U.S. v. Head

• Decision Date: 15 January 2009
• Docket Number: No. 07-3619.,07-3619.
• Citation: 552 F.3d 640
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamile M. HEAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

552 F.3d 640

UNITED STATES of America, Plaintiff-Appellee, v. Jamile M. HEAD, Defendant-Appellant.

No. 07-3619.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 2008.

Decided January 15, 2009.

Angela Scott (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Stephen C. Williams (argued), Daniel G. Cronin, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Jamile Head claims the district court improperly sentenced him to serve six months in a "residential reentry center" as a discretionary 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 discretionary conditions. Therefore, we vacate Head's sentence 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 violated his release terms by (among other things) committing 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' imprisonment, 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 "residential 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 condition 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 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 "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 intermittent 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 subsection (b)(11) sets forth the condition of residency 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 government 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.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 condition of supervised release.

The government may be correct that Congress overlooked 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 statute'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 confinement programs as a discretionary condition of supervised 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, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting United States v. Granderson, 511 U.S. 39, 68, 114 S.Ct. 1259, 127 L.Ed.2d 611 (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 Oldsmobile, Inc., 362 F.3d 971, 976 (7th Cir.2004). The government 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 "absurdity" 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 surmount a formidable hurdle.... [W]e can apply the doctrine only when it would have been unthinkable 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 approach to statutory interpretation is hardly new. See Sturges v. Crowninshield, 4 Wheat. 122, 17 U.S. 122, 202-03, 4 L.Ed. 529 (1819) (Marshall, C.J.) (plain meaning of a provision should apply unless "the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind 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, 124 S.Ct. 1023.

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 defendant serve in a community confinement program as a discretionary condition of his supervised release. Gilpatrick, 548 F.3d 479, 482-84...