Pulsifer v. U.S.:  Supreme Court limits criminal-history “safety valve” relief under First Step Act

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           A defendant seeking “safety valve” relief under the First Step Act for criminal history must not fall into any of the three listed ineligible categories, the U.S. Supreme Court held March 15 in Pulsifer v. United States.

           The criminal history “safety valve” provision of 18 U.S.C. Sec. 3553(f)(1) provides that a mandatory minimum sentence will not apply if “the defendant does not have” (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense; (B) a prior 3-point offense; “and” (C) a prior 2 point-violent offense.

           Mark Pulsifer pleaded guilty to a drug offense which required a mandatory minimum of 15 years unless he qualified for “safety valve” relief.

           Pulsifer had two prior convictions, each for a 3-point offense.

           He claimed he was eligible for “safety valve” relief because his criminal record lacked a 2-point violent offense.  He claimed the “and” in Sec. 3553(f) requires that a defendant meet all three subsections of the statute to be ineligible for relief. 

           The Government claimed that because he fell into one of the statute’s three subsections – subsection (B) — he was ineligible.

           The U.S. District Court denied relief.

           The Eighth Circuit affirmed.

           The Supreme Court granted cert. to resolve a circuit split.

Holding

           The Court, in a 6-3 opinion, held that a defendant is eligible for criminal history “safety-valve” relief only if he does not have any of the items listed in Sec. 3553(f)(1).

           Paragraph (f)(1) “creates an eligibility checklist, and demands that a defendant satisfy every one of its conditions”, the Court ruled.

           This meaning comes from the “text and context” of the statute, the Court said. “It specifies three necessary conditions for safety-valve relief – that the defendant not have more than four criminal history points, not have a prior three-point offense, and not have a prior two-point violent offense.”

           Reading Paragraph (f)(1) to say that a defendant is not eligible only if they meet all three subsections would create “two statutory difficulties”, the Court said.

           The first is that “Subparagraph (A) would become superfluous – without any operative significance”, the Court said.  “That is because if a defendant has a three-point offense under Subparagraph (B) and a two-point offense under Subparagraph (C), he will always have more than four criminal history points under Subparagraph (A).”

           The second is that such a reading “would allow relief to defendants with more serious records while barring relief to defendants with less serious ones”, the Court said. 

           For example, a defendant with “five criminal history points from a prior three-point offense and a prior two-point violent offense” would not be eligible for relief, but a defendant with “15 criminal-history points from five prior three-point offenses, every last one of a violent nature but … no two-point violent offense” would be eligible, the Court said, even though the latter defendant “exhibits greater recidivism, lengthier sentences, and more violence.”

           By contrast, the Government’s reading of the statute properly “sorts defendants for relief (or not) based on the seriousness of their criminal history” and does so “without a hitch”, the Court said.

           “When the defendant has committed multiple non-minor offenses, he cannot get relief (Subparagraph A)”, the Court said.  “And so too when he has committed even a single offense punished with a lengthy prison sentence (Subparagraph B) or involving violence (Subparagraph C).”

           “Only a defendant who has none of those markers – a defendant who can check off every one of the three ‘does not have’ requirements – is eligible for relief,” the Court held.

           Pulsifer argued his reading of the statute must prevail under the rule of lenity.

           “The problem is that we do not view Paragraph (f)(1) as genuinely ambiguous”, the Court said.

           The Court acknowledged that there are “two grammatically permissible readings of the statute when viewed in the abstract”, but Pulsifer’s view “creates glaring superfluity” and does not sort “more serious from less serious criminal records”.

           “The two possible readings thus reduce to one – leaving no role for lenity to play”, the Court said.

           “Because Pulsifer has two prior three-point offenses totaling six points, he is not eligible”, the Court concluded.  “It makes no difference that he does not also have a prior two-point violent offense.”

Dissent

           Justice Gorsuch, joined by Justices Sotomayor and Jackson, dissented.

           “Our traditional practice of construing penal laws strictly falls by the wayside”, Gorsch said.  “Replacing all that are policy concerns we have no business considering.”