UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-9022

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE HERNANDEZ SOSA,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

______________________________________________________ August 3, 1993

Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

The facts in this statutory construction case are undisputed.

In 1989 Appellant Jose Hernandez Sosa plead guilty to stealing mail

from the United States Postal Service in violation of 18 U.S.C. §

1709. The Sentencing Guidelines authorized the court to sentence

him to a maximum prison sentence of six months. In exchange for

his plea, however, the court sentenced him to three years of

probation. As a condition of probation, Sosa periodically

submitted to drug testing. In November 1992, after months of

testing positive for drug use, Sosa admitted to charges that he had

violated his probation by possessing and using narcotics. Sosa's

drug use in violation of his probation triggered 18 U.S.C. §

3565(a), wh ich required the court to revoke his probation and

sentence him to "not less than one third of the original sentence."2

The court interpreted "original sentence" to refer to Sosa's three

year probation, and sentenced him to twelve months of

incarceration. Sosa appeals, arguing that the district court

should have interpreted "original sentence" to refer to the maximum

period of incarceration he could have received under the Sentencing

Guidelines for the original offense. We affirm.

I. Standard of Review

We will uphold a sentence unless it was imposed in violation

of law; imposed as a result of an incorrect application of the

s entencing guidelines; or is outside the range of the applica ble

sentencing guideline and is unreasonable

. U nited States v.

Buenrostro

, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied

, 495

U.S. 923 (1990) (citations omit ted). Application and

interpretation of the guidelines is a question of law subject to

plenary review. S ee United States v. Garcia

, 962 F.2d 479, 480-81

(5th Cir. 1992), cert. denied , 113 S.Ct. 293 (1992).

II. The Statute

When Congress enacted the Sentencing Reform Act of 1984 it

included 18 U.S.C. § 3565(a) which provides for probation

revocation as follows:

(a) Continuation or revocation.--If the defendant

violates a condition of probation at any time prior to the

expiration or termination of the term of probation, the court

may, after a hearing pursuant to Rule 32.1 of the Federal

Rules of Criminal Procedure, and after considering the factors

set forth in section 3553(a) to the extent that they are applicable--

(1) continue him on probation, with or without

extending the term or modifying or enlarging the

conditions; or

(2) revoke the sentence of probation and impose any other sentence that was available under subchapter A at1 United States v. Roberson

, 991 F.2d 627, (10th Cir. 1993); United

States v. Diaz

, 989 F. 2d 391 (10th Cir. 1993); U nited States v.

Clay

, 982 F.2d 959 (6th Cir. 1993); United States v. Granderson

, 969 F.2d 980 (11th Cir. 1992), cert. granted

, 61 U.S.L.W. 3868

(U.S. June 28, 1993) (No. 92-1662); United States v. Gordon

, 961

F.2d 426 (3rd Cir. 1992).

3

the time of the initial sentencing.

Pub.L. No. 98-473, § 212(a)(2), 98 St at. 1837, 1995 (1984)

(codified as amended at 18 U.S.C. § 3565(a)(1), (2)).

In 1988 Congress enacted the Anti-Drug Abuse Act which amended

18 U.S.C. § 3565(a) to include the following paragraph:

Notwithstanding any other provision of this sectio n, if a

defendant is found by the court to be in poss ession of a

controlled substance, thereby violating the condition imposed

by section 3563(a )(3), the court shall revoke the probation

and sentence the defendant to not less than one-third of the

original sentence . (emphasis added)

At issue is the meaning of "original sentence." The district court

interpreted it to refer to the sentence of three years of probation

it imposed on Appellant Sosa for his original offense, and thus

sentenced him to one third of three years, or t welve months of

incarceration. Appellant urges this Court to interpret "original

sentence" to mean the maximum prison sentence the court could have

imposed under the Sentencing Guidelines for the original offense.

Under this interpretation, Sosa would hav e been sentenced to at

least one third of six months, or two months in prison.

Six other Circuit Courts have considered this issue. The

Third, Sixth, Tenth, and Elevent h Circuits support Sosa's

position. 1 The Eighth and Ninth Circuits support the district2 United States v. Shampang

, 987 F.2d 1439 (9th Cir. 1993); U nited

States v. Byrkett

, 961 F.2d 1399 (8th Cir. 1992); United States v.

Corpuz , 953 F.2d 526 (9th Cir. 1992).

3 Major Campaign Speeches of Adlai E. Stevenson, 1952, p.315 (1953).

4 cou rt's and the government's position. 2 We join the Eighth and

Ninth Circuits.

III. "I Meant What I Said and I Said What I Meant" 3

The principles of statutory construction are well-settled.

"We begin with the familiar canon of statutory construction that

the starting point for interpreting a statute is the language of

the statute itself." C onsumer Product Safety Com. v. GTE Sylvania,

Inc.

, 447 U.S. 102, 108 (1980). If the language is clear and

unambiguous, then a court may end its inquiry. Rubin v. United

States , 449 U.S. 424, 430 (1981). "There is, of course, no more

persuasive evidence of the purpose of a statute than the words by

which the legislature undertook to give expression to its wishes."

Griffin v. Oceanic Contractors, Inc.

, 458 U.S. 564, 571 (1982)

(quoting United States v. American Trucking Ass'n, Inc. , 310 U.S.

534, 543 (1940)). "Nevertheless, in rare cases the literal

application of a statute will produce a result demonstrably at odds

with the intentions of its drafters, and those intentions must be

controlling." G riffin

, 458 U.S. at 571. In sum, the plain meaning

of an unambiguous statute is controlling unless it clearly violates

Congressional intent.

We begin our analysis of "original s entence" with the

determination that probation is a sentence. The judgment entered

against Sosa for his original crime is entitled "Judgment Including4 For example, § 3561 is titled "Senten c e of Probation"; § 3562 is

tit led "Imposition of a sentence of probation"; § 3563 discusses

explicit conditions of a "sentence of probation"; and § 3566 is

titled "Implementation of a sentence of probation."

5 We have considered and rejected all other arguments raised in the

Third, Sixth, Tenth, and Eleventh Circuits that support Sosa's

position.

5 Sentence Under the Sentencing Reform Act." The Sentencing Reform

Act is replete with references to a "sentence of probation." 4 The

corresponding Committee Report states: "Proposed 18 U.S.C. §3561,

unlike current law, states that probation is a type of sentence

rather than a suspension of the imposition or execution of a

sentence." S.Rep. No. 225, 98th Cong., 2d Sess. 88 (1983),

reprinted in 1984 U.S.C.C.A.N. 3182, 3271 (emphasis added). As

noted by the Ninth Circuit, a court determines the length and

conditions of probation by referring to the same goals that lead

the cour t to determine the length and conditions of a term of

incarcera tion. 18 U.S.C. § 3563(b). "Penologically and

semantically, probation is a sentence under the Sentencing Reform

Act. It is no longer an alternative to sentencing; it is a

sentence in and of itself." U nited States v. Corpuz

, 953 F.2d 526

(9th Cir. 1992).

Although not specificall y argued by Sosa, 5 we address the

contention that although probation is a type of sentence, it is so

fundamentally and historically distinct from a sentence of

incarceration that the two are not fungible. U nited States v.

Diaz

, 989 F.2d 391, 392-93 (10th Cir. 1993); United States v.

Granderson

, 969 F.2d 980, 984 (11th Cir. 1992), petition for cert.6 As state d infra , we recognize the severity of this result. It

remains clear to us, however, that when a defendant admits the

commission of additional crimes, particularly drug related crimes,

in violation of his parole, Congress intends a harsh punishment.

6 granted , 61 U.S.L.W. 3868 (No. 92-1662); United States v. Gordon

,

961 F.2d 426, 432 (3rd Cir. 1992). Our interpretation of § 3565(a)

is not premised on that assumption. We reason as follows. The

1988 amendment provides that a defendant who violates his parole by

using drugs shall be sentenced to one third of his "original

sentence." "Original" refers to the sentence he received for his

original offense. "Sentence" could refer to either probation or

incarceration, as both are types of sentences within the meaning of

the statute. The new sentence must be one of incarceration and not

probation, however, b ecause the amendment also states that "the

court shall revoke the sentence of probation," language cl early

demonstrating that imposition of additional probation is not

Congress's intent. 6

We next determine whether "original sentence" is ambiguous.

In our view the meaning is plain; it refers to the sentence imposed

on the defendant for his original crime, an i nterpretation

supported by reference to § 3565 in its entirety. Section

3565(a)(2), located just before the paragraph containing the term

"original sentence," states that if a defendant violate s a

condition of his parole, the court may revoke the sentence of

probation and "impose any other sentence that was available under

subchapter A at the time of the initial sentencing." Section

3565(b), located just after the language at issue, states that if7

a defendant possesses a firearm, the court shall revoke his parole

and "impose any other sentence that was available under subchapter

A at the time of the initial sentencing." The statute taken as a

whole demonstrates that Congress knew how to refer to the sentence

the defendant could have received at the time of the initial

sentencing. Instead, in the amendment, Congress used the term

"original sentence," which plainly refers to the sentence imposed

on the defendant for his original crime. The statute is

unambiguous.

We next determine whether this interpretation is "demonstrably

at odds" with Congressional intent. Griffin v. Oceanic

Contractors

, 458 U.S. 564, 571 (1982). Sosa has not highlighted

any legislative history of the Anti-Drug Abuse Act of 1988 that

would support his position. As the Ninth Circuit noted, no such

legislative history exists. C orpuz

, 953 F.2d at 529. We therefore

conclude that interpretation of the term "original sen tence" to

mean Sosa's original sentence of probation is not at odds with

Congressional intent; it illustrates the Congressional intent.

We recognize the harshness of this interpretation. Sosa could

only have received a maximum of six months incarceration for his

original crime, but by virtue of his parole violation he must now

endure twelve months of incarceration. The rule of lenity requires

that the meaning of an ambiguous penal statute be resolved in favor

of the defendant, but it does not require that the statute be read

without common sense. U n ited States v. Picquet , 963 F.2d 54, 56

(5th Cir. 1992), cert. denied

, 113 S.Ct. 290 (1992) (citing United8

States v. Mikelberg

, 517 F.2d 246, 252 (5th Cir. 1975), cert.

denied

, 424 U.S. 909 (1976)). The statute is unambiguous, and

common sense has dictated our interpretation.

The district court properly interpreted 18 U.S.C. § 3565(a).

CONCLUSION

For the foregoing reasons, the district court's imposition of

a twelve month sentence of incarceration of Sosa is AFFIRMED.