United States v. Head, Jamile M. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3619
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMILE M. H EAD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30092—William D. Stiehl, Judge.
A RGUED JUNE 4, 2008—D ECIDED JANUARY 15, 2009
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Defendant Jamile Head claims
the district court improperly sentenced him to serve
six months in a “residential reentry center” as a discre-
tionary condition of his supervised release. We agree
that the district court exceeded its authority in issuing
this sentence because it disregarded the plain language
of 18 U.S.C. § 3583(d), which, at the time, specifically
omitted this condition from a list of permissible discre-
tionary conditions. Therefore, we vacate Head’s sentence
2 No. 07-3619
and remand for further proceedings consistent with
this opinion.
I. BACKGROUND
In 2004, Head pled guilty to possession of a firearm by
a felon. He was sentenced to 30 months’ imprisonment
followed by three years of supervised release. While
Head was on supervised release, the probation office
filed a petition to revoke it, alleging that Head had vio-
lated his release terms by (among other things) com-
mitting additional crimes and failing to file monthly
reports with the probation office. The district court
granted the petition and revoked Head’s supervised
release. It then sentenced him to 24 months’ imprison-
ment, followed by one year of supervised release.
The district court specified that the first six months of the
new supervised release term had to be served in a “resi-
dential reentry center.” Head objected to this condition
in his sentencing memorandum and at the sentencing
hearing. He raises the same argument on appeal.
II. ANALYSIS
The only issue for us to decide is whether the district
court had the authority to order, as a discretionary condi-
tion of supervised release, that Head serve time in a
residential reentry center after his release from prison. At
the time of Head’s sentencing, 18 U.S.C. § 3583(d) defined
the permissible discretionary conditions of supervised
No. 07-3619 3
release by incorporating by reference “any condition set
forth as a discretionary condition of probation in [18 U.S.C.
§] 3563(b)(1) through (b)(10) and (b)(12) through (b)(20),
and any other condition it considers to be appropriate.” 1
The parties agree that the residential reentry center in
which Head was sentenced to serve fell within the scope
of 18 U.S.C. § 3563(b)(11), which provides that a person
1
On October 13, 2008, after Head had been convicted and
sentenced, Congress amended the quoted passage in 18 U.S.C.
§ 3583(d) to read, “any condition set forth as a discretionary
condition of probation in section 3563(b). . . . “ (emphasis added).
As a result, the cross-reference in 18 U.S.C. § 3583(d) now
includes section 3563(b)(11) as a permissible condition of
supervised release. The imposition or revocation of supervised
release is part of the penalty for the original offense. Johnson
v. United States, 529 U.S. 694, 700-01 (2000). Under our reading
of the statute, the inclusion of section 3563(b)(11) broadens the
scope of defendants that are subject to some form of confine-
ment while on supervised release, and there is no indication
from Congress that this amendment applies retroactively. When
the statute is silent the presumption against retroactivity,
particularly in criminal cases, directs us to apply the amend-
ment prospectively. Id. at 701-02. Therefore, the new version of
section 3583(d) does not apply to Head’s appeal. Cf. United States
v. Mallon, 345 F.3d 943, 946-47 (7th Cir. 2003) (“Procedural
innovations that don’t tinker with substance . . . are compatible
with the ex post facto clause. Section 401(d) of the PROTECT
ACT is procedural only and thus must be used on this appeal.”)
(citation omitted). The relevant question before this court is
whether the pre-amendment version of section 3583(d) should
be construed to allow the imposition of section 3563(b)(11) as
a condition of supervised release.
4 No. 07-3619
“reside at, or participate in the program of, a community
corrections facility (including a facility maintained or
under contract to the Bureau of Prisons) for all or part of
the term of probation.” Although Congress later amended
section 3583(d) to include 3563(b)(11), we interpret the
statute as it existed when Head was sentenced.
The problem here is that section 3563(b)(11) is the one
discretionary condition of probation that section 3583(d)
did not incorporate by reference. This glaring omission
suggests the district court lacked the authority to order
that Head serve time in a residential reentry center as
part of his new term of supervised release.
The government tries to circumvent this problem by
pushing a nontextual interpretation of section 3583(d)
based on that provision’s history. The United States
Sentencing Commission Guidelines Manual (U.S.S.G.)
summarizes the historical backdrop for this argument:
Subsection(b)(11) of section 3563 of title 18, United
States Code, is explicitly excluded [from 18 U.S.C.
§ 3583(d)] as a condition of supervised release.
Before the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 [AEDPA], the
condition at 18 U.S.C. § 3563(b)(11) was intermit-
tent confinement. The Act deleted 18 U.S.C.
§ 3563(b)(2), authorizing the payment of a fine as
a condition of probation, and redesignated the
remaining conditions of probation set forth in 18
U.S.C. § 3563(b); intermittent confinement is
now set forth at subsection (b)(10), whereas sub-
section (b)(11) sets forth the condition of residency
No. 07-3619 5
at a community corrections facility. It would
appear that intermittent confinement now is
authorized as a condition of supervised release
and that community confinement now is not
authorized as a condition of supervised release.
However, there is some question as to whether
Congress intended this result. Although [AEDPA]
redesignated the remaining paragraphs of section
3563(b), it failed to make the corresponding re-
designations in 18 U.S.C. § 3583(d), regarding
discretionary conditions of supervised release.
U.S.S.G. §§ 5D1.3(e)(1)(note), 5F1.1 (2007). The govern-
ment claims that Congress made a “clerical error” by
failing to amend section 3583(d) when it amended section
3563(b) via AEDPA. It contends that we should correct
Congress’s oversight by interpreting the pre-amendment
version of section 3583(d) to allow district courts to
order defendants into community confinement as a
discretionary condition of supervised release.
This is an issue of first impression for us. The other
circuit courts that have already decided the issue have
adopted the government’s proposed interpretation. See
United States v. Gilpatrick, 548 F.3d 479, 482-84 (6th Cir.
2008); United States v. Del Barrio, 427 F.3d 280, 283 (5th Cir.
2005); United States v. D’Amario, 412 F.3d 253, 256-57
(1st Cir. 2005); United States v. Griner, 358 F.3d 979, 981-82
(8th Cir. 2004); United States v. Bahe, 201 F.3d 1124, 1136
(9th Cir. 2000); see also United States v. Arias, 153 Fed.
Appx. 577, 579 (11th Cir. 2005) (unpublished); United
States v. Huffman, 146 Fed. Appx. 939, 941-43 (10th Cir.
6 No. 07-3619
2005) (unpublished). In determining whether to follow
their lead, we begin with the plain meaning of section
3583(d) and then examine the rationale behind the
other circuits’ decisions.
A. The plain meaning of section 3583(d) provided
that a defendant cannot be placed in a community
confinement program as a discretionary condi-
tion of supervised release.
The government may be correct that Congress over-
looked section 3583(d) when it passed AEDPA. But that
doesn’t mean we can (or should) do anything about this
error. Judges do not read between the lines when a stat-
ute’s text is clear and its structure is coherent. See Jaskolski
v. Daniels, 427 F.3d 456, 461-64 (7th Cir. 2005). And there
was nothing unclear or incoherent about section 3583(d):
it specifically declined to provide courts with the
authority to order defendants into community confine-
ment programs as a discretionary condition of super-
vised release. Even if Congress made a mistake,“ ‘[i]t is
beyond our province to rescue Congress from its drafting
errors, and to provide for what we might think . . . is the
preferred result.’ ” Lamie v. United States Tr., 540 U.S. 526,
542 (2004) (quoting United States v. Granderson, 511 U.S.
39, 68 (1994) (concurring opinion)).
The government maintains, however, that reading the
pre-amendment version of section 3583(d) according to
its plain meaning would lead to an “absurd” result that
we must avoid. See Treadway v. Gateway Chevrolet Olds-
mobile, Inc., 362 F.3d 971, 976 (7th Cir. 2004). The gov-
No. 07-3619 7
ernment claims that because section 3583(d) allowed a
district court to order that a defendant live at a residential
facility that provides only drug and alcohol treatment
(per section 3563(b)(9)), it would be illogical not to read
the provision as also permitting a district court to order
that a defendant live at a residential facility that combines
drug and alcohol treatment with other programs, such
as employment (per section 3563(b)(11)).
The government misconstrues the scope of the “absur-
dity” exception. A statute might be absurd because it’s
linguistically incoherent; that’s something we can fix. But
when a statute’s language is clear, we won’t “correct” the
statute simply because it makes a bad substantive choice.
See Jaskolski, 427 F.3d at 462. The error must be much
more severe. As the Tenth Circuit has held:
One claiming that the plain, unequivocal language
of a statute produces an absurd result must sur-
mount a formidable hurdle. . . . [W]e can apply the
doctrine only when it would have been unthink-
able for Congress to have intended the result
commanded by the words of the statute—that is,
when the result would be so bizarre that Congress
could not have intended it . . . .
Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006)
(en banc) (internal quotation marks omitted). This ap-
proach to statutory interpretation is hardly new. See
Sturges v. Crowninshield, 17 U.S. 122, 202-03 (1819) (Mar-
shall, C.J.) (plain meaning of a provision should apply
unless “the absurdity and injustice of applying the pro-
vision to the case, would be so monstrous, that all man-
8 No. 07-3619
kind would, without hesitation, unite in rejecting the
application”).
The “error” that the government complains of here
was not a linguistic one. And applying the statute as
written does not lead to a result that is so bizarre or
shocking as to allow the district court the discretion to
fix it. So the only acceptable amendment to the statute
is the one that came from Congress, not from us. See Lamie,
540 U.S. at 542.
B. The other circuit courts’ interpretations of the
pre-amendment section 3583(d) do not persuade
us to deviate from the plain language of that
provision.
The First, Fifth, Sixth, Eighth, and Ninth Circuits have
issued published opinions adopting the government’s
argument that despite the plain language of section
3583(d), a district court could have ordered that a defen-
dant serve in a community confinement program as a
discretionary condition of his supervised release. Gilpatrick,
548 F.3d 479, 482-84; Del Barrio, 427 F.3d at 283; D’Amario,
412 F.3d at 256-57; Griner, 358 F.3d at 981-82; Bahe, 201
F.3d at 1136. The Tenth and Eleventh Circuits have
issued unpublished orders holding the same. Arias, 153
Fed. Appx. at 579; Huffman, 146 Fed. Appx. at 942-43.
The First, Fifth, Sixth, Tenth, and Eleventh Circuit
decisions rest entirely on the Ninth Circuit’s reasoning
in Bahe and the Eighth Circuit’s reasoning in Griner, so
we focus on those two cases. In Bahe, the Ninth Circuit
No. 07-3619 9
found that it could not rely on the plain language of sec-
tion 3583(d) because of an “internal ambiguity”:
Although the absence of a reference in § 3583(d) to
subsection (11) suggests that a district court lacks
the authority to impose this condition of super-
vised release, subsection (3) of § 3583(d) suggests
that a district court has such authority. Subsection
(3) states that a sentencing court may impose any
condition of supervised release that “is consistent
with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C.
§ 994(a) . . . .” The Sentencing Commission has
promulgated one policy statement and a corre-
sponding guideline that are “pertinent” to the
resolution of this case. Both expressly authorize
a district court to impose community confine-
ment as a condition of supervised release following
imprisonment . . . .
Hence, a district court’s authority under subsection
(3) of § 3583(d) appears to be at odds with its
authority under the portion of § 3583(d) that refers
to the subsections of § 3563(b). Because of this
internal inconsistency, the meaning of § 3583(d)
is unclear.
Bahe, 201 F.3d at 1128-30. The court used this “inconsis-
tency” as an opening to look beyond the text of section
3583(d) and adopt the interpretation that the govern-
ment proposes here. Id. at 1130-34.
We disagree with Bahe and conclude there was no such
inconsistency in section 3583(d). That provision stated
in relevant part:
10 No. 07-3619
The court may order, as a further condition of
supervised release, to the extent that such condi-
tion— . . .
(3) is consistent with any pertinent policy
statements issued by the Sentencing
Commission pursuant to 28 U.S.C.
§ 994(a);
any condition set forth as a discretionary condition
of probation in section 3563(b)(1) through (b)(10)
and (b)(12) through (b)(20) and any other condi-
tion it considers to be appropriate.
There can be an ambiguity only if one reads section
3583(d)(3) disjunctively with the discretionary conditions
of probation listed at the end of the section. But the statute
suggests these provisions should be read conjunctively. It
stated that a discretionary condition of supervised release
was permissible only if it was consistent with the Sentenc-
ing Commission’s policy statements and if was listed in 18
U.S.C. § 3563(b)(1)-(b)(10), (b)(12)-(b)(20) (or was captured
by the catch-all provision, “any other condition it con-
sider[ed] to be appropriate”).2 So even if the Sentencing
2
We do not believe (and the government does not contend) that
the catch-all provision recaptures the conduct covered by
section 3563(b)(11). Our conclusion stems from the famous
maxim, expressio unius est exclusio alterius (the expression of one
thing implies the exclusion of another). See, e.g., In re Globe Bldg.
Materials, Inc., 463 F.3d 631, 635 (7th Cir. 2006). That Congress
expressly excluded community confinement as a discretionary
(continued...)
No. 07-3619 11
Commission said that community confinement could be
imposed as a discretionary condition of supervised release,
the omission of section 3563(b)(11) prevented district
courts from imposing that condition. See United States v.
Mills, 186 F. Supp. 2d 965, 969 (E.D. Wis. 2002).
Moreover, the “inconsistency” that Bahe complained of
was eventually resolved, as the Sentencing Commission
later recognized that the text of section 3583(d) appeared to
exclude community confinement as a permissible discre-
tionary condition of supervised release. See U.S.S.G.
§§ 5D1.3(e)(1)(note), 5F1.1 (2007). So Bahe’s reason for
looking beyond section 3583(d)’s plain language is no
longer viable.
Turning to Griner, the Eighth Circuit characterized the
change to the probation statute as a “bookkeeping change”
and relied on a “well-settled canon” of statutory con-
struction:
Where one statute adopts the particular provi-
sions of another by a specific and descriptive
reference to the statute or provisions adopted, the
effect is the same as though the statute or provi-
sions adopted had been incorporated bodily into
the adopting statute. . . . Such adoption takes the
(...continued)
condition of supervised release implies that it did not want
courts to use the catch-all provision as an alternate basis
for imposing this condition. See United States v. Mills, 186
F. Supp. 2d 965, 970 (E.D. Wis. 2002). But see Bahe, 201 F.3d
at 1134-35.
12 No. 07-3619
statute as it exists at the time of adoption and does
not include subsequent additions or modifications
by the statute so taken unless it does so by express
intent. The weight of authority holds this rule . . .
respecting two separate acts applicable where, as
here, one section of a statute refers to an-
other section which alone is amended.
Griner, 358 F.3d at 982 (quoting Hassett v. Welch, 303
U.S. 303, 314 (1938) (internal quotation marks omitted)
(quoting 2 Sutherland on Statutory Construction, 787-88 (2d
ed. 1904) (footnotes omitted))); see also Kendall v. United
States ex rel. Stokes, 37 U.S. 524, 625 (1838) (noting that state
statutes that had adopted British statutes by reference were
“considered as referring to the law existing at the time
of adoption”). Applying this canon (we’ll refer to it as
the “cross-reference canon”), the Eighth Circuit con-
cluded that Ҥ 3583(d) included the language of subsec-
tion (b)(12) as it was then written to permit commu-
nity-corrections confinement.” Griner, 358 F.3d at 982.
Unlike Griner, however, we do not read Hassett as
creating a categorical rule that compels courts to always
read statutory cross-references as pointing to their
original targets. Indeed, such a rule would make little
sense, as “[w]riting a cross-reference rather than
repeating the text to be incorporated is useful precisely
because the target may be amended. A pointer permits the
effect of a change in one section to propagate to other,
related, sections without rewriting all of those related
sections.” Herrmann v. Cencom Cable Assocs., Inc., 978 F.2d
978, 983 (7th Cir. 1992).
No. 07-3619 13
Rather, Hassett turned to the cross-reference canon (and
two others) only after finding that the meaning of a tax
provision it was interpreting was “not so free from
doubt as to preclude inquiry concerning the legislative
purpose.” Hassett, 303 U.S. at 309. In particular, it was
not clear from the statutory text whether the tax provi-
sion applied retroactively and whether a cross-reference
to the provision referred to its original text or its later-
amended language. See id. at 308-14. The Court resorted
to canons only because the statute did not have a clear
meaning on its face. See id. at 313 (“Resort is had to
canons of construction as an aid in ascertaining the
intent of the legislature. It may occur that the intent is so
clear that no such resort should be indulged . . . .”). And
the Court has since reminded us that we should not
look beyond the language of a statute when its text is
plain and its mandate plausible. See, e.g., Dodd v. United
States, 545 U.S. 353, 359 (2005) (“[W]hen [a] statute’s
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—
is to enforce it according to its terms.” (internal quotation
marks omitted) (first alteration in original)); Salinas v.
United States, 522 U.S. 52, 57 (1997) (“Courts in applying
criminal laws generally must follow the plain and unam-
biguous meaning of the statutory language. Only the
most extraordinary showing of contrary intentions in
the legislative history will justify a departure from
that language.” (internal quotation marks omitted)).3
3
In the 70 years since Hassett was decided, the Supreme Court
has never cited Hassett for the cross-reference canon. Indeed, in
(continued...)
14 No. 07-3619
Moreover, in our sole decision where we cited Hassett
for the cross-reference canon, we proceeded in that
manner only because the statutory text was ambiguous.
See Dir., Office of Workers’ Compensation Programs v.
Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977). The case
involved a welter of cross-references in the Federal Coal
Mine Health and Safety Act. We analyzed Hassett as part
of a lengthy exposition on whether a certain cross-
reference was a “specific” reference—one that specifically
refers to a target statute and takes the target as
originally enacted—or a “general” reference—one that
refers to the law more generally and takes a target
statute as amended. Id. at 322-31; see also id. at 323 (noting
that “a facially specific legislative reference may, in
fact, constitute a general legislative reference”); Herrmann,
978 F.2d at 983 (noting that few cross-references are
specific). More importantly, we reached this issue
only after first concluding that the statutory text was
incoherent as written—for example, many of the relevant
(...continued)
a recent case, the Court did not apply a presumption that a
facially ambiguous self-reference within a Truth in Lending
Act provision pointed to the original, unamended version of
the provision. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U.S. 50, 60-64 (2004). Instead, the Court relied on “common
sense” to reach that conclusion. Id. at 63. So Koons raises some
question whether Hassett’s cross-reference canon retains
vitality today. But see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)
(“[I]t is this Court’s prerogative alone to overrule one of its
precedents.”).
No. 07-3619 15
cross-references pointed out into the ether. See Peabody
Coal, 554 F.2d at 320-21 (noting references to repealed
statutory provisions). We indicated that we would not
have turned to Hassett or other interpretive canons had
the text been clear. See id. at 321-22 (turning to “extrinsic
aids to statutory construction” because the court could
not “give full literal effect to the words appearing in
the original and in the amended incorporating provision”).
Similarly, other courts have turned to Hassett only after
first finding a facial defect with the cross-reference or
target statute being interpreted. See, e.g., United States v.
Oates, 427 F.3d 1086, 1089 (8th Cir. 2005) (correcting a
facially defective sentencing guideline provision that
referred to the wrong statutory subsection); Dir., Office of
Workers’ Compensation Programs v. E. Coal Corp., 561
F.2d 632, 635-41 (6th Cir. 1977) (following Peabody Coal
in a similar case); Dir., Office of Workers’ Compensation
Programs v. Ala. By-Products Corp., 560 F.2d 710, 715 (5th
Cir. 1977) (same); Krolick Contracting Co. v. Benefits Review
Bd., 558 F.2d 685, 686-88 (3d Cir. 1977) (same); cf. Carriers
Container Council, Inc. v. Mobile S.S. Assoc., Inc., 948
F.2d 1219, 1225 (11th Cir. 1991) (relying in part on
Hassett to reject a claim that a provision governing inter-
est implicitly incorporated a provision governing com-
pounding of interest); United States v. Smith, 683 F.2d
1236, 1238 n.8, 1239-40 (9th Cir. 1982) (en banc) (noting
that “the Youth Corrections Act does not mesh nicely
with the Probation Act” before concluding that a cross-
reference from the former statute to the latter was a
general reference (internal quotation marks omitted));
Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352 (5th
16 No. 07-3619
Cir. 1980) (adopting our rationale in Peabody Coal for a
different statutory scheme).
On occasion, we have also “corrected” cross-references
without citing Hassett. But these corrections have
generally been limited to technical repair work, such as
fixing facially defective cross-references that point to
unrelated provisions and render statutory schemes inco-
herent as written. See, e.g., United States v. Paul, 542 F.3d
596, 600 (7th Cir. 2008) (“Although the statute cross-
references section 3563(a)(4), that is a mistake, for the
intended cross-reference obviously is to section 3563(a)(5),
a parallel provision concerning mandatory drug testing
as a condition of probation.”). For example, we interpreted
an ERISA cross-reference as pointing to an unamended
target after we found that following the cross-reference
as written would lead to a “nonsensical” and “bizarre”
result. Herrmann, 978 F.2d at 981-82. And more recently,
we corrected Congress’s failure to update a statute that
criminalized improper recordkeeping after a provision
it referred to (section 355(j)) was renumbered and the
new section 355(k) did not refer to recordkeeping at all.
United States v. Bhutani, 266 F.3d 661, 665-68 (7th Cir.
2001). The Supreme Court has also indicated that courts
can turn to a statute’s history to identify the target of a
facially ambiguous reference. See Koons Buick Pontiac
GMC, Inc. v. Nigh, 543 U.S. 50, 60-64 (2004) (determining
that an ambiguous reference to “this subparagraph”
pointed to the subsection at the time of the statute’s
enactment).
So we can certainly correct cross-references when it’s
clear from the statutory text that there is some kind of
No. 07-3619 17
error. But that’s not what we have here. There was no
ambiguity about the object of our cross-reference (18
U.S.C. § 3583(d)). And there was no logical or linguistic
inconsistency between the cross-reference and the
target statute (18 U.S.C. § 3563(b)(1)-(10), (12)-(20)). Indeed,
the statutory scheme tracked perfectly well as written:
district courts could not sentence defendants to com-
munity confinement as a discretionary condition of their
supervised release. An odd result, perhaps, but hardly one
that is absurd. See Jaskolski, 427 F.3d at 462 (“Today the
anti-absurdity canon is linguistic rather than substan-
tive.”); see also United States v. Locke, 471 U.S. 84, 93-94
(1985) (interpreting a statute that required a filing to be
“prior to December 31 of each year” as setting a
December 30 deadline, even though Congress might
have intended an end-of-the-year deadline). Indeed, there
is no objective reason based on the statutory text to con-
clude that there was any “error” here. And we do not “fix”
what we cannot objectively identify as broken, because
“what judges deem a ‘correction’ or ‘fix’ is from another
perspective a deliberate interference with the legislative
power to choose what makes for a good rule.” Jaskolski,
427 F.3d at 462.4
Because sections 3583(d) and 3563(b) were unambiguous
and fit together coherently, our job is simply to follow
4
Even if there were any ambiguity in section 3583(d), we
would likely construe it in favor of the defendant per the rule
of lenity. See, e.g., United States v. Thompson, 484 F.3d 877, 881
(7th Cir. 2007).
18 No. 07-3619
the law as written. So we reject the government’s invita-
tion to circumvent the plain language of these statutes by
invoking the cross-reference canon. And we therefore
conclude that the district court exceeded its authority in
ordering that Head serve in a residential reentry
program during his new term of supervised release.
Because this decision creates a conflict among circuits,
it was circulated to all active judges under Circuit Rule
40(e). No judge favored a hearing en banc.
III. CONCLUSION
We V ACATE Head’s sentence and R EMAND for further
proceedings consistent with this opinion.
1-15-09