PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           _______________

                No. 24-1484
              _______________

      UNITED STATES OF AMERICA


                      v.

            MICHAEL MILCHIN,
                         Appellant
             _______________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
        (D.C. No. 2:17-cr-00284-001)
 District Judge: Honorable Gerald J. Pappert
              _______________

        Submitted: September 6, 2024

Before: JORDAN, HARDIMAN, and PORTER
             Circuit Judges.

           (Filed: February 5, 2025)
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

Michael Milchin
Cumberland FCI
P.O. Box 1000
Cumberland, MD 21501
      Pro Se Appellant
                    ______________

                OPINION OF THE COURT 1
                    ______________

PORTER, Circuit Judge.

       Michael Milchin pleaded guilty to several criminal
charges in connection with his leadership role in a conspiracy
to illegally distribute opioids. He unsuccessfully sought a
retroactive application of the new offense-level reduction
under U.S.S.G. § 4C1.1 for “zero-point offenders.” But




1
  Judge Jordan participated in this decision and the decision to
redesignate this opinion as precedential in response to the
government’s motion prior to his retirement on January 15,
2024.




                               2
Milchin is not eligible for application of the zero-point
offender reduction, so we will affirm.

                               I

        On February 9, 2018, Michael Milchin pleaded guilty to
charges of healthcare fraud, conspiracy to commit healthcare
fraud, conspiracy to distribute oxycodone, and possession of
oxycodone with intent to distribute. He was sentenced to a total
term of 168 months of imprisonment, and three years of
supervised release. Milchin unsuccessfully sought relief from
his sentence, filing numerous motions for compassionate
release and motions based on his health, his mother’s health,
his purported rehabilitation, and the threat of COVID-19 in
prison.

       This appeal concerns Milchin’s motion for a sentence
reduction pursuant to 

(c)(2) based on United
States Sentencing Guideline § 4C1.1. Effective November 1,
2023, § 4C1.1 allows an offense-level reduction for certain
offenders with zero criminal history points at the time of their
sentencing. USSG § 4C1.1.

        The District Court first concluded that Milchin was not
eligible for the reduction on November 13, 2023, but dismissed
his motion without prejudice based on a stay of motions
seeking retroactive application of § 4C1.1. Milchin then
requested appointment of counsel for assistance in litigating
his eligibility for relief under § 4C1.1. The Court denied that
request on March 1, 2024, determining that “Milchin does not
qualify for a sentence reduction.” Order at 1–2 n.1, United
States v. Milchin, No. 17-284-1 (E.D. Pa. Mar. 1, 2024), ECF
No. 531. On March 4, 2024, Milchin filed an “Emergency
Motion for Sentence Reduction” repeating his claim for relief




                               3
under § 4C1.1. Emergency Motion for Sentence Reduction at
1, United States v. Milchin, No. 17-284-1 (E.D. Pa. Mar. 4,
2024), ECF No. 532. The District Court denied that motion,
citing its earlier orders. Milchin appealed.

                               II

      The District Court had jurisdiction under 

. We have jurisdiction under 

.

       We review de novo a criminal defendant’s eligibility for
consideration of a reduced sentence based on a retroactive
guideline amendment. United States v. McBride, 

 (3d Cir. 2002).

                              III 2

       Section 3582 of Title 18 of the United States Code
authorizes prisoners to seek a reduction of their term of




2
  Milchin also faults the District Court for “not providing any
meaningful consideration of the Appellant’s 3553(a) factors.”
Appellant’s Br. at 4. But courts are only required to consider
the factors set forth in 

(a) if the Defendant has
a valid basis for seeking a reduction in his term of
imprisonment. See 

(c). Because the District
Court held that Milchin had not “been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” it
was not required to consider the § 3553(a) factors. 

(c)(2).




                               4
imprisonment in cases where the defendant had “been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered.” 

(c)(2). The issue presented on appeal is whether Milchin
was in fact sentenced under a sentencing range that was
subsequently lowered. Milchin argues that § 4C1.1 of the
Sentencing Guidelines, which became effective on November
1, 2023, lowered the sentencing range under which he had
originally been sentenced in 2018.

       Section 4C1.1 reduces the offense-level for certain
offenders that had zero criminal history points at the time of
their sentencing. USSG § 4C1.1. Several types of offenders
and offenses are excluded from eligibility for an offense-level
reduction under § 4C1.1. If, for example, the defendant’s
offense “result[ed] in death or serious bodily injury,” the
offense was “a sex offense,” or he “use[d] violence or credible
threats of violence in connection with the offense,” then
§ 4C1.1 provides no relief. USSG § 4C1.1(a)(3)–(5).

       Relevant here, § 4C1.1 requires that an offender “did
not receive an adjustment under § 3B1.1 (Aggravating Role)
and was not engaged in a continuing criminal enterprise, as
defined in 

.” USSG § 4C1.1(a)(10) (emphasis
added). Milchin received an aggravating role adjustment, but
was not engaged in a “continuing criminal enterprise” as that
term is defined.

       Milchin argues that because he did not both receive an
aggravating role adjustment, and engage in a continuing
criminal enterprise, he is eligible for § 4C1.1’s offense-level
reduction. We disagree and hold that § 4C1.1 makes ineligible
any defendant that either received an aggravating role
adjustment or was engaged in a continuing criminal enterprise.




                              5
       The Supreme Court’s recent decision in Pulsifer v.
United States guides our analysis. 

 (2024). There,
the Court considered how a similarly phrased provision applied
to defendants with “(A) more than 4 criminal history points . . .
(B) a prior 3-point offense . . . and (C) a prior 2-point violent
offense.” 

(f)(1) (emphasis added); Pulsifer,
601 U.S. at 129.

       The arguments in this case trace those in Pulsifer.
There, the defendant argued that the provision at issue applied
only to defendants that satisfied all of Subsection (f)’s
subparagraphs. Id. at 130. The government countered that the
provision applied to defendants that satisfied any of Subsection
(f)’s subparagraphs. Id. at 133–34. Recognizing that both
interpretations are “grammatically possible,” the Court looked
to the provision’s “legal context”—the contents of the
provision and how the provision “fit[s] with other pertinent
law.” Id. at 140–41. We adopt a similar approach.

       As a first step, we note that both conjunctive and
disjunctive readings of § 4C1.1(a)(10) are “grammatically
permissible” in the abstract. Id. at 133. “No grammatical
principle precludes” reading Subsection (10) to apply only to
defendants that both received an aggravating role adjustment
and were not engaged in a continuing criminal enterprise. Id.
at 137. But the same can be said of the disjunctive reading. See
United States Sentencing Commission, Amendments to the
Sentencing Guidelines 42 (2024) (noting that “several
stakeholders have questioned whether either condition in
subsection (a)(10) is disqualifying or whether only the
combination of both conditions is disqualifying”).

        Situating Subsection (10) within its legal context makes
clear that “and” operates disjunctively. Subsection (10), if read




                               6
conjunctively, would be superfluous because it is impossible
for a defendant to have both received an aggravating role
adjustment and to have been found engaged in a continuing
criminal enterprise in the same case.

       Start with § 2D1.5, which is the section dealing with
“Continuing Criminal Enterprise.” USSG § 2D1.5.
Application Note 1 of that section directs users to “not apply
any adjustment from Chapter Three, Part B (Role in the
Offense).” USSG § 2D1.5, comment. (n.1). And an
aggravating role adjustment is just that—an “adjustment[]
from Chapter Three, Part B.” USSG § 4C1.1(a)(10); see USSG
§ 3B1.1. Putting this together, a defendant found to have
engaged in a continuing criminal enterprise, will never
“receive an adjustment under § 3B1.1.” 3 Id. The upshot is that
Subsection (10) would be a nullity under a conjunctive
interpretation.

       The canon against surplusage counsels against adopting
interpretations that render a statute “superfluous, void, or
insignificant.” TRW Inc. v. Andrews, 

 (2001)
(quoting Duncan v. Walker, 

 (2001)). And
“[w]hen a statutory construction ‘render[s] an entire
subparagraph meaningless’ . . . the canon against surplusage




3
   The Sentencing Guidelines’ Applications Notes are
controlling so long as “the guideline which the commentary
interprets will bear the construction.” United States v. Nasir,

 (3d Cir. 2021) (quoting Stinson v. United
States, 

 (1993)).




                              7
applies with special force.” Pulsifer, 601 U.S. at 143 (quoting
Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 

(2018)). Milchin’s proffered interpretation would do just that.

       The Supreme Court in Pulsifer similarly relied on the
“statutory difficult[y]” created by an interpretation that
deprived Subparagraph (A) of the criminal history requirement
in the safety-valve provision of “any operative significance.”
Pulsifer, 601 U.S. at 141. Recall that the provision at issue in
Pulsifer permitted sentencing “without regard to any statutory
minimum sentence” so long as the defendant did not have “(A)
more than 4 criminal history points . . . (B) a prior 3-point
offense . . . and (C) a prior 2-point violent offense.” 

(f) (emphasis added). The Court recognized that, if read
conjunctively, Subparagraph (A) would be superfluous since a
defendant with both “a prior 3-point offense” and “a prior 2-
point violent offense” would always have 5—“more than 4”—
criminal history points. Id.; Pulsifer, 601 U.S. at 142.

       Thus far, every court to have considered the question
has adopted the disjunctive reading of “and” in U.S.S.G.
§ 4C1.1(a)(10). See United States v. Arroyo-Mata, 

 at *2 n.6 (N.D. Ga. Apr. 1, 2024) (collecting district
court cases). We agree.

                        *      *       *

      For these reasons, we will affirm the District Court’s
judgment.




                               8