[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________ No. 23

- 12620 Non

- Argument Calendar

____________________ UNITED STATES OF AMERICA, Plaintiff

- Appellant, versus HERIBERTO CASTILLO, Defendant

- Appellee.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22

- cr - 00190
- MSS

- SPF

- 3

____________________ USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 1 of 42 Opinion of the Court 23
- 12620 Before R OSENBAUM , G RANT , and T JOFLAT , Circuit Judges. PER CURIAM : The government appeals Heriberto Castillo’s 84
- month sentence for conspiring to distribute and possess with the intent to distribute 5 kilograms or more of cocaine and 40 grams or more of fentanyl , and for possessing with the intent to distribute 5 kilograms or more of cocaine . It argues that the D istrict C ourt erred in sentencing Castillo below the statutory minimum term of ten years’ imprisonment. T he government contends that , considering the U.S. Supreme Court’s decision in Pulsifer v. United States , 601 U.S. 124 , 144 S. Ct. 718 (2024), Castillo was ineligible for safety

valve relief because he had two prior three

- point offenses, for a total of six qualifying criminal

- history points
. We agree. When reviewing a district court’s safety

- valve decision, we review factual determinations for clear error and legal interpretations of the statutes and Sentencing Guidelines de novo
. United States v. Milkintas , 470 F.3d 1339, 1343 (11th Cir. 2006). The safety

- valve provision in 18 U.S.C. § 3553(f ) provides that, for certain enumerated offenses, including offenses under 21 U.S.C. §§ 841 and 846 , The court shall impose a sentence pursuant to [theUnited States Sentencing Guidelines] . . . without regard to any statutory minimum sentence, if the court finds at sentencing
. . . , that

— USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 2 of 423
- 12620 Opinion of the Court 3 (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[.] 18 U.S.C. § 3553(f )(1)(A)

– (C) (emphasis added). In United States v. Garcon , we held that the word “and” in § 3553(f )(1) was conjunctive and that a defendant must have all three enumerated disqualifying criminal

- history characteristics

— more than four qualifying criminal

- history points, a three

- point offense, and a prior two

- point violent offense

— before he becomes ineligible for safety

- valve relief. 54 F.4th 1274, 1278 (11th Cir. 2022 ) ( en banc ), abrogated by Pulsifer , 601 U.S. at 132 & n. 1 , 144 S. Ct. 725
. Garcon , which was decided in December 2022, was c ontrolling law at the time of Castillo’s July 2023 sentencing and the government’s appeal. After we decided Garcon , the U.S. Supreme Court held that § 3553(f )(1) “creates an eligibility checklist” that demands a defendant satisfy each condition before he is eligible for safety

- valve relief. 601 U.S. at 132 , 144 S. Ct. 726
. Pulsifer expressly abrogate s the reasoning in Garcon by rejecting a conjunctive reading of the word “and” in § 3553(f )(1) that would “join[] three features of a USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 3 of 44 Opinion of the Court 23
- 12620defendant’s criminal history points into a single disqualifying characteristic.” Id. at 133 , 144 S. Ct. 726 . Instead, the Court conclude s that the word “and” joins each criminal

- history characteristic in § 3553(f )(1) to the introductory phrase “does not have.” See id. at 134

– 37, 150

– 53 , 144 S. Ct. 726

– 29, 735

– 37 . In other words, a defendant is eligible for safety

- valve relief if he does not have more than four criminal

- history points, does not have a prior three

- point offense, and does not have a prior two

- point violent offense. Id. at 153 , 144 S. Ct. at 737
. The presence of any of the three criminal

history characteristics in § 3553(f )(1) disqualifies a defendant from safety

- valve relief. Id. ; see also United States v. Morl e y , 99 F.4th 1328, 1343 (11th Cir. 2024) (noting Pulsifer ’s abrogation of Garcon and finding that “a defendant who has any of the three criminal

- history components under § 3553(f )(1) is disqualified from safety valve sentencing relief ” (emphasis in original)). Under Pulsifer , Castillo is ineligible for safety

- valve relief because he has more than four qualifying criminal

- history points and a prior three

- point offense
. The D istrict C ourt erred in granting Castillo safety

- valve relief and sentencing him below the statutory minimum sentence. Accordingly, we vacate Castillo’s sentence and remand for further proceedings
. VACATED AND REMANDED. USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 4 of 4