Supreme Court Clarifies Scope of Drug Offense Sentencing Relief Under the First Step Act

Supreme Court Clarifies Scope of Drug Offense Sentencing Relief Under the First Step Act

Legal Sidebari

Supreme Court Clarifies Scope of Drug
Offense Sentencing Relief Under the First
Step Act
April 4, 2024
In Pulsifer v. United States, the Supreme Court resolved a question that had divided federal courts of
appeals: what is the scope of eligibility for certain federal drug defendants seeking a sentence below a
mandatory minimum under the First Step Act? In Pulsifer, the Court adopted the government’s preferred
reading of the First Step Act, construing the eligibility criteria in a way that limits the universe of federal
defendants who may obtain relief from a mandatory minimum sentence for certain drug offenses.
This Sidebar examines the Pulsifer case and its implications. It offers a general overview of mandatory
minimum sentencing for federal drug crimes; addresses the contents of and justifications for the First Step
Act’s expansion of the “safety valve,” which gives federal judges the discretion to disregard a mandatory
minimum when imposing a sentence for certain drug crimes; discusses the disagreement among the
federal appeals courts as to the eligibility criteria for the safety valve; and examines the Supreme Court’s
ruling in Pulsifer. The Sidebar closes with considerations for Congress.
Mandatory Minimum Sentences for Certain Federal Drug Offenses
Congress enacts federal criminal statutes and can also establish the penalties for violations of these
statutes. Congress may set mandatory minimum and maximum penalties that form the statutory floor and
ceiling, respectively, of permissible federal criminal sentences. Mandatory minimum sentences require
judges to impose a term of imprisonment of at least the length specified in the statute, a requirement
generally triggered by the offense of conviction and/or the defendant’s recidivism.
Mandatory minimums have existed throughout American history, with examples stretching as far back as
at least 1790. In the context of drug offenses, Congress introduced the first federal mandatory minimum
in 1914—a five-year penalty related to the manufacture of opium for purposes of smoking. Congress
subsequently enacted other mandatory minimums for drug offenses, such as a 10-year mandatory
minimum for selling heroin to juveniles enacted in 1956.
In 1970, Congress repealed almost all drug laws, including mandatory minimums for drug crimes. In their
place, Congress enacted the Controlled Substances Act (CSA), a comprehensive regulatory regime for
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drugs and other substances deemed to pose a risk of abuse and dependence. As discussed in more detail in
a separate CRS product, the CSA generally establishes registration and recordkeeping requirements for
authorized activities involving controlled substances and creates criminal offenses and penalties related to
unauthorized activities. As relevant here, the CSA established criminal offenses for unauthorized
possession with intent to distribute a controlled substance (21 U.S.C. § 841), simple possession of a
controlled substance (21 U.S.C. § 844), and attempt or conspiracy to commit a covered controlled
substance offense (21 U.S.C. § 846). A companion law also enacted in 1970, the Controlled Substances
Import and Export Act (CSIEA), set forth additional criminal offenses, including for importing or
exporting controlled substances without authorization (21 U.S.C. § 960) and for attempting or conspiring
to commit a covered offense (21 U.S.C. § 963). The two statutes contained a single mandatory minimum,
for engaging in a continuing criminal drug enterprise.
In the 1980s, Congress enacted mandatory minimums for each of the three primary offenses listed above
(21 U.S.C. § 841; 21 U.S.C. § 844; 21 U.S.C. § 960). The penalties for the attempt and conspiracy
offenses—21 U.S.C. § 846 and 21 U.S.C. § 963—reference the penalties for the underlying offenses, and
thus the mandatory minimums for the three primary offenses also apply to these inchoate offenses.
In 2006, Congress made it a crime to “intentionally or knowingly manufacture or distribute, or possess
with intent to manufacture or distribute, a controlled substance on board” specific vessels (46 U.S.C.
§ 70503). Congress further provided that a defendant who is convicted of this crime faces the mandatory
minimum specified in 21 U.S.C. § 960 (46 U.S.C. § 70506).
In general, whether a defendant is subject to a mandatory minimum for a federal drug offense depends on
the quantity and type of controlled substance involved in the offense. Different types of controlled
substance at issue (e.g., cocaine, fentanyl, marijuana) may have a different threshold quantity to trigger a
mandatory minimum. For example, under 21 U.S.C. § 841, a five-year mandatory minimum applies if a
defendant possesses with intent to distribute 100 grams of heroin or 100 kilograms of marijuana. That is,
compared to heroin, 1,000 times the amount of marijuana would be required to give rise to the same five-
year mandatory minimum.
The “Safety Valve” as Amended by the First Step Act
In the 1990s, Congress became concerned that mandatory minimum sentences were not adequately
distinguishing between defendants of different levels of culpability. That is, Congress recognized that
federal mandatory minimums could result in equally severe penalties for differently situated defendants.
In response, in the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted the first
“safety valve,” authorizing a federal judge to impose a sentence below an otherwise-applicable mandatory
minimum sentence in certain circumstances. Under this statute, a federal judge could impose a sentence
below the CSA drug-related mandatory minimums described above if the federal defendant satisfied five
criteria, including not having “more than one criminal history point, as determined under the Sentencing
Guidelines.” The Guidelines, promulgated by the U.S. Sentencing Commission, are designed to promote
uniformity in federal sentencing by providing federal judges with sentencing ranges generally based on
the offense and the defendant’s criminal history. According to the Sentencing Guidelines, a defendant’s
criminal history is reflected in points, and the computation of these points depends on the nature and
number of prior offenses. The Guidelines generally assign more points to more serious prior offenses.
In 2018, Congress enacted the First Step Act based on findings about the increasing size of the federal
prison population and the economic and social consequences of this growth. Among other things, the First
Step Act expanded eligibility for safety-valve relief to defendants with more significant criminal histories.
Whereas only federal defendants with one or zero criminal history points under the Sentencing Guidelines
could receive relief under the earlier law, the First Step Act made drug offenders with relatively minor
criminal records eligible for the safety-valve provision. As one court framed it, “The low threshold of

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more than one criminal-history point resulted in many drug offenders receiving mandatory minimum
sentences in instances that some in Congress believed were unnecessary and harsh. Congress recognized
the problem and sought to give district courts more flexibility.”
In particular, the First Step Act amended 18 U.S.C. § 3553(f)(1) to permit a federal defendant convicted
of one of the drug offenses described above—under 21 U.S.C. §§ 841, 844, 846, 960, 963; or 46 U.S.C.
§§ 70503, 70506—to receive a sentence below a mandatory minimum as long as, among other things,
(1) the defendant does not have—
(A) more than four criminal history points, excluding any criminal history points
resulting from a one-point offense, as determined under the Sentencing
Guidelines;
(B) a prior three-point offense; and
(C) a prior two-point violent offense.
Circuit Split on the Scope of the Amended Safety Valve
Federal courts of appeals soon became divided on when, under the safety-valve provision as amended by
the First Step Act, a federal defendant’s criminal history disqualified him or her from safety-valve relief.
The disagreement centered on whether defendants with any of the three listed criminal-history conditions
(having more than four criminal history points, a prior three-point offense, or a prior two-point violent
offense) would be deemed ineligible for the safety valve, or whether only defendants having all three
conditions (more than four criminal history points, a prior three-point offense, and a prior two-point
violent offense) would be ineligible. The U.S. Courts of Appeals for the Fourth, Ninth, and Eleventh
Circuits held that only a defendant with all three conditions is ineligible for the safety valve. By contrast,
the Fifth, Sixth, Seventh, and Eighth Circuits held that a defendant with any one of the three conditions is
disqualified from safety-valve relief.
The Sentencing Commission studied the effect of the differing interpretations on the eligibility of federal
defendants for safety-valve relief. Under the approach taken by the Fourth, Ninth, and Eleventh Circuits,
the Commission found that, based on FY2021 data, 320 offenders would be ineligible for the safety valve.
Under the distributive reading adopted by the Fifth, Sixth, Seventh, and Eighth Circuits, the Commission
identified 4,111 offenders who would be ineligible.
The Supreme Court Decision
Background
On February 27, 2023, the Supreme Court granted review of the Eighth Circuit’s decision in United States
v. Pulsifer. The Eighth Circuit case under review arose out of the sentencing of Mark Pulsifer, who had
pled guilty to distributing methamphetamine and had more than four criminal history points and a prior
three-point offense but did not have a prior two-point violent offense. The district court determined that
Pulsifer was ineligible for safety-valve relief because he satisfied at least one of the three criminal history
conditions. The Eighth Circuit affirmed.
Before the Supreme Court, Pulsifer pressed a “conjunctive” interpretation of Section 3553(f)(1). He
argued that based on a plain reading of Section 3553(f)(1), the use of “and” in surrounding statutory
provisions, and congressional intent, the word “and” in Section 3553(f)(1) connects three conditions
framed in the negative and thus disqualifies only a defendant with all three criminal-history conditions
present. By contrast, the federal government made the “distributive” argument that to give meaning to
each condition, avoid surplusage, and avert outcomes Congress could not have intended, the word “and”

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distributes “does not have” to each of the criminal history conditions, meaning that a defendant with any
of the conditions is disqualified from safety-valve relief.
On October 2, 2023, the Court held oral argument in the case and, on March 15, 2024, issued its decision.
Majority Opinion
The Supreme Court affirmed the Eighth Circuit decision, interpreting 18 U.S.C. § 3553(f)(1) in a
distributive manner to disqualify a defendant from the safety valve if they have any one of the three
enumerated conditions. In an opinion authored by Justice Kagan, the Court acknowledged that Pulsifer
and the government presented two “grammatically permissible” ways to read Section 3553(f)(1). The
Court determined that only the government’s construction was “plausible,” however, reasoning that
Pulsifer’s preferred reading would render the first condition superfluous. The Court explained that “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,” meaning that reading
the provision to require all three for ineligibility would render Subparagraph A surplusage. The
government’s interpretation, by contrast, would give effect to each condition, the Court reasoned,
allowing each to do “independent work.” As the majority made clear, “Subparagraph A disqualifies
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.”
The Court next wrote that Section 3553(f)(1) helps ensure that more culpable defendants are not eligible
to be sentenced in “a world free of mandatory minimums” and observed that the government’s
interpretation furthers Section 3553(f)(1)’s gatekeeping function. According to the Court, each condition
blocks different categories of defendants with greater culpability from receiving relief: the first condition
targets recidivists, the second captures defendants who have committed a serious offense, and the third
covers defendants who have committed a violent offense. The Court was therefore persuaded that, under
the government’s reading, Section 3553(f)(1) “unerringly separates more serious prior offenders from less
serious ones, allowing only the latter through the gate.” The Court characterized Section 3553(f)(1) as “an
eligibility checklist” that reserves safety-valve relief only for defendants that satisfy “each of the
paragraph’s three conditions.”
The Court took note of the argument that Congress in the First Step Act generally sought to make safety-
valve relief more “readily available,” but the Court responded that this argument did not override an
analysis of the text of the statute and that the government’s reading still expands access to safety-valve
relief (albeit not to the degree advanced by Pulsifer). In the end, the Court affirmed the Eighth Circuit’s
ruling that Pulsifer was not eligible for safety-valve relief.
Dissenting Opinion
Justice Gorsuch issued a dissenting opinion, which was joined by Justices Sotomayor and Jackson. In the
dissent, Justice Gorsuch argued, among other things, that “an ordinary reader would naturally understand”
that a defendant may receive relief unless they have all three conditions listed in Section 3553(f)(1). If
Congress intended for the three conditions to operate independently, Justice Gorsuch continued, Congress
would have used “or” instead of “and,” as it did in other provisions of the statute. In addition, Justice
Gorsuch suggested that if there were reasonable doubt as to the meaning of Section 3553(f)(1), the rule of
lenity—in which courts interpret ambiguous criminal statutes in favor of the defendant—would favor
Pulsifer’s preferred construction.
Justice Gorsuch further highlighted the practical effect of the Court’s ruling. Reflecting the Commission’s
study, Justice Gorsuch indicated that “the government’s preferred interpretation guarantees that thousands
more people in the federal criminal justice system will be denied a chance . . . at an individualized
sentence.”

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Congressional Considerations
In the First Step Act, Congress sought to expand safety-valve relief under Section 3553(f)(1) in order to
afford such relief to certain drug offenders not disqualified on the basis of their criminal history. If the
Court’s interpretation of Section 3553(f)(1) does not align with congressional intent, Congress remains
free to further amend Section 3553(f)(1). More broadly, Congress may directly amend underlying statutes
establishing mandatory minimum sentences to the extent it seeks to increase, decrease, or eliminate those
minimums (consistent with constitutional limitations). The Court’s interpretation in Pulsifer of the
language in 18 U.S.C. § 3553(f)(1) also sheds light on how the Court may view a similar set of qualifying
or disqualifying conditions in other federal legislation going forward.

Author Information

Dave S. Sidhu

Legislative Attorney

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