Split over reading of the FIRST-STEP-amended safety valve provision appears ready for SCOTUS review

In this post a couple of days ago, which discussed the latest notable circuit opinion interpreting the language Congress used in the FIRST STEP Act to expand the statutory safety valve enabling more federal drug defendants to be sentenced below mandatory minimum terms, I suggested it was only a matter of time before SCOTUS takes up the statutory interpretation dispute that has deeply divided lower courts.  And this new Relist Watch post by John Elwood at SCOTUSblog suggest it may actually be only a matter of days before cert is granted on this issue:

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time....

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “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.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C).  The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle.  Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle.  Probably at least one will get the grant.

I share the view that, if the Justice Department is advocating for review, we ought to expect a grant on one of these cases perhaps as early as Monday.  My understanding is that a grant now would set the case up for Fall 2023 argument and likely no decision from SCOTUS until early 2024.