OCTOBER TERM, 1994
Syllabus
WITTE
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 94-6187. Argued April 17, 1995-Decided June 14, 1995
After petitioner Witte pleaded guilty to a federal marijuana
charge, a presentence report calculated the base offense level
under the United States Sentencing Guidelines by aggregating the
total quantity of drugs involved not only in Witte's offense of
conviction but also in uncharged criminal conduct in which he had
engaged with several co-conspirators. The resulting sentencing
range was higher than it would have been if only the drugs involved
in his conviction had been considered, but it still fell within the
scope of the legislatively authorized penalty. The District Court
accepted the report's aggregation in sentencing Witte, concluding
that the other offenses were part of a continuing conspiracy that
should be taken into account under the Guidelines as "relevant
conduct," United States Sentencing Commission, Guidelines Manual §
1B1.3. When Witte was subsequently indicted for conspiring and
attempting to import cocaine, he moved to dismiss the charges,
arguing that he had already been punished for the offenses because
that cocaine had been considered as "relevant conduct" at his
marijuana sentencing. The court dismissed the indictment on grounds
that punishment for the cocaine offenses would violate the Double
Jeopardy Clause's prohibition against multiple punishments, but the
Court of Appeals reversed. Relying on this Court's decision in
Williams v.
Oklahoma, 358 U. S. 576 (1959), it
held that the use of relevant conduct to increase the punishment
for a charged offense does not punish the offender for the relevant
conduct.
Held: Because consideration of relevant conduct in
determining a defendant's sentence within the legislatively
authorized punishment range does not constitute punishment for that
conduct within the meaning of the Double Jeopardy Clause, Witte's
prosecution on cocaine charges does not violate the prohibition
against multiple punishments. Pp. 395-406.
(a) This Court's precedents make clear that a defendant in
Witte's situation is only punished, for double jeopardy purposes,
for the offense of conviction. Traditionally, a sentencing judge
may conduct a broad inquiry, largely unlimited either as to the
kind of information he may consider or the source from which it may
come. Against this background of sentencing history, the Court, in
Williams, supra, specifically rejected the claim that double
jeopardy principles bar a later prosecu-
390
Syllabus
tion or punishment for criminal activity where that activity has
been considered at sentencing for a separate crime.
Williams
governs this case, for it makes no difference in this context
whether the enhancement occurred in the first or second proceeding.
Here, as in
Williams, the uncharged criminal conduct was
used to enhance Witte's sentence within the range authorized by
statute. Pp. 395-400.
(b) Other decisions of this Court reinforce the conclusion
reached here. In repeatedly upholding recidivism statutes, the
Court has rejected double jeopardy challenges because enhanced
punishment imposed for a later offense is viewed as a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because it is a repetitive one. See,
e. g.,
Gryger v.
Burke, 334 U. S. 728, 732. In
addition, by authorizing the consideration of offender-specific
information at sentencing without the procedural protections
attendant at a criminal trial, the Court's cases necessarily imply
that such consideration does not result in "punishment" for such
conduct. See,
e. g., McMillan v.
Pennsylvania,
477 U. S. 79. Pp.
400-40l.
(c) Contrary to Witte's suggestion, the Guidelines do not
somehow change the constitutional analysis. A defendant has not
been "punished" any more for double jeopardy purposes when relevant
conduct is included in the calculation of his offense level under
the Guidelines than when a pre-Guidelines court, in its discretion,
took similar uncharged conduct into account. In each case, the
defendant is still being punished, for double jeopardy purposes,
only for the offense of conviction. pp. 401-404.
(d) The Guidelines include significant safeguards to protect
Witte against having the length of his second sentence multiplied
by duplicative consideration of the same criminal conduct already
considered as "relevant conduct" for the marijuana sentence. And he
would be able to vindicate his interests through appropriate
appeals should the Guidelines be misapplied in any future
sentencing proceeding. Even if the Sentencing Commission had not
formalized sentencing for multiple convictions, district courts
retain enough flexibility under the Guidelines to take into account
the fact that conduct underlying the offense at issue has
previously been taken into account in sentencing for another
offense. Pp. 404-406.
25 F.3d
250, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in Parts I,
II, and IV of which REHNQUIST, C. J., and KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., joined, and in Part III of which
STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J.,
filed an opinion concurring in
391
the judgment, in which THOMAS, J., joined,
post, p. 406.
STEVENS, J., filed an opinion concurring in part and dissenting in
part,
post, p. 407.
H. Michael Sokolow argued the cause for petitioner.
With him on the briefs were Roland E. Dahlin II and Thomas S.
Berg.
Edward C. DuMont argued the cause for the United States. With
him on the brief were Solicitor General Days, Assistant Attorney
General Harris, Deputy Solicitor General Dreeben, and Joseph C.
Wyderko. *
JUSTICE O'CONNOR delivered the opinion of the Court.t The Double
Jeopardy Clause of the Fifth Amendment to the United States
Constitution prohibits successive prosecution or multiple
punishment for "the same offence." This case, which involves
application of the United States Sentencing Guidelines, asks us to
consider whether a court violates that proscription by convicting
and sentencing a defendant for a crime when the conduct underlying
that offense has been considered in determining the defendant's
sentence for a previous conviction.
I
In June 1990, petitioner Steven Kurt Witte and several
co-conspirators, including Dennis Mason and Tom Pokorny, arranged
with Roger Norman, an undercover agent of the Drug Enforcement
Administration, to import large amounts of marijuana from Mexico
and cocaine from Guatemala. Norman had the task offiying the
contraband into the United States, with Witte providing the ground
transportation for the drugs once they had been brought into the
country. The following month, the Mexican marijuana source advised
the conspiracy participants that cocaine might be added to the
*Peter Goldberger and
Scott A. Srebnick filed a
brief for the National Association of Legal Defense Lawyers as
amicus curiae urging reversal. tTHE CHIEF JUSTICE and
JUSTICE KENNEDY join all but Part III of this opinion, and JUSTICE
STEVENS joins only Part III.
392
first shipment if there was room on the plane or if an
insufficient quantity of marijuana was available. Norman was
informed in August 1990 that the source was prepared to deliver
4,400 pounds of marijuana. Once Norman learned the location of the
airstrip from which the narcotics would be transported, federal
agents arranged to have the participants in the scheme apprehended
in Mexico. Local authorities arrested Mason and four others on
August 12 and seized 591 kilograms of cocaine at the landing field.
While still undercover, Norman met Witte the following day to
explain that the pilots had been unable to land in Mexico because
police had raided the airstrip. Witte was not taken into custody at
that time, and the activities of the conspiracy lapsed for several
months.
Agent Norman next spoke with Witte in January 1991 and asked if
Witte would be interested in purchasing 1,000 pounds of marijuana.
Witte agreed, promised to obtain a $50,000 down payment, and
indicated that he would transport the marijuana in a horse trailer
he had purchased for the original 1990 transaction and in a motor
home owned by an acquaintance, Sam Kelly. On February 7, Witte,
Norman, and Kelly met in Houston, Texas. Norman agreed to give the
drugs to Witte in exchange for the $25,000 in cash Witte had been
able to secure at that time and for a promise to pay the balance of
the down payment in three days. Undercover agents took the motor
home and trailer away to load the marijuana, and Witte escorted
Norman to Witte's hotel room to view the money. The agents returned
the vehicles the next morning loaded with approximately 375 pounds
of marijuana, and they arrested Witte and Kelly when the two men
took possession of the contraband.
In March 1991, a federal grand jury in the Southern District of
Texas indicted Witte and Kelly for conspiring and attempting to
possess marijuana with intent to distribute it, in violation of 21
U. S. C. §§ 841(a) and 846. The indictment was limited on its face
to conduct occurring on or about
393
January 25 through February 8, 1991, thus covering only the
later marijuana transaction. On February 21, 1992, Witte pleaded
guilty to the attempted possession count and agreed to cooperate
"with the Government by providing truthful and complete information
concerning this and all other offenses about which [he] might be
questioned by agents of law enforcement," and by testifying if
requested to do so. App. 14. In exchange, the Government agreed to
dismiss the conspiracy count and, if Witte's cooperation amounted
to "substantial assistance," to file a motion for a downward
departure under the Sentencing Guidelines. See United States
Sentencing Commission, Guidelines Manual § 5K1.1 (Nov. 1994)
(USSG).
In calculating Witte's base offense level under the Sentencing
Guidelines, the presentence report prepared by the United States
Probation Office considered the total quantity of drugs involved in
all of the transactions contemplated by the conspirators, including
the planned 1990 shipments of both marijuana and cocaine. Under the
Sentencing Guidelines, the sentencing range for a particular
offense is determined on the basis of all "relevant conduct" in
which the defendant was engaged and not just with regard to the
conduct underlying the offense of conviction. USSG § 1B1.3. The
Sentencing Commission has noted that, "[w]ith respect to offenses
involving contraband (including controlled substances), the
defendant is accountable for all quantities of contraband with
which he was directly involved and, in the case of a jointly
undertaken criminal activity, all reasonably foreseeable quantities
of contraband that were within the scope of the criminal activity
that he jointly undertook." USSG § 1B1.3, comment., n. 2; see also
USSG § 2D1.1, comment., nn. 6, 12. The presentence report therefore
suggested that Witte was accountable for the 1,000 pounds of
marijuana involved in the attempted possession offense to which he
pleaded guilty, 15 tons of marijuana that Witte, Mason, and Pokorny
had planned to import from Mexico in
394
1990, 500 kilograms of cocaine that the conspirators originally
proposed to import from Guatemala, and the 591 kilograms of cocaine
seized at the Mexican airstrip in August 1990.
At the sentencing hearing, both petitioner and the Government
urged the court to hold that the 1990 activities concerning
importation of cocaine and marijuana were not part of the same
course of conduct as the 1991 marijuana offense to which Witte had
pleaded guilty, and therefore should not be considered in
sentencing for the 1991 offense. The District Court concluded,
however, that because the 1990 importation offenses were part of
the same continuing conspiracy, they were "relevant conduct" under
§ 1B1.3 of the Guidelines and should be taken into account. The
court therefore accepted the presentence report's aggregation of
the quantities of drugs involved in the 1990 and 1991 episodes,
resulting in a base offense level of 40, with a Guideline range of
292 to 365 months' imprisonment. App. 80-81; see also USSG § 2D1.1.
From that base offense level, Witte received a two-level increase
for his aggravating role in the offense, see USSG § 3B1.1, and an
offsetting two-level decrease for acceptance of responsibility, see
USSG § 3E 1.1. Finally, the court granted the Government's § 5K1.1
motion for downward departure based on Witte's substantial
assistance. By virtue of that departure, the court sentenced Witte
to 144 months in prison, see App. 76, which was 148 months below
the minimum sentence of 292 months under the predeparture Guideline
range. Witte appealed, but the Court of Appeals dismissed the case
when Witte failed to file a brief.
In September 1992, another grand jury in the same district
returned a two-count indictment against Witte and Pokorny for
conspiring and attempting to import cocaine, in violation of 21 U.
S. C. §§ 952(a) and 963. The indictment alleged that, between
August 1989 and August 1990, Witte tried to import about 1,091
kilograms of cocaine from Central America. Witte moved to dismiss,
arguing that he had already been
395
punished for the cocaine offenses because the cocaine involved
in the 1990 transactions had been considered as "relevant conduct"
at sentencing for the 1991 marijuana offense. The District Court
dismissed the indictment in February 1993 on grounds that
punishment for the indicted offenses would violate the prohibition
against multiple punishments contained in the Double Jeopardy
Clause of the Fifth Amendment. App. 130-136.
The Court of Appeals for the Fifth Circuit reversed.
25 F.3d
250 (1994). Relying on our decision in
Williams v.
Oklahoma, 358
U. S. 576 (1959), the court held that "the use of relevant
conduct to increase the punishment of a charged offense does not
punish the offender for the relevant conduct." 25 F. 3d, at 258.
Thus, although the sentencing court took the quantity of cocaine
involved in the 1990 importation scheme into account when
determining the sentence for Witte's 1991 marijuana possession
offense, the Court of Appeals concluded that Witte had not been
punished for the cocaine offenses in the first prosecution-and that
the Double Jeopardy Clause therefore did not bar the later action.
In reaching this result, the court expressly disagreed with
contrary holdings in
United States v.
Koonce,
945 F.2d
1145 (CAlO 1991), cert. denied, 503 U. S. 994 (1992), and
United States v.
McCormick, 992
F.2d 437 (CA2 1993), that when a defendant's actions are
included in relevant conduct in determining the punishment under
the Sentencing Guidelines for one offense, those actions may not
form the basis for a later indictment without violating double
jeopardy. We granted certiorari to resolve the conflict among the
Circuits, 513 U. S. 1072 (1995), and now affirm.
II
The Double Jeopardy Clause provides: "[N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb." U. S. Const., Amdt. 5. We have explained that "the Clause
serves the function of preventing
396
both successive punishment and successive prosecution,"
United States v.
Dixon, 509 U. S. 688, 704 (1993)
(citing
North Carolina v.
Pearce, 395 U. S. 711 (1969)),
and that "the Constitution was designed as much to prevent the
criminal from being twice punished for the same offence as from
being twice tried for it,"
Ex parte Lange, 18 Wall. 163, 173
(1874). See also
Schiro v.
Farley, 510 U. S. 222, 229-230
(1994);
United States v.
Halper, 490 U. S. 435, 440, 451,
n. 10 (1989). Significantly, the language of the Double Jeopardy
Clause protects against more than the actual imposition of two
punishments for the same offense; by its terms, it protects a
criminal defendant from being
twice put in jeopardy for such
punishment. See
Price v.
Georgia, 398 U. S. 323, 326
(1970). That is, the Double Jeopardy Clause "prohibits merely
punishing twice, or
attempting a second time to punish
criminally, for the same offense."
Helvering v.
Mitchell, 303 U. S. 391, 399 (1938) (emphasis added).
Petitioner clearly was neither prosecuted for nor convicted of
the cocaine offenses during the first criminal proceeding. The
offense to which petitioner pleaded guilty and for which he was
sentenced in 1992 was attempted possession of marijuana with intent
to distribute it, whereas the crimes charged in the instant
indictment are conspiracy to import cocaine and attempted
importation of the same. Under
Blockburger v.
United
States, 284 U. S.
299, 304 (1932), "where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other
does not." See also
Dixon, supra, at 696 (emphasizing that
the same inquiry generally applies "[i]n both the multiple
punishment and multiple prosecution contexts"). Under the
Blockburger test, the indictment in this case did not charge
the same offense to which petitioner formerly had pleaded
guilty.
397
Petitioner nevertheless argues that, because the conduct giving
rise to the cocaine charges
was taken into account during
sentencing for the marijuana conviction, he effectively was
"punished" for that conduct during the first proceeding. As a
result, he contends, the Double Jeopardy Clause bars the instant
prosecution. This claim is ripe at this stage of the
prosecution-although petitioner has not yet been convicted of the
cocaine offenses-because, as we have said, "courts may not impose
more than one punishment for the same offense and prosecutors
ordinarily may not attempt to secure that punishment in more than
one trial."
Brown v.
Ohio, 432 U. S. 161, 165
(1977). See also
Ball v.
United States, 470 U. S. 856, 861,
864-865 (1985) (explaining that, for purposes of the double
jeopardy inquiry, punishment "must be the equivalent of a criminal
conviction and not simply the imposition of sentence");
Ex parte
Lange, supra, at 173. Thus, if petitioner is correct that the
present case constitutes a second attempt to punish him criminally
for the same cocaine offenses, see
Helvering, supra, at 399,
then the prosecution may not proceed. We agree with the Court of
Appeals, however, that petitioner's double jeopardy theorythat
consideration of uncharged conduct in arriving at a sentence within
the statutorily authorized punishment range constitutes
"punishment" for that conduct-is not supported by our precedents,
which make clear that a defendant in that situation is punished,
for double jeopardy purposes, only for the offense of which the
defendant is convicted.
Traditionally, "[sJentencing courts have not only taken into
consideration a defendant's prior convictions, but have also
considered a defendant's past criminal behavior, even if no
conviction resulted from that behavior."
Nichols v.
United States, 511 U. S. 738, 747
(1994). We explained in
Williams v.
New York,
337 U. S. 241,
246 (1949), that "both before and since the American colonies
became a nation, courts in this country and in England practiced a
policy under which a sentencing judge could exercise a wide
discretion in the sources
398
and types of evidence used to assist him in determining the kind
and extent of punishment to be imposed within limits fixed by law."
That history, combined with a recognition of the need for
individualized sentencing, led us to conclude that the Due Process
Clause did not require "that courts throughout the Nation abandon
their age-old practice of seeking information from out-of-court
sources to guide their judgment toward a more enlightened and just
sentence."
Id., at 250-251. Thus, "[a]s a general
proposition, a sentencing judge 'may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may
come.'"
Nichols, supra, at 747 (quoting
United States
v.
Tucker, 404
U. S. 443, 446 (1972)). See also
Wisconsin v.
Mitchell, 508 U. S. 476, 485 (1993).
Against this background of sentencing history, we specifically
have rejected the claim that double jeopardy principles bar a later
prosecution or punishment for criminal activity where that activity
has been considered at sentencing for a separate crime.
Williams v.
Oklahoma, 358 U. S., at 576, arose out of
a kidnaping and murder committed by the petitioner while attempting
to escape from police after a robbery. Following his arrest,
Williams pleaded guilty to murder and was given a life sentence. He
was later convicted of kidnaping, which was then a capital offense
in Oklahoma, and the sentencing court took into account, in
assessing the death penalty, the fact that the kidnaping victim had
been murdered. We rejected Williams' contention that this use of
the conduct that had given rise to the prior conviction violated
double jeopardy. Emphasizing that "the exercise of a sound
discretion in such a case required consideration of all the
circumstances of the crime," we made clear that "one of the
aggravating circumstances involved in this kidnaping crime was the
fact that petitioner shot and killed the victim in the course of
its commission," and rejected the claim "that the sentencing judge
was not entitled to consider that cir-
399
cumstance, along with all the other circumstances involved, in
determining the proper sentence to be imposed for the kidnaping
crime."
Id., at 585-586. We then disposed of the
petitioner's double jeopardy claim as follows: "[I]n view of the
obvious fact that, under the law of Oklahoma, kidnaping is a
separate crime, entirely distinct from the crime of murder, the
court's consideration of the murder as a circumstance involved in
the kidnaping crime cannot be said to have resulted in punishing
petitioner a second time for the same offense .... "
Id., at
586. We thus made clear that use of evidence of related criminal
conduct to enhance a defendant's sentence for a separate crime
within the authorized statutory limits does not constitute
punishment for that conduct within the meaning of the Double
Jeopardy Clause.
We find this case to be governed by
Williams; it makes no
difference in this context whether the enhancement occurred in the
first or second sentencing proceeding. Here, petitioner pleaded
guilty to attempted possession of marijuana with intent to
distribute it, in violation of 21 U. S. C. §§ 841(a) and 846. The
statute provides that the sentence for such a crime involving 100
kilograms or more of marijuana must be between 5 and 40 years in
prison. § 841(b)(1)(B). By including the cocaine from the earlier
transaction-and not just the marijuana involved in the offense of
conviction-in the drug quantity calculation, the District Court
ended up with a higher offense level (40), and a higher sentence
range (292 to 365 months), than it would have otherwise under the
applicable Guideline, which specifies different base offense levels
depending on the quantity of drugs involved. USSG § 2D1.1. This
higher Guideline range, however, still falls within the scope of
the legislatively authorized penalty (5 to 40 years). As in
Williams, the uncharged criminal conduct was used to enhance
petitioner's sentence within the range authorized by statute. If
use of the murder to justify the death sentence for the kidnaping
conviction was not "punishment" for the murder in
Williams,
it is impossible to con-
400
clude that taking account of petitioner's plans to import
cocaine in fixing the sentence for the marijuana conviction
constituted "punishment" for the cocaine offenses.
Williams, like this case, concerned the double jeopardy
implications of taking the circumstances surrounding a particular
course of criminal activity into account in sentencing for a
conviction arising therefrom. Similarly, we have made clear in
other cases, which involved a defendant's background more generally
and not conduct arising out of the same criminal transaction as the
offense of which the defendant was convicted, that "[e]nhancement
statutes, whether in the nature of criminal history provisions such
as those contained in the Sentencing Guidelines, or recidivist
statutes which are common place in state criminal laws, do not
change the penalty imposed for the earlier conviction."
Nichols, 511 U. S., at 747 (approving consideration of a
defendant's previous uncounseled misdemeanor conviction in
sentencing him for a subsequent offense). In repeatedly upholding
such recidivism statutes, we have rejected double jeopardy
challenges because the enhanced punishment imposed for the later
offense "is not to be viewed as either a new jeopardy or additional
penalty for the earlier crimes," but instead as "a stiffened
penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one."
Gryger v.
Burke, 334 U.
S. 728, 732 (1948). See also
Spencer v.
Texas,
385 U. S. 554,
560 (1967);
Oyler v.
Boles, 368 U. S. 448, 451
(1962); Moore v.
Missouri, 159 U. S. 673, 677 (1895)
(under a recidivist statute, "the accused is not again punished for
the first offence" because" 'the punishment is for the last offence
committed, and it is rendered more severe in consequence of the
situation into which the party had previously brought himself'
").
In addition, by authorizing the consideration of
offenderspecific information at sentencing without the procedural
protections attendant at a criminal trial, our cases necessarily
imply that such consideration does not result in "punish-
401
ment" for such conduct. In
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), we
upheld against a due process challenge Pennsylvania's Mandatory
Minimum Sentencing Act, which imposed a 5-year minimum sentence for
certain enumerated felonies if the sentencing judge found, by a
preponderance of the evidence, that the defendant "visibly
possessed a firearm" during the commission of the offense.
Significantly, we emphasized that the statute at issue "neither
alters the maximum penalty for the crime committed nor creates a
separate offense calling for a separate penalty; it operates solely
to limit the sentencing court's discretion in selecting a penalty
within the range already available to it without the special
finding of visible possession of a firearm."
Id., at 87-88.
That is, the statute "simply took one factor that has always been
considered by sentencing courts to bear on punishment-the
instrumentality used in committing a violent felony-and dictated
the precise weight to be given that factor if the instrumentality
is a firearm."
Id., at 89-90. For this reason, we approved
the lesser standard of proof provided for in the statute, thereby
"reject[ing] the claim that whenever a State links the 'severity of
punishment' to 'the presence or absence of an identified fact' the
State must prove that fact beyond a reasonable doubt."
Id.,
at 84 (quoting
Patterson v.
New York, 432 U. S. 197, 214
(1977)). These decisions reinforce our conclusion that
consideration of information about the defendant's character and
conduct at sentencing does not result in "punishment" for any
offense other than the one of which the defendant was
convicted.
We are not persuaded by petitioner's suggestion that the
Sentencing Guidelines somehow change the constitutional analysis. A
defendant has not been "punished" any more for double jeopardy
purposes when relevant conduct is included in the calculation of
his offense level under the Guidelines than when a pre-Guidelines
court, in its discretion, took similar uncharged conduct into
account. Cf.
McMillan, supra, at 92 (perceiving no
difference in the due process cal-
402
culus depending upon whether consideration of the sentencing
factor was discretionary or mandatory). As the Government argues,
"[t]he fact that the sentencing process has become more transparent
under the Guidelines ... does not mean that the defendant is now
being 'punished' for uncharged relevant conduct as though it were a
distinct criminal 'offense.'" Brief for United States 23. The
relevant conduct provisions are designed to channel the sentencing
discretion of the district courts and to make mandatory the
consideration of factors that previously would have been optional.
United States v.
Wright, 873 F.2d
437, 441 (CA1 1989) (Breyer, J.) (explaining that, "very
roughly speaking, [relevant conduct] corresponds to those actions
and circumstances that courts typically took into account when
sentencing prior to the Guidelines' enactment"). See also
Burns v.
United States, 501 U. S. 129, 133
(1991);
Mistretta v.
United States, 488 U. S. 361, 363-367
(1989). Regardless of whether particular conduct is taken into
account by rule or as an act of discretion, the defendant is still
being punished only for the offense of conviction.
JUSTICE STEVENS disagrees with our conclusion because, he
contends, "[u]nder the Guidelines, ... an offense that is included
as 'relevant conduct' does not relate to the character of the
offender (which is reflected instead by criminal history), but
rather measures only the character of the offense."
Post, at
411. The criminal history section of the Guidelines, however, does
not seem to create this bright line distinction; indeed, the
difference between "criminal history" and "relevant conduct" is
more temporal than qualitative, with the former referring simply to
a defendant's
past criminal conduct (as evidenced by
convictions and prison terms), see USSG § 4A1.1, and the latter
covering activity arising out of the same course of criminal
conduct as the instant offense, see USSG § 1B1.3.
To the extent that the Guidelines aggravate punishment for
related conduct outside the elements of the crime on the
403
theory that such conduct bears on the "character of the
offense," the offender is still punished only for the fact that the
present offense was carried out in a manner that warrants
increased punishment, not for a
different offense (which
that related conduct mayor may not constitute). But, while relevant
conduct thus may relate to the severity of the particular crime,
the commission of multiple offenses in the same course of conduct
also necessarily provides important evidence that the character of
the offender requires special punishment. Similarly, as we have
said in the recidivism cases, a crime committed by an offender with
a prior conviction "is considered to be an aggravated offense
because a repetitive one."
Gryger, 334 U. S., at 732.
Nothing about the labels given to these categories controls the use
to which such information is put at sentencing. Under the
Guidelines, therefore, as under the traditional sentencing regimes
JusTICE STEVENS approves, "it is difficult if not impossible to
determine whether a given offense has affected the judge's
assessment of the character of the offender, the character of the
offense, or both."
Post, at 411 (STEVENS, J., dissenting).
Even under JUSTICE STEVENS' framework, the structure of the
Guidelines should not affect the outcome of this case.
The relevant conduct provisions of the Sentencing Guidelines,
like their criminal history counterparts and the recidivism
statutes discussed above, are sentencing enhancement regimes
evincing the judgment that a particular offense should receive a
more serious sentence within the authorized range if it was either
accompanied by or preceded by additional criminal activity.
Petitioner does not argue that the range fixed by Congress is so
broad, and the enhancing role played by the relevant conduct so
significant, that consideration of that conduct in sentencing has
become "a tail which wags the dog of the substantive offense."
McMillan, 477 U. S., at 88; cf.
Mullaney v.
Wilbur, 421 U.
S. 684, 700 (1975). We hold that, where the legislature has
authorized such a particular punishment range for a given crime,
the resulting
404
sentence within that range constitutes punishment only for the
offense of conviction for purposes of the double jeopardy inquiry.
Accordingly, the instant prosecution for the cocaine offenses is
not barred by the Double Jeopardy Clause as a second attempt to
punish petitioner for the same crime.
III
At its core, much of petitioner's argument addresses not a claim
that the instant cocaine prosecution violates principles of double
jeopardy, but the more modest contention that he should not receive
a second sentence under the Guidelines for the cocaine activities
that were considered as relevant conduct for the marijuana
sentence. As an examination of the pertinent sections should make
clear, however, the Guidelines take into account the potential
unfairness with which petitioner is concerned.
Petitioner argues that the Sentencing Guidelines require that
drug offenders be sentenced in a single proceeding for all related
offenses, whether charged or uncharged. See Brief for Petitioner
20-23. Yet while the Guidelines certainly envision that sentences
for multiple offenses arising out of the same criminal activity
ordinarily will be imposed together, they also explicitly
contemplate the possibility of separate prosecutions involving the
same or overlapping "relevant conduct." See USSG §5G1.3, comment.,
n. 2 (addressing cases in which "a defendant is prosecuted in ...
two or more federal jurisdictions, for the same criminal conduct or
for different criminal transactions that were part of the same
course of conduct"). There are often valid reasons why related
crimes committed by the same defendant are not prosecuted in the
same proceeding, and § 5G1.3 of the Guidelines attempts to achieve
some coordination of sentences imposed in such situations with an
eye toward having such punishments approximate the total penalty
that would have been imposed had the sentences for the different
offenses been imposed at the same time (i.
e., had all
405
of the offenses been prosecuted in a single proceeding). See
USSG § 5G 1.3, comment., n. 3.
Because the concept of relevant conduct under the Guidelines is
reciprocal, § 5G 1.3 operates to mitigate the possibility that the
fortuity of two separate prosecutions will grossly increase a
defendant's sentence. If a defendant is serving an undischarged
term of imprisonment "result[ing] from offense(s) that have been
fully taken into account [as relevant conduct] in the determination
of the offense level for the instant offense," § 5G 1.3(b) provides
that "the sentence for the instant offense shall be imposed to run
concurrently to the undischarged term of imprisonment." And where
§5G1.3(b) does not apply, an accompanying policy statement
provides, "the sentence for the instant offense shall be imposed to
run consecutively to the prior undischarged term of imprisonment to
the extent necessary to achieve a reasonable incremental punishment
for the instant offense." USSG § 5G1.3(c) (policy statement).
Significant safeguards built into the Sentencing Guidelines
therefore protect petitioner against having the length of his
sentence multiplied by duplicative consideration of the same
criminal conduct; he would be able to vindicate his interests
through appropriate appeals should the Guidelines be misapplied in
any future sentencing proceeding.
Even if the Sentencing Commission had not formalized sentencing
for multiple convictions in this way, district courts under the
Guidelines retain enough flexibility in appropriate cases to take
into account the fact that conduct underlying the offense at issue
has previously been taken into account in sentencing for another
offense. As the Commission has explained, "[u]nder 18 U. S. C. §
3553(b) the sentencing court may impose a sentence outside the
range established by the applicable guideline, if the court finds
'that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines
406
SCALIA, J., concurring in judgment
that should result in a sentence different from that
described.'" USSG § 5K2.0 (policy statement). This departure power
is also available to protect against petitioner's second major
practical concern: that a second sentence for the same relevant
conduct may deprive him of the effect of the downward departure
under § 5K1.1 of the Guidelines for substantial assistance to the
Government, which reduced his first sentence significantly. Should
petitioner be convicted of the cocaine charges, he will be free to
put his argument concerning the unusual facts of this case to the
sentencing judge as a basis for discretionary downward
departure.
IV
Because consideration of relevant conduct in determining a
defendant's sentence within the legislatively authorized punishment
range does not constitute punishment for that conduct, the instant
prosecution does not violate the Double Jeopardy Clause's
prohibition against the imposition of multiple punishments for the
same offense. Accordingly, the judgment of the Court of Appeals
is
Affirmed.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
This is one of those areas in which I believe our jurisprudence
is not only wrong but unworkable as well, and so persist in my
refusal to give that jurisprudence
stare decisis effect. See
Planned Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833,
982-984, 993-994 (1992) (SCALIA, J., concurring in judgment in part
and dissenting in part);
Walton v.
Arizona, 497 U. S. 639, 673 (1990)
(SCALIA, J., concurring in part and concurring in judgment).
It is not true that (as the Court claims) "the language of the
Double Jeopardy Clause protects against ... the actual imposition
of two punishments for the same offense."
Ante, at 396. What
the Clause says is that no person "shall ... be
407
subject for the same offence to be twice
put in jeopardy
of life or limb," U. S. Const., Arndt. 5 (emphasis added), which
means twice
prosecuted for the same offense. Today's
decision shows that departing from the text of the Clause, and from
the constant tradition regarding its meaning, as we did six years
ago in
United States v.
Halper, 490 U. S. 435 (1989),
requires us either to upset well-established penal practices, or
else to perceive lines that do not really exist. Having created a
right against multiple punishments
ex nihilo, we now allow
that right to be destroyed by the technique used on the petitioner
here: "We do not punish you twice for the
same offense,"
says the Government, "but we punish you
twice as much for
one offense solely because you also committed another
offense, for which other offense we will also punish you (only
once) later on." I see no real difference in that distinction, and
decline to acquiesce in the erroneous holding that drives us to
it.
In sum, I adhere to my view that "the Double Jeopardy Clause
prohibits successive prosecution, not successive punishment."
Department of Revenue of Mont. v.
Kurth Ranch,
511 U. S. 767,
804-805 (1994) (SCALIA, J., dissenting). Since petitioner was not
twice prosecuted for the same offense, I concur in the
judgment.
JUSTICE STEVENS, concurring in part and dissenting in part.
Petitioner pleaded guilty to attempting to possess with intent
to distribute more than 100 kilograms of marijuana. At petitioner's
sentencing hearing, the District Court heard evidence concerning
petitioner's participation in a conspiracy to import cocaine.
Pursuant to its understanding of the United States Sentencing
Guidelines, the District Court considered the cocaine offenses as
"relevant conduct" and increased petitioner's sentence accordingly.
Petitioner received exactly the same sentence that he would have
received had he been convicted of both the marijuana offenses and
the cocaine of-
408
Opinion of STEVENS, J.
fenses. The Government then sought to prosecute petitioner for
the cocaine offenses.
The question presented is whether the Double Jeopardy Clause
bars that subsequent prosecution. The Court today holds that it
does not. In my view, the Court's holding is incorrect and
unprecedented. More importantly, it weakens the fundamental
protections the Double Jeopardy Clause was intended to provide.
I
In my view, the double jeopardy violation is plain. Petitioner's
marijuana conviction, which involved 1,000 pounds of marijuana,
would have resulted in a Guidelines range of 78 to 97 months. When
petitioner's cocaine offenses were considered in the sentencing
calculus, the new Guidelines range was 292 to 365 months. This was
the range that the District Court used as the basis for its
sentencing calculations.1 Thus, the District Court's consideration
of the cocaine offenses increased petitioner's sentencing range by
over 200 months.
Under these facts, it is hard to see how the Double Jeopardy
Clause is not implicated. In my view, quite simply, petitioner was
put in jeopardy of punishment for the cocaine transactions when, as
mandated by the Guidelines, he was in fact punished for those
offenses. The Double Jeopardy Clause should thus preclude any
subsequent prosecution for those cocaine offenses.
II
Despite the intuitive appeal of this approach, the majority
concludes that these facts do not implicate the Double Jeopardy
Clause. To reach this conclusion, the majority relies
1 After making offsetting adjustments for an aggravating role in
the offense and for acceptance of responsibility, the District
Court, pursuant to United States Sentencing Commission, Guidelines
Manual § 5K1.1, departed downward by 148 months and sentenced
petitioner to 144 months' imprisonment.
409
on our prior decisions that have permitted sentencers to
consider at sentencing both prior convictions and other offenses
that are related to the offense of conviction. The majority's
reliance on these cases suggests that it has overlooked a
distinction that I find critical to the resolution of the double
jeopardy issue at hand.
"Traditionally, sentencing judges have considered a wide variety
of factors in addition to evidence bearing on guilt in determining
what sentence to impose on a convicted defendant."
Wisconsin
v.
Mitchell, 508 U. S. 476, 485
(1993). "One such important factor" to be considered in the
sentencing calculus is "a defendant's prior convictions."
Nichols v.
United States, 511 U. S. 738, 747
(1994). Indeed, the prominent role played by past conduct in most
guidelinesbased sentencing regimes and in statutes that punish more
harshly "habitual offenders" reveals the importance of this factor.
As the majority notes, we have repeatedly upheld the use of such
prior convictions against double jeopardy challenges. See
ante, at 400 (citing cases). However, an understanding of
the reason for our rejection of those challenges makes clear that
those cases do not support the majority's conclusion.
Traditional sentencing practices recognize that a just sentence
is determined in part by the character of the offense and in part
by the character of the offender. Within this framework, the
admission of evidence of an offender's past convictions reflects
the longstanding notion that one's prior record is strong evidence
of one's character. A recidivist should be punished more severely
than a first offender because he has failed to mend his ways after
a first conviction. As we noted in
Moore v.
Missouri,
159 U. S. 673,
677 (1895), "'the punishment for the second [offense] is increased,
because by his persistence in the perpetration of crime, [the
defendant] has evinced a depravity, which merits a greater
punishment, and needs to be restrained by severer penalties than if
it were his first offence.'" See also
McDonald v.
410
Opinion of STEVENS, J.
Massachusetts, 180 U. S. 311, 313 (1901)
(commission of a second crime after conviction for first "show[s]
that the man is an habitual criminal"). Thus, when a sentencing
judge reviews an offender's prior convictions at sentencing, the
judge is not punishing that offender a second time for his past
misconduct, but rather is evaluating the nature of his individual
responsibility for past acts and the likelihood that he will engage
in future misconduct. Recidivist statutes are consistent with the
Double Jeopardy Clause not because of the formalistic premise that
one can only be punished or placed in jeopardy for the "offense of
conviction," but rather because of the important functional
understanding that the purpose of the prior conviction is to
provide valuable evidence as to the offender's character. The
majority's reliance on recidivist statutes is thus unavailing.
When the offenses considered at sentencing are somehow linked to
the offense of conviction, the analysis is different. Offenses that
are linked to the offense of conviction may affect both the
character of the offense and the character of the offender. That
is, even if he is not a recidivist, a person who commits two
offenses should also be punished more severely than one who commits
only one, in part because the commission of multiple offenses
provides important evidence that the character of the offender
requires special punishment, and in part because the character of
the offense is aggravated by the commission of multiple offenses.
Insofar as a sentencer relies on an offense as evidence of
character, the Double Jeopardy Clause is not implicated. However,
insofar as the sentencer relies on the offense as aggravation of
the underlying offense, the Double Jeopardy Clause is necessarily
implicated. At that point, the defendant is being punished for
having committed the offense at issue, and not for what the
commission of that offense reveals about his character. In such
cases, the defendant has been "put in jeopardy" of punishment for
the offense because he has in fact been punished for that
offense.
411
Under many sentencing regimes, of course, it is difficult if not
impossible to determine whether a given offense has affected the
judge's assessment of the character of the offender, the character
of the offense, or both. However, under the federal Sentencing
Guidelines, the role played by each item in the sentencing calculus
is perfectly clear. The Guidelines provide for specific sentencing
adjustments for "criminal history" (i.
e., character of the
offender) and for "relevant conduct" (i.
e., character of
the offense). Under the Guidelines, therefore, an offense that is
included as "relevant conduct" does not relate to the character of
the offender (which is reflected instead by criminal history), but
rather measures only the character of the offense. Even if all
other mitigating and aggravating circumstances that shed light on
an offender's character have been taken into account, the judge
must sentence the offender for conduct that affects the seriousness
of the offense.
The effect of this regime with respect to drug crimes provides a
particularly striking illustration of why this mandatory
consideration of relevant conduct implicates the Double Jeopardy
Clause under anything but a formalistic reading of the Clause.
Under the Guidelines, the severity of a drug offense is measured by
the total quantity of drugs under all offenses that constitute
"relevant conduct," regardless of whether those offenses were
charged and proved at the guilt phase of the trial or instead
proved at the sentencing hearing. For example, as I have noted
above, petitioner's Guidelines range was determined by adding the
quantity of marijuana to the quantity of cocaine (using the
conversion formula set forth in the Guidelines). Petitioner has
thus already been sentenced for an actual offense that includes the
cocaine transactions that are the subject of the second indictment.
Those transactions played precisely the same role in fixing his
punishment as they would have if they had been the subject of a
formal charge and conviction. The actual imposition of that
punishment must surely demonstrate that
412
Opinion of STEVENS, J.
petitioner was just as much in jeopardy for the offense as if he
had been previously charged with it.
In sum, traditional sentencing practice does not offend the
Double Jeopardy Clause because (1) past convictions are used only
as evidence of the character of the offender, and not as evidence
of the character of the offense, and (2) in traditional sentencing
regimes, it is impossible to determine for what purpose the
sentencer has relied on the relevant offenses. In my view, the
Court's failure to recognize the critical distinction between the
character of the offender and the character of the offense, as well
as the Court's failure to recognize the change in sentencing
practices caused by the Guidelines, cause it to overlook an
important and obvious violation of the Double Jeopardy Clause.
III
Once this error in the majority's analysis is recognized, it
becomes apparent that none of the cases on which the majority
relies compels today's novel holding. In
Williams v.
New York,
337
U. S. 241 (1949), the Court held that the Due Process Clause
did not prevent a sentencing judge from considering information
contained in a presentence report. The Court's conclusion in
Williams is consistent with my approach. The
Williams
Court repeatedly emphasized that the information in the presentence
report provided the court with relevant information about the
character of the defendant. For example, the Court noted that "the
New York statutes emphasize a prevalent modern philosophy of
penology that the punishment should fit the offender and not merely
the crime." The Court continued: "The belief no longer prevails
that every offense in a like legal category calls for an identical
punishment without regard to the past life and habits of a
particular offender." Finally, the Court observed that "[t]oday's
philosophy of individualizing sentences makes sharp distinctions
for example between first and repeated
413
offenders."
Id., at 247-248. Thus, the entire rationale
of the
Williams opinion focused on the importance of
evidence that reveals the character of the offender. Not a word in
Justice Black's opinion even suggests that if evidence adduced at
sentencing were used to support a sentence for an offense more
serious than the offense of conviction, the defendant would not
have been placed in jeopardy for that more serious offense.2
The Court also relies on
McMillan v.
Pennsylvania,
477 U. S. 79
(1986), suggesting that
McMillan "necessarily impl[ies]"
that consideration of "offender-specific information at sentencing"
does not "result in 'punishment for such conduct.'''
Ante,
at 400-401. I believed at the time and continue to believe that
McMillan was wrongly decided. However, even accepting the
Court's conclusion in
McMillan, that case does not support
the majority's position. In
United States v.
Halper,
490 U. S. 435,
448 (1989), and
Department of Revenue of Mont. v.
Kurth
Ranch, 511 U. S.
767, 779-780 (1994), we emphatically rejected the proposition
that punishment under the Double Jeopardy Clause only occurs when a
court imposes a sentence for an offense that is proven beyond a
reasonable doubt at a criminal trial.
The case on which the Court places its principal reliance,
Williams v.
Oklahoma, 358 U. S. 576 (1959), is
not controlling precedent.
Williams was decided over 10
years before the Court held in
Benton v.
Maryland,
395 U. S. 784
(1969), that the Double Jeopardy Clause "should apply to the States
through the Fourteenth Amendment."
Id., at 794. Thus,
Williams did not even apply the Double Jeopardy Clause
2The majority's reliance on
Nichols v.
United
States, 511 U. S.
738 (1994), is similarly unavailing. In
Nichols, the
Court permitted the inclusion of an uncounseled misdemeanor
conviction in the calculation of a defendant's criminal history.
However, as I have noted above, the inclusion of an offense in
criminal history for sentencing purposes treats that offense as
relevant to the character of the offender rather than to the
character of the offense.
414
Opinion of STEVENS, J.
and instead applied only a "watered-down" version of due
process, see
Benton, 395 U. S., at 796. Moreover, in
Williams, the State's discretionary sentencing scheme was
entirely dissimilar to the federal Sentencing Guidelines, which
require that "relevant conduct" be punished as if it had been
proved beyond a reasonable doubt. The Court is therefore free to
accept or reject the majority's reasoning in
Williams.
The precise issue resolved in
Williams is also somewhat
different from that presented in today's case. In
Williams,
the petitioner committed two offenses, kidnaping and murder,
arising out of the same incident. Though petitioner was convicted
of capital murder, the judge imposed a sentence of life
imprisonment. There is no reason to believe that the judge
considered the kidnaping offense as relevant conduct in sentencing
petitioner for the murder. Williams was then prosecuted for
kidnaping. He did not raise a double jeopardy objection to the
kidnaping prosecution-an objection that would have been comparable
to petitioner's claim in this case regarding his cocaine
prosecution. After Williams pleaded guilty to the kidnaping, the
court considered the circumstances of the crime, including the
murder, and imposed a death sentence. This Court affirmed. I agree
with Justice Douglas' dissent that "petitioner was in substance
tried for murder twice in violation of the guarantee against double
jeopardy." 358 U. S., at 587. In any event, I surely would not
apply the
Williams Court's dubious reasoning to a federal
sentence imposed under the Guidelines.3
3 I recognize that the Court in
Williams stated that "the
court's consideration of the murder as a circumstance involved in
the kidnapping crime cannot be said to have resulted in punishing
petitioner a second time for the same offense." 358 U. S., at 586.
As I note in the text, I disagree with this statement. But even if
it were correct, it does not dispose of petitioner's claim that he
is being
prosecuted for the cocaine offense a second time.
The statement in
Williams is directed only at the use of a
prior conviction in a
subsequent sentencing proceeding; it
does not address whether the second
prosecution is barred by
the fact that the defendant has already been punished for the
offense to be prosecuted.
415
Given the absence of precedent requiring the majority's unjust
result, the case should be decided by giving effect to the text and
purpose of the Double Jeopardy Clause. Petitioner received the
sentence authorized by law for the offense of attempting to import
cocaine. Petitioner is now being placed in jeopardy of a second
punishment for the same offense. Requiring him to stand trial for
that offense is a manifest violation of the Double Jeopardy
Clause.
IV
Though the majority's holding in Parts I and II removes the
Double Jeopardy Clause as a constitutional bar to petitioner's
second punishment, the majority does recognize that the provisions
of the Sentencing Guidelines reduce the likelihood of a second
punishment as a practical matter. The Guidelines will generally
ensure that the total sentence received in the two proceedings is
the same sentence that would have been received had both offenses
been brought in the same proceeding. Moreover, as the majority
notes, the departure power is available to protect against
unwarranted double punishment, see
ante, at 405-406, as well
as to prevent any possibility that "a second sentence for the same
relevant conduct may deprive [a defendant] of the effect of the
downward departure under § 5K1.1 of the Guidelines for substantial
assistance to the Government,"
ante, at 406.4
The Court's statutory holding thus mitigates some of the
otherwise unfortunate results of its constitutional approach. More
importantly, the Court's statutory analysis is obviously correct.
Accordingly, I join Part III of the Court's opinion.
4 Of course, the safeguards in the Guidelines do not eliminate
the double jeopardy violation. The Double Jeopardy Clause protects
against the burdens incident to a second trial, and not just
against the imposition of a second punishment. Moreover, a "second
conviction, even if it results in no greater sentence, is an
impermissible punishment."
Ball v.
United States,
470 U. S. 856,
865 (1985).
416
Opinion of STEVENS, J.
V
In my view, the Double Jeopardy Clause precludes petitioner's
subsequent prosecution for the cocaine offenses because petitioner
was placed in jeopardy when he was punished for those offenses
following his conviction for the marijuana offenses. I therefore
join only Part III of the Court's opinion, and I respectfully
dissent from the Court's judgment.
Comments
Be the first to comment
Leave a Comment