Lee v. United States

• Court: District of Columbia Court of Appeals
• Decided: June 9, 2022
• Docket: 18-CO-158
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CO-158

CRAIG A. LEE, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (CF1-19185-12)

(Hon. Robert E. Morin, Trial Judge)

(Submitted October 6, 2020 Decided June 9, 2022)

Donald L. Dworsky for appellant.

Jessie K. Liu, United States Attorney at the time the brief was filed, Elizabeth Trosman, Nicholas Coleman, C.B. Buente, and Elizabeth A. Aloi, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, GLICKMAN, Associate Judge, and WASHINGTON, Senior Judge.

WASHINGTON, Senior Judge: Appellant, Craig A. Lee, appeals the

sentencing court’s denial of his motion to correct an illegal sentence under Super.

Ct. Crim. R. 35(a). Specifically, appellant argues that the sentencing judge

erroneously applied a sentencing enhancement for a single prior rape conviction 2

twice, resulting in an illegal sentence. As a matter of first impression, we reject

appellant’s challenge and affirm his sentence.

I. Background

Appellant was indicted on November 6, 2012, on one count of aggravated

first-degree child sexual abuse in violation of District of Columbia (“D.C.”) Code

§§ 22-3008-3020(a)(5)(2012 Repl & 2021 Supp.). The case proceeded to a jury

trial before the Honorable Robert E. Morin on February 11, 2016. Before trial,

appellant waived his right to a jury trial for his alleged “aggravating circumstance,”

namely, his prior conviction in 1997 for second-degree rape in Maryland.

At trial, the jury hung on appellant’s charge for first-degree child sexual

abuse, but found appellant guilty of the lesser-included charge of attempted first-

degree child sexual abuse on February 26, 2016. The same day, Judge Morin

found appellant guilty of an aggravating circumstance sentencing enhancement for

his 1997 rape conviction.

Prior to sentencing, the government filed a memorandum in aid of

sentencing disputing the sentencing calculations of the presentence report 3

submitted to the court. Specifically, the government disagreed with the

presentence report’s findings that the maximum prison sentence for appellant was

fifteen years, arguing instead that the maximum sentence was actually twenty-two

and one half years after applying a sentencing enhancement for his aggravating

circumstance. In addition to the memorandum, the government orally argued at

the sentencing hearing on June 17, 2016, that appellant’s maximum sentence was

twenty-two and one half years. Appellant’s counsel did not dispute the

government’s statements. The government recommended a sentence of twenty

years. After considering the government’s argument that appellant’s maximum

sentencing exposure was twenty-two and one half years of incarceration, Judge

Morin sentenced appellant to eighteen years’ incarceration followed by a lifetime

of supervised release. Judge Morin also ordered appellant to pay $100 to the crime

victim’s compensation fund.

Appellant appealed his substantive conviction to this court, which affirmed it

in a per curiam, unpublished opinion on August 20, 2018. See Lee v. United

States, No. 16-CF-611, Mem. Op. & J. (D.C. August 20, 2018).

A. Rule 35 Motion 4

On May 8, 2017, appellant filed a motion to correct an illegal sentence under

Super. Ct. Crim. R. 35(a). In his brief, appellant argued that Judge Morin erred in

applying D.C. Code §§ 22-3018 (attempted first-degree child sexual abuse), 22-

3008 (first-degree child sexual abuse), and 22-3020 (enhancement for aggravating

circumstances), by counting appellant’s aggravating circumstances enhancement

twice. Appellant argued that the “double counting” occurred when Judge Morin

first used it to calculate appellant’s base sentence under § 22-3018 (which required

an initial calculation under § 22-3008), and then counted it again to enhance the

base sentence under § 22-3020(a)(5).

At a hearing on October 26, 2017, appellant said that the disagreement

between him and the government was about “the order” in which the court should

“consider[] the statute[s].” Appellant argued that the sentencing court was

required to apply the aggravating circumstances statute before applying the attempt

statute, and that if the court did so, this would result in a fifteen-year maximum

sentence. Judge Morin found that appellant’s position was “counter-intuitive [to]

how aggravating circumstances statutes work,” because under appellant’s

approach, the enhancement would be applied to determine the maximum sentence

instead of enhancing the maximum sentence itself. Judge Morin also noted that, if

he understood appellant’s position, a sentencing court could “never aggravate an 5

attempted first degree sex offense.” Appellant agreed that his position was that the

maximum sentence was capped at fifteen years, regardless of any aggravating

circumstances. The government disagreed with appellant, arguing that the

maximum, un-aggravated penalty for first-degree child sexual abuse was thirty

years, that the penalty for attempted first-degree child sexual abuse was therefore

fifteen years, and that the aggravating circumstances enhancement must be applied

at the end, which resulted in a maximum sentence of twenty-two and one half

years.

On February 16, 2018, Judge Morin denied appellant’s motion.

Announcing his decision from the bench, Judge Morin explained that “[t]he plain

reading of the statutes is that the aggravating circumstance enhancement is

attached to a sentence that has been imposed or . . . calculated because it says one

and a half times the maximum penalty prescribed for the particular offense.”

Judge Morin then stated:

[t]he particular offense for which [appellant] was sentenced was a conviction under D.C. Code § 22-3018. That has a maximum penalty of 15 years. So, you determine . . . the punishment for the offense of attempted first degree sexual offense first. In this case, it was 15 years. Then you determine the effect of the enhancement for the aggravating circumstance and not the other way around . . . D.C. Code § 22-3018 . . . was not intended to limit the sentence of an attempt that had 6

associated with it aggravating circumstances as set forth in D.C. Code § 22-3020. Obviously, the sentence that [appellant] received was less than the maximum sentence even under my reading of the statutes. It was within the guidelines.

Judge Morin concluded that § 22-3018 was not “intended to limit the

sentence of an attempt that had associated with it aggravating circumstances as set

forth in D.C. Code § 22-3020.” Appellant timely appealed Judge Morin’s ruling.

II. Discussion

Appellant argues two points on appeal. First, he asserts that Judge Morin

erred by “double counting” appellant’s aggravating circumstances enhancement by

using it first to determine his base sentence under D.C. Code § 22-3008, and then

using it a second time to enhance the maximum sentence under § 22-3020.

Second, appellant argues that, even if Judge Morin’s interpretation is reasonable, §

22-3018 is capable of multiple interpretations and so the rule of lenity requires this

court to find in appellant’s favor. We disagree on both points and affirm the

sentence.

A. Sentencing Provisions 7

This appeal involves the interplay between three statutes. The first is D.C.

Code § 22-3018, which punishes attempts to commit sexual abuse by allowing the

judge to impose a sentence of up to half of the maximum sentence authorized for

the completed crime. 1 Thus, in order to calculate a sentence for attempted sexual

abuse, the sentencing court first references the maximum sentence for the

completed offense. In this case, that is D.C. Code § 22-3008, criminalizing first-

degree child sexual abuse. Section 22-3008 allows a maximum sentence of “any

term of years or for life,” but requires the court to “impose a prison sentence in

excess of 30 years only in accordance with § 22-3020 . . . .” 2

Finally, the third statute is § 22-3020, the “aggravating circumstances”

statute. 3 Section 22-3020 allows the sentencing court to enhance the sentence up

1 “Any person who attempts to commit an offense under this subchapter shall be imprisoned for a term of years not to exceed 15 years where the maximum prison term authorized for the offense is life or for not more than 1/2 of the maximum prison sentence authorized for the offense . . . .” D.C. Code § 22-3018. 2 “Whoever, being at least 4 years older than a child, engages in a sexual act with that child or causes that child to engage in a sexual act shall be imprisoned for any term of years or for life . . . However, the court may impose a prison sentence in excess of 30 years only in accordance with § 22-3020 . . . .” D.C. Code § 22- 3008. 3 See Jones v. United States, 828 A. 2d 169, 180 (D.C. 2003) (referring to § 22-3020, under its prior codification, as the “enhancement” statute). 8

to 150 percent of the maximum if the defendant is found guilty of any aggravating

factors set forth in the statute. 4

Under this rubric, it is undisputed that to sentence for attempted first-degree

child sexual abuse under § 22-3018, Judge Morin was required to first determine

what appellant’s maximum sentence would be for the completed offense under §

22-3008. It is at this step that the parties disagree: Appellant argues that the

second sentence in § 22-3008, allowing the sentencing court to “impose a prison

sentence in excess of 30 years only in accordance with § 22-3020,” means that for

the purposes of the calculating the sentence under § 22-3018, one must apply that

calculation to the maximum enhanced sentence that could be given for the

completed offense (here, § 22-3008), precluding later enhancement. The

government argues that § 22-3008 means that the maximum, unenhanced sentence

4 Any person who is found guilty of an offense under this subchapter may receive a penalty up to 1 1/2 times the maximum penalty prescribed for the particular offense, and may receive a sentence of more than 30 years up to, and including life imprisonment without possibility of release for first degree sexual abuse or first degree child sexual abuse, if any of the following aggravating circumstances exists:

“(5) The defendant is or has been found guilty of committing sex offenses against 2 or more victims, whether in the same or other proceedings by a court of the District of Columbia, any state, or the United States or its territories . . . .” D.C. Code § 22-3020(a)(5). 9

for first-degree child sexual abuse is thirty years, that an attempt sentence is

therefore fifteen years, and that any aggravating circumstances enhance the

maximum sentence 150 percent at the end, leaving appellant with a maximum

sentencing exposure of twenty-two and one half years.

We agree with the sentencing court that the government’s approach is

correct. Because the statute is aimed at increasing the maximum sentence already

calculated, we hold that the enhancement statute is designed to be applied after the

maximum sentence is calculated. Perhaps more important, appellant’s proposed

order of application would prevent a sentencing court from ever enhancing a

sentence for attempted first-degree child sexual abuse, a result the D.C. Council

surely did not intend when it passed § 22-3020.

Resolving when the aggravating circumstances enhancement should be

applied to a conviction under § 22-3018 is a question of statutory interpretation

that we review de novo. See Rahman v. United States, 208 A.3d 734, 738 (D.C.

2019).

“The first step in statutory interpretation is to determine if the statute’s

‘language is plain and admits of no more than one meaning.’” Odumn v. United 10

States, 227 A.3d 1099, 1102 (D.C. 2020) (quoting Peoples Drug Stores, Inc. v.

District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)). In Peoples, we

explained that “even where the words of a statute have a superficial clarity,” the

court may review the legislative intent behind the law to avoid “obvious injustice.”

Id., 470 A.2d at 754.

Here, § 22-3008’s directive to “impose a prison sentence in excess of 30

years only in accordance with § 22-3020” may have “superficial clarity,” but we

hold it would create an “obvious injustice” if it prevented the sentencing court

from applying an enhancement for aggravating circumstances. Therefore, we must

examine the legislative intent behind the sexual abuse statutes at issue here.

1. Legislative History of D.C. Code §§ 22-3008, 22-3018, and 22-3020.

All three of the statutes at issue were originally enacted under the Anti-

Sexual Abuse Act (“ASAA”) of 1994. See D.C. Council, Report on Bill 10-87

(Sep. 28, 1994). The Council of the District of Columbia (“D.C. Council” or

“Council”) stated that the purpose behind the ASAA was to “strengthen and reform

the existing laws against rape and sexual abuse in the District of Columbia.” Id. at

1. In line with this purpose, the Council designed the ASAA to “create a flexible 11

sentencing system and establish a series of aggravating circumstances that would

result in sentences more appropriately tailored to the nature of the particular

offense committed.” Id.

As is evident from the first page of the committee report, a key part of the

D.C. Council’s intent for the ASAA was to increase sentences for those convicted

of aggravating circumstances. Id. When it was first passed, the ASAA permitted

sentences of fifteen years to life imprisonment for first-degree child sexual abuse.

Id. at 22. Notably, there was no original requirement that a court find any

aggravating circumstances to impose a sentence greater than thirty years of

incarceration. Id.

In 2001, the D.C. Council passed the Sentencing Reform Amendment Act of

2000 (“SRAA”). See D.C. Council, Report on Bill 13-696 (May 25, 2000). This

law was a response to Congressional efforts to establish a determinate sentencing

scheme in the District of Columbia. Id. at 2. A major part of the SRAA’s purpose

was to provide clarity for “how offenses for which the maximum penalty was 15

years to life should be treated in a determinate sentencing system.” Id. 12

Prior to passing the SRAA, the D.C. Council established the Advisory

Committee on Sentencing (the “Commission”), which made recommendations on

appropriate sentencing reforms for felonies with expansive sentencing possibilities.

Id. at 4. The Commission recommended that the Council place a cap of thirty

years’ incarceration for all crimes which then allowed sentences of between fifteen

years to life. Id. at 15. Noting that “30 years is a long time,” and “sentences for

non-murder offenses will not very often approach this length,” the Council

declined to adopt an “absolute cap of 30 years.” Id. After considering the

recommendations of the Commission, the Public Defender Service, and the United

States Attorney for the District of Columbia, the Council decided that “30 years

imprisonment…is the highest sentence that should be imposed – absent a finding

of aggravating circumstances.” Id. at 15-16. The SRAA thus modified § 22-3008

by adding the condition that “the court may impose a prison sentence in excess of

30 years only if the court finds an aggravating circumstance….” Id. at 40

(emphasis added).

These changes made by the SRAA do not show a legislative intent to

eliminate aggravating circumstances enhancements for attempted first-degree child

sexual abuse. Rather, the SRAA’s committee report shows exactly the opposite –

that the Council elevated the importance of aggravating circumstance 13

enhancements by requiring them in order to impose certain sentences. In fact, the

Council decided that only aggravating circumstances could increase a defendant’s

sentence beyond the 30-year “absolute cap” recommended to the Council. The

Council’s decision, supported by extensive background comments, makes clear

that it intended for aggravating circumstances to warrant significantly higher

prison sentences. All of this cuts against appellant’s argument that his sentence

was capped at fifteen years regardless of any aggravating circumstances.

Not only is the legislative intent in this case clear, but additionally,

“[c]ommon rules of statutory construction require us to avoid conclusions that

effectively read language out of a statute whenever a reasonable interpretation is

available that can give meaning to each word in the statute.” School St. Assocs.

Ltd. P’ship v. District of Columbia, 764 A.2d 798, 807 (D.C. 2001). In this case,

appellant’s approach would effectively nullify § 22-3020’s increased penalties for

aggravating circumstances. Because a reasonable interpretation in this case would

leave the increased penalties for aggravating circumstances intact, we must follow

that interpretation.

Against this backdrop, we find appellant’s reading of D.C. Code §§ 22-3008,

22-3018, and 22-3020 untenable as it would render the finding of any aggravating 14

circumstances irrelevant to sentence attempted first-degree child sexual abuse.

Such a result would be contrary to the D.C. Council’s intended result and must be

rejected. Additionally, because we “avoid conclusions that effectively read

language out of a statute,” we must reject appellant’s approach and hold that the

enhancement statute is properly applied after the maximum sentence is calculated

under § 22-3008.

Therefore, because aggravating circumstances serve to increase appellant’s

sentencing exposure, Judge Morin correctly found that under § 22-3008,

appellant’s maximum, unenhanced sentence for first-degree child sexual abuse was

thirty years; appellant’s maximum, unenhanced sentence for attempted first-degree

child sexual abuse was therefore fifteen years; and that appellant’s stipulated

aggravating circumstance conviction was then used to enhance the sentence 150

percent; leaving appellant with a maximum possible sentence of twenty-two and

one half years.

B. The Rule of Lenity

Appellant further argues that even if this court disagrees with his order of

reading the sentencing statutes, the rule of lenity requires that this court resolve 15

any ambiguities in his favor. See Henson v. United States, 399 A.2d 16, 21 (D.C.

1979). Finding no genuine doubt or ambiguity about the Council’s intent, we

disagree with appellant.

The rule of lenity is only used to resolve ambiguity in penal statutes. See

Holloway v. United States, 951 A.2d 59, 65 (D.C. 2008). “The rule … can tip the

balance in favor of criminal defendants only where, exclusive of the rule, a penal

statute’s language, structure, purpose and legislative history leave its meaning

genuinely in doubt.” United States Parole Comm’n v. Noble, 693 A.2d 1084,

1103-4 (D.C. 1997) (internal citations omitted). Importantly, the rule “is a

secondary canon of construction, and is to be invoked only where the statutory

language, structure, purpose, and history leave the intent of the legislature in

genuine doubt.” Holloway, 951 A.2d at 65 (internal citations omitted). In recent

Supreme Court concurrence, Justice Kavanaugh explained that before applying the

rule, courts must first use “all of the traditional tools of statutory interpretation.”

Shular v. United States, 140 S. Ct. 779, 789 (2020). Only then, if the statute

remains “grievously ambiguous [such] that the court can make no more than a

guess as to what the statute means,” will the rule of lenity apply. Id. 16

In this case, we do not find that § 22-3008’s “structure, purpose, and history

leave the intent of the [Council] in genuine doubt.” Holloway, 951 A.2d at 65. We

find that the intent of the D.C. Council was clear – to enhance penalties for child

sexual abuse when the defendant was also found guilty of aggravating

circumstances. Because the rule of lenity applies only when courts “can make no

more than a guess as to what the statute means,” Shular, 140 S. Ct. at 789, it is not

applicable in this case.

III. Conclusion

For the foregoing reasons, we affirm the trial court’s denial of appellant’s

motion to correct an illegal sentence under Superior Court Criminal Rule 35(a).

The judgment of the sentencing court is hereby,

Affirmed.