Supreme Court to review the scope of the expanded “safety valve.”

Today the Supreme Court granted certiorari in Pulsifer v. United States, No. 22-340, to clarify the First Step Act’s expansion of 18 U.S.C. § 3553(f)’s “safety valve.”

Section 3553(f) permits a district court to sentence a defendant below the otherwise applicable statutory mandatory minimum for federal drug offenses if the defendant meets certain criteria. The 2018 First Step Act expanded this provision.

As relevant here, to be eligible for the safety valve, a defendant must have a limited number of criminal history points. The defendant must “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 ….”

The “and” has been a source of confusion.

Several circuits hold the “and” means a defendant must not have all of those criminal history characteristics. That is, a defendant must not have more than 4 criminal history points AND a 3-point offense AND a 2-point violent offense. If, for example, the defendant has a single 3-point offense, he is still eligible. Similarly, if the defendant has more than 4 criminal history points, but no 3-point offense, he is still eligible. A defendant “must have all three criminal history characteristics to be ineligible” for the safety valve. United States v. Jones, — F.4th — , 2023 WL 2125134 (4th Cir. Feb. 21, 2023); see also United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc); United States v. Lopez, 998 F.3d 431 (9th Cir. 2021).

In contrast, other circuits hold that “and” actually means “or” and that a defendant with any one of those criminal history characteristics is ineligible for the safety valve. See United States v. Palomares, 52 F.4th 640 (5th Cir. 2022); United States v. Pace, 48 F.4th 741 (7th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022); United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022).

The Supreme Court will now decide this issue.