SUPREME COURT CASES

ON SENTENCING ISSUES

Prepared by

the Office of General Counsel

United States Sentencing Commission

April 2007

 

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

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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

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

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

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

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) ..................................3

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

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

Custis v. United States, 511 U.S. 485 (1994) ..................................3

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

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

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

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

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

Neal v. United States, 516 U.S. 284 (1996) ....................................6

United States v. Gonzales, 520 U.S. 1 (1997) ..................................6

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

United States v. Watts, 519 U.S. 1144 (1997). Per curiam .......................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, 535 U.S. 625 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harris v. United States, 536 U.S. 545 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Booker, 543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

OPINIONS ON RELATED SENTENCING ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

18 U.S.C. § 924(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Deal v. United States, 508 U.S. 129 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smith v. United States, 508 U.S. 223 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Bailey v. United States, 516 U.S. 137 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Gonzales, 520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Muscarello v. United States, 524 U.S. 125 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Castillo v. United States, 530 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Leocal v. Ashcroft, 543 U.S. 1 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Page

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

United States v. Armstrong, 517 U.S. 456 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mitchell v. United States, 526 U.S. 314 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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

Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Blakely v. Washington, 542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Schriro v. Summerlin, 542 U.S. 348 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Shepard v. United States, 544 U.S. 13 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Booker, 543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Washington v. Recuenco, 126 S.Ct. 2546 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Cunningham v. California, 127 S.Ct. 856 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

James v. United States, 127 S.Ct. 1586 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Supervised Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Johnson, 529 U.S. 53 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Johnson, 529 U.S. 694 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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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 decision, 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.

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.

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

The Supreme Court, in a 7-2 decision, 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
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unconstitutionally vague.

Wade v. United States, 504 U.S. 181 (1992). Opinion by Justice Souter.

The Supreme Court, in a unanimous decision, 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 sections 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.”

Williams v. United States, 503 U.S. 193 (1992). Opinion by Justice O'Connor.

The Supreme Court, in a 7-2 decision, 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 section 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, in an 8-1 decision, 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 section 3553(b).” The Court rejected the government's argument that the term “authorized”

in section 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
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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 decision, 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 section 3585(b) at the sentencing hearing. Although section

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 section 3585(b) that it was likely

“that the former reference to the Attorney General was simply lost in the shuffle.”

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

The Supreme Court, in a unanimous decision, 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

felon-in-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. 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.” 

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
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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, in a 6-3 decision, held that “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).

United States v. Granderson, 511 U.S. 39 (1994). Opinion by Justice Ginsburg.

The Supreme Court, in a plurality decision (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.

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
1

The Commission addressed the effect of the Prosecutorial Remedies and Other Tools to

end the Exploitation of Children Today Act of 2003 (the ‘PROTECT Act,’ Public Law 108-21)

on the Koon decision in Amendment 651, effective November 1, 2003. Various circuits have

also addressed the effect of the PROTECT Act on the Koon decision. SeeUnited States v. Stultz,

356 F.3d 261 (2d Cir. 2004); United States v. Griffith, 344 F.3d 714 (7th Cir. 2003); United

States v. Archambault, 344 F.3d 732 (8th Cir. 2003); United States v. Clough, 360 F.3d 967 (9th

Cir. 2004).

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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).”

Koon v. United States, 518 U.S. 81 (1996).1

 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.
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pg. 6

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

The Supreme Court, in a 7-2 decision, held 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. 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. The Court noted that 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 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.’” 

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

The Supreme Court, in a unanimous decision, 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.

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

The Supreme Court, in a 7-2 decision, 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 section 924(c) to federal sentences.”
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United States v. LaBonte, 520 U.S. 751 (1997). Opinion by Justice Thomas.

The Supreme Court, in a 6-3 decision, 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”).

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
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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 lower standard of proof”). 

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

In a 5-4 decision, 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. 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 decision, 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 decision, 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,
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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.

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

Almendarez-Torres 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
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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.

The Supreme Court, in a unanimous decision, held that the appellate court properly

reviewed the district’s court’s “functional consolidation” decision deferentially in light of the factbound nature of the decision, the comparatively greater expertise of the district court, and the

limited value of uniform Court of Appeals precedent. The Court reviewed 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 pleaded 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 pleaded 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. 

United States v. Cotton, 535 U.S. 625 (2002). Opinion by Chief Justice Rehnquist.

The Supreme Court, in a unanimous decision, 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
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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, 536 U.S. 545 (2002). Opinion by Justice Kennedy. 

The Supreme Court, in a 5-4 decision, held that 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 section 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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United States v. Booker, 543 U.S. 220 (2005). Opinion by Justice Stevens.

The Supreme Court, in a 5-4 decision, held that any fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt. “The Sixth Amendment, as construed in Blakely, does apply to

the Sentencing Guidelines.” A separate majority determined that the remedy was to excise two

provisions of the Sentencing Reform Act, rendering the Federal Sentencing Guidelines advisory. .

Defendant Booker was convicted of possession with intent to distribute cocaine. The

defendant’s criminal history and drug quantity resulted in a recommended guidelines range of 210

to 262 months. The sentencing judge later found, by a preponderance of the evidence, that the

defendant possessed a greater amount than the jury found and increased the defendant’s sentence. 

Booker appealed arguing that the sentence enhancement violated his Sixth Amendment right to a

jury trial because it permitted the judge to find facts not admitted by the defendant nor found by

the jury. The Seventh Circuit held that the sentence enhancement violated the Sixth Amendment

because it limited Booker’s right to have a jury find facts. The court affirmed the conviction but

overturned the sentence and ruled that the Guidelines violated the Sixth Amendment in cases

where they limit the defendant’s right to a jury trial.

The Government raised two issues before the Supreme Court to determine “whether the

Apprendi line of cases applies to the Sentencing Guidelines and, if so, what portions of the

guidelines remain in effect.” The Court noted that in Apprendi it expressly declined to consider

the Guidelines because a statute, not guidelines, was considered in that case. However in Blakely

the Court stated that “there was no distinction of the constitutional significance between the

federal sentencing guidelines and the Washington procedures at issue.” “The availability of a

departure in specified circumstances does not avoid the constitutional issue, just as it did not in

Blakely itself.” The Court rejected the government’s argument that there would only be a Sixth

Amendment violation if the final sentence exceeded the applicable statutory maximum for the

offense. The Court concluded that application of the Federal Sentencing Guidelines violated the

Sixth Amendment. Having rejected that argument, the Court turned its attention to answering the

question of remedy “by finding the provision of the federal sentencing statute that makes the

Guidelines mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp.2004), and incompatible with today’s

constitutional holding.” 

In a separate opinion by Justice Breyer, joined by Chief Justice Rehnquist, Justice

O’Connor, Justice Kennedy, and Justice Ginsberg, the Court concluded , that “the two provisions

of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines

mandatory must be invalidated in order to allow the statute to operate in a manner consistent with

congressional intent.” The Court concluded that 18 U.S.C.A. § 3553(b)(1) and 3742(e), which

depend upon the Guidelines’ mandatory nature, must be severed and excised. “So modified, the

Federal Sentencing Reform Act of 1984..., makes the Guidelines effectively advisory.” With this

modification, the sentencing courts would be required to consider Guidelines ranges, but also be

permitted to tailor the sentence in light of other statutory concerns.

Four dissenting opinions (dissenting in part) were filed. Justice Stevens dissented in part,

joined by Justice Souter and Justice Scalia, who joined except for Part III and footnote 17 of the

dissenting opinion. Justice Stevens addressed the Court’s decision to excise and sever the two

statutory provisions which made the application of the Guidelines mandatory. Justice Stevens
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asserted that the Court’s decision to do so represented a policy choice that Congress had

considered and decisively rejected. “While it is perfectly clear that Congress has ample power to

repeal these two statutory provisions if it so desires, this Court should not make that choice on

Congress’ behalf.” Justice Stevens recognized the Court’s action as an “extraordinary exercise of

authority” that violated “the tradition of judicial restraint that has heretofore limited our power to

overturn validly enacted statutes.”

Justice Scalia wrote a dissent, dissenting in part to the excision of the provision governing

appellate review of sentences, 18 U.S.C. 3742(e), which had, as its sole purpose, enabling the

appellate courts to enforce conformity with the Guidelines. Justice Scalia asserted that “if the

Guidelines are no longer binding, one would think that the provision designed to ensure

compliance with them would, in its totality, be inoperative.” 

Justice Thomas’s dissent concluded that the presumption of severability had not been

overcome in Booker. According to Justice Thomas, the question remains “whether the

unconstitutional application of certain statutory provisions and guidelines applied to Booker are

severable from the constitutional applications of the same provisions to other defendants.”

Justice Breyer wrote a dissent, joined by Chief Justice Rehnquist, Justice O’Connor, and

Justice Kennedy, disagreeing with the Court’s conclusion requiring a jury, not a judge, to find

sentencing facts. Justice Breyer stated that he found “nothing in the Sixth Amendment that

forbids a sentencing judge to determine (as judges at sentencing have traditionally determined) the

manner or way in which the offender carried out the crime of which he was convicted.” “The

upshot is that the Court’s Sixth Amendment decisions – Apprendi, Blakely, and today’s – deprive

Congress and state legislatures of authority that is constitutionally theirs.”

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 decision, 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. 
2

In response to the Supreme Court’s decision in Bailey, Congress amended 18 U.S.C. §

924(c) so that it would apply when a defendant merely "possesses" a firearm “in furtherance of”

a drug trafficking crime. See Act of Nov. 13, 1998, Public Law 105-386, § 1(a), 112 Stat. 3469

(amending 18 U.S.C. § 924). This issue was also addressed by the Commission. See

“Sentencing for the Possession or Use of Firearms During a Crime: Possible Commission

Responses to Public Law No. 105-386 and Other Issues Pertaining to 18 U.S.C. § 924(c)”

(January 6, 2000). This report may be viewed on the Commission’s website at:

http://www.ussc.gov/research.htm.

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

The Supreme Court, in a 6-3 decision, 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).2

 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. Gonzales, 520 U.S. 1 (1997). Opinion by Justice O’Connor.

The Supreme Court, in a 7-2 decision, 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 section 924(c). The district court directed that the 60-month sentence

required under section 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 section 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
3

Id.

4

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).

5

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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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, in a 5-4 decision, 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, 530 U.S. 120 (2000). Opinion by Justice Breyer.

The Supreme Court, in an 8-1 decision, 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 types) weighs in favor of treating such offense-related words as

referring to an element.3

 The Court noted that these considerations make this a stronger “separate

crime” case than either United States v. Jones4

 or United States v. Almendarez-Torres5—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 section 924(c)(1) to refer to an element
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of a separate, aggravated crime.

Leocal v. Ashcroft, 543 U.S. 1 (2004). Opinion by Chief Justice Rehnquist.

In this unanimous opinion the Supreme Court reversed the Eleventh Circuit’s decision in 

Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999) which held that a conviction

under the Florida DUI statute qualified as a crime of violence. In doing so, the Court resolved a

split among the circuits on the question whether state DUI offenses similar to Florida’s, which

either require only a showing of negligence or do not have a mens rea requirement, can qualify as

a crime of violence. The petitioner, a Haitian citizen, was a lawful permanent resident of the

United States convicted under Florida law of DUI and causing serious bodily injury. He was

ordered deported after his DUI conviction was classified as a “crime of violence” under 18 U.S.C.

§ 16 and therefore deemed an “aggravated felony” under the Immigration and Nationality Act

(INA). The Supreme Court disagreed. “Many states have enacted similar statutes, criminalizing

DUI causing serious bodily injury or death without requiring proof of any mental state, or, in some

states, appearing to require only proof that the person acted negligently in operating the vehicle.” 

“The critical aspect of § 16(a) is that a crime of violence is one involving the “use... of physical

force against the person or property of another.” “The key phrase in § 16(a) – the ‘use..of

physical force against the person or property of another’ – most naturally suggests a higher degree

of intent than negligent or merely accidental conduct.” The Court concluded that petitioner’s DUI

offense, a third-degree felony, did not require proof of any particular mental state and thus would

not qualify as a “crime of violence” under § 16(a) or (b). However the Court did conclude that an

underlying offense requiring proof of a reckless use of force would qualify as a crime of violence

under 18 U.S.C. § 16.

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 Supreme Court, in an 8-1 decision, 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 case-in-chief, but not to the preparation of

selective prosecution claims.” 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. 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
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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.”

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. 

Sixth Amendment

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

Ring v. Arizona, 536 U.S. 584 (2002). Opinion by Justice Ginsberg.

The Supreme Court, in a 7-2 decision, following Apprendi v. New Jersey, 530 U.S. 466

(2000), held that the Sixth Amendment entitles defendants in capital cases to a jury determination

of any aggravating factors that increase their maximum punishment from life imprisonment to

death. The Court overruled its prior decision in Walton v. Arizona, 497 U.S. 639 (1990), which

had upheld the Arizona state capital sentencing scheme. In Ring, the jury found the defendant

guilty of first-degree felony murder. The sentencing judge then conducted a sentencing hearing

and found the existence of aggravating factors beyond a reasonable doubt, and sentenced the

defendant to death. The Supreme Court noted that the defendant could not receive the death

penalty unless the court found the existence of at least one aggravating factor beyond a reasonable

doubt; therefore, such a finding increases the maximum punishment from life imprisonment to

death. The Court held that, because Arizona’s enumerated aggravating factors operate as the

"functional equivalent of an element of a greater offense," the Sixth Amendment requires that they

be found by a jury.

Justice Scalia filed a concurring opinion, joined by Justice Thomas. Justice Scalia makes

the point that he never agreed with the line of cases beginning with Furman v. Georgia, 408 U.S.

238 (1972), that invalidated the death penalty and caused states to enact death penalty schemes
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with aggravating factors. His concurrence here is based on the holding of Apprendi that the jury

must find facts that are used to increase the sentence beyond what is authorized by the jury’s

verdict. 

Justice Kennedy filed a brief concurrence noting that he still believes Apprendi was

wrongly decided, but that Apprendi and Walton cannot stand together. Thus, Justice Kennedy

joins in the majority holding.

Justice Breyer filed an opinion concurring in the judgment but not the opinion of the

majority. Justice Breyer concurs because he believes that jury sentencing in capital cases is

mandated by the Eighth Amendment and not by the Sixth Amendment analysis of the majority

(Justice Breyer dissented in Apprendi). Justice Breyer speaks of the continued difficulty of

justifying capital punishment and concludes that the "danger of unwarranted imposition of the

penalty cannot be avoided" unless a jury makes the determination.

Justice O’Connor, joined by Chief Justice Rehnquist, filed a dissenting opinion. Justice

O’Connor states that the decision in Apprendi "was a serious mistake." Justice O’Connor does not

agree that the Constitution requires that any fact that increases the maximum penalty must be

treated as an element and found by a jury. Justice O’Connor speaks of the increase in habeas

filings and the disruption of the criminal justice system caused by Apprendi.

Blakely v. Washington, 542 U.S. 296 (2004). Opinion by Justice Scalia.

The Supreme Court, in a 5-4 decision, held that the defendant’s sentence violated his Sixth

Amendment right to a jury trial, because the sentencing judge increased his sentence above the

prescribed guideline range based on an aggravating factor found by the judge and not admitted by

the defendant in his guilty plea. The State of Washington charged defendant Ralph Blakely with

first-degree kidnaping. Blakely pleaded guilty to second-degree kidnaping for which the statutory

maximum sentence was ten years of imprisonment. Under the state’s sentencing guidelines, the

“standard sentencing range”or presumptive sentence for the kidnaping charge was 49 to 53

months. Under the Washington guidelines, the sentencing court must impose a sentence within

the standard sentencing range, unless the court finds aggravating or mitigating circumstances by a

preponderance of the evidence that justify an “exceptional sentence.” After conducting a

sentencing hearing, the judge found that Blakely acted with deliberate cruelty, one of the specified

statutory aggravating factors, and sentenced Blakely to 90 months of imprisonment. The Supreme

Court found that this increase beyond the presumptive range was unconstitutional.

The Court held that any fact, other than a prior conviction, that raises the penalty beyond

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

doubt.” The Court defined “statutory maximum” as the “maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” In other

words, the Court said, “the relevant ‘statutory maximum’ is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may impose without any additional

findings” beyond what the jury found in its verdict or what was admitted by the defendant The

majority did not address the application of the case to the federal sentencing guidelines. See 124

S. Ct. at 2538 n.9.

Three dissenting opinions were filed. Justice O’Connor wrote a dissent joined by Justice

Breyer in its entirety, and by Chief Justice Rehnquist and Justice Kennedy, except as to the section

addressing the possible impact on the federal guidelines. Justice O’Connor warned that the
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majority’s opinion may bring an end to 20 years of sentencing reform. Prior to the enactment of

the Washington guidelines, there was unguided discretion that resulted in racial disparity and a

general lack of uniformity in sentencing. The new system “placed meaningful restraints on

discretion” and eliminated parole. Justice O’Connor noted that the sentencing system sought

uniformity, transparency, and accountability, and that it had largely met those goals. Justice

O’Connor also wrote of the far-reaching impact the decision could have on other states’

sentencing guideline systems and the federal sentencing guidelines. 

Justice Kennedy wrote a brief separate dissent joined by Justice Breyer. Justice Kennedy 

portrays sentencing as a collaborative process between the legislatures and the courts. Justice

Kennedy cites Mistretta v. United States, 488 U.S. 361 (1989), as recognizing that this interchange

among the branches of government “is consistent with the Constitution’s structural protections.” 

Justice Breyer also wrote separately in dissent joined by Justice O’Connor. Justice Breyer

stated that this holding “threatens the fairness of our traditional criminal justice system” and

distorts historical sentencing practices. Justice Breyer concludes that, as a result of this opinion,

the legislatures will have several options for sentencing systems in the future, and he outlines

these approaches. Justice Breyer concludes, however, that these alternative approaches are

problematic because they shift power to the prosecutor, they lack uniformity, or they are too

complex and expensive to implement. Lastly, Justice Breyer questions whether it will be possible

to distinguish the federal sentencing guidelines from the Washington system. 

Schriro v. Summerlin, 542 U.S. 348 (2004). Opinion by Justice Scalia.

The Supreme Court, in a 5-4 decision, held that Ring v. Arizona, 536 U.S. 584 (2002), did

not apply retroactively to death penalty cases already final on direct review, because it was a

procedural rule rather than a substantive rule and because Ring did not announce a watershed rule

of criminal procedure. When the Supreme Court announced Ring, it established a new rule that

applied to all criminal cases still pending on direct review. The Court held that Ring established a

procedural rule because it allocated decisionmaking authority by demanding that a jury rather than

a judge make findings regarding aggravating factors in death penalty cases. However, new rules

of procedure generally do not apply retroactively to cases already final on direct review. The

exception is that "watershed rules of criminal procedure" that implicate the fundamental fairness

and accuracy of the criminal proceeding will be applied retroactively. The Court did not find that

this was a watershed rule because judicial factfinding did not so seriously diminish the accuracy of

the proceeding so at to create an impermissibly large risk of punishing conduct inappropriately.

Justice Breyer filed a dissenting opinion joined by Justices Stevens, Souter, and Ginsberg. 

The dissenters view the right to have jury sentencing in the capital context as both a "fundamental

aspect of constitutional liberty and also significantly more likely to produce an accurate

assessment of whether death is the appropriate sentence." Justice Breyer states that juries are

more capable of making community-based value judgments that are important in death penalty

cases, that retroactivity assures more uniformity among similarly situated defendants, that death is

different so greater accuracy is needed, and that giving this rule retroactive effect would not

inordinately burden the criminal justice system because of the small number of prisoners affected

(approximately 110 persons on death row). 
6

Taylor v. United States, 495 U.S. 575 (1990).

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Shepard v. United States, 544 U.S. 13 (2005). Opinion by Justice Souter.

In Shepard v. United States, the Supreme Court, in a plurality decision (5-1-2), held that a

sentencing court cannot look to police reports in making a “generic burglary” decision under the

Armed Career Criminal Act. 

The ACCA mandated a fifteen-year minimum sentence for any person found to have

committed certain federal firearms violations if that person had three prior convictions for “violent

felonies.” Congress specified that the term “violent felony” included “burglary,” and the Court in

Taylor v. United States6 held that the ACCA's use of the term “burglary” encompasses only

“generic burglary.” A “burglary” was considered a “generic burglary” if three elements were

present: “[i] unlawful or unprivileged entry into, or remaining in, [ii] a building or structure, [iii]

with intent to commit a crime.” In Taylor, the Court stated that a sentencing court, in determining

whether a previous trial-based conviction is for a “generic burglary,” can look to the statutory

definition, charging documents and jury instructions. Taylor, therefore, does not require that

recidivism be proved beyond a reasonable doubt for the purposes of sentencing under the ACCA. 

The Court in Shepard, however, did not expand Taylor to allow a sentencing court to examine the

police record and complaint to determine whether an earlier guilty plea to burglary counts as a

“generic burglary,” and thus considered a “violent felony,” for the purposes of sentencing

pursuant to the ACCA. 

Justice Souter, delivering the opinion of the Court, except as to Part III, concluded that

judicial enquiry under the ACCA, as to whether a guilty plea to burglary is a “violent felony,” “is

limited to the terms of the charging document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information.” In Part III of the plurality

opinion, Justice Souter attempted to distinguish the situation found in Shepard from all other

situations where a jury need not find the factor of recidivism beyond a reasonable doubt. Justice

Souter, joined by Justice Stevens, Justice Scalia, and Justice Ginsburg, explained that the fact of a

prior conviction in the Shepard context “is too far removed from the conclusive significance of a

prior judicial record" because the sentencing judge would have to “make a disputed finding of fact

about what the defendant and the state judge must have understood as the factual basis of the prior

plea.” 

United States v. Booker, 543 U.S. 220 (2005). See p.12. 

Washington v. Recuenco, 126 S.Ct. 2546 (2006). Opinion by Justice Thomas.

In this 7-2 decision, the Supreme Court reversed the Supreme Court of Washington. The

Court held that failure to submit a sentencing factor to the jury is not “structural” error which

always invalidates a conviction. Rather, Blakely violations may be subject to harmless error

review.

Recuenco was convicted of second-degree assault based on the jury's finding that he was

armed with a “deadly weapon.” Rather than requesting the one-year enhancement corresponding

to a finding of the involvement of a deadly weapon, the state sought a mandatory three-year

enhancement because the defendant was armed with a firearm. Under Washington law, a firearm
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qualifies as a deadly weapon, but the jury form did not require the jury to make the specific

finding that a firearm was used. The trial court found that the weapon was a firearm and imposed

the higher penalty. The state conceded before the Washington Supreme Court that a Sixth

Amendment violation occurred under Blakely. The Washington Supreme Court refused to apply

harmless-error analysis to the Blakely error, vacated the sentence, and remanded for sentencing

based on the deadly weapon enhancement.

In reversing the state court, the Court noted that it has repeatedly recognized that

“commission of a constitutional error at trial alone does not entitle a defendant to automatic

reversal. Instead, most constitutional errors can be harmless.”

Cunningham v. California, 127 S.Ct. 856 (2007). Opinion by Justice Ginsburg.

The Supreme Court in a 6-3 opinion struck down California’s Determinate Sentencing

Law (DSL) on grounds that it violated the Sixth Amendment’s jury trial right, as interpreted by

the Supreme Court in the Apprendi line of cases. The specific question presented in the case was:

“Whether California’s Determinate Sentencing Law, by permitting sentencing judges to impose

enhanced sentences based on their determination of facts not found by the jury or admitted by the

defendant, violates the Sixth and Fourteenth Amendments.” The Court concluded that it did,

holding that the relevant stautory maximum for Sixth Amendment purposes under California’s

DSL was the middle term sentence because a judge was required to find no facts beyond the jury’s

verdict to impose it. In so holding, the Court overruled a California Supreme Court case, People

v. Black, 113 P.3d 534 (Cal. 2005), which had determined that the DSL did not violate Blakely.

James v. United States, 127 S.Ct. 1586 (2007). Opinion by Justice Alito.

The Supreme Court in a 5-4 opinion upheld the Eleventh Circuit’s determination that a

conviction for attempted burglary under Florida law is a “violent felony” under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). The issue was whether “overt conduct directed toward

unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is

‘conduct that presents a serious potential risk of physical injury to another.’” The Court said that

“[t]he main risk of burglary arises not from the simple physical act or wrongfully entering onto

another’s property, but rather from the possibility of a face-to-face confrontation between the

burglar and a third party - whether an occupant, a police officer, or a bystander - who comes to

investigate.” Attempted burglary, the Court said, “poses the same kind of risk.” The Court also

noted that, because attempted burglaries that give rise to convictions are typically those that were

interrupted by such a third party, attempted burglaries that are ACCA predicates may actually

pose a greater risk than completed burglaries. The Court concluded: “As long as an offense is of a

type that, by its nature, presents a serious potential risk of injury to another, it satisfies the

requirements of” the ACCA.

Supervised Release

United States v. Johnson, 529 U.S. 53 (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.”
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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

section 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. 

United States v. Johnson, 529 U.S. 694 (2000). Opinion by Justice Souter.

The Supreme Court, in an 8-1 decision, resolved a split in the circuits by holding that postrevocation 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 section 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 section

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 section 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
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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 section 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

section 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 section 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

section 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 section

3583(e)(3) did grant a court such authority. See Johnson, 120 S. Ct. at 1800 (n.2) (2000) (citing

cases).