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]
WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which WILSON, JILL PRYOR, NEWSOM, LUCK, and LAGOA, Circuit Judges, join.
ROSENBAUM, Circuit Judge, filed an opinion concurring in the judgment.
NEWSOM, Circuit Judge, filed a concurring opinion, in which LAGOA, Circuit Judge, joins.
JORDAN, Circuit Judge, filed a dissenting opinion.
BRANCH, Circuit Judge, filed a dissenting opinion, in which GRANT and BRASHER, Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II, III.A, and III.B.
BRASHER, Circuit Judge, filed a dissenting opinion.
WILLIAM PRYOR, Chief Judge:
The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.”
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
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
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)
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 рrinciple 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 three prohibited conditions. See id.; Lopez, 998 F.3d at 436 (“[T]he Senate‘s own legislative drafting manual tells us that ‘and’ is used as a conjunctive in statutes structured like [section] 3553(f)(1).“).
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. Palomares, 52 F.4th at 643–45; 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
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 distributе 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—
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
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 offеnses 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.
To be sure, our interpretation requires reading “prior 3-point” and “2-point violent offense[s],”
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.”
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, 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
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 subseсtions necessary to qualify for safety-valve relief. See
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
The government also mentions the possibility that a conjunctive reading of “and” would disqualify some defendants while “allow[ing] more serious offenders to obtain relief.” And our concurring colleague offers a specific hypothetical example about an offender who has several violent three-point offenses but no violent two-point offenses. Rosenbaum Concurring at 3. Notably, one of our sister circuits, which shares our view of the conjunctive reading, has rejected our concurring colleague‘s reading. See Lopez, 998 F.3d at 440 n.10 (rejecting this interpretation as “nonsensical” because the section 3553(f)(1)(C) requirement for a two-point violent offense can be fulfilled by a three-point offense). But we need not—and do not—decide specific applications of the statute to offenders who are not before us.
Neither the government‘s interpretation nor our concurring colleague‘s specific example would make the ordinary meaning of the statute absurd. “Congress often legislates at the macro level, not on a micro scale.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1229 (11th Cir. 2001). One consequence of this approach
4. The Legislative History Is Irrelevant.
The government argues that the legislative history supports its interpretation, but we agree with its alternative argument that “[t]here is no need to consult [that] history.” Assuming legislative history plays a role in modern statutory interpretation, see Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969 (11th Cir. 2016) (en banc), that role is limited to “shed[ding] . . . light on the enacting Legislature‘s understanding of otherwise ambiguous terms,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005). Because the meaning of “and” in section 3553(f)(1) is unambiguous, legislative history has no role to play here. And even if there were ambiguity, “the need for fair warning” for an accused,
5. The Rule of Lenity Counsels Against the Government‘s Interpretation.
If any “grievous ambiguity” remained, the rule of lenity would resolve it. See Barber v. Thomas, 560 U.S. 474, 488 (2010) (internal quotation marks omitted). “The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused.” United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010) (Pryor, J., concurring). The rule applies “not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Id. at 717 (quoting Bifulco v. United States, 447 U.S. 381, 387 (1980)). Our dissenting colleagues dismiss the rule of lenity by maintaining that their interpretation resolves any ambiguity. Branch Dissenting at 27–28. But our dissenting colleagues resolve this ambiguity only by ignoring the canons that point in a different direction. See SCALIA & GARNER, supra, § 3, at 59 (“Principles of interpretation are guides to solving the puzzle of textual meaning, and as in any good mystery, different clues often point in different directions.“). Even if our dissenting colleagues and the government were correct that our interpretation rendered part of section 3553(f)(1) superfluous, we would be faced with an ambiguous statute: ordinary meaning, the presumption of consistent usage,
IV. CONCLUSION
We AFFIRM Garcon‘s sentence.
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 interрretation 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-
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.” First Step Act of 2018, Pub. L. No. 115-391, § 402(a)(1), 132 Stat. 5194, 5221 (2018) (amending
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
Besides the dissonance of that result, I am also unpersuaded by the Majority Opinion‘s explanation for why its reading 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 though I personally don‘t find the Majority Opinion‘s surplusage explanation satisfying, I also can‘t say it‘s wrong beyond question.
Plus, the Majority Opinion is, of course, correct when it emphasizes that “and” is a conjunctive word. Not only does the statute use the word “and” to connect all three disqualifying factors under
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
Though the cases where the rule of lenity applies are few and far between—after all, it is a rule of last resort that applies only after exhausting the canons of statutory construction still leaves us with a “grievously ambiguous” statute—§ 3553(f)(1) is one of the rare statutes that require the rule‘s application. And when we apply the rule of lenity here, we must conclude that a defendant is ineligible for safety-valve relief under
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
The government‘s anti-surplusage argument here—which, I‘ll admit, is not without some force—violates this cardinal command. It would have us mechanically apply the anti-surplusage canon at the expense of
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
The criminаl 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
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,
“[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
II
The original “safety valve” provision, enacted by Congress in 1994, allowed district courts to sentence certain narcotics defendants without regard to an otherwise-applicable statutory minimum if certain criteria were established. One of those criteria was that the defendant did “not have more than 1 criminal history point, as determined under the sentencing guidelines.” Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-33, Title VIII, § 80001, 108 Stat. 1796 (Sept. 13, 1994). “The intent, clear from the face of the [provision], [wa]s to provide a ‘safety valve’ so that less culpable offenders [we]re not subject to mandatory minimums.” United States v. McFarlane, 81 F.3d 1013, 1014 (11th Cir. 1996). For almost a quarter of a century, the criminal history criteria of the “safety valve” provision remained unchanged.
A
In November of 2018, Senator Chuck Grassley—together with 11 fellow Senators serving as original co-sponsors—introduced a bill in the Senate that would, as relevant here, change the criminal history criteria for “safety valve” relief. That bill, as drafted, did not become law. But its proposed language for the revised version of
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.
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 valve” relief only if he has more than 4 criminal history points (subsection (f)(1)(A)), and a 3-point offense (subsection (f)(1)(B)), and a 2-point violent offense (subsection (f)(1)(C))—then subsection (f)(1)(A) is rendered superfluous. Why? Because a defendant who has both a 3-point offense and a violent 2-point offense—two of the three required criteria according to the majority—necessarily has more than 4 criminal history points. No matter what math one uses, 3 + 2 = 5, and subsection (f)(1)(A) becomes meaningless.7
We “are obliged to give effect, if possible, to every word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), and reading “and” disjunctively seems like a small linguistic price to pay to avoid making subsection (f)(1)(A) superfluous. See 1A Norman Singer, Sutherland on Statutory Construction § 21:14 (7th ed. & Nov. 2020 update). Given the choices available, it is better to read a word in its non-usual (but legally permissible) sense than to render a statutory provision meaningless. As we have done
III
As I read
UNITED STATES OF AMERICA v. JULIAN GARCON
No. 19-14650
United States Court of Appeals For the Eleventh Circuit
December 06, 2022
The safety-valve provision of the First Step Act permits a sentencing court to disregard an otherwise applicable statutory minimum sentence for qualifying defendants. See
(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—
I. Background
The facts surrounding Garcon‘s underlying conviction are not relevant to this appeal. Suffice it to say, Garcon pleaded guilty to a drug offense which carried a statutory minimum sentence. In an attempt to avoid the statutory minimum, Garcon sought refuge in the safety-valve provision of § 3553(f), as amended by the First Step Act of 2018, which instructs district courts to impose a sentence pursuant to the Sentencing Guidelines without regard to any applicable statutory minimum sentence if the court finds that the defendant meets certain requirements.
As amended by the First Step Act of 2018, the safety-valve provision provides:
Notwithstanding any other provision of law, in the case of an offense under [various drug-related statutes], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission . . . without regard to any
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 сonjunctive, meaning that a defendant is eligible for safety-valve relief so long as he does not have all three specified criminal history characteristics in § 3553(f)(1)(A)–(C). The government, on the other hand, argued that if a defendant has any one of the three criminal history
The government appealed, arguing that, when examined in the broader context of the statute as whole, the only reasonable interpretation was that the “and” in § 3553(f)(1) operated disjunctively. A unanimous panel of this Court held that the plain text of the statute was clear because context and the canon against surplusage dictated that the “and” in § 3553(f)(1) did not bear its ordinary conjunctive meaning. United States v. Garcon, 997 F.3d 1301, 1304–06 (11th Cir. 2021), vacated, 23 F.4th 1334 (11th Cir. 2022). Rather, textual and structural indicators revealed that the “and” is disjunctive. Id. at 1305–06. Garcon petitioned for rehearing en banc. This Court voted to grant rehearing en banc, vacated the panel opinion, and directed the parties to brief one question: “Did the district court err in concluding that defendant Julian Garcon met the safety-valve-eligibility requirement set forth at
Before the en banc court, the government argued that the “and” is conjunctive but distributive and that the preceding “does not have” qualifier in § 3553(f)(1) independently applied to each of
The Majority now holds that the “and” in § 3553(f)(1) is conjunctive, reasoning that the conjunctive meaning is compelled by the plain text of the statute under the ordinary meaning canon of statutory construction and the canon of consistent usage. Under the Majority‘s holding, defendants like Garcon, who possess one or two of the disqualifying criminal history characteristics in § 3553(f)(1) are eligible for safety-valve relief—i.e., to be sentenced below an otherwise applicable statutory minimum—as long as the defendant does not have all three criminal history characteristics. In other words, the Majority‘s interpretation requires that in all cases a district court impose a sentence consistent with the Sentencing Guidelines, without regard to any statutory minimum sentence, if the district court finds that “the defendant does not have” “as determined under the sentencing guidelines” more than 4 criminal history points, excluding 1-point offenses, AND a prior 3-point offense, AND a prior 2-point violent offense.
But giving “and” in § 3553(f)(1) a conjunctive meaning as the Majority does violates the text of the statute and renders an entire subsection superfluous. Accordingly, I would hold that, considering the context and structure of the statute, the best
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 § 3553(f)(1), our “starting point . . . is the language of the statute itself.” Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980); see also United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999) (“The starting point for all statutory interpretation is the language of the statute itself.“).
In this case, we must interpret how the word “and” operates in the eligibility checklist in
Pursuant to the ordinary-meaning canon—the “most fundamental semantic rule of interpretation“—words are presumed to bear “their ordinary, everyday meanings.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012). The Majority is certainly correct that “and” is ordinarily defined as “along with or together with“—carrying with it a conjunctive meaning. See And, Webster‘s Third New Int‘l
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. (quoting United States v. Fisk, 70 U.S. 445, 447 (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.
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).
Consequently, I agree with the Seventh Circuit that the conjunctive interpretation advanced by Garcon and adopted by the
B. The Majority‘s conjunctive interpretation renders parts of the statute superfluous
As explained previously, reading “and” in a conjunctive (non-distributive) sense as the Majority does renders subsection (A) superfluous because a defendant who has a prior 3-point offense under subsection (B) and a prior 2-point violent offense under subsection (C) will necessarily have more than 4 criminal history points for purposes of subsection (A). No one disputes that 3+2=5.
Second, the Majority‘s theory that subsection (A) of § 3553(f)(1) is not superfluous if “and” is read conjunctively is premised on the idea that Congress introduced a new concept of “prior offense” in § 3553(f)(1) because the sentencing guidelines are framed around “prior sentences,” not “prior offenses.” I disagree. The sentencing guidelines clearly contemplate that a “prior sentence” is synonymous with and shorthand for a “prior offense.” The Majority is ignoring that the guidelines define “prior sentence” to mean “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1) (emphasis added). In other words, a “prior sentence” previously imposed for conduct not part of the instant offense is a “prior offense.”
Indeed, it is clear from other sections of the guidelines that the term “prior sentence” is synonymous with a “prior offense.” See, e.g., U.S.S.G. § 2L1.2 cmt. (n.6) (explaining that a departure based on the seriousness of a “prior offense” may be warranted in certain circumstances, including when “the prior conviction is too remote to receive criminal history points (see § 4A1.2(e)))“; Id. § 4A1.2(a)(2) (explaining that “[p]rior sentences always are counted separately if the sentences were imposed for offenses that werе separated by an intervening arrest (i.e., the defendant is arrested for
Third, the Majority has crafted an unusual approach that would involve assigning criminal history points to a defendant‘s “prior offense” where that offense did not otherwise receive criminal history points “as determined under the sentencing guidelines.” But the statute points specifically to the sentencing guidelines, which do no such thing. Rather, Chapter 4 of the guidelines determines, for all circumstances, whether a prior offense receives criminal history points, and it directs that certain prior offenses are not counted. Section 4A1.1 specifies when points are added to “prior sentences” for purposes of calculating a defendant‘s criminal history score:
The total points from subsections (a) through (e) determine the criminal history category in the Sentencing Table in Chapter Five, Part A.
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
(e) Add 1 рoint for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.
(emphasis added). And § 4A1.2 and the commentary to § 4A1.1—which operate in tandem and must be read together—provide when sentences are counted or not counted for purposes of § 4A1.1(a)–(e). U.S.S.G. § 4A1.1 cmt. (n.1); see also United States v. Walker, 912 F.2d 1365, 1366 (11th Cir. 1990) (holding that “sections 4A1.1 and 4A1.2 must be read together“). Those rules provide that sentences of a certain age are not counted, U.S.S.G. § 4A1.2(e), and that multiple prior sentences imposed on the same day or stemming from the same charging document are treated as a single sentence, id. § 4A1.2(a)(2). Thus, the sentencing guidelines
By including the language “as determined under the sentencing guidelines” in subsections (A), (B), and (C), Congress plainly directed courts to consult and follow the directives of the sentencing guidelines when determining whether the defendant has the disqualifying criminal history specified in § 3553(f)(1)(A)–(C). Based on the statutory language and the text of the guidelines, I do not believe that Congress introduced a new concept of “prior offense” in § 3553(f)(1). Rather, I agree with the Eighth Circuit that Congress‘s use of “prior offense” in the statute was simply “a form of common sense-shorthand . . . that incorporated the determinations of criminal history points under USSG § 4A1.1.” Pulsifer, 39 F.4th at 1020. Consequently, the Majority‘s explanation for why subsection (A) is not superfluous under its conjunctive reading of the “and” in § 3553(f)(1) cannot stand, and it is left with a significant surplusage problem.
C. In addition to surplusage, the Majority‘s interpretation presents other fundamental problems
Surplusage is not the only problem with the Majority‘s interpretation. In order to accept the Majority‘s sometimes-we-count-sometimes-we-don‘t theory, we would hаve 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
Although the Majority suggests that the government‘s concern that serious, repeat violent offenders will qualify for safety
Accordingly, although the ordinary meaning and the consistent usage canons of statutory construction advanced by the Majority may counsel in favor of its conjunctive interpretation, those principles of interpretation are cabined by the statutory context and countered by the canon against surplusage, which point us in a different direction. A disjunctive interpretation, by contrast, gives full effect to each of the provisions in § 3553(f)(1),
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
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
E. Conclusion
A disjunctive interpretation of “and” in § 3553(f)(1) is supported by the traditional rules of statutory construction and gives meaning to every clause of the statute (without requiring the mental gymnastics or rewriting of the statute that the Majority‘s conjunctive interpretation requires). Accordingly, I would hold that the “and” in § 3553(f)(1) is disjunctive. However, regardless of whether the court reads the “and” in § 3553(f)(1) as disjunctive or distributive, the best reading of § 3553(f)(1) is that it bars safety-
I join Judge Branch‘s dissent. I write separately to make a comment on criminal-history-based sentencing and to give some advice to district judges about how to deal with the majority‘s decision.
Federal sentencing policy is, to a significant extent, based on the idea that we should impose harsher sentences on people with more significant crimes in their past. The upshot is that two people can commit the same crime in the same way in the same place on the same day, but they will receive markedly different sentences if they have committed a different number or type of crimes in the past. This policy is built into the sentencing guidelines, where the severity of sentences increases based on the accumulation of criminal history points. See
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
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
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
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.
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, “new-born” 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—
(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.
(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 appeаrs.
(c) STATEMENTS IN THE NEGATIVE.—In a statement in the negative, “or” is almost always the correct
(d) PARTICULAR ISSUES.—
(1) LISTS OF PERMISSIBLE ACTIVITIES.—
(A) PROBLEM.—
(i) 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.
(ii) EXAMPLE.—The Secretary may make grants to eligible schools to train teachers and purchase books.
(B) SOLUTIONS.—
(i) 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.“.
(ii) 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 grant to train teachers or purchase books.“.
Notes
As the Fifth Circuit explained in Palomares, § 3553(f) as a whole “contains a list of affirmative requirements” that a defendant must satisfy to be eligible for safety-valve relief. Palomares, 52 F.4th at 644. But the statute “opens with a negative prefatory phrase coupled with an em-dash (‘does not have—‘) followed by a conjunctive list (A, B, and C).” Id. at 642. Thus, the grammatical structure of § 3553(f) distributes the phrase “‘does not have‘” to “each item in the list (does not have (A), does not have (B), and does not have (C)).” Id. at 643. I agree with the Fifth Circuit that this distributive interpretation is a natural reading of the statute, and it avoids violating the canon against surplusage.