Cite as: 511 U. S. 39 (1994)
Scalia, J., concurring in judgment
applicable Guidelines range,15 and the maximum revocation sentence is the Guidelines maximum.
In this case, the maximum revocation sentence is six months. Because Granderson had served 11 months imprisonment by the time the Court of Appeals issued its decision, that court correctly ordered his release. The judgment of the Court of Appeals is therefore
Affirmed.
Justice Scalia, concurring in the judgment. My view of this case is close to, but not precisely, that of Justice Kennedy. I agree with him, for the reasons he well expresses, that the only linguistically tenable interpretation of 18 U. S. C. § 3565(a) establishes as a floor a sentence one-third of the sentence originally imposed, but leaves the district court free to impose any greater sentence available for the offense under the United States Code and the Sentencing Guidelines. Wherein I differ is that I do not believe (as he does) that only the probation element of the original sentence is to be considered—i. e., as he puts it, "that 'original sentence' refers to the sentence of probation a defendant in fact received at the initial sentencing." Post, at 61 (emphasis added). (The Chief Justice also espouses
15 At oral argument the Government suggested that its own interpretation is more lenient than Granderson's, in those rare cases in which the court has departed downward from the Guidelines to impose a sentence of probation. In United States v. Harrison, 815 F. Supp. 494 (DC 1993), for example, the court, on the Government's motion, had departed downward from a 97-121 month Guidelines range and a 10-year statutory mandatory minimum to impose only a sentence of probation. When the Government moved to revoke probation for drug possession, the court held that the statute required basing the revocation sentence upon the term of probation rather than the Guidelines range, and, in the alternative, that even if the statute were ambiguous, the rule of lenity would so require. Having found § 3565(a)'s drug-possession proviso ambiguous, we agree that the rule of lenity would support a shorter sentence, whether on Harrison's analysis, or on the theory that the "applicable Guidelines range" is the maximum of a Guidelines range permitting a sentence of probation.
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