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 Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WITTE v. UNITED STATES

certiorari to the united states court of appeals for the fifth circuit

No. 94–6187. Argued April 17, 1995—Decided June 14, 1995

After petitioner Witte pleaded guilty to a federal marijuana charge, a presentence report calculated the base offense level under the United States Sentencing Guidelines by aggregating the total quantity of drugs involved not only in Witte's offense of conviction but also in uncharged criminal conduct in which he had engaged with several co-conspirators. The resulting sentencing range was higher than it would have been if only the drugs involved in his conviction had been considered, but it still fell within the scope of the legislatively authorized penalty. The District Court accepted the report's aggregation in sentencing Witte, concluding that the other offenses were part of a continuing conspiracy that should be taken into account under the Guidelines as ``relevant conduct,'' United States Sentencing Commission, Guidelines Manual §1B1.3. When Witte was subsequently indicted for conspiring and attempting to import cocaine, he moved to dismiss the charges, arguing that he had already been punished for the offenses because that cocaine had been considered as ``relevant conduct'' at his marijuana sentencing. The court dismissed the indictment on grounds that punishment for the cocaine offenses would violate the Double Jeopardy Clause's prohibition against multiple punishments, but the Court of Appeals reversed. Relying on this Court's decision in Williams v. Oklahoma, 358 U. S. 576 (1959), it held that the use of relevant conduct to increase the punishment for a charged offense does not punish the offender for the relevant conduct.

Held: Because consideration of relevant conduct in determining a defendant's sentence within the legislatively authorized punishment range does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause, Witte's prosecution on cocaine charges does not violate the prohibition against multiple punishments. Pp. 6–16.

(a) This Court's precedents make clear that a defendant in Witte's situation is only punished, for double jeopardy purposes, for the offense of conviction. Traditionally, a sentencing judge may conduct a broad inquiry, largely unlimited either as to the kind of information he may consider or the source from which it may come. Against this background of sentencing history, the Court, in Williams, supra, specifically rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime. Williams governs this case, for it makes no difference in this context whether the enhancement occurred in the first or second proceeding. Here, as in Williams, the uncharged criminal conduct was used to enhance Witte's sentence within the range authorized by statute. Pp. 6–10.

(b) Other decisions of this Court reinforce the conclusion reached here. In repeatedly upholding recidivism statutes, the Court has rejected double jeopardy challenges because enhanced punishment imposed for a later offense is viewed as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one. See, e.g., Gryger v. Burke, 334 U. S. 728, 732. In addition, by authorizing the consideration of offender-specific information at sentencing without the procedural protections attendant at a criminal trial, the Court's cases necessarily imply that such consideration does not result in ``punishment'' for such conduct. See, e.g., McMillan v. Pennsylvania, 477 U. S. 79. Pp. 10–12.

(c) Contrary to Witte's suggestion, the Guidelines do not somehow change the constitutional analysis. A defendant has not been ``punished'' any more for double jeopardy purposes when relevant conduct is included in the calculation of his offense level under the Guidelines than when a pre-Guidelines court, in its discretion, took similar uncharged conduct into account. In each case, the defendant is still being punished, for double jeopardy purposes, only for the offense of conviction. Pp. 12–14.

(d) The Guidelines include significant safeguards to protect Witte against having the length of his second sentence multiplied by duplicative consideration of the same criminal conduct already considered as ``relevant conduct'' for the marijuana sentence. And he would be able to vindicate his interests through appropriate appeals should the Guidelines be misapplied in any future sentencing proceeding. Even if the Sentencing Commission had not formalized sentencing for multiple convictions, district courts retain enough flexibility under the Guidelines to take into account the fact that conduct underlying the offense at issue has previously been taken into account in sentencing for another offense. Pp. 14–17.

25 F. 3d 250, affirmed.

O'Connor, J., delivered the opinion of the Court, in Parts I, II, and IV of which Rehnquist, C. J., and Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and in Part III of which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Stevens, J., filed an opinion concurring in part and dissenting in part.