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Appellate Courts Split on Application of Safety Valve

The Ninth and Eleventh Circuits came to a Circuit Split on the application of the Safety Valve.

The Safety Valve Application, Generally

The Safety Valve is a portion of federal sentencing law that allows  a person to receive a sentence under   a mandatory minimum given certain conditions.  There are five parts of the “safety valve application.”  Those five parts are found in 18 U.S.C. 3553(f) which says:

...The court shall impose a sentence pursuant to guidelines …without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(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;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the 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 offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan..

Subsection 1 was recently amended by the FIRST STEP Act.  Subsection 1 has to do with a person’s criminal history.  The key thing here is the and in subsection 1 paragraph b.  It says “a prior 3-point offense, as determined under the sentencing guidelines; AND

Lopez’s case:  Ninth Circuit, No. 19-50305

Lopez was charged with a Meth case.  The indictment indicate that he was charged with at least fifty grams or more of importing meth.  This would have triggered five years of mandatory imprisonment under normal circumstances.  Lopez asked for a sentence under the mandatory minimum, indicating that he met the safety valve application.

Lopez had served 13 months for vandalism in 2008.  This led to him receiving a” 3-point offense” under the Sentencing Guidelines:

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

Appeal:  Statutory Interpretation

On appeal, the government conceded that the ordinary meaning of 3443(f)(1)’s “and” is conjunctive.  The government also conceded “that § 3553(f)(1)’s structure as a conjunctive negative proof supports a conjunctive interpretation.”  This means that “to be eligible [for statutory relief], you you must prove that you have not A, B, and C…A conjunctive negative proof requires a person to prove that he or she does not meet A, B, and C, cumulatively.”

“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.”

Statutory Interpretation Helpers

Also, the government conceded that the canon of consistent usage requires the court to “presume” that the “and” is a conjunctive.

Canon Against Surplusage

Of particular note, the government argued that the “canon against surplusage” was relevant here.  The "canon against surplusage" “requires a court, if possible, to give effect to each word and clause in a statute.”  The government used this to argue 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.

The court disagreed:

“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.’”

The court also went on to note that the canon against surplusage was a rule of thumb, not more. And, the court had already ruled against the government from a statutory interpretation standpoint.

Rule of Lenity

Finally, the court in Lopez addressed the Rule of Lenity, a construct that requires ““grievous ambiguity” in criminal statutes to be resolved in favor of a criminal defendant.”  But the court determined that there was no ambiguity here:

“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.”

The Ninth Circuit's Decision

Ultimately the 9th circuit affirmed the district court’s ruling the safety valve application.  The court held that a person can receive the safety valve unless they have all three paragraphs in 18 usc 3553(f)(1):

(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;

Because Lopez did not have all three then Lopez could receive the safety valve.

Garcon's case:  Eleventh Circuit, No. 19-14650

The 11th circuit came to a different decision in Garcon.  Garcon pled guilty to a drug crime that would have led to a five year mandatory minimum sentence.  Like the district court in Lopez, the court stated that “the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.”

The court found that he was eligible for relief because he only had one three point offense.  However, “the district court conceded that its reading would lead to an absurd result that Congress could not have intended. The government appealed.”

Statutory Interpretation Helpers:

Canon Against Surplusage

The 11th circuit stated that the canon against surplusage was violated here.  “If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total.  Because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points. Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.”

This is the same canon that the 9th Circuit stated was not applicable to Lopez.  The canon of surplusage is explained to mean “when we apply the canon, “[i]f a provision is susceptible of (1) a meaning that gives it an effect already achieved by another provision ..., and (2) another meaning that leaves both provisions with some independent operation, the latter should be preferred.”

Rule of Lenity

Further, Garcon’s argument that the “rule of lenity” should be applied was also discarded:  “the rule of lenity applies only if, “after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” The court stated that there was no grievous ambiguity that existed here.  Ultimately the 11th circuit reversed the ruling on the case.

11th Circuit Issues Full Court Opinion on Garcon

The Eleventh Circuit voted to vacate the panel opinion and rehear the appeal en banc.

Beginning with the plain text of the statute, a majority of the en banc court held “and” means “and” and it does not mean “or.” Although the disposition seems like simple semantics, several justices dissented from the majority’s opinion. Even so, the majority provided a simple analogy for the plain reading of 3553(f)(1): “‘You must not do A, B, and C.’ A person violates that prohibition only by doing all three prohibited acts-by doing A, together with B, together with C. A person who does only A, only B, or only C is in the clear.”

Applying this logic, the court held that Garcon’s 3-point offense did not preclude safety valve relief. In responding to the government’s argument that “and” should be read as “or,” the court categorized the government’s reading as “disturbing” and unpersuasive. The majority concluded that the government asked the court to inject words into the statute where they do not appear, a proposition the court expressly disavowed. Moreover, the majority applied the rule of lenity which counseled against the government’s interpretation of the statute.

Accordingly, the en banc court held that to satisfy subsection (1) of 3553(f), a defendant is eligible for safety valve relief so long as he does not have all three listed prior offenses. Because Garcon did not, the Garcon’s original sentence with application of the safety valve was affirmed.

Palomares' Case: Fifth Circuit, 21-40247

Palomares plead guilty to the offense of possession with intent to distribute heroin under 841(b)(1)(A). The statutory sentencing range on such an offense is 10 years to Life. Palomares would be eligible for a guideline range of 97-121 months but the 10 year mandatory minimum led to a calculated guideline range of 120-121 months. Palomares objected to the PSR arguing that she was eligible for relief under the safety valve and “that a plain reading of § 3553(f)(1) only requires mandatory minimum sentences for defendants whose history meets all three disqualifying criteria listed in subsections (A)– (C)—not just one. And because only one of the disqualifying criteria applied to her, she argued that she was eligible for relief.”’

The District court “agreed with the Government’s position that any of the disqualifying criteria in § 3553(f)(1) would render a defendant ineligible for safety valve relief.”  Palomares was sentenced to 120 months.

The Circuit Split

The 5th circuit noted that there are other courts that have weighed in on the split in addition to Garcon and Lopez: “United States v. Pulsifer, 39 F.4th 1018, 1022 (8th Cir. 2022) (concluding that the introductory phrase “does not have” found in § 3553(f)(1) “distributes” across each statutory condition in § 3553(f)(1)(A)–(C)), and United States v. Pace, 48 F.4th 741, 754 (7th Cir. 2022) (holding that § 3553(f)(1) is to be read disjunctively).”

The Fifth Circuit Determines A Defendant Cannot Have any of the Three

The Fifth Circuit indicated that the structure of the text, “utilizing a negative preceding an em-dash followed by a conjunctive list, makes it likely that the phrase ‘does not have’ independently applies to each item in the list (does not have (A), does not have (B), and does not have (C)).” In other words, you could not have any one of the three to receive safety valve relief.

The 5th Circuit Rejected Palomares’ Interpretation Doctrines

Canon Against Surplusage Inapplicable

Similar to the Lopez case, the canon against surplusage, a judicial doctrine meant to show “that courts prefer interpretations that give independent legal effect to every word and clause in a statute.”  However the 5th Circuit did not accept Palomares’ arguments about the Surplusage.

Rule of Lenity Also Inapplicable

The majority opinion also determined that the rule of lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”  However, “an ambiguity is only grievous if it remains after the court considers the statute’s “text, structure, history, and purpose,” id., includingall the “traditional canons of statutory construction,” and here the 5th circuit has indicated that there is no reason to guess at the statute’s meaning here.

The Majority Affirmed Palomares’ denial of the safety valve here:

“We hold that the phrase “does not have” independently applies to each subsection in 18 U.S.C. § 3553(f)(1), rendering criminal defendants ineligible for safety valve relief if they run afoul of any one of its requirements. Because Palomares has a prior 3-point offense, we AFFIRM.”

Sixth Circuit Takes Sides on Post-FSA Safety Valve Interpretation:  Haynes

Haynes argued that he was eligible for relief under the Safety Valve but the district court held that he did not meet those requirements, specifically section (1)(B) because he had a prior conviction where he was assigned three points under the Sentencing Guidelines. He appealed, indicating that he should have received safety valve relief because he did not have more than 2 criminal history points and did not have a prior two-point violent offense.

There is a split in the circuit on this:  The Eleventh Circuit and Ninth Circuits indicate that the “and” in the text means that a defendant must have all three to be denied safety valve relief while the Fifth and Seventh Circuits have held that if a person has any one of the three things, then they do not have safety valve relief.

The Sixth Circuit agreed the fifth and the seventh circuit had the right approach:

“Under the government’s interpretation—for a defendant to obtain relief from an otherwise mandatory-minimum sentence—the defendant must not have any of three disqualifying conditions in his criminal record: first, “more than 4 criminal history points,” itself a fourfold increase over the prior cap; second, a prior offense serious enough to add three points to his criminal record; and third, a prior 2-point “violent offense[.]” Each of those conditions on its face is quite plausibly an independent ground to deny a defendant the extraordinary relief afforded by the safety valve—which means this reading is logically coherent.”

The Sixth Circuit affirmed the judgment of the district court denying Haynes relief.

What Happens Next?

The 9th circuit and the 11th circuit discussed the same issue.  The Ninth Circuit used normal statutory construction, the canon against surplusage and the rule of lenity to determine that Lopez should receive the safety valve.  In doing so, the 9th circuit ruled that in order to be denied the safety valve only upon having all three conditions in 18 USC 3553(f)(1).

The 11th circuit used the same constructions in order to find the opposite thing to be true.  In doing so, the 11th circuit held that if a person has any one of the three conditions in 18 usc 3553(f)(1) then they could not have the safety valve.  This is a massive split in opinions that we believe will mean that these cases will go to the Supreme Court to be decided.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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