United States of America v. Mark E. Pulsifer

United States Court of Appeals
For the Eighth Circuit
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No. 21-1609
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Mark E. Pulsifer,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Western
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Submitted: January 11, 2022
Filed: July 11, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Mark Pulsifer pleaded guilty to one count of distributing at least fifty grams of
methamphetamine. See 21 U.S.C. § 841. At sentencing, the district court1 denied
Pulsifer’s request to be sentenced according to the sentencing guidelines without
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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regard to the statutory minimum penalty of 21 U.S.C. § 841(b). Pulsifer relied on 18
U.S.C. § 3553(f), which allows a court to sentence offenders who meet certain criteria
below the otherwise applicable statutory minimum term of imprisonment. Pulsifer
disputes the district court’s ruling, but we conclude that he does not qualify for
sentencing under § 3553(f), and therefore affirm the judgment of the district court.
Pulsifer pleaded guilty to distributing fifty grams or more of methamphetamine.
See 21 U.S.C. § 841(a)(1), (b)(1)(A). Because Pulsifer committed the offense after
he had sustained a final conviction for a prior serious drug felony, the statutory
minimum penalty was fifteen years’ imprisonment. Id. § 841(b)(1)(A)(viii). At
sentencing, Pulsifer argued that he was eligible for a guideline sentence without
regard to the statutory minimum based on § 3553(f).
The district court ruled that Pulsifer was ineligible for sentencing under
§ 3553(f) and did not apply the guideline range that would have governed if there
were no statutory minimum. Instead, starting with the fifteen-year minimum, the
court made an unrelated reduction under different authority and sentenced Pulsifer
to 162 months’ imprisonment. Pulsifer appeals, arguing that the district court erred
in concluding that § 3553(f) was inapplicable. We review the district court’s
interpretation of the statute de novo.
To qualify for a sentence under the guidelines without regard to the statutory
minimum, a defendant must satisfy each of the five subsections in § 3553(f). This
appeal concerns only § 3553(f)(1), which requires the court to find 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;
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(B) a prior 3-point offense, as determined under the sentencing
guidelines; and
(C) a prior 2-point violent offense, as determined under the
sentencing guidelines.
18 U.S.C. § 3553(f)(1).
The statute calls for an inquiry into whether a defendant has certain prior
“offenses” under the sentencing guidelines—a “1-point offense,” a “prior 3-point
offense,” and a “prior 2-point violent offense.” The guidelines, however, do not
assign criminal history points based on a prior “offense,” but tally them according to
the length of “each prior sentence of imprisonment.” See USSG § 4A1.1. A “prior
sentence” means any sentence imposed for conduct that is not part of the instant
offense of conviction. Id. § 4A1.2(a).
We have considered whether Congress meant to introduce a new concept of a
“prior offense” that accrues criminal history points, but we think not. The statute
requires an evaluation of whether a defendant has a particular prior offense “as
determined under the sentencing guidelines.” The only relevant determination
available “under the sentencing guidelines” is whether to add a certain number of
criminal history points based on a defendant’s prior sentence. There is no separate
determination under the guidelines that would assign criminal history points to a
defendant’s prior offense. If, for example, a defendant commits a felony offense for
which a two-year sentence was imposed twenty years before the commencement of
the instant offense, the number of criminal history points assigned is zero, because
the sentence is outside the applicable time period. USSG § 4A1.2(e). There is no
separate determination under the guidelines that would assign points to the old felony
“offense.” We therefore understand Congress to have used a form of common-sense
shorthand in § 3553(f)(1) that incorporated the determinations of criminal history
points under USSG § 4A1.1.
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On this understanding, a defendant has a “prior 3-point offense” if the
sentencing court is required to add three points under the guidelines for a prior
sentence of imprisonment exceeding one year and one month. USSG § 4A1.1(a). A
defendant has a “prior 2-point violent offense” if the court is required to add two
points under the guidelines for a prior sentence of imprisonment of at least sixty days
resulting from a conviction for a crime of violence that was not counted in
§ 4A1.1(a). See id. § 4A1.1(b); 18 U.S.C. §§ 16, 3553(g). In determining whether
a defendant has at least four criminal history points, the court must exclude a prior “1-
point offense”—that is, a prior sentence not counted in § 4A1.1(a) or (b). See USSG
§ 4A1.1(c).
The dispute on appeal is whether a defendant is eligible for a sentence below
the statutory minimum if he does not have all three of the elements of criminal history
enumerated in § 3553(f)(1), or whether a finding that the defendant has at least one
of those three elements renders him ineligible. Pulsifer conceded that he had both (a)
more than four criminal history points and (b) a prior three-point offense, as described
in § 3553(f)(1)(A) and (B). But because he did not have a prior two-point violent
offense as described in § 3553(f)(1)(C), Pulsifer maintained that he was eligible for
a guideline sentence without regard to the statutory minimum. This is a new issue
arising from amendments to § 3553(f) in the First Step Act of 2018, Pub. L. No. 115-
391, § 402, 132 Stat. 5194, 5221.
A defendant qualifies under § 3553(f)(1) if he “does not have—” the criminal
history points specified in (A), the prior offense listed in (B), and the prior offense
listed in (C). The parties discuss whether “and” should be read conjunctively or
disjunctively, but we do not believe that is the important question. The most natural
reading of “and” is conjunctive—“along with or together with.” Webster’s Third New
International Dictionary 80 (2002). Although the word is sometimes “ill chosen” and
means “or” when considered in context, see United States v. Fisk, 70 U.S. 445, 447
(1865), we typically would not construe a statute to carry that nonliteral meaning
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unless there were clear indications in the statute that dictate the result. See 1A
Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory
Construction § 21:14 (7th ed. 2021) (“[T]he words are not interchangeable, and their
strict meaning should be followed when their accurate reading does not render the
sense of the statute confusing and there is no clear legislative intent to have the words
not mean what they strictly should.”).
The important question here is in what sense the statute uses the word “and”
in the conjunctive. When used as a conjunctive, the word “and” has “a distributive
(or several) sense as well as a joint sense.” Garner’s Dictionary of Legal Usage 639
(3d ed. 2011). That is, the phrase “A and B” could mean “A and B, jointly or
severally.” Id.; see Scott J. Burnham, The Contract Drafting Guidebook 163 (1992).
As applied to § 3553(f)(1), a “joint” sense of “and” would mean that a defendant is
eligible for relief unless the court finds that he does not jointly have all three elements
listed in (A), (B), and (C). The “distributive” sense of the word would mean that the
requirement that a defendant “does not have” certain elements of criminal history is
distributed across the three subsections, and a defendant is ineligible if he fails any
one of the three conditions.
There is a strong textual basis to prefer a distributive reading of “and” in
§ 3553(f). If “and” is read jointly, then subsection (A) is rendered superfluous. A
defendant who has a prior three-point offense under subsection (B) and a prior two-
point violent offense under subsection (C) would always meet the criterion in
subsection (A), because he would always have more than four criminal history points.
Thus, reading “and” in its joint sense would leave subsection (A) without any
independent operation.
It is “a cardinal principle of statutory construction that we must give effect, if
possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362,
404 (2000) (internal quotation omitted). Only the distributive interpretation avoids
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surplusage. Subsection (A) has an independent operation only if “and” is read
severally: a defendant who has more than four criminal history points, but does not
meet the conditions in subsection (B) or subsection (C), is ineligible for a sentence
below the statutory minimum. The distributive reading therefore gives meaning to
each subsection in § 3553(f)(1), and we conclude that it is the better reading of the
statute.2
Rather than address the presumption against surplusage, Pulsifer contends that
a different canon of interpretation—the presumption of consistent usage—favors
reading “and” in the joint sense. Under that canon, we presume that identical words
used in different parts of the same statute have the same meaning unless the text or
context suggests otherwise. See IPB, Inc. v. Alvarez, 546 U.S. 21, 33-34 (2005).
Pulsifer points out that the “and” connecting the five statutory requirements in
§ 3553(f) means that a defendant must satisfy all five criteria to qualify for the
limitation of statutory minimums. See United States v. Maupin, 3 F.4th 1009, 1016
(8th Cir. 2021). He argues that the consistent-usage canon calls for a presumption
that the “and” connecting the three subsections in § 3553(f)(1) likewise means that
a defendant is ineligible for relief only if he meets each condition in § 3553(f)(1).
Any presumption of consistent usage is overcome in this case by the contextual
differences between the lists in § 3553(f) and § 3553(f)(1). The presumption of
consistent usage “readily yields to context,” Util. Air Regul. Grp. v. EPA, 573 U.S.
2The Ninth Circuit in United States v. Lopez, 998 F.3d 431 (9th Cir. 2021),
petition for reh’g filed, believed that § 3553(f)(1) employs a “conjunctive negative
proof” in which the defendant is ineligible only if he meets all three conditions
“cumulatively.” Id. at 436. As we see it, however, that conclusion mistakenly
assumes that the word “and” is used in a joint sense, and the decision was reached
only after revising the meaning of § 3553(f)(1)(C) to avoid surplusage. See id. at
444-46 (M. Smith, J., concurring in part, dissenting in part, and concurring in the
judgment).
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302, 320 (2014) (internal quotation omitted), and context here indicates that the “and”
in each list serves a different function. The list in § 3553(f) states that the limitation
on statutory minimums applies “if the court finds at sentencing . . . that” the defendant
satisfies subsections (1), (2), (3), (4), and (5). 18 U.S.C. § 3553(f). Section 3553(f)
thus contains a list of affirmative requirements that naturally employs “and” in the
joint sense. The list in § 3553(f)(1) works differently. Section 3553(f)(1) introduces
a negative list in which “and” must be employed in the several or distributive sense
to avoid surplusage.
The practical effect of reading “and” in its distributive sense is that
§ 3553(f)(1) serves as an eligibility checklist for offenders who seek to avail
themselves of the limitation on statutory minimums. The text distributes the
introductory phrase “does not have” across each statutory condition. A court will find
that § 3553(f)(1) is satisfied only when the defendant (A) does not have more than
four criminal history points, (B) does not have a prior three-point offense, and (C)
does not have a prior two-point violent offense. If a defendant does not meet all three
conditions, then the defendant is not eligible to be sentenced under the sentencing
guidelines without regard to the statutory minimum.
Here, it is undisputed that Pulsifer has a criminal history that meets the criteria
in subsections (A) and (B). He has more than four criminal history points and a prior
three-point offense. Those circumstances make him ineligible for sentencing under
§ 3553(f). That Pulsifer does not also have a prior two-point violent offense that
would meet the condition in subsection (C) is immaterial.
Pulsifer also suggests that the rule of lenity counsels in favor of his
interpretation of § 3553(f)(1). That rule applies, however, only when there remains
a “grievous ambiguity or uncertainty in the statute,” Muscarello v. United States, 524
U.S. 125, 139 (1998) (internal quotation omitted), after the court has “seized every
thing from which aid can be derived.” Chapman v. United States, 500 U.S. 453, 463
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(1991) (internal quotation omitted). Here, the traditional tools of interpretation reveal
the meaning of the provision, and there is no grievous ambiguity.
The judgment of the district court is affirmed.
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