Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 455 -- Milton I. Shadur, Judge.
Cudahy, Coffey and Manion, Circuit Judges.
On September 16, 1987, Mark Stewart entered a plea of guilty to a two count indictment charging conspiracy (Count I) and possession of goods which had been stolen from an interstate shipment of freight (Count II). At the hearing on the change of plea, Stewart was informed by the district court that the total potential sentence he faced on the two offenses was 15 years imprisonment and a $500,000 fine. The written plea agreement which the defendant signed also informed him of this possible maximum sentence. Under that plea agreement, the government reserved the right to recommend any sentence it deemed appropriate. On November 16, 1987 the district court sentenced Stewart to 3 1/2 years imprisonment on Count I and suspended the sentence on Count II, placing Stewart on probation for 5 years, the probationary period to run consecutive to the period of imprisonment. Stewart now appeals his sentence, claiming that he was entitled to be sentenced under the sentencing guidelines issued pursuant to the provisions of the Sentencing Reform Act of 1984 (SRA), Pub. L. 98-473, 98 Stat. 1837, 1987 (1984), which went into effect on November 1, 1987. Stewart claims that, by his calculation, the maximum sentence he could have received under the guidelines was 24 months.
The effective date of the Sentencing Reform Act was set out in § 235(a)(1), which provided for the Act to take effect on November 1, 1987. Pub. L. 98-473, Title II, Ch. II, § 235(a)(1), October 12, 1984, 98 Stat. 2031, as amended by Section 4 of Pub. L. 99-217, Dec. 26, 1985, 99 Stat. 1728.*fn1 The express language of this portion of the Act originally placed no apparent qualification on the November 1, 1987 effective date. Stewart implicitly relies on this provision setting the SRA's effective date, together with the following additional language in the SRA, to support his argument that he should have been sentenced pursuant to the guidelines:
The court, in determining the particular sentence to be imposed, shall consider --
(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced.
18 U.S.C. § 3553(a)(4) (Supp. 1985) (emphasis supplied). Since the effective date of the Sentencing Reform Act was November 1, 1987, Stewart argues that the guidelines were in effect on November 16, 1988, the date he was sentenced, and that the above language directs that he be sentenced according to those guidelines.
In United States v. Tex-Tow, Inc., 589 F.2d 1310, 1313 (7th Cir. 1978), we stated:
There are two circumstances in which the court may look beyond the express language of a statute in order to give force to Congressional intent: where the statutory language is ambiguous; and where a literal interpretation would thwart the purpose of the over-all statutory scheme or lead to an absurd result.
(Quoting International Telephone and Telegraph Corporation v. General Telephone & Electronics Corp., 518 F.2d 913, 917-18 (9th Cir. 1975)) (citations omitted in original). Congress' clear intent was that the SRA would not apply to sentencing for offenses committed prior to its November 1, 1987 effective date. The Senate Report on § 235(a)(1), the provision establishing the effective date of the SRA, states:
The title will apply to any offense or other event occurring on or after the effective date. A sentence imposed before the effective date of the guidelines as to an individual imprisoned or on probation or parole on that date would not be affected by this title. As to an offense committed prior to the effective date, the preexisting law will apply as to all substantive matters including the imposable sentence.
S. Rep. No. 98-225, 98th Cong., 2d Sess. 189 reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3372. As Judge Bua cogently observed in United States v. Cooper, 685 F. Supp. 179, 180 (N.D. Ill. 1988), "unfortunately, the 1984 Act itself did not articulate Congressional intent as lucidly as the Senate report did." In effect, Congress made a drafting mistake in failing to set out in clear statutory language the non-applicability of the SRA to offenses occurring prior to the SRA's effective date. This error created an ambiguous statutory framework. However, the clear Congressional intent reflected in the SRA's legislative history can help us resolve this statutory ambiguity in favor of the non-applicability of the SRA to offenses occurring prior to its November 1, 1987 effective date.
This approach also permits us to avoid an interpretation of the SRA which could "thwart the purpose of the over-all statutory scheme or lead to an absurd result," Tex-Tow, 589 F.2d at 1313, by raising serious and obvious ex post facto clause problems.*fn2 Under Bogden's interpretation, a defendant who committed a crime prior to the effective date of the Act could potentially receive a harsher sentence than the sentence that was authorized at the time he committed the offense. The ex post facto implications of such an interpretation are clear. Although Stewart contends that in his case there is no ex post facto problem (because he believes that he would receive a lighter sentence under the guidelines), he has apparently neglected to take into account other provisions of the SRA that would in all likelihood adversely affect him. The SRA established an entirely new and far-reaching system of sentencing of which the Sentencing Commission's guidelines are only a part. For example, under the new scheme, parole has been abolished; Stewart would therefore be required to serve his sentence in its entirety. 18 U.S.C. § 3624(a). Additionally, the amount of good time allowances he could receive under the new scheme is less than that to which he would be entitled under the old.*fn3 See also United States v. Kelly, 680 F. Supp. 119, 121 (S.D.N.Y. 1988). Had Stewart considered these provisions of the Act instead of focusing solely on the length of the sentence suggested by the guidelines, the ex post facto problems with applying the guidelines even to his own case would no doubt have been more obvious to him. We need only look to Congress' clearly expressed intent that the SRA would apply only to offenses committed on or after the effective date in order to avoid the ...