64
Kennedy, J., concurring in judgment
term "to serve in prison" is compelling evidence that Congress intended to mandate incarceration as a revocation punishment in § 7303(b)(2), but not in § 7303(a)(2) (the § 3565(a) drug proviso).
The Government interposes a structural argument of its own. Before enactment of the drug proviso in the 1988 Act, § 3565(a) consisted only of subsections (a)(1) and (a)(2), which, for all relevant purposes, took the same form as they do now. Those provisions grant courts two options for defendants who violate probation conditions that do not involve drugs or guns. Section 3565(a)(1) permits a court to continue the defendant on probation, with or without extending the term or modifying or enlarging the conditions. As an alternative, § 3565(a)(2) permits a court to "revoke the sentence of probation and impose any other sentence that was available . . . at the time of the initial sentencing." According to the Government, the two provisions make clear that the consequence of revocation under § 3565(a)(2) is that, in light of § 3565(a)(1), the court must impose a sentence other than probation, namely imprisonment. The meaning borne by the phrase "revoke the sentence of probation" in § 3565(a)(2), the Government concludes, must carry over when the same phrase appears in the drug proviso.
This argument, which the Court accepts, see ante, at 45, is not convincing. The conclusion that § 3565(a)(2) demands imprisonment upon revocation of the original sentence of probation does not rest upon anything inherent in the phrase "revoke the sentence of probation." Rather, it follows from the structure of §§ 3565(a)(1) and (a)(2). Congress set off subsection (a)(2) as an alternative to subsection (a)(1), which provides for every conceivable probation option. Thus, in order to make sense of the statutory scheme, § 3565(a)(2) should be read to require a punishment of something other than probation: imprisonment. That consequence, however, is due to the juxtaposition of subsection (a)(2) with subsec-
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