In United States v. Garcon, No. 19-14650 (Dec. 6, 2022), the en banc Court–in an opinion authored by Chief Judge Pryor–considered whether, in the First Step Act, the word “and” means “and” with regard to a grant of safety-valve relief.  More specifically, the en banc Court considered the language of 18 U.S.C. § 3553(f)(1), which empowers a court to grant a criminal defendant relief from a mandatory minimum sentence only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.”

The Majority–in an opinion drafted by Chief Judge Pryor and joined in full by Judges Wilson, Jill Pryor, Newsom, Luck, and Lagoa–after considering the text of the statute and applying the ordinary-meaning canon, held that because the conjunctive “and” joins together the enumerated criminal history characteristics in (A)-(C), a defendant must have all three before he is ineligible for safety-valve relief.  In so holding, the Majority specifically rejected the government’s distributive reading of the word “and,” declining “to adopt that novel reading when it appears to have been crafted by the government specifically for this statute to achieve its preferred outcome.”

Judge Rosenbaum concurred in the judgment only, noting that she would have resolved the issue by applying the rule of lenity.

Judge Newsom, joined by Judge Lagoa, filed a separate concurrence to note that no canon of construction can make the word “and” mean “or” because the text is unambiguous.  If Congress made a mistake, it should exercise its authority to amend the statute; “Article III doesn’t empower [the Court] to do Congress’s job for it.”

Judge Jordan dissented, explaining that, depending on the context, the word “and” can be read disjunctively in legal texts.  He also set out the views of the Senators who proposed the provision that became § 3553(f)(1) as further support.

Judge Branch, joined in full by Judges Grant and Brasher, and in part by Judge Jordan, dissented.  She noted the circuit split on this issue before reasoning that the Majority’s interpretation was contrary to the structure and context of the statute, and created two surplusage problems–first, it renders an entire subsection, (f)(1)(A), redundant; and second, it disregards Congress’s plain instruction that all pertinent statutory determinations for purposes of § 3553(f)(1) are to be made “as determined under the sentencing guidelines.”  After consideration of context and structural cues, in her opinion, the best reading of § 3553(f)(1) is that it bars safety-valve relief for defendants who have any one of the enumerated criminal history characteristics in (A)-(C).

Judge Brasher authored a separate dissent to comment on criminal-history-based sentencing and to “give some advice to district judges about how to deal with the majority’s decision.”