Especially for federal drug sentencing statutes, it "turns out that 'and' has more meanings than one might suppose"

A couple of weeks ago in this post, I noted the notable Eleventh Circuit en banc ruling in US v. Garcon giving a broad reading to the FIRST-STEP-amended statutory safety valve to enable more federal drug defendants to benefit from its authorization for below mandatory-minimum sentences.  Thanks to a helpful reader, I see that today a split panel of the Sixth Circuit came out the other way in US v. Haynes, No. 22-5132 (6th Cir. Dec. 19, 2022) (available here).  Here are some passages from the majority opinion explaining the court's reasoning:

Aaron Haynes argues that the district court misinterpreted 18 U.S.C. § 3553(f)(1) when it denied him “safety valve” relief from his mandatory-minimum sentence. We agree with the district court’s interpretation of the statute and affirm....

The question presented is whether — as the government argues and the district court held — this provision requires the defendant to show that he has none of the criminal history described in subsections (A)-(C); or whether instead — as Haynes argues — the defendant must show only that he lacks the criminal history described in any one of those subsections. The answer to that question, everyone agrees, depends on the meaning of the word “and” as used in § 3553(f)(1)(B).

It turns out that “and” has more meanings than one might suppose.  By way of background, grammatical rules are an archetype of rules of conduct with which we often comply without conscious awareness of doing so.  Small children comply with any number of grammatical rules without awareness even of their existence; and adults comply with rules concerning the pluperfect and subjunctive tenses, for example, without consciously knowing what those rules are.  We likewise understand language according to these same grammatical rules, again often without awareness of their existence.  Thus, a particular grammatical rule might strike us as impossibly esoteric, and yet shape our understanding of language every day.  The task of determining the ordinary meaning of a word or phrase, therefore, is sometimes one of excavating — and taking conscious account of — rules as to which our compliance is often unconscious....

Here, the government’s interpretation of § 3553(f)(1) is logically coherent. Again by way of background, when § 3553(f)(1) was first enacted in 1994, it provided that any defendant with “more than one criminal history point” was ineligible for safety-valve relief.  See 18 U.S.C. § 3553(f)(1) (1994).  Congress amended § 3553(f)(1) in the First Step Act of 2018 to read as it does now. 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 same is not true of Haynes’s interpretation, which would require that all these conditions be present for a defendant to be ineligible for safety-valve relief. Consider, for example, a defendant with 25 criminal history points, generated in part by six convictions for assault with a deadly weapon and six convictions for domestic assault.  (Both can be two-point violent offenses.  See, e.g., United States v. Delgado-Hernandez, 646 F.3d 562, 564 (8th Cir. 2011).)  Under Haynes’s interpretation, this defendant would qualify for safety-valve relief because of the fortuity that his criminal record lacks “a prior 3-point offense[.]” 18 U.S.C. § 3553(f)(1)(B).  Or consider an incorrigible recidivist with, say, 24 criminal-history points, comprising a half-dozen convictions for robbery and two convictions for possession of explosives with intent to terrorize. (Both are often three-point offenses.  See, e.g., United States v. Henderson, 209 F.3d 614, 616 (6th Cir. 2000); United States v. Priest, 447 F. App’x 682, 684 (6th Cir. 2011).)  This defendant too would be eligible for safety-valve relief, for want of a prior two-point violent offense. Results like these appear arbitrary enough to be implausible — which makes Haynes’s interpretation akin to an interpretation of beer-and-wine in the joint sense rather than the distributive one.  Haynes does offer a thoughtful response: namely that the district court serves as a gatekeeper in cases where § 3553(f)(1) generates results as bizarre as these.  But an ordinary reader would expect that § 3553(f)(1) itself would serve as a gatekeeper — and not an arbitrary one.  That indeed is the whole point of the provision.  The government’s reading of § 3553(f)(1) is therefore better than Haynes’s reading.

I believe that we now have the Fifth, Sixth and Seventh Circuits adopting the government's approach to the new statutory safety valve, and the Ninth and Eleventh Circuits on the defendants' side.  It is now seemingly only a question of when, rather than if, the Supreme Court takes up this issue and tells us which meaning of "and" is to be applied in this context.