Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner v. RALPH STUART GRANDERSON, JR.

No. 92-1662

January 10, 1994

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

THOMAS G. HUNGAR, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

GREGORY S. SMITH, ESQ., Atlanta, Georgia; on behalf of the Respondent.

PROCEEDINGS

10:02 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in Number 92-1662, United States against Granderson.

Mr. Hungar.

ORAL ARGUMENT OF THOMAS G. HUNGAR ON BEHALF OF THE PETITIONER

MR. HUNGAR: Thank you, Mr. Chief Justice, and may it please the Court:

Respondent was convicted of a felony that carries a maximum sentence of 5 years in prison. Under the Sentencing Guidelines, the presumptive imprisonment range was zero to 6 months. Instead of sending respondent to prison, the district court imposed a sentence of 60 months probation.

Shortly after he began serving that sentence, respondent tested positive for cocaine, and the district court revoked his probation and sentenced him to 20 months in prison. The court imposed that sentence under 18 U.S.C. section 3565(a), which provides that when a defendant possesses illegal drugs while on probation, the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.

The court of appeals reversed, holding that the phrase "original sentence" refers to the presumptive range of imprisonment that could have been imposed under the guidelines rather than the sentence of probation that was actually imposed. We submit that the court of appeals erred in reaching that conclusion.

Our argument has two parts. First, the interpretation adopted by the court of appeals and urged by respondent is flatly inconsistent with the plain language of the statute and must be rejected. Second, once respondent's interpretation has been rejected, there are only two suggested ways to read the statute, and of those, only our interpretation is consistent with the statutory structure, context, and purpose.

Turning to the first point, our principal disagreement with respondent concerns the plain meaning of the phrase, "original sentence." In our view, under either the dictionary definition, or the ordinary, common sense understanding of that phrase, it has only one possible meaning in the context of Federal sentencing law. It means the initial judgment of the court specifying the punishment to be imposed on a convicted criminal.

QUESTION: If that's the case, then you're arguing for a sentence of probation all over again, only one-third of -- with a one-third minimum of the original. I mean, if plain meaning is good, you've got to take plain meaning all the way.

MR. HUNGAR: With respect, Justice Souter, we don't agree with that. We certainly agree that we have to take plain meaning all the way, but the fact that "original sentence" means the sentence of probation that was imposed in this case does not mean that the defendant here had to be sentenced to a new sentence of probation, and there are two reasons why that is so.

We agree that the phrase, "one-third of the original sentence," if considered in isolation, has two possible meanings. It could refer to the length of the original sentence, in this case 20 months, or to the length and the type of the original sentence, in this case 20 months of probation, and if that were the only thing we had to go on, the answer you suggest would be the only one possible under the Rule of Lenity, but we have other guides to congressional intent here. First, and most important, is the context in which that provision, one-third of the original sentence, rests.

In section 3565(a), Congress required the court to revoke the sentence of probation before resentencing the defendant. The word "revoke" is a term of art in Federal sentencing law in the context of probation or other forms of conditional release.

QUESTION: Do you agree that this is a rather poorly drafted statute?

MR. HUNGAR: We do agree with that, Justice Blackmun. If Congress had more clearly expressed its intention, then obviously we wouldn't be here, but we don't believe the statute is so poorly drafted that we can't discern, by applying normal rules of statutory construction, the meaning that Congress in fact intended.

QUESTION: Mr. Hungar, following up on Justice Souter's question, I suppose at the time the statute was enacted there might well have been people still incarcerated who were sentenced to a term of imprisonment followed by a term of probation, and supposing someone was in jail on a 15-year sentence, 10 years jail imprisonment plus 5 years probation, and that had not expired at the time the statute was enacted, and that person had his probation revoked in the third year of the probation period, what would the appropriate sentence be there?

MR. HUNGAR: Well, as I understand the preexisting sentencing scheme, Your Honor, that would not be a possible sentence, because the way probation formerly worked was that it was an alternative to imprisonment. A judge would either impose a sentence of imprisonment, and then suspend the execution --

QUESTION: Well, that's true now, but was that always true?

MR. HUNGAR: I don't know whether it was always true, but certainly prior to the 1984 Sentencing Reform Act the law was that probation was an alternative to imprisonment. The judge would either impose a sentence and then suspend the execution of that sentence, or would suspend sentencing, so either there would be a suspended sentence of imprisonment, or no sentence at all, then the defendant would be on probation, but probation could not -- you couldn't sentence a defendant to so many years of prison followed by so many years of probation. That wasn't possible.

QUESTION: Probation would not have been a sentence prior to the '84 reform --

MR. HUNGAR: That's also true, Your Honor. Probation was imposed in lieu of the sentence. It was -- the judge either suspended the sentence or suspended imposition of sentence and placed the defendant on probation was the language of the prior statute.

QUESTION: On your view of the interpretation of this language, then, not less than one-third of the original sentence, what is the maximum to which the defendant could have been -- the maximum sentence that could have been imposed?

MR. HUNGAR: Well, it depends. If the minimum required by our reading of the statute is within the guidelines range, then the guidelines maximum would be the maximum, because -- because this provision of section 3565(a) only trumps the other provisions of section 3565 to the extent they're inconsistent. To the extent they're not inconsistent, they continue to govern, so if the minimum is within the guidelines range or below the guidelines range, the top of the guidelines range would still be the maximum, because --

QUESTION: Which is, in this case --

MR. HUNGAR: Well, in this case it's 6 months, which is -- so the guidelines range is not the maximum.

QUESTION: I don't follow that. If one-third of the original sentence is 20 months --

MR. HUNGAR: Yes.

QUESTION: -- wouldn't the full sentence be 5 years?

MR. HUNGAR: Well, the maximum sentence is 5 years if the court wishes to depart from the -- and has grounds for an upward departure from the guidelines range, but normally the maximum sentence that is available under subchapter (a), which is the language of 3565(a)(2). You see, our position is that --

QUESTION: How can 20 months be one-third and 60 months not be the full original sentence? We're talking about what this defendant's exposure is --

MR. HUNGAR: Yes, Your Honor.

QUESTION: -- under your reading of the statute.

MR. HUNGAR: Yes, Your Honor, but the last provision of section 3565(a), the provision we're discussing here, only imposes a mandatory minimum. It doesn't change what otherwise would be the maximum sentence.

So to the extent that -- for instance, if the guidelines range here were 15 to 25 months, and the mandatory minimum under this statute were 20 months, the defendant could be sentenced to -- obviously would have to be sentenced to 20 months.

The court could sentence him up to 25 months because -- because the provisions of 3565(a)(2), which normally govern revocation and which provide that the court can impose any sentence that would otherwise have been available under subchapter (a), that provision would permit the court to go up to 25 months, because a 25-month sentence would also have been available under subchapter (a) at the time of the initial sentencing, so the mandatory minimum 20 months trumps anything in section 3565 to the extent it's inconsistent, but to the extent there's something in 3565 that would permit a higher sentence, that continues to have effect.

QUESTION: I don't understand why it trumps anything inconsistent, because subsection (2), which is the "any other sentence that was available" provision, is trumped by the proviso after it which says, "notwithstanding any other provision."

MR. HUNGAR: Yes, but the "notwithstanding" proviso only requires a mandatory minimum. It doesn't say the rest of sentencing law is totally inapplicable here. All it says is, notwithstanding any other provision of this section, this mandatory minimum sentence must be imposed.

QUESTION: Not less than one-third.

MR. HUNGAR: That's correct, so to the extent other provisions of section 3565 are not inconsistent with the mandatory minimum, they continue to govern.

Now, if the mandatory minimum, as in this case, is higher than the guidelines range, is higher than any other sentence available under subchapter (a), then our position is that the mandatory minimum is also the maximum, because the guidelines provide that when a mandatory minimum sentence exceeds the normal guidelines range, then that mandatory minimum sentence shall be the guideline sentence, and you can't go higher than that.

Further on the point of why the word "revoke" demonstrates that a sentence of imprisonment rather than a sentence of probation is required, the word "revoke" is a term of art in Federal sentencing law when applied to probate or other forms of conditional release. It means that, at least for a time, the defendant has lost the opportunity to enjoy the privilege of conditional release.

Section 3565(a)(2) demonstrates that in the context of probation, under the current sentencing scheme, it makes clear that once a court has revoked a defendant's probation, probation is no longer an option, and some other sentence must be imposed, so by using the word "revoke" in section 3565(a), the provision at issue here, Congress made clear --

QUESTION: Well, is that necessarily true, just as a matter of pure plain meaning? Suppose there was just 1 month left of the probationary -- say it was on 9 years probation. At the end of the probation he's caught with cocaine in his system. Would it not be at least logically possible to revoke the remainder of that probationary period and impose a new sentence of 3 years' probation?

MR. HUNGAR: Well, first of all --

QUESTION: Why isn't that possible?

MR. HUNGAR: -- the maximum probationary sentence is 5 years, but --

QUESTION: Well, whatever the --

MR. HUNGAR: -- that applied, right. We don't think so, because that's not the way "revoke" is used in Federal sentencing law. It doesn't mean, terminate conditional release with the option of then imposing a new sentence of conditional release. What it means is, you have lost your chance to enjoy conditional liberty, and you're going to go to prison --

QUESTION: You have lost your chance to enjoy the particular conditional liberty on which you have been sentenced --

MR. HUNGAR: Well, the dichotomy in section --

QUESTION: -- which has another 30 days to run.

MR. HUNGAR: The dichotomy in-section 3565(a)(1) and (a)(2) demonstrates this point, and this applies not merely to probation under this statute, but the same is true under previous statutes, the same is true for supervised release and parole. When revocation occurs, as a rule the defendant goes to jail, and at the very least, conditional liberty is no longer possible, and in section 3565(a)(1), the court has an option of continuing the defendant on probation, the same probation and extending the term if the court wishes.

QUESTION: Well, I should think that you can argue, at least from a semantic standpoint, that if you revoke the first sentence of probation, and then impose a new sentence of probation with much more onerous

MR. SMITH: Yes, Your Honor. It also could refer to the sentencing guideline range. If you want to view it technically, section 3742 refers to sentence --

QUESTION: Well, but that would be more of a stretch than it would to say it refers to the sentence of probation.

MR. SMITH: Your Honor, I don't think so, viewed in its historical context. This Court would have to find that this technical change was meant to fundamentally alter the way probation revocations work, and I think that that is what is the real stretch here. It's like the tail wagging the dog. The Government is asking this Court to infer from discussions -- minor discussions, no discussions in the legislative history.

I indicated to the Solicitor General I would mention this case, and it's the Dewsnup case. It's a -- Dewsnup v. Tim, and in that case, it's a bankruptcy case, but the court found that pre-code law should not be assumed to be fundamentally changed without at least something in the legislative history.

QUESTION: Well, I'm not sure what you mean by a fundamental change in revocation. I mean, it's always been the case that if someone is convicted and sentenced to probation, that if the terms of the probation are violated, a revocation is possible.

What we're looking at here is what is the required minimum sentence of incarceration in the event of a violation of probation that involves possession of a controlled substance. I don't think that's a fundamental change. You still have to go through the mechanics of revoking probation and then figure out what the mandatory minimum incarceration is.

MR. SMITH: Yes, Your Honor, you do have to do that, but what is different from history, fundamentally different, is you've never based the amount of revocation time on the probation term, because probation serves a very different purpose. That's the fundamental change. It's never been done that way, and it yields --

QUESTION: Mr. --

MR. SMITH: -- very strange results.

QUESTION: -- Smith, maybe you've been too generous here. I suppose your first answer to Justice O'Connor, were you not so generous, is that you don't mind interpreting this thing literally. If you interpret it literally, you end up with a probation term of one-third the original sentence, right?

MR. SMITH: Yes, Your Honor, that would be the literal interpretation.

QUESTION: And so once we -- and literally, that's clearly what it means, and once we depart from that, the issue is simply whether we take a -- I mean, really, to call it a nonliteral interpretation doesn't really do justice to what a leap it is -- we take a fanciful interpretation, should we take a fanciful interpretation that favors your client, or the fanciful interpretation that favors the Government? That's really the choice, because the only literal interpretation gives your client, as punishment, one-third of his original probation term.

MR. SMITH: Yes, Your Honor.

You want to -- you want to know what I really think happened? In October of 1988, there had been almost no guidelines revocations. Even though it was passed in the Sentencing Reform Act of 1984, it didn't go into effect until November 1st of '87, for crimes that were committed after then.

For somebody to have gotten to the revocation stage, they would have had to commit a crime after November 1st of '87, been arrested, been convicted, have he presentence report prepared, be sentenced, and sentenced under the guidelines, which there was a big dispute before Mistretta whether the guidelines were even constitutional, then go out and be revoked and again be arrested and sentenced for revocation, all before October of '88, less than 10 months after the guidelines went into effect.

It is likely, if you really want to know what I think, that Congress was thinking about the old system when they did this, and it is not clear that this is what Congress intended.

QUESTION: Well, but I'm still not clear on your answer to Justice Scalia. He points out, it seems to me correctly, that you are in basic agreement with the Government, so far as your submission so far, that your client must receive a term of incarceration --

MR. SMITH: No, Your --

QUESTION: -- and I don't see why you don't argue that one-third of the original sentence means one-third, as a minimum, of the original probation sentence, a probation sentence with maybe more onerous condition, but you seem to back away from that.

MR. SMITH: Your Honor, if I did, I apologize. What I'm trying to say is this. I think the issue before this Court is the cert petition issue, did the lower court -- did the court of appeals err in finding that it could not be more than the top of the guideline range, the original sentence could not be more than the top of the guideline range, and I think this Court can easily answer that, whether following Justice Scalia's interpretation or the court of appeals decision below, that it does not.

QUESTION: Well, Mr. --

QUESTION: Well, we have to answer it with some sort of reasoned opinion, not just kind of a -- the least common denominator type of -- what did the Eleventh Circuit say about -- do you think it followed the statute literally?

MR. SMITH: Your Honor, I think they followed it particularly in its historical context as closely as it could be followed. The guideline range replaced the old suspended sentences, in our view, and that's what they tried to go back to as the barometer.

QUESTION: They certainly didn't say, did they, that the only sentence that could be imposed was probation?

MR. SMITH: They did not, no, Your Honor.

QUESTION: Well then, in fact, Mr. Smith, the whole statutory scheme here seems to me to be perfectly clear that you can't reinstate someone on probation after they had a controlled substance possession established. I mean, that just seems to be the clear import of the language.

MR. SMITH: Your Honor, I don't agree for this reason. There are additional conditions that could be placed on the probation, and while it may seem odd to put somebody back on straight probation when the probation has a condition of inpatient drug treatment, it doesn't seem quite the same sentence.

The disparities created by the Government's interpretation are weird, to say the least.

QUESTION: Mr. Smith, before you go on with that, do I understand you correctly to say that on your view, if there must be incarceration, then the top would be 6 months, and the minimum, not less than one-third, would be 2 months, is that your view?

MR. SMITH: Yes, Your Honor, and it's interesting, the Government below in its plea agreement agreed not to recommend a sentence above the original 6-month range, so it's clear that Mr. Granderson would not have gotten more than 6 months, unless the judge disagreed with the Government on what was the --

QUESTION: Your interpretation of not less than one-third of the original sentence would be --

MR. SMITH: Two months of some kind of confinement.

The disparities by the Government, however, are very strange. A person who's a misdemeanant, who gets 5 years of probation, the Government would have that person get 20 months in jail, more than the statutory maximum for the underlying offense.

It would cause Mr. Granderson to get a higher minimum sentence of 20 months than his revocation range under the revocation guidelines would have been if he distributed or manufactured drugs while on probation.

It would cause him to get a minimum that is more than 40 times what he would get if he were convicted as a repeat drug possessor -- convicted a second time as a repeat drug possessor.

It would even cause him to get more than if he possessed -- the drug that he possessed in his system in jail, if he'd had the audacity to bring it in to jail, his maximum would have been 1 year. The Government submits that it's more than that.

QUESTION: Mr. Smith, if we adopt your interpretation, is it always the more lenient for the defendant, or does it just happen to be in the case of your client?

MR. SMITH: It certainly is in the case of my client, and we submit it will always be.

QUESTION: I know -- there's no situation in which using the Government's system would produce a lower sentence?

MR. SMITH: We don't believe so, no. The Government's situation also pretends further problems down the road. If this person who is a misdemeanant gets 20 months after the revocation, and then possesses a gun, is that person a felon in possession? These are problems this Court need not create.

Our recommendation, and the one from the court of appeals below, has no such problems. The Government -- and all the courts of appeals that have adopted it indicates no problems, and if you turn to the legislative history, you see why. If the Government had intended -- if the Congress, excuse me, had intended this fundamental change, don't you think there would be something in the legislative history -- something, if they wanted to start using probation terms as the barometer? There's nothing.

In the Dewsnup case, you would think, based on that, that that would be required. More importantly --

QUESTION: Dewsnup dealt with the principle we've enacted in connection with the Bankruptcy Code in 1978, that absent some showing to the contrary either in the legislative history or the statutory language, we would presume that the old Bankruptcy Act, the principles carried over, but we've never had -- enunciated any such general principle in connection with the entire body of criminal law.

MR. SMITH: No, Your Honor, not specifically, but I think frankly it ought to be more easily applied in a criminal context because the Rule of Lenity applies in a criminal context and would not in a bankruptcy context.

QUESTION: No change from prior law unless it is specifically mentioned in the legislative history.

MR. SMITH: Yes, Your Honor, that's how we read Dewsnup.

QUESTION: So you can't make any changes in conference committee, for example. That's sort of a constraint upon Congress.

MR. SMITH: Justice Scalia, I know you dissented from Dewsnup and don't necessarily agree with that principle, and I think it's an issue that --

QUESTION: Oh, I disagree with much more than that. I wouldn't use it at all, but to say that a piece of legislation is ineffective unless the text of the statute is supported by legislative history is extraordinary.

MR. SMITH: No, Your Honor, perhaps I'm stating it too broadly. I think what this Court said is, it would not assume a fundamental change absent some indication in the legislative history, it would not assume that, and I think it shouldn't assume it here.

If Congress made the change we suggest --

QUESTION: May I ask you a question, going back to -- looking at the time the statute was enacted, were there people in Federal prisons at that time who had been sentenced under the regime that Justice O'Connor described such as having gotten a sentence of 6 months -- or a sentence of 6 months in jail suspended, and in lieu thereof probation for 5 years, for example?

MR. SMITH: That's most of the cases that were coming before cases in 1988, Your Honor.

QUESTION: And under that view, what would you have interpreted the original sentence to refer to, the suspended term of imprisonment, or the probationary period?

MR. SMITH: The suspended sentence. You never use the probation term as the barometer, never. It's not done.

QUESTION: So you're saying that there are -- there were -- at the time the statute was enacted, there was a prison population who would have fit the description Justice O'Connor's hypothetical used.

MR. SMITH: Yes, Your Honor.

QUESTION: And they were eligible for having their probation revoked at that time.

MR. SMITH: Yes, Your Honor.

QUESTION: But do you disagree with the Government that that would not have fit this statute because prior to this change probation was not considered a sentence of any kind?

MR. SMITH: Your Honor, it's called a sentence in 1984, but it's not treated as a sentence in every respect. As I indicated, you don't get credit for time --

QUESTION: Before it wasn't treated -- I mean, you didn't convert probation time into jail time because probation was not considered a sentence.

MR. SMITH: Yes, Your Honor.

QUESTION: It didn't fit the words, a sentence, until the change in the law.

MR. SMITH: Yes, Your Honor, and even after the change in the law -- after 1984, when probation was called a sentence, you still didn't use the probation terms. You go back to any sentence that was available under subchapter (a) at the time of the sentencing, which means you go back to the revocation range.

Every court of appeals to interpret that has said that that meant the original guideline range, so you still didn't use the probation term even after probation was called a sentence. Probation was called a sentence to make it more understandable to citizens. They didn't understand the suspended sentence part, and Congress wanted to do away with those formalities in the 1984 act that were confusing, and they also may have wanted to make it easier to make statutes, certain crimes not eligible for probation.

There used to be a split in this court about whether that meant, if you just simply say no probation, does that also outlaw suspended sentences, and they wanted to do away with all that gobbledygook, but it didn't change the way probation worked. Even after 1984, you still didn't use the probation term, which is based on how long it takes to pay a fine, those sorts of questions, into revocation sentences.

QUESTION: I suppose it wouldn't be strange to think that if Congress did have in mind the old system, and was referring to one-third of the original sentence that was suspended, I wonder, it was always my understanding that if you violated the terms of your probation, not just one-third of the sentence that was imposed would be given you, but in fact the whole term.

Would it be normal to revoke probation, which was a grace from a sentence that was presumably a considered sentence? Revoke the probation, and then say, but we're not going to give you your original sentence, we're just going to give you one-third of it?

MR. SMITH: My understanding is that the parameters were set by the suspended sentence. I don't think --

QUESTION: I'm talking about under the old system that Justice O'Connor was referring to. It had always been my assumption that if you violated your probation, what would happen is that the original sentence -- the full term of it, not one-third of it -- would come down upon you.

MR. SMITH: No, Your Honor, the court could suspend imposition of the sentence, for example, and there would be no sentence to put in its place, so I think the court still retained discretion, but there was something over their head, just like there's a guideline range over a defendant's head now.

QUESTION: Yes, but this statute would have made a change in that prior to this statute, if the person on probation were found in possession of cocaine, as this man was, the judge might not have revoked this probation at all. He might have said, well, I'll give you a second chance, but as I understand it, it is now mandatory that probation must be revoked if this particular reason for revoking exists, so that in that sense it's tougher, even though --

QUESTION: Well, if you're dealing with the world of earlier sentencing jargon, your answer to Justice Scalia's question is based on the hypothesis that the judge in that hypothetical case said he would suspend the imposition of sentence, but as I recall it myself, and as I think I understand the discussion, judges also under that regime would impose a sentence but suspend serving it.

In other words, they wouldn't always suspend the imposition of a sentence, and it seems to me your answer to Justice Scalia doesn't fit so well in the latter situation, where there are sentences imposed but its service is suspended.

MR. SMITH: Yes, Your Honor. Even in that context, though, looking at this case, the judge under the guidelines wouldn't have given more than 6 months. It's as if he imposed a sentence of 6 months and suspended it.

The guidelines suggest that a sentence of more than 6 months wasn't warranted, and the Government's agreement in the plea agreement suggests that a sentence beyond 6 months wasn't warranted, so looking even at the imposition -- excuse me, execution suspended, it's still -- the sentence that would have been imposed would not have been more than 6 months.

QUESTION: What was the sentence in fact imposed in this case?

MR. SMITH: Mr. Granderson was placed on probation for 5 years plus a $2,000 fine, and that doesn't fit either side's description.

QUESTION: Mr. Smith, let me make sure I understand something, because I was never a Federal sentencing judge. In the case that you were just talking about, which the execution is suspended --

MR. SMITH: Yes, Your Honor.

QUESTION: -- if the probation is violated, the judge under the prior law had complete discretion to determine how much of the execution would then be imposed, isn't that true, so if --

MR. SMITH: I believe so, Your Honor.

QUESTION: Okay.

MR. SMITH: If you look at the legislative history the way we see it, where a floor is being placed within the existing framework of zero to 6 months, that is a minor technical change, the kind you would not expect there to be a lot of legislative history on, and so it's not surprising that there's not here.

More importantly, since the briefs have been filed, I indicate that Senator Thurmond introduced a bill to change this, and he did so because Congress recognized, or at least he told Congress, that there was ambiguity in that statute. It's interesting that that is now part of the omnibus Senate crime bill.

Senate bill 1607 states that if a person possesses drugs while on probation, the court shall -- this is what it says: "The court shall revoke the sentence of probation and resentence the defendant under subchapter (a) to a sentence that interns a term of imprisonment.

QUESTION: Gee, I guess if that's what they want to change it to, it must not mean that now.

MR. SMITH: Your Honor, that is not the legislative history. Senator Thurmond's --

QUESTION: This is subsequent legislative history we're talking about now, isn't it?

MR. SMITH: Yes, Your Honor.

QUESTION: Future -- future history, so to speak.

MR. SMITH: Yes, Your Honor, and Senator Thurmond's reason for introducing it was that there was ambiguity in the statute.

QUESTION: This final decision whether there's ambiguity in the statute is committed to the courts, not to Senators, or individual Senators.

MR. SMITH: Yes, Your Honor, this has limited impact, but all I'm trying to tell the Court is that if this Court finds ambiguity, it would be telling Congress nothing more than it's already been told.

QUESTION: Perhaps by a superior source.

MR. SMITH: By a superior source, indeed, Your Honor.

(Laughter.)

MR. SMITH: All I'm saying is, I don't think it would be a surprise to Congress to learn that they had -- as Justice Blackmun said, that this is not a particularly well-drafted statute.

I think when the Government's suggestion would lead to fundamental and dramatic changes, this Court should require real clarity. When the Government's suggestion would lead to these kind of disparities and potential constitutional concerns, this Court should require real clarity.

QUESTION: On your reading, could the judge say, originally the guidelines gave me zero to 6 months, but I could have gone up to 5 years if I wrote an opinion saying why I was going outside the guidelines. Now I'm ready to do that. Would that be within the range on your interpretation?

I asked you before -- I think you said that the range would be 2 months minimum, 6 months maximum. Could the judge at this stage say, I'm going to go back to the sentencing authority I had originally, sentence him to the 5 years, and I'll write an opinion explaining why?

MR. SMITH: Yes, Your Honor, if the facts warranted it, they could depart as they normally depart, but we would have a right to appeal that departure as being above the range. The Government takes that opportunity away from it and creates disparities as a this hypothetical.

If a person is a misdemeanant, and gets 5 years of probation, and that person commits murder while on probation, the statute would -- Congress would take that person back to the zero to 6-month range, and that's where they're presumptively supposed to be sentenced upon revocation, within zero to 6 months. Even if the court departed, it could go only to 12 months, the statutory maximum.

The Government's position would cause a person who simply possesses drugs -- not that that's not a serious offense, but possesses drugs, to get 20 months, 8 months more than somebody who commits murder in that context.

QUESTION: The Government with a more serious crime always has the option to independently prosecute the person and not simply to resort to this provision.

MR. SMITH: Yes, Your Honor, and they have the opportunity to prosecute for possession of drugs as well.

QUESTION: Mr. Smith, I think you've just given me an example in which the Government's interpretation would be more lenient to the defendant than yours. Wasn't that the point of your example?

MR. SMITH: No, Your Honor. Their interpretation yields 20 months for possession of drugs, whereas we submit that the range of zero to 6 months is what ought to apply.

QUESTION: I thought your point was that you should be able, in the event of murder, to consider going higher, to consider going beyond the guidelines range, wasn't that your point?

MR. SMITH: Your Honor, I think upon any revocation you can depart if departure is warranted, even with drug possession. All I'm trying to say is, the Government's situation in a misdemeanor context would cause somebody who murders while they're on a misdemeanor probation to potentially get less than a person who possesses drugs while on probation.

This Court should require real clarity not only when there's a fundamental and dramatic change that they're suggesting, not only when there are disparities created, as the Government suggests, but when you're taking away a judge's right, an ability to do justice, justice as he sees fit, individualized sentencing is best unless Congress restricts it.

Here, no one -- no one below, no one here --

QUESTION: -- know that individualized sentencing is best? I mean, Congress provided for a regime of individualized sentencing for a long time. It abandoned it in '84, and now has guidelines. How is a court to say that one is better than the other?

MR. SMITH: Your Honor, there are limits that Congress has placed on it, but they've never taken away individualized sentencing.

QUESTION: Well, they haven't totally taken it away, but why should a court say that more judicial discretion is better than less judicial discretion in sentencing?

MR. SMITH: Your Honor, I guess it's because I just don't think that judges are -- I mean, why do we have judges? They'd be simply robots if they're simply doing what Congress says has to be done and Congress is doing all the sentencing. I think we have judges because we want justice to be tempered with mercy.

QUESTION: It's not any necessary part of your case to talk about the difference between individualized sentencing and guideline sentencing.

MR. SMITH: No, Your Honor. The only point I'm trying to make is that no one below and no one here argues that Mr. Granderson needs 9 more months of jail from today. No one says that's the just result, and I recognize that if Congress states clearly that that's not what should happen, this Court has to follow it, but Congress hasn't stated so clearly here.

If there are no other questions from the Court, I have nothing further to say.

QUESTION: Thank you, Mr. Smith.

Mr. Hungar, you have 10 minutes remaining.

REBUTTAL ARGUMENT OF THOMAS G. HUNGAR ON BEHALF OF THE PETITIONER

MR. HUNGAR: I have a few brief points I'd like to make. First, in response to Justice Stevens' question about whether there would be a class of defendants who had been sentenced under the previous scheme, the answer to that question is no. This statute -- the effective date of this provision was to those defendants whose term of probation began in 1989. That is, after December 31st, 1988. This statute was enacted in I believe in -- well, it was adopted by Congress in October of 1988.

So because probation begins under the statute upon imposition of the sentence, anyone who received a sentence of probation that would be covered by this statute would have done so after the statute went into effect.

QUESTION: How would the statute apply, Mr. Hungar, to a person who 4 years earlier had been given a suspended sentence of 6 months, then was suspended and was put on probation for 5 years? Now, that would not be a sentence, I understand, as Justice Ginsburg has pointed out, but he's on probation at the time, and then that person's probation was revoked. Would the statute apply to that person?

MR. HUNGAR: No, because the effective date provision of this particular statute at section 7303(d) of the 1988 act, which added this amendment -- the effective date of this provision, it applies to sentences of probation that begin after December 31st, 1988, so in your hypothetical, it would not be subject to this provision.

QUESTION: So the sentence -- if the person on probation had its probation revoked after the enactment of the statute, that person would not have had any mandatory requirement. I mean, the statute simply wouldn't apply.

MR. HUNGAR: This statute would not apply to that person, yes.

QUESTION: The statute you refer to explicitly says that the effective date of this statute will be with reference to those persons whose sentence of probation was after the effective date?

MR. HUNGAR: Yes, Your Honor, I think I have the language here. It's section 7303(d) of the act.

QUESTION: 7303(d)?

MR. HUNGAR: Of the 1988 act, and it provides, "The amendments made by this section shall apply with respect to persons whose probation begins after December 31st, 1988.

QUESTION: All right.

MR. HUNGAR: In answer to Justice Scalia's question about whether there are any cases in which the Government's interpretation would be more lenient, there are such cases. In fact, there was a district court case which we didn't cite in our brief in the District of Columbia, the United States against Harrison, 815 F.Supp. 494, and in that case the judge held that the Government's interpretation was more lenient, and therefore, regardless of the ambiguity, the Rule of Lenity required adoption of the Government's interpretation, because there the guidelines range was 97 to 121 months, and the court had departed downward and imposed probation, but then the defendant --

QUESTION: But that's an extraordinary case with a downward departure. Where the sentence is within the guideline range, then overwhelmingly your interpretation is going to incarcerate the defendant for a considerably longer time.

MR. HUNGAR: That's correct, Your Honor. The Sentencing Commission statistics, the 1991 and 1992 annual report, suggest that only 5 to 10 percent of probationary sentences are downward departures, but of course, in those downward departures, in this case, for example, the effect of applying respondent's interpretation would have been to mandate a sentence of over 40 months in prison, which is far more than our interpretation could ever mandate, but it's true that in most cases that would not be the case.

QUESTION: It is true that supervised release terms, in terms of number of months or years, tends to be shorter than sentences of probation, is that not so?

MR. HUNGAR: I don't know whether that's true, Your Honor. There are limitations that are more strict in some cases than in probation, but it's interesting to note that of the 12 court of appeals cases of which we're aware that apply this provision, Granderson is the only one in which the defendant received 5 years of probation. In every other one of those cases the defendant received no more than 3 years of probation, and I'm not aware of statistics indicating whether supervised release or probation on average is longer.

QUESTION: Mr. Hungar, how does the Rule of Lenity work? I'm not real sure how it works. If -- just make believe the Rule -- we decide to apply the Rule of Lenity. Would that give us a constant interpretation of this statute, depending upon what kind of a situation first comes before us, or rather, would we interpret the statute leniently to the first defendant and then also leniently to the second defendant, depending upon which interpretation works case by case?

MR. HUNGAR: I think the Rule of Lenity requires a constant interpretation. You can't determine lenity based solely on the facts of a particular case and then have the statute mean different things, depending on the particular defendant before the court.

QUESTION: Can you make your basic lenity determination based upon the standard case, the nonextraordinary case --

MR. HUNGAR: Absolutely, Justice Souter, but --

QUESTION: -- which would be this one rather than the D.C. Circuit case?

MR. HUNGAR: Our -- well, I suppose you would also have to consider the degree of lenity. That is, it may be slightly more lenient here and far more harsh there, and that would be taken into consideration as well, but our principal submission is that the Rule of Lenity does not apply. It certainly doesn't apply to permit adoption of respondent's interpretation.

If it applies, then the only way to construe the statute is to require a new, shorter term of probation, which we think is absurd, but can't require respondent's interpretation, because respondent's interpretation is contrary to the plain language of the statute.

QUESTION: That's not the Rule of Lenity, that's just reading the statute.

QUESTION: That's the rule of least absurdity.

MR. HUNGAR: That's right -- no, Your Honor, the Rule of Lenity, as this Court said last term in the Smith v. United States case, which we've cited in our brief, the Rule of Lenity doesn't come into play to let you choose between one interpretation that is consistent with the language and another that's not. The Rule of Lenity just doesn't permit you to adopt an interpretation that is barred by the plain language of the statute.

QUESTION: But once we've applied the rule of least absurdity, then we may be in a position to apply the Rule of Lenity.

MR. HUNGAR: Well, that's my next point, Your Honor. Justice Scalia and Justice Kennedy I think and others have suggested that our interpretation is not consistent with the plain language, so we just have to pick and choose between various inconsistent interpretations -- that is, interpretations that aren't consistent with the plain language, but our interpretation is consistent with the plain language.

It is possible for the phrase, "one-third of the original sentence," to refer to the length but not the type of the sentence. Indeed, Congress used exactly that same formulation in section 3583(g), because there the Congress -- the term of imprisonment to be imposed depends on, and is based on one-third of the term of supervised release, but we know from the context that Congress didn't mean a new term of supervised release that's one third as long as the old term, even though it used the same structure. It meant, in prison, and it made that very clear in section 3583(g).

We think it's equally clear here in context, because when Congress said, sentence the defendant, Congress had already said, revoke probation, so we know probation is not an option. Therefore, by saying, sentence the defendant to not less than one-third of the original sentence, Congress had to be saying, sentence the defendant to prison, and the only question is how long, and that is answered by the phrase, not less than one-third --

QUESTION: Why isn't it just as logical, then, if you -- to go back to the only reference you have for incarceration, which is the originally available sentence of incarceration? You won't allow for probation to get to a sentence of incarceration.

You have to drop something on your interpretation, and on the other interpretation you take the only incarceration sentence that's possible, the sentence that was open to the judge originally. I don't see why that's not an equally permissible interpretation.

MR. HUNGAR: Because original sentence doesn't mean, sentence that was available but not imposed. Original sentence has only one possible meaning as the words are used in the English language.

QUESTION: But we know it cannot mean original sentence, because here the original sentence was one of probation.

MR. HUNGAR: And that's precisely our point. The original sentence was a sentence of probation. Therefore, original sentence means the sentence of probation that was imposed in this case, but one-third of the original sentence doesn't necessarily mean 20 months of probation.

Just as in the supervised release provision, where one-third of the term of release doesn't mean a new sentence of supervised release, here one-third of the original sentence doesn't mean a new sentence of probation, it means --

QUESTION: Well, but in -- that's mis -- it seems to me in 3583(g), the supervised release provision you're talking about, they made it very clear. They said, "and require the defendant to serve in prison" --

MR. HUNGAR: Yes, Your Honor.

QUESTION: -- "not less than one-third of the term of supervised release," and there's no such language here.

MR. HUNGAR: Because it was unnecessary, because when Congress says, "sentence," at the point in the statute where Congress is now directing the court to sentence the defendant, probation is no longer an option, because Congress has already directed the court to revoke probation, and the phrase, "revoke the sentence of probation" means in Federal sentencing law, probation is not an option. Something else has to be imposed instead. The only something else that there is by the time you get to the part of the statute that mandates a new sentence is imprisonment.

QUESTION: Can you cite your authority -- you've said it several times -- for the proposition that once probation is revoked, the judge does not have the authority to reinstate probation on different terms and conditions?

MR. HUNGAR: Well, it's inherent in the very doctrine -- section 35 --

QUESTION: No case has said that, that you know of?

MR. HUNGAR: Yes. Every case that construes section 3565(a)(2), which talks about revocation of probation, says that the court has to impose some other sentence from within the guidelines range, but probation is not an option.

QUESTION: You all think this statutory language commands that, and forbids a different sentence of probation on much more severe terms?

MR. HUNGAR: The fact that Congress has always used revoked to mean exactly that I think commands the result that we urge.

QUESTION: So you have no authority for it.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Hungar. The case is submitted.

(Whereas, at 11:02 a.m., the case in the above-entitled matter was submitted.)