Pulsifer v. United States

Pulsifer v. United States: The Supreme Court Ruling That Denied 10,000 Defendants Safety Valve Relief

On March 15, 2024, the Supreme Court issued a ruling that changed federal drug sentencing for thousands of defendants. The case was Pulsifer v. United States, and it answered a question that federal courts had been fighting about for years: Does the safety valve’s criminal history requirement kick you out if you have ANY ONE of the disqualifying factors, or only if you have ALL THREE?

The answer matters enormously. Under one reading, defendants with a single prior 3-point offense but no violent history could still qualify for safety valve relief. Under the other reading, that single 3-point offense disqualifies them completely. The Supreme Court chose the narrower reading. In his dissent, Justice Gorsuch estimated that approximately 10,000 defendants who thought they qualified under the First Step Act’s expanded criteria suddenly didn’t qualify anymore.

This article explains what the Pulsifer case actually decided, why the courts were split before this ruling, what the grammatical battle between the majority and dissent was really about, and most importantly – what options remain for defendants affected by this decision.

Mark Pulsifer’s Case: The Facts That Reached the Supreme Court

OK so lets start with who Mark Pulsifer actualy was and why his case mattered. Pulsifer pled guilty to distributing methamphetamine in federal court. Based on the drug quantity involved, he faced a 15-year mandatory minimum sentence. Fifteen years. Thats the floor – the judge couldnt go below it unless Pulsifer qualified for some form of relief.

Pulsifer had two prior convictions on his record. Each one counted as a 3-point offense under the sentancing guidelines. So his total was 6 criminal history points from those two priors alone. But heres the thing – neither of those priors was violent. He had no 2-point violent offenses on his record at all.

Pulsifer argued he should qualify for safety valve relief. Under 18 USC 3553(f)(1), defendants are disqualified if they have:

• (A) More than 4 criminal history points (excluding 1-point offenses), OR
• (B) A prior 3-point offense, OR
• (C) A prior 2-point violent offense

Pulsifer’s argument was simple: Look at the word “and” between those conditions. Congress wrote that you dont qualify if you have (A) AND (B) AND (C). That means you need ALL THREE disqualifiers to be kicked out. Pulsifer had (A) and (B) – he had more then 4 points and he had 3-point priors – but he didnt have (C) because he had no violent priors. Under his reading, he should qualify.

The government disagreed. They said the conditions are a checklist – having ANY ONE of them disqualifies you. The “and” just connects items on the list, it dosnt mean you need all three.

The Circuit Split: Why Federal Courts Disagreed For Years

Before Pulsifer reached the Supreme Court, federal appeals courts were completly divided on this question. Look, this wasnt some obscure legal debate – it meant defendants in some parts of the country got relief while defendants in other parts didnt, even with identical criminal histories.

Courts that said “and” means “and” (all three required):

• Fourth Circuit
• Ninth Circuit
• Eleventh Circuit

Courts that said “and” means “or” (any one disqualifies):

• Fifth Circuit
• Sixth Circuit
• Seventh Circuit
• Eighth Circuit

Think about what that means. If you were charged with a federal drug offense in Atlanta (Eleventh Circuit) and you had a 3-point prior but no violent history, you could argue for safety valve relief. If you were charged with the exact same offense and exact same criminal history in New Orleans (Fifth Circuit), you were automaticaly disqualified. Same facts, diffrent outcomes, depending on were you were prosecuted.

Thats not how federal law is suposed to work. The government actualy asked the Supreme Court to take the case because the Eleventh Circuit’s en banc decision – a full court ruling adopting Pulsifer’s position – made it impossible for the lower courts to resolve the conflict on there own.

The Grammatical Battle: Why Both Readings Were “Permissible”

OK so heres were things get intresting, and were most articles dont go deep enough. The Supreme Court acknowledged that BOTH grammatical readings of the statute were technicaly permissible. Justice Kagan, writing for the majority, admitted that Pulsifer’s reading wasnt crazy from a pure grammar standpoint.

So why did the majority choose the governments reading? Context.

The majority said you have to look at how the statute works as a whole. The safety valve provision has FIVE criteria. The first one – criminal history – is structured with three sub-conditions (A, B, C). The other four criteria are straightforward requirements. Kagan argued that reading (A), (B), and (C) as a checklist makes the most sense in context – its a list of disqualifying criminal history types.

Justice Gorsuch’s dissent attacked this reasoning head-on. He said Congress knows how to write checklists. When Congress wants to say “or,” it says “or.” When Congress writes “and,” it means “and.” The dissent pointed out that elsewhere in the criminal code, Congress uses “or” when it wants alternatives. If Congress meant these to be alternatives, why didnt it just write “or”?

Guess what? Gorsuch went even further. He accused the majority of elevating “unexpressed congressional purposes” over the actual text Congress wrote. In plain terms: the majority was guessing what Congress meant instead of reading what Congress said.

The Rule of Lenity: Why the Court Refused to Apply It

This is were alot of defendants feel like the system is stacked against them. Theres a principle in criminal law called the “rule of lenity” – when a criminal statute is genuinly ambiguous, courts are suposed to interpret it in the defendants favor. The thinking is that if Congress didnt make the law clear, defendants shouldnt be punished for the confusion.

Pulsifer argued that the statute was ambiguous – after all, the circuit courts were split, which proves reasonable people disagreed about what it meant. So the rule of lenity should apply, and he should get the favorable reading.

The Supreme Court rejected this. Heres why: lenity only applies when theres GENUINE ambiguity – when you truly cant tell what the statute means. The majority said that even though there were two “grammaticaly permissible” readings, in context only one interpretation made sense. Since the majority could figure out what Congress meant, there was no genuine ambiguity, so no lenity.

Gorsuch’s dissent called this out. He argued that the majoritys approach basicly makes lenity impossible to invoke – any time a court can construct a rationalization for the governments reading, it can claim theres no “genuine” ambiguity. The rule becomes meaningless.

If you were counting on the rule of lenity to save your safety valve argument, Pulsifer makes that path much harder.

The 10,000: Who Actually Lost Eligibility

Justice Gorsuch’s dissent estimated that approximately 10,000 defendants were similary situated to Pulsifer – meaning they had criminal histories that would qualify them for safety valve under the “all three” reading but disqualify them under the “any one” reading. Who are these people?

Profile 1: The Repeat Drug Offender Without Violence

This is the most common profile. Someone with prior drug felonies that resulted in sentances of 13+ months (making them 3-point offenses) but no violent criminal history. Under the governments reading – now the law – even one prior 3-point offense disqualifies you completly. Dosnt matter that you have no violent history. Dosnt matter that your total points might be under four if you exclude the 3-point offense. One 3-point prior, your out.

Profile 2: The Points Accumulator

Someone with multiple minor offenses that add up to more then 4 total criminal history points (excluding 1-point offenses), but no 3-point offenses and no violent offenses. Before Pulsifer, some courts said this person might qualify because they dont have condition (B) or (C). After Pulsifer, just having condition (A) – more then 4 points – kicks you out.

Profile 3: The Old Assault Conviction

Someone with a single 2-point violent offense from years ago – maybe an assault conviction that got them 6 months in jail. Even if there total criminal history points are low, even if they have no 3-point priors, that one violent offense disqualifies them under condition (C).

The pattern is the same in all these cases. Before Pulsifer, these defendants could argue (in favorable circuits) that they only had one or two disqualifying factors, not all three. After Pulsifer, one disqualifier is enough. Completly out.

What the Dissent Predicted

Gorsuch’s dissent wasnt just a legal argument – it was basicly a prediction of the human cost. He wrote: “Today’s decision guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence.”

Let that sink in. The safety valve dosnt guarantee a lower sentance. It just gives judges the OPTION to go below the mandatory minimum. Gorsuch was saying that the majoritys ruling denies people even the oportunity to be seen as individuals rather then just numbers on a sentancing chart.

He also pointed out that the First Step Act of 2018 was supposed to be “the most significant criminal justice reform bill in a generation.” Congress specificaly expanded the safety valve criteria to include more defendants. And now, according to Gorsuch, the Court was reading that expansion narrowly and defeating its purpose.

But the dissent dosnt matter for your case. Its the majority ruling thats law.

What This Means For Pending Cases

If you were charged before Pulsifer and your case is still pending, the new rule applies. Supreme Court decisions on statutory interpretation typicaly apply retroactivly to pending cases. So even if you were charged in 2023 hoping to qualify under the “all three” reading, Pulsifer changed that calculation.

Theres one exception: if your case was already final before Pulsifer (meaning you were sentanced and your appeal time ran out), the Pulsifer ruling dosnt automaticaly let the government go back and resentance you to a higher sentence. But if your still in the system – awaiting trial, awaiting sentancing, or on direct appeal – Pulsifer applies.

Get your attorney to recalculate your safety valve eligibility under the current law immediatly.

Options That Remain After Pulsifer

So your criminal history disqualifies you from safety valve under the Pulsifer ruling. What options do you have left?

1. Substantial Assistance (5K1.1)

This is full cooperation with the government – helping them investigate and prosecute other people. Unlike safety valve, substantial assistance requires the government to file a motion. But it can result in sentances significanly below the mandatory minimum, sometimes even below what safety valve would provide. The tradeoff is obvious: you have to become a cooperator.

2. Challenge Your Criminal History Calculation

Sometimes criminal history points are calculated wrong. If one of your prior convictions shouldnt count as a 3-point offense, or if something should decay under the timing rules, that could change your eligibility. Have your attorney review your presentance report carefully.

3. Argue for Variance

Even if you dont qualify for safety valve, your attorney can argue for a variance – asking the judge to sentence below the guidelines range based on the 3553(a) factors. This dosnt get you below the mandatory minimum, but it can help if your guidelines range is above the floor.

4. Negotiate the Charges

Sometimes the best option is negotiating which charges your pleading to. If you can plead to a charge with a lower mandatory minimum, or no mandatory minimum at all, that might be more valuable then trying to qualify for safety valve on a higher charge.

The Practical Reality

Pulsifer changed the landscape for federal drug sentancing, but its not the end of all hope. Heres what you need to understand.

First, alot of defendants still qualify for safety valve even after Pulsifer. If you have minimal criminal history – no 3-point priors, no violent priors, 4 or fewer points excluding 1-point offenses – your still eligible. Pulsifer didnt eliminate the safety valve, it just clarified that you need to clear ALL THREE hurdles, not just avoid having all three problems simultaneously.

Second, the other four criteria still matter. Even if you clear the criminal history requirement, you can be disqualified by using weapons, having a death result from your offense, or being a leader/organizer. And you still have to make the truthful disclosure required by the fifth criterion.

Third, the benefits are still significant for those who qualify. Below-mandatory-minimum sentancing PLUS a 2-level reduction under the sentencing guidelines can mean years off your sentence. If you qualify, pursue it aggressively.

What Happens Next

If your facing federal drug charges and hoping for safety valve relief, the first step is understanding were you stand under current law – meaning the law as it exists AFTER Pulsifer, not the law as some articles from 2019 or 2022 describe it.

Get your criminal history reviewed by someone who understands the federal sentancing guidelines. Not just the total points, but wheather any prior qualifies as a 3-point offense or a 2-point violent offense. Those categorizations matter under Pulsifer.

If you have any single disqualifying factor, you need to know that now so you can pursue other strategies. Dont waste time hoping for safety valve relief that isnt coming.

Federal drug cases move fast. The earlier you understand your eligibility status, the better you can negotiate and plan your defense.

Pulsifer v. United States changed the rules. Make sure your operating under the current ones.