Lee v. United States

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CO-158
CRAIG A. LEE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-19185-12)
(Hon. Robert E. Morin, Trial Judge)
(Submitted October 6, 2020 Decided June 9, 2022)
Donald L. Dworsky for appellant.
Jessie K. Liu, United States Attorney at the time the brief was filed,
Elizabeth Trosman, Nicholas Coleman, C.B. Buente, and Elizabeth A. Aloi,
Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge,
and WASHINGTON, Senior Judge.
WASHINGTON, Senior Judge: Appellant, Craig A. Lee, appeals the
sentencing court’s denial of his motion to correct an illegal sentence under Super.
Ct. Crim. R. 35(a). Specifically, appellant argues that the sentencing judge
erroneously applied a sentencing enhancement for a single prior rape conviction
2
twice, resulting in an illegal sentence. As a matter of first impression, we reject
appellant’s challenge and affirm his sentence.
I. Background
Appellant was indicted on November 6, 2012, on one count of aggravated
first-degree child sexual abuse in violation of District of Columbia (“D.C.”) Code
§§ 22-3008-3020(a)(5)(2012 Repl & 2021 Supp.). The case proceeded to a jury
trial before the Honorable Robert E. Morin on February 11, 2016. Before trial,
appellant waived his right to a jury trial for his alleged “aggravating circumstance,”
namely, his prior conviction in 1997 for second-degree rape in Maryland.
At trial, the jury hung on appellant’s charge for first-degree child sexual
abuse, but found appellant guilty of the lesser-included charge of attempted first-
degree child sexual abuse on February 26, 2016. The same day, Judge Morin
found appellant guilty of an aggravating circumstance sentencing enhancement for
his 1997 rape conviction.
Prior to sentencing, the government filed a memorandum in aid of
sentencing disputing the sentencing calculations of the presentence report
3
submitted to the court. Specifically, the government disagreed with the
presentence report’s findings that the maximum prison sentence for appellant was
fifteen years, arguing instead that the maximum sentence was actually twenty-two
and one half years after applying a sentencing enhancement for his aggravating
circumstance. In addition to the memorandum, the government orally argued at
the sentencing hearing on June 17, 2016, that appellant’s maximum sentence was
twenty-two and one half years. Appellant’s counsel did not dispute the
government’s statements. The government recommended a sentence of twenty
years. After considering the government’s argument that appellant’s maximum
sentencing exposure was twenty-two and one half years of incarceration, Judge
Morin sentenced appellant to eighteen years’ incarceration followed by a lifetime
of supervised release. Judge Morin also ordered appellant to pay $100 to the crime
victim’s compensation fund.
Appellant appealed his substantive conviction to this court, which affirmed it
in a per curiam, unpublished opinion on August 20, 2018. See Lee v. United
States, No. 16-CF-611, Mem. Op. & J. (D.C. August 20, 2018).
A. Rule 35 Motion
4
On May 8, 2017, appellant filed a motion to correct an illegal sentence under
Super. Ct. Crim. R. 35(a). In his brief, appellant argued that Judge Morin erred in
applying D.C. Code §§ 22-3018 (attempted first-degree child sexual abuse), 22-
3008 (first-degree child sexual abuse), and 22-3020 (enhancement for aggravating
circumstances), by counting appellant’s aggravating circumstances enhancement
twice. Appellant argued that the “double counting” occurred when Judge Morin
first used it to calculate appellant’s base sentence under § 22-3018 (which required
an initial calculation under § 22-3008), and then counted it again to enhance the
base sentence under § 22-3020(a)(5).
At a hearing on October 26, 2017, appellant said that the disagreement
between him and the government was about “the order” in which the court should
“consider[] the statute[s].” Appellant argued that the sentencing court was
required to apply the aggravating circumstances statute before applying the attempt
statute, and that if the court did so, this would result in a fifteen-year maximum
sentence. Judge Morin found that appellant’s position was “counter-intuitive [to]
how aggravating circumstances statutes work,” because under appellant’s
approach, the enhancement would be applied to determine the maximum sentence
instead of enhancing the maximum sentence itself. Judge Morin also noted that, if
he understood appellant’s position, a sentencing court could “never aggravate an
5
attempted first degree sex offense.” Appellant agreed that his position was that the
maximum sentence was capped at fifteen years, regardless of any aggravating
circumstances. The government disagreed with appellant, arguing that the
maximum, un-aggravated penalty for first-degree child sexual abuse was thirty
years, that the penalty for attempted first-degree child sexual abuse was therefore
fifteen years, and that the aggravating circumstances enhancement must be applied
at the end, which resulted in a maximum sentence of twenty-two and one half
years.
On February 16, 2018, Judge Morin denied appellant’s motion.
Announcing his decision from the bench, Judge Morin explained that “[t]he plain
reading of the statutes is that the aggravating circumstance enhancement is
attached to a sentence that has been imposed or . . . calculated because it says one
and a half times the maximum penalty prescribed for the particular offense.”
Judge Morin then stated:
[t]he particular offense for which [appellant] was
sentenced was a conviction under D.C. Code § 22-3018.
That has a maximum penalty of 15 years. So, you
determine . . . the punishment for the offense of
attempted first degree sexual offense first. In this case, it
was 15 years. Then you determine the effect of the
enhancement for the aggravating circumstance and not
the other way around . . . D.C. Code § 22-3018 . . . was
not intended to limit the sentence of an attempt that had
6
associated with it aggravating circumstances as set forth
in D.C. Code § 22-3020. Obviously, the sentence that
[appellant] received was less than the maximum sentence
even under my reading of the statutes. It was within the
guidelines.
Judge Morin concluded that § 22-3018 was not “intended to limit the
sentence of an attempt that had associated with it aggravating circumstances as set
forth in D.C. Code § 22-3020.” Appellant timely appealed Judge Morin’s ruling.
II. Discussion
Appellant argues two points on appeal. First, he asserts that Judge Morin
erred by “double counting” appellant’s aggravating circumstances enhancement by
using it first to determine his base sentence under D.C. Code § 22-3008, and then
using it a second time to enhance the maximum sentence under § 22-3020.
Second, appellant argues that, even if Judge Morin’s interpretation is reasonable, §
22-3018 is capable of multiple interpretations and so the rule of lenity requires this
court to find in appellant’s favor. We disagree on both points and affirm the
sentence.
A. Sentencing Provisions
7
This appeal involves the interplay between three statutes. The first is D.C.
Code § 22-3018, which punishes attempts to commit sexual abuse by allowing the
judge to impose a sentence of up to half of the maximum sentence authorized for
the completed crime. 1 Thus, in order to calculate a sentence for attempted sexual
abuse, the sentencing court first references the maximum sentence for the
completed offense. In this case, that is D.C. Code § 22-3008, criminalizing first-
degree child sexual abuse. Section 22-3008 allows a maximum sentence of “any
term of years or for life,” but requires the court to “impose a prison sentence in
excess of 30 years only in accordance with § 22-3020 . . . .” 2
Finally, the third statute is § 22-3020, the “aggravating circumstances”
statute. 3 Section 22-3020 allows the sentencing court to enhance the sentence up
1
“Any person who attempts to commit an offense under this subchapter
shall be imprisoned for a term of years not to exceed 15 years where the maximum
prison term authorized for the offense is life or for not more than 1/2 of the
maximum prison sentence authorized for the offense . . . .” D.C. Code § 22-3018.
2
“Whoever, being at least 4 years older than a child, engages in a sexual act
with that child or causes that child to engage in a sexual act shall be imprisoned for
any term of years or for life . . . However, the court may impose a prison sentence
in excess of 30 years only in accordance with § 22-3020 . . . .” D.C. Code § 22-
3008.
3
See Jones v. United States, 828 A. 2d 169, 180 (D.C. 2003) (referring to §
22-3020, under its prior codification, as the “enhancement” statute).
8
to 150 percent of the maximum if the defendant is found guilty of any aggravating
factors set forth in the statute. 4
Under this rubric, it is undisputed that to sentence for attempted first-degree
child sexual abuse under § 22-3018, Judge Morin was required to first determine
what appellant’s maximum sentence would be for the completed offense under §
22-3008. It is at this step that the parties disagree: Appellant argues that the
second sentence in § 22-3008, allowing the sentencing court to “impose a prison
sentence in excess of 30 years only in accordance with § 22-3020,” means that for
the purposes of the calculating the sentence under § 22-3018, one must apply that
calculation to the maximum enhanced sentence that could be given for the
completed offense (here, § 22-3008), precluding later enhancement. The
government argues that § 22-3008 means that the maximum, unenhanced sentence
4
Any person who is found guilty of an offense under this subchapter may
receive a penalty up to 1 1/2 times the maximum penalty prescribed for the
particular offense, and may receive a sentence of more than 30 years up to, and
including life imprisonment without possibility of release for first degree sexual
abuse or first degree child sexual abuse, if any of the following aggravating
circumstances exists:
“(5) The defendant is or has been found guilty of
committing sex offenses against 2 or more victims,
whether in the same or other proceedings by a court of
the District of Columbia, any state, or the United States
or its territories . . . .” D.C. Code § 22-3020(a)(5).
9
for first-degree child sexual abuse is thirty years, that an attempt sentence is
therefore fifteen years, and that any aggravating circumstances enhance the
maximum sentence 150 percent at the end, leaving appellant with a maximum
sentencing exposure of twenty-two and one half years.
We agree with the sentencing court that the government’s approach is
correct. Because the statute is aimed at increasing the maximum sentence already
calculated, we hold that the enhancement statute is designed to be applied after the
maximum sentence is calculated. Perhaps more important, appellant’s proposed
order of application would prevent a sentencing court from ever enhancing a
sentence for attempted first-degree child sexual abuse, a result the D.C. Council
surely did not intend when it passed § 22-3020.
Resolving when the aggravating circumstances enhancement should be
applied to a conviction under § 22-3018 is a question of statutory interpretation
that we review de novo. See Rahman v. United States, 208 A.3d 734, 738 (D.C.
2019).
“The first step in statutory interpretation is to determine if the statute’s
‘language is plain and admits of no more than one meaning.’” Odumn v. United
10
States, 227 A.3d 1099, 1102 (D.C. 2020) (quoting Peoples Drug Stores, Inc. v.
District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). In Peoples, we
explained that “even where the words of a statute have a superficial clarity,” the
court may review the legislative intent behind the law to avoid “obvious injustice.”
Id., 470 A.2d at 754.
Here, § 22-3008’s directive to “impose a prison sentence in excess of 30
years only in accordance with § 22-3020” may have “superficial clarity,” but we
hold it would create an “obvious injustice” if it prevented the sentencing court
from applying an enhancement for aggravating circumstances. Therefore, we must
examine the legislative intent behind the sexual abuse statutes at issue here.
1. Legislative History of D.C. Code §§ 22-3008, 22-3018, and 22-3020.
All three of the statutes at issue were originally enacted under the Anti-
Sexual Abuse Act (“ASAA”) of 1994. See D.C. Council, Report on Bill 10-87
(Sep. 28, 1994). The Council of the District of Columbia (“D.C. Council” or
“Council”) stated that the purpose behind the ASAA was to “strengthen and reform
the existing laws against rape and sexual abuse in the District of Columbia.” Id. at
1. In line with this purpose, the Council designed the ASAA to “create a flexible
11
sentencing system and establish a series of aggravating circumstances that would
result in sentences more appropriately tailored to the nature of the particular
offense committed.” Id.As is evident from the first page of the committee report, a key part of the
D.C. Council’s intent for the ASAA was to increase sentences for those convicted
of aggravating circumstances. Id. When it was first passed, the ASAA permitted
sentences of fifteen years to life imprisonment for first-degree child sexual abuse.
Id. at 22. Notably, there was no original requirement that a court find any
aggravating circumstances to impose a sentence greater than thirty years of
incarceration. Id.In 2001, the D.C. Council passed the Sentencing Reform Amendment Act of
2000 (“SRAA”). See D.C. Council, Report on Bill 13-696 (May 25, 2000). This
law was a response to Congressional efforts to establish a determinate sentencing
scheme in the District of Columbia. Id. at 2. A major part of the SRAA’s purpose
was to provide clarity for “how offenses for which the maximum penalty was 15
years to life should be treated in a determinate sentencing system.” Id.12
Prior to passing the SRAA, the D.C. Council established the Advisory
Committee on Sentencing (the “Commission”), which made recommendations on
appropriate sentencing reforms for felonies with expansive sentencing possibilities.
Id. at 4. The Commission recommended that the Council place a cap of thirty
years’ incarceration for all crimes which then allowed sentences of between fifteen
years to life. Id. at 15. Noting that “30 years is a long time,” and “sentences for
non-murder offenses will not very often approach this length,” the Council
declined to adopt an “absolute cap of 30 years.” Id. After considering the
recommendations of the Commission, the Public Defender Service, and the United
States Attorney for the District of Columbia, the Council decided that “30 years
imprisonment…is the highest sentence that should be imposed – absent a finding
of aggravating circumstances.” Id. at 15-16. The SRAA thus modified § 22-3008
by adding the condition that “the court may impose a prison sentence in excess of
30 years only if the court finds an aggravating circumstance….” Id. at 40
(emphasis added).
These changes made by the SRAA do not show a legislative intent to
eliminate aggravating circumstances enhancements for attempted first-degree child
sexual abuse. Rather, the SRAA’s committee report shows exactly the opposite –
that the Council elevated the importance of aggravating circumstance
13
enhancements by requiring them in order to impose certain sentences. In fact, the
Council decided that only aggravating circumstances could increase a defendant’s
sentence beyond the 30-year “absolute cap” recommended to the Council. The
Council’s decision, supported by extensive background comments, makes clear
that it intended for aggravating circumstances to warrant significantly higher
prison sentences. All of this cuts against appellant’s argument that his sentence
was capped at fifteen years regardless of any aggravating circumstances.
Not only is the legislative intent in this case clear, but additionally,
“[c]ommon rules of statutory construction require us to avoid conclusions that
effectively read language out of a statute whenever a reasonable interpretation is
available that can give meaning to each word in the statute.” School St. Assocs.
Ltd. P’ship v. District of Columbia, 764 A.2d 798, 807 (D.C. 2001). In this case,
appellant’s approach would effectively nullify § 22-3020’s increased penalties for
aggravating circumstances. Because a reasonable interpretation in this case would
leave the increased penalties for aggravating circumstances intact, we must follow
that interpretation.
Against this backdrop, we find appellant’s reading of D.C. Code §§ 22-3008,
22-3018, and 22-3020 untenable as it would render the finding of any aggravating
14
circumstances irrelevant to sentence attempted first-degree child sexual abuse.
Such a result would be contrary to the D.C. Council’s intended result and must be
rejected. Additionally, because we “avoid conclusions that effectively read
language out of a statute,” we must reject appellant’s approach and hold that the
enhancement statute is properly applied after the maximum sentence is calculated
under § 22-3008.
Therefore, because aggravating circumstances serve to increase appellant’s
sentencing exposure, Judge Morin correctly found that under § 22-3008,
appellant’s maximum, unenhanced sentence for first-degree child sexual abuse was
thirty years; appellant’s maximum, unenhanced sentence for attempted first-degree
child sexual abuse was therefore fifteen years; and that appellant’s stipulated
aggravating circumstance conviction was then used to enhance the sentence 150
percent; leaving appellant with a maximum possible sentence of twenty-two and
one half years.
B. The Rule of Lenity
Appellant further argues that even if this court disagrees with his order of
reading the sentencing statutes, the rule of lenity requires that this court resolve
15
any ambiguities in his favor. See Henson v. United States, 399 A.2d 16, 21 (D.C.
1979). Finding no genuine doubt or ambiguity about the Council’s intent, we
disagree with appellant.
The rule of lenity is only used to resolve ambiguity in penal statutes. See
Holloway v. United States, 951 A.2d 59, 65 (D.C. 2008). “The rule … can tip the
balance in favor of criminal defendants only where, exclusive of the rule, a penal
statute’s language, structure, purpose and legislative history leave its meaning
genuinely in doubt.” United States Parole Comm’n v. Noble, 693 A.2d 1084,
1103-4 (D.C. 1997) (internal citations omitted). Importantly, the rule “is a
secondary canon of construction, and is to be invoked only where the statutory
language, structure, purpose, and history leave the intent of the legislature in
genuine doubt.” Holloway, 951 A.2d at 65 (internal citations omitted). In recent
Supreme Court concurrence, Justice Kavanaugh explained that before applying the
rule, courts must first use “all of the traditional tools of statutory interpretation.”
Shular v. United States, 140 S. Ct. 779, 789 (2020). Only then, if the statute
remains “grievously ambiguous [such] that the court can make no more than a
guess as to what the statute means,” will the rule of lenity apply. Id.16
In this case, we do not find that § 22-3008’s “structure, purpose, and history
leave the intent of the [Council] in genuine doubt.” Holloway, 951 A.2d at 65. We
find that the intent of the D.C. Council was clear – to enhance penalties for child
sexual abuse when the defendant was also found guilty of aggravating
circumstances. Because the rule of lenity applies only when courts “can make no
more than a guess as to what the statute means,” Shular, 140 S. Ct. at 789, it is not
applicable in this case.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s denial of appellant’s
motion to correct an illegal sentence under Superior Court Criminal Rule 35(a).
The judgment of the sentencing court is hereby,
Affirmed.