In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3619

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMILE M. HEAD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 04 CR 30092—William D. Stiehl, Judge.

ARGUED JUNE 4, 2008—DECIDED JANUARY 15, 2009

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Defendant Jamile Head claims

the district court improperly sentenced him to serve

six months in a “residential reentry center” as a discretionary condition of his supervised release. We agree

that the district court exceeded its authority in issuing

this sentence because it disregarded the plain language

of 18 U.S.C. § 3583(d), which, at the time, specifically

omitted this condition from a list of permissible discretionary conditions. Therefore, we vacate Head’s sentence
2 No. 07-3619

and remand for further proceedings consistent with

this opinion.

I. BACKGROUND

In 2004, Head pled guilty to possession of a firearm by

a felon. He was sentenced to 30 months’ imprisonment

followed by three years of supervised release. While

Head was on supervised release, the probation office

filed a petition to revoke it, alleging that Head had violated his release terms by (among other things) committing additional crimes and failing to file monthly

reports with the probation office. The district court

granted the petition and revoked Head’s supervised

release. It then sentenced him to 24 months’ imprisonment, followed by one year of supervised release.

The district court specified that the first six months of the

new supervised release term had to be served in a “residential reentry center.” Head objected to this condition

in his sentencing memorandum and at the sentencing

hearing. He raises the same argument on appeal.

II. ANALYSIS

The only issue for us to decide is whether the district

court had the authority to order, as a discretionary condition of supervised release, that Head serve time in a

residential reentry center after his release from prison. At

the time of Head’s sentencing, 18 U.S.C. § 3583(d) defined

the permissible discretionary conditions of supervised
No. 07-3619 3

On October 13, 2008, after Head had been convicted and 1

sentenced, Congress amended the quoted passage in 18 U.S.C.

§ 3583(d) to read, “any condition set forth as a discretionary

condition of probation in section 3563(b). . . . “ (emphasis added).

As a result, the cross-reference in 18 U.S.C. § 3583(d) now

includes section 3563(b)(11) as a permissible condition of

supervised release. The imposition or revocation of supervised

release is part of the penalty for the original offense. Johnson

v. United States, 529 U.S. 694, 700-01 (2000). Under our reading

of the statute, the inclusion of section 3563(b)(11) broadens the

scope of defendants that are subject to some form of confinement while on supervised release, and there is no indication

from Congress that this amendment applies retroactively. When

the statute is silent the presumption against retroactivity,

particularly in criminal cases, directs us to apply the amendment prospectively. Id. at 701-02. Therefore, the new version of

section 3583(d) does not apply to Head’s appeal. Cf. United States

v. Mallon, 345 F.3d 943, 946-47 (7th Cir. 2003) (“Procedural

innovations that don’t tinker with substance . . . are compatible

with the ex post facto clause. Section 401(d) of the PROTECT

ACT is procedural only and thus must be used on this appeal.”)

(citation omitted). The relevant question before this court is

whether the pre-amendment version of section 3583(d) should

be construed to allow the imposition of section 3563(b)(11) as

a condition of supervised release.

release by incorporating by reference “any condition set

forth as a discretionary condition of probation in [18 U.S.C.

§] 3563(b)(1) through (b)(10) and (b)(12) through (b)(20),

and any other condition it considers to be appropriate.”1

The parties agree that the residential reentry center in

which Head was sentenced to serve fell within the scope

of 18 U.S.C. § 3563(b)(11), which provides that a person
4 No. 07-3619

“reside at, or participate in the program of, a community

corrections facility (including a facility maintained or

under contract to the Bureau of Prisons) for all or part of

the term of probation.” Although Congress later amended

section 3583(d) to include 3563(b)(11), we interpret the

statute as it existed when Head was sentenced.

The problem here is that section 3563(b)(11) is the one

discretionary condition of probation that section 3583(d)

did not incorporate by reference. This glaring omission

suggests the district court lacked the authority to order

that Head serve time in a residential reentry center as

part of his new term of supervised release.

The government tries to circumvent this problem by

pushing a nontextual interpretation of section 3583(d)

based on that provision’s history. The United States

Sentencing Commission Guidelines Manual (U.S.S.G.)

summarizes the historical backdrop for this argument:

Subsection(b)(11) of section 3563 of title 18, United

States Code, is explicitly excluded [from 18 U.S.C.

§ 3583(d)] as a condition of supervised release.

Before the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 [AEDPA], the

condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C.

§ 3563(b)(2), authorizing the payment of a fine as

a condition of probation, and redesignated the

remaining conditions of probation set forth in 18

U.S.C. § 3563(b); intermittent confinement is

now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency
No. 07-3619 5

at a community corrections facility. It would

appear that intermittent confinement now is

authorized as a condition of supervised release

and that community confinement now is not

authorized as a condition of supervised release.

However, there is some question as to whether

Congress intended this result. Although [AEDPA]

redesignated the remaining paragraphs of section

3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding

discretionary conditions of supervised release.

U.S.S.G. §§ 5D1.3(e)(1)(note), 5F1.1 (2007). The government claims that Congress made a “clerical error” by

failing to amend section 3583(d) when it amended section

3563(b) via AEDPA. It contends that we should correct

Congress’s oversight by interpreting the pre-amendment

version of section 3583(d) to allow district courts to

order defendants into community confinement as a

discretionary condition of supervised release.

This is an issue of first impression for us. The other

circuit courts that have already decided the issue have

adopted the government’s proposed interpretation. See

United States v. Gilpatrick, 548 F.3d 479, 482-84 (6th Cir.

2008); United States v. Del Barrio, 427 F.3d 280, 283 (5th Cir.

2005); United States v. D’Amario, 412 F.3d 253, 256-57

(1st Cir. 2005); United States v. Griner, 358 F.3d 979, 981-82

(8th Cir. 2004); United States v. Bahe, 201 F.3d 1124, 1136

(9th Cir. 2000); see also United States v. Arias, 153 Fed.

Appx. 577, 579 (11th Cir. 2005) (unpublished); United

States v. Huffman, 146 Fed. Appx. 939, 941-43 (10th Cir.
6 No. 07-3619

2005) (unpublished). In determining whether to follow

their lead, we begin with the plain meaning of section

3583(d) and then examine the rationale behind the

other circuits’ decisions.

A. The plain meaning of section 3583(d) provided

that a defendant cannot be placed in a community

confinement program as a discretionary condition of supervised release.

The government may be correct that Congress overlooked section 3583(d) when it passed AEDPA. But that

doesn’t mean we can (or should) do anything about this

error. Judges do not read between the lines when a statute’s text is clear and its structure is coherent. See Jaskolski

v. Daniels, 427 F.3d 456, 461-64 (7th Cir. 2005). And there

was nothing unclear or incoherent about section 3583(d):

it specifically declined to provide courts with the

authority to order defendants into community confinement programs as a discretionary condition of supervised release. Even if Congress made a mistake,“ ‘[i]t is

beyond our province to rescue Congress from its drafting

errors, and to provide for what we might think . . . is the

preferred result.’ ” Lamie v. United States Tr., 540 U.S. 526,

542 (2004) (quoting United States v. Granderson, 511 U.S.

39, 68 (1994) (concurring opinion)).

The government maintains, however, that reading the

pre-amendment version of section 3583(d) according to

its plain meaning would lead to an “absurd” result that

we must avoid. See Treadway v. Gateway Chevrolet Oldsmobile, Inc., 362 F.3d 971, 976 (7th Cir. 2004). The gov-
No. 07-3619 7

ernment claims that because section 3583(d) allowed a

district court to order that a defendant live at a residential

facility that provides only drug and alcohol treatment

(per section 3563(b)(9)), it would be illogical not to read

the provision as also permitting a district court to order

that a defendant live at a residential facility that combines

drug and alcohol treatment with other programs, such

as employment (per section 3563(b)(11)).

The government misconstrues the scope of the “absurdity” exception. A statute might be absurd because it’s

linguistically incoherent; that’s something we can fix. But

when a statute’s language is clear, we won’t “correct” the

statute simply because it makes a bad substantive choice.

See Jaskolski, 427 F.3d at 462. The error must be much

more severe. As the Tenth Circuit has held:

One claiming that the plain, unequivocal language

of a statute produces an absurd result must surmount a formidable hurdle. . . . [W]e can apply the

doctrine only when it would have been unthinkable for Congress to have intended the result

commanded by the words of the statute—that is,

when the result would be so bizarre that Congress

could not have intended it . . . .

Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006)

(en banc) (internal quotation marks omitted). This approach to statutory interpretation is hardly new. See

Sturges v. Crowninshield, 17 U.S. 122, 202-03 (1819) (Marshall, C.J.) (plain meaning of a provision should apply

unless “the absurdity and injustice of applying the provision to the case, would be so monstrous, that all man-
8 No. 07-3619

kind would, without hesitation, unite in rejecting the

application”).

The “error” that the government complains of here

was not a linguistic one. And applying the statute as

written does not lead to a result that is so bizarre or

shocking as to allow the district court the discretion to

fix it. So the only acceptable amendment to the statute

is the one that came from Congress, not from us. See Lamie,

540 U.S. at 542.

B. The other circuit courts’ interpretations of the

pre-amendment section 3583(d) do not persuade

us to deviate from the plain language of that

provision.

The First, Fifth, Sixth, Eighth, and Ninth Circuits have

issued published opinions adopting the government’s

argument that despite the plain language of section

3583(d), a district court could have ordered that a defendant serve in a community confinement program as a

discretionary condition of his supervised release. Gilpatrick,

548 F.3d 479, 482-84; Del Barrio, 427 F.3d at 283; D’Amario,

412 F.3d at 256-57; Griner, 358 F.3d at 981-82; Bahe, 201

F.3d at 1136. The Tenth and Eleventh Circuits have

issued unpublished orders holding the same. Arias, 153

Fed. Appx. at 579; Huffman, 146 Fed. Appx. at 942-43.

The First, Fifth, Sixth, Tenth, and Eleventh Circuit

decisions rest entirely on the Ninth Circuit’s reasoning

in Bahe and the Eighth Circuit’s reasoning in Griner, so

we focus on those two cases. In Bahe, the Ninth Circuit
No. 07-3619 9

found that it could not rely on the plain language of section 3583(d) because of an “internal ambiguity”:

Although the absence of a reference in § 3583(d) to

subsection (11) suggests that a district court lacks

the authority to impose this condition of supervised release, subsection (3) of § 3583(d) suggests

that a district court has such authority. Subsection

(3) states that a sentencing court may impose any

condition of supervised release that “is consistent

with any pertinent policy statements issued by the

Sentencing Commission pursuant to 28 U.S.C.

§ 994(a) . . . .” The Sentencing Commission has

promulgated one policy statement and a corresponding guideline that are “pertinent” to the

resolution of this case. Both expressly authorize

a district court to impose community confinement as a condition of supervised release following

imprisonment . . . .

Hence, a district court’s authority under subsection

(3) of § 3583(d) appears to be at odds with its

authority under the portion of § 3583(d) that refers

to the subsections of § 3563(b). Because of this

internal inconsistency, the meaning of § 3583(d)

is unclear.

Bahe, 201 F.3d at 1128-30. The court used this “inconsistency” as an opening to look beyond the text of section

3583(d) and adopt the interpretation that the government proposes here. Id. at 1130-34.

We disagree with Bahe and conclude there was no such

inconsistency in section 3583(d). That provision stated

in relevant part:
10 No. 07-3619

We do not believe (and the government does not contend) that 2

the catch-all provision recaptures the conduct covered by

section 3563(b)(11). Our conclusion stems from the famous

maxim, expressio unius est exclusio alterius (the expression of one

thing implies the exclusion of another). See, e.g., In re Globe Bldg.

Materials, Inc., 463 F.3d 631, 635 (7th Cir. 2006). That Congress

expressly excluded community confinement as a discretionary

(continued...)

The court may order, as a further condition of

supervised release, to the extent that such condition— . . .

(3) is consistent with any pertinent policy

statements issued by the Sentencing

Commission pursuant to 28 U.S.C.

§ 994(a);

any condition set forth as a discretionary condition

of probation in section 3563(b)(1) through (b)(10)

and (b)(12) through (b)(20) and any other condition it considers to be appropriate.

There can be an ambiguity only if one reads section

3583(d)(3) disjunctively with the discretionary conditions

of probation listed at the end of the section. But the statute

suggests these provisions should be read conjunctively. It

stated that a discretionary condition of supervised release

was permissible only if it was consistent with the Sentencing Commission’s policy statements and if was listed in 18

U.S.C. § 3563(b)(1)-(b)(10), (b)(12)-(b)(20) (or was captured

by the catch-all provision, “any other condition it consider[ed] to be appropriate”). So even if the Sentencing 2
No. 07-3619 11

(...continued)

condition of supervised release implies that it did not want

courts to use the catch-all provision as an alternate basis

for imposing this condition. See United States v. Mills, 186

F. Supp. 2d 965, 970 (E.D. Wis. 2002). But see Bahe, 201 F.3d

at 1134-35.

Commission said that community confinement could be

imposed as a discretionary condition of supervised release,

the omission of section 3563(b)(11) prevented district

courts from imposing that condition. See United States v.

Mills, 186 F. Supp. 2d 965, 969 (E.D. Wis. 2002).

Moreover, the “inconsistency” that Bahe complained of

was eventually resolved, as the Sentencing Commission

later recognized that the text of section 3583(d) appeared to

exclude community confinement as a permissible discretionary condition of supervised release. See U.S.S.G.

§§ 5D1.3(e)(1)(note), 5F1.1 (2007). So Bahe’s reason for

looking beyond section 3583(d)’s plain language is no

longer viable.

Turning to Griner, the Eighth Circuit characterized the

change to the probation statute as a “bookkeeping change”

and relied on a “well-settled canon” of statutory construction:

Where one statute adopts the particular provisions of another by a specific and descriptive

reference to the statute or provisions adopted, the

effect is the same as though the statute or provisions adopted had been incorporated bodily into

the adopting statute. . . . Such adoption takes the
12 No. 07-3619

statute as it exists at the time of adoption and does

not include subsequent additions or modifications

by the statute so taken unless it does so by express

intent. The weight of authority holds this rule . . .

respecting two separate acts applicable where, as

here, one section of a statute refers to another section which alone is amended.

Griner, 358 F.3d at 982 (quoting Hassett v. Welch, 303

U.S. 303, 314 (1938) (internal quotation marks omitted)

(quoting 2 Sutherland on Statutory Construction, 787-88 (2d

ed. 1904) (footnotes omitted))); see also Kendall v. United

States ex rel. Stokes, 37 U.S. 524, 625 (1838) (noting that state

statutes that had adopted British statutes by reference were

“considered as referring to the law existing at the time

of adoption”). Applying this canon (we’ll refer to it as

the “cross-reference canon”), the Eighth Circuit concluded that “§ 3583(d) included the language of subsection (b)(12) as it was then written to permit community-corrections confinement.” Griner, 358 F.3d at 982.

Unlike Griner, however, we do not read Hassett as

creating a categorical rule that compels courts to always

read statutory cross-references as pointing to their

original targets. Indeed, such a rule would make little

sense, as “[w]riting a cross-reference rather than

repeating the text to be incorporated is useful precisely

because the target may be amended. A pointer permits the

effect of a change in one section to propagate to other,

related, sections without rewriting all of those related

sections.” Herrmann v. Cencom Cable Assocs., Inc., 978 F.2d

978, 983 (7th Cir. 1992).
No. 07-3619 13

In the 70 years since Hassett was decided, the Supreme Court 3

has never cited Hassett for the cross-reference canon. Indeed, in

(continued...)

Rather, Hassett turned to the cross-reference canon (and

two others) only after finding that the meaning of a tax

provision it was interpreting was “not so free from

doubt as to preclude inquiry concerning the legislative

purpose.” Hassett, 303 U.S. at 309. In particular, it was

not clear from the statutory text whether the tax provision applied retroactively and whether a cross-reference

to the provision referred to its original text or its lateramended language. See id. at 308-14. The Court resorted

to canons only because the statute did not have a clear

meaning on its face. See id. at 313 (“Resort is had to

canons of construction as an aid in ascertaining the

intent of the legislature. It may occur that the intent is so

clear that no such resort should be indulged . . . .”). And

the Court has since reminded us that we should not

look beyond the language of a statute when its text is

plain and its mandate plausible. See, e.g., Dodd v. United

States, 545 U.S. 353, 359 (2005) (“[W]hen [a] statute’s

language is plain, the sole function of the courts—at least

where the disposition required by the text is not absurd—

is to enforce it according to its terms.” (internal quotation

marks omitted) (first alteration in original)); Salinas v.

United States, 522 U.S. 52, 57 (1997) (“Courts in applying

criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Only the

most extraordinary showing of contrary intentions in

the legislative history will justify a departure from

that language.” (internal quotation marks omitted)).

3
14 No. 07-3619

(...continued)

a recent case, the Court did not apply a presumption that a

facially ambiguous self-reference within a Truth in Lending

Act provision pointed to the original, unamended version of

the provision. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543

U.S. 50, 60-64 (2004). Instead, the Court relied on “common

sense” to reach that conclusion. Id. at 63. So Koons raises some

question whether Hassett’s cross-reference canon retains

vitality today. But see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)

(“[I]t is this Court’s prerogative alone to overrule one of its

precedents.”).

Moreover, in our sole decision where we cited Hassett

for the cross-reference canon, we proceeded in that

manner only because the statutory text was ambiguous.

See Dir., Office of Workers’ Compensation Programs v.

Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977). The case

involved a welter of cross-references in the Federal Coal

Mine Health and Safety Act. We analyzed Hassett as part

of a lengthy exposition on whether a certain crossreference was a “specific” reference—one that specifically

refers to a target statute and takes the target as

originally enacted—or a “general” reference—one that

refers to the law more generally and takes a target

statute as amended. Id. at 322-31; see also id. at 323 (noting

that “a facially specific legislative reference may, in

fact, constitute a general legislative reference”); Herrmann,

978 F.2d at 983 (noting that few cross-references are

specific). More importantly, we reached this issue

only after first concluding that the statutory text was

incoherent as written—for example, many of the relevant
No. 07-3619 15

cross-references pointed out into the ether. See Peabody

Coal, 554 F.2d at 320-21 (noting references to repealed

statutory provisions). We indicated that we would not

have turned to Hassett or other interpretive canons had

the text been clear. See id. at 321-22 (turning to “extrinsic

aids to statutory construction” because the court could

not “give full literal effect to the words appearing in

the original and in the amended incorporating provision”).

Similarly, other courts have turned to Hassett only after

first finding a facial defect with the cross-reference or

target statute being interpreted. See, e.g., United States v.

Oates, 427 F.3d 1086, 1089 (8th Cir. 2005) (correcting a

facially defective sentencing guideline provision that

referred to the wrong statutory subsection); Dir., Office of

Workers’ Compensation Programs v. E. Coal Corp., 561

F.2d 632, 635-41 (6th Cir. 1977) (following Peabody Coal

in a similar case); Dir., Office of Workers’ Compensation

Programs v. Ala. By-Products Corp., 560 F.2d 710, 715 (5th

Cir. 1977) (same); Krolick Contracting Co. v. Benefits Review

Bd., 558 F.2d 685, 686-88 (3d Cir. 1977) (same); cf. Carriers

Container Council, Inc. v. Mobile S.S. Assoc., Inc., 948

F.2d 1219, 1225 (11th Cir. 1991) (relying in part on

Hassett to reject a claim that a provision governing interest implicitly incorporated a provision governing compounding of interest); United States v. Smith, 683 F.2d

1236, 1238 n.8, 1239-40 (9th Cir. 1982) (en banc) (noting

that “the Youth Corrections Act does not mesh nicely

with the Probation Act” before concluding that a crossreference from the former statute to the latter was a

general reference (internal quotation marks omitted));

Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352 (5th
16 No. 07-3619

Cir. 1980) (adopting our rationale in Peabody Coal for a

different statutory scheme).

On occasion, we have also “corrected” cross-references

without citing Hassett. But these corrections have

generally been limited to technical repair work, such as

fixing facially defective cross-references that point to

unrelated provisions and render statutory schemes incoherent as written. See, e.g., United States v. Paul, 542 F.3d

596, 600 (7th Cir. 2008) (“Although the statute crossreferences section 3563(a)(4), that is a mistake, for the

intended cross-reference obviously is to section 3563(a)(5),

a parallel provision concerning mandatory drug testing

as a condition of probation.”). For example, we interpreted

an ERISA cross-reference as pointing to an unamended

target after we found that following the cross-reference

as written would lead to a “nonsensical” and “bizarre”

result. Herrmann, 978 F.2d at 981-82. And more recently,

we corrected Congress’s failure to update a statute that

criminalized improper recordkeeping after a provision

it referred to (section 355(j)) was renumbered and the

new section 355(k) did not refer to recordkeeping at all.

United States v. Bhutani, 266 F.3d 661, 665-68 (7th Cir.

2001). The Supreme Court has also indicated that courts

can turn to a statute’s history to identify the target of a

facially ambiguous reference. See Koons Buick Pontiac

GMC, Inc. v. Nigh, 543 U.S. 50, 60-64 (2004) (determining

that an ambiguous reference to “this subparagraph”

pointed to the subsection at the time of the statute’s

enactment).

So we can certainly correct cross-references when it’s

clear from the statutory text that there is some kind of
No. 07-3619 17

Even if there were any ambiguity in section 3583(d), we 4

would likely construe it in favor of the defendant per the rule

of lenity. See, e.g., United States v. Thompson, 484 F.3d 877, 881

(7th Cir. 2007).

error. But that’s not what we have here. There was no

ambiguity about the object of our cross-reference (18

U.S.C. § 3583(d)). And there was no logical or linguistic

inconsistency between the cross-reference and the

target statute (18 U.S.C. § 3563(b)(1)-(10), (12)-(20)). Indeed,

the statutory scheme tracked perfectly well as written:

district courts could not sentence defendants to community confinement as a discretionary condition of their

supervised release. An odd result, perhaps, but hardly one

that is absurd. See Jaskolski, 427 F.3d at 462 (“Today the

anti-absurdity canon is linguistic rather than substantive.”); see also United States v. Locke, 471 U.S. 84, 93-94

(1985) (interpreting a statute that required a filing to be

“prior to December 31 of each year” as setting a

December 30 deadline, even though Congress might

have intended an end-of-the-year deadline). Indeed, there

is no objective reason based on the statutory text to conclude that there was any “error” here. And we do not “fix”

what we cannot objectively identify as broken, because

“what judges deem a ‘correction’ or ‘fix’ is from another

perspective a deliberate interference with the legislative

power to choose what makes for a good rule.” Jaskolski,

427 F.3d at 462.4

Because sections 3583(d) and 3563(b) were unambiguous

and fit together coherently, our job is simply to follow
18 No. 07-3619

the law as written. So we reject the government’s invitation to circumvent the plain language of these statutes by

invoking the cross-reference canon. And we therefore

conclude that the district court exceeded its authority in

ordering that Head serve in a residential reentry

program during his new term of supervised release.

Because this decision creates a conflict among circuits,

it was circulated to all active judges under Circuit Rule

40(e). No judge favored a hearing en banc.

III. CONCLUSION

We VACATE Head’s sentence and REMAND for further

proceedings consistent with this opinion.

1-15-09