1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s DEA N v . U N ITED STATE S CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVE NTH CIRCUI T No. 08–5 27 4. Ar g u ed M a rc h4, 2009—Dec i ded Apr il 29, 2009 An individua lconvi c t e d for us ing or ca rrying afirea r mduring a n d in

relation to any violent or dr ug tr a ffickin g crim e , or pos s e s s i ng afire

ar m infu r t h e r a n c e of su ch a c r i me, r e ceiv es a 5-y e a rman d ator y minimum sent enc e , in additi on to the punis h ment for th e underlying c r i me. 18 U. S. C. §924(c )(1)(A)(i). Th e man d ator ymin i mu m in

c r e ases to 7 y e ar s “if th e fir e ar m is br an dish ed” an d to 10 y e ar s “ i f the firearm is discharg ed.” §§924(c)(1)(A)(i i), (iii).

PetitionerDea nwas c o nv ic ted of c o nspir i ngto c o mmit a b a nk r o b

ber yan d disc h a r gin ga fir e ar m du r i n ganar med r o bb er y . Bec a u s e t h e firea r mwa s “ d is cha r ged” during t h e rob b e ry, De a nwa s s e n tenc ed to a 10 -y earmandato r yminimum pr ison ter mon the fir e ar m count. §924(c)(1)(A)(iii). On appea l , he contended that t h e discharg e was ac c i den t al, an d th at §924(c )(1)(A)(ii i) r e qu ir es pr oof th at th e de

fendant intended to di sc har g e the fi rearm. The Eleventh Circuit af

firmed, holding that no proof of intent is re quired. Held: Sec t ion924(c )(1)(A)(i ii) r e qu ir es n osepar a te pr oof of in ten t
. Th e

10-y e armand ator yminimum appl ies if ag un is disc har g ed in the course of a vi olent or drug traffi cking cri me, whether on purpose or byac c i den t
. Pp. 2–9.

(a) Subsection(iii) provides a minimum 10-year sente n ce “if the firea r mis dis c ha rged.” Itdo es not require that the discharge be done knowingly or i n tentionally, or otherw ise co ntain words of limita t ion. This Court “ordinarily resi st[s] re ading words or ele m ents into a sta t u t e th at d on o t appearonits fac e .” Batesv. Un itedSt at es , 522 U. S. 23, 29. Con gr e ss’ s u s e of t h e pa ssive voice fu rt her indica t e s that sub s ectio n(iii) does no t require proof of intent. C f

. Watsonv. United Sta t es , 552 U. S. ___ , ___. The st atute’s s t ructure also sug

g e sts n osu c h limit ation

. Con gr e ss ex pr esslyin c l u d ed anin ten tr e -2 DEAN v. UNITED STATES Sy llabu s qu ir emen t forth e 7-y e arma n d ator ymin i mu m forbr an dish in ga fir e ar m bysepar a telydefining“b r a ndish” to r e quir e that the fir e ar m be displ a y e d “inor derto in timidate ” an oth e rper s on . §924(c )(4). Con

gr ess did not, howev e r , separ a telydefine “disc h ar g e ” to inc l ude an in

tent r e quir ement. It is g e ner a llypr esumed that Congr e ss ac ts inten

tionally when including particularlanguage in one section of a s t atute b u t not in a n other. Russe llov. United Stat es , 4 64 U. S. 16 , 23. Contrary to Dean’s contention, the phrase “during a n d in relation to” inth e ope n in gpar a gr aphof §924(c )(1) ( A) does n o t modify“is d i s c h ar g e d,” wh i c happear s ina separ a te su bsec tionan d ina differ e n t voice than theprincipal paragraph. “[I]n r e lation to” i s most na tu

r a llyr e ad to modifyon lyth e n e arbyv e rb s “u ses ” an d “ c ar r i es.” Th is readingwill not lead to the absurd results posited byDean. Pp. 3–6.

(b) Dean argues that sub s ection (iii) must be limi t ed to i n tentional discharges in order to give effectto the statute’s progression of ha rs her pena lt ies for increas ingly cu lpabl e conduct. While it is un

us ua l to impos ecrimina l punis h ment for th e co ns eq uenc es of purely a ccidenta lconduct, it is not unus ua l to punis hindividua l s for the un

intended consequences of their unlawf u l

ac ts. The fac tthat the di s c h ar g emaybe ac c i den t al do es n o t meant h at th e defen d an t is b l ame less. The se ntencing e n hancemen ta ccount s for t h e ris kof ha rm res u lt ing fro mt h e m a nner in w h ich t h e crim eis ca rried out , fo r which the defe ndant is respo n sible. See Harrisv. United States , 536 U. S. 545, 55 3

. Anin div i dual br in gi n ga loaded weaponto c o mmit a crime runs the risk that the gun will discharge accidentally. A gun

shot—whether accidental or intended—increa s es t h e risk t h a tot hers will be injured , that people will panic, or that violence will be use din r e spon se. It also tr au mat i ze s by stan der s , as it did h e r e . Pp. 6–9.

(c ) Bec a use the sta t utor ytex tand str u c t ur e demonstr at e that the dis c ha rge pro v is ion does not conta i n a nintent req u ire m ent, the rule of lenity is not implicated in this case. 517 F. 3d 12 24 , affir m ed.

R OBERTS , C. J., delivered the opinion of the Court, in which S CALIA , K ENNEDY , S OU TER , T HOMAS , G IN SB U R G , and ALITO , JJ., jo ined. S TEVENS , J., an d B REYER , J., filed dissenting opinions._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES
No. 08–5 27 4 CHRI ST OP HER MI CHAEL DEA N , PETITIONER v. UNITE D STAT ES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE ELEV ENTH CIRC U I T [Apr il 29, 20 0 9 ] C HIEF J U S TICE R OBER TSdelivered the opinion of the Court. Accidents h a ppen. Sometimes they happen to individu

als committing crimes with loaded guns. The question here is whether extra punishment Congress imposed f o r the discharge of a gun during certain crimes applies when the gun goes off accidentally. I Title 18 U. S. C. §924(c)(1)(A) criminalizes using o r carr ying a firearm during and in relation to any violent or drug traffi c k ing crime, or possessing a firearm in further

ance of such a crime. An indi vidual convicted of tha t offense receives a 5-yea rm andatory minimumsentence, in addition to the punishment for the underlying crim e . §924(c)(1)(A)(i). The mandatory m i nimum increases to 7 years “if th e firearm is brandished” and to 10 years “if th e firearm is discharged.” §§924(c)(1)(A)(ii), (iii). In this cas e , a masked man ent e red a ban k, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and s t arted removing money from the te ller stations. He grabbed bills with his left2 DEAN v. UNITED STATES Opinion of theCourt hand, holding the gu n in his right. At one point, he reached over a teller to remo ve money from her drawer. As he was collecting the money, the gun discharged, leav

ing a bullet hole in th e partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed sur p rised that the gun had gone off. No one was h u rt. App. 1 6–19, 24, 27 , 47–48, 79. Police arrested Christ opher Michael Dean and Ricard o Curtis Lopez for the crime. Bo th defendants were charged with conspiracyto co mmit a rob b ery affecti ng intersta te commerce, in violation of 18 U. S. C. §1951(a), and aidin g and abetting each other in using, carrying, pos s essing, an d discharging a firearm during an armed robbery, in viola

tion of §92 4 (c)(1)(A)(iii) and §2. App. 11–12. At trial, Dean admitted that he had committed the rob b ery, id. , at 76–81, and a jury found him guilty on both the robbery and firearm counts. Th e District C o urt sentenced Dean to a mandatory minimum term of 10 years in prison on the firearm co unt, becau s e the firearm “disch arged” duri ng the robbery. §924(c)(1)(A)(iii); App. 136. Dean appealed, contending that the discharge wa s accidental, and that the sent encing enh ancement in §924(c)(1)(A)(iii) requires proof that the defendant in

tended to discharge the firearm. The Court of Appeals affirmed, holding that separate proof of intent was not required. 517 F. 3d 1224, 1229 (CA11 2008). That deci

sion created a conflict among the Circuits over whether the accidental discharge of a firearm during the specified crimes gives rise to the 10-year mandatory mi nimum. See United S t a t es v . Brown , 449 F. 3d 154 (CADC 2006) (hold

ing that it does not). We grant edcertiorari t o resolve that conflict. 555 U. S. ____ (2008). II Section 924(c)(1)(A) provides: “[A]ny person who, during and in relation to any3 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt crime of violence or dr ug tra fficking crime . . . uses or carries a fi rearm, or who, in furtherance of any such crime, possesses a f i rearm, shall, in addition to the punishment provided for such crime of viole n ce or dr ugtr affick ingcr ime— “(i) be sentenced to a term of imprisonment of not less than 5 years; “(ii) if the f i rearm is b r andished, be sentenced to a term of imprisonment of not less th an 7 years; and “(iii) if the firearm is discharged, be sentenc e d to a term of imprisonment of not less th an 10 years.” The principal paragraph defines a complete of fense and the subsections “explain how defendants are to ‘be sen

tenced.’ ” Harrisv. Unit e dSta t es , 536 U. S. 545, 552 (2002). Subsection (i) “sets a catchall minim u m” sentence of not less than five years. Id ., a t552–553. Subsections (ii) and (iii) increase th e minimu m penalty if the firearm “is brandished” or “is discharged. ” See id ., at 553. Th e parties disagree over whether §924(c)(1)(A)(iii) contains a requiremen tthat the defendant intend to discharge the firearm. We hold that it does not. A “We start, as always, with the language of the statute.” William sv. Taylor , 529 U. S. 420, 431 (2000). The text of subsection (iii) provides t hat a defendant shall be sen

tenced to a minimum of 10 years “if the firearm is dis

charged.” I tdoes not require that the disch a rge be do ne k n owingly or intention a lly, or otherwise contain words of limitation. As we e x pl ained in Ba tesv. Unit ed Stat es , 52 2 U. S. 23 (1997), in declining to infer an “ ‘intent to de

fraud’ ” requirement into a statute, “we ordinarily resist reading wo rds or elements into a statute th at do not ap

pear on its face.” Id. , at 29. Congress’s use of the passive voice further ind i cates tha t subsection (iii) does not require proof of inten t
. The pas

-4 DEAN v. UNITED STATES Opinion of theCourt sive voice focuses on an event that occurs wit h out respect to a specific actor, an d therefore without re spect to an y actor’s inte nt or culpability. Cf. Wa tsonv. United Sta t es , 552 U. S. ___, ___ (20 07) (slip op ., at 7) (us e of pass ive voice in st atutory ph rase “to b e used” in18 U. S. C. §924(d)(1) reflects “agnosticism .

. . about who does the using”). It is whether something happened—not how or why it happened—that matters. The structu re of the st atute also suggests th at subsec

tion (iii) is not limited to the in tentional di scharge of a firearm. Subsection (ii) provi d es a 7-year mandatory minimum sentence if the firearm “is brandished.” Con

gress expressly included an in tent requirement for that provision, by defining “brandish” to mean “to display all or part of the firearm, or otherwise mak e the presence of th e firearm kn own to another person, in order to intimidate that person .” §924(c)(4 ) (emphasis added). The defendant must have intended to brandish the firearm, because the brandishing must have beendon efor a specific purpose. Congress did not, however, se parately define “discharge ” to include an intent requiremen t
. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congre ss acts intentionally a n d purposely in the disparate inclusion or exclusion.” Russe llov. United Sta t es , 464 U. S. 16, 23 (1983) (internal quotation mark s omitted). Dean argue s that the statute is not silent on the ques

tion presen ted. Congress, he cont ends, inclu d ed an intent element inthe openi n g paragraph of §924 (c)(1)(A), and that element extends to the sentencing enhancements. Section 924(c)(1)(A) cri minalizes u s ing or carrying afire

arm “durin g and in relation to” any violent or drug t r af

ficking crime. In Sm i t h v . Un ited S t a t es , 508 U. S. 22 3 (1993), we stated that the phrase “in relation to” means “that the firearm must have some purpose or effect with5 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt respect to t h e drug tr afficking c r i me; its presence or in

volvement cannot be the result of a ccident or coincidence.” Id. , at 238. Dean argues that the adverbial phrase thus necessarily embodies a n intent requirement, and that th e phrase modifies all the verbs in th e statute—not only us e, carry, and possess, butalso brandish and discharge. Such a reading requires that a perp etra tor knowin gly dischar ge the firearm for the enhancement to apply. If the discharge is accident al, Dean ar gues, it is not “in rel a tion to” t h e underlying crime. The most natural reading of the statute, however, is that “in relation to” modifies only the nearby verbs “uses” and “carries.” The next verb—“po ssesses”—is modified by its own adverbial claus e, “in furth erance of.” The last two verbs—“is brandished” and “is discharged”—appear i n separate subsections a n d are in a different voice than the verbs in the principal paragraph

. There is no basis for reading “in relation to” to extend all the way down to modify “is discharged. ” The bet t e r reading of the statu t e is that the adverbial p h rases in the opening paragra p h

— “in relation to” and “in furtherance of”—modify t h eir respective nearby verbs, and tha tneither phrase extends to the sentencing factor s . But, Dean argues, such a reading will lead to absurd results. The discharge provisionon its face contains no temporal or causal lim itations. In the absence of an intent requiremen t , the enha ncement would apply “regardless of when the actions occur, or by whom or forwhat reason they are ta ken.” Brief for Petitioner 11–12. It would, for example, apply if the gun used during th e crime were discharged “weeks (or years) before or afterthe crime. ” Reply Brief for Petitioner 11. We do n o t agree that implying an intent requ irement is necessary t o address s u ch concer ns. As the Governme nt recognizes, sentencing factors such as the on e here “ofte n involve . . . special features of the manner in which a basic6 DEAN v. UNITED STATES Opinion of theCourt crime was carried out. ” B r ief for United S t at es 29 (quot

ingHar r is, 536 U. S., at 553; internal quotation marks omitted). The basic crime here is using or carr ying a firearm during and in relation to a violent or drug traffick

ing crime, or possessing a firearm in furtherance of any such crime. Fanciful hypothetica l s testing whether th e discharge was a “special featur[e]” of how the “basic crim e was carriedout,” Harri s , 536 U. S., at 553 (int ernal quota

tion marks omitted), are best addressed in those terms, not by contorting and stretching the statutory language to imply an intent requirement. B Dean furth er argues that even if the statute is viewed as silent on the intent qu estion, that silence compels a ruling in his favor

. There is, he notes, a presumption that crim i

nal prohibitions inclu d e a requirement that the Govern

ment prove the defendant intended the conduct made criminal. In light of this presu m ption, we have “on a number of occasions read a state

- of-mind component into an offense even when the statuto r y definition did not in terms so provide.” Uni t ed S t a t esv. United S t ates Gyp s u m Co. , 438 U. S. 422, 43 7 (1978). “[S]ome indication of con

gressional i n tent, express orimpl ied, is requ ired to dis

pense with mens reaas an e l ementof acrime. ” Staplesv. United Sta t es , 511 U. S. 600, 606 ( 1994).

Dean argues that the presumption is especially stron g in this case, given the structu re a n d pur p ose of the sta t

ute. In his view, the three subsections are intended to provide ha rsher penalties for increasingly culpable con

duct: a 5-year minimum for us ing, carrying, or possessi ng a firearm; a 7-year m i nimum for brandishing a firearm ; and a 10-year minimum for discharging a firearm. Incor

porating anintent requirement into the discharge p r ovi

sion is necessary to giv e effe ct to t hat pro gression, because an accidental discharge is less culpable than intentional7 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt brandishment. See Brown , 449 F. 3d, at 156. It is unusual to impose criminal punishment for the consequenc es of purely accident a lconduct. But it is not unusual to punish in dividuals for the unint ended cons e quences of their unlawful acts. See 2 W. LaFave, Su b

stantive Criminal Law §14.4, pp. 436–437 (2 d ed. 2003)

. The felony-murder rul e is a familiar example: If a defen

dant commits an unin t ended homicide while committin g another felony, the defendant can be convicted of murder. See 18 U. S. C. §1111. The Sentencing Guidelines ref l ect the same principle. See United States Sentencing Com

mission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008 ) (USSG) (increasing offense le vel for aggravated assault according t o the seriousness of the injury); §2D2.3 (in

creasing offense level f o r operating or directing the opera

tion of a common carrier under the influence of alcohol o r drugs if death or serious bodily injury results). Black s tone expressed the idea in th e foll owing terms: “[I]f any accidental mischief happens to follow from the performance of a lawful act, th e party sta n ds ex

cused from all guilt: but if a man be doing any thing unlawful , a n d a consequence ensu es which he did not foresee or i n tend, as the death of a man or the lik e, his want of foresight shall be no excu se; for, bein g guilty of one offen c e, in doing antecedently what is in itself unlawful, he is criminally guilty of whateve rconse quence may follow the first misbehaviour.” 4 W. Black s tone, Commentaries on the Laws of England 26–27 (1769). Here the defendant is already guilty of unla w ful conduct twice over: a violent or drug traffick ing offense and th e use, carrying, or possession of a firearm in the course of that offense. That unl awful conduct was not an accident. See Smith , 508 U. S., at 238. The fact that the actual discha rge of a gun covered8 DEAN v. UNITED STATES Opinion of theCourt under §924 (c)(1)(A)(iii) may be ac cidental does not m e a n that the defendant is blameless. The sen t encing en

hancement in subsection (iii) accou n ts for the risk of harm resulting from the manner in wh ich the cri me is carried out, for which the defendant is responsibl e. See Ha rri s , supra , a t5 53. An individual who brings a loaded weapon to commit a crime runs the risk that the gun will dis

charge acci dentally. A gunshot in such circumstances— whether accidental or intend ed—increases the risk t hat others will be injured, that p eople will panic, or that vio

lence (with its own danger to those nearby) will be used in response. Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care du ring the un derlying vio l ent or dru g traffic k ing crime, leav e the gun at home, or—best yet

— avoid committing the felony in the first place. J USTICE S T EVEN Scontends that the statute should be read to req u ire a showing of intent because harm resulting from a discharge may be punishable under other provi

sions, such as the Sentencing Guidelines (but only if “bo d

ily injury” results). Pos t , at 6 (di ssenting opinion) (citing USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(i ii) elected to impose a m andator y t e rm, without regard t o more generally applicable sentenc i ng provisions. Punish

ment available under such provisions there f ore does n o t suggest that the statute at issu e h e re is limit ed to inten

tional discharges. And althou gh the poin t is not relevant under the correc t reading of the statute, it is wrong to assert that the gun

shot here “caused no harm.” Post , at 1. By pure luck, no one was killed or wounded. But the gunshot plainly added to the trauma experienced by those held during the armed robbery. See, e.g ., App. 22 (the gunshot “shook us all”); ibid . (“Melissa in the lobby popped up and said, ‘oh, my God, has he shot Nora?’ ”).9 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt C Dean finally argues that any do ubts about the prope r interpretati on of the statute should be resolved in his favor underthe rule of lenity. See Brief for Petitioner 6. “The simple existence of s o me st atutory am biguity, how

ever, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” Mus

carellov. U n ited States , 524 U. S. 125, 138 (1 998); see also Smith , su pr a , at 239 (“The mere possibility of articulatin g a narrower constructio n , however, does not by itself make the rule of lenity applicable”). “T o invoke the rule, we must conclude that there is a grievous ambiguity or uncer

tainty in t h e statute.” Musca re llo , supra , at 138–139 (internal quotation marks omitt e d). In t h is case, the statutory text and structure co nvince us that the di s charge provision does not co ntain an intent requiremen t
. Dean’s contrary argum e nts are not enough to render the statute grie vously ambiguous. * * * Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory m i nimum applies if a gu n is discharged in the course of a violent or drug traffick ing crime, whether on purpose or by accident. The judg

ment of th e Court of Appeals for the Eleventh Circuitis affirmed. It is so orde red._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

## SUPREME CO URT O FTHE UNI TED STATES
No. 08–5 27 4 CHRI ST OP HER MI CHAEL DEA N , PETITIONER v. UNITE D STAT ES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE ELEV ENTH CIRC U I T [Apr il 29, 20 0 9 ] J USTICE S T EVEN S , dissenting. Accid e nt s hap pen, bu t they se ldo m gi ve rise to crimi

na l l i a b i li t y . Ind e ed , if t h ey c a u s e no har m they s e ld o m gi ve rise to any liability. The Court to day ne ve rtheles s hold s t hat pet i t i on er is s u bj ect t o a m and at ory add i t i on al sent ence— a sp ec ies of crim i na l liab i lity—f oran acc i d e n t thatca u s ed n o har m. F o r t w o r e as on s, 1 8 U

. S

. C. §924(c)(1)(A)(iii) shou ld not be s oconstrued. First, the structu re of §924(c)(1)(A) suggests that Congress intended to provide escalating senten ces for increasingly culpab le conduct an d that the discharge provision ther efore applie s only to intentional discharges. Se cond, even if the statute did not affirmatively support thatinference, the common

law presumption that provisions imposing criminal pena l

ties require proof of mens rea would lead to the sa me conclusion. Cf. UnitedStatesv. X-Citem e nt Video, Inc. , 513 U. S. 6 4 , 70 (1994). Accordingly, I would hold that th e Court of Ap peals erred in conc luding that peti tioner could be sentenced under §9 24(c)(1)(A)(i ii) absent evidence tha t he intendedto discharge his gun. I It is clear from the stru cture and h i story of §924(c)(1)(A) that Congress intended §924(c)(1)(A)(iii) to apply only to intentional discharges. The statute’s structure supports2 DEAN v. UNITED STATES S TEVENS , J., di s s e nting the inference thatCo ngress intended to im pose increas

ingly harshpunishment for increasingly culpable conduct. The lesserenhancem ents for carrying or brandishing provided by clauses (i) and (ii) clearly require proof of intent. Clause (i) imp o ses a 5-year mandatory minimum sentence for using or carrying a firearm “du r ing and in relation to”a crime of violence or drug traffic k ing offense, or possessing a firearm “in furthera n ce” of suchan offense. As we hav e said before, the provision’s relational terms convey that it does not reach inadvertent co nduct. See Smithv. Unit e dSt at es , 508 U. S. 223, 238 (1993) (“Th e phrase ‘in relation to’ .

. . at aminimum, clarifies that the firearm must have some purpose or effect with respect to the drug traffick ing crime; its presence or involvemen t cannot be the result of accident or coincidence”). Simi

larly, clause (ii) mand ates an en hanced penalty for bra n dishing a firearm only upon proof that a defendant had the specific intent to intimidate. See §924(c)(4). In th at context, the most natural reading of clause (iii), which imposes th e greatest mandatory penalty, is that it pro

vides additional punis h ment for the more culpable act of intentional discharge. 1 The legisla t ive history also indicates that Congres s intended to impose anenhanced penalty only for inten

tional discharge. In Baileyv. United St at es , 51 6 U. S. 137, 148 (1995), the Court held that “use” of a firearm for purposes of §924(c)(1) required some type of “active em

ployment,” such as “brandishing, displaying, barteri ng, striking wi th, and, mos tobviousl y, firing or attempting to fire.” Co ngress responded to Bail eyb yamending

——————

1 Contr a r yto the Cour t’ s sug g e stion, ante , at 4, Congress’ provision of a specific inte nt element fo r bran dishing and not for discharge only su ppor t s th e c o n c lu sionthat Con gres s did not intend enha ncement s under thedis c ha rgeprovis ion to req u ireproof of specific intent; it su ppor t s n oi n fer e nc e th at Con gr e ss al s oin ten d ed to elimin a t e an y general intentrequirement and thereb y m a ke offenders strictly liable.3 Cite as: 55 6 U

. S. ____ (2009) S TEVENS , J., di s s e nting §924(c)(1), making it an offens e to “posses[s]” a firearm “in furtherance of” one of the predicate offenses and adding sentencing enhancements for brandishing and discharge. See Pub. L. 105–386, §1(2)(1), 112 Stat. 3469; see als o 14 4 Cong. Rec. 26608 (1998) (remarks of Sen. DeWine) (refer

ring to the amendments as the “ B ailey Fix Act”). Given the close relationship between the Bailey decision and Congress’ enactment of the brandishing and discharge provisions, those terms are best read as codifying some of the more culpable among the “active employments” of a firearm that the Court identified in Bailey

. II Even if the r e were no evidence that Congres s intended §924(c)(1)(A)(iii) to app l y only to intentionaldischarges , the presumption that criminal provisions include an intent requiremen twould lead me to the same conclusion. Con

sistent withthe common-law tra dit i on, the requirement of mens rea h a s long been the rule of our criminal jurispr u dence. See United S t atesv. Uni t ed States Gypsum Co

. , 438 U. S. 422 (1978). The concept of crime as a “concur

rence of an evil-meanin gmind with an evil-doing hand .

. . tookdeep and early ro ot in American soil.” Morisse ttev. United Sta t es , 342 U. S. 246, 251– 252 (1952). Legislating against tha tbackdrop, States often omitted intent ele

ments when codifyingthe criminal law, and “courts as

sumed that the om issi on did nots i gnify disapproval of the principle but merely recognized that intent was so inher

ent in the idea of the offense that it required no statutory affirmation.” Id. , at 25 2. Similarly, absent a clear state

ment by Congress that it intended to create a strict

liability offense, a mens rea requirement has generally been presumed in federal statutes. See id. , at 273; Staples v. United S t ates , 511 U. S. 600, 60 5–606 (199 4). With on l y a few nar r o wly delineated except ions for such c r imes as statutory rape and pu blic welfare offenses, th e presump -4 DEAN v. UNITED STATES S TEVENS , J., di s s e nting tion remains the rule today. See Morisse tte , 342 U. S., at 251–254, and n. 8; see also Staples , 511 U. S. , at 606–607 (discussing United Sta t esv. Balint , 258 U. S. 250 (1922)). Although mandatory minimumsentencin gprovisions are of too recent genesis to have any common-law pedi

gree, see Harrisv. Uni t ed S t a t es , 536 U. S. 5 45, 579, 581, n. 5 (2002) (T HOMAS , J., dissenting), there is no sensible reason for treating them differently from offense el emen ts for purposes of thepre s umption of mens rea . Sentencing provisions of this type have substantially the same effect on a defend ant’s liberty as aggra v ated offens e provision s . Although a sentencing judge has discretion to issue sen

tences under §924(c)(1)(A) withi nthe subs tantial range bounded on one end by the 5-, 7-, or 10-year mandatory minimum sentence and on the other by the statuto r y maximum sentence, judges in pra ctice ra rely exercise tha t discretion. As J USTICE T HOMAS noted in Harri s , “the sentence im posed when a defendan t is found only to have ‘carried ’ a fi rearm ‘in relationto’ a drug trafficking offens e appears to be, almostuniformly, if not invariably, five years,” and “those found to have brandished a firearm typically, if not always, are sent enced only to 7 years in prison while those found to have discharged a firearm a r e sentenced only to 10 years.” Id. , at 578 (dissenting opin

ion); see also United States Sentencing Commission, Guidelines Manual §2K2.4, comment., n. 2 (Nov. 2008) (USSG) (stating that the minimum sentence required by §924(c)(1)(A) is the guideline sent ence and any increase is an upward departure). If anything, imposition of a man

datory minimum sentence under §924(c)(1)(A) will like l y have a gre a ter effect on a defen d ant’s liberty than will conviction for another offens e because, unlike sentences for most federal offens es, sentences imposedpursuant to that section must be servedconsecutively to any other sentence. See §924(c)(1 )(D)(ii). As the foregoing shows, mandatory minimum sentenc

-Cite as: 556 U. S. ____ (2009) 5 S TEVENS , J., dissenting ing provisions are in effect no different from aggravated offense provisions. The commo n-law tradition of requiring proof of mens reato establish criminal culpability should thus apply equally to such sentencing factors. Absent aclear indication that Congress intended to create a strictliability enhancement, courts should presume that a provision that mandates enhanced criminal penalties requires proof of intent. This co nclusion is bolstered by the fact that we have long applied the rule of lenity—which is similar to the mens rea rule in both origin and purpose—to provisions that increase criminal penalties as well as those that criminalize conduct. See United Statesv. R. L. C. , 503 U. S. 291, 305 (1992) (plurality opinion); Bifulcov. United States , 447 U. S. 381, 387 (1980); Ladner v. United States , 358 U. S. 169, 178 (1958). 2Accordingly, I would apply the presumption in this case and avoid the strange result of imposing a substantially harsher penalty for an act caused not by an “evil-meaning mind” but by a clumsy hand. The majority urges the result in this case is not unusual because legislatures commonly “punish individuals for the unintended consequences of their unlawful acts,” ante , at 7, but the collection of examples that follows this assertion

——————

2 To be sure, there are also inquiries for which the Court has said that sentencing provisions are different. In Harris v. United States , 536 U. S. 545, 557 (2002) (plurality opinion), and McMillanv. Pennsylvania , 477 U. S. 79, 87–88 (1986), the Court distinguished for purposes of constitutional analysis mandatory minimum sentencing schemes from offense elements and provis ions that increase the statutory maximum sentence. I continue to agree with J USTICE T HOMAS ’ compelling dissent in Harris , in which he rejected the distinction on the ground that mandatory minimum sentencing provisions have at leastas significant an effect on a defendant’s liberty as additional convictions or statutory maximum provisions. 536 U. S., at 577–578. Thelogic of treating these provisions similarly is buttressed by our subsequent decision in United States v. Booker , 543 U. S. 220, 233–234 (2005).6 DEAN v. UNITED STATES S TEVENS , J., di s s e nting is telling. The Court cites the felony-murder rule, 18 U. S. C. §11 11, and Sentencing Gui d elines provisions that permit increased punis h ment based on the seriousness of the harm caused by the pre d icate act, see USS G §2A2.2(b)(3) (increasing the offense level foraggra v ate d assault according to th e seriousness of the inj u ry); §2D2. 3 (increasing the offense level for operating a common car

rier under the influen c e of alcoh o l or drugs if death or serious inju ry results). These examples have in common the provision of enhanced penalties for the infliction of some additional harm. Bycontrast, §924(c)(1)(A)(iii) punishes discharges whether orn o t any harm is realized. Additionally, in each o f the major i ty’s exam p l es Congress or the Sentencing Commission ma de explicit its intent to punish the resulting harm regard less of the perpetrator ’ s mens rea . Section 924(c)(1)(A)(iii) contains no analogous statement. For these reasons, §9 24(c)(1)(A)(iii) is readi l y distinguishable from the provisions the majority cites. Contrar yto the majority’s sug g est i on, the existence of provisions that penalize the unintended consequences of felonious conduct un derscores the reasonableness of read

ing §924(c)(1)(A)(iii) to require pro o f of intent. When harm results from a firearm discharge during the commissionof a violent felony or drug traffi ckin g offense, the defendant will be punishable p u rsuant to USSG §2 B3.1(b)(3) (in

creasing the offense level fo r robbery according to the resulting degree of b o dily injury), the fel o ny-murder rule, or a similarprovision. That a defendant will be subject to punishment for the h a rm resulting from a discharge whether or not he is also subject to the enha nced penalty imposed b y§924(c)(1)(A)(iii) indicates that the latte r provision was intended to serve a different purpose

— namely, to punish the more culpable act of intentional discharge.7 Cite as: 55 6 U

. S. ____ (2009) S TEVENS , J., di s s e nting III In sum, th e structure and history of §924(c)(1)(A) indi

cate that C o ngress meant to impose the more substantial penalty provided by clause (iii) on ly in cases of intentiona l discharge. Were the statute unclear in that regard, I would reach the same conclusion by applying the pre

sumption that Congress intended to include a mens rea requiremen t
. Mandatory sentencing provisions are not meaningfully distinguishable f r om statutes defining crimes to which we have previously applied the presump

tion; the ru le of Morissetteand Sta p lesan d not the felony

murder rul eshould therefore guide our analysis. Because there is insufficient evidence to rebut the pre s umption in this case, I respectfullydissent._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES
No. 08–5 27 4 CHRI ST OP HER MI CHAEL DEA N , PETITIONER v. UNITE D STAT ES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE ELEV ENTH CIRC U I T [Apr il 29, 20 0 9 ] J USTICE B RE YE R , dissenting. For many of the reasons that J USTICE S T E VENS sets forth, I believe the statutory provi s ion before us applies to intentional, but not to accident al, discharges of firearms. As J UST I CE S TEVENS points out, this Cour tin Bail eyv. United S t a t es , 516 U. S. 137, 148( 1995), held that simple possession of a firearm, without some type of “active e m ployment,” such as “brandishing, displaying, barteri ng, striking wi th, and, mos tobviousl y, firing or attempting to fire,” did not constitute “use” of a firearm. See ante , at 2 (dissenting opinion). It seems possible, if not likely, that Congress, in this statute, amended then-existing law b y criminalizing the “si m ple possession” that Bailey fou n d insufficientand then imposed a set of ever more seve re mandatory sentences for the cond uct tha tthe Court liste d in Bailey when it considered ways in which an offender might use a firearm. See ante , at 2–3. If so, the statutor y words “is di scharged,” 18 U. S. C. §924(c)(1)(A)(iii), refer to what Bailey called “firing,” and th ey do not encompass a n accidental discharge. I concede that the Court lists strong arguments to the contrar y . But, in my view, the “rule of lenity” tips th e balance against the majority’s position. The “rule of len

ity” as ordi narily applied reflects the law’s insistence that a criminal statute provide “fair warning .

. . of what the2 DEAN v. UNITED STATES
B REYER , J., diss enting law intends to do if acertain line is passed.” Un i t edS t a t e s v. Bass , 4 04 U. S. 336, 348 (1 971) (internal quotation marks omitted). But h e re, where a mandatory minimum sentence is at issue, its application reflects an additional consideration, namely , thatits application will likely produce aninterpretat i on that he ws more cl osely to Con

gress’ sentencing intent. That is because, in the case of a mandatory minimum, an interpretation thaterrs on the side of exclusion (an interpretive error on the side of leniency) still permi t sth e sentencing judge to impose a sent ence similar to, perhap s close to, the statutory sentence ev en if that s e ntence (be

cause of th e court’s in terpretatio nof the st atute) is n o t legislativel y required

. See, e.g., United States Sentenci ng Commission, Guidelines Manual §2B3.1(b)(2) (Nov. 200 8) (Specific Offense Characterist ics) (possibly calling for a 7

- to-9 year increase in the sentencing range in a case like this one). The sentencing judge is most lik ely to give a low non-Guidelines senten ce in an u nusual case—where the nature of the accident, for example, mak e s clear that the offender was not resp onsible andperhaps that the dis

charge put no one at risk. See, e.g., Koonv. United States , 518 U. S. 81, 92–94 (1 996). And, of course, the unusual nature of s u ch a case means it is the kind of case that Congress did not have in mind when it enacted the stat

ute. Moreover, an error that excludes (erroneously) a set of instances Congress meant to include (such as accidental discharge) could lead th e Sentencing Commission to f o cus on those cases and exercise its investigative and judg

mental powers to decide how those cases should be han

dled. This investigation would, in turn, make available to Congress a body of evi d ence and analysis th at will help it reconsider the statute if it wishes to do so. On the other hand, a ninterpretation that errs on the side of incl usion requires imposin g10 years of additional imprisonment on individuals whom Congress would not3 Cite as: 55 6 U

. S. ____ (2009)
B REYER , J., diss enting have intended to punish so harshly. Such a ninterpret a tion would prevent a s e ntencing court from giving a lower sentence even in an un usual case, for example, where the accident is unintended, unforeseeable, andimposes no additional risk. And such an in terpretatio n , by erron e ously takin gdiscretionaway from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended. Cf. Har r isv. Uni t ed Sta t es , 536 U. S. 545, 570 (2002) (B REYER , J. , concurrin g in part an d concurring in judgm e nt) (“statu t ory manda

tory minimums generally deny the judge the legal power to depart downward, n o matter h o w unusual the special circumstan ces that call for leniency”). Moreover, because such unusual cases ar e (by definition) rare, these errors would provide little incentive to the Sentencing Commis

sion or Congress to reconsider the statute. These interpretive asy mmetries gi ve the rul e of lenity special force in the context of mandatory minimum provi

sions. Because I beli eve the discharge provision hereis sufficiently ambiguous to warrant the application of th at rule, I respectfully dissent.