United States v. Howell

UNITED STATES OF AMERICA, Plaintiff, v. BRANDON HOWELL, Defendant.

Case No. 20-cr-30075-1

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION

May 19, 2021

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court is Defendant's Motion for Determination of Statutory Sentencing Range (d/e 38). For the reasons set forth below, Defendant's motion is DENIED.

I. BACKGROUND

On December 2, 2020, an Indictment (d/e 5) was returned charging Defendant Howell and a codefendant with conspiracy to distribute cocaine and methamphetamine and distribution of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)-(B). On March 17, 2021, Defendant Howell filed the pending Motion (d/e 38) along with a supporting Memorandum of Law (d/e 39). Defendant requests a favorable determination as to the meaning of 18 U.S.C. § 3553(f)(1), a determination that his prior conviction under 720 ILCS 5/32-4a(a) is not a "crime of violence" under 18 U.S.C. § 16, and a hearing on his motion at "the earliest possible date." D/e 38, pp. 4-5. On March 19, 2021, Defendant filed a Supplemental Memorandum of Law (d/e 40) in support of his Motion. On April 1, 2021, the Government filed a Response (d/e 41) to Defendant's Motion. Defendant filed a Reply (d/e 42) to the Government's Response on April 23, 2021, and the Government filed a supplemental Response (d/e 43) on May 7, 2021.

II. ANALYSIS

Defendant's Motion asks the Court to interpret 18 U.S.C. § 3553(f), the so-called "safety valve" provision. 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). Before 2018, the criminal history requirement imposed by § 3553(f)(1) limited safety valve eligibility to defendants who "d[id] not have more than 1 criminal history point, as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1) (2012). The First Step Act 2018 expanded safety valve eligibility by relaxing subsection (f)(1)'s criminal historyrequirement. The statute now provides, in relevant part, that:

]T]he court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum 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—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines

18 U.S.C. § 3553(f) (emphasis added). Here, Defendant's safety valve eligibility hinges on the meaning of the underlined "and," the last word in subparagraph (B). Defendant argues that the "and" is conjunctive, such that only those defendants whose criminal histories include more than 4 criminal history points, and a prior 3-point offense, and a prior 2-point violent offense are ineligible for the safety valve. The Government's position is that the"and" functions disjunctively, such that any defendant who has either more than 4 criminal history points, or a prior 3-point offense, or a prior 2-point violent offense is ineligible.

Criminal history points are assigned according to the rules set forth in § 4A1.1 of the U.S. Sentencing Guidelines. A prior offense that resulted in a sentence of imprisonment of more than 13 months results in 3 criminal history points, while a prior offense resulting in a sentence of between 60 days and 13 months of imprisonment results in 2 criminal history points. In other words, subparagraph (B), which is satisfied by a "prior 3-point offense," covers serious felonies, while subparagraph (C), which is satisfied by a "prior 2-point violent offense," covers violent offenses that are not serious felonies.

The parties agree that Defendant has more than 4 criminal history points under subparagraph (A) and a prior 3-point offense under subparagraph (B). Defendant argues that his criminal history does not include a "prior 2-point violent offense" under subparagraph (C), while the Government argues that Defendant's 2007 conviction for Harassment of a Witness in violation of 720 ILCS 5/32-4a(a) is a "prior 2-point violent offense." Because theCourt finds that Defendant is ineligible for the safety valve regardless of whether his 2007 conviction is a crime of violence, the Court does not reach the crime-of-violence issue. Additionally, because Defendant's motion turns on a purely legal question of statutory interpretation, the Court will decide the motion on the basis of the parties' briefs rather than granting Defendant's request for a hearing.

The Seventh Circuit has never specifically addressed the issue of whether § 3553(f)(1) should be interpreted conjunctively or disjunctively. While several district courts, and the Eleventh Circuit, have addressed the issue, these decisions are not binding on the Court. See United States v. Garcon, No. 19-14650, 2021 WL 1972237 (11th Cir. May 18, 2021) (adopting the disjunctive reading because conjunctive reading renders part of § 3553(f)(1) superfluous); United States v. Ingram, 2021 WL 1813178 (C.D. Ill. May 6, 2021) (adopting the disjunctive reading because conjunctive reading produces superfluities and absurd results); United States v. Adame, No. 1:18-CR-00391-BLW, 2019 WL 5191823 (D. Idaho Oct. 15, 2019) (similar); United States v. Lopez, No. 19-CR0261-L, 2019 WL 3974124 (S.D. Cal. Aug. 21, 2019) (finding 18 U.S.C.§ 3553(f)(1) to be "ambiguous" and adopting the conjunctive interpretation after applying the rule of lenity). In the absence of binding authority, the first step in resolving any question of statutory interpretation is to "start with the text of the statute to ascertain its plain meaning." Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016). This inquiry considers both "the particular statutory language at issue" and "the language and design of the statute as a whole." Id. (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).

Defendant's argument relies primarily on a straightforward reading of the plain text of § 3553(f)(1). As Defendant notes, the word "and" ordinarily functions conjunctively, and when the last two items of a list of prohibited items are joined by an "and," "the listed things are individually permitted but cumulatively prohibited." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 119 (2012). Accordingly, the phrase "don't drink and drive" means that drinking is allowed and driving is allowed, but doing both together is prohibited. Defendant argues that if the list elements were meant to be individually prohibited, Congress would have used the word "or" instead of "and," as "or"normally functions disjunctively.

The Government agrees that "and" usually functions conjunctively but argues that in this particular instance the phrase "does not have," which introduces subparagraphs (A)-(C), should be applied to each individual requirement separately, such that

[A defendant is safety valve eligible if]—

(1) the defendant does not have—

(A) more than 4 criminal history points . . . ;

(B) a prior 3-point offense . . . ; and

(C) a prior 2-point violent offense . . . .

reads in sentence form as

[A defendant is safety valve eligible if] the defendant 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 offense.¹

Both readings are grammatically plausible. The conjunctive reading has the advantage of conforming with the normal operationof the word "and." Elsewhere in § 3553, however, the presence of an em dash before a list in statutory language indicates that the word or phrase preceding the dash should be distributed to modify each of the succeeding list items individually. See 18 U.S.C. § 3553(a)(2) (distributing the phrase "the need for the sentence imposed" to modify each of the succeeding subparagraphs); Mitchell v. Chapman, 343 F.3d 811, 830 (6th Cir. 2003) (explaining that the use of an em dash to introduce a list can mean that the list items following the em dash individually modify the term preceding the em dash). To choose between these two grammatically plausible alternatives, the Court considers all the "traditional tools of statutory interpretation." Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170 n.5 (2021); see United States v. Draheim, 958 F.3d 651, 658 (7th Cir. 2020) (relying on text, legislative history, and statutory purpose of § 3553(f) to determine the unambiguous meaning of "and" in § 3553(f)(4)).

A. The Conjunctive Interpretation Renders Part of § 3553(f)(1) Superfluous and Gives Rise to Absurd Results

While grammatically plausible on its face, the conjunctive interpretation suggested by Defendant runs afoul of the "well-established principle[] of statutory interpretation" under which "[i]nterpretations that result in provisions being superfluous are highly disfavored." River Rd. Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 651 (7th Cir. 2011), aff'd sub nom. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012). Any defendant whose criminal history includes one 3-point offense and one 2-point violent offense will necessarily have at least five criminal history points. Since subparagraph (A) is satisfied by any defendant with "more than 4 criminal history points" not from 1-point offenses, any defendant who satisfies subparagraph (B) by having a "prior 3-point offense" and satisfies subparagraph (C) by having a "prior 2-point violent offense" necessarily has at least 5 criminal history points that do not result from 1-point offenses, and therefore satisfies subparagraph (A) as well. Under...