Wright vs. Federal Bureau

Filing 920060707

Opinion

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United States Court of Appeals Tenth Circuit PU BL ISH UNITED STATES CO URT O F APPEALS TENTH CIRCUIT F I L E D July 7, 2006 Elisabeth A. Shumaker Clerk of Court GLEN N A . W RIGH T, Petitioner - A ppellant, v. FED ERAL B UR EA U O F PR ISONS and JO E L. N O RWO O D , Respondents - Appellees. No. 05-1383 A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF COLORADO (D. Ct. No. 04-CV-2667-REB/BNB) David Alan Lewis, Brooklyn, New York (Colleen B. Scissors, Offices of Colleen B. Scissors, LLC, Grand Junction, Colorado, on the briefs), appearing for Appellant. Jerry N. Jones, Assistant United States Attorney, (W illiam J. Leone, United States Attorney, with him on the brief), Office of the United States Attorney for the District of C olorado, Denver, Colorado, appearing for Appellees. M ary Price, Esq., General Counsel, Families Against M andatory M inimums, Denver, Colorado, and Philip A. Cherner, Esq., Law Office Of Philip A. Cherner, W ashington, DC, for Amicus Curiae for Families Against M andatory M inimums. Before TA CH A, Chief Circuit Judge, BARRETT, Senior Circuit Judge, and O'BRIEN, Circuit Judge. TA CH A, Chief Circuit Judge. In 1996, Petitioner-A ppellant Glenn W right was convicted of interstate transportation of child pornography in violation of 18 U.S.C. 2252A and sentenced to 168 months' imprisonment; he began serving his sentence on M ay 24, 1996. M r. W right will not be incarcerated for the entire 168 months, however, and the question this appeal raises is how early he will be released. Based on its interpretation of 18 U.S.C. 3624(b), the federal statute governing the calculation of credit for good conduct in prison, the Bureau of Prisons ("BOP") predicts that M r. W right will earn 635 days of good time credit. Under M r. W right's interpretation of the statute, he predicts that he will earn 729 days of good time credit. In December 2004, he petitioned the District Court for a writ of habeas corpus pursuant to 28 U.S.C. 2241 to dispute BOP's method of calculation. The District Court denied his petition; we take jurisdiction under 28 U.S.C. 1291 and 2253(a) and AFFIRM . I. This appeal presents a straightforward case of statutory interpretation. The statute at issue, 18 U.S.C. 3624(b), allows a prisoner to earn credit toward the service of his sentence for exemplary conduct in prison. The provision provides in relevant part: [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the -2- end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence. 18 U.S.C. 3624(b)(1) (emphasis added). The BOP issued a regulation, after notice and comment, see 5 U.S.C. 553, interpreting the emphasized portion of the statute. The regulation provides that the BOP will "award 54 days credit toward service of sentence . . . for each year served." 28 C.F.R. 523.20(a) (emphasis added). The BOP has also issued, as part of its Sentence Computation M anual, Program Statement 5880.28, which provides a formula for calculating good-time credit on sentences exceeding a year and a day. As the Seventh Circuit has explained: [The] formula is based on the premise that for every day a prisoner serves on good behavior, he may receive a certain amount of credit toward the service of his sentence, up to a total of fifty-four days for each full year. Thus, under the Bureau's formula, a prisoner earns .148 days' credit for each day served on good behavior (54 / 365 = .148), and for ease of administration the credit is awarded only in whole day amounts. Recognizing that most sentences will end in a partial year, the Bureau's formula provides that the maximum available credit for that partial year must be such that the number of days actually served will entitle the prisoner (on the .148-per-day basis) to a credit that when added to the time served equals the time remaining on the sentence. White v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004), cert denied, White v. Hobart, --- U.S. ---, 125 S. Ct. 2921, 2922 (2005). In other words, the BOP reads -3- the statute as mandating good time credits to be calculated based on the amount of time served in prison. M r. W right argues, however, that 3624(b)(1) unambiguously requires good time credit to be calculated based upon the sentence imposed, as opposed to the time served. Therefore, according to M r. W right, he is entitled to fifty-four days of good-time credit for each of the fourteen years to which he was sentenced, minus any deductions for disciplinary violations. II. Because this case involves an administrative agency's construction of a statute, our analysis is governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, we first determine "whether Congress has directly spoken to the precise question at issue." Id. at 842. If so, our inquiry is at an end; "the court `must give effect to the unambiguously expressed intent of Congress.'" Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (quoting Chevron, 467 U.S. at 843). If, on the other hand, the statute is silent or ambiguous on the issue, we will determine whether the agency's view is based on a permissible construction of the statute. Chevron, 467 U.S. at 843. W e review issues of statutory construction de novo. Robbins v. Chronister, 435 F.3d 1238, 1240 (10th Cir. 2006) (en banc). "`[O]ur task is to interpret the words of the statute in light of the purposes Congress sought to serve.'" Hain v. -4- M ullin, 436 F.3d 1168, 1176 (10th Cir. 2006) (en banc) (quoting Dickerson v. New Banner Inst., Inc., 460 U .S. 103, 118 (1983)). Our starting point, as always, is the language employed by Congress. Id. W e read the words of the statute "in their context and with a view to their place in the overall statutory scheme." Brown & Williamson, 529 U.S. at 132-133; Hain, 436 F.3d at 1177. Our focus in this case is directed at the meaning of "term of imprisonment." The phrase has inconsistent meanings throughout 3624. For example, 3624(a) states that "[a] prisoner shall be released by the [BO P] on the date of the expiration of the prisoner's term of imprisonment, less any time credited tow ard the service of the prisoner's sentence as provided in subsection (b)." Here, "term of imprisonment" plainly refers to the "sentence imposed" since the BOP is instructed to deduct time credited from the prisoner's sentence. Perez-Olivo v. Chavez, 394 F.3d 45, 49 (1st Cir. 2005). In 3624(d), however, the same phrase means "time served." That section provides that "[u]pon the release of a prisoner on the expiration of the prisoner's term of imprisonment, the [B OP] shall furnish the prisoner with [suitable clothing, an amount of money not to exceed $500, and transportation]." 18 U.S.C. 3624(d). Indeed, "[i]t would make no sense to provide [a prisoner] these amenities at a time when the prisoner's original imposed sentence had expired-- a date that would obviously occur after the prisoner had been released based on good time credits." Perez-O livo, 394 F.3d at 49 (quoting Loeffler v. Bureau of Prisons, No. 04-4627, 2004 W L 2417805, at *3 -5- (S.D.N.Y. Oct. 29, 2004)). The phrase is also used three times in the first sentence of 3624(b)(1). The provision applies to a prisoner "serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life." 18 U.S.C. 3624(b)(1) (emphasis added). Here, the phrase means "sentence imposed" since the statute only applies to prisoners w ho have been sentenced to more than one year's imprisonment and less than life. Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 531 (4th Cir. 2005). The BOP must be able to determine, on the first day the prisoner arrives in prison, if he will be eligible for good time credits. If, on the other hand, the phrase meant "time served" then a prisoner "who initially would be eligible for the credit because his sentence was, say, 366 days, would become ineligible once the credit was taken into account." White, 390 F.3d at 1001. But the specific use of the phrase at issue here describes not how to determine whether a prisoner is eligible for good time credits, but how (and w hen) to calculate them. A t the end of each year of imprisonment, if the BOP determines that the prisoner's behavior during that year was exemplary, then it may award up to fifty-four days credit toward service of the prisoner's sentence. 18 U.S.C. 3624(b)(1). The statute contemplates retrospective annual assessment of a prisoner's behavior-- that is, Congress intended that prisoners earn good time credits by "display[ing] exemplary compliance with institutional disciplinary -6- regulations." 18 U.S.C. 3624(b)(1). To interpret "term of imprisonment" to mean "sentence imposed," as M r. W right suggests, an inmate could receive credit for time when he was not in prison at all. See White, 390 F.3d at 1002. For example, M r. W right suggests that he is entitled to fifty-four days of credit for each of the fourteen years to which he was sentenced (minus any deductions for less-than-exemplary behavior), even though it is undisputed that M r. W right will not serve any of his fourteenth year. Simply put, "[a]n inmate w ho is not in prison cannot `earn' credit for compliance with disciplinary regulations," Yi, 412 F.3d at 532, and M r. W right's reading of the statute w ould appear to frustrate Congress's intent, see Sash v. Zenk, 428 F.3d 132, 137 (2d Cir. 2005) (stating that such a reading would "conflict with 3624's directive that good time be calculated at the end of each year" based on the prisoner's actual behavior during that year). M r. W right next argues that his reading is bolstered by the use of the w ord "credit" in 3624(b)(1). He suggests that "credit" means "deduction from an amount otherwise due" and can only refer to the sentence imposed since it is impossible to get "credit" for time served, because that time is no longer due. W e agree with M r. W right that a prisoner receives "credit" toward his sentence imposed. Indeed, the statute explicitly says as much: a prisoner "may receive credit toward the service of the prisoner's sentence." 18 U.S.C. 3624(b)(1). W e disagree, however, with M r. W right's conclusion that this renders the use of -7- the phrase "term of imprisonment" to unambiguously mean "sentence imposed." Nor does legislative history resolve this dispute. See Anderson v. U.S. Dept. of Labor, 422 F.3d 1155, 118081 (10th Cir. 2005) (ordinary tools of statutory construction include consultation of legislative history). Although earlier good time credit statutes revealed a clear Congressional intent to calculate credits based on the sentence imposed, see, e.g., 18 U.S.C. 4161 (repealed 1984), the legislative history of the current statute does not indicate any Congressional intent to calculate credits based on the sentence imposed as opposed to the time served. Perez-Olivo, 394 F.3d at 50. Nor do some congresspersons' general statements made shortly after the passage of the statute evidence a clear congressional intent to calculate credits based on the sentence imposed. See, e.g., 131 Cong. Rec. E37-02 (Jan 3, 1985) (Statement of Rep. Lee Hamilton) ("Now sentences w ill be reduced only 15% for good behavior"); see also Perez-Olivo, 394 F.3d at 51 (stating that the general statements do not resolve ambiguity in the phrase "term of imprisonment"). Nevertheless, M r. W right argues that there is a presumption that identical words appearing in different parts of the same statute have the same meaning and that the presumption is strongest when a term is repeated in a single sentence. See Brown v. Gardner, 513 U.S. 115, 118 (1994). The rule of consistency, as M r. W right acknowledges, is only a presumption. "[T]he presumption is not rigid and readily yields whenever there is such variation in the connection in which the -8- words are used as reasonably to warrant the conclusion that they were employed . . . with different intent." Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 595 (2004). Indeed, as discussed above, the phrase means different things in 3624(a) (sentence imposed) and 3624(d) (time served). As for the issue at hand, we hold, in accordance with nearly every circuit court to consider the issue, that "term of imprisonment" is ambiguous as it is susceptible to more than one interpretation. See Bernitt v. M artinez, 432 F.3d 868, 869 (8th Cir. 2005); Sash, 428 F.3d at 136; Petty v. Stine, 424 F.3d 509, 510 (6th Cir. 2005); Brown v. M cFadden, 416 F.3d 1271, 127273 (11th Cir. 2005); Yi, 412 F.3d at 533; O'Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005); Perez-Olivo, 394 F.3d at 52; White, 390 F.3d at 100203; Pacheco-Camacho v. Hood, 272 F.3d 1266, 126970 (9th Cir. 2001); but see Moreland v. Fed. Bureau of Prisons, 431 F.3d 180, 186 (5th Cir. 2005) (holding that 3624(b)(1) unambiguously directs good time credits to be calculated at the end of each year of time served). Before proceeding to the second step of our Chevron analysis, we briefly digress to resolve an intermediate argument raised by M r. W right. M r. W right contends that Chevron deference is inappropriate in this case because if a sentencing statute is ambiguous, we must apply the rule of lenity to construe the ambiguity in his favor. United States v. Bass, 404 U.S. 336, 347 (1971) (stating that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity"). Indeed, the rule of lenity applies "not only to interpretations of -9- the substantive ambit of criminal prohibitions, but also to the penalties they impose." Bifulco v. United States, 447 U.S. 381, 387 (1980). The principle of lenity is founded on two firmly-rooted ideas in this country's tradition: "First, a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. . . . Second . . . legislatures and not courts should define criminal activity." Bass, 404 U.S. at 348 (internal quotations and citations omitted). W e conclude that the rule of lenity does not apply here. Section 3624(b) is neither a substantive criminal statute nor does it prescribe the punishment imposed for a violation of such a statute. Sentencing credits are awarded to those prisoners who behave in prison-- they "are awarded to ensure administrative order in prisons, not to further the punitive goals of the criminal law." Sash, 428 F.3d at 13435. Further, neither of the rule's underlying principles are implicated here. As an administrative tool, rather than a punitive measure, the ambiguity of 3624(b) "does not result in any lack of notice to potential violators of the law of the scope of the punishment that awaits them." Sash, 428 F.3d at 134. M oreover, because 3624(b) is not criminal in nature, neither the courts nor the BOP have infringed upon the role of the legislature to define what constitutes criminal activity and how it should be punished. Id. at 135. Having concluded that the statute is ambiguous, and that the rule of lenity does not apply, the next step in the Chevron analysis is to determine whether the -10- BOP's interpretation of the statute is a permissible one. Chevron, 467 U.S. at 843. 1 As the preceding discussion shows, the BOP's interpretation of 3624(b)(1) is clearly a reasonable one. The statute directs that a prisoner "may receive credit toward the service of the prisoner's sentence . . . at the end of each year." 18 U.S.C. 3624(b)(1). "This is a clear congressional directive that the BOP look retroactively at a prisoner's conduct over the prior year, which makes it reasonable for the BOP only to award [good time credits] for time served." Perez-Olivo, 394 F.3d at 53. Indeed, every circuit to consider the issue has also concluded that such an interpretation is reasonable. See Bernitt, 432 F.3d at 869; Sash, 428 F.3d at 136; Petty, 424 F.3d at 510; Brown, 416 F.3d at 127273; Yi, 412 F.3d at 534; O'Donald, 402 F.3d at 174; Perez-Olivo, 394 F.3d at 53; White, 390 F.3d at 1003; Pacheco-Camacho, 272 F.3d at 1270. III. For the reasons set forth above, the D istrict Court's order dismissing M r. W right's petition for a w rit of habeas corpus is AFFIRMED. Congress has implicitly delegated interpretative authority over this issue to the BOP. Perez-Olivo, 394 F.3d at 52; Pacheco-Camacho, 272 F.3d at 1270. Accordingly, the BOP's interpretation of the statute is afforded full Chevron deference and we "may not substitute [our] ow n construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Chevron, 467 U.S. at 844; Harbert v. Healthcare Servs. Group, Inc., 391 F.3d 1140, 1147 (10th Cir. 2004) -11- 1 05-1383, Wright v. Federal Bureau of Prisons O'BRIEN, J. concurring. I concur in the result reached by the majority. If the statutory language were ambiguous, I would join in the majority's reasoning and discussion affording Chevron deference to the agency's interpretation of the statute. But, like the Fifth Circuit, I think the statute unambiguously specifies the method by which good time is to be calculated. M oreland v. Federal Bureau of Prisons, 431 F.3d 180, 186 (5th Cir. 2005). The Bureau of Prisons has been faithful to that method. W right's term of imprisonment is 168 months; that is also 14 years or 5112 days. It commenced M ay 24, 1996. W right may legitimately ask, "W hen do I get out?" A bsent good time credits the answer is quite simple. Each day W right serves reduces the remaining days by one. It is (or can be) calculated and credited daily. Provisions for good time credit add a wrinkle and prompt other questions. W ith respect to good time credit W right may ask, "How much good time credit do I get, when is it to be credited and how is it to be credited?" statute answers each question with straight-forward language. 1 The 1 18 U.S.C. 3624(b)(1) provides in relevant part: [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the (continued...) First, the amount is unambiguous, because it is easy to calculate. It depends upon the prisoner's conduct but "cannot exceed 54 days per year." Second, when it is to be credited is also unambiguous and the calculations are, again, simple. It is to be credited "at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term," the sentence anniversary date. A term of imprisonment expressed in months must be converted into years in order to determine anniversary dates; for a fourteen year sentence with no good time credits, there are 13. 2 The credit is to be applied annually on the anniversary date. Finally, how the credit is to be applied seems to be equally clear and the calculations equally simple. Good time credit is to applied "toward the service of the prisoner's sentence." A prisoner serves his sentence day by day. He expects to, and does, receive credit against the "term of imprisonment" for each day he 1 (...continued) prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations.. . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence. 2 All other things being equal, the 14 th anniversary would be the release date. -2- has served. Thus, to calculate the time remaining in a "term of imprisonment" the imposed term must be converted to days. A 168 month sentence beginning M ay 24, 1996, ends M ay 23, 2010. That is 5112 days, including the extra days in leap years. Each day served is deducted from the total days to be served. At the end of the first year the prisoner has 4747 days remaining (5112-365 = 4747). If the prisoner earned maximum good time during that year it must be credited on the sentence anniversary date. Using the method for crediting time actually served (deducting it from the time remaining) the prisoner would then have 4693 days remaining in his "term of imprisonment" (4747-54 = 4693). The calculations continue, granting daily credit for time actually served and annual credit for good time earned, until the days remaining equal zero. Following is a spread sheet example (faithful to statutory language) of a 14 year sentence with maximum good time credits. It is intended for illustrative purposes only and does not purport to be the Bureau of Prisons' actual calculation here. G oo d T im e C om pu tation -- 1 4 year sen ten ce B e g in D a te 5 / 24 / 19 9 6 0 A nn ive rsary 5 / 24 / 19 9 6 5 / 24 / 19 9 7 5 / 24 / 19 9 8 5 / 24 / 19 9 9 5 / 24 / 20 0 0 5 / 24 / 20 0 1 Ye a r 0 1 2 3 4 5 365 365 365 366 365 54 54 54 54 54 419 419 419 420 419 Se rved Tim e G o o d T im e To tal C redit D a ys left a fter cred it 5 1 12 4 6 93 4 2 74 3 8 55 3 4 35 3 0 16 Relea se D a te 5 / 23 / 20 1 0 3 / 30 / 20 1 0 2 / 4/ 2 01 0 1 2 /1 2 /2 0 09 1 0 /1 9 /2 0 09 8 / 26 / 20 0 9 End D a te 5 / 23 / 20 1 Ye ars 14 M on th s 168 Days 5 1 12 -3- 5 / 24 / 20 0 2 5 / 24 / 20 0 3 5 / 24 / 20 0 4 5 / 24 / 20 0 5 5 / 24 / 20 0 6 5 / 24 / 20 0 7 5 / 24 / 20 0 8 7 / 31 / 20 0 8 8 / 1/ 2 00 8 6 7 8 9 10 11 12 12 365 365 366 365 365 365 366 68 54 54 54 54 54 54 54 12 R e le ase D ate 4 4 51 660 419 419 420 419 419 419 420 80 2 5 97 2 1 78 1 7 58 1 3 39 920 501 81 1 0 7 / 3/ 2 00 9 5 / 10 / 20 0 9 3 / 17 / 20 0 9 1 / 22 / 20 0 9 1 1 /2 9 /2 0 08 1 0 /6 / 20 0 8 8 / 13 / 20 0 8 8 / 1/ 2 00 8 Serv ed a s o f 7 / 31 / 20 0 8 G T C red it (7 / 31 / 20 0 8) T ota l C red it (7 / 31 / 20 0 8) 5 1 11 _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ ___ Su m m ary Im p o se d 5 1 12 5 1 12 S erv e d 4 4 52 660 Go od T im e P e rc en tag e 8 7 .0 9 % 1 2 .9 1 % W right proposes a method for crediting good time at odds with the practices of the Bureau of Prisons. It is most clearly stated in the Brief of Amicus Curiae, which W right explicitly adopted at oral argument: Petitioner and Amicus, . . . read the statute literally to grant a "credit," that is a deduction, at the "end of each year" of the "term of imprisonment" imposed, if "during that year," the prisoner has been well behaved. 18 U.S.C. 3624(b). Accordingly, after the prisoner has served a year, the Bureau may apply a "credit," by definition a "deduction," of up to 54 days from that year, if, "during that year," the prisoner was well behaved. This credit, applied to the prior year of the term, establishes the day on which service of that year was fully satisfied. If the prisoner is granted 54 days' credit, he satisfied service of the first year of the term of imprisonment on the 311th day actually served. The 312th day served thus becomes the first day of the second year of the term. After another year of the term has passed, the B ureau must again look back and consider the prisoner's conduct during the preceding year and again make the appropriate deduction, which establishes the date on which service of that year was satisfied and the succeeding year begins, and so on. Honoring -4- the exact wording of the statute, then, a prisoner will be eligible for 54 days for each year of the "term of imprisonment" imposed by the sentencing court. The plain words of the statute are thus effectuated without the need to read the phrase "term of imprisonment" to have two different meanings the "term imposed" and the "time served" in the single sentence in which it appears, as the Bureau of Prisons does. Amicus Br., Families Against M andatory M inimums, at 2-3. A good lawyer can formulate an argument that makes a hash of almost any statutory, regulatory or contractual language. 3 W e must look through the argument. Our approach is practical and circumspect. "A s in all statutory construction cases, we begin with the language of the statute." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). If the statutory language is not ambiguous, and "the statutory scheme is coherent and consistent," further inquiry is unneeded. Id. (quotation marks omitted). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in w hich that language is used, and the broader context of the statute as a whole." Robinson v. Shell O il Co., 519 U.S. 337, 341 (1997); see also U.S. Nat'l Years ago Chief Justice Burger gave a speech lamenting the poor courtroom competence of many lawyers. W ith tongue firmly in cheek, Art Buchwald penned a retort as only he could, or would. Among other things he said: "A competent, first class lawyer can tie a case up in knots not only for the jury but for the judge as well. . . . It is the able lawyers [not the incompetent ones] who should not be permitted in the courtroom since they are the ones who are doing all the damage." See, Art Buchwald, "Bad Lawyers Are Very Good for the U.S. Justice System," 64 A.B.A. J. 328 (1978). "An incompetent lawyer can delay a trial for months or years. A competent lawyer can delay one even longer." Evelle Younger. -5- 3 Bank of O r. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) ("Statutory construction is a holistic endeavor, and, at a minimum, must account for a statute's full text, language as well as punctuation, structure, and subject matter.") (internal quotation and citation omitted). W right's arguments present a possible, but implausible, gloss on unambiguous statutory language. If we can fairly do so, we should avoid, not beget, a construction of a statute making it ambiguous. -6-

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