USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 1 of 18
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4605
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
CASSITY DANIELLE JONES,
Defendant – Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:20-cr-00207-MOC-DCK-1)
Argued: December 9, 2022 Decided: February 21, 2023
Before AGEE, DIAZ and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Diaz and Judge Harris joined.
ARGUED: Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellant. Joshua B. Carpenter, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellant. John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellee. USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 2 of 18
AGEE, Circuit Judge:
The safety valve provision found in the First Step Act allows a district court to
impose a sentence without regard to a mandatory minimum if certain criteria are met.
Relevant here, the court must find that the defendant “does not have . . . more than 4
criminal history points, . . . a prior 3-point offense, . . . and a prior 2-point violent offense”
(the “criminal history characteristics”). 18 U.S.C. § 3553(f)(1) (emphasis added). Cassity
Jones has more than four criminal history points but does not have a prior three-point
offense or two-point violent offense. The district court concluded that a defendant must
have all three criminal history characteristics to be ineligible for relief and applied the
safety valve in sentencing Jones. The sole issue on appeal is whether the word “and” in
§ 3553(f)(1) connecting the criminal history characteristics applies conjunctively or
disjunctively. We conclude that “and” is conjunctive and affirm the district court’s
decision.
I.
In October 2020, Jones pled guilty to possession with intent to distribute fifty or
more grams of methamphetamine in violation of 21 U.S.C. § 841. The offense carried a
ten-year mandatory minimum sentence of imprisonment. At sentencing, Jones argued that
she was eligible for relief from that mandatory minimum under the First Step Act’s safety
valve provision.
In relevant part, that statute provides that a sentencing court may impose a sentence
without regard to the applicable mandatory minimum if it finds that:
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(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[.]
18 U.S.C. § 3553(f)(1) (emphasis added).
Jones acknowledged that she had more than four criminal history points—failing
subsection (A) of § 3553(f)(1)—but argued that because she did not also have a prior three-
point offense or a prior two-point violent offense, she was still eligible for safety valve
relief. According to Jones, only defendants who had all of the listed criminal history
characteristics were ineligible for safety valve relief. The Government disagreed, asserting
that having any one of the characteristics disqualified a defendant from utilizing the safety
valve. The district court adopted Jones’ interpretation, applied the safety valve, and
sentenced her to 100 months’ imprisonment. 1
The Government noted a timely appeal. We have jurisdiction under 28 U.S.C.
§ 1291.
1 Jones’ original sentencing guideline range was 140 to 175 months in prison. With the application of the safety valve and a further downward variance in consideration of Jones’ assistance, Jones’ new range was 100 to 125 months. 3 USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 4 of 18
II.
The Court reviews questions of statutory interpretation de novo. United States v.
Wood, 378 F.3d 342, 351 (4th Cir. 2004).
III.
The sole issue before the Court is whether a defendant is eligible for safety valve
relief if she has fewer than all of § 3553(f)(1)’s listed criminal history characteristics. Jones
argues that because the “and” in § 3553(f)(1) is purely conjunctive, a defendant must have
all three characteristics to be disqualified. Although the Government ostensibly agrees that
“and” is conjunctive, it asserts that having any one of the criminal history characteristics
renders a defendant ineligible for relief. As will be discussed, the Government’s argument
is nothing more than an exaggerated way of saying “and” means “or,” an interpretation we
must reject.
Our discussion proceeds in two parts. We first explain why Jones’ interpretation of
§ 3553(f)(1) is correct and then why the Government’s interpretation is incorrect. As many
of our sister circuits have recently grappled with this issue, we analyze much of their
reasoning throughout our decision. 2
2 The circuits are split on this issue. Compare United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (concluding that only a defendant with all three criminal history characteristics is ineligible under § 3553(f)(1)), and United States v. Lopez, 998 F.3d 431 (9th Cir. 2021) (same), with United States v. Palomares, 52 F.4th 640 (5th Cir. 2022) (concluding that having any one of the criminal history characteristics renders a defendant ineligible under § 3553(f)(1)), United States v. Pace, 48 F.4th 741 (7th Cir. 2022) (same), United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022) (same), and United (Continued) 4 USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 5 of 18
A.
1.
Turning first to the text of § 3553(f)(1), we consider “whether the language at issue
has a plain and unambiguous meaning with regard to the particular dispute.” Ignacio v.
United States, 674 F.3d 252, 254 (4th Cir. 2012) (citation omitted). We make this
determination “by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Id. (citation omitted).
We conclude that § 3553(f)(1)’s plain language is unambiguous. The statute
provides that a defendant is eligible for safety valve relief so long as she does not have
three criminal history characteristics joined by the word “and,” which means “along with
or together with.” Webster’s New International Dictionary 80 (3d ed. 1961). “For the past
fifty years, dictionaries and statutory-construction treatises have instructed that when the
term ‘and’ joins a list of conditions, it requires not one or the other, but all of the
conditions.” United States v. Lopez, 998 F.3d 431, 436 (9th Cir. 2021).
The meaning of “and” does not change simply because it is preceded by a negative
marker. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 119 (2012) (“After a negative, the conjunctive and is still conjunctive.”). When a
conjunctive list is used to explain a prohibition, “the listed things are individually permitted
but cumulatively prohibited.” Id. For example, if someone says, “Don’t drink and drive,”
States v. Haynes, 55 F.4th 1075 (6th Cir. 2022) (same). We find the Eleventh and Ninth Circuits’ decisions convincing and join those circuits. 5 USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 6 of 18
she doesn’t mean that you shouldn’t drink and that you shouldn’t drive, but only that you
shouldn’t do both at the same time.
The same logic applies to a conjunctive negative proof such as § 3553(f)(1). 3 If a
statute states that “[t]o be eligible, you must prove that you have not A, B, and C,” a person
can do one (or even two) of the listed items and not transgress the prohibition. Id. at 120
(emphasis added). Only by doing all three things is a person rendered ineligible. See id.
(“With the conjunctive negative proof, you must prove that you did not do all three.”). On
the other hand, if a statute states that “[t]o be eligible, you must prove that you have not A,
B, or C,” a person “must have done none” of the listed things. Id. (emphasis added).
Applying these straightforward principles to § 3553(f)(1), we conclude that a
defendant is ineligible for safety valve relief only if she has all three criminal history
characteristics. That is, a defendant must not have the combination of (A) more than four
criminal history points, (B) a three-point offense, and (C) a two-point violent offense. This
conclusion follows directly from § 3553(f)(1)’s plain and unambiguous language. If
Congress wanted any one of the criminal history characteristics to disqualify a defendant,
it would have used the word “or,” which it clearly knows how and when to do as reflected
elsewhere in § 3553(f). See infra pp. 7–9. Because Congress instead chose to join the listed
characteristics with “and,” we must conclude that a defendant is ineligible for safety valve
relief under § 3553(f)(1) only if she has all three criminal history characteristics.
3 A conjunctive negative proof is a test that lists requirements connected by a conjunctive—such as “and”—and preceded by a negative marker—such as “have not,” “does not have,” or “cannot.” See Scalia & Garner, supra, at 120. 6 USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 7 of 18
When the words of the statute are clear, as is the case with § 3553(f)(1), our “judicial
inquiry is complete.” Crespo v. Holder, 631 F.3d 130, 136 (4th Cir. 2011) (citation
omitted); see also Ignacio, 674 F.3d at 254 (“[O]ur inquiry must cease if the statutory
language is unambiguous and the statutory scheme is coherent and consistent.” (citation
omitted)). We must instead presume that Congress “says in a statute what it means and
means in a statute what it says.” Stone v. Instrumentation Lab’y Co., 591 F.3d 239, 243
(4th Cir. 2009) (citation omitted). Accordingly, there is nothing left for the Court to
consider.
Nonetheless, because the Government and some courts which have considered this
issue rely on certain tools of statutory interpretation to reach a different conclusion, we
address several of those arguments below.
2.
In so doing, we first note that Jones’ interpretation is confirmed by the presumption
of consistent usage, which provides that “[i]dentical words used in different parts of the
same statute are generally presumed to have the same meaning.” IBP, Inc. v. Alvarez, 546
U.S. 21, 34 (2005). The words “and” and “or” are used throughout § 3553(f), which states
in full:
[T]he court shall impose a sentence pursuant to [the sentencing] guidelines . . . without regard to any statutory minimum sentence, if the court finds at sentencing, . . . 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;
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(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, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
18 U.S.C. § 3553(f) (emphases added).
It is undisputed that the “and” at the end of § 3553(f)(4) joining the five subparts
together is conjunctive. Accordingly, the sentencing court must find that the defendant
satisfies § 3553(f)(1) through (f)(5) to apply the safety valve. It is also beyond dispute that
Congress used “or” throughout the statute as a disjunctive term. To adopt the Government’s
interpretation that “and” really means “or” in § 3553(f)(1), “we would have to believe that
Congress meant to invoke the plain meaning of these words every time except in
[§ 3553](f)(1).” United States v. Palomares, 52 F.4th 640, 657 (5th Cir. 2022) (Willett, J.,
dissenting). The presumption of consistent usage proscribes such a result and instructs a
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court to assign the word “and” in § 3553(f)(1) the same meaning as consistently used
elsewhere in the statute.
Further, the presumption of consistent usage also provides that “a material variation
in terms suggests a variation in meaning.” Scalia & Garner, supra, at 170. This aspect of
the canon is relevant in applying the safety valve because under § 3553(f)(2) the court must
find that “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.” 18 U.S.C. § 3553(f)(2) (emphases added). A finding of any one of these
conditions disqualifies the defendant. In so much as § 3553(f)(2) employs a negative—the
defendant did not use—followed by the disjunctive “or” to convey that the satisfaction of
a single listed condition is disqualifying, when § 3553(f)(1) employs a negative followed
by the conjunctive “and,” we presume a different meaning—that only satisfaction of all
conditions is disqualifying.
We are therefore convinced that § 3553(f)(1) uses “and” as a conjunctive, thereby
requiring the district court to find that a defendant has all three listed criminal history
characteristics before determining that the defendant is disqualified from safety valve
application. Because Jones does not have a prior three-point offense or two-point violent
offense, she is eligible for safety valve relief and the district court appropriately sentenced
her without regard to the otherwise applicable mandatory minimum.
B.
The Government nonetheless contends that our reading of § 3553(f)(1) is incorrect.
It first suggests that, although “and” is conjunctive, the em-dash preceding the criminal
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history characteristics distributes the phrase “does not have” to each of the characteristics,
meaning a defendant must not have any one of the characteristics to be eligible for safety
valve relief. The Government then argues that Jones’ interpretation results in both
surplusage and absurdity. We disagree on all points.
The Government says that it agrees that “and” is used conjunctively in § 3553(f)(1),
but because “Congress placed an em-dash after the prefatory phrase [‘does not have’],
introduced each requirement with an enumerating letter (A, B, C), and separated the
requirements with semicolons,” the phrase “does not have” modifies each of the criminal
history requirements. Opening Br. 16. Essentially, the Government contends that
§ 3553(f)(1) requires the sentencing court to find that the defendant does not have more
than four criminal history points, does not have a prior three-point offense, and does not
have a prior two-point violent offense. We decline the Government’s invitation to inject
absent words into § 3553(f)(1) and reject that interpretation. Again, it is really no more
than an elaborate way of saying that “and” means “or.”
Notably, the Government does not point to any Fourth Circuit precedent that
employs its “far-fetched and quixotic em-dash theory.” Lopez, 998 F.3d at 441 n.11; see
also Palomares, 52 F.4th at 654 (Willett, J., dissenting) (“Style guides, dictionaries, books
on grammar, and the like are silent on whether putting an em-dash after [a] negative phrase
changes its meaning.”). Instead, the Government relies on examples of negative lists to
support its argument. One such example is:
You must not—
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(A) lie; (B) cheat; and (c) steal.
Opening Br. 18.
The Government suggests that this structure signals that the prefatory phrase “must
not” modifies—or in its language is “distributed” to—each item individually, meaning that
a person must not do any of the listed actions. To be sure, a reader might understand the
sentence to prohibit any one of the three actions. “But that understanding has little to do
with syntax and everything to do with our common understanding that” it is immoral to lie,
cheat, or steal. United States v. Garcon, 54 F.4th 1274, 1280 (11th Cir. 2022) (en banc)
(citation omitted). “Indeed, it is no coincidence that the more common wording of the
prohibition uses an ‘or’ instead of an ‘and’: ‘You must not lie, cheat, or steal.’” Id.
(citations omitted). It is therefore reasonable for a reader to assume that “and” “was inserted
inartfully in place of the more natural ‘or.’” Id. The reader does not come to this
understanding, however, due to the placement of an em-dash.
If Congress wanted the Government’s suggested outcome, it would have used “or”
instead of relying on an ill-defined em-dash to alter the meaning of “and.” Further, the
Government offers no proof except its own speculation that Congress was embracing its
em-dash theory for this subsection—and only this subsection—of the statute. We therefore
reject the Government’s argument. See id. (“We decline to adopt that novel reading when
it appears to have been crafted by the government specifically for this statute to achieve its
preferred outcome.”).
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The Government—and most courts that have adopted its interpretation—posit that
accepting Jones’ interpretation renders part of § 3553(f)(1) superfluous and therefore is
contrary to accepted principles of statutory interpretation. See Hibbs v. Winn, 542 U.S. 88,
101 (2004) (“A statute should be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or insignificant.” (cleaned up)). The
argument is that a defendant who has both a prior three-point offense and a prior two-point
violent offense necessarily has more than four criminal history points, rendering subsection
(A) superfluous. If, on the other hand, the presence of any one of the criminal history
characteristics disqualifies the defendant, each listed characteristic has purpose, making
the disjunctive interpretation the better one.
Again, we disagree. Subsection (A) is not superfluous under Jones’ interpretation
and, even if it was, the presumption against superfluity would not be reason to rewrite an
unambiguous statute.
Notably, in determining that subsection (A) is not superfluous, we decline to adopt
the Ninth Circuit’s reasoning in United States v. Lopez, 998 F.3d 431 (9th Cir. 2021). The
Lopez court concluded that although subsection (C) states that a defendant cannot have “a
prior 2-point violent offense,” it should be read as proscribing a defendant from having at
least a prior two-point violent offense. See id. at 440. Under this reading, a defendant who
has a single three-point violent offense satisfies both subsections (B) and (C)—because she
has both at least a two-point violent offense and a three-point offense—but does not satisfy
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subsection (A) because she does not have more than four criminal history points, thereby
giving subsection (A) purpose.
We reject this postulate because it requires the Court to add words to the statute. As
Judge Smith put it, “[t]wo points is two points. Two points is not three points. An
interpretative canon, such as the rule against surplusage, ‘is not a license for the judiciary
to rewrite language enacted by the legislature.’” Id. at 445 (Smith, J., concurring); see also
United States v. Graham, 608 F.3d 164, 176 (4th Cir. 2010) (“In the face of the
unambiguous words of the statute, we cannot construe [the statute] to add language that
Congress omitted.”).
Instead, we conclude that subsection (A) has purpose without altering its plain
language. As the Eleventh Circuit aptly explained in United States v. Garcon:
[A] circumstance in which a defendant could have two- and three-point offenses but fewer than five criminal history points occurs when the two- and three-point offenses are treated as a single sentence. The guidelines treat separate offenses as a single sentence for criminal-history purposes when the sentences result from offenses charged in the same instrument or when they were imposed on the same day. U.S.S.G. § 4A1.2(a)(2). When separate offenses are counted as a single sentence, the district court calculates the term of imprisonment based on the longest sentence if the sentences were imposed concurrently or the total of both sentences if they were imposed consecutively. Id. So, for example, a defendant could have a two-point and a three-point offense charged in the same instrument, satisfying subsections (B) and (C), but score only three criminal history points and fall below the threshold in subsection (A).
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Garcon, 54 F.4th at 1282. 4 Accordingly, subsection (A) is not superfluous under Jones’
interpretation, and the Government is incorrect in suggesting otherwise.
Moreover, even if Jones’ interpretation rendered subsection (A) superfluous, it
would not be a sufficient reason to ignore § 3553(f)(1)’s plain text. See United States v.
Atl. Rsch. Corp., 551 U.S. 128, 137 (2007) (“[O]ur hesitancy to construe statutes to render
language superfluous does not require us to avoid surplusage at all costs.”). Because, as we
have discussed, § 3553(f)(1)’s language is unambiguous, our “judicial inquiry is
complete.” Crespo, 631 F.3d at 136. “If Congress wishes to avoid surplusage in
§ 3553(f)(1), it has power pursuant to Article I of the Constitution to enact legislation to
4 The Eleventh Circuit also identified another plausible circumstance in which a defendant may have a three-point offense and a two-point violent offense but fewer than five criminal history points:
Under the sentencing guidelines, a two-point offense adds no points to the defendant’s criminal-history score if the sentence was imposed more than 10 years before the defendant commenced the present offense. UNITED STATES SENTENCING GUIDELINES MANUAL § 4A1.1(b) & cmt. n.2 (Nov. 2018). Similarly, a three-point offense does not contribute to the criminal-history score if the defendant finished serving the sentence more than 15 years before commencing the present offense. Id. § 4A1.1(a) & cmt. n.1. So, for example, a defendant could have 20-year-old two-point and three-point offenses, satisfying subsections (B) and (C), but score zero criminal history points and fall below the threshold in subsection (A). See Palomares, 52 F.4th at 659 (Willett, J., dissenting).
Garcon, 54 F.4th at 1281–82. “At a minimum, this shows that it is not accurate to assume that any defendant who satisfies (B) and (C) would automatically have more than four criminal history points.” United States v. Pace, 48 F.4th 741, 764 (7th Cir. 2022) (Wood, J., dissenting); see also Palomares, 52 F.4th at 658 (Willett, J., dissenting) (stating that courts favor “tolerating non-obvious surplusage” over “ignoring rudimentary grammar”).
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that effect.” Lopez, 998 F.3d at 446–47 (Smith, J., concurring). We cannot amend
§ 3553(f)(1) for Congress; “[w]e can only carry out its will in applying the plain language
of the statute as enacted.” Id. at 447. Thus, our reluctance to interpret statutory provisions
so as to render its subsections superfluous does not support adopting the Government’s
interpretation.
3.
The Government next asserts that the canon against absurdity prevents the Court
from adopting Jones’ interpretation. This canon provides that statutes “are to be given a
sensible construction”—interpretations that would lead to absurd consequences “should be
avoided whenever a reasonable application can be given consistent with the legislative
purpose.” United States v. Rippetoe, 178 F.2d 735, 737 (4th Cir. 1949). Absurdity exists
“when literal application of the statutory language at issue results in an outcome that can
truly be characterized as absurd, i.e., that is so gross as to shock the general moral or
common sense.” In re Sunterra Corp., 361 F.3d 257, 265 (4th Cir. 2004) (citation omitted).
The Government argues that Jones’ interpretation results in an absurdity because only
defendants with a rare constellation of all three listed criminal history characteristics would
be excluded from the safety valve’s application, while a defendant who has been convicted
of “a lifetime of serious drug convictions” but no two-point violent offenses would be
eligible for relief from a mandatory minimum. Opening Br. 21. We disagree once again.
Jones’ interpretation does not produce absurd results. The Government fails to
recognize that meeting the requirements of § 3553(f)(1) does not guarantee a defendant
safety valve relief. The safety valve statute contains four other independent and separate
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requirements necessary to be eligible to obtain relief. For example, the defendant cannot
have “use[d] violence or credible threats of violence or posses[ed] a firearm or other
dangerous weapon” in connection with her instant offense. 18 U.S.C. § 3553(f)(2).
Similarly, the instant offense cannot have resulted in death or serious bodily injury, and the
defendant cannot have been an “organizer, leader, manager, or supervisor of others in the
offense.” Id. § 3553(f)(3)–(4). A defendant’s satisfaction of § 3553(f)(1) is unrelated to the
satisfaction of these other requirements.
Moreover, even if the defendant meets all the statutory requirements, application of
the safety valve is left to the sentencing judge’s discretion. Stated differently, that a
defendant with a lifetime of serious drug offenses is eligible under § 3553(f)(1) does not
mean she will obtain safety valve relief. “[A] judge who has discretion to impose a shorter
sentence, based on the safety-valve provision, may reasonably choose not to exercise that
discretion if consideration of the defendant’s history counsels against it.” Garcon, 54 F.4th
at 1284. Thus, Jones’ interpretation does not produce results that shock the moral or
common sense.
Further, these purportedly “absurd” results might be what Congress intended.
“Congress could rationally have questioned the wisdom of mandatory minimum
sentencing, which, it is often said, fails to account for the unique circumstances of offenders
who warrant a lesser penalty.” Id. at 1283 (cleaned up). Congress may have wanted to deem
ineligible only “violent recidivists with a history of committing serious crimes.” Id. To that
end, subsection (A) targets serious recidivists—those with more than one prior sentence
excluding one-point offenses; subsection (B) targets defendants who committed serious
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crimes with long sentences; and subsection (C) targets defendants with a history of
violence, even if they received shorter sentences. Taken together, only the most dangerous
offenders are ineligible for relief, and it is not unreasonable to believe that Congress
“decided to allow many defendants to be sentenced based on their ‘unique circumstances’
while retaining mandatory minimums for those defendants it perceived to be particularly
unworthy of relief.” Id. (citation omitted); see also id. at 1284 (“The First Step Act was
enacted to decrease the number of criminal defendants subject to mandatory minimum
sentences.” (citation omitted)).
Ultimately, whether or not this is a prudent policy choice is not for the judiciary to
decide: that determination lies solely with the legislative branch. And “[t]he
[G]overnment’s request that we rewrite § 3553(f)(1)’s ‘and’ into an ‘or’ based on the
absurdity canon is simply a request for a swap of policy preferences.” Lopez, 998 F.3d at
440. We cannot “rewrite Congress’s clear and unambiguous text” simply because the
Government believes it is better policy for the safety valve to apply to fewer defendants.
Id. “The remedy for any dissatisfaction with the results in particular cases lies with
Congress and not with this Court.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576
(1982); see also id. (“Congress may amend the statute; we may not.” (citations omitted)). 5
5 The Government additionally argues that legislative history supports its interpretation. However, legislative history is only relevant to shed light on ambiguous terms. Because § 3553(f)(1) is unambiguous, there is no reason to consult that history. See In re Moore, 907 F.2d 1476, 1478–79 (4th Cir. 1990) (“Legislative history is irrelevant to the interpretation of an unambiguous statute.” (citation omitted)). 17 USCA4 Appeal: 21-4605 Doc: 44 Filed: 02/21/2023 Pg: 18 of 18
Accordingly, we are persuaded that the plain text of § 3553(f)(1) requires a
sentencing court to find that a defendant has all three of the listed criminal history
characteristics before excluding a defendant from safety valve eligibility.
IV.
Because the district court correctly concluded that “and” means what it says in
§ 3553(f)(1), Jones’ sentence is
AFFIRMED.