United States of America v.  Francis Marion Rast, Iii

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4753 
FRANCIS MARION RAST, III,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-00-10)
Argued: May 8, 2002
Decided: June 19, 2002
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Michael Patrick O’Connell, STIRLING & O’CONNELL,
Charleston, South Carolina, for Appellant. Scott Newton Schools,
United States Attorney, Charleston, South Carolina, for Appellee.

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OPINION
MICHAEL, Circuit Judge:
Francis M. Rast pled guilty to the sexual exploitation of a child, a
violation of 18 U.S.C. § 2251, for videotaping his girlfriend perform-
ing a sex act on Rast’s sleeping 12-year-old son and then mailing a
copy of the videotape to his girlfriend’s employer. At sentencing the
district court determined that the Sentencing Guidelines called for a
sentence of imprisonment between 97 and 121 months and noted that
the statute required a mandatory minimum sentence of ten years (120
months). Rast argued that the statute makes no sense as written
because it seems to allow for either a fine or a minimum ten-year term
of imprisonment and also because it contains what appears to be a
drafting error. He asked the district court to disregard the ten-year
mandatory minimum. The court refused, concluding that it could only
sentence Rast within the range of 120 to 121 months. It then imposed
a sentence of 120 months. Rast appeals his sentence, arguing that the
district court erred by concluding that it lacked the discretion to sen-
tence him to less than 120 months. Finding no error, we affirm the
sentence.
As the district court recognized, its discretion at sentencing was
limited not only by the statute, § 2251, but also by the Guidelines. We
first consider the effect of the statute on the district court’s sentencing
options, and we then consider any additional limitations imposed by
the applicable Guidelines. The penalty provision of § 2251 says that
"[a]ny individual who violates . . . this section [relating to the sexual
exploitation of children] shall be fined under this title or imprisoned
not less than 10 years nor more than 20 years, and both." 18 U.S.C.
§ 2251(d) (emphasis added). The statute is confusing in two respects.
The first and most glaring problem is the phrase "and both." Whatever
sentencing options Congress may have intended to provide, it made
no sense to add "and both" at the end of this part of § 2251(d). If Con-
gress had intended to permit a district court to impose just a fine, just
imprisonment, or both a fine and imprisonment, then it would have
said "fined . . . or imprisoned . . . or both." If, on the other hand, Con-
gress had intended to require both a fine and imprisonment, it would
have simply said "fined . . . and imprisoned." It is hard to believe that
Congress intentionally wrote "fined . . . or imprisoned" and then
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added "and both" at the end to cancel out the "or." Although the gov-
ernment acknowledges the confusion, it urges us to read "and both"
as requiring on its face both a fine and imprisonment. The confusing
statutory language allows us to look beyond the text for clues about
congressional intent. When, as in this case, "the language of the stat-
ute is unclear, [we] may look to the legislative history for guidance
in interpreting the statute." United States v. Childress, 104 F.3d 47,
53 (4th Cir. 1996). Section 2251(d) is consistently described in the
legislative history as providing that a violator "shall be fined . . . or
imprisoned . . . or both." H.R. Conf. Rep. No. 104-863, at 32 (1996).
See also Sen. Rep. No. 104-358, at 4 (1996). The history never varies
from using "or both," nor does it ever use the conjunction "and" to
link "shall be fined" with "imprisoned." The phrase "and both" simply
makes no sense in the context of this statute, and its presence must
be the result of a drafting error. See United States Nat’l Bank of Ore-
gon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993). As
a result of this error, the phrase "and both" should be read as "or
both," as Congress intended.
When the drafting error is corrected, the statute provides for an
offender to be "fined . . . or imprisoned not less than 10 years nor
more than 20 years, [or] both." But even with this correction, the lan-
guage is still odd. The plain meaning is that a district court has the
discretion either to impose a fine or to impose imprisonment. How-
ever, if a district court chooses imprisonment, it must impose a mini-
mum of ten years. It is not hard to figure out what the statute means
— there is no ambiguity in the words "fined . . . or imprisoned not
less than 10 years" — it is just hard to imagine why Congress would
require a minimum ten-year term if imprisonment is ordered, but in
the same breath permit a district court to forgo the imprisonment
option altogether and merely impose a fine. This is the second puz-
zling aspect of the statute.
Rast argues that given the statute’s confusing language, we should
disregard its ten-year mandatory minimum and remand for resentenc-
ing within the Guideline range, which here is 97-121 months. See
infra at 6. He points to other criminal statutes in Chapter 110 of Title
18, relating to sexual exploitation and other abuses of children, that
do not contain a ten-year mandatory minimum like § 2251(d). These
similar provisions, Rast argues, outlaw conduct at least as reprehensi-
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ble as that prohibited by § 2251, yet they do not contain mandatory
minimums. According to Rast, this demonstrates that Congress must
not have intended for § 2251 to contain a mandatory minimum sen-
tence of any sort. We disagree. While the statute does have two con-
fusing aspects, the ten-year mandatory minimum provision is not one
of them. The statute plainly provides for a term of imprisonment of
"not less than 10 years nor more than 20 years." Regardless of
whether Congress intended for the ten-year mandatory minimum to
apply to all cases or simply as an alternative to a fine, § 2251(d)
clearly establishes a ten-year mandatory minimum if the district court
imposes any imprisonment. This part of the statute is unambiguous,
and we cannot ignore its plain meaning.
This brings us back to the peculiar structure of § 2251(d), which
allows a fine in lieu of imprisonment, but requires a term of "not less
than 10 years" if imprisonment is imposed at all. We have dealt previ-
ously with a statute that was worded the same way. In United States
v. Jones, 902 F.2d 1152 (4th Cir. 1990), we considered 21 U.S.C.
§ 844(a), which outlaws and provides penalties for simple possession
of controlled substances. At the time Jones was decided, § 844(a) pro-
vided that a person convicted for simple possession of crack cocaine
"‘shall be fined under Title 18, or imprisoned not less than 5 years
and not more than 20 years, or both.’" Jones, 902 F.2d at 1153 (quot-
ing 21 U.S.C. § 844(a)). This language is identical in all relevant
respects to Congress’s intended language in § 2251(d). Faced with
what § 844(a) said, the district court in Jones concluded that while
"the language of the statute [was] unambiguous," the use of the dis-
junctive "or" to introduce the minimum five-year imprisonment lan-
guage must have been a drafting error by Congress. Id. at 1153. The
district court thus decided that it could not impose a fine instead of
imprisonment, and it sentenced the defendant to the minimum prison
term of five years. Id. We agreed with the district court that the statu-
tory language was plain, but we explained that "[i]n the absence of
clearly expressed legislative intention to the contrary, the plain lan-
guage of the statute is to be recognized as conclusive." Id. Because
we could not find anything in the legislative record to indicate that
Congress meant anything other than what it had plainly said, we
reversed the sentence and remanded for the district court to consider
whether to impose only a fine or to impose a prison term of at least
five but no more than twenty years. We concluded by saying that
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"[t]his matter is one to be addressed, if at all, by Congress." Id. at
1154.*
Jones requires us to accept the plain language of the statute before
us today, § 2251(d), absent "clearly expressed legislative intention to
the contrary." Id. at 1153. As noted above, the legislative history
never describes § 2251(d) as requiring both a fine and imprisonment;
rather, the provision is always described as permitting alternatives for
punishment: a fine or imprisonment, or both. A few statements from
Senators who objected to the proposed "mandatory minimum provi-
sions" make up the only legislative history that might arguably indi-
cate that § 2251(d) was understood to impose a fine and a mandatory
minimum ten-year term of imprisonment. See, e.g., Sen. Rep. No.
104-358, at 34 (1996) (minority views of Sen. Simon, Member, Sen.
Comm. on the Judiciary). Even this bit of legislative history is ambig-
uous because it is not clear what the opponents were objecting to
when they criticized the bill for imposing a mandatory minimum.
Their opposition might have stemmed from a belief that the bill
required both a fine and a minimum ten-year prison term for any vio-
lation of § 2251. On the other hand, the objection could have been
made with the understanding that if the sentencing judge chose the
alternative penalty of imprisonment, the bill required a term of at least
ten years. If the opponents objected with this (correct) understanding
of the bill in mind, they were still objecting to a mandatory minimum
of sorts. We therefore conclude that the opposition of a few Senators
to § 2251(d)’s "mandatory minimum provision" does little to clarify
the meaning of the statute and cannot supply the sort of clearly
expressed legislative intention necessary to displace the statute’s plain
meaning. Section 2251(d) means just what Congress intended it to
say: a district court may impose either a fine or imprisonment of not
less than ten nor more than twenty years, or both.
If our Jones case was all we had to go by, we would remand this
case for resentencing in light of the district court’s discretion under
*Shortly after Jones was decided, Congress amended 21 U.S.C.
§ 844(a) to provide that an offender "shall be imprisoned not less than
5 years and not more than 20 years, and fined a minimum of $1,000."
Crime Control Act of 1990, Pub. L. No. 101-647, § 1201, 104 Stat. 4789,
4829 (emphasis added).
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§ 2251(d) to impose a fine in lieu of ten to twenty years of imprison-
ment. Congress, however, has provided for the promulgation of the
Sentencing Guidelines, and they must also be taken into account here.
Congress requires the Sentencing Commission to "prescribe guideline
ranges that specify an appropriate sentence for each class of convicted
persons." U.S. Sentencing Guidelines Manual ch. 1, pt. A, at 1 (2001).
Not only did Congress direct the Commission to come up with sen-
tencing ranges, it also instructed the Commission to include direction
in the Guidelines about the type of sentence to be imposed, that is,
"whether to impose a sentence to probation, a fine, or a term of
imprisonment." 28 U.S.C. § 994(a)(1)(A). The Guidelines allow pun-
ishment in the form of a fine and no imprisonment only when the
offense level and criminal history category intersect in Zone A of the
Sentencing Table (all of the sentencing ranges in Zone A are 0-6
months). See U.S.S.G. § 5C1.1(b) & cmt. n.2 ("In some cases [under
Zone A], a fine appropriately may be imposed as the sole sanction.").
When the minimum sentence under the sentencing range is greater
than zero, some amount of confinement must be imposed. See id.
§§ 5C1.1(c), (d). In such a case, the Commission has implicitly deter-
mined that a fine alone is not an appropriate sentence for the offense
in question. See United States v. Ortez, 902 F.2d 61, 65-66 (D.C. Cir.
1990) (explaining that by creating the Sentencing Table, the Commis-
sion has implicitly determined not only the appropriate sentencing
range but also the type of sentence — fine, probation, or imprison-
ment — that may be imposed), overruled on other grounds as recog-
nized in In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998); United
States v. Belgard, 894 F.2d 1092, 1099-1100 (9th Cir. 1990) (reject-
ing defendant’s argument that when a statute authorizes either proba-
tion or imprisonment, the Guidelines must allow a sentencing court
to impose either type of punishment).
Here, the district court determined that under the Guidelines Rast
had an offense level of 30 and a criminal history category of I.
Accordingly, under the Sentencing Table, Rast’s sentencing range
was between 97 and 121 months. U.S.S.G. ch. 5, pt. A. (Rast does not
contest the calculation of this range.) While § 2251(d) appears to
allow for either a fine or a prison term of between ten and twenty
years, the Guidelines limit the available sentencing options in this
case to prison terms between 97 and 121 months. Because Rast was
not in Zone A of the Sentencing Table (0-6 months), the district court
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lacked the discretion to impose only a fine. In addition, under
§ 2251(d), if the court imposes any imprisonment for this offense, it
must impose a prison term of at least ten years (120 months). Under
the Guidelines, when the statutory minimum sentence is greater than
the minimum sentence of the Guidelines range, the district court must
impose a sentence not less than the statutory minimum. U.S.S.G.
§ 5G1.1(c). The district court correctly determined that when consid-
ering both the Guidelines and the statute, the only sentencing option
in this case was imprisonment for 120-121 months. Because the
Guidelines foreclose the option of imposing solely a fine in this case,
the district court properly determined that it lacked the discretion to
consider the statutorily authorized fine in lieu of imprisonment. Like-
wise, because the statute requires that any term of imprisonment
imposed be at least ten years, the district court properly determined
that it lacked the discretion to sentence Rast to a term of imprison-
ment of less than 120 months. Thus, the district court did not err when
it sentenced Rast to 120 months in prison. The sentence is
AFFIRMED.
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