Published on: Monday, November 7, 2022

Drug defendant pleaded guilty to possessing with intent to distribute heroin, faciing a 10-year mandatory minimum sentence despite a minor criminal history which may make her eligible for safety valve.

In a textualist vs. textualist Safety Valve Showdown in the Fifth Circuit: Under the First Step Act, drug offenders with sufficiently mild criminal histories can escape mandatory minimums. The precise wording is that a defendant is eligible only if "the defendant does not have—(A) more than four criminal history points [with an exception]; (B) a prior 3-point offense … , and (C) a prior 2-point violent offense." But wait just a minute. Does that mean "does not have (A), does not have (B), and does not have (C)"? Or does it mean "does not have all of (A) and (B) and (C)"? Because a defendant with just (B) really wants to know. Which textualist will decide this issue? Each judge wrote separately..

There is circuit split on the issue. The Ninth Circuit rejected the distributive reading of the safety-valve provision, while the Eight Circuit said the phrase “does not have” distributes across each condition and the Seventh Circuit said the statute is to be read disjunctively, the Fifth Circuit said. The Eleventh Circuit is currently deciding the issue en banc.

The statute’s structure is “perplexing,” the Fifth Circuit said. But it agreed with the Eighth Circuit that use of the em-dash following “does not have” is best interpreted to distribute that phrase to each following subsection. Thus, the court held iIn their ordinary uses, “and” is conjunctive and “or” is disjunctive.

Dissent: interchanging “and” and “or” is “a mistake.” “Manufactured ambiguity” poses a threat to statutory interpretation.

The case is United States v. Palomares, 21-40247 (5th Cir. Nov. 2, 2022).