UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA UNITED STATES OFAMERICA,
v. JAMES LESLIE LITTLE, 

### Defendant. Case No. 1:21-cr-315-RCL

MEMORANDUM OPINION 

### Defendant James Leslie Little pleaded guilty in this matter for his participation in the unsuccessful insurrection at the United States Capitol on January 6, 2021. In 

### its sentencing memorandum, the government requested that the Court impose a "split sentence"-thirty days of imprisonment followed by thirty-six months of probation. Gov't Sentencing Mem. ("Gov't Mem.") 17, ECF No. 31. The Court ordered Little to respond to the issue ofwhether the Court has authority to impose a split sentence. Order, ECF No. 34. Littleresponded, Def.'s Mem., ECF No. 37, and the government replied, ECF No. 39. Upon consideration ofthe parties' filings, applicable law, and the arguments set forth at the sentencing hearing, the Court sentenced Little to sixty days' imprisonment and thirty-six months' probation. This memorandum opinion elaborates on the Court's reasoning as to why a split sentence is permissible under law and warranted bythe circumstances ofthis case. 

### I. BACKGROUND 

### January 6, 2021, marked a tragic day in American history. The peaceful transfer of power-one ofour most important and sacred democratic processes-came under a full-fledged assault. While the immediate threat may have subsided, the damage from January 6 persists. Rioters interrupted the certification ofthe 2020 Electoral College vote count, injured more than
one hundred law enforcement officers, and caused more than a million dollars ofpropertydamage 

### 1

### to the U.S. Capitol. Some ofthe rioters-now defendants in criminal cases-directlycontributed to this violence by assaulting members of law enforcement or by planning, preparing, and facilitating this violence. Others, like Little here, did not directly assault officers. But even Little and those who engaged in this "lesser" criminal conduct were an essential component to the harm. Law-enforcement officers were overwhelmed by the sheer swath ofcriminality. And those who engaged in violence that day were able to do so because they found safety in numbers. Forcertaintypes ofoffenses, the Courtmay sentence adefendantto atermofimprisonment followed by a term ofsupervised release, which serves as "aform ofpostconfinement monitoring
overseenbythe sentencing court." Johnson v. UnitedStates, 

### 529 U.S. 694, 697 (2000). Offenders
on supervisedreleasemust abidebycertain conditions specifiedbystatuteorimposedbythe court. Id. 

### This monitoring is designed to prevent the offender's recidivism. See United States v. Cary, 

### 775 F.3d 919, 923 (7th Cir. 2015). Petty offenders, however, are not eligible for supervised release. See 

### 18 U.S.C. 

### § 3583(b)(3). Littlepleaded guiltyto Parading, Demonstrating, orPicketingin a Capitol Building, in violation of40 U.S.C. 

### § 5104(e)(2)(G). Plea Agr. 1, ECF No. 25. The statutory maximum term ofimprisonment for this offense is six months. 40 U.S.C. 

### § 5109(b). Under the U.S. Code, Little's offense is apetty offense. See 

### 18 U.S.C. 

### § 3559(a)(7) (offensewith a six-monthmaximum term of imprisonment is classified as Class B misdemeanor); 18 U.S.C. § 

### 19 (Class B misdemeanors are ''petty offense[s]"). So supervised release is not available in Little's case. There is no question that the Court has the authority to sentence Little to a term of imprisonment or probation. See, e.g., 

### 40 U.S.C. 

### § 5109(b); 18 U.S.C. 

### § 3561(c). And for defendants who are sentenced to probation, it is also well-established that the Court may impose "intervals" of imprisonment-like "nights" or ''weekends"-as a condition of probation.

218 U.S.C. § 3563(b)(10). Butthe government did not make this request in Little's case, given the COVID-19 safety concerns inherent inrepeatedly entering and leavingdetention facilities. Gov't. Mem. 24. The Court agrees that imposing such a sentence would be unwise. Instead, the governmentrequested a "splitsentence"-atermofimprisonmentfollowedbya termofprobation. Id. at 1, 17 (quotingFoster v. Wainwright, 820 F. Supp. 2d 36, 37 n.2 (D.D.C. 2011)). January 6 defendants like Littlepresent a unique challenge for the Court at sentencing. On
onehand, theCourtbelieves thatsometerm ofimprisonmentis essentialto ''reflectthe seriousness ofthe offense, to promote respect for the law, and to providejust punishment for the offense." 18 U.S.C. 

### § 3553(a)(2)(A). The nature and circumstances ofLittle's offense are serious. Little unlawfully entered the Capitol despite conceding that he witnessed law-enforcement officers deploy tear gas and fire rubberbullets to disperse rioters attempting to enter the Capitol. He did notturnback after seeingprotestors attempting to unlawfully enterthe Capitolby scalingthe stillunder-construction Inauguration scaffolding. Nordidheturnbackwhenhis motherhad a medical emergency. Little then entered the Senate Gallery-one ofthe Capitol's most sensitive areas. It cannot be understated that participation ofrioters like Little-while not necessarily violent or destructive-was essential in empowering rioters to interrupt the Electoral College certification. His conduct calls for a period ofimprisonment. Ontheotherhand, manyofthese cases-Little'sincluded-demandlengthierinvolvement from the Court to "afford adequate deterrence to criminal conduct" and "protect the public from further crimes ofthedefendant." 18 U.S.C. § 3553; see UnitedStates v. Wiedrich, No. 1:21-cr-581 (TFH), 1/27/2022 Tr. 23 (D.D.C.), ECF No. 33 ("I am purposely making the probation to cover thenextgeneral election, in2024, to ensureyoudonot fall victimto following false Gods again."). The Court often finds it difficult to ascertain the sincerity ofthese particular defendants' remorse;



### 3

### Many defendants appear sincere at sentencing, boasting oftheir purportedly deep shame, regret, and desire to change and be law-abiding citizens. But this Court is all too familiar with crocodile tears. Indeed, one day after being sentenced to probation, another January 6 defendant made statements in an interview that directly conflicted with the contrite statements that shemadeto the undersigned. Fortunately, Little's sentencingdoes notpresentthis dilemma. Heisnotremorseful forhis conduct. Littleboasted to others during and after the attack that, "Wetook the Capitol," and "We
are stopping treason! Stealing elections is treason! We'renot going to take it anymore!" And in his statements to the Federal Bureau ofInvestigation, Little continued to deflect responsibility for the violence onto Antifa, BlackLives Matter, and even the law enforcement officers overwhelmed by the rioters. He blamed Capitol Police officers for failing to prevent 

### him from entering the Capitol. The letter that this Court received with excerpts from Little's social media further suggests that Little may not fully comprehend the wrongfulness ofhis actions. Little's criminal convictionis nottheresult ofa "setup" or"trap," ECF No. 40 at 

### 3-hechoseto engage incriminal conduct onJanuary 6, despite the obvious indicators at the Capitol thathis conduct was wrongful. And contrary to his Facebook post and the statements he made to the FBI, the riot was not "patriotic" or a legitimate ''protest," id. at 5-it was an insurrection aimed at halting the functioning ofourgovernment. Athis sentencing, Little didnotretract any ofhispriorstatements. He didn't apologize or acknowledge in any way that what he had done was wrong. Instead, he chose to criticize the FBI agents for not reading him his Miranda rights and requested that he be permitted to continue using firearms. Onlya split sentencewouldadequately servethegoals ofsentencingdescribedin 18 U.S.C. 

### § 3553. Stated plainly, the Court must not only punish Little for his conduct but also ensure that

4he will not engage in similar conduct again during the next election. Some term ofimprisonment may serve sentencing's retributive goals. But only a longer-term period ofprobation is adequate to ensure that Little will notbecome an active participant in another riot. The Court now turns to explaining why a split sentence is legally permissible when the defendant is sentenced to imprisonment for a petty offense. 

### II. DISCUSSION Whether courts havethe authorityto impose a "split sentence"-ora term ofimprisonment followed by a term ofprobation-inpetty offense cases is an open question inthis Circuit. In fact, there's a dearth ofauthority on the issue nationwide. The Fourth Circuit is apparently the only Court ofAppeals to address the issue and concluded that the practice is permitted. 

### United States
v. Posley, 351 F. App'x 807, 809 (4th Cir. 2009) ("Unquestionably, the magistratejudge had the statutory authority under§ 356l(a)(3) to sentence Posley to a term of six months ofcontinuous imprisonment plus probation."). 1 The only other decision to address this issue, to the Court's knowledge, is 

### United States v. Spencer. No. l:21-cr-147 (CKK), slip op. at 6 (D.D.C. Jan. 19, 2022), ECF No. 70. There, anothermember ofthis Courtreached the opposite conclusion, holding that the imposition ofa split sentence for a petty offense is not permitted by statute. 

### Id. In the absence of binding authority, the Courtmust determine for itselfwhetherthis practiceis permitted. Upon consideration ofthe relevant statutory provisions, the Court concludes that split sentences in petty offense cases are authorized by statute. The Court begins, as it must, with the text. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning ofthat language

1 The government also cites two treatises that agree with the Fourth Circuit. But neither contains any additional analysis beyond that in Posely and one relies explicitly on Posely for its conclusion. See Cyclopedia of Federal Procedure,§ 50:203 (citing Posely); Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 547 n.13 (4th ed. 2021).
5accurately expresses the legislative purpose." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (internal quotation marks omitted)). A Court must first determine whether the disputed statutory language "has a plain and unambiguous meaning." Robinson 

### v. Shell Oil Co., 519 U.S. 337,340 (1997) (citing UnitedStates 

### v. RonPairEnters., Inc., 489U.S. 235,240(1989)). "[I]fthe statutorylanguageisunambiguous and 'the statutory schemeis coherent and consistent,"'
a courtneedlooknofurther. Id. at340. Here, the statutorylanguage,readincontext,isdispositive. 

### A. Overview Of Sentencing In The Federal System And The General Rule in 18 

## u.s.c. § 3551 The Courtbegins with an overview oftherelevant statutory scheme. Chapter227 ofTitle 18 ofthe U.S. Code governs sentencing inthe federal system. See 18 U.S.C. 

### §§ 3551-3586. The chapteris splitinto four subchapters: subchapterA contains general provisions, id. 

### §§ 3551-3559; subchapter B governs probation, see id. 

### §§ 3561-3566; subchapter C governs fines, see id. 

### §§ 3571-3574; and subchapter D governs imprisonment, see id. §§ 3581-3586. Two sections speak directly to the issue in this case. First, 18 U.S.C. § 3551, found in subchapter A (general provisions), states that "[ e]xcept as otherwise specifically provided, a defendant who has been found guilty ofan offense described in any Federal statute, ... shall be sentenced in accordance with the provisions ofthis chapter so as to achieve the purposes set forth in
... section 3553(a)(2)." See id. § 355l(a). It continues: An individual found guilty of an offense shall be sentenced, in accordance with the provisions ofsection 3553, to- (1) a term ofprobation as authorized by subchapter B; (2) a fine as authorized by subchapter C; or (3) a term ofimprisonment as authorizedby subchapterD. A sentence to pay a fine may be imposed in addition to any other sentence.... Id. § 355l{b) (emphasis added).
6The parties agree that § 3551(b) sets out probation and imprisonment as two mutually exclusive options. Congress's use ofthe word "shall," as opposed to ''may," ''usually connotes a requirement." 

### Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016). Here, 

### § 355l(b) states that a defendant "shall be sentenced" to a term ofprobation, a fine, "or" a term of imprisonment. The "or''is "afunction word [that] indicate[s] an alternative." Or, Webster's Third NewInternational Dictionary 1585 (1961). Section3551(b) concludesbystatingthat "[a] sentence to pay a fine may be imposed in addition to any other sentence." 

### § 3551(b). Accordingly, the government concedes that "as a general matter . . . 'ajudge must sentence a federal offender to either a fine, a term ofprobation, or a term ofimprisonment."' Gov. Mem. 18 (quoting 

### United States v. Kopp, 922 F.3d 337, 340 (7th Cir. 2019)). And the terms of§ 355l(b) permit the imposition of a fine in addition to a sentence ofprobation or imprisonment. Thus, § 3551(b) ordinarily makes probation and imprisonment mutually exclusive. 

### B. 18 U.S.C. § 

### 3561 Specifically Authorizes Sentencing Courts To Impose A Term Of Probation 

### IfThe Defendant Is Sentenced To Imprisonment For Only Petty Offenses The second relevant section, 18 U.S.C. § 3561, is found in the probation subchapter (subchapter B). It provides: (a) In General.-A defendant who·has been found guilty of an offense maybe sentenced to a term ofprobationunless- 

### (1) the offense is a Class A or Class B felony and the defendant is an individual; (2) the offense is an offense for which probation has been expressly precluded; or (3) the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense 

### that is not apetty offense. Id. § 3561(a)(3) (emphasis added). Section 3561 largely reiterates the same rule found in§ 3551:
a defendant who is sentenced "atthe sametimeto atermofimprisonment"is ordinarilynoteligible

7for probation. See id. § 3561(a)(3); United States v. Martin, 363 F.3d 25, 35 (1st Cir. 2004). But thegovernment contendsthatthephrase attheendof§ 3561(a)(3}-''thatis not a pettyoffense"- provides an exception to that general rule. Gov. Mem. 20. The Court agrees. To begin, the Court will divide Section 3561 into its component parts. The statutebegins with a grant ofauthority: when a defendant has been found guilty ofa federal offense, he "maybe sentencedto a term ofprobation." Id. § 3561(a). Thenextword-"unless"-signalsthatthis grant ofauthority persists "except on the condition[s] that" are listed. Unless, Webster's Third New International Dictionary 2503 (1961). The relevant condition here is found in § 3561(a)(3). It statesthattheauthorityto imposeprobationdoes notextendto circumstanceswhere ''thedefendant is sentenced at the sametime to a term ofimprisonment for the same or a different offense that is not a petty offense." Id. § 3561(a)(3). The language "that is not a petty offense" modifies the language preceding it. Thus, while a defendant's sentence ofa term ofimprisonment may affect
a court's ability to imposeprobation, thepetty-offense clause limits this exception. There are two possible ways that the petty-offense clause may interact with the language preceding it. Under the grammatical rule of the last antecedent, "a limiting clause or phrase
... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Paroline v. United States, 572 U.S. 434,447 (2014) (quotingBarnhart v. Thomas, 540 U.S. 20, 26 (2003)) (ellipsis in original). The last antecedent here is the noun "offense." But is the "offense" in question "the same or a different offense" or only "a different offense"? Grammatically speaking, the "offense" at issue-and the backward reach of the petty-offense clause-tum on whether the word "same" functions as an adjective or a pronoun. If"same" is a pronoun, thenthepetty-offense clause would apply onlyto "adifferent offense"becausea limiting clause will not ordinarily extend to another, earlier noun. But if ''the same" functions as an

8adjective, the petty-offense clause would extend to "the same or a different offense" because the adjectival phrase "the same or a different" identifies which "offense" is at issue. The court's determination about how to apply the petty offense clause modifier is "context dependent." Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1169 (2021). Here, thepetty-offense clause extends to the ''the same ora different offense"inits entirety because "same" functions as an adjective. The Court begins with the phrase itself. The phrase lacks ''unexpected internal modifiers or structure." Lockhart v. United States, 577 U.S. 347, 352 (2016). No comma separates the phrases "the same" and "or a different offense." See Antonin Scalia & BryanA. Gamer, Reading Law: The InterpretationofLegal Texts 161 (2012) (explaining that punctuation ''will often determine whether a modifying phrase or clause applies to all that preceded it or only to a part"). While "different offense" is set offby the word "a," the Court agrees withthe governmentthat this indefinite article is grammatically necessary. The determiner ''the" preceding the word "same" would not naturally apply to an otherwise undefined "different offense." Stated differently, the sentence would be grammatically incorrect without the "a," and drafters are "presumed to be grammatical in their compositions." Scalia & Gamer, supra, at 140. The phrase thus lacks obvious indicators that "same" is functioning as a pronoun or that the backward reach ofthe petty-offense clause should be limited to only "adifferent offense." Moving beyond the phrase itself, there are additional indicators in the text that "same" is functioning as an adjective. First, the last antecedent rule would apply with equal force to "the same" ifit was a pronoun. Thus, the reader would berequired to look backward to determine the what ''the same" is referring to. See Scalia & Gamer, supra, at 144 ("A pronoun ... generally refers to the nearest reasonable antecedent"). Here, that is a "heavy lift." Lockhart, 577 U.S. at 351. The reader would be required to reach back across several nouns within the

9subprovision (i.e., "imprisonment," "defendant"), across two subprovisions withinthe section, and past anothernoun found inthe section'sintroductorylanguage (i.e., "term"). Itmaybeimprobable that "same" would refer to these other words in the context ofthe statute, but the clearest and closest indicator that "same" is referring to "offense" is the subsequent reference to "offense." Second, "same" is not used as a pronoun in the two preceding provisions to describe the instant offense for which the defendant is being sentenced. See§ 356l(a)(l)-(2). Instead, the preceding provisions say "the offense." Id. And third, "same" is used in the same subprovision as an adjective. See§ 356l(a)(3) ("the defendant is sentenced at the same time"). "[T]here is a natural presumption that identical words used in different parts ofthe same act are intended to have the
samemeaning." At/. Cleaners &Dyers, Inc. v. UnitedStates, 286 U.S. 427,433 (1932). All these textual clues support the Court's conclusion that Congress used "same" as an adjective in this context, and that the reach ofthe petty-offense clause should not be limited to only "a different offense." When determining the meaning ofstatutes, courts also "may consider the common usage" of the relevant terms or phrases. Inner City Broad. Corp. v. Sanders, 733 F.2d 154, 158 (D.C. Cir. 1984) (citing ConsumerProd. Safety Comm 'n v. GTESylvania, Inc., 447 U.S. 102, 109 (1980). Congress's common usage ofthe phrase ''the same or a different" in other statutes also supports the Court's conclusion. Whenused as partofthephrase "the same ora different" inother provisions ofthe U.S. Code, Congress consistently uses "the same" as an adjective modifying the
noun following it. See, e.g., 34 U.S.C. 

### § 12475 ("[A]ssisting victims who need to leave a public housing, tribally designated housing, or assisted housing unit quickly to protect their safety, including those who are seeking transfer to a new public housing unit, tribally designated housing unit, orassistedhousingunit, whetherinthe same ora differentneighborhoodor jurisdiction
...."

10

### (emphasis added)); 5 U.S.C. § 

### 8412a(b)(3) ("A phasedretiree
...maytransferto anotherposition in 

### the same or a different agency, only ifthe transfer does not result in a change in the working percentage." (emphasis added)); 10 U.S.C. § 

### 1447(1 l)(B) ("A child who is a student is considered not to have ceasedto be a student during aninterimbetween school years ifthe interim is notmore than 150 days and ifthe child shows to the satisfaction ofthe Secretary ofDefense that the child has a bona fide intention ofcontinuing to pursue a course ofstudy or training in 

### the same or a differentschoolduring the school semester ... immediately afterthe interim." (emphasis added)). A survey of the phrase's common usage across other legal contexts also confirms the Court's interpretation. Again, when used in the phrase "the same or a different," the "same" is consistently used as an adjective to modify the subsequent noun. 

### See, e.g., FRE 804(b)(l) ("Testimony given as a witness in 

### the same or a different proceeding
..." (emphasis added)); 

### Currier v. Virginia, 138 S. Ct. 2144, 2155 (2018) (Gorsuch, J.) 

### ("Ifissue preclusion really did exist in criminal law, why wouldn't itpreclude the retrial ofany previously tried issue, regardless whether that issue stems from 

### the same or a different 'criminal episode'? (emphasis added)); Restatement (Second) ofJudgments 

### § 27 ("When an issue offact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to thejudgment, the determination is conclusive in a subsequent action between the parties, whether on 

### the same ora different claim." (emphasis added)); 

### United States v. Mendoza, 464 U.S. 154, 159 n.4 (1984) (Rehnquist, J.) 

### ("Offensive use ofcollateral estoppel occurs when a plaintiffseeks to foreclose a defendant from relitigating an issue the defendant has previously litigated unsuccessfully in another action against 

### the same ora differentparty." (emphasis added)). Having considered these textual indicators, context, and common usage, the Court is persuaded that "same" is functioning as an adjective in this context. The petty-offense clause

11clearly modifies "offense," and the particular "offense" at issue is described in the preceding phras~''the same or a different." "When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clauseberead as applicable to all." 

### Paroline v. UnitedStates, 572 U.S. 434, 447 (2014) (quoting 

### Porto Rico Railway, Light & 

### Power Co. v. Mor, 253 U.S. 345, 348 (1920)); 

### see 2A Shambie Singer & Norman 

### J. Singer, Sutherland Statutes and Statutory Construction§ 47:33 (''Thelast antecedent is 'thelast

### word,phrase, orclausethat canbemade an antecedent without impairing the meaning ofthe sentence."' (emphasis added)). Thus, the reach ofthe petty-offense clause extends all the way to "the same or a different offense." While§ 356l(a) limits a court's authority to impose a sentence ofimprisonment followed by probation, this limitation does not apply ifthe underlying offense (or a different offense for whichthe defendantis sentencedto imprisonmentinthe same sentencing) ispetty. Inotherwords, § 356l(a) affirmatively authorizes a sentencing court to impose a sentence ofprobation when the defendant has been sentenced to imprisonment and the offenses for which he has been sentenced to imprisonment are petty. The Court respectfully disagrees that "aplain reading" of§ 3561 requires "a district court [to] choose between probation and imprisonment when imposing a sentence for a petty offense." 

### Spencer, slip op. at 5 (quoting

### Martin, 363 F.3d at 35). Section 356l(a)(3) begins with a default rul~acourtmustchoosebetweenimprisonment andprobationwhen sentencinga defendant. But the phrase ''that is not a petty offense" qualifies that default rule with an exception. Interpreting § 3561 to treat imprisonment and probation as mutually exclusiveunder all circumstances renders the phrase ''that is not a petty offense" meaningless. But courts "presume that Congress did not 'include words that have no effect,' and so [they] generally 'avoid a reading that renders some

12words altogether redundant."' Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1068 (D.C. Cir. 2018) (citation omitted). The Court's interpretation here gives full meaning and effect to all the words in§ 356l(a). Finally, Little proposes another interpretation of§ 3561(a)(3) divorced from any ofthese textual possibilities. He contends that when a federal judge sentences a defendant on multiple counts, thejudge "decides on a sentence on the more serious counts . . . and then considers the sentences for any petty offenses separately, without being bound in any way by the decision on the more serious counts." Def.'s Mem. 3. This argument is meritless. Little focuses primarily on how the applicable Sentencing Guidelines are calculated when there are multiple counts, and the fact that the Sentencing Guidelines do not apply to petty offenses. See Def.'s Mem. 2-3. But the text of § 3561(a)(3) forecloses Little's interpretation. When a defendant is sentenced to imprisonment for a non-petty offense-whether that be for the same "or a different offense"- probation is not authorized. 18 U.S.C. § 3561(a)(3). But when the defendant is sentenced to imprisonment for petty offenses, a sentence ofprobation is permissible. 

### C. Section 3561(a)(3) Provides An Exception To Section 3551's General Rule That Imprisonment and Probation Are Mutually Exclusive Having determined the meaning of§ 3561(a)(3), the next issue for the Court is how to interpret this provision in conjunction with§ 355l{b). As explained below, § 3561 provides an exception to § 3551(b)'s default rule that imprisonment and probation are mutually exclusive. Whentheterms of§ 3561 'sexceptionaremet-thatis, thedefendantis sentencedto imprisonment only for a petty offense or offenses-§ 3561(a)(3) authorizes a sentencing court to impose a sentence ofimprisonment and probation, despite the language in§ 355l(b). This interpretation is consistent with the statutorytext, structure, and context.

13First, a plain-text reading ofthe statute leaves open the possibility of exceptions to the defaultrule that imprisonment andprobation are mutually exclusive. Recall the openingprovision of§ 355l(a). Theprovisions within its chapter apply "except as otherwise specificallyprovided." 18 U.S.C. § 3551(a). So, by the terms ofthe statute itself, the default rule that imprisonment and probation are mutually exclusive will not apply if another provision "otherwise specifically provide[s]" an exception to that default rule. For the reasons explained above, the text of § 356l(a)(3) contains a specific provision that exempts petty offenses from this default rule and authorizes split sentences inpetty-offense cases. To the extent that there is any lingering ambiguity, other canons ofinterpretation only reinforce this conclusion. Even without the "otherwise specifically provided" language, "it is a commonplace ofstatutory construction that the specific governs the general." RadLAXGateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)). This canon is ''most frequently applied to statutes in which a general permission orprohibition is contradicted by a specific prohibition orpermission. To eliminate the contradiction, the specific provision is construed as an exception to the general one." Id. (citingMorton v. Mancari, 417 U.S. 535, 550--51 (1974)). That is the casehere: Section 3561(a)(3)'s grant ofauthority provides a narrow exception to Section 3551(b)'s general rule. This canon ensures that allofCongress's goals set forth inthe text are implemented. As a leading treatise explains, "the specific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving ofcredence." Scalia & Gamer, supra, at 183. The context ofthese statutes illustrates this principle. A court sentencing a defendant to a term of imprisonment may generally "include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment." 18 U.S.C.§ 3583(a).

14But supervised release is 

### not authorized for petty offenses. 

### See id. § 3583(b)(3). Thus, the authorization in Section 3561 provides an alternative way for the Court in petty-offense cases to engage in "postconfinement monitoring" after the defendant is released from imprisonment-by sentencing the defendant to a split sentence. 

### Johnson, 529 U.S. at 697.2 A contrary interpretation-that the Court must "choose between probation and imprisonment when imposing a sentence for a petty offense," 

### Spencer, slip op. at 5-results in surplusage. But the Court must be careful to, ifpossible, give meaning and effect to every word and provision. 

### Mercy Hosp., 891 F.3d at 1068. If Section 3551 requires imprisonment and probation to bemutually exclusive in

### all circumstances, then there are 

### no circumstances in which Section 3561 's narrow carveout for petty offenses would apply. Stated differently, the language in Section 3561(a)(3) would cease to have any meaning. The Court will not adopt such an interpretation. 

### See 2A Singer 

### & Singer, Sutherland Statutes and StatutoryConstruction 

### §46:6 ("It is an elementary rule ofconstruction that effect must be given, ifpossible, to every word, clause and sentence of a statute."). Treating Section 356l(a)(3) as a narrow exception to the rule in Section 3551 avoids that outcome. 3

2 A peek at the provisions' relative placement within Chapter 227 and the titles of the two relevant subchapters reinforces the idea that§ 3561 functions as the specific exception to§ 3551. While "subchapter heading[s] cannot substitute for the operative text ofthe statute," "statutory titles and sections are tools available for the resolution ofa doubt about the meaning ofa statute." Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (internal quotation marks and citation omitted). Section 3551 is placed in Subchapter A, which is titled "General Provisions," while§ 3561 is placedin SubchapterB, which is titled "Probation." Itis not surprising that theparticular contours ofwhen probation may and may not be imposed would be found in the subchapter focused exclusively on that subject ofprobation. 3While not raised by Little, the Court will note brieflyhere that the rule oflenity does not affect the Court's decision because the issue in this case is resolved entirelybyreference to the statutory text and context. See Moskal v. United States, 498 U.S. 103, 108 (1990) ("[W]e have always reserved lenity for those situations inwhich a reasonable doubt persists about a statute's intended scope even after resort to 'the language and structure, legislative history, and motivating policies' ofthe statute." (quoting Bifalco v. UnitedStates, 447 U.S. 381,387 (1980))
15In sum, despite the language in Section 3551, Section 3561(a)(3) permits a sentencing judge to impose a term ofprobation at the same time as a term ofimprisonment when a defendant is sentenced to imprisonment for only a petty offense or offenses. III. CONCLUSION Forthe foregoing reasons, the Court concludes that imposition ofsixty days' imprisonment and thirty

-six months' probation is permitted by statute and warranted bythe circumstances ofthis
case. The Court will also impose a ten
-dollar special assessment and $500 restitution, payable to the Architect ofthe Capitol.

Date:

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/

_ ~

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_ _ _ Royce C
. Lamberth United States District Judge

16