‘And’ means ‘and,’ Atlanta federal appeals court rules

Ruling means some offenders can avoid harsh mandatory sentences

Drug offenders with modest criminal records are now eligible to avoid harsh mandatory minimum prison sentences under a ruling issued Tuesday by the federal appeals court in Atlanta.

A majority of the divided 11th U.S. Circuit Court of Appeals said the question at issue was whether the word “and” means “and.” And the court, by a 7-4 vote, found that “and” does mean “and.”

The decision is a victory for Florida defendant Julian Garcon and also sets precedent in the two other states in the 11th Circuit’s jurisdiction: Georgia and Alabama. Garcon was sentenced to three years in prison for cocaine possession, instead of a minimum mandatory five-year term.

“The ruling means that in more cases federal judges may — but are not required to — impose a prison sentence below the mandatory minimum,” said Matt Dodge, a federal public defender in Atlanta. “(It) frees up judges to address a person’s crime and characteristics with an individualized, rather than cookie-cutter, punishment.”

Credit: pro

Credit: pro

The provision at issue is part of the First Step Act, enacted four years ago by Congress and signed into law by then-President Donald Trump. One of its reforms is a so-called “safety valve” that allows judges to depart from mandatory minimum sentences for those who meet certain conditions.

One condition: “The defendant does not have (A) more than four criminal history points ... (B) a prior three-point offense ... and (C) a prior 2-point violent offense.”

At issue was whether the “and” between the second and third conditions meant “and.” If so, a defendant would be eligible for safety valve relief if he or she did not have all three of the criminal history categories. If, instead, “and” meant “or,” it would mean any defendant who had at least one of the conditions would not be eligible for relief.

Chief Judge Bill Pryor, writing for the majority, acknowledged that Congress may not have intended for the words it used to reach the result found by the court. But he cited Webster’s Dictionary, court precedents, the Senate’s legislative drafting manual and “Reading the Law: The Interpretation Of Legal Texts,” written by late Justice Antonin Scalia and lawyer Bryan Garner, in reaching his conclusion.

As an example, Pryor wrote the word “and” remains a conjunctive when a list of requirements follows a negative, such as, “You must not drink and drive.” To comply, “a person may do either activity by itself but may not do both,” he noted.

Pryor was joined by three colleagues appointed by Republican presidents and two appointed by Democrats. Judges Elizabeth Branch and Andrew Brasher wrote separate dissents.

Atlanta attorney Amanda Clark Palmer represents a drug defendant in Atlanta who is now eligible for safety-valve treatment under the 11th Circuit’s decision.

“Today’s ruling is likely to have a huge impact on people who have been convicted of federal drug offenses,” she said. “The 11th Circuit’s ruling honors the intent of the legislation that wanted to expand the number of people who were eligible for relief from the harsh and draconian mandatory minimums that exist in federal drug cases.”

Credit: Elijah Nouvelage

Credit: Elijah Nouvelage

Added federal defender Dodge: “The 11th Circuit has recognized this modest truth: Congress said what it meant and meant what it said.”

The 11th Circuit may not have the final word because a split in the country’s appeals courts means the issue could ultimately be decided by the U.S. Supreme Court. The San Francisco appeals court has issued a decision similar to the 11th Circuit’s, while appeals courts in New Orleans, Chicago and St. Louis have ruled the other way.