Contact Us

Appellate Courts Split on Application of Safety Valve

The Ninth and Eleventh Circuits came to a Circuit Split on the application of the Safety Valve.

The Safety Valve Application, Generally

The Safety Valve is a portion of federal sentencing law that allows  a person to receive a sentence under   a mandatory minimum given certain conditions.  There are five parts of the “safety valve application.”  Those five parts are found in 18 U.S.C. 3553(f) which says:

...The court shall impose a sentence pursuant to guidelines …without regard to any 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

(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..

Subsection 1 was recently amended by the FIRST STEP Act.  Subsection 1 has to do with a person’s criminal history.  The key thing here is the and in subsection 1 paragraph b.  It says “a prior 3-point offense, as determined under the sentencing guidelines; AND

The Circuit Split

The Courts have varied with regard to the application of the Safety Valve post-FSA. The rulings have included the following:

Lopez (9th Cir):  Court used statuory interpretation and Canon Against Surplusage  to determine that "and" meant that “to be eligible [for statutory relief], you you must prove that you have not A, B, and C…A conjunctive negative proof requires a person to prove that he or she does not meet A, B, and C, cumulatively.”


Garcon's case:  Eleventh Circuit, No. 19-14650

The 11th circuit came to a different decision in Garcon.  Garcon pled guilty to a drug crime that would have led to a five year mandatory minimum sentence.  Like the district court in Lopez, the court stated that “the “and” in § 3553(f)(1)(A)–(C) as conjunctive, meaning that Garcon was only disqualified from safety valve relief due to his prior convictions if he met all three subsections of § 3553(f)(1) or, in other words, if he had (1) more than four criminal history points, excluding any points resulting from one-point offenses; (2) a prior three-point offense; and (3) a prior two-point violent offense.”

The court found that he was eligible for relief because he only had one three point offense.  However, “the district court conceded that its reading would lead to an absurd result that Congress could not have intended. The government appealed.”

Statutory Interpretation Helpers:

Canon Against Surplusage

The 11th circuit stated that the canon against surplusage was violated here.  “If we read the “and” conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total.  Because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points. Thus, Garcon’s suggested reading violates a canon of statutory interpretation, the canon against surplusage.”

This is the same canon that the 9th Circuit stated was not applicable to Lopez.  The canon of surplusage is explained to mean “when we apply the canon, “[i]f a provision is susceptible of (1) a meaning that gives it an effect already achieved by another provision ..., and (2) another meaning that leaves both provisions with some independent operation, the latter should be preferred.”

Rule of Lenity

Further, Garcon’s argument that the “rule of lenity” should be applied was also discarded:  “the rule of lenity applies only if, “after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” The court stated that there was no grievous ambiguity that existed here.  Ultimately the 11th circuit reversed the ruling on the case.

11th Circuit Issues Full Court Opinion on Garcon

The Eleventh Circuit voted to vacate the panel opinion and rehear the appeal en banc.

Beginning with the plain text of the statute, a majority of the en banc court held “and” means “and” and it does not mean “or.” Although the disposition seems like simple semantics, several justices dissented from the majority’s opinion. Even so, the majority provided a simple analogy for the plain reading of 3553(f)(1): “‘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. A person who does only A, only B, or only C is in the clear.”

Applying this logic, the court held that Garcon’s 3-point offense did not preclude safety valve relief. In responding to the government’s argument that “and” should be read as “or,” the court categorized the government’s reading as “disturbing” and unpersuasive. The majority concluded that the government asked the court to inject words into the statute where they do not appear, a proposition the court expressly disavowed. Moreover, the majority applied the rule of lenity which counseled against the government’s interpretation of the statute.

Accordingly, the en banc court held that to satisfy subsection (1) of 3553(f), a defendant is eligible for safety valve relief so long as he does not have all three listed prior offenses. Because Garcon did not, the Garcon’s original sentence with application of the safety valve was affirmed.

Palomares' Case: Fifth Circuit, 21-40247

Palomares plead guilty to the offense of possession with intent to distribute heroin under 841(b)(1)(A). The statutory sentencing range on such an offense is 10 years to Life. Palomares would be eligible for a guideline range of 97-121 months but the 10 year mandatory minimum led to a calculated guideline range of 120-121 months. Palomares objected to the PSR arguing that she was eligible for relief under the safety valve and “that a plain reading of § 3553(f)(1) only requires mandatory minimum sentences for defendants whose history meets all three disqualifying criteria listed in subsections (A)– (C)—not just one. And because only one of the disqualifying criteria applied to her, she argued that she was eligible for relief.”’

The District court “agreed with the Government’s position that any of the disqualifying criteria in § 3553(f)(1) would render a defendant ineligible for safety valve relief.”  Palomares was sentenced to 120 months.

The Circuit Split

The 5th circuit noted that there are other courts that have weighed in on the split in addition to Garcon and Lopez: “United States v. Pulsifer, 39 F.4th 1018, 1022 (8th Cir. 2022) (concluding that the introductory phrase “does not have” found in § 3553(f)(1) “distributes” across each statutory condition in § 3553(f)(1)(A)–(C)), and United States v. Pace, 48 F.4th 741, 754 (7th Cir. 2022) (holding that § 3553(f)(1) is to be read disjunctively).”

The Fifth Circuit Determines A Defendant Cannot Have any of the Three

The Fifth Circuit indicated that the structure of the text, “utilizing a negative preceding an em-dash followed by a conjunctive list, makes it likely that the phrase ‘does not have’ independently applies to each item in the list (does not have (A), does not have (B), and does not have (C)).” In other words, you could not have any one of the three to receive safety valve relief.

The 5th Circuit Rejected Palomares’ Interpretation Doctrines

Canon Against Surplusage Inapplicable

Similar to the Lopez case, the canon against surplusage, a judicial doctrine meant to show “that courts prefer interpretations that give independent legal effect to every word and clause in a statute.”  However the 5th Circuit did not accept Palomares’ arguments about the Surplusage.

Rule of Lenity Also Inapplicable

The majority opinion also determined that the rule of lenity, which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”  However, “an ambiguity is only grievous if it remains after the court considers the statute’s “text, structure, history, and purpose,” id., includingall the “traditional canons of statutory construction,” and here the 5th circuit has indicated that there is no reason to guess at the statute’s meaning here.

The Majority Affirmed Palomares’ denial of the safety valve here:

“We hold that the phrase “does not have” independently applies to each subsection in 18 U.S.C. § 3553(f)(1), rendering criminal defendants ineligible for safety valve relief if they run afoul of any one of its requirements. Because Palomares has a prior 3-point offense, we AFFIRM.”

Sixth Circuit Takes Sides on Post-FSA Safety Valve Interpretation:  Haynes

Haynes argued that he was eligible for relief under the Safety Valve but the district court held that he did not meet those requirements, specifically section (1)(B) because he had a prior conviction where he was assigned three points under the Sentencing Guidelines. He appealed, indicating that he should have received safety valve relief because he did not have more than 2 criminal history points and did not have a prior two-point violent offense.

There is a split in the circuit on this:  The Eleventh Circuit and Ninth Circuits indicate that the “and” in the text means that a defendant must have all three to be denied safety valve relief while the Fifth and Seventh Circuits have held that if a person has any one of the three things, then they do not have safety valve relief.

The Sixth Circuit agreed the fifth and the seventh circuit had the right approach:

“Under the government’s interpretation—for a defendant to obtain relief from an otherwise mandatory-minimum sentence—the defendant must not have any of three disqualifying conditions in his criminal record: first, “more than 4 criminal history points,” itself a fourfold increase over the prior cap; second, a prior offense serious enough to add three points to his criminal record; and third, a prior 2-point “violent offense[.]” Each of those conditions on its face is quite plausibly an independent ground to deny a defendant the extraordinary relief afforded by the safety valve—which means this reading is logically coherent.”

The Sixth Circuit affirmed the judgment of the district court denying Haynes relief.

Pulsifer:  Supreme Court Sides with the Government, Holds that Inmate must have must not have all three things listed:

The Supreme Court granted permission to hear the case because the courts of appeals have split over how to read this law. The court sided with the government:

“A defendant is eligible for safety-valve relief under Paragraph (f )(1) only if he ‘does not have’ all three of the items listed—or said more specifically, does not have four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense. The paragraph thus creates an eligibility checklist, and demands that a defendant satisfy every one of its conditions.”

This will summarize how the court came to that conclusion so that you may understand how courts read and interpret statutes that congress passes.

The court’s review of the grammatical structure:

Pulsifer argued that the grammatical structure helped decide the issue for him. The court stated that the issue here was figuring what goes along or together with what. The court goes through several examples of how this would play out, but then determines that they need to do figure out another way to do it:

“Similarly here, the meaning of Paragraph (f )(1) may become clear if we examine the content of its three subparagraphs—what they say and how they relate to each other—as well as how they fit with other pertinent law. Or stated in the usual language of statutory construction, the answer may lie in considering the paragraph’s text in its legal context.” Page 15.

The court’s view of the language in context:

Pulsifer’s reading creates a superfluous statute:

The court noted that when you look at the text and the context it was clear that the paragraph creates an “eligibility checklist” that indicates that all three are necessary conditions for safety valve relief. Reading the paragraph to set out that a defendant would not have a combination of all three safety valve criteria makes (1)(A) superfluous (unnecessary), and statutes are to be read and interpreted as if every portion of them has meaning.

“That is because if a de¬fendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C, he will al¬ways have more than four criminal-history points under Subparagraph A. Second, defendants’ eligibility for relief would not correspond to the seriousness of their criminal records. Instead, a defendant with numerous violent three-point offenses could get relief because he happens not to have a two-point offense. The content of Subparagraphs A, B, and C, especially as read against the Guidelines, thus answers the statutory puzzle here—reducing two grammat¬ical possibilities to just one plausible construction… And that kind of superfluity, in and of itself, refutes Pulsifer’s reading. The problem here is no odd word or strayphrase, which might have escaped Congress’s notice. Pulsifer’s reading would negate one of three—indeed, the firstof three—provisions in the very paragraph he is trying to interpret. When a statutory construction thus “render[s]an entire subparagraph meaningless”

Pulsifer’s reading makes no sense to the court:

Pulsifer also indicates that there are times when a prior conviction that would normally lead to three criminal history points and two criminal history points do not get to five. This is because some convictions lead to zero criminal history points because they are too old. However, the court rejected this argument as well.

The court also noted that the criminal history paragraph sorts people out by the seriousness of their criminal history while Pulsifer’s interpretation does not.

“Only a defendant with none of those markers—a defendant who can check off every one of the three “does not have” requirements—is eligible for relief. So the paragraph unerringly separates more serious prior offenders from less serious ones, allowing only the latter through the gate.

That does not happen under Pulsifer’s construction. To the contrary, his reading would allow relief to defendants with more serious records while barring relief to defendants with less serious ones. Or said otherwise, the sorting ac¬complished by Pulsifer’s reading does not match what Par¬agraph (f )(1) and the Guidelines call for.”

Pulsifer fails to draw corollaries:

Further, the meaning of the term “and” in Section 3553(f) (which is the safety valve, generally), also does not assist him.

“Everyone, including Pulsifer, agrees that the “and” in Section 3553(f) connects five requirements for safety-valve relief, all of which a defendant must meet. In Pulsifer’s view, the Government has to read Paragraph(f )(1)’s ‘and’ differently to make each one of its subpara¬graphs disqualifying… The ‘and’ in Section 3553(f) works identically to the “and” in the Government’s reading of Paragraph (f )(1). Section 3553(f)’s ‘and’ creates an eli¬gibility checklist. A defendant fulfills that provision’s re-quirements if the court finds 1, finds 2, finds 3, finds 4, and (finally) finds 5.”

Pulsifer’s legislative purpose argument fails:

Pulsifer also argued that legislative purpose show that the new provision was meant “to make safety valve relief more widely available.” The court agreed there but indicated that did not assist in interpreting the statutory text. “Both views of the paragraph—Pulsifer’s and the Government’s—significantly widen the opportunity for safety-valve relief”. But congress only extended the relief to some people, and to determine who, all the court needed to do was evaluate the criminal history portion of (f)(1).

Pulsifer’s request to apply the rule of lenity fails:

Pulsifer also indicated that the rule of Lenity should be applied here. “The rule of lenity, he says, requires courts to read “ambiguous criminal stat¬utes in favor of liberty.” But the court disagreed, indicating that the statute was not ambiguous.

Ultimately the court rejected Pulsifer’s argument and affirmed the judgment of the Court of Appeals. No. 22–340.


This is an important case because it not only settles questions about when the safety valve applies, but also settles questions about amendment 821’s zero point offender guidelines. As many of you know, several people were considering if they should file for the zero point offender reduction when they had one or the other of these:

(10) the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848;

I told many people with this issue wait until the sentencing commission decided Pulsifer to file their 821 motions. But after this, I believe that if you have either “an adjustment under 3B1.1” or was “engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848,” then you will be deemed ineligible. Further, for this upcoming cycle, the commission has changed the “and” to “or,” to read:

the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) OR
was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848;

So be advised.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
Contact Us