Ninth and Eleventh Circuits Split Over Amended Safety Valve Relief

The Federal Docket

May 24, 2021

A pair of legal opinions from the Ninth and Eleventh Circuits have created a circuit split over the proper interpretation of the amended version of 18 USC 3553(f), popularly known as the “safety valve.” Under Section 3553(f), a defendant charged with drug offenses can be sentenced below the mandatory minimum if he meets several criteria, such as not being a leader in their offense, not using violence or firearms, and having a limited criminal history.

The First Step Act of 2018 expanded the safety valve to allow more individuals with criminal histories to qualify. As written, a defendant can qualify if he or she does not have:

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense
(B) a prior 3-point offense and
(C)a prior 2-point violent offense.

In US v. Lopez, the Ninth Circuit interpreted this provision literally, holding that the word “and” means that three criteria must be read conjunctively. As such, a defendant can have a 2-point prior violent offense, a prior 3-point offense, or more than 4 criminal history points and still qualify for the safety valve, as long as they do not have all three of those things at the same time.

In contrast, the Eleventh Circuit in US v. Garcon interpreted the provision to be disjunctive, meaning that a defendant only qualifies for the safety valve if he does not have any of the three criteria. The Court acknowledged that the word “and” generally makes a list conjunctive but held that the structure of the statute in this case supported reading the provision disjunctively.

The opinions are heavily technical and involve the application of several canons of statutory construction. One major difference in the opinions, for example, is how the courts address the fact that a conjunctive reading of the provision renders other parts superfluous, since a defendant who meets the 3-point offense and the 2-point violent offense requirements would necessarily have more than 4 points. Based on that, the Eleventh applie the surplusage canon, an interpretive principle that laws should be interpreted to avoid superfluous language, to hold that the law must be read in the disjunctive. To avoid surplusage, the Ninth Circuit held that the 2-point violent offense could also be satisfied by a 3-point violent offense.

In practice, the Ninth Circuit’s opinion will allow a significantly higher number of defendants to qualify for safety valve relief, as few defendants are going to meet all three of the requirements under 3553(f)(1) at the same time. On the other side of the country, however, defendants facing the same federal charges in the Eleventh Circuit will have a much harder time qualifying. As other circuits come to their own conclusions, the issue will likely end up before the Supreme Court unless addressed by Congress.

Click here to read the Ninth Circuit opinion.

Click here to read the Eleventh Circuit opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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