United States v. O'Neil ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1325
UNITED STATES OF AMERICA,
Appellee,
v.
SHAUN K. O'NEIL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
William Maselli for appellant.
Michael M. DuBose, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, was on brief, for
appellee.
December 15, 1993
*Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. Concluding, as we do, that
SELYA, Circuit Judge.
several courts of appeals have read the supervised release
revocation provision (SRR provision), 18 U.S.C. 3583(e)(3)
(1988 & Supp. III 1991), in too crabbed a manner, we hold today
that this statute permits a district court, in resentencing a
person who has violated the conditions of his or her original
term of supervised release, to impose a new term of supervised
release in conjunction with an additional prison term, subject to
certain restrictions limned in the statute itself. Because we
are staking out a position at variance with the majority view, we
write at some length to explain our rationale.
I. BACKGROUND OF THE CASE
After having broken into a post office and stolen mail
in violation of 18 U.S.C. 1708, 2115 (1988), defendant-
appellant Shaun K. O'Neil pleaded guilty to a class D felony. On
November 9, 1990, the district court sentenced him to serve
twenty-one months in prison (the top of the applicable guideline
sentencing range), followed by three years of supervised release
(the maximum allowed by statute). We affirmed the sentence. See
United States v. O'Neil, 936 F.2d 599 (1st Cir. 1991).
Soon after his release from the penitentiary, appellant
committed several significant violations of the supervised
release conditions, e.g., stealing a firearm while intoxicated.
Dubbing appellant a "walking juvenile crime wave" who posed "a
serious danger to the public," the district judge revoked the
original term of supervised release and sentenced appellant to an
2
additional twenty-four months in prison, to be followed by a new
three-year supervised release term. O'Neil appeals, asking that
we vacate his sentence and remand for resentencing. His
principal allegation is that the reimposition of supervised
release exceeds the district court's statutory authority.
II. THE STATUTE
Passed as part of the Sentencing Reform Act of 1984, 18
U.S.C. 3551-3559, 3561-3566, 3571-3574, 3581-3586, & 28 U.S.C.
991-98 (1988 & Supps.), the supervised release alteration
statute, 18 U.S.C. 3583(e), of which the SRR provision is a
part, authorizes a court to alter a term of supervised release in
a number of ways. A court may:
(1) terminate a term of supervised release
and discharge the person released at any time
after the expiration of one year of
supervised release . . . ;
(2) extend a term of supervised release if
less than the maximum authorized term was
previously imposed, and may modify, reduce,
or enlarge the conditions of supervised
release, at any time prior to the expiration
or termination of the term of supervised
release . . . ;
(3) revoke a term of supervised release, and
require the person to serve in prison all or
part of the term of supervised release
without credit for time previously served on
postrelease supervision, if it finds by a
preponderance of the evidence that the person
violated a condition of supervised release,
pursuant to the provisions of the Federal
Rules of Criminal Procedure that are
applicable to probation revocation and to the
provisions of applicable policy statements
issued by the Sentencing Commission, except
that a person whose term is revoked under
this paragraph may not be required to serve
more that 3 years in prison if the offense
3
for which the person was convicted was a
Class B felony, or more than 2 years in
prison if the offense was a Class C or D
felony; or
(4) order the person to remain at his place
of residence during nonworking hours . . . .
18 U.S.C. 3583(e) (emphasis supplied). The present controversy
centers on the third of these four options.
The alteration statute empowers a resentencing court,
in certain circumstances, to elongate a previously imposed term
of supervised release, 18 U.S.C. 3583(e)(2), or, in other
circumstances, to revoke supervision and impose imprisonment in
lieu of supervision, id. at 3583(e)(3). What is unclear, and
what has confounded the courts, is whether an intermediate
resentencing option exists: Does the statute allow a court to
revoke supervision and, in effect, restructure the defendant's
sentence by imposing a combination of imprisonment plus further
supervision?
Although this court has never addressed the question, a
minimum of six circuits have read the statute to foreclose the
reimposition of a term of supervised release following revocation
and imprisonment. See United States v. Truss, 4 F.3d 437, 438
(6th Cir. 1993); United States v. McGee, 981 F.2d 271, 274-76
(7th Cir. 1992); United States v. Koehler, 973 F.2d 132, 134-36
(2d Cir. 1992); United States v. Cooper, 962 F.2d 339, 340-42
(4th Cir. 1992); United States v. Holmes, 954 F.2d 270, 271-73
(5th Cir. 1992); United States v. Behnezhad, 907 F.2d 896, 898-99
(9th Cir. 1990); see also United States v. Gozlon-Peretz, 894

4
F.2d 1402, 1405 n.5 (dictum), amended, 910 F.2d 1152 (3d Cir.
1990), aff'd on other grounds, 498 U.S. 395 (1991). The Tenth
Circuit came to the same conclusion belatedly, after reversing
its field. See United States v. Rockwell, 984 F.2d 1112, 1117
(10th Cir.) (overruling United States v. Boling, 947 F.2d 1461(10th Cir. 1991)), cert. denied, 113 S. Ct. 2945 (1993). The
Eleventh Circuit has sent mixed signals. In United States v.
Tatum, 998 F.2d 893, 894-95 (11th Cir. 1993) (per curiam), the
court embraced the majority view. A second panel, two weeks
later, bowed to Tatum on stare decisis grounds; but, in a sharp
departure from customary practice, all three judges expressed
their profound disagreement with Tatum's holding. See United
States v. Williams, 2 F.3d 363, 365 (11th Cir. 1993). Thus, nine
circuits in all read the SRR provision narrowly. On the other
side of the ledger, the Eighth Circuit stands as a waif in the
wilderness. See United States v. Schrader, 973 F.2d 623, 624-25
(8th Cir. 1992) (holding that section 3583(e)(3) permits the
reimposition of a term of supervised release following revocation
and imprisonment); see also United States v. Levi, 2 F.3d 842,
846 (8th Cir. 1993) (reaffirming Schrader).
We are called upon today to add our voice to the
chorus. We approach this task mindful that, while the decision
to revoke a term of supervised release is ordinarily reviewable
for abuse of discretion, the quintessentially legal question of
whether a post-revocation sentence exceeds statutory limits
necessitates plenary review . See Rockwell, 984 F.2d at 1114;
5
see also United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.
1992) (holding that interpretive questions under the sentencing
guidelines should be reviewed de novo).
III. THE COMPETING INTERPRETATIONS
We start our quest by elucidating the two ways in which
the SRR provision may be read as a coherent command.
A
A
To achieve the result reached by the majority of
courts, the assiduous reader must proceed along the following
lines. First, read the word "revoke" restrictively, i.e., in the
sense of "cancel" or "annul," so that it does not allow either
the recommencing of the previously imposed term of supervision or
the commencement of a new term of supervision. Next, suppose
that the word "term", when used for the second time in the SRR
provision, does not imply that there is a term of supervision in
existence, but merely serves to set a temporal limit on the
prison sentence that may be imposed following revocation; or, put
another way, that the second use of the word "term" is to be read
as if it were shorthand for a more verbose phrase like "the time
period equivalent to what would have been the term." Only if
these interpretive steps are taken does it become clear, under
the SRR provision, that a court may absolutely extinguish a term
of supervised release and impose a new prison term, subject to
certain statutory limitations,1 but, withal, may not impose any
1On the majority's reading, the statutory limit in a given
case is the lesser of (i) the length of the original term of
supervision, or (ii) the numerical limit designated by the final
6
other or further supervision term.
B
The other possible parsing of the SRR provision
proceeds in three phases. At the outset, consider the
possibility that the word "revoke" means simply to "recall."
See, e.g., Black's Law Dictionary 1322 (6th ed. 1990) (defining
"revoke" as "[t]o annul or make void by recalling or taking back
. . . ."). If "revoke" is read in this way, the SRR provision is
not inconsistent with the recommencement of supervised release.
Next, from the fact that the SRR provision mentions a "term of
supervised release" in that portion of the text following the
conferral of the power to revoke, the reader plausibly can infer
that the supervision term recommenced upon revocation else
there would be no term then in existence. Finally, having
posited that the supervision term is alive and well,
notwithstanding the court's order of revocation, the reader can
conclude that, in authorizing the court to send a person to
prison after revocation for "all or part of the term," the SRR
provision contemplates that any remaining part of the original,
recalled term will be devoted to supervision. On this reading,
the SRR provision allows a court to call back a term of
supervised release, recommence the term, convert all or part of
clause of the SRR provision vis-a-vis each specified class of
offense.
7
it into jail time (up to the statutory limit),2 and retain any
remainder as a period of non-detentive monitoring.
Before leaving these competing versions, we wish to
make two preliminary points. First, we do not regard the initial
step in these analyses to be indispensable. See infra Part
IV(A). Second, each of the competing versions requires the
reader to make a leap of faith beyond the four corners of the SRR
provision itself. In this sense, then, the playing field is
level.
IV. CHOOSING AN INTERPRETATION
We turn to the difficult choice between these meanings,
using the full panoply of available aids to the construction of
legislative enactments.
A
In approaching statutory interpretation, "it is
axiomatic that the plain words and structure of the statute must
be paramount." United States v. Aversa, 984 F.2d 493, 498 (1st
2On this reading of the SRR provision, there are two
operative limits in any given case. First, the combined length
of all post-revocation impositions (incarcerative and
supervisory) may not exceed the length of the original term of
supervision. Second, the incarcerative portion of the post-
revocation sentence may not exceed the numerical limit designated
by the SRR provision's final clause for the class of offense in
question. It will be noted that, on this reading, the concluding
clause of the SRR provision places an absolute ceiling on the
time a person may serve in prison following revocation of a term
of supervised release and thereby ensures that the criminal
justice system cannot trap an offender in its web forever. This
point adequately answers those who assert that construing the SRR
provision broadly sets the stage for a never-ending cycle of
revocation, resentencing to prison plus supervision, and
revocation again, see McGee, 981 F.2d at 275.
8
Cir. 1993) (en banc). Most of the courts that have read section
3583(e) to foreclose the imposition of a post-revocation term of
supervised release have done so under the banner of plain
meaning. Those courts read the word "revoke" as signifying an
extinguishment so uncompromising as to preclude a post-revocation
term of supervision. See, e.g., McGee, 981 F.2d at 274; Koehler,
973 F.2d at 134-35; Holmes, 954 F.2d at 272. This inflexible
insistence upon a particular version of lexicographic orthodoxy
seemingly overlooks that "the plain-meaning doctrine is not a
pedagogical absolute." Greenwood Trust Co. v. Massachusetts, 971
F.2d 818, 825 (1st Cir. 1992), cert. denied, 113 S. Ct. 974(1993). In particular, "[t]erms in an act whose meaning may
appear plain outside the scheme of the statute can take on a
different meaning when read in their proper context." Id.(citing various Supreme Court precedents).
The Williams court found "revoke" plain enough, but
read it differently. It suggested that "revoke" could be read in
the alternative sense of "call back." Williams, 2 F.3d at 365.
This sense is best illustrated by the poet William Cowper, who
wrote:
How readily we wish time spent revok'd,
That we might try the ground again. . . .
The Task, Book VI, l.25 (1784); see also supra p. 7 (quoting
Black's Law Dictionary). While we regard this approach as
plausible, we do not see why even the most inelastic
interpretation of "revoke" would frustrate a reading of the SRR
9
provision that permits imposition of a post-revocation term of
supervision. If a term has been called back, it may be
reimposed. If a term has been absolutely terminated, a new term
still may be imposed in the same way that, once a license is
revoked, a new one may be issued. In the end, the semantic
debate over the word "revoke" turns out to be no more than the
swapping of heuristics. No matter how the word is defined, the
language of the SRR provision is consistent with the possibility
that a post-revocation term of supervision lawfully may be
imposed.
We believe this linguistic intuition is verified by
historical precedents. Previous Congresses used the word
"revoke" in crafting the statutory forerunners of section
3583(e)(3). See, e.g., 18 U.S.C. 4214 (1988) (repealed 1984
anent offenses committed after November 1, 1987) (revocation of
parole); 21 U.S.C.A. 841(c) (1981 & Supp. 1993) (repealed 1984)
(revocation of special parole); 18 U.S.C. 3653 (1988) (repealed
1984 anent offenses committed after November 1, 1987) (revocation
of probation). Notwithstanding Congress's use of the word
"revoke," it was widely thought that reimposition of a period of
non-detentive monitoring, to commence following post-revocation
imprisonment, was permitted under all three of these antecedent
statutory provisions. See infra Part IV(D).
B
Our structural analysis of the alteration statute and,
particularly, of the SRR provision starts with the recognition
10
that the first appellate court to interpret section 3583(e)
rested its holding on the notion that the alteration statute is
structured as a set of discrete options separated by the word
"or." Given the shape of the statute, the court reasoned, a
judge may either "extend" the term under subsection (e)(2) or
"revoke" it under subsection (e)(3), but not both. See
Behnezhad, 907 F.2d at 898-99. Subsequent courts quickly moved
beyond this restrictive rationale, realizing that it collapses
into the debate over the meaning of the SRR provision and,
therefore, proves nothing. See, e.g., McGee, 981 F.2d at 274;
Holmes, 954 F.2d at 272.
To the extent that the repeated use of the disjunctive
in section 3583(e) sheds any light on Congress's intent, we
believe that it favors a broad reading of the SRR provision. The
first principal option that the alteration statute presents to a
district judge is to "terminate" the supervised release term
previously imposed under subsection (e)(1). If Congress meant to
"revoke" supervised release in the hard sense of the word, it
could simply have used the same language twice. Most likely,
then, to "revoke" as used in the SRR provision means something
other than to "terminate".
C
Two general principles of statutory interpretation
inform our conclusion that the SRR provision cannot be read
grudgingly: the principle that the grant of a greater power
necessarily includes the grant of a lesser power, unless the
11
authority to exercise a lesser power is expressly reserved; and
the principle that statutes should not be read to produce
illogical results.
1. The Greater Includes the Lesser. The principle
1. The Greater Includes the Lesser.
that the grant of a greater power includes the grant of a lesser
power is a bit of common sense that has been recognized in
virtually every legal code from time immemorial. It has found
modern expression primarily in the realm of constitutional law.
See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486
U.S. 750, 763 (1988) (commenting that the power to prohibit
speech entirely includes the lesser power to license it at the
government's discretion); Posadas de Puerto Rico Assocs. v.
Tourism Co., 478 U.S. 328, 345 (1986) (holding that the power to
ban casino gambling includes the lesser power to prohibit
advertising of casino gambling).
While this principle has nested less frequently in the
criminal law context, it is fully applicable in that milieu. To
illustrate, we use an example that bears a strong family
resemblance to the problem at hand. The federal sentencing
guidelines originally stated that "an extraordinary physical
impairment may be a reason to impose a sentence other than
imprisonment." U.S.S.G. 5H1.4, p.s. (Nov. 1990). Three courts
of appeals, including this one, refused to understand this
provision to require an all-or-nothing choice between imposing an
incarcerative sentence within the guideline range or imposing no
prison sentence. The courts reasoned that, despite the
12
unvarnished language of the provision, the greater departure (no
incarceration) necessarily included the lesser departure (a
prison sentence below the bottom of the guideline sentencing
range). See United States v. Slater, 971 F.2d 626, 635 (7th Cir.
1992); United States v. Hilton, 946 F.2d 955, 958 (1st Cir.
1991); United States v. Ghannam, 899 F.2d 327, 329 (4th Cir.
1990).3
Similarly, in this case, we are reluctant to posit an
all-or-nothing choice between continuing a defendant on
supervised release (with no further incarceration) and
imprisoning the defendant (with no further supervision). We
agree with the Eighth Circuit that if the SRR provision gives a
district court the power to sentence an offender to a full term
of imprisonment upon revocation, it must necessarily confer upon
the court "the power under that subsection to impose a less
drastic sanction." Schrader, 973 F.2d at 625.
2. Avoiding Illogical Results. It is also an
2. Avoiding Illogical Results.
established canon of statutory construction that a legislature's
words should never be given a meaning that produces a stunningly
counterintuitive result at least if those words, read without
undue straining, will bear another, less jarring meaning. See
Kelly v. United States, 924 F.2d 355, 361 (1st Cir. 1991); United
States v. Meyer, 808 F.2d 912, 919 (1st Cir. 1987); Sutherland
3This intuition was vindicated by Congress and the
Sentencing Commission when, effective November 1, 1991, the
phrase "other than imprisonment" was changed to read "below the
applicable guideline range." See U.S.S.G. App. C, Amend. 386
(Nov. 1991).
13
Stat. Const. 45.12 (5th ed.). This principle goes back to the
early days of the Republic. See M'Culloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 355 (1819).
In this case, the sentencing rule that emerges from a
narrow reading of section 3583(e)(3) is surpassingly difficult to
defend from a policy perspective. It is hard to conceive any
logical reason why Congress might authorize sentencing an
offender to a non-mandatory term of imprisonment, variable in the
judge's discretion, upon revocation of a term of supervised
release, but would, at the same time, withhold authority to
impose a sentence of equivalent duration upon more lenient
conditions. See Williams, 2 F.3d at 365; Schrader, 973 F.2d at
625. Although we could jury-rig a legislative justification for
so cramped an interpretation of the law, we think it is self-
evident that barring judges from reimposing supervision following
revocation needlessly inhibits the court's sentencing options
while at the same time failing to advance any of the fundamental
goals of criminal sentencing.4 As a matter of policy, then, the
implications for sentencing inherent in a stingy reading of the
SRR provision go a long way toward convincing us that Congress
could not have favored (or intended to compel) such a reading.
D
As a rule, courts should resort to legislative history
4The fundamental goals of the Sentencing Reform Act are
commonly thought to include uniformity, honesty, and
proportionality. See United States v. Williams, 891 F.2d 962,
963-64 (1st Cir. 1989); see also U.S.S.G. Ch.1, Pt.A, intro.
comment., at 1A2 (Nov. 1992).
14
and other guides to congressional intent when the words of a
statute give rise to ambiguity or when they lead to an
unreasonable interpretation. See, e.g., United States v. Charles
George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987); Barry v.
St. Paul Fire & Marine Ins. Co., 555 F.2d 3, 7 (1st Cir. 1977),
aff'd, 438 U.S. 531 (1978). Though we believe that a generous
reading of section 3583(e)(3) best comports with plain language,
statutory structure, logic, and sound policy, we are aware that
ambiguity is commonly thought to exist when statutory language is
susceptible to differing, but nonetheless plausible,
constructions. See United States v. R.L.C., 112 S. Ct. 1329, 1334
(1992); cf. Allen v. Adage, Inc., 967 F.2d 695, 700 (1st Cir.
1992) (explaining when ambiguity exists in the text of a
contract). Here, as the weight of authority unquestionably
attests, there is room for disagreement over the meaning of the
SRR provision. Therefore, we continue our inquiry.
Where ambiguity lurks, the burial ground in which
superseded statutes rest sometimes proves a fertile field for
assistance in determining the meaning of existing statutes. See
Dwight v. Merritt, 140 U.S. 213, 217 (1891); see also Sutherland
Stat. Const. 51.04. We think that superseded statutes are of
particular value in construing provisions within the Sentencing
Reform Act. We have recognized and we believe the Sentencing
Commission has recognized the desirability of emulating pre-
guidelines practice to the extent that plain meaning does not
compel change. Thus, we have repeatedly referred to pre-
15
guidelines precedent as an aid to interpreting the sentencing
guidelines. See, e.g., United States v. Emery, 991 F.2d 907, 911
(1st Cir. 1993); United States v. Blanco, 888 F.2d 907, 910 (1st
Cir. 1989); see also U.S.S.G. 1A3, (Nov. 1992) (stating policy
that "the guidelines represent an approach that begins with, and
builds upon," pre-guidelines practice). We believe the same
principle applies in construing the Sentencing Reform Act itself.
To place the genealogy of supervised release in
historical context, one must first recognize that non-detentive
monitoring developed along two separate lines: probation and
parole. The Sentencing Reform Act, and the guidelines
implementing it, swept aside both of these modalities, replacing
probation with an entirely new creature bearing the same name and
replacing parole (as well as its interim variant, special parole)
with supervised release. See Gozlon-Peretz v. United States, 498
U.S. 395, 400 (1991) (noting that Congress intended to replace
most forms of parole, including special parole, with supervised
release).5 We think it is of critical importance that, prior to
5The transition from special parole to supervised release
was grotesquely complicated. Most existing provisions for non-
detentive monitoring were repealed in 1984 as part of the
Sentencing Reform Act, but the repeal did not take effect until
November 1, 1987. However, the special parole provision, 21
U.S.C. 841(b)(1)(A), was repealed outright. Thus, from October
12, 1984 through October 27, 1986, neither special parole nor any
substitute for it was in force. Apparently desiring to eliminate
this hiatus, Congress amended the law to insert supervised
release in lieu of special parole for the interval from October
27, 1986 to November 1, 1987. Congress accomplished this feat by
amending 21 U.S.C. 841(b) (under which no provision is made for
revocation). Subsequent to November 1, 1987, supervised release
has been controlled by the provisions of the Sentencing Reform
Act. See generally Gozlon-Peretz, 498 U.S. at 844-46
16
the sea change instigated by the Sentencing Reform Act, it was
widely understood that any of the existing forms of non-detentive
monitoring could follow a post-revocation sentence of
imprisonment. We survey the field.
1. Probation. The debate in which we are embroiled
1. Probation.
today closely tracks an earlier debate over post-revocation
probation. The relevant pre-guidelines statute empowered a court
to "revoke probation, and impose any sentence which might
originally have been imposed." 18 U.S.C. 3653 (repealed).6
Under this law, five circuits viewed probation as a kind of
"sentence" that could be imposed after revocation of probation.
See Banks v. United States, 614 F.2d 95, 99 n.10 (6th Cir. 1980);
United States v. Rodgers, 588 F.2d 651, 654 (8th Cir. 1978);
Nicholas v. United States, 527 F.2d 1160, 1162 (9th Cir. 1976);
United States v. Lancer, 508 F.2d 719, 730-32 (3d Cir.) (en
banc), cert. denied, 421 U.S. 989 (1975); Smith v. United States,
505 F.2d 893, 895 (5th Cir. 1974). The Tenth Circuit and a
district court in the Fourth Circuit took the opposite view. See
United States v. Martin, 786 F.2d 974, 976 (10th Cir. 1986)
(declining to overrule Fox v. United States, 354 F.2d 752 (10th
Cir. 1965)); United States v. Buchanan, 340 F. Supp. 1285, 1288-
(explicating historical development).
6We consider it significant that no court, on either side of
this debate, suggested that the statute's use of the word
"revoke" might require a ban on the reimposition of a non-
detentive term in sentencing defendants who had violated
probation. Instead, the debate hinged on the word "sentence"
specifically, on whether probation could be conceived as a kind
of "sentence."
17
89 (E.D.N.C. 1972). When the smoke cleared, "the weight of
authority heavily favor[ed] the conclusion that reimposition of
probation is permissible upon revocation of probation." United
States v. Urdaneta, 771 F. Supp. 28, 32 (E.D.N.Y. 1991)
(canvassing pre-guidelines case law).
Under the new sentencing regime, the statute treating
with post-revocation probation deals much more directly with the
vexed question of reimposition. It empowers a court to "revoke
the sentence of probation and impose any other sentence that was
available at the time of the initial sentencing." 18 U.S.C.
3565(a) (1988) (emphasis supplied). Although the question is not
before us, and we, accordingly, do not rule definitively on it,
it seems probable that Congress intended to depart from
prevailing pre-guidelines practice and forbid reimposition of
probation following the revocation of a term of probation.7 We
draw this inference from the insertion of the word "other," on
the theory that a change in statutory language should be "read,
if possible, to have some effect." American Nat'l Red Cross v.
S.G., 112 S. Ct. 2465, 2475 (1992). It thus appears quite likely
that the drafters of section 3565 were aware of the pre-
guidelines case law and knew how to design a statute in such a
7Even if Congress intended to preclude reimposition of
probation following revocation of a term of probation, that
intention has no implications for supervised release. Under the
Sentencing Reform Act, a term of probation may not be imposed
when a defendant is sentenced to imprisonment. See 18 U.S.C.
3553(a)(3). Since a "combined" sentence is prohibited ab initio,
it would make little sense to allow a combined form of sentencing
upon revocation of probation.
18
way as to address its impact head-on.
2. Parole. There was never any question that non-
2. Parole.
detentive monitoring could follow a prison sentence imposed in
consequence of the revocation of a term of parole or special
parole. See, e.g., 28 C.F.R. 2.52 app. (1993) (setting out
United States Parole Commission's policy statement to the effect
that "an adequate period of renewed supervision following release
from reimprisonment or reinstatement to supervision, must be
available"); id. at 2.57 (making the policy statement
applicable to special parole); see also Bentsen v. Ralston, 658
F.2d 639, 640 (8th Cir. 1981) (citing cases for the proposition
that an erstwhile parolee serving post-revocation prison time may
earn good-time credit applicable to a second parole period). In
this context, the Senate report that accompanied the Sentencing
Reform Act demonstrates Congress's awareness of the pre-
guidelines practice:
Under [pre-guidelines] law, if a parolee
violates a condition of parole that results
in a determination to revoke parole, the
revocation has the effect of requiring the
parolee to serve the remainder of his
original term of imprisonment, subject to
periodic consideration for re-release as
required for any prisoner who is eligible for
parole.
S. Rep. No. 225, 98th Cong. 2d Sess., reprinted in 1984
U.S.C.C.A.N. 3182, 3306 (emphasis supplied).
We find this historical phenomenon to be especially
significant in light of the wording of the provision pertaining
to the revocation of special parole. The governing statute
19
decreed that "[a] person whose special parole term has been
revoked may be required to serve all or part of the remainder of
the new term of imprisonment." 21 U.S.C.A. 841(c) (repealed).
Notwithstanding that in section 841(c), as in section 3583(e)(3),
there was no explicit authorization to commence a second non-
detentive term, the Parole Commission, whose interpretation of a
provision it is charged to execute is entitled to considerable
weight, see Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844-45 (1984), explicitly endorsed
the reimposition of special parole.
Given the obvious similarities in language, structure,
and substance between section 841(c) and section 3583(e)(3), we
are fortified in our conclusion that section 3583(e)(3) plausibly
may bear a broader interpretation than it heretofore has
received. Moreover, it seems highly likely that Congress, in
replacing a repealed provision with a new provision of hauntingly
similar wording, intended that the pre-guidelines interpretation
would continue to apply. Otherwise, Congress would almost
certainly have altered the language to clarify its intent as it
did in connection with probation, see supra Part IV(D)(1).
For these reasons, the historical development of non-
detentive monitoring, in all its permutations, reinforces our
intuition that Congress meant to leave undisturbed the widely
accepted pre-guidelines practice of allowing district courts
discretion to order a period of non-detentive monitoring as a
part of the sentence imposed for violation of supervised release
20
conditions.
E
Studying what has transpired in Congress subsequent to
the passage of the alteration statute produces another possible
aid to statutory construction. The focus here is on a bipartisan
quartet comprising four senior members of the Senate Judiciary
Committee thought to have been supremely influential in the
passage of the Sentencing Reform Act: Senators Thurmond,
Kennedy, Biden, and Hatch. These senators uniformly favor a
clarifying amendment that would remove any doubt that section
3583(e)(3) allows reimposition of supervised release. See, e.g.,
137 Cong. Rec. S10021 (daily ed. July 15, 1991) (text of S.188,
sponsored by Sens. Kennedy, Thurmond, and Biden); 139 Cong. Rec.
S2090 (daily ed. February 25, 1993) (S.468, sponsored by Sen.
Thurmond, referred to Judiciary Committee); 139 Cong. Rec. S3054
(daily ed. March 17, 1993) (Sen. Hatch added as cosponsor to
S.468).8
We understand that such thirteenth-hour pronouncements
are of uncertain value. Though courts may accord some weight to
a subsequent enactment that reflects directly on a statute under
scrutiny, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 380-81 (1969), pronouncements made in the legislative
history of that subsequent statute frequently are viewed as
8For what, if any, relevance it may have, the Sentencing
Commission also favors a clarifying amendment. See U.S.S.G.
7B1.3(g)(2) (Nov. 1992) (policy statement reading statute to
allow reimposition of supervision); id. at 7B1.3, comment. (n.3)
(advocating passage of clarifying amendment).
21
unreliable, see Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 118 n.13 (1979), and pronouncements regarding
an unpassed bill may be even more problematic, see Chapman v.
United States, 111 S. Ct. 1919, 1927 n.4 (1991). Accordingly, we
reach our decision today without placing significant weight on
post-enactment materials.
Nonetheless, courts, including the Supreme Court and
this court, have occasionally thought post-enactment declarations
of congressional intent possessed some probative value. See,
e.g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572,
596 (1980), (relying in part on committee report relative to
subsequently enacted amendment); United States v. Ven-Fuel, Inc.,
758 F.2d 741, 758-59 (1st Cir. 1985) (same). We believe that if
post-enactment history, short of the actual passage of a new
bill, is ever to be given weight, this case is a nearly ideal
candidate. The sponsors of the proposed amendments include the
same senators who sponsored the enacted statute;9 the emendatory
legislation has been characterized by a sponsor as "clarif[ying]"
in nature, rather than as revisory or augmentative, see 139 Cong.
Rec. S2151 (daily ed. Feb. 25, 1993) (statement of Sen. Thurmond
on S.468); 137 Cong. Rec. S8892 (daily ed. June 27, 1991)
(statement of Sen. Thurmond on S.188); and, in various
9Senators Thurmond and Biden introduced the omnibus crime
bill containing the provisions that became the Sentencing Reform
Act. Senator Kennedy submitted a freestanding sentencing bill,
containing nearly identical provisions, at approximately the same
time. See Kate Stith & Steve Y. Koh, The Politics of Sentencing
Reform: The Legislative History of the Federal Sentencing
Guidelines, 28 Wake Forest L.Rev. 223, 261 (1993).
22
incarnations, the clarification has been adopted twice by the
House and four times by the Senate (including twice by the Senate
in the form of a freestanding bill). See 139 Cong. Rec. at S2150
(citing bills). This history strongly suggests that the
amendment remains unpassed only because the vagaries of the
parliamentary process are what they are. When, as now, the two
houses of Congress, in the wake of a series of judicial decisions
going mainly in one direction, have repeatedly signified that an
amendment is needed to clarify recently enacted legislation, it
seems reasonable to infer that the courts have failed to grasp
the enacting Congress's intent. In such circumstances, the case
for giving some modest weight to post-enactment history peaks.
F
At this point, we have marshalled the available
data.10 We have found neither of the contending readings to be
obviously correct on the statute's face, and we have deterrated
no direct evidence of congressional intent sufficient to capture
the flag. In the end, however, three considerations persuade us
that a broader interpretation of the SRR provision is more likely
10In the process, we have considered and rejected the
notion that the rule of lenity, a background principle that
properly comes into play when, at the end of a thorough inquiry,
the meaning of a criminal statute remains obscure, see Chapman,
111 S. Ct. at 1926, might be of help here in discerning
congressional intent. See, e.g., Koehler, 923 F.2d at 135
(arguing that the rule of lenity cuts in favor of a narrow
construction of the SRR provision). The problem lies in
determining whose ox may be gored. Depending on the facts of any
particular defendant's situation, a generous reading of the SRR
provision can produce either a harsher or a more lenient result
than a cramped reading will produce. Thus, we regard the
interpretive struggle over the SRR provision as lenity-neutral.
23
what Congress intended. First, a narrow rendering is
inharmonious with the statute as a whole. Second, in choosing
between two plausible readings, we hesitate to select the
alternative that in effect imputes to Congress a policy for which
no compelling rationale can be postulated (and that, in the
bargain, blindly treats a greater power as if it did not include
a lesser power). Third, given a statute of protracted
indeterminacy, we are inclined to favor the interpretation that
promotes continuity with traditional sentencing practice all
the more so since the preexisting practice was based in
significant part upon a similarly worded statute. For these
reasons, and despite our abiding respect for the courts that have
gone the other way, we hold that the district judge did not err
in concluding that he possessed the power to impose both a prison
term and a term of supervised release following revocation of
appellant's original supervision term.
V. APPLYING THE SRR PROVISION
Having determined that the court below correctly
grasped the essential meaning of the SRR provision, we find,
nonetheless, that it erred in fashioning appellant's sentence.
In this case, upon revocation of the original term of supervised
release, the SRR provision yields a maximum sentence length of
three years. See 18 U.S.C. 3583(e)(3). No more than two years
24
of that period can be devoted to incarceration.11 See id. The
key to these computations is that the combined limit of three
years matches the length of the original term of supervision and
the secondary limitation two years in prison matches the
statutory maximum allowable for revocation of supervised release
when the underlying offense is a Class D felony. See id. In
light of these benchmarks, it is apparent that the sentence
imposed here exceeded the maximum sentence authorized by law.
Specifically, upon revocation of supervised release, the
imposition of a two-year prison term followed by a fresh three-
year supervision term is unlawful.
Although O'Neil's sentence must be vacated, at least in
part, the contours of the appropriate remedy remain tenebrous.
On one hand, the government tells us that we should in effect lop
11We are aware that the Sentencing Commission's policy
statement contemplates that the new term of imprisonment will be
"less than" the maximum term of imprisonment imposable upon
revocation for each class of offense, U.S.S.G. 7B1.3(g)(2) p.s.,
but we use round numbers for simplicity's sake. Moreover,
although a policy statement ordinarily "is an authoritative guide
to the meaning of the applicable guideline," Williams v. United
States, 112 S. Ct. 1112, 1119 (1992), the policy statements of
Chapter 7 are unaccompanied by guidelines, and are prefaced by a
special discussion making manifest their tentative nature, see
U.S.S.G. Ch.7, Pt.A, intro. comment. Hence, we today join six
other circuits in recognizing Chapter 7 policy statements as
advisory rather than mandatory. See United States v. Thompson,
976 F.2d 1380, 1381 (11th Cir. 1992); United States v. Bermudez,
974 F.2d 12, 14 (2d Cir. 1992); United States v. Cohen, 965 F.2d
58, 59-61 (6th Cir. 1992); United States v. Lee, 957 F.2d 770,
773 (10th Cir. 1992); United States v. Blackston, 940 F.2d 877,
893 (3d Cir.), cert. denied, 112 S. Ct. 611 (1991); United States
v. Oliver, 931 F.2d 463, 465 (8th Cir. 1991). On remand, the
lower court must consider, but need not necessarily follow, the
Sentencing Commission's recommendations regarding post-revocation
sentencing.
25
off the last two years of the supervision term, thus bringing the
sentence into statutory alignment. On the other hand, appellant
urges us to vacate the whole sentence and remand for
resentencing, thus permitting the district court, armed with our
insights into the workings of the SRR provision, to rethink its
options. While there is precedent for each of these
alternatives, compare, e.g., United States v. Vasquez, 504 F.2d
555, 556 (5th Cir. 1974) (per curiam) (holding that the excessive
portion of a sentence may be trimmed and the remainder left
intact) with, e.g., United States v. Berkowitz, 429 F.2d 921, 928
(1st Cir. 1970) (vacating entire sentence and remanding for
resentencing), we believe that the latter option is preferable in
this case. We explain briefly.
Although subject to constitutional constraints,
statutory limitations, and, now, the guidelines, sentencing is,
by and large, within the province of the district court.
Sentences usually contain a variety of components, e.g., an
incarcerative component, a monetary component (say, a fine or
cost-of-confinement order), and a non-detentive, non-monetary
component (say, supervised release). These components often
interrelate. Where an appellate court unties the bundle and
decides that one component must be reconfigured, it may often be
better practice to enlist the district court to retrofit the
package. So it is here. We think that the district court, not
this court, is best equipped to gauge what the overall sentence
should be. See generally United States v. Pimienta-Redondo, 874
26
F.2d 9, 14 (1st Cir.) (en banc) (discussing resentencing in
multiple-count case after determination that the Double Jeopardy
Clause barred imposition of separate sentence on one of two
counts of conviction), cert. denied, 439 U.S. 890 (1989).
VI CONCLUSION
We need go no further. We hold that the SRR provision,
18 U.S.C. 3583(e)(3), permits a district court, upon revocation
of a term of supervised release, to impose a prison sentence or a
sentence combining incarceration with a further term of
supervised release, so long as (1) the incarcerative portion of
the sentence does not exceed the time limit specified in the SRR
provision itself, and (2) the combined length of the new prison
sentence cum supervision term does not exceed the duration of the
original term of supervised release. Since the district court
overstepped these boundaries, we vacate appellant's sentence and
remand for resentencing.
It is so ordered.
27