SUPREME COURT CASES

ON SENTENCING ISSUES

Prepared by

the Office of General Counsel

United States Sentencing Commission

April 30, 1998

Pamela G. Montgomery

Pamela O. Barron

202/273-4520

 

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.
April 30, 1998

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. R.L.C., 503 U.S. 291 (1992) ................................ 2

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

Wade v. United States, 504 U.S. 181 (1992) ................................. 2

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

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

United States v. Granderson, 114 S. Ct. 1259 (1994) ........................... 3

Custis v. United States, 114 S. Ct. 1732 (1994) ............................... 4

Nichols v. United States, 114 S. Ct. 1921 (1994) .............................. 4

Witte v. United States, 515 U.S. 389 (1995) ................................. 4

Neal v. United States, 116 S. Ct. 763 (1996) ................................. 5

Koon v. United States, 116 S. Ct. 2035 (1996) ............................... 5

Melendez v. United States, 116 S. Ct. 2057 (1996) ............................ 6

United States v. Watts, 117 S. Ct. 633 (1997). Per curiam ...................... 6

United States v. Gonzales, 117 S. Ct. 1032 (1997) ............................. 7

United States v. LaBonte, 1997 WL 273644 (U.S. May 27, 1997) ................. 7

Almendarez-Torres v. United States, 1998 WL 126904 (U.S. Mar. 24, 1998) ........ 7

Edwards v. United States, 1998 WL 201395 (U.S. Apr. 28, 1998) ................. 8

Petition for Writ of Certiorari Granted ............................................ 9

Muscarello v. United States, 106 F.3d 636 (5th Cir. 1997), 

cert. granted, 118 S. Ct. 621 (1997) ....................................... 9
April 30, 1998

pg. ii

Opinions on Related Sentencing Issues .......................................... 10

Deal v. United States, 113 S. Ct. 1993 (1993) ............................... 10

Smith v. United States, 113 S. Ct. 2050 (1993) .............................. 10

Bailey v. United States, 116 S. Ct. 501 (1995) ............................... 10

United States v. Armstrong, 116 S. Ct. 1480 (1996) .......................... 11
April 30, 1998

pg. 1

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.
April 30, 1998

pg. 2

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."

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
April 30, 1998

pg. 3

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."

United States v. Granderson, 114 S. Ct. 1259 (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,
April 30, 1998

pg. 4

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, 114 S. Ct. 1732 (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, 114 S. Ct. 1921 (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).

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
April 30, 1998

pg. 5

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, 116 S. Ct. 763 (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, 116 S. Ct. 2035 (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 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.
April 30, 1998

pg. 6

Melendez v. United States, 116 S. Ct. 2057 (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, 117 S. Ct. 633 (1997). Per curiam. Concurring opinions by Justices

Breyer and Scalia. Dissenting opinions by Justices Stevens and Kennedy.

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. 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 
April 30, 1998

pg. 7

lower standard of proof"). 

United States v. Gonzales, 117 S. Ct. 1032 (1997). Opinion by Justice O'Connor. Dissenting

opinions by Justices Stevens and Breyer.

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, 1997 WL 273644 (U.S. May 27, 1997). Opinion by Justice Thomas. 

Dissenting opinion by Justice Breyer, joined by Justices Stevens and Ginsburg.

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 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, 1998 WL 126904 (U.S. Mar. 24, 1998). Opinion by

Justice Breyer. Dissenting opinion by Justice Scalia, joined by Justices Stevens, Souter, and

Ginsburg.

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
April 30, 1998

pg. 8

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. 

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, 1998 WL 201395 (U.S. Apr. 28, 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.” 
April 30, 1998

pg. 9

Petition for Writ of Certiorari Granted

Muscarello v. United States, 106 F.3d 636 (5th Cir. 1997), cert. granted, 118 S. Ct. 621 (1997).

The Court granted certiorari to decide whether 18 U.S.C. § 924(c) is violated when a

defendant knowingly possesses a firearm in a locked glove compartment of a truck, but could not

“readily access” the firearm during the commission of the underlying crime. The Fifth Circuit held

that as a matter of law, a defendant’s knowing possession of a firearm in a motor vehicle used in the

commission of a drug trafficking offense satisfies the definition of “carried” under section 924(c). 

The appellate court added that while the Supreme Court restricted the definition of “using” a firearm

in United States v. Bailey, 116 S. Ct. 501 (1995), the definition of “carrying” remained the same. 
April 30, 1998

pg. 10

Opinions on Related Sentencing Issues

Deal v. United States, 113 S. Ct. 1993 (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 §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, 113 S. Ct. 2050 (1993). Opinion by Justice O'Connor. Concurring

opinion by Justice Blackmun. Dissenting opinion by Justice Scalia, joined by Justices Stevens

and Souter. 

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, 116 S. Ct. 501 (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.

United States v. Armstrong, 116 S. Ct. 1480 (1996). Opinion by Chief Justice Rehnquist

The defendants moved for discovery or dismissal of the indictment, asserting that they were
April 30, 1998

pg. 11

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.”