Darius Briscoe v. United States , 181 A.3d 651 ( 2018 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CF-1369
03/29/2018
DARIUS BRISCOE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-8611-15)
(Hon. Milton C. Lee, Trial Judge)
(Submitted February 24, 2017 Decided March 29, 2018)
Donna L. Biderman was on the brief for appellant.
Channing D. Phillips, United States Attorney at the time, and Elizabeth
Trosman, Nebiyu Feleke, Tamika Griffin, and Priya Naik, Assistant United States
Attorneys, were on the brief for appellee.
Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
Opinion for the court by Associate Judge THOMPSON.
Concurring opinion by Associate Judge MCLEESE at page 31.
Separate Statement by Associate Judge THOMPSON at page 34.
Opinion by Senior Judge RUIZ dissenting in part at page 36.
2
THOMPSON, Associate Judge: A jury convicted appellant Darius Briscoe of
armed robbery, assault with a dangerous weapon (“ADW”), and two counts of
possession of a firearm during a crime of violence (“PFCV”). Appellant asserts
that the government violated Superior Court Criminal Procedure Rule 16 and his
rights under Brady v. Maryland1 by failing to obtain and produce the contents of a
surveillance camera attached to an apartment building located on the street where
the offenses occurred, and he argues that the government should have been
sanctioned for that conduct. He also argues that the trial court erred in assuming
that it was required to impose the statutory five-year mandatory-minimum sentence
for a “while armed” crime of violence and the same mandatory-minimum sentence
for PFCV, and in failing to recognize that it could exercise sentencing discretion
under the Youth Rehabilitation Act (“YRA”). Reviewing appellant‟s claims for
plain error, we conclude that appellant is not entitled to relief. Accordingly, we
affirm.
I.
1
373 U.S. 83 (1963).
3
Trial in this case commenced on October 8, 2015. The evidence showed that
on June 21, 2015, Troy Thomas was assaulted and robbed at gunpoint by a man he
later identified from a photo array as appellant. Thomas had just stopped at a
convenience store to bet on horse races. As he was leaving the store, he saw
appellant approaching with a bicycle. As Thomas was walking home, appellant
stopped him in an alleyway, pointed a handgun at him from approximately ten to
fifteen feet away, and said, “I heard you been hitting them horses. Hand that shit
up.” Four other people then joined appellant in the alleyway, whereupon appellant
ordered them to search Thomas‟s pockets. After the search, the group took
Thomas‟s phone, wallet, identification cards, Metro transportation card, and sixty
dollars in cash. Appellant then pulled the trigger of the handgun. When no shot
fired, Thomas took off running.
Thomas, afraid to return home that night, fled to his girlfriend‟s home. The
following morning, when he returned home, he found officers responding to a
different incident on his street, informed one of them about the previous night‟s
robbery, and described his assailant. The next day, Thomas saw appellant coming
down his street on a scooter and called Detective Sean Crowley of the
Metropolitan Police Department (“MPD”) to report the sighting. After hearing a
lookout broadcast over the radio, MPD Officer Caleb Bacon spotted appellant,
4
whom he recognized by name, on a scooter and chased him. Appellant got away,
but Officer Bacon provided information as to appellant‟s identity to Detective
Crowley, who prepared a nine-person photo array containing appellant‟s picture.
From that array, Thomas identified appellant as the person with the gun who had
robbed him.
The government‟s trial evidence included video surveillance footage from a
camera located outside the convenience store.2 Thomas identified appellant in the
convenience store video footage. MPD Investigator Sean Rutter testified that he
had spotted a surveillance camera in the rear of an apartment building that looked
into the alley where the incident occurred. However, Investigator Rutter “was not
able to make contact with the homeowner” and, therefore, never received any
footage the camera may have contained. Rutter also testified that he was “not
sure” whether the camera “was fake” and that in his experience, “half of the time,”
cameras are “put up for deterrence purposes” only and do not actually work.
2
The trial court observed, in comments to counsel, that the video footage
“doesn‟t show the actual event” but tended to corroborate Thomas‟s testimony that
appellant was outside the store.
5
Appellant did not testify, but his trial counsel argued mistaken identity.
Counsel told the jury that the man shown in the convenience store surveillance
video looked like, but was not, appellant.
Citing Brady and Super. Ct. Crim. R. 16, appellant now asserts that “[t]he
government did not preserve [the footage from the surveillance camera attached to
the apartment building], and because of its failure, [he] was prejudiced,” a
circumstance that he contends warranted sanctions against the government.
Appellant also argues that the sentence the trial court imposed was based on an
“incorrect understanding of the law,” because the YRA “supersedes the mandatory
minimum in this case.”
II.
As to appellant‟s Brady and Rule 16 claims, the rule that guides our analysis
is that where — as here — “defense counsel fails to move for the production of
evidence and does not request the imposition of sanctions against the government
for failing to preserve discoverable material, the trial court‟s failure to sua sponte
impose a sanction will only be reversed upon a finding of plain error.” Sheffield v.
United States, 397 A.2d 963, 968 (D.C. 1979).
6
Where no objection was made during the sentencing proceeding, this court
applies plain-error review to a claim that the trial court erroneously believed that
the sentence it imposed was mandatory. See Veney v. United States, 738 A.2d
1185, 1198 (D.C. 1999). The plain error test requires that there “be (1) „error,‟ (2)
that is „plain,‟ and (3) that „affects substantial rights.‟” Johnson v. United States,
520 U.S. 461, 466-67 (1997) (internal brackets omitted) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). “If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 467 (internal quotation marks and brackets omitted).
Our review of questions of statutory interpretation is de novo. Peterson v.
United States, 997 A.2d 682, 683 (D.C. 2010).
III.
We can dispose of appellant‟s first claim summarily. To establish a Brady
violation, an appellant must first show that the information the government failed
to produce was in its possession; “[i]f the government does not possess the
7
requested information, there can be no Brady violation.” Guest v. United States,
867 A.2d 208, 212 (D.C. 2005). “The Brady principle does not imply the
government‟s duty to investigate — and come to know — information which the
defendant would like to have but the government does not possess.” Id. (internal
brackets omitted) (quoting Lewis v. United States, 393 A.2d 109, 115 (D.C. 1978)).
Rule 16 similarly requires the government to produce certain items “if the item is
within the government‟s possession, custody, or control.” Super. Ct. Crim. R. 16
(a)(1)(E). “If [the requested item was not ever within the government‟s
possession], there can be no Rule 16 violation.” Myers v. United States, 15 A.3d
688, 690 (D.C. 2011).
Here, appellant has failed to show that the government was ever in
possession of any contents of the video camera attached to the apartment building.
The only pertinent evidence in the record was the testimony of Investigator Rutter,
who testified that he “was not able to make contact with the homeowner” to obtain
any video footage the camera might have captured, that he did not even know
whether the camera was “fake,” and that in his experience, video surveillance
cameras frequently do not work and are mounted solely for their deterrent effect. 3
3
Moreover, defense counsel acknowledged in his closing argument to the
jury that “we don‟t know whether [the camera] was working or not.”
8
Further, the government had no duty under the Due Process Clause or under Rule
16 to take steps to investigate and obtain any video footage the camera, which the
government did not possess or control, might have contained. See Guest, 867 A.2d
at 212; cf. Koonce v. District of Columbia, 111 A.3d 1009, 1016 (D.C. 2015)
(stationhouse video of person arrested for DUI must be preserved under Rule 16).
Accordingly, we have no basis for concluding that the government violated Brady
or Rule 16 by not producing any evidence from that camera and, likewise, no basis
for concluding that the trial court plainly erred by not sanctioning the government. 4
IV.
A.
During the sentencing proceeding, defense counsel said that “[t]here are
guidelines that are before the [c]ourt[,]” but urged the court to “consider the
sentence under the [YRA],” telling the court that he hoped appellant would be
4
Further, even if it is assumed arguendo that the video camera recorded the
incident, “[w]e do not know whether the tape would have been exculpatory.”
Robinson v. United States, 825 A.2d 318, 325 (D.C. 2003). “There is no Brady
violation absent a showing of materiality, i.e.,” a showing “that the missing
evidence „would have made a different result reasonably probable.‟” Id. (quoting
Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (citations omitted)).
9
allowed “to have Your Honor sign an order of expungement should the [c]ourt go
along the lines [counsel was] requesting.” The prosecutor said that the government
would “rest largely” on its Memorandum in Aid of Sentencing, which — citing
appellant‟s “substantial criminal history” and asserting that his conduct was “only
getting more violent” — recommended that appellant be sentenced to consecutive
sentences of sixty months of imprisonment and three years of supervised release
for his robbery while armed and PFCV convictions, and to a concurrent sentence
of twenty-four months‟ imprisonment and three years of supervised release for the
ADW conviction. The prosecutor told the court that the government “defer[red] to
the [c]ourt” “in reference to the Youth Act.”
Before announcing appellant‟s sentence, the court cited appellant‟s record of
prior convictions (referring to “all . . . the other cases that [appellant] had”) and
also noted the “really hard impact” of appellant‟s offenses on victim Thomas. In
addition, the court emphasized that it took a period of being locked up for appellant
(who earned his GED while in jail awaiting trial and sentencing) to “apply
[him]self.” The court said that it would adhere to the voluntary sentencing
guidelines with respect to “when consecutive sentencing is appropriate,” noting
that consecutive sentencing would be appropriate had there been multiple victims
or offenses occurring at different times. The trial judge then stated the following:
10
The sentencing is difficult in this case, in large part
because there‟s a mandatory minimum attached to this
because there is a firearm used. But . . . I don‟t see any
value going above the mandatory minimum in this case.
And in some respect maybe the mandatory minimum is a
little too harsh but it is the mandatory minimum. It is
what [the] city coun[cil] said is appropriate under the
circumstances.
The court sentenced appellant to concurrent sentences of sixty months of
imprisonment and three years of supervised release for his robbery while armed
and PFCV convictions and imposed a concurrent sentence of thirty months‟
imprisonment and three years of supervised release for the ADW conviction. The
court said that “[t]he sentence will be under the Youth Act so that [appellant
would] have the ability if [he could] successfully complete all this to remove it
from [his] record.” The Judgment and Commitment Order states that the sentences
were imposed under, and that appellant was to be “[c]ommitted pursuant to,” D.C.
Code § 24-903 (b), (c) (providing for “treatment and supervision pursuant to this
subchapter up to the maximum penalty of imprisonment otherwise provided by
law” if the court “determines that the youth offender will derive benefit from the
provisions of this subchapter”).
11
B.
Appellant reads the sentencing transcript to suggest that the trial court might
have imposed a less “harsh” sentence had it understood that it was free to do so.
Appellant contends that the court was free to do so and erred in assuming that it
was compelled to impose the five-year mandatory-minimum sentence established
by D.C. Code §§ 22-4502 (a)(1) and -4504 (b) (2012 Repl.) for his convictions of
armed robbery and PFCV, respectively.
Although defense counsel urged the trial court to proceed under the YRA to
make expungement possible, he never argued that the court had discretion not to
impose the mandatory-minimum sentences under those statutes. Counsel‟s
Memorandum in Aid of Sentencing simply sought “a lenient sentence pursuant to
the [YRA]” and “the minimum permissible sentence pursuant to the [YRA].”
Further, counsel told the court during the sentencing proceeding that “whether the
[c]ourt gives him a [YRA] sentence or not[,]” he was “willing to accept the
judgment of the [c]ourt.”5 Even though counsel had reviewed (and referred in his
5
In neither his memorandum nor his argument during the sentencing
proceeding did counsel urge the court to impose no sentence at all in favor of
probation. He did suggest — to the contrary, at least arguably — that appellant
(continued…)
12
Memorandum in Aid of Sentencing to) the Presentence Report (“PSR”), and even
though the PSR referred to the five-year mandatory-minimum sentences for
robbery while armed and PFCV, appellant‟s Memorandum in Aid of Sentencing
said nothing about whether those minimum sentences were applicable. And
although appellant now argues that “[i]t was obvious at sentencing that the trial
court was under the misimpression that it had to sentence [him] to the mandatory
minimum,” his counsel made no objection when the court said that sentencing was
difficult “because there‟s a mandatory minimum attached to this because there is a
firearm used.” Counsel also did not object to imposition of the mandatory-
minimum sentence even when, after announcing the sentence, the court said to
him, “anything else?” Accordingly, our analysis is for plain error.
In support of his claim of error, appellant cites footnote 43 in Green v.
United States, 974 A.2d 248 (D.C. 2009). That footnote accompanies a sentence in
the text of the opinion that states that the court “remand[s] this case for re-
sentencing.” Id. at 262. The footnote explains that “Mr. Green requests, and the
government does not oppose, a remand for re-sentencing.” Id. at 262 n.43. The
footnote further explains that the trial court “imposed mandatory minimum terms”
(…continued)
needed a “setting” (“He just needs a setting, perhaps a mentor if the [c]ourt can
arrange that”).
13
“at the government‟s request,” but that “[i]n light of its review of the legislative
history of the DCYRA, . . . „the government . . . [now] accedes to appellant‟s claim
that the five-year mandatory minimum terms required by D.C. Code §§ 22-4502(a) and -4504 (b) do not have to be imposed when sentencing under the DCYRA.‟”
Id. at 262 & n.43 (brackets in the original).6 The government now asserts that
“[o]n further reflection, we have concluded that our prior concession [in Green]
was incorrect.”
In Green, this court remanded for resentencing without giving any specific
instructions to the trial court. At most, this court “merely accepted”7 the
government‟s “acced[ing]” to Green‟s claim that the five-year mandatory
minimum terms required by D.C. Code §§ 22-4502 (a) and -4504 (b) do not have
to be imposed when the trial court imposes a sentence under the YRA, and did not
6
Green argued to the trial court that the five-year mandatory-minimum
terms under §§ 22-4502 (a) and -4504 (b) did not apply to sentences imposed
under the YRA, thus (unlike appellant in this case) preserving the issue. In its brief
in Green‟s direct appeal, although “continu[ing] to believe that an argument
c[ould] be made that the mandatory minimum terms in [the while-armed and
PFCV statutes] must be applied when imposing a period of incarceration under the
[YRA],” the government asserted that there was “sufficient ambiguity” on the
issue “as to render application of the rule of lenity appropriate” and stated that it
would not oppose Green‟s request for a remand for resentencing.
7
United States v. Garcia-Caraveo, 586 F.3d 1230, 1234-35 (10th Cir.
2009).
14
independently analyze the issue. Given these circumstances, we agree with the
government that we are not bound by the government‟s “concession” in Green
with respect to an issue that was not actually decided by the court. See Daly v.
District of Columbia Dep’t of Emp’t Servs., 121 A.3d 1257, 1262 (D.C. 2015)
(explaining that the interpretation the court applied in an earlier case was “not
binding precedent, given the [petitioners‟] concession in that case”);8 United Food
& Commercial Workers Union, Local 1564 v. Albertson’s, Inc., 207 F.3d 1193,
1199-1200 (10th Cir. 2000) (declining to accord precedential weight to a panel
decision that assumed, but did not explicitly decide, that the court had jurisdiction,
even though the jurisdictional issue was necessary to the holding in that prior case;
stating, “[i]n order for a decision to be given stare decisis effect with respect to a
particular issue, that issue must have been actually decided by the court” (quoting
18 James Wm. Moore, et al., Moore‟s Federal Practice § 134.04[5] (3d ed. 1999))).
Green “stands for the propositions it established[,] not for the propositions
conceded by the parties.” In re Coats, 267 P.3d 324, 332 (Wash. 2011) (en banc).
For that reason, and because “the proper administration of the criminal law cannot
8
In light of Daly, decided in August 2015, it would not have been plain to
the trial court at sentencing in this case on December 18, 2015, that the remand for
resentencing in Green, based on the government‟s concession about whether the
while-armed and PFCV mandatory-minimum sentences applied, represented
binding precedent.
15
be left merely to the stipulation of parties,” Young v. United States, 315 U.S. 257,
259 (1942), we analyze the issue afresh.
We have said that we cannot find error that is “obvious or readily apparent”
— i.e., plain — “where this court has not spoken on the subject.”
Cartledge v. United States, 100 A.3d 147, 150 (D.C. 2014) (internal quotation
marks omitted). There could, however, be situations where a statute is so clear on
its face that a decision of this court is unnecessary to make it “obvious” what the
correct interpretation is. And, in appropriate contexts, our review for plain error
entails considering whether there is “authority that appears to be to the contrary[.]”
Alexander v. United States, 116 A.3d 444, 449 n.5 (D.C. 2015).9 Here, in light of
the government‟s previous concession, based upon its “review of the legislative
history” of the YRA, that the five-year mandatory-minimum terms required by §§
22-4502 (a) and -4504 (b) “do not have to be imposed” when the Superior Court
sentences a youth offender under the YRA, Green, 974 A.2d at 262 n.43, we deem
9
Cf. United States v. Cheal, 389 F.3d 35, 49 (1st Cir. 2004) (considering
legislative history of relevant statute in analyzing claim under plain-error
standard); Marcia V. v. Office of Children’s Servs., 201 P.3d 496, 503-05 (Alaska
2009) (considering whether the claim of error had support in legislative history, but
concluding that the argument for error was not strong enough to reverse under the
plain-error standard of review).
16
it appropriate to analyze any statutory language or legislative history that may
compel that conclusion (or the contrary conclusion the government now urges).
The YRA provides, in pertinent part, that “[i]f the court is of the opinion that
the youth offender does not need commitment, it may suspend the imposition or
execution of sentence and place the youth offender on probation.” D.C. Code
§ 24-903 (a)(1) (2012 Repl.).10 The YRA further provides that “[i]f the court shall
find that a convicted person is a youth offender, and the offense is punishable by
imprisonment under applicable provisions of law other than this subsection, the
court may sentence the youth offender for treatment and supervision pursuant to
this subchapter up to the maximum penalty of imprisonment otherwise provided by
law.” D.C. Code § 24-903 (b). D.C. Code § 24-903 (f) explains that § 24-903
“provide[s] sentencing alternatives in addition to the options already available to
the court.”
10
The YRA defines a youth offender as “a person less than 22 years old
convicted of a crime other than murder, first degree murder that constitutes an act
of terrorism, and second degree murder that constitutes an act of terrorism.” D.C.
Code § 24-901 (a)(6) (2012 Repl.). The record indicates that appellant was still
under twenty-two years of age at the time of sentencing.
17
In contrast, D.C. Code § 22-4502 (which for convenience we will call the
“while-armed statute”) provides in pertinent part that “[a]ny person who commits a
crime of violence, or a dangerous crime in the District of Columbia when armed
with . . . any pistol or other firearm . . . shall . . . be imprisoned for a mandatory-
minimum term of not less than 5 years[.]” D.C. Code §§ 22-4502 (a), (a)(1).11
Further, D.C. Code § 22-4502 (c) provides that a defendant found to have been
“armed with any pistol or firearm” and sentenced under § 22-4502 (a)(1) “shall not
be released, granted probation, or granted suspension of sentence, prior to serving
[such] mandatory-minimum sentence.”12
The PFCV statute, enacted in 1990 through D.C. Law 8-120 (see 37 D.C.
Reg. 24), similarly provides in pertinent part that upon conviction of possession of
a firearm or imitation firearm while committing a crime of violence, a defendant
11
The term “crime of violence” includes robbery. See D.C. Code § 22-
4501 (1) (2012 Repl.) (incorporating the definition set forth in D.C. Code § 23-
1331 (4) (2012 Repl.)).
12
The mandatory-minimum provisions of § 22-4502 were enacted through a
voter initiative effective June 7, 1983. See Abrams v. United States, 531 A.2d 964,
966, 966 n.3 (D.C. 1987) (citing the “District of Columbia Mandatory-Minimum
Sentences Initiative of 1981 Delayed Effectiveness Amendments Emergency Act
of 1983” (D.C. Act 5-10, March 9, 1983, 30 D.C. Reg. 1226-27)). “[T]here is no
[initial] legislative history.” Johnson v. United States, 686 A.2d 200, 208 (D.C.
1996) (King, J., concurring).
18
“shall be sentenced to imprisonment for a mandatory-minimum term of not less
than 5 years and shall not be released on parole, or granted probation or suspension
of sentence, prior to serving the mandatory-minimum sentence.” D.C. Code § 22-
4504 (b).
The government contends that the trial court did not err, plainly or
otherwise, in sentencing appellant to five-year, mandatory-minimum terms of
imprisonment for armed robbery and PFCV because “[t]he statutory provisions
setting the mandatory minimums for both offenses make explicit that the
mandatory sentences must be imposed and served, notwithstanding the YRA.”13
We disagree with the government‟s assertion that the while-armed and PFCV
statutes are “explicit” to that effect. Neither statute‟s mandatory-minimum
sentence provision contains the strong “[n]otwithstanding any other provision of
law” language that led us to conclude “inescapabl[y,]” in Peterson v. United States,
13
The government also argues that “as to the narrow class of crimes
covered by” §§ 22-4502 (c) and -4504 (b), the foregoing mandatory-minimum
sentence provisions, rather than “the more general YRA [provisions] . . . control.”
We need not decide the issue, but it seems at least equally reasonable to treat the
YRA as the more specific statute, and the while-armed and PFCV statutes as more
general ones. Cf. United States v. Stokes, 365 A.2d 615, 619 n.16 (D.C. 1976) (“It
also could be argued, however, that . . . the Youth Act could be regarded as the
more specific of the two enactments. The Youth Act confers a liberalized
sentencing alternative on a specific class of offenders, while D.C. Code 1973, § 22-
2404 applies in general to those convicted of first-degree murder.”).
19
997 A.2d 682, 684-85 (D.C. 2010), that the YRA‟s authorization of sentencing
alternatives did not permit the trial court to suspend imposition or the execution of
the seven-year mandatory-minimum sentence required by the carjacking statute,
D.C. Code § 22-2803 (c) (2001).14 Somewhat to the same point, neither statute
contains the strong “notwithstanding” clause that the Council adopted when it
passed the Comprehensive Youth Justice Amendment Act of 2016, D.C. Law 21-
14
Section 22-2803 (c) provides that “[n]otwithstanding any other provision
of law, a person convicted of carjacking shall not be released from prison prior to
the expiration of 7 years from the date of the commencement of the sentence, and a
person convicted of armed carjacking shall not be released from prison prior to the
expiration of 15 years from the date of the commencement of the sentence.” See
also Beale v. United States, 465 A.2d 796, 806 (D.C. 1983), overruled in part on
other grounds by Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc)
(holding that where the defendant was convicted of first-degree murder under the
provision now codified as D.C. Code § 22-2104 (b), the trial court correctly
refused to consider probation as a sentencing alternative; reasoning that in light of
the “[n]otwithstanding” language in the provision‟s mandatory-minimum
paragraph, “it would be impossible for this court . . . to authorize a sentencing
judge who sentences a first degree murderer to life imprisonment then to suspend
execution of this sentence and to place such defendant on probation”).
On the other hand, the language in the while-armed statute — “shall not be
released, granted probation, or granted suspension of sentence, prior to serving
such mandatory-minimum sentence,” § 22-4502 (c) — like the nearly identical
language in the PFCV statute, § 22-4504 (b), is at least arguably stronger than the
carjacking statute‟s prohibition against early “release[] from prison,” D.C. Code
§ 22-2803 (c), since it forecloses not only early release but also leniency that
would enable a defendant to entirely avoid a period of incarceration. The language
of the while-armed and PFCV statutes thus provides some support for the
government‟s position that the mandatory-minimum sentence each prescribes must
not only be served when imposed, but also “must be imposed.”
20
0238 (effective Apr. 4, 2017) (the “CYJAA”), codified at D.C. Code § 24-403.01(c)(2) (West 2017), providing that “[n]otwithstanding any other provision of law, if
the person committed the offense for which he or she is being sentenced under this
section while under 18 years of age . . . [t]he court may issue a sentence less than
the minimum term otherwise required by law.” § 24-403.01 (c)(2)(A).
In any event, the issue before us is not whether the trial court was plainly
correct in (apparently) assuming that it lacked discretion to sentence appellant to
less than the mandatory minimums prescribed by the while-armed and PFCV
statutes, but whether the court was plainly wrong if it assumed that it was bound to
apply the mandatory minimums.15 For us to conclude that the trial court was
plainly wrong, its (putative) error in assuming that the mandatory minimum
applied “must be so clear or obvious that it could not be subject to any reasonable
15
We say that the court “apparently” assumed that it was bound to apply the
mandatory-minimum sentences because the court observed merely that “there‟s a
mandatory minimum attached” to the offenses that “is what city coun[ci]l said is
appropriate under the circumstances.” At least arguably, the court‟s reference to
the sentence the Council thought appropriate was in recognition of the court‟s
obligation to impose a sentence that “[r]eflects the seriousness of the offense[.]”
D.C. Code § 24-403.01 (a)(1) (2012 Repl.). We note also that the court had
received the PSR report that referred to the mandatory-minimum sentences but that
also presented for the court‟s information appellant‟s “criminal history score” and
the applicable “guideline compliant sentence,” which was 48 to 96 months for the
robbery-while-armed and PFCV offenses.
21
dispute.” United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016) (citing
Puckett v. United States, 556 U.S. 129, 135 (2009)).
With respect to the while-armed statute, D.C. Code § 22-4502, the language
of that statute16 and the legislative history of the YRA both provide support for
appellant‟s claim of error. As pertinent here, D.C. Code § 22-4502 (e)(1) provides
that “Subchapter I of Chapter 9 of Title 24 [i.e., the YRA] shall not apply with
respect to [inter alia] any person . . . convicted more than once of” a while-armed
crime of violence or dangerous crime. Under the expressio unius, exclusio alterius
canon of statutory construction,17 the strong implication of § 22-4502 (e)(1) is that
the YRA is applicable to a youth offender such as appellant, convicted for the first
time of robbery while armed.
16
Our analysis of the interplay between the YRA and §§ 22-4502 and -4504
starts “where all such [statutory construction] inquiries must begin: with the
language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241 (1989) (“[W]here . . . the statute‟s language is plain, „the sole function of
the courts is to enforce it according to its terms.‟”) (citation omitted)).
17
See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) (“Where
[the legislature] explicitly enumerates certain exceptions to a general prohibition
[or rule], additional exceptions are not to be implied, in the absence of evidence of
a contrary legislative intent.”).
22
The government would have us read § 22-4502 (e)(1) to mean that (1) all of
the benefits of the YRA (including alternative sentencing options and
expungement) must be denied to an offender described there, while (2) for an
offender convicted for the first time of robbery while armed, the conviction may
eventually be set aside pursuant to the YRA, but the five-year mandatory-
minimum sentence nonetheless applies. At least arguably, that reading is
inconsistent with the legislative history of the YRA.18 The Committee on the
Judiciary Report accompanying the legislation that became the YRA includes the
following statements:
[The legislation] provides that a youth offender who is
convicted of a second armed offense is ineligible for
sentencing under the act. Also, a youth offender
convicted of murder (including felony murder) is
precluded from benefiting from the rehabilitative
sentencing options of the act.
D.C. Council, Report on Bill 6-47 at 3 (June 19, 1985) (the “YRA Report”)
(emphasis added).19 The Committee‟s focus on exclusions from “sentencing under
18
Notably, the YRA amended § 22-4502 (e)(1) to substitute a reference to
the YRA for a previous reference to the Federal Youth Corrections Act, its
predecessor statute, showing that the Council was focused on the interplay between
the YRA and § 22-4502.
19
These statements are all the more significant given that the Council was
urged to exclude YRA sentencing for armed robbery. See YRA Report at 26
(statement of City Administrator/Deputy Mayor Thomas Downs urging the
Council to add armed robbery to the “current exemption of murder”).
23
the act” and from the “sentencing options of the act” for second-time violence-
while-armed offenders and offenders convicted of murder while armed, and not
just on such offenders‟ ineligibility for the conviction-set-aside opportunity the
YRA provides, arguably supports reading § 22-4502 (e)(1) to imply that youth
offenders not described there — including appellant, who was convicted for the
first time of a while-armed crime of violence (robbery) — may be sentenced under
the YRA rather than in accordance with the mandatory minimum.20
For the foregoing reasons, appellant possibly has (and for purposes of our
analysis, we can assume he has) the better of the argument regarding whether the
20
There is further support for that interpretation in the fact that the YRA
was enacted to “fill the void created by congressional repeal of the Federal Youth
Corrections Act.” YRA Report at 2. Our case law applying the Federal Youth
Corrections Act had reasoned that it was “logical to assume that had Congress
intended the exclusion of first-degree murder from [Federal] Youth [Corrections]
Act coverage, this intent would have been expressed at the time the provisions of
the Act” became effective in the District of Columbia. Stokes, 365 A.2d at 618(holding, in agreement with United States v. Howard, 449 F.2d 1086 (D.C. Cir.
1971), that a defendant convicted of first-degree felony murder before reaching age
twenty-two was eligible to receive a Federal Youth Corrections Act sentence). In
light of that history, to which the Committee on the Judiciary alluded in the YRA
Report (YRA Report at 3), it seems reasonable to expect that in adopting the YRA,
the Council would have taken caution to make it express that first-time crime-of-
violence-while-armed youth offenders are ineligible for the alternative sentencing
options of the YRA (and are eligible only for sentence expungement pursuant to
the YRA) if that is what it intended.
24
trial court erred if it assumed that it was required to sentence him to at least the
mandatory-minimum sentence under § 22-4502 (a)(1) for robbery while armed.
We cannot reach that conclusion as to the mandatory-minimum sentence
under the PFCV statute, however. Unlike the while-armed statute, the PFCV
statute, § 22-4504 (b) — which “create[d] a new offense” unknown at the time the
YRA was enacted — includes no provisions that, by implication, exclude any
category of offenders from its mandatory-minimum sentence provision.21 D.C.
Council, Report on Bill 8-185 at 3 (Dec. 4, 1989) (the “PFCV Report”); see also
id. at 2 (stating that Bill 8-185 “would establish a mandatory 5 year prison term for
anyone convicted of committing a felony while possessing . . . a firearm or
imitation firearm”) (emphasis added). Nor does the legislative history of the PFCV
statute‟s mandatory-minimum sentence provision (which, again, was enacted years
after the YRA) contain any language expressing an intent by the Council to permit
trial judges to exercise their discretion under the YRA to avoid sentencing a youth
offender to at least the PFCV mandatory minimum, or any language reflecting that
21
Thomas v. United States, 602 A.2d 647, 652 (D.C. 1992) (stating that
§ 22-4504 (b) “leaves the sentencing judge no discretion to tailor the sentence to
either the degree of the harm caused by the perpetrator or any other factor”
(emphasis added)).
25
the Council considered the interplay between the PFCV statute and the YRA.22
See generally PFCV Report. Arguments might be made that the same YRA
sentencing discretion should be available to the trial court in sentencing a youth
22
In addition, nothing in the language of the YRA itself suggests that the
sentencing discretion it affords to trial judges generally supersedes statutory
mandatory-minimum sentences. The YRA declares that the trial court “may
suspend the imposition or execution of sentence and place the youth offender on
probation.” D.C. Code § 24-903 (a)(1). Section 24-903 (a)(1) is not unlike D.C.
Code § 16-710 (a) (2012 Repl.), which, describing a trial court‟s general discretion
in sentencing, states broadly, in pertinent part that:
[I]n criminal cases in the Superior Court of the District of
Columbia, the court may, upon conviction, suspend the
imposition of sentence or impose sentence and suspend
the execution thereof, or impose sentence and suspend
the execution of a portion thereof, for such time and upon
such terms as it deems best, if it appears to the
satisfaction of the court that the ends of justice and the
best interest of the public and of the defendant would be
served thereby. In each case of the imposition of
sentence and the suspension of the execution thereof, or
the imposition of sentence and the suspension of the
execution of a portion thereof, the court may place the
defendant on probation under the control and supervision
of a probation officer.
We held in Moorer v. United States, 868 A.2d 137 (D.C. 2005), that the sentencing
discretion conferred by § 16-710 (a) “cannot be applied in carjacking cases.” Id. at
144-45 (concluding that the carjacking statute “require[s] a person convicted
[pursuant to it] to spend at least seven years behind bars, in all cases, with no
exceptions.” (emphasis added)). From that holding, and from the similarity
between § 16-710 (a) and the YRA provision codified at § 24-903 (a)(1), it seems
to follow that § 24-903 (a)(1) is not a sui generis provision that by its very
language trumps any mandatory-minimum sentence.
26
offender convicted of PFCV as is available in concurrently sentencing the youth
offender for having committed robbery (or another crime of violence or dangerous
crime) while armed with a firearm. Indeed, our dissenting colleague suggests that
requiring a mandatory-minimum sentence under the PFCV statute while not
requiring a mandatory minimum for the same defendant under the while-armed
statute seems “nonsensical.” Post at 51. “What we must decide, however, is not
whether the legislature . . . ought to treat the two situations interchangeably, but
whether it has done so.” Edwards v. United States, 583 A.2d 661, 668 (D.C.
1990).
The PFCV Report explains that the PFCV statute was enacted in response to
the “record number of homicides committed with firearms” in 1988 and the
“[c]ontinued increases in homicides and violent assaults . . . attributable to the
increase in the availability of firearms” despite the District‟s having “one of the
most stringent gun control laws in the nation[.]” PFCV Report at 1. The
legislation was intended “to help the District deal with the deadly threat to public
safety posed by persons . . . who commit offenses while armed with . . .
firearms[.]” Id. Thus, the legislators‟ view was that existing legislation
establishing penalties for offenses committed while armed with a firearm was not
27
sufficiently effective and needed “help.”23 The Council passed the legislation
despite an objection that “with respect to crimes of violence, application of a
mandatory minimum sentence of five years is superfluous[.]” PFCV Report at 8
(summary of testimony of Kim A. Taylor, Director, Public Defender Service). In
light of that history, we have no basis for concluding that the trial court here was
plainly in error if it assumed it was required to impose the PFCV mandatory
minimum.24
23
Note, too, that we have declined to treat PFCV and a while-armed-with-a
pistol offense as “the same offense” for double jeopardy purposes. Thomas, 602
A.2d at 650-55.
24
The Council has from time to time indicated awareness of the issue of
whether mandatory-minimum sentences apply to youth offenders, but it has not
spoken to the issue unequivocally as it affects the broad class of offenders eligible
for YRA benefits. For example, the Committee Report to D.C. Law 12-165, the
“Truth in Sentencing Amendment Act of 1998,” states that the effect of the
provision eventually codified at D.C. Code § 24-403.01 (c)(1) (providing for
sentences “for a definite term, which shall not exceed the maximum term allowed
by law or be less than any minimum term required by law”) is to “preserve[]
existing maxima and minima” and “not require or result in any extension or
application of mandatory minimum sentences to categories of offenders, including
persons sentenced under the Youth Rehabilitation Act, to which the mandatory
minima do not apply currently under District of Columbia law.” Committee on the
Judiciary, Report on Bill 12-523 at 9 (Feb. 25, 1998). The reference in the
legislative history to preserving the status quo with respect to “existing maxima
and minima” does not answer the question whether any minima already applied to
offenders sentenced under the YRA.
Likewise, in the CYJAA (“[n]otwithstanding any other provision of law, if
the person committed the offense for which he or she is being sentenced under this
section while under 18 years of age . . . [t]he court may issue a sentence less than
(continued…)
28
In short, appellant‟s argument that the trial court plainly erred in assuming
that he was inescapably subject to the PFCV mandatory-minimum sentence fails.
For that reason, we must uphold appellant‟s sixty-month sentence for PFCV. That
being the case, we must also conclude that appellant is not entitled to relief with
respect to the sixty-month mandatory minimum the trial court believed it was
required to impose for his robbery while armed conviction, because appellant
cannot show that his substantial rights were affected by the (assumed) error.
To be sure, the Supreme Court has stated that “[w]here . . . the record is
silent as to what the [trial] court might have done had it considered the correct
[sentencing] range, the court‟s reliance on an incorrect range in most instances will
suffice to show an effect on the defendant‟s substantial rights.” Molina-Martinez
(…continued)
the minimum term otherwise required by law,” D.C. Code § 24-403.01 (c)(2)(A)),
the Council‟s use of the imprecise term “otherwise required by law” provides no
insight into whether the Council believed that youth offenders eligible for
rehabilitation under the YRA were theretofore generally subject to “minimum
term[s] . . . required by law” (or into whether the Council believed that youth
offenders who are over age 18 have been and remain generally subject to
“minimum term[s] . . . required by law”).
The foregoing provisions do not assist us in answering the question whether
appellant was subject to a mandatory-minimum sentence upon his conviction of
PFCV.
29
v. United States, 136 S. Ct. 1338, 1347 (2016); see also United States v. Head, 817
F.3d 354, 361 (D.C. Cir. 2016) (“In the sentencing context, an error affects a
defendant‟s substantial rights where there is a reasonable likelihood that the
sentencing court‟s obvious errors affected his sentence.” (internal quotation marks
omitted)). That general principle is inapplicable here because the court imposed
concurrent sixty-month sentences for PFCV and robbery while armed. For that
reason, even if we assume that the court plainly erred in assuming that appellant
was subject to the while-armed mandatory minimum, we must conclude that
allowing the sixty-month sentence for armed robbery to stand will not prejudice
appellant, given that he must serve the sixty-month sentence for PFCV.25 For the
same reason, we cannot say that allowing the sentence to stand will seriously affect
25
We also are not persuaded that had the trial court understood it was not
bound by a mandatory minimum, it necessarily would have imposed probation or a
lighter sentence. The court did comment that “in some respect[,] maybe the
mandatory minimum is a little too harsh[.]” But the court also began its remarks
by saying that it “d[id]n‟t see any value going above the mandatory minimum in
this case.” That remark suggests that the court may have been primarily focused
on whether, on the record presented, a sentence greater than the mandatory
minimum was warranted. It is also notable that the court sentenced appellant to a
“guideline compliant” term of thirty months on the ADW charge, thus exceeding
the twenty-four month term urged by the government. That suggests that the court
did not think that either non-incarceration or a low-end sentencing-guideline-
compliant sentence was warranted — a view that we can surmise the court held as
to all of the offenses of which appellant was convicted.
30
the fairness, integrity, or public reputation of the judicial proceedings.26
Accordingly, appellant is not entitled to relief on his sentencing claim.
V.
The parties concur, and we agree, that appellant‟s “convictions for armed
robbery and ADW merge.” See Morris v. United States, 622 A.2d 1116, 1129
(D.C. 1993) (“[A]rmed robbery and assault with a dangerous weapon merge where
both offenses are committed against the same victim as part of the same criminal
incident.”). A remand is necessary for the trial court to vacate appellant‟s ADW
conviction. See Medley v. United States, 104 A.3d 115, 133 (D.C. 2014).
Resentencing is not required, because appellant‟s sentences for these counts are
concurrent. See id.26
See, e.g., United States v. Gjini, 419 Fed. App‟x 4, 6 (2d Cir. 2011) (“The
district court indisputably erred in imposing a 320-month sentence [for a witness
retaliation conviction]. However, because Gjuraj received a concurrent 320-month
sentence on the narcotics distribution charge, Gjuraj fails to show that the error
affected his substantial rights or the fairness, integrity or public reputation of
judicial proceedings.” (internal quotation marks omitted)); United States v.
Mitchell, 398 Fed. App‟x 159, 163-64 (6th Cir. 2010) (explaining that assumed
sentencing error as to three counts “did not seriously affect the fairness of the
judicial proceedings” “because the district court sentenced Mitchell to concurrent
terms on all four counts”).
31
VI.
Wherefore, the judgment of the trial court is affirmed, except that we
remand for the court to vacate appellant‟s ADW conviction.
So ordered.
MCLEESE, Associate Judge, concurring: I join the opinion of the court in its
entirety. I write separately to briefly address the dissent‟s contention that the
division in this case is bound by an earlier holding in Green v. United States, 974
A.2d 248 (D.C. 2009). The opinion for the court concludes to the contrary that the
court in Green simply accepted a concession without ruling on the correctness of
that concession. Ante at 13-14. In large part, the dissent‟s contrary interpretation
of Green rests on the contention that “[p]arties do not, by agreement or concession,
relieve the court of its responsibility to decide questions of law that determine the
proper disposition of a case.” Post at 39-40. Although there is support for that
contention, the topic is more complicated than the dissent suggests. Appellate
courts, including the Supreme Court and this court, often give judgment without
deciding legal issues that might have led to a different disposition of a case. For
example, doctrines such as estoppel, waiver, and forfeiture often lead appellate
32
courts to take as given legal principles that the courts might not have accepted on
the merits if those legal principles had been properly presented for decision.
Reliance on such doctrines does not reflect “abandon[ment of the] judicial role.”
Post at 41. Rather, reliance on such doctrines reflects courts‟ understanding of
limits on the judicial role imposed by considerations of both prudence and
procedural fairness to litigants. See, e.g., Rose v. United States, 629 A.2d 526,
536-37 (D.C. 1993) (under “our adversarial system,” appellate courts generally act
as “arbiters of legal questions presented and argued by the parties before them”)
(internal quotation marks omitted).
In the context of affirmative concessions, this court, like other appellate
courts, frequently renders judgment based on legal conclusions that it assumes
without deciding because they are not contested by the parties. See, e.g., Frey v.
United States, 137 A.3d 1000, 1002 (D.C. 2016) (“The parties in this case,
however, do not dispute that, generally speaking, the Adams Building is a public
building for purposes of the unlawful-entry statute. We accept that premise
without deciding the question.”; reversing judgment). Merger cases are a recurring
example. See, e.g., Bernal v. United States, 162 A.3d 128, 130 n.2 (D.C. 2017)
(“The government concedes that Counts Three and Four, only, merge.
Accordingly, we remand solely for the trial court to vacate appellant‟s conviction
33
for Count Three.”). Moreover, despite the language the dissent cites from the
Supreme Court‟s 1942 decision in Young v. United States, 315 U.S. 257, 258-59,
post at 40, the Supreme Court itself often (although not invariably) reverses or
vacates judgments in criminal cases based on government concessions, without
independently evaluating whether the concession was correct. See, e.g., Nunez v.
United States, 554 U.S. 911 (2008) (per curiam). Even Justice Scalia, who was
critical of reflexively doing that, acknowledged over twenty years ago that “[t]he
practice is by now well entrenched.” Lawrence v. Chater, 516 U.S. 163, 184
(1996) (Scalia, J., dissenting). In any event, the issue in this case is not whether
the court in Green acted permissibly by simply accepting a concession without
independently ruling on the correctness of the concession. Whether permissible or
not, that is in fact what the court did in Green.
Finally, contrary to the assertion of the dissent, the difference between the
outcome of this case and the outcome in Green does not “violate[] the
constitutional principle that similarly situated parties should be treated equally.”
Post at 38. The defendant in Green objected in the trial court and the United States
conceded the validity of his objection on appeal. In the present case, Mr. Briscoe
did not object in the trial court and the United States has contested his claim on
appeal. These important procedural differences mean that the defendant in Green
34
and Mr. Briscoe are simply not similarly situated. See, e.g., United States v.
David, 83 F.3d 638, 643 n.6 (4th Cir. 1996) (“[A] defendant who objects to an
alleged error . . . is not similarly situated to a defendant who did not . . . .”)
(citation and internal quotation marks omitted).
Separate statement by THOMPSON, Associate Judge: Our dissenting
colleague laments that the result of the majority‟s disposition of this case is that
similarly situated parties — appellant and the defendant in Green — have not been
treated equally. If what our colleague means is that the trial court in Green on
remand exercised sentencing discretion while the trial court here did not, I
emphasize that it is not entirely clear in this case that the trial judge thought he was
bound to impose mandatory-minimum sentences and therefore failed to exercise
sentencing discretion as to the while-armed and PFCV offenses. The court
observed that mandatory-minimum sentences, which it characterized as an
expression of the sentence the Council deemed “appropriate under the
circumstances,” made sentencing “difficult.” At least arguably, the court would
not have regarded sentencing as difficult if it thought all it had to do was impose
35
mandatory-minimum terms of incarceration. Thus, it is not clear that appellant,
unlike Green, was deprived of the benefit of trial court sentencing discretion.1
I also think it overstates the case to say that appellant and Green are
“similarly situated” defendants entitled to “equal treatment.” Post at 38. Green
had a gun in his waistband at the time of his arrest for possession with intent to
distribute drugs, and there was no evidence that he had brandished or used the
weapon to assault anyone. 974 A.2d at 251. On resentencing, he was sentenced to
time served, or about three years. Appellant, by contrast assaulted and robbed the
victim at gunpoint and pulled the trigger. He had “greater engagement with the
weapon,” to use our colleague‟s language. Post at 51 n.12. In the trial court‟s
language, appellant made the victim‟s life “very difficult.” Appellant‟s sentence of
60 months for conduct that had “a really hard impact” on the victim does not
support concern about his having to serve an unequal sentence.
Our dissenting colleague also emphasizes the statutory language that it is
when the trial court finds that a youth offender “will not derive benefit from
1
Indeed, if what Judge Ruiz calls the “accepted view, as reflected in the
Voluntary Sentencing Guidelines Manual” was that Green decided the sentencing
issue presented in this case,” post at 46 n.7, that is all the more reason to think the
trial judge in this case thought he had sentencing discretion.
36
treatment under [D.C. Code § 24-903 (b) (providing for “treatment and
supervision” up to the “maximum penalty of imprisonment otherwise provided by
law”)]” that the court “may sentence the youth offender under any other applicable
penalty provision.” D.C. Code § 24-903 (d). The point is somewhat beyond the
point because, according to a September 8, 2017, report by the Criminal Justice
Coordinating Council for the District of Columbia (“CJCC”) entitled “The
District‟s Youth Rehabilitation Act: An Analysis,” “at present, there are no
programs that are specifically developed to supervise or treat those sentenced
under the YRA.” September 8, 2017, CJCC Report at 34.
RUIZ, Senior Judge, dissenting in part: I would remand the case for
resentencing by the trial court to exercise discretion under the D.C. Youth
Rehabilitation Act, D.C. Code § 24-903 (2012 Repl.) (YRA), as we did in Green v.
United States, 974 A.2d 248 (D.C. 2009). The trial court made a determination
that appellant would benefit from sentencing under the YRA, but believed that a 5-
year minimum sentence was required by law for conviction for a while-armed
offence, D.C. Code § 22-4502 (a) (2012 Repl.), and PFCV, D.C. Code § 22-4504(b) (2012 Repl.). This was a clear error. The YRA allows the court to impose a
sentence less than the otherwise mandatory minimum, if the trial judge deems that
37
a youth offender would benefit from a lesser sentence. In this case, there is reason
to believe the trial court would have exercised that discretion to appellant‟s benefit.
The majority‟s decision to deny a remand for resentencing means that the appellant
in this case is being treated differently than the appellant in Green. 974 A.2d at
262. For these reasons I conclude that the trial court plainly erred in imposing the
mandatory minimum sentences rather than exercising discretion in sentencing. A
remand that will allow the trial court to resentence unfettered by the mistaken
belief that mandatory minimum sentences must be imposed is in order. I,
therefore, dissent from the majority‟s decision that denies appellant‟s request for a
remand for resentencing and affirms the imposition of mandatory minimum
sentences.1
A remand to permit the trial court to exercise YRA discretion falls squarely
within our holding in Green, 974 A.2d at 262, n.43, where we remanded for
resentencing, noting that the mandatory minimums for while-armed offenses (for a
first time offender) and PFCV need not be imposed if the judge believes sentencing
a youth offender under the YRA is appropriate. In Green, as is the case here, the
1
I join the remainder of the opinion of the court rejecting appellant‟s claims
under Brady and Rule 16 and affirming the convictions, with a remand for merger
of the ADW conviction.
38
trial court believed it was required to impose mandatory minimums, even though
sentencing was done under the YRA. Id. This court affirmed the convictions on
appeal, but remanded the case for resentencing because “the five-year mandatory
minimum terms . . . do not have to be imposed when sentencing under the
DCYRA.” Id. To come to a contrary disposition in this case is directly at odds
with our disposition in Green and thus also contrary to our obligation to follow
precedent established by a prior division of this court, as required by M.A.P. v.
Ryan, 285 A.2d 310, 312 (D.C. 1971). It also violates the constitutional principle
that similarly situated parties should be treated equally, as the appellant in Green
and appellant here were both youth offenders, convicted of the same offenses,
where the trial court decided to sentence under the YRA. See Griffith v. Kentucky,
479 U.S. 314, 322-23 (1987). Yet only one is accorded resentencing for the
exercise of trial court discretion under the YRA, while the other is denied the
exercise of that judicial discretion and subjected to two mandatory minimum
sentences.2
2
Appellant requested a “lenient” “sentence,” the “minimum permissible
sentence pursuant to the YRA,” but did not expressly challenge the trial court‟s
statements that mandatory minimums were required. That circumstance means
that in this case appellant must meet the strictures of plain error review to warrant
relief. Once appellant has hurdled those requirements, as I conclude he has, he is
entitled to receive a sentence that is the result of individualized judicial discretion
on a par with other youth offenders sentenced under the YRA.
39
The majority contends that Green should not be given precedential weight
because there the court “merely accepted” the government‟s “concession”
regarding the proper interpretation of the relevant statutes rather than deciding the
issue for itself. See ante at 13-14. To be clear, the court in Green did not say that
it was acceding to the government‟s concession; nor did the court say it was
avoiding deciding the issue, as we sometimes do, because it was unnecessary to do
so. See, e.g., Ferguson v. United States, 157 A.3d 1282, 1290 n.2 (D.C. 2017).3
Instead, what the Green court did was to remand for resentencing without requiring
the imposition of mandatory minimums after it had received full briefing on the
dispositive issue of statutory interpretation. The court indicated that it understood
the government had taken a contrary position in the trial court and, upon further
reflection, had come around to the appellant‟s view on the proper interpretation of
the statutes. The fact that the government conceded on appeal that its initial
interpretation was erroneous does not mean that this court accepted that concession
unquestioningly. Parties do not, by agreement or concession, relieve the court of
3
The court has other means to signal that a decision does not have
precedential effect. For example, it may decide not to publish its opinion and
instead issue a Memorandum Opinion and Order. See D.C. App. R. 28 (g)
(providing that unpublished opinions may not be cited to the court except for
purposes of law of the case, res judicata, collateral estoppel and criminal and
disciplinary proceedings involving the same person). Green is a published opinion
of the court.
40
its responsibility to decide questions of law that determine the proper disposition of
a case. As the Supreme Court has observed, exercise of this judicial duty is
particularly important in criminal cases:
The public trust reposed in the law enforcement officers
of the Government requires that they be quick to confess
error when, in their opinion, a miscarriage of justice may
result from their remaining silent. But such a confession
does not relieve this Court of the performance of the
judicial function. The considered judgment of the law
enforcement officers that reversible error has been
committed is entitled to great weight, but our judicial
obligations compel us to examine independently the
errors confessed. See Parlton v. United States, 64 App.
D.C. 169, 75 F.2d 772 [(1935)]. The public interest that
a result be reached which promotes a well-ordered
society is foremost in every criminal proceeding. That
interest is entrusted to our consideration and protection as
well as that of the enforcing officers. Furthermore, our
judgments are precedents, and the proper administration
of the criminal law cannot be left merely to the
stipulation of parties. Cf. Rex v. Wilkes, 4 Burr[.] 2527,
2551, 98 Eng. Rep. 327; State v. Green, 167 Wash. 266,
9 P.2d 62 [(1932)].
Young v. United States, 315 U.S. 257, 258-59 (1942).
In order to remand for resentencing in Green, this court had to decide that as
a matter of statutory interpretation the trial court was not bound to impose
mandatory minimums and could lawfully exercise discretion under the YRA in
sentencing youth offenders for a first-time while-armed offense, D.C. Code § 22-
4502, and PFCV, D.C. Code § 22-4504 (b). This ruling was an “integrated
41
component” and “essential to the outcome” and is therefore a holding binding on
us. Parker v. K & L Gates, LLP, 76 A.3d 859, 874 (D.C. 2013) (Ferren, S.J.,
concurring); see Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996) (“When an
opinion issues for the Court, it is not only the result but also those portions of the
opinion necessary to that result by which we are bound.”); 18 JAMES WM. MOORE,
ET AL., MOORE‟S FEDERAL PRACTICE § 134.04 [5] (3d ed. 1999) (noting that stare
decisis “may extend beyond issues that are explicitly decided to those which are
actually decided by necessary implication”).
If, as the majority contends, the Green court did not decide the legal issue of
statutory interpretation but merely “went along” with the parties, the court would
not only have failed in its responsibility to exercise independent judgment on a
question of law but also here acted beyond its authority by remanding so that the
trial court could take a judicial action (exercise sentencing discretion under the
YRA) it had no legal authority to do (because it was bound to impose mandatory
minimum sentences).4 There is no reason, however, to assume that this court
abandoned its judicial role in Green. The parties in the Green case had fully
4
This is the criticism of the court‟s prior decision leveled in United States v.
Garcia-Caraveo, 586 F.3d 1230, 1234 n.2 (10th Cir. 2009), cited by the majority
opinion. See ante at 13 n.7.
42
briefed the issue concerning the application of the mandatory minimums for while-
armed and PFCV offenses when sentencing youth offenders under the YRA. A
question of law was squarely presented and the court was well aware of the
arguments on the merits of both sides. The court decided the issue by remanding
for resentencing without imposition of mandatory minimums.
Whether a decision is binding is recognized not by the number of words
used by the court in arriving at its disposition, but by whether the “issue constituted
„a statement not addressed to the question before the court or necessary for its
decision.‟” Albertie v. Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C.
1994) (quoting United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988)). In
Crawley, Judge Posner identified certain hallmarks of non-binding dicta, noting
that dicta is “unnecessary to the outcome of the earlier case,” that because it is “not
grounded in the facts of the case . . . the judges may therefore have lacked an
adequate experiential basis for it,” and “that the issue addressed in the passage was
not presented as an issue, hence was not refined by the fires of adversary
presentation.” 837 F.2d at 292-93.
43
None of these hallmarks of dicta is present in the Green case. The
conclusion that sentencing under the YRA allows for judicial discretion when
sentencing a youth offender for violations of D.C. Code §§ 22-4502 (a) and 4504
(b), even when mandatory minimums apply to adults, was necessary for the court‟s
ultimate disposition. Unless it decided that “the five-year mandatory minimum
terms required by D.C. Code §§ 22-4502 (a) and 4504 (b) do not have to be
imposed when sentencing under the DCYRA,” Green, 974 A.2d at 262, n.43, the
court would have simply affirmed. Instead, it remanded for resentencing without
those constraints. Id. at 262.
Nor can it be said that analysis of the YRA‟s impact on minimum sentences
was not grounded in the facts or properly presented as an issue in Green. The
record revealed that the trial court believed mandatory minimums had to be
imposed. On appeal, the defendant presented the question to this court, countering
arguments the government made in the trial court, and requested a remand for
resentencing by the trial court free of the constraint of having to impose the
mandatory minimums. For its part, the government laid out, in over seven pages of
its brief to the court, the arguments that supported imposition of mandatory
minimum sentences. Ultimately, however, the government came to the following
44
legal conclusion with respect to the proper interpretation of the relevant statutory
provisions:
In sum, while the government argued below and
continues to believe that an argument can be made that
the mandatory minimum terms in D.C. Code §§ 22-4502(a) and -4504 (b) must be applied when imposing a
period of incarceration under the DCYRA, the
government now concedes that the several statutory
provisions and legislative history discussed above create
sufficient ambiguity so as to render application of the
rule of lenity appropriate. As a consequence, the
government does not oppose appellant‟s request for a
remand for re-sentencing.
Government‟s Br. in Green, 38. The fact that the government came to agree that
Green had the better of the argument hardly meant that the issue lacked “the fires
of adversary presentation.” A request for remand for resentencing was before the
court and both sides of the statutory interpretation issues that determined whether
resentencing was required were fully briefed by both parties. The court was made
aware of the reasoned basis for the conclusion that mandatory minimums do not
apply, as well as of the arguments that supported the government‟s position to the
contrary taken before the trial court. As discussed, this court would have been
acting in contravention of a statutory mandate by ordering a remand for the
exercise of discretion in resentencing under the YRA unless it thought that
mandatory minimums did not apply. Perhaps it would have been preferable for the
45
court to give a fuller explanation for its conclusion, but it would not be the first
time that an opinion of the court is not as extended as one would like or as is
usually the case. Lack of a full exposition does not convert a legal conclusion
necessary to the disposition into non-binding dicta. “[N]ot all judicial decisions
are crystal clear about the essentials inherent in the outcome . . . . [what is expected
is] language from the court that communicates a clear understanding of the
ingredients „necessary‟ to every „holding.‟” Parker, 76 A.2d at 874 (Ferren, S.J.,
concurring).5 In Green, the court communicated that resentencing was warranted
because the trial court had acted under the erroneous belief it was required to
impose mandatory minimums. Green, 974 A.2d at 262 n.43.6
5
There is a more expansive view. See Parker, 76 A.3d at 877-78(McLeese, J., concurring) (“In my view . . . it is not accurate to say that only
rulings essential to the outcome can constitute holdings.”).
6
The majority‟s reliance on language found in Daly v. District of Columbia
Dep’t of Emp’t Servs., 121 A.3d 1257, 1262 (D.C. 2015), that a prior decision is
not a holding if based on a “concession” overstates the case. The dispute over
statutory interpretation in the Daly case was unnecessary to the disposition in the
prior case, where imposition of a late payment penalty fee would have been
affirmed because the compensation payment was late regardless of which of two
possible statutory interpretations of the term “becomes due” (the issue decided in
Daly) was adopted by the court. See Orius Telecomms., Inc., v. District of
Columbia Dep’t of Emp’t Servs., 857 A.2d 1061, 1070-71 (D.C. 2004). The
“concession” in the prior case was made by counsel during oral argument on
appeal and pertained to a factual matter — when notice of an order was received
by the employer/insurer — and not on an issue of statutory interpretation that was
presented to the court. See id. at 1063 (referring to “the patchy record before us”
and “an important concession” made during oral argument); id. at 1064 (noting the
ALJ‟s finding that employer/insurer had not “received proper notification of the
(continued…)
46
The majority‟s conclusion that Green is not binding precedent deviates from
the accepted view, as reflected in the Voluntary Sentencing Guidelines Manual,
that Green decided the sentencing issue presented in this case.7 It is also worth
(…continued)
compensation order”); id. at 1070-71 (noting that the legal issue was “never
expressly stated by either the ALJ or the [DOES] director” and that the court was
not thwarted in deciding the case “by the absence of express findings nor the
seemingly unsupported assumptions” in the agency‟s decisions in light of
counsel‟s late concession that he actually received the compensation order,
triggering the statutory payment period). An essential principal of stare decisis is
that the previous decision concerns an issue of law, not fact. See MOORE‟S
FEDERAL PRACTICE § 134.05 [3]. In Daly the court was squarely presented with
the issue of statutory interpretation that lurked, but was not decided by the court, in
Orius in light of counsel‟s factual concession. Daly, 121 A.3d at 1262 (noting that
“we did not explicitly answer,” “did not clearly decide,” “we have no problem in
now formally holding.”) As discussed in the text, in Green the issue of statutory
interpretation, a legal issue for the court to decide, was squarely presented, fully
briefed, and necessarily underpinned the court‟s disposition remanding the case for
resentencing. In short, we are not in a Daly-Orius situation.
7
During each of the eight years since Green was decided in 2009, the
Voluntary Sentencing Guidelines Manual has stated that “[a] youth offender
sentenced under the Youth Rehabilitation Act (D.C. Code § 24-901 et seq.) for one
of the offenses shown here in italics [i.e., first-time while-armed offenses and
PFCV] need not be sentenced to a mandatory minimum term.” (underlining in
original). The Manual cites Green as authority. VOLUNTARY SENTENCING
GUIDELINES MANUAL § 3.6 (The District of Columbia Sentencing and Criminal
Code Revision Commission 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016).
The 2017 Manual adds a citation to Peterson, which came to a different conclusion
with respect to the mandatory minimum for carjacking, see ante at 18, and makes
the point that with respect to “most offenses that require a mandatory minimum”
— the nine offenses with mandatory minimums remaining after this court‟s
decisions in Green and Peterson — this court has “not decided whether a judge
(continued…)
47
emphasizing that the majority does not conclude today that Green‟s disposition
remanding for resentencing under the YRA was legally incorrect. To the contrary,
as Judge Thompson‟s opinion cogently lays out, the plain statutory language of the
while-armed statute, D.C. Code § 22-4502 (e)(1), and its legislative history
strongly support that the mandatory minimum is not required for a first-time while-
armed youth offender sentenced under the YRA. See ante at 21-23. The
majority‟s sole reason for affirming is that even if the lower court erred in adhering
to the mandatory minimum for the while-armed offense, the error is not as clear
with respect to PFCV. See ante at 27-28. As a result, imposition of the mandatory
minimum for PFCV was not an obvious error, and because of the concurrent nature
of the identical sentences imposed for the while-armed and PFCV offenses, the
sentencing error with respect to the while-armed offense does not affect appellant‟s
substantial rights. See ante at 28-29, 30 n.26.
(…continued)
who imposes a sentence pursuant to the [YRA] may suspend all or part of the
sentence or impose a prison term that is shorter than the mandatory term.” The
Sentencing Commission expresses no view on the subject. VOLUNTARY
SENTENCING GUIDELINES MANUAL § 3.6 (The District of Columbia Sentencing and
Criminal Code Revision Commission 2017). It thus seems quite clear to the
Sentencing Commission that Green decided the issue with respect to first-time
while-armed and PFCV offenses. It should have been equally clear to the trial
court in this case.
48
I disagree with the premise about the PFCV mandatory minimum that
underlies this reasoning. As the majority observes, the PFCV statute, unlike the
while-armed statute, does not on its face link to the YRA by including an
exemption to the mandatory minimum for first-time youth offenders. See D.C.
Code § 22-4504 (b). But the task of judicial interpretation requires that the PFCV
statute be read in harmony with the YRA. The majority is too quick to dismiss the
importance of the discretion granted to sentencing judges by the YRA, arguing that
it is not sui generis and therefore should not supersede the mandatory minimum for
PFCV. The majority equates the YRA provision dealing with probation, D.C.
Code § 24-903 (a)(1), to the general discretion to grant probation afforded to
judges when sentencing adults under D.C. Code § 16-710, which has been held not
to override mandatory minimums required by statute. See ante at 25 n.22. There
are several problems with this reasoning. First, the YRA, enacted in 1985,
subsequent to the general probation authority in D.C. Code § 16-710, enacted in
1963, expressly provides that the “sentencing alternatives” of the YRA are “in
addition to the options already available to the court.” D.C. Code § 24-903 (f).8
The statutory language of the YRA therefore precludes the notion that it is merely
repeating a sentencing option already available to the trial court for non-youth
8
D.C. Law No. 6-69, § 4, 32 DCR 4587 (1985); 77 Stat. 559, Pub. Law 88-
241, § 1 (1963).
49
offenders. Second, this comparison is faulty because it overlooks that the
“sentencing alternatives” of the YRA are not limited to probation and depend on
whether the judge has determined that a youth offender will “derive benefit” from
sentencing under the YRA. The YRA provides that when a judge determines that a
youth offender would derive benefit from YRA sentencing but believes the youth
offender should be “committed” (not placed on probation), the judge “may”
impose a sentence “for treatment and supervision” up to the “maximum penalty of
imprisonment otherwise provided by law.” D.C. Code § 24-903 (b). It does not
say that the judge must impose a mandatory minimum otherwise provided by law.
It is only when a judge finds that a youth offender “will not derive benefit from
treatment under subsection (b),” that the court “may sentence the youth offender
under any other applicable penalty provision.” D.C. Code § 24-903 (d) (emphasis
added).9 The trial judge in this case did not make a determination that appellant
would “not derive benefit” freeing him to impose “any other applicable penalty
provision.” Instead he found the opposite, that appellant would derive benefit, so
that the applicable provision is therefore § 24-903 (b), which allows sentencing up
9
Based on the different language in sections 24-903 (b) and (d), I, therefore,
disagree with the majority‟s assessment that “nothing in the language of the YRA
itself suggests that the sentencing discretion it affords to trial judges generally
supersedes statutory mandatory minimum sentences.” Ante at 25 n.22. A
comparison of the language of these subsections of the YRA suggests precisely
that, in the case where the trial judge determines that a youth offender would
derive benefit.
50
to the maximum, but does not require a minimum sentence. Such leeway follows
this court‟s interpretation that a core purpose of the YRA is “to give the court
flexibility in sentencing a youth offender according to his or her individual needs.”
Holloway v. United States, 951 A.2d 59, 64 (D.C. 2008); see Veney v. United
States, 681 A.2d 428, 434-35 (D.C. 1996) (en banc). To require the imposition of
a mandatory minimum prison sentence when a judge has determined that a youth
offender would benefit from rehabilitative sentencing undermines the judicial
discretion and flexibility at the heart of the YRA. As the government argued in
Green, any statutory ambiguity as to whether mandatory minimums apply to youth
offenders sentenced under the YRA should be resolved against mandatory
minimums by application of the rule of lenity. See Holloway, 951 A.2d at 65(applying the rule of lenity in interpreting the YRA where there are “two
reasonable constructions”) (quoting United States Parole Comm’n v. Noble, 693
A.2d 1084, 1103-04 (D.C. 1997) aff’d on reh’g, 711 A.2d 85 (D.C. 1998) (en
banc) (“The rule of lenity . . . can tip the balance in favor of criminal defendants
only where, exclusive of the rule, a penal statute‟s language, structure, purpose and
legislative history leaves its meaning genuinely in doubt.” (internal quotation
marks omitted))).10
10
As the majority recognizes, the Council is aware of the issue of whether
mandatory minimums apply to youth offenders. See ante at 27 n.24. I read the
(continued…)
51
Finally, there is an anomaly in concluding that the while-armed statute does
not require a mandatory minimum for first-time youth offenders, but the PFCV
statute does. The incongruity arises because the maximum sentences for the two
offenses makes it evident that while-armed offenses are deemed to be more serious
than PFCV offenses, as the former may be punished by significantly greater
periods of imprisonment, up to life without possibility of parole, and the latter up
to 15 years.11 When interpreting statutes, we should do so contextually, with a
view to a coherent whole, see Galbis v. Nadal, 626 A.2d 26, 32, n.10 (D.C. 1993),
and avoid interpretations that would result in nonsensical results. Moten v. United
States, 81 A.3d 1274, 1277 (D.C. 2013) (“[I]f a literal interpretation of the statute
would lead to an absurd result, the court will follow the legislative intent despite
literal wording.” (internal quotation marks omitted)). It makes little sense to
(…continued)
Council‟s comments and actions as indicating that they do not apply. But, at a
minimum, the comments add to the ambiguity surrounding the question, which
calls for application of the rule of lenity.
11
In the case of a while-armed offense, an enhancement from 30 years to
life imprisonment without possibility of parole may be added to the sentence,
depending on the underlying crime. D.C. Code § 22-4502 (a). The maximum
sentence for PFCV is much less, 15 years, in addition to the sentence for the
accompanying “crime of violence.” D.C. Code § 22-4504 (b).
52
exempt appellant from a mandatory minimum for a while-armed offense yet
require it for PFCV. 12
Having decided that we are bound to follow the court‟s correct decision in
Green, it is easy to conclude that appellant‟s substantial rights were affected by the
trial court‟s failure to recognize that discretion was permitted in sentencing him as
a youth offender under the YRA. That showing, of a “reasonable likelihood” that
the error affected the outcome, is “slightly less exacting” in the sentencing context
than is required for trial errors. United States v. Terrell, 696 F.3d 1257, 1263
(D.C. Cir. 2012); United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)
(referring to a “somewhat lighter” burden of showing prejudice in the sentencing
context). That burden is met in this case, where the record makes clear that the
trial judge made a finding that appellant would benefit from rehabilitative
treatment, noting that because sentencing was done under the YRA, appellant had
12
The majority dismisses this glaring sentencing disparity, without any
attempt at a reasonable or logical explanation. We have previously stated that the
disparity in maximum sentence between the two offenses is a reflection of the fact
that the while-armed statute is “very broad” in scope whereas conviction for PFCV
may be based on less evidence, of possession including constructive possession,
while conviction for a “while-armed” offense requires evidence of greater
engagement with the weapon. See Thomas v. United States, 602 A.2d 647, 651,
654 (D.C. 1992). This further supports the notion that if the mandatory minimum
sentence for while-armed offenses does not supersede the YRA, neither does the
mandatory minimum for PFCV.
53
the ability to remove the conviction from his record after successfully completing
the conditions of supervised release. However, the record is also clear that the
judge believed his hands were tied when it came to sentencing and that he had to
impose a mandatory minimum because “[i]t is what [the] [C]ity [C]ouncil said is
appropriate under the circumstances.” The trial judge expressed his discomfort
with that requirement, commenting that sentencing was made “difficult” because
of the minimum sentences. He commented that “in some respect maybe the
mandatory minimum is a little too harsh,” but continued to indicate his lack of
choice by noting “but it is the mandatory minimum.” Upon examining the record,
there is a solid foundation to conclude that not only did the trial judge not exercise
discretion and imposed the mandatory minimum that he thought was statutorily
required, but also that he very well might have exercised discretion to impose a
lesser sentence had he known it was permitted. To the extent that we do not know
for certain what the trial judge would have done if he thought he could depart from
the mandatory minimums, remanding for resentencing would allow the judge to
exercise the discretion afforded by the YRA.
Finally, a failure to exercise discretion in this case, contrary to the mandate
of the YRA, and contrary to the disposition in Green, would “seriously affect[] the
fairness, integrity, or public reputation of judicial proceedings.” Lowery v. United
54
States, 3 A.3d 1169, 1173 (D.C. 2010) (internal quotation marks omitted); see
United States v. Olano, 507 U.S. 725, 732 (1993). As the District of Columbia
Circuit has held in the analogous area where a sentencing judge imposed a
sentence pursuant to the erroneous belief that the Sentencing Guidelines are
mandatory and must be applied, the fourth prong is met “whenever the third —
prejudice to substantial rights — exists.” United States v. Gomez, 431 F.3d 818,
822 (D.C. Cir. 2005); Terrell, 696 F.3d at 1264 (same, where sentencing judge
imposed sentence under erroneous belief that certain conditions had to be met to
impose a below-Guidelines sentence). In this case, there is further cause to be
concerned that the “fairness, integrity and public reputation” of this court‟s
proceedings will be affected if the same relief afforded the youth offender in Green
is not accorded to appellant. See M.A.P., 285 A.2d at 312.
For these reasons I would remand the case for resentencing.