Whether the Fifth Circuit erred in its interpretation of 18 U.S.C. § 3553(f)(1)

QUESTION PRESENTED Whether the District Court erred when it (1) felt constrained to impose the mandatory minimum sentence, 120 months of imprisonment; (2) did not apply the “Safety Valve,” 18 U.S.C. § 3553(f); and (3) did not impose a presumptively reasonable sentence within the guideline range of imprisonment calculated by Nolan Washington’s Presentence Investigation Report (“PSR”). The District Court should have read the “and” in the “Safety Valve,” specifically 18 U.S.C. § 3553(f)(1), in the conjunctive and should have calculated Mr. Washington’s guideline range of imprisonment as determined by his PSR, 87-108 months of imprisonment. The United States Fifth Circuit Court of Appeals found “[w]e do not resolve whether Washington properly preserved this issue because he cannot show that the district court erred, plainly or otherwise, by refusing to apply § 3553(f)’s safety-valve provision to depart below the statutory minimum in light of United States v. Palomares, 52 F.4th 640 (5th Cir. 2022), petition for cert. filed (Dec. 21, 2022) (No. 22-6391), which was decided while this appeal was pending. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010). Using a ‘distributive approach’ to interpret § 3553(f)(1), the majority panel concluded that criminal defendants are ‘ineligible for safety valve relief under § 3553(f)(1) if they run afoul of any one of its requirements.’ Palomares, 52 F.4th at 647 (emphasis added). Thus, because Washington ran afoul of § 3553(f)(1)(B)’s requirement that he not have a prior three-point offense under the guidelines—which he does not dispute—he was ineligible for relief under § 3553(f). See id.” United States v. Washington, 2023 U.S. App. LEXIS 4657, at p. 2 (5th Cir. Feb. 23, 2022) (per curiam) (unpublished). Did the Fifth Circuit err when it read the “and” in § 3553(f)(1) in the disjunctive and/or when it concluded that criminal defendants are ‘ineligible for safety valve relief under § 3553(f)(1) if they run afoul of any one of its requirements.’ Palomares, 52 F.4th at 647 (emphasis added). This issue involves, at least, a 4-2 circuit split. See Br. for United States at 7, 10-11, United States v. Pulsifer, 39 F.4th 1018 (8th Cir. 2022), cert. granted, 2023 U.S. LEXIS 980 (Feb. 27, 2023) (No. 22-340). Currently pending before this Court on similar issues interpreting § 3553(f)(1) are Pulsifer and Palomares. This Court appears poised to resolve this issue. -ii