United States v. Rodriquez

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. RODRIQUEZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 06–1646. Argued January 15, 2008—Decided May 19, 2008

Upon respondent’s federal conviction for possession of a firearm by a

convicted felon, 18 U. S. C. §922(g)(1), he had three prior Washington

state convictions for delivery of a controlled substance. At the time of

those convictions, Washington law specified a maximum 5-year

prison term for the first such offense. A recidivist provision, however,

set a 10-year ceiling for a second or subsequent offense, and the state

court had sentenced respondent to concurrent 48-month sentences on

each count. The Government contended in the federal felon-in-

possession case that respondent should be sentenced under the

Armed Career Criminal Act (ACCA), §924(e), which sets a 15-year

minimum sentence “[i]n the case of a person who violates [§922(g)]

and has three previous convictions . . . for a . . . serious drug offense,”

§924(e)(1). Because a state drug-trafficking conviction qualifies as “a

serious drug offense” if “a maximum term of imprisonment of ten

years or more is prescribed by law” for the “offense,” §924(e)(2)(A)(ii),

and the maximum term on at least two of respondent’s Washington

crimes was 10 years under the state recidivist provision, the Gov-

ernment argued that these convictions had to be counted under

ACCA. The District Court disagreed, holding that the “maximum

term of imprisonment” for §924(e)(2)(A)(ii) purposes is determined

without reference to recidivist enhancements. The Ninth Circuit af-

firmed.

Held: The “maximum term of imprisonment . . . prescribed by law” for

the state drug convictions at issue was the 10-year maximum set by

the applicable state recidivist provision. Pp. 3–14.

(a) This reading is compelled by a straightforward application of

§924(e)(2)(A)(ii)’s three key terms: “offense,” “law,” and “maximum

term.” The “offense” was the crime charged in each of respondent’s

2 UNITED STATES v. RODRIQUEZ

Syllabus

drug-delivery cases. And because the relevant “law” is the state

statutes prescribing 5- and 10-year prison terms, the “maximum

term” prescribed for at least two of respondent’s state drug offenses

was 10 years. The Ninth Circuit’s holding that the maximum term

was 5 years contorts ACCA’s plain terms. Although the state court

sentenced respondent to 48 months, there is no dispute that state law

permitted a sentence of up to 10 years. The Circuit’s interpretation

is also inconsistent with how the concept “maximum term of impris-

onment” is customarily understood by participants in the criminal

justice process. Pp. 3–5.

(b) Respondent’s textual argument—that because “offense” gener-

ally describes a crime’s elements, while prior convictions required for

recidivist enhancements are not typically elements, such convictions

are not part of the ACCA “offense,” and the “maximum term” for the

convictions at issue was the 5-year ceiling for simply committing the

drug offense elements—is not faithful to the statutory text, which re-

fers to the maximum 10-year term prescribed by Washington law for

each of respondent’s two relevant offenses. Respondent’s “manifest

purpose” argument—that because ACCA uses the maximum state-

law penalty as shorthand for conduct sufficiently serious to trigger

the mandatory penalty, while an offense’s seriousness is typically

gauged by the nature of the defendant’s conduct, the offense’s ele-

ments, and the crime’s impact, a defendant’s recidivist status has no

connection to whether his offense was serious—rests on the errone-

ous proposition that a prior record has no bearing on an offense’s se-

riousness. Respondent’s understanding of recidivism statutes has

been has squarely rejected. See, e.g., Nichols v. United States, 511

U. S. 738, 747. Pp. 5–7.

(c) Respondent’s argument that the Court’s ACCA interpretation

produces a perverse bootstrapping whereby a defendant is punished

under federal law for being treated as a recidivist under state law is

rejected. The Court’s reading is bolstered by the fact that ACCA is

itself a recidivist statute, so that Congress must have understood

that the “maximum penalty prescribed by [state] law” could be in-

creased by state recidivism provisions. Contrary to respondent’s sug-

gestion, United States v. LaBonte, 520 U. S. 751—in which the Court

held that the phrase “maximum term authorized” in 28 U. S. C.

§994(h) “refers to all applicable statutes,” including recidivist en-

hancements—supports the Court’s ACCA interpretation. Respon-

dent’s reliance on Taylor v. United States, 495 U. S. 575, is also mis-

placed: There is no connection between the issue there (the meaning

of “burglary” in §924(e)(2)(B)(ii)) and the meaning of “maximum term

of imprisonment . . . prescribed by law” in §924(e)(2)(A)(ii). Respon-

dent argues unpersuasively that, under today’s interpretation, of-

fenses that are not really serious will be included as “serious drug of-

Cite as: 553 U. S. ____ (2008) 3

Syllabus

fense[s]” because of recidivist enhancements. Since Congress pre-

sumably thought that state lawmakers must consider a crime “seri-

ous” when they provide a 10-year sentence for it, this Court’s holding

poses no risk that a drug-trafficking offense will be treated as “seri-

ous” without satisfying the standard Congress prescribed. Pp. 7–9.

(d) Also rejected is respondent’s argument that the Court’s holding

will often require federal courts to engage in difficult inquiries re-

garding novel state-law questions and complex factual determina-

tions about long-past state-court proceedings. Respondent greatly

exaggerates the difficulties because (1) receipt of a recidivist en-

hancement will necessarily be evident from the sentence’s length in

some cases; (2) the conviction judgment will sometimes list the

maximum possible sentence even where the sentence actually im-

posed did not exceed the top sentence allowed without recidivist en-

hancement; (3) some jurisdictions require the prosecution to submit a

publicly available charging document to obtain a recidivist enhance-

ment; (4) a plea colloquy will often include a statement by the trial

judge regarding the maximum penalty; and (5) where the records do

not show that the defendant faced a recidivist enhancement, the

Government may well be precluded from establishing that a convic-

tion was for a qualifying offense. Merely because future cases might

present difficulties cannot justify disregarding ACCA’s clear mean-

ing. Pp. 10–11.

(e) Also unavailing is respondent’s argument that if recidivist en-

hancements can increase the “maximum term” under ACCA, then

mandatory guidelines systems capping sentences can decrease the

“maximum term,” whereas Congress cannot have wanted to make the

“maximum term” dependent on the complexities of state sentencing

guidelines. The phrase “maximum term of imprisonment . . . pre-

scribed by law” for the “offense” could not have been meant to apply

to the top sentence in a guidelines range because (1) such a sentence

is generally not really the maximum because guidelines systems

typically allow a sentencing judge to impose a sentence that exceeds

the top of the guidelines range under appropriate circumstances; and

(2) in all of the many statutes predating ACCA and the federal Sen-

tencing Reform Act of 1984 that used the concept of the “maximum”

term prescribed by law, the concept necessarily referred to the maxi-

mum term prescribed by the relevant criminal statute, not the top of

a sentencing guideline range. United States v. R. L. C., 503 U. S.

291, 295, n. 1, 299, distinguished. Pp. 11–14.

464 F. 3d 1072, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined. SOUTER, J.,

filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.

Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–1646

_________________

UNITED STATES, PETITIONER v. GINO RODRIQUEZ

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 19, 2008]

JUSTICE ALITO delivered the opinion of the Court.

Under the Armed Career Criminal Act (ACCA), 18

U. S. C. §924(e)(2)(A)(ii), a state drug-trafficking convic-

tion qualifies as “a serious drug offense” if “a maximum

term of imprisonment of ten years or more is prescribed by

law” for the “offense.” The Court of Appeals for the Ninth

Circuit held that “the maximum term of imprisonment . . .

prescribed by law” must be determined without taking

recidivist enhancements into account. 464 F. 3d 1072,

1082 (2006). We reverse.

I

At issue in this case is respondent’s sentence on his

2004 conviction in the United States District Court for the

Eastern District of Washington for possession of a firearm

by a convicted felon, in violation of 18 U. S. C. §922(g)(1).

Respondent had two prior state convictions in California

for residential burglary and three state convictions in

Washington for delivery of a controlled substance, in

violation of Wash. Rev. Code §§69.50.401(a)(1)(ii)–(iv)

(1994).1 Respondent’s three Washington drug convictions

——————

1 “Except as authorized by this chapter, it is unlawful for any person

2 UNITED STATES v. RODRIQUEZ

Opinion of the Court

occurred on the same day but were based on deliveries

that took place on three separate dates. Sentencing Order

No. CR–03–142–RHW (ED Wash., Sept. 3, 2004), p. 5,

App. 245, 250 (hereinafter Sentencing Order). At the time

of respondent’s drug offenses, the Washington statute that

respondent was convicted of violating stated that, upon

conviction, a defendant could be “imprisoned for not more

than five years,” §§69.50.401(a)(1)(ii)–(iv), but another

provision specified that “[a]ny person convicted of a second

or subsequent offense” could “be imprisoned for a term up

to twice the term otherwise authorized,” §69.50.408(a).

Thus, by virtue of this latter, recidivist, provision respon-

dent faced a maximum penalty of imprisonment for 10

years. The judgment of conviction for each of the drug-

delivery charges listed the maximum term of imprison-

ment for the offense as “ten years,” App. 16, 42, 93, but the

state court sentenced respondent to concurrent sentences

of 48 months’ imprisonment on each count. Id., at 21, 47,

98.

In the federal felon-in-possession case, the Government

asked the District Court to sentence respondent under

ACCA, which sets a 15-year minimum sentence “[i]n the

case of a person who violates section 922(g) of [Title 18]

and has three previous convictions . . . for a violent felony

or a serious drug offense, or both, committed on occasions

different from one another . . . .” 18 U. S. C. §924(e)(1)

(2000 ed., Supp. V). The Government argued that respon-

dent’s two prior California burglary convictions were for

“ ‘violent felonies.’ ” Pet. for Cert. 4. See §924(e)(2)(B)(ii)

(2000 ed.) (listing “burglary” as a “violent felony”). The

District Court agreed, and that ruling is not at issue here.

The Government also argued that at least two of re-

spondent’s Washington drug convictions were for “serious

——————

to manufacture, deliver, or possess with intent to manufacture or

deliver a controlled substance.” Wash. Rev. Code §69.50.401(a)(1994).

Cite as: 553 U. S. ____ (2008) 3

Opinion of the Court

drug offense[s].” Under ACCA, a “serious drug offense”

includes:

“an offense under State law, involving manufacturing,

distributing, or possessing with intent to distribute, a

controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U. S. C. 802)), for

which a maximum term of imprisonment of ten years

or more is prescribed by law.” §924(e)(2)(A) (emphasis

added).

Because the maximum term that respondent faced on at

least two of the Washington charges was 10 years, the

Government contended that these convictions had to be

counted under ACCA. The District Court disagreed, hold-

ing that respondent’s drug-trafficking convictions were not

convictions for “serious drug offense[s]” under ACCA

because the “maximum term of imprisonment” for the

purposes of §924(e)(2)(A)(ii) is determined without refer-

ence to recidivist enhancements. Sentencing Order, at 9,

App. 254.

The Court of Appeals for the Ninth Circuit, applying its

prior precedent in United States v. Corona-Sanchez, 291

F. 3d 1201 (2002) (en banc), affirmed. 464 F. 3d 1072.

The Court recognized that its decision conflicted with the

Seventh Circuit’s decision in United States v. Henton, 374

F. 3d 467, 469–470, cert. denied, 543 U. S. 967 (2004), and

was “in tension” with decisions of the Fourth and Fifth

Circuits. 464 F. 3d, at 1082, n. 6; see Mutascu v. Gonzales,

444 F. 3d 710, 712 (CA5 2006) (per curiam); United States

v. Williams, 326 F. 3d 535, 539 (CA4 2003). We granted

the Government’s petition for a writ of certiorari, 551 U. S.

___ (2007).

II

The question that we must decide is whether the

“maximum term of imprisonment prescribed by law” in

this case is, as respondent maintains and the Ninth Cir-

4 UNITED STATES v. RODRIQUEZ

Opinion of the Court

cuit held, the 5-year ceiling for first offenses or, as the

Government contends, the 10-year ceiling for second or

subsequent offenses. See Wash. Rev. Code §§69.50.401(a)

(ii)–(iv), 69.50.408(a).

The Government’s reading is compelled by the language

of ACCA. For present purposes, there are three key statu-

tory terms: “offense,” “law,” and “maximum term.” The

“offense” in each of the drug-delivery cases was a violation

of §§69.50.401(a)(ii)–(iv). The relevant “law” is set out in

both that provision, which prescribes a “maximum term”

of five years for a first “offense,” and §69.50.408(a), which

prescribes a “maximum term” of 10 years for a second or

subsequent “offense.” Thus, in this case, the maximum

term prescribed by Washington law for at least two of

respondent’s state drug offenses was 10 years.

The Ninth Circuit’s holding that the maximum term

was five years contorts ACCA’s plain terms. Although the

Washington state court sentenced respondent to 48

months’ imprisonment, there is no dispute that

§69.50.408(a) permitted a sentence of up to 10 years. On

the Ninth Circuit’s reading of ACCA, even if respondent

had been sentenced to, say, six years’ imprisonment, “the

maximum term of imprisonment” prescribed by law still

would have been five years. It is hard to accept the propo-

sition that a defendant may lawfully be sentenced to a

term of imprisonment that exceeds the “maximum term of

imprisonment . . . prescribed by law,” but that is where the

Ninth Circuit’s reading of the statute leads.

The Ninth Circuit’s interpretation is also inconsistent

with the way in which the concept of the “maximum term

of imprisonment” is customarily understood by partici-

pants in the criminal justice process. Suppose that a

defendant who indisputably had more than three prior

convictions for “violent felon[ies]” or “serious drug of-

fense[s]” was charged in federal court with violating the

felon-in-possession statute. Under ACCA, this defendant

Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

would face a sentence of “not less than 15 years.” 18

U. S. C. §924(e)(1) (2000 ed., Supp. V). Suppose that the

defendant asked his or her attorney, “What’s the maxi-

mum term I face for the new offense?” An attorney aware

of ACCA would surely not respond, “10 years,” even

though 10 years is the maximum sentence without the

ACCA enhancement. See §924(a)(2) (2000 ed.).

Suppose that the defendant then pleaded guilty to the

felon-in-possession charge. Under Federal Rule of Crimi-

nal Procedure 11(b)(1)(H), the trial judge would be re-

quired to advise the defendant of the “maximum possible

penalty.” If the judge told the defendant that the maxi-

mum possible sentence was 10 years and then imposed a

sentence of 15 years based on ACCA, the defendant would

have been sorely misled and would have a ground for

moving to withdraw the plea. See United States v. Gon-

zalez, 420 F. 3d 111, 132 (CA2 2005); United States v.

Harrington, 354 F. 3d 178, 185–186 (CA2 2004). In sum, a

straightforward application of the language of ACCA leads

to the conclusion that the “maximum term of imprison-

ment prescribed by law” in this case was 10 years.

III

A

In an effort to defend the Ninth Circuit’s decision, re-

spondent offers both a textual argument and a related

argument based on the “manifest purpose” of ACCA. Brief

for Respondent 8.

Respondent’s textual argument is as follows. The term

“offense” “generally is understood to describe the elements

constituting the crime.” Id., at 10. Because prior convic-

tions required for recidivist enhancements are not typi-

cally offense elements, they should not be considered part

of the “offense” under ACCA. Thus, the “maximum term

of imprisonment prescribed by law” for the drug convic-

tions at issue was the maximum term prescribed for sim-

6 UNITED STATES v. RODRIQUEZ

Opinion of the Court

ply committing the elements of the drug offense and was

therefore five years. Id., at 10–11.

Respondent’s argument is not faithful to the statutory

text. Respondent reads ACCA as referring to “the maxi-

mum term of imprisonment prescribed by law” for a de-

fendant with no prior convictions that trigger a recidivist

enhancement, but that is not what ACCA says. ACCA

instead refers to “the maximum term of imprisonment

prescribed by law” for “an offense,” and, as previously

explained, in this case, the maximum term prescribed by

Washington law for each of respondent’s two relevant

offenses was 10 years.

Respondent’s argument based on ACCA’s “manifest

purpose” must also be rejected. Respondent argues that

ACCA uses “the maximum penalty specified for the of-

fense by state law as a short-hand means of identifying

conduct deemed sufficiently ‘serious’ to trigger [the] man-

datory penalty.” Id., at 9. According to respondent, “[t]he

nature of [a defendant’s] conduct, the elements of the

offense, and the impact of the crime . . . are the character-

istics that typically are used to gauge the ‘seriousness’ of

an offense,” and a defendant’s “status as a recidivist has

no connection to whether the offense committed by the

defendant was a ‘serious’ one.” Id., at 11.

This argument rests on the erroneous proposition that a

defendant’s prior record of convictions has no bearing on

the seriousness of an offense. On the contrary, however,

an offense committed by a repeat offender is often thought

to reflect greater culpability and thus to merit greater

punishment. Similarly, a second or subsequent offense is

often regarded as more serious because it portends greater

future danger and therefore warrants an increased sen-

tence for purposes of deterrence and incapacitation. See

Witte v. United States, 515 U. S. 389, 403 (1995); Spencer

v. Texas, 385 U. S. 554, 570 (1967) (Warren, C. J., dissent-

ing in two judgments and concurring in one).

Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

If respondent were correct that a defendant’s record of

prior convictions has no bearing on the seriousness of an

offense, then it would follow that any increased punish-

ment imposed under a recidivist provision would not be

based on the offense of conviction but on something else—

presumably the defendant’s prior crimes or the defen-

dant’s “status as a recidivist,” Brief for Respondent 11.

But we have squarely rejected this understanding of re-

cidivism statutes. In Nichols v. United States, 511 U. S.

738 (1994), we explained that “ ‘[t]his Court consistently

has sustained repeat-offender laws as penalizing only the

last offense committed by the defendant.’ ” Id., at 747

(quoting Baldasar v. Illinois, 446 U. S. 222, 232 (1980)

(Powell, J., dissenting)). When a defendant is given a

higher sentence under a recidivism statute—or for that

matter, when a sentencing judge, under a guidelines

regime or a discretionary sentencing system, increases a

sentence based on the defendant’s criminal history—100%

of the punishment is for the offense of conviction. None is

for the prior convictions or the defendant’s “status as a

recidivist.” The sentence “is a stiffened penalty for the

latest crime, which is considered to be an aggravated

offense because [it is] a repetitive one.” Gryger v. Burke,

334 U. S. 728, 732 (1948).

B

Respondent argues that our interpretation of ACCA

produces “a sort of perverse bootstrapping” under which a

defendant is “punished under federal law for being treated

as a recidivist under state law,” Brief for Respondent 20

(emphasis deleted), but the fact that ACCA is itself a

recidivist statute bolsters our reading. Since ACCA is a

recidivist statute, Congress must have had such provisions

in mind and must have understood that the “maximum

penalty prescribed by [state] law” in some cases would be

increased by state recidivism provisions.

Contrary to respondent’s suggestion, United States v.

8 UNITED STATES v. RODRIQUEZ

Opinion of the Court

LaBonte, 520 U. S. 751 (1997), supports our interpretation

of ACCA. The statute at issue in LaBonte, a provision of

the Sentencing Reform Act of 1984, as amended, 28

U. S. C. §994(h), directed the United States Sentencing

Commission to “assure” that the Sentencing Guidelines

specify a prison sentence “at or near the maximum term

authorized for categories of” adult offenders who commit

their third felony drug offense or violent crime. We held

that the phrase “maximum term authorized” “refers to all

applicable statutes,” including recidivist enhancements.

520 U. S., at 758, n. 4.

Respondent claims that LaBonte supports his position

because ACCA, unlike 28 U. S. C. §994(h), does not refer

to “categories of” offenders. Respondent suggests that

Congress’ failure to include such language in ACCA means

that Congress intended to refer to a “maximum term” that

does not depend on whether a defendant falls into the

first-time-offender or recidivist “category.” Respondent

does not explain how 18 U. S. C. §924(e)(2)(A) could have

easily been reworded to mirror 28 U. S. C. §994(h). But in

any event, the language used in ACCA, for the reasons

explained above, is more than clear enough.

Respondent argues that the Ninth Circuit’s decision is

supported by the so-called “categorical” approach that we

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

determining which offenses qualify as “violent felon[ies]”

under 18 U. S. C. §924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii)

provides that four enumerated crimes—burglary, arson,

extortion, and offenses involving the use of explosives—

are “violent felon[ies]” for ACCA purposes. In Taylor, we

held that Congress intended for these crimes to have a

“uniform definition” that was “independent of the labels

employed by the various States’ criminal codes.” Id., at

592. According to respondent, “[t]he categorical approach

rests on the congressional intent—reflected in the statu-

tory language—to focus the ACCA inquiry on the offense

Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

of conviction, rather than on collateral matters unrelated

to the definition of the crime.” Brief for Respondent 12.

We see no connection, however, between the issue in

Taylor (the meaning of the term “burglary” in

§924(e)(2)(B)(ii)) and the issue here (the meaning of the

phrase “maximum term of imprisonment . . . prescribed by

law” under §924(e)(2)(A)(ii)). Taylor held that the mean-

ing of “burglary” for purposes of ACCA does not depend on

the label attached by the law of a particular State, 495

U. S., at 600–601, but the “maximum penalty prescribed

by law” for a state offense necessarily depends on state

law.

For a similar reason, we reject respondent’s argument

that, under our interpretation, offenses that are not really

serious will be included as “serious drug offense[s]” be-

cause of recidivist enhancements. In §924(e)(2)(A)(ii),

Congress chose to rely on the “maximum term of impris-

onment . . . prescribed” by state law as the measure of the

seriousness of state offenses involving the manufacture,

distribution, or possession of illegal drugs. Congress

presumably thought—not without reason—that if state

lawmakers provide that a crime is punishable by 10 years’

imprisonment, the lawmakers must regard the crime as

“serious,” and Congress chose to defer to the state law-

makers’ judgment. Therefore, our interpretation poses no

risk that a drug-trafficking offense will be treated as a

“serious” without satisfying the standard that Congress

prescribed.2

——————

2 In any event, the only “minor drug crime” that respondent identifies

as potentially constituting an ACCA predicate based on recidivist

enhancement is distribution of a 21 U. S. C. §812, Schedule III narcotic

in violation of Mich. Comp. Laws Ann. §333.7401(2)(b)(ii) (West Supp.

2007). Given that Schedule III substances include anabolic steroids

and painkillers with specified amounts of certain narcotics like opium,

see 21 U. S. C. §812, one might debate respondent’s assertion that

distribution of these narcotics is not “serious” in the generic sense of the

10 UNITED STATES v. RODRIQUEZ

Opinion of the Court

C

Respondent argues that it will often be difficult to de-

termine whether a defendant faced the possibility of a

recidivist enhancement in connection with a past state

drug conviction and that therefore our interpretation of

ACCA will require the federal courts to “engage in difficult

inquiries regarding novel questions of state law and com-

plex factual determinations about long-past proceedings in

state courts.” Brief for Respondent 21. Respondent

greatly exaggerates the problems to which he refers.

First, in some cases, a defendant will have received a

recidivist enhancement, and this will necessarily be evi-

dent from the length of the sentence imposed. Second, as

the present case illustrates, see App. 16, 42, 93, the judg-

ment of conviction will sometimes list the maximum pos-

sible sentence even where the sentence that was imposed

did not exceed the top sentence allowed without any re-

cidivist enhancement. Third, as respondent himself notes,

some jurisdictions require that the prosecution submit a

formal charging document in order to obtain a recidivist

enhancement. See Brief for Respondent 33. Such docu-

ments fall within the limited list of generally available

documents that courts already consult for the purpose of

determining if a past conviction qualifies as an ACCA

predicate. See Shepard v. United States, 544 U. S. 13, 20

(2005). Fourth, in those cases in which the defendant

pleaded guilty to the state drug charges, the plea colloquy

will very often include a statement by the trial judge

regarding the maximum penalty. This is mandated by

Federal Rule of Criminal Procedure 11(b)(1)(H), and many

——————

word. However, Congress chose to defer to the Michigan Legislature’s

judgment that the offense was “serious” enough to warrant punishment

of first offenses by up to seven years’ imprisonment, and certain repeat

offenses by a maximum term of life imprisonment. See Mich. Comp.

Laws Ann. §§333.7401(2)(b)(ii), 333.769.12(1).

Cite as: 553 U. S. ____ (2008) 11

Opinion of the Court

States have similar requirements.3 Finally, in those cases

in which the records that may properly be consulted do not

show that the defendant faced the possibility of a recidi-

vist enhancement, it may well be that the Government

will be precluded from establishing that a conviction was

for a qualifying offense. The mere possibility that some

future cases might present difficulties cannot justify a

reading of ACCA that disregards the clear meaning of the

statutory language.

D

Respondent’s last argument is that if recidivist en-

hancements can increase the “maximum term” of impris-

onment under ACCA, it must follow that mandatory

guidelines systems that cap sentences can decrease the

“maximum term” of imprisonment. Brief for Respondent

38. In each situation, respondent argues, the “maximum

term” of imprisonment is the term to which the state court

could actually have sentenced the defendant. Respondent

concedes that he has waived this argument with respect to

his own specific state-court convictions. See Brief in Op-

position 15, n. 7. He argues, however, that Congress

cannot have wanted to make the “maximum term” of

imprisonment for ACCA purposes dependent on the com-

plexities of state sentencing guidelines. We conclude,

however, that the phrase “maximum term of imprison-

ment . . . prescribed by law” for the “offense” was not

——————

3 See, e.g., Kan. Stat. Ann. §22–3210(a)(2) (2007); N. C. Gen. Stat.

Ann. §15A–1022(a)(6) (Lexis 2007); Tex. Crim. Proc. Code Ann.

§§26.13(a)(1), (d) (West Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(1)(ii)

(Lexis 2007); Fla. Rule Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga.

Uniform Super. Ct. Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule

402(a)(2) (West 2007); Pa. Rule Crim. Proc. 590, comment (West 2008);

Ohio Rule Crim. Proc. 11(C)(2)(a) (West 2008); Mich. Rule Crim. Proc.

6.302(B)(2) (West 2007); Alexander v. State, 605 So. 2d 1170, 1172

(Miss. 1992); Bunnell v. Superior Court, 13 Cal. 3d 592, 604–605, 531

P. 2d 1086, 1094 (1975).

12 UNITED STATES v. RODRIQUEZ

Opinion of the Court

meant to apply to the top sentence in a guidelines range.

First, the top sentence in a guidelines range is generally

not really the “maximum term . . . prescribed by law” for

the “offense” because guidelines systems typically allow a

sentencing judge to impose a sentence that exceeds the top

of the guidelines range under appropriate circumstances.

The United States Sentencing Guidelines, for example,

permit “upward departures,” see United States Sentenc-

ing Commission, Guidelines Manual §5K2.0 (Nov. 2007),

and essentially the same characteristic was shared by all

of the mandatory guidelines system in existence at the

time of the enactment of the ACCA provision at issue in

this case.4 (Following this pattern, Washington law like-

wise provided at the time of respondent’s state convictions

that a sentencing judge could “impose a sentence outside

the standard sentence range” upon a finding “that there

[were] substantial and compelling reasons justifying an

exceptional sentence.” Wash. Rev. Code §9.94A.120(2)

(1994).5)

——————

4 By 1986, when Congress added the relevant statutory language, see

Pub. L. 99–570, §1402, 100 Stat. 3207–39, eight States had guidelines

systems in effect. See Frase, State Sentencing Guidelines: Diversity,

Consensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190,

1196, Table 1 (2005). Two of those States (Utah and Maryland) had

voluntary guidelines, id., at 1198, and the other six States had guide-

lines systems that allowed for sentences in excess of the recommended

range in various circumstances, see People v. Miles, 156 Mich. App. 431,

437, 402 N. W. 2d 34, 37 (1986) (remanding for the trial court to state

reasons for upward departure); Staats v. State, 717 P. 2d 413, 422

(Alaska App. 1986) (affirming upward departure); State v. Armstrong,

106 Wash. 2d 547, 549–550, 723 P. 2d 1111, 1113–1114 (1986) (en banc)

(same); State v. Mortland, 395 N. W. 2d 469, 474 (Minn. App. 1986)

(same); Walker v. State, 496 So. 2d 220 (Fla. App. 1986) (per curiam)

(same); Commonwealth v. Mills, 344 Pa. Super. 200, 204, 496 A. 2d 752,

754 (1985) (same).

5 While Washington law provided a list of “illustrative factors which

the court [could] consider in the exercise of its discretion to impose an

exceptional sentence,” the list was “not intended to be exclusive” of

Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

Second, the concept of the “maximum” term of impris-

onment or sentence prescribed by law was used in many

statutes that predated the enactment of ACCA and the

federal Sentencing Reform Act of 1984, Pub. L. 98–473,

§211, 98 Stat. 1987, and in all those statutes the concept

necessarily referred to the maximum term prescribed by

the relevant criminal statute, not the top of a sentencing

guideline range. See, e.g., 18 U. S. C. §3 (1982 ed.) (“[A]n

accessory after the fact shall be imprisoned not more than

one-half the maximum term of imprisonment . . . for the

punishment of the principal”); §3575(b) (allowing for an

increased sentence for dangerous special offenders “not

disproportionate in severity to the maximum term other-

wise authorized by law for” the underlying felony); see also

§371 (the punishment for conspiracy to commit a misde-

meanor “shall not exceed the maximum punishment pro-

vided for such misdemeanor”); §3651 (allowing for con-

finement and suspension of sentence upon conviction of an

offense not punishable by death or life imprisonment “if

the maximum sentence for such offense is more than six

months”); §3653 (referring to the “maximum probation

period”).

It is instructive that, even in the Sentencing Reform

Act, the concept of the “maximum term of imprisonment”

prescribed for an offense was used in this sense. See §212,

98 Stat. 1991–1992 (new 18 U. S. C. §3559 classifying

offenses based on “the maximum term of imprisonment

authorized . . . by the statute describing the offense”);

§235(b)(1)(F), 98 Stat. 2032 (“The maximum term of im-

prisonment in effect on the effective date [of the Sentenc-

ing Reform Act]” remains in effect for five years after the

effective date “for an offense committed before the effec-

tive date”); §1003(a), id., at 2138 (solicitation to commit a

crime of violence punishable by “one-half the maximum

——————

other potential reasons for departing. §9.94A.390.

14 UNITED STATES v. RODRIQUEZ

Opinion of the Court

term of imprisonment . . . prescribed for the punishment of

the crime solicited”). In light of this established pattern

and the relative newness of sentencing guidelines systems

when the ACCA provision at issue here was added, we

conclude that Congress meant for the concept of the

“maximum term of imprisonment” prescribed by law for

an “offense” to have same meaning in ACCA.

Our decision in United States v. R. L. C., 503 U. S. 291

(1992), is not to the contrary. The statutory provision

there, 18 U. S. C. §5037(c) (2000 ed.), set out the term of

official detention for a juvenile found to be a delinquent.

This provision was amended by the Sentencing Reform

Act, see §214, 98 Stat. 2013, and then amended again two

years later, see §§21(a)(2)–(4), 100 Stat. 3596. As thus

amended, the provision did not refer to the “maximum

term of imprisonment” prescribed for an “offense.” Rather,

the provision focused on the particular juvenile being

sentenced. It provided that, “ ‘in the case of a juvenile who

is less than eighteen years old,’ ” official detention could

not extend beyond the earlier of two dates: the juvenile’s

21st birthday or “ ‘the maximum term of imprisonment

that would be authorized if the juvenile had been tried

and convicted as an adult.’ ” United States v. R. L. C.,

supra, at 295–296, n. 1 (quoting 18 U. S. C. §5037(c)).

Because this provision clearly focuses on the circum-

stances of the particular juvenile and not on the offense,

503 U. S., at 299, it is not analogous to the ACCA provi-

sion that is before us in this case.

* * *

For these reasons, we hold that the “maximum term of

imprisonment . . . prescribed by law” for the state drug con-

victions at issue in this case was the 10-year maximum set by

the applicable recidivist provision. Accordingly, we reverse

the judgment of the Court of Appeals and remand the case for

further proceedings consistent with this opinion.

It is so ordered.

Cite as: 553 U. S. ____ (2008) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–1646

_________________

UNITED STATES, PETITIONER v. GINO RODRIQUEZ

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 19, 2008]

JUSTICE SOUTER, with whom JUSTICE STEVENS and

JUSTICE GINSBURG join, dissenting.

The Court chooses one reading of the Armed Career

Criminal Act (ACCA), 18 U. S. C. §924(e) (2000 ed. and

Supp. V), over another that would make at least as much

sense of the statute’s ambiguous text and would follow the

counsel of a tradition of lenity in construing perplexing

criminal laws. The Court’s choice, moreover, promises

hard times for the trial courts that will have to make the

complex sentencing calculations this decision demands. I

respectfully dissent.

I

The ACCA mandates a 15-year minimum sentence for

anyone convicted of violating §922(g) (2000 ed.) who “has

three previous convictions [for] a serious drug offense”

among his prior crimes. §924(e)(1) (2000 ed., Supp. V).

Section 924(e)(2)(A) (2000 ed.) defines “serious drug of-

fense” as an offense under state or federal drug laws, “for

which a maximum term of imprisonment of ten years or

more is prescribed by law.” This limitation leaves open

the question whether a given conviction qualifies as “seri-

ous” by reference to the penalty for the acts making up the

basic offense, regardless of who commits it, or whether

account must also be taken of further facts (such as an

offender’s criminal record that qualified him for an en-

2 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

hanced penalty at the time of that earlier conviction). If

the first alternative is the reading Congress intended, a

sentencing judge needs to look only to the penalty speci-

fied for the basic offense committed by a first-time

offender. But if the second is the intended one, a judge

may have to consider sentencing variations (for using a

gun, say, or for repeating the offense) set out in other

provisions.

It all turns on the meaning of the word “offense,” to

which the “maximum term” is tied. One can naturally

read “an offense” at a general level as synonymous with “a

crime,” which would tend to rule out reference to maxi-

mums adjusted for other facts; we do not usually speak of

a crime of “burglary while having a criminal record and

while out on bail.” Those details would come up only if we

were speaking about a specific instance, described as a

burglary “committed by someone with a record while out

on bail,” in which case the other facts may “enhance” his

sentence beyond what would have been the maximum

term for burglary. The trouble is that “offense” could

easily refer to a specific occurrence, too; looking at it that

way would make it less jarring to suggest that the circum-

stances around an event that authorize higher penalty

ranges (such as the use of a gun) or the defendant’s history

(like a prior conviction) ought to count in identifying the

maximum penalty for the offense committed on the given

day, at the given place, by the particular offender, in a

given way. Either reading seems to offer a plausible take

on the “offense” for which the ACCA court will have to

identify or calculate “maximum” penalties, under state

law.

We get no help from imagining the circumstances in

which a sentencing court would ask which reading to

adopt. The choice of answer would be easy if the question

arose in the mind of a lawyer whose client is thinking

about a guilty plea and asks what maximum term he

Cite as: 553 U. S. ____ (2008) 3

SOUTER, J., dissenting

faces. See ante, at 4–5. His lawyer knows that he means

the maximum term for him in his case. When a repeat

offender wants to know, counsel understands that the

penalty prescribed for the basic crime without the recidi-

vist add-on is not the baseline for comparison that may

make or break the potential plea agreement. And if the

repeat offender faces a further statutory enhancement for

carrying a gun during the offense, or for being out on bail,

his lawyer would not tell him the maximum term for

repeat offenders without guns or bail restrictions. By the

same token, if the offender faced (as Rodriquez did) a

lower sentence ceiling than what the statute says, by

grace of mandatory sentencing guidelines, his lawyer

would know enough to tell him that his maximum was

capped in this way.

When the issue comes up not in a particular client’s

questions about his own prospects, however, but in a trial

judge’s mind wondering about the meaning of the general

statute, context gives no ready answer. Nor does it break

the tie to say, as the Court does, that taking “maximum”

to refer to the basic offense would mean that a recidivist

with add-ons could be sentenced above the ACCA “maxi-

mum,” see ante, at 4 (“even if respondent had been sen-

tenced to, say, six years’ imprisonment, ‘the maximum

term of imprisonment’ prescribed by law still would have

been five years”). That description, after all, might be just

a verbal quirk showing the statutory design in proper

working order: if Congress meant an offense to be viewed

generically and apart from offender characteristics, a gap

between the maximum for ACCA purposes, and a heavier,

actual sentence accounting for a defendant’s history is to

be expected.1

——————

1 Indeed, if today’s decision is read to mean that enhancements only

for recidivism need to be counted, then it too permits a defendant’s

actual sentence for a predicate conviction to be higher than what a

4 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

The text does not point to any likelier interpretive

choices, and as between these alternatives, it is simply

ambiguous.2 Because I do not believe its ambiguity is

fairly resolved in the Government’s favor, I would affirm.

II

A

None of the Court’s three principal points or ripostes

solves the puzzle. To begin with, there is something arbi-

trary about trying to resolve the ambiguity by rejecting

the maximum-for-basic-offense option while declining to

consider an entire class of offender-based sentencing

adjustments. If offender characteristics are going to count

in identifying the relevant maximum penalty, it would

——————

federal court identifies as an offense’s “maximum term” for ACCA

purposes: actual sentences can outstrip the maximum term for recidi-

vists if nonrecidivism factors such as weapons enhancements can also

raise a given defendant’s statutory ceiling. The Government seems to

accept this possibility, noting that “if a statute is as a formal matter

structured in such a way as to create broad tiers of punishment for

categories of offenders” based on factors other than recidivism, “then

certainly that would seem to be an alternative maximum term of

imprisonment.” Tr. of Oral Arg. 21. The Court, however, does not

address this prospect, despite having seen the same kind of result as a

dealbreaker for Rodriquez’s view.

2 Even adopting the “alternative” of accounting for an offender’s cir-

cumstances and record does not resolve the ambiguity, for this rubric

actually comprises multiple possibilities under its generic umbrella.

Most simply, it might be thought to refer to the actual offender’s

sentencing range as applied by the state court. At the other extreme, it

might mean the maximum for a purely hypothetical “worst” offender

who incurs all possible add-ons. Or perhaps it means a fictional version

of the actual offender, say, one qualifying for some statutory add-ons

but not for any guidelines rules (as the Court would have it); or maybe

one who qualifies for both the statutory and the guidelines departures

for which the actual offender was eligible, even though not all of those

departures were applied by the state court. This menagerie of options

would be multiplied, if a court directly confronted the choice whether to

count enhancements for offender-based factors other than recidivism,

and if so, which.

Cite as: 553 U. S. ____ (2008) 5

SOUTER, J., dissenting

seem to follow that in jurisdictions with mandatory sen-

tencing guidelines, the maximum “prescribed by law”

would be what the guidelines determine. The original

Federal Guidelines, and the mandatory state guidelines I

am aware of, were established under statutory authority

that invests a guideline with the same legal status as a

customary penalty provision. Cf. United States v. R. L. C.,

503 U. S. 291, 297 (1992) (“The answer to any suggestion

that the statutory character of a specific penalty provi-

sion gives it primacy over administrative sentencing

guidelines is that the mandate to apply the Guidelines is

itself statutory”).

The Court tries to deflect the implication of its position

by denying that state sentencing guidelines really do set

maximum penalties, since typically they allow a judge to

depart from them, up or down, when specified conditions

are met. See ante, at 12. But while this is true, the objec-

tion stands. However a particular mandatory guideline

scheme works, it sets a maximum somewhere; if it in-

cludes conditions affecting what would otherwise be a

guideline maximum, the top of the range as affected

should be the relevant maximum on the Court’s reading of

the statute. Indeed, the factual conditions involved are

usually offender characteristics, and if the ACCA is going

to count them under offense-defining statutes or free-

standing recidivism laws, those same facts ought to count

under a guideline rule (whether setting, or authorizing a

departure from, a particular limit). There is no practical

difference whether maximums are adjusted by a statute, a

statutorily mandated guideline, or a guideline-specified

departure; wherever a “prescri[ption] by law” resides, it

ought to be honored by the ACCA court.

If we were to follow the Court’s lights, then, I think we

would have to accept the complication that guidelines

schemes present, and face the difficulty of calculating

6 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

enhanced maximums in guidelines jurisdictions.3 What

we cannot do is to resolve statutory ambiguity by looking

to the sentencing range for an imaginary offender who

meets statutory conditions for altering the basic sentence,

but is artificially stripped of any characteristic that trig-

gers a guideline rule also “prescribed by law.”

B

The more fundamental objection, though, goes to the

Court’s basic conclusion that it makes the better sense to

read the ACCA as resting the federal treatment of recidi-

vists on the maximum sentence authorized by state recidi-

vist schemes, in cases where state law must be considered.

The Court says it would have been natural for Congress to

think in terms of state judgments about repeat criminals

when thinking about what to do at the national level, and

the Court is quite possibly right about this; the fact that

the federal penalty may turn on a state felony classifica-

tion at all shows that Congress was thinking about state

law. But the chances are at least equally good that the

Court is wrong; it is odd to think that Congress would

have piggybacked the federal system on state repeat-

offender schemes, given the extraordinary and irreconcil-

able variations among state policies on the subject.

For one thing, the States’ recidivism schemes vary in

their methods for augmenting sentences. Iowa’s law, for

example, subjects repeat drug offenders to triple penalties,

Iowa Code §124.411(1) (2005); but in Wisconsin a repeat

drug distributor will see his maximum term increased by

a fixed number of years, whatever the starting point,

see, e.g., Wis. Stat. §961.48(1)(b) (2003–2004) (4-year in-

crease for Class H felony such as selling 1 kilogram of

marijuana).

——————

3 In this case, doing so would likely result in affirmance, because as

the Government admits, Rodriquez’s guidelines ceiling was just shy of

five years. Brief for United States 28.

Cite as: 553 U. S. ____ (2008) 7

SOUTER, J., dissenting

More striking than differing structures, though, are the

vast disparities in severity from State to State: under

Massachusetts drug laws, a third conviction for selling a

small amount of marijuana carries a maximum of 2.5

years. Mass. Gen. Laws Ann., ch. 94C, §32C(b) (West

2006). In Delaware, a third conviction means a manda-

tory sentence of life in prison without parole. See Del.

Code Ann., Tit. 11, §4214(b) (2007) (third-felony penalty of

life without parole for violations of non-narcotic controlled

substances law, Tit. 16, §4752 (2004)). That Congress

might have chosen to defer to state-law judgments about

“seriousness” that vary so widely for the same conduct is

at least open to doubt. And that doubt only gets worse

when we notice that even where two States have similar

maximum penalties for a base-level offense, their recidi-

vist enhancements may lead the same conduct to trigger

the ACCA sanction in one State but not the other: on the

Court’s view, an offender’s second conviction for selling,

say, just over two pounds of marijuana will qualify as an

ACCA predicate crime if the conviction occurred in Ari-

zona (maximum of 13 years), Iowa (15 years), Utah (15

years), and the District of Columbia (10 years), for exam-

ple;4 but it will fall short of the mark in California (8

years), Michigan (8 years), and New York (8 years).5 Yet

in each of these States, the base-level offense has a maxi-

——————

4 See Ariz. Rev. Stat. Ann. §13–604(B) (West Supp. 2007) (maximum

set at 13 years); Iowa Code §§124.401(1)(d), 902.9(5), 124.411 (2005)

(basic-offense maximum is tripled to 15 years); Utah Code Ann. §§58–

37–8(1)(b)(ii) (Lexis 2007 Supp. Pamphlet), 76–3–203(2) (Lexis 2003)

(15 years); D. C. Code §§48–904.01(a)(2)(B) (2007 Supp. Pamphlet), 48–

904.08(a) (2001) (basic offense maximum is doubled to 10 years).

5 See Cal. Health & Safety Code Ann. §11360 (West 2007); Cal. Penal

Code Ann. §1170.12(c)(1) (West 2004) (basic-offense maximum is

doubled to 8 years); Mich. Comp. Laws Ann. §§333.7401(2)(d)(iii) (West

Supp. 2008), 333.7413(2) (basic-offense maximum is doubled to 8

years); N. Y. Penal Law Ann. §§221.55 (West 2001), 70.70(3)(b)(ii)

(West Supp. 2008) (maximum set at 8 years).

8 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

mum term falling within a much narrower range (between

3.5 and 5.5 years).6 With this backdrop of state law, the

Government can hardly be heard to say that there would

be something “incongruous” about a federal law targeting

offenses flagged by the penalties assigned only to bare

conduct, without regard to recidivism or other offender

facts. Brief for United States 17.

Nor does it show what the ACCA means by “maximum”

or “offense” when the Court points to language from our

prior cases saying that enhanced recidivist penalties are

not to be viewed as retroactive punishment for past

crimes, for purposes of double-jeopardy and right-to-

counsel enquiries. See ante, at 7 (citing Nichols v. United

States, 511 U. S. 738, 747 (1994), and Gryger v. Burke, 334

U. S. 728, 732 (1948)). The quotations show that a sepa-

rate offense is identified by an enhanced penalty, the

Court says, because from them we can draw the conclusion

that “[w]hen a defendant is given a higher sentence under

a recidivism statute,” nonetheless “100% of the punish-

ment is for the offense of conviction,” leaving nothing to be

attributed to “prior convictions or the defendant’s ‘status

as a recidivist,’ ” ante, at 7.

Still, the fact is that state-law maximums for repeat

offenders sometimes bear hardly any relation to the grav-

ity of the triggering offense, as “three-strikes” laws (not to

mention the Delaware example, above) often show. See,

e.g., Ill. Comp. Stat., ch. 720, §5/33B–1 (2004) (mandatory

life sentence for third “Class X” felony, such as dealing

heroin, without regard to the specific penalty gradation for

——————

6 See Ariz. Rev. Stat. Ann. §§13–3405(B)(5), 13–701(C) (West 2001)

(maximum set at 3.5 years); Cal. Health & Safety Code Ann. §11360

(4 years); D. C. Code §48–904.01(a)(2)(B) (5 years); Iowa Code

§§124.401(1)(d), 902.9(5) (5 years); Mich. Comp. Laws Ann.

§333.7401(2)(d)(iii) (4 years); N. Y. Penal Law Ann. §§221.55,

70.70(2)(a)(ii) (5.5 years); Utah Code Ann. §§58–37–8(1)(b)(ii), 76–3–

203(3) (5 years).

Cite as: 553 U. S. ____ (2008) 9

SOUTER, J., dissenting

the latest Class X felony or to any similarity with prior

offenses); W. Va. Code Ann. §61–11–18(c) (2005) (if of-

fender was “twice before convicted in the United States of

a crime punishable by confinement in a penitentiary,”

third such conviction incurs a mandatory life sentence).

Cf. Ewing v. California, 538 U. S. 11, 30, n. 2 (2003) (plu-

rality opinion) (the “California Legislature therefore made

a deliberate policy decision . . . that the gravity of the new

felony should not be a determinative factor in triggering

the application of the Three Strikes Law” (internal quota-

tion marks omitted)). And there is no denying that the

fact of prior convictions (or a defendant’s recidivist status)

is necessary for the “ ‘stiffened penalty’ ” to be imposed for

“ ‘the latest crime,’ ” ante, at 7, the necessary fact being

specific to the offender, and falling outside the definition of

the offense. This is, after all, what it means to apply an

“enhancement.”

The upshot is that it may have been natural for Con-

gress to think of state recidivism schemes, but it may well

not have been. If there is anything strange about ignoring

enhanced penalties, there is something at least as strange

about a federal recidivist statute that piles enhancement

on enhancement, magnifying the severity of state laws

severe to begin with.

C

Whatever may be the plausibility of the offender-based

reading of the statute as the Court describes it, the Court’s

description avoids a source of serious doubt by glossing

over the practical problems its take on the statute por-

tends. The Court is unmoved by the argument that Con-

gress probably did not expect federal courts applying the

ACCA to master the countless complications of state sen-

tencing schemes; because all jurisdictions provide for

enhanced sentencing some way or another, the Court

thinks there is nothing threatening in the subject, which it

10 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

tries to simplify by offering a few practical pointers. It

notes that there will be cases with a qualifying enhance-

ment “evident from the length of the sentence imposed” by

the state court; sometimes, it says, a court’s “judgment of

conviction will . . . list the maximum possible sentence”; or

the state prosecutor will have “submit[ted] a formal charg-

ing document in order to obtain a recidivist enhancement.”

Ante, at 10. And in cases involving pleas, the Court notes,

“the plea colloquy will very often include a statement by

the trial judge regarding the maximum penalty.” Ibid.

Even when there are no pointers to help, says the Court,

and “the records that may properly be consulted” yield no

clear answer, the worst that can happen will be the Gov-

ernment’s inability to show that a prior conviction quali-

fies. Ante, at 11.

But it is not that easy, and the Court’s pointers are not

much comfort. To start with, even where a “maximum”

sentence is mentioned in state records, how will the ACCA

court be supposed to know that the “maximum” written

down there is what the Court today holds that “maximum”

means? A State’s number below 10 years may refer to the

base-level offense, or it may be the reduced maximum

required by mandatory guidelines; and a number over 10

years may be the product of other enhancements (as for

weapons use or being out on bail at the time of commis-

sion). Having to enquire into just what imposed sentences

or what trial documents really mean would seem to leave

plenty of sorting out for the federal courts to do (or at

least, for federal prosecutors, if they end up with the job).

Another example: State laws are not written to coordi-

nate with the ACCA, and if a State’s specific repeat drug-

offender provisions, say, are supposed to be read together

with its general habitual-offender statutes, the resulting

“maximum” may not be the Court’s “maximum.” Indeed, a

federal court may have to figure out just how those state

statutes may be read together to avoid conflict between

Cite as: 553 U. S. ____ (2008) 11

SOUTER, J., dissenting

them, when the way to avoid conflict is not clear cut even

for the state courts, see, e.g., Goldberg v. State, 282 Ga.

542, 651 S. E. 2d 667 (2007) (general recidivist statute

trumps more specific one; overruling same court’s decision

in Mikell v. State, 270 Ga. 467, 510 S. E. 2d 523 (1999));

State v. Keith, 102 N. M. 462, 697 P. 2d 145 (App. 1985)

(specific trumps general). Cf. Clines v. State, 912 So. 2d

550 (Fla. 2005) (relying on rule of lenity to resolve whether

multiple recidivist categories in same habitual-offender

law could apply to a single sentence).

And there is more: as Rodriquez reminds us, just decid-

ing what counts as a “prior” offense under state law is not

always an easy thing. See People v. Wiley, 9 Cal. 4th 580,

583, 889 P. 2d 541, 542 (1995) (noting difficulty of apply-

ing requirement that “prior” charges have been “brought

and tried separately,” where defendant had been convicted

in trials occurring one day apart and sentenced at the

same court session; in the end, drawing the needed infer-

ence from docket numbers revealed on documents re-

quested from the municipal trial court); id., at 595, 889

P. 2d, at 550 (Werdegar, J., dissenting) (protesting the

court’s solicitation and use of extra-record documents).

Nor would that sort of enquiry get any easier, or be more

likely to benefit from well-settled state law, when a given

State’s law takes account of prior offenses in other States,

see Timothy v. State, 90 P. 3d 177 (Alaska App. 2004)

(holding Oklahoma burglary not to be analogous to one in

Alaska, for purposes of Alaska’s recidivism enhancements,

thus overruling its own 2-year-old decision, Butts v. State,

53 P. 3d 609 (2002)); or, to take a specific example, when

what qualifies a prior offense under one State’s recidivism

scheme is the length of the sentence authorized by another

State’s law (raising the question whether that first State

would see recidivist enhancements the same way the

Court does today). See, e.g., N. J. Stat. Ann. §2C:44–4(c)

(West 2005) (“A conviction in another jurisdiction shall

12 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

constitute a prior conviction of a crime if a sentence of

imprisonment in excess of 6 months was authorized under

the law of the other jurisdiction”); N. M. Stat. Ann. §31–

18–17(D)(2)(b) (2007 Supp.) (defining “prior felony convic-

tion” as, inter alia, a felony “punishable [by] a maximum

term of imprisonment of more than one year”).

A still thornier problem is how federal courts are sup-

posed to treat a State’s procedural safeguards for using

prior convictions at sentencing. Saying that congressional

deference to the States’ judgments about the severity of

crimes also extends to their judgments about recidivism

raises, but does not answer, the question whether such

deference goes only as far as the state courts themselves

could go in raising penalties. (The Court’s disregard of

mandatory sentencing guidelines would seem to suggest

that the answer is no.) In those States that require notice

before the prosecutor can seek a recidivism enhancement,

for example, how will a federal court decide whether the

ACCA counts a prior conviction that would have qualified

for recidivism enhancement if the state prosecutor had not

failed to give timely notice? See, e.g., Commonwealth v.

Fernandes, 430 Mass. 517, 522, 722 N. E. 2d 406, 409

(1999) (noting longstanding rule that the indictment must

give notice of prior convictions “that may subject the de-

fendant to enhanced punishment”).

I could go on, but this is enough to show that the Court’s

interpretation promises that ACCA courts will face highly

complicated enquiries into every State’s or Territory’s

collection of ancillary sentencing laws. That is an uncon-

vincing answer to the ambiguity.

III

At the end of the day, a plainly superior reading may

well be elusive; one favoring the Government certainly is.

It does not defy common English or common sense, after

all, to look at a statute with one penalty range for the

Cite as: 553 U. S. ____ (2008) 13

SOUTER, J., dissenting

basic crime and a higher one for a repeat offender and say

that the former sets the maximum penalty for the “of-

fense”; but neither is it foolish to see the “offense” as de-

fined by its penalty, however that is computed. What I

have said so far suggests that I think the basic-crime view

of “offense” is the better one, but I will concede that the

competing positions are pretty close to evenly matched.

And on that assumption, there is a ready tie-breaker.

The interpretation adopted by both the District Court

and the Court of Appeals is the one counseled by the rule

of lenity, which applies where (as here) we have “ ‘ seiz[ed]

every thing from which aid can be derived,’ ” but are “left

with an ambiguous statute,” United States v. Bass, 404

U. S. 336, 347 (1971) (quoting United States v. Fisher, 2

Cranch 358, 386 (1805) (opinion of the Court by Marshall,

C. J.)). The rule is grounded in “ ‘the instinctive distaste

against men languishing in prison unless the lawmaker

has clearly said they should,’ ” Bass, supra, at 348 (quoting

H. Friendly, Benchmarks 209 (1967)), and we have used it

to resolve questions both about metes and bounds of crimi-

nal conduct and about the severity of sentencing. See

Bifulco v. United States, 447 U. S. 381, 387 (1980) (collect-

ing cases). “This policy of lenity means that the Court will

not interpret a federal criminal statute so as to increase

the penalty that it places on an individual when such an

interpretation can be based on no more than a guess as to

what Congress intended.” Ladner v. United States, 358

U. S. 169, 178 (1958).

This is why lenity should control here. Even recognizing

the best that can be said for the Government’s side, its

position rests on debatable guesswork to send a man to

prison for 180 months, as against 92 months on the basic-

crime view. And the District Courts will be imposing

higher sentences more than doubling the length of the

alternative in a good many other cases, as well.

The “fair warning” that motivates the lenity rule,

14 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

McBoyle v. United States, 283 U. S. 25, 27 (1931) (opinion

of the Court by Holmes, J.), may sometimes be a benign

fiction, see R. L. C., 503 U. S., at 309 (SCALIA, J., concur-

ring), but there is only one reading of this statute with any

realistic chance of giving fair notice of how the ACCA will

apply, and that is the reading the District Court and the

Court of Appeals each chose. Their choice should be ours,

too.