PULSIFER v. UNITED STATES
No. 22–340
SUPREME COURT OF THE UNITED STATES
Argued October 2, 2023—Decided March 15, 2024
601 U. S. 124 (2024)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
After pleading guilty to distributing at least 50 grams of methamphetamine, petitioner Mark Pulsifer faced a mandatory minimum sentence of 15 years in prison. At sentencing, he sought to take advantage of the “safety valve” provision of federal sentencing law, which allows a sentencing court to disregard the statutory minimum if a defendant meets fve criteria. Among those is the requirement, set out in Paragraph (f)(1), that the sentencing court fnd that—
- the defendant does not have—
- more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
- a prior 3-point offense, as determined under the sentencing guidelines; and
- a prior 2-point violent offense, as determined under the sentencing guidelines.
The Government argued that Pulsifer could not satisfy that requirement because he had two prior three-point offenses totaling six criminal-history points. In the Government‘s view, each of those prior offenses disqualifed him under Subparagraph B and the six total points disqualifed him under Subparagraph A. But Pulsifer claimed he remained eligible. He pointed out that his criminal record lacked a two-point violent offense, as specifed in Subparagraph C. And in his view, only the combination of the items listed in the subparagraphs could prevent him from getting safety-valve relief. The District Court agreed with the Government, and the Eighth Circuit affrmed.
Held: A defendant facing a mandatory minimum sentence is eligible for safety-valve relief under
- Each party offers a grammatically permissible way to read Paragraph (f)(1). Under Pulsifer‘s reading, the word “and” joins three features of a defendant‘s criminal history into a single disqualifying charac-
teristic; accordingly, a defendant is ineligible for the safety valve only if he has the items listed in Subparagraphs A, B, and C in combination. In the Government‘s view, “and” connects three criminal-history conditions, all of which must be satisfed to gain safety-valve relief. In other words, the court must fnd the defendant does not have A, does not have B, and does not have C. Each of those readings is possible in the abstract. The choice between the two can sensibly be made only by examining the content of Paragraph(f)(1)‘s three subparagraphs, including what they say, how they relate to each other, and how they ft with other pertinent law. Pp. 132–141. - The text and context of Paragraph (f)(1), as read against the Guidelines, yield just one plausible statutory construction. The paragraph creates an eligibility checklist, and specifes three necessary conditions for safety-valve relief. Reading the paragraph as Pulsifer does to set out a single condition—i. e., that the defendant not have the combination of the characteristics listed in Subparagraphs A, B, and C—would create two statutory diffculties that the Government‘s reading does not. Pp. 141–149.
- Pulsifer‘s reading would render Subparagraph A superfuous because a defendant who has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C will always have more than four criminal-history points under Subparagraph A. That reading leaves Subparagraph A with no work to do: removing it from the statute would make the exact same people eligible (and ineligible) for relief. That kind of superfuity, in and of itself, refutes Pulsifer‘s reading. When a statutory construction “render[s] an entire subparagraph meaningless,” this Court has noted, the canon against surplusage applies with special force. National Assn. of Mfrs. v. Department of Defense, 583 U. S. 109, 128. That is particularly true when, as here, the subparagraph is so evidently designed to serve a concrete function. Pp. 142–146.
- Pulsifer‘s reading would also create a second problem related to Paragraph (f)(1)‘s gatekeeping function. The Guidelines presume that defendants with worse criminal records—exhibiting recidivism, lengthy sentences, and violence—deserve greater punishment. Under the Government‘s reading, Paragraph (f)(1) sorts defendants accordingly. When the defendant has committed multiple non-minor offenses, he cannot get relief (Subparagraph A). And so too when he has committed even a single serious offense punished with a lengthy prison sentence (Subparagraph B) or one involving violence (Subparagraph C). Pulsifer‘s reading, by contrast, would allow safety-valve relief to defendants with more serious records while barring relief to defendants with less serious ones. A defendant with a three-point offense and a two-point
violent offense would be denied relief. But a defendant with multiple three-point violent offenses could get relief simply because he happens not to have a two-point violent offense.
Contrary to Pulsifer‘s view, that anomalous result cannot be ignored on the ground that a sentencing judge retains discretion to impose a lengthy sentence. If Congress thought it could always rely on sentencing discretion, it would not have created a criminal-history requirement in the frst instance. Instead, it specifed a requirement that allows such discretion to operate only if a defendant‘s record does not reach a certain level of seriousness. Pulsifer‘s construction of Paragraph (f)(1) makes a hash of that gatekeeping function. Pp. 146–149.
- The uncontested fact that Congress amended Paragraph (f)(1) as part of the First Step Act to make safety-valve relief more widely available does not assist in interpreting the statutory text here. Both parties’ views of the paragraph widen the opportunity for safety-valve relief, and Pulsifer‘s interpretation is not better just because it would allow more relief than the Government‘s. “[N]o law pursues its . . . purpose[s] at all costs.” Luna Perez v. Sturgis Public Schools, 598 U. S. 142, 150. Here, where Congress did not eliminate but only curtailed mandatory minimums, the Court can do no better than examining Paragraph (f)(1)‘s text in context to determine the exact contours of the defendants to whom Congress extended safety-valve relief. Pp. 151–152.
- The Court rejects Pulsifer‘s efforts to invoke the rule of lenity. Lenity applies only when a statute is genuinely ambiguous. For the reasons explained above, although there are two grammatically permissible readings of Paragraph (f)(1), in context its text is susceptible of only one possible construction. That leaves no role for lenity to play. Pp. 152–153.
39 F. 4th 1018, affrmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., fled a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined, post, p. 155.
Shay Dvoretzky argued the cause for petitioner. With him on the briefs were Parker Rider-Longmaid, Kyser Blakely, and J. Robert Black.
Frederick Liu argued the cause for the United States. With him on the brief were Solicitor General Prelogar, As-
PULSIFER v. UNITED STATES
No. 22–340
SUPREME COURT OF THE UNITED STATES
Argued October 2, 2023—Decided March 15, 2024
601 U. S. 124 (2024)
The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms. To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history. That criterion, in stylized form, requires that a defendant “does not have A, B, and C”—where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence. In brief (with details below), A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.”
The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions. On that view, a defendant meets the requirement (and so is eligible for safety-valve relief) if he does not have A, does not have B, and does not have C. Or stated conversely, a person fails to meet the requirement (and so cannot get relief) if he has any one of the three. The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief. On his reading, a defendant meets the requirement (and is eligible for relief) so long as he does not have
I
Congress sometimes establishes mandatory minimum penalties for crimes, including drug offenses. Those provisions put a lower limit on a court‘s sentencing discretion, refecting Congress‘s judgment that specifed conduct demands no less than a specifed punishment. For drug offenses of the kind involved here, the existence and length of minimum penalties typically depend on the type and quantity of the drug at issue, the harm resulting from the crime, and (relevant here) the defendant‘s criminal history.
The safety-valve provision,
The criminal-history requirement—we usually call it Paragraph (f)(1)—recently underwent a substantial revision, making it easier for a defendant to meet. As originally enacted, the paragraph limited safety-valve relief to defendants who “d[id] not have more than 1 criminal history point, as determined under the sentencing guidelines.” Vio-
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.
And if the defendant also meets
As the text makes clear, the new Paragraph (f)(1) (like the old one) turns on the defendant‘s criminal-history points under the Guidelines. In general, the severity of Guidelines sentencing recommendations increases with the number of criminal-history points the defendant has (often called his criminal-history score). And the Guidelines assign more points to more serious prior offenses. There is a caveat to that rule, which will become pertinent later. See infra, at 143–146. Some prior convictions, even if for serious offenses, do not add any points to a defendant‘s score. That is true, for example, if the conviction is quite old or if it was rendered by a foreign court. See U. S. Sentencing Guidelines (USSG)
This case involves a dispute about whether Paragraph (f)(1) bars petitioner Mark Pulsifer from gaining safety-valve relief. Pulsifer pleaded guilty in 2020 to distributing at least 50 grams of methamphetamine. He faced a mandatory minimum of 15 years in prison unless the safety-valve provision came to his aid. The Government claimed it did not because Pulsifer could not meet its criminal-history requirement. Pulsifer had two relevant prior convictions, each for a three-point offense. In the Government‘s view, that fact disqualifed Pulsifer from obtaining relief several times over. He had not just one but two “prior 3-point offense[s],” as specifed in Subparagraph B of the requirement. And because three plus three equals six, he also had “more than 4 criminal history points,” as specifed in Subparagraph A. But Pulsifer claimed that was still not enough. He pointed out that his criminal record lacked a “2-point violent offense,” as specifed in Subparagraph C. And in his view, only the combination of the items listed in the three subpara-
The District Court rejected Pulsifer‘s argument, ruling that a defendant is “ineligible for safety valve” relief if he has any of the “three things” specifed in Paragraph (f)(1). App. to Pet. for Cert. 35a–36a. The mandatory minimum, the court concluded, thus applied to Pulsifer‘s sentence.
The Court of Appeals for the Eighth Circuit affrmed. The court framed the question as “in what sense the statute uses the word ‘and.’ ” 39 F. 4th 1018, 1021 (2022). In the abstract, the court stated, the phrase “the defendant does not have (A), (B), and (C)” might be read in two different ways. It could mean that the defendant does not have the combination of the “three elements listed in (A), (B), and (C),” as Pulsifer urged. Ibid. Or it could mean, as the Government argued, that the defendant does not have every one of those elements—in other words, that he does not have (A), does not have (B), and does not have (C). In choosing between those readings, the court found a “strong textual basis” to prefer the Government‘s. Ibid. If Pulsifer were right, the court explained, Subparagraph A would be “rendered superfuous”—without the slightest effect. Ibid. “A defendant who has a prior three-point offense under [Subparagraph B] and a prior two-point violent offense under [Subparagraph C] would always meet the criterion in [Subparagraph A], because he would always have more than four criminal history points.” Ibid. That was reason enough to read Paragraph (f)(1) the other way—as an “eligibility checklist” of three distinct conditions, each of which the defendant must meet to qualify for safety-valve relief. Id., at 1022. And on that view, the court concluded, Pulsifer could not escape a mandatory minimum: Because he had a pair of three-point offenses, it was simply “immaterial” that he did not also “have a prior two-point violent offense.” Id., at 1022–1023.
II
We start with Paragraph (f)(1)‘s grammatical structure, because Pulsifer‘s main argument (and initially the dissent‘s) is that it resolves this case. See Brief for Pulsifer 16–20; post, at 161–162 (opinion of Gorsuch, J.).2 Recall that the paragraph requires a court to fnd that the defendant does not have the features specifed in Subparagraphs A, B, and C. “Because Congress used ‘and’ to connect” those subparagraphs, Pulsifer contends, “a defendant is ineligible” for safety-valve relief “only if he has the complete combo”—i. e., more than four criminal-history points plus a prior three-point offense plus a prior two-point violent one. Brief for Pulsifer 19. That result follows, Pulsifer claims, simply
“And,” in grammatical terms, is of course a conjunction—a word whose function is to connect specifed items. Both parties here agree with that elementary proposition. See Brief for Pulsifer 18; Brief for United States 14. The word “and,” each might say, means . . . well, and. Indeed, to the extent elaboration is needed, both parties select the same defnition from the same dictionary. “And,” they recite in concert, means “along with or together with.” Webster‘s Third New International Dictionary 80 (1993); see Brief for Pulsifer 18; Brief for United States 14.
Where things get more complicated is in fguring out what goes along or together with what—or otherwise said, what the “and” in Paragraph (f)(1) connects. As Pulsifer reads the paragraph, the “and” joins three features of a defendant‘s criminal history into a single disqualifying characteristic. The conjunction of Subparagraphs A, B, and C produces the thing he labels “the complete combo”; the question then becomes whether the defendant has or “does not have” that full package. Brief for Pulsifer 19;
The Government‘s view rests on a routine aspect of expression—that an introductory phrase (here, “does not have”) may apply to, or modify, several terms coming after it, one by one by one. Suppose a person says after visiting a bookstore, “I bought a novel, a memoir, and a travel guide.” That is just a more effcient way of saying “I bought a novel, bought a memoir, and bought a travel guide.” The verb in the sentence carries over—some grammarians use the term “distribut[es]”—to every item on the ensuing list. B. Garner, Dictionary of Legal Usage 639 (3d ed. 2011). That practice is pervasive, indeed inescapable, in every kind of speech and writing. Consider this, perhaps half-remembered line from childhood: “On Saturday he ate through one piece of chocolate cake, one ice-cream cone, one pickle, one slice of Swiss cheese, one slice of salami, one lollipop, one piece of cherry pie, one sausage, one cupcake, and one slice of watermelon.” E. Carle, The Very Hungry Caterpillar 15–16 (2018). The introductory words “ate through” apply independently and equivalently to each of the ten foodstuffs that follow. Or if that example seems too trifing, take a couple from the Constitution. Article III provides that “[t]he judicial Power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties.” § 2. That statement means—but says more concisely—that the judicial power extends to cases arising under the Constitution; extends to cases arising under federal law; and ex-
Pulsifer claims that verb phrases do not work the same way when “framed in the negative.” Reply Brief 2. One of his favorite examples is “don‘t drink and drive.” Brief for Pulsifer 16. That “doesn‘t mean,” he observes, “that you shouldn‘t drink and that you shouldn‘t drive, but only [means] that you shouldn‘t do both at the same time.” Id., at 18 (emphasis deleted). So too, he says, for “don‘t clean the bathroom with bleach and ammonia.” Id., at 12 (emphasis deleted). The prohibition does not go to bleach alone and to ammonia alone; instead, it goes only to the two in conjunction. To return to math notation, the statement is best understood as “don‘t clean with (bleach and ammonia),” rather than “don‘t clean with bleach and don‘t clean with am-
But for every negative statement Pulsifer offers up, another cuts the opposite way (suggesting, as we later discuss, that here grammar is not the primary determinant of meaning). Consider two sentences discussed in The Cambridge Grammar of the English Language. If someone says “I‘m not free on Saturday and Sunday,” the Grammar notes, he most likely means “I‘m not free on Saturday and I‘m not free on Sunday”; he is not saying that although he cannot go away for a full weekend, he can make plans on one of those days. See R. Huddleston & G. Pullum 1298–1299 (2002) (emphasis deleted). Similarly, if a person says, “I didn‘t like his mother and father,” he probably means “I didn‘t like his mother and I didn‘t like his father”—not that he didn‘t like the two in combination, but thought that either alone was fne. Ibid. (emphasis deleted).4 Or take an example raised in oral argument pertaining, like Paragraph (f)(1), to an eligibility requirement: A hospital tells you that it can perform a medical procedure only if you “don‘t eat, drink, and smoke for the preceding 12 hours.” See Tr. of Oral Arg. 6–8. Even Pulsifer‘s counsel agreed that he would not feel free to have a steak and martini so long as he abstained from tobacco. See ibid. The “don‘t” here, unlike in Pulsifer‘s examples, carries over to each action on the list (eating, drinking, and smoking alike)—not just to the three in tandem.
And if those examples of negatively framed statements, both Pulsifer‘s and ours, seem a tad conversational, consider
As used in this section, the term “offenses against the United States” does not include—
(1) a criminal violation of the Uniform Code of Military Justice (10 U. S. C. 801 et seq.);
(2) an offense against the laws of the District of Columbia; and
(3) an offense triable by an Indian tribal court or Court of Indian Offenses.
The “does not include” language at the top of course refers independently to crimes satisfying (1), crimes satisfying (2), and crimes satisfying (3)—not to whatever crimes manage to satisfy (1), (2), and (3) all at once. Or said otherwise, the statute means exactly what it would mean if Congress had stripped the phrase “does not include” from the prefatory line and repeated it three times in the subsequent list. Congress, we recognize, just opted to draft more concisely. And so too it could have made that choice in drafting Paragraph (f)(1)—with the “does not have” phrase referring to every item that follows. No grammatical principle precludes that understanding of what Congress wrote.
Pulsifer protests that using the word “or” (instead of “and”) would have better conveyed the Government‘s reading, but that claim also fails. His basic objection (echoed in the dissent, see post, at 170–171) is that Congress could have expressed its intent more clearly. “If the government is right” about Paragraph (f)(1)‘s meaning, Pulsifer asks, “why didn‘t Congress just use ‘or’?”; doing so would have shown “unequivocally” that a defendant must meet all three of the specifed conditions. Reply Brief 16; Tr. of Oral Arg. 10. But to begin with, we do not demand (or in truth expect) that Congress draft in the most translucent way possible.
In fact, we can see why a Congress wishing to express the Government‘s view might have chosen to use “and.” Suppose that before putting words to the page, Congress had
Consider, as a summary of all these points, Pulsifer‘s own main example, because it shows why Paragraph (f)(1)‘s grammatical structure cannot decide this case—and points to the kind of analysis needed instead. Pulsifer offers a college policy, with an “and” connecting three provisions:
All student-athletes are eligible for an academic scholarship, provided that the student during the previous semester did not—
(A) miss more than fve classes;
(B) fail to submit a paper in the semesterly, campuswide writing competition; and
(C) earn less than a 3.0 GPA.
Brief for Pulsifer 19 (emphasis deleted). In Pulsifer‘s view, the policy is clear: A student may retain his scholarship unless he funks “all three” of the conditions. Ibid. So a student, Pulsifer contends, is in the clear if he “submitted a paper in the writing competition and earned a 3.4 GPA . . . even though he missed seven classes.” Ibid. Which sounds reasonable enough. But how about this one: A student who misses only four classes, but fails to submit a competition
All student-athletes are eligible for an academic scholarship, provided that the student during the previous semester did not—
(A) fail a course;
(B) commit plagiarism; and
(C) get arrested.
A student would need a lot of confdence to argue that he remains scholarship-eligible when he (A) failed a course, and (B) committed plagiarism, but (C) managed to evade arrest. That reading—Pulsifer‘s reading—is grammatically possible. But so too is the opposite—that a student must meet all three conditions. And when we think about the content of the policy—what (A), (B), and (C) actually say—against the backdrop of all we know (or perchance all the college handbook tells us) about academic scholarships, we cannot read the revised hypothetical in Pulsifer‘s way.
The takeaway is this: Paragraph (f)(1) cannot be construed in the abstract, as if all a reader has to go on is the stripped-down phrase “the defendant does not have A, B, and C.” That might require the defendant not to have (A, B, and C)—i. e., the combination of the three. Or it might require the defendant not to have A, and not to have B, and not to have C—i. e., each of the three. Really, it all depends. (It is notable that even the dissent must in the end concede the point, noting that whether a speaker “intend[s] for a listener to distribute words implicitly” depends on the context. See post, at 168; supra, at 132, and n. 2). The way a reader assigns meaning to the phrase is to look at the substance of A, B, and C—the items on the list and the way they interact,
III
A
And indeed, that inquiry into text and context makes Paragraph (f)(1)‘s meaning clear. The paragraph creates an eligibility checklist. It specifes three necessary conditions for safety-valve relief—that the defendant not have more than four criminal-history points, not have a prior three-point offense, and not have a prior two-point violent offense. Reading the paragraph instead to set out a single condition—that the defendant not have the combination of the listed characteristics—would create two statutory diffculties. First, Subparagraph A would become superfuous—without any operative signifcance. That is because if a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C, he will always have more than four criminal-history points under Subparagraph A. Second, defendants’ eligibility for relief would not correspond to the seriousness of their criminal records. Instead, a defendant with numerous violent three-point offenses could get relief because he happens not to have a two-point offense. The content of Subparagraphs A, B, and C, especially as read
Begin with superfuity. Or actually with its absence—because there is none under the Government‘s reading. Each subparagraph does independent work, disqualifying defendants from relief even when the others would not. Subparagraph A disqualifes defendants who have more than four criminal-history points (excluding those from a one-point offense), even if they do not have a prior three-point offense or a prior two-point violent offense. So, for example, a defendant with three non-violent two-point offenses will be barred. Subparagraph B, in turn, disqualifes defendants who have any prior three-point offense, even if they do not have a prior two-point violent offense or more than four total points. And fnally, Subparagraph C disqualifes defendants who have a prior two-point violent offense, even if they do not have a three-point offense or more than four points. The paragraph thus excludes (A) various repeat offenders, along with anyone having even a single conviction that (B) resulted in a suffciently long prison sentence or (C) resulted in a shorter sentence but involved violence. Every part of the paragraph has a function.
But that is not so under Pulsifer‘s reading, as a bit of arithmetic reveals. Pulsifer‘s view, once again, is that Paragraph (f)(1) disqualifes only defendants with the combination of the characteristics in Subparagraphs A, B, and C—so more than four criminal-history points, a prior three-point offense, and a prior two-point violent one. But because 3 + 2 = 5, and because 5 is more than 4, a defendant with a three-point offense (Subparagraph B) and a two-point violent offense (Subparagraph C) will necessarily have more than four history points (Subparagraph A). So Subparagraph A becomes meaningless: It does no independent work. Remove it from the statute, and what is left will make the exact same people eligible (and ineligible) for relief.
To escape that quandary, Pulsifer contends that under the Guidelines a three-point offense and a two-point offense do not always total five criminal-history points. (The dissent reiterates Pulsifer‘s assertion. See post, at 175–177.) The argument begins with a point not in dispute: Some prior convictions, as noted earlier, add zero points to a defendant‘s criminal-history score. See supra, at 129. That is true if the conviction is quite old; if it was rendered in a military, tribal or foreign court; or if it merged into another conviction because, for example, the two arose from “the same charging instrument.”
But Pulsifer‘s argument craters because its key move is wrong: Contrary to his view, there is no such thing under the Guidelines as a three-point or two-point offense adding zero points. Under Subparagraphs B and C, the terms “3-point offense” and “2-point violent offense” are “as determined under the sentencing guidelines.”
Yet more, Pulsifer‘s effort founders on the Guidelines’ judgments, reflected in Paragraph (f)(1), about which prior offenses warrant enhanced punishment. Consider what Pulsifer‘s zero-to-three claim entails. Because an offense adding zero points can on his account satisfy Subparagraph B or C, it can help prevent a defendant from gaining safety-valve relief. But that result ill comports with the Guidelines. There are, after all, reasons why the Guidelines decline to assign points to certain offenses. The specifics vary, but each embodies a judgment that some types of prior convictions should not have the usual weight in determining a cur-
And beyond that problem lies a second, this one relating to the way Paragraph (f)(1) precludes safety-valve relief for defendants with serious criminal histories. The paragraph operates as a gatekeeper: It helps get some defendants into, and keeps other defendants out of, a world free of mandatory minimums. And the criteria for selection, evident on the paragraph‘s face, relate to just how bad a defendant‘s criminal record is. Pulsifer himself recognizes that fact: In describing Paragraph (f)(1), he notes that “subparagraph (A) targets recidivism“; that “subparagraph (B) targets serious offenses” leading to lengthy prison terms; and that “subparagraph (C) targets violent offenses” even though resulting in lesser sentences. Brief for Pulsifer 25; see id., at 44 (noting that each subparagraph addresses a “type[ ] of behavior suggestive of future dangerousness“). The paragraph thus focuses on the kinds of past criminal behavior that under the Guidelines trigger enhanced penalties. Over and over, the Guidelines presume that defendants with worse crimi-
Under the Government‘s reading, Paragraph (f)(1) performs that function without a hitch. When the defendant has committed multiple non-minor offenses, he cannot get relief (Subparagraph A). And so too when he has committed even a single offense punished with a lengthy prison sentence (Subparagraph B) or involving violence (Subparagraph C). Only a defendant with none of those markers—a defendant who can check off every one of the three “does not have” requirements—is eligible for relief. So the paragraph unerringly separates more serious prior offenders from less serious ones, allowing only the latter through the gate.
That does not happen under Pulsifer‘s construction. To the contrary, his reading would allow relief to defendants with more serious records while barring relief to defendants with less serious ones. Or said otherwise, the sorting accomplished by Pulsifer‘s reading does not match what Paragraph (f)(1) and the Guidelines call for. Consider two hypothetical defendants. One has five criminal-history points from a prior three-point offense and a prior two-point violent offense. The other has 15 criminal-history points from five prior three-point offenses, every last one of a violent nature, but . . . has no two-point violent offense. (All his crimes were too serious to wind up in the two-point category.) Which of the two defendants is the more serious prior offender? The latter of course: His record exhibits greater recidivism, lengthier sentences, and more violence. But under Pulsifer‘s view of Paragraph (f)(1), which of the two defendants is excluded from relief? The former alone. For want of a two-point offense, the latter remains eligible to
And contrary to Pulsifer‘s view, that problem cannot be solved by resort to a sentencing judge‘s discretion. Notably, Pulsifer does not argue that there is any rhyme or reason to making our serial three-point violent offender eligible for safety-valve relief. He says only that Congress “had no reason to be concerned” about that outcome because it knew “that a sentencing court would still have discretion to impose a proportionate sentence.” Brief for Pulsifer 25; see id., at 45; see also post, at 182–183 (Gorsuch, J., dissenting) (similarly relying on judges’ ability, even without mandatory minimums, to impose lengthy sentences). But that “trust in discretion” claim cannot here work. If Congress thought it could always rely on sentencing discretion, it would not have created a criminal-history requirement in the first instance. That requirement, by its terms, confines such discretion. More specifically, it allows discretion to operate only when a defendant‘s record does not reach a certain level of seriousness. On the Government‘s reading, the paragraph well performs that gatekeeping function, separating more serious from less serious criminal histories. On Pulsifer‘s reading, the paragraph does not: As just shown, it allows and denies
B
Pulsifer tries to tell a competing story (which the dissent mostly adopts, see post, at 162–163, 171–173). Even supposing the grammar of Paragraph (f)(1) is a wash, Pulsifer contends that statutory context supports his view of what that provision means by “and.” His argument invokes the “presumption of consistent usage and the meaningful-variation canon.” Brief for Pulsifer 22. Those are the terms often given to a generally useful—but still “defeasible“—interpretive principle: In a given statute, the same term usually has the same meaning and different terms usually have different meanings. A. Scalia & B. Garner, Reading Law 170–171 (2012). The principle is mostly applied to terms with some heft and distinctiveness, whose use drafters are likely to keep track of and standardize. See, e. g., IBP, Inc. v. Alvarez, 546 U. S. 21, 33–34 (2005) (construing the term “principal activity” in the same way when used in neighboring provisions); Wisconsin Central Ltd. v. United States, 585 U. S. 274, 279 (2018) (holding that “money remuneration” must mean something different from “all remuneration” when used in “companion” statutes (emphasis deleted)). Pulsifer breaks new ground in applying the principle to words as ubiquitous and (as shown above) sometimes context-dependent as “and” and “or.” See supra, at 132–148 and this page. He argues, more specifically, that another “and” plus an “or” in Section 3553(f) show that the “and” in Paragraph (f)(1) must be read his way. But even accepting that a court can sometimes demand harmonization of “and“s and “or“s, Pulsifer‘s argument fails.
Take the other “and” first. As noted earlier, the criminal-history requirement is only one of five conditions for safety-
The problem for Pulsifer is that the meaning of the “and” in Section 3553(f) does not advance his reading of Paragraph (f)(1). Everyone, including Pulsifer, agrees that the “and” in Section 3553(f) connects five requirements for safety-valve relief, all of which a defendant must meet. In Pulsifer‘s view, the Government has to read Paragraph (f)(1)‘s “and” differently to make each one of its subparagraphs disqualifying. See Brief for Pulsifer 21; Reply Brief 14–15. But that is just wrong. The “and” in Section 3553(f) works identically to the “and” in the Government‘s reading of Paragraph (f)(1). Section 3553(f)‘s “and” creates an eligibility checklist. A defendant fulfills that provision‘s requirements if the court finds 1, finds 2, finds 3, finds 4, and (finally) finds 5. So the “and” joins five individually necessary conditions for relief. Likewise, the “and” in the Government‘s construction of Paragraph (f)(1) creates an eligibility checklist. A defendant satisfies that paragraph‘s requirements if he does not have A, does not have B, and (finally) does not have C. So again, the “and” joins several individually necessary conditions for safety-valve relief. Everything is consistent, in meaning and operation alike. It is actually Pulsifer who introduces dissonance into the provision. As to the larger list, he acknowledges that a defendant cannot get relief without checking off 1, 2, 3, 4, and 5 individually. But as to the smaller list, Pulsifer changes the rule. Now a defendant need not satisfy A, B, and C individually. Instead, he can get relief so long as he does not have A, B, and C combined. In other words, in Pulsifer‘s world, Section 3553(f) is an eligibility checklist, but Paragraph (f)(1) is not.
Pulsifer‘s deployment of another paragraph‘s “or” fares no better. Section 3553(f)(4) conditions safety-valve relief on a finding that the “defendant was not an organizer, leader, manager, or supervisor of others in the offense.” See supra, at 128. Congress thus used an “or” to signify that being any one of those things is disqualifying. Invoking the meaningful-variation canon, Pulsifer argues that the different term “and” in Paragraph (f)(1) must mean the opposite: that only the combination of the listed things disqualifies a defendant. See Brief for Pulsifer 21–22. Recall that we have already rejected Pulsifer‘s unadorned view that the word “or” is needed to convey the Government‘s reading of Paragraph (f)(1). See supra, at 137–139. Pulsifer‘s additional reference to Paragraph (f)(4)‘s “or” does not strengthen his case. As we have shown throughout this opinion, conjunctions are versatile words, which can work differently depending on context. Here is yet another example. As another glance at the appendix will confirm, the relevant clause in Paragraph (f)(4) is markedly different in length and formatting from the material in Paragraph (f)(1), naturally leading to different choices respecting the use of conjunctions. And anyway, Congress drafted the current versions of the paragraphs at different times—Paragraph (f)(4) in 1994, Paragraph (f)(1) in 2018. See Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 1985; First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5221. It would hardly be surprising if 24 years later, Paragraph (f)(1)‘s drafters did not perfectly harmonize their conjunction usage with a dissimilar-looking nearby paragraph. There can be few better illustrations of the “defeasib[ility]” of the meaningful-variation canon. Scalia, Reading Law, at 171.
Finally, Pulsifer and the dissent make a misguided argument about legislative purpose. As noted earlier, Congress enacted the revised version of Paragraph (f)(1) as part of the First Step Act, a significant sentencing reform law. See supra, at 128–129. Pulsifer explains that the new provision was meant “to make safety-valve relief more widely available.”
IV
Yet Pulsifer (joined again by the dissent, see post, at 184–185) asserts we are not done. At the least, he claims, the meaning of the criminal-history requirement is uncertain. And because it is uncertain, he must win. The rule of lenity, he says, requires courts to read “ambiguous criminal statutes in favor of liberty.” Brief for Pulsifer 47.
The problem is that we do not view Paragraph (f)(1) as genuinely ambiguous.8 There are, to be sure, two grammatically permissible readings of the statute when viewed in the abstract. It may be read Pulsifer‘s way—as stating that a defendant can get safety-valve relief so long as he does not
In sum, Paragraph (f)(1)‘s criminal-history requirement sets out an eligibility checklist. A defendant is eligible for safety-valve relief only if he satisfies each of the paragraph‘s three conditions. He cannot have more than four criminal-history points. He cannot have a prior three-point offense. And he cannot have a prior two-point violent offense. Because Pulsifer has two prior three-point offenses totaling six points, he is not eligible. It makes no difference that he does not also have a prior two-point violent offense. Accordingly, we affirm the judgment of the Court of Appeals for the Eighth Circuit.
It is so ordered.
APPENDIX
§ 3553 . Imposition of a sentence
. . . . .
(f) LIMITATION ON APPLICABILITY OF STATUTORY MINIMUMS IN CERTAIN CASES.—Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (
- the defendant does not have—
- more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
- a prior 3-point offense, as determined under the sentencing guidelines; and
- a prior 2-point violent offense, as determined under the sentencing guidelines;
- 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;
- the offense did not result in death or serious bodily injury to any person;
- 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
- 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.
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
The First Step Act of 2018 may be “`the most significant criminal justice reform bill in a generation.‘” Brief for Sen. Richard J. Durbin et al. as Amici Curiae in Terry v. United States, O. T. 2020, No. 20–5904, p. 9. Through the 1980s and 1990s, Congress adopted an ever-increasing number of ever-longer mandatory minimum prison sentences. In part due to these policies, the federal prison population grew by more than 100% in less than a decade. In the First Step Act, Congress sought to recalibrate its approach. It did so by promising more individuals the chance to avoid one-size-fits-all mandatory minimums and receive instead sentences that account for their particular circumstances and crimes.
This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act. Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests. After the Act, all those tests remain, only the first is now less demanding. As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point violent offense. In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits—A, B, and C. Brief for United States in No. 19–50305 (CA9), p. 7 (Government CA9 Brief); id., at 10–11; accord, Brief for United States in No. 21–1609 (CA8), p. 11 (Government CA8 Brief). Despite its admission, however, the government urges us to adopt a different construction.
If this difference seems a small one, it is anything but. Adopting the government‘s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won‘t set aside to reach that result. Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering. Respectfully, I would not indulge any of these moves.
I
A
In approaching the dispute before us, some background helps. Before the 1980s, federal judges generally enjoyed broad discretion at sentencing. Often, they could impose punishments ranging from probation up to statutorily specified maximum prison terms. Mistretta v. United States, 488 U. S. 361, 363 (1989). In exercising that discretion, judges had to “consider every convicted person as an individual” and pick punishments that “fit the offender and not merely the crime.” Pepper v. United States, 562 U. S. 476, 487–488 (2011).
Today, many defendants still receive individualized sentences. In the mine run of federal cases, a court will start with sentencing guidelines the United States Sentencing Commission has prepared at Congress‘s direction. The guidelines help a court identify a range of presumptively reasonable sentences tailored to the defendant and his crime. See Rita v. United States, 551 U. S. 338, 347 (2007). That
In the 1980s and 1990s, Congress pursued a different approach for certain drug offenses. See Anti-Drug Abuse Act of 1986, 100 Stat. 3207–2 to 3207–4; Anti-Drug Abuse Act of 1988, 102 Stat. 4370, 4377–4378. It required courts to impose mandatory minimum prison terms based only on the kind and quantity of the drugs involved in the defendant‘s crime. A court “was required to send the offender to prison” for a set period of years “no matter how minor the offender‘s participation in the offense may have been, and no matter what mitigating circumstances might have been present.” J. Rakoff, Why the Innocent Plead Guilty and the Guilty Go Free 13 (2021). Under this regime, for example, a defendant distributing 5 grams of crack cocaine faced a 5-year mandatory prison term, and one with 50 grams faced a 10-year term. 100 Stat. 3207–2 to 3207–3. Meanwhile, a defendant found with powder cocaine confronted those same prison terms only if he distributed 100 times those amounts. Ibid.
In short order, the federal prison population exploded. In 1986, federal prisoners numbered 30,104, approximately 37.7% of whom were serving time for drug offenses. Dept. of Justice, Sourcebook of Criminal Justice Statistics 519 (31st
Calls for reform came quickly and grew with time. See, e. g., U. S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System iii (1991); id., App. G (collecting statements from the Judicial Conference and 12 circuits). Eventually, Congress responded to these calls in various ways. In one reform, for example, it prospectively reduced the crack-cocaine disparity from 100:1 to 18:1. See Fair Sentencing Act of 2010, 124 Stat. 2372. In another, it adopted
As originally enacted in 1994, the safety valve provided modest relief. It exempted defendants who could meet five statutory criteria from otherwise-applicable mandatory minimums, directing instead that they should receive individualized sentences. Ibid. (codified as amended at
B
In the First Step Act of 2018, Congress adopted an array of further reforms. Pub. L. 115–391, 132 Stat. 5194. Passed with overwhelming majorities in both chambers of Congress and with presidential support, the Act reduced the length of some mandatory minimums by 25%. See § 401, id., at 5220–5221. It narrowed the circumstances
The First Step Act also revised the safety valve‘s first provision. Where paragraph (f)(1) once barred a defendant with even a single criminal history point from receiving an individualized sentence, Congress now chose a different course. As amended, the full safety valve today instructs a court to afford an individualized sentence “if [it] 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 (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 . . . the Controlled Substances Act; and
“(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 . . . common scheme or plan . . . .” 18 U. S. C. § 3553(f) .
C
The question we face concerns how the amended safety valve works. Everyone agrees that a defendant must still clear five daunting statutory hurdles. But the parties disagree what the first entails after the First Step Act. Observing that the word “and” connects each of the subparagraphs (f)(1)(A), (B), and (C), Mark Pulsifer argues that the safety valve‘s first provision now operates to render ineligible one kind of defendant—a defendant who bears all three enumerated traits, A, B, and C. Because he does not have all three, Mr. Pulsifer submits, he is eligible for safety-valve relief as long as he can satisfy the law‘s four remaining provisions. Meanwhile, on the government‘s telling, paragraph (f)(1) renders three kinds of defendants ineligible for relief—any defendant who has trait A, B, or C. And because Mr. Pulsifer has at least one of those traits, the rest of the safety valve is irrelevant; paragraph (f)(1) alone renders him ineligible for relief.
Disputes about the amended safety valve‘s operation have simmered for years in the lower courts and yielded conflicting results.1 At least one thing, though, is clear: The dispute before us matters profoundly. According to a Sentencing Commission analysis based on 2021 data, about 33% of drug offenders were eligible for safety-valve relief under the law‘s old terms. See 88 Fed. Reg. 7186 (2023). Under Mr. Pulsif-
II
Unless some feature of the law suggests that one or another of its terms bears a specialized meaning, our duty is to interpret Congress‘s work as an ordinary reader would. See Niz-Chavez v. Garland, 593 U. S. 155, 163 (2021). At the heart of today‘s dispute lies no specialized term but perhaps the most ordinary of words: Everything turns on what work the word “and” performs in paragraph (f)(1), where a sentencing court is tasked with determining whether “the defendant does not have” three traits—A, B, “and” C.
A
In taking up the parties’ dispute, start with a few simple and uncontested observations. First, as the Court agrees, “and” is “a conjunction—a word whose function is to connect specified items.” Ante, at 133; see J. Opdycke, Harper‘s English Grammar 200 (rev. ed. 1966).
Second, and more specifically, “and” is an “additive” conjunction, one often indicating that the words it connects should be added together. Id., at 200; The Chicago Manual of Style § 5.183, p. 191 (15th ed. 2003). As the Court explains, when “and” performs that role, it means “[t]ogether with,” “along with,” “in addition to,” or “as well as.” American Heritage Dictionary 66 (5th ed. 2018); see ante, at 133.
Third, in paragraph (f)(1) “and” connects a list in a negative conditional statement (“if . . . the defendant does not have“). Negative conditional “if . . . not” statements often function like the word “unless.” See R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language § 14.3, p. 755 (2002). Consider the mother who tells her
Now apply those observations to paragraph (f)(1). Given the meaning of “and,” an ordinary reader would naturally understand that a defendant is eligible for individualized sentencing if he “does not have” trait A, trait B, together with trait C. Add to the mix what we know about the interchangeability of “if . . . not” and “unless“: A defendant may receive guidelines sentencing unless he has trait A, trait B, together with trait C. Put the points together, and the statute indicates that a court may issue an individualized sentence unless the defendant has all three traits listed in
B
What the language of paragraph (f)(1) suggests, surrounding context confirms. When Congress uses different terms in a statute, we normally presume it does so to convey different meanings. Southwest Airlines Co. v. Saxon, 596 U. S. 450, 457–458 (2022). We sometimes call this presumption the “meaningful-variation canon.” Id., at 457. Here, we see just such a meaningful variation. When Congress sought a single word to indicate that one trait among many is sufficient to disqualify an individual from safety-valve relief, it chose an obvious solution: not the conjunctive “and,” but the disjunctive “or.”
In fact, Congress used “or” this way no fewer than three times. Paragraph (f)(2) specifies that, for a defendant to be eligible for individualized sentencing, a court must find that “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.” (Emphasis added.) Paragraph (f)(3) premises eligibility on a finding that a defendant‘s “offense did not result
Wait, the government says. What if paragraph (f)(1) is read another way? The government observes that the word “not” at the start of the list in paragraph (f)(1) can be “distributed” to each item in the list. On this view, “does not have (A, B, and C)” means “does not have A, and does not have B, and does not have C.” And if that‘s the case, the government continues, a defendant is disqualified from relief if he has any of the listed traits.
That is a possible way of reading the statute, the government says, but is it the most natural one? Consider again the mother who says: “If you do not have homework, chores, and laundry, you can go out.” Does she mean that the child must have none of those things to go out? Or does she mean that the child can go out unless he has all of those things left to do? The government thinks the former; Mr. Pulsifer the latter. But in common parlance, when “and” is used in a list of this sort, we usually do not “distribute” the negative to each item. If a person says, “I don‘t have a car, a bike, and a scooter,” they usually mean they don‘t have all three, not that they don‘t have any of them. If they meant the latter, they would more likely say, “I don‘t have a car, a bike, or a scooter.” Just as Congress did in paragraphs (f)(2), (f)(3), and (f)(4).
Still, the government persists. It points to yet another contextual clue. It notes that “and” is used in Section 3553(f) to connect paragraphs (1) through (5). Everyone agrees that
Actually, Mr. Pulsifer‘s reading does just that. Under his view, a defendant satisfies paragraph (1) if he “does not have” the combination of (A, B, and C). To be eligible for relief, he must satisfy that condition, “and” he must satisfy (2), (3), (4), and (5). In each instance, “and” is performing exactly the same additive function. The difference is simply in what is being added. In Section 3553(f), it is five separate requirements. In paragraph (f)(1), it is three separate traits. Mr. Pulsifer‘s reading is thus entirely consistent across the statute.
The government‘s reading, on the other hand, requires us to assume that Congress was being extraordinarily sloppy. If Congress meant what the government says it meant—that a defendant is disqualified if he has any of traits A, B, or C—it could have easily said so. It did exactly that in three other paragraphs of the same section. Why would it suddenly switch from “or” to “and” in paragraph (f)(1) if it intended them to mean the same thing? The government has no good answer. Its reading turns “and” into “or,” and ignores the meaningful variation in Congress‘s own language.
Respectfully, we should not be in the business of rewriting statutes to help the government. Congress chose its words, and we should stick to them. If the words of paragraph (f)(1) were truly ambiguous, we would be required to resolve that ambiguity in favor of the defendant under the rule of lenity. But here, the most natural reading of the text, confirmed by its context and Congress‘s own usage elsewhere, supports Mr. Pulsifer. A defendant remains eligible for safety-valve relief unless he possesses all three of the traits listed in paragraph (f)(1). Because Mr. Pulsifer does not, he should have been eligible for an individualized sentence. I dissent.
The fact that Congress repeatedly used “or” when it wanted relief to turn on a single trait among many suggests that the “and” in paragraph (f)(1) performs different work. Even the government once acknowledged as much, conceding below that the “and” in paragraph (f)(1) is “most natural[ly]” read as requiring a sentencing court to find that a defendant possesses all three listed traits before holding him ineligible for relief. Government CA9 Brief 7; id., at 10–11; accord, e.g., Government CA8 Brief 11. Nor is the government alone in this unsurprising understanding: A study involving ordinary Americans found that the largest share of participants understood a sentence tracking paragraph (f)(1)‘s structure to trigger ineligibility only if all three conditions are satisfied. See Brief for Thomas R. Lee et al. as Amici Curiae 15, 18.
III
A
The government disputes none of this evidence about the law‘s ordinary meaning. Instead, it begins with a theory. Maybe, the government says, there is another “permissible” way to read paragraph (f)(1). Ante, at 133; Brief for United States 18, 37. Maybe Congress implicitly wanted a reader to “distribut[e]” the “verb phrase” “does not have” among each subparagraph. Ante, at 134–136 (internal quotation marks omitted); Brief for United States 14–18. Maybe, then, we should effectively read the statute to work this way, with deleted words stricken and new ones added in bold:
(1) the defendant does not have —
(A) does not have more than 1 criminal history point . . . ;
(B) does not have a prior 3-point offense . . . ; and
(C) does not have a prior 2-point violent offense.
Yes, the government‘s implicit distribution theory requires a reader to delete words before the em dash. Yes, it requires a reader to reinsert them in three different places where they do not appear. But maybe, the government suggests, Congress implicitly intended for a reader to do all that. Even though what it wrote is susceptible to a far more natural construction requiring none of these gymnastics.
That is not how statutory interpretation usually works. Statutes aren‘t games or puzzles but “instruments of a practical nature, founded on the common business of human life, . . . and fitted for common understandings.” 1 J. Story, Commentaries on the Constitution of the United States § 451, p. 437 (1833). For that reason, we usually presume that Congress “employed words in their natural sense, and . . . intended what [it] said.” Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). And once we have identified the most natural sense of the law‘s terms, as we have here, our interpretive task is usually at an end. See, e.g., Barnhart v. Sigmon Coal Co., 534 U. S. 438, 461–462 (2002).
The government‘s implicit distribution theory is so far from the most natural reading of the law that its many and able lawyers didn‘t even stumble on it until late in the game. In litigation below, the government started by arguing primarily that paragraph (f)(1) “must be read in the disjunctive”—a fancy way of saying that “and” means “or.” Government CA8 Brief 4; see United States v. Garcon, 54 F. 4th 1274, 1280 (CA11 2022) (en banc). In early cases, that was the government‘s only argument. See, e. g., Sentencing Tr. in No. 3:19–cr–207 (ED Tenn.), ECF Doc. 176, p. 4 (“I think the Department of Justice‘s position as well as our position here today is . . . that it should be read disjunctively”); see also Tr. of Oral Arg. 103. Only after a resounding loss on that argument, see United States v. Lopez, 998 F. 3d 431, 435–443 (CA9 2021), did the government shift to its implicit
The government‘s implicit distribution theory may be a “convenient litigating position,” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 213 (1988), but it does not come close to respecting the most natural construction of the law. It may have the benefit of leaving “and” alone, but it comes at the cost of rearranging so much else in the statute. One way or another, the government cannot get where it wishes to go without tinkering with the law. And to know that much should be enough to bring this case to a close: “Crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language.” Dubin v. United States, 599 U. S. 110, 129–130 (2023) (internal quotation marks and alteration omitted).
B
How does the government reply? It insists that contextual clues support its implicit distribution theory. These clues are so compelling, it says, any other construction of the law isn‘t “plausible” or “possible.” Ante, at 142, 153; Brief for United States 18–19. It is a bold claim, not only because the government overlooks all the evidence of the statute‘s meaning outlined above, but also because it overlooks one piece of contextual evidence after another weighing against its implicit distribution theory.
Start with this one: The statute before us stands far afield from classic cases that invite questions about implied distribution. In everyday speech, the government stresses, a listener may appreciate the need to “distribut[e]” what this Court has called “several antecedents” to “several consequents.” Encino Motorcars, LLC v. Navarro, 584 U. S. 79, 87 (2018) (quoting 2A N. Singer & S. Singer, Sutherland Statutes and Statutory Construction § 47:26, p. 448 (rev. 7th ed. 2014) (internal quotation marks omitted)). In its brief be
If context suggests anything, however, it is that this observation has little to offer when it comes to the statute before us. The First Step Act does not contain several “antecedents” (many caps, for example) that might or might not distribute among several “consequents” (say, colors). Instead, paragraph (f)(1) speaks of a single person—“the defendant” presently before the sentencing court—who must not have three specified traits (A, B, and C). And that “singular” construction “tends to avoid the ambiguity” about distribution that a “plural” construction can invite. M. Kirk, Legal Drafting: The Ambiguity of “And” and “Or,” 2 Tex. Tech. L. Rev. 235, 239–240 (1971); see also Huddleston, Cambridge Grammar § 1.3.1, at 1280–1281.
Drafting experts illustrate the point with this phrase: “charitable and educational institutions.” R. Dickerson, The Fundamentals of Legal Drafting § 6.2, pp. 109–110 (2d ed. 1986); Kirk, 2 Tex. Tech. L. Rev., at 239–241. The phrase is ambiguous. The multiple “institutions” might distribute across the multiple listed traits to describe both “charitable institutions and educational institutions.” Dickerson, Fundamentals of Legal Drafting § 6.2, at 110; Kirk, 2 Tex. Tech. L. Rev., at 240. Or the term “institutions” might not distribute, so the phrase describes only institutions that are both charitable and educational. Id., at 240–241. But if there is just a single “institution,” any ambiguity dissipates:
This contextual clue poses the government with a serious problem. When Congress wrote paragraph (f)(1), it employed a singular construction that tends to avoid the ambiguity about distribution that plural constructions invite. The statute before us thus bears no resemblance to the government‘s lead illustration involving multiple caps and colors. Nor does it bear any resemblance to the government‘s various illustrations from statutory and constitutional law involving multiple “offenses” that fall into multiple classes, see ante, at 137; Brief for United States 17–18 (discussing
Sensing the government‘s difficulty, the Court struggles for an example of its own involving a singular person or thing that does generate an ambiguity about distribution. Eventually, it lands on Eric Carle‘s story about a caterpillar who “ ‘ate through’ ” (among so many other things) “ ‘one sausage, one cupcake, and one slice of watermelon.’ ” Ante, at 134; see also ante, at 135, n. 3. Mission accomplished: One child might implicitly distribute the phrase “ate through” to each foodstuff, while another might read the list without implicit distribution to mean the caterpillar ate through a “combination” that includes them all. Ante, at 135.
C
Here‘s another problem with the government‘s theory: If in some contexts a speaker might intend for a listener to distribute words implicitly, the context before us counsels against attributing any such intention to Congress. It does because a careful look at the safety-valve statute reveals that, when Congress wanted to distribute a phrase in this law, it did not leave the matter to implication. It did not depend on the reader‘s imagination. Instead, Congress distributed phrases expressly.
Twice, in fact. In paragraph (f)(4), Congress took the trouble to distribute expressly the phrase “was not,” permitting relief only if “the defendant was not an organizer, leader, manager, or supervisor of others . . . and was not engaged in a continuing criminal enterprise.” (Emphasis added.) Likewise, in paragraph (f)(1) itself Congress expressly distributed the phrase “as determined under the sentencing guidelines” three times, in each of subparagraphs (A), (B), and (C). All the contextual evidence before us thus
Once more, the government‘s examples only serve to illustrate its problem. It imagines a speaker who says, “ ‘I didn‘t like his mother and father.’ ” Ante, at 136; Brief for United States 39. The government suggests that a listener would “probably” understand the sentence as implicitly distributing the phrase “I didn‘t like his,” so that it really means, “I didn‘t like his mother and I didn‘t like his father.” Ante, at 136 (emphasis added); Brief for United States 39. But as the hedge (“probably”) indicates, an ambiguity lurks here. The sentence could also be understood without any distribution to convey the idea that “I didn‘t like his mother and father” as a couple, even if I liked each individually well enough. See Huddleston, Cambridge Grammar § 2.2.2, at 1298–1299.3 Only context, the government concedes, can clarify which meaning is more apt. See ante, at 141; Brief for United States 16. Yet somehow, the government neglects that same message when it comes to the statute before us—where context reveals that Congress did not leave questions of distribution to implication but resolved them expressly.
D
Context exposes yet another flaw in the government‘s implicit distribution theory. If, as the government imagines,
After disregarding others, the government at least acknowledges this particular complication for its theory. It responds this way: Even substituting “or” for “and,” it says, would not “delive[r] us from interpretive controversy.” Ante, at 138; Brief for United States 26. It would not because replacing “and” with “or” in paragraph (f)(1) still would not answer the question whether a single trait alone is enough to render a defendant ineligible for relief. Ante, at 138; Brief for United States 26. As evidence of the malleability of the word “or” in some contexts, the Court cooks up various illustrations involving a hypothetical chef. Ante, at 138, n. 5.
It is a remarkable response. At argument, the government acknowledged that “or” “might have been a clearer way to express” that a single trait is disqualifying in paragraph (f)(1). Tr. of Oral Arg. 98. Below, the government initially pushed for treating “and” as meaning “or” precisely because it knew that doing so would mean that a defendant is ineligible for relief if he has even one of its listed traits. See id., at 101; Government CA9 Brief 11–13; Government CA8 Brief 7–8. And everyone, the Court included, concedes that Congress‘s use of the word “or” in paragraph (f)(4) means that a defendant meeting any one of several criteria is disqualified from relief. Ante, at 151. Simply put, “we wouldn‘t be sitting here if Congress had used the word ‘or’ ”
Finding the government on its back foot, the Court again comes to its defense, this time by trying to change the rules of play. Perhaps, the Court speculates, Congress‘s choice of “and” rather than “or” in paragraph (f)(1) was the product of careless drafting. See ante, at 137–138. Perhaps, too, those two conjunctions are “versatile” words not entitled to the respect we usually pay Congress‘s variations in usage—a respect, the Court suggests, that is due only “to terms with some heft and distinctiveness, whose use drafters are likely to keep track of and standardize.” Ante, at 149, 151.
Consider how far we have now retreated. Lower courts rejected the government‘s and-means-or argument. In response, the government introduced its implicit distribution theory. Before us, the government stresses that its new theory does not depend on “transform[ing]” “and” into “or.” Brief for United States 42; see also id., at 15, 25. At first, the Court seems to proceed on the same premise. See ante, at 133–134. But now it reverses course. Resuscitating an argu
This argument was a loser below and it should be here. When Congress employs “differing language in . . . two subsections,” we start from a presumption that it meant to convey a difference in meaning, not a presumption that it made “a simple mistake in draftsmanship.” Russello v. United States, 464 U. S. 16, 23 (1983). Never, to my knowledge, has this Court suggested that we may turn our back on this approach when conjunctions or other putatively “indistinctive” words are in play. Nor have we deployed that approach for “hefty” words alone—as if we were picking paper towels instead of interpreting statutes. To the contrary, our cases begin (and often end) with the presumption that Congress is careful in all its word choices and afford variations between terms like “and” and “or” the same respect due others. See, e.g., United States v. Palomar-Santiago, 593 U. S. 321, 326 (2021) (reversing the lower court for failing to give effect to a statute‘s use of “the conjunctive ‘and’ ”); Encino Motorcars, 584 U. S., at 87 (resting a reading of the relevant statute on “the ordinary, disjunctive meaning of ‘or’ ”); Loughrin v. United States, 573 U. S. 351, 357 (2014) (rejecting an argument that would “disregard what ‘or’ customarily means”); Reiter v. Sonotone Corp., 442 U. S. 330, 338–339 (1979) (similar); Rumsfeld v. Padilla, 542 U. S. 426, 434 (2004) (giving weight to the federal habeas statute‘s “consistent use of the definite article”).5
Nor could the premise latent in the Court‘s argument be further from the truth. The difference between words like “and” and “or” often cannot be easily dismissed as meaning
IV
So far, things look bleak for the government. Mr. Pulsifer offers a perfectly natural reading of the law. In response, the government offers a theory that it says rises or falls based on context. See ante, at 140–141; Brief for United States 11, 16. Yet, as it turns out, not one but three contextual clues array against its theory.
A
Without question, the canon against superfluity can be a useful tool when seeking the meaning of a statute. It rests on the same principle as the canon of meaningful variation: the presumption that Congress is a careful drafter and each word it chooses “is there for a reason.” Advocate Health Care Network v. Stapleton, 581 U. S. 468, 477 (2017). But that fact also makes the government‘s choice to rest its case on the superfluity canon a curious one. As we have seen, the government‘s implicit distribution theory depends on the assumption that Congress was not a careful drafter. It requires us to assume Congress left a distribution implicit in one section of paragraph (f)(1), even as it made others express elsewhere in paragraphs (f)(1) and (f)(4). It requires us to assume Congress meant for “and” in paragraph (f)(1) to do the same work as “or” in paragraphs (f)(2)–(f)(4). Sometimes, it seems, we are supposed to assume Congress was sloppy, other times careful. The only common thread seems to be what benefits the government in the moment.
Even putting that small irony aside, the government has a bigger problem: Mr. Pulsifer‘s reading leaves no provision in this statute superfluous. As the government sees it, a defendant who has both the prior 3-point offense required by subparagraph (B), and the 2-point violent offense required by subparagraph (C), will necessarily have more than the 4 criminal history points required by subparagraph (A). Because of this, the government submits, subparagraph (A) has no work to perform on Mr. Pulsifer‘s reading: “Remove it
It‘s a nice argument, but it rests on a faulty premise. As it happens, a defendant who has a 3-point offense under subparagraph (B) and a 2-point violent offense under subparagraph (C) often will not have “more than 4 criminal history points . . . under the sentencing guidelines” for purposes of subparagraph (A). And in cases like that, subparagraph (A) performs vital work under Mr. Pulsifer‘s reading of the law by ensuring that the defendant remains eligible for relief. There is simply no surplus here for the government‘s implicit distribution theory to cure.
To appreciate why this is so, consider the sentencing guidelines Congress cross-referenced in subparagraphs (A) through (C). They set forth a two-step process for calculating a defendant‘s criminal history. At the first step, discussed in § 4A1.1 of the guidelines, a judge assigns points to the defendant‘s prior offenses. Usually, the points correspond to the length of the defendant‘s previous sentences. So, for example, three points normally attach to an offense carrying a sentence longer than 13 months, two points to an offense with a sentence shorter than that but at least 60 days long, and one point to any other sentence.
At the second step, described in § 4A1.2 of the guidelines, a judge then computes the defendant‘s criminal history. But during this process, a judge doesn‘t just tote up all the points assigned to each offense. Under a variety of circumstances, the guidelines instruct a judge not to count points assigned to one offense or another. Points associated with hitchhiking, public intoxication, and fish and game offenses, for example, “are never counted.” § 4A1.2(c)(2). Nor are points as
Now return to subparagraph (A). It provides that the defendant must not have “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines.”
To know that is to know no superfluity problem exists—and thus no need to resort to the government‘s implicit distribution theory to solve it. On Mr. Pulsifer‘s reading of the law, a court applying subparagraph (A) will consult the sentencing guidelines’ methodology for scoring criminal history points set forth in § 4A1.2. In doing so, the court may find that, while the defendant has a prior 3-point offense and a prior 2-point violent offense for purposes of subparagraphs (B) and (C), one or another is too old or suffers from some other flaw so that he does not have more than four criminal history points. In all these cases, subparagraph (A) does significant work by making clear that, despite having a prior 3-point offense and a prior 2-point violent offense, the defendant remains eligible for relief. See Garcon, 54 F. 4th, at 1281–1282; Pace, 48 F. 4th, at 763 (opinion of Wood, J.).
B
The government does not contest the central observation that defeats its superfluity argument. It admits that certain past offenses “ad[d] zero points to [a defendant‘s] criminal-history score.” Brief for United States 32, n. 2; ante, at 143. So what exactly is the problem here?
To complain about a superfluity problem, it turns out the government must create one. It does so this way. As written, subparagraphs (B) and (C) require a sentencing court
Put plainly, for the government‘s superfluity argument to gain any traction, we must read still more words into the First Step Act, construing it now this way:
(1) the defendant does not have —
(A) does not have more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) does not have a prior 3-point offense that scores 3 criminal history points, as determined under the sentencing guidelines; and
(C) does not have a prior 2-point violent offense that scores 2 criminal history points, as determined under the sentencing guidelines.
It is one more remarkable request. Last I heard, the canon against assuming Congress has adopted superfluous words is not a license for judges to create a superfluity by inserting new words into a law. Let alone do so simply to
V
At this stage, the government withdraws to its final redoubt: a policy argument. In the government‘s view, the only “function” Congress gave paragraph (f)(1) was the task of separating “more from less serious prior offenders.” Ante, at 147–148; Brief for United States 21. Affording the statute‘s terms their ordinary meaning, the government asserts, would not allow the law to perform that “purpose” adequately. Id., at 20. By contrast, its implicit distribution theory would enable the law to fulfill its intended “role” “unerringly.” Ante, at 147, 148, n. 7; Brief for United States 21.
If this policy argument sounds familiar, it is because we have time and again rejected ones just like it. We do not presume that a law performs only one “function” or “role,” but recognize that almost every piece of legislation seeks to serve many competing purposes. See Luna Perez v. Sturgis Public Schools, 598 U. S. 142, 150 (2023); Barnhart, 534 U. S., at 461; Chicago v. Environmental Defense Fund, 511 U. S. 328, 338, 339 (1994). We do not suppose that a law pursues any of those competing purposes to its logical end, acknowledging instead that almost every law is the product of compromise. Luna Perez, 598 U. S., at 150. And we do not displace ordinary statutory terms with judicial “speculation as to Congress[‘s] intent,” Magwood v. Patterson, 561 U. S. 320, 334 (2010), because the American people have consented to be governed by the written laws their elected representatives adopt, not by the conjecture of others, see United States v. Bass, 404 U. S. 336, 348 (1971). For all these reasons and more, “it is quite mistaken to assume,” as the government does, “that whatever might appear to further the statute‘s primary objective must be the law.” Henson v. Santander Consumer USA Inc., 582 U. S. 79, 89 (2017) (internal quotation marks and alterations omitted).
Perhaps recalling our frequent admonition that policy talk cannot overcome plain text, the government tries a bit of rebranding. Although it refers occasionally to the First Step Act‘s “purpose,” Brief for United States 20–21, 34, 48, for the most part it frames its argument in terms of rationality. When we measure the competing interpretations before us against how well they perform the statute‘s only job, the government insists, we will find that the law‘s ordinary meaning invites “arbitrar[y]” results and “nonsensical” implications. Id., at 22, 34, 36, 48. The Court buys into this thinly disguised policy appeal, see ante, at 146–148, and n. 7, even as it forcefully (and without a trace of irony) faults Mr. Pulsifer for appealing to statutory “purpose,” ante, at 151. New framing or old, however, we have no business entertaining the government‘s ramshackle argument.
If anything, the government‘s attempt at rebranding only makes matters worse for it. When a statute produces a truly irrational result, we have a doctrine to deal with the dilemma: absurdity. In narrow circumstances, a simple and “eas[ily]” fixed statutory error that “no reasonable person could intend” may be amenable to judicial correction under this Court‘s traditional absurdity doctrine. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 234, 237 (2012); Story, Commentaries § 427, at 411. It is a highly demanding doctrine—deliberately so, for judges have no license to rewrite a law‘s terms just because they happen to think different ones more sensible. And, tellingly, no one thinks this law produces anything like an absurd result that might call for a judicial remedy. In fact, the government affirmatively disavows any reliance on absurdity doctrine. See Brief for United States 36. Instead, it only gestures vaguely in the direction of “nonsensical” results and asks us to run with the idea. As if we could tinker
There is a reason why the government does not attempt an argument actually grounded on absurdity doctrine. Its core complaint is that the natural reading of the law does not, with sufficient precision, separate “more from less serious prior offenders.” Ante, at 148; Brief for United States 21. But, of necessity, Congress often deploys “standardized formula[s]” or checklists, like the one found in paragraph (f)(1), that “are by their nature over- and under-inclusive.” Ransom v. FIA Card Services, N. A., 562 U. S. 61, 78 (2011). And because Congress may rationally prefer these approaches for various reasons, including their ease of administration, this Court has long held that we will not second-guess them merely because they may produce some “oddit[ies]” or “anomalies.” Id.; see Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (“Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice”).8
If, as the government supposes, a seemingly anomalous result alone could unsettle a statute, it would face its own troubles, too. Under its implicit distribution theory, an individual who previously committed a nonviolent offense and received a sentence longer than 13 months (i. e., a 3-point offense) is categorically ineligible for relief. Meanwhile, an individual who committed the same crime but received a sentence equal to or one day less than 13 months (i. e., a 2-point
Return, then, to our actual absurdity doctrine and consider the government‘s argument in its light. The government worries that respecting paragraph (f)(1) as written would treat “more serious” offenders too leniently. But in doing so, the government ignores what follows. A defendant who satisfies paragraph (f)(1) must still go on to satisfy paragraphs (f)(2)–(f)(5). And those provisions collectively operate to deny relief to virtually anyone whose current offense involves any trace of violence.
Even if a “more serious” offender could somehow thread his way through all those needles, too, another would await. The safety valve instructs a sentencing court to fashion a sentence “pursuant to [the] guidelines.”
In a final effort to bolster the government‘s case, the Court professes an entirely different concern of its own. It claims to worry that the natural reading of the law would sometimes be too harsh in operation. Holding a defendant ineligible for safety-valve relief based on offenses that score “zero points,” we are told, would be “out-of-sync” with the law‘s purpose. Ante, at 146. But there is nothing absurd here either. Subparagraph (A) provides that defendants are eligible for relief as long as their past convictions do not yield more than four criminal history points—a calculation that, as we have seen, does not include points associated with old crimes and certain other offenses. Subparagraphs (B) and (C) provide that other defendants with more than four criminal history points are eligible for relief too as long as they don‘t have anywhere in their past a serious (3-point) offense and a weighty (2-point) violent offense—even if those offenses are (say) too old to contribute to their criminal history scores. So whatever unfairness the Court may perceive in one part of the safety valve (here, subparagraphs (B) and (C)) is diminished when considered in light of another (here, subparagraph (A)). Some might prefer a different arrangement, but the one Congress ordained is hardly absurd.
VI
As I see it, the government hasn‘t come close to supplying a lawful basis for departing from the law‘s ordinary meaning. Suppose, though, at the end of this long march through its inventive theories you remain unsure. Suppose you are left with a reasonable doubt about whether Mr. Pulsifer or the government has the better reading of the law. In circumstances like that, another rule of construction supplies an answer. It is lenity.
The rule of lenity “is perhaps not much less old than construction itself.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.); see Wooden v. United States, 595 U. S. 360, 388 (2022) (GORSUCH, J., concurring in judgment)
This rule enforces weighty constitutional values. Courts construe ambiguous penal laws with lenity because a free nation operates against a background presumption of individual liberty. See Wooden, 595 U. S., at 391–392 (opinion of GORSUCH, J.). We resolve doubts about a criminal law‘s reach in favor of lenity, too, because in our federal government only the people‘s elected representatives, not their judges, are vested with the power to “define a crime, and ordain its punishment.” Wiltberger, 5 Wheat., at 95; accord, Crandon v. United States, 494 U. S. 152, 158 (1990); Wooden, 595 U. S., at 391–392 (opinion of GORSUCH, J.).
Lenity protects vital due process interests, as well, by ensuring individuals fair notice of the consequences of their actions. United States v. Lanier, 520 U. S. 259, 266 (1997); see McBoyle v. United States, 283 U. S. 25, 27 (1931); Wooden, 595 U. S., at 389–391 (opinion of GORSUCH, J.). And lenity performs still further work, guarding against the possibility that judges might condemn unpopular individuals to punishment on the strength of their own views about common sense, good public policy, or “no more than a guess as to what Congress intended.” Ladner v. United States, 358 U. S. 169, 178 (1958).
So suppose you thought a reasonable doubt remained about how best to construe the First Step Act. In those circumstances, the answer cannot be to adopt an interpretation that restricts safety-valve relief to thousands more individuals. The only permissible answer is one that favors liberty.
VII
Today, the Court does not hedge its doubts in favor of liberty. Instead, it endorses the government‘s implicit distri
It is a regrettable choice that requires us to abandon one principle of statutory interpretation after another. We must read words into the law; we must delete others. We must ignore Congress‘s use of a construction that tends to avoid, not invite, questions about implicit distribution. We must dismiss Congress‘s variations in usage as sloppy mistakes. Never mind that Congress distributed phrases expressly when it wanted them to repeat in the safety valve. Never mind that Congress used “or” when it sought an efficient way to hinge eligibility for relief based on a single characteristic. We must then read even more words yet into the law to manufacture a superfluity problem that does not exist. We must elevate unexpressed congressional purposes over statutory text. Finally, rather than resolve any reasonable doubt about statutory meaning in favor of the individual, we must prefer a more punitive theory the government only recently engineered.
Today, the Court indulges each of these moves. All to what end? To deny some individuals a chance—just a chance—at relief from mandatory minimums and a sentence that fits them and their circumstances. It is a chance Congress promised in the First Step Act, and it is a promise this Court should have honored. Respectfully, I dissent.
The attached opinion has been revised to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
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