(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

DEAN v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 08–5274. Argued March 4, 2009—Decided April 29, 2009 

An individual convicted for using or carrying a firearm during and in

relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 5-year mandatory

minimum sentence, in addition to the punishment for the underlying

crime. 18 U. S. C. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if

the firearm is discharged.” §§924(c)(1)(A)(ii), (iii). 

Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because 

the firearm was “discharged” during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm 

count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge 

was accidental, and that §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. 

Held: Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 

10-year mandatory minimum applies if a gun is discharged in the 

course of a violent or drug trafficking crime, whether on purpose or 

by accident. Pp. 2–9.

(a) Subsection (iii) provides a minimum 10-year sentence “if the

firearm is discharged.” It does not require that the discharge be done 

knowingly or intentionally, or otherwise contain words of limitation.

This Court “ordinarily resist[s] reading words or elements into a 

statute that do not appear on its face.” Bates v. United States, 522 

U. S. 23, 29. Congress’s use of the passive voice further indicates

that subsection (iii) does not require proof of intent. Cf. Watson v. 

United States, 552 U. S. ___, ___. The statute’s structure also suggests no such limitation. Congress expressly included an intent re-
2 DEAN v. UNITED STATES 

Syllabus 

quirement for the 7-year mandatory minimum for brandishing a firearm by separately defining “brandish” to require that the firearm be

displayed “in order to intimidate” another person. §924(c)(4). Congress did not, however, separately define “discharge” to include an intent requirement. It is generally presumed that Congress acts intentionally when including particular language in one section of a

statute but not in another. Russello v. United States, 464 U. S. 16, 

23. Contrary to Dean’s contention, the phrase “during and in relation

to” in the opening paragraph of §924(c)(1)(A) does not modify “is discharged,” which appears in a separate subsection and in a different

voice than the principal paragraph. “[I]n relation to” is most naturally read to modify only the nearby verbs “uses” and “carries.” This 

reading will not lead to the absurd results posited by Dean. Pp. 3–6.

(b) Dean argues that subsection (iii) must be limited to intentional

discharges in order to give effect to the statute’s progression of 

harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely

accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless. The sentencing enhancement accounts for the risk of harm

resulting from the manner in which the crime is carried out, for 

which the defendant is responsible. See Harris v. United States, 536 

U. S. 545, 553. An individual bringing a loaded weapon to commit a

crime runs the risk that the gun will discharge accidentally. A gunshot—whether accidental or intended—increases the risk that others 

will be injured, that people will panic, or that violence will be used in 

response. It also traumatizes bystanders, as it did here. Pp. 6–9.

(c) Because the statutory text and structure demonstrate that the

discharge provision does not contain an intent requirement, the rule

of lenity is not implicated in this case. 

517 F. 3d 1224, affirmed. 

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, 

KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. STEVENS, 

J., and BREYER, J., filed dissenting opinions. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–5274 

CHRISTOPHER MICHAEL DEAN, PETITIONER 

v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009] 

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court. 

Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question

here is whether extra punishment Congress imposed for 

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 or

carrying a firearm during and in relation to any violent or

drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that 

offense receives a 5-year mandatory minimum sentence, in

addition to the punishment for the underlying crime. 

§924(c)(1)(A)(i). The mandatory minimum increases to 7

years “if the firearm is brandished” and to 10 years “if the

firearm is discharged.” §§924(c)(1)(A)(ii), (iii). 

In this case, a masked man entered a bank, waved a 

gun, and yelled at everyone to get down. He then walked 

behind the teller counter and started removing money 

from the teller stations. He grabbed bills with his left 
2 DEAN v. UNITED STATES 

Opinion of the Court 

hand, holding the gun in his right. At one point, he

reached over a teller to remove money from her drawer.

As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations.

The robber cursed and dashed out of the bank. Witnesses 

later testified that he seemed surprised that the gun had 

gone off. No one was hurt. App. 16–19, 24, 27, 47–48, 79.

Police arrested Christopher Michael Dean and Ricardo

Curtis Lopez for the crime. Both defendants were charged 

with conspiracy to commit a robbery affecting interstate

commerce, in violation of 18 U. S. C. §1951(a), and aiding

and abetting each other in using, carrying, possessing, and 

discharging a firearm during an armed robbery, in violation of §924(c)(1)(A)(iii) and §2. App. 11–12. At trial, 

Dean admitted that he had committed the robbery, id., at 

76–81, and a jury found him guilty on both the robbery

and firearm counts. The District Court sentenced Dean to 

a mandatory minimum term of 10 years in prison on the

firearm count, because the firearm “discharged” during 

the robbery. §924(c)(1)(A)(iii); App. 136.

Dean appealed, contending that the discharge was

accidental, and that the sentencing enhancement in

§924(c)(1)(A)(iii) requires proof that the defendant intended 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 decision 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 minimum. See 

United States v. Brown, 449 F. 3d 154 (CADC 2006) (holding that it does not). We granted certiorari to resolve that 

conflict. 555 U. S. ____ (2008). 

II 

Section 924(c)(1)(A) provides: 

“[A]ny person who, during and in relation to any 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of the Court 

crime of violence or drug trafficking crime . . . uses or 

carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the 

punishment provided for such crime of violence or 

drug trafficking crime— 

“(i) be sentenced to a term of imprisonment of not

less than 5 years; 

“(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years; and 

“(iii) if the firearm is discharged, be sentenced to a 

term of imprisonment of not less than 10 years.” 

The principal paragraph defines a complete offense and 

the subsections “explain how defendants are to ‘be sentenced.’” Harris v. United States, 536 U. S. 545, 552 

(2002). Subsection (i) “sets a catchall minimum” sentence 

of not less than five years. Id., at 552–553. Subsections 

(ii) and (iii) increase the minimum penalty if the firearm

“is brandished” or “is discharged.” See id., at 553. The 

parties disagree over whether §924(c)(1)(A)(iii) contains a

requirement that the defendant intend to discharge the

firearm. We hold that it does not. 

A 

“We start, as always, with the language of the statute.” 

Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of 

subsection (iii) provides that a defendant shall be sentenced to a minimum of 10 years “if the firearm is discharged.” It does not require that the discharge be done

knowingly or intentionally, or otherwise contain words of 

limitation. As we explained in Bates v. United States, 522 

U. S. 23 (1997), in declining to infer an “‘intent to defraud’” requirement into a statute, “we ordinarily resist 

reading words or elements into a statute that do not appear on its face.” Id., at 29. 

Congress’s use of the passive voice further indicates that

subsection (iii) does not require proof of intent. The pas-
4 DEAN v. UNITED STATES 

Opinion of the Court 

sive voice focuses on an event that occurs without respect

to a specific actor, and therefore without respect to any 

actor’s intent or culpability. Cf. Watson v. United States, 

552 U. S. ___, ___ (2007) (slip op., at 7) (use of passive 

voice in statutory phrase “to be used” in 18 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 structure of the statute also suggests that subsection (iii) is not limited to the intentional discharge of a 

firearm. Subsection (ii) provides a 7-year mandatory 

minimum sentence if the firearm “is brandished.” Congress expressly included an intent requirement for that 

provision, by defining “brandish” to mean “to display all or

part of the firearm, or otherwise make the presence of the

firearm known 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 been done for a specific purpose.

Congress did not, however, separately define “discharge”

to include an intent requirement. “[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 Congress acts intentionally and purposely 

in the disparate inclusion or exclusion.” Russello v. United 

States, 464 U. S. 16, 23 (1983) (internal quotation marks

omitted).

Dean argues that the statute is not silent on the question presented. Congress, he contends, included an intent 

element in the opening paragraph of §924(c)(1)(A), and 

that element extends to the sentencing enhancements. 

Section 924(c)(1)(A) criminalizes using or carrying a firearm “during and in relation to” any violent or drug trafficking crime. In Smith v. United States, 508 U. S. 223 

(1993), we stated that the phrase “in relation to” means

“that the firearm must have some purpose or effect with 
Cite as: 556 U. S. ____ (2009) 5 

Opinion of the Court 

respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” 

Id., at 238. Dean argues that the adverbial phrase thus

necessarily embodies an intent requirement, and that the

phrase modifies all the verbs in the statute—not only use, 

carry, and possess, but also brandish and discharge. Such 

a reading requires that a perpetrator knowingly discharge

the firearm for the enhancement to apply. If the discharge

is accidental, Dean argues, it is not “in relation to” the 

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—“possesses”—is modified by 

its own adverbial clause, “in furtherance of.” The last two 

verbs—“is brandished” and “is discharged”—appear in

separate subsections and 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 better reading of the statute 

is that the adverbial phrases in the opening paragraph—

“in relation to” and “in furtherance of”—modify their 

respective nearby verbs, and that neither phrase extends

to the sentencing factors. 

But, Dean argues, such a reading will lead to absurd 

results. The discharge provision on its face contains no 

temporal or causal limitations. In the absence of an intent 

requirement, the enhancement would apply “regardless of

when the actions occur, or by whom or for what reason 

they are taken.” Brief for Petitioner 11–12. It would, for 

example, apply if the gun used during the crime were

discharged “weeks (or years) before or after the crime.”

Reply Brief for Petitioner 11. 

We do not agree that implying an intent requirement is 

necessary to address such concerns. As the Government 

recognizes, sentencing factors such as the one here “often

involve . . . special features of the manner in which a basic 
6 DEAN v. UNITED STATES 

Opinion of the Court 

crime was carried out.” Brief for United States 29 (quoting Harris, 536 U. S., at 553; internal quotation marks 

omitted). The basic crime here is using or carrying a

firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of any

such crime. Fanciful hypotheticals testing whether the 

discharge was a “special featur[e]” of how the “basic crime

was carried out,” Harris, 536 U. S., at 553 (internal quotation marks omitted), are best addressed in those terms,

not by contorting and stretching the statutory language to

imply an intent requirement. 

B 

Dean further argues that even if the statute is viewed as 

silent on the intent question, that silence compels a ruling 

in his favor. There is, he notes, a presumption that criminal prohibitions include a requirement that the Government prove the defendant intended the conduct made

criminal. In light of this presumption, we have “on a

number of occasions read a state-of-mind component into

an offense even when the statutory definition did not in 

terms so provide.” United States v. United States Gypsum 

Co., 438 U. S. 422, 437 (1978). “[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples v. 

United States, 511 U. S. 600, 606 (1994). 

Dean argues that the presumption is especially strong

in this case, given the structure and purpose of the statute. In his view, the three subsections are intended to 

provide harsher penalties for increasingly culpable conduct: a 5-year minimum for using, carrying, or possessing 

a firearm; a 7-year minimum for brandishing a firearm;

and a 10-year minimum for discharging a firearm. Incorporating an intent requirement into the discharge provision is necessary to give effect to that progression, because

an accidental discharge is less culpable than intentional 
Cite as: 556 U. S. ____ (2009) 7 

Opinion of the Court 

brandishment. See Brown, 449 F. 3d, at 156. 

It is unusual to impose criminal punishment for the

consequences of purely accidental conduct. But it is not 

unusual to punish individuals for the unintended consequences of their unlawful acts. See 2 W. LaFave, Substantive Criminal Law §14.4, pp. 436–437 (2d ed. 2003). 

The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing

another felony, the defendant can be convicted of murder. 

See 18 U. S. C. §1111. The Sentencing Guidelines reflect 

the same principle. See United States Sentencing Commission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008) 

(USSG) (increasing offense level for aggravated assault 

according to the seriousness of the injury); §2D2.3 (increasing offense level for operating or directing the operation of a common carrier under the influence of alcohol or 

drugs if death or serious bodily injury results).

Blackstone expressed the idea in the following terms: 

“[I]f any accidental mischief happens to follow from 

the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing 

unlawful, and a consequence ensues which he did not 

foresee or intend, as the death of a man or the like, his 

want of foresight shall be no excuse; for, being guilty 

of one offence, in doing antecedently what is in itself 

unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. 

Blackstone, Commentaries on the Laws of England 

26–27 (1769). 

Here the defendant is already guilty of unlawful conduct 

twice over: a violent or drug trafficking offense and the 

use, carrying, or possession of a firearm in the course of 

that offense. That unlawful conduct was not an accident. 

See Smith, 508 U. S., at 238. 

The fact that the actual discharge of a gun covered 
8 DEAN v. UNITED STATES 

Opinion of the Court 

under §924(c)(1)(A)(iii) may be accidental does not mean

that the defendant is blameless. The sentencing enhancement in subsection (iii) accounts for the risk of harm 

resulting from the manner in which the crime is carried 

out, for which the defendant is responsible. See Harris, 

supra, at 553. An individual who brings a loaded weapon

to commit a crime runs the risk that the gun will discharge accidentally. A gunshot in such circumstances—

whether accidental or intended—increases the risk that 

others will be injured, that people will panic, or that violence (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 during the underlying violent or drug

trafficking crime, leave the gun at home, or—best yet—

avoid committing the felony in the first place.

JUSTICE STEVENS contends that the statute should be 

read to require a showing of intent because harm resulting 

from a discharge may be punishable under other provisions, such as the Sentencing Guidelines (but only if “bodily injury” results). Post, at 6 (dissenting opinion) (citing 

USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(iii) 

elected to impose a mandatory term, without regard to

more generally applicable sentencing provisions. Punishment available under such provisions therefore does not 

suggest that the statute at issue here is limited to intentional discharges.

And although the point is not relevant under the correct

reading of the statute, it is wrong to assert that the gunshot 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?’”). 
Cite as: 556 U. S. ____ (2009) 9 

Opinion of the Court 

C 

Dean finally argues that any doubts about the proper

interpretation of the statute should be resolved in his 

favor under the rule of lenity. See Brief for Petitioner 6. 

“The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule,

for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U. S. 125, 138 (1998); see also 

Smith, supra, at 239 (“The mere possibility of articulating

a narrower construction, however, does not by itself make 

the rule of lenity applicable”). “To invoke the rule, we 

must conclude that there is a grievous ambiguity or uncertainty in the statute.” Muscarello, supra, at 138–139 

(internal quotation marks omitted). In this case, the 

statutory text and structure convince us that the discharge provision does not contain an intent requirement.

Dean’s contrary arguments are not enough to render the

statute grievously ambiguous. 

* * * 

Section 924(c)(1)(A)(iii) requires no separate proof of

intent. The 10-year mandatory minimum applies if a gun 

is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. The judgment of the Court of Appeals for the Eleventh Circuit is

affirmed. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

STEVENS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–5274 

CHRISTOPHER MICHAEL DEAN, PETITIONER 

v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009] 

JUSTICE STEVENS, dissenting. 

Accidents happen, but they seldom give rise to criminal liability. Indeed, if they cause no harm they seldom

give rise to any liability. The Court today nevertheless

holds that petitioner is subject to a mandatory additional 

sentence—a species of criminal liability—for an accident

that caused no harm. For two reasons, 18 U. S. C. 

§924(c)(1)(A)(iii) should not be so construed. First, the 

structure of §924(c)(1)(A) suggests that Congress intended 

to provide escalating sentences for increasingly culpable 

conduct and that the discharge provision therefore applies 

only to intentional discharges. Second, even if the statute 

did not affirmatively support that inference, the commonlaw presumption that provisions imposing criminal penalties require proof of mens rea would lead to the same 

conclusion. Cf. United States v. X-Citement Video, Inc., 

513 U. S. 64, 70 (1994). Accordingly, I would hold that the

Court of Appeals erred in concluding that petitioner could 

be sentenced under §924(c)(1)(A)(iii) absent evidence that

he intended to discharge his gun. 

I 

It is clear from the structure and history of §924(c)(1)(A) 

that Congress intended §924(c)(1)(A)(iii) to apply only to

intentional discharges. The statute’s structure supports 
2 DEAN v. UNITED STATES 

STEVENS, J., dissenting 

the inference that Congress intended to impose increasingly harsh punishment for increasingly culpable conduct.

The lesser enhancements for carrying or brandishing 

provided by clauses (i) and (ii) clearly require proof of 

intent. Clause (i) imposes a 5-year mandatory minimum

sentence for using or carrying a firearm “during and in

relation to” a crime of violence or drug trafficking offense,

or possessing a firearm “in furtherance” of such an offense. 

As we have said before, the provision’s relational terms 

convey that it does not reach inadvertent conduct. See 

Smith v. United States, 508 U. S. 223, 238 (1993) (“The

phrase ‘in relation to’ . . . at a minimum, clarifies that the

firearm must have some purpose or effect with respect to

the drug trafficking crime; its presence or involvement 

cannot be the result of accident or coincidence”). Similarly, clause (ii) mandates an enhanced penalty for brandishing a firearm only upon proof that a defendant had

the specific intent to intimidate. See §924(c)(4). In that 

context, the most natural reading of clause (iii), which

imposes the greatest mandatory penalty, is that it provides additional punishment for the more culpable act of

intentional discharge.1 

The legislative history also indicates that Congress

intended to impose an enhanced penalty only for intentional discharge. In Bailey v. United States, 516 U. S. 137, 

148 (1995), the Court held that “use” of a firearm for

purposes of §924(c)(1) required some type of “active employment,” such as “brandishing, displaying, bartering,

striking with, and, most obviously, firing or attempting to 

fire.” Congress responded to Bailey by amending 

—————— 

1Contrary to the Court’s suggestion, ante, at 4, Congress’ provision of 

a specific intent element for brandishing and not for discharge only 

supports the conclusion that Congress did not intend enhancements

under the discharge provision to require proof of specific intent; it

supports no inference that Congress also intended to eliminate any

general intent requirement and thereby make offenders strictly liable. 
Cite as: 556 U. S. ____ (2009) 3 

STEVENS, J., dissenting 

§924(c)(1), making it an offense 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 also 144 

Cong. Rec. 26608 (1998) (remarks of Sen. DeWine) (referring to the amendments as the “Bailey 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 there were no evidence that Congress intended

§924(c)(1)(A)(iii) to apply only to intentional discharges,

the presumption that criminal provisions include an intent 

requirement would lead me to the same conclusion. Consistent with the common-law tradition, the requirement of 

mens rea has long been the rule of our criminal jurisprudence. See United States v. United States Gypsum Co., 

438 U. S. 422 (1978). The concept of crime as a “concurrence of an evil-meaning mind with an evil-doing hand . . .

took deep and early root in American soil.” Morissette v. 

United States, 342 U. S. 246, 251–252 (1952). Legislating

against that backdrop, States often omitted intent elements when codifying the criminal law, and “courts assumed that the omission did not signify disapproval of the 

principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory 

affirmation.” Id., at 252. Similarly, absent a clear statement by Congress that it intended to create a strictliability offense, a mens rea requirement has generally

been presumed in federal statutes. See id., at 273; Staples 

v. United States, 511 U. S. 600, 605–606 (1994). With only

a few narrowly delineated exceptions for such crimes as

statutory rape and public welfare offenses, the presump-
4 DEAN v. UNITED STATES 

STEVENS, J., dissenting 

tion remains the rule today. See Morissette, 342 U. S., at 

251–254, and n. 8; see also Staples, 511 U. S., at 606–607 

(discussing United States v. Balint, 258 U. S. 250 (1922)). 

Although mandatory minimum sentencing provisions

are of too recent genesis to have any common-law pedigree, see Harris v. United States, 536 U. S. 545, 579, 581, 

n. 5 (2002) (THOMAS, J., dissenting), there is no sensible 

reason for treating them differently from offense elements 

for purposes of the presumption of mens rea. Sentencing

provisions of this type have substantially the same effect

on a defendant’s liberty as aggravated offense provisions.

Although a sentencing judge has discretion to issue sentences under §924(c)(1)(A) within the substantial range

bounded on one end by the 5-, 7-, or 10-year mandatory

minimum sentence and on the other by the statutory 

maximum sentence, judges in practice rarely exercise that

discretion. As JUSTICE THOMAS noted in Harris, “the 

sentence imposed when a defendant is found only to have 

‘carried’ a firearm ‘in relation to’ a drug trafficking offense

appears to be, almost uniformly, if not invariably, five

years,” and “those found to have brandished a firearm 

typically, if not always, are sentenced only to 7 years in 

prison while those found to have discharged a firearm are

sentenced only to 10 years.” Id., at 578 (dissenting opinion); 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 sentence and any increase is

an upward departure). If anything, imposition of a mandatory minimum sentence under §924(c)(1)(A) will likely 

have a greater effect on a defendant’s liberty than will

conviction for another offense because, unlike sentences 

for most federal offenses, sentences imposed pursuant to 

that section must be served consecutively to any other 

sentence. See §924(c)(1)(D)(ii). 

As the foregoing shows, mandatory minimum sentenc-
 Cite as: 556 U. S. ____ (2009) 5 

STEVENS, J., dissenting 

ing provisions are in effect no different from aggravated 

offense provisions. The common-law tradition of requiring 

proof of mens rea to establish criminal culpability should 

thus apply equally to such sentencing factors. Absent a 

clear 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 conclusion 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 States v. 

R. L. C., 503 U. S. 291, 305 (1992) (plurality opinion); 

Bifulco v. United States, 447 U. S. 381, 387 (1980); Ladner

v. United States, 358 U. S. 169, 178 (1958).2 Accordingly, 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 

—————— 

2To 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 McMillan v. Pennsylvania, 477 U. S. 79, 87–88 (1986), the Court distinguished for purposes 

of constitutional analysis mandatory minimum sentencing schemes 

from offense elements and provisions that increase the statutory 

maximum sentence. I continue to agree with JUSTICE THOMAS’ compelling dissent in Harris, in which he rejected the distinction on the 

ground that mandatory minimum sentencing provisions have at least 

as significant an effect on a defendant’s liberty as additional convictions or statutory maximum provisions. 536 U. S., at 577–578. The 

logic 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 

STEVENS, J., dissenting 

is telling. The Court cites the felony-murder rule, 18

U. S. C. §1111, and Sentencing Guidelines provisions that 

permit increased punishment based on the seriousness of 

the harm caused by the predicate act, see USSG 

§2A2.2(b)(3) (increasing the offense level for aggravated

assault according to the seriousness of the injury); §2D2.3

(increasing the offense level for operating a common carrier under the influence of alcohol or drugs if death or 

serious injury results). These examples have in common

the provision of enhanced penalties for the infliction of

some additional harm. By contrast, §924(c)(1)(A)(iii) 

punishes discharges whether or not any harm is realized.

Additionally, in each of the majority’s examples Congress 

or the Sentencing Commission made explicit its intent to

punish the resulting harm regardless of the perpetrator’s 

mens rea. Section 924(c)(1)(A)(iii) contains no analogous 

statement. For these reasons, §924(c)(1)(A)(iii) is readily

distinguishable from the provisions the majority cites.

Contrary to the majority’s suggestion, the existence of 

provisions that penalize the unintended consequences of 

felonious conduct underscores the reasonableness of reading §924(c)(1)(A)(iii) to require proof of intent. When harm 

results from a firearm discharge during the commission of 

a violent felony or drug trafficking offense, the defendant 

will be punishable pursuant to USSG §2B3.1(b)(3) (increasing the offense level for robbery according to the

resulting degree of bodily injury), the felony-murder rule, 

or a similar provision. That a defendant will be subject to

punishment for the harm resulting from a discharge 

whether or not he is also subject to the enhanced penalty 

imposed by §924(c)(1)(A)(iii) indicates that the latter 

provision was intended to serve a different purpose—

namely, to punish the more culpable act of intentional

discharge. 
Cite as: 556 U. S. ____ (2009) 7 

STEVENS, J., dissenting 

III 

In sum, the structure and history of §924(c)(1)(A) indicate that Congress meant to impose the more substantial 

penalty provided by clause (iii) only in cases of intentional

discharge. Were the statute unclear in that regard, I 

would reach the same conclusion by applying the presumption that Congress intended to include a mens rea 

requirement. Mandatory sentencing provisions are not

meaningfully distinguishable from statutes defining

crimes to which we have previously applied the presumption; the rule of Morissette and Staples and not the felonymurder rule should therefore guide our analysis. Because 

there is insufficient evidence to rebut the presumption in 

this case, I respectfully dissent. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–5274 

CHRISTOPHER MICHAEL DEAN, PETITIONER 

v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009] 

JUSTICE BREYER, dissenting. 

For many of the reasons that JUSTICE STEVENS sets 

forth, I believe the statutory provision before us applies to 

intentional, but not to accidental, discharges of firearms. 

As JUSTICE STEVENS points out, this Court in Bailey v. 

United States, 516 U. S. 137, 148 (1995), held that simple 

possession of a firearm, without some type of “active employment,” such as “brandishing, displaying, bartering,

striking with, and, most obviously, 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 by

criminalizing the “simple possession” that Bailey found 

insufficient and then imposed a set of ever more severe

mandatory sentences for the conduct that the Court listed 

in Bailey when it considered ways in which an offender 

might use a firearm. See ante, at 2–3. If so, the statutory 

words “is discharged,” 18 U. S. C. §924(c)(1)(A)(iii), refer to 

what Bailey called “firing,” and they do not encompass an

accidental discharge.

I concede that the Court lists strong arguments to the 

contrary. But, in my view, the “rule of lenity” tips the 

balance against the majority’s position. The “rule of lenity” as ordinarily applied reflects the law’s insistence that 

a criminal statute provide “fair warning . . . of what the 
2 DEAN v. UNITED STATES 

BREYER, J., dissenting 

law intends to do if a certain line is passed.” United States 

v. Bass, 404 U. S. 336, 348 (1971) (internal quotation

marks omitted). But here, where a mandatory minimum 

sentence is at issue, its application reflects an additional

consideration, namely, that its application will likely

produce an interpretation that hews more closely to Congress’ sentencing intent.

That is because, in the case of a mandatory minimum, 

an interpretation that errs on the side of exclusion (an

interpretive error on the side of leniency) still permits the 

sentencing judge to impose a sentence similar to, perhaps

close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not 

legislatively required. See, e.g., United States Sentencing 

Commission, Guidelines Manual §2B3.1(b)(2) (Nov. 2008) 

(Specific Offense Characteristics) (possibly calling for a 7-

to-9 year increase in the sentencing range in a case like

this one). The sentencing judge is most likely to give a low 

non-Guidelines sentence in an unusual case—where the 

nature of the accident, for example, makes clear that the 

offender was not responsible and perhaps that the discharge put no one at risk. See, e.g., Koon v. United States, 

518 U. S. 81, 92–94 (1996). And, of course, the unusual 

nature of such a case means it is the kind of case that 

Congress did not have in mind when it enacted the statute. Moreover, an error that excludes (erroneously) a set 

of instances Congress meant to include (such as accidental 

discharge) could lead the Sentencing Commission to focus

on those cases and exercise its investigative and judgmental powers to decide how those cases should be handled. This investigation would, in turn, make available to 

Congress a body of evidence and analysis that will help it 

reconsider the statute if it wishes to do so. 

On the other hand, an interpretation that errs on the 

side of inclusion requires imposing 10 years of additional 

imprisonment on individuals whom Congress would not 
Cite as: 556 U. S. ____ (2009) 3 

BREYER, J., dissenting 

have intended to punish so harshly. Such an interpretation would prevent a sentencing court from giving a lower 

sentence even in an unusual case, for example, where the

accident is unintended, unforeseeable, and imposes no 

additional risk. And such an interpretation, by erroneously taking discretion away from the sentencing judge, 

would ensure results that depart dramatically from those

Congress would have intended. Cf. Harris v. United 

States, 536 U. S. 545, 570 (2002) (BREYER, J., concurring

in part and concurring in judgment) (“statutory mandatory minimums generally deny the judge the legal power

to depart downward, no matter how unusual the special

circumstances that call for leniency”). Moreover, because 

such unusual cases are (by definition) rare, these errors 

would provide little incentive to the Sentencing Commission or Congress to reconsider the statute. 

These interpretive asymmetries give the rule of lenity

special force in the context of mandatory minimum provisions. Because I believe the discharge provision here is 

sufficiently ambiguous to warrant the application of that 

rule, I respectfully dissent.