
USCA1 Opinion

	




                            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 &  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          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          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, & 28 U.S.C.              991-98 (1988  & 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          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                                          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          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                                          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 & 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                                          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                                          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                                          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 & 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                                          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 & 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                                          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          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          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.          It is so ordered.          ________________                                          27
