Busic v. United States

Mr. Justice Rehnquist,

dissenting.

I dissented from this Court’s decision in Simpson v. United States, 435 U. S. 6 (1978), and continue to believe that case was wrongly decided. Now, as then, I am quite amazed at this Court’s ability to say that 18 U. S. C. § 924 (c) “tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-exist-ing statutes defining federal crimes,” ante, at 405, even though that section provides quite clearly that the use of a firearm in the commission of “any felony” shall be punished by up to 10 years’ imprisonment “in addition to the punishment provided for the commission-of such felony. . . .” Nor do I find any more persuasive the Court’s rehash of the legislative history of § 924 (c), including Simpson’s unwarranted reliance upon the remark of Representative Poff, a remark that the Court today labels “the Poff rule,” see ante, at 409, n. 14, and that might more properly be labeled “the Poff amendment” (albeit not intended as such by its proponent).

Were Simpson demonstrably a case of statutory construction, I could acquiesce to the Court’s reading of § 924 (c) in *418the interest of stare decisis. Simpson, however, was based to an unstated degree on this Court’s assumption that § 924 (c) raised “the prospect of double jeopardy” because it provided for additional punishment on “precisely the same factual showing” as would be necessary for conviction of the underlying felony involved in that case. See 435 U. S., at 11. In" Simpson the Court treated the question of the constitutionality of § 924 (c) as if it were separate from the question whether Congress intended to allow cumulative punishment, insisting at one point that “[b]efore an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary . . . to determine whether Congress intended to subject the defendant to multiple penalties for the single criminal transaction in which he engaged.” 435 U. S., at 11-12. In dissent, I noted the constitutional undercurrents of the Court’s opinion and suggested its concerns were “gauzy” and “metaphysic[al].” Id., at 18.

Recently, this Court unanimously rejected Simpson’s constitutional premise. In Whalen v. United States, 445 U. S. 684 (1980), six Members of this Court held that Congress’ intent to impose cumulative punishments at a single criminal proceeding completely controlled the question of double jeopardy. See id., at 688-689; id., at 697-698 (Blackmun, J., concurring in judgment). See also ante, at 413; (Blackmun, J., concurring). Three other Members of this Court, including myself, argued that the permissibility of cumulative punishments in the same criminal proceeding presented no double jeopardy question whatsoever. See Whalen v. United States, supra, at 696 (White, J., concurring in part and concurring in judgment); at 701-707 (Rehnquist, J., joined by Burger, C. J., dissenting). I believe that this Court, having thus disposed of Simpson’s constitutional underpinnings, should reconsider its holding that § 924 (c) does not, in fact, apply to “any felony.”

*419I know of no cases besides Simpson and the present decision where this Court has taken a criminal statute absolutely clear on its face, has looked to the legislative history to create an “ambiguity,” and then has resolved that ambiguity in a manner totally at odds with the statute’s plain wording. Because I believe Simpson was wrongly decided, and because this Court has now repudiated Simpson’s constitutional premise, I would overrule Simpson, vacate the judgments below, and remand for reconsideration by the Court of Appeals.