Volume 30, Issue 6: This Report summarizes opinions issued on February 22 and 28, 2023 (Part I); and cases granted review on February 27 and March 6, 2023 (Part II).
Case Granted Review: Pulsifer v. United States, 22-340
Pulsifer v. United States, 22-340. This case involves 18 U.S.C. §3553(f), the “safety valve” provision of the federal sentencing statute. If a defendant satisfies the five sets of criteria in subsections (f)(1) through (f)(5), the district court is not required to impose a mandatory-minimum sentence. A defendant meets (f)(1) if he “does not have—(A) more than 4 criminal history points . . .; (B) a prior 3-point offense . . .; and (C) a prior 2-point violent offense.” 18 U.S.C. §3553(f)(1) (emphasis added). The Court will decide whether a defendant satisfies (f)(1) only if he does not have all three of (A), (B), and (C).
Petitioner Mark Pulsifer pleaded guilty to distributing 50 grams or more of methamphetamine. Given his criminal history, he faced a mandatory-minimum sentence of 15 years’ imprisonment. At sentencing, Pulsifer argued that he was entitled to safety-valve relief under §3553(f). Regarding (f)(1), Pulsifer acknowledged that he did not meet (A) or (B), because has more than 4 criminal history points and two prior 3-point offenses. But Pulsifer does not have a prior 2-point violent offense, as described in (C). Reading the statute as disqualifying a defendant only if he has all three of (A), (B), and (C), Pulsifer contended that he satisfied (f)(1). The district court rejected Pulsifer’s argument and sentenced him to 162 months of imprisonment after applying the mandatory minimum. The Eighth Circuit affirmed. 39 F.4th 1018.
The Eighth Circuit interpreted §3553(f)(1) as precluding eligibility for safety-valve relief if the defendant has any one of (A), (B), or (C). The court agreed with Pulsifer that the statute uses the word “and” in the conjunctive. But it favored a “distributive” reading of “and” over a “joint” reading, meaning “that the requirement that a defendant ‘does not have’ certain elements of criminal history is distributed across the three subsections, and a defendant is ineligible if he fails any one of the three conditions.” The court reasoned that there was a “strong textual basis to prefer a distributive reading of ‘and’ in §3553(f)” because if “and” is read jointly, subsection (A) is rendered superfluous. That is, under a joint reading, a “defendant who has a prior three-point offense under subsection (B) and a prior two-point violent offense under subsection (C) would always meet the criterion in subsection (A), because he would always have more than four criminal history points.” “Only the distributive interpretation avoids surplusage,” the court concluded.
Pulsifer argues that “and” means “and,” such that “a defendant remains eligible for safety-valve relief unless he has (A) more than 4 points, (B) a 3-point offense, and (C) a 2-point violent offense.” He submits that it is the ordinary-English view of the word “and.” Pulsifer also invokes the “conjunctive negative proof,” under which the phrase “you must not do A, B, and C” forbids doing the combination of all three things. Further, he utilizes the “presumption of consistent usage”—that “and” in one place in the statute means the same thing as “and” somewhere else.” Pulsifer notes that in “§3553(f), Congress used ‘and’ to join both subsections (2) through (5) and conditions (A) through (C) in subsection (1)—all in the very same sentence.” He questions, “Why would ‘and’ mean ‘or’ in (f)(1) but ‘and’ when connecting (f)(1) through (f)(5)?” As for whether his reading of the statute creates surplusage, Pulsifer contends that that canon cannot override the “ordinary, plain meaning” of “and.” Finally, he maintains that the Court must resolve any ambiguity in the statute in his favor under the rule of lenity.
The Government endorses the Eighth Circuit’s analysis. It argues that “Section 3553(f)(1)’s prefatory phrase—“the defendant does not have”—is best read to modify subparagraphs (A), (B), and (C) ‘severally.’” In other words, “a defendant is eligible for safety-valve relief if he does not have (A), does not have (B), and does not have (C).” Like the Eighth Circuit, the Government invokes the surplusage canon to support its interpretation of the statute. The Government also suggests that Pulsifer’s reading would lead to absurd results, as a defendant with a couple dozen criminal-history points would be eligible for safety-valve relief so long as he does not have a prior two-point violent offense.