Brief for the United States — Jones v. United States

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FILED

\ )

— JUL 20 1996

No. 97-6203 —.— = HE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1997

NATHANIEL JONES, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

This Court has limited its grant of certiorari to the

following questions:

1. Does 18 U.S.C. 2119(1)-(8) describe sentencing

factors or elements of the offense? |

2. If 18 U.S.C. 2119(1)-(3) sets forth sentencing

factors, is the statute constitutional?

(1)

TABLE OF CONTENTS

Argument:

II.

With Three Sentencing Provisions

A. The language and structure of Section

2119 create a single carjacking offense

with graduated punishments

supports the one-offense construction .......

C. The bodily harm that results to victims

is a traditional factor in determining the

severity of criminal sentences

D. To the extent they are relevant, later

amendments to Section 2119 also support

the one-offense construetion

1. Provision for capital punishment .......

2. Modification of the definition of

“serious bodily injury” .........c..0cce0eee000

E. The rule of lenity does not support adop-

tion of petitioner’s construction of Section

Nothing In The Constitution Requires This

Court To Override Congress's Establishment

Of Graduated Sentencing Ranges For a Single

STII | ciccesncestavtscsdncccecsccsssccsccccccees

A. The Court’s constitutional analysis in

Almendarez-Torres controls the decision

| —

B. The range of available sentences under

Section 2119 is not unconstitutional ..........

(III)

6 — —

* S

Cases—Continued: Page

8 Mullaney v. Wilbur, 421 U.S. 684 (1975) 37, 38, 46

Table of Contents—Continued: Page Muscarello v. United States, 118 S. Ct. 1911

C. The traditional sentencing factors at 11 A kt Se ae Oe 36

issue in this case are not constitutionally Patterson v. New York, 432 U.S. 197 (1977) . 38, 39, 48

different from the recidivism factor at Payne v. Tennessee, 501 U.S. 808 (1991) . . 23

issue in Almendarez- Torres 42 Peretz v. United States, 501 U.S. 923 (1991) ........... 93

D. Constitutional values provide no reason Proffitt v. Florida, 428 U.S. 242 (1976) 26

for treating any factor that increases the Spaziano v. Florida, 468 U.S. 447 (1984) 32. 45

— — 1, Staples v. United States, 511 U.S. 600 (1994) 14

ys nN nee * 0 , 511 U.S. 600 (1994)

T0000 45 Tison v. Arizona, 481 U.S. 137 (1987) ———.— 31, 32

a ˙ IE Se OI ts.” > EI CAI 50 United States v. Eichman, 496 U.S. 310 (1990) ...... 48

„„ i eens — r ——

— — — 14

TABLE OF AUTHORITIES United States v. R. L. C., 503 U.S. 291 (1992) .......... 46

Cases: United States v. Rezaq, 134 F.3d 1121 (D.C. Cir.

Almendarez-Torres v. United States, 118 S. Ct. 1998), petition for cert. pending, No. 97-9019

r a SPE BF ALS es passim GI TE Vo SOD cccenccnssessascsenteccsnessccnsqusseneesvensececs 30

Cabana v. Bullock, 474 U.S. 376 (1986) 31 United States v. Rivera-Gomez, 67 F.3d 993 (ist

Caron v. United States, 118 S. Ct. 2007 (1998) ........ 36 Fee 16, 30

Chapman v. United States, 500 U.S. 453 (1991) 48 United States v. Rivera, 83 F.3d 542 (Ist Cir.

Coker v. Georgia, 433 U.S. 584 (1977) 31 rr 33, 34, 35

Edwards v. United States, 118 S. Ct. 1475 (1998)... 46 United States v. Rumney, 867 F.2d 714 (Ist Cir.),

Enmund v. Florida, 458 U.S. 782 (1982) 31 cert. denied, 491 U.S. 908 (1989) . . 19

Hamling v. United States, 418 U.S. 87 (1974) ......... 13 United States v. Ryan, 9 F.3d 660 (1993), modified

Hildwin v. Flordia, 490 U.S. 638 (1989) .......... 31-32, 45 on other grounds, 41 F.d 361 (8th Cir. 1994), cert.

Holloway v. United States, cert. granted, No. denied, 514 U.S. 1082 (1995) 19

D T 2 United States v. Vazquez-Rivera, 135 F.3d 172 (lst

Hopkins v. Reeves, No. 96-1693 (June 8, 1998) ......... 31 een Rear Oe 27

Liparota v. United States, 471 U.S. 419 (1985) ....... 14 United States v. Watts, 117 8. Ct. 633 (1997) . 14, 46, 49

McMillan v. Pennsylvania, 477 U.S. 79 (1986) .. passim United States v. Williams, 51 F.3d 1004 (11th Cir.),

Miller v. Florida, 482 U.S. 423 (1987) ............ 24, 26, 46 cert. denied, 516 U.S. 900 (1995) . . 16, 30

Mistretta v. United States, 488 U.S. 361 (1989) 13 Walton v. Arizona, 497 U.S. 639 (1990) 31, 45

Monge v. California, No. 97-6146 (June 26, Williams v. Oklahoma, 358 U.S. 576 (1959) ............ 23

— ee eS a ee passim Winship, In re, 397 U.S. 358 (1970) . 13

Moskal v. United States, 498 U.S. 103 (1990) ......... 36 Witte v. United States, 515 U.S. 389 (1995) ......... 13, 46

Montana v. Egelhoff, 518 U.S. 37 (1996) .............. 41, 48

VI VII

18 U.S.C. 2119(1) (Supp. IV 1992) ...........e000+0- 5, 11, 37, 47

Constitution, statutes and regulation: Page Statutes and regulation—Continued: Page

U.S. Const.: 18 U.S.C. 2119(2) (Supp. IV 1992) . . . passim

Art. I, § 9, Cl. 3 (Ex Post Facto Clause) . 12, 46, 48 n 30

en PR —— 82, 48 18 U.S.C. 211903) (Supp. IV 1992) . . 11, 17, 20, 27,

Anti Car Theft Act of 1992, Pub. L. No. 102-519, 28, 32, 33, 47

BOS Diet. SBBE .nccrecccsceccsesecacossrsssccqnesosscnscesesoeecees 20, 21 18 U.S.C. 2261(b) (1994 & Supp. II 1996)... . 13

Carjacking Correction Act of 1996, Pub. L. No. 18 U.S.C. 2332 (1994 & Supp. II 1996) . .. . . . . . 19

104-217, 8 2, 110 Stat. 3020 ...... ...... ... . 3. 34. 35 ——K 14

Federal Death Penalty Act of 1994, Pub. L. No. FP 13, 46

103-322, Tit. VI. § 60003(a)(14), 108 . 29

Stat. 1970 ........—.—.—.—.—.—. 2. 29 ———⁵ — 30

8 U.S.C. 1824) (1994 & Supp. II 1996) 18 Rn 29

8 U.S.C. 1324(a)(1)(A) (1994 & Supp. II 1996)............. 18 18 U.S.C. 3591 (a(2)(A)-(D) .......ccececeserereessseeeneenenees 29, 32

8 U.S.C. 1324(a)(1(B) (1994 & Supp. II 1996)............. 18 18 U.S.C. 3592 (1994 & Supp. II 1996) . 26

8 U.S.C. 1326(a)(1) (Supp. II 1998... 25 j — 29

8 U.S.C. 1326(b) (Supp. II 1996)... 13, 45 1 — ů ů ——— 29

rr 5 r A TE a a 14

18 U.S.C. 247 (1994 & Supp. II 1998)... 18 AE 46

1 —— — 18 21 U.S.C. 841(b) (1994 & Supp. II 1996) ..........00000 13, 26

0 eee aes 18 OE IN GG —— — — 13

18 U.S.C. 408(a) (1900 ——ſ' ——0 . ——2ͤ—v 13 49 U.S.C. App. 1472(m) (1988) . . . . . . 30

18 U.S.C. 831(b) (1994 & Supp. II 1996) ... 13 49 U.S.C. App. 1473(c)(2) (1988) . . . . . . 30

TTT 19 K — 30

18 U.S.C. 922(g) (1994 & Supp. II 1996)... ..... 25 i ——— 24

18 U.S.C. 924(c) (1988 & Supp. IV 1992) 3, 4, 6 Sentencing Guidelines:

0. —-—t᷑ eee 42 r 24

18 U.S.C. App. 1202 (a)(1) (1982) ...... 19 1 26

18 U.S.C. 1347 ———ů ———.—..—ꝗ—ꝙ—0—nt 19 r aT ERS Na a 24

18 U.S.C, 2113 (1994 & Supp. II 1996) ...... 17 — 24

18 U.S.C. 2118 f ————g..ꝗoƷñ—;'2—'7ꝙ——————————9p 17 RS ee 24

18 U.S.C. 2113(b) (1994 & Supp. II 1996) ...... 17 c 24

1 — K 17 ——— —-—-—-— 42

3 —— 17 11——.—— 24

18 U.S.C. 2113(€) ...... 17 111 —̃ — — 24

r x 17 8 ES EE TR . ee a 7

18 U.S.C. 2D 1B(C)(1) ——9.—..——g9ô—tÆ⅛E—k.—— :Ä—2:V0⸗ͤ 17 r 14

18 U.S.C. 2119 (Supp. IV 1992) passim

18 U.S.C. 2119 (1994 & Supp. II 1996) .. 32

18 U.S.C. 2119(1)-(3) (Supp. IV 1992) ............. 7, 8, 19, 41

VIII

Miscellaneous: Page

138 Cong. Rec. H11,820 (daily ed. Oct. 5, 1992) ....... 21, 22

142 Cong. Rec.:

p. H6531 (daily ed. June 19, 1996) .... . . . .

pp. H 10, 463-H 10,465 (daily ed. Sept. 17, 1996) ........

p. H 10,464 (daily ed. Sept. 17, 1996) . ... ......

pp. 810, 892-810, 893 (daily ed. Sept. 17, 1996) ..........

H.R. Rep. No. 787, 104th Cong., 2d Sess. (1996) ........

H.R. Rep. No. 851, 102d Cong., 2d Sess. (1992):

a ee

N98 ———————— ů ——

H.R. 4542, 102d Cong., 2d Sess. (1992) . . .. 20,

Model Penal Code (Official Draft 1962) ...... . . ..

W. Rhodes & C. Conly, Analysis of Federal Sentenc-

ing (U.S. Dep't of Justice, Fed. Justice Research

EERRS CESSES

Prog. Rep. No. FIRP-81/004, 1981) ... .. 24

S. Shane-Dubow et al., Sentencing Reform in the

United States: History, Content and Effect (Nat']

Inst. of Justice 1985) . . . . . . . . 24

32 Weekly Comp. Pres. Doc. 1941 (1996) . .. 32

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-6203

NATHANIEL JONES, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals affirming peti-

tioner’s conviction but remanding for resentencing

(J.A. 19-40) is reported at 60 F.3d 547. The court’s

opinion affirming the sentence imposed on remand

(J.A. 41-43) is unreported, but the decision is noted at

116 F.3d 1487 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

June 27, 1997. The petition for a writ of certiorari

was filed on September 25, 1997, and granted on March

30, 1998. The Court amended its order granting cer-

(1)

tiorari on April 6, 1998. 118 S. Ct. 1405. The jurisdic-

tion of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

As in effect at the time of petitioner’s offense, 18

U.S.C. 2119 (Supp. IV 1992) provided as foilows:

§ 2119. Motor Vehicles

Whoever, possessing a firearm as defined in

section 921 of this title, takes a motor vehicle

that has been transported, shipped, or received

in interstate or foreign commerce from the per-

son or presence of another by force and violence

or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned

not more than 15 years, or both,

(2) if serious bodily injury (as defined in

section 1365 of this title) results, be fined under

this title or imprisoned not more than 25 years,

or both, and

(3) if death results, be fined under this

title or imprisoned for any number of years up

to life, or both.

1 In 1994, Congress amended Section 2119 by substituting

“with the intent to cause death or serious bodily harm” for

“possessing a firearm as defined in section 921 of this title.

Federal Death Penalty Act of 1994, Pub. L. No. 103-322, Tit.

VI, s 60003(a)(14), 108 Stat. 1970. The question of the proper

construction of the new intent requirement is before this Court

in Holloway v. United States, No. 97-7164 (cert. granted, April

27, 1998) The 1994 amendment also authorized imposition of

the death penalty in cases in which death results. 108 Stat.

1970. In 1996, Congress again amended Section 2119 to specify

that the term “serious bodily injury” in subsection (2) includes

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of California, peti-

tioner was convicted of carjacking, in violation of 18

U.S.C. 2119 (Supp. IV 1992), and using and carrying a

firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. 924(c) (1988 & Supp. IV 1992).

The court of appeals affirmed petitioner’s convictions,

but it vacated the sentence originally imposed by the

district court and remanded for resentencing. J.A. 19-

40. On remand, the district court sentenced peti-

tioner to 300 months’ imprisonment, to be followed by

five years of supervised release. The court of appeals

affirmed. J.A. 41-43.

1. On December 7, 1992, petitioner and two co-

defendants, Donovan Oliver and Darryl McMillan,

drove petitioner’s sister’s Cadillac to the parking lot

of a liquor store in Bakersfield, California. J.A. 19-20;

Trial Tr. 159, 217-219, 453. The men approached a

parked Honda Accord and ordered its occupants, Ali

Nassar Mutanna and Abdullah Mardaie, to get out.

J.A. 20; Trial Tr. 158-159, 387-388. Oliver stuck the

barrel of a .45 caliber semi-automatic rifle into Mu-

tanna’s left ear, causing it to bleed profusely. J.A. 11,

20; Trial Tr. 159, 199, 223. Petitioner and McMillan

then robbed the victims while Oliver held them at

gunpoint. J. A. 20; Trial Tr. 160. Oliver Gk Mutanna

behind the liquor store, ordered him to lie on the

ground, and struck him on the head. Trial Tr. 165-

166, 233-234. Oliver told Mutanna that he would kill

him if he moved. Jd. at 167; see J.A. 11, 20.

certain sexual assaults. Carjacking Correction Act of 1996,

Pub. L. No. 104-217, § 2, 110 Stat. 3020.

Oliver and McMillan drove away in the Cadillac.

Trial Tr. 167-168. As they did so, Mutanna began to

get up off the ground, and Oliver fired a shot in his

direction from the departing Cadillac. Id. at 168, 225;

Presentence Rep. (PSR) 4; see J.A. 11. Petitioner

forced Mardaie into the Honda and drove after the

Cadillac. Trial Tr. 167-169, 231-232, 390. After driv-

ing a short distance, petitioner ordered Mardaie out of

the car. Jd. at 391; J.A. 11, 20.

After petitioner and his co-defendants left, Mutanna

flagged down a police car and showed the police

officers the direction in which the carjackers had

gone. Trial Tr. 168-169, 306. The police found peti-

tioner sitting in the Honda, which he had parked a few

blocks away. J.A. 20; Trial Tr. 308-309. Petitioner

drove off as officers approached the Honda, but he was

apprehended after a short chase when he crashed the

Honda into a telephone pole. Trial Tr. 309-311. The

officers later arrested Oliver and McMillan and seized

the rifle used in the carjacking from the back seat of

the Cadillac. Id. at 314-315, 356; J.A. 20-21.

2. A federal grand jury indicted petitioner, Oliver,

and MeMillan on charges of carjacking, in violation of

18 U.S.C. 2119 (Supp. IV 1992), and using and carry-

ing a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. 924(c) (1988 & Supp.

IV 1992). J.A. 4-5. At petitioner’s arraignment, the

magistrate advised him that the maximum penalty for

carjacking was 15 years’ imprisonment. J.A. 7. At

trial, Mutanna testified, among other things, that

during the course of the carjacking Oliver had pushed

the gun into Mutanna’s ear until it started bleeding,

2 Unless otherwise indicated, all references to Section 2119

in this brief are to the version in effect at the time of peti-

tioner’s offense.

that he (Mutanna) had “blood all over” him, and that

Oliver repeatedly kicked him in the head as he lay on

the ground. Trial Tr. 199, 223, 233-234. At the con-

clusion of the evidence, the jury was instructed that,

in order to find the defendants guilty of carjacking, it

must find that the defendants took a motor vehicle

while possessing a firearm; that the vehicle had been

transported, shipped, or received in interstate or

foreign commerce; and that the defendants took the

vehicle by force and violence or by intimidation. J. A.

10. The jury found each defendant guilty of both

charges.’ J.A. 21.

3. The presentence report prepared for petitioner’s

sentencing determined that the maximum term of

imprisonment authorized for his carjacking offense

was 25 years, because the offense resulted in “serious

bodily injury” to a victim (Mutanna). PSR 22. The

report explained that Idluring the carjacking, one of

the victims * * * was struck in the left ear and was

then forced to the ground at gunpoint,” and that as a

result, “the victim’s ear swelled and was painful for

several days.” PSR 6. The report stated further that

a medical examination of the victim some time after

the carjacking revealed that he had suffered a

perforated eardrum, causing permanent hearing loss.

Ibid.; see also J. A. 11, 15-16, 33-34.'

At sentencing, petitioner argued that he could not

be sentenced to more than the 15 years’ imprisonment

authorized by Section 2119(1) because the indictment

3 Petitioner and his co-defendants were convicted in part on

the theory that they aided and abetted each other in commit-

ting the charged offenses. J.A. 4-5, 19-20, 25-26; 18 U.S.C. 2.

* Copies of medical reports on Mutanna’s condition were

provided to petitioner’s counsel before the sentencing hearing.

JA. 33-34; see 93-10779 C.A. App. 34-41.

had not charged, and the jury was not instructed that

it must find, that the A e er 5 —

bodily injury.“ See J. A. 12-13. The district court re-

jected — holding that Section 211902) did

not define a substantive offense separate from the

offense defined by the initial paragraph of that Sec-

tion. The court concluded, instead, that “carjacking

is a single offense defined in Section 2119,” and that

“(sub]sections (1) through (3) are merely sentencing

provisions to be applied by the district court at

sentencing.” J.A. 13; see 12/13/93 Tr. 32, 39. The

court found that Mutanna had suffered serious bodily

injury as the result of the carjacking, and that the 25-

year maximum term of imprisonment authorized

under Section 2119(2) therefore applied to petitioner's

offense. J.A. 15-16. Based on its reading of the

applicable provisions of the Sentencing Guidelines,

the district court imposed the statutory maximum

sentence for the carjacking offense. It then added 1

five- year consecutive sentence for the violation of

Section 924(c), for a total sentence of 30 years’ im-

prisonment. J. A. 21, 37-40; see 12/13/93 Tr. 41.

4. The court of appeals affirmed petitioner’s con-

victions. J.A. 19-40. As relevant here, the court re-

jected petitioner’s claim that the reference to “seri-

ous bodily injury” in 18 U.S.C. 2119(2) defined an

element of a separate offense, which the government

was required to charge in the indictment and prove at

trial. J.A. 27-34. The court concluded, instead, that

Section 2119 defines the crime of carjacking in its

first paragraph and then sets out, in three subpara-

graphs, different maximum sentences based on the

harm that results, in a particular case, from the com-

mission of the offense. J.A. 28 30.

The court explained that “(t]he plain text of the

statute establishes one offense, as defined in the first

main paragraph[,] * * * followed by the word ‘shall’

and then three sentencing possibilities.” J.A. 29.

Because Congress “did not redefine the essential ele-

ments of carjacking in subparagraphs (1), (2) or (3),

and those provisions could not stand alone, indepen-

dent of the main paragraph,” the court agreed with

the Eleventh Circuit that “the natural reading of the

text” was that “§ 2119 sets forth one offense, with

several possible penalties.” J.A. 28, 30. In addition,

the court concluded that the legislative history of

Section 2119 provided “persuasive evidence” that Con-

gress intended clauses (1)-(3) of Section 2119 to “set

forth enhanced penalties,” not additional elements of

separate aggravated offenses. J.A. 31-32.

The court rejected petitioner’s claim that he had

been denied due process because he was not informed

through the indictment or at arraignment that he

might face the maximum 25-year sentence. J.A. 33-34.

The court noted that an indictment need not allege

the existence of a sentencing factor, and that peti-

tioner and his co-defendants were given a fair oppor-

tunity to contest the existence and relevance of “seri-

ous bodily injury” at sentencing. Ibid.

Although it affirmed petitioner’s convictions, the

court of appeals vacated his sentence, holding that the

district court had erred in computing the maximum

permissible combined penalty, under the Sentencing

Guidelines, for petitioner’s two offenses. J.A. 37-40.°

The court concluded that under Guidelines § 2K2.4, appli-

cation note 2, petitioner’s total sentence for both offenses

should have been limited, in the circumstances of this case, to

the 25-year (300-month) maximum specified in 18 U.S.C.

211902). J. A. 38-40.

On remand, the district court sentenced petitioner to

240 months’ imprisonment on the carjacking count,

and to a consecutive term of 60 months’ imprisonment

on the firearms count, for a total sentence of 300

months’ imprisonment. 3/25/96 Tr. 5. The court of

appeals affirmed. J.A. 41-43.

SUMMARY OF ARGUMENT

The carjacking statute, 18 U.S.C. 2119, sets forth

one offense consisting of armed robbery of a motor

vehicle, with three different maximum penalties

depending on whether (1) no injury or no serious

injury resulted from the crime, (2) serious bodily

injury resulted from the crime, or (3) death resulted

from the crime. 18 U.S.C. 2119(1)-(3). A finding of

serious bodily injury resulting from the crime is a

sentencing factor, not an element of a separate

criminal offense. The contrary interpretation—that

the injury finding is an offense element—is an

unnatural textual reading of Section 2119’s penalty

provisions, and nothing in the Constitution requires

that this Court adopt it.

I. This Court has repeatedly made clear that,

within broad constitutional limits, the definition of

the elements of federal crimes is a matter for Con-

gress, not the courts. The initial question in this

case is therefore one of legislative intent. The first

paragraph of Section 2119 defines a single carjacking

offense, while the succeeding three dependent clauses

provide statutory authority to sentencing courts to

impose higher sentences when particular harms to

victims result from the offense. Comparison with

other statutes confirms that Section 2119 differs from

those in which Congress may have intended to create

both a basic offense and separate aggravated crimes.

Instead, Section 2119 resembles in its character and

structure provisions that are clearly intended to

define one offense with various ranges of punishments

depending on factors found at sentencing. The text

and structure of the statute therefore strongly sup-

port the interpretation, confirmed by the legislative

history and adopted by all the courts of appeals that

have considered the question, that resulting “serious

bodily injury” (or “death”) is a sentencing determina-

tion, not an element of a separate offense.

The nature of the factors in question further sup-

ports that conclusion. Bodily harm to victims of a

crime is, like recidivism, “as typical a sentencing

factor as one might imagine.” Almendarez-Torres v.

United States, 118 S. Ct. 1219, 1224 (1998). The de-

gree of physical harm caused by a crime is precisely

the sort of factual circumstance that courts necessar-

ily consider in imposing sentence. There is no reason

to conclude that a statutory reference to resulting

bodily harm was intended to define a new offense

element, simply because any such harm will generally

be closely related to the conduct that constitutes the

offense.

Congress’s 1994 amendment of Section 2119 to add

the possibility of capital punishment in cases in which

death results is not relevant to this case, which

involves an earlier version of Section 2119, with no

capital sentencing provision, and an enhancement

based on serious bodily injury, not death. Even if the

1994 amendment were relevant, however, it would not

require that the resulting injury factor set out in

clause (2) be treated as an offense element. There is

nothing to suggest, as a matter of statutory interpre-

tation, that Congress intended the finding of result-

ing injury to be made by anyone other than the sen-

tencing judge. Although petitioner argues that the

Constitution would require that result in capital

cases after 1994, that is far from clear, and there is no

reason for the Court to reach or resolve the question

in this case.

If any subsequent history of Section 2119 is rele-

vant here, it is Congress’s 1996 amendment of the

statute, which was a direct response to a judicial de-

cision interpreting the term “serious bodily injury”

not to include rape of the carjacking victim. In react-

ing to that interpretation, Congress focused specifi-

cally on the statutory provision at issue in this case,

and the relevant materials make clear it understood

and agreed that “serious bodily injury” is a factor

relevant to the severity of sentencing, not an element

of the carjacking offense.

Finally, because use of the standard tools of

statutory interpretation leads to the conclusion that

bodily injury and death are sentencing factors, not

offense elements, the rule of lenity has no application

in this case.

Il. Nothing in the Constitution requires the

Court to adopt any different construction of Section

2119, or to invalidate the statute if it is construed to

create sentence-enhancement factors. In Almen-

darez-Torres, this Court upheld the constitutionality

of a recidivist sentence enhancement provision that

increased applicable maximum penalties. The Court’s

analysis of the constitutional question there applies

equally in this case.

The overall sentencing range established by Sec-

tion 2119, while somewhat broader than that at issue

in Almendarez-Torres, fairly reflects the inherent

seriousness of the carjacking crime and the risk of

harm to persons inherent in it. The increases in the

maximum prison sentences authorized by clauses (2)

and (3), while significant, are proportionally smaller

than the enhancement upheld in Almendarez-Torres.

And Almendarez-Torres cannot be validly distin-

guished on the ground that victim injury is constitu-

tionally different from recidivism for these purposes.

Both recidivism and harm are conventional sentenc-

ing factors.

Finally, there is no sound basis in the Constitution

for concluding that, if facts related to the commission

of the crime may increase the maximum sentence

authorized by law, they must be established as

“elements.” At its broadest, such a proposed rule

could be said to further the principle that any fact

significantly affecting a defendant’s sentence must be

proved at trial in order to protect the defendant's

right to trial by jury and to proof beyond a reasonable

doubt. But that principle has been repeatedly rejected

by this Court’s cases, which recognize that many

sentencing determinations that have a significant

impact on the defendant’s sentence may constitution-

ally be made by the sentencing judge under a

preponderance-of-the-evidence standard. Petitioner’s

narrower argument that clause (1) sets a “statutory

maximum” that clauses (2) and (3) may not increase

fares no better, because it accords undue constitu-

tional significance to the particular manner in which

Congress elects to provide for graduated punishment

based on the circumstances of the crime. Under this

Court’s decisions, Congress could authorize a maxi-

mum sentence of life imprisonment for carjacking,

but direct that sentencing take place in accordance

with mandatory guidelines promulgated by the Sen-

tencing Commission, using the same criteria of

serious injury or death to limit sentences to interme-

diate maximum terms of 15 and 25 years. There can

be no constitutional impediment to accomplishing the

same result through the direct statutory guidance

set out in Section 2119.

This is not to say that the Constitution places no

limit on Congress’s ability to define criminal of-

fenses. Aside from explicit textual limitations, such

as the Ex Post Facto Clause, the Court has noted

that legislatures cannot seek to alter the definitions

of traditional common-law offenses in ways that

transgress “fundamental fairness.” Monge v. Cali-

fornia, No. 97-6146 (June 26, 1998), slip op. 6. Other

constitutional principles, such as proportionality and

the need for fair notice of criminal prohibitions, also

constrain a legislature’s power. Such principles must

be applied with restraint in order to avoid trenching

on legitimate legislative prerogatives. There is no

need for the Court to address those issues in this

case, however, because the offense-definition and sen-

tencing structure that Congress adopted in Section

2119 for armed carjacking fairly defines a serious

violent crime and provides a reasonable structure for

punishing those who commit it. The Constitution

requires nothing more.

ARGUMENT

I. SECTION 2119 DEFINES A SINGLE FEDERAL

CRIME WITH THREE SENTENCING PROVI-

SIONS

Congress creates federal crimes by specifying that

certain acts, generally accompanied by a particular

mental state, will constitute a criminal offense. The

specified acts and mental state become, by definition,

the “elements” of the offense. In order for a defendant

to be convicted of that offense, a grand jury must

allege in an indictment, and the government must

prove beyond a reasonable doubt at trial, facts suf-

ficient to establish the existence of each such ele-

ment. See, e.g., Hamling v. United States, 418 U.S.

87, 117 (1974); In re Winship, 397 U.S. 358, 364 (1970).

Congress must also specify, in one way or another,

what punishment may be imposed on an individual who

has been found guilty of a given crime. Historically,

Congress often simply set out a range of possible

penalties for a defined offense, leaving the selection of

specific punishments within that range to the broad

discretion of the trial judge. See, e. g., 18 U.S.C. 408a

(1940) (kidnapping punishable by death or “imprison-

ment in the penitentiary for such term of years as the

court in its discretion shall determine”); see gener-

ally Mistretta v. United States, 488 U.S. 361, 363-366

(1989) (describing historical practice). More recently,

Congress has required the use of detailed Sentencing

Guidelines, which are set out separately from the pro-

visions that define offenses and are “designed to chan-

nel the sentencing discretion of the district courts

and to make mandatory the consideration of factors

that previously would have been optional.” Witte v.

United States, 515 U.S. 389, 402 (1995); see generally

18 U.S.C. 3553(b); 28 U.S.C. 994; Mistretta, 488 U.S. at

367-370. In addition, Congress has, with respect to

some crimes, provided specific statutory guidance for

the selection of appropriate sentences within a broad

overall range of possible penalties—typically, by

specifying minimum or maximum sentences that the

court must or may impose, depending on the presence

or absence of specified aggravating or mitigating fac-

tors. E.g.,8 U.S.C. 1326(b) (Supp. II 1996); 18 U.S.C.

831(b), 2261(b) (1994 & Supp. II 1996); 21 U.S.C. 841(b)

(1994 & Supp. II 1996); see Almendarez-Torres v.

United States, 118 S. Ct. 1219 (1998).

Thus, Congress typically defines the elements of a

crime, specifies a range of permissible penalties, and

then permits or requires the sentencing court to

consider a wide variety of potentially relevant facts or

circumstances, apart from the elements of the offense

itself, in determining what sentence to impose in a

given case. See also 18 U.S.C. 3553(a) (setting out

general factors to be considered at sentencing). A

court may consider such “sentencing factors” in the

exercise of its traditional discretion, in accordance

with the Sentencing Guidelines, or by direction of the

very provision that defines the offense of conviction.

However the court comes to consider them, sentenc-

ing factors need not be charged in the indictment or

proved at trial, and the requirements of due process

are generally satisfied so long as the defendant is

given a fair opportunity to be heard at sentencing and

the court resolves any contested factual issues

according to the preponderance of the evidence before

it. See, e.g., United States v. Watts, 117 S. Ct. 633,

635-638 (1997) (per curiam); 18 U.S.C. 3661; Sentenc-

ing Guidelines § 6A1.3, commentary.

This Court has repeatedly made clear that, within

broad constitutional limits (see generally pages 36-50,

infra), the definition of the elements of federal crimes

is a matter for Congress, not the courts. Almen-

darez-Torres, 118 S. Ct. at 1223; Staples v. United

States, 511 U.S. 600, 604 (1994); Liparota v. United

States, 471 U.S. 419, 424 (1985); United States v.

Hudson, 11 U.S. (7 Cranch) 32 (1812) (there is no

federal common law of crimes). For that reason, the

question whether a particular act, status, or result

mentioned in a federal criminal statute—in this case,

the result of “serious bodily injury”—is an element of

the defined offense or a statutory sentencing factor is

preeminently a question of congressional intent. Like

other matters of statutory interpretation, it may be

resolved by considering the “language, structure,

subject matter, context, and history” of the provision

in question. Almendarez-Torres, 118 S. Ct. at 1223.

A. The Language And Structure Of Section 2119

Create A Single Carjacking Offense With Gradu-

ated Punishments

The language and structure of Section 2119 indi-

cate that Congress intended to define a single crime

of carjacking—i.e., armed robbery of a motor vehi-

cle—while providing discretion to sentencing courts

to impose greater punishment where the crime pro-

duces greater harms. The opening paragraph of the

text defines the elements of the offense: possession of

a firearm, taking a motor vehicle that has a nexus to

interstate commerce, “from the person or presence of

another,” “by force and violence or by intimidation.”

That paragraph ends with the word “shall,” followed

by a dash. The remaining three dependent clauses,

separated by commas and joined by the word “and,”

have to do only with sentencing: each provides for a

different maximum term of imprisonment, from 15

years to life, depending on the degree of bodily harm

that “results” from commission of the offense just

defined. In other words, the sentencing clauses divide

the overall range of authorized penalties into statu-

tory sub-ranges, varying the severity of permissible

punishment according to the bodily harm suffered by

victims of the offense.

None of Section 2119’s subsidiary clauses stands on

its own as a defined offense; each depends entirely on

the initial paragraph to identify the criminal conduct

that gives rise to punishment. Conversely, the initial

paragraph does stand on its own as a definition of pro-

hibited conduct; the three dependent clauses are rele-

vant only to sentencing, at which stage they define

what penalties Congress has authorized for the de-

fined offense, and how their severity varies depending

on the particular consequences of the crime. As

every court of appeals that has considered the matter

has concluded, Section 2119 does not create three

substantive offenses, each with separate elements and

penalties. Rather, the statute’s “structure is inte-

grated, and [its] provisions form a seamless whole,”

defining one offense with three possible authorized

sentencing ranges. United States v. Rivera-Gomez,

67 F.3d 992, 1000 (1st Cir. 1995); see also ibid. (“most

natural and sensible” to read Section 2119 as creating

only one offense); J.A. 28-29 (“The plain text of the

statute establishes one offense.”); United States v.

Williams, 51 F.3d 1004, 1009-1010 (11th Cir.) (stat-

ute’s “plain language and structure clearly indicate”

that it defines only one offense with associated sen-

tencing factors), cert. denied, 516 U.S. 900 (1995).

To identify three offenses in the text of Section

2119, the statute’s three penalty clauses would have

to be read as alternative completions for the offense

definition begun in the initial paragraph; each com-

pleted alternative, taken as a whole, would then be

read to define a separate criminal offense. That con-

struction of the text, however, departs from the

general approach employed by Congress in defining

separate offenses. Congress does not typically define

an offense by listing a number of its elements, adding

the verb “shall,” and then interposing a final offense

element before specifying the range of authorized

punishments. Moreover, if the penalty clauses were

meant to be alternative completions for the first para-

graph, rather than complementary subdivisions of an

overall sentencing range, then they would more

naturally be joined by the disjunctive “or” than by the

conjunctive “and” that Congress actually used in

drafting Section 2119.

If Congress had intended the bodily injury and

death factors in clauses (2) and (3) to be elements of

separate substantive offenses, it would likely have set

them out in more conventional offense-defining lan-

guage. In 18 U.S.C. 2113 (1994 & Supp. II 1996), for

example, subsections (a)-(c) define bank robbery and

related offenses, each with its own penalty provisions.

Subsections (d) and (e) then create separate aggra-

vated forms of these offenses, by providing that “Who-

ever, in committing” one of the previously defined

offenses, also commits assault, or jeopardizes a life, or

kidnaps or kills another, “shall” be subject to speci-

fied punishments. Moreover, in setting out additional

offense elements, subsections (d) and (e) use the

active language of commission that is most often

associated with the definition of prohibited conduct:

“assaults any person,” “puts in jeopardy the life of

any person,” “kills any person,” “forces any person to

accompany him.” See also 18 U.S.C. 2114(a) (“and if in

effecting * * * such robbery he wounds the person,]

or for a subsequent offense, shall be

imprisoned” etc.); 18 U.S.C. 2118(¢)(1) (“Whoever in

committing any offense [previously defined] assaults

any person, or puts in jeopardy the life of any person,

by the use of a dangerous weapon * * * shall be

fined” ete.). By contrast, the passive language of

“result(]” found in Section 2119’s sentencing clauses

suggests that in drafting those clauses Congress was

focusing, not on additional conduct that would be the

subject of a supplementary prohibition, but on gradu-

ating the punishment for carjacking by reference to

the degree of harm caused by a particular defendant’s

conduct.

These comparisons show that Section 2119 is not

written like other statutes in which Congress may

have intended to create separate aggravated forms of

a basic offense. Furthermore, comparison with two

other statutes cited by petitioner (see Br. 13), 8

U.S.C. 1324(a) (1994 & Supp. II 1996) and 18 U.S.C. 247

(1994 & Supp. II 1996), shows that Section 2119 is

structured very much like statutes that all would

agree set out only sentencing factors. In both Sec-

tion 247 and Section 1324(a), an initial paragraph

defining the elements of an offense concludes with the

phrase “shall be punished as provided in” and the

specification of a different subsection. That subsec-

tion, in turn, provides sub-ranges that are graduated

according to, among other things, whether bodily

injury or death results from the commission of the

previously defined offense. See 8 U.S.C. 1324(a)(1)(A)

and (B) (Supp II 1996); 18 U.S.C. 247(a) and (d).

Petitioner relies (Br. 13) on the fact that in drafting

these two statutes Congress formally separated the

subdivision dealing with sentencing factors from the

subdivision that defines the elements of the offense,

whereas in drafting Section 2119 it set one directly

after the other, omitting transitional phrases and

failing to designate the initial paragraph as subsec-

tion (a) and the sentencing clauses as subsection (b).

That circumstance, however, does not outweigh the

fundamental structural similarity that all of these

statutes share: each sets forth offense conduct in one

paragraph, followed by separate sections with

penalty-enhancing harms graduated by severity.°

Congress may express an intention to create sentencing

factors even without dividing a provision into separate sections,

For all these reasons, petitioner is mistaken when

he contends (Br. 11) that Section 2119’s language and

structure provide “no reliable indicia” of Congress’s

intent. To the contrary, considered both in isolation

and in comparison to other criminal statutes, the

statute’s language and structure strongly support

the conclusion reached by the court below (and other

courts of appeals) that resulting injury or death is a

matter for determination at sentencing. It is true, of

course, that Section 2119 does not “expressly state”

that injury is “not an element” (Pet. Br. 11-12), and

that the injury factor does not, for example, appear in

a separate subsection entitled “penalties” (Pet. Br.

12-13). Every statute must be examined on its own

terms, however, and the presence or absence of any

one feature will seldom be dispositive.’ Similarly,

petitioner’s observation that different statutes take

as it did in Section 2119(1)-(3). For example, 18 U.S.C. 1347

defines health care fraud in its first sentence, and in a second

sentence provides escalating maximum sentences if the

violation results in serious bodily injury” or “death.” It would

be unduly formalistic to suppose that the failure to divide Sec-

tion 1347 into “(a)” and “(b),” labeled “offense” and “penal-

ties,” demands that courts must overlook the clear intention to

create one offense with increasing maximum punishment based

on sentencing factors.

See, e. g., 18 U.S.C. 2332 (1994 & Supp. II 1996) (titled

“Criminal penalties,” but clearly defining a number of sub-

stantive offenses); United States v. Ryan, 9 F.3d 660, 668

(1993) (“death results” is a sentencing factor under the federal

arson statute, 18 U.S.C. 844(i), although statute “lacks some of

the common indicia” of a sentencing provision), modified on

other grounds, 41 F.3d 361 (8th Cir. 1994) (en banc), cert. de-

nied, 514 U.S. 1082 (1995); United States v. Rumney, 867 F. 2d

714, 717-718 (Ist Cir.) (former 18 U.S.C. App. 1202(a)(1) (1982)

was a sentencing provision, despite absence of “indicia of a tra-

ditional sentence enhancer”), cert. denied, 491 U.S. 908 (1989).

account of bodily injury in different ways (Br. 14)

simply underscores that determining the proper

construction of any given provision will often require

“a close reading of the text, as well as consideration

of other interpretive circumstances.” Almendarez-

Torres, 118 S. Ct. at 1224. In this case, that inquiry

leads to the conclusion that clauses (2) and (3) of Sec-

tion 2119 set out factors to be taken into account at

sentencing.

B. The Legislative History Of Section 2119 Supports

The One-Offense Construction

The history of Section 2119’s drafting and enact-

ment is consistent with the conclusion that it defines

one offense with different possible sentencing ranges.

The Anti Car Theft Act of 1992, Pub. L. No. 102-519,

106 Stat. 3384, was first introduced as H.R. 4542.

That bill would have enacted a new Section 2119

providing, in its entirety:

Whoever, by force and violence, or by intimidation,

takes a motor vehicle from the person or presence

of another, or attempts to do so, shall be fined

under this title or imprisoned not more than 20

years, or both.

H.R. 4542, 102d Cong., 2d Sess. § 101(a) (1992) (as

introduced). The House Judiciary Committee

amended the bill to require that the offender possess a

firearm and that the vehicle taken have previously

moved in interstate commerce, and to reduce the

maximum authorized term of imprisonment to 15

years. H.R. Rep. No. 851, 102d Cong., 2d Sess. Pt. 1,

at 1-2, 17 (1992) (House Rep.). The Committee ob-

served that, as so amended, It )he definition of the

offense track[ed] the language used in other federal

robbery statutes (18 U.S.C. §§ 2111, 2113 and 2118).”

Id. at 17.

The House Committee on Energy and Commerce,

to which H.R. 4542 was sequentially referred,

amended the Judiciary Committee’s version of the bill

to create the present three-tiered penalty structure.

See House Rep., Pt. 2, at 2, 14. The Committee ex-

plained that its amendment “increas[ed] the maximum

prison term for carjacking to 25 years, instead of 15

years as in the Judiciary bill, when carjacking results

in bodily injury. If death results, the penalty could be

life in prison and a fine.” Id. at 14; see also id. at 32

(evidently describing a somewhat different version of

the Committee’s amendment). The final bill that be-

came the Anti Car Theft Act contained this amended

version of the provision creating Section 2119. See

106 Stat. 3384; see also 138 Cong. Rec. H11820 (daily

ed. Oct. 5, 1992) (final bill was a “compromise” be-

Given the Judiciary Committee’s statement that it used

other federal robbery statutes as its model for the portion of

Section 2119 that defines the elements of carjacking, peti-

tioner’s reliance on supposed state-law precedents (Pet. Br. 24-

26, Al-A14) is largely misplaced. Although, as described in the

text, the statute’s references to bodily injury and death were

added by a different Committee, nothing in the language,

structure, or history suggests that in adding them Congress

might have abandoned ready federal models, such as those dis-

cussed in the previous section, in favor of generalized reliance

on the state law of assault. In any event, had Congress looked

to the state laws petitioner cites, and intended to emulate them,

it would presumably have made injury or death “an element of

an offense of aggravated robbery or of robbery in the first

degree,” probably “set forth in a separate statutory section

* * * and classified as a different class of felony.” Pet. Br. 24-

25. That is not, of course, what Congress did in Section 2119.

Cf. McMillan v. Pennsylvania, 477 U.S. 79, 90 (1986).

tween versions reported by Judiciary and Commerce

committees).

The Energy and Commerce Committee did not

describe its enhanced penalty provisions as “sentenc-

ing factors,” or discuss whether the relevant “re-

sults” of the crime would be determined by the jury or

by the sentencing judge. The brief comments in its

report, and elsewhere in the legislative history, none-

theless uniformly suggest that the amendment was

intended to create and grade a scheme of enhanced

penalties, not to alter or supplement the elements of

the underlying carjacking offense as it had been

defined by the Committee on the Judiciary. See

House Rep., Pt. 2, at 14 (bill as reported “contains

provisions which include a new Federal crime for

armed ‘carjacking’”) (emphasis added); see also, in

addition to comments cited supra, House Rep., Pt. 3,

at 2 (Ways and Means Committee) (“With respect to

the theft of automobiles, a new Federal crime is de-

fined for armed carjacking”) (emphasis added); 138

Cong. Rec. H11820 (daily ed. Oct. 5, 1992) (statement

of Rep. Dingell, Chair of the Energy and Commerce

Comm.) (“I am pleased that we have agreed to toughen

the penalties against carjacking as contained in the

Commerce Committee version.”); ibid. (statement of

Rep. Collins) (“This bill would make carjacking a

Federal crime with tough penalties, including a

sentence of up to life in prison if carjacking results in

death”). Thus, to the extent it speaks to the issue at

hand, the history of Section 2119 supports the natural

reading of the statutory text: Congress intended to

establish a single crime of carjacking, defined in the

initial paragraph of the provision, and to provide a

graduated set of penalties, with significantly greater

punishment authorized in those cases in which

commission of the crime results in serious bodily

injury or death. Compare Almendarez-Torres, 118 S.

Ct. at 1226.

C. The Bodily Harm That Results To Victims Is A

Traditional Factor In Determining The Severity Of

Criminal Sentences

As petitioner observes (Br. 15), this Court made

clear in Almendarez-Torres, 118 S. Ct. at 1224, that

the nature or subject matter of a particular statutory

factor may be important in assessing whether Con-

gress intended that factor to help define a separate,

aggravated form of an offense, or simply to be taken

into account in determining the sentence to be im-

posed for the basic crime. Like the recidivism factor

at issue in Almendarez-Torres, the question of vic-

tim harm—whether a given robbery, for instance, not

only involved the intimidation and loss of property

that the law directly prohibits, but also led to the

serious injury or death of a victim—is “as typical a

sentencing factor as one might imagine.” Tbid.; see

also id. at 1229-1230.

Judges have always taken into account, in the

exercise of their traditional discretion in imposing

sentence, the amount of harm caused by a defendant’s

crime, and more particularly whether it resulted in a

victim’s injury or death. See, e.g., Payne v. Tennes-

see, 501 U.S. 808, 820 (1991); Williams v. Oklahoma,

358 U.S. 576, 585-586 (1959) (“In discharging his duty

of imposing a proper sentence, the sentencing judge is

authorized, if not required, to consider all of the

mitigating and aggravating circumstances involved in

the crime. * * * Certainly, one of the aggravating

circumstances involved in this kidnapping crime was

the fact that petitioner shot and killed the victim in

the course of its commission.”). Indeed, the United

States Sentencing Commission, in drafting the pres-

ent federal Sentencing Guidelines, expressly recog-

nized that for crimes like robbery and assault, “the

presence of physical injury made an important differ-

ence in pre-guidelines sentencing practice.” Guide-

lines ch. 1, pt. A, J 4(b), at 6 (Nov. 1, 1997). The

Guidelines preserve and regularize traditional prac-

tice, requiring courts to take account of “all harm

that resulted” from the defendant’s conduct, including

“bodily injury,” in determining a defendant’s offense

level. Guidelines § 1B1.3(aX(3) & application note 4;

see also, e. g., §§ 2A2.2(b)(3) (aggravated assault);

2A. Ib)) (kidnaping, abduction, unlawful restraint);

2B3.1(b)\(3) (robbery); 2B3.2 (extortion); Miller v.

Florida, 482 U.S. 423, 426 (1987) (discussing state

sentencing guidelines that assigned “points” based on

factors including “the primary offense, * * * prior

® See also, e. g., W. Rhodes & C. Conly, Analysis of Federal

Sentencing X-13, XV-5, XV-11—XV-13 (U.S. Dep't of Justice,

Fed. Justice Research Prog. Rep. No. FJRP-81/004, 1981) (in-

dicating that, in an empirical study of federal sentencing

decisions, victim harm significantly influenced the length of

prison sentences for bank robbery and a group of other federal

crimes); 28 C.F.R. 2.20 (1984) (former Parole Commission

guidelines, taking resulting injury into account in grading the

seriousness of, e.g., assault (ch. 2(B)) and crimes primarily

involving the destruction of property (ch. 3(A))); S. Shane-

Dubow et al., Sentencing Reform in the United States: History,

Content, and Effect 233, 235-236 (Nat’l Inst. of Justice 1985)

(reporting that in a study of South Carolina judges, who had “a

wide range of discretion in determining the type and length of

sentence,” “the two most important factors used by judges

* * * were the use of a weapon and the threat of personal

injury”); Model Penal Code § 7.01(2)(a) (Official Draft 1962)

(listing, as the first consideration supporting withholding any

prison sentence, whether “the defendant’s criminal conduct

neither caused nor threatened serious harm”).

record. * and victim injury”). There can be no

serious question that resulting injury or death is,

like recidivism, “a traditional * * * basis for a sen-

tencing court’s increasing an offender’s sentence.”

Almendarez-Torres, 118 S. Ct. at 1230.

Petitioner contends (Br. 15-19) that resulting in-

jury should nonetheless be treated as an offense

element under Section 2119 because the existence of

such an injury, unlike an offender’s criminal history,

is an issue “closely related to and intertwined with

the facts of the [present] offense” (Br. 17). Further-

more, he argues (Br. 16-18), there is greater need to

treat bodily injury as an element, because it is more

likely to be contested than a defendant’s criminal

history, and it will typically not have been the subject

of a prior criminal proceeding, conducted under more

stringent rules of proof. Those considerations do not,

however, support the conclusion that Congress in-

tended bodily harm to be an offense element under

Section 2119, because statutory and guideline-based

sentencing schemes frequently require that “fact[s]

associated with the commission of the crime” (Pet.

Br. 15), including resulting injury or death, be taken

into account as sentencing factors.”

In McMillan v. Pennsylvania, 477 U.S. 79, 81

(1986), for example, the Court considered a state law

” Conversely, a factor relating solely to the “history of the

offender” (Pet. Br. 15) may be an element of an offense. The

statute that was at issue-in Almendarez-Torres, for example,

requires the government to prove that the defendant was

previously “arrested and deported or excluded and deported.”

8 U.S.C. 1326(a)(1) (Supp. II 1996). See also 18 U.S.C. 922(g)

(1994 & Supp. II 1996) (specifying various historical facts, such

as prior convictions, commitment to a mental institution, dis-

honorable military discharge, or renunciation of citizenship,

that trigger federal criminal firearms prohibitions).

that mandated the imposition of a minimum term of

imprisonment if the judge found at sentencing that

the defendant had “‘visibly possessed a firearm’ dur-

ing the commission of the offense.” Rejecting a claim

that the Constitution required the use of a height-

ened standard of proof “because visible possession is a

fact ‘concerning the crime committed’ rather than the

background or character of the defendant,” the Court

observed that “[slentencing courts necessarily

consider the circumstances of an offense in selecting

the appropriate punishment, and we have consistently

approved sentencing schemes that mandate considera-

tion of facts related to the crime without suggesting

that those facts must be proved beyond a reasonable

doubt.” Id. at 92 (citation omitted).

McMillan cited Proffitt v. Florida, 428 U.S. 242

(1976), which involved a capital sentencing scheme in

which the sentencing judge was required to take

account of various aggravating and mitigating cir-

cumstances, many of them “intertwined with the

facts of the offense” (Pet. Br. 17). McMillan, 477 U.S.

at 92; see Proffitt, 428 U.S. at 248-249 n.6. Similar

examples are easily multiplied. See, e.g., Guidelines §

1B1.3(a)(1)-(2) (requiring consideration at sentencing

of all offense-related conduct); Miller, 482 U.S. at 426

(describing state guidelines scheme); 18 U.S.C. 3592

(1994 & Supp. II 1996) (specifying aggravating and

mitigating factors for federal capital sentencing, in-

cluding, for instance, that a killing “involved torture

or serious physical abuse”); 21 U.S.C. 841(b) (1994 &

Supp. II 1996) (specifying different sentencing ranges

for drug trafficking offenses depending on the type

and quantity of drugs involved); Pet. Br. 12-13 (citing

several federal criminal statutes that use serious

bodily injury as a sentencing factor). The degree of

physical harm caused by a defendant’s crime is pre-

cisely the sort of factual circumstance that courts

“necessarily consider” (McMillan, 477 U.S. at 92) in

imposing sentence. There is no reason to conclude

that a statutory reference to resulting bodily harm in

specifying maximum authorized punishments was in-

tended to define a new offense element, simply be-

cause such harm will generally follow directly from

the conduct that constitutes the offense of conviction.

Significantly, Section 2119 does not refer to bodily

injury or death as an integral consequence of the

defendant’s offense conduct, as would a hypothetical

statute that read: “Whoever, in the course of taking a

motor vehicle, causes serious bodily injury to the

occupant.” As we have pointed out (see pages 17-18,

supra), clauses (2) and (3) of Section 2119 instead

authorize the imposition of higher sentences if

serious bodily harm or death results.“ That lan-

guage focuses not on the offender’s acts, but on their

consequences." It indicates that in this statute, in-

jury or death is a harm to be considered at sentenc-

ing, not a separately prohibited aspect of the under-

lying criminal conduct.

u For example, a carjacking victim might suffer a heart

attack immediately after the offender drove away, or become

disoriented, wander into traffic, and be hit by another car.

Such consequences are readily encompassed by a sentencing

provision tied to resulting harms, even if they are not inter-

twined with the offense conduct itself. See United States v.

Vazquez-Rivera, 135 F.3d 172, 178 (Ist Cir. 1998) („[The choice

of the word ‘results’ * * * suggests that Congress intended to

cover a fairly broad range of consequences flowing from a

carjacking.”).

D. To The Extent They Are Relevant, Later Amend-

ments To Section 2119 Also Support The One-

Offense Construction

1. Provision for capital punishment. Petitioner

argues (Br. 26-30) that resulting bodily injury must

be construed to be an element of an aggravated offense

defined by clause (2) of Section 2119 because in 1994,

after the commission of the offense at issue in this

case, Congress amended clause (3) of the statute to

authorize imposition of the death penalty in cases in

which “death results.” See note 1, supra (describing

1994 amendments); see also Br. for the Nat’l Ass’n of

Criminal Defense Lawyers (NACDL) 14-15. That

argument is unsound. The penalty structure of

Section 2119 applicable to this case was already in

place before a capital sentence was added. The 1994

amendment of clause (3) is not the sort of legislative

modification that may shed light on the proper

interpretation of clause (2), as originally enacted: it

does not “declare the meaning of earlier law,” “seek

to clarify an earlier enacted general term,” “depend

for [its] effectiveness upon clarification, or a change

in the meaning of an earlier statute,” or otherwise

“reflect any direct focus by Congress upon the mean-

ing of the earlier enacted provisions.“ Almendarez-

Torres, 118 S. Ct. at 1227 (citing cases). The 1994

amendment is therefore “beside the point” here. /bid.

Even if the 1994 amendment were potentially rele-

vant to interpreting the statute under which peti-

tioner was convicted and sentenced, it would not

justify the conclusion that the non-capital sentencing

provision in clause (2) was intended to create a sepa-

rate criminal offense. First, Congress’s 1994 addition

of the words “or sentenced to death” to the range of

penalties authorized by clause (3) for cases in which

“death results” does not indicate any intent to make

resulting death an element of a separate carjacking

offense (let alone any similar intent with regard to

the “serious bodily injury” covered by clause (2)).

Indeed, the portion of the 1994 amendment that did

change the elements of the carjacking offense oper-

ated by substituting a new intent requirement for the

former element of “possessing a firearm”—which

appears in the initial, offense-defining paragraph of

the statute. That change applies to all carjacking

cases, not only to those in which death results. See

Federal Death Penalty Act of 1994, Pub. L. No. 103-

322, Tit. VI, § 60003(a)(14), 108 Stat. 1970. The 1994

amendments therefore preserve and emphasize the

structural separation between the offense elements

set out in the initial paragraph of Section 2119 and the

sentencing factors set out in the following dependent

clauses.

Second, contrary to petitioner’s argument (Br. 27-

28), nothing in the relationship between Section 2119,

as amended, and the capital sentencing procedures

that Congress also enacted in 1994, 18 U.S.C. 3591 et

seq., requires the conclusion that resulting injury in

clause (2) should be treated as an element of a

separate carjacking offense. The federal death pen-

alty procedures apply whenever a defendant “has been

found guilty of * * * any * * * offense for which a

sentence of death is provided” (§ 3591(a)), if the gov-

ernment seeks the death penalty (see § 3593(a)) and if

the sentencing jury or court makes certain required

threshold findings concerning the defendant’s mental

state (see §§ 3591(a)(2)(A)-(D), 3593(b)). Those proce-

dural provisions do not bear on the definition or con-

struction of the elements of particular capital of-

fenses; they simply provide a uniform mechanism for

determining whether or not to impose the death

penalty in cases in which it is otherwise authorized.

In this case, the basic language and structure of

Section 2119, including the reference to resulting

death in one of three dependent clauses relevant only

to sentencing, was in place before the 1994 amend-

ments added the possibility of capital sentencing.

There is no reason to suppose that Congress intended

those amendments to change the proper interpre-

tation of Section 2119, or of any other statute that

previously used resulting death as a factor relevant to

the imposition of non-capital sentences.”

Finally, petitioner suggests (Br. 26-27) that result-

ing “death” must be a separate offense element after

the 1994 amendments, because Congress’s authoriza-

tion of the death penalty in Section 2119(3) would

otherwise be unconstitutional. He further suggests

that if that constitutional claim is correct, it justifies

construing Section 2119(2), even before 1994, to create

a separate bodily-injury element. That constitutional

theory of capital sentencing affords no basis for con-

2 United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998),

petition for cert. pending, No. 97-9019 (filed May 7, 1998), is

not to the contrary. See Pet. Br. 27-28 & n.24. Reza held that

resulting death was an element of the air piracy offense de-

fined by 49 U.S.C. App. 1472(n) (1988) (since revised and

recodified at 49 U.S.C. 46502(b)). See 134 F.3d at 1134-1137. In

reaching that conclusion, the court relied on the specific rela-

tionship between Section 1472(n) and 49 U.S.C. App. 1473(c)(2)

(1988), a simultaneously enacted provision setting forth capital

sentencing procedures applicable only in air piracy cases

(although similar in kind to those now generally applicable

under 18 U.S.C. 3591). See 134 F.3d at 1137. The court specifi-

cally distinguished resulting-death provisions in other stat-

utes, including Section 2119. See 134 F.3d at 1136-1137 (citing

United States v. Rivera-Gomez, supra, and United States v.

Williams, supra).

struing the resulting “serious bodily injury” factor

to be an offense element.

While the Court has made clear that the death pen-

alty may not be imposed on a robber or rapist “who, as

such, does not take human life,” Enmund v. Florida,

458 U.S. 782, 797 (1982); Coker v. Georgia, 433 U.S.

584, 598 (1977) (plurality opinion), this Court’s deci-

sions have not addressed whether the Constitution

would permit the imposition of a death sentence for a

violent crime that results in a victim’s death, where

the finding of death is a sentencing factor that is

determined by the jury beyond a reasonable doubt in

the penalty stage of a bifurcated trial. Many of the

constitutionally required determinations for impos-

ing a capital sentence, however, may be made at the

penalty stage. A defendant’s participation in the

crime resulting in death must be sufficiently substan-

tial, for example, and his mental state sufficiently cul-

pable, to make death a constitutionally proportionate

punishment. Tison v. Arizona, 481 U.S. 137, 149-152,

156-158 (1987); Enmund, 458 U.S. at 797-801. But

such findings of participation and culpability may be

made at sentencing; they “do not affect the showing

that [the government] must make at a defendant’s

trial,” because they “do[] not concern the guilt or

innocence of the defendant * and dof] not affect

the 0 * * definition of any substantive offense.”

a v. Reeves, No. 96-1693 (June 8, 1998), slip op.

8 See also Cabana v. Bullock, 474 U.S. 376, 384-388 (1986)

(finding of intent to kill must be made “at some point in the

process,” but need not be made at trial or by jury); Walton v.

Arizona, 497 U.S. 639, 649 (1990) (aggravating circumstances

need not be denominated as elements of an offense, and need

not be found by jury); Hildwin v. Florida, 490 U.S. 638, 640-641

The applicability of that constitutional analysis to

the finding of a resulting death under the post-1994

version of Section 2119 is an open question. Certainly,

the substantiality of a defendant’s participation in a

carjacking from which death resulted, and the cul-

pability of his mental state, would have to be found

before he could be sentenced to death, but the Eighth

Amendment permits those findings to be made at

sentencing.” This Court has never considered, how-

ever, whether the resulting death that is necessary to

make capital punishment constitutionally propor-

tional to a violent felony like rape or robbery must

itself be treated as an element of the offense of con-

viction where the government seeks the death pen-

e case presents no such constitutional issue.

Petitioner’s sentence is one of imprisonment, and it

was enhanced for resulting serious bodily injury (not

death) under Section 2119(2) (not (3)). The Court

should not reach and determine the Eighth Amend-

ment requirements for imposing a capital sentence

discussing McMillan v. Pennsylvania, supra); Spaziano

3 — 468 US. 447, 457-467 (1984); Almendarez-Torres,

118 S. Ct. at 1232 (citing these cases in rejecting argument that

Constitution requires any factor that provides the legal oo.

cate for an increased sentence to be treated as an offense ele-

ment).

4 After the 1994 amendments, the requirement of mental

culpability would normally be satisfied by the jury’s finding

that a defendant acted “with the intent to cause death or seri-

ous bodily harm.” See 18 U.S.C. 2119 (1994 & Supp. II 1996).

In any case, applicable federal capital sentencing oe

would require the sentencing jury or court to find, beyo tn

reasonable doubt, that the defendant acted with a sufficient y

culpable mental state, and that the victim died as an intended

or “direct” result of the defendant’s conduct. 18 U.S.C.

3591(a(2)(A)-(D); see Tison, 481 U.S. at 157-158.

for carjacking under Section 2119(3) in the abstract;

and however the existence of any doubt on that score

might affect the interpretation of Section 2119(3) in a

capital case, it can have no effect on the construction

of Section 2119(2) here. Compare Peretz v. United

States, 501 U.S. 923, 936 (1991).

2. Modification of the definition of “serious bod-

ily injury.” Although the 1994 amendment does not

bear on the proper construction of Section 2119 before

that amendment (and would not support petitioner’s

position even if it did), there is a later amendment to

Section 2119 that does meet Almendarez-Torres’s

criteria for potential relevance (see page 28, supra).

That amendment, which clarified the specific penalty

enhancement provision at issue in this case, supports

the court of appeals’ construction of the statute.

In June 1994, Reynaldo Vazquez Rivera forced a

woman into her car, took her to a remote beach, and

raped her at gunpoint before driving off with her car.

United States v. Rivera, 83 F.3d 542, 544 (Ist Cir.

1996). After a jury found Rivera guilty of violating

Section 2119, the judge sentenced him to 25 years’

imprisonment, based on his finding that the rape

constituted “serious bodily injury.” Jd. at 545. The

First Circuit affirmed Rivera’s conviction, but it

vacated his sentence on the ground that rape did not,

by itself, constitute “serious bodily injury” under the

statute, and that there was insufficient evidence to

conclude that the rape had caused “extreme physical

pain” or “protracted loss or impairment of the func-

tion ofa * * mental faculty.” Id. at 547-549. The

court’s opinion explicitly adverted to its previous

holding that “the alternative penalty provisions of

§ 2119 are sentence enhancers whose applicability is a

matter for the judge, not the jury.” Id. at 549 n.12.

The court of appeals rendered its decision in

Rivera on May 21, 1996. 83 F.3d at 542. On June 19,

1996, Representative Conyers introduced legislation

that became the Carjacking Correction Act of 1996,

Pub. L. No. 104-217, 110 Stat. 3020, in order “to clarify

that rape constitutes a serious bodily injury for the

purposes of the penalty enhancement provided for in

the federal carjacking statute.” H.R. Rep. No. 787,

104th Cong., 2d Sess. 2 (1996); see note 1, supra

(describing 1996 amendment); 142 Cong. Rec. H6531

(daily ed. June 19, 1996) (introduction of H.R. 3676).

The committee report and floor statements on the Act

focused directly on the First Circuit’s interpretation

of Section 2119, and they speak exclusively of sen-

tence enhancement: there is no suggestion that the

finding of serious bodily injury constituted an “ele-

ment” of the carjacking offense, to be found by the

trial jury rather than by the sentencing judge. See,

e.g., H.R. Rep. No. 787, supra, at 3 (agreeing with

Judge Lynch, dissenting from denial of rehearing en

banc, that the panel opinion “considered the definition

ef ‘serious bodily injury’ so narrowly that it produced

a result ‘wholly at odds with larger considerations of

congressional sentencing policy and intent“) (em-

phasis added); 142 Cong. Rec. H 10464 (daily ed. Sept.

17, 1996) (statement of Rep. Buyer, moving passage of

the bill) (“This legislation does not create any new

Federal crime * lt does not even create a

penalty enhancement scheme under the carjacking

statute—that enhancement already exists in the law.

All this bill does ifs] make clear that anyone who

commits rape during the course of a carjacking will

get alonger * term in prison.”); see also id. at

H10463-H10465 (House debate and passage), S10892-

810893 (Senate floor statement and passage). The

President signed the Carjacking Correction Act into

law on October 1, 1996. See 32 Weekly Comp. Pres.

Doc. 1941.

Unlike the 1994 amendments on which petitioner

seeks to rely, the 1996 Act “reflect{s] al] direct focus

by Congress upon the meaning of the earlier enacted

provisions” of Section 2119 (see Almendarez-Torres,

118 S. Ct. at 1227), and specifically on the meaning of

the term “serious bodily injury.” Congress’s discus-

sion of that phrase, and of the operation of the

carjacking statute, in reacting to the First Circuit’s

decision in Rivera make clear that Congress had no

doubt that “serious bodily injury” was a factor rele-

vant to the severity of sentencing, not an element of

the carjacking offense. Thus, to the extent that evi-

dence of later congressional views is relevant here, it

supports the construction of Section 2119 adopted by

the court below and other courts of appeals, not the

construction urged by petitioner.

D. The Rule Of Lenity Does Not Support Adoption Of

Petitioner’s Construction Of Section 2119

Petitioner relies, finally, on the rule of lenity. Br.

30-31. It is by no means clear that defendants would

be systematically favored by any construction of Sec-

tion 2119 under which the government would be

required to introduce at trial evidence concerning the

seriousness of bodily injuries (or the fact of a death)

resulting from the defendants’ criminal conduct.

Compare Almendarez-Torres, 118 S. Ct. at 1226 (not-

ing that treating recidivism factor as an offense ele-

ment would “risk{] unfairness” to defendants); Monge

v. California, No. 97-6146 (June 26, 1998), slip op. 6

(observing that “fairness calls for defining a fact as a

sentencing factor” where the fact could lead to an

increased sentence, such as the quantity of drugs

involved in an offense, but the defendant might not

wish to contest that fact while disputing guilt). In

any event, as the Court has recently explained, the

rule of lenity is not properly invoked simply because a

statute requires consideration and interpretation to

confirm its meaning. Muscarello v. United States,

118 S. Ct. 1911, 1919 (1998); see also Caron v. United

States, 118 S. Ct. 2007, 2012 (1998) (“The rule of lenity

is not invoked by a grammatical possibility.”); Moskal

v. United States, 498 U.S. 103, 107-108 (1990); ef. Al-

mendarez-Torres, 118 S. Ct. at 1227-1228 (discussing

doctrine of “constitutional doubt”). It applies only if

there is such “grievous ambiguity or uncertainty” in

a statute that, “after seizing everything from which

aid can be derived, [the Court] can make no more than

a guess as to what Congress intended.” Muscarello,

118 S. Ct. at 1919 (internal quotation marks and ellip-

sis omitted). In this case, as we have demonstrated,

consideration of the “language, structure, subject

matter, context, and history” of Section 2119 makes it

at least “reasonably clear” that the statute is best

construed as establishing a single crime of carjack-

ing, with three possible statutory sentencing ranges

depending on the degree of harm resulting from the

offense. See Almendarez-Torres, 118 S. Ct. at 1223.

1224. The rule of lenity accordingly has no

application here.

II. NOTHING IN THE CONSTITUTION’ RE-

QUIRES THIS COURT TO OVEREIDE CON-

GRESS’S ESTABLISHMENT OF GRADUATED

SENTENCING RANGES FOR A SINGLE CAR-

JACKING OFFENSE

Petitioner contends (Br. 22-42) that, whatever

Congress may have intended when it enacted Section

2119, “the Constitution mquires that serious bodily

injury be deemed an element [of a separate offense] in

order for the defendant to be imprisoned in — of

the 15-year maximum penalty set forth in 18 U.S.C.

§2119(1).” Pet. Br. 32; see also NACDL Br. 16-19.

Nothing in the Constitution or this Court’s cases,

however, requires the Court to adopt a construction

of Section 2119 other than that produced by applying

the normal tools of statutory analysis.

A. The Court's Constitutional Analysis In Almendarez-

Torres Controls The Decision In This Case

This Court “has rejected an absolute rule that an

enhancement constitutes an element of the offense

any time that it increases the maximum sentence to

which a defendant is exposed.” Monge, slip op. 6.

Thus, the Court recently declined to hold that a state

scheme under which sentences would be doubled for

repeat offenders necessarily defined an “offense” with

a prior-conviction “element.” Jbid. That decision

relied on the Court’s thorough analysis of the issue in

Almendarez-Torres, 118 S. Ct. at 1228-1233, which

upheld the use of prior criminal convictions as

sentencing factors that could increase the maximum

sentence authorized for a federal crime from two

years to ten or twenty, and which similarly rejected

the argument “that any significant increase in a

statutory maximum sentence * * * trigger{s] a

Constitutional ‘elements’ requirement” (id. at 1232).

Like petitioner (Br. 32-35), the defendant in

Almendarez-Torres relied heavily on this Court's

decision in Mullaney v. Wilbur, 421 U.S. 684 (1975).

The Court acknowledged that Mullaney, “{rJead lit-

erally, * : * suggests that Congress cannot permit

judges to increase a sentence in light of recidivism, or

any other factor, not set forth in an indictment and

proved to a jury beyond a reasonable doubt.” 118 S.

Ct. at 1229. In the light of subsequent decisions, how-

ever, the Court found it “absolutely clear that such a

reading of Mullaney is wrong.” Ibid. Indeed, the

Court pointed out that Patterson v. New York, 482

U.S. 197 (1977), “suggests the exact opposite” propo-

sition—i.e., “that the Constitution requires scarcely

any sentencing factors to be treated” as elements.

118 S. Ct. at 1229. As the Court explained, although

Patterson facially resembled Mullaney, its result

(unlike Mullaney’s) favored the State, the difference

turning on whether or not the State itself had, in

framing its criminal provisions, defined the factor in

question as an element of the offense of conviction.

Almendarez-Torres, 118 S. Ct. at 1229.

The Court then considered its most closely analo-

gous precedent, McMillan v. Pennsylvania, which

held that a State could use visible possession of a

firearm in committing an offense as a sentencing fac-

tor requiring the imposition of a mandatory minimum

sentence. Almendarez-Torres, 118 S. Ct. at 1230.

The Court first catalogued “the various features of

[McMillan] upon which the Court’s conclusion [in

that case] arguably turned”: that the statute did not

“transgress the limits expressly set out in

Patterson” (ie,, the State did not “presume” the

existence of any factor it had defined as an element of

the offense, or otherwise “relieve the prosecution of

its burden of proving guilt,” see McMillan, 477 U.S.

at 86-87); that the defendant did not face “a differential

in sentencing ranging from a nominal fine to a

mandatory life sentence”; that the sentencing scheme

“did not alte[r] the maximum penalty for the crime,”

but merely “limit{ed] the sentencing court’s discre-

tion in selecting a penalty within the range already

available to it”; that the statute did not by its terms

create a separate offense; and that it “gave no im -

sion of having been tailored to — the visible

possession finding to be a tail which wags the dog of

the substantive offense,” but “simply took one factor

that has always been considered by sentencing courts

to bear on punishment and dictated the precise weight

to be given that factor.” 118 S. Ct. at 1230 (internal

quotation marks and ellipsis omitted); see also

are va 477 U.S. at 86-87 (discussing Patterson).

— Court noted that, with regard to these features,

case before it differed from McMillan only in that

— did —— the maximum penalty for the crime,”

„ — 7 a wider range of appropriate punish-

Focusing its analysis on those differences, the

Court concluded that they did not “change the coneti-

tutional outcome.” Almendarez-Torres, 118 S. Ct. at

1230. First, the Court noted that the sentencing fac-

tor at issue—recidivism—was “a traditional, if not

the most traditional, basis for a sentencing court’s

increasing an offender’s sentence.” Ibid. Second, the

Court pointed out that a statutory minimum sen-

tence, like that at issue in McMillan, binds a sentenc-

ing judge, while an increased statutory maximum

does not. Thus, “the risk of unfairness to a particular

defendant is no less, and may well be greater, when a

mandatory minimum sentence, rather than a permis-

Ave maximum sentence, is at issue.” Jd. at 1231.

Third, the Court observed that the permissive sen-

tencing range created by treating the recidivism

provisions at issue to be sentencing factors was no

broader than the ranges within which judges have

traditionally exercised their discretion. Jd. at 1231-

1232. Finally, the Court again noted that the remain-

ing McMillan factors supported the constitutionality

of the sentencing scheme at issue: “The relevant

statutory provisions do not change a pre-existing

definition of a well-established crime, nor is there any

more reason here, than in McMillan, to think Con-

gress intended to ‘evade’ the Constitution, either by

‘presuming’ guilt or [by] ‘restructuring’ the elements

of an offense.” Ibid. Accordingly, the Court rejected

the claim that Congress could not constitutionally

expand the range of sentences authorized for an

offense without requiring the recidivism factor that

triggered the enhancement to be charged and proved

as a separate element of the underlying crime.

The Court’s analysis in — peng —

i ually to the constitutional question In this

— in both Almendarez-Torres and McMillan,

the statute at issue here does not, by terms, _

multiple offenses. It likewise “creates no pres

tions — [any] sort” in establishing the elements, and

it does nothing to “relieve the prosecution of its

burden of proving [the defendant’s] guilt * * * of the

{carjacking} crime for which he is to be punished.

McMillan, 477 U.S. at 87; see Almendarez-Torres,

4 The Court’s decisions in Almendarez-Torres and Monge

likewise preclude petitioner's attempt (Br. 42-43) to invoke the

doctrine of “constitutional doubt” on the statutory construction

question in this case. The Court declined to rely on that doc-

trine in Almendarez-Torres itself, 118 S. Ct. at 1227-1228, and

there is no greater doubt concerning the constitutionality of

the sentencing provisions at issue in this case. Indeed, in light

of the holdings of Almendarez-Torres and Monge that recidi-

vism can constitutionally be a sentencing factor that increases

the maximum sentence to which a defendant is exposed, there

is less reason here than in those cases to doubt that another

traditional sentencing factor (resulting harm from an offense)

can constitutionally do the same thing. Cf. Almendarez-Torres,

118 S. Ct. at 1238 (Scalia, J., dissenting) (noting that there is no

“rational basis” for treating recidivism as an exceptional case).

118 S. Ct. at 1230, 1232; cf. Montana v. Egelhoff, 518

U.S. 37, 54-55 (1996) (plurality opinion). In framing

the definition of armed carjacking in Section 2119,

Congress did not “change a pre-existing definition of

a well-established crime,” or give any other indication

that it was attempting to “‘evade’ the Constitution”

by “‘restructuring’ the elements of an offense” so as

to allow a sentencing “tail” to “wag{] the dog of the

substantive offense.” Almendarez-Torres, 118 S. Ct.

at 1230, 1232; McMillan, 477 U.S. at 88; compare

Monge, slip op. 2 (Scalia, J., dissenting).

As in Almendarez-Torres, there are also differ-

ences between Section 2119 and the sentencing

scheme at issue in McMillan. But as in Almen-

darez-Torres, none of those differences changes the

fundamental constitutional analysis.

B. The Range Of Available Sentences Under Section

2119 Is Not Unconstitutional

The sentencing factors set out in clauses (1)-(3) of

Section 2119, like the enhancement provisions at

issue in Almendarez-Torres, “create{] a wider range

of appropriate punishments than did the statute in

McMillan.” 118 S. Ct. at 1230; see McMillan, 477

U.S. at 81-82 & n.2, 87-88. The overall sentencing

range defined by Section 2119—up to life in prison—

is also greater than that at issue in Almendarez-

Torres, which involved a maximum sentence of 20

years’ imprisonment. That difference is consistent,

however, with the difference between unlawful re-

entry by a deported alien and carjacking, the latter

being a violent crime that inherently involves the

theft of valuable, easily transported property and

poses a significant risk of serious bodily harm to its

victims. Compare, e.g., 18 U.S.C. 1201(a) (establishing

sentencing range of “any term of years or * life“

for kidnapping, with mandatory life sentence or capi-

tal punishment “if the death of any person results”).

The 15-year sentence authorized for any carjacking

reflects the inherent seriousness of the crime. The

second and third sentencing clauses increase that

basic imprisonment range by about 66% in cases of

bodily injury, or up to perhaps four times (for a young

defendant) in cases where death results. The en-

hancements at issue in Almendarez-Torres, by con-

trast, increased an authorized maximum prison term

of two years to ten or twenty years’ imprisonment—a

five- or ten-fold enhancement. See 118 S. Ct. at 1223-

1224; see also Monge, slip op. 6. Finally, the discre-

tion that a sentencing judge is authorized to exercise

in imposing a sentence for carjacking is significantly

constrained by the very statutory sentencing factors

that are at issue here (resulting bodily injury or

death), and further channelled by the applicable fed-

eral Sentencing Guidelines. See Guidelines § 2B3.1.

Under these circumstances, the overall sentencing

range authorized by Section 2119 creates no “signifi-

cantly greater [risk of] unfairness” than the sentenc-

ing provisions at issue in Almendarez-Torres or

McMillan, and its mere breadth cannot justify a

different constitutional result.

C. The Traditional Sentencing Factors At Issue In This

Case Are Not Constitutionally Different From The

Recidivism Factor At Issue In Almendarez-Torres

Petitioner seeks to - distinguish Almendarez-

Torres on the ground that the recidivism factor in-

volved in that case is constitutionally different from

resulting injury or death. Br. 38-40; see also Monge,

slip op. 5 (Scalia, J., dissenting). Although plainly

important to the Court’s analysis, however, the spe-

cific subject matter was not, as petitioner argues (Br.

38), “the critical reason” for the Court’s decision in

Almendarez-Torres, and the reasoning of that deci-

sion applies equally to the resulting-injury factor at

issue here.

First, as discussed above (see pages 23-25, supra),

the degree of harm inflicted on victims—and, in par-

ticular, the infliction of serious or fatal bodily in-

jury—is, like recidivism, “as typical a sentencing

factor as one might imagine.” See Almendarez-

Torres, 118 S. Ct. at 1224. While victim injury may

certainly be made an element of an offense, petitioner

cannot seriously dispute that there is also nothing in

the least unusual about using it as a factor in deter-

mining the appropriate severity of a defendant’s sen-

tence. The traditional nature of the subject matter

therefore provides no basis for distinguishing be-

tween resulting injury and recidivism for purposes of

Almendarez-Torres’s constitutional analysis.

Petitioner also renews (Br. 32, 38-40), in the consti-

tutional context, his statutory argument that result-

ing injury differs from recidivism because it is “a fact

of an offense” rather than “a characteristic of the of-

fender.” That argument for a constitutional distinc-

tion, and the related argument that resulting injury

may require more factfinding than criminal history,

are unpersuasive for reasons that we have already

discussed. See pages 25-27, supra; McMillan, 477

U.S. at 92 (rejecting argument that the government

was required to prove visible possession of a firearm

by more than a preponderance of the evidence because

it was “a fact concerning the crime committed rather

than the background or character of the defendant”)

(internal quotation marks omitted). Nor is there

merit in petitioner’s suggestion (Br. 39-40) that the

admission at trial of evidence relating to resulting

injury or death would pose less risk of prejudice to

the defendant than the admission of evidence of

recidivism. Whether that is true depends largely on

whether the same evidence would be admissible for

some purpose other than determining the appropriate

sentencing range (such as, in a carjacking case, to

show the use of “force and violence”). Almendarez-

Torres itself did not discuss possible prejudice to the

defendant as part of its constitutional analysis (com-

are 118 S. Ct. at 1226 with id. at 1228-1233). By con-

trast, when the Court most recently adverted to the

issue of possible prejudice, it commented that the

avoidance of such prejudice formed one of the reasons

for rejecting “an absolute rule that a [maximum-

sentence-increasing] enhancement constitutes an

element of the offense”; and it illustrated that point

with an example involving, not recidivism, but the

quantity of controlled substances involved in a drug

offense—a fact intimately related to the circum-

stances of the crime. Monge, slip op. 6.

In any event, nothing in Almendarez-Torres’s con-

titutional analysis turns on the distinction between

criminal history and the circumstances of the offense.

See 118 S. Ct. at 1228-1233. To the contrary, in refus-

ing to adopt a constitutional rule that any factor that

increases the maximum authorized penalty should be

treated as an element of the offense, the Court noted

that any such principle “would seem anomalous in

light of existing case law that permits a judge, rather

than a jury, to determine the existence of factors that

can make a defendant eligible for the death penalty.”

118 S. Ct. at 1232. Those factors are, of course, often

ones that relate closely to “the circumstances of the

offense” (Pet. Br. 38). See, e. g., Walton v. Arizona,

497 U.S. 639, 645 (1990) (findings included that murder

was committed “in an especially heinous, cruel, or

depraved manner” and for pecuniary gain); Hildwin v.

Florido, 490 U.S. 638, 639 (1989) (per curiam) (simi-

lar); Spaziano v. Florida, 468 U.S. 447, 452 (1984)

(similar).

D. Constitutional Values Provide No Reason For

Treating Any Factor That Increases The Maximum

Statutory Penalty Based On A Crime’s Conse-

quences As An Element Of The Offense

The “major difference” between the statute before

the Court in Almendarez-Torres and the statute

approved in McMillan was that the existence of a

statutory sentencing factor under 8 U.S.C. 1326(b)

“trigger(ed] an increase in the maximum permissive

sentence, while the sentencing factor at issue in

McMillan triggered a mandatory minimum sen-

tence.” 118 S. Ct. at 1231. The same distinction ap-

plies in this case as well. But just as in Almendarez-

Torres, the difference between a permissive maximum

and a mandatory minimum sentence “does not sys-

tematically, or normally, work to the disadvantage of

a criminal defendant.” Ibid. There is, correspond-

ingly, no more reason here than in Almendarez-

Torres to hold that the minimum/maximum distine-

tion makes any constitutional difference. Ibid.; see

also Monge, slip op. 6.

Whether a particular factor “alters the maximum

penalty for the crime committed” (McMillan, 477

U.S. at 87-88), “triggers an increase in the maximum

permissive sentence” (Almendarez-Torres, 118 S. Ct.

at 1231), or “increases the maximum sentence to

which a defendant is exposed” (Monge, slip op. 6) can-

not by itself provide a sound constitutional standard

for determining whether that factor must be treated

as an element of the offense of conviction. On its face,

any such standard would reproduce the literall]“

reading of Mullaney that Almendarez-Torres “abso-

lutely” rejected. 118 S. Ct. at 1229; compare Pet. Br.

25-26. Any rule that Congress cannot prescribe sub-

sidiary metes and bounds within an overall statutory

sentencing range—as opposed to allowing judges to

set any such intermediate limits in their own discre-

tion—would render application of the mandatory

federal Sentencing Guidelines unconstitutional, un-

less every factor taken into account in setting a

defendant’s Guidelines range were charged in the

indictment and proved beyond a reasonable doubt at

trial. See 18 U.S.C. 3553(b) (use of Guidelines ranges

mandatory except for limited departure power);

United States v. R. L. C., 503 U.S. 291, 297-298, 306

(1992) (noting that Congress’s sentencing directions

are expressed through the work of the Sentencing

Commission, as well as through other criminal

statutes, and interpreting the phrase “maximum term

of imprisonment * * * authorized” for juvenile

offenders under 18 U.S.C. 5037(c) to be the maximum

sentence under the Guidelines, not the statutory

maximum); ef. Miller v. Florida, 482 U.S. at 432-435

(provisions of state sentencing guidelines sufficiently

substantive for changes to invoke protection of Ex

Post Facto Clause). Yet under this Court’s decisions,

that is incorrect. See, e.g., Edwards v. United States,

118 S. Ct. 1475, 1477 (1998) (Guidelines instruct “the

judge * * to determine” type and quantity of drugs

for which defendant is accountable “and then to

impose a sentence that varies depending upon amount

and kind”); Watts, supra; Witte, supra; cf. Almen-

darez-Torres, 118 S. Ct. at 1232 (discussing “existing

case law that permits a judge, rather than a jury, to

determine the existence of factors that can make a

defendant eligible for the death penalty, a punishment

far more severe than that faced by petitioner here”).

Petitioner does not take his argument to that logi-

cal but legally untenable conclusion. He does argue,

however, that clause (1) of Section 2119 sets a “statu-

tory maximum sentence” for his offense of 15 years’

imprisonment. Pet. Br. 41. Even on the assumption

that Congress clearly intended resulting injury or

death to be treated as sentencing factors, not ele-

ments, he contends that the “statutory maximum” de-

fined in clause (1) may not constitutionally be varied

by clause (2) or (3) of the same Section, unless the

factors they designate were charged in the indict-

ment and proved at trial. Jd. at 32, 41-42; see also

NACDL Br. 17-19. But there is no sound reason,

under the Constitution, to distinguish Section 2119

from a statute that sets a maximum penalty of life

imprisonment for carjacking, subject to implementa-

tion under mandatory guidelines (promulgated by the

Sentencing Commission) that establish escalating

sentencing ranges based on whether the offense

resulted in no serious injury, serious bodily injury, or

death. Such a statute would satisfy the letter of

petitioner’s proposed standard that all conduct-re-

lated facts that bear on the “statutory maximum”

must be “proven beyond a reasonable doubt at a trial

by jury.” Pet. Br. 32. But it would still leave the

sentencing judge with the role of making significant

findings about the facts relating to “the circum-

stance(s] of a crime,” id. at 40, and increasing the

punishment accordingly. A constitutional rule that

prohibits the direct statutory guidance found in Sec-

tion 2119, but endorses broad statutory sentencing

ranges for a defined crime subject to intermediate

binding sub-ranges promulgated by a guidelines-

issuing agency, protects no basic constitutional

value. Compare McMillan, 477 U.S. at 92 (“We have

some difficulty fathoming why the due process

calculus would change simply because the legislature

has seen fit to provide sentencing courts with addi-

tional guidance.”); Chapman v. United States, 500

U.S. 453 (1991) (“Congress has the power to define

criminal punishments without giving the courts any

sentencing discretion.”).

This is not to say that the Constitution places no

limit on Congress’s ability to define criminal of-

fenses; indeed, this Court has explicitly indicated to

the contrary. See, e.g., McMillan, 477 U.S. at 86;

Monge, slip op. 6 (One could imagine circumstances

in which fundamental fairness would require that a

particular fact be treated as an element of the

offense.”). Beyond explicit restrictions such as the

Ex Post Facto Clause (U.S. Const., Art. I, § 9, Cl. 3),

and limits that follow from individual constitutional

rights (e.g., United States v. Eichman, 496 U.S. 310

(1990)), the Court has been alert to the possibility

that a legislature might “change a pre-existing defi-

nition of a well-established crime” (118 S. Ct. at 1232),

departing from the pattern of a traditional offense in a

manner that would “offend[{] some principle of justice

so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Patterson,

432 U.S. at 202; Egelhoff, 518 U.S. at 58-59 (Ginsburg,

J., concurring in the judgment); McMillan, 477 U.S.

at 88. Other principles, such as the Eighth Amend-

ment’s requirement of proportionality, or the re-

quirement that a criminal law give fair notice of the

conduct it prohibits, might also apply to check

hypothetical attempts at legislative evasion. See, e.g.,

Monge, slip op. 2 (Scalia, J., dissenting) (all-purpose

criminal prohibition of “knowingly causing injury to

another,” supplemented by extensive “sentencing

factors” strongly resembling traditional offense ele-

ments). On a somewhat different point, the Court has

also reserved the question whether some heightened

degree of procedural protection might apply to the

proof, at sentencing, of facts on which a judge bases a

particularly dramatic increase in sentence (whether

or not that increase is dictated by a statute or sen-

tencing guideline). See Almendarez-Torres, 118 S.

Ct. at 1233; Watts, 117 S. Ct. at 637-638 & n.2.

Any of these possible constitutional protections

against legislative abuse of the criminal process must

be applied with restraint, lest it interfere unduly with

the traditional, and wholly legitimate, prerogative of

the States and Congress to define both what consti-

tutes criminal conduct and how that conduct, once

established, is to be punished. Nothing in this case,

however, requires the Court to address the outer con-

stitutional boundaries of legislative power. Section

2119 supplies a clear definition of a serious criminal

offense and specifies an overall sentencing range,

subdivided into intermediate ranges that apply based

on whether the court finds that serious bodily injury

or death resulted from the defendant’s commission of

the crime. The crime itself is a variation on the tradi-

tional robbery offense, and the sentencing factors,

also typical ones in the law, are reasonably related to

penalties that reflect increased resulting harms. The

statute gives fair notice of the conduct it prohibits

and the penalties at issue, and there can be no claim

here that petitioner lacked notice of the charges

against him at trial or of the facts in issue at sen-

tencing. Because nothing in the Due Process Clause

or any other provision of the Constitution requires

that every factor relevant to such sentencing deter-

minations be charged in the indictment or proved at

trial, the statutory scheme under which petitioner

was sentenced is constitutional.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.