WITTE v. UNITED STATES
No. 94-6187
SUPREME COURT OF THE UNITED STATES
June 14, 1995
515 U.S. 389
Argued April 17, 1995
H. Michael Sokolow argued the cause for petitioner. With him on the briefs were Roland E. Dahlin II and Thomas S. Berg.
Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Dreeben, and Joseph C. Wyderko.*
JUSTICE O‘CONNOR delivered the opinion of the Court.†
The Double Jeopardy Clause of the
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
In calculating Witte‘s base offense level under the Sentencing Guidelines, the presentence 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 § 1B1.3 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
The Court of Appeals for the Fifth Circuit reversed. 25 F. 3d 250 (1994). Relying on our decision in Williams v. Oklahoma, 358 U. S. 576 (1959), the court held that “the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct.” 25 F. 3d, at 258. Thus, although the sentencing court took the quantity of cocaine involved in the 1990 importation scheme into account when determining the sentence for Witte‘s 1991 marijuana possession offense, the Court of Appeals concluded that Witte had not been punished for the cocaine offenses in the first prosecution and that the Double Jeopardy Clause therefore did not bar the later action. In reaching this result, the court expressly disagreed with contrary holdings in United States v. Koonce, 945 F. 2d 1145 (CA10 1991), cert. denied, 503 U. S. 994 (1992), and United States v. McCormick, 992 F. 2d 437 (CA2 1993), that when a defendant‘s actions are included in relevant conduct in determining the punishment under the Sentencing Guidelines for one offense, those actions may not form the basis for a later indictment without violating double jeopardy. We granted certiorari to resolve the conflict among the Circuits, 513 U. S. 1072 (1995), and now affirm.
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.”
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, 284 U. S. 299, 304 (1932), “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” See also Dixon, supra, at 696 (emphasizing that the same inquiry generally applies “[i]n both the multiple punishment and multiple prosecution contexts“). Under the Blockburger test, the indictment in this case did not charge the same offense to which petitioner formerly had pleaded guilty.
Traditionally, “[s]entencing 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, 511 U. S. 738, 747 (1994). We explained in Williams v. New York, 337 U. S. 241, 246 (1949), that “both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources
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, 358 U. S. 576, arose out of a kidnaping and murder committed by the petitioner while attempting to escape from police after a robbery. Following his arrest, Williams pleaded guilty to murder and was given a life sentence. He was later convicted of kidnaping, which was then a capital offense in Oklahoma, and the sentencing court took into account, in assessing the death penalty, the fact that the kidnaping victim had been murdered. We rejected Williams’ contention that this use of the conduct that had given rise to the prior conviction violated double jeopardy. Emphasizing that “the exercise of a sound discretion in such a case required consideration of all the circumstances of the crime,” we made clear that “one of the aggravating circumstances involved in this kidnaping crime was the fact that petitioner shot and killed the victim in the course of its commission,” and rejected the claim “that the sentencing judge was not entitled to consider that cir-
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
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 “[e]nhancement 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, 511 U. S., at 747 (approving consideration of a defendant‘s previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense). In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense “is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,” but instead as “a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Gryger v. Burke, 334 U. S. 728, 732 (1948). See also Spencer v. Texas, 385 U. S. 554, 560 (1967); Oyler v. Boles, 368 U. S. 448, 451 (1962); Moore v. Missouri, 159 U. S. 673, 677 (1895) (under a recidivist statute, “the accused is not again punished for the first offence” because “the punishment is for the last offence committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself‘“).
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, 477 U. S., at 88; cf. Mullaney v. Wilbur, 421 U. S. 684, 700 (1975). We hold that, where the legislature has authorized such a particular punishment range for a given crime, the resulting
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 “result[ing] 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 duplicative 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, “[u]nder
IV
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.
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, 505 U. S. 833, 982-984, 993–994 (1992) (SCALIA, J., concurring in judgment in part and dissenting in part); Walton v. Arizona, 497 U. S. 639, 673 (1990) (SCALIA, J., concurring in part and concurring in judgment).
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, 511 U. S. 767, 804-805 (1994) (SCALIA, J., dissenting). Since petitioner was not twice prosecuted for the same offense, I concur in the judgment.
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.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.
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, 508 U. S. 476, 485 (1993). “One such important factor” to be considered in the sentencing calculus is “a defendant‘s prior convictions.” Nichols v. United States, 511 U. S. 738, 747 (1994). 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 400 (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 offence.‘” 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.
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.
III
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
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 400-401. 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 Mont. v. Kurth Ranch, 511 U. S. 767, 779-780 (1994), 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, 794 (1969), that the Double Jeopardy Clause “should apply to the States through the
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.” 358 U. S., at 587. In any event, I surely would not apply the Williams Court‘s dubious reasoning to a federal sentence imposed under the Guidelines.3
IV
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 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 406.4
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.