06-0131-cr
U.S. v. Whitley



                            UNITED STATES COURT OF APPEALS

                                FOR THE SECOND CIRCUIT

                                     August Term 2007

Heard:        April 14, 2008                              Decided:     June 16, 2008

Petition for rehearing submitted:               August 7, 2008
Petition for rehearing decided:                 August 26, 2008

                                Docket No. 06-0131-cr

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UNITED STATES OF AMERICA,
          Appellee,

                       v.

LATIE WHITLEY,
          Defendant-Appellant.
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Before: NEWMAN, SACK, and B.D. PARKER, Circuit Judges.

         On petition by the United States of America for rehearing.

Rehearing denied.

                                         Michael J. Garcia, U.S. Atty., Anjan
                                           Sahni, Jonathan S. Kolodner, Asst.
                                           U.S.   Attys.,   New   York,   N.Y.,
                                           submitted a brief for Appellee.

JON O. NEWMAN, Circuit Judge.

         The      Government   has   petitioned    for   review   of   our   decision

declining to depart from the literal wording of the “except” clause

of 18 U.S.C. § 924(c)(1)(A). See United States v. Whitley, 529 F.3d

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150 (2d Cir. 2008).      The petition mainly repeats arguments we have

previously considered and rejected.            The petition also endeavors to

counter   our    statement   that,   other     than   the   contrary   authority

concerning the “except” clause, which we acknowledged, “[w]e are aware

of no decision rejecting the literal meaning of statutory language to

the detriment of a criminal defendant.” Id. at 156.            Assuring us that

“[c]ourts have often declined to apply the literal meaning of a

statute . . ., even where the literal interpretation [sic] of the

statute would favor the defendant,” Pet. for Reh’g 16 (emphasis

added), the Government calls three decisions to our attention.

      In United States v. Brown, 333 U.S. 18 (1948), a statute required

a sentence for escape or attempted escape to begin upon the expiration

of “any sentence under which such person is held at the time of” the

escape or the attempt. 18 U.S.C. § 753h (1946).             The issue, as stated

by the Supreme Court, was whether “any sentence” referred to “the

particular sentence being served when the attempt occurs or at the

expiration of the aggregate term of consecutive sentences then in

effect, of which the one being served is the first.” Brown, 333 U.S.

at 19.    The Court concluded that the statute “on its face and taken

in its entirety sufficiently expresses the congressional mandate that

the   sentence   for   escape   is   to   be   superimposed     upon   all   prior

sentences,” id. at 25, i.e., at the expiration of the consecutive

sentences being served at the time of the attempt.                     The Court

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recognized that it was not giving the statute a strict construction,

normally applicable to criminal statutes, see id. at 25-26, but there

is no suggestion that the Court thought it was departing from the

literal wording of the statute.

     In United States v. Cook, 384 U.S. 257 (1966), a statute

prohibited embezzlements by employees of “any firm, association or

corporation engaged in commerce as a common carrier.” 18 U.S.C. § 660

(1964).      The   issue   was   whether    “firm”   included   an   individual

proprietor.    The Court concluded that it did.        “[T]he term ‘firm’ is

certainly broad enough in common usage to embrace individuals acting

as common carriers[.]” Cook, 384 U.S. at 260-61 (footnote omitted).

Again, the Court recognized that it was not giving the statute a

strict construction, id. at 262, but it was not departing from the

literal wording of the statute.

     The third of the Government’s cases, United States v. Smith, 874

F.2d 371 (6th Cir. 1989), is the only one in which the literal

language of a criminal statute was disregarded to the detriment of a

defendant.    A transition provision of the Comprehensive Crime Control

Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984), stated that

specified provisions of law “shall remain in effect for five years

after the effective date as to an individual convicted of an offense

. . . before the effective date . . . .” Id. § 235(b)(1) (emphasis

added).   Recognizing an apparent drafting error inconsistent with the

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Senate Report on the Act, Congress quickly amended section 235(b)(1)

to change “convicted” to “committed.” See Pub. L. No. 100-182, 101

Stat. 1266.

       The Sixth Circuit declined to follow the literal wording of the

unamended provision because, in the circumstances of the defendant’s

case, to do so would have resulted in the defendant being subject to

no sentence at all, “a result with no basis in reason.” Smith, 874

F.2d   at   373.   The   Court   relied    on   the   explicit   indication   of

Congressional intent contained in the Senate Report on the original

Act, which stated, “As to an offense committed prior to the effective

date, the pre-existing law will apply . . . .” S. Rep. No. 225, 98th

Cong., 2d Sess., 189, reprinted in 1984 U.S.C.C.A.N. 3182, 3372

(emphasis added). See Smith, 874 F.2d at 373.

       Unlike the situation in Smith, the literal wording of the

“except” clause of 18 U.S.C. § 924(c)(1)(A) does not lead to a result

“with no basis in reason,” and is not contrary to an explicit

statement of Congressional intent.          The literal wording leaves no

defendant unsentenced.     Indeed, as we pointed out, Whitley, 529 F.3d

at 155, it leaves sentencing judges free to impose precisely the same

number of years that the Government contends should have been imposed

on Whitley, but authorizes them to do so as a matter of discretion,

not as a requirement.

       The petition for rehearing is denied.

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