[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14650

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

versus

JULIAN GARCON, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:19-cr-80081-JIC-1

____________________

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 1 of 85
19-14650 Opinion of the Court 2

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, 

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, 

and BRASHER, Circuit Judges.

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, 

in which WILSON, JILL PRYOR, NEWSOM, LUCK, and LAGOA, Circuit 

Judges, join.

ROSENBAUM, Circuit Judge, filed an opinion concurring in the 

judgment.

NEWSOM, Circuit Judge, filed a concurring opinion, in which 

LAGOA, Circuit Judge, joins.

JORDAN, Circuit Judge, filed a dissenting opinion.

BRANCH, Circuit Judge, filed a dissenting opinion, in which GRANT 

and BRASHER, Circuit Judges, join, and JORDAN, Circuit Judge, joins 

as to Part I, II, III.A, and III.B.

BRASHER, Circuit Judge, filed a dissenting opinion.

WILLIAM PRYOR, Chief Judge:

The question presented in this appeal of a grant of safetyvalve relief is whether, in the First Step Act, the word “and” means 

“and.” The Act empowers a court to grant a criminal defendant 

relief from a mandatory minimum sentence, but that relief is 

available 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.” 18 U.S.C. § 3553(f)(1) (emphasis 

added). Julian Garcon, who pleaded guilty to attempting to possess 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 2 of 85
19-14650 Opinion of the Court 3

500 grams or more of cocaine with intent to distribute, has a prior 

3-point offense but does not have more than 4 criminal history 

points or a prior 2-point violent offense. The district court 

concluded that Garcon remained eligible for relief under the Act 

because he did not have all three characteristics. We agree. Because 

the conjunctive “and” joins together the enumerated 

characteristics, a defendant must have all three before he is 

ineligible for relief. We affirm.

I. BACKGROUND 

Julian Garcon was indicted in 2019 for attempting to possess 

500 grams or more of cocaine with intent to distribute. See 21 

U.S.C. §§ 841(a), 846. The offense carried a statutory minimum 

sentence of five years’ imprisonment. See id. § 841(b)(1)(B)(ii). 

Garcon pleaded guilty. 

At sentencing, Garcon asked the district court to apply the 

so-called “safety valve” of the First Step Act, 18 U.S.C. § 3553(f). 

Section 3553(f) provides that, for certain crimes, including the 

crime Garcon committed, the sentencing court “shall impose a 

sentence pursuant to [the United States Sentencing] [G]uidelines 

. . . without regard to any statutory minimum sentence, if the court 

finds at sentencing” that the defendant satisfies each of five 

numbered subsections. See id. § 3553(f)(1)–(5). The first 

subsection—the requirement in dispute here—provides as follows:

(1) the defendant does not have—

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 3 of 85
19-14650 Opinion of the Court 4

(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[.]

Id. § 3553(f)(1). 

Garcon has a prior 3-point offense, and the parties disagreed 

about whether that prior offense disqualified Garcon from 

receiving safety-valve relief. Garcon argued that the use of the 

conjunctive “and” to join the subsections, see id. § 3553(f)(1)(B), 

meant that he would be ineligible for relief only if he had more than 

4 criminal history points, a prior 3-point offense, and a prior 2-point 

violent offense. And because he does not have a prior 2-point 

violent offense or more than 4 criminal history points, Garcon 

argued that he remained eligible for safety-valve relief. The 

government took the opposite view, arguing that Garcon was 

ineligible because, “if any of th[e] three [subsections] apply, . . . the 

defendant doesn’t qualify for the safety valve . . . .” (Emphasis 

added.) 

The district court agreed with Garcon. It ruled that “[t]he 

plain meaning of the statute requires all three subsections of 

[section] 3553(f)(1) to be met before the defendant becomes 

ineligible for [the] safety valve.” To hold otherwise, the district 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 4 of 85
19-14650 Opinion of the Court 5

court explained, would require it to replace the word “and” with 

the word “or.” And although it considered the “result” “absurd” 

and the legislative history supportive of the government’s reading, 

the district court explained that those considerations did not alter 

its analysis because “[t]he statute, as written, is unambiguous.” So, 

the district court applied the safety valve, calculated the applicable 

guidelines range, and imposed a sentence of 36 months’ 

imprisonment. 

A panel of this Court disagreed. United States v. Garcon, 997 

F.3d 1301 (11th Cir. 2021). The panel reasoned that the word “and” 

in subsection (f)(1) means “or.” See id. at 1305. We voted to vacate 

the panel opinion and to rehear the appeal en banc. United States 

v. Garcon, 23 F.4th 1334 (11th Cir. 2022).

II. STANDARD OF REVIEW 

“We review de novo questions of statutory interpretation.” 

United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).

III. DISCUSSION 

We divide our discussion in two parts. We first explain why 

Garcon was eligible for safety-valve relief despite his prior 3-point 

offense. We then reject the government’s arguments to the 

contrary.

A. “And” Means “And.” 

We begin, as we must, with the text of the statute. See Ross 

v. Blake, 136 S. Ct. 1850, 1856 (2016). And we are guided in our 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 5 of 85
19-14650 Opinion of the Court 6

interpretation of the text by the ordinary-meaning canon, “the 

most fundamental semantic rule of interpretation.” ANTONIN 

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION 

OF LEGAL TEXTS § 6, at 69 (2012). The command of the canon is

simple: “our job is to interpret the words consistent with their 

ordinary meaning at the time Congress enacted the statute,” Wis. 

Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (alteration 

adopted) (internal quotation marks omitted), “unless the context in 

which the word[s] appear[]” suggests some other meaning, 

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012).

The parties’ dispute turns on the meaning of the word “and” 

in section 3553(f)(1), so we consider the ordinary meaning of that 

word. “And” means “along with or together with.” And, 

WEBSTER’S THIRD NEW INT’L DICTIONARY (1993). So when “and” is 

used to connect a list of requirements, the word ordinarily has a 

“conjunctive” sense, meaning that all the requirements must be 

met. See United States v. Palomar-Santiago, 141 S. Ct. 1615, 1620–

21 (2021). For example, if a statute provides, “You must do A, B, 

and C,” it is not enough to do only A, only B, or only C; “all three 

things are required”—A, together with B, together with C. See 

SCALIA & GARNER, supra, § 12, at 116. 

The word “and” retains its conjunctive sense when a list of 

requirements follows a negative. See id. § 12, at 119. Consider the 

prohibition, “You must not drink and drive.” To comply, a person 

may do either activity by itself but may not do both. Id.; see also 

United States v. Palomares, 52 F.4th 640, 653 (5th Cir. 2022) 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 6 of 85
19-14650 Opinion of the Court 7

(Willett, J., dissenting). Similarly, consider the command, “You 

must not do A, B, and C.” A person violates that prohibition only 

by doing all three prohibited acts—by doing A, together with B, 

together with C. See SCALIA & GARNER, supra, § 12, at 119. A 

person who does only A, only B, or only C is in the clear.

Applying these principles to section 3553(f)(1), Garcon’s 

prior 3-point offense does not disqualify him from safety-valve 

relief. Section 3553(f)(1) begins with a negative—“the defendant 

does not have”—and the three requirements that follow are joined 

by an “and.” See 18 U.S.C. § 3553(f)(1). So a defendant runs afoul 

of the provision and loses eligibility for relief only if all three 

conditions in subsections (A) through (C) are satisfied. That is, to 

lose eligibility for relief, a defendant must have “more than 4 

criminal history points, excluding any . . . 1-point offense,” 

together with “a prior 3-point offense,” together with “a prior 2-

point violent offense.” See id. Because Garcon has a prior 3-point 

offense but does not have 4 criminal history points (excluding any 

1-point offense), or a prior 2-point violent offense, he is eligible for 

safety-valve relief.

Context confirms this reading. Ordinarily, we presume that 

“identical words used in different parts of the same act are intended 

to have the same meaning.” Util. Air Regul. Grp. v. Env’t Prot. 

Agency, 573 U.S. 302, 319 (2014) (internal quotation marks 

omitted). The five numbered subsections of section 3553(f) are 

joined by the word “and” in subsection (f)(4):

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 7 of 85
19-14650 Opinion of the Court 8

[T]he court shall impose a sentence pursuant to [the] 

guidelines . . . 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 . . . 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 . . . 

and was not engaged in a continuing criminal 

enterprise . . . ; and

(5) . . . the defendant has truthfully provided to the 

Government all information and evidence the 

defendant has concerning the offense . . . .

18 U.S.C. § 3553(f) (emphasis added). The parties agree that the 

“and” used to join the larger list is conjunctive. See also Palomares, 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 8 of 85
19-14650 Opinion of the Court 9

52 F.4th at 654 (Willett, J., dissenting). That is, the sentencing court 

must find that a defendant satisfies each of subsections (f)(1) 

through (f)(5) before it may depart from a statutory minimum 

sentence. Because the “and” in subsection (f)(4) is conjunctive, the 

presumption of consistent usage instructs us to presume that the 

word “and” has the same sense when the word appears in 

subsection (f)(1). See Brown v. Gardner, 513 U.S. 115, 118 (1994) 

(explaining that the “presumption that a given term is used to mean 

the same thing throughout a statute” is “at its most vigorous when 

a term is repeated within a given sentence”).

Another aspect of the presumption of consistent usage is the 

principle that, ordinarily, “a material variation in terms suggests a 

variation in meaning,” SCALIA & GARNER, supra, § 25, at 170, and 

this principle too supports our interpretation. When conditions in 

section 3553(f) are disjunctive, the statute employs the word “or.” 

For example, the statute provides that a defendant is eligible for 

safety-valve relief only if he “did not use violence or credible threats 

of violence or possess a firearm or other dangerous weapon . . . in 

connection with the offense.” 18 U.S.C. § 3553(f)(2) (emphases 

added). In other words, any one of the conditions—violence, 

credible threats, or possession—is disqualifying. Similarly, the 

statute provides that relief is available only if “the defendant was 

not an organizer, leader, manager, or supervisor of others in the 

offense.” Id. § 3553(f)(4) (emphasis added). Again, it is disqualifying 

to have performed any one of the listed roles. Because the statute 

uses a negative followed by the disjunctive “or ” to convey that 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 9 of 85
19-14650 Opinion of the Court 10

satisfaction of a single condition in a list is disqualifying, we 

presume a variation in meaning when the statute employs a 

negative followed by the conjunctive “and.”

Our reading is also buttressed by the Senate’s legislative 

drafting manual, which “support[s] a conjunctive interpretation of 

[section] 3553(f)(1)’s ‘and.’” United States v. Lopez, 998 F.3d 431, 

436 (9th Cir. 2021); cf. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 

U.S. 50, 60–61 (2004) (relying on “standard interpreting guides,” 

including the House and Senate legislative drafting manuals, to 

interpret a statute). The manual instructs drafters on the proper use 

of “and” and “or,” directing them to use “and” as a conjunctive and 

“or” as a disjunctive:

IN GENERAL.—In a list of criteria that specifies a class 

of things—

(1) use ‘‘or’’ between the next-to-last criterion and the 

last criterion to indicate that a thing is included in the 

class if it meets 1 or more of the criteria; and 

(2) use ‘‘and’’ to indicate that a thing is included in the 

class only if it meets all of the criteria.

Senate Off. of the Legis. Couns., Legis. Drafting Manual § 302(a) 

(1997). This directive supports our interpretation that a defendant 

is ineligible for safety-valve relief only if he “meets all of the 

criteria” in section 3553(f)(1)—that is, only if he has all three 

prohibited conditions. See id.; Lopez, 998 F.3d at 436 (“[T]he 

Senate’s own legislative drafting manual tells us that ‘and’ is used 

as a conjunctive in statutes structured like [section] 3553(f)(1).”).

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 10 of 85
19-14650 Opinion of the Court 11

B. “And” Does Not Mean “Or.”

The government resists our reading. The government 

argues that, under a “distributive reading” of the word “and,” any 

one of the prohibitions listed in section 3553(f)(1) is disqualifying. 

It argues that the interpretation by the district court results in 

surplusage. It argues that the absurdity doctrine counsels against 

that interpretation. And it argues that legislative history supports 

its interpretation. We address and reject each argument in turn. 

And we explain why we must reach the same conclusion even if 

there were some merit to the government’s arguments.

1. The Government’s “Distributive Reading” Is Unpersuasive.

Although the government concedes that “and” should be 

treated “as conjunctive,” it argues that “a distributive reading offers 

the only natural interpretation of ” section 3553(f)(1). Under this 

reading, “the negative prefatory phrase [‘does not have’] distributes 

to modify each of the items severally,” such that “a defendant is 

eligible for safety-valve relief under [section] 3553(f)(1) [only] if he 

does not have any of the listed criminal-history conditions.” 

Essentially, the government invites us to read “and” to mean “or,” 

even as it concedes elsewhere in its briefs that this reading is 

mistaken. Neither the government nor our dissenting colleagues 

offer any authority that adopts this novel reading of “and,” other 

than recent decisions by our sister circuits that concern the same 

statutory provision. United States v. Palomares, 52 F.4th 640, 643–

45 (5th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018, 1021–22 

(8th Cir. 2022). We decline to adopt that novel reading when it 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 11 of 85
19-14650 Opinion of the Court 12

appears to have been crafted by the government specifically for this 

statute to achieve its preferred outcome. 

The government is asking us to inject the words “does not 

have” into the statute where they do not appear. In the 

government’s view, the statute should essentially be read as 

follows: A defendant is eligible for the safety valve if he (A) does 

not have more than 4 criminal history points (excluding 1-point 

offenses); (B) does not have a prior 3-point offense; and (C) does 

not have a prior 2-point violent offense. But we must “take the 

provision as Congress wrote it, and neither add words to nor 

subtract them from it.” Korman v. HBC Fla., Inc., 182 F.3d 1291, 

1296 (11th Cir. 1999).

The government supplies examples of its distributive 

reading of the phrase “not . . . and,” but those examples are 

unpersuasive. It gives as an example the advice, “To be healthy, 

you must not drink and smoke.” And it asserts that a reader “would 

reasonably distribute the prefatory phrase ‘you must not’ to each 

item individually,” in effect turning the conjunctive “and” into a 

disjunctive “or.” To be sure, a reader might understand the “and” 

in the example as a disjunctive. “But that understanding has little 

to do with syntax and everything to do with our common 

understanding that” drinking and smoking can be harmful 

individually. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1174 

(2021) (Alito, J., concurring in the judgment). So a reasonable 

reader might assume that the “and” was inserted inartfully in place 

of the more natural “or.” Another of the government’s examples—

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 12 of 85
19-14650 Opinion of the Court 13

the prohibition, “[y]ou must not lie, cheat, and steal”—is 

unpersuasive for the same reason. Indeed, it is no coincidence that 

the more common wording of the prohibition uses an “or” instead 

of an “and”: “You must not lie, cheat, orsteal.” See, e.g., Van Orden 

v. Perry, 545 U.S. 677, 715 (2005) (Stevens, J., dissenting) (“The 

State may admonish its citizens not to lie, cheat, or steal . . . .”); 

Andrews v. Knowlton, 509 F.2d 898, 902 (2d Cir. 1975) (“The Cadet 

Honor Code in force at the United States Military Academy 

consists of a single maxim: ‘A cadet does not lie, cheat or steal or 

tolerate those who do.’”).

Nor does the government’s position find support in the 

similarly named “distributive canon.” The canon “recognizes that 

sometimes where a sentence contains several antecedents and 

several consequents, courts should read them distributively and 

apply the words to the subjects which, by context, they seem most 

properly to relate.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 

1134, 1141 (2018) (alteration adopted) (internal quotation marks 

omitted); see also SCALIA & GARNER, supra, § 33, at 214 

(“Distributive phrasing applies each expression to its appropriate 

referent.”). For example, “a rule stating that ‘[m]en and women are 

eligible to become members of fraternities and sororities’ cannot 

reasonably be read to suggest an unconventional commingling of 

sexes in the club membership.” SCALIA & GARNER, supra, § 33, at 

214. Put simply, application of the distributive canon is like 

inserting the word “respectively” at the end of two connecting lists. 

The canon has no application here because there is no list of 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 13 of 85
19-14650 Opinion of the Court 14

antecedents to match to a corresponding list of consequents—no 

series of lists that can be clarified with the word “respectively.” Cf.

Facebook, 141 S. Ct. at 1172 (“[T]he canon’s relevance is highly 

questionable given there are two antecedents . . . but only one 

consequent modifier.”). 

2. The Ordinary Meaning of “And” Does Not Produce a 

Surplusage.

The government next contends that we should adopt its 

interpretation of section 3553(f)(1) to avoid rendering part of the 

section superfluous. The government asserts that a defendant who 

has “a prior 3-point offense,” 18 U.S.C. § 3553(f)(1)(B), and a “prior 

2-point violent offense,” id. § 3553(f)(1)(C), will necessarily also 

have “more than 4 criminal history points,” see id. § 3553(f)(1)(A). 

So, the government argues that a conjunctive reading of “and” 

would render subsection (f)(1)(A) superfluous in a way that a 

disjunctive reading would not. We disagree.

The superfluity argument has superficial appeal—after all, as 

our dissenting colleagues helpfully remind us, three plus two is 

more than four, Branch Dissenting at 16—but it rests on the 

mistaken premise that a defendant who satisfies subsections 

(f)(1)(B) and (f)(1)(C) will always satisfy subsection (f)(1)(A). To 

the contrary, there are at least two circumstances in which a 

defendant could have “a prior 2-point violent offense” and “a prior 

3-point offense . . . under the sentencing guidelines” but fewer than 

five “criminal history points.” See 18 U.S.C. § 3553(f)(1). Under the 

sentencing guidelines, a two-point offense adds no points to the 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 14 of 85
19-14650 Opinion of the Court 15

defendant’s criminal-history score if the sentence was imposed 

more than 10 years before the defendant commenced the present 

offense. UNITED STATES SENTENCING GUIDELINES MANUAL

§ 4A1.1(b) & cmt. n.2 (Nov. 2018). Similarly, a three-point offense 

does not contribute to the criminal-history score if the defendant 

finished serving the sentence more than 15 years before 

commencing the present offense. Id. § 4A1.1(a) & cmt. n.1. So, for 

example, a defendant could have 20-year-old two-point and threepoint offenses, satisfying subsections (B) and (C), but score zero 

criminal history points and fall below the threshold in subsection 

(A). See Palomares, 52 F.4th at 659 (Willett, J., dissenting).

The second circumstance in which a defendant could have 

two- and three-point offenses but fewer than five criminal history 

points occurs when the two- and three-point offenses are treated as 

a single sentence. The guidelines treat separate offenses as a single 

sentence for criminal-history purposes when the sentences result 

from offenses charged in the same instrument or when they were 

imposed on the same day. Id. § 4A1.2(a)(2). When separate offenses 

are counted as a single sentence, the district court calculates the 

term of imprisonment based on the longest sentence if the 

sentences were imposed concurrently or the total of both sentences 

if they were imposed consecutively. Id. So, for example, a 

defendant could have a two-point and a three-point offense 

charged in the same instrument, satisfying subsections (B) and (C), 

but score only three criminal history points and fall below the 

threshold in subsection (A).

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 15 of 85
19-14650 Opinion of the Court 16

The government argues that “if an offense is too old to score 

any points under the [g]uidelines, then it is not a ‘prior [2- or] 3-

point offense, as determined under the sentencing guidelines,’” see 

18 U.S.C. § 3553(f)(1)(B), but the statute itself refutes this 

argument. Section 3553(f)(1)(A) directs courts to consider whether 

the defendant has “more than 4 criminal history points, excluding 

any criminal history points resulting from a 1-point offense.” That 

is, the subsection distinguishes between points associated with an 

“offense”—points that may or may not count towards the criminal 

history score—and the final tally of “criminal history points.” The 

subsection would be nonsensical if the government were correct 

that offenses may have points associated with them only when 

those points contribute to the final criminal history score. The text 

forecloses that reading.

To be sure, our interpretation requires reading “prior 3-

point” and “2-point violent offense[s],” id. § 3553(f)(1)(B)–(C), to 

include offenses that do not contribute to the total criminal-history 

score, but this reading is a function of the statutory text. The 

guidelines are not framed around “offenses”; they instead instruct 

sentencing courts to add points to the defendant’s criminal-history 

score for his “prior sentence[s] of imprisonment.” See U.S.S.G. 

§ 4A1.1. So the meaning of “a prior . . . offense” must come from 

section 3553(f), not from the guidelines. See 18 U.S.C. § 3553(f)

And, as we have explained, section 3553(f) distinguishes between 

“hav[ing] . . . criminal history points” and “hav[ing] . . . offense[s].” 

See id. Under the statute, criminal-history points are those that are 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 16 of 85
19-14650 Opinion of the Court 17

actually scored, and a three-point offense is one that would add 

three points to the score, all else being equal.

To the extent that the guidelines offer clues about the 

meaning of “a prior . . . offense,” id., the guidelines support our 

interpretation. Like section 3553(f)(1), the guidelines use the word 

“offense” to refer to convictions that may or may not contribute to 

a criminal history score. Section 4A1.2, for example, describes in 

what instances “offenses are counted.” U.S.S.G. § 4A1.2(c). It 

provides that most “[s]entences for misdemeanor and petty 

offenses are counted,” but then lists the “prior offenses and offenses 

similar to them” that “are never counted” or that “are counted 

only” in certain circumstances. See id. And like section 3553(f)(1), 

the guidelines delineate between the number of points for prior 

sentences and the calculation of a criminal history score. For 

example, under the guidelines, a “prior sentence of imprisonment 

exceeding one year and one month” is worth “3 points.” Id.

§ 4A1.1(a). But that prior sentence is “not counted,” id. § 4A1.1 

cmt. n.1, toward “[t]he total points” of the criminal history score, 

id. § 4A1.1, if the “sentence [was] imposed more than fifteen years 

prior to the defendant’s commencement of the instant offense,” the 

prior “offense [was] committed prior to the defendant’s eighteenth 

birthday,” or the “sentence [was] for a foreign conviction, a 

conviction that ha[s] been expunged, or an invalid conviction,” id.

§ 4A1.1 cmt. n.1.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 17 of 85
19-14650 Opinion of the Court 18

3. The Ordinary Meaning of “And” Does Not Produce 

an Absurd Result.

The government next relies on the absurdity doctrine. The 

doctrine permits a court to “depart from the literal meaning of an 

unambiguous statute . . . where a rational Congress could not 

conceivably have intended the literal meaning to apply.” Vachon 

v. Travelers Home & Marine Ins. Co., 20 F.4th 1343, 1350 (11th 

Cir. 2021) (Pryor, C.J., concurring) (alteration adopted) (citation 

and internal quotation marks omitted). Because “[c]ourts should 

not be in the business of rewriting legislation, . . . we apply the 

absurdity doctrine only under rare and exceptional circumstances.” 

Id. (internal quotation marks omitted). The government argues 

that, because only “the rare defendant” would fail all three 

subsections in section 3553(f)(1), our interpretation “would expand 

eligibility to defendants that Congress could not have plausibly 

deemed worthy of relief.” We disagree.

This case is not the exceptional one in which the absurdity 

doctrine permits us to rewrite the statute, as even our dissenting 

colleagues acknowledge. See Branch Dissenting at 23–24. Congress 

could rationally have “question[ed] the wisdom of mandatory 

minimum sentencing,” which, “it is often said, fail[s] to account for 

the unique circumstances of offenders who warrant a lesser 

penalty.” See Harris v. United States, 536 U.S. 545, 568 (2002), 

overruled on other grounds by Alleyne v. United States, 570 U.S. 

99 (2013). And Congress could rationally have decided to allow 

many defendants to be sentenced based on their “unique 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 18 of 85
19-14650 Opinion of the Court 19

circumstances,” see id., while retaining mandatory minimums for 

those defendants it perceived to be particularly unworthy of relief. 

To that end, each portion of section 3553(f)(1) targets a different 

type of behavior suggestive of future dangerousness. Under the 

guidelines, a prior sentence can have up to three points associated 

with it. See U.S.S.G. § 4A1.1. So the requirement in subsection 

(A)—that a defendant not have “more than 4 criminal history 

points”—targets serious recidivists, that is, defendants with more 

than one prior sentence excluding minor one-point offenses. See 18 

U.S.C. § 3553(f)(1)(A). The requirement in subsection (B)—that a 

defendant not have a 3-point offense—targets defendants who have 

committed those serious crimes that received long sentences of 

imprisonment. See id. § 3553(f)(1)(B). And the requirement in 

subsection (C) targets defendants with a history of violence even 

though they received shorter sentences. See id. § 3553(f)(1)(C). 

Taken together, the conditions in section 3553(f)(1) are rationally 

aimed at ensuring that the most dangerous offenders—violent 

recidivists with a history of committing serious crimes—remain 

ineligible for safety-valve relief.

The rationality of section 3553(f )(1) is even clearer—and the 

absurdity argument even weaker—when the section is considered 

as part of the larger statutory scheme. A criminal defendant’s 

ability to satisfy section 3553(f )(1) does not guarantee that the 

defendant will satisfy the four other subsections necessary to 

qualify for safety-valve relief. See id. § 3553(f )(2)–(5). To the 

contrary, those subsections will often disqualify defendants the 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 19 of 85
19-14650 Opinion of the Court 20

government considers unworthy of relief. For example, the 

government expresses concern that certain violent offenders may 

remain eligible for relief, but the statute disqualifies a defendant if 

he “use[s] violence or credible threats of violence . . . in connection 

with the offense,” or if the offense “result[s] in death or serious 

bodily injury to any person.” Id. § 3553(f )(2)–(3). Moreover, it does 

not follow from the availability of safety-valve relief that a 

defendant will always receive a sentence that is meaningfully 

different from the mandatory minimum. A defendant who is 

eligible for safety-valve relief must be sentenced “pursuant to [the 

sentencing] guidelines,” id. § 3553(f ), and the guidelines treat a 

defendant’s criminal history as an aggravating factor warranting a 

longer sentence, see, e.g., U.S.S.G. §§ 4A1.1, 4B1.1, 4B1.3–4. As our 

dissenting colleague explains, a judge who has discretion to impose 

a shorter sentence, based on the safety-valve provision, may 

reasonably choose not to exercise that discretion if consideration 

of the defendant’s history counsels against it. Brasher Dissenting at 

3–4. 

Because section 3553(f)(1) is rational, we have no power to 

rewrite the statute to accommodate the government’s policy 

concerns about the number of defendants eligible for relief, see 

Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021), and the 

government gets no further by ascribing those concerns to 

Congress. The First Step Act was enacted to decrease the number 

of criminal defendants subject to mandatory minimum sentences. 

See 18 U.S.C. § 3553(f)(1) (2012) (pre-First Step Act provision 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 20 of 85
19-14650 Opinion of the Court 21

disqualifying a defendant from safety-valve relief if he had “more 

than 1 criminal history point”). That Congress might not have 

anticipated how broadly its reforms would sweep does not make 

those reforms absurd. See Vachon, 20 F.4th at 1351 (Pryor, C.J., 

concurring) (“[T]he absurdity doctrine does not give us license to 

fix substantive errors arising from a drafter’s failure to appreciate 

the effect of certain provisions . . . .” (internal quotation marks 

omitted)).

The government also mentions the possibility that a 

conjunctive reading of “and” would disqualify some defendants 

while “allow[ing] more serious offenders to obtain relief.” And our 

concurring colleague offers a specific hypothetical example about 

an offender who has several violent three-point offenses but no 

violent two-point offenses. Rosenbaum Concurring at 3. Notably, 

one of our sister circuits, which shares our view of the conjunctive 

reading, has rejected our concurring colleague’s reading. See 

Lopez, 998 F.3d at 440 n.10 (rejecting this interpretation as 

“nonsensical” because the section 3553(f )(1)(c) requirement for a 

two-point violent offense can be fulfilled by a three-point offense). 

But we need not—and do not—decide specific applications of the 

statute to offenders who are not before us.

Neither the government’s interpretation nor our concurring 

colleague’s specific example would make the ordinary meaning of 

the statute absurd. “Congress often legislates at the macro level, 

not on a micro scale.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 

F.3d 1217, 1229 (11th Cir. 2001). One consequence of this approach 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 21 of 85
19-14650 Opinion of the Court 22

is that legislation sometimes “sweep[s] too broadly” by “affording 

protection and relief to some who are not truly deserving or 

aggrieved,” even as it sweeps “too narrowly” by “failing to reach 

some who are more deserving or aggrieved.” Id. Because this 

“[i]mperfection” stems from the “nature of [the] political process,” 

id., we consider the rationality of the overall statutory scheme and 

not whether “a particular application of the [scheme] may lead to 

an arguably anomalous result,” see Silva-Hernandez v. U.S. Bureau 

of Citizenship & Immigr. Servs., 701 F.3d 356, 364 (11th Cir. 2012). 

And because, as we have explained, a rational Congress could 

conceivably have intended to disqualify only those defendants who 

satisfy every condition in section 3553(f)(1), the perceived 

inequities of particular applications do not rise to the level of an 

absurdity. 

4. The Legislative History Is Irrelevant.

The government argues that the legislative history supports 

its interpretation, but we agree with its alternative argument that 

“[t]here is no need to consult [that] history.” Assuming legislative 

history plays a role in modern statutory interpretation, see 

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969 (11th Cir. 

2016) (en banc), that role is limited to “shed[ding] . . . light on the 

enacting Legislature’s understanding of otherwise ambiguous 

terms,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 

568 (2005). Because the meaning of “and” in section 3553(f)(1) is 

unambiguous, legislative history has no role to play here. And even 

if there were ambiguity, “the need for fair warning” for an accused, 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 22 of 85
19-14650 Opinion of the Court 23

Crandon v. United States, 494 U.S. 152, 160 (1990), “preclude[s] our 

resolution of the ambiguity against [Garcon] on the basis of . . . 

legislative history,” see Hughey v. United States, 495 U.S. 411, 422 

(1990). 

5. The Rule of Lenity Counsels Against the Government’s 

Interpretation.

If any “grievous ambiguity” remained, the rule of lenity 

would resolve it. See Barber v. Thomas, 560 U.S. 474, 488 (2010) 

(internal quotation marks omitted). “The rule of lenity is a canon 

of statutory construction that requires courts to construe 

ambiguous criminal statutes narrowly in favor of the accused.” 

United States v. Wright, 607 F.3d 708, 716 (11th Cir. 2010) (Pryor, 

J., concurring). The rule applies “not only to interpretations of the 

substantive ambit of criminal prohibitions, but also to the penalties 

they impose.” Id. at 717 (quoting Bifulco v. United States, 447 U.S. 

381, 387 (1980)). Our dissenting colleagues dismiss the rule of lenity 

by maintaining that their interpretation resolves any ambiguity. 

Branch Dissenting at 27–28. But our dissenting colleagues resolve 

this ambiguity only by ignoring the canons that point in a different 

direction. See SCALIA & GARNER, supra, § 3, at 59 (“Principles of 

interpretation are guides to solving the puzzle of textual meaning, 

and as in any good mystery, different clues often point in different 

directions.”). Even if our dissenting colleagues and the government 

were correct that our interpretation rendered part of section 

3553(f)(1) superfluous, we would be faced with an ambiguous 

statute: ordinary meaning, the presumption of consistent usage, 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 23 of 85
19-14650 Opinion of the Court 24

and the Senate drafting manual would point toward one 

interpretation, and the presumption against superfluity would 

point toward another. In that circumstance, the rule of lenity 

would require us to give the word “and” “its ordinary, accepted 

meaning,” see Burrage v. United States, 571 U.S. 204, 216 (2014), 

and treat the word as conjunctive. 

IV. CONCLUSION 

We AFFIRM Garcon’s sentence.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 24 of 85
ROSENBAUM, Circuit Judge, Concurring:

From my seat, the shootout at the Eleventh Circuit Corral 

between the well-reasoned Majority and Dissenting Opinions here 

produces no indisputable winner after the smoke clears. For me, 

the problem is that the traditional tools of statutory interpretation

fail to produce one interpretation of 18 U.S.C. § 3553(f)(1) that is 

“the best interpretation,” Shular v. United States, 140 S. Ct. 779, 

788 (2020), (Kavanaugh, J., concurring) (citation omitted). Rather, 

even after we exhaust all the ammunition in our statutoryinterpretation belts, a “grievous ambiguity” remains as to whether 

a defendant still qualifies for safety-valve relief under 18 U.S.C. § 

3353(f)(1) if he satisfies fewer than all three factors that that 

provision outlines. See Muscarello v. United States, 524 U.S. 125, 

138–39 (1998). 

So I would apply the rule of lenity to settle that “grievous 

ambiguity.”1 And as the Majority Opinion explains, applying that 

rule begets the conclusion that a defendant qualifies for safety1 Still, I note that some say that application of the rule of lenity requires only 

that, after resort to all the traditional tools of interpretation, “a reasonable 

doubt persists” about the statute’s intended meaning. See United States v. 

McNab, 331 F.3d 1228, 1239 n.21 (11th Cir. 2003) (quoting Moskal v. United 

States, 498 U.S. 103, 108 (1990)); see also Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 299 (2012) (favoring this 

formulation, even though it is “more defendant-friendly than most” 

formulations, for “when the government means to punish, its commands 

must be reasonable clear.”). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 25 of 85
19-14650 ROSENBAUM, J., Concurring 2

valve relief as long as he does not satisfy all three of the factors 18 

U.S.C. § 3353(f)(1) identifies. 

That said, the Dissent’s common-sense interpretation of § 

3553(f)(1), which reads the “and” as an “or,” has a lot of appeal 

because it converges with what appears to be the statute’s manifest 

intent. Under the original version of § 3553(f)(1), a defendant 

qualified for safety-valve relief only if he did “not have more than 

1 criminal history point, as determined under the sentencing 

guidelines.” Violent Crime Control and Law Enforcement Act of 

1994, Pub. L. No. 103-322, § 80001(a), 108 Stat. 1796, 1985 (1994) 

(current version at 18 U.S.C. § 3353(f)(1)). As the name and content 

of that law indicate, and as then-President William Clinton 

explained before signing the law, Congress was particularly 

concerned when it enacted that statute about keeping “violent 

criminals off the street.” Remarks on Signing the Violent Crime 

Control and Law Enforcement Act of 1994, 2 Pub. Papers. 1539, 

1540 (Sept. 13, 1994). So the safety valve provided an escape from 

mandatory minimum sentences for only those with the most 

minimal criminal histories. 

The First Step Act then loosened up safety-valve eligibility a 

bit, authorizing relief from a mandatory minimum sentence for a 

defendant who, among other qualifications, “does not have” “more 

than 4 criminal history points,” “a prior 3-point offense,” “and” “a 

prior 2-point violent offense.” First Step Act of 2018, Pub. L. No. 

115-391, § 402(a)(1), 132 Stat. 5194, 5221 (2018) (amending 18 

U.S.C. § 3553(f)(1)). Though the Act expanded eligibility, 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 26 of 85
19-14650 ROSENBAUM, J., Concurring 3

Congress’s decision to make “a prior 2-point violent offense” either 

partially or wholly disqualifying (depending on whether the 

Majority Opinion or the Dissent is right) evinces Congress’s 

continued concern about authorizing safety-valve relief for anyone 

previously convicted of a truly violent crime. After all, a two-point 

offense is one for which a defendant was previously sentenced to 

imprisonment for a comparatively shorter sentence—for as few as 

two months. See U.S.S.G. § 4A1.1(b) (defining a two-point offense 

as one for which a sentence lasting between two and thirteen 

months was imposed). 

So from a common-sense standpoint driven by the purpose 

and statutory context of § 3553(f)(1), the Majority Opinion’s 

construction of that provision is entirely counterintuitive. To 

illustrate just how counterintuitive that construction is, imagine 

two hypothetical defendants. The first has seven violent threepoint offenses (prior convictions for which a sentence of at least 

thirteen months was imposed, see U.S.S.G. §§ 4A1.1(a)), and has 

spent years in prison for those violent crimes. Although this first 

defendant’s total criminal history tallies twenty-one points—all 

incurred for committing violent crimes—he has no prior two-point 

violent convictions. And for that reason, he qualifies for the safety 

valve under the Majority Opinion’s interpretation of § 3553(f)(1). 

The second defendant, meanwhile, has just a single two-point 

violent conviction (which landed him in jail for only two months) 

and one three-point nonviolent conviction for a total of five points. 

Yet because that second defendant satisfies all three § 3353(f)(1) 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 27 of 85
19-14650 ROSENBAUM, J., Concurring 4

factors, he does not qualify for safety-valve relief under the 

Majority Opinion’s interpretation of that provision. If the second 

defendant’s single two-point violent offense is enough to knock 

him out of contention for the safety valve, it is hard to see why 

Congress, in trying to restrict safety-valve access to nonviolent 

offenders, would have intended for the first defendant, with years 

in jail on 21 points’ worth of violent offenses, to qualify for it.

Dismissing this contradiction, the Majority Opinion 

suggests that § 3553(f)(1)’s “requirement for a two-point violent 

offense can be fulfilled by a three-point offense.” See Maj. Op. at 

21 (citing United States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021)). 

But an analysis that lives by the text must also die by it. And 

the Majority Opinion’s suggestion that we can read § 3553(f)(1)’s 

reference to a “2-point violent offense, as determined under the 

sentencing guidelines” to mean a “2-point or more violent offense, 

as determined under the sentencing guidelines” would require us 

to add text that doesn’t exist. Indeed, the definition of “2-point 

offense” under the sentencing guidelines is mutually exclusive of 

the definition of “3-point offense.”2 And as the Majority Opinion 

2 Under the Sentencing Guidelines, a “2-point offense” is an offense for which 

the defendant was sentenced to “imprisonment of at least sixty days not 

counted in [U.S.S.G. § 4A1.1](a).” Subsection 4A1.1(a), in turn, provides that 

a prior conviction scores three points if the defendant was sentenced to 

“imprisonment exceeding one year and one month.” U.S.S.G. s 4A1.1(a). So 

a “2-point offense” is necessarily one where the defendant was sentenced to 

between 60 days and one year and one day shy of one month in prison, while 

a “3-point offense” is one where the defendant was sentenced to at least one 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 28 of 85
19-14650 ROSENBAUM, J., Concurring 5

correctly notes, when we engage in a textual analysis, we can’t just 

add words that Congress did not write. See Maj. Op. at 12 (citing 

Korman v. HBC Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999)). 

Even the Majority Opinion appears to recognize the weakness in 

its suggestion, since it expressly declines to adopt the reading it 

suggests. See Maj. Op. at 21 (excusing its decision not to adopt this 

reading of the text because “[w]e need not—and do not—decide 

specific applications of the statute to offenders who are not before 

us”).

To summarize, then, the upshot of the Majority Opinion’s 

construction of § 3553(f)(1) is this: the first defendant, who served 

years in prison for violent crimes, qualifies for safety-valve relief, 

while the second defendant, who served only two months in prison 

for one violent crime, does not. Why? According to the Majority 

Opinion, the answer is that the first defendant never committed a 

two-point violent offense while the second defendant did. Yet the 

first defendant served years in prison for his violent offenses, while 

the second defendant served only two months in prison for a single

violent offense. That just seems wrong—especially because we 

know Congress was concerned about the problem of repeat violent 

offenders when it enacted and amended § 3553(f)(1).

Besides the dissonance of that result, I am also unpersuaded 

by the Majority Opinion’s explanation for why its reading of § 

year and one month in prison. And a “3-point offense,” by definition, cannot 

qualify as a “2-point offense” under the Sentencing Guidelines.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 29 of 85
19-14650 ROSENBAUM, J., Concurring 6

3553(f)(1) does not render the four-point criminal-history 

disqualification criterion surplusage. See Maj. Op. at 14–17 

(reasoning that a defendant with prior two-point and three-point 

offenses does not qualify for safety-valve relief when those 

convictions occurred more than ten or fifteen years ago, at which 

point the Sentencing Guidelines instruct courts to exclude those 

offenses from the defendant’s total criminal-history score). It 

seems odd to require courts to include points from prior 

convictions in assessing a defendant’s eligibility for safety-valve 

relief when the Sentencing Guidelines expressly instruct us to 

exclude those same points in determining the Sentencing 

Guidelines range—a fact that Congress knew, as Congress must at 

least implicitly approve the Sentencing Guidelines. See 28 U.S.C. § 

994(p). 

Still, though, the Supreme Court has cautioned us that “[t]he 

canon against surplusage is not an absolute rule.” Marx v. Gen. 

Revenue Corp., 568 U.S. 371, 385 (2013). And though I personally 

don’t find the Majority Opinion’s surplusage explanation satisfying, 

I also can’t say it’s wrong beyond question.

Plus, the Majority Opinion is, of course, correct when it 

emphasizes that “and” is a conjunctive word. Not only does the 

statute use the word “and” to connect all three disqualifying factors 

under § 3553(f)(1), but it also uses “and” as a conjunctive word 

elsewhere in § 3553(f). And that further suggests that “and” means 

“and” in § 3553(f)(1). There is also no doubt that Congress 

employed the disjunctive “or” elsewhere in § 3553(f), which 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 30 of 85
19-14650 ROSENBAUM, J., Concurring 7

similarly suggests that Congress would have used “or” in § 

3553(f)(1) if that’s what it intended.

Each of these dueling interpretive canons and considerations 

seems to apply more strongly than the last in the context of 

analyzing § 3553(f)(1). At the end of the day, I am concerned that 

our decision today is based on “no more than a guess as to what 

Congress intended.” Ocasio v. United States, 578 U.S. 282, 296 n.8 

(2016) (quoting Muscarello, 524 U.S. at 138–39) (explaining the 

circumstances that trigger application of the rule of lenity). In my 

view, § 3553(f)(1) is just “grievously ambiguous.” 

With that in mind, I also have two concerns with following 

the Dissent’s construction. First, given the plain language of § 

3553(f)(1), I don’t think the statute clearly notifies defendants that 

satisfying only one or two of the three factors under § 3553(f)(1) 

will disqualify them from eligibility for safety-valve relief. And 

second, I don’t think we can rule out the possibility that Congress 

intended to use “and,” even though that seems unlikely to me. For 

these reasons, I am concerned that the Dissent’s construction, 

which replaces “and” with “or,” is unfaithful to the statutory 

language and therefore violates the separation of powers.

Not for nothing, but those are precisely the two concerns 

the rule of lenity addresses. See United States v. Phifer, 909 F.3d 

372, 383 (11th Cir. 2018) (citing United States v. Bass, 404 U.S. 336, 

347 (1971)). As the Supreme Court has observed, the rule of lenity 

is just about as old as “the task of statutory ‘construction itself.’” 

United States v. Davis, 139 S. Ct. 2319, 2333 (2019) (quoting United 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 31 of 85
19-14650 ROSENBAUM, J., Concurring 8

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, 

C.J.)). Indeed, the rule of lenity reflects the law’s “tenderness” for 

“the rights of individuals” to receive “fair notice of the law” and 

“on the plain principle that the power of punishment is vested in 

the legislative, not in the judicial department.’” Id. 

Though the cases where the rule of lenity applies are few 

and far between—after all, it is a rule of last resort that applies only 

after exhausting the canons of statutory construction still leaves us 

with a “grievously ambiguous” statute—§ 3553(f)(1) is one of the 

rare statutes that require the rule’s application. And when we 

apply the rule of lenity here, we must conclude that a defendant is 

ineligible for safety-valve relief under § 3553(f)(1) only if his 

criminal history satisfies all three of the requirements the statute 

sets forth as disqualifying. For that reason, I concur in the 

judgment of the Majority Opinion.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 32 of 85
NEWSOM, Circuit Judge, joined by LAGOA, Circuit Judge, 

concurring:

I concur in the Court’s decision and join its opinion in full. I 

write separately simply to articulate one more reason for rejecting 

the government’s anti-surplusage argument—and to comment, 

very briefly, on what I take to be the proper role of canons of 

construction in the interpretive enterprise.

A lot of ink has been spilled over the anti-surplusage canon’s 

relevance to the question before us. Today’s majority and the 

Ninth Circuit have identified two different ways to eliminate the 

purported surplusage in § 3553(f)(1). See Maj. Op. at 14–17; United 

States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021). Today’s dissent, 

adopting the government’s position and joining the Fifth, Seventh, 

and Eighth Circuits, disagrees. See Dissenting Op. at 12–22; United 

States v. Palomares, 52 F.4th 640, 640–45 (5th Cir. 2022); United 

States v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022); United States v. 

Pulsifer, 39 F.4th 1018, 1021–22 (8th Cir. 2022). Here’s the thing, 

though: Even if the government and today’s dissenters had the 

stronger position in the surplusage battle, they wouldn’t win the 

interpretive war. The reason: The anti-surplusage canon gives us 

no license to skirt unambiguous text, and no canon can make the 

word “and” in § 3553(f)(1) mean “or.”

“In interpreting written law, our duty is to ‘determine the 

ordinary public meaning’ of the provision at issue.” Heyman v. 

Cooper, 31 F.4th 1315, 1319 (11th Cir. 2022) (quoting Bostock v. 

Clayton County, 140 S. Ct. 1731, 1738 (2020)). To be sure, “[t]he 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 33 of 85
19-14650 NEWSOM, J., Concurring 2

canons of construction often ‘play a prominent role’ in that 

endeavor, serving as ‘useful tools’ to discern that ordinary 

meaning.” Id. (quoting Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 

1173 (2021) (Alito, J., concurring)). I consult the canons routinely 

in statutory, regulatory, and contract cases—we all do. But the 

canons “are not ‘rules’ of interpretation in any strict sense.” 

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 51 (2012). Rather, they are simply 

“presumptions about what an intelligently produced text conveys.” 

Id. Accordingly, in carrying out our basic task—discerning a 

written provision’s ordinary meaning—“we shouldn’t treat the 

canons ‘like rigid rules,’” and we should be alert to over- or 

misusing them. Heyman, 31 F.4th at 1319 (quoting Duguid, 141 S. 

Ct. at 1175 (Alito, J., concurring)). For it bears repeating that our 

“obligation is to the text and not the canons per se.” Id. at 1321–

22; see also United States v. Monsanto, 491 U.S. 600, 611 (1989) 

(“[I]nterpretative canons are not a license for the judiciary to 

rewrite language enacted by the legislature.” (cleaned up)).

The government’s anti-surplusage argument here—which, 

I’ll admit, is not without some force—violates this cardinal 

command. It would have us mechanically apply the antisurplusage canon at the expense of § 3553(f)(1)’s plain text. But 

doing so exacts too great a cost. After all, “the usual ‘preference’ 

for ‘avoiding surplusage constructions is not absolute,’” and 

“‘applying the rule against surplusage is, absent other indications, 

inappropriate’ when it would make an otherwise unambiguous 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 34 of 85
19-14650 NEWSOM, J., Concurring 3

statute ambiguous.” Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1301 

(11th Cir. 2018) (quoting Lamie v. United States Tr., 540 U.S. 526, 

536 (2004)). Thus, when we are “faced with a choice between a 

plain-text reading that renders a word or clause superfluous and an 

interpretation that gives every word independent meaning but, in 

the doing, muddies up the statute,” we “‘should prefer the plain 

meaning.’” Id. (quoting Lamie, 540 U.S. at 536). Only “that 

approach respects the words of Congress” and our limited judicial 

role. Lamie, 540 U.S. at 536.

Put simply, just as no amount of canon-based massaging 

could make “white” mean “black” or “up” mean “down,” none can 

make the word “and” mean “or.” Now, maybe Congress just made 

a mistake—perhaps it meant to say “or” in § 3553(f)(1) instead of 

“and.” But “[i]t is beyond our province to rescue Congress from its 

drafting errors, and to provide for what we might think . . . is the 

preferred result.” Id. at 542 (quotation omitted). If Congress 

goofed, it should exercise its Article I authority to amend the 

statute; Article III doesn’t empower us to do Congress’s job for it. 

Were we to engage in interpretive gymnastics to make § 3553(f)(1) 

say what it objectively, demonstrably, verifiably does not say—in 

essence, to save Congress from itself—we would do the separation 

of powers, and democracy itself, a profound disservice.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 35 of 85
JORDAN, J., Dissenting:

The criminal history criteria of the so-called “safety-valve” 

provision allows a district court in certain narcotics cases to impose 

a sentence without regard to an otherwise-applicable statutory 

minimum if “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[.]

18 U.S.C. § 3553(f)(1) (emphasis added). According to the 

majority’s reading of § 3553(f)(1)(A)-(C), the “and” linking 

subsections (f)(1)(A), (f)(1)(B), and (f)(1)(C) is conjunctive. A 

defendant who has seven 3-point felony offenses (but no 2-point 

violent offenses) is therefore eligible for “safety-valve” relief. So is 

a defendant who has five violent 2-point offenses (but no 3-point 

offenses). 

I very much doubt that this is the state of affairs that 

Congress envisioned when it revised the criminal history portion 

of the “safety valve” provision in the First Step Act of 2018. I agree 

with much of what Judge Branch has said, and join Parts I, II, III.A, 

and III.B of her dissent. I write separately to explain that—

depending on the context—the word “and” can be read 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 36 of 85
19-14650 JORDAN, J., Dissenting 2

disjunctively in legal texts, and to set out the views of the Senators 

who proposed the exact provision that became § 3553(f)(1).

I 

 At the end of the day, the resolution of Mr. Garcon’s case 

turns on the meaning of the word “and” in § 3553(f)(1)(A)-(C). I 

therefore begin with how that word is understood. 

Generally “and” is used as a conjunctive connector of words, 

phrases, or clauses. See Am. Bankers Ins. Group v. United States, 

408 F.3d 1328, 1332 (11th Cir. 2005); The American Heritage 

Dictionary of the English Language 66 (5th ed. 2018). But here 

“and” is being used in a statute, so its legal sense matters. See, e.g., 

Stansell v. Revolutionary Armed Forces of Colombia, 45 F. 4th 

1340, 1353-54 (11th Cir. 2022) (choosing the legal understanding, 

rather than the lay understanding, of a statutory term). And that is 

where things start to get interesting. 

By the mid-19th century, English courts had “already 

allowed for and = or and or = and.” Webster’s Dictionary of 

English Usage 94 (1989). The legal interchangeability between 

“and” and “or” was similarly understood across the pond in 

American law. The Supreme Court expressly recognized this 

fluidity in United States v. Fisk, 70 U.S. 445, 447 (1865), and legal 

dictionaries of the era did as well. See 1 Alexander M. Burill, A 

New Law Dictionary and Glossary: Containing Full Definitions of 

the Principal Terms of the Common and Civil Law 70 (1850) 

(“AND, in written instruments, is frequently construed to mean or, 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 37 of 85
19-14650 JORDAN, J., Dissenting 3

where reason and the intent of the parties requires it. . . . A similar 

rule of construing the conjunctive participle in a disjunctive sense, 

prevailed in the civil law. Sæpa ita comparatum est, ut conjuncta 

pro disjunctis accipiantur.”); 1 Stewart Rapalje & Robert L. 

Lawrence, A Dictionary of American and English Law, with 

Definitions of the Technical Terms of the Canon and Civil Laws 58 

(1888) (recognizing that “and” can be “construed to mean ‘or’” or 

“read [as] ‘or’”); Arthur English, Dictionary of Words and Phrases 

Used in Ancient and Modern Law 47 (1899) (“And. . . . Sometimes 

construed to mean ‘or.’”); James John Lewis, Collegiate Law 

Dictionary: A Dictionary of Technical Terms of the Law and of 

Words and Phrases Which Have Been Judicially Defined 13 (1925) 

(“[A]nd . . . In construing instruments and statutes, frequently 

construed as meaning ‘or[.]’”); William E. Baldwin, Baldwin’s 

Century Edition of Bouvier’s Law Dictionary 71 (1926) (“AND. In 

order for the court to ascertain the intention of the legislature in 

construction of statutes, they are often compelled to construe ‘or’ 

as meaning ‘and,’ and again ‘and’ as ‘or.’”).1

1 For other early 20th-century sources repeating the same theme, see 1 Judicial 

and Statutory Definitions of Words and Phrases 386-394 (West. Pub. Co. 1904)

(“[the] strict meaning [of ‘and’ and ‘or’] is more readily departed from than 

that of any other words, and one read in the place of the other in deference to 

the meaning of the context,” so that “[‘and’] must be regarded as a convertible 

term with ‘or,’ if the sense so requires, even in a criminal statute, where a strict 

construction usually prevails”); 3 William M. McKinney & David S. Garland, 

American & English Encyclopedia of Law and Practice 932 (1910) (essentially 

the same). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 38 of 85
19-14650 JORDAN, J., Dissenting 4

We’ve said the same things several times. For example, in 

Peacock v. Lubbock Compress Co., 252 F. 2d 892, 893 (5th Cir. 

1958), we explained that “the word ‘and’ is not a word with a single 

meaning, for chameleonlike, it takes its color from its 

surroundings.” More recently, we noted that 

“[e]very use of ‘and’ or ‘or’ as a conjunction involves 

some risk of ambiguity.” As we have recognized in 

our cases, “[i]t is an established princip[le] that ‘the 

word “or” is frequently construed to “and,” and vice 

versa, in order to carry out the evident intent of the 

parties.’” In other words, “there is more to ‘and’ than 

meets the eye.” 

Shaw v. Nat’l Union Fire Ins. Co. of Pittsburgh, 605 F.3d 1250, 1253 

(11th Cir. 2010) (citations omitted). 

In sum, “[t]he simplest-looking words are often among the 

most complicated, and ‘and’ is no exception.” R.W. Burchfield, 

Fowler’s Modern English Usage 52 (Rev. 3d ed. 2004). As one legal 

dictionary has put it: “‘And’ is a conjunction that has an inherent 

ambiguity in its use . . . . [As an example,] ‘the clerk requires A, B, 

and C,’ may mean that the clerk requires one of the three or that 

the clerk requires all three at once.” 1 Bouvier Law Dictionary 148 

(Desk ed. 2012). Accord De Sylva v. Ballentine, 351 U.S. 570, 573 

(1956) (“We start with the proposition that the word ‘or’ is often 

used as a careless substitute for the word ‘and’; that is, it is often 

used in phrases where ‘and’ would express the thought with 

greater clarity.”); Bryan A. Garner, Garner’s Dictionary of Legal 

Usage 56 (3d ed. 2011) (“Sloppy drafting sometimes leads courts to 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 39 of 85
19-14650 JORDAN, J., Dissenting 5

recognize that and in a given context means or, much to the 

chagrin of some judges[.]”).2

II 

The original “safety valve” provision, enacted by Congress 

in 1994, allowed district courts to sentence certain narcotics 

defendants without regard to an otherwise-applicable statutory 

minimum if certain criteria were established. One of those criteria 

was that the defendant did “not have more than 1 criminal history 

point, as determined under the sentencing guidelines.” Violent 

Crime Control and Law Enforcement Act of 1994, Pub. L. 103-33, 

Title VIII, § 80001, 108 Stat. 1796 (Sept. 13, 1994). “The intent, clear 

from the face of the [provision], [wa]s to provide a ‘safety valve’ so 

that less culpable offenders [we]re not subject to mandatory 

minimums.” United States v. McFarlane, 81 F.3d 1013, 1014 (11th 

Cir. 1996). For almost a quarter of a century, the criminal history 

criteria of the “safety valve” provision remained unchanged.

A 

In November of 2018, Senator Chuck Grassley—together 

with 11 fellow Senators serving as original co-sponsors—

introduced a bill in the Senate that would, as relevant here, change 

the criminal history criteria for “safety valve” relief. That bill, as 

drafted, did not become law. But its proposed language for the 

revised version of 18 U.S.C. § 3553(f)(1) remained unchanged when 

2 There are no entries for “and” in the 2019 edition of Black’s Law Dictionary 

or in the 2016 edition of Merriam-Webster’s Dictionary of Law.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 40 of 85
19-14650 JORDAN, J., Dissenting 6

the First Step Act was passed a month later—subsections (f)(1)(A), 

(f)(1)(B), and (f)(1)(C) were connected by the word “and.” See The 

First Step Act, S. 3649, § 402(B) (“Broadening of Existing Safety 

Valve”), 115th Cong., 2d Sess. (Nov. 15, 2018).3

The Senate Committee on the Judiciary—through Senator 

Grassley and his co-sponsors—published a summary of what S. 

3649 was meant to do. With respect to the proposed amendment 

of the criminal history criteria of the “safety valve” provision, they 

explained that the broadened version would still limit relief to 

defendants with little or no criminal history: 

This section expands the existing safety valve to 

include offenders with up to four criminal history 

points, excluding 1-point offenses, such as minor 

misdemeanors. However, offenders with prior “3 

point” felony convictions (sentences exceeding one 

year and one month) or prior “2 point” violent 

offenses (violent offenses with sentences of at least 60 

days) will not be eligible for the safety valve absent a 

judicial finding that those prior offenses substantially 

overstate the defendant’s criminal history and danger 

of recidivism.

3 So that the reader can compare it with § 3553(f)(1), a copy of § 402 of S. 3649 

is attached as an appendix.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 41 of 85
19-14650 JORDAN, J., Dissenting 7

Senate Committee on the Judiciary, “The First Step Act of 2018 (S. 

3649)—as introduced,” p. 2 (Nov. 15, 2018) (emphasis added).4 

So, according to the Senators who proposed the language 

that ultimately became § 3553(f)(1) with no changes, a defendant 

who had more than 4 criminal history points, or a 3-point offense, 

or a 2-point violent offense would not be eligible for “safety valve” 

treatment. In other words, the “and” in the new subsections 

(f)(1)(A)-(C)—the word we are debating in this case—was meant to 

be disjunctive, and not conjunctive.5

“Legislative history is not the law, but [it] can help us 

understand what the law means.” Robert A. Katzmann, Judging 

Statutes 38 (2014). When a statutory term is unclear, certain types 

of legislative materials—if probative of intent or purpose—can help 

courts figure out the better (or more appropriate) reading of the 

term. “Traditionally,” then, “the Supreme Court and other federal 

courts have routinely considered statements by sponsors when 

relevant to an issue of statutory interpretation.” William N. 

Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes 

and the Constitution 246 (2016).6 

4 A copy of the summary prepared by the Senate Committee on the Judiciary 

is also attached as an appendix. 

5 It is also telling that the Senators who introduced S. 3649 used the words 

“conviction,” “offense,” and “sentence” interchangeably. 

6 Although the Supreme Court may have recently turned away from 

legislative materials in a number of cases, that course is “remarkable in light 

of the close analogy to constitutional materials, where the . . . Court cites and 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 42 of 85
19-14650 JORDAN, J., Dissenting 8

I do not suggest that the collective view of Senator Grassley 

and his Senate co-sponsors is determinative as to the meaning of 

“and.” But I do submit that it is relevant. See, e.g., Digit. Realty 

Tr., Inc. v. Somers, 138 S. Ct. 767, 777-78 (2018) (considering 

legislative materials concerning a statute’s purpose in determining 

the meaning of a statutory term); Anderson v. Cagle’s, Inc., 488 

F.3d 945, 958 (11th Cir. 2007) (considering a sponsor’s statement 

about the purpose of a proposed statutory amendment). 

After all, “[i]f a statute is to make sense, it must be read in 

the light of some assumed purpose. A statute merely declaring a 

rule, with no purpose or objective, is nonsense.” Karl N. 

Llewellyn, Remarks on the Theory of Appellate Decision and the 

Rules or Canons about How Statutes Are to Be Construed, 3 Vand. 

L. Rev. 395, 400 (1950). Our job is to “ascertain the . . . intention 

of [Congress],” and in “order to do this” we are sometimes 

“compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’’ as 

meaning ‘or.’” Fisk, 70 U.S. at 447. 

B 

“[C]ommon sense is not irrelevant in construing statutes.” 

Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1312 (11th Cir. 

debates The Federalist Papers as though they were barnacles attached to the 

Constitution.” Eskridge, Interpreting Law, at 247. And if the majority is able 

to rely on sources like the Senate’s legislative drafting manual, I don’t see why 

the collective view of those who drafted and proposed what became § 

3553(f)(1) is taboo. 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 43 of 85
19-14650 JORDAN, J., Dissenting 9

2013). Here a disjunctive reading of “and” in § 3553(f)(1) makes a 

lot of sense. 

As Judge Branch convincingly explains, if the word “and” is 

read conjunctively—so that a defendant is disqualified from “safety 

valve” relief only if he has more than 4 criminal history points 

(subsection (f)(1)(A)), and a 3-point offense (subsection (f)(1)(B)), 

and a 2-point violent offense (subsection (f)(1)(C))—then 

subsection (f)(1)(A) is rendered superfluous. Why? Because a 

defendant who has both a 3-point offense and a violent 2-point 

offense—two of the three required criteria according to the 

majority—necessarily has more than 4 criminal history points. No 

matter what math one uses, 3 + 2 = 5, and subsection (f)(1)(A) 

becomes meaningless.7 

We “are obliged to give effect, if possible, to every word 

Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), 

and reading “and” disjunctively seems like a small linguistic price 

to pay to avoid making subsection (f)(1)(A) superfluous. See 1A 

Norman Singer, Sutherland on Statutory Construction § 21:14 (7th 

ed. & Nov. 2020 update). Given the choices available, it is better 

to read a word in its non-usual (but legally permissible) sense than 

to render a statutory provision meaningless. As we have done 

7 Things would be markedly different if, for example, subsection (f)(1)(A) said 

“more than 6 criminal history points” because then a defendant with a single 

3-point offense and a single 2-point violent offense would not have 6 criminal 

history points. In that example, subsection (f)(1)(A) would still have 

independent effect. 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 44 of 85
19-14650 JORDAN, J., Dissenting 10

before, I would resolve the case on that basis. See Peacock , 252 

F.2d at 893 (construing the word “and” as “or” in order to prevent 

a provision from being “read . . . out of the statute”). 

III

As I read § 3553(f)(1)(A)-(C), Mr. Garcon was ineligible for 

“safety valve” relief because he had a prior 3-point offense. With 

respect, I dissent from the majority’s contrary conclusion. 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 45 of 85
BRANCH, Circuit Judge, dissenting, in which GRANT and BRASHER,

Circuit Judges, join, and JORDAN, Circuit Judge, joins as to Part I, II, 

III.A, and III.B:

The safety-valve provision of the First Step Act permits a 

sentencing court to disregard an otherwise applicable statutory 

minimum sentence for qualifying defendants. See 18 U.S.C. 

§ 3553(f). Subsection (f)(1), one of five enumerated subsections 

that a defendant must meet to qualify for safety-valve relief, 

provides that a court must find that a “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;

18 U.S.C. § 3553(f)(1) (emphasis added). The question we must 

answer in this appeal is how to interpret the “and” in subsection 

(f)(1)—a question that, as it turns out, is the subject of much debate 

in several of our sister circuits.1 

1

The Fifth, Seventh, Eighth, and Ninth Circuits have addressed this issue. See, 

e.g., United States v. Palomares, 52 F.4th 640 (5th Cir. 2022); United States v. 

Pace, 48 F.4th 741(7th Cir. 2022); United States v. Pulsifer, 39 F.4th 1018 (8th 

Cir. 2022), petition for cert. filed, (U.S. Oct. 12, 2022) (No. 22-340); United 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 46 of 85
19-14650 BRANCH, J., Dissenting 2

A circuit split now exists on this issue. On the one hand, the 

Ninth Circuit has held that the “and” in § 3553(f )(1) is conjunctive 

such that a defendant must possess all three criminal history criteria 

to be disqualified. United States v. Lopez, 998 F.3d 431 (9th Cir. 

2021). On the other hand, the Fifth, Eighth, and Seventh Circuits 

have held that a defendant who possesses any one of the specified 

criminal history criteria is disqualified, albeit by reaching this 

conclusion in different ways. The Fifth Circuit and Eighth Circuit 

held that the “and” bears a conjunctive but distributive meaning; 

the Seventh Circuit held that the “and” is disjunctive. See United 

States v. Palomares, 52 F.4th 640, 643–45 (5th Cir. 2022); United 

States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022); United States 

v. Pace, 48 F.4th 741, 754–55 (7th Cir. 2022). Thus, the interpretive 

question of first impression presented in our circuit is not as simple 

as the Majority makes it out to be, and the Majority’s decision 

today—which sides with the Ninth Circuit—only deepens the 

circuit split. 

I dissent because the Majority’s interpretation is contrary to 

the structure and context of the statute. And it creates two 

surplusage problems. First, it renders an entire subsection—

States v. Lopez, 998 F.3d 431 (9th Cir. 2021), petition for reh’g en banc

pending. Similar appeals remain pending in the Fourth, Sixth, and Tenth 

Circuits. See, e.g., United States v. Jones, case no. 21-4605 (4th Cir.) (oral 

argument pending); United States v. Haynes, case no. 22-5132 (6th Cir.) (oral 

argument held Oct. 20, 2022); United States v. Kolkman, case no. 22-8004 (10th 

Cir.) (oral argument held Nov. 17, 2022).

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 47 of 85
19-14650 BRANCH, J., Dissenting 3

(f)(1)(A)—redundant. 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.” Once context and structural cues are considered, 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). Accordingly, I would hold that Garcon 

is ineligible for safety-valve relief because he has a disqualifying 3-

point offense under § 3553(f)(1)(B). 

I. Background 

The facts surrounding Garcon’s underlying conviction are 

not relevant to this appeal. Suffice it to say, Garcon pleaded guilty 

to a drug offense which carried a statutory minimum sentence. In 

an attempt to avoid the statutory minimum, Garcon sought refuge 

in the safety-valve provision of § 3553(f), as amended by the First 

Step Act of 2018, which instructs district courts to impose a 

sentence pursuant to the Sentencing Guidelines without regard to 

any applicable statutory minimum sentence if the court finds that 

the defendant meets certain requirements. 

As amended by the First Step Act of 2018, the safety-valve 

provision provides:

Notwithstanding any other provision of law, in the 

case of an offense under [various drug-related 

statutes], the court shall impose a sentence pursuant 

to guidelines promulgated by the United States 

Sentencing Commission . . . without regard to any 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 48 of 85
19-14650 BRANCH, J., Dissenting 4

statutory minimum sentence, if the court finds at 

sentencing, after the Government has been afforded 

the opportunity to make a recommendation, 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

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 49 of 85
19-14650 BRANCH, J., Dissenting 5

(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.

18 U.S.C. § 3553(f) (2018).2 The first safety-valve requirement, 

§ 3553(f)(1), is the one at issue.

In the district court proceedings below, Garcon argued that 

the “and” in subsection (f)(1)(B) was conjunctive, meaning that a 

defendant is eligible for safety-valve relief so long as he does not 

have all three specified criminal history characteristics in 

§ 3553(f)(1)(A)–(C). The government, on the other hand, argued 

that if a defendant has any one of the three criminal history 

2

Prior to the First Step Act amendment, § 3553(f)(1) disqualified any defendant 

from safety-valve relief who had “more than 1 criminal history point, as 

determined under the sentencing guidelines.” See 18 U.S.C. § 3553(f)(1) 

(2016). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 50 of 85
19-14650 BRANCH, J., Dissenting 6

characteristics in § 3553(f)(1)(A)–(C), then he is ineligible for safetyvalve relief. The district court determined that § 3553(f)(1) was 

unambiguous, and “[t]he plain meaning of the statute require[d] all 

three subsections . . . to be met before the defendant becomes 

ineligible for safety valve [relief].” The district court noted that its 

reading “create[d] an absurd result,” but that it was bound to apply 

the plain language of the statute. 

The government appealed, arguing that, when examined in 

the broader context of the statute as whole, the only reasonable 

interpretation was that the “and” in § 3553(f)(1) operated 

disjunctively. A unanimous panel of this Court held that the plain 

text of the statute was clear because context and the canon against 

surplusage dictated that the “and” in § 3553(f)(1) did not bear its 

ordinary conjunctive meaning. United States v. Garcon, 997 F.3d 

1301, 1304–06 (11th Cir. 2021), vacated, 23 F.4th 1334 (11th Cir. 

2022). Rather, textual and structural indicators revealed that the 

“and” is disjunctive. Id. at 1305–06. Garcon petitioned for 

rehearing en banc. This Court voted to grant rehearing en banc, 

vacated the panel opinion, and directed the parties to brief one 

question: “Did the district court err in concluding that defendant 

Julian Garcon met the safety-valve-eligibility requirement set forth 

at 18 U.S.C. § 3553(f)(1).” United States v. Garcon, 23 F.4th 1334 

(11th Cir. 2022). 

Before the en banc court, the government argued that the 

“and” is conjunctive but distributive and that the preceding “does 

not have” qualifier in § 3553(f)(1) independently applied to each of 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 51 of 85
19-14650 BRANCH, J., Dissenting 7

the disqualifying criminal history characteristics listed in (A)–(C). 

Alternatively, the government maintained that the prior panel 

correctly determined that the “and” in § 3553(f)(1) is disjunctive. 

Under either scenario, the result is the same—if a defendant 

possesses any one of the specified criminal history characteristics, 

then he is ineligible for safety-valve relief.

The Majority now holds that the “and” in § 3553(f)(1) is 

conjunctive, reasoning that the conjunctive meaning is compelled 

by the plain text of the statute under the ordinary meaning canon 

of statutory construction and the canon of consistent usage. Under 

the Majority’s holding, defendants like Garcon, who possess one or 

two of the disqualifying criminal history characteristics in 

§ 3553(f)(1) are eligible for safety-valve relief—i.e., to be sentenced 

below an otherwise applicable statutory minimum—as long as the 

defendant does not have all three criminal history characteristics. 

In other words, the Majority’s interpretation requires that in all 

cases a district court impose a sentence consistent with the 

Sentencing Guidelines, without regard to any statutory minimum 

sentence, if the district court finds that “the defendant does not 

have” “as determined under the sentencing guidelines” more than 

4 criminal history points, excluding 1-point offenses, AND a prior 

3-point offense, AND a prior 2-point violent offense. 

But giving “and” in § 3553(f)(1) a conjunctive meaning as the 

Majority does violates the text of the statute and renders an entire 

subsection superfluous. Accordingly, I would hold that, 

considering the context and structure of the statute, the best 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 52 of 85
19-14650 BRANCH, J., Dissenting 8

reading of § 3553(f)(1) is that a defendant is ineligible for safetyvalve relief if he has any one of the three disqualifying criminal 

history characteristics set forth in § 3353(f)(1)’s safety-valve 

eligibility checklist. Thus, Garcon would be ineligible for safetyvalve relief because he has a disqualifying 3-point offense under 

§ 3553(f)(1)(B). Consequently, I respectfully dissent because the 

Majority’s interpretation is contrary to the text of the statute when 

considered in context and violates the canon against surplusage. 

My dissent proceeds in four parts. First, I start where all 

issues of statutory interpretation must—with the text of the 

statute, guided by the interpretive canons of statutory 

construction. Second, I explain how the Majority’s conjunctive 

interpretation renders a portion of the statute superfluous. Third, 

I explain other problems presented by the Majority’s 

interpretation. Lastly, I explain why the rule of lenity does not 

apply. 

II. Standard of Review 

Issues of statutory interpretation are reviewed de novo. 

United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 

2012). In conducting statutory interpretation, “we do not look at 

one word or term in isolation but rather look to the entire statute 

and its context.” Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 53 of 85
19-14650 BRANCH, J., Dissenting 9

2010); In re Walter Energy, Inc., 911 F.3d 1121, 1143 (11th Cir. 

2018) (same). 

III. Discussion 

A. Context demonstrates that the “and” in 

subsection (1) of the safety-valve statute is 

disjunctive

In determining the meaning of the safety-valve requirement 

in § 3553(f)(1), our “starting point . . . is the language of the statute 

itself.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 

U.S. 102, 108 (1980); see also United States v. DBB, Inc., 180 F.3d 

1277, 1281 (11th Cir. 1999) (“The starting point for all statutory 

interpretation is the language of the statute itself.”). 

In this case, we must interpret how the word “and” operates 

in the eligibility checklist in 18 U.S.C. § 3553(f)(1). “[O]ur authority 

to interpret statutory language is constrained by the plain meaning 

of the statutory language in the context of the entire statute, as 

assisted by the canons of statutory construction.” Edison, 604 F.3d 

at 1310. 

Pursuant to the ordinary-meaning canon—the “most 

fundamental semantic rule of interpretation”—words are 

presumed to bear “their ordinary, everyday meanings.” Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 69 (2012). The Majority is certainly correct that “and” 

is ordinarily defined as “along with or together with”—carrying 

with it a conjunctive meaning. See And, Webster’s Third New Int’l 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 54 of 85
19-14650 BRANCH, J., Dissenting 10

Dictionary (2005). Thus, the word “and” is presumed to bear its 

ordinary conjunctive meaning. See Am. Bankers Ins. Grp. v. 

United States, 408 F.3d 1328, 1332 (11th Cir. 2005). But the 

conjunctive presumption given the term “and” by the ordinarymeaning canon is rebuttable. Although words are presumed to 

bear their ordinary meaning, context can dictate otherwise. Scalia 

& Garner, supra, at 70; see also Am. Bankers Ins., 408 F.3d at 1332 

(explaining that “the word ‘and’ is presumed to be used in its 

ordinary sense, that is, conjunctively,” “unless the context dictates 

otherwise”). Accordingly, rather than viewing the term “and” in 

isolation, we must “look to the entire statutory context,” DBB, Inc., 

180 F.3d at 1281, and we must “give effect, if possible, to every 

word Congress used,” Reiter v. Sonotone Corp., 442 U.S. 330, 339 

(1979). Indeed, statutory interpretation “is a holistic endeavor. A 

provision that may seem ambiguous in isolation is often clarified 

by the remainder of the statutory scheme . . . .” United Sav. Ass’n 

of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 

(1988). Once context and structural cues are considered, the best 

reading of the “and” in § 3553(f)(1) is that it operates disjunctively. 

It is well established that “there is more to ‘and’ than meets 

the eye.” Shaw v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 605 

F.3d 1250, 1253 (11th Cir. 2010) (quoting OfficeMax, Inc. v. United 

States, 428 F.3d 583, 588 (6th Cir. 2005)). For “the word ‘and’ is not 

a word with a single meaning”; like a “chameleon[], it takes its 

color from its surroundings.” Peacock v. Lubbock Compress Co., 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 55 of 85
19-14650 BRANCH, J., Dissenting 11

252 F.2d 892, 893 (5th Cir. 1958).3 As a result,“[c]ourts are often 

compelled to construe ‘or’ as meaning ‘and,’ and again ‘and’ as 

meaning ‘or.’”4 Id. (quoting United States v. Fisk, 70 U.S. 445, 447 

3 Decisions issued by the former Fifth Circuit before October 1, 1981, are 

binding precedent in our Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 

1207 (11th Cir. 1981) (en banc).

4 Judge Newsom’s concurrence implies that I am breaking new ground by 

construing “and” to mean “or.” Newsom, J., Concurring Op. at 3 (“Put 

simply, just as no amount of canon-based massaging could make ‘white’ mean 

‘black’ or ‘up’ mean ‘down,’ none can make the word ‘and’ mean ‘or.’”). Not 

so. Rather, as we noted in Peacock—like it or not—courts often face imperfect 

drafting and, as a result, “are often compelled to construe ‘or’ as meaning 

‘and,’ and again ‘and’ as meaning ‘or.’” Peacock, 252 F.2d at 893 (quoting 

United States v. Fisk, 70 U.S. 445, 447 (1865)); see, e.g., Confederated Tribes 

& Bands of Yakama Nation v. Yakima Cnty., 963 F.3d 982, 990 (9th Cir. 2020) 

(“[J]ust because the ordinary meaning of ‘and’ is typically conjunctive does not 

mean ‘and’ cannot take on other meaning in context. Indeed, ‘and’ can also 

mean ‘or’ in some circumstances.” (internal citation omitted)); OfficeMax, Inc.

v. United States, 428 F.3d 583, 588 (6th Cir. 2005) (explaining that in the tax 

code, “Congress used ‘and’ in more than one sense . . . giving it a conjunctive 

meaning (requiring all items) in some places and giving it a disjunctive or 

cumulative meaning (allowing any of the items) in other places”); United 

States v. Hodge, 321 F.3d 429, 436 (3d Cir. 2003) (holding that “or” in 21 U.S.C. 

§ 802(32) is conjunctive); United States v. Gomez-Hernandez, 300 F.3d 974, 

978–79 (8th Cir. 2002) (holding that the “and” in the “crime of violence” 

definition in U.S.S.G. § 2L1.2(b)(1)(A) is disjunctive), abrogated on other 

grounds by, Descamps v. United States, 570 U.S. 254 (2013); Bruce v. First Fed. 

Sav. & Loan Ass’n of Conroe, Inc., 837 F.2d 712, 714–17 (5th Cir. 1988) 

(holding that the term “and” in 12 U.S.C. § 1464(q)(1) is disjunctive); see also 

Bryan A. Garner, A Dictionary of Modern Legal Usage 55 (2d ed. 1995) 

(“Oddly, and is frequently misused for or where a singular noun, or one of two 

nouns, is called for. . . . Sloppy drafting sometimes leads courts to recognize 

that and in a given context means or, much to the chagrin of some judges.”).

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 56 of 85
19-14650 BRANCH, J., Dissenting 12

(1865)); see also e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct. 

1134, 1141 (2018) (examining whether the word “or” in a statute 

was disjunctive or conjunctive); Noell v. Am. Design, Inc., 764 F.2d 

827, 833 (11th Cir. 1985) (“It is an established principle that the 

word ‘or’ is frequently construed to mean ‘and,’ and vice versa, in 

order to carry out the evident intent of the parties.” (quotation 

omitted)). Thus, “every use of ‘and’ or ‘or’ as a conjunction 

involves some risk of ambiguity.” Shaw, 605 F.3d at 1253 

(quotation omitted). Accordingly, although the word “and” carries 

a presumption that it bears a conjunctive meaning, that 

presumption can be overcome by context. 

When interpreting a statute—and certainly where, as here, 

there is more than one reasonable interpretation of a statutory 

term—we can look to the canons of statutory construction as a 

guide. “The canons assist the Court in determining the meaning 

of a particular statutory provision by focusing on the broader, 

statutory context.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 

F.3d 1217, 1225 (11th Cir. 2001). Looking at the entire statutory 

context and adhering to our obligation to give effect to every word, 

if possible, that Congress used, there is a strong contextual basis for 

reading the “and” in § 3553(f)(1) disjunctively. Quite simply, the 

statutory context establishes that if the “and” is read conjunctively, 

then subsection (A) is rendered superfluous. Specifically, for each 

criminal history criterion in subsections (A), (B), and (C), Congress 

included the language, “as determined under the sentencing 

guidelines.” If a defendant has a prior 3-point offense “as 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 57 of 85
19-14650 BRANCH, J., Dissenting 13

determined under the sentencing guidelines” under subsection (B), 

and a prior 2-point violent offense “as determined under the 

sentencing guidelines” under subsection (C), then it follows that he 

necessarily has 5 criminal history points—i.e., more than 4 criminal 

history points, excluding any 1-point offenses for purposes of 

subsection (A) “as determined under the sentencing guidelines.” 

Thus, if the “and” in § 3553(f)(1) is read conjunctively, then 

subsection (A) has no independent operation and is superfluous. 

On the other hand, reading “and” disjunctively avoids rendering 

subsection (A) superfluous and gives every part of § 3553(f)(1) 

meaning.

It is a well-established principle that interpretations that 

cause a provision to have no consequence or to duplicate another 

provision should be avoided. See Scalia & Garner, supra, at 174–

79. Accordingly, “[i]f a provision is susceptible of (1) a meaning 

that gives it an effect already achieved by another provision, or that 

deprives another provision of all independent effect, and 

(2) another meaning that leaves both provisions with some 

independent operation, the latter should be preferred.” Id. at 176; 

see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (explaining 

that construing a statute so as to avoid rendering any clause, 

sentence, or word “superfluous, void, or insignificant” “is a cardinal 

principle of statutory construction” (quotations omitted)). The 

surplusage canon “is strongest when[, as here,] an interpretation 

would render superfluous another part of the same statutory 

scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 58 of 85
19-14650 BRANCH, J., Dissenting 14

Accordingly, I would hold that the “and” in § 3553f)(1) is 

disjunctive.5 

Consequently, I agree with the Seventh Circuit that the 

conjunctive interpretation advanced by Garcon and adopted by the 

5

I note that the distributive approach advanced by the government and 

endorsed by the Eighth and Fifth Circuits is an equally strong interpretation 

given the context and structure of § 3553(f)(1), and it renders the same result 

as the disjunctive reading. As we have recognized, when used as a 

conjunctive, the word “and” “can be used either ‘jointly’ (e.g., “both A and B”) 

or ‘severally’ (e.g., “A and B meaning A or B, or both”).” Shaw, 605 F.3d at 

1254 (alterations adopted) (quotation omitted). Here, if the conjunctive “and” 

is read in its distributive “several” sense—as the Eighth Circuit and Fifth 

Circuit have held—then, as with a disjunctive reading of “and,” a defendant 

similarly is ineligible for safety-valve relief if he has any one of the three 

disqualifying criminal history characteristics in § 3553(f)(1). See Palomares, 

52 F.4th at 643–45 (holding that the “and” in § 3553(f)(1) is distributive “such 

that ‘does not have’ independently applies to each item in” § 3553(f)(1)(A)–

(C)); Pulsifer, 39 F.4th at 1021 (explaining that as applied to § 3553(f)(1), the 

“‘distributive’ sense of the word [‘and’] would mean that the requirement that 

a defendant ‘does not have’ certain elements of criminal history is distributed 

across the three subsections, and a defendant is ineligible if he fails any one of 

the three conditions.”).

As the Fifth Circuit explained in Palomares, § 3553(f) as a whole 

“contains a list of affirmative requirements” that a defendant must satisfy to 

be eligible for safety-valve relief. Palomares, 52 F.4th at 644. But the statute 

“opens with a negative prefatory phrase coupled with an em-dash (‘does not 

have—’) followed by a conjunctive list (A, B, and C).” Id. at 642. Thus, the 

grammatical structure of § 3553(f) distributes the phrase “‘does not have’” to 

“each item in the list (does not have (A), does not have (B), and does not have 

(C)).” Id. at 643. I agree with the Fifth Circuit that this distributive 

interpretation is a natural reading of the statute, and it avoids violating the 

canon against surplusage.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 59 of 85
19-14650 BRANCH, J., Dissenting 15

Majority “creates more problems than solutions and renders a 

portion of the statute superfluous.” Pace, 48 F.4th at 754; see also 

Palomares, 52 F.4th at 645(explaining that under a conjunctive 

interpretation of “and” “[§] 3553(f)(1)(A) would be surplusage”). 

The Majority adheres too rigidly to the ordinary-meaning and 

consistent usage canons,6 at the expense of the “cardinal principle 

of statutory construction that a statute ought, upon the whole, to 

be so construed that, if it can be prevented, no clause, sentence, or 

word shall be superfluous, void, or insignificant.” TRW Inc., 534 

U.S. at 31 (quotations omitted); see also Parker Drilling Mgmt. 

Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (explaining that 

it is a “cardinal principle of interpretation that courts must give 

effect, if possible, to every clause and word of a statute” (quoting 

Loughrin v. United States, 573 U.S. 351, 358 (2014))). It is true that 

the canons of construction “are not mandatory rules.” Chickasaw 

Nation v. United States, 534 U.S. 84, 94 (2001) (quotation omitted). 

But here, it is possible to give effect to every word of a statute—

but only by adopting a disjunctive reading of “and.” As a result, we 

should give the canon against surplusage particular weight. 

6

Related to the ordinary-meaning canon is the canon of consistent usage, 

which is the general principle that a term ordinarily bears the same meaning 

each time it is used in a given statute. Scalia & Garner, supra, at 170–73. 

Similar to the ordinary-meaning canon, “the presumption of consistent usage 

readily yields to context.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014) 

(quotation omitted). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 60 of 85
19-14650 BRANCH, J., Dissenting 16

As for the consistent usage and ordinary-meaning canons, 

“[s]pecific canons are often countered by some maxim pointing in 

a different direction.” Id. (alteration adopted) (quotation omitted). 

See also Scalia & Garner, supra, at 59. Such is the case here.7 

B. The Majority’s conjunctive interpretation 

renders parts of the statute superfluous

As explained previously, reading “and” in a conjunctive 

(non-distributive) sense as the Majority does renders subsection (A) 

superfluous because a defendant who has a prior 3-point offense 

under subsection (B) and a prior 2-point violent offense under 

subsection (C) will necessarily have more than 4 criminal history 

points for purposes of subsection (A). No one disputes that 3+2=5. 

7

The Majority contends that its conjunctive interpretation is “buttressed” by 

section 302(a) of the Senate’s Legislative Drafting Manual because it directs 

that “and” should be used “to indicate that a thing is included in the class only 

if it meets all of the criteria.” Office of Legislative Counsel, U.S. Senate, Legis. 

Drafting Manual § 302(a) (1997). See https://law.yale.edu/sites/default/

files/documents/pdf/Faculty/SenateOfficeoftheLegislativeCounsel_Legislat

iveDraftingManual%281997%29.pdf. I am skeptical as a general matter of the 

value of the legislative drafting manual as an interpretative aid—it is 

infrequently and rarely relied upon by courts (by my count it has been cited in 

only 15 published opinions in the Supreme Court and across the circuits). 

Further, it is clear that Congress does not strictly abide by its provisions. 

Indeed, the Majority ignores that subsection (c) of section 302 also provides 

that “[i]n a statement in the negative, ‘or’ is almost always the correct 

word . . . .” Id. § 302(c). Section 3553(f)(1) is just such a statement in the 

negative, yet Congress used “and,” thereby contradicting the express guidance 

of the drafting manual. Given that Congress does not adhere to the guidance 

of the drafting manual, its value as an interpretive aid is negligible at best.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 61 of 85
19-14650 BRANCH, J., Dissenting 17

Rather, Garcon and the Majority attempt to avoid the superfluity 

problem with subsection (A) by proffering the misguided 

explanation that “prior offenses” which do not score criminal 

history points for purposes of subsection (A) should nonetheless be 

scored and considered 3-point offenses or 2-point violent offenses 

for purposes of § 3553(f)(1)(B) and (C).8 Under this sometimes-wecount-sometimes-we-don’t theory, a prior offense could be 

“worth” criminal history points for purposes of § 3553(f)(1)(B) and 

(C) but actually add no points to the defendant’s criminal history 

score for purposes of § 3553(f)(1)(A) due to either the age of the 

offense or the single-sentence rule.9 I disagree for several reasons.

8 I note that the unanimous panel in the Eighth Circuit squarely rejected this 

approach. See Pulsifer, 39 F.4th at 1020. And it was not endorsed by the 

majorities in either Pace or Palomares—however, the dissenting judges in 

both Pace and Palomares embrace the same theory that Garcon and the 

Majority here advance. Pace, 48 F.4th at 763–64 (Wood, J., dissenting in part); 

Palomares, 52 F.4th at 655–56 (Willett, J., dissenting). 

9 Although the Ninth Circuit in Lopez held that the “and” in § 3553(f)(1) is 

conjunctive and that there was no surplusage problem with subsection (A), it 

did so for very different reasons than the Majority adopts here. 998 F.3d at 

436–40, petition for reh’g en banc pending. A majority of the Ninth Circuit 

held that a three-point offense under subsection (B) could simultaneously 

satisfy subsection (C) if it was for a violent offense, leaving a defendant with 

less than 4 criminal history points for purposes of (A)—meaning subsection A 

was not superfluous. Id. at 440. Notably, neither Garcon nor the Majority 

here pursued the Lopez line of reasoning in this case. And for good reason—

the problem with the Lopez majority’s reasoning, as noted by Judge M. Smith, 

who concurred in part, dissented in part, and concurred in the judgment in 

Lopez, is that the Lopez majority’s reasoning effectively “rewrites the plain 

language of subsection (C) to read “a prior violent offense of at least 2 points.” 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 62 of 85
19-14650 BRANCH, J., Dissenting 18

First, this approach violates the plain text of the statute. As 

discussed previously, for each criterion in subsections (A), (B), and 

(C), Congress included the language, “as determined under the 

sentencing guidelines.” 18 U.S.C. § 3553(f)(1)(A)–(C). In other 

words, Congress’s directive is clear—in determining whether “a 

defendant does not have” (A) “more than 4 criminal history points, 

excluding any criminal history points from 1-point offenses,” (B) “a 

prior 3-point offense,” and (C) “a prior 2-point violent offense,” 

courts should consult and follow the directives of the sentencing 

guidelines when determining whether the defendant has the 

disqualifying criminal history specified in § 3553(f)(1)(A)–(C). See 

Gall v. United States, 552 U.S. 38, 50 n.6 (2007) (explaining in the 

context of another subsection of § 3553 that “[t]he fact that 

§ 3553(a) explicitly directs sentencing courts to consider the 

Guidelines supports the premise that district courts must begin 

their analysis with the Guidelines and remain cognizant of them 

throughout the sentencing process”); Conn. Nat’l Bank v. 

Germain, 503 U.S. 249, 253 (1992) (“[C]ourts must presume that a 

legislature says in a statute what it means and means what it says 

there.”); Palomares, 52 F.4th at 646 (explaining that Congress 

“explicitly incorporated the Sentencing Guidelines by reference” in 

Id. at 445 (M. Smith, J., concurring in part, dissenting in part, and concurring 

in the judgment) (emphasis added); see also Palomares, 52 F.4th at 645–46 

(holding that the Lopez majority’s reasoning “violates the plain wording of 

§ 3553(f)(1)(C)” and disregards the “as determined under the sentencing 

guidelines” language in the statute).

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 63 of 85
19-14650 BRANCH, J., Dissenting 19

§ 3553(f)(1)). The Majority’s inclusion of “prior offenses” that do 

not score criminal history points for purpose of § 3553(f)(1)(B) and 

(C) violates Congress’s plain directive. 

Second, the Majority’s theory that subsection (A) of 

§ 3553(f)(1) is not superfluous if “and” is read conjunctively is 

premised on the idea that Congress introduced a new concept of 

“prior offense” in § 3553(f)(1) because the sentencing guidelines are 

framed around “prior sentences,” not “prior offenses.” I disagree. 

The sentencing guidelines clearly contemplate that a “prior 

sentence” is synonymous with and shorthand for a “prior offense.” 

The Majority is ignoring that the guidelines define “prior sentence” 

to mean “any sentence previously imposed upon adjudication of 

guilt, whether by guilty plea, trial, or plea of nolo contendere, for 

conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1) 

(emphasis added). In other words, a “prior sentence” previously 

imposed for conduct not part of the instant offense is a “prior 

offense.” 

Indeed, it is clear from other sections of the guidelines that 

the term “prior sentence” is synonymous with a “prior offense.” 

See, e.g., U.S.S.G. § 2L1.2 cmt. (n.6) (explaining that a departure 

based on the seriousness of a “prior offense” may be warranted in 

certain circumstances, including when “the prior conviction is too 

remote to receive criminal history points (see § 4A1.2(e)))”; Id.

§ 4A1.2(a)(2) (explaining that “[p]rior sentences always are counted 

separately if the sentences were imposed for offenses that were 

separated by an intervening arrest (i.e., the defendant is arrested for 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 64 of 85
19-14650 BRANCH, J., Dissenting 20

the first offense prior to committing the second offense”)) 

(emphasis added); Id. § 4A1.2(c)(1) (explaining that “[s]entences for 

the following prior offenses . . . are counted only if . . . .”) (emphasis 

added). Furthermore, we have consistently understood “prior 

sentences” as used in the guidelines to be synonymous with a 

defendant’s prior offenses of conviction. See United States v. 

Glover, 154 F.3d 1291, 1293 n.3 (11th Cir. 1989) (“Section 4A1.1 

assigns criminal history points for certain prior convictions based 

on a variety of factors, including the length of the sentence of 

imprisonment imposed.”); United States v. Orozco, 121 F.3d 628, 

630 (11th Cir. 1997) (“Under the sentencing guidelines, criminal 

history points are assigned for prior criminal convictions.”).

Third, the Majority has crafted an unusual approach that 

would involve assigning criminal history points to a defendant’s 

“prior offense” where that offense did not otherwise receive 

criminal history points “as determined under the sentencing 

guidelines.” But the statute points specifically to the sentencing 

guidelines, which do no such thing. Rather, Chapter 4 of the 

guidelines determines, for all circumstances, whether a prior 

offense receives criminal history points, and it directs that certain 

prior offenses are not counted. Section 4A1.1 specifies when points 

are added to “prior sentences” for purposes of calculating a 

defendant’s criminal history score:

The total points from subsections (a) through (e) 

determine the criminal history category in the 

Sentencing Table in Chapter Five, Part A.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 65 of 85
19-14650 BRANCH, J., Dissenting 21

(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.

(emphasis added). And § 4A1.2 and the commentary to § 4A1.1—

which operate in tandem and must be read together—provide 

when sentences are counted or not counted for purposes of 

§ 4A1.1(a)–(e). U.S.S.G. § 4A1.1 cmt. (n.1); see also United States 

v. Walker, 912 F.2d 1365, 1366 (11th Cir. 1990) (holding that 

“sections 4A1.1 and 4A1.2 must be read together”). Those rules 

provide that sentences of a certain age are not counted, U.S.S.G. 

§ 4A1.2(e), and that multiple prior sentences imposed on the same 

day or stemming from the same charging document are treated as 

a single sentence, id. § 4A1.2(a)(2). Thus, the sentencing guidelines 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 66 of 85
19-14650 BRANCH, J., Dissenting 22

make clear that a court cannot “add” criminal history points for a 

prior sentence, but then not count those points for purposes of 

determining the criminal history score. 

By including the language “as determined under the 

sentencing guidelines” in subsections (A), (B), and (C), Congress 

plainly directed courts to consult and follow the directives of the 

sentencing guidelines when determining whether the defendant 

has the disqualifying criminal history specified in § 3553(f)(1)(A)–

(C). Based on the statutory language and the text of the guidelines, 

I do not believe that Congress introduced a new concept of “prior 

offense” in § 3553(f)(1). Rather, I agree with the Eighth Circuit that 

Congress’s use of “prior offense” in the statute was simply “a form 

of common sense-shorthand . . . that incorporated the 

determinations of criminal history points under USSG § 4A1.1.” 

Pulsifer, 39 F.4th at 1020. Consequently, the Majority’s 

explanation for why subsection (A) is not superfluous under its 

conjunctive reading of the “and” in § 3553(f)(1) cannot stand, and 

it is left with a significant surplusage problem. 

C. In addition to surplusage, the Majority’s 

interpretation presents other fundamental problems

Surplusage is not the only problem with the Majority’s 

interpretation. In order to accept the Majority’s sometimes-wecount-sometimes-we-don’t theory, we would have to effectively 

rewrite subsections (B) and (C) in one of two ways. Specifically, 

for the Majority’s theory to work, we would have to remove the 

“as determined under the sentencing guidelines” language from 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 67 of 85
19-14650 BRANCH, J., Dissenting 23

§ 3553(f)(1)(B) and (C) because, as discussed previously, under the 

sentencing guidelines prior offenses of a certain age or that were 

treated as part of a single sentence do not receive points; therefore, 

in order for these unscored prior offenses to be a 3-point offense or 

a 2-point violent offense for purposes of (B) and (C), the “as 

determined under the sentencing guidelines” language must be 

removed. Alternatively, if no language is removed, then for the 

Majority’s theory to work, we would need to add language to the 

statute—i.e.,“a prior 3-point offense, as determined under the 

guidelines, regardless of whether the offense was counted ” or “a 

prior 3-point offense as determined solely under § 4A1.1 of the 

guidelines without regard to the counting rules of the guidelines.” 

But adding words to or removing words from a statute is a task 

which the judiciary is not at liberty to undertake. See Friends of 

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1224 (11th 

Cir. 2009) (“[W]e are not allowed to add or subtract words from a 

statute; we cannot rewrite it.”); see also Blount v. Rizzi, 400 U.S. 

410, 419 (1971) (“[I]t is for Congress, not this Court, to rewrite the 

statute.”). Thus, § 3553(f)(1) cannot support the strained reading 

that Garcon and the Majority advance to support its conjunctive 

“and” interpretation. 

While I disagree with much of the Majority’s analysis, I note 

that we agree that its conjunctive (non-distributive) interpretation 

of “and” does not produce truly absurd results for purposes of 

invoking the absurdity canon. That is, if the text were clear in 

supporting the Majority’s reading, then the resulting absurdity 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 68 of 85
19-14650 BRANCH, J., Dissenting 24

alone would not be a reason to vary from the text. See Small v. 

United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting) 

(explaining that “[w]e should employ [the] canon [against 

absurdities] only where the result of applying the plain language 

would be, in a genuine sense, absurd, i.e., where it is quite 

impossible that Congress could have intended the result . . . and 

where the alleged absurdity is so clear as to be obvious to most 

anyone” (quotation omitted)). Nevertheless, I note that under the 

Majority’s interpretation virtually every criminal defendant will 

pass § 3553(f)(1)’s requirements and qualify for safety-valve relief, 

including serious, repeat violent offenders. The only defendants 

excluded under the Majority’s interpretation are those that have 

more than 4 criminal history points, AND a prior 3-point offense, 

AND a prior 2-point violent offense—a unique criminal history 

cocktail to be sure. In other words, there is no limit on the number 

of criminal history points or three point-offenses or two-point 

violent offenses a defendant may have, as long as he does not have 

all three components of the criminal history cocktail. See also 

Pace, 48 F.4th at 755 (concluding that the conjunctive 

interpretation “produces absurd results” because it would “afford 

leniency to defendants with more serious offenses (those serious 

enough to receive three criminal history points) while denying 

safety-valve eligibility to the defendants with less serious offenses 

that received only two points”).

Although the Majority suggests that the government’s 

concern that serious, repeat violent offenders will qualify for safetyUSCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 69 of 85
19-14650 BRANCH, J., Dissenting 25

valve relief is unfounded because § 3553(f)(2)–(5) will often 

disqualify those types of defendants, the Majority ignores that 

subsections (f)(2)–(5) disqualify defendants based on conduct in 

connection with the instant offense. In contrast, subsection (f)(1) 

is the only subsection focused on a defendant’s prior criminal 

history. Accordingly, (f)(2)–(5) do not operate to disqualify 

offenders with a serious, repeat, or violent criminal history from 

safety-valve relief. The application of the Majority’s theory to 

Garcon demonstrates this point. Garcon had three criminal history 

points, but four 3-point offenses for purposes of subsection (B) (one 

prior offense that scored 3 points and three older ones that did not), 

and two 1-point offenses (that did not score points due to age). Yet, 

he still qualifies for safety-valve relief under the Majority’s 

interpretation. In fact, even if Garcon had 20 3-point prior offenses 

(totaling 60 criminal history points), he would qualify for safetyvalve relief because he does not have a 2-point violent offense. 

Thus, the government has a legitimate concern that serious, repeat 

offenders—even defendants with prior convictions for murder—

may qualify for safety-valve relief. 

Accordingly, although the ordinary meaning and the 

consistent usage canons of statutory construction advanced by the 

Majority may counsel in favor of its conjunctive interpretation, 

those principles of interpretation are cabined by the statutory 

context and countered by the canon against surplusage, which 

point us in a different direction. A disjunctive interpretation, by 

contrast, gives full effect to each of the provisions in § 3553(f)(1), 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 70 of 85
19-14650 BRANCH, J., Dissenting 26

better adhering to the text of the statute by giving each provision 

its full effect. Consequently, the ordinary-meaning canon and the 

related consistent usage canon marshaled by the Majority must 

readily yield to context. 

D. The Rule of Lenity Does Not Apply

As a final point, the Majority concludes that if the canons of 

statutory construction lend toward two different interpretations, 

then we are left with an ambiguous statute and the rule of lenity 

would apply, such that we would be compelled to construe “and” 

using its conjunctive approach. The Majority is wrong. 

“The rule of lenity is a canon of statutory construction that 

requires courts to construe ambiguous criminal statutes narrowly 

in favor of the accused.” United States v. Watts, 896 F.3d 1245, 

1255 (11th Cir. 2018) (quotation omitted). When the rule of lenity 

applies, it prevents a court from “giv[ing] the text a meaning that is 

different from its ordinary, accepted meaning, and that disfavors 

the defendant.” Burrage v. United States, 571 U.S. 204, 216 (2014). 

“The simple existence of some statutory ambiguity, 

however, is not sufficient to warrant application of [the rule of 

lenity], for most statutes are ambiguous to some degree.” 

Muscarello v. United States, 524 U.S. 125, 138 (1998). The Supreme 

Court has affirmed repeatedly that the mere fact that canons of 

statutory construction may point in different directions or that it is 

possible to articulate a narrower construction of a statute do not 

render a statute ambiguous for purposes of invoking the rule of 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 71 of 85
19-14650 BRANCH, J., Dissenting 27

lenity. Moskal v. United States, 498 U.S. 103, 108 (1990); United 

States v. Shabani, 513 U.S. 10, 17 (1994); Smith v. United States, 508 

U.S. 223, 239 (1993). Similarly, “[a] statute is not ‘ambiguous’ for 

purposes of lenity merely because there is a division of judicial 

authority over its proper construction.” Reno v. Koray, 515 U.S. 

50, 64 (1995) (quotations omitted). Rather, the rule of lenity is 

reserved for when “grievous ambiguity” remains “even after resort 

to ‘the language and structure, legislative history, and motivating 

policies of the statute.’” Moskal, 498 U.S. at 108 (quoting Bifulco 

v. United States, 447 U.S. 381, 387 (1980)); see also Barber v. 

Thomas, 560 U.S. 474, 488 (2010); Chapman v. United States, 500 

U.S. 453, 463 (1991); Shular v. United States, 140 S. Ct. 779, 788 

(2020) (Kavanaugh, J., concurring). A grievous ambiguity exists 

when, after applying all the tools of statutory interpretation, “the 

Court must simply guess as to what Congress intended.’” Barber, 

560 U.S. at 488 (quoting Bifulco, 447 U.S. at 387). As a result, “the 

rule of lenity rarely comes into play.” Shular, 140 S. Ct. at 788 

(Kavanaugh, J., concurring) (emphasis added).

The Majority faithfully cites the grievous ambiguity 

standard, but then applies it incorrectly. According to the Majority, 

even though—in its view—numerous tools of statutory 

construction point toward its interpretation, if the canon against 

surplusage points toward the government’s interpretation, then 

the rule of lenity would apply and require us to give the word “and” 

its ordinary, conjunctive meaning. But the grievous ambiguity 

standard is not the toothless one that the Majority applies. The rule 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 72 of 85
19-14650 BRANCH, J., Dissenting 28

of lenity has no application in the absence of grievous ambiguity in 

the statute, and one tool of statutory construction pointing in a 

different direction does not mean that there is a grievous ambiguity 

in the statute. Moskal, 498 U.S. at 108; Shabani, 513 U.S. at 17; 

Smith, 508 U.S. at 239. Here, after considering the structure and 

context of the statute and applying the traditional tools of statutory 

construction, a best reading of “and” in § 3553(f)(1) clearly 

emerges. To the extent there remains ambiguity in § 3553(f)(1), it 

is far from grievous. Accordingly, the rule of lenity has no role to 

play in the interpretation of § 3553(f)(1), and I agree with the Fifth 

and Seventh Circuits on this point. See Palomares, 52 F.4th at 647; 

Pace, 48 F.4th at 755 (rejecting the argument that the rule of lenity 

applied and explaining that the two interpretations of “and” in 

§ 3553(f)(1) were not “equally plausible”). The Majority’s dicta 

about the rule of lenity runs afoul of the Supreme Court’s teachings 

on the rule. If the Majority were to faithfully apply the rule, it too 

would conclude that the rule has no application here.

E. Conclusion

A disjunctive interpretation of “and” in § 3553(f)(1) is 

supported by the traditional rules of statutory construction and 

gives meaning to every clause of the statute (without requiring the 

mental gymnastics or rewriting of the statute that the Majority’s 

conjunctive interpretation requires). Accordingly, I would hold 

that the “and” in § 3553(f)(1) is disjunctive. However, regardless of 

whether the court reads the “and” in § 3553(f)(1) as disjunctive or 

distributive, the best reading of § 3553(f)(1) is that it bars safetyUSCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 73 of 85
19-14650 BRANCH, J., Dissenting 29

valve relief for defendants who have any one of the enumerated 

criminal history characteristics in (A)–(C). Thus, Garcon is 

ineligible for safety-valve relief because he has a disqualifying 3-

point offense under § 3553(f)(1)(B), and I would vacate his sentence 

and remand for resentencing. The Majority’s interpretation is 

contrary to the text of the statute when considered in context and 

renders portions of the statute superfluous. Consequently, I 

respectfully dissent. 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 74 of 85
BRASHER, Circuit Judge, Dissenting:

I join Judge Branch’s dissent. I write separately to make a 

comment on criminal-history-based sentencing and to give some 

advice to district judges about how to deal with the majority’s 

decision. 

Federal sentencing policy is, to a significant extent, based on 

the idea that we should impose harsher sentences on people with 

more significant crimes in their past. The upshot is that two people 

can commit the same crime in the same way in the same place on 

the same day, but they will receive markedly different sentences if 

they have committed a different number or type of crimes in the 

past. This policy is built into the sentencing guidelines, where the 

severity of sentences increases based on the accumulation of 

criminal history points. See U.S.S.G. § 4.1.1 et seq. And it is 

reflected in important federal statutes that impose mandatory 

minimums for offenders based on criminal history—the number of 

crimes committed in the past, the severity of the crime, the 

violence associated with those crimes, etc. See, e.g., 18 U.S.C. § 

924(e); 21 U.S.C. § 841(b)(1)(A)(viii).

There is no question that this sentencing scheme is 

constitutional. See Ewing v. California, 538 U.S. 11 (2003). People 

who commit more serious and more violent crimes in the past are 

likely to commit more serious and more violent crimes in the 

future. And statistics tell us that it takes a longer sentence to deter 

and rehabilitate a repeat criminal as compared to a first-time 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 75 of 85
19-14650 BRASHER, J., Dissenting 2 

offender. So it is perfectly rational to account for an offender’s 

criminal history when imposing a sentence for a new offense.

But I am concerned that the federal courts are increasingly 

turning this rational system into an arbitrary and capricious game 

of gotcha. The judicial elimination of the residual clause of the 

Armed Career Criminal Act, for instance, has led courts to impose 

its mandatory minimums in a difficult-to-justify way. Here’s an 

example: For purposes of counting previous convictions towards 

the mandatory minimum, a court must treat a previous conviction 

for an attempted robbery as nonviolent, even if the victim is shot 

and killed during the attempt; but a court must treat a previous 

conviction for a successful robbery as violent, even if it was 

committed with a handwritten note. See United States v. Taylor, 

142 S. Ct. 2015 (2022). I could go on with more examples, but the 

problem has already been catalogued elsewhere. See generally id.

at 2026 (Thomas, J., dissenting); Borden v. United States, 141 S. Ct. 

1817, 1855-57 (2021) (Kavanaugh, J., dissenting).

Now our Court has adopted a reading of the safety valve 

that makes the most violent and recidivist criminals eligible for a 

sentence below the mandatory minimum. If two people commit 

the same crime, why should the one with decades of 3-point 

violent felony convictions receive a lower sentence than the one 

whose past crimes are a single 3-point nonviolent offense and a 2-

point violent misdemeanor? See Rosenbaum, Concurring Op., at

3–5; Branch, Dissenting Op., at 23-26; United States v. Pace, 48 

F.4th 741, 755 (7th Cir. 2022). The majority opinion has no 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 76 of 85
19-14650 BRASHER, J., Dissenting 3 

justification for such a result, and neither do I. Under the Court’s 

decision, only an unusually hapless defendant with an odd 

combination of past offenses will be subject to a mandatory 

minimum because of his criminal history. I fear that, if we keep 

going down this path, our criminal-history-based sentencing 

scheme will become so arbitrary as to raise serious questions about 

its constitutionality. See Chapman v. United States, 500 U.S. 453, 

464–65 (1991) (under the Due Process Clause of the Fifth 

Amendment, a sentence may not be based “on an arbitrary 

distinction”). And I think this possibility is another point in favor of 

Judge Branch’s perfectly reasonable reading of the statute.

With all of that in mind, here is my advice for district judges: 

The Court’s opinion gives you discretion to sentence offenders 

with serious and violent criminal histories to sentences below the 

applicable mandatory minimum. But you shouldn’t do it. Your job 

is getting more difficult. Because of this opinion, you will have to 

calculate sentencing ranges under the guidelines that presume 

some offenders will be eligible for significantly lower sentences 

than they should justifiably receive. See United States v. Quirante, 

486 F.3d 1273, 1275-76 (11th Cir. 2007). But no one in the majority 

has suggested that you should actually sentence repeat criminals as 

if they were first-time offenders. “[S]afety valve eligibility does not 

guarantee [a defendant] a below-statutory minimum sentence; it 

just gives the court the opportunity to sentence below the 

minimum if it believes it is appropriate.” United States v. Owens, 

38 F.4th 1, 3 (8th Cir. 2022). “[A] court compelled to disregard a 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 77 of 85
19-14650 BRASHER, J., Dissenting 4

mandatory minimum sentence in favor of the guidelines range” by 

the safety valve “may vary upward to and even past the mandatory 

minimum point after considering the § 3553(a) factors—so long as 

the final sentence is reasonable.” Quirante, 486 F.3d at 1276.

The Court’s decision deepens a circuit split that is sure to 

attract the attention of the Supreme Court. In the meantime, if a 

criminal defendant has a serious 3-point offense or a 2-point violent 

offense in his past, a district judge should carefully consider 

exercising his or her discretion to impose a sentence at the 

otherwise applicable mandatory minimum.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 78 of 85
66 

•S 3649 PCS

1 felony drug offense has become final, such person 

2 shall be sentenced to a term of imprisonment of not 

3 less than 20 years’’ and inserting ‘‘If any person 

4 commits such a violation after a prior conviction for 

5 a serious drug felony or serious violent felony has 

6 become final, such person shall be sentenced to a 

7 term of imprisonment of not less than 15 years’’; 

8 and 

9 (2) in paragraph (2), in the matter following 

10 subparagraph (H), by striking ‘‘felony drug offense’’ 

11 and inserting ‘‘serious drug felony or serious violent 

12 felony’’. 

13 (c) APPLICABILITY TO PENDING CASES.—This sec14 tion, and the amendments made by this section, shall 

15 apply to any offense that was committed before the date 

16 of enactment of this Act, if a sentence for the offense has 

17 not been imposed as of such date of enactment. 

18 SEC. 402. BROADENING OF EXISTING SAFETY VALVE. 

19 (a) AMENDMENTS.—Section 3553 of title 18, United 

20 States Code, is amended— 

21 (1) in subsection (f)— 

22 (A) in the matter preceding paragraph 

23 (1)— 

24 (i) by striking ‘‘or section 1010’’ and 

25 inserting ‘‘, section 1010’’; and 


daltland on DSKBBV9HB2PROD with BILLS

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 79 of 85
67 

•S 3649 PCS

1 (ii) by inserting ‘‘, or section 70503 or 

2 70506 of title 46’’ after ‘‘963)’’; 

3 (B) by striking paragraph (1) and insert4 ing the following: 

5 ‘‘(1) the defendant does not have— 

6 ‘‘(A) more than 4 criminal history points, 

7 excluding any criminal history points resulting 

8 from a 1-point offense, as determined under the 

9 sentencing guidelines; 

10 ‘‘(B) a prior 3-point offense, as determined 

11 under the sentencing guidelines; and 

12 ‘‘(C) a prior 2-point violent offense, as de13 termined under the sentencing guidelines;’’; and 

14 (C) by adding at the end the following: 

15 ‘‘Information disclosed by a defendant under this sub16 section may not be used to enhance the sentence of the 

17 defendant unless the information relates to a violent of18 fense.’’; and 

19 (2) by adding at the end the following: 

20 ‘‘(g) INADEQUACY OF CRIMINAL HISTORY.— 

21 ‘‘(1) IN GENERAL.—If subsection (f) does not 

22 apply to a defendant because the defendant does not 

23 meet the requirements described in subsection (f)(1) 

24 (relating to criminal history), the court may, upon 

25 prior notice to the Government, waive subsection 


daltland on DSKBBV9HB2PROD with BILLS

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 80 of 85
68 

•S 3649 PCS

1 (f)(1) if the court specifies in writing the specific 

2 reasons why reliable information indicates that ex3 cluding the defendant pursuant to subsection (f)(1) 

4 substantially overrepresents the seriousness of the 

5 defendant’s criminal history or the likelihood that 

6 the defendant will commit other crimes. 

7 ‘‘(2) PROHIBITION.—This subsection shall not 

8 apply to any defendant who has been convicted of a 

9 serious drug felony or a serious violent felony, as 

10 those terms are defined in section 102 of the Con11 trolled Substances Act (21 U.S.C. 802). 

12 ‘‘(h) DEFINITION OF VIOLENT OFFENSE.—As used 

13 in this section, the term ‘violent offense’ means a crime 

14 of violence, as defined in section 16, that is punishable 

15 by imprisonment.’’. 

16 (b) APPLICABILITY.—The amendments made by this 

17 section shall apply only to a conviction entered on or after 

18 the date of enactment of this Act. 

19 SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, 

20 UNITED STATES CODE. 

21 (a) IN GENERAL.—Section 924(c)(1)(C) of title 18, 

22 United States Code, is amended, in the matter preceding 

23 clause (i), by striking ‘‘second or subsequent conviction 

24 under this subsection’’ and inserting ‘‘violation of this subVerDate Sep 11 2014 23:01 Nov 26, 2018 Jkt 089200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\S3649.PCS S3649

daltland on DSKBBV9HB2PROD with BILLS

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 81 of 85
	
 




 

 !"# $%&'$ () *+ "!$ ,-./011023453/01102 601789:;<=>?@A@B@CACD

CBE>DB>DFGCFHD@I@AJKCDFCD>LCD=I@I-MHE-N>B@O>=

PI@AJBE>M>BB>D3NQ3M>BB>DF>BEC=:RCD>S-FHM>TUUA>L3

NCDAVVHD>G>=>IUUW>L0AJM-A=VV:7QHE>AITIM-IE>IT-A=

-HCIBDCHE>I-D>@JACD>=:

,N.WX602</Y:;<B>DFN>J@AA@AJL@BE-APF>D-M

,>:J:UUZ3ECPDLCD[=-QVV.HD>G>=>I-MMB>DFIN>J@AA@AJ

L@BE-M>BB>D:

$%&\$ !]^"_$ ,-.`W a0W02</:;`A-M@IBC?GD@B>D@-BE-BIH>G@?@>I

-GM-IIC?BE@AJI;

,b.PI>UUCDVVN>BL>>ABE>A>SB3BC3M-IBGD@B>D@CA

-A=BE>M-IBGD@B>D@CABC@A=@G-B>BE-B-BE@AJ@I@A3

GMP=>=@ABE>GM-II@?@BF>>BIbCDFCD>C?BE>GD@3

B>D@-c-A=

,K.PI>UU-A=VVBC@A=@G-B>BE-B-BE@AJ@I@A3

GMP=>=@ABE>GM-IICAMQ@?@BF>>BI-MMC?BE>GD@B>D@-:

,N.901026`W`Wa 170 d8220d1 d8WeXWd1`8W

R286 d8W10f1:;`AFCIBGCAB>SBITBE>GCDD>GBGCAgPAG3

B@CAG-AD>-=@MQN>=>B>DF@A>=?DCFBE>GCAB>SBTBE-B@IT

BE>I>AI>C?BE>M>J@IM-B@CA-A=BE>IBDPGBPD>@ALE@GEBE>

M@IB-HH>-DI:

,G.Y1<1060W1Y `W 170 W0a<1`h0:;`A-IB-B>3

F>AB@ABE>A>J-B@i>TUUCDVV@I-MFCIB-ML-QIBE>GCDD>GB

jklmnolpqrstuvw USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 82 of 85
 




 	


 !"#$$%#&""%'%())(*"&*+

,-'".&*&*".,!(%',!.(&*/0(1

1234 5678345997:9;

<1859 9=>2:4?5995@8:36 5A5 5:9;

3124=@8:?;

&15B C:B:438;5*"D""!."%+

E&(.'"!&"FG.%(*",.F'"

(E.-.,"&E&"&(H&"#.F/'*,-.!"!+

"!%(*#.F,.F'"*-F<

G"!.*.--1G"!.,"&E&"&(

&&1:I3?28:; !9,".F#.F

#.0.*"("-&&/-(,!-("".&*

".,!(.*%',!.(/0(

@19=87 5=B9;

&1=B: =4 ?=4: 36 5A5 5:9; 

%#&".%(*",.F'"<#G

"!.,"&E&"&(H'($$)).(&*"!G--&*

D.#%-J$$ !9,".F#.F#.0.*"(

"-&&/-(,!-(:.,!(,!-(!.--'(

"!.*""".&*".,!(%',!.(

/0())

&&1388 36 5A5 5:9; %#&".

%(*",.F'".--.**"G"!.*

.--1G"!.,"&E&"&(H'($$.*)).(&*"!

G--&*D.#%-J$$ !9,".F#.F

#.0..*"".*-&&/-(,!- !

KLMNOPMQRSTUVWX USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 83 of 85
11/15/2018

The First Step Act of 2018 (S.3649) – as introduced

Grassley, Durbin, Lee, Whitehouse, Graham, Booker, Scott, Leahy, Ernst, Klobuchar, Moran, Coons

Reducing Federal Recidivism and Crime

 Provides for increased programming designed to reduce recidivism and provides incentives for participation in 

those programs. 

 Implements a post-sentencing dynamic risk assessment system to determine an inmate’s risk of committing 

more crimes upon release from prison. 

 Establishes eligibility criteria for and incentivizes participation in evidence-based recidivism reduction 

programs by allowing prisoners to earn time credits for prerelease custody (defined as residential reentry 

centers or, for low risk prisoners, home confinement). For example, a prisoner may earn 10 days of time credit 

for every 30 days of successful participation in a recidivism-reduction program or other eligible activity. 

However, only prisoners classified as minimum or low risk may redeem these time credits to reduce their 

sentence.

 In addition to the exclusion preventing all but those classified as minimum or low risk from redeeming time 

credits, the bill makes clear that violent and high-risk criminals convicted of certain serious offenses are

ineligible for the pre-release custody program, including those convicted of crimes relating to terrorism, 

murder, sexual exploitation of children, espionage, violent firearms offenses, or those that are organizers, 

leaders, managers, supervisors in the fentanyl and heroin drug trade. Prisoners are also ineligible to apply 

time credits if subject to a final order of removal under the Immigration and Nationality Act. 

Preparing Inmates for Successful Return to Society

 Provides more meaningful employment and training opportunities for inmates by expanding the federal 

prison industries program.

 Requires the Bureau of Prisons (BOP) to submit a report and evaluation of the current pilot program to treat 

heroin and opioid abuse through medication—assisted treatment.

 Extends the compassionate elderly release provision from the Second Chance Act that allows the prisoner to 

request for his or her compassionate release if he or she meets the requirements set out in the law.

 Codifies BOP’s rules that generally prohibit the use of restraints on pregnant inmates except those who are an 

immediate and credible flight risk or threat of harm to herself or others.

 Mandates inmates be housed no more than 500 miles from the prisoner’s primary residence and grants 

authority for prisoners to save earnings in an escrow account used for pre-release expenses, such as 

transportation and housing. 

 Clarifies the formula by which the BOP calculates good time credit (time off for good behavior) in line with 

original Congressional intent. Under current law, prisoners can earn up to 54 days per year for good behavior 

in prison, but technicalities in the law keep prisoners on early release from utilizing those days.

Enhancing Prison Security and Officer Safety

 Requires the Director of BOP to provide a secure storage area outside the secure perimeter for employees to 

store firearms or to allow for vehicle lock boxes for firearms.

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 84 of 85
11/15/2018

 Directs the Director of BOP to provide de-escalation training as part of the regular training requirements of 

correctional officers.

Reforming Federal Criminal Sentencing

 Clarification of 18 U.S.C. § 924(c) – S.1917 Section 104 applied prospectively: This section clarifies that the 

enhanced mandatory minimum sentence for using a firearm during a crime of violence or drug crime is 

limited to offenders who have previously been convicted and served a sentence for such an offense. 

Previously the courts interpreted this law intended for repeat offenders as applying also to first-time 

offenders, sometimes requiring courts to impose overly harsh, decades-long sentences for charges brought in 

a single indictment.

 Reform to 21 U.S.C. 841 & 851 - S.1917 Section 101 applied prospectively: The section focuses the toughest 

criminal sentencing on serious drug felons and expands the definition of serious violent felons to enhance the 

sentences of violent criminals. Maximum penalties remain in place. Mandatory minimum penalties are 

reduced to permit some additional judicial discretion, but not eliminated. The three-strike penalty is reduced 

from life imprisonment to 25 years, and the 20-year minimum is reduced to 15 years. But while the 

mandatory minimum for the three-strike penalty is reduced, it is also adjusted to apply to the worst 

criminals—including, for the first time, to violent felons. The third-strike penalty currently applies only to 

offenders with prior drug felonies. This penalty now applies to all offenders convicted of a serious drug 

felony or a serious violent felony.

 Expansion of existing federal safety valve for mandatory minimum sentencing – S.1917 Section 102 applied 

prospectively: This section expands the existing safety valve to include offenders with up to four criminal 

history points, excluding 1-point offenses, such as minor misdemeanors. However, offenders with prior “3 

point” felony convictions (sentences exceeding one year and one month) or prior “2 point” violent offenses 

(violent offenses with sentences of at least 60 days) will not be eligible for the safety valve absent a judicial 

finding that those prior offenses substantially overstate the defendant’s criminal history and danger of 

recidivism. Consistent with existing law, a judge cannot apply the safety valve unless the defendant has fully 

cooperated with law enforcement and has not used or threatened to use violence or firearms, caused death 

or serious bodily injury, or was an organizer, leader, manager, or supervisor of others in connection with the 

offense.

 Retroactive Application of the Fair Sentencing Act of 2010 – S.1917 Section 105: This section allows prisoners 

sentenced before the Fair Sentencing Act of 2010 reduced the 100-to-1 disparity in sentencing between crack 

and powder cocaine to petition the court for an individualized review of their case. This reform would bring 

sentences imposed prior to 2010 in line with sentences imposed after the Fair Sentencing Act was passed. 

Other Reforms

 Immigration Fix. The bill clarifies that prisoners subject to a final order of removal under 8 U.S.C. 1101, 

including illegal immigrants, are not eligible to apply time credits.

 Fentanyl and Heroin Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving 

time credits under the First Step Act who were convicted of fentanyl or heroin offenses involving 5 and 10

year mandatory minimums and who were organizers, leaders, managers or supervisors in the offense.

 Firearm Offense Exclusion. Upon input from law enforcement, the bill excludes prisoners from receiving time 

credits under the First Step Act who brandish or discharge firearms. Those who committed a felony with 

possession of a firearm are also excluded if they are repeat offenders who have already taken advantage of 

recidivism programming under the First Step Act. 

 Crimes Against Children Exclusion. Offenders who have committed serious crimes against children will not be 

able to shorten their sentences. This includes anyone convicted of sex trafficking of children (18 U.S.C. § 

1591), sexual abuse of a child (18 U.S.C. §§ 2243, 2244(c)), child pornography offenses (18 U.S.C. §§ 2251, 

2252, 2252A, 2260), buying and selling of children (18 U.S.C. § 2251A), or the recruitment of child soldiers (18 

U.S.C. § 2442). 

USCA11 Case: 19-14650 Document: 72-1 Date Filed: 12/06/2022 Page: 85 of 85