Johnson v. United States

1 The current version of § 3583(e)(3) reads slightly differently, but for reasons discussed below, we focus on the law in effect at the time of Johnson’s initial crime.

2 Of the 11 Circuits to consider the issue, 9 had reached this conclusion. See, e. g., United States v. Koehler, 973 F, 2d 132 (CA2 1992); United States v. Malesic, 18 F. 3d 205 (CA3 1994); United States v. Cooper, 962 F. 2d 339 (CA4 1992); United States v. Holmes, 954 F. 2d 270 (CA5 1992); United States v. Truss, 4 F. 3d 437 (CA6 1993); United States v. McGee, 981 F. 2d 271 (CA7 1992); United States v. Behnezhad, 907 F. 2d 896 (CA9 1990); United States v. Rockwell, 984 F. 2d 1112 (CA10 1993); United States v. Tatum, 998 F. 2d 893 (CA11 1993). Two, the First and the Eighth, found that § 3583(e)(3) did grant district courts such power. See United States v. O’Neil, 11 F. 3d 292 (CA1 1993); United States v. Schrader, 973 F. 2d 623 (CA8 1992).

3 See, e. g., United States v. Eske, 189 F. 3d 636 , 539 (CA7 1999); United States v. Lominac, 144 F. 3d 308 , 312 (CA4 1998); United States v. Dozier, 119 F. 3d 239 , 241 (CA3 1997); United States v. Collins, 118 F. 3d 1394 , 1397 (CA9 1997); United States v. Meeks, 25 F. 3d 1117 , 1124 (CA2 1994) (addressing § 3583(g)). In contrast to these cases, the First and Eighth Circuits, relying on their broader construction of § 3583(e)(3), concluded that application of § 3583(h) did not violate the Ex Post Facto Clause. See United States v. Sandoval, 69 F. 3d 531 (CA1 1995) (unpublished), cert. denied, 519 U. S. 821 (1996); United States v. St. John, 92 F. 3d 761 (CA8 1996).

4 Indeed, the Sentencing Guidelines identify the effective date of § 3583(h) as September 13, 1994. United States Sentencing Commission, Guidelines Manual §7B1.3, comment., n. 2 (Nov. 1998) (USSG). So, too, have the federal courts. See, e. g., United States v. Hale, 107 F. 3d 526 , 529, n. 3 (CA7 1997).

5 The failure to specify an effective date evidences at least arguable diffidence on this point. Another section of the same Act that added § 3583(h) amended 18 U. S. C. §3553 to limit the applicability of some statutory minimum sentences. See § 80001, 108 Stat. 1985 . That amendment, the section made explicit, “shall apply to all sentences imposed on or after the 10th day beginning after the date of enactment of this Act.” § 80001(c), 108 Stat. 1986 .

6 We took a similar approach in Cisneros v. Alpine Ridge Group, 508 U. S. 10 (1993). The respondents in that case were private developers who had entered into contracts with the Department of Housing and Urban Development. When the Department sought to recalibrate payments it owed under the contracts, the developers sued, and the Ninth Circuit ruled that the Department’s proposed method of calculating payments was prohibited by the contracts. Congress subsequently passed legislation explicitly authorizing that method of calculation. The developers resisted application of that legislation to their contracts on the grounds that it retroactively deprived them of vested contractual rights, in violation of the Due Process Clause. We ruled (disagreeing with the Ninth Circuit’s earlier holding) that the Department’s methodology was acceptable under the contracts as signed. Finding the governmental action permitted by the old law, we declined to consider the constitutional consequences of a legislative attempt to change the applicable law.

7 The dissent offers an erudite explanation of the different senses of the two words, intending to demonstrate that Congress displayed “an admirably precise use of language,” by using “revoke” to mean “annul” and “terminate” to indicate that “[t]he supervised release is treated as fulfilled, and the sentence is complete.” Post, at 717 (opinion of Scalia, J.). That is virtuoso lexicography, but it shows only that English is rich enough to give even textualists room for creative readings. This one encounters serious difficulties; the very same section of the statute (as in effect at the time of Johnson’s offense) provides that if the person released is found in possession of a controlled substance, “the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” 18 U. S. C. § 3588 (g) (1988 ed.).

8 Justice Scalia, post, at 721, thinks the “term” survives only as a measure of duration, but of course the statute does not read “require the person to serve a term in prison equal to all or part of the term of supervised release ...

9 While this sense is of course less common, the most recent editions of the most authoritative dictionaries do not tag it as rare or obsolete. The Oxford English Dictionary gives five examples of this usage, albeit hardly recent ones: three are drawn from the late 16th century and the most recent from 1784. 13 Oxford English Dictionary 838 (2d ed. 1989). But the OED is unabashedly antiquarian; of its examples for the more common meaning of “revoke,” the most recent dates from 1873. Ibid. Webster’s, it should be noted, includes the less common meaning, without antiquarian reproach, in its third edition. Webster’s Third New International Dictionary 1944 (1981). As Justice Scalia remarks, in relying on an uncommon sense of the word, we are departing from the rule of construction that prefers ordinary meaning, see post, at 715. But this is exactly what ought to happen when the ordinary meaning fails to fit the text and when the realization of clear congressional policy (here, favoring the ability to impose supervised release) is in tension with the result that customary interpretive rules would deliver. See, e. g., Commissioner v. Brown, 380 U. S. 563 , 571 (1965) (recognizing “some ‘scope for adopting a restricted rather than a literal or *707 usual meaning of its words where acceptance of that meaning . . . would thwart the obvious purpose of the statute’ ”) (quoting Helvering v. Ham-mel, 311 U S. 504 , 510-511 (1941); In re Chapman, 166 U. S. 661 , 667 (1897) (“[Njothing is better settled, than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion”). When text implies that a word is used in a secondary sense and clear legislative purpose is at stake, Justice Scaua’s cocktail-party textualism, post, at 718, must yield to the Congress of the United States. (Not that we consider usage at a cocktail party a very sound general criterion of statutory meaning: a few nips from the flask might actually explain the solecism of the dissent’s gunner who “revoked” his bird dog, post, at 719-720, n. 4; in sober moments he would know that dogs cannot be revoked, even though sentencing orders can be. His mistake, in any case, tells us nothing about how Congress may have used “revoke” in the statute. The gunner’s error is, as Justice Scalia notes, one of current usage. (It is not merely that we do not “revoke” dogs in a “literal” sense today, as Justice Scalia puts it; we do not revoke them at all.) The question before us, however, is one of definition as distinct from usage: when Congress employed the modern usage in providing that a term of supervised release could be revoked, was it employing the most modern meaning of the term “revoke”? Usage can be a guide but not a master in answering a question of meaning like this one. Justice Scalia’s argument from the current unacceptability of the dog and ox examples thus jeopardizes sound statutory construction rather more severely than his sportsman ever threatened a bird.)

10 Justice Scalia attributes the strong preference for supervised release at the conclusion of a prison term to this Court, post, at 724, when that view of penal policy comes not from the Court but from Congress. The point is crucial. Our obligation is to give effect to congressional purpose so long as the congressional language does not itself bar that result. See, e. g., Holloway v. United States, 526 U. S. 1 , 9 (1999) (noting that statutory language should be interpreted in light of congressional policy); Caron v. United States, 524 U. S. 308 , 315 (1998) (rejecting petitioner’s reading of a statute because it “yields results contrary to a likely, and rational, congressional policy”). One who believes that courts must not look beyond text might well find any invocation of policy unjustified (even willful), at least when the policy does not rise unbidden from the words of the statute, but we have never treated the text as such a jealous guide and have traditionally sought to construe a statute so as to reach results consistent with what Chief Justice Taney called “its object and policy.” See United States v. Heirs of Boisdoré, 8 How. 113 , 122 (1849). And in what Chief Justice Marshall called the attempt “to discover the design of the legislature,” we have “seize[d] every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358 , 386 (1805).

11 The same is true of special parole, part of the required sentence for certain drug offenses. Though the special parole statute did not explicitly authorize reimposition of special parole after revocation of the initial term and reimprisonment, the Parole Commission required it. See 28 CFE § 2.57(c) (1999). Some courts have recently decided that this regulation is inconsistent with 21 U. S. C. § 841 (c) (1982 ed.), see, e. g., Evans v. United States Parole Comm’n, 78 F. 3d 262 (CA7 1996), but this does not affect the backdrop against which Congress legislated in 1984. As for probation, the sentencing court’s power to order a new term following revocation was the subject of some disagreement. The pre-Guidelines statute authorized the court to “revoke the probation and . . . impose any sentence which might originally have been imposed.” 18 U. S. C. §3653 (1982 ed.) (repealed). The statute thus clearly specified that the options for postrevoeation sentencing were those available at the original sentencing; courts disputed only whether probation was a “sentence” that could be imposed. See O’Neil, 11 F. 3d, at 298-299 (collecting eases). The dispute over what counted as a sentence does not affect the broader point that a court’s powers at the original sentencing are the baseline from which powers at resentencing are determined. Nor is our *712 analysis of supervised release drawn into question by the fact that courts could not, for violations of probation, impose imprisonment followed by probation. Probation, unlike supervised release, was an alternative to imprisonment. Courts did not have the power to impose both at the original sentencing, so their inability to do so at subsequent senteneings is no surprise.

12 The dissent seems to misconstrue our discussion of pre-Guidelines practice, see post, at 724-726, claiming that the practice is unilluminating because the possibility of parole inhered in any prison sentence. But our point simply is that, metaphysics aside, Congress gave no indication that it thought supervised release after reincarceration would be less valuable than reparole after reincarceration had been.

13 Nor does our traditional rule of lenity in interpreting criminal statutes demand a contrary result. Lenity applies only when the equipoise of competing reasons cannot otherwise be resolved (not the case here), and in any event the rule of lenity would be Delphic in this case. There is simply no way to tell whether sentencing courts given the option of supervised release will generally be more or less lenient in fixing the second prison sentence.

1 Describing the Court’s reading as “unconventional” makes it sound perfectly O. K. There are, after all, unconventional houses, unconventional hairdos, even unconventional batting stances, all of which are fine. Houses, hairdos, and batting stances, however, have an independent existence apart from convention, whereas words are nothing but a convention— particular sounds which by agreement represent particular concepts, and (in the case of most written languages) particular symbols which by agreement represent particular sounds. Thus, when the Court admits that it is giving the word “revoke” an “unconventional” meaning, it says that it is choosing to ignore the word “revoke.”

2 The Court is correct, ante, at 705, n. 7, that my suggested explanation of the difference between “terminate” and “revoke” does not comport with the use of “terminate” in § 3583(g). But the use of the term in that subsection also contradicts the Court’s explanation of the difference between the two terms — viz., that “terminate,” unlike in its view “revoke,” “eon-elude[s] any possibility of supervised release later,” ante, at 704. For the Court evidently believes (contrary to the use of “terminate” in § 3583(g)) that further supervised release is available when a supervisee is reimpris-oned for possession of a controlled substance. It would be “fundamentally contrary” to the congressional scheme, the Court asserts, if supervised release following reimprisonment were not available for “one who has already tried liberty and failed,” ante, at 709. But the use of “terminate” in *718 § 3588(g) prescribes just that. Further, § 3583(g) undermines the Court’s argument that because § 3583(e)(3) authorizes the court to “revoke a term of supervised release” and then to require “all or part of the term” to be served in prison, the revoked term must retain some metaphysical vitality. See ante, at 705-706. This is so because § 3583(g) provides that the court shall “terminate the term of supervised release” (hence extinguishing it even in the Court’s view), and yet goes on to provide that the court shall require the defendant to serve at least one-third of “the term of supervised release” in prison. See infra, at 721. So on either the Court’s interpretation of the difference between “terminate” and “revoke” or on mine, the use of “terminate” in § 3583(g) was a mistake — which is why Congress has since amended it to read “revoke.” See § 110505, 108 Stat. 2017 . See also Brief for United States 25, n. 20 ("Congress apprehended that the term ‘terminate’ was inappropriate [in § 3583(g)]”). If we both concede it was a mistake, that leaves my explanation of the difference between “terminate” in § 3583(e)(1) and “revoke” in § 3583(e)(3) uncontradicted.

3 As the Court suggests in its quotation of Webster’s Third’s definition of “RECALL,” see ante, at 706, the annulment may be only temporary (a “suspension”); but that is so only if there is some authority for repromúlgation after the revocation — which leaves the Court no further along than it was before it dipped into the more obscure meanings of “revoke”: it must identify some authority to reimpose supervised release. This blends into the next point made in text.

4 Whether one attributes any currency to “revoke” in the sense of “call back” depends, I think, on whether one counts as current usage figurative usage. The OED, while not showing the meaning “to call back” as obsolete, does indicate that its current usage is “chiefly fig[urative].” 13 Ox *720 ford English Dictionary 838 (2d ed. 1989) (OED). Just as current usage would allow one to say that "the emperor called back his decree,” so also it would allow one to say that the emperor “revoked” his decree in that figurative sense of “calling it back” — i e., in the sense of canceling it. It. is assuredly not current usage, however — I think not even rare current usage — to use “revoke” to connote a literal calling back. (“Since my bird dog was ranging too far afield, I revoked him.”) The Court chastises this example, suggesting that only a tippling hunter would “revoke” his bird dog, as “dogs cannot be revoked, even though sentencing orders can be.” Ante, at 707, n. 9. I could not agree more. However, the definition the Court employs (“call back” without the implication of cancellation) envisions that dogs can be revoked — thus illustrating its obscurity. The OED definition on which the Court relies, see ante, at 706, n. 9, defines “revoke” as “to recall; to call or summon back ... an animal or thing.” 13 OED 838 (2d ed. 1989). The first example it gives of this usage is as follows: “These hounds ... being acquainted with their masters watchwordes, eyther in revoking or imboldening them to serve the game.” Ibid. Of course the Court’s “not unheard of” usage, ante, at 706, is not limited to recalling dogs — oxen can be revoked as well, as the OED’s third example illustrates: “Ye must revoke The patient Oxe unto the Yoke.” 13 OED 838.

5 The concurrence adjusts for that inconvenient fact by simply changing the object of the verb, concluding that “after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated ... in whole or in part to confinement and to release . . . Ante, at 713 (Kennedy, J., concurring in part) (emphasis added). The statute, however, does not revoke “the right to be on supervised release”; it revokes the “term of supervised release” itself, see § 3583(e)(3), which is utterly incompatible with the notion that the term remains in place. Switching the object of “revoke” is no fair in itself, and it leaves the provision entirely redundant, since revoking “the right to be on supervised release” adds nothing to “requir[ing] the person to serve in prison all or part of the term,” § 3583(e)(3).

6 United States Sentencing Commission, Guidelines Manual eh. 1, pt. A, intro, comment. S (Nov. 1998) (USSG), is not to the contrary. The Court quotes the comment for the broad proposition that “[t]he Sentencing Guidelines, after all, ‘represent an approach that begins with, and builds upon,’ pre-Guidelines law.” Ante, at 710. The comment itself, however, makes the much more narrow point that data on sentences imposed pre-Guidelines were used as a “starting point” in devising sentencing ranges under the Guidelines. The sentence from which the Court quotes states: “Despite . . . policy-oriented departures from pre-guidelines practice, the guidelines represent an approach that begins with, and builds upon, empirical data.” USSG ch. 1, pt. A, intro, comment. 3. This sheds no light on the extent to which prior practice in matters other than length of sentence underlay the Guidelines, much less on the extent to which such prior practice is a meaningful guide to statutory interpretation in general — and even less to statutory interpretation pertaining to supervised release, which the Guidelines elsewhere refer to as “a new form of post-imprisonment supervision created by the Sentencing Reform Act,” id., eh. 7, pt. A, intro, comment. 2(b).

7 The Court also appeals to pre-Guidelines practice regarding probation and special parole. Ante, at 711-712, n. 11. The pre-Guidelines probation practice is altogether inapt, since the governing statute explicitly provided for resentencing, after violation, and specifically allowed the court to “impose any sentence which might originally have been imposed.” 18 U. S. C. §3653 (1982 ed.) (repealed). This makes it quite impossible for probation practice to support the Court’s “broader point that a court’s powers at the original sentencing are the baseline from which powers at resentencing are determined,” ante, at 711, n. 11; all it proves is that they are the baseline where the statute says so. Indeed, the fact that the statute found it necessary to say so tends to contradict the Court’s position. Special parole, while more akin to supervised release than either parole or probation, hardly provides dear support for the Court’s reading of § 3583(e)(3). In fact, the majority of Courts of Appeals have read the relevant statute regarding special parole, 21 U. S. C. § 841 (c) (1982 ed.) (repealed), as not allowing reimposition of special parole in circumstances analogous to those at issue here. See Manso v. Federal Detention Center, 182 F. 3d 814 , 817 (CA11 1999) (citing eases). The Court’s reliance on the Parole Commission’s 1977 interpretation of the special parole statute, see 28 CFR § 2.57 (e) (1999), is misplaced. The principle that Congress is presumed to legislate in light of existing administrative interpretations does not stretch to cover an administrative interpretation of a statute dealing with a different subject, of recent vintage, and unsupported by judicial opinion. Cf. Bragdon v. Abbott, 524 U. S, 624 , 645 (1998) (repetition of existing statutory language assumed to incorporate “uniform body of administrative and judicial precedent” that had “settled the meaning” of existing provision); Haig v. Agee, 453 U. S. 280 , 297 (1981) (assuming congressional awareness of “longstanding administrative construction”). Further, some courts have found it unclear whether the Parole Commission’s regulation itself envisions reimposition of special parole. See, e. g., Fowler v. United States Parole Commission, 94 F. 3d 835 , 841 (CA3 1996).