United States of America, Plaintiff-appellee, v. Joseph Hyder, Defendant-appellant, 69 F.3d 549 (10th Cir. 1995)

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Joseph Hyder, an inmate, plead guilty and was convicted, pursuant to 18 U.S.C. 1791, for possession of marijuana. He was sentenced to six months' imprisonment. On appeal, he raises a single issue: the propriety of his imprisonment under the statute. Our jurisdiction arises under 28 U.S.C. 1291. We review de novo the district court's interpretation of the statute, as an issue of law, United States v. Levine, 41 F.3d 607, 610 (10th Cir. 1994), and affirm.

Until its amendment in 1988, 18 U.S.C. 1791 contained three major subsections: (a) defined the offense, namely possession of various "prohibited objects" by an inmate; (b) set out the punishments, referencing specific "prohibited objects;" and (c) listed those objects which were prohibited. In 1988, the statute was amended to add a new subsection (c), and former subsection (c) was redesignated as subsection (d). Only one of the references to the former subsection (c) was changed to reflect the redesignation; the balance of the references to former subsection (c) were not changed. The result was that subsection (b) of the statute referred to portions of subsection (c) which no longer existed.²  The editors of the United States Code Annotated commented on this failure to redesignate references to former subsection (c). Not until 1994, after the criminal conduct which lead to Mr. Hyder's conviction, was the statute amended to redesignate all references to former subsection (c) to subsection (d).

Appellant contends that, at the time of his offense, the statute did not set forth a term of imprisonment for possession of marijuana. He does not contest his conviction; he plead guilty to the charge of possession. He does not allege that Congress did not intend for the statute to provide for imprisonment for the offense for which he was convicted. He does not contend that his sentence is otherwise invalid under the statute. He asserts that "inadvertently or otherwise," Congress "effectively repeal [ed] or invalidat [ed]" the statute and "effectively removed a form of punishment." He argues that Congress, not the courts, had the duty to remedy the problem created by the 1988 amendment. He also contends that any ambiguity in the statute should be resolved in his favor under the rule of lenity.

Essentially, Hyder argues that this court is strictly bound by the language of the statute, and cannot go beyond that to ascertain the intent of Congress in enacting and subsequently amending the statute. A long history of case law states otherwise. Although penal statutes are strictly construed, that construction should not defeat the obvious intention of the legislature. Levine, 41 F.3d at 611; see also United States v. Bettenhausen, 499 F.2d 1223, 1234 (10th Cir. 1974) (strict construction "is not a command to override common sense and the evident statutory purpose").

Here, the district court concluded that Congress intended to provide for a term of imprisonment as punishment for Hyder's offense under the statute, and that the failure to redesignate references to former subsection (c) was a compilation error. We agree.

Seeking to distinguish the only decision on point, an unpublished case from the Ninth Circuit, United States v. Duron, No. 93-50460, 21 F.3d 1116 (9th Cir. 1994) (Table) (reported in full at 1994 WL 123873), Hyder contends that the failure to redesignate the references to former subsection (c) is not a typographical error. He argues that " [e]very change sought by Congress [in the 1988 amendment] was made." Regardless of how it is characterized, however, we agree with the district court that congressional intent was clear. We also note, as did the district court, that the Ninth Circuit reached the same conclusion. Id. at * 4.

Finally, Hyder contends that the rule of lenity should weigh in his favor. We disagree. The rule of lenity applies only where, even after a court has "seized everything from which aid can be derived," a statute is still ambiguous. United States v. Decker, 55 F.3d 1509, 1513 (10th Cir. 1995) (quotations omitted). Because we conclude that congressional intent to provide imprisonment as a form of punishment for Hyder's offense was clear, the rule of lenity is inapplicable here.

The judgment of the United States District Court for the District of Colorado is AFFIRMED.