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 defendant only disqualified from the safety valve if he has all of them? After passage of the First Step Act, this question divided the circuits.
In Pulsifer v. United States, No. 22-340 (March 15, 2024), the Supreme Court holds that a defendant is disqualified from the safety valve if he has any of these criminal history characteristics. This means that any 2-point violent offense, or any 3-point offense, by itself will prevent application of the safety valve.
I decline to bore you with Justice Kagan’s analysis for the majority as to why “and” means “or” in this context. The reasoning wanders from basic grammar, to “[s]ome grade-school math notation,” to a “half-remembered line from childhood” (quoting no less an authority than Eric Carle’s The Very Hungry Caterpillar), to the text of Article III, until, on page 16, we “[b]egin with superfluity.” And after 27 pages of this, Justice Kagan rejects application of the rule of lenity because § 3553(f)(1) is not “genuinely ambiguous” (though “[t]here are, to be sure, two grammatically permissible readings of the statute”).
Suffice to say, in the words of the majority, § 3553(f)(1) “creates an eligibility checklist, and demands that a defendant satisfy every one of its conditions.”
If you’re keeping track, Justice Gorsuch, joined by Justices Sotomayor and Jackson, dissent. The dissent closes with a lament of the majority’s analysis, adding: “All to what end? To deny some individuals a chance—just a chance—at relief from mandatory minimums and a sentence that fits them and their circumstances. It is a chance Congress promised in the First Step Act, and it is a promise this Court should have honored.”
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