United States v. Palomares, 21-40247

52 F.4th 640

UNITED STATES of America, Plaintiff—Appellee,

v.Nonami PALOMARES, Defendant—Appellant.

No. 21-40247

United States Court of Appeals, Fifth Circuit.

FILED November 2, 2022

Francesco Valentini, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before Jolly, Willett, and Oldham, Circuit Judges.

E. Grady Jolly, Circuit Judge:

The district court sentenced appellant Nonami Palomares to a 120-month "mandatory minimum" sentence for smuggling heroin. She argues the district court erred because 18 U.S.C. § 3553(f), more commonly referred to as the First Step Act's "safety valve" provision, exempts drug offenders like Palomares, with sufficiently minor criminal histories from mandatory minimum sentences.

The relevant part of the statute states that criminal defendants are eligible for relief only if:

(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)(1). Palomares argues that she was eligible for relief because her criminal history only ran afoul of sub-section (B)—she had a prior 3-point offense. Because the statute uses the word "and," she argues that she would only be ineligible if her criminal history satisfied sub-sections (A), (B), and (C). The Government disagrees, arguing that defendants who run afoul of any one of the three requirements are not entitled to relief.¹

The First Step Act's structure is perplexing. It opens with a negative prefatory phrase coupled with an em-dash ("does not have—") followed by a conjunctive list (A, B, and C). But we conclude that the statute's uncommon structure holds the key to unlocking its meaning. We agree with the Eighth Circuit that Congress's use of an em-dash following "does not have" is best interpreted to "distribute" that phrase to each following subsection. To be eligible for safety valve relief, a defendant must show that she does not have more than 4 criminal history points, does not have a 3-point offense, and does not have a 2-point violent offense. Because Palomares had a previous 3-point offense, she is ineligible for safety valve relief. We AFFIRM.

I.

Nonami Palomares pleaded guilty to possession with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. This offense carries a 10-year mandatory minimum sentence, with a maximum sentence of life imprisonment. 21 U.S.C. § 841(a)(1), (b)(1)(A) ; 18 U.S.C. § 2. The Presentence Investigation Report (PSR) calculated the advisory imprisonment range as 135 to 168 months, or if Palomares received a three-point reduction for acceptance of responsibility, 97 to 121 months. But because of the mandatory minimum, the PSR elevated its calculated guideline range to 120 to 121 months.

Palomares objected to the PSR, arguing that she was eligible for relief under the safety valve. In particular, she argued that a plain reading of § 3553(f)(1) only requires mandatory minimum sentences for defendants whose history meets all three disqualifying criteria listed in subsections (A)–(C)—not just one. And because only one of the disqualifying criteria applied to her, she argued that she was eligible for relief.

The district court overruled her objection. While the district court conceded that there was no controlling authority on this question, it agreed with the Government's position that any of the disqualifying criteria in § 3553(f)(1) would render a defendant ineligible for safety valve relief. The district court granted Palomares a three-point reduction for acceptance of responsibility, agreed with the PSR's calculation of the applicable guideline range of 120 to 121 months' imprisonment, and sentenced Palomares to 120 months of imprisonment. Palomares timely appealed.

II.

A.

We begin, as always, with the text of the statute. See In re DeBerry , 945 F.3d 943, 947 (5th Cir. 2019) ("In matters of statutory interpretation, text is always the alpha."). But "we do not look at a word or a phrase in isolation. The meaning of a statutory provision ‘is often clarified by the remainder of the statutory scheme ....’ " Ramos-Portillo v. Barr , 919 F.3d 955, 960 (5th Cir. 2019) (quoting Util. Air Regul. Grp. v. E.P.A. , 573 U.S. 302, 321, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) ). "We consider the text holistically, accounting for the ‘full text, language as well as punctuation, structure, and subject matter.’ " Elgin Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Hum. Servs. , 718 F.3d 488, 494 (5th Cir. 2013) (quoting U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc. , 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) ).

The ordinary meaning of "and," which § 3553(f)(1) uses to join the three subsections, is conjunctive. See, e.g. , ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 116–25 (2012). "Or" is disjunctive. Conjunctive/disjunctive canon , BLACK'S LAW DICTIONARY (10th ed. 2014) ("[I]n a legal instrument, and joins a conjunctive list to combine items, while or joins a disjunctive list to create alternatives."). Palomares points to this straightforward linguistic rule and insists that because Congress used the word "and," the government would need to prove that her criminal history included all the sub-sections, (A), (B), and (C). Or stated differently, because her criminal history only included (B), she is eligible for this sentencing relief. We cannot agree.

"Authorities agree that when used as a conjunctive, the word "and" has "a distributive (or several) sense as well as a joint sense." BRYAN A. GARNER, GARNER'S DICTIONARY OF LEGAL USAGE 639 (3d ed. 2011). That is, the phrase "A and B" could mean "A and B, jointly or severally." Id.

As applied to § 3553(f)(1), a "joint" sense of "and" would mean that a defendant is eligible for relief unless the court finds that he does not jointly have all three elements listed in (A), (B), and (C). The "distributive" sense of the word would mean that the requirement that a defendant "does not have" certain elements of criminal history is distributed across the three subsections, and a defendant is ineligible if he fails any one of the three conditions.

United States v. Pulsifer , 39 F.4th 1018, 1021 (8th Cir. 2022). To determine whether "and" is used in a "joint" sense or a "distributive" sense in § 3553(f)(1), we must look to the context of the statute itself. In different words, the words here preceding the em-dash apply to each of the conditions that follow.

Section 3553(f)(1) uses an em-dash preceding a list, with each item set off by semi-colons. To be eligible for safety valve relief the defendant must show that she:

(1) ... 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)(1)(A)–(C). This structure, utilizing a negative preceding an em-dash followed by a conjunctive list, makes it likely that the phrase "does not have" independently applies to each item in the list (does not have (A), does not have (B), and does not have (C)). See Carroll v. Trump , 498 F. Supp. 3d 422, 433 n.42 (S.D.N.Y. 2020) ("[A]n em dash ... signif[ies] that the ... clause" that immediately precedes the dash "applies to all ... of the [items] that follow." (citing Act of June 25, 1948, ch. 646, 62 Stat. 982 (1948))), rev'd in part & vacated in part , 49 F.4th 759 (2d Cir. 2022). Read in this way, § 3553(f)(1) serves as an "eligibility checklist" for defendants who seek to avail themselves of the First Step Act's safety valve relief. Pulsifer , 39 F.4th at 1022. Suppose for example that you were about to enter a baseball stadium and you saw a sign that read:

To enter the stadium, you must not have—

(a) a weapon;

(b) any food; and

(c) any drink.

Readers would quickly understand that the phrase "must not have—" independently modifies each item in the list and thus creates a checklist of prohibited items. No baseball fan would insist that they could enter the stadium with a weapon just because they didn't have food or a drink.

i.

Such a natural reading was rejected by the Lopez majority. This distributive approach was described as "far-fetched and quixotic" for two reasons. Lopez , 998 F.3d at 441 n.11. First, it noted that no Ninth Circuit precedents had ever endorsed the distributive approach. Id. But neither did it cite a case rejecting it. Nor can we find one. The statute's unusual and grammatically difficult structure (a negative followed by an em-dash introducing a list of items set off with semi-colons joined by "and") is not common. The absence of any authority cuts neither way. Second, Lopez rejected the distributive approach because it reasoned that, applied consistently, it "would destroy the entire safety-valve structure and allow a defendant to receive safety valve relief if he or she met the criteria in § 3553(f)(1), § 3553(f)(2), § 3553(f)(3), § 3553(f)(4), or § 3553(f)(5)." Id. (emphasis in original). But this conclusion does not follow. The distributive reading cannot affect the rest of the statute because the list in § 3553(f)(1) works differently due to its...