SUPREME COURT CASES

ON SENTENCING ISSUES

Prepared by

the Office of General Counsel

United States Sentencing Commission

October 2002

 

Disclaimer: Information provided by the Commission's Legal Staff is offered to assist in understanding and applying

the sentencing guidelines. The information does not necessarily represent the official position of the Commission,

should not be considered definitive, and is not binding upon the Commission, the court, or the parties in any case.
Supreme Court Cases

October 7, 2002

pg. i

TABLE OF CONTENTS

Page

Supreme Court Cases On Sentencing Issues ................................... 1

Mistretta v. United States, 488 U.S. 361 (1989) ................................ 1

Braxton v. United States, 500 U.S. 344 (1991) ................................. 1

Chapman v. United States, 500 U.S. 453 (1991) ................................ 1

Burns v. United States, 501 U.S. 129 (1991) ................................... 1

Williams v. United States, 503 U.S. 193 (1992) ................................ 2

United States v. Wilson, 503 U.S. 329 (1992) .................................. 2

Wade v. United States, 504 U.S. 181 (1992) ................................... 3

United States v. Dunnigan, 507 U.S. 87 (1993) ................................ 3

Stinson v. United States, 508 U.S. 36 (1993) .................................. 3

United States v. Granderson, 511 U.S. 39 (1994) ............................... 4

Custis v. United States, 511 U.S. 485 (1994) .................................. 4

Nichols v. United States, 511 U.S. 738 (1994) ................................. 4

Witte v. United States, 515 U.S. 389 (1995) ................................... 5

Neal v. United States, 516 U.S. 284 (1996) .................................... 5

Koon v. United States, 518 U.S. 81 (1996) .................................... 5

Melendez v. United States, 518 U.S. 120 (1996) ................................ 6

United States v. Watts, 519 U.S. 1144 (1997). Per curiam ....................... 6

United States v. Gonzales, 520 U.S. 1 (1997) .................................. 7

United States v. LaBonte, 520 U.S. 751 (1997) ................................. 7

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ........................ 8

Edwards v. United States, 523 U.S. 511 (1998) ................................ 8

Jones v. United States, 526 U.S. 227 (1999) ................................... 8

Apprendi v. New Jersey, 530 U.S. 466 (2000) .................................. 9

Buford v. United States, 532 U.S. 59 (2001) .................................. 10

United States v. Cotton, 122 S. Ct. 1781 (2002) ............................... 10

Harris v. United States, 122 S. Ct. 2406 (2002) ............................... 11

Opinions on Related Sentencing Issues ......................................... 12

 18 U.S.C. § 924(c) .......................................................... 12

Deal v. United States, 508 U.S. 129 (1993) ................................... 12
Page

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Smith v. United States, 508 U.S. 223 (1993) .................................. 12

Bailey v. United States, 516 U.S. 137 (1995) ................................. 12

United States v. Gonzales, 520 U.S. 1 (1997) ................................. 13

Muscarello v. United States, 524 U.S. 125 (1998) ............................. 13

Castillo v. United States, 120 S. Ct. 2090 (2000) .............................. 13

Fed. R. Crim. P. 16(a)(1)(C) — Selective Prosecution ............................ 14

United States v. Armstrong, 517 U.S. 456 (1996) .............................. 14

Fifth Amendment ............................................................ 15

Mitchell v. United States, 526 U.S. 314 (1999) ................................ 15

Supervised Release .......................................................... 15

United States v. Johnson, 120 S. Ct. 1114 (2000) .............................. 15

United States v. Johnson, 120 S. Ct. 1795 (2000) .............................. 16
Supreme Court Cases

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Supreme Court Cases On Sentencing Issues

Mistretta v. United States, 488 U.S. 361 (1989). Opinion by Justice Blackmun.

The Supreme Court, in an 8-1 decision, upheld the Sentencing Reform Act of 1984, which

established the United States Sentencing Commission, against claims that it violated the doctrine of

separation of powers and excessively delegated Congress's legislative authority. The Court upheld

Congress's placement of the Commission in the Judicial Branch of government, and with respect to

the composition of the Commission, upheld the requirement that three federal judges serve on the

Commission with non-judges. The Court held that the Commission was an essentially "neutral,

endeavor" in which judicial participation is "peculiarly appropriate." The Court also found no fault

with the power of the President to appoint members of the Commission and remove them for cause,

holding that neither power significantly threatened judicial independence.

Braxton v. United States, 500 U.S. 344 (1991). Opinion by Justice Scalia.

The Supreme Court, in a unanimous opinion, acknowledges that the initial and primary task

of eliminating conflicts among the circuit courts with respect to the statutory interpretation of the

guidelines lies with the Commission. According to the Supreme Court, "in charging the Commission

`periodically [to] review and revise' the guidelines, Congress necessarily contemplated that the

Commission would periodically review the work of the courts, and would make whatever clarifying

revisions to the guidelines conflicting judicial decisions might suggest." Since the Commission has

the authority to "periodically review and revise" and the "unusual explicit power" to decide whether

and to what extent its amendments reducing sentences will be given retroactive effect, Justice Scalia

suggests that the court should be more "restrained and circumspect" in using its certiorari power to

resolve circuit conflicts. The Supreme Court decided not to address the first issue presented in the

case because the Commission had requested public comment on a change to §1B1.2 which would

eliminate the conflict and because the case could be decided on other grounds.

Chapman v. United States, 500 U.S. 453 (1991). Opinion by Chief Justice Rehnquist.

The Supreme Court, in a 7-2 opinion, held that the statutory construction of 21 U.S.C.

§ 841(b)(1)(B)(v) requires that the carrier weight be included in determining the lengths of

sentences for trafficking in LSD, and that this construction does not violate due process nor is it

unconstitutionally vague.

Burns v. United States, 501 U.S. 129 (1991). Opinion by Justice Marshall.

The Supreme Court, in a 5-4 decision, held that "before a district court can depart on a

ground not identified as a ground for upward departure either in the presentence report or in a

prehearing submission by the government, Rule 32 requires that the district court give the parties

reasonable notice that it is contemplating such a ruling." In the instant case, the presentence report

concluded that there were no factors warranting a departure. Although neither party objected to the

presentence report, the district court judge announced at the end of the sentencing hearing that he

was making an upward departure from a guideline range of 30-37 months and imposing a sentence

of 60 months. The Supreme Court remanded the case for further proceedings.
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Williams v. United States, 503 U.S. 193 (1992). Opinion by Justice O'Connor.

The Supreme Court, in a 7-2 opinion, held that the appellate court in reviewing a departure

decision based on both proper and improper factors, must conclude that the district court would

have imposed the same sentence absent the erroneous factor, before it can affirm the sentence based

on its independent assessment that the departure was reasonable pursuant to 18 U.S.C. § 3742(f)(2). 

According to the Supreme Court, the use of a departure factor which is prohibited by a policy

statement can be an incorrect application of the guidelines under 18 U.S.C. § 3742(f)(1). However,

a remand is not automatically required under §3742(f)(1) in order to rectify an incorrect application

of the guidelines. The majority opinion disagreed with the dissenters that the reasonableness

standard of 18 U.S.C. § 3742(f)(2) was the sole provision governing appellate review of departure

decisions.

United States v. R.L.C., 503 U.S. 291 (1992). Opinion by Justice Souter.

The Supreme Court held that 18 U.S.C. § 5037(c)(1)(B), which limits the sentence of a

juvenile to "the maximum term of imprisonment that would be authorized if the juvenile had been

tried and convicted as an adult," refers to the maximum sentence that could be imposed if the

juvenile were being sentenced after application of the sentencing guidelines. The Court's holding

does not require plenary application of the guidelines to juvenile proceedings. According to the

Supreme Court, "a sentencing court's concern with the guidelines goes solely to the upper limit of

the proper guideline range as setting the maximum term for which a juvenile may be committed to

official detention, absent circumstances that which would warrant departure under § 3553(b)." The

Court rejected the government's argument that the term "authorized" in § 5037(c)(1)(B) means the

maximum term of imprisonment provided for in the statute defining the offense. Justice O'Connor in

the dissenting opinion, joined by Justice Blackmun, stated that the Court should have honored

"Congress' clear intention to leave settled practice in juvenile sentencing undisturbed." According

to the dissent, "we should wait for the Sentencing Commission and Congress to decide whether to

fashion appropriate guidelines for juveniles."

United States v. Wilson, 503 U.S. 329 (1992). Opinion by Justice Thomas. 

The Supreme Court, in a 7-2 opinion, held that 18 U.S.C. § 3585(b) authorizes the Attorney

General, rather than the district court, to calculate the credit toward the term of imprisonment for any

time the defendant spent in official detention prior to the date the sentence commences. According

to the majority opinion, the statutory language shows that Congress intended that the computation of

the credit occur after the defendant begins his sentence. Thus, a district court judge cannot apply §

3585(b) at the sentencing hearing. Although § 3585(b) does not specifically refer to the Attorney

General, the Court found that when Congress rewrote 18 U.S.C. § 3568 and changed it to its present

form in § 3585(b) that it was likely "that the former reference to the Attorney General was simply

lost in the shuffle."
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Wade v. United States, 504 U.S. 181 (1992). Opinion by Justice Souter.

The Supreme Court, in a unanimous opinion, held that "federal district courts have authority

to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they

find that the refusal was based on an unconstitutional motive." According to the Supreme Court, "a

claim that the defendant merely provided substantial assistance will not entitle a defendant to a

remedy or even discovery or an evidentiary hearing. Nor would additional but generalized

allegations of improper motive." In the instant case, the defendant failed to show or allege that the

government refused to file the motion for suspect reasons such as his race or his religion. The Court

noted that it did not decide whether §5K1.1 implements and therefore supersedes 18 U.S.C.

§ 3553(e) or whether the two provisions pose separate obstacles. The defendant also did not claim

that the government-motion requirement was itself unconstitutional, or that the requirement was

superseded in this case by any plea agreement by the government to file a substantial-assistance

motion. According to the Supreme Court, the government-motion requirement in both §5K1.1 and §

3553(e) limiting the court's authority "gives the government a power, not a duty, to file a motion

when a defendant has substantially assisted."

United States v. Dunnigan, 507 U.S. 87 (1993). Opinion by Justice Kennedy.

The Supreme Court, in a unanimous decision, held that a sentence enhancement pursuant to

§3C1.1 when there has been a proper determination of perjury "is not in contravention of the

privilege of an accused to testify in her own behalf." According to the Supreme Court, "the

arguments made by the [Fourth Circuit] Court of Appeals to distinguish [United States v.] Grayson

are wide of the mark." 

Stinson v. United States, 508 U.S. 36 (1993). Opinion by Justice Kennedy.

The Supreme Court, in a unanimous opinion, held that "commentary in the Guidelines

Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." 

Accordingly, the Eleventh Circuit erred in concluding that commentary was not binding and using

that as a basis for not applying an amendment to the commentary of §4B1.2 which stated that felonin-possession is not included in the term "crime of violence." The Supreme Court concluded that

guideline commentary should be treated like an agency's interpretation of its own legislative rules.

"According this measure of controlling authority to the commentary is consistent with the role the

Sentencing Reform Act contemplates for the Sentencing Commission. The Commission, after all,

drafts the guidelines as well as the commentary interpreting them, so we can presume that the

interpretations of the guidelines contained in the commentary represent the most accurate indications

of how the Commission deems that the guidelines should be applied to be consistent with the

Guidelines Manual as a whole as well as the authorizing statute." According to the Supreme Court,

"Amended Commentary is binding on the federal courts even though it is not reviewed by Congress,

and prior judicial constructions of a particular guideline cannot prevent the Commission from

adopting a conflicting interpretation that satisfies the standard we set forth today."
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United States v. Granderson, 511 U.S. 39 (1994). Opinion by Justice Ginsburg.

The Supreme Court, in a plurality opinion (5-1-1-2), interpreted 18 U.S.C. § 3565(a), which

provides that if a person on probation possesses illegal drugs "the court shall revoke the sentence of

probation and sentence the defendant to not less than one-third of the original sentence." The Court

held that, as that term is used in 18 U.S.C. § 3565(a), "original sentence" refers to the original

potential imprisonment range under the guidelines. Accordingly, upon revocation of probation for

possession of drugs, the minimum sentence is one-third of the maximum of the original guideline

range, and the maximum sentence is the maximum of the original guideline range. Granderson,

whose original guideline range was 0-6 months, had received a five-year term of probation. Upon

revocation for possession of illegal drugs, the district court sentenced him to one-third of the five

years: 20 months incarceration. In reversing, the Eleventh Circuit invoked the rule of lenity and

held that "original sentence" referred to the original range, which set the maximum term of

imprisonment upon revocation at six months and the minimum at two months. The opinion of the

Court of Appeals for the Eleventh Circuit was affirmed.

Custis v. United States, 511 U.S. 485 (1994). Opinion by Chief Justice Rehnquist.

The Supreme Court, in a 6-3 opinion, held that with the sole exception of convictions

obtained in violation of the right to counsel, a defendant in a federal sentencing procedure does not

have a right to collaterally attack the validity of previous state convictions that are used to enhance

his sentence under the Armed Career Criminal Act. The defendant argued that his previous

convictions were invalid because of ineffective assistance of counsel, because his guilty plea was

not knowing and intelligently made, and because he had not been adequately advised of his rights in

opting for a "stipulated facts" trial. According to the Court, "None of these alleged constitutional

violations rises to the level of jurisdictional defect resulting from the failure to appoint counsel at

all." The Court refused to extend the right to collaterally attack a prior conviction used for

sentencing enhancement beyond the right to counsel established in Gideon v. Wainwright, 372 U.S.

335 (1963).

Nichols v. United States, 511 U.S. 738 (1994). Opinion by Chief Justice Rehnquist.

The Supreme Court held, "consistent with the Sixth and Fourteenth Amendments of the

Constitution, that an uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S.

367 (1979),] because no prison term was imposed, is also valid when used to enhance punishment

at a subsequent conviction." The case arose when the district court assessed one criminal history

point against the defendant for a state misdemeanor conviction—driving under the influence (DUI)

—for which the defendant was fined but not imprisoned. The majority of the Court reaffirmed that

the Sixth Amendment right to counsel does not attach to criminal proceedings in which imprisonment

is not imposed. The logical consequence of that holding is that if the conviction is valid, it can be

relied on to enhance a subsequent sentence. According to the Court, reliance on such a conviction is

consistent with traditional sentencing practices of using a lesser standard than that for proving guilt. 

For example, consistent with due process, the defendant could have been sentenced more severely

based simply on evidence of the conduct underlying the DUI. The government would only have to

prove the conduct by a preponderance of evidence. Therefore, it must be constitutional to use a

prior conviction, where that conduct has been proven beyond a reasonable doubt. In deciding the

case, the Court overruled Baldesar v. Illinois, 446 U.S. 222 (1980).
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pg. 5

Witte v. United States, 515 U.S. 389 (1995). Opinion by Justice O'Connor.

The Supreme Court, in an 8-1 decision, held that "because consideration of relevant conduct

in determining a petitioner's sentence within the legislatively authorized punishment range does not

constitute punishment for that conduct," a second prosecution involving that conduct "does not

violate the Double Jeopardy Clauses' s prohibition against the imposition of multiple punishments

for the same offense." The Court rejected the petitioner's claim that his indictment for cocaine

offenses violated the Double Jeopardy Clause because the cocaine offenses had already been

considered as relevant conduct in sentencing for an earlier marijuana offense. The majority relied

on the Court's previous decision in Williams v. Oklahoma, 358 U.S. 576 (1959) specifically

rejecting the claim that "double jeopardy principles bar a later prosecution or punishment for

criminal activity where that criminal activity has been considered at sentencing for a second crime." 

The majority further noted that the consideration of relevant conduct punishes the offender "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 may or may not constitute)."

Neal v. United States, 516 U.S. 284 (1996). Opinion by Justice Kennedy.

The Supreme Court, in a unanimous opinion, rejected the defendant’s argument that the

Commission’s revised system for calculating LSD sentences under the guidelines (.4 milligrams per

dose) requires reconsideration of the method used to determine statutory minimum sentences. As a

threshold matter, the Court was doubtful that the Commission intended its new methodology to

displace the actual-weight method required by Chapman v. United States, 500 U.S. 453 (1991). 

According to the Court, “principles of stare decisis require that we adhere to our earlier decision.” 

The Court expressed concern about overturning an earlier precedent without intervening statutory

changes casting doubt on the Chapman interpretation of the statute. While the Commission,

entrusted within its sphere to make policy judgments, can abandon one method for what it considers

a better approach, the Court does not have the same latitude to forsake prior interpretations of

statutes.

Koon v. United States, 518 U.S. 81 (1996). Opinion by Justice Kennedy.

The Supreme Court unanimously held that an "appellate court should not review the [district

court's] departure decision de novo, but instead should ask whether the sentencing court abused its

discretion." In applying this standard, the court noted that "[l]ittle turns, however, on whether we

label review of this particular question [of whether a factor is a permissible basis for departure]

abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law

is beyond appellate correction." "The abuse of discretion standard includes review to determine

that the discretion was not guided by erroneous legal conclusions." The court divided, however, in

its determination of whether the district court abused its discretion in relying on the particular

factors in this case. The majority of the court held that the Ninth Circuit erroneously rejected three

of the five downward departure factors relied upon by the district court. The district court properly

based its downward departure on (1) the victim's misconduct in provoking the defendants' excessive

force, §5K2.10; (2) the defendants' susceptibility to abuse in prison; and (3) the "significant burden"

of a federal conviction following a lengthy state trial which had ended in acquittal based on the

same underlying conduct. However, the district court abused its discretion in relying upon the

remaining two factors, low likelihood of recidivism, and the defendants' loss of their law

enforcement careers, because these were already adequately considered by the Commission in
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pg. 6

USSG §§2H1.4 and 4A1.3. The judgment of the Court of Appeals for the Ninth Circuit was affirmed

in part and reversed in part, and the case was remanded for further proceedings.

Melendez v. United States, 518 U.S. 120 (1996). Opinion by Justice Thomas.

The Court ruled that the district court properly concluded that a Government motion under

USSG §5K1.1 requesting a sentence below the applicable guideline range did not authorize the

district court to depart below the lower statutory minimum. A separate government motion pursuant

to 18 U.S.C. § 3553(e) is required in order for a court to depart below a statutory minimum. The

Court rejected the argument that the Sentencing Commission had created a "unitary" motion system

in promulgating the §5K1.1 policy statement. The Court agreed with the Government that "the

relevant parts of the statutes [18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n)] merely charge the

Commission with constraining the district court's discretion in choosing a specific sentence after the

Government moves for a departure below the statutory minimum. Congress did not charge the

Commission with `implementing' §3553(e)'s Government motion requirement, beyond adopting

provisions constraining the district court's discretion regarding the particular sentence selected." 

Justice Thomas was joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, Souter, and

Ginsburg. Justices O'Connor and Breyer joined in Parts I and II of the opinion. Justice Stevens

filed an opinion concurring in the judgment. Justice Breyer, with whom Justice O'Connor joined,

filed an opinion concurring in part and dissenting in part, stating the view that "the Commission had

the power to create a `unitary motion system'." 

United States v. Watts, 519 U.S. 1144 (1997). Per curiam. Concurring opinions by Justices

Breyer and Scalia.

The Supreme Court ruled that “a jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted charge, so long as that conduct has been

proved by a preponderance of the evidence.” The Court granted the Government’s petition pursuant

to Supreme Court Rule 12.4, and issued this per curiam opinion resolving a split in the Circuit

Courts of Appeals by reversing the Ninth Circuit’s holding in United States v. Watts, 67 F.3d 790

(9th Cir. 1995), and United States v. Putra, 78 F.3d 1386 (9th Cir. 1996). Only the Ninth Circuit

had refused to permit consideration of acquitted conduct. The Court held that the guidelines did not

alter the sentencing court’s discretion granted by statute at 18 U.S.C. § 3661, which provides that

“[n]o limitation shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” Citing Witte v. United States, 515

U.S. 389, 402 (1995) (quoting United States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989) (Breyer,

J.) (“very roughly speaking, [relevant conduct] corresponds to those actions and circumstances that

courts typically took into account when sentencing prior to the Guidelines’ enactment.”). The

Supreme Court noted that Guideline §1B1.4 “reflects the policy set forth in 18 U.S.C. § 3661” and

that the commentary to guideline §1B1.3 also provides that “[c]onduct that is not formally charged

or is not an element of the offense of conviction may enter into the determination of the applicable

guideline sentencing range,” and that all acts and omissions that were part of the same course of

conduct or common scheme or plan as the offense of conviction (relevant conduct) must be

considered whether or not the defendant had been convicted of multiple counts. The Ninth Circuit’s

opinions also seemed to be based “on erroneous views of our double jeopardy jurisprudence,” in

asserting that a jury verdict of acquittal “rejects” facts. See Dowling v. United States, 493 U.S.
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pg. 7

342, 349 (1990) (“an acquittal in a criminal case does not preclude the Government from

relitigating an issue when it is presented in a subsequent action governed by a lower standard of

proof"). 

United States v. Gonzales, 520 U.S. 1 (1997). Opinion by Justice O'Connor.

The Supreme Court held that the provisions of 18 U.S.C. § 924(c) mandating an additional

five-year term of imprisonment that "shall [not] . . . run concurrently with any other term of

imprisonment" means any other term of imprisonment, whether it be state or federal. The Court

reversed the decision of the Court of Appeals for the Tenth Circuit, which had delved into

legislative history to support its conclusion that the statute must have been limited to cases involving

prior federal sentences. The Tenth Circuit had split from other circuit courts of appeals which had

addressed the issue. The Supreme Court held that there was no ambiguity in the text of the statute,

and "no basis in the text for limiting §924(c) to federal sentences."

United States v. LaBonte, 520 U.S. 751 (1997). Opinion by Justice Thomas.

The Supreme Court resolved a split among the Courts of Appeals, deciding that Amendment

506, promulgated by the Sentencing Commission, amending commentary to USSG §4B1.1, the career

offender guideline, is "at odds with the plain language of [28 U.S.C.] § 994(h)." In 28 U.S.C.

§ 994(h), Congress directed the Commission to "assure" that prison terms for categories of offenders

who commit a third felony drug offense or crime of violence be sentenced "at or near the maximum

term authorized" by statute. The Supreme Court held that by the language "maximum term

authorized," Congress meant the maximum term available for the offense of conviction, including

any applicable statutory sentencing enhancements. The enhanced penalty, from 20 to 30 years

imprisonment, is brought before the court by the prosecutor by filing a notice under 21 U.S.C.

§ 851(a)(1). The amendment to §4B1.1's commentary at Application Note 2 had provided that the

unenhanced statutory maximum should be used, in part because the unenhanced statutory maximum

"represents the highest possible sentence applicable to all defendants in the category," because

section 851(a)(1) notices are not filed in every applicable case. The Supreme Court responded that

"Congress surely did not establish enhanced penalties for repeat offenders only to have the

Commission render them a virtual nullity." "[T]he phrase `at or near the maximum term authorized'

is unambiguous and requires a court to sentence a career offender `at or near' the `maximum' prison

term available once all relevant statutory sentencing enhancements are taken into account." The

judgment of the First Circuit at 70 F.3d 1396 (1st Cir. 1995) is reversed. The Commission's

amended commentary is at odds with the plain language of statute at 28 U.S.C. § 994(h), and "must

give way." Cf. Stinson v. United States, 508 U.S. 36, 38 (1993) (Guidelines commentary "is

authoritative unless it violates the Constitution or a federal statute").

Almendarez-Torres v. United States, 523 U.S. 224 (1998). Opinion by Justice Breyer. 

In a 5-4 opinion, the Supreme Court resolved a circuit conflict, affirming the Fifth Circuit's

opinion holding that 8 U.S.C. § 1326(b)(2) is a penalty provision which authorizes an enhanced

penalty for a recidivist; it does not define a separate crime. The Fifth Circuit had joined the First,

Third, Fourth, Seventh, Eighth, Tenth, and Eleventh Circuits in holding that subsection (b)(2) is a

penalty provision, in opposition to the Ninth Circuit's opinion that the subsection constituted a

separate crime. Subsection (a) of section 1326 prohibits an alien who once was deported to return

to the United States without special permission, and it authorizes a prison term of up to two years. 
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pg. 8

Subsection (b)(2) authorizes a prison term of up to 20 years for a deported alien under subsection

(a) whose initial deportation “was subsequent to a conviction for commission of an aggravated

felony.” The petitioner pleaded guilty to violating section 1326, admitting that he had unlawfully

returned to the United States following deportation, and that such initial deportation was subsequent

to three convictions for aggravated felonies. Inasmuch as subsection (b)(2) is a penalty provision,

the Government is not required by the Constitution or the statute to charge the earlier aggravated

felony convictions in the indictment.

Edwards v. United States, 523 U.S. 511 (1998). Opinion by Justice Breyer.

The Supreme Court, in a unanimous opinion, affirmed the Seventh Circuit’s opinion that the

sentencing guidelines require the sentencing judge, not the jury, to determine both the amount and

kind of drugs at issue in a drug conspiracy. The defendant had been charged under 18 U.S.C. §§ 841

and 846 with conspiracy to possess with intent to distribute mixtures containing cocaine and cocaine

base (“crack”), and the jury had returned a general verdict which did not specify the object of the

conspiracy. The petitioners argued that the drug statutes and the Constitution required the judge to

assume that the jury had convicted them of a conspiracy involving the lesser object, cocaine. The

Supreme Court stated that it was of no consequence whether the conviction was based solely on

cocaine, because the Guidelines instruct the sentencing judge to sentence a drug conspiracy based on

the offender’s relevant conduct, under USSG §1B1.3. Relevant conduct requires the sentencing

court to base the sentence on not only the conduct which constitutes the offense of conviction, but

also conduct that is “part of the same course of conduct or common scheme or plan as the offense of

conviction.” See USSG §1B1.3(a)(2). The Court noted that the statutory and constitutional claims

were not implicated in this case, inasmuch as the sentences imposed were “within the statutory

limits of a cocaine-only conspiracy.” 

Jones v. United States, 526 U.S. 227 (1999). Opinion by Justice Souter.

In a 5-4 opinion, the Supreme Court held that 18 U.S.C. § 2119, the federal carjacking

statute, establishes three separate offenses, each of which must be charged in the indictment, proven

beyond a reasonable doubt, and submitted to a jury for its verdict. The Court’s decision emphasizes

the features of the carjacking statute that distinguish it from the illegal re-entry statute that was the

focus of Almendarez-Torres v. United States, 523 U.S. 224 (1998). According to the Supreme

Court, the structure of the statute and the legislative history indicate that Congress intended that the

jury determine the facts which control the statutory sentencing range. To hold otherwise would raise

serious constitutional issues.
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pg. 9

Apprendi v. New Jersey, 530 U.S. 466 (2000). Opinion by Justice Stevens.

In a 5-4 decision, the Supreme Court found unconstitutional a New Jersey statute that

increased the maximum penalty of the defendant’s weapon possession offense from 10 to 20 years

based on the trial court’s finding by a preponderance of evidence that the defendant committed a

“hate crime.” “Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 

The Court noted that its opinion in Jones “foreshadowed” its resolution of whether

constitutional protections of due process and rights to notice and jury trial entitled the defendant to

have a jury, not a judge, decide bias beyond a reasonable doubt. The Court rejected the States’s

three primary arguments that (1) the biased purpose was a traditional sentencing factor of motive;

(2) McMillan authorizes a court to find a traditional sentencing factor using a preponderance of

evidence; and (3) under Almendarez-Torres, a judge may sentence beyond the maximum. Merely

labeling a provision a sentencing factor is not dispositive: “The defendant’s intent in committing a

crime is perhaps as close as one might hope to come to a core criminal offense ‘element.’ 

Recognizing that application of the statute could potentially double the defendant’s sentence, the

Court rejected the State’s reliance on McMillan: “When a judge’s finding based on a mere

preponderance of the evidence authorizes an increase in the maximum punishment, it is

appropriately characterized as ‘a tail which wags the dog of the substantive offense.’” In rejecting

the State’s reliance on Almendarez-Torres, the Court distinguished the recidivist provision from the

“biased purpose inquiry, [which] goes precisely to what happened in commission of the offense.” 

The Court further asserted that “there is a vast difference between accepting the validity of a prior

judgment of conviction entered in a proceeding in which the defendant had . . . the right to require

the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required

fact under a lesser standard of proof.” The Court also noted that “it is arguable that AlmendarezTorres was incorrectly decided, and that a logical application of our reasoning today should apply

if the recidivist issue were contested,” but that revisiting that decision was not necessary to resolve

the case.

In a concurring opinion, Justice Thomas, joined by Justice Scalia, asserted that “the

Constitution requires a broader rule than the Court adopts. . . . If a fact is by law the basis for

imposing or increasing punishment–for establishing or increasing the prosecution’s entitlement–it is

an element.” 

Justice O’Connor, joined by the Chief Justice, Justice Kennedy, and Justice Breyer

dissented, finding that the majority’s “increase in maximum penalty rule” is “unsupported by history

and case law” and rests on a “meaningless formalism.” The dissent asserted that the majority was

overruling McMillan, and that as a result there will be a significant impact on state and federal

determinate sentencing schemes. “The actual principle underlying the Court’s decision may be that

any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum

punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a

reasonable doubt. The principle would thus apply not only to schemes . . . under which a factual

determination exposes the defendant to a sentence beyond the prescribed statutory maximum, but

also to all determinate-sentencing schemes in which the length of a defendant’s sentence within the

statutory range turns on specific factual determinations.” 

Buford v. United States, 532 U.S. 59 (2001). Opinion by Justice Breyer.
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pg. 10

This case concerns the standard of review that applies when determining whether an

offender’s prior convictions are consolidated, thus “related,” for the purposes of sentencing. The

defendant pled guilty to armed bank robbery, a crime of violence, but he also had five prior state

convictions, four of which were robberies. The four bank robberies were considered related

because the court found that the robberies had been the subject of a single criminal indictment and

the defendant had pled guilty to all four at the same time in the same court. The fifth conviction was

for a drug crime. The defendant argued that all five priors, including the drug crime, were related

because they were “functionally consolidated,” without the entry of a formal order of consolidation,

because the sentencing judge was the same, and all five cases were sentence at the same time in a

single proceeding. The government disagreed stating that the drug offense was handled by a

different judge, a different state prosecutor, and with a separate judgement. The district court ruled

against the defendant and held that the drug case was unrelated to the robbery cases and had not been

consolidated for sentencing, either formally or functionally. The Seventh Circuit stated that in this

case “the standard of appellate review may be dispositive” and elected to review the district court’s

decision “deferentially” rather than “de novo.” The appellate court affirmed and the defendant

appealed. Held: The U.S. Supreme Court held that the appellate court properly reviewed the

district’s court’s “functional consolidation” decision deferentially in light of the fact-bound nature

of the decision, the comparatively greater expertise of the district court, and the limited value of

uniform Court of Appeals precedent.

United States v. Cotton, 122 S. Ct. 1781 (2002). Opinion by Chief Justice Rehnquist.

The Supreme Court, in a unanimous opinion, held that defects in an indictment do not

automatically require reversal of a conviction or sentence. The respondents were charged with

conspiring to distribute and to possess with intent to distribute a “detectable” amount of powder and

cocaine base. The respondents were later convicted and received a sentence based on the district

court’s drug quantity finding of at least 50 grams of cocaine base. The district court did not sentence

the defendants under 21 U.S.C. § 841(b)(1)(C), which would have provided a statutory maximum

penalty of 20 years, but instead implicated the enhanced penalties of 21 U.S.C. § 841(b) which

provided a sentence up to life imprisonment. Two of the respondents were sentenced to 30 years of

imprisonment, while those remaining received life imprisonment.

The respondents argued on appeal that the court was deprived of jurisdiction because the

indictment was defective due to the omission of a fact that enhanced the statutory maximum. They

further argued that their sentences were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000),

because the issue of drug quantity was neither alleged in the indictment nor before the jury. The

Fourth Circuit reviewed for plain error and held that the district court had no jurisdiction to

sentence based on information not contained in the indictment. The Supreme Court reversed the

holding of the Fourth Circuit and noted that the reasoning of the Fourth Circuit was based on ex

parte Bain, 121 U.S. 1 (1887), a nineteenth century case that addresses the jurisdiction of the courts

to interpret a revised indictment. 

The Court here overruled Bain and held that (1) a defective indictment does not by its nature

deprive a court of jurisdiction, and (2) the omission from a federal indictment of a fact that enhances

the statutory maximum sentence does not justify a Court of Appeals’ vacating the enhanced sentence,

even though the defendant did not object in the trial court. 

Harris v. United States, 122 S. Ct. 2406 (2002). Opinion by Justice Kennedy. 
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pg. 11

The Supreme Court held, as a matter of statutory construction, that “brandishing” is a

sentencing factor to be determined by the judge. This case represents the Court’s continued effort in

distinguishing between offense elements and sentencing enhancements. In reaching its holding, the

Court reiterated that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), accords

with its prior decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). In Apprendi, the Court

stated that any fact, other than a prior conviction, that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 

Apprendi, 530 U.S. at 490. McMillan established that statutory provisions that subject defendants

to increased mandatory minimum penalties are sentencing factors that may be determined by the

sentencing judge through a preponderance of the evidence. McMillan, 477 U.S. at 91. 

Defendant Harris was arrested for selling illegal narcotics out of his pawnshop with an

unconcealed semiautomatic pistol at his side. He was charged with violating federal drug and

firearm laws, including 18 U.S.C. § 924(c). In drafting the indictment, the Government proceeded

on the assumption that § 924(c)(1)(A) sets forth a single crime and that brandishing is a sentencing

factor, to be determined by the judge. Thus, brandishing was not charged in the indictment. Harris,

122 S. Ct. at 2410-11. Harris was found guilty after a bench trial. The presentence report

recommended a seven-year minimum sentence because he had brandished the firearm. The district

court agreed and sentenced Harris accordingly and the Fourth Circuit affirmed. Id.

The Supreme Court first considered the statutory construction of 18 U.S.C. § 924(c) which

begins with a principal paragraph listing the basic elements of the offense of carrying or using a gun

during and in relation to a violent crime or drug offense. The statute then lists subsections that

explain how the defendant shall be sentenced. Finding that this structure sufficiently delineates

between the offense elements and sentencing factors (which traditionally involve special features of

the manner in which the basic crime was perpetrated), the Court held that Congress did not intend

brandishing to be an offense element. Id. at 2412. 

After examining several important recent decisions, the Court ultimately concluded that

subjecting defendants to increased mandatory minimum penalties via preponderance of the evidence

does not violate Apprendi. The Court noted that Apprendi said that “any fact that would extend a

defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been

considered an aggravated crime . . . by those who framed the Bill of Rights.” Id. at 2414. The

Court concluded that facts increasing the mandatory minimum (but not extending the sentence beyond

the statutory maximum) are different in that “the jury has authorized the judge to impose the minimum

with or without the [fact] finding” at sentencing. Id. 
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pg. 12

Opinions on Related Sentencing Issues

18 U.S.C. § 924(c)

Deal v. United States, 508 U.S. 129 (1993). Opinion by Justice Scalia.

The Supreme Court, in a 6-3 opinion, upheld the defendant’s sentence under 18 U.S.C.

§ 924(c) to a five-year prison term for his first conviction, and five 20-year sentences for five

additional section 924(c) convictions, to be served consecutively (105 years total). The defendant

had committed six bank robberies on six different dates, using a gun each time, but was convicted

and sentenced for all of the offenses in one proceeding. The Court was not persuaded by the

defendant’s assertion that the language of section 924(c) requiring a 20-year sentence for a “second

or subsequent conviction” was ambiguous and should be construed under the rule of lenity in his

favor. The court held that the use of the word “conviction” refers to the finding of guilt that

necessarily precedes the entry of a final judgment of conviction. Each subsequent conviction

carried a 20-year term. This is unlike statutes that have been interpreted to impose an enhanced

sentence for “subsequent offenses” only if the subsequent offense was committed after the sentence

for the previous offense had become final. Nor could the rule of lenity be invoked based on the total

length of the sentence, which the defendant characterized as “glaringly unjust.” Whether the

defendant was convicted of six counts in one proceeding, or in six separate trials, the result

mandated by the statute would be a 105-year total sentence. 

Smith v. United States, 508 U.S. 223 (1993). Opinion by Justice O'Connor.

The court held that the exchange or barter of a gun for illegal drugs constitutes "use" of a

firearm for purposes of the provisions of 18 U.S.C. § 924(c)(1) which sets penalties for offenses

where a defendant "during and in relation to any crime of violence or drug trafficking crime[,] uses

or carries a firearm." The Supreme Court agreed with the opinion of the Court of Appeals for the

Eleventh Circuit that the plain language of the statute "imposes no requirement that the firearm be

used as a weapon." Rather, any use of the weapon to in any way facilitate the commission of the

offense is sufficient. United States v. Smith, 957 F.2d 835, 837 (11th Cir. 1992). In United States

v. Harris, 959 F.2d 246, 261-62 (per curiam) (D.C. Cir.), cert. denied, 113 S. Ct. 362 (1992), the

Court of Appeals for the District of Columbia Circuit so held, but the Court of Appeals for the Ninth

Circuit in United States v. Phelps, 877 F.2d 28 (1989), held that trading the gun for drugs could not

constitute "use," and the Supreme Court decided this issue to resolve the conflict among the circuits.

Bailey v. United States, 516 U.S. 137 (1995). Opinion by Justice O’Connor.

The Supreme Court, in a unanimous opinion, held that 18 U.S.C. § 924(c)(1) “requires

evidence sufficient to show an active employment of the firearm by the defendant, a use that makes

the firearm an operative factor in relation to the predicate offense.” According to the Court, the term

“use” connotes more than mere possession or storage of a firearm by a person who commits a drug

offense.
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pg. 13

United States v. Gonzales, 520 U.S. 1 (1997). Opinion by Justice O’Conner.

The Supreme Court held that the plain language of 18 U.S.C. § 924(c) requires a federal

district court to direct that the five-year sentence run consecutive with a state or federal prison term. 

The defendants were convicted in New Mexico state court and sentenced to prison terms on state

charges arising from the use of guns by two of the defendants to hold up undercover police officers

during a drug sting operation. After they began to serve their state sentences, the defendants were

convicted of drug charges and of using firearms during their crimes in violation of § 924(c). The

district court directed that the 60-month sentence required under § 924(c) to run consecutive to the

federal and state sentence. The Tenth Circuit reversed, holding that the firearm sentences should

have run concurrently with the state prison terms. The Supreme Court reversed the Tenth Circuit,

holding that § 924(c)’s plain language forbids concurrent sentence. Section 924(c) states: “the

sentence . . . under this subsection [shall not] run concurrently with any other term of imprisonment.” 

The Court added that the word “any” has an expansive meaning that is not limited to federal

sentences, and so must be interpreted as referring to all “terms of imprisonment,” including those

imposed by state courts. Thus, the firearm sentence must be consecutive to the state sentences. 

Muscarello v. United States, 524 U.S. 125 (1998). Opinion by Justice Breyer.

The Supreme Court held that the phrase “carries a firearm” in 18 U.S.C. § 924(c) applies to

a person who knowingly possesses and conveys a firearm in a vehicle—including in a locked glove

compartment or in the trunk of the car—in relation to a drug trafficking offense. In affirming the

decisions of the First and Fifth Circuits, the Court noted that the Federal Circuit Courts of Appeals

have unanimously concluded that the word “carry” “is not limited to the carrying of weapons

directly on the person but can include their carriage in a car.” The Court examined the legal

question of whether Congress intended to limit the scope of the word “carry” to instances in which a

gun is carried “on the person,” and concluded that “neither the statute’s basic purpose nor its

legislative history support circumscribing the scope of the word ‘carry’ by applying an ‘on the

person’ limitation.” The Court addressed the dissent’s argument that the rule of lenity should be

applied because there is ambiguity in the statute. In disagreeing with the dissent, the majority noted

that for the rule of lenity to apply, a court must conclude that there is “grievous ambiguity or

uncertainty” in the statute, such that the court could make “no more than a guess as to what Congress

intended.” 

Castillo v. United States, 120 S. Ct. 2090 (2000). Opinion by Justice Breyer.

The Supreme Court held that a statute prohibiting the use or carrying of a “firearm” in

relation to a crime of violence that subsequently increased the penalty when the weapon used or

carried was a “machinegun,” used the word “machinegun” and similar words to state an element of

a separate, aggravated crime. The Court stated that the statute’s structure strongly favored the “new

crime” interpretation. The Court further stated that the structure of the statute seems to suggest that

the difference between the act of using or carrying a “firearm” and the act of using or carrying a

“machinegun” is both substantive and substantial—a conclusion that supports a “separate crime”

interpretation. Finally, the Court determined that the length and severity of an added mandatory

sentence that turns on the presence or absence of a “machinegun” (or any of the other listed firearm
1

Id.

2

526 U.S. 227, 119 S. Ct. 1215 (1999) (provisions of carjacking statute that established higher penalties

to be imposed when offense resulted in serious bodily injury or death set forth additional elements of the

offense, not mere sentencing considerations).

3

523 U.S. 224, 118 S. Ct. 1219 (1998)(recidivism treated merely as a sentencing factor rather than as an

element of the offense).

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pg. 14

types) weighs in favor of treating such offense-related words as referring to an element.1 The Court

noted that these considerations make this a stronger “separate crime” case than either United States

v. Jones2 or United States v. Almandarez-Torres3—cases in which the Court was closely divided

as to Congress’s likely intent. The Court concluded that Congress intended the firearm type-related

words used in § 924(c)(1) to refer to an element of a separate, aggravated crime.

Fed. R. Crim. P. 16(a)(1)(C) — Selective Prosecution

United States v. Armstrong, 517 U.S. 456 (1996). Opinion by Chief Justice Rehnquist.

The defendants moved for discovery or dismissal of the indictment, asserting that they were

singled out for prosecution under the much more stringent statutes and sentencing guidelines in

Federal Court on crack and firearms violations because they are black. In support of their motion,

they offered an affidavit from a paralegal in the Office of the Public Defender stating that the

defendant was black in every one of the cases prosecuted to completion during 1991 under

21 U.S.C. §§ 841 and 846. The district court granted the discovery motion, and upon the

Government’s notice that it would not comply, dismissed the case. The Supreme Court held that

Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure “authorizes defendants to examine

Government documents material to the preparation of their defense against the Government’s casein-chief, but not to the preparation of selective prosecution claims.” To meet the threshold showing

of materiality necessary to obtain such discovery, the defendant must “produce some evidence of

differential treatment of similarly situated members of other races or protected classes.” “A

selective prosecution claim asks a court to exercise judicial power over a ‘special province’ of the

Executive.” Heckler v. Chaney, 470 U.S. 821, 832 (1985). Because the Attorney General and

United States Attorneys have been designated by statute as the President’s delegates to help him

discharge his constitutional duty to see that “the Laws be faithfully executed,” they have broad

discretion to enforce federal criminal laws. There is a strong presumption of regularity supporting a

prosecutor’s decisions, and a claimant of selective prosecution “must demonstrate that the federal

prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory

purpose.’” “The justifications for a rigorous standard for the elements of a selective-prosecution

claim thus require a correspondingly rigorous standard for discovery in aid of such claim.”
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pg. 15

Fifth Amendment

Mitchell v. United States, 526 U.S. 314 (1999). Opinion by Justice Kennedy.

The Supreme Court, in a 5-4 decision, held that a defendant could plead guilty, assert the

privilege against self-incrimination at the sentencing hearing, and not have a judge draw an adverse

inference from the defendant’s sentence. The defendant had refused to testify at a sentencing hearing

about her involvement in a cocaine conspiracy. The judge sentenced the defendant to ten years’

imprisonment, stating that he drew a negative inference from the defendant’s refusal to discuss the

details of the crime. The Third Circuit affirmed the district court’s decision, but the Supreme Court

reversed. The Supreme Court held that neither the defendant’s guilty plea nor her statements at a

plea colloquy functioned as a waiver of her right to remain silent at sentencing. Furthermore, the 

Court held that the defendant should have been allowed to remain silent without it being held against

her. The Court relied on Griffin v. California, 380 U.S. 609 (1995), in which the Court held that it

was constitutionally impermissible for the prosecutor or judge to comment on a criminal defendant’s

refusal to testify. The majority concluded that there is no reason not to apply this rule to sentencing

hearings. 

Supervised Release

United States v. Johnson, 120 S. Ct. 1114 (2000). Opinion by Justice Kennedy. 

The Supreme Court, in a unanimous decision, held that under 18 U.S.C. § 3624(e), a

supervised release term does not commence until an individual “is released from imprisonment.”

Therefore, the length of supervised release is not reduced by excess time served in prison. The

defendant had two of his convictions declared invalid, pursuant to Bailey v. United States, 516 U.S.

137 (1995), and had served 24 months extra prison time. The defendant was released from prison,

but a three-year term of supervised release was yet to be served on the remaining convictions. The

defendant filed a motion to reduce his supervised release term by the amount of extra prison time he

served. The district court denied the relief, explaining that supervised release commenced upon

respondent’s actual release from incarceration, not before. The Sixth Circuit reversed and held that

his supervised release term commenced not on the day he left prison, but when his lawful term of

imprisonment expired. The Supreme Court, in its decision to reverse the Sixth Circuit, resolved a

circuit split over whether the excess prison time should be credited to the supervised release term. 

Compare United States v. Blake, 88 F.3d 824 (9th Cir. 1996) (supervised release commences on

date defendants should have been released, not dates of actual release) with United States v.

Jeanes, 150 F.3d 483 (5th Cir. 1998) (supervised release cannot run during any period of

imprisonment); United States v. Joseph, 109 F.3d 34 (1st Cir. 1997)(same); United States v.

Douglas, 88 F.3d 533 (8th Cir. 1996)(same). The Supreme Court examined the text of § 3624(e)

which states: “[t]he term of supervised release commences on the day the person is released from

imprisonment.” The Court concluded that the ordinary commonsense meaning of release is to be

freed from confinement. The Court found additional support in 18 U.S.C. § 3583(a) which

authorizes the imposition of a “term of supervised release after imprisonment.” Furthermore, the

objectives of supervised release would be unfulfilled if excess prison time were to offset and

reduce terms of supervised release. Congress intended supervised release to assist individuals in

their transition to community life. 
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pg. 16

United States v. Johnson, 120 S. Ct. 1795 (2000). Opinion by Justice Souter.

The Supreme Court resolved a split in the circuits by holding that post-revocation penalties

relate to the original offense, and under the Ex Post Facto Clause, a law “burdening private

interests” cannot be applied to a defendant whose original offense occurred before the effective date

of the statute. Compare United States v. Johnson, 181 F.3d 105 (6th Cir. 1999) (unpublished);

United States v. Sandoval, 69 F.3d 531 (1st Cir.)(unpublished), cert. denied, 519 U.S. 821 (1996);

United States v. St. John, 92 F.3d 761 (8th Cir. 1996) (no ex post facto violation in applying

§ 3583(h) to a defendant whose offense occurred before date statute enacted) with United States v.

Dozier, 119 F.3d 239 (3d Cir. 1997); United States v. Lominac, 146 F.3d 308 (4th Cir. 1998);

United States v. Eske, 189 F.3d 536 (7th Cir. 1999), United States v. Collins, 118 F.3d 1394 (9th

Cir. 1997); and United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994) (because revocation penalties

punish the original offense, retroactive application of § 3583(h) violates Ex Post Facto Clause). 

Absent a clear indication by Congress that a statute applies retroactively, a statute takes effect the

day it is enacted. 

In the case below, the Sixth Circuit held that application of § 3583(h) (explicitly authorizing

reimposition of supervised release upon revocation of supervised release) did not violate the Ex

Post Facto Clause even though the defendant’s original offense occurred in 1993, a year before the

statute was enacted. The lower court held that revocation penalties punish a defendant for the

conduct leading to the revocation, not the original offense. Thus, because the statute was enacted

before the defendant violated his supervised release, there was no ex post facto violation. United

States v. Johnson, 181 F.3d 105 (6th Cir. 1999). The government disavowed the position taken by

the lower court of appeal, and “wisely so” opined the Supreme Court “in view of the serious

constitutional questions that would be raised by construing revocation and reimprisonment as

punishment for the violation of the conditions of supervised release.” Johnson, 120 S. Ct. at 1800.

In addition to making the determination that ex post facto analysis for revocation conduct

relates to the date of the original offense, the Supreme Court found that no ex post facto analysis

was necessary in the defendant’s case because Congress gave no indication that § 3583(h) applied

retroactively. The statute could not be applied to the defendant because it did not become effective

until after the defendant committed the original offense. Nevertheless, the version of § 3583(e)(3) in

effect at the time of the original offense authorized a court to reimpose a term of supervised release

upon revocation. Congress’s unconventional use of the term “revoke” rather than “terminate” would

not preclude additional supervised release, and this reading is consistent with congressional

sentencing policy. 

The Supreme Court’s finding that the pre-Crime Bill version of § 3583(e)(3) authorizes

supervised release as part of a revocation sentence resolved another split in the Circuits. The

Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits held that

§ 3583(e)(3) did not authorize a court to impose an additional term of supervised release following

revocation and imprisonment. The First and Eighth Circuits held that § 3583(e)(3) did grant a court

such authority. See Johnson, 120 S. Ct. at 1800 (n. 2) (2000)(citing cases).