imposes a term of imprisonment, but need not impose any term of imprisonment at all, should be regarded as unintelligible.
The defendant's argument in the present case interprets § 845a(a) to say that a judge may impose no prison term at all, but that if a judge chooses to impose a prison term, the prison term can be no shorter than one year. This is precisely the sort of scheme labelled "unintelligible" by the Second Circuit in Detrich. As in Detrich, defendant has offered no evidence that Congress intended such a scheme. Detrich thus mandates that the Court reject the defendant's interpretation in this case, and adopt the interpretation that recognizes that there is a mandatory minimum prison term of one year under § 845a(a).
It might be argued, on defendant's behalf, that § 845a(a) should be treated differently from § 960(b)(2) of 21 U.S.C., which was the subject of Detrich.3 The provision in question in Detrich was in the form "shall be punished by x, y, or x and y," unlike § 845a(a), which states that the offense is "is punishable by x, or y, or x and y." The latter, it might be argued, is plainly disjunctive, whereas the former is not.
This objection is misguided for two reasons. First, it wrongly assumes that the "x, y, or x and y" is not plainly disjunctive. In ordinary English, the addition of another "or" is superfluous. To illustrate, a contract containing an option "to purchase Greenacre for $ 5,000, Blackacre for $ 4,000, or Greenacre and Blackacre for $ 8,000" would be viewed as plainly disjunctive, and plainly providing the promisee with three options, including the option of buying Blackacre for $ 4,000. It would add nothing to insert the term "or" before "Blackacre." Similarly, the language of the section in question in Detrich is plainly disjunctive. We thus find that the language of § 845a(a) does not distinguish this case from Detrich.
However, secondly, and more significantly, the Government's interpretation of § 845a(a) in this case does recognize that the language in question is disjunctive. Both parties recognize that the clause "is . . . punishable by a term of imprisonment, or a fine, or both . . ." enumerates three categories (prison, fine, both). However, the Government views this portion of the statute as stating that it would not exceed a Court's power to impose a prison term or to impose a fine (or to impose both), while the defendant views this portion of the statute as stating that it would be sufficient to impose any of those forms of punishment. Both interpretations are disjunctive, but the Government's interpretation avoids an unintelligible result and thus better accords with Detrich.
Williams, Concepcion, and Fernandez each arrived at the view that there was no mandatory prison term under § 845a(a). Each decision relied on a "plain meaning" rationale. The Eighth Circuit, in Williams, briefly noted that it was merely adopting a "plain reading" of the statute. Williams, 942 F.2d at 526. Similarly, Judge Sweet, in a case decided before Detrich, wrote in Concepcion that it was "evident from the repeated statutory use of disjunctive language" that § 845a(a) (in addition to § 841(b)(1)(C)) does not require a term of imprisonment. Concepcion, 721 F. Supp. at 495. In an extensive opinion, Judge Hutton also concluded that a "there is nothing in this language that implies that a term of imprisonment is mandatory let alone that it has to be at least one year." Fernandez, 749 F. Supp. at 683.
We disagree with these courts for two reasons, apart from the controlling precedent of Detrich. First, while we agree that the plain meaning of the statute suggests a disjunctive interpretation, there is more than one disjunctive interpretation, as the discussion above indicates. Second, however, the plain meaning of certain other provisions of the subsection conflicts with the defendant's view:
Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subection shall not be less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.
21 U.S.C. § 845a(a), repealed by 21 U.S.C. § 860 (emphasis added). The presence of the phrase "the mandatory minimum sentencing provisions of this paragraph" implies that there are mandatory minimum sentencing provisions in the paragraph. Under the defendant's interpretation, there are no mandatory minimum sentencing provisions.
The Fernandez court responded to this problem by stating that: "this Court, however, interprets the 'mandatory minimum sentencing' provision as referring to the requirement that the court impose a sentence of either a term of imprisonment, a fine, or both.'" Fernandez, 749 F. Supp. 683. This response is problematic because the concept of a mandatory minimum includes the idea that there is a bottom threshold, such that any sentence must be above that threshold. Section 845a(a) contains no bottom threshold for a fine (e.g., one cent could be a "fine"), and it thus contains no bottom threshold for a sentence, under defendant's interpretation. There is therefore nothing to which the phrase the "the mandatory minimum sentencing provisions of this paragraph" could refer.
More generally, the defendant's view is incapable of finding any meaning for an entire sentence of the subsection, which states, "the mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana." Because there is no mandatory minimum on this view, there is nothing from which to exempt those convicted of offenses involving 5 grams of marihuana or less. Even if one interpreted "the mandatory minimum sentencing provisions" to be a requirement that at least some fine must be imposed, see Fernandez, given that this requirement could be satisfied by a fine of one cent, it would make no sense to exempt those convicted of 5 gram or less marihuana offenses from such a fine.
The foregoing analysis suggests that, even if the Fernandez court were correct about the plain meaning of the disjunctive language of § 845a(a), considerations of context should lead a court to reject the Fernandez interpretation. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979) ("in construing a statute we are obliged to give effect, if possible, to every word Congress used. [citation omitted] Canons of construction ordinarily suggest that terms separated by a disjunctive be given separate meanings, unless the context dictates otherwise. . ." (emphasis added)). Indeed, even from a strict "plain meaning" point of view, and even assuming the correctness of the Fernandez interpretation of § 845a(a)'s disjunctive language, the disjunctive language here is not controlling, because it leads to an interpretation that renders meaningless part of the statute, and is therefore patently absurd. I.N.S. v. Cardozo Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 1224, 94 L. Ed. 2d 434 (1987) (Scalia, J., concurring) (". . . if the language of a statute is clear, that language must be given effect--at least in the absence of a patent absurdity.")
For the reasons stated above, we interpret § 845a(a) to include a mandatory minimum term of imprisonment of one year.
DATED: New York, New York
March 3, 1992
Kimba M. Wood
United States District Judge