58
Scalia, J., concurring in judgment
this view, see post, at 71.) It seems to me that the term must refer to the entire original sentence; where that includes a fine in addition to the probation, the fine also is included. Thus, one-third of a sentence consisting of three years' probation and a $3,000 fine would be not merely one year's probation but a $1,000 fine as well. Even the majority, to maintain some measure of consistency in its strained interpretation of "original sentence," ought to consider, in addition to "the applicable Guidelines sentence of imprisonment," ante, at 54, the equally applicable range of fines set forth in the Guidelines, see United States Sentencing Commission, Guidelines Manual § 5E1.2(c)(3) (Nov. 1993) (USSG).*
*The Court's reply to this is that since "[t]he term of probation . . . was imposed in lieu of a sentence of imprisonment, not in lieu of a fine," its revocation "implies replacing the sentence of probation with a sentence of imprisonment." Ante, at 54, n. 12. I do not know why an implication would inhere in the proviso which contradicts the body of § 3565(a)(2) to which the proviso is attached. The latter provides that the court may "revoke the sentence of probation and impose any other sentence that was available . . . at the time of the initial sentencing" (emphasis added). Presumably the Court would concede that "any other sentence" includes a fine—in which case its discernment of some implication that revoked probation may be replaced by only prison time must be wrong.
Justice Kennedy makes a similar defense. He refuses to consider the fine component because "[t]he proviso instructs the district court to 'revoke the sentence of probation,' but says nothing about the fine imposed at the initial sentencing," post, at 61. There is, however, clearly no requirement that only what has been revoked can be the baseline for measuring the requisite minimum—for even the unrevoked (because already served) portion of the probation period counts. Justice Kennedy's argument reduces, therefore, to the contention that for some unexplained reason the requisite minimum replacement for the revoked "probation component" of the original sentence can be measured only by that same component. This imperative is not to be found in the language of the statute; to the contrary, interchangeability of fines and probation is suggested by the body of § 3565(a)(2) quoted above. Here, it seems to me, Justice Kennedy simply abandons the text and adopts an intuited limitation remarkably similar to those for which he criticizes the Court and the dissent.
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