North Carolina Lawyers Weekly
The First Step Act allows a district court to reject a 10-year mandatory minimum sentence for a defendant convicted of possession with intent to distribute 50 or more grams of methamphetamine if, among other things, “the defendant does not have—(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines[.]” 18 U.S.C. § 3553(f)(1). Although the defendant herein had more than four criminal history points, the plain language of the statute allowed the district court to apply the safety valve provision because defendant did not have a prior three-point offense or a prior two-point violent offense.
We affirm defendant’s 100-month sentence.
We agree with the district court that a defendant must have all three criminal history characteristics to be ineligible for relief. The word “and” is conjunctive, not – as the government argues – disjunctive. The government’s argument is nothing more than an exaggerated way of saying “and” means “or.”
The meaning of “and” does not change simply because it is preceded by a negative marker. When a conjunctive list is used to explain a prohibition, the listed things are individually permitted but cumulatively prohibited.
For example, if someone says, “Don’t drink and drive,” he doesn’t mean that you shouldn’t drink and that you shouldn’t drive, but only that you shouldn’t do both at the same time. The same logic applies to a conjunctive negative proof such as § 3553(f)(1). If a statute states that “[t]o be eligible, you must prove that you have not A, B, and C,” a person can do one (or even two) of the listed items and not transgress the prohibition. Only by doing all three things is a person rendered ineligible. On the other hand, if a statute states that “[t]o be eligible, you must prove that you have not A, B, or C,” a person must have done none of the listed things.
Applying these straightforward principles to § 3553(f)(1), we conclude that a defendant is ineligible for safety valve relief only if she has all three criminal history characteristics. That is, a defendant must not have the combination of (A) more than four criminal history points, (B) a three-point offense, and (C) a two-point violent offense. This conclusion follows directly from § 3553(f)(1)’s plain and unambiguous language.
If 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). Because Congress instead chose to join the listed characteristics with “and,” we must conclude that a defendant is ineligible for safety valve relief under § 3553(f)(1) only if she has all three criminal history characteristics.
The government says that it agrees that “and” is used conjunctively in § 3553(f)(1), but because “Congress placed an em-dash after the prefatory phrase [‘does not have’], introduced each requirement with an enumerating letter (A, B, C), and separated the requirements with semicolons,” the phrase “does not have” modifies each of the criminal history requirements. Essentially, the government contends that § 3553(f)(1) requires the sentencing court to find that the defendant 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. We decline the government’s invitation to inject absent words into § 3553(f)(1) and reject that interpretation. Again, it is really no more than an elaborate way of saying that “and” means “or.”
If Congress wanted the government’s suggested outcome, it would have used “or” instead of relying on an ill-defined em-dash to alter the meaning of “and.” Further, the government offers no proof except its own speculation that Congress was embracing its em-dash theory for this subsection—and only this subsection—of the statute. We therefore reject the government’s argument.
Given the statute’s unambiguous language, we also reject the government’s arguments as to superfluidity and absurdity.
Affirmed.
United States v. Jones (Lawyers Weekly No. 001-023-23, 18 pp.) (Steven Agee, J.) No. 21-4605. Appealed from USDC at Charlotte, N.C. (Max Cogburn, J.) Amy Elizabeth Ray and Dena King for appellant; Joshua Carpenter and John Baker for appellee. 4th Cir.
