UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v.

No. 22-cr-55 (DLF) MARCOS PANAYIOTOU, Defendant.

MEMORANDUM OPINION

For his conduct at the United States Capitol on January 6, 2021, defendant Marcos

Panayiotou pleaded guilty to one count of Parading, Demonstrating, or Picketing in a Capitol

Building,

(e)(2)(G), Dkt. 22. At sentencing, the government urged the Court to

impose a sentence of “45 days’ incarceration followed by 36 months’ probation.” Gov’t

Sentencing Mem. at 1, Dkt. 27. The Court held, as it has in previous cases,1 that federal law

authorizes no such sentence: “[A] term of supervised release [may] follow imprisonment,”

U.S.S.G. § 5D1.1(a) (emphasis added), but a term of probation is “an alternative to incarceration”

for a given criminal offense, id. ch. 5, pt. B intro. cmt. (emphasis added).

Judgment was docketed on January 19, 2023, Dkt. 32. But because this question has

proven to be a recurring issue in prosecutions related to the January 6, 2021 Capitol riot, and

because it has divided the judges of this Court,2 this opinion further explains the reasons for the

Court’s ruling: namely, why a compound sentence of a term of imprisonment and a term of

probation, jointly imposed for conviction of a single petty misdemeanor offense, is unlawful.

1 For the Court’s first such ruling, see United States v. Williams, 21-cr-45, Dkt. 42 (Feb. 9, 2022). 2 To date, at least nine judges have adopted the government’s position. See Gov’t Sentencing Mem. at 25–26; see also, e.g., United States v. Little,

(D.D.C. 2022) (RCL). I. STATUTORY BACKGROUND

A. General Framework

The Double Jeopardy Clause bars a court from imposing “multiple punishments for the

same offense.” Jones v. Thomas,

(1989) (citing U.S. Const. amend. V). “With

respect to cumulative sentences imposed in a single trial,” the sole test is whether “the sentencing

court . . . prescrib[ed] [a] greater punishment than the legislature intended.” Missouri v. Hunter,

(1983); see Jones,

(“[S]entencing courts [cannot] exceed, by

the device of multiple punishments, the limits prescribed by the legislative branch of government,

in which lies the substantive power to define crimes and prescribe punishments.”).

In the federal system, criminal sentencing is governed by the Sentencing Reform Act of

1984 (SRA), which overhauled the U.S. sentencing regime and to this day “comprehensively

delineate[s] the federal sentencing system.” Cunningham v. California,

(2007).

The Act rewrote chapter 227 of the Federal Criminal Code, which now opens by defining a new

set of “[a]uthorized sentences” structured as follows:

An individual found guilty of an offense shall be sentenced, in accordance with the provisions of [18 U.S.C. §] 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 sentence to pay a fine may be imposed in addition to any other sentence. A sanction authorized by [18 U.S.C. §§] 3554, 3555, or 3556 may be imposed in addition to the sentence required by this subsection.

SRA,

(a)(2), § 3551(b),

, 1988 (1984); accord

(b) (2018). Subchapter A of chapter 227 contains general provisions, including § 3551; and

the remaining three subchapters cover probation, fines, and imprisonment, respectively. See

generally 18 U.S.C. ch. 227.

2 B. The SRA and Court Supervision

The SRA abolished “the previous . . . parole release system,” SRA § 236(a)(1), and

established a new regime consisting of two alternative means of court supervision. One,

supervised release, allows for “postconfinement monitoring overseen by the sentencing court.”

Johnson v. United States,

(2000) (emphasis added). The other, probation, is “a

sentence in and of itself.” U.S.S.G. ch. 5, pt. B intro. cmt.3 Probation, unlike supervised release,

is enumerated in the set of distinct punishments available under § 3551. See

(b).

And while “Probation” occupies its own dedicated subchapter in the SRA, see 18 U.S.C. ch. 227,

subch. B, a court’s authority to impose supervised release is instead discussed within the

subchapter for “Imprisonment,” see

.

In almost all respects, “[t]he conditions of supervised release authorized by statute are the

same as those for a sentence of probation.” U.S.S.G. ch. 7, pt. A, note 2(b). The one exception is

that, as a condition of probation, a sentencing judge may impose a period of intermittent

confinement in prison; a court cannot impose such additional prison time for a defendant who is

on postconfinement supervised release. See

(b)(10), 3583(d).4 In other words,

while both probation and supervised release entail the same range of legal consequences, those

consequences take effect at different periods of time relative to incarceration: Probation is a

standalone sentence that might allow for intermittent imprisonment during its term, while

supervised release—as the name implies—follows a term of imprisonment that has been

completed in full. Thus, for example, “if the court wishes to impose a ‘split sentence’ under which

3 The Sentencing Guidelines are advisory, see United States v. Booker,

(2005), and they do not apply to petty offenses, see U.S.S.G. § 1B1.9. The Court cites them only for their persuasive value in interpreting the SRA. 4 The Court may, however, impose intermittent confinement for a violation of the terms of supervised release.

(d). 3 the defendant serves a term of imprisonment followed by a period of community confinement or

home detention,” it “must” impose “[a] term of supervised release” that follows a prison term,

rather than a sentence of probation. U.S.S.G. § 5D1.1 app. note 4.

The SRA also sets the authorized durations of probation and supervised release. Those

rules by default turn on an SRA-defined “classification” of each offense.

. For

felonies (crimes with a maximum prison term greater than one year,

§ 3559(a)(1)–(5)), the

maximum term of supervised release is five years, three years, or one year, depending on the class.

Id. § 3583(b)(1)–(2). For Class A misdemeanors (crimes with a maximum prison term greater

than six months but no more than a year, id. § 3559(a)(6)), the maximum term of supervised release

is one year. Id. § 3583(b)(3). And for “petty offenses” (crimes with a maximum prison term of at

most six months), no supervised release is permitted at all. Id.; see id. § 19 (defining “petty

offense” as a Class B misdemeanor, Class C misdemeanor, or infraction); id. § 3559(a)(7)–(9)

(maximum prison terms for Class B misdemeanors, Class C misdemeanors, and infractions all at

most six months). For all crimes, the maximum term of probation is substantially higher than the

maximum term of post-imprisonment supervised release. All felonies and misdemeanors carry a

maximum probation term of five years,5

(c)(1)–(2), and infractions carry a

maximum of one year,

§ 3561(c)(3).

The SRA contains an additional constraint on a sentencing judge’s use of probation,

(a)(3), the provision at issue here. As enacted in 1984, the SRA precluded a court

5 Probation is unavailable for individual defendants convicted of crimes that have a five-year period of supervised release, Class A and Class B felonies, which are the most serious offenses in the Criminal Code.

(a)(1). While that at first might seem anomalous, it is consistent with a graduated penalty scheme because probation is only a substitute for a term of imprisonment. In other words, this rule precludes a court from imposing a probation-only sentence for particularly grave felonies.

4 from imposing probation where “the defendant is sentenced at the same time to a term of

imprisonment for the same or a different offense.” SRA sec. 212(a)(2), § 3561(a)(3) (emphasis

added). That provision meant that probation was not just unavailable for an offense when

imprisonment was imposed for the same offense, but also when the defendant was simultaneously

sentenced to imprisonment on any other offense. That is, under this provision, imprisonment and

probation were to be mutually exclusive punishments not just for a given offense, but for a

defendant’s sentence as a whole.

In 1994, Congress amended § 3561(a)(3) by inserting the language the government now

relies on. Specifically, it amended the statute by providing that probation is unavailable if “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.” Violent Crime Control and Law Enforcement Act of 1994,

,

, 2096 (emphasis added); see

(a)(3). The government contends that, as amended, this statute empowers a court to impose

both imprisonment and probation for a single petty offense. The Court disagrees for the reasons

that follow.

II. ANALYSIS

The defendant in this case pleaded guilty to a single misdemeanor offense.

(e)(2)(G); see

§ 5109(b).6 The question before the Court is whether the 1994 addition

of “that is not a petty offense” to

(a)(3) allows the Court to sentence such a

6 The Court concluded that a sentence of 36 months’ probation is sufficient but not greater than necessary to ensure that the purposes of sentencing are achieved. Judgment at 2. During his three- year period of probation, the defendant will be subject to various conditions, including 14 days’ intermittent confinement.

. Among other things, the three-year term of supervision, coupled with a short term of intermittent confinement, will help ensure the safety of the public and deter the defendant from committing future criminal acts.

5 defendant to both a term of imprisonment and a term of probation. The text and structure of the

SRA make clear that the answer is no.

A. Text

1.

The framework provision of the SRA,

, states that a defendant “shall be

sentenced . . . to a term of probation as authorized by subchapter B; a fine as authorized by

subchapter C; or a term of imprisonment as authorized by subchapter D.”

(b)

(emphasis added). While “or” might sometimes mean an inclusive “and/or,” here, it is clear that

“or” requires a court to choose one, and only one, of the three options. That is so because the

subsequent sentence of § 3551(b) further provides that “[a] sentence to pay a fine may be imposed

in addition to any other sentence,” id. (emphasis added), and that certain other penalties—

forfeiture, notice to victims, and restitution, id. (citing 18 U.S.C. §§ 3554–3556)—may also be

imposed in addition to any other sentence. By negative implication, the penalties not explicitly

listed in this list—imprisonment and probation—may not be imposed together. “This is the maxim

of expressio unius est exclusio alterius at work: Mention of one thing”—fines imposed on top of

imprisonment or probation—“implies exclusion of another thing”—probation imposed on top of

imprisonment. Nasdaq Stock Market LLC v. SEC,

(D.C. Cir. 2022) (cleaned

up). Were the word “or” to be interpreted otherwise, the proviso allowing for a fine “in addition

to any other sentence” would be “render[ed] superfluous.” Circuit City Stores, Inc. v. Adams,

(2001) (quoting Pa. Dep’t of Pub. Welfare v. Davenport,

(1990)).

Indeed, the government appears to concede this point. Its sentencing memorandum

interprets § 3551 to mean that “a judge must sentence a federal offender to either a fine, a term of

probation, or a term of imprisonment.” Gov’t Sentencing Mem. at 28 (emphasis added) (quoting

6 United States v. Kopp,

(7th Cir. 2019)); see also Kopp,

(explaining that a court must “select[] one of those options”). The text of § 3551 unambiguously

prohibits a court from imposing a sentence of both probation and imprisonment—a result that is,

for the reasons explained supra Part I and further below, consistent with the structure of the SRA

as a whole.

2.

Prior to the 1994 amendment, § 3561 went further than § 3551 by precluding a sentence of

probation not just on the same count on which the court ordered imprisonment, but also whenever

the court sentenced the defendant to imprisonment on any count. It is undisputed that the addition

of “that is not a petty offense” to the end of that phrase abrogated that rule (that imprisonment on

one count precludes probation on all others) where the imprisonment is imposed for a “different”

petty “offense.” But the government argues that the 1994 amendment did more than that. On the

government’s reading, the amendment also permits a court to impose probation for a count when

imprisonment is imposed on the “same” petty “offense”; the additional 1994 language purportedly

modifies both “same” and “different offense.” But this conclusion is far from clear based on the

text of § 3561, let alone the remainder of the SRA.

In general, two competing canons of statutory interpretation control whether a phrase

modifies part or the whole of a preceding term. One, the series qualifier canon, teaches that “a

modifier at the end of the list normally applies to the entire series.” Facebook, Inc. v. Duguid,

(2021) (cleaned up). The other, the “rule of the last antecedent,” provides that

“a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase

that it immediately follows.” Lockhart v. United States,

(2016) (alteration in

original) (quoting Barnhart v. Thomas,

(2003)). The decision of which rule

7 reflects the correct reading of a statute is necessarily context dependent. Id. at 352.

Here, choosing between these two options in isolation is difficult because neither reading

implies an artful drafting by Congress. Under the series qualifier approach, the phrase “that is not

a petty offense” would directly modify the phrase “same . . . offense.” The relevant part of the

statute relied on the government would effectively read: “the same . . . offense that is not a petty

offense.” But the restrictive “that” clause would not be used by an ordinary English speaker to

modify “the same offense” because the “offense” has already been referenced previously—the

sentence in full is: “A defendant who has been found guilty of an offense [may not be sentenced

to probation if he is] sentenced at the same time to a term of imprisonment for the same . . . offense

that is not a petty offense.” Because “the same offense” refers backed to the already-mentioned

“offense”—i.e., the offense for which the defendant is being sentenced—a more natural phrasing

would be: “sentenced at the same time to a term of imprisonment for the same offense if it is not a

petty offense.”7 No such problem arises for the phrase “a different offense that is not a petty

offense,” because the phrase “a different offense” is a new noun that suggests a range of possible

offenses in turn restricted by “that is not a petty offense.” That divergence makes it strange to read

the phrase as qualifying both parts of the series—the same offense and a different offense.

The last antecedent approach, however, creates its own problems. Under this approach,

“that is not a petty offense” refers only to “a different” offense, not “the same” offense. But for

there to be multiple antecedent nouns, the Court must read in an omitted word “offense” after the

7 Or, more likely still, Congress would more naturally choose to amend § 3551, not § 3561, to allow for a compound sentence of probation on top of imprisonment for petty misdemeanors, just as § 3551 expressly allows for fines and certain other penalties to be imposed on top of other criminal sanctions.

8 word “same”: i.e., “the same offense or a different offense that is not a petty offense.”8 More

naturally, the adjectival “same” would be distributed to modify the later “offense” that follows the

word “different.” The choice of phrase “same or different offense” makes more sense considering

the statutory history: That phrase came from the pre-1994 version of the statute passed under the

SRA, see SRA sec. 212(a)(2), § 3561(a)(3). In that pre-1994 version, nothing turned on whether

the section provided that probation was barred where imprisonment was imposed “for the same or

a different offense” or “for the same offense or a different offense”: The meaning would be the

same regardless. That vestigial language becomes more troublesome, however, upon the addition

of the 1994 modifier.

“While [the] rules [of grammar] may be a useful guide to statutory meaning, they cannot

resolve meaning when divorced from the text and structure of the statute.” Sandoz Inc. v. Becerra,

22-5202,

, at *9 (D.C. Cir. Jan. 10, 2023); see also Yellen v. Confederated Tribes

of Chehalis Rsrv.,

(2021) (“[T]he most grammatical reading of a sentence

in a vacuum does not always produce the best reading in context.”). Because “meaning—or

ambiguity—of certain words or phrases may only become evident when placed in context,” FDA

v. Brown & Williamson Tobacco Corp.,

(2000), the Court next considers “the

broader context of the statute as a whole,” Robinson v. Shell Oil Co.,

(1997);

see also Davis v. Mich. Dep’t of Treasury,

(1989) (“It is a fundamental canon

of statutory construction that the words of a statute must be read in their context and with a view

to their place in the overall statutory scheme.”).

8 The government agrees that this phrasing “would imply that the final modifier—i.e., ‘that is not a petty offense’—applies only to ‘different offense.’” Gov’t Sentencing Mem. at 31. 9 B. Structure

The structure of the SRA confirms what § 3551 makes clear: A court cannot impose a

sentence of imprisonment and a sentence of probation for a single offense. Section 3561 adds

further restrictions on probation: It forbids probation where the defendant, for instance, has been

convicted of a Class A or B felony, id. § 3561(a)(1), or has simultaneously been sentenced to

prison for a different nonpetty offense, id. § 3561(a)(3). Those clauses add to § 3551’s limitation

on the use of probation—they do not displace its basic restriction. In the Court’s view, the SRA

as a whole, see supra Part I, underscores that probation is a separate sentence, an alternative to

imprisonment, while supervised release is a supplement and is imposed in tandem with

imprisonment. And in particular, three salient provisions of the SRA highlight the obvious

incompatibility of the government’s reading of § 3561 and the remainder of the Act.

1. Authorized Terms of Supervised Release

Most glaringly, reading § 3561 to permit an imprisonment-then-probation sentence would

transform it into an end-run around two clear commands of Congress: First, that the SRA’s

mechanism for “postconfinement monitoring” is supervised release, Johnson,

, and

second, that no supervised release is permitted for petty offenses,

(b).

The SRA’s ban on postconfinement supervision for petty offenses was a considered choice

of Congress. The original version of the SRA permitted up to one year of supervised release for

all misdemeanor offenses. See SRA sec. 212(a)(2), § 3583(b)(3). But in 1987, Congress added

the phrase “other than a petty offense” to § 3583(b) to expressly exclude petty offenses from

supervised release entirely. See

,

, 1267. The government’s

reading would thus be inconsistent with Congress’s judgment, formalized in the SRA and its 1987

amendment, that defendants convicted of petty offenses should not be subject to postconfinement

10 restrictions on their liberty.

Indeed, the government’s reading would turn the SRA’s scheme for postconfinement

supervision on its head. The SRA sets up diminishing lengths of maximum postconfinement

supervised release based on the classification of the offense: Following imprisonment, the

maximum authorized term of supervised release for Class A and B felonies is five years; for Class

C and D felonies, three years; for Class E felonies and nonpetty misdemeanors, one year; and for

petty offenses, no time at all.

(b). But under the government’s theory, prosecutors

could circumvent this rule for a petty misdemeanor—and only for a petty misdemeanor—and

subject a petty offender to five years of probation with all the same restrictions as a period of

supervised release. This result would not only be at odds with Congress’s deliberate decision to

eliminate supervised release for petty offenses, it also would authorize the same postconfinement

supervision period as that reserved for the most serious felonies and nearly double that allowed for

Class C and D felonies. This inversion occurs because, for all offenses, petty and nonpetty, the

maximum term of probation is always substantially greater than the maximum term of supervised

release. Those term differences make sense when probation is a substitute for, not a supplement

to, incarceration for a given offense, but they would become absurd if probation could be used

together with imprisonment only for petty offense convictions.

It is no answer to say that this outlier five-year period would be a term of probation rather

than a term of supervised release—the two are functionally the same. As the government aptly

puts it:

In passing the Sentencing Reform Act, Congress sought generally to abolish the practice of splitting a sentence between imprisonment and probation because “the same result” could be accomplished through a “more direct and logically consistent route,” namely the use of supervised release as set out in

and 3583. S. Rep. No. 98-225,

, at *89; accord United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 5B1.1, Background.

11 Gov’t Sentencing Mem. at 29. If Congress wished to undo its prohibition on postconfinement

monitoring for petty offenses, the most natural choice would have been to amend § 3583(b), the

section that Congress amended in 1987 to implement its prohibition in the first place. In contrast,

in the government’s view, in six words—“that is not a petty offense”—Congress not only overrode

its own 1987 amendment, it also imposed, without elaboration, five times as much supervision as

previously authorized for petty offenses. That interpretation would violate the oft-repeated canon

that Congress does not “hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns,

(2001).

2. Intermittent Confinement

The government’s view would also imply that Congress, in 1994, sub silentio displaced

the clear limits it has placed on judges’ imposition of imprisonment as a condition of probation.

The SRA allows that “[t]he court may provide, as further conditions of a sentence of probation . . .

that the defendant . . . remain in the custody of the Bureau of Prisons during nights, weekends or

other intervals of time, totaling no more than the lesser of one year or the term of imprisonment

authorized for the offense, during the first year of the term of probation or supervised release.”

(b)(10) (emphasis added). That option is unavailable, in contrast, during a term of

post-imprisonment supervised release.

§ 3583(d).

Section 3563(b)(10) allows for a judge to impose only intermittent confinement as a

condition of probation. “Nights, weekends, or other intervals of time” refers to short periods of

confinement; under the ejusdem generis canon, the phrase “other intervals of time” must be

“construed to embrace only objects similar in nature to those objects enumerated by the preceding

specific words.” Wash. State Dep’t of Social & Health Servs. v. Guardianship Est. of Keffeler,

(2003) (quoting Circuit City, 532 U.S. at 114–15). Thus, in context, the type

12 of commitment authorized as a condition of probation consists only of short periods of

confinement, which can be interspersed throughout a period of probation. See, e.g., United States

v. Forbes,

(9th Cir. 1999) (rejecting a sentence of six months’ imprisonment

imposed continuously, rather than intermittently, as a condition of probation).

In other words, the availability of intermittent confinement presents courts with a choice

for petty offenses: Sentence a defendant to up to six months’ imprisonment with no supervised

release, or opt for a sentence of up to five years’ probation, with up to six months of intermittent

confinement interspersed during the first year. See S. Rep. No. 98-225, at 98 (Intermittent

confinement “is not intended to carry forward the split sentence provided in [the pre-SRA]

, by which the judge imposes a sentence of a few months in prison followed by

probation.” (emphasis added)); see also, e.g., United States v. Mize, 97-40059-01,

, at *2 (D. Kan. Mar. 18, 1998) (“[M]aking a 30 consecutive day term of prison a condition

of probation is too similar to the ‘split sentence’ approach which Congress intended to abolish

with” the SRA.). The government’s reading would effectively bypass that constraint: A court

could, instead, impose a straight term of imprisonment followed by an additional straight period

of probation, a compound sentence that was banned by the SRA and replaced by the intermittent-

confinement regime.

The Court is sympathetic to the fact that, during the COVID-19 pandemic especially, it has

at times been impractical for courts to impose intermittent confinement as a condition of probation.

In fact, until recently, this Court declined to impose a condition of intermittent confinement, and

instead imposed either home confinement or home detention, due to concerns about spreading the

virus within detention facilities. See Sentencing Tr. at 26, United States v. Williams, 21-cr-45

(Feb. 9, 2022), Dkt. 42. During this same period, “the government . . . refrained from requesting

13 such a sentence in Capitol breach cases given the potential practical and logistical concerns

involved when an individual repeatedly enters and leaves a detention facility during an ongoing

global pandemic.” Gov’t Sentencing Mem. at 36. But there is no question that Congress has been

well aware of the COVID-19 pandemic and its health risks and the accompanied burdens that it

has imposed on the prison system. See, e.g., Coronavirus Aid, Relief, and Economic Security

(CARES) Act,

(b)(2),

, 516 (2020) (authorizing the

Attorney General to “lengthen the maximum amount of time for which” the Bureau of Prisons “is

authorized to place a prisoner in home confinement” under

(c)(2)). Still, it has

chosen not to create an exception to the intermittent-confinement regime. This Court has no

authority to overrule its judgment.

3. Revocation

Finally, the government’s view runs headlong into the SRA’s separation of its provisions

for revocation of probation,

, and those for revocation of supervised release,

§ 3583(e), (g)–(i). When a defendant violates a condition of probation, the sentencing judge may

“revoke the sentence of probation and resentence the defendant under subchapter A,” i.e., choose

from the slate of options provided by § 3551: probation, fine, and imprisonment. Id. § 3565(a)(2).

For a supervised release violation, in contrast, no new sentence is imposed; the court may,

however, “require the defendant to serve in prison all or part of the term of supervised release

authorized by statute.” Id. § 3583(e)(3).

Resentencing from scratch for a probation violation makes sense where probation has been

used as an alternative to a term of imprisonment. But under the government’s theory, it leads to

bizarre results. Take, for example, the government’s proposed sentence here. If the Court were

to hand down a sentence of “45 days’ incarceration followed by 36 months’ probation,” Gov’t

14 Sentencing Mem. at 1, and the defendant violated a condition of his probation, the Court could

again, in the government’s view, impose a new sentence of imprisonment and probation. In turn,

if the defendant violated probation once more, the same sentence could follow—and so on, ad

infinitum. In contrast, a violation of supervised release can also lead to a sentence of imprisonment,

but it is a supplemental prison term that Congress has appropriately cabined: When a court

calculates the permissible period of supervised release following imprisonment for a violation of

supervised release, any time already served for an earlier supervised release violation is subtracted

from the maximum, so that supervised release eventually runs out and no more can follow a period

of confinement for a violation. See

(h). Thus, when no more supervised release

can follow, the defendant has completed his sentence upon release from imprisonment. No such

constraint exists for probation violations because there is no reason for one: Congress never

contemplated in the SRA that probation could be imposed in addition to a term of imprisonment.

As a consequence, the government’s reading could lead to an infinite loop of imprisonment,

probation, violation, imprisonment, and probation again—a nonsensical result that would

inexplicably apply to petty offenses alone.

* * *

The government’s reading of § 3561 expressly contravenes one provision of the SRA

(§ 3551, which prohibits the joint imposition of probation and imprisonment for a single offense)

and creates an irreconcilable conflict with at least three others: the bar on supervised release for

petty offenses,

(b)(3); the restrictions on intermittent confinement imposed as a

condition of probation,

§ 3563(b)(10); and the rules for revocation of probation and supervised

release, id. §§ 3565, 3583(e), (g)–(i). It also undermines the basic distinction between probation

and supervised release consistently reaffirmed throughout the SRA. A narrower reading of the

15 1994 amendment, in contrast, renders the statutory scheme coherent and consistent.

C. The Government’s Counterarguments

The government’s remaining arguments—in this case and others before the Court—fail to

persuade.

First, the Court is unconvinced that § 3561 must override other provisions of the SRA

because it is later-enacted and purportedly more specific than the framework created by § 3551.

That interpretive rule is undoubtedly a helpful guide when a subsequent statute might be

interpreted as an exception to a preexisting general rule. See, e.g., United States v. Est. of Romani,

(1998). But for the reasons already explained, it makes little sense to interpret

§ 3561 as a wrench thrown into the underlying framework of the SRA. In interpreting

comprehensive schemes like the SRA, the Court must be equally if not more mindful of the

Supreme Court’s instruction that statutes must be read to be harmonious, coherent, and consistent;

and that implied repeals are disfavored. “[A] specific statute will not be controlled or nullified by

a general one,” Morton v. Mancari,

, 550–51 (1974), but neither will a later-enacted

statute be construed to “repeal” the earlier one unless such intent is “clear and manifest,”

at 551

(quoting United States v. Borden Co.,

(1939)). “When confronted with two

Acts of Congress allegedly touching on the same topic . . . [courts] come armed with the strong

presumption that repeals by implication are disfavored and that Congress will specifically address

preexisting law when it wishes to suspend its normal operations in a later statute.” Epic Sys. Corp.

v. Lewis,

(2018) (cleaned up). And even if there were any ambiguity

remaining after the Court’s consideration of the SRA’s text, structure, and statutory history—

which there is not—the rule of lenity too would militate against the government’s reading. See

United States v. Bass,

(1971); cf. Hunter,

(holding that

16 authorization of cumulative sentences for the same offense requires “clearly expressed legislative

intent”).

Second, it is incorrect that the Court’s interpretation would render the 1994 amendment to

§ 3561 superfluous. The function of the 1994 amendment was not to override § 3551 or to create

an exception to it, but rather to pull back how far § 3561 previously extended. Specifically, it

makes a sentence of probation possible on a charged offense where a sentence of imprisonment

was imposed on another, petty count—which was not possible under the original text of § 3561.

Put another way, when a court imposes a term of imprisonment for a petty offense, all

postconfinement supervision remains barred for that offense because no term of supervised release

is permitted. But a court can now impose a sentence of probation on a different count, including

on a different petty offense.9 This understanding of the 1994 amendment, unlike the reading

proposed by the government, leaves the basic distinction between probation and supervised release

intact, thereby avoiding the consequences Congress did not likely intend, see supra Section II.B.

At the same time, it allows for the flexibility to sentence a defendant to probation on one count

when imprisonment has been imposed on another, but only where imprisonment is imposed on a

petty offense—i.e., when the prison sentence does not allow for a period of supervised release.

Finally, the “[e]xcept as otherwise provided” language in § 3551 does not imply that § 3561

is an “exception” to § 3551; that argument seems to be based on an oversight as to the text of

9 In fact, a report of the House Judiciary Committee stated precisely this rationale in considering another proposal just a few years earlier. The committee report explained that because “supervised release is unavailable for petty offenses,” the committee aimed to “enhance sentencing flexibility by permitting a court to impose a term of probation for a petty offense if the defendant is at the same time sentenced to a term of imprisonment for another petty offense.” H.R. Rep. No. 102- 242, at 192 (1991). The Court accords no weight to this statement in interpreting the relevant statutory language—even if it would have otherwise been probative at all, its accompanying legislation was never enacted—but the report nonetheless confirms that the Court’s interpretation of § 3561 does not deprive the amendment of effect. 17 § 3551. The phrase “except as otherwise provided” is found not in subsection (b), but in subsection

(a), and it modifies the phrase “a defendant . . . shall be sentenced in accordance with the provisions

of this chapter.”

(a). That chapter, chapter 227, contains both § 3551 and § 3561,

and was rewritten in full by the SRA. In other words, “except as otherwise provided” simply

makes clear that, unless specifically noted otherwise, chapter 227, rather than provisions outside

of it, controls the rules for federal sentencing. It does not mean that subsection (b) of § 3551,

which instructs a court to choose only one of probation or imprisonment, is subject to certain

“[e]xcept[ions] . . . otherwise specifically provided.” If anything, the text and structure of § 3551

make clear what is already apparent from the structure of the SRA as a whole: unless a court is

instructed to apply a non-SRA provision, which is not the case here, the statute must be interpreted

to be a cohesive, coherent whole.

CONCLUSION

To date, the government has not cited a single instance before January 6, 2021 in which a

court has handed down a sentence under the SRA consisting of a term of imprisonment followed

by a term of probation jointly imposed for one offense.10 Nor has the Court, in its own research,

10 United States v. Posley,

(4th Cir. 2009), relied on by the government, involved a sentence in which imprisonment was “a special condition of his probation,”

. Indeed, even in the year after the Capitol riot, the government itself tacitly acknowledged the unavailability of this kind of sentence. In a December 2021 sentencing memorandum before this Court, for example, the government represented that it was listing all of its sentencing recommendations that it had proposed in January 6 cases to date, sorting them into three categories: “probation sentence without home detention,” “probation sentence with home detention,” and “incarceration.” See Sentencing Table at 1–6, United States v. Kostolsky, 21-cr-197, Dkt. 41-1. In none of those cases had the government recommended, nor had a court imposed, a sentence consisting of both a term of imprisonment and a term of probation. See

Beginning as early as that same month, however, the government changed its practice and began recommending compound sentences of incarceration and probation. See, e.g., Gov’t Sentencing Mem. at 15–16, United States v. Spencer, 21-cr-147 (CKK), Dkt. 55. Now, the government includes these proposed compound sentences under the heading “incarceration,” even though the sentences also include a proposed term of probation. See Sentencing Table, Dkt. 27-1. 18 become aware of such a sentence. If examples exist, they are few and far between. The caselaw’s

silence speaks volumes.

Out of the approximately one thousand January 6 defendants that the government has

charged to date, hundreds have entered into agreements with the government to plead guilty to a

single petty misdemeanor offense. Both before those agreements are reached and before

defendants are sentenced, prosecutors have wide latitude to seek criminal sanctions that reflect the

unprecedented nature and devastating consequences of the Capitol riot. And judges too are

permitted, and indeed compelled, see

(a)(1), to consider the unique “nature and

circumstances of the offense” when exercising their discretion at sentencing. But discretion—both

prosecutorial and judicial—has its limits. For a criminal sentence to be lawful, “[t]he legislative

authority of the Union must first make an act a crime, affix [such] punishment to it, and declare

the Court shall have the jurisdiction of the offence.” United States v. Hudson & Goodwin,

(1812). In our criminal justice system, “[l]egislatures, not courts, prescribe the

scope of punishments.” Hunter,

.

If the government seeks to pursue a sentence that includes both imprisonment and

supervision, it has several lawful options. The government may, where supported by the facts of

the case, charge a defendant with violation of a felony or a Class A misdemeanor, both of which

allow for imprisonment followed by a period of supervised release. See

(b).

Alternatively, the government may charge two (or more) petty offenses, seeking probation on one

and imprisonment on another. See

§ 3561(a)(3), (c). Or, in a case in which the government

exercises its prosecutorial discretion to allow a defendant to enter a plea to a single petty

misdemeanor, it can request that a court impose a sentence of intermittent confinement as a

condition of probation. See id. § 3563(b)(10). What the government cannot request, and what the

19 Court lacks the authority to impose, is a compound sentence of a term of imprisonment and a term

of probation—two distinct, mutually exclusive punishments under the SRA—for the same offense.

For the foregoing reasons, the government’s request for a compound sentence is denied.

The Court’s sentence is reflected in a separate judgment of conviction, Dkt. 32.

________________________ DABNEY L. FRIEDRICH January 25, 2023 United States District Judge

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