OPINION OF THE COURT
UNITED STATES V. RODRIQUEZ
553 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-1646
UNITED STATES, PETITIONER
v. GINO
RODRIQUEZ
on writ of certiorari to the united states court of
appeals for the ninth circuit
[May 19, 2008]
Justice Alito delivered the
opinion of the Court.
Under the Armed Career Criminal
Act (ACCA), 18 U. S. C. §924(e)(2)(A)(ii), a state
drug-trafficking conviction qualifies as “a serious drug offense”
if “a maximum term of imprisonment of ten years or more is
prescribed by law” for the “offense.” The Court of Appeals for the
Ninth Circuit held that “the maximum term of imprisonment . . .
prescribed by law” must be determined without taking recidivist
enhancements into account. 464 F. 3d 1072, 1082 (2006). We
reverse.
I
At issue in this case is
respondent’s sentence on his 2004 conviction in the United States
District Court for the Eastern District of Washington for
possession of a firearm by a convicted felon, in violation of 18 U.
S. C. §922(g)(1). Respondent had two prior state convictions
in California for residential burglary and three state convictions
in Washington for delivery of a controlled substance, in violation
of Wash. Rev. Code §§69.50.401(a)(1)(ii)–(iv) (1994).[
Footnote 1] Respondent’s three Washington
drug convictions occurred on the same day but were based on
deliveries that took place on three separate dates. Sentencing
Order No. CR–03–142–RHW (ED Wash., Sept. 3, 2004), p. 5, App. 245,
250 (hereinafter Sentencing Order). At the time of respondent’s
drug offenses, the Washington statute that respondent was convicted
of violating stated that, upon conviction, a defendant could be
“imprisoned for not more than five years,”
§§69.50.401(a)(1)(ii)–(iv)
, but another provision
specified that “[a]ny person convicted of a second or subsequent
offense” could “be imprisoned for a term up to twice the term
otherwise authorized,” §69.50.408(a). Thus, by virtue of this
latter, recidivist, provision respondent faced a maximum penalty of
imprisonment for 10 years. The judgment of conviction for each of
the drug-delivery charges listed the maximum term of imprisonment
for the offense as “ten years,” App. 16, 42, 93, but the state
court sentenced respondent to concurrent sentences of 48 months’
imprisonment on each count.
Id., at 21, 47, 98.
In the federal
felon-in-possession case, the Government asked the District Court
to sentence respondent under ACCA, which sets a 15-year minimum
sentence “[i]n the case of a person who violates section 922(g) of
[Title 18] and has three previous convictions . . . for a violent
felony or a serious drug offense, or both, committed on occasions
different from one another … .” 18 U. S. C. §924(e)(1)
(2000 ed., Supp. V). The Government argued that respondent’s two
prior California burglary convictions were for “ ‘violent
felonies.’ ” Pet. for Cert. 4. See §924(e)(2)(B)(ii) (2000
ed.) (listing “burglary” as a “violent felony”). The District Court
agreed, and that ruling is not at issue here.
The Government also argued that at least two
of respondent’s Washington drug convictions were for “serious drug
offense[s].” Under ACCA, a “serious drug offense” includes:
“an offense under State law, involving
manufacturing, distributing, or possessing with intent to
distribute, a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U. S. C. 802)),
for
which a maximum term of imprisonment of ten years or more is
prescribed by law.” §924(e)(2)(A) (emphasis added).
Because the maximum term that respondent faced on
at least two of the Washington charges was 10 years, the Government
contended that these convictions had to be counted under ACCA. The
District Court disagreed, holding that respondent’s
drug-trafficking convictions were not convictions for “serious drug
offense[s]” under ACCA because the “maximum term of imprisonment”
for the purposes of §924(e)(2)(A)(ii) is determined without
reference to recidivist enhancements. Sentencing Order, at 9, App.
254.
The Court of Appeals for the Ninth Circuit,
applying its prior precedent in
United States v.
Corona-Sanchez, 291 F. 3d 1201 (2002) (en banc),
affirmed. 464 F. 3d 1072. The Court recognized that its
decision conflicted with the Seventh Circuit’s decision in
United States v.
Henton, 374 F. 3d 467,
469–470, cert. denied,
543 U. S. 967 (2004),
and was “in tension” with decisions of the Fourth and Fifth
Circuits. 464 F. 3d, at 1082, n. 6; see
Mutascu
v.
Gonzales, 444 F. 3d 710, 712 (CA5 2006)
(per
curiam); United States v.
Williams, 326 F.
3d 535, 539 (CA4 2003). We granted the Government’s petition for a
writ of certiorari, 551 U. S. ___ (2007).
II
The question that we must decide
is whether the “maximum term of imprisonment prescribed by law” in
this case is, as respondent maintains and the Ninth Circuit held,
the 5-year ceiling for first offenses or, as the Government
contends, the 10-year ceiling for second or subsequent offenses.
See Wash. Rev. Code §§69.50.401(a) (ii)–(iv), 69.50.408(a).
The Government’s reading is
compelled by the language of ACCA. For present purposes, there are
three key statutory terms: “offense,” “law,” and “maximum term.”
The “offense” in each of the drug-delivery cases was a violation of
§§69.50.401(a)(ii)–(iv). The relevant “law” is set out in both that
provision, which prescribes a “maximum term” of five years for a
first “offense,” and §69.50.408(a), which prescribes a “maximum
term” of 10 years for a second or subsequent “offense.” Thus, in
this case, the maximum term prescribed by Washington law for at
least two of respondent’s state drug offenses was 10 years.
The Ninth Circuit’s holding that the maximum
term was five years contorts ACCA’s plain terms. Although the
Washington state court sentenced respondent to 48 months’
imprisonment, there is no dispute that §69.50.408(a) permitted a
sentence of up to 10 years. On the Ninth Circuit’s reading of ACCA,
even if respondent had been sentenced to, say, six years’
imprisonment, “the maximum term of imprisonment” prescribed by law
still would have been five years. It is hard to accept the
proposition that a defendant may lawfully be sentenced to a term of
imprisonment that exceeds the “maximum term of imprisonment . . .
prescribed by law,” but that is where the Ninth Circuit’s reading
of the statute leads.
The Ninth Circuit’s interpretation is also
inconsistent with the way in which the concept of the “maximum term
of imprisonment” is customarily understood by participants in the
criminal justice process. Suppose that a defendant who indisputably
had more than three prior convictions for “violent felon[ies]” or
“serious drug offense[s]” was charged in federal court with
violating the felon-in-possession statute. Under ACCA, this
defendant would face a sentence of “not less than 15 years.” 18 U.
S. C. §924(e)(1) (2000 ed., Supp. V). Suppose that the
defendant asked his or her attorney, “What’s the maximum term I
face for the new offense?” An attorney aware of ACCA would surely
not respond, “10 years,” even though 10 years is the maximum
sentence without the ACCA enhancement. See §924(a)(2) (2000
ed.).
Suppose that the defendant then pleaded guilty
to the felon-in-possession charge. Under Federal Rule of Criminal
Procedure 11(b)(1)(H), the trial judge would be required to advise
the defendant of the “maximum possible penalty.” If the judge told
the defendant that the maximum possible sentence was 10 years and
then imposed a sentence of 15 years based on ACCA, the defendant
would have been sorely misled and would have a ground for moving to
withdraw the plea. See
United States v.
Gonzalez,
420 F. 3d 111, 132 (CA2 2005);
United States v.
Harrington, 354 F. 3d 178, 185–186 (CA2 2004). In
sum, a straightforward application of the language of ACCA leads to
the conclusion that the “maximum term of imprisonment prescribed by
law” in this case was 10 years.
III
A
In an effort to defend the Ninth
Circuit’s decision, respondent offers both a textual argument and a
related argument based on the “manifest purpose” of ACCA. Brief for
Respondent 8.
Respondent’s textual argument is
as follows. The term “offense” “generally is understood to describe
the elements constituting the crime.”
Id., at 10. Because
prior convictions required for recidivist enhancements are not
typically offense elements, they should not be considered part of
the “offense” under ACCA. Thus, the “maximum term of imprisonment
prescribed by law” for the drug convictions at issue was the
maximum term prescribed for simply committing the elements of the
drug offense and was therefore five years.
Id., at
10–11.
Respondent’s argument is not faithful to the
statutory text. Respondent reads ACCA as referring to “the maximum
term of imprisonment prescribed by law” for a defendant
with no
prior convictions that trigger a recidivist enhancement, but
that is not what ACCA says. ACCA instead refers to “the maximum
term of imprisonment prescribed by law” for “an offense,” and, as
previously explained, in this case, the maximum term prescribed by
Washington law for each of respondent’s two relevant offenses was
10 years.
Respondent’s argument based on ACCA’s
“manifest purpose” must also be rejected. Respondent argues that
ACCA uses “the maximum penalty specified for the offense by state
law as a short-hand means of identifying conduct deemed
sufficiently ‘serious’ to trigger [the] mandatory penalty.”
Id., at 9. According to respondent, “[t]he nature of [a
defendant’s] conduct, the elements of the offense, and the impact
of the crime . . . are the characteristics that typically are used
to gauge the ‘seriousness’ of an offense,” and a defendant’s
“status as a recidivist has no connection to whether the offense
committed by the defendant was a ‘serious’ one.”
Id.
, at 11.
This argument rests on the erroneous
proposition that a defendant’s prior record of convictions has no
bearing on the seriousness of an offense. On the contrary, however,
an offense committed by a repeat offender is often thought to
reflect greater culpability and thus to merit greater punishment.
Similarly, a second or subsequent offense is often regarded as more
serious because it portends greater future danger and therefore
warrants an increased sentence for purposes of deterrence and
incapacitation. See
Witte v.
United States,
515 U. S. 389,
403 (1995);
Spencer v.
Texas,
385 U. S. 554, 570
(1967) (Warren, C. J., dissenting in two judgments and
concurring in one).
If respondent were correct that a defendant’s
record of prior convictions has no bearing on the seriousness of an
offense, then it would follow that any increased punishment imposed
under a recidivist provision would not be based on the offense of
conviction but on something else—presumably the defendant’s prior
crimes or the defendant’s “status as a recidivist,” Brief for
Respondent 11. But we have squarely rejected this understanding of
recidivism statutes. In
Nichols v.
United States,
511 U. S. 738
(1994), we explained that “ ‘[t]his Court consistently has
sustained repeat-offender laws as penalizing only the last offense
committed by the defendant.’ ”
Id., at 747 (quoting
Baldasar v.
Illinois,
446 U. S. 222, 232
(1980) (Powell, J., dissenting)). When a defendant is given a
higher sentence under a recidivism statute—or for that matter, when
a sentencing judge, under a guidelines regime or a discretionary
sentencing system, increases a sentence based on the defendant’s
criminal history—100% of the punishment is for the offense of
conviction. None is for the prior convictions or the defendant’s
“status as a recidivist.” The sentence “is a stiffened penalty for
the latest crime, which is considered to be an aggravated offense
because [it is] a repetitive one.”
Gryger v.
Burke,
334
U. S. 728, 732 (1948).
B
Respondent argues that our
interpretation of ACCA produces “a sort of perverse bootstrapping”
under which a defendant is “punished under federal law for being
treated as a recidivist under state law,” Brief for Respondent 20
(emphasis deleted), but the fact that ACCA is itself a recidivist
statute bolsters our reading. Since ACCA is a recidivist statute,
Congress must have had such provisions in mind and must have
understood that the “maximum penalty prescribed by [state] law” in
some cases would be increased by state recidivism provisions.
Contrary to respondent’s
suggestion,
United States v.
LaBonte,
520 U. S. 751 (1997),
supports our interpretation of ACCA. The statute at issue in
LaBonte, a provision of the Sentencing Reform Act of 1984,
as amended, 28 U. S. C. §994(h), directed the United States
Sentencing Commission to “assure” that the Sentencing Guidelines
specify a prison sentence “at or near the maximum term authorized
for categories of” adult offenders who commit their third felony
drug offense or violent crime. We held that the phrase “maximum
term authorized” “refers to all applicable statutes,” including
recidivist enhancements. 520 U. S., at 758, n. 4.
Respondent claims that
LaBonte
supports his position because ACCA, unlike 28 U. S. C.
§994(h), does not refer to “categories of” offenders. Respondent
suggests that Congress’ failure to include such language in ACCA
means that Congress intended to refer to a “maximum term” that does
not depend on whether a defendant falls into the
first-time-offender or recidivist “category.” Respondent does not
explain how 18 U. S. C. §924(e)(2)(A) could have easily been
reworded to mirror 28 U. S. C. §994(h). But in any event, the
language used in ACCA, for the reasons explained above, is more
than clear enough.
Respondent argues that the Ninth Circuit’s
decision is supported by the so-called “categorical” approach that
we used in
Taylor v.
United States,
495 U. S. 575 (1990), in
determining which offenses qualify as “violent felon[ies]” under 18
U. S. C. §924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii) provides
that four enumerated crimes—burglary, arson, extortion, and
offenses involving the use of explosives—are “violent felon[ies]”
for ACCA purposes. In
Taylor, we held that Congress
intended for these crimes to have a “uniform definition” that was
“independent of the labels employed by the various States’ criminal
codes.”
Id., at 592. According to respondent, “[t]he
categorical approach rests on the congressional intent—reflected in
the statutory language—to focus the ACCA inquiry on the offense of
conviction, rather than on collateral matters unrelated to the
definition of the crime.” Brief for Respondent 12.
We see no connection, however, between the
issue in
Taylor (the meaning of the term “burglary” in
§924(e)(2)(B)(ii)) and the issue here (the meaning of the phrase
“maximum term of imprisonment . . . prescribed by law” under
§924(e)(2)(A)(ii)).
Taylor held that the meaning of
“burglary” for purposes of ACCA does not depend on the label
attached by the law of a particular State, 495 U. S., at 600–601,
but the “maximum penalty prescribed by law” for a state offense
necessarily depends on state law.
For a similar reason, we reject respondent’s
argument that, under our interpretation, offenses that are not
really serious will be included as “serious drug offense[s]”
because of recidivist enhancements. In §924(e)(2)(A)(ii), Congress
chose to rely on the “maximum term of imprisonment . . .
prescribed” by state law as the measure of the seriousness of state
offenses involving the manufacture, distribution, or possession of
illegal drugs. Congress presumably thought—not without reason—that
if state lawmakers provide that a crime is punishable by 10 years’
imprisonment, the lawmakers must regard the crime as “serious,” and
Congress chose to defer to the state lawmakers’ judgment.
Therefore, our interpretation poses no risk that a drug-trafficking
offense will be treated as a “serious” without satisfying the
standard that Congress prescribed.[
Footnote 2]
C
Respondent argues that it will
often be difficult to determine whether a defendant faced the
possibility of a recidivist enhancement in connection with a past
state drug conviction and that therefore our interpretation of ACCA
will require the federal courts to “engage in difficult inquiries
regarding novel questions of state law and complex factual
determinations about long-past proceedings in state courts.” Brief
for Respondent 21. Respondent greatly exaggerates the problems to
which he refers.
First, in some cases, a defendant
will have received a recidivist enhancement, and this will
necessarily be evident from the length of the sentence imposed.
Second, as the present case illustrates, see App. 16, 42, 93, the
judgment of conviction will sometimes list the maximum possible
sentence even where the sentence that was imposed did not exceed
the top sentence allowed without any recidivist enhancement. Third,
as respondent himself notes, some jurisdictions require that the
prosecution submit a formal charging document in order to obtain a
recidivist enhancement. See Brief for Respondent 33. Such documents
fall within the limited list of generally available documents that
courts already consult for the purpose of determining if a past
conviction qualifies as an ACCA predicate. See
Shepard v.
United States,
544 U. S. 13, 20 (2005).
Fourth, in those cases in which the defendant pleaded guilty to the
state drug charges, the plea colloquy will very often include a
statement by the trial judge regarding the maximum penalty. This is
mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and
many States have similar requirements.[
Footnote 3] Finally, in those cases in which the records
that may properly be consulted do not show that the defendant faced
the possibility of a recidivist enhancement, it may well be that
the Government will be precluded from establishing that a
conviction was for a qualifying offense. The mere possibility that
some future cases might present difficulties cannot justify a
reading of ACCA that disregards the clear meaning of the statutory
language.
D
Respondent’s last argument is
that if recidivist enhancements can increase the “maximum term” of
imprisonment under ACCA, it must follow that mandatory guidelines
systems that cap sentences can decrease the “maximum term” of
imprisonment. Brief for Respondent 38. In each situation,
respondent argues, the “maximum term” of imprisonment is the term
to which the state court could actually have sentenced the
defendant. Respondent concedes that he has waived this argument
with respect to his own specific state-court convictions. See Brief
in Opposition 15, n. 7. He argues, however, that Congress
cannot have wanted to make the “maximum term” of imprisonment for
ACCA purposes dependent on the complexities of state sentencing
guidelines. We conclude, however, that the phrase “maximum term of
imprisonment . . . prescribed by law” for the “offense” was not
meant to apply to the top sentence in a guidelines range.
First, the top sentence in a
guidelines range is generally not really the “maximum term . . .
prescribed by law” for the “offense” because guidelines systems
typically allow a sentencing judge to impose a sentence that
exceeds the top of the guidelines range under appropriate
circumstances. The United States Sentencing Guidelines, for
example, permit “upward departures,” see United States Sentencing
Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially
the same characteristic was shared by all of the mandatory
guidelines system in existence at the time of the enactment of the
ACCA provision at issue in this case.[
Footnote 4] (Following this pattern, Washington law
likewise provided at the time of respondent’s state convictions
that a sentencing judge could “impose a sentence outside the
standard sentence range” upon a finding “that there [were]
substantial and compelling reasons justifying an exceptional
sentence.” Wash. Rev. Code §9.94A.120(2) (1994).[
Footnote 5])
Second, the concept of the “maximum” term of
imprisonment or sentence prescribed by law was used in many
statutes that predated the enactment of ACCA and the federal
Sentencing Reform Act of 1984, Pub. L. 98–473, §211, 98 Stat. 1987,
and in all those statutes the concept necessarily referred to the
maximum term prescribed by the relevant criminal statute, not the
top of a sentencing guideline range. See,
e.g., 18 U.
S. C. §3 (1982 ed.) (“[A]n accessory after the fact shall be
imprisoned not more than one-half the maximum term of imprisonment
… for the punishment of the principal”); §3575(b) (allowing for an
increased sentence for dangerous special offenders “not
disproportionate in severity to the maximum term otherwise
authorized by law for” the underlying felony); see also §371 (the
punishment for conspiracy to commit a misdemeanor “shall not exceed
the maximum punishment provided for such misdemeanor”); §3651
(allowing for confinement and suspension of sentence upon
conviction of an offense not punishable by death or life
imprisonment “if the maximum sentence for such offense is more than
six months”); §3653 (referring to the “maximum probation
period”).
It is instructive that, even in the Sentencing
Reform Act, the concept of the “maximum term of imprisonment”
prescribed for an offense was used in this sense. See §212, 98
Stat. 1991–1992 (new 18 U. S. C. §3559 classifying offenses
based on “the maximum term of imprisonment authorized … by the
statute describing the offense”); §235(b)(1)(F), 98 Stat. 2032
(“The maximum term of imprisonment in effect on the effective date
[of the Sentencing Reform Act]” remains in effect for five years
after the effective date “for an offense committed before the
effective date”); §1003(a),
id., at 2138 (solicitation to
commit a crime of violence punishable by “one-half the maximum term
of imprisonment . . . prescribed for the punishment of the crime
solicited”). In light of this established pattern and the relative
newness of sentencing guidelines systems when the ACCA provision at
issue here was added, we conclude that Congress meant for the
concept of the “maximum term of imprisonment” prescribed by law for
an “offense” to have same meaning in ACCA.
Our decision in
United States v.
R. L. C.,
503 U. S. 291 (1992), is
not to the contrary. The statutory provision there, 18 U.
S. C. §5037(c) (2000 ed.), set out the term of official
detention for a juvenile found to be a delinquent. This provision
was amended by the Sentencing Reform Act, see §214, 98 Stat. 2013,
and then amended again two years later, see §§21(a)(2)–(4), 100
Stat. 3596. As thus amended, the provision did not refer to the
“maximum term of imprisonment” prescribed for an “offense.” Rather,
the provision focused on the particular juvenile being sentenced.
It provided that, “ ‘in the case of a juvenile who is less
than eighteen years old,’ ” official detention could not
extend beyond the earlier of two dates: the juvenile’s 21st
birthday or “ ‘the maximum term of imprisonment that would be
authorized if the juvenile had been tried and convicted as an
adult.’ ”
United States v.
R. L. C.,
supra, at
295–296, n. 1 (quoting 18 U. S. C. §5037(c)). Because
this provision clearly focuses on the circumstances of the
particular juvenile and not on the offense, 503 U. S., at 299, it
is not analogous to the ACCA provision that is before us in this
case.
* * *
For these reasons, we hold that
the “maximum term of imprisonment … prescribed by law” for the
state drug convictions at issue in this case was the 10-year
maximum set by the applicable recidivist provision. Accordingly, we
reverse the judgment of the Court of Appeals and remand the case
for further proceedings consistent with this opinion.
It is so ordered.
Footnote 1
“Except as authorized by this chapter, it is
unlawful for any person to manufacture, deliver, or possess with
intent to manufacture or deliver a controlled substance.” Wash.
Rev. Code §69.50.401(a)(1994).
Footnote 2
In any event, the only “minor drug crime”
that respondent identifies as potentially constituting an ACCA
predicate based on recidivist enhancement is distribution of a 21
U. S. C. §812, Schedule III narcotic in violation of Mich.
Comp. Laws Ann. §333.7401(2)(b)(ii) (West Supp. 2007). Given that
Schedule III substances include anabolic steroids and painkillers
with specified amounts of certain narcotics like opium, see 21 U.
S. C. §812, one might debate respondent’s assertion that
distribution of these narcotics is not “serious” in the generic
sense of the word. However, Congress chose to defer to the Michigan
Legislature’s judgment that the offense was “serious” enough to
warrant punishment of first offenses by up to seven years’
imprisonment, and certain repeat offenses by a maximum term of life
imprisonment. See Mich. Comp. Laws Ann. §§333.7401(2)(b)(ii),
333.769.12(1).
Footnote 3
See,
e.g., Kan. Stat. Ann.
§22–3210(a)(2) (2007); N. C. Gen. Stat. Ann. §15A–1022(a)(6)
(Lexis 2007); Tex. Crim. Proc. Code Ann. §§26.13(a)(1), (d) (West
Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(1)(ii) (Lexis 2007);
Fla. Rule Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga. Uniform
Super. Ct. Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule
402(a)(2) (West 2007); Pa. Rule Crim. Proc. 590,
comment
(West 2008); Ohio Rule Crim. Proc. 11(C)(2)(a) (West 2008); Mich.
Rule Crim. Proc. 6.302(B)(2) (West 2007);
Alexander v.
State, 605 So. 2d 1170, 1172 (Miss. 1992);
Bunnell v.
Superior Court, 13 Cal. 3d 592,
604–605, 531 P. 2d 1086, 1094 (1975).
Footnote 4
By 1986, when Congress added the relevant
statutory language, see Pub. L. 99–570, §1402, 100 Stat. 3207–39,
eight States had guidelines systems in effect. See Frase, State
Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy
Issues, 105 Colum. L. Rev. 1190, 1196, Table 1 (2005). Two of
those States (Utah and Maryland) had voluntary guidelines,
id., at 1198, and the other six States had guidelines
systems that allowed for sentences in excess of the recommended
range in various circumstances, see
People v.
Miles, 156 Mich. App. 431, 437, 402 N. W. 2d 34, 37
(1986) (remanding for the trial court to state reasons for upward
departure);
Staats v.
State, 717 P. 2d 413,
422 (Alaska App. 1986) (affirming upward departure);
State
v.
Armstrong, 106 Wash. 2d 547, 549–550, 723 P. 2d
1111, 1113–1114 (1986) (en banc) (same);
State v.
Mortland, 395 N. W. 2d 469, 474 (Minn. App. 1986)
(same);
Walker v.
State, 496 So. 2d 220
(Fla. App. 1986)
(per curiam) (same);
Commonwealth v.
Mills, 344 Pa. Super. 200, 204,
496 A. 2d 752, 754 (1985) (same).
Footnote 5
While Washington law provided a list of
“illustrative factors which the court [could] consider in the
exercise of its discretion to impose an exceptional sentence,” the
list was “not intended to be exclusive” of other potential reasons
for departing. §9.94A.390.
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