Petition for Writ of Certiorari — James Little, Petitioner v. United States

Supreme Court briefMay 8, 2025

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No. 24In the

Supreme Court of the United States

JAMES LITTLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of A ppeals for the District of Columbia

PETITION FOR WRIT OF CERTIORARI

Joshua B. Carpenter

Counsel of Record

Appellate Chief

1 Page Avenue, Suite 210

Asheville, NC 28801

(828) 232-9992

joshua_carpenter@fd.org

Attorney for Petitioner

James Little

381057

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

James Little pled guilty to a single petty offense arising from the events at

the U.S. Capitol on January 6, 2021. After a successful appeal challenging his

initial sentence, Little was resentenced by the district court in January 2024. Little

filed a second appeal, contending that the district court violated the double jeopardy

clause—as interpreted by Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and In re

Bradley, 318 U.S. 50 (1943)—when it imposed an increased prison sentence at

resentencing. On December 20, 2024, the D.C. Circuit issued a published opinion

that affirmed Little’s sentence and rejected his double jeopardy argument. See

United States v. Little, 123 F.4th 1360 (D.C. Cir. 2024).

Then, on January 20, 2025, the President issued an Executive Order titled

“Granting Pardons and Commutation of Sentences for Certain Offenses Relating to

the Events at Or Near the United States Capitol on January 6, 2021.” Among other

things, that Order directed the Attorney General to seek dismissal with prejudice of

all pending cases against individuals for “conduct related to the events at or near

the United States Capitol on January 6, 2021.” In accord with the Executive Order’s

directive, the government filed a motion to dismiss the information in Little’s case

on February 27, 2025.

The question presented is:

Should this Court grant the petition, vacate the judgment below, and remand

the case for further consideration of the government’s pending motion to dismiss?

RELATED PROCEEDINGS

United States v. Little, No. 1:21-cr-315 (D. D.C.), amended judgment entered

January 29, 2024.

United States v. Little, No. 22-3018 (D.C. Cir.), judgment entered August 18, 2023.

United States v. Little, No. 24-3011 (D.C. Cir.), judgment entered December 20,

2024.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

DECISIONS BELOW .................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 4

CONCLUSION............................................................................................................... 6

iii

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, DECIDED

DECEMBER 20, 2024 ............................................................................................ 1a

APPENDIX B — MEMORANDUM AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, FILED

JANUARY 17, 2024 .............................................................................................. 22a

APPENDIX C — JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA, FILED JANUARY 29,

2024 ....................................................................................................................... 35a

APPENDIX D — OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, DECIDED

AUGUST 18, 2023 ................................................................................................ 39a

APPENDIX E — JUDGMENT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA, FILED MARCH 24, 2022 ...... 72a

TABLE OF AUTHORITIES

Cases

Bronsozian v. United States,

No. 19-6220, 2020 WL 1906543 (U.S. Apr. 20, 2020) .......................................... 4, 5

Clay v. United States,

537 U.S. 522 (2003) .................................................................................................. 5

Ex parte Lange,

85 U.S. (18 Wall.) 163 (1873) ............................................................................... 2, 3

In re Bradley,

318 U.S. 50 (1943) ................................................................................................ 2, 3

Rinaldi v. United States,

434 U.S. 22 (1977) .................................................................................................... 6

United States v. Burdeau,

168 F.3d 352 (9th Cir. 1999) .................................................................................... 5

United States v. Knight,

981 F.3d 1095 (D.C. Cir. 2020) ................................................................................ 5

Constitutional Provisions

U.S. Const. amend. V ..................................................................................................... 1

Statutes, Rules and Regulations

28 U.S.C. § 1254(1). ....................................................................................................... 1

40 U.S.C. § 5104(e)(2)(G) ............................................................................................... 2

Fed. R. Crim. P. 48(a) ............................................................................................ 1, 4, 5

Other Authorities

Brief for the United States,

Bronsozian v. United States, No. 19-6220 (March 2020) ........................................ 4

Memorandum and Order (Doc. 69),

United States v. Little, No. 1:21-CR-315 (D. D.C. Jan. 17, 2024) ........................... 3

Report and Recommendation (Doc. 88),

United States v. Pryer, No. 1:21-CR-667 (D. D.C. Jan. 17, 2024) ........................... 3

PETITION FOR WRIT OF CERTIORARI

Petitioner James Little respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the District of Columbia

Circuit.

DECISIONS BELOW

The first opinion of the court of appeals (Pet. App. 1a-21a) is published at 78

F.4th 453 (D.C. Cir. 2023); the second opinion (Pet. App. 39a-71a) is published at

123 F.4th 1360 (D.C. Cir. 2024). The district court’s order addressing Little’s double

jeopardy argument is at Pet. App. 22a-34a. The judgment of the district court,

entered upon resentencing, is at Pet. App. 35a-38a.

JURISDICTION

The court of appeals entered judgment on December 20, 2024. Pet. App. 1a.

On March 14, 2025, the Chief Justice extended the time within which to file a

petition for a writ of certiorari to and including May 19, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Double Jeopardy Clause of the Fifth Amendment provides, “nor shall any

person be subject for the same offence to be twice put in jeopardy of life or limb.”

Rule 48(a) of the Federal Rules of Criminal Procedure says: “The government

may, with leave of court, dismiss an indictment, information, or complaint. The

government may not dismiss the prosecution during trial without the defendant’s

consent.”

STATEMENT OF THE CASE

The opinion of the court of appeals addressed a novel, but potentially

recurring, issue regarding the application of the Double Jeopardy Clause, as

interpreted by this Court in Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and In re

Bradley, 318 U.S. 50 (1943). Although that issue might have merited this Court’s

review, such review was rendered unnecessary when the President issued an

Executive Order on January 20, 2025, titled “Granting Pardons and Commutation

of Sentences for Certain Offenses Relating to the Events at Or Near the United

States Capitol on January 6, 2021.” Pursuant to that Order, the government has

moved to dismiss the information in this case with prejudice. This Court should

vacate the judgment below and remand for the district court to address that motion

in the first instance.

Following the events of January 6, 2021, Little pled guilty to a single petty

offense for parading, demonstrating, or picketing in a Capitol building in violation

of 40 U.S.C. § 5104(e)(2)(G). Unlike many of the people charged with January 6

offenses, the government conceded throughout the case that Little did not

personally engage in any violent or assaultive behavior. At sentencing in March

2022, the district court imposed a dual sentence of 60 days in prison plus three

years of probation. Pet. App. 72a-78a.

On appeal, Little argued that the controlling statutes authorized the

alternative options of imprisonment or probation, but not a dual sentence of

imprisonment and probation. The D.C. Circuit agreed in a divided opinion and

remanded for resentencing. Pet. App. 39a-71a.

By the time of the remand proceedings, Little had served his entire 60-day

term of imprisonment. He had also served 18 months of his probation term. Before

resentencing, he argued that the double jeopardy clause—as interpreted by Ex parte

Lange and In re Bradley—prohibited the district court from imposing any additional

punishment because he had already served his entire 60-day prison term. That

double jeopardy question produced conflicting judicial opinions in similar cases.

Compare Memorandum and Order (Doc. 69), United States v. Little, No. 1:21-CR315 (D. D.C. Jan. 17, 2024) with Report and Recommendation (Doc. 88), United

States v. Pryer, No. 1:21-CR-667 (D. D.C. Jan. 17, 2024) (Faruqui, J.). After rejecting

Little’s double jeopardy argument, the district court imposed an increased prison

sentence of 150 days while giving Little credit of 30 days for the 18 months of time

served on probation. See Pet. App. 5a. The result was an increased sentence that

would require Little to serve an additional 60 days in prison. Id.

On appeal, the D.C. Circuit granted Little’s motion for release pending

appeal. Then, on December 20, 2024, the D.C. Circuit issued a published opinion

that affirmed Little’s sentence and rejected his double jeopardy argument. Pet. App.

1a-21a. Based on that outcome, Little intended to seek this Court’s review of the

double jeopardy issue, one that had the potential to recur in other January 6 petty

offense prosecutions.

Then, on January 20, 2025, the President issued an Executive Order titled

“Granting Pardons and Commutation of Sentences for Certain Offenses Relating to

the Events at Or Near the United States Capitol on January 6, 2021.” Among other

things, that Order directed the Attorney General to seek dismissal with prejudice of

all pending cases against individuals for “conduct related to the events at or near

the United States Capitol on January 6, 2021.”

Based on that Executive Order, the government moved on February 27, 2025,

to dismiss the information in Little’s case pursuant to Rule 48(a) of the Federal

Rules of Criminal Procedure. That motion remains pending before the district court.

REASONS FOR GRANTING THE WRIT

Based on the government’s pending motion to dismiss the information in this

case, the Court should grant the petition, vacate the judgment below, and remand

the case for further proceedings.

This course of action is supported by the Court’s longstanding practice in

similar cases where the government moves to dismiss a criminal charge after the

issuance of an appeals court opinion. For example, in Bronsozian v. United States,

No. 19-6220, the defendant filed a petition for certiorari after the Ninth Circuit

affirmed his conviction. Upon review of the case, the government filed a motion in

the district court seeking to dismiss the indictment. It then asked this Court to

grant the defendant’s petition, vacate the judgment and remand for consideration of

the pending motion to dismiss. See Brief for the United States, Bronsozian v. United

States, No. 19-6220 (March 2020), at 8-9 (collecting numerous examples of the Court

following this practice). The Court again followed that practice in Bronsozian. See

Bronsozian v. United States, No. 19-6220, 2020 WL 1906543, at *1 (U.S. Apr. 20,

2020) (“Judgment vacated, and case remanded to the United States Court of

Appeals for the Ninth Circuit for further consideration in light of the pending

application to vacate the judgment and dismiss the indictment.”).

Moreover, the government’s motion to dismiss in Little’s case is procedurally

proper. As an initial matter, Little’s case was (and still is) “pending” such that the

Attorney General was required by the Executive Order to seek dismissal. See Clay

v. United States, 537 U.S. 522, 525 (2003) (“a judgment of conviction becomes final

when the time expires for filing a petition for certiorari contesting the appellate

court’s affirmation of the conviction”). And Rule 48(a) is the proper mechanism for

seeking dismissal. That rule provides that “[t]he government may, with leave of

court, dismiss an indictment, information, or complaint.” Consistent with this

Court’s practice in cases like Bronsozian, Rule 48(a) has been interpreted to permit

dismissal during a defendant’s appellate proceedings. See also United States v.

Burdeau, 168 F.3d 352, 359 (9th Cir. 1999) (“Under Federal Rule of Criminal

Procedure 48(a), the government has the power to move to dismiss any count of the

indictment as long as the defendant’s appeal is pending and the decision is

therefore not final.”); United States v. Knight, 981 F.3d 1095, 1109 (D.C. Cir. 2020)

(holding, in a case on direct appeal, that “”[e]ven now, the prosecution may seek

dismissal of some or all of the charges against Thorpe under Rule 48(a) of the

Federal Rules of Criminal Procedure.”) (citing Rinaldi v. United States, 434 U.S. 22

(1977)).

In any event, to the extent there are any questions about the propriety of the

government’s motion, they would be best addressed by the district court in the first

instance on remand.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted, the judgment below vacated, and the case remanded for further

proceedings.

Respectfully submitted,

/s/ Joshua B. Carpenter

Joshua B. Carpenter

Counsel of Record

Appellate Chief

1 Page Avenue, Suite 210

Asheville, NC 28801

Telephone: (828) 232-9992

Facsimile: (828) 232-5575

Email: joshua_carpenter@fd.org

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A — OPINION OF THE UNITED STATES

C O U RT O F A P P E A L S F O R T H E D I S T R I C T O F

COLUMBIA CIRCUIT, DECIDED DECEMBER 20, 2024 . . . . . . . . . 1a

APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA, FILED JANUARY 17, 2024 . . . . . . . . . . . . . . . . . . . . 22a

APPENDIX C — JUDGMENT OF THE UNITED

S TAT E S D I S T R I C T C O U RT F O R T H E D I S T R I C T

OF COLUMBIA, FILED JANUARY 29, 2024 . . . . . . . . . . . . . . . . . . . . 35a

APPENDIX D — OPINION OF THE UNITED STATES

C O U RT O F A P P E A L S F O R T H E D I S T R I C T O F

COLUMBIA CIRCUIT, DECIDED AUGUST 18, 2023 . . . . . . . . . . . . 39a

APPENDIX E — JUDGMENT OF THE UNITED

S TAT E S D I S T R I C T C O U RT F O R T H E D I S T R I C T

OF COLUMBIA, FILED MARCH 24, 2022 . . . . . . . . . . . . . . . . . . . . . . 72a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2024

Decided December 20, 2024

No. 24-3011

UNITED STATES OF AMERICA,

APPELLEE

JAMES LITTLE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

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

Joshua B. Carpenter, Appellate Chief, Office of the

Federal Public Defender for the Western District of North

Carolina, argued the cause and filed the briefs for appellant.

Reuven Dashevsky, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Matthew M.

Graves, U.S. Attorney, and Chrisellen R. Kolb, Nicholas P.

Coleman, and Patrick Holvey, Assistant U.S. Attorneys.

Before: WALKER and PAN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PAN.

PAN, Circuit Judge: James Little pleaded guilty to one

count of Parading, Demonstrating, or Picketing in a Capitol

Building, in violation of 40 U.S.C. § 5104(e)(2)(G). The

district court sentenced him to 60 days’ imprisonment,

followed by three years of probation. In a prior appeal, Little

successfully challenged that sentence. We agreed with him that

the applicable statutes did not authorize a “split sentence” that

included both imprisonment and probation for the commission

of a single violation. See United States v. Little, 78 F.4th 453

(D.C. Cir. 2023). We therefore vacated his sentence and

remanded his case to the district court. The district court

resentenced Little to 150 days in prison, with credit for the 60

days in prison he had already served, and an additional credit

of 30 days for the time he had spent on probation. Little claims

that his new sentence violates the Double Jeopardy Clause. We

disagree and affirm.

On January 6, 2021, James Little took part in the riot at the

United States Capitol. He roamed the third-floor Senate

Gallery, taking photographs and sending messages to his

family and friends. In those messages, he said things like: “We

just took over the Capital [sic],” and “We are stopping treason!

Stealing elections is treason! We’re not going to take it

anymore!” J.A. 33. Little ultimately pleaded guilty to one

count of Parading, Demonstrating, or Picketing in a Capitol

Building, in violation of 40 U.S.C. § 5104(e)(2)(G). That

crime carries a maximum punishment of six months in prison

or five years of probation. 40 U.S.C. § 5109(b); 18 U.S.C.

§ 3561(c)(2). The district court sentenced Little to 60 days in

prison followed by three years of probation. The court

reasoned that “some term of imprisonment is essential in these

cases now to reflect the seriousness of the offense, to promote

respect for the law and to provide just punishment for the

offense.” J.A. 149. In addition, because the court did “not have

confidence that the same [conduct] would not happen in the

next election cycle,” it imposed a probation term so that Little

“[would] not be without court supervision during the next

election cycle.” J.A. 150.

Little appealed his sentence, arguing that the district court

erred by imposing both a term of imprisonment and a term of

probation. We agreed with Little that the relevant statutes —

18 U.S.C. §§ 3551(b) and 3561 — authorize a sentence of

either probation or imprisonment for a single violation, but not

both. United States v. Little (Little I), 78 F.4th 453, 454–56

(D.C. Cir. 2023).1 We thus vacated Little’s sentence and

remanded his case to the district court for resentencing. Id. at

461.

By the time the case was remanded, Little was in the midst

of serving the originally imposed sentence: He had finished

serving the term of imprisonment and was in the middle of his

We reasoned that the “menu” of sentencing options under 18

U.S.C. § 3551(b) authorizes “(1) a term of probation”; “(2) a fine”;

“or” “(3) a term of imprisonment” (emphasis added). The statute

further allows the imposition of a fine “in addition to any other

sentence,” but makes no other exceptions to allow for more than one

punishment. Id. § 3551(b). The text and structure of § 3551(b) thus

“show that probation and imprisonment may not be imposed as a

single sentence.” Little I, 78 F.4th at 455. Moreover, we interpreted

18 U.S.C. § 3561(a)(3) to preclude a sentence of imprisonment and

probation for a single violation. Id. at 456.

time on probation. Little filed a motion to amend the judgment,

asking the district court to forgo resentencing and to terminate

his probation. He noted that 18 U.S.C. §§ 3551(b) and 3561

authorized a sentence of either imprisonment or probation, yet

he had been sentenced to both. Relying on two Supreme Court

cases — Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and In

re Bradley, 318 U.S. 50 (1943) — he argued that imposing

further punishment on him under those circumstances would

violate the Double Jeopardy Clause because he had fully

satisfied one of the alternative punishments authorized by

statute.

The district court denied Little’s motion, ruling that our

mandate required Little to be resentenced. See J.A. 281 (noting

that the mandate “vacate[d] Little’s sentence and remand[ed]

to the district court for resentencing” (quoting Little I, 78 F.4th

at 461)). The district court also rejected Little’s argument that

the Double Jeopardy Clause barred the imposition of additional

punishment. The court concluded that a later Supreme Court

case — Jones v. Thomas, 491 U.S. 376 (1989) — requires

courts to read the Lange and Bradley cases narrowly. Relying

on Jones and North Carolina v. Pearce, 395 U.S. 711 (1969),

the district court held that resentencing Little would be lawful

“as long as [the court] credits the time already served in prison

or probation against any new punishment.” J.A. 283.

The district court also noted that “an increase in a

sentence” does not violate the Double Jeopardy Clause unless

the defendant had a “legitimate” “expectation of finality” in the

original sentence. J.A. 285. The court concluded that Little

lacked such a legitimate expectation of finality because Little

chose to appeal the original sentence, and because that sentence

was, in any event, illegal.

The district court then resentenced Little to 150 days of

imprisonment. To account for the time that Little had served

on the original sentence, the court gave Little credit for the 60

days he spent in prison, as well as an additional credit of 30

days for the 18 months that he had spent on probation. In

arriving at the 30-day credit, the court opined that Little’s

probation “should count for relatively little” because he “spent

essentially no time in compliance with the terms and conditions

of his probation.” J.A. 309 (emphasis in original). After noting

Little’s failure to pay restitution, his lack of remorse, and his

refusal to take responsibility for his actions, the court

concluded that “too great a sentence reduction” would fail to

satisfy the “purposes of sentencing,” including the need for a

sentence “to reflect the seriousness of the offense.” J.A. 310–

11. Ultimately, Little’s new sentence required him to spend an

additional 60 days in prison. After the district court

pronounced its sentence, Little argued for a different credit for

his probation time, requesting “a 5 to 1 ratio” between the time

spent on probation and the time to be subtracted from his

sentence. J.A. 346. But Little did not object to the general

practice of crediting time on probation against time spent in

prison.

Little now appeals his resentencing. We have jurisdiction

under 18 U.S.C. § 3742.

II.

The Double Jeopardy Clause “protects against multiple

punishments for the same offense.” North Carolina v. Pearce,

395 U.S. 711, 717 (1969). Little argues that his new sentence

violates the Double Jeopardy Clause because the district court

imposed additional punishment after Little had already

completed the term of incarceration that was part of his illegal

split sentence. He also contends that he had a legitimate

expectation of finality in his original sentence. Both of Little’s

arguments are unpersuasive.

As a threshold matter, the government argues that we

should not consider Little’s double jeopardy argument because

we already decided in Little’s previous appeal that additional

jail time could be imposed at his resentencing. We disagree.

Under the law-of-the-case doctrine, “decisions rendered

on the first appeal should not be revisited on later trips to the

appellate court.” LaShawn A. v. Barry, 87 F.3d 1389, 1393

(D.C. Cir. 1996) (en banc). The doctrine encompasses

“questions decided explicitly or by necessary implication.” Id.

at 1394. That principle is not applicable here because Little’s

double jeopardy claim was not briefed, argued, or resolved in

the prior appeal.

Little I considered and decided only one issue: whether the

district court could lawfully impose a split sentence of

probation and imprisonment for a single offense of conviction

under 18 U.S.C. §§ 3551(b) and 3561. Little I, 78 F.4th at 454.

To be sure, Little asked us in that appeal “to reverse and remand

with instructions that [he] be immediately discharged from

probation and that an amended judgment be issued reflecting

no probationary term.” Brief of Appellant, Little I, 78 F.4th

453 (D.C. Cir. 2023) (No. 22-3018), 2022 WL 3010141, at *40.

But neither party asked us to consider how the Double Jeopardy

Clause would affect a resentencing. We denied Little’s

requested remedy and instead “vacat[ed] Little’s sentence and

remand[ed] to the district court for resentencing.” Little I, 78

F.4th at 461. Our opinion did not address the implications of

the Double Jeopardy Clause, and we are not bound by a

footnote in the dissenting opinion that touched upon that issue.

See id. at 469 n.3 (Wilkins, J., dissenting) (noting that “it

appears” that the district court “could impose” “a longer prison

or probationary term” upon resentencing).

Because Little I did not decide any double jeopardy issue

“explicitly or by necessary implication,” LaShawn A., 87 F.3d

at 1394, Little may raise a double jeopardy claim in the instant

appeal.

Little renews his argument that Lange and Bradley barred

the district court from imposing further punishment when he

was resentenced because the original sentence was an illegal

split sentence, and Little had fully served one of the alternative

sentences permitted by statute. Little raises a question of law

that we review de novo. See United States v. McCallum, 721

F.3d 706, 709 (D.C. Cir. 2013).

We begin with some basic principles that Little does not

contest. It is well established that the Double Jeopardy

Clause’s protection “against multiple punishments for the same

offense” does not preclude retrial and resentencing after a

defendant successfully appeals his or her conviction. Pearce,

395 U.S. at 717. In such a situation, the protection against

multiple punishments “requires that punishment already

exacted must be fully ‘credited’ in imposing sentence upon a

new conviction for the same offense.” Id. at 718–19. The court

may even “impose upon reconviction a longer prison sentence

than the defendant originally received,” so long as the years

already spent in prison are “returned” to the defendant “by

subtracting them from whatever new sentence is imposed.” Id.

at 719; see also Hayes v. United States, 249 F.2d 516, 517

(D.C. Cir. 1957) (“[I]f the sentence were invalid and defendant

successfully attacked it, he could be validly resentenced though

the resentence increased the punishment.”).

Although Little acknowledges that general rule, he argues

that his case falls within an exception established by Lange and

Bradley. He contends that those cases compel the vacatur of

any additional sentence when a defendant already has served

one of the alternative sentences permitted by statute.

In Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), the

defendant was convicted of stealing U.S. Post Office mail bags.

He was sentenced to both the statutory maximum term of one

year of imprisonment and the maximum fine of $200. See id.

at 164. The defendant paid the fine in full and began serving

his sentence of imprisonment. Id. Five days into his

imprisonment, a reviewing court vacated the judgment, holding

that the governing statute allowed a sentence of imprisonment

or a fine, but not both. The sentencing court then imposed a

sentence of one year of imprisonment and no fine. Id. The

Supreme Court discharged the defendant, holding that the

resentencing violated double jeopardy principles. Id. at 167–

68, 175. In relevant part, the Court noted: “[W]hen the prisoner

. . . had fully suffered one of the alternative punishments to

which alone the law subjected him, the power of the court to

punish further was gone.” Id. at 176. The Court’s reference to

the defendant’s “full[]” service of “one of the alternative

punishments” appeared to place significance on the

defendant’s payment of the maximum allowable fine — i.e.,

“fully” serving one of the permissible sentences apparently

precluded any additional punishment. See id.

But the Supreme Court seemed to retreat from that

reasoning in In re Bradley, 318 U.S. 50 (1942). There, the

sentencing court imposed both a six-month sentence of

imprisonment and a $500 fine for the defendant’s crime of

contempt, despite the applicable statute authorizing only a fine

or imprisonment. See Bradley, 318 U.S. at 51. The same day

that the court imposed the dual sentence, it realized its mistake

and sua sponte sought to amend the sentence by reimbursing

the fine and requiring only the six months’ imprisonment. See

id. at 51–52. The defendant refused to accept the refund and

appealed his sentence. Id. at 52. Unlike in Lange, the relevant

statute in Bradley did not prescribe a maximum term of

imprisonment or a maximum fine. See 28 U.S.C. § 385 (1940).

Still, the Supreme Court relied on Lange to order the defendant

discharged from custody, reasoning that an “amendment of the

sentence could not avoid the satisfaction of the judgment.”

Bradley, 318 U.S. at 52–53. The Court held that “[s]ince one

valid alternative provision of the original sentence has been

satisfied, the petitioner is entitled to be freed of further

restraint.” Id.

Little relies on Bradley to argue that he too must be

discharged from any further punishment. Similar to the

defendant in Bradley, Little was originally sentenced to a term

of imprisonment and probation, even though the applicable

statutes authorized a sentence of either probation or

imprisonment, but not both. See Little I, 78 F.4th at 454–56.

Like Bradley, Little did not receive the statutory maximum, but

he had fully satisfied “one valid alternative provision of the

original sentence” — the term of incarceration — by the time

his illegal sentence was vacated. Bradley, 318 U.S. at 52.

Little thus argues that, like Bradley, he is entitled to be freed

from further restraint.

The problem for Little is that both Lange and Bradley were

interpreted narrowly by a more recent Supreme Court case,

Jones v. Thomas, 491 U.S. 376 (1989). Jones clarified that a

key fact in Lange was that the defendant had completed a

statutory maximum sentence; and a key fact in Bradley was that

the defendant’s alternative sentences were a fine and

imprisonment, and a fine cannot be credited against a prison

sentence. Those important distinctions foreclose Little’s

double jeopardy claim.

In Jones, the sentencing court imposed two consecutive

sentences of imprisonment — one for felony murder and the

other for the underlying felony — despite state law not

authorizing separate sentences in that circumstance. 491 U.S.

at 378–79. The defendant argued that “the Double Jeopardy

Clause requires immediate release for the prisoner who has

satisfied the shorter of two consecutive sentences that could not

both lawfully be imposed.” Id. at 382. In rejecting that

argument and upholding Jones’s resentencing, the Court first

distinguished Lange, in which the defendant had already

completed the statutory maximum punishment, so that any

additional punishment “would obviously have exceeded that

authorized by the legislature.” Id. at 383. The Court explained

that “Lange . . . stands for the uncontested proposition that the

Double Jeopardy Clause prohibits punishment in excess of that

authorized by the legislature.” Id.

The Jones Court next distinguished Bradley, in which the

two sentences imposed “were of a different type, fine and

imprisonment.” 491 U.S. at 384. While “it would not have

been possible to ‘credit’ a fine against time in prison,” the same

was not true of the two prison sentences in Jones because

“crediting time served under one sentence against the term of

another has long been an accepted practice.” Id. The Jones

Court further noted that it did “not think the law compels

application of Bradley beyond its facts.” Id. at 386. Thus, the

Court upheld the resentencing in Jones because the sentencing

court could credit the time that the defendant had already

served against any future punishment. Id. at 384. In other

words, where that defendant was subjected to two sentences

10a

when only one was permissible, and he had already fully served

one of the sentences, he still could be resentenced without

violating the Double Jeopardy Clause because the time that he

had served on the original sentence could be credited against

his new sentence. That holding is consistent with the wellestablished double jeopardy principles that generally allow a

full resentencing after a successful appeal. See Pearce, 395

U.S. at 718–19.

Accordingly, Jones precludes Little’s reliance on Lange

and Bradley. Little’s case is easily distinguished from Lange

because neither Little’s original sentence (of 60 days’

imprisonment and three years’ probation) nor his new sentence

(of 150 days’ imprisonment) exceeded the statutory maximum

of six months’ imprisonment or five years of probation. See 40

U.S.C. § 5109(b); 18 U.S.C. § 3561(c)(2). Moreover, Bradley

is inapposite because Little’s sentence involved incarceration

and probation — not incarceration and a fine — and the district

court gave Little credit for the time that he spent on probation.

When Little was resentenced to 150 days’ incarceration, his

prison time was reduced to reflect a credit of 60 days for the

time that he had already spent in prison and a credit of 30 days

for the 18 months he had served on probation. Thus, under

Jones and Pearce, the resentencing was permissible under the

Double Jeopardy Clause because the time Little served on the

original sentence was “returned” to him when it was

“subtract[ed] . . . from whatever new sentence [was] imposed.”

Pearce, 395 U.S. at 719.

Little’s arguments to the contrary are unconvincing. First,

he asserts that when he was erroneously sentenced to probation

and imprisonment, despite the statute allowing only one of

those options, his punishment was “in excess of that authorized

11a

by the legislature.” Little Br. 17 (quoting Jones, 491 U.S. at

383). But saying that is so does not make it so. The

determinative fact in Lange was that the defendant had already

paid the statutory maximum fine and no more punishment was

permissible under the statute. Because he then was subjected

to a resentencing that imposed time in prison, the additional

punishment plainly was unlawful. See Lange, 85 U.S. at 175;

Jones, 491 U.S. at 382–83. That is not Little’s situation.

Next, Little argues that time on probation cannot be

credited against a sentence of imprisonment. See Little Br. 26.

Alternatively, he asks us to “hold that ‘credit’ for [d]ouble

[j]eopardy purposes” requires a “1:1 ratio” — i.e., that he

should receive a day’s worth of credit for every day that he

spent on probation. Id. But Little did not raise those arguments

before the district court, and he therefore forfeited them.

“Basic in our criminal procedure is the rule that” a

defendant “must, at the time the ruling or order of the court is

made or sought, make known to the court the action which he

desires the court to take or his objection to the action of the

court and the grounds therefor.” United States v. Lewis, 433

F.2d 1146, 1152 (D.C. Cir. 1970) (cleaned up); see also Fed.

R. Crim. P. 51(b). Neither Little’s written nor oral advocacy

alerted the district court to any argument that probation cannot

be credited against imprisonment, or that a 1:1 crediting ratio

is required.

In his papers in support of his motion to terminate his

probation, Little argued that the “still-binding precedent” of

Lange and Bradley “dictates” the outcome in his “single-count,

alternative-options case.” J.A. 269–70. Although he quoted

relevant language in Jones, he argued only that Jones

“reaffirmed” “the continuing viability of Lange and Bradley”

for cases concerning “a single count of conviction.” J.A. 190,

12a

194.

The government’s opposition to Little’s motion

specifically argued that, unlike the fine in Bradley, Little’s

sentence of probation could be credited against a future term of

imprisonment. The government also argued that the crediting

ratio need not be a day-to-day offset. Little’s reply did not

respond to those arguments. Then, at sentencing, Little’s only

objection was “to the ratio that was used” because he

“believe[d]” “a 5 to 1 ratio” was “a better ratio than the 18 to 1

that the [c]ourt used.” J.A. 346. Because Little never disputed

the availability of crediting and merely requested a different

crediting ratio, Little “failed to put the district court on notice

of the argument[s] he now raises” — i.e., that crediting is not

possible, or that a 1:1 ratio is required. United States v.

Mohammed, 89 F.4th 158, 163 (D.C. Cir. 2023).2

Little says that, even if he did not alert the district court to

the specific arguments he advances on appeal, his “argument

about crediting” is preserved as “simply a different theory in

support of the double jeopardy claim.” Oral Arg. 12:14–12:30.

To make that argument, Little relies on Yee v. City of

Escondido, 503 U.S. 519 (1992), in which the Supreme Court

held that “[o]nce a federal claim is properly presented, a party

can make any argument in support of that claim; parties are not

limited to the precise arguments they made below.” Id. at 534.

Although the cited statement in Yee is broad, our

subsequent cases have made clear that Yee’s holding is not as

sweeping as Little would like it to be. See Koch v. Cox, 489

F.3d 384, 391 (D.C. Cir. 2007) (citing Yee to allow a party to

“adduce[] additional support for his side of an issue upon which

the district court did rule, much like citing a case for the first

time on appeal”); Teva Pharms., USA, Inc. v. Leavitt, 548 F.3d

103, 105 (D.C. Cir. 2008) (citing Yee to allow a party to “refine

On appeal, Little does not renew his request for a 5:1 crediting

ratio.

13a

and clarify its analysis in light of the district court’s ruling”);

Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, 815

F.3d 1, 11–12 (D.C. Cir. 2016) (citing Yee and saying we

should not “reach the theory raised on appeal” if it “would

require this court to recast appellants’ position in the district

court” (cleaned up)).

Yee and its progeny clearly did not displace the general

rule in criminal cases that a defendant must “make known” to

the district court “his objection to the action of the court and

the grounds therefor.” Lewis, 433 F.2d at 1152. In United

States v. Stevens, 105 F.4th 473 (D.C. Cir. 2024), we rejected

a similar request to treat a defendant’s new argument as

preserved under Yee. In that case, the district court had applied

the Sentencing Guideline for aggravated assault, defined as

“felonious assault” involving “an intent to commit another

felony.” Id. at 476 (quoting U.S.S.G. § 2A2.2 cmt. n.1). The

defendant had argued before the district court that the

Guideline was inapplicable because he did not commit the

relevant felony with intent to commit “another felony.” Id. at

477 (emphasis in original). On appeal, the defendant added a

new theory: He claimed that he was not convicted of

“felonious assault” and only aided and abetted that offense. Id.

at 479. Even though the new argument challenged the same

Guideline addressed by the district court, we rejected the

defendant’s argument under Yee that he “simply ma[de] new

arguments in support of a preserved claim.” Id. at 479 n.10.

Instead, we held that the defendant “made two distinct claims

challenging different elements of the ‘aggravated assault’

commentary definition,” and reviewed the new argument only

for plain error. Id.

This case requires the same result. Little argued before the

district court that he should be discharged from further

punishment because Bradley applies to all “single-count,

14a

alternative-options case[s].” J.A. 270. That claim differs

significantly from the arguments that he now makes,

challenging the practice of crediting probation time against jail

time and the crediting ratio that was applied at his resentencing.

Little thus makes “distinct claims” on appeal that challenge

“different” aspects of the Bradley decision. See Stevens, 105

F.4th at 479 n.10. His specific argument invoking Bradley

before the district court did not preserve every possible

argument that flows from that case or from the Double

Jeopardy Clause.

Because Little’s arguments were “not raise[d] before the

district court,” we review them “only for plain error.” United

States v. Long, 997 F.3d 342, 353 (D.C. Cir. 2021). “Under

plain error review, we may reverse only if (1) the district court

committed error; (2) the error is plain; (3) the error affects the

defendant’s substantial rights; and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (cleaned up). Little’s arguments fail

because the alleged errors he identifies were not “plain” — i.e.,

there was no “controlling precedent on the issue or some other

absolutely clear legal norm.” United States v. Pyles, 862 F.3d

82, 88 (D.C. Cir. 2017) (cleaned up).

To begin, Little points to no Supreme Court case nor any

case from this circuit that addresses whether time served on

probation can be credited against time spent in prison. He

therefore fails to identify any “controlling precedent on the

issue.” Pyles, 862 F.3d at 88.

To the extent other courts have addressed the crediting

issue, the cases foreclose any claim of a “clear legal norm” that

forbids crediting probation time against sentences of

imprisonment. Pyles, 862 F.3d at 88. To the contrary, other

courts have endorsed that practice. For example, in United

15a

States v. Martin, 363 F.3d 25 (1st Cir. 2004), the court held that

the “impossibility of crediting [the sentences in Bradley] does

not apply to the alternative sentences of probation, including

home detention, and imprisonment.” Id. at 38. Because

“probation and imprisonment . . . each restrict[] a defendant’s

liberty (albeit to varying degrees) over a specific period of

time,” the court reasoned, the two “different types of

sentences” “are sufficient[ly similar] to allow crediting of

probation against imprisonment.” Id.; see also United States v.

Carpenter, 320 F.3d 334, 344–45 & n.10, 346 (2d Cir. 2003)

(instructing the district court to credit home detention already

served against future imprisonment); United States v. Miller,

991 F.2d 552, 554 (9th Cir. 1993) (same); United States v.

Lominac, 144 F.3d 309, 318 (4th Cir. 1998) (crediting time on

supervised release against future imprisonment). Thus, Little

has failed to establish that the district court “plainly” erred —

or erred at all — when it credited the time he spent on probation

against his new sentence of imprisonment.

Nor was it plain error for the district court to employ a factspecific crediting ratio. Little does not cite any “controlling

precedent on the issue” of how to credit probation against

imprisonment, Pyles, 862 F.3d at 88, and he concedes that there

is “disagreement on the methodology for providing credit,”

Little Br. 25. That alone precludes him from demonstrating

that there is an “absolutely clear legal norm” that supports a 1:1

crediting ratio. Pyles, 862 F.3d at 88.

Little pulls his suggested 1:1 ratio from an Iowa Supreme

Court case. See State v. Jepsen, 907 N.W.2d 495, 504 (Iowa

2018). But ample precedent supports not applying a 1:1 ratio

when crediting probation time. For example, in Martin, the

court said that “fully crediting probation against a subsequent

sentence of imprisonment does not require a day-to-day

offset,” observing that “time served in home detention is

16a

normally far less onerous than imprisonment.” 363 F.3d at 39

(cleaned up); see also Carpenter, 320 F.3d at 346 (noting the

court “would be puzzled if, on remand, the district court

reduced Carpenter’s term of imprisonment by more than half

the time he spent in home detention,” but declining to hold that

“a reduction of greater magnitude would be factually

insupportable, or a lesser reduction inappropriate”); Miller, 991

F.2d at 554 (noting a 1:1 ratio would not be inappropriate, but

directing the district court to balance the § 3553 factors when

deciding on its ratio); United States v. Derbes, 2004 WL

2203478, at *2 n.6 (D. Mass. Oct. 1, 2004) (treating “three days

of home detention and five days of probation as the equivalents

of a day in custody”). Because there is no controlling precedent

in this jurisdiction nor any clearly accepted rule for

determining crediting ratios, the district court’s decision to

conduct a fact-specific inquiry and to apply a 30-day credit for

Little’s 18 months of probation time was not plainly erroneous.

Little argues that the district court was barred from

increasing his sentence because he had a legitimate expectation

of finality in the original sentence. Again, we disagree.

The Supreme Court has recognized that, under the Double

Jeopardy Clause, defendants have “legitimate expectation[s] of

finality” in their sentences. Jones, 491 U.S. at 385; see United

States v. DiFrancesco, 449 U.S. 117, 132–38 (1980). That

constitutionally protected interest allows defendants “to be free

from being compelled to live in a continuing state of anxiety

and insecurity.” United States v. Fogel, 829 F.2d 77, 88 (D.C.

Cir. 1987) (cleaned up). But courts “may permissibly increase

a [defendant’s] sentence” if “there is some circumstance which

undermines the legitimacy of that expectation.” Id. at 87.

17a

Here, Little may not claim an expectation of finality in a

sentence that he voluntarily appealed. Little does not dispute

that a defendant who successfully attacks a conviction or

sentence may generally be resentenced to increased

punishment. See Little Br. 33–35; see also Pearce, 395 U.S. at

719–20 (“Long-established constitutional doctrine makes clear

that, beyond the requirement [that punishment already exacted

must be fully ‘credited’], the guarantee against double jeopardy

imposes no restrictions upon the length of a sentence imposed

upon reconviction.”); Hayes, 249 F.2d at 517 (“[I]f the

sentence were invalid and defendant successfully attacked it,

he could be validly resentenced though the resentence

increased the punishment.”); Murphy v. Massachusetts, 177

U.S. 155, 158 (1900) (“[I]t is well settled that a convicted

person cannot by his own act avoid the jeopardy in which he

stands, and then assert it as a bar to subsequent jeopardy.”).

Because Little appealed his sentence and sought to have it

amended or vacated, he “is held to have waived his protection

against double jeopardy.” Hayes, 249 F.2d at 517.

Little’s reliance on United States v. Fogel, 829 F.2d 77

(D.C. Cir. 1987), is misplaced. That case stands for the

proposition that a court may not sua sponte change a

defendant’s final sentence; it has nothing to do with defendants

who themselves seek to alter their sentences by filing appeals.

In Fogel, the sentencing court increased Fogel’s sentence after

realizing it “made a mistake” in its original pronouncement.

829 F.2d at 80–81. We held that a court cannot, on its own

initiative, increase a defendant’s sentence because “after a

defendant is sentenced, he is entitled to have a legitimate

expectation that the district court has reviewed all of the

relevant circumstances, and has finally determined the severity

of the punishment that should be imposed.” Id. at 89. By

changing Fogel’s sentence without warning, the court

impermissibly “compelled” him to “live in a continuing state

18a

of anxiety and insecurity.” Id. at 88. Little, by contrast, chose

to appeal his sentence — he thereby precipitated and consented

to any state of uncertainty.

Nor are we persuaded by Little’s argument that he

challenged only a defect in his sentence (i.e., “that the statutory

scheme did not authorize both imprisonment and probation”),

and therefore did not waive his legitimate expectation of

finality in the length of his sentence. Little Br. 35 (emphasis in

original). We are unaware of any precedent that supports

carving out special treatment for certain types of legal

arguments challenging a sentence.

When a defendant

successfully challenges his or her sentence or conviction, the

prior sentence is “wholly nullified and the slate wiped clean.”

Pearce, 395 U.S. at 721. With that clean slate, the district court

is permitted on resentencing “to impose whatever sentence may

be legally authorized, whether or not it is greater than the

sentence [previously] imposed.” Id. at 720.

That is especially appropriate when the original sentence

included interdependent components. In United States v.

Townsend, 178 F.3d 558 (D.C. Cir. 1999), we held that a

defendant sentenced on multiple counts of conviction “can

have no legitimate expectation of finality regarding the

sentence previously allocated to certain counts while

simultaneously challenging his sentence on other counts of the

package.” Id. at 570. That principle recognizes the “strong

likelihood that the district court [] craft[ed] a disposition in

which the sentences on the various counts form[ed] part of an

overall plan, and that if some counts are vacated, the judge

should be free to review the efficacy of what remains in light

of the original plan.” Id. at 567 (cleaned up); see also United

States v. Morris, 116 F.3d 501, 505 (D.C. Cir. 1997) (holding

defendants “could not — at the moment of launching their

challenges [against one sentence] — have entertained any

19a

reasonable expectation in the finality of their [non-challenged]

sentences” “given the interdependency” of the sentencing

package).

Little’s split sentence is analogous. When pronouncing

Little’s original sentence, the district court stated: “I believe

some term of imprisonment is essential in these cases now to

reflect the seriousness of the offense, to promote respect for the

law and to provide just punishment for the offense.” J.A. 149.

Then, because “the [c]ourt [did] not have confidence that the

same [conduct] would not happen in the next election cycle,”

it included a probationary term so that Little “[would] not be

without court supervision during the next election cycle.” J.A.

150. The district court’s decision to impose a short prison

sentence was intertwined with its decision to impose a longer

term of probation. After we made clear that a term of

imprisonment and a term of probation could not both be

imposed, the district court was allowed to “review the efficacy

of what remains [of the sentence] in light of the original plan.”

Townsend, 178 F.3d at 567; accord United States v. Versaglio,

85 F.3d 943, 949 (2d Cir. 1996) (setting aside a term of

imprisonment in a split-sentence case but remanding for the

sentencing court to “consider[] whether to make an upward

adjustment in the amount of the fine”).3

Little argues for the first time in his reply brief that the

government was required to cross-appeal to provide Little with

notice that pursuit of his own appeal would expose him to a higher

sentence. See Little Reply Br. 5. Putting aside the dubious logic of

that argument, it is forfeited. See Fore River Residents Against the

Compressor Station v. FERC, 77 F.4th 882, 889 (D.C. Cir. 2023)

(“Arguments raised for the first time in a reply brief are forfeited.”).

20a

We conclude that the Double Jeopardy Clause was not

violated when Little was subjected to additional punishment

upon his resentencing. The district court properly exercised its

discretion to impose a sentence that accounted for all relevant

sentencing factors. The new sentence was lawful because the

district court provided credit for the time that Little had served

on the original sentence — both in prison and on probation —

and neither the original sentence nor the new sentence

exceeded the statutory maximum. We further conclude that the

district court did not plainly err when it provided a 30-day

credit to account for the 18 months that Little spent on

probation; and that Little had no legitimate expectation of

finality in his original sentence because he appealed that

sentence. We therefore affirm the judgment of the district

court.

So ordered.

21a

Case 1:21-cr-00315-RCL Document 69 Filed 01/17/24 Page 1 of 13

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Case No. 1:21-cr-315-RCL

JAMES LITTLE,

Defendant.

MEMORANDUM AND ORDER

For his involvement in the January 6, 2021 attack on the United States Capitol, Defendant

James Little pleaded guilty to a petty offense. This Court imposed a sentence of imprisonment,

followed by probation. On appeal, the D.C. Circuit held that Little’s “split sentence” was unlawful.

It therefore “vacate[d] Little’s sentence and remand[ed] to the district court for resentencing.”

United States v. Little, 78 F.4th 453, 461 (D.C. Cir. 2023).

Now, Little asks the Court to disregard the D.C. Circuit’s directive to resentence him and

to instead simply let him off probation. Yet the Court is bound by the mandate rule to follow the

instructions from the D.C. Circuit. The Court will thus DENY Little’s motion and proceed to

resentencing as scheduled on January 25, 2024. Little’s double jeopardy objection to resentencing

is squarely foreclosed by governing precedent, so when the Court resentences Little, it may

lawfully impose an additional term of imprisonment or probation, if it chooses to do so.

BACKGROUND

1. Little’s Initial Sentence

The Court previously summarized Little’s contribution to the events of January 6, 2021:

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

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Case 1:21-cr-00315-RCL Document 69 Filed 01/17/24 Page 2 of 13

a full-fledged assault. While the immediate threat may have subsided, the damage

from January 6 persists. Rioters interrupted the certification of the 2020 Electoral

College vote count, injured more than one hundred law enforcement officers, and

caused more than a million dollars of property damage to the U.S. Capitol. Some

of the rioters—now defendants in criminal cases—directly contributed to this

violence by assaulting members of law enforcement or by planning, preparing, and

facilitating this violence. Others, like Little here, did not directly assault officers.

But even Little and those who engaged in this “lesser” criminal conduct were an

essential component to the harm. Law-enforcement officers were overwhelmed by

the sheer swath of criminality. And those who engaged in violence that day were

able to do so because they found safety in numbers.

United States v. Little, 590 F. Supp. 3d 340, 342 (D.D.C. 2022), vacated and remanded, 78 F.4th

453 (D.C. Cir. 2023).

On November 16, 2021, Little pleaded guilty to Parading, Demonstrating, or Picketing in

a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G). See Plea Agr., ECF No. 25. Little

admitted to entering the United States Capitol, despite knowing that he lacked permission, and

then parading, demonstrating, and/or picketing within the building. Statement of Offense, ECF

No. 26, 4.

On March 14, 2022, the Court sentenced Little to a “split sentence,” meaning “a term of

imprisonment followed by a term of probation.” Little, 590 F. Supp. 3d. at 343. The Court

recognized that because the statutory maximum term of imprisonment for Little’s offense was six

months, federal law classifies the crime as a petty offense. Id. (citing 40 U.S.C. § 5109(b), 18

U.S.C. § 3559(a)(7), and 18 U.S.C. § 19). But it held that a split sentence was legally permissible

for a defendant convicted of a petty offense. It also concluded that a split sentence was warranted

in this case, because “[s]ome term of imprisonment may serve sentencing’s retributive goals . . .

[b]ut only a longer-term period of probation is adequate to ensure that Little will not become an

active participant in another riot.” Little, 590 F. Supp. 3d at 344. It therefore sentenced Little to

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Case 1:21-cr-00315-RCL Document 69 Filed 01/17/24 Page 3 of 13

60 days’ imprisonment, 36 months’ probation, $500 in restitution, and $10 in special assessment.

Id. at 351.

2. Little’s Appeal

On appeal, Little challenged his sentence, arguing that a split sentence for a single

conviction for a petty offense was illegal. Br. for Appellant *40, United States v. Little, 78 F.4th

453 (D.C. Cir. 2023) (No. 22-3018). He argued that because he had “already served his entire

term of imprisonment, the proper remedy is to reverse and remand with instructions that Little be

immediately discharged from probation and that an amended judgment be issued reflecting no

probationary term.” Id.

A divided panel of the D.C. Circuit agreed with Little’s substantive argument, holding that

under 18 U.S.C. § 3561(a)(3), a court could impose imprisonment or probation but not both. Little,

78 F.4th at 454. However, it rejected Little’s proposed remedy of instructing the district court to

discharge Little from probation and issue an amended judgment reflecting no term of probation.

Instead, the court of appeals “vacate[d] Little’s sentence and remand[ed] to the district court for

resentencing.” Id. at 461. Writing in dissent, Judge Wilkins stated that “[f]ollowing 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.” Id. at 469 n.3 (Wilkins, J., dissenting) (citing Davenport v. United

States, 353 F.2d 882, 884 (D.C. Cir. 1965)).

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Case 1:21-cr-00315-RCL Document 69 Filed 01/17/24 Page 4 of 13

The Present Dispute

Little completed his sixty days of imprisonment on July 8, 2022, and is currently on

probation. See Gov. Opp’n 4. According to the Government, he has failed to pay either the $500

restitution or the $10 special assessment ordered by the Court. Id.

On November 9, 2023, the Court received the mandate from the D.C. Circuit. ECF No.

57. Little moved for the Court to amend the judgment to remove the term of probation, to terminate

the term of probation, or to do both. Def. Mot., ECF No. 58. The Government initially moved to

hold Little’s motion in abeyance pending the D.C. Circuit’s decision in United States v. Caplinger,

No. 22-3057, ECF No. 61, but then withdrew that motion as filed in error, ECF No. 63. The

Government then filed an opposition to Little’s motion. See Gov. Opp’n, ECF No. 65. Little filed

a reply. See Def. Reply, ECF No. 66.

Little’s motion is now ripe for review.

II.

DISCUSSION

Given the mandate from the D.C. Circuit, the Court must resentence Little. In doing so,

double jeopardy principles do not prevent the Court from imposing additional punishment, so long

as the Court credits the punishment already served by Little against any further penalty. 1

Little also argues that even if double jeopardy does not require termination of probation, the Court should release

him from probation because “[h]e has been compliant with the terms of probation as far as counsel is aware, and

presents no future danger to the community.” Def. Mot. 10. He also contends that resentencing him to time served

without a hearing would be in compliance with the D.C. Circuit’s mandate. Def. Reply at 4. However, whenever the

Court imposes a sentence, it must carefully consider the factors provided in 18 U.S.C. § 3553(a). The Court will not

short-circuit the usual process for considering those factors by deciding the issue at this stage.

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Case 1:21-cr-00315-RCL Document 69 Filed 01/17/24 Page 5 of 13

A. Under the Mandate Rule, the Court Must Resentence Little

The D.C. Circuit did not leave Little’s remedy as an open question. Instead, it “vacate[d]

Little’s sentence and remand[ed] to the district court for resentencing.” Little, 78 F.4th at 461.

The mandate rule requires the Court to obey that directive by resentencing Little.

The mandate rule means a district court must do as it was told by the court of appeals.

“Under the mandate rule, ‘an inferior court has no power or authority to deviate from the mandate

issued by an appellate court.’” Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 596 (D.C.

Cir. 2001) (quoting Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306 (1948)); see also 28 U.S.C.

§ 2106 (“The Supreme Court or any other court of appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for

review, and may remand the cause and direct the entry of such appropriate judgment, decree, or

order, or require such further proceedings to be had as may be just under the circumstances.”).

Therefore, “[a] trial court is without power to do anything which is contrary to either the letter or

spirit of the mandate construed in the light of the opinion of [the] court deciding the case.”

Yablonski v. United Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir. 1971) (internal

quotation marks and citation omitted).2

Little’s argument that this Court may disregard the mandate fails for two reasons. He

contends that the Court cannot resentence him as instructed because imposing any additional

punishment would violate double jeopardy. Def. Mot. 1–2. The first problem with this approach

is that the Court does not agree that double jeopardy precludes resentencing in this case, for the

The mandate rule applies to criminal sentencing appeals. See 18 U.S.C. § 3742(g) (“A district court to which a case

is remanded pursuant to [§ 3742(f)(1), which permits a defendant to appeal a sentence “imposed in violation of law,”

or (f)(2)] shall resentence a defendant in accordance with [§ 3553] and with such instructions as may have been given

by the court of appeals . . . .”).

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reasons stated below. But even if the Court were inclined to agree with Little on that, it still could

not flout the mandate of the D.C. Circuit. In arguing that the Court should refuse to resentence

him, Little asks the Court to do something it has no authority to do, since the Court lacks discretion

to deviate from the mandate. See Yablonski, 454 F.2d at 1038.

Similarly, Little’s argument that the mandate rule does not apply because the D.C. Circuit

did not consider double jeopardy, Def. Reply 2–3, fails because a higher court’s decision is

binding, even if that decision did not take into account a relevant but unraised argument. Little

points out that the briefing on appeal did not raise the double jeopardy argument and that the

resulting opinion does not reference double jeopardy. Id. 3. But he offers no authority for the

radical idea that this absence saps the force of the mandate. His reliance on Independent Petroleum

Association of America v. Babbit is misplaced. 235 F.3d 588 (2001). In that case, a party argued

that the D.C. Circuit had already decided that the party had taken a certain action, and that the

mandate rule thus prevented the district court from holding otherwise. Id. at 596. The D.C. Circuit

rejected this argument on the basis that “ [a]lthough some portions of” its earlier “decision may be

read to suggest that” the party had taken that action, that question “was not before us, nor decided

by us, even by implication.” Id. at 597.

The Court’s point was simply that the mandate rule does not control a district court’s

decision of a question not actually before or decided by the court of appeals. That is quite different

from Little’s suggestion that when the court of appeals expressly decides a matter without

considering a relevant but unraised argument, its directive to the lower court becomes optional.

Were he right, a district court could disregard instructions from above whenever a litigant

advanced a previously unraised objection to the otherwise binding decision. That cannot be

correct, because “[a] trial court is without power to do anything which is contrary to either the

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letter or spirit of the mandate construed in the light of the opinion of [the] court deciding the case.”

Yablonski, 454 F.2d at 1038. Accordingly, the Court will not give Little the remedy refused by

the D.C. Circuit.

B. Double Jeopardy Principles Do Not Prevent the Court From Imposing Additional

Punishment on Little, so Long as It Credits the Punishment Already Incurred

Principles of double jeopardy do not prohibit the Court from imposing an additional term

of imprisonment or probation when it resentences Little, as long as it credits the time already

served in prison or probation against any new punishment.

Little’s argument disregards

established principles of law, according to which a defendant who appeals an illegal sentence has

no legitimate expectation of finality in that sentence and therefore may be resentenced even if he

receives additional punishment and even if he has already served part of the original sentence.

Applying these principles, it is clear that in resentencing Little, the Court may impose additional

penalties, provided it appropriately reduces the new punishment to reflect the time he has already

served of his initial terms of imprisonment and probation.

Little relies on two Supreme Court decisions to argue that because he has already fully

served his term of imprisonment, double jeopardy prohibits the Court from imposing any

additional punishment. See Def. Mot. 2–9. He principally invokes the Supreme Court’s decision

in Ex Parte Lange, 85 U.S. 163 (1873). In that case, the defendant’s single statute of conviction

permitted imposition of a fine or imprisonment, but the judge imposed a maximum prison term

and a maximum fine. Id. at 164. The Supreme Court vacated the sentence and, applying double

jeopardy principles, held that because the defendant “had fully suffered one of the alternative

punishments to which alone the law subjected him, the power of the court to punish further was

gone.” Id. at 176. Little also cites In re Bradley, 318 U.S. 50 (1943). There, as in Lange, the

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judge sentenced the defendant to both a fine and imprisonment although the statute permitted only

one or the other. Id. at 51. After the defendant had already paid the fine, the court amended the

judgment to omit the fine but keep the imprisonment. Id. at 51–52. Citing Lange, the Supreme

Court concluded in a brief opinion that “[a]s the judgment of the court was thus executed so as to

be a full satisfaction of one of the alternative penalties of the law, the power of the court was at an

end.” Id. at 52 (citing Lange, 85 U.S. at 176). Based on these two cases, Little says that the

completion of his term of imprisonment amounts to “full satisfaction of one of the alternative

penalties of the law” and that the Court thus lacks authority to further punish him. Def. Mot. 3

(quoting Bradley, 318 U.S. at 52). Little’s argument fails, however, because the case law does not

support such a stark, sweeping reading of Lange or Bradley.

Indeed, the Supreme Court has read those cases narrowly. In Jones v. Thomas, the Court

emphasized that in Lange, the defendant had already paid the statutorily maximum fine and served

five days of his maximum one-year prison sentence when the trial court attempted to resentence

him to no fine but a further year in prison. 491 U.S. 376, 383 (1989) (citing Lange, 85 U.S. at

175). The Court explained that “Lange therefore stands for the uncontested proposition that the

Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature . . .

and not for the broader rule suggested by its dictum.” 491 U.S. at 383 (citing United States v.

DiFrancesco, 449 U.S. 117, 139 (1980)). The Court also stated that “we do not think the law

compels application of Bradley beyond its facts.” Id. at 386. And based on United States v.

DiFrancesco, 449 U.S. 117 (1980), the D.C. Circuit has concluded that “the holdings in Ex parte

Lange and [United States v. Benz, 282 U.S. 304 (1931)] now mean only that a court which imposes

a sentence greater than that authorized by the legislature subjects a defendant to multiple

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punishment in violation of the double jeopardy clause.” United States v. Fogel, 829 F.2d 77, 86–

87 (D.C. Cir. 1987).

By now it is well-established that the Constitution does not categorically bar additional

punishment at resentencing. In DiFrancesco, the Supreme Court held that neither a statutorily

authorized government appeal of a criminal sentence nor an increase of the sentence upon postappeal resentencing violates double jeopardy. 449 U.S. at 132, 136–37. The Court noted that its

precedents “clearly establish that a sentence does not have the qualities of constitutional finality

that attend an acquittal.” Id. at 134. And it observed that because the statute clearly permitted

appellate review of the sentences at issue, “[t]he defendant . . . has no expectation of finality in his

sentence until the appeal is concluded or the time to appeal has expired.” Id. at 136; see also id.

at 139.

From this statement in DiFrancesco, the D.C. Circuit has derived the principle that

“whether ‘an increase in a sentence’ violates the Double Jeopardy Clause ‘turns on the extent and

legitimacy of a defendant’s expectation of finality in that sentence.’” United States v. Casseday,

807 F. App’x 5, 7 (D.C. Cir. 2020) (quoting Fogel, 829 F.2d at 87).3 When does a defendant not

have a legitimate expectation in the finality of a sentence? When “he is or should be aware at

sentencing that the sentence may permissibly be increased.” Fogel, 829 F.2d at 88. “If . . . there

is some circumstance which undermines the legitimacy of” the defendant’s expectation of finality,

“then a court may permissibly increase the sentence.” Id. at 87.

Little asserts that “the ‘expectation of finality’ cases are not on point for a single-count, alternative-options case like

this one.” Def. Reply at 6. He seems to read DiFrancesco as applying only to instances in which the government

appeals the sentence pursuant to specific statutory authorization. See id. But there is no warrant to read DiFrancesco

as limited to its facts when the D.C. Circuit has already used it to distill a broader principle—in a single-count case,

no less. See Fogel, 829 F.2d at 79.

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Here, Little lacked a legitimate expectation of finality under Fogel because he received an

illegal sentence and challenged it on direct appeal. First, Little did not have a legitimate

expectation that his sentence was final because it was illegal. See Fogel, 829 F.2d at 88 (finding

that one reason the defendant had a legitimate expectation of finality was because “an increase in

appellant’s term of probation was not necessary to bring the sentence into compliance with any

statute” as “[t]he originally imposed sentence was not impermissible under the penalty statute”);

see also United States v. Rourke, 984 F.2d 1063, 1066 (10th Cir. 1992) (“A defendant cannot

acquire a legitimate expectation of finality in a sentence which is illegal, because such a sentence

remains subject to modification.”).

Second, Little did not legitimately expect his sentence to be final because he challenged it

on direct appeal. Fogel’s holding that the district court violated double jeopardy by “unnecessarily

increase[ing]” the defendant’s sentence on its own initiative, Fogel, 829 F.2d at 80–81, 90, is

“inapposite” when, as in this case, the defendant “voluntarily placed his sentence at issue by

challenging it.” United States v. Townsend, 178 F.3d 558, 567 n.1 (D.C. Cir. 1999); see also

United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987) (“Andersson has no legitimate

expectation of finality in the original sentence when he has placed those sentences in issue by

direct appeal and has not completed serving a valid sentence.”).

The fact that Little has already served part of his initial sentence does not change the result.

An increased punishment is permissible even if the defendant has begun serving the original,

illegal sentence, although any punishment already incurred must be credited against the increased

punishment. “[T]here no longer exists a per se rule that prohibits a court from increasing a

defendant’s sentence after service has begun.” Fogel, 829 F.2d at 86–87. A defendant whose

initial sentence was “plainly illegal” may receive additional punishment at resentencing. United

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States v. Evans, 459 F.2d 1134, 1136 (D.C. Cir. 1972) (“It is well settled that a sentence in all

respects legal cannot be increased after the defendant has begun serving it . . . . A sentence plainly

illegal, however . . . may be corrected even after the defendant has begun serving it.”) (citations

omitted) (collecting cases); see also Hayes v. United States, 249 F.2d 516, 518–19 (D.C. Cir. 1957)

(“True it is that defendant had begun to serve time; but as we read [Bozza v. United States, 330

U.S. 160 (1947)] this time was not lawful punishment the augmentation of which, to make the

sentence equal to the statutory penalty, constituted double jeopardy.”); Davenport v. United States,

353 F.2d 882, 884 (D.C. Cir. 1965) (affirming the holding of Hayes “that a defendant who

successfully attacks an invalid sentence can ‘be validly resentenced though the resentence

increased the punishment’” (quoting Hayes, 249 F.2d at 517)). Therefore, because Little’s

sentence was illegal, he can receive further penalties at resentencing.

This is not a case in which imposing an additional penalty would fall afoul of the Lange

rule that a defendant cannot be made to suffer greater criminal punishment than that prescribed by

the legislature. See Fogel, 829 F.2d at 86–87 (citing Lange, 85 U.S. 163). The defendant in Lange

had already paid the maximum fine permitted by law, Lange, 85 U.S. at 164, and so any further

penalty would have resulted in his total punishment exceeding the maximum set by Congress. In

contrast, although Little has fully served his term of imprisonment, those two months fall well

short of the statutory maximum of six months. See Little, 590 F. Supp. 3d at 343.

And Little is misguided in arguing that under Bradley he can suffer no further penalty

because “one valid alternative provision of the original sentence has been satisfied” by his

completion of the term of imprisonment imposed. Def. Mot. 3 (quoting Bradley, 318 U.S. at 52).

Little can receive additional punishment so long as the Court credits the punishment already

incurred against the new punishment.

In Thomas, the Supreme Court explained that the

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“alternative sentences in Bradley” of fine and imprisonment “were of a different type,” meaning

that “it would not have been possible to ‘credit’ a fine against time in prison.” 491 U.S. at 384.

By contrast, “crediting time served under one sentence against the term of another has long been

an accepted practice.” Thomas, 491 U.S. at 384 (citing North Carolina v. Pearce, 395 U.S. 711

(1969)). Crediting time ensures the defendant’s punishment does not exceed the maximum

prescribed by the legislature, which would violate Lange. See Fogel, 829 F.2d at 86–87 (citing

Lange, 85 U.S. 163); cf. Pearce, 395 U.S. at 718–19 (“[T]he constitutional guarantee against

multiple punishments for the same offense absolutely requires that punishment already exacted

must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.”),

overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798–803 (1989).

Accordingly, the Court may impose an additional punishment on Little so long as it

appropriately credits the time Little served in prison and on probation against the punishment. See

United States v. Lominac, 144 F.3d 308, 318 (4th Cir. 1998) (“Unlike the monetary sanction of a

fine, which cannot be converted into an equivalent temporal sanction, Lominac’s term of

supervised release restrained his liberty for a known period of time that can be credited against

any future sentence of imprisonment. Accordingly, Bradley does not bar resentencing.”),

abrogated on other grounds by Johnson v. United States, 529 U.S. 694 (2000); United States v.

Martin, 363 F.3d 25, 38 (1st Cir. 2004) (“[W]e join other courts of appeals in holding that these

similarities [between probation and imprisonment] are sufficient to allow crediting of probation

against imprisonment” upon resentencing after an appeal) (collecting cases).

If the Court decides to impose additional punishment, it must reduce that punishment to

reflect the punishment already incurred by Little of 60 days’ imprisonment and approximately 18

months’ probation. See Thomas, 491 U.S. at 384. In crediting time served on probation against a

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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

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.

39a

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

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).

40a

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

41a

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

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.

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

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C. Probation and Petty Offenses

To ensure that probation remains a standalone

sentence — not

punishment

addition

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.

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.

43a

But that regime proved too restrictive.

Congress amended the statute. It now reads:

So in 1994,

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).

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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

45a

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.”

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 . . . .”).

46a

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 lastantecedent rule a natural fit:

a different

offense

that is not a petty offense

[_________]

the same

[_________]

[_______]

[_________________________]

pronoun

adjectival

phrase

noun

qualifier

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

47a

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

48a

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

preclude[s]” probation; or

“expressly

(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.”

49a

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

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

50a

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 postconfinement 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).

51a

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

Class B felony

5 years

Class C felony

3 years

Class D felony

3 years

Class E felony

1 year

Nonpetty

misdemeanor

1 year

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.

52a

§ 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

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

53a

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).

54a

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.

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).

55a

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.

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

56a

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.

57a

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.

58a

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.

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

59a

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.

60a

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.

61a

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. 103322, 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.

62a

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

63a

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

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.

64a

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.

65a

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

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.

66a

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

67a

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.

68a

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.

69a

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

70a

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.

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)).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.