The First Step Act of 2018 amended 18 U.S.C. § 3553(f)(1) to broaden substantially the eligibility criteria for “safety valve” relief. Previously, a defendant was ineligible for “safety valve” relief if he or she had more than 1 criminal history points. The First Step Act expanded the eligibility criteria and made a defendant eligible for safety valve relief if he had (A) “more than 4 criminal history points” excluding those resulting from a 1-point offense; (B) a prior 3-point offense; and (C) a prior 2-point violent offense.
A circuit split has developed centered upon the meaning of “and” in the amended statute. In other words, the question is whether, as the Sixth Circuit has described in United States v. Haynes, No. 22-5132 (6th Cir., December 19, 2022), “whether … this provision requires the defendant to show that he has none of the criminal history described in subsections (A) – (C); or whether instead … the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1).”
The Sixth Circuit ruled in Haynes that “and” doesn’t mean “and” but means “or,” as described in the dissenting opinion of Judge Richard Griffin, a jurist not known for seeing anything in favor of a criminal defendant. The Sixth Circuit joins the Eighth Circuit, United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022), Seventh Circuit, United States v. Pace, 48 F.4th 741 (7th Cir. 2022), and, of course, the Fifth Circuit, United States v. Palomares, 52 F.4th 640 (5th Cir. 2022), in that holding.
On the opposite side of the fence and holding that “and” means “and” is the en banc Eleventh Circuit, United States v. Garcon, __ F.4th ___ (11th Cir., Dec. 6, 2022)(en banc), and the Ninth Circuit, United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The en banc Eleventh Circuit, in an opinion authored by Tulane Law School grad and Chief Judge William J. Pryor, described the question presented as “whether, in the First Step Act, the word ‘and’ means ‘and.’”
This issue, given this circuit split, seems destined for the Supreme Court, where the plain language reading followed by the Eleventh and Ninth Circuits will likely carry the day.
Comments