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May 27, 2021

In contrast to Ninth Circuit panel, Eleventh Circuit panel gives narrow reading to FIRST-STEP-amended mandatory-minimum safety valve provision

In recent posts here and here, I have spotlighted a significant recent Ninth Circuit panel ruling in US v. Lopez, No. 19-50305 (9th Cir. May 21, 2021) (available here), which interpreted the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  But a helpful reader flagged in a comment to one of these posts that an Eleventh Circuit panel reach an opposite interpretation of this statutory language just days earlier in US v. Garcon, No. 19-14650 (11th Cir. May 18, 2021) (available here).  Here is a key passage from the start and from the central analysis in Garcon

Julian Garcon pleaded guilty to attempted possession of 500 grams or more of cocaine with intent to distribute in violation of the Controlled Substances Act and faced a five-year statutory minimum sentence.  21 U.S.C. §§ 841(a)(1); 841(b)(1)(B)(ii); 846.  At sentencing, Garcon sought safety valve relief as provided in the First Step Act, 18 U.S.C. § 3553(f)(1).  The district court interpreted 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 district court then found that Garcon was eligible for relief because he had only a prior three point offense, as described in § 3553(f)(1)(B).  The government appealed, arguing that § 3553(f)(1) is written in the disjunctive and, thus, Garcon is ineligible for safety valve relief because he met one of the three disqualifying criteria — here, he has a prior three-point conviction.  After careful review and with the benefit of oral argument, we find that, based on the text and structure of § 3553(f)(1), the “and” is disjunctive.  Accordingly, we vacate Garcon’s sentence and remand for resentencing....

The contextual indication that the “and” in § 3553(f)(1) is disjunctive is that if the “and” is read conjunctively so that a defendant must have all three requirements before he is disqualified from the safety valve, then subsection (A) would be superfluous. 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.

In short, last week produced a crisp circuit split on the proper interpretation of a key provision of the FIRST STEP Act on a matter that impacts many hundreds of federal drug cases every month.  Data from the US Sentencing Commission shows there are typically more than 1500 drug cases sentenced in federal court each and every month, with over 250 each month in the Ninth Circuit and over 100 each month in the Eleventh Circuit.  Not all these cases will be impacted by this statutory dispute over the reach of the new safety valve, but many can be.

It is surely only a matter of time before other circuit weigh in on this important issue, and I assume this split will be deepened in the coming months and that the Supreme Court will have to take cert.  Along the way, it will be interesting to see if future rulings find this existing circuit split to be evidence of ambiguity in the statutory text (which, in turn, should lead to rulings in favor of the defendant based on the rule of lenity).  Notably, the Eleventh Circuit panel in Garcon states in support of its narrow interpretation that the "text and structure of § 3553(f)(1) provide a clear meaning."  Garcon, No. 19-14650, slip op. at 9.  But the Ninth Circuit in Lopez states in support of its broader interpretation that it must apply "Congress’s clear and unambiguous text."  Lopez, No. 19-50305, slip op. at 19.  To me, the only thing that seems actually "clear" about this statute's text is that SCOTUS is going to have to resolve how it should be applied.

Prior related post:

May 27, 2021 at 10:46 AM | Permalink

Comments

I see the grant of Certiorari coming now to resolve this Circuit split! The Eleventh Circuit is consistently the most narrow minded and conservative Judicial circuit in the U.S. in criminal cases.

Posted by: Jim Gormley | May 28, 2021 10:34:15 AM

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