US SUPREME COURT DECISIONS

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).

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 mandatory 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 recidivist 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 Arizona (maximum of 13 years), Iowa (15 years), Utah (15 years), and the District of Columbia (10 years), for example; [Footnote 4] but it will fall short of the mark in California (8 years), Michigan (8 years), and New York (8 years). [Footnote 5] Yet in each of these States, the base-level offense has a maximum term falling within a much narrower range (between 3.5 and 5.5 years). [Footnote 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 separate 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 punishment 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 gravity 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 the latest Class X felony or to any similarity with prior offenses); W. Va. Code Ann. §61–11–18(c) (2005) (if offender 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) (plurality 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 quotation 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 Congress 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 portends. The Court is unmoved by the argument that Congress probably did not expect federal courts applying the ACCA to master the countless complications of state sentencing schemes; because all jurisdictions provide for enhanced sentencing some way or another, the Court thinks there is nothing threatening in the subject, which it tries to simplify by offering a few practical pointers. It notes that there will be cases with a qualifying enhancement “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 charging 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 Government’s inability to show that a prior conviction qualifies. 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 commission). 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 coordinate 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 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 deciding 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 applying 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 inference from docket numbers revealed on documents requested 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 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 conviction” 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 supposed 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 defendant 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 unconvincing answer to the ambiguity.