USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-12620 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellant, versus HERIBERTO CASTILLO,

Defendant-Appellee.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:22-cr-00190-MSS-SPF-3 ____________________ USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 2 of 4

2 Opinion of the Court 23-12620

Before ROSENBAUM, GRANT, and TJOFLAT, Circuit Judges. PER CURIAM: The government appeals Heriberto Castillo’s 84-month sen- tence for conspiring to distribute and possess with the intent to dis- tribute 5 kilograms or more of cocaine and 40 grams or more of fentanyl, and for possessing with the intent to distribute 5 kilo- grams or more of cocaine. It argues that the District Court erred in sentencing Castillo below the statutory minimum term of ten years’ imprisonment. The government contends that, considering the U.S. Supreme Court’s decision in Pulsifer v. United States, 601 U.S. 124, 144 S. Ct. 718 (2024), Castillo was ineligible for safety- valve relief because he had two prior three-point offenses, for a to- tal of six qualifying criminal-history points. We agree. When reviewing a district court’s safety-valve decision, we review factual determinations for clear error and legal interpreta- tions of the statutes and Sentencing Guidelines de novo. United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). The safety-valve provision in 18 U.S.C. § 3553(f ) provides that, for certain enumerated offenses, including offenses under 21 U.S.C. §§ 841 and 846, The court shall impose a sentence pursuant to [the United States Sentencing Guidelines] . . . without re- gard to any statutory minimum sentence, if the court finds at sentencing . . . , that— USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 3 of 4

23-12620 Opinion of the Court 3

(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)(A)–(C) (emphasis added). In United States v. Garcon, we held that the word “and” in § 3553(f )(1) was conjunctive and that a defendant must have all three enumerated disqualifying criminal-history characteristics— more than four qualifying criminal-history points, a three-point of- fense, and a prior two-point violent offense—before he becomes ineligible for safety-valve relief. 54 F.4th 1274, 1278 (11th Cir. 2022) (en banc), abrogated by Pulsifer, 601 U.S. at 132 & n.1, 144 S. Ct. 725. Garcon, which was decided in December 2022, was controlling law at the time of Castillo’s July 2023 sentencing and the government’s appeal. After we decided Garcon, the U.S. Supreme Court held that § 3553(f )(1) “creates an eligibility checklist” that demands a defend- ant satisfy each condition before he is eligible for safety-valve relief. 601 U.S. at 132, 144 S. Ct. 726. Pulsifer expressly abrogates the rea- soning in Garcon by rejecting a conjunctive reading of the word “and” in § 3553(f )(1) that would “join[] three features of a USCA11 Case: 23-12620 Document: 39-1 Date Filed: 10/02/2024 Page: 4 of 4

4 Opinion of the Court 23-12620

defendant’s criminal history points into a single disqualifying char- acteristic.” Id. at 133, 144 S. Ct. 726. Instead, the Court concludes that the word “and” joins each criminal-history characteristic in § 3553(f )(1) to the introductory phrase “does not have.” See id. at 134–37, 150–53, 144 S. Ct. 726–29, 735–37. In other words, a defend- ant is eligible for safety-valve relief if he does not have more than four criminal-history points, does not have a prior three-point of- fense, and does not have a prior two-point violent offense. Id. at 153, 144 S. Ct. at 737. The presence of any of the three criminal- history characteristics in § 3553(f )(1) disqualifies a defendant from safety-valve relief. Id.; see also United States v. Morley, 99 F.4th 1328, 1343 (11th Cir. 2024) (noting Pulsifer’s abrogation of Garcon and finding that “a defendant who has any of the three criminal-history components under § 3553(f )(1) is disqualified from safety valve sentencing relief ” (emphasis in original)). Under Pulsifer, Castillo is ineligible for safety-valve relief be- cause he has more than four qualifying criminal-history points and a prior three-point offense. The District Court erred in granting Castillo safety-valve relief and sentencing him below the statutory minimum sentence. Accordingly, we vacate Castillo’s sentence and remand for further proceedings. VACATED AND REMANDED.