United States v. Rodriquez

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. RODRIQUEZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 06–1646. Argued January 15, 2008—Decided May 19, 2008
Upon respondent’s federal conviction for possession of a firearm by a
convicted felon, 18 U. S. C. §922(g)(1), he had three prior Washington
state convictions for delivery of a controlled substance. At the time of
those convictions, Washington law specified a maximum 5-year
prison term for the first such offense. A recidivist provision, however,
set a 10-year ceiling for a second or subsequent offense, and the state
court had sentenced respondent to concurrent 48-month sentences on
each count. The Government contended in the federal felon-in-
possession case that respondent should be sentenced under the
Armed Career Criminal Act (ACCA), §924(e), which sets a 15-year
minimum sentence “[i]n the case of a person who violates [§922(g)]
and has three previous convictions . . . for a . . . serious drug offense,”
§924(e)(1). Because a state drug-trafficking conviction qualifies as “a
serious drug offense” if “a maximum term of imprisonment of ten
years or more is prescribed by law” for the “offense,” §924(e)(2)(A)(ii),
and the maximum term on at least two of respondent’s Washington
crimes was 10 years under the state recidivist provision, the Gov-
ernment argued that these convictions had to be counted under
ACCA. The District Court disagreed, holding that the “maximum
term of imprisonment” for §924(e)(2)(A)(ii) purposes is determined
without reference to recidivist enhancements. The Ninth Circuit af-
firmed.
Held: The “maximum term of imprisonment . . . prescribed by law” for
the state drug convictions at issue was the 10-year maximum set by
the applicable state recidivist provision. Pp. 3–14.
(a) This reading is compelled by a straightforward application of
§924(e)(2)(A)(ii)’s three key terms: “offense,” “law,” and “maximum
term.” The “offense” was the crime charged in each of respondent’s
2 UNITED STATES v. RODRIQUEZ

Syllabus
drug-delivery cases. And because the relevant “law” is the state
statutes prescribing 5- and 10-year prison terms, the “maximum
term” prescribed for at least two of respondent’s state drug offenses
was 10 years. The Ninth Circuit’s holding that the maximum term
was 5 years contorts ACCA’s plain terms. Although the state court
sentenced respondent to 48 months, there is no dispute that state law
permitted a sentence of up to 10 years. The Circuit’s interpretation
is also inconsistent with how the concept “maximum term of impris-
onment” is customarily understood by participants in the criminal
justice process. Pp. 3–5.
(b) Respondent’s textual argument—that because “offense” gener-
ally describes a crime’s elements, while prior convictions required for
recidivist enhancements are not typically elements, such convictions
are not part of the ACCA “offense,” and the “maximum term” for the
convictions at issue was the 5-year ceiling for simply committing the
drug offense elements—is not faithful to the statutory text, which re-
fers to the maximum 10-year term prescribed by Washington law for
each of respondent’s two relevant offenses. Respondent’s “manifest
purpose” argument—that because ACCA uses the maximum state-
law penalty as shorthand for conduct sufficiently serious to trigger
the mandatory penalty, while an offense’s seriousness is typically
gauged by the nature of the defendant’s conduct, the offense’s ele-
ments, and the crime’s impact, a defendant’s recidivist status has no
connection to whether his offense was serious—rests on the errone-
ous proposition that a prior record has no bearing on an offense’s se-
riousness. Respondent’s understanding of recidivism statutes has
been has squarely rejected. See, e.g., Nichols v. United States, 511
U. S. 738, 747. Pp. 5–7.
(c) Respondent’s argument that the Court’s ACCA interpretation
produces a perverse bootstrapping whereby a defendant is punished
under federal law for being treated as a recidivist under state law is
rejected. The Court’s reading is bolstered by the fact that ACCA is
itself a recidivist statute, so that Congress must have understood
that the “maximum penalty prescribed by [state] law” could be in-
creased by state recidivism provisions. Contrary to respondent’s sug-
gestion, United States v. LaBonte, 520 U. S. 751—in which the Court
held that the phrase “maximum term authorized” in 28 U. S. C.
§994(h) “refers to all applicable statutes,” including recidivist en-
hancements—supports the Court’s ACCA interpretation. Respon-
dent’s reliance on Taylor v. United States, 495 U. S. 575, is also mis-
placed: There is no connection between the issue there (the meaning
of “burglary” in §924(e)(2)(B)(ii)) and the meaning of “maximum term
of imprisonment . . . prescribed by law” in §924(e)(2)(A)(ii). Respon-
dent argues unpersuasively that, under today’s interpretation, of-
fenses that are not really serious will be included as “serious drug of-
 Cite as: 553 U. S. ____ (2008) 3

Syllabus
fense[s]” because of recidivist enhancements. Since Congress pre-
sumably thought that state lawmakers must consider a crime “seri-
ous” when they provide a 10-year sentence for it, this Court’s holding
poses no risk that a drug-trafficking offense will be treated as “seri-
ous” without satisfying the standard Congress prescribed. Pp. 7–9.
(d) Also rejected is respondent’s argument that the Court’s holding
will often require federal courts to engage in difficult inquiries re-
garding novel state-law questions and complex factual determina-
tions about long-past state-court proceedings. Respondent greatly
exaggerates the difficulties because (1) receipt of a recidivist en-
hancement will necessarily be evident from the sentence’s length in
some cases; (2) the conviction judgment will sometimes list the
maximum possible sentence even where the sentence actually im-
posed did not exceed the top sentence allowed without recidivist en-
hancement; (3) some jurisdictions require the prosecution to submit a
publicly available charging document to obtain a recidivist enhance-
ment; (4) a plea colloquy will often include a statement by the trial
judge regarding the maximum penalty; and (5) where the records do
not show that the defendant faced a recidivist enhancement, the
Government may well be precluded from establishing that a convic-
tion was for a qualifying offense. Merely because future cases might
present difficulties cannot justify disregarding ACCA’s clear mean-
ing. Pp. 10–11.
(e) Also unavailing is respondent’s argument that if recidivist en-
hancements can increase the “maximum term” under ACCA, then
mandatory guidelines systems capping sentences can decrease the
“maximum term,” whereas Congress cannot have wanted to make the
“maximum term” dependent on the complexities of state sentencing
guidelines. The phrase “maximum term of imprisonment . . . pre-
scribed by law” for the “offense” could not have been meant to apply
to the top sentence in a guidelines range because (1) such a sentence
is generally not really the maximum because guidelines systems
typically allow a sentencing judge to impose a sentence that exceeds
the top of the guidelines range under appropriate circumstances; and
(2) in all of the many statutes predating ACCA and the federal Sen-
tencing Reform Act of 1984 that used the concept of the “maximum”
term prescribed by law, the concept necessarily referred to the maxi-
mum term prescribed by the relevant criminal statute, not the top of
a sentencing guideline range. United States v. R. L. C., 503 U. S.
291, 295, n. 1, 299, distinguished. Pp. 11–14.
464 F. 3d 1072, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined. SOUTER, J.,
filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.
 Cite as: 553 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1646
_________________

UNITED STATES, PETITIONER v. GINO RODRIQUEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 19, 2008]

JUSTICE ALITO delivered the opinion of the Court.
Under the Armed Career Criminal Act (ACCA), 18
U. S. C. §924(e)(2)(A)(ii), a state drug-trafficking convic-
tion qualifies as “a serious drug offense” if “a maximum
term of imprisonment of ten years or more is prescribed by
law” for the “offense.” The Court of Appeals for the Ninth
Circuit held that “the maximum term of imprisonment . . .
prescribed by law” must be determined without taking
recidivist enhancements into account. 464 F. 3d 1072,
1082 (2006). We reverse.
I
At issue in this case is respondent’s sentence on his
2004 conviction in the United States District Court for the
Eastern District of Washington for possession of a firearm
by a convicted felon, in violation of 18 U. S. C. §922(g)(1).
Respondent had two prior state convictions in California
for residential burglary and three state convictions in
Washington for delivery of a controlled substance, in
violation of Wash. Rev. Code §§69.50.401(a)(1)(ii)–(iv)
(1994).1 Respondent’s three Washington drug convictions
——————
1 “Except as authorized by this chapter, it is unlawful for any person
2 UNITED STATES v. RODRIQUEZ

Opinion of the Court

occurred on the same day but were based on deliveries
that took place on three separate dates. Sentencing Order
No. CR–03–142–RHW (ED Wash., Sept. 3, 2004), p. 5,
App. 245, 250 (hereinafter Sentencing Order). At the time
of respondent’s drug offenses, the Washington statute that
respondent was convicted of violating stated that, upon
conviction, a defendant could be “imprisoned for not more
than five years,” §§69.50.401(a)(1)(ii)–(iv), but another
provision specified that “[a]ny person convicted of a second
or subsequent offense” could “be imprisoned for a term up
to twice the term otherwise authorized,” §69.50.408(a).
Thus, by virtue of this latter, recidivist, provision respon-
dent faced a maximum penalty of imprisonment for 10
years. The judgment of conviction for each of the drug-
delivery charges listed the maximum term of imprison-
ment for the offense as “ten years,” App. 16, 42, 93, but the
state court sentenced respondent to concurrent sentences
of 48 months’ imprisonment on each count. Id., at 21, 47,
98.
In the federal felon-in-possession case, the Government
asked the District Court to sentence respondent under
ACCA, which sets a 15-year minimum sentence “[i]n the
case of a person who violates section 922(g) of [Title 18]
and has three previous convictions . . . for a violent felony
or a serious drug offense, or both, committed on occasions
different from one another . . . .” 18 U. S. C. §924(e)(1)
(2000 ed., Supp. V). The Government argued that respon-
dent’s two prior California burglary convictions were for
“ ‘violent felonies.’ ” Pet. for Cert. 4. See §924(e)(2)(B)(ii)
(2000 ed.) (listing “burglary” as a “violent felony”). The
District Court agreed, and that ruling is not at issue here.
The Government also argued that at least two of re-
spondent’s Washington drug convictions were for “serious
——————

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

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

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

Opinion of the Court

drug offense[s].” Under ACCA, a “serious drug offense”
includes:
“an offense under State law, involving manufacturing,
distributing, or possessing with intent to distribute, a
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U. S. C. 802)), for
which a maximum term of imprisonment of ten years
or more is prescribed by law.” §924(e)(2)(A) (emphasis
added).
Because the maximum term that respondent faced on at
least two of the Washington charges was 10 years, the
Government contended that these convictions had to be
counted under ACCA. The District Court disagreed, hold-
ing that respondent’s drug-trafficking convictions were not
convictions for “serious drug offense[s]” under ACCA
because the “maximum term of imprisonment” for the
purposes of §924(e)(2)(A)(ii) is determined without refer-
ence to recidivist enhancements. Sentencing Order, at 9,
App. 254.
The Court of Appeals for the Ninth Circuit, applying its
prior precedent in United States v. Corona-Sanchez, 291
F. 3d 1201 (2002) (en banc), affirmed. 464 F. 3d 1072.
The Court recognized that its decision conflicted with the
Seventh Circuit’s decision in United States v. Henton, 374
F. 3d 467, 469–470, cert. denied, 543 U. S. 967 (2004), and
was “in tension” with decisions of the Fourth and Fifth
Circuits. 464 F. 3d, at 1082, n. 6; see Mutascu v. Gonzales,
444 F. 3d 710, 712 (CA5 2006) (per curiam); United States
v. Williams, 326 F. 3d 535, 539 (CA4 2003). We granted
the Government’s petition for a writ of certiorari, 551 U. S.
___ (2007).
II
The question that we must decide is whether the
“maximum term of imprisonment prescribed by law” in
this case is, as respondent maintains and the Ninth Cir-
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Opinion of the Court

cuit held, the 5-year ceiling for first offenses or, as the
Government contends, the 10-year ceiling for second or
subsequent offenses. See Wash. Rev. Code §§69.50.401(a)
(ii)–(iv), 69.50.408(a).
The Government’s reading is compelled by the language
of ACCA. For present purposes, there are three key statu-
tory terms: “offense,” “law,” and “maximum term.” The
“offense” in each of the drug-delivery cases was a violation
of §§69.50.401(a)(ii)–(iv). The relevant “law” is set out in
both that provision, which prescribes a “maximum term”
of five years for a first “offense,” and §69.50.408(a), which
prescribes a “maximum term” of 10 years for a second or
subsequent “offense.” Thus, in this case, the maximum
term prescribed by Washington law for at least two of
respondent’s state drug offenses was 10 years.
The Ninth Circuit’s holding that the maximum term
was five years contorts ACCA’s plain terms. Although the
Washington state court sentenced respondent to 48
months’ imprisonment, there is no dispute that
§69.50.408(a) permitted a sentence of up to 10 years. On
the Ninth Circuit’s reading of ACCA, even if respondent
had been sentenced to, say, six years’ imprisonment, “the
maximum term of imprisonment” prescribed by law still
would have been five years. It is hard to accept the propo-
sition that a defendant may lawfully be sentenced to a
term of imprisonment that exceeds the “maximum term of
imprisonment . . . prescribed by law,” but that is where the
Ninth Circuit’s reading of the statute leads.
The Ninth Circuit’s interpretation is also inconsistent
with the way in which the concept of the “maximum term
of imprisonment” is customarily understood by partici-
pants in the criminal justice process. Suppose that a
defendant who indisputably had more than three prior
convictions for “violent felon[ies]” or “serious drug of-
fense[s]” was charged in federal court with violating the
felon-in-possession statute. Under ACCA, this defendant
 Cite as: 553 U. S. ____ (2008) 5

Opinion of the Court

would face a sentence of “not less than 15 years.” 18
U. S. C. §924(e)(1) (2000 ed., Supp. V). Suppose that the
defendant asked his or her attorney, “What’s the maxi-
mum term I face for the new offense?” An attorney aware
of ACCA would surely not respond, “10 years,” even
though 10 years is the maximum sentence without the
ACCA enhancement. See §924(a)(2) (2000 ed.).
Suppose that the defendant then pleaded guilty to the
felon-in-possession charge. Under Federal Rule of Crimi-
nal Procedure 11(b)(1)(H), the trial judge would be re-
quired to advise the defendant of the “maximum possible
penalty.” If the judge told the defendant that the maxi-
mum possible sentence was 10 years and then imposed a
sentence of 15 years based on ACCA, the defendant would
have been sorely misled and would have a ground for
moving to withdraw the plea. See United States v. Gon-
zalez, 420 F. 3d 111, 132 (CA2 2005); United States v.
Harrington, 354 F. 3d 178, 185–186 (CA2 2004). In sum, a
straightforward application of the language of ACCA leads
to the conclusion that the “maximum term of imprison-
ment prescribed by law” in this case was 10 years.
III

A

In an effort to defend the Ninth Circuit’s decision, re-
spondent offers both a textual argument and a related
argument based on the “manifest purpose” of ACCA. Brief
for Respondent 8.
Respondent’s textual argument is as follows. The term
“offense” “generally is understood to describe the elements
constituting the crime.” Id., at 10. Because prior convic-
tions required for recidivist enhancements are not typi-
cally offense elements, they should not be considered part
of the “offense” under ACCA. Thus, the “maximum term
of imprisonment prescribed by law” for the drug convic-
tions at issue was the maximum term prescribed for sim-
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Opinion of the Court

ply committing the elements of the drug offense and was
therefore five years. Id., at 10–11.
Respondent’s argument is not faithful to the statutory
text. Respondent reads ACCA as referring to “the maxi-
mum term of imprisonment prescribed by law” for a de-
fendant with no prior convictions that trigger a recidivist
enhancement, but that is not what ACCA says. ACCA
instead refers to “the maximum term of imprisonment
prescribed by law” for “an offense,” and, as previously
explained, in this case, the maximum term prescribed by
Washington law for each of respondent’s two relevant
offenses was 10 years.
Respondent’s argument based on ACCA’s “manifest
purpose” must also be rejected. Respondent argues that
ACCA uses “the maximum penalty specified for the of-
fense by state law as a short-hand means of identifying
conduct deemed sufficiently ‘serious’ to trigger [the] man-
datory penalty.” Id., at 9. According to respondent, “[t]he
nature of [a defendant’s] conduct, the elements of the
offense, and the impact of the crime . . . are the character-
istics that typically are used to gauge the ‘seriousness’ of
an offense,” and a defendant’s “status as a recidivist has
no connection to whether the offense committed by the
defendant was a ‘serious’ one.” Id., at 11.
This argument rests on the erroneous proposition that a
defendant’s prior record of convictions has no bearing on
the seriousness of an offense. On the contrary, however,
an offense committed by a repeat offender is often thought
to reflect greater culpability and thus to merit greater
punishment. Similarly, a second or subsequent offense is
often regarded as more serious because it portends greater
future danger and therefore warrants an increased sen-
tence for purposes of deterrence and incapacitation. See
Witte v. United States, 515 U. S. 389, 403 (1995); Spencer
v. Texas, 385 U. S. 554, 570 (1967) (Warren, C. J., dissent-
ing in two judgments and concurring in one).
 Cite as: 553 U. S. ____ (2008) 7

Opinion of the Court

If respondent were correct that a defendant’s record of
prior convictions has no bearing on the seriousness of an
offense, then it would follow that any increased punish-
ment imposed under a recidivist provision would not be
based on the offense of conviction but on something else—
presumably the defendant’s prior crimes or the defen-
dant’s “status as a recidivist,” Brief for Respondent 11.
But we have squarely rejected this understanding of re-
cidivism statutes. In Nichols v. United States, 511 U. S.
738 (1994), we explained that “ ‘[t]his Court consistently
has sustained repeat-offender laws as penalizing only the
last offense committed by the defendant.’ ” Id., at 747
(quoting Baldasar v. Illinois, 446 U. S. 222, 232 (1980)
(Powell, J., dissenting)). When a defendant is given a
higher sentence under a recidivism statute—or for that
matter, when a sentencing judge, under a guidelines
regime or a discretionary sentencing system, increases a
sentence based on the defendant’s criminal history—100%
of the punishment is for the offense of conviction. None is
for the prior convictions or the defendant’s “status as a
recidivist.” The sentence “is a stiffened penalty for the
latest crime, which is considered to be an aggravated
offense because [it is] a repetitive one.” Gryger v. Burke,
334 U. S. 728, 732 (1948).
B
Respondent argues that our interpretation of ACCA
produces “a sort of perverse bootstrapping” under which a
defendant is “punished under federal law for being treated
as a recidivist under state law,” Brief for Respondent 20
(emphasis deleted), but the fact that ACCA is itself a
recidivist statute bolsters our reading. Since ACCA is a
recidivist statute, Congress must have had such provisions
in mind and must have understood that the “maximum
penalty prescribed by [state] law” in some cases would be
increased by state recidivism provisions.
Contrary to respondent’s suggestion, United States v.
8 UNITED STATES v. RODRIQUEZ

Opinion of the Court

LaBonte, 520 U. S. 751 (1997), supports our interpretation
of ACCA. The statute at issue in LaBonte, a provision of
the Sentencing Reform Act of 1984, as amended, 28
U. S. C. §994(h), directed the United States Sentencing
Commission to “assure” that the Sentencing Guidelines
specify a prison sentence “at or near the maximum term
authorized for categories of” adult offenders who commit
their third felony drug offense or violent crime. We held
that the phrase “maximum term authorized” “refers to all
applicable statutes,” including recidivist enhancements.
520 U. S., at 758, n. 4.
Respondent claims that LaBonte supports his position
because ACCA, unlike 28 U. S. C. §994(h), does not refer
to “categories of” offenders. Respondent suggests that
Congress’ failure to include such language in ACCA means
that Congress intended to refer to a “maximum term” that
does not depend on whether a defendant falls into the
first-time-offender or recidivist “category.” Respondent
does not explain how 18 U. S. C. §924(e)(2)(A) could have
easily been reworded to mirror 28 U. S. C. §994(h). But in
any event, the language used in ACCA, for the reasons
explained above, is more than clear enough.
Respondent argues that the Ninth Circuit’s decision is
supported by the so-called “categorical” approach that we
used in Taylor v. United States, 495 U. S. 575 (1990), in
determining which offenses qualify as “violent felon[ies]”
under 18 U. S. C. §924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii)
provides that four enumerated crimes—burglary, arson,
extortion, and offenses involving the use of explosives—
are “violent felon[ies]” for ACCA purposes. In Taylor, we
held that Congress intended for these crimes to have a
“uniform definition” that was “independent of the labels
employed by the various States’ criminal codes.” Id., at
592. According to respondent, “[t]he categorical approach
rests on the congressional intent—reflected in the statu-
tory language—to focus the ACCA inquiry on the offense
 Cite as: 553 U. S. ____ (2008) 9

Opinion of the Court

of conviction, rather than on collateral matters unrelated
to the definition of the crime.” Brief for Respondent 12.
We see no connection, however, between the issue in
Taylor (the meaning of the term “burglary” in
§924(e)(2)(B)(ii)) and the issue here (the meaning of the
phrase “maximum term of imprisonment . . . prescribed by
law” under §924(e)(2)(A)(ii)). Taylor held that the mean-
ing of “burglary” for purposes of ACCA does not depend on
the label attached by the law of a particular State, 495
U. S., at 600–601, but the “maximum penalty prescribed
by law” for a state offense necessarily depends on state
law.
For a similar reason, we reject respondent’s argument
that, under our interpretation, offenses that are not really
serious will be included as “serious drug offense[s]” be-
cause of recidivist enhancements. In §924(e)(2)(A)(ii),
Congress chose to rely on the “maximum term of impris-
onment . . . prescribed” by state law as the measure of the
seriousness of state offenses involving the manufacture,
distribution, or possession of illegal drugs. Congress
presumably thought—not without reason—that if state
lawmakers provide that a crime is punishable by 10 years’
imprisonment, the lawmakers must regard the crime as
“serious,” and Congress chose to defer to the state law-
makers’ judgment. Therefore, our interpretation poses no
risk that a drug-trafficking offense will be treated as a
“serious” without satisfying the standard that Congress
prescribed.2
——————
2 In any event, the only “minor drug crime” that respondent identifies
as potentially constituting an ACCA predicate based on recidivist
enhancement is distribution of a 21 U. S. C. §812, Schedule III narcotic
in violation of Mich. Comp. Laws Ann. §333.7401(2)(b)(ii) (West Supp.
2007). Given that Schedule III substances include anabolic steroids
and painkillers with specified amounts of certain narcotics like opium,
see 21 U. S. C. §812, one might debate respondent’s assertion that
distribution of these narcotics is not “serious” in the generic sense of the
10 UNITED STATES v. RODRIQUEZ

Opinion of the Court

C

Respondent argues that it will often be difficult to de-
termine whether a defendant faced the possibility of a
recidivist enhancement in connection with a past state
drug conviction and that therefore our interpretation of
ACCA will require the federal courts to “engage in difficult
inquiries regarding novel questions of state law and com-
plex factual determinations about long-past proceedings in
state courts.” Brief for Respondent 21. Respondent
greatly exaggerates the problems to which he refers.
First, in some cases, a defendant will have received a
recidivist enhancement, and this will necessarily be evi-
dent from the length of the sentence imposed. Second, as
the present case illustrates, see App. 16, 42, 93, the judg-
ment of conviction will sometimes list the maximum pos-
sible sentence even where the sentence that was imposed
did not exceed the top sentence allowed without any re-
cidivist enhancement. Third, as respondent himself notes,
some jurisdictions require that the prosecution submit a
formal charging document in order to obtain a recidivist
enhancement. See Brief for Respondent 33. Such docu-
ments fall within the limited list of generally available
documents that courts already consult for the purpose of
determining if a past conviction qualifies as an ACCA
predicate. See Shepard v. United States, 544 U. S. 13, 20
(2005). Fourth, in those cases in which the defendant
pleaded guilty to the state drug charges, the plea colloquy
will very often include a statement by the trial judge
regarding the maximum penalty. This is mandated by
Federal Rule of Criminal Procedure 11(b)(1)(H), and many

——————

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

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

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

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

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

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

Opinion of the Court

States have similar requirements.3 Finally, in those cases
in which the records that may properly be consulted do not
show that the defendant faced the possibility of a recidi-
vist enhancement, it may well be that the Government
will be precluded from establishing that a conviction was
for a qualifying offense. The mere possibility that some
future cases might present difficulties cannot justify a
reading of ACCA that disregards the clear meaning of the
statutory language.
D
Respondent’s last argument is that if recidivist en-
hancements can increase the “maximum term” of impris-
onment under ACCA, it must follow that mandatory
guidelines systems that cap sentences can decrease the
“maximum term” of imprisonment. Brief for Respondent
38. In each situation, respondent argues, the “maximum
term” of imprisonment is the term to which the state court
could actually have sentenced the defendant. Respondent
concedes that he has waived this argument with respect to
his own specific state-court convictions. See Brief in Op-
position 15, n. 7. He argues, however, that Congress
cannot have wanted to make the “maximum term” of
imprisonment for ACCA purposes dependent on the com-
plexities of state sentencing guidelines. We conclude,
however, that the phrase “maximum term of imprison-
ment . . . prescribed by law” for the “offense” was not

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

Ann. §15A–1022(a)(6) (Lexis 2007); Tex. Crim. Proc. Code Ann.
§§26.13(a)(1), (d) (West Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(1)(ii)
(Lexis 2007); Fla. Rule Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga.
Uniform Super. Ct. Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule
402(a)(2) (West 2007); Pa. Rule Crim. Proc. 590, comment (West 2008);
Ohio Rule Crim. Proc. 11(C)(2)(a) (West 2008); Mich. Rule Crim. Proc.
6.302(B)(2) (West 2007); Alexander v. State, 605 So. 2d 1170, 1172
(Miss. 1992); Bunnell v. Superior Court, 13 Cal. 3d 592, 604–605, 531
P. 2d 1086, 1094 (1975).
12 UNITED STATES v. RODRIQUEZ

Opinion of the Court

meant to apply to the top sentence in a guidelines range.
First, the top sentence in a guidelines range is generally
not really the “maximum term . . . prescribed by law” for
the “offense” because guidelines systems typically allow a
sentencing judge to impose a sentence that exceeds the top
of the guidelines range under appropriate circumstances.
The United States Sentencing Guidelines, for example,
permit “upward departures,” see United States Sentenc-
ing Commission, Guidelines Manual §5K2.0 (Nov. 2007),
and essentially the same characteristic was shared by all
of the mandatory guidelines system in existence at the
time of the enactment of the ACCA provision at issue in
this case.4 (Following this pattern, Washington law like-
wise provided at the time of respondent’s state convictions
that a sentencing judge could “impose a sentence outside
the standard sentence range” upon a finding “that there
[were] substantial and compelling reasons justifying an
exceptional sentence.” Wash. Rev. Code §9.94A.120(2)
(1994).5)
——————
4 By 1986, when Congress added the relevant statutory language, see

Pub. L. 99–570, §1402, 100 Stat. 3207–39, eight States had guidelines
systems in effect. See Frase, State Sentencing Guidelines: Diversity,
Consensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190,
1196, Table 1 (2005). Two of those States (Utah and Maryland) had
voluntary guidelines, id., at 1198, and the other six States had guide-
lines systems that allowed for sentences in excess of the recommended
range in various circumstances, see People v. Miles, 156 Mich. App. 431,
437, 402 N. W. 2d 34, 37 (1986) (remanding for the trial court to state
reasons for upward departure); Staats v. State, 717 P. 2d 413, 422
(Alaska App. 1986) (affirming upward departure); State v. Armstrong,
106 Wash. 2d 547, 549–550, 723 P. 2d 1111, 1113–1114 (1986) (en banc)
(same); State v. Mortland, 395 N. W. 2d 469, 474 (Minn. App. 1986)
(same); Walker v. State, 496 So. 2d 220 (Fla. App. 1986) (per curiam)
(same); Commonwealth v. Mills, 344 Pa. Super. 200, 204, 496 A. 2d 752,
754 (1985) (same).
5 While Washington law provided a list of “illustrative factors which

the court [could] consider in the exercise of its discretion to impose an
exceptional sentence,” the list was “not intended to be exclusive” of
 Cite as: 553 U. S. ____ (2008) 13

Opinion of the Court

Second, the concept of the “maximum” term of impris-
onment or sentence prescribed by law was used in many
statutes that predated the enactment of ACCA and the
federal Sentencing Reform Act of 1984, Pub. L. 98–473,
§211, 98 Stat. 1987, and in all those statutes the concept
necessarily referred to the maximum term prescribed by
the relevant criminal statute, not the top of a sentencing
guideline range. See, e.g., 18 U. S. C. §3 (1982 ed.) (“[A]n
accessory after the fact shall be imprisoned not more than
one-half the maximum term of imprisonment . . . for the
punishment of the principal”); §3575(b) (allowing for an
increased sentence for dangerous special offenders “not
disproportionate in severity to the maximum term other-
wise authorized by law for” the underlying felony); see also
§371 (the punishment for conspiracy to commit a misde-
meanor “shall not exceed the maximum punishment pro-
vided for such misdemeanor”); §3651 (allowing for con-
finement and suspension of sentence upon conviction of an
offense not punishable by death or life imprisonment “if
the maximum sentence for such offense is more than six
months”); §3653 (referring to the “maximum probation
period”).
It is instructive that, even in the Sentencing Reform
Act, the concept of the “maximum term of imprisonment”
prescribed for an offense was used in this sense. See §212,
98 Stat. 1991–1992 (new 18 U. S. C. §3559 classifying
offenses based on “the maximum term of imprisonment
authorized . . . by the statute describing the offense”);
§235(b)(1)(F), 98 Stat. 2032 (“The maximum term of im-
prisonment in effect on the effective date [of the Sentenc-
ing Reform Act]” remains in effect for five years after the
effective date “for an offense committed before the effec-
tive date”); §1003(a), id., at 2138 (solicitation to commit a
crime of violence punishable by “one-half the maximum
——————

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

14 UNITED STATES v. RODRIQUEZ

Opinion of the Court

term of imprisonment . . . prescribed for the punishment of
the crime solicited”). In light of this established pattern
and the relative newness of sentencing guidelines systems
when the ACCA provision at issue here was added, we
conclude that Congress meant for the concept of the
“maximum term of imprisonment” prescribed by law for
an “offense” to have same meaning in ACCA.
Our decision in United States v. R. L. C., 503 U. S. 291
(1992), is not to the contrary. The statutory provision
there, 18 U. S. C. §5037(c) (2000 ed.), set out the term of
official detention for a juvenile found to be a delinquent.
This provision was amended by the Sentencing Reform
Act, see §214, 98 Stat. 2013, and then amended again two
years later, see §§21(a)(2)–(4), 100 Stat. 3596. As thus
amended, the provision did not refer to the “maximum
term of imprisonment” prescribed for an “offense.” Rather,
the provision focused on the particular juvenile being
sentenced. It provided that, “ ‘in the case of a juvenile who
is less than eighteen years old,’ ” official detention could
not extend beyond the earlier of two dates: the juvenile’s
21st birthday or “ ‘the maximum term of imprisonment
that would be authorized if the juvenile had been tried
and convicted as an adult.’ ” United States v. R. L. C.,
supra, at 295–296, n. 1 (quoting 18 U. S. C. §5037(c)).
Because this provision clearly focuses on the circum-
stances of the particular juvenile and not on the offense,
503 U. S., at 299, it is not analogous to the ACCA provi-
sion that is before us in this case.
* * *
For these reasons, we hold that the “maximum term of
imprisonment . . . prescribed by law” for the state drug con-
victions at issue in this case was the 10-year maximum set by
the applicable recidivist provision. Accordingly, we reverse
the judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
 Cite as: 553 U. S. ____ (2008) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–1646
_________________

UNITED STATES, PETITIONER v. GINO RODRIQUEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 19, 2008]

JUSTICE SOUTER, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, dissenting.
The Court chooses one reading of the Armed Career
Criminal Act (ACCA), 18 U. S. C. §924(e) (2000 ed. and
Supp. V), over another that would make at least as much
sense of the statute’s ambiguous text and would follow the
counsel of a tradition of lenity in construing perplexing
criminal laws. The Court’s choice, moreover, promises
hard times for the trial courts that will have to make the
complex sentencing calculations this decision demands. I
respectfully dissent.
I
The ACCA mandates a 15-year minimum sentence for
anyone convicted of violating §922(g) (2000 ed.) who “has
three previous convictions [for] a serious drug offense”
among his prior crimes. §924(e)(1) (2000 ed., Supp. V).
Section 924(e)(2)(A) (2000 ed.) defines “serious drug of-
fense” as an offense under state or federal drug laws, “for
which a maximum term of imprisonment of ten years or
more is prescribed by law.” This limitation leaves open
the question whether a given conviction qualifies as “seri-
ous” by reference to the penalty for the acts making up the
basic offense, regardless of who commits it, or whether
account must also be taken of further facts (such as an
offender’s criminal record that qualified him for an en-
2 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

hanced penalty at the time of that earlier conviction). If
the first alternative is the reading Congress intended, a
sentencing judge needs to look only to the penalty speci-
fied for the basic offense committed by a first-time
offender. But if the second is the intended one, a judge
may have to consider sentencing variations (for using a
gun, say, or for repeating the offense) set out in other
provisions.
It all turns on the meaning of the word “offense,” to
which the “maximum term” is tied. One can naturally
read “an offense” at a general level as synonymous with “a
crime,” which would tend to rule out reference to maxi-
mums adjusted for other facts; we do not usually speak of
a crime of “burglary while having a criminal record and
while out on bail.” Those details would come up only if we
were speaking about a specific instance, described as a
burglary “committed by someone with a record while out
on bail,” in which case the other facts may “enhance” his
sentence beyond what would have been the maximum
term for burglary. The trouble is that “offense” could
easily refer to a specific occurrence, too; looking at it that
way would make it less jarring to suggest that the circum-
stances around an event that authorize higher penalty
ranges (such as the use of a gun) or the defendant’s history
(like a prior conviction) ought to count in identifying the
maximum penalty for the offense committed on the given
day, at the given place, by the particular offender, in a
given way. Either reading seems to offer a plausible take
on the “offense” for which the ACCA court will have to
identify or calculate “maximum” penalties, under state
law.
We get no help from imagining the circumstances in
which a sentencing court would ask which reading to
adopt. The choice of answer would be easy if the question
arose in the mind of a lawyer whose client is thinking
about a guilty plea and asks what maximum term he
 Cite as: 553 U. S. ____ (2008) 3

SOUTER, J., dissenting

faces. See ante, at 4–5. His lawyer knows that he means
the maximum term for him in his case. When a repeat
offender wants to know, counsel understands that the
penalty prescribed for the basic crime without the recidi-
vist add-on is not the baseline for comparison that may
make or break the potential plea agreement. And if the
repeat offender faces a further statutory enhancement for
carrying a gun during the offense, or for being out on bail,
his lawyer would not tell him the maximum term for
repeat offenders without guns or bail restrictions. By the
same token, if the offender faced (as Rodriquez did) a
lower sentence ceiling than what the statute says, by
grace of mandatory sentencing guidelines, his lawyer
would know enough to tell him that his maximum was
capped in this way.
When the issue comes up not in a particular client’s
questions about his own prospects, however, but in a trial
judge’s mind wondering about the meaning of the general
statute, context gives no ready answer. Nor does it break
the tie to say, as the Court does, that taking “maximum”
to refer to the basic offense would mean that a recidivist
with add-ons could be sentenced above the ACCA “maxi-
mum,” see ante, at 4 (“even if respondent had been sen-
tenced to, say, six years’ imprisonment, ‘the maximum
term of imprisonment’ prescribed by law still would have
been five years”). That description, after all, might be just
a verbal quirk showing the statutory design in proper
working order: if Congress meant an offense to be viewed
generically and apart from offender characteristics, a gap
between the maximum for ACCA purposes, and a heavier,
actual sentence accounting for a defendant’s history is to
be expected.1
——————
1 Indeed, if today’s decision is read to mean that enhancements only

for recidivism need to be counted, then it too permits a defendant’s
actual sentence for a predicate conviction to be higher than what a
4 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

The text does not point to any likelier interpretive
choices, and as between these alternatives, it is simply
ambiguous.2 Because I do not believe its ambiguity is
fairly resolved in the Government’s favor, I would affirm.
II

A

None of the Court’s three principal points or ripostes
solves the puzzle. To begin with, there is something arbi-
trary about trying to resolve the ambiguity by rejecting
the maximum-for-basic-offense option while declining to
consider an entire class of offender-based sentencing
adjustments. If offender characteristics are going to count
in identifying the relevant maximum penalty, it would
——————
federal court identifies as an offense’s “maximum term” for ACCA
purposes: actual sentences can outstrip the maximum term for recidi-
vists if nonrecidivism factors such as weapons enhancements can also
raise a given defendant’s statutory ceiling. The Government seems to
accept this possibility, noting that “if a statute is as a formal matter
structured in such a way as to create broad tiers of punishment for
categories of offenders” based on factors other than recidivism, “then
certainly that would seem to be an alternative maximum term of
imprisonment.” Tr. of Oral Arg. 21. The Court, however, does not
address this prospect, despite having seen the same kind of result as a
dealbreaker for Rodriquez’s view.
2 Even adopting the “alternative” of accounting for an offender’s cir-

cumstances and record does not resolve the ambiguity, for this rubric
actually comprises multiple possibilities under its generic umbrella.
Most simply, it might be thought to refer to the actual offender’s
sentencing range as applied by the state court. At the other extreme, it
might mean the maximum for a purely hypothetical “worst” offender
who incurs all possible add-ons. Or perhaps it means a fictional version
of the actual offender, say, one qualifying for some statutory add-ons
but not for any guidelines rules (as the Court would have it); or maybe
one who qualifies for both the statutory and the guidelines departures
for which the actual offender was eligible, even though not all of those
departures were applied by the state court. This menagerie of options
would be multiplied, if a court directly confronted the choice whether to
count enhancements for offender-based factors other than recidivism,
and if so, which.
 Cite as: 553 U. S. ____ (2008) 5

SOUTER, J., dissenting

seem to follow that in jurisdictions with mandatory sen-
tencing guidelines, the maximum “prescribed by law”
would be what the guidelines determine. The original
Federal Guidelines, and the mandatory state guidelines I
am aware of, were established under statutory authority
that invests a guideline with the same legal status as a
customary penalty provision. Cf. United States v. R. L. C.,
503 U. S. 291, 297 (1992) (“The answer to any suggestion
that the statutory character of a specific penalty provi-
sion gives it primacy over administrative sentencing
guidelines is that the mandate to apply the Guidelines is
itself statutory”).
The Court tries to deflect the implication of its position
by denying that state sentencing guidelines really do set
maximum penalties, since typically they allow a judge to
depart from them, up or down, when specified conditions
are met. See ante, at 12. But while this is true, the objec-
tion stands. However a particular mandatory guideline
scheme works, it sets a maximum somewhere; if it in-
cludes conditions affecting what would otherwise be a
guideline maximum, the top of the range as affected
should be the relevant maximum on the Court’s reading of
the statute. Indeed, the factual conditions involved are
usually offender characteristics, and if the ACCA is going
to count them under offense-defining statutes or free-
standing recidivism laws, those same facts ought to count
under a guideline rule (whether setting, or authorizing a
departure from, a particular limit). There is no practical
difference whether maximums are adjusted by a statute, a
statutorily mandated guideline, or a guideline-specified
departure; wherever a “prescri[ption] by law” resides, it
ought to be honored by the ACCA court.
If we were to follow the Court’s lights, then, I think we
would have to accept the complication that guidelines
schemes present, and face the difficulty of calculating
6 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

enhanced maximums in guidelines jurisdictions.3 What
we cannot do is to resolve statutory ambiguity by looking
to the sentencing range for an imaginary offender who
meets statutory conditions for altering the basic sentence,
but is artificially stripped of any characteristic that trig-
gers a guideline rule also “prescribed by law.”
B
The more fundamental objection, though, goes to the
Court’s basic conclusion that it makes the better sense to
read the ACCA as resting the federal treatment of recidi-
vists on the maximum sentence authorized by state recidi-
vist schemes, in cases where state law must be considered.
The Court says it would have been natural for Congress to
think in terms of state judgments about repeat criminals
when thinking about what to do at the national level, and
the Court is quite possibly right about this; the fact that
the federal penalty may turn on a state felony classifica-
tion at all shows that Congress was thinking about state
law. But the chances are at least equally good that the
Court is wrong; it is odd to think that Congress would
have piggybacked the federal system on state repeat-
offender schemes, given the extraordinary and irreconcil-
able variations among state policies on the subject.
For one thing, the States’ recidivism schemes vary in
their methods for augmenting sentences. Iowa’s law, for
example, subjects repeat drug offenders to triple penalties,
Iowa Code §124.411(1) (2005); but in Wisconsin a repeat
drug distributor will see his maximum term increased by
a fixed number of years, whatever the starting point,
see, e.g., Wis. Stat. §961.48(1)(b) (2003–2004) (4-year in-
crease for Class H felony such as selling 1 kilogram of
marijuana).
——————
3 In this case, doing so would likely result in affirmance, because as

the Government admits, Rodriquez’s guidelines ceiling was just shy of
five years. Brief for United States 28.
 Cite as: 553 U. S. ____ (2008) 7

SOUTER, J., dissenting

More striking than differing structures, though, are the
vast disparities in severity from State to State: under
Massachusetts drug laws, a third conviction for selling a
small amount of marijuana carries a maximum of 2.5
years. Mass. Gen. Laws Ann., ch. 94C, §32C(b) (West
2006). In Delaware, a third conviction means a manda-
tory sentence of life in prison without parole. See Del.
Code Ann., Tit. 11, §4214(b) (2007) (third-felony penalty of
life without parole for violations of non-narcotic controlled
substances law, Tit. 16, §4752 (2004)). That Congress
might have chosen to defer to state-law judgments about
“seriousness” that vary so widely for the same conduct is
at least open to doubt. And that doubt only gets worse
when we notice that even where two States have similar
maximum penalties for a base-level offense, their recidi-
vist enhancements may lead the same conduct to trigger
the ACCA sanction in one State but not the other: on the
Court’s view, an offender’s second conviction for selling,
say, just over two pounds of marijuana will qualify as an
ACCA predicate crime if the conviction occurred in Ari-
zona (maximum of 13 years), Iowa (15 years), Utah (15
years), and the District of Columbia (10 years), for exam-
ple;4 but it will fall short of the mark in California (8
years), Michigan (8 years), and New York (8 years).5 Yet
in each of these States, the base-level offense has a maxi-
——————
4 See Ariz. Rev. Stat. Ann. §13–604(B) (West Supp. 2007) (maximum

set at 13 years); Iowa Code §§124.401(1)(d), 902.9(5), 124.411 (2005)
(basic-offense maximum is tripled to 15 years); Utah Code Ann. §§58–
37–8(1)(b)(ii) (Lexis 2007 Supp. Pamphlet), 76–3–203(2) (Lexis 2003)
(15 years); D. C. Code §§48–904.01(a)(2)(B) (2007 Supp. Pamphlet), 48–
904.08(a) (2001) (basic offense maximum is doubled to 10 years).
5 See Cal. Health & Safety Code Ann. §11360 (West 2007); Cal. Penal

Code Ann. §1170.12(c)(1) (West 2004) (basic-offense maximum is
doubled to 8 years); Mich. Comp. Laws Ann. §§333.7401(2)(d)(iii) (West
Supp. 2008), 333.7413(2) (basic-offense maximum is doubled to 8
years); N. Y. Penal Law Ann. §§221.55 (West 2001), 70.70(3)(b)(ii)
(West Supp. 2008) (maximum set at 8 years).
8 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

mum term falling within a much narrower range (between
3.5 and 5.5 years).6 With this backdrop of state law, the
Government can hardly be heard to say that there would
be something “incongruous” about a federal law targeting
offenses flagged by the penalties assigned only to bare
conduct, without regard to recidivism or other offender
facts. Brief for United States 17.
Nor does it show what the ACCA means by “maximum”
or “offense” when the Court points to language from our
prior cases saying that enhanced recidivist penalties are
not to be viewed as retroactive punishment for past
crimes, for purposes of double-jeopardy and right-to-
counsel enquiries. See ante, at 7 (citing Nichols v. United
States, 511 U. S. 738, 747 (1994), and Gryger v. Burke, 334
U. S. 728, 732 (1948)). The quotations show that a sepa-
rate offense is identified by an enhanced penalty, the
Court says, because from them we can draw the conclusion
that “[w]hen a defendant is given a higher sentence under
a recidivism statute,” nonetheless “100% of the punish-
ment is for the offense of conviction,” leaving nothing to be
attributed to “prior convictions or the defendant’s ‘status
as a recidivist,’ ” ante, at 7.
Still, the fact is that state-law maximums for repeat
offenders sometimes bear hardly any relation to the grav-
ity of the triggering offense, as “three-strikes” laws (not to
mention the Delaware example, above) often show. See,
e.g., Ill. Comp. Stat., ch. 720, §5/33B–1 (2004) (mandatory
life sentence for third “Class X” felony, such as dealing
heroin, without regard to the specific penalty gradation for
——————
6 See Ariz. Rev. Stat. Ann. §§13–3405(B)(5), 13–701(C) (West 2001)

(maximum set at 3.5 years); Cal. Health & Safety Code Ann. §11360
(4 years); D. C. Code §48–904.01(a)(2)(B) (5 years); Iowa Code
§§124.401(1)(d), 902.9(5) (5 years); Mich. Comp. Laws Ann.
§333.7401(2)(d)(iii) (4 years); N. Y. Penal Law Ann. §§221.55,
70.70(2)(a)(ii) (5.5 years); Utah Code Ann. §§58–37–8(1)(b)(ii), 76–3–
203(3) (5 years).
 Cite as: 553 U. S. ____ (2008) 9

SOUTER, J., dissenting

the latest Class X felony or to any similarity with prior
offenses); W. Va. Code Ann. §61–11–18(c) (2005) (if of-
fender was “twice before convicted in the United States of
a crime punishable by confinement in a penitentiary,”
third such conviction incurs a mandatory life sentence).
Cf. Ewing v. California, 538 U. S. 11, 30, n. 2 (2003) (plu-
rality opinion) (the “California Legislature therefore made
a deliberate policy decision . . . that the gravity of the new
felony should not be a determinative factor in triggering
the application of the Three Strikes Law” (internal quota-
tion marks omitted)). And there is no denying that the
fact of prior convictions (or a defendant’s recidivist status)
is necessary for the “ ‘stiffened penalty’ ” to be imposed for
“ ‘the latest crime,’ ” ante, at 7, the necessary fact being
specific to the offender, and falling outside the definition of
the offense. This is, after all, what it means to apply an
“enhancement.”
The upshot is that it may have been natural for Con-
gress to think of state recidivism schemes, but it may well
not have been. If there is anything strange about ignoring
enhanced penalties, there is something at least as strange
about a federal recidivist statute that piles enhancement
on enhancement, magnifying the severity of state laws
severe to begin with.
C
Whatever may be the plausibility of the offender-based
reading of the statute as the Court describes it, the Court’s
description avoids a source of serious doubt by glossing
over the practical problems its take on the statute por-
tends. The Court is unmoved by the argument that Con-
gress probably did not expect federal courts applying the
ACCA to master the countless complications of state sen-
tencing schemes; because all jurisdictions provide for
enhanced sentencing some way or another, the Court
thinks there is nothing threatening in the subject, which it
10 UNITED STATES v. RODRIQUEZ

SOUTER, J., dissenting

tries to simplify by offering a few practical pointers. It
notes that there will be cases with a qualifying enhance-
ment “evident from the length of the sentence imposed” by
the state court; sometimes, it says, a court’s “judgment of
conviction will . . . list the maximum possible sentence”; or
the state prosecutor will have “submit[ted] a formal charg-
ing document in order to obtain a recidivist enhancement.”
Ante, at 10. And in cases involving pleas, the Court notes,
“the plea colloquy will very often include a statement by
the trial judge regarding the maximum penalty.” Ibid.
Even when there are no pointers to help, says the Court,
and “the records that may properly be consulted” yield no
clear answer, the worst that can happen will be the Gov-
ernment’s inability to show that a prior conviction quali-
fies. Ante, at 11.
But it is not that easy, and the Court’s pointers are not
much comfort. To start with, even where a “maximum”
sentence is mentioned in state records, how will the ACCA
court be supposed to know that the “maximum” written
down there is what the Court today holds that “maximum”
means? A State’s number below 10 years may refer to the
base-level offense, or it may be the reduced maximum
required by mandatory guidelines; and a number over 10
years may be the product of other enhancements (as for
weapons use or being out on bail at the time of commis-
sion). Having to enquire into just what imposed sentences
or what trial documents really mean would seem to leave
plenty of sorting out for the federal courts to do (or at
least, for federal prosecutors, if they end up with the job).
Another example: State laws are not written to coordi-
nate with the ACCA, and if a State’s specific repeat drug-
offender provisions, say, are supposed to be read together
with its general habitual-offender statutes, the resulting
“maximum” may not be the Court’s “maximum.” Indeed, a
federal court may have to figure out just how those state
statutes may be read together to avoid conflict between
 Cite as: 553 U. S. ____ (2008) 11

SOUTER, J., dissenting

them, when the way to avoid conflict is not clear cut even
for the state courts, see, e.g., Goldberg v. State, 282 Ga.
542, 651 S. E. 2d 667 (2007) (general recidivist statute
trumps more specific one; overruling same court’s decision
in Mikell v. State, 270 Ga. 467, 510 S. E. 2d 523 (1999));
State v. Keith, 102 N. M. 462, 697 P. 2d 145 (App. 1985)
(specific trumps general). Cf. Clines v. State, 912 So. 2d
550 (Fla. 2005) (relying on rule of lenity to resolve whether
multiple recidivist categories in same habitual-offender
law could apply to a single sentence).
And there is more: as Rodriquez reminds us, just decid-
ing what counts as a “prior” offense under state law is not
always an easy thing. See People v. Wiley, 9 Cal. 4th 580,
583, 889 P. 2d 541, 542 (1995) (noting difficulty of apply-
ing requirement that “prior” charges have been “brought
and tried separately,” where defendant had been convicted
in trials occurring one day apart and sentenced at the
same court session; in the end, drawing the needed infer-
ence from docket numbers revealed on documents re-
quested from the municipal trial court); id., at 595, 889
P. 2d, at 550 (Werdegar, J., dissenting) (protesting the
court’s solicitation and use of extra-record documents).
Nor would that sort of enquiry get any easier, or be more
likely to benefit from well-settled state law, when a given
State’s law takes account of prior offenses in other States,
see Timothy v. State, 90 P. 3d 177 (Alaska App. 2004)
(holding Oklahoma burglary not to be analogous to one in
Alaska, for purposes of Alaska’s recidivism enhancements,
thus overruling its own 2-year-old decision, Butts v. State,
53 P. 3d 609 (2002)); or, to take a specific example, when
what qualifies a prior offense under one State’s recidivism
scheme is the length of the sentence authorized by another
State’s law (raising the question whether that first State
would see recidivist enhancements the same way the
Court does today). See, e.g., N. J. Stat. Ann. §2C:44–4(c)
(West 2005) (“A conviction in another jurisdiction shall
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SOUTER, J., dissenting

constitute a prior conviction of a crime if a sentence of
imprisonment in excess of 6 months was authorized under
the law of the other jurisdiction”); N. M. Stat. Ann. §31–
18–17(D)(2)(b) (2007 Supp.) (defining “prior felony convic-
tion” as, inter alia, a felony “punishable [by] a maximum
term of imprisonment of more than one year”).
A still thornier problem is how federal courts are sup-
posed to treat a State’s procedural safeguards for using
prior convictions at sentencing. Saying that congressional
deference to the States’ judgments about the severity of
crimes also extends to their judgments about recidivism
raises, but does not answer, the question whether such
deference goes only as far as the state courts themselves
could go in raising penalties. (The Court’s disregard of
mandatory sentencing guidelines would seem to suggest
that the answer is no.) In those States that require notice
before the prosecutor can seek a recidivism enhancement,
for example, how will a federal court decide whether the
ACCA counts a prior conviction that would have qualified
for recidivism enhancement if the state prosecutor had not
failed to give timely notice? See, e.g., Commonwealth v.
Fernandes, 430 Mass. 517, 522, 722 N. E. 2d 406, 409
(1999) (noting longstanding rule that the indictment must
give notice of prior convictions “that may subject the de-
fendant to enhanced punishment”).
I could go on, but this is enough to show that the Court’s
interpretation promises that ACCA courts will face highly
complicated enquiries into every State’s or Territory’s
collection of ancillary sentencing laws. That is an uncon-
vincing answer to the ambiguity.
III
At the end of the day, a plainly superior reading may
well be elusive; one favoring the Government certainly is.
It does not defy common English or common sense, after
all, to look at a statute with one penalty range for the
 Cite as: 553 U. S. ____ (2008) 13

SOUTER, J., dissenting

basic crime and a higher one for a repeat offender and say
that the former sets the maximum penalty for the “of-
fense”; but neither is it foolish to see the “offense” as de-
fined by its penalty, however that is computed. What I
have said so far suggests that I think the basic-crime view
of “offense” is the better one, but I will concede that the
competing positions are pretty close to evenly matched.
And on that assumption, there is a ready tie-breaker.
The interpretation adopted by both the District Court
and the Court of Appeals is the one counseled by the rule
of lenity, which applies where (as here) we have “ ‘ seiz[ed]
every thing from which aid can be derived,’ ” but are “left
with an ambiguous statute,” United States v. Bass, 404
U. S. 336, 347 (1971) (quoting United States v. Fisher, 2
Cranch 358, 386 (1805) (opinion of the Court by Marshall,
C. J.)). The rule is grounded in “ ‘the instinctive distaste
against men languishing in prison unless the lawmaker
has clearly said they should,’ ” Bass, supra, at 348 (quoting
H. Friendly, Benchmarks 209 (1967)), and we have used it
to resolve questions both about metes and bounds of crimi-
nal conduct and about the severity of sentencing. See
Bifulco v. United States, 447 U. S. 381, 387 (1980) (collect-
ing cases). “This policy of lenity means that the Court will
not interpret a federal criminal statute so as to increase
the penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to
what Congress intended.” Ladner v. United States, 358
U. S. 169, 178 (1958).
This is why lenity should control here. Even recognizing
the best that can be said for the Government’s side, its
position rests on debatable guesswork to send a man to
prison for 180 months, as against 92 months on the basic-
crime view. And the District Courts will be imposing
higher sentences more than doubling the length of the
alternative in a good many other cases, as well.
The “fair warning” that motivates the lenity rule,
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SOUTER, J., dissenting

McBoyle v. United States, 283 U. S. 25, 27 (1931) (opinion
of the Court by Holmes, J.), may sometimes be a benign
fiction, see R. L. C., 503 U. S., at 309 (SCALIA, J., concur-
ring), but there is only one reading of this statute with any
realistic chance of giving fair notice of how the ACCA will
apply, and that is the reading the District Court and the
Court of Appeals each chose. Their choice should be ours,
too.