SUPREME COURT CASES

ON SENTENCING ISSUES

Prepared by

the Office of General Counsel

United States Sentencing Commission

February 2001

Pamela G. Montgomery

Pamela O. Barron

202/502-4520

 

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.
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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, 511 U.S. 39 (1994) ................................ 3

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

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

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

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

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

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

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

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

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

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .......................... 7

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

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

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) ................................ 8
Page

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pg. ii

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

 18 U.S.C. § 924(c) .......................................................... 10

Deal v. United States, 508 U.S. 129 (1993) .................................... 10

Smith v. United States, 508 U.S. 223 (1993) ................................... 10

Bailey v. United States, 516 U.S. 137 (1995) ................................... 10

United States v. Gonzales, 520 U.S. 1 (1997) .................................. 11

Muscarello v. United States, 524 U.S. 125 (1998) ............................... 11

Castillo v. United States,120 S. Ct. 2090 (2000) ................................ 11

 Fed. R. Crim. P. 16(a)(1)(C) — Selective Prosecution ............................... 12

United States v. Armstrong, 517 U.S. 456 (1996) ............................... 12

 Fifth Amendment ............................................................ 13

Mitchell v. United States, 526 U.S. 314 (1999) ................................. 13

 Supervised Release .......................................................... 13

United States v. Johnson, 120 S. Ct. 1114 (2000) ............................... 13

United States v. Johnson,120 S. Ct. 1795 (2000) ................................ 14
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Supreme Court Cases On Sentencing Issues

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

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

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

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

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

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

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

judicial participation is "peculiarly appropriate." The Court also found no fault with the power of the

President to appoint members of the Commission and remove them for cause, holding that neither power

significantly threatened judicial independence.

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

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

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

with the Commission. According to the Supreme Court, "in charging the Commission `periodically [to]

review and revise' the guidelines, Congress necessarily contemplated that the Commission would

periodically review the work of the courts, and would make whatever clarifying revisions to the guidelines

conflicting judicial decisions might suggest." Since the Commission has the authority to "periodically review

and revise" and the "unusual explicit power" to decide whether and to what extent its amendments reducing

sentences will be given retroactive effect, Justice Scalia suggests that the court should be more "restrained

and circumspect" in using its certiorari power to resolve circuit conflicts. The Supreme Court decided not

to address the first issue presented in the case because the Commission had requested public comment on

a change to §1B1.2 which would eliminate the conflict and because the case could be decided on other

grounds.

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

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

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

trafficking in LSD, and that this construction does not violate due process nor is it unconstitutionally vague.

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

The Supreme Court, in a 5-4 decision, held that "before a district court can depart on a ground not

identified as a ground for upward departure either in the presentence report or in a prehearing submission

by the government, Rule 32 requires that the district court give the parties reasonable notice that it is

contemplating such a ruling." In the instant case, the presentence report concluded that there were no

factors warranting a departure. Although neither party objected to the presentence report, the district

court judge announced at the end of the sentencing hearing that he was making an upward departure from

a guideline range of 30-37 months and imposing a sentence of 60 months. The Supreme Court remanded

the case for further proceedings.
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Williams v. United States, 503 U.S. 193 (1992). Opinion by Justice O'Connor.

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

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

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

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

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

can be an incorrect application of the guidelines under 18 U.S.C. § 3742(f)(1). However, a remand is not

automatically required under §3742(f)(1) in order to rectify an incorrect application of the guidelines. The

majority opinion disagreed with the dissenters that the reasonableness standard of 18 U.S.C. § 3742(f)(2)

was the sole provision governing appellate review of departure decisions.

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

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

"the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted

as an adult," refers to the maximum sentence that could be imposed if the juvenile were being sentenced

after application of the sentencing guidelines. The Court's holding does not require plenary application of

the guidelines to juvenile proceedings. According to the Supreme Court, "a sentencing court's concern

with the guidelines goes solely to the upper limit of the proper guideline range as setting the maximum term

for which a juvenile may be committed to official detention, absent circumstances that which would warrant

departure under §3553(b)." The Court rejected the government's argument that the term "authorized" in

§5037(c)(1)(B) means the maximum term of imprisonment provided for in the statute defining the offense. 

Justice O'Connor in the dissenting opinion, joined by Justice Blackmun, stated that the Court should have

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

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

appropriate guidelines for juveniles."

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

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

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

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

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

occur after the defendant begins his sentence. Thus, a district court judge cannot apply §3585(b) at the

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

found that when Congress rewrote 18 U.S.C. § 3568 and changed it to its present form in §3585(b) that it

was likely "that the former reference to the Attorney General was simply lost in the shuffle."

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

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

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

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

defendant merely provided substantial assistance will not entitle a defendant to a remedy or even discovery

or an evidentiary hearing. Nor would additional but generalized allegations of improper motive." In the
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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 governmentmotion 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 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. Granderson, 511 U.S. 39 (1994). Opinion by Justice Ginsburg.

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

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

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

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

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

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

sentence is the maximum of the original guideline range. Granderson, whose original guideline range was

0-6 months, had received a five-year term of probation. Upon revocation for possession of illegal drugs,

the district court sentenced him to one-third of the five years: 20 months incarceration. In reversing, the
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Eleventh Circuit invoked the rule of lenity and held that "original sentence" referred to the original range,

which set the maximum term of imprisonment upon revocation at six months and the minimum at two

months. The opinion of the Court of Appeals for the Eleventh Circuit was affirmed.

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

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

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

collaterally attack the validity of previous state convictions that are used to enhance his sentence under the

Armed Career Criminal Act. The defendant argued that his previous convictions were invalid because of

ineffective assistance of counsel, because his guilty plea was not knowing and intelligently made, and

because he had not been adequately advised of his rights in opting for a "stipulated facts" trial. According

to the Court, "None of these alleged constitutional violations rises to the level of jurisdictional defect

resulting from the failure to appoint counsel at all." The Court refused to extend the right to collaterally

attack a prior conviction used for sentencing enhancement beyond the right to counsel established in

Gideon v. Wainwright, 372 U.S. 335 (1963).

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

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

Constitution, that an uncounseled misdemeanor conviction, valid under Scott [v. Illinois, 440 U.S. 367

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

subsequent conviction." The case arose when the district court assessed one criminal history point against

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

defendant was fined but not imprisoned. The majority of the Court reaffirmed that the Sixth Amendment

right to counsel does not attach to criminal proceedings in which imprisonment is not imposed. The logical

consequence of that holding is that if the conviction is valid, it can be relied on to enhance a subsequent

sentence. According to the Court, reliance on such a conviction is consistent with traditional sentencing

practices of using a lesser standard than that for proving guilt. For example, consistent with due process,

the defendant could have been sentenced more severely based simply on evidence of the conduct

underlying the DUI. The government would only have to prove the conduct by a preponderance of

evidence. Therefore, it must be constitutional to use a prior conviction, where that conduct has been

proven beyond a reasonable doubt. In deciding the case, the Court overruled Baldesar v. Illinois, 446

U.S. 222 (1980).

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

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

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

punishment for that conduct," a second prosecution involving that conduct "does not violate the Double

Jeopardy Clauses' s prohibition against the imposition of multiple punishments for the same offense." The

Court rejected the petitioner's claim that his indictment for cocaine offenses violated the Double Jeopardy

Clause because the cocaine offenses had already been considered as relevant conduct in sentencing for an

earlier marijuana offense. The majority relied on the Court's previous decision in Williams v. Oklahoma,

358 U.S. 576 (1959) specifically rejecting the claim that "double jeopardy principles bar a later
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prosecution or punishment for criminal activity where that criminal activity has been considered at

sentencing for a second crime." The majority further noted that the consideration of relevant conduct

punishes the offender "for the fact that the present offense was carried out in a manner that warrants

increased punishment, not for a different offense (which that related conduct may or may not constitute)."

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

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

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

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

matter, the Court was doubtful that the Commission intended its new methodology to displace the actualweight method required by Chapman v. United States, 500 U.S. 453 (1991). According to the Court,

“principles of stare decisis require that we adhere to our earlier decision.” The Court expressed concern

about overturning an earlier precedent without intervening statutory changes casting doubt on the Chapman

interpretation of the statute. While the Commission, entrusted within its sphere to make policy judgments,

can abandon one method for what it considers a better approach, the Court does not have the same

latitude to forsake prior interpretations of statutes.

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

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

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

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

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

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

appellate correction." "The abuse of discretion standard includes review to determine that the discretion

was not guided by erroneous legal conclusions." The court divided, however, in its determination of

whether the district court abused its discretion in relying on the particular factors in this case. The majority

of the court held that the Ninth Circuit erroneously rejected three of the five downward departure factors

relied upon by the district court. The district court properly based its downward departure on (1) the

victim's misconduct in provoking the defendants' excessive force, §5K2.10; (2) the defendants'

susceptibility to abuse in prison; and (3) the "significant burden" of a federal conviction following a lengthy

state trial which had ended in acquittal based on the same underlying conduct. However, the district court

abused its discretion in relying upon the remaining two factors, low likelihood of recidivism, and the

defendants' loss of their law enforcement careers, because these were already adequately considered by

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

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

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

depart below the lower statutory minimum. A separate government motion pursuant to 18 U.S.C.

§ 3553(e) is required in order for a court to depart below a statutory minimum. The Court rejected the

argument that the Sentencing Commission had created a "unitary" motion system in promulgating the

§5K1.1 policy statement. The Court agreed with the Government that "the relevant parts of the statutes

[18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n)] merely charge the Commission with constraining the

district court's discretion in choosing a specific sentence after the Government moves for a departure

below the statutory minimum. Congress did not charge the Commission with `implementing' §3553(e)'s

Government motion requirement, beyond adopting provisions constraining the district court's discretion

regarding the particular sentence selected." Justice Thomas was joined by Chief Justice Rehnquist, and

Justices Scalia, Kennedy, Souter, and Ginsburg. Justices O'Connor and Breyer joined in Parts I and II of

the opinion. Justice Stevens filed an opinion concurring in the judgment. Justice Breyer, with whom

Justice O'Connor joined, filed an opinion concurring in part and dissenting in part, stating the view that "the

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

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

Breyer and Scalia.

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

from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.” The Court granted the Government’s petition pursuant to Supreme

Court Rule 12.4, and issued this per curiam opinion resolving a split in the Circuit Courts of Appeals by

reversing the Ninth Circuit’s holding in United States v. Watts, 67 F.3d 790 (9th Cir. 1995), and United

States v. Putra, 78 F.3d 1386 (9th Cir. 1996). Only the Ninth Circuit had refused to permit consideration

of acquitted conduct. The Court held that the guidelines did not alter the sentencing court’s discretion

granted by statute at 18 U.S.C. § 3661, which provides that “[n]o limitation shall be placed on the

information concerning the background, character, and conduct of a person convicted of an offense which

a court of the United States may receive and consider for the purpose of imposing an appropriate

sentence.” citing Witte v. United States, 515 U.S. 389, 402 (1995) (quoting United States v. Wright, 873

F.2d 437, 441 (1st Cir. 1989) (Breyer, J.) (“very roughly speaking, [relevant conduct] corresponds to

those actions and circumstances that courts typically took into account when sentencing prior to the

Guidelines’ enactment.”). The Supreme Court noted that Guideline §1B1.4 “reflects the policy set forth in

18 U.S.C. § 3661” and that the commentary to guideline §1B1.3 also provides that “[c]onduct that is not

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

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

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

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

seemed to be based “on erroneous views of our double jeopardy jurisprudence,” in asserting that a jury

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

lower standard of proof"). 

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

The Supreme Court held that the provisions of 18 U.S.C. § 924(c) mandating an additional fiveyear term of imprisonment that "shall [not] . . . run concurrently with any other term of imprisonment"

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

the Court of Appeals for the Tenth Circuit, which had delved into legislative history to support its

conclusion that the statute must have been limited to cases involving prior federal sentences. The Tenth

Circuit had split from other circuit courts of appeals which had addressed the issue. The Supreme Court

held that there was no ambiguity in the text of the statute, and "no basis in the text for limiting §924(c) to

federal sentences."

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

The Supreme Court resolved a split among the Courts of Appeals, deciding that Amendment 506,

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

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

directed the Commission to "assure" that prison terms for categories of offenders who commit a third

felony drug offense or crime of violence be sentenced "at or near the maximum term authorized" by statute. 

The Supreme Court held that by the language "maximum term authorized," Congress meant the maximum

term available for the offense of conviction, including any applicable statutory sentencing enhancements. 

The enhanced penalty, from 20 to 30 years imprisonment, is brought before the court by the prosecutor by

filing a notice under 21 U.S.C. § 851(a)(1). The amendment to §4B1.1's commentary at note 2 had

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

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

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

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

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

requires a court to sentence a career offender `at or near' the `maximum' prison term available once all

relevant statutory sentencing enhancements are taken into account." The judgment of the First Circuit at

70 F.3d 1396 (1st Cir. 1995) is reversed. The Commission's amended commentary is at odds with the

plain language of statute at 28 U.S.C. § 994(h), and "must give way." Cf. Stinson v. United States, 508

U.S. 36, 38 (1993) (Guidelines commentary "is authoritative unless it violates the Constitution or a federal

statute").

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

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

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

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

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

opposition to the Ninth Circuit's opinion that the subsection constituted a separate crime. Subsection (a) of

section 1326 prohibits an alien who once was deported to return to the United States without special

permission, and it authorizes a prison term of up to two years. Subsection (b)(2) authorizes a prison term
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of up to 20 years for a deported alien under subsection (a) whose initial deportation “was subsequent to a

conviction for commission of an aggravated felony.” The petitioner pleaded guilty to violating section

1326, admitting that he had unlawfully returned to the United States following deportation, and that such

initial deportation was subsequent to three convictions for aggravated felonies. Inasmuch as subsection

(b)(2) is a penalty provision, the Government is not required by the Constitution or the statute to charge

the earlier aggravated felony convictions in the indictment.

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

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

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

drugs at issue in a drug conspiracy. The defendant had been charged under 18 U.S.C. §§ 841 and 846

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

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

The petitioners argued that the drug statutes and the Constitution required the judge to assume that the jury

had convicted them of a conspiracy involving the lesser object, cocaine. The Supreme Court stated that it

was of no consequence whether the conviction was based solely on cocaine, because the Guidelines

instruct the sentencing judge to sentence a drug conspiracy based on the offender’s relevant conduct,

under USSG §1B1.3. Relevant conduct requires the sentencing court to base the sentence on not only the

conduct which constitutes the offense of conviction, but also conduct that is “part of the same course of

conduct or common scheme or plan as the offense of conviction.” See USSG §1B1.3(a)(2). The Court

noted that the statutory and constitutional claims were not implicated in this case, inasmuch as the

sentences imposed were “within the statutory limits of a cocaine-only conspiracy.” 

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

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

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

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

the carjacking statute that distinguish it from the illegal re-entry statute that was the focus of AlmendarezTorres 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, 120 S. Ct. 2348 (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
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to find a traditional sentencing factor using a preponderance of evidence; and (3) under AlmendarezTorrez, 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 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.” 
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pg. 10

Opinions on Related Sentencing Issues

18 U.S.C. § 924(c)

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

The Supreme Court, in a 6-3 opinion, upheld the defendant’s sentence under 18 U.S.C. § 924(c)

to a five-year prison term for his first conviction, and five 20-year sentences for five additional section

924(c) convictions, to be served consecutively (105 years total). The defendant had committed six bank

robberies on six different dates, using a gun each time, but was convicted and sentenced for all of the

offenses in one proceeding. The Court was not persuaded by the defendant’s assertion that the language

of section 924(c) requiring a 20-year sentence for a “second or subsequent conviction” was ambiguous

and should be construed under the rule of lenity in his favor. The court held that the use of the word

“conviction” refers to the finding of guilt that necessarily precedes the entry of a final judgment of

conviction. Each subsequent conviction carried a 20-year term. This is unlike statutes that have been

interpreted to impose an enhanced sentence for “subsequent offenses” only if the subsequent offense was

committed after the sentence for the previous offense had become final. Nor could the rule of lenity be

invoked based on the total length of the sentence, which the defendant characterized as “glaringly unjust.” 

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

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

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

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

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

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

firearm." The Supreme Court agreed with the opinion of the Court of Appeals for the Eleventh Circuit that

the plain language of the statute "imposes no requirement that the firearm be used as a weapon." Rather,

any use of the weapon to in any way facilitate the commission of the offense is sufficient. United States v.

Smith, 957 F.2d 835, 837 (11th Cir. 1992). In United States v. Harris, 959 F.2d 246, 261-62 (per

curiam) (D.C. Cir.), cert. denied, 113 S. Ct. 362 (1992), the Court of Appeals for the District of

Columbia Circuit so held, but the Court of Appeals for the Ninth Circuit in United States v. Phelps, 877

F.2d 28 (1989), held that trading the gun for drugs could not constitute "use," and the Supreme Court

decided this issue to resolve the conflict among the circuits.

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

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

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

operative factor in relation to the predicate offense.” According to the Court, the term “use” connotes

more than mere possession or storage of a firearm by a person who commits a drug offense.
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pg. 11

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

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

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

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

arising from the use of guns by two of the defendants to hold up undercover police officers during a drug

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

charges and of using firearms during their crimes in violation of § 924(c). The district court directed that

the 60-month sentence required under § 924(c) to run consecutive to the federal and state sentence. The

Tenth Circuit reversed, holding that the firearm sentences should have run concurrently with the state

prison terms. The Supreme Court reversed the Tenth Circuit, holding that § 924(c)’s plain language

forbids concurrent sentence. Section 924(c) states: “the sentence . . . under this subsection [shall not] run

concurrently with any other term of imprisonment.” The Court added that the word “any” has an

expansive meaning that is not limited to federal sentences, and so must be interpreted as referring to all

“terms of imprisonment,” including those imposed by state courts. Thus, the firearm sentence must be

consecutive to the state sentences. 

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

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

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

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

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

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

person but can include their carriage in a car.” The Court examined the legal question of whether

Congress intended to limit the scope of the word “carry” to instances in which a gun is carried “on the

person,” and concluded that “neither the statute’s basic purpose nor its legislative history support

circumscribing the scope of the word ‘carry’ by applying an ‘on the person’ limitation.” The Court

addressed the dissent’s argument that the rule of lenity should be applied because there is ambiguity in the

statute. In disagreeing with the dissent, the majority noted that for the rule of lenity to apply, a court must

conclude that there is “grievous ambiguity or uncertainty” in the statute, such that the court could make “no

more than a guess as to what Congress intended.” 

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

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

crime of violence that subsequently increased the penalty when the weapon used or carried was a

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

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

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

between the act of using or carrying a “firearm” and the act of using or carrying a “machinegun” is both

substantive and substantial – a conclusion that supports a “separate crime” 

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

that turns on the presence or absence of a “machinegun” (or any of the other listed firearm types) weighs in
1

Id.

2

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

imposed when offense resulted in serious bodily injury or death set forth additional elements of the offense, not

mere sentencing considerations).

3

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

the offense).

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pg. 12

favor of treating such offense-related words as referring to an element.1 The Court noted that these

considerations make this a stronger “separate crime” case than either U.S. v. Jones2 or U.S. v.

Almandarez-Torres3 – cases in which the Court was closely divided as to Congress’s likely intent. The

Court concluded that Congress intended the firearm type-related words used in Section 924(c)(1) to refer

to an element of a separate, aggravated crime.

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

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

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

out for prosecution under the much more stringent statutes and sentencing guidelines in Federal Court on

crack and firearms violations because they are black. In support of their motion, they offered an affidavit

from a paralegal in the Office of the Public Defender stating that the defendant was black in every one of

the cases prosecuted to completion during 1991 under 21 U.S.C. §§ 841 and 846. The district court

granted the discovery motion, and upon the Government’s notice that it would not comply, dismissed the

case. The Supreme Court held that Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure

“authorizes defendants to examine Government documents material to the preparation of their defense

against the Government’s case-in-chief, but not to the preparation of selective prosecution claims.” To

meet the threshold showing of materiality necessary to obtain such discovery, the defendant must “produce

some evidence of differential treatment of similarly situated members of other races or protected classes.” 

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

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

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

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

federal criminal laws. There is a strong presumption of regularity supporting a prosecutor’s decisions, and

a claimant of selective prosecution “must demonstrate that the federal prosecutorial policy ‘had a

discriminatory effect and that it was motivated by a discriminatory purpose.’” “The justifications for a

rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous

standard for discovery in aid of such claim.”
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pg. 13

Fifth Amendment

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

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

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

the defendant’s sentence. The defendant had refused to testify at a sentencing hearing about her

involvement in a cocaine conspiracy. The judge sentenced the defendant to ten years’ imprisonment,

stating that he drew a negative inference from the defendant’s refusal to discuss the details of the crime. 

The Third Circuit affirmed the district court’s decision, but the Supreme Court reversed. The Supreme

Court held that neither the defendant’s guilty plea nor her statements at a plea colloquy functioned as a

waiver of her right to remain silent at sentencing. Furthermore, the Court held that the defendant should

have been allowed to remain silent without it being held against her. The Court relied on Griffin v.

California, 380 U.S. 609 (1995), in which the Court held that it was constitutionally impermissible for the

prosecutor or judge to comment on a criminal defendant’s refusal to testify. The majority concluded that

there is no reason not to apply this rule to sentencing hearings. 

Supervised Release

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

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

release term does not commence until an individual “is released from imprisonment.” Therefore, the length

of supervised release is not reduced by excess time served in prison. The defendant had two of his

convictions declared invalid, pursuant to Bailey v. United States, 516 U.S. 137 (1995), and had served 24

months extra prison time. The defendant was released from prison, but a three-year term of supervised

release was yet to be served on the remaining convictions. The defendant filed a motion to reduce his

supervised release term by the amount of extra prison time he served. The district court denied the relief,

explaining that supervised release commenced upon respondent’s actual release from incarceration, not

before. The Sixth Circuit reversed and held that his supervised release term commenced not on the day he

left prison, but when his lawful term of imprisonment expired. The Supreme Court, in its decision to

reverse the Sixth Circuit, resolved a circuit split over whether the excess prison time should be credited to

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

release commences on date defendants should have been released, not dates of actual release) with United

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

imprisonment); United States v. Joseph, 109 F.3d 34 (1st Cir. 1997)(same); United States v. Douglas, 88

F.3d 533 (8th Cir. 1996)(same). The Supreme Court examined the text of § 3624(e) which states: “[t]he

term of supervised release commences on the day the person is released from imprisonment.” The Court

concluded that the ordinary commonsense meaning of release is to be freed from confinement. The Court

found additional support in 18 U.S.C. § 3583(a) which authorizes the imposition of a “term of supervised

release after imprisonment.” Furthermore, the objectives of supervised release would be unfulfilled if

excess prison time were to offset and reduce terms of supervised release. Congress intended supervised

release to assist individuals in their transition to community life. 
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pg. 14

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

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

to the original offense, and under the Ex Post Facto Clause, a law “burdening private interests” cannot be

applied to a defendant whose original offense occurred before the effective date of the statute. Compare

United States v. Johnson, 181 F.3d 105 (6th Cir. 1999)(unpublished); United States v. Sandoval, 69 F.3d

531 (1st Cir.)(unpublished), cert. denied, 519 U.S. 821 (1996); United States v. St. John, 92 F.3d 761

(8th Cir. 1996) (no ex post facto violation in applying § 3583(h) to a defendant whose offense occurred

before date statute enacted) with United States v. Dozier, 119 F.3d 239 (3d Cir. 1997); United States v.

Lominac, 146 F.3d 308 (4th Cir. 1998); United States v. Eske, 189 F.3d 536 (7th Cir. 1999), United

States v. Collins, 118 F.3d 1394 (9th Cir. 1997); and United States v. Meeks, 25 F.3d 1117 (2d Cir.

1994) (because revocation penalties punish the original offense, retroactive application of § 3583(h)

violates Ex Post Facto Clause). Absent a clear indication by Congress that a statute applies retroactively,

a statute takes effect the day it is enacted. 

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

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

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

enacted. The lower court held that revocation penalties punish a defendant for the conduct leading to the

revocation, not the original offense. Thus, because the statute was enacted before the defendant violated

his supervised release, there was no ex post facto violation. United States v. Johnson, 181 F.3d 105 (6th

Cir. 1999). The government disavowed the position taken by the lower court of appeal, and “wisely so”

opined the Supreme Court “in view of the serious constitutional questions that would be raised by

construing revocation and reimprisonment as punishment for the violation of the conditions of supervised

release.” Johnson, 120 S.Ct. at 1800.

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

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

in the defendant’s case because Congress gave no indication that § 3583(h) applied retroactively. The

statute could not be applied to the defendant because it did not become effective until after the defendant

committed the original offense. Nevertheless, the version of § 3583(e)(3) in effect at the time of the

original offense authorized a court to reimpose a term of supervised release upon revocation. Congress’s

unconventional use of the term “revoke” rather than “terminate” would not preclude additional supervised

release, and this reading is consistent with congressional sentencing policy. 

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

release as part of a revocation sentence resolved another split in the Circuits. The Second, Third, Fourth,

Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits held that § 3583(e)(3) did not authorize a court

to impose an additional term of supervised release following revocation and imprisonment. The First and

Eighth Circuits held that § 3583(e)(3) did grant a court such authority. See Johnson, 120 S. Ct. at 1800

(n. 2) (2000)(citing cases).