United States v. 2006-09-08 | 05-10180 | USA VMUELLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-10180
Plaintiff-Appellee, D.C. No.
v.  CR-04-00044-RSL
STEPHEN REMY MUELLER, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Guam
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
November 22, 2005—Honolulu, Hawaii
Filed September 8, 2006
Before: Myron H. Bright,* M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
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COUNSEL
Howard Trapp (argued), Howard Trapp Incorporated,
Hagåtna, Guam, for the defendant-appellant.
Leonardo M. Rapadas, United States Attorney, Districts of
Guam and the NMI; Karen V. Johnson (argued), Assistant
United States Attorney, Hagåtna, Guam, for the plaintiff-
appellee.
OPINION
CLIFTON, Circuit Judge:
The question presented in this case is whether the district
court is authorized to order probation under the probation stat-
ute, 18 U.S.C. § 3561, for a defendant convicted of receiving
child pornography in violation of 18 U.S.C. § 2252, which
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provides for a mandatory minimum sentence of incarceration.
Section 2252 establishes a mandatory minimum sentence of
five years of incarceration but does not explicitly preclude
probation. Probation is precluded for this conviction under the
United States Sentencing Commission, Guidelines Manual
(“U.S.S.G.” or “Sentencing Guidelines”), and Mueller con-
cedes that probation was not available as an alternative at the
time of sentencing, when the district court was required to
adhere to the Sentencing Guidelines. In the wake of United
States v. Booker, 543 U.S. 220 (2005), however, the Sentenc-
ing Guidelines are no longer mandatory, and Defendant
argues that nothing precludes the district court from imposing
probation instead of the minimum mandatory sentence. We
disagree. Because such an accidental byproduct of Booker
would contradict clearly manifested congressional intent, we
hold that probation is not available as an alternative and
affirm the sentence imposed by the district court.
I. Background
Defendant Stephen Mueller pleaded guilty to the charge of
receiving child pornography in violation of 18 U.S.C.
§ 2252(a).1 That offense carries a mandatory minimum sen-
1Section 2252(a) provides in relevant part:
Any person who . . .
. . .
knowingly receives, or distributes, any visual depiction that has
been mailed, or has been shipped or transported in interstate or
foreign commerce, or which contains materials which have been
mailed or so shipped or transported, by any means including by
computer, or knowingly reproduces any visual depiction for dis-
tribution in interstate or foreign commerce or through the mails,
if—
. . .
the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct
. . .
shall be punished in accordance with subsection (b) of this sec-
tion.
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tence of five years incarceration, as set forth in 18 U.S.C.
§ 2252(b).2
Before the district court, Mueller argued that the court had
discretion, under 18 U.S.C. § 3561(a), to impose a sentence of
probation notwithstanding the mandatory minimum, because
§ 2252 does not contain language expressly precluding that
sentencing option. The district court interpreted the manda-
tory minimum language to preclude probation and to require
incarceration for a term of at least five years, and sentenced
Mueller to a term of five years, followed by three years of
supervised release. Mueller timely appealed, asking us to
reverse the sentence in order to give the court an opportunity
to exercise its discretion to impose a sentence of probation
instead.
II. Discussion
A. The probation statute
Despite the five-year mandatory minimum sentence
required by § 2252(b), Mueller argues that the court may
instead impose a sentence of probation under § 3561(a),
which provides that:
A defendant who has been found guilty of an offense
may be sentenced to a term of probation unless—
(1) the offense is a Class A or Class B felony and
the defendant is an individual;
(2) the offense is an offense for which probation has
been expressly precluded; or
2Section 2252(b) provides in relevant part: “Whoever violates . . . sub-
section (a) . . . shall be fined under this title and imprisoned not less than
5 years and not more than 20 years . . .”
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(3) the defendant is sentenced at the same time to a
term of imprisonment for the same or a different
offense that is not a petty offense.
The way the probation statute is written does suggest, as
Mueller argues, that in all other circumstances not listed, pro-
bation is available. The government acknowledges that the
first and third limitations in the probation statute do not apply
to Mueller or his offense: the offense is not a Class A or Class
B felony, and Mueller was not necessarily going to be sen-
tenced at the same time to a term of imprisonment. The harder
question here is whether Mueller was convicted of “an
offense for which probation has been expressly precluded.”
We conclude that the answer to that question is yes, and thus
that Mueller is not eligible for a sentence of probation as an
alternative to the five-year minimum term of imprisonment.
B. Preclusion of probation
[1] Mueller’s position finds some support in this court’s
interpretation of the predecessor to the current probation stat-
ute. We held that under 18 U.S.C. § 3651, the earlier proba-
tion statute (repealed 1987), a defendant convicted of
violating a statute which provided for a mandatory minimum
sentence could still be placed on probation, with his sentence
suspended, or could be made eligible for immediate parole.3
United States v. Wilson, 506 F.2d 521, 522 (9th Cir. 1974).
Similarly, in Rodriguez v. United States, 480 U.S. 522, 526
(1987), the Supreme Court held that the addition of language
3Section 3651 provided in relevant part:
Upon entering a judgment of conviction of any offense not pun-
ishable by death or life imprisonment any court having jurisdic-
tion to try offenses against the United States when satisfied that
the ends of justice and the best interest of the public as well as
the defendant will be served thereby, may suspend the imposition
or execution of sentence and place the defendant on probation for
such period and upon such terms and conditions as the court
deems best.
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creating a “mandatory minimum” prison sentence did not
repeal by implication the court’s discretionary authority to
suspend a sentence under § 3651, in the absence of more spe-
cific language precluding suspension of sentence or probation.
[2] The current statute, § 3561(a), differs from its predeces-
sor in that it does not give the sentencing court broad author-
ity to “suspend the imposition or execution of sentence.” 18
U.S.C. § 3651 (emphasis added). Under the new statutory
scheme, instead of representing a suspension of the execution
of a sentence, probation constitutes a type of sentence in and
of itself. See 18 U.S.C. § 3561(a) (“A defendant who has been
found guilty of an offense may be sentenced to a term of pro-
bation”.) (emphasis added); United States v. Granderson, 511
U.S. 39, 43 n.3 (1994) (“The Sentencing Reform Act of 1984,
for the first time, classified probation as a sentence.”); S. Rep.
98-225, 1984 U.S.C.C.A.N. 3182 3271 (Aug. 4, 1983)
(“Proposed 18 U.S.C. 3561, unlike current law, states that
probation is a type of sentence rather than a suspension of the
imposition or execution of a sentence”). This revision is sig-
nificant because the status of probation as a suspension of
sentence, rather than an independent sentence, was crucial to
the Supreme Court’s original holding that mandatory mini-
mums did not bar probation under the old regime. See Rodri-
guez v. United States, 480 U.S. 522, 524 (1987) (finding no
irreconcilable conflict between a minimum sentence and the
“suspension authority” of section 3651).
The shift in probation’s character from representing a sus-
pension of sentence to being the actual sentence is also signif-
icant because the revised probation sentencing authority
necessarily interrelates with the regime of the Sentencing
Guidelines as a whole, to which the probation statute belongs.
The current probation statute was enacted (and the former
provision repealed) as part of a broad reform of federal sen-
tencing that included establishment of the Sentencing Guide-
lines and the abolition of parole. See S. Rep. 98-225, 1984
U.S.C.C.A.N. 3182, 3272 n. 316 (Aug. 4, 1983) (explaining
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that, with regard to offenses for which the imposition of a sen-
tence of probation is specifically precluded under subsection
(a)(2), “[t]he Committee believes that for most offenses the
Sentencing Guidelines will be better able to specify the cir-
cumstances under which an offender should be sentenced to
a term of imprisonment and those under which he should be
sentenced to a term of probation”). Thus, although like the
prior version the current statute purports to create “no pre-
sumption for or against probation,” S. Rep. No. 98-225, 1984
U.S.C.C.A.N. 3182, 3273, its reference to probation preclu-
sion incorporates congressional intent regarding specific
offenses, expressed elsewhere in the larger sentencing frame-
work. Congress has precluded probation as an alternative sen-
tence for this offense.
[3] The current probation statute has never been the sole
source of authority as to whether probation may be imposed.
See, e.g., United States v. Green, 105 F.3d 1321, 1324 (9th
Cir. 1997) (looking to both the offense statute itself and the
Sentencing Guidelines to determine whether a sentence of
probation was available, even where the offense statute con-
tained express language precluding probation); United States
v. Mondello, 927 F.2d 1463, 1468 (9th Cir. 1991) (rejecting
the argument that by specifying only “certain serious crimes
for which probation would be unavailable,” Congress meant
to permit probation for most of the unenumerated crimes, cit-
ing United States v. Belgard, 894 F.2d 1092, 1099 (9th Cir.
1990)); see also United States v. Martinez-Cortez, 924 F.2d
921, 923 (9th Cir. 1991) (“The legislative history of the Sen-
tencing Reform Act . . . indicates that Congress did not intend
18 U.S.C. § 3561 to require that probation be available to all
categories of defendants not stripped of that remedy by the
section.”) Class A and Class B felony offenses are specifically
precluded under § 3561(a)(1), but they are not the only
offenses for which probation is precluded.
[4] Under the Sentencing Guidelines, probation is also pre-
cluded for offenses with mandatory minimums such as the
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one at issue here. See U.S.S.G. § 5B1.1. The Sentencing
Guidelines provide that, subject to the restrictions in § 3561,
a sentence of probation is authorized if the applicable guide-
line range is in Zone A or Zone B of the Sentencing Table.
U.S.S.G. § 5B1.1(a). Zone A deals with minimum terms of
zero to six months, and Zone B deals with certain sentences
having a term of up to twelve months. Accordingly, probation
is precluded for offenses not within Zones A or B, subject to
the restrictions of § 5B1.1.
Congress has also precluded probation in the language of
certain criminal offense statutes themselves. See, e.g., 18
U.S.C. § 844(h) (imposing a mandatory minimum and adding
“[n]otwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person”
so convicted); 18 U.S.C. § 924(c)(1) (same); 21 U.S.C.
§ 841(b)(1)(A) (same).
Mueller points out that not every offense statute that carries
a mandatory minimum contains accompanying language pre-
cluding probation. See 8 U.S.C. §1324(2)(B); 18 U.S.C.
§ 2252(b). This distinction does not, however, indicate that a
probation alternative remains available for those offenses that
do not contain such express preclusion language.
[5] The legislative history of the offense statutes that pre-
clude probation in the statute itself—i.e., § 844(h) and
§ 924(c)(1)—reveals that all of the provisions containing lan-
guage expressly prohibiting probation were enacted before the
Sentencing Reform Act created the Sentencing Guidelines,
which became effective November 1, 1987. See Organized
Crime Control Act of 1970, Pub. L. No. 91-452, § 1102, 84
Stat. 922, 957 (1970) (enacting 18 U.S.C. § 844(h), modeled
after Gun Control Act of 1968, Pub. L. 90-618, § 102, 82 Stat.
1213 (1968) which enacted 18 U.S.C. 924(c)(1)(A)-(D)); see
also Narcotics Penalties and Enforcement Act of 1986, Pub.
L. 99-570, § 1002, 100 Stat. 3207 (1986). By compelling con-
trast, the mandatory minimum sentence provision of § 2252
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was enacted at a time when the Sentencing Guidelines were
in place and were binding on district courts, as was
§1324(2)(B)(ii). See Prosecutorial Remedies and Other Tools
to end the Exploitation of Children Today Act of 2003
(“PROTECT Act”), Pub. L. No. 108-21, § 103, 117 Stat. 650,
653 (2003) (increasing penalties and creating mandatory
minimum under § 2252); Omnibus Consolidated Appropria-
tions Act, 1997, Pub. L. 104-208, § 203, 110 Stat. 3009,
3009-566 (1996) (adding mandatory minimum penalty for
violations of 8 U.S.C. § 1324). In light of the chronological
legislative context (contrasting pre- and post-Sentencing
Guidelines legislation), all that can be read into mandatory
minimum sentencing provisions that are unaccompanied by
extra express language precluding probation is that such extra
language was not needed; probation was precluded under the
Sentencing Guidelines structure. See Green, 105 F.3d at 1324
(9th Cir. 1997) (“Two provisions in the Guidelines themselves
clarify that a sentence of probation is impermissible for the
crime committed”).
Mueller posits that since the Sentencing Guidelines are no
longer mandatory and thus no longer restrict the full scope of
§ 3561, district judges are now free to decide if probation is
appropriate for convictions under statutes that contain manda-
tory minimums but no express language precluding probation.
In doing so, Mueller relies heavily on the probation statute
itself and what its drafters might have contemplated in the
absence of the Sentencing Guidelines. His reliance is mis-
placed, however, because he ignores the sentencing provision
of the offense statute and what its drafters quite clearly con-
templated in the presence of the Sentencing Guidelines. There
is no question that Congress was aware of and relied upon the
Sentencing Guidelines’ circumscription of probation authority
when enacting the mandatory minimum sentence at issue in
this case.
To begin with, Congress is presumed to have acted with
awareness of the relevant legal context when it passes legisla-
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tion. See Cannon v. University of Chicago, 441 U.S. 677, 696-
97 (1979). In the context of this offense statute, moreover,
Congress articulated its specific intent to remove discretion
from sentencing judges to depart downward from the mini-
mum sentence. The minimum sentencing provision was first
added in 2003 as part of the PROTECT Act, which increased
penalties for crimes involving the child pornography industry.
See PROTECT Act, Pub. L. No. 108-21, § 103, 117 Stat. 650,
653; S. Rep. 108-2, 10 (2003) (Senate Report regarding the
PROTECT Act). The Act not only created a mandatory mini-
mum for this offense, but further limited discretion to depart
downward from the Guidelines. PROTECT Act, Pub. L. No.
108-21, § 401, 117 Stat. 650, 667-8 (amending 18 U.S.C.
§ 3553). While the wisdom of such a step away from judicial
discretion (under a binding or advisory guidelines system)
may be debatable, the legislative intent to do so with regard
to this offense is not. See 149 Cong. Rec. S5113, S5121-22
(Apr. 10, 2003) (remarks of Sen. Hatch on the PROTECT
Act) (“the game is over for judges . . . you are not going to
go on doing what is happening in our society today on chil-
dren’s crimes, no matter how softhearted you are. That is
what we are trying to do here.”).4 Such a deliberate legislative
action should only be set aside by this court if required under
the law. Booker does not create such a condition.
C. Booker does not require disregard of congressional
intent here
As this appeal originates out of the practical impact of the
Booker decision, it is worth emphasizing that the constitu-
tional issues in that case did not involve mandatory minimum
sentences. See United States v. Cardenas, 405 F.3d 1046,
1048 (9th Cir. 2005) (“Booker does not bear on mandatory
4It is important to note that although Booker directly struck down the
PROTECT Act’s addition of a de novo standard of review for departures
from the Sentencing Guidelines range, see Booker, 543 U.S. at 261, that
provision is not the aspect of the PROTECT Act under review here.
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minimums”). As is familiar by now, in Booker the Supreme
Court applied its decisions in Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296
(2004), to the Sentencing Guidelines and held that the Sixth
Amendment requires juries, not judges, to find facts relevant
to sentencing beyond a reasonable doubt. Booker, 543 U.S. at
244. Having found a constitutional defect in the Guidelines as
enacted, which allowed for sentence enhancements based on
facts found by a preponderance of evidence by a judge, the
Court evaluated potential remedies and concluded that the one
most consistent with congressional intent would be to excise
the provision that made the Guidelines mandatory, 18
U.S.C.A. § 3553(b)(1) (Supp. 2004). Id. at 244-46.
Although we currently understand and interpret the Sen-
tencing Guidelines as advisory rather than mandatory, that is
not the way Congress understood the Sentencing Guidelines
at the time it enacted a mandatory minimum sentence—which
at that time, precluded probation—for violations of § 2252.
Of course, even under the post-Booker sentencing regime, dis-
trict courts must still consult the Sentencing Guidelines and
take them into account, see 18 U.S.C. § 3553(a)(4); Booker,
543 U.S. at 246, so it is not as if the Sentencing Guideline
provisions that add explicit limitations on probation have dis-
appeared. Nor are those provisions constitutionally problem-
atic. See Booker, 543 U.S. at 258 (“Most of the statute is
perfectly valid.”).
The sentencing regime we have now, after Booker, is a
remedy created by the Supreme Court with the very purpose
of giving effect to congressional intent embodied in the inter-
related provisions of the complex sentencing structure. See id.
at 248. Considering the potential remedial approaches, the
Court explained, “we must decide whether we would deviate
less radically from Congress’ intended system (1) by superim-
posing the constitutional requirement announced today or (2)
through elimination of some provisions of the statute.” Id. at
247. The Court’s task in Booker is analogous to our task in
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this case. Here, our choice in these terms is whether to recog-
nize an “express preclusion of probation” where such a pre-
clusion is already implied and is expressly precluded by the
now advisory Sentencing Guidelines, or to effectively elimi-
nate the provision which provides for a mandatory minimum
of five years of incarceration. Whereas the Booker Court gave
effect to congressional intent by choosing the latter of the two
approaches, we honor congressional intent in this context by
choosing the former.
III. Conclusion
[6] Where we are faced with a clear congressional mandate,
as we are here, we can see no justification for using the
Booker remedy (rendered according to a constitutional hold-
ing unrelated to the issue before us) to subordinate a legiti-
mate legislative action to the law of unintended consequences.
The district court was correct in interpreting § 2252(b) to
require a mandatory minimum of five years incarceration, not
to be substituted at the judge’s discretion for an individually-
tailored sentence that combines probation and a term of incar-
ceration of less than five years. Accordingly, the judgment is
affirmed.
AFFIRMED.
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