Federal ‘Safety Valve’ Ruling a Good One

December 16, 2022

Once upon a time, but not too long ago, President Clinton, a Yale Law School grad, famously stated during questioning, “it depends on what the meaning of the word ‘is’ is.”

 In our case of the week, the Eleventh Circuit in United States v. Julian Garcon, 2022 U.S. App. LEXIS 33588*(filed December 6, 2022) sitting en banc addressed the question of whether the word “and” means “and” in the language allowing for “safety-valve” relief in the First Step Act, which empowers a federal district court to impose sentence below the mandatory minimum sentence. See 18 U.S.C. § 3553(f)(1) (relief 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.”) (emphasis added). Julian Garcon pleaded guilty to attempting to possess at least 500 grams of cocaine with the intent to distribute. He had a prior 3-point offense, U.S.S.G. § 4A1.1(a), but did not have more than 4 criminal history points or a prior 2-point violent offense. U.S.S.G. § 4A1.1(b). The district court concluded that Garcon remained eligible for relief under the First Step Act because he did not have all three characteristics, and the majority of the Eleventh Circuit panel agreed that the conjunctive term “and” joins together the three characteristics enumerated in the statute, § 3553(f)(1), supra, and a defendant must have all three factors before becoming ineligible for the relief.

Dissenting Judge Jordan wrote separately to explain that the word “and” can be read disjunctively depending on the context of the legal text and to set out the views of the Senators who proposed the provision that became § 3553(f)(1), supra. Judge Jordan gave the examples of a defendant who has seven (7) prior 3-point felony offenses (but no 2-point violent offenses) and a defendant who has five (5) prior violent 2-point offenses (but no 3-point offenses), both of whom would be eligible for relief under the majority reading of “and” in the conjunctive. Judge Jordan much doubted that Congress envisioned such  outcomes when it revised the criminal history portion of the “safety valve”provision in the First Step Act of 2018.

Notwithstanding the apparent ambiguity that resulted in the Eleventh Circuit convening en banc and three dissenters, the majority of the en banc panel found that, even though the government submitted that the legislative history supports its interpretation, there exists no need to consult that history. Explaining that the role of legislative history is “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), it found that the legislative history plays no role here because the meaning of “and” in § 3553(f)(1) is unambiguous. Hedging its opinion, the majority opinion found that even if there were some ambiguity, “the need for fair warning” to an accused, Crandon v. United States, 494 U.S. 152, 160 (1990), “preclude[s] resolution of the ambiguity against [Garcon] on the basis of . . . legislative history,” see Hughey v. United States, 495 U.S. 411, 422 (1990).

While this decision of the Eleventh Circuit sitting en banc was defense-friendly, there is exists a split among the circuits, which may require attention from the U.S. Supreme Court to resolve the circuit split, or from the U.S. Congress, which may or may not wish to amend the statutory language.

Schedule A Free Consulation