first step act safety valve provision manufacturer

The Federal Safety Valve law permits a sentence in a drug conviction to go below the mandatory drug crime minimums for certain individuals that have a limited prior criminal history. This is a great benefit for those who want a second chance at life without sitting around incarcerated for many years. Prior to the First Step Act, if the defendant had more than one criminal history point, then they were ineligible for safety valve. The First Step Act changed this, now allowing for up to four prior criminal history points in certain circumstances.

The First Step Act now gives safety valve eligibility if: (1) the defendant does not have more than four prior criminal history points, excluding any points incurred from one point offenses; (2) a prior three point offense; and (3) a prior two point violent offense. This change drastically increased the amount of people who can minimize their mandatory sentence liability.

Understanding how safety valve works in light of the First Step Act is extremely important in how to incorporate these new laws into your case strategy. For example, given the increase in eligible defendants, it might be wise to do a plea if you have a favorable judge who will likely sentence to lesser time. Knowing these minute issues is very important and talking to a lawyer who is an experienced federal criminal defense attorney in southeast Michigan is what you should do. We are experienced federal criminal defense attorneys and would love to help you out. Contact us today.

In addition to making retroactive the Fair Sentencing Act’s correction of the disparity between sentences for crack and powder cocaine related offenses, a second hallmark of the FIRST STEP Act is the broadening of the safety valve provision, which dispenses with mandatory minium sentences under certain circumstances. While the Act does not provide for retroactivity of this provision, the United States Sentencing Commission estimates that this change will impact more than 2,000 defendants per year in the future. See Sentence and Prison Impact Estimate Summary (last viewed January 27, 2019).

The safety valve, codified at 18 U.S.C. § 3553(f) and also found in section 5C1.2 of the United States Sentencing Guidelines, permits judges to dispense with statutorily imposed mandatory minimum sentences with regard to violations of 21 U.S.C. §§ 841, 844, 846, 960 and 963, which involve the possession, manufacture, distribution, export and importation of controlled substances. Previously, in order to sentence a defendant without regard to the mandatory minimum sentences for these offenses, the court was required to find the following: 1) the defendant does not have more than one criminal history point; 2) the defendant did not use violence, threats, or possess a dangerous weapon or firearm 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 in the offense, and was not engaged in a continuing criminal enterprise; and 5) the defendant truthfully provided information to the government concerning the offense. See 18 U.S.C. § 3553(f)(1)-(5).

The FIRST STEP Act amends the aforementioned conditions by permitting judges to utilize the safety valve provision even where the defendant has up to four criminal history points, excluding all points for one-point offenses, which are generally minor crimes. However, defendants with prior three-point felony convictions and two-point violent felony convictions are still not permitted to utilize the safety valve. Additionally, the FIRST STEP Act adds 46 U.S.C. §§ 70503 and 70506, which involve the possession, distribution and manufacturing of controlled substances in international waters, to the list of offenses which are covered by the safety valve.

Hiring a top New York criminal defense attorney to defend you in any federal criminal prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.

For reference, these refer to the statutory language of 21 U.S.C. §841(b)(1)(A) and 21 U.S.C. §841(b)(1)(B), which instruct the federal judge on how he or she shall sentence anyone convicted of the manufacture, distribution, or dispensing of a controlled substance (i.e., an illegal drug) or possession with intent to either of these things.

How do you know if you are charged with one of these federal drug crimes that come with a mandatory minimum sentence of either 5-to-40 years (a “b1B” case) or 10-to-life (a “b1A” case)? Read the language of your Indictment. It will specify the statute’s citation.  If you do not have a copy of your Indictment, please feel free to contact my office and we can provide you a copy.

Can’t there be any way to get around that set-in-stone bottom line?  Yes.  There is also a statutory exception which allows the federal judge to dip below that mandatory minimum number of years in some situations.  It is called the “Safety Valve” defense.

The law, 18 U.S.C. § 3553(f), provides for an exception that allows the federal judge some leeway in drug crime convictions where he or she would otherwise be required to follow the mandatory minimum sentencing statute.  This is the Safety Value statute. It states as follows:

(f)Limitation on Applicability of Statutory Minimums in Certain Cases.—Notwithstanding anyother provision of law, in the case of an offense under section 401, 404, or 406 of theControlled Substances Act(21 U.S.C. 841, 844, 846), section 1010 or 1013 of theControlled Substances Import and Export Act(21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission undersection 994 of title 28without 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—

(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 theControlled 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, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

The only way to allow for this exception to be applied in a federal sentencing hearing is for the defense to argue its application and to provide authenticated and admissible support for use of the Safety Valve.

How does the defense do this?  It takes much more than referencing the exception to the general rule itself.  The defense will have to demonstrate the convicted defendant meets the Safety Valve’s five (5) requirements.

For a successful safety valve defense, the defense has to show that the total Criminal History Points are four (4) or less.  If you have a maximum of four Criminal History points, you have met the first criteria for the safety valve.

Note:  prior to the passage of the First Step Act, things were much harsher.  If the defense had even two Criminal History Points, then the accused was ineligible for the safety valve.  The First Step Act increased the number of points, or score, from one to four as the maximum allowed for application of the safety valve.  For more on the First Step Act, see The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2 and The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2.

Looking at the Safety Valve statute ( 18 U.S.C. § 3553(f)), the second step in achieving application of the safety valve defense involves the circumstances of the underlying criminal activity and whether or not it involved violence of threats or violence, or if the defendant possessed a firearm at the time.

It has been my experience that it is pretty common for there to be a firearm of some sort involved in a federal drug crime prosecution.  Here, the impact of Texas being a part of the Fifth Judicial District for the United States Court of Appeals (“Fifth Circuit”) is important.

In the USSG, two points are given (“enhanced”) for possessing a firearm in furtherance of a federal drug trafficking offense.  See,  USSG §2D1.10, entitled Endangering Human Life While Illegally Manufacturing a Controlled Substance; Attempt or Conspiracy.

Meanwhile, the Fifth Circuit has ruled that under the Safety Valve Statute, the standard for the government  is much higher. According to their ruling, in order to be disqualified from application of the safety valve because of possession of a firearm, the defendant has to have been actually in possession of the firearm or in construction possession of it. See, US v. Wilson, 105 F.3d 219 (5th Cir. 1997).

This is the example of the importance of effective criminal defense representation, where research reveals that it is easier to achieve a safety valve defense with a reference to case law.  The Fifth Circuit allows a situation where someone can get two (2) points under the USSG (“enhancement”) and still be eligible for the safety valve defense.

The commentary to § 5C1.2(2) provides that “[c]onsistent with [U.S.S.G.] § 1B1.3 (Relevant Conduct),” the use of the term “defendant” in § 5C1.2(2) “limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” See U.S.S.G. § 5C1.2, comment. (n.4). This language mirrors § 1B1.3(a)(1)(A). Of import is the fact that this language omits the text of § 1B1.3(a)(1)(B) which provides that “relevant conduct” encompasses acts and omissions undertaken in a “jointly undertaken criminal activity,” e.g. a conspiracy.

Being bound by this commentary, we conclude that in determining a defendant’s eligibility for the safety valve, § 5C1.2(2) allows for consideration of only the defendant’s conduct, not the conduct of his co-conspirators. As it was Wilson’s co-conspirator, and not Wilson himself, who possessed the gun in the conspiracy,the district court erred in concluding that Wilson was ineligible to receive the benefit of § 5C1.2. Because application of § 5C1.2 is mandatory, see U.S.S.G. § 5C1.2 (providing that the court “shall” impose a sentencing without regard to the statutory minimum sentence if the defendant satisfies the provision’s criteria), we vacate Wilson’s sentence and remand for resentencing.

The defense must also be able to prove that the defendant’s role in the underlying criminal offense did not result in the death or bodily injury of someone else to achieve the safety valve defense under  18 U.S.C. § 3553(f).

In drug cases, this can mean more than some type of violent scenario.  The mere type of drug or controlled substance involved can impact the success of this defense.  Sometimes, the drugs themselves are the type that can cause severe harm or death.  Several controlled substances can be lethal.  In a federal drug case, there is a special definition for death resulting from the distribution of a controlled substance.

If the defense can prove with authenticated and admissible evidence that the defendant did not distribute a drug or controlled substance that ended up with someone’s death, or severe bodily injury, then the safety valve defense will be available to them.

Role adjustments happen when someone is alleged to be involved in a conspiracy, and they act in some type of position of responsibility.  They can be a leader, or organizer, or somebody who supervises other people in the operations, all as defined in the USSG.

If you are to achieve the safety valve defense, you cannot receive any “role adjustment” under the Sentencing Guidelines.  This must be established to the court by your defense attorney at the sentencing.

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, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

I realize that for many people, this language brings with it the assumption that the defendant has to be a snitch in order to meet this requirement for the safety valve defense.  This is not true.

With an experienced criminal defense lawyer, what it does mean is that the defendant has a meeting with the authorities with the goal of meeting the Safety Valve Statute requirements and no more.

The attorney can limit the scope of the meeting.  He or she can make sure that law enforcement follows the rules for the meeting.   The meeting is necessary for the defendant to achieve a safety valve defense, so there is no way to avoid a safety valve interview.

I arranged for my client to have his safety valve meeting as well as establishing the other criteria needed for application of the Safety Valve statute.  I was present at the meeting.  There was no cooperation regarding the other defendants, and he did nothing more than the minimum to qualify for the defense.  He was no snitch.

As a result, the safety valve was applied by the federal judge and my client achieved a safety valve application where he was sentenced to 8 years for distribution of meth: well below the 10 years of the mandatory minimums and the USSG calculation in his case of around 14 years.

Sadly, the same day that my client was sentenced, so were several of the co-conspirator defendants.  I was aware that they were also eligible for the safety valve defense.  However, the federal agent at the sentencing hearings that day told me that their lawyers never contact the government for a safety valve meeting.

They were never debriefed, so they could not meet the requirements for application of the safety value statute.  The judge had no choice –they each had to be sentenced to the mandatory minimum sentences under the law.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. ERIC LOPEZ, No. 19-50305 D.C. No. 3:19-cr-00261-L-1 Defendant-Appellee. OPINION 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 threepoint 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 “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). 1 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 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 2 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 criminalhistory 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 criminalhistory 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 2point 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 safetyvalve relief unless he had (A) more than four criminalhistory 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). Lopez initially served three months of imprisonment and then served thirteen additional months of imprisonment for violating probation associated with the vandalism conviction. 3 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). 4 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 safetyvalve 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 mandatoryminimum sentence for particular drug offenses if a defendant meets the following five subsections in § 3553(f): 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). 5 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 mandatoryminimum 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 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). 6 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 things are individually prohibited”). permitted but 13 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. 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 twopoint violent offense). Congress could have required all three elements before subjecting a defendant to mandatoryminimum 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 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). 8 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 criminalhistory 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 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-12213(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). 9 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 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. 10 Here, in the safety-valve context, we are not “adding” criminalhistory 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 mandatoryminimum 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 A few senators noted that the First Step Act would help “lowlevel, 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. 12 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 offen