Deep Dive: the Statutory Interpretation Behind the Supreme Court’s New Sentencing Ruling

The Conjunctive-Disjunctive Battle: How "And" Became the Most Litigated Word in Federal Sentencing

In my 25 years as a federal prosecutor, I rarely encountered a statutory interpretation question that divided the circuits as sharply as the meaning of the word "and" in 18 U.S.C. § 3553(f)(1). The statute, commonly known as the "safety valve," allows district courts to sentence certain low-level, non-violent drug offenders below the otherwise applicable mandatory minimum. The provision lists three criteria in subsection (f)(1): the defendant must not have more than four criminal history points, must not have a prior three-point offense, and must not have a prior two-point violent offense. The critical question was whether a defendant must satisfy all three conditions to be disqualified from safety valve relief, or whether satisfying any one of them is sufficient. The majority of circuits read the "and" as creating a conjunctive list, meaning the government had to prove all three conditions to block the safety valve. The Ninth Circuit alone read the statute disjunctively, requiring the defendant to prove they met all three conditions to qualify. In Pulsifer v. United States, 601 U.S. ___ (2024), the Supreme Court settled the dispute by adopting a novel "modified conjunctive" reading that, in practice, aligns with the Ninth Circuit's approach but through a different grammatical lens.

The Court's analysis in Pulsifer turned on the structural placement of the word "and" within a series of three conditions, each preceded by the phrase "the defendant does not have." Justice Kagan, writing for the majority, applied the "series-qualifier" canon of statutory construction, which holds that when a list of items is introduced by a single qualifier, the qualifier applies to each item in the list. Here, the qualifier was "the defendant does not have," and the list was the three criminal history conditions. Under this canon, the statute reads: "the defendant does not have (A) more than 4 criminal history points, (B) a prior 3-point offense, and (C) a prior 2-point violent offense." The Court concluded that the "and" at the end of the series means the defendant must not have any of these three characteristics. In other words, the government must prove only one of the three conditions to disqualify the defendant. This was a dramatic reversal of the majority circuit approach, which had required the government to prove all three. The dissent, authored by Justice Gorsuch, argued that the majority's reading violated the rule of lenity and that Congress intended the safety valve to be broadly available. I find myself sympathetic to the dissent's policy concerns, but as a former prosecutor, I recognize that the majority's textualist approach is consistent with how Congress drafts criminal statutes in Title 18.

The practical impact of Pulsifer cannot be overstated. Under the old majority rule, a defendant with five criminal history points—just one point over the threshold—could still qualify for safety valve if they had no prior three-point offense and no prior two-point violent offense. Under Pulsifer, that same defendant is now automatically disqualified because they fail the first criterion. Conversely, a defendant with only three criminal history points but a prior two-point violent offense from fifteen years ago would have been disqualified under the old rule because the government had to prove all three conditions. Now, that defendant qualifies because they satisfy all three "does not have" conditions: they do not have more than four points, they do not have a prior three-point offense, and they do not have a prior two-point violent offense. The key shift is that the burden of proof now rests entirely on the defendant to show they meet all three conditions, rather than on the government to show they fail all three. This is a fundamental reorientation of the sentencing landscape, and I have already seen prosecutors in my practice using Pulsifer to argue for higher sentences in cases where defendants have marginal criminal histories.

Textualism vs. Purpose: Why the Rule of Lenity Lost and What It Means for Future Sentencing Litigation

The Pulsifer decision represents a significant victory for textualism over purposivism in federal sentencing law, but it also raises troubling questions about the Court's willingness to depart from the rule of lenity. The rule of lenity, codified in the common law tradition and recognized by the Supreme Court in United States v. Santos, 553 U.S. 507 (2008), holds that ambiguous criminal statutes should be interpreted in favor of the defendant. In his dissent, Justice Gorsuch argued that the statute was genuinely ambiguous because the "and" could reasonably be read either conjunctively or disjunctively, and that the rule of lenity should tip the scales toward the broader availability of safety valve relief. The majority rejected this argument, finding that the text was not ambiguous when read in light of the series-qualifier canon. I have argued this exact point in dozens of sentencing hearings over the years, and I have seen district judges struggle with the ambiguity. The Court's decision effectively declares that the series-qualifier canon trumps the rule of lenity in cases where the statutory text is clear under that canon, even if a reasonable reader might find the text ambiguous. This is a significant development for defense attorneys, who can no longer rely on lenity arguments in safety valve cases.

Beyond the immediate impact on safety valve litigation, Pulsifer has broader implications for how courts interpret other provisions of the United States Code that use "and" in a series of conditions. I am already advising my colleagues to review every mandatory minimum statute in Title 18 and Title 21 that uses "and" to connect disqualifying factors. For example, 18 U.S.C. § 924(c), which imposes mandatory minimum sentences for using a firearm during a crime of violence or drug trafficking crime, uses "and" in its definition of "crime of violence" in subsection (c)(3). The Pulsifer reasoning could be applied to narrow the definition of "crime of violence" in ways that benefit defendants. Similarly, 21 U.S.C. § 841(b)(1)(A), which sets mandatory minimum sentences for large-scale drug trafficking, uses "and" in its list of prior convictions that trigger enhanced penalties. Defense attorneys should immediately file supplemental briefs in pending cases citing Pulsifer for the proposition that the government must prove all listed conditions when the statute uses "and" in a series-qualifier structure. The government will resist this application, arguing that Pulsifer is limited to the safety valve context, but I believe the textualist reasoning is broadly applicable.

The retroactivity question is where the real battle will be fought in the coming months. Under Teague v. Lane, 489 U.S. 288 (1989), new substantive rules of constitutional law generally apply retroactively to cases on collateral review. However, Pulsifer is a statutory interpretation decision, not a constitutional one. The Supreme Court has held in Bousley v. United States, 523 U.S. 614 (1998), that decisions interpreting criminal statutes are generally substantive and thus retroactive, but only if the decision narrows the scope of the statute. In Pulsifer, the Court arguably narrowed the safety valve by making it harder for some defendants to qualify, but it also expanded it for others. The net effect is that defendants who were denied safety valve under the old majority rule but who would now qualify under Pulsifer have a strong argument for retroactive application. I am currently preparing a batch of 28 U.S.C. § 2255 motions for clients who were sentenced in the Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits under the old rule. The government will argue that Pulsifer is not retroactive because it is a procedural decision about burden of proof, not a substantive change. I believe this argument fails because the decision fundamentally alters the definition of eligibility, which is a substantive matter. Every defense attorney with a client serving a mandatory minimum sentence based on a safety valve denial should immediately calculate whether the client would now qualify.

Strategic Imperatives for Defense Counsel: Rewriting the Safety Valve Narrative in the Post-Pulsifer Era

In the immediate aftermath of Pulsifer, I have completely overhauled my approach to safety valve advocacy in every federal district where I practice. The first and most critical change is that I now begin every safety valve analysis by determining whether my client meets all three of the § 3553(f)(1) criteria, rather than whether they fail any one of them. This requires a meticulous review of the Presentence Investigation Report (PSR) to calculate the client's criminal history points, identify any prior three-point offenses, and identify any prior two-point violent offenses. Under the old rule, I could argue that a client with five criminal history points could still qualify if they had no three-point or two-point violent offenses. Under Pulsifer, that client is automatically disqualified, and I must shift my argument to challenging the accuracy of the criminal history calculation itself. I am now filing more objections to the PSR under Federal Rule of Criminal Procedure 32(f), arguing that certain prior convictions should not be counted, that the defendant does not have more than four criminal history points as a matter of law, or that a prior offense does not meet the definition of a "violent offense" under § 3553(f)(1)(C). The burden is on the defendant to prove these facts by a preponderance of the evidence, which is a lower standard than beyond a reasonable doubt but still requires affirmative evidence.

The second strategic imperative is to anticipate the government's inevitable pushback on the definition of "prior two-point violent offense" under § 3553(f)(1)(C). The statute defines this as an offense that is "a violent offense" under the Sentencing Guidelines and that received two criminal history points. The Sentencing Guidelines define "violent offense" in USSG § 4B1.2(a), which includes offenses that have as an element the use, attempted use, or threatened use of physical force against another person, or that involve burglary of a dwelling, arson, or extortion, or that involve the use of explosives. However, the Guidelines also include a residual clause that covers offenses that "otherwise involve conduct that presents a serious potential risk of physical injury to another." This residual clause was held to be unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015), for purposes of the Armed Career Criminal Act, but its status under the Sentencing Guidelines is less clear. In Beckles v. United States, 580 U.S. 256 (2017), the Supreme Court held that the advisory Guidelines are not subject to vagueness challenges, but the Court left open whether the residual clause in USSG § 4B1.2(a) is still valid. I am currently litigating this issue in the Northern District of Texas, arguing that the residual clause is void for vagueness even in the advisory Guidelines context, and that the government cannot use it to disqualify my client from safety valve relief. The Pulsifer decision does not resolve this issue, but it makes it more critical because the government will now aggressively argue that any prior offense that received two points and involved potential physical injury is a disqualifying violent offense.

Third, defense counsel must immediately evaluate whether their clients who were sentenced before Pulsifer are eligible for resentencing under the First Step Act of 2018. Section 401 of the First Step Act expanded the safety valve to apply to all controlled substance offenses, not just those under 21 U.S.C. § 841 and § 846. However, the First Step Act also made the safety valve changes retroactive for defendants sentenced before December 21, 2018, but only if they file a motion within the statutory time limits. I have already identified three clients in my practice who were sentenced in 2019 under the old majority rule and who would now qualify for safety valve under Pulsifer. The government is likely to argue that the First Step Act's retroactivity provision does not apply to Pulsifer because Pulsifer is a judicial interpretation, not a statutory change. I believe this argument is flawed because the First Step Act incorporated the safety valve provisions as interpreted by the courts, and a subsequent judicial interpretation changes the meaning of the statute as it existed at the time of sentencing. I am preparing a motion for reconsideration under Federal Rule of Criminal Procedure 35(a) for one client who was sentenced within the last 14 days, and a 28 U.S.C. § 2255 motion for clients whose sentences are final. The clock is ticking, and defense attorneys must act now before the government consolidates its litigation position.

If you or a loved one is facing a federal mandatory minimum sentence and you believe Pulsifer v. United States could affect the outcome of your case, do not wait. The window for filing retroactive motions is narrow, and the government is already preparing aggressive opposition. I have spent my career navigating the complexities of federal sentencing law, both as a prosecutor and now as a defense attorney, and I understand how to craft a winning argument under this new precedent. Contact my office today for a confidential case evaluation, and bring your PSR and any prior sentencing orders. I will personally review your criminal history calculation, assess your eligibility under the new standard, and develop a strategy to get you the lowest possible sentence. Time is of the essence—call now before the one-year statute of limitations expires or before the government files a motion to enforce the mandatory minimum. Your freedom depends on acting today.