MARK E. PULSIFER, PETITIONER v. UNITED STATES
No. 22-340
SUPREME COURT OF THE UNITED STATES
March 15, 2024
601 U. S. ____ (2024)
CERTIORAI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
(Slip Opinion)
OCTOBER TERM, 2023
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PULSIFER v. UNITED STATES
CERTIORAI
No. 22-340. Argued October 2, 2023—Decided March 15, 2024
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 five criteria. Among those is the requirement, set out in Paragraph (f)(1), that the sentencing court find that—
(1) 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 disqualified him under Subparagraph B and the six total points disqualified him under Subparagraph A. But Pulsifer claimed he remained eligible. He pointed out that his criminal record lacked a two-point violent offense, as specified 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 affirmed.
Held: A defendant facing a mandatory minimum sentence is eligible for safety-valve relief under
(a) 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 characteristic; 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 satisfied to gain safety-valve relief. In other words, the court must find 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 fit with other pertinent law. Pp. 6-15.
(b) 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 specifies 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 difficulties that the Government‘s reading does not. Pp. 15-23.
(1) Pulsifer‘s reading would render Subparagraph A superfluous 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 superfluity, 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
(2) 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 accord- ingly. 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 first instance. Instead, it specified 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. 20-23.
(c) 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. P. 26.
(d) 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. 27-28.
39 F. 4th 1018, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 22-340
MARK E. PULSIFER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI
[March 15, 2024]
JUSTICE KAGAN delivered the opinion of the Court.
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 the combination of A, B, and C. Or put conversely, he fails to meet the requirement (and cannot get relief) only when he has all three. Today, we agree with the Government‘s view of the criminal-history provision.
I
Congress sometimes establishes mandatory minimum penalties for crimes, including drug offenses. Those provisions put a lower limit on a court‘s sentencing discretion, reflecting Congress‘s judgment that specified conduct demands no less than a specified 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
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.
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 17-20. 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) §4A1.2(e)(3), (h). But putting such exceptions aside, convictions resulting in longer prison sentences add more points to a defendant‘s total. As previewed above, the Guidelines award one point for minor offenses—specifically, for those resulting in sentences of less than 60 days. In the new Paragraph (f)(1), thоse minor sentences do not matter at all: Because of the “excluding” phrase, they cannot, either alone or in combination, prevent a defendant from gaining safety-valve relief. But longer sentences, generating more points, fall within the paragraph‘s notice. A prison sentence of between 60 days and 13 months earns two points under the Guidelines. See USSG §4A1.1(b). So a conviction punished with that sentence will count, for purposes of the paragraph, as a “prior 2-point offense,” assuming it is also “violent” (as defined in a nearby provision).
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
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” specified 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 affirmed. 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 superfluous“—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.
We granted certiorari, 598 U. S. ____ (2023), because the Courts of Appeals have split over how to read the safety-valve provision‘s criminal-history requirement.1 Today, we adopt the Government‘s view, and so affirm the decision below. A defendant is eligible for safety-valve relief under Paragraph (f)(1) only if he “does not have” all three of the items listed—or said more specifically, does not have four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense. The paragraph thus creates an eligibility checklist, and demands that a defendant satisfy every one of its conditions.
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 7-8 (opinion of GORSUCH, J.).2 Recall that the paragraph requires a court to find that the defendant does not have the features specified 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
from “what ordinary grammar says.” Tr. of Oral Arg. 3. But in fact grammar does not say so much. There are two grammatically permissible ways to read Paragraph (f)(1). Yes, one is Pulsifer‘s. But the other is the Government‘s—that a defendant is ineligible for relief unless he can satisfy each of the paragraph‘s three conditions. The choice between the two, as this Part shows, is not a matter of grammatical rules. It can sensibly be made only by examining, as the next Part does, the paragraph‘s content, as read in conjunction with the Guidelines. Or, as we usually say in statutory construction cases, by reviewing text in context.
“And,” in grammatical terms, is of course a conjunction—a word whose function is to connect specified 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 definition 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 figuring 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;
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 ammonia.” See supra, at 7-8.
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 fine. 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 a statute strikingly similar in form to Paragraph (f)(1). First return to that paragraph to remind yourself of how it looks and reads. See supra, at 3. Now check out
As used in this section, the term “offenses against the United Statеs” does not include—
- a criminal violation of the Uniform Code of Military Justice (
10 U. S. C. 801 et seq.);- an offense against the laws of the District of Columbia; and
- 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
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 decided (as the Government says) to create an eligibility checklist, requiring a defendant to meet three distinct conditions before getting safety-valve relief. In the subsequent drafting process, an “and” could well have seemed intuitive. After all, on the Government‘s “checklist” view, a defendant must meet every one of three conditions—this one and this one and this one. Or said more concretely, the defendant must not have “more than 4 criminal history points” and must not have a “3-point offense” and must not have a “2-point violent offense.” So why not use an . . . “and“? It serves to connect the three necessary conditions coming off the (efficient) prefatory language. In other words, Congress might have thought that use of the conjunctive word “and” would reflect the needed conjunction of three requirements.
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
All student-athletes are eligible for an academic scholarship, provided that the student during the previous semester did not—
- miss more than five classes;
- fail to submit a paper in the semesterly, campus-wide writing competition; and
- earn less than a 3.0 GPA.
Brief for Pulsifer 19 (emphasis deleted). In Pulsifer‘s view,
not wait until it is lacking all three. The grammar in the two statements is identical, but their most natural understanding is not. Here, content drives meaning, so that in the one sentence, the absence of three items—and in the other sentence, the absence of one item—triggers the relevant purchase.
the policy is clear: A student may retain his scholarship unless he flunks “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 paper and “earns” a 1.0 GPA. Or similarly, a student who submits a (terrible) paper, while missing all his classes and obtaining the same “D” average. Is it now so clear that the policy allows a student to flunk two of the conditions, rather than requiring him to satisfy all three? Or is it, at the least, uncertain? And even supposing not, consider a variation:
All student-athletes are eligible for an academic scholarship, provided that the student during the previous semester did not—
- fail a course;
- commit plagiarism; and
- get arrested.
A student would need a lot of confidence 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 15-16; supra, at 6, 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, as against relevant background understandings. Recall a couple of examples. See supra, at 9–11. We interpret the injunction against drinking and driving in Pulsifer‘s way—“do not (A and B)“—because the two activities are usually perilous only in combination. We interpret the injunction against eating and drinking before surgery in the Government‘s way—“do not A and do not B“—because each activity alone is likely to have adverse consequence. Similarly here, the meaning of Paragraph (f)(1) may become clear if we examine the content of its three subparagraphs—what they say and how they relate to each other—as well as how they fit with other pertinent law. Or stated in the usual language of statutory
III
A
And indeed, that inquiry into text and context makes Paragraph (f)(1)‘s meaning clear. The paragraрh creates an eligibility checklist. It specifies 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 difficulties. First, Subparagraph A would become superfluous—without any operative significance. 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 against the Guidelines, thus answers the statutory puzzle here—reducing two grammatical possibilities to just one plausible construction.
Begin with superfluity. 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 disqualifies 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, disqualifies defendants who have any prior three-point offense, even if they do not have a two-point violent offense or more than four total points. And finally, Subparagraph C disqualifies 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 sufficiently 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) disqualifies 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.
And that kind of superfluity, in and of itself, refutes Pulsifer‘s reading. The problem here is no odd word or stray phrase, which might have escaped Congress‘s notice. Pulsifer‘s reading would negate one of three—indeed, the first of three—provisions in the very paragraph he is trying to interpret. When a statutory
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 21-24.) 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 3. 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 and so on. See USSG §§4A1.1, 4A1.2. Pulsifer claims that such zero-point convictions can still count as “offenses” under Subparagraphs B and C. If so, a defendant could have a three-point offense and a two-point violent offense while having zero total criminal-history points (thus making Subparagraph A do work even on Pulsifer‘s reading). But Pulsifer is wrong about how Paragraph (f)(1) works. It incorporates the Guidelines’ point-scoring system from start to finish. To count as a “3-point offense” under Subparagraph B or a “2-point violent offense” under Subparagraph C, a conviction must actually be assigned those points under the Guidelines. If a conviction is assigned zero points, it cannot be a “3-point offense” or a “2-point offense.” So Pulsifer‘s reading always renders Subparagraph A superfluous. Every person who has a three-point offense and a two-point violent offense (as the Guidelines score them) will also have more than four criminal-history points.
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 current sentence. Maybe the prior conviction is not as reliable as most. Or maybe it is not so good a measure of the defendant‘s future dangerousness. Whatever the precise explanation, the Guidelines give zero points to an offense in order to ensure that it not increase a later punishment. Except that under Pulsifer‘s view it could do just that: Offenses that the Guidelines deem irrelevant to future sentencing might end up triggering a mandatory minimum. And likewise, Pulsifer‘s view conflicts with a discrete feature of Paragraph (f)(1). Recall that under that paragraph, an offense earning one point cаnnot affect eligibility for relief, either alone or in combination with any other offense—presumably because a one-point offense is just too minor. See
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
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 lеss 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 avoid a mandatory minimum. The paragraph thus fails to divide, at the gate for safety-valve relief, more from less serious prior offenders.7
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
B
Pulsifer tries to tell a competing story (which the dissent mostly adopts, see post, at 8–9, 18–19). 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 remunera- tion” 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 6-23. 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-valve relief set out in Section 3553(f). See supra, at 2-3. Those conditions appear in a list—Paragraphs (f)(1) through (f)(5)—with an “and” linking them, just as an “and” links Paragraph (f)(1)‘s three subparagraphs. A look at the appendix may be helpful here. See infra, at 29. The stylized version of the list in Section 3553(f) (with content removed) goes as follows: The safety valve operates “if the court finds” 1, 2, 3, 4, “and” 5.
The problem for Pulsifer is that the meaning of the “and” in Section 3553(f) does not advance his reading of Paragraph
Pulsifer‘s deployment of another paragraph‘s “or” fares no better.
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 2-3. 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 31-32) 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 have the combination (A, B, and C). Or it may be read the Government‘s way—as stating that a defendant can get safety-valve relief only if he does not have A, does not have B, and does not have C. But the difficulty in choosing between those two constructions falls away once we consider the content of Subparagraphs A, B, аnd C: more than four criminal-history points (excluding points from a one-point offense), a prior three-point offense, and a prior two-point violent offense, all as determined under the Sentencing Guidelines. Then we discover that Pulsifer‘s view creates glaring superfluity, whereas the Government‘s view does not. And we discover that only the Government‘s view renders the provision capable of sorting more serious from less serious criminal records, consistent with both the statute‘s and the Guidelines’ designs. The two possible readings thus reduce to one—leaving no role for lenity to play.
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.
§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 sеntencing 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.
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.
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22-340
MARK E. PULSIFER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[March 15, 2024]
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
The
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,
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 range depends on an “offense level,” a figure that takes into account the seriousness of the defendant‘s crime and his role in it, as well as the defendant‘s “criminal history” score, a tallying that accounts for his past misconduct. United States Sentencing Commission, Guidelines Manual §§1B1.1, 4A1.1–4A1.2, ch. 5, pt. A (Nov. 2023) (USSG); see Rosales-Mireles v. United States, 585 U. S. 129, 133–134 (2018). The guidelines, however, are just that. A sentencing judge may sometimes depart or vary from the guidelines’ recommended range, picking a lower or higher sentence if it best fits the defendant and broader penological goals Congress has instructed courts to consider. See Gall v. United States, 552 U. S. 38, 46, 49-50 (2007);
In the 1980s and 1990s, Congress pursued a different approach for certain drug offenses. See
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 ed. 2003). By 1994, the federal prison population reached almost 74,000, with approximately 61.3% of inmates serving time for a drug offense. Ibid.
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
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.
The First Step Act also revised the safety valve‘s first provision. Where paragraph
“(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 thе 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
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 7; 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 7.
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 child, “If you do not have any homework left, you can go play with your friends.” The child would understand that he could play with his friends unless he had homework left to do.
Now apply those observations to paragraph (f)(1). Given the meaning of “and,” an ordinary reader would naturаlly 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)
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 7; 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 8-9 (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
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 16, 27; 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 & G. Singer, Sutherland Statutes and Statutory Construction §47:26, p. 448 (rev. 7th ed. 2014) (internal quotation marks omitted)). In its brief before us, the government leads with this example of the phenomenon: someone who says, “I sell red, white, and blue caps.” See Brief for United States 14. That statement, the government observes, contains an ambiguity. One listener might think that the seller offers caps bearing all three colors. But another listener might wonder if the seller implicitly means to “distribute” different colors to different caps—so that she really means to say she sells red caps, she sells blue caps, and she sells white caps. Only context, the government insists, can resolve the ambiguity and reveal which understanding best reflects the seller‘s meaning. Id., at 16.
If context suggests anything, however, it is that this observation has little to offer
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: “A charitable and educational institution” is an institution with both traits. The same holds true when a saleswoman offers “the red, white, and blue cap“: In that case, a buyer knows with certainty that the seller offers one kind of cap bearing all three colors.
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 11; 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 8; see also ante, at 9, 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 9.
But what does that prove? “[T]o acknowledge ambiguity is not to conclude that all interpretations are equally plausible.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). And an example of ambiguity about distribution
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.” (Emphases 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 suggests that, in a statute carrying grave criminal consequences, Congress was careful with its words and concerned with clarity. It did not leave ambiguities about distribution to be resolved by implication. Instead, it resolved them expressly, even at the cost of repetition.
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 10; 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 10 (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 15; Brief for United States 16. Yet somehow, the government neglects that samе 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.
Context exposes yet another flaw in the government‘s implicit distribution theory. If, as the government imagines, Congress was determined to find an “efficient” way to disqualify a defendant bearing any one of the three traits listed in paragraph (f)(1), ante, at 8, 13; see Brief for United States 18, it had an obvious solution before it: the word “or.” As we have seen, Congress employed exactly that approach three times in the safety valve: Paragraphs (f)(2), (f)(3), and (f)(4) all premise disqualification for relief on the presence of one trait or another. See Part II–B, supra. In this way, too, context confirms that, when Congress wanted to make one trait among many disqualifying, it proceeded expressly (and often efficiently)—but never by implication.
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 12; 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 12; 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 12, 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 25. Simply put, “we wouldn‘t be sitting here if Congress had used the word ‘or‘” in paragraph (f)(1). Tr. of Oral Arg. 97. Whatever ambiguity “or” might carry in other contexts, it carries none in
Finding the government on its back foot, the Court again comes to its defense, this time by trying tо 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 11-12. Perhaps, too, those two conjunctions are “versatile” words not entitled to the respect we usually
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 7-8. But now it reverses course. Resuscitating an argument the government itself has abandoned, the Court contends not just that the terms “and” and “or” are interchangeable, but that we need not even rely on our usual rules of interpretation when faced with them.
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 сannot be easily dismissed as meaningless when it comes to settling legal rights. Just imagine if the Sixth Amendment gave the accused a “right to a speedy or public trial.” Rather than getting a both timely and transparent trial, a defendant would be forced to choose which feature he prefers. Because the difference between “and” and “or” so regularly proves dispositive of important legal rights, drafting manuals for legal text from contracts to congressional legislation warn about the need to deploy the terms with care. See, e.g., Senate Office of the Legislative Counsel, Legislative Drafting Manual 64-65 (1997); K. Adams, A Manual of Style for Contract Drafting §§11.9-11.11,
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 15; Brief for United States 11, 16. Yet, as it turns out, not one but three contextual clues array against its theory.
Unable to muster a convincing response to any of that, the government pivots. Even if its implicit distribution theory suffers so many flaws, the government urges us to adopt it anyway because Mr. Pulsifer‘s reading of the law would introduce a superfluity into the safety-valve statute. It is a resourceful reply. The government has many. But it, too, falls flat.
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 from the statute, and what is left will make the exact same people eligible (and ineligible)
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 associated with sentences imposed by a court-martial, a foreign court, or a tribal court. §§4A1.2(g)-(i). The guidelines also instruct judges not to count points associated with offenses of a certain age. So, by way of illustration, if the defendant finished his sentence for a 3-point offense more than 15 years ago, those points are not counted. Likewise, if the defendant finished his sentence for a 2-point offense more than 10 years ago, those points do not count. §§4A1.2(e)(1)-(3). Courts thus perform “a single calculation” of a defendant‘s criminal history score. Ante, at 19, n. 6. But in doing so, they routinely distinguish between the points an offense carries and a defendant‘s ultimate, countable criminal history points.7
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 17. 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 to ask whether the defendant “ha[s]” a “3-point offense, as determined under the sentencing guidelines,” and “a 2-point violent offense, as determined under the sentencing guidelines.” But, the government suggests, we should read those provisions differently. We should read them to require a sentencing court to ask the further question whether the defendant‘s offenses also score criminal history points. As the government candidly admits, its superfluity argument depends on reading subparagraphs (B) and (C) as “car[ing] only about offenses that do score . . . criminal-history points.” Brief for United States 28-29; ante, at 19-20. Only then might subparagraph (A) be left without work to perform, for indeed an offense that scores three criminal history points under subparagraph (B) and a violent offense that scores two criminal history points under subparagraph (C) will always score more than four criminal history points under subparagraph (A).
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 help the government make its implicit distribution theory seem just a little less implausible.
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 21-22; 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. Brief for United States 20. By contrast, its implicit distribution theory would enable the law to fulfill its intended “role” “unerringly.” Ante, at 21, 22, 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, 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 20-22, and n. 7, even as it forcefully (and without a trace of irony) faults Mr. Pulsifer for appealing to statutory “purpose,” ante, at 26.
New framing or old, however, we have no business
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); 1 J. Story, Commentaries on the Constitution of the United States §427, at 411 (1833). It is a highly dеmanding 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 with Congress‘s work on the basis of some newly fashioned “absurdity-lite” doctrine.
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 22; 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.” Ibid.; 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 offense) thanks to a slightly more lenient sentencing judge remains eligible for relief. Rather than “unerringly” enable the safety valve to “separat[e] more serious prior offenders from less serious ones,” ante, at 21, the government‘s approach thus leaves much to happenstance and luck—an anomalous result indeed.
Return, then, to our actual absurdity doctrine and consider the government‘s argument
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 20. 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 dеfendants 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) (citing The Adventure, 1 F. Cas. 202, 204 (No. 93) (CC Va. 1812) (Marshall, C. J.)). It requires courts to interpret ambiguous “penal laws,” including those conсerning sentencing, in favor of liberty, not punishment. Wiltberger, 5 Wheat., at 95; United States v. Batchelder, 442 U. S. 114, 121 (1979); Bifulco v. United States, 447 U. S. 381, 387 (1980).
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
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 distribution theory and elevates it over the law‘s ordinary and most natural meaning.
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 а 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.