USA v. Dayven Joseph

Filing

FILED OPINION (STEPHEN R. REINHARDT, SIDNEY R. THOMAS and RICHARD A. PAEZ) VACATED; REMANDED. Judge: RAP Authoring. FILED AND ENTERED JUDGMENT. [8645369]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-10492

v.

D.C. No.
1:11-cr-00281LEK-1

DAYVEN JOSEPH ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted
October 17, 2012—Honolulu, Hawaii
Filed May 29, 2013
Before: Stephen Reinhardt, Sidney R. Thomas,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez

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UNITED STATES V . JOSEPH
SUMMARY*

Criminal Law
Vacating a sentence imposed following a guilty plea to
two counts of possession of contraband by an inmate and one
count of providing contraband to an inmate in violation of
18 U.S.C. § 1791, the panel held that the district court
committed plain error by interpreting 18 U.S.C. § 1791(c) to
require consecutive sentencing for controlled substances
offenses that arose out of separate items of drugs.

COUNSEL
Alexander Silvert (argued), Assistant Federal Public
Defender, Peter C. Wolff, Jr., Federal Public Defender, and
Donna M. Gray, Assistant Federal Defender, Honolulu,
Hawaii, for Defendant-Appellant.
Jonathan M.F. Loo (argued), Assistant United States
Attorney; Florence T. Nakakuni, United States Attorney,
Honolulu, Hawaii, for Plaintiff-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
PAEZ, Circuit Judge:
While incarcerated in a federal detention facility,
Defendant Dayven Joseph obtained possession of marijuana
on several occasions and provided some of that marijuana to
another inmate. He was charged with two counts of
possession of contraband and one count of providing
contraband to an inmate, all in violation of 18 U.S.C. § 1791.
Following his guilty plea, the district court imposed a 24month sentence. Joseph timely appealed.
Joseph argues that the district court plainly erred in
interpreting § 1791(c) to require consecutive sentences for
convictions when they are based on two separate items of
contraband. As we explain below, § 1791 prohibits the
possession of contraband by federal prison inmates and the
provision of contraband to them. The allegations in Counts
1 and 2 in the indictment involved a single item of marijuana
that entered the prison in December 2010. Count 1 charged
Joseph with possessing contraband marijuana while an inmate
of a federal prison, and Count 2 charged him with providing
that marijuana to another inmate. Count 4 charged Joseph
with possessing a separate item of marijuana as a federal
inmate in February 2011. At the sentencing hearing, the
district court assumed that § 1791(c) required imposition of
consecutive sentences on all three counts. Because we hold
that § 1791(c) only requires consecutive sentences where
there is more than one conviction resulting from a single item

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UNITED STATES V . JOSEPH

of a controlled substance, we reverse and remand for
resentencing.1
FACTS AND PROCEDURAL HISTORY
At the time of the § 1791 violations, Joseph was serving
a state sentence for sexual abuse at the Federal Detention
Center Honolulu. In February 2011 Joseph was found with
2.916 grams of marijuana after a visit with family members.
The FBI interviewed Joseph later that month, at which point
Joseph admitted he had received about 1 gram of marijuana
through a family member in December 2010 and provided it
to another inmate.
The Government filed an indictment in March 2011
charging Joseph with three counts of violating 18 U.S.C.
§ 1791. Counts 1 and 2 related to a single item of marijuana
that Joseph obtained and provided to a fellow inmate on or
about December 12, 2010. Count 1 charged Joseph with
possessing marijuana while an inmate of a federal prison in
violation of § 1791(a)(2), and Count 2 charged him with
providing that marijuana to another inmate in violation of
§ 1791(a)(1). Count 4 charged Joseph with possessing a
separate item of marijuana as a federal inmate on or about

1

Section § 1791(c) contains two “provisions.” The first provides: “Any
punishment imposed under subsection (b) for a violation of this section
involving a controlled substance shall be consecutive to any other
sentence imposed by any court for an offense involving such a controlled
substance.” The second provides: “Any punishment imposed under
subsection (b) for a violation of this section by an inmate of a prison shall
be consecutive to the sentence being served by such inmate at the time the
inmate commits such violation.” Joseph does not challenge the second
provision and we need not address it here.

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February 13, 2011 in violation of § 1791(a)(2). Joseph pled
guilty to all three counts without a plea agreement.
The probation office prepared a presentence report
(“PSR”), which among other things summarized the court’s
sentencing options. As relevant here, the PSR noted that
§ 1791(c) “provides that, the term of imprisonment shall be
imposed to run consecutive to any other sentence imposed for
offenses involving a controlled substance.”2 (emphasis
added). Joseph did not object to the PSR.
The district court conducted a sentencing hearing in
September 2011. Relying on the information contained in the
PSR, the court calculated the advisory Sentencing Guidelines
range as 10–16 months “as to each of counts 1, 2, and 4 . . .
[which] must run consecutive to any other sentence.” After
the Government, defense counsel and Joseph had an
opportunity to address the court, the district court imposed a
sentence of 10-months imprisonment as to each possession
count (Counts 1 and 4) and 4-months imprisonment as to the
provision count (Count 2), all to run consecutively for a total
of 24 months; and 3 years of supervised release.3 Joseph’s
counsel did not object to the imposition of consecutive
sentences.

2

The PSR also noted that, pursuant to the second provision in § 1791(c),
any sentence imposed must run “consecutive to any sentence being served
at the time the defendant committed the instance offense.”
3

Pursuant to the second provision in § 1791(c), which is not at issue
here, the term of imprisonment was also imposed to run consecutively to
the state sex abuse sentence for which Joseph was incarcerated at the time
he committed the § 1791 violations.

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ANALYSIS
I.

We review a sentence for both procedural error and
substantive reasonableness. United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). We review de novo the
district court’s interpretation of a statute. United States v.
Wahid, 614 F.3d 1009, 1013 (9th Cir. 2010). When a
defendant does not object in the district court to the
application of a statute to the facts of his case, we generally
review the district court’s application of the statute for “plain
error.” See id.; see also United States v. Ayala-Nicanor,
659 F.3d 744, 746–47 (9th Cir. 2011) (applying plain error
when defendant failed to object to the district court’s
interpretation of the Sentencing Guidelines); United States v.
Gonzalez-Aparicio, 663 F.3d 419, 426–28 (9th Cir. 2011)
(same); United States v. Guzman-Mata, 579 F.3d 1065, 1068
(9th Cir. 2009) (same).4

4

W e note that we “are not limited to [a plain error] standard of review
where the appeal presents a pure question of law and there is no prejudice
to the opposing party” that resulted from a defendant’s failure to object.
Gonzalez-Aparicio, 663 F.3d at 426; United States v. Evans-Martinez,
611 F.3d 635, 642 (9th Cir. 2010) (declining to apply plain error review
to the question of whether the district court correctly applied the
Sentencing Guidelines when the defendant failed to object at sentencing);
United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009)
(declining to apply plain error review when the defendant challenged a
sentencing enhancement for the first time on appeal based on the argument
that a prior conviction was not, as a matter of law, an aggravated felony);

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“Plain error is ‘(1) error, (2) that is plain, and (3) that
affects substantial rights.’” United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting
United States v. Cotton, 535 U.S. 625, 631 (2002) (citation,
alteration and internal quotation marks omitted)); see also
United States v. Olano, 507 U.S. 725, 733–35 (1993). “If
these three conditions of the plain error test are met, an
appellate court may exercise its discretion to notice a
forfeited error that (4) ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’”
Ameline, 409 F.3d at 1078 (quoting Cotton, 535 U.S. at 631
(citation and alteration omitted)).
II.
A.
First, we must determine de novo whether § 1791(c)
requires consecutive sentences on all three counts of
conviction. Section 1791 prohibits possessing or providing
to an inmate contraband in a federal prison. Subsection
1791(a) defines the offenses of providing an inmate with
contraband or being an inmate who attempts to possess or

United States v. Echavarria-Escobar, 270 F.3d 1265, 1267–68 (9th Cir.
2001). Because the question before us is one of law and the Government
suffers no harm from Joseph’s failure to object in the district court, we
could decline to apply plain error review. However, because we hold that
reversal is warranted under the more deferential plain error standard of
review, we need not address how our analysis would proceed under a
different standard.

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possesses contraband.5 Subsection 1791(b) sets forth the
applicable punishments for violations of § 1791(a).6 The
relevant portion of § 1791(c) then contemplates a scenario in
which the violation of § 1791(a) involves “a controlled
substance.” The full text of § 1791(c) provides:
(c) Consecutive punishment required in
certain cases.—Any punishment imposed
under subsection (b) for a violation of this
section involving a controlled substance

5

(a) Offense.–W hoever–
(1) in violation of a statute or a rule or order issued
under a statute, provides to an inmate of a prison a
prohibited object, or attempts to do so; or
(2) being an inmate of a prison, makes, possesses, or
obtains, or attempts to make or obtain, a prohibited
object;
shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 1791(a).
6

(b) Punishment.–T he punishment for an offense under this
section is a fine under this title or– . . .
(3) imprisonment for not more than 5 years, or both, if
the object is specified in subsection (d)(1)(B) of this
section; . . . .

18 U.S.C. § 1791(b). Subsection (d)(1)(B) defines a “prohibited object”
to include “marijuana.” 18 U.S.C. § 1791(d).

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shall be consecutive to any other sentence
imposed by any court for an offense involving
such a controlled substance.
Any
punishment imposed under subsection (b) for
a violation of this section by an inmate of a
prison shall be consecutive to the sentence
being served by such inmate at the time the
inmate commits such violation.
18 U.S.C. § 1791(c) (emphasis added). At issue here is
whether the phrase “such a controlled substance” refers to
any controlled substance or the specific item of drugs that was
involved in the violations of § 1791(a).
Joseph argues that “such a controlled substance” refers
only to the specific item of drugs that provided the basis for
the violation of § 1791(a). Under this interpretation, the
statute would mandate consecutive sentences only when
multiple sentences are imposed for convictions involving the
same item of drugs—not for any conviction involving a
different item of drugs. Here, Counts 1 and 2 involved
possessing and providing the same item of drugs and
therefore § 1791(c) would require consecutive sentences as to
those counts. Count 4, however, involved a separate item of
drugs and therefore § 1791(c) would not require a
consecutive sentence as to that count.
In contrast, the Government argues that “such a controlled
substance” in § 1791(c) refers to any controlled substance,
irrespective of whether it was the specific item of drugs or
even the same type of drug that formed the basis for the
violation of § 1791(a). This reading of the statute would
require consecutive sentences as to all three of Joseph’s
counts of conviction. It would also follow that these

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sentences for the § 1791(a) convictions would be required to
run consecutively to any other sentence involving any
controlled substance.
B.
Joseph’s reading of § 1791(c) is the only plausible
interpretation that comports with the text of the statute and
congressional intent. “‘In interpreting a statute, we look first
to the plain language of the statute, construing the provisions
of the entire law, including its object and policy, to ascertain
the intent of Congress.’” United States v. Mohrbacher,
182 F.3d 1041, 1048 (9th Cir. 1999) (quoting Nw. Forest Res.
Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)
(internal quotation marks and citation omitted)).
In crafting § 1791(c), Congress used “such” three times.
First to modify “a controlled substance” and twice more in
the remainder of the second provision. As used in the second
provision of § 1791(c), “such inmate” refers to the specific
inmate involved and “such violation” refers to the specific
violation of § 1791(a). Each use of “such” means “the
specific.” Applying the “presumption that a given term is
used to mean the same thing throughout a statute,” Brown v.
Gardner, 513 U.S. 115, 118 (1994) (citing Atl. Cleaners &
Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)), the
first “such” refers to the specific item of drugs involved in the
§ 1791(a) violation.
Moreover, the Government’s reading would render
meaningless the word “such.” It is “an important rule of
statutory construction . . . that every word and clause in a
statute be given effect.” United States v. Williams, 659 F.3d
1223, 1227–28 (9th Cir. 2011) (citing Hibbs v. Winn,

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542 U.S. 88, 101 (2004) (“A statute should be construed so
that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.”). Had
Congress intended the meaning urged by the Government, it
would have merely omitted the word “such” before “a
controlled substance” from the first provision in § 1791(c).
The background against which Congress legislated further
supports our conclusion. Absent a statute requiring
consecutive sentences, district judges have discretion, under
18 U.S.C. § 3584(a), to impose sentences either “concurrently
or consecutively.”7 Congress enacted § 1791(c) against this
congressionally sanctioned discretionary authority and the
existing presumption. The statute should not be interpreted
to fully displace this discretion unless it is clear that Congress
intended to do so. It seems unlikely that Congress intended
§ 1791(c) to usurp the district court’s discretion in every case
involving multiple controlled substance violations. The
Government’s interpretation would require that a defendant
convicted under § 1791(a) for possessing a controlled
substance in federal prison serve that sentence consecutive to
any other sentence related to a controlled substance, including
a completely unrelated state court sentence. More likely,
Congress intended to displace only the district court’s
discretion as it relates to another sentence for an offense
relating to the same item of drugs.

7

The one exception is that concurrent sentences must be imposed where
the sentences are “for an attempt and for another offense that was the sole
objective of the attempt.” 18 U.S.C. § 3584(a).

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The legislative history reveals nothing to the contrary.
The provision of § 1791(c) at issue here was added as part of
the Violent Crime Control and Law Enforcement Act of
1994. Pub. L. 103-322 (Sep. 13, 1994). The change to the
statute fell under the heading “Enhancement of Penalties for
Drug Trafficking in Prisons,” id. at § 90101, and the relevant
“Declaration of Policy” reads: “It is the policy of the Federal
Government that the use or distribution of illegal drugs in the
Nation’s Federal prisons will not be tolerated and that such
crimes shall be prosecuted to the fullest extent of the law.” Id.
at § 90103. If anything, the heading’s reference to drug
trafficking lends further support to our conclusion that
Congress intended that sentences run consecutively when an
inmate both possesses and then distributes the same item of
contraband.
Indeed, Joseph’s case itself illustrates why our
interpretation of § 1791(c) makes good sense. Here, Joseph
was convicted of two counts relating to the same item of
drugs—Count 1 for possessing and Count 2 for providing
marijuana to another inmate. This kind of scenario seems
precisely what Congress contemplated when drafting the first
provision of § 1791(c). An inmate is sentenced for the
possession of marijuana, and then an additional consecutive
sentence must be imposed if the inmate distributed that
marijuana within the prison.
The Sentencing Guidelines lend additional support to our
conclusion. Section 1791 violations are sentenced according
to United States Sentencing Guidelines § 2P1.2 (Nov. 1,
2012). The relevant commentary states: “[I]f a sentence of
imprisonment is imposed on a count involving providing or
possessing a controlled substance in prison, section 1791(c)
requires that the sentence be imposed to run consecutively to

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any other sentence of imprisonment for the controlled
substance.” U.S.S.G. § 2P1.2 cmt n.3 (Nov 1, 2012)
(emphasis added). Although we are not bound by the
Sentencing Commission’s interpretation of § 1791(c), it
confirms our own interpretation of the statute. Thus, we
agree with the Sentencing Commission that Congress did not
intend to mandate consecutive sentences for any controlled
substance violation, but rather limited this requirement to the
controlled substance at issue in the § 1791(a) offense.
Arguing against both the text of the statute and wellestablished canons of statutory construction, the Government
rests its argument on a single case: United States v. RaygosaEsparza, 566 F.3d 852 (9th Cir. 2009). But we did not
address this issue there. Raygosa-Esparza was convicted of
two counts—one for conspiracy to possess and distribute
controlled substances in violation of 21 U.S.C. § 846 and a
related substantive charge for attempting to obtain possession
of the same controlled substances while in prison in violation
of § 1791(a)(2). Id. at 853. Under any of the possible
interpretations articulated above, the district court was
required to impose consecutive sentences because the two
related convictions arose from the same controlled
substances. Thus, we had no occasion to decide the issue
now before us.
In sum, we hold that the first provision of § 1791(c)—
“[a]ny punishment imposed under subsection (b) for a
violation of this section involving a controlled substance shall
be consecutive to any other sentence imposed by any court

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for an offense involving such a controlled substance”—only
requires consecutive sentences when there is more than one
conviction resulting from the same item of controlled
substance contraband. Therefore it was error for the district
court to assume that the statute required the sentence for
Count 4 be imposed consecutively to Counts 1 and 2.8
III.
Next, we must determine if the district court’s error in
interpreting § 1791(c) was “plain.” “An error is plain if it is
‘contrary to the law at the time of appeal . . .’.” United States
v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)
(quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).
Here, although there was no appellate case law answering this
precise question, the clear text and structure of the statute,
along with the Sentencing Guidelines, are sufficient to show
that the error was “plain.” See United States v. Waknine,
543 F.3d 546, 552–53 (9th Cir. 2008) (concluding that the
district court’s error in failing to allow the government to be
heard before imposing sentence was “plain” because the
“plain language” and “express command” of Fed. R. Crim. P.
32 required the district court to do so).
We must also determine if the district court’s error
affected Joseph’s “substantial rights.” Id. at 553. Joseph
must “demonstrate ‘a reasonable probability that [he] would
have received a different sentence’ if the district court had not
erred.” United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir.
2011) (quoting Waknine, 543 F.3d at 554). “A ‘reasonable

8

Counts 1 and 2 arise from the same item of drugs and therefore the
district court was correct in determining that the sentences for these two
counts must be imposed consecutively.

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probability’ is, of course, less than a certainty, or even a
likelihood.” Id. (citing United States v. Dominguez Benitez,
542 U.S. 74, 86 (2004) (Scalia, J., concurring in the
judgment) (observing that the “reasonable probability”
standard is more “defendant-friendly” than the “more likely
than not” standard)). We have held that when a plain error
may have led to a sentence that was one month longer than
necessary, even within the Sentencing Guidelines, that error
“affects substantial rights.” United States v. Hammons,
558 F.3d 1100, 1106 (9th Cir. 2009).
We have also reversed and remanded “where the district
court errs by failing to consider exercising its discretion”
because the district court “might possibly” have exercised
that discretion if it was aware that discretion was permitted.
United States v. Castillo-Casiano, 198 F.3d 787, 790–91 (9th
Cir. 1999), amended, 204 F.3d 1257 (9th Cir. 2000) (citing
United States v. Mendoza, 121 F.3d 510 (9th Cir. 1997)).9 In
those cases we reversed and remanded where we found that
the district court “might possibly” have exercised its
discretion had it been aware that the law permitted such
discretion. Castillo-Casiano, 198 F.3d at 791–92; Mendoza,
121 F.3d at 515.
Here, the district court imposed a 24-month sentence,
above the 10–16-month Sentencing Guidelines range. The
total sentence was based on three separate counts of
conviction, each to run consecutively to the other two. As we

9
Castillo-Casiano and Mendoza both refer to this as a “harmless error”
inquiry. W e have clarified that the “substantial rights prong of plain error
analysis mirrors harmless error analysis but shifts the burden of persuasion
with respect to prejudice to the defendant.” Ameline, 409 F.3d at 1088
(describing a finding in Olano, 507 U.S. at 734).

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noted above, the sentences for Counts 1 and 2, totaling 14
months, must run consecutively under § 1791(c) because both
convictions arise from the same item of drugs. The sentence
for Count 4, which did not need to be imposed consecutively,
added an additional 10 months of incarceration. Had the
district court recognized that it had discretion to impose
Count 4 concurrently to the other counts, Joseph’s total
sentence could have been 10 months shorter. We cannot say
with any certainty that the district court would have
necessarily imposed a different total sentence had it properly
recognized its sentencing discretion. But our role is not to
hypothesize about what the district court would have done.
Rather, where, as here, there is a possibility that the district
court would have exercised its discretion and arrived at a
lower overall sentence, the third prong of the plain error
inquiry is satisfied. Castillo-Casiano, 198 F.3d at 791–92;
Mendoza, 121 F.3d at 515; see Hammons, 558 F.3d at 1106.
Finally, we must decide whether the plain error
“‘seriously affects the fairness, integrity, or public reputation
of judicial proceedings.’” Ameline, 409 F.3d at 1078 (quoting
Cotton, 535 U.S. at 631 (citation and alteration omitted)).
“We have regularly deemed the fourth prong of the plain
error standard to have been satisfied where, as here, the
sentencing court committed a legal error that may have
increased the length of a defendant’s sentence.” Tapia,
665 F.3d at 1063 (listing cases). As we said in CastilloCasiano and again in Tapia:
It is easy to see why prejudicial sentencing
errors undermine the “fairness, integrity, and

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public reputation of judicial proceedings:”
such errors impose a longer sentence than
might have been imposed had the court not
plainly erred. Defendants . . . may be kept in
jail for a number of years on account of a
plain error by a court, rather than because
their wrongful conduct warranted that period
of incarceration. Moreover, there is little
reason not to correct plain sentencing errors
when doing so is so simple a task . . . .
Reversing a sentence does not require that a
defendant be released or retried, but simply
allows a district court to exercise properly its
authority to impose a legally appropriate
sentence.
Tapia, 665 F.3d at 1063 (quoting Castillo-Casiano, 198 F.3d
at 792). Therefore, we exercise our discretion to notice the
plain error that Joseph failed to object to in the district court.
See Cotton, 535 U.S. at 631; Johnson, 520 U.S. at 467;
Ameline, 409 F.3d at 1078.
IV.
Accordingly, we hold that the district court committed
plain error by interpreting 18 U.S.C. § 1791(c) to require
consecutive sentencing for controlled substances offenses that

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arose out of separate items of drugs.10 We vacate Joseph’s
sentence and remand for resentencing.
VACATED AND REMANDED.

10

Because we remand for resentencing we need not address Joseph’s
other two arguments. Nonetheless, for the benefit of the district court and
the parties on remand, we note the following. First, Joseph argues that the
district court committed plain error by considering “rehabilitation” in
imposing or lengthening his sentence of imprisonment. Under the
Supreme Court’s recent decision in Tapia v. United States, 131 S. Ct.
2382, 2388 (2011), a district court may not consider the goal of
“rehabilitation”— represented by the factor articulated in 18 U.S.C.
§ 3553(a)(2)(D)— when deciding to impose or lengthen a sentence of
imprisonment. The district court’s Statement of Reasons seems to reflect
that rehabilitation may have been a factor in the court’s sentencing
decision. On remand, the district must not consider rehabilitation as a
basis for extending the length of Joseph’s term of imprisonment.
Second, Joseph argues that the district court committed plain error by
requiring, as a term of supervised release, that he register as a sex
offender. W e note that where the government proves “that a particular
condition of supervised release involves no greater deprivation of liberty
than is reasonably necessary to serve the goals of supervised release,”
United States v. Collins, 684 F.3d 873, 889 (9th Cir. 2012) (quotation
marks and citation omitted), “supervised release conditions need not relate
to the offense” the defendant is being sentenced for “as long as they
satisfy any” of the goals of deterrence, protection of the public, or
rehabilitation. United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003).

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