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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14650
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JULIAN GARCON,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cr-80081-JIC-1
____________________
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19-14650 Opinion of the Court 2
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
and BRASHER, Circuit Judges.
WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court,
in which WILSON, JILL PRYOR, NEWSOM, LUCK, and LAGOA, Circuit
Judges, join.
ROSENBAUM, Circuit Judge, filed an opinion concurring in the
judgment.
NEWSOM, Circuit Judge, filed a concurring opinion, in which
LAGOA, Circuit Judge, joins.
JORDAN, Circuit Judge, filed a dissenting opinion.
BRANCH, Circuit Judge, filed a dissenting opinion, in which GRANT
and BRASHER, Circuit Judges, join, and JORDAN, Circuit Judge, joins
as to Part I, II, III.A, and III.B.
BRASHER, Circuit Judge, filed a dissenting opinion.
WILLIAM PRYOR, Chief Judge:
The question presented in this appeal of a grant of safety-
valve relief is whether, in the First Step Act, the word “and” means
“and.” The Act empowers a court to grant a criminal defendant
relief from a mandatory minimum sentence, but that relief is
available only if “the defendant does not have” “more than 4
criminal history points,” “a prior 3-point offense[,] . . . and . . . a
prior 2-point violent offense.” 18 U.S.C. § 3553(f )(1) (emphasis
added). Julian Garcon, who pleaded guilty to attempting to possess
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500 grams or more of cocaine with intent to distribute, has a prior
3-point offense but does not have more than 4 criminal history
points or a prior 2-point violent offense. The district court
concluded that Garcon remained eligible for relief under the Act
because he did not have all three characteristics. We agree. Because
the conjunctive “and” joins together the enumerated
characteristics, a defendant must have all three before he is
ineligible for relief. We affirm.
I. BACKGROUND
Julian Garcon was indicted in 2019 for attempting to possess
500 grams or more of cocaine with intent to distribute. See 21
U.S.C. §§ 841(a), 846. The offense carried a statutory minimum
sentence of five years’ imprisonment. See id. § 841(b)(1)(B)(ii).
Garcon pleaded guilty.
At sentencing, Garcon asked the district court to apply the
so-called “safety valve” of the First Step Act, 18 U.S.C. § 3553(f ).
Section 3553(f ) provides that, for certain crimes, including the
crime Garcon committed, the sentencing court “shall impose a
sentence pursuant to [the United States Sentencing] [G]uidelines
. . . without regard to any statutory minimum sentence, if the court
finds at sentencing” that the defendant satisfies each of five
numbered subsections. See id. § 3553(f )(1)–(5). The first
subsection—the requirement in dispute here—provides as follows:
(1) the defendant does not have—
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(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[.]
Id. § 3553(f )(1).
Garcon has a prior 3-point offense, and the parties disagreed
about whether that prior offense disqualified Garcon from
receiving safety-valve relief. Garcon argued that the use of the
conjunctive “and” to join the subsections, see id. § 3553(f )(1)(B),
meant that he would be ineligible for relief only if he had more than
4 criminal history points, a prior 3-point offense, and a prior 2-point
violent offense. And because he does not have a prior 2-point
violent offense or more than 4 criminal history points, Garcon
argued that he remained eligible for safety-valve relief. The
government took the opposite view, arguing that Garcon was
ineligible because, “if any of th[e] three [subsections] apply, . . . the
defendant doesn’t qualify for the safety valve . . . .” (Emphasis
added.)
The district court agreed with Garcon. It ruled that “[t]he
plain meaning of the statute requires all three subsections of
[section] 3553(f )(1) to be met before the defendant becomes
ineligible for [the] safety valve.” To hold otherwise, the district
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court explained, would require it to replace the word “and” with
the word “or.” And although it considered the “result” “absurd”
and the legislative history supportive of the government’s reading,
the district court explained that those considerations did not alter
its analysis because “[t]he statute, as written, is unambiguous.” So,
the district court applied the safety valve, calculated the applicable
guidelines range, and imposed a sentence of 36 months’
imprisonment.
A panel of this Court disagreed. United States v. Garcon, 997
F.3d 1301 (11th Cir. 2021). The panel reasoned that the word “and”
in subsection (f )(1) means “or.” See id. at 1305. We voted to vacate
the panel opinion and to rehear the appeal en banc. United States
v. Garcon, 23 F.4th 1334 (11th Cir. 2022).
II. STANDARD OF REVIEW
“We review de novo questions of statutory interpretation.”
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).
III. DISCUSSION
We divide our discussion in two parts. We first explain why
Garcon was eligible for safety-valve relief despite his prior 3-point
offense. We then reject the government’s arguments to the
contrary.
A. “And” Means “And.”
We begin, as we must, with the text of the statute. See Ross
v. Blake, 136 S. Ct. 1850, 1856 (2016). And we are guided in our
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interpretation of the text by the ordinary-meaning canon, “the
most fundamental semantic rule of interpretation.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS § 6, at 69 (2012). The command of the canon is
simple: “our job is to interpret the words consistent with their
ordinary meaning at the time Congress enacted the statute,” Wis.
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (alteration
adopted) (internal quotation marks omitted), “unless the context in
which the word[s] appear[]” suggests some other meaning,
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012).
The parties’ dispute turns on the meaning of the word “and”
in section 3553(f )(1), so we consider the ordinary meaning of that
word. “And” means “along with or together with.” And,
WEBSTER’S THIRD NEW INT’L DICTIONARY (1993). So when “and” is
used to connect a list of requirements, the word ordinarily has a
“conjunctive” sense, meaning that all the requirements must be
met. See United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620–
21 (2021). For example, if a statute provides, “You must do A, B,
and C,” it is not enough to do only A, only B, or only C; “all three
things are required”—A, together with B, together with C. See
SCALIA & GARNER, supra, § 12, at 116.
The word “and” retains its conjunctive sense when a list of
requirements follows a negative. See id. § 12, at 119. Consider the
prohibition, “You must not drink and drive.” To comply, a person
may do either activity by itself but may not do both. Id.; see also
United States v. Palomares, 52 F.4th 640, 653 (5th Cir. 2022)
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(Willett, J., dissenting). Similarly, consider the command, “You
must not do A, B, and C.” A person violates that prohibition only
by doing all three prohibited acts—by doing A, together with B,
together with C. See SCALIA & GARNER, supra, § 12, at 119. A
person who does only A, only B, or only C is in the clear.
Applying these principles to section 3553(f )(1), Garcon’s
prior 3-point offense does not disqualify him from safety-valve
relief. Section 3553(f )(1) begins with a negative—“the defendant
does not have”—and the three requirements that follow are joined
by an “and.” See 18 U.S.C. § 3553(f )(1). So a defendant runs afoul
of the provision and loses eligibility for relief only if all three
conditions in subsections (A) through (C) are satisfied. That is, to
lose eligibility for relief, a defendant must have “more than 4
criminal history points, excluding any . . . 1-point offense,”
together with “a prior 3-point offense,” together with “a prior 2-
point violent offense.” See id. Because Garcon has a prior 3-point
offense but does not have 4 criminal history points (excluding any
1-point offense), or a prior 2-point violent offense, he is eligible for
safety-valve relief.
Context confirms this reading. Ordinarily, we presume that
“identical words used in different parts of the same act are intended
to have the same meaning.” Util. Air Regul. Grp. v. Env’t Prot.
Agency, 573 U.S. 302, 319 (2014) (internal quotation marks
omitted). The five numbered subsections of section 3553(f ) are
joined by the word “and” in subsection (f )(4):
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[T]he court shall impose a sentence pursuant to [the]
guidelines . . . if the court finds at sentencing . . .
that—
(1) the defendant 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;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon . . . in connection with the
offense;
(3) the offense did not result in death or serious bodily
injury to any person;
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense . . .
and was not engaged in a continuing criminal
enterprise . . . ; and
(5) . . . the defendant has truthfully provided to the
Government all information and evidence the
defendant has concerning the offense . . . .
18 U.S.C. § 3553(f ) (emphasis added). The parties agree that the
“and” used to join the larger list is conjunctive. See also Palomares,
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52 F.4th at 654 (Willett, J., dissenting). That is, the sentencing court
must find that a defendant satisfies each of subsections (f )(1)
through (f )(5) before it may depart from a statutory minimum
sentence. Because the “and” in subsection (f )(4) is conjunctive, the
presumption of consistent usage instructs us to presume that the
word “and” has the same sense when the word appears in
subsection (f )(1). See Brown v. Gardner, 513 U.S. 115, 118 (1994)
(explaining that the “presumption that a given term is used to mean
the same thing throughout a statute” is “at its most vigorous when
a term is repeated within a given sentence”).
Another aspect of the presumption of consistent usage is the
principle that, ordinarily, “a material variation in terms suggests a
variation in meaning,” SCALIA & GARNER, supra, § 25, at 170, and
this principle too supports our interpretation. When conditions in
section 3553(f ) are disjunctive, the statute employs the word “or.”
For example, the statute provides that a defendant is eligible for
safety-valve relief only if he “did not use violence or credible threats
of violence or possess a firearm or other dangerous weapon . . . in
connection with the offense.” 18 U.S.C. § 3553(f )(2) (emphases
added). In other words, any one of the conditions—violence,
credible threats, or possession—is disqualifying. Similarly, the
statute provides that relief is available only if “the defendant was
not an organizer, leader, manager, or supervisor of others in the
offense.” Id. § 3553(f )(4) (emphasis added). Again, it is disqualifying
to have performed any one of the listed roles. Because the statute
uses a negative followed by the disjunctive “or ” to convey that
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satisfaction of a single condition in a list is disqualifying, we
presume a variation in meaning when the statute employs a
negative followed by the conjunctive “and.”
Our reading is also buttressed by the Senate’s legislative
drafting manual, which “support[s] a conjunctive interpretation of
[section] 3553(f )(1)’s ‘and.’” United States v. Lopez, 998 F.3d 431,
436 (9th Cir. 2021); cf. Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U.S. 50, 60–61 (2004) (relying on “standard interpreting guides,”
including the House and Senate legislative drafting manuals, to
interpret a statute). The manual instructs drafters on the proper use
of “and” and “or,” directing them to use “and” as a conjunctive and
“or” as a disjunctive:
IN GENERAL.—In a list of criteria that specifies a class
of things—
(1) use ‘‘or’’ between the next-to-last criterion and the
last criterion to indicate that a thing is included in the
class if it meets 1 or more of the criteria; and
(2) use ‘‘and’’ to indicate that a thing is included in the
class only if it meets all of the criteria.
Senate Off. of the Legis. Couns., Legis. Drafting Manual § 302(a)
(1997). This directive supports our interpretation that a defendant
is ineligible for safety-valve relief only if he “meets all of the
criteria” in section 3553(f )(1)—that is, only if he has all three
prohibited conditions. See id.; Lopez, 998 F.3d at 436 (“[T]he
Senate’s own legislative drafting manual tells us that ‘and’ is used
as a conjunctive in statutes structured like [section] 3553(f)(1).”).
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B. “And” Does Not Mean “Or.”
The government resists our reading. The government
argues that, under a “distributive reading” of the word “and,” any
one of the prohibitions listed in section 3553(f )(1) is disqualifying.
It argues that the interpretation by the district court results in
surplusage. It argues that the absurdity doctrine counsels against
that interpretation. And it argues that legislative history supports
its interpretation. We address and reject each argument in turn.
And we explain why we must reach the same conclusion even if
there were some merit to the government’s arguments.
1. The Government’s “Distributive Reading” Is Unpersuasive.
Although the government concedes that “and” should be
treated “as conjunctive,” it argues that “a distributive reading offers
the only natural interpretation of ” section 3553(f )(1). Under this
reading, “the negative prefatory phrase [‘does not have’] distributes
to modify each of the items severally,” such that “a defendant is
eligible for safety-valve relief under [section] 3553(f )(1) [only] if he
does not have any of the listed criminal-history conditions.”
Essentially, the government invites us to read “and” to mean “or,”
even as it concedes elsewhere in its briefs that this reading is
mistaken. Neither the government nor our dissenting colleagues
offer any authority that adopts this novel reading of “and,” other
than recent decisions by our sister circuits that concern the same
statutory provision. United States v. Palomares, 52 F.4th 640, 643–
45 (5th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018, 1021–22
(8th Cir. 2022). We decline to adopt that novel reading when it
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appears to have been crafted by the government specifically for this
statute to achieve its preferred outcome.
The government is asking us to inject the words “does not
have” into the statute where they do not appear. In the
government’s view, the statute should essentially be read as
follows: A defendant is eligible for the safety valve if he (A) does
not have more than 4 criminal history points (excluding 1-point
offenses); (B) does not have a prior 3-point offense; and (C) does
not have a prior 2-point violent offense. But we must “take the
provision as Congress wrote it, and neither add words to nor
subtract them from it.” Korman v. HBC Fla., Inc., 182 F.3d 1291,
1296 (11th Cir. 1999).
The government supplies examples of its distributive
reading of the phrase “not . . . and,” but those examples are
unpersuasive. It gives as an example the advice, “To be healthy,
you must not drink and smoke.” And it asserts that a reader “would
reasonably distribute the prefatory phrase ‘you must not’ to each
item individually,” in effect turning the conjunctive “and” into a
disjunctive “or.” To be sure, a reader might understand the “and”
in the example as a disjunctive. “But that understanding has little
to do with syntax and everything to do with our common
understanding that” drinking and smoking can be harmful
individually. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174
(2021) (Alito, J., concurring in the judgment). So a reasonable
reader might assume that the “and” was inserted inartfully in place
of the more natural “or.” Another of the government’s examples—
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the prohibition, “[y]ou must not lie, cheat, and steal”—is
unpersuasive for the same reason. Indeed, it is no coincidence that
the more common wording of the prohibition uses an “or” instead
of an “and”: “You must not lie, cheat, or steal.” See, e.g., Van Orden
v. Perry, 545 U.S. 677, 715 (2005) (Stevens, J., dissenting) (“The
State may admonish its citizens not to lie, cheat, or steal . . . .”);
Andrews v. Knowlton, 509 F.2d 898, 902 (2d Cir. 1975) (“The Cadet
Honor Code in force at the United States Military Academy
consists of a single maxim: ‘A cadet does not lie, cheat or steal or
tolerate those who do.’”).
Nor does the government’s position find support in the
similarly named “distributive canon.” The canon “recognizes that
sometimes where a sentence contains several antecedents and
several consequents, courts should read them distributively and
apply the words to the subjects which, by context, they seem most
properly to relate.” Encino Motorcars, LLC v. Navarro, 138 S. Ct.
1134, 1141 (2018) (alteration adopted) (internal quotation marks
omitted); see also SCALIA & GARNER, supra, § 33, at 214
(“Distributive phrasing applies each expression to its appropriate
referent.”). For example, “a rule stating that ‘[m]en and women are
eligible to become members of fraternities and sororities’ cannot
reasonably be read to suggest an unconventional commingling of
sexes in the club membership.” SCALIA & GARNER, supra, § 33, at
214. Put simply, application of the distributive canon is like
inserting the word “respectively” at the end of two connecting lists.
The canon has no application here because there is no list of
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antecedents to match to a corresponding list of consequents—no
series of lists that can be clarified with the word “respectively.” Cf.
Facebook, 141 S. Ct. at 1172 (“[T]he canon’s relevance is highly
questionable given there are two antecedents . . . but only one
consequent modifier.”).
2. The Ordinary Meaning of “And” Does Not Produce a
Surplusage.
The government next contends that we should adopt its
interpretation of section 3553(f )(1) to avoid rendering part of the
section superfluous. The government asserts that a defendant who
has “a prior 3-point offense,” 18 U.S.C. § 3553(f )(1)(B), and a “prior
2-point violent offense,” id. § 3553(f )(1)(C), will necessarily also
have “more than 4 criminal history points,” see id. § 3553(f )(1)(A).
So, the government argues that a conjunctive reading of “and”
would render subsection (f )(1)(A) superfluous in a way that a
disjunctive reading would not. We disagree.
The superfluity argument has superficial appeal—after all, as
our dissenting colleagues helpfully remind us, three plus two is
more than four, Branch Dissenting at 16—but it rests on the
mistaken premise that a defendant who satisfies subsections
(f )(1)(B) and (f )(1)(C) will always satisfy subsection (f )(1)(A). To
the contrary, there are at least two circumstances in which a
defendant could have “a prior 2-point violent offense” and “a prior
3-point offense . . . under the sentencing guidelines” but fewer than
five “criminal history points.” See 18 U.S.C. § 3553(f )(1). Under the
sentencing guidelines, a two-point offense adds no points to the
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defendant’s criminal-history score if the sentence was imposed
more than 10 years before the defendant commenced the present
offense. UNITED STATES SENTENCING GUIDELINES MANUAL
§ 4A1.1(b) & cmt. n.2 (Nov. 2018). Similarly, a three-point offense
does not contribute to the criminal-history score if the defendant
finished serving the sentence more than 15 years before
commencing the present offense. Id. § 4A1.1(a) & cmt. n.1. So, for
example, a defendant could have 20-year-old two-point and three-
point offenses, satisfying subsections (B) and (C), but score zero
criminal history points and fall below the threshold in subsection
(A). See Palomares, 52 F.4th at 659 (Willett, J., dissenting).
The second circumstance in which a defendant could have
two- and three-point offenses but fewer than five criminal history
points occurs when the two- and three-point offenses are treated as
a single sentence. The guidelines treat separate offenses as a single
sentence for criminal-history purposes when the sentences result
from offenses charged in the same instrument or when they were
imposed on the same day. Id. § 4A1.2(a)(2). When separate offenses
are counted as a single sentence, the district court calculates the
term of imprisonment based on the longest sentence if the
sentences were imposed concurrently or the total of both sentences
if they were imposed consecutively. Id. So, for example, a
defendant could have a two-point and a three-point offense
charged in the same instrument, satisfying subsections (B) and (C),
but score only three criminal history points and fall below the
threshold in subsection (A).
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The government argues that “if an offense is too old to score
any points under the [g]uidelines, then it is not a ‘prior [2- or] 3-
point offense, as determined under the sentencing guidelines,’” see
18 U.S.C. § 3553(f )(1)(B), but the statute itself refutes this
argument. Section 3553(f)(1)(A) directs courts to consider whether
the defendant has “more than 4 criminal history points, excluding
any criminal history points resulting from a 1-point offense.” That
is, the subsection distinguishes between points associated with an
“offense”—points that may or may not count towards the criminal
history score—and the final tally of “criminal history points.” The
subsection would be nonsensical if the government were correct
that offenses may have points associated with them only when
those points contribute to the final criminal history score. The text
forecloses that reading.
To be sure, our interpretation requires reading “prior 3-
point” and “2-point violent offense[s],” id. § 3553(f )(1)(B)–(C), to
include offenses that do not contribute to the total criminal-history
score, but this reading is a function of the statutory text. The
guidelines are not framed around “offenses”; they instead instruct
sentencing courts to add points to the defendant’s criminal-history
score for his “prior sentence[s] of imprisonment.” See U.S.S.G.
§ 4A1.1. So the meaning of “a prior . . . offense” must come from
section 3553(f ), not from the guidelines. See 18 U.S.C. § 3553(f )
And, as we have explained, section 3553(f ) distinguishes between
“hav[ing] . . . criminal history points” and “hav[ing] . . . offense[s].”
See id. Under the statute, criminal-history points are those that are
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actually scored, and a three-point offense is one that would add
three points to the score, all else being equal.
To the extent that the guidelines offer clues about the
meaning of “a prior . . . offense,” id., the guidelines support our
interpretation. Like section 3553(f )(1), the guidelines use the word
“offense” to refer to convictions that may or may not contribute to
a criminal history score. Section 4A1.2, for example, describes in
what instances “offenses are counted.” U.S.S.G. § 4A1.2(c). It
provides that most “[s]entences for misdemeanor and petty
offenses are counted,” but then lists the “prior offenses and offenses
similar to them” that “are never counted” or that “are counted
only” in certain circumstances. See id. And like section 3553(f )(1),
the guidelines delineate between the number of points for prior
sentences and the calculation of a criminal history score. For
example, under the guidelines, a “prior sentence of imprisonment
exceeding one year and one month” is worth “3 points.” Id.
§ 4A1.1(a). But that prior sentence is “not counted,” id. § 4A1.1
cmt. n.1, toward “[t]he total points” of the criminal history score,
id. § 4A1.1, if the “sentence [was] imposed more than fifteen years
prior to the defendant’s commencement of the instant offense,” the
prior “offense [was] committed prior to the defendant’s eighteenth
birthday,” or the “sentence [was] for a foreign conviction, a
conviction that ha[s] been expunged, or an invalid conviction,” id.
§ 4A1.1 cmt. n.1.
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3. The Ordinary Meaning of “And” Does Not Produce
an Absurd Result.
The government next relies on the absurdity doctrine. The
doctrine permits a court to “depart from the literal meaning of an
unambiguous statute . . . where a rational Congress could not
conceivably have intended the literal meaning to apply.” Vachon
v. Travelers Home & Marine Ins. Co., 20 F.4th 1343, 1350 (11th
Cir. 2021) (Pryor, C.J., concurring) (alteration adopted) (citation
and internal quotation marks omitted). Because “[c]ourts should
not be in the business of rewriting legislation, . . . we apply the
absurdity doctrine only under rare and exceptional circumstances.”
Id. (internal quotation marks omitted). The government argues
that, because only “the rare defendant” would fail all three
subsections in section 3553(f )(1), our interpretation “would expand
eligibility to defendants that Congress could not have plausibly
deemed worthy of relief.” We disagree.
This case is not the exceptional one in which the absurdity
doctrine permits us to rewrite the statute, as even our dissenting
colleagues acknowledge. See Branch Dissenting at 23–24. Congress
could rationally have “question[ed] the wisdom of mandatory
minimum sentencing,” which, “it is often said, fail[s] to account for
the unique circumstances of offenders who warrant a lesser
penalty.” See Harris v. United States, 536 U.S. 545, 568 (2002),
overruled on other grounds by Alleyne v. United States, 570 U.S.
99 (2013). And Congress could rationally have decided to allow
many defendants to be sentenced based on their “unique
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circumstances,” see id., while retaining mandatory minimums for
those defendants it perceived to be particularly unworthy of relief.
To that end, each portion of section 3553(f )(1) targets a different
type of behavior suggestive of future dangerousness. Under the
guidelines, a prior sentence can have up to three points associated
with it. See U.S.S.G. § 4A1.1. So the requirement in subsection
(A)—that a defendant not have “more than 4 criminal history
points”—targets serious recidivists, that is, defendants with more
than one prior sentence excluding minor one-point offenses. See 18
U.S.C. § 3553(f )(1)(A). The requirement in subsection (B)—that a
defendant not have a 3-point offense—targets defendants who have
committed those serious crimes that received long sentences of
imprisonment. See id. § 3553(f )(1)(B). And the requirement in
subsection (C) targets defendants with a history of violence even
though they received shorter sentences. See id. § 3553(f )(1)(C).
Taken together, the conditions in section 3553(f )(1) are rationally
aimed at ensuring that the most dangerous offenders—violent
recidivists with a history of committing serious crimes—remain
ineligible for safety-valve relief.
The rationality of section 3553(f )(1) is even clearer—and the
absurdity argument even weaker—when the section is considered
as part of the larger statutory scheme. A criminal defendant’s
ability to satisfy section 3553(f )(1) does not guarantee that the
defendant will satisfy the four other subsections necessary to
qualify for safety-valve relief. See id. § 3553(f )(2)–(5). To the
contrary, those subsections will often disqualify defendants the
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government considers unworthy of relief. For example, the
government expresses concern that certain violent offenders may
remain eligible for relief, but the statute disqualifies a defendant if
he “use[s] violence or credible threats of violence . . . in connection
with the offense,” or if the offense “result[s] in death or serious
bodily injury to any person.” Id. § 3553(f )(2)–(3). Moreover, it does
not follow from the availability of safety-valve relief that a
defendant will always receive a sentence that is meaningfully
different from the mandatory minimum. A defendant who is
eligible for safety-valve relief must be sentenced “pursuant to [the
sentencing] guidelines,” id. § 3553(f ), and the guidelines treat a
defendant’s criminal history as an aggravating factor warranting a
longer sentence, see, e.g., U.S.S.G. §§ 4A1.1, 4B1.1, 4B1.3–4. As our
dissenting colleague explains, a judge who has discretion to impose
a shorter sentence, based on the safety-valve provision, may
reasonably choose not to exercise that discretion if consideration
of the defendant’s history counsels against it. Brasher Dissenting at
3–4.
Because section 3553(f )(1) is rational, we have no power to
rewrite the statute to accommodate the government’s policy
concerns about the number of defendants eligible for relief, see
Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021), and the
government gets no further by ascribing those concerns to
Congress. The First Step Act was enacted to decrease the number
of criminal defendants subject to mandatory minimum sentences.
See 18 U.S.C. § 3553(f )(1) (2012) (pre-First Step Act provision
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disqualifying a defendant from safety-valve relief if he had “more
than 1 criminal history point”). That Congress might not have
anticipated how broadly its reforms would sweep does not make
those reforms absurd. See Vachon, 20 F.4th at 1351 (Pryor, C.J.,
concurring) (“[T]he absurdity doctrine does not give us license to
fix substantive errors arising from a drafter’s failure to appreciate
the effect of certain provisions . . . .” (internal quotation marks
omitted)).
The government also mentions the possibility that a
conjunctive reading of “and” would disqualify some defendants
while “allow[ing] more serious offenders to obtain relief.” And our
concurring colleague offers a specific hypothetical example about
an offender who has several violent three-point offenses but no
violent two-point offenses. Rosenbaum Concurring at 3. Notably,
one of our sister circuits, which shares our view of the conjunctive
reading, has rejected our concurring colleague’s reading. See
Lopez, 998 F.3d at 440 n.10 (rejecting this interpretation as
“nonsensical” because the section 3553(f )(1)(c) requirement for a
two-point violent offense can be fulfilled by a three-point offense).
But we need not—and do not—decide specific applications of the
statute to offenders who are not before us.
Neither the government’s interpretation nor our concurring
colleague’s specific example would make the ordinary meaning of
the statute absurd. “Congress often legislates at the macro level,
not on a micro scale.” CBS Inc. v. PrimeTime 24 Joint Venture, 245
F.3d 1217, 1229 (11th Cir. 2001). One consequence of this approach
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is that legislation sometimes “sweep[s] too broadly” by “affording
protection and relief to some who are not truly deserving or
aggrieved,” even as it sweeps “too narrowly” by “failing to reach
some who are more deserving or aggrieved.” Id. Because this
“[i]mperfection” stems from the “nature of [the] political process,”
id., we consider the rationality of the overall statutory scheme and
not whether “a particular application of the [scheme] may lead to
an arguably anomalous result,” see Silva-Hernandez v. U.S. Bureau
of Citizenship & Immigr. Servs., 701 F.3d 356, 364 (11th Cir. 2012).
And because, as we have explained, a rational Congress could
conceivably have intended to disqualify only those defendants who
satisfy every condition in section 3553(f )(1), the perceived
inequities of particular applications do not rise to the level of an
absurdity.
4. The Legislative History Is Irrelevant.
The government argues that the legislative history supports
its interpretation, but we agree with its alternative argument that
“[t]here is no need to consult [that] history.” Assuming legislative
history plays a role in modern statutory interpretation, see
Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969 (11th Cir.
2016) (en banc), that role is limited to “shed[ding] . . . light on the
enacting Legislature’s understanding of otherwise ambiguous
terms,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005). Because the meaning of “and” in section 3553(f )(1) is
unambiguous, legislative history has no role to play here. And even
if there were ambiguity, “the need for fair warning” for an accused,
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Crandon v. United States, 494 U.S. 152, 160 (1990), “preclude[s] our
resolution of the ambiguity against [Garcon] on the basis of . . .
legislative history,” see Hughey v. United States, 495 U.S. 411, 422
(1990).
5. The Rule of Lenity Counsels Against the Government’s
Interpretation.
If any “grievous ambiguity” remained, the rule of lenity
would resolve it. See Barber v. Thomas, 560 U.S. 474, 488 (2010)
(internal quotation marks omitted). “The rule of lenity is a canon
of statutory construction that requires courts to construe
ambiguous criminal statutes narrowly in favor of the accused.”
United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010) (Pryor,
J., concurring). The rule applies “not only to interpretations of the
substantive ambit of criminal prohibitions, but also to the penalties
they impose.” Id. at 717 (quoting Bifulco v. United States, 447 U.S.
381, 387 (1980)). Our dissenting colleagues dismiss the rule of lenity
by maintaining that their interpretation resolves any ambiguity.
Branch Dissenting at 27–28. But our dissenting colleagues resolve
this ambiguity only by ignoring the canons that point in a different
direction. See SCALIA & GARNER, supra, § 3, at 59 (“Principles of
interpretation are guides to solving the puzzle of textual meaning,
and as in any good mystery, different clues often point in different
directions.”). Even if our dissenting colleagues and the government
were correct that our interpretation rendered part of section
3553(f )(1) superfluous, we would be faced with an ambiguous
statute: ordinary meaning, the presumption of consistent usage,
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and the Senate drafting manual would point toward one
interpretation, and the presumption against superfluity would
point toward another. In that circumstance, the rule of lenity
would require us to give the word “and” “its ordinary, accepted
meaning,” see Burrage v. United States, 571 U.S. 204, 216 (2014),
and treat the word as conjunctive.
IV. CONCLUSION
We AFFIRM Garcon’s sentence.
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ROSENBAUM, Circuit Judge, Concurring:
From my seat, the shootout at the Eleventh Circuit Corral
between the well-reasoned Majority and Dissenting Opinions here
produces no indisputable winner after the smoke clears. For me,
the problem is that the traditional tools of statutory interpretation
fail to produce one interpretation of 18 U.S.C. § 3553(f)(1) that is
“the best interpretation,” Shular v. United States, 140 S. Ct. 779,
788 (2020), (Kavanaugh, J., concurring) (citation omitted). Rather,
even after we exhaust all the ammunition in our statutory-
interpretation belts, a “grievous ambiguity” remains as to whether
a defendant still qualifies for safety-valve relief under 18 U.S.C. §
3353(f)(1) if he satisfies fewer than all three factors that that
provision outlines. See Muscarello v. United States, 524 U.S. 125,
138–39 (1998).
So I would apply the rule of lenity to settle that “grievous
ambiguity.” 1 And as the Majority Opinion explains, applying that
rule begets the conclusion that a defendant qualifies for safety-
1 Still, I note that some say that application of the rule of lenity requires only
that, after resort to all the traditional tools of interpretation, “a reasonable
doubt persists” about the statute’s intended meaning. See United States v.
McNab, 331 F.3d 1228, 1239 n.21 (11th Cir. 2003) (quoting Moskal v. United
States, 498 U.S. 103, 108 (1990)); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 299 (2012) (favoring this
formulation, even though it is “more defendant-friendly than most”
formulations, for “when the government means to punish, its commands
must be reasonable clear.”).
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19-14650 ROSENBAUM, J., Concurring 2
valve relief as long as he does not satisfy all three of the factors 18
U.S.C. § 3353(f)(1) identifies.
That said, the Dissent’s common-sense interpretation of §
3553(f)(1), which reads the “and” as an “or,” has a lot of appeal
because it converges with what appears to be the statute’s manifest
intent. Under the original version of § 3553(f)(1), a defendant
qualified for safety-valve relief only if he did “not have more than
1 criminal history point, as determined under the sentencing
guidelines.” Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796, 1985 (1994)
(current version at 18 U.S.C. § 3353(f)(1)). As the name and content
of that law indicate, and as then-President William Clinton
explained before signing the law, Congress was particularly
concerned when it enacted that statute about keeping “violent
criminals off the street.” Remarks on Signing the Violent Crime
Control and Law Enforcement Act of 1994, 2 Pub. Papers. 1539,
1540 (Sept. 13, 1994). So the safety valve provided an escape from
mandatory minimum sentences for only those with the most
minimal criminal histories.
The First Step Act then loosened up safety-valve eligibility a
bit, authorizing relief from a mandatory minimum sentence for a
defendant who, among other qualifications, “does not have” “more
than 4 criminal history points,” “a prior 3-point offense,” “and” “a
prior 2-point violent offense.” First Step Act of 2018, Pub. L. No.
115-391, § 402(a)(1), 132 Stat. 5194, 5221 (2018) (amending 18
U.S.C. § 3553(f)(1)). Though the Act expanded eligibility,
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Congress’s decision to make “a prior 2-point violent offense” either
partially or wholly disqualifying (depending on whether the
Majority Opinion or the Dissent is right) evinces Congress’s
continued concern about authorizing safety-valve relief for anyone
previously convicted of a truly violent crime. After all, a two-point
offense is one for which a defendant was previously sentenced to
imprisonment for a comparatively shorter sentence—for as few as
two months. See U.S.S.G. § 4A1.1(b) (defining a two-point offense
as one for which a sentence lasting between two and thirteen
months was imposed).
So from a common-sense standpoint driven by the purpose
and statutory context of § 3553(f)(1), the Majority Opinion’s
construction of that provision is entirely counterintuitive. To
illustrate just how counterintuitive that construction is, imagine
two hypothetical defendants. The first has seven violent three-
point offenses (prior convictions for which a sentence of at least
thirteen months was imposed, see U.S.S.G. §§ 4A1.1(a)), and has
spent years in prison for those violent crimes. Although this first
defendant’s total criminal history tallies twenty-one points—all
incurred for committing violent crimes—he has no prior two-point
violent convictions. And for that reason, he qualifies for the safety
valve under the Majority Opinion’s interpretation of § 3553(f)(1).
The second defendant, meanwhile, has just a single two-point
violent conviction (which landed him in jail for only two months)
and one three-point nonviolent conviction for a total of five points.
Yet because that second defendant satisfies all three § 3353(f)(1)
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factors, he does not qualify for safety-valve relief under the
Majority Opinion’s interpretation of that provision. If the second
defendant’s single two-point violent offense is enough to knock
him out of contention for the safety valve, it is hard to see why
Congress, in trying to restrict safety-valve access to nonviolent
offenders, would have intended for the first defendant, with years
in jail on 21 points’ worth of violent offenses, to qualify for it.
Dismissing this contradiction, the Majority Opinion
suggests that § 3553(f)(1)’s “requirement for a two-point violent
offense can be fulfilled by a three-point offense.” See Maj. Op. at
21 (citing United States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021)).
But an analysis that lives by the text must also die by it. And
the Majority Opinion’s suggestion that we can read § 3553(f)(1)’s
reference to a “2-point violent offense, as determined under the
sentencing guidelines” to mean a “2-point or more violent offense,
as determined under the sentencing guidelines” would require us
to add text that doesn’t exist. Indeed, the definition of “2-point
offense” under the sentencing guidelines is mutually exclusive of
the definition of “3-point offense.” 2 And as the Majority Opinion
2Under the Sentencing Guidelines, a “2-point offense” is an offense for which
the defendant was sentenced to “imprisonment of at least sixty days not
counted in [U.S.S.G. § 4A1.1](a).” Subsection 4A1.1(a), in turn, provides that
a prior conviction scores three points if the defendant was sentenced to
“imprisonment exceeding one year and one month.” U.S.S.G. s 4A1.1(a). So
a “2-point offense” is necessarily one where the defendant was sentenced to
between 60 days and one year and one day shy of one month in prison, while
a “3-point offense” is one where the defendant was sentenced to at least one
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correctly notes, when we engage in a textual analysis, we can’t just
add words that Congress did not write. See Maj. Op. at 12 (citing
Korman v. HBC Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999)).
Even the Majority Opinion appears to recognize the weakness in
its suggestion, since it expressly declines to adopt the reading it
suggests. See Maj. Op. at 21 (excusing its decision not to adopt this
reading of the text because “[w]e need not—and do not—decide
specific applications of the statute to offenders who are not before
us”).
To summarize, then, the upshot of the Majority Opinion’s
construction of § 3553(f)(1) is this: the first defendant, who served
years in prison for violent crimes, qualifies for safety-valve relief,
while the second defendant, who served only two months in prison
for one violent crime, does not. Why? According to the Majority
Opinion, the answer is that the first defendant never committed a
two-point violent offense while the second defendant did. Yet the
first defendant served years in prison for his violent offenses, while
the second defendant served only two months in prison for a single
violent offense. That just seems wrong—especially because we
know Congress was concerned about the problem of repeat violent
offenders when it enacted and amended § 3553(f)(1).
Besides the dissonance of that result, I am also unpersuaded
by the Majority Opinion’s explanation for why its reading of §
year and one month in prison. And a “3-point offense,” by definition, cannot
qualify as a “2-point offense” under the Sentencing Guidelines.
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3553(f)(1) does not render the four-point criminal-history
disqualification criterion surplusage. See Maj. Op. at 14–17
(reasoning that a defendant with prior two-point and three-point
offenses does not qualify for safety-valve relief when those
convictions occurred more than ten or fifteen years ago, at which
point the Sentencing Guidelines instruct courts to exclude those
offenses from the defendant’s total criminal-history score). It
seems odd to require courts to include points from prior
convictions in assessing a defendant’s eligibility for safety-valve
relief when the Sentencing Guidelines expressly instruct us to
exclude those same points in determining the Sentencing
Guidelines range—a fact that Congress knew, as Congress must at
least implicitly approve the Sentencing Guidelines. See 28 U.S.C. §
994(p).
Still, though, the Supreme Court has cautioned us that “[t]he
canon against surplusage is not an absolute rule.” Marx v. Gen.
Revenue Corp., 568 U.S. 371, 385 (2013). And though I personally
don’t find the Majority Opinion’s surplusage explanation satisfying,
I also can’t say it’s wrong beyond question.
Plus, the Majority Opinion is, of course, correct when it
emphasizes that “and” is a conjunctive word. Not only does the
statute use the word “and” to connect all three disqualifying factors
under § 3553(f)(1), but it also uses “and” as a conjunctive word
elsewhere in § 3553(f). And that further suggests that “and” means
“and” in § 3553(f)(1). There is also no doubt that Congress
employed the disjunctive “or” elsewhere in § 3553(f), which
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similarly suggests that Congress would have used “or” in §
3553(f)(1) if that’s what it intended.
Each of these dueling interpretive canons and considerations
seems to apply more strongly than the last in the context of
analyzing § 3553(f)(1). At the end of the day, I am concerned that
our decision today is based on “no more than a guess as to what
Congress intended.” Ocasio v. United States, 578 U.S. 282, 296 n.8
(2016) (quoting Muscarello, 524 U.S. at 138–39) (explaining the
circumstances that trigger application of the rule of lenity). In my
view, § 3553(f)(1) is just “grievously ambiguous.”
With that in mind, I also have two concerns with following
the Dissent’s construction. First, given the plain language of §
3553(f)(1), I don’t think the statute clearly notifies defendants that
satisfying only one or two of the three factors under § 3553(f)(1)
will disqualify them from eligibility for safety-valve relief. And
second, I don’t think we can rule out the possibility that Congress
intended to use “and,” even though that seems unlikely to me. For
these reasons, I am concerned that the Dissent’s construction,
which replaces “and” with “or,” is unfaithful to the statutory
language and therefore violates the separation of powers.
Not for nothing, but those are precisely the two concerns
the rule of lenity addresses. See United States v. Phifer, 909 F.3d
372, 383 (11th Cir. 2018) (citing United States v. Bass, 404 U.S. 336,
347 (1971)). As the Supreme Court has observed, the rule of lenity
is just about as old as “the task of statutory ‘construction itself.’”
United States v. Davis, 139 S. Ct. 2319, 2333 (2019) (quoting United
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States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall,
C.J.)). Indeed, the rule of lenity reflects the law’s “tenderness” for
“the rights of individuals” to receive “fair notice of the law” and
“on the plain principle that the power of punishment is vested in
the legislative, not in the judicial department.’” Id.
Though the cases where the rule of lenity applies are few
and far between—after all, it is a rule of last resort that applies only
after exhausting the canons of statutory construction still leaves us
with a “grievously ambiguous” statute—§ 3553(f)(1) is one of the
rare statutes that require the rule’s application. And when we
apply the rule of lenity here, we must conclude that a defendant is
ineligible for safety-valve relief under § 3553(f)(1) only if his
criminal history satisfies all three of the requirements the statute
sets forth as disqualifying. For that reason, I concur in the
judgment of the Majority Opinion.
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NEWSOM, Circuit Judge, joined by LAGOA, Circuit Judge,
concurring:
I concur in the Court’s decision and join its opinion in full. I
write separately simply to articulate one more reason for rejecting
the government’s anti-surplusage argument—and to comment,
very briefly, on what I take to be the proper role of canons of
construction in the interpretive enterprise.
A lot of ink has been spilled over the anti-surplusage canon’s
relevance to the question before us. Today’s majority and the
Ninth Circuit have identified two different ways to eliminate the
purported surplusage in § 3553(f)(1). See Maj. Op. at 14–17; United
States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021). Today’s dissent,
adopting the government’s position and joining the Fifth, Seventh,
and Eighth Circuits, disagrees. See Dissenting Op. at 12–22; United
States v. Palomares, 52 F.4th 640, 640–45 (5th Cir. 2022); United
States v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022); United States v.
Pulsifer, 39 F.4th 1018, 1021–22 (8th Cir. 2022). Here’s the thing,
though: Even if the government and today’s dissenters had the
stronger position in the surplusage battle, they wouldn’t win the
interpretive war. The reason: The anti-surplusage canon gives us
no license to skirt unambiguous text, and no canon can make the
word “and” in § 3553(f)(1) mean “or.”
“In interpreting written law, our duty is to ‘determine the
ordinary public meaning’ of the provision at issue.” Heyman v.
Cooper, 31 F.4th 1315, 1319 (11th Cir. 2022) (quoting Bostock v.
Clayton County, 140 S. Ct. 1731, 1738 (2020)). To be sure, “[t]he
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19-14650 NEWSOM, J., Concurring 2
canons of construction often ‘play a prominent role’ in that
endeavor, serving as ‘useful tools’ to discern that ordinary
meaning.” Id. (quoting Facebook, Inc. v. Duguid, 141 S. Ct. 1163,
1173 (2021) (Alito, J., concurring)). I consult the canons routinely
in statutory, regulatory, and contract cases—we all do. But the
canons “are not ‘rules’ of interpretation in any strict sense.”
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 51 (2012). Rather, they are simply
“presumptions about what an intelligently produced text conveys.”
Id. Accordingly, in carrying out our basic task—discerning a
written provision’s ordinary meaning—“we shouldn’t treat the
canons ‘like rigid rules,’” and we should be alert to over- or
misusing them. Heyman, 31 F.4th at 1319 (quoting Duguid, 141 S.
Ct. at 1175 (Alito, J., concurring)). For it bears repeating that our
“obligation is to the text and not the canons per se.” Id. at 1321–
22; see also United States v. Monsanto, 491 U.S. 600, 611 (1989)
(“[I]nterpretative canons are not a license for the judiciary to
rewrite language enacted by the legislature.” (cleaned up)).
The government’s anti-surplusage argument here—which,
I’ll admit, is not without some force—violates this cardinal
command. It would have us mechanically apply the anti-
surplusage canon at the expense of § 3553(f)(1)’s plain text. But
doing so exacts too great a cost. After all, “the usual ‘preference’
for ‘avoiding surplusage constructions is not absolute,’” and
“‘applying the rule against surplusage is, absent other indications,
inappropriate’ when it would make an otherwise unambiguous
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statute ambiguous.” Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1301
(11th Cir. 2018) (quoting Lamie v. United States Tr., 540 U.S. 526,
536 (2004)). Thus, when we are “faced with a choice between a
plain-text reading that renders a word or clause superfluous and an
interpretation that gives every word independent meaning but, in
the doing, muddies up the statute,” we “‘should prefer the plain
meaning.’” Id. (quoting Lamie, 540 U.S. at 536). Only “that
approach respects the words of Congress” and our limited judicial
role. Lamie, 540 U.S. at 536.
Put simply, just as no amount of canon-based massaging
could make “white” mean “black” or “up” mean “down,” none can
make the word “and” mean “or.” Now, maybe Congress just made
a mistake—perhaps it meant to say “or” in § 3553(f)(1) instead of
“and.” But “[i]t is beyond our province to rescue Congress from its
drafting errors, and to provide for what we might think . . . is the
preferred result.” Id. at 542 (quotation omitted). If Congress
goofed, it should exercise its Article I authority to amend the
statute; Article III doesn’t empower us to do Congress’s job for it.
Were we to engage in interpretive gymnastics to make § 3553(f)(1)
say what it objectively, demonstrably, verifiably does not say—in
essence, to save Congress from itself—we would do the separation
of powers, and democracy itself, a profound disservice.
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JORDAN, J., Dissenting:
The criminal history criteria of the so-called “safety-valve”
provision allows a district court in certain narcotics cases to impose
a sentence without regard to an otherwise-applicable statutory
minimum if “the defendant 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[.]
18 U.S.C. § 3553(f)(1) (emphasis added). According to the
majority’s reading of § 3553(f)(1)(A)-(C), the “and” linking
subsections (f)(1)(A), (f)(1)(B), and (f)(1)(C) is conjunctive. A
defendant who has seven 3-point felony offenses (but no 2-point
violent offenses) is therefore eligible for “safety-valve” relief. So is
a defendant who has five violent 2-point offenses (but no 3-point
offenses).
I very much doubt that this is the state of affairs that
Congress envisioned when it revised the criminal history portion
of the “safety valve” provision in the First Step Act of 2018. I agree
with much of what Judge Branch has said, and join Parts I, II, III.A,
and III.B of her dissent. I write separately to explain that—
depending on the context—the word “and” can be read
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19-14650 JORDAN, J., Dissenting 2
disjunctively in legal texts, and to set out the views of the Senators
who proposed the exact provision that became § 3553(f)(1).
I
At the end of the day, the resolution of Mr. Garcon’s case
turns on the meaning of the word “and” in § 3553(f)(1)(A)-(C). I
therefore begin with how that word is understood.
Generally “and” is used as a conjunctive connector of words,
phrases, or clauses. See Am. Bankers Ins. Group v. United States,
408 F.3d 1328, 1332 (11th Cir. 2005); The American Heritage
Dictionary of the English Language 66 (5th ed. 2018). But here
“and” is being used in a statute, so its legal sense matters. See, e.g.,
Stansell v. Revolutionary Armed Forces of Colombia, 45 F. 4th
1340, 1353-54 (11th Cir. 2022) (choosing the legal understanding,
rather than the lay understanding, of a statutory term). And that is
where things start to get interesting.
By the mid-19th century, English courts had “already
allowed for and = or and or = and.” Webster’s Dictionary of
English Usage 94 (1989). The legal interchangeability between
“and” and “or” was similarly understood across the pond in
American law. The Supreme Court expressly recognized this
fluidity in United States v. Fisk, 70 U.S. 445, 447 (1865), and legal
dictionaries of the era did as well. See 1 Alexander M. Burill, A
New Law Dictionary and Glossary: Containing Full Definitions of
the Principal Terms of the Common and Civil Law 70 (1850)
(“AND, in written instruments, is frequently construed to mean or,
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19-14650 JORDAN, J., Dissenting 3
where reason and the intent of the parties requires it. . . . A similar
rule of construing the conjunctive participle in a disjunctive sense,
prevailed in the civil law. Sæpa ita comparatum est, ut conjuncta
pro disjunctis accipiantur.”); 1 Stewart Rapalje & Robert L.
Lawrence, A Dictionary of American and English Law, with
Definitions of the Technical Terms of the Canon and Civil Laws 58
(1888) (recognizing that “and” can be “construed to mean ‘or’” or
“read [as] ‘or’”); Arthur English, Dictionary of Words and Phrases
Used in Ancient and Modern Law 47 (1899) (“And. . . . Sometimes
construed to mean ‘or.’”); James John Lewis, Collegiate Law
Dictionary: A Dictionary of Technical Terms of the Law and of
Words and Phrases Which Have Been Judicially Defined 13 (1925)
(“[A]nd . . . In construing instruments and statutes, frequently
construed as meaning ‘or[.]’”); William E. Baldwin, Baldwin’s
Century Edition of Bouvier’s Law Dictionary 71 (1926) (“AND. In
order for the court to ascertain the intention of the legislature in
construction of statutes, they are often compelled to construe ‘or’
as meaning ‘and,’ and again ‘and’ as ‘or.’”).1
1 For other early 20th-century sources repeating the same theme, see 1 Judicial
and Statutory Definitions of Words and Phrases 386-394 (West. Pub. Co. 1904)
(“[the] strict meaning [of ‘and’ and ‘or’] is more readily departed from than
that of any other words, and one read in the place of the other in deference to
the meaning of the context,” so that “[‘and’] must be regarded as a convertible
term with ‘or,’ if the sense so requires, even in a criminal statute, where a strict
construction usually prevails”); 3 William M. McKinney & David S. Garland,
American & English Encyclopedia of Law and Practice 932 (1910) (essentially
the same).
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19-14650 JORDAN, J., Dissenting 4
We’ve said the same things several times. For example, in
Peacock v. Lubbock Compress Co., 252 F. 2d 892, 893 (5th Cir.
1958), we explained that “the word ‘and’ is not a word with a single
meaning, for chameleonlike, it takes its color from its
surroundings.” More recently, we noted that
“[e]very use of ‘and’ or ‘or’ as a conjunction involves
some risk of ambiguity.” As we have recognized in
our cases, “[i]t is an established princip[le] that ‘the
word “or” is frequently construed to “and,” and vice
versa, in order to carry out the evident intent of the
parties.’” In other words, “there is more to ‘and’ than
meets the eye.”
Shaw v. Nat’l Union Fire Ins. Co. of Pittsburgh, 605 F.3d 1250, 1253
(11th Cir. 2010) (citations omitted).
In sum, “[t]he simplest-looking words are often among the
most complicated, and ‘and’ is no exception.” R.W. Burchfield,
Fowler’s Modern English Usage 52 (Rev. 3d ed. 2004). As one legal
dictionary has put it: “‘And’ is a conjunction that has an inherent
ambiguity in its use . . . . [As an example,] ‘the clerk requires A, B,
and C,’ may mean that the clerk requires one of the three or that
the clerk requires all three at once.” 1 Bouvier Law Dictionary 148
(Desk ed. 2012). Accord De Sylva v. Ballentine, 351 U.S. 570, 573
(1956) (“We start with the proposition that the word ‘or’ is often
used as a careless substitute for the word ‘and’; that is, it is often
used in phrases where ‘and’ would express the thought with
greater clarity.”); Bryan A. Garner, Garner’s Dictionary of Legal
Usage 56 (3d ed. 2011) (“Sloppy drafting sometimes leads courts to
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19-14650 JORDAN, J., Dissenting 5
recognize that and in a given context means or, much to the
chagrin of some judges[.]”).2
II
The original “safety valve” provision, enacted by Congress
in 1994, allowed district courts to sentence certain narcotics
defendants without regard to an otherwise-applicable statutory
minimum if certain criteria were established. One of those criteria
was that the defendant did “not have more than 1 criminal history
point, as determined under the sentencing guidelines.” Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. 103-33,
Title VIII, § 80001, 108 Stat. 1796 (Sept. 13, 1994). “The intent, clear
from the face of the [provision], [wa]s to provide a ‘safety valve’ so
that less culpable offenders [we]re not subject to mandatory
minimums.” United States v. McFarlane, 81 F.3d 1013, 1014 (11th
Cir. 1996). For almost a quarter of a century, the criminal history
criteria of the “safety valve” provision remained unchanged.
A
In November of 2018, Senator Chuck Grassley—together
with 11 fellow Senators serving as original co-sponsors—
introduced a bill in the Senate that would, as relevant here, change
the criminal history criteria for “safety valve” relief. That bill, as
drafted, did not become law. But its proposed language for the
revised version of 18 U.S.C. § 3553(f)(1) remained unchanged when
2There are no entries for “and” in the 2019 edition of Black’s Law Dictionary
or in the 2016 edition of Merriam-Webster’s Dictionary of Law.
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19-14650 JORDAN, J., Dissenting 6
the First Step Act was passed a month later—subsections (f)(1)(A),
(f)(1)(B), and (f)(1)(C) were connected by the word “and.” See The
First Step Act, S. 3649, § 402(B) (“Broadening of Existing Safety
Valve”), 115th Cong., 2d Sess. (Nov. 15, 2018). 3
The Senate Committee on the Judiciary—through Senator
Grassley and his co-sponsors—published a summary of what S.
3649 was meant to do. With respect to the proposed amendment
of the criminal history criteria of the “safety valve” provision, they
explained that the broadened version would still limit relief to
defendants with little or no criminal history:
This section expands the existing safety valve to
include offenders with up to four criminal history
points, excluding 1-point offenses, such as minor
misdemeanors. However, offenders with prior “3
point” felony convictions (sentences exceeding one
year and one month) or prior “2 point” violent
offenses (violent offenses with sentences of at least 60
days) will not be eligible for the safety valve absent a
judicial finding that those prior offenses substantially
overstate the defendant’s criminal history and danger
of recidivism.
3 So that the reader can compare it with § 3553(f)(1), a copy of § 402 of S. 3649
is attached as an appendix.
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Senate Committee on the Judiciary, “The First Step Act of 2018 (S.
3649)—as introduced,” p. 2 (Nov. 15, 2018) (emphasis added). 4
So, according to the Senators who proposed the language
that ultimately became § 3553(f)(1) with no changes, a defendant
who had more than 4 criminal history points, or a 3-point offense,
or a 2-point violent offense would not be eligible for “safety valve”
treatment. In other words, the “and” in the new subsections
(f)(1)(A)-(C)—the word we are debating in this case—was meant to
be disjunctive, and not conjunctive. 5
“Legislative history is not the law, but [it] can help us
understand what the law means.” Robert A. Katzmann, Judging
Statutes 38 (2014). When a statutory term is unclear, certain types
of legislative materials—if probative of intent or purpose—can help
courts figure out the better (or more appropriate) reading of the
term. “Traditionally,” then, “the Supreme Court and other federal
courts have routinely considered statements by sponsors when
relevant to an issue of statutory interpretation.” William N.
Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes
and the Constitution 246 (2016). 6
4 A copy of the summary prepared by the Senate Committee on the Judiciary
is also attached as an appendix.
5 It is also telling that the Senators who introduced S. 3649 used the words
“conviction,” “offense,” and “sentence” interchangeably.
6 Although the Supreme Court may have recently turned away from
legislative materials in a number of cases, that course is “remarkable in light
of the close analogy to constitutional materials, where the . . . Court cites and
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19-14650 JORDAN, J., Dissenting 8
I do not suggest that the collective view of Senator Grassley
and his Senate co-sponsors is determinative as to the meaning of
“and.” But I do submit that it is relevant. See, e.g., Digit. Realty
Tr., Inc. v. Somers, 138 S. Ct. 767, 777-78 (2018) (considering
legislative materials concerning a statute’s purpose in determining
the meaning of a statutory term); Anderson v. Cagle’s, Inc., 488
F.3d 945, 958 (11th Cir. 2007) (considering a sponsor’s statement
about the purpose of a proposed statutory amendment).
After all, “[i]f a statute is to make sense, it must be read in
the light of some assumed purpose. A statute merely declaring a
rule, with no purpose or objective, is nonsense.” Karl N.
Llewellyn, Remarks on the Theory of Appellate Decision and the
Rules or Canons about How Statutes Are to Be Construed, 3 Vand.
L. Rev. 395, 400 (1950). Our job is to “ascertain the . . . intention
of [Congress],” and in “order to do this” we are sometimes
“compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’’ as
meaning ‘or.’” Fisk, 70 U.S. at 447.
B
“[C]ommon sense is not irrelevant in construing statutes.”
Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312 (11th Cir.
debates The Federalist Papers as though they were barnacles attached to the
Constitution.” Eskridge, Interpreting Law, at 247. And if the majority is able
to rely on sources like the Senate’s legislative drafting manual, I don’t see why
the collective view of those who drafted and proposed what became §
3553(f)(1) is taboo.
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19-14650 JORDAN, J., Dissenting 9
2013). Here a disjunctive reading of “and” in § 3553(f)(1) makes a
lot of sense.
As Judge Branch convincingly explains, if the word “and” is
read conjunctively—so that a defendant is disqualified from “safety
valve” relief only if he has more than 4 criminal history points
(subsection (f)(1)(A)), and a 3-point offense (subsection (f)(1)(B)),
and a 2-point violent offense (subsection (f)(1)(C))—then
subsection (f)(1)(A) is rendered superfluous. Why? Because a
defendant who has both a 3-point offense and a violent 2-point
offense—two of the three required criteria according to the
majority—necessarily has more than 4 criminal history points. No
matter what math one uses, 3 + 2 = 5, and subsection (f)(1)(A)
becomes meaningless. 7
We “are obliged to give effect, if possible, to every word
Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979),
and reading “and” disjunctively seems like a small linguistic price
to pay to avoid making subsection (f)(1)(A) superfluous. See 1A
Norman Singer, Sutherland on Statutory Construction § 21:14 (7th
ed. & Nov. 2020 update). Given the choices available, it is better
to read a word in its non-usual (but legally permissible) sense than
to render a statutory provision meaningless. As we have done
7 Things would be markedly different if, for example, subsection (f)(1)(A) said
“more than 6 criminal history points” because then a defendant with a single
3-point offense and a single 2-point violent offense would not have 6 criminal
history points. In that example, subsection (f)(1)(A) would still have
independent effect.
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before, I would resolve the case on that basis. See Peacock , 252
F.2d at 893 (construing the word “and” as “or” in order to prevent
a provision from being “read . . . out of the statute”).
III
As I read § 3553(f)(1)(A)-(C), Mr. Garcon was ineligible for
“safety valve” relief because he had a prior 3-point offense. With
respect, I dissent from the majority’s contrary conclusion.
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BRANCH, Circuit Judge, dissenting, in which GRANT and BRASHER,
Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II,
III.A, and III.B:
The safety-valve provision of the First Step Act permits a
sentencing court to disregard an otherwise applicable statutory
minimum sentence for qualifying defendants. See 18 U.S.C.
§ 3553(f). Subsection (f)(1), one of five enumerated subsections
that a defendant must meet to qualify for safety-valve relief,
provides that a court must find that a “defendant 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;
18 U.S.C. § 3553(f)(1) (emphasis added). The question we must
answer in this appeal is how to interpret the “and” in subsection
(f)(1)—a question that, as it turns out, is the subject of much debate
in several of our sister circuits.1
1
The Fifth, Seventh, Eighth, and Ninth Circuits have addressed this issue. See,
e.g., 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), petition for cert. filed, (U.S. Oct. 12, 2022) (No. 22-340); United
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19-14650 BRANCH, J., Dissenting 2
A circuit split now exists on this issue. On the one hand, the
Ninth Circuit has held that the “and” in § 3553(f )(1) is conjunctive
such that a defendant must possess all three criminal history criteria
to be disqualified. United States v. Lopez, 998 F.3d 431 (9th Cir.
2021). On the other hand, the Fifth, Eighth, and Seventh Circuits
have held that a defendant who possesses any one of the specified
criminal history criteria is disqualified, albeit by reaching this
conclusion in different ways. 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. See United
States v. Palomares, 52 F.4th 640, 643–45 (5th Cir. 2022); United
States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022); United States
v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022). Thus, the interpretive
question of first impression presented in our circuit is not as simple
as the Majority makes it out to be, and the Majority’s decision
today—which sides with the Ninth Circuit—only deepens the
circuit split.
I dissent because the Majority’s interpretation is contrary to
the structure and context of the statute. And it creates two
surplusage problems. First, it renders an entire subsection—
States v. Lopez, 998 F.3d 431 (9th Cir. 2021), petition for reh’g en banc
pending. Similar appeals remain pending in the Fourth, Sixth, and Tenth
Circuits. See, e.g., United States v. Jones, case no. 21-4605 (4th Cir.) (oral
argument pending); United States v. Haynes, case no. 22-5132 (6th Cir.) (oral
argument held Oct. 20, 2022); United States v. Kolkman, case no. 22-8004 (10th
Cir.) (oral argument held Nov. 17, 2022).
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19-14650 BRANCH, J., Dissenting 3
(f)(1)(A)—redundant. Second, it disregards Congress’s plain
instruction that all pertinent statutory determinations for purposes
of § 3553(f)(1) are to be made “as determined under the sentencing
guidelines.” Once context and structural cues are considered, the
best reading of § 3553(f)(1) is that it bars safety-valve relief for
defendants who have any one of the enumerated criminal history
characteristics in (A)–(C). Accordingly, I would hold that Garcon
is ineligible for safety-valve relief because he has a disqualifying 3-
point offense under § 3553(f)(1)(B).
I. Background
The facts surrounding Garcon’s underlying conviction are
not relevant to this appeal. Suffice it to say, Garcon pleaded guilty
to a drug offense which carried a statutory minimum sentence. In
an attempt to avoid the statutory minimum, Garcon sought refuge
in the safety-valve provision of § 3553(f), as amended by the First
Step Act of 2018, which instructs district courts to impose a
sentence pursuant to the Sentencing Guidelines without regard to
any applicable statutory minimum sentence if the court finds that
the defendant meets certain requirements.
As amended by the First Step Act of 2018, the safety-valve
provision provides:
Notwithstanding any other provision of law, in the
case of an offense under [various drug-related
statutes], the court shall impose a sentence pursuant
to guidelines promulgated by the United States
Sentencing Commission . . . without regard to any
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19-14650 BRANCH, J., Dissenting 4
statutory minimum sentence, if the court finds at
sentencing, after the Government has been afforded
the opportunity to make a recommendation, that—
(1) the defendant 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;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to
do so) in connection with the offense;
(3) the offense did not result in death or serious bodily
injury to any person;
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as
defined in section 408 of the Controlled Substances
Act; and
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(5) not later than the time of the sentencing hearing,
the defendant has truthfully provided to the
Government all information and evidence the
defendant has concerning the offense or offenses that
were part of the same course of conduct or of a
common scheme or plan, but the fact that the
defendant has no relevant or useful other information
to provide or that the Government is already aware
of the information shall not preclude a determination
by the court that the defendant has complied with this
requirement.
Information disclosed by a defendant under this
subsection may not be used to enhance the sentence
of the defendant unless the information relates to a
violent offense.
18 U.S.C. § 3553(f) (2018). 2 The first safety-valve requirement,
§ 3553(f)(1), is the one at issue.
In the district court proceedings below, Garcon argued that
the “and” in subsection (f)(1)(B) was conjunctive, meaning that a
defendant is eligible for safety-valve relief so long as he does not
have all three specified criminal history characteristics in
§ 3553(f)(1)(A)–(C). The government, on the other hand, argued
that if a defendant has any one of the three criminal history
2
Prior to the First Step Act amendment, § 3553(f)(1) disqualified any defendant
from safety-valve relief who had “more than 1 criminal history point, as
determined under the sentencing guidelines.” See 18 U.S.C. § 3553(f)(1)
(2016).
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19-14650 BRANCH, J., Dissenting 6
characteristics in § 3553(f)(1)(A)–(C), then he is ineligible for safety-
valve relief. The district court determined that § 3553(f)(1) was
unambiguous, and “[t]he plain meaning of the statute require[d] all
three subsections . . . to be met before the defendant becomes
ineligible for safety valve [relief].” The district court noted that its
reading “create[d] an absurd result,” but that it was bound to apply
the plain language of the statute.
The government appealed, arguing that, when examined in
the broader context of the statute as whole, the only reasonable
interpretation was that the “and” in § 3553(f)(1) operated
disjunctively. A unanimous panel of this Court held that the plain
text of the statute was clear because context and the canon against
surplusage dictated that the “and” in § 3553(f)(1) did not bear its
ordinary conjunctive meaning. United States v. Garcon, 997 F.3d
1301, 1304–06 (11th Cir. 2021), vacated, 23 F.4th 1334 (11th Cir.
2022). Rather, textual and structural indicators revealed that the
“and” is disjunctive. Id. at 1305–06. Garcon petitioned for
rehearing en banc. This Court voted to grant rehearing en banc,
vacated the panel opinion, and directed the parties to brief one
question: “Did the district court err in concluding that defendant
Julian Garcon met the safety-valve-eligibility requirement set forth
at 18 U.S.C. § 3553(f)(1).” United States v. Garcon, 23 F.4th 1334
(11th Cir. 2022).
Before the en banc court, the government argued that the
“and” is conjunctive but distributive and that the preceding “does
not have” qualifier in § 3553(f)(1) independently applied to each of
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the disqualifying criminal history characteristics listed in (A)–(C).
Alternatively, the government maintained that the prior panel
correctly determined that the “and” in § 3553(f)(1) is disjunctive.
Under either scenario, the result is the same—if a defendant
possesses any one of the specified criminal history characteristics,
then he is ineligible for safety-valve relief.
The Majority now holds that the “and” in § 3553(f)(1) is
conjunctive, reasoning that the conjunctive meaning is compelled
by the plain text of the statute under the ordinary meaning canon
of statutory construction and the canon of consistent usage. Under
the Majority’s holding, defendants like Garcon, who possess one or
two of the disqualifying criminal history characteristics in
§ 3553(f)(1) are eligible for safety-valve relief—i.e., to be sentenced
below an otherwise applicable statutory minimum—as long as the
defendant does not have all three criminal history characteristics.
In other words, the Majority’s interpretation requires that in all
cases a district court impose a sentence consistent with the
Sentencing Guidelines, without regard to any statutory minimum
sentence, if the district court finds that “the defendant does not
have” “as determined under the sentencing guidelines” more than
4 criminal history points, excluding 1-point offenses, AND a prior
3-point offense, AND a prior 2-point violent offense.
But giving “and” in § 3553(f)(1) a conjunctive meaning as the
Majority does violates the text of the statute and renders an entire
subsection superfluous. Accordingly, I would hold that,
considering the context and structure of the statute, the best
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19-14650 BRANCH, J., Dissenting 8
reading of § 3553(f)(1) is that a defendant is ineligible for safety-
valve relief if he has any one of the three disqualifying criminal
history characteristics set forth in § 3353(f)(1)’s safety-valve
eligibility checklist. Thus, Garcon would be ineligible for safety-
valve relief because he has a disqualifying 3-point offense under
§ 3553(f)(1)(B). Consequently, I respectfully dissent because the
Majority’s interpretation is contrary to the text of the statute when
considered in context and violates the canon against surplusage.
My dissent proceeds in four parts. First, I start where all
issues of statutory interpretation must—with the text of the
statute, guided by the interpretive canons of statutory
construction. Second, I explain how the Majority’s conjunctive
interpretation renders a portion of the statute superfluous. Third,
I explain other problems presented by the Majority’s
interpretation. Lastly, I explain why the rule of lenity does not
apply.
II. Standard of Review
Issues of statutory interpretation are reviewed de novo.
United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir.
2012). In conducting statutory interpretation, “we do not look at
one word or term in isolation but rather look to the entire statute
and its context.” Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir.
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2010); In re Walter Energy, Inc., 911 F.3d 1121, 1143 (11th Cir.
2018) (same).
III. Discussion
A. Context demonstrates that the “and” in
subsection (1) of the safety-valve statute is
disjunctive
In determining the meaning of the safety-valve requirement
in § 3553(f)(1), our “starting point . . . is the language of the statute
itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980); see also United States v. DBB, Inc., 180 F.3d
1277, 1281 (11th Cir. 1999) (“The starting point for all statutory
interpretation is the language of the statute itself.”).
In this case, we must interpret how the word “and” operates
in the eligibility checklist in 18 U.S.C. § 3553(f)(1). “[O]ur authority
to interpret statutory language is constrained by the plain meaning
of the statutory language in the context of the entire statute, as
assisted by the canons of statutory construction.” Edison, 604 F.3d
at 1310.
Pursuant to the ordinary-meaning canon—the “most
fundamental semantic rule of interpretation”—words are
presumed to bear “their ordinary, everyday meanings.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 69 (2012). The Majority is certainly correct that “and”
is ordinarily defined as “along with or together with”—carrying
with it a conjunctive meaning. See And, Webster’s Third New Int’l
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19-14650 BRANCH, J., Dissenting 10
Dictionary (2005). Thus, the word “and” is presumed to bear its
ordinary conjunctive meaning. See Am. Bankers Ins. Grp. v.
United States, 408 F.3d 1328, 1332 (11th Cir. 2005). But the
conjunctive presumption given the term “and” by the ordinary-
meaning canon is rebuttable. Although words are presumed to
bear their ordinary meaning, context can dictate otherwise. Scalia
& Garner, supra, at 70; see also Am. Bankers Ins., 408 F.3d at 1332
(explaining that “the word ‘and’ is presumed to be used in its
ordinary sense, that is, conjunctively,” “unless the context dictates
otherwise”). Accordingly, rather than viewing the term “and” in
isolation, we must “look to the entire statutory context,” DBB, Inc.,
180 F.3d at 1281, and we must “give effect, if possible, to every
word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979). Indeed, statutory interpretation “is a holistic endeavor. A
provision that may seem ambiguous in isolation is often clarified
by the remainder of the statutory scheme . . . .” United Sav. Ass’n
of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371
(1988). Once context and structural cues are considered, the best
reading of the “and” in § 3553(f)(1) is that it operates disjunctively.
It is well established that “there is more to ‘and’ than meets
the eye.” Shaw v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 605
F.3d 1250, 1253 (11th Cir. 2010) (quoting OfficeMax, Inc. v. United
States, 428 F.3d 583, 588 (6th Cir. 2005)). For “the word ‘and’ is not
a word with a single meaning”; like a “chameleon[], it takes its
color from its surroundings.” Peacock v. Lubbock Compress Co.,
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19-14650 BRANCH, J., Dissenting 11
252 F.2d 892, 893 (5th Cir. 1958). 3 As a result,“[c]ourts are often
compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as
meaning ‘or.’”4 Id. (quoting United States v. Fisk, 70 U.S. 445, 447
3
Decisions issued by the former Fifth Circuit before October 1, 1981, are
binding precedent in our Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981) (en banc).
4
Judge Newsom’s concurrence implies that I am breaking new ground by
construing “and” to mean “or.” Newsom, J., Concurring Op. at 3 (“Put
simply, just as no amount of canon-based massaging could make ‘white’ mean
‘black’ or ‘up’ mean ‘down,’ none can make the word ‘and’ mean ‘or.’”). Not
so. Rather, as we noted in Peacock—like it or not—courts often face imperfect
drafting and, as a result, “are often compelled to construe ‘or’ as meaning
‘and,’ and again ‘and’ as meaning ‘or.’” Peacock, 252 F.2d at 893 (quoting
United States v. Fisk, 70 U.S. 445, 447 (1865)); see, e.g., Confederated Tribes
& Bands of Yakama Nation v. Yakima Cnty., 963 F.3d 982, 990 (9th Cir. 2020)
(“[J]ust because the ordinary meaning of ‘and’ is typically conjunctive does not
mean ‘and’ cannot take on other meaning in context. Indeed, ‘and’ can also
mean ‘or’ in some circumstances.” (internal citation omitted)); OfficeMax, Inc.
v. United States, 428 F.3d 583, 588 (6th Cir. 2005) (explaining that in the tax
code, “Congress used ‘and’ in more than one sense . . . giving it a conjunctive
meaning (requiring all items) in some places and giving it a disjunctive or
cumulative meaning (allowing any of the items) in other places”); United
States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (holding that “or” in 21 U.S.C.
§ 802(32) is conjunctive); United States v. Gomez-Hernandez, 300 F.3d 974,
978–79 (8th Cir. 2002) (holding that the “and” in the “crime of violence”
definition in U.S.S.G. § 2L1.2(b)(1)(A) is disjunctive), abrogated on other
grounds by, Descamps v. United States, 570 U.S. 254 (2013); Bruce v. First Fed.
Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 714–17 (5th Cir. 1988)
(holding that the term “and” in 12 U.S.C. § 1464(q)(1) is disjunctive); see also
Bryan A. Garner, A Dictionary of Modern Legal Usage 55 (2d ed. 1995)
(“Oddly, and is frequently misused for or where a singular noun, or one of two
nouns, is called for. . . . Sloppy drafting sometimes leads courts to recognize
that and in a given context means or, much to the chagrin of some judges.”).
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19-14650 BRANCH, J., Dissenting 12
(1865)); see also e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct.
1134, 1141 (2018) (examining whether the word “or” in a statute
was disjunctive or conjunctive); Noell v. Am. Design, Inc., 764 F.2d
827, 833 (11th Cir. 1985) (“It is an established principle that the
word ‘or’ is frequently construed to mean ‘and,’ and vice versa, in
order to carry out the evident intent of the parties.” (quotation
omitted)). Thus, “every use of ‘and’ or ‘or’ as a conjunction
involves some risk of ambiguity.” Shaw, 605 F.3d at 1253
(quotation omitted). Accordingly, although the word “and” carries
a presumption that it bears a conjunctive meaning, that
presumption can be overcome by context.
When interpreting a statute—and certainly where, as here,
there is more than one reasonable interpretation of a statutory
term—we can look to the canons of statutory construction as a
guide. “The canons assist the Court in determining the meaning
of a particular statutory provision by focusing on the broader,
statutory context.” CBS Inc. v. PrimeTime 24 Joint Venture, 245
F.3d 1217, 1225 (11th Cir. 2001). Looking at the entire statutory
context and adhering to our obligation to give effect to every word,
if possible, that Congress used, there is a strong contextual basis for
reading the “and” in § 3553(f)(1) disjunctively. Quite simply, the
statutory context establishes that if the “and” is read conjunctively,
then subsection (A) is rendered superfluous. Specifically, for each
criminal history criterion in subsections (A), (B), and (C), Congress
included the language, “as determined under the sentencing
guidelines.” If a defendant has a prior 3-point offense “as
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19-14650 BRANCH, J., Dissenting 13
determined under the sentencing guidelines” under subsection (B),
and a prior 2-point violent offense “as determined under the
sentencing guidelines” under subsection (C), then it follows that he
necessarily has 5 criminal history points—i.e., more than 4 criminal
history points, excluding any 1-point offenses for purposes of
subsection (A) “as determined under the sentencing guidelines.”
Thus, if the “and” in § 3553(f)(1) is read conjunctively, then
subsection (A) has no independent operation and is superfluous.
On the other hand, reading “and” disjunctively avoids rendering
subsection (A) superfluous and gives every part of § 3553(f)(1)
meaning.
It is a well-established principle that interpretations that
cause a provision to have no consequence or to duplicate another
provision should be avoided. See Scalia & Garner, supra, at 174–
79. Accordingly, “[i]f a provision is susceptible of (1) a meaning
that gives it an effect already achieved by another provision, or that
deprives another provision of all independent effect, and
(2) another meaning that leaves both provisions with some
independent operation, the latter should be preferred.” Id. at 176;
see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (explaining
that construing a statute so as to avoid rendering any clause,
sentence, or word “superfluous, void, or insignificant” “is a cardinal
principle of statutory construction” (quotations omitted)). The
surplusage canon “is strongest when[, as here,] an interpretation
would render superfluous another part of the same statutory
scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013).
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Accordingly, I would hold that the “and” in § 3553f)(1) is
disjunctive. 5
Consequently, I agree with the Seventh Circuit that the
conjunctive interpretation advanced by Garcon and adopted by the
5
I note that the distributive approach advanced by the government and
endorsed by the Eighth and Fifth Circuits is an equally strong interpretation
given the context and structure of § 3553(f)(1), and it renders the same result
as the disjunctive reading. As we have recognized, when used as a
conjunctive, the word “and” “can be used either ‘jointly’ (e.g., “both A and B”)
or ‘severally’ (e.g., “A and B meaning A or B, or both”).” Shaw, 605 F.3d at
1254 (alterations adopted) (quotation omitted). Here, if the conjunctive “and”
is read in its distributive “several” sense—as the Eighth Circuit and Fifth
Circuit have held—then, as with a disjunctive reading of “and,” a defendant
similarly is ineligible for safety-valve relief if he has any one of the three
disqualifying criminal history characteristics in § 3553(f)(1). See Palomares,
52 F.4th at 643–45 (holding that the “and” in § 3553(f)(1) is distributive “such
that ‘does not have’ independently applies to each item in” § 3553(f)(1)(A)–
(C)); Pulsifer, 39 F.4th at 1021 (explaining that as applied to § 3553(f)(1), the
“‘distributive’ sense of the word [‘and’] would mean that the requirement that
a defendant ‘does not have’ certain elements of criminal history is distributed
across the three subsections, and a defendant is ineligible if he fails any one of
the three conditions.”).
As the Fifth Circuit explained in Palomares, § 3553(f) as a whole
“contains a list of affirmative requirements” that a defendant must satisfy to
be eligible for safety-valve relief. Palomares, 52 F.4th at 644. But the statute
“opens with a negative prefatory phrase coupled with an em-dash (‘does not
have—’) followed by a conjunctive list (A, B, and C).” Id. at 642. Thus, the
grammatical structure of § 3553(f) distributes the phrase “‘does not have’” to
“each item in the list (does not have (A), does not have (B), and does not have
(C)).” Id. at 643. I agree with the Fifth Circuit that this distributive
interpretation is a natural reading of the statute, and it avoids violating the
canon against surplusage.
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Majority “creates more problems than solutions and renders a
portion of the statute superfluous.” Pace, 48 F.4th at 754; see also
Palomares, 52 F.4th at 645(explaining that under a conjunctive
interpretation of “and” “[§] 3553(f)(1)(A) would be surplusage”).
The Majority adheres too rigidly to the ordinary-meaning and
consistent usage canons, 6 at the expense of the “cardinal principle
of statutory construction that a statute ought, upon the whole, to
be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.” TRW Inc., 534
U.S. at 31 (quotations omitted); see also Parker Drilling Mgmt.
Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (explaining that
it is a “cardinal principle of interpretation that courts must give
effect, if possible, to every clause and word of a statute” (quoting
Loughrin v. United States, 573 U.S. 351, 358 (2014))). It is true that
the canons of construction “are not mandatory rules.” Chickasaw
Nation v. United States, 534 U.S. 84, 94 (2001) (quotation omitted).
But here, it is possible to give effect to every word of a statute—
but only by adopting a disjunctive reading of “and.” As a result, we
should give the canon against surplusage particular weight.
6
Related to the ordinary-meaning canon is the canon of consistent usage,
which is the general principle that a term ordinarily bears the same meaning
each time it is used in a given statute. Scalia & Garner, supra, at 170–73.
Similar to the ordinary-meaning canon, “the presumption of consistent usage
readily yields to context.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)
(quotation omitted).
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19-14650 BRANCH, J., Dissenting 16
As for the consistent usage and ordinary-meaning canons,
“[s]pecific canons are often countered by some maxim pointing in
a different direction.” Id. (alteration adopted) (quotation omitted).
See also Scalia & Garner, supra, at 59. Such is the case here. 7
B. The Majority’s conjunctive interpretation
renders parts of the statute superfluous
As explained previously, reading “and” in a conjunctive
(non-distributive) sense as the Majority does renders subsection (A)
superfluous because a defendant who has a prior 3-point offense
under subsection (B) and a prior 2-point violent offense under
subsection (C) will necessarily have more than 4 criminal history
points for purposes of subsection (A). No one disputes that 3+2=5.
7
The Majority contends that its conjunctive interpretation is “buttressed” by
section 302(a) of the Senate’s Legislative Drafting Manual because it directs
that “and” should be used “to indicate that a thing is included in the class only
if it meets all of the criteria.” Office of Legislative Counsel, U.S. Senate, Legis.
Drafting Manual § 302(a) (1997). See https://law.yale.edu/sites/default/
files/documents/pdf/Faculty/SenateOfficeoftheLegislativeCounsel_Legislat
iveDraftingManual%281997%29.pdf. I am skeptical as a general matter of the
value of the legislative drafting manual as an interpretative aid—it is
infrequently and rarely relied upon by courts (by my count it has been cited in
only 15 published opinions in the Supreme Court and across the circuits).
Further, it is clear that Congress does not strictly abide by its provisions.
Indeed, the Majority ignores that subsection (c) of section 302 also provides
that “[i]n a statement in the negative, ‘or’ is almost always the correct
word . . . .” Id. § 302(c). Section 3553(f)(1) is just such a statement in the
negative, yet Congress used “and,” thereby contradicting the express guidance
of the drafting manual. Given that Congress does not adhere to the guidance
of the drafting manual, its value as an interpretive aid is negligible at best.
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Rather, Garcon and the Majority attempt to avoid the superfluity
problem with subsection (A) by proffering the misguided
explanation that “prior offenses” which do not score criminal
history points for purposes of subsection (A) should nonetheless be
scored and considered 3-point offenses or 2-point violent offenses
for purposes of § 3553(f)(1)(B) and (C). 8 Under this sometimes-we-
count-sometimes-we-don’t theory, a prior offense could be
“worth” criminal history points for purposes of § 3553(f)(1)(B) and
(C) but actually add no points to the defendant’s criminal history
score for purposes of § 3553(f)(1)(A) due to either the age of the
offense or the single-sentence rule.9 I disagree for several reasons.
8
I note that the unanimous panel in the Eighth Circuit squarely rejected this
approach. See Pulsifer, 39 F.4th at 1020. And it was not endorsed by the
majorities in either Pace or Palomares—however, the dissenting judges in
both Pace and Palomares embrace the same theory that Garcon and the
Majority here advance. Pace, 48 F.4th at 763–64 (Wood, J., dissenting in part);
Palomares, 52 F.4th at 655–56 (Willett, J., dissenting).
9
Although the Ninth Circuit in Lopez held that the “and” in § 3553(f)(1) is
conjunctive and that there was no surplusage problem with subsection (A), it
did so for very different reasons than the Majority adopts here. 998 F.3d at
436–40, petition for reh’g en banc pending. A majority of the Ninth Circuit
held that a three-point offense under subsection (B) could simultaneously
satisfy subsection (C) if it was for a violent offense, leaving a defendant with
less than 4 criminal history points for purposes of (A)—meaning subsection A
was not superfluous. Id. at 440. Notably, neither Garcon nor the Majority
here pursued the Lopez line of reasoning in this case. And for good reason—
the problem with the Lopez majority’s reasoning, as noted by Judge M. Smith,
who concurred in part, dissented in part, and concurred in the judgment in
Lopez, is that the Lopez majority’s reasoning effectively “rewrites the plain
language of subsection (C) to read “a prior violent offense of at least 2 points.”
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First, this approach violates the plain text of the statute. As
discussed previously, for each criterion in subsections (A), (B), and
(C), Congress included the language, “as determined under the
sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(A)–(C). In other
words, Congress’s directive is clear—in determining whether “a
defendant does not have” (A) “more than 4 criminal history points,
excluding any criminal history points from 1-point offenses,” (B) “a
prior 3-point offense,” and (C) “a prior 2-point violent offense,”
courts should consult and follow the directives of the sentencing
guidelines when determining whether the defendant has the
disqualifying criminal history specified in § 3553(f)(1)(A)–(C). See
Gall v. United States, 552 U.S. 38, 50 n.6 (2007) (explaining in the
context of another subsection of § 3553 that “[t]he fact that
§ 3553(a) explicitly directs sentencing courts to consider the
Guidelines supports the premise that district courts must begin
their analysis with the Guidelines and remain cognizant of them
throughout the sentencing process”); Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253 (1992) (“[C]ourts must presume that a
legislature says in a statute what it means and means what it says
there.”); Palomares, 52 F.4th at 646 (explaining that Congress
“explicitly incorporated the Sentencing Guidelines by reference” in
Id. at 445 (M. Smith, J., concurring in part, dissenting in part, and concurring
in the judgment) (emphasis added); see also Palomares, 52 F.4th at 645–46
(holding that the Lopez majority’s reasoning “violates the plain wording of
§ 3553(f)(1)(C)” and disregards the “as determined under the sentencing
guidelines” language in the statute).
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§ 3553(f)(1)). The Majority’s inclusion of “prior offenses” that do
not score criminal history points for purpose of § 3553(f)(1)(B) and
(C) violates Congress’s plain directive.
Second, the Majority’s theory that subsection (A) of
§ 3553(f)(1) is not superfluous if “and” is read conjunctively is
premised on the idea that Congress introduced a new concept of
“prior offense” in § 3553(f)(1) because the sentencing guidelines are
framed around “prior sentences,” not “prior offenses.” I disagree.
The sentencing guidelines clearly contemplate that a “prior
sentence” is synonymous with and shorthand for a “prior offense.”
The Majority is ignoring that the guidelines define “prior sentence”
to mean “any sentence previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of nolo contendere, for
conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1)
(emphasis added). In other words, a “prior sentence” previously
imposed for conduct not part of the instant offense is a “prior
offense.”
Indeed, it is clear from other sections of the guidelines that
the term “prior sentence” is synonymous with a “prior offense.”
See, e.g., U.S.S.G. § 2L1.2 cmt. (n.6) (explaining that a departure
based on the seriousness of a “prior offense” may be warranted in
certain circumstances, including when “the prior conviction is too
remote to receive criminal history points (see § 4A1.2(e)))”; Id.
§ 4A1.2(a)(2) (explaining that “[p]rior sentences always are counted
separately if the sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested for
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19-14650 BRANCH, J., Dissenting 20
the first offense prior to committing the second offense”))
(emphasis added); Id. § 4A1.2(c)(1) (explaining that “[s]entences for
the following prior offenses . . . are counted only if . . . .”) (emphasis
added). Furthermore, we have consistently understood “prior
sentences” as used in the guidelines to be synonymous with a
defendant’s prior offenses of conviction. See United States v.
Glover, 154 F.3d 1291, 1293 n.3 (11th Cir. 1989) (“Section 4A1.1
assigns criminal history points for certain prior convictions based
on a variety of factors, including the length of the sentence of
imprisonment imposed.”); United States v. Orozco, 121 F.3d 628,
630 (11th Cir. 1997) (“Under the sentencing guidelines, criminal
history points are assigned for prior criminal convictions.”).
Third, the Majority has crafted an unusual approach that
would involve assigning criminal history points to a defendant’s
“prior offense” where that offense did not otherwise receive
criminal history points “as determined under the sentencing
guidelines.” But the statute points specifically to the sentencing
guidelines, which do no such thing. Rather, Chapter 4 of the
guidelines determines, for all circumstances, whether a prior
offense receives criminal history points, and it directs that certain
prior offenses are not counted. Section 4A1.1 specifies when points
are added to “prior sentences” for purposes of calculating a
defendant’s criminal history score:
The total points from subsections (a) through (e)
determine the criminal history category in the
Sentencing Table in Chapter Five, Part A.
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19-14650 BRANCH, J., Dissenting 21
(a) Add 3 points for each prior sentence of
imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of
imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in
(a) or (b), up to a total of 4 points for this subsection.
(d) Add 2 points if the defendant committed the
instant offense while under any criminal justice
sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.
(e) Add 1 point for each prior sentence resulting from
a conviction of a crime of violence that did not receive
any points under (a), (b), or (c) above because such
sentence was treated as a single sentence, up to a total
of 3 points for this subsection.
(emphasis added). And § 4A1.2 and the commentary to § 4A1.1—
which operate in tandem and must be read together—provide
when sentences are counted or not counted for purposes of
§ 4A1.1(a)–(e). U.S.S.G. § 4A1.1 cmt. (n.1); see also United States
v. Walker, 912 F.2d 1365, 1366 (11th Cir. 1990) (holding that
“sections 4A1.1 and 4A1.2 must be read together”). Those rules
provide that sentences of a certain age are not counted, U.S.S.G.
§ 4A1.2(e), and that multiple prior sentences imposed on the same
day or stemming from the same charging document are treated as
a single sentence, id. § 4A1.2(a)(2). Thus, the sentencing guidelines
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make clear that a court cannot “add” criminal history points for a
prior sentence, but then not count those points for purposes of
determining the criminal history score.
By including the language “as determined under the
sentencing guidelines” in subsections (A), (B), and (C), Congress
plainly directed courts to consult and follow the directives of the
sentencing guidelines when determining whether the defendant
has the disqualifying criminal history specified in § 3553(f)(1)(A)–
(C). Based on the statutory language and the text of the guidelines,
I do not believe that Congress introduced a new concept of “prior
offense” in § 3553(f)(1). Rather, I agree with the Eighth Circuit that
Congress’s use of “prior offense” in the statute was simply “a form
of common sense-shorthand . . . that incorporated the
determinations of criminal history points under USSG § 4A1.1.”
Pulsifer, 39 F.4th at 1020. Consequently, the Majority’s
explanation for why subsection (A) is not superfluous under its
conjunctive reading of the “and” in § 3553(f)(1) cannot stand, and
it is left with a significant surplusage problem.
C. In addition to surplusage, the Majority’s
interpretation presents other fundamental problems
Surplusage is not the only problem with the Majority’s
interpretation. In order to accept the Majority’s sometimes-we-
count-sometimes-we-don’t theory, we would have to effectively
rewrite subsections (B) and (C) in one of two ways. Specifically,
for the Majority’s theory to work, we would have to remove the
“as determined under the sentencing guidelines” language from
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19-14650 BRANCH, J., Dissenting 23
§ 3553(f)(1)(B) and (C) because, as discussed previously, under the
sentencing guidelines prior offenses of a certain age or that were
treated as part of a single sentence do not receive points; therefore,
in order for these unscored prior offenses to be a 3-point offense or
a 2-point violent offense for purposes of (B) and (C), the “as
determined under the sentencing guidelines” language must be
removed. Alternatively, if no language is removed, then for the
Majority’s theory to work, we would need to add language to the
statute—i.e.,“a prior 3-point offense, as determined under the
guidelines, regardless of whether the offense was counted ” or “a
prior 3-point offense as determined solely under § 4A1.1 of the
guidelines without regard to the counting rules of the guidelines.”
But adding words to or removing words from a statute is a task
which the judiciary is not at liberty to undertake. See Friends of
Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1224 (11th
Cir. 2009) (“[W]e are not allowed to add or subtract words from a
statute; we cannot rewrite it.”); see also Blount v. Rizzi, 400 U.S.
410, 419 (1971) (“[I]t is for Congress, not this Court, to rewrite the
statute.”). Thus, § 3553(f)(1) cannot support the strained reading
that Garcon and the Majority advance to support its conjunctive
“and” interpretation.
While I disagree with much of the Majority’s analysis, I note
that we agree that its conjunctive (non-distributive) interpretation
of “and” does not produce truly absurd results for purposes of
invoking the absurdity canon. That is, if the text were clear in
supporting the Majority’s reading, then the resulting absurdity
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19-14650 BRANCH, J., Dissenting 24
alone would not be a reason to vary from the text. See Small v.
United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting)
(explaining that “[w]e should employ [the] canon [against
absurdities] only where the result of applying the plain language
would be, in a genuine sense, absurd, i.e., where it is quite
impossible that Congress could have intended the result . . . and
where the alleged absurdity is so clear as to be obvious to most
anyone” (quotation omitted)). Nevertheless, I note that under the
Majority’s interpretation virtually every criminal defendant will
pass § 3553(f)(1)’s requirements and qualify for safety-valve relief,
including serious, repeat violent offenders. The only defendants
excluded under the Majority’s interpretation are those that have
more than 4 criminal history points, AND a prior 3-point offense,
AND a prior 2-point violent offense—a unique criminal history
cocktail to be sure. In other words, there is no limit on the number
of criminal history points or three point-offenses or two-point
violent offenses a defendant may have, as long as he does not have
all three components of the criminal history cocktail. See also
Pace, 48 F.4th at 755 (concluding that the conjunctive
interpretation “produces absurd results” because it would “afford
leniency to defendants with more serious offenses (those serious
enough to receive three criminal history points) while denying
safety-valve eligibility to the defendants with less serious offenses
that received only two points”).
Although the Majority suggests that the government’s
concern that serious, repeat violent offenders will qualify for safety-
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19-14650 BRANCH, J., Dissenting 25
valve relief is unfounded because § 3553(f)(2)–(5) will often
disqualify those types of defendants, the Majority ignores that
subsections (f)(2)–(5) disqualify defendants based on conduct in
connection with the instant offense. In contrast, subsection (f)(1)
is the only subsection focused on a defendant’s prior criminal
history. Accordingly, (f)(2)–(5) do not operate to disqualify
offenders with a serious, repeat, or violent criminal history from
safety-valve relief. The application of the Majority’s theory to
Garcon demonstrates this point. Garcon had three criminal history
points, but four 3-point offenses for purposes of subsection (B) (one
prior offense that scored 3 points and three older ones that did not),
and two 1-point offenses (that did not score points due to age). Yet,
he still qualifies for safety-valve relief under the Majority’s
interpretation. In fact, even if Garcon had 20 3-point prior offenses
(totaling 60 criminal history points), he would qualify for safety-
valve relief because he does not have a 2-point violent offense.
Thus, the government has a legitimate concern that serious, repeat
offenders—even defendants with prior convictions for murder—
may qualify for safety-valve relief.
Accordingly, although the ordinary meaning and the
consistent usage canons of statutory construction advanced by the
Majority may counsel in favor of its conjunctive interpretation,
those principles of interpretation are cabined by the statutory
context and countered by the canon against surplusage, which
point us in a different direction. A disjunctive interpretation, by
contrast, gives full effect to each of the provisions in § 3553(f)(1),
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 71 of 85
19-14650 BRANCH, J., Dissenting 26
better adhering to the text of the statute by giving each provision
its full effect. Consequently, the ordinary-meaning canon and the
related consistent usage canon marshaled by the Majority must
readily yield to context.
D. The Rule of Lenity Does Not Apply
As a final point, the Majority concludes that if the canons of
statutory construction lend toward two different interpretations,
then we are left with an ambiguous statute and the rule of lenity
would apply, such that we would be compelled to construe “and”
using its conjunctive approach. The Majority is wrong.
“The rule of lenity is a canon of statutory construction that
requires courts to construe ambiguous criminal statutes narrowly
in favor of the accused.” United States v. Watts, 896 F.3d 1245,
1255 (11th Cir. 2018) (quotation omitted). When the rule of lenity
applies, it prevents a court from “giv[ing] the text a meaning that is
different from its ordinary, accepted meaning, and that disfavors
the defendant.” Burrage v. United States, 571 U.S. 204, 216 (2014).
“The simple existence of some statutory ambiguity,
however, is not sufficient to warrant application of [the rule of
lenity], for most statutes are ambiguous to some degree.”
Muscarello v. United States, 524 U.S. 125, 138 (1998). The Supreme
Court has affirmed repeatedly that the mere fact that canons of
statutory construction may point in different directions or that it is
possible to articulate a narrower construction of a statute do not
render a statute ambiguous for purposes of invoking the rule of
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 72 of 85
19-14650 BRANCH, J., Dissenting 27
lenity. Moskal v. United States, 498 U.S. 103, 108 (1990); United
States v. Shabani, 513 U.S. 10, 17 (1994); Smith v. United States, 508
U.S. 223, 239 (1993). Similarly, “[a] statute is not ‘ambiguous’ for
purposes of lenity merely because there is a division of judicial
authority over its proper construction.” Reno v. Koray, 515 U.S.
50, 64 (1995) (quotations omitted). Rather, the rule of lenity is
reserved for when “grievous ambiguity” remains “even after resort
to ‘the language and structure, legislative history, and motivating
policies of the statute.’” Moskal, 498 U.S. at 108 (quoting Bifulco
v. United States, 447 U.S. 381, 387 (1980)); see also Barber v.
Thomas, 560 U.S. 474, 488 (2010); Chapman v. United States, 500
U.S. 453, 463 (1991); Shular v. United States, 140 S. Ct. 779, 788
(2020) (Kavanaugh, J., concurring). A grievous ambiguity exists
when, after applying all the tools of statutory interpretation, “the
Court must simply guess as to what Congress intended.’” Barber,
560 U.S. at 488 (quoting Bifulco, 447 U.S. at 387). As a result, “the
rule of lenity rarely comes into play.” Shular, 140 S. Ct. at 788
(Kavanaugh, J., concurring) (emphasis added).
The Majority faithfully cites the grievous ambiguity
standard, but then applies it incorrectly. According to the Majority,
even though—in its view—numerous tools of statutory
construction point toward its interpretation, if the canon against
surplusage points toward the government’s interpretation, then
the rule of lenity would apply and require us to give the word “and”
its ordinary, conjunctive meaning. But the grievous ambiguity
standard is not the toothless one that the Majority applies. The rule
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19-14650 BRANCH, J., Dissenting 28
of lenity has no application in the absence of grievous ambiguity in
the statute, and one tool of statutory construction pointing in a
different direction does not mean that there is a grievous ambiguity
in the statute. Moskal, 498 U.S. at 108; Shabani, 513 U.S. at 17;
Smith, 508 U.S. at 239. Here, after considering the structure and
context of the statute and applying the traditional tools of statutory
construction, a best reading of “and” in § 3553(f)(1) clearly
emerges. To the extent there remains ambiguity in § 3553(f)(1), it
is far from grievous. Accordingly, the rule of lenity has no role to
play in the interpretation of § 3553(f)(1), and I agree with the Fifth
and Seventh Circuits on this point. See Palomares, 52 F.4th at 647;
Pace, 48 F.4th at 755 (rejecting the argument that the rule of lenity
applied and explaining that the two interpretations of “and” in
§ 3553(f)(1) were not “equally plausible”). The Majority’s dicta
about the rule of lenity runs afoul of the Supreme Court’s teachings
on the rule. If the Majority were to faithfully apply the rule, it too
would conclude that the rule has no application here.
E. Conclusion
A disjunctive interpretation of “and” in § 3553(f)(1) is
supported by the traditional rules of statutory construction and
gives meaning to every clause of the statute (without requiring the
mental gymnastics or rewriting of the statute that the Majority’s
conjunctive interpretation requires). Accordingly, I would hold
that the “and” in § 3553(f)(1) is disjunctive. However, regardless of
whether the court reads the “and” in § 3553(f)(1) as disjunctive or
distributive, the best reading of § 3553(f)(1) is that it bars safety-
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19-14650 BRANCH, J., Dissenting 29
valve relief for defendants who have any one of the enumerated
criminal history characteristics in (A)–(C). Thus, Garcon is
ineligible for safety-valve relief because he has a disqualifying 3-
point offense under § 3553(f)(1)(B), and I would vacate his sentence
and remand for resentencing. The Majority’s interpretation is
contrary to the text of the statute when considered in context and
renders portions of the statute superfluous. Consequently, I
respectfully dissent.
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 75 of 85
BRASHER, Circuit Judge, Dissenting:
I join Judge Branch’s dissent. I write separately to make a
comment on criminal-history-based sentencing and to give some
advice to district judges about how to deal with the majority’s
decision.
Federal sentencing policy is, to a significant extent, based on
the idea that we should impose harsher sentences on people with
more significant crimes in their past. The upshot is that two people
can commit the same crime in the same way in the same place on
the same day, but they will receive markedly different sentences if
they have committed a different number or type of crimes in the
past. This policy is built into the sentencing guidelines, where the
severity of sentences increases based on the accumulation of
criminal history points. See U.S.S.G. § 4.1.1 et seq. And it is
reflected in important federal statutes that impose mandatory
minimums for offenders based on criminal history—the number of
crimes committed in the past, the severity of the crime, the
violence associated with those crimes, etc. See, e.g., 18 U.S.C. §
924(e); 21 U.S.C. § 841(b)(1)(A)(viii).
There is no question that this sentencing scheme is
constitutional. See Ewing v. California, 538 U.S. 11 (2003). People
who commit more serious and more violent crimes in the past are
likely to commit more serious and more violent crimes in the
future. And statistics tell us that it takes a longer sentence to deter
and rehabilitate a repeat criminal as compared to a first-time
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 76 of 85
19-14650 BRASHER, J., Dissenting 2
offender. So it is perfectly rational to account for an offender’s
criminal history when imposing a sentence for a new offense.
But I am concerned that the federal courts are increasingly
turning this rational system into an arbitrary and capricious game
of gotcha. The judicial elimination of the residual clause of the
Armed Career Criminal Act, for instance, has led courts to impose
its mandatory minimums in a difficult-to-justify way. Here’s an
example: For purposes of counting previous convictions towards
the mandatory minimum, a court must treat a previous conviction
for an attempted robbery as nonviolent, even if the victim is shot
and killed during the attempt; but a court must treat a previous
conviction for a successful robbery as violent, even if it was
committed with a handwritten note. See United States v. Taylor,
142 S. Ct. 2015 (2022). I could go on with more examples, but the
problem has already been catalogued elsewhere. See generally id.
at 2026 (Thomas, J., dissenting); Borden v. United States, 141 S. Ct.
1817, 1855-57 (2021) (Kavanaugh, J., dissenting).
Now our Court has adopted a reading of the safety valve
that makes the most violent and recidivist criminals eligible for a
sentence below the mandatory minimum. If two people commit
the same crime, why should the one with decades of 3-point
violent felony convictions receive a lower sentence than the one
whose past crimes are a single 3-point nonviolent offense and a 2-
point violent misdemeanor? See Rosenbaum, Concurring Op., at
3–5; Branch, Dissenting Op., at 23-26; United States v. Pace, 48
F.4th 741, 755 (7th Cir. 2022). The majority opinion has no
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 77 of 85
19-14650 BRASHER, J., Dissenting 3
justification for such a result, and neither do I. Under the Court’s
decision, only an unusually hapless defendant with an odd
combination of past offenses will be subject to a mandatory
minimum because of his criminal history. I fear that, if we keep
going down this path, our criminal-history-based sentencing
scheme will become so arbitrary as to raise serious questions about
its constitutionality. See Chapman v. United States, 500 U.S. 453,
464–65 (1991) (under the Due Process Clause of the Fifth
Amendment, a sentence may not be based “on an arbitrary
distinction”). And I think this possibility is another point in favor of
Judge Branch’s perfectly reasonable reading of the statute.
With all of that in mind, here is my advice for district judges:
The Court’s opinion gives you discretion to sentence offenders
with serious and violent criminal histories to sentences below the
applicable mandatory minimum. But you shouldn’t do it. Your job
is getting more difficult. Because of this opinion, you will have to
calculate sentencing ranges under the guidelines that presume
some offenders will be eligible for significantly lower sentences
than they should justifiably receive. See United States v. Quirante,
486 F.3d 1273, 1275-76 (11th Cir. 2007). But no one in the majority
has suggested that you should actually sentence repeat criminals as
if they were first-time offenders. “[S]afety valve eligibility does not
guarantee [a defendant] a below-statutory minimum sentence; it
just gives the court the opportunity to sentence below the
minimum if it believes it is appropriate.” United States v. Owens,
38 F.4th 1, 3 (8th Cir. 2022). “[A] court compelled to disregard a
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 78 of 85
19-14650 BRASHER, J., Dissenting 4
mandatory minimum sentence in favor of the guidelines range” by
the safety valve “may vary upward to and even past the mandatory
minimum point after considering the § 3553(a) factors—so long as
the final sentence is reasonable.” Quirante, 486 F.3d at 1276.
The Court’s decision deepens a circuit split that is sure to
attract the attention of the Supreme Court. In the meantime, if a
criminal defendant has a serious 3-point offense or a 2-point violent
offense in his past, a district judge should carefully consider
exercising his or her discretion to impose a sentence at the
otherwise applicable mandatory minimum.
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 79 of 85
66
1 felony drug offense has become final, such person
2 shall be sentenced to a term of imprisonment of not
3 less than 20 years’’ and inserting ‘‘If any person
4 commits such a violation after a prior conviction for
5 a serious drug felony or serious violent felony has
6 become final, such person shall be sentenced to a
7 term of imprisonment of not less than 15 years’’;
8 and
9 (2) in paragraph (2), in the matter following
10 subparagraph (H), by striking ‘‘felony drug offense’’
11 and inserting ‘‘serious drug felony or serious violent
12 felony’’.
13 (c) APPLICABILITY TO PENDING CASES.—This sec-
14 tion, and the amendments made by this section, shall
15 apply to any offense that was committed before the date
16 of enactment of this Act, if a sentence for the offense has
17 not been imposed as of such date of enactment.
18 SEC. 402. BROADENING OF EXISTING SAFETY VALVE.
19 (a) AMENDMENTS.—Section 3553 of title 18, United
20 States Code, is amended—
21 (1) in subsection (f)—
22 (A) in the matter preceding paragraph
23 (1)—
24 (i) by striking ‘‘or section 1010’’ and
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25 inserting ‘‘, section 1010’’; and
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USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 80 of 85
67
1 (ii) by inserting ‘‘, or section 70503 or
2 70506 of title 46’’ after ‘‘963)’’;
3 (B) by striking paragraph (1) and insert-
4 ing the following:
5 ‘‘(1) the defendant does not have—
6 ‘‘(A) more than 4 criminal history points,
7 excluding any criminal history points resulting
8 from a 1-point offense, as determined under the
9 sentencing guidelines;
10 ‘‘(B) a prior 3-point offense, as determined
11 under the sentencing guidelines; and
12 ‘‘(C) a prior 2-point violent offense, as de-
13 termined under the sentencing guidelines;’’; and
14 (C) by adding at the end the following:
15 ‘‘Information disclosed by a defendant under this sub-
16 section may not be used to enhance the sentence of the
17 defendant unless the information relates to a violent of-
18 fense.’’; and
19 (2) by adding at the end the following:
20 ‘‘(g) INADEQUACY OF CRIMINAL HISTORY.—
21 ‘‘(1) IN GENERAL.—If subsection (f) does not
22 apply to a defendant because the defendant does not
23 meet the requirements described in subsection (f)(1)
24 (relating to criminal history), the court may, upon
daltland on DSKBBV9HB2PROD with BILLS
25 prior notice to the Government, waive subsection
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USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 81 of 85
68
1 (f)(1) if the court specifies in writing the specific
2 reasons why reliable information indicates that ex-
3 cluding the defendant pursuant to subsection (f)(1)
4 substantially overrepresents the seriousness of the
5 defendant’s criminal history or the likelihood that
6 the defendant will commit other crimes.
7 ‘‘(2) PROHIBITION.—This subsection shall not
8 apply to any defendant who has been convicted of a
9 serious drug felony or a serious violent felony, as
10 those terms are defined in section 102 of the Con-
11 trolled Substances Act (21 U.S.C. 802).
12 ‘‘(h) DEFINITION OF VIOLENT OFFENSE.—As used
13 in this section, the term ‘violent offense’ means a crime
14 of violence, as defined in section 16, that is punishable
15 by imprisonment.’’.
16 (b) APPLICABILITY.—The amendments made by this
17 section shall apply only to a conviction entered on or after
18 the date of enactment of this Act.
19 SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18,
20 UNITED STATES CODE.
21 (a) IN GENERAL.—Section 924(c)(1)(C) of title 18,
22 United States Code, is amended, in the matter preceding
23 clause (i), by striking ‘‘second or subsequent conviction
24 under this subsection’’ and inserting ‘‘violation of this sub-
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USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 84 of 85
The First Step Act of 2018 (S.3649) – as introduced
Grassley, Durbin, Lee, Whitehouse, Graham, Booker, Scott, Leahy, Ernst, Klobuchar, Moran, Coons
Reducing Federal Recidivism and Crime
Provides for increased programming designed to reduce recidivism and provides incentives for participation in
those programs.
Implements a post-sentencing dynamic risk assessment system to determine an inmate’s risk of committing
more crimes upon release from prison.
Establishes eligibility criteria for and incentivizes participation in evidence-based recidivism reduction
programs by allowing prisoners to earn time credits for prerelease custody (defined as residential reentry
centers or, for low risk prisoners, home confinement). For example, a prisoner may earn 10 days of time credit
for every 30 days of successful participation in a recidivism-reduction program or other eligible activity.
However, only prisoners classified as minimum or low risk may redeem these time credits to reduce their
sentence.
In addition to the exclusion preventing all but those classified as minimum or low risk from redeeming time
credits, the bill makes clear that violent and high-risk criminals convicted of certain serious offenses are
ineligible for the pre-release custody program, including those convicted of crimes relating to terrorism,
murder, sexual exploitation of children, espionage, violent firearms offenses, or those that are organizers,
leaders, managers, supervisors in the fentanyl and heroin drug trade. Prisoners are also ineligible to apply
time credits if subject to a final order of removal under the Immigration and Nationality Act.
Preparing Inmates for Successful Return to Society
Provides more meaningful employment and training opportunities for inmates by expanding the federal
prison industries program.
Requires the Bureau of Prisons (BOP) to submit a report and evaluation of the current pilot program to treat
heroin and opioid abuse through medication—assisted treatment.
Extends the compassionate elderly release provision from the Second Chance Act that allows the prisoner to
request for his or her compassionate release if he or she meets the requirements set out in the law.
Codifies BOP’s rules that generally prohibit the use of restraints on pregnant inmates except those who are an
immediate and credible flight risk or threat of harm to herself or others.
Mandates inmates be housed no more than 500 miles from the prisoner’s primary residence and grants
authority for prisoners to save earnings in an escrow account used for pre-release expenses, such as
transportation and housing.
Clarifies the formula by which the BOP calculates good time credit (time off for good behavior) in line with
original Congressional intent. Under current law, prisoners can earn up to 54 days per year for good behavior
in prison, but technicalities in the law keep prisoners on early release from utilizing those days.
Enhancing Prison Security and Officer Safety
Requires the Director of BOP to provide a secure storage area outside the secure perimeter for employees to
store firearms or to allow for vehicle lock boxes for firearms.
11/15/2018
USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 85 of 85
Directs the Director of BOP to provide de-escalation training as part of the regular training requirements of
correctional officers.
Reforming Federal Criminal Sentencing
Clarification of 18 U.S.C. § 924(c) – S.1917 Section 104 applied prospectively: This section clarifies that the
enhanced mandatory minimum sentence for using a firearm during a crime of violence or drug crime is
limited to offenders who have previously been convicted and served a sentence for such an offense.
Previously the courts interpreted this law intended for repeat offenders as applying also to first-time
offenders, sometimes requiring courts to impose overly harsh, decades-long sentences for charges brought in
a single indictment.
Reform to 21 U.S.C. 841 & 851 - S.1917 Section 101 applied prospectively: The section focuses the toughest
criminal sentencing on serious drug felons and expands the definition of serious violent felons to enhance the
sentences of violent criminals. Maximum penalties remain in place. Mandatory minimum penalties are
reduced to permit some additional judicial discretion, but not eliminated. The three-strike penalty is reduced
from life imprisonment to 25 years, and the 20-year minimum is reduced to 15 years. But while the
mandatory minimum for the three-strike penalty is reduced, it is also adjusted to apply to the worst
criminals—including, for the first time, to violent felons. The third-strike penalty currently applies only to
offenders with prior drug felonies. This penalty now applies to all offenders convicted of a serious drug
felony or a serious violent felony.
Expansion of existing federal safety valve for mandatory minimum sentencing – S.1917 Section 102 applied
prospectively: This section expands the existing safety valve to include offenders with up to four criminal
history points, excluding 1-point offenses, such as minor misdemeanors. However, offenders with prior “3
point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses
(violent offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial
finding that those prior offenses substantially overstate the defendant’s criminal history and danger of
recidivism. Consistent with existing law, a judge cannot apply the safety valve unless the defendant has fully
cooperated with law enforcement and has not used or threatened to use violence or firearms, caused death
or serious bodily injury, or was an organizer, leader, manager, or supervisor of others in connection with the
offense.
Retroactive Application of the Fair Sentencing Act of 2010 – S.1917 Section 105: This section allows prisoners
sentenced before the Fair Sentencing Act of 2010 reduced the 100-to-1 disparity in sentencing between crack
and powder cocaine to petition the court for an individualized review of their case. This reform would bring
sentences imposed prior to 2010 in line with sentences imposed after the Fair Sentencing Act was passed.
Other Reforms
Immigration Fix. The bill clarifies that prisoners subject to a final order of removal under 8 U.S.C. 1101,
including illegal immigrants, are not eligible to apply time credits.
Fentanyl and Heroin Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving
time credits under the First Step Act who were convicted of fentanyl or heroin offenses involving 5 and 10
year mandatory minimums and who were organizers, leaders, managers or supervisors in the offense.
Firearm Offense Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving time
credits under the First Step Act who brandish or discharge firearms. Those who committed a felony with
possession of a firearm are also excluded if they are repeat offenders who have already taken advantage of
recidivism programming under the First Step Act.
Crimes Against Children Exclusion. Offenders who have committed serious crimes against children will not be
able to shorten their sentences. This includes anyone convicted of sex trafficking of children (18 U.S.C. §
1591), sexual abuse of a child (18 U.S.C. §§ 2243, 2244(c)), child pornography offenses (18 U.S.C. §§ 2251,
2252, 2252A, 2260), buying and selling of children (18 U.S.C. § 2251A), or the recruitment of child soldiers (18
U.S.C. § 2442).
11/15/2018