Case: 21-40247 Document: 00516531890 Page: 1 Date Filed: 11/02/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 2, 2022 No. 21-40247 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Nonami Palomares, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 20-CR-1355 Before Jolly, Willett, and Oldham, Circuit Judges. E. Grady Jolly, Circuit Judge: The district court sentenced appellant Nonami Palomares to a 120- month “mandatory minimum” sentence for smuggling heroin. She argues the district court erred because 18 U.S.C. § 3553(f ), more commonly referred to as the First Step Act’s “safety valve” provision, exempts drug offenders like Palomares, with sufficiently minor criminal histories from mandatory minimum sentences. The relevant part of the statute states that criminal defendants are eligible for relief only if: Case: 21-40247 Document: 00516531890 Page: 2 Date Filed: 11/02/2022 No. 21-40247 (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 (C) a prior 2-point violent offense, as determined under the sentencing guidelines[.] 18 U.S.C. § 3553(f)(1). Palomares argues that she was eligible for relief because her criminal history only ran afoul of sub-section (B)—she had a prior 3-point offense. Because the statute uses the word “and,” she argues that she would only be ineligible if her criminal history satisfied sub-sections (A), (B), and (C). The Government disagrees, arguing that defendants who run afoul of any one of the three requirements are not entitled to relief. 1 The First Step Act’s structure is perplexing. It opens with a negative prefatory phrase coupled with an em-dash (“does not have—”) followed by a conjunctive list (A, B, and C). But we conclude that the statute’s uncommon structure holds the key to unlocking its meaning. We agree with the Eighth Circuit that Congress’s use of an em-dash following “does not have” is best interpreted to “distribute” that phrase to each following 1 A circuit split has emerged over this issue. Compare United States v. Lopez, 998 F.3d 431, 441 n.11 (9th Cir. 2021) (rejecting the “distributive” reading as “quixotic”), with United States v. Pulsifer, 39 F.4th 1018, 1022 (8th Cir. 2022) (concluding that the introductory phrase “does not have” found in § 3553(f)(1) “distributes” across each statutory condition in § 3553(f)(1)(A)–(C)), and United States v. Pace, 48 F.4th 741, 754 (7th Cir. 2022) (holding that § 3553(f)(1) is to be read disjunctively). See also United States v. Garcon, 23 F.4th 1334 (11th Cir. 2022) (granting rehearing en banc in a case involving the interpretation of 18 U.S.C. § 3553(f)(1)). 2 Case: 21-40247 Document: 00516531890 Page: 3 Date Filed: 11/02/2022 No. 21-40247 subsection. To be eligible for safety valve relief, a defendant must show that she does not have more than 4 criminal history points, does not have a 3-point …
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