Amicus Curiae Brief — Mark E. Pulsifer, Petitioner v. United States

No. 22-340

IN THE

Supreme Court of the United States

_________________________________________________

MARK E. PULSIFER,

Petitioner,

v.

UNITED STATES,

Respondent.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

May 26, 2023

i

TABLE OF CONTENTS

Table of Authorities ...................................................... ii

Brief of Amicus Curiae in Support of Petitioner ........ 1

Interest of Amicus Curiae ............................................ 1

Summary of Argument ................................................. 2

Argument ....................................................................... 4

I.

Congress Must Be Presumed to Have Said In

Section 402 What It Meant and Meant What It

Said. “And” Means “And” ...................................... 4

II. “And” Is Not a Cryptic Synonym for “Or” .......... 10

III. Taking Congress At Its Word—“And”—Allows

Judges to Impose Individualized Sentences that

Protect Public Safety, Also Tempering Justice

With Mercy ........................................................... 16

IV. The Rule of Lenity Resolves Any Lingering

Doubts ................................................................... 21

V. It is Not the Province of This Court to Rescue

Congress From Its Policy Choices ...................... 26

Conclusion ................................................................... 28

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) ............................................... 24

Alt. Energy, Inc. v. St. Paul Fire &

Marine Ins. Co.,

267 F.3d 30 (1st Cir. 2001) ..................................... 6

Anderson v. Wilson,

289 U.S. 20 (1933) ................................................. 26

Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ............................................... 26

Atlantic Cleaners & Dyers, Inc. v.

United States,

286 U.S. 427 (1932) ................................................. 8

Bifulco v. United States,

447 U.S. 381 (1980) ............................................... 25

Bittner v. United States,

143 S. Ct. 713 (2023) ................................... 9, 21, 25

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) ................................... 4, 5, 26

Brown v. Gardner,

513 U.S. 115 (1994) ................................................. 8

iii

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023) ................................. 22

Commissioner v. Acker,

361 U.S. 87 (1959) ................................................. 25

Concepcion v. United States,

142 S. Ct. 2389 (2022) ..................................... 16, 27

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ....................................... 5, 7, 11

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ........................................... 23

Gross v. FBL Financial Services, Inc.,

557 U.S. 167 (2009) ................................................. 5

Hardt v. Reliance Standard Life Ins.

Co.,

560 U.S. 242 (2010) ................................................. 5

Harrison v. Vose,

50 U.S. (9 How.) 372 (1850) .................................. 24

Hughey v. United States,

495 U.S. 411 (1990) ............................................... 23

Husky Int’l Elec’s, Inc. v. Ritz,

578 U.S. 355 (2016) ............................................... 11

IBP, Inc. v. Alvarez,

546 U.S. 21 (2005) ................................................... 9

iv

Koon v. United States,

518 U.S. 81 (1996) ................................................. 16

Lamie v. United States Tr.,

540 U.S. 526 (2004) ............................................... 26

Lynch v. Alworth-Stephens Co.,

267 U.S. 364 (1925) ............................................... 15

MacDonald v. Pan Am. World Airways,

859 F.2d 742 (9th Cir. 1988) .......................... 10, 15

Marx v. Gen. Revenue Corp.,

568 U.S. 371 (2013) ............................................... 11

Moskal v. United States,

498 U.S. 103 (1990) ............................................... 24

National Credit Union Admin v. First

Nat. Bank & Trust Co.,

522 U.S. 479 (1998) ................................................. 8

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023) ................................. 27

Pub. Citizen v. United States Dep’t of

Justice,

491 U.S. 440 (1989) ............................................... 13

Richards v. United States,

369 U.S. 1 (1962) ................................................... 26

Rimini St., Inc. v. Oracle USA, Inc.,

139 S. Ct. 873 (2019) ............................................. 11

v

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ............................................... 5

Shular v. United States,

140 S. Ct. 779 (2020) ............................................. 23

Small v. United States,

544 U.S. 385 (2005) ............................................... 13

Taylor v. United States,

495 U.S. 575 (1990) ............................................... 25

Terry v. United States,

141 S. Ct. 1858 (2021) ........................................... 10

The Adventure,

1 F. Cas. 202, F. Cas. No. 93 (No. 93)

(CC Va. 1812)......................................................... 22

United States v. Albertini,

472 U.S. 675 (1985) ................................................. 7

United States v. Booker,

543 U.S. 220 (2005) ............................................... 19

United States v. Davis,

139 S. Ct. 2319 (2019) ..................................... 22, 23

United States v. Garcon,

54 F.4th 1274 (11th Cir. 2022). ..... …..5, 6, 7, 8, 10,

11, 12, 14, 17, 18, 19, 24, 27

United States v. Gardner,

32 F.4th 504 (6th Cir. 2022) ........................... 16, 18

vi

United States v. Gonzalez-Carmona,

35 F.4th 636 (8th Cir. 2022) ................................. 17

United States v. Granderson,

511 U.S. 39 (1994) ................................................. 25

United States v. Hartwell,

73 U.S. (6 Wall.) 385 (1868) ................................. 24

United States v. Haynes,

55 F.4th 1075, (6th Cir. 2022) .......................... 2, 27

United States v. Jones,

60 F.4th 230 (4th Cir. 2023) .... 9, 11, 12, 17, 18, 26

United States v. Lacher,

134 U.S. 624 (1890) ............................................... 24

United States v. Lopez,

998 F.3d 431 (9th Cir. 2021) ........3, 5, 6, 12, 27, 28

United States v. Lopez,

No. 19-cr-0261,

2019 U.S. Dist. LEXIS 142342

(S.D. Cal. Aug. 21, 2019) ................................ 14, 19

United States v. Mann,

26 F. Cas. 1153 (CC NH 1812) ............................. 22

United States v. Monsanto,

491 U.S. 600 (1989) ................................................. 7

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) .................................. 23

vii

United States v. Owens,

38 F.4th 1 (8th Cir. 2022) ............................... 16, 19

United States v. Pace,

48 F.4th 741 (7th Cir. 2022) ...........7, 10, 11, 14, 26

United States v. Palomares,

52 F.4th 640 (5th Cir. 2022)……3, 5, 6, 8, 9, 12, 15

United States v. Palomar-Santiago,

141 S. Ct. 1615 (2021) ............................................. 8

United States v. Quirante,

486 F.3d 1273 (11th Cir. 2007) ............................ 19

United States v. Santos,

553 U.S. 507 (2008) ......................................... 22, 23

United States v. Wiltberger,

18 U.S. 76, 5 Wheat. 76 (1820)....................... 22, 23

Util. Air Reg. Grp. v. EPA,

573 U.S. 302 (2014) ................................................. 3

Wis. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) ............................................. 5

Wooden v. United States,

142 S. Ct. 1063 (2022) ...................21, 22, 23, 24, 25

Yates v. United States,

574 U.S. 528 (2015) ......................................... 20, 24

viii

Yellen v. Confederated Tribes of the

Chehalis Reservation,

141 S. Ct. 2434 (2021) ..................................... 12, 13

Youngstown Sheet & Tube Co. v.

Sawyer,

343 U.S. 579 (1952) ......................................... 27, 28

Constitution

U.S. Const. Art. I, § 1 ................................................. 23

Statutes

18 U.S.C. § 3553(a) ..................................................... 17

18 U.S.C. § 3553(a)(1)................................................. 17

18 U.S.C. § 3553(a)(2)................................................. 17

18 U.S.C. § 3553(f) .................................................. 2, 16

18 U.S.C. § 3553(f)(1) ............................................. 7, 12

18 U.S.C. § 3553(f)(2) ................................................. 18

18 U.S.C. § 3553(f)(3) ................................................. 18

18 U.S.C. § 3553(f)(4) ................................................. 18

18 U.S.C. § 3553(f)(5) ................................................. 18

28 U.S.C. § 1291 .......................................................... 20

ix

First Step Act, Pub. L. No. 115-391, 132

Stat. 5194 (2018) ............................................... 1, 14

Guidelines Provisions

U.S.S.G. § 4A1.1(b) ..................................................... 12

U.S.S.G. § 5C1.2 .......................................................... 14

Federal Register

88 Fed. Reg. 7,180 (Feb. 2, 2023) .............................. 21

88 Fed. Reg. 28,254 (May 3, 2023) ............................ 14

Rules

Sup. Ct. Rule 37.3 ......................................................... 1

Other Authorities

Amy Coney Barrett, Substantive Canons

and Faithful Agency,

90 B.U. L. Rev. 109 (2010) .................................... 22

Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ..................................... 6, 7, 8, 24

J. Sutherland, Statutes and Statutory

Construction (1891) ............................................... 25

x

John F. Schifalacqua,

A Model for Interpreting Federal

Sentencing Law,

48 N. Ky. L. Rev. 39 (2021) .................................. 16

Merriam-Webster’s Collegiate

Dictionary (11th ed. 2020) ...................................... 6

New Oxford American Dictionary

(3rd ed. 2010) ........................................................... 6

Office of the Legislative Counsel, U.S.

Senate, Senate Legislative Drafting

Manual (1997) ......................................................... 8

Oxford English Dictionary (2d ed. 1989) .................... 6

Shon Hopwood,

Second Looks & Second Chances,

41 Cardozo L. Rev. 83 (2019) ................................. 2

Webster’s Third New International

Dictionary (1967) ..................................................... 6

Webster’s Third New International

Dictionary (1993) ..................................................... 6

William Blackstone, Commentaries ......................... 22

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas are the separation of powers

and constitutionally limited government. As part of

this mission, it appears as amicus curiae before

federal and state courts.

AFPF is part of a coalition of organizations that

advocate for an array of “smart on crime”

improvements to the criminal justice system that

enhance public safety and ensure the protection of

constitutional rights, such as the First Step Act

(“FSA”), Pub. L. No. 115-391,132 Stat. 5194 (2018).

AFPF believes that our criminal justice system must

change so that it can more effectively prevent and

reduce crime while also restoring the lost trust

between communities and the hardworking

individuals employed by the system. Victims deserve

justice, and our communities deserve a justice system

1 Amicus states that no counsel for a party authored this brief in

whole or in part and that no person other than amicus or its

counsel made any monetary contributions intended to fund the

preparation or submission of this brief.

2

that ensures we can all realize our American dream.

AFPF supports the FSA and believes people can

change, and incarcerated persons who do not pose a

danger to public safety and have paid their debt to

society deserve to have a chance to rejoin their

families and communities. After all, “[c]haracter is not

static, people change, and the law must recognize this

reality.” Shon Hopwood, Second Looks & Second

Chances, 41 Cardozo L. Rev. 83, 119 (2019). At the

same time, the FSA’s sentencing provisions allow the

federal judiciary to use discretion on a case-by-case

basis to protect society by ensuring those who pose a

risk to public safety are not granted early release.

AFPF respectfully believes the panel erred by

adding atextual limitations to the safety valve

provision, 18 U.S.C. § 3553(f), as amended by Section

402 of the FSA. More broadly, AFPF generally

opposes mandatory minimums for nonviolent

offenses. Instead, offenders should be sentenced as

individuals on a case-by-case basis.

SUMMARY OF ARGUMENT

This “case presents a basic issue of statutory

interpretation: does ‘and’ mean ‘and’?” United States

v. Haynes, 55 F.4th 1075, 1080 (6th Cir. 2022) (Griffin,

J., dissenting). Respect for the separation of powers

requires the answer to that question must be “yes.”

To be sure, “[t]he First Step Act ‘is far from a chef

d’oeuvre of legislative draftsmanship.’ Congress

certainly could have used more exacting language

when modifying the safety valve in § 3553(f)(1).”

3

United States v. Lopez, 998 F.3d 431, 448 (9th Cir.

2021) (M. Smith, J., concurring in part, dissenting in

part, and concurring in the judgment) (quoting Util.

Air Reg. Grp. v. EPA, 573 U.S. 302, 320 (2014)). But

there is no reasonable dispute that Section 402 of the

FSA was intended to reduce the universe of

defendants convicted of certain nonviolent drug

crimes who are subject to mandatory minimums. The

question is simply one of degree. The statute’s plain

text supplies the answer.

With respect to Section 3553(f)(1)’s eligibility

criteria, this Court should “take Congress at its word:

‘and.’” United States v. Palomares, 52 F.4th 640, 659

(5th Cir. 2022) (Willett, J., dissenting). Because this

provision uses the conjunctive “and,” instead of the

disjunctive “or,” a defendant must have all three

criminal history characteristics to be ineligible for the

safety valve on that basis. Put differently, no single

history characteristic in Section 3553(f)(1), standing

alone, will automatically disqualify a defendant from

safety-valve eligibility. No canon of statutory

interpretation, or combination thereof, can change

Section 3553(f)(1)’s unambiguous text or justify a

transmogrification of the word “and” into “or.” This

holds true regardless of whether this particular

reform, in practical effect, swept more broadly than

Congress had anticipated.

Section 3553(f)(1)’s unambiguous text accords with

the FSA’s sentencing-reform provisions’ structural

emphasis on protecting public safety, while granting

judges the discretion to temper justice with a degree

of mercy in individual cases, when appropriate. The

4

sole function of the safety valve provision is to limit

the automatic imposition of draconian mandatory

minimum sentences for certain nonviolent drug

offenses. And in addition to Section 3553(f)(1), Section

3553(f)

contains

numerous

other

threshold

requirements that must be met as a condition of

eligibility for the broadened safety valve. These

additional requirements operate to screen out the

mine run of offenders for whom relief would not be

appropriate.

At the least, it is difficult to conclude beyond

reasonable doubt that “and” unambiguously means

“or.” Accordingly, any lingering doubts as to Section

3553(f)(1)’s sweep should be resolved in favor of

principles of lenity. Whatever the policy merits,

reading “and” to mean “and” best respects due

process, Congress’s legislative choices, and the

separation of powers. It is not this Court’s role to

rescue Congress from its policy choices as expressed

in the text of enacted legislation. If Congress meant

“or” when it wrote “and,” then Congress is free to

amend the statute.

For these reasons, this Court should reverse the

decision below.

ARGUMENT

I.

Congress Must Be Presumed to Have Said In

Section 402 What It Meant and Meant What

It Said. “And” Means “And.”

“This Court normally interprets a statute in accord

with the ordinary public meaning of its terms at the

5

time of its enactment. After all, only the words on the

page constitute the law adopted by Congress and

approved by the President.” Bostock v. Clayton Cnty.,

140 S. Ct. 1731, 1738 (2020); see also Wis. Cent. Ltd.

v. United States, 138 S. Ct. 2067, 2070 (2018) (“[O]ur

job is to interpret the words consistent with their

‘ordinary meaning . . . at the time Congress enacted

the statute.’” (citation omitted)). “As in all such cases,

. . . [this Court] begin[s] by analyzing the statutory

language, ‘assum[ing] that the ordinary meaning of

that language accurately expresses the legislative

purpose.’” Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242, 251 (2010) (quoting Gross v. FBL

Financial Services, Inc., 557 U.S. 167, 175 (2009)

(internal quotation marks omitted)). “If the words of a

statute are unambiguous, this first step of the

interpretive inquiry is . . . [also the] last.” Rotkiske v.

Klemm, 140 S. Ct. 355, 360 (2019) (citing Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 254 (1992)).

So too here: “and” means “and”; “and” does not

mean “or.” See United States v. Garcon, 54 F.4th 1274,

1277, 1280 (11th Cir. 2022) (en banc) (Pryor, C.J.); see

also Lopez, 998 F.3d at 448 (M. Smith, J., concurring

in part, dissenting in part, and concurring in the

judgment) (“‘And’ means ‘and.’”). “[W]hen ‘and’ is used

to connect a list of requirements, the word ordinarily

has a ‘conjunctive’ sense, meaning that all the

requirements must be met.” Garcon, 54 F.4th at 1278;

see also Palomares, 52 F.4th at 653 (Willett, J.,

dissenting) (“[T]he plain meaning of ‘and’ is

conjunctive.”). Cf. Pet. App. 5a (“The most natural

reading of ‘and’ is conjunctive[.]”).

“Dictionaries and treatises aren’t needed to prove

the point, but they uniformly define ‘and’ this way.”

6

Palomares, 52 F.4th at 653 (Willett, J., dissenting)

(citations omitted). “For the past fifty years,

dictionaries and statutory-construction treatises have

instructed that when the term ‘and’ joins a list of

conditions, it requires not one or the other, but all of

the conditions.” Lopez, 998 F.3d at 436 (citing

Merriam-Webster’s Collegiate Dictionary 46 (11th ed.

2020) (defining “and” to “indicate connection or

addition”); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 116–

20 (2012); New Oxford American Dictionary 57 (3rd

ed. 2010); Oxford English Dictionary 449 (2d ed.

1989); Webster’s Third New Int’l Dictionary 80 (1967)

(defining “and” to mean “along with or together with”

or “as well as”)); see Garcon, 54 F.4th at 1278 (“‘And’

means ‘along with or together with.’” (quoting And,

Webster’s Third New Int’l Dictionary (1993))). Cf. Pet.

App. 5a (similar). That should end the matter. Cf. Alt.

Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267

F.3d 30, 35 (1st Cir. 2001) (“‘And’ is not an ambiguous

term. Although ‘and’ might, in rare circumstances, be

construed to mean ‘or,’ to the ordinary or average

person ‘and’ means ‘and.’” (citation omitted and

emphasis added)). This Court should thus “take

Congress at its word: ‘and.’” Palomares, 52 F.4th at

659 (Willett, J., dissenting).

“Put simply, just as no amount of canon-based

massaging could make ‘white’ mean ‘black’ or ‘up’

mean ‘down,’ none can make the word ‘and’ mean

7

‘or.’”2 Garcon, 54 F.4th at 1290 (Newsom, J.,

concurring). After all, “‘interpretative canon[s are] not

a license for the judiciary to rewrite language enacted

by the legislature.’” United States v. Monsanto, 491

U.S. 600, 611 (1989) (quoting United States v.

Albertini, 472 U.S. 675, 680 (1985)). Instead, as

Justice Thomas has explained:

[C]anons of construction are no more

than rules of thumb that help courts

determine the meaning of legislation,

and in interpreting a statute a court

should always turn first to one, cardinal

canon before all others. We have stated

time and again that courts must

presume that a legislature says in a

statute what it means and means in a

statute what it says there.

Germain, 503 U.S. at 253–54. Here, the statute says

“and.” 18 U.S.C. § 3553(f)(1).

In any event, at least two canons of construction

cut against reading “and” to effectively mean “or.”

Start with the conjunctive/disjunctive canon. Under

this canon, “and combines items while or creates

alternatives.” Scalia & Garner, supra, 116. As a

2 The decision below correctly recognized that “and” is generally

conjunctive but mistakenly read “and” in its distributive, as

opposed to joint, sense. See Pet. App. 5a–6a. This reading

effectively transmogrified “and” into “or.” See United States v.

Pace, 48 F.4th 741, 756 (7th Cir. 2022) (Kirsch, J., concurring) (“I

recognize that in this statute and others like it, a distributive

reading makes ‘and’ interchangeable with a disjunctive ‘or.’”).

8

general matter, “[a]nd joins a conjunctive list, or a

disjunctive list[.]” 3 Id. “After a negative, the

conjunctive and is still conjunctive: Don’t drink and

drive.” Id. at 119; see also Palomares, 52 F.4th at 653

(Willett, J., dissenting) (“‘And’ is still conjunctive

when it follows a negative like ‘not’ or ‘no.’ When a

negative precedes a conjunctive list, ‘the listed things

are individually permitted but cumulatively

prohibited.’” (quoting Scalia & Garner, supra, 119)).

As applied here: “Because the conjunctive ‘and’ joins

together the enumerated characteristics, a defendant

must have all three before he is ineligible for relief.”

Garcon, 54 F.4th at 1276. Cf. United States v.

Palomar-Santiago, 141 S. Ct. 1615, 1620–21 (2021)

(“The requirements are connected by the conjunctive

‘and,’ meaning defendants must meet all three.”).

Next, consider the presumption of consistent

usage. Under this canon, “there is a presumption that

a given term is used to mean the same thing

throughout a statute[.]” Brown v. Gardner, 513 U.S.

115, 118 (1994) (citing Atlantic Cleaners & Dyers, Inc.

v. United States, 286 U.S. 427, 433 (1932)); see also

National Credit Union Admin v. First Nat. Bank &

Trust Co., 522 U.S. 479, 501 (1998) (“[S]imilar

language contained within the same section of a

statute must be accorded a consistent meaning.”)

Cf. Office of the Legislative Counsel, U.S. Senate, Senate

Legislative Drafting Manual, § 302, p. 64 (1997) (“In a list of

criteria that specifies a class of things— (1) use ‘‘or’’ between the

next-to-last criterion and the last criterion to indicate that a

thing is included in the class if it meets 1 or more of the criteria;

and (2) use ‘‘and’’ to indicate that a thing is included in the class

only if it meets all of the criteria.”).

3

9

(citation omitted). “The ‘normal rule of statutory

interpretation’ is that ‘identical words used in

different parts of the same statute are generally

presumed to have the same meaning.’” Bittner v.

United States, 143 S. Ct. 713, 727 (2023) (Gorsuch, J.,

joined by Jackson, J.) (quoting IBP, Inc. v. Alvarez,

546 U.S. 21, 34 (2005)).

Here, “Congress used ‘and’ to join a list of elements

8 times in this very statute. ‘Or’ joins a list of elements

3 times where Congress wanted to produce the

opposite effect. That does not include the countless

other uses of ‘and’ and ‘or’ in the same statute that do

not join a list of elements[.]” Palomares, 52 F.4th at

657 (Willett, J., dissenting). In order to read “and” as

“or,” one “would have to believe that Congress meant

to invoke the plain meaning of these words every time

except in subsection (f)(1).” Id. (Willett, J., dissenting).

That cannot be right.

In short, “[i]f Congress wanted any one of the

criminal history characteristics to disqualify a

defendant, it would have used the word ‘or,’ which it

clearly knows how and when to do as reflected

elsewhere in § 3553(f).” United States v. Jones, 60

F.4th 230, 234 (4th Cir. 2023); see Palomares, 52 F.4th

at 652–53 (Willett, J., dissenting) (“If [Congress]

wished to withhold safety valve relief from defendants

who failed any one of the three sub-sections, it would

have (maybe should have) joined them together with

‘or.’”). It did not.

10

II.

“And” Is Not a Cryptic Synonym for “Or.”

This Court should reject any invitation to edit

Section 3553(f)(1) to replace “and” with “or.” To begin,

as Judge Kozinski put it in a different context:

As a linguistic matter, ‘and’ and ‘or’ are

not synonyms; indeed, they are more

nearly antonyms. One need only start

the day with a breakfast of ham or eggs

to be duly impressed by the difference.

While ‘and’ and ‘or’ are both small words,

and are occasionally seen joined with a

slash, when they stand alone, they have

substantially different meanings with

dramatically different effects.

MacDonald v. Pan Am. World Airways, Inc., 859 F.2d

742, 746 (9th Cir. 1988) (Kozinski, J., dissenting).

That observation resonates here. Cf. Pace, 48 F.4th at

761 (Wood, J., dissenting in part) (“I cannot agree that

the word ‘and’ is so esoteric that judges are unable to

give it its normal meaning. If I order ham and eggs for

breakfast, then I assume that the plate will contain

some ham and some eggs, not just one or the other. . .

. My request, in brief, is conjunctive.”). And it would

“def[y] common parlance to say,” see Terry v. United

States, 141 S. Ct. 1858, 1864 (2021), that Congress

intended that the word “and” meant “or.”

The presumption against surplusage—while “not

without some force,“ Garcon, 54 F.4th at 1274

(Newsom, J., concurring)—cannot justify jettisoning

the word “and’s” plain conjunctive meaning, in the

joint sense, in favor of either reading “and” as “or” or,

alternatively, giving “and” a distributive reading,

11

which would have the same effect. See Pace, 48 F.4th

at 756 (Kirsch, J., concurring). After all, “[t]he canon

against surplusage is not an absolute rule[.]” Marx v.

Gen. Revenue Corp., 568 U.S. 371, 385 (2013). And

“[r]edundancy is not a silver bullet.” Rimini St., Inc.

v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019). This

makes sense because, as a descriptive matter,

“[r]edundancies across statutes are not unusual

events in drafting[.]”Germain, 503 U.S. at 253; see

also Rimini St., 139 S. Ct. at 881(“Sometimes the

better overall reading of the statute contains some

redundancy.”). “The anti-surplusage canon gives

[courts] no license to skirt unambiguous text, and no

canon can make the word ‘and’ in § 3553(f)(1) mean

‘or.’” Garcon, 54 F.4th at 1289 (Newsom, J.,

concurring); see also Jones, 60 F.4th at 237 (“[T]he

presumption against superfluity would not be reason

to rewrite an unambiguous statute.”).

In any event, reading “and” to mean “and” does not

render Section 3553(f)(1)(A) a nullity, as the decision

below mistakenly found. See Pet. Br. 36–41; Pet. App.

6a–7a & n.2. Cf. Husky Int’l Elec’s, Inc. v. Ritz, 578

U.S. 355, 371–73 (2016) (Thomas, J., dissenting). As

Chief Judge Pryor has explained:

To the contrary, there are at least two

circumstances in which a defendant

could have “a prior 2-point violent

offense” and “a prior 3-point offense . . .

under the sentencing guidelines” but

fewer than five “criminal history points.”

Under the sentencing guidelines, a twopoint offense adds no points to the

defendant’s criminal-history score if the

sentence was imposed more than 10

12

years before the defendant commenced

the present offense. Similarly, a threepoint offense does not contribute to the

criminal-history score if the defendant

finished serving the sentence more than

15 years before commencing the present

offense.

Garcon, 54 F.4th at 1281 (citing 18 U.S.C. § 3553(f)(1);

U.S.S.G. § 4A1.1(b) & cmt. n.2); see Jones, 60 F.4th at

239 (“[S]ubsection (A) targets serious recidivists—

those with more than one prior sentence excluding

one-point offenses[.]”); Palomares, 52 F.4th at 655–56

(Willett, J., dissenting). Cf. Lopez, 998 F.3d at 440

(“Subsection (A) is not superfluous under a

conjunctive interpretation; it clarifies that a single

three-point violent offense does not bar a defendant

from safety-valve relief.”).

Nor, for that matter, can the rule against

absurdities justify a judicial rewrite of Section

3553(f)(1).4 As Justice Gorsuch has explained, this

doctrine does not authorize courts to revise statutes

for policy reasons:

Absurdity doctrine does not license

courts to improve statutes (or rules)

substantively, so that their outcomes

accord more closely with what we might

think is the preferred result. At most, it

may serve a linguistic function—

4 In any event, even if it otherwise applied “the absurdity canon

must yield to the rule of lenity.” Palomares, 52 F.4th at 658

(Willett, J., dissenting).

13

capturing circumstances in which a

statute’s apparent meaning is so

unthinkable that any reasonable reader

would immediately (1) know that it

contains a technical or ministerial

mistake, and (2) understand the correct

meaning of the text.5

Yellen v. Confederated Tribes of the Chehalis

Reservation, 141 S. Ct. 2434, 2460 n.14 (2021)

(Gorsuch, J., dissenting) (cleaned up); see also Small

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

dissenting) (“We should employ that canon only

‘where the result of applying the plain language would

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

impossible that Congress could have intended the

result . . . and where the alleged absurdity is so clear

as to be obvious to most anyone.’” (quoting Pub.

Citizen v. United States Dep’t of Justice, 491 U.S. 440,

470–71 (1989) (Kennedy, J., concurring in judgment)).

Plainly, that linguistic function is not implicated

here. Congress’s use of “and” in Section 402 of the

FSA, as codified in 18 U.S.C. § 3553(f)(1), is not a

scrivener’s error, as underscored by Section 402’s

intended effect: reducing the number of defendants

convicted of nonviolent drug crimes who are sentenced

“Anything more would threaten the separation of powers,

undermine fair notice, and risk upsetting hard-earned legislative

compromises.” Confederated Tribes of the Chehalis Reservation,

141 S. Ct. at 2460 n.14 (Gorsuch, J., dissenting).

5

14

to mandatory minimums.6 Section 402’s heading,

Broadening of Existing Safety Valve, see FSA, § 402,

132 Stat. at 5221, underscores Congress’s intent.

Indeed, “[t]he First Step Act was enacted to decrease

the number of criminal defendants subject to

mandatory minimum sentences.” Garcon, 54 F.4th at

1284. “One of the key points and purposes of the First

Step Act is to improve fairness in prison sentences by

permitting courts to depart from the mandatory

minimum under the broadened safety valve criteria

when sentencing low-level, nonviolent drug offenders

who cooperate with law enforcement.” United States

v. Lopez, No. 19-cr-0261, 2019 U.S. Dist. LEXIS

142342, at *18-19 (S.D. Cal. Aug. 21, 2019), aff’d on

other grounds, 998 F.3d 431 (9th Cir. 2021). And that

is exactly what Section 3553(f)(1)’s plain language

accomplishes by narrowing the universe of defendants

who are disqualified from safety-valve eligibility on

the basis of criminal history characteristics. “That

Congress might not have anticipated how broadly its

reforms” in the FSA “would sweep does not make

those reforms absurd.” Garcon, 54 F.4th at 1284.

In sum, “[t]here is nothing irrational, absurd,

superfluous, or otherwise faulty about applying

section 3553(f)(1) straightforwardly, allowing the

word ‘and’ to mean ‘and[.]’” Pace, 48 F.4th at 768

(Wood, J., dissenting). And “the plain, obvious and

6 The Sentencing Commission recently amended U.S.S.G § 5C1.2

“to reflect the statutory changes to section 3553(f) made by the

First Step Act.” 88 Fed. Reg. 28,254, 28,265 (May 3, 2023). The

amendments to § 5C1.2 track Section 3553(f)(1)’s text and use

“and.” See id. at 28,264. The Commission’s amendment would

presumably have corrected any obvious drafting error.

15

rational meaning of a statute is always to be preferred

to any curious, narrow, hidden sense that nothing but

the exigency of a hard case and the ingenuity and

study of an acute and powerful intellect would

discover.” Lynch v. Alworth-Stephens Co., 267 U.S.

364, 370 (1925); see Palomares, 52 F.4th at 658

(Willett, J., dissenting) (“That principle favors

tolerating non-obvious surplusage rather than

ignoring rudimentary grammar.”).

By contrast, courts “give our language, and our

language-dependent legal system, a body blow when

[courts] hold that it is reasonable to read ‘or’ for ‘and.’”

MacDonald, 859 F.2d at 746 (Kozinski, J., dissenting).

For as Judge Willett has observed:

Manufactured ambiguity poses a special

threat to our language’s elemental

particles. How can Congress express its

will if everyday words slip into linguistic

black holes so dense that settled

language rules break down? When

judges say that certain words are

inherently ambiguous, we beget a selffulfilling prophecy. And when we use

complicated semantic bracework to

augment ordinary meaning, we risk

creating a negative feedback loop if

Congress sees the favor as an invitation

rather than a one-off.

Palomares, 52 F.4th at 652 (Willett, J., dissenting).

That observation resonates here, counseling in favor

of enforcing the statute’s plain meaning.

16

III.

Taking Congress At Its Word—“And”—

Allows Judges to Impose Individualized

Sentences that Protect Public Safety, Also

Tempering Justice With Mercy.

The safety-valve provision’s limited purpose and

discretionary nature further underscore the

rationality of reading Section 3553(f)(1)’s criminalhistory-eligibility requirements conjunctively. The

safety valve provision does not operate as a get-out-ofjail-free card but rather allows judges to exercise

discretion in appropriate cases to temper justice with

mercy, treating defendants as individuals. It operates

as a “[l]imitation on applicability of statutory

minimums in certain cases.” 18 U.S.C. § 3553(f).

“Th[is] ‘safety valve’ provision allows the court to

disregard an applicable statutory minimum if it finds

certain criteria.” United States v. Owens, 38 F.4th 1, 3

(8th Cir. 2022) (citing 18 U.S.C. § 3553(f)). It thereby

“functions as a built-in authorization for a trial judge

to exercise discretion based on individualized

circumstances.”7 John F. Schifalacqua, A Model for

Interpreting Federal Sentencing Law, 48 N. Ky. L.

Rev. 39, 81 (2021). But that is all that it does,

empowering judges to impose proportionate, just

sentences, anchored to the Sentencing Guidelines,

“‘From the beginning of the Republic, federal judges were

entrusted with wide sentencing discretion.’” Concepcion v.

United States, 142 S. Ct. 2389, 2398 (2022) (citation omitted); see

also Koon v. United States, 518 U.S. 81, 113 (1996).

7

17

through the familiar rubric of the Section 3553(a)

factors.8

Reading Section 3553(f)(1) as written will thus not

endanger public safety or require the release of

dangerous individuals. “To qualify for safety valve

relief, a defendant must prove the five requirements

in 18 U.S.C. § 3553(f) by a preponderance of the

evidence.” United States v. Gonzalez-Carmona, 35

F.4th 636, 642 (8th Cir. 2022); accord United States v.

Gardner, 32 F.4th 504, 526 (6th Cir. 2022). And “[a]

criminal defendant’s ability to satisfy section

3553(f)(1) does not guarantee that the defendant will

satisfy the four other subsections necessary to qualify

for safety-valve relief. To the contrary, those

subsections will often disqualify defendants the

government considers unworthy of relief.” Garcon, 54

F.4th at 1283 (citing 18 U.S.C. § 3553(f)(2)–(5));

accord Jones, 60 F.4th at 239 (“[E]ven if the defendant

meets all the statutory requirements, application of

8 Section 3553(a) generally instructs courts to “impose a sentence

sufficient, but not greater than necessary[.]” 18 U.S.C. § 3553(a).

To do this, courts must consider, among other things:, “the need

for the sentence imposed—(A) to reflect the seriousness of the

offense, to promote respect for the law, and to provide just

punishment for the offense; (B) to afford adequate deterrence to

criminal conduct; (C) to protect the public from further crimes of

the defendant; and (D) to provide the defendant with needed

educational or vocational training, medical care, or other

correctional treatment in the most effective manner[.]” Id.

§3553(a)(2). These factors reflect the four traditional rationales

for punishment: retribution, deterrence, incapacitation, and

rehabilitation. In addition, courts must also consider “the nature

and circumstances of the offense and the history and

characteristics of the defendant[.]” Id. § 3553(a)(1).

18

the safety valve is left to the sentencing judge’s

discretion. Stated differently, that a defendant with a

lifetime of serious drug offenses is eligible under §

3553(f)(1) does not mean she will obtain safety valve

relief.”).

In addition to the Section 3553(f)(1) criminalhistory eligibility criteria at issue here, a defendant

must show that he “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[.]” 18 U.S.C.

§ 3553(f)(2). The offense also must not have

“result[ed] in death or serious bodily injury to any

person[.]” Id. § 3553(f)(3). And the defendant cannot

be “an organizer, leader, manager, or supervisor of

others in the offense[.]”Id. § 3553(f)(4). Finally, the

defendant must “truthfully provide[] to the

Government all information and evidence the

defendant has concerning the offense or offenses[.]”

Id. § 3553(f)(5); see also Gardner, 32 F.4th at 526

(discussing “tell all” criterion). That is a tall order.

And there is reason to think the rigorous application

of these additional criteria will generally limit the

universe of defendants eligible for safety-valve relief

to lower-level drug offenders who are less likely to

pose a threat to society.

Importantly, even where a defendant does meet all

of Section 3553(f)’s threshold eligibility requirements,

“a judge who has discretion to impose a shorter

sentence, based on the safety-valve provision, may

reasonably choose not to exercise that discretion if

consideration of the defendant’s history counsels

19

against it.”9 Garcon, 54 F.4th at 1284. In other words,

“safety valve eligibility does not guarantee [a

defendant] a below-statutory minimum sentence; it

just gives the court the opportunity to sentence below

the minimum if it believes it is appropriate.” Owens,

38 F.4th at 3. And “a court compelled to disregard a

mandatory minimum sentence in favor of the

guidelines range at the advice-determining stage may

vary upward to and even past the mandatory

minimum point after considering the § 3553(a)

factors—so long as the final sentence is reasonable.”10

United States v. Quirante, 486 F.3d 1273, 1276 (11th

Cir. 2007). This critical check ensures that dangerous

repeat offenders and other undeserving defendants

will not reap an unjust windfall by rote application of

the statute at the expense of public safety.11 See also

Garcon, 54 F.4th at 1307 (Brasher, J., dissenting)

(“[H]ere is my advice for district judges: The Court’s

9 For example, defendants who knowingly traffic large quantities

of fentanyl.

10 To be sure, where the safety-valve provision applies, the

defendant’s sentence must be anchored to the advisory

guidelines range. See Quirante, 486 F.3d at 1275–76. However,

because the Sentencing Guidelines are only advisory, see United

States v. Booker, 543 U.S. 220 (2005), courts can depart or vary

upward or downward from the guidelines range in appropriate

cases so long as the sentence imposed is grounded in the Section

3553(a) factors and reasonable.

11 Of course, there are cases cutting the other way that

underscore why Section 3553(f)(1) should be construed as

written. See, e.g., Lopez, 2019 U.S. Dist. LEXIS 142342, at *19

(“The parties agree that Defendant is a low-level nonviolent drug

offender who has cooperated with law enforcement. His prior

conviction for spray painting a building is over ten years old, yet

he faces a mandatory minimum five-year sentence.”).

20

opinion gives you discretion to sentence offenders with

serious and violent criminal histories to sentences

below the applicable mandatory minimum. But you

shouldn’t do it.”). In addition, if a district court abuses

its discretion under the safety valve by imposing an

unreasonably low sentence, the government may

appeal, ensuring review of the sentence by at least

three additional judges. See 28 U.S.C. § 1291.

Even when the safety valve applies, Guidelines

sentences are often quite lengthy. Cf. Yates v. United

States, 574 U.S. 528, 569 (2015) (Kagan, J.,

dissenting)

(noting

the

problem

of

“overcriminalization and excessive punishment in the

U.S. Code”). Consider this case. At the time he was

sentenced, Mr. Pulsifer was almost 60 years old. See

Pet. App. 38a. Without the safety valve, the applicable

mandatory

minimum

“was

fifteen

years’

12

imprisonment.” Pet. App. 2a (citing 21 U.S.C. §

841(b)(1)(A)(viii)). With the safety valve, Mr.

Pulsifer’s Guidelines range would have been 120 to

150 months, yielding a within-Guidelines sentence of

at least ten years’ imprisonment. See Pet. App. 38a;

Cert. Pet. 24. Even if the district court then granted a

2-level downward variance in light of the FSA, Mr.

Pulsifer would still face almost nine years in prison.

See Cert. Pet. 24 (“Mr. Pulsifer’s Guidelines . . . would

be 100–125 months with a 2-level variance reflecting

the First Step Act.” (citing Pulsifer CA Br. 3, 10-11;

U.S.S.G. §§ 2D1.1(b)(18), 5C1.2; PSR ¶ 130, p. 28)). In

all possible outcomes, Mr. Pulsifer must serve a

12 “[S]tarting with the fifteen-year minimum, the [district] court

made an unrelated reduction under different authority and

sentenced Pulsifer to 162 months’ imprisonment.” Pet. App. 2a.

21

lengthy prison term. But the difference between a

100-month sentence, at the low end, and the

approximately thirteen-year sentence Mr. Pulsifer

received might mean a great deal to him. And those

extra years of warehousing him in a prison at

taxpayer expense would seem to serve little, if any,

societal purpose.

Mr. Pulsifer’s case well illustrates the practical

operation of the safety valve, as well as the stakes of

this case for thousands of defendants.13 And it further

confirms that the best reading of “and” is “and.”

IV.

The Rule of Lenity

Lingering Doubts.

Resolves

Any

To the extent reasonable doubt persists as to the

best reading of” Section 3553(f)(1) after a thorough

statutory investigation applying the traditional tools

of statutory interpretation, “a venerable principle

supplies a way to resolve it.” Bittner, 143 S. Ct. at 724

(Gorsuch, J., joined by Jackson, J.). The rule of lenity

“is a new name for an old idea—the notion that ‘penal

laws should be construed strictly.’” Wooden v. United

13 The Sentencing Commission recently stated: “Using fiscal year

2021 data, Commission analysis estimated that of 17,520 drug

trafficking offenders, 11,866 offenders meet the non-criminal

history requirements of the safety valve (18 U.S.C. § 3553(f)(2)(5)). . . . Under a disjunctive interpretation of the expanded

criminal history provision, 1,987 offenders would become

eligible. The remaining 4,111 offenders would be ineligible. In

comparison, under the Ninth Circuit’s conjunctive interpretation

of the expanded criminal history provision, 5,778 offenders would

become eligible. The remaining 320 offenders would be

ineligible.” 88 Fed. Reg. 7,180, 7,186 (Feb. 2, 2023).

22

States, 142 S. Ct. 1063, 1082 (2022) (Gorsuch, J.,

joined by Sotomayor, J., concurring in judgment)

(quoting The Adventure, 1 F. Cas. 202, 204, F. Cas. No.

93 (No. 93) (CC Va. 1812) (Marshall, C.J.)); see also

Cargill v. Garland, 57 F.4th 447, 473 (5th Cir. 2023)

(en banc) (Ho, J., concurring in part and concurring in

judgment) (“Under the rule of lenity, ‘[p]enal statutes

must be construed strictly.’” (quoting 1 William

Blackstone, Commentaries *88).

“It is a principle grown hoary in age and wisdom,

that penal statutes are to be construed strictly, and

criminal statutes to be examined with a favorable

regard to the accused.” United States v. Mann, 26 F.

Cas. 1153, 1157 (CC NH 1812); see also Amy Coney

Barrett, Substantive Canons and Faithful Agency, 90

B.U. L. Rev. 109, 128–29 (2010). Indeed, “[t]hat rule

is ‘perhaps not much less old than’ the task of

statutory ‘construction itself.’” United States v. Davis,

139 S. Ct. 2319, 2333 (2019) (quoting United States v.

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

(Marshall, C. J.)).

“In the hands of judges in this country, . . . lenity

came to serve distinctively American functions—a

means for upholding the Constitution’s commitments

to due process and the separation of powers.” Wooden,

142 S. Ct. at 1082 (Gorsuch, J., concurring in

judgment). As Justice Scalia explained: “This

venerable rule not only vindicates the fundamental

principle that no citizen should be held accountable

for a violation of a statute whose commands are

uncertain or subjected to punishment that is not

clearly prescribed. It also places the weight of inertia

upon the party that can best induce Congress to speak

more clearly and keeps courts from making criminal

23

law in Congress’s stead.” United States v. Santos, 553

U.S. 507, 514 (2008). For as Chief Justice Marshall

wrote: “[T]he power of punishment is vested in the

legislative, not in the judicial department. It is the

legislature, not the Court, which is to define a crime,

and ordain its punishment.” Wiltberger, 18 U.S. (5

Wheat.) at 95; see U.S. Const. Art. I, § 1 (“All

legislative Powers herein granted shall be vested in a

Congress[.]”). “[P]erhaps most importantly, the rule of

lenity serves our nation’s strong preference for

liberty.” United States v. Nasir, 17 F.4th 459, 473 (3d

Cir. 2021) (en banc) (Bibas, J, concurring).

To be sure, “[t]he rule applies only when, after

consulting

traditional

canons

of

statutory

construction,” the Court finds it is “left with an

ambiguous statute.” Shular v. United States, 140 S.

Ct. 779, 787 (2020) (internal quotation marks and

citation omitted). But “[w]here the traditional tools

of statutory interpretation yield no clear answer, the

judge’s next step isn’t to legislative history or the

law’s unexpressed purposes. The next step is to

lenity.”14 Wooden, 142 S. Ct. at 1085–86 (Gorsuch, J.,

concurring in judgment). Cf. Wiltberger, 18 U.S. (5

Wheat.) at 105 (“[P]robability is not a guide which a

court, in construing a penal statute, can safely take.”).

Under the rule of lenity, “ambiguities about the

breadth of a criminal statute should be resolved in the

defendant’s favor.” Davis, 139 S. Ct. at 2333; see also

14 Section 3553(f)’s legislative history is irrelevant. “[L]egislative

history is not the law,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1631 (2018), and would be trumped by the rule of lenity in any

event, see Hughey v. United States, 495 U.S. 411, 422 (1990).

24

Yates, 574 U.S. at 547; United States v. Lacher, 134

U.S. 624, 628 (1890) (“[B]efore a man can be punished,

his case must be plainly and unmistakably within the

statute.”). This means that “all reasonable doubts

concerning its meaning ought to operate in favor of

the” defendant.15 Harrison v. Vose, 50 U.S. (9 How.)

372, 378 (1850) (emphasis added); see also Scalia &

Garner, supra, 299 (“The criterion we favor [for

whether lenity applies] is this: whether, after all

legitimate tools of interpretation have been applied, ‘a

reasonable doubt persists.’” (citing Moskal v. United

States, 498 U.S. 103, 108 (1990) (per Marshall, J.)). Cf.

Abramski v. United States, 573 U.S. 169, 204 (2014)

(Scalia, J., dissenting) (lenity applies when

application of traditional “tools do not decisively

dispel the statute’s ambiguity”). In other words, the

words of the statute “must be such as to leave no room

for a reasonable doubt upon the subject.” United

States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868).

15 The panel below appeared to think that the rule of lenity only

applies in the face of “grievous ambiguity.” See Pet. App. 9a. This

Court should reject that cramped reading and instead make clear

that lenity applies when, after application of the traditional tools

of statutory interpretation, reasonable doubts as to a penal

statute’s sweep persist. See Wooden, 142 S. Ct. at 1083–86

(Gorsuch, J., concurring in judgment); see also id. at 186 n.10

(Gorsuch, J., concurring in judgment) (“Historically, lenity

applied to all ‘penal’ laws—that is, laws inflicting any form of

punishment, including ones we might now consider ‘civil’

forfeitures or fines.”). In any event, to the extent “and” could

plausibly be read either conjunctively (“and”) or disjunctively

(“or”), Section 402 would trigger lenity even under the “grievous

ambiguity” formulation of the rule. Cf. Garcon, 54 F.4th at 1285–

86 (Rosenbaum, J., concurring) (concluding lenity applies under

grievous ambiguity formulation of rule).

25

“Nineteenth century treatises . . . put the point this

way: ‘[I]f there is such an ambiguity in a penal

statute as to leave reasonable doubts of its meaning,

it is the duty of a court not to inflict the penalty.’”

Wooden, 142 S. Ct. at 1084 (Gorsuch, J., concurring in

judgment) (quoting J. Sutherland, Statutes and

Statutory Construction § 353, p. 444 (1891)).

“[T]his principle of statutory construction applies

not only to interpretations of the substantive ambit of

criminal prohibitions, but also to the penalties they

impose.” Bifulco v. United States, 447 U.S. 381, 387

(1980); see, e.g., United States v. Granderson, 511 U.S.

39, 56–57 (1994); see Taylor v. United States, 495 U.S.

575, 596 (1990) (suggesting “sentencing provisions[]

are to be construed in favor of the accused”). “Under

the rule of lenity, this Court has long held, statutes

imposing penalties are to be ‘construed strictly’

against the government and in favor of individuals.”

Bittner, 143 S. Ct. at 724 (Gorsuch, J.) (quoting

Commissioner v. Acker, 361 U.S. 87, 91 (1959)). The

rule of lenity thus applies with full force to Section

3553(f)(1), to the extent it contains ambiguities

unresolvable

even

after

a

full

statutory

16

investigation.

16 “Doubtless, lenity carries its costs. . . . But, as the framers

appreciated, any other course risks rendering a selfgoverning people ‘slaves to their magistrates,’ with their liberties

dependent on ‘the private opinions of the judge.’” Wooden, 142 S.

Ct. at 1083 (Gorsuch, J., concurring in judgment) (quoting 4

Blackstone 371 (1769)).

26

V.

It is Not the Province of This Court to

Rescue Congress From Its Policy Choices.

Construing Section 3553(f)(1)’s requirements

conjunctively respects the separation of powers, even

if it might seem counterintuitive or unwise as a

matter of public policy. “[W]hether or not this is a

prudent policy choice is not for the judiciary to decide:

that determination lies solely with the legislative

branch.” Jones, 60 F.4th at 239. “Congress is the

master of the statutes it passes[.]” Pace, 48 F.4th at

768 (Wood, J., dissenting). And as former Chief

Justice Earl Warren has observed, courts “are bound

to operate within the framework of the words chosen

by Congress and not to question the wisdom of the

latter in the process of construction.” Richards v.

United States, 369 U.S. 1, 10 (1962) (Warren, C.J.). Cf.

Anderson v. Wilson, 289 U.S. 20, 27 (1933) (Cardozo,

J.) (“We do not pause to consider whether a statute

differently conceived and framed would yield results

more consonant with fairness and reason. We take the

statute as we find it.”).

“Judges are not free to overlook plain statutory

commands on the strength of nothing more than

suppositions about intentions or guesswork about

expectations.” Bostock, 140 S. Ct. at 1754; see also

Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992)

(Scalia, J.) (“The question . . . is not what Congress

‘would have wanted’ but what Congress enacted.”). As

this Court has explained: “If Congress enacted into

law something different from what it intended, then it

should amend the statute to conform it to its intent. .

. . This allows both of our branches to adhere to our

respected, and respective, constitutional roles.” Lamie

v. United States Tr., 540 U.S. 526, 542 (2004).

27

Accordingly, this Court should not “ignore

Congress’s plain and unambiguous language just

because a statute might reach further than some in

Congress expected.” Lopez, 998 F.3d at 444. And this

Court should reject the government’s invitation to

magically transform “and” into “or” for what it is:

“simply a request for a swap of policy preferences.” Id.

at 440. Cf. Haynes, 55 F.4th at 1085 (Griffin, J.,

dissenting) (“[T]he majority’s acceptance of the

government’s interpretation is no more than doing

what it says it is not: ‘conflat[ing] plausibility with our

own sense of good policy.’”). For as Judge Newsom has

warned: “Were we to engage in interpretive

gymnastics to make § 3553(f)(1) say what it

objectively, demonstrably, verifiably does not say—in

essence, to save Congress from itself—we would do

the separation of powers, and democracy itself, a

profound disservice.” Garcon, 54 F.4th at 1290

(Newsom, J., concurring).

It may well be that, as a matter of sentencing

policy, interpreting “and” according to its ordinary

public meaning sweeps too broadly; alternatively,

adopting an “or” reading may be underinclusive. But

it is not this Court’s role to play Goldilocks, editing the

statute until it is just right. Cf. Concepcion, 142 S. Ct.

at 2407 (Kavanaugh, J., dissenting) (“Perhaps the

Court’s decision represents better sentencing policy.

Perhaps not. But under the Constitution’s separation

of powers, this Court may not simply rewrite the First

Step Act as the Court thinks best.”). To the contrary,

“[t]he Constitution anticipates, though it does not

require, constructive exchanges between Congress

and the federal courts.” Oklahoma v. United States, 62

F.4th 221, 225 (6th Cir. 2023) (citing Youngstown

28

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)

(Jackson,

J.,

concurring))

(explaining

that

“interdependence”

and

“reciprocity”

should

characterize the relationship between the branches as

much as “separateness” and “autonomy”). “If Congress

meant § 3553(f)(1)’s ‘and’ to mean ‘or,’ it has the

authority to amend the statute accordingly.” Lopez,

998 F.3d at 444. But unless and until Congress

chooses to do so, this Court should read Section

3553(f)(1) as written.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment of the court of appeals.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

May 26, 2023