Under 18 U.S.C. § 3553(f), the so-called “safety valve” provision, district courts have a limited power to impose a sentence below the statutory mandatory minimum in certain drug cases. The defendant’s offense must not involve particular aggravating factors (violence, guns) and the defendant must have a limited criminal history. But how limited?
The 2018 First Step Act expanded this provision to apply to any defendant who “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 ….”
But is that “and” an “and” or an “or”? In other words, is any one of these criteria (4 points or a 3-point offense or a 2-point violent offense) disqualifying or is a …