by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held that a defendant must satisfy all three subsections of the First Step Act, 18 U.S.C. § 3553(f)(1) in order to be ineligible for “safety valve” sentencing relief.

Julian Garcon pleaded guilty to one count of attempting to possess 500 grams or more of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. His offense carried a statutory minimum of five years’ imprisonment.

At sentencing, Garcon requested application of the “safety valve” provided for in § 3553(f), which provides that for certain crimes – including Garcon’s crime of conviction – the sentencing court “shall impose a sentence pursuant to [the U.S. Sentencing] [G]uidelines ... without regard to any statutory minimum sentence, if the court finds at sentencing” that the defendant satisfies each of the five numbered subsections. § 3553(f)(1)-(5).

While both Garcon and the Government agreed that he satisfied the requirements of subsections 3553(f)(2)-(5), the Government argued that Garcon’s prior 3-point offense made him ineligible under 3553(f)(1)(B). Garcon countered that he must meet the requirements of § 3553(f)(1)(A), (B), and (C) in order to be ineligible. The U.S. District Court for the Southern District of Florida sided with Garcon, applied the safety valve, and sentenced him to 36 months.

The Government appealed, and a panel of the Eleventh Circuit disagreed with the District Court, vacated, and remanded, reasoning that the word “and” in subsection (f)(1) actually means “or.” United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021). The Eleventh Circuit subsequently voted to vacate the panel’s opinion and rehear the appeal en banc. United States v. Garcon, 23 F.4th 1334 (11th Cir. 2022).

The Court observed that its analysis of this issue must begin with the text of the statute. See Ross v. Blake, 578 U.S. 632 (2016). The Court’s interpretation of the text is guided by the “ordinary-meaning canon, ‘the most fundamental semantic rule of interpretation.’” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, § 6 (2012) (“Scalia and Garner”). Under that canon of statutory interpretation, the Court stated that its duty “is to interpret the words consistent with their ordinary meaning at the time Congress enacted the statute,” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018), “unless the context in which the word[s] appear” suggests a different meaning. Taniguchi v. Kan. Pac. Saipan, Ltd., 566 U.S. 560 (2012).

The Court noted that the determinative issue under review in this case is whether the word “and” in § 3553(f)(1) is conjunctive or disjunctive. Section 3553(f)(1)(A) - (C) provides that safety valve relief shall be applied if:

(1) the defendant does not have –

(A) more than 4 criminal history points, excluding any criminal history points 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 parties are in agreement that the “and” is conjunctive with respect to subsections (f)(1) through (f)(5), meaning the defendant must satisfy each of the subsections of the overall list of conditions in order for the safe harbor to apply, according to the Court. That means the parties agree the “and” in subsection (f)(4) is conjunctive. Consequently, the presumption of consistent usage instructs that the “and” has the same meaning when used in subsection (f)(1) as it does in subsection (f)(4), the Court explained. See Brown v. Gardner, 513 U.S. 115 (1994) (explaining that the “presumption that a given term is used to mean the same thing throughout a statute” is “at its most vigorous when a term is repeated within a given sentence”).

Another component of the presumption of consistent usage is the rule that “a material variation in terms suggests a variation in meaning.” Scalia & Garner. When Congress intended for conditions to be disjunctive in § 3553(f), it used the word “or,” the Court explained. For example, “or” is used in § 3553(f)(2), and it is clearly disjunctive in that subsection. 

The Court also pointed to the Senate’s legislative drafting manual to support the interpretation that “and” is conjunctive in § 3553(f)(1). It instructs drafters of legislation on proper usage and that “and” is conjunctive and “or” is disjunctive. Senate Off. of the Legis. Couns., Legis. Drafting Manual § 302(a) (1997). See United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (the “Senate’s own legislative drafting manual tells us that ‘and’ is used as a conjunctive in statutes structured like [§] 3553(f)(1)”). Thus, the Court concluded that “and” is conjunctive in § 3553(f)(1) and “joins together the enumerated characteristics” within that subsection, so “a defendant must” satisfy § 3553(f)(1)(A), (B), and (C) “before he is ineligible for relief.” Because Garcon satisfied only one of the conditions, he is eligible for safe-harbor relief, the Court held.

Accordingly, the Court affirmed the judgment of the District Court. See: United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc). 

Writer’s note: The Court also provides an in-depth discussion of the “absurdity doctrine” in statutory interpretation, which allows a court to “depart from the literal meaning of an unambiguous statute … where a rational Congress could not conceivably have intended the literal meaning to apply.” Vachon v. Travelers Home & Marine Ins. Co., 20 F.4th 1343 (11th Cir. 2021) (Pryor, C.J. concurring). Anyone with a particular interest in statutory interpretation will likely find the discussion interesting.