DEAN v. UNITED STATES

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568 OCTOBER TERM, 2008
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 rela
tion to any violent or drug trafficking crime, or possessing a firearm
in furtherance of such a crime, receives a 5-year mandatory minimum
sentence, in addition to the punishment for the underlying crime. 18
U. S. C. § 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 dis
charged.” §§ 924(c)(1)(A)(ii), (iii).
Petitioner Dean was convicted of conspiring to commit a bank robbery
and discharging a firearm during an armed robbery. Because the fire
arm was “discharged” during the robbery, Dean was sentenced 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 acci
dental, and that § 924(c)(1)(A)(iii) requires proof that the defendant in
tended to discharge the firearm. The Eleventh Circuit affirmed, hold
ing 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 acci
dent. Pp. 571–577.
(a) Subsection (iii) provides a minimum 10-year sentence “if the fire
arm 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, 522 U. S. 23, 29.
Congress’s use of the passive voice further indicates that subsection (iii)
does not require proof of intent. Cf. Watson v. United States, 552
U. S. 74, 81. The statute’s structure also suggests no such limitation.
Congress expressly included an intent requirement for the 7-year man
datory minimum for brandishing a firearm by separately defining “bran
dish” to require that the firearm be displayed “in order to intimidate”
another person. § 924(c)(4). Congress did not, however, separately de
fine “discharge” to include an intent requirement. It is generally pre
sumed that Congress acts intentionally when including particular lan
guage in one section of a statute but not in another. Russello v. United
States, 464 U. S. 16, 23. Contrary to Dean’s contention, the phrase “dur
ing and in relation to” in the opening paragraph of § 924(c)(1)(A) does

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569 Cite as: 556 U. S. 568 (2009)
Syllabus
not modify “is discharged,” which appears in a separate subsection and
in a different voice than the principal paragraph. “[I]n relation to” is
most naturally read to modify only the nearby verbs “uses” and “car
ries.” This reading will not lead to the absurd results posited by
Dean. Pp. 572–574.
(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 unusual to im
pose criminal punishment for the consequences of purely accidental con
duct, it is not unusual to punish individuals for the unintended conse
quences of their unlawful acts. The fact that the discharge may be
accidental does not mean that the defendant is blameless. The sentenc
ing enhancement accounts for the risk of harm resulting from the man
ner in which the crime is carried out, for which the defendant is respon
sible. See Harris v. United States, 536 U. S. 545, 553. An individual
bringing a loaded weapon to commit a crime runs the risk that the gun
will discharge accidentally. A gunshot—whether accidental or in
tended—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. 574–577.
(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. P. 577.
517 F. 3d 1224, affirmed.
Roberts, C. J., delivered the opinion of the Court, in which Scalia,
Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Ste
vens, J., post, p. 578, and Breyer, J., post, p. 583, filed dissenting opinions.
Scott J. Forster, by appointment of the Court, 555 U. S.
1095, argued the cause for petitioner. With him on the
briefs were Jeffrey T. Green, Quin M. Sorenson, and Sarah
O’Rourke Schrup.
Deanne E. Maynard argued the cause for the United
States. With her on the brief were then-Acting Solicitor
General Kneedler, Acting Assistant Attorney General
Glavin, Deputy Solicitor General Dreeben, and Vijay
Shanker.*
*David Salmons, Robert V. Zener, Pamela Harris, Henry J. Bemporad,
Mary Price, and Peter Goldberger filed a brief for the National Association
of Criminal Defense Lawyers et al. as amici curiae urging reversal.

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570 DEAN v. UNITED STATES
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
Accidents happen. Sometimes they happen to individuals
committing crimes with loaded guns. The question here is
whether extra punishment Congress imposed for the dis
charge of a gun during certain crimes applies when the gun
goes off accidentally.
I
Title 18 U. S. C. § 924(c)(1)(A) criminalizes using or carry
ing a firearm during and in relation to any violent or drug
trafficking crime, or possessing a firearm in furtherance of
such a crime. An individual convicted of that offense re
ceives 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 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, leaving 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 18 U. S. C. § 1951(a), and aiding and
abetting each other in using, carrying, possessing, and dis
charging a firearm during an armed robbery, in violation of
§ 924(c)(1)(A)(iii) and § 2. App. 11–12. At trial, Dean ad
mitted that he had committed the robbery, id., at 76–81, and

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Opinion of the Court
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 acciden
tal, and that the sentencing enhancement in § 924(c)(1)(A)(iii)
requires proof that the defendant intended to discharge the
firearm. The Court of Appeals affirmed, holding that sepa
rate proof of intent was not required. 517 F. 3d 1224, 1229
(CA11 2008). That decision created a conflict among the
Circuits over whether the accidental discharge of a firearm
during the specified crimes gives rise to the 10-year manda
tory minimum. See United States v. Brown, 449 F. 3d 154
(CADC 2006) (holding that it does not). We granted certio
rari to resolve that conflict. 555 U. S. 1028 (2008).
II
Section 924(c)(1)(A) provides:
“[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime . . . uses or carries
a firearm, or who, in furtherance of any such crime, pos
sesses 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 sentenced.’ ”
Harris v. United States, 536 U. S. 545, 552 (2002). Subsec
tion (i) “sets a catchall minimum” sentence of not less than

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572 DEAN v. UNITED STATES
Opinion of the Court
five years. Id., at 552–553. Subsections (ii) and (iii) in
crease the minimum penalty if the firearm “is brandished”
or “is discharged.” See id., at 553. 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, 529 U. S. 420, 431 (2000). The text of
subsection (iii) provides that a defendant shall be sentenced
to a minimum of 10 years “if the firearm is discharged.” 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, 522 U. S. 23 (1997),
in declining to infer an “ ‘intent to defraud’ ” requirement
into a statute, “we ordinarily resist reading words or ele
ments into a statute that do not appear on its face.” Id.,
at 29.
Congress’s use of the passive voice further indicates that
subsection (iii) does not require proof of intent. The passive
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, 552 U. S.
74, 81 (2007) (use of passive voice in statutory phrase “to be
used” in 18 U. S. C. § 924(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 subsection
(iii) is not limited to the intentional discharge of a firearm.
Subsection (ii) provides a 7-year mandatory minimum sen
tence if the firearm “is brandished.” Congress expressly in
cluded 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 in

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Opinion of the Court
tended 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 in
tent 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 Con
gress acts intentionally and purposely in the disparate inclu
sion or exclusion.” Russello v. United States, 464 U. S. 16,
23 (1983) (internal quotation marks omitted).
Dean argues that the statute is not silent on the question
presented. Congress, he contends, included an intent ele
ment in the opening paragraph of § 924(c)(1)(A), and that ele
ment extends to the sentencing enhancements. Section
924(c)(1)(A) criminalizes using or carrying a firearm “during
and in relation to” any violent or drug trafficking crime. In
Smith v. United States, 508 U. S. 223 (1993), we stated that
the phrase “in relation to” means “that the firearm must
have some purpose or effect with respect to the drug traf
ficking crime; its presence or involvement cannot be the re
sult of accident or coincidence.” Id., at 238. Dean argues
that the adverbial phrase thus necessarily embodies an in
tent 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 per
petrator knowingly discharge the firearm for the enhance
ment 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 sepa
rate 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

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574 DEAN v. UNITED STATES
Opinion of the Court
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 re
sults. The discharge provision on its face contains no tem
poral or causal limitations. In the absence of an intent re
quirement, 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 exam
ple, 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
crime was carried out.” Brief for United States 29 (quoting
Harris, 536 U. S., at 553; internal quotation marks omitted).
The basic crime here is using or carrying a firearm during
and in relation to a violent or drug trafficking crime, or pos
sessing 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,” id., at
553 (internal quotation 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 criminal
prohibitions include a requirement that the Government
prove the defendant intended the conduct made criminal.
In light of this presumption, we have “on a number of occa
sions read a state-of-mind component into an offense even

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Opinion of the Court
when the statutory definition did not in terms so provide.”
United States v. United States Gypsum Co., 438 U. S. 422,
437 (1978). “[S]ome indication of congressional intent, ex
press or implied, is required to dispense with mens rea as an
element of a crime.” Staples v. United States, 511 U. S. 600,
606 (1994).
Dean argues that the presumption is especially strong in
this case, given the structure and purpose of the statute. In
his view, the three subsections are intended to provide
harsher penalties for increasingly culpable conduct: a 5-year
minimum for using, carrying, or possessing a firearm; a 7
year minimum for brandishing a firearm; and a 10-year mini
mum for discharging a firearm. Incorporating an intent re
quirement into the discharge provision is necessary to give
effect to that progression, because an accidental discharge is
less culpable than intentional brandishment. See Brown,
449 F. 3d, at 156.
It is unusual to impose criminal punishment for the conse
quences of purely accidental conduct. But it is not unusual
to punish individuals for the unintended consequences of
their unlawful acts. See 2 W. LaFave, Substantive Crimi
nal Law § 14.4, pp. 436–437 (2d ed. 2003). The felony
murder rule is a familiar example: If a defendant commits
an unintended homicide while committing another felony, the
defendant can be convicted of murder. See 18 U. S. C.
§ 1111. The Sentencing Guidelines reflect the same princi
ple. See United States Sentencing Commission, Guidelines
Manual § 2A2.2(b)(3) (Nov. 2008) (USSG) (increasing offense
level for aggravated assault according to the seriousness of
the injury); § 2D2.3 (increasing offense level for operating or
directing the operation of a common carrier under the influ
ence 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 excused

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Opinion of the Court
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 of
fence, in doing antecedently what is in itself unlawful,
he is criminally guilty of whatever consequence may fol
low the first misbehaviour.” 4 W. Blackstone, Commen
taries 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 of
fense. That unlawful conduct was not an accident. See
Smith, 508 U. S., at 238.
The fact that the actual discharge of a gun covered under
§ 924(c)(1)(A)(iii) may be accidental does not mean that the
defendant is blameless. The sentencing enhancement 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 Harris, supra, at 553. An in
dividual who brings a loaded weapon to commit a crime runs
the risk that the gun will discharge accidentally. A gunshot
in such circumstances—whether accidental or intended—in
creases the risk that others will be injured, that people will
panic, or that violence (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 provisions,
such as the Sentencing Guidelines (but only if “bodily injury”
results). Post, at 583 (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

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Opinion of the Court
applicable sentencing provisions. Punishment available
under such provisions therefore does not suggest that the
statute at issue here is limited to intentional discharges.
And although the point is not relevant under the correct
reading of the statute, it is wrong to assert that the gunshot
here “caused no harm.” Post, at 578. By pure luck, no one
was killed or wounded. But the gunshot plainly added to
the trauma experienced by those held during the armed rob
bery. 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?’ ”).
C
Dean finally argues that any doubts about the proper in
terpretation 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, however, is
not sufficient to warrant application of that rule, for most
statutes are ambiguous to some degree.” Muscarello v.
United States, 524 U. S. 125, 138 (1998); see also Smith,
supra, at 239 (“The mere possibility of articulating a nar
rower construction, however, does not by itself make the rule
of lenity applicable”). “To invoke the rule, we must con
clude that there is a grievous ambiguity or uncertainty in the
statute.” Muscarello, supra, at 138–139 (internal quotation
marks omitted). In this case, the statutory text and struc
ture convince us that the discharge provision does not con
tain 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 in
tent. 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 judgment of
the Court of Appeals for the Eleventh Circuit is affirmed.
It is so ordered.

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578 DEAN v. UNITED STATES
Stevens, J., dissenting
Justice Stevens, dissenting.
Accidents happen, but they seldom give rise to criminal
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 sen
tence—a species of criminal liability—for an accident that
caused no harm. For two reasons, 18 U. S. C. § 924(c)(1)
(A)(iii) should not be so construed. First, the structure of
§ 924(c)(1)(A) suggests that Congress intended to provide es
calating 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 penalties require proof of mens
rea would lead to the same conclusion. Cf. United States v.
X-Citement Video, Inc., 513 U. S. 64, 70 (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 in
tentional discharges. The statute’s structure supports the
inference that Congress intended to impose increasingly
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, 508 U. S.
223, 238 (1993) (“The phrase ‘in relation to’ . . . at a minimum,
clarifies that the firearm must have some purpose or effect

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579 Cite as: 556 U. S. 568 (2009)
Stevens, J., dissenting
with respect to the drug trafficking crime; its presence or
involvement cannot be the result of accident or coincidence”).
Similarly, 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 con
text, the most natural reading of clause (iii), which imposes
the greatest mandatory penalty, is that it provides additional
punishment for the more culpable act of intentional
discharge.1
The legislative history also indicates that Congress in
tended to impose an enhanced penalty only for intentional
discharge. In Bailey v. United States, 516 U. S. 137, 148
(1995), the Court held that “use” of a firearm for purposes of
§ 924(c)(1) required some type of “active employment,” such
as “brandishing, displaying, bartering, striking with, and,
most obviously, firing or attempting to fire.” Congress re
sponded to Bailey by amending § 924(c)(1), making it an of
fense 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(a)(1),
112 Stat. 3469; see also 144 Cong. Rec. 26608 (1998) (remarks
of Sen. DeWine) (referring to the amendments as the “Bailey
Fix Act”). Given the close relationship between the Bailey
decision and Congress’ enactment of the brandishing and dis
charge provisions, those terms are best read as codifying
some of the more culpable among the “active employment[s]”
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
1 Contrary to the Court’s suggestion, ante, at 572–573, Congress’ provi
sion 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 re
quirement and thereby make offenders strictly liable.

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580 DEAN v. UNITED STATES
Stevens, J., dissenting
presumption that criminal provisions include an intent re
quirement would lead me to the same conclusion. Consist
ent with the common-law tradition, the requirement of mens
rea has long been the rule of our criminal jurisprudence.
See United States v. United States Gypsum Co., 438 U. S.
422 (1978). The concept of crime as a “concurrence of an
evil-meaning mind with an evil-doing hand . . . took deep and
early root in American soil.” Morissette v. United States,
342 U. S. 246, 251–252 (1952). Legislating against that back
drop, States often omitted intent elements when codifying
the criminal law, and “courts assumed that the omission did
not signify disapproval of the principle but merely recog
nized that intent was so inherent in the idea of the offense
that it required no statutory affirmation.” Id., at 252. Sim
ilarly, absent a clear statement by Congress that it intended
to create a strict-liability offense, a mens rea requirement
has generally been presumed in federal statutes. See id., at
273; Staples v. United States, 511 U. S. 600, 605–606 (1994).
With only a few narrowly delineated exceptions for such
crimes as statutory rape and public welfare offenses, the pre
sumption 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, 258 U. S. 250 (1922)).
Although mandatory minimum sentencing provisions are
of too recent genesis to have any common-law pedigree, see
Harris v. United States, 536 U. S. 545, 579, 581, n. 5 (2002)
(Thomas, J., dissenting), there is no sensible reason for treat
ing 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 sen
tencing judge has discretion to issue sentences 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

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Stevens, J., dissenting
Thomas noted in Harris, “the sentence imposed when a de
fendant 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 bran
dished 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; 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 any
thing, imposition of a mandatory minimum sentence under
§ 924(c)(1)(A) will likely have a greater effect on a defend
ant’s liberty than will conviction for another offense because,
unlike sentences for most federal offenses, sentences im
posed pursuant to that section must be served consecutively
to any other sentence. See § 924(c)(1)(D)(ii).
As the foregoing shows, mandatory minimum sentencing
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 indica
tion that Congress intended to create a strict-liability en
hancement, courts should presume that a provision that man
dates 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., 503 U. S. 291, 305 (1992) (plural
ity opinion); Bifulco v. United States, 447 U. S. 381, 387
(1980); Ladner v. United States, 358 U. S. 169, 178 (1958).2
2 To be sure, there are also inquiries for which the Court has said that
sentencing provisions are different. In Harris v. United States, 536 U. S.
545, 557 (2002) (plurality opinion), and McMillan v. Pennsylvania, 477
U. S. 79, 87–88 (1986), the Court distinguished for purposes of constitu

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582 DEAN v. UNITED STATES
Stevens, J., dissenting
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
575, but the collection of examples that follows this asser
tion is telling. The Court cites the felony-murder rule,
18 U. S. C. § 1111, 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 of
fense level for operating a common carrier under the influ
ence 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 con
trast, § 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 ex
plicit 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 felo
tional analysis mandatory minimum sentencing schemes from offense ele
ments 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 but
tressed by our subsequent decision in United States v. Booker, 543 U. S.
220, 233–234 (2005).

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583 Cite as: 556 U. S. 568 (2009)
Breyer, J., dissenting
nious conduct underscores the reasonableness of reading
§ 924(c)(1)(A)(iii) to require proof of intent. When harm re
sults 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) (increasing 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) indi
cates that the latter provision was intended to serve a dif
ferent purpose—namely, to punish the more culpable act of
intentional discharge.
III
In sum, the structure and history of § 924(c)(1)(A) indicate
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 presumption 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 presumption; 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.
Justice Breyer, dissenting.
For many of the reasons that Justice Stevens sets forth,
I believe the statutory provision before us applies to inten
tional, but not to accidental, discharges of firearms. As Jus
tice Stevens points out, this Court in Bailey v. United
States, 516 U. S. 137, 148 (1995), held that simple possession
of a firearm, without some type of “active employment,” such
as “brandishing, displaying, bartering, striking with, and,
most obviously, firing or attempting to fire,” did not consti

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584 DEAN v. UNITED STATES
Breyer, J., dissenting
tute “use” of a firearm. See ante, at 579 (dissenting opin
ion). 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 consid
ered ways in which an offender might use a firearm. See
ante, at 579. If so, the statutory words “is discharged,” 18
U. S. C. § 924(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 con
trary. But, in my view, the “rule of lenity” tips the balance
against the majority’s position. The “rule of lenity” as ordi
narily applied reflects the law’s insistence that a criminal
statute provide “fair warning . . . of what the law intends to
do if a certain line is passed.” United States v. Bass, 404
U. S. 336, 348 (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 Congress’ sentencing intent.
That is because, in the case of a mandatory minimum, an
interpretation that errs on the side of exclusion (an interpre
tive 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 (because of the
court’s interpretation of the statute) is not legislatively re
quired. 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 sentenc
ing 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 discharge put no one at risk. See, e. g.,

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585 Cite as: 556 U. S. 568 (2009)
Breyer, J., dissenting
Koon v. United States, 518 U. S. 81, 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 statute. Moreover, an error that excludes (erroneously)
a set of instances Congress meant to include (such as acciden
tal discharge) could lead the Sentencing Commission to focus
on those cases and exercise its investigative and judgmental
powers to decide how those cases should be handled. 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 impris
onment on individuals whom Congress would not have in
tended to punish so harshly. Such an interpretation 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 erroneously taking discretion
away from the sentencing judge, would ensure results that
depart dramatically from those Congress would have in
tended. Cf. Harris v. United States, 536 U. S. 545, 570
(2002) (Breyer, J., concurring in part and concurring in
judgment) (“[S]tatutory mandatory minimums generally
deny the judge the legal power to depart downward, no mat
ter how unusual the special circumstances that call for le
niency”). Moreover, because such unusual cases are (by
definition) rare, these errors would provide little incentive
to the Sentencing Commission 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 suf
ficiently ambiguous to warrant the application of that rule,
I respectfully dissent.