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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-1662
- --------
- UNITED STATES, PETITIONER v. RALPH STUART
- GRANDERSON, Jr.
- on writ of certiorari to the united states court
- of appeals for the eleventh circuit
- [March 22, 1994]
-
- Justice Scalia, concurring in the judgment.
- My view of this case is close to, but not precisely, that
- of Justice Kennedy. I agree with him, for the reasons
- he well expresses, that the only linguistically tenable
- interpretation of 18 U. S. C. 3565(a) establishes as a
- floor a sentence one-third of the sentence originally
- imposed, but leaves the district court free to impose any
- greater sentence available for the offense under the
- United States Code and the Sentencing Guidelines.
- Wherein I differ is that I do not believe (as he does)
- that only the probation element of the original sentence
- is to be considered-i.e., as he puts it, -that the term
- `original sentence' refers to the sentence of probation a
- defendant received at the initial sentencing.- Post, at 2
- (emphasis added). (The Chief Justice also espouses
- this view, see post, at 3.) It seems to me that the term
- must refer to the entire original sentence; where that
- includes a fine in addition to the probation, the fine also
- is included. Thus, one-third of a sentence consisting of
- three years' probation and a $3,000 fine would be not
- merely one year's probation but a $1,000 fine as well.
- Even the majority, to maintain some measure of consis-
- tency in its strained interpretation of -original sentence,-
- ought to consider, in addition to -the applicable Guide-
- lines sentence of imprisonment,- ante, at 15, the equally
- applicable range of fines set forth in the Guidelines, see
- United States Sentencing Commission, Guidelines
- Manual 5E1.2(c)(3) (Nov. 1993).
- Both under my analysis, and under Justice
- Kennedy's, there exists a problem of comparing the
- incomparable that ought to be acknowledged. Since
- Granderson's original sentence was 60 months' probation
- plus a $2,000 fine, I must, in order to concur in today's
- judgment, conclude, as I do, that the five extra months
- of prison (beyond the Guidelines' 6-month maximum
- imposable for the original offense) which Granderson has
- served are worth at least $667 (one-third the original
- fine) and that 11 months in prison are the equivalent of
- 20 months' probation plus a $667 fine-because other-
- wise I would have to consider imposing some or all of
- the $5,000 maximum fine imposable for the original
- offense, see USSG 5E1.2(c)(3), or indeed consider
- departing upward from the applicable Guidelines range,
- see 18 U. S. C. 3553(b), towards the 5-year imprison-
- ment that is the statutory maximum for the offense, see
- 18 U. S. C. 1703(a). And Justice Kennedy, even if he
- takes only the probation into account for purposes of
- determining the -original sentence,- must still conclude,
- it seems to me, that 11 months in prison is at least the
- equivalent of 20 months' probation-because otherwise
- he would have to consider imposing some or all of the
- available $5,000 fine or departing upward from the
- Guidelines.
- It is no easy task to determine how many days'
- imprisonment equals how many dollars' fine equals how
- many months' probation. Comparing the incommensu-
- rate is always a tricky business. See, e.g., Bendix
- Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S.
- 888, 897 (1988) (Scalia, J., concurring in judgment). I
- frankly doubt that those who drafted and adopted this
- language intended to impose that task upon us; but I
- can neither pronounce the results reached by a straight-
- forward reading of the statute utterly absurd nor discern
- any other self-evident disposition for which they are an
- obviously mistaken replacement. Cf. Green v. Bock
- Laundry Machine Co., 490 U. S. 504, 527 (1989) (Scalia,
- J., concurring in judgment). It seems to me that the
- other interpretations proposed today suffer, in varying
- degrees, the double curse of producing neither textually
- faithful results nor plausibly intended ones. It is best,
- as usual, to apply the statute as written, and to let
- Congress make the needed repairs. That repairs are
- needed is perhaps the only thing about this wretchedly
- drafted statute that we can all agree upon.
- For these reasons, I concur in the judgment of the
- Court.
-