UNITED STATES of America, Plaintiff-Appellee, v. E.T.H., JUV Defendant-Appellant.
No. 15-1672
United States Court of Appeals, Eighth Circuit.
Submitted: November 19, 2015 Filed: August 18, 2016
Nonetheless, the government argues that part of the sentencing colloquy in which the district court “contemplated aloud a situation where it would have exceeded the Guidelines” indicates that no reasonable probability exists that Mulverhill would receive a lesser sentence. We recognize that “[t]here may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist. The sentencing process is particular to each defendant, of course, and a reviewing court must consider the facts and circumstances of the case before it.” Molina-Martinez, 136 S.Ct. at 1346 (citation omitted). The present case is not a situation in which the government has shown “that the court ‘would have arrived at the same term of imprisonment absent the procedural error.‘” Tegeler, 650 Fed.Appx. at 905 n.3, 2016 WL 3057789, at *3 n.3 (quoting United States v. Henson, 550 F.3d 739, 742 (8th Cir. 2008); citing United States v. Sanchez-Martinez, 633 F.3d 658, 660-61 (8th Cir. 2011); United States v. Woods, 670 F.3d 883, 887 (8th Cir. 2012)). The district court made no affirmative statements or indications of its intention to impose the same sentence even if Mulverhill‘s total offense level were lower.
Accordingly, we find that the district court plainly erred in calculating Mulverhill‘s total offense level as 23; therefore, Mulverhill is entitled to resentencing under a correctly calculated Guidelines range utilizing a total offense level of 21.
III. Conclusion
Accordingly, we vacate Mulverhill‘s sentence and remand for resentencing.
Counsel who appeared on the brief and presented argument on behalf of the appellee was Kevin Koliner, AUSA, of Sioux Falls, SD.
Before MURPHY,1 SMITH, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
E.T.H., who was originally adjudicated a juvenile delinquent for assaulting a federal officer, appeals from the district court‘s imposition of a combination of official detention and juvenile delinquent supervision (“supervision“) following revocation of E.T.H.‘s prior supervision term. E.T.H. argues that the total combined term of detention and supervision exceeds the maximum possible term under the Federal Juvenile Delinquency Act (FJDA),
I. Background
In 2013, E.T.H. was adjudicated a juvenile delinquent for assaulting a federal officer, in violation of
Three days later, on July 10, 2014, E.T.H. was arrested for simple assault, resisting arrest, disorderly conduct, and public nuisance. On July 11, 2014, E.T.H.‘s probation officer petitioned to revoke E.T.H.‘s probation. On September 23, 2014, the district court sentenced E.T.H. to detention until his 18th birthday, followed by two years of supervision. As a result of this sentence, E.T.H. served 4 months and 11 days in detention. His supervision term was scheduled to expire on November 21, 2016.
On E.T.H.‘s 18th birthday, he commenced supervision at Glory House in Sioux Falls, South Dakota. On December 12, 2014, E.T.H. produced a urine sample that tested positive for dextromethorphan. On December 19, 2014, the district court held a status hearing on E.T.H. and then returned him to Glory House.
On January 19, 2015, another of E.T.H.‘s urine samples tested positive for synthetic cannabinoids. Later that day, E.T.H. removed his electronic ankle monitor, left Glory House without permission, and failed to return. The police located E.T.H. two days later, finding him highly intoxicated at the scene of a car accident. On January 21, 2015, E.T.H.‘s probation officer petitioned to revoke E.T.H.‘s supervision, alleging that E.T.H. violated the conditions of his supervision by (1) possessing and using a controlled substance, and (2) failing to reside and participate in the residential re-entry center. E.T.H. was arrested on January 26, 2015, and he remained in custody for the pendency of the revocation proceeding.
On February 5, 2015, E.T.H. admitted to the second allegation in the petition. Before the disposition hearing, the probation office prepared a supplemental predisposition investigation report (PIR). Paragraph 14 of the supplemental PIR provided that “[h]ad [E.T.H.] been convicted as an adult, the maximum of the guideline range he could have been sentenced to was 18 months. . . . On a prior revocation, [E.T.H.] served 4 months and 11 days; therefore, the maximum term of official detention is 13 months and 19 days.” The government moved for an upward departure and objected to this portion of the PIR at the disposition hearing. The government argued that Eighth Circuit precedent permits a district court to “upwardly depart, following revocation of juvenile probation, based on the juveniles’ continued unlawful behavior while on supervision.” (Citing United States v. K.R.A., 337 F.3d 970 (8th Cir. 2003); United States v. A.J., 190 F.3d 873 (8th Cir. 1999).) At the disposition hearing, the government maintained that while “a statutory cap” existed, there was “no guideline cap.” According to the government, the Guidelines range that E.T.H. would have been subject to had he been convicted as an adult was not a “cap,” meaning that the district court could up-
The district court responded by observing that the FJDA “is largely incomprehensible” and “needs to be rewritten” and that the rules concerning juvenile delinquent dispositions are “a bit on the mushy side.” The court commented that it is vested with “a great deal of discretion” in juvenile cases and that “the best interests of the juvenile is a factor for the Court to consider” in determining the appropriate disposition. The court found the government‘s argument “an interesting point” but declined “to test the outer limits of its authority to sentence this juvenile to prison.” The court characterized the question presented as “academic” and refused “to wade in and attempt to . . . resolve that issue.”
Thereafter, the court heard argument from the parties on what the proper disposition should be and also engaged in a lengthy discussion with E.T.H. The court gave a thorough recitation of E.T.H.‘s history and the case history before announcing its disposition. The court placed E.T.H. in the Reintegrating Youthful Offenders program in Galen, Montana, a place where E.T.H.‘s “addiction issues might be addressed and where he can do more for himself than just sitting in a prison setting.” “[M]indful of all of the factors in a juvenile delinquent case,” the court imposed a disposition of “time served, plus whatever time it takes for placement at the Reintegrating Youthful Offenders program in Galen, Montana, followed by juvenile delinquent supervision for a term of two years on the same terms and conditions, adding the term about the [Reintegrating Youthful Offenders] placement and residential reentry center placement.” The court acknowledged that the disposition was “a little bit on the indefinite side because . . . it could take as long as 30 days for . . . him to be actually placed” in the program. As a result, the court “ha[d] to fashion the sentence as time served, plus whatever time it takes for the U.S. Marshal to transport him to Galen, Montana, when they are ready for him there.”
E.T.H.‘s counsel objected to the disposition, arguing that “the maximum amount that he can be subject to custody and . . . further supervision is . . . 13 months and 19 days, without a finding by the Court of a different number.” The court replied that it was “mak[ing] a finding that this juvenile‘s rehabilitation needs are so vast that additional supervision of two years beyond the point where we are today is required.” The court entered a judgment ordering that E.T.H. “be detained for a total term of: Time served plus any additional time, up to 30 days, that it takes to make arrangements for him to be placed at Reintegrating Youthful Offender‘s Program in Galen, MT and for the U.S. Marshal to transport him there.” The judgment also provided that upon E.T.H.‘s release from official detention, he “shall be on juvenile delinquent supervision for a term of: 2 years.” This supervision term is the subject of the present appeal.
II. Discussion
On appeal, E.T.H. argues that the total term of detention and supervision that the district court imposed exceeded the maximum possible penalty permitted under
“We have jurisdiction to review a sentence pronounced under the FJDA to determine whether it was ‘imposed in violation of law’ or is ‘plainly unreasonable.‘”
The focus of our review is
(2) The term of juvenile delinquent supervision that may be ordered for a juvenile found to be a juvenile delinquent may not extend—
(A) in the case of a juvenile who is less than 18 years old, a term that extends beyond the date when the juvenile becomes 21 years old; or
(B) in the case of a juvenile who is between 18 and 21 years old, a term that extends beyond the maximum term of official detention set forth in section 5037(c)(2) (A) and (B), less the term of official detention ordered.
(Emphases added.) In turn,
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(2) in the case of a juvenile who is between eighteen and twenty-one years old—
(A) who if convicted as an adult would be convicted of a Class A, B, or C felony, beyond the lesser of—
(i) five years; or
(ii) the maximum of the guideline range, pursuant to section 994 of title 28, applicable to an otherwise similarly situated adult defendant unless the court finds an aggravating factor to warrant an upward departure from the otherwise applicable guideline range; or
(B) in any other case beyond the lesser of—
(i) three years;
(ii) the maximum of the guideline range, pursuant to section 994 of title 28, applicable to an otherwise similarly situated adult defendant unless the court finds an aggravating factor to warrant an upward departure from the otherwise applicable guideline range; or
(iii) the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.
(Emphases added.)
In contrast to
(5) If the juvenile violates a condition of juvenile delinquent supervision at any time prior to the expiration or termination of the term of supervision, the court may, after a dispositional hearing and after considering any pertinent poli-
cy statements promulgated by the Sentencing Commission pursuant to section 994 of title 18, revoke the term of supervision and order a term of official detention. The term of official detention which is authorized upon revocation of juvenile delinquent supervision shall not exceed the term authorized in section 5037(c)(2)(A) and (B), less any term of official detention previously ordered. The application of sections 5037(c)(2)(A) and (B) shall be determined based upon the age of the juvenile at the time of the disposition of the revocation proceeding. If a juvenile is over the age of 21 years old at the time of the revocation proceeding, the mandatory revocation provisions of section 3565(b) are applicable. A disposition of a juvenile who is over the age of 21 years old shall be in accordance with the provisions of section 5037(c)(2), except that in the case of a juvenile who if convicted as an adult would be convicted of a Class A, B, or C felony, no term of official detention may continue beyond the juvenile‘s 26th birthday, and in any other case, no term of official detention may continue beyond the juvenile‘s 24th birthday. (6) When a term of juvenile delinquent supervision is revoked and the juvenile is committed to official detention, the court may include a requirement that the juvenile be placed on a term of juvenile delinquent supervision. Any term of juvenile delinquent supervision ordered following revocation for a juvenile who is over the age of 21 years old at the time of the revocation proceeding shall be in accordance with the provisions of section 5037(d)(1), except that in the case of a juvenile who if convicted as an adult would be convicted of a Class A, B, or C felony, no term of juvenile delin-quent supervision may continue beyond the juvenile‘s 26th birthday, and in any other case, no term of juvenile delinquent supervision may continue beyond the juvenile‘s 24th birthday.
(Emphases added.) (Footnote omitted.)
“To avoid an inordinate term of juvenile supervision and detention, any combination of supervision and detention, including sanctions following revocation, may not extend beyond the periods available in § 5037.” Gergits, supra, at 39. Here, both parties agree that
Section 5037(d)(2)(B) provides that the maximum supervision period that a district court may order for a juvenile delinquent is “in the case of a juvenile who is between
By contrast, the government contends that
We are now tasked with determining the maximum term of supervision upon revocation for a person under age 21 in the face of an indisputably ambiguous statute. A statute is ambiguous if it is “capable of being understood in two or more possible senses or ways.” See Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001) (quoting Webster‘s Ninth New Collegiate Dictionary 77 (1985)). At oral argument, the government characterized the statute as falling within the category of “admittedly ambiguous statutes” that a court must construe sensibly. It also admitted that
When a statute is ambiguous, a court “seek[s] guidance in the statutory structure, relevant legislative history, congressional purposes expressed [in the statute at issue], and general principles [of law relevant to the statute at issue].” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985). Our review of the structure and purpose of
Second, a possibility exists that failure to recognize a maximum penalty for juveniles between 18 and 21 years old could lead to absurd results. “A statute can . . . be considered ambiguous when a particular interpretation from the face of a statute could lead to an anomalous, unusual or absurd result.” Breedlove v. Earthgrains Baking Cos., 140 F.3d 797, 800 (8th Cir. 1998); see also Ashley, Drew & N. Ry. v. United Transp. Union, 625 F.2d 1357, 1365 (8th Cir. 1980) (“[I]t is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects the statute‘s purpose.” (citation omitted)); Friedman v. United States, 374 F.2d 363, 367 (8th Cir. 1967) (“A literal interpretation of a statute will not be resorted to when it brings about absurd consequences or produces results not intended by Congress.” (citation omitted)). As explained supra, the goal of
a person who was 20 years and 364 days old on the day of the revocation hearing would be subject to an unlimited term of supervision while a person who was two days older (i.e., 21 years and 1 day), could only be placed on supervision until his 24th or 26th birthday, depending on the underlying offense.
Third, the government‘s argument that subsection (d)(6) specifies the maximum term of post-revocation supervision for a juvenile under 21 years old as his 24th birthday is not consistent with the canons of statutory construction. Under the last antecedent rule, “[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent.” 2A Norman J. Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 47:33 (7th ed. 2007) (footnote omitted). “The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.” Id. (quotation and footnote omitted). As a result, “a proviso usually applies to the provision or clause immediately preceding it.” Id. (footnote omitted). “While [the last antecedent rule] is not an absolute and can assuredly be overcome by other indicia of meaning . . . construing a statute in accord with the rule is quite sensible as a matter of grammar.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003) (quotation and citation omitted).
Here,
[a]ny term of juvenile delinquent supervision ordered following revocation for a juvenile who is over the age of 21 years old at the time of the revocation proceeding shall be in accordance with the
provisions of section 5037(d)(1),4 except that in the case of a juvenile who if convicted as an adult would be convicted of a Class A, B, or C felony, no term of juvenile delinquent supervision may continue beyond the juvenile‘s 26th birthday, and in any other case, no term of juvenile delinquent supervision may continue beyond the juvenile‘s 24th birthday.
(Emphasis added.) Applying the last antecedent rule, the “except” clause of
Having determined that we must look to subsection (d)(2) to determine the length of a “juvenile delinquent supervision” term that a court may order under subsection (d)(6), we must now consider whether for the purposes of subsection (d)(2), the court must use the juvenile‘s age at the date of the revocation hearing in ordering supervision under subsection (d)(6), or instead his age at the date of the initial disposition hearing. We conclude that a court must use the juvenile‘s age at the date of the revocation hearing. First, both subparts of subsection (d)(2) refer to the age of the juvenile using the present tense: “a juvenile who is less than 18 years old” or “a juvenile who is between 18 and 21 years old.”
Second, using the juvenile‘s age at the time of the initial disposition hearing would create an inconsistency. The court would first ask whether the juvenile “is over [21] at the time of the revocation proceeding” under subsection (d)(6) and answer using the juvenile‘s present age. If the juvenile is under 21, the court would then ask whether the he “is less than 18” or “is between 18 and 21” under subsection (d)(2) and would answer based on whether he was under 18 at the time of the initial disposition. No command or other textual indication in
For the aforementioned reasons, we hold that the maximum term of supervision that a court may impose under
Applying this formula to the present case, E.T.H. is correct that 18 months—the top of the Guidelines range that would have applied to a similarly situated adult and the lowest term under
Here, the district court ordered up to 1 month of detention, and, according to the government, E.T.H. served 28 days. See Gov‘t Br. 6 n.3. The maximum supervision term under
The government argues that even if we adopt E.T.H.‘s construction of
Our holding specifies that the top of the Guidelines range that would have applied to a similarly situated adult defendant is the maximum total period of detention and supervision that may be imposed upon revocation of a previously imposed term of supervision for a juvenile who is under age 21 at the time of revocation unless the court finds an aggravating factor to warrant an upward departure. At oral argument, the court inquired whether it was “undisputed that the district court did not grant [the government‘s] motion for upward departure,” and the government responded, “That‘s right. Well, didn‘t grant our motion for an upward departure for a lengthy detention sentence. . . .” Although the government would have us construe the district court‘s response to defense counsel‘s objection as the equivalent of an upward departure, we decline to do so. The record shows that the district court denied the government‘s motion for an upward departure and never again revisited the subject.
III. Conclusion
Accordingly, we reverse the judgment of the district court and remand with instructions to enter a sentence not to exceed the statutory maximum set forth supra.