Dean v. United States

(Slip Opinion)              OCTOBER TERM, 2008                                       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., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

                       DEAN v. UNITED STATES

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

      No. 08–5274. Argued March 4, 2009—Decided April 29, 2009
An individual convicted for using or carrying a firearm during and in
 relation to any violent or drug trafficking crime, or possessing a fire
 arm in furtherance of such a crime, receives a 5-year mandatory
 minimum sentence, in addition to the punishment for the underlying
 crime. 

(c)(1)(A)(i). The mandatory minimum in
 creases to 7 years “if the firearm is brandished” and to 10 years “if
 the firearm is discharged.” §§924(c)(1)(A)(ii), (iii).
    Petitioner Dean was convicted of conspiring to commit a bank rob
 bery and discharging a firearm during an armed robbery. Because
 the firearm was “discharged” during the robbery, Dean was sen
 tenced to a 10-year mandatory minimum prison term on the firearm
 count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge
 was accidental, and that §924(c)(1)(A)(iii) requires proof that the de
 fendant intended to discharge the firearm. The Eleventh Circuit af
 firmed, holding that no proof of intent is required.
Held: Section 924(c)(1)(A)(iii) requires no separate proof of intent. The
 10-year mandatory minimum applies if a gun is discharged in the
 course of a violent or drug trafficking crime, whether on purpose or
 by accident. Pp. 2–9.
    (a) Subsection (iii) provides a minimum 10-year sentence “if the
 firearm is discharged.” It does not require that the discharge be done
 knowingly or intentionally, or otherwise contain words of limitation.
 This Court “ordinarily resist[s] reading words or elements into a
 statute that do not appear on its face.” Bates v. United States, 

. Congress’s use of the passive voice further indicates
 that subsection (iii) does not require proof of intent. Cf. Watson v.
 United States, 

, ___. The statute’s structure also sug
 gests no such limitation. Congress expressly included an intent re
2                       DEAN v. UNITED STATES

                                  Syllabus

    quirement for the 7-year mandatory minimum for brandishing a fire
    arm by separately defining “brandish” to require that the firearm be
    displayed “in order to intimidate” another person. §924(c)(4). Con
    gress did not, however, separately define “discharge” to include an in
    tent requirement. It is generally presumed that Congress acts inten
    tionally when including particular language in one section of a
    statute but not in another. Russello v. United States, 

. Contrary to Dean’s contention, the phrase “during and in relation
    to” in the opening paragraph of §924(c)(1)(A) does not modify “is dis
    charged,” which appears in a separate subsection and in a different
    voice than the principal paragraph. “[I]n relation to” is most natu
    rally read to modify only the nearby verbs “uses” and “carries.” This
    reading will not lead to the absurd results posited by Dean. Pp. 3–6.
       (b) Dean argues that subsection (iii) must be limited to intentional
    discharges in order to give effect to the statute’s progression of
    harsher penalties for increasingly culpable conduct. While it is un
    usual to impose criminal punishment for the consequences of purely
    accidental conduct, it is not unusual to punish individuals for the un
    intended consequences of their unlawful acts. The fact that the dis
    charge may be accidental does not mean that the defendant is blame
    less. The sentencing enhancement accounts for the risk of harm
    resulting from the manner in which the crime is carried out, for
    which the defendant is responsible. See Harris v. United States, 

. An individual bringing a loaded weapon to commit a
    crime runs the risk that the gun will discharge accidentally. A gun
    shot—whether accidental or intended—increases the risk that others
    will be injured, that people will panic, or that violence will be used in
    response. It also traumatizes bystanders, as it did here. Pp. 6–9.
       (c) Because the statutory text and structure demonstrate that the
    discharge provision does not contain an intent requirement, the rule
    of lenity is not implicated in this case.

, affirmed.

   ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. STEVENS,
J., and BREYER, J., filed dissenting opinions.
                        Cite as: 

 (2009)                              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. 08–5274
                                   _________________


    CHRISTOPHER MICHAEL DEAN, PETITIONER
              v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

          APPEALS FOR THE ELEVENTH CIRCUIT

                                 [April 29, 2009] 


  CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
  Accidents happen. Sometimes they happen to individu
als committing crimes with loaded guns. The question
here is whether extra punishment Congress imposed for
the discharge of a gun during certain crimes applies when
the gun goes off accidentally.
                              I
   Title 

(c)(1)(A) criminalizes using or
carrying a firearm during and in relation to any violent or
drug trafficking crime, or possessing a firearm in further
ance of such a crime. An individual convicted of that
offense receives a 5-year mandatory minimum sentence, in
addition to the punishment for the underlying crime.
§924(c)(1)(A)(i). The mandatory minimum increases to 7
years “if the firearm is brandished” and to 10 years “if the
firearm is discharged.” §§924(c)(1)(A)(ii), (iii).
   In this case, a masked man entered a bank, waved a
gun, and yelled at everyone to get down. He then walked
behind the teller counter and started removing money
from the teller stations. He grabbed bills with his left
2                   DEAN v. UNITED STATES

                       Opinion of the Court

hand, holding the gun in his right. At one point, he
reached over a teller to remove money from her drawer.
As he was collecting the money, the gun discharged, leav
ing a bullet hole in the partition between two stations.
The robber cursed and dashed out of the bank. Witnesses
later testified that he seemed surprised that the gun had
gone off. No one was hurt. App. 16–19, 24, 27, 47–48, 79.
   Police arrested Christopher Michael Dean and Ricardo
Curtis Lopez for the crime. Both defendants were charged
with conspiracy to commit a robbery affecting interstate
commerce, in violation of 

(a), and aiding
and abetting each other in using, carrying, possessing, and
discharging a firearm during an armed robbery, in viola
tion of §924(c)(1)(A)(iii) and §2. App. 11–12. At trial,
Dean admitted that he had committed the robbery, id., at
76–81, and a jury found him guilty on both the robbery
and firearm counts. The District Court sentenced Dean to
a mandatory minimum term of 10 years in prison on the
firearm count, because the firearm “discharged” during
the robbery. §924(c)(1)(A)(iii); App. 136.
   Dean appealed, contending that the discharge was
accidental, and that the sentencing enhancement in
§924(c)(1)(A)(iii) requires proof that the defendant in
tended to discharge the firearm. The Court of Appeals
affirmed, holding that separate proof of intent was not
required. 

 (CA11 2008). That deci
sion created a conflict among the Circuits over whether
the accidental discharge of a firearm during the specified
crimes gives rise to the 10-year mandatory minimum. See
United States v. Brown, 

 (CADC 2006) (hold
ing that it does not). We granted certiorari to resolve that
conflict. 

 (2008).
                               II
    Section 924(c)(1)(A) provides:
      “[A]ny person who, during and in relation to any
                 Cite as: 

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                     Opinion of the Court

    crime of violence or drug trafficking crime . . . uses or
    carries a firearm, or who, in furtherance of any such
    crime, possesses a firearm, shall, in addition to the
    punishment provided for such crime of violence or
    drug trafficking crime—
      “(i) be sentenced to a term of imprisonment of not
    less than 5 years;
      “(ii) if the firearm is brandished, be sentenced to a
    term of imprisonment of not less than 7 years; and
      “(iii) if the firearm is discharged, be sentenced to a
    term of imprisonment of not less than 10 years.”
   The principal paragraph defines a complete offense and
the subsections “explain how defendants are to ‘be sen
tenced.’ ” Harris v. United States, 

(2002). Subsection (i) “sets a catchall minimum” sentence
of not less than five years. 

 at 552–553. Subsections
(ii) and (iii) increase the minimum penalty if the firearm
“is brandished” or “is discharged.” See 

. The
parties disagree over whether §924(c)(1)(A)(iii) contains a
requirement that the defendant intend to discharge the
firearm. We hold that it does not.
                               A
  “We start, as always, with the language of the statute.”
Williams v. Taylor, 

 (2000). The text of
subsection (iii) provides that a defendant shall be sen
tenced to a minimum of 10 years “if the firearm is dis
charged.” It does not require that the discharge be done
knowingly or intentionally, or otherwise contain words of
limitation. As we explained in Bates v. United States, 

 (1997), in declining to infer an “ ‘intent to de
fraud’ ” requirement into a statute, “we ordinarily resist
reading words or elements into a statute that do not ap
pear on its face.” 

.
  Congress’s use of the passive voice further indicates that
subsection (iii) does not require proof of intent. The pas
4                 DEAN v. UNITED STATES

                     Opinion of the Court

sive voice focuses on an event that occurs without respect
to a specific actor, and therefore without respect to any
actor’s intent or culpability. Cf. Watson v. United States,

, ___ (2007) (slip op., at 7) (use of passive
voice in statutory phrase “to be used” in 

(d)(1) reflects “agnosticism . . . about who does the
using”). It is whether something happened—not how or
why it happened—that matters.
   The structure of the statute also suggests that subsec
tion (iii) is not limited to the intentional discharge of a
firearm. Subsection (ii) provides a 7-year mandatory
minimum sentence if the firearm “is brandished.” Con
gress expressly included an intent requirement for that
provision, by defining “brandish” to mean “to display all or
part of the firearm, or otherwise make the presence of the
firearm known to another person, in order to intimidate
that person.” §924(c)(4) (emphasis added). The defendant
must have intended to brandish the firearm, because the
brandishing must have been done for a specific purpose.
Congress did not, however, separately define “discharge”
to include an intent requirement. “[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” Russello v. United
States, 

 (1983) (internal quotation marks
omitted).
   Dean argues that the statute is not silent on the ques
tion presented. Congress, he contends, included an intent
element in the opening paragraph of §924(c)(1)(A), and
that element extends to the sentencing enhancements.
Section 924(c)(1)(A) criminalizes using or carrying a fire
arm “during and in relation to” any violent or drug traf
ficking crime. In Smith v. United States, 

(1993), we stated that the phrase “in relation to” means
“that the firearm must have some purpose or effect with
                 Cite as: 

 (2009)            5

                     Opinion of the Court

respect to the drug trafficking crime; its presence or in
volvement cannot be the result of accident or coincidence.”

. Dean argues that the adverbial phrase thus
necessarily embodies an intent requirement, and that the
phrase modifies all the verbs in the statute—not only use,
carry, and possess, but also brandish and discharge. Such
a reading requires that a perpetrator knowingly discharge
the firearm for the enhancement to apply. If the discharge
is accidental, Dean argues, it is not “in relation to” the
underlying crime.
   The most natural reading of the statute, however, is
that “in relation to” modifies only the nearby verbs “uses”
and “carries.” The next verb—“possesses”—is modified by
its own adverbial clause, “in furtherance of.” The last two
verbs—“is brandished” and “is discharged”—appear in
separate subsections and are in a different voice than the
verbs in the principal paragraph. There is no basis for
reading “in relation to” to extend all the way down to
modify “is discharged.” The better reading of the statute
is that the adverbial phrases in the opening paragraph—
“in relation to” and “in furtherance of”—modify their
respective nearby verbs, and that neither phrase extends
to the sentencing factors.
   But, Dean argues, such a reading will lead to absurd
results. The discharge provision on its face contains no
temporal or causal limitations. In the absence of an intent
requirement, the enhancement would apply “regardless of
when the actions occur, or by whom or for what reason
they are taken.” Brief for Petitioner 11–12. It would, for
example, apply if the gun used during the crime were
discharged “weeks (or years) before or after the crime.”
Reply Brief for Petitioner 11.
   We do not agree that implying an intent requirement is
necessary to address such concerns. As the Government
recognizes, sentencing factors such as the one here “often
involve . . . special features of the manner in which a basic
6                 DEAN v. UNITED STATES

                     Opinion of the Court

crime was carried out.” Brief for United States 29 (quot
ing Harris, 

; internal quotation marks
omitted). The basic crime here is using or carrying a
firearm during and in relation to a violent or drug traffick
ing crime, or possessing a firearm in furtherance of any
such crime. Fanciful hypotheticals testing whether the
discharge was a “special featur[e]” of how the “basic crime
was carried out,” Harris, 

 (internal quota
tion marks omitted), are best addressed in those terms,
not by contorting and stretching the statutory language to
imply an intent requirement.
                              B
   Dean further argues that even if the statute is viewed as
silent on the intent question, that silence compels a ruling
in his favor. There is, he notes, a presumption that crimi
nal prohibitions include a requirement that the Govern
ment prove the defendant intended the conduct made
criminal. In light of this presumption, we have “on a
number of occasions read a state-of-mind component into
an offense even when the statutory definition did not in
terms so provide.” United States v. United States Gypsum
Co., 

 (1978). “[S]ome indication of con
gressional intent, express or implied, is required to dis
pense with mens rea as an element of a crime.” Staples v.
United States, 

 (1994).
   Dean argues that the presumption is especially strong
in this case, given the structure and purpose of the stat
ute. In his view, the three subsections are intended to
provide harsher penalties for increasingly culpable con
duct: a 5-year minimum for using, carrying, or possessing
a firearm; a 7-year minimum for brandishing a firearm;
and a 10-year minimum for discharging a firearm. Incor
porating an intent requirement into the discharge provi
sion is necessary to give effect to that progression, because
an accidental discharge is less culpable than intentional
                 Cite as: 

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                     Opinion of the Court

brandishment. See Brown, 

.
   It is unusual to impose criminal punishment for the
consequences of purely accidental conduct. But it is not
unusual to punish individuals for the unintended conse
quences of their unlawful acts. See 2 W. LaFave, Sub
stantive Criminal Law §14.4, pp. 436–437 (2d ed. 2003).
The felony-murder rule is a familiar example: If a defen
dant commits an unintended homicide while committing
another felony, the defendant can be convicted of murder.
See 

. The Sentencing Guidelines reflect
the same principle. See United States Sentencing Com
mission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008)
(USSG) (increasing offense level for aggravated assault
according to the seriousness of the injury); §2D2.3 (in
creasing offense level for operating or directing the opera
tion of a common carrier under the influence of alcohol or
drugs if death or serious bodily injury results).
   Blackstone expressed the idea in the following terms:
    “[I]f any accidental mischief happens to follow from
    the performance of a lawful act, the party stands ex
    cused from all guilt: but if a man be doing any thing
    unlawful, and a consequence ensues which he did not
    foresee or intend, as the death of a man or the like, his
    want of foresight shall be no excuse; for, being guilty
    of one offence, in doing antecedently what is in itself
    unlawful, he is criminally guilty of whatever conse
    quence may follow the first misbehaviour.” 4 W.
    Blackstone, Commentaries on the Laws of England
    26–27 (1769).
Here the defendant is already guilty of unlawful conduct
twice over: a violent or drug trafficking offense and the
use, carrying, or possession of a firearm in the course of
that offense. That unlawful conduct was not an accident.
See Smith, 

.
  The fact that the actual discharge of a gun covered
8                 DEAN v. UNITED STATES

                     Opinion of the Court

under §924(c)(1)(A)(iii) may be accidental does not mean
that the defendant is blameless. The sentencing en
hancement in subsection (iii) accounts for the risk of harm
resulting from the manner in which the crime is carried
out, for which the defendant is responsible. See 

. An individual who brings a loaded weapon
to commit a crime runs the risk that the gun will dis
charge accidentally. A gunshot in such circumstances—
whether accidental or intended—increases the risk that
others will be injured, that people will panic, or that vio
lence (with its own danger to those nearby) will be used in
response. Those criminals wishing to avoid the penalty for
an inadvertent discharge can lock or unload the firearm,
handle it with care during the underlying violent or drug
trafficking crime, leave the gun at home, or—best yet—
avoid committing the felony in the first place.
   JUSTICE STEVENS contends that the statute should be
read to require a showing of intent because harm resulting
from a discharge may be punishable under other provi
sions, such as the Sentencing Guidelines (but only if “bod
ily injury” results). Post, at 6 (dissenting opinion) (citing
USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(iii)
elected to impose a mandatory term, without regard to
more generally applicable sentencing provisions. Punish
ment available under such provisions therefore does not
suggest that the statute at issue here is limited to inten
tional discharges.
   And although the point is not relevant under the correct
reading of the statute, it is wrong to assert that the gun
shot here “caused no harm.” Post, at 1. By pure luck, no
one was killed or wounded. But the gunshot plainly added
to the trauma experienced by those held during the armed
robbery. See, e.g., App. 22 (the gunshot “shook us all”);
ibid. (“Melissa in the lobby popped up and said, ‘oh, my
God, has he shot Nora?’ ”).
                 Cite as: 

 (2009)            9

                     Opinion of the Court

                              C
   Dean finally argues that any doubts about the proper
interpretation of the statute should be resolved in his
favor under the rule of lenity. See Brief for Petitioner 6.
“The simple existence of some statutory ambiguity, how
ever, is not sufficient to warrant application of that rule,
for most statutes are ambiguous to some degree.” Mus
carello v. United States, 

 (1998); see also

 (“The mere possibility of articulating
a narrower construction, however, does not by itself make
the rule of lenity applicable”). “To invoke the rule, we
must conclude that there is a grievous ambiguity or uncer
tainty in the statute.” 

 at 138–139
(internal quotation marks omitted). In this case, the
statutory text and structure convince us that the dis
charge provision does not contain an intent requirement.
Dean’s contrary arguments are not enough to render the
statute grievously ambiguous.
                       …
  Section 924(c)(1)(A)(iii) requires no separate proof of
intent. The 10-year mandatory minimum applies if a gun
is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. The judg
ment of the Court of Appeals for the Eleventh Circuit is
affirmed.
                                           It is so ordered.
                 Cite as: 

 (2009)            1

                    STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 08–5274
                         _________________


    CHRISTOPHER MICHAEL DEAN, PETITIONER
              v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

          APPEALS FOR THE ELEVENTH CIRCUIT

                        [April 29, 2009] 


   JUSTICE STEVENS, dissenting.
   Accidents happen, but they seldom give rise to crimi
nal liability. Indeed, if they cause no harm they seldom
give rise to any liability. The Court today nevertheless
holds that petitioner is subject to a mandatory additional
sentence—a species of criminal liability—for an accident
that caused no harm. For two reasons, 

(c)(1)(A)(iii) should not be so construed. First, the
structure of §924(c)(1)(A) suggests that Congress intended
to provide escalating sentences for increasingly culpable
conduct and that the discharge provision therefore applies
only to intentional discharges. Second, even if the statute
did not affirmatively support that inference, the common
law presumption that provisions imposing criminal penal
ties require proof of mens rea would lead to the same
conclusion. Cf. United States v. X-Citement Video, Inc.,

 (1994). Accordingly, I would hold that the
Court of Appeals erred in concluding that petitioner could
be sentenced under §924(c)(1)(A)(iii) absent evidence that
he intended to discharge his gun.
                              I
  It is clear from the structure and history of §924(c)(1)(A)
that Congress intended §924(c)(1)(A)(iii) to apply only to
intentional discharges. The statute’s structure supports
2                     DEAN v. UNITED STATES

                         STEVENS, J., dissenting

the inference that Congress intended to impose increas
ingly harsh punishment for increasingly culpable conduct.
The lesser enhancements for carrying or brandishing
provided by clauses (i) and (ii) clearly require proof of
intent. Clause (i) imposes a 5-year mandatory minimum
sentence for using or carrying a firearm “during and in
relation to” a crime of violence or drug trafficking offense,
or possessing a firearm “in furtherance” of such an offense.
As we have said before, the provision’s relational terms
convey that it does not reach inadvertent conduct. See
Smith v. United States, 

 (1993) (“The
phrase ‘in relation to’ . . . at a minimum, clarifies that the
firearm must have some purpose or effect with respect to
the drug trafficking crime; its presence or involvement
cannot be the result of accident or coincidence”). Simi
larly, clause (ii) mandates an enhanced penalty for bran
dishing a firearm only upon proof that a defendant had
the specific intent to intimidate. See §924(c)(4). In that
context, the most natural reading of clause (iii), which
imposes the greatest mandatory penalty, is that it pro
vides additional punishment for the more culpable act of
intentional discharge.1
   The legislative history also indicates that Congress
intended to impose an enhanced penalty only for inten
tional discharge. In Bailey v. United States, 

 (1995), the Court held that “use” of a firearm for
purposes of §924(c)(1) required some type of “active em
ployment,” such as “brandishing, displaying, bartering,
striking with, and, most obviously, firing or attempting to
fire.”    Congress responded to Bailey by amending
——————
  1 Contrary to the Court’s suggestion, ante, at 4, Congress’ provision of

a specific intent element for brandishing and not for discharge only
supports the conclusion that Congress did not intend enhancements
under the discharge provision to require proof of specific intent; it
supports no inference that Congress also intended to eliminate any
general intent requirement and thereby make offenders strictly liable.
                 Cite as: 

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                    STEVENS, J., dissenting

§924(c)(1), making it an offense to “posses[s]” a firearm “in
furtherance of” one of the predicate offenses and adding
sentencing enhancements for brandishing and discharge.
See Pub. L. 105–386, §1(2)(1), 

; see also 144
Cong. Rec. 26608 (1998) (remarks of Sen. DeWine) (refer
ring to the amendments as the “Bailey Fix Act”). Given
the close relationship between the Bailey decision and
Congress’ enactment of the brandishing and discharge
provisions, those terms are best read as codifying some of
the more culpable among the “active employments” of a
firearm that the Court identified in Bailey.
                             II
   Even if there were no evidence that Congress intended
§924(c)(1)(A)(iii) to apply only to intentional discharges,
the presumption that criminal provisions include an intent
requirement would lead me to the same conclusion. Con
sistent with the common-law tradition, the requirement of
mens rea has long been the rule of our criminal jurispru
dence. See United States v. United States Gypsum Co.,

 (1978). The concept of crime as a “concur
rence of an evil-meaning mind with an evil-doing hand . . .
took deep and early root in American soil.” Morissette v.
United States, 

, 251–252 (1952). Legislating
against that backdrop, States often omitted intent ele
ments when codifying the criminal law, and “courts as
sumed that the omission did not signify disapproval of the
principle but merely recognized that intent was so inher
ent in the idea of the offense that it required no statutory
affirmation.” 

. Similarly, absent a clear state
ment by Congress that it intended to create a strict
liability offense, a mens rea requirement has generally
been presumed in federal statutes. See 

; Staples
v. United States, 

, 605–606 (1994). With only
a few narrowly delineated exceptions for such crimes as
statutory rape and public welfare offenses · Case Law">public welfare offenses, the presump
4                  DEAN v. UNITED STATES

                     STEVENS, J., dissenting

tion remains the rule today. See Morissette, 342 U. S., at
251–254, and n. 8; see also Staples, 511 U. S., at 606–607
(discussing United States v. Balint, 

 (1922)).
   Although mandatory minimum sentencing provisions
are of too recent genesis to have any common-law pedi
gree, see Harris v. United States, 

 (2002) (THOMAS, J., dissenting), there is no sensible
reason for treating them differently from offense elements
for purposes of the presumption of mens rea. Sentencing
provisions of this type have substantially the same effect
on a defendant’s liberty as aggravated offense provisions.
Although a sentencing judge has discretion to issue sen
tences under §924(c)(1)(A) within the substantial range
bounded on one end by the 5-, 7-, or 10-year mandatory
minimum sentence and on the other by the statutory
maximum sentence, judges in practice rarely exercise that
discretion. As JUSTICE THOMAS noted in Harris, “the
sentence imposed when a defendant is found only to have
‘carried’ a firearm ‘in relation to’ a drug trafficking offense
appears to be, almost uniformly, if not invariably, five
years,” and “those found to have brandished a firearm
typically, if not always, are sentenced only to 7 years in
prison while those found to have discharged a firearm are
sentenced only to 10 years.” Id., at 578 (dissenting opin
ion); see also United States Sentencing Commission,
Guidelines Manual §2K2.4, comment., n. 2 (Nov. 2008)
(USSG) (stating that the minimum sentence required by
§924(c)(1)(A) is the guideline sentence and any increase is
an upward departure). If anything, imposition of a man
datory minimum sentence under §924(c)(1)(A) will likely
have a greater effect on a defendant’s liberty than will
conviction for another offense because, unlike sentences
for most federal offenses, sentences imposed pursuant to
that section must be served consecutively to any other
sentence. See §924(c)(1)(D)(ii).
   As the foregoing shows, mandatory minimum sentenc
                     Cite as: 

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                         STEVENS, J., dissenting

ing provisions are in effect no different from aggravated
offense provisions. The common-law tradition of requiring
proof of mens rea to establish criminal culpability should
thus apply equally to such sentencing factors. Absent a
clear indication that Congress intended to create a strict-liability enhancement, courts should presume that a provision that mandates enhanced criminal penalties requires proof of intent. This conclusion is bolstered by the
fact that we have long applied the rule of lenity—which is
similar to the mens rea rule in both origin and purpose—to
provisions that increase criminal penalties as well as
those that criminalize conduct. See United States v.
R. L. C., 

 (1992) (plurality opinion);
Bifulco v. United States, 

 (1980); Ladner
v. United States, 

 (1958).2 Accordingly, I
would apply the presumption in this case and avoid the
strange result of imposing a substantially harsher penalty
for an act caused not by an “evil-meaning mind” but by a
clumsy hand.
   The majority urges the result in this case is not unusual
because legislatures commonly “punish individuals for the
unintended consequences of their unlawful acts,” ante, at
7, but the collection of examples that follows this assertion
——————
  2 To be sure, there are also inquiries for which the Court has said that
sentencing provisions are different. In Harris v. United States, 

 (2002) (plurality opinion), and McMillan v. Pennsylvania, 

, 87–88 (1986), the Court distinguished for purposes
of constitutional analysis mandatory minimum sentencing schemes
from offense elements and provisions that increase the statutory
maximum sentence. I continue to agree with JUSTICE THOMAS’ compelling dissent in Harris, in which he rejected the distinction on the
ground that mandatory minimum sentencing provisions have at least
as significant an effect on a defendant’s liberty as additional convictions or statutory maximum provisions. 536 U. S., at 577–578. The
logic of treating these provisions similarly is buttressed by our subsequent decision in United States v. Booker, 

, 233–234
(2005).
6                 DEAN v. UNITED STATES

                    STEVENS, J., dissenting

is telling. The Court cites the felony-murder rule, 

, and Sentencing Guidelines provisions that
permit increased punishment based on the seriousness of
the harm caused by the predicate act, see USSG
§2A2.2(b)(3) (increasing the offense level for aggravated
assault according to the seriousness of the injury); §2D2.3
(increasing the offense level for operating a common car
rier under the influence of alcohol or drugs if death or
serious injury results). These examples have in common
the provision of enhanced penalties for the infliction of
some additional harm.         By contrast, §924(c)(1)(A)(iii)
punishes discharges whether or not any harm is realized.
Additionally, in each of the majority’s examples Congress
or the Sentencing Commission made explicit its intent to
punish the resulting harm regardless of the perpetrator’s
mens rea. Section 924(c)(1)(A)(iii) contains no analogous
statement. For these reasons, §924(c)(1)(A)(iii) is readily
distinguishable from the provisions the majority cites.
   Contrary to the majority’s suggestion, the existence of
provisions that penalize the unintended consequences of
felonious conduct underscores the reasonableness of read
ing §924(c)(1)(A)(iii) to require proof of intent. When harm
results from a firearm discharge during the commission of
a violent felony or drug trafficking offense, the defendant
will be punishable pursuant to USSG §2B3.1(b)(3) (in
creasing the offense level for robbery according to the
resulting degree of bodily injury), the felony-murder rule,
or a similar provision. That a defendant will be subject to
punishment for the harm resulting from a discharge
whether or not he is also subject to the enhanced penalty
imposed by §924(c)(1)(A)(iii) indicates that the latter
provision was intended to serve a different purpose—
namely, to punish the more culpable act of intentional
discharge.
                 Cite as: 

 (2009)            7

                    STEVENS, J., dissenting

                              III
   In sum, the structure and history of §924(c)(1)(A) indi
cate that Congress meant to impose the more substantial
penalty provided by clause (iii) only in cases of intentional
discharge. Were the statute unclear in that regard, I
would reach the same conclusion by applying the pre
sumption that Congress intended to include a mens rea
requirement. Mandatory sentencing provisions are not
meaningfully distinguishable from statutes defining
crimes to which we have previously applied the presump
tion; the rule of Morissette and Staples and not the felony
murder rule should therefore guide our analysis. Because
there is insufficient evidence to rebut the presumption in
this case, I respectfully dissent.
                  Cite as: 

 (2009)             1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 08–5274
                          _________________


    CHRISTOPHER MICHAEL DEAN, PETITIONER
              v. UNITED STATES
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

          APPEALS FOR THE ELEVENTH CIRCUIT

                         [April 29, 2009] 


   JUSTICE BREYER, dissenting.
   For many of the reasons that JUSTICE STEVENS sets
forth, I believe the statutory provision before us applies to
intentional, but not to accidental, discharges of firearms.
As JUSTICE STEVENS points out, this Court in Bailey v.
United States, 

 (1995), held that simple
possession of a firearm, without some type of “active em
ployment,” such as “brandishing, displaying, bartering,
striking with, and, most obviously, firing or attempting to
fire,” did not constitute “use” of a firearm. See ante, at 2
(dissenting opinion). It seems possible, if not likely, that
Congress, in this statute, amended then-existing law by
criminalizing the “simple possession” that Bailey found
insufficient and then imposed a set of ever more severe
mandatory sentences for the conduct that the Court listed
in Bailey when it considered ways in which an offender
might use a firearm. See ante, at 2–3. If so, the statutory
words “is discharged,” 

(c)(1)(A)(iii), refer to
what Bailey called “firing,” and they do not encompass an
accidental discharge.
   I concede that the Court lists strong arguments to the
contrary. But, in my view, the “rule of lenity” tips the
balance against the majority’s position. The “rule of len
ity” as ordinarily applied reflects the law’s insistence that
a criminal statute provide “fair warning . . . of what the
2                 DEAN v. UNITED STATES

                     BREYER, J., dissenting

law intends to do if a certain line is passed.” United States
v. Bass, 

 (1971) (internal quotation
marks omitted). But here, where a mandatory minimum
sentence is at issue, its application reflects an additional
consideration, namely, that its application will likely
produce an interpretation that hews more closely to Con
gress’ sentencing intent.
   That is because, in the case of a mandatory minimum,
an interpretation that errs on the side of exclusion (an
interpretive error on the side of leniency) still permits the
sentencing judge to impose a sentence similar to, perhaps
close to, the statutory sentence even if that sentence (be
cause of the court’s interpretation of the statute) is not
legislatively required. See, e.g., United States Sentencing
Commission, Guidelines Manual §2B3.1(b)(2) (Nov. 2008)
(Specific Offense Characteristics) (possibly calling for a 7
to-9 year increase in the sentencing range in a case like
this one). The sentencing judge is most likely to give a low
non-Guidelines sentence in an unusual case—where the
nature of the accident, for example, makes clear that the
offender was not responsible and perhaps that the dis
charge put no one at risk. See, e.g., Koon v. United States,

, 92–94 (1996). And, of course, the unusual
nature of such a case means it is the kind of case that
Congress did not have in mind when it enacted the stat
ute. Moreover, an error that excludes (erroneously) a set
of instances Congress meant to include (such as accidental
discharge) could lead the Sentencing Commission to focus
on those cases and exercise its investigative and judg
mental powers to decide how those cases should be han
dled. This investigation would, in turn, make available to
Congress a body of evidence and analysis that will help it
reconsider the statute if it wishes to do so.
   On the other hand, an interpretation that errs on the
side of inclusion requires imposing 10 years of additional
imprisonment on individuals whom Congress would not
                Cite as: 

 (2009)          3

                   BREYER, J., dissenting

have intended to punish so harshly. Such an interpreta
tion would prevent a sentencing court from giving a lower
sentence even in an unusual case, for example, where the
accident is unintended, unforeseeable, and imposes no
additional risk. And such an interpretation, by errone
ously taking discretion away from the sentencing judge,
would ensure results that depart dramatically from those
Congress would have intended. Cf. Harris v. United
States, 

 (2002) (BREYER, J., concurring
in part and concurring in judgment) (“statutory manda
tory minimums generally deny the judge the legal power
to depart downward, no matter how unusual the special
circumstances that call for leniency”). Moreover, because
such unusual cases are (by definition) rare, these errors
would provide little incentive to the Sentencing Commis
sion or Congress to reconsider the statute.
   These interpretive asymmetries give the rule of lenity
special force in the context of mandatory minimum provi
sions. Because I believe the discharge provision here is
sufficiently ambiguous to warrant the application of that
rule, I respectfully dissent.