The “Cite” of the Crime Podcast
Federal 11th Circuit Criminal Case Law Update
(December 5, 2022 – December 9, 2022)
Listen to this week’s The “Cite” of the Crime Podcast episode here.
OVERVIEW – 1 case
- 1 published decision
- 0 unpublished decisions
- 8 miscellaneous cases not discussed on podcast or summarized (Anders Briefs, Compassionate Release, etc.)
Case # 1 – United States v. Garçon, No. 19-14650 (11th Cir. Pub. Dec.)(December 6, 2022)
- Garcon is an important 85 page decision on whether “and” means “and.”
- You heard that right. Only lawyers can spend 85 pages discussing whether the word “and” actually means “and” or whether it means “or.”
- This is an important decision that determined whether the safety valve provision would be construed restrictively disqualifying a large population of defendants with certain criminal histories, or whether the safety valve provision would be construed more broadly opening up the safety valve provision to a far greater number of people.
- So, let’s jump right into this linguistic hot tub filled with jets aimed in all different directions.
- Judge Pryor delivered the opinion for the majority, and Judges Rosenbaum and Newsom filed concurring opinions and Judges Jordan and Branch filed dissenting opinions.
- So, five written opinions from five different judges all with a different view on why “and” means “and” or why “and” means “or.”
- Let’s start off with the text of the statutory provision at issue.
- The Safety Valve provision is found in 18 USC §3553(f).
- If a defendant meets five criteria laid out in subsections (f)(1) – (f)(5), then the district judge has the authority to sentence that defendant below a minimum mandatory sentence.
- So, this is a big deal, because in the federal system, there are only two ways to get below a minimum mandatory sentence – safety valve and a 5K substantial assistance motion.
- The subsection at issue here is subsection (f)(1) which states that a defendant is eligible if 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.
- It should be noted that there are four other subsections that a defendant must satisfy to be eligible for safety valve that relate to the offense he is charged with.
- So the question before the Court here was whether the “and” that comes after subsection (B) requires that a defendant have all three (A), (B) and (C)?
- Or should the “and” be read as an “or” and require that only (A), (B) or (C) would disqualify a defendant from safety valve.
- The district court agreed with Mr. Garcon that all three must be present.
- In other words, in the district court’s view, Mr. Garcon would have to have had more than 4 criminal history points and a prior 3 point offense and a prior 2 point violent offense to be disqualified from Safety valve consideration.
- The Government disagreed with this reading of the statute and appealed.
- Initially, a panel of the 11th Circuit held that the “and” means “or” and reversed the district court, but the 11th Circuit voted to vacate that opinion and to hear the case en banc.
- Because what lawyer or judge doesn’t want to get involved in a good ole fashioned “does “and” mean “and” debate?”
- And so, that is exactly what the judges did.
- So we start with the majority opinion and they started with the text of the statute citing to the ordinary meaning canon which stands for the proposition that the court’s job is to interpret the words in a statute as consistent with their ordinary meaning at the time Congress enacted the statute.
- “And” means “along with or together with.”
- When “and” connects a list of requirements, it is used in the conjunctive sense, meaning each of the requirements must be met.
- So, in this case, Subsection A’s 4 point requirement and Subsection B’s 3 point offense requirement and Subsection C’s 2 point violent offense requirement must all be present.
- This remains the same if you start the sentence off in the negative, as is the case here in the Safety Valve provision.
- For example, a defendant does not have 4 points and a 3 point offense and a prior 2 point offense. All three are required when using “and” in the conjunctive.
- The majority also looked at how the four requirements, Subsections (f)(1) – (f)(5) are also connected by the word “and,” which requires the defendant to establish all five elements to be eligible for safety valve.
- And both the government and Mr. Garcon agree that that “and” requires each of subsections (f)(1) through (f)(5) to be established.
- The majority also looked at a portion of the provision where they used the word “or” in the normal disjunctive sense.
- Under subsection (f)(2), a defendant is ineligible for safety valve if he uses violence or credible threats of violence during the charged offense.
- Here, it is clear that a person is ineligible if either is present – violence or credible threats. Both do not have to be present.
- The majority also looked at the House and Senate legislative drafting manuals which instruct that “and” should be used in the conjunctive and “or” should be used in the disjunctive when drafting legislation.
- The Government, to their credit, made some interesting and creative arguments as to why “and” doesn’t really mean “and.”
- First, they argued for a distributive reading where the negative prefatory phrase “does not have” distributes to modify each of the subsections severally, essentially changing the “and” to an “or”.
- In other words, the government wants the Court to interpret the term “the defendant does not have in Subsection 1 as added to Subsection 1(A), 1(B), and 1(C), so the statute would be read as the defendant does not have more than 4 criminal history points, the defendant does not have a 3 point offense, and the defendant does not have a 2 point violent offense.
- But this reading was rejected by the Court because it required the Court to add words that were not included by Congress.
- The government next argued that Mr. Garcon’s reading of the statute would render subsection (f)(1)(A) superfluous.
- If all three criminal history requirements are required, then Subsection (A), that more than 4 criminal history points are required, would not be needed because Subsection (B) requires a prior 3 point offense and Subsection (C) requires a prior 2 point violent offense, so to be ineligible for Safety Valve under Mr. Garcon’s reading, a defendant would always have at least 5 criminal history points.
- But, the 11th Circuit had an interesting response to this argument.
- The majority posited that under the sentencing guidelines, a 2 point offense adds no points where it is more than 10 years old and a 3 point offense adds no points if it is more than 15 years old.
- So, under the majority’s reading, a defendant could have 20 year old 3 and 2 point offenses which would count under Subsections (B) and (C), but would score zero criminal history points under the guidelines.
- The majority supported its reading by distinguishing the term “criminal history points” used in Subsection (A) and “Prior offense” as used in Subsection (B) and (C).
- The Court reads the term “a prior offense” to include points that may or may not count toward the final criminal history points and reads the term “criminal history points” to only include those that are actually scored.
- So, a prior 3 point offense that is more than 15 years old would not be counted towards Subsection (A)’s 4 points requirement, but would be counted under Subsection (B)’s prior 3 point offense requirement.
- The government also argued that Mr. Garcon’s plain reading of the statute would lead to an absurd result, invoking the absurdity doctrine.
- That doctrine permits a court to depart from the literal meaning of an unambiguous statute where a rational Congress could not conceivably have intended the literal meaning to apply.
- Here, the government argued that under the plain reading of the statute, almost everybody would qualify for safety valve.
- But the majority responded by asserting that Congress may have questioned the wisdom of minimum mandatory sentencing and therefore sought to limit its applicability.
- And there are four other requirements to the Safety Valve provision that a defendant must satisfy, even if that defendant qualifies based on criminal history.
- And the district court is not obligated to sentence a defendant below the statutory minimum.
- A district court has great discretion in sentencing and can grant safety valve but then sentence the defendant to a term that is no shorter than if the defendant were not safety valve eligible.
- The majority also did not look to the legislative history of the safety valve provision because it found the meaning of “and”to be unambiguous.
- Finally, the majority also found that if any grievous ambiguity remained, the rule of lenity applied.
- The rule of lenity is the canon of statutory construction that requires a court to construe an ambiguous criminal statute narrowly in favor of a defendant.
- So, with that and 23 pages of discussion, the law of the 11th is that “and” means “and,” and a defendant is not ineligible for safety valve based on criminal history unless they have 4 criminal history points, a prior 3 point offense, and a prior 2 point violent offense.
- But we won’t stop there. We have another 52 pages of discussion on this deeply dividing topic.
- Judge Rosenbaum gave a concurring decision stating that she would affirm based on the Rule of Lenity
- Judge Rosenbaum agreed with the dissent that the statutory intent seems to support the argument that Congress meant to use “or” rather than “and” when drafting the statute, making any one of the three subsections a disqualifying provision.
- And the word “and” is conjunctive, requiring all three subsections to be satisfied.
- Judge Rosenbaum does not believe that the statute gives adequate notice to defendants what will disqualify them and it is possible, although unlikely, that Congress intended the “and” to be conjunctive.
- In her view, that makes this statute grievously ambiguous requiring the application of the rule of lenity.
- So, she concurred based on the application of the rule of lenity.
- We next turn to Judge Newsom.
- Judge Newsom concurred with the majority opinion, but added another reason for rejecting the government’s argument that interpreting the “and” would result in surplusage of subsection (A)’s requirement of at least 4 total criminal history points.
- Judge Newsom argues that the anti-surplusage canon should not come into play at all because the text of the statute is unambiguous. “And” means “and.”
- In his view, canons are not rigid rules and a court’s obligation is to the text, not the canons per se.
- In his words, “no amount of canon-based massaging could make “white” mean “black” or “up” mean “down.” And no amount of massaging can make “and” mean “or.”
- If Congress made a mistake, then it is their job to fix it.
- The first of the three dissenting opinions came from Judge Jordan
- Judge Jordan conceded that “and” is generally used in the conjunctive, but then lays out case law examples where courts have interpreted “and” to mean “or.”
- He provided an example, “the clerk requires A, B, and C.”
- In his view, that statement can be interpreted as requiring all three or any one of the three.
- Judge Jordan then went through the legislative history of the Safety Valve provision explaining how it was meant to prevent offenders with prior criminal histories, originally more than 1 criminal history point, from being sentenced below minimum mandatory sentences and then how Congress amended the statute in the First Step Act to broaden who can qualify for Safety Valve while still limiting relief to those with little or no criminal history.
- So, Judge Jordan relied on the legislative history and his interpretation of the common sense application to conclude that the “and” meant “or.”
- Judge Branch dissented on the basis that the majority’s opinion was at odds with the structure and context of the statute and because that interpretation creates two surplusage problems in her view.
- In Judge Branch’s view, although “and” is generally conjunctive, that general interpretation is rebuttable.
- Judge Branch believes that reading the “and” in the conjunctive makes the first subsection requiring 4 total criminal history points to be surplusage in relation to the second two subsections which, in her view, will always result in more than 4 criminal history points.
- Judge Branch takes a looser view of applying the plain text of a statute.
- She also disagreed with the majority’s view that although old prior convictions may not be counted under the guidelines, they still apply under Subsection (B) and (C) of the Safety Valve statute, thereby not making Subsection (A) superfluous.
- In Judge Branch’s view, this interpretation violates the plain text by ignoring the term “as determined under the guidelines,” which in her view, means that only points scored under the guidelines would disqualify a person from safety valve. So, in her view, if an offense was 20 years old, it wouldn’t apply to the criminal history points and it wouldn’t apply to safety valve eligibility.
- And although Judge Branch did not believe that the absurdity canon comes into play, she did outline the problems with the majority’s applicability of the statute.
- A defendant can have any number of prior criminal history points and still qualify for Safety Valve as long as they don’t have one prior 3 point offense and one prior two point violent offense.
- So, a defendant can have a ton of two point violent offenses, but no three point offenses and still qualify.
- Or a defendant can have several 3 point offenses and no 2 point violent offenses and still qualify.
- But a defendant could have one three point offense and one two point violent offense and not qualify.
- In real world terms, Defendant A could have been to prison six times and have thirty prior convictions, but no convictions for any violent offenses and he would qualify for Safety Valve, while Defendant B has one very old prior unarmed robbery conviction and one very old prior theft conviction where he was sentenced to 13 months and he would not qualify for Safety Valve.
- Judge Branch also does not believe that there is an grievous ambiguity in the statute, and therefore would not apply the Rule of Lenity
- The dissents bring up good points about how this poorly written statute is going to cause some real world problems.
- But, as the majority noted, a district judge has great discretion to sentence a defendant pursuant to the §3553(a) factors.
- Safety Valve merely drops the floor, it doesn’t drop the ceiling.
- Judge Brasher gave the next dissenting opinion and it wasn’t so much an opinion as it was a directive to district judges to not sentence certain safety valve eligible defendants below the minimum mandatory.
- Judge Brasher took the scenic route by diverting through the murky swamps of the categorical approach, United States v. Taylor, and whether prior offenses qualified as predicate offenses under the Armed Career Criminal statute.
- He lamented how a defendant who attempts a robbery and shoots and kills a victim during that attempted robbery would not have a predicate ACCA conviction because attempted robbery does not qualify, while a successful robbery that occurred by passing a teller a note would qualify.
- And here, Judge Brasher lamented how a defendant with one decades old 3 point violent felony conviction could receive a lower sentence than a defendant with one single 3 point nonviolent offense and one 2 point violent misdemeanor.
- Judge Brasher raised constitutionality concerns with the trend towards what he believes is arbitrary sentencing.
- So, Judge Brasher gave a directive to district judges not to sentence defendants with serious and violent criminal histories below the minimum mandatory, even if they qualify for safety valve.
- So, with all of the judges being heard, the 11th Circuit sided with Mr. Garcon and read “and” or mean “and.”
- The 11th Circuit, joining the 9th Circuit, is now at odds with the Fifth, Seventh, and Eighth Circuits, all of which have found that the Safety Valve provision only requires one of the three subsections to disqualify a defendant – 4 total criminal history points, one 3 point offense, or one 2 point violent offense.
- So, this Circuit conflict should eventually make its way to the Supreme Court.
- Case Affirmed.
United States v. Ramirez, No. 21-14295 (11th Cir. Unpub. Dec.)(December 5, 2022)
United States v. White, No. 22-10027 (11th Cir. Unpub. Dec.)(December 5, 2022)
Reasonableness of the Sentence Cases
United States v. Lopez-Garza, NO. 22-10501 (11th Cir. Unpub. Dec.)(December 7, 2022)
United States v. Oduardo-Suarez, No. 22-10394 (11th Cir. Unpub. Dec.)(December 7, 2022)
United States v. Beck, No. 21-14298 (11th Cir. Unpub. Dec.)(December 5, 2022)
United States v. Brannon, No. 22-11029 (11th Cir. Unpub. Dec.)(December 5, 2022)
United States v. Brown, No. 22-10624 (11th Cir. Unpub. Dec.)(December 5, 2022)
United States v. Paige, No. 21-13920 (11th Cir. Unpub. Dec.)(December 6, 2022)