.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s interpretation of a statute.
United States v. Mejia-Pimental, 477 F.3d 1100, 1103 (9th
Cir. 2007) (reviewing de novo a district court’s statutory
interpretation of the safety-valve statute).

III.

A.

The safety-valve provision allows a district court to
sentence a criminal defendant below the mandatory-
minimum sentence for particular drug offenses if a defendant
meets the following five subsections in § 3553(f):

5
The rule of lenity 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).
 UNITED STATES V. LOPEZ 9

(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 . . . ;

(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon . . . in
connection with the [instant drug]
offense;

(3) the [instant drug] offense did not result in
death or serious bodily injury to any
person;

(4) the defendant was not an organizer,
leader, manager, or supervisor of others
in the [instant drug] offense . . . and was
not engaged in a continuing criminal
enterprise . . . ; and

(5) [before] the sentencing hearing, the
defendant has truthfully provided to the
Government all information and evidence
the defendant has concerning the [instant
drug] offense . . . .

18 U.S.C. § 3553(f)(1)–(5).

This case requires us to interpret one of those five
provisions, § 3553(f)(1), which focuses on the defendant’s
10 UNITED STATES V. LOPEZ

prior criminal history as determined under the Sentencing
Guidelines. See generally id. § 3553(f)(1). Before 2018,
§ 3553(f)(1) barred any defendant with more than one
criminal-history point under the Sentencing Guidelines from
safety-valve relief. See Mejia-Pimental, 477 F.3d at 1104.
The low threshold of more than one criminal-history point
resulted in many drug offenders receiving mandatory-
minimum sentences in instances that some in Congress
believed were unnecessary and harsh. Congress recognized
the problem and sought to give district courts more
flexibility. 6

In December 2018, Congress passed the First Step Act,
which amended § 3553(f)(1) and relaxed its criminal-history
disqualifications. First Step Act of 2018, 132 Stat. at 5221.
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). The issue before us is whether
§ 3553(f)(1)’s “and” is conjunctive or disjunctive.

B.

Well-established rules of statutory construction guide
our review in construing § 3553(f)(1). We begin with the
statutory text and end there if the statute’s language is plain.
See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020).
Unless defined in the statute, a statutory term receives its

6
See, e.g., 164 Cong. Rec. S7756 (daily ed. Dec. 18, 2018)
(statement of Sen. Bill Nelson) (asserting that the First Step Act “will
allow judges to . . . use their discretion to craft an appropriate sentence
to fit the crime” and noting one example of a person inexcusably
receiving decades in prison for selling marijuana worth $350).
 UNITED STATES V. LOPEZ 11

“ordinary, contemporary, common meaning.” Perrin v.
United States, 444 U.S. 37, 42 (1979). The “limits of the
drafters’ imagination supply no reason to ignore the law’s
demands.” Bostock, 140 S. Ct. at 1737 (holding that the
clear statutory text in the Civil Rights Act of 1964 prohibited
discrimination based on sexual orientation and gender
identity even though members of Congress in 1964 “might
not have anticipated their work would lead to th[at]
particular result”).

Here, the government concedes that the plain and
ordinary meaning of § 3553(f)(1)’s “and” is conjunctive.
The government’s concession is well taken. 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”).

Even if we had any doubt that Congress intended “and”
in § 3553(f)(1) to receive its plain meaning, one glance at the
Senate’s legislative drafting manual would resolve it.
12 UNITED STATES V. LOPEZ

Indeed, the Senate’s drafting manual instructs that the term
“and” should be used to join a list of conditions—such as
subsections (A), (B), and (C) in § 3553(f)(1)—when a
conjunctive interpretation is intended:

In a list of criteria that specifies a class of
things—(1) use “or” between the next-to-last
criterion and the last criterion to indicate that
a thing is included in the class if it meets 1 or
more of the criteria; and (2) use “and” to
indicate that a thing is included in the class
only if it meets all of the criteria.

Office of the Legislative Counsel, Senate Legislative
Drafting Manual 64 (1997). Therefore, not only is the plain
meaning of “and” conjunctive, but the Senate’s own
legislative drafting manual tells us that “and” is used as a
conjunctive in statutes structured like § 3553(f)(1). This,
too, the government concedes.

In addition to conceding that both the plain meaning of
“and” and the Senate’s legislative drafting manual support a
conjunctive interpretation of § 3553(f)(1)’s “and,” the
government also concedes that § 3553(f)(1)’s structure as a
conjunctive negative proof supports a conjunctive
interpretation. A conjunctive negative proof includes a list
of prohibitions stating, for example, “not A, B, and C.”
Scalia & Garner, supra, at 120. In Reading Law, Justice
Scalia and Bryan Garner provide the following example of a
conjunctive negative proof: “To be eligible, you must prove
that you have not A, B, and C.” Id. A conjunctive negative
proof requires a person to prove that he or she does not meet
A, B, and C, cumulatively. See id. at 119–20 (explaining that
when the term “and” joins a list of prohibitions, “the listed
 UNITED STATES V. LOPEZ 13

things are individually permitted but cumulatively
prohibited”).

Section 3553(f)(1) is a conjunctive negative proof. 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. 18 U.S.C.
§ 3553(f)(1)(A)–(C). This structure requires a defendant to
prove that he or she does meet the criteria in subsections (A),
(B), and (C), cumulatively. See id.; Scalia & Garner, supra,
at 119–20. A conjunctive negative proof may not be very
common, but it involves specific rules of usage that
eliminate any potential ambiguity regarding “and” in statutes
structured like § 3553(f)(1). See Scalia & Garner, supra, at
119–20. The use of “and” in a conjunctive negative proof is
determinative. See id. Rewriting § 3553(f)(1)’s “and” into
an “or,” as the government urges, would mean that we, as
judges, have the power to change § 3553(f)(1)’s entire
structure into a disjunctive negative proof. See id. at 120. 7

Last, the government concedes that the canon of
consistent usage requires us to “presume” that § 3553(f)(1)’s
“and” is a conjunctive. The canon of consistent usage
requires a court to presume that “a given term is used to
mean the same thing throughout a statute” and is “at its most

7
Consider Justice Scalia and Bryan Garner’s example of a
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.
14 UNITED STATES V. LOPEZ

vigorous when a term is repeated within a given sentence.”
See Brown v. Gardner, 513 U.S. 115, 118 (1994). This
canon seeks consistent interpretations of a statutory term.
See id. at 118–20.

The canon of consistent usage is relevant here because
we previously interpreted a different “and” within § 3553(f)
in the conjunctive—the “and” located at the end of
§ 3553(f)(4). See Mejia-Pimental, 477 F.3d at 1101, 1104.
Section 3553(f)(4)’s final “and” joins § 3553(f)(1) (the
provision at issue here), § 3553(f)(2) (prohibiting violence
or possession of a dangerous weapon) § 3553(f)(3)
(prohibiting death or serious bodily injury), § 3553(f)(4)
(prohibiting a leader or organizer role), and § 3553(f)(5)
(requiring certain information to be timely provided to the
government). See id. That is why a criminal defendant must
demonstrate that he or she meets all of these subsections
under § 3553(f) before receiving safety-valve relief. See id.
Because we have already interpreted § 3553(f)(4)’s final
“and” in the conjunctive, the canon of consistent usage
requires us to presume that § 3553(f)(1)’s “and” is also
conjunctive. See Brown, 513 U.S. at 118. And because
§ 3553(f)(4)’s final “and”—as well as § 3553(f)(1)’s
“and”—joins a list of conditions in the same lengthy
sentence within § 3553(f), the presumption of consistent
usage is “at its most vigorous.” See id.

In sum, § 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 lead to only one plausible reading of “and” here.
Section 3553(f)(1)’s “and” is conjunctive. Thus, a defendant
must meet the criteria in subsections (A) (more than four
criminal-history points), (B) (a prior three-point offense),
and (C) (a prior two-point violent offense) to be barred from
 UNITED STATES V. LOPEZ 15

safety-valve relief by § 3553(f)(1). This means one of (A),
(B), or (C) is not enough. A defendant must have all three
before § 3553(f)(1) bars him or her from safety-valve relief.

C.

The government argues that we should disregard
§ 3553(f)(1)’s plain meaning, disregard § 3553(f)(1)’s
structure as a conjunctive negative proof, disregard the
Senate’s legislative drafting manual, and inconsistently
interpret “and” within § 3553(f). The government contends
that § 3553(f)(1)’s “and” remains “ambiguous” and urges us
to resolve that ambiguity by rewriting § 3553(f)(1)’s “and”
into an “or.”

In support, the government cites a handful of cases in
which we construed the statutory term “and” to mean “or”
because not doing so would have (1) rendered other statutory
language superfluous or (2) produced absurd results. See
Confederated Tribes and Bands of Yakama Nation v. Yakima
Cnty., 963 F.3d 982, 990–91 (9th Cir. 2020) (construing the
term “and” disjunctively because not doing so would render
other statutory language superfluous); United States v.
Bonilla-Montenegro, 331 F.3d 1047, 1051 (9th Cir. 2003)
(same); Alaska v. Lyng, 797 F.2d 1479, 1482 n.4 (9th Cir.
1986) (construing the term “and” disjunctively when
interpreting the phrase “prospective community centers and
recreational areas” because not doing so would defy
common sense); see also United States v. Fisk, 70 U.S. (3
Wall.) 445, 447–48 (1865) (construing “and” to mean “or”
when not doing so would produce results that defy common
sense). These cases are distinguishable because they
construed “and” to mean “or” neither in a conjunctive
negative proof like § 3553(f)(1) nor when the canon of
consistent usage required the court to vigorously presume
that “and” is a conjunctive.
16 UNITED STATES V. LOPEZ

But, more to the point, the cases the government cites do
not apply here because giving § 3553(f)(1)’s “and” its plain
meaning neither produces absurd results nor renders other
statutory terms superfluous.

1.

The government first argues that construing
§ 3553(f)(1)’s “and” in the conjunctive produces absurd
results. We may avoid giving a statutory term its plain
meaning if doing so would produce absurd results. See
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.
A., 530 U.S. 1, 6 (2000). But we recently explained that the
absurdity canon 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 most anyone.” In re Hokulani Square, Inc., 776 F.3d
1083, 1088 (9th Cir. 2015) (internal citation and quotation
marks omitted) (emphasis added); see also Crooks v.
Harrelson, 282 U.S. 55, 60 (1930) (“[T]o justify a departure
from the letter of the law upon [the absurdity] ground, the
absurdity must be so gross as to shock the general moral or
common sense” and there “must be something to make plain
the intent of Congress that the letter of the statute is not to
prevail.”).

To avoid absurdity, the plain text of Congress’s statute
need only produce “rational” results, not “wise” results. See
In re Hokulani Square, 776 F.3d at 1088. The bar for
“rational” is quite low. See Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 575–76 (1982) (refusing to rewrite a
federal maritime statute when the statute’s clear text
provided a seaman with more than $300,000 in damages for
only $412 in unpaid wages). This is because the “remedy
for any dissatisfaction with the results in particular
[statutory-construction] cases lies with Congress and not
 UNITED STATES V. LOPEZ 17

with [the courts].” Id. Although “Congress may amend the
statute[,] we may not.” Id. at 576.

In this case, the government contends that construing
§ 3553(f)(1)’s “and” in the conjunctive produces “absurd”
hypothetical results. For instance, the government points out
that a career offender with several drug convictions—but
who never committed a violent act—could possibly become
eligible for safety-valve relief under a conjunctive
interpretation. The government’s hypothetical career
offender presumably would have (A) more than four
criminal-history points and (B) a prior three-point offense,
but not (C) a prior two-point violent offense, under
§ 3553(f)(1). 8

The government’s career-offender hypothetical does not
produce “absurd” results for multiple reasons. First, that
hypothetical does not grapple with the purpose of each
subsection under § 3553(f)(1). Subsection (A) targets
recidivism (more than four criminal-history points),
subsection (B) targets serious offenses (a prior three-point
offense) and subsection (C) targets violence (a prior two-
point violent offense). Congress could have required all
three elements before subjecting a defendant to mandatory-
minimum sentences for drug offenses. Indeed, a conjunctive
interpretation results in § 3553(f)(1) not barring non-violent,
repeat drug offenders from safety-valve relief. But violent,
repeat drug offenders will almost always be barred under a
conjunctive interpretation. When enacting the First Step
8
Notably, 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. See 18 U.S.C. § 3553(f)(2)–(5). And if the career
drug offender did so, a district court would still retain discretion to
sentence the career drug offender above the mandatory-minimum
sentence. See id. § 3553(f).
18 UNITED STATES V. LOPEZ

Act, Congress could have made a policy decision to target
violent drug offenders. This is, at minimum, a “rational”
policy result.

Second, the government’s career-offender hypothetical
focuses only on § 3553(f)(1) and disregards the remainder of
the safety-valve requirements, which the defendant must
also satisfy before becoming eligible for safety-valve relief.
Unlike § 3553(f)(1)’s focus on the defendant’s prior
criminal history, the remainder of the safety-valve statute
focuses on the defendant’s instant offense. See 18 U.S.C.
§ 3553(f)(2)–(5) (prohibiting the defendant from doing the
following in the instant offense—act with or threatening
violence, possessing deadly weapons, inflicting serious
bodily injury, acting as a leader or organizer, and keeping
certain information from the government). When enacting
the First Step Act, Congress could have made a policy
decision that the safety valve should focus more on the
defendant’s instant offense rather than the defendant’s prior
criminal history. This, too, is a “rational” policy result.

Third, if we accepted the government’s absurdity
argument and rewrote § 3553(f)(1)’s “and” into an “or,” we
would create results—not otherwise present under a
conjunctive interpretation—that are arguably more
confounding than the government’s career-offender
hypothetical. For instance, Lopez would lose the possibility
of safety-valve relief only because he spray-painted a sign
onto a building almost fourteen years ago. See id.
§ 3553(f)(1)(B). And a criminal defendant convicted of
selling a small amount of marijuana (such as a marijuana
cigarette), who received a sentence that exceeded thirteen
months of imprisonment, could not receive safety-valve
 UNITED STATES V. LOPEZ 19

relief. 9 See id. (referring to a “3-point offense”); U.S. Sent’g
Guidelines Manual § 4A1.1(a) (explaining that the district
court must “[a]dd three points” to a defendant’s criminal-
history category for each sentence exceeding thirteen
months of imprisonment). The government’s request that
we rewrite § 3553(f)(1)’s “and” into an “or” based on the
absurdity canon is simply a request for a swap of policy
preferences. But dissatisfaction with a statute’s policy
results is an insufficient ground to rewrite Congress’s clear
and unambiguous text. See In re Hokulani Square, 776 F.3d
at 1088 (“The absurdity canon isn’t a license for us to
disregard statutory text where it conflicts with our policy
preferences.”); see also Griffin, 458 U.S. at 575–76.

In the end, Congress amended the safety-valve provision
in 2018 to give district courts discretion to avoid situations
in which drug offenders must receive a sentence that is
unduly harsh because of a mandatory minimum. Because a
conjunctive interpretation of § 3553(f)(1)’s “and” remains
“in harmony with what is thought to be the spirit and purpose
of the act,” this case lacks the “rare and exceptional
circumstances” that allow a court to disregard Congress’s

9
Multiple states allow for such a conviction to result in more than
thirteen months of imprisonment. See, e.g., Ala. Code §§ 13A-12-211,
13A-5-6(a)(2) (requiring a mandatory-minimum sentence of at least two
years imprisonment for selling any amount of marijuana); Miss. Code.
Ann. § 41-29-139(b)(2)(A) (allowing a sentence of imprisonment of not
more than three years for possessing “thirty . . . grams or less” of
marijuana with intent to distribute) (emphasis added); Mo. Ann. Stat.
§§ 558.011, 579.020 (allowing a sentence of imprisonment of not more
than four years for selling thirty-five grams or less of marijuana). Also,
a defendant convicted twice of possessing marijuana for personal use
might be excluded from safety-valve relief. See Ala. Code §§ 13A-12-
213(c), 13A-5-6(a)(4) (allowing a sentence of not more than five years
imprisonment for any person who is convicted twice of possessing
marijuana for personal use).
20 UNITED STATES V. LOPEZ

clear and unambiguous statute via the absurdity canon. See
Crandon v. United States, 494 U.S. 152, 168 (1990) (citation
and quotation marks omitted); see also In re Hokulani
Square, 776 F.3d at 1088.

2.

The government’s next argument involves the canon
against surplusage. This canon of construction requires a
court, if possible, to give effect to each word and clause in a
statute. See Chickasaw Nation v. United States, 534 U.S. 84,
94 (2001); see also Lamie v. United States Tr., 540 U.S. 526,
536 (2004); United States v. Barraza-Lopez, 659 F.3d 1216,
1220 (9th Cir. 2011) (explaining that a court should avoid
interpreting statutes to render any word or clause
superfluous). The government argues that interpreting
§ 3553(f)(1)’s “and” as a conjunctive renders subsection
(A) of § 3553(f)(1) superfluous 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.”

But the government’s argument fails to consider a
defendant who has only one three-point violent offense
under the Sentencing Guidelines; that defendant would have
(B) a “prior 3-point offense” and (C) a “prior 2-point violent
offense” but would have only three criminal-history points,
not (A) “more than 4 criminal history points.” See 18 U.S.C.
§ 3553(f)(1)(A)–(C). Put another way, a three-point violent
offense can simultaneously satisfy two subsections, (B) and
(C), while not satisfying subsection (A). See id. Subsection
(A) is not superfluous under a conjunctive interpretation; it
 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 are no more
than rules of thumb that help courts determine the meaning

10
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. See 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-point 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
offenses 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 meaning 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 especially 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

11
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,
 UNITED STATES V. LOPEZ 23

D.

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 apply
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 criteria 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 discretion 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 as 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

12
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.

E.

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 case
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 alternative 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 expected. 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

13
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 one 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, as 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 points.” 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 constructions 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 does 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 offense, 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 determined 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. 14

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

14
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.
 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 Government’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 most 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 eligible 15 for safety valve relief. See 18
U.S.C. § 3553(f)(1). 16

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

15
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-point 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 United States v. Real-Hernandez, 90 F.3d 356, 361–
62 (9th Cir. 1996) (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.
16
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.