United States v. Roger Pace

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2151
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER E. PACE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:19-cr-30051 — Sue E. Myerscough, Judge.
____________________
ARGUED DECEMBER 6, 2021 — DECIDED SEPTEMBER 9, 2022
____________________
Before RIPPLE, WOOD, and KIRSCH, Circuit Judges.
RIPPLE, Circuit Judge. During a search of Roger Pace’s ve-
hicle, a police officer discovered methamphetamine. Mr. Pace
was subsequently charged with possession with intent to dis-
tribute 50 grams or more of a mixture containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B).
2 No. 21-2151
Mr. Pace filed a motion to suppress the drugs and other
evidence found during the search of his SUV. The magistrate
judge conducted an evidentiary hearing and then recom-
mended that the district court deny the motion. After consid-
ering Mr. Pace’s objections to the magistrate judge’s report,
the district court overruled those objections, adopted the re-
port, and denied the motion to suppress.
Mr. Pace subsequently pleaded guilty but reserved his
right to appeal the ruling on his suppression motion. At his
sentencing hearing, Mr. Pace asserted that he was eligible for
relief from the five-year statutory minimum sentence pursu-
ant to the “safety valve” provision of 18 U.S.C. § 3553(f). The
district court determined, however, that Mr. Pace did not
qualify for the safety valve and sentenced him to 60 months’
imprisonment.
Mr. Pace now asks us to review both the district court’s
denial of his motion to suppress and its ruling that he did not
qualify for the safety valve. We hold that the district court cor-
rectly determined that the search of Mr. Pace’s vehicle was
based on reasonable suspicion and that he did not qualify for
the safety valve. Accordingly, we affirm the judgment of the
district court.
I
BACKGROUND
A.
On April 5, 2019, at around 10:30 p.m., Officer Ryan
Crowder observed a white SUV in the parking lot of a local
business. An individual was sitting inside the SUV. That
night, Officer Crowder was the only police officer on duty in
the small town of Pleasant Hill, Illinois. He testified that he
No. 21-2151 3
pulled into the parking lot to investigate the SUV because it
was nighttime, the business was closed, and he had never
seen that particular SUV in Pleasant Hill. As soon as Officer
Crowder pulled his car alongside the SUV, Mr. Pace exited his
vehicle and started speaking with him. Mr. Pace explained
that he was in town visiting his friend, Jennifer Johns, but was
lost and needed directions to Carolina Street where Johns
lived.
Officer Crowder knew of Johns and of her past metham-
phetamine use. Indeed, Johns previously had provided infor-
mation to Officer Crowder about methamphetamine use in
Pleasant Hill, and this information had led to the arrest of a
person for possession of the drug. A member of the Western
Central Illinois Task Force also had informed him that a con-
fidential source reported that Johns and her mother were us-
ing and moving methamphetamine. Finally, Officer Crowder
had received complaints from Johns’s neighbors about fre-
quent traffic at her home, which was consistent with drug
trafficking. Officer Crowder testified that Mr. Pace’s mention
of Johns’s name and of his planned late-night visit to her res-
idence therefore raised a red flag.
After providing Mr. Pace with directions to Johns’s home,
Officer Crowder backed up his police car, activated his emer-
gency lights, and parked directly behind Mr. Pace’s SUV. At
this point, less than one minute had elapsed from the time that
1
Officer Crowder had initially stopped. While Officer
Crowder moved his squad car, Mr. Pace stood in front of his
SUV and talked on his phone. The exit to the parking lot was
1 The dashcam video recording from Officer Crowder’s squad car was ad-
mitted in the evidentiary hearing as Government’s Exhibit 2. R.19-2.
4 No. 21-2151
in front of Mr. Pace’s car; nothing obstructed his ability to
drive away.
Officer Crowder then approached Mr. Pace again and
asked for his driver’s license. Shining his flashlight inside the
SUV, he did not see any weapons or contraband but did see
multiple musical instrument cases. Mr. Pace walked to the
back of his SUV and attempted to get one of the instruments
out to play for Officer Crowder but was asked to leave it in
the vehicle. Mr. Pace’s behavior struck Officer Crowder as
very odd and overly friendly, yet nervous at the same time.
Officer Crowder attempted to radio Mr. Pace’s driver’s li-
cense into dispatch to confirm its validity and to ascertain
whether Mr. Pace had any warrants. Discovering that his
portable radio was not working, Officer Crowder returned to
his squad car with Mr. Pace’s license and waited for dispatch
to respond. He also called an officer from another agency to
determine whether he could assist, but the officer was busy.
Dispatch confirmed that Mr. Pace’s license was clear and
that he had no outstanding warrants. It further indicated,
however, that he had a history of drug possession including
methamphetamine, narcotic instruments, and drug parapher-
nalia. Officer Crowder also checked a website that provides a
person’s criminal history from several jurisdictions. Accord-
ing to the site, Mr. Pace was on probation for possession of
2
methamphetamine. After exiting his squad car, Officer
Crowder inquired whether Mr. Pace had any weapons.
Mr. Pace denied that he did and consented to a search of his
2 The website is www.judici.com, which explicitly states that it is not to be
relied upon for accuracy.
No. 21-2151 5
person. Officer Crowder then asked if Mr. Pace would con-
sent to a search of his SUV, but Mr. Pace declined.
At that point, Officer Crowder informed Mr. Pace that he
was going to conduct a free air sniff of his SUV with his canine
partner. Officer Crowder then explained to Mr. Pace that he
was not under arrest, but that he was going to place him in
restraints during the sniff for officer safety. He handcuffed
Mr. Pace’s hands in front of his body. Both Officer Crowder
and Mr. Pace walked back to the SUV, and Mr. Pace retrieved
an item from the front of the vehicle. Officer Crowder then
placed him in front of his squad car. Officer Crowder re-
trieved his K-9 from the squad car. After the dog alerted to
the presence of drugs in the SUV, Officer Crowder searched
the SUV and found both methamphetamine and cannabis. Of-
ficer Crowder then arrested Mr. Pace and placed him inside
the squad car.
B.
Following his indictment for possession with intent to dis-
tribute methamphetamine, Mr. Pace filed a motion to sup-
press, asserting that all evidence obtained from the seizure,
search, and arrest should be suppressed. The magistrate
judge conducted a hearing on the motion and determined that
the initial interaction between Mr. Pace and Officer Crowder
was consensual. The judge also concluded that Officer
Crowder’s use of his emergency lights did not constitute a sei-
zure for purposes of the Fourth Amendment, but, in any
event, Officer Crowder had reasonable articulable suspicion
at that point in time to conduct a limited investigative stop to
check Mr. Pace’s license. The magistrate judge also concluded
that once Officer Crowder learned of Mr. Pace’s criminal his-
tory, he had sufficient information to conduct a free air sniff
6 No. 21-2151
of Mr. Pace’s SUV. Finally, the magistrate judge rejected the
argument that an arrest occurred when the officer handcuffed
Mr. Pace. An arrest occurred only after the completion of the
search of the vehicle and the discovery of the drugs.
Mr. Pace filed several objections to the magistrate judge’s
report. He objected to the magistrate judge’s determination
that his encounter with Officer Crowder was consensual, that
Officer Crowder’s testimony was credible, that the activation
of the squad car’s emergency lights did not constitute a sei-
zure, that Officer Crowder had reasonable suspicion when he
activated the emergency lights, and that he was not placed
under arrest when he was handcuffed. He contended that the
facts demonstrated Officer Crowder “relied on nothing more
than the name ‘Jennifer Johns’ to detain Mr. Pace, and that
3
[was] not sufficient to establish reasonable suspicion.”
These arguments did not persuade the district court. In a
written opinion, the court overruled Mr. Pace’s objections
and adopted the magistrate judge’s report and recommenda-
tion. The court held that Mr. Pace’s initial encounter with Of-
ficer Crowder was consensual, that Officer Crowder had rea-
sonable suspicion to conduct a limited investigatory stop to
4
check Mr. Pace’s license, and that, based on the totality of
the circumstances, the squad car’s emergency lights were ac-
5
tivated appropriately as part of an investigatory stop.
3 R.31 at 12.
4 R.37 at 17.
5 “Officer Crowder had reasonable suspicion to conduct an investigatory
stop—when Officer Crowder activated his emergency lights and when he
took Defendant’s license back to the police vehicle.” Id. at 21.
No. 21-2151 7
Finally, the district court held that Officer Crowder had not
placed Mr. Pace under arrest by handcuffing him during the
search of the SUV. Having made these determinations, the
district court denied the motion to suppress.
Mr. Pace then pleaded guilty but reserved his right to ap-
peal the district court’s ruling on the suppression motion.
The probation office prepared a Presentence Report and did
not deem him eligible for safety-valve relief under 18 U.S.C.
6
§ 3553(f). Mr. Pace maintained that he was eligible for the
safety valve, was not subject to a mandatory minimum sen-
tence, and was entitled to a two-level reduction in his offense
7
level. Under Mr. Pace’s interpretation of § 3553(f)(1), he was
eligible for safety-valve relief because he did not have a prior
2-point violent offense, as required under § 3553(f)(1)(C).
Noting a division between the circuits on the issue, Mr. Pace
also contended that the rules of lenity and fair warning
should apply.
At the sentencing hearing, the district court rejected
Mr. Pace’s interpretation of safety valve eligibility found in
§ 3553(f)(1). The district court had previously addressed and
rejected arguments identical to Mr. Pace's in United States v.
Howell, No. 20-CR-30075-1, 2021 WL 2000245 (C.D. Ill. May
19, 2021). Relying on that opinion, the district court
6 The safety valve requires federal courts to impose a sentence “without
regard to any statutory minimum sentence” if the defendant satisfies the
five requirements set forth in § 3553(f)(1)–(5).
7 A defendant who qualifies for the safety valve also receives a two-level
guideline reduction. See U.S.S.G. § 2D1.1(b)(18) (“If the defendant meets
the criteria set forth in subdivisions (1)–(5) of subsection (a) of § 5C1.2 …
decrease by 2 levels.”).
8 No. 21-2151
concluded that Mr. Pace's proposed interpretation gave rise
to absurd results. The court therefore sentenced Mr. Pace to
the statutory minimum sentence of 60 months. Mr. Pace filed
a timely notice of appeal.
II
DISCUSSION
A.
In examining a district court’s denial of a motion to sup-
press, we review its findings of historical fact for clear error
and its conclusions of law de novo. See United States v. Ruiz,
785 F.3d 1134, 1140–41 (7th Cir. 2015); United States v. Eymann,
962 F.3d 273, 281 (7th Cir. 2020).
1.
Mr. Pace first submits that his initial encounter with Of-
ficer Crowder was not consensual. Mr. Pace contends that af-
ter Officer Crowder learned of his “completely innocent ex-
planation” for his presence in the parking lot—being lost and
looking for a friend’s home—he nevertheless detained him on
nothing more than a hunch. In response, the Government,
noting that Mr. Pace voluntarily exited his vehicle and com-
menced a conversation with the officer, submits that his inter-
action with Officer Crowder was a consensual encounter.
A seizure occurs when “taking into account all of the cir-
cumstances surrounding the encounter, the police conduct
would have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his
business.” Florida v. Bostick, 501 U.S. 429, 437 (1991) (quotation
omitted). “Whether a police-citizen encounter is consensual is
a question of fact, and we therefore review it for clear error.”
No. 21-2151 9
United States v. Whitaker, 546 F.3d 902, 906 (7th Cir. 2008). The
Supreme Court has stated clearly that there is no constitution-
ally cognizable seizure “simply because a police officer ap-
proaches an individual and asks a few questions.” Bostick, 501
U.S. at 434. Indeed, we have noted expressly that in a consen-
sual encounter “the degree of suspicion [that is] required is
zero.” United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.
1988).
In determining whether an encounter is consensual, we
have provided a nonexclusive, non-exhaustive list of factors
for the district courts to consider:
• where the interaction took place, including whether
it was in public;
• how many police officers were present;
• the extent to which the police presence was threaten-
ing;
• whether the officers made any show of weapons or
physical force;
• the officers’ language and tone;
• whether the police suggested the defendant was sus-
pected of crime; and
• whether officers told the defendant he was free to
leave.
United States v. Holly, 940 F.3d 995, 1000 (7th Cir. 2019).
Here, the record supports the district court’s determina-
tion that the initial encounter was, viewed objectively, con-
sensual. It also reveals that the district court employed the ap-
propriate methodology in assessing the facts contained in the
record. The court considered the factors listed in Holly. It
noted that the encounter took place outside; Officer Crowder
10 No. 21-2151
did not force Mr. Pace to stop as his vehicle was already
parked; only one officer was present; there was no threaten-
ing presence or show of authority; and Mr. Pace moved about
freely during their initial interaction. Furthermore, when he
first stopped, Officer Crowder inquired whether Mr. Pace
needed help, and he did not act in a manner that would have
8
communicated to Mr. Pace that he could not leave. Reaching
9
a decision compatible with our case law, the district court
considered the applicable factors, all of which pointed to the
conclusion that the encounter was consensual. The district
court, therefore, did not clearly err.
2.
Mr. Pace next contends that the information that became
known to Officer Crowder following the initial encounter did
not establish reasonable suspicion to prolong the encounter.
In his view, Officer Crowder’s initial exchange with Mr. Pace
left him with only “hunches” that Johns and her mother were
10
involved with methamphetamine. Consequently, Officer
Crowder lacked reasonable suspicion to activate his emer-
gency lights, to reposition his squad car behind the SUV, to
8 R.19-2.
9 See, e.g., United States v. Lickers, 928 F.3d 609, 616 (7th Cir. 2019) (finding
it was reasonable for the officers to ask whether the defendant needed help
and noting that the Fourth Amendment is not triggered when “officers
merely approach an individual in a public place and ask a few questions.”
(quotation omitted)).
10In the evidentiary hearing, Officer Crowder testified that there were no
active warrants for Johns’s arrest, no active search warrants for her home,
and that he had received no tips that either she or her mother would re-
ceive methamphetamine that evening. R.25 at 57–58.
No. 21-2151 11
check the status of Mr. Pace’s driver’s license, or to determine
his criminal background, if any. In the Government’s view,
Officer Crowder had reasonable suspicion as a result of his
initial conversation with Mr. Pace. It submits that the officer
was therefore on solid ground when he took each of these ac-
tions.
It is well established that a police officer can stop and de-
tain briefly a person for investigative purposes when the of-
ficer has a reasonable suspicion, supported by articulable
facts, that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1,
21–22 (1968). “Reasonable suspicion exists only when an of-
ficer can point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion.” Eymann, 962 F.3d at 282 (quotation
omitted). Thus, “[w]hile reasonable suspicion requires some-
thing less than what is necessary to show probable cause, it
requires more than a mere ‘hunch.’” United States v. Ienco, 182
F.3d 517, 523 (7th Cir. 1999). Information lawfully obtained
during an initial consensual encounter “may provide the of-
ficer with reasonable suspicion of criminal conduct that will
justify prolonging the stop to permit a reasonable investiga-
tion.” United States v. Figueroa-Espana, 511 F.3d 696, 702 (7th
Cir. 2007).
Our examination of the record convinces us that the infor-
mation that Officer Crowder learned during the initial en-
counter justified his conclusion that additional investigation
was warranted. Given his reasonable suspicion that
Mr. Pace’s intended late-night visit to individuals suspected
of dealing in methamphetamine could involve illegal drug ac-
tivity, placing his vehicle behind Mr. Pace’s SUV, activating
the squad car’s lights, and then asking for Mr. Pace’s driver’s
12 No. 21-2151
11
license were reasonable steps for the officer to take. Specific,
articulable facts, when viewed objectively, justified a brief in-
vestigation to confirm or dispel the suspicion that Mr. Pace’s
12
visit was drug-related and not social.
We cannot accept the view that the information then
known to Officer Crowder was too vague to justify his course
of proceeding. The Government appropriately emphasizes
that: (1) within the last year, Officer Crowder had observed
Johns to be high on what he believed to be methamphetamine;
(2) two months prior, Johns had given Officer Crowder infor-
mation on methamphetamine use in Pleasant Hill, which had
led to an arrest; (3) Officer Crowder received information
from a task force officer that Johns and her mother were in-
volved in methamphetamine use; and (4) Johns’s neighbors
had complained to Officer Crowder about the amount of
11 Contrary to Mr. Pace’s assertion, this case is not like United States v. Se-
goviano, 30 F.4th 613 (7th Cir. 2022). In Segoviano, we determined that there
were absolutely no facts tying the defendant to the crime at issue, nor was
there “particularized suspicion” that he was engaged in wrongdoing.
Here, Mr. Pace was from out-of-town, in a parking lot late at night, and he
provided information to Officer Crowder that directly tied him to a
known methamphetamine user. While Officer Crowder was already sus-
picious that Johns was dealing narcotics from her home, it was Mr. Pace’s
explanation of his presence in Pleasant Hill that supplied the particular-
ized suspicion that he might be involved in dealing methamphetamine.
12 See Hayes v. Florida, 470 U.S. 811, 816 (1985) (“[I]f there are articulable
facts supporting a reasonable suspicion that a person has committed a
criminal offense, that person may be stopped in order to identify him, to
question him briefly, or to detain him briefly while attempting to obtain
additional information.”).
No. 21-2151 13
13
traffic at her home that was consistent with drug trafficking.
This information about Johns, in combination with Mr. Pace’s
explanation of why he was in Pleasant Hill so late in the even-
ing, supplied the reasonable suspicion that justified Officer
Crowder’s decision to detain Mr. Pace for further investiga-
14
tion. This prolongation of the encounter constituted an in-
15
vestigatory stop.
3.
Finally, Mr. Pace submits that even if Officer Crowder had
reasonable suspicion to detain him, he did not have probable
cause to arrest him. In Mr. Pace’s view, Officer Crowder ar-
rested him by placing him in handcuffs prior to the K-9 search
of the exterior of the SUV.
Following Mr. Pace’s denial of consent to search the SUV,
Officer Crowder then told Mr. Pace that he was going to con-
duct a free air sniff of the SUV with his canine partner. At the
evidentiary hearing, Officer Crowder explained that Mr. Pace
had been compliant through all his interactions with him, but
13 Appellee’s Br. 21–22.
14 See United States v. Yang, 39 F.4th 893, 901 (7th Cir. 2022) (recognizing
that while alternative inferences from what the officer observed could
have been drawn, the other potentially innocuous causes did not negate
reasonable suspicion).
15 See Florida v. Royer, 460 U.S. 491, 501 (1983) (noting that when a defend-
ant’s ticket and driver’s license were retained without any indication from
officers that he was free to depart, the defendant was effectively seized for
purposes of the Fourth Amendment); United States v. Ahmad, 21 F.4th 475,
481 (7th Cir. 2021) (holding that whether retention of a driver’s license
constitutes a seizure depends upon “how long and under what circumstances
the suspect’s identification documents were retained”).
14 No. 21-2151
he still believed that use of handcuffs was necessary for his
own safety. Officer Crowder testified, “I explained to him that
at this point that he was not under arrest, that I was going to
16
place him in restraints for my officer safety at that point.”
Mr. Pace’s hands were cuffed in front of his body, he was not
placed in the squad car, and he was still able to walk about
freely.
Mr. Pace now maintains that Officer Crowder arrested
him when the officer put him in handcuffs. As Mr. Pace sees
it, the record is devoid of any evidence that the handcuffing
accomplished any purpose other than to escalate the encoun-
ter into an arrest, an escalation which Officer Crowder had
planned from the outset. The Government takes a different
view. It counters that because Officer Crowder was the only
officer on the scene, he was justified in handcuffing Mr. Pace,
while he retrieved his canine partner from the squad car and
conducted a search of the SUV.
“Subtle, and perhaps tenuous, distinctions exist between a
Terry stop, a Terry stop rapidly evolving into an arrest and a
de facto arrest.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th
Cir. 1994). “We have been unwilling to hold that the hand-
cuffing of a suspect without probable cause to arrest is unlaw-
ful per se.” United States v. Smith, 3 F.3d 1088, 1094 (7th Cir.
1993). Instead, we have recognized the “‘rare’ case wherein
common sense and ordinary human experience convince us
that an officer believed reasonably that an investigative stop
could be effectuated safely only through the use of hand-
cuffs.” Id. (quoting United States v. Boden, 854 F.2d 983, 993
(7th Cir. 1988)). In short, we have “recognized a limited set of
16 R.25 at 42:16–19.
No. 21-2151 15
circumstances in which handcuffs are appropriate without
converting a Terry stop into a full arrest. Chief among them is
officer safety and the possibility of the presence of a weapon.”
Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017).
Although Officer Crowder admitted that he did not feel
threatened by Mr. Pace at any point during their interaction,
he certainly was entitled to take into consideration that he was
the only officer on duty and that back-up officers were over a
twenty-minute drive away. In making the decision to use
handcuffs, Officer Crowder also could take into account that
Mr. Pace was from out-of-town, that it was late at night, that
Mr. Pace had stated that he was in town to visit the home of a
suspected methamphetamine dealer, that Mr. Pace had a
criminal history of possessing methamphetamine, and that he
had denied consent for the search of his vehicle. Notably, Of-
ficer Crowder explicitly told Mr. Pace that he was not under
arrest.
The district court did not err in denying Mr. Pace’s motion
to suppress. Instead, it properly determined that Mr. Pace’s
initial encounter with Officer Crowder was consensual. From
the ensuing conversation, he gained reasonable suspicion that
justified detaining Mr. Pace for further investigation. Mr. Pace
was not placed under arrest until after the search of his SUV
and the discovery of methamphetamine. At that point, there
certainly was probable cause to arrest Mr. Pace. The district
court correctly denied Mr. Pace’s motion to suppress.
B.
We now turn to the sentencing phase of the district court
proceedings. Here, Mr. Pace contends that the district court
16 No. 21-2151
erred in not affording him the benefit of the “safety valve”
provision in 18 U.S.C. § 3553(f)(1).
“We review the district court’s interpretation of the safety-
valve provision under the statute and the sentencing guide-
lines de novo.” United States v. Collins, 924 F.3d 436, 441 (7th
Cir. 2019). The defendant bears the burden of establishing el-
igibility for the safety-valve exemption from a mandatory
minimum sentence. See United States v. Draheim, 958 F.3d 651,
658 (7th Cir. 2020).
1.
The safety valve provision “create[s] more flexibility in
sentencing by permitting courts to sentence below the mini-
mum sentences fixed by statute.” United States v. Syms, 846
F.3d 230, 235 (7th Cir. 2017). The provision is designed to ben-
efit “first-time, non-violent drug offenders who were not or-
ganizers of criminal activity and who have made a good-faith
effort to cooperate with the government.” Id. (quoting United
States v. Arrington, 73 F.3d 144, 147 (7th Cir. 1996)).
In order to qualify for the benefit of the safety valve pro-
vision, a defendant must satisfy certain requirements set out
in the statute. Specifically, the safety valve requires defend-
ants to satisfy five elements found in 18 U.S.C. § 3553(f), one
of which pertains to a defendant’s criminal history. In the
First Step Act of 2018, Congress replaced the criminal-history
element of § 3553(f)(1), which originally had only required a
defendant to not have more than one criminal history point,
with the current list of three criminal-history conditions now
found at § 3553(f)(1)(A)–(C). The relevant portion of the stat-
ute now states:
No. 21-2151 17
(f) Limitation on Applicability of Statutory Min-
imums in Certain Cases.—Notwithstanding
any other provision of law, … the court shall im-
pose a sentence pursuant to guidelines … with-
out 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 re-
sulting from a 1-point offense, as deter-
mined 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 de-
termined under the sentencing guide-
lines … .
§ 3553(f)(1) (emphasis added).
Mr. Pace submits that he is eligible for the safety valve be-
cause he does not meet the criterion of subsection (C): he does
not have a prior two-point violent offense. Mr. Pace asserts
that the word ‘and’ in § 3553(f)(1) “must be read in its natural,
conjunctive meaning, which only disqualifies defendants
who fail each of § 3553(f)(1)(A), (B), ‘and’ (C).” 17 The district
court disagreed and determined that satisfying even one of the
subsections listed in § 3553(f)(1) resulted in safety-valve inel-
igibility.
Mr. Pace continues to assert that a defendant is only dis-
qualified from the application of the safety valve if he fails to
17 Appellant’s Br. 36.
18 No. 21-2151
satisfy each of § 3553(f)(1)’s subsections (A), (B), and (C). In
response, the Government contends that when read as a
whole, the text, context, and purpose of § 3553(f) only allow
one interpretation: that a defendant is disqualified from the
safety valve if he has (A) more than four criminal history
points, or (B) a prior three-point offense, or (C) a prior two-
point violent offense. Thus, the Government asserts that
Mr. Pace is not eligible for the safety valve because he meets
the criteria of subsections (A) and (B).
2.
We have not yet had the occasion to address whether
§ 3553(f)(1) requires a defendant to meet all three subsections
or just one of the subsections to be eligible for the safety valve.
Three other circuits have addressed this question but have
reached differing conclusions. 18 The Eleventh Circuit held that
a defendant who meets any one of the three subsections is dis-
qualified from safety-valve eligibility. See United States v. Gar-
con, 997 F.3d 1301, 1306 (11th Cir. 2021) (adopting the disjunc-
tive approach). Notably, the Eleventh Circuit’s decision was
recently vacated as the court decided to take up the issue en
banc. 19 More recently, the Eighth Circuit held that “[a]
18 These two conclusions have been represented helpfully as the “conjunc-
tive” argument and the “disjunctive” argument. Here, Mr. Pace is assert-
ing the conjunctive argument by claiming that a defendant is only ineligi-
ble for safety-valve relief if he meets the criteria of all three subsections.
The disjunctive argument asserts that the use of “and” should be read as
“or,” thus meeting any one of the subsections makes a defendant ineligible
for safety-valve relief. This court also recognizes a similar question is be-
fore the Fifth Circuit, but no decision has been issued yet in United States
v. Palomares, No. 21-40247 (5th Cir. argued Feb. 1, 2022).
19 United States v. Garcon, 23 F.4th 1334 (11th Cir. 2022) (mem.).
No. 21-2151 19
defendant qualifies under § 3553(f)(1) if he ‘does not have—’
the criminal history points specified in (A), the prior offense
listed in (B), and the prior offense listed in (C).” United States
v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022). In contrast, the
Ninth Circuit held that only a defendant who meets the crite-
ria of all three subsections is disqualified. See United States v.
Lopez, 998 F.3d 431, 437 (9th Cir. 2021) (adopting the conjunc-
tive approach).
Here, the district court determined at the sentencing hear-
ing that Mr. Pace was not eligible for the safety valve because
he satisfied at least one of the subsections of § 3553(f)(1). The
district court recognized the disagreement among the circuits
on the issue but stated that the Ninth Circuit’s reasoning in
Lopez had not convinced it that its previous decision on the
same issue in Howell, 2021 WL 2000245 was incorrect. In How-
ell, the district court provided several reasons for rejecting the
defendant’s safety-valve argument: (1) the conjunctive inter-
pretation rendered part of § 3553(f)(1) superfluous and gave
rise to absurd results; (2) the legislative history of the First
Step Act’s Safety Valve expansion supported a disjunctive in-
terpretation; and (3) the rule of lenity did not apply.
The primary arguments addressed by the parties on ap-
peal are based on the statutory text of § 3553(f), the legislative
history of the statute, the canons of construction when inter-
preting the statute, and the rule of lenity. We will address
each.
Mr. Pace’s chief argument relies on the plain language of
§ 3553(f)(1). He stresses the conjunctive use of the word “and”
as it is commonly understood. He stresses, as did the defend-
ants in Howell, “that if the list elements were meant to be in-
dividually prohibited, Congress would have used the word
20 No. 21-2151
‘or’ instead of ‘and,’ as ‘or’ normally functions disjunctively.”
Howell, 2021 WL 2000245, at *2. Mr. Pace also points to the use
of “and” in the other sections of § 3553(f) and notes that “and”
is used conjunctively between § 3553(f)(4) and (5). 20 Mr. Pace
also relies on our holding in United States v. Draheim, 958 F.3d
651, 658 (7th Cir. 2020), where we determined that the “and”
within § 3553(f)(4) is conjunctive. Thus, in two other places in
the same statute, argues Mr. Pace, the word “and” is used con-
junctively.
The Government maintains that the provision should be
read disjunctively. It stresses that the context in which lan-
guage is used matters and that the meaning of a word cannot
be determined in isolation. See Yates v. United States, 574 U.S.
528, 537 (2015). The Government submits that the word “and”
can mean “joint and several,” and § 3553(f)’s text suggests that
usage in this context. The Government also contends that the
statute’s use of the em-dash to connect the lead-in (“does not
have”) in § 3553(f)(1) to the subsection list (A)–(C) suggests
that the lead-in modifies each subsection. Finally, the Govern-
ment asserts that § 3553(f)(1) is the only provision of § 3553(f)
that sets out a list of elements framed in the negative, which
makes it structurally different from § 3553(f)(4), thus requir-
ing different treatment.
3.
“As with all issues of statutory interpretation, the appro-
priate place to begin our analysis is with the text itself, which
is the most reliable indicator of congressional intent.” Bass v.
20The use of the conjunctive between subsections (4) and (5) means that a
defendant is eligible for the safety valve if he can establish that he satisfies
each of subsections (1), (2), (3), (4), and (5).
No. 21-2151 21
Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322,
1324–25 (7th Cir. 1997) (citation omitted). We also read a stat-
ute “as a whole” rather than “as a series of unrelated and iso-
lated provisions.” Arreola-Castillo v. United States, 889 F.3d
378, 386 (7th Cir. 2018) (first quoting King v. St. Vincent’s Hosp.,
502 U.S. 215, 221 (1991); and then quoting Gonzales v. Oregon,
546 U.S. 243, 273 (2006)).
Here, the two suggested interpretations of § 3553(f)(1) are
not equally plausible. The conjunctive argument creates more
problems than solutions and renders a portion of the statute
superfluous. Although Mr. Pace is correct that the word
“and” is commonly utilized conjunctively and is used in that
way in other parts of § 3553(f), the context of the word “and”
in § 3553(f)(1) supports the view that it should be read dis-
junctively. If disqualification results only when a defendant
meets each of the subsections, subsection (A) is superfluous.
If a defendant meets subsection (B) requiring a three-point of-
fense, and subsection (C) requiring a two-point violent of-
fense, then he would automatically have more than the four
criminal history points required by subsection (A). This inter-
pretation of the statute therefore cannot be squared with the
canon against surplusage. 21 By contrast, the “disjunctive” in-
terpretation gives independent meaning to all three subsec-
tions; it does not render subparagraph (A) meaningless.
The placement of the word “and” also supports a disjunc-
tive reading. The use of the em-dash following subsection one
of § 3553(f) (see below) to connect the subsections
21 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 inopera-
tive or superfluous, void or insignificant.” (citation omitted)).
22 No. 21-2151
demonstrates that the lead-in “does not have” modifies each
subsection requirement:
(1) the defendant does not have—
(A) more than 4 criminal history points, ex-
cluding any criminal history points resulting
from a 1-point offense, as determined under
the sentencing guidelines;
(B) a prior 3-point offense, as determined un-
der the sentencing guidelines; and
(C) a prior 2-point violent offense, as deter-
mined under the sentencing guidelines … .
Thus, the em-dash serves to modify each requirement: does not
have more than 4 criminal history points, does not have a prior
3-point offense, and does not have a prior 2-point violent of-
fense. This reading of the statute gives proper meaning to the
word “and” while also treating the subsections as a checklist
of requirements a defendant must not have in order to be eli-
gible for the safety valve. Our colleagues in the Eighth Circuit
recently employed an approach that, although employing dif-
ferent nomenclature, is conceptually quite compatible with
our emphasis on the em-dash. In Pulsifer, 39 F.4th at 1021, that
court emphasized that “and” should be read conjunctively
and distributed across the subsections. It found a “strong tex-
tual basis [for preferring] a distributive reading of ‘and’ in
§ 3553(f).” Id. It noted: “The practical effect of reading ‘and’ in
its distributive sense is that § 3553(f)(1) serves as an eligibility
checklist for offenders who seek to avail themselves of the
limitation on statutory minimums. The text distributes the in-
troductory phrase ‘does not have’ across each statutory con-
dition.” Id. at 1022. In short, the most important textual basis
No. 21-2151 23
for this “distributive” reading is Congress’s use of the em-
dash.
In response to the em-dash argument, Mr. Pace invites our
attention to the em-dash at the end of the introductory para-
graph for the entire subsection (f) of the statute. Attributing
the same interpretation to this em-dash as we have to the in-
troductory phrase of section (f)(1) would destroy the entire
safety valve structure in § 3553(f) and would allow a person
to be eligible for the safety valve if he satisfied just one of the
provisions rather than all five of the provisions of section (f).
But again, context matters. Section (f) as a whole is framed in
the positive; subsection (f)(1) is framed in the negative. As a
defendant need not meet each of the requirements of subsec-
tions (A), (B), and (C) to satisfy § 3553(f)(1), he must meet the
requirements of (f)(1), (f)(2), (f)(3), (f)(4), and (f)(5) to fulfill the
requirements of § 3553(f).
Moreover, Mr. Pace’s interpretation of the statute pro-
duces absurd results. A defendant who had multiple three-
point violent offenses under subsection (B) would still be
safety-valve eligible so long as he did not have a prior two-
point violent offense under subsection (C). This interpretation
would afford leniency to defendants with more serious of-
fenses (those serious enough to receive three criminal history
points) while denying safety-valve eligibility to the defend-
ants with less serious offenses that received only two points.
Mr. Pace attempts to avoid the absurdity argument by
suggesting that Congress intended to expand the safety valve
in 2018 to give district courts more discretion in avoiding sit-
uations where drug offenders may receive an unduly harsh
sentence because of a mandatory minimum. But the Govern-
ment notes that the legislative history from the Senate
24 No. 21-2151
Judiciary Committee as well as guidance from the Sentencing
Commission support its disjunctive argument. The Senate Ju-
diciary Committee stated that the Act expanded safety-valve
relief “to include offenders with up to four criminal history
points,” but that offenders “with prior ‘3-point’ felony convic-
tions … or prior ‘2-point’ violent felony offenses … will not be
eligible.” S. Comm. on the Judiciary, 115th Cong., The First
Step Act of 2018 (S.3649)—as introduced, at 2 (2018). As for the
Sentencing Commission, it has previously stated that “a de-
fendant with any ‘2-point violent offense’ is ineligible for the
safety valve.” United States Sent’g Comm’n, First Step Act, at
6 (Feb. 2019).
Finally, Mr. Pace asserts that if this court finds there to be
two equally plausible interpretations of “and” in § 3553(f)(1)
then it is bound by the rule of lenity. The rule of lenity “ap-
plies only when, after consulting traditional canons of statu-
tory construction, we are left with an ambiguous statute.”
United States v. Shabani, 513 U.S. 10, 17 (1994). Only if, “after
considering text, structure, history, and purpose, there re-
mains a grievous ambiguity or uncertainty in the statute such
that the Court must simply guess as to what Congress in-
tended[,]” then the rule of lenity applies. Maracich v. Spears,
570 U.S. 48, 76 (2013) (quoting Barber v. Thomas, 560 U.S. 474,
488 (2010)).
Here, there are not equally plausible interpretations such
that the rule of lenity comes into play. As the Government
points out, “[t]he mere possibility of articulating a narrower
construction … does not by itself make the rule of lenity ap-
plicable.” Smith v. United States, 508 U.S. 223, 239 (1993). The
words of the statute, the canons of statutory construction, the
No. 21-2151 25
legislative history surrounding the statute, and the purpose
of the statute all support the disjunctive interpretation.
Section 3553(f) addresses when a defendant is eligible for
relief from a statutory minimum sentence. Section 3553(f)(1)
contains a list of certain prior offenses that a defendant must
not have to qualify for the safety valve. A defendant satisfies
§ 3553(f)(1), and thus may be eligible for safety-valve relief,
only if he does not have (A), he does not have (B), and he does
not have (C). Said another way, a defendant who meets any
one of subsections (A), (B), or (C) does not qualify for safety-
valve relief.
CONCLUSION
The district court properly denied Mr. Pace’s motion to
suppress. Officer Crowder had reasonable articulable suspi-
cion to detain him and search his vehicle under the Fourth
Amendment. Additionally, the district court properly found
that Mr. Pace did not qualify for safety-valve relief. Therefore,
the judgment of the district court is affirmed.
AFFIRMED
26 No. 21-2151
KIRSCH, Circuit Judge, concurring. I join the opinion but
write separately to explain my understanding of 18 U.S.C.
§ 3553(f)’s safety valve. Section 3553(f)(1) is conjunctive, not
disjunctive. The statute conjoins three separate conditions
that the defendant must show he does not satisfy:
[T]he court shall impose a sentence … without
regard to any statutory minimum sentence, if
the court finds at sentencing … that—(1) the de-
fendant does not have—(A) more than 4 criminal
history points, excluding any criminal history
points resulting from a 1-point offense, as deter-
mined under the sentencing guidelines; (B) a
prior 3-point offense, as determined under the
sentencing guidelines; and (C) a prior 2-point vi-
olent offense, as determined under the sentenc-
ing guidelines[.]
18 U.S.C. § 3553(f) (emphases added). A conjunctive reading
of “and” does not require us—as the dissent sees it—to read
“and” as cumulative, joining the conditions together as if they
had been bracketed. Rather, a conjunctive “and” can have a
distributive or joint (cumulative) sense. Garner’s Dictionary
of Legal Usage 639 (3d ed. 2011); see Scialabba v. Cuellar de
Osorio, 573 U.S. 41, 71 (2014) (how “and” works in 8 U.S.C.
§ 1153(h)(3) “depends, like many questions of usage, on the
context”). Applied to § 3553(f)(1), the distributive “and” re-
quires the defendant to show that he does not have (A), does
not have (B), and does not have (C), not the combination of
[(A) joined with (B) joined with (C)].
It is our job to decide from plain meaning and context
whether “and” is distributive or joint. See OfficeMax, Inc. v.
United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J.,
No. 21-2151 27
dissenting) (“Whether to interpret the preceding words as
distributed over the conjoined elements or not depends on the
context of the sentence, and what we externally know about
the conjoined elements.”). Here, the context is a checklist of
conditions. In a list like this, the plain meaning is that the de-
fendant must satisfy all three negative requirements individ-
ually, not cumulatively. Plain readers naturally distribute the
“does not have” in § 3553(f)(1). The three conditions do not
jump out as joint (combining (A), (B), and (C)). That’s why the
Ninth Circuit had to provide readers the word “cumula-
tively”: “This structure requires a defendant to prove that he
or she does not meet the criteria in subsections (A), (B),
and (C), cumulatively.” United States v. Lopez, 998 F.3d 431, 436
(9th Cir. 2021).
I recognize that in this statute and others like it, a distrib-
utive reading makes “and” interchangeable with a disjunctive
“or.” But Congress writes statutes like that all the time, and
for those statutes “courts have generally said [‘and’ and ‘or’]
are interchangeable and that one may be substituted for the
other.”* Conjunctive and Disjunctive Words, 1A Sutherland
Statutory Construction § 21:14 (7th ed.); see Peacock v. Lubbock
Compress Co., 252 F.2d 892, 893 n.1 (5th Cir. 1958) (“The words
* The dissent somehow reads this sentence as “lead[ing] us down a dan-
gerous path … of construing statutes to conform to what we judges think
Congress ‘really’ meant, rather than to follow the words that Congress ac-
tually used.” Post at 48. But this concurrence lays no such path. Consulting
Congress’s use of language in other statutes is an ordinary tool of statu-
tory interpretation. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.
440, 448 n.3 (2006) (looking “elsewhere in the United States Code” to aid
statutory interpretation).
28 No. 21-2151
‘and’ and ‘or’ when used in a statute are convertible, as the
sense may require.”). Here’s one example:
(b) Exemptions.—This chapter does not apply
to—
(1) a contract of the Federal Government or
the District of Columbia for the construction, al-
teration, or repair, including painting and deco-
rating, of public buildings or public works;
(2) any work required to be done in accord-
ance with chapter 65 of this title;
(3) a contract for the carriage of freight or
personnel by vessel, airplane, bus, truck, ex-
press, railway line or oil or gas pipeline where
published tariff rates are in effect;
(4) a contract for the furnishing of services
by radio, telephone, telegraph, or cable compa-
nies, subject to the Communications Act of 1934
(47 U.S.C. 151 et seq.);
(5) a contract for public utility services, in-
cluding electric light and power, water, steam,
and gas;
(6) an employment contract providing for
direct services to a Federal agency by an indi-
vidual; and
(7) a contract with the United States Postal
Service, the principal purpose of which is the
operation of postal contract stations.
41 U.S.C. § 6702(b) (emphasis added). Had Congress used
“or” instead of “and,” this distributive list would mean
No. 21-2151 29
exactly the same thing. It certainly cannot be that the only con-
tract exempted by 41 U.S.C. § 6702(b) is an employment con-
tract of the federal government or D.C. with USPS providing
for direct services to a federal agency by an individual for the
carriage of freight or personnel, for the furnishing of telecom-
munication services, and for public utility services. There’s no
contract in America that satisfies all those conditions. Yet the
dissent’s bracketing approach would exempt only such a su-
per-contract. But everyone intuitively knows that Chapter 67
of Title 41 (“this chapter”) “does not apply” to any contract
that satisfies any of the six enumerated criteria. The statutory
reader distributes the “does not apply.”
There are numerous other examples in the federal code.
Take 18 U.S.C. § 845(a), which lists seven exceptions to federal
crimes about explosive materials. If the dissent’s cumulative
“and” were forced into the statutory list, § 845(a) would cre-
ate a single exception with seven requirements: only the reg-
ulated transportation of military small-arms explosives that
are used in medicines, antique devices, and tribal fireworks
displays would be exempted. See also 26 U.S.C. § 9831(a)
(chapter would be inapplicable only to governmental group
health plans with fewer than two participants); 41 U.S.C.
§ 8302(a)(2) (section would be inapplicable only to articles,
materials, or supplies for use outside the United States, pro-
cured by a reciprocal defense procurement memorandum of
understanding that is also somehow a contract with an award
value that is not more than the micro-purchase threshold un-
der 41 U.S.C. § 1902). And sometimes Congress uses “or” in-
stead of “and” to mean the same thing. See, e.g., 7 U.S.C.
§ 138a(e) (“or” could be changed to “and” with no semantic
shift); 46 U.S.C. § 3202(d) (same).
30 No. 21-2151
The dissent concedes that, in these examples, “whether the
list ends with ‘and,’ ‘or,’ or nothing makes no difference.”
Post at 48. Still, it finds them inapposite, reasoning that, unlike
§ 3553(f)(1), “[t]here is nothing cumulative about the items”
on these “simple list[s]” expressed in these other statutes be-
cause “they do not work together to establish criteria.” Post at
49. But this circular reasoning assumes its conclusion: that the
list in § 3553(f)(1) is cumulative. Instead of these examples,
the dissent favors two of its own, one from 41 U.S.C. § 6702(a)
and another about a teenager seeking a driver’s license. Yet
Congress would need to rewrite § 3553(f)(1) before these
could aid our interpretation. Take the dissent’s driver’s license
example. The dissent frames eligibility as requiring three
“must haves”: the person “must have attained a specified age
(say, 16 years), … must be able to pass the vision test, and … must
be able to pass the road test.” Post at 49. But the safety valve eli-
gibility requires a defendant “not have” three things. A better
framing for the dissent’s example would be: “Under Illinois
law, anyone is eligible to drive who does not have—(A) an age
below 16 years old; (B) inadequate vision (as assessed by the
required vision test); and (C) inadequate road safety skills (as
assessed by the required road test).” It‘s clear that a person’s
eligibility to drive turns on them not being under 16 years old,
not having inadequate vision, and not lacking adequate road
safety skills. The reader naturally distributes the phrase “does
not have” to each of the three lettered conditions. No one
would suggest that this law would authorize a 12 year old
with perfect vision and road-safety skills to drive.
The government has provided a common-sense approach
that I include here in full:
No. 21-2151 31
In other contexts, statements with the form
“You must not A and B” have a different mean-
ing—a meaning that still uses the word “and”
in the conjunctive, but that distributes the pref-
atory phrase “you must not” individually to
each item that follows. Take the advice: “To be
healthy, you must not drink and smoke.” This
directive also shares the form “You must not A
and B.” But a reasonable listener would under-
stand it, in context, to mean that he must refrain
not merely from drinking and smoking in com-
bination, but also from engaging in either activ-
ity in isolation. The listener would reasonably
distribute the prefatory phrase “you must not”
to each item individually, even though the
phrase is not repeated. Or, to illustrate the same
point with parentheses, the listener would inter-
pret the statement as: NOT (A) AND NOT (B).
Sometimes, a distributive reading offers the
only natural interpretation of a statement. Im-
agine a public announcement states, “Under
Florida law, every citizen is eligible to vote this
November, but this rule does not extend to—
(A) minors under the age of 18; (B) individuals
who fail to register with the Secretary of State
by the statutory deadline; and (C) convicted fel-
ons still serving their sentences.” It is evident
that a person’s eligibility to vote hinges on not
being a minor, not being an unregistered per-
son, and not being a convicted felon. The reader
should distribute the phrase “does not extend
to” to each of the three lettered subparagraphs.
32 No. 21-2151
No one would suggest that this announcement
authorizes an unregistered 35-year-old prison
inmate (much less every 6-year-old with an un-
blemished rap sheet) to vote.
En Banc Brief for the United States in Support of Government
Appeal at 19–20, United States v. Garcon, 2022 WL 831883 (11th
Cir. March 14, 2022) (No. 19-14650-U).
The Eighth Circuit has gotten § 3553(f)(1) right. See United
States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022). Finding
§ 3553(f)(1) obviously conjunctive because of the “and,” the
court held that § 3553(f)(1)’s “text distributes the introductory
phrase ‘does not have’ across each statutory condition” and
“serves as an eligibility checklist for offenders who seek to
avail themselves of the limitation on statutory minimums.” Id.
at 1022. Meanwhile, the Eleventh Circuit had changed “and”
to “or,” meaning defendants are ineligible for the safety valve
if they satisfy statutory condition (A) or (B) or (C). See United
States v. Garcon, 997 F.3d 1301, 1305 (11th Cir. 2021), reh’g en
banc granted, opinion vacated, 23 F.4th 1334 (11th Cir. 2022).
This ineligibility checklist is the opposite framing—though
the same result—of the Eighth Circuit’s eligibility checklist.
One last observation. The dissent notes that Congress
could have made this whole thing easier by using “or” in the
first place. But even “or” is not rock solid: Pace would argue
that he was eligible for the safety valve because he didn’t sat-
isfy one of the three conditions. His theory would be that “or”
means he has to prove only that he does not have one of A or
B or C. As I see it, Congress could have drafted this statute
using no connecting word at all, e.g.:
No. 21-2151 33
[T]he court shall impose a sentence … without
regard to any statutory minimum sentence, if
the court finds at sentencing … (1) the defend-
ant does not have—
(A) more than 4 criminal history points,
excluding any criminal history points re-
sulting from a 1-point offense, as deter-
mined under the sentencing guidelines;
(B) a prior 3-point offense, as determined
under the sentencing guidelines;
(C) a prior 2-point violent offense, as de-
termined under the sentencing guide-
lines.
I bring this up to note that regular readers do not even pro-
cess the word “and” or “or” in a checklist like this or an ex-
emption list like 18 U.S.C. § 845(a). Regardless of which word
is used before the final item in the list or whether any word is
used at all, we simply read each item as separately covered by
the negative prefatory phrase.
Reading § 3553(f)(1) as a conjunctive “and” distributing
“does not have” across all three statutory conditions, I agree
with the result: A defendant is eligible for the safety valve
only if, under the Guidelines, 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 vio-
lent offense. That’s the plain reading in a statutory checklist
context. Pace is therefore ineligible. The district court should
be affirmed both on the denial of the motion to suppress and
the application of the safety valve, so I join the opinion.
34 No. 21-2151
WOOD, Circuit Judge, dissenting in part. This case requires
us to don the hat of an expert grammarian employed by a leg-
islative drafting office in order to determine whether Roger
Pace was eligible for relief from the five-year mandatory min-
imum sentence that applied to his drug crime. My colleagues
ably set out the facts and procedural history of the case, which
presents two questions: whether the district court correctly
denied Pace’s motion to suppress, and whether it properly
read the so-called safety-valve statute, 18 U.S.C. § 3553(f), for
sentencing purposes. I agree with their disposition of the sup-
pression motion, and so I join Part II.A. of the opinion. Regret-
tably, however, I am not persuaded that their reading of sec-
tion 3553(f) is correct. For the reasons I explain here, I believe
that the district court had the authority to impose a sentence
less than the five-year statutory minimum, see 21 U.S.C.
§ 841(b)(1)(B)(viii), and so I would remand to allow the dis-
trict court to exercise that discretion.
Like the majority, I begin with the language of the safety-
valve statute:
(f) Limitation on applicability of statutory mini-
mums in certain cases.—Notwithstanding any other
provision of law, in the case of an offense under section
401, 404, or 406 of the Controlled Substances Act (21
U.S.C. 841, 844, 846), … the court shall impose a sen-
tence pursuant to guidelines promulgated by the
United States Sentencing Commission under section
994 of title 28 without regard to any statutory mini-
mum sentence, if the court finds at sentencing, after the
Government has been afforded the opportunity to
make a recommendation, that—
(1) the defendant does not have—
No. 21-2151 35
(A) more than 4 criminal history points, ex-
cluding 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 deter-
mined under the sentencing guidelines;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other dan-
gerous 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 de-
termined 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 Govern-
ment 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 Govern-
ment is already aware of the information shall not pre-
clude a determination by the court that the defendant
has complied with this requirement.
36 No. 21-2151
Information disclosed by a defendant under this
subsection may not be used to enhance the sentence of
the defendant unless the information relates to a vio-
lent offense.
18 U.S.C. § 3553(f) (emphasis added).
The critical part for Pace’s case is subsection 1, which sets
out three criteria that disqualify a defendant from safety-
valve eligibility. Those items—subparts (A), (B), and (C)—are
linked by the word “and.” In everyday English, the word
“and” is a conjunction that signifies that all items in a list are
included; we contrast it with the conjunction “or,” which has
a disjunctive meaning—any one item on the list will suffice. It
is painfully obvious that Congress did not use the word “or”
to connect the three subparts of section 3553(f)(1). A defend-
ant is disqualified, therefore, only if the defendant meets all
three criteria of subpart (1) (as well as the requirements in
subparts (2) through (5) of section 3553(f)). Whether wisely or
foolishly, Congress used the word “and,” and as judges it is
our duty to apply the law as it is written.
My colleagues strain against that normal English under-
standing of “and.” They offer several reasons for their conclu-
sion that, in this part of this statute, the word “and” actually
means “or.” They fear that the conjunctive reading (i.e. the one
that requires a defendant to meet all three of the criteria)
would render part of the statute superfluous; that it would
lead to absurd results; and they insist that the “distributive
reading” must reflect what Congress “really” intended (i.e., a
disjunctive list in which the final connector must be read as
an “or” even though it says “and.”)
No. 21-2151 37
I see no need for these contortions. First, as long ago as
1978, the Supreme Court held that the courts must follow stat-
utory language, even if they think that the results would be
absurd or wildly out of proportion to the goals that Congress
has articulated. It did so in Tennessee Valley Authority v. Hill,
437 U.S. 153, 173 (1978), in which it had to decide whether the
Tennessee Valley Authority (TVA) would be in violation of the
Endangered Species Act if the agency completed and then op-
erated a dam that would lead to the extinction of a small fish
known as the snail darter. Despite the millions of dollars that
had been sunk into the dam project—dollars appropriated by
Congress, no less—the Court found no applicable exception
to the Act’s requirements. “To sustain that position,” Chief
Justice Burger wrote, would “force[] [the Court] to ignore the
ordinary meaning of plain language.” Id. Later in the same
opinion, he said that the Court was being “urged to view the
Endangered Species Act ‘reasonably,’ and hence shape a rem-
edy ‘that accords with some modicum of common sense and
the public weal.’ But is that our function? … Congress has
spoken in the plainest of words … .” Id. at 194.
The same is true here. Importantly, there is no need to
turn, as the concurrence implicitly does, to the arcane gram-
matical concept of the “conjunctive negative proof” in order
to read this statute. That is necessary only if one needs to dis-
ambiguate something, but no such task lies before us—the
plain language suffices. I cannot agree that the word “and” is
so esoteric that judges are unable to give it its normal mean-
ing. If I order ham and eggs for breakfast, then I assume that
the plate will contain some ham and some eggs, not just one
or the other. If I tell the wait staff that I do not want mustard
and pickles on my Impossible burger, the server knows not to
38 No. 21-2151
bring a burger with just mustard, or a burger with just pickles.
My request, in brief, is conjunctive.
For what it’s worth, my view is entirely consistent with the
discussion of the “negative proof” offered by Scalia and Gar-
ner in their book Reading Law: The Interpretation of Legal Texts
(2012). At page 120, they begin their discussion of the negative
proof with a table showing the conjunctive and disjunctive
variants:
Conjunctive Disjunctive
To be eligible, you must To be eligible, you must
prove that you have not A, B, prove that you have not A, B,
and C. or C.
All they have to say about the conjunctive proof, which our
statute exemplifies, is this: “With the conjunctive negative
proof, you must prove that you did not do all three.” Scalia &
Garner, supra, at 120. One might wonder whether they mean
all three simultaneously, or all three at any time, but the next
sentence on the disjunctive proof answers the question. “With
the disjunctive proof, … [i]f you prove that you did not do one
of the three things, are you eligible?” They answer that ques-
tion “no”—the person must have done none of these things.
Id. There would be no difference between the conjunctive and
disjunctive versions of this proof if the person also had to
prove that he had done neither A, nor B, nor C. The only way
in which the conjunctive proof does any work is if all three
things must exist together—that is, the example should be un-
derstood this way: “To be eligible, you must prove that you
have not [A, B, and C].”
No. 21-2151 39
As applied to our case, this means that unless the defend-
ant meets all three criteria set forth in subsections
3553(f)(1)(A) through (C), the defendant is eligible to move on
and attempt to satisfy the remainder of the statutory require-
ments. If the record shows, for instance, that the defendant
has six criminal history points but has never committed a
three-point offense and has never committed a two-point vio-
lent offense, then safety-valve relief is still available. The same
would be true if the defendant has four criminal history
points (satisfying (A)), and a prior three-point offense (satis-
fying (B)), but no two-point violent offense.
This is a straightforward reading of the statute. It also has
the virtue of consistency with Congress’s purpose in enacting
the safety-valve provision. Recall that the original version of
18 U.S.C. § 3553(f) was available only to defendants who did
not have more than one criminal history point. As our col-
leagues in the Ninth Circuit recognized, “[t]he low threshold
of more than one criminal history point resulted in many drug
offenders receiving mandatory-minimum sentences in in-
stances that some in Congress believed were unnecessary and
harsh.” United States v. Lopez, 998 F.3d 431, 435 (9th Cir. 2021).
Concern over this regime increased with the passage of time.
In 2009, Congress directed the U.S. Sentencing Commission to
research federal mandatory-minimum sentencing provisions.
Cong. Research Serv., R41326, Federal Mandatory Minimum
Sentences: The Safety Valve and Substantial Assistance Exceptions
1 (July 5, 2022). In response to significant support among fed-
eral judges and the general public for reforms to the safety-
valve exception, the Commission recommended that Con-
gress expand its scope. Id. Congress followed that recommen-
dation in the First Step Act of 2018, which amended section
40 No. 21-2151
3553(f) in a way designed to make it available to more defend-
ants.
We do no violence to the statute when we read it in a man-
ner that is consistent with this congressional purpose. The
straightforward reading (i.e., “and” means “and,” not “or”)
does not raise any of the problems about which the majority
is concerned—certainly not in a significant enough way to jus-
tify overriding the language that Congress chose. I note as
well that there is no need to reach conjunctive negative proofs
and other such esoterica if we follow the plain language of the
statute. The words mean what they mean, whether or not we
like the outcome.
Surplusage. The majority begins with its concern about sur-
plusage, and so I will start there, too. It posits that the con-
junctive reading (“and” means “and”) and the disjunctive
reading (“and” means “or”) “are not equally plausible” and it
is the latter reading that is preferable because “[t]he conjunc-
tive argument creates more problems than solutions and ren-
ders a portion of the statute superfluous.” Ante at 21. It goes
on to posit that “[i]f a defendant meets subsection (B) requir-
ing a three-point offense, and subsection (C) requiring a two-
point violent offense, then he would automatically have more
than the four criminal history points required by subsection
(A). This interpretation of the statute therefore cannot be
squared with the canon against surplusage.” Id.But, even putting to one side that the statute is doing real
work any time the two-point offense is not for a crime of vio-
lence, and any time the defendant does not have a three-point
offense, the surplusage problem the majority fears goes away
when we look at the statute more closely.
No. 21-2151 41
Subpart (A) speaks of criminal history points, while sub-
parts (B) and (C) are phrased in terms of offenses that are as-
signed a certain number of criminal history points by the Sen-
tencing Guidelines. See generally U.S.S.G., Chapter 4, Crimi-
nal History and Criminal Livelihood. The focus in subpart (A)
on criminal history points as determined by the Sentencing
Guidelines has consequences. Criminal history points are
based on past sentences, but not all past sentences generate
points. So, for example, under U.S.S.G. § 4A1.2(e), the Guide-
lines count only a “prior sentence of imprisonment exceeding
one year and one month that was imposed within fifteen years
of the defendant’s commencement of the instant offense … .”
There are other similar limitations, and defendants receive a
reduced number of points for certain juvenile offenses. Id.
§ 4A1.2(d).
In contrast, subparts (B) and (C) of the safety valve focus
directly on offenses, using a short-hand that generically cor-
relates offense severity with criminal history points. Nothing
suggests that an offense would not satisfy (B) or (C) because
it was committed 20 years ago, for example. Those subsections
look to past offenses, not the number of criminal history
points ultimately assigned.
With this distinction in mind, it is not hard to imagine sit-
uations in which the conjunctive reading does not render sub-
part (A) superfluous. Here are a few examples:
• A defendant who finished serving a sentence for
a two-point violent offense 11 years ago, thus
satisfying subpart (C), and who has a more re-
cent three-point nonviolent offense (satisfying
(B)), would not satisfy (A). His “criminal history
points … as determined under the sentencing
42 No. 21-2151
guidelines” would be three, because the guide-
lines instruct that two-point or lower sentences
older than 10 years should not be included in
the criminal history points calculation. See Id.
§§ 4A1.2(e)(2), (3).
• Similarly, a defendant who finished serving a
sentence for a three-point offense 21 years ago
(satisfying (B)) and a two-point violent offense
last year (satisfying (C)), would not satisfy (A).
His “criminal history points … as determined
under the sentencing guidelines” would be two,
because the guidelines instruct that no sentence
older than 15 years should be included in the
calculation. See Id. §§ 4A1.2 (e)(1), (3).
• To the same effect, a defendant who committed
a three-point offense (satisfying (B)), and a two-
point violent offense adjudicated by a tribal
court (satisfying (C)), would not satisfy (A). His
“criminal history points … as determined under
the sentencing guidelines” would be three be-
cause the guidelines instruct that points result-
ing from tribal court convictions be excluded.
See Id. § 4A1.2(i).
These are only a few of the examples one can imagine. Many
others could arise under plausible readings of the exclusions
found in sections 4A1.2(c) through (k) of the Guidelines.
At a minimum, this shows that it is not accurate to assume
that any defendant who satisfies (B) and (C) would automati-
cally have more than four criminal history points. This be-
comes clear when one accounts for the distinction between
No. 21-2151 43
offenses and points, and also appreciates that Congress used
that distinction with precision in the safety-valve statute.
One cannot rescue the claim of surplusage by treating of-
fenses that the guidelines do not include in the criminal his-
tory-score calculation as zero-point offenses that do not sat-
isfy either (B) or (C). Doing so would be inconsistent with the
structure of Chapter 4. It first assigns points to offenses based
on the length of the sentence, U.S.S.G. § 4A1.1. Only after that
does it specify which sentences should be counted and which
should be excluded. Id. § 4A1.2(c). It makes no sense to say
that a three-point offense suddenly ceases to be a three-point
offense just because a different provision of the Guidelines re-
quires it to be excluded for some reason.
Congress had good reason to write the safety-valve statute
this way. It achieves a coherent policy objective—that is, cate-
gorically to exclude violent recidivists with recent criminal
history from safety-valve eligibility. It does so with careful at-
tention to the structure of Chapter 4. And there is nothing in-
congruous about the policy goal. Congress sensibly could
have thought that in cases that meet the other criteria of sec-
tion 3553(f), when the defendant is not a violent recidivist,
judges should have the leeway to go below a statutory mini-
mum. Such a view would be consistent with other parts of the
First Step Act, which limits mandatory minimums in several
ways. See, e.g., Deal v. United States, 508 U.S. 129, 131 (1993)
(construing the pre-First Step Act version of 18 U.S.C.
§ 924(c)(1) to require the stacking of mandatory minimums
for second or subsequent offenses charged in the same case);
United States v. Davis, 139 S. Ct. 2319, 2324 n.1 (2019) (recog-
nizing that Deal was abrogated by the First Step Act, which
stipulates that only a second section 924(c)(1) violation
44 No. 21-2151
committed after a prior conviction under that statute becomes
final will trigger the mandatory minimum).
I recognize that the reading of section 3553(f)(1) that I pro-
pose is not the same as the one adopted by the Ninth Circuit
in Lopez, supra, 998 F.3d 431, even though I come to the same
ultimate result. We begin, however, at the same point: the
word “and” in the statute must carry its ordinary conjunctive
meaning. Id. at 436. And, as I explain below, we agree that
section 3553(f)(1) is “a conjunctive negative proof,” id., pursu-
ant to which the defendant must prove that he or she “did not
have” any one of the items listed in (A), (B), and (C) to be eli-
gible.
The Ninth Circuit’s answer to the superfluity concern,
however, was different from mine. It noted (and I agree) that
each of the subparts of section 3553(f)(1) has a different pur-
pose. Id. at 439. Next, it addressed the government’s argument
that anyone who satisfies subpart (B) (three-point offense) as
well as subpart (C) (two-point violent offense) will automati-
cally have more than four criminal history points and thus (A)
would not be doing any work. I have already provided my
answer to this argument (i.e., not all offenses result in points).
The Ninth Circuit gave a different one. It noted that the canon
against surplusage is “just a rule of thumb,” id. at 441, which
“does not supersede a statute’s plain meaning and structure.”
Id. And it pointed out that “a defendant who has only one
three-point violent offense under the Sentencing Guidelines
… would have (B) a ‘prior 3-point offense’ and (C) a ‘prior
2-point violent offense’ but would have only three criminal-
history points, not (A) ‘more than 4 criminal history points.’”
Id. at 440.
No. 21-2151 45
I have no reason to disagree with the Ninth Circuit’s con-
clusion that a three-point violent offense might simultane-
ously qualify as a three-point offense for purposes of subpart
(B) and a two-point violent offense for purposes of subpart
(C), and that it would leave the defendant below the threshold
specified in subpart (A). But this is not the best answer to the
claim of surplusage. It seems more likely that Congress in-
cluded subpart (A) in the First Step Act’s revision of the
safety-valve statute because it did not want eligibility to be
stripped from defendants on the basis of convictions that are
decades old. Requiring at least four criminal history points
achieves that end.
Absurd results. The majority is also concerned that the con-
junctive reading of section 3553(f)(1) inevitably leads to ab-
surd results. It argues that:
… Mr. Pace’s interpretation of the statute produces
absurd results. A defendant who had multiple
three-point violent offenses under subsection (B)
would still be safety-valve eligible so long as he did
not have a prior two-point violent offense under
subsection (C). This interpretation would afford le-
niency to defendants with more serious offenses
(those serious enough to receive three criminal his-
tory points) while denying safety-valve eligibility
to the defendants with less serious offenses that re-
ceived only two points.
Ante at 23–24. With respect, I am not troubled by this aspect
of the statutory scheme.
In my view, there is nothing absurd about treating violent
offenders who served shorter sentences differently from
46 No. 21-2151
nonviolent offenders who served longer ones. Many laws do
just that. The Armed Career Criminal Act, for instance, treats
felons with a history of “violent felonies” more harshly than
defendants without a history of violence (setting aside those
with a history of controlled-substance offenses), even when
the nonviolent defendants have served longer sentences. And,
as the Ninth Circuit observed, it makes the most sense to read
the third criterion as imposing a two-point floor on the of-
fense, not a two-point floor and ceiling. The rest of the safety-
valve statute puts special weight on violent crime, stripping
defendants of eligibility if the offense of conviction resulted
in “death or serious bodily injury,” 18 U.S.C. § 3553(f)(3), or if
the defendant used “violence or credible threats of violence”
or a firearm “in connection with the offense.” Id. § 2. Given
the extremely harsh sentences that for years have been im-
posed for nonviolent drug crimes—a history the First Step Act
aimed to correct or at least ameliorate—it is no surprise that
the Act shifted the focus of sentencing judges away from the
length of past sentences and toward the underlying substance
of the past crimes.
The Use of an Em-Dash. The majority turns to the use of an
“em-dash” at the top of the list that appears in section
3553(f)(1) to support its interpretation. This, it argues, sup-
plies a textual basis for the “distributive” reading that the con-
currence advocates. The use of the em-dash could be seen as
a signal that Congress “distributed” the introductory phrase
“does not have” across each statutory condition. Id. And in-
deed, this is the way that the Eighth Circuit reads the statute.
See United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022).
But that argument falls apart upon closer examination. It
does not reflect the way that the Senate drafts statutes, as one
No. 21-2151 47
can see by reference to the Senate’s Legislative Drafting Man-
ual. Section 321 of the Manual provides the following instruc-
tions for the formatting of “Items in a Series” (and note that
the Manual illustrates its own principles):
(a) LISTS.—
(1) FOLLOWING A DASH.—If a list is pre-
ceded by a dash—
(A) the item is subdivided and its margin
is indented;
(B) the first word in each item in the list is
lower case (unless a proper noun);
(C) each item (other than the last item)
ends with a semicolon; and
(D) the conjunction “and” or “or” appears
at the end of the next-to-last item only.
Section 3553(f)(1) follows these rules to a “T”. Moreover, as
subsection (D) of the Senate’s rule makes clear, its drafting
practices recognize the standard meaning of the word “and.”
Given the style rules—rules that are scrupulously en-
forced by the Senate’s Legislative Counsel—the only respon-
sible thing to do is to recognize that the em-dash has no mean-
ing, distributive or otherwise. What does matter is the con-
junction at the end of the list. That conjunction (in our statute,
“and”) is what dictates whether all of the items must be pre-
sent, or whether the list is in the disjunctive.
The Distributive Reading. This is the place where the con-
curring opinion has put its money, despite its admission that
“in this statute and others like it, a distributive reading makes
‘and’ interchangeable with a disjunctive ‘or.’” Ante at 27. It
48 No. 21-2151
brushes off this concern, however, with the comment that
Congress “writes statutes like that all the time.” Id. This, in
my view, overstates matters considerably and leads us down
a dangerous path—one that the Supreme Court has repudi-
ated—of construing statutes to conform to what we judges
think Congress “really” meant, rather than to follow the
words that Congress actually used. See Oklahoma v. Castro-
Huerta, 142 S. Ct. 2486, 2496 (2022) (“The Court may not ‘re-
place the actual text with speculation as to Congress’ intent.’
Rather, the Court ‘will presume more modestly’ that ‘the leg-
islature says what it means and means what it says.’”) (inter-
nal citations omitted); Bostock v. Clayton County, 140 S. Ct.
1731, 1754 (2020) (“Judges are not free to overlook plain stat-
utory commands on the strength of nothing more than sup-
positions about intentions or guesswork about expecta-
tions.”); see also Scalia & Garner, supra, at 57 (arguing that to
permit the alleged purpose of a statute to override its clear
text “is to provide the judge’s answer rather than the text’s
answer to the question”).
Worse, the concurrence has disregarded the distinction
between a simple list of examples and a list of criteria. The
statutes that the concurrence cites all take this form: “This
chapter shall not apply to [a list of terms A, B, and C].” In that
setting, whether the list ends with “and,” “or,” or nothing
makes no difference. Thus, looking at 41 U.S.C. § 6702(b), one
of the examples cited in the concurrence, we find this intro-
ductory language: “This chapter does not apply to [any of the
seven different things listed].” Ante at 27–28. Interestingly, the
previous subsection of the very same statute provides an ex-
ample of criteria that must be met, and it uses the word “and”
cumulatively:
No. 21-2151 49
This chapter applies to any contract or bid specifi-
cation for a contract whether negotiated or adver-
tised that—(1) is made by the Federal Government
or the District of Columbia; (2) involves an amount
exceeding $2,500; and (3) has as its principal pur-
pose the furnishing of services in the United States
through the use of service employees.
41 U.S.C. § 6702(a). No one would say that it is enough that
the contract was made by the federal government, or that it is
enough that it involves an amount exceeding $2,500, or that it
has the required principal purpose. All three criteria must be
met, which is why Congress used the word “and.”
The same is true of the other examples cited in the concur-
ring opinion. The statute setting out exceptions to federal
crimes about explosive materials, 18 U.S.C. § 845(a), sets out a
simple list. There is nothing cumulative about the items on
that list, and importantly, they do not work together to estab-
lish criteria that must be met before the exception will apply.
The same is true of the Tax Code’s list of exceptions for certain
health plans, 26 U.S.C. § 9831(a), and the Buy-America rules
found in 41 U.S.C. § 8302(a)(2). In contrast, think of the rules
that govern one’s ability to obtain a driver’s license: the per-
son must have attained a specified age (say, 16 years), and the
person must be able to pass the vision test, and the person
must be able to pass the road test. These are criteria, not a list
of examples, and one alone will not suffice. A 17-year-old who
has uncorrectable 20/300 vision may not drive, period.
The “Conjunctive Negative Proof.” Another argument that
may have some superficial appeal, but that breaks down on
closer examination, rests on the idea of the “conjunctive neg-
ative proof.” I have already addressed this, but a few
50 No. 21-2151
additional words are in order. To reiterate, let’s say that sec-
tion 3553(f)(1) has a structure that Reading Law calls the “con-
junctive negative proof.” See Scalia & Garner, supra, at 120.
That structure lends support to Pace’s reading, not the gov-
ernment’s, as the Ninth Circuit has explained. See Lopez, 998
F.3d at 437.
A negative proof, according to Scalia and Garner, is a stat-
utory structure that takes this form: “To be eligible, you must
prove that you have not A, B, ____ C.” Scalia & Garner, supra,
at 120. A conjunctive negative proof is one that fills the blank
before item C with “and”; a disjunctive negative proof is one
that fills it with “or.” Reading Law devotes several paragraphs
to the disjunctive structure, which is common in both law and
daily usage. Scalia and Garner’s takeaway about that struc-
ture’s meaning is best illustrated by the example they give: a
citizenship applicant required by statute to prove that she has
not previously “(1) been convicted of murder; (2) been con-
victed of manslaughter; or (3) been convicted of embezzle-
ment” must prove that she “has done none” of those things
before she can naturalize. Id. Put another way, if she has been
convicted of any one of the three listed offenses, she loses her
eligibility to naturalize.
Reading Law has much less to say about the rarer conjunc-
tive form of the negative proof—the form that concerns us
here. In fact, it gives us just one sentence to go on: “With the
conjunctive negative proof, you must prove that you did not
do all three.” Id. As I observed earlier, that maxim leaves open
the question whether all three conditions must exist at once
(i.e., do they count only if all three are present, and one alone
does not suffice) or whether the language must be read some
other way. To set the record straight: a conjunctive negative
No. 21-2151 51
proof renders the subject ineligible for the benefit in question
if and only if she flunks all of the proof’s requirements.
Start with an intuitive example: “To be acquitted of Oper-
ating while Intoxicated, you must prove that you did not
drink and drive.” All would agree that drinking and driving
are both fine on their own—it’s the combination of the two that
precludes acquittal. Similar two-condition examples abound
in common parlance:
• “To be acquitted of theft by fraud, you must prove
that you did not dine and dash.”
• “To be acquitted of distracted driving, you must
prove that you did not text and drive.”
English speakers will have no trouble interpreting these ex-
amples in a manner consistent with my view of the safety
valve, and Scalia and Garner would classify each as a two-
condition conjunctive negative proof. Intuitions may be less
clear when we turn directly to section 3553(f)(1) because con-
junctive negative proofs that, like the statute, have more than
two conditions occur more rarely. (This is no doubt because
the verbs tending to accompany such constructions—“mix,”
“combine,” “blend,” “fuse,” and so on—suggest the conjunc-
tive meaning themselves). Still, one can think of coherent ex-
amples where the structure alone conveys the conjunctive
meaning. To name one, a doctor lecturing about a lethal three-
way drug interaction might say: “To disqualify accidental
poisoning as the cause of death, you must establish that the
patient did not take drug X, drug Y, and drug Z.” Each of
those drugs might be fine if taken alone, but if all three are
taken together there might be a toxic interaction.
52 No. 21-2151
The rarity of examples involving multiple conjunctive
conditions does not change the key point, which is that the
conjunctive negative proof is—as the name suggests—con-
junctive. Whatever the number of terms, the structure has the
same logical upshot: the conditions that may preclude eligi-
bility do so only when they exist jointly.
* * * *
Congress is the master of the statutes it passes, and it is not
for us to assess their wisdom. There is nothing irrational, ab-
surd, superfluous, or otherwise faulty about applying section
3553(f)(1) straightforwardly, allowing the word “and” to
mean “and,” and observing the distinctions drawn in the Sen-
tencing Guidelines between offenses and the number of crim-
inal history points that are countable. I therefore respectfully
dissent from Part II.B. of the majority’s opinion.