United States v. Joseph

• Decision Date: 29 May 2013
• Docket Number: No. 11–10492.,11–10492.
• Citation: 716 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dayven JOSEPH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

716 F.3d 1273

UNITED STATES of America, Plaintiff–Appellee,

v.Dayven JOSEPH, Defendant–Appellant.

No. 11–10492.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 17, 2012.

Filed May 29, 2013.

Alexander Silvert (argued), Assistant Federal Public Defender, Peter C. Wolff, Jr., Federal Public Defender, and Donna M. Gray, Assistant Federal Defender, Honolulu, Hawaii, for Defendant–Appellant.

Jonathan M.F. Loo (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney, Honolulu, Hawaii, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Hawaii, Leslie E. Kobayashi, District Judge, Presiding. D.C. No. 1:11–cr–00281–LEK–1.

Before: STEPHEN REINHARDT, SIDNEY R. THOMAS, and RICHARD A. PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

While incarcerated in a federal detention facility, Defendant Dayven Joseph obtained possession of marijuana on several occasions and provided some of that marijuana to another inmate. He was charged with two counts of possession of contraband and one count of providing contraband to an inmate, all in violation of 18 U.S.C. § 1791. Following his guilty plea, the district court imposed a 24–month sentence. Joseph timely appealed.

Joseph argues that the district court plainly erred in interpreting § 1791(c) to require consecutive sentences for convictions when they are based on two separate items of contraband. As we explain below, § 1791 prohibits the possession of contraband by federal prison inmates and the provision of contraband to them. The allegations in Counts 1 and 2 in the indictment involved a single item of marijuana that entered the prison in December 2010. Count 1 charged Joseph with possessing contraband marijuana while an inmate of a federal prison, and Count 2 charged him with providing that marijuana to another inmate. Count 4 charged Joseph with possessing a separate item of marijuana as a federal inmate in February 2011. At the sentencing hearing, the district court assumed that § 1791(c) required imposition of consecutive sentences on all three counts. Because we hold that § 1791(c) only requires consecutive sentences where there is more than one conviction resulting from a single item of a controlled substance, we reverse and remand for resentencing. ¹

FACTS AND PROCEDURAL HISTORY

At the time of the § 1791 violations, Joseph was serving a state sentence for sexual abuse at the Federal Detention Center Honolulu. In February 2011 Joseph was found with 2.916 grams of marijuana after a visit with family members. The FBI interviewed Joseph later that month, at which point Joseph admitted he had received about 1 gram of marijuana through a family member in December 2010 and provided it to another inmate.

The Government filed an indictment in March 2011 charging Joseph with three counts of violating 18 U.S.C. § 1791. Counts 1 and 2 related to a single item of marijuana that Joseph obtained and provided to a fellow inmate on or about December 12, 2010. Count 1 charged Joseph with possessing marijuana while an inmate of a federal prison in violation of § 1791(a)(2), and Count 2 charged him with providing that marijuana to another inmate in violation of § 1791(a)(1). Count 4 charged Joseph with possessing a separate item of marijuana as a federal inmate on or about February 13, 2011 in violation of § 1791(a)(2). Joseph pled guilty to all three counts without a plea agreement.

The probation office prepared a presentence report (“PSR”), which among other things summarized the court's sentencing options. As relevant here, the PSR noted that § 1791(c) “provides that, the term of imprisonment shall be imposed to run consecutive to any other sentence imposed for offenses involving a controlled substance.” ² (emphasis added). Joseph did not object to the PSR.

The district court conducted a sentencing hearing in September 2011. Relying on the information contained in the PSR, the court calculated the advisory Sentencing Guidelines range as 10–16 months “as to each of counts 1, 2, and 4 ... [which] must run consecutive to any other sentence.” After the Government, defense counsel and Joseph had an opportunity to address the court, the district court imposed a sentence of 10–months imprisonment as to each possession count (Counts 1 and 4) and 4–months imprisonment as to the provision count (Count 2), all to run consecutively for a total of 24 months; and 3 years of supervised release.³ Joseph's counsel did not object to the imposition of consecutive sentences.

ANALYSIS

I.

We review a sentence for both procedural error and substantive reasonableness. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). We review de novo the district court's interpretation of a statute. United States v. Wahid, 614 F.3d 1009, 1013 (9th Cir.2010). When a defendant does not object in the district court to the application of a statute to the facts of his case, we generally review the district court's application of the statute for “plain error.” See id.; see also United States v. Ayala–Nicanor, 659 F.3d 744, 746–47 (9th Cir.2011) (applying plain error when defendant failed to object to the district court's interpretation of the Sentencing Guidelines); United States v. Gonzalez–Aparicio, 663 F.3d 419, 426–28 (9th Cir.2011) (same); United States v. Guzman–Mata, 579 F.3d 1065, 1068 (9th Cir.2009) (same).⁴

“Plain error is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (citation, alteration and internal quotation marks omitted)); see also United States v. Olano, 507 U.S. 725, 733–35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “If these three conditions of the plain error test are met, an appellate court may exercise its discretion to notice a forfeited error that (4) ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Ameline, 409 F.3d at 1078 (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781 (citation and alteration omitted)).

II.

A.

First, we must determine de novo whether § 1791(c) requires consecutive sentences on all three counts of conviction. Section 1791 prohibits possessing or providing to an inmate contraband in a federal prison. Subsection 1791(a) defines the offenses of providing an inmate with contraband or being an inmate who attempts to possess or possesses contraband.⁵ Subsection 1791(b) sets forth the applicable punishments for violations of § 1791(a).⁶ The relevant portion of § 1791(c) then contemplates a scenario in which the violation of § 1791(a) involves “a controlled substance.” The full text of § 1791(c) provides:

(c) Consecutive punishment required in certain cases.—Any punishment imposed under subsection (b) for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance. Any punishment imposed under subsection (b) for a violation of this section by an inmate of a prison shall be consecutive to the sentence being served by such inmate at the time the inmate commits such violation.

18 U.S.C. § 1791(c) (emphasis added). At issue here is whether the phrase “such a controlled substance” refers to any controlled substance or the specific item of drugs that was involved in the violations of § 1791(a).

Joseph argues that “such a controlled substance” refers only to the specific item of drugs that provided the basis for the violation of § 1791(a). Under this interpretation, the statute would mandate consecutive sentences only when multiple sentences are imposed for convictions involving the same item of drugs—not for any conviction involving a different item of drugs. Here, Counts 1 and 2 involved possessing and providing the same item of drugs and therefore § 1791(c) would requireconsecutive sentences as to those counts. Count 4, however, involved a separate item of drugs and therefore § 1791(c) would not require a consecutive sentence as to that count.

In contrast, the Government argues that “such a controlled substance” in § 1791(c) refers to any controlled substance, irrespective of whether it was the specific item of drugs or even the same type of drug that formed the basis for the violation of § 1791(a). This reading of the statute would require consecutive sentences as to all three of Joseph's counts of conviction. It would also follow that these sentences for the § 1791(a) convictions would be required to run consecutively to any other sentence involving any controlled substance.

B.

Joseph's reading of § 1791(c) is the only plausible interpretation that comports with the text of the statute and congressional intent. “ ‘In interpreting a statute, we look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.’ ” United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir.1999) (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir.1996) (internal quotation marks and citation omitted)).

In crafting § 1791(c), Congress used “such” three times. First to modify “a controlled substance” and twice more in the remainder of the second provision. As used in the second provision of § 1791(c), “such inmate” refers to the specific inmate involved and “such violation” refers to the specific violation of § 1791(a). Each use of “such” means “the specific.” Applying the “presumption that a given term is used to mean the same thing throughout a statute,” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (citing Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932)), the first “such” refers to the specific item of drugs involved in the § 1791(a) violation.

Moreover,...