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Full Opinion
PRELIMINARY PRINT
Volume 601 U. S. Part 1
Pages 124–186
OFFICIAL REPORTS
OF
THE SUPREME COURT
March 15, 2024
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
124 OCTOBER TERM, 2023
Syllabus
PULSIFER v. UNITED STATES
certiorari to the united states court of appeals for
the eighth circuit
No. 22–340. Argued October 2, 2023—Decided March 15, 2024
After pleading guilty to distributing at least 50 grams of methamphet-
amine, petitioner Mark Pulsifer faced a mandatory minimum sentence
of 15 years in prison. At sentencing, he sought to take advantage of
the “safety valve” provision of federal sentencing law, which allows a
sentencing court to disregard the statutory minimum if a defendant
meets fve criteria. Among those is the requirement, set out in Para-
graph (f)(1), that the sentencing court fnd 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
Page Proof Pending Publication
(C) a prior 2-point violent offense, as determined under the sentenc-
ing guidelines.
The Government argued that Pulsifer could not satisfy that requirement
because he had two prior three-point offenses totaling six criminal-
history points. In the Government's view, each of those prior offenses
disqualifed him under Subparagraph B and the six total points disquali-
fed him under Subparagraph A. But Pulsifer claimed he remained
eligible. He pointed out that his criminal record lacked a two-point
violent offense, as specifed in Subparagraph C. And in his view, only
the combination of the items listed in the subparagraphs could prevent
him from getting safety-valve relief. The District Court agreed with
the Government, and the Eighth Circuit affrmed.
Held: A defendant facing a mandatory minimum sentence is eligible for
safety-valve relief under 18 U. S. C. § 3553(f)(1) only if he satisfes each
of the provision's three conditions—or said more specifcally, only if he
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 violent
offense. Pp. 132–153.
(a) Each party offers a grammatically permissible way to read Para-
graph (f)(1). Under Pulsifer's reading, the word “and” joins three fea-
tures of a defendant's criminal history into a single disqualifying charac-
Cite as: 601 U. S. 124 (2024) 125
Syllabus
teristic; accordingly, a defendant is ineligible for the safety valve only if
he has the items listed in Subparagraphs A, B, and C in combination.
In the Government's view, “and” connects three criminal-history condi-
tions, all of which must be satisfed to gain safety-valve relief. In other
words, the court must fnd the defendant does not have A, does not have
B, and does not have C. Each of those readings is possible in the ab-
stract. The choice between the two can sensibly be made only by exam-
ining the content of Paragraph(f)(1)'s three subparagraphs, including
what they say, how they relate to each other, and how they ft with
other pertinent law. Pp. 132–141.
(b) The text and context of Paragraph (f)(1), as read against the
Guidelines, yield just one plausible statutory construction. The para-
graph creates an eligibility checklist, and specifes three necessary con-
ditions for safety-valve relief. Reading the paragraph as Pulsifer does
to set out a single condition—i. e., that the defendant not have the com-
bination of the characteristics listed in Subparagraphs A, B, and C—
would create two statutory diffculties that the Government's reading
does not. Pp. 141–149.
(1) Pulsifer's reading would render Subparagraph A superfuous
because a defendant who has a three-point offense under Subparagraph
B and a two-point offense under Subparagraph C will always have more
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than four criminal-history points under Subparagraph A. That reading
leaves Subparagraph A with no work to do: removing it from the statute
would make the exact same people eligible (and ineligible) for relief.
That kind of superfuity, in and of itself, refutes Pulsifer's reading.
When a statutory construction “render[s] an entire subparagraph mean-
ingless,” this Court has noted, the canon against surplusage applies with
special force. National Assn. of Mfrs. v. Department of Defense, 583
U. S. 109, 128. That is particularly true when, as here, the subpara-
graph is so evidently designed to serve a concrete function. Pp. 142–146.
(2) Pulsifer's reading would also create a second problem related to
Paragraph (f)(1)'s gatekeeping function. The Guidelines presume that
defendants with worse criminal records—exhibiting recidivism, lengthy
sentences, and violence—deserve greater punishment. Under the Gov-
ernment's reading, Paragraph (f )(1) sorts defendants accordingly.
When the defendant has committed multiple non-minor offenses, he can-
not get relief (Subparagraph A). And so too when he has committed
even a single serious offense punished with a lengthy prison sentence
(Subparagraph B) or one involving violence (Subparagraph C). Pulsi-
fer's reading, by contrast, would allow safety-valve relief to defendants
with more serious records while barring relief to defendants with less
serious ones. A defendant with a three-point offense and a two-point
126 PULSIFER v. UNITED STATES
Syllabus
violent offense would be denied relief. But a defendant with multiple
three-point violent offenses could get relief simply because he happens
not to have a two-point violent offense.
Contrary to Pulsifer's view, that anomalous result cannot be ignored
on the ground that a sentencing judge retains discretion to impose a
lengthy sentence. If Congress thought it could always rely on sentenc-
ing discretion, it would not have created a criminal-history requirement
in the frst instance. Instead, it specifed a requirement that allows
such discretion to operate only if a defendant's record does not reach a
certain level of seriousness. Pulsifer's construction of Paragraph (f)(1)
makes a hash of that gatekeeping function. Pp. 146–149.
(c) The uncontested fact that Congress amended Paragraph (f)(1) as
part of the First Step Act to make safety-valve relief more widely avail-
able does not assist in interpreting the statutory text here. Both par-
ties' views of the paragraph widen the opportunity for safety-valve re-
lief, and Pulsifer's interpretation is not better just because it would
allow more relief than the Government's. “[N]o law pursues its . . .
purpose[s] at all costs.” Luna Perez v. Sturgis Public Schools, 598
U. S. 142, 150. Here, where Congress did not eliminate but only cur-
tailed mandatory minimums, the Court can do no better than examin-
ing Paragraph (f)(1)'s text in context to determine the exact contours
Page Proof Pending Publication
of the defendants to whom Congress extended safety-valve relief.
Pp. 151–152.
(d) The Court rejects Pulsifer's efforts to invoke the rule of lenity.
Lenity applies only when a statute is genuinely ambiguous. For the
reasons explained above, although there are two grammatically permis-
sible readings of Paragraph (f)(1), in context its text is susceptible of
only one possible construction. That leaves no role for lenity to play.
Pp. 152–153.
39 F. 4th 1018, affrmed.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch,
J., fled a dissenting opinion, in which Sotomayor and Jackson, JJ., joined,
post, p. 155.
Shay Dvoretzky argued the cause for petitioner. With
him on the briefs were Parker Rider-Longmaid, Kyser
Blakely, and J. Robert Black.
Frederick Liu argued the cause for the United States.
With him on the brief were Solicitor General Prelogar, As-
Cite as: 601 U. S. 124 (2024) 127
Opinion of the Court
sistant Attorney General Polite, Deputy Solicitor General
Feigin, and Francesco Valentini.*
Justice Kagan delivered the opinion of the Court.
The “safety valve” provision of federal sentencing law ex-
empts certain defendants from mandatory minimum penal-
ties, thus enabling courts to give them lighter prison terms.
To qualify for safety-valve relief, a defendant must meet var-
ious criteria, one of which addresses his criminal history.
That criterion, in stylized form, requires that a defendant
“does not have A, B, and C”—where A, B, and C refer to
three ways in which past criminality may suggest future
dangerousness and therefore warrant a more severe sen-
tence. In brief (with details below), A, B, and C are “more
than 4 criminal history points,” a “3-point offense,” and a
“2-point violent offense.”
The question presented is how to understand the criminal-
Page Proof Pending Publication
history requirement. The Government contends that the
phrase “does not have A, B, and C” creates a checklist with
three distinct conditions. On that view, a defendant meets
the requirement (and so is eligible for safety-valve relief) if
he does not have A, does not have B, and does not have C.
Or stated conversely, a person fails to meet the requirement
(and so cannot get relief) if he has any one of the three. The
petitioner here instead contends that the phrase “does not
have A, B, and C” sets out a single, amalgamated condition
for relief. On his reading, a defendant meets the require-
ment (and is eligible for relief) so long as he does not have
*Briefs of amici curiae urging reversal were fled for the Americans for
Prosperity Foundation by Michael Pepson; for FAMM et. al by David
Debold, Jeffrey T. Green, David D. Cole, Brandon Buskey, Mary Price,
and Peter Goldberger; and for the National Association of Federal Defend-
ers by Vincent J. Brunkow and Michael Holley.
Philip D. Williamson fled a brief for Thomas R. Lee et al. as amici
curiae.
128 PULSIFER v. UNITED STATES
Opinion of the Court
the combination of A, B, and C. Or put conversely, he fails
to meet the requirement (and cannot get relief) only when
he has all three. Today, we agree with the Government's
view of the criminal-history provision.
I
Congress sometimes establishes mandatory minimum pen-
alties for crimes, including drug offenses. Those provisions
put a lower limit on a court's sentencing discretion, refecting
Congress's judgment that specifed conduct demands no less
than a specifed punishment. For drug offenses of the kind
involved here, the existence and length of minimum penalties
typically depend on the type and quantity of the drug at
issue, the harm resulting from the crime, and (relevant here)
the defendant's criminal history.
The safety-valve provision, 18 U. S. C. § 3553(f), offers
some defendants convicted of drug offenses an escape from
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otherwise applicable mandatory minimums. Under the pro-
vision, a court is to sentence a defendant “without regard to
any statutory minimum” if it fnds that fve criteria are met.
Ibid. Three of the criteria focus on characteristics of the
offense—in brief, whether the defendant used violence;
whether the crime resulted in death or serious injury;
and whether the defendant acted as a ringleader. See
§ 3553(f)(2)–(4). One of the criteria addresses the defend-
ant's cooperation with the Government. See § 3553(f)(5).
And one—the frst listed and the most relevant here—
concerns the defendant's criminal history. See § 3553(f)(1).
The complete text of the safety-valve provision is set out in
this opinion's appendix.
The criminal-history requirement—we usually call it Para-
graph (f)(1)—recently underwent a substantial revision,
making it easier for a defendant to meet. As originally
enacted, the paragraph limited safety-valve relief to defend-
ants who “d[id] not have more than 1 criminal history point,
as determined under the sentencing guidelines.” Vio-
Cite as: 601 U. S. 124 (2024) 129
Opinion of the Court
lent Crime Control and Law Enforcement Act of 1994, 108
Stat. 1985. What that meant in practice—we explain why
just below—was that anything more than a single minor
crime barred a defendant from gaining relief. But that is
no longer so. In the First Step Act of 2018, Congress re-
laxed the safety-valve provision's criminal-history require-
ment, enabling defendants with more signifcant criminal
records to qualify. Pub. L. 115–391, 132 Stat. 5221. Today,
Paragraph (f)(1) is met if “the court fnds at sentencing”
that:
the defendant does not have—
(A) more than 4 criminal history points, excluding
any criminal history points resulting from a 1-point of-
fense, 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
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under the sentencing guidelines.
And if the defendant also meets Section 3553(f)'s other four
criteria, he becomes exempt from a statutory minimum.
As the text makes clear, the new Paragraph (f)(1) (like the
old one) turns on the defendant's criminal-history points
under the Guidelines. In general, the severity of Guidelines
sentencing recommendations increases with the number of
criminal-history points the defendant has (often called his
criminal-history score). And the Guidelines assign more
points to more serious prior offenses. There is a caveat to
that rule, which will become pertinent later. See infra, at
143–146. Some prior convictions, even if for serious offenses,
do not add any points to a defendant's score. That is true, for
example, if the conviction is quite old or if it was rendered
by a foreign court. See U. S. Sentencing Guidelines (USSG)
§ 4A1.2(e)(3), (h). But putting such exceptions aside, convic-
tions resulting in longer prison sentences add more points
to a defendant's total. As previewed above, the Guidelines
130 PULSIFER v. UNITED STATES
Opinion of the Court
award one point for minor offenses—specifcally, for those
resulting in sentences of less than 60 days. In the new
Paragraph (f)(1), those minor sentences do not matter at all:
Because of the “excluding” phrase, they cannot, either alone
or in combination, prevent a defendant from gaining safety-
valve relief. But longer sentences, generating more points,
fall within the paragraph's notice. A prison sentence of be-
tween 60 days and 13 months earns two points under the
Guidelines. See § 4A1.1(b). So a conviction punished with
that sentence will count, for purposes of the paragraph, as a
“prior 2-point offense,” assuming it is also “violent” (as de-
fned in a nearby provision). § 3553(f)(1)(C), (g). Moving
up another notch, a sentence exceeding 13 months earns
three points under the Guidelines. See § 4A1.1(a). So a
conviction giving rise to that greater penalty (whether or not
violent) will qualify under the paragraph as a “prior 3-point
offense.” § 3553(f)(1)(B).
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This case involves a dispute about whether Paragraph
(f)(1) bars petitioner Mark Pulsifer from gaining safety-valve
relief. Pulsifer pleaded guilty in 2020 to distributing at
least 50 grams of methamphetamine. He faced a mandatory
minimum of 15 years in prison unless the safety-valve provi-
sion came to his aid. The Government claimed it did not
because Pulsifer could not meet its criminal-history require-
ment. Pulsifer had two relevant prior convictions, each for
a three-point offense. In the Government's view, that fact
disqualifed Pulsifer from obtaining relief several times over.
He had not just one but two “prior 3-point offense[s],” as
specifed in Subparagraph B of the requirement. And be-
cause three plus three equals six, he also had “more than 4
criminal history points,” as specifed in Subparagraph A.
But Pulsifer claimed that was still not enough. He pointed
out that his criminal record lacked a “2-point violent of-
fense,” as specifed in Subparagraph C. And in his view,
only the combination of the items listed in the three subpara-
Cite as: 601 U. S. 124 (2024) 131
Opinion of the Court
graphs—the full package, as it were—could prevent him
from getting safety-valve relief.
The District Court rejected Pulsifer's argument, ruling
that a defendant is “ineligible for safety valve” relief if he
has any of the “three things” specifed in Paragraph (f)(1).
App. to Pet. for Cert. 35a–36a. The mandatory minimum,
the court concluded, thus applied to Pulsifer's sentence.
The Court of Appeals for the Eighth Circuit affrmed.
The court framed the question as “in what sense the statute
uses the word `and.' ” 39 F. 4th 1018, 1021 (2022). In the
abstract, the court stated, the phrase “the defendant does
not have (A), (B), and (C)” might be read in two different
ways. It could mean that the defendant does not have the
combination of the “three elements listed in (A), (B), and
(C),” as Pulsifer urged. Ibid. Or it could mean, as the Gov-
ernment argued, that the defendant does not have every one
of those elements—in other words, that he does not have
Page Proof Pending Publication
(A), does not have (B), and does not have (C). In choosing
between those readings, the court found a “strong textual
basis” to prefer the Government's. Ibid. If Pulsifer were
right, the court explained, Subparagraph A would be “ren-
dered superfuous”—without the slightest effect. Ibid. “A
defendant who has a prior three-point offense under [Sub-
paragraph B] and a prior two-point violent offense under
[Subparagraph C] would always meet the criterion in [Sub-
paragraph A], because he would always have more than four
criminal history points.” Ibid. That was reason enough to
read Paragraph (f)(1) the other way—as an “eligibility check-
list” of three distinct conditions, each of which the defendant
must meet to qualify for safety-valve relief. Id., at 1022.
And on that view, the court concluded, Pulsifer could not
escape a mandatory minimum: Because he had a pair of
three-point offenses, it was simply “immaterial” that he did
not also “have a prior two-point violent offense.” Id., at
1022–1023.
132 PULSIFER v. UNITED STATES
Opinion of the Court
We granted certiorari, 598 U. S. ––– (2023), because the
Courts of Appeals have split over how to read the safety-
valve provision's criminal-history requirement.1 Today, we
adopt the Government's view, and so affrm the decision
below. A defendant is eligible for safety-valve relief under
Paragraph (f)(1) only if he “does not have” all three of the
items listed—or said more specifcally, does not have four
criminal-history points, does not have a prior three-point of-
fense, and does not have a prior two-point violent offense.
The paragraph thus creates an eligibility checklist, and de-
mands that a defendant satisfy every one of its conditions.
II
We start with Paragraph (f)(1)'s grammatical structure,
because Pulsifer's main argument (and initially the dissent's)
is that it resolves this case. See Brief for Pulsifer 16–20;
post, at 161–162 (opinion of Gorsuch, J.).2 Recall that the
Page Proof Pending Publication
paragraph requires a court to fnd that the defendant does
not have the features specifed in Subparagraphs A, B, and
C. “Because Congress used `and' to connect” those subpara-
graphs, Pulsifer contends, “a defendant is ineligible” for
safety-valve relief “only if he has the complete combo”—i. e.,
more than four criminal-history points plus a prior three-
point offense plus a prior two-point violent one. Brief for
Pulsifer 19. That result follows, Pulsifer claims, simply
1
Compare 39 F. 4th 1018 (CA8 2022) (case below) (holding that a defend-
ant is eligible for relief only if he does not have all three of the items
listed); United States v. Palomares, 52 F. 4th 640 (CA5 2022) (same);
United States v. Haynes, 55 F. 4th 1075 (CA6 2022) (same); United States
v. Pace, 48 F. 4th 741 (CA7 2022) (same), with United States v. Jones, 60
F. 4th 230 (CA4 2023) (holding that a defendant is eligible for relief so long
as he does not have any one of the items listed); United States v. Lopez,
998 F. 3d 431 (CA9 2021) (same); United States v. Garcon, 54 F. 4th 1274
(CA11 2022) (en banc) (same).
2
As later noted, infra, at 140, the dissent ultimately comes around to
the view that the meaning of Paragraph (f)(1) depends on context, see
post, at 168–169.
Cite as: 601 U. S. 124 (2024) 133
Opinion of the Court
from “what ordinary grammar says.” Tr. of Oral Arg. 3.
But in fact grammar does not say so much. There are two
grammatically permissible ways to read Paragraph (f)(1).
Yes, one is Pulsifer's. But the other is the Government's—
that a defendant is ineligible for relief unless he can satisfy
each of the paragraph's three conditions. The choice be-
tween the two, as this Part shows, is not a matter of gram-
matical rules. It can sensibly be made only by examining,
as the next Part does, the paragraph's content, as read in
conjunction with the Guidelines. Or, as we usually say in
statutory construction cases, by reviewing text in context.
“And,” in grammatical terms, is of course a conjunction—
a word whose function is to connect specifed items. Both
parties here agree with that elementary proposition. See
Brief for Pulsifer 18; Brief for United States 14. The word
“and,” each might say, means . . . well, and. Indeed, to the
extent elaboration is needed, both parties select the same
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defnition from the same dictionary. “And,” they recite in
concert, means “along with or together with.” Webster's
Third New International Dictionary 80 (1993); see Brief for
Pulsifer 18; Brief for United States 14.
Where things get more complicated is in fguring out what
goes along or together with what—or otherwise said, what
the “and” in Paragraph (f)(1) connects. As Pulsifer reads
the paragraph, the “and” joins three features of a defendant's
criminal history into a single disqualifying characteristic.
The conjunction of Subparagraphs A, B, and C produces the
thing he labels “the complete combo”; the question then be-
comes whether the defendant has or “does not have” that full
package. Brief for Pulsifer 19; § 3553(f)(1). Some grade-
school math notation may help reveal the proposed ordering.
It is as if Pulsifer inserted parentheses into the paragraph,
so that it asks whether “the defendant does not have (A, B,
and C).” Much as a student would solve “5 - (2 + 1)” by frst
adding 2 and 1 and then subtracting the sum from 5, so Pul-
sifer wants a court frst to combine A, B, and C and then to
134 PULSIFER v. UNITED STATES
Opinion of the Court
determine whether the defendant has the total. By con-
trast, the Government reads the statute without parenthe-
ses, and so arrives at a different conclusion. On its view,
the “does not have” language operates on A, and on B, and
on C consecutively, rather than on the three combined. So
the “and” connects three criminal-history conditions, all of
which must be satisfed to gain safety-valve relief. Or said
another way, Paragraph (f)(1) requires that the defendant
does not have A, and also does not have B, and fnally does
not have C. If he has even one, he cannot complete the req-
uisite checklist and so cannot gain the safety valve's benefts.
The Government's view rests on a routine aspect of
expression—that an introductory phrase (here, “does not
have”) may apply to, or modify, several terms coming after
it, one by one by one. Suppose a person says after visiting
a bookstore, “I bought a novel, a memoir, and a travel guide.”
That is just a more effcient way of saying “I bought a novel,
bought a memoir, and bought a travel guide.” The verb in
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the sentence carries over—some grammarians use the term
“distribut[es]”—to every item on the ensuing list. B. Gar-
ner, Dictionary of Legal Usage 639 (3d ed. 2011). That prac-
tice is pervasive, indeed inescapable, in every kind of speech
and writing. Consider this, perhaps half-remembered line
from childhood: “On Saturday he ate through one piece of
chocolate cake, one ice-cream cone, one pickle, one slice of
Swiss cheese, one slice of salami, one lollipop, one piece of
cherry pie, one sausage, one cupcake, and one slice of wa-
termelon.” E. Carle, The Very Hungry Caterpillar 15–16
(2018). The introductory words “ate through” apply inde-
pendently and equivalently to each of the ten foodstuffs that
follow. Or if that example seems too trifing, take a couple
from the Constitution. Article III provides that “[t]he judi-
cial Power shall extend to all Cases . . . arising under this
Constitution, the Laws of the United States, and Treaties.”
§ 2. That statement means—but says more concisely—that
the judicial power extends to cases arising under the Consti-
tution; extends to cases arising under federal law; and ex-
Cite as: 601 U. S. 124 (2024) 135
Opinion of the Court
tends to cases arising under treaties. The provision does
not (as Pulsifer's view might suggest) limit judges to hearing
the few cases arising simultaneously under all three kinds of
law. Similarly, Article I of the Constitution enables Con-
gress “[t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” § 8,
cl. 3. That authorization goes to commerce involving each
kind of entity, not just to commerce involving the three at
once. So again, the verb phrase operates on each term seri-
atim, not on the combination of the three.3
Pulsifer claims that verb phrases do not work the same
way when “framed in the negative.” Reply Brief 2. One
of his favorite examples is “don't drink and drive.” Brief
for Pulsifer 16. That “doesn't mean,” he observes, “that you
shouldn't drink and that you shouldn't drive, but only
[means] that you shouldn't do both at the same time.” Id.,
at 18 (emphasis deleted). So too, he says, for “don't clean
the bathroom with bleach and ammonia.” Id., at 12 (empha-
Page Proof Pending Publication
sis deleted). The prohibition does not go to bleach alone
and to ammonia alone; instead, it goes only to the two in
conjunction. To return to math notation, the statement is
best understood as “don't clean with (bleach and ammonia),”
rather than “don't clean with bleach and don't clean with am-
3
The dissent wrongly views this ordinary feature of language as a kind
of uncanny trick. To understand a verb as applying to each of several
ensuing terms (the dissent says) is to choose verbal “gymnastics” over
“natural” meaning. Post, at 164. The dissent's primary proof is that such
phrases can be rendered “with deleted words stricken and new ones added
in bold.” Post, at 163. Well, yes, but so what? It is true, as the dissent
might say, that “I bought (1) a novel, (2) a memoir, and (3) a travel guide” is
equivalent in meaning to “I bought (1) bought a novel, (2) bought a memoir,
and (3) bought a travel guide.” Cf. post, at 163–164 (similarly representing
Paragraph (f)(1)). But ordinary people still understand the verb to carry
over to all the books in the sentence. The strikeouts and boldface, far
from evidencing manipulation of meaning, just illustrate how expression
can naturally work. And that is so, contra the dissent (post, at 167), when
a sentence's subject is singular (rather than plural)—as shown by most of
the sentences in the paragraph above, many similar ones to come, see
infra, at 136, and the vast number a reader can make up on her own.
136 PULSIFER v. UNITED STATES
Opinion of the Court
monia.” See supra, at 133–134. And so too, he says, here:
Paragraph (f)(1) conditions relief on a court's fnding that a
defendant “does not have (A, B, and C),” rather than that he
“does not have A, does not have B, and does not have C.”
But for every negative statement Pulsifer offers up, an-
other cuts the opposite way (suggesting, as we later discuss,
that here grammar is not the primary determinant of mean-
ing). Consider two sentences discussed in The Cambridge
Grammar of the English Language. If someone says “I'm
not free on Saturday and Sunday,” the Grammar notes, he
most likely means “I'm not free on Saturday and I'm not free
on Sunday”; he is not saying that although he cannot go away
for a full weekend, he can make plans on one of those days.
See R. Huddleston & G. Pullum 1298–1299 (2002) (emphasis
deleted). Similarly, if a person says, “I didn't like his
mother and father,” he probably means “I didn't like his
mother and I didn't like his father”—not that he didn't like
the two in combination, but thought that either alone was
Page Proof Pending Publication
fne. Ibid. (emphasis deleted).4 Or take an example raised
in oral argument pertaining, like Paragraph (f)(1), to an
eligibility requirement: A hospital tells you that it can per-
form a medical procedure only if you “don't eat, drink,
and smoke for the preceding 12 hours.” See Tr. of Oral Arg.
6–8. Even Pulsifer's counsel agreed that he would not feel
free to have a steak and martini so long as he abstained
from tobacco. See ibid. The “don't” here, unlike in Pulsif-
er's examples, carries over to each action on the list (eating,
drinking, and smoking alike)—not just to the three in
tandem.
And if those examples of negatively framed statements,
both Pulsifer's and ours, seem a tad conversational, consider
4
So too, a manual of contract drafting observes that “[t]he more natural
meaning” of “Acme shall not notify Able and Baker” is “Acme shall not
notify Able and shall not notify Baker,” not that he shall not notify the
two together, but may notify either one. K. Adams, A Manual of Style
for Contract Drafting § 11.16, p. 212 (3d ed. 2013) (emphasis deleted).
Cite as: 601 U. S. 124 (2024) 137
Opinion of the Court
a statute strikingly similar in form to Paragraph (f)(1).
First return to that paragraph to remind yourself of how
it looks and reads. See supra, at 129. Now check out 34
U. S. C. § 20101(f):
As used in this section, the term “offenses against the
United States” does not include—
(1) a criminal violation of the Uniform Code of Mili-
tary Justice (10 U. S. C. 801 et seq.);
(2) an offense against the laws of the District of Co-
lumbia; and
(3) an offense triable by an Indian tribal court or
Court of Indian Offenses.
The “does not include” language at the top of course refers
independently to crimes satisfying (1), crimes satisfying (2),
and crimes satisfying (3)—not to whatever crimes manage to
satisfy (1), (2), and (3) all at once. Or said otherwise, the
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statute means exactly what it would mean if Congress had
stripped the phrase “does not include” from the prefatory
line and repeated it three times in the subsequent list. Con-
gress, we recognize, just opted to draft more concisely. And
so too it could have made that choice in drafting Paragraph
(f)(1)—with the “does not have” phrase referring to every
item that follows. No grammatical principle precludes that
understanding of what Congress wrote.
Pulsifer protests that using the word “or” (instead of
“and”) would have better conveyed the Government's read-
ing, but that claim also fails. His basic objection (echoed in
the dissent, see post, at 170–171) is that Congress could have
expressed its intent more clearly. “If the government is
right” about Paragraph (f)(1)'s meaning, Pulsifer asks, “why
didn't Congress just use `or'?”; doing so would have shown
“unequivocally” that a defendant must meet all three of the
specifed conditions. Reply Brief 16; Tr. of Oral Arg. 10.
But to begin with, we do not demand (or in truth expect)
that Congress draft in the most translucent way possible.
138 PULSIFER v. UNITED STATES
Opinion of the Court
We have “routinely construed statutes to have a particular
meaning even as we acknowledged that Congress could have
expressed itself more clearly.” Luna Torres v. Lynch, 578
U. S. 452, 472 (2016) (citing cases). And anyway, we doubt
that substituting “or” for “and” would have delivered us
from interpretive controversy. Instead, we would likely
have confronted the mirror image of the dispute before us.
The Government would have read the requirement that a
defendant “does not have A, B, or C” to mean that he “does
not have (A, B, or C).” So a defendant would get safety-
valve relief only if he doesn't have any of the three listed
criminal-history features. But Pulsifer, we suspect, would
have read the same requirement to mean that a defendant
“does not have A, does not have B, or does not have C.” So
he would get safety-valve relief as long as he doesn't have a
single one of the listed features. That reading too is possi-
ble when viewed only as a matter of abstract grammar, di-
vorced from any analysis of A, B, and C's content. Even
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with Pulsifer's proposed redrafting, then, the grammatical
back-and-forth would continue.5
In fact, we can see why a Congress wishing to express the
Government's view might have chosen to use “and.” Sup-
pose that before putting words to the page, Congress had
5
That is not to say, of course, that any negative statement involving the
word “or” is realistically capable of two meanings; the point is only that
context may drive such a statement in either direction. Consider two
examples. First, suppose a restaurant chef decides to buy broccoli if his
supplier “does not have spinach, eggplant, or caulifower.” That most
likely means the chef will buy broccoli only when the supplier is out of all
three other vegetables, not when he is out of just one. But second, sup-
pose the same chef typically places a food order if the restaurant “does
not have meat, produce, or bread.” That most likely means he'll place an
order when the restaurant runs out of one of those foodstuffs, not wait
until it is lacking all three. The grammar in the two statements is identi-
cal, but their most natural understanding is not. Here, content drives
meaning, so that in the one sentence, the absence of three items—and in
the other sentence, the absence of one item—triggers the relevant
purchase.
Cite as: 601 U. S. 124 (2024) 139
Opinion of the Court
decided (as the Government says) to create an eligibility
checklist, requiring a defendant to meet three distinct condi-
tions before getting safety-valve relief. In the subse-
quent drafting process, an “and” could well have seemed in-
tuitive. After all, on the Government's “checklist” view, a
defendant must meet every one of three conditions—this one
and this one and this one. Or said more concretely, the
defendant must not have “more than 4 criminal history
points” and must not have a “3-point offense” and must not
have a “2-point violent offense.” So why not use an . . .
“and”? It serves to connect the three necessary conditions
coming off the (effcient) prefatory language. In other
words, Congress might have thought that use of the conjunc-
tive word “and” would refect the needed conjunction of
three requirements.
Consider, as a summary of all these points, Pulsifer's own
main example, because it shows why Paragraph (f)(1)'s gram-
matical structure cannot decide this case—and points to the
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kind of analysis needed instead. Pulsifer offers a college
policy, with an “and” connecting three provisions:
All student-athletes are eligible for an academic scholar-
ship, provided that the student during the previous se-
mester did not—
(A) miss more than fve classes;
(B) fail to submit a paper in the semesterly, campus-
wide writing competition; and
(C) earn less than a 3.0 GPA.
Brief for Pulsifer 19 (emphasis deleted). In Pulsifer's view,
the policy is clear: A student may retain his scholarship un-
less he funks “all three” of the conditions. Ibid. So a stu-
dent, Pulsifer contends, is in the clear if he “submitted a
paper in the writing competition and earned a 3.4 GPA . . .
even though he missed seven classes.” Ibid. Which sounds
reasonable enough. But how about this one: A student who
misses only four classes, but fails to submit a competition
140 PULSIFER v. UNITED STATES
Opinion of the Court
paper and “earns” a 1.0 GPA. Or similarly, a student who
submits a (terrible) paper, while missing all his classes and
obtaining the same “D” average. Is it now so clear that the
policy allows a student to funk two of the conditions, rather
than requiring him to satisfy all three? Or is it, at the least,
uncertain? And even supposing not, consider a variation:
All student-athletes are eligible for an academic scholar-
ship, provided that the student during the previous se-
mester did not—
(A) fail a course;
(B) commit plagiarism; and
(C) get arrested.
A student would need a lot of confdence to argue that he
remains scholarship-eligible when he (A) failed a course, and
(B) committed plagiarism, but (C) managed to evade arrest.
That reading—Pulsifer's reading—is grammatically possible.
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But so too is the opposite—that a student must meet all
three conditions. And when we think about the content of
the policy—what (A), (B), and (C) actually say—against the
backdrop of all we know (or perchance all the college hand-
book tells us) about academic scholarships, we cannot read
the revised hypothetical in Pulsifer's way.
The takeaway is this: Paragraph (f)(1) cannot be construed
in the abstract, as if all a reader has to go on is the stripped-
down phrase “the defendant does not have A, B, and C.”
That might require the defendant not to have (A, B, and C)—
i. e., the combination of the three. Or it might require the
defendant not to have A, and not to have B, and not to have
C—i. e., each of the three. Really, it all depends. (It is no-
table that even the dissent must in the end concede the point,
noting that whether a speaker “intend[s] for a listener to
distribute words implicitly” depends on the context. See
post, at 168; supra, at 132, and n. 2). The way a reader as-
signs meaning to the phrase is to look at the substance of A,
B, and C—the items on the list and the way they interact,
Cite as: 601 U. S. 124 (2024) 141
Opinion of the Court
as against relevant background understandings. Recall a
couple of examples. See supra, at 135–136. We interpret
the injunction against drinking and driving in Pulsifer's
way—“do not (A and B)”—because the two activities are
usually perilous only in combination. We interpret the in-
junction against eating and drinking before surgery in the
Government's way—“do not A and do not B”—because each
activity alone is likely to have adverse consequence. Simi-
larly here, the meaning of Paragraph (f)(1) may become clear
if we examine the content of its three subparagraphs—what
they say and how they relate to each other—as well as how
they ft with other pertinent law. Or stated in the usual
language of statutory construction, the answer may lie in
considering the paragraph's text in its legal context.
III
A
Page Proof
And indeed, Pending
that inquiry into text and Publication
context makes Para-
graph (f)(1)'s meaning clear. The paragraph creates an eli-
gibility checklist. It specifes three necessary conditions for
safety-valve relief—that the defendant not have more than
four criminal-history points, not have a prior three-point of-
fense, and not have a prior two-point violent offense. Read-
ing the paragraph instead to set out a single condition—that
the defendant not have the combination of the listed char-
acteristics—would create two statutory diffculties. First,
Subparagraph A would become superfuous—without any op-
erative signifcance. 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.
Second, defendants' eligibility for relief would not corre-
spond to the seriousness of their criminal records. Instead,
a defendant with numerous violent three-point offenses could
get relief because he happens not to have a two-point offense.
The content of Subparagraphs A, B, and C, especially as read
142 PULSIFER v. UNITED STATES
Opinion of the Court
against the Guidelines, thus answers the statutory puzzle
here—reducing two grammatical possibilities to just one
plausible construction.
Begin with superfuity. Or actually with its absence—
because there is none under the Government's reading.
Each subparagraph does independent work, disqualifying de-
fendants from relief even when the others would not. Sub-
paragraph A disqualifes defendants who have more than
four criminal-history points (excluding those from a one-
point offense), even if they do not have a prior three-point
offense or a prior two-point violent offense. So, for exam-
ple, a defendant with three non-violent two-point offenses
will be barred. Subparagraph B, in turn, disqualifes de-
fendants who have any prior three-point offense, even if they
do not have a two-point violent offense or more than four
total points. And fnally, Subparagraph C disqualifes de-
fendants who have a prior two-point violent offense, even if
Page Proof Pending Publication
they do not have a three-point offense or more than four
points. The paragraph thus excludes (A) various repeat of-
fenders, along with anyone having even a single conviction
that (B) resulted in a suffciently long prison sentence or (C)
resulted in a shorter sentence but involved violence. Every
part of the paragraph has a function.
But that is not so under Pulsifer's reading, as a bit of arith-
metic reveals. Pulsifer's view, once again, is that Paragraph
(f)(1) disqualifes only defendants with the combination of the
characteristics in Subparagraphs A, B, and C—so more than
four criminal-history points, a prior three-point offense, and
a prior two-point violent one. But because 3 + 2 = 5, and
because 5 is more than 4, a defendant with a three-point of-
fense (Subparagraph B) and a two-point violent offense (Sub-
paragraph C) will necessarily have more than four history
points (Subparagraph A). So Subparagraph A becomes
meaningless: It does no independent work. Remove it from
the statute, and what is left will make the exact same people
eligible (and ineligible) for relief.
Cite as: 601 U. S. 124 (2024) 143
Opinion of the Court
And that kind of superfuity, in and of itself, refutes Pulsif-
er's reading. The problem here is no odd word or stray
phrase, which might have escaped Congress's notice. Pulsif-
er's reading would negate one of three—indeed, the frst of
three—provisions in the very paragraph he is trying to in-
terpret. When a statutory construction thus “render[s] an
entire subparagraph meaningless,” this Court has noted, the
canon against surplusage applies with special force. Na-
tional Assn. of Mfrs. v. Department of Defense, 583 U. S.
109, 128 (2018); see Chicago v. Fulton, 592 U. S. 154, 159
(2021). And still more when the subparagraph is so evi-
dently designed to serve a concrete function. In addressing
eligibility for sentencing relief, Congress specifed three par-
ticular features of a defendant's criminal history—A, B, and
C. It would not have done so if A had no possible effect.
It would then have enacted: B and C. But while that is the
paragraph Pulsifer's reading produces, it is not the para-
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graph Congress wrote.
To escape that quandary, Pulsifer contends that under the
Guidelines a three-point offense and a two-point offense do
not always total fve criminal-history points. (The dissent
reiterates Pulsifer's assertion. See post, at 175–177.) The
argument begins with a point not in dispute: Some prior con-
victions, as noted earlier, add zero points to a defendant's
criminal-history score. See supra, at 129. That is true if
the conviction is quite old; if it was rendered in a military,
tribal or foreign court; or if it merged into another conviction
because, for example, the two arose from “the same charging
instrument.” § 4A1.2(a)(2); see § 4A1.2(e), (g)–(i). The key
move in Pulsifer's argument is the next one: He claims that
a prior offense adding zero points to a history score can still
be a three-point or two-point offense under Paragraph (f)(1).
That happens, he says, when the sentence given for the of-
fense was long enough to otherwise add those points—
meaning, in the absence of the trait that reduced points to
zero. See Brief for Pulsifer 36–41. Take an example: A
144 PULSIFER v. UNITED STATES
Opinion of the Court
very old conviction contributes zero points to a defendant's
history score, no matter how long the sentence. Still, Pul-
sifer contends, it is a three-point offense when the sentence
given was suffciently long (over 13 months) to add three
points in a case not very old. And once that proposition is
accepted, Pulsifer says, superfuity disappears. Suppose a
defendant has, along with the old conviction just described,
a newer two-point violent offense. The old conviction, Pul-
sifer maintains, is a three-point offense satisfying Subpara-
graph B. And the new conviction satisfes Subparagraph C.
But the defendant has only two criminal-history points—zero
from the old offense and two from the new—which is not
enough to satisfy Subparagraph A. So that subparagraph,
Pulsifer concludes, has an effect: It keeps such a defendant
eligible for safety-valve relief.
But Pulsifer's argument craters because its key move is
wrong: Contrary to his view, there is no such thing under
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the Guidelines as a three-point or two-point offense adding
zero points. Under Subparagraphs B and C, the terms “3-
point offense” and “2-point violent offense” are “as deter-
mined under the sentencing guidelines.” § 3553(f)(1)(B)–(C).
And the Guidelines assign points to an offense only in the
context, and for the purpose, of “[a]dd[ing]” them to a de-
fendant's “criminal history” “total.” § 4A1.1. So a convic-
tion becomes a three- or two-point offense only when—only
because—it adds three or two points to a total history score.
Or said the other way round, only the addition of three or
two points to that score makes the offense a three- or two-
point offense. The corollary is that a conviction adding zero
points—because, say, it is very old—cannot be a three-
or two-point offense. It is (unsurprisingly) a zero-point
offense—whatever would be the case if the conviction were
newer. For that reason, such a conviction cannot aid Pulsif-
er's effort to fnd a function for Subparagraph A. Because
only the addition of three or two points can make an offense
Cite as: 601 U. S. 124 (2024) 145
Opinion of the Court
a three- or two-point offense, a defendant who has a prior
three-point offense and a prior two-point violent offense will
always have (arithmetic again) more than four points total.
The Guidelines' mechanics thus foreclose Pulsifer's effort to
erase the superfuity his reading creates.6
Yet more, Pulsifer's effort founders on the Guidelines'
judgments, refected in Paragraph (f)(1), about which prior
offenses warrant enhanced punishment. Consider what Pul-
sifer's zero-to-three claim entails. Because an offense add-
ing zero points can on his account satisfy Subparagraph B or
C, it can help prevent a defendant from gaining safety-valve
relief. But that result ill comports with the Guidelines.
There are, after all, reasons why the Guidelines decline to
assign points to certain offenses. The specifcs vary, but
each embodies a judgment that some types of prior convic-
tions should not have the usual weight in determining a cur-
Page
6
Proof Pending Publication
The dissent tries to save Pulsifer's effort by offering an account of the
Guidelines' mechanics different from that given in the Guidelines them-
selves. According to the dissent, the Guidelines “set forth a two-step
process” in which a judge frst “assigns points to the defendant's prior
offenses” under § 4A1.1 and only then “computes the defendant's criminal
history” score under § 4A1.2. Post, at 175. So, the dissent claims, a court
may frst count two or three points for an old conviction (under § 4A1.1)
and then exclude those points from the computation of a history score
(under § 4A1.2). See post, at 175–176. But in fact there are no “two
steps” under the Guidelines. As even the dissent concedes in one self-
contradictory moment, see post, at 176, there is only a single calculation,
with § 4A1.2 providing the “[d]efnitions and [i]nstructions” for § 4A1.1's
“add[ing]” and “total[ing].” (Given that relationship, the commentary ex-
plains, the two provisions “must be read together.” USSG ch. 4, pt. A,
intro.) And among § 4A1.2's “[i]nstructions” is that old convictions simply
“not [be] counted”—rather than, as the dissent would have it, that they
be frst counted and then uncounted. In other words, as § 4A1.2's com-
mentary states, an old conviction should “receive[ ] no criminal history
points” in the § 4A1.1 calculation. USSG § 4A1.2 comment., n. 3. So
again: Neither Pulsifer nor the dissent can transform an old conviction
into a two- or three-point offense.
146 PULSIFER v. UNITED STATES
Opinion of the Court
rent sentence. Maybe the prior conviction is not as reliable
as most. Or maybe it is not so good a measure of the de-
fendant's future dangerousness. Whatever the precise ex-
planation, the Guidelines give zero points to an offense in
order to ensure that it not increase a later punishment. Ex-
cept that under Pulsifer's view it could do just that: Offenses
that the Guidelines deem irrelevant to future sentencing
might end up triggering a mandatory minimum. And like-
wise, Pulsifer's view conficts with a discrete feature of Para-
graph (f)(1). Recall that under that paragraph, an offense
earning one point cannot affect eligibility for relief, either
alone or in combination with any other offense—presumably
because a one-point offense is just too minor. See
§ 3553(f)(1); supra, at 129–130. Yet Pulsifer's theory would
allow an offense adding zero points to contribute to a fnding
that relief is barred. That claim is, again, too out-of-sync
with the statutory framework to offer an escape from his “3
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+ 2 = 5” superfuity problem.
And beyond that problem lies a second, this one relating
to the way Paragraph (f)(1) precludes safety-valve relief for
defendants with serious criminal histories. The paragraph
operates as a gatekeeper: It helps get some defendants into,
and keeps other defendants out of, a world free of mandatory
minimums. And the criteria for selection, evident on the
paragraph's face, relate to just how bad a defendant's crimi-
nal record is. Pulsifer himself recognizes that fact: In de-
scribing Paragraph (f)(1), he notes that “subparagraph (A)
targets recidivism”; that “subparagraph (B) targets serious
offenses” leading to lengthy prison terms; and that “subpara-
graph (C) targets violent offenses” even though resulting in
lesser sentences. Brief for Pulsifer 25; see id., at 44 (noting
that each subparagraph addresses a “type[ ] of behavior sug-
gestive of future dangerousness”). The paragraph thus
focuses on the kinds of past criminal behavior that under
the Guidelines trigger enhanced penalties. Over and over,
the Guidelines presume that defendants with worse crimi-
Cite as: 601 U. S. 124 (2024) 147
Opinion of the Court
nal records—exhibiting recidivism, lengthy sentences, and
violence—are “deserving of greater punishment.” USSG
ch. 4, pt. A, intro. comment.; see § 4A1.1; USSG ch. 5, pt. A.
Paragraph (f)(1), in line with its repeated invocation of the
Guidelines, expresses the same understanding. Put simply,
the paragraph sorts defendants for relief (or not) based on
the seriousness of their criminal history.
Under the Government's reading, Paragraph (f)(1) per-
forms that function without a hitch. When the defendant
has committed multiple non-minor offenses, he cannot get
relief (Subparagraph A). And so too when he has com-
mitted even a single offense punished with a lengthy prison
sentence (Subparagraph B) or involving violence (Subpara-
graph C). Only a defendant with none of those markers—a
defendant who can check off every one of the three “does not
have” requirements—is eligible for relief. So the paragraph
unerringly separates more serious prior offenders from less
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serious ones, allowing only the latter through the gate.
That does not happen under Pulsifer's construction. To
the contrary, his reading would allow relief to defendants
with more serious records while barring relief to defendants
with less serious ones. Or said otherwise, the sorting ac-
complished by Pulsifer's reading does not match what Para-
graph (f)(1) and the Guidelines call for. Consider two hypo-
thetical defendants. One has fve criminal-history points
from a prior three-point offense and a prior two-point violent
offense. The other has 15 criminal-history points from fve
prior three-point offenses, every last one of a violent nature,
but . . . has no two-point violent offense. (All his crimes
were too serious to wind up in the two-point category.)
Which of the two defendants is the more serious prior of-
fender? The latter of course: His record exhibits greater
recidivism, lengthier sentences, and more violence. But
under Pulsifer's view of Paragraph (f)(1), which of the two
defendants is excluded from relief? The former alone. For
want of a two-point offense, the latter remains eligible to
148 PULSIFER v. UNITED STATES
Opinion of the Court
avoid a mandatory minimum. The paragraph thus fails to
divide, at the gate for safety-valve relief, more from less seri-
ous prior offenders.7
And contrary to Pulsifer's view, that problem cannot be
solved by resort to a sentencing judge's discretion. Notably,
Pulsifer does not argue that there is any rhyme or reason
to making our serial three-point violent offender eligible for
safety-valve relief. He says only that Congress “had no rea-
son to be concerned” about that outcome because it knew
“that a sentencing court would still have discretion to impose
a proportionate sentence.” Brief for Pulsifer 25; see id., at
45; see also post, at 182–183 (Gorsuch, J., dissenting) (simi-
larly relying on judges' ability, even without mandatory min-
imums, to impose lengthy sentences). But that “trust in
discretion” claim cannot here work. If Congress thought it
could always rely on sentencing discretion, it would not have
created a criminal-history requirement in the frst instance.
That requirement, by its terms, confnes such discretion.
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More specifcally, it allows discretion to operate only when a
defendant's record does not reach a certain level of serious-
ness. On the Government's reading, the paragraph well
performs that gatekeeping function, separating more serious
from less serious criminal histories. On Pulsifer's reading,
the paragraph does not: As just shown, it allows and denies
7
The dissent labors unsuccessfully to fnd an explanation for this state
of affairs. Here is what it comes up with: Sometimes Congress opts for
“standardized formulas” or bright-line tests even though their “over- and
under-inclusi[on]” will produce statutory “anomalies.” Post, at 181 (citing
Ransom v. FIA Card Services, N. A., 562 U. S. 61, 78 (2011)); see post, at
182–183. That is true enough, but has no application here. Pulsifer's
view of the statute is no more “standardized” than the Government's—
and so no more predictable or administrable. The dissent thus remains
without a plausible, or even cogent, explanation for the failure of its inter-
pretation (and its interpretation alone) to perform the statute's gatekeep-
ing role—in Pulsifer's own words, to separate defendants whose criminal
history is more “suggestive of future dangerousness” from defendants
whose criminal history is less so. Brief for Pulsifer 44.
Cite as: 601 U. S. 124 (2024) 149
Opinion of the Court
relief in ways that do not correspond to the gravity of what
a defendant has previously done. The need for a judge to
correct those results—which Pulsifer admits—shows that his
reading is wrong. Once again, his construction of Para-
graph (f)(1)—however grammatical—makes a hash of the
scheme Congress devised.
B
Pulsifer tries to tell a competing story (which the dissent
mostly adopts, see post, at 162–163, 171–173). Even suppos-
ing the grammar of Paragraph (f)(1) is a wash, Pulsifer con-
tends that statutory context supports his view of what that
provision means by “and.” His argument invokes the “pre-
sumption of consistent usage and the meaningful-variation
canon.” Brief for Pulsifer 22. Those are the terms often
given to a generally useful—but still “defeasible”—interpre-
tive principle: In a given statute, the same term usually has
the same meaning and different terms usually have different
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meanings. A. Scalia & B. Garner, Reading Law 170–171
(2012). The principle is mostly applied to terms with some
heft and distinctiveness, whose use drafters are likely to keep
track of and standardize. See, e. g., IBP, Inc. v. Alvarez, 546
U. S. 21, 33–34 (2005) (construing the term “principal activity”
in the same way when used in neighboring provisions); Wis-
consin Central Ltd. v. United States, 585 U. S. 274, 279 (2018)
(holding that “money remuneration” must mean something
different from “all remuneration” when used in “companion”
statutes (emphasis deleted)). Pulsifer breaks new ground in
applying the principle to words as ubiquitous and (as shown
above) sometimes context-dependent as “and” and “or.” See
supra, at 132–148 and this page. He argues, more specifcally,
that another “and” plus an “or” in Section 3553(f) show that
the “and” in Paragraph (f)(1) must be read his way. But
even accepting that a court can sometimes demand harmoni-
zation of “and”s and “or”s, Pulsifer's argument fails.
Take the other “and” frst. As noted earlier, the criminal-
history requirement is only one of fve conditions for safety-
150 PULSIFER v. UNITED STATES
Opinion of the Court
valve relief set out in Section 3553(f). See supra, at 128–
129. Those conditions appear in a list—Paragraphs (f)(1)
through (f)(5)—with an “and” linking them, just as an “and”
links Paragraph (f)(1)'s three subparagraphs. A look at the
appendix may be helpful here. See infra, at 153. The styl-
ized version of the list in Section 3553(f) (with content re-
moved) goes as follows: The safety valve operates “if the
court fnds” 1, 2, 3, 4, “and” 5.
The problem for Pulsifer is that the meaning of the “and”
in Section 3553(f) does not advance his reading of Paragraph
(f)(1). Everyone, including Pulsifer, agrees that the “and”
in Section 3553(f) connects fve requirements for safety-valve
relief, all of which a defendant must meet. In Pulsifer's
view, the Government has to read Paragraph (f)(1)'s “and”
differently to make each one of its subparagraphs disqualify-
ing. See Brief for Pulsifer 21; Reply Brief 14–15. But that
is just wrong. The “and” in Section 3553(f) works identi-
cally to the “and” in the Government's reading of Paragraph
Page Proof Pending Publication
(f)(1). Section 3553(f)'s “and” creates an eligibility checklist.
A defendant fulflls that provision's requirements if the court
fnds 1, fnds 2, fnds 3, fnds 4, and (fnally) fnds 5. So the
“and” joins fve individually necessary conditions for relief.
Likewise, the “and” in the Government's construction of
Paragraph (f)(1) creates an eligibility checklist. A defend-
ant satisfes that paragraph's requirements if he does not
have A, does not have B, and (fnally) does not have C. So
again, the “and” joins several individually necessary condi-
tions for safety-valve relief. Everything is consistent, in
meaning and operation alike. It is actually Pulsifer who in-
troduces dissonance into the provision. As to the larger list,
he acknowledges that a defendant cannot get relief without
checking off 1, 2, 3, 4, and 5 individually. But as to the
smaller list, Pulsifer changes the rule. Now a defendant
need not satisfy A, B, and C individually. Instead, he can
get relief so long as he does not have A, B, and C combined.
In other words, in Pulsifer's world, Section 3553(f) is an eligi-
bility checklist, but Paragraph (f)(1) is not.
Cite as: 601 U. S. 124 (2024) 151
Opinion of the Court
Pulsifer's deployment of another paragraph's “or” fares no
better. Section 3553(f)(4) conditions safety-valve relief on
a fnding that the “defendant was not an organizer, leader,
manager, or supervisor of others in the offense.” See supra,
at 128. Congress thus used an “or” to signify that being
any one of those things is disqualifying. Invoking the
meaningful-variation canon, Pulsifer argues that the differ-
ent term “and” in Paragraph (f)(1) must mean the opposite:
that only the combination of the listed things disqualifes a
defendant. See Brief for Pulsifer 21–22. Recall that we
have already rejected Pulsifer's unadorned view that the
word “or” is needed to convey the Government's reading of
Paragraph (f)(1). See supra, at 137–139. Pulsifer's addi-
tional reference to Paragraph (f)(4)'s “or” does not
strengthen his case. As we have shown throughout this
opinion, conjunctions are versatile words, which can work
differently depending on context. Here is yet another ex-
ample. As another glance at the appendix will confrm, the
Page Proof Pending Publication
relevant clause in Paragraph (f)(4) is markedly different in
length and formatting from the material in Paragraph (f)(1),
naturally leading to different choices respecting the use of
conjunctions. And anyway, Congress drafted the current
versions of the paragraphs at different times—Paragraph
(f)(4) in 1994, Paragraph (f)(1) in 2018. See Violent Crime
Control and Law Enforcement Act of 1994, 108 Stat. 1985;
First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5221. It
would hardly be surprising if 24 years later, Paragraph
(f)(1)'s drafters did not perfectly harmonize their conjunction
usage with a dissimilar-looking nearby paragraph. There
can be few better illustrations of the “defeasib[ility]” of the
meaningful-variation canon. Scalia, Reading Law, at 171.
Finally, Pulsifer and the dissent make a misguided argument
about legislative purpose. As noted earlier, Congress enacted
the revised version of Paragraph (f)(1) as part of the First
Step Act, a signifcant sentencing reform law. See supra, at
128–129. Pulsifer explains that the new provision was
meant “to make safety-valve relief more widely available.”
152 PULSIFER v. UNITED STATES
Opinion of the Court
Brief for Pulsifer 22. And the dissent highlights how many
more defendants would get safety-valve relief under Pulsif-
er's reading than under the Government's. See post, at 160–
161; see also post, at 155–161, 173. We do not doubt the
points. But they do not assist in interpreting the statutory
text before us. Both views of the paragraph—Pulsifer's and
the Government's—signifcantly widen the opportunity for
safety-valve relief; recall that under the prior provision, any-
thing more than a single criminal-history point precluded
deviation from a mandatory minimum. See supra, at 128–
129. And Pulsifer's interpretation is not better just because
it would go further than the Government's. “[N]o law pur-
sues its . . . purpose[s] at all costs.” Luna Perez v. Sturgis
Public Schools, 598 U. S. 142, 150 (2023). So here, Congress
did not eliminate but only curtailed mandatory minimums—
did not extend safety-valve relief to all defendants, but only
to some. And to determine the exact contours of that class,
we can do no better than examine Paragraph (f)(1)'s text in
Page Proof Pending Publication
context. For all the reasons given, that scrutiny reveals
that Pulsifer's view goes too far.
IV
Yet Pulsifer ( joined again by the dissent, see post, at 184–
185) asserts we are not done. At the least, he claims, the
meaning of the criminal-history requirement is uncertain.
And because it is uncertain, he must win. The rule of lenity,
he says, requires courts to read “ambiguous criminal stat-
utes in favor of liberty.” Brief for Pulsifer 47.
The problem is that we do not view Paragraph (f)(1) as
genuinely ambiguous.8 There are, to be sure, two grammat-
ically permissible readings of the statute when viewed in the
abstract. It may be read Pulsifer's way—as stating that a
defendant can get safety-valve relief so long as he does not
8
For that reason, we have no need to address the Government's argu-
ment that the rule of lenity does not apply to Paragraph (f)(1) because it
is not properly considered a “penal law.” Brief for United States 46–47.
Cite as: 601 U. S. 124 (2024) 153
Appendix to opinion of the Court
have the combination (A, B, and C). Or it may be read the
Government's way—as stating that a defendant can get
safety-valve relief only if he does not have A, does not have
B, and does not have C. But the diffculty in choosing be-
tween those two constructions falls away once we consider
the content of Subparagraphs A, B, and C: more than four
criminal-history points (excluding points from a one-point of-
fense), a prior three-point offense, and a prior two-point vio-
lent offense, all as determined under the Sentencing Guide-
lines. Then we discover that Pulsifer's view creates glaring
superfuity, whereas the Government's view does not. And
we discover that only the Government's view renders the
provision capable of sorting more serious from less serious
criminal records, consistent with both the statute's and the
Guidelines' designs. The two possible readings thus reduce
to one—leaving no role for lenity to play.
In sum, Paragraph (f)(1)'s criminal-history requirement
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sets out an eligibility checklist. A defendant is eligible for
safety-valve relief only if he satisfes each of the paragraph's
three conditions. He cannot have more than four criminal-
history points. He cannot have a prior three-point offense.
And he cannot have a prior two-point violent offense. Be-
cause Pulsifer has two prior three-point offenses totaling six
points, he is not eligible. It makes no difference that he
does not also have a prior two-point violent offense. Ac-
cordingly, we affrm the judgment of the Court of Appeals
for the Eighth Circuit.
It is so ordered.
APPENDIX
§ 3553. Imposition of a sentence
. . . . .
(f) Limitation on Applicability of Statutory Mini-
mums in Certain Cases.—Notwithstanding any other pro-
vision 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,
154 PULSIFER v. UNITED STATES
Appendix to opinion of the Court
846), section 1010 or 1013 of the Controlled Substances Im-
port and Export Act (21 U. S. C. 960, 963), or section 70503
or 70506 of title 46, the court shall impose a sentence pursu-
ant to guidelines promulgated by the United States Sentenc-
ing Commission under section 994 of title 28 without regard
to any statutory minimum sentence, if the court fnds at sen-
tencing, after the Government has been afforded the oppor-
tunity 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 sen-
tencing guidelines; and
(C) a prior 2-point violent offense, as determined under
the sentencing guidelines;
(2) the defendant did not use violence or credible threats
Page Proof Pending Publication
of violence or possess a frearm or other dangerous 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 determined under
the sentencing guidelines and was not engaged in a continu-
ing criminal enterprise, as defned in section 408 of the Con-
trolled Substances Act; and
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all in-
formation and evidence the defendant has concerning the of-
fense or offenses that were part of the same course of con-
duct or of a common scheme or plan, but the fact that the
defendant has no relevant or useful other information to pro-
vide or that the Government is already aware of the informa-
tion shall not preclude a determination by the court that the
defendant has complied with this requirement.
Cite as: 601 U. S. 124 (2024) 155
Gorsuch, J., dissenting
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 violent offense.
Justice Gorsuch, with whom Justice Sotomayor and
Justice Jackson join, dissenting.
The First Step Act of 2018 may be “ `the most signifcant
criminal justice reform bill in a generation.' ” Brief for Sen.
Richard J. Durbin et al. as Amici Curiae in Terry v. United
States, O. T. 2020, No. 20–5904, p. 9. Through the 1980s and
1990s, Congress adopted an ever-increasing number of ever-
longer mandatory minimum prison sentences. In part due
to these policies, the federal prison population grew by more
than 100% in less than a decade. In the First Step Act, Con-
gress sought to recalibrate its approach. It did so by prom-
ising more individuals the chance to avoid one-size-fts-all
mandatory minimums and receive instead sentences that ac-
Page Proof Pending Publication
count for their particular circumstances and crimes.
This dispute concerns who is eligible for individualized
sentencing and who remains subject to mandatory minimums
after the First Step Act. Before the Act, a defendant seek-
ing to avoid a mandatory minimum had to satisfy fve strin-
gent statutory tests. After the Act, all those tests remain,
only the frst is now less demanding. As revised, it provides
that a defendant may be eligible for individualized sentenc-
ing if he “does not have” three traits: (A) more than 4 crimi-
nal history points, (B) a 3-point offense, and (C) a 2-point
violent offense. In lower court proceedings, the govern-
ment admitted that this new test is “most natural[ly]” read
to mean what it says: A defendant may be eligible for indi-
vidualized sentencing unless he possesses all three listed
traits—A, B, and C. Brief for United States in No. 19–
50305 (CA9), p. 7 (Government CA9 Brief); id., at 10–11; ac-
cord, Brief for United States in No. 21–1609 (CA8), p. 11
(Government CA8 Brief). Despite its admission, however,
the government urges us to adopt a different construction.
156 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
It asks us to read the First Step Act as promising a defend-
ant a chance at individualized sentencing only when he does
not have any of the three listed traits—A, B, or C.
If this difference seems a small one, it is anything but.
Adopting the government's preferred interpretation guaran-
tees that thousands more people in the federal criminal jus-
tice system will be denied a chance—just a chance—at an
individualized sentence. For them, the First Step Act offers
no hope. Nor, it seems, is there any rule of statutory inter-
pretation the government won't set aside to reach that re-
sult. Ordinary meaning is its frst victim. Contextual
clues follow. Our traditional practice of construing penal
laws strictly falls by the wayside too. Replacing all that are
policy concerns we have no business considering. Respect-
fully, I would not indulge any of these moves.
I
A
Page Proof Pending Publication
In approaching the dispute before us, some background
helps. Before the 1980s, federal judges generally enjoyed
broad discretion at sentencing. Often, they could impose
punishments ranging from probation up to statutorily speci-
fed maximum prison terms. Mistretta v. United States, 488
U. S. 361, 363 (1989). In exercising that discretion, judges
had to “consider every convicted person as an individual” and
pick punishments that “ft the offender and not merely the
crime.” Pepper v. United States, 562 U. S. 476, 487–488
(2011).
Today, many defendants still receive individualized sen-
tences. In the mine run of federal cases, a court will start
with sentencing guidelines the United States Sentencing
Commission has prepared at Congress's direction. The
guidelines help a court identify a range of presumptively rea-
sonable sentences tailored to the defendant and his crime.
See Rita v. United States, 551 U. S. 338, 347 (2007). That
Cite as: 601 U. S. 124 (2024) 157
Gorsuch, J., dissenting
range depends on an “offense level,” a fgure that takes into
account the seriousness of the defendant's crime and his role
in it, as well as the defendant's “criminal history” score, a
tallying that accounts for his past misconduct. United
States Sentencing Commission, Guidelines Manual §§ 1B1.1,
4A1.1–4A1.2, ch. 5, pt. A (Nov. 2023) (USSG); see Rosales-
Mireles v. United States, 585 U. S. 129, 133–134 (2018). The
guidelines, however, are just that. A sentencing judge may
sometimes depart or vary from the guidelines' recommended
range, picking a lower or higher sentence if it best fts the
defendant and broader penological goals Congress has in-
structed courts to consider. See Gall v. United States, 552
U. S. 38, 46, 49–50 (2007); 18 U. S. C. § 3553(a).
In the 1980s and 1990s, Congress pursued a different ap-
proach for certain drug offenses. See Anti-Drug Abuse Act
of 1986, 100 Stat. 3207–2 to 3207–4; Anti-Drug Abuse Act of
1988, 102 Stat. 4370, 4377–4378. It required courts to im-
Page Proof Pending Publication
pose mandatory minimum prison terms based only on the
kind and quantity of the drugs involved in the defendant's
crime. A court “was required to send the offender to
prison” for a set period of years “no matter how minor the
offender's participation in the offense may have been, and
no matter what mitigating circumstances might have been
present.” J. Rakoff, Why the Innocent Plead Guilty and the
Guilty Go Free 13 (2021). Under this regime, for example,
a defendant distributing 5 grams of crack cocaine faced a 5-
year mandatory prison term, and one with 50 grams faced a
10-year term. 100 Stat. 3207–2 to 3207–3. Meanwhile,
a defendant found with powder cocaine confronted those
same prison terms only if he distributed 100 times those
amounts. Ibid.
In short order, the federal prison population exploded. In
1986, federal prisoners numbered 30,104, approximately
37.7% of whom were serving time for drug offenses. Dept.
of Justice, Sourcebook of Criminal Justice Statistics 519 (31st
158 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
ed. 2003). By 1994, the federal prison population reached
almost 74,000, with approximately 61.3% of inmates serving
time for a drug offense. Ibid.
Calls for reform came quickly and grew with time. See,
e. g., U. S. Sentencing Commission, Special Report to the
Congress: Mandatory Minimum Penalties in the Federal
Criminal Justice System iii (1991); id., App. G (collecting
statements from the Judicial Conference and 12 circuits).
Eventually, Congress responded to these calls in various
ways. In one reform, for example, it prospectively reduced
the crack-cocaine disparity from 100:1 to 18:1. See Fair Sen-
tencing Act of 2010, 124 Stat. 2372. In another, it adopted
§ 3553(f), a provision that came to be called the “safety
valve” and that lies at the heart of today's case. See Violent
Crime Control and Law Enforcement Act of 1994, 108 Stat.
1985–1986.
As originally enacted in 1994, the safety valve provided
modest relief. It exempted defendants who could meet fve
Page Proof Pending Publication
statutory criteria from otherwise-applicable mandatory min-
imums, directing instead that they should receive individual-
ized sentences. Ibid. (codifed as amended at 18 U. S. C.
§ 3553(f)). But the frst of the safety valve's fve criteria,
codifed in paragraph (f)(1), was especially demanding. It
precluded relief for any individual with “more than 1 crimi-
nal history point”—meaning that a defendant could fnd him-
self ineligible for individualized sentencing if his background
included even a single 60-day prison term or two prior of-
fenses involving no prison term at all. 108 Stat. 1985; see
§ 3553(f)(1) (1994 ed.); USSG §§ 4A1.1(b)–(c), 4A1.2 (Nov.
1994).
B
In the First Step Act of 2018, Congress adopted an array
of further reforms. Pub. L. 115– 391, 132 Stat. 5194.
Passed with overwhelming majorities in both chambers
of Congress and with presidential support, the Act reduced
the length of some mandatory minimums by 25%. See
§ 401, id., at 5220–5221. It narrowed the circumstances
Cite as: 601 U. S. 124 (2024) 159
Gorsuch, J., dissenting
under which a court could “stack” certain mandatory mini-
mums on top of one another. See § 403(a), id., at 5221–5222;
U. S. Sentencing Commission, The First Step Act of 2018:
One Year of Implementation 5 (2020). And it made Con-
gress's earlier amendment to the crack-cocaine disparity ret-
roactive, allowing individuals sentenced before that amend-
ment's adoption a chance at resentencing. See § 404, 132
Stat. 5222.
The First Step Act also revised the safety valve's frst pro-
vision. Where paragraph (f)(1) once barred a defendant
with even a single criminal history point from receiving an
individualized sentence, Congress now chose a different
course. As amended, the full safety valve today instructs
a court to afford an individualized sentence “if [it] fnds at
sentencing . . . that—”
“(1) the defendant does not have—
“(A) more than 4 criminal history points, excluding
Page Proof Pending Publication
any criminal history points resulting from a 1-point of-
fense, 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;
“(2) the defendant did not use violence or credible
threats of violence or possess a frearm or other danger-
ous 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, man-
ager, or supervisor of others in the offense, as deter-
mined under the sentencing guidelines and was not
engaged in a continuing criminal enterprise, as defned
in . . . 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
160 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
concerning the offense or offenses that were part of the
same . . . common scheme or plan . . . .” 18 U. S. C.
§ 3553(f).
C
The question we face concerns how the amended safety
valve works. Everyone agrees that a defendant must still
clear fve daunting statutory hurdles. But the parties dis-
agree what the frst entails after the First Step Act. Ob-
serving that the word “and” connects each of the subpara-
graphs (f)(1)(A), (B), and (C), Mark Pulsifer argues that the
safety valve's frst provision now operates to render ineligi-
ble one kind of defendant—a defendant who bears all three
enumerated traits, A, B, and C. Because he does not have
all three, Mr. Pulsifer submits, he is eligible for safety-valve
relief as long as he can satisfy the law's four remaining provi-
sions. Meanwhile, on the government's telling, paragraph
(f)(1) renders three kinds of defendants ineligible for relief—
Page Proof Pending Publication
any defendant who has trait A, B, or C. And because
Mr. Pulsifer has at least one of those traits, the rest of the
safety valve is irrelevant; paragraph (f)(1) alone renders him
ineligible for relief.
Disputes about the amended safety valve's operation have
simmered for years in the lower courts and yielded confict-
ing results.1 At least one thing, though, is clear: The dispute
before us matters profoundly. According to a Sentencing
Commission analysis based on 2021 data, about 33% of drug
offenders were eligible for safety-valve relief under the law's
old terms. See 88 Fed. Reg. 7186 (2023). Under Mr. Pulsif-
1
The Fourth, Ninth, and Eleventh Circuits have taken Mr. Pulsifer's
approach. See United States v. Jones, 60 F. 4th 230 (CA4 2023); United
States v. Lopez, 998 F. 3d 431 (CA9 2021); United States v. Garcon, 54 F.
4th 1274 (CA11 2022) (en banc). The Fifth, Sixth, Seventh, and Eighth
Circuits have taken the government's view. See United States v. Palo-
mares, 52 F. 4th 640 (CA5 2022); United States v. Haynes, 55 F. 4th 1075
(CA6 2022); United States v. Pace, 48 F. 4th 741 (CA7 2022); 39 F. 4th 1018
(CA8 2022) (case below).
Cite as: 601 U. S. 124 (2024) 161
Gorsuch, J., dissenting
er's understanding of the First Step Act, about 66% would
become eligible for individualized sentencing. See ibid.
By contrast, under the government's reading of the Act, that
number would shrink to around 44%. See ibid. Our deci-
sion today thus promises to affect the lives and liberty of
thousands of individuals.
II
Unless some feature of the law suggests that one or an-
other of its terms bears a specialized meaning, our duty is to
interpret Congress's work as an ordinary reader would.
See Niz-Chavez v. Garland, 593 U. S. 155, 163 (2021). At
the heart of today's dispute lies no specialized term but per-
haps the most ordinary of words: Everything turns on what
work the word “and” performs in paragraph (f)(1), where a
sentencing court is tasked with determining whether “the
defendant does not have” three traits—A, B, “and” C.
A
Page Proof Pending Publication
In taking up the parties' dispute, start with a few simple
and uncontested observations. First, as the Court agrees,
“and” is “a conjunction—a word whose function is to connect
specifed items.” Ante, at 133; see J. Opdycke, Harper's
English Grammar 200 (rev. ed. 1966).
Second, and more specifcally, “and” is an “additive” con-
junction, one often indicating that the words it connects
should be added together. Id., at 200; The Chicago Manual
of Style § 5.183, p. 191 (15th ed. 2003). As the Court ex-
plains, when “and” performs that role, it means “[t]ogether
with,” “along with,” “in addition to,” or “as well as.” Amer-
ican Heritage Dictionary 66 (5th ed. 2018); see ante, at 133.
Third, in paragraph (f)(1) “and” connects a list in a nega-
tive conditional statement (“if . . . the defendant does not
have”). Negative conditional “if . . . not” statements often
function like the word “unless.” See R. Huddleston & G.
Pullum, The Cambridge Grammar of the English Language
§ 14.3, p. 755 (2002). Consider the mother who tells her
162 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
child, “If you do not have any homework left, you can go play
with your friends.” The child would understand that he
could play with his friends unless he had homework left
to do.
Now apply those observations to paragraph (f)(1). Given
the meaning of “and,” an ordinary reader would naturally
understand that a defendant is eligible for individualized
sentencing if he “does not have” trait A, trait B, together
with trait C. Add to the mix what we know about the inter-
changeability of “if . . . not” and “unless”: A defendant may
receive guidelines sentencing unless he has trait A, trait B,
together with trait C. Put the points together, and the stat-
ute indicates that a court may issue an individualized sen-
tence unless the defendant has all three traits listed in
§ 3553(f)(1), just as Mr. Pulsifer contends.
B
Page
What theProof
language ofPending
paragraph (f)(1)Publication
suggests, surround-
ing context confrms. When Congress uses different terms
in a statute, we normally presume it does so to convey differ-
ent meanings. Southwest Airlines Co. v. Saxon, 596 U. S.
450, 457–458 (2022). We sometimes call this presumption
the “meaningful-variation canon.” Id., at 457. Here, we
see just such a meaningful variation. When Congress
sought a single word to indicate that one trait among many
is suffcient to disqualify an individual from safety-valve re-
lief, it chose an obvious solution: not the conjunctive “and,”
but the disjunctive “or.”
In fact, Congress used “or” this way no fewer than three
times. Paragraph (f)(2) specifes that, for a defendant to be
eligible for individualized sentencing, a court must fnd that
“the defendant did not use violence or credible threats of
violence or possess a frearm or other dangerous weapon (or
induce another participant to do so) in connection with the
offense.” (Emphasis added.) Paragraph (f)(3) premises eli-
gibility on a fnding that a defendant's “offense did not result
Cite as: 601 U. S. 124 (2024) 163
Gorsuch, J., dissenting
in death or serious bodily injury to any person.” (Emphasis
added.) And paragraph (f)(4) provides that eligibility for
relief turns on whether the defendant “was not an organizer,
leader, manager, or supervisor of others in the offense.”
(Emphasis added.)
The fact that Congress repeatedly used “or” when it
wanted relief to turn on a single trait among many suggests
that the “and” in paragraph (f)(1) performs different work.
Even the government once acknowledged as much, conceding
below that the “and” in paragraph (f)(1) is “most natural[ly]”
read as requiring a sentencing court to fnd that a defendant
possesses all three listed traits before holding him ineligible
for relief. Government CA9 Brief 7; id., at 10–11; accord,
e.g., Government CA8 Brief 11. Nor is the government
alone in this unsurprising understanding: A study involving
ordinary Americans found that the largest share of partici-
pants understood a sentence tracking paragraph (f)(1)'s
structure to trigger ineligibility only if all three conditions
Page Proof Pending Publication
are satisfed. See Brief for Thomas R. Lee et al. as Amici
Curiae 15, 18.
III
A
The government disputes none of this evidence about the
law's ordinary meaning. Instead, it begins with a theory.
Maybe, the government says, there is another “permissible”
way to read paragraph (f)(1). Ante, at 133; Brief for United
States 18, 37. Maybe Congress implicitly wanted a reader
to “distribut[e]” the “verb phrase” “does not have” among
each subparagraph. Ante, at 134–136 (internal quotation
marks omitted); Brief for United States 14–18. Maybe,
then, we should effectively read the statute to work this way,
with deleted words stricken and new ones added in bold:
(1) the defendant does not have —
(A) does not have more than 1 criminal history point
...;
164 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
(B) does not have a prior 3-point offense . . . ; and
(C) does not have a prior 2-point violent offense.
Yes, the government's implicit distribution theory requires a
reader to delete words before the em dash. Yes, it requires
a reader to reinsert them in three different places where
they do not appear. But maybe, the government suggests,
Congress implicitly intended for a reader to do all that.
Even though what it wrote is susceptible to a far more natu-
ral construction requiring none of these gymnastics.
That is not how statutory interpretation usually works.
Statutes aren't games or puzzles but “instruments of a prac-
tical nature, founded on the common business of human life,
. . . and ftted for common understandings.” 1 J. Story, Com-
mentaries on the Constitution of the United States § 451,
p. 437 (1833). For that reason, we usually presume that
Congress “employed words in their natural sense, and . . .
intended what [it] said.” Gibbons v. Ogden, 9 Wheat. 1, 188
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(1824). And once we have identifed the most natural sense
of the law's terms, as we have here, our interpretive task is
usually at an end. See, e.g., Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 461–462 (2002).
The government's implicit distribution theory is so far
from the most natural reading of the law that its many and
able lawyers didn't even stumble on it until late in the game.
In litigation below, the government started by arguing pri-
marily that paragraph (f)(1) “must be read in the disjunc-
tive”—a fancy way of saying that “and” means “or.” Gov-
ernment CA8 Brief 4; see United States v. Garcon, 54 F. 4th
1274, 1280 (CA11 2022) (en banc). In early cases, that was
the government's only argument. See, e. g., Sentencing Tr.
in No. 3:19–cr–207 (ED Tenn.), ECF Doc. 176, p. 4 (“I think
the Department of Justice's position as well as our position
here today is . . . that it should be read disjunctively”); see
also Tr. of Oral Arg. 103. Only after a resounding loss on
that argument, see United States v. Lopez, 998 F. 3d 431,
435–443 (CA9 2021), did the government shift to its implicit
Cite as: 601 U. S. 124 (2024) 165
Gorsuch, J., dissenting
distribution theory, stressing that its new offering does not
require courts to “transform” “and” into “or,” see Brief for
United States 42–43.
The government's implicit distribution theory may be a
“convenient litigating position,” Bowen v. Georgetown Univ.
Hospital, 488 U. S. 204, 213 (1988), but it does not come close
to respecting the most natural construction of the law. It
may have the beneft of leaving “and” alone, but it comes at
the cost of rearranging so much else in the statute. One
way or another, the government cannot get where it wishes
to go without tinkering with the law. And to know that
much should be enough to bring this case to a close:
“Crimes are supposed to be defned by the legislature, not
by clever prosecutors riffng on equivocal language.” Dubin
v. United States, 599 U. S. 110, 129–130 (2023) (internal quo-
tation marks and alteration omitted).
B
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How does the government reply? It insists that contex-
tual clues support its implicit distribution theory. These
clues are so compelling, it says, any other construction of the
law isn't “plausible” or “possible.” Ante, at 142, 153; Brief
for United States 18–19. It is a bold claim, not only because
the government overlooks all the evidence of the statute's
meaning outlined above, but also because it overlooks one
piece of contextual evidence after another weighing against
its implicit distribution theory.
Start with this one: The statute before us stands far afeld
from classic cases that invite questions about implied distri-
bution. In everyday speech, the government stresses, a lis-
tener may appreciate the need to “distribut[e]” what this
Court has called “several antecedents” to “several conse-
quents.” Encino Motorcars, LLC v. Navarro, 584 U. S. 79,
87 (2018) (quoting 2A N. Singer & S. Singer, Sutherland Stat-
utes and Statutory Construction § 47:26, p. 448 (rev. 7th ed.
2014) (internal quotation marks omitted)). In its brief be-
166 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
fore us, the government leads with this example of the phe-
nomenon: someone who says, “I sell red, white, and blue
caps.” See Brief for United States 14. That statement, the
government observes, contains an ambiguity. One listener
might think that the seller offers caps bearing all three col-
ors. But another listener might wonder if the seller implic-
itly means to “distribute” different colors to different caps—
so that she really means to say she sells red caps, she sells
blue caps, and she sells white caps. Only context, the
government insists, can resolve the ambiguity and reveal
which understanding best refects the seller's meaning. Id.,
at 16.
If context suggests anything, however, it is that this obser-
vation has little to offer when it comes to the statute before
us. The First Step Act does not contain several “anteced-
ents” (many caps, for example) that might or might not dis-
tribute among several “consequents” (say, colors). Instead,
paragraph (f)(1) speaks of a single person—“the defendant”
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presently before the sentencing court—who must not have
three specifed traits (A, B, and C). And that “singular”
construction “tends to avoid the ambiguity” about distribu-
tion that a “plural” construction can invite. M. Kirk, Legal
Drafting: The Ambiguity of “And” and “Or,” 2 Tex. Tech.
L. Rev. 235, 239–240 (1971); see also Huddleston, Cambridge
Grammar § 1.3.1, at 1280–1281.
Drafting experts illustrate the point with this phrase:
“charitable and educational institutions.” R. Dickerson, The
Fundamentals of Legal Drafting § 6.2, pp. 109–110 (2d ed.
1986); Kirk, 2 Tex. Tech. L. Rev., at 239–241. The phrase
is ambiguous. The multiple “institutions” might distribute
across the multiple listed traits to describe both “charitable
institutions and educational institutions.” Dickerson, Fun-
damentals of Legal Drafting § 6.2, at 110; Kirk, 2 Tex. Tech.
L. Rev., at 240. Or the term “institutions” might not dis-
tribute, so the phrase describes only institutions that are
both charitable and educational. Id., at 240–241. But if
there is just a single “institution,” any ambiguity dissipates:
Cite as: 601 U. S. 124 (2024) 167
Gorsuch, J., dissenting
“A charitable and educational institution” is an institution
with both traits. The same holds true when a saleswoman
offers “the red, white, and blue cap”: In that case, a buyer
knows with certainty that the seller offers one kind of cap
bearing all three colors.
This contextual clue poses the government with a serious
problem. When Congress wrote paragraph (f)(1), it em-
ployed a singular construction that tends to avoid the ambi-
guity about distribution that plural constructions invite.
The statute before us thus bears no resemblance to the gov-
ernment's lead illustration involving multiple caps and colors.
Nor does it bear any resemblance to the government's vari-
ous illustrations from statutory and constitutional law in-
volving multiple “offenses” that fall into multiple classes, see
ante, at 137; Brief for United States 17–18 (discussing 34
U. S. C. § 20101(f)); multiple “Cases” that meet multiple de-
scriptions, see ante, at 134–135; Brief for United States 40
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(quoting Art. III, § 2, cl. 1); or the many kinds of “Commerce”
Congress can regulate, see ante, at 135; Brief for United
States 39–40 (quoting Art. I, § 8, cl. 3).2
Sensing the government's diffculty, the Court struggles
for an example of its own involving a singular person or
thing that does generate an ambiguity about distribution.
Eventually, it lands on Eric Carle's story about a caterpillar
who “ `ate through' ” (among so many other things) “ `one sau-
sage, one cupcake, and one slice of watermelon.' ” Ante, at
134; see also ante, at 135, n. 3. Mission accomplished: One
child might implicitly distribute the phrase “ate through” to
each foodstuff, while another might read the list without im-
plicit distribution to mean the caterpillar ate through a “com-
bination” that includes them all. Ante, at 135.
2
Although at frst blush “Commerce” might appear to be a singular
noun, this term in fact describes “a noncountable abstraction,” Niz-Chavez
v. Garland, 593 U. S. 155, 163 (2021), that this Court has said sweeps in
“every species of commercial intercourse,” Gibbons v. Ogden, 9 Wheat. 1,
193 (1824).
168 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
But what does that prove? “[T]o acknowledge ambiguity
is not to conclude that all interpretations are equally plausi-
ble.” Gwaltney of Smithfeld, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U. S. 49, 57 (1987). And an example
of ambiguity about distribution in a children's book does
nothing to prove that the federal criminal statute before us
is most plausibly read to require implicit distribution. Add
some of paragraph (f)(1)'s salient features into the illustra-
tion and that much becomes clear. As the story goes, the
caterpillar is in the process of becoming a butterfy. So sup-
pose the story said the caterpillar “will remain a caterpillar
if he does not eat (A) one sausage, (B) one cupcake, and (C)
one slice of watermelon.” I suspect most ordinary readers
(and children) would have little trouble concluding that the
sentence means that the caterpillar will remain a caterpillar
unless he eats all three things; one alone will not do.
C
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Here's another problem with the government's theory: If
in some contexts a speaker might intend for a listener to
distribute words implicitly, the context before us counsels
against attributing any such intention to Congress. It does
because a careful look at the safety-valve statute reveals
that, when Congress wanted to distribute a phrase in this
law, it did not leave the matter to implication. It did not
depend on the reader's imagination. Instead, Congress dis-
tributed phrases expressly.
Twice, in fact. In paragraph (f)(4), Congress took the
trouble to distribute expressly the phrase “was not,” permit-
ting relief only if “the defendant was not an organizer,
leader, manager, or supervisor of others . . . and was not
engaged in a continuing criminal enterprise.” (Emphasis
added.) Likewise, in paragraph (f)(1) itself Congress ex-
pressly distributed the phrase “as determined under the sen-
tencing guidelines” three times, in each of subparagraphs
(A), (B), and (C). All the contextual evidence before us thus
Cite as: 601 U. S. 124 (2024) 169
Gorsuch, J., dissenting
suggests that, in a statute carrying grave criminal conse-
quences, Congress was careful with its words and concerned
with clarity. It did not leave ambiguities about distribution
to be resolved by implication. Instead, it resolved them ex-
pressly, even at the cost of repetition.
Once more, the government's examples only serve to illus-
trate its problem. It imagines a speaker who says, “ `I didn't
like his mother and father.' ” Ante, at 136; Brief for United
States 39. The government suggests that a listener would
“probably” understand the sentence as implicitly distributing
the phrase “I didn't like his,” so that it really means, “I didn't
like his mother and I didn't like his father.” Ante, at 136
(emphasis added); Brief for United States 39. But as the
hedge (“probably”) indicates, an ambiguity lurks here. The
sentence could also be understood without any distribution
to convey the idea that “I didn't like his mother and father”
as a couple, even if I liked each individually well enough.
See Huddleston, Cambridge Grammar § 2.2.2, at 1298–1299.3
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Only context, the government concedes, can clarify which
meaning is more apt. See ante, at 141; Brief for United
States 16. Yet somehow, the government neglects that
same message when it comes to the statute before us—where
context reveals that Congress did not leave questions of dis-
tribution to implication but resolved them expressly.
D
Context exposes yet another faw in the government's im-
plicit distribution theory. If, as the government imagines,
3
Same goes for the government's example “I'm not free on Saturday
and Sunday.” Ante, at 136; Brief for United States 39. In some contexts,
the sentence might be understood to distribute the phrase “I'm not free
on” and mean “I'm not free on Saturday and I'm not free on Sunday.” In
others (suppose you were asked for help with a 2-day home renovation
project), it might mean “I'm not free on Saturday and Sunday” as a combi-
nation, even if I am free one day or the other. See Huddleston, Cam-
bridge Grammar § 2.2.2, at 1298–1299.
170 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
Congress was determined to fnd an “effcient” way to dis-
qualify a defendant bearing any one of the three traits listed
in paragraph (f)(1), ante, at 134, 139; see Brief for United
States 18, it had an obvious solution before it: the word “or.”
As we have seen, Congress employed exactly that approach
three times in the safety valve: Paragraphs (f)(2), (f)(3), and
(f)(4) all premise disqualifcation for relief on the presence of
one trait or another. See Part II–B, supra. In this way,
too, context confrms that, when Congress wanted to make
one trait among many disqualifying, it proceeded expressly
(and often effciently)—but never by implication.
After disregarding others, the government at least ac-
knowledges this particular complication for its theory. It
responds this way: Even substituting “or” for “and,” it
says, would not “delive[r] us from interpretive controversy.”
Ante, at 138; Brief for United States 26. It would not be-
cause replacing “and” with “or” in paragraph (f)(1) still
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would not answer the question whether a single trait alone
is enough to render a defendant ineligible for relief. Ante,
at 138; Brief for United States 26. As evidence of the malle-
ability of the word “or” in some contexts, the Court cooks
up various illustrations involving a hypothetical chef. Ante,
at 138, n. 5.
It is a remarkable response. At argument, the govern-
ment acknowledged that “or” “might have been a clearer
way to express” that a single trait is disqualifying in para-
graph (f)(1). Tr. of Oral Arg. 98. Below, the government
initially pushed for treating “and” as meaning “or” precisely
because it knew that doing so would mean that a defendant
is ineligible for relief if he has even one of its listed traits.
See id., at 101; Government CA9 Brief 11–13; Government
CA8 Brief 7–8. And everyone, the Court included, concedes
that Congress's use of the word “or” in paragraph (f)(4)
means that a defendant meeting any one of several criteria
is disqualifed from relief. Ante, at 151. Simply put, “we
wouldn't be sitting here if Congress had used the word `or' ”
Cite as: 601 U. S. 124 (2024) 171
Gorsuch, J., dissenting
in paragraph (f)(1). Tr. of Oral Arg. 97. Whatever ambigu-
ity “or” might carry in other contexts, it carries none in
§ 3553(f). Throughout the safety valve, Congress used it to
indicate that a single trait among many is disqualifying.4
Finding the government on its back foot, the Court again
comes to its defense, this time by trying to change the rules
of play. Perhaps, the Court speculates, Congress's choice of
“and” rather than “or” in paragraph (f)(1) was the product
of careless drafting. See ante, at 137–138. Perhaps, too,
those two conjunctions are “versatile” words not entitled to
the respect we usually pay Congress's variations in usage—
a respect, the Court suggests, that is due only “to terms with
some heft and distinctiveness, whose use drafters are likely
to keep track of and standardize.” Ante, at 149, 151.
Consider how far we have now retreated. Lower courts re-
jected the government's and-means-or argument. In re-
sponse, the government introduced its implicit distribution
theory. Before us, the government stresses that its new the-
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ory does not depend on “transform[ing]” “and” into “or.”
Brief for United States 42; see also id., at 15, 25. At frst, the
Court seems to proceed on the same premise. See ante, at
133–134. But now it reverses course. Resuscitating an argu-
4
Alternatively, the government suggests, Congress might have used
“and” in paragraph (f)(1) rather than “or” as it did in paragraphs (f)(2)–
(4) because of something to do with the length or format of these provi-
sions. To that end, the government invites us to compare paragraphs
(f)(1) and (f)(4). Tr. of Oral Arg. 64; see also ante, at 151. But, as it
turns out, those paragraphs are almost the same length: 49 words and 40
words, respectively. See §§ 3553(f)(1), (4). Nor can much be made of the
formatting. The main difference is paragraph (f)(1)'s use of an em dash
to set off the listed traits. But even the government has declined to make
much of the em dash, and for good reason. It simply “mark[s] an interrup-
tion in the structure of a sentence,” substituting here for a colon. B.
Garner, Modern English Usage 750 (4th ed. 2016). No party before us
suggests that this em dash is so versatile that it can transform an interrup-
tion into an implied distribution. See Brief for United States 38–39 (con-
ceding that an em dash “is neither necessary nor suffcient for a distribu-
tive interpretation” (emphasis added)).
172 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
ment the government itself has abandoned, the Court con-
tends not just that the terms “and” and “or” are interchange-
able, but that we need not even rely on our usual rules of
interpretation when faced with them.
This argument was a loser below and it should be here.
When Congress employs “differing language in . . . two sub-
sections,” we start from a presumption that it meant to con-
vey a difference in meaning, not a presumption that it made
“a simple mistake in draftsmanship.” Russello v. United
States, 464 U. S. 16, 23 (1983). Never, to my knowledge, has
this Court suggested that we may turn our back on this ap-
proach when conjunctions or other putatively “indistinctive”
words are in play. Nor have we deployed that approach for
“hefty” words alone—as if we were picking paper towels in-
stead of interpreting statutes. To the contrary, our cases
begin (and often end) with the presumption that Congress is
careful in all its word choices and afford variations between
terms like “and” and “or” the same respect due others. See,
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e.g., United States v. Palomar-Santiago, 593 U. S. 321, 326
(2021) (reversing the lower court for failing to give effect to
a statute's use of “the conjunctive `and' ”); Encino Motor-
cars, 584 U. S., at 87 (resting a reading of the relevant statute
on “the ordinary, disjunctive meaning of `or' ”); Loughrin v.
United States, 573 U. S. 351, 357 (2014) (rejecting an argu-
ment that would “disregard what `or' customarily means”);
Reiter v. Sonotone Corp., 442 U. S. 330, 338–339 (1979) (simi-
lar); Rumsfeld v. Padilla, 542 U. S. 426, 434 (2004) (giving
weight to the federal habeas statute's “consistent use of the
defnite article”).5
Nor could the premise latent in the Court's argument be
further from the truth. The difference between words like
“and” and “or” often cannot be easily dismissed as meaning-
5
Even the cases the Court cites, see ante, at 149, describe the presump-
tion of meaningful variation without the qualifcation it now imagines.
See IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005); Wisconsin Central Ltd.
v. United States, 585 U. S. 274, 279 (2018).
Cite as: 601 U. S. 124 (2024) 173
Gorsuch, J., dissenting
less when it comes to settling legal rights. Just imagine if
the Sixth Amendment gave the accused a “right to a speedy
or public trial.” Rather than getting a both timely and
transparent trial, a defendant would be forced to choose
which feature he prefers. Because the difference between
“and” and “or” so regularly proves dispositive of important
legal rights, drafting manuals for legal text from contracts
to congressional legislation warn about the need to deploy
the terms with care. See, e.g., Senate Offce of the Legisla-
tive Counsel, Legislative Drafting Manual 64–65 (1997); K.
Adams, A Manual of Style for Contract Drafting §§ 11.9–
11.11, p. 211 (3d ed. 2013). And here, of course, the differ-
ence between “and” and “or” affects the lives of thousands,
see supra, at 160–161—a fact so inconvenient for the Court
that the Court says to ignore it as well, see ante, at 152.6
IV
So far, things look bleak for the government. Mr. Pulsifer
Page Proof
offers a perfectly Pending
natural reading of thePublication
law. In response,
the government offers a theory that it says rises or falls
based on context. See ante, at 140–141; Brief for United
States 11, 16. Yet, as it turns out, not one but three contex-
tual clues array against its theory.
6
The Court offers still one more guess, again premised on careless draft-
ing, about why Congress used “and” rather than “or.” Maybe, the Court
posits, when Congress amended paragraph (f)(1) in 2018 it failed to notice
that it had used “or” when drafting paragraphs (f)(2)–(f)(4) in 1994. Ante,
at 151. Normally, though, we assume “that Congress is aware of existing
law when it passes legislation.” Miles v. Apex Marine Corp., 498 U. S. 19,
32 (1990). And it beggars belief to suppose that Congress didn't bother to
review the rest of the safety valve when it amended one of its provisions—
particularly when it knew that defendants, prosecutors, and judges would
necessarily read all fve safety-valve provisions together as part of a single
“eligibility checklist.” Ante, at 150; cf. Gwaltney of Smithfeld, Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57, and n. 2 (1987) (point-
ing to meaningful variation between the statutory language at issue and
other, later enacted statutory provisions to counter the assertion that the
choice of language was “a `careless accident' ”).
174 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
Unable to muster a convincing response to any of that, the
government pivots. Even if its implicit distribution theory
suffers so many faws, the government urges us to adopt it
anyway because Mr. Pulsifer's reading of the law would in-
troduce a superfuity into the safety-valve statute. It is a
resourceful reply. The government has many. But it, too,
falls fat.
A
Without question, the canon against superfuity can be a
useful tool when seeking the meaning of a statute. It rests
on the same principle as the canon of meaningful variation:
the presumption that Congress is a careful drafter and each
word it chooses “is there for a reason.” Advocate Health
Care Network v. Stapleton, 581 U. S. 468, 477 (2017). But
that fact also makes the government's choice to rest its case
on the superfuity canon a curious one. As we have seen,
the government's implicit distribution theory depends on the
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assumption that Congress was not a careful drafter. It re-
quires us to assume Congress left a distribution implicit in
one section of paragraph (f)(1), even as it made others ex-
press elsewhere in paragraphs (f)(1) and (f)(4). It requires
us to assume Congress meant for “and” in paragraph (f)(1)
to do the same work as “or” in paragraphs (f)(2)–(f)(4).
Sometimes, it seems, we are supposed to assume Con-
gress was sloppy, other times careful. The only common
thread seems to be what benefts the government in the
moment.
Even putting that small irony aside, the government has a
bigger problem: Mr. Pulsifer's reading leaves no provision
in this statute superfuous. As the government sees it, a
defendant who has both the prior 3-point offense required by
subparagraph (B), and the 2-point violent offense required
by subparagraph (C), will necessarily have more than the 4
criminal history points required by subparagraph (A). Be-
cause of this, the government submits, subparagraph (A) has
no work to perform on Mr. Pulsifer's reading: “Remove it
Cite as: 601 U. S. 124 (2024) 175
Gorsuch, J., dissenting
from the statute, and what is left will make the exact same
people eligible (and ineligible) for relief.” Ante, at 142;
Brief for United States 19–20. Only its implicit distribution
theory, the government contends, can cure the problem by
allowing one subparagraph to “disqualif[y] defendants from
relief even when the others would not.” Ante, at 142; Brief
for United States 19–20.
It's a nice argument, but it rests on a faulty premise. As
it happens, a defendant who has a 3-point offense under sub-
paragraph (B) and a 2-point violent offense under subpara-
graph (C) often will not have “more than 4 criminal history
points . . . under the sentencing guidelines” for purposes of
subparagraph (A). And in cases like that, subparagraph (A)
performs vital work under Mr. Pulsifer's reading of the law
by ensuring that the defendant remains eligible for relief.
There is simply no surplus here for the government's implicit
distribution theory to cure.
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To appreciate why this is so, consider the sentencing
guidelines Congress cross-referenced in subparagraphs (A)
through (C). They set forth a two-step process for calculat-
ing a defendant's criminal history. At the frst step, dis-
cussed in § 4A1.1 of the guidelines, a judge assigns points to
the defendant's prior offenses. Usually, the points corre-
spond to the length of the defendant's previous sentences.
So, for example, three points normally attach to an offense
carrying a sentence longer than 13 months, two points to an
offense with a sentence shorter than that but at least 60 days
long, and one point to any other sentence.
At the second step, described in § 4A1.2 of the guidelines,
a judge then computes the defendant's criminal history. But
during this process, a judge doesn't just tote up all the points
assigned to each offense. Under a variety of circumstances,
the guidelines instruct a judge not to count points assigned
to one offense or another. Points associated with hitchhik-
ing, public intoxication, and fsh and game offenses, for exam-
ple, “are never counted.” § 4A1.2(c)(2). Nor are points as-
176 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
sociated with sentences imposed by a court-martial, a foreign
court, or a tribal court. §§ 4A1.2(g)–(i). The guidelines
also instruct judges not to count points associated with of-
fenses of a certain age. So, by way of illustration, if the
defendant fnished his sentence for a 3-point offense more
than 15 years ago, those points are not counted. Like-
wise, if the defendant fnished his sentence for a 2-point of-
fense more than 10 years ago, those points do not count.
§§ 4A1.2(e)(1)–(3). Courts thus perform “a single calcula-
tion” of a defendant's criminal history score. Ante, at 145,
n. 6. But in doing so, they routinely distinguish between
the points an offense carries and a defendant's ultimate,
countable criminal history points.7
Now return to subparagraph (A). It provides that the de-
fendant must not have “more than 4 criminal history points,
excluding any criminal history points resulting from a 1-
point offense, as determined under the sentencing guide-
lines.” § 3553(f)(1)(A) (emphasis added). As the italicized
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language demonstrates, when adopting the First Step Act
Congress fully appreciated the distinction between what
points an offense carries and whether those points contribute
to a defendant's criminal history score. And because of that
very distinction, it is possible for a defendant to have a prior
3-point offense and a prior 2-point violent offense without
7
See, e.g., United States v. Nesby, 2020 WL 4933657, *2 (SD Ill., Aug.
24, 2020) (defendant had “accumulated 34 criminal history points, many of
which were not countable in his criminal history calculation”); Jones v.
United States, 2019 WL 365715, *3 (D NJ, Jan. 30, 2019) (“The Sentencing
Guidelines only permit a maximum of four one-point offenses to count
toward a defendant's criminal history”); United States v. Johnson, 2023
WL 4944732, *1 (WD Pa., Aug. 3, 2023) (same); Dameron v. United States,
2007 WL 893050, *4, n. 1 (ND Ohio, Mar. 21, 2007) (“The criminal convic-
tions above produce a subtotal criminal history score of 10, and it is noted
that 3 of the defendant's 7 points under U.S.S.G. § 4A1.1(c) were not count-
able”); United States v. Dalton, 2010 WL 455239, *3 (D SC, Feb. 2, 2010)
(noting 45 uncountable criminal history points “in addition to the ffteen
countable criminal history points”).
Cite as: 601 U. S. 124 (2024) 177
Gorsuch, J., dissenting
having more than 4 criminal history points. Most obviously,
as Chief Judge Pryor, former Acting Chair of the Sentencing
Commission, has observed, a defendant may have a 3-point
offense and a 2-point violent offense but both offenses are so
old that he scores no criminal history points at all. See
USSG §§ 4A1.2(e)(1)–(3); Garcon, 54 F. 4th, at 1281. As
Judge Wood has noted, there are a variety of other situations
as well in which a defendant will have both a 3-point offense
and a 2-point violent offense but still not have more than
four criminal history points. See United States v. Pace, 48
F. 4th 741, 763–764 (CA7 2022) (dissenting opinion).
To know that is to know no superfuity problem exists—
and thus no need to resort to the government's implicit dis-
tribution theory to solve it. On Mr. Pulsifer's reading of
the law, a court applying subparagraph (A) will consult the
sentencing guidelines' methodology for scoring criminal his-
tory points set forth in § 4A1.2. In doing so, the court may
fnd that, while the defendant has a prior 3-point offense and
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a prior 2-point violent offense for purposes of subparagraphs
(B) and (C), one or another is too old or suffers from some
other faw so that he does not have more than four criminal
history points. In all these cases, subparagraph (A) does
signifcant work by making clear that, despite having a prior
3-point offense and a prior 2-point violent offense, the de-
fendant remains eligible for relief. See Garcon, 54 F. 4th,
at 1281–1282; Pace, 48 F. 4th, at 763 (opinion of Wood, J.).
B
The government does not contest the central observation
that defeats its superfuity argument. It admits that cer-
tain past offenses “ad[d] zero points to [a defendant's]
criminal-history score.” Brief for United States 32, n. 2;
ante, at 143. So what exactly is the problem here?
To complain about a superfuity problem, it turns out the
government must create one. It does so this way. As writ-
ten, subparagraphs (B) and (C) require a sentencing court
178 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
to ask whether the defendant “ha[s]” a “3-point offense, as
determined under the sentencing guidelines,” and “a 2-point
violent offense, as determined under the sentencing guide-
lines.” But, the government suggests, we should read those
provisions differently. We should read them to require a
sentencing court to ask the further question whether the de-
fendant's offenses also score criminal history points. As the
government candidly admits, its superfuity argument de-
pends on reading subparagraphs (B) and (C) as “car[ing] only
about offenses that do score . . . criminal-history points.”
Brief for United States 28–29; ante, at 145–146. Only then
might subparagraph (A) be left without work to perform, for
indeed an offense that scores three criminal history points
under subparagraph (B) and a violent offense that scores two
criminal history points under subparagraph (C) will always
score more than four criminal history points under subpara-
graph (A).
Put plainly, for the government's superfuity argument to
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gain any traction, we must read still more words into the
First Step Act, construing it now this way:
(1) the defendant does not have —
(A) does not have more than 4 criminal history
points, excluding any criminal history points resulting
from a 1-point offense, as determined under the sentenc-
ing guidelines;
(B) does not have a prior 3-point offense that scores
3 criminal history points, as determined under the
sentencing guidelines; and
(C) does not have a prior 2-point violent offense that
scores 2 criminal history points, as determined under
the sentencing guidelines.
It is one more remarkable request. Last I heard, the
canon against assuming Congress has adopted superfuous
words is not a license for judges to create a superfuity by
inserting new words into a law. Let alone do so simply to
Cite as: 601 U. S. 124 (2024) 179
Gorsuch, J., dissenting
help the government make its implicit distribution theory
seem just a little less implausible.
V
At this stage, the government withdraws to its fnal re-
doubt: a policy argument. In the government's view, the
only “function” Congress gave paragraph (f)(1) was the task
of separating “more from less serious prior offenders.”
Ante, at 147–148; Brief for United States 21. Affording the
statute's terms their ordinary meaning, the government
asserts, would not allow the law to perform that “purpose”
adequately. Id., 20. By contrast, its implicit distribution
theory would enable the law to fulfll its intended “role”
“unerringly.” Ante, at 147, 148, n. 7; Brief for United
States 21.
If this policy argument sounds familiar, it is because we
have time and again rejected ones just like it. We do not
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presume that a law performs only one “function” or “role,”
but recognize that almost every piece of legislation seeks to
serve many competing purposes. See Luna Perez v. Sturgis
Public Schools, 598 U. S. 142, 150 (2023); Barnhart, 534 U. S.,
at 461; Chicago v. Environmental Defense Fund, 511 U. S.
328, 339 (1994). We do not suppose that a law pursues any
of those competing purposes to its logical end, acknowledg-
ing instead that almost every law is the product of compro-
mise. Luna Perez, 598 U. S., at 150. And we do not dis-
place ordinary statutory terms with judicial “speculation as
to Congress['s] intent,” Magwood v. Patterson, 561 U. S. 320,
334 (2010), because the American people have consented to
be governed by the written laws their elected representa-
tives adopt, not by the conjecture of others, see United
States v. Bass, 404 U. S. 336, 348 (1971). For all these rea-
sons and more, “it is quite mistaken to assume,” as the gov-
ernment does, “that whatever might appear to further the
statute's primary objective must be the law.” Henson
180 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
v. Santander Consumer USA Inc., 582 U. S. 79, 89 (2017)
(internal quotation marks and alterations omitted).
Perhaps recalling our frequent admonition that policy talk
cannot overcome plain text, the government tries a bit of
rebranding. Although it refers occasionally to the First
Step Act's “purpose,” Brief for United States 20–21, 34,
48, for the most part it frames its argument in terms of
rationality. When we measure the competing interpre-
tations before us against how well they perform the sta-
tute's only job, the government insists, we will fnd that the
law's ordinary meaning invites “arbitrar[y]” results and
“nonsensical” implications. Id., at 22, 34, 36, 48. The Court
buys into this thinly disguised policy appeal, see ante, at
146–148, and n. 7, even as it forcefully (and without a trace
of irony) faults Mr. Pulsifer for appealing to statutory “pur-
pose,” ante, at 151. New framing or old, however, we have
no business entertaining the government's ramshackle
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argument.
If anything, the government's attempt at rebranding only
makes matters worse for it. When a statute produces a
truly irrational result, we have a doctrine to deal with the
dilemma: absurdity. In narrow circumstances, a simple
and “eas[ily]” fxed statutory error that “no reasonable per-
son could intend” may be amenable to judicial correction
under this Court's traditional absurdity doctrine. See A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 234, 237 (2012); Story, Commentaries § 427, at
411. It is a highly demanding doctrine—deliberately so, for
judges have no license to rewrite a law's terms just because
they happen to think different ones more sensible. And,
tellingly, no one thinks this law produces anything like an
absurd result that might call for a judicial remedy. In fact,
the government affrmatively disavows any reliance on ab-
surdity doctrine. See Brief for United States 36. Instead,
it only gestures vaguely in the direction of “nonsensical” re-
sults and asks us to run with the idea. As if we could tinker
Cite as: 601 U. S. 124 (2024) 181
Gorsuch, J., dissenting
with Congress's work on the basis of some newly fashioned
“absurdity-lite” doctrine.
There is a reason why the government does not attempt
an argument actually grounded on absurdity doctrine. Its
core complaint is that the natural reading of the law does
not, with suffcient precision, separate “more from less seri-
ous prior offenders.” Ante, at 148; Brief for United States
21. But, of necessity, Congress often deploys “standardized
formula[s]” or checklists, like the one found in paragraph
(f)(1), that “are by their nature over- and under-inclusive.”
Ransom v. FIA Card Services, N. A., 562 U. S. 61, 78
(2011). And because Congress may rationally prefer these
approaches for various reasons, including their ease of
administration, this Court has long held that we will not
second-guess them merely because they may produce some
“oddit[ies]” or “anomalies.” Ibid.; see Rodriguez v. United
States, 480 U. S. 522, 526 (1987) (per curiam) (“Deciding what
competing values will or will not be sacrifced to the achieve-
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ment of a particular objective is the very essence of legisla-
tive choice”).8
If, as the government supposes, a seemingly anomalous
result alone could unsettle a statute, it would face its own
troubles, too. Under its implicit distribution theory, an indi-
vidual who previously committed a nonviolent offense and
received a sentence longer than 13 months (i. e., a 3-point
offense) is categorically ineligible for relief. Meanwhile, an
individual who committed the same crime but received a sen-
tence equal to or one day less than 13 months (i. e., a 2-point
8
In a footnote, the Court concedes that both sides read paragraph (f)(1)
as announcing a standardized formula or checklist that inevitably produces
some “anomalies.” Ante, at 148, n. 7. Yet the Court proceeds to reject
Mr. Pulsifer's reading. Why? Only because it thinks that interpretation
is just worse at performing the paragraph's “role.” Ibid. Once more,
the Court resorts to policy and purpose to escape its interpretive dilemma.
And once more, it fails to heed its own advice to Mr. Pulsifer that one
“interpretation is not better” than another “just because it would go fur-
ther” in advancing some view about the law's “role.” Ante, at 152.
182 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
offense) thanks to a slightly more lenient sentencing judge
remains eligible for relief. Rather than “unerringly” enable
the safety valve to “separat[e] more serious prior offenders
from less serious ones,” ante, at 147, the government's
approach thus leaves much to happenstance and luck—
an anomalous result indeed.
Return, then, to our actual absurdity doctrine and con-
sider the government's argument in its light. The govern-
ment worries that respecting paragraph (f)(1) as written
would treat “more serious” offenders too leniently. But in
doing so, the government ignores what follows. A defend-
ant who satisfes paragraph (f)(1) must still go on to satisfy
paragraphs (f)(2)–(f)(5). And those provisions collectively
operate to deny relief to virtually anyone whose current of-
fense involves any trace of violence.
Even if a “more serious” offender could somehow thread
his way through all those needles, too, another would await.
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The safety valve instructs a sentencing court to fashion
a sentence “pursuant to [the] guidelines.” § 3553(f). The
guidelines expressly account for a defendant's criminal his-
tory, and few would accuse them of leniency toward those
with a history of serious offenses. In fact, defendants with
signifcant criminal histories often wind up with a recom-
mended guidelines sentence higher than the otherwise-
applicable mandatory minimum. See Brief for National
Association of Federal Defenders as Amicus Curiae 7–8.
Sentencing courts may have the discretion to vary or depart
from the guidelines' recommended ranges. But Congress
could have rationally trusted courts to exercise that discre-
tion with an appreciation for the fact that individuals with
serious criminal histories—such as the government's hypo-
thetical defendant with many prior three-point violent of-
fenses, see ante, at 147–148; Brief for United States 23—
warrant equally serious sentences. So, looking to the law
as a whole (as we must) and appreciating that Congress often
legislates using standardized formulas or checklists that may
Cite as: 601 U. S. 124 (2024) 183
Gorsuch, J., dissenting
be over- and under-inclusive (again, as we must), there is
nothing approaching an absurdity that might license us to
rewrite the First Step Act.9
In a fnal effort to bolster the government's case, the Court
professes an entirely different concern of its own. It claims
to worry that the natural reading of the law would some-
times be too harsh in operation. Holding a defendant ineli-
gible for safety-valve relief based on offenses that score
“zero points,” we are told, would be “out-of-sync” with
the law's purpose. Ante, at 146. But there is nothing ab-
surd here either. Subparagraph (A) provides that defend-
ants are eligible for relief as long as their past convictions
do not yield more than four criminal history points—a calcu-
lation that, as we have seen, does not include points associ-
ated with old crimes and certain other offenses. Subpara-
graphs (B) and (C) provide that other defendants with more
than four criminal history points are eligible for relief too as
long as they don't have anywhere in their past a serious (3-
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point) offense and a weighty (2-point) violent offense—even
if those offenses are (say) too old to contribute to their crimi-
nal history scores. So whatever unfairness the Court may
perceive in one part of the safety valve (here, subparagraphs
(B) and (C)) is diminished when considered in light of another
(here, subparagraph (A)). Some might prefer a different
arrangement, but the one Congress ordained is hardly
absurd.
9
Nor is it clear that a “more serious” offender could even make it past
paragraph (f)(1) to begin with. The government seems to worry that a
3-point violent offense would not count as a 2-point violent offense under
subparagraph (C), thus allowing some violent offenders to satisfy para-
graph (f)(1) under its most natural construction. Ante, at 147–148; Brief
for United States 22–23. But, while Mr. Pulsifer has not pursued the
point in his case and so it is not at issue before us, some lower courts have
held that an ordinary person would read subparagraph (C)'s reference to
a 2-point violent offense to embrace a violent offense carrying at least that
many points. See, e.g., Lopez, 998 F. 3d, at 440–441, n. 10; see also Pace,
48 F. 4th, at 765 (Wood, J., dissenting).
184 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
If any law demonstrates the wisdom of our usual rules
against elevating policy appeals over plain text, it is this one.
Under the ordinary meaning of the statute, it is possible
some “more serious” offenders may make it past paragraph
(f)(1), and perhaps even end up receiving an individualized
sentence under guidelines that hardly exhibit solicitude for
those with “more serious” criminal histories. Under the im-
plicit distribution theory, in contrast, the availability of indi-
vidualized sentencing may depend on the happenstance of
one extra day in prison. In the end, attempting to pick be-
tween these two outcomes proves nothing more than the
futility of the exercise. However artfully the government
frames its dissatisfaction with the text of the statute, we
have neither the institutional competence nor the constitu-
tional mandate “to assess the relative merits of different
approaches” Congress could have taken. Hartford Under-
writers Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1,
13 (2000). Our role is a more modest one: “[W]hen the stat-
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ute's language is plain” and “the disposition required by the
text is not absurd,” “the sole function of the courts . . . is to
enforce it according to its terms.” Id., at 6 (internal quota-
tion marks omitted). Because that is undoubtedly the case
here, we must apply the safety valve as written.
VI
As I see it, the government hasn't come close to supplying
a lawful basis for departing from the law's ordinary meaning.
Suppose, though, at the end of this long march through its
inventive theories you remain unsure. Suppose you are left
with a reasonable doubt about whether Mr. Pulsifer or the
government has the better reading of the law. In circum-
stances like that, another rule of construction supplies an
answer. It is lenity.
The rule of lenity “is perhaps not much less old than con-
struction itself.” United States v. Wiltberger, 5 Wheat. 76,
95 (1820) (Marshall, C. J.); see Wooden v. United States, 595
U. S. 360, 388 (2022) (Gorsuch, J., concurring in judgment)
Cite as: 601 U. S. 124 (2024) 185
Gorsuch, J., dissenting
(citing The Adventure, 1 F. Cas. 202, 204 (No. 93) (CC Va.
1812) (Marshall, C. J.)). It requires courts to interpret am-
biguous “penal laws,” including those concerning sentencing,
in favor of liberty, not punishment. Wiltberger, 5 Wheat.,
at 95; United States v. Batchelder, 442 U. S. 114, 121 (1979);
Bifulco v. United States, 447 U. S. 381, 387 (1980).
This rule enforces weighty constitutional values. Courts
construe ambiguous penal laws with lenity because a free
nation operates against a background presumption of indi-
vidual liberty. See Wooden, 595 U. S., at 391–392 (opinion of
Gorsuch, J.). We resolve doubts about a criminal law's
reach in favor of lenity, too, because in our federal govern-
ment only the people's elected representatives, not their
judges, are vested with the power to “defne a crime, and
ordain its punishment.” Wiltberger, 5 Wheat., at 95; accord,
Crandon v. United States, 494 U. S. 152, 158 (1990); Wooden,
595 U. S., at 391–392 (opinion of Gorsuch, J.).
Lenity protects vital due process interests, as well, by en-
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suring individuals fair notice of the consequences of their
actions. United States v. Lanier, 520 U. S. 259, 266 (1997);
see McBoyle v. United States, 283 U. S. 25, 27 (1931);
Wooden, 595 U. S., at 389–391 (opinion of Gorsuch, J.). And
lenity performs still further work, guarding against the pos-
sibility that judges might condemn unpopular individuals to
punishment on the strength of their own views about com-
mon sense, good public policy, or “no more than a guess as
to what Congress intended.” Ladner v. United States, 358
U. S. 169, 178 (1958).
So suppose you thought a reasonable doubt remained
about how best to construe the First Step Act. In those
circumstances, the answer cannot be to adopt an interpreta-
tion that restricts safety-valve relief to thousands more indi-
viduals. The only permissible answer is one that favors
liberty.
VII
Today, the Court does not hedge its doubts in favor of lib-
erty. Instead, it endorses the government's implicit distri-
186 PULSIFER v. UNITED STATES
Gorsuch, J., dissenting
bution theory and elevates it over the law's ordinary and
most natural meaning.
It is a regrettable choice that requires us to abandon
one principle of statutory interpretation after another.
We must read words into the law; we must delete others.
We must ignore Congress's use of a construction that tends
to avoid, not invite, questions about implicit distribution.
We must dismiss Congress's variations in usage as sloppy
mistakes. Never mind that Congress distributed phrases
expressly when it wanted them to repeat in the safety valve.
Never mind that Congress used “or” when it sought an eff-
cient way to hinge eligibility for relief based on a single char-
acteristic. We must then read even more words yet into the
law to manufacture a superfuity problem that does not exist.
We must elevate unexpressed congressional purposes over
statutory text. Finally, rather than resolve any reasonable
doubt about statutory meaning in favor of the individual, we
must prefer a more punitive theory the government only re-
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cently engineered.
Today, the Court indulges each of these moves. All to
what end? To deny some individuals a chance—just a
chance—at relief from mandatory minimums and a sentence
that fts them and their circumstances. It is a chance Con-
gress promised in the First Step Act, and it is a promise this
Court should have honored. Respectfully, I dissent.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None