UNITED STATES v. RODRIQUEZ

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377 OCTOBER TERM, 2007
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UNITED STATES v. RODRIQUEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 06–1646. Argued January 15, 2008—Decided May 19, 2008
Upon respondent’s federal conviction for possession of a firearm by a con
victed felon, 18 U. S. C. § 922(g)(1), he had three prior Washington state
convictions for delivery of a controlled substance. At the time of those
convictions, Washington law specified a maximum 5-year prison term
for the first such offense. A recidivist provision, however, set a 10-year
ceiling for a second or subsequent offense, and the state court had sen
tenced respondent to concurrent 48-month sentences on each count.
The Government contended in the federal felon-in-possession case that
respondent should be sentenced under the Armed Career Criminal Act
(ACCA), § 924(e), which sets a 15-year minimum sentence “[i]n the case
of a person who violates [§ 922(g)] and has three previous convictions . . .
for a . . . serious drug offense,” § 924(e)(1). Because a state drug
trafficking conviction qualifies as “a serious drug offense” if “a maximum
term of imprisonment of ten years or more is prescribed by law” for the
“offense,” § 924(e)(2)(A)(ii), and the maximum term on at least two of
respondent’s Washington crimes was 10 years under the state recidivist
provision, the Government argued that these convictions had to be
counted under ACCA. The District Court disagreed, holding that the
“maximum term of imprisonment” for § 924(e)(2)(A)(ii) purposes is de
termined without reference to recidivist enhancements. The Ninth
Circuit affirmed.
Held: The “maximum term of imprisonment . . . prescribed by law” for
the state drug convictions at issue was the 10-year maximum set by the
applicable state recidivist provision. Pp. 382–393.
(a) This reading is compelled by a straightforward application of
§ 924(e)(2)(A)(ii)’s three key terms: “offense,” “law,” and “maximum
term.” The “offense” was the crime charged in each of respondent’s
drug-delivery cases. And because the relevant “law” is the state stat
utes prescribing 5- and 10-year prison terms, the “maximum term” pre
scribed for at least two of respondent’s state drug offenses was 10 years.
The Ninth Circuit’s holding that the maximum term was 5 years con
torts ACCA’s plain terms. Although the state court sentenced respond
ent to 48 months, there is no dispute that state law permitted a sentence
of up to 10 years. The Circuit’s interpretation is also inconsistent with

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how the concept “maximum term of imprisonment” is customarily un
derstood by participants in the criminal justice process. Pp. 382–384.
(b) Respondent’s textual argument—that because “offense” generally
describes a crime’s elements, while prior convictions required for recidi
vist enhancements are not typically elements, such convictions are not
part of the ACCA “offense,” and the “maximum term” for the convic
tions at issue was the 5-year ceiling for simply committing the drug
offense elements—is not faithful to the statutory text, which refers to
the maximum 10-year term prescribed by Washington law for each of
respondent’s two relevant offenses. Respondent’s “manifest purpose”
argument—that because ACCA uses the maximum state-law penalty as
shorthand for conduct sufficiently serious to trigger the mandatory pen
alty, while an offense’s seriousness is typically gauged by the nature of
the defendant’s conduct, the offense’s elements, and the crime’s impact,
a defendant’s recidivist status has no connection to whether his offense
was serious—rests on the erroneous proposition that a prior record has
no bearing on an offense’s seriousness. Respondent’s understanding of
recidivism statutes has been squarely rejected. See, e. g., Nichols v.
United States, 511 U. S. 738, 747. Pp. 384–386.
(c) Respondent’s argument that the Court’s ACCA interpretation pro
duces a perverse bootstrapping whereby a defendant is punished under
federal law for being treated as a recidivist under state law is rejected.
The Court’s reading is bolstered by the fact that ACCA is itself a recidi
vist statute, so that Congress must have understood that the “maximum
penalty prescribed by [state] law” could be increased by state recidivism
provisions. Contrary to respondent’s suggestion, United States v. La-
Bonte, 520 U. S. 751—in which the Court held that the phrase “maxi
mum term authorized” in 28 U. S. C. § 994(h) “refers to all applicable
statutes,” including recidivist enhancements—supports the Court’s
ACCA interpretation. Respondent’s reliance on Taylor v. United
States, 495 U. S. 575, is also misplaced: There is no connection between
the issue there (the meaning of “burglary” in § 924(e)(2)(B)(ii)) and the
meaning of “maximum term of imprisonment . . . prescribed by law” in
§ 924(e)(2)(A)(ii). Respondent argues unpersuasively that, under to
day’s interpretation, offenses that are not really serious will be included
as “serious drug offense[s]” because of recidivist enhancements. Since
Congress presumably thought that state lawmakers must consider a
crime “serious” when they provide a 10-year sentence for it, this Court’s
holding poses no risk that a drug-trafficking offense will be treated
as “serious” without satisfying the standard Congress prescribed.
Pp. 386–388.
(d) Also rejected is respondent’s argument that the Court’s holding
will often require federal courts to engage in difficult inquiries regard

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ing novel state-law questions and complex factual determinations about
long-past state-court proceedings. Respondent greatly exaggerates
the difficulties because (1) receipt of a recidivist enhancement will neces
sarily be evident from the sentence’s length in some cases; (2) the con
viction judgment will sometimes list the maximum possible sentence
even where the sentence actually imposed did not exceed the top sen
tence allowed without recidivist enhancement; (3) some jurisdictions re
quire the prosecution to submit a publicly available charging document
to obtain a recidivist enhancement; (4) a plea colloquy will often include
a statement by the trial judge regarding the maximum penalty; and
(5) where the records do not show that the defendant faced a recidivist
enhancement, the Government may well be precluded from establishing
that a conviction was for a qualifying offense. Merely because future
cases might present difficulties cannot justify disregarding ACCA’s clear
meaning. Pp. 388–389.
(e) Also unavailing is respondent’s argument that if recidivist en
hancements can increase the “maximum term” under ACCA, then man
datory guidelines systems capping sentences can decrease the “maxi
mum term,” whereas Congress cannot have wanted to make the
“maximum term” dependent on the complexities of state sentencing
guidelines. The phrase “maximum term of imprisonment . . . pre
scribed by law” for the “offense” could not have been meant to apply to
the top sentence in a guidelines range because (1) such a sentence is
generally not really the maximum because guidelines systems typically
allow a sentencing judge to impose a sentence that exceeds the top of
the guidelines range under appropriate circumstances; and (2) in all of
the many statutes predating ACCA and the federal Sentencing Reform
Act of 1984 that used the concept of the “maximum” term prescribed by
law, the concept necessarily referred to the maximum term prescribed
by the relevant criminal statute, not the top of a sentencing guidelines
range. United States v. R. L. C., 503 U. S. 291, 295, n. 1, 299, distin
guished. Pp. 390–393.
464 F. 3d 1072, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J.,
filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined,
post, p. 393.
Kannon K. Shanmugam argued the cause for the United
States. With him on the briefs were Solicitor General

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Clement, Assistant Attorney General Fisher, Deputy Solici
tor General Dreeben, and Daniel S. Goodman.
Charles A. Rothfeld argued the cause for respondent.
With him on the brief were Andrew J. Pincus, Dan M.
Kahan, and L. Cece Glenn.*
Justice Alito delivered the opinion of the Court.
Under the Armed Career Criminal Act (ACCA), 18
U. S. C. § 924(e)(2)(A)(ii), a state drug-trafficking conviction
qualifies as “a serious drug offense” if “a maximum term of
imprisonment of ten years or more is prescribed by law” for
the “offense.” The Court of Appeals for the Ninth Circuit
held that “the maximum term of imprisonment . . . pre
scribed by law” must be determined without taking recidi
vist enhancements into account. 464 F. 3d 1072, 1082 (2006).
We reverse.
I
At issue in this case is respondent’s sentence on his 2004
conviction in the United States District Court for the East
ern District of Washington for possession of a firearm by a
convicted felon, in violation of 18 U. S. C. § 922(g)(1). Re
spondent had two prior state convictions in California for
residential burglary and three state convictions in Washing
ton for delivery of a controlled substance, in violation of
Wash. Rev. Code §§ 69.50.401(a)(1)(ii)–(iv) (1994).1 Respond
ent’s three Washington drug convictions occurred on the
same day but were based on deliveries that took place on
three separate dates. Sentencing Order in No. CR–03–142–
*Briefs of amici curiae urging affirmance were filed for the National
Association of Criminal Defense Lawyers by Jeffrey L. Fisher and
Thomas W. Hillier II; and for Professors of Criminal Law by Meir Feder,
Donald B. Ayer, and Samuel Estreicher.
1 “Except as authorized by this chapter, it is unlawful for any person to
manufacture, deliver, or possess with intent to manufacture or deliver a
controlled substance.” Wash. Rev. Code § 69.50.401(a) (1994).

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RHW (ED Wash., Sept. 3, 2004), p. 5, App. 245, 250 (herein
after Sentencing Order). At the time of respondent’s drug
offenses, the Washington statute that respondent was con
victed of violating stated that, upon conviction, a defend
ant could be “imprisoned for not more than five years,”
§§ 69.50.401(a)(1)(ii)–(iv), but another provision specified that
“[a]ny person convicted of a second or subsequent offense”
could “be imprisoned for a term up to twice the term other
wise authorized,” § 69.50.408(a). Thus, by virtue of this
latter, recidivist, provision respondent faced a maximum
penalty of imprisonment for 10 years. The judgment of con
viction for each of the drug-delivery charges listed the maxi
mum term of imprisonment for the offense as “ten years,”
App. 16, 42, 93, but the state court sentenced respondent to
concurrent sentences of 48 months’ imprisonment on each
count, id., at 21, 47, 98.
In the federal felon-in-possession case, the Government
asked the District Court to sentence respondent under
ACCA, which sets a 15-year minimum sentence “[i]n the case
of a person who violates section 922(g) of [Title 18] and has
three previous convictions . . . for a violent felony or a seri
ous drug offense, or both, committed on occasions different
from one another . . . .” 18 U. S. C. § 924(e)(1) (2000 ed.,
Supp. V). The Government argued that respondent’s two
prior California burglary convictions were for “ ‘violent fel
onies.’ ” Pet. for Cert. 4. See § 924(e)(2)(B)(ii) (2000 ed.)
(listing “burglary” as a “violent felony”). The District
Court agreed, and that ruling is not at issue here.
The Government also argued that at least two of respond
ent’s Washington drug convictions were for “serious drug
offense[s].” Under ACCA, a “serious drug offense” includes:
“an offense under State law, involving manufacturing,
distributing, or possessing with intent to distribute, a
controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U. S. C. 802)), for which

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a maximum term of imprisonment of ten years or
more is prescribed by law.” § 924(e)(2)(A)(ii) (empha
sis added).
Because the maximum term that respondent faced on at least
two of the Washington charges was 10 years, the Govern
ment contended that these convictions had to be counted
under ACCA. The District Court disagreed, holding that
respondent’s drug-trafficking convictions were not convic
tions for “serious drug offense[s]” under ACCA because the
“maximum term of imprisonment” for the purposes of
§ 924(e)(2)(A)(ii) is determined without reference to recidi
vist enhancements. Sentencing Order, at 9, App. 254.
The Court of Appeals for the Ninth Circuit, applying its
prior precedent in United States v. Corona-Sanchez, 291
F. 3d 1201 (2002) (en banc), affirmed. 464 F. 3d 1072. The
court recognized that its decision conflicted with the Sev
enth Circuit’s decision in United States v. Henton, 374 F. 3d
467, 469–470, cert. denied, 543 U. S. 967 (2004), and was “in
tension” with decisions of the Fourth and Fifth Circuits.
464 F. 3d, at 1082, n. 6; see Mutascu v. Gonzales, 444 F. 3d
710, 712 (CA5 2006) (per curiam); United States v. Williams,
326 F. 3d 535, 539 (CA4 2003). We granted the Govern
ment’s petition for a writ of certiorari, 551 U. S. 1191 (2007).
II
The question that we must decide is whether the “maxi
mum term of imprisonment prescribed by law” in this case
is, as respondent maintains and the Ninth Circuit held, the
5-year ceiling for first offenses or, as the Government con
tends, the 10-year ceiling for second or subsequent offenses.
See Wash. Rev. Code §§ 69.50.401(a)(1)(ii)–(iv), 69.50.408(a).
The Government’s reading is compelled by the language of
ACCA. For present purposes, there are three key statutory
terms: “offense,” “law,” and “maximum term.” The “of
fense” in each of the drug-delivery cases was a violation of
§§ 69.50.401(a)(1)(ii)–(iv). The relevant “law” is set out in

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both that provision, which prescribes a “maximum term” of
5 years for a first “offense,” and § 69.50.408(a), which pre
scribes a “maximum term” of 10 years for a second or subse
quent “offense.” Thus, in this case, the maximum term pre
scribed by Washington law for at least two of respondent’s
state drug offenses was 10 years.
The Ninth Circuit’s holding that the maximum term was
five years contorts ACCA’s plain terms. Although the
Washington state court sentenced respondent to 48 months’
imprisonment, there is no dispute that § 69.50.408(a) permit
ted a sentence of up to 10 years. On the Ninth Circuit’s
reading of ACCA, even if respondent had been sentenced to,
say, six years’ imprisonment, “the maximum term of impris
onment” prescribed by law still would have been five years.
It is hard to accept the proposition that a defendant may
lawfully be sentenced to a term of imprisonment that ex
ceeds the “maximum term of imprisonment . . . prescribed
by law,” but that is where the Ninth Circuit’s reading of the
statute leads.
The Ninth Circuit’s interpretation is also inconsistent with
the way in which the concept of the “maximum term of im
prisonment” is customarily understood by participants in the
criminal justice process. Suppose that a defendant who in
disputably had more than three prior convictions for “violent
felon[ies]” or “serious drug offense[s]” was charged in federal
court with violating the felon-in-possession statute. Under
ACCA, this defendant would face a sentence of “not less than
15 years.” 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). Sup
pose that the defendant asked his or her attorney, “What’s
the maximum term I face for the new offense?” An attor
ney aware of ACCA would surely not respond, “10 years,”
even though 10 years is the maximum sentence without the
ACCA enhancement. See § 924(a)(2) (2000 ed.).
Suppose that the defendant then pleaded guilty to the
felon-in-possession charge. Under Federal Rule of Criminal
Procedure 11(b)(1)(H), the trial judge would be required to

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advise the defendant of the “maximum possible penalty.” If
the judge told the defendant that the maximum possible sen
tence was 10 years and then imposed a sentence of 15 years
based on ACCA, the defendant would have been sorely mis
led and would have a ground for moving to withdraw the
plea. See United States v. Gonzalez, 420 F. 3d 111, 132 (CA2
2005); United States v. Harrington, 354 F. 3d 178, 185–186
(CA2 2004). In sum, a straightforward application of the
language of ACCA leads to the conclusion that the “maxi
mum term of imprisonment prescribed by law” in this case
was 10 years.
III
A
In an effort to defend the Ninth Circuit’s decision, re
spondent offers both a textual argument and a related argu
ment based on the “manifest purpose” of ACCA. Brief for
Respondent 8.
Respondent’s textual argument is as follows. The term
“offense” “generally is understood to describe the elements
constituting the crime.” Id., at 10. Because prior convic
tions required for recidivist enhancements are not typically
offense elements, they should not be considered part of the
“offense” under ACCA. Thus, the “maximum term of im
prisonment prescribed by law” for the drug convictions at
issue was the maximum term prescribed for simply commit
ting the elements of the drug offense and was therefore five
years. Id., at 10–11.
Respondent’s argument is not faithful to the statutory
text. Respondent reads ACCA as referring to “the maxi
mum term of imprisonment prescribed by law” for a defend
ant with no prior convictions that trigger a recidivist en
hancement, but that is not what ACCA says. ACCA instead
refers to “the maximum term of imprisonment prescribed by
law” for “an offense,” and, as previously explained, in this
case, the maximum term prescribed by Washington law for
each of respondent’s two relevant offenses was 10 years.

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Respondent’s argument based on ACCA’s “manifest pur
pose” must also be rejected. Respondent argues that
ACCA uses “the maximum penalty specified for the offense
by state law as a short-hand means of identifying conduct
deemed sufficiently ‘serious’ to trigger [the] mandatory pen
alty.” Id., at 9. According to respondent, “[t]he nature of
[a defendant’s] conduct, the elements of the offense, and the
impact of the crime . . . are the characteristics that typically
are used to gauge the ‘seriousness’ of an offense,” and a de
fendant’s “status as a recidivist has no connection to whether
the offense committed by the defendant was a ‘serious’ one.”
Id., at 11.
This argument rests on the erroneous proposition that a
defendant’s prior record of convictions has no bearing on the
seriousness of an offense. On the contrary, however, an of
fense committed by a repeat offender is often thought to re
flect greater culpability and thus to merit greater punish
ment. Similarly, a second or subsequent offense is often
regarded as more serious because it portends greater future
danger and therefore warrants an increased sentence for
purposes of deterrence and incapacitation. See Witte v.
United States, 515 U. S. 389, 403 (1995); Spencer v. Texas, 385
U. S. 554, 570 (1967) (Warren, C. J., dissenting in two judg
ments and concurring in one).
If respondent were correct that a defendant’s record of
prior convictions has no bearing on the seriousness of an
offense, then it would follow that any increased punishment
imposed under a recidivist provision would not be based on
the offense of conviction but on something else—presumably
the defendant’s prior crimes or the defendant’s “status as a
recidivist,” Brief for Respondent 11. But we have squarely
re jected this understanding of recidivism statutes. In
Nichols v. United States, 511 U. S. 738 (1994), we explained
that “ ‘[t]his Court consistently has sustained repeat-offender
laws as penalizing only the last offense committed by the
defendant.’ ” Id., at 747 (quoting Baldasar v. Illinois, 446

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U. S. 222, 232 (1980) (Powell, J., dissenting)). When a de
fendant is given a higher sentence under a recidivism stat
ute—or for that matter, when a sentencing judge, under a
guidelines regime or a discretionary sentencing system, in
creases a sentence based on the defendant’s criminal his
tory—100% of the punishment is for the offense of conviction.
None is for the prior convictions or the defendant’s “status
as a recidivist.” The sentence “is a stiffened penalty for the
latest crime, which is considered to be an aggravated offense
because [it is] a repetitive one.” Gryger v. Burke, 334 U. S.
728, 732 (1948).
B
Respondent argues that our interpretation of ACCA pro
duces “a sort of perverse bootstrapping” under which a de
fendant is “punished under federal law for being treated as
a recidivist under state law,” Brief for Respondent 20 (em
phasis deleted), but the fact that ACCA is itself a recidivist
statute bolsters our reading. Since ACCA is a recidivist
statute, Congress must have had such provisions in mind and
must have understood that the “maximum penalty pre
scribed by [state] law” in some cases would be increased by
state recidivism provisions.
Contrary to respondent’s suggestion, United States v. La-
Bonte, 520 U. S. 751 (1997), supports our interpretation of
ACCA. The statute at issue in LaBonte, a provision of the
Sentencing Reform Act of 1984, as amended, 28 U. S. C.
§ 994(h), directed the United States Sentencing Commission
to “assure” that the Sentencing Guidelines specify a prison
sentence “at or near the maximum term authorized for cate
gories of ” adult offenders who commit their third felony
drug offense or violent crime. We held that the phrase
“maximum term authorized” “refers to all applicable stat
utes,” including recidivist enhancements. 520 U. S., at 758,
n. 4.
Respondent claims that LaBonte supports his position be
cause ACCA, unlike 28 U. S. C. § 994(h), does not refer to

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“categories of ” offenders. Respondent suggests that Con
gress’ failure to include such language in ACCA means that
Congress intended to refer to a “maximum term” that does
not depend on whether a defendant falls into the first-time
offender or recidivist “category.” Respondent does not ex
plain how 18 U. S. C. § 924(e)(2)(A) could have easily been
reworded to mirror 28 U. S. C. § 994(h). But in any event,
the language used in ACCA, for the reasons explained above,
is more than clear enough.
Respondent argues that the Ninth Circuit’s decision is sup
ported by the so-called “categorical” approach that we used
in Taylor v. United States, 495 U. S. 575 (1990), in determin
ing which offenses qualify as “violent felon[ies]” under 18
U. S. C. § 924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii) provides
that four enumerated crimes—burglary, arson, extortion,
and offenses involving the use of explosives—are “violent fel
on[ies]” for ACCA purposes. In Taylor, we held that Con
gress intended for these crimes to have a “uniform defini
tion” that was “independent of the labels employed by the
various States’ criminal codes.” 495 U. S., at 592. Accord
ing to respondent, “[t]he categorical approach rests on the
congressional intent—reflected in the statutory language—
to focus the ACCA inquiry on the offense of conviction,
rather than on collateral matters unrelated to the definition
of the crime.” Brief for Respondent 12.
We see no connection, however, between the issue in Tay
lor (the meaning of the term “burglary” in § 924(e)(2)(B)(ii))
and the issue here (the meaning of the phrase “maximum
term of imprisonment . . . prescribed by law” under
§ 924(e)(2)(A)(ii)). Taylor held that the meaning of “bur
glary” for purposes of ACCA does not depend on the label
attached by the law of a particular State, 495 U. S., at 600–
601, but the “maximum penalty prescribed by law” for a
state offense necessarily depends on state law.
For a similar reason, we reject respondent’s argument
that, under our interpretation, offenses that are not really

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serious will be included as “serious drug offense[s]” because
of recidivist enhancements. In § 924(e)(2)(A)(ii), Congress
chose to rely on the “maximum term of imprisonment . . .
prescribed” by state law as the measure of the serious
ness of state offenses involving the manufacture, distribu
tion, or possession of illegal drugs. Congress presumably
thought—not without reason—that if state lawmakers pro
vide that a crime is punishable by 10 years’ imprisonment,
the lawmakers must regard the crime as “serious,” and Con
gress chose to defer to the state lawmakers’ judgment.
Therefore, our interpretation poses no risk that a drug
trafficking offense will be treated as “serious” without sat
isfying the standard that Congress prescribed.2
C
Respondent argues that it will often be difficult to deter
mine whether a defendant faced the possibility of a recidivist
enhancement in connection with a past state drug conviction
and that therefore our interpretation of ACCA will require
the federal courts to “engage in difficult inquiries regarding
novel questions of state law and complex factual determina
tions about long-past proceedings in state courts.” Brief for
Respondent 21. Respondent greatly exaggerates the prob
lems to which he refers.
2 In any event, the only “minor drug crime” that respondent identi
fies as potentially constituting an ACCA predicate based on recidivist
enhancement is distribution of a 21 U. S. C. § 812, Schedule III narcotic
in violation of Mich. Comp. Laws Ann. § 333.7401(2)(b)(ii) (West Supp.
2007). Given that Schedule III substances include anabolic steroids and
painkillers with specified amounts of certain narcotics like opium, see 21
U. S. C. § 812, one might debate respondent’s assertion that distribution of
these narcotics is not “serious” in the generic sense of the word. How
ever, Congress chose to defer to the Michigan Legislature’s judgment that
the offense was “serious” enough to warrant punishment of first offenses
by up to seven years’ imprisonment, and certain repeat offenses by
a maximum term of life imprisonment. See Mich. Comp. Laws Ann.
§§ 333.7401(2)(b)(ii), 333.769.12(1).

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First, in some cases, a defendant will have received a re
cidivist enhancement, and this will necessarily be evident
from the length of the sentence imposed. Second, as the
present case illustrates, see App. 16, 42, 93, the judgment of
conviction will sometimes list the maximum possible sen
tence even where the sentence that was imposed did not
exceed the top sentence allowed without any recidivist
enhancement. Third, as respondent himself notes, some
jurisdictions require that the prosecution submit a formal
charging document in order to obtain a recidivist enhance
ment. See Brief for Respondent 33. Such documents fall
within the limited list of generally available documents that
courts already consult for the purpose of determining if a
past conviction qualifies as an ACCA predicate. See Shep
ard v. United States, 544 U. S. 13, 20 (2005). Fourth, in
those cases in which the defendant pleaded guilty to the
state drug charges, the plea colloquy will very often include
a statement by the trial judge regarding the maximum pen
alty. This is mandated by Federal Rule of Criminal Proce
dure 11(b)(1)(H), and many States have similar require
ments.3 Finally, in those cases in which the records that
may properly be consulted do not show that the defendant
faced the possibility of a recidivist enhancement, it may well
be that the Government will be precluded from establishing
that a conviction was for a qualifying offense. The mere
possibility that some future cases might present difficulties
cannot justify a reading of ACCA that disregards the clear
meaning of the statutory language.
3 See, e. g., Kan. Stat. Ann. § 22–3210(a)(2) (2007); N. C. Gen. Stat. Ann.
§ 15A–1022(a)(6) (Lexis 2007); Tex. Code Crim. Proc. Ann., Art. 26.13(a)(1),
(d) (Vernon Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(1)(ii) (Lexis 2007);
Fla. Rules Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga. Uniform Super. Ct.
Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule 402(a)(2) (West 2007); Pa.
Rule Crim. Proc. 590, comment (West 2008); Ohio Rule Crim. Proc.
11(C)(2)(a) (West 2008); Mich. Rule Crim. Proc. 6.302(B)(2) (West 2007);
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992); Bunnell v. Superior
Court, 13 Cal. 3d 592, 604–605, 531 P. 2d 1086, 1094 (1975).

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390 UNITED STATES v. RODRIQUEZ
Opinion of the Court
D
Respondent’s last argument is that if recidivist enhance
ments can increase the “maximum term” of imprisonment
under ACCA, it must follow that mandatory guidelines sys
tems that cap sentences can decrease the “maximum term”
of imprisonment. Brief for Respondent 38. In each situa
tion, respondent argues, the “maximum term” of imprison
ment is the term to which the state court could actually have
sentenced the defendant. Respondent concedes that he has
waived this argument with respect to his own specific state
court convictions. See Brief in Opposition 15, n. 7. He ar
gues, however, that Congress cannot have wanted to make
the “maximum term” of imprisonment for ACCA purposes
dependent on the complexities of state sentencing guidelines.
We conclude, however, that the phrase “maximum term of
imprisonment . . . prescribed by law” for the “offense” was
not meant to apply to the top sentence in a guidelines range.
First, the top sentence in a guidelines range is generally
not really the “maximum term . . . prescribed by law” for
the “offense” because guidelines systems typically allow a
sentencing judge to impose a sentence that exceeds the top
of the guidelines range under appropriate circumstances.
The United States Sentencing Guidelines, for example, per
mit “upward departures,” see United States Sentencing
Commission, Guidelines Manual § 5K2.0 (Nov. 2007), and es
sentially the same characteristic was shared by all of the
mandatory guidelines systems in existence at the time of the
enactment of the ACCA provision at issue in this case.4
4 By 1986, when Congress added the relevant statutory language, see
Pub. L. 99–570, § 1402, 100 Stat. 3207–39, eight States had guidelines sys
tems in effect. See Frase, State Sentencing Guidelines: Diversity, Con
sensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190, 1196, Table
1 (2005). Two of those States (Utah and Maryland) had voluntary guide
lines, id., at 1198, and the other six States had guidelines systems that
allowed for sentences in excess of the recommended range in various cir

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391 Cite as: 553 U. S. 377 (2008)
Opinion of the Court
(Following this pattern, Washington law likewise provided
at the time of respondent’s state convictions that a sentenc
ing judge could “impose a sentence outside the standard sen
tence range” upon a finding “that there [were] substantial
and compelling reasons justifying an exceptional sentence.”
Wash. Rev. Code § 9.94A.120(2) (1994).5)
Second, the concept of the “maximum” term of imprison
ment or sentence prescribed by law was used in many stat
utes that predated the enactment of ACCA and the federal
Sentencing Reform Act of 1984, Pub. L. 98–473, § 211, 98
Stat. 1987, and in all those statutes the concept necessarily
referred to the maximum term prescribed by the relevant
criminal statute, not the top of a sentencing guidelines range.
See, e. g., 18 U. S. C. § 3 (1982 ed.) (“[A]n accessory after the
fact shall be imprisoned not more than one-half the maxi
mum term of imprisonment . . . for the punishment of the
principal”); § 3575(b) (allowing for an increased sentence for
dangerous special offenders “not disproportionate in severity
to the maximum term otherwise authorized by law for” the
underlying felony); see also § 371 (the punishment for con
spiracy to commit a misdemeanor “shall not exceed the maxi
mum punishment provided for such misdemeanor”); § 3651
(allowing for confinement and suspension of sentence upon
conviction of an offense not punishable by death or life im
prisonment “if the maximum sentence for such offense is
cumstances, see People v. Miles, 156 Mich. App. 431, 437, 402 N. W. 2d 34,
37 (1986) (remanding for the trial court to state reasons for upward depar
ture); Staats v. State, 717 P. 2d 413, 422 (Alaska App. 1986) (affirming
upward departure); State v. Armstrong, 106 Wash. 2d 547, 549–550, 723
P. 2d 1111, 1113–1114 (1986) (en banc) (same); State v. Mortland, 395 N. W.
2d 469, 474 (Minn. App. 1986) (same); Walker v. State, 496 So. 2d 220 (Fla.
App. 1986) (per curiam) (same); Commonwealth v. Mills, 344 Pa. Super.
200, 204, 496 A. 2d 752, 754 (1985) (same).
5 While Washington law provided a list of “illustrative factors which the
court [could] consider in the exercise of its discretion to impose an excep
tional sentence,” the list was “not intended to be exclusive” of other poten
tial reasons for departing. § 9.94A.390.

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392 UNITED STATES v. RODRIQUEZ
Opinion of the Court
more than six months”); § 3653 (referring to the “maximum
probation period”).
It is instructive that, even in the Sentencing Reform Act,
the concept of the “maximum term of imprisonment” pre
scribed for an offense was used in this sense. See § 212, 98
Stat. 1991–1992 (new 18 U. S. C. § 3559 classifying offenses
based on “the maximum term of imprisonment authorized . . .
by the statute describing the offense”); § 235(b)(1)(F), 98
Stat. 2032 (“The maximum term of imprisonment in effect on
the effective date [of the Sentencing Reform Act]” remains in
effect for five years after the effective date “for an offense
committed before the effective date”); § 1003(a), id., at 2138
(solicitation to commit a crime of violence punishable by
“one-half the maximum term of imprisonment . . . prescribed
for the punishment of the crime solicited”). In light of this
established pattern and the relative newness of sentencing
guidelines systems when the ACCA provision at issue here
was added, we conclude that Congress meant for the concept
of the “maximum term of imprisonment” prescribed by law
for an “offense” to have the same meaning in ACCA.
Our decision in United States v. R. L. C., 503 U. S. 291
(1992), is not to the contrary. The statutory provision there,
18 U. S. C. § 5037(c) (2000 ed.), set out the term of official
detention for a juvenile found to be a delinquent. This pro
vision was amended by the Sentencing Reform Act, see § 214,
98 Stat. 2013, and then amended again two years later, see
§§ 21(a)(2)–(4), 100 Stat. 3596. As thus amended, the provi
sion did not refer to the “maximum term of imprisonment”
prescribed for an “offense.” Rather, the provision focused
on the particular juvenile being sentenced. It provided
that, “ ‘in the case of a juvenile who is less than eighteen
years old,’ ” official detention could not extend beyond the
earlier of two dates: the juvenile’s 21st birthday or “ ‘the
maximum term of imprisonment that would be authorized if
the juvenile had been tried and convicted as an adult.’ ”
United States v. R. L. C., supra, at 295–296, n. 1 (quoting 18

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Souter, J., dissenting
U. S. C. § 5037(c)). Because this provision clearly focuses on
the circumstances of the particular juvenile and not on the
offense, 503 U. S., at 299, it is not analogous to the ACCA
provision that is before us in this case.
* * *
For these reasons, we hold that the “maximum term of
imprisonment . . . prescribed by law” for the state drug con
victions at issue in this case was the 10-year maximum set
by the applicable recidivist provision. Accordingly, we re
verse the judgment of the Court of Appeals and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and Jus
tice Ginsburg join, dissenting.
The Court chooses one reading of the Armed Career Crim
inal Act (ACCA), 18 U. S. C. § 924(e) (2000 ed. and Supp. V),
over another that would make at least as much sense of the
statute’s ambiguous text and would follow the counsel of a
tradition of lenity in construing perplexing criminal laws.
The Court’s choice, moreover, promises hard times for the
trial courts that will have to make the complex sentencing
calculations this decision demands. I respectfully dissent.
I
The ACCA mandates a 15-year minimum sentence for any
one convicted of violating § 922(g) (2000 ed.) who “has three
previous convictions [for] a serious drug offense” among
his prior crimes. § 924(e)(1) (2000 ed., Supp. V). Section
924(e)(2)(A) (2000 ed.) defines “serious drug offense” as an
offense under state or federal drug laws, “for which a maxi
mum term of imprisonment of ten years or more is pre
scribed by law.” This limitation leaves open the question
whether a given conviction qualifies as “serious” by refer

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394 UNITED STATES v. RODRIQUEZ
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ence to the penalty for the acts making up the basic offense,
regardless of who commits it, or whether account must also
be taken of further facts (such as an offender’s criminal rec
ord that qualified him for an enhanced penalty at the time of
that earlier conviction). If the first alternative is the read
ing Congress intended, a sentencing judge needs to look only
to the penalty specified for the basic offense committed by a
first-time offender. But if the second is the intended one, a
judge may have to consider sentencing variations (for using
a gun, say, or for repeating the offense) set out in other
provisions.
It all turns on the meaning of the word “offense,” to which
the “maximum term” is tied. One can naturally read “an
offense” at a general level as synonymous with “a crime,”
which would tend to rule out reference to maximums ad
justed for other facts; we do not usually speak of a crime of
“burglary while having a criminal record and while out on
bail.” Those details would come up only if we were speak
ing about a specific instance, described as a burglary “com
mitted by someone with a record while out on bail,” in which
case the other facts may “enhance” his sentence beyond what
would have been the maximum term for burglary. The
trouble is that “offense” could easily refer to a specific occur
rence, too; looking at it that way would make it less jarring
to suggest that the circumstances around an event that au
thorize higher penalty ranges (such as the use of a gun) or
the defendant’s history (like a prior conviction) ought to
count in identifying the maximum penalty for the offense
committed on the given day, at the given place, by the partic
ular offender, in a given way. Either reading seems to offer
a plausible take on the “offense” for which the ACCA court
will have to identify or calculate “maximum” penalties,
under state law.
We get no help from imagining the circumstances in which
a sentencing court would ask which reading to adopt. The
choice of answer would be easy if the question arose in the

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mind of a lawyer whose client is thinking about a guilty plea
and asks what maximum term he faces. See ante, at 383.
His lawyer knows that he means the maximum term for him
in his case. When a repeat offender wants to know, counsel
understands that the penalty prescribed for the basic crime
without the recidivist add-on is not the baseline for compari
son that may make or break the potential plea agreement.
And if the repeat offender faces a further statutory enhance
ment for carrying a gun during the offense, or for being out
on bail, his lawyer would not tell him the maximum term for
repeat offenders without guns or bail restrictions. By the
same token, if the offender faced (as Rodriquez did) a lower
sentence ceiling than what the statute says, by grace of man
datory sentencing guidelines, his lawyer would know enough
to tell him that his maximum was capped in this way.
When the issue comes up not in a particular client’s ques
tions about his own prospects, however, but in a trial judge’s
mind wondering about the meaning of the general statute,
context gives no ready answer. Nor does it break the tie to
say, as the Court does, that taking “maximum” to refer to
the basic offense would mean that a recidivist with add-ons
could be sentenced above the ACCA “maximum,” see ante,
at 383 (“[E]ven if respondent had been sentenced to, say, six
years’ imprisonment, ‘the maximum term of imprisonment’
prescribed by law still would have been five years”). That
description, after all, might be just a verbal quirk showing
the statutory design in proper working order: if Congress
meant an offense to be viewed generically and apart from
offender characteristics, a gap between the maximum for
ACCA purposes, and a heavier, actual sentence accounting
for a defendant’s history is to be expected.1
1 Indeed, if today’s decision is read to mean that enhancements only for
recidivism need to be counted, then it too permits a defendant’s actual
sentence for a predicate conviction to be higher than what a federal court
identifies as an offense’s “maximum term” for ACCA purposes: actual sen
tences can outstrip the maximum term for recidivists if nonrecidivism fac

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The text does not point to any likelier interpretive choices,
and as between these alternatives, it is simply ambiguous.2
Because I do not believe its ambiguity is fairly resolved in
the Government’s favor, I would affirm.
II
A
None of the Court’s three principal points or ripostes
solves the puzzle. To begin with, there is something arbi
trary about trying to resolve the ambiguity by rejecting the
maximum-for-basic-offense option while declining to consider
an entire class of offender-based sentencing adjustments. If
offender characteristics are going to count in identifying the
relevant maximum penalty, it would seem to follow that in
jurisdictions with mandatory sentencing guidelines, the max
imum “prescribed by law” would be what the guidelines de
tors such as weapons enhancements can also raise a given defendant’s
statutory ceiling. The Government seems to accept this possibility, not
ing that “if a statute is as a formal matter structured in such a way as to
create broad tiers of punishment for categories of offenders” based on
factors other than recidivism, “then certainly that would seem to be an
alternative maximum term of imprisonment.” Tr. of Oral Arg. 21. The
Court, however, does not address this prospect, despite having seen the
same kind of result as a dealbreaker for Rodriquez’s view.
2 Even adopting the “alternative” of accounting for an offender’s circum
stances and record does not resolve the ambiguity, for this rubric actually
comprises multiple possibilities under its generic umbrella. Most simply,
it might be thought to refer to the actual offender’s sentencing range as
applied by the state court. At the other extreme, it might mean the maxi
mum for a purely hypothetical “worst” offender who incurs all possible
add-ons. Or perhaps it means a fictional version of the actual offender,
say, one qualifying for some statutory add-ons but not for any guidelines
rules (as the Court would have it); or maybe one who qualifies for both
the statutory and the guidelines departures for which the actual offender
was eligible, even though not all of those departures were applied by
the state court. This menagerie of options would be multiplied, if a
court directly confronted the choice whether to count enhancements for
offender-based factors other than recidivism, and if so, which.

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termine. The original Federal Guidelines, and the manda
tory state guidelines I am aware of, were established under
statutory authority that invests a guideline with the same
legal status as a customary penalty provision. Cf. United
States v. R. L. C., 503 U. S. 291, 297 (1992) (“The answer to
any suggestion that the statutory character of a specific pen
alty provision gives it primacy over administrative sentenc
ing guidelines is that the mandate to apply the Guidelines is
itself statutory”).
The Court tries to deflect the implication of its position by
denying that state sentencing guidelines really do set maxi
mum penalties, since typically they allow a judge to depart
from them, up or down, when specified conditions are met.
See ante, at 390–391. But while this is true, the objection
stands. However a particular mandatory guideline scheme
works, it sets a maximum somewhere; if it includes condi
tions affecting what would otherwise be a guideline maxi
mum, the top of the range as affected should be the relevant
maximum on the Court’s reading of the statute. Indeed, the
factual conditions involved are usually offender characteris
tics, and if the ACCA is going to count them under offense
defining statutes or freestanding recidivism laws, those same
facts ought to count under a guideline rule (whether setting,
or authorizing a departure from, a particular limit). There
is no practical difference whether maximums are adjusted by
a statute, a statutorily mandated guideline, or a guideline
specified departure; wherever a “prescri[ption] by law” re
sides, it ought to be honored by the ACCA court.
If we were to follow the Court’s lights, then, I think we
would have to accept the complication that guidelines
schemes present, and face the difficulty of calculating en
hanced maximums in guidelines jurisdictions.3 What we
cannot do is resolve statutory ambiguity by looking to the
3 In this case, doing so would likely result in affirmance, because as the
Government admits, Rodriquez’s guidelines ceiling was just shy of five
years. Brief for United States 28.

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sentencing range for an imaginary offender who meets statu
tory conditions for altering the basic sentence, but is artifi
cially stripped of any characteristic that triggers a guideline
rule also “prescribed by law.”
B
The more fundamental objection, though, goes to the
Court’s basic conclusion that it makes the better sense to
read the ACCA as resting the federal treatment of recidi
vists on the maximum sentence authorized by state recidivist
schemes, in cases where state law must be considered. The
Court says it would have been natural for Congress to think
in terms of state judgments about repeat criminals when
thinking about what to do at the national level, and the Court
is quite possibly right about this; the fact that the federal
penalty may turn on a state felony classification at all shows
that Congress was thinking about state law. But the
chances are at least equally good that the Court is wrong; it
is odd to think that Congress would have piggybacked the
federal system on state repeat-offender schemes, given the
extraordinary and irreconcilable variations among state poli
cies on the subject.
For one thing, the States’ recidivism schemes vary in their
methods for augmenting sentences. Iowa’s law, for exam
ple, subjects repeat drug offenders to triple penalties, Iowa
Code § 124.411(1) (2005); but in Wisconsin a repeat drug dis
tributor will see his maximum term increased by a fixed
number of years, whatever the starting point, see, e. g., Wis.
Stat. § 961.48(1)(b) (2003–2004) (4-year increase for Class H
felony such as selling one kilogram of marijuana).
More striking than differing structures, though, are the
vast disparities in severity from State to State: under Massa
chusetts drug laws, a third conviction for selling a small
amount of marijuana carries a maximum of 2.5 years. Mass.
Gen. Laws, ch. 94C, § 32C(b) (West 2006). In Delaware, a
third conviction means a mandatory sentence of life in prison

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without parole. See Del. Code Ann., Tit. 11, § 4214(b) (2007)
(third-felony penalty of life without parole for violations of
nonnarcotic controlled substances law, Tit. 16, § 4752 (2003)).
That Congress might have chosen to defer to state-law judg
ments about “seriousness” that vary so widely for the same
conduct is at least open to doubt. And that doubt only gets
worse when we notice that even where two States have simi
lar maximum penalties for a base-level offense, their recidi
vist enhancements may lead the same conduct to trigger the
ACCA sanction in one State but not the other: on the Court’s
view, an offender’s second conviction for selling, say, just
over two pounds of marijuana will qualify as an ACCA predi
cate crime if the conviction occurred in Arizona (maximum
of 13 years), Iowa (15 years), Utah (15 years), and the Dis
trict of Columbia (10 years), for example; 4 but it will fall
short of the mark in California (8 years), Michigan (8 years),
and New York (8 years).5 Yet in each of these States, the
base-level offense has a maximum term falling within a much
narrower range (between 3.5 and 5.5 years).6 With this
backdrop of state law, the Government can hardly be heard
4 See Ariz. Rev. Stat. Ann. § 13–604(B) (West Supp. 2007) (maximum set
at 13 years); Iowa Code §§ 124.401(1)(d), 902.9(5), 124.411 (2005) (basic
offense maximum is tripled to 15 years); Utah Code Ann. §§ 58–37–
8(1)(b)(ii) (Lexis 2007 Supp. Pamphlet), 76–3–203(2) (Lexis 2003) (15
years); D. C. Code §§ 48–904.01(a)(2)(B) (2007 Supp. Pamphlet), 48–
904.08(a) (2001) (basic-offense maximum is doubled to 10 years).
5 See Cal. Health & Safety Code Ann. § 11360 (West 2007); Cal. Penal
Code Ann. § 1170.12(c)(1) (West 2004) (basic-offense maximum is doubled
to 8 years); Mich. Comp. Laws Ann. §§ 333.7401(2)(d)(iii) (West Supp.
2008), 333.7413(2) (2001) (basic-offense maximum is doubled to 8 years);
N. Y. Penal Law Ann. §§ 221.55 (West 2001), 70.70(3)(b)(ii) (West Supp.
2008) (maximum set at 8 years).
6 See Ariz. Rev. Stat. Ann. §§ 13–3405(B)(5), 13–701(C) (West 2001) (max
imum set at 3.5 years); Cal. Health & Safety Code Ann. § 11360 (4 years);
D. C. Code § 48–904.01(a)(2)(B) (5 years); Iowa Code §§ 124.401(1)(d),
902.9(5) (5 years); Mich. Comp. Laws Ann. § 333.7401(2)(d)(iii) (4 years);
N. Y. Penal Law Ann. §§ 221.55, 70.70(2)(a)(ii) (5.5 years); Utah Code Ann.
§§ 58–37–8(1)(b)(ii), 76–3–203(3) (5 years).

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to say that there would be something “incongruous” about a
federal law targeting offenses flagged by the penalties as
signed only to bare conduct, without regard to recidivism or
other offender facts. Brief for United States 17.
Nor does it show what the ACCA means by “maximum”
or “offense” when the Court points to language from our
prior cases saying that enhanced recidivist penalties are not
to be viewed as retroactive punishment for past crimes, for
purposes of double-jeopardy and right-to-counsel enquiries.
See ante, at 385–386 (citing Nichols v. United States, 511
U. S. 738, 747 (1994), and Gryger v. Burke, 334 U. S. 728, 732
(1948)). The quotations show that a separate offense is
identified by an enhanced penalty, the Court says, because
from them we can draw the conclusion that “[w]hen a defend
ant is given a higher sentence under a recidivism statute,”
nonetheless “100% of the punishment is for the offense of
conviction,” leaving nothing to be attributed to “prior convic
tions or the defendant’s ‘status as a recidivist,’ ” ante, at 386.
Still, the fact is that state-law maximums for repeat of
fenders sometimes bear hardly any relation to the gravity of
the triggering offense, as “three-strikes” laws (not to men
tion the Delaware example, above) often show. See, e. g., Ill.
Comp. Stat., ch. 720, § 5/33B–1 (2004) (mandatory life sen
tence for third “Class X” felony, such as dealing heroin, with
out regard to the specific penalty gradation for the latest
Class X felony or to any similarity with prior offenses);
W. Va. Code Ann. § 61–11–18(c) (2005) (if offender was “twice
before convicted in the United States of a crime punishable
by confinement in a penitentiary,” third such conviction in
curs a mandatory life sentence). Cf. Ewing v. California,
538 U. S. 11, 30, n. 2 (2003) (plurality opinion) (the “California
Legislature therefore made a deliberate policy decision . . .
that the gravity of the new felony should not be a determina
tive factor in triggering the application of the Three Strikes
Law” (internal quotation marks omitted)). And there is no

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denying that the fact of prior convictions (or a defendant’s
recidivist status) is necessary for the “ ‘stiffened penalty’ ” to
be imposed for “ ‘the latest crime,’ ” ante, at 386, the neces
sary fact being specific to the offender, and falling outside
the definition of the offense. This is, after all, what it means
to apply an “enhancement.”
The upshot is that it may have been natural for Congress
to think of state recidivism schemes, but it may well not have
been. If there is anything strange about ignoring enhanced
penalties, there is something at least as strange about a fed
eral recidivist statute that piles enhancement on enhance
ment, magnifying the severity of state laws severe to begin
with.
C
Whatever may be the plausibility of the offender-based
reading of the statute as the Court describes it, the Court’s
description avoids a source of serious doubt by glossing over
the practical problems its take on the statute portends. The
Court is unmoved by the argument that Congress probably
did not expect federal courts applying the ACCA to master
the countless complications of state sentencing schemes; be
cause all jurisdictions provide for enhanced sentencing some
way or another, the Court thinks there is nothing threaten
ing in the subject, which it tries to simplify by offering a few
practical pointers. It notes that there will be cases with
a qualifying enhancement “evident from the length of the
sentence imposed” by the state court; sometimes, it says, a
court’s “judgment of conviction will . . . list the maximum
possible sentence”; or the state prosecutor will have “submit
[ted] a formal charging document in order to obtain a recidi
vist enhancement.” Ante, at 389. And in cases involving
pleas, the Court notes, “the plea colloquy will very often
include a statement by the trial judge regarding the maxi
mum penalty.” Ibid. Even when there are no pointers to
help, says the Court, and “the records that may properly be

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consulted” yield no clear answer, the worst that can happen
will be the Government’s inability to show that a prior con
viction qualifies. Ante, at 389.
But it is not that easy, and the Court’s pointers are not
much comfort. To start with, even where a “maximum” sen
tence is mentioned in state records, how will the ACCA
court be supposed to know that the “maximum” written
down there is what the Court today holds that “maximum”
means? A State’s number below 10 years may refer to the
base-level offense, or it may be the reduced maximum re
quired by mandatory guidelines; and a number over 10 years
may be the product of other enhancements (as for weapons
use or being out on bail at the time of commission). Having
to enquire into just what imposed sentences or what trial
documents really mean would seem to leave plenty of sorting
out for the federal courts to do (or at least, for federal prose
cutors, if they end up with the job).
Another example: state laws are not written to coordinate
with the ACCA, and if a State’s specific repeat drug-offender
provisions, say, are supposed to be read together with its
general habitual-offender statutes, the resulting “maximum”
may not be the Court’s “maximum.” Indeed, a federal court
may have to figure out just how those state statutes may be
read together to avoid conflict between them, when the way
to avoid conflict is not clear cut even for the state courts,
see, e. g., Goldberg v. State, 282 Ga. 542, 651 S. E. 2d 667
(2007) (general recidivist statute trumps more specific one;
overruling same court’s decision in Mikell v. State, 270 Ga.
467, 510 S. E. 2d 523 (1999)); State v. Keith, 102 N. M. 462, 697
P. 2d 145 (App. 1985) (specific trumps general). Cf. Clines v.
State, 912 So. 2d 550 (Fla. 2005) (relying on rule of lenity
to resolve whether multiple recidivist categories in same
habitual-offender law could apply to a single sentence).
And there is more: as Rodriquez reminds us, just deciding
what counts as a “prior” offense under state law is not al
ways an easy thing. See People v. Wiley, 9 Cal. 4th 580,

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583, 889 P. 2d 541, 542 (1995) (noting difficulty of applying
requirement that “prior” charges have been “brought and
tried separately,” where defendant had been convicted in
trials occurring one day apart and sentenced at the same
court session; in the end, drawing the needed inference from
docket numbers revealed on documents requested from the
municipal trial court); id., at 595, 889 P. 2d, at 550 (Werdegar,
J., dissenting) (protesting the court’s solicitation and use of
extrarecord documents). Nor would that sort of enquiry get
any easier, or be more likely to benefit from well-settled
state law, when a given State’s law takes account of prior
offenses in other States, see Timothy v. State, 90 P. 3d 177
(Alaska App. 2004) (holding Oklahoma burglary not to be
analogous to one in Alaska, for purposes of Alaska’s recidi
vism enhancements, thus overruling its own 2-year-old deci
sion, Butts v. State, 53 P. 3d 609 (2002)); or, to take a specific
example, when what qualifies a prior offense under one
State’s recidivism scheme is the length of the sentence au
thorized by another State’s law (raising the question whether
that first State would see recidivist enhancements the same
way the Court does today). See, e. g., N. J. Stat. Ann.
§ 2C:44–4(c) (West 2005) (“A conviction in another jurisdic
tion shall constitute a prior conviction of a crime if a sen
tence of imprisonment in excess of 6 months was authorized
under the law of the other jurisdiction”); N. M. Stat. Ann.
§ 31–18–17(D)(2)(b) (2007 Supp.) (defining “prior felony con
viction” as, inter alia, a felony “punishable [by] a maximum
term of imprisonment of more than one year”).
A still thornier problem is how federal courts are supposed
to treat a State’s procedural safeguards for using prior con
victions at sentencing. Saying that congressional deference
to the States’ judgments about the severity of crimes also
extends to their judgments about recidivism raises, but does
not answer, the question whether such deference goes only
as far as the state courts themselves could go in raising
penalties. (The Court’s disregard of mandatory sentencing

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guidelines would seem to suggest that the answer is no.) In
those States that require notice before the prosecutor can
seek a recidivism enhancement, for example, how will a fed
eral court decide whether the ACCA counts a prior convic
tion that would have qualified for recidivism enhancement if
the state prosecutor had not failed to give timely notice?
See, e. g., Commonwealth v. Fernandes, 430 Mass. 517, 522,
722 N. E. 2d 406, 409 (1999) (noting longstanding rule that
the indictment must give notice of prior convictions “that
may subject the defendant to enhanced punishment”).
I could go on, but this is enough to show that the Court’s
interpretation promises that ACCA courts will face highly
complicated enquiries into every State’s or Territory’s collec
tion of ancillary sentencing laws. That is an unconvincing
answer to the ambiguity.
III
At the end of the day, a plainly superior reading may well
be elusive; one favoring the Government certainly is. It
does not defy common English or common sense, after all, to
look at a statute with one penalty range for the basic crime
and a higher one for a repeat offender and say that the for
mer sets the maximum penalty for the “offense”; but neither
is it foolish to see the “offense” as defined by its penalty,
however that is computed. What I have said so far suggests
that I think the basic-crime view of “offense” is the better
one, but I will concede that the competing positions are
pretty close to evenly matched. And on that assumption,
there is a ready tiebreaker.
The interpretation adopted by both the District Court and
the Court of Appeals is the one counseled by the rule of
lenity, which applies where (as here) we have “ ‘seiz[ed] every
thing from which aid can be derived,’ ” but are “left with an
ambiguous statute,” United States v. Bass, 404 U. S. 336, 347
(1971) (quoting United States v. Fisher, 2 Cranch 358, 386
(1805) (opinion for the Court by Marshall, C. J.)). The rule is
grounded in “ ‘the instinctive distaste against men languish

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ing in prison unless the lawmaker has clearly said they
should,’ ” Bass, supra, at 348 (quoting H. Friendly, Bench
marks 209 (1967)), and we have used it to resolve questions
both about metes and bounds of criminal conduct and about
the severity of sentencing, see Bifulco v. United States, 447
U. S. 381, 387 (1980) (collecting cases). “This policy of lenity
means that the Court will not interpret a federal criminal
statute so as to increase the penalty that it places on an
individual when such an interpretation can be based on no
more than a guess as to what Congress intended.” Ladner
v. United States, 358 U. S. 169, 178 (1958).
This is why lenity should control here. Even recognizing
the best that can be said for the Government’s side, its posi
tion rests on debatable guesswork to send a man to prison
for 180 months, as against 92 months on the basic-crime view.
And the District Courts will be imposing higher sentences
more than doubling the length of the alternative in a good
many other cases, as well.
The “fair warning” that motivates the lenity rule, Mc-
Boyle v. United States, 283 U. S. 25, 27 (1931) (opinion for the
Court by Holmes, J.), may sometimes be a benign fiction, see
R. L. C., 503 U. S., at 309 (Scalia, J., concurring in part and
concurring in judgment), but there is only one reading of this
statute with any realistic chance of giving fair notice of how
the ACCA will apply, and that is the reading the District
Court and the Court of Appeals each chose. Their choice
should be ours, too.