The meaning of the word “and” currently confounds our federal courts.  The seventh, eighth, ninth, and eleventh circuits have all issued opinions regarding the meaning of the word “and” in a particular federal statute, 18 U.S.C. section 3553(f)(1); however, the eleventh circuit recently vacated its panel opinion in United States v. Garcon to reconsider, en banc, whether “and” means “or” in the context of section 3553(f)(1).[i]  Meanwhile, the seventh and eighth circuit’s opinions, which adopt a disjunctive definition for “and,” patently disagree with the ninth circuit’s opinion, which adopts a conjunctive definition for “and.”[ii]  A circuit split and an opinion vacated for rehearing en banc have left federal jurists uncertain about the definition of the word “and.” But such confusion is unwarranted and easily remedied by a simple statement of fact: “and” means “and.”[iii]  Instead of floundering amidst a sea of contradictory canons of statutory interpretation, the federal courts should strive to apply the plain meaning of words in federal statutes, even when the plain meaning of those words creates superfluity in a statute.

The confusion in the federal courts stems from an amendment to the so-called “safety valve” provision, which, as amended in 2018, reads as follows:

[T]he court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission . . . without regard to any statutory minimum sentence, if the court finds at sentencing . . . that— (1) the defendant does not have— (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense . . . ; (B) a prior 3-point offense . . . ; and (C) a prior 2-point violent offense . . . .[iv]

In practice, the safety valve provision allows federal district courts to ignore mandatory minimum sentencing requirements for certain criminal defendants.  However, when district courts began implementing the safety valve provisions, they discovered a problem: the safety valve provision was apparently conjunctive, meaning that a criminal defendant would need “(A) more than 4 criminal history points . . . ; (B) a prior 3-point offense . . . ; and (C) a prior 2-point violent offense,” in order for a court to sentence a criminal defendant according to the mandatory minimum sentence instead of under the safety valve provision, which usually carried significantly reduced sentences.[v]  However, with a conjunctive reading of the statute, subsections (B) and (C) together made (A) irrelevant because if a defendant qualified for both (B) and (C), that defendant would have to qualify for (A), making (A) a superfluous provision. And so, the district courts were faced with a problem: (1) do they read the statute as conjunctive, as the statute appears to be on its face and simply accept that the statute has a superfluous provision; or (2) do they read the statute in such a way as to make (A) not superfluous as required by the superfluity canon. Most district courts opted for the former and read the statute using the plain meaning of “and” to create a conjunctive list of criteria.

Once it became clear that district courts were readily reading the safety valve provision conjunctively, thereby allowing far more criminal defendants to evade mandatory minimum sentences than ever before, federal prosecutors began a nationwide push to have the safety valve provisions read disjunctively.  Effectively, federal prosecutors argued that the “and” in the safety valve provision should be read to mean “or.”[vi]  Relying largely on the rules of statutory interpretation requiring that federal courts interpret statutes to give every provision full effect (called “the surplusage canon”), prosecutors stated that under a conjunctive construction of the statute, if both (B) and (C) are met, so is (A) because subsection (B) requires a prior three-point offense, and subsection (C) requires a prior two-point violent offense, while (A) merely requires more than four criminal history points without counting any one-point offenses.[vii]  If a defendant has a prior three-point offense and a prior two-point violent offense, that defendant already has more than four criminal history points.  Therefore, to give effect to the whole statute as the canons of statutory interpretation require, prosecutors have argued—with more than marginal success—for a disjunctive (where “and” would mean “or”) reading of the safety valve provision.[viii]

Specifically, federal prosecutors are arguing that the em-dash present at the start of the list in subsection (1) is a distributive em-dash that carries the preceding “does not have” clause to each of the following criteria in the list.[ix]  Thus, prosecutors argue that the statute is meant to be read with the phrase “does not have” modifying each subsection that follows it.  Were that the case, each subsection would require that the defendant “does not have more than 4 criminal history points, does not have a prior 3-point offense, and does not have a prior 2-point violent offense.”[x]  While this construction makes sense, and has found success in the seventh and eighth circuits, the effect of this construction is to create a disjunctive “and.”  Furthermore, this entire construction rests on the distributive em-dash theory, which falls flat when one considers the legislative drafting manual, which instructs the word “and” to be used when all criteria in a list are required for a specified qualification.[xi]  Had the legislature intended the “does not have” clause to be carried to each of the following criteria, the legislature simply could have written the statute with the “does not have” clause in each subsection. In the alternative, the legislature could have followed their own drafting manual and written “or” if they intended for any of the criteria listed to disqualify the defendant from the safety valve.  The legislature did neither of those things.  The legislature’s failure to write clearly and according to their own rules should not give the courts free reign to pervert the conjunctive meaning of “and” into “or” through a stretched interpretation of the distributive em-dash and a blind adherence to the canon against surplusage.

As it stands now, the seventh and eighth circuits follow the disjunctive approach to the “and” in the safety valve.[xii] Conversely, in the ninth circuit, the court decided in United States v. Lopez that “and” still means “and.”[xiii]  However, here, in the eleventh circuit, jurists wait with bated breath as the entire eleventh circuit ponders whether “and” will mean “and,” or “and” will mean “or.”  Originally, the eleventh circuit, in United States v. Garcon, followed the disjunctive approach.[xiv]

In Garcon, the court stated that the conjunctive meaning of “and” as applied to the safety valve provision “violate[d] a canon of statutory interpretation, the canon against surplusage.”[xv]  The canon against surplusage states that “[i]f a provision is susceptible of (1) a meaning that gives it an effect already achieved by another provision . . . , and (2) another meaning that leaves both provisions with some independent operation, the latter should be preferred.”[xvi]  Applying the canon against surplusage, Judge Branch, writing for the majority, held that the conjunctive reading created surplusage by rendering subsection (A) redundant, requiring an alternative reading.  However, in applying the canon against surplusage, Judge Branch failed to consider that “a court may prefer ordinary meaning to an unusual meaning that will avoid surplusage.  So like all other canons, this one must be applied with judgment and discretion, and with careful regard to context.”[xvii] Therefore, the plain and ordinary meaning of the word “and” should not simply be tossed aside in favor of a disjunctive definition simply because the conjunctive definition creates surplusage.  Thankfully, with a rehearing en banc, the eleventh circuit has a chance to apply the plain meaning of the word “and” to the safety valve provision, the conjunctive meaning.

While it would be nice if legislators wrote perfect statutes, they simply do not.  Similarly, while it would be nice if the canons of statutory interpretation worked perfectly with each other, they simply do not.  It is up to the courts to apply sound judgment when interpreting imperfect statutes.  And while the canon against surplusage provides necessary guidance when interpreting ambiguous statutes, it should not override the ordinary and plain meaning of words in a statute.  Ordinary and plain meaning should always take priority over other canons of statutory interpretation; to reach any other conclusion would be to carve out an even greater schism between English and Legalese.  Therefore, the eleventh circuit, having vacated its prior opinion in Garcon and heard arguments en banc, should hold that “and” means “and.”

[i] See United States v. Garcon, 997 F.3d 1301, 1305–06 (11th Cir. 2021) (rejecting appellee’s argument that “and” is conjunctive in the context of 18 U.S.C. § 3553(f)(1)(A–C)), vacated, reh’g granted, 23 F.4th 1334, 1334 (11th Cir. 2022).  See generally 18 U.S.C. §3553(f)(1) (listing criteria using “and” that disqualifies a criminal defendant from safety valve relief from mandatory minimum sentences).

[ii] Compare United States v. Pace, No. 21-2151, 2022 WL 4115728, at *9–10 (7th Cir. Sept. 9, 2022) (holding that “and” has a disjunctive meaning in § 3553(f)(1)(A–C)), and United States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022) (holding that “and” carries the phrase “does not have” to each of the subsections that follow, giving the “and” a disjunctive effect), with United States v. Lopez, 998 F.3d 431, 437 (9th Cir. 2021) (adopting the conjunctive meaning of “and”).

[iii] See Lopez, 998 F.3d at 433 (“Applying the tools of statutory construction, we hold that § 3553(f)(1)’s ‘and’ is unambiguously conjunctive. Put another way, we hold that ‘and’ means ‘and.’”).

[iv] §3553(f)(1) (emphasis added).

[v] See id. (emphasis added); see also Lopez, 998 F.3d at 433 (holding that §3553(f)(1)’s “and” is conjunctive).

[vi] See, e.g., Brief for the United States in Support of Government Appeal at 13–16, Garcon, 997 F.3d 1301 (No. 19-14650-GG) (arguing for a disjunctive reading of “and” in §3553(f)(1)).

[vii] See Garcon, 997 F.3d at 1305 (“If we read the ‘and’ conjunctively, there would be no need for the requirement in (A) that a defendant must have more than four criminal history points total because, if he had (B)’s required three-point offense and (C)’s required two-point violent offense, he would automatically have more than four criminal history points.”); see also §3553(f)(1).

[viii] See United States v. Pace, No. 21-2151, 2022 WL 4115728, at *9–10 (7th Cir. Sept. 9, 2022) (holding that “and” has a disjunctive meaning in § 3553(f)(1)(A–C)); see also United States v. Pulsifer, 39 F.4th 1018, 1021 (8th Cir. 2022) (holding that “and” carries the phrase “does not have” to each of the subsections that follow, giving the “and” a disjunctive effect).

[ix] See, e.g., En Banc Brief for the United States in Support of Government Appeal at 17–21, United States v. Garcon, 23 F.4th 1334 (11th Cir. 2022) (No. 19-14650-U) (arguing that the proper distributive reading requires the phrase “does not have” to be applied to each of the following clauses in §3553(f)(1)).

[x] Pace, 2022 WL 4115728, at *9.

[xi] See En Banc Brief of the Appellee Julian Garcon at 23–25, Garcon, 23 F.4th 1334 (No. 19-14650-U) (“Section 302 of the [Senate’s Legislative] Drafting Manual (entitled ‘And; Or.’) states that when ‘and’ is used to join a list of criteria, all of the listed things are required.”).

[xii] See Pace, 2022 WL 4115728, at *9–10 (adopting a disjunctive interpretation for “and” in the seventh circuit); accord Pulsifer, 39 F.4th at 1021 (adopting a disjunctive interpretation for “and” in the eighth circuit).

[xiii] See United States v. Lopez, 998 F.3d 431, 437 (9th Cir. 2021) (adopting the conjunctive meaning of “and”).

[xiv] See United States v. Garcon, 997 F.3d 1301, 1305–06 (11th Cir. 2021) (adopting a disjunctive definition for “and” in the eleventh circuit), vacated, reh’g granted, 23 F.4th 1334, 1334 (11th Cir. 2022).

[xv] Id. at 1305.  See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 150–54 (2012) (explaining the Surplusage Canon).

[xvi] Scalia & Garner, supra note XV, at 151.

[xvii] Id. at 151–52.