In Pulsifer v. United States, the Supreme Court examined the criteria for a defendant to qualify for the “safety-valve” under Title 18, United States Code, Section 3553(f)(1), most recently revised under the First Step Act. Justice Kagan, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett, wrote the opinion for the majority. The question before the Court was “how to understand the criminal history requirement” of the statute.

The Controlled Substances Act (CSA), codified in Title 21 of the United States Code, creates a blanket prohibition for the distribution, possession with the intent to distribute, and manufacture of controlled substances and their analogues, though it also creates a limited exception for medical practitioners with a DEA registration number who prescribe for a legitimate medical purpose. The CSA also imposes statutory minimum and maximum  terms of incarceration on a defendant, upon conviction, for violations involving methamphetamine and cocaine. The statutory minimums are based on the weight and purity of the drug at issue and the number of prior serious drug convictions. For instance, the CSA imposes a term of imprisonment of not less than ten years and not more than life upon conviction for distributing fifty grams or more of methamphetamine. The minimum term of imprisonment increases under the CSA to not less than fifteen years when the defendant has a prior conviction for a serious drug felony or a crime of violence. However, 18 U.S.C. § 3553(f) sets out bases that relieve the sentencing court from the statutory minimums. Germane is § 3553(f)(1), which is based on a defendant’s criminal history as decided under the rubric of the Federal Sentencing Guidelines.

Mark E. Pulsifer, the petitioner, entered a plea of guilty to distributing fifty grams or more of methamphetamine. Under the CSA, Pulsifer faced a statutory minimum of not less than fifteen years. Pulsifer had two prior 3-point convictions under the sentencing guidelines. At sentencing, Pulsifer argued that he qualified for the safety-valve because his prior convictions were not all disqualifying. The United States argued that Pulsifer did not qualify for the safety-valve because one of his prior convictions was disqualifying under § 3553(f)(1). The Court’s opinion, and that of the dissent, are examples of classic statutory interpretation.

The Court began with the language of the statute. A district court is relieved of sentencing the defendant to the statutory minimum when: 

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 by the sentencing guidelines; and
C) A prior 2-point violent offense, as determined by the sentencing guidelines.

 The crux of Pulsifer’s argument was that the safety-valve applies unless a defendant has all the disqualifying criminal history types under A, B, and C because Congress used the conjunctive “and.” Interestingly, the government did not dispute that Congress used “and” in the conjunctive. It argued that A, B, and C constitute items on a checklist of disqualifying prior criminal cases, and that a sentencing court must impose the statutory minimum when a defendant’s prior criminal history checks the box for A, B, or C. The Court agreed that both readings of the statute are plausible based on the text alone, saying, “the answer may lie in considering the paragraph text in its legal context.”

The Court determined that, within the context of the larger statute, the government’s interpretation of the safety-valve was correct. The Court rejected Pulsifer’s reading of the statute because among other things it created two problems. First, it made paragraph A superfluous because if a defendant has a 3-point offense under B and a 2-point offense under C, he automatically has more than four criminal history points to qualify under A. Consequently, A has no function. To avoid this logic, Pulsifer claimed that a prior conviction for which the guidelines do not assign a point for the purpose of determining a defendant’s criminal history category may still satisfy the requirement of subsection A. The Court found the problem with this argument to be that only prior convictions to which the guidelines assign criminal history points can meet the criteria of A, B, and C, pursuant to the plain language of the statute.

Secondly, and perhaps more importantly, Pulsifer’s reading of the statute was inconsistent with well-established principles of assessing criminal culpability and just punishment. Under Pulsifer’s theory, a defendant who had committed a violent crime still qualified for the safety valve because he did not check all the boxes—a perverse result. Recidivism, seriousness of past offenses, and violence are key concepts in sentencing, and the Court recognized them as such. The government’s “checklist” argument was consistent with these traditional sentencing principles while also doing justice to the statutory text.

The dissent, written by Justice Gorsuch and joined by Justices Sotomayor and Jackson, took the opposite position on every meaningful issue. The dissent started its analysis with the purpose of the First Step Act and then moved to statutory interpretation. The dissent found “and” to be both conjunctive and combining of the criteria in subsection (f)(1). Indeed, it relied on Congress’ ability to write statutes to clearly express intent and believed that, if Congress meant the statute to be a checklist, it would have replaced “and” with “or.” The dissent also rejected the notion that the context was dispositive as the majority said. It embraced superfluity as a useful tool of statutory interpretation, accepting Pulsifer’s argument that prior convictions that do not count for deciding criminal history categories may still qualify under A and that, as such, it is not superfluous. And it gave no credit to the government’s policy argument about sentencing principles.

On display in Pulsifer are powerful arguments about statutory construction supporting opposite conclusions. The result for a defendant facing a statutory minimum is that a conviction that meets A, B, or C confounds the application of the safety-valve. For legal writers and scholars, the Pulsifer opinions are notable examples of persuasive and powerful arguments based on statutory interpretation.

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