U.S. v. Harrell, 10–30176.

• Decision Date: 10 March 2011
• Docket Number: No. 10–30176.,10–30176.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Tia Latrice HARRELL, aka Tia Latrice Marr, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

637 F.3d 1008

11 Cal. Daily Op. Serv. 3282

2011 Daily Journal D.A.R. 4021

UNITED STATES of America, Plaintiff–Appellee,

v.Tia Latrice HARRELL, aka Tia Latrice Marr, Defendant–Appellant.

No. 10–30176.

United States Court of Appeals, Ninth Circuit.

Submitted March 10, 2011.*Filed March 17, 2011.

Jenny A. Durkan, United States Attorney, Western District of Washington, Vincent T. Lombardi II, Assistant United States Attorney, Seattle, WA, for plaintiff-appellee, United States of America.Terrence Kellogg, Seattle, WA, for defendant-appellant, Tia Latrice Harrell.Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:10–cr–00001–RAJ–1.Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

Tia Latrice Harrell raises a question of first impression in our Circuit: whether the “relating to” parentheticals within 18 U.S.C. § 1028A(c) limit the statute's otherwise clear articulation of which offenses may serve as predicates for application of § 1028A(a).¹ We publish to make clear that the “relating to” parentheticals do not limit the statute's effect, but serve simply as descriptive aids.

I

Harrell knew that she would never be approved to visit the Washington Corrections Center in Shelton, Washington. The center was trying to combat a growing problem with smuggled-in contraband, and Harrell had a lengthy criminal record and was under federal supervision at the time for bank fraud.² Her solution was simple: she assumed someone else's identity. In her written visitor's application, Harrell listed another individual's name, date of birth, and Social Security number, and, when she visited the facility, she presented a Washington state identification card in that same person's name.

Harrell's subterfuge did not last long, however. Corrections officials discovered that one of the facility's regular visitors was on active supervision—a fact not reflected in their records. By comparing photographs, they identified Harrell as that visitor, and, during Harrell's next visit, they confronted her about her subterfuge. Before she was arrested, Harrell admitted both her true identity and the fact that she had previously smuggled drugs into the facility.

On January 6, 2010, a grand jury returned a three-count indictment against Harrell, charging her with one count of Social Security number fraud, in violation of 42 U.S.C. § 408(a)(7)(B), one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A, and one count of possession of ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g). Harrell moved the district court to dismiss the § 1028A count for the same reasons she now raises on appeal. The district court denied her motion. On March 3, 2010, she pled guilty to the § 408(a)(7)(B) and § 1028A counts pursuant to the terms of a conditional plea agreement, reserving the right to appeal the district court's denial of her motion to dismiss the § 1028A count. In return, the Government dismissed the felon in possession charge. After being sentenced, Harrell timely filed her notice of appeal.

II

Harrell claims that § 1028A does not apply to her because the application of § 1028A(c)(11) is limited by the parenthetical that follows its enumeration of specific predicate offenses. She argues that the district court erred in not dismissing that count because her conviction for violating § 408(a)(7)(B) was not related to any attempt to “appl[y] for or obtain [ ] benefits” under the Social Security Act. We do not agree.

The parenthetical is clearly a descriptive term, not a limiting principle—a conclusion compelled by the fact that the interpretation urged by Harrell is not supported by the plain language of the statute and would render some of the statute's provisions meaningless.³ In so holding, we join with the First Circuit on this very point, United States v. Persichilli, 608 F.3d 34, 40–41 (1st Cir.2010), and adhere to the guidance of our prior decision in United States v. Galindo–Gallegos, 244 F.3d 728, 734 (9th Cir.2001) ( “Therefore, the straightforward reading of the parenthetical in the aggravated felony statute, ‘relating to alien smuggling,’ is that it merely describes and does not limit subsection (ii) ‘transporting’ offenses that may be a predicate for the aggravated felony.”), which concerned the import of identical “relating to” parenthetical language in 8 U.S.C. § 1101.

“As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (citation omitted). To aid our inquiry, we rely on our established rules of statutory construction, which instruct us to consider not only the words used in a particular section but also the statute as a whole. United States v. Cabaccang, 332 F.3d 622, 627 (9th Cir.2003) (en banc) (“[W]e must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” (alteration in original) (quoting Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991) (internal quotation marks omitted))).

Reviewing the language of subsection (c)(11) alone, we are hard-pressed to see how Congress might have intended the parenthetical to be accorded a limiting effect rather than a descriptive one. The phrase “relating to” does not itself imply exclusivity; rather, it plainly reflects a descriptive character. Persichilli, 608 F.3d at 40 (“But the [§ 1028A(c)(11) ] parenthetical is not phrased as a limitation: it merely provides a short-hand description of what several of the cited sections primarily cover.”); id. at 41 (“A mere summary description of a cross-reference, as in paragraph 11, ... cannot alter the unambiguous language that encompasses violations of section 208 without qualification.”); see also Galindo–Gallegos, 244 F.3d at 734.

In addition, as the Government contends in its briefs, to accord the parenthetical a limiting effect would render Congress' inclusion of 42 U.S.C. § 1307(b) a superfluous nullity as that section does not “relat[e] to false statements relating to programs under the Act ”—much less relate to “applying for or obtaining [Social Security] benefits.” Cf. § 1028A(c)(11). Instead, § 1307(b) criminalizes the making of false statements “with the intent to elicit information as to the social security account number, date of birth, employment, wages, or benefits of any individual” absent any regard for whether those statements relate to a Social Security program.⁴ Because we must “mak[e] every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous,” this fact alone would compel us to affirm the district court. Cabaccang, 332 F.3d at 627; see Galindo–Gallegos, 244 F.3d at 733 (“We reject Galindo–Gallegos['] reading[of the “relating to” clause], because it does not make sense of all the words of the statute.”).

We do not have to rely simply on that point, however, because there exists even more evidence refuting Harrell's claim. First, in § 1028A(c)(4), Congress provides a clear example of the language it uses when it intends a limiting clause. In contrast to the “relating to” parentheticals used in every one of the eleven enumerated subsections in this section, Congress provided:

(4) any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);

§ 1028A(c)(4) (emphasis added). As explained in Galindo–Gallegos, Congress' use of clear and distinct language when it intends a limiting effect underscores the descriptive character of the “relating to” parenthetical. 244 F.3d at 733–34.

Moreover, in other subsections, Congress used a perfectly clear approach to articulate a limiting rather than descriptive parenthetical. For example, in subsection J, there is a descriptive parenthetical using the same “relating to” form as the subsection N parenthetical at issue in this case, followed by a limiting parenthetical, “if it is a second or subsequent offense.” Subsection J can only be read as using the “relating to” language as descriptive and the “if” language as limiting, so there is no reason to doubt that Congress meant the “relating to” language in N to be descriptive as well. The function of the descriptive language appears to be to make reading the statute easier, so that one does not have to look up each citation to see what it is about, and to protect against scrivener's error in getting the statute from the drafting desk to the United States Code.

Id. at 734.

Second, as has been described, Congress' use of “relating to” parentheticals is widely understood to have a descriptive import. E.g., Persichilli, 608 F.3d at 40–41; Galindo–Gallegos, 244 F.3d at 733–34; United States v. Monjaras–Castaneda, 190 F.3d 326, 330 (5th Cir.1999) (“A parenthetical is, after all, a parenthetical, and it cannot be used to overcome the operative terms of the statute.” (quoting Cabell Huntington Hosp., Inc. v. Shalala, 101 F.3d 984, 990 (4th Cir.1996)) (internal quotation marks omitted)); United States v. Kassouf, 144 F.3d 952, 959–60 (6th Cir.1998) (finding “relating to” parenthetical in 26 U.S.C. § 6531(6) descriptive); United States v. Garner, 837 F.2d 1404, 1419 (7th Cir.1987) (“[W]hen read in context, the parenthetical ‘relating to bribery’ does not limit the incorporation of [18 U.S.C. § ] 201 [into § 1961(1)(B) ], but describes it.... As another court has said, the parentheticals are only ‘visual aids,’ designed to guide the reader through what would otherwise be a litany of numbers.” (internal quotation marks omitted)); United...