RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0271p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AARON M. HAYNES,

Defendant-Appellant.

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No. 22-5132

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.

No. 3:19-cr-00207-4—Thomas A. Varlan, District Judge.

Argued: October 20, 2022

Decided and Filed: December 19, 2022

Before: BATCHELDER, GRIFFIN, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Rachel L. Wolf, Knoxville, Tennessee, for Appellant. Francesco Valentini, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

ON BRIEF: Rachel L. Wolf, Knoxville, Tennessee, for Appellant. Francesco Valentini, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Brent Nelson Jones, 

UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER, J., joined. 

GRIFFIN, J. (pp. 8–16), delivered a separate dissenting opinion.

>
No. 22-5132 United States v. Haynes Page 2

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. Aaron Haynes argues that the district court misinterpreted 

18 U.S.C. § 3553(f)(1) when it denied him “safety valve” relief from his mandatory-minimum 

sentence. We agree with the district court’s interpretation of the statute and affirm.

I.

In 2018, Aaron Haynes began dealing drugs as part of a larger drug-trafficking 

conspiracy near Knoxville, Tennessee. About a year later a federal grand jury indicted him on 

drug charges. In April 2020, Haynes pled guilty to conspiring to possess with intent to distribute 

40 grams or more of fentanyl and 100 grams or more of heroin, in violation of 21 U.S.C. §§ 846 

and 841(a)(1), (b)(1)(B). 

The quantity of drugs to which Haynes pled made him subject to a mandatory-minimum 

sentence of five years. See 21 U.S.C. § 841(b)(1)(B). At sentencing, however, Haynes argued 

that he was eligible for so-called “safety-valve” relief under 18 U.S.C. § 3553(f). That provision 

allows a district court to impose a sentence below an otherwise-applicable mandatory minimum 

if the defendant meets certain requirements. See 18 U.S.C. § 3553(f)(1)-(5). The district court 

held that Haynes had not met those requirements—specifically, the one enumerated in 

§ 3553(f)(1)(B)—because he had a prior conviction for which he was assigned three points under 

the Sentencing Guidelines. 

At sentencing, the government separately moved to afford Haynes a different kind of 

relief from the mandatory-minimum sentence, based on his “substantial assistance” in 

prosecuting other members of the conspiracy. 18 U.S.C. § 3553(e). The court granted that 

motion and sentenced Haynes to 32 months’ imprisonment. In doing so, however, the court 

expressly considered Haynes’s ineligibility for safety-valve relief under § 3553(f) as a factor 

favoring a longer sentence. This appeal followed.
No. 22-5132 United States v. Haynes Page 3

II.

We review the court’s interpretation of 18 U.S.C. § 3553(f)(1) de novo. See United 

States v. Miller, 734 F.3d 530, 539 (6th Cir. 2013). 

Section 3553(f)(1) provides in relevant part:

(f) the court shall impose a sentence . . . without regard to any statutory minimum 

sentence, if the court finds at sentencing . . . that—

(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 under the sentencing 

guidelines; and 

(C) a prior 2-point violent offense, as determined under the 

sentencing guidelines[.]1

1Section 3553(f) reads in its entirety as follows:

(f) Limitation on Applicability of Statutory Minimums in Certain Cases.—Notwithstanding any other 

provision of law, . . . the court shall impose a sentence pursuant to guidelines . . . without regard to any 

statutory minimum sentence, if the court finds at sentencing . . . that—

(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 under the sentencing guidelines; and 

(C) a prior 2-point violent offense, as determined under the sentencing guidelines; 

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other 

dangerous weapon (or induce another participant to do so) in connection with the offense; 

(3) the offense did not result in death or serious bodily injury to any person; 

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as 

determined under the sentencing guidelines and was not engaged in a continuing criminal 

enterprise, as defined in section 408 of the Controlled Substances Act; and 

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the 

Government all information and evidence the defendant has concerning the offense or offenses 

that were part of the same course of conduct or of a common scheme or plan, but the fact that the 

defendant has no relevant or useful other information to provide or that the Government is already 

aware of the information shall not preclude a determination by the court that the defendant has 

complied with this requirement.

Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the 

defendant unless the information relates to a violent offense.
No. 22-5132 United States v. Haynes Page 4

The question presented is whether—as the government argues and the district court 

held—this provision requires the defendant to show that he has none of the criminal history 

described in subsections (A)-(C); or whether instead—as Haynes argues—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)(B).

It turns out that “and” has more meanings than one might suppose. By way of 

background, grammatical rules are an archetype of rules of conduct with which we often comply 

without conscious awareness of doing so. Small children comply with any number of 

grammatical rules without awareness even of their existence; and adults comply with rules 

concerning the pluperfect and subjunctive tenses, for example, without consciously knowing 

what those rules are. We likewise understand language according to these same grammatical 

rules, again often without awareness of their existence. Thus, a particular grammatical rule 

might strike us as impossibly esoteric, and yet shape our understanding of language every day. 

The task of determining the ordinary meaning of a word or phrase, therefore, is sometimes one of 

excavating—and taking conscious account of—rules as to which our compliance is often 

unconscious.

For all but seasoned grammarians, such is the case here. Everyone agrees that, as used in 

§ 3553(f)(1), the word “and” is conjunctive rather than disjunctive. The relevant grammatical 

rule is that, “[w]hen used as a conjunctive, the word ‘and’ has ‘a distributive (or several) sense as 

well as a joint sense.’” United States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022) (quoting 

Garner’s Dictionary of Legal Usage 639 (3d ed. 2011)). The specific question here is which 

sense of “and”—distributive or joint—is used in § 3553(f)(1)(B).

Judge Rogers has provided an excellent illustration of the distributive and joint senses of 

“and.” Suppose a host asks two guests what they like to drink. One guest answers “bourbon and 

water”; the other, “beer and wine.” For both answers the distributive and joint senses of the 

word “and” are grammatically sound. But the guest who likes “bourbon and water” will 

probably be disappointed if the host hands her a glass of water alone. That is because her answer 

very likely uses “and” in the joint sense, meaning she likes bourbon and water together. Yet the 
No. 22-5132 United States v. Haynes Page 5

latter guest will likely be revolted if the host hands him a glass of Budweiser and Bordeaux 

combined; for his answer very likely uses “and” in the distributive (or several) sense, meaning 

“I like beer and I like wine.” See OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 

2005) (Rogers, J., dissenting); see also, e.g., R. Huddleston & G. Pullum, The Cambridge 

Grammar of the English Language, ch. 15, § 1.3, pp. 1280-82 (2002). No rule of construction 

tells the host which meaning each guest intends; yet virtually no one would say that either 

answer is ambiguous. That is simply because of the content of each answer: for the bourbonand-water answer, as a matter of common sense or experience, the joint sense of “and” is more 

plausible than the distributive; and for the beer-and-wine answer, the opposite is true.

Here, the situation is similar. As a grammatical matter, § 3553(f)(1) could require, as 

Haynes argues, that the “defendant does not have” “more than 4 criminal history points” and “a 

prior 3-point offense” and “a prior 2-point violent offense” together in his criminal record—

which would be the joint sense of the word “and.” Thus, on that reading, a defendant is eligible 

for safety-valve relief if his record lacks any of those things. Or, as the government argues, 

§ 3553(f)(1) could use the word “and” in the distributive sense, so that “and” serves as a 

shorthand for repeating (or “distributing”) the prefatory clause before each of the subsections 

that follows. Thus, on that reading, a defendant is eligible for safety-valve relief only if the 

defendant does not have “more than 4 criminal history points” and the defendant does not have 

“a prior 3-point offense” and the defendant does not have “a prior 2-point violent offense[.]” 

Both meanings are grammatically sound. Moreover—with one important exception, 

discussed below—no rule of construction strongly favors one meaning over the other. Consider, 

for example, the presumption that “identical words used in different parts of the same act are 

intended to have the same meaning.” Utility Air Regulatory Group v. EPA, 573 U.S. 302, 319 

(2014) (cleaned up). That rule is useless here because (as Judge Rogers’s example illustrates) 

one can toggle between the joint and distributive senses of “and” in close proximity to each 

other. In this respect, the word “and” is simply different from the more specialized words to 

which that presumption is typically applied.

The reality is that—as with Judge Rogers’s example—the respective content of each 

proposed meaning of § 3553(f)(1) shows that one sense of the word “and” is more plausible than 
No. 22-5132 United States v. Haynes Page 6

the other. In making that judgment, of course, we must be careful not to conflate plausibility 

with our own sense of good policy. The interpretive question, rather, is how the words of 

§ 3553(f)(1) would be understood by an ordinary reader. And—whatever the underlying policy 

reflected in each interpretation—an ordinary reader would favor a logically coherent 

interpretation over a seemingly arbitrary one.

Here, the government’s interpretation of § 3553(f)(1) is logically coherent. Again by 

way of background, when § 3553(f)(1) was first enacted in 1994, it provided that any defendant 

with “more than one criminal history point” was ineligible for safety-valve relief. See 18 U.S.C. 

§ 3553(f)(1) (1994). Congress amended § 3553(f)(1) in the First Step Act of 2018 to read as it 

does now. Under the government’s interpretation—for a defendant to obtain relief from an 

otherwise mandatory-minimum sentence—the defendant must not have any of three 

disqualifying conditions in his criminal record: first, “more than 4 criminal history points,” itself 

a fourfold increase over the prior cap; second, a prior offense serious enough to add three points 

to his criminal record; and third, a prior 2-point “violent offense[.]” Each of those conditions on 

its face is quite plausibly an independent ground to deny a defendant the extraordinary relief 

afforded by the safety valve—which means this reading is logically coherent.

The same is not true of Haynes’s interpretation, which would require that all these 

conditions be present for a defendant to be ineligible for safety-valve relief. Consider, for 

example, a defendant with 25 criminal history points, generated in part by six convictions for 

assault with a deadly weapon and six convictions for domestic assault. (Both can be two-point 

violent offenses. See, e.g., United States v. Delgado-Hernandez, 646 F.3d 562, 564 (8th Cir. 

2011).) Under Haynes’s interpretation, this defendant would qualify for safety-valve relief 

because of the fortuity that his criminal record lacks “a prior 3-point offense[.]” 18 U.S.C. 

§ 3553(f)(1)(B). Or consider an incorrigible recidivist with, say, 24 criminal-history points, 

comprising a half-dozen convictions for robbery and two convictions for possession of 

explosives with intent to terrorize. (Both are often three-point offenses. See, e.g., United States 

v. Henderson, 209 F.3d 614, 616 (6th Cir. 2000); United States v. Priest, 447 F. App’x 682, 684 

(6th Cir. 2011).) This defendant too would be eligible for safety-valve relief, for want of a prior 

two-point violent offense. Results like these appear arbitrary enough to be implausible—which 
No. 22-5132 United States v. Haynes Page 7

makes Haynes’s interpretation akin to an interpretation of beer-and-wine in the joint sense rather 

than the distributive one. Haynes does offer a thoughtful response: namely that the district court 

serves as a gatekeeper in cases where § 3553(f)(1) generates results as bizarre as these. But an 

ordinary reader would expect that § 3553(f)(1) itself would serve as a gatekeeper—and not an 

arbitrary one. That indeed is the whole point of the provision. The government’s reading of 

§ 3553(f)(1) is therefore better than Haynes’s reading.

That conclusion is confirmed by a rule of statutory construction, namely the “cardinal 

principle” that courts “must give effect, if possible, to every clause and word of a statute.” 

Williams v. Taylor, 529 U.S. 362, 404 (2000). We agree with the Eighth Circuit that, of the 

interpretations on offer here, “[o]nly the distributive interpretation avoids surplusage.” Pulsifer, 

39 F.4th at 1022. A defendant with “a prior 2-point violent offense” and “a prior 3-point 

offense” by definition would have “more than 4 criminal history points”—meaning that, under 

Haynes’s interpretation, § 3553(f)(1)(A) would lack any practical effect. Haynes responds that a 

defendant might have a prior 2-point violent offense or 3-point offense that is too old to count 

toward his criminal-history points. See U.S.S.G. § 4A1.2(e) (providing that certain prior 

sentences imposed more than ten or fifteen years before the current offense do not count toward 

the defendant’s criminal history). But § 3553(f)(1) refers only to “prior 3-point” and “prior 2-

point violent” offenses “as determined under the sentencing guidelines”—which means all the 

Guidelines, including § 4A1.2(e). And a prior offense that counts for zero points under that 

guideline is not a “3-point” or “2-point” offense “as determined under the sentencing 

guidelines[.]” 18 U.S.C. § 3553(f)(1)(B), (C). The district court was correct to find Haynes 

ineligible for safety-valve relief.

* * *

The district court’s judgment is affirmed.
No. 22-5132 United States v. Haynes Page 8

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting.

Today’s case presents a basic issue of statutory interpretation: does “and” mean “and”? 

This issue arises in the context of 18 U.S.C. § 3553(f)’s “safety valve” provision, which provides 

that a defendant is ineligible for relief from a mandatory-minimum sentence if he has “more than 

4 criminal history points,” “a prior 3-point offense, . . . and,” “a prior 2-point violent offense.” 

§ 3553(f)(1)(A)–(C) (emphasis added). The majority’s conclusion, though couched in other 

terms, is that “and” means “or” in this context. Because I conclude that “and” should indeed 

mean “and,” I respectfully dissent.

I.

As amended by the First Step Act of 2018, § 3553(f) provides that a district court “shall 

impose a sentence . . . without regard to any statutory minimum sentence, if the court finds” that 

the defendant meets five requirements:

(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 under the sentencing guidelines; 

and

(C) a prior 2-point violent offense, as determined under the sentencing 

guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a 

firearm or other dangerous weapon (or induce another participant to do so) in 

connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in 

the offense, as determined under the sentencing guidelines and was not engaged 

in a continuing criminal enterprise, as defined in section 408 of the Controlled 

Substances Act; and
No. 22-5132 United States v. Haynes Page 9

(5) not later than the time of the sentencing hearing, the defendant has truthfully 

provided to the Government all information and evidence the defendant has 

concerning the offense or offenses that were part of the same course of conduct or 

of a common scheme or plan, but the fact that the defendant has no relevant or 

useful other information to provide or that the Government is already aware of the 

information shall not preclude a determination by the court that the defendant has 

complied with this requirement.

18 U.S.C. § 3553(f) (emphasis added).

The requirements in subsection (f)(1) are the basis of the dispute before us. It is 

undisputed that defendant Aaron Haynes has a 3-point felony conviction on his record, but 

neither a 2-point offense nor more than 4 criminal history points. Thus, whether the list in 

subsection (f)(1) is conjunctive or disjunctive, distributive or joint, is dispositive—Haynes 

prevails if the list is conjunctive, but he loses if it is disjunctive (or distributive). 

Fortunately, we are not the first court to consider this issue, nor (hopefully) will we be the 

last—whether one is eligible for safety-value relief is now largely a function of geography. 

I agree with the Eleventh Circuit’s en banc opinion in United States v. Garcon, — F.4th —, 2022 

WL 17479829 (11th Cir. 2022) (en banc), with the conclusion reached by the Ninth Circuit in 

United States v. Lopez, 998 F.3d 431 (9th Cir. 2021), and with other dissenting colleagues in the 

Fifth and Seventh Circuits, namely Judge Willett in United States v. Palomares, 52 F.4th 640, 

652–59 (5th Cir. 2022), and Judge Wood in United States v. Pace, 48 F.4th 741, 759–68 (7th Cir. 

2022). Their interpretation—that § 3553(f)(1)’s “and” is truly conjunctive—harmonizes most 

canons of statutory interpretation and gives effect to the language Congress used. 

In discerning the ordinary meaning of “and,” we have recognized that it generally 

requires a conjunctive reading. “[D]ictionary definitions, legal usage guides and case law 

compel us to start from the premise that ‘and’ usually does not mean ‘or’”; rather it 

“presumptively should be read in its ‘ordinary’ conjunctive sense unless the ‘context’ in which 

the term is used or ‘other provisions of the statute’ dictate a contrary interpretation.” OfficeMax, 

Inc. v. United States, 428 F.3d 583, 588–89 (6th Cir. 2005) (citations omitted). This indicates 

that the “and” here presumptively joins the three requirements together. But how? Reading Law 

provides the answer: “Under the conjunctive/disjunctive canon, and combines items while or 
No. 22-5132 United States v. Haynes Page 10

creates alternatives.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts, 

116 (Thompson/West 2012). Here, the statute is not a normal list (i.e., you must have A, B, 

and/or C) or even a basic prohibition (i.e., you must not do A, B, and/or C), but rather a negative 

proof (i.e., you must have not A, B, and/or C). See id. at 116–21. When a negative proof 

employs the word “and,” it is conjunctive; thus, “you must prove that you did not do all three.” 

Id. at 120 (emphasis added). This is contrasted with the disjunctive negative proof where the 

defendant “must have done none” of the prohibitions. Id. Therefore, the ordinary meaning of 

“and” is that it requires the defendant to have done “all three” of the requirements in § 3553(f)(1) 

to be excluded from consideration. 

“Context confirms this reading.” Garcon, — F.4th at —, 2022 WL 17479829, at *3. 

Applying the ordinary reading of “and” in this context draws support from the canon of 

consistent usage. “Similar language contained within the same section of a statute must be 

accorded a consistent meaning.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 

U.S. 479, 501 (1998). Subsection (f) has two lists of criteria joined together by “and.” One is 

the list in subsection (f)(1) that is the focus of our dispute; the other is in the broader list in 

subsection (f) itself. The canon of consistent usage explains that the two “ands,” in the same 

section, nonetheless, should be accorded a consistent meaning. See id.; see also Mohasco Corp. 

v. Silver, 447 U.S. 807, 826 (1980) (rejecting a particular interpretation of statute because “we 

cannot accept respondent’s position without unreasonably giving the word ‘filed’ two different 

meanings in the same section of the statute” (emphasis added)). Here, no one disputes that the 

broader list in subsection (f) is a conjunctive one—a defendant must satisfy each one of these 

criteria to be eligible for safety valve relief. Thus, it makes logical sense that the “and” in 

subsection (f)(1) be interpreted in the same conjunctive manner as “and” in subsection (f)—

doing otherwise creates discord within the same section.

The thrust of the government’s response to these arguments is that requiring “and” to 

truly mean “and” would result in § 3553(f)(1)(A) being surplusage. “[O]ne of the most basic 

interpretive canons,” the presumption against surplusage means that a “statute should be 

construed so that effect is given to all its provisions, so that no part will be inoperative or 

superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (citations 
No. 22-5132 United States v. Haynes Page 11

omitted). This argument is intuitive: three plus two is five, which is always more than four. 

And the Supreme Court has recognized that we are “often compelled to construe ‘or’ as meaning 

‘and,’ and again ‘and’ as meaning ‘or.’” United States v. Fisk, 70 U.S. 445, 447 (1865). It has 

also formed the basis for most decisions on this issue in the government’s favor. See, e.g., 

Palomares, 52 F.4th at 644–47; Pace, 48 F.4th at 754; United States v. Pulsifer, 39 F.4th 1018, 

1021–22 (8th Cir. 2022). 

Determining whether subpart (A) has meaning, and what that meaning is, requires first 

determining exactly what subparts (B) and (C) require. Subpart (B) requires a defendant not to 

have “a prior 3-point offense, as determined under the sentencing guidelines” and subpart (C) 

similarly requires him or her not to have “a prior 2-point violent offense, as determined under the 

sentencing guidelines.” These two sections, per their own terms, focus on a prior “offense.” 

This is different from subsection (A), which focuses on “criminal history points.” Because these 

terms are materially different, “the presumption is that the different term denotes a different 

idea.” Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783, 1789 (2022) (quoting Reading Law, 

170). 

Next, both (B) and (C) incorporate the Guidelines, which provide the following 

calculations: 

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and 

one month.

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not 

counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 

points for this subsection.

(d) Add 2 points if the defendant committed the instant offense while under any 

criminal justice sentence, including probation, parole, supervised release, 

imprisonment, work release, or escape status.

(e) Add 1 point for each prior sentence resulting from a conviction of a crime of 

violence that did not receive any points under (a), (b), or (c) above because such 

sentence was treated as a single sentence, up to a total of 3 points for this 

subsection.
No. 22-5132 United States v. Haynes Page 12

U.S.S.G. § 4A1.1. However, not all offenses that a defendant has ever committed will be used to 

assess criminal history points. Section 4A1.2 lays out certain exclusions or limitations on 

assessing points. For example, subsection (c) explains that “all felony offenses are counted,” but 

others for misdemeanor and petty crimes are not. U.S.S.G. § 4A1.2(c). There are time 

limitations too. Felonies (i.e., crimes with a sentence of a year and a month) are counted if the 

defendant committed the offense, or served any part of a resulting sentence, within 15 years of 

the instant offense. U.S.S.G. § 4A1.2(e)(1). Other sentences have a 10-year limit, and “[a]ny 

prior sentence not within the time periods specified above is not counted.” U.S.S.G. 

§ 4A1.2(e)(2)–(3). The same section also exempts sentences imposed by certain courts—for 

example, sentences resulting from a juvenile “diversionary disposition,” a “summary court 

martial,” a “foreign conviction[],” a “tribal court conviction[],” and an “expunged conviction[]” 

are not counted. U.S.S.G. § 4A1.2(f)–(j). 

Considering the Guidelines reveals that interpretations of subparts (B) and (C) exist that 

would give effect to all § 3553(f)’s provisions, such that “no part will be inoperative or 

superfluous, void or insignificant.” Corley, 556 U.S. at 314. Subparts (B) and (C) focus on 

criminal offenses, while subpart (A) focuses on criminal history points. All three direct the 

reader to determine this “under the sentencing guidelines.” Under § 4A1.1, points are assessed 

for offenses which carry certain sentence lengths, but under § 4A1.2, some of these points do not 

count towards a defendant’s criminal history points. Thus, a defendant may have committed a 2-

or 3-point offense without that offense being used to calculate criminal history points. Judge 

Wood cogently outlined several examples of when this could occur:

• A defendant who finished serving a sentence for a two-point violent 

offense 11 years ago, thus satisfying subpart (C), and who has a more recent 

three-point nonviolent offense (satisfying (B)), would not satisfy (A). His 

“criminal history points . . . as determined under the sentencing guidelines” would 

be three, because the guidelines instruct that two-point or lower sentences older 

than 10 years should not be included in the criminal history points calculation. 

See Id. §§ 4A1.2(e)(2), (3).

• Similarly, a defendant who finished serving a sentence for a three-point 

offense 21 years ago (satisfying (B)) and a two-point violent offense last year 

(satisfying (C)), would not satisfy (A). His “criminal history points . . . as 

determined under the sentencing guidelines” would be two, because the 
No. 22-5132 United States v. Haynes Page 13

guidelines instruct that no sentence older than 15 years should be included in the 

calculation. See Id. §§ 4A1.2 (e)(1), (3).

• To the same effect, a defendant who committed a three-point offense (satisfying 

(B)), and a two-point violent offense adjudicated by a tribal court (satisfying (C)), would 

not satisfy (A). His “criminal history points . . . as determined under the sentencing 

guidelines” would be three because the guidelines instruct that points resulting from tribal 

court convictions be excluded. See Id. § 4A1.2(i).

Pace, 48 F.4th at 763–64 (Wood, J., dissenting). And, as the Eleventh Circuit explained, a single 

offense could result in multiple sentences for separate crimes, but the Guidelines treat those 

offenses as a single sentence for scoring points. See Garcon, — F.4th at —, 2022 WL 

17479829, at *6. As these examples demonstrate, circumstances exist where a defendant’s 

record contains a particular offense that would normally carry with it a point assessment, but that 

offense is not counted as part of the defendant’s criminal points. So a defendant may have on his 

or her record a 2-point offense and a 3-point offense but still have less than 4 criminal history 

points. In this interpretation, subpart (A) is not surplusage.

This interpretation harmonizes all three canons and, thus, should carry the day. First, it 

gives effect to the plain meaning of the words chosen by Congress. “And” means “and” in its 

normal conjunctive sense, and both “points” in subpart (A) and “offense” in subparts (B) and (C) 

are given their separate meanings. Second, it allows “and” to have a consistent usage throughout 

subsection (f)—the lists in subsection (f)(1)(A) and (f)(1) are both conjunctive. And third, it 

avoids surplusage because subparts (A), (B), and (C) still have independent functions. Subpart 

(A) ensures that a defendant does not have too many criminal history points, while subparts (B) 

and (C) ensure that a defendant has not committed both felony and non-felony offenses. 

Together, this excludes defendants from safety-valve consideration if they have committed too 

many types of offenses. And, as Judge Willett reasoned, a counter-interpretation runs afoul of 

these canons in other ways, such as by failing to read “and” out of § 3553(f)(1) entirely or failing 

to give consistent effect to other times Congress used “and” and “or” in § 3553. See Palomares, 

52 F.4th at 656–58 (Willett, J., dissenting). Consequently, this interpretation is preferrable as it 

provides the most logically coherent interpretation of the statute and the canons we use to 

interpret it.
No. 22-5132 United States v. Haynes Page 14

II.

The majority disagrees. It concludes that the list is conjunctive, yet also distributive. To 

reach this conclusion, the majority relies on context to conclude that the only “logically 

coherent” interpretation of the statute is the one advanced by the government—the defendant 

must not have each individual prohibition. But the majority’s interpretation relies on a host of 

interpretive problems to reach its conclusion.

For one, the majority ignores the plain language of the statute, concluding instead that 

“and” is conjunctive but also distributive by relying on the “content” of the lists at issue. But the 

ordinary meaning of the word “and” is that it usually joins elements together. See And, MerriamWebster Dictionary Online, https://www.merriam-webster.com/dictionary/and (last accessed 

December 1, 2022) (defining “and” as “used to join sentence elements of the same grammatical 

rank or function”). The majority explains this normal meaning away, stating that “and” can have 

“a distributive (or several) sense as well as a joint sense” based purely on the “content” of the list 

at issue. See Pulsifer, 39 F.4th at 1021 (quoting Garner’s Dictionary of Legal Usage 639 (3d ed. 

2011)). True, “and” may sometimes have a distributive sense, but that is not its normal, usual 

meaning, largely because a conjunctive-yet-distributive sense of “and” transforms it into “or.” 

See Garcon, — F.4th at —, 2022 WL 17479829, at *4 (“Essentially, the government[’s 

argument] invites us to read ‘and’ to mean ‘or.’”). And “[w]e give our language, and our 

language-dependent legal system, a body blow when we hold that it is reasonable to read ‘or’ for 

‘and.’” Garner’s Dictionary of Legal Usage 56 (citation omitted). While § 3553(f) is not a 

masterpiece of draftsmanship, Congress used the words that it did, and we must apply those 

terms as written.

According to the majority opinion, the purported “content” indicating a distributive sense 

of “and” is that Haynes’s interpretation is not “logically coherent” because it would allow 

“incorrigible recidivist[s]” to be eligible for safety valve relief. But there is nothing incoherent, 

arbitrary, or absurd in excluding only those defendants who have both a 2- and 3-point offense 

from safety-valve relief. As described in Lopez, the statute exempts defendants from 

consideration if they have too many types of recent offenses. See 998 F.3d at 439. “Congress 

could have made a policy decision that the safety valve should focus more on the defendant’s 
No. 22-5132 United States v. Haynes Page 15

instant offense rather than the defendant’s prior criminal history.” Id. The majority’s description 

to the contrary ignores § 3553(f) as a whole, for other provisions of the statute exclude violent 

offenders from safety-valve consideration. See § 3553(f)(2)–(3). Further, the entire subsection, 

not just § 3553(f)(1), is the “gatekeeper” for safety-valve relief, meaning that this interpretation 

is far from “arbitrary.” The statute says what it says, and its “content” supports Haynes’s 

interpretation. Because of this, the majority’s acceptance of the government’s interpretation is 

no more than doing what it says it is not: “conflat[ing] plausibility with our own sense of good 

policy.” Cf. Lopez, 998 F.3d at 440 (“The government’s request . . . is simply a request for a 

swap of policy preferences.”).

Finally, even if § 3553(f)(1)(A) were surplusage, that should not change our conclusion. 

Despite the majority’s notation to the contrary, rules of construction do strongly favor one 

reading over another. As described above, “and” should mean “and” given the canons of 

ordinary meaning and consistent usage—they support reading “and” as conjunctive given that 

subsection (f) is a conjunctive list. Plus, surplusage is far from being forbidden: “[r]edundancies 

across statutes are not unusual events in drafting,” Marx v. Gen. Revenue Corp., 568 U.S. 371, 

385 (2013) (citations omitted), and, as such, “a court may well prefer ordinary meaning to an 

unusual meaning that will avoid surplusage,” Reading Law, 174. See also Lopez, 998 F.3d at 

445–46 (Smith, J., concurring) (concluding that § 3553(f)(1)(A) is surplusage yet that subsection 

(f)(1) is still conjunctive). Therefore, ample logic exists that supports Haynes’s interpretation of 

the statue, even if subsection (f)(1)(A) were surplusage. Thus, the purported “logical 

consistency” in the government’s argument is no more than a fallacy as “[t]he anti-surplusage 

canon gives us no license to skirt unambiguous text.” Garcon, — F.4th at —, 2022 WL 

17479829, at *12 (Newsom, J., concurring).

III.

In summary, “[t]here is nothing irrational, absurd, superfluous, or otherwise faulty about 

applying section 3553(f)(1) straightforwardly, allowing the word ‘and’ to mean ‘and,’ and 

observing the distinctions drawn in the Sentencing Guidelines between offenses and the number 

of criminal history points that are countable.” Pace, 48 F.4th at 768 (Wood, J., dissenting). 

“If [Congress] wished to withhold safety valve relief from defendants who failed any one of the 
No. 22-5132 United States v. Haynes Page 16

three sub-sections, it would have (maybe should have) joined them together with ‘or.’” 

Palomares, 52 F.4th at 652–53 (Willett, J., dissenting). In other words, “‘[a]nd’ means ‘and.’” 

Garcon, — F.4th at —, 2022 WL 17479829, at *2. Thus, I respectfully dissent.