United States v. Julian Garcon

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14650

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JULIAN GARCON,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:19-cr-80081-JIC-1

____________________

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19-14650 Opinion of the Court 2

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

and BRASHER, Circuit Judges.

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.” 18 U.S.C. § 3553(f )(1) (emphasis

added). Julian Garcon, who pleaded guilty to attempting to possess

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500 grams or more of cocaine with intent to distribute, has a prior

3-point offense but does not have more than 4 criminal history

points or a prior 2-point violent offense. The district court

concluded that Garcon remained eligible for relief under the Act

because he did not have all three characteristics. We agree. Because

the conjunctive “and” joins together the enumerated

characteristics, a defendant must have all three before he is

ineligible for relief. We affirm.

I. BACKGROUND

Julian Garcon was indicted in 2019 for attempting to possess

500 grams or more of cocaine with intent to distribute. See 21

U.S.C. §§ 841(a), 846. The offense carried a statutory minimum

sentence of five years’ imprisonment. See id. § 841(b)(1)(B)(ii).

Garcon pleaded guilty.

At sentencing, Garcon asked the district court to apply the

so-called “safety valve” of the First Step Act, 18 U.S.C. § 3553(f ).

Section 3553(f ) provides that, for certain crimes, including the

crime Garcon committed, the sentencing court “shall impose a

sentence pursuant to [the United States Sentencing] [G]uidelines

. . . without regard to any statutory minimum sentence, if the court

finds at sentencing” that the defendant satisfies each of five

numbered subsections. See id. § 3553(f )(1)–(5). The first

subsection—the requirement in dispute here—provides as follows:

(1) the defendant does not have—

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(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. § 3553(f )(1).

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 id. § 3553(f )(1)(B),

meant that he would be ineligible for relief only if he had more than

4 criminal history points, a prior 3-point offense, and a prior 2-point

violent offense. And because he does not have a prior 2-point

violent offense or more than 4 criminal history points, Garcon

argued that he remained eligible for safety-valve relief. The

government took the opposite view, arguing that Garcon was

ineligible because, “if any of th[e] three [subsections] apply, . . . the

defendant doesn’t qualify for the safety valve . . . .” (Emphasis

added.)

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

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court explained, would require it to replace the word “and” with

the word “or.” And although it considered the “result” “absurd”

and the legislative history supportive of the government’s reading,

the district court explained that those considerations did not alter

its analysis because “[t]he statute, as written, is unambiguous.” So,

the district court applied the safety valve, calculated the applicable

guidelines range, and imposed a sentence of 36 months’

imprisonment.

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

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interpretation of the text by the ordinary-meaning canon, “the

most fundamental semantic rule of interpretation.” ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS § 6, at 69 (2012). The command of the canon is

simple: “our job is to interpret the words consistent with their

ordinary meaning at the time Congress enacted the statute,” Wis.

Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (alteration

adopted) (internal quotation marks omitted), “unless the context in

which the word[s] appear[]” suggests some other meaning,

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012).

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)

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(Willett, J., dissenting). Similarly, consider the command, “You

must not do A, B, and C.” A person violates that prohibition only

by doing all three prohibited acts—by doing A, together with B,

together with C. See SCALIA & GARNER, supra, § 12, at 119. A

person who does only A, only B, or only C is in the clear.

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 18 U.S.C. § 3553(f )(1). So a defendant runs afoul

of the provision and loses eligibility for relief only if all three

conditions in subsections (A) through (C) are satisfied. That is, to

lose eligibility for relief, a defendant must have “more than 4

criminal history points, excluding any . . . 1-point offense,”

together with “a prior 3-point offense,” together with “a prior 2-

point violent offense.” See id. Because Garcon has a prior 3-point

offense but does not have 4 criminal history points (excluding any

1-point offense), or a prior 2-point violent offense, he is eligible for

safety-valve relief.

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):

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[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 . . . .

18 U.S.C. § 3553(f ) (emphasis added). The parties agree that the

“and” used to join the larger list is conjunctive. See also Palomares,

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52 F.4th at 654 (Willett, J., dissenting). That is, the sentencing court

must find that a defendant satisfies each of subsections (f )(1)

through (f )(5) before it may depart from a statutory minimum

sentence. Because the “and” in subsection (f )(4) is conjunctive, the

presumption of consistent usage instructs us to presume that the

word “and” has the same sense when the word appears in

subsection (f )(1). See Brown v. Gardner, 513 U.S. 115, 118 (1994)

(explaining that the “presumption that a given term is used to mean

the same thing throughout a statute” is “at its most vigorous when

a term is repeated within a given sentence”).

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 principle 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.” 18 U.S.C. § 3553(f )(2) (emphases

added). In other words, any one of the conditions—violence,

credible threats, or possession—is disqualifying. Similarly, the

statute provides that relief is available only if “the defendant was

not an organizer, leader, manager, or supervisor of others in the

offense.” Id. § 3553(f )(4) (emphasis added). Again, it is disqualifying

to have performed any one of the listed roles. Because the statute

uses a negative followed by the disjunctive “or ” to convey that

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satisfaction of a single condition in a list is disqualifying, we

presume a variation in meaning when the statute employs a

negative followed by the conjunctive “and.”

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).”).

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B. “And” Does Not Mean “Or.”

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. United States v. Palomares, 52 F.4th 640, 643–

45 (5th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018, 1021–22

(8th Cir. 2022). We decline to adopt that novel reading when it

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appears to have been crafted by the government specifically for this

statute to achieve its preferred outcome.

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 distribute 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—

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the prohibition, “[y]ou must not lie, cheat, and steal”—is

unpersuasive for the same reason. Indeed, it is no coincidence that

the more common wording of the prohibition uses an “or” instead

of an “and”: “You must not lie, cheat, or steal.” See, e.g., Van Orden

v. Perry, 545 U.S. 677, 715 (2005) (Stevens, J., dissenting) (“The

State may admonish its citizens not to lie, cheat, or steal . . . .”);

Andrews v. Knowlton, 509 F.2d 898, 902 (2d Cir. 1975) (“The Cadet

Honor Code in force at the United States Military Academy

consists of a single maxim: ‘A cadet does not lie, cheat or steal or

tolerate those who do.’”).

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

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antecedents to match to a corresponding list of consequents—no

series of lists that can be clarified with the word “respectively.” Cf.

Facebook, 141 S. Ct. at 1172 (“[T]he canon’s relevance is highly

questionable given there are two antecedents . . . but only one

consequent modifier.”).

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,” 18 U.S.C. § 3553(f )(1)(B), and a “prior

2-point violent offense,” id. § 3553(f )(1)(C), will necessarily also

have “more than 4 criminal history points,” see id. § 3553(f )(1)(A).

So, the government argues that a conjunctive reading of “and”

would render subsection (f )(1)(A) superfluous in a way that a

disjunctive reading would not. We disagree.

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 18 U.S.C. § 3553(f )(1). Under the

sentencing guidelines, a two-point offense adds no points to the

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defendant’s criminal-history score if the sentence was imposed

more than 10 years before the defendant commenced the present

offense. UNITED STATES SENTENCING GUIDELINES MANUAL

§ 4A1.1(b) & cmt. n.2 (Nov. 2018). Similarly, a three-point offense

does not contribute to the criminal-history score if the defendant

finished serving the sentence more than 15 years before

commencing the present offense. Id. § 4A1.1(a) & cmt. n.1. So, for

example, a defendant could have 20-year-old two-point and three-

point offenses, satisfying subsections (B) and (C), but score zero

criminal history points and fall below the threshold in subsection

(A). See Palomares, 52 F.4th at 659 (Willett, J., dissenting).

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 offenses 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. Id. § 4A1.2(a)(2). When separate offenses

are counted as a single sentence, the district court calculates the

term of imprisonment based on the longest sentence if the

sentences were imposed concurrently or the total of both sentences

if they were imposed consecutively. Id. So, for example, a

defendant could have a two-point and a three-point offense

charged in the same instrument, satisfying subsections (B) and (C),

but score only three criminal history points and fall below the

threshold in subsection (A).

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The government argues that “if an offense is too old to score

any points under the [g]uidelines, then it is not a ‘prior [2- or] 3-

point offense, as determined under the sentencing guidelines,’” see

18 U.S.C. § 3553(f )(1)(B), but the statute itself refutes this

argument. Section 3553(f)(1)(A) directs courts to consider whether

the defendant has “more than 4 criminal history points, excluding

any criminal history points resulting from a 1-point offense.” That

is, the subsection distinguishes between points associated with an

“offense”—points that may or may not count towards the criminal

history score—and the final tally of “criminal history points.” The

subsection would be nonsensical if the government were correct

that offenses may have points associated with them only when

those points contribute to the final criminal history score. The text

forecloses that reading.

To be sure, our interpretation requires reading “prior 3-

point” and “2-point violent offense[s],” id. § 3553(f )(1)(B)–(C), to

include offenses that do not contribute to the total criminal-history

score, but this reading is a function of the statutory text. The

guidelines are not framed around “offenses”; they instead instruct

sentencing courts to add points to the defendant’s criminal-history

score for his “prior sentence[s] of imprisonment.” See U.S.S.G.

§ 4A1.1. So the meaning of “a prior . . . offense” must come from

section 3553(f ), not from the guidelines. See 18 U.S.C. § 3553(f )

And, as we have explained, section 3553(f ) distinguishes between

“hav[ing] . . . criminal history points” and “hav[ing] . . . offense[s].”

See id. Under the statute, criminal-history points are those that are

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actually scored, and a three-point offense is one that would add

three points to the score, all else being equal.

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.” U.S.S.G. § 4A1.2(c). It

provides that most “[s]entences for misdemeanor and petty

offenses are counted,” but then lists the “prior offenses and offenses

similar to them” that “are never counted” or that “are counted

only” in certain circumstances. See id. And like section 3553(f )(1),

the guidelines delineate between the number of points for prior

sentences and the calculation of a criminal history score. For

example, under the guidelines, a “prior sentence of imprisonment

exceeding one year and one month” is worth “3 points.” Id.

§ 4A1.1(a). But that prior sentence is “not counted,” id. § 4A1.1

cmt. n.1, toward “[t]he total points” of the criminal history score,

id. § 4A1.1, if the “sentence [was] imposed more than fifteen years

prior to the defendant’s commencement of the instant offense,” the

prior “offense [was] committed prior to the defendant’s eighteenth

birthday,” or the “sentence [was] for a foreign conviction, a

conviction that ha[s] been expunged, or an invalid conviction,” id.

§ 4A1.1 cmt. n.1.

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3. The Ordinary Meaning of “And” Does Not Produce

an Absurd Result.

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, C.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

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circumstances,” see id., while retaining mandatory minimums for

those defendants it perceived to be particularly unworthy of relief.

To that end, each portion of section 3553(f )(1) targets a different

type of behavior suggestive of future dangerousness. Under the

guidelines, a prior sentence can have up to three points associated

with it. See U.S.S.G. § 4A1.1. So the requirement in subsection

(A)—that a defendant not have “more than 4 criminal history

points”—targets serious recidivists, that is, defendants with more

than one prior sentence excluding minor one-point offenses. See 18

U.S.C. § 3553(f )(1)(A). The requirement in subsection (B)—that a

defendant not have a 3-point offense—targets defendants who have

committed those serious crimes that received long sentences of

imprisonment. See id. § 3553(f )(1)(B). And the requirement in

subsection (C) targets defendants with a history of violence even

though they received shorter sentences. See id. § 3553(f )(1)(C).

Taken together, the conditions in section 3553(f )(1) are rationally

aimed at ensuring that the most dangerous offenders—violent

recidivists with a history of committing serious crimes—remain

ineligible for safety-valve relief.

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 subsections necessary to

qualify for safety-valve relief. See id. § 3553(f )(2)–(5). To the

contrary, those subsections will often disqualify defendants the

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government considers unworthy of relief. For example, the

government expresses concern that certain violent offenders may

remain eligible for relief, but the statute disqualifies a defendant if

he “use[s] violence or credible threats of violence . . . in connection

with the offense,” or if the offense “result[s] in death or serious

bodily injury to any person.” Id. § 3553(f )(2)–(3). Moreover, it does

not follow from the availability of safety-valve relief that a

defendant will always receive a sentence that is meaningfully

different from the mandatory minimum. A defendant who is

eligible for safety-valve relief must be sentenced “pursuant to [the

sentencing] guidelines,” id. § 3553(f ), and the guidelines treat a

defendant’s criminal history as an aggravating factor warranting a

longer sentence, see, e.g., U.S.S.G. §§ 4A1.1, 4B1.1, 4B1.3–4. As our

dissenting colleague explains, a judge who has discretion to impose

a shorter sentence, based on the safety-valve provision, may

reasonably choose not to exercise that discretion if consideration

of the defendant’s history counsels against it. Brasher Dissenting at

3–4.

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 18 U.S.C. § 3553(f )(1) (2012) (pre-First Step Act provision

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disqualifying a defendant from safety-valve relief if he had “more

than 1 criminal history point”). That Congress might not have

anticipated how broadly its reforms would sweep does not make

those reforms absurd. See Vachon, 20 F.4th at 1351 (Pryor, C.J.,

concurring) (“[T]he absurdity doctrine does not give us license to

fix substantive errors arising from a drafter’s failure to appreciate

the effect of certain provisions . . . .” (internal quotation marks

omitted)).

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

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is that legislation sometimes “sweep[s] too broadly” by “affording

protection and relief to some who are not truly deserving or

aggrieved,” even as it sweeps “too narrowly” by “failing to reach

some who are more deserving or aggrieved.” Id. Because this

“[i]mperfection” stems from the “nature of [the] political process,”

id., we consider the rationality of the overall statutory scheme and

not whether “a particular application of the [scheme] may lead to

an arguably anomalous result,” see Silva-Hernandez v. U.S. Bureau

of Citizenship & Immigr. Servs., 701 F.3d 356, 364 (11th Cir. 2012).

And because, as we have explained, a rational Congress could

conceivably have intended to disqualify only those defendants who

satisfy every condition in section 3553(f )(1), the perceived

inequities of particular applications do not rise to the level of an

absurdity.

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,

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Crandon v. United States, 494 U.S. 152, 160 (1990), “preclude[s] our

resolution of the ambiguity against [Garcon] on the basis of . . .

legislative history,” see Hughey v. United States, 495 U.S. 411, 422

(1990).

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,

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and the Senate drafting manual would point toward one

interpretation, and the presumption against superfluity would

point toward another. In that circumstance, the rule of lenity

would require us to give the word “and” “its ordinary, accepted

meaning,” see Burrage v. United States, 571 U.S. 204, 216 (2014),

and treat the word as conjunctive.

IV. CONCLUSION

We AFFIRM Garcon’s sentence.

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ROSENBAUM, Circuit Judge, Concurring:

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 interpretation of 18 U.S.C. § 3553(f)(1) that is

“the best interpretation,” Shular v. United States, 140 S. Ct. 779,

788 (2020), (Kavanaugh, J., concurring) (citation omitted). Rather,

even after we exhaust all the ammunition in our statutory-

interpretation belts, a “grievous ambiguity” remains as to whether

a defendant still qualifies for safety-valve relief under 18 U.S.C. §

3353(f)(1) if he satisfies fewer than all three factors that that

provision outlines. See Muscarello v. United States, 524 U.S. 125,

138–39 (1998).

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-

1 Still, I note that some say that application of the rule of lenity requires only

that, after resort to all the traditional tools of interpretation, “a reasonable

doubt persists” about the statute’s intended meaning. See United States v.

McNab, 331 F.3d 1228, 1239 n.21 (11th Cir. 2003) (quoting Moskal v. United

States, 498 U.S. 103, 108 (1990)); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 299 (2012) (favoring this

formulation, even though it is “more defendant-friendly than most”

formulations, for “when the government means to punish, its commands

must be reasonable clear.”).

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valve relief as long as he does not satisfy all three of the factors 18

U.S.C. § 3353(f)(1) identifies.

That said, the Dissent’s common-sense interpretation of §

3553(f)(1), which reads the “and” as an “or,” has a lot of appeal

because it converges with what appears to be the statute’s manifest

intent. Under the original version of § 3553(f)(1), a defendant

qualified for safety-valve relief only if he 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. No. 103-322, § 80001(a), 108 Stat. 1796, 1985 (1994)

(current version at 18 U.S.C. § 3353(f)(1)). As the name and content

of that law indicate, and as then-President William Clinton

explained before signing the law, Congress was particularly

concerned when it enacted that statute about keeping “violent

criminals off the street.” Remarks on Signing the Violent Crime

Control and Law Enforcement Act of 1994, 2 Pub. Papers. 1539,

1540 (Sept. 13, 1994). So the safety valve provided an escape from

mandatory minimum sentences for only those with the most

minimal criminal histories.

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 18

U.S.C. § 3553(f)(1)). Though the Act expanded eligibility,

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Congress’s decision to make “a prior 2-point violent offense” either

partially or wholly disqualifying (depending on whether the

Majority Opinion or the Dissent is right) evinces Congress’s

continued concern about authorizing safety-valve relief for anyone

previously convicted of a truly violent crime. After all, a two-point

offense is one for which a defendant was previously sentenced to

imprisonment for a comparatively shorter sentence—for as few as

two months. See U.S.S.G. § 4A1.1(b) (defining a two-point offense

as one for which a sentence lasting between two and thirteen

months was imposed).

So from a common-sense standpoint driven by the purpose

and statutory context of § 3553(f)(1), the Majority Opinion’s

construction of that provision is entirely counterintuitive. To

illustrate just how counterintuitive that construction is, imagine

two hypothetical defendants. The first has seven violent three-

point offenses (prior convictions for which a sentence of at least

thirteen months was imposed, see U.S.S.G. §§ 4A1.1(a)), and has

spent years in prison for those violent crimes. Although this first

defendant’s total criminal history tallies twenty-one points—all

incurred for committing violent crimes—he has no prior two-point

violent convictions. And for that reason, he qualifies for the safety

valve under the Majority Opinion’s interpretation of § 3553(f)(1).

The second defendant, meanwhile, has just a single two-point

violent conviction (which landed him in jail for only two months)

and one three-point nonviolent conviction for a total of five points.

Yet because that second defendant satisfies all three § 3353(f)(1)

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factors, he does not qualify for safety-valve relief under the

Majority Opinion’s interpretation of that provision. If the second

defendant’s single two-point violent offense is enough to knock

him out of contention for the safety valve, it is hard to see why

Congress, in trying to restrict safety-valve access to nonviolent

offenders, would have intended for the first defendant, with years

in jail on 21 points’ worth of violent offenses, to qualify for it.

Dismissing this contradiction, the Majority Opinion

suggests that § 3553(f)(1)’s “requirement for a two-point violent

offense can be fulfilled by a three-point offense.” See Maj. Op. at

21 (citing United States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021)).

But an analysis that lives by the text must also die by it. And

the Majority Opinion’s suggestion that we can read § 3553(f)(1)’s

reference to a “2-point violent offense, as determined under the

sentencing guidelines” to mean a “2-point or more violent offense,

as determined under the sentencing guidelines” would require us

to add text that doesn’t exist. Indeed, the definition of “2-point

offense” under the sentencing guidelines is mutually exclusive of

the definition of “3-point offense.” 2 And as the Majority Opinion

2Under the Sentencing Guidelines, a “2-point offense” is an offense for which

the defendant was sentenced to “imprisonment of at least sixty days not

counted in [U.S.S.G. § 4A1.1](a).” Subsection 4A1.1(a), in turn, provides that

a prior conviction scores three points if the defendant was sentenced to

“imprisonment exceeding one year and one month.” U.S.S.G. s 4A1.1(a). So

a “2-point offense” is necessarily one where the defendant was sentenced to

between 60 days and one year and one day shy of one month in prison, while

a “3-point offense” is one where the defendant was sentenced to at least one

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correctly notes, when we engage in a textual analysis, we can’t just

add words that Congress did not write. See Maj. Op. at 12 (citing

Korman v. HBC Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999)).

Even the Majority Opinion appears to recognize the weakness in

its suggestion, since it expressly declines to adopt the reading it

suggests. See Maj. Op. at 21 (excusing its decision not to adopt this

reading of the text because “[w]e need not—and do not—decide

specific applications of the statute to offenders who are not before

us”).

To summarize, then, the upshot of the Majority Opinion’s

construction of § 3553(f)(1) is this: the first defendant, who served

years in prison for violent crimes, qualifies for safety-valve relief,

while the second defendant, who served only two months in prison

for one violent crime, does not. Why? According to the Majority

Opinion, the answer is that the first defendant never committed a

two-point violent offense while the second defendant did. Yet the

first defendant served years in prison for his violent offenses, while

the second defendant served only two months in prison for a single

violent offense. That just seems wrong—especially because we

know Congress was concerned about the problem of repeat violent

offenders when it enacted and amended § 3553(f)(1).

Besides the dissonance of that result, I am also unpersuaded

by the Majority Opinion’s explanation for why its reading of §

year and one month in prison. And a “3-point offense,” by definition, cannot

qualify as a “2-point offense” under the Sentencing Guidelines.

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3553(f)(1) does not render the four-point criminal-history

disqualification criterion surplusage. See Maj. Op. at 14–17

(reasoning that a defendant with prior two-point and three-point

offenses does not qualify for safety-valve relief when those

convictions occurred more than ten or fifteen years ago, at which

point the Sentencing Guidelines instruct courts to exclude those

offenses from the defendant’s total criminal-history score). It

seems odd to require courts to include points from prior

convictions in assessing a defendant’s eligibility for safety-valve

relief when the Sentencing Guidelines expressly instruct us to

exclude those same points in determining the Sentencing

Guidelines range—a fact that Congress knew, as Congress must at

least implicitly approve the Sentencing Guidelines. See 28 U.S.C. §

994(p).

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 § 3553(f)(1), but it also uses “and” as a conjunctive word

elsewhere in § 3553(f). And that further suggests that “and” means

“and” in § 3553(f)(1). There is also no doubt that Congress

employed the disjunctive “or” elsewhere in § 3553(f), which

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similarly suggests that Congress would have used “or” in §

3553(f)(1) if that’s what it intended.

Each of these dueling interpretive canons and considerations

seems to apply more strongly than the last in the context of

analyzing § 3553(f)(1). At the end of the day, I am concerned that

our decision today is based on “no more than a guess as to what

Congress intended.” Ocasio v. United States, 578 U.S. 282, 296 n.8

(2016) (quoting Muscarello, 524 U.S. at 138–39) (explaining the

circumstances that trigger application of the rule of lenity). In my

view, § 3553(f)(1) is just “grievously ambiguous.”

With that in mind, I also have two concerns with following

the Dissent’s construction. First, given the plain language of §

3553(f)(1), I don’t think the statute clearly notifies defendants that

satisfying only one or two of the three factors under § 3553(f)(1)

will disqualify them from eligibility for safety-valve relief. And

second, I don’t think we can rule out the possibility that Congress

intended to use “and,” even though that seems unlikely to me. For

these reasons, I am concerned that the Dissent’s construction,

which replaces “and” with “or,” is unfaithful to the statutory

language and therefore violates the separation of powers.

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 United

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States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall,

C.J.)). Indeed, the rule of lenity reflects the law’s “tenderness” for

“the rights of individuals” to receive “fair notice of the law” and

“on the plain principle that the power of punishment is vested in

the legislative, not in the judicial department.’” Id.

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 § 3553(f)(1) only if his

criminal history satisfies all three of the requirements the statute

sets forth as disqualifying. For that reason, I concur in the

judgment of the Majority Opinion.

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NEWSOM, Circuit Judge, joined by LAGOA, Circuit Judge,

concurring:

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 § 3553(f)(1). See Maj. Op. at 14–17; United

States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021). Today’s dissent,

adopting the government’s position and joining the Fifth, Seventh,

and Eighth Circuits, disagrees. See Dissenting Op. at 12–22; United

States v. Palomares, 52 F.4th 640, 640–45 (5th Cir. 2022); United

States v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022); United States v.

Pulsifer, 39 F.4th 1018, 1021–22 (8th Cir. 2022). Here’s the thing,

though: Even if the government and today’s dissenters had the

stronger position in the surplusage battle, they wouldn’t win the

interpretive war. The reason: The anti-surplusage canon gives us

no license to skirt unambiguous text, and no canon can make the

word “and” in § 3553(f)(1) mean “or.”

“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

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canons of construction often ‘play a prominent role’ in that

endeavor, serving as ‘useful tools’ to discern that ordinary

meaning.” Id. (quoting Facebook, Inc. v. Duguid, 141 S. Ct. 1163,

1173 (2021) (Alito, J., concurring)). I consult the canons routinely

in statutory, regulatory, and contract cases—we all do. But the

canons “are not ‘rules’ of interpretation in any strict sense.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 51 (2012). Rather, they are simply

“presumptions about what an intelligently produced text conveys.”

Id. Accordingly, in carrying out our basic task—discerning a

written provision’s ordinary meaning—“we shouldn’t treat the

canons ‘like rigid rules,’” and we should be alert to over- or

misusing them. Heyman, 31 F.4th at 1319 (quoting Duguid, 141 S.

Ct. at 1175 (Alito, J., concurring)). For it bears repeating that our

“obligation is to the text and not the canons per se.” Id. at 1321–

22; see also United States v. Monsanto, 491 U.S. 600, 611 (1989)

(“[I]nterpretative canons are not a license for the judiciary to

rewrite language enacted by the legislature.” (cleaned up)).

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 § 3553(f)(1)’s plain text. But

doing so exacts too great a cost. After all, “the usual ‘preference’

for ‘avoiding surplusage constructions is not absolute,’” and

“‘applying the rule against surplusage is, absent other indications,

inappropriate’ when it would make an otherwise unambiguous

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statute ambiguous.” Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1301

(11th Cir. 2018) (quoting Lamie v. United States Tr., 540 U.S. 526,

536 (2004)). Thus, when we are “faced with a choice between a

plain-text reading that renders a word or clause superfluous and an

interpretation that gives every word independent meaning but, in

the doing, muddies up the statute,” we “‘should prefer the plain

meaning.’” Id. (quoting Lamie, 540 U.S. at 536). Only “that

approach respects the words of Congress” and our limited judicial

role. Lamie, 540 U.S. at 536.

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 § 3553(f)(1) instead of

“and.” But “[i]t is beyond our province to rescue Congress from its

drafting errors, and to provide for what we might think . . . is the

preferred result.” Id. at 542 (quotation omitted). If Congress

goofed, it should exercise its Article I authority to amend the

statute; Article III doesn’t empower us to do Congress’s job for it.

Were we to engage in interpretive gymnastics to make § 3553(f)(1)

say what it objectively, demonstrably, verifiably does not say—in

essence, to save Congress from itself—we would do the separation

of powers, and democracy itself, a profound disservice.

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JORDAN, J., Dissenting:

The criminal 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[.]

18 U.S.C. § 3553(f)(1) (emphasis added). According to the

majority’s reading of § 3553(f)(1)(A)-(C), the “and” linking

subsections (f)(1)(A), (f)(1)(B), and (f)(1)(C) is conjunctive. A

defendant who has seven 3-point felony offenses (but no 2-point

violent offenses) is therefore eligible for “safety-valve” relief. So is

a defendant who has five violent 2-point offenses (but no 3-point

offenses).

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

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19-14650 JORDAN, J., Dissenting 2

disjunctively in legal texts, and to set out the views of the Senators

who proposed the exact provision that became § 3553(f)(1).

I

At the end of the day, the resolution of Mr. Garcon’s case

turns on the meaning of the word “and” in § 3553(f)(1)(A)-(C). I

therefore begin with how that word is understood.

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,

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19-14650 JORDAN, J., Dissenting 3

where reason and the intent of the parties requires it. . . . A similar

rule of construing the conjunctive participle in a disjunctive sense,

prevailed in the civil law. Sæpa ita comparatum est, ut conjuncta

pro disjunctis accipiantur.”); 1 Stewart Rapalje & Robert L.

Lawrence, A Dictionary of American and English Law, with

Definitions of the Technical Terms of the Canon and Civil Laws 58

(1888) (recognizing that “and” can be “construed to mean ‘or’” or

“read [as] ‘or’”); Arthur English, Dictionary of Words and Phrases

Used in Ancient and Modern Law 47 (1899) (“And. . . . Sometimes

construed to mean ‘or.’”); James John Lewis, Collegiate Law

Dictionary: A Dictionary of Technical Terms of the Law and of

Words and Phrases Which Have Been Judicially Defined 13 (1925)

(“[A]nd . . . In construing instruments and statutes, frequently

construed as meaning ‘or[.]’”); William E. Baldwin, Baldwin’s

Century Edition of Bouvier’s Law Dictionary 71 (1926) (“AND. In

order for the court to ascertain the intention of the legislature in

construction of statutes, they are often compelled to construe ‘or’

as meaning ‘and,’ and again ‘and’ as ‘or.’”).1

1 For other early 20th-century sources repeating the same theme, see 1 Judicial

and Statutory Definitions of Words and Phrases 386-394 (West. Pub. Co. 1904)

(“[the] strict meaning [of ‘and’ and ‘or’] is more readily departed from than

that of any other words, and one read in the place of the other in deference to

the meaning of the context,” so that “[‘and’] must be regarded as a convertible

term with ‘or,’ if the sense so requires, even in a criminal statute, where a strict

construction usually prevails”); 3 William M. McKinney & David S. Garland,

American & English Encyclopedia of Law and Practice 932 (1910) (essentially

the same).

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19-14650 JORDAN, J., Dissenting 4

We’ve said the same things several times. For example, in

Peacock v. Lubbock Compress Co., 252 F. 2d 892, 893 (5th Cir.

1958), we explained that “the word ‘and’ is not a word with a single

meaning, for chameleonlike, it takes its color from its

surroundings.” More recently, we noted that

“[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

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19-14650 JORDAN, J., Dissenting 5

recognize that and in a given context means or, much to the

chagrin of some judges[.]”).2

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 18 U.S.C. § 3553(f)(1) remained unchanged when

2There are no entries for “and” in the 2019 edition of Black’s Law Dictionary

or in the 2016 edition of Merriam-Webster’s Dictionary of Law.

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19-14650 JORDAN, J., Dissenting 6

the First Step Act was passed a month later—subsections (f)(1)(A),

(f)(1)(B), and (f)(1)(C) were connected by the word “and.” See The

First Step Act, S. 3649, § 402(B) (“Broadening of Existing Safety

Valve”), 115th Cong., 2d Sess. (Nov. 15, 2018). 3

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.

3 So that the reader can compare it with § 3553(f)(1), a copy of § 402 of S. 3649

is attached as an appendix.

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Senate Committee on the Judiciary, “The First Step Act of 2018 (S.

3649)—as introduced,” p. 2 (Nov. 15, 2018) (emphasis added). 4

So, according to the Senators who proposed the language

that ultimately became § 3553(f)(1) with no changes, a defendant

who had more than 4 criminal history points, or a 3-point offense,

or a 2-point violent offense would not be eligible for “safety valve”

treatment. In other words, the “and” in the new subsections

(f)(1)(A)-(C)—the word we are debating in this case—was meant to

be disjunctive, and not conjunctive. 5

“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

4 A copy of the summary prepared by the Senate Committee on the Judiciary

is also attached as an appendix.

5 It is also telling that the Senators who introduced S. 3649 used the words

“conviction,” “offense,” and “sentence” interchangeably.

6 Although the Supreme Court may have recently turned away from

legislative materials in a number of cases, that course is “remarkable in light

of the close analogy to constitutional materials, where the . . . Court cites and

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19-14650 JORDAN, J., Dissenting 8

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.

debates The Federalist Papers as though they were barnacles attached to the

Constitution.” Eskridge, Interpreting Law, at 247. And if the majority is able

to rely on sources like the Senate’s legislative drafting manual, I don’t see why

the collective view of those who drafted and proposed what became §

3553(f)(1) is taboo.

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19-14650 JORDAN, J., Dissenting 9

2013). Here a disjunctive reading of “and” in § 3553(f)(1) makes a

lot of sense.

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

7 Things would be markedly different if, for example, subsection (f)(1)(A) said

“more than 6 criminal history points” because then a defendant with a single

3-point offense and a single 2-point violent offense would not have 6 criminal

history points. In that example, subsection (f)(1)(A) would still have

independent effect.

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before, I would resolve the case on that basis. See Peacock , 252

F.2d at 893 (construing the word “and” as “or” in order to prevent

a provision from being “read . . . out of the statute”).

III

As I read § 3553(f)(1)(A)-(C), Mr. Garcon was ineligible for

“safety valve” relief because he had a prior 3-point offense. With

respect, I dissent from the majority’s contrary conclusion.

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BRANCH, Circuit Judge, dissenting, in which GRANT and BRASHER,

Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II,

III.A, and III.B:

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 18 U.S.C.

§ 3553(f). Subsection (f)(1), one of five enumerated subsections

that a defendant must meet to qualify for safety-valve relief,

provides that a court must find that a “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;

18 U.S.C. § 3553(f)(1) (emphasis added). The question we must

answer in this appeal is how to interpret the “and” in subsection

(f)(1)—a question that, as it turns out, is the subject of much debate

in several of our sister circuits.1

1

The Fifth, Seventh, Eighth, and Ninth Circuits have addressed this issue. See,

e.g., United States v. Palomares, 52 F.4th 640 (5th Cir. 2022); United States v.

Pace, 48 F.4th 741(7th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018 (8th

Cir. 2022), petition for cert. filed, (U.S. Oct. 12, 2022) (No. 22-340); United

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19-14650 BRANCH, J., Dissenting 2

A circuit split now exists on this issue. On the one hand, the

Ninth Circuit has held that the “and” in § 3553(f )(1) is conjunctive

such that a defendant must possess all three criminal history criteria

to be disqualified. United States v. Lopez, 998 F.3d 431 (9th Cir.

2021). On the other hand, the Fifth, Eighth, and Seventh Circuits

have held that a defendant who possesses any one of the specified

criminal history criteria is disqualified, albeit by reaching this

conclusion in different ways. The Fifth Circuit and Eighth Circuit

held that the “and” bears a conjunctive but distributive meaning;

the Seventh Circuit held that the “and” is disjunctive. See United

States v. Palomares, 52 F.4th 640, 643–45 (5th Cir. 2022); United

States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022); United States

v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022). Thus, the interpretive

question of first impression presented in our circuit is not as simple

as the Majority makes it out to be, and the Majority’s decision

today—which sides with the Ninth Circuit—only deepens the

circuit split.

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—

States v. Lopez, 998 F.3d 431 (9th Cir. 2021), petition for reh’g en banc

pending. Similar appeals remain pending in the Fourth, Sixth, and Tenth

Circuits. See, e.g., United States v. Jones, case no. 21-4605 (4th Cir.) (oral

argument pending); United States v. Haynes, case no. 22-5132 (6th Cir.) (oral

argument held Oct. 20, 2022); United States v. Kolkman, case no. 22-8004 (10th

Cir.) (oral argument held Nov. 17, 2022).

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19-14650 BRANCH, J., Dissenting 3

(f)(1)(A)—redundant. Second, it disregards Congress’s plain

instruction that all pertinent statutory determinations for purposes

of § 3553(f)(1) are to be made “as determined under the sentencing

guidelines.” Once context and structural cues are considered, the

best reading of § 3553(f)(1) is that it bars safety-valve relief for

defendants who have any one of the enumerated criminal history

characteristics in (A)–(C). Accordingly, I would hold that Garcon

is ineligible for safety-valve relief because he has a disqualifying 3-

point offense under § 3553(f)(1)(B).

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

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19-14650 BRANCH, J., Dissenting 4

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

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(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.

18 U.S.C. § 3553(f) (2018). 2 The first safety-valve requirement,

§ 3553(f)(1), is the one at issue.

In the district court proceedings below, Garcon argued that

the “and” in subsection (f)(1)(B) was conjunctive, 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

2

Prior to the First Step Act amendment, § 3553(f)(1) disqualified any defendant

from safety-valve relief who had “more than 1 criminal history point, as

determined under the sentencing guidelines.” See 18 U.S.C. § 3553(f)(1)

(2016).

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19-14650 BRANCH, J., Dissenting 6

characteristics in § 3553(f)(1)(A)–(C), then he is ineligible for safety-

valve relief. The district court determined that § 3553(f)(1) was

unambiguous, and “[t]he plain meaning of the statute require[d] all

three subsections . . . to be met before the defendant becomes

ineligible for safety valve [relief].” The district court noted that its

reading “create[d] an absurd result,” but that it was bound to apply

the plain language of the statute.

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 18 U.S.C. § 3553(f)(1).” United States v. Garcon, 23 F.4th 1334

(11th Cir. 2022).

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

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the disqualifying criminal history characteristics listed in (A)–(C).

Alternatively, the government maintained that the prior panel

correctly determined that the “and” in § 3553(f)(1) is disjunctive.

Under either scenario, the result is the same—if a defendant

possesses any one of the specified criminal history characteristics,

then he is ineligible for safety-valve relief.

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

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19-14650 BRANCH, J., Dissenting 8

reading of § 3553(f)(1) is that a defendant is ineligible for safety-

valve relief if he has any one of the three disqualifying criminal

history characteristics set forth in § 3353(f)(1)’s safety-valve

eligibility checklist. Thus, Garcon would be ineligible for safety-

valve relief because he has a disqualifying 3-point offense under

§ 3553(f)(1)(B). Consequently, I respectfully dissent because the

Majority’s interpretation is contrary to the text of the statute when

considered in context and violates the canon against surplusage.

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.

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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 18 U.S.C. § 3553(f)(1). “[O]ur authority

to interpret statutory language is constrained by the plain meaning

of the statutory language in the context of the entire statute, as

assisted by the canons of statutory construction.” Edison, 604 F.3d

at 1310.

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

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19-14650 BRANCH, J., Dissenting 10

Dictionary (2005). Thus, the word “and” is presumed to bear its

ordinary conjunctive meaning. See Am. Bankers Ins. Grp. v.

United States, 408 F.3d 1328, 1332 (11th Cir. 2005). But the

conjunctive presumption given the term “and” by the ordinary-

meaning canon is rebuttable. Although words are presumed to

bear their ordinary meaning, context can dictate otherwise. Scalia

& Garner, supra, at 70; see also Am. Bankers Ins., 408 F.3d at 1332

(explaining that “the word ‘and’ is presumed to be used in its

ordinary sense, that is, conjunctively,” “unless the context dictates

otherwise”). Accordingly, rather than viewing the term “and” in

isolation, we must “look to the entire statutory context,” DBB, Inc.,

180 F.3d at 1281, and we must “give effect, if possible, to every

word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979). Indeed, statutory interpretation “is a holistic endeavor. A

provision that may seem ambiguous in isolation is often clarified

by the remainder of the statutory scheme . . . .” United Sav. Ass’n

of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371

(1988). Once context and structural cues are considered, the best

reading of the “and” in § 3553(f)(1) is that it operates disjunctively.

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.,

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19-14650 BRANCH, J., Dissenting 11

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

3

Decisions issued by the former Fifth Circuit before October 1, 1981, are

binding precedent in our Circuit. Bonner v. City of Prichard, 661 F.2d 1206,

1207 (11th Cir. 1981) (en banc).

4

Judge Newsom’s concurrence implies that I am breaking new ground by

construing “and” to mean “or.” Newsom, J., Concurring Op. at 3 (“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.’”). Not

so. Rather, as we noted in Peacock—like it or not—courts often face imperfect

drafting and, as a result, “are often compelled to construe ‘or’ as meaning

‘and,’ and again ‘and’ as meaning ‘or.’” Peacock, 252 F.2d at 893 (quoting

United States v. Fisk, 70 U.S. 445, 447 (1865)); see, e.g., Confederated Tribes

& Bands of Yakama Nation v. Yakima Cnty., 963 F.3d 982, 990 (9th Cir. 2020)

(“[J]ust because the ordinary meaning of ‘and’ is typically conjunctive does not

mean ‘and’ cannot take on other meaning in context. Indeed, ‘and’ can also

mean ‘or’ in some circumstances.” (internal citation omitted)); OfficeMax, Inc.

v. United States, 428 F.3d 583, 588 (6th Cir. 2005) (explaining that in the tax

code, “Congress used ‘and’ in more than one sense . . . giving it a conjunctive

meaning (requiring all items) in some places and giving it a disjunctive or

cumulative meaning (allowing any of the items) in other places”); United

States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (holding that “or” in 21 U.S.C.

§ 802(32) is conjunctive); United States v. Gomez-Hernandez, 300 F.3d 974,

978–79 (8th Cir. 2002) (holding that the “and” in the “crime of violence”

definition in U.S.S.G. § 2L1.2(b)(1)(A) is disjunctive), abrogated on other

grounds by, Descamps v. United States, 570 U.S. 254 (2013); Bruce v. First Fed.

Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 714–17 (5th Cir. 1988)

(holding that the term “and” in 12 U.S.C. § 1464(q)(1) is disjunctive); see also

Bryan A. Garner, A Dictionary of Modern Legal Usage 55 (2d ed. 1995)

(“Oddly, and is frequently misused for or where a singular noun, or one of two

nouns, is called for. . . . Sloppy drafting sometimes leads courts to recognize

that and in a given context means or, much to the chagrin of some judges.”).

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(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.

When interpreting a statute—and certainly where, as here,

there is more than one reasonable interpretation of a statutory

term—we can look to the canons of statutory construction as a

guide. “The canons assist the Court in determining the meaning

of a particular statutory provision by focusing on the broader,

statutory context.” CBS Inc. v. PrimeTime 24 Joint Venture, 245

F.3d 1217, 1225 (11th Cir. 2001). Looking at the entire statutory

context and adhering to our obligation to give effect to every word,

if possible, that Congress used, there is a strong contextual basis for

reading the “and” in § 3553(f)(1) disjunctively. Quite simply, the

statutory context establishes that if the “and” is read conjunctively,

then subsection (A) is rendered superfluous. Specifically, for each

criminal history criterion in subsections (A), (B), and (C), Congress

included the language, “as determined under the sentencing

guidelines.” If a defendant has a prior 3-point offense “as

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19-14650 BRANCH, J., Dissenting 13

determined under the sentencing guidelines” under subsection (B),

and a prior 2-point violent offense “as determined under the

sentencing guidelines” under subsection (C), then it follows that he

necessarily has 5 criminal history points—i.e., more than 4 criminal

history points, excluding any 1-point offenses for purposes of

subsection (A) “as determined under the sentencing guidelines.”

Thus, if the “and” in § 3553(f)(1) is read conjunctively, then

subsection (A) has no independent operation and is superfluous.

On the other hand, reading “and” disjunctively avoids rendering

subsection (A) superfluous and gives every part of § 3553(f)(1)

meaning.

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).

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Accordingly, I would hold that the “and” in § 3553f)(1) is

disjunctive. 5

Consequently, I agree with the Seventh Circuit that the

conjunctive interpretation advanced by Garcon and adopted by the

5

I note that the distributive approach advanced by the government and

endorsed by the Eighth and Fifth Circuits is an equally strong interpretation

given the context and structure of § 3553(f)(1), and it renders the same result

as the disjunctive reading. As we have recognized, when used as a

conjunctive, the word “and” “can be used either ‘jointly’ (e.g., “both A and B”)

or ‘severally’ (e.g., “A and B meaning A or B, or both”).” Shaw, 605 F.3d at

1254 (alterations adopted) (quotation omitted). Here, if the conjunctive “and”

is read in its distributive “several” sense—as the Eighth Circuit and Fifth

Circuit have held—then, as with a disjunctive reading of “and,” a defendant

similarly is ineligible for safety-valve relief if he has any one of the three

disqualifying criminal history characteristics in § 3553(f)(1). See Palomares,

52 F.4th at 643–45 (holding that the “and” in § 3553(f)(1) is distributive “such

that ‘does not have’ independently applies to each item in” § 3553(f)(1)(A)–

(C)); Pulsifer, 39 F.4th at 1021 (explaining that as applied to § 3553(f)(1), the

“‘distributive’ sense of the word [‘and’] would mean 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.”).

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.

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Majority “creates more problems than solutions and renders a

portion of the statute superfluous.” Pace, 48 F.4th at 754; see also

Palomares, 52 F.4th at 645(explaining that under a conjunctive

interpretation of “and” “[§] 3553(f)(1)(A) would be surplusage”).

The Majority adheres too rigidly to the ordinary-meaning and

consistent usage canons, 6 at the expense of the “cardinal principle

of statutory construction that a statute ought, upon the whole, to

be so construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW Inc., 534

U.S. at 31 (quotations omitted); see also Parker Drilling Mgmt.

Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (explaining that

it is a “cardinal principle of interpretation that courts must give

effect, if possible, to every clause and word of a statute” (quoting

Loughrin v. United States, 573 U.S. 351, 358 (2014))). It is true that

the canons of construction “are not mandatory rules.” Chickasaw

Nation v. United States, 534 U.S. 84, 94 (2001) (quotation omitted).

But here, it is possible to give effect to every word of a statute—

but only by adopting a disjunctive reading of “and.” As a result, we

should give the canon against surplusage particular weight.

6

Related to the ordinary-meaning canon is the canon of consistent usage,

which is the general principle that a term ordinarily bears the same meaning

each time it is used in a given statute. Scalia & Garner, supra, at 170–73.

Similar to the ordinary-meaning canon, “the presumption of consistent usage

readily yields to context.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)

(quotation omitted).

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As for the consistent usage and ordinary-meaning canons,

“[s]pecific canons are often countered by some maxim pointing in

a different direction.” Id. (alteration adopted) (quotation omitted).

See also Scalia & Garner, supra, at 59. Such is the case here. 7

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.

7

The Majority contends that its conjunctive interpretation is “buttressed” by

section 302(a) of the Senate’s Legislative Drafting Manual because it directs

that “and” should be used “to indicate that a thing is included in the class only

if it meets all of the criteria.” Office of Legislative Counsel, U.S. Senate, Legis.

Drafting Manual § 302(a) (1997). See https://law.yale.edu/sites/default/

files/documents/pdf/Faculty/SenateOfficeoftheLegislativeCounsel_Legislat

iveDraftingManual%281997%29.pdf. I am skeptical as a general matter of the

value of the legislative drafting manual as an interpretative aid—it is

infrequently and rarely relied upon by courts (by my count it has been cited in

only 15 published opinions in the Supreme Court and across the circuits).

Further, it is clear that Congress does not strictly abide by its provisions.

Indeed, the Majority ignores that subsection (c) of section 302 also provides

that “[i]n a statement in the negative, ‘or’ is almost always the correct

word . . . .” Id. § 302(c). Section 3553(f)(1) is just such a statement in the

negative, yet Congress used “and,” thereby contradicting the express guidance

of the drafting manual. Given that Congress does not adhere to the guidance

of the drafting manual, its value as an interpretive aid is negligible at best.

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Rather, Garcon and the Majority attempt to avoid the superfluity

problem with subsection (A) by proffering the misguided

explanation that “prior offenses” which do not score criminal

history points for purposes of subsection (A) should nonetheless be

scored and considered 3-point offenses or 2-point violent offenses

for purposes of § 3553(f)(1)(B) and (C). 8 Under this sometimes-we-

count-sometimes-we-don’t theory, a prior offense could be

“worth” criminal history points for purposes of § 3553(f)(1)(B) and

(C) but actually add no points to the defendant’s criminal history

score for purposes of § 3553(f)(1)(A) due to either the age of the

offense or the single-sentence rule.9 I disagree for several reasons.

8

I note that the unanimous panel in the Eighth Circuit squarely rejected this

approach. See Pulsifer, 39 F.4th at 1020. And it was not endorsed by the

majorities in either Pace or Palomares—however, the dissenting judges in

both Pace and Palomares embrace the same theory that Garcon and the

Majority here advance. Pace, 48 F.4th at 763–64 (Wood, J., dissenting in part);

Palomares, 52 F.4th at 655–56 (Willett, J., dissenting).

9

Although the Ninth Circuit in Lopez held that the “and” in § 3553(f)(1) is

conjunctive and that there was no surplusage problem with subsection (A), it

did so for very different reasons than the Majority adopts here. 998 F.3d at

436–40, petition for reh’g en banc pending. A majority of the Ninth Circuit

held that a three-point offense under subsection (B) could simultaneously

satisfy subsection (C) if it was for a violent offense, leaving a defendant with

less than 4 criminal history points for purposes of (A)—meaning subsection A

was not superfluous. Id. at 440. Notably, neither Garcon nor the Majority

here pursued the Lopez line of reasoning in this case. And for good reason—

the problem with the Lopez majority’s reasoning, as noted by Judge M. Smith,

who concurred in part, dissented in part, and concurred in the judgment in

Lopez, is that the Lopez majority’s reasoning effectively “rewrites the plain

language of subsection (C) to read “a prior violent offense of at least 2 points.”

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First, this approach violates the plain text of the statute. As

discussed previously, for each criterion in subsections (A), (B), and

(C), Congress included the language, “as determined under the

sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(A)–(C). In other

words, Congress’s directive is clear—in determining whether “a

defendant does not have” (A) “more than 4 criminal history points,

excluding any criminal history points from 1-point offenses,” (B) “a

prior 3-point offense,” and (C) “a prior 2-point violent offense,”

courts should 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). See

Gall v. United States, 552 U.S. 38, 50 n.6 (2007) (explaining in the

context of another subsection of § 3553 that “[t]he fact that

§ 3553(a) explicitly directs sentencing courts to consider the

Guidelines supports the premise that district courts must begin

their analysis with the Guidelines and remain cognizant of them

throughout the sentencing process”); Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253 (1992) (“[C]ourts must presume that a

legislature says in a statute what it means and means what it says

there.”); Palomares, 52 F.4th at 646 (explaining that Congress

“explicitly incorporated the Sentencing Guidelines by reference” in

Id. at 445 (M. Smith, J., concurring in part, dissenting in part, and concurring

in the judgment) (emphasis added); see also Palomares, 52 F.4th at 645–46

(holding that the Lopez majority’s reasoning “violates the plain wording of

§ 3553(f)(1)(C)” and disregards the “as determined under the sentencing

guidelines” language in the statute).

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§ 3553(f)(1)). The Majority’s inclusion of “prior offenses” that do

not score criminal history points for purpose of § 3553(f)(1)(B) and

(C) violates Congress’s plain directive.

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 were

separated by an intervening arrest (i.e., the defendant is arrested for

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the first offense prior to committing the second offense”))

(emphasis added); Id. § 4A1.2(c)(1) (explaining that “[s]entences for

the following prior offenses . . . are counted only if . . . .”) (emphasis

added). Furthermore, we have consistently understood “prior

sentences” as used in the guidelines to be synonymous with a

defendant’s prior offenses of conviction. See United States v.

Glover, 154 F.3d 1291, 1293 n.3 (11th Cir. 1989) (“Section 4A1.1

assigns criminal history points for certain prior convictions based

on a variety of factors, including the length of the sentence of

imprisonment imposed.”); United States v. Orozco, 121 F.3d 628,

630 (11th Cir. 1997) (“Under the sentencing guidelines, criminal

history points are assigned for prior criminal convictions.”).

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.

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(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 point 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

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make clear that a court cannot “add” criminal history points for a

prior sentence, but then not count those points for purposes of

determining the criminal history score.

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 have 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

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§ 3553(f)(1)(B) and (C) because, as discussed previously, under the

sentencing guidelines prior offenses of a certain age or that were

treated as part of a single sentence do not receive points; therefore,

in order for these unscored prior offenses to be a 3-point offense or

a 2-point violent offense for purposes of (B) and (C), the “as

determined under the sentencing guidelines” language must be

removed. Alternatively, if no language is removed, then for the

Majority’s theory to work, we would need to add language to the

statute—i.e.,“a prior 3-point offense, as determined under the

guidelines, regardless of whether the offense was counted ” or “a

prior 3-point offense as determined solely under § 4A1.1 of the

guidelines without regard to the counting rules of the guidelines.”

But adding words to or removing words from a statute is a task

which the judiciary is not at liberty to undertake. See Friends of

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1224 (11th

Cir. 2009) (“[W]e are not allowed to add or subtract words from a

statute; we cannot rewrite it.”); see also Blount v. Rizzi, 400 U.S.

410, 419 (1971) (“[I]t is for Congress, not this Court, to rewrite the

statute.”). Thus, § 3553(f)(1) cannot support the strained reading

that Garcon and the Majority advance to support its conjunctive

“and” interpretation.

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

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19-14650 BRANCH, J., Dissenting 24

alone would not be a reason to vary from the text. See Small v.

United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting)

(explaining that “[w]e should employ [the] canon [against

absurdities] only where the result of applying the plain language

would be, in a genuine sense, absurd, i.e., where it is quite

impossible that Congress could have intended the result . . . and

where the alleged absurdity is so clear as to be obvious to most

anyone” (quotation omitted)). Nevertheless, I note that under the

Majority’s interpretation virtually every criminal defendant will

pass § 3553(f)(1)’s requirements and qualify for safety-valve relief,

including serious, repeat violent offenders. The only defendants

excluded under the Majority’s interpretation are those that have

more than 4 criminal history points, AND a prior 3-point offense,

AND a prior 2-point violent offense—a unique criminal history

cocktail to be sure. In other words, there is no limit on the number

of criminal history points or three point-offenses or two-point

violent offenses a defendant may have, as long as he does not have

all three components of the criminal history cocktail. See also

Pace, 48 F.4th at 755 (concluding that the conjunctive

interpretation “produces absurd results” because it would “afford

leniency to defendants with more serious offenses (those serious

enough to receive three criminal history points) while denying

safety-valve eligibility to the defendants with less serious offenses

that received only two points”).

Although the Majority suggests that the government’s

concern that serious, repeat violent offenders will qualify for safety-

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19-14650 BRANCH, J., Dissenting 25

valve relief is unfounded because § 3553(f)(2)–(5) will often

disqualify those types of defendants, the Majority ignores that

subsections (f)(2)–(5) disqualify defendants based on conduct in

connection with the instant offense. In contrast, subsection (f)(1)

is the only subsection focused on a defendant’s prior criminal

history. Accordingly, (f)(2)–(5) do not operate to disqualify

offenders with a serious, repeat, or violent criminal history from

safety-valve relief. The application of the Majority’s theory to

Garcon demonstrates this point. Garcon had three criminal history

points, but four 3-point offenses for purposes of subsection (B) (one

prior offense that scored 3 points and three older ones that did not),

and two 1-point offenses (that did not score points due to age). Yet,

he still qualifies for safety-valve relief under the Majority’s

interpretation. In fact, even if Garcon had 20 3-point prior offenses

(totaling 60 criminal history points), he would qualify for safety-

valve relief because he does not have a 2-point violent offense.

Thus, the government has a legitimate concern that serious, repeat

offenders—even defendants with prior convictions for murder—

may qualify for safety-valve relief.

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),

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19-14650 BRANCH, J., Dissenting 26

better adhering to the text of the statute by giving each provision

its full effect. Consequently, the ordinary-meaning canon and the

related consistent usage canon marshaled by the Majority must

readily yield to context.

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

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19-14650 BRANCH, J., Dissenting 27

lenity. Moskal v. United States, 498 U.S. 103, 108 (1990); United

States v. Shabani, 513 U.S. 10, 17 (1994); Smith v. United States, 508

U.S. 223, 239 (1993). Similarly, “[a] statute is not ‘ambiguous’ for

purposes of lenity merely because there is a division of judicial

authority over its proper construction.” Reno v. Koray, 515 U.S.

50, 64 (1995) (quotations omitted). Rather, the rule of lenity is

reserved for when “grievous ambiguity” remains “even after resort

to ‘the language and structure, legislative history, and motivating

policies of the statute.’” Moskal, 498 U.S. at 108 (quoting Bifulco

v. United States, 447 U.S. 381, 387 (1980)); see also Barber v.

Thomas, 560 U.S. 474, 488 (2010); Chapman v. United States, 500

U.S. 453, 463 (1991); Shular v. United States, 140 S. Ct. 779, 788

(2020) (Kavanaugh, J., concurring). A grievous ambiguity exists

when, after applying all the tools of statutory interpretation, “the

Court must simply guess as to what Congress intended.’” Barber,

560 U.S. at 488 (quoting Bifulco, 447 U.S. at 387). As a result, “the

rule of lenity rarely comes into play.” Shular, 140 S. Ct. at 788

(Kavanaugh, J., concurring) (emphasis added).

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

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19-14650 BRANCH, J., Dissenting 28

of lenity has no application in the absence of grievous ambiguity in

the statute, and one tool of statutory construction pointing in a

different direction does not mean that there is a grievous ambiguity

in the statute. Moskal, 498 U.S. at 108; Shabani, 513 U.S. at 17;

Smith, 508 U.S. at 239. Here, after considering the structure and

context of the statute and applying the traditional tools of statutory

construction, a best reading of “and” in § 3553(f)(1) clearly

emerges. To the extent there remains ambiguity in § 3553(f)(1), it

is far from grievous. Accordingly, the rule of lenity has no role to

play in the interpretation of § 3553(f)(1), and I agree with the Fifth

and Seventh Circuits on this point. See Palomares, 52 F.4th at 647;

Pace, 48 F.4th at 755 (rejecting the argument that the rule of lenity

applied and explaining that the two interpretations of “and” in

§ 3553(f)(1) were not “equally plausible”). The Majority’s dicta

about the rule of lenity runs afoul of the Supreme Court’s teachings

on the rule. If the Majority were to faithfully apply the rule, it too

would conclude that the rule has no application here.

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-

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19-14650 BRANCH, J., Dissenting 29

valve relief for defendants who have any one of the enumerated

criminal history characteristics in (A)–(C). Thus, Garcon is

ineligible for safety-valve relief because he has a disqualifying 3-

point offense under § 3553(f)(1)(B), and I would vacate his sentence

and remand for resentencing. The Majority’s interpretation is

contrary to the text of the statute when considered in context and

renders portions of the statute superfluous. Consequently, I

respectfully dissent.

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BRASHER, Circuit Judge, Dissenting:

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 U.S.S.G. § 4.1.1 et seq. And it is

reflected in important federal statutes that impose mandatory

minimums for offenders based on criminal history—the number of

crimes committed in the past, the severity of the crime, the

violence associated with those crimes, etc. See, e.g., 18 U.S.C. §

924(e); 21 U.S.C. § 841(b)(1)(A)(viii).

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

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19-14650 BRASHER, J., Dissenting 2

offender. So it is perfectly rational to account for an offender’s

criminal history when imposing a sentence for a new offense.

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

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19-14650 BRASHER, J., Dissenting 3

justification for such a result, and neither do I. Under the Court’s

decision, only an unusually hapless defendant with an odd

combination of past offenses will be subject to a mandatory

minimum because of his criminal history. I fear that, if we keep

going down this path, our criminal-history-based sentencing

scheme will become so arbitrary as to raise serious questions about

its constitutionality. See Chapman v. United States, 500 U.S. 453,

464–65 (1991) (under the Due Process Clause of the Fifth

Amendment, a sentence may not be based “on an arbitrary

distinction”). And I think this possibility is another point in favor of

Judge Branch’s perfectly reasonable reading of the statute.

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

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19-14650 BRASHER, J., Dissenting 4

mandatory minimum sentence in favor of the guidelines range” by

the safety valve “may vary upward to and even past the mandatory

minimum point after considering the § 3553(a) factors—so long as

the final sentence is reasonable.” Quirante, 486 F.3d at 1276.

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.

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66

1 felony drug offense has become final, such person

2 shall be sentenced to a term of imprisonment of not

3 less than 20 years’’ and inserting ‘‘If any person

4 commits such a violation after a prior conviction for

5 a serious drug felony or serious violent felony has

6 become final, such person shall be sentenced to a

7 term of imprisonment of not less than 15 years’’;

8 and

9 (2) in paragraph (2), in the matter following

10 subparagraph (H), by striking ‘‘felony drug offense’’

11 and inserting ‘‘serious drug felony or serious violent

12 felony’’.

13 (c) APPLICABILITY TO PENDING CASES.—This sec-

14 tion, and the amendments made by this section, shall

15 apply to any offense that was committed before the date

16 of enactment of this Act, if a sentence for the offense has

17 not been imposed as of such date of enactment.

18 SEC. 402. BROADENING OF EXISTING SAFETY VALVE.

19 (a) AMENDMENTS.—Section 3553 of title 18, United

20 States Code, is amended—

21 (1) in subsection (f)—

22 (A) in the matter preceding paragraph

23 (1)—

24 (i) by striking ‘‘or section 1010’’ and

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25 inserting ‘‘, section 1010’’; and

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1 (ii) by inserting ‘‘, or section 70503 or

2 70506 of title 46’’ after ‘‘963)’’;

3 (B) by striking paragraph (1) and insert-

4 ing the following:

5 ‘‘(1) the defendant does not have—

6 ‘‘(A) more than 4 criminal history points,

7 excluding any criminal history points resulting

8 from a 1-point offense, as determined under the

9 sentencing guidelines;

10 ‘‘(B) a prior 3-point offense, as determined

11 under the sentencing guidelines; and

12 ‘‘(C) a prior 2-point violent offense, as de-

13 termined under the sentencing guidelines;’’; and

14 (C) by adding at the end the following:

15 ‘‘Information disclosed by a defendant under this sub-

16 section may not be used to enhance the sentence of the

17 defendant unless the information relates to a violent of-

18 fense.’’; and

19 (2) by adding at the end the following:

20 ‘‘(g) INADEQUACY OF CRIMINAL HISTORY.—

21 ‘‘(1) IN GENERAL.—If subsection (f) does not

22 apply to a defendant because the defendant does not

23 meet the requirements described in subsection (f)(1)

24 (relating to criminal history), the court may, upon

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25 prior notice to the Government, waive subsection

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1 (f)(1) if the court specifies in writing the specific

2 reasons why reliable information indicates that ex-

3 cluding the defendant pursuant to subsection (f)(1)

4 substantially overrepresents the seriousness of the

5 defendant’s criminal history or the likelihood that

6 the defendant will commit other crimes.

7 ‘‘(2) PROHIBITION.—This subsection shall not

8 apply to any defendant who has been convicted of a

9 serious drug felony or a serious violent felony, as

10 those terms are defined in section 102 of the Con-

11 trolled Substances Act (21 U.S.C. 802).

12 ‘‘(h) DEFINITION OF VIOLENT OFFENSE.—As used

13 in this section, the term ‘violent offense’ means a crime

14 of violence, as defined in section 16, that is punishable

15

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