Witte v. United States (94-6187), 515 U.S. 389 (1995).
[ O'Connor ]
[ Stevens ]
[ Scalia ]
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No. 94-6187


on writ of certiorari to the united states court of appeals for the fifth circuit

[June 14, 1995]

Justice Stevens , concurring in part and dissenting in The question presented is whether the Double Jeopardy Clause bars that subsequent prosecution. The Court today holds that it does not. In my view, the Court's holding is incorrect and unprecedented. More importantly, it weakens the fundamental protections the Double Jeopardy Clause was intended to provide.

In my view, the double jeopardy violation is plain. Petitioner's marijuana conviction, which involved 1,000 pounds of marijuana, would have resulted in a Guide

lines range of 78 to 97 months. When petitioner's cocaine offenses were considered in the sentencing calculus, the new Guidelines range was 292 to 365 months. This was the range that the District Court used as the basis for its sentencing calculations. [n.1] Thus, the District Court's consideration of the cocaine offenses increased petitioner's sentencing range by over 200 months.

Under these facts, it is hard to see how the Double Jeopardy Clause is not implicated. In my view, quite simply, petitioner was put in jeopardy of punishment for the cocaine transactions when, as mandated by the Guidelines, he was in fact punished for those offenses. The Double Jeopardy Clause should thus preclude any subsequent prosecution for those cocaine offenses.

Despite the intuitive appeal of this approach, the majority concludes that these facts do not implicate the Double Jeopardy Clause. To reach this conclusion, the majority relies on our prior decisions that have permitted sentencers to consider at sentencing both prior convictions and other offenses that are related to the offense of conviction. The majority's reliance on these cases suggests that it has overlooked a distinction that I find critical to the resolution of the double jeopardy issue at hand.

"Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant." Wisconsin v. Mitchell, 508 U. S. __, __ (1993) (slip op., at 7). "One such important factor" to be considered in the sentencing calculus is "a defendant's prior convictions." Nichols v. United States, 511 U. S. __, __ (1994) (slip op., at 9). Indeed, the prominent role played by past conduct in most guidelines based sentencing regimes and in statutes that punish more harshly "habitual offenders" reveals the importance of this factor. As the majority notes, we have repeatedly upheld the use of such prior convictions against double jeopardy challenges. See ante, at 11 (citing cases). However, an understanding of the reason for our rejection of those challenges makes clear that those cases do not support the majority's conclusion.

Traditional sentencing practices recognize that a just sentence is determined in part by the character of the offense and in part by the character of the offender. Within this framework, the admission of evidence of an offender's past convictions reflects the longstanding notion that one's prior record is strong evidence of one's character. A recidivist should be punished more severely than a first offender because he has failed to mend his ways after a first conviction. As we noted in Moore v. Missouri, 159 U.S. 673, 677 (1895), " `the punishment for the second [offense] is increased, because by his persistence in the perpetration of crime, [the defendant] has evinced a depravity, which merits a greater punishment, and needs to be restrained by severer penalties than if it were his first offense.' " See also McDonald v. Massachusetts, 180 U.S. 311, 313 (1901) (commission of a second crime after conviction for first "show[s] that the man is an habitual criminal"). Thus, when a sentencing judge reviews an offender's prior convictions at sentencing, the judge is not punishing that offender a second time for his past misconduct, but rather is evaluating the nature of his individual responsibility for past acts and the likelihood that he will engage in future misconduct. Recidivist statutes are consistent with the Double Jeopardy Clause not because of the formalistic premise that one can only be punished or placed in jeopardy for the "offense of conviction," but rather because of the important functional understanding that the purpose of the prior conviction is to provide valuable evidence as to the offender's character. The majority's reliance on recidivist statutes is thus unavailing.

When the offenses considered at sentencing are somehow linked to the offense of conviction, the analysis is different. Offenses that are linked to the offense of conviction may affect both the character of the offense and the character of the offender. That is, even if he is not a recidivist, a person who commits two offenses should also be punished more severely than one who commits only one, in part because the commission of multiple offenses provides important evidence that the character of the offender requires special punishment, and in part because the character of the offense is aggravated by the commission of multiple offenses. Insofar as a sentencer relies on an offense as evidence of character, the Double Jeopardy Clause is not implicated. However, insofar as the sentencer relies on the offense as aggravation of the underlying offense, the Double Jeopardy Clause is necessarily implicated. At that point, the defendant is being punished for having committed the offense at issue, and not for what the commission of that offense reveals about his character. In such cases, the defendant has been "put in jeopardy" of punishment for the offense because he has in fact been punished for that offense.

Under many sentencing regimes, of course, it is difficult if not impossible to determine whether a given offense has affected the judge's assessment of the character of the offender, the character of the offense, or both. However, under the federal Sentencing Guidelines, the role played by each item in the sentencing calculus is perfectly clear. The Guidelines provide for specific sentencing adjustments for "criminal history" (i.e.,character of the offender) and for "relevant conduct" (i.e., character of the offense). Under the Guidelines, therefore, an offense that is included as "relevant conduct" does not relate to the character of the offender (which is reflected instead by criminal history), but rather measures only the character of the offense. Even if all other mitigating and aggravating circumstances that shed light on an offender's character have been taken into account, the judge must sentence the offender for conduct that affects the seriousness of the offense.

The effect of this regime with respect to drug crimes provides a particularly striking illustration of why this mandatory consideration of relevant conduct implicates the Double Jeopardy Clause under anything but a formalistic reading of the Clause. Under the Guidelines, the severity of a drug offense is measured by the total quantity of drugs under all offenses that constitute "relevant conduct," regardless of whether those offenses were charged and proved at the guilt phase of the trial or instead proved at the sentencing hearing. For example, as I have noted above, petitioner's guidelines range was determined by adding the quantity of marijuana to the quantity of cocaine (using the conversion formula set forth in the Guidelines). Petitioner has thus already been sentenced for an actual offense that includes the cocaine transactions that are the subject of the second indictment. Those transactions played precisely the same role in fixing his punishment as they would have if they had been the subject of a formal charge and conviction. The actual imposition of that punishment must surely demonstrate that petitioner was just as much in jeopardy for the offense as if he had been previously charged with it.

In sum, traditional sentencing practice does not offend the Double Jeopardy Clause because (1) past convictions are used only as evidence of the character of the offender, and not as evidence of the character of the offense, and (2) in traditional sentencing regimes, it is impossible to determine for what purpose the sentencer has relied on the relevant offenses. In my view, the Court's failure to recognize the critical distinction between the character of the offender and the character of the offense, as well as the Court's failure to recognize the change in sentencing practices caused by the Guidelines, cause it to overlook an important and obvious violation of the Double Jeopardy Clause.

Once this error in the majority's analysis is recognized, it becomes apparent that none of the cases on which the majority relies compels today's novel holding. In Williams v. New York, 337 U.S. 241 (1949), the Court held that the Due Process Clause did not prevent a sentencing judge from considering information contained in a presentence report. The Court's conclusion in Williams is consistent with my approach. The Williams Court repeatedly emphasized that the information in the presentence report provided the court with relevant information about the character of the defendant. For example, the Court noted that "the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime." The Court continued: "The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender." Finally, the Court observed that "[t]oday's philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders." Id., at 247-248. Thus, the entire rationale of the Williams opinion focussed on the importance of evidence that reveals the character of the offender. Not a word in Justice Black's opinion even suggests that if evidence adduced at sentencing were used to support a sentence for an offense more serious than the offense of conviction, the defendant would not have been placed in jeopardy for that more serious offense. [n.2]

The Court also relies on McMillan v. Pennsylvania, 477 U.S. 79 (1986), suggesting that McMillan "necessarily impl[ies]" that consideration of "offender specific information at sentencing" does not "result in `punishment for such conduct.' " Ante, at 11. I believed at the time and continue to believe that McMillan was wrongly decided. However, even accepting the Court's conclusion in McMillan, that case does not support the majority's position. In United States v. Halper, 490 U.S. 435, 448 (1989), and Department of Revenue of Montana v. Kurth Ranch, 511 U. S. __, __ (1994) (slip op., at 10), we emphatically rejected the proposition that punishment under the Double Jeopardy Clause only occurs when a court imposes a sentence for an offense that is proven beyond a reasonable doubt at a criminal trial.

The case on which the Court places its principal reliance, Williams v. Oklahoma, 358 U.S. 576 (1959), is not controlling precedent. Williams was decided over 10 years before the Court held in Benton v. Maryland, 395 U.S. 784 (1969), that the Double Jeopardy Clause "should apply to the States through the Fourteenth Amendment." Id., at 794. Thus, Williams did not even apply the Double Jeopardy Clause and instead applied only a "watered down" version of due process, see Benton, 395 U. S., at 796. Moreover, in Williams, the State's discretionary sentencing scheme was entirely dissimilar to the federal Sentencing Guidelines, which require that "relevant conduct" be punished as if it had been proven beyond a reasonable doubt. The Court is therefore free to accept or reject the majority's reasoning in Williams.

The precise issue resolved in Williams is also somewhat different from that presented in today's case. In Williams, the petitioner committed two offenses, kidnapping and murder, arising out of the same incident. Though petitioner was convicted of capital murder, the judge imposed a sentence of life imprisonment. There is no reason to believe that the judge considered the kidnapping offense as relevant conduct in sentencing petitioner for the murder. Williams was then prosecuted for kidnapping. He did not raise a double jeopardy objection to the kidnaping prosecution--an objection that would have been comparable to petitioner's claim in this case regarding his cocaine prosecution. After Williams pleaded guilty to the kidnapping, the court considered the circumstances of the crime, including the murder, and imposed a death sentence. This Court affirmed. I agree with Justice Douglas' dissent "that petitioner was in substance tried for murder twice in violation of the guarantee against double jeopardy." Id., at 587. In any event, I surely would not apply the Williams Court's dubious reasoning to a federal sentence imposed under the Guidelines. [n.3]

Given the absence of precedent requiring the majority's unjust result, the case should be decided by giving effect to the text and purpose of the Double Jeopardy Clause. Petitioner received the sentence authorized by law for the offense of attempting to import cocaine. Petitioner is now being placed in jeopardy of a second punishment for the same offense. Requiring him to stand trial for that offense is a manifest violation of the Double Jeopardy Clause.

Though the majority's holding in Parts I and II removes the Double Jeopardy Clause as a constitutional bar to petitioner's second punishment, the majority does recognize that the provisions of the Sentencing Guidelines reduce the likelihood of a second punishment as a practical matter. The Guidelines will generally ensure that the total sentence received in the two proceedings is the same sentence that would have been received had both offenses been brought in the same proceeding. Moreover, as the majority notes, the departure power is available to protect against unwarranted double punishment, see ante, at 15, as well as to prevent any possibility that "a second sentence for the same relevant conduct may deprive [a defendant] of the effect of the downward departure under §5K1.1 of the Guidelines for substantial assistance to the Government," ibid. [n.4]

The Court's statutory holding thus mitigates some of the otherwise unfortunate results of its constitutional approach. More importantly, the Court's statutory analysis is obviously correct. Accordingly, I join Part III of the Court's opinion.

In my view, the Double Jeopardy Clause precludes petitioner's subsequent prosecution for the cocaine offenses because petitioner was placed in jeopardy when he was punished for those offenses following his conviction for the marijuana offenses. I therefore join only Part III of the Court's opinion, and I respectfully dissent from the Court's judgment.


1 After making offsetting adjustments for an aggravating role in the offense and for acceptance of responsibility, the District Court, pursuant to §5K1.1, departed downward by 148 months and sentenced petitioner to 144 months' imprisonment.

2 The majority's reliance on Nichols v. United States, 511 U. S. __ (1994) is similarly unavailing. In Nichols, the Court permitted the inclusion of an uncounseled misdemeanor conviction in the calculation of a defendant's criminal history. However, as I have noted above, the inclusion of an offense in criminal history for sentencing purposes treats that offense as relevant to the character of the offender rather than to the character of the offense.

3 I recognize that the Court in Williams stated that "the court's consideration of the murder as a circumstance involved in the kidnapping crime cannot be said to have resulted in punishing petitioner a second time for the same offense." 358 U. S., at 586. As I note in the text, I disagree with this statement. But even if it were correct, it does not dispose of petitioner's claim that he is being prosecuted for the cocaine offense a second time. The statement in Williams is directed only at the use of a prior conviction in a subsequent sentencing proceeding; it does not address whether the second prosecution is barred by the fact that the defendant has already been punished for the offense to be prosecuted.

4 Of course, the safeguards in the Guidelines do not eliminate the double jeopardy violation. The Double Jeopardy Clause protects against the burdens incident to a second trial, and not just against the imposition of a second punishment. Moreover, a "second conviction, even if it results in no greater sentence, is an impermissible punishment." Ball v. United States, 470 U.S. 856, 865 (1985).