In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.
If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:
- The defendant does not have –
- more than 4 criminal history points (with some exclusions),
- a prior 3-point offense, as determined under the guidelines, and
- a prior 2-point violent offense, as determined under the guidelines.
The dispute was litigated in the 11th Circuit over the meaning of the word “and” (in bold and italics above). The government read the paragraph as follows:
- The defendant does not have –
- more than 4 criminal history points (with some exclusions),
- a prior 3-point offense, as determined under the guidelines, or
- a prior 2-point violent offense, as determined under the guidelines.
In United States v. Garcon, the government argued that the word “and” actually meant “or” in the context of the statute. The government argued if a defendant has (a), (b), or (c) above, then the defendant is ineligible for safety valve. However, the 11th Circuit disagreed. The 11th Circuit read the text as written and held that a defendant must have all three of (a), (b), and (c) to be ineligible for safety valve. So, if a defendant didn’t have a prior 3-point offense for example, that person would still be eligible for the safety valve and a judge would be permitted to sentence a defendant below the statutory minimum sentence.
Some of the other circuits agreed with the 11th Circuit and some didn’t. The 4th and 9th Circuits agreed with the 11th, however the 4th, 5th, 6th, 7th, and 8th disagreed. So, the Supreme Court took up certiorari in United States v. Pulsifer to resolve the conflict.
In Pulsifer, the Court changed course from the arguments focused on in Garcon. Rather than focusing on whether Congress really meant “or” when it wrote “and,” the Court focused on the words “does not include,” in the statute, and determined that it was a permissible interpretation to read those words into each subsection of the statute. In other words, the Court held that the statute could be read like this:
- The defendant:
- does not have 4 criminal history points…,
- does not have a prior 3-point offense… and
- does not have a prior 2-point violent offense…
In other words, they would read in the words “does not have” into each of the three subparagraphs. This reading would disqualify a defendant who has any of the three (a), (b), or (c).
An interesting trio of Justice Gorsuch, Justice Sotomayor, and Justice Jackson dissented arguing that the natural reading of the statute renders only one conclusion – “and” means “and.” They believe that you cannot read “does not have” into the statute where it does not exist. The dissent charged the majority with performing linguistic gymnastics to reach their conclusion.
In the end though, we are left with binding precedent that overrules Garcon in the 11th Circuit and is now the law of the land throughout the nation. This decision dramatically reduces safety valve eligibility for those charged with federal drug offenses, which will in turn prevent a federal judge from going below the statutory minimum sentence mandated by law. For those individuals, the remaining option to break the minimum mandatory sentence will be through a 5K substantial assistance motion, which can only be filed by a federal prosecutor based on providing substantial assistance to the government.