Today the U.S. Supreme Court granted certiorari in Pulsifer v. United States, No. 21-1609 (Feb. 27, 2023) (cert. granted), on the following question:
The "safety valve" provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria. See 18 U.S.C. § 3553(f)(1)-(5). Congress amended the first set of criteria, in§ 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he "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." 18 U.S.C. § 3553(f)(1) (emphasis added).
The question presented is whether the "and" in 18 U.S.C. § 3553(f)(1) means "and," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the "and" means "or," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold).
This issue has deeply divided the circuits. Pulsifer’s case comes from the Eighth Circuit. Like the Eighth, the Fifth, Sixth, and Seventh Circuits have recognized that § 3553(f)(1)’s prefatory phrase distributes to each paragraph, so that a defendant is eligible for safety-valve relief only if he does not have more than 4 criminal history points as described in subparagraph (A). See United States v. Palomares, 52 F.4th 640, 643-644 (5th Cir. 2022), petition for cert. pending, No. 22-6391 (filed Dec. 21, 2022); United States v. Haynes, 55 F.4th 1075, 1078-1080 (6th Cir. 2022); United States v. Pace, 48 F.4th 741, 754 (7th Cir. 2022).
The Fourth, Ninth and Eleventh Circuits, however, have adopted Pulsifer’s contrary interpretation, under which a defendant can be eligible for safety-valve relief even if he does not fact have one (or two) of the criminal history factors specified in subparagraphs of § 3553(f)(1). See United States v. Jones, No. 21-4605, 2023 WL 2125134 (4th Cir. Feb. 21, 2023); United States v. Lopez, 58 F.4th 998 F.3d 431 (2021), reh’g denied, 58.4th 1108 (9th Cir. 2023); United States v. Garcon, 54 F.4th 1274, 1276 (11th Cir. 2022) (en banc). In it’s response to Pulsifer’s certiorari petition, the government told the Court that Pulsifer’s “case is a suitable vehicle for resolving the question presented.”
The documents in Pulsifer are available on the Supreme Court's website here.