U.S. v. Thomas

• Decision Date: 23 May 1991
• Docket Number: No. 90-2183,90-2183
• Citation: 930 F.2d 526
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mattie Lou THOMAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 526

930 F.2d 526

UNITED STATES of America, Plaintiff-Appellant, v. Mattie Lou THOMAS, Defendant-Appellee.

No. 90-2183.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1991.

Decided April 11, 1991.

As Amended April 24, 1991.

Rehearing and Rehearing En Banc

Denied May 23, 1991.

Michael J. Shepard, and Barry R. Elden, Asst. U.S. Attys., Office of the United States Attorney, Criminal Receiving, Appellate Division, Chicago, Ill., for plaintiff-appellant.

Jeffrey B. Steinback, Leonard Goodman, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellee.

Before FLAUM, RIPPLE, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

After she was arrested for possessing almost 4 kilograms of heroin, Mattie Lou Thomas decided to cooperate with the continuing government investigation of her associates. Her assistance earned her a government recommendation, pursuant to 18 U.S.C. Sec. 3553(e), for a six-year sentence in lieu of the otherwise mandatory ten-year prison sentence applicable to her crime. See 21 U.S.C. Sec. 841(b)(1)(A). The district court, however, gave the prosecution more than it bargained for, sentencing Thomas to probation. The government appeals, asserting that 21 U.S.C. Sec. 841(b)(1)(A)(i) does not permit the district court to enter a sentence of probation and that the size of the district court's downward departure was unreasonable. We agree and remand the case to the district court for resentencing.

21 U.S.C. Sec. 841(b) provides that:

Except as otherwise provided in Section 845, 845a or 845b of this title, any person who violates subsection (a) of the section shall be sentenced as follows:

(1)(A) [for violations involving more than one kilogram of heroin] such person shall be sentenced to a term of imprisonment which may not be less than 10 years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.

As an initial matter, one might ask why the last sentence quoted above is necessary. If a ten-year sentence is mandatory, why was it necessary to affirmatively prohibit a sentence of probation? The simple answer is that the ten-year sentence is not mandatory. 18 U.S.C. Sec. 3553(e) gives the court, on motion of the government, limited authority to impose a sentence below a statutory minimum, "so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." The question we face is whether, for defendants convicted of violating 21 U.S.C. Sec. 841(a), 18 U.S.C. Sec. 3553(e) authorizes sentencing judges to reduce only the term of imprisonment or if it also permits the judge to impose probation in lieu of imprisonment.

The district court adopted the latter interpretation. The court reasoned that, in responding to the government's motion, it was sentencing Thomas "under" 18 U.S.C. Sec. 3553(e) rather than "under" 21 U.S.C. Sec. 841(b), making the probation prohibition of Sec. 841(b)(1)(A) inapplicable. The court concluded, therefore, that it was free to consider probation as a sentencing alternative. The court found United States v. Daiagi, 892 F.2d 31 (4th Cir.1989), analogous. In Daiagi, the court held that Sec. 3553(e) authorized the district court to sentence the defendant to probation even though 18 U.S.C. Sec. 3561(a)(1) provides that "[a] defendant who has been found guilty of an offense may be sentenced to a term of probation unless (1) the offense is a Class A or Class B felony...." Daiagi had been convicted of conspiring to distribute cocaine in violation of 21 U.S.C. Sec. 846. ¹ The Daiagi court reasoned that "there is no logical distinction ... between the mandatory minimum sentence and the prohibition against probation. The statute [Sec. 3553(e) ] was intended to free the sentencing judge to exercise, on motion of the Government, a prudent discretion by disregarding, where there has been substantial governmental assistance by the defendant, both the affirmative mandate to impose a minimum prison sentence and the negative mandate ... not to grant probation...." Id. at 33. The district court found that view persuasive, and concluded that Sec. 3553(e) authorized him to disregard both the ten-year statutory minimum sentence and the ban on probation contained in Sec. 841(b).

We must respectfully disagree. The district court's interpretation renders the probation ban meaningless. If departure pursuant to Sec. 3553(e) means that defendants are not sentenced "under" Sec. 841(b), there can never be occasion to invoke the probation ban. The presence of the probation ban in a section that imposes a statutory minimum means that there must be some other provision of law that permits the court to impose a sentence below that statutory minimum. That provision is Sec. 3553(e). Congress effectively eliminated probation by creating a statutory minimum; it needed the probation ban only to limit the discretion given to sentencing courts by Sec. 3553(e) to depart from the statutory minimum by eliminating probation as a sentencing option. As Thomas herself correctly notes, "all words in a statute must be interpreted so as to give them meaning and to avoid rendering any language surplusage." Appellee's Brief at 18; see also Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307-08, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). The parties debate the significance of the sparse record of legislative intent behind the probation bar, but we have little need to resort to legislative intent when the language of the statute is so plain. Notwithstanding any other provision of law, Sec. 841(b)(1)(A) forbids judges to sentence defendants convicted of violating Sec. 841(a) by distributing one kilogram or more of heroin, as Thomas did, to probation.

Daiagi is easily distinguished. The version of 21 U.S.C. Sec. 846 applicable in that case contained no language establishing a mandatory minimum term of imprisonment or specifically proscribing probation. The only probation bar applicable to Daiagi came from 18 U.S.C. Sec. 3561, a general provision proscribing probation for all Class A and B felonies. Section 3561 did not contain any language similar to the "notwithstanding any other provision of law" language contained in Sec. 841(b) (language that is now applicable to violations of Sec. 846 as well as Sec. 841(a), making Daiagi's continuing vitality suspect). ² The only statutory minimum faced by Daiagi, then, was the one-day minimum term of imprisonment implicit in the general probation ban of Sec. 3561. By its terms, Sec. 3553(e) trumps that mandatory minimum. The court held, therefore, that Sec. 3553(e) authorized the sentencing court to award probation to Daiagi. The court could not have held otherwise without rendering Sec. 3553(e) a nullity, a fact that shows that Daiagi is perfectly consistent with our own rationale in this case. Here, unlike in Daiagi, the district court faced a clause--"notwithstanding any other provision of law"--that made the probation bar trump Sec. 3553(e). That clause dictates our result, and distinguishes Thomas's case from Daiagi's.

Section 841(b), then, requires the district court to sentence Thomas to some period of confinement. As the district court observed, however, there is little substantive difference between a sentence of probation and a very short period of confinement; we therefore also address the government's claim that the extent of the district court's departure was unreasonable.

Section 3553(e) authorizes departures upon government motion "so as to reflect a defendant's substantial assistance [emphasis supplied] in the investigation or prosecution of another person who has committed an offense." This language clearly supports the government's view that only factors relating to a defendant's cooperation should influence the extent of a departure for providing substantial assistance under Sec. 3553(e). Reference to Sec. 5K1.1 of the sentencing guidelines further buttresses the government's reading. That policy statement contains a list of factors that the sentencing court may consider to arrive at "the appropriate reduction" when departing downward on the basis of substantial assistance rendered to the government. The list is not intended to be exhaustive, but each of the factors listed concerns circumstances bearing upon the significance of a defendant's cooperation, such as its utility, reliability, risk, and timeliness. Had the Sentencing Commission wished to permit courts to consider factors unrelated to the quality of the defendant's cooperation when departing because of that cooperation, it seems likely that it would have promulgated a list of examples encompassing factors unrelated to cooperation. Courts probably invoke interpretive maxims too often, but the principle of ejusdem generis seems to have such force in this case that we feel obliged to trot it out. "The purpose for defining the class by illustrative particularizations accompanied by a general catchall reference is to determine how extensively the act was intended or should reasonably be understood to apply." 2A C. SANDS, STATUTES AND STATUTORY CONSTRUCTION Sec. 47.18 at 177 (4th ed. 1984). We therefore conclude that Sec. 5K1.1 permits departure only on the basis of the quality of the assistance rendered.

The district court, Thomas concedes, based its sentence not only on her assistance, but also took her extremely burdensome family responsibilities into account. Each of Thomas's three adult children is mentally disabled. Two live with Thomas; one is institutionalized. Thomas is also the legal guardian of a four year-old grandson. She cares for her children alone; Thomas last saw her husband in 1984.

She maintains, however, that Sec. 1B1.4 of the guidelines authorized the court to factor her familial responsibilities into its departure calculus. Section 1B1.4 provides that "[i]n determining ... whether a...