Lead Opinion
delivered the opinion of the Court.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecution or multiple punishment for “the same offence.” This case, which involves application of the United States Sentencing Guidelines, asks us to consider whether a court violates that proscription by convicting and sentencing a defendant for a crime when the conduct underlying that offense has been considered in determining the defendant’s sentence for a previous conviction.
I
In June 1990, petitioner Steven Kurt Witte and several co-conspirators, including Dennis Mason and Tom Pokorny, arranged with Roger Norman, an undercover agent of the Drug Enforcement Administration, to import large amounts of marijuana from Mexico and cocaine from Guatemala. Norman had the task of flying the contraband into the United States, with Witte providing the ground transportation for the drugs once they had been brought into the country. The following month, the Mexican marijuana source advised the conspiracy participants that cocaine might be added to the
Agent Norman next spoke with Witte in January 1991 and asked if Witte would be interested in purchasing 1,000 pounds of marijuana. Witte agreed, promised to obtain a $50,000 down payment, and indicated that he would transport the marijuana in a horse trailer he had purchased for the original 1990 transaction and in a motor home owned by an acquaintance, Sam Kelly. On February 7, Witte, Norman, and Kelly met in Houston, Texas. Norman agreed to give the drugs to Witte in exchange for the $25,000 in cash Witte had been able to secure at that time and for a promise to pay the balance of the down payment in three days. Undercover agents took the motor home and trailer away to load the marijuana, and Witte escorted Norman to Witte’s hotel room to view the money. The agents returned the vehicles the next morning loaded with approximately 375 pounds of marijuana, and they arrested Witte and Kelly when the two men took possession of the contraband.
In March 1991, a federal grand jury in the Southern District of Texas indicted Witte and Kelly for conspiring and attempting to possess marijuana with intent to distribute it, in violation of 21 U. S. C. §§ 841(a) and 846. The indictment was limited on its face to conduct occurring on or about
In calculating Witte’s base offense level under the Sentencing Guidelines, the presentenee report prepared by the United States Probation Office considered the total quantity of drugs involved in all of the transactions contemplated by the conspirators, including the planned 1990 shipments of both marijuana and cocaine. Under the Sentencing Guidelines, the sentencing range for a particular offense is determined on the basis of all “relevant conduct” in which the defendant was engaged and not just with regard to the conduct underlying the offense of conviction. USSG §1B1.3. The Sentencing Commission has noted that, “[w]ith respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” USSG §1B1.3, comment., n. 2; see also USSG §2D1.1, comment., nn. 6, 12. The presentence report therefore suggested that Witte was accountable for the 1,000 pounds of marijuana involved in the attempted possession offense to which he pleaded guilty, 15 tons of marijuana that Witte, Mason, and Pokorny had planned to import from Mexico in
At the sentencing hearing, both petitioner and the Government urged the court to hold that the 1990 activities concerning importation of cocaine and marijuana were not part of the same course of conduct as the 1991 marijuana offense to which Witte had pleaded guilty, and therefore should not be considered in sentencing for the 1991 offense. The District Court concluded, however, that because the 1990 importation offenses were part of the same continuing conspiracy, they were “relevant conduct” under § IB 1.3 of the Guidelines and should be taken into account. The court therefore accepted the presentence report’s aggregation of the quantities of drugs involved in the 1990 and 1991 episodes, resulting in a base offense level of 40, with a Guideline range of 292 to 365 months’ imprisonment. App. 80-81; see also USSG §2D1.1. From that base offense level, Witte received a two-level increase for his aggravating role in the offense, see USSG §3B1.1, and an offsetting two-level decrease for acceptance of responsibility, see USSG §3E1.1. Finally, the court granted the Government’s §5K1.1 motion for downward departure based on Witte’s substantial assistance. By virtue of that departure, the court sentenced Witte to 144 months in prison, see App. 76, which was 148 months below the minimum sentence of 292 months under the predeparture Guideline range. Witte appealed, but the Court of Appeals dismissed the case when Witte failed to file a brief.
In September 1992, another grand jury in the same district returned a two-count indictment against Witte and Pokorny for conspiring and attempting to import cocaine, in violation of 21 U. S. C. §§ 952(a) and 963. The indictment alleged that, between August 1989 and August 1990, Witte tried to import about 1,091 kilograms of cocaine from Central America. Witte moved to dismiss, arguing that he had already been
The Court of Appeals for the Fifth Circuit reversed.
II
The Double Jeopardy Clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const., Amdt. 5. We have explained that “the Clause serves the function of preventing
Petitioner clearly was neither prosecuted for nor convicted of the cocaine offenses during the first criminal proceeding. The offense to which petitioner pleaded guilty and for which he was sentenced in 1992 was attempted possession of marijuana with intent to distribute it, whereas the crimes charged in the instant indictment are conspiracy to import cocaine and attempted importation of the same. Under Blockburger v. United States,
Traditionally, “[sentencing courts have not only taken into consideration a defendant’s prior convictions, but have also considered a defendant’s past criminal behavior, even if no conviction resulted from that behavior.” Nichols v. United States,
Against this background of sentencing history, we specifically have rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime. Williams v. Oklahoma,
We find this case to be governed by Williams; it makes no difference in this context whether the enhancement occurred in the first or second sentencing proceeding. Here, petitioner pleaded guilty to attempted possession of marijuana with intent to distribute it, in violation of 21U. S. C. §§ 841(a) and 846. The statute provides that the sentence for such a crime involving 100 kilograms or more of marijuana must be between 5 and 40 years in prison. § 841(b)(1)(B). By including the cocaine from the earlier transaction — and not just the marijuana involved in the offense of conviction — in the drug quantity calculation, the District Court ended up with a higher offense level (40), and a higher sentence range (292 to 365 months), than it would have otherwise under the applicable Guideline, which specifies different base offense levels depending on the quantity of drugs involved. USSG § 2D 1.1. This higher Guideline range, however, still falls within the scope of the legislatively authorized penalty (5 to 40 years). As in Williams, the uncharged criminal conduct was used to enhance petitioner’s sentence within the range authorized by statute. If use of the murder to justify the death sentence for the kidnaping conviction was not “punishment” for the murder in Williams, it is impossible to con-
Williams, like this case, concerned the double jeopardy-implications of taking the circumstances surrounding a particular course of criminal activity into account in sentencing for a conviction arising therefrom. Similarly, we have made clear in other cases, which involved a defendant’s background more generally and not conduct arising out of the same criminal transaction as the offense of which the defendant was convicted, that “[enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common place in state criminal laws, do not change the penalty imposed for the earlier conviction.” Nichols,
In addition, by authorizing the consideration of offender-specific information at sentencing without the procedural protections attendant at a criminal trial, our cases necessarily imply that such consideration does not result in “punish
We are not persuaded by petitioner’s suggestion that the Sentencing Guidelines somehow change the constitutional analysis. A defendant has not been “punished” any more for double jeopardy purposes when relevant conduct is included in the calculation of his offense level under the Guidelines than when a pre-Guidelines court, in its discretion, took similar uncharged conduct into account. Cf. McMillan, supra, at 92 (perceiving no difference in the due process cal-
Justice Stevens disagrees with our conclusion because, he contends, “[u]nder the Guidelines, ... 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.” Post, at 411. The criminal history section of the Guidelines, however, does not seem to create this bright line distinction; indeed, the difference between “criminal history” and “relevant conduct” is more temporal than qualitative, with the former referring simply to a defendant’s past criminal conduct (as evidenced by convictions and prison terms), see USSG §4A1.1, and the latter covering activity arising out of the same course of criminal conduct as the instant offense, see USSG § 1B1.3.
To the extent that the Guidelines aggravate punishment for related conduct outside the elements of the crime on the
The relevant conduct provisions of the Sentencing Guidelines, like their criminal history counterparts and the recidivism statutes discussed above, are sentencing enhancement regimes evincing the judgment that a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity. Petitioner does not argue that the range fixed by Congress is so broad, and the enhancing role played by the relevant conduct so significant, that consideration of that conduct in sentencing has become “a tail which wags the dog of the substantive offense.” McMillan,
III
At its core, much of petitioner’s argument addresses not a claim that the instant cocaine prosecution violates principles of double jeopardy, but the more modest contention that he should not receive a second sentence under the Guidelines for the cocaine activities that were considered as relevant conduct for the marijuana sentence. As an examination of the pertinent sections should make clear, however, the Guidelines take into account the potential unfairness with which petitioner is concerned.
Petitioner argues that the Sentencing Guidelines require that drug offenders be sentenced in a single proceeding for all related offenses, whether charged or uncharged. See Brief for Petitioner 20-23. Yet while the Guidelines certainly envision that sentences for multiple offenses arising out of the same criminal activity ordinarily will be imposed together, they also explicitly contemplate the possibility of separate prosecutions involving the same or overlapping “relevant conduct.” See USSG §5G1.3, comment., n. 2 (addressing cases in which “a defendant is prosecuted in ... two or more federal jurisdictions, for the same criminal conduct or for different criminal transactions that were part of the same course of conduct”). There are often valid reasons why related crimes committed by the same defendant are not prosecuted in the same proceeding, and §5G1.3 of the Guidelines attempts to achieve some coordination of sentences imposed in such situations with an eye toward having such punishments approximate the total penalty that would have been imposed had the sentences for the different offenses been imposed at the same time (i. e., had all
Because the concept of relevant conduct under the Guidelines is reciprocal, § 5G1.3 operates to mitigate the possibility that the fortuity of two separate prosecutions will grossly increase a defendant’s sentence. If a defendant is serving an undischarged term of imprisonment “resulting] from offense(s) that have been fully taken into account [as relevant conduct] in the determination of the offense level for the instant offense,” § 5G1.3(b) provides that “the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” And where § 5G1.3(b) does not apply, an accompanying policy statement provides, “the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.” USSG §5G1.3(c) (policy statement). Significant safeguards built into the Sentencing Guidelines therefore protect petitioner against having the length of his sentence multiplied by dupli-cative consideration of the same criminal conduct; he would be able to vindicate his interests through appropriate appeals should the Guidelines be misapplied in any future sentencing proceeding.
Even if the Sentencing Commission had not formalized sentencing for multiple convictions in this way, district courts under the Guidelines retain enough flexibility in appropriate cases to take into account the fact that conduct underlying the offense at issue has previously been taken into account in sentencing for another offense. As the Commission has explained, “fu]nder 18 U. S. C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines
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Because consideration of relevant conduct in determining a defendant’s sentence within the legislatively authorized punishment range does not constitute punishment for that conduct, the instant prosecution does not violate the Double Jeopardy Clause’s prohibition against the imposition of multiple punishments for the same offense. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Notes
The Chief Justice and Justice Kennedy join all but Part III of this opinion, and Justice Stevens joins only Part III.
Concurrence Opinion
concurring in the judgment.
This is one of those areas in which I believe our jurisprudence is not only wrong but unworkable as well, and so persist in my refusal to give that jurisprudence stare decisis effect. See Planned Parenthood of Southeastern Pa. v. Casey,
It is not true that (as the Court claims) “the language of the Double Jeopardy Clause protects against. . . the actual imposition of two punishments for the same offense.” Ante, at 396. What the Clause says is that no person “shall... be
In sum, I adhere to my view that “the Double Jeopardy Clause prohibits successive prosecution, not successive punishment.” Department of Revenue of Mont. v. Kurth Ranch,
Concurrence Opinion
concurring in part and dissenting in part.
Petitioner pleaded guilty to attempting to possess with intent to distribute more than 100 kilograms of marijuana. At petitioner’s sentencing hearing, the District Court heard evidence concerning petitioner’s participation in a conspiracy to import cocaine. Pursuant to its understanding of the United States Sentencing Guidelines, the District Court considered the cocaine offenses as “relevant conduct” and increased petitioner’s sentence accordingly. Petitioner received exactly the same sentence that he would have received had he been convicted of both the marijuana offenses and the cocaine of
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.
I
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 Guidelines 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.
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.
II
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
“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,
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,
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.
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
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.
H — 1 HH
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,
The Court also relies on McMillan v. Pennsylvania,
The case on which the Court places its principal reliance, Williams v. Oklahoma,
The precise issue resolved in Williams is also somewhat different from that presented in today’s case. In Williams, the petitioner committed two offenses, kidnaping 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 kidnaping offense as relevant conduct in sentencing petitioner for the murder. Williams was then prosecuted for kidnaping. 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 kidnaping, 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.”
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Though the majority s holding m 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 405-406, 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,” ante, at 406.
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.
After making offsetting adjustments for an aggravating role in the offense and for acceptance of responsibility, the District Court, pursuant to United States Sentencing Commission, Guidelines Manual § 5K1.1, departed downward by 148 months and sentenced petitioner to 144 months’ imprisonment..
The majority’s reliance on Nichols v. United States,
1 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.”
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,