UNITED STATES OF AMERICA, v. JAMES LESLIE LITTLE, Defendant.
Case No. 1:21-cr-315-RCL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
3/14/22
Defendant James Leslie Little pleaded guilty in this matter for his participation in the unsuccessful insurrection at the United States Capitol on January 6, 2021. In its sentencing memorandum, the government requested that the Court impose a “split sentence” — thirty days of imprisonment followed by thirty-six months of probation. Gov‘t Sentencing Mem. (“Gov‘t Mem.“) 17, ECF No. 31. The Court ordered Little to respond to the issue of whether the Court has authority to impose a split sentence. Order, ECF No. 34. Little responded, Def.‘s Mem., ECF No. 37, and the government replied, ECF No. 39.
Upon consideration of the parties’ filings, appliсable law, and the arguments set forth at the sentencing hearing, the Court sentenced Little to sixty days’ imprisonment and thirty-six months’ probation. This memorandum opinion elaborates on the Court‘s reasoning as to why a split sentence is permissible under law and warranted by the circumstances of this case.
I. BACKGROUND
January 6, 2021, marked a tragic day in American history. The peaceful transfer of power — one of our most important and sacred democratic processes — came under a full-fledged assault. While the immediate threat may have subsided, the damage from January 6 persists. Riоters interrupted the certification of the 2020 Electoral College vote count, injured more than one hundred law enforcement officers, and caused more than a million dollars of property damage to the U.S. Capitol. Some of the rioters — now defendants in criminal cases — directly contributed to this violence by assaulting members of law enforcement or by planning, preparing, and facilitating this violence. Others, like Little here, did not directly assault officers. But even Little and those who engaged in this “lesser” criminal conduct were an essential component to the harm. Law-enforcement officers were overwhelmed by the sheer swath of criminality. And those who engaged in violence that day were able to do so because they found safety in numbers.
Petty offenders, however, are not eligible for supervised release. See
There is no question that the Court has the authority to sentence Little to a term of imprisonment or probation. See, e.g.,
January 6 defendants like Little present a unique challenge for the Court at sentencing. On one hand, the Court believes that some term of imprisonment is essential to “reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”
On the other hand, many of these cases — Little‘s included — demand lengthier involvement from the Court to “afford adequate deterrence to criminal conduct” and “protect the public from further crimes of the defendant.”
Fortunately, Little‘s sentencing does not present this dilemma. He is not remorseful for his conduct. Little boasted to others during and after the attack that, “We took the Capitol,” and “We are stopping treason! Stealing elections is treason! We‘re not going to take it anymorе!” And in his statements to the Federal Bureau of Investigation, Little continued to deflect responsibility for the violence onto Antifa, Black Lives Matter, and even the law enforcement officers overwhelmed by the rioters. He blamed Capitol Police officers for failing to prevent him from entering the Capitol. The letter that this Court received with excerpts from Little‘s social media further suggests that Little may not fully comprehend the wrongfulness of his actions. Little‘s criminal conviction is not the result of a “setup” or “trap,” ECF No. 40 at 3 — he chose to engage in criminal conduсt on January 6, despite the obvious indicators at the Capitol that his conduct was wrongful. And contrary to his Facebook post and the statements he made to the FBI, the riot was not “patriotic” or a legitimate “protest,” id. at 5 — it was an insurrection aimed at halting the functioning of our government. At his sentencing, Little did not retract any of his prior statements. He didn‘t apologize or acknowledge in any way that what he had done was wrong. Instead, he chose to criticize the FBI agents for not reading him his Miranda rights and requested that he be permitted to continue using firearms.
Only a split sentenсe would adequately serve the goals of sentencing described in
The Court now turns to explaining why a split sentence is legally permissible when the defendant is sentenced to imprisonment for a petty offense.
II. DISCUSSION
Whether courts hаve the authority to impose a “split sentence” — or a term of imprisonment followed by a term of probation — in petty offense cases is an open question in this Circuit. In fact, there‘s a dearth of authority on the issue nationwide. The Fourth Circuit is apparently the only Court of Appeals to address the issue and concluded that the practice is permitted. United States v. Posley, 351 F. App‘x 807, 809 (4th Cir. 2009) (“Unquestionably, the magistrate judge had the statutory authority under
The Court begins, as it must, with the text. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (internal quotation marks omitted). A Court must first determine whether the disputed statutory language “has a plain and unambiguous meaning.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)). “[I]f the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent,‘” a court need look no further. Id. at 340. Here, the statutory language, read in context, is dispositive.
A. Overview Of Sentencing In The Federal System And The General Rule in 18 U.S.C. § 3551
The Court begins with an overview of the relevant statutory scheme. Chapter 227 of Title 18 of the U.S. Code governs sentencing in the federal system. See
Two sections speak directly to the issue in this case. First,
An individual found guilty of an offense shall be sentenced, in accordance with the provisions of
section 3553 , to —(1) a term of probation as authorized by subchapter B;
(2) a fine as authorized by subchapter C; or
(3) a term of imprisonment as authorized by subchapter D.
A sentencе to pay a fine may be imposed in addition to any other sentence ....
The parties agree that
B. 18 U.S.C. § 3561 Specifically Authorizes Sentencing Courts To Impose A Term Of Probation If The Defendant Is Sentenced To Imprisonment For Only Petty Offenses
The second relevant section,
(a) In General. — A defendant who has been found guilty of an offense may be sentenced to a term of probation unless —
(1) the offense is a Class A or Class B felony and the defendant is an individual;
(2) the offense is an offense for which probation has been expressly precluded; or
(3) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.
To begin, the Court will divide Section 3561 into its component parts. The statute begins with a grant of authority: when a defendant has been found guilty of a federal offense, he “may be sentenced to a term of probation.”
There are two possible ways that the petty-offense clause may interact with the language preceding it. Under the grammatical rule of the last antecedent, “a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Paroline v. United States, 572 U.S. 434, 447 (2014) (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)) (ellipsis in original). The last antecedent here is the noun “offense.” But is the “offense” in question “the same or a different offense” or only “a different offense“? Grammatically speaking, the “offense” at issue — and the backward reach of the petty-offense clause — turn on whether the word “same” functions as an adjective or a pronoun. If “same” is a pronoun, then the petty-offense clause would apply only to “a different offense” because a limiting clause
Here, the petty-offense clause extends to the “the same or a different offense” in its entirety because “same” functions as an adjective. The Court begins with the phrase itself. The phrase lacks “unexpected internal modifiers or structure.” Lockhart v. United States, 577 U.S. 347, 352 (2016). No comma separates the phrases “the same” and “or a different offense.” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 161 (2012) (explaining that punctuation “will often determine whether a modifying phrase or clause applies to all that preceded it or only to a part“). While “different offense” is set off by the word “a,” the Court agrees with the government that this indefinite article is grammatically necessary. The determiner “the” preceding the word “same” would not naturally apply to an otherwise undefined “different offense.” Stated differently, the sentence would be grammatically incorrect without the “a,” and drafters are “presumed to be grammatical in their compositions.” Scalia & Garner, supra, at 140. The phrase thus lacks obvious indicators that “same” is functioning as a pronoun or that the backward reach of the petty-offense clause should be limited to only “a different offense.”
Moving beyond the phrase itself, there are additional indicators in the text that “same” is functioning as an adjective. First, the last antecedent rule would apply with equal force to “the same” if it was a pronoun. Thus, the reader would be required to look backward to determine the what “the same” is referring to. See Scalia & Garner, supra, at 144 (“A pronoun ... generally refers to the nearest reasonable antecedent“). Here, that is a “heavy lift.” Lockhart, 577 U.S. at 351. The reader would be required to reach back across several nouns within the subprovision (i.e., “imprisonment,” “defendant“), across two subprovisions within the section, and past another noun found in the section‘s introductory language (i.e., “term“). It may be improbable that “same” would rеfer to these other words in the context of the statute, but the clearest and closest indicator that “same” is referring to “offense” is the subsequent reference to “offense.” Second, “same” is not used as a pronoun in the two preceding provisions to describe the instant offense for which the defendant is being sentenced. See
When determining the meaning of statutes, courts also “may consider the common usage” of the relevant terms or phrases. Inner City Broad. Corp. v. Sanders, 733 F.2d 154, 158 (D.C. Cir. 1984) (citing Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 109 (1980). Congress‘s common usage of the phrase “the same or a different” in other statutes also supports the Court‘s conclusion. When used as part of the phrase “the same or a different” in other provisions of the U.S. Code, Congress consistently uses “the same” as an adjective modifying the noun following it. See, e.g.,
A survey of the phrase‘s common usage across other legal contexts also confirms the Court‘s interpretation. Again, when used in the phrase “the same or a different,” the “same” is consistently used as an adjective to modify the subsequent noun. See, e.g.,
Having considered these textual indicators, context, and common usage, the Court is persuaded that “same” is functioning as an adjective in this context. The petty-offense clause clearly mоdifies “offense,” and the particular “offense” at issue is described in the preceding phrase — “the same or a different.” “When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Paroline v. United States, 572 U.S. 434, 447 (2014) (quoting Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)); see 2A Shambie Singer & Norman J. Singer, Sutherland Statutes and Statutory Construction § 47:33 (“The last antecedent is ‘the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.‘” (emphаsis added)). Thus, the reach of the petty-offense
While
The Court respectfully disagrees that “a plain reading” of
Finally, Little proposes another interpretation of
C. Section 3561(a)(3) Provides An Exception To Section 3551‘s General Rule That Imprisonment and Probation Are Mutually Exclusive
Having determined the meaning of
First, a plain-text reading of the statute leaves open the possibility of exceptions to the default rule that imprisonment and probation are mutually exclusive. Recall the opening provision of
To the extent that there is any lingering ambiguity, other canons of interpretation only reinforce this conclusion. Even without the “otherwise specifically provided” language, “it is a commonplace of statutory construction that the specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)). This canon is “most frequently applied to statutes in which a general permission or prohibitiоn is contradicted by a specific prohibition or permission. To eliminate the contradiction, the specific provision is construed as an exception to the general one.” Id. (citing Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). That is the case here: Section 3561(a)(3)‘s grant of authority provides a narrow exception to Section 3551(b)‘s general rule.
This canon ensures that all of Congress‘s goals set forth in the text are implemented. As a leading treatise explains, “the specific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence.” Scalia & Garner, supra, at 183. The context of these statutes illustrates this principle. A court sentencing a defendant to a term of imprisonment may generally “include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment.”
But supervised release is not authorized for petty offenses. See
A contrary interpretation — that the Court must “choose between probation and imprisonment when imposing a sentence for a petty offense,” Spencer, slip op. at 5 — results in surplusage. But the Court must be careful to, if possible, give meaning and effect to every word and provision. Mercy Hosp., 891 F.3d at 1068. If Section 3551 requires imprisonment and probation to be mutually exclusive in all circumstances, then there are no circumstances in which Section 3561‘s narrow carveout for petty offenses would apply. Stated differently, the language in Section 3561(a)(3) would cease to have any meaning. The Court will not adopt such an interрretation.
In sum, despite the language in Section 3551, Section 3561(a)(3) permits a sentencing judge to impose a term of probation at the same time as a term of imprisonment when a defendant is sentenced to imprisonment for only a petty offense or offenses.
III. CONCLUSION
For the foregoing reasons, the Court concludes that imposition of sixty days’ imprisonment and thirty-six months’ probation is permitted by statute and warranted by the circumstances of this case. The Court will also impose a ten-dollar special assessment and $500 restitution, payable to the Architect of the Capitol.
Date: 3/14/22
Royce C. Lamberth
United States District Judge