United States of America v. Eric Lopez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ERIC LOPEZ,
Defendant-Appellee.
No. 19-50305
D.C. No. 3:19-
cr-00261-L-1
ORDER
Filed January 27, 2023
Mary H. Murguia, Chief Judge, and Danny J. Boggs* and
Milan D. Smith, Jr., Circuit Judges.
Order;
Statement by Judge R. Nelson
* The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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SUMMARY**
Criminal Law
The panel denied on behalf of the court a petition for
rehearing en banc in a case in which the panel held that the
word “and” in the First Step Act’s safety-valve provision, 18
U.S.C. § 3553(f)(1), is unambiguously conjunctive.
In a statement regarding denial of rehearing en banc,
Judge R. Nelson wrote that given the deep circuit split on
whether “and” means “or” in § 3553(f), the issue warrants
Supreme Court review, and if the Supreme Court does not
resolve this split, this court should review the issue en banc
in a subsequent case.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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U NITED STATES V. L OPEZ 3
ORDER
The panel has voted to deny the petition for rehearing en
banc.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED (Doc. 49).
R. NELSON, Circuit Judge, statement regarding denial of
rehearing en banc:
The issue presented in this case—whether “and” means
“or” in the First Step Act’s “safety valve” provision, 18
U.S.C. § 3553(f)—needs clarity. Courts and judges around
the country have split on this issue. Given the deep split, this
issue warrants Supreme Court review. If the Supreme Court
does not resolve this split, we should review this issue en
banc in a subsequent case.
This case involves the so-called “safety valve” provision
of the First Step Act, 18 U.S.C. § 3553(f), and turns on a
straightforward question: Does “and” mean “and” or “or”?
A seemingly simple question has eluded courts of appeal,
who are deeply split. This court and the Eleventh Circuit
(sitting en banc) hold that defendants are disqualified from
safety-valve relief only if they meet all three criminal-history
criteria listed in § 3553(f)(1), while the Fifth, Sixth, Seventh,
and Eighth Circuits hold that possessing any one of the
criteria is disqualifying. Compare United States v. Lopez,
998 F.3d 431, 433 (9th Cir. 2021) and United States v.
Garcon, 54 F.4th 1274, 1276 (11th Cir. 2022) (en banc) with

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4 U NITED STATES V. L OPEZ
United States v. Palomares, 52 F.4th 640, 643–45 (5th Cir.
2022), United States v. Haynes, __ F.4th __, 2022 WL
17750939, at *3–4 (6th Cir. 2022), United States v. Pace, 48
F.4th 741, 754–55 (7th Cir. 2022), and United States v.
Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022).
What’s more, there is even disagreement among each
side of the split. See, e.g., Garcon, 2022 WL 17479829, at
*17 (Branch, J., dissenting) (“The Fifth Circuit and Eighth
Circuit held that the ‘and’ bears a conjunctive but
distributive meaning; the Seventh Circuit held that the ‘and’
is disjunctive.”). Not to mention multiple concurrences and
dissents. Seventeen judges in six circuits have now offered
their unique take on this same question.
The present degree of circuit court confusion warrants
Supreme Court review. The question here—which governs
whether district courts must “impose a sentence . . . without
regard to any statutory minimum,” 18 U.S.C. § 3553(f)—is
especially important and implicates how individuals are
deprived of their liberty. There is also a heightened need for
consistency in criminal sentencing. Disagreement among
the circuits will lead to disparate administration of justice
across the country, with defendants with identical criminal
histories sentenced differently (sometimes significantly so)
in federal court depending on where they live.
So why not call this case en banc? A court of appeals’
en banc power is meant to allow “for more effective judicial
administration.” Textile Mills Sec. Corp. v. Comm’r, 314
U.S. 326, 334–35 (1941). In my view, en banc review—with
its considerable expenditure of time and resources—is better
reserved for a subsequent case if necessary.
A circuit split will exist whether this court changes its
position, meaning we cannot satisfy “the overriding need for

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national uniformity” that often justifies en banc review. 9th
Cir. Rule 35-1. Only the Supreme Court can resolve the
entrenched division in the lower courts. Cf. Green v. Santa
Fe Indus., Inc., 533 F.2d 1309, 1310 (2d Cir. 1976) (per
curiam) (“This Court has denied en banc . . . not because we
believe these cases are insignificant, but because they are of
such extraordinary importance that we are confident the
Supreme Court will accept these matters under its certiorari
jurisdiction . . . .”). Of course, an “airing of competing
views” can often “aid[]” the Supreme Court’s “own
decisionmaking process.” Dep’t of Homeland Sec. v. New
York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in
the grant of stay). But over a dozen federal appellate
judges—including members of this court—have already
weighed in with thoughtful opinions representing a diversity
of views. The time and labor required to produce yet another
set of writings from our court en banc for the Supreme Court
to consider does not seem worth the candle at this stage. This
case also may not be the best vehicle for en banc review,
given that Lopez’s scheduled release date has already
passed—potentially raising procedural complications.
If the Supreme Court declines to resolve the present
circuit split, we should consider in a subsequent case
whether to align our court with the current majority view
held by the Fifth, Sixth, Seventh, and Eighth Circuits.

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