Is the “safety valve” provision of 18 U.S.C § 3553(f)(1)—which allows reduced sentences for certain criminal defendants—unavailable only for defendants who, under the Federal Sentencing Guidelines, have more than four criminal history points, a prior three point offense and a prior nonviolent two point offense, or are defendants ineligible if they meet even one of the listed categories?
This case asks the court to analyze 18 U.S.C. § 3553(f)(1), which establishes which criminal defendants can receive reduced sentences under the federal “safety valve” provision and determine whether a defendant is ineligible for safety valve relief only when they meet all three of § 3553(f)(1)’s listed criteria, or if they become ineligible after meeting even one of the three criteria. Pulsifer argues that all three listed criteria must be met for the defendant to be disqualified from safety valve relief, because the “and” which connects the three offense categories is used in the joint sense and bundles the three offense categories together. Pulsifer points to the plain meaning of the statute and Congress’s intent to introduce lenity in sentencing for some criminal defendants. In opposition, the United States argues that the “and” is distributive in this context and effectively functions as an “or”. Therefore, the United States argues, a defendant is disqualified from safety valve relief if they meet even one of the three offense criteria. The United States further maintains that a distributive “and” is required for a proper reading because reading the statute otherwise would render its text arbitrary and redundant. The United States also posits that a distributive “and” would protect the general public from habitual offenders and satisfy Congress’s goal of combating recidivism. This case touches on important questions regarding sentencing guidelines for drug offenses, leniency in sentencing, and the interpretation of federal sentencing statutes.
Questions as Framed for the Court by the Parties
Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).
In 2018, Congress passed the First Step Act. Brief for Petitioner, Pulsifier at 8. This Act altered statutes relating to “safety valve” relief, which permits courts to issue sentences below the statutory minimum for defendants who meet certain criteria. United States v. Pulsifer, at 1019. One statute the Act altered was 18 U.S.C. § 3553(f)(1), which determines eligibility for safety valve relief based on two terms calculated under the Federal Sentencing Guidelines § 4A1.1: individual offenses, which are assigned points based on the offense, and total criminal history points, which are determined based on an individual’s prior offenses, and the length of his previous sentences. Brief for the United States at 5–6. Prior to 2018, § 3553(f)(1) had no subsections, and permitted defendants that “[did] not have more than 1 criminal history point” to receive safety valve relief. Brief for Petitioner at 8. The First Step Act revised § 3353(f)(1), and made defendants eligible for safety valve relief if they “[do] 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.” Id.
Mark Pulsifer sold methamphetamine to a confidential informant in Iowa on two occasions during April 2020. Brief for the United States at 6–7. Pulsifer sold 112 grams of methamphetamine during the first sale, and 29 grams during the second sale. Id. Following his arrest, Pulsifer was brought before the District Court for the Southern District of Iowa, where a federal grand jury indicted him on one count of distributing 50 grams or more of methamphetamine, and one count of distributing 5 grams or more of methamphetamine. Id. at 7. As Pulsifer had been convicted for possession of a controlled substance with intent to distribute in 2013, he faced a statutory minimum prison term of 15 years under 21 U.S.C. § 841 (b)(1)(A). Id.
Pulsifer pled guilty to distributing 50 grams or more of methamphetamine as part of a plea deal, in exchange for the State dismissing the count of distributing 5 grams or more of methamphetamine. Id. At sentencing, Pulsifer contended that he met the requirements for safety valve relief under 18 U.S.C. § 3553(f). Pulsifer at 1019. All parties agreed that Pulsifer met the requirements of § 3553(f)(2) through (5). Brief for Petitioner at 9. Pulsifer argued that he also met the requirements of § 3553(f)(1), because, while he had prior 3-point offenses and had more than 4 criminal history points, he did not have a prior violent 2-point offense; thus, Pulsifer contended, his conduct only fulfilled § 3553(f)(1)(A) and (B), not (C). Id. The district court disagreed, and ruled Pulsifer was ineligible for safety valve relief because he met at least one of the disqualifying subsections under § 3553(f)(1). Pulsifer at 1022. The district court sentenced Pulsifer to 162 months of imprisonment, reducing his sentence from the statutory minimum by 18 months based on authority other than 18 U.S.C. § 3553(f). Pulsifer at 1020.
Pulsifer then appealed to the Court of Appeals for the Eighth Circuit, claiming that the district court erred in its failure to apply 18 U.S.C. § 3553(f). Id. The Eighth Circuit affirmed the decision of the district court and found that Pulsifer was ineligible for safety valve relief. Id. at 1019. Pulsifer subsequently petitioned for a writ of certiorari, which was granted on February 27, 2023. Brief for Petitioner at 5.
STATUTORY INTERPRETATION OF § 3553(F)(1)
Pulsifer argues that defendants may rely on 18 U.S.C. § 3553(f)(1) as long as they meet any one of its three criteria, those being: “(A) [not having] more than 4 criminal history points, excluding any points resulting from a 1-point offense”; “(B) [not having] a prior 3-point offense”; and “(C) [not having] a prior 2-point violent offense.” Brief for Petitioner at 16. Pulsifer contends that based on the dictionary definition of “and”, the meaning of “and” in § 3553(f)(1) is unambiguously conjunctive, and thus requires all three criteria to be met before a defendant is disqualified from safety valve relief. Id. at 17–18. Pulsifer also contends that the use of “not” in § 3553(f)(1) – “the defendant does not have”—is in line with the structure of “common sense” statements such as “do not drink and drive,” and illustrates that legislators intended to allow defendants who meet two or fewer of the criteria to qualify for safety valve relief. Id. Pulsifer also argues that requiring a defendant to fail all three criteria does not render § 3553(f)(1)(A) superfluous, as the points of an offense do not always correlate to criminal history points. Id. at 37. Pulsifer notes that the Federal Sentencing Guidelines allow for certain 2-point or 3-point offenses not to count towards criminal history points based on how long ago those offenses were committed, and that some offenses may be combined in sentencing to result in a lower number of criminal history points than the total number of points of the offenses combined. Id. at 36–37. Additionally, Pulsifer points to other sections of § 3553(f) where the courts have ruled Congress used “and” conjunctively and contends that the similarities between those sections and § 3553(f)(1) show that Congress intended “and” in § 3553(f)(1) to be read with the same understanding. Id. at 21. In comparison, Pulsifer highlights § 3553(f)(4), where Congress used “or” to connect three subsections that individually would be enough to disqualify a defendant from safety valve relief. Id. Pulsifer thus argues that Congress would have used “or” in § 3553(f)(1) had it wanted any of the subsections to disqualify defendants from relief on their own. Id.
The United States argues that defendants may only rely on 18 U.S.C. § 3553(f)(1) if they meet all three of its subsections—not having more than 4 criminal history points, not having a prior 3-point offense, and not having a prior 2-point violent offense. Brief for the United States at 13. The United States argues that “and” is not always interpreted conjunctively, and that it takes on different meanings depending on the words surrounding it, such as “not.” Id. at 15. It contends that statutes similarly structured to § 3553(f)(1) support interpreting the “and” in its introductory clause as disqualifying defendants if even one subsection is met. Id. at 17. For example, the United States contends, 34 U.S.C. § 20101(f), a federal statute that has been interpreted as requiring all of its subsections to be satisfied, also has an introductory clause containing “not,” a dash following the introductory clause, and three subsections connected with “and.” Id. The United States asserts that the dashes following the introductory clauses of § 20101(f)(1) and § 3553(f)(1) strongly indicate that “and” should be read in a distributive manner. Id. at 38. The United States cites government style manuals and reference texts which recommend using dashes to indicate an introductory clause should be distributed before each subsection individually—a reading which would require all three subsections of § 3553(f)(1) to be met to qualify for relief. Id. The United States observes that requiring defendants to meet only one subsection would render § 3553(f)(1)(A) superfluous, since any defendant who fulfills both the “3-point offense” requirement of § 3553(f)(1)(B) and the “2-point violent offense” of (f)(1)(C) would automatically fulfill the “more than 4 criminal history points” requirement of (f)(1)(A). Id. at 20. The United States argues that the severity of the types of offenses stated in § 3553(f)(1) support reading the “and” as disqualifying a defendant meeting any of the subsections from safety valve relief, because each subsection describes an offense or collection of offenses severe enough to withhold safety valve relief from a defendant. Id. at 21. The United States additionally asserts that under the Federal Sentencing Guidelines an offense cannot have different values of points and criminal history points, and that an offense counts towards a defendant’s criminal history regardless of how far in the past the offense occurred. Id. at 28–29. The United States further contends that interpreting “and” as Pulsifer proposes would render the entirety of § 3553 meaningless and defeat the purpose of safety valve relief, as § 3553(f)(1) would no longer focus on the severity of a defendant’s offenses or whether a defendant is likely to commit more offenses in the future. Id. at 22. Instead, the United States argues, § 3553(f)(1) would focus on whether a defendant had the “right” combination of offenses: for example, a defendant with three or more 2-point violent offenses could satisfy (f)(1)(A) and (C), but not (B), and thus be possibly eligible for safety valve relief. Id.
RULE OF LENITY AND CONGRESSIONAL INTENT
Pulsifer argues that even if the language of § 3553(f)(1) is ambiguous, the court should interpret the statute in his favor. Brief for Petitioner at 47. Pulsifer notes that the rule of lenity prohibits courts from interpreting a criminal statute in a manner unfavorable to the defendant when the statute’s text is clearly ambiguous, and Congress’ intention in drafting that statute is difficult to discern. Id. at 47–48. Pulsifer observes that the rule of lenity must be applied to protect defendants from unfavorable interpretations when interpreting ambiguous criminal statutes, including statutes which alleviate punishments. Id. at 47–48. Pulsifer also argues that reading “and” in § 3553(f)(1) as only disqualifying defendants who meet all three of the subsections from safety valve relief reflects the intention of the First Step Act to reform sentencing requirements and make safety valve relief more widely available to non-violent drug offenders. Id. at 22. Pulsifer contends that Congress sought to provide courts with discretionary powers to avoid mandatory sentencing minimums, in favor of considering the individual circumstances of each defendant. Id. at 22–23. Pulsifer points to the prior form of § 3553(f)(1) – which limited safety valve relief to only defendants who did “not have more than 1 criminal history point, as determined under the sentencing guidelines” – as an indication that Congress expanded 3553(f)(1) to provide courts with a tool to apply proportionate punishments and avoid having to apply statutory minimums. Id. at 8, 23-24 Thus, Pulsifer concludes that the “and” in § 3553(f)(1) should be read conjunctively to provide courts with as much leeway as possible. Id. at 23–24.
The United States argues that the rule of lenity is inapplicable in interpreting § 3553(f)(1), because a prerequisite for applying the principle is “grievous ambiguity,” and the statute is unambiguous. Brief for the United States at 47. The United States additionally contends that the rule of lenity is inapplicable because § 3553(f)(1) is not a penal law, which either provides a definition of a crime or imposes a penalty for committing an offense: the United States posits that the rule of lenity is inapplicable for provisions focused on reducing punishments for offenders. Id. at 46. The United States also argues that its interpretation of “and” within § 3553(f)(1) reflects the intent of legislators drafting the First Step Act to provide a “modest” expansion of safety valve relief to “more low-level, nonviolent offenders.” Id. at 44. The United States uses 2021 statistics for drug trafficking offenders to show that a conjunctive interpretation of “and” in § 3553(f)(1) would increase the number of offenders eligible for relief by a percentage far more drastic than the drafters of the First Step Act desired. Id. at 44–45. The United States posits that a distributive interpretation of “and” in § 3553(f)(1) would still increase the number of offenders eligible for relief, but by a significantly smaller percentage than would be eligible under the conjunctive interpretation, and thus that would better fit the “modest” goals of the drafters of the First Step Act. Id. at 45.
ALLOWING DISCRETIONARY SENTENCING
In support of Pulsifer, the Americans for Prosperity Foundation (AFPF) contends that limiting eligibility for the safety valve provision would prevent judges from conducting a well-rounded sentencing determination. Brief of Amici Curiae Americans for Prosperity Foundation and National Association of Criminal Defense Lawyers (AFPF), in Support of Petitioner at 16. The AFPF reasons that, while the safety valve provision would not guarantee a criminal defendant a low sentence, it would allow judges to use their discretion and rule leniently if they believe the defendant’s history justifies a lesser sentence. Id. The National Association of Federal Defenders, in support of Pulsifer, explains that Congress sought to give certain criminal defendants the opportunity of a lesser sentence if their unique circumstances call for such a reduction, potentially at the cost of extending leniency to habitual offenders. Brief of Amici Curiae National Association of Federal Defenders, in Support of Petitioner at 6. Accordingly, Families Against Mandatory Minimums et. al. (“FAMM”), writing in support of Pulsifer, cautions that restricting leniency for offenders would potentially impose disproportionately large sentences on non-violent or low-level criminal defendants, which would neither give defendants a chance at reform nor significantly improve public safety. Brief of Amici Curiae FAMM et al., in Support of Petitioner at 21–22.
The United States counters that expanding eligibility for the safety valve provision would expand judicial discretion beyond what Congress intended when it passed the First Step Act. Brief for the United States at 45. The United States notes that its interpretation still expands the amount of defendants who qualify for safety valve relief beyond what the original statute provided. Id. at 43. However, the United States posits that Congress passed the First Step Act with the purpose of affording a small class of non-habitual offenders an avenue for relief through discretionary sentencing. Id. at 44. Thus, the United States reasons, Congress only intended to modestly increase the number of defendants exempted from mandatory minimums. Id. The United States notes that if the Court adopted Pulsifer’s interpretation, the statute would only disqualify 2.7% of defendants, and qualify almost all otherwise-eligible defendants for relief. Id. at 45. The United States warns that this expansion would not be a modest increase. Id. Thus, the United States concludes that Pulsifer’s interpretation of the safety valve provision would violate Congressional intent by granting judges excessive discretion over a broad category of defendants. Id. Moreover, the United States argues that lenity applies only to “penal laws”—laws that name crimes and their penalties—and ambiguous statutes. Id. at 46–47. The United States posits that the safety valve provision is not ambiguous and does not establish a crime or penalty; thus, the United States reasons, there is no need to interpret the statute leniently. Id.
SOCIETAL EFFECTS OF SENTENCING
In support of Pulsifer, the AFPF points to the high cost of prisons and how society is ill served by the imprisonment of low-level offenders for long periods of time. See Brief of AFPF, in Support of Petitioner at 21. In fact, it is estimated that US taxpayers pay about $80 billion for prisons every year. Princeton Legal Journal. Further in support of Pulsifer, FAMM asserts that mandatory minimums increase the risk of recidivism, since individuals who serve long sentences are often unable to re-integrate into society upon release and ultimately are more likely to return to crime. Brief of FAMM, in Support of Petitioner, at 18. FAMM also contends that restricting safety valve relief would impose a great cost on the government itself, as it will have to spend significant amounts of money prosecuting and processing drug offenders who reoffend after long prison sentences. See id. at 19.
The United States argues that the possibility of recidivism warrants a more restrictive application of the safety valve provision. See Brief for the United States at 22. Specifically, the government notes the fact that Pulsifer continued his criminal conduct despite his past incarceration history. See id. In fact, studies show that one in four criminals reoffend. Prison Policy Initiative. The United States warns that, if the Court interprets the safety valve according to Pulsifer’s request, criminal defendants could continue to commit drug-related offenses and violent offenses and still receive reduced sentences as long as they avoid committing all three categories of offenses listed in the provision. Id. at 23. As a result, the United States argues, the safety of the public would be threatened by habitual violent offenders who served disproportionately low sentences. Id.
- Marissa Zupanic, U.S. Supreme Court to hear cases on criminal sentencing and appropriations, Jurist (Feb. 28, 2023).
- John Elwood, Another separation-of-powers-case, press access to trials, and maritime insurance, SCOTUSblog (Feb. 23, 2023).
- Pulsifer v. United States, Ballotpedia