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.
2 UNITED STATES V. LOPEZ

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.
UNITED STATES V. LOPEZ 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 
4 UNITED STATES V. LOPEZ

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 
UNITED STATES V. LOPEZ 5

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.