Supreme Court of the United States · Official docket →
Mark E. Pulsifer v. United States
Paid petition · United States Court of Appeals for the Eighth Circuit, No. 21-1609 · judgment July 11, 2022
Before the decision, about 6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and an Eighth Circuit decision below.
Question presented
The "safety valve" provision of the federal sentencing statute requires a district court to ignore any statutory mandatory minimum and instead follow the Sentencing Guidelines if a defendant was convicted of certain nonviolent drug crimes and can meet five sets of criteria. See 18 U.S.C. § 3553(f)(1)-(5). Congress amended the first set of criteria, in§ 3553(f)(1), in the First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221, broad criminal justice and sentencing reform legislation designed to provide a second chance for nonviolent offenders. A defendant satisfies § 3553(f)(1), as amended, if he "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) (emphasis added). The question presented is whether the "and" in 18 U.S.C. § 3553(f)(1) means "and," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2-point offense (as the Ninth Circuit holds), or whether the "and" means "or," so that a defendant satisfies the provision so long as he does not have (A) more than 4 criminal history points, (B) a 3- point offense, or (C) a 2-point violent offense (as the Seventh and Eighth Circuits hold). ORDER OF 10/2/2023: THE MOTION OF PETITIONER FOR LEAVE TO PROCEED FURTHER HEREIN IN FORMA PAUPERIS AND FOR APPOINTMENT OF COUNSEL IS GRANTED. J. ROBERT BLACK, OF OMAHA, NEBRASKA, IS APPOINTED TO SERVE AS COUNSEL FOR THE PETITIONER IN THIS CASE.
Counsel of record
For petitioner
Shay Dvoretzky
Skadden, Arps, Slate, Meagher & Flom LLP
For respondent
Elizabeth B. Prelogar
Solicitor General
Case
Conference history
Distributed for 3 conferences
Amicus briefs
4 merits
(4 supporting pet./neither)
Argument & decision
Argued October 2, 2023 — Shay Dvoretzky · Frederick Liu. Audio and transcript
Decided March 15, 2024. Opinion by Kagan.
Proceedings
- Aug 13 2024Record returned to the United States Court of Appeals for the Eighth Circuit.
- Apr 16 2024Judgment Issued.
- Mar 15 2024Adjudged to be AFFIRMED. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Sotomayor and Jackson, JJ., joined.
- Oct 02 2023Motion of petitioner for leave to proceed further herein in forma pauperis and for appointment of counsel GRANTED. J. Robert Black, of Omaha, Nebraska, is appointed to serve as counsel for the petitioner in this case.
- Oct 02 2023Argued. For petitioner: Shay Dvoretzky, Washington, D. C. For respondent: Frederick Liu, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
- Aug 23 2023Reply of petitioner Mark E. Pulsifer filed. (Distributed)
- Aug 16 2023Motion DISTRIBUTED for Conference of 9/26/2023.
- Jul 27 2023CIRCULATED
- Jul 24 2023Complete record on appeal received from the United States Court of Appeals for the Eighth Circuit (1 envelope). There are sealed documents with this record.
- Jul 24 2023Brief of respondent United States filed.
- Jul 19 2023Motion of petitioner for leave to proceed further herein in forma pauperis and for appointment of counsel filed.
- Jul 17 2023Record requested from the United States Court of Appeals for the Eighth Circuit.
- Jul 14 2023SET FOR ARGUMENT on Monday, October 2, 2023.
- May 26 2023Brief amicus curiae of Americans for Prosperity Foundation filed.
- May 26 2023Brief amici curiae of FAMM, et al. filed.
- May 26 2023Brief amicus curiae of National Association of Federal Defenders filed.
- May 26 2023Brief amici curiae of Professors Thomas R. Lee, et al. in support of neither party filed.
- May 22 2023Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
- May 19 2023Brief of petitioner Mark E. Pulsifer filed.
- May 11 2023Motion to dispense with printing the joint appendix filed by petitioner Mark E. Pulsifer.
- Apr 07 2023Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including May 19, 2023. The time to file respondent's brief on the merits is extended to and including July 24, 2023.
- Mar 21 2023Motion for an extension of time to file the briefs on the merits filed.
- Feb 27 2023Petition GRANTED.
- Feb 22 2023Supplemental brief of petitioner Mark E. Pulsifer filed. (Distributed)
- Feb 21 2023DISTRIBUTED for Conference of 2/24/2023.
- Feb 02 2023Reply of petitioner Mark E. Pulsifer filed. (Distributed)
- Feb 01 2023DISTRIBUTED for Conference of 2/17/2023.
- Jan 13 2023Brief for the United States filed.
- Dec 08 2022Motion to extend the time to file a response is granted and the time is further extended to and including January 13, 2023.
- Dec 07 2022Motion to extend the time to file a response from December 14, 2022 to January 13, 2023, submitted to The Clerk.
- Nov 10 2022Motion to extend the time to file a response is granted and the time is extended to and including December 14, 2022.
- Nov 09 2022Motion to extend the time to file a response from November 14, 2022 to December 14, 2022, submitted to The Clerk.
- Oct 07 2022Petition for a writ of certiorari filed. (Response due November 14, 2022)