[00:00:00] Speaker 01:
Case number 22-1318, United States of America versus James Little appellant.

[00:00:06] Speaker 01:
Mr. Carpenter for the appellant, Mr. Pierce for the appellant.

[00:00:10] Speaker 04:
Good morning, Mr. Carpenter.

[00:00:12] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
May it please the court, Josh Carpenter on behalf of James Little.

[00:00:17] Speaker 04:
Your Honor, we've reserved three minutes for rebuttal.

[00:00:20] Speaker 04:
Your Honor, the sentence imposed in this case for a petty offense consisting of a term of imprisonment followed by a separate term of probation.

[00:00:29] Speaker 04:
is historically unprecedented.

[00:00:31] Speaker 04:
The government has not identified any court that has imposed such a sentence before the January 6th prosecutions.

[00:00:38] Speaker 04:
The district court opinions in this case and others that have justified this novel outcome are flawed for three primary reasons.

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The first is that they rely on a mistaken belief that the defendant's interpretation of the statute would create surplus.

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The government has conceded on appeal that that rationale is mistaken.

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Second, the opinions below do not grapple with the contextual problems that the government's interpretation create, including the effective repeal of the 1987 amendment that prohibits supervised release for petty offenders.

[00:01:13] Speaker 04:
And third, these opinions step into a policy or legislative role by purporting to fill what they perceive as a gap in the statutory scheme.

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But to the extent that such a gap exists, it is Congress's

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and not the court, to fill that gap.

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And I'll start with the surplusage point.

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Judge Lamberth, in the opinion below, recognized that there were two ways to read the text of this publication, one corresponding to a last antecedent interpretation and the other to a series qualified.

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In choosing between those two interpretations, Judge Lamberth relied heavily on the idea that the last antecedent interpretation would create surplusage.

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by rendering the phrase that is not a petty offense meaningless and inoperative.

[00:02:01] Speaker 04:
That was an argument that the government made below.

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Judge Lambert adopted it.

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But now on appeal, the government recognizes that that was an error.

[00:02:10] Speaker 04:
Under either of these interpretations, the phrase that is not a petty offense does play a role.

[00:02:16] Speaker 04:
It changes the possible sentencing outcomes in cases that involve multiple petty offenses.

[00:02:21] Speaker 02:
So you can see that under your ruling, reading of the statute

[00:02:26] Speaker 02:
Um, the judge could impose a split sentence for conviction of multiple petty offense.

[00:02:35] Speaker 04:
Yes, one clarification to that.

[00:02:38] Speaker 04:
What can happen in a case that has, say, two petty offenses, for example, on one of the petty offenses, the court can impose imprisonment on the other offense.

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The court can impose probation.

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So it is not a split sentence in the sense that one of those counts in a multiple offense case can receive both imprisonment and probation.

[00:03:00] Speaker 04:
The split sentence or dual sentence or whatever you want to call it comes about because there are two offenses of conviction.

[00:03:07] Speaker 04:
And under A3, under either interpretation, it is permissible to impose imprisonment on one and probation on the other.

[00:03:16] Speaker 02:
You don't have anything in the legislative history that supports that reading.

[00:03:21] Speaker 04:
Yes, your honor.

[00:03:26] Speaker 04:
So when the 1994 amendment was passed, there is nothing, as far as I know, either way in legislative history that tells us what Congress is doing other than the words that it used.

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However, you do have the 1991 proposed legislation which purported to do exactly this, to allow imprisonment on one and probation on the other.

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Now, the government sort of makes a big deal of this idea that, well, that can't be the interpretation because it would make no sense for Congress to want to treat multiple petty offenses differently than a single petty offense.

[00:04:01] Speaker 04:
I would say, as an initial matter, I think there's all kinds of reasons Congress might want to do that.

[00:04:04] Speaker 04:
But more on point, the 1991 legislation shows us that at least the sponsors of that legislation thought it was a good idea as a matter of policy to treat single and multiple petty offenders differently.

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So I think that does support the idea that this language that was added a few years later in 1994 does support our reading.

[00:04:27] Speaker 02:
But nothing in the legislative history from 94 harkened back to 91, right?

[00:04:34] Speaker 02:
Correct.

[00:04:34] Speaker 04:
To my knowledge, the legislative history in 1994 is silent both ways.

[00:04:39] Speaker 04:
There's simply nothing other than the text

[00:04:42] Speaker 04:
that Congress passed.

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So we do not know if the change that happened from 1991, the proposed legislation to the 1994 enacted legislation was intended to be a substantive change

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or whether it was simply somebody in the committee drafting process saying, look, this is a 30-word sentence, 39-word sentence.

[00:05:00] Speaker 04:
I think we can accomplish the same thing by tacking on this six-word modifier at the end of A3, and look, I've saved 30 words.

[00:05:08] Speaker 04:
My law professor is going to be very happy that I've cut out all of these words.

[00:05:13] Speaker 04:
Not realizing that cutting it from 39 words down to six words created ambiguity about the meaning.

[00:05:21] Speaker 01:
Sir, Governor,

[00:05:24] Speaker 01:
One of the first things that you said is that this type of sentence is unprecedented and that it's not been imposed before January 6th, but the events of January 6th were themselves unprecedented, right?

[00:05:41] Speaker 01:
Sorry, I couldn't quite hear that last part.

[00:05:43] Speaker 01:
The events of January 6th were themselves unprecedented, right?

[00:05:47] Speaker 01:
That is certainly true, Your Honor.

[00:05:49] Speaker 04:
But I think that does not justify the courts in bending the rule of law.

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I think the rule of law, the statutes that are on the books exist in order to be followed.

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And if Congress determines in light of this unprecedented event that the sentences provided for in the current statutory scheme are inadequate, it is incumbent upon Congress to make that move.

[00:06:14] Speaker 01:
I understand.

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district court opinion.

[00:06:20] Speaker 01:
If I'm remembering it right there.

[00:06:23] Speaker 01:
At several, but I think it focused quite a bit on whether the same whether same is an adjective or now.

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And.

[00:06:32] Speaker 01:
Your your brief.

[00:06:37] Speaker 01:
Focuses on the dueling cannons.

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Question.

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Much more than it does on trying to argue that the same.

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is a now, same as a now.

[00:06:52] Speaker 01:
I guess I'm wondering kind of what your thinking was in emphasizing canons over emphasizing same is arguably now.

[00:07:08] Speaker 04:
Sure.

[00:07:08] Speaker 04:
So I think there are two things I would say there.

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The first is sort of the overarching point

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that I do not think the choice between the two interpretations here can be determined by looking at the text alone.

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I point to the Confederated Tribes case from the Supreme Court recently, which said the best, the most grammatical reading of a statute in isolation is not necessarily the correct reading in the broader context.

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That's why in our view, the choice between these two interpretations ultimately comes down

[00:07:38] Speaker 01:
not to canons or to grammar, but to the broader statutory.

[00:07:42] Speaker 01:
Let me be a little more precise.

[00:07:43] Speaker 01:
Do you think same as an adjective or do you think it's a noun?

[00:07:46] Speaker 04:
No, thank you.

[00:07:47] Speaker 04:
And that was the second point that I was to make was I think that it is an adjective and I disagree.

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The whole parts of speech analysis in Judge Lambert's opinion, I think is beside the point.

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I think it's a red herring.

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I think what it overlooks is the same thing that the government's integrated phrase argument in its briefing on appeal overlooks.

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which is what we have here is an elliptical construction where everyone who reads this, I think most reasonable readers who look at this understand the word offense is modifying, is present, it's just omitted.

[00:08:19] Speaker 04:
It's present as a matter of brand.

[00:08:21] Speaker 01:
So let me then ask one kind of, I guess, I don't know, practical question.

[00:08:27] Speaker 01:
I'm going to ask the government the same thing, but what's the difference between probation and supervised release, if any?

[00:08:35] Speaker 01:
there is needed right in a general sense, but practically speaking, there's not.

[00:08:39] Speaker 04:
Um, and if you the thing I would point to that I would highlight it because I don't think this passage was highlighted in the breeze.

[00:08:45] Speaker 04:
We both cited Senate report 98 to 25 from one page 89, which has some similar language.

[00:08:53] Speaker 04:
But at page 125, that same Senate report, the report says the term of supervised release, which was created by this legislation that hadn't existed before.

[00:09:00] Speaker 04:
is very similar to a term of probation, except that it follows a term of imprisonment.

[00:09:06] Speaker 04:
That is the one and only difference between probation and supervised release.

[00:09:11] Speaker 04:
One is supposed to be probation is supposed to be in lieu of supervised release.

[00:09:15] Speaker 04:
It's supposed to be a supplement to or in addition to following.

[00:09:18] Speaker 04:
That is the only practical difference.

[00:09:21] Speaker 04:
You see that we cited in the rec library some of the pieces of the statutory scheme that support that where probation officers, for example, are given identical duties of oversight

[00:09:29] Speaker 04:
with respect to probationers and supervised releases.

[00:09:33] Speaker 04:
So as practical matter, they are identical.

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And that is why the government's interpretation of A3 effectively nullifies the 1987 amendment to 3583B3, which adds the prohibition on imprisonment plus supervised release.

[00:09:49] Speaker 04:
for petty offenders it would simply make no sense for congress to have said in one provision for a petty offender you cannot give prison plus up to one year of community supervision but to say in a different provision but for petty offender you can give imprisonment plus up to five years of community supervision the reading of those two separate sets for divisions simply does not match under the government's interpretation how um

[00:10:17] Speaker 02:
How would it work if your client were to violate the conditions of probation and the government were to propose that his probation be revoked?

[00:10:35] Speaker 02:
What if any additional imprisonment would he face?

[00:10:40] Speaker 04:
Well, that depends upon whose interpretation of the statute of control.

[00:10:48] Speaker 04:
But let's assume he was just sentenced to probation and then he violated.

[00:10:52] Speaker 04:
Our view is that upon revocation, a defendant in that circumstance could receive imprisonment full stop, not imprisonment plus additional probation.

[00:11:00] Speaker 04:
Under the government's interpretation, if you look at, I believe it's 3565A2, which is the revocation provision, it says that a defendant whose probation is revoked is re-sentenced under subchapter A.

[00:11:14] Speaker 04:
That means, in our understanding of the statute, that all of the penalties authorized by subchapter A are available anew.

[00:11:21] Speaker 04:
So in our view, under the government's reading, if we violate, he could get two more months in imprisonment plus three more months of probation, and that cycle would continue in perpetuity.

[00:11:32] Speaker 02:
But that's not the way that it works even under supervised release, right?

[00:11:36] Speaker 02:
You can't serve a supervised release term beyond whatever the maximum is that is provided by statute.

[00:11:44] Speaker 04:
That's absolutely right.

[00:11:45] Speaker 04:
And it's precisely because Congress addressed this scenario in the supervised release provision.

[00:11:50] Speaker 04:
If you look at 3583H,

[00:11:52] Speaker 04:
It contains a specific provision that says, when there's a revocation, the amount of additional available supervision must be subtracted or must be reduced by the amount of time that the person has served in prison.

[00:12:07] Speaker 04:
In other words, Congress, in the supervised release provision, didn't rely on the general statutory maximum in 3583B, which says that for a class A felony, it's a max of five years.

[00:12:18] Speaker 04:
That's the corresponding provision in the probation section.

[00:12:22] Speaker 04:
Each of them have that statutory max provision.

[00:12:24] Speaker 04:
In supervised release, Congress did not rely on that maximum.

[00:12:28] Speaker 04:
It included the specific provision of section H that provides this limitation that prevents a never ending cycle of re-imprisonment and revocation.

[00:12:38] Speaker 04:
The fact that Congress did not include a similar safeguard in the probation revocation provision, we think is strong evidence that Congress did not intend for probation to work the way that the government would have it work in this case.

[00:12:53] Speaker 02:
I think Judge Rogers may have a question.

[00:12:55] Speaker 00:
Okay, you've covered it.

[00:12:58] Speaker 02:
Okay.

[00:13:00] Speaker 02:
So when looking at the text,

[00:13:10] Speaker 02:
Um, if your reading of the text is correct, then you still have all of these same problems that, um, you identify for someone who is convicted of multiple petty offenses and who gets a sentence of imprisonment on one and a sentence of probation on the other, right?

[00:13:40] Speaker 04:
You don't know.

[00:13:41] Speaker 04:
I'm so glad you asked that question because I don't think in rereading them that our briefs were clear on that point.

[00:13:46] Speaker 04:
So this never ending cycle under our interpretation is not possible in a multiple offense case because if we go back to how that works, so let's assume two offenses, the court imposes imprisonment on the first probation on the second.

[00:14:02] Speaker 04:
The defendant serves the term of imprisonment is released and begins serving the sentence of probation.

[00:14:08] Speaker 04:
that has completed the entirety of his sentence on count number one.

[00:14:13] Speaker 04:
He can be revoked on count number two.

[00:14:16] Speaker 04:
But at that point, the available sentences under our interpretation are either a continuation of probation under 3565A1,

[00:14:25] Speaker 04:
or revocation and imprisonment under a 2.

[00:14:30] Speaker 04:
But under our interpretation, revocation, the only thing available is imprisonment, full stop, not imprisonment, plus yet another term of probation.

[00:14:39] Speaker 04:
Because again, in a multiple offense case,

[00:14:43] Speaker 04:
The split sentence arises not because any one of those counts can receive both forms of punishment.

[00:14:51] Speaker 04:
It is because you have two separate offenses and each one of them can have a different type of punishment.

[00:14:59] Speaker 04:
So imprisonment on one, probation on the other.

[00:15:02] Speaker 04:
But the cycle ends after one replication in two events case.

[00:15:08] Speaker 04:
If there are other questions at the moment, I'm happy to answer them.

[00:15:11] Speaker 02:
Otherwise, I'll yield until rebuttal.

[00:15:13] Speaker 02:
Any other questions, Judge Rodgers?

[00:15:16] Speaker 00:
No, thank you.

[00:15:18] Speaker 02:
All right, we'll give you some time on rebuttal.

[00:15:20] Speaker 02:
We'll hear from the government.

[00:15:22] Speaker 03:
Mr. May it please the court James Pierce for the United States.

[00:15:32] Speaker 03:
The district court lawfully imposed a sentence that included a term of imprisonment followed by a term of probation.

[00:15:39] Speaker 03:
When Congress appended the words, quote, that is not a petty offense, unquote, we call the petty offense clause, to the end of section 3561A3, it empowered sentencing courts to impose the type of sentence that the district court imposed here.

[00:15:56] Speaker 03:
Even if that sentence were erroneous, however, any error would be harmless because the district court could have imposed essentially the same sentence under section 3563.

[00:16:05] Speaker 02:
How would it be essentially the same sentence if you say that it would be to be maybe weekends in jail up to, I guess, whatever it's 60 days?

[00:16:17] Speaker 03:
So sort of intermittent confinement, it would be intermittent confinement, I think, refers to the weekends and nights.

[00:16:25] Speaker 03:
What 3563 says is weekends nights or other intervals.

[00:16:29] Speaker 03:
I'm other time is not find in the statute.

[00:16:34] Speaker 03:
We think that the best reading that is probably up to about 14 days.

[00:16:37] Speaker 03:
So it is true that it would not be the 60 days continuously that the district court here imposed, but certainly that would readily encompass the 60 days, 35, 63 allows for actually all the way up to a year's worth of imprisonment during the first year of probation, which if you do the math would actually suggest that an interval of time theoretically.

[00:17:02] Speaker 03:
certainly at some tension with the legislative history.

[00:17:04] Speaker 03:
But the point for this case is that certainly that would encompass the 60 days that district were here.

[00:17:12] Speaker 02:
Um, now I'd like to go back, but what do you do with the fact that if under that construction, the sentence still would have been illegal in the sense that you're not contending that 60 days

[00:17:28] Speaker 02:
constitutes an interval of time within the meaning of that provision, right?

[00:17:34] Speaker 03:
So, you know, candidly, I think that's a tougher position.

[00:17:37] Speaker 03:
Obviously, we want to prevail on our top line position that, of course, this was fully statutorily permitted under 3561A3.

[00:17:43] Speaker 03:
I'm not going to fight too hard if the court concludes that wasn't a legal sentence.

[00:17:48] Speaker 02:
Well, I mean, I'm trying to understand, because ordinarily, then, we don't reach, you know, the merits of an argument if there's a meritorious, harmless error

[00:17:59] Speaker 02:
That's why I'm starting to see, is this a meritorious, harmless error argument or not?

[00:18:07] Speaker 03:
I think it would depend on interpreting intervals of time.

[00:18:10] Speaker 03:
And as I said, though there is no governing interpretation, either statutorily or under the case law, the court would have to read that that would permit a sentence up to 60 days.

[00:18:22] Speaker 03:
There is language in 3563 itself that would seem to suggest that, as I said, the fact that a full year's worth of probation could be imposed not here, of course, of imprisonment, rather, not here, because there's a statutory maximum in the petty offense of six months.

[00:18:38] Speaker 03:
So it is not obviously incorrect, though I do think there is some countervailing position in the legislative history.

[00:18:48] Speaker 03:
If this court were to disagree with our top line position and disagree that it was harmless, we would nonetheless ask for a remand where Judge Lamberth could then evaluate whether to either impose some sort of sentence under 3563 or impose a longer term of justice.

[00:19:10] Speaker 03:
With that, I'd like to return to the textual argument.

[00:19:13] Speaker 03:
I'm sorry, yes.

[00:19:13] Speaker 01:
Let me ask you the question that I asked opposing counsel.

[00:19:17] Speaker 01:
He said there's basically no difference between probation and supervised release.

[00:19:21] Speaker 01:
Is that right?

[00:19:22] Speaker 01:
I think that's basically right.

[00:19:24] Speaker 01:
The probation costs are about the same amount.

[00:19:25] Speaker 01:
They both allow for basically the same restrictions.

[00:19:28] Speaker 03:
Yes.

[00:19:29] Speaker 03:
I mean, of course, in any individual case, there'll be different conditions.

[00:19:31] Speaker 03:
And I think there are some conditions that may not apply to one or the other.

[00:19:35] Speaker 03:
But I think functionally, that's an area of common ground.

[00:19:38] Speaker 01:
Let me ask one other kind of question.

[00:19:40] Speaker 01:
actual background type question.

[00:19:42] Speaker 01:
The maximum amount of imprisonment for Class A misdemeanor, Class B, and Class C is I read 3559.

[00:19:54] Speaker 01:
Class A, up to a year.

[00:19:57] Speaker 01:
Class B, up to six months.

[00:19:59] Speaker 01:
Class C, up to 30 days.

[00:20:02] Speaker 01:
Maybe you don't have it memorized off the top of your head.

[00:20:05] Speaker 01:
Does that sound right?

[00:20:06] Speaker 03:
I believe that's right.

[00:20:07] Speaker 03:
And there's an infractum that's up to five days that says even underneath the class C. But I think that's correct.

[00:20:17] Speaker 03:
Thanks.

[00:20:17] Speaker 03:
So turning to the textual argument here, the district court correctly concluded that the petty offense clause governs

[00:20:27] Speaker 03:
the whole phrase, the same or a different offense.

[00:20:30] Speaker 03:
In so doing, the court concluded that the same was an adjective.

[00:20:35] Speaker 03:
I think I heard my friend on the other side agree with that determination here today.

[00:20:41] Speaker 03:
And that's a matter, I think, of just common sense.

[00:20:46] Speaker 03:
The same or a different offense was legislated initially when Congress passed the Sentencing Reform Act in 1984.

[00:20:54] Speaker 03:
It didn't change it in 1991 when they considered but ultimately declined to adopt a reading that I think the parties agree would unequivocally have supported the defendant's reading here, but instead added that is not a petty offense to the very end of 3561A3, didn't set it off with a comma, didn't use the word offense after the same.

[00:21:20] Speaker 03:
Even applying the last antecedent canon, if one gets beyond grammar and wants to get into a question of canons, it's not clear that that actually accomplishes what the defendant is hoping that it does.

[00:21:35] Speaker 03:
The canon would reach certainly offense, but that still leaves the broader question, well, what offense are we talking about?

[00:21:44] Speaker 03:
And the offense is the same or a different offense.

[00:21:48] Speaker 03:
It encompasses the entire phrase there.

[00:21:50] Speaker 03:
To read it the way the defendant would have the court read it, you have a different offense that is not a petty offense, and then you just have the word the same sitting out there.

[00:22:00] Speaker 03:
And yes, I suppose one could just write the word the same in, but another area of common ground, and I think this was the third point that my friend on the other side made instead of standing up, is

[00:22:11] Speaker 03:
It's not the bench's role, of course, to write in words that Congress has opted not to include.

[00:22:15] Speaker 03:
Congress could well have written the offense right after same.

[00:22:19] Speaker 03:
I think that would have made it a much closer argument.

[00:22:23] Speaker 03:
And it's potentially one that we would lose.

[00:22:25] Speaker 03:
But this court is interpreting the text that we actually have.

[00:22:28] Speaker 03:
And that is, in fact, one that would have the petty offense clause cover the full phrase, the full interpretation.

[00:22:36] Speaker 03:
I'd like to address the surplusage question.

[00:22:39] Speaker 03:
I know there weren't any questions or surplusage issue, but that was also one that my friend on the other side raised.

[00:22:45] Speaker 03:
That's a bit of a straw man here.

[00:22:47] Speaker 03:
Below what the defendant argued was asking Judge Lamberth to adopt the reading, the then reasoning of Judge Pollard-Vitelli in a case called Spencer.

[00:22:59] Speaker 03:
And in Spencer, the court had said, under no circumstances could a court

[00:23:04] Speaker 03:
sentencing court imposed a sentence that included both imprisonment and probation.

[00:23:10] Speaker 03:
And Judge Lamberth below, in dealing with that question, said, well, that would render the phrase, that is not a petty offense meeting.

[00:23:20] Speaker 03:
Clearly, it had some meaning.

[00:23:21] Speaker 03:
Congress added it, specifically added it in 1994.

[00:23:25] Speaker 03:
It had to have some function.

[00:23:27] Speaker 03:
And so Judge Lamberth said, at a minimum, it allows for,

[00:23:31] Speaker 03:
the imposition of, he doesn't say the minimum, but that it allows for the imposition of both probation and imprisonment on a single petty offense.

[00:23:41] Speaker 01:
Mr. Peters, it's not our job to try to read the mind of Congress, of course, but it is our job to try to look at the text in the broader context and see how different parts of a statutory scheme fit together.

[00:23:57] Speaker 01:
So I want you to have a chance to respond to

[00:24:01] Speaker 01:
What I think is one of the strongest contextual or structural arguments of Mr. Little, and that is, why would Congress have wanted a one-year term supervisor lease for Class A misdemeanor, but a five-year term probation for a petty offense?

[00:24:26] Speaker 01:
And as part of your answer,

[00:24:30] Speaker 01:
I hope you would factor in your answer to my first question, which is there's basically no difference between probation.

[00:24:38] Speaker 03:
So I agree.

[00:24:40] Speaker 03:
It is somewhat a peculiar way to solve the question of post imprisonment.

[00:24:46] Speaker 03:
for petty offense offenders.

[00:24:49] Speaker 03:
And again, I'm not blocking back.

[00:24:50] Speaker 03:
I don't think there's really a functional difference in petty offense, excuse me, between supervised release.

[00:24:56] Speaker 01:
But my question is not why would Congress have done probation for a petty offense and supervised release for a Class A misdemeanor.

[00:25:03] Speaker 01:
Fine.

[00:25:05] Speaker 01:
If they're about the same, it doesn't matter if one has one labor.

[00:25:09] Speaker 01:
My question is why one year for Class A, five years for a petty?

[00:25:15] Speaker 03:
So there is nothing in the legislative history to help answer that question one way or the other.

[00:25:23] Speaker 03:
I think the best answer or sort of a fair inference is that when Congress removed supervised release in 1987, it also made clear that the guidelines didn't cover petty offenses.

[00:25:37] Speaker 01:
This is in 3553B, and then the guidelines had a... Why is this a different scenario than

[00:25:47] Speaker 01:
degree murder, life.

[00:25:49] Speaker 01:
Sorry, I said it wrong.

[00:25:51] Speaker 01:
Max penalty for first degree murder, 20 years.

[00:25:54] Speaker 01:
Max penalty for second degree murder, life.

[00:25:57] Speaker 01:
That would be very off to write a sentencing scheme that way.

[00:26:02] Speaker 01:
20 years for first degree murder, life for second degree murder.

[00:26:05] Speaker 01:
Here, one year for Class A misdemeanor, five years for petty offense,

[00:26:11] Speaker 01:
It seems just as odd, right?

[00:26:13] Speaker 03:
Well, to be clear, and this gets back to your honors earlier, is the question or clarification.

[00:26:17] Speaker 03:
Certainly, this doesn't change the actual statutory term of imprisonment, which Congress and the courts in particular have said this is really what drives questions like the eligibility for a jury trial or something like that.

[00:26:30] Speaker 03:
Now, again, I don't actually have an answer.

[00:26:32] Speaker 03:
It is somewhat odd that Congress would do this, but Congress is fully empowered to do this.

[00:26:37] Speaker 03:
And for better or worse, it need not explain itself as to why it does that.

[00:26:41] Speaker 03:
But I think the other broader point here is one that Judge Wilkins' questions illustrate, which is that these same sorts of questions about the oddity or the anomaly of this arise just as readily in cases with more than one petty offense.

[00:26:54] Speaker 03:
And actually, I think that's a misreading.

[00:26:55] Speaker 03:
I think it could be a petty offense and any other offense, not even a petty offense, where you've got imprisonment on the petty offense and then probation on either the petty offense or potentially on the petty offense.

[00:27:07] Speaker 01:
Maybe the answer to

[00:27:11] Speaker 01:
My question about the oddity, maybe not, is you think of the prison term plus, I'm just going to call it probation, but it could be super-vigilist.

[00:27:22] Speaker 01:
You think of that as like, how severe is it in combination?

[00:27:26] Speaker 01:
And maybe, you know, for every day in prison, it has a severity level of, let's say, one.

[00:27:35] Speaker 01:
And for every day of probation, it has a severity level of, let's say, one, one thousand.

[00:27:41] Speaker 01:
And so if you combine prison plus the year probation supervised release for Class A, it comes out to severity level of, I don't know what the math is, but let's say 400, 365 days plus.

[00:27:56] Speaker 01:
And if you do that for petty offense, it comes out to severity level of like 200, because prison time is so much less that even five years of probation doesn't get you up to a severity level of 200.

[00:28:10] Speaker 01:
possible?

[00:28:11] Speaker 03:
What do you think?

[00:28:11] Speaker 03:
I mean, that's that's possible.

[00:28:13] Speaker 03:
Again, candidly, there's there isn't anything in the legislative history to kind of kind of bear that out.

[00:28:17] Speaker 03:
I would add, though, that even with a class A misdemeanor, for example, Congress could, in fact, impose a sentence that is similar to and certainly more severe as opposed as far as prison time is concerned.

[00:28:29] Speaker 03:
But kind of back to the question, the discussion of 3563, a court could impose a

[00:28:37] Speaker 03:
full probation of the same number of years and an amount in prison that actually got up to a year, it's unclear, but certainly more than 60 days and more than six months, albeit likely in intervals kind of spaced out over the course of the year.

[00:28:58] Speaker 02:
So before the 1994 amendment, the way that the statute read is that it ended with the word

[00:29:05] Speaker 02:
well after for the same or a different offense.

[00:29:08] Speaker 02:
And then there was a period, right?

[00:29:10] Speaker 02:
Correct.

[00:29:11] Speaker 02:
And so, um, in your mind, um, then the interpretation of 3561 a three at that time was what, what did, what work did that particular, um, uh, provision do?

[00:29:32] Speaker 03:
That provision precluded any imposition of a term when someone is sentenced at the same time for one offense or multiple offenses for a sentence that included both imprisonment and probation with the caveat unless the imprisonment was a condition of probation under 3563.

[00:29:55] Speaker 03:
I think it was B11 at the time.

[00:29:59] Speaker 02:
So just to clarify,

[00:30:03] Speaker 02:
Um, the you believe that prior to 1994 you could not impose a sentence of probation if there was also a sentence of imprisonment or any count that was being sentenced at that same time, except for the, um, um, circumstance where imprisonment could be, um,

[00:30:33] Speaker 02:
Um, made a condition of probation.

[00:30:40] Speaker 02:
Is that what you're saying?

[00:30:41] Speaker 03:
That's right.

[00:30:41] Speaker 03:
That's what I believe 3561 a three before 1994 did after 1994.

[00:30:49] Speaker ?:
Um,

[00:30:50] Speaker 03:
It allowed.

[00:30:52] Speaker 03:
It's certainly allowed for a split sentence.

[00:30:54] Speaker 03:
Of course, the dispute here, and this is an argument that the defendant raised for the first time on appeal was, well, it's only available in multiple petty offense cases.

[00:31:04] Speaker 03:
We think that the district court read it correctly.

[00:31:06] Speaker 03:
But you're not arguing forfeiture.

[00:31:09] Speaker 03:
You're not arguing that they forfeited that argument.

[00:31:11] Speaker 03:
No, we haven't.

[00:31:11] Speaker 03:
We haven't raised a forfeiture claim, a plain error.

[00:31:16] Speaker 02:
So let me just drill down here.

[00:31:21] Speaker 02:
way I read 35 61 a three prior to 1994 was that if you sentence someone to term of imprisonment, let's say there were recounts of any sort.

[00:31:37] Speaker 02:
They could be felonies, misdemeanors, petty offenses didn't matter.

[00:31:43] Speaker 02:
If you sentenced someone to a term of if you sentence them to a term of imprisonment on any one of those counts,

[00:31:51] Speaker 02:
you could not sentence them to a term of probation on any of the other counts or do any sort of split sentence, right?

[00:32:01] Speaker 03:
That's right.

[00:32:02] Speaker 03:
Again, the caveat that you could make, you could start with probation and do it.

[00:32:06] Speaker 02:
Yeah, but you could.

[00:32:07] Speaker 02:
If there's going to be a sentence of imprisonment, then probation is off the table or

[00:32:13] Speaker 02:
that count or any other count, right?

[00:32:16] Speaker 03:
Correct.

[00:32:16] Speaker 03:
And supervised release would sort of play the role of post-imprisonment supervision.

[00:32:22] Speaker 02:
But if you decided that you were going to sentence to probation on one or more of those counts, you couldn't do imprisonment unless it were a valid and legal condition of probation, right?

[00:32:39] Speaker 02:
That's right.

[00:32:39] Speaker 02:
Under 3563.

[00:32:40] Speaker 02:
That's prior.

[00:32:42] Speaker 02:
to 1994.

[00:32:46] Speaker 02:
So when Congress adds the phrase that is not a petty offense at the end, that's the phrase that we want to see what work does it do, right?

[00:33:02] Speaker 02:
That's really the operative thing that we should be laser focused on as opposed to necessarily fighting

[00:33:11] Speaker 02:
we're the same or a different offense.

[00:33:13] Speaker 02:
And that makes sense.

[00:33:15] Speaker 02:
Really look and see exactly what that is not a petty offense.

[00:33:21] Speaker 02:
What work that is doing first and foremost.

[00:33:25] Speaker 03:
I think that's right.

[00:33:26] Speaker 03:
And I think there's agreement that that carves out

[00:33:31] Speaker 03:
Petty offense pieces.

[00:33:32] Speaker 03:
The question is, what does a petty offense case mean?

[00:33:36] Speaker 03:
Is it a single one?

[00:33:37] Speaker 03:
Could it be a single one, or does it require it be one of multiple offenses?

[00:33:46] Speaker 02:
So I guess what I'm saying is that why wouldn't Congress, why isn't the best interpretation of this is that Congress would want

[00:34:00] Speaker 02:
A3 to basically work the same way as it did before.

[00:34:09] Speaker 02:
But to the extent that one of the offenses is not a petty offense, then I guess

[00:34:29] Speaker 02:
I guess what I'm saying is, why isn't this intended to just exclude any petty offenses from the prior treatment?

[00:34:41] Speaker 03:
We think that's exactly what it does.

[00:34:43] Speaker 03:
That's your argument.

[00:34:44] Speaker 03:
That is precisely our argument.

[00:34:46] Speaker 03:
And what I understand the defendants to say is, no, no, it has to be multiple petty offenses.

[00:34:53] Speaker 03:
no legislative history to back that up.

[00:34:56] Speaker 03:
I think no sound reason to understand why that would be the case.

[00:34:59] Speaker 03:
But it is our argument, and Judge Lamberth below, this is sort of the surplusage point made the same point.

[00:35:06] Speaker 03:
That is not a petty offense, it has to do some work.

[00:35:09] Speaker 03:
And in our view, it carves out a petty offense conviction, both a single one or potentially an instance where it's one among a number of offenses.

[00:35:19] Speaker 02:
What about this whole problem of

[00:35:24] Speaker 02:
you know, the never-ending cycle potentially of revocation and imprisonment, re-imprisonment, and re-imposition of probation, ad nauseum, and finitum.

[00:35:39] Speaker 03:
So a few comments about that.

[00:35:40] Speaker 03:
And certainly, as the Rees point out, this notion of a split sentence existed for some 25 years from the late 60s until the Sentencing Reform Act.

[00:35:49] Speaker 03:
And that kind of never-ending,

[00:35:52] Speaker 03:
revocation and re-imprisonment hypothetical was never borne out.

[00:35:57] Speaker 02:
Never borne out because something in the statutory scheme precluded it.

[00:36:06] Speaker 02:
Or just as a practical matter, judges didn't do that.

[00:36:09] Speaker 02:
So I think potentially both.

[00:36:12] Speaker 03:
It's hard to sort of answer a historical counterfactual.

[00:36:16] Speaker 03:
There was at the time something in the probation statute that didn't limit in the way that a similar safeguard exists in the supervised release.

[00:36:26] Speaker 03:
statute now.

[00:36:27] Speaker 03:
Admittedly, that doesn't still exist in the probation statute, but to the extent that's an issue.

[00:36:34] Speaker 03:
I mean, that's an independent concern, I think, with the probation statute.

[00:36:37] Speaker 03:
It's hard to see how that has relevance for interpreting the plain text of 3561A3.

[00:36:44] Speaker 03:
Again, the question there is what does that is not a petty offense, what work does it do?

[00:36:51] Speaker 03:
Sort of drilling down into

[00:36:54] Speaker 03:
potential flaw in the probation, you know, in revocation of probation, uh, is hardly something that moves the needle on the textual question that 3561 a three.

[00:37:05] Speaker 02:
So I guess your argument is, is that, you know, perhaps Congress didn't realize that they were creating that issue when they added that it's not a petty offense, but, um, but that doesn't mean that, um, um,

[00:37:23] Speaker 02:
I guess we shouldn't enforce Congress's intent here with this statute.

[00:37:27] Speaker 03:
That's right.

[00:37:28] Speaker 03:
It should have no bearing on the statutory interpretation question.

[00:37:32] Speaker 03:
I'm sure one could find anomalies in various respects.

[00:37:37] Speaker 03:
And so we don't think that that should have bearing on, as the district court concluded, a textual question that, in our view, is soundly decided by the text itself.

[00:37:54] Speaker 02:
Your friend on the other side admitted that they hadn't really spelled out in their briefing this argument about imprisonment on one count and probation on second count as being the way that the split sentence would be done.

[00:38:12] Speaker 02:
I guess I'm just trying to make sure I have your best response to that.

[00:38:20] Speaker 02:
Again, were you assuming, were you arguing?

[00:38:24] Speaker 02:
Are you any sort of forfeiture here at the podium?

[00:38:27] Speaker 02:
So what is your best response to that?

[00:38:30] Speaker 03:
Is it the best reading of the statute?

[00:38:35] Speaker 03:
So we don't disagree that a court could impose a sentence under the circumstance where a defendant is convicted of two petty offenses, or as I've said, I think in a colloquy with Judge Walker,

[00:38:47] Speaker 03:
petty offense and even a non petty offense.

[00:38:50] Speaker 03:
But there is nothing to suggest that Congress intended that to be the sole area in which that is not a petty offense.

[00:38:59] Speaker 03:
The petty offense clause does work.

[00:39:02] Speaker 03:
There is no sensible reason why that would Congress would have done that.

[00:39:07] Speaker 03:
I think the best

[00:39:08] Speaker 03:
sort of understanding is, as Judge Friedman laid out in Kaplinger, Congress realized the gap created when supervised release was taken off the table and filled that gap by allowing for probation in a petty offense case.

[00:39:25] Speaker 03:
So there's not dispute among the parties that it's available where there are multiple petty offenses.

[00:39:32] Speaker 03:
Nearly all of the problems and the sort of oddities that my friend on the other side flags, including the oddity of sort of the mismatch in a petty offense case having

[00:39:43] Speaker 03:
a seemingly more draconian penalty, would exist just as readily in their interpretation as it would in ours.

[00:39:52] Speaker 03:
And it's hard to see why Congress in an instance would, in a too petty offense case, would somehow think, oh, a split sentence is fine there, but not in a single petty offense case.

[00:40:07] Speaker 02:
Now, if I could just make one final point.

[00:40:09] Speaker 02:
Because it seems like before 1994,

[00:40:12] Speaker 02:
Congress was speaking to, we don't want split sentences where there is a single offense.

[00:40:21] Speaker 02:
Um, and that's why they say for the same or different offense, right?

[00:40:30] Speaker 02:
Uh, before 1994, they were saying we don't want probation and imprisonment or the same offense, which is kind of like a split sentence on

[00:40:41] Speaker 02:
one count case as we have here.

[00:40:45] Speaker 02:
And we don't want probation and imprisonment.

[00:40:49] Speaker 02:
Um, um, if you got multiple counts, we don't care what kind of offense it is.

[00:40:55] Speaker 02:
We just don't want, um, probation and imprisonment.

[00:40:59] Speaker 02:
Um, but then when they add that is not a petty offense, they're saying, okay, well, the exception is if

[00:41:11] Speaker 02:
One or more of the offenses is a petty offense.

[00:41:15] Speaker 02:
That's your interpretation.

[00:41:17] Speaker 02:
One or more.

[00:41:18] Speaker 03:
The same has to mean something.

[00:41:19] Speaker 03:
So either the same petty offense or a different offense.

[00:41:23] Speaker 03:
And so I think the same general rule remains in place.

[00:41:28] Speaker 03:
What the petty offense does is just carve out an exception for either single petty offenses we have here or petty offense and some other offense.

[00:41:40] Speaker 02:
Um, Judge Rogers, you have any questions?

[00:41:42] Speaker 00:
No, thank you so much, Judge Wilkins.

[00:41:46] Speaker 02:
All right here.

[00:41:47] Speaker 02:
Thank you.

[00:41:48] Speaker 02:
Um, thank you, Mr Pierce.

[00:41:50] Speaker 02:
Mr Carpenter will give you two minutes.

[00:41:58] Speaker 04:
Thank you, Your Honor.

[00:41:59] Speaker 04:
Judge Williams.

[00:41:59] Speaker 04:
I'll start with the question we just talked about.

[00:42:03] Speaker 04:
They think is, well, what does this 1994 amendment?

[00:42:06] Speaker 04:
What work does it do?

[00:42:08] Speaker 04:
And I think to analyze that, it's helpful to step back and look at the progression of the statutory history with respect to petty offenses.

[00:42:15] Speaker 04:
So up until 1984, the statutory scheme says no split sentence for any petty offense.

[00:42:21] Speaker 04:
The split sentence provision that existed at the time carved out petty offenses.

[00:42:26] Speaker 04:
So up until 1984, no matter if it was one petty offense or multiple, you could not have both imprisonment and a period of probation or supervision after.

[00:42:35] Speaker 04:
1984 amended that, allowed for one year of post-imprisonment supervision for petty offenses.

[00:42:42] Speaker 04:
That was on the books for three years, at which point Congress repealed it and went back for petty offenses to the rule that had been in place before 1984.

[00:42:51] Speaker 04:
So that beginning in 1987 as before 1984, no matter if it's one offense or multiple offenses, you cannot have an imprisonment plus probation for a petty offense.

[00:43:01] Speaker 04:
The question then is, when they amended in 1994,

[00:43:06] Speaker 04:
how big, that we agree they're creating an exception and now there are, there is at least some circumstance where this is permissive.

[00:43:13] Speaker 04:
Our view is that it makes sense to interpret it narrowly because if you interpret it broadly, you are effectively repealing the 1987 amendment which puts in the other than a petty offense exclusion in B3.

[00:43:27] Speaker 04:
If Congress intended to do that, they would have done that.

[00:43:30] Speaker 04:
They didn't do that, so we have to give in our view that language a different meaning than it was given before.

[00:43:43] Speaker 01:
I don't want to take the last 20 seconds of your rebuttal, but then I have a question when you're done.

[00:43:50] Speaker 04:
Oh, sure.

[00:43:51] Speaker 04:
So the other point I would make on rebuttal is with respect to the remedy in this case, we believe the correct remedy is a remand with instructions to strike the probationary term.

[00:44:02] Speaker 04:
The government now, for the first time an oral argument has made a request to remand for resentencing.

[00:44:07] Speaker 04:
Our argument would be twofold in that.

[00:44:09] Speaker 04:
First, that they did not make that request for resentencing in their briefing as an appropriate alternative remedy.

[00:44:14] Speaker 04:
So we think that is waived or forfeited under this court's case law.

[00:44:17] Speaker 04:
And the reason that doesn't make any sense anyway is that

[00:44:28] Speaker 04:
We do.

[00:44:29] Speaker 04:
It's on all fours.

[00:44:31] Speaker 04:
In that case, the sentence was the statute said a fine or imprisonment.

[00:44:37] Speaker 04:
the district court imposed a fine and imprisonment after the defendant paid the fine.

[00:44:43] Speaker 04:
The district court realizes error and sought to re sentence.

[00:44:46] Speaker 04:
And the Supreme Court said because he the defendant has already suffered one of the alternative punishments.

[00:44:52] Speaker 04:
It is beyond the power of the court to re sentence.

[00:44:54] Speaker 04:
So we don't think even if government had made a timely request for re sentencing as a remedy, that it would be appropriate under double jeopardy principles.

[00:45:03] Speaker 01:
Judge Walker have a question.

[00:45:05] Speaker 01:
Well, you mentioned implied repeal a moment ago, and you also hit this point pretty hard in your brief as well.

[00:45:15] Speaker 01:
But it's not an implied repeal if it's an expressed repeal.

[00:45:19] Speaker 01:
And the government's point is that this is an express change to the pre-94 regime.

[00:45:27] Speaker 04:
Sure, so I think the distinction, maybe we're understanding express and imply differently.

[00:45:32] Speaker 04:
I think it's not an express repeal because the words other than a petty offense remain in 3583B3 to this day.

[00:45:40] Speaker 04:
Congress has never passed a piece of legislation striking those words.

[00:45:44] Speaker 04:
So maybe it's not an implied repeal, but what it certainly is, is it's a creation of surpluses.

[00:45:50] Speaker 04:
It's rendering those words inoperative.

[00:45:52] Speaker 04:
They have no practical effect.

[00:45:54] Speaker 02:
It's rendering

[00:45:56] Speaker 02:
words that were in a prior statute in operative, not the words that are in the statute.

[00:46:04] Speaker 04:
That's exactly right.

[00:46:06] Speaker 04:
I point the court to Justice Gorsuch's language in epic systems, which says that courts have a duty to interpret the law as a harmonious whole, rather than allowing different provisions to be at war with each other.

[00:46:19] Speaker 04:
Our view is if you give K3 the interpretation that the government wants, it puts that provision at war with 3583B.

[00:46:34] Speaker 02:
But law means conflict, right?

[00:46:37] Speaker 04:
Yes.

[00:46:38] Speaker 04:
And yes, I agree with that.

[00:46:40] Speaker 04:
But whichever principle, I mean, I think that in our briefing, we describe it as all three.

[00:46:45] Speaker 04:
I do think there are arguments that all three are the appropriate.

[00:46:46] Speaker 04:
It seems to me a lot like implied repeal, because it is doing the exact same thing that repealing the language would have done.

[00:46:53] Speaker 04:
It seems to me a lot like surplusage, because all of a sudden that language has no effect or meaning.

[00:46:58] Speaker 04:
And it also seems to me like it's creating a war between provisions.

[00:47:01] Speaker 04:
Because the two things just can't stand together.

[00:47:04] Speaker 04:
It does not make sense to say you can't do one year afterwards of supervision, but you can do five years afterwards of supervision.

[00:47:11] Speaker 04:
That is just a nonsensical scheme.

[00:47:13] Speaker 04:
And I will credit my friend for admitting that this is peculiar, that this is odd.

[00:47:18] Speaker 01:
What you think of my kind of one day of imprisonment is worth a thousand days of supervised release in terms of severity.

[00:47:28] Speaker 04:
So I think that's interesting, but I think there is one part of the statutory scheme that it conflicts with.

[00:47:32] Speaker 04:
And that is if you look at the authorized terms of supervision, Congress isn't taking that view elsewhere, right?

[00:47:40] Speaker 04:
It is grading them in sort of a logical, graduated structure.

[00:47:43] Speaker 04:
So class A felonies authorize the most.

[00:47:46] Speaker 04:
Class C, it drops down.

[00:47:48] Speaker 04:
Class E, it drops down.

[00:47:49] Speaker 04:
Class A, it drops down.

[00:47:50] Speaker 04:
And then all of a sudden it jumps back up again under the government's interpretation.

[00:47:54] Speaker 04:
So it disrupts what is otherwise an orderly and logical statutory scheme.

[00:47:59] Speaker 04:
So our view is that rather than create these peculiarities, these oddities that my friend acknowledges exist under the government's reading of the statute, there is a perfectly sensible, perfectly textual reading of the statute available that avoids those problems.

[00:48:14] Speaker 04:
If that is a problem that Congress perceives going

[00:48:18] Speaker 04:
And as the government acknowledges, there are other options available for district court judges going forward.

[00:48:25] Speaker 04:
There is intermittent confinement.

[00:48:26] Speaker 04:
It is qualitatively less severe than the punishment that Mr. Little suffered, which is why we do not think this is a harmless error.

[00:48:34] Speaker 04:
But that option is available going forward for district court judges who want to ensure that there is probation in the future, but also want to provide for some degree of imprisonment.

[00:48:44] Speaker 04:
All right, thank you.

[00:48:45] Speaker 04:
We'll take the case under advice.