[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12620

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

versus

HERIBERTO CASTILLO, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00190-MSS-SPF-3

____________________

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2 Opinion of the Court 23-12620

Before ROSENBAUM,GRANT, and TJOFLAT, 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 District Court erred in 

sentencing Castillo below the statutory minimum term of ten 

years’ imprisonment. The 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 safetyvalve 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 [the 

United States Sentencing Guidelines] . . . without regard to any statutory minimum sentence, if the court 

finds at sentencing . . . , that—

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23-12620 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 controlling 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 abrogates the reasoning in Garcon by rejecting a conjunctive reading of the word 

“and” in § 3553(f )(1) that would “join[] three features of a 

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defendant’s criminal history points into a single disqualifying characteristic.” Id. at 133, 144 S. Ct. 726. Instead, the Court concludes

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

safety-valve relief. Id.; see also United States v. Morley, 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 District Court erred in granting 

Castillo safety-valve relief and sentencing him below the statutory 

minimum sentence. Accordingly, we vacate Castillo’ssentence and 

remand for further proceedings.

VACATED AND REMANDED.

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