United States v. James Little

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 2, 2022 Decided August 18, 2023

No. 22-3018

UNITED STATES OF AMERICA,

APPELLEE

v.

JAMES LITTLE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cr-00315-1)

Joshua B. Carpenter, Federal Public Defender for the

Western District of North Carolina, argued the cause and filed

the briefs for appellant.

James I. Pearce, Appellate Counsel, U.S. Department of

Justice, argued the cause for appellee. With him on the brief

were Matthew Graves, U.S. Attorney for the District of

Columbia, Kenneth A. Polite, Assistant Attorney General, Lisa

H. Miller, Deputy Assistant Attorney General, and John Crabb

Jr., Chief, Capitol Siege Section.

Before: WILKINS and WALKER, Circuit Judges, and

ROGERS, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge WALKER.

Dissenting opinion by Circuit Judge WILKINS.

WALKER, Circuit Judge: James Little committed a petty

offense. The district court sentenced him to prison, followed

by probation. The only question on appeal is whether that

sentence is authorized by statute.

It is not. Probation and imprisonment are alternative

sentences that cannot generally be combined. So the district

court could not impose both for Little’s petty offense.

I. Background

A. James Little’s Offense and Sentence

On January 6, 2021, James Little rioted inside the United

States Capitol. In his own words, he “took over the Capital

[sic]” because “[s]tealing elections is treason.” JA 32. He later

pleaded guilty to a petty offense: Parading, Demonstrating, or

Picketing in a Capitol Building. 40 U.S.C. § 5104(e)(2)(G).

That crime carries a sentence of six months in prison, a

fine, or both.1 Id. § 5109(b). As an alternative sentence, a court

may give a defendant up to five years of probation, with or

without a fine. 18 U.S.C. §§ 3551(b), 3561. But here, the

district court chose to mix and match those options, sentencing

1

Because that offense carries a prison term of six months, it is a Class

B misdemeanor. 18 U.S.C. § 3559(a)(7). That makes it a “petty

offense.” 18 U.S.C. § 19 (defining “petty offense” to include Class

B misdemeanors).

3

Little to sixty days in prison followed by three years of

probation.

To support Little’s sentence, the district court relied on

§ 3561(a)(3), which describes some of the circumstances in

which probation is available. Before introducing that

provision, we first discuss the federal sentencing scheme and

probation’s role within it.

B. Authorized Sentences

The Sentencing Reform Act of 1984 “comprehensively”

outlines the federal sentencing scheme. Cunningham v.

California, 549 U.S. 270, 286 (2007). The Act’s opening

section lists a menu of “authorized sentences” under the

Federal Criminal Code:

An individual found guilty of an offense shall

be sentenced . . . to —

(1) a term of probation as authorized by

subchapter B;

(2) a fine as authorized by subchapter C; or

(3) a term of imprisonment as authorized

by subchapter D.

A sentence to pay a fine may be imposed in

addition to any other sentence.

Pub L. No. 98-473 § 212(a)(2), 98 Stat. 1873, 1988 (codified

at 18 U.S.C. § 3551(b)).

That menu makes five sentences available. The first is

probation — which lets a court sentence a defendant to a term

of court supervision, with an option for short periods of

intermittent confinement. 18 U.S.C. § 3563(b)(10). The

4

second is a fine. The third is imprisonment. The fourth is

probation plus a fine. And the fifth is imprisonment plus a fine.

Notice that imprisonment plus probation is not an

available option. That’s because the list of sentences is

disjunctive (“probation . . . fine . . . or . . . imprisonment”),

indicating that the options on the menu are alternatives that

cannot be combined. Id. § 3551(b) (emphasis added).2

The provision following the list confirms that reading.

Notwithstanding the disjunctive menu, “a fine may be imposed

in addition to any other sentence.” Id. That exception allows

a sentencing judge to combine a fine with probation or

imprisonment. Congress’s decision to make an exception for

fines but not probation strongly suggests that probation cannot

be combined with imprisonment. Nasdaq Stock Market LLC v.

SEC, 38 F.4th 1126, 1137 (D.C. Cir. 2022) (“mention of one

thing” implies the “preclusion” of others).

In other words, the Code’s text and structure show that

probation and imprisonment may not be imposed as a single

sentence. They are separate options on the menu.3

2

The Code’s chapter on sentencing mirrors the structure of the menu,

dividing probation, fines, and imprisonment into three separate

subchapters. 18 U.S.C. ch. 227. Subchapter A houses general

provisions. Subchapter B discusses probation. Subchapter C covers

fines. And Subchapter D lays out the rules for imprisonment.

3

To be sure, Congress can make exceptions to that general rule.

Indeed, the Code’s chapter on sentencing applies “[e]xcept as

otherwise specifically provided.” 18 U.S.C. § 3551(a). So when we

say that a court may not impose probation and imprisonment for a

single offense, we mean that § 3561(a)(3) does not allow it — not

that there are no exceptions to that general rule elsewhere in the

5

C. Probation and Petty Offenses

To ensure that probation remains a standalone

sentence — not a punishment in addition to

imprisonment — the Sentencing Reform Act of 1984 put a

further restriction on its use. Under the Act, a defendant could

not get probation if he was “sentenced at the same time to a

term of imprisonment for the same or a different offense.” Pub.

L. 98-473, § 212(a)(2), 98 Stat. 1873, 1992 (emphasis added).

Put differently, in 1984, sentencing judges could not

impose probation and imprisonment for a single offense — the

general rule discussed above. Nor could they impose probation

for one offense and imprisonment for a different offense

sentenced at the same time. Id. 4

Code. But there is no exception for Little’s offense. See 40 U.S.C.

§ 5104(e)(2)(G).

Pushing back, the Government says 18 U.S.C. § 3561(a)(3) is

the kind of specific exception contemplated by § 3551(a), allowing a

sentencing court to impose probation and imprisonment for a single

petty offense. We disagree. First, § 3551(a) contemplates that

exceptions will generally be found outside the Code’s chapter on

sentencing. See id. § 3551(a) (noting that the “provisions of this

chapter” apply “except as otherwise specifically provided”

(emphasis added)). Second, as we explain, § 3561(a) is not an

exception to the general rule. See infra Part II.

4

Though the Sentencing Reform Act made probation a sentencing

option distinct from imprisonment — and barred giving a defendant

probation after imprisonment — it put in place a separate mechanism

for monitoring offenders after they are released from prison:

supervised release. 18 U.S.C. § 3583; see United States v.

Granderson, 511 U.S. 39, 43 n.3 (1994) (“before 1984, probation

[was] an alternative to a sentence,” but the Sentencing Reform Act,

“for the first time, classified probation as a sentence”). We discuss

supervised release in greater detail in Section II.B.

6

But that regime proved too restrictive. So in 1994,

Congress amended the statute. It now reads:

A defendant who has been found guilty of an

offense may be sentenced to a term of probation

unless . . . 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.

Pub. L. No. 103-322, § 280004, 108 Stat. 1796, 2096 (codified

at 18 U.S.C. § 3561(a)(3)) (emphasis added).

This case turns on those six new words. Does the italicized

phrase modify only “a different offense”? If so, a court may

not impose both imprisonment and probation for a single

offense (though it can impose imprisonment for one petty

offense and probation for a different offense). Or does the

italicized phrase modify “the same or a different offense”? In

that case, a sentencing court may impose both probation and

imprisonment for a single petty offense.

The district court adopted the latter reading and sentenced

Little to sixty days in prison plus three years of probation for a

single petty offense.

II. A Defendant May Not Get Probation and

Imprisonment for a Single Petty Offense

We disagree with the district court’s reading of

§ 3561(a)(3). See United States v. Cordova, 806 F.3d 1085,

1098 (D.C. Cir. 2015) (we review the district court’s

interpretation of a statute de novo).

7

A. Text

Like many statutory lists, § 3561(a)(3) poses a problem:

Does a qualifier at the end of the list modify just the list’s final

item, or all the items that come before it?

The Supreme Court’s “typical[ ]” approach to that problem

is to apply “the rule of the last antecedent.” Lockhart v. United

States, 577 U.S. 347, 351-52 (2016). That rule commands “that

a limiting clause or phrase should ordinarily be read as

modifying only the noun or phrase that it immediately

follows.” Id. at 351 (cleaned up). Thus, when Chief Justice

Marshall interpreted a statute defining “piracy” as committing

“upon the high seas . . . murder or robbery, or any other

offense . . . punishable with death,” he held that all robberies at

sea were piracies — not just robberies punishable by death.

United States v. Palmer, 16 U.S. 610, 626 (1818) (cleaned up).

Applied here, the last-antecedent rule tells us that the

qualifier “that is not a petty offense” modifies only the phrase

that immediately precedes it: “a different offense.” 18 U.S.C.

§ 3561(a)(3). Read like that, the statute bars a court from

imposing probation and imprisonment for a single offense. A

court may impose both only if a defendant gets imprisonment

for one petty offense and probation for a different offense.

Of course, the last-antecedent rule is not inexorable. See

Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170 (2021) (“The

rule of the last antecedent is context dependent.”). And the

Government contends that this statute is a poor fit for the rule.

It says we can’t divide up the phrase “the same or a different

offense” and apply the qualifier to only part of it. In the

Government’s view, “the same or a different” is an adjectival

phrase modifying the noun “offense.” If that’s correct, then

8

there is only one noun (“offense”) for the qualifier (“that is not

a petty offense”) to modify:

the same or a different offense that is not a petty offense

[________________________] [________] [___________________________]

adjectival phrase noun qualifier

Read that way, it is natural to read the qualifier to reach

“the same.” And it would follow that prison plus probation is

an authorized sentence for a single petty offense.

But that is not the only plausible interpretation of the

statute. Rather than reading “the same” as part of an adjectival

phrase, “the same” can be read as a pronoun. That’s because

“the same” is often used as a pronoun meaning “something that

has previously been defined or described.” Same (pronoun,

def. 2), Webster’s Third New International Dictionary (1993).5

For example, when describing a recent meal at my favorite

restaurant, I could say: “My friend had a steak, and I had the

same.”

5

True, Webster’s Third doesn’t list that meaning of “same” as the

first definition, instead giving precedence to the adjectival meaning.

Cf. Dissenting Op. 9-10. But that just shows that the adjectival

meaning of “same” has been in use for longer. Webster’s Third,

supra, at 4a (“In definitions of words of many meanings, the earliest

ascertainable meaning is given first. Meanings of later derivation are

arranged . . . by dated evidence and semantic development.”).

It also may be true that using “the same” as a pronoun is “legalese.”

Dissenting Op. 10. But Congress often borrows established legal

phrasing when it writes statutes. See FAA v. Cooper, 566 U.S. 284,

292 (2012). And “the same” has been used as a pronoun in some of

this nation’s most important legal documents. See, e.g., U.S. Const.

art. I, § 5 (“Each House shall keep a journal of its proceedings, and

from time to time publish the same . . . .”).

9

If “the same” takes that meaning in § 3561(a)(3), the

statute makes perfect sense. The first part reads: “A defendant

who has been found guilty of an offense may be sentenced to a

term of probation unless . . . [he] is sentenced at the same time

to a term of imprisonment for the same.” 18 U.S.C.

§ 3561(a)(3) (emphases added). The final phrase then adds an

item to the list: “or a different offense that is not a petty

offense.” Id.

Reading “the same” as a pronoun also explains why

Congress used different articles before the items in the list in

§ 3561(a)(3) (“the same”; “a different”). By using the definite

article “the” before “same,” Congress made clear that it was

referring to the offense mentioned earlier in the provision. And

by using the indefinite article “a” before “different,” Congress

captured the universe of other offenses for which a defendant

might be sentenced. See Slack Technologies, LLC v. Pirani,

143 S. Ct. 1433, 1440 (2023) (relying on Congress’s use of the

“definite article” to interpret a statute).

If “the same” is a pronoun, the end of § 3561(a)(3) is

grammatically structured in a way that makes the last-

antecedent rule a natural fit:

the same or a different offense that is not a petty offense

[_________] [_________] [_______] [_________________________]

pronoun adjectival noun qualifier

phrase

As with other statutory lists, it is less awkward “to apply

th[e] modifier only to the item directly before it” than to all the

preceding items. Lockhart, 577 U.S. at 351; see FTC v. Mandel

Brothers, Inc., 359 U.S. 385, 389-90 (1959). That is

particularly true here because there is an intervening adjectival

phrase (“a different”) between the qualifier (“that is not a petty

offense”) and the first item in the list (“the same”). Cf. Antonin

10

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts, 147 (2012) (reading a qualifier to apply to a whole

list is most appropriate “[w]hen there is a straightforward,

parallel construction that involves all nouns or verbs in a

series”).

Little offers a third interpretation of the text. He suggests

that “the same or a different offense” is an “elliptical

construction.” Little Br. 16-17. An elliptical construction is

one in which a word or phrase is omitted from a sentence

because it is implied from context — for instance, “I went to

dinner, and John went [to dinner] too.” Thus, Little says,

§ 3561(a)(3) should be read as if Congress had written “the

same offense or a different offense.” If correct, that reading

would also make the rule of the last antecedent a natural fit

because there are two nouns (one implied and one express)

preceding the qualifier (“that is not a petty offense”).

To be sure, § 3561(a)(3) is no model of clarity. The text

alone struggles to supply an answer to today’s case. But we

don’t read text in a vacuum. And the rest of the statutory

scheme confirms that the Government’s reading is second best.

B. Structure

Courts “must read the words Congress enacted in their

context and with a view to their place in the overall statutory

scheme.” Turkiye Halk Bankasi v. United States, 598 U.S. 264,

275 (2023) (cleaned up). Doing so here confirms — for four

reasons — that a court cannot impose both imprisonment and

probation for a single petty offense.

First, the Government’s reading would subvert the

Sentencing Reform Act’s general rule that probation is a

11

standalone sentence, combinable only with a fine, not with

imprisonment.

The Act sets up that rule by listing a menu of “[a]uthorized

sentences” for a single offense. 18 U.S.C. § 3551. Those

sentences are (1) probation, (2) a fine, (3) imprisonment, (4)

probation and a fine, or (5) imprisonment and a fine. Id.; see

supra Section I.B. That menu is the cornerstone of the

Criminal Code’s chapter on sentences. 18 U.S.C. ch. 227.

So when the Government reads § 3561(a)(3) to add a new

option — probation plus imprisonment — it’s a heavy lift.

Unlike mystery novels, statutes rarely end with a surprise twist.

And here, the surprise would be especially strange. It would

attach a double punishment to petty offenses but not to felonies.

So you could get probation plus prison for speeding in a

national park, but not for assaulting a park ranger.

Second, the Government’s reading would turn a limit on

probation into an expansion of its availability.

Section 3561(a) is a restriction on a sentencing court’s

power. It lists three limits on a sentencing court’s authority to

select probation as a sentence from the menu in § 3551(b).

Those limits are:

(1) when a defendant is sentenced for “a Class

A or B felony”;

(2) when another statute “expressly

preclude[s]” probation; or

(3) when “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.”

12

18 U.S.C. § 3561(a).

From the third of those limits, the Government would

forge an expansion of probation’s availability. That’s an odd

way to read a limit. Imagine your friend said, “You can borrow

my car when I’m out of town, except for three scenarios when

you cannot.” Would you read into the third scenario an

occasion to borrow his car when he’s in town? Probably not if

you wanted to stay friends. That’s because

speakers — including legislatures — do not typically hide new

expansions of authority within limits on a grant of authority.

Third, the Government’s reading of the statute would turn

the Sentencing Reform Act’s post-confinement-monitoring

scheme on its head, subverting two of Congress’s deliberate

choices.

Choice 1: Congress made supervised release, not

probation, the mechanism for court supervision after time in

prison. Supervised release is a term of “postconfinement

monitoring,” which runs from the time a defendant is released.

Johnson v. United States, 529 U.S. 694, 696-97 (2000). It is

not a standalone sentence, but rather is imposed as “part of” the

defendant’s term of imprisonment. 18 U.S.C. § 3583(a).

Unsurprisingly, the rules governing supervised released are

housed within the Code’s subchapter on imprisonment. Id.

ch. 227, subch. D (imprisonment). By contrast, probation is a

distinct sentence, housed in its own subchapter. See id.

§ 3551(b); ch. 227, subch. B (probation).6

6

Probation and supervised release thus play different roles in the

sentencing scheme. “Probation is a standalone sentence that might

allow for intermittent imprisonment during its term, while supervised

release . . . follows a term of imprisonment that has been completed

13

Choice 2: Congress expressly barred supervised release for

petty offenses. 18 U.S.C. § 3583(b)(3). And because

supervised release is the Code’s exclusive form of post-

confinement monitoring, that choice ruled out monitoring after

prison for single-count petty offenders. Once a petty offender

is done with imprisonment he may move on with his

life — whereas more serious offenders may be supervised to

keep them on the straight and narrow.

The Government’s reading of § 3561(a)(3) subverts both

those choices. In its view, whenever a defendant is sentenced

to imprisonment for a petty offense, the court may also impose

a term of probation to follow time in prison. Yet that turns

probation into a form of post-confinement monitoring. Cf.

U.S.S.G. ch. 7, pt. A, note 2(b) (“[t]he conditions of supervised

release” are almost “the same as those for . . . probation”). And

it imposes post-confinement monitoring on single-count petty

offenders even though Congress expressly exempted them

from it. 18 U.S.C. § 3583(b)(3).

Fourth, the Government’s reading of § 3561(a)(3) would

let a court impose more post-confinement monitoring for a

petty offense than for more serious misdemeanors and most

felonies.

The maximum term of supervised release increases with

the severity of the offense. 18 U.S.C. § 3583(b). The most

serious felons get five years, some other felons get three years,

nonpetty misdemeanants get one year, and petty offenders get

none. Id.

in full.” United States v. Panayiotou, 2023 WL 417953, at *2

(D.D.C. Jan. 25, 2023).

14

Reading § 3561(a)(3) to prohibit probation and

imprisonment for a single petty offense — as we

do — preserves that neat correspondence between the severity

of the offense and the length of post-confinement monitoring.

By contrast, because the Government’s reading turns probation

into a form of post-confinement monitoring, it would let a court

impose more monitoring for a petty offense than for more

serious misdemeanors and most felonies:

Offense Term of Post-confinement Monitoring

Our Reading Government Reading

Class A felony 5 years 5 years

Class B felony 5 years 5 years

Class C felony 3 years 3 years

Class D felony 3 years 3 years

Class E felony 1 year 1 year

Nonpetty

1 year 1 year

misdemeanor

Petty offense None 5 years*

If Congress wanted to impose more post-confinement

monitoring for petty offenses than for all but the most serious

felonies, it could. But we would expect clear language

authorizing that bizarre result. Instead, we’re left with

*

That’s five years of probation, to run after a defendant’s

confinement. In contrast, the table’s other figures refer to supervised

release, also to run after a defendant’s confinement.

15

§ 3561(a)(3) — and its text is at best equivocal. See supra

Section II.A; cf. Whitman v. American Trucking Associations,

531 U.S. 457, 468 (2001).

To sum up, there are two possible readings of

§ 3561(a)(3). Our reading keeps probation and imprisonment

as separate sentences. 18 U.S.C. § 3551(b). It takes seriously

Congress’s instruction not to impose post-confinement

monitoring on petty offenders. Id. § 3583(b)(3). And it gives

§ 3561 a serious role to play in the statutory

scheme — allowing imprisonment for one petty offense and

probation for a different offense, while confirming that prison

plus probation is not an available sentence for the same offense.

Id. § 3561(a)(3).

The other possible reading is the Government’s. It is at

odds with the Act’s opening list of available sentences. It turns

a limit on probation into an expansion of it. It sidesteps the bar

on supervised release for petty offenders. And it subjects petty

offenders to a term of post-confinement monitoring five times

longer than the term imposed on some felons.

That cannot be right. Congress isn’t in the business of

putting a statute “at war with itself.” United States v. American

Tobacco Co., 221 U.S. 106, 180 (1911). We thus avoid that

unnecessary conflict by reading § 3561(a)(3) to preserve the

statutory scheme’s bar on sentences of prison plus probation

for the same offense.7

7

As a fallback, the Government argues that Little’s sentence is

authorized by 18 U.S.C. § 3563(b)(10), which lets a sentencing court

require a defendant on probation to “remain in the custody of the

Bureau of Prisons during nights, weekends, or other intervals of

time.” So the Government says the district court’s reliance on

§ 3561(a)(3) was harmless. See United States v. Simpson, 430 F.3d

16

* * *

Section 3561(a)(3) is no model of clarity. For that reason,

thoughtful district judges have divided over the best reading of

it. See United States v. Panayiotou, 2023 WL 417953, at *1 &

n.2 (D.D.C. Jan. 25, 2023) (disagreeing with the Government,

even though “nine judges have adopted [its] position”).

But the Government’s interpretation is second best. It says

§ 3561(a)(3) lets a sentencing court impose probation plus

imprisonment for a single petty offense. Yet that reading

conflicts with the statutory scheme. Congress made probation

and imprisonment separate options for separate offenses;

barred supervised release for petty offenders; and linked the

1177, 1184 (D.C. Cir. 2005) (setting out harmless error test for both

constitutional and nonconstitutional errors). But the Government has

not shown that § 3563(b)(10) authorizes a sixty-day stint in custody

at the start of a defendant’s sentence. Indeed, the statute

contemplates short periods of confinement like “nights” and

“weekends” interspersed throughout probation. 18 U.S.C.

§ 3563(b)(10); see United States v. Forbes, 172 F.3d 675, 676 (9th

Cir. 1999) (“a straight sentence of six months is not the intermittent

incarceration that this statute permits”). In any event, the district

court expressly ruled out imposing intermittent confinement as a

condition of probation. It noted that “the government did not . . .

request [it] in Little’s case.” JA 130-31. And it said intermittent

confinement “would be unwise” because there were “COVID-19

safety concerns inherent in repeatedly entering and leaving detention

facilities.” Id. So the Government cannot show, as it must, that the

district court “would have” imposed the same sentence had it not

misunderstood its sentencing power under § 3561(a)(3). United

States v. Ayers, 795 F.3d 168, 176 (D.C. Cir. 2015) (emphasis

added).

17

length of post-confinement monitoring to the severity of an

offense. The Government’s reading subverts those choices.

We cannot divorce § 3561(a)(3)’s hazy text from that

clarifying context. So we vacate Little’s sentence and remand

to the district court for resentencing.8

So ordered.

8

In his plea agreement, Little waived most of his appellate rights.

But he reserved the right to appeal a sentence “above the statutory

maximum.” JA 22-23. Little argues that reservation allows this

appeal. Little Br. 38. Because the Government “opted not to

enforce” Little’s waiver, we need not decide whether Little reserved

the right to bring this appeal. Govt. Br. 17 n.4; see United States v.

Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015) (appellate

waiver not jurisdictional).

WILKINS, Circuit Judge, dissenting: James Little pleaded

guilty to a petty offense under 40 U.S.C. § 5104(e)(2)(G)

related to his participation in the January 6, 2021 insurrection

at the United States Capitol. The District Court sentenced him

to 60 days’ imprisonment, followed by three years of

probation. On appeal, Little offers several different reasons

why his split sentence violates federal sentencing statutes. The

majority agrees. Because I believe that the majority and Little

are mistaken, I respectfully dissent.

I.

A few weeks after the 2020 election, Little uploaded an

almost 23-minute YouTube video contesting the election

results and mentioning a potential civil war. On January 5,

2021, Little traveled from North Carolina to Washington, D.C.

to attend former President Trump’s “Stop the Steal” rally the

following day—January 6. J.A. 54; Appellant Br. 8.

“January 6, 2021, marked a tragic day in American history.

The peaceful transfer of power—one of our most important and

sacred democratic processes—came under a full-fledged

assault.” United States v. Little, 590 F. Supp. 3d 340, 342

(D.D.C. 2022). While Congress assumed its constitutional

duty to certify the results of the 2020 election, “[r]ioters”

forced their way into the Capitol building. Id. This violent

attack resulted in multiple deaths, injuries, and “inflicted

millions of dollars in damage to the Capitol.” Trump v.

Thompson, 20 F.4th 10, 15 (D.C. Cir. 2021). Little joined the

other rioters who forced their way into the Capitol.

While inside the building, Little smiled and first-bumped

other rioters, took photographs of himself, J.A. 13, and sent a

text message stating, “We just took over the Capital [sic]!” J.A.

12. The individual who received the message responded, “And

you are bragging? ‘We’? THIS IS TREASON!!! IF YOU

DON’T CONDEMN THIS, NEVER BOTHER SPEAKING

2

TO ME AGAIN! HORRIBLE, HORRIBLE PEOPLE. IT’S A

COUP! YOU OBVIOUSLY HATE AMERICA!!!” Id. To

this, Little stated, “We are stopping treason! Stealing elections

is treason! []We’re not going to take it anymore!” and “[y]ou’ll

thank me for saving your freedom . . . later!” Id.

Although Little “did not directly assault officers[,]” his

participation was essential because those who did engage in

violence “were able to do so because they found safety in

numbers.” Little, 590 F. Supp. 3d at 342.

Little was ultimately arrested and charged with four

counts: (1) entering and remaining in a restricted building or

grounds in violation of 18 U.S.C. § 1752(a)(1); (2) disorderly

and disruptive conduct in a restricted building or grounds in

violation of 18 U.S.C. § 1752(a)(2); (3) disorderly conduct in a

Capitol building or grounds in violation of 40 U.S.C.

§ 5104(e)(2)(D); and (4) parading, demonstrating, or picketing

in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G).

J.A. 16–17.

In November 2021, Little pleaded guilty to one count of

parading, demonstrating, and picketing in a Capitol building in

violation of 40 U.S.C. § 5104(e)(2)(G). See J.A. 19–33. As a

Class B misdemeanor carrying a six-month statutory maximum

penalty, this is a petty offense. See 18 U.S.C. § 19 (defining

petty offenses as including Class B); id. § 3559(a)(7)

(establishing Class B misdemeanors as offenses carrying a

maximum of six months’ imprisonment). Little was sentenced

to a term of 60 days’ imprisonment, followed by a term of three

years’ probation. J.A. 227–28. In doing so, the District Court

noted that this sentence was necessary to “not only punish

Little for his conduct but also ensure that he will not engage in

similar conduct again during the next election.” Little, 590 F.

3

Supp. 3d at 344 (“Only a split sentence would adequately serve

the goals of sentencing described in 18 U.S.C. § 3553.”).

II.

Little contends that his sentence of incarceration, followed

by a term of probation (commonly called a “split sentence”) is

illegal. Resolution of the issue turns on the interpretation of 18

U.S.C. § 3561(a), which provides as follows:

(a) In general.--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

(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.

As we see, Section 3561(a) is a list of exceptions—instances

when the district judge cannot impose a sentence of probation.

It provides that a defendant “may be sentenced to a term of

probation unless” one of the three enumerated exceptions in

subsections (a)(1), (a)(2), or (a)(3) applies.

4

The District Court found that the probation exception in

§ 3561(a)(3) did not apply to Little, and thus the court imposed

a split sentence, a term of imprisonment followed by a term of

probation.

A.

To understand the probation exception in § 3561(a)(3), we

need to take a step back. Prior to the Sentencing Reform Act

of 1984, federal prison sentences were by default

indeterminate: if the court imposed a prison sentence, the

defendant would be eligible for parole after serving one-third

of the prison term, but whether and when the defendant was

released on parole was solely within the discretion of the U.S.

Parole Commission. See generally United States ex rel.

D'Agostino v. Keohane, 877 F.2d 1167, 1169–70 (3d Cir.

1989). Hence, even though the court imposed the prison term,

the amount of time that the defendant would actually spend in

prison was “indeterminate” at the time of sentencing. As the

Supreme Court explained, “under the indeterminate-sentence

system, Congress defined the maximum, the judge imposed a

sentence within the statutory range (which [the judge] usually

could replace with probation), and the Executive Branch’s

parole official eventually determined the actual duration of

imprisonment.” Mistretta v. United States, 488 U.S. 361, 365

(1989).

On the other hand, “[d]eterminate sentences are those

whose length can be measured with relative certainty at the

time they are imposed.” ARTHUR W. CAMPBELL, LAW OF

SENTENCING § 4:3 (3d ed. 2022). To impose a determinate

sentence prior to the Sentencing Reform Act, courts used split

sentences. In a split sentence, the court imposed a term of

imprisonment, but suspended the execution of all except a

specific number of days or months, followed by a term of

probation. In this manner, the court could determine exactly

5

how much time the defendant spent in prison, and the

defendant was supervised on probation, rather than parole, after

his release. If the defendant violated probation, the court could

then impose the remainder of the prison term that was

suspended.

The preceding example is how the court imposed a split

sentence in a single-count case. In a multiple-count case, the

court could impose a split sentence by imposing a prison term

on one count and a probation term on the second count. See,

e.g., United States v. Nunez, 573 F.2d 769, 770–72 & n.5 (2d

Cir. 1978) (finding split sentence in a single-count case was

lawful where court imposed a three-year term of imprisonment

with all but six months suspended, followed by a four-year

term of probation and noting that “[a] judge could achieve this

result . . . on a multi-count indictment by giving a prison

sentence on one count and a period of probation on another[]”);

Green v. United States, 298 F.2d 230, 231–33 (9th Cir. 1961)

(affirming a split sentence imposed in a multiple-count case).

The Sentencing Reform Act “makes all [prison] sentences

basically determinate. A prisoner is to be released at the

completion of his sentence reduced only by any credit earned

by good behavior while in custody.” Mistretta, 488 U.S. at 367

(citing 18 U.S.C. § 3624(a), (b)). Upon release from prison,

the defendant is placed on supervised release, and if the

defendant violates those terms and conditions, supervised

release can be revoked and the defendant can be sent back to

prison. See 18 U.S.C. § 3583. As a result, split sentences were

no longer needed to achieve determinate sentences—every

prison term imposed was now determinate, and post-release

supervision was handled by supervised release, rather than

parole or probation.

6

The Sentencing Reform Act basically replicated the split

sentencing method of imposing a determinate sentence by

creating its “functional equivalent,” which used “a term of

imprisonment followed by a period of supervised release.”

U.S.S.G. § 5.B1.1 cmt. background (citing former 18 U.S.C.

§ 3561 (repealed 1984); 18 U.S.C. § 3583; and quoting S. S.

REP. NO. 98–225 (1983)).

Because the use of split sentences was no longer necessary

to achieve determinate sentencing, the Sentencing Reform Act

eliminated split sentences in single-count and multiple-count

cases. The Act did so by prohibiting the imposition of

probation when “the defendant is sentenced at the same time to

a term of imprisonment for the same or a different offense.”

Pub. L. No. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat.

1992 (emphasis added). (This was the original language of

§ 3561(a)(3) in the Sentencing Reform Act.).

For reasons it never articulated, Congress eliminated the

option of imposing supervised release following a term of

imprisonment for petty offenses shortly after the October 1,

1987, effective date of the Sentencing Reform Act. Sentencing

Act of 1987, Pub. L. No. 100–182, § 8, 101 Stat. 1266 (1987)

(amending the supervised release statute, 18 U.S.C.

§ 3583(b)(3), to add the words “other than a petty offense”).

It thus appears undisputed that as of the end of 1987,

Congress abolished split sentences for all offenses, whether

effectuated by imposing imprisonment and probation in a

single-count case or by doing so in a multiple-count case. It is

also undisputed that as of the end of 1987, Congress eliminated

supervised release as an option for court supervision following

a prison sentence for petty offenses, whether in a single-count

case or a multiple-count case.

7

B.

In 1994, Congress amended the prohibition on split

sentences appearing at 18 U.S.C. § 3561(a)(3) “by inserting

‘that is not a petty offense’ before the period.” Violent Crime

Control and Law Enforcement Act of 1994, Pub. L. No. 103-

322, Title XXVIII, § 280004, 108 Stat. 1796 (1994). Thus, the

provision now prohibits the imposition of probation when “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.” 18 U.S.C. § 3561(a)(3) (emphasis added). The

present dispute centers on how to interpret the 1994

amendment.

As described above, Little was given a split sentence on a

single petty offense count: 60 days’ imprisonment followed by

three years of probation. Little concedes that the 1994

amendment created an exception to allow for split sentences in

cases involving petty offenses, but he contends that Congress

only intended to allow split sentences in multiple-count petty

offense cases—not in single-count petty offense cases:

If the restrictive phrase (“that is not a petty

offense”) modifies only the phrase that precedes

it (“a different offense”), then the provision

permits a defendant convicted of two petty

offenses to receive a sentence of imprisonment

on one offense and probation on the other, but

prohibits dual punishment—imprisonment and

probation—for a single petty offense.

Appellant Br. 14–15.

For several reasons, Little’s interpretation of the statute is

untenable.

8

Recall the text of 18 U.S.C. § 3561(a)(3) following the

1994 amendment: probation may be imposed “unless . . . 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.” Importantly, the adjectives “same” and

“different” modify the same word: “offense.” Immediately

after the word “offense[,]” we find the restrictive clause at

issue: “that is not a petty offense.” Invoking the last antecedent

rule, Little argues that the restrictive clause, “that is not a petty

offense,” modifies the phrase that precedes it, “a different

offense,” but not the word “same.”

This is an improper application of the rule of the last

antecedent. The rule provides that “a limiting clause or phrase

. . . should ordinarily be read as modifying only the noun or

phrase that it immediately follows.” Jama v. Immigr. &

Customs Enf’t, 543 U.S. 335, 343 (2005) (quoting Barnhart v.

Thomas, 540 U.S. 20, 26 (2003)). The most obvious

application of the rule is to construe the limiting clause “that is

not a petty offense” as modifying the noun that it immediately

follows: “offense.” Alternatively, we could consider the

limiting clause as modifying the prepositional phrase that

precedes it—“for the same or a different offense”—because

“the most natural way to view the modifier is as applying to the

entire preceding clause” since “that clause hangs together as a

unified whole . . . .” Cyan, Inc. v. Beaver Cnty. Emps. Ret.

Fund, 138 S. Ct. 1061, 1077 (2018). Thus, whether the limiting

clause modifies “offense” or “for the same or a different

offense,” either construction results in an exception to the split

sentence prohibition in both single-count and multiple-count

petty offense cases.

Little’s argument that the limiting clause instead modifies

only the phrase “different offense” turns the sentence into a

9

grammatical jumble. The adjective “same” still modifies the

exact word as the adjective “different,” but in Little’s construct,

the identical word now means “any offense” when modified by

“same,” and it means “any offense that is not a petty offense”

when modified by “different.” The word “offense” cannot

have two different meanings when simultaneously modified by

separate adjectives. Further, Little’s construct gives meaning

to “different offense,” but it makes the adjective “same” an

orphan, because it no longer has a noun to modify. When used,

the last antecedent rule must be applied “without impairing the

meaning of the sentence[,]” NORMAN SINGER, SUTHERLAND ON

STATUTORY CONSTRUCTION § 47:33 (7th ed. 2022) (citation

omitted). Little’s application of the last antecedent rule fails

this fundamental test.1

The majority tries to evade this grammatical confusion by

asserting that Congress used “same” as a pronoun rather than

an adjective. Maj. Op. 8. However, at the time of the 1994

1

If Congress had intended to reach the result sought by Little, it

would have set forth “same offense” separately, so that “different

offense” could be considered a separate referent for the limiting

clause that follows. For instance, Congress could have added the

word “offense” and said that probation may be imposed “unless . . .

the defendant is sentenced at the same time to a term of imprisonment

for the same offense or a different offense that is not a petty offense.”

See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE

INTERPRETATION OF LEGAL TEXTS 148–49 (2012) (comparing

“Institutions or societies that are charitable in nature (the institutions

as well as the societies must be charitable)[]” with the alternative

drafting, “An institution or a society that is charitable in nature (any

institution probably qualifies, not just a charitable one)[]”). Even if

Congress had added the word “offense” after “same,” the sentence

would still only “probably” have the meaning that Little would

prefer. Id. at 149. But it is a moot point, because that is not what

Congress did here.

10

amendment at issue, every major English dictionary (including

the one cited by the majority) listed “same” in its adjective form

as the first definition. See WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2007 (1993); OXFORD ENGLISH

DICTIONARY 427 (1989); MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY 1033 (1993); AMERICAN HERITAGE DICTIONARY

OF THE ENGLISH LANGUAGE 1088 (1985); RANDOM HOUSE

COLLEGE DICTIONARY 1165 (1982).

The majority also relies on Congress’s use of the definite

article as support for the contention that “same” is being used

as a pronoun. Maj. Op. 8-9. That is rather weak sauce, given

that the definite article almost always precedes “same,” even

when the word is clearly used as an adjective. No one says,

“My friend had a steak, and I had a same steak.”

Thus, “same” as an adjective was indisputably the most

common usage of the word at the time Congress wrote the

statutory text at issue. As one prominent commentator has put

it, using same as a pronoun is “legalese” that should be

“avoided by all that have any skill in writing,” because “[t]he

words it, them, and the noun itself . . . are words that come

naturally to us all; same or the same is an unnatural English

expression[.]” BRYAN A. GARNER, GARNER’S DICTIONARY OF

LEGAL USAGE 796 (3d ed. 2011) (citation omitted). Of course,

“the same” can be used as a pronoun properly in some

instances, but just because “a definition is broad enough to

encompass one sense of a word does not establish that the word

is ordinarily understood in that sense.” Taniguchi v. Kan Pac.

Saipan, Ltd., 566 U.S. 560, 568 (2012) (emphasis in original).

Consequently, I cannot agree with the majority’s attempt to

shoehorn the usage of “same” as a pronoun into the statutory

text to support Little’s interpretation.

11

My interpretation of the statute also comports more with

the purpose of the 1994 amendment, as reflected in its title

“Authorization of Probation for Petty Offenses in Certain

Cases.” See Dubin v. United States, 143 S. Ct. 1557, 1567

(2023) (noting that a title can be used to find meaning of a

statute); accord Yates v. United States, 574 U.S. 528, 539–40

(2015); Almendarez-Torres v. United States, 523 U.S. 224, 234

(1998). With the 1994 amendment, Congress clearly intended

to authorize probation “for petty offenses” in instances where

probation was not previously allowed. The one instance in

which we are guaranteed to manifest Congress’s intent is in a

single offense case. Let me explain.

Suppose Mr. Little had stopped at a bank on his way to the

Capitol on January 6, 2021 and handed the teller a note

demanding cash, violating 18 U.S.C. § 2113, a felony. If Little

pleaded guilty to bank robbery and the instant petty offense—

the district judge could sentence Little to three years’ probation

for the bank robbery, if the judge sentenced Little at the same

time to 90 days’ imprisonment for the petty offense of parading

and demonstrating at the Capitol. This is so pursuant to either

my or the majority’s interpretation of Section 3561(a)(3),

because the statute allows a sentence of probation to be

imposed for the bank robbery “unless . . . the defendant is

sentenced at the same time to a term of imprisonment for . . . a

different offense that is not a petty offense.” Because the

“different offense” (parading and demonstrating) is a petty

offense, the judge could impose probation for the felony bank

robbery, to follow the prison sentence for the petty offense.2

2

Conversely, if the judge instead sentenced Little to 90 days’

imprisonment on the bank robbery, he could not sentence Little to

three years’ probation on the parading and demonstrating charge.

Because bank robbery is not a petty offense, the exception in Section

3561(a)(3) would apply that disallows a probationary sentence to be

imposed at the same time as a prison sentence for a different offense.

12

Thus, even though Congress apparently intended to

“authoriz[e] . . . probation for petty offenses” with the

amendment, Violent Crime Control and Law Enforcement Act

§ 280004, the language authorizes probation for any offense,

including felonies, so long as the probation is imposed at the

same time as a prison sentence for a petty offense. And while

this is perhaps an unintended consequence—yet nevertheless

the result of Congress’s drafting—it remains true because the

limitation to petty offenses was placed on the offense that

received the prison term, but no similar limitation was placed

on the offense that could simultaneously receive the

probationary term.

Where the defendant is convicted of only a single petty

offense, such as in this case, my reading of the statute would

authorize probation to be imposed for that petty offense where

it was previously prohibited and in accordance with the intent

of Congress as described in the title of the 1994 amendment.

Indeed, cases in which there is only a single petty offense are

the only instances where that outcome is guaranteed. Where

there are two different offenses, application of the 1994

amendment could not only authorize probation when there are

two petty offenses, but it could also authorize probation for a

felony that is sentenced at the same time as a petty offense, as

shown in the hypothetical above. Thus, construing the 1994

amendment to apply to a single offense not only comports with

the natural and ordinary meaning of “same,” it also ensures that

Congress’s desire to authorize probation for petty offenses

where it had previously been prohibited can actually occur in

those instances where that outcome is guaranteed.

Construing the text to modify the split sentence exception

to apply regardless of whether there is one petty offense or

multiple petty offenses also comports with the statutory

scheme. In 1984, Congress drafted § 3651(a)(3) in a manner

13

to prohibit split sentences in all instances, regardless of whether

the defendant was being sentenced on one count or multiple

counts. It would stand to reason that when Congress made an

exception to the split-sentence prohibition for petty offenses, it

would do so for all split sentences involving petty offenses,

regardless of whether the defendant was being sentenced on

one count or multiple counts.

Indeed, precluding split sentences for single petty offenses

affirmatively frustrates the purposes of sentencing as set forth

in the Sentencing Reform Act. “When meting out sentences,

judges must consider the goals of punishment, deterrence,

incapacitation, and rehabilitation.” United States v. Godoy,

706 F.3d 493, 496 (D.C. Cir. 2013) (citing 18 U.S.C. §

3553(a)(2)). “These four considerations—retribution,

deterrence, incapacitation, and rehabilitation—are the four

purposes of sentencing generally, and a court must fashion a

sentence ‘to achieve the[se] purposes ... to the extent that they

are applicable’ in a given case.” Tapia v. United States, 564

U.S. 319, 325 (2011) (quoting 18 U.S.C. § 3553(a)). See also

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1903 (2018);

Rita v. United States, 551 U.S. 338, 347–48 (2007). However,

Congress’s message in the Sentencing Reform Act was, “Do

not think about prison as a way to rehabilitate an offender,”

Tapia, 564 U.S. at 330, because the Act “expressly prohibited

a district court in crafting an initial sentence from considering

a defendant’s need for rehabilitation in support of a prison

sentence.” Concepcion v. United States, 142 S. Ct. 2389, 2400

(2022) (citing 18 U.S.C. § 3582(a)). See also Mistretta, 488

US. at 367 (explaining that the Act “rejects imprisonment as a

means of promoting rehabilitation”). Rather than prison,

probation and supervised release are the proper means of

effectuating the rehabilitative purposes of sentencing under the

Act. See Tapia, 564 U.S. at 330.

14

The district judge has a duty to “consider all of the.

§ 3553(a) factors to determine whether they support the

sentence requested by a party,” Gall v. United States, 552 U.S.

38, 49–50 (2007), when sentencing a defendant for a single

petty offense, just as in any other case. See 18 U.S.C. § 3553(b)

(in absence of a sentencing guideline, “court shall impose an

appropriate sentence, having due regard for the purposes set

forth in subsection (a)(2)”); U.S.S.G. § 1B1.9 (sentencing

guidelines do not apply to Class B and C misdemeanors or

infractions). Accordingly, when imposing a sentence for a

single petty offense, the judge must consider “the overarching

sentencing purposes of “retribution, deterrence, incapacitation,

and rehabilitation.” Rosales-Mireles, 138 S. Ct. at 1903

(quoting Tapia, 564 U.S. at 325). The judge could reasonably

conclude that a short prison sentence is necessary as a means

of retribution and deterrence in a single petty offense case. But

what if the judge also finds that the defendant needs

rehabilitation? The Sentencing Reform Act “instruct[s]

sentencing courts to consider rehabilitation as one of the

purposes of sentencing but bars them from seeking to achieve

rehabilitation through imprisonment.” In re Sealed Case, 573

F.3d 844, 851 (D.C. Cir. 2009) (citing 18 U.S.C. § 3582(a) and

18 U.S.C. § 3553(a)). Consequently, where supervised release

is not an option, the only way that the judge can comply with

the foundational requirements of the Sentencing Reform Act is

to impose a sentence of imprisonment to be followed by a term

of probation – a split sentence. Indeed, in this very case, the

district judge found that “[o]nly a split sentence would

adequately serve the goals of sentencing described in 18 U.S.C.

§ 3553,” Little, 590 Supp. 3d at 344.

The majority’s interpretation prevents this district judge

from complying with Section 3553(a), a bedrock mandate of

the Sentencing Reform Act. That’s a colossal lift for a

secondary definition of a word.

15

If petty offenders need a short prison sentence to punish

them, to reflect the seriousness of the offense and to deter them

from future criminal conduct, they need it regardless of

whether they committed one petty offense or two. If petty

offenders need rehabilitation following imprisonment, they

need it regardless of whether they committed one petty offense

or two. If Congress no longer wanted to force judges to choose

either punishment or rehabilitation for petty offenses – contrary

to the dictates of Section 3553(a) – there is no reason to believe

it intended to eliminate this Hobson’s choice only when the

defendant was convicted of two petty offenses, but not one. It

should go without saying that Congress intended for district

judges to comply with Section 3553(a) in every sentencing of

a petty offense, whether for a single count or for multiple

counts. The majority points to nothing indicating that

Congress intended to render Section 3553(a) impotent in single

petty offense cases when it enacted the 1994 amendment. We

should not do so here. See Ali v. Federal Bureau of

Prisons, 552 U.S. 214, 222 (2008) (construction of

a statutory term “must, to the extent possible, ensure that

the statutory scheme is coherent and consistent”); Hibbs v.

Winn, 542 U.S. 88, 101 (2004) (“[a] statute should be construed

so that effect is given to all its provisions, so that no part will

be inoperative or superfluous, void or insignificant ....”)

(quoting 2A N. Singer, Statutes and Statutory Construction §

46.06, pp.181–186 (rev. 6th ed.2000)).

The majority makes much of the anomalies between

imprisonment followed by supervised release and

imprisonment followed by probation. Maj. Op. 11-15. But the

majority must concede that, notwithstanding any such

anomalies that might result, Congress intended to allow

imprisonment followed by probation for defendants sentenced

to multiple offenses, whether it is two petty offenses or a felony

16

and a petty offense. That concession seriously undermines any

concern about anomalies and incongruities, given that there is

no question that Congress intended to allow one form of split

sentences (the multiple-count form involving at least one petty

offense). The only question is whether we must override the

most natural reading of the text based on something never

uttered by Congress: it could live with the resulting anomalies

created by split sentences in multiple offense cases, but the

anomalies that result in the other form of split sentences (the

single-count form) were simply a bridge too far. The majority

points to no such evidence, and I find none.

***

In sum, the majority has departed from the natural and

common reading of the statutory text, and in doing so, has

undermined 18 U.S.C. § 3553(a), the foundational provision

governing the crafting of sentences under the Sentencing

Reform Act. The District Court should be affirmed,3 and I

respectfully dissent.

3

Following vacatur of the sentence on remand, it appears that the

district judge could impose a sentence of imprisonment or probation,

and that he would not be limited to the 90 days or three years that

were imposed before if he concluded that either a longer prison or

probationary term were required to meet the goals of 18 U.S.C. §

3551. See Davenport v. United States, 353 F.2d 882, 884 (D.C. Cir.

1965) (per curiam) (“[A] defendant who successfully attacks an

invalid sentence can ‘be validly resentenced though the resentence

increased the punishment.’”) (quoting Hayes v. United States, 249

F.2d 516, 517 (D.C. Cir. 1957)).