                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1325

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                         SHAUN K. O'NEIL,
                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]
                                                   

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                 and Barbadoro,* District Judge.
                                               

                                             

     William Maselli for appellant.
                    
     Michael  M. DuBose, Assistant  United States  Attorney, with
                       
whom Jay P. McCloskey, United  States Attorney, was on brief, for
                     
appellee.

                                             

                        December 15, 1993

                                             

          
*Of the District of New Hampshire, sitting by designation.

          SELYA,  Circuit  Judge.   Concluding,  as  we  do, that
          SELYA,  Circuit  Judge.
                                

several  courts of  appeals  have  read  the  supervised  release

revocation  provision (SRR  provision),  18  U.S.C.    3583(e)(3)

(1988 &amp;  Supp. III 1991), in too crabbed  a manner, we hold today

that  this statute  permits a  district court, in  resentencing a

person who  has violated  the conditions of  his or  her original

term of  supervised release, to  impose a new term  of supervised

release in conjunction with an additional prison term, subject to

certain restrictions limned  in the statute  itself.  Because  we

are staking out a position at variance with the majority view, we

write at some length to explain our rationale.

I.  BACKGROUND OF THE CASE

          After having broken into a post office  and stolen mail

in  violation  of  18 U.S.C.      1708,  2115  (1988), defendant-

appellant Shaun K. O'Neil pleaded guilty to a class D felony.  On

November 9,  1990,  the district  court  sentenced him  to  serve

twenty-one months in prison (the  top of the applicable guideline

sentencing  range), followed by three years of supervised release

(the maximum allowed by statute).  We affirmed the sentence.  See
                                                                 

United States v. O'Neil, 936 F.2d 599 (1st Cir. 1991).  
                       

          Soon after his release from the penitentiary, appellant

committed  several  significant   violations  of  the  supervised

release conditions,  e.g., stealing a firearm  while intoxicated.
                         

Dubbing appellant a  "walking juvenile crime  wave" who posed  "a

serious danger  to the  public," the district  judge revoked  the

original term of supervised release and sentenced appellant to an

                                2

additional twenty-four months in prison,  to be followed by a new

three-year  supervised release term.  O'Neil appeals, asking that

we  vacate  his  sentence  and  remand  for  resentencing.    His

principal  allegation  is  that  the reimposition  of  supervised

release exceeds the district court's statutory authority.

II.  THE STATUTE

          Passed as part of the Sentencing Reform Act of 1984, 18

U.S.C.    3551-3559, 3561-3566, 3571-3574, 3581-3586, &amp; 28 U.S.C.

    991-98 (1988  &amp; Supps.),  the  supervised release  alteration

statute, 18  U.S.C.   3583(e),  of which  the SRR provision  is a

part, authorizes a court to alter a term of supervised release in

a number of ways.  A court may:

          (1)  terminate a  term of  supervised release
          and discharge the person released at any time
          after   the  expiration   of   one  year   of
          supervised release . . . ;

          (2)  extend a term  of supervised  release if
          less  than the  maximum  authorized term  was
          previously imposed,  and may  modify, reduce,
          or  enlarge  the   conditions  of  supervised
          release,  at any time prior to the expiration
          or  termination  of  the  term of  supervised
          release . . . ;

          (3) revoke a term  of supervised release, and
                                                       
          require  the person to serve in prison all or
                                                       
          part  of  the   term  of  supervised  release
                                                       
          without credit for time  previously served on
          postrelease  supervision, if  it  finds by  a
          preponderance of the evidence that the person
          violated a  condition of  supervised release,
          pursuant  to the  provisions  of the  Federal
          Rules   of   Criminal  Procedure   that   are
          applicable to probation revocation and to the
          provisions  of  applicable  policy statements
          issued by  the Sentencing  Commission, except
          that  a person  whose term  is  revoked under
          this  paragraph may not  be required to serve
          more  that 3 years  in prison if  the offense

                                3

          for  which  the  person was  convicted  was a
          Class  B  felony,  or more  than  2  years in
          prison  if the  offense  was a  Class C  or D
          felony; or

          (4) order the  person to remain at  his place
          of residence during nonworking hours . . . . 

18 U.S.C.   3583(e) (emphasis supplied).  The present controversy

centers on the third of these four options.

          The alteration  statute empowers a  resentencing court,

in certain circumstances,  to elongate a previously  imposed term

of  supervised  release, 18  U.S.C.    3583(e)(2),  or,  in other

circumstances, to  revoke supervision and impose  imprisonment in

lieu  of supervision, id. at    3583(e)(3).  What is unclear, and
                         

what  has confounded  the  courts,  is  whether  an  intermediate

resentencing option  exists:  Does  the statute allow a  court to

revoke  supervision and,  in effect, restructure  the defendant's

sentence by imposing  a combination of imprisonment  plus further

supervision?

          Although this court has never addressed the question, a

minimum of  six circuits have  read the statute to  foreclose the

reimposition of a term of supervised release following revocation

and  imprisonment.  See United  States v. Truss,  4 F.3d 437, 438
                                               

(6th Cir.  1993); United  States v. McGee,  981 F.2d  271, 274-76
                                         

(7th Cir. 1992);  United States v. Koehler, 973  F.2d 132, 134-36
                                          

(2d Cir.  1992); United  States v. Cooper,  962 F.2d  339, 340-42
                                         

(4th Cir.  1992); United States  v. Holmes, 954 F.2d  270, 271-73
                                          

(5th Cir. 1992); United States v. Behnezhad, 907 F.2d 896, 898-99
                                           

(9th Cir.  1990); see  also United  States v.  Gozlon-Peretz, 894
                                                            

                                4

F.2d 1402,  1405 n.5  (dictum), amended, 910  F.2d 1152  (3d Cir.
                                       

1990), aff'd  on other grounds, 498  U.S. 395 (1991).   The Tenth
                              

Circuit  came to the  same conclusion belatedly,  after reversing

its field.   See United States v.  Rockwell, 984 F.2d  1112, 1117
                                           

(10th Cir.)  (overruling United States  v. Boling, 947  F.2d 1461
                                                 

(10th  Cir. 1991)), cert.  denied, 113 S.  Ct. 2945 (1993).   The
                                 

Eleventh Circuit  has sent  mixed signals.   In United  States v.
                                                              

Tatum,  998 F.2d 893,  894-95 (11th Cir. 1993) (per curiam),  the
     

court  embraced the  majority view.   A  second panel,  two weeks

later, bowed to  Tatum on stare decisis grounds; but,  in a sharp
                                       

departure  from  customary practice,  all three  judges expressed

their profound  disagreement with  Tatum's holding.   See  United
                                                                 

States v. Williams, 2 F.3d 363, 365 (11th Cir. 1993).  Thus, nine
                  

circuits in all  read the SRR  provision narrowly.  On  the other

side of the  ledger, the Eighth Circuit  stands as a waif  in the

wilderness.  See United States  v. Schrader, 973 F.2d 623, 624-25
                                           

(8th  Cir. 1992)  (holding that  section  3583(e)(3) permits  the

reimposition of a term of supervised release following revocation

and imprisonment);  see also United  States v. Levi, 2  F.3d 842,
                                                   

846 (8th Cir. 1993) (reaffirming Schrader).
                                         

          We  are called  upon  today  to add  our  voice to  the

chorus.  We  approach this task mindful that,  while the decision

to revoke a term  of supervised release is ordinarily  reviewable

for abuse of  discretion, the quintessentially legal  question of

whether  a  post-revocation  sentence  exceeds  statutory  limits

necessitates plenary  review .   See Rockwell, 984 F.2d  at 1114;
                                             

                                5

see also United  States v. St. Cyr,  977 F.2d 698, 701  (1st Cir.
                                  

1992) (holding  that interpretive questions under  the sentencing

guidelines should be reviewed de novo).
                                     

III.  THE COMPETING INTERPRETATIONS

          We start our quest by elucidating the two ways in which

the SRR provision may be read as a coherent command.

                               A   
                               A

          To  achieve the  result  reached  by  the  majority  of

courts, the  assiduous reader  must proceed  along the  following

lines.  First, read the word "revoke" restrictively, i.e., in the
                                                         

sense of  "cancel" or "annul,"  so that it does  not allow either

the recommencing of the previously imposed term of supervision or

the commencement  of a  new term of  supervision.   Next, suppose

that the word  "term", when used for  the second time in  the SRR

provision, does not  imply that there is a term of supervision in

existence,  but merely  serves to  set  a temporal  limit on  the

prison sentence that may be imposed following revocation; or, put

another way, that the second use of the word "term" is to be read

as if it were shorthand for a more verbose phrase like  "the time

period equivalent  to what would  have been the  term."  Only  if

these interpretive steps  are taken does  it become clear,  under

the SRR provision, that a  court may absolutely extinguish a term

of supervised  release and impose  a new prison term,  subject to

certain statutory limitations,1  but, withal, may not  impose any

                    

     1On  the majority's reading, the  statutory limit in a given
case  is the  lesser of (i)  the length  of the original  term of
supervision, or (ii) the numerical limit designated  by the final

                                6

other or further supervision term.

                                B

          The  other  possible  parsing   of  the  SRR  provision

proceeds  in  three  phases.     At  the  outset,  consider   the

possibility  that the  word "revoke"  means simply to  "recall." 

See, e.g., Black's Law  Dictionary 1322 (6th ed.  1990) (defining
                                  

"revoke" as "[t]o annul  or make void by recalling or taking back

. . . .").  If "revoke" is read in this way, the SRR provision is

not inconsistent  with the recommencement of  supervised release.

Next, from  the fact that the  SRR provision mentions a  "term of

supervised release"  in that portion  of the  text following  the

conferral of the power to  revoke, the reader plausibly can infer

that  the supervision  term recommenced  upon  revocation    else

there  would be  no  term  then in  existence.   Finally,  having

posited   that  the   supervision  term   is   alive  and   well,

notwithstanding the court's  order of revocation, the  reader can

conclude  that, in  authorizing the  court  to send  a person  to

prison after revocation for  "all or part of  the term," the  SRR

provision contemplates that  any remaining part of  the original,
                                          

recalled term will  be devoted to supervision.   On this reading,

the  SRR  provision  allows  a  court to  call  back  a  term  of

supervised release, recommence the term,  convert all or part  of

                    

clause of  the SRR  provision vis-a-vis  each specified  class of
offense.

                                7

it into  jail time (up to  the statutory limit),2  and retain any

remainder as a period of non-detentive monitoring. 

          Before  leaving these  competing versions,  we wish  to

make two preliminary points.  First, we do not regard the initial

step  in these  analyses to  be  indispensable.   See infra  Part
                                                           

IV(A).    Second, each  of  the competing  versions  requires the

reader to make a leap of faith beyond the four corners of the SRR

provision  itself.   In this  sense, then,  the playing  field is

level.

IV.  CHOOSING AN INTERPRETATION

          We turn to the difficult choice between these meanings,

using the  full panoply of available aids to the  construction of

legislative enactments.

                                A

          In   approaching  statutory   interpretation,  "it   is

axiomatic that the plain words  and structure of the statute must

be paramount."   United States v. Aversa, 984  F.2d 493, 498 (1st
                                        

                    

     2On  this  reading  of  the SRR  provision,  there  are  two
operative limits in  any given case.  First,  the combined length
of   all    post-revocation   impositions    (incarcerative   and
supervisory) may  not exceed the  length of the original  term of
supervision.   Second,  the incarcerative  portion  of the  post-
revocation sentence may not exceed the numerical limit designated
by  the SRR provision's final clause  for the class of offense in
question.  It will be noted that, on this reading, the concluding
clause of  the SRR  provision places an  absolute ceiling  on the
time a person may  serve in prison following revocation of a term
of  supervised  release  and thereby  ensures  that  the criminal
justice system cannot trap an offender in its  web forever.  This
point adequately answers those who assert that construing the SRR
provision  broadly sets  the stage  for a  never-ending  cycle of
revocation,  resentencing   to  prison   plus  supervision,   and
revocation again, see McGee, 981 F.2d at 275.
                           

                                8

Cir. 1993) (en banc).  Most of the courts that have  read section

3583(e) to foreclose the imposition of a post-revocation  term of

supervised  release  have done  so  under  the  banner  of  plain

meaning.   Those courts read  the word "revoke" as  signifying an

extinguishment so uncompromising as to preclude a post-revocation

term of supervision.  See, e.g., McGee, 981 F.2d at 274; Koehler,
                                                                

973 F.2d at  134-35; Holmes,  954 F.2d at  272.  This  inflexible
                           

insistence upon a particular  version of lexicographic  orthodoxy

seemingly overlooks  that "the  plain-meaning doctrine  is not  a

pedagogical absolute."  Greenwood Trust Co. v. Massachusetts, 971
                                                            

F.2d  818, 825  (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 974
                                               

(1993).   In  particular, "[t]erms  in an  act whose  meaning may

appear plain  outside the  scheme of  the statute  can take  on a

different  meaning  when  read in  their  proper  context."   Id.
                                                                 

(citing various Supreme Court precedents).

          The  Williams court  found "revoke"  plain enough,  but
                       

read it differently.  It suggested that "revoke" could be read in

the  alternative sense of "call back."   Williams, 2 F.3d at 365.
                                                 

This sense  is best illustrated  by the poet William  Cowper, who

wrote:

          How readily we wish time spent revok'd,

          That we might try the ground again. . . . 

The Task,  Book VI,  l.25 (1784);  see also supra  p. 7  (quoting
                                                 

Black's  Law  Dictionary).   While  we  regard  this approach  as

plausible,  we   do  not   see  why  even   the  most   inelastic

interpretation of "revoke"  would frustrate a reading  of the SRR

                                9

provision  that permits imposition  of a post-revocation  term of

supervision.    If  a  term  has been  called  back,  it  may  be

reimposed.  If a term has been absolutely terminated, a  new term
                                                            

still may be imposed    in the same  way that, once a  license is

revoked, a  new one  may be  issued.   In the  end, the  semantic

debate over the  word "revoke" turns out  to be no more  than the

swapping  of heuristics.  No matter how  the word is defined, the

language of the SRR provision  is consistent with the possibility

that  a post-revocation  term  of  supervision  lawfully  may  be

imposed.

          We  believe  this linguistic  intuition is  verified by

historical  precedents.    Previous  Congresses  used   the  word

"revoke"  in  crafting  the  statutory  forerunners  of   section

3583(e)(3).   See, e.g., 18  U.S.C.   4214 (1988)  (repealed 1984
                       

anent offenses committed  after November 1, 1987)  (revocation of

parole); 21 U.S.C.A.   841(c) (1981 &amp; Supp. 1993) (repealed 1984)

(revocation of special parole); 18 U.S.C.   3653 (1988) (repealed

1984 anent offenses committed after November 1, 1987) (revocation

of  probation).   Notwithstanding  Congress's  use  of  the  word

"revoke," it was widely thought  that reimposition of a period of

non-detentive monitoring,  to commence  following post-revocation

imprisonment, was permitted  under all three of  these antecedent

statutory provisions.  See infra Part IV(D).
                                

                                B

          Our structural analysis of the  alteration statute and,

particularly,  of the SRR  provision starts with  the recognition

                                10

that  the  first  appellate court  to  interpret  section 3583(e)

rested its holding  on the notion that the  alteration statute is

structured as  a set  of discrete options  separated by  the word

"or."   Given  the shape  of the  statute, the court  reasoned, a

judge  may either  "extend" the  term under subsection  (e)(2) or

"revoke"  it  under  subsection  (e)(3),  but   not  both.    See
                                                                 

Behnezhad, 907 F.2d  at 898-99.  Subsequent courts  quickly moved
         

beyond this  restrictive rationale,  realizing that it  collapses

into  the debate  over  the  meaning of  the  SRR provision  and,

therefore, proves  nothing.  See,  e.g., McGee, 981 F.2d  at 274;
                                              

Holmes, 954 F.2d at 272.
      

          To the extent  that the repeated use of the disjunctive

in section  3583(e)  sheds any  light  on Congress's  intent,  we

believe that it favors a broad reading of the SRR provision.  The

first principal option that the alteration  statute presents to a

district  judge is  to "terminate"  the  supervised release  term

previously imposed under subsection (e)(1).  If Congress meant to

"revoke" supervised  release in  the hard sense  of the  word, it

could simply  have used  the same language  twice.   Most likely,

then, to  "revoke" as used  in the SRR provision  means something

other than to "terminate".

                                C

          Two  general  principles  of  statutory  interpretation

inform  our  conclusion that  the  SRR provision  cannot  be read

grudgingly:   the  principle that  the grant  of a  greater power

necessarily  includes the  grant of  a lesser  power, unless  the

                                11

authority to exercise  a lesser power is  expressly reserved; and

the  principle  that  statutes  should  not  be  read to  produce

illogical results.

          1.   The Greater  Includes the  Lesser.   The principle
          1.   The Greater  Includes the  Lesser.
                                                

that the grant  of a greater power includes the grant of a lesser

power is  a  bit of  common  sense that  has  been recognized  in

virtually every  legal code from  time immemorial.  It  has found

modern expression primarily  in the realm of  constitutional law.

See, e.g., City  of Lakewood v. Plain Dealer  Publishing Co., 486
                                                            

U.S.  750, 763  (1988)  (commenting that  the  power to  prohibit

speech entirely  includes the lesser  power to license it  at the

government's  discretion);  Posadas  de  Puerto  Rico Assocs.  v.
                                                             

Tourism Co., 478 U.S. 328, 345  (1986) (holding that the power to
           

ban  casino  gambling  includes  the  lesser  power  to  prohibit

advertising of casino gambling).

          While  this principle has nested less frequently in the

criminal law context, it is fully applicable in that milieu.   To

illustrate,  we  use  an  example  that  bears  a  strong  family

resemblance  to the  problem  at hand.    The federal  sentencing

guidelines originally  stated  that  "an  extraordinary  physical

impairment  may be  a  reason  to impose  a  sentence other  than

imprisonment."  U.S.S.G.  5H1.4, p.s. (Nov. 1990).   Three courts

of  appeals, including  this  one,  refused  to  understand  this

provision to require an all-or-nothing choice between imposing an

incarcerative  sentence within the guideline range or imposing no

prison  sentence.     The  courts  reasoned  that,   despite  the

                                12

unvarnished  language of the provision, the greater departure (no

incarceration)  necessarily  included  the  lesser  departure  (a

prison  sentence below  the bottom  of  the guideline  sentencing

range).  See United States v. Slater, 971 F.2d 626, 635 (7th Cir.
                                    

1992);  United States  v. Hilton,  946  F.2d 955,  958 (1st  Cir.
                                

1991);  United States  v. Ghannam,  899 F.2d  327, 329  (4th Cir.
                                 

1990).3

          Similarly, in this  case, we are reluctant  to posit an

all-or-nothing   choice   between  continuing   a   defendant  on

supervised   release   (with   no  further   incarceration)   and

imprisoning  the defendant  (with no  further  supervision).   We

agree with the Eighth Circuit  that if the SRR provision  gives a

district court the  power to sentence an offender to  a full term

of  imprisonment upon revocation, it must necessarily confer upon

the  court "the  power under  that  subsection to  impose a  less

drastic sanction."  Schrader, 973 F.2d at 625.
                            

          2.    Avoiding  Illogical  Results.    It  is  also  an
          2.    Avoiding  Illogical  Results.
                                            

established canon of statutory construction  that a legislature's

words should never be given  a meaning that produces a stunningly

counterintuitive  result   at least if  those words, read without

undue straining, will  bear another, less  jarring meaning.   See
                                                                 

Kelly v. United States, 924 F.2d 355, 361 (1st Cir. 1991); United
                                                                 

States v.  Meyer, 808 F.2d  912, 919 (1st Cir.  1987); Sutherland
                                                                 

                    

     3This   intuition  was   vindicated  by  Congress   and  the
Sentencing  Commission  when,  effective  November 1,  1991,  the
phrase  "other than imprisonment" was  changed to read "below the
applicable guideline  range."   See U.S.S.G.  App. C,  Amend. 386
                                   
(Nov. 1991).

                                13

Stat. Const.   45.12 (5th ed.).  This principle goes back  to the
            

early days of  the Republic.  See M'Culloch v.  Maryland, 17 U.S.
                                                        

(4 Wheat.) 316, 355 (1819). 

          In this case, the sentencing  rule that emerges from  a

narrow reading of section 3583(e)(3) is surpassingly difficult to

defend  from a policy  perspective.  It  is hard to  conceive any

logical   reason  why  Congress  might  authorize  sentencing  an

offender to a non-mandatory term of imprisonment, variable in the

judge's  discretion,  upon  revocation of  a  term  of supervised

release,  but would,  at  the same  time,  withhold authority  to

impose  a sentence  of  equivalent  duration  upon  more  lenient

conditions.  See Williams, 2  F.3d at 365; Schrader, 973  F.2d at
                                                   

625.  Although we could jury-rig a  legislative justification for

so cramped an  interpretation of the  law, we think  it is  self-

evident that barring judges from reimposing supervision following

revocation  needlessly inhibits  the  court's sentencing  options

while at the same time failing to advance any of the  fundamental

goals of criminal sentencing.4   As a matter of policy, then, the

implications for sentencing  inherent in a stingy  reading of the

SRR provision  go a long  way toward convincing us  that Congress

could not have favored (or intended to compel) such a reading.  

                                D

          As  a rule, courts should resort to legislative history

                    

     4The  fundamental goals  of the  Sentencing  Reform Act  are
commonly   thought   to    include   uniformity,   honesty,   and
proportionality.  See  United States v.  Williams, 891 F.2d  962,
                                                 
963-64  (1st Cir.  1989); see  also U.S.S.G.  Ch.1, Pt.A,  intro.
                                   
comment., at  1A2 (Nov. 1992).

                                14

and  other guides  to congressional  intent when  the words  of a

statute  give  rise  to  ambiguity   or  when  they  lead  to  an

unreasonable interpretation.  See, e.g., United States v. Charles
                                                                 

George Trucking Co.,  823 F.2d 685, 688 (1st Cir. 1987); Barry v.
                                                              

St. Paul  Fire &amp; Marine Ins. Co., 555  F.2d 3, 7 (1st Cir. 1977),
                                

aff'd, 438 U.S. 531  (1978).  Though  we believe that a  generous
     

reading  of section 3583(e)(3) best comports with plain language,

statutory structure, logic,  and sound policy, we  are aware that

ambiguity is commonly thought to exist when statutory language is

susceptible    to   differing,    but   nonetheless    plausible,

constructions. See United States v. R.L.C., 112 S. Ct. 1329, 1334
                                          

(1992);  cf. Allen  v. Adage, Inc.,  967 F.2d 695,  700 (1st Cir.
                                  

1992)  (explaining  when  ambiguity  exists  in  the  text  of  a

contract).    Here,  as the  weight  of  authority unquestionably

attests, there is  room for disagreement over the  meaning of the

SRR provision.  Therefore, we continue our inquiry.

          Where  ambiguity  lurks,  the burial  ground  in  which

superseded statutes  rest sometimes  proves a  fertile field  for

assistance in determining the meaning  of existing statutes.  See
                                                                 

Dwight v. Merritt, 140 U.S.  213, 217 (1891); see also Sutherland
                                                                 

Stat. Const.    51.04.  We think that superseded  statutes are of
            

particular value in construing  provisions within the  Sentencing

Reform Act.  We have  recognized   and we believe  the Sentencing

Commission  has recognized    the desirability of  emulating pre-

guidelines practice  to the  extent that plain  meaning does  not

compel  change.    Thus,  we have  repeatedly  referred  to  pre-

                                15

guidelines precedent  as an  aid to  interpreting the  sentencing

guidelines.  See, e.g., United States v. Emery, 991 F.2d 907, 911
                                              

(1st Cir. 1993); United States v. Blanco, 888 F.2d 907,  910 (1st
                                        

Cir. 1989); see also U.S.S.G.   1A3, (Nov. 1992) (stating  policy
                    

that "the  guidelines represent an approach that begins with, and

builds  upon," pre-guidelines  practice).   We  believe the  same

principle applies in construing the Sentencing Reform Act itself.

          To  place   the  genealogy  of  supervised  release  in

historical context,  one must first recognize  that non-detentive

monitoring developed  along two  separate lines:   probation  and

parole.     The  Sentencing   Reform  Act,  and   the  guidelines

implementing  it, swept aside both of these modalities, replacing

probation with an entirely new creature bearing the same name and

replacing parole (as well as its interim variant, special parole)

with supervised release.  See Gozlon-Peretz v. United States, 498
                                                            

U.S.  395, 400 (1991)  (noting that Congress  intended to replace

most forms of  parole, including special parole,  with supervised

release).5  We think  it is of critical importance that, prior to

                    

     5The transition  from special  parole to  supervised release
was grotesquely complicated.   Most existing provisions  for non-
detentive monitoring  were  repealed  in  1984  as  part  of  the
Sentencing Reform Act,  but the repeal did not  take effect until
November  1, 1987.   However,  the special  parole provision,  21
U.S.C.   841(b)(1)(A), was repealed outright.  Thus, from October
12, 1984 through October 27, 1986, neither special parole nor any
substitute for it was in force.  Apparently desiring to eliminate
this  hiatus, Congress  amended  the  law  to  insert  supervised
release in lieu  of special parole for the  interval from October
27, 1986 to November 1, 1987.  Congress accomplished this feat by
amending 21 U.S.C.   841(b) (under which no provision is made for
revocation).   Subsequent to November 1, 1987, supervised release
has been  controlled by the  provisions of the  Sentencing Reform
Act.     See  generally   Gozlon-Peretz,  498   U.S.  at   844-46
                                       

                                16

the sea  change instigated by  the Sentencing Reform Act,  it was

widely understood that any of the existing forms of non-detentive

monitoring   could   follow   a   post-revocation   sentence   of

imprisonment.  We survey the field.

          1.   Probation.  The  debate in which we  are embroiled
          1.   Probation.
                        

today  closely  tracks  an  earlier  debate  over post-revocation

probation.  The relevant pre-guidelines statute empowered a court

to  "revoke  probation,  and  impose  any  sentence  which  might

originally  have been  imposed."  18  U.S.C.    3653 (repealed).6

Under  this law,  five circuits  viewed  probation as  a kind  of

"sentence" that could  be imposed after revocation  of probation.

See Banks v. United States, 614 F.2d 95, 99 n.10 (6th Cir. 1980);
                          

United  States v.  Rodgers, 588  F.2d 651,  654 (8th  Cir. 1978);
                          

Nicholas v. United  States, 527 F.2d 1160, 1162  (9th Cir. 1976);
                          

United  States v.  Lancer, 508  F.2d  719, 730-32  (3d Cir.)  (en
                         

banc), cert. denied, 421 U.S. 989 (1975); Smith v. United States,
                                                                

505 F.2d  893, 895  (5th Cir.  1974).   The Tenth  Circuit and  a

district court in the Fourth Circuit took the opposite view.  See
                                                                 

United  States v.  Martin, 786  F.2d  974, 976  (10th Cir.  1986)
                         

(declining to overrule  Fox v. United States, 354  F.2d 752 (10th
                                            

Cir. 1965)); United States v.  Buchanan, 340 F. Supp. 1285, 1288-
                                       

                    

(explicating historical development).    

     6We consider it significant that no court, on either side of
this  debate,  suggested  that  the  statute's use  of  the  word
"revoke"  might require  a  ban  on the  reimposition  of a  non-
detentive  term  in   sentencing  defendants  who  had   violated
probation.  Instead,  the debate hinged on the  word "sentence"  
specifically, on whether  probation could be conceived  as a kind
of "sentence."

                                17

89  (E.D.N.C. 1972).   When  the  smoke cleared,  "the weight  of

authority heavily  favor[ed] the conclusion that  reimposition of

probation is permissible  upon revocation of probation."   United
                                                                 

States  v.  Urdaneta,  771  F.  Supp.  28,   32  (E.D.N.Y.  1991)
                    

(canvassing pre-guidelines case law).

          Under the  new sentencing regime,  the statute treating

with  post-revocation probation deals much more directly with the

vexed question of  reimposition.  It empowers a  court to "revoke

the sentence of probation and  impose any other sentence that was
                                                        

available at  the time of the  initial sentencing."  18  U.S.C.  

3565(a) (1988) (emphasis supplied).  Although the question is not

before us, and  we, accordingly, do not rule  definitively on it,

it  seems  probable   that  Congress  intended  to   depart  from

prevailing  pre-guidelines practice  and  forbid reimposition  of

probation following the  revocation  of a term of probation.7  We

draw this  inference from the  insertion of the word  "other," on

the theory that  a change in statutory language  should be "read,

if  possible, to have some effect."   American Nat'l Red Cross v.
                                                              

S.G., 112 S. Ct. 2465, 2475 (1992).  It thus appears quite likely
    

that  the  drafters  of  section  3565 were  aware  of  the  pre-

guidelines case law  and knew how to  design a statute in  such a

                    

     7Even  if  Congress  intended to  preclude  reimposition  of
probation  following  revocation  of a  term  of  probation, that
intention has no implications for supervised  release.  Under the
Sentencing Reform  Act, a  term of probation  may not  be imposed
when a  defendant is sentenced to imprisonment.   See 18 U.S.C.  
                                                     
3553(a)(3).  Since a "combined" sentence is prohibited ab initio,
                                                                
it would make little sense to allow a combined form of sentencing
upon revocation of probation.

                                18

way as to address its impact head-on.

          2.   Parole.   There was never  any question  that non-
          2.   Parole.
                     

detentive  monitoring could follow  a prison sentence  imposed in

consequence  of the  revocation of  a term  of parole  or special

parole.  See,  e.g., 28 C.F.R.    2.52  app. (1993) (setting  out
                   

United  States Parole Commission's policy statement to the effect

that "an adequate period of renewed supervision following release

from  reimprisonment  or  reinstatement to  supervision,  must be

available");  id.  at      2.57  (making  the   policy  statement
                 

applicable to special  parole); see also Bentsen  v. Ralston, 658
                                                            

F.2d 639, 640  (8th Cir. 1981) (citing cases  for the proposition

that an erstwhile parolee serving post-revocation prison time may

earn good-time credit applicable to  a second parole period).  In

this context, the  Senate report that accompanied  the Sentencing

Reform  Act  demonstrates  Congress's   awareness  of  the   pre-

guidelines practice:

          Under  [pre-guidelines]  law,  if  a  parolee
          violates a  condition of parole  that results
          in  a  determination  to  revoke parole,  the
          revocation has  the effect  of requiring  the
          parolee  to   serve  the  remainder   of  his
          original  term  of imprisonment,  subject  to
                                                       
          periodic  consideration  for   re-release  as
                                                   
          required for any prisoner who is eligible for
          parole.

S.  Rep.  No.  225,  98th  Cong.  2d  Sess.,  reprinted  in  1984
                                                           

U.S.C.C.A.N. 3182, 3306 (emphasis supplied).

          We  find this  historical phenomenon  to be  especially

significant in light  of the wording of the  provision pertaining

to  the revocation  of  special parole.    The governing  statute

                                19

decreed  that "[a]  person  whose special  parole  term has  been

revoked may be  required to serve all or part of the remainder of

the new term of imprisonment."   21 U.S.C.A.   841(c) (repealed).

Notwithstanding that in section 841(c), as in section 3583(e)(3),

there  was no  explicit authorization  to commence a  second non-

detentive  term, the Parole Commission, whose interpretation of a

provision  it is charged  to execute is  entitled to considerable

weight, see  Chevron U.S.A.,  Inc. v.  Natural Resources  Defense
                                                                 

Council, Inc., 467  U.S. 837, 844-45 (1984),  explicitly endorsed
             

the reimposition of special parole.  

          Given the obvious similarities in language,  structure,

and substance between  section 841(c) and section  3583(e)(3), we

are fortified in our conclusion that section 3583(e)(3) plausibly

may   bear  a  broader  interpretation  than  it  heretofore  has

received.  Moreover,  it seems  highly likely  that Congress,  in

replacing a repealed provision with a new provision of hauntingly

similar wording, intended that the pre-guidelines  interpretation

would  continue to  apply.    Otherwise,  Congress  would  almost

certainly have altered the language to clarify its intent   as it

did in connection with probation, see supra Part IV(D)(1).
                                           

          For these reasons,  the historical development  of non-

detentive  monitoring, in  all its  permutations,  reinforces our

intuition that  Congress meant  to leave  undisturbed the  widely

accepted  pre-guidelines  practice  of  allowing district  courts

discretion to  order a  period of non-detentive  monitoring as  a

part of the sentence imposed  for violation of supervised release

                                20

conditions.

                                E

          Studying what has transpired  in Congress subsequent to

the passage of  the alteration statute produces  another possible

aid to statutory construction.  The focus here is on a bipartisan

quartet   comprising four senior members  of the Senate Judiciary

Committee     thought to  have been supremely influential  in the

passage  of  the  Sentencing  Reform  Act:    Senators  Thurmond,

Kennedy, Biden,  and Hatch.    These senators  uniformly favor  a

clarifying amendment  that would  remove any  doubt that  section

3583(e)(3) allows reimposition of supervised release.  See, e.g.,
                                                                

137 Cong. Rec. S10021 (daily  ed. July 15, 1991) (text  of S.188,

sponsored by Sens. Kennedy, Thurmond, and Biden);  139 Cong. Rec.

S2090  (daily ed.  February 25,  1993) (S.468, sponsored  by Sen.

Thurmond,  referred to Judiciary Committee); 139 Cong. Rec. S3054

(daily  ed. March  17, 1993)  (Sen. Hatch  added as  cosponsor to

S.468).8

          We understand that  such thirteenth-hour pronouncements

are of uncertain value.  Though courts may  accord some weight to

a subsequent enactment that reflects directly on a  statute under

scrutiny, see, e.g.,  Red Lion Broadcasting Co. v.  FCC, 395 U.S.
                                                       

367,  380-81  (1969),  pronouncements  made  in  the  legislative

history  of  that  subsequent statute  frequently  are  viewed as

                    

     8For what,  if any, relevance  it may  have, the  Sentencing
Commission  also favors  a clarifying  amendment.   See  U.S.S.G.
                                                       
 7B1.3(g)(2)  (Nov. 1992)  (policy statement  reading  statute to
allow reimposition of supervision); id. at  7B1.3, comment. (n.3)
                                       
(advocating passage of clarifying amendment).

                                21

unreliable, see  Consumer Prod.  Safety Comm'n  v. GTE  Sylvania,
                                                                 

Inc., 447 U.S. 102, 118 n.13 (1979), and pronouncements regarding
    

an unpassed  bill may  be even more  problematic, see  Chapman v.
                                                              

United States, 111 S. Ct. 1919, 1927 n.4 (1991).  Accordingly, we
             

reach  our decision today  without placing significant  weight on

post-enactment materials.

          Nonetheless,  courts, including  the Supreme  Court and

this court, have occasionally thought post-enactment declarations

of congressional  intent possessed  some probative  value.   See,
                                                                

e.g., Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572,
                                                  

596  (1980), (relying  in  part on  committee report  relative to

subsequently enacted amendment); United States v. Ven-Fuel, Inc.,
                                                                

758 F.2d 741, 758-59 (1st Cir. 1985) (same).  We believe  that if

post-enactment history,  short of  the actual  passage  of a  new

bill, is ever  to be given  weight, this case  is a nearly  ideal

candidate.  The  sponsors of the proposed amendments  include the

same  senators who sponsored the enacted statute;9 the emendatory

legislation has been characterized by a sponsor as "clarif[ying]"

in nature, rather than as revisory or augmentative, see 139 Cong.
                                                       

Rec. S2151 (daily ed. Feb.  25, 1993) (statement of Sen. Thurmond

on  S.468);  137 Cong.  Rec.  S8892  (daily  ed. June  27,  1991)

(statement   of  Sen.  Thurmond   on  S.188);  and,   in  various

                    

     9Senators Thurmond  and Biden introduced  the omnibus  crime
bill  containing the provisions that became the Sentencing Reform
Act.  Senator  Kennedy submitted a freestanding  sentencing bill,
containing nearly identical provisions, at approximately the same
time.  See Kate Stith &amp; Steve  Y. Koh, The Politics of Sentencing
                                                                 
Reform:   The  Legislative  History  of  the  Federal  Sentencing
                                                                 
Guidelines, 28 Wake Forest L.Rev. 223, 261 (1993).
          

                                22

incarnations, the  clarification has  been adopted  twice by  the

House and four times by the Senate (including twice by the Senate

in the form of a freestanding bill).  See 139 Cong. Rec. at S2150
                                         

(citing   bills).    This  history  strongly  suggests  that  the

amendment  remains  unpassed  only because  the  vagaries  of the

parliamentary process are  what they are.  When,  as now, the two

houses of Congress, in the wake of a series of judicial decisions

going mainly in one direction,  have repeatedly signified that an

amendment is needed  to clarify recently enacted  legislation, it

seems reasonable  to infer that  the courts have failed  to grasp

the enacting Congress's intent.  In such circumstances,  the case

for giving some modest weight to post-enactment history peaks.

                                F

          At   this  point,  we  have  marshalled  the  available

data.10  We have found neither  of the contending readings to  be

obviously correct on  the statute's face, and we  have deterrated

no  direct evidence of congressional intent sufficient to capture

the flag.  In the  end, however, three considerations persuade us

that a broader interpretation of the SRR provision is more likely

                    

     10In the  process, we have  considered   and rejected    the
notion  that  the rule  of  lenity, a  background  principle that
properly comes into play when, at the  end of a thorough inquiry,
the meaning of a criminal  statute remains obscure, see  Chapman,
                                                                
111  S.  Ct.  at  1926,  might  be  of  help  here  in discerning
congressional  intent.    See, e.g.,  Koehler,  923  F.2d  at 135
                                             
(arguing  that  the rule  of lenity  cuts  in favor  of  a narrow
construction  of  the  SRR  provision).    The  problem  lies  in
determining whose ox may be gored.  Depending on the facts of any
particular defendant's situation,  a generous reading of  the SRR
provision can produce  either a harsher or a  more lenient result
than  a  cramped reading  will  produce.    Thus, we  regard  the
interpretive struggle over the SRR provision as lenity-neutral.

                                23

what  Congress   intended.     First,  a   narrow  rendering   is

inharmonious with  the statute as  a whole.  Second,  in choosing

between  two  plausible  readings,  we  hesitate  to  select  the

alternative that in effect imputes to Congress a policy for which

no  compelling rationale  can  be postulated  (and  that, in  the

bargain, blindly treats a greater power as if it did not  include

a  lesser  power).     Third,  given  a  statute   of  protracted

indeterminacy, we are  inclined to favor the  interpretation that

promotes continuity  with traditional  sentencing practice    all

the  more  so  since  the   preexisting  practice  was  based  in

significant  part upon  a  similarly worded  statute.   For these

reasons, and despite our abiding respect for the courts that have

gone the  other way, we hold that the  district judge did not err

in concluding that he possessed the power to impose both a prison

term and a  term of  supervised release  following revocation  of

appellant's original supervision term.

V. APPLYING THE SRR PROVISION

          Having  determined  that   the  court  below  correctly

grasped  the essential  meaning  of the  SRR provision,  we find,

nonetheless,  that it  erred in fashioning  appellant's sentence.

In this case, upon revocation  of the original term of supervised

release, the  SRR provision yields  a maximum sentence  length of

three years.  See 18 U.S.C.   3583(e)(3).  No more than two years
                 

                                24

of that  period can be devoted to incarceration.11   See id.  The
                                                            

key to  these computations  is that the  combined limit  of three

years matches the length of  the original term of supervision and

the  secondary limitation    two  years in  prison    matches the

statutory maximum allowable for revocation of  supervised release

when the underlying offense  is a Class  D felony.   See id.   In
                                                            

light of  these  benchmarks, it  is  apparent that  the  sentence

imposed here  exceeded the  maximum sentence  authorized by  law.

Specifically,  upon   revocation  of   supervised  release,   the

imposition of a  two-year prison term followed by  a fresh three-

year supervision term is unlawful.

          Although O'Neil's sentence must be vacated, at least in

part,  the contours of  the appropriate remedy  remain tenebrous.

On one hand, the government tells us that we should in effect lop

                    

     11We  are  aware  that the  Sentencing  Commission's  policy
statement contemplates that  the new term of imprisonment will be
"less  than"  the  maximum term  of  imprisonment  imposable upon
revocation for each class of offense, U.S.S.G.  7B1.3(g)(2) p.s.,
but  we use  round  numbers  for  simplicity's sake.    Moreover,
although a policy statement ordinarily "is an authoritative guide
to the meaning  of the applicable guideline,"  Williams v. United
                                                                 
States, 112  S. Ct. 1112,  1119 (1992), the policy  statements of
      
Chapter 7 are unaccompanied by  guidelines, and are prefaced by a
special discussion  making manifest  their tentative  nature, see
                                                                 
U.S.S.G. Ch.7,  Pt.A, intro. comment.   Hence, we today  join six
other  circuits in  recognizing Chapter  7  policy statements  as
advisory rather than mandatory.   See United States v.  Thompson,
                                                                
976 F.2d 1380, 1381 (11th  Cir. 1992); United States v. Bermudez,
                                                                
974 F.2d 12,  14 (2d Cir. 1992); United States v. Cohen, 965 F.2d
                                                       
58, 59-61 (6th Cir.  1992); United States v.  Lee, 957 F.2d  770,
                                                 
773 (10th Cir.  1992); United States v. Blackston,  940 F.2d 877,
                                                 
893 (3d Cir.), cert. denied, 112 S. Ct. 611 (1991); United States
                                                                 
v.  Oliver, 931 F.2d  463, 465 (8th  Cir. 1991).   On remand, the
          
lower  court must consider, but  need not necessarily follow, the
Sentencing Commission's recommendations regarding post-revocation
sentencing. 

                                25

off the last two years of the supervision term, thus bringing the

sentence into statutory alignment.  On the other  hand, appellant

urges  us   to  vacate   the  whole   sentence  and  remand   for

resentencing,  thus permitting the district court, armed with our

insights into the  workings of the SRR provision,  to rethink its

options.    While   there  is   precedent  for   each  of   these

alternatives, compare, e.g.,  United States v. Vasquez,  504 F.2d
                                                      

555, 556 (5th Cir. 1974) (per curiam) (holding that the excessive

portion  of a  sentence may  be  trimmed and  the remainder  left

intact) with, e.g., United States v. Berkowitz, 429 F.2d 921, 928
                                              

(1st  Cir.  1970)  (vacating entire  sentence  and  remanding for

resentencing), we believe that the latter option is preferable in

this case.  We explain briefly.

          Although   subject   to   constitutional   constraints,

statutory limitations, and, now,  the guidelines, sentencing  is,

by  and  large,  within  the  province  of  the  district  court.

Sentences  usually  contain  a variety  of  components,  e.g., an
                                                             

incarcerative component,  a monetary  component (say,  a fine  or

cost-of-confinement  order),  and a  non-detentive,  non-monetary

component  (say, supervised  release).   These  components  often

interrelate.   Where  an appellate  court unties  the  bundle and

decides that one component must  be reconfigured, it may often be

better practice  to enlist  the district  court  to retrofit  the

package.  So  it is here.  We think that  the district court, not

this court, is  best equipped to gauge what  the overall sentence

should be.  See generally  United States v. Pimienta-Redondo, 874
                                                            

                                26

F.2d  9, 14  (1st  Cir.) (en  banc)  (discussing resentencing  in

multiple-count case after determination  that the Double Jeopardy

Clause  barred  imposition of  separate  sentence on  one  of two

counts of conviction), cert. denied, 439 U.S. 890 (1989).
                                   

VI   CONCLUSION

          We need go no further.  We hold that the SRR provision,

18 U.S.C.   3583(e)(3), permits a district court, upon revocation

of a term of supervised release, to impose a prison sentence or a

sentence  combining   incarceration  with   a  further   term  of

supervised release, so  long as (1) the  incarcerative portion of

the sentence does not exceed the time limit specified  in the SRR

provision itself, and  (2) the combined length of  the new prison

sentence cum supervision term does not exceed the duration of the
            

original term  of supervised release.   Since the  district court

overstepped these  boundaries, we vacate appellant's sentence and

remand for resentencing.

It is so ordered.
                

                                27
