UNITED STATES OF AMERICA, Plaintiff-Appellant, versus JULIAN GARCON, Defendant-Appellee.
No. 19-14650
United States Court of Appeals For the Eleventh Circuit
December 06, 2022
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 9:19-cr-80081-JIC-1
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.
WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which WILSON, JILL PRYOR, NEWSOM, LUCK, and LAGOA, Circuit Judges, join.
ROSENBAUM, Circuit Judge, filed an opinion concurring in the judgment.
NEWSOM, Circuit Judge, filed a concurring opinion, in which LAGOA, Circuit Judge, joins.
JORDAN, Circuit Judge, filed a dissenting opinion.
BRANCH, Circuit Judge, filed a dissenting opinion, in which GRANT and BRASHER, Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II, III.A, and III.B.
BRASHER, Circuit Judge, filed a dissenting opinion.
The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.”
I. BACKGROUND
Julian Garcon was indicted in 2019 for attempting to possess 500 grams or more of cocaine with intent to distribute. See
At sentencing, Garcon asked the district court to apply the so-called “safety valve” of the First Step Act,
(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[.]
Garcon has a prior 3-point offense, and the parties disagreed about whether that prior offense disqualified Garcon from receiving safety-valve relief. Garcon argued that the use of the conjunctive “and” to join the subsections, see
The district court agreed with Garcon. It ruled that “[t]he plain meaning of the statute requires all three subsections of [section] 3553(f)(1) to be met before the defendant becomes ineligible for [the] safety valve.” To hold otherwise, the district court explained, would require it to replace the word “and” with the word “or.” And although it considered the “result” “absurd” and the legislative history supportive of the government’s reading, the district court explained that those considerations did not alter its analysis because “[t]he statute, as written, is unambiguous.” So, the district court applied the safety valve, calculated the applicable guidelines range, and imposed a sentence of 36 months’ imprisonment.
A panel of this Court disagreed. United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021). The panel reasoned that the word “and” in subsection (f)(1) means “or.” See id. at 1305. We voted to vacate the panel opinion and to rehear the appeal en banc. United States v. Garcon, 23 F.4th 1334 (11th Cir. 2022).
II. STANDARD OF REVIEW
“We review de novo questions of statutory interpretation.” United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).
III. DISCUSSION
We divide our discussion in two parts. We first explain why Garcon was eligible for safety-valve relief despite his prior 3-point offense. We then reject the government’s arguments to the contrary.
A. “And” Means “And.”
We begin, as we must, with the text of the statute. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). And we are guided in our interpretation of the text by the ordinary-meaning canon, “the most fundamental semantic rule of interpretation.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 6, at 69 (2012). The command of the canon is simple: “our job is to interpret the words consistent with their ordinary meaning
The parties’ dispute turns on the meaning of the word “and” in section 3553(f)(1), so we consider the ordinary meaning of that word. “And” means “along with or together with.” And, WEBSTER’S THIRD NEW INT’L DICTIONARY (1993). So when “and” is used to connect a list of requirements, the word ordinarily has a “conjunctive” sense, meaning that all the requirements must be met. See United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620–21 (2021). For example, if a statute provides, “You must do A, B, and C,” it is not enough to do only A, only B, or only C; “all three things are required”—A, together with B, together with C. See SCALIA & GARNER, supra, § 12, at 116.
The word “and” retains its conjunctive sense when a list of requirements follows a negative. See id. § 12, at 119. Consider the prohibition, “You must not drink and drive.” To comply, a person may do either activity by itself but may not do both. Id.; see also United States v. Palomares, 52 F.4th 640, 653 (5th Cir. 2022) (Willett, J., dissenting). Similarly, consider the command, “You must not do A, B, and C.” A person violates that prohibition only by doing all three prohibited acts—by doing A, together with B, together with C. See SCALIA & GARNER, supra, § 12, at 119. A person who does only A, only B, or only C is in the clear.
Applying these principles to section 3553(f)(1), Garcon’s prior 3-point offense does not disqualify him from safety-valve relief. Section 3553(f)(1) begins with a negative—“the defendant does not have”—and the three requirements that follow are joined by an “and.” See
Context confirms this reading. Ordinarily, we presume that “identical words used in different parts of the same act are intended to have the same meaning.” Util. Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S. 302, 319 (2014) (internal quotation marks omitted). The five numbered subsections of section 3553(f) are joined by the word “and” in subsection (f)(4):
[T]he court shall impose a sentence pursuant to [the] guidelines . . . if the court finds at sentencing . . . that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon . . . in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . . and was not engaged in a continuing criminal enterprise . . . ; and
(5) . . . the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense . . . .
Another aspect of the presumption of consistent usage is the principle that, ordinarily, “a material variation in terms suggests a variation in meaning,” SCALIA & GARNER, supra, § 25, at 170, and this principle too supports our interpretation. When conditions in section 3553(f) are disjunctive, the statute employs the word “or.” For example, the statute provides that a defendant is eligible for safety-valve relief only if he “did not use violence or credible threats of violence or possess a firearm or other dangerous weapon . . . in connection with the offense.”
Our reading is also buttressed by the Senate’s legislative drafting manual, which “support[s] a conjunctive interpretation of [section] 3553(f)(1)’s ‘and.’” United States v. Lopez, 998 F.3d 431, 436 (9th Cir. 2021); cf. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60–61 (2004) (relying on “standard interpreting guides,” including the House and Senate legislative drafting manuals, to interpret a statute). The manual instructs drafters on the proper use of “and” and “or,” directing them to use “and” as a conjunctive and “or” as a disjunctive:
IN GENERAL.—In a list of criteria that specifies a class of things—
(1) use ‘‘or’’ between the next-to-last criterion and the last criterion to indicate that a thing is included in the class if it meets 1 or more of the criteria; and
(2) use ‘‘and’’ to indicate that a thing is included in the class only if it meets all of the criteria.
Senate Off. of the Legis. Couns., Legis. Drafting Manual § 302(a) (1997). This directive supports our interpretation that a defendant is ineligible for safety-valve relief only if he “meets all of the criteria” in section 3553(f)(1)—that is, only if he has all
B. “And” Does Not Mean “Or.”
The government resists our reading. The government argues that, under a “distributive reading” of the word “and,” any one of the prohibitions listed in section 3553(f)(1) is disqualifying. It argues that the interpretation by the district court results in surplusage. It argues that the absurdity doctrine counsels against that interpretation. And it argues that legislative history supports its interpretation. We address and reject each argument in turn. And we explain why we must reach the same conclusion even if there were some merit to the government’s arguments.
1. The Government’s “Distributive Reading” Is Unpersuasive.
Although the government concedes that “and” should be treated “as conjunctive,” it argues that “a distributive reading offers the only natural interpretation of ” section 3553(f)(1). Under this reading, “the negative prefatory phrase [‘does not have’] distributes to modify each of the items severally,” such that “a defendant is eligible for safety-valve relief under [section] 3553(f)(1) [only] if he does not have any of the listed criminal-history conditions.” Essentially, the government invites us to read “and” to mean “or,” even as it concedes elsewhere in its briefs that this reading is mistaken. Neither the government nor our dissenting colleagues offer any authority that adopts this novel reading of “and,” other than recent decisions by our sister circuits that concern the same statutory provision. United States v. Palomares, 52 F.4th 640, 643–45 (5th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018, 1021–22 (8th Cir. 2022). We decline to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome.
The government is asking us to inject the words “does not have” into the statute where they do not appear. In the government’s view, the statute should essentially be read as follows: A defendant is eligible for the safety valve if he (A) does not have more than 4 criminal history points (excluding 1-point offenses); (B) does not have a prior 3-point offense; and (C) does not have a prior 2-point violent offense. But we must “take the provision as Congress wrote it, and neither add words to nor subtract them from it.” Korman v. HBC Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999).
The government supplies examples of its distributive reading of the phrase “not . . . and,” but those examples are unpersuasive. It gives as an example the advice, “To be healthy, you must not drink and smoke.” And it asserts that a reader “would reasonably distribute the prefatory phrase ‘you must not’ to each item individually,” in effect turning the conjunctive “and” into a disjunctive “or.” To be sure, a reader might understand the “and” in the example as a disjunctive. “But that understanding has little to do with syntax and everything to do with our common understanding that” drinking and smoking can be harmful individually. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 (2021) (Alito, J., concurring in the judgment). So a reasonable reader might assume that the “and” was inserted inartfully in place of the more natural “or.” Another of the government’s examples— the prohibition, “[y]ou must not lie, cheat, and steal”—is unpersuasive for the same reason. Indeed, it is no coincidence that the more common wording of the prohibition uses an “or” instead of an “and”: “You must not lie, cheat, or steal.” See, e.g., Van Orden v. Perry, 545 U.S. 677, 715 (2005) (Stevens, J., dissenting) (“The State may admonish its citizens not to lie, cheat, or steal . . . .”); Andrews v. Knowlton, 509 F.2d 898, 902 (2d Cir. 1975) (“The Cadet Honor Code in force at the United States Military Academy consists of a single maxim: ‘A cadet does not lie, cheat or steal or tolerate those who do.’”).
Nor does the government’s position find support in the similarly named “distributive canon.” The canon “recognizes that sometimes where a sentence contains several antecedents and several consequents, courts should read them distributively and apply the words to the subjects which, by context, they seem most properly to relate.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (alteration adopted) (internal quotation marks omitted); see also SCALIA & GARNER, supra, § 33, at 214 (“Distributive phrasing applies each expression to its appropriate referent.”). For example, “a rule stating that ‘[m]en and women are eligible to become members of fraternities and sororities’ cannot reasonably be read to suggest an unconventional commingling of sexes in the club membership.” SCALIA & GARNER, supra, § 33, at 214. Put simply, application of the distributive canon is like inserting the word “respectively” at the end of two connecting lists. The canon has no application here because there is no list of antecedents to match to a corresponding list of consequents—no series of lists that can be clarified with the word “respectively.” Cf. Facebook, 141 S. Ct. at 1172 (“[T]he canon’s relevance is highly questionable given there are two antecedents . . . but only one consequent modifier.”).
2. The Ordinary Meaning of “And” Does Not Produce a Surplusage.
The government next contends that we should adopt its interpretation of section 3553(f)(1) to avoid rendering part of the section superfluous. The government asserts that a defendant who has “a prior 3-point offense,”
The superfluity argument has superficial appeal—after all, as our dissenting colleagues helpfully remind us, three plus two is more than four, Branch Dissenting at 16—but it rests on the mistaken premise that a defendant who satisfies subsections (f)(1)(B) and (f)(1)(C) will always satisfy subsection (f)(1)(A). To the contrary, there are at least two circumstances in which a defendant could have “a prior 2-point violent offense” and “a prior 3-point offense . . . under the sentencing guidelines” but fewer than five “criminal history points.” See
The second circumstance in which a defendant could have two- and three-point offenses but fewer than five criminal history points occurs when the two- and three-point offenses are treated as a single sentence. The guidelines treat separate offenses as a single sentence for criminal-history purposes when the sentences result from offenses charged in the same instrument or when they were imposed on the same day. Id. § 4A1.2(a)(2). When separate offenses are counted as a single sentence, the district court calculates the term of imprisonment based on the longest sentence if the sentences were imposed concurrently or the total of both sentences if they were imposed consecutively. Id. So, for example, a defendant could have a two-point and a three-point offense charged in the same instrument, satisfying subsections (B) and (C), but score only three criminal history points and fall below the threshold in subsection (A).
The government argues that “if an offense is too old to score any points under the [g]uidelines, then it is not a ‘prior [2- or] 3-point offense, as determined under the sentencing guidelines,’” see
To be sure, our interpretation requires reading “prior 3-point” and “2-point violent offense[s],” id. § 3553(f)(1)(B)–(C), to include offenses that do not contribute to the total criminal-history score, but this reading is a function of the statutory text. The guidelines are not framed around “offenses”; they instead instruct sentencing courts to add points to the defendant’s criminal-history score for his “prior sentence[s] of imprisonment.” See U.S.S.G. § 4A1.1. So the meaning of “a prior . . . offense” must come from section 3553(f), not from the guidelines. See
To the extent that the guidelines offer clues about the meaning of “a prior . . . offense,” id., the guidelines support our interpretation. Like section 3553(f)(1), the guidelines use the word “offense” to refer to convictions that may or may not contribute to a criminal history score. Section 4A1.2, for example, describes in what instances “offenses are counted.” U.S.S.G. § 4A1.2(c). It provides that most “[s]entences for misdemeanor and petty offenses are counted,” but then lists the “prior offenses and offenses similar to them” that “are never counted” or that “are counted only” in certain circumstances. See id. And like section 3553(f)(1), the guidelines delineate between the number of points for prior sentences and the calculation of a criminal history score. For example, under the guidelines, a “prior sentence of imprisonment exceeding one year and one month” is worth “3 points.” Id. § 4A1.1(a). But that prior sentence is “not counted,” id. § 4A1.1 cmt. n.1, toward “[t]he total points” of the criminal history score, id. § 4A1.1, if the “sentence [was] imposed more than fifteen years prior to the defendant’s
3. The Ordinary Meaning of “And” Does Not Produce an Absurd Result.
The government next relies on the absurdity doctrine. The doctrine permits a court to “depart from the literal meaning of an unambiguous statute . . . where a rational Congress could not conceivably have intended the literal meaning to apply.” Vachon v. Travelers Home & Marine Ins. Co., 20 F.4th 1343, 1350 (11th Cir. 2021) (Pryor, C.J., concurring) (alteration adopted) (citation and internal quotation marks omitted). Because “[c]ourts should not be in the business of rewriting legislation, . . . we apply the absurdity doctrine only under rare and exceptional circumstances.” Id. (internal quotation marks omitted). The government argues that, because only “the rare defendant” would fail all three subsections in section 3553(f)(1), our interpretation “would expand eligibility to defendants that Congress could not have plausibly deemed worthy of relief.” We disagree.
This case is not the exceptional one in which the absurdity doctrine permits us to rewrite the statute, as even our dissenting colleagues acknowledge. See Branch Dissenting at 23–24. Congress could rationally have “question[ed] the wisdom of mandatory minimum sentencing,” which, “it is often said, fail[s] to account for the unique circumstances of offenders who warrant a lesser penalty.” See Harris v. United States, 536 U.S. 545, 568 (2002), overruled on other grounds by Alleyne v. United States, 570 U.S. 99 (2013). And Congress could rationally have decided to allow many defendants to be sentenced based on their “unique circumstances,” see id., while retaining mandatory minimums for those defendants it perceived to be particularly unworthy of relief. To that end, each portion of section 3553(f)(1) targets a different type of behavior suggestive of future dangerousness. Under the guidelines, a prior sentence can have up to three points associated with it. See U.S.S.G. § 4A1.1. So the requirement in subsection (A)—that a defendant not have “more than 4 criminal history points”—targets serious recidivists, that is, defendants with more than one prior sentence excluding minor one-point offenses. See
The rationality of section 3553(f )(1) is even clearer—and the absurdity argument even weaker—when the section is considered as part of the larger statutory scheme. A criminal defendant’s ability to satisfy section 3553(f )(1) does not guarantee that the defendant will satisfy the four other subsections necessary to qualify for safety-valve relief. See id. § 3553(f )(2)–(5). To the contrary, those subsections will often disqualify defendants the government considers unworthy of relief. For example, the government expresses concern that certain violent offenders may remain eligible for relief, but the statute disqualifies a defendant if he “use[s] violence or credible threats of violence . . . in connection with
Because section 3553(f)(1) is rational, we have no power to rewrite the statute to accommodate the government’s policy concerns about the number of defendants eligible for relief, see Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021), and the government gets no further by ascribing those concerns to Congress. The First Step Act was enacted to decrease the number of criminal defendants subject to mandatory minimum sentences. See
disqualifying a defendant from safety-valve relief if he had “more than 1 criminal history point“). That Congress might not have anticipated how broadly its reforms would sweep does not make those reforms absurd. See Vachon, 20 F.4th at 1351 (Pryor, C.J., concurring) (“[T]he absurdity doctrine does not give us license to fix substantive errors arising from a drafter‘s failure to appreciate the effect of certain provisions . . . .” (internal quotation marks omitted)).
The government also mentions the possibility that a conjunctive reading of “and” would disqualify some defendants while “allow[ing] more serious offenders to obtain relief.” And our concurring colleague offers a specific hypothetical example about an offender who has several violent three-point offenses but no violent two-point offenses. Rosenbaum Concurring at 3. Notably, one of our sister circuits, which shares our view of the conjunctive reading, has rejected our concurring colleague‘s reading. See Lopez, 998 F.3d at 440 n.10 (rejecting this interpretation as “nonsensical” because the
Neither the government‘s interpretation nor our concurring colleague‘s specific example would make the ordinary meaning of the statute absurd. “Congress often legislates at the macro level, not on a micro scale.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1229 (11th Cir. 2001). One consequence of this approach is that legislation sometimes “sweep[s] too broadly” by “affording protection and relief to some who are not truly deserving or aggrieved,” even as it sweeps “too narrowly” by “failing to reach some who are more deserving or aggrieved.” Id. Because this “[i]mperfection” stems from the “nature of [the] political process,” id., we consider the rationality of the overall statutory scheme and not whether “a particular application of the [scheme] may lead to an arguably anomalous result,” see Silva-Hernandez v. U.S. Bureau of Citizenship & Immigr. Servs., 701 F.3d 356, 364 (11th Cir. 2012). And because, as we have explained, a rational Congress could conceivably have intended to disqualify only those defendants who satisfy every condition in
4. The Legislative History Is Irrelevant.
The government argues that the legislative history supports its interpretation, but we agree with its alternative argument that “[t]here is no need to consult [that] history.” Assuming legislative history plays a role in modern statutory interpretation, see Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969 (11th Cir. 2016) (en banc), that role is limited to “shed[ding] . . . light on the enacting Legislature‘s understanding of otherwise ambiguous terms,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Because the meaning of “and” in
5. The Rule of Lenity Counsels Against the Government‘s Interpretation.
If any “grievous ambiguity” remained, the rule of lenity would resolve it. See Barber v. Thomas, 560 U.S. 474, 488 (2010) (internal quotation marks omitted). “The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused.” United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010) (Pryor, J., concurring). The rule applies “not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Id. at 717 (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)). Our dissenting colleagues dismiss the rule of lenity by maintaining that their interpretation resolves any ambiguity. Branch Dissenting at 27–28. But our dissenting colleagues resolve this ambiguity only by ignoring the canons that point in a different direction. See SCALIA & GARNER, supra, § 3, at 59 (“Principles of interpretation are guides to solving the puzzle of textual meaning, and as in any good mystery, different clues often point in different directions.“). Even if our dissenting colleagues and the government were correct that our interpretation rendered part of
IV. CONCLUSION
We AFFIRM Garcon‘s sentence.
ROSENBAUM, Circuit Judge, Concurring:
From my seat, the shootout at the Eleventh Circuit Corral between the well-reasoned Majority and Dissenting Opinions here produces no indisputable winner after the smoke clears. For me, the problem is that the traditional tools of statutory interpretation fail to produce one interpretation of
So I would apply the rule of lenity to settle that “grievous ambiguity.”1 And as the Majority Opinion explains, applying that rule begets the conclusion that a defendant qualifies for safety-valve relief as long as he does not satisfy all three of the factors
That said, the Dissent‘s common-sense interpretation of
The First Step Act then loosened up safety-valve eligibility a bit, authorizing relief from a mandatory minimum sentence for a defendant who, among other qualifications, “does not have” “more than 4 criminal history points,” “a prior 3-point offense,” “and” “a prior 2-point violent offense.”
So from a common-sense standpoint driven by the purpose and statutory context of
Dismissing this contradiction, the Majority Opinion suggests that
To summarize, then, the upshot of the Majority Opinion‘s construction of
Still, though, the Supreme Court has cautioned us that “[t]he canon against surplusage is not an absolute rule.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013). And although I personally don‘t find the Majority Opinion‘s surplusage explanation satisfying, I also can‘t say it‘s wrong beyond question.
Plus, the Majority Opinion is, of course, correct when it emphasizes that “and” is a conjunctive word. Not only does the statute use the word “and” to connect all three disqualifying factors under
Each of these dueling interpretive canons and considerations seems to apply more strongly than the last in the context of analyzing
With that in mind, I also have two concerns with following the Dissent‘s construction. First, given the plain language of
Not for nothing, but those are precisely the two concerns the rule of lenity addresses. See United States v. Phifer, 909 F.3d 372, 383 (11th Cir. 2018) (citing United States v. Bass, 404 U.S. 336, 347 (1971)). As the Supreme Court has observed, the rule of lenity is just about as old as “the task of statutory ‘construction itself.‘” United States v. Davis, 139 S. Ct. 2319, 2333 (2019) (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.)). Indeed, the rule of lenity reflects the law‘s “tenderness” for “the rights of individuals” to receive “fair notice
Though the cases where the rule of lenity applies are few and far between—after all, it is a rule of last resort that applies only after exhausting the canons of statutory construction still leaves us with a “grievously ambiguous” statute—
NEWSOM, Circuit Judge, joined by LAGOA, Circuit Judge, concurring:
I concur in the Court‘s decision and join its opinion in full. I write separately simply to articulate one more reason for rejecting the government‘s anti-surplusage argument—and to comment, very briefly, on what I take to be the proper role of canons of construction in the interpretive enterprise.
A lot of ink has been spilled over the anti-surplusage canon‘s relevance to the question before us. Today‘s majority and the Ninth Circuit have identified two different ways to eliminate the purported surplusage in
“In interpreting written law, our duty is to ‘determine the ordinary public meaning’ of the provision at issue.” Heyman v. Cooper, 31 F.4th 1315, 1319 (11th Cir. 2022) (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020)). To be sure, “[t]he canons of construction often ‘play a prominent role’ in that endeavor, serving as ‘useful tools’ to discern that ordinary meaning.” Id. (quoting Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021) (Alito, J., concurring)). I consult the canons routinely in statutory, regulatory, and contract cases—we all do. But the canons “are not ‘rules’ of interpretation in any strict sense.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 51 (2012). Rather, they are simply “presumptions about what an intelligently produced text conveys.” Id. Accordingly, in carrying out our basic task—discerning a written provision‘s ordinary meaning—“we shouldn‘t treat the canons ‘like rigid rules,‘” and we should be alert to over- or misusing them. Heyman, 31 F.4th at 1319 (quoting Duguid, 141 S. Ct. at 1175 (Alito, J., concurring)). For it bears repeating that our “obligation is to the text and not the canons per se.” Id. at 1321–22; see also United States v. Monsanto, 491 U.S. 600, 611 (1989) (“[I]nterpretative canons are not a license for the judiciary to rewrite language enacted by the legislature.” (cleaned up)).
The government‘s anti-surplusage argument here—which, I‘ll admit, is not without some force—violates this cardinal command.
Put simply, just as no amount of canon-based massaging could make “white” mean “black” or “up” mean “down,” none can make the word “and” mean “or.” Now, maybe Congress just made a mistake—perhaps it meant to say “or” in
JORDAN, J., Dissenting:
The criminal history criteria of the so-called “safety-valve” provision allows a district court in certain narcotics cases to impose a sentence without regard to an otherwise-applicable statutory minimum if “the defendant does not have”
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines[.]
I very much doubt that this is the state of affairs that Congress envisioned when it revised the criminal history portion of the “safety valve” provision in the First Step Act of 2018. I agree with much of what Judge Branch has said, and join Parts I, II, III.A, and III.B of her dissent. I write separately to explain that—depending on the context—the word “and” can be read disjunctively in legal texts, and to set out the views of the Senators who proposed the exact provision that became
I
At the end of the day, the resolution of Mr. Garcon‘s case turns on the meaning of the word “and” in
Generally “and” is used as a conjunctive connector of words, phrases, or clauses. See Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1332 (11th Cir. 2005); The American Heritage Dictionary of the English Language 66 (5th ed. 2018). But here “and” is being used in a statute, so its legal sense matters. See, e.g., Stansell v. Revolutionary Armed Forces of Colombia, 45 F. 4th 1340, 1353-54 (11th Cir. 2022) (choosing the legal understanding, rather than the lay understanding, of a statutory term). And that is where things start to get interesting.
By the mid-19th century, English courts had “already allowed for and = or and or = and.” Webster‘s Dictionary of English Usage 94 (1989). The legal interchangeability between “and” and “or” was similarly understood across the pond in American law. The Supreme Court expressly recognized this fluidity in United States v. Fisk, 70 U.S. 445, 447 (1865), and legal dictionaries of the era did as well. See 1 Alexander M. Burill, A New Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms of the Common and Civil Law 70 (1850) (“AND, in written instruments, is frequently construed to mean or, where reason and the intent of the parties requires it. . . . A similar rule of construing the conjunctive participle in a disjunctive sense, prevailed in the civil law. Sæpa ita comparatum est, ut conjuncta pro disjunctis accipiantur.“); 1 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws 58 (1888) (recognizing that “and” can be “construed to mean ‘or‘” or “read [as] ‘or‘“); Arthur English, Dictionary of Words and Phrases Used in Ancient and Modern Law 47 (1899) (“And. . . . Sometimes construed to mean ‘or.‘“); James John Lewis, Collegiate Law Dictionary: A Dictionary of Technical Terms of the Law and of Words and Phrases Which Have Been Judicially Defined 13 (1925) (“[A]nd . . . In construing instruments and statutes, frequently construed as meaning ‘or[.]‘“); William E. Baldwin, Baldwin‘s Century Edition of Bouvier‘s Law Dictionary 71 (1926) (“AND. In order for the court to ascertain the intention of the legislature in construction of statutes, they are often compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as ‘or.‘“).1
We‘ve said the same things several times. For example, in Peacock v. Lubbock Compress Co., 252 F. 2d 892, 893 (5th Cir. 1958), we explained that “the word ‘and’ is not a word with a single meaning, for chameleonlike, it takes its color from its surroundings.” More recently, we noted that
“[e]very use of ‘and’ or ‘or’ as a conjunction involves some risk of ambiguity.” As we have recognized in our cases, “[i]t is an established princip[le] that ‘the word “or” is frequently construed to “and,” and vice versa, in order to carry out the evident intent of the parties.‘” In other words, “there is more to ‘and’ than meets the eye.”
Shaw v. Nat‘l Union Fire Ins. Co. of Pittsburgh, 605 F.3d 1250, 1253 (11th Cir. 2010) (citations omitted).
In sum, “[t]he simplest-looking words are often among the most complicated, and ‘and’ is no exception.” R.W. Burchfield, Fowler‘s Modern English Usage 52 (Rev. 3d ed. 2004). As one legal dictionary has put it: “‘And’ is a conjunction that has an inherent ambiguity in its use . . . . [As an example,] ‘the clerk requires A, B, and C,’ may mean that the clerk requires one of the three or that the clerk requires all three at once.” 1 Bouvier Law Dictionary 148 (Desk ed. 2012). Accord De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) (“We start with the proposition that the word ‘or’ is often used as a careless substitute for the word ‘and‘; that is, it is often used in phrases where ‘and’ would express the thought with greater clarity.“); Bryan A. Garner, Garner‘s Dictionary of Legal Usage 56 (3d ed. 2011) (“Sloppy drafting sometimes leads courts to recognize that and in a given context means or, much to the chagrin of some judges[.]“).2
II
The original “safety valve” provision, enacted by Congress in 1994, allowed district courts to sentence certain narcotics defendants without regard to an otherwise-applicable statutory minimum if certain criteria were established. One of those criteria was that the defendant did “not have more than 1 criminal history point, as determined under the sentencing guidelines.”
A
In November of 2018, Senator Chuck Grassley—together with 11 fellow Senators serving as original co-sponsors—introduced a bill in the Senate that would, as relevant here, change the criminal history criteria for “safety valve” relief. That bill, as drafted, did not become law. But its proposed language for the revised version of
the
The Senate Committee on the Judiciary—through Senator Grassley and his co-sponsors—published a summary of what S. 3649 was meant to do. With respect to the proposed amendment of the criminal history criteria of the “safety valve” provision, they explained that the broadened version would still limit relief to defendants with little or no criminal history:
This section expands the existing safety valve to include offenders with up to four criminal history points, excluding 1-point offenses, such as minor misdemeanors. However, offenders with prior “3 point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses (violent
offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial finding that those prior offenses substantially overstate the defendant‘s criminal history and danger of recidivism.
Senate Committee on the Judiciary, “The First Step Act of 2018 (S. 3649)—as introduced,” p. 2 (Nov. 15, 2018) (emphasis added).4
So, according to the Senators who proposed the language that ultimately became
“Legislative history is not the law, but [it] can help us understand what the law means.” Robert A. Katzmann, Judging Statutes 38 (2014). When a statutory term is unclear, certain types of legislative materials—if probative of intent or purpose—can help courts figure out the better (or more appropriate) reading of the term. “‘Traditionally,’ then, ‘the Supreme Court and other federal courts have routinely considered statements by sponsors when relevant to an issue of statutory interpretation.‘” William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 246 (2016).6
I do not suggest that the collective view of Senator Grassley and his Senate co-sponsors is determinative as to the meaning of “and.” But I do submit that it is relevant. See, e.g., Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777-78 (2018) (considering legislative materials concerning a statute‘s purpose in determining the meaning of a statutory term); Anderson v. Cagle‘s, Inc., 488 F.3d 945, 958 (11th Cir. 2007) (considering a sponsor‘s statement about the purpose of a proposed statutory amendment).
After all, “[i]f a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 400 (1950). Our job is to “ascertain the . . . intention of [Congress],” and in “order to do this” we are sometimes “compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or.‘” Fisk, 70 U.S. at 447.
B
“[C]ommon sense is not irrelevant in construing statutes.” Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312 (11th Cir. 2013). Here a disjunctive reading of “and” in
As Judge Branch convincingly explains, if the word “and” is read conjunctively—so that a defendant is disqualified from “safety
We “are obliged to give effect, if possible, to every word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), and reading “and” disjunctively seems like a small linguistic price to pay to avoid making subsection (f)(1)(A) superfluous. See 1A Norman Singer, Sutherland on Statutory Construction § 21:14 (7th ed. & Nov. 2020 update). Given the choices available, it is better to read a word in its non-usual (but legally permissible) sense than to render a statutory provision meaningless. As we have done before, I would resolve the case on that basis. See Peacock, 252 F.2d at 893 (construing the word “and” as “or” in order to prevent a provision from being “read . . . out of the statute“).
III
As I read
BRANCH, Circuit Judge, dissenting, in which GRANT and BRASHER, Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II, III.A, and III.B:
The safety-valve provision of the
(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;
I dissent because the Majority‘s interpretation is contrary to the structure and context of the statute. And it creates two surplusage problems. First, it renders an entire subsection—(f)(1)(A)—redundant. Second, it disregards Congress‘s plain instruction that all pertinent statutory determinations for purposes of
I. Background
The facts surrounding Garcon‘s underlying conviction are not relevant to this appeal. Suffice it to say, Garcon pleaded guilty to a drug offense which carried a statutory minimum sentence. In an attempt to avoid the statutory minimum, Garcon sought refuge in the safety-valve provision of
As amended by the
Notwithstanding any other provision of law, in the case of an offense under [various drug-related statutes], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission . . . without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.
In the district court proceedings below, Garcon argued that the “and” in subsection (f)(1)(B) was conjunctive, meaning that a defendant is eligible for safety-valve relief so long as he does not have all three specified criminal history characteristics in
The government appealed, arguing that, when examined in the broader context of the statute as whole, the only reasonable interpretation was that the “and” in
Before the en banc court, the government argued that the “and” is conjunctive but distributive and that the preceding “does not have” qualifier in
But giving “and” in
My dissent proceeds in four parts. First, I start where all issues of statutory interpretation must—with the text of the statute, guided by the interpretive canons of statutory construction. Second, I explain how the Majority‘s conjunctive interpretation renders a portion of the statute superfluous. Third, I explain other problems presented by the Majority‘s interpretation. Lastly, I explain why the rule of lenity does not apply.
II. Standard of Review
Issues of statutory interpretation are reviewed de novo. United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012). In conducting statutory interpretation, “we do not look at one word or term in isolation but rather look to the entire statute and its context.” Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010); In re Walter Energy, Inc., 911 F.3d 1121, 1143 (11th Cir. 2018) (same).
III. Discussion
A. Context demonstrates that the “and” in subsection (1) of the safety-valve statute is disjunctive
In determining the meaning of the safety-valve requirement in
In this case, we must interpret how the word “and” operates in the eligibility checklist in
It is well established that “there is more to ‘and’ than meets the eye.” Shaw v. Nat‘l Union Fire Ins. Co. of Pittsburgh, Pa., 605 F.3d 1250, 1253 (11th Cir. 2010) (quoting OfficeMax, Inc. v. United States, 428 F.3d 583, 588 (6th Cir. 2005)). For “the word ‘and’ is not a word with a single meaning“; like a “chameleon[], it takes its color from its surroundings.” Peacock v. Lubbock Compress Co., 252 F.2d 892, 893 (5th Cir. 1958).3 As a result, “[c]ourts are often compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as meaning ‘or.‘”4 Id.
(1865)); see also e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018) (examining whether the word “or” in a statute was disjunctive or conjunctive); Noell v. Am. Design, Inc., 764 F.2d 827, 833 (11th Cir. 1985) (“It is an established principle that the word ‘or’ is frequently construed to mean ‘and,’ and vice versa, in order to carry out the evident intent of the parties.” (quotation omitted)). Thus, “every use of ‘and’ or ‘or’ as a conjunction involves some risk of ambiguity.” Shaw, 605 F.3d at 1253 (quotation omitted). Accordingly, although the word “and” carries a presumption that it bears a conjunctive meaning, that presumption can be overcome by context.
When interpreting a statute—and certainly where, as here, there is more than one reasonable interpretation of a statutory term—we can look to the canons of statutory construction as a guide. “The canons assist the Court in determining the meaning of a particular statutory provision by focusing on the broader, statutory context.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir. 2001). Looking at the entire statutory context and adhering to our obligation to give effect to every word, if possible, that Congress used, there is a strong contextual basis for reading the “and” in
It is a well-established principle that interpretations that cause a provision to have no consequence or to duplicate another provision should be avoided. See Scalia & Garner, supra, at 174–79. Accordingly, “[i]f a provision is susceptible of (1) a meaning that gives it an effect already achieved by another provision, or that deprives another provision of all independent effect, and (2) another meaning that leaves both provisions with some independent operation, the latter should be preferred.” Id. at 176; see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (explaining that construing a statute so as to avoid rendering any clause, sentence, or word “superfluous, void, or insignificant” “is a cardinal principle of statutory construction” (quotations omitted)). The surplusage canon “is strongest when[, as here,] an interpretation would render superfluous another part of the same statutory scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013).
Accordingly, I would
Consequently, I agree with the Seventh Circuit that the conjunctive interpretation advanced by Garcon and adopted by the Majority “creates more problems than solutions and renders a portion of the statute superfluous.” Pace, 48 F.4th at 754; see also Palomares, 52 F.4th at 645 (explaining that under a conjunctive interpretation of “and” “[§] 3553(f)(1)(A) would be surplusage“). The Majority adheres too rigidly to the ordinary-meaning and consistent usage canons,6 at the expense of the “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc., 534 U.S. at 31 (quotations omitted); see also Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (explaining that it is a “cardinal principle of interpretation that courts must give effect, if possible, to every clause and word of a statute” (quoting Loughrin v. United States, 573 U.S. 351, 358 (2014))). It is true that the canons of construction “are not mandatory rules.” Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (quotation omitted). But here, it is possible to give effect to every word of a statute—but only by adopting a disjunctive reading of “and.” As a result, we should give the canon against surplusage particular weight.
As for the consistent usage and ordinary-meaning canons, “[s]pecific canons are often countered by some maxim pointing in a different direction.” Id. (alteration adopted) (quotation omitted). See also Scalia & Garner, supra, at 59. Such is the case here.7
As explained previously, reading “and” in a conjunctive (non-distributive) sense as the Majority does renders subsection (A) superfluous because a defendant who has a prior 3-point offense under subsection (B) and a prior 2-point violent offense under subsection (C) will necessarily have more than 4 criminal history points for purposes of subsection (A). No one disputes that 3+2=5.
Rather, Garcon and the Majority attempt to avoid the superfluity problem with subsection (A) by proffering the misguided explanation that “prior offenses” which do not score criminal history points for purposes of subsection (A) should nonetheless be scored and considered 3-point offenses or 2-point violent offenses for purposes of
First, this approach violates the plain text of the statute. As discussed previously, for each criterion in subsections (A), (B), and (C), Congress included the language, “as determined under the sentencing guidelines.”
Second, the Majority‘s theory that subsection (A) of
Indeed, it is clear from other sections of the guidelines that the term “prior sentence” is synonymous with a “prior offense.” See, e.g.,
Third, the Majority has crafted an unusual approach that would involve assigning criminal history points to a defendant‘s “prior offense” where that offense did not otherwise receive criminal history points “as determined under the sentencing
The total points from subsections (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
- Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
- Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
- Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
- Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
- Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.
(emphasis added). And
By including the language “as determined under the sentencing guidelines” in subsections (A), (B), and (C), Congress plainly directed courts to consult and follow the directives of the sentencing guidelines when determining whether the defendant has the disqualifying criminal history specified in
C. In addition to surplusage, the Majority‘s interpretation presents other fundamental problems
Surplusage is not the only problem with the Majority‘s interpretation. In order to accept the Majority‘s sometimes-we-count-sometimes-we-don‘t theory, we would have to effectively rewrite subsections (B) and (C) in one of two ways. Specifically, for the Majority‘s theory to work, we would have to remove the “as determined under the sentencing guidelines” language from
While I disagree with much of the Majority‘s analysis, I note that we agree that its conjunctive (non-distributive) interpretation of “and” does not produce truly absurd results for purposes of invoking the absurdity canon. That is, if the text were clear in supporting the Majority‘s reading, then the resulting absurdity alone would not be a reason to vary from the text. See Small v. United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting) (explaining that “[w]e should employ [the] canon [against absurdities] only where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result . . . and where the alleged absurdity is so clear as to be obvious to most anyone” (quotation omitted)). Nevertheless, I note that under the Majority‘s interpretation virtually every criminal defendant will pass
Although the Majority suggests that the government‘s concern that serious, repeat violent offenders will qualify for safety-valve relief is unfounded because
Accordingly, although the ordinary meaning and the consistent usage canons of statutory construction advanced by the Majority may counsel in favor of its conjunctive interpretation, those principles of interpretation are cabined by the statutory context and countered by the canon against surplusage, which point us in a different direction. A disjunctive interpretation, by contrast, gives full effect to each of the provisions in
D. The Rule of Lenity Does Not Apply
As a final point, the Majority concludes that if the canons of statutory construction lend toward two different interpretations, then we are left with an ambiguous statute and the rule of lenity would apply, such that we would be compelled to construe “and” using its conjunctive approach. The Majority is wrong.
“The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused.” United States v. Watts, 896 F.3d 1245, 1255 (11th Cir. 2018) (quotation omitted). When the rule of lenity applies, it prevents a court from “giv[ing] the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, 571 U.S. 204, 216 (2014).
“The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of [the rule of lenity], for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998). The Supreme Court has affirmed repeatedly that the mere fact that canons of statutory construction may point in different directions or that it is possible to articulate a narrower construction of a statute do not render a statute ambiguous for purposes of invoking the rule of lenity. Moskal v. United States, 498 U.S. 103, 108 (1990); United States v. Shabani, 513 U.S. 10, 17 (1994); Smith v. United States, 508 U.S. 223, 239 (1993). Similarly, “[a] statute is not ‘ambiguous’ for purposes of lenity merely because there is a division of judicial authority over its proper construction.” Reno v. Koray, 515 U.S. 50, 64 (1995) (quotations omitted). Rather, the rule of lenity is reserved for when “grievous ambiguity” remains “even after resort to ‘the language and structure, legislative history, and motivating policies of the statute.‘” Moskal, 498 U.S. at 108 (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)); see also Barber v. Thomas, 560 U.S. 474, 488 (2010); Chapman v. United States, 500 U.S. 453, 463 (1991); Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring). A grievous ambiguity exists when, after applying all the tools of statutory
The Majority faithfully cites the grievous ambiguity standard, but then applies it incorrectly. According to the Majority, even though—in its view—numerous tools of statutory construction point toward its interpretation, if the canon against surplusage points toward the government‘s interpretation, then the rule of lenity would apply and require us to give the word “and” its ordinary, conjunctive meaning. But the grievous ambiguity standard is not the toothless one that the Majority applies. The rule of lenity has no application in the absence of grievous ambiguity in the statute, and one tool of statutory construction pointing in a different direction does not mean that there is a grievous ambiguity in the statute. Moskal, 498 U.S. at 108; Shabani, 513 U.S. at 17; Smith, 508 U.S. at 239. Here, after considering the structure and context of the statute and applying the traditional tools of statutory construction, a best reading of “and” in
E. Conclusion
A disjunctive interpretation of “and” in
BRASHER, Circuit Judge, Dissenting:
I join Judge Branch‘s dissent. I write separately to make a comment on criminal-history-based sentencing and to give some advice to district judges about how to deal with the majority‘s decision.
Federal sentencing policy is, to a significant extent, based on the idea that we should impose harsher sentences on people with more significant crimes in their past. The upshot is that two people can commit the same crime in the same way in the same place on the same day, but they will receive markedly different sentences if they have committed a different number or type of crimes in the past. This policy is built into the sentencing guidelines, where
There is no question that this sentencing scheme is constitutional. See Ewing v. California, 538 U.S. 11 (2003). People who commit more serious and more violent crimes in the past are likely to commit more serious and more violent crimes in the future. And statistics tell us that it takes a longer sentence to deter and rehabilitate a repeat criminal as compared to a first-time offender. So it is perfectly rational to account for an offender‘s criminal history when imposing a sentence for a new offense.
But I am concerned that the federal courts are increasingly turning this rational system into an arbitrary and capricious game of gotcha. The judicial elimination of the residual clause of the Armed Career Criminal Act, for instance, has led courts to impose its mandatory minimums in a difficult-to-justify way. Here‘s an example: For purposes of counting previous convictions towards the mandatory minimum, a court must treat a previous conviction for an attempted robbery as nonviolent, even if the victim is shot and killed during the attempt; but a court must treat a previous conviction for a successful robbery as violent, even if it was committed with a handwritten note. See United States v. Taylor, 142 S. Ct. 2015 (2022). I could go on with more examples, but the problem has already been catalogued elsewhere. See generally id. at 2026 (Thomas, J., dissenting); Borden v. United States, 141 S. Ct. 1817, 1855-57 (2021) (Kavanaugh, J., dissenting).
Now our Court has adopted a reading of the safety valve that makes the most violent and recidivist criminals eligible for a sentence below the mandatory minimum. If two people commit the same crime, why should the one with decades of 3-point violent felony convictions receive a lower sentence than the one whose past crimes are a single 3-point nonviolent offense and a 2-point violent misdemeanor? See Rosenbaum, Concurring Op., at 3–5; Branch, Dissenting Op., at 23-26; United States v. Pace, 48 F.4th 741, 755 (7th Cir. 2022). The majority opinion has no justification for such a result, and neither do I. Under the Court‘s decision, only an unusually hapless defendant with an odd combination of past offenses will be subject to a mandatory minimum because of his criminal history. I fear that, if we keep going down this path, our criminal-history-based sentencing scheme will become so arbitrary as to raise serious questions about its constitutionality. See Chapman v. United States, 500 U.S. 453, 464–65 (1991) (under the Due Process Clause of the Fifth Amendment, a sentence may not be based “on an arbitrary distinction“). And I think this possibility is another point in favor of Judge Branch‘s perfectly reasonable reading of the statute.
With all of that in mind, here is my advice for district judges: The Court‘s opinion gives you discretion to sentence offenders with serious and violent criminal histories to sentences below the applicable mandatory minimum. But you shouldn‘t do it. Your job is getting more difficult. Because of this opinion, you will have to calculate sentencing ranges under the guidelines that presume some offenders will be eligible for significantly lower sentences than they should justifiably receive. See United States v. Quirante, 486 F.3d 1273, 1275-76 (11th Cir. 2007). But no one in the majority has suggested that you should actually sentence repeat criminals as if they were first-time offenders. “[S]afety valve eligibility does not guarantee [a defendant] a below-statutory minimum sentence; it just gives the court the opportunity to sentence below the minimum if it believes it is appropriate.” United States v. Owens, 38 F.4th 1, 3 (8th Cir. 2022). “[A] court compelled to disregard a mandatory minimum sentence in favor of the guidelines range” by the safety valve “may vary upward to and even past the mandatory minimum point after considering the § 3553(a) factors—so long as the final sentence is reasonable.” Quirante, 486 F.3d at 1276.
The Court‘s decision deepens a circuit split that is sure to attract the attention of the Supreme Court. In the meantime, if a criminal defendant has a serious 3-point offense or a 2-point violent offense in his past, a district judge should carefully consider exercising his or her discretion to impose a sentence at the otherwise applicable mandatory minimum.
1 felony drug offense has become final, such person
2 shall be sentenced to a term of imprisonment of not
3 less than 20 years‘’ and inserting ‘‘If any person
4 commits such a violation after a prior conviction for
5 a serious drug felony or serious violent felony has
6 become final, such person shall be sentenced to a
7 term of imprisonment of not less than 15 years‘‘;
8 and
9 (2) in paragraph (2), in the matter following
10 subparagraph (H), by striking ‘‘felony drug offense‘’
11 and inserting ‘‘serious drug felony or serious violent
12 felony‘‘.
13 (c) APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section, shall
15 apply to any offense that was committed before the date
16 of enactment of this Act, if a sentence for the offense has
17 not been imposed as of such date of enactment.
SEC. 402. BROADENING OF EXISTING SAFETY VALVE.
19 (a) AMENDMENTS.—Section 3553 of title 18, United
20 States Code, is amended—
21 (1) in subsection (f)—
22 (A) in the matter preceding paragraph
23 (1)—
24 (i) by striking ‘‘or section 1010‘’ and
25 inserting ‘‘, section 1010‘‘; and
1 (ii) by inserting ‘‘, or section 70503 or
2 70506 of title 46‘’ after ‘‘963)‘‘;
3 (B) by striking paragraph (1) and inserting the following:
5 ‘‘(1) the defendant does not have—
6 ‘‘(A) more than 4 criminal history points,
7 excluding any criminal history points resulting
8 from a 1-point offense, as determined under the
9 sentencing guidelines;
10 ‘‘(B) a prior 3-point offense, as determined
11 under the sentencing guidelines; and
12 ‘‘(C) a prior 2-point violent offense, as determined under the sentencing guidelines;‘‘; and
14 (C) by adding at the end the following:
15 ‘‘Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the
17 defendant unless the information relates to a violent offense.‘‘; and
19 (2) by adding at the end the following:
20 ‘‘(g) INADEQUACY OF CRIMINAL HISTORY.—
21 ‘‘(1) IN GENERAL.—If subsection (f) does not
22 apply to a defendant because the defendant does not
23 meet the requirements
24 (relating to criminal history), the court may, upon
25 prior notice to the Government, waive subsection
1 (f)(1) if the court specifies in writing the specific
2 reasons why reliable information indicates that excluding the defendant pursuant to subsection (f)(1)
4 substantially overrepresents the seriousness of the
5 defendant‘s criminal history or the likelihood that
6 the defendant will commit other crimes.
7 ‘‘(2) PROHIBITION.—This subsection shall not
8 apply to any defendant who has been convicted of a
9 serious drug felony or a serious violent felony, as
10 those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
12 ‘‘(h) DEFINITION OF VIOLENT OFFENSE.—As used
13 in this section, the term ‘violent offense’ means a crime
14 of violence, as defined in section 16, that is punishable
15 by imprisonment.‘‘.
16 (b) APPLICABILITY.—The amendments made by this
17 section shall apply only to a conviction entered on or after
18 the date of enactment of this Act.
SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE.
21 (a) IN GENERAL.—Section 924(c)(1)(C) of title 18,
22 United States Code, is amended, in the matter preceding
23 clause (i), by striking ‘‘second or subsequent conviction
24 under this subsection‘’ and inserting ‘‘violation of this sub
TITLE III—MISCELLANEOUS
SEC. 301. ALPHABETIZATION.
(a) LETTER-BY-LETTER METHOD.—A definition or other term comprising 2 or more words is alphabetized using the letter-by-letter method. For example, “newborn” precedes “New England“. Hyphens, slashes, and apostrophes are ignored.
(b) NUMERALS.—A term beginning with a numeral (e.g. “8-hour workday“) precedes all terms beginning with a letter.
SEC. 302. AND; OR.
(a) IN GENERAL.—In a list of criteria that specifies a class of things—
- use “or” between the next-to-last criterion and the last criterion to indicate that a thing is included in the class if it meets 1 or more of the criteria; and
- use “and” to indicate that a thing is included in the class only if it meets all of the criteria.
(b) DETERMINING THE CORRECT CONJUNCTION FROM CONTEXT.—In most contexts, the correct conjunction can readily be determined from the context, that is, the sense of the legislation and the structure in which the list appears.
(c) STATEMENTS IN THE NEGATIVE.—In a statement in the negative, “or” is almost always the correct word (e.g. The term “permitted purpose” does not include training teachers or purchasing books.).
(d) PARTICULAR ISSUES.—
- LISTS OF PERMISSIBLE ACTIVITIES.—
- PROBLEM.—
- IN GENERAL.—In text that provides authority for a person to carry out several activities, it may be unclear whether the person may carry out only 1 (or fewer than all) of the activities.
- EXAMPLE.—The Secretary may make grants to eligible schools to train teachers and purchase books.
- SOLUTIONS.—
- ONE OR MORE ACTIVITIES.—To permit a person to carry out 1 or more of the activities, use “or” as in the following example: “The Secretary may make grants to eligible schools. Each school shall use the grant to train teachers or purchase books.“.
-
ALL ACTIVITIES.—To permit a person to carry out all (and not fewer than all) of the activities, use “and” as in the following example: “The Secretary may make a grant to an eligible school. The
- PROBLEM.—
COMMITTEE on the JUDICIARY
CHAIRMAN CHUCK GRASSLEY
The First Step Act of 2018 (S.3649) – as introduced
Grassley, Durbin, Lee, Whitehouse, Graham, Booker, Scott, Leahy, Ernst, Klobuchar, Moran, Coons
Reducing Federal Recidivism and Crime
- Provides for increased programming designed to reduce recidivism and provides incentives for participation in those programs.
- Implements a post-sentencing dynamic risk assessment system to determine an inmate‘s risk of committing more crimes upon release from prison.
- Establishes eligibility criteria for and incentivizes participation in evidence-based recidivism reduction programs by allowing prisoners to earn time credits for prerelease custody (defined as residential reentry centers or, for low risk prisoners, home confinement). For example, a prisoner may earn 10 days of time credit for every 30 days of successful participation in a recidivism-reduction program or other eligible activity. However, only prisoners classified as minimum or low risk may redeem these time credits to reduce their sentence.
- In addition to the exclusion preventing all but those classified as minimum or low risk from redeeming time credits, the bill makes clear that violent and high-risk criminals convicted of certain serious offenses are ineligible for the pre-release custody program, including those convicted of crimes relating to terrorism, murder, sexual exploitation of children, espionage, violent firearms offenses, or those that are organizers, leaders, managers, supervisors in the fentanyl and heroin drug trade. Prisoners are also ineligible to apply time credits if subject to a final order of removal under the Immigration and Nationality Act.
Preparing Inmates for Successful Return to Society
- Provides more meaningful employment and training opportunities for inmates by expanding the federal prison industries program.
- Requires the Bureau of Prisons (BOP) to submit a report and evaluation of the current pilot program to treat heroin and opioid abuse through medication—assisted treatment.
- Extends the compassionate elderly release provision from the Second Chance Act that allows the prisoner to request for his or her compassionate release if he or she meets the requirements set out in the law.
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Codifies BOP‘s rules that generally prohibit the use of restraints on pregnant inmates except those who are an immediate and credible flight risk or threat of harm to herself or others. - Mandates inmates be housed no more than 500 miles from the prisoner‘s primary residence and grants authority for prisoners to save earnings in an escrow account used for pre-release expenses, such as transportation and housing.
- Clarifies the formula by which the BOP calculates good time credit (time off for good behavior) in line with original Congressional intent. Under current law, prisoners can earn up to 54 days per year for good behavior in prison, but technicalities in the law keep prisoners on early release from utilizing those days.
Enhancing Prison Security and Officer Safety
- Requires the Director of BOP to provide a secure storage area outside the secure perimeter for employees to store firearms or to allow for vehicle lock boxes for firearms.
- Directs the Director of BOP to provide de-escalation training as part of the regular training requirements of correctional officers.
Reforming Federal Criminal Sentencing
- Clarification of
18 U.S.C. § 924(c) – S.1917 Section 104 applied prospectively: This section clarifies that the enhanced mandatory minimum sentence for using a firearm during a crime of violence or drug crime is limited to offenders who have previously been convicted and served a sentence for such an offense. Previously the courts interpreted this law intended for repeat offenders as applying also to first-time offenders, sometimes requiring courts to impose overly harsh, decades-long sentences for charges brought in a single indictment. - Reform to
21 U.S.C. 841 &851 - S.1917 Section 101 applied prospectively: The section focuses the toughest criminal sentencing on serious drug felons and expands the definition of serious violent felons to enhance the sentences of violent criminals. Maximum penalties remain in place. Mandatory minimum penalties are reduced to permit some additional judicial discretion, but not eliminated. The three-strike penalty is reduced from life imprisonment to 25 years, and the 20-year minimum is reduced to 15 years. But while the mandatory minimum for the three-strike penalty is reduced, it is also adjusted to apply to the worst criminals—including, for the first time, to violent felons. The third-strike penalty currently applies only to offenders with prior drug felonies. This penalty now applies to all offenders convicted of a serious drug felony or a serious violent felony. - Expansion of existing federal safety valve for mandatory minimum sentencing – S.1917 Section 102 applied prospectively: This section expands the existing safety valve to include offenders with up to four criminal history points, excluding 1-point offenses, such as minor misdemeanors. However, offenders with prior “3 point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses (violent offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial finding that those prior offenses substantially overstate the defendant‘s
criminal history and danger of recidivism. Consistent with existing law, a judge cannot apply the safety valve unless the defendant has fully cooperated with law enforcement and has not used or threatened to use violence or firearms, caused death or serious bodily injury, or was an organizer, leader, manager, or supervisor of others in connection with the offense. - Retroactive Application of the Fair Sentencing Act of 2010 – S.1917 Section 105: This section allows prisoners sentenced before the Fair Sentencing Act of 2010 reduced the 100-to-1 disparity in sentencing between crack and powder cocaine to petition the court for an individualized review of their case. This reform would bring sentences imposed prior to 2010 in line with sentences imposed after the Fair Sentencing Act was passed.
Other Reforms
- Immigration Fix. The bill clarifies that prisoners subject to a final order of removal under
8 U.S.C. 1101 , including illegal immigrants, are not eligible to apply time credits. - Fentanyl and Heroin Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving time credits under the First Step Act who were convicted of fentanyl or heroin offenses involving 5 and 10 year mandatory minimums and who were organizers, leaders, managers or supervisors in the offense.
- Firearm Offense Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving time credits under the First Step Act who brandish or discharge firearms. Those who committed a felony with possession of a firearm are also excluded if they are repeat offenders who have already taken advantage of recidivism programming under the First Step Act.
- Crimes Against Children Exclusion. Offenders who have committed serious crimes against children will not be able to shorten their sentences. This includes anyone convicted of sex trafficking of children (
18 U.S.C. § 1591 ), sexual abuse of a child (18 U.S.C. §§ 2243 ,2244(c) ), child pornography offenses (18 U.S.C. §§ 2251 ,2252 ,2252A ,2260 ), buying and selling of children (18 U.S.C. § 2251A ), or the recruitment of child soldiers (18 U.S.C. § 2442 ).