WASHINGTON v. RECUENCO

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212 OCTOBER TERM, 2005
Syllabus
WASHINGTON v. RECUENCO
certiorari to the supreme court of washington
No. 05–83. Argued April 17, 2006—Decided June 26, 2006
After respondent threatened his wife with a handgun, he was convicted
of second-degree assault based on the jury’s finding that he had as
saulted her “with a deadly weapon.” A “firearm” qualifies as a “deadly
weapon” under Washington law, but nothing in the verdict form specifi
cally required the jury to find that respondent had engaged in assault
with a “firearm,” as opposed to any other kind of “deadly weapon.”
Nevertheless, the state trial court applied a 3-year firearm enhancement
to respondent’s sentence, rather than the 1-year enhancement that spe
cifically applies to assault with a deadly weapon, based on the court’s
own factual findings that respondent was armed with a firearm. This
Court then decided Apprendi v. New Jersey, 530 U. S. 466, holding that
“[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt,” id., at 490,
and Blakely v. Washington, 542 U. S. 296, clarifying that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict,” id.,
at 303. Because the trial court could not have subjected respondent to
a firearm enhancement based only on the jury’s finding that respondent
was armed with a “deadly weapon,” the State conceded a Sixth Amend
ment Blakely violation before the Washington Supreme Court, but
urged the court to find the Blakely error harmless. In vacating re
spondent’s sentence and remanding for sentencing based solely on the
deadly weapon enhancement, however, the court declared Blakely error
to be “structural error,” which will always invalidate a conviction under
Sullivan v. Louisiana, 508 U. S. 275, 279.
Held:
1. Respondent’s argument that this Court lacks power to reverse be
cause the Washington Supreme Court’s judgment rested on adequate
and independent state-law grounds is rejected. It is far from clear that
respondent is correct that at the time of his conviction, state law pro
vided no procedure for a jury to determine whether a defendant was
armed with a firearm, so that it is impossible to conduct harmless-error
analysis on the Blakely error in his case. The correctness of respond
ent’s interpretation, however, is not determinative of the question the
State Supreme Court decided and on which this Court granted review,

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Syllabus
i. e., whether Blakely error can ever be deemed harmless. If respond
ent’s reading of Washington law is correct, that merely suggests that he
will be able to demonstrate that the Blakely violation in this particular
case was not harmless. See Chapman v. California, 386 U. S. 18, 24.
But it does not mean that Blakely error—which is of the same nature,
whether it involves a fact that state law permits to be submitted to the
jury or not—is structural, or that this Court is precluded from deciding
that question. Thus, the Court need not resolve this open question of
Washington law. Pp. 216–218.
2. Failure to submit a sentencing factor to the jury is not “structural”
error. If a criminal defendant had counsel and was tried by an impar
tial adjudicator, there is a strong presumption that most constitutional
errors are subject to harmless-error analysis. E. g., Neder v. United
States, 527 U. S. 1, 8. Only in rare cases has this Court ruled an error
“structural,” thus requiring automatic reversal. In Neder, the Court
held that failure to submit an element of an offense to the jury—there,
the materiality of false statements as an element of the federal crimes
of filing a false income tax return, mail fraud, wire fraud, and bank
fraud, see id., at 20–25—is not structural, but is subject to Chapman’s
harmless-error rule, 527 U. S., at 7–20. This case is indistinguishable
from Neder. Apprendi makes clear that “[a]ny possible distinction be
tween an ‘element’ of a felony . . . and a ‘sentencing factor’ was
unknown . . . during the years surrounding our Nation’s founding.” 530
U. S., at 478. Accordingly, the Court has treated sentencing factors,
like elements, as facts that have to be tried to the jury and proved
beyond a reasonable doubt. Id., at 483–484. The only difference be
tween this case and Neder is that there the prosecution failed to prove
the materiality element beyond a reasonable doubt, while here the
prosecution failed to prove the “armed with a firearm” sentencing factor
beyond a reasonable doubt. Assigning this distinction constitutional
significance cannot be reconciled with Apprendi’s recognition that ele
ments and sentencing factors must be treated the same. Respondent
attempts unpersuasively to distinguish Neder on the ground that the
jury there returned a guilty verdict on the offenses for which the de
fendant was sentenced, whereas here the jury returned a guilty verdict
only on the offense of second-degree assault, and an affirmative answer
to the sentencing question whether respondent was armed with a deadly
weapon. Because Neder’s jury did not find him guilty of each of the
elements of the offenses with which he was charged, its verdict is no
more fairly described as a complete finding of guilt than is the verdict
here. See 527 U. S., at 31. Pp. 218–222.
154 Wash. 2d 156, 110 P. 3d 188, reversed and remanded.

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214 WASHINGTON v. RECUENCO
Opinion of the Court
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Ken
nedy, J., filed a concurring opinion, post, p. 222. Stevens, J., filed a dis
senting opinion, post, p. 223. Ginsburg, J., filed a dissenting opinion, in
which Stevens, J., joined, post, p. 224.
James M. Whisman argued the cause for petitioner.
With him on the briefs were Norm Maleng and Brian M.
McDonald.
Patricia A. Millett argued the cause for the United States
as amicus curiae urging reversal. On the brief were
Solicitor General Clement, Assistant Attorney General
Fisher, Deputy Solicitor General Dreeben, and Kannon K.
Shanmugam.
Gregory C. Link, by appointment of the Court, 546 U. S.
1087, argued the cause for respondent. With him on the
brief were Thomas M. Kummerow and Jeffrey L. Fisher.*
Justice Thomas delivered the opinion of the Court.
Respondent Arturo Recuenco was convicted of assault in
the second degree based on the jury’s finding that he as
saulted his wife “with a deadly weapon.” App. 13. The
*Briefs of amici curiae urging reversal were filed for the State of Ala
bama et al. by John W. Suthers, Attorney General of Colorado, Allison H.
Eid, Solicitor General, and John D. Seidel, Assistant Attorney General, by
Christopher L. Morano, Chief State’s Attorney of Connecticut, and by the
Attorneys General for their respective States as follows: Troy King of
Alabama, David W. Ma´ rquez of Alaska, Terry Goddard of Arizona, Mike
Beebe of Arkansas, Bill Lockyer of California, Carl C. Danberg of Dela
ware, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Thomas
J. Miller of Iowa, Phill Kline of Kansas, G. Steven Rowe of Maine, Michael
A. Cox of Michigan, Mike McGrath of Montana, Jim Petro of Ohio, W. A.
Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E.
Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff
of Utah, and William Sorrell of Vermont; and for the Criminal Justice
Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Robert N. Hochman, Pamela Harris, and Sheryl Gordon McCloud filed
a brief for the National Association of Criminal Defense Lawyers et al. as
amici curiae urging affirmance.

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Opinion of the Court
trial court applied a 3-year firearm enhancement to respond
ent’s sentence based on its own factual findings, in violation
of Blakely v. Washington, 542 U. S. 296 (2004). On appeal,
the Supreme Court of Washington vacated the sentence, con
cluding that Blakely violations can never be harmless. We
granted certiorari to review this conclusion, 546 U. S. 960
(2005), and now reverse.
I
On September 18, 1999, respondent fought with his wife,
Amy Recuenco. After screaming at her and smashing their
stove, he threatened her with a gun. Based on this incident,
the State of Washington charged respondent with assault in
the second degree, i. e., “intentiona[l] assault . . . with a
deadly weapon, to-wit: a handgun.” App. 3. Defense coun
sel proposed, and the court accepted, a special verdict form
that directed the jury to make a specific finding whether re
spondent was “armed with a deadly weapon at the time of
the commission of the crime.” Id., at 13. A “firearm” qual
ifies as a “deadly weapon” under Washington law. Wash.
Rev. Code § 9.94A.602 (2004). But nothing in the verdict
form specifically required the jury to find that respondent
had engaged in assault with a “firearm,” as opposed to any
other kind of “deadly weapon.” The jury returned a verdict
of guilty on the charge of assault in the second degree, and
answered the special verdict question in the affirmative.
App. 10, 13.
At sentencing, the State sought the low end of the stand
ard range sentence for assault in the second degree (three
months). It also sought a mandatory 3-year enhance
ment because respondent was armed with a “firearm,”
§ 9.94A.533(3)(b), rather than requesting the 1-year enhance
ment that would attend the jury’s finding that respondent
was armed with a deadly weapon, § 9.94A.533(4)(b). The
trial court concluded that respondent satisfied the condition
for the firearm enhancement, and accordingly imposed a total
sentence of 39 months.

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Opinion of the Court
Before the Supreme Court of Washington heard respond
ent’s appeal, we decided Apprendi v. New Jersey, 530 U. S.
466 (2000), and Blakely, supra. In Apprendi, we held that
“[o]ther than the fact of a prior conviction, any fact that in
creases the penalty for a crime beyond the prescribed statu
tory maximum must be submitted to a jury, and proved be
yond a reasonable doubt.” 530 U. S., at 490. In Blakely,
we clarified that “the ‘statutory maximum’ for Apprendi pur
poses is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or ad
mitted by the defendant.” 542 U. S., at 303 (emphasis in
original). Because the trial court in this case could not have
subjected respondent to a firearm enhancement based only
on the jury’s finding that respondent was armed with a
“deadly weapon,” the State conceded before the Supreme
Court of Washington that a Sixth Amendment violation oc
curred under Blakely. 154 Wash. 2d 156, 162–163, 110 P. 3d
188, 191 (2005). See also Tr. of Oral Arg. 10–11.
The State urged the Supreme Court of Washington to find
the Blakely error harmless and, accordingly, to affirm the
sentence. In State v. Hughes, 154 Wash. 2d 118, 110 P. 3d
192 (2005), however, decided the same day as the present
case, the Supreme Court of Washington declared Blakely
error to be “ ‘structural’ erro[r]” which “ ‘will always invali
date the conviction.’ ” 154 Wash. 2d, at 142, 110 P. 3d, at 205
(quoting Sullivan v. Louisiana, 508 U. S. 275, 279 (1993)).
As a result, the court refused to apply harmless-error analy
sis to the Blakely error infecting respondent’s sentence. In
stead, it vacated his sentence and remanded for sentencing
based solely on the deadly weapon enhancement. 154 Wash.
2d, at 164, 110 P. 3d, at 192.
II
Before reaching the merits, we must address respondent’s
argument that we are without power to reverse the judg
ment of the Supreme Court of Washington because that

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Opinion of the Court
judgment rested on adequate and independent state-law
grounds. Respondent claims that at the time of his convic
tion, Washington state law provided no procedure for a jury
to determine whether a defendant was armed with a firearm.
Therefore, he contends, it is impossible to conduct harmless
error analysis on the Blakely error in his case. Respondent
bases his position on Hughes, in which the Supreme Court
of Washington refused to “create a procedure to empanel ju
ries on remand to find aggravating factors because the legis
lature did not provide such a procedure and, instead, explic
itly assigned such findings to the trial court.” 154 Wash. 2d,
at 151, 110 P. 3d, at 209. Respondent contends that, like
wise, the Washington Legislature provided no procedure by
which a jury could decide at trial whether a defendant was
armed with a firearm, as opposed to a deadly weapon.
It is far from clear that respondent’s interpretation of
Washington law is correct. See State v. Pharr, 131 Wash.
App. 119, 124–125, 126 P. 3d 66, 69 (2006) (affirming the trial
court’s imposition of a firearm enhancement when the jury’s
special verdict reflected a finding that the defendant was
armed with a firearm). In Hughes, the Supreme Court of
Washington carefully avoided reaching the conclusion re
spondent now advocates, instead expressly recognizing that
“[w]e are presented only with the question of the appropriate
remedy on remand—we do not decide here whether juries
may be given special verdict forms or interrogatories to de
termine aggravating factors at trial.” 154 Wash. 2d, at 149,
110 P. 3d, at 208. Accordingly, Hughes does not appear to
foreclose the possibility that an error could be found harm
less because the jury which convicted the defendant would
have concluded, if given the opportunity, that a defendant
was armed with a firearm.
The correctness of respondent’s interpretation of Washing
ton law, however, is not determinative of the question that
the Supreme Court of Washington decided and on which we
granted review, i. e., whether Blakely error can ever be

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218 WASHINGTON v. RECUENCO
Opinion of the Court
deemed harmless. If respondent is correct that Washington
law does not provide for a procedure by which his jury could
have made a finding pertaining to his possession of a firearm,
that merely suggests that respondent will be able to demon
strate that the Blakely violation in this particular case was
not harmless. See Chapman v. California, 386 U. S. 18, 24
(1967). But that does not mean that Blakely error—which
is of the same nature, whether it involves a fact that state
law permits to be submitted to the jury or not—is structural,
or that we are precluded from deciding that question. Thus,
we need not resolve this open question of Washington law.1
III
We have repeatedly recognized that the commission of a
constitutional error at trial alone does not entitle a defendant
to automatic reversal. Instead, “ ‘most constitutional errors
can be harmless.’ ” Neder v. United States, 527 U. S. 1, 8
(1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 306
(1991)). “ ‘[I]f the defendant had counsel and was tried by
an impartial adjudicator, there is a strong presumption that
any other [constitutional] errors that may have occurred are
subject to harmless-error analysis.’ ” 527 U. S., at 8 (quoting
Rose v. Clark, 478 U. S. 570, 579 (1986)). Only in rare cases
has this Court held that an error is structural, and thus re
quires automatic reversal.2 In such cases, the error “neces
1 Respondent’s argument that, as a matter of state law, the Blakely v.
Washington, 542 U. S. 296 (2004), error was not harmless remains open to
him on remand.
2 See Neder v. United States, 527 U. S. 1, 8 (1999) (citing Johnson v.
United States, 520 U. S. 461, 468 (1997), in turn citing Gideon v. Wain
wright, 372 U. S. 335 (1963) (complete denial of counsel); Tumey v. Ohio,
273 U. S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U. S. 254
(1986) (racial discrimination in selection of grand jury); McKaskle v. Wig
gins, 465 U. S. 168 (1984) (denial of self-representation at trial); Waller v.
Georgia, 467 U. S. 39 (1984) (denial of public trial); Sullivan v. Louisiana,
508 U. S. 275 (1993) (defective reasonable-doubt instruction)).

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Opinion of the Court
sarily render[s] a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence. ”
Neder, supra, at 9 (emphasis deleted).
We recently considered whether an error similar to that
which occurred here was structural in Neder, supra. Neder
was charged with mail fraud, in violation of 18 U. S. C. § 1341;
wire fraud, in violation of § 1343; bank fraud, in violation of
§ 1344; and filing a false income tax return, in violation of
26 U. S. C. § 7206(1). 527 U. S., at 6. At Neder’s trial, the
District Court instructed the jury that it “ ‘need not con
sider’ ” the materiality of any false statements to convict
Neder of the tax offenses or bank fraud, because materiality
“ ‘is not a question for the jury to decide.’ ” Ibid. The
court also failed to include materiality as an element of the
offenses of mail fraud and wire fraud. Ibid. We deter
mined that the District Court erred because under United
States v. Gaudin, 515 U. S. 506 (1995), materiality is an ele
ment of the tax offense that must be found by the jury. We
further determined that materiality is an element of the mail
fraud, wire fraud, and bank fraud statutes, and thus must be
submitted to the jury to support conviction of those crimes
as well. Neder, 527 U. S., at 20. We nonetheless held that
harmless-error analysis applied to these errors, because “an
instruction that omits an element of the offense does not nec
essarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.” Id.,
at 9. See also Schriro v. Summerlin, 542 U. S. 348, 355–356
(2004) (rejecting the claim that Ring v. Arizona, 536 U. S.
584 (2002), which applied Apprendi to hold that a jury must
find the existence of aggravating factors necessary to impose
the death penalty, was a “ ‘ “watershed rul[e] of criminal pro
cedure” implicating the fundamental fairness and accuracy
of the criminal proceeding,’ ” in part because we could not
“confidently say that judicial factfinding seriously dimin
ishes accuracy”).

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Opinion of the Court
The State and the United States urge that this case is
indistinguishable from Neder. We agree. Our decision in
Apprendi makes clear that “[a]ny possible distinction be
tween an ‘element’ of a felony offense and a ‘sentencing fac
tor’ was unknown to the practice of criminal indictment, trial
by jury, and judgment by court as it existed during the years
surrounding our Nation’s founding.” 530 U. S., at 478 (foot
note omitted). Accordingly, we have treated sentencing fac
tors, like elements, as facts that have to be tried to the jury
and proved beyond a reasonable doubt. Id., at 483–484.
The only difference between this case and Neder is that in
Neder, the prosecution failed to prove the element of materi
ality to the jury beyond a reasonable doubt, while here the
prosecution failed to prove the sentencing factor of “armed
with a firearm” to the jury beyond a reasonable doubt. As
signing this distinction constitutional significance cannot be
reconciled with our recognition in Apprendi that elements
and sentencing factors must be treated the same for Sixth
Amendment purposes.3
Respondent attempts to distinguish Neder on the ground
that, in that case, the jury returned a guilty verdict on the
offense for which the defendant was sentenced. Here, in
contrast, the jury returned a guilty verdict only on the of
fense of assault in the second degree, and an affirmative an
swer to the sentencing question whether respondent was
armed with a deadly weapon. Accordingly, respondent ar
3 Respondent also attempts to evade Neder by characterizing this as a
case of charging error, rather than of judicial factfinding. Brief for Re
spondent 16–19. Because the Supreme Court of Washington treated the
error as one of the latter type, we treat it similarly. See 154 Wash. 2d 156,
159–161, 110 P. 3d 188, 189–190 (2005) (considering “whether imposition of
a firearm enhancement without a jury finding that Recuenco was armed
with a firearm beyond a reasonable doubt violated Recuenco’s Sixth
Amendment right to a jury trial as defined by Apprendi v. New Jersey,
530 U. S. 466 [(2000)], and its progeny,” and whether the Apprendi and
Blakely error, if uninvited, could “be deemed harmless”).

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Opinion of the Court
gues, the trial court’s action in his case was the equivalent
of a directed verdict of guilt on an offense (assault in the
second degree while armed with a firearm) greater than the
one for which the jury convicted him (assault in the second
degree while armed with any deadly weapon). Rather than
asking whether the jury would have returned the same ver
dict absent the error, as in Neder, respondent contends that
applying harmless-error analysis here would “ ‘hypothesize a
guilty verdict that [was] never in fact rendered,’ ” in violation
of the jury-trial guarantee. Brief for Respondent 27 (quot
ing Sullivan, 508 U. S., at 279).
We find this distinction unpersuasive. Certainly, in
Neder, the jury purported to have convicted the defendant
of the crimes with which he was charged and for which he
was sentenced. However, the jury was precluded “from
making a finding on the actual element of the offense.” 527
U. S., at 10. Because Neder’s jury did not find him guilty of
each of the elements of the offenses with which he was
charged, its verdict is no more fairly described as a complete
finding of guilt of the crimes for which the defendant was
sentenced than is the verdict here. See id., at 31 (Scalia, J.,
concurring in part and dissenting in part) (“[S]ince all crimes
require proof of more than one element to establish guilt . . .
it follows that trial by jury means determination by a jury
that all elements were proved. The Court does not contest
this”). Put another way, we concluded that the error in
Neder was subject to harmless-error analysis, even though
the District Court there not only failed to submit the ques
tion of materiality to the jury, but also mistakenly concluded
that the jury’s verdict was a complete verdict of guilt on the
charges and imposed sentence accordingly. Thus, in order
to find for respondent, we would have to conclude that
harmless-error analysis would apply if Washington had a
crime labeled “assault in the second degree while armed with
a firearm,” and the trial court erroneously instructed the

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222 WASHINGTON v. RECUENCO
Kennedy, J., concurring
jury that it was not required to find a deadly weapon or a
firearm to convict, while harmless error does not apply in
the present case. This result defies logic.4
* * *
Failure to submit a sentencing factor to the jury, like fail
ure to submit an element to the jury, is not structural error.
Accordingly, we reverse the judgment of the Supreme Court
of Washington and remand the case for further proceedings
not inconsistent with this opinion.
It is so ordered.
Justice Kennedy, concurring.
The opinions for the Court in Apprendi v. New Jersey, 530
U. S. 466 (2000), Blakely v. Washington, 542 U. S. 296 (2004),
and their progeny were accompanied by dissents. The
Court does not revisit these cases today, and it describes
their holdings accurately. On these premises, the Court’s
analysis is correct. Cf. Ring v. Arizona, 536 U. S. 584, 613
(2002) (Kennedy, J., concurring). With these observations
I join the Court’s opinion.
4 The Supreme Court of Washington reached the contrary conclusion
based on language from Sullivan. See State v. Hughes, 154 Wash. 2d 118,
144, 110 P. 3d 192, 205 (2005) (“ ‘There being no jury verdict of guilty
beyond-a-reasonable-doubt, the question whether the same verdict of
guilty-beyond-a-reasonable-doubt would have been rendered absent the
constitutional error is utterly meaningless. There is no object, so to
speak, upon which harmless-error scrutiny can operate’ ” (quoting Sulli
van, 508 U. S., at 280)). Here, as in Neder, “this strand of reasoning in
Sullivan does provide support for [respondent]’s position.” 527 U. S.,
at 11. We recognized in Neder, however, that a broad interpretation of
our language from Sullivan is inconsistent with our case law. 527 U. S.,
at 11–15. Because the jury in Neder, as here, failed to return a complete
verdict of guilty beyond a reasonable doubt, our rejection of Neder’s pro
posed application of the language from Sullivan compels our rejection of
this argument here.

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Stevens, J., dissenting
Justice Stevens, dissenting.
Like Brigham City v. Stuart, 547 U. S. 398 (2006), and
Kansas v. Marsh, ante, p. 163, this is a case in which the
Court has granted review in order to make sure that a
State’s highest court has not granted its citizens any greater
protection than the bare minimum required by the Fed
eral Constitution. Ironically, the issue in this case is not
whether respondent’s federal constitutional rights were
violated—that is admitted—it is whether the Washington
Supreme Court’s chosen remedy for the violation is man
dated by federal law. As the discussion in Part II of the
Court’s opinion demonstrates, whether we even have juris
diction to decide that question is not entirely clear. But
even if our expansionist post-Michigan v. Long jurispru
dence supports our jurisdiction to review the decision below,
see 463 U. S. 1032 (1983), there was surely no need to reach
out to decide this case. The Washington Supreme Court
can, of course, reinstate the same judgment on remand,
either for the reasons discussed in Part II of the Court’s
opinion, see ante, at 217–218, and n. 1, or because that court
chooses, as a matter of state law, to adhere to its view that
the proper remedy for Blakely errors, see Blakely v. Wash
ington, 542 U. S. 296 (2004), is automatic reversal of the un
constitutional portion of a defendant’s sentence. Moreover,
because the Court does not address the strongest argument
in respondent’s favor—namely, that Blakely errors are struc
tural because they deprive criminal defendants of sufficient
notice regarding the charges they must defend against, see
ante, at 220, n. 3—this decision will have a limited impact on
other cases.
As I did in Brigham City and Marsh, I voted to deny
certiorari in this case. Given the Court’s decision to reach
the merits, however, I would affirm for the reasons stated in
Justice Ginsburg’s opinion, which I join.

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224 WASHINGTON v. RECUENCO
Ginsburg, J., dissenting
Justice Ginsburg, with whom Justice Stevens joins,
dissenting.
Between trial and sentencing, respondent Arturo Recuen
co’s prosecutor switched gears. The information charged
Recuenco with assault in the second degree, and further
alleged that at the time of the assault, he was armed with
a deadly weapon. App. 3. Without enhancement, the as
sault charge Recuenco faced carried a sentence of three to
nine months, id., at 15; Wash. Rev. Code §§ 9.94A.510,
9A.36.021(1)(c) (2004); the deadly weapon enhancement added
one mandatory year to that sentence, § 9.94A.533(4)(b).1
The trial judge instructed the jury on both the assault
charge and the deadly weapon enhancement. App. 7, 8. In
connection with the enhancement, the judge gave the jurors
a special verdict form and instructed them to answer “Yes
or No” to one question only: “Was the defendant . . . armed
with a deadly weapon at the time of the commission of the
crime of Assault in the Second Degree?” Id., at 13. The
jury answered: “Yes.” Ibid.
Because the deadly weapon Recuenco held was in fact a
handgun, the prosecutor might have charged, as an alterna
tive to the deadly weapon enhancement, that at the time of
the assault, Recuenco was “armed with a firearm.” That
enhancement would have added three mandatory years to
the assault sentence. § 9.94A.533(3)(b). The information
charging Recuenco, however, did not allege the firearm en
hancement. The jury received no instruction on it and was
given no special verdict form posing the question: Was the
defendant armed with a firearm at the time of the commis
sion of the crime of Assault in the Second Degree? See 154
Wash. 2d 156, 160, 110 P. 3d 188, 190 (2005) (“The jury was
not asked to, and therefore did not, return a special verdict
1 Since Recuenco was charged, some of the relevant statutory provisions
have been renumbered, without material revision. For convenience, we
follow the Court’s and the parties’ citation practice and refer to the cur
rent provisions.

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Ginsburg, J., dissenting
that Recuenco committed the assault while armed with a
firearm.”).
The prosecutor not only failed to charge Recuenco with
assault while armed with a firearm and to request a special
verdict tied to the firearm enhancement. He also informed
the court, after the jury’s verdict and in response to the de
fendant’s motion to vacate: “The method under which the
state is alleging and the jury found the assaul[t] commit
ted was by use of a deadly weapon.” App. 35. Leaving
no doubt, the prosecutor further clarified: “[I]n the crime
charged and the enhancement the state alleged, there is no
elemen[t] of a firearm. The element is assault with a deadly
weapon.” Ibid. Recuenco was thus properly charged,
tried, and convicted of second-degree assault while armed
with a deadly weapon. It was a solid case; no gap was left
to fill.
Nevertheless, at sentencing, the prosecutor requested, and
the trial judge imposed, a three-year mandatory enhance
ment for use of a firearm. Ibid. Recuenco objected to im
position of the firearm enhancement “without notice . . . and
a jury finding.” 154 Wash. 2d, at 161, 110 P. 3d, at 190. De
termining that there was no warrant for elevation of the
charge once the trial was over, the Washington Supreme
Court “remand[ed] for resentencing based solely on the
deadly weapon enhancement which is supported by the jury’s
special verdict.” Id., at 164, 110 P. 3d, at 192. I would af
firm that judgment. No error marred the case presented at
trial. The prosecutor charged, and the jury found Recuenco
guilty of, a complete and clearly delineated offense: “assault
in the second degree, being armed with a deadly weapon.”
The “harmless-error” doctrine was not designed to allow dis
lodgment of that error-free jury determination.
I
Under Washington law and practice, assault with a deadly
weapon and assault with a firearm are discrete charges, at

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226 WASHINGTON v. RECUENCO
Ginsburg, J., dissenting
tended by discrete instructions. As the Court observes,
ante, at 215, a charge of second-degree assault while armed
with a deadly weapon, § 9.94A.533(4)(b), subjects a defendant
to an additional year in prison, and a charge of second-degree
assault while armed with a firearm, § 9.94A.533(3)(b), calls
for an additional term of three years. “Deadly weapon,”
Washington law provides, encompasses any “implement or
instrument which has the capacity to inflict death and from
the manner in which it is used, is likely to produce or
may easily and readily produce death,” including, inter alia,
a “pistol, revolver, or any other firearm.” § 9.94A.602.
“Firearm” is defined, more particularly, to mean “a weapon
or device from which a projectile or projectiles may be fired
by an explosive such as gunpowder.” § 9.41.010(1). A
handgun (the weapon Recuenco held), it thus appears, might
have been placed in both categories.2
Washington Pattern Jury Instructions, Criminal (WPIC)
(West Supp. 2005), set out three instructions for cases in
which “an enhanced sentence is sought on the basis that
the defendant was armed with a ‘deadly weapon,’ ” WPIC
§ 2.06 (note on use): Deadly Weapon—General, § 2.07;
Deadly Weapon—Knife, § 2.07.01; Deadly Weapon—Firearm,
§ 2.07.02. When the prosecutor seeks an enhancement based
on the charge that “the defendant was armed with a ‘fire
arm,’ ” § 2.06, trial courts are directed to a different instruc
tion, one keyed to the elevated enhancement, § 2.10.01.
Matching special verdict forms for trial-court use are also
framed in the WPIC. When a “deadly weapon” charge is
made, whether generally or with a knife or firearm, the pre
2 But see App. 38. When the prosecutor, post-trial but presentence,
made it plain that he was seeking the three-year firearm enhancement
rather than the one-year deadly weapon enhancement, Recuenco objected
that the statutory definition of “firearm” had not been read to the jury, and
that the prosecutor had submitted no evidence showing that Recuenco’s
handgun was “designed to fire a projectile by explosive such as gunpow
der.” Ibid.

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Ginsburg, J., dissenting
scribed form asks the jury: “Was the defendant (defendant’s
name) armed with a deadly weapon at the time of the com
mission of the crime [in Count –––]?” § 190.01. When a
“firearm” charge is made, the jury is asked: “Was the defend
ant (defendant’s name) armed with a firearm at the time of
the commission of the crime [in Count –––]?” § 190.02.
In Recuenco’s case, the jury was instructed, in line with
the “deadly weapon” charge made by the prosecutor, App.
6–7, and the special verdict form given to the jury matched
that instruction. The form read:
“We, the jury, return a special verdict by answering
as follows:
“Was the defendant ARTURO R. RECUENCO
armed with a deadly weapon at the time of the commis
sion of the crime of Assault in the Second Degree?
“ANSWER: [YES] (Yes or No).” Id., at 13.
No “firearm” instruction, WPIC § 2.10.01 (West Supp. 2005),
was given to Recuenco’s jury, nor was the jury given the
special verdict form matching that instruction, § 190.02; see
supra, at 226, n. 2.
II
In the Court’s view, “this case is indistinguishable from
Neder [v. United States, 527 U. S. 1 (1999)].” Ante, at 220.
In that case, the trial judge made a finding necessary to fill
a gap in an incomplete jury verdict. One of the offenses
involved was tax fraud; the element missing from the jury’s
instruction was the materiality of the defendant’s alleged
misstatements. Under the mistaken impression that mate
riality was a question reserved for the court, the trial judge
made the finding himself. In fact in Neder, materiality was
not in dispute. See 527 U. S., at 7; see also id., at 15 (Neder
“d[id] not suggest that he would introduce any evidence
bearing upon the issue of materiality if so allowed.”). “Re
versal without any consideration of the effect of the error
upon the verdict would [have] sen[t] the case back for re

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228 WASHINGTON v. RECUENCO
Ginsburg, J., dissenting
trial—a retrial not focused at all on the issue of materiality,
but on contested issues on which the jury [had been] properly
instructed.” Ibid. The Court concluded that the Sixth
Amendment did not command that recycling.
Here, in contrast to Neder, the charge, jury instructions,
and special verdict contained no omissions; they set out com
pletely all ingredients of the crime of second-degree assault
with a deadly weapon. There is no occasion for any retrial,
and no cause to displace the jury’s entirely complete verdict
with, in essence, a conviction on an uncharged greater
offense.
III
The standard form judgment completed and signed by the
trial judge in this case included the following segment:
“SPECIAL VERDICT or FINDING(S):
“(b) [ ] A special verdict/finding for being armed with
a Firearm was rendered on Count(s) –––.
“(c) [X] A special verdict/finding for being armed with
a Deadly Weapon other than a firearm was rendered on
Count(s) I.” App. 14.
Count I was identified on the judgment form as “ASSAULT
IN THE 2ND DEGREE.” Ibid. Despite the “X” placed
next to the “Deadly Weapon” special verdict/finding, and the
blanks left unfilled in the “Firearm” special verdict/finding
lines, the trial judge imposed a sentence of 39 months (3
months for the assault, 36 months as the enhancement).
Had the prosecutor alternatively charged both enhance
ments, and had the judge accurately and adequately in
structed on both, giving the jury a special verdict form on
each of the two enhancements, the jury would have had the
prerogative to choose the lower enhancement. Specifically,
the jury could have answered “Yes” (as it in fact did, see
supra, at 227) to the “armed with a deadly weapon” inquiry
while returning no response to the alternative “firearm” in
quiry. See supra, at 226, and n. 2 (Washington’s statutory

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Ginsburg, J., dissenting
definition of “deadly weapon” overlaps definition of “fire
arm”); cf. United States v. Martin Linen Supply Co., 430
U. S. 564, 573 (1977) (“[R]egardless of how overwhelmingly
the evidence may point in that direction[, t]he trial judge
is . . . barred from attempting to override or interfere with
the jurors’ independent judgment in a manner contrary to
the interests of the accused.”). Today’s decision, advancing
a greater excluded (from jury control) offense notion, dimin
ishes the jury’s historic capacity “to prevent the punishment
from getting too far out of line with the crime.” United
States v. Maybury, 274 F. 2d 899, 902 (CA2 1960) (Friendly,
J.); see also Blakely v. Washington, 542 U. S. 296, 306 (2004)
(recognizing jury’s role “as circuitbreaker in the State’s ma
chinery of justice”).
* * *
In sum, Recuenco, charged with one crime (assault with
a deadly weapon), was convicted of another (assault with a
firearm), sans charge, jury instruction, or jury verdict.
That disposition, I would hold, is incompatible with the Fifth
and Sixth Amendments, made applicable to the States by
the Fourteenth Amendment. I would therefore affirm the
judgment of the Supreme Court of the State of Washington.