Pulsifer v. United States

(Slip Opinion) OCTOBER TERM, 2023 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PULSIFER v. UNITED STATES

CERTIORAI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 22–340. Argued October 2, 2023—Decided March 15, 2024

After pleading guilty to distributing at least 50 grams of methampheta-

mine, petitioner Mark Pulsifer faced a mandatory minimum sentence

of 15 years in prison. At sentencing, he sought to take advantage of

the “safety valve” provision of federal sentencing law, which allows a

sentencing court to disregard the statutory minimum if a defendant

meets five criteria. Among those is the requirement, set out in Para-

graph (f)(1), that the sentencing court find 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.

The Government argued that Pulsifer could not satisfy that require-

ment because he had two prior three-point offenses totaling six crimi-

nal-history points. In the Government’s view, each of those prior of-

fenses disqualified him under Subparagraph B and the six total

points disqualified him under Subparagraph A. But Pulsifer claimed

he remained eligible. He pointed out that his criminal record lacked

a two-point violent offense, as specified in Subparagraph C. And in

his view, only the combination of the items listed in the subpara-

graphs could prevent him from getting safety-valve relief. The Dis-

trict Court agreed with the Government, and the Eighth Circuit af-

firmed.

Held: A defendant facing a mandatory minimum sentence is eligible for

safety-valve relief under 18 U. S. C. §3553(f)(1) only if he satisfies each

2 PULSIFER v. UNITED STATES

Syllabus

of the provision’s three conditions—or said more specifically, only if he

does not have more than four criminal-history points, does not have a

prior three-point offense, and does not have a prior two-point violent

offense. Pp. 6–28.

(a) Each party offers a grammatically permissible way to read Par-

agraph (f)(1). Under Pulsifer’s reading, the word “and” joins three fea-

tures of a defendant’s criminal history into a single disqualifying char-

acteristic; accordingly, a defendant is ineligible for the safety valve

only if he has the items listed in Subparagraphs A, B, and C in combi-

nation. In the Government’s view, “and” connects three criminal-his-

tory conditions, all of which must be satisfied to gain safety-valve re-

lief. In other words, the court must find the defendant does not have

A, does not have B, and does not have C. Each of those readings is

possible in the abstract. The choice between the two can sensibly be

made only by examining the content of Paragraph(f)(1)’s three subpar-

agraphs, including what they say, how they relate to each other, and

how they fit with other pertinent law. Pp. 6–15.

(b) The text and context of Paragraph (f)(1), as read against the

Guidelines, yield just one plausible statutory construction. The para-

graph creates an eligibility checklist, and specifies three necessary

conditions for safety-valve relief. Reading the paragraph as Pulsifer

does to set out a single condition—i.e., that the defendant not have the

combination of the characteristics listed in Subparagraphs A, B, and

C—would create two statutory difficulties that the Government’s read-

ing does not. Pp. 15–23.

(1) Pulsifer’s reading would render Subparagraph A superfluous

because a defendant who has a three-point offense under Subpara-

graph B and a two-point offense under Subparagraph C will always

have more than four criminal-history points under Subparagraph A.

That reading leaves Subparagraph A with no work to do: removing it

from the statute would make the exact same people eligible (and inel-

igible) for relief. That kind of superfluity, in and of itself, refutes Pul-

sifer’s reading. When a statutory construction “render[s] an entire

subparagraph meaningless,” this Court has noted, the canon against

surplusage applies with special force. National Assn. of Mfrs. v. De-

partment of Defense, 583 U. S. 109, 128. That is particularly true

when, as here, the subparagraph is so evidently designed to serve a

concrete function. Pp. 15–20.

(2) Pulsifer’s reading would also create a second problem related

to Paragraph (f)(1)’s gatekeeping function. The Guidelines presume

that defendants with worse criminal records—exhibiting recidivism,

lengthy sentences, and violence—deserve greater punishment. Under

the Government’s reading, Paragraph (f)(1) sorts defendants accord-

Cite as: 601 U. S. ____ (2024) 3

Syllabus

ingly. When the defendant has committed multiple non-minor of-

fenses, he cannot get relief (Subparagraph A). And so too when he has

committed even a single serious offense punished with a lengthy

prison sentence (Subparagraph B) or one involving violence (Subpara-

graph C). Pulsifer’s reading, by contrast, would allow safety-valve re-

lief to defendants with more serious records while barring relief to de-

fendants with less serious ones. A defendant with a three-point offense

and a two-point violent offense would be denied relief. But a defendant

with multiple three-point violent offenses could get relief simply be-

cause he happens not to have a two-point violent offense.

Contrary to Pulsifer’s view, that anomalous result cannot be ignored

on the ground that a sentencing judge retains discretion to impose a

lengthy sentence. If Congress thought it could always rely on sentenc-

ing discretion, it would not have created a criminal-history require-

ment in the first instance. Instead, it specified a requirement that al-

lows such discretion to operate only if a defendant’s record does not

reach a certain level of seriousness. Pulsifer’s construction of Para-

graph (f)(1) makes a hash of that gatekeeping function. Pp. 20–23.

(c) The uncontested fact that Congress amended Paragraph (f)(1) as

part of the First Step Act to make safety-valve relief more widely avail-

able does not assist in interpreting the statutory text here. Both par-

ties’ views of the paragraph widen the opportunity for safety-valve re-

lief, and Pulsifer’s interpretation is not better just because it would

allow more relief than the Government’s. “[N]o law pursues its . . .

purpose[s] at all costs.” Luna Perez v. Sturgis Public Schools, 598 U. S.

142, 150. Here, where Congress did not eliminate but only curtailed

mandatory minimums, the Court can do no better than examining Par-

agraph (f)(1)’s text in context to determine the exact contours of the

defendants to whom Congress extended safety-valve relief. P. 26.

(d) The Court rejects Pulsifer’s efforts to invoke the rule of lenity.

Lenity applies only when a statute is genuinely ambiguous. For the

reasons explained above, although there are two grammatically per-

missible readings of Paragraph (f)(1), in context its text is susceptible

of only one possible construction. That leaves no role for lenity to play.

Pp. 27–28.

39 F. 4th 1018, affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J.,

filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.

Cite as: 601 U. S. ____ (2024) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

_________________

No. 22–340

_________________

MARK E. PULSIFER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[March 15, 2024]

JUSTICE KAGAN delivered the opinion of the Court.

The “safety valve” provision of federal sentencing law ex-

empts certain defendants from mandatory minimum penal-

ties, thus enabling courts to give them lighter prison terms.

To qualify for safety-valve relief, a defendant must meet

various criteria, one of which addresses his criminal his-

tory. That criterion, in stylized form, requires that a de-

fendant “does not have A, B, and C”—where A, B, and C

refer to three ways in which past criminality may suggest

future dangerousness and therefore warrant a more severe

sentence. In brief (with details below), A, B, and C are

“more than 4 criminal history points,” a “3-point offense,”

and a “2-point violent offense.”

The question presented is how to understand the criminal-

history requirement. The Government contends that the

phrase “does not have A, B, and C” creates a checklist with

three distinct conditions. On that view, a defendant meets

the requirement (and so is eligible for safety-valve relief ) if

he does not have A, does not have B, and does not have C.

Or stated conversely, a person fails to meet the requirement

(and so cannot get relief ) if he has any one of the three. The

petitioner here instead contends that the phrase “does not

have A, B, and C” sets out a single, amalgamated condition

2 PULSIFER v. UNITED STATES

Opinion of the Court

for relief. On his reading, a defendant meets the require-

ment (and is eligible for relief ) so long as he does not have

the combination of A, B, and C. Or put conversely, he fails

to meet the requirement (and cannot get relief ) only when

he has all three. Today, we agree with the Government’s

view of the criminal-history provision.

I

Congress sometimes establishes mandatory minimum

penalties for crimes, including drug offenses. Those provi-

sions put a lower limit on a court’s sentencing discretion,

reflecting Congress’s judgment that specified conduct de-

mands no less than a specified punishment. For drug of-

fenses of the kind involved here, the existence and length of

minimum penalties typically depend on the type and quan-

tity of the drug at issue, the harm resulting from the crime,

and (relevant here) the defendant’s criminal history.

The safety-valve provision, 18 U. S. C. §3553(f ), offers

some defendants convicted of drug offenses an escape from

otherwise applicable mandatory minimums. Under the

provision, a court is to sentence a defendant “without re-

gard to any statutory minimum” if it finds that five criteria

are met. Ibid. Three of the criteria focus on characteristics

of the offense—in brief, whether the defendant used vio-

lence; whether the crime resulted in death or serious injury;

and whether the defendant acted as a ringleader. See

§3553(f )(2)–(4). One of the criteria addresses the defend-

ant’s cooperation with the Government. See §3553(f )(5).

And one—the first listed and the most relevant here—con-

cerns the defendant’s criminal history. See §3553(f )(1).

The complete text of the safety-valve provision is set out in

this opinion’s appendix.

The criminal-history requirement—we usually call it

Paragraph (f )(1)—recently underwent a substantial revi-

sion, making it easier for a defendant to meet. As originally

Cite as: 601 U. S. ____ (2024) 3

Opinion of the Court

enacted, the paragraph limited safety-valve relief to de-

fendants who “d[id] not have more than 1 criminal history

point, as determined under the sentencing guidelines.” Vi-

olent Crime Control and Law Enforcement Act of 1994, 108

Stat. 1985. What that meant in practice—we explain why

just below—was that anything more than a single minor

crime barred a defendant from gaining relief. But that is

no longer so. In the First Step Act of 2018, Congress relaxed

the safety-valve provision’s criminal-history requirement,

enabling defendants with more significant criminal records

to qualify. Pub. L. 115–391, 132 Stat. 5221. Today, Para-

graph (f )(1) is met if “the court finds at sentencing” that:

the defendant does not have—

(A) more than 4 criminal history points, excluding

any criminal history points resulting from a 1-point of-

fense, 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 un-

der the sentencing guidelines.

And if the defendant also meets Section 3553(f )’s other four

criteria, he becomes exempt from a statutory minimum.

As the text makes clear, the new Paragraph (f )(1) (like

the old one) turns on the defendant’s criminal-history

points under the Guidelines. In general, the severity of

Guidelines sentencing recommendations increases with the

number of criminal-history points the defendant has (often

called his criminal-history score). And the Guidelines as-

sign more points to more serious prior offenses. There is a

caveat to that rule, which will become pertinent later. See

infra, at 17–20. Some prior convictions, even if for serious

offenses, do not add any points to a defendant’s score. That

is true, for example, if the conviction is quite old or if it was

rendered by a foreign court. See U. S. Sentencing Guide-

lines (USSG) §4A1.2(e)(3), (h). But putting such exceptions

4 PULSIFER v. UNITED STATES

Opinion of the Court

aside, convictions resulting in longer prison sentences add

more points to a defendant’s total. As previewed above, the

Guidelines award one point for minor offenses—specifi-

cally, for those resulting in sentences of less than 60 days.

In the new Paragraph (f )(1), those minor sentences do not

matter at all: Because of the “excluding” phrase, they can-

not, either alone or in combination, prevent a defendant

from gaining safety-valve relief. But longer sentences, gen-

erating more points, fall within the paragraph’s notice. A

prison sentence of between 60 days and 13 months earns

two points under the Guidelines. See §4A1.1(b). So a con-

viction punished with that sentence will count, for purposes

of the paragraph, as a “prior 2-point offense,” assuming it is

also “violent” (as defined in a nearby provision).

§3553(f )(1)(C), (g). Moving up another notch, a sentence

exceeding 13 months earns three points under the Guide-

lines. See §4A1.1(a). So a conviction giving rise to that

greater penalty (whether or not violent) will qualify under

the paragraph as a “prior 3-point offense.” §3553(f )(1)(B).

This case involves a dispute about whether Paragraph

(f )(1) bars petitioner Mark Pulsifer from gaining safety-

valve relief. Pulsifer pleaded guilty in 2020 to distributing

at least 50 grams of methamphetamine. He faced a man-

datory minimum of 15 years in prison unless the safety-

valve provision came to his aid. The Government claimed

it did not because Pulsifer could not meet its criminal-

history requirement. Pulsifer had two relevant prior con-

victions, each for a three-point offense. In the Govern-

ment’s view, that fact disqualified Pulsifer from obtaining

relief several times over. He had not just one but two “prior

3-point offense[s],” as specified in Subparagraph B of the

requirement. And because three plus three equals six, he

also had “more than 4 criminal history points,” as specified

in Subparagraph A. But Pulsifer claimed that was still not

enough. He pointed out that his criminal record lacked a

“2-point violent offense,” as specified in Subparagraph C.

Cite as: 601 U. S. ____ (2024) 5

Opinion of the Court

And in his view, only the combination of the items listed in

the three subparagraphs—the full package, as it were—

could prevent him from getting safety-valve relief.

The District Court rejected Pulsifer’s argument, ruling

that a defendant is “ineligible for safety valve” relief if he

has any of the “three things” specified in Paragraph (f )(1).

App. to Pet. for Cert. 35a–36a. The mandatory minimum,

the court concluded, thus applied to Pulsifer’s sentence.

The Court of Appeals for the Eighth Circuit affirmed.

The court framed the question as “in what sense the statute

uses the word ‘and.’ ” 39 F. 4th 1018, 1021 (2022). In the

abstract, the court stated, the phrase “the defendant does

not have (A), (B), and (C)” might be read in two different

ways. It could mean that the defendant does not have the

combination of the “three elements listed in (A), (B), and

(C),” as Pulsifer urged. Ibid. Or it could mean, as the Gov-

ernment argued, that the defendant does not have every

one of those elements—in other words, that he does not

have (A), does not have (B), and does not have (C). In choos-

ing between those readings, the court found a “strong tex-

tual basis” to prefer the Government’s. Ibid. If Pulsifer

were right, the court explained, Subparagraph A would be

“rendered superfluous”—without the slightest effect. Ibid.

“A defendant who has a prior three-point offense under

[Subparagraph B] and a prior two-point violent offense un-

der [Subparagraph C] would always meet the criterion in

[Subparagraph A], because he would always have more

than four criminal history points.” Ibid. That was reason

enough to read Paragraph (f )(1) the other way—as an “eli-

gibility checklist” of three distinct conditions, each of which

the defendant must meet to qualify for safety-valve relief.

Id., at 1022. And on that view, the court concluded, Pulsifer

could not escape a mandatory minimum: Because he had a

pair of three-point offenses, it was simply “immaterial” that

he did not also “have a prior two-point violent offense.” Id.,

at 1022–1023.

6 PULSIFER v. UNITED STATES

Opinion of the Court

We granted certiorari, 598 U. S. ___ (2023), because the

Courts of Appeals have split over how to read the safety-

valve provision’s criminal-history requirement.1 Today, we

adopt the Government’s view, and so affirm the decision be-

low. A defendant is eligible for safety-valve relief under

Paragraph (f )(1) only if he “does not have” all three of the

items listed—or said more specifically, does not have four

criminal-history points, does not have a prior three-point

offense, and does not have a prior two-point violent offense.

The paragraph thus creates an eligibility checklist, and de-

mands that a defendant satisfy every one of its conditions.

II

We start with Paragraph (f )(1)’s grammatical structure,

because Pulsifer’s main argument (and initially the dis-

sent’s) is that it resolves this case. See Brief for Pulsifer

16–20; post, at 7–8 (opinion of GORSUCH, J.).2 Recall that

the paragraph requires a court to find that the defendant

does not have the features specified in Subparagraphs A, B,

and C. “Because Congress used ‘and’ to connect” those sub-

paragraphs, Pulsifer contends, “a defendant is ineligible”

for safety-valve relief “only if he has the complete combo”—

i.e., more than four criminal-history points plus a prior

three-point offense plus a prior two-point violent one. Brief

for Pulsifer 19. That result follows, Pulsifer claims, simply

——————

1 Compare 39 F. 4th 1018 (CA8 2022) (case below) (holding that a de-

fendant is eligible for relief only if he does not have all three of the items

listed); United States v. Palomares, 52 F. 4th 640 (CA5 2022) (same);

United States v. Haynes, 55 F. 4th 1075 (CA6 2022) (same); United States

v. Pace, 48 F. 4th 741 (CA7 2022) (same), with United States v. Jones, 60

F. 4th 230 (CA4 2023) (holding that a defendant is eligible for relief so

long as he does not have any one of the items listed); United States v.

Lopez, 998 F. 3d 431 (CA9 2021) (same); United States v. Garcon, 54

F. 4th 1274 (CA11 2022) (en banc) (same).

2 As later noted, infra, at 15, the dissent ultimately comes around to

the view that the meaning of Paragraph (f )(1) depends on context, see

post, at 15–16.

Cite as: 601 U. S. ____ (2024) 7

Opinion of the Court

from “what ordinary grammar says.” Tr. of Oral Arg. 3. But

in fact grammar does not say so much. There are two gram-

matically permissible ways to read Paragraph (f )(1). Yes,

one is Pulsifer’s. But the other is the Government’s—that

a defendant is ineligible for relief unless he can satisfy each

of the paragraph’s three conditions. The choice between the

two, as this Part shows, is not a matter of grammatical

rules. It can sensibly be made only by examining, as the

next Part does, the paragraph’s content, as read in conjunc-

tion with the Guidelines. Or, as we usually say in statutory

construction cases, by reviewing text in context.

“And,” in grammatical terms, is of course a conjunction—

a word whose function is to connect specified items. Both

parties here agree with that elementary proposition. See

Brief for Pulsifer 18; Brief for United States 14. The word

“and,” each might say, means . . . well, and. Indeed, to the

extent elaboration is needed, both parties select the same

definition from the same dictionary. “And,” they recite in

concert, means “along with or together with.” Webster’s

Third New International Dictionary 80 (1993); see Brief for

Pulsifer 18; Brief for United States 14.

Where things get more complicated is in figuring out

what goes along or together with what—or otherwise said,

what the “and” in Paragraph (f )(1) connects. As Pulsifer

reads the paragraph, the “and” joins three features of a de-

fendant’s criminal history into a single disqualifying char-

acteristic. The conjunction of Subparagraphs A, B, and C

produces the thing he labels “the complete combo”; the

question then becomes whether the defendant has or “does

not have” that full package. Brief for Pulsifer 19;

§3553(f )(1). Some grade-school math notation may help re-

veal the proposed ordering. It is as if Pulsifer inserted pa-

rentheses into the paragraph, so that it asks whether “the

defendant does not have (A, B, and C).” Much as a student

would solve “5 - (2 + 1)” by first adding 2 and 1 and then

subtracting the sum from 5, so Pulsifer wants a court first

8 PULSIFER v. UNITED STATES

Opinion of the Court

to combine A, B, and C and then to determine whether the

defendant has the total. By contrast, the Government reads

the statute without parentheses, and so arrives at a differ-

ent conclusion. On its view, the “does not have” language

operates on A, and on B, and on C consecutively, rather

than on the three combined. So the “and” connects three

criminal-history conditions, all of which must be satisfied

to gain safety-valve relief. Or said another way, Paragraph

(f )(1) requires that the defendant does not have A, and also

does not have B, and finally does not have C. If he has even

one, he cannot complete the requisite checklist and so can-

not gain the safety valve’s benefits.

The Government’s view rests on a routine aspect of ex-

pression—that an introductory phrase (here, “does not

have”) may apply to, or modify, several terms coming after

it, one by one by one. Suppose a person says after visiting

a bookstore, “I bought a novel, a memoir, and a travel

guide.” That is just a more efficient way of saying “I bought

a novel, bought a memoir, and bought a travel guide.” The

verb in the sentence carries over—some grammarians use

the term “distribut[es]”—to every item on the ensuing list.

B. Garner, Dictionary of Legal Usage 639 (3d ed. 2011).

That practice is pervasive, indeed inescapable, in every

kind of speech and writing. Consider this, perhaps half-

remembered line from childhood: “On Saturday he ate

through one piece of chocolate cake, one ice-cream cone, one

pickle, one slice of Swiss cheese, one slice of salami, one lol-

lipop, one piece of cherry pie, one sausage, one cupcake, and

one slice of watermelon.” E. Carle, The Very Hungry Cat-

erpillar 15–16 (2018). The introductory words “ate

through” apply independently and equivalently to each of

the ten foodstuffs that follow. Or if that example seems too

trifling, take a couple from the Constitution. Article III pro-

vides that “[t]he judicial Power shall extend to all Cases . . .

arising under this Constitution, the Laws of the United

States, and Treaties.” §2. That statement means—but says

Cite as: 601 U. S. ____ (2024) 9

Opinion of the Court

more concisely—that the judicial power extends to cases

arising under the Constitution; extends to cases arising un-

der federal law; and extends to cases arising under treaties.

The provision does not (as Pulsifer’s view might suggest)

limit judges to hearing the few cases arising simultaneously

under all three kinds of law. Similarly, Article I of the Con-

stitution enables Congress “[t]o regulate Commerce with

foreign Nations, and among the several States, and with

the Indian Tribes.” §8, cl. 3. That authorization goes to

commerce involving each kind of entity, not just to com-

merce involving the three at once. So again, the verb

phrase operates on each term seriatim, not on the combina-

tion of the three.3

Pulsifer claims that verb phrases do not work the same

way when “framed in the negative.” Reply Brief 2. One of

his favorite examples is “don’t drink and drive.” Brief for

Pulsifer 16. That “doesn’t mean,” he observes, “that you

shouldn’t drink and that you shouldn’t drive, but only

[means] that you shouldn’t do both at the same time.” Id.,

at 18 (emphasis deleted). So too, he says, for “don’t clean

——————

3 The dissent wrongly views this ordinary feature of language as a kind

of uncanny trick. To understand a verb as applying to each of several

ensuing terms (the dissent says) is to choose verbal “gymnastics” over

“natural” meaning. Post, at 10. The dissent’s primary proof is that such

phrases can be rendered “with deleted words stricken and new ones

added in bold.” Ibid. Well, yes, but so what? It is true, as the dissent

might say, that “I bought (1) a novel, (2) a memoir, and (3) a travel guide”

is equivalent in meaning to “I bought (1) bought a novel, (2) bought a

memoir, and (3) bought a travel guide.” Cf. ibid. (similarly representing

Paragraph (f)(1)). But ordinary people still understand the verb to carry

over to all the books in the sentence. The strikeouts and boldface, far

from evidencing manipulation of meaning, just illustrate how expression

can naturally work. And that is so, contra the dissent (post, at 13–14),

when a sentence’s subject is singular (rather than plural)—as shown by

most of the sentences in the paragraph above, many similar ones to come,

see infra, at 10–11, and the vast number a reader can make up on her

own.

10 PULSIFER v. UNITED STATES

Opinion of the Court

the bathroom with bleach and ammonia.” Id., at 12 (em-

phasis deleted). The prohibition does not go to bleach alone

and to ammonia alone; instead, it goes only to the two in

conjunction. To return to math notation, the statement is

best understood as “don’t clean with (bleach and ammo-

nia),” rather than “don’t clean with bleach and don’t clean

with ammonia.” See supra, at 7–8. And so too, he says,

here: Paragraph (f )(1) conditions relief on a court’s finding

that a defendant “does not have (A, B, and C),” rather than

that he “does not have A, does not have B, and does not have

C.”

But for every negative statement Pulsifer offers up, an-

other cuts the opposite way (suggesting, as we later discuss,

that here grammar is not the primary determinant of

meaning). Consider two sentences discussed in The Cam-

bridge Grammar of the English Language. If someone says

“I’m not free on Saturday and Sunday,” the Grammar notes,

he most likely means “I’m not free on Saturday and I’m not

free on Sunday”; he is not saying that although he cannot

go away for a full weekend, he can make plans on one of

those days. See R. Huddleston & G. Pullum 1298–1299

(2002) (emphasis deleted). Similarly, if a person says, “I

didn’t like his mother and father,” he probably means “I

didn’t like his mother and I didn’t like his father”—not that

he didn’t like the two in combination, but thought that ei-

ther alone was fine. Ibid. (emphasis deleted).4 Or take an

example raised in oral argument pertaining, like Para-

graph (f )(1), to an eligibility requirement: A hospital tells

you that it can perform a medical procedure only if you

“don’t eat, drink, and smoke for the preceding 12 hours.”

See Tr. of Oral Arg. 6–8. Even Pulsifer’s counsel agreed

——————

4 So too, a manual of contract drafting observes that “[t]he more natu-

ral meaning” of “Acme shall not notify Able and Baker” is “Acme shall

not notify Able and shall not notify Baker,” not that he shall not notify

the two together, but may notify either one. K. Adams, A Manual of Style

for Contract Drafting §11.16, p. 212 (3d ed. 2013) (emphasis deleted).

Cite as: 601 U. S. ____ (2024) 11

Opinion of the Court

that he would not feel free to have a steak and martini so

long as he abstained from tobacco. See ibid. The “don’t”

here, unlike in Pulsifer’s examples, carries over to each ac-

tion on the list (eating, drinking, and smoking alike)—not

just to the three in tandem.

And if those examples of negatively framed statements,

both Pulsifer’s and ours, seem a tad conversational, con-

sider a statute strikingly similar in form to Paragraph

(f )(1). First return to that paragraph to remind yourself of

how it looks and reads. See supra, at 3. Now check out 34

U. S. C. §20101(f ):

As used in this section, the term “offenses against the

United States” does not include—

(1) a criminal violation of the Uniform Code of Mili-

tary Justice (10 U. S. C. 801 et seq.);

(2) an offense against the laws of the District of Co-

lumbia; and

(3) an offense triable by an Indian tribal court or

Court of Indian Offenses.

The “does not include” language at the top of course refers

independently to crimes satisfying (1), crimes satisfying (2),

and crimes satisfying (3)—not to whatever crimes manage

to satisfy (1), (2), and (3) all at once. Or said otherwise, the

statute means exactly what it would mean if Congress had

stripped the phrase “does not include” from the prefatory

line and repeated it three times in the subsequent list. Con-

gress, we recognize, just opted to draft more concisely. And

so too it could have made that choice in drafting Paragraph

(f )(1)—with the “does not have” phrase referring to every

item that follows. No grammatical principle precludes that

understanding of what Congress wrote.

Pulsifer protests that using the word “or” (instead of

“and”) would have better conveyed the Government’s read-

ing, but that claim also fails. His basic objection (echoed in

the dissent, see post, at 16–17) is that Congress could have

12 PULSIFER v. UNITED STATES

Opinion of the Court

expressed its intent more clearly. “If the government is

right” about Paragraph (f )(1)’s meaning, Pulsifer asks,

“why didn’t Congress just use ‘or’?”; doing so would have

shown “unequivocally” that a defendant must meet all three

of the specified conditions. Reply Brief 16; Tr. of Oral Arg.

10. But to begin with, we do not demand (or in truth expect)

that Congress draft in the most translucent way possible.

We have “routinely construed statutes to have a particular

meaning even as we acknowledged that Congress could

have expressed itself more clearly.” Luna Torres v. Lynch,

578 U. S. 452, 472 (2016) (citing cases). And anyway, we

doubt that substituting “or” for “and” would have delivered

us from interpretive controversy. Instead, we would likely

have confronted the mirror image of the dispute before us.

The Government would have read the requirement that a

defendant “does not have A, B, or C” to mean that he “does

not have (A, B, or C).” So a defendant would get safety-

valve relief only if he doesn’t have any of the three listed

criminal-history features. But Pulsifer, we suspect, would

have read the same requirement to mean that a defendant

“does not have A, does not have B, or does not have C.” So

he would get safety-valve relief as long as he doesn’t have a

single one of the listed features. That reading too is possi-

ble when viewed only as a matter of abstract grammar, di-

vorced from any analysis of A, B, and C’s content. Even

with Pulsifer’s proposed redrafting, then, the grammatical

back-and-forth would continue.5

——————

5 That is not to say, of course, that any negative statement involving

the word “or” is realistically capable of two meanings; the point is only

that context may drive such a statement in either direction. Consider

two examples. First, suppose a restaurant chef decides to buy broccoli if

his supplier “does not have spinach, eggplant, or cauliflower.” That most

likely means the chef will buy broccoli only when the supplier is out of

all three other vegetables, not when he is out of just one. But second,

suppose the same chef typically places a food order if the restaurant

“does not have meat, produce, or bread.” That most likely means he’ll

place an order when the restaurant runs out of one of those foodstuffs,

Cite as: 601 U. S. ____ (2024) 13

Opinion of the Court

In fact, we can see why a Congress wishing to express the

Government’s view might have chosen to use “and.” Sup-

pose that before putting words to the page, Congress had

decided (as the Government says) to create an eligibility

checklist, requiring a defendant to meet three distinct con-

ditions before getting safety-valve relief. In the subsequent

drafting process, an “and” could well have seemed intuitive.

After all, on the Government’s “checklist” view, a defendant

must meet every one of three conditions—this one and this

one and this one. Or said more concretely, the defendant

must not have “more than 4 criminal history points” and

must not have a “3-point offense” and must not have a “2-

point violent offense.” So why not use an . . . “and”? It

serves to connect the three necessary conditions coming off

the (efficient) prefatory language. In other words, Congress

might have thought that use of the conjunctive word “and”

would reflect the needed conjunction of three requirements.

Consider, as a summary of all these points, Pulsifer’s own

main example, because it shows why Paragraph (f )(1)’s

grammatical structure cannot decide this case—and points

to the kind of analysis needed instead. Pulsifer offers a col-

lege policy, with an “and” connecting three provisions:

All student-athletes are eligible for an academic schol-

arship, provided that the student during the previous

semester did not—

(A) miss more than five classes;

(B) fail to submit a paper in the semesterly, campus-

wide writing competition; and

(C) earn less than a 3.0 GPA.

Brief for Pulsifer 19 (emphasis deleted). In Pulsifer’s view,

——————

not wait until it is lacking all three. The grammar in the two statements

is identical, but their most natural understanding is not. Here, content

drives meaning, so that in the one sentence, the absence of three items—

and in the other sentence, the absence of one item—triggers the relevant

purchase.

14 PULSIFER v. UNITED STATES

Opinion of the Court

the policy is clear: A student may retain his scholarship un-

less he flunks “all three” of the conditions. Ibid. So a stu-

dent, Pulsifer contends, is in the clear if he “submitted a

paper in the writing competition and earned a 3.4 GPA . . .

even though he missed seven classes.” Ibid. Which sounds

reasonable enough. But how about this one: A student who

misses only four classes, but fails to submit a competition

paper and “earns” a 1.0 GPA. Or similarly, a student who

submits a (terrible) paper, while missing all his classes and

obtaining the same “D” average. Is it now so clear that the

policy allows a student to flunk two of the conditions, rather

than requiring him to satisfy all three? Or is it, at the least,

uncertain? And even supposing not, consider a variation:

All student-athletes are eligible for an academic schol-

arship, provided that the student during the previous

semester did not—

(A) fail a course;

(B) commit plagiarism; and

(C) get arrested.

A student would need a lot of confidence to argue that he

remains scholarship-eligible when he (A) failed a course,

and (B) committed plagiarism, but (C) managed to evade

arrest. That reading—Pulsifer’s reading—is grammati-

cally possible. But so too is the opposite—that a student

must meet all three conditions. And when we think about

the content of the policy—what (A), (B), and (C) actually

say—against the backdrop of all we know (or perchance all

the college handbook tells us) about academic scholarships,

we cannot read the revised hypothetical in Pulsifer’s way.

The takeaway is this: Paragraph (f )(1) cannot be con-

strued in the abstract, as if all a reader has to go on is the

stripped-down phrase “the defendant does not have A, B,

and C.” That might require the defendant not to have (A,

B, and C)—i.e., the combination of the three. Or it might

require the defendant not to have A, and not to have B, and

Cite as: 601 U. S. ____ (2024) 15

Opinion of the Court

not to have C—i.e., each of the three. Really, it all depends.

(It is notable that even the dissent must in the end concede

the point, noting that whether a speaker “intend[s] for a lis-

tener to distribute words implicitly” depends on the context.

See post, at 15–16; supra, at 6, and n. 2). The way a reader

assigns meaning to the phrase is to look at the substance of

A, B, and C—the items on the list and the way they interact,

as against relevant background understandings. Recall a

couple of examples. See supra, at 9–11. We interpret the

injunction against drinking and driving in Pulsifer’s way—

“do not (A and B)”—because the two activities are usually

perilous only in combination. We interpret the injunction

against eating and drinking before surgery in the Govern-

ment’s way—“do not A and do not B”—because each activity

alone is likely to have adverse consequence. Similarly here,

the meaning of Paragraph (f )(1) may become clear if we ex-

amine the content of its three subparagraphs—what they

say and how they relate to each other—as well as how they

fit with other pertinent law. Or stated in the usual lan-

guage of statutory construction, the answer may lie in con-

sidering the paragraph’s text in its legal context.

III

A

And indeed, that inquiry into text and context makes Par-

agraph (f )(1)’s meaning clear. The paragraph creates an

eligibility checklist. It specifies three necessary conditions

for safety-valve relief—that the defendant not have more

than four criminal-history points, not have a prior three-

point offense, and not have a prior two-point violent offense.

Reading the paragraph instead to set out a single condi-

tion—that the defendant not have the combination of the

listed characteristics—would create two statutory difficul-

ties. First, Subparagraph A would become superfluous—

without any operative significance. That is because if a de-

fendant has a three-point offense under Subparagraph B

16 PULSIFER v. UNITED STATES

Opinion of the Court

and a two-point offense under Subparagraph C, he will al-

ways have more than four criminal-history points under

Subparagraph A. Second, defendants’ eligibility for relief

would not correspond to the seriousness of their criminal

records. Instead, a defendant with numerous violent three-

point offenses could get relief because he happens not to

have a two-point offense. The content of Subparagraphs A,

B, and C, especially as read against the Guidelines, thus

answers the statutory puzzle here—reducing two grammat-

ical possibilities to just one plausible construction.

Begin with superfluity. Or actually with its absence—

because there is none under the Government’s reading.

Each subparagraph does independent work, disqualifying

defendants from relief even when the others would not.

Subparagraph A disqualifies defendants who have more

than four criminal-history points (excluding those from a

one-point offense), even if they do not have a prior three-

point offense or a prior two-point violent offense. So, for

example, a defendant with three non-violent two-point of-

fenses will be barred. Subparagraph B, in turn, disqualifies

defendants who have any prior three-point offense, even if

they do not have a two-point violent offense or more than

four total points. And finally, Subparagraph C disqualifies

defendants who have a prior two-point violent offense, even

if they do not have a three-point offense or more than four

points. The paragraph thus excludes (A) various repeat of-

fenders, along with anyone having even a single conviction

that (B) resulted in a sufficiently long prison sentence or (C)

resulted in a shorter sentence but involved violence. Every

part of the paragraph has a function.

But that is not so under Pulsifer’s reading, as a bit of

arithmetic reveals. Pulsifer’s view, once again, is that Par-

agraph (f )(1) disqualifies only defendants with the combi-

nation of the characteristics in Subparagraphs A, B, and

C—so more than four criminal-history points, a prior three-

Cite as: 601 U. S. ____ (2024) 17

Opinion of the Court

point offense, and a prior two-point violent one. But be-

cause 3 + 2 = 5, and because 5 is more than 4, a defendant

with a three-point offense (Subparagraph B) and a two-

point violent offense (Subparagraph C) will necessarily

have more than four history points (Subparagraph A). So

Subparagraph A becomes meaningless: It does no inde-

pendent work. Remove it from the statute, and what is left

will make the exact same people eligible (and ineligible) for

relief.

And that kind of superfluity, in and of itself, refutes Pul-

sifer’s reading. The problem here is no odd word or stray

phrase, which might have escaped Congress’s notice. Pul-

sifer’s reading would negate one of three—indeed, the first

of three—provisions in the very paragraph he is trying to

interpret. When a statutory construction thus “render[s]

an entire subparagraph meaningless,” this Court has noted,

the canon against surplusage applies with special force.

National Assn. of Mfrs. v. Department of Defense, 583 U. S.

109, 128 (2018); see Chicago v. Fulton, 592 U. S. 154, 159

(2021). And still more when the subparagraph is so evi-

dently designed to serve a concrete function. In addressing

eligibility for sentencing relief, Congress specified three

particular features of a defendant’s criminal history—A, B,

and C. It would not have done so if A had no possible effect.

It would then have enacted: B and C. But while that is the

paragraph Pulsifer’s reading produces, it is not the para-

graph Congress wrote.

To escape that quandary, Pulsifer contends that under

the Guidelines a three-point offense and a two-point offense

do not always total five criminal-history points. (The dis-

sent reiterates Pulsifer’s assertion. See post, at 21–24.)

The argument begins with a point not in dispute: Some

prior convictions, as noted earlier, add zero points to a de-

fendant’s criminal-history score. See supra, at 3. That is

true if the conviction is quite old; if it was rendered in a

military, tribal or foreign court; or if it merged into another

18 PULSIFER v. UNITED STATES

Opinion of the Court

conviction because, for example, the two arose from “the

same charging instrument.” §4A1.2(a)(2); see §4A1.2(e),

(g)–(i). The key move in Pulsifer’s argument is the next one:

He claims that a prior offense adding zero points to a his-

tory score can still be a three-point or two-point offense un-

der Paragraph (f )(1). That happens, he says, when the sen-

tence given for the offense was long enough to otherwise add

those points—meaning, in the absence of the trait that re-

duced points to zero. See Brief for Pulsifer 36–41. Take an

example: A very old conviction contributes zero points to a

defendant’s history score, no matter how long the sentence.

Still, Pulsifer contends, it is a three-point offense when the

sentence given was sufficiently long (over 13 months) to add

three points in a case not very old. And once that proposi-

tion is accepted, Pulsifer says, superfluity disappears. Sup-

pose a defendant has, along with the old conviction just de-

scribed, a newer two-point violent offense. The old

conviction, Pulsifer maintains, is a three-point offense sat-

isfying Subparagraph B. And the new conviction satisfies

Subparagraph C. But the defendant has only two criminal-

history points—zero from the old offense and two from the

new—which is not enough to satisfy Subparagraph A. So

that subparagraph, Pulsifer concludes, has an effect: It

keeps such a defendant eligible for safety-valve relief.

But Pulsifer’s argument craters because its key move is

wrong: Contrary to his view, there is no such thing under

the Guidelines as a three-point or two-point offense adding

zero points. Under Subparagraphs B and C, the terms “3-

point offense” and “2-point violent offense” are “as deter-

mined under the sentencing guidelines.” §3553(f )(1)(B)–

(C). And the Guidelines assign points to an offense only in

the context, and for the purpose, of “[a]dd[ing]” them to a

defendant’s “criminal history” “total.” §4A1.1. So a convic-

tion becomes a three- or two-point offense only when—only

because—it adds three or two points to a total history score.

Or said the other way round, only the addition of three or

Cite as: 601 U. S. ____ (2024) 19

Opinion of the Court

two points to that score makes the offense a three- or two-

point offense. The corollary is that a conviction adding zero

points—because, say, it is very old—cannot be a three- or

two-point offense. It is (unsurprisingly) a zero-point of-

fense—whatever would be the case if the conviction were

newer. For that reason, such a conviction cannot aid Pul-

sifer’s effort to find a function for Subparagraph A. Because

only the addition of three or two points can make an offense

a three- or two-point offense, a defendant who has a prior

three-point offense and a prior two-point violent offense will

always have (arithmetic again) more than four points total.

The Guidelines’ mechanics thus foreclose Pulsifer’s effort to

erase the superfluity his reading creates.6

Yet more, Pulsifer’s effort founders on the Guidelines’

judgments, reflected in Paragraph (f )(1), about which prior

offenses warrant enhanced punishment. Consider what

Pulsifer’s zero-to-three claim entails. Because an offense

adding zero points can on his account satisfy Subparagraph

——————

6 The dissent tries to save Pulsifer’s effort by offering an account of the

Guidelines’ mechanics different from that given in the Guidelines them-

selves. According to the dissent, the Guidelines “set forth a two-step pro-

cess” in which a judge first “assigns points to the defendant’s prior of-

fenses” under §4A1.1 and only then “computes the defendant’s criminal

history” score under §4A1.2. Post, at 22. So, the dissent claims, a court

may first count two or three points for an old conviction (under §4A1.1)

and then exclude those points from the computation of a history score

(under §4A1.2). See ibid. But in fact there are no “two steps” under the

Guidelines. As even the dissent concedes in one self-contradictory mo-

ment, see ibid., there is only a single calculation, with §4A1.2 providing

the “[d]efinitions and [i]nstructions” for §4A1.1’s “add[ing]” and “to-

tal[ing].” (Given that relationship, the commentary explains, the two

provisions “must be read together.” USSG ch. 4, pt. A, intro.). And

among §4A1.2’s “[i]nstructions” is that old convictions simply “not [be]

counted”—rather than, as the dissent would have it, that they be first

counted and then uncounted. In other words, as §4A1.2’s commentary

states, an old conviction should “receive[ ] no criminal history points” in

the §4A1.1 calculation. USSG §4A1.2 comment., n. 3. So again: Neither

Pulsifer nor the dissent can transform an old conviction into a two- or

three-point offense.

20 PULSIFER v. UNITED STATES

Opinion of the Court

B or C, it can help prevent a defendant from gaining safety-

valve relief. But that result ill comports with the Guide-

lines. There are, after all, reasons why the Guidelines de-

cline to assign points to certain offenses. The specifics vary,

but each embodies a judgment that some types of prior con-

victions should not have the usual weight in determining a

current sentence. Maybe the prior conviction is not as reli-

able as most. Or maybe it is not so good a measure of the

defendant’s future dangerousness. Whatever the precise

explanation, the Guidelines give zero points to an offense in

order to ensure that it not increase a later punishment. Ex-

cept that under Pulsifer’s view it could do just that: Of-

fenses that the Guidelines deem irrelevant to future sen-

tencing might end up triggering a mandatory minimum.

And likewise, Pulsifer’s view conflicts with a discrete fea-

ture of Paragraph (f )(1). Recall that under that paragraph,

an offense earning one point cannot affect eligibility for re-

lief, either alone or in combination with any other offense—

presumably because a one-point offense is just too minor.

See §3553(f )(1); supra, at 4. Yet Pulsifer’s theory would al-

low an offense adding zero points to contribute to a finding

that relief is barred. That claim is, again, too out-of-sync

with the statutory framework to offer an escape from his “3

+ 2 = 5” superfluity problem.

And beyond that problem lies a second, this one relating

to the way Paragraph (f )(1) precludes safety-valve relief for

defendants with serious criminal histories. The paragraph

operates as a gatekeeper: It helps get some defendants into,

and keeps other defendants out of, a world free of manda-

tory minimums. And the criteria for selection, evident on

the paragraph’s face, relate to just how bad a defendant’s

criminal record is. Pulsifer himself recognizes that fact: In

describing Paragraph (f )(1), he notes that “subparagraph

(A) targets recidivism”; that “subparagraph (B) targets se-

rious offenses” leading to lengthy prison terms; and that

Cite as: 601 U. S. ____ (2024) 21

Opinion of the Court

“subparagraph (C) targets violent offenses” even though re-

sulting in lesser sentences. Brief for Pulsifer 25; see id., at

44 (noting that each subparagraph addresses a “type[ ] of

behavior suggestive of future dangerousness”). The para-

graph thus focuses on the kinds of past criminal behavior

that under the Guidelines trigger enhanced penalties. Over

and over, the Guidelines presume that defendants with

worse criminal records—exhibiting recidivism, lengthy sen-

tences, and violence—are “deserving of greater punish-

ment.” USSG ch. 4, pt. A, intro. comment.; see §4A1.1;

USSG ch. 5, pt. A. Paragraph (f )(1), in line with its re-

peated invocation of the Guidelines, expresses the same un-

derstanding. Put simply, the paragraph sorts defendants

for relief (or not) based on the seriousness of their criminal

history.

Under the Government’s reading, Paragraph (f )(1) per-

forms that function without a hitch. When the defendant

has committed multiple non-minor offenses, he cannot get

relief (Subparagraph A). And so too when he has committed

even a single offense punished with a lengthy prison sen-

tence (Subparagraph B) or involving violence (Subpara-

graph C). Only a defendant with none of those markers—a

defendant who can check off every one of the three “does not

have” requirements—is eligible for relief. So the paragraph

unerringly separates more serious prior offenders from less

serious ones, allowing only the latter through the gate.

That does not happen under Pulsifer’s construction. To

the contrary, his reading would allow relief to defendants

with more serious records while barring relief to defendants

with less serious ones. Or said otherwise, the sorting ac-

complished by Pulsifer’s reading does not match what Par-

agraph (f )(1) and the Guidelines call for. Consider two hy-

pothetical defendants. One has five criminal-history points

from a prior three-point offense and a prior two-point vio-

lent offense. The other has 15 criminal-history points from

five prior three-point offenses, every last one of a violent

22 PULSIFER v. UNITED STATES

Opinion of the Court

nature, but . . . has no two-point violent offense. (All his

crimes were too serious to wind up in the two-point cate-

gory.) Which of the two defendants is the more serious prior

offender? The latter of course: His record exhibits greater

recidivism, lengthier sentences, and more violence. But un-

der Pulsifer’s view of Paragraph (f )(1), which of the two de-

fendants is excluded from relief? The former alone. For

want of a two-point offense, the latter remains eligible to

avoid a mandatory minimum. The paragraph thus fails to

divide, at the gate for safety-valve relief, more from less se-

rious prior offenders.7

And contrary to Pulsifer’s view, that problem cannot be

solved by resort to a sentencing judge’s discretion. Notably,

Pulsifer does not argue that there is any rhyme or reason

to making our serial three-point violent offender eligible for

safety-valve relief. He says only that Congress “had no rea-

son to be concerned” about that outcome because it knew

“that a sentencing court would still have discretion to im-

pose a proportionate sentence.” Brief for Pulsifer 25; see

id., at 45; see also post, at 28–29 (GORSUCH, J., dissenting)

(similarly relying on judges’ ability, even without manda-

tory minimums, to impose lengthy sentences). But that

“trust in discretion” claim cannot here work. If Congress

thought it could always rely on sentencing discretion, it

——————

7 The dissent labors unsuccessfully to find an explanation for this state

of affairs. Here is what it comes up with: Sometimes Congress opts for

“standardized formulas” or bright-line tests even though their “over- and

under-inclusi[on]” will produce statutory “anomalies.” Post, at 27–28

(citing Ransom v. FIA Card Services, N. A., 562 U. S. 61, 78 (2011)); see

post, at 29. That is true enough, but has no application here. Pulsifer’s

view of the statute is no more “standardized” than the Government’s—

and so no more predictable or administrable. The dissent thus remains

without a plausible, or even cogent, explanation for the failure of its in-

terpretation (and its interpretation alone) to perform the statute’s gate-

keeping role—in Pulsifer’s own words, to separate defendants whose

criminal history is more “suggestive of future dangerousness” from de-

fendants whose criminal history is less so. Brief for Pulsifer 44.

Cite as: 601 U. S. ____ (2024) 23

Opinion of the Court

would not have created a criminal-history requirement in

the first instance. That requirement, by its terms, confines

such discretion. More specifically, it allows discretion to op-

erate only when a defendant’s record does not reach a cer-

tain level of seriousness. On the Government’s reading, the

paragraph well performs that gatekeeping function, sepa-

rating more serious from less serious criminal histories. On

Pulsifer’s reading, the paragraph does not: As just shown,

it allows and denies relief in ways that do not correspond to

the gravity of what a defendant has previously done. The

need for a judge to correct those results—which Pulsifer ad-

mits—shows that his reading is wrong. Once again, his con-

struction of Paragraph (f )(1)—however grammatical—

makes a hash of the scheme Congress devised.

B

Pulsifer tries to tell a competing story (which the dissent

mostly adopts, see post, at 8–9, 18–19). Even supposing the

grammar of Paragraph (f )(1) is a wash, Pulsifer contends

that statutory context supports his view of what that provi-

sion means by “and.” His argument invokes the “presump-

tion of consistent usage and the meaningful-variation

canon.” Brief for Pulsifer 22. Those are the terms often

given to a generally useful—but still “defeasible”—interpre-

tive principle: In a given statute, the same term usually has

the same meaning and different terms usually have differ-

ent meanings. A. Scalia & B. Garner, Reading Law 170–

171 (2012). The principle is mostly applied to terms with

some heft and distinctiveness, whose use drafters are likely

to keep track of and standardize. See, e.g., IBP, Inc. v. Al-

varez, 546 U. S. 21, 33–34 (2005) (construing the term

“principal activity” in the same way when used in neighbor-

ing provisions); Wisconsin Central Ltd. v. United States,

585 U. S. 274, 279 (2018) (holding that “money remunera-

tion” must mean something different from “all remunera-

24 PULSIFER v. UNITED STATES

Opinion of the Court

tion” when used in “companion” statutes (emphasis de-

leted)). Pulsifer breaks new ground in applying the princi-

ple to words as ubiquitous and (as shown above) sometimes

context-dependent as “and” and “or.” See supra, at 6–23.

He argues, more specifically, that another “and” plus an

“or” in Section 3553(f ) show that the “and” in Paragraph

(f )(1) must be read his way. But even accepting that a court

can sometimes demand harmonization of “and”s and “or”s,

Pulsifer’s argument fails.

Take the other “and” first. As noted earlier, the criminal-

history requirement is only one of five conditions for safety-

valve relief set out in Section 3553(f ). See supra, at 2–3.

Those conditions appear in a list—Paragraphs (f )(1)

through (f )(5)—with an “and” linking them, just as an “and”

links Paragraph (f )(1)’s three subparagraphs. A look at the

appendix may be helpful here. See infra, at 29. The styl-

ized version of the list in Section 3553(f ) (with content re-

moved) goes as follows: The safety valve operates “if the

court finds” 1, 2, 3, 4, “and” 5.

The problem for Pulsifer is that the meaning of the “and”

in Section 3553(f ) does not advance his reading of Para-

graph (f )(1). Everyone, including Pulsifer, agrees that the

“and” in Section 3553(f ) connects five requirements for

safety-valve relief, all of which a defendant must meet. In

Pulsifer’s view, the Government has to read Paragraph

(f )(1)’s “and” differently to make each one of its subpara-

graphs disqualifying. See Brief for Pulsifer 21; Reply Brief

14–15. But that is just wrong. The “and” in Section 3553(f )

works identically to the “and” in the Government’s reading

of Paragraph (f )(1). Section 3553(f )’s “and” creates an eli-

gibility checklist. A defendant fulfills that provision’s re-

quirements if the court finds 1, finds 2, finds 3, finds 4, and

(finally) finds 5. So the “and” joins five individually neces-

sary conditions for relief. Likewise, the “and” in the Gov-

ernment’s construction of Paragraph (f )(1) creates an eligi-

bility checklist. A defendant satisfies that paragraph’s

Cite as: 601 U. S. ____ (2024) 25

Opinion of the Court

requirements if he does not have A, does not have B, and

(finally) does not have C. So again, the “and” joins several

individually necessary conditions for safety-valve relief.

Everything is consistent, in meaning and operation alike.

It is actually Pulsifer who introduces dissonance into the

provision. As to the larger list, he acknowledges that a de-

fendant cannot get relief without checking off 1, 2, 3, 4, and

5 individually. But as to the smaller list, Pulsifer changes

the rule. Now a defendant need not satisfy A, B, and C in-

dividually. Instead, he can get relief so long as he does not

have A, B, and C combined. In other words, in Pulsifer’s

world, Section 3553(f ) is an eligibility checklist, but Para-

graph (f )(1) is not.

Pulsifer’s deployment of another paragraph’s “or” fares

no better. Section 3553(f )(4) conditions safety-valve relief

on a finding that the “defendant was not an organizer,

leader, manager, or supervisor of others in the offense.” See

supra, at 2. Congress thus used an “or” to signify that be-

ing any one of those things is disqualifying. Invoking the

meaningful-variation canon, Pulsifer argues that the differ-

ent term “and” in Paragraph (f )(1) must mean the opposite:

that only the combination of the listed things disqualifies a

defendant. See Brief for Pulsifer 21–22. Recall that we

have already rejected Pulsifer’s unadorned view that the

word “or” is needed to convey the Government’s reading of

Paragraph (f )(1). See supra, at 11–13. Pulsifer’s additional

reference to Paragraph (f )(4)’s “or” does not strengthen his

case. As we have shown throughout this opinion, conjunc-

tions are versatile words, which can work differently de-

pending on context. Here is yet another example. As an-

other glance at the appendix will confirm, the relevant

clause in Paragraph (f )(4) is markedly different in length

and formatting from the material in Paragraph (f )(1), nat-

urally leading to different choices respecting the use of con-

junctions. And anyway, Congress drafted the current ver-

sions of the paragraphs at different times—Paragraph

26 PULSIFER v. UNITED STATES

Opinion of the Court

(f )(4) in 1994, Paragraph (f )(1) in 2018. See Violent Crime

Control and Law Enforcement Act of 1994, 108 Stat. 1985;

First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5221. It

would hardly be surprising if 24 years later, Paragraph

(f )(1)’s drafters did not perfectly harmonize their conjunc-

tion usage with a dissimilar-looking nearby paragraph.

There can be few better illustrations of the “defeasib[ility]”

of the meaningful-variation canon. Scalia, Reading Law, at

171.

Finally, Pulsifer and the dissent make a misguided argu-

ment about legislative purpose. As noted earlier, Congress

enacted the revised version of Paragraph (f )(1) as part of

the First Step Act, a significant sentencing reform law. See

supra, at 2–3. Pulsifer explains that the new provision was

meant “to make safety-valve relief more widely available.”

Brief for Pulsifer 22. And the dissent highlights how many

more defendants would get safety-valve relief under Pul-

sifer’s reading than under the Government’s. See post, at

7; see also post, at 1–7, 19. We do not doubt the points. But

they do not assist in interpreting the statutory text before

us. Both views of the paragraph—Pulsifer’s and the Gov-

ernment’s—significantly widen the opportunity for safety-

valve relief; recall that under the prior provision, anything

more than a single criminal-history point precluded devia-

tion from a mandatory minimum. See supra, at 2–3. And

Pulsifer’s interpretation is not better just because it would

go further than the Government’s. “[N]o law pursues its . . .

purpose[s] at all costs.” Luna Perez v. Sturgis Public

Schools, 598 U. S. 142, 150 (2023). So here, Congress did

not eliminate but only curtailed mandatory minimums—

did not extend safety-valve relief to all defendants, but only

to some. And to determine the exact contours of that class,

we can do no better than examine Paragraph (f )(1)’s text in

context. For all the reasons given, that scrutiny reveals

that Pulsifer’s view goes too far.

Cite as: 601 U. S. ____ (2024) 27

Opinion of the Court

IV

Yet Pulsifer (joined again by the dissent, see post, at 31–

32) asserts we are not done. At the least, he claims, the

meaning of the criminal-history requirement is uncertain.

And because it is uncertain, he must win. The rule of lenity,

he says, requires courts to read “ambiguous criminal stat-

utes in favor of liberty.” Brief for Pulsifer 47.

The problem is that we do not view Paragraph (f )(1) as gen-

uinely ambiguous.8 There are, to be sure, two grammatically

permissible readings of the statute when viewed in the ab-

stract. It may be read Pulsifer’s way—as stating that a de-

fendant can get safety-valve relief so long as he does not have

the combination (A, B, and C). Or it may be read the Govern-

ment’s way—as stating that a defendant can get safety-valve

relief only if he does not have A, does not have B, and does not

have C. But the difficulty in choosing between those two con-

structions falls away once we consider the content of Subpar-

agraphs A, B, and C: more than four criminal-history points

(excluding points from a one-point offense), a prior three-point

offense, and a prior two-point violent offense, all as deter-

mined under the Sentencing Guidelines. Then we discover

that Pulsifer’s view creates glaring superfluity, whereas the

Government’s view does not. And we discover that only the

Government’s view renders the provision capable of sorting

more serious from less serious criminal records, consistent

with both the statute’s and the Guidelines’ designs. The two

possible readings thus reduce to one—leaving no role for len-

ity to play.

In sum, Paragraph (f )(1)’s criminal-history requirement

sets out an eligibility checklist. A defendant is eligible for

safety-valve relief only if he satisfies each of the paragraph’s

three conditions. He cannot have more than four criminal-

——————

8 For that reason, we have no need to address the Government’s argu-

ment that the rule of lenity does not apply to Paragraph (f )(1) because it

is not properly considered a “penal law.” Brief for United States 46–47.

28 PULSIFER v. UNITED STATES

Opinion of the Court

history points. He cannot have a prior three-point offense.

And he cannot have a prior two-point violent offense. Because

Pulsifer has two prior three-point offenses totaling six points,

he is not eligible. It makes no difference that he does not also

have a prior two-point violent offense. Accordingly, we affirm

the judgment of the Court of Appeals for the Eighth Circuit.

It is so ordered.

Cite as: 601 U. S. ____ (2024) 29

Appendix to opinion of the Court

APPENDIX

§3553. Imposition of a sentence

. . . . .

(f ) LIMITATION ON APPLICABILITY OF STATUTORY

MINIMUMS IN CERTAIN CASES.—Notwithstanding any other

provision of law, in the case of an offense under section 401,

404, or 406 of the Controlled Substances Act (21 U. S. C.

841, 844, 846), section 1010 or 1013 of the Controlled Sub-

stances Import and Export Act (21 U. S. C. 960, 963), or sec-

tion 70503 or 70506 of title 46, the court shall impose a sen-

tence pursuant to guidelines promulgated by the United

States Sentencing Commission under section 994 of title 28

without regard to any 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 sen-

tencing 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 contin-

uing criminal enterprise, as defined in section 408 of the

Controlled Substances Act; and

30 PULSIFER v. UNITED STATES

Appendix to opinion of the Court

(5) not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all in-

formation and evidence the defendant has concerning the

offense or offenses that were part of the same course of con-

duct 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 in-

formation shall not preclude a determination by the court

that the defendant has complied with this requirement.

Information disclosed by a defendant under this subsec-

tion may not be used to enhance the sentence of the defend-

ant unless the information relates to a violent offense.

Cite as: 601 U. S. ____ (2024) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 22–340

_________________

MARK E. PULSIFER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[March 15, 2024]

JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and

JUSTICE JACKSON join, dissenting.

The First Step Act of 2018 may be “ ‘the most significant

criminal justice reform bill in a generation.’ ” Brief for Sen.

Richard J. Durbin et al. as Amici Curiae in Terry v. United

States, O. T. 2020, No. 20–5904, p. 9. Through the 1980s

and 1990s, Congress adopted an ever-increasing number of

ever-longer mandatory minimum prison sentences. In part

due to these policies, the federal prison population grew by

more than 100% in less than a decade. In the First Step

Act, Congress sought to recalibrate its approach. It did so

by promising more individuals the chance to avoid one-size-

fits-all mandatory minimums and receive instead sentences

that account for their particular circumstances and crimes.

This dispute concerns who is eligible for individualized

sentencing and who remains subject to mandatory mini-

mums after the First Step Act. Before the Act, a defendant

seeking to avoid a mandatory minimum had to satisfy five

stringent statutory tests. After the Act, all those tests re-

main, only the first is now less demanding. As revised, it

provides that a defendant may be eligible for individualized

sentencing if he “does not have” three traits: (A) more than

4 criminal history points, (B) a 3-point offense, and (C) a 2-

point violent offense. In lower court proceedings, the gov-

ernment admitted that this new test is “most natural[ly]”

read to mean what it says: A defendant may be eligible for

2 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

individualized sentencing unless he possesses all three

listed traits—A, B, and C. Brief for United States in

No. 19–50305 (CA9), p. 7 (Government CA9 Brief ); id., at

10–11; accord, Brief for United States in No. 21–1609

(CA8), p. 11 (Government CA8 Brief ). Despite its admis-

sion, however, the government urges us to adopt a different

construction. It asks us to read the First Step Act as prom-

ising a defendant a chance at individualized sentencing

only when he does not have any of the three listed traits—

A, B, or C.

If this difference seems a small one, it is anything but.

Adopting the government’s preferred interpretation guar-

antees that thousands more people in the federal criminal

justice system will be denied a chance—just a chance—at

an individualized sentence. For them, the First Step Act

offers no hope. Nor, it seems, is there any rule of statutory

interpretation the government won’t set aside to reach that

result. Ordinary meaning is its first victim. Contextual

clues follow. Our traditional practice of construing penal

laws strictly falls by the wayside too. Replacing all that are

policy concerns we have no business considering. Respect-

fully, I would not indulge any of these moves.

I

A

In approaching the dispute before us, some background

helps. Before the 1980s, federal judges generally enjoyed

broad discretion at sentencing. Often, they could impose

punishments ranging from probation up to statutorily spec-

ified maximum prison terms. Mistretta v. United States,

488 U. S. 361, 363 (1989). In exercising that discretion,

judges had to “consider every convicted person as an indi-

vidual” and pick punishments that “fit the offender and not

merely the crime.” Pepper v. United States, 562 U. S. 476,

487–488 (2011).

Cite as: 601 U. S. ____ (2024) 3

GORSUCH, J., dissenting

Today, many defendants still receive individualized sen-

tences. In the mine run of federal cases, a court will start

with sentencing guidelines the United States Sentencing

Commission has prepared at Congress’s direction. The

guidelines help a court identify a range of presumptively

reasonable sentences tailored to the defendant and his

crime. See Rita v. United States, 551 U. S. 338, 347 (2007).

That range depends on an “offense level,” a figure that

takes into account the seriousness of the defendant’s crime

and his role in it, as well as the defendant’s “criminal his-

tory” score, a tallying that accounts for his past misconduct.

United States Sentencing Commission, Guidelines Manual

§§1B1.1, 4A1.1–4A1.2, ch. 5, pt. A (Nov. 2023) (USSG); see

Rosales-Mireles v. United States, 585 U. S. 129, 133–134

(2018). The guidelines, however, are just that. A sentenc-

ing judge may sometimes depart or vary from the guide-

lines’ recommended range, picking a lower or higher sen-

tence if it best fits the defendant and broader penological

goals Congress has instructed courts to consider. See Gall

v. United States, 552 U. S. 38, 46, 49–50 (2007); 18 U. S. C.

§3553(a).

In the 1980s and 1990s, Congress pursued a different ap-

proach for certain drug offenses. See Anti-Drug Abuse Act

of 1986, 100 Stat. 3207–2 to 3207–4; Anti-Drug Abuse Act

of 1988, 102 Stat. 4370, 4377–4378. It required courts to

impose mandatory minimum prison terms based only on

the kind and quantity of the drugs involved in the defend-

ant’s crime. A court “was required to send the offender to

prison” for a set period of years “no matter how minor the

offender’s participation in the offense may have been, and

no matter what mitigating circumstances might have been

present.” J. Rakoff, Why the Innocent Plead Guilty and the

Guilty Go Free 13 (2021). Under this regime, for example,

a defendant distributing 5 grams of crack cocaine faced a 5-

year mandatory prison term, and one with 50 grams faced

a 10-year term. 100 Stat. 3207–2 to 3207–3. Meanwhile, a

4 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

defendant found with powder cocaine confronted those

same prison terms only if he distributed 100 times those

amounts. Ibid.

In short order, the federal prison population exploded. In

1986, federal prisoners numbered 30,104, approximately

37.7% of whom were serving time for drug offenses. Dept.

of Justice, Sourcebook of Criminal Justice Statistics 519

(31st ed. 2003). By 1994, the federal prison population

reached almost 74,000, with approximately 61.3% of in-

mates serving time for a drug offense. Ibid.

Calls for reform came quickly and grew with time. See,

e.g., U. S. Sentencing Commission, Special Report to the

Congress: Mandatory Minimum Penalties in the Federal

Criminal Justice System iii (1991); id., App. G (collecting

statements from the Judicial Conference and 12 circuits).

Eventually, Congress responded to these calls in various

ways. In one reform, for example, it prospectively reduced

the crack-cocaine disparity from 100:1 to 18:1. See Fair

Sentencing Act of 2010, 124 Stat. 2372. In another, it

adopted §3553(f ), a provision that came to be called the

“safety valve” and that lies at the heart of today’s case. See

Violent Crime Control and Law Enforcement Act of 1994,

108 Stat. 1985–1986.

As originally enacted in 1994, the safety valve provided

modest relief. It exempted defendants who could meet five

statutory criteria from otherwise-applicable mandatory

minimums, directing instead that they should receive indi-

vidualized sentences. Ibid. (codified as amended at 18

U. S. C. §3553(f )). But the first of the safety valve’s five

criteria, codified in paragraph (f )(1), was especially de-

manding. It precluded relief for any individual with “more

than 1 criminal history point”—meaning that a defendant

could find himself ineligible for individualized sentencing if

his background included even a single 60-day prison term

or two prior offenses involving no prison term at all. 108

Stat. 1985; see §3553(f )(1) (1994 ed.); USSG §§4A1.1(b)–(c),

Cite as: 601 U. S. ____ (2024) 5

GORSUCH, J., dissenting

4A1.2 (Nov. 1994).

B

In the First Step Act of 2018, Congress adopted an array

of further reforms. Pub. L. 115–391, 132 Stat. 5194. Passed

with overwhelming majorities in both chambers of Con-

gress and with presidential support, the Act reduced the

length of some mandatory minimums by 25 percent. See

§401, id., at 5220–5221. It narrowed the circumstances un-

der which a court could “stack” certain mandatory mini-

mums on top of one another. See §403(a), id., at 5221–5222;

U. S. Sentencing Commission, The First Step Act of 2018:

One Year of Implementation 5 (2020). And it made Con-

gress’s earlier amendment to the crack-cocaine disparity

retroactive, allowing individuals sentenced before that

amendment’s adoption a chance at resentencing. See §404,

132 Stat. 5222.

The First Step Act also revised the safety valve’s first pro-

vision. Where paragraph (f )(1) once barred a defendant

with even a single criminal history point from receiving an

individualized sentence, Congress now chose a different

course. As amended, the full safety valve today instructs a

court to afford an individualized sentence “if [it] 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 of-

fense, 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 un-

der the sentencing guidelines;

“(2) the defendant did not use violence or credible

threats of violence or possess a firearm or other dan-

gerous weapon (or induce another participant to do so)

in connection with the offense;

6 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

“(3) the offense did not result in death or serious bod-

ily injury to any person;

“(4) the defendant was not an organizer, leader, man-

ager, or supervisor of others in the offense, as deter-

mined under the sentencing guidelines and was not en-

gaged in a continuing criminal enterprise, as defined in

. . . the Controlled Substances Act; and

“(5) not later than the time of the sentencing hearing,

the defendant has truthfully provided to the Govern-

ment all information and evidence the defendant has

concerning the offense or offenses that were part of the

same . . . common scheme or plan . . . .” 18 U. S. C.

§3553(f ).

C

The question we face concerns how the amended safety

valve works. Everyone agrees that a defendant must still

clear five daunting statutory hurdles. But the parties dis-

agree what the first entails after the First Step Act. Ob-

serving that the word “and” connects each of the subpara-

graphs (f )(1)(A), (B), and (C), Mark Pulsifer argues that the

safety valve’s first provision now operates to render ineligi-

ble one kind of defendant—a defendant who bears all three

enumerated traits, A, B, and C. Because he does not have

all three, Mr. Pulsifer submits, he is eligible for safety-valve

relief as long as he can satisfy the law’s four remaining pro-

visions. Meanwhile, on the government’s telling, para-

graph (f )(1) renders three kinds of defendants ineligible for

relief—any defendant who has trait A, B, or C. And because

Mr. Pulsifer has at least one of those traits, the rest of the

safety valve is irrelevant; paragraph (f )(1) alone renders

him ineligible for relief.

Disputes about the amended safety valve’s operation

have simmered for years in the lower courts and yielded

Cite as: 601 U. S. ____ (2024) 7

GORSUCH, J., dissenting

conflicting results.1 At least one thing, though, is clear:

The dispute before us matters profoundly. According to a

Sentencing Commission analysis based on 2021 data, about

33% of drug offenders were eligible for safety-valve relief

under the law’s old terms. See 88 Fed. Reg. 7186 (2023).

Under Mr. Pulsifer’s understanding of the First Step Act,

about 66% would become eligible for individualized sen-

tencing. See ibid. By contrast, under the government’s

reading of the Act, that number would shrink to around

44%. See ibid. Our decision today thus promises to affect

the lives and liberty of thousands of individuals.

II

Unless some feature of the law suggests that one or an-

other of its terms bears a specialized meaning, our duty is

to interpret Congress’s work as an ordinary reader would.

See Niz-Chavez v. Garland, 593 U. S. 155, 163 (2021). At

the heart of today’s dispute lies no specialized term but per-

haps the most ordinary of words: Everything turns on what

work the word “and” performs in paragraph (f )(1), where a

sentencing court is tasked with determining whether “the

defendant does not have” three traits—A, B, “and” C.

A

In taking up the parties’ dispute, start with a few simple

and uncontested observations. First, as the Court agrees,

“and” is “a conjunction—a word whose function is to connect

specified items.” Ante, at 7; see J. Opdycke, Harper’s Eng-

lish Grammar 200 (rev. ed. 1966).

——————

1 The Fourth, Ninth, and Eleventh Circuits have taken Mr. Pulsifer’s

approach. See United States v. Jones, 60 F. 4th 230 (CA4 2023); United

States v. Lopez, 998 F. 3d 431 (CA9 2021); United States v. Garcon, 54 F.

4th 1274 (CA11 2022) (en banc). The Fifth, Sixth, Seventh, and Eighth

Circuits have taken the government’s view. See United States v. Palo-

mares, 52 F. 4th 640 (CA5 2022); United States v. Haynes, 55 F. 4th 1075

(CA6 2022); United States v. Pace, 48 F. 4th 741 (CA7 2022); 39 F. 4th

1018 (CA8 2022) (case below).

8 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

Second, and more specifically, “and” is an “additive” con-

junction, one often indicating that the words it connects

should be added together. Id., at 200; The Chicago Manual

of Style §5.183, p. 191 (15th ed. 2003). As the Court ex-

plains, when “and” performs that role, it means “[t]ogether

with,” “along with,” “in addition to,” or “as well as.” Amer-

ican Heritage Dictionary 66 (5th ed. 2018); see ante, at 7.

Third, in paragraph (f )(1) “and” connects a list in a nega-

tive conditional statement (“if . . . the defendant does not

have”). Negative conditional “if . . . not” statements often

function like the word “unless.” See R. Huddleston & G.

Pullum, The Cambridge Grammar of the English Language

§14.3, p. 755 (2002). Consider the mother who tells her

child, “If you do not have any homework left, you can go

play with your friends.” The child would understand that

he could play with his friends unless he had homework left

to do.

Now apply those observations to paragraph (f )(1). Given

the meaning of “and,” an ordinary reader would naturally

understand that a defendant is eligible for individualized

sentencing if he “does not have” trait A, trait B, together

with trait C. Add to the mix what we know about the inter-

changeability of “if . . . not” and “unless”: A defendant may

receive guidelines sentencing unless he has trait A, trait B,

together with trait C. Put the points together, and the stat-

ute indicates that a court may issue an individualized sen-

tence unless the defendant has all three traits listed in

§3553(f )(1), just as Mr. Pulsifer contends.

B

What the language of paragraph (f )(1) suggests, sur-

rounding context confirms. When Congress uses different

terms in a statute, we normally presume it does so to convey

different meanings. Southwest Airlines Co. v. Saxon, 596

U. S. 450, 457–458 (2022). We sometimes call this pre-

sumption the “meaningful-variation canon.” Id., at 457.

Cite as: 601 U. S. ____ (2024) 9

GORSUCH, J., dissenting

Here, we see just such a meaningful variation. When Con-

gress sought a single word to indicate that one trait among

many is sufficient to disqualify an individual from safety-

valve relief, it chose an obvious solution: not the conjunc-

tive “and,” but the disjunctive “or.”

In fact, Congress used “or” this way no fewer than three

times. Paragraph (f )(2) specifies that, for a defendant to be

eligible for individualized sentencing, a court must find that

“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.” (Emphases added.) Paragraph (f )(3) premises el-

igibility on a finding that a defendant’s “offense did not re-

sult in death or serious bodily injury to any person.” (Em-

phasis added.) And paragraph (f )(4) provides that

eligibility for relief turns on whether the defendant “was

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

in the offense.” (Emphasis added.)

The fact that Congress repeatedly used “or” when it

wanted relief to turn on a single trait among many suggests

that the “and” in paragraph (f )(1) performs different work.

Even the government once acknowledged as much, conced-

ing below that the “and” in paragraph (f )(1) is “most natu-

ral[ly]” read as requiring a sentencing court to find that a

defendant possesses all three listed traits before holding

him ineligible for relief. Government CA9 Brief 7; id., at

10–11; accord, e.g., Government CA8 Brief 11. Nor is the

government alone in this unsurprising understanding: A

study involving ordinary Americans found that the largest

share of participants understood a sentence tracking para-

graph (f )(1)’s structure to trigger ineligibility only if all

three conditions are satisfied. See Brief for Thomas R. Lee

et al. as Amici Curiae 15, 18.

10 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

III

A

The government disputes none of this evidence about the

law’s ordinary meaning. Instead, it begins with a theory.

Maybe, the government says, there is another “permissible”

way to read paragraph (f )(1). Ante, at 7; Brief for United

States 18, 37. Maybe Congress implicitly wanted a reader

to “distribut[e]” the “verb phrase” “does not have” among

each subparagraph. Ante, at 8–9 (internal quotation marks

omitted); Brief for United States 14–18. Maybe, then, we

should effectively read the statute to work this way, with

deleted words stricken and new ones added in bold:

(1) the defendant does not have —

(A) does not have more than 1 criminal history

point . . . ;

(B) does not have a prior 3-point offense . . . ; and

(C) does not have a prior 2-point violent offense.

Yes, the government’s implicit distribution theory requires

a reader to delete words before the em dash. Yes, it requires

a reader to reinsert them in three different places where

they do not appear. But maybe, the government suggests,

Congress implicitly intended for a reader to do all that.

Even though what it wrote is susceptible to a far more nat-

ural construction requiring none of these gymnastics.

That is not how statutory interpretation usually works.

Statutes aren’t games or puzzles but “instruments of a prac-

tical nature, founded on the common business of human

life, . . . and fitted for common understandings.” 1 J. Story,

Commentaries on the Constitution of the United States

§451, p. 437 (1833). For that reason, we usually presume

that Congress “employed words in their natural sense, and

. . . intended what [it] said.” Gibbons v. Ogden, 9 Wheat. 1,

188 (1824). And once we have identified the most natural

sense of the law’s terms, as we have here, our interpretive

task is usually at an end. See, e.g., Barnhart v. Sigmon

Cite as: 601 U. S. ____ (2024) 11

GORSUCH, J., dissenting

Coal Co., 534 U. S. 438, 461–462 (2002).

The government’s implicit distribution theory is so far

from the most natural reading of the law that its many and

able lawyers didn’t even stumble on it until late in the

game. In litigation below, the government started by argu-

ing primarily that paragraph (f )(1) “must be read in the dis-

junctive”—a fancy way of saying that “and” means “or.”

Government CA8 Brief 4; see United States v. Garcon, 54 F.

4th 1274, 1280 (CA11 2022) (en banc). In early cases, that

was the government’s only argument. See, e.g., Sentencing

Tr. in No. 3:19–cr–207 (ED Tenn.), ECF Doc. 176, p. 4 (“I

think the Department of Justice’s position as well as our

position here today is . . . that it should be read disjunc-

tively”); see also Tr. of Oral Arg. 103. Only after a resound-

ing loss on that argument, see United States v. Lopez, 998

F. 3d 431, 435–443 (CA9 2021), did the government shift to

its implicit distribution theory, stressing that its new offer-

ing does not require courts to “transform” “and” into “or,”

see Brief for United States 42–43.

The government’s implicit distribution theory may be a

“convenient litigating position,” Bowen v. Georgetown Univ.

Hospital, 488 U. S. 204, 213 (1988), but it does not come

close to respecting the most natural construction of the law.

It may have the benefit of leaving “and” alone, but it comes

at the cost of rearranging so much else in the statute. One

way or another, the government cannot get where it wishes

to go without tinkering with the law. And to know that

much should be enough to bring this case to a close:

“Crimes are supposed to be defined by the legislature, not

by clever prosecutors riffing on equivocal language.” Dubin

v. United States, 599 U. S. 110, 129–130 (2023) (internal

quotation marks and alteration omitted).

B

How does the government reply? It insists that contex-

tual clues support its implicit distribution theory. These

12 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

clues are so compelling, it says, any other construction of

the law isn’t “plausible” or “possible.” Ante, at 16, 27; Brief

for United States 18–19. It is a bold claim, not only because

the government overlooks all the evidence of the statute’s

meaning outlined above, but also because it overlooks one

piece of contextual evidence after another weighing against

its implicit distribution theory.

Start with this one: The statute before us stands far

afield from classic cases that invite questions about implied

distribution. In everyday speech, the government stresses,

a listener may appreciate the need to “distribut[e]” what

this Court has called “several antecedents” to “several con-

sequents.” Encino Motorcars, LLC v. Navarro, 584 U. S. 79,

87 (2018) (quoting 2A N. Singer & S. Singer, Sutherland

Statutes and Statutory Construction §47:26, p. 448 (rev.

7th ed. 2014) (internal quotation marks omitted)). In its

brief before us, the government leads with this example of

the phenomenon: someone who says, “I sell red, white, and

blue caps.” See Brief for United States 14. That statement,

the government observes, contains an ambiguity. One lis-

tener might think that the seller offers caps bearing all

three colors. But another listener might wonder if the seller

implicitly means to “distribute” different colors to different

caps—so that she really means to say she sells red caps, she

sells blue caps, and she sells white caps. Only context, the

government insists, can resolve the ambiguity and reveal

which understanding best reflects the seller’s meaning. Id.,

at 16.

If context suggests anything, however, it is that this ob-

servation has little to offer when it comes to the statute be-

fore us. The First Step Act does not contain several “ante-

cedents” (many caps, for example) that might or might not

distribute among several “consequents” (say, colors). In-

stead, paragraph (f )(1) speaks of a single person—“the de-

fendant” presently before the sentencing court—who must

Cite as: 601 U. S. ____ (2024) 13

GORSUCH, J., dissenting

not have three specified traits (A, B, and C). And that “sin-

gular” construction “tends to avoid the ambiguity” about

distribution that a “plural” construction can invite. M.

Kirk, Legal Drafting: The Ambiguity of “And” and “Or,” 2

Tex. Tech. L. Rev. 235, 239–240 (1971); see also Huddle-

ston, Cambridge Grammar §1.3.1, at 1280–1281.

Drafting experts illustrate the point with this phrase:

“charitable and educational institutions.” R. Dickerson,

The Fundamentals of Legal Drafting §6.2, pp. 109–110 (2d

ed. 1986); Kirk, 2 Tex. Tech. L. Rev., at 239–241. The

phrase is ambiguous. The multiple “institutions” might dis-

tribute across the multiple listed traits to describe both

“charitable institutions and educational institutions.”

Dickerson, Fundamentals of Legal Drafting §6.2, at 110;

Kirk, 2 Tex. Tech. L. Rev., at 240. Or the term “institu-

tions” might not distribute, so the phrase describes only in-

stitutions that are both charitable and educational. Id., at

240–241. But if there is just a single “institution,” any am-

biguity dissipates: “A charitable and educational institu-

tion” is an institution with both traits. The same holds true

when a saleswoman offers “the red, white, and blue cap”:

In that case, a buyer knows with certainty that the seller

offers one kind of cap bearing all three colors.

This contextual clue poses the government with a serious

problem. When Congress wrote paragraph (f )(1), it em-

ployed a singular construction that tends to avoid the am-

biguity about distribution that plural constructions invite.

The statute before us thus bears no resemblance to the gov-

ernment’s lead illustration involving multiple caps and col-

ors. Nor does it bear any resemblance to the government’s

various illustrations from statutory and constitutional law

involving multiple “offenses” that fall into multiple classes,

see ante, at 11; Brief for United States 17–18 (discussing 34

U. S. C. §20101(f )); multiple “Cases” that meet multiple de-

scriptions, see ante, at 8–9; Brief for United States 40 (quot-

14 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

ing Art. III, §2, cl. 1); or the many kinds of “Commerce” Con-

gress can regulate, see ante, at 9; Brief for United States

39–40 (quoting Art. I, §8, cl. 3).2

Sensing the government’s difficulty, the Court struggles

for an example of its own involving a singular person or

thing that does generate an ambiguity about distribution.

Eventually, it lands on Eric Carle’s story about a caterpillar

who “ ‘ate through’ ” (among so many other things) “ ‘one

sausage, one cupcake, and one slice of watermelon.’ ” Ante,

at 8; see also ante, at 9, n. 3. Mission accomplished: One

child might implicitly distribute the phrase “ate through” to

each foodstuff, while another might read the list without

implicit distribution to mean the caterpillar ate through a

“combination” that includes them all. Ante, at 9.

But what does that prove? “[T]o acknowledge ambiguity

is not to conclude that all interpretations are equally plau-

sible.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U. S. 49, 57 (1987). And an example

of ambiguity about distribution in a children’s book does

nothing to prove that the federal criminal statute before us

is most plausibly read to require implicit distribution. Add

some of paragraph (f )(1)’s salient features into the illustra-

tion and that much becomes clear. As the story goes, the

caterpillar is in the process of becoming a butterfly. So sup-

pose the story said the caterpillar “will remain a caterpillar

if he does not eat (A) one sausage, (B) one cupcake, and (C)

one slice of watermelon.” I suspect most ordinary readers

(and children) would have little trouble concluding that the

sentence means that the caterpillar will remain a caterpil-

lar unless he eats all three things; one alone will not do.

——————

2 Although at first blush “Commerce” might appear to be a singular

noun, this term in fact describes “a noncountable abstraction,” Niz-

Chavez v. Garland, 593 U. S. 155, 163 (2021), that this Court has said

sweeps in “every species of commercial intercourse,” Gibbons v. Ogden, 9

Wheat. 1, 193 (1824).

Cite as: 601 U. S. ____ (2024) 15

GORSUCH, J., dissenting

C

Here’s another problem with the government’s theory: If

in some contexts a speaker might intend for a listener to

distribute words implicitly, the context before us counsels

against attributing any such intention to Congress. It does

because a careful look at the safety-valve statute reveals

that, when Congress wanted to distribute a phrase in this

law, it did not leave the matter to implication. It did not

depend on the reader’s imagination. Instead, Congress dis-

tributed phrases expressly.

Twice, in fact. In paragraph (f )(4), Congress took the

trouble to distribute expressly the phrase “was not,” per-

mitting relief only if “the defendant was not an organizer,

leader, manager, or supervisor of others . . . and was not en-

gaged in a continuing criminal enterprise.” (Emphases

added.) Likewise, in paragraph (f )(1) itself Congress ex-

pressly distributed the phrase “as determined under the

sentencing guidelines” three times, in each of subpara-

graphs (A), (B), and (C). All the contextual evidence before

us thus suggests that, in a statute carrying grave criminal

consequences, Congress was careful with its words and con-

cerned with clarity. It did not leave ambiguities about dis-

tribution to be resolved by implication. Instead, it resolved

them expressly, even at the cost of repetition.

Once more, the government’s examples only serve to il-

lustrate its problem. It imagines a speaker who says, “ ‘I

didn’t like his mother and father.’ ” Ante, at 10; Brief for

United States 39. The government suggests that a listener

would “probably” understand the sentence as implicitly dis-

tributing the phrase “I didn’t like his,” so that it really

means, “I didn’t like his mother and I didn’t like his father.”

Ante, at 10 (emphasis added); Brief for United States 39.

But as the hedge (“probably”) indicates, an ambiguity lurks

here. The sentence could also be understood without any

distribution to convey the idea that “I didn’t like his mother

and father” as a couple, even if I liked each individually well

16 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

enough. See Huddleston, Cambridge Grammar §2.2.2, at

1298–1299.3 Only context, the government concedes, can

clarify which meaning is more apt. See ante, at 15; Brief

for United States 16. Yet somehow, the government ne-

glects that same message when it comes to the statute be-

fore us—where context reveals that Congress did not leave

questions of distribution to implication but resolved them

expressly.

D

Context exposes yet another flaw in the government’s im-

plicit distribution theory. If, as the government imagines,

Congress was determined to find an “efficient” way to dis-

qualify a defendant bearing any one of the three traits

listed in paragraph (f )(1), ante, at 8, 13; see Brief for United

States 18, it had an obvious solution before it: the word

“or.” As we have seen, Congress employed exactly that ap-

proach three times in the safety valve: Paragraphs (f )(2),

(f )(3), and (f )(4) all premise disqualification for relief on the

presence of one trait or another. See Part II–B, supra. In

this way, too, context confirms that, when Congress wanted

to make one trait among many disqualifying, it proceeded

expressly (and often efficiently)—but never by implication.

After disregarding others, the government at least

acknowledges this particular complication for its theory. It

responds this way: Even substituting “or” for “and,” it says,

would not “delive[r] us from interpretive controversy.”

Ante, at 12; Brief for United States 26. It would not because

replacing “and” with “or” in paragraph (f )(1) still would not

——————

3 Same goes for the government’s example “I’m not free on Saturday

and Sunday.” Ante, at 10; Brief for United States 39. In some contexts,

the sentence might be understood to distribute the phrase “I’m not free

on” and mean “I’m not free on Saturday and I’m not free on Sunday.” In

others (suppose you were asked for help with a 2-day home renovation

project), it might mean “I’m not free on Saturday and Sunday” as a com-

bination, even if I am free one day or the other. See Huddleston, Cam-

bridge Grammar §2.2.2, at 1298–1299.

Cite as: 601 U. S. ____ (2024) 17

GORSUCH, J., dissenting

answer the question whether a single trait alone is enough

to render a defendant ineligible for relief. Ante, at 12; Brief

for United States 26. As evidence of the malleability of the

word “or” in some contexts, the Court cooks up various il-

lustrations involving a hypothetical chef. Ante, at 12, n. 5.

It is a remarkable response. At argument, the govern-

ment acknowledged that “or” “might have been a clearer

way to express” that a single trait is disqualifying in para-

graph (f )(1). Tr. of Oral Arg. 98. Below, the government

initially pushed for treating “and” as meaning “or” precisely

because it knew that doing so would mean that a defendant

is ineligible for relief if he has even one of its listed traits.

See id., at 101; Government CA9 Brief 11–13; Government

CA8 Brief 7–8. And everyone, the Court included, concedes

that Congress’s use of the word “or” in paragraph (f )(4)

means that a defendant meeting any one of several criteria

is disqualified from relief. Ante, at 25. Simply put, “we

wouldn’t be sitting here if Congress had used the word ‘or’ ”

in paragraph (f )(1). Tr. of Oral Arg. 97. Whatever ambigu-

ity “or” might carry in other contexts, it carries none in

§3553(f ). Throughout the safety valve, Congress used it to

indicate that a single trait among many is disqualifying.4

——————

4 Alternatively, the government suggests, Congress might have used

“and” in paragraph (f )(1) rather than “or” as it did in paragraphs (f )(2)–

(4) because of something to do with the length or format of these provi-

sions. To that end, the government invites us to compare paragraphs

(f )(1) and (f )(4). Tr. of Oral Arg. 64; see also ante, at 25. But, as it turns

out, those paragraphs are almost the same length: 49 words and 40

words, respectively. See §§3553(f )(1), (4). Nor can much be made of the

formatting. The main difference is paragraph (f )(1)’s use of an em dash

to set off the listed traits. But even the government has declined to make

much of the em dash, and for good reason. It simply “mark[s] an inter-

ruption in the structure of a sentence,” substituting here for a colon. B.

Garner, Modern English Usage 750 (4th ed. 2016). No party before us

suggests that this em dash is so versatile that it can transform an inter-

ruption into an implied distribution. See Brief for United States 38–39

(conceding that an em dash “is neither necessary nor sufficient for a dis-

tributive interpretation” (emphasis added)).

18 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

Finding the government on its back foot, the Court again

comes to its defense, this time by trying to change the rules

of play. Perhaps, the Court speculates, Congress’s choice of

“and” rather than “or” in paragraph (f )(1) was the product

of careless drafting. See ante, at 11–12. Perhaps, too, those

two conjunctions are “versatile” words not entitled to the

respect we usually pay Congress’s variations in usage—a

respect, the Court suggests, that is due only “to terms with

some heft and distinctiveness, whose use drafters are likely

to keep track of and standardize.” Ante, at 23, 25.

Consider how far we have now retreated. Lower courts

rejected the government’s and-means-or argument. In re-

sponse, the government introduced its implicit distribution

theory. Before us, the government stresses that its new

theory does not depend on “transform[ing]” “and” into “or.”

Brief for United States 42; see also id., at 15, 25. At first,

the Court seems to proceed on the same premise. See ante,

at 7–8. But now it reverses course. Resuscitating an argu-

ment the government itself has abandoned, the Court con-

tends not just that the terms “and” and “or” are inter-

changeable, but that we need not even rely on our usual

rules of interpretation when faced with them.

This argument was a loser below and it should be here.

When Congress employs “differing language in . . . two sub-

sections,” we start from a presumption that it meant to con-

vey a difference in meaning, not a presumption that it made

“a simple mistake in draftsmanship.” Russello v. United

States, 464 U. S. 16, 23 (1983). Never, to my knowledge,

has this Court suggested that we may turn our back on this

approach when conjunctions or other putatively “indistinc-

tive” words are in play. Nor have we deployed that ap-

proach for “hefty” words alone—as if we were picking paper

towels instead of interpreting statutes. To the contrary, our

cases begin (and often end) with the presumption that Con-

gress is careful in all its word choices and afford variations

Cite as: 601 U. S. ____ (2024) 19

GORSUCH, J., dissenting

between terms like “and” and “or” the same respect due oth-

ers. See, e.g., United States v. Palomar-Santiago, 593 U. S.

321, 326 (2021) (reversing the lower court for failing to give

effect to a statute’s use of “the conjunctive ‘and’ ”); Encino

Motorcars, 584 U. S., at 87 (resting a reading of the relevant

statute on “the ordinary, disjunctive meaning of ‘or’ ”);

Loughrin v. United States, 573 U. S. 351, 357 (2014) (reject-

ing an argument that would “disregard what ‘or’ customar-

ily means”); Reiter v. Sonotone Corp., 442 U. S. 330, 338–

339 (1979) (similar); Rumsfeld v. Padilla, 542 U. S. 426, 434

(2004) (giving weight to the federal habeas statute’s “con-

sistent use of the definite article”).5

Nor could the premise latent in the Court’s argument be

further from the truth. The difference between words like

“and” and “or” often cannot be easily dismissed as meaning-

less when it comes to settling legal rights. Just imagine if

the Sixth Amendment gave the accused a “right to a speedy

or public trial.” Rather than getting a both timely and

transparent trial, a defendant would be forced to choose

which feature he prefers. Because the difference between

“and” and “or” so regularly proves dispositive of important

legal rights, drafting manuals for legal text from contracts

to congressional legislation warn about the need to deploy

the terms with care. See, e.g., Senate Office of the Legisla-

tive Counsel, Legislative Drafting Manual 64–65 (1997); K.

Adams, A Manual of Style for Contract Drafting §§11.9–

11.11, p. 211 (3d ed. 2013). And here, of course, the differ-

ence between “and” and “or” affects the lives of thousands,

see supra, at 7—a fact so inconvenient for the Court that

the Court says to ignore it as well, see ante, at 26.6

——————

5 Even the cases the Court cites, see ante, at 23, describe the presump-

tion of meaningful variation without the qualification it now imagines.

See IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005); Wisconsin Central Ltd.

v. United States, 585 U. S. 274, 279 (2018).

6 The Court offers still one more guess, again premised on careless

drafting, about why Congress used “and” rather than “or.” Maybe, the

20 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

IV

So far, things look bleak for the government. Mr. Pulsifer

offers a perfectly natural reading of the law. In response,

the government offers a theory that it says rises or falls

based on context. See ante, at 15; Brief for United States

11, 16. Yet, as it turns out, not one but three contextual

clues array against its theory.

Unable to muster a convincing response to any of that,

the government pivots. Even if its implicit distribution the-

ory suffers so many flaws, the government urges us to adopt

it anyway because Mr. Pulsifer’s reading of the law would

introduce a superfluity into the safety-valve statute. It is a

resourceful reply. The government has many. But it, too,

falls flat.

A

Without question, the canon against superfluity can be a

useful tool when seeking the meaning of a statute. It rests

on the same principle as the canon of meaningful variation:

the presumption that Congress is a careful drafter and each

word it chooses “is there for a reason.” Advocate Health

Care Network v. Stapleton, 581 U. S. 468, 477 (2017). But

that fact also makes the government’s choice to rest its case

on the superfluity canon a curious one. As we have seen,

——————

Court posits, when Congress amended paragraph (f )(1) in 2018 it failed

to notice that it had used “or” when drafting paragraphs (f )(2)–(f )(4) in

1994. Ante, at 25–26. Normally, though, we assume “that Congress is

aware of existing law when it passes legislation.” Miles v. Apex Marine

Corp., 498 U. S. 19, 32 (1990). And it beggars belief to suppose that Con-

gress didn’t bother to review the rest of the safety valve when it amended

one of its provisions—particularly when it knew that defendants, prose-

cutors, and judges would necessarily read all five safety-valve provisions

together as part of a single “eligibility checklist.” Ante, at 24; cf.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484

U. S. 49, 57, and n. 2 (1987) (pointing to meaningful variation between

the statutory language at issue and other, later enacted statutory provi-

sions to counter the assertion that the choice of language was “a ‘careless

accident’ ”).

Cite as: 601 U. S. ____ (2024) 21

GORSUCH, J., dissenting

the government’s implicit distribution theory depends on

the assumption that Congress was not a careful drafter. It

requires us to assume Congress left a distribution implicit

in one section of paragraph (f )(1), even as it made others

express elsewhere in paragraphs (f )(1) and (f )(4). It re-

quires us to assume Congress meant for “and” in paragraph

(f )(1) to do the same work as “or” in paragraphs (f )(2)–

(f )(4). Sometimes, it seems, we are supposed to assume

Congress was sloppy, other times careful. The only common

thread seems to be what benefits the government in the mo-

ment.

Even putting that small irony aside, the government has

a bigger problem: Mr. Pulsifer’s reading leaves no provision

in this statute superfluous. As the government sees it, a

defendant who has both the prior 3-point offense required

by subparagraph (B), and the 2-point violent offense re-

quired by subparagraph (C), will necessarily have more

than the 4 criminal history points required by subpara-

graph (A). Because of this, the government submits, sub-

paragraph (A) has no work to perform on Mr. Pulsifer’s

reading: “Remove it from the statute, and what is left will

make the exact same people eligible (and ineligible) for re-

lief.” Ante, at 17; Brief for United States 19–20. Only its

implicit distribution theory, the government contends, can

cure the problem by allowing one subparagraph to “dis-

qualif[y] defendants from relief even when the others would

not.” Ante, at 16; Brief for United States 19–20.

It’s a nice argument, but it rests on a faulty premise. As

it happens, a defendant who has a 3-point offense under

subparagraph (B) and a 2-point violent offense under sub-

paragraph (C) often will not have “more than 4 criminal his-

tory points . . . under the sentencing guidelines” for pur-

poses of subparagraph (A). And in cases like that,

subparagraph (A) performs vital work under Mr. Pulsifer’s

reading of the law by ensuring that the defendant remains

eligible for relief. There is simply no surplus here for the

22 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

government’s implicit distribution theory to cure.

To appreciate why this is so, consider the sentencing

guidelines Congress cross-referenced in subparagraphs (A)

through (C). They set forth a two-step process for calculat-

ing a defendant’s criminal history. At the first step, dis-

cussed in §4A1.1 of the guidelines, a judge assigns points to

the defendant’s prior offenses. Usually, the points corre-

spond to the length of the defendant’s previous sentences.

So, for example, three points normally attach to an offense

carrying a sentence longer than 13 months, two points to an

offense with a sentence shorter than that but at least 60

days long, and one point to any other sentence.

At the second step, described in §4A1.2 of the guidelines,

a judge then computes the defendant’s criminal history.

But during this process, a judge doesn’t just tote up all the

points assigned to each offense. Under a variety of circum-

stances, the guidelines instruct a judge not to count points

assigned to one offense or another. Points associated with

hitchhiking, public intoxication, and fish and game of-

fenses, for example, “are never counted.” §4A1.2(c)(2). Nor

are points associated with sentences imposed by a court-

martial, a foreign court, or a tribal court. §§4A1.2(g)–(i).

The guidelines also instruct judges not to count points as-

sociated with offenses of a certain age. So, by way of illus-

tration, if the defendant finished his sentence for a 3-point

offense more than 15 years ago, those points are not

counted. Likewise, if the defendant finished his sentence

for a 2-point offense more than 10 years ago, those points

do not count. §§4A1.2(e)(1)–(3). Courts thus perform “a sin-

gle calculation” of a defendant’s criminal history score.

Ante, at 19, n. 6. But in doing so, they routinely distinguish

between the points an offense carries and a defendant’s ul-

timate, countable criminal history points.7

——————

7 See, e.g., United States v. Nesby, 2020 WL 4933657, *2 (SD Ill., Aug.

24, 2020) (defendant had “accumulated 34 criminal history points, many

Cite as: 601 U. S. ____ (2024) 23

GORSUCH, J., dissenting

Now return to subparagraph (A). It provides that the de-

fendant must not have “more than 4 criminal history

points, excluding any criminal history points resulting from

a 1-point offense, as determined under the sentencing

guidelines.” §3553(f )(1)(A) (emphasis added). As the itali-

cized language demonstrates, when adopting the First Step

Act Congress fully appreciated the distinction between

what points an offense carries and whether those points

contribute to a defendant’s criminal history score. And be-

cause of that very distinction, it is possible for a defendant

to have a prior 3-point offense and a prior 2-point violent

offense without having more than 4 criminal history points.

Most obviously, as Chief Judge Pryor, former Acting Chair

of the Sentencing Commission, has observed, a defendant

may have a 3-point offense and a 2-point violent offense but

both offenses are so old that he scores no criminal history

points at all. See USSG §§4A1.2(e)(1)–(3); Garcon, 54 F.

4th, at 1281. As Judge Wood has noted, there are a variety

of other situations as well in which a defendant will have

both a 3-point offense and a 2-point violent offense but still

not have more than four criminal history points. See

United States v. Pace, 48 F. 4th 741, 763–764 (CA7 2022)

(dissenting opinion).

To know that is to know no superfluity problem exists—

and thus no need to resort to the government’s implicit dis-

tribution theory to solve it. On Mr. Pulsifer’s reading of the

——————

of which were not countable in his criminal history calculation”); Jones

v. United States, 2019 WL 365715, *3 (D NJ, Jan. 30, 2019) (“The sen-

tencing guidelines only permit a maximum of four one-point offenses to

count toward a defendant’s criminal history”); United States v. Johnson,

2023 WL 4944732, *1 (WD Pa., Aug. 3, 2023) (same); Dameron v. United

States, 2007 WL 893050, *4, n. 1 (ND Ohio, Mar. 21, 2007) (“The criminal

convictions above produce a subtotal criminal history score of 10, and it

is noted that 3 of the defendant’s 7 points under U.S.S.G. §4A1.1(c) were

not countable”); United States v. Dalton, 2010 WL 455239, *3 (D SC, Feb.

2, 2010) (noting 45 uncountable criminal history points “in addition to

the fifteen countable criminal history points”).

24 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

law, a court applying subparagraph (A) will consult the sen-

tencing guidelines’ methodology for scoring criminal history

points set forth in §4A1.2. In doing so, the court may find

that, while the defendant has a prior 3-point offense and a

prior 2-point violent offense for purposes of subparagraphs

(B) and (C), one or another is too old or suffers from some

other flaw so that he does not have more than four criminal

history points. In all these cases, subparagraph (A) does

significant work by making clear that, despite having a

prior 3-point offense and a prior 2-point violent offense, the

defendant remains eligible for relief. See Garcon, 54 F. 4th,

at 1281–1282; Pace, 48 F. 4th, at 763 (opinion of Wood, J.).

B

The government does not contest the central observation

that defeats its superfluity argument. It admits that cer-

tain past offenses “ad[d] zero points to [a defendant’s] crim-

inal-history score.” Brief for United States 32, n. 2; ante, at

17. So what exactly is the problem here?

To complain about a superfluity problem, it turns out the

government must create one. It does so this way. As writ-

ten, subparagraphs (B) and (C) require a sentencing court

to ask whether the defendant “ha[s]” a “3-point offense, as

determined under the sentencing guidelines,” and “a 2-

point violent offense, as determined under the sentencing

guidelines.” But, the government suggests, we should read

those provisions differently. We should read them to re-

quire a sentencing court to ask the further question

whether the defendant’s offenses also score criminal history

points. As the government candidly admits, its superfluity

argument depends on reading subparagraphs (B) and (C) as

“car[ing] only about offenses that do score . . . criminal-

history points.” Brief for United States 28–29; ante, at 19–

20. Only then might subparagraph (A) be left without work

to perform, for indeed an offense that scores three criminal

history points under subparagraph (B) and a violent offense

Cite as: 601 U. S. ____ (2024) 25

GORSUCH, J., dissenting

that scores two criminal history points under subparagraph

(C) will always score more than four criminal history points

under subparagraph (A).

Put plainly, for the government’s superfluity argument to

gain any traction, we must read still more words into the

First Step Act, construing it now this way:

(1) the defendant does not have —

(A) does not have more than 4 criminal history

points, excluding any criminal history points resulting

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

tencing guidelines;

(B) does not have a prior 3-point offense that

scores 3 criminal history points, as determined un-

der the sentencing guidelines; and

(C) does not have a prior 2-point violent offense

that scores 2 criminal history points, as deter-

mined under the sentencing guidelines.

It is one more remarkable request. Last I heard, the

canon against assuming Congress has adopted superfluous

words is not a license for judges to create a superfluity by

inserting new words into a law. Let alone do so simply to

help the government make its implicit distribution theory

seem just a little less implausible.

V

At this stage, the government withdraws to its final re-

doubt: a policy argument. In the government’s view, the

only “function” Congress gave paragraph (f )(1) was the task

of separating “more from less serious prior offenders.” Ante,

at 21–22; Brief for United States 21. Affording the statute’s

terms their ordinary meaning, the government asserts,

would not allow the law to perform that “purpose” ade-

quately. Brief for United States 20. By contrast, its implicit

distribution theory would enable the law to fulfill its in-

tended “role” “unerringly.” Ante, at 21, 22, n. 7; Brief for

26 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

United States 21.

If this policy argument sounds familiar, it is because we

have time and again rejected ones just like it. We do not

presume that a law performs only one “function” or “role,”

but recognize that almost every piece of legislation seeks to

serve many competing purposes. See Luna Perez v. Sturgis

Public Schools, 598 U. S. 142, 150 (2023); Barnhart, 534

U. S., at 461; Chicago v. Environmental Defense Fund, 511

U. S. 328, 339 (1994). We do not suppose that a law pursues

any of those competing purposes to its logical end, acknowl-

edging instead that almost every law is the product of com-

promise. Luna Perez, 598 U. S., at 150. And we do not dis-

place ordinary statutory terms with judicial “speculation as

to Congress[’s] intent,” Magwood v. Patterson, 561 U. S.

320, 334 (2010), because the American people have con-

sented to be governed by the written laws their elected rep-

resentatives adopt, not by the conjecture of others, see

United States v. Bass, 404 U. S. 336, 348 (1971). For all

these reasons and more, “it is quite mistaken to assume,”

as the government does, “that whatever might appear to

further the statute’s primary objective must be the law.”

Henson v. Santander Consumer USA Inc., 582 U. S. 79, 89

(2017) (internal quotation marks and alterations omitted).

Perhaps recalling our frequent admonition that policy

talk cannot overcome plain text, the government tries a bit

of rebranding. Although it refers occasionally to the First

Step Act’s “purpose,” Brief for United States 20–21, 34, 48,

for the most part it frames its argument in terms of ration-

ality. When we measure the competing interpretations be-

fore us against how well they perform the statute’s only job,

the government insists, we will find that the law’s ordinary

meaning invites “arbitrar[y]” results and “nonsensical” im-

plications. Id., at 22, 34, 36, 48. The Court buys into this

thinly disguised policy appeal, see ante, at 20–22, and n. 7,

even as it forcefully (and without a trace of irony) faults Mr.

Pulsifer for appealing to statutory “purpose,” ante, at 26.

Cite as: 601 U. S. ____ (2024) 27

GORSUCH, J., dissenting

New framing or old, however, we have no business enter-

taining the government’s ramshackle argument.

If anything, the government’s attempt at rebranding only

makes matters worse for it. When a statute produces a

truly irrational result, we have a doctrine to deal with the

dilemma: absurdity. In narrow circumstances, a simple

and “eas[ily]” fixed statutory error that “no reasonable per-

son could intend” may be amenable to judicial correction

under this Court’s traditional absurdity doctrine. See A.

Scalia & B. Garner, Reading Law: The Interpretation of

Legal Texts 234, 237 (2012); Story, Commentaries §427, at

411. It is a highly demanding doctrine—deliberately so, for

judges have no license to rewrite a law’s terms just because

they happen to think different ones more sensible. And,

tellingly, no one thinks this law produces anything like an

absurd result that might call for a judicial remedy. In fact,

the government affirmatively disavows any reliance on ab-

surdity doctrine. See Brief for United States 36. Instead,

it only gestures vaguely in the direction of “nonsensical” re-

sults and asks us to run with the idea. As if we could tinker

with Congress’s work on the basis of some newly fashioned

“absurdity-lite” doctrine.

There is a reason why the government does not attempt

an argument actually grounded on absurdity doctrine. Its

core complaint is that the natural reading of the law does

not, with sufficient precision, separate “more from less se-

rious prior offenders.” Ante, at 22; Brief for United States

21. But, of necessity, Congress often deploys “standardized

formula[s]” or checklists, like the one found in paragraph

(f )(1), that “are by their nature over- and under-inclusive.”

Ransom v. FIA Card Services, N. A., 562 U. S. 61, 78 (2011).

And because Congress may rationally prefer these ap-

proaches for various reasons, including their ease of admin-

istration, this Court has long held that we will not second-

guess them merely because they may produce some

“oddit[ies]” or “anomalies.” Ibid.; see Rodriguez v. United

28 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

States, 480 U. S. 522, 526 (1987) (per curiam) (“Deciding

what competing values will or will not be sacrificed to the

achievement of a particular objective is the very essence of

legislative choice”).8

If, as the government supposes, a seemingly anomalous

result alone could unsettle a statute, it would face its own

troubles, too. Under its implicit distribution theory, an in-

dividual who previously committed a nonviolent offense

and received a sentence longer than 13 months (i.e., a 3-

point offense) is categorically ineligible for relief. Mean-

while, an individual who committed the same crime but re-

ceived a sentence equal to or one day less than 13 months

(i.e., a 2-point offense) thanks to a slightly more lenient sen-

tencing judge remains eligible for relief. Rather than “un-

erringly” enable the safety valve to “separat[e] more serious

prior offenders from less serious ones,” ante, at 21, the gov-

ernment’s approach thus leaves much to happenstance and

luck—an anomalous result indeed.

Return, then, to our actual absurdity doctrine and con-

sider the government’s argument in its light. The govern-

ment worries that respecting paragraph (f )(1) as written

would treat “more serious” offenders too leniently. But in

doing so, the government ignores what follows. A defend-

ant who satisfies paragraph (f )(1) must still go on to satisfy

paragraphs (f )(2)–(5). And those provisions collectively op-

erate to deny relief to virtually anyone whose current of-

fense involves any trace of violence.

Even if a “more serious” offender could somehow thread

——————

8 In a footnote, the Court concedes that both sides read paragraph (f )(1)

as announcing a standardized formula or checklist that inevitably pro-

duces some “anomalies.” Ante, at 22, n. 7. Yet the Court proceeds to

reject Mr. Pulsifer’s reading. Why? Only because it thinks that inter-

pretation is just worse at performing the paragraph’s “role.” Ibid. Once

more, the Court resorts to policy and purpose to escape its interpretive

dilemma. And once more, it fails to heed its own advice to Mr. Pulsifer

that one “interpretation is not better” than another “just because it would

go further” in advancing some view about the law’s “role.” Ante, at 26.

Cite as: 601 U. S. ____ (2024) 29

GORSUCH, J., dissenting

his way through all those needles, too, another would await.

The safety valve instructs a sentencing court to fashion a

sentence “pursuant to [the] guidelines.” §3553(f ). The

guidelines expressly account for a defendant’s criminal his-

tory, and few would accuse them of leniency toward those

with a history of serious offenses. In fact, defendants with

significant criminal histories often wind up with a recom-

mended guidelines sentence higher than the otherwise-ap-

plicable mandatory minimum. See Brief for National Asso-

ciation of Federal Defenders as Amicus Curiae 7–8.

Sentencing courts may have the discretion to vary or depart

from the guidelines’ recommended ranges. But Congress

could have rationally trusted courts to exercise that discre-

tion with an appreciation for the fact that individuals with

serious criminal histories—such as the government’s hypo-

thetical defendant with many prior three-point violent of-

fenses, see ante, at 21–22; Brief for United States 23—war-

rant equally serious sentences. So, looking to the law as a

whole (as we must) and appreciating that Congress often

legislates using standardized formulas or checklists that

may be over- and under-inclusive (again, as we must), there

is nothing approaching an absurdity that might license us

to rewrite the First Step Act.9

In a final effort to bolster the government’s case, the

Court professes an entirely different concern of its own. It

claims to worry that the natural reading of the law would

——————

9 Nor is it clear that a “more serious” offender could even make it past

paragraph (f )(1) to begin with. The government seems to worry that a

3-point violent offense would not count as a 2-point violent offense under

subparagraph (C), thus allowing some violent offenders to satisfy para-

graph (f )(1) under its most natural construction. Ante, at 21–22; Brief

for United States 22–23. But, while Mr. Pulsifer has not pursued the

point in his case and so it is not at issue before us, some lower courts

have held that an ordinary person would read subparagraph (C)’s refer-

ence to a 2-point violent offense to embrace a violent offense carrying at

least that many points. See, e.g., Lopez, 998 F. 3d, at 440–441, n. 10; see

also Pace, 48 F. 4th, at 765 (Wood, J., dissenting).

30 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

sometimes be too harsh in operation. Holding a defendant

ineligible for safety-valve relief based on offenses that score

“zero points,” we are told, would be “out-of-sync” with the

law’s purpose. Ante, at 20. But there is nothing absurd

here either. Subparagraph (A) provides that defendants

are eligible for relief as long as their past convictions do not

yield more than four criminal history points—a calculation

that, as we have seen, does not include points associated

with old crimes and certain other offenses. Subparagraphs

(B) and (C) provide that other defendants with more than

four criminal history points are eligible for relief too as long

as they don’t have anywhere in their past a serious (3-point)

offense and a weighty (2-point) violent offense—even if

those offenses are (say) too old to contribute to their crimi-

nal history scores. So whatever unfairness the Court may

perceive in one part of the safety valve (here, subpara-

graphs (B) and (C)) is diminished when considered in light

of another (here, subparagraph (A)). Some might prefer a

different arrangement, but the one Congress ordained is

hardly absurd.

If any law demonstrates the wisdom of our usual rules

against elevating policy appeals over plain text, it is this

one. Under the ordinary meaning of the statute, it is possi-

ble some “more serious” offenders may make it past para-

graph (f )(1), and perhaps even end up receiving an individ-

ualized sentence under guidelines that hardly exhibit

solicitude for those with “more serious” criminal histories.

Under the implicit distribution theory, in contrast, the

availability of individualized sentencing may depend on the

happenstance of one extra day in prison. In the end, at-

tempting to pick between these two outcomes proves noth-

ing more than the futility of the exercise. However artfully

the government frames its dissatisfaction with the text of

the statute, we have neither the institutional competence

nor the constitutional mandate “to assess the relative mer-

its of different approaches” Congress could have taken.

Cite as: 601 U. S. ____ (2024) 31

GORSUCH, J., dissenting

Hartford Underwriters Ins. Co. v. Union Planters Bank,

N. A., 530 U. S. 1, 13 (2000). Our role is a more modest one:

“[W]hen the statute’s language is plain” and “the disposi-

tion required by the text is not absurd,” “the sole function

of the courts . . . is to enforce it according to its terms.” Id.,

at 6 (internal quotation marks omitted). Because that is

undoubtedly the case here, we must apply the safety valve

as written.

VI

As I see it, the government hasn’t come close to supplying

a lawful basis for departing from the law’s ordinary mean-

ing. Suppose, though, at the end of this long march through

its inventive theories you remain unsure. Suppose you are

left with a reasonable doubt about whether Mr. Pulsifer or

the government has the better reading of the law. In cir-

cumstances like that, another rule of construction supplies

an answer. It is lenity.

The rule of lenity “is perhaps not much less old than con-

struction itself.” United States v. Wiltberger, 5 Wheat. 76,

95 (1820) (Marshall, C. J.); see Wooden v. United States, 595

U. S. 360, 388 (2022) (GORSUCH, J., concurring in judgment)

(citing The Adventure, 1 F. Cas. 202, 204 (No. 93) (CC Va.

1812) (Marshall, C. J.)). It requires courts to interpret am-

biguous “penal laws,” including those concerning sentenc-

ing, in favor of liberty, not punishment. Wiltberger, 5

Wheat., at 95; United States v. Batchelder, 442 U. S. 114,

121 (1979); Bifulco v. United States, 447 U. S. 381, 387

(1980).

This rule enforces weighty constitutional values. Courts

construe ambiguous penal laws with lenity because a free

nation operates against a background presumption of indi-

vidual liberty. See Wooden, 595 U. S., at 391–392 (opinion

of GORSUCH, J.). We resolve doubts about a criminal law’s

reach in favor of lenity, too, because in our federal govern-

ment only the people’s elected representatives, not their

32 PULSIFER v. UNITED STATES

GORSUCH, J., dissenting

judges, are vested with the power to “define a crime, and

ordain its punishment.” Wiltberger, 5 Wheat., at 95; accord,

Crandon v. United States, 494 U. S. 152, 158 (1990);

Wooden, 595 U. S., at 391–392 (opinion of GORSUCH, J.).

Lenity protects vital due process interests, as well, by en-

suring individuals fair notice of the consequences of their

actions. United States v. Lanier, 520 U. S. 259, 266 (1997);

see McBoyle v. United States, 283 U. S. 25, 27 (1931);

Wooden, 595 U. S., at 389–391 (opinion of GORSUCH, J.).

And lenity performs still further work, guarding against the

possibility that judges might condemn unpopular individu-

als to punishment on the strength of their own views about

common sense, good public policy, or “no more than a guess

as to what Congress intended.” Ladner v. United States,

358 U. S. 169, 178 (1958).

So suppose you thought a reasonable doubt remained

about how best to construe the First Step Act. In those cir-

cumstances, the answer cannot be to adopt an interpreta-

tion that restricts safety-valve relief to thousands more in-

dividuals. The only permissible answer is one that favors

liberty.

VII

Today, the Court does not hedge its doubts in favor of lib-

erty. Instead, it endorses the government’s implicit distri-

bution theory and elevates it over the law’s ordinary and

most natural meaning.

It is a regrettable choice that requires us to abandon one

principle of statutory interpretation after another. We

must read words into the law; we must delete others. We

must ignore Congress’s use of a construction that tends to

avoid, not invite, questions about implicit distribution. We

must dismiss Congress’s variations in usage as sloppy mis-

takes. Never mind that Congress distributed phrases ex-

pressly when it wanted them to repeat in the safety valve.

Cite as: 601 U. S. ____ (2024) 33

GORSUCH, J., dissenting

Never mind that Congress used “or” when it sought an effi-

cient way to hinge eligibility for relief based on a single

characteristic. We must then read even more words yet into

the law to manufacture a superfluity problem that does not

exist. We must elevate unexpressed congressional pur-

poses over statutory text. Finally, rather than resolve any

reasonable doubt about statutory meaning in favor of the

individual, we must prefer a more punitive theory the gov-

ernment only recently engineered.

Today, the Court indulges each of these moves. All to

what end? To deny some individuals a chance—just a

chance—at relief from mandatory minimums and a sen-

tence that fits them and their circumstances. It is a chance

Congress promised in the First Step Act, and it is a promise

this Court should have honored. Respectfully, I dissent.