Darius Briscoe v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CF-1369
03/29/2018
DARIUS BRISCOE, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-8611-15)

(Hon. Milton C. Lee, Trial Judge)
(Submitted February 24, 2017 Decided March 29, 2018)

Donna L. Biderman was on the brief for appellant.
Channing D. Phillips, United States Attorney at the time, and Elizabeth
Trosman, Nebiyu Feleke, Tamika Griffin, and Priya Naik, Assistant United States
Attorneys, were on the brief for appellee.
Before THOMPSON and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
Opinion for the court by Associate Judge THOMPSON.
Concurring opinion by Associate Judge MCLEESE at page 31.
Separate Statement by Associate Judge THOMPSON at page 34.
Opinion by Senior Judge RUIZ dissenting in part at page 36.
 2

THOMPSON, Associate Judge: A jury convicted appellant Darius Briscoe of

armed robbery, assault with a dangerous weapon (“ADW”), and two counts of

possession of a firearm during a crime of violence (“PFCV”). Appellant asserts

that the government violated Superior Court Criminal Procedure Rule 16 and his

rights under Brady v. Maryland1 by failing to obtain and produce the contents of a

surveillance camera attached to an apartment building located on the street where

the offenses occurred, and he argues that the government should have been

sanctioned for that conduct. He also argues that the trial court erred in assuming

that it was required to impose the statutory five-year mandatory-minimum sentence

for a “while armed” crime of violence and the same mandatory-minimum sentence

for PFCV, and in failing to recognize that it could exercise sentencing discretion

under the Youth Rehabilitation Act (“YRA”). Reviewing appellant‟s claims for

plain error, we conclude that appellant is not entitled to relief. Accordingly, we

affirm.

I.

1
373 U.S. 83 (1963).
 3

Trial in this case commenced on October 8, 2015. The evidence showed that

on June 21, 2015, Troy Thomas was assaulted and robbed at gunpoint by a man he

later identified from a photo array as appellant. Thomas had just stopped at a

convenience store to bet on horse races. As he was leaving the store, he saw

appellant approaching with a bicycle. As Thomas was walking home, appellant

stopped him in an alleyway, pointed a handgun at him from approximately ten to

fifteen feet away, and said, “I heard you been hitting them horses. Hand that shit

up.” Four other people then joined appellant in the alleyway, whereupon appellant

ordered them to search Thomas‟s pockets. After the search, the group took

Thomas‟s phone, wallet, identification cards, Metro transportation card, and sixty

dollars in cash. Appellant then pulled the trigger of the handgun. When no shot

fired, Thomas took off running.

Thomas, afraid to return home that night, fled to his girlfriend‟s home. The

following morning, when he returned home, he found officers responding to a

different incident on his street, informed one of them about the previous night‟s

robbery, and described his assailant. The next day, Thomas saw appellant coming

down his street on a scooter and called Detective Sean Crowley of the

Metropolitan Police Department (“MPD”) to report the sighting. After hearing a

lookout broadcast over the radio, MPD Officer Caleb Bacon spotted appellant,
 4

whom he recognized by name, on a scooter and chased him. Appellant got away,

but Officer Bacon provided information as to appellant‟s identity to Detective

Crowley, who prepared a nine-person photo array containing appellant‟s picture.

From that array, Thomas identified appellant as the person with the gun who had

robbed him.

The government‟s trial evidence included video surveillance footage from a

camera located outside the convenience store.2 Thomas identified appellant in the

convenience store video footage. MPD Investigator Sean Rutter testified that he

had spotted a surveillance camera in the rear of an apartment building that looked

into the alley where the incident occurred. However, Investigator Rutter “was not

able to make contact with the homeowner” and, therefore, never received any

footage the camera may have contained. Rutter also testified that he was “not

sure” whether the camera “was fake” and that in his experience, “half of the time,”

cameras are “put up for deterrence purposes” only and do not actually work.

2
The trial court observed, in comments to counsel, that the video footage
“doesn‟t show the actual event” but tended to corroborate Thomas‟s testimony that
appellant was outside the store.
 5

Appellant did not testify, but his trial counsel argued mistaken identity.

Counsel told the jury that the man shown in the convenience store surveillance

video looked like, but was not, appellant.

Citing Brady and Super. Ct. Crim. R. 16, appellant now asserts that “[t]he

government did not preserve [the footage from the surveillance camera attached to

the apartment building], and because of its failure, [he] was prejudiced,” a

circumstance that he contends warranted sanctions against the government.

Appellant also argues that the sentence the trial court imposed was based on an

“incorrect understanding of the law,” because the YRA “supersedes the mandatory

minimum in this case.”

II.

As to appellant‟s Brady and Rule 16 claims, the rule that guides our analysis

is that where — as here — “defense counsel fails to move for the production of

evidence and does not request the imposition of sanctions against the government

for failing to preserve discoverable material, the trial court‟s failure to sua sponte

impose a sanction will only be reversed upon a finding of plain error.” Sheffield v.

United States, 397 A.2d 963, 968 (D.C. 1979).
 6

Where no objection was made during the sentencing proceeding, this court

applies plain-error review to a claim that the trial court erroneously believed that

the sentence it imposed was mandatory. See Veney v. United States, 738 A.2d

1185, 1198 (D.C. 1999). The plain error test requires that there “be (1) „error,‟ (2)

that is „plain,‟ and (3) that „affects substantial rights.‟” Johnson v. United States,

520 U.S. 461, 466-67 (1997) (internal brackets omitted) (quoting United States v.

Olano, 507 U.S. 725, 732 (1993)). “If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 467 (internal quotation marks and brackets omitted).

Our review of questions of statutory interpretation is de novo. Peterson v.

United States, 997 A.2d 682, 683 (D.C. 2010).

III.

We can dispose of appellant‟s first claim summarily. To establish a Brady

violation, an appellant must first show that the information the government failed

to produce was in its possession; “[i]f the government does not possess the
 7

requested information, there can be no Brady violation.” Guest v. United States,

867 A.2d 208, 212 (D.C. 2005). “The Brady principle does not imply the

government‟s duty to investigate — and come to know — information which the

defendant would like to have but the government does not possess.” Id. (internal

brackets omitted) (quoting Lewis v. United States, 393 A.2d 109, 115 (D.C. 1978)).

Rule 16 similarly requires the government to produce certain items “if the item is

within the government‟s possession, custody, or control.” Super. Ct. Crim. R. 16

(a)(1)(E). “If [the requested item was not ever within the government‟s

possession], there can be no Rule 16 violation.” Myers v. United States, 15 A.3d

688, 690 (D.C. 2011).

Here, appellant has failed to show that the government was ever in

possession of any contents of the video camera attached to the apartment building.

The only pertinent evidence in the record was the testimony of Investigator Rutter,

who testified that he “was not able to make contact with the homeowner” to obtain

any video footage the camera might have captured, that he did not even know

whether the camera was “fake,” and that in his experience, video surveillance

cameras frequently do not work and are mounted solely for their deterrent effect. 3

3
Moreover, defense counsel acknowledged in his closing argument to the
jury that “we don‟t know whether [the camera] was working or not.”
 8

Further, the government had no duty under the Due Process Clause or under Rule

16 to take steps to investigate and obtain any video footage the camera, which the

government did not possess or control, might have contained. See Guest, 867 A.2d

at 212; cf. Koonce v. District of Columbia, 111 A.3d 1009, 1016 (D.C. 2015)

(stationhouse video of person arrested for DUI must be preserved under Rule 16).

Accordingly, we have no basis for concluding that the government violated Brady

or Rule 16 by not producing any evidence from that camera and, likewise, no basis

for concluding that the trial court plainly erred by not sanctioning the government. 4

IV.

A.

During the sentencing proceeding, defense counsel said that “[t]here are

guidelines that are before the [c]ourt[,]” but urged the court to “consider the

sentence under the [YRA],” telling the court that he hoped appellant would be

4
Further, even if it is assumed arguendo that the video camera recorded the
incident, “[w]e do not know whether the tape would have been exculpatory.”
Robinson v. United States, 825 A.2d 318, 325 (D.C. 2003). “There is no Brady
violation absent a showing of materiality, i.e.,” a showing “that the missing
evidence „would have made a different result reasonably probable.‟” Id. (quoting
Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (citations omitted)).
 9

allowed “to have Your Honor sign an order of expungement should the [c]ourt go

along the lines [counsel was] requesting.” The prosecutor said that the government

would “rest largely” on its Memorandum in Aid of Sentencing, which — citing

appellant‟s “substantial criminal history” and asserting that his conduct was “only

getting more violent” — recommended that appellant be sentenced to consecutive

sentences of sixty months of imprisonment and three years of supervised release

for his robbery while armed and PFCV convictions, and to a concurrent sentence

of twenty-four months‟ imprisonment and three years of supervised release for the

ADW conviction. The prosecutor told the court that the government “defer[red] to

the [c]ourt” “in reference to the Youth Act.”

Before announcing appellant‟s sentence, the court cited appellant‟s record of

prior convictions (referring to “all . . . the other cases that [appellant] had”) and

also noted the “really hard impact” of appellant‟s offenses on victim Thomas. In

addition, the court emphasized that it took a period of being locked up for appellant

(who earned his GED while in jail awaiting trial and sentencing) to “apply

[him]self.” The court said that it would adhere to the voluntary sentencing

guidelines with respect to “when consecutive sentencing is appropriate,” noting

that consecutive sentencing would be appropriate had there been multiple victims

or offenses occurring at different times. The trial judge then stated the following:
 10

The sentencing is difficult in this case, in large part
because there‟s a mandatory minimum attached to this
because there is a firearm used. But . . . I don‟t see any
value going above the mandatory minimum in this case.
And in some respect maybe the mandatory minimum is a
little too harsh but it is the mandatory minimum. It is
what [the] city coun[cil] said is appropriate under the
circumstances.

The court sentenced appellant to concurrent sentences of sixty months of

imprisonment and three years of supervised release for his robbery while armed

and PFCV convictions and imposed a concurrent sentence of thirty months‟

imprisonment and three years of supervised release for the ADW conviction. The

court said that “[t]he sentence will be under the Youth Act so that [appellant

would] have the ability if [he could] successfully complete all this to remove it

from [his] record.” The Judgment and Commitment Order states that the sentences

were imposed under, and that appellant was to be “[c]ommitted pursuant to,” D.C.

Code § 24-903 (b), (c) (providing for “treatment and supervision pursuant to this

subchapter up to the maximum penalty of imprisonment otherwise provided by

law” if the court “determines that the youth offender will derive benefit from the

provisions of this subchapter”).
 11

B.

Appellant reads the sentencing transcript to suggest that the trial court might

have imposed a less “harsh” sentence had it understood that it was free to do so.

Appellant contends that the court was free to do so and erred in assuming that it

was compelled to impose the five-year mandatory-minimum sentence established

by D.C. Code §§ 22-4502 (a)(1) and -4504 (b) (2012 Repl.) for his convictions of

armed robbery and PFCV, respectively.

Although defense counsel urged the trial court to proceed under the YRA to

make expungement possible, he never argued that the court had discretion not to

impose the mandatory-minimum sentences under those statutes. Counsel‟s

Memorandum in Aid of Sentencing simply sought “a lenient sentence pursuant to

the [YRA]” and “the minimum permissible sentence pursuant to the [YRA].”

Further, counsel told the court during the sentencing proceeding that “whether the

[c]ourt gives him a [YRA] sentence or not[,]” he was “willing to accept the

judgment of the [c]ourt.”5 Even though counsel had reviewed (and referred in his

5
In neither his memorandum nor his argument during the sentencing
proceeding did counsel urge the court to impose no sentence at all in favor of
probation. He did suggest — to the contrary, at least arguably — that appellant
(continued…)
 12

Memorandum in Aid of Sentencing to) the Presentence Report (“PSR”), and even

though the PSR referred to the five-year mandatory-minimum sentences for

robbery while armed and PFCV, appellant‟s Memorandum in Aid of Sentencing

said nothing about whether those minimum sentences were applicable. And

although appellant now argues that “[i]t was obvious at sentencing that the trial

court was under the misimpression that it had to sentence [him] to the mandatory

minimum,” his counsel made no objection when the court said that sentencing was

difficult “because there‟s a mandatory minimum attached to this because there is a

firearm used.” Counsel also did not object to imposition of the mandatory-

minimum sentence even when, after announcing the sentence, the court said to

him, “anything else?” Accordingly, our analysis is for plain error.

In support of his claim of error, appellant cites footnote 43 in Green v.

United States, 974 A.2d 248 (D.C. 2009). That footnote accompanies a sentence in

the text of the opinion that states that the court “remand[s] this case for re-

sentencing.” Id. at 262. The footnote explains that “Mr. Green requests, and the

government does not oppose, a remand for re-sentencing.” Id. at 262 n.43. The

footnote further explains that the trial court “imposed mandatory minimum terms”

(…continued)
needed a “setting” (“He just needs a setting, perhaps a mentor if the [c]ourt can
arrange that”).
 13

“at the government‟s request,” but that “[i]n light of its review of the legislative

history of the DCYRA, . . . „the government . . . [now] accedes to appellant‟s claim

that the five-year mandatory minimum terms required by D.C. Code §§ 22-4502

(a) and -4504 (b) do not have to be imposed when sentencing under the DCYRA.‟”

Id. at 262 & n.43 (brackets in the original).6 The government now asserts that

“[o]n further reflection, we have concluded that our prior concession [in Green]

was incorrect.”

In Green, this court remanded for resentencing without giving any specific

instructions to the trial court. At most, this court “merely accepted”7 the

government‟s “acced[ing]” to Green‟s claim that the five-year mandatory

minimum terms required by D.C. Code §§ 22-4502 (a) and -4504 (b) do not have

to be imposed when the trial court imposes a sentence under the YRA, and did not

6
Green argued to the trial court that the five-year mandatory-minimum
terms under §§ 22-4502 (a) and -4504 (b) did not apply to sentences imposed
under the YRA, thus (unlike appellant in this case) preserving the issue. In its brief
in Green‟s direct appeal, although “continu[ing] to believe that an argument
c[ould] be made that the mandatory minimum terms in [the while-armed and
PFCV statutes] must be applied when imposing a period of incarceration under the
[YRA],” the government asserted that there was “sufficient ambiguity” on the
issue “as to render application of the rule of lenity appropriate” and stated that it
would not oppose Green‟s request for a remand for resentencing.
7
United States v. Garcia-Caraveo, 586 F.3d 1230, 1234-35 (10th Cir.
2009).
 14

independently analyze the issue. Given these circumstances, we agree with the

government that we are not bound by the government‟s “concession” in Green

with respect to an issue that was not actually decided by the court. See Daly v.

District of Columbia Dep’t of Emp’t Servs., 121 A.3d 1257, 1262 (D.C. 2015)

(explaining that the interpretation the court applied in an earlier case was “not

binding precedent, given the [petitioners‟] concession in that case”);8 United Food

& Commercial Workers Union, Local 1564 v. Albertson’s, Inc., 207 F.3d 1193,

1199-1200 (10th Cir. 2000) (declining to accord precedential weight to a panel

decision that assumed, but did not explicitly decide, that the court had jurisdiction,

even though the jurisdictional issue was necessary to the holding in that prior case;

stating, “[i]n order for a decision to be given stare decisis effect with respect to a

particular issue, that issue must have been actually decided by the court” (quoting

18 James Wm. Moore, et al., Moore‟s Federal Practice § 134.04[5] (3d ed. 1999))).

Green “stands for the propositions it established[,] not for the propositions

conceded by the parties.” In re Coats, 267 P.3d 324, 332 (Wash. 2011) (en banc).

For that reason, and because “the proper administration of the criminal law cannot

8
In light of Daly, decided in August 2015, it would not have been plain to
the trial court at sentencing in this case on December 18, 2015, that the remand for
resentencing in Green, based on the government‟s concession about whether the
while-armed and PFCV mandatory-minimum sentences applied, represented
binding precedent.
 15

be left merely to the stipulation of parties,” Young v. United States, 315 U.S. 257,

259 (1942), we analyze the issue afresh.

We have said that we cannot find error that is “obvious or readily apparent”

— i.e., plain — “where this court has not spoken on the subject.”

Cartledge v. United States, 100 A.3d 147, 150 (D.C. 2014) (internal quotation

marks omitted). There could, however, be situations where a statute is so clear on

its face that a decision of this court is unnecessary to make it “obvious” what the

correct interpretation is. And, in appropriate contexts, our review for plain error

entails considering whether there is “authority that appears to be to the contrary[.]”

Alexander v. United States, 116 A.3d 444, 449 n.5 (D.C. 2015).9 Here, in light of

the government‟s previous concession, based upon its “review of the legislative

history” of the YRA, that the five-year mandatory-minimum terms required by §§

22-4502 (a) and -4504 (b) “do not have to be imposed” when the Superior Court

sentences a youth offender under the YRA, Green, 974 A.2d at 262 n.43, we deem

9
Cf. United States v. Cheal, 389 F.3d 35, 49 (1st Cir. 2004) (considering
legislative history of relevant statute in analyzing claim under plain-error
standard); Marcia V. v. Office of Children’s Servs., 201 P.3d 496, 503-05 (Alaska
2009) (considering whether the claim of error had support in legislative history, but
concluding that the argument for error was not strong enough to reverse under the
plain-error standard of review).
 16

it appropriate to analyze any statutory language or legislative history that may

compel that conclusion (or the contrary conclusion the government now urges).

The YRA provides, in pertinent part, that “[i]f the court is of the opinion that

the youth offender does not need commitment, it may suspend the imposition or

execution of sentence and place the youth offender on probation.” D.C. Code

§ 24-903 (a)(1) (2012 Repl.).10 The YRA further provides that “[i]f the court shall

find that a convicted person is a youth offender, and the offense is punishable by

imprisonment under applicable provisions of law other than this subsection, the

court may sentence the youth offender for treatment and supervision pursuant to

this subchapter up to the maximum penalty of imprisonment otherwise provided by

law.” D.C. Code § 24-903 (b). D.C. Code § 24-903 (f) explains that § 24-903

“provide[s] sentencing alternatives in addition to the options already available to

the court.”

10
The YRA defines a youth offender as “a person less than 22 years old
convicted of a crime other than murder, first degree murder that constitutes an act
of terrorism, and second degree murder that constitutes an act of terrorism.” D.C.
Code § 24-901 (a)(6) (2012 Repl.). The record indicates that appellant was still
under twenty-two years of age at the time of sentencing.
 17

In contrast, D.C. Code § 22-4502 (which for convenience we will call the

“while-armed statute”) provides in pertinent part that “[a]ny person who commits a

crime of violence, or a dangerous crime in the District of Columbia when armed

with . . . any pistol or other firearm . . . shall . . . be imprisoned for a mandatory-

minimum term of not less than 5 years[.]” D.C. Code §§ 22-4502 (a), (a)(1).11

Further, D.C. Code § 22-4502 (c) provides that a defendant found to have been

“armed with any pistol or firearm” and sentenced under § 22-4502 (a)(1) “shall not

be released, granted probation, or granted suspension of sentence, prior to serving

[such] mandatory-minimum sentence.”12

The PFCV statute, enacted in 1990 through D.C. Law 8-120 (see 37 D.C.

Reg. 24), similarly provides in pertinent part that upon conviction of possession of

a firearm or imitation firearm while committing a crime of violence, a defendant

11
The term “crime of violence” includes robbery. See D.C. Code § 22-
4501 (1) (2012 Repl.) (incorporating the definition set forth in D.C. Code § 23-
1331 (4) (2012 Repl.)).
12
The mandatory-minimum provisions of § 22-4502 were enacted through a
voter initiative effective June 7, 1983. See Abrams v. United States, 531 A.2d 964,
966, 966 n.3 (D.C. 1987) (citing the “District of Columbia Mandatory-Minimum
Sentences Initiative of 1981 Delayed Effectiveness Amendments Emergency Act
of 1983” (D.C. Act 5-10, March 9, 1983, 30 D.C. Reg. 1226-27)). “[T]here is no
[initial] legislative history.” Johnson v. United States, 686 A.2d 200, 208 (D.C.
1996) (King, J., concurring).
 18

“shall be sentenced to imprisonment for a mandatory-minimum term of not less

than 5 years and shall not be released on parole, or granted probation or suspension

of sentence, prior to serving the mandatory-minimum sentence.” D.C. Code § 22-

4504 (b).

The government contends that the trial court did not err, plainly or

otherwise, in sentencing appellant to five-year, mandatory-minimum terms of

imprisonment for armed robbery and PFCV because “[t]he statutory provisions

setting the mandatory minimums for both offenses make explicit that the

mandatory sentences must be imposed and served, notwithstanding the YRA.”13

We disagree with the government‟s assertion that the while-armed and PFCV

statutes are “explicit” to that effect. Neither statute‟s mandatory-minimum

sentence provision contains the strong “[n]otwithstanding any other provision of

law” language that led us to conclude “inescapabl[y,]” in Peterson v. United States,

13
The government also argues that “as to the narrow class of crimes
covered by” §§ 22-4502 (c) and -4504 (b), the foregoing mandatory-minimum
sentence provisions, rather than “the more general YRA [provisions] . . . control.”
We need not decide the issue, but it seems at least equally reasonable to treat the
YRA as the more specific statute, and the while-armed and PFCV statutes as more
general ones. Cf. United States v. Stokes, 365 A.2d 615, 619 n.16 (D.C. 1976) (“It
also could be argued, however, that . . . the Youth Act could be regarded as the
more specific of the two enactments. The Youth Act confers a liberalized
sentencing alternative on a specific class of offenders, while D.C. Code 1973, § 22-
2404 applies in general to those convicted of first-degree murder.”).
 19

997 A.2d 682, 684-85 (D.C. 2010), that the YRA‟s authorization of sentencing

alternatives did not permit the trial court to suspend imposition or the execution of

the seven-year mandatory-minimum sentence required by the carjacking statute,

D.C. Code § 22-2803 (c) (2001).14 Somewhat to the same point, neither statute

contains the strong “notwithstanding” clause that the Council adopted when it

passed the Comprehensive Youth Justice Amendment Act of 2016, D.C. Law 21-

14
Section 22-2803 (c) provides that “[n]otwithstanding any other provision
of law, a person convicted of carjacking shall not be released from prison prior to
the expiration of 7 years from the date of the commencement of the sentence, and a
person convicted of armed carjacking shall not be released from prison prior to the
expiration of 15 years from the date of the commencement of the sentence.” See
also Beale v. United States, 465 A.2d 796, 806 (D.C. 1983), overruled in part on
other grounds by Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc)
(holding that where the defendant was convicted of first-degree murder under the
provision now codified as D.C. Code § 22-2104 (b), the trial court correctly
refused to consider probation as a sentencing alternative; reasoning that in light of
the “[n]otwithstanding” language in the provision‟s mandatory-minimum
paragraph, “it would be impossible for this court . . . to authorize a sentencing
judge who sentences a first degree murderer to life imprisonment then to suspend
execution of this sentence and to place such defendant on probation”).

On the other hand, the language in the while-armed statute — “shall not be
released, granted probation, or granted suspension of sentence, prior to serving
such mandatory-minimum sentence,” § 22-4502 (c) — like the nearly identical
language in the PFCV statute, § 22-4504 (b), is at least arguably stronger than the
carjacking statute‟s prohibition against early “release[] from prison,” D.C. Code
§ 22-2803 (c), since it forecloses not only early release but also leniency that
would enable a defendant to entirely avoid a period of incarceration. The language
of the while-armed and PFCV statutes thus provides some support for the
government‟s position that the mandatory-minimum sentence each prescribes must
not only be served when imposed, but also “must be imposed.”
 20

0238 (effective Apr. 4, 2017) (the “CYJAA”), codified at D.C. Code § 24-403.01

(c)(2) (West 2017), providing that “[n]otwithstanding any other provision of law, if

the person committed the offense for which he or she is being sentenced under this

section while under 18 years of age . . . [t]he court may issue a sentence less than

the minimum term otherwise required by law.” § 24-403.01 (c)(2)(A).

In any event, the issue before us is not whether the trial court was plainly

correct in (apparently) assuming that it lacked discretion to sentence appellant to

less than the mandatory minimums prescribed by the while-armed and PFCV

statutes, but whether the court was plainly wrong if it assumed that it was bound to

apply the mandatory minimums.15 For us to conclude that the trial court was

plainly wrong, its (putative) error in assuming that the mandatory minimum

applied “must be so clear or obvious that it could not be subject to any reasonable

15
We say that the court “apparently” assumed that it was bound to apply the
mandatory-minimum sentences because the court observed merely that “there‟s a
mandatory minimum attached” to the offenses that “is what city coun[ci]l said is
appropriate under the circumstances.” At least arguably, the court‟s reference to
the sentence the Council thought appropriate was in recognition of the court‟s
obligation to impose a sentence that “[r]eflects the seriousness of the offense[.]”
D.C. Code § 24-403.01 (a)(1) (2012 Repl.). We note also that the court had
received the PSR report that referred to the mandatory-minimum sentences but that
also presented for the court‟s information appellant‟s “criminal history score” and
the applicable “guideline compliant sentence,” which was 48 to 96 months for the
robbery-while-armed and PFCV offenses.
 21

dispute.” United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016) (citing

Puckett v. United States, 556 U.S. 129, 135 (2009)).

With respect to the while-armed statute, D.C. Code § 22-4502, the language

of that statute16 and the legislative history of the YRA both provide support for

appellant‟s claim of error. As pertinent here, D.C. Code § 22-4502 (e)(1) provides

that “Subchapter I of Chapter 9 of Title 24 [i.e., the YRA] shall not apply with

respect to [inter alia] any person . . . convicted more than once of” a while-armed

crime of violence or dangerous crime. Under the expressio unius, exclusio alterius

canon of statutory construction,17 the strong implication of § 22-4502 (e)(1) is that

the YRA is applicable to a youth offender such as appellant, convicted for the first

time of robbery while armed.

16
Our analysis of the interplay between the YRA and §§ 22-4502 and -4504
starts “where all such [statutory construction] inquiries must begin: with the
language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S.
235, 241 (1989) (“[W]here . . . the statute‟s language is plain, „the sole function of
the courts is to enforce it according to its terms.‟”) (citation omitted)).
17
See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) (“Where
[the legislature] explicitly enumerates certain exceptions to a general prohibition
[or rule], additional exceptions are not to be implied, in the absence of evidence of
a contrary legislative intent.”).
 22

The government would have us read § 22-4502 (e)(1) to mean that (1) all of

the benefits of the YRA (including alternative sentencing options and

expungement) must be denied to an offender described there, while (2) for an

offender convicted for the first time of robbery while armed, the conviction may

eventually be set aside pursuant to the YRA, but the five-year mandatory-

minimum sentence nonetheless applies. At least arguably, that reading is

inconsistent with the legislative history of the YRA.18 The Committee on the

Judiciary Report accompanying the legislation that became the YRA includes the

following statements:

[The legislation] provides that a youth offender who is
convicted of a second armed offense is ineligible for
sentencing under the act. Also, a youth offender
convicted of murder (including felony murder) is
precluded from benefiting from the rehabilitative
sentencing options of the act.

D.C. Council, Report on Bill 6-47 at 3 (June 19, 1985) (the “YRA Report”)

(emphasis added).19 The Committee‟s focus on exclusions from “sentencing under

18
Notably, the YRA amended § 22-4502 (e)(1) to substitute a reference to
the YRA for a previous reference to the Federal Youth Corrections Act, its
predecessor statute, showing that the Council was focused on the interplay between
the YRA and § 22-4502.
19
These statements are all the more significant given that the Council was
urged to exclude YRA sentencing for armed robbery. See YRA Report at 26
(statement of City Administrator/Deputy Mayor Thomas Downs urging the
Council to add armed robbery to the “current exemption of murder”).
 23

the act” and from the “sentencing options of the act” for second-time violence-

while-armed offenders and offenders convicted of murder while armed, and not

just on such offenders‟ ineligibility for the conviction-set-aside opportunity the

YRA provides, arguably supports reading § 22-4502 (e)(1) to imply that youth

offenders not described there — including appellant, who was convicted for the

first time of a while-armed crime of violence (robbery) — may be sentenced under

the YRA rather than in accordance with the mandatory minimum.20

For the foregoing reasons, appellant possibly has (and for purposes of our

analysis, we can assume he has) the better of the argument regarding whether the

20
There is further support for that interpretation in the fact that the YRA
was enacted to “fill the void created by congressional repeal of the Federal Youth
Corrections Act.” YRA Report at 2. Our case law applying the Federal Youth
Corrections Act had reasoned that it was “logical to assume that had Congress
intended the exclusion of first-degree murder from [Federal] Youth [Corrections]
Act coverage, this intent would have been expressed at the time the provisions of
the Act” became effective in the District of Columbia. Stokes, 365 A.2d at 618
(holding, in agreement with United States v. Howard, 449 F.2d 1086 (D.C. Cir.
1971), that a defendant convicted of first-degree felony murder before reaching age
twenty-two was eligible to receive a Federal Youth Corrections Act sentence). In
light of that history, to which the Committee on the Judiciary alluded in the YRA
Report (YRA Report at 3), it seems reasonable to expect that in adopting the YRA,
the Council would have taken caution to make it express that first-time crime-of-
violence-while-armed youth offenders are ineligible for the alternative sentencing
options of the YRA (and are eligible only for sentence expungement pursuant to
the YRA) if that is what it intended.
 24

trial court erred if it assumed that it was required to sentence him to at least the

mandatory-minimum sentence under § 22-4502 (a)(1) for robbery while armed.

We cannot reach that conclusion as to the mandatory-minimum sentence

under the PFCV statute, however. Unlike the while-armed statute, the PFCV

statute, § 22-4504 (b) — which “create[d] a new offense” unknown at the time the

YRA was enacted — includes no provisions that, by implication, exclude any

category of offenders from its mandatory-minimum sentence provision.21 D.C.

Council, Report on Bill 8-185 at 3 (Dec. 4, 1989) (the “PFCV Report”); see also

id. at 2 (stating that Bill 8-185 “would establish a mandatory 5 year prison term for

anyone convicted of committing a felony while possessing . . . a firearm or

imitation firearm”) (emphasis added). Nor does the legislative history of the PFCV

statute‟s mandatory-minimum sentence provision (which, again, was enacted years

after the YRA) contain any language expressing an intent by the Council to permit

trial judges to exercise their discretion under the YRA to avoid sentencing a youth

offender to at least the PFCV mandatory minimum, or any language reflecting that

21
Thomas v. United States, 602 A.2d 647, 652 (D.C. 1992) (stating that
§ 22-4504 (b) “leaves the sentencing judge no discretion to tailor the sentence to
either the degree of the harm caused by the perpetrator or any other factor”
(emphasis added)).
 25

the Council considered the interplay between the PFCV statute and the YRA.22

See generally PFCV Report. Arguments might be made that the same YRA

sentencing discretion should be available to the trial court in sentencing a youth

22
In addition, nothing in the language of the YRA itself suggests that the
sentencing discretion it affords to trial judges generally supersedes statutory
mandatory-minimum sentences. The YRA declares that the trial court “may
suspend the imposition or execution of sentence and place the youth offender on
probation.” D.C. Code § 24-903 (a)(1). Section 24-903 (a)(1) is not unlike D.C.
Code § 16-710 (a) (2012 Repl.), which, describing a trial court‟s general discretion
in sentencing, states broadly, in pertinent part that:

[I]n criminal cases in the Superior Court of the District of
Columbia, the court may, upon conviction, suspend the
imposition of sentence or impose sentence and suspend
the execution thereof, or impose sentence and suspend
the execution of a portion thereof, for such time and upon
such terms as it deems best, if it appears to the
satisfaction of the court that the ends of justice and the
best interest of the public and of the defendant would be
served thereby. In each case of the imposition of
sentence and the suspension of the execution thereof, or
the imposition of sentence and the suspension of the
execution of a portion thereof, the court may place the
defendant on probation under the control and supervision
of a probation officer.

We held in Moorer v. United States, 868 A.2d 137 (D.C. 2005), that the sentencing
discretion conferred by § 16-710 (a) “cannot be applied in carjacking cases.” Id. at
144-45 (concluding that the carjacking statute “require[s] a person convicted
[pursuant to it] to spend at least seven years behind bars, in all cases, with no
exceptions.” (emphasis added)). From that holding, and from the similarity
between § 16-710 (a) and the YRA provision codified at § 24-903 (a)(1), it seems
to follow that § 24-903 (a)(1) is not a sui generis provision that by its very
language trumps any mandatory-minimum sentence.
 26

offender convicted of PFCV as is available in concurrently sentencing the youth

offender for having committed robbery (or another crime of violence or dangerous

crime) while armed with a firearm. Indeed, our dissenting colleague suggests that

requiring a mandatory-minimum sentence under the PFCV statute while not

requiring a mandatory minimum for the same defendant under the while-armed

statute seems “nonsensical.” Post at 51. “What we must decide, however, is not

whether the legislature . . . ought to treat the two situations interchangeably, but

whether it has done so.” Edwards v. United States, 583 A.2d 661, 668 (D.C.

1990).

The PFCV Report explains that the PFCV statute was enacted in response to

the “record number of homicides committed with firearms” in 1988 and the

“[c]ontinued increases in homicides and violent assaults . . . attributable to the

increase in the availability of firearms” despite the District‟s having “one of the

most stringent gun control laws in the nation[.]” PFCV Report at 1. The

legislation was intended “to help the District deal with the deadly threat to public

safety posed by persons . . . who commit offenses while armed with . . .

firearms[.]” Id. Thus, the legislators‟ view was that existing legislation

establishing penalties for offenses committed while armed with a firearm was not
 27

sufficiently effective and needed “help.”23 The Council passed the legislation

despite an objection that “with respect to crimes of violence, application of a

mandatory minimum sentence of five years is superfluous[.]” PFCV Report at 8

(summary of testimony of Kim A. Taylor, Director, Public Defender Service). In

light of that history, we have no basis for concluding that the trial court here was

plainly in error if it assumed it was required to impose the PFCV mandatory

minimum.24

23
Note, too, that we have declined to treat PFCV and a while-armed-with-a
pistol offense as “the same offense” for double jeopardy purposes. Thomas, 602
A.2d at 650-55.
24
The Council has from time to time indicated awareness of the issue of
whether mandatory-minimum sentences apply to youth offenders, but it has not
spoken to the issue unequivocally as it affects the broad class of offenders eligible
for YRA benefits. For example, the Committee Report to D.C. Law 12-165, the
“Truth in Sentencing Amendment Act of 1998,” states that the effect of the
provision eventually codified at D.C. Code § 24-403.01 (c)(1) (providing for
sentences “for a definite term, which shall not exceed the maximum term allowed
by law or be less than any minimum term required by law”) is to “preserve[]
existing maxima and minima” and “not require or result in any extension or
application of mandatory minimum sentences to categories of offenders, including
persons sentenced under the Youth Rehabilitation Act, to which the mandatory
minima do not apply currently under District of Columbia law.” Committee on the
Judiciary, Report on Bill 12-523 at 9 (Feb. 25, 1998). The reference in the
legislative history to preserving the status quo with respect to “existing maxima
and minima” does not answer the question whether any minima already applied to
offenders sentenced under the YRA.

Likewise, in the CYJAA (“[n]otwithstanding any other provision of law, if
the person committed the offense for which he or she is being sentenced under this
section while under 18 years of age . . . [t]he court may issue a sentence less than
(continued…)
 28

In short, appellant‟s argument that the trial court plainly erred in assuming

that he was inescapably subject to the PFCV mandatory-minimum sentence fails.

For that reason, we must uphold appellant‟s sixty-month sentence for PFCV. That

being the case, we must also conclude that appellant is not entitled to relief with

respect to the sixty-month mandatory minimum the trial court believed it was

required to impose for his robbery while armed conviction, because appellant

cannot show that his substantial rights were affected by the (assumed) error.

To be sure, the Supreme Court has stated that “[w]here . . . the record is

silent as to what the [trial] court might have done had it considered the correct

[sentencing] range, the court‟s reliance on an incorrect range in most instances will

suffice to show an effect on the defendant‟s substantial rights.” Molina-Martinez

(…continued)
the minimum term otherwise required by law,” D.C. Code § 24-403.01 (c)(2)(A)),
the Council‟s use of the imprecise term “otherwise required by law” provides no
insight into whether the Council believed that youth offenders eligible for
rehabilitation under the YRA were theretofore generally subject to “minimum
term[s] . . . required by law” (or into whether the Council believed that youth
offenders who are over age 18 have been and remain generally subject to
“minimum term[s] . . . required by law”).

The foregoing provisions do not assist us in answering the question whether
appellant was subject to a mandatory-minimum sentence upon his conviction of
PFCV.
 29

v. United States, 136 S. Ct. 1338, 1347 (2016); see also United States v. Head, 817

F.3d 354, 361 (D.C. Cir. 2016) (“In the sentencing context, an error affects a

defendant‟s substantial rights where there is a reasonable likelihood that the

sentencing court‟s obvious errors affected his sentence.” (internal quotation marks

omitted)). That general principle is inapplicable here because the court imposed

concurrent sixty-month sentences for PFCV and robbery while armed. For that

reason, even if we assume that the court plainly erred in assuming that appellant

was subject to the while-armed mandatory minimum, we must conclude that

allowing the sixty-month sentence for armed robbery to stand will not prejudice

appellant, given that he must serve the sixty-month sentence for PFCV.25 For the

same reason, we cannot say that allowing the sentence to stand will seriously affect

25
We also are not persuaded that had the trial court understood it was not
bound by a mandatory minimum, it necessarily would have imposed probation or a
lighter sentence. The court did comment that “in some respect[,] maybe the
mandatory minimum is a little too harsh[.]” But the court also began its remarks
by saying that it “d[id]n‟t see any value going above the mandatory minimum in
this case.” That remark suggests that the court may have been primarily focused
on whether, on the record presented, a sentence greater than the mandatory
minimum was warranted. It is also notable that the court sentenced appellant to a
“guideline compliant” term of thirty months on the ADW charge, thus exceeding
the twenty-four month term urged by the government. That suggests that the court
did not think that either non-incarceration or a low-end sentencing-guideline-
compliant sentence was warranted — a view that we can surmise the court held as
to all of the offenses of which appellant was convicted.
 30

the fairness, integrity, or public reputation of the judicial proceedings.26

Accordingly, appellant is not entitled to relief on his sentencing claim.

V.

The parties concur, and we agree, that appellant‟s “convictions for armed

robbery and ADW merge.” See Morris v. United States, 622 A.2d 1116, 1129

(D.C. 1993) (“[A]rmed robbery and assault with a dangerous weapon merge where

both offenses are committed against the same victim as part of the same criminal

incident.”). A remand is necessary for the trial court to vacate appellant‟s ADW

conviction. See Medley v. United States, 104 A.3d 115, 133 (D.C. 2014).

Resentencing is not required, because appellant‟s sentences for these counts are

concurrent. See id.

26
See, e.g., United States v. Gjini, 419 Fed. App‟x 4, 6 (2d Cir. 2011) (“The
district court indisputably erred in imposing a 320-month sentence [for a witness
retaliation conviction]. However, because Gjuraj received a concurrent 320-month
sentence on the narcotics distribution charge, Gjuraj fails to show that the error
affected his substantial rights or the fairness, integrity or public reputation of
judicial proceedings.” (internal quotation marks omitted)); United States v.
Mitchell, 398 Fed. App‟x 159, 163-64 (6th Cir. 2010) (explaining that assumed
sentencing error as to three counts “did not seriously affect the fairness of the
judicial proceedings” “because the district court sentenced Mitchell to concurrent
terms on all four counts”).
 31

VI.

Wherefore, the judgment of the trial court is affirmed, except that we

remand for the court to vacate appellant‟s ADW conviction.

So ordered.

MCLEESE, Associate Judge, concurring: I join the opinion of the court in its

entirety. I write separately to briefly address the dissent‟s contention that the

division in this case is bound by an earlier holding in Green v. United States, 974

A.2d 248 (D.C. 2009). The opinion for the court concludes to the contrary that the

court in Green simply accepted a concession without ruling on the correctness of

that concession. Ante at 13-14. In large part, the dissent‟s contrary interpretation

of Green rests on the contention that “[p]arties do not, by agreement or concession,

relieve the court of its responsibility to decide questions of law that determine the

proper disposition of a case.” Post at 39-40. Although there is support for that

contention, the topic is more complicated than the dissent suggests. Appellate

courts, including the Supreme Court and this court, often give judgment without

deciding legal issues that might have led to a different disposition of a case. For

example, doctrines such as estoppel, waiver, and forfeiture often lead appellate
 32

courts to take as given legal principles that the courts might not have accepted on

the merits if those legal principles had been properly presented for decision.

Reliance on such doctrines does not reflect “abandon[ment of the] judicial role.”

Post at 41. Rather, reliance on such doctrines reflects courts‟ understanding of

limits on the judicial role imposed by considerations of both prudence and

procedural fairness to litigants. See, e.g., Rose v. United States, 629 A.2d 526,

536-37 (D.C. 1993) (under “our adversarial system,” appellate courts generally act

as “arbiters of legal questions presented and argued by the parties before them”)

(internal quotation marks omitted).

In the context of affirmative concessions, this court, like other appellate

courts, frequently renders judgment based on legal conclusions that it assumes

without deciding because they are not contested by the parties. See, e.g., Frey v.

United States, 137 A.3d 1000, 1002 (D.C. 2016) (“The parties in this case,

however, do not dispute that, generally speaking, the Adams Building is a public

building for purposes of the unlawful-entry statute. We accept that premise

without deciding the question.”; reversing judgment). Merger cases are a recurring

example. See, e.g., Bernal v. United States, 162 A.3d 128, 130 n.2 (D.C. 2017)

(“The government concedes that Counts Three and Four, only, merge.

Accordingly, we remand solely for the trial court to vacate appellant‟s conviction
 33

for Count Three.”). Moreover, despite the language the dissent cites from the

Supreme Court‟s 1942 decision in Young v. United States, 315 U.S. 257, 258-59,

post at 40, the Supreme Court itself often (although not invariably) reverses or

vacates judgments in criminal cases based on government concessions, without

independently evaluating whether the concession was correct. See, e.g., Nunez v.

United States, 554 U.S. 911 (2008) (per curiam). Even Justice Scalia, who was

critical of reflexively doing that, acknowledged over twenty years ago that “[t]he

practice is by now well entrenched.” Lawrence v. Chater, 516 U.S. 163, 184

(1996) (Scalia, J., dissenting). In any event, the issue in this case is not whether

the court in Green acted permissibly by simply accepting a concession without

independently ruling on the correctness of the concession. Whether permissible or

not, that is in fact what the court did in Green.

Finally, contrary to the assertion of the dissent, the difference between the

outcome of this case and the outcome in Green does not “violate[] the

constitutional principle that similarly situated parties should be treated equally.”

Post at 38. The defendant in Green objected in the trial court and the United States

conceded the validity of his objection on appeal. In the present case, Mr. Briscoe

did not object in the trial court and the United States has contested his claim on

appeal. These important procedural differences mean that the defendant in Green
 34

and Mr. Briscoe are simply not similarly situated. See, e.g., United States v.

David, 83 F.3d 638, 643 n.6 (4th Cir. 1996) (“[A] defendant who objects to an

alleged error . . . is not similarly situated to a defendant who did not . . . .”)

(citation and internal quotation marks omitted).

Separate statement by THOMPSON, Associate Judge: Our dissenting

colleague laments that the result of the majority‟s disposition of this case is that

similarly situated parties — appellant and the defendant in Green — have not been

treated equally. If what our colleague means is that the trial court in Green on

remand exercised sentencing discretion while the trial court here did not, I

emphasize that it is not entirely clear in this case that the trial judge thought he was

bound to impose mandatory-minimum sentences and therefore failed to exercise

sentencing discretion as to the while-armed and PFCV offenses. The court

observed that mandatory-minimum sentences, which it characterized as an

expression of the sentence the Council deemed “appropriate under the

circumstances,” made sentencing “difficult.” At least arguably, the court would

not have regarded sentencing as difficult if it thought all it had to do was impose
 35

mandatory-minimum terms of incarceration. Thus, it is not clear that appellant,

unlike Green, was deprived of the benefit of trial court sentencing discretion.1

I also think it overstates the case to say that appellant and Green are

“similarly situated” defendants entitled to “equal treatment.” Post at 38. Green

had a gun in his waistband at the time of his arrest for possession with intent to

distribute drugs, and there was no evidence that he had brandished or used the

weapon to assault anyone. 974 A.2d at 251. On resentencing, he was sentenced to

time served, or about three years. Appellant, by contrast assaulted and robbed the

victim at gunpoint and pulled the trigger. He had “greater engagement with the

weapon,” to use our colleague‟s language. Post at 51 n.12. In the trial court‟s

language, appellant made the victim‟s life “very difficult.” Appellant‟s sentence of

60 months for conduct that had “a really hard impact” on the victim does not

support concern about his having to serve an unequal sentence.

Our dissenting colleague also emphasizes the statutory language that it is

when the trial court finds that a youth offender “will not derive benefit from

1
Indeed, if what Judge Ruiz calls the “accepted view, as reflected in the
Voluntary Sentencing Guidelines Manual” was that Green decided the sentencing
issue presented in this case,” post at 46 n.7, that is all the more reason to think the
trial judge in this case thought he had sentencing discretion.
 36

treatment under [D.C. Code § 24-903 (b) (providing for “treatment and

supervision” up to the “maximum penalty of imprisonment otherwise provided by

law”)]” that the court “may sentence the youth offender under any other applicable

penalty provision.” D.C. Code § 24-903 (d). The point is somewhat beyond the

point because, according to a September 8, 2017, report by the Criminal Justice

Coordinating Council for the District of Columbia (“CJCC”) entitled “The

District‟s Youth Rehabilitation Act: An Analysis,” “at present, there are no

programs that are specifically developed to supervise or treat those sentenced

under the YRA.” September 8, 2017, CJCC Report at 34.

RUIZ, Senior Judge, dissenting in part: I would remand the case for

resentencing by the trial court to exercise discretion under the D.C. Youth

Rehabilitation Act, D.C. Code § 24-903 (2012 Repl.) (YRA), as we did in Green v.

United States, 974 A.2d 248 (D.C. 2009). The trial court made a determination

that appellant would benefit from sentencing under the YRA, but believed that a 5-

year minimum sentence was required by law for conviction for a while-armed

offence, D.C. Code § 22-4502 (a) (2012 Repl.), and PFCV, D.C. Code § 22-4504

(b) (2012 Repl.). This was a clear error. The YRA allows the court to impose a

sentence less than the otherwise mandatory minimum, if the trial judge deems that
 37

a youth offender would benefit from a lesser sentence. In this case, there is reason

to believe the trial court would have exercised that discretion to appellant‟s benefit.

The majority‟s decision to deny a remand for resentencing means that the appellant

in this case is being treated differently than the appellant in Green. 974 A.2d at

262. For these reasons I conclude that the trial court plainly erred in imposing the

mandatory minimum sentences rather than exercising discretion in sentencing. A

remand that will allow the trial court to resentence unfettered by the mistaken

belief that mandatory minimum sentences must be imposed is in order. I,

therefore, dissent from the majority‟s decision that denies appellant‟s request for a

remand for resentencing and affirms the imposition of mandatory minimum

sentences.1

A remand to permit the trial court to exercise YRA discretion falls squarely

within our holding in Green, 974 A.2d at 262, n.43, where we remanded for

resentencing, noting that the mandatory minimums for while-armed offenses (for a

first time offender) and PFCV need not be imposed if the judge believes sentencing

a youth offender under the YRA is appropriate. In Green, as is the case here, the

1
I join the remainder of the opinion of the court rejecting appellant‟s claims
under Brady and Rule 16 and affirming the convictions, with a remand for merger
of the ADW conviction.
 38

trial court believed it was required to impose mandatory minimums, even though

sentencing was done under the YRA. Id. This court affirmed the convictions on

appeal, but remanded the case for resentencing because “the five-year mandatory

minimum terms . . . do not have to be imposed when sentencing under the

DCYRA.” Id. To come to a contrary disposition in this case is directly at odds

with our disposition in Green and thus also contrary to our obligation to follow

precedent established by a prior division of this court, as required by M.A.P. v.

Ryan, 285 A.2d 310, 312 (D.C. 1971). It also violates the constitutional principle

that similarly situated parties should be treated equally, as the appellant in Green

and appellant here were both youth offenders, convicted of the same offenses,

where the trial court decided to sentence under the YRA. See Griffith v. Kentucky,

479 U.S. 314, 322-23 (1987). Yet only one is accorded resentencing for the

exercise of trial court discretion under the YRA, while the other is denied the

exercise of that judicial discretion and subjected to two mandatory minimum

sentences.2

2
Appellant requested a “lenient” “sentence,” the “minimum permissible
sentence pursuant to the YRA,” but did not expressly challenge the trial court‟s
statements that mandatory minimums were required. That circumstance means
that in this case appellant must meet the strictures of plain error review to warrant
relief. Once appellant has hurdled those requirements, as I conclude he has, he is
entitled to receive a sentence that is the result of individualized judicial discretion
on a par with other youth offenders sentenced under the YRA.
 39

The majority contends that Green should not be given precedential weight

because there the court “merely accepted” the government‟s “concession”

regarding the proper interpretation of the relevant statutes rather than deciding the

issue for itself. See ante at 13-14. To be clear, the court in Green did not say that

it was acceding to the government‟s concession; nor did the court say it was

avoiding deciding the issue, as we sometimes do, because it was unnecessary to do

so. See, e.g., Ferguson v. United States, 157 A.3d 1282, 1290 n.2 (D.C. 2017).3

Instead, what the Green court did was to remand for resentencing without requiring

the imposition of mandatory minimums after it had received full briefing on the

dispositive issue of statutory interpretation. The court indicated that it understood

the government had taken a contrary position in the trial court and, upon further

reflection, had come around to the appellant‟s view on the proper interpretation of

the statutes. The fact that the government conceded on appeal that its initial

interpretation was erroneous does not mean that this court accepted that concession

unquestioningly. Parties do not, by agreement or concession, relieve the court of
3
The court has other means to signal that a decision does not have
precedential effect. For example, it may decide not to publish its opinion and
instead issue a Memorandum Opinion and Order. See D.C. App. R. 28 (g)
(providing that unpublished opinions may not be cited to the court except for
purposes of law of the case, res judicata, collateral estoppel and criminal and
disciplinary proceedings involving the same person). Green is a published opinion
of the court.
 40

its responsibility to decide questions of law that determine the proper disposition of

a case. As the Supreme Court has observed, exercise of this judicial duty is

particularly important in criminal cases:

The public trust reposed in the law enforcement officers
of the Government requires that they be quick to confess
error when, in their opinion, a miscarriage of justice may
result from their remaining silent. But such a confession
does not relieve this Court of the performance of the
judicial function. The considered judgment of the law
enforcement officers that reversible error has been
committed is entitled to great weight, but our judicial
obligations compel us to examine independently the
errors confessed. See Parlton v. United States, 64 App.
D.C. 169, 75 F.2d 772 [(1935)]. The public interest that
a result be reached which promotes a well-ordered
society is foremost in every criminal proceeding. That
interest is entrusted to our consideration and protection as
well as that of the enforcing officers. Furthermore, our
judgments are precedents, and the proper administration
of the criminal law cannot be left merely to the
stipulation of parties. Cf. Rex v. Wilkes, 4 Burr[.] 2527,
2551, 98 Eng. Rep. 327; State v. Green, 167 Wash. 266,
9 P.2d 62 [(1932)].

Young v. United States, 315 U.S. 257, 258-59 (1942).

In order to remand for resentencing in Green, this court had to decide that as

a matter of statutory interpretation the trial court was not bound to impose

mandatory minimums and could lawfully exercise discretion under the YRA in

sentencing youth offenders for a first-time while-armed offense, D.C. Code § 22-

4502, and PFCV, D.C. Code § 22-4504 (b). This ruling was an “integrated
 41

component” and “essential to the outcome” and is therefore a holding binding on

us. Parker v. K & L Gates, LLP, 76 A.3d 859, 874 (D.C. 2013) (Ferren, S.J.,

concurring); see Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996) (“When an

opinion issues for the Court, it is not only the result but also those portions of the

opinion necessary to that result by which we are bound.”); 18 JAMES WM. MOORE,

ET AL., MOORE‟S FEDERAL PRACTICE § 134.04 [5] (3d ed. 1999) (noting that stare

decisis “may extend beyond issues that are explicitly decided to those which are

actually decided by necessary implication”).

If, as the majority contends, the Green court did not decide the legal issue of

statutory interpretation but merely “went along” with the parties, the court would

not only have failed in its responsibility to exercise independent judgment on a

question of law but also here acted beyond its authority by remanding so that the

trial court could take a judicial action (exercise sentencing discretion under the

YRA) it had no legal authority to do (because it was bound to impose mandatory

minimum sentences).4 There is no reason, however, to assume that this court

abandoned its judicial role in Green. The parties in the Green case had fully

4
This is the criticism of the court‟s prior decision leveled in United States v.
Garcia-Caraveo, 586 F.3d 1230, 1234 n.2 (10th Cir. 2009), cited by the majority
opinion. See ante at 13 n.7.
 42

briefed the issue concerning the application of the mandatory minimums for while-

armed and PFCV offenses when sentencing youth offenders under the YRA. A

question of law was squarely presented and the court was well aware of the

arguments on the merits of both sides. The court decided the issue by remanding

for resentencing without imposition of mandatory minimums.

Whether a decision is binding is recognized not by the number of words

used by the court in arriving at its disposition, but by whether the “issue constituted

„a statement not addressed to the question before the court or necessary for its

decision.‟” Albertie v. Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C.

1994) (quoting United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988)). In

Crawley, Judge Posner identified certain hallmarks of non-binding dicta, noting

that dicta is “unnecessary to the outcome of the earlier case,” that because it is “not

grounded in the facts of the case . . . the judges may therefore have lacked an

adequate experiential basis for it,” and “that the issue addressed in the passage was

not presented as an issue, hence was not refined by the fires of adversary

presentation.” 837 F.2d at 292-93.
 43

None of these hallmarks of dicta is present in the Green case. The

conclusion that sentencing under the YRA allows for judicial discretion when

sentencing a youth offender for violations of D.C. Code §§ 22-4502 (a) and 4504

(b), even when mandatory minimums apply to adults, was necessary for the court‟s

ultimate disposition. Unless it decided that “the five-year mandatory minimum

terms required by D.C. Code §§ 22-4502 (a) and 4504 (b) do not have to be

imposed when sentencing under the DCYRA,” Green, 974 A.2d at 262, n.43, the

court would have simply affirmed. Instead, it remanded for resentencing without

those constraints. Id. at 262.

Nor can it be said that analysis of the YRA‟s impact on minimum sentences

was not grounded in the facts or properly presented as an issue in Green. The

record revealed that the trial court believed mandatory minimums had to be

imposed. On appeal, the defendant presented the question to this court, countering

arguments the government made in the trial court, and requested a remand for

resentencing by the trial court free of the constraint of having to impose the

mandatory minimums. For its part, the government laid out, in over seven pages of

its brief to the court, the arguments that supported imposition of mandatory

minimum sentences. Ultimately, however, the government came to the following
 44

legal conclusion with respect to the proper interpretation of the relevant statutory

provisions:

In sum, while the government argued below and
continues to believe that an argument can be made that
the mandatory minimum terms in D.C. Code §§ 22-4502
(a) and -4504 (b) must be applied when imposing a
period of incarceration under the DCYRA, the
government now concedes that the several statutory
provisions and legislative history discussed above create
sufficient ambiguity so as to render application of the
rule of lenity appropriate. As a consequence, the
government does not oppose appellant‟s request for a
remand for re-sentencing.

Government‟s Br. in Green, 38. The fact that the government came to agree that

Green had the better of the argument hardly meant that the issue lacked “the fires

of adversary presentation.” A request for remand for resentencing was before the

court and both sides of the statutory interpretation issues that determined whether

resentencing was required were fully briefed by both parties. The court was made

aware of the reasoned basis for the conclusion that mandatory minimums do not

apply, as well as of the arguments that supported the government‟s position to the

contrary taken before the trial court. As discussed, this court would have been

acting in contravention of a statutory mandate by ordering a remand for the

exercise of discretion in resentencing under the YRA unless it thought that

mandatory minimums did not apply. Perhaps it would have been preferable for the
 45

court to give a fuller explanation for its conclusion, but it would not be the first

time that an opinion of the court is not as extended as one would like or as is

usually the case. Lack of a full exposition does not convert a legal conclusion

necessary to the disposition into non-binding dicta. “[N]ot all judicial decisions

are crystal clear about the essentials inherent in the outcome . . . . [what is expected

is] language from the court that communicates a clear understanding of the

ingredients „necessary‟ to every „holding.‟” Parker, 76 A.2d at 874 (Ferren, S.J.,

concurring).5 In Green, the court communicated that resentencing was warranted

because the trial court had acted under the erroneous belief it was required to

impose mandatory minimums. Green, 974 A.2d at 262 n.43.6

5
There is a more expansive view. See Parker, 76 A.3d at 877-78
(McLeese, J., concurring) (“In my view . . . it is not accurate to say that only
rulings essential to the outcome can constitute holdings.”).
6
The majority‟s reliance on language found in Daly v. District of Columbia
Dep’t of Emp’t Servs., 121 A.3d 1257, 1262 (D.C. 2015), that a prior decision is
not a holding if based on a “concession” overstates the case. The dispute over
statutory interpretation in the Daly case was unnecessary to the disposition in the
prior case, where imposition of a late payment penalty fee would have been
affirmed because the compensation payment was late regardless of which of two
possible statutory interpretations of the term “becomes due” (the issue decided in
Daly) was adopted by the court. See Orius Telecomms., Inc., v. District of
Columbia Dep’t of Emp’t Servs., 857 A.2d 1061, 1070-71 (D.C. 2004). The
“concession” in the prior case was made by counsel during oral argument on
appeal and pertained to a factual matter — when notice of an order was received
by the employer/insurer — and not on an issue of statutory interpretation that was
presented to the court. See id. at 1063 (referring to “the patchy record before us”
and “an important concession” made during oral argument); id. at 1064 (noting the
ALJ‟s finding that employer/insurer had not “received proper notification of the
(continued…)
 46

The majority‟s conclusion that Green is not binding precedent deviates from

the accepted view, as reflected in the Voluntary Sentencing Guidelines Manual,

that Green decided the sentencing issue presented in this case.7 It is also worth

(…continued)
compensation order”); id. at 1070-71 (noting that the legal issue was “never
expressly stated by either the ALJ or the [DOES] director” and that the court was
not thwarted in deciding the case “by the absence of express findings nor the
seemingly unsupported assumptions” in the agency‟s decisions in light of
counsel‟s late concession that he actually received the compensation order,
triggering the statutory payment period). An essential principal of stare decisis is
that the previous decision concerns an issue of law, not fact. See MOORE‟S
FEDERAL PRACTICE § 134.05 [3]. In Daly the court was squarely presented with
the issue of statutory interpretation that lurked, but was not decided by the court, in
Orius in light of counsel‟s factual concession. Daly, 121 A.3d at 1262 (noting that
“we did not explicitly answer,” “did not clearly decide,” “we have no problem in
now formally holding.”) As discussed in the text, in Green the issue of statutory
interpretation, a legal issue for the court to decide, was squarely presented, fully
briefed, and necessarily underpinned the court‟s disposition remanding the case for
resentencing. In short, we are not in a Daly-Orius situation.
7
During each of the eight years since Green was decided in 2009, the
Voluntary Sentencing Guidelines Manual has stated that “[a] youth offender
sentenced under the Youth Rehabilitation Act (D.C. Code § 24-901 et seq.) for one
of the offenses shown here in italics [i.e., first-time while-armed offenses and
PFCV] need not be sentenced to a mandatory minimum term.” (underlining in
original). The Manual cites Green as authority. VOLUNTARY SENTENCING
GUIDELINES MANUAL § 3.6 (The District of Columbia Sentencing and Criminal
Code Revision Commission 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016).
The 2017 Manual adds a citation to Peterson, which came to a different conclusion
with respect to the mandatory minimum for carjacking, see ante at 18, and makes
the point that with respect to “most offenses that require a mandatory minimum”
— the nine offenses with mandatory minimums remaining after this court‟s
decisions in Green and Peterson — this court has “not decided whether a judge
(continued…)
 47

emphasizing that the majority does not conclude today that Green‟s disposition

remanding for resentencing under the YRA was legally incorrect. To the contrary,

as Judge Thompson‟s opinion cogently lays out, the plain statutory language of the

while-armed statute, D.C. Code § 22-4502 (e)(1), and its legislative history

strongly support that the mandatory minimum is not required for a first-time while-

armed youth offender sentenced under the YRA. See ante at 21-23. The

majority‟s sole reason for affirming is that even if the lower court erred in adhering

to the mandatory minimum for the while-armed offense, the error is not as clear

with respect to PFCV. See ante at 27-28. As a result, imposition of the mandatory

minimum for PFCV was not an obvious error, and because of the concurrent nature

of the identical sentences imposed for the while-armed and PFCV offenses, the

sentencing error with respect to the while-armed offense does not affect appellant‟s

substantial rights. See ante at 28-29, 30 n.26.

(…continued)
who imposes a sentence pursuant to the [YRA] may suspend all or part of the
sentence or impose a prison term that is shorter than the mandatory term.” The
Sentencing Commission expresses no view on the subject. VOLUNTARY
SENTENCING GUIDELINES MANUAL § 3.6 (The District of Columbia Sentencing and
Criminal Code Revision Commission 2017). It thus seems quite clear to the
Sentencing Commission that Green decided the issue with respect to first-time
while-armed and PFCV offenses. It should have been equally clear to the trial
court in this case.
 48

I disagree with the premise about the PFCV mandatory minimum that

underlies this reasoning. As the majority observes, the PFCV statute, unlike the

while-armed statute, does not on its face link to the YRA by including an

exemption to the mandatory minimum for first-time youth offenders. See D.C.

Code § 22-4504 (b). But the task of judicial interpretation requires that the PFCV

statute be read in harmony with the YRA. The majority is too quick to dismiss the

importance of the discretion granted to sentencing judges by the YRA, arguing that

it is not sui generis and therefore should not supersede the mandatory minimum for

PFCV. The majority equates the YRA provision dealing with probation, D.C.

Code § 24-903 (a)(1), to the general discretion to grant probation afforded to

judges when sentencing adults under D.C. Code § 16-710, which has been held not

to override mandatory minimums required by statute. See ante at 25 n.22. There

are several problems with this reasoning. First, the YRA, enacted in 1985,

subsequent to the general probation authority in D.C. Code § 16-710, enacted in

1963, expressly provides that the “sentencing alternatives” of the YRA are “in

addition to the options already available to the court.” D.C. Code § 24-903 (f).8

The statutory language of the YRA therefore precludes the notion that it is merely

repeating a sentencing option already available to the trial court for non-youth

8
D.C. Law No. 6-69, § 4, 32 DCR 4587 (1985); 77 Stat. 559, Pub. Law 88-
241, § 1 (1963).
 49

offenders. Second, this comparison is faulty because it overlooks that the

“sentencing alternatives” of the YRA are not limited to probation and depend on

whether the judge has determined that a youth offender will “derive benefit” from

sentencing under the YRA. The YRA provides that when a judge determines that a

youth offender would derive benefit from YRA sentencing but believes the youth

offender should be “committed” (not placed on probation), the judge “may”

impose a sentence “for treatment and supervision” up to the “maximum penalty of

imprisonment otherwise provided by law.” D.C. Code § 24-903 (b). It does not

say that the judge must impose a mandatory minimum otherwise provided by law.

It is only when a judge finds that a youth offender “will not derive benefit from

treatment under subsection (b),” that the court “may sentence the youth offender

under any other applicable penalty provision.” D.C. Code § 24-903 (d) (emphasis

added).9 The trial judge in this case did not make a determination that appellant

would “not derive benefit” freeing him to impose “any other applicable penalty

provision.” Instead he found the opposite, that appellant would derive benefit, so

that the applicable provision is therefore § 24-903 (b), which allows sentencing up

9
Based on the different language in sections 24-903 (b) and (d), I, therefore,
disagree with the majority‟s assessment that “nothing in the language of the YRA
itself suggests that the sentencing discretion it affords to trial judges generally
supersedes statutory mandatory minimum sentences.” Ante at 25 n.22. A
comparison of the language of these subsections of the YRA suggests precisely
that, in the case where the trial judge determines that a youth offender would
derive benefit.
 50

to the maximum, but does not require a minimum sentence. Such leeway follows

this court‟s interpretation that a core purpose of the YRA is “to give the court

flexibility in sentencing a youth offender according to his or her individual needs.”

Holloway v. United States, 951 A.2d 59, 64 (D.C. 2008); see Veney v. United

States, 681 A.2d 428, 434-35 (D.C. 1996) (en banc). To require the imposition of

a mandatory minimum prison sentence when a judge has determined that a youth

offender would benefit from rehabilitative sentencing undermines the judicial

discretion and flexibility at the heart of the YRA. As the government argued in

Green, any statutory ambiguity as to whether mandatory minimums apply to youth

offenders sentenced under the YRA should be resolved against mandatory

minimums by application of the rule of lenity. See Holloway, 951 A.2d at 65

(applying the rule of lenity in interpreting the YRA where there are “two

reasonable constructions”) (quoting United States Parole Comm’n v. Noble, 693

A.2d 1084, 1103-04 (D.C. 1997) aff’d on reh’g, 711 A.2d 85 (D.C. 1998) (en

banc) (“The rule of lenity . . . 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 leaves its meaning genuinely in doubt.” (internal quotation

marks omitted))).10

10
As the majority recognizes, the Council is aware of the issue of whether
mandatory minimums apply to youth offenders. See ante at 27 n.24. I read the
(continued…)
 51

Finally, there is an anomaly in concluding that the while-armed statute does

not require a mandatory minimum for first-time youth offenders, but the PFCV

statute does. The incongruity arises because the maximum sentences for the two

offenses makes it evident that while-armed offenses are deemed to be more serious

than PFCV offenses, as the former may be punished by significantly greater

periods of imprisonment, up to life without possibility of parole, and the latter up

to 15 years.11 When interpreting statutes, we should do so contextually, with a

view to a coherent whole, see Galbis v. Nadal, 626 A.2d 26, 32, n.10 (D.C. 1993),

and avoid interpretations that would result in nonsensical results. Moten v. United

States, 81 A.3d 1274, 1277 (D.C. 2013) (“[I]f a literal interpretation of the statute

would lead to an absurd result, the court will follow the legislative intent despite

literal wording.” (internal quotation marks omitted)). It makes little sense to

(…continued)
Council‟s comments and actions as indicating that they do not apply. But, at a
minimum, the comments add to the ambiguity surrounding the question, which
calls for application of the rule of lenity.
11
In the case of a while-armed offense, an enhancement from 30 years to
life imprisonment without possibility of parole may be added to the sentence,
depending on the underlying crime. D.C. Code § 22-4502 (a). The maximum
sentence for PFCV is much less, 15 years, in addition to the sentence for the
accompanying “crime of violence.” D.C. Code § 22-4504 (b).
 52

exempt appellant from a mandatory minimum for a while-armed offense yet

require it for PFCV. 12

Having decided that we are bound to follow the court‟s correct decision in

Green, it is easy to conclude that appellant‟s substantial rights were affected by the

trial court‟s failure to recognize that discretion was permitted in sentencing him as

a youth offender under the YRA. That showing, of a “reasonable likelihood” that

the error affected the outcome, is “slightly less exacting” in the sentencing context

than is required for trial errors. United States v. Terrell, 696 F.3d 1257, 1263

(D.C. Cir. 2012); United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)

(referring to a “somewhat lighter” burden of showing prejudice in the sentencing

context). That burden is met in this case, where the record makes clear that the

trial judge made a finding that appellant would benefit from rehabilitative

treatment, noting that because sentencing was done under the YRA, appellant had

12
The majority dismisses this glaring sentencing disparity, without any
attempt at a reasonable or logical explanation. We have previously stated that the
disparity in maximum sentence between the two offenses is a reflection of the fact
that the while-armed statute is “very broad” in scope whereas conviction for PFCV
may be based on less evidence, of possession including constructive possession,
while conviction for a “while-armed” offense requires evidence of greater
engagement with the weapon. See Thomas v. United States, 602 A.2d 647, 651,
654 (D.C. 1992). This further supports the notion that if the mandatory minimum
sentence for while-armed offenses does not supersede the YRA, neither does the
mandatory minimum for PFCV.
 53

the ability to remove the conviction from his record after successfully completing

the conditions of supervised release. However, the record is also clear that the

judge believed his hands were tied when it came to sentencing and that he had to

impose a mandatory minimum because “[i]t is what [the] [C]ity [C]ouncil said is

appropriate under the circumstances.” The trial judge expressed his discomfort

with that requirement, commenting that sentencing was made “difficult” because

of the minimum sentences. He commented that “in some respect maybe the

mandatory minimum is a little too harsh,” but continued to indicate his lack of

choice by noting “but it is the mandatory minimum.” Upon examining the record,

there is a solid foundation to conclude that not only did the trial judge not exercise

discretion and imposed the mandatory minimum that he thought was statutorily

required, but also that he very well might have exercised discretion to impose a

lesser sentence had he known it was permitted. To the extent that we do not know

for certain what the trial judge would have done if he thought he could depart from

the mandatory minimums, remanding for resentencing would allow the judge to

exercise the discretion afforded by the YRA.

Finally, a failure to exercise discretion in this case, contrary to the mandate

of the YRA, and contrary to the disposition in Green, would “seriously affect[] the

fairness, integrity, or public reputation of judicial proceedings.” Lowery v. United
 54

States, 3 A.3d 1169, 1173 (D.C. 2010) (internal quotation marks omitted); see

United States v. Olano, 507 U.S. 725, 732 (1993). As the District of Columbia

Circuit has held in the analogous area where a sentencing judge imposed a

sentence pursuant to the erroneous belief that the Sentencing Guidelines are

mandatory and must be applied, the fourth prong is met “whenever the third —

prejudice to substantial rights — exists.” United States v. Gomez, 431 F.3d 818,

822 (D.C. Cir. 2005); Terrell, 696 F.3d at 1264 (same, where sentencing judge

imposed sentence under erroneous belief that certain conditions had to be met to

impose a below-Guidelines sentence). In this case, there is further cause to be

concerned that the “fairness, integrity and public reputation” of this court‟s

proceedings will be affected if the same relief afforded the youth offender in Green

is not accorded to appellant. See M.A.P., 285 A.2d at 312.

For these reasons I would remand the case for resentencing.