Dean v. United States

(Slip Opinion) OCTOBER TERM, 2008 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

DEAN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 08–5274. Argued March 4, 2009—Decided April 29, 2009

An individual convicted for using or carrying a firearm during and in

relation to any violent or drug trafficking crime, or possessing a fire

arm in furtherance of such a crime, receives a 5-year mandatory

minimum sentence, in addition to the punishment for the underlying

crime. 18 U. S. C. §924(c)(1)(A)(i). The mandatory minimum in

creases to 7 years “if the firearm is brandished” and to 10 years “if

the firearm is discharged.” §§924(c)(1)(A)(ii), (iii).

Petitioner Dean was convicted of conspiring to commit a bank rob

bery and discharging a firearm during an armed robbery. Because

the firearm was “discharged” during the robbery, Dean was sen

tenced to a 10-year mandatory minimum prison term on the firearm

count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge

was accidental, and that §924(c)(1)(A)(iii) requires proof that the de

fendant intended to discharge the firearm. The Eleventh Circuit af

firmed, holding that no proof of intent is required.

Held: Section 924(c)(1)(A)(iii) requires no separate proof of intent. The

10-year mandatory minimum applies if a gun is discharged in the

course of a violent or drug trafficking crime, whether on purpose or

by accident. Pp. 2–9.

(a) Subsection (iii) provides a minimum 10-year sentence “if the

firearm is discharged.” It does not require that the discharge be done

knowingly or intentionally, or otherwise contain words of limitation.

This Court “ordinarily resist[s] reading words or elements into a

statute that do not appear on its face.” Bates v. United States, 522

U. S. 23, 29. Congress’s use of the passive voice further indicates

that subsection (iii) does not require proof of intent. Cf. Watson v.

United States, 552 U. S. ___, ___. The statute’s structure also sug

gests no such limitation. Congress expressly included an intent re

2 DEAN v. UNITED STATES

Syllabus

quirement for the 7-year mandatory minimum for brandishing a fire

arm by separately defining “brandish” to require that the firearm be

displayed “in order to intimidate” another person. §924(c)(4). Con

gress did not, however, separately define “discharge” to include an in

tent requirement. It is generally presumed that Congress acts inten

tionally when including particular language in one section of a

statute but not in another. Russello v. United States, 464 U. S. 16,

23. Contrary to Dean’s contention, the phrase “during and in relation

to” in the opening paragraph of §924(c)(1)(A) does not modify “is dis

charged,” which appears in a separate subsection and in a different

voice than the principal paragraph. “[I]n relation to” is most natu

rally read to modify only the nearby verbs “uses” and “carries.” This

reading will not lead to the absurd results posited by Dean. Pp. 3–6.

(b) Dean argues that subsection (iii) must be limited to intentional

discharges in order to give effect to the statute’s progression of

harsher penalties for increasingly culpable conduct. While it is un

usual to impose criminal punishment for the consequences of purely

accidental conduct, it is not unusual to punish individuals for the un

intended consequences of their unlawful acts. The fact that the dis

charge may be accidental does not mean that the defendant is blame

less. The sentencing enhancement accounts for the risk of harm

resulting from the manner in which the crime is carried out, for

which the defendant is responsible. See Harris v. United States, 536

U. S. 545, 553. An individual bringing a loaded weapon to commit a

crime runs the risk that the gun will discharge accidentally. A gun

shot—whether accidental or intended—increases the risk that others

will be injured, that people will panic, or that violence will be used in

response. It also traumatizes bystanders, as it did here. Pp. 6–9.

(c) Because the statutory text and structure demonstrate that the

discharge provision does not contain an intent requirement, the rule

of lenity is not implicated in this case.

517 F. 3d 1224, affirmed.

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

KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. STEVENS,

J., and BREYER, J., filed dissenting opinions.

Cite as: 556 U. S. ____ (2009) 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. 08–5274

_________________

CHRISTOPHER MICHAEL DEAN, PETITIONER

v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

Accidents happen. Sometimes they happen to individu

als committing crimes with loaded guns. The question

here is whether extra punishment Congress imposed for

the discharge of a gun during certain crimes applies when

the gun goes off accidentally.

I

Title 18 U. S. C. §924(c)(1)(A) criminalizes using or

carrying a firearm during and in relation to any violent or

drug trafficking crime, or possessing a firearm in further

ance of such a crime. An individual convicted of that

offense receives a 5-year mandatory minimum sentence, in

addition to the punishment for the underlying crime.

§924(c)(1)(A)(i). The mandatory minimum increases to 7

years “if the firearm is brandished” and to 10 years “if the

firearm is discharged.” §§924(c)(1)(A)(ii), (iii).

In this case, a masked man entered a bank, waved a

gun, and yelled at everyone to get down. He then walked

behind the teller counter and started removing money

from the teller stations. He grabbed bills with his left

2 DEAN v. UNITED STATES

Opinion of the Court

hand, holding the gun in his right. At one point, he

reached over a teller to remove money from her drawer.

As he was collecting the money, the gun discharged, leav

ing a bullet hole in the partition between two stations.

The robber cursed and dashed out of the bank. Witnesses

later testified that he seemed surprised that the gun had

gone off. No one was hurt. App. 16–19, 24, 27, 47–48, 79.

Police arrested Christopher Michael Dean and Ricardo

Curtis Lopez for the crime. Both defendants were charged

with conspiracy to commit a robbery affecting interstate

commerce, in violation of 18 U. S. C. §1951(a), and aiding

and abetting each other in using, carrying, possessing, and

discharging a firearm during an armed robbery, in viola

tion of §924(c)(1)(A)(iii) and §2. App. 11–12. At trial,

Dean admitted that he had committed the robbery, id., at

76–81, and a jury found him guilty on both the robbery

and firearm counts. The District Court sentenced Dean to

a mandatory minimum term of 10 years in prison on the

firearm count, because the firearm “discharged” during

the robbery. §924(c)(1)(A)(iii); App. 136.

Dean appealed, contending that the discharge was

accidental, and that the sentencing enhancement in

§924(c)(1)(A)(iii) requires proof that the defendant in

tended to discharge the firearm. The Court of Appeals

affirmed, holding that separate proof of intent was not

required. 517 F. 3d 1224, 1229 (CA11 2008). That deci

sion created a conflict among the Circuits over whether

the accidental discharge of a firearm during the specified

crimes gives rise to the 10-year mandatory minimum. See

United States v. Brown, 449 F. 3d 154 (CADC 2006) (hold

ing that it does not). We granted certiorari to resolve that

conflict. 555 U. S. ____ (2008).

II

Section 924(c)(1)(A) provides:

“[A]ny person who, during and in relation to any

Cite as: 556 U. S. ____ (2009) 3

Opinion of the Court

crime of violence or drug trafficking crime . . . uses or

carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or

drug trafficking crime—

“(i) be sentenced to a term of imprisonment of not

less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a

term of imprisonment of not less than 10 years.”

The principal paragraph defines a complete offense and

the subsections “explain how defendants are to ‘be sen

tenced.’ ” Harris v. United States, 536 U. S. 545, 552

(2002). Subsection (i) “sets a catchall minimum” sentence

of not less than five years. Id., at 552–553. Subsections

(ii) and (iii) increase the minimum penalty if the firearm

“is brandished” or “is discharged.” See id., at 553. The

parties disagree over whether §924(c)(1)(A)(iii) contains a

requirement that the defendant intend to discharge the

firearm. We hold that it does not.

A

“We start, as always, with the language of the statute.”

Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of

subsection (iii) provides that a defendant shall be sen

tenced to a minimum of 10 years “if the firearm is dis

charged.” It does not require that the discharge be done

knowingly or intentionally, or otherwise contain words of

limitation. As we explained in Bates v. United States, 522

U. S. 23 (1997), in declining to infer an “ ‘intent to de

fraud’ ” requirement into a statute, “we ordinarily resist

reading words or elements into a statute that do not ap

pear on its face.” Id., at 29.

Congress’s use of the passive voice further indicates that

subsection (iii) does not require proof of intent. The pas

4 DEAN v. UNITED STATES

Opinion of the Court

sive voice focuses on an event that occurs without respect

to a specific actor, and therefore without respect to any

actor’s intent or culpability. Cf. Watson v. United States,

552 U. S. ___, ___ (2007) (slip op., at 7) (use of passive

voice in statutory phrase “to be used” in 18 U. S. C.

§924(d)(1) reflects “agnosticism . . . about who does the

using”). It is whether something happened—not how or

why it happened—that matters.

The structure of the statute also suggests that subsec

tion (iii) is not limited to the intentional discharge of a

firearm. Subsection (ii) provides a 7-year mandatory

minimum sentence if the firearm “is brandished.” Con

gress expressly included an intent requirement for that

provision, by defining “brandish” to mean “to display all or

part of the firearm, or otherwise make the presence of the

firearm known to another person, in order to intimidate

that person.” §924(c)(4) (emphasis added). The defendant

must have intended to brandish the firearm, because the

brandishing must have been done for a specific purpose.

Congress did not, however, separately define “discharge”

to include an intent requirement. “[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.” Russello v. United

States, 464 U. S. 16, 23 (1983) (internal quotation marks

omitted).

Dean argues that the statute is not silent on the ques

tion presented. Congress, he contends, included an intent

element in the opening paragraph of §924(c)(1)(A), and

that element extends to the sentencing enhancements.

Section 924(c)(1)(A) criminalizes using or carrying a fire

arm “during and in relation to” any violent or drug traf

ficking crime. In Smith v. United States, 508 U. S. 223

(1993), we stated that the phrase “in relation to” means

“that the firearm must have some purpose or effect with

Cite as: 556 U. S. ____ (2009) 5

Opinion of the Court

respect to the drug trafficking crime; its presence or in

volvement cannot be the result of accident or coincidence.”

Id., at 238. Dean argues that the adverbial phrase thus

necessarily embodies an intent requirement, and that the

phrase modifies all the verbs in the statute—not only use,

carry, and possess, but also brandish and discharge. Such

a reading requires that a perpetrator knowingly discharge

the firearm for the enhancement to apply. If the discharge

is accidental, Dean argues, it is not “in relation to” the

underlying crime.

The most natural reading of the statute, however, is

that “in relation to” modifies only the nearby verbs “uses”

and “carries.” The next verb—“possesses”—is modified by

its own adverbial clause, “in furtherance of.” The last two

verbs—“is brandished” and “is discharged”—appear in

separate subsections and are in a different voice than the

verbs in the principal paragraph. There is no basis for

reading “in relation to” to extend all the way down to

modify “is discharged.” The better reading of the statute

is that the adverbial phrases in the opening paragraph—

“in relation to” and “in furtherance of”—modify their

respective nearby verbs, and that neither phrase extends

to the sentencing factors.

But, Dean argues, such a reading will lead to absurd

results. The discharge provision on its face contains no

temporal or causal limitations. In the absence of an intent

requirement, the enhancement would apply “regardless of

when the actions occur, or by whom or for what reason

they are taken.” Brief for Petitioner 11–12. It would, for

example, apply if the gun used during the crime were

discharged “weeks (or years) before or after the crime.”

Reply Brief for Petitioner 11.

We do not agree that implying an intent requirement is

necessary to address such concerns. As the Government

recognizes, sentencing factors such as the one here “often

involve . . . special features of the manner in which a basic

6 DEAN v. UNITED STATES

Opinion of the Court

crime was carried out.” Brief for United States 29 (quot

ing Harris, 536 U. S., at 553; internal quotation marks

omitted). The basic crime here is using or carrying a

firearm during and in relation to a violent or drug traffick

ing crime, or possessing a firearm in furtherance of any

such crime. Fanciful hypotheticals testing whether the

discharge was a “special featur[e]” of how the “basic crime

was carried out,” Harris, 536 U. S., at 553 (internal quota

tion marks omitted), are best addressed in those terms,

not by contorting and stretching the statutory language to

imply an intent requirement.

B

Dean further argues that even if the statute is viewed as

silent on the intent question, that silence compels a ruling

in his favor. There is, he notes, a presumption that crimi

nal prohibitions include a requirement that the Govern

ment prove the defendant intended the conduct made

criminal. In light of this presumption, we have “on a

number of occasions read a state-of-mind component into

an offense even when the statutory definition did not in

terms so provide.” United States v. United States Gypsum

Co., 438 U. S. 422, 437 (1978). “[S]ome indication of con

gressional intent, express or implied, is required to dis

pense with mens rea as an element of a crime.” Staples v.

United States, 511 U. S. 600, 606 (1994).

Dean argues that the presumption is especially strong

in this case, given the structure and purpose of the stat

ute. In his view, the three subsections are intended to

provide harsher penalties for increasingly culpable con

duct: a 5-year minimum for using, carrying, or possessing

a firearm; a 7-year minimum for brandishing a firearm;

and a 10-year minimum for discharging a firearm. Incor

porating an intent requirement into the discharge provi

sion is necessary to give effect to that progression, because

an accidental discharge is less culpable than intentional

Cite as: 556 U. S. ____ (2009) 7

Opinion of the Court

brandishment. See Brown, 449 F. 3d, at 156.

It is unusual to impose criminal punishment for the

consequences of purely accidental conduct. But it is not

unusual to punish individuals for the unintended conse

quences of their unlawful acts. See 2 W. LaFave, Sub

stantive Criminal Law §14.4, pp. 436–437 (2d ed. 2003).

The felony-murder rule is a familiar example: If a defen

dant commits an unintended homicide while committing

another felony, the defendant can be convicted of murder.

See 18 U. S. C. §1111. The Sentencing Guidelines reflect

the same principle. See United States Sentencing Com

mission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008)

(USSG) (increasing offense level for aggravated assault

according to the seriousness of the injury); §2D2.3 (in

creasing offense level for operating or directing the opera

tion of a common carrier under the influence of alcohol or

drugs if death or serious bodily injury results).

Blackstone expressed the idea in the following terms:

“[I]f any accidental mischief happens to follow from

the performance of a lawful act, the party stands ex

cused from all guilt: but if a man be doing any thing

unlawful, and a consequence ensues which he did not

foresee or intend, as the death of a man or the like, his

want of foresight shall be no excuse; for, being guilty

of one offence, in doing antecedently what is in itself

unlawful, he is criminally guilty of whatever conse

quence may follow the first misbehaviour.” 4 W.

Blackstone, Commentaries on the Laws of England

26–27 (1769).

Here the defendant is already guilty of unlawful conduct

twice over: a violent or drug trafficking offense and the

use, carrying, or possession of a firearm in the course of

that offense. That unlawful conduct was not an accident.

See Smith, 508 U. S., at 238.

The fact that the actual discharge of a gun covered

8 DEAN v. UNITED STATES

Opinion of the Court

under §924(c)(1)(A)(iii) may be accidental does not mean

that the defendant is blameless. The sentencing en

hancement in subsection (iii) accounts for the risk of harm

resulting from the manner in which the crime is carried

out, for which the defendant is responsible. See Harris,

supra, at 553. An individual who brings a loaded weapon

to commit a crime runs the risk that the gun will dis

charge accidentally. A gunshot in such circumstances—

whether accidental or intended—increases the risk that

others will be injured, that people will panic, or that vio

lence (with its own danger to those nearby) will be used in

response. Those criminals wishing to avoid the penalty for

an inadvertent discharge can lock or unload the firearm,

handle it with care during the underlying violent or drug

trafficking crime, leave the gun at home, or—best yet—

avoid committing the felony in the first place.

JUSTICE STEVENS contends that the statute should be

read to require a showing of intent because harm resulting

from a discharge may be punishable under other provi

sions, such as the Sentencing Guidelines (but only if “bod

ily injury” results). Post, at 6 (dissenting opinion) (citing

USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(iii)

elected to impose a mandatory term, without regard to

more generally applicable sentencing provisions. Punish

ment available under such provisions therefore does not

suggest that the statute at issue here is limited to inten

tional discharges.

And although the point is not relevant under the correct

reading of the statute, it is wrong to assert that the gun

shot here “caused no harm.” Post, at 1. By pure luck, no

one was killed or wounded. But the gunshot plainly added

to the trauma experienced by those held during the armed

robbery. See, e.g., App. 22 (the gunshot “shook us all”);

ibid. (“Melissa in the lobby popped up and said, ‘oh, my

God, has he shot Nora?’ ”).

Cite as: 556 U. S. ____ (2009) 9

Opinion of the Court

C

Dean finally argues that any doubts about the proper

interpretation of the statute should be resolved in his

favor under the rule of lenity. See Brief for Petitioner 6.

“The simple existence of some statutory ambiguity, how

ever, is not sufficient to warrant application of that rule,

for most statutes are ambiguous to some degree.” Mus

carello v. United States, 524 U. S. 125, 138 (1998); see also

Smith, supra, at 239 (“The mere possibility of articulating

a narrower construction, however, does not by itself make

the rule of lenity applicable”). “To invoke the rule, we

must conclude that there is a grievous ambiguity or uncer

tainty in the statute.” Muscarello, supra, at 138–139

(internal quotation marks omitted). In this case, the

statutory text and structure convince us that the dis

charge provision does not contain an intent requirement.

Dean’s contrary arguments are not enough to render the

statute grievously ambiguous.

* * *

Section 924(c)(1)(A)(iii) requires no separate proof of

intent. The 10-year mandatory minimum applies if a gun

is discharged in the course of a violent or drug traffick-

ing crime, whether on purpose or by accident. The judg

ment of the Court of Appeals for the Eleventh Circuit is

affirmed.

It is so ordered.

Cite as: 556 U. S. ____ (2009) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–5274

_________________

CHRISTOPHER MICHAEL DEAN, PETITIONER

v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009]

JUSTICE STEVENS, dissenting.

Accidents happen, but they seldom give rise to crimi

nal liability. Indeed, if they cause no harm they seldom

give rise to any liability. The Court today nevertheless

holds that petitioner is subject to a mandatory additional

sentence—a species of criminal liability—for an accident

that caused no harm. For two reasons, 18 U. S. C.

§924(c)(1)(A)(iii) should not be so construed. First, the

structure of §924(c)(1)(A) suggests that Congress intended

to provide escalating sentences for increasingly culpable

conduct and that the discharge provision therefore applies

only to intentional discharges. Second, even if the statute

did not affirmatively support that inference, the common

law presumption that provisions imposing criminal penal

ties require proof of mens rea would lead to the same

conclusion. Cf. United States v. X-Citement Video, Inc.,

513 U. S. 64, 70 (1994). Accordingly, I would hold that the

Court of Appeals erred in concluding that petitioner could

be sentenced under §924(c)(1)(A)(iii) absent evidence that

he intended to discharge his gun.

I

It is clear from the structure and history of §924(c)(1)(A)

that Congress intended §924(c)(1)(A)(iii) to apply only to

intentional discharges. The statute’s structure supports

2 DEAN v. UNITED STATES

STEVENS, J., dissenting

the inference that Congress intended to impose increas

ingly harsh punishment for increasingly culpable conduct.

The lesser enhancements for carrying or brandishing

provided by clauses (i) and (ii) clearly require proof of

intent. Clause (i) imposes a 5-year mandatory minimum

sentence for using or carrying a firearm “during and in

relation to” a crime of violence or drug trafficking offense,

or possessing a firearm “in furtherance” of such an offense.

As we have said before, the provision’s relational terms

convey that it does not reach inadvertent conduct. See

Smith v. United States, 508 U. S. 223, 238 (1993) (“The

phrase ‘in relation to’ . . . at a minimum, clarifies that the

firearm must have some purpose or effect with respect to

the drug trafficking crime; its presence or involvement

cannot be the result of accident or coincidence”). Simi

larly, clause (ii) mandates an enhanced penalty for bran

dishing a firearm only upon proof that a defendant had

the specific intent to intimidate. See §924(c)(4). In that

context, the most natural reading of clause (iii), which

imposes the greatest mandatory penalty, is that it pro

vides additional punishment for the more culpable act of

intentional discharge.1

The legislative history also indicates that Congress

intended to impose an enhanced penalty only for inten

tional discharge. In Bailey v. United States, 516 U. S. 137,

148 (1995), the Court held that “use” of a firearm for

purposes of §924(c)(1) required some type of “active em

ployment,” such as “brandishing, displaying, bartering,

striking with, and, most obviously, firing or attempting to

fire.” Congress responded to Bailey by amending

——————

1 Contrary to the Court’s suggestion, ante, at 4, Congress’ provision of

a specific intent element for brandishing and not for discharge only

supports the conclusion that Congress did not intend enhancements

under the discharge provision to require proof of specific intent; it

supports no inference that Congress also intended to eliminate any

general intent requirement and thereby make offenders strictly liable.

Cite as: 556 U. S. ____ (2009) 3

STEVENS, J., dissenting

§924(c)(1), making it an offense to “posses[s]” a firearm “in

furtherance of” one of the predicate offenses and adding

sentencing enhancements for brandishing and discharge.

See Pub. L. 105–386, §1(2)(1), 112 Stat. 3469; see also 144

Cong. Rec. 26608 (1998) (remarks of Sen. DeWine) (refer

ring to the amendments as the “Bailey Fix Act”). Given

the close relationship between the Bailey decision and

Congress’ enactment of the brandishing and discharge

provisions, those terms are best read as codifying some of

the more culpable among the “active employments” of a

firearm that the Court identified in Bailey.

II

Even if there were no evidence that Congress intended

§924(c)(1)(A)(iii) to apply only to intentional discharges,

the presumption that criminal provisions include an intent

requirement would lead me to the same conclusion. Con

sistent with the common-law tradition, the requirement of

mens rea has long been the rule of our criminal jurispru

dence. See United States v. United States Gypsum Co.,

438 U. S. 422 (1978). The concept of crime as a “concur

rence of an evil-meaning mind with an evil-doing hand . . .

took deep and early root in American soil.” Morissette v.

United States, 342 U. S. 246, 251–252 (1952). Legislating

against that backdrop, States often omitted intent ele

ments when codifying the criminal law, and “courts as

sumed that the omission did not signify disapproval of the

principle but merely recognized that intent was so inher

ent in the idea of the offense that it required no statutory

affirmation.” Id., at 252. Similarly, absent a clear state

ment by Congress that it intended to create a strict

liability offense, a mens rea requirement has generally

been presumed in federal statutes. See id., at 273; Staples

v. United States, 511 U. S. 600, 605–606 (1994). With only

a few narrowly delineated exceptions for such crimes as

statutory rape and public welfare offenses, the presump

4 DEAN v. UNITED STATES

STEVENS, J., dissenting

tion remains the rule today. See Morissette, 342 U. S., at

251–254, and n. 8; see also Staples, 511 U. S., at 606–607

(discussing United States v. Balint, 258 U. S. 250 (1922)).

Although mandatory minimum sentencing provisions

are of too recent genesis to have any common-law pedi

gree, see Harris v. United States, 536 U. S. 545, 579, 581,

n. 5 (2002) (THOMAS, J., dissenting), there is no sensible

reason for treating them differently from offense elements

for purposes of the presumption of mens rea. Sentencing

provisions of this type have substantially the same effect

on a defendant’s liberty as aggravated offense provisions.

Although a sentencing judge has discretion to issue sen

tences under §924(c)(1)(A) within the substantial range

bounded on one end by the 5-, 7-, or 10-year mandatory

minimum sentence and on the other by the statutory

maximum sentence, judges in practice rarely exercise that

discretion. As JUSTICE THOMAS noted in Harris, “the

sentence imposed when a defendant is found only to have

‘carried’ a firearm ‘in relation to’ a drug trafficking offense

appears to be, almost uniformly, if not invariably, five

years,” and “those found to have brandished a firearm

typically, if not always, are sentenced only to 7 years in

prison while those found to have discharged a firearm are

sentenced only to 10 years.” Id., at 578 (dissenting opin

ion); see also United States Sentencing Commission,

Guidelines Manual §2K2.4, comment., n. 2 (Nov. 2008)

(USSG) (stating that the minimum sentence required by

§924(c)(1)(A) is the guideline sentence and any increase is

an upward departure). If anything, imposition of a man

datory minimum sentence under §924(c)(1)(A) will likely

have a greater effect on a defendant’s liberty than will

conviction for another offense because, unlike sentences

for most federal offenses, sentences imposed pursuant to

that section must be served consecutively to any other

sentence. See §924(c)(1)(D)(ii).

As the foregoing shows, mandatory minimum sentenc

Cite as: 556 U. S. ____ (2009) 5

STEVENS, J., dissenting

ing provisions are in effect no different from aggravated

offense provisions. The common-law tradition of requiring

proof of mens rea to establish criminal culpability should

thus apply equally to such sentencing factors. Absent a

clear indication that Congress intended to create a strict-

liability enhancement, courts should presume that a pro-

vision that mandates enhanced criminal penalties re-

quires proof of intent. This conclusion is bolstered by the

fact that we have long applied the rule of lenity—which is

similar to the mens rea rule in both origin and purpose—to

provisions that increase criminal penalties as well as

those that criminalize conduct. See United States v.

R. L. C., 503 U. S. 291, 305 (1992) (plurality opinion);

Bifulco v. United States, 447 U. S. 381, 387 (1980); Ladner

v. United States, 358 U. S. 169, 178 (1958).2 Accordingly, I

would apply the presumption in this case and avoid the

strange result of imposing a substantially harsher penalty

for an act caused not by an “evil-meaning mind” but by a

clumsy hand.

The majority urges the result in this case is not unusual

because legislatures commonly “punish individuals for the

unintended consequences of their unlawful acts,” ante, at

7, but the collection of examples that follows this assertion

——————

2 To be sure, there are also inquiries for which the Court has said that

sentencing provisions are different. In Harris v. United States, 536

U. S. 545, 557 (2002) (plurality opinion), and McMillan v. Pennsyl-

vania, 477 U. S. 79, 87–88 (1986), the Court distinguished for purposes

of constitutional analysis mandatory minimum sentencing schemes

from offense elements and provisions that increase the statutory

maximum sentence. I continue to agree with JUSTICE THOMAS’ compel-

ling dissent in Harris, in which he rejected the distinction on the

ground that mandatory minimum sentencing provisions have at least

as significant an effect on a defendant’s liberty as additional convic-

tions or statutory maximum provisions. 536 U. S., at 577–578. The

logic of treating these provisions similarly is buttressed by our subse-

quent decision in United States v. Booker, 543 U. S. 220, 233–234

(2005).

6 DEAN v. UNITED STATES

STEVENS, J., dissenting

is telling. The Court cites the felony-murder rule, 18

U. S. C. §1111, and Sentencing Guidelines provisions that

permit increased punishment based on the seriousness of

the harm caused by the predicate act, see USSG

§2A2.2(b)(3) (increasing the offense level for aggravated

assault according to the seriousness of the injury); §2D2.3

(increasing the offense level for operating a common car

rier under the influence of alcohol or drugs if death or

serious injury results). These examples have in common

the provision of enhanced penalties for the infliction of

some additional harm. By contrast, §924(c)(1)(A)(iii)

punishes discharges whether or not any harm is realized.

Additionally, in each of the majority’s examples Congress

or the Sentencing Commission made explicit its intent to

punish the resulting harm regardless of the perpetrator’s

mens rea. Section 924(c)(1)(A)(iii) contains no analogous

statement. For these reasons, §924(c)(1)(A)(iii) is readily

distinguishable from the provisions the majority cites.

Contrary to the majority’s suggestion, the existence of

provisions that penalize the unintended consequences of

felonious conduct underscores the reasonableness of read

ing §924(c)(1)(A)(iii) to require proof of intent. When harm

results from a firearm discharge during the commission of

a violent felony or drug trafficking offense, the defendant

will be punishable pursuant to USSG §2B3.1(b)(3) (in

creasing the offense level for robbery according to the

resulting degree of bodily injury), the felony-murder rule,

or a similar provision. That a defendant will be subject to

punishment for the harm resulting from a discharge

whether or not he is also subject to the enhanced penalty

imposed by §924(c)(1)(A)(iii) indicates that the latter

provision was intended to serve a different purpose—

namely, to punish the more culpable act of intentional

discharge.

Cite as: 556 U. S. ____ (2009) 7

STEVENS, J., dissenting

III

In sum, the structure and history of §924(c)(1)(A) indi

cate that Congress meant to impose the more substantial

penalty provided by clause (iii) only in cases of intentional

discharge. Were the statute unclear in that regard, I

would reach the same conclusion by applying the pre

sumption that Congress intended to include a mens rea

requirement. Mandatory sentencing provisions are not

meaningfully distinguishable from statutes defining

crimes to which we have previously applied the presump

tion; the rule of Morissette and Staples and not the felony

murder rule should therefore guide our analysis. Because

there is insufficient evidence to rebut the presumption in

this case, I respectfully dissent.

Cite as: 556 U. S. ____ (2009) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–5274

_________________

CHRISTOPHER MICHAEL DEAN, PETITIONER

v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[April 29, 2009]

JUSTICE BREYER, dissenting.

For many of the reasons that JUSTICE STEVENS sets

forth, I believe the statutory provision before us applies to

intentional, but not to accidental, discharges of firearms.

As JUSTICE STEVENS points out, this Court in Bailey v.

United States, 516 U. S. 137, 148 (1995), held that simple

possession of a firearm, without some type of “active em

ployment,” such as “brandishing, displaying, bartering,

striking with, and, most obviously, firing or attempting to

fire,” did not constitute “use” of a firearm. See ante, at 2

(dissenting opinion). It seems possible, if not likely, that

Congress, in this statute, amended then-existing law by

criminalizing the “simple possession” that Bailey found

insufficient and then imposed a set of ever more severe

mandatory sentences for the conduct that the Court listed

in Bailey when it considered ways in which an offender

might use a firearm. See ante, at 2–3. If so, the statutory

words “is discharged,” 18 U. S. C. §924(c)(1)(A)(iii), refer to

what Bailey called “firing,” and they do not encompass an

accidental discharge.

I concede that the Court lists strong arguments to the

contrary. But, in my view, the “rule of lenity” tips the

balance against the majority’s position. The “rule of len

ity” as ordinarily applied reflects the law’s insistence that

a criminal statute provide “fair warning . . . of what the

2 DEAN v. UNITED STATES

BREYER, J., dissenting

law intends to do if a certain line is passed.” United States

v. Bass, 404 U. S. 336, 348 (1971) (internal quotation

marks omitted). But here, where a mandatory minimum

sentence is at issue, its application reflects an additional

consideration, namely, that its application will likely

produce an interpretation that hews more closely to Con

gress’ sentencing intent.

That is because, in the case of a mandatory minimum,

an interpretation that errs on the side of exclusion (an

interpretive error on the side of leniency) still permits the

sentencing judge to impose a sentence similar to, perhaps

close to, the statutory sentence even if that sentence (be

cause of the court’s interpretation of the statute) is not

legislatively required. See, e.g., United States Sentencing

Commission, Guidelines Manual §2B3.1(b)(2) (Nov. 2008)

(Specific Offense Characteristics) (possibly calling for a 7

to-9 year increase in the sentencing range in a case like

this one). The sentencing judge is most likely to give a low

non-Guidelines sentence in an unusual case—where the

nature of the accident, for example, makes clear that the

offender was not responsible and perhaps that the dis

charge put no one at risk. See, e.g., Koon v. United States,

518 U. S. 81, 92–94 (1996). And, of course, the unusual

nature of such a case means it is the kind of case that

Congress did not have in mind when it enacted the stat

ute. Moreover, an error that excludes (erroneously) a set

of instances Congress meant to include (such as accidental

discharge) could lead the Sentencing Commission to focus

on those cases and exercise its investigative and judg

mental powers to decide how those cases should be han

dled. This investigation would, in turn, make available to

Congress a body of evidence and analysis that will help it

reconsider the statute if it wishes to do so.

On the other hand, an interpretation that errs on the

side of inclusion requires imposing 10 years of additional

imprisonment on individuals whom Congress would not

Cite as: 556 U. S. ____ (2009) 3

BREYER, J., dissenting

have intended to punish so harshly. Such an interpreta

tion would prevent a sentencing court from giving a lower

sentence even in an unusual case, for example, where the

accident is unintended, unforeseeable, and imposes no

additional risk. And such an interpretation, by errone

ously taking discretion away from the sentencing judge,

would ensure results that depart dramatically from those

Congress would have intended. Cf. Harris v. United

States, 536 U. S. 545, 570 (2002) (BREYER, J., concurring

in part and concurring in judgment) (“statutory manda

tory minimums generally deny the judge the legal power

to depart downward, no matter how unusual the special

circumstances that call for leniency”). Moreover, because

such unusual cases are (by definition) rare, these errors

would provide little incentive to the Sentencing Commis

sion or Congress to reconsider the statute.

These interpretive asymmetries give the rule of lenity

special force in the context of mandatory minimum provi

sions. Because I believe the discharge provision here is

sufficiently ambiguous to warrant the application of that

rule, I respectfully dissent.