US v. Molignaro

Filing

OPINION issued by Kermit V. Lipez, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Jeffrey R. Howard, Appellate Judge. Published. [10-1320]

Case: 10-1320

Document: 00116229378

Page: 1

Date Filed: 07/06/2011

Entry ID: 5563059

United States Court of Appeals
For the First Circuit
No. 10-1320
UNITED STATES
Appellee,
v.
ERIC MOLIGNARO,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]

Before
Lipez, Circuit Judge,
Souter, Associate Justice,*
and Howard, Circuit Judge.
Miriam Conrad for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

July 6, 2011

*

The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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SOUTER, Associate Justice.

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Entry ID: 5563059

In 2005, Eric Molignaro pleaded

guilty to possession of child pornography and was sentenced to six
months in prison and 36 months of supervised release, the latter
subject to conditions intended to minimize the apparent risk of his
sexual impropriety with children.

In 2008, the district court

tightened the conditions, which, in 2010, Molignaro was found to
have

violated

by

lying

to

his

probation

officer

about

his

activities and by failing to take part in a course of therapy for
sex offenders, after being suspended for lying to those conducting
the course.
Acting under 18 U.S.C. § 3583(e), the district court revoked
the order for supervised release and resentenced the defendant.
Federal advisory sentencing guidelines recommended imprisonment of
3 to 9 months after such a violation, but the district court
ordered 22 months (followed by further supervised release).

The

court imposed the longer prison sentence so that Molignaro would
have ample time to take part in a course of sex therapy at a nearby
federal prison (Devens) that could run for up to 18 months, and
although the judge did not state the period he would have imposed
in the absence of the treatment program, he did say that 9 months
would have

been

too

short

in

light of

what

he

found

to

be

Molignaro's choices to go where children were present and the risk
of untoward behavior was great.

Molignaro objected that setting

the imprisonment term with the goal of providing therapy was error

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as a matter of law, and that in any case 22 months was unreasonably
long. We hold that the resentencing court's objective of tailoring
the length of imprisonment to provide adequate time for treatment
was barred by statute, and we vacate the sentence and remand for
resentencing.
Any criminal sentence must bear a fair relationship to the
objectives set out in 18 U.S.C. § 3553(a), which include the
provision of "needed . . . medical care, or other correctional
treatment in the most effective manner," § 3553(a)(2)(D).

But

sentencing alternatives include probation, supervised release and
imprisonment, and, as to the last, 18 U.S.C. § 3582(a) provides
that a sentencing court must recognize "that imprisonment is not an
appropriate means of promoting correction and rehabilitation."

A

cognate provision addressed to the Sentencing Commission leaves no
doubt about what Congress meant:
The Commission shall insure that the guidelines reflect the
inappropriateness

of

imposing

a

sentence

to

a

term

of

imprisonment for the purpose of rehabilitating the defendant
or

providing

vocational

the

defendant

training,

medical

with
care,

needed
or

educational

or

other correctional

treatment.
28 U.S.C. § 994(k).1

1

At Molignaro's resentencing after revocation of supervised
release, his counsel called the court's attention only to § 994(k),
not to § 3582(a), but the judge made it clear that he understood
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Where § 3582(a) applies, then, a sentence of imprisonment may not
be "impos[ed] or lengthen[ed] . . . to promote an offender's
rehabilitation." Tapia v. United States, No. 10-5400, slip op. at
12 (U.S. June 16, 2011).

The question is whether the veto on

pegging sentence length to treatment opportunities for prisoners
applies beyond the paradigm circumstance of the initial sentencing
after a conviction.
Some courts have said no and have emphasized the language of
§ 3582(a) that regulates considerations "in imposing a term of
imprisonment," just as § 994(k) tells the Sentencing Commission to
make sure that treatment opportunities are not a proper object
"when imposing a sentence to a term of imprisonment." These courts
have found the limitation inapposite to resentencing after revoking
supervised release because the governing statute in that context
speaks not of "imposing . . . imprisonment," but of a court's
option to "require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for the
offense that resulted in such term of supervised release without
credit for time previously served on post release supervision," 18
U.S.C. § 3583(e).

See United States

v. Tsosie, 376 F.3d 1210,

1215 & n.4 (10th Cir. 2004); United States v. Anderson, 15 F.3d.
278, 282 & n.4 (2d Cir. 1994).

But we think that other related

the objection, which doubtless calls for full-dress de novo, not
just plain error, review.
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language bars any inference that Congress was limiting the scope of
§ 3582(a) simply by speaking of "requir[ing] . . . [service] in
prison" on revoking supervised release instead of
imprisonment,"
imprisonment

for
on

18

U.S.C.

§

post-revocation

3583(h)

"imposing . . .

refers

resentencing

as

to

ordering

"impos[ing]"

imprisonment.
Nor do we think it is significant that § 3583(e), providing
for revocation of the supervised release term of the original
sentence, directs that the later court may consider the need for
treatment as a proper object of sentencing, as listed in § 3553(a).
One of the options on revocation of the original release term is
imposition of a new term of supervised release in the superceding
sentence, which thus precludes any inference that treatment must
necessarily be a proper object of any imprisonment that may be
imposed on resentencing.
There is, however, one drafting feature that works in favor of
the

government's

position,

and

supports

the

district

judge's

assumption, that a need for treatment can justify a resentence to
imprisonment beyond the Guidelines range.

It is simply that

§ 3583(e), authorizing revocation of the original release order,
provides for resentencing with the objectives set out in § 3553(a),
including a prison term as long as the authorized statutory release
period, but it does not contain the caveat that imprisonment is not
an acceptable means of providing corrective or rehabilitative

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treatment.

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Thus, a textual contrast.

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When § 3582(a) tells a court

to sentence in order to realize the objectives of § 3553(a), (which
include rehabilitation), it instructs that imprisonment is not the
proper

setting

to

realize

a

treatment

objective.

But

when

§ 3583(e) tells a court that it may revoke an earlier release order
and sentence again, including imposing imprisonment, the limitation
is

absent.

The

difference

in

drafting

at

least

raises

the

possibility of interpreting the latter section under the rule that
a textual difference between legislative provisions addressing
closely related subject matter probably points to a difference in
the results intended.

See Citizens Awareness Network, Inc. v.

United States, 391 F.3d 338, 346 (1st Cir. 2004) ("Congress's use
of differential language in various sections of the same statute is
presumed to be intentional and deserves interpretive weight.").
Two reasons support the position that this apparent, technical
leeway to imprison to provide treatment after revoking an earlier
release order is consistent with congressional understanding.
First, the dog didn't bark.

The issue here has been litigated in

other circuits for seventeen years now, and up to this time the
courts have been unanimous in holding the government's way.2

2

Yet

See United States v. Anderson, 15 F.3d 278, 282-83 (2d Cir.
1994); United States v. Doe, 617 F.3d 766, 773 (3d Cir. 2010);
United States v. Giddings, 37 F.3d 1091, 1097 (5th Cir. 1994);
United States v. Jackson, 70 F.3d 874, 880-81 (6th Cir. 1995);
United States v. Tsosie, 376 F.3d 1210, 1217 (10th Cir. 2004);
United States v. Brown, 224 F.3d 1237, 1239-40 (11th Cir. 2000);
see also United States v. Crudup, 461 F.3d 433, 440 (4th Cir.
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Congress has not seen fit to amend § 3583(e), and for that matter
the Sentencing Commission, which is presumably more agile than
Congress, has likewise taken no action through its regulatory
power.

Even though inferences of affirmative Congressional intent

in the original legislation (or about the Commission's view of it)
may

not

enjoy

deductive

certainty,

inferring

a

legislative

understanding consistent with such lengthy silence in the face of
the unanimous judicial conclusion over the years would, without
more, seem fair.
A further reason for thinking that the judicial results to
date may have been faithful to what Congress had in mind may be put
rhetorically: why would Congress have wished to deny a court the
authority to provide an opportunity for corrective treatment in
prison, once a defendant has squandered the chance for treatment on
release?

The conditions of prison life may well work against

effective treatment there, but at the stage of revocation and
resentencing the preferable setting of supervised release is a
proven failure.

Would it not be sensible to permit a final try at

treatment

if

even

prison's

circumstances

are

comparatively

unpromising, once a defendant has shown that attempting to treat
outside will not work?

2006); United States v. Abeita, No. 10-2478, 2010 WL 4366993, at *4
(7th Cir. Nov. 2, 2010); United States v. Thornell, 128 F.3d 687,
688 (8th Cir. 1997).
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We will be candid to say that if we were to stop here we would
hold that the position taken up to now by the courts of appeals is
the better view, and would add one more circuit to the list in
support of the government's view.

But there is yet another

consideration, and although Molignaro has not argued it, the
Supreme Court has relied heavily upon it in its recent decision in
Tapia on the application of § 3582(a) to initial prison sentences.
Tapia

held

that

the

caution

against imprisonment for

rehabilitation is a prohibition not only to a decision to commit
for that purpose, but to order a longer, rather than shorter term
of any commitment in order to provide adequate time for a prison
treatment course.

The Court relied not only on the text of

§ 3582(a) and that of the directive to the Sentencing Commission in
§ 994(k), but also on a parallel indicator of congressional intent:
the absence of any authority to the sentencing court either to
assign a prisoner to a prison where the desired treatment or
training is available (that decision being committed to the Bureau
of Prisons), or to require the prison to enroll a particular
prisoner in the rehabilitation scheme, or to order the prisoner to
take part in it.

Tapia, slip op. at 10.

By way of contrast, the

sentencing court is invested with compulsory authority when a
course of rehabilitation or treatment is the object of a sentence
of probation or supervised release.

Id.

The pertinence of this

consideration when interpreting the statute is underscored in this

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very case: the district court recommended that the Bureau of
Prisons assign the defendant to a specific prison where therapy for
sex offenders was available, and set the length of sentence to give
ample time for a course of treatment that could run for 18 months,
but the Bureau placed Molignaro at a different prison with no
treatment program.

The prisoner is left with the time to serve but

no therapy even if he would be willing to accept it.
The unanimous Supreme Court's assessment of the significance
of this fact about judicial authority makes it legally, and not
just factually, pertinent to this case, even though Tapia dealt
with initial sentencing, whereas resentencing is involved here. As
noted, the Court relied for its conclusion, first, on the text of
§ 3582(a), then upon the context of its enactment in the same
legislation as § 994(k).

But the Court then found it "[e]qually

illuminating" that Congress made no provision for judicial power to
ensure

that

a

sentence

meant

to

provide

a

treatment

rehabilitation opportunity would accomplish its object.
slip op. at 10.

or

Tapia,

The importance it placed on this "statutory

silence" is stated categorically in the form of a major premise for
a classic syllogism: "[W]hen Congress wanted sentencing courts to
take account of rehabilitative needs, it gave courts the authority
to direct appropriate treatment for offenders."

Id.

While the

authority is there when sentencing to probation or supervised
release, it is absent when imprisonment is ordered.

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"If Congress

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had similarly meant to allow courts to base prison terms on
offenders' rehabilitative needs, it would have given courts the
capacity

to

ensure

that

correctional programs."
volumes.

offenders

Id. at 11.

participate

in

prison

"That incapacity speaks

It indicates that Congress did not intend that courts

consider offenders'
sentences."

rehabilitative

needs

when

imposing

prison

Id. at 11-12.

There is nothing tentative about this reasoning: if Congress
wanted

judges

to

consider

authority to control.

rehabilitation,

it

gave

judicial

If no authority was given, Congress did not

want rehabilitation to be considered.

And of course the Tapia

holding makes it clear that when the Court concluded that Congress
did not want rehabilitation considered, it means that Congress
wanted rehabilitation not to be considered.

Nor is there any hint

in the Court's exposition that this understanding of congressional
intent would not extend to provisions authorizing resentencing
after violation of release conditions.

In fact, the government

advised the Court of the unanimous string of cases holding that on
resentencing to prison a court could consider rehabilitation, Brief
for the United States Supporting Vacatur at 25 n.5, Tapia v. United
States, No. 10-5400 (U.S. June 16, 2011), but the Tapia opinion
says

nothing

to

reserve

the

possibility

of

recognizing

any

different view of congressional intent covering a case like this
one.

We therefore think that on a fair reading of Tapia, the

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inference of legislative intent manifested by withholding judicial
post-imprisonment authority must be held to trump any inference
otherwise possible from the omission of the rehabilitation caveat
in the resentencing provision.

We feel bound to conclude that

rehabilitation concerns must be treated as out of place at a
resentencing to prison, just as ordering commitment initially.
Accordingly, the sentence under review is vacated and the case
is remanded for resentencing.
Vacated and Remanded.

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