UNITED STATES OF AMERICA, Plaintiff – Appellant, v. CASSITY DANIELLE JONES, Defendant – Appellee.
No. 21-4605
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
February 21, 2023
PUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:20-cr-00207-MOC-DCK-1)
Argued: December 9, 2022 Decided: February 21, 2023
Before AGEE, DIAZ and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Diaz and Judge Harris joined.
ARGUED: Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellant. Joshua B. Carpenter, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant. John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellee.
The safety valve provision found in the First Step Act allows a district court to impose a sentence without regard to a mandatory minimum if certain criteria are met. Relevant here, the court must find
I.
In October 2020, Jones pled guilty to possession with intent to distribute fifty or more grams of methamphetamine in violation of
In relevant part, that statute provides that a sentencing court may impose a sentence without regard to the applicable mandatory minimum if it finds 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[.]
Jones acknowledged that she had more than four criminal history points—failing subsection (A) of
The Government noted a timely appeal. We have jurisdiction under
II.
The Court reviews questions of statutory interpretation de novo. United States v. Wood, 378 F.3d 342, 351 (4th Cir. 2004).
III.
The sole issue before the Court is whether a defendant is eligible for safety valve relief if she has fewer than all of
Our discussion proceeds in two parts. We first explain why Jones’ interpretation of
A.
1.
Turning first to the text of
We conclude that
The meaning of “and” does not change simply because it is preceded by a negative marker. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 119 (2012) (“After a negative, the conjunctive and is still conjunctive.”). When a conjunctive list is used to explain a prohibition, “the listed things are individually permitted but cumulatively prohibited.” Id. For example, if someone says, “Don’t drink and drive,”
she doesn’t mean that you shouldn’t drink and that you shouldn’t drive, but only that you shouldn’t do both at the same time.
The same logic applies to a conjunctive negative proof such as
Applying these straightforward principles to
When the words of the statute are clear, as is the case with
Nonetheless, because the Government and some courts which have considered this issue rely on certain tools of statutory interpretation to reach a different conclusion, we address several of those arguments below.
2.
In so doing, we first note that Jones’ interpretation is confirmed by the presumption of consistent usage, which provides that “[i]dentical words used in different parts of the same statute are generally presumed to have the same meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005). The words “and” and “or” are used throughout
[T]he court shall impose a sentence pursuant to [the sentencing] guidelines . . . without regard to any statutory minimum sentence, if the court finds at sentencing, . . . that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
It is undisputed that the “and” at the end of
court to assign the word “and” in
Further, the presumption of consistent usage also provides that “a material variation in terms suggests a variation in meaning.” Scalia & Garner, supra, at 170. This aspect of the canon is relevant in applying the safety valve because under
We are therefore convinced that
B.
The Government nonetheless contends that our reading of
history characteristics distributes the phrase “does not have” to each of the characteristics, meaning a defendant must not have any one of the characteristics to be eligible for safety valve relief. The Government then argues that Jones’ interpretation results in both surplusage and absurdity. We disagree on all points.
The Government says that it agrees that “and” is used conjunctively in
Notably, the Government does not point to any Fourth Circuit precedent that employs its “far-fetched and quixotic em-dash theory.” Lopez, 998 F.3d at 441 n.11; see also Palomares, 52 F.4th at 654 (Willett, J., dissenting) (“Style guides, dictionaries, books on grammar, and the like are silent on whether putting an em-dash after [a] negative phrase changes its meaning.”). Instead, the Government relies on examples of negative lists to support its argument. One such example is:
You must not—
(A) lie;
(B) cheat; and
(C) steal.
Opening Br. 18.
The Government suggests that this structure signals that the prefatory phrase “must not” modifies—or in its language is “distributed” to—each item individually, meaning that a person must not do any of the listed actions. To be sure, a reader might understand the sentence to prohibit any one of the three actions. “But that understanding has little to do with syntax and everything to do with our common understanding that” it is immoral to lie, cheat, or steal. United States v. Garcon, 54 F.4th 1274, 1280 (11th Cir. 2022) (en banc) (citation omitted). “Indeed, it is no coincidence that the more common wording of the prohibition uses an ‘or’ instead of an ‘and’: ‘You must not lie, cheat, or steal.’” Id. (citations omitted). It is therefore reasonable for a reader to assume that “and” “was inserted inartfully in place of the more natural ‘or.’” Id. The reader does not come to this understanding, however, due to the placement of an em-dash.
If Congress wanted the Government’s suggested outcome, it would have used “or” instead of relying on an ill-defined em-dash to alter the meaning of “and.” Further, the Government offers no proof except its own speculation that Congress was embracing its em-dash theory for this subsection—and only this subsection—of the statute. We therefore reject the Government’s argument. See id. (“We decline to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome.”).
2.
The Government—and most courts that have adopted its interpretation—posit that accepting Jones’ interpretation renders part of
Again, we disagree. Subsection (A) is not superfluous under Jones’ interpretation and, even if it was, the presumption against superfluity would not be reason to rewrite an unambiguous statute.
Notably, in determining that subsection (A) is not superfluous, we decline to adopt the Ninth Circuit’s reasoning in United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The Lopez court concluded that although subsection (C) states that a defendant cannot have “a prior 2-point violent offense,” it should be read as proscribing a defendant from having at least a prior two-point violent offense. See id. at 440. Under this reading, a defendant who has a single three-point violent offense satisfies both subsections (B) and (C)—because she has both at least a two-point violent offense and a three-point offense—but does not satisfy
subsection (A) because she does not have more than four criminal history points, thereby giving subsection (A) purpose.
We reject this postulate because it requires the Court to add words to the statute. As Judge Smith put it, “[t]wo points is two points. Two points is not three points. An interpretative canon, such as the rule against surplusage, ‘is not a license for the judiciary to rewrite language enacted by the legislature.’” Id. at 445 (Smith, J., concurring); see also United States v. Graham, 608 F.3d 164, 176 (4th Cir. 2010) (“In the face of the unambiguous words of the statute, we cannot construe [the statute] to add language that Congress omitted.”).
Instead, we conclude that subsection (A) has purpose without altering its plain language. As the Eleventh Circuit aptly explained in United States v. Garcon:
[A] circumstance in which a defendant could have two- and three-point offenses but fewer than five criminal history points occurs when the two- and three-point offenses are treated as a single sentence. The guidelines treat separate offenses as a single sentence for criminal-history purposes when the sentences result from offenses charged in the same instrument or when they were imposed on the same day. U.S.S.G. § 4A1.2(a)(2). When separate offenses are counted as a single sentence, the district court calculates the term of imprisonment based on the longest sentence if the sentences were imposed concurrently or the total of both sentences if they were imposed consecutively. Id. So, for example, a defendant could have a two-point and a three-point offense charged in the same instrument, satisfying subsections (B) and (C), but score only three criminal history points and fall below the threshold in subsection (A).
Garcon, 54 F.4th at 1282.4 Accordingly, subsection (A) is not superfluous under
Moreover, even if Jones’ interpretation rendered subsection (A) superfluous, it would not be a sufficient reason to ignore
that effect.” Lopez, 998 F.3d at 446–47 (Smith, J., concurring). We cannot amend
3.
The Government next asserts that the canon against absurdity prevents the Court from adopting Jones’ interpretation. This canon provides that statutes “are to be given a sensible construction”—interpretations that would lead to absurd consequences “should be avoided whenever a reasonable application can be given consistent with the legislative purpose.” United States v. Rippetoe, 178 F.2d 735, 737 (4th Cir. 1949). Absurdity exists “when literal application of the statutory language at issue results in an outcome that can truly be characterized as absurd, i.e., that is so gross as to shock the general moral or common sense.” In re Sunterra Corp., 361 F.3d 257, 265 (4th Cir. 2004) (citation omitted). The Government argues that Jones’ interpretation results in an absurdity because only defendants with a rare constellation of all three listed criminal history characteristics would be excluded from the safety valve’s application, while a defendant who has been convicted of “a lifetime of serious drug convictions” but no two-point violent offenses would be eligible for relief from a mandatory minimum. Opening Br. 21. We disagree once again.
Jones’ interpretation does not produce absurd results. The Government fails to recognize that meeting the requirements of
requirements necessary to be eligible to obtain relief. For example, the defendant cannot have “use[d] violence or credible threats of violence or posses[ed] a firearm or other dangerous weapon” in connection with her instant offense.
Moreover, even if the defendant meets all the statutory requirements, application of the safety valve is left to the sentencing judge’s discretion. Stated differently, that a defendant with a lifetime of serious drug offenses is eligible under
Further, these purportedly “absurd” results might be what Congress intended. “Congress could rationally have questioned the wisdom of mandatory minimum sentencing, which, it is often said, fails to account for the unique circumstances of offenders who warrant a lesser penalty.” Id. at 1283 (cleaned up). Congress may have wanted to deem ineligible only “violent recidivists with a history of committing serious crimes.” Id. To that end, subsection (A) targets serious recidivists—those with more than one prior sentence excluding one-point offenses; subsection (B) targets defendants who committed serious
crimes with long sentences; and subsection (C) targets defendants with a history of violence, even if they received shorter sentences. Taken together, only the most dangerous offenders are ineligible for relief, and it is not unreasonable to believe that Congress “decided to allow many defendants to be sentenced based on their ‘unique circumstances’ while retaining mandatory minimums for those defendants it perceived to be particularly unworthy of relief.” Id. (citation omitted); see also id. at 1284 (“The First Step Act was enacted to decrease the number of criminal defendants subject to mandatory minimum sentences.” (citation omitted)).
Ultimately, whether or not this is a prudent policy choice is not for the judiciary to decide: that determination lies solely with the legislative branch. And “[t]he [G]overnment’s request that we rewrite
Accordingly, we are persuaded that the plain text of
IV.
Because the district court correctly concluded that “and” means what it says in
AFFIRMED.
Notes
Garcon, 54 F.4th at 1281–82. “At a minimum, this shows that it is not accurate to assume that any defendant who satisfies (B) and (C) would automatically have more than four criminal history points.” United States v. Pace, 48 F.4th 741, 764 (7th Cir. 2022) (Wood, J., dissenting); see also Palomares, 52 F.4th at 658 (Willett, J., dissenting) (stating that courts favor “tolerating non-obvious surplusage” over “ignoring rudimentary grammar”).Under the sentencing guidelines, a two-point offense adds no points to the defendant’s criminal-history score if the sentence was imposed more than 10 years before the defendant commenced the present offense. UNITED STATES SENTENCING GUIDELINES MANUAL § 4A1.1(b) & cmt. n.2 (Nov. 2018). Similarly, a three-point offense does not contribute to the criminal-history score if the defendant finished serving the sentence more than 15 years before commencing the present offense. Id. § 4A1.1(a) & cmt. n.1. So, for example, a defendant could have 20-year-old two-point and three-point offenses, satisfying subsections (B) and (C), but score zero criminal history points and fall below the threshold in subsection (A). See Palomares, 52 F.4th at 659 (Willett, J., dissenting).