jones argued october decided march petitioner charged inter alia carjacking violation time provided relevant person possessing firearm takes motor vehicle person presence another force violence intimidation shall imprisoned years serious bodily injury results imprisoned years death results imprisoned number years life indictment made reference numbered subsections charged none facts mentioned latter two petitioner told arraignment faced maximum sentence carjacking jury instructions trial defined offense reference solely found guilty however district imposed sentence carjacking charge one victim suffered serious bodily injury rejected petitioner objection serious bodily injury element offense neither pleaded indictment proven jury affirming ninth circuit agreed set sentencing factor element independent offense held section establishes three separate offenses specification elements must charged indictment proven beyond reasonable doubt submitted jury verdict pp superficial impression subsections sentencing provisions loses clarity one looks subsections provide steeply higher penalties condition facts injury death seem quite important elements principal paragraph force violence intimidation government stresses numbered subsections stand alone defining offenses whose elements set statute opening paragraph integrated structure suggests statute establishes single offense government also argues numbered subsections come word shall often divides provisions specify sentences number countervailing structural considerations however weaken points first shorter subsection stand alone neither voluminous first paragraph merely describe obnoxious behavior never actually telling reader crime numbered subsections complete thought second shall invariably separate clauses sentencing provisions section text alone justify confident inference statutory drafting however occurs backdrop merely structural conventions varying significance traditional treatment certain categories important facts like degree injury victims relation particular crimes statute unclear whether treats fact element penalty aggravator makes sense look statutes done since congress unlikely intend radical departures past practice without making point saying see search comparable examples suggests congress separate aggravated offenses mind employed numbered subsections unmistakably identified serious bodily injury related facts violence offense element several federal statutes including two three robbery statutes modeled carjacking statute conclusion bolstered practice treating serious bodily injury element defining distinct offense aggravated robbery neither amendment statute statute legislative history supports government reading pp government construction statute raise serious constitutional question fifth amendment due process clause sixth amendment notice jury trial guarantees jury determination waived may judicial factfinding preponderance support application provision increases potential severity penalty variant given crime although question recognized series cases past quarter century see mullaney wilbur resolved cases see supra doubt issue statutory construction thus resolved favor avoiding question rule statute susceptible two constructions one grave doubtful constitutional questions arise questions avoided duty adopt latter ex rel attorney general delaware hudson pp reversed remanded souter delivered opinion stevens scalia thomas ginsburg joined stevens scalia filed concurring opinions kennedy filed dissenting opinion rehnquist breyer joined nathaniel jones petitioner writ certiorari appeals ninth circuit march justice souter delivered opinion case turns whether federal carjacking statute petitioner charged defined three distinct offenses single crime choice three maximum penalties two dependent sentencing factors exempt requirements charge jury verdict think better reading three distinct offenses particularly light rule interpretive uncertainty resolved avoid serious questions statute constitutionality december petitioner nathaniel jones two others oliver mcmillan held two men mutanna mardaie jones mcmillan went victims pockets oliver stuck gun mutanna left ear later struck head oliver mcmillan made getaway cadillac jones driven scene jones forced mardaie mutanna honda drove stopping put mardaie jones sped away stolen car subject police pursuit ended jones crashed telephone pole oliver tr july grand jury eastern district california indicted jones two accomplices two counts using aiding abetting use firearm relation crime violence violation carjacking aiding abetting carjacking violation read follows whoever possessing firearm defined section title takes motor vehicle transported shipped received interstate foreign commerce person presence another force violence intimidation attempts shall fined title imprisoned years serious bodily injury defined section title results fined title imprisoned years death results fined title imprisoned number years life supp indictment made reference statute numbered subsections charged none facts mentioned latter two arraignment magistrate judge told jones faced maximum sentence years carjacking charge app consistently advice district subsequent jury instructions defined elements subject government burden proof reference solely first paragraph mention serious bodily injury id jury found jones guilty counts case took new turn however arrival presentence report recommended petitioner sentenced years carjacking one victims suffered serious bodily injury report noted mutanna testified oliver gun caused profuse bleeding mutanna ear physician concluded mutanna suffered perforated eardrum numbness permanent hearing loss id jones objected recommendation bounds since serious bodily injury element offense defined part neither pleaded indictment proven jury app district saw matter differently based finding serious bodily injury allegation supported preponderance evidence imposed sentence carjacking count ibid together consecutive sentence firearm offense like trial appeals read setting element independent offense ninth circuit thus agreed eleventh see williams reasoning structure statute particularly grammatical dependence numbered subsections first paragraph demonstrated congress understanding subsections complete definitions separate crimes view subsections provided sentencing factors found additional support statute legislative history heading subtitle bill creating enhanced penalties auto theft took indicating statute numbered subsections merely defined sentencing enhancements id also noted several references committee reports floor debate bill enhanced penalties apparently single carjacking offense ibid features arguably distinguishing case granted certiorari reverse ii much turns determination fact element offense rather sentencing consideration given elements must charged indictment submitted jury proven government beyond reasonable doubt see hamling gaudin accordingly statutes come benefit provisions straightforwardly addressing distinction elements sentencing factors see mcmillan pennsylvania express identification statutory provision sentencing factor even without help however first glance look suggesting numbered subsections sentencing provisions begins principal paragraph listing series obvious elements possession firearm taking motor vehicle connection interstate commerce paragraph comes close standing followed sentencing provisions first subsection certainly adds element superficial impression loses clarity one looks penalty subsections provide steeply higher penalties condition facts injury death seem quite important elements principal paragraph force violence intimidation best questionable whether specification facts sufficient increase penalty range let alone years life meant carry none process safeguards elements offense bring defendant benefit look statute reliable guide congressional intentions government accordingly advances two subtle structural arguments position fact specified subsection merely sentencing factor like appeals government stresses statute numbered subsections stand alone defining offenses whose elements anyone reckoning set statute opening paragraph integrated structure said suggest statute establishes single offense point government argues numbered subsections come word shall often divides provisions specify sentences brief points sound enough far go far short dispositive even terms whereas weakened number countervailing structural considerations first petitioner notes reply brief petitioner shorter subsection stand alone neither section voluminous first paragraph isolation merely describe obnoxious behavior leaving reader assuming must crime never actually told numbered subsidiary provisions complete thought section thus unlike provisions federal criminal code genuinely stand grammatical feet thanks phrases shall unlawful see shall punished see shall guilty see supp ii draw provision close second significance word shall although frequently separates clauses sentencing provisions hardly invariably one robbery statutes served model see example places elements offense either side shall course supposedly elements side grammatically incomplete placement shall oddly equivocal indeed government courts appeals treat statute perhaps closely resembling one consumer tampering defining basic aggravated offenses one defined terms serious bodily injury see meling clues derived attention structure parsing wording like dissent holds distinguish carjacking act robbery statutes upon modeled state aggravated robbery statutes see post turn move us far effort infer congressional intent text alone justify confident inference statutory drafting occurs backdrop merely structural conventions varying significance traditional treatment certain categories important facts like degree injury victims crime relation particular crimes given statute unclear treating fact element penalty aggravator makes sense look statutes done fair assumption congress unlikely intend radical departures past practice without making point saying engaged enquiry past term stressed history treating recidivism sentencing factor noted perhaps one exception congress never clearly made prior conviction offense element offense conduct absence recidivism independently unlawful contrary search comparable examples readily suggests congress separate aggravated offenses mind employed scheme numbered subsections although congress explicitly treated serious bodily injury sentencing factor see interstate violation protection order free access clinic entrances bodily injury unmistakably identified serious bodily injury offense element number statutes see assault member armed forces violence international airports genocide likelihood congress understood injury offense element follows fact carjacking type robbery serious bodily injury traditionally treated congress state legislatures defining element offense aggravated robbery government acknowledges brief congress modeled federal carjacking statute several federal robbery statutes one robbery involving controlled substances clearly makes causing serious bodily injury element offense provides hoever takes attempts take person presence another force violence intimidation certain controlled substances shall fined imprisoned twenty years replacement cost controlled substance less another person killed suffered significant bodily injury result taking attempt see also second model bank robbery government concedes see brief makes related facts violence assault jeopardizing life using dangerous weapon elements defining aggravated form type robbery see cf supra citing bank robbery statute example statute establishing greater lesser included offenses mcmillan contrasting provision defining sentencing enhancement pressed oral argument government proved unable explain congress might chosen one treatment serious bodily harm violence defining two three offenses used models different treatment writing carjacking statute see tr oral arg unable imagine convincing reason thus think fair say earlier robbery statutes carjacking statute congress probably intended serious bodily injury element defining aggravated form crime state practice bolsters conclusion many use causation serious bodily injury harm element defining distinct offense aggravated robbery see code robbery first degree defined part causing serious physical injury alaska stat ann ark code ann aggravated robbery nflicts attempts inflict death serious physical injury stat robbery first degree auses serious physical injury iowa code robbery first degree purposely inflicts attempts inflict serious injury kans stat ann aggravated robbery inflicts bodily harm rev stat ann michie robbery first degree causes physical injury rev stat ann iii class felony robbery nflicted attempted inflict death serious injury penal law mckinney robbery first degree auses serious physical injury rev stat robbery first degree auses attempts cause serious physical injury tex penal code ann aggravated robbery causes serious bodily injury utah code ann aggravated robbery causes serious bodily injury rev code robbery first degree nflicts bodily injury state practice admittedly direct authority reading federal carjacking statute show treating serious bodily injury element congress treading path despite indications equivocal structural clues government suggests amendment supports reading carjacking statute previously enacted carjacking correction act stat congress provided term serious bodily injury subsection include sexual abuse aggravated sexual abuse defined government points several statements amendment legislative history subsection described providing penalty enhancement see pp showing subsection defines sentencing factor even us disposed treat legislative history authority however find quoted statements unimpressive assuming penalty enhancement meant synonymous sentencing factor legislative history also contains contrary indications statements made amendment sponsors suggesting assumption subsection established element elements proven trial see cong rec july statement biden defendant convicted raping woman emphasis added hardly seems occasion doubt subsequent legislative history hazardous basis inferring intent earlier congress pension benefit guaranty corporation ltv corp quoting price indeed leeriness relying hindsight expressed legislative history confirmed recognizing oddity defining fact serious bodily injury reference distinct offense offense elements like sexual abuse time assuming fact defined merely sentencing consideration think legislative history attracted appeals helpful government see committee reports floor debate statute refer augmentation criminal law singular plural speaking new federal crime offense carjacking singular see pt cong rec statement dingell make distinction turns circumstances characterizing cluster provisions enacting something described singular terms offense crime signify good deal speakers writers addressing point distinction mattered however passages cited references couched singular occur discussions issue offense elements versus sentencing factors confront think significance slight subject legislative history add see nothing favorable government fact statement house report explaining drafters carjacking statute drew examples federal robbery statutes referred early version carjacking statute lacked reference aggravated forms offense defined subsections see supra suggestion congress looked earlier robbery statutes settled language contained carjacking statute first paragraph think strange congress find guidance robbery statutes beginning legislative process forget government suggests somewhat different context reason think congress might abandoned ready federal models developing fully elaborated version statute ultimately adopted brief iii think fairest reading treats fact serious bodily harm element mere enhancement recognize possibility view doubt might prompted arguments reading however resolved rule repeatedly affirmed statute susceptible two constructions one grave doubtful constitutional questions arise questions avoided duty adopt latter ex rel attorney general delaware hudson see also jin fuey moy respect congress assume legislates light constitutional limitations rust sullivan adhere principle long applied beyond debate edward debartolo florida gulf coast building constr trades council see also video government us construe statute open constitutional doubt light series cases past quarter century dealing due process guarantee trial jury first mullaney wilbur reviewed maine murder statute providing element malice sense want provocation patterson new york presumed upon proof intent kill resulting death subject defendant right rebuttal acted provocation heat passion reduce offense manslaughter mullaney supra challenge presumption subject rebuttal relieved state due process burden prove every element crime beyond reasonable doubt explained winship state replied challenge merely formalistic state law effect established generic crime felonious homicide mullaney supra view fact subject presumption rebuttal gone simply sentence winship controlling declined accord state license recharacterize issue part state reading left statute odds common law recognition malice fact distinguishing murder manslaughter widely held modern view heat passion raised evidence subject state burden part unlimited choice characterizing stated fact element leave state substantially free manipulate way winship two terms later patterson new york supra ruled winship challenge scheme defining murder causing death intent subject affirmative defense extreme emotional disturbance reasonable explanation unlike maine law new york raised presumption malice malice omitted elements murder patterson contended presence absence extreme emotional disturbance affected severity sentence winship mullaney required state prove absence fact beyond reasonable doubt rejected argument decline adopt constitutional imperative state must disprove beyond reasonable doubt every fact constituting affirmative defenses related culpability accused identified use presumption establish essential ingredient offense curse maine law shifting burden persuasion respect fact state deems important must either proved presumed impermissible due process clause id one caveat therefore patterson left free choose elements define crimes without impediment winship caveat stated recognition limit upon state authority reallocate traditional burden proof case easily satisfied fact common law burden proving mitigating circumstances severe emotional disturbance rested defendant id see also id mullaney supra narrow reading limit might ban using presumptions reduce elements point nominal broader reading equally open state lacked discretion omit traditional elements definition crimes instead require accused disprove elements cases allocation burden implications charging obligation requisite quantum proof succeeded mcmillan pennsylvania winship issue rose provision judge finding preponderance visible possession firearm require mandatory minimum sentence certain felonies minimum fell within sentencing ranges otherwise prescribed although rejected petitioner claim insofar required finding beyond reasonable doubt fact upon mandatory minimum sentence depended rejected certain subsidiary arguments well observe result might different proof visible possession exposed defendant sentence beyond maximum statute otherwise set without reference fact mcmillan notable acknowledging question due process requirements factfinding raises sentencing range also disposing claim pennsylvania law violated sixth amendment right jury trial well petitioner basic argument right jury determination ultimate facts concerning offense committed id although disposed reference back due process discussion discussion broached potential constitutional significance factfinding raised sentencing ceiling mcmillan recognizes question due process clause fourteenth amendment jury guarantee sixth jury determination waived may judicial factfinding preponderance support application provision increases potential severity penalty variant given crime seriousness due process issue evident mullaney insistence state manipulate way winship patterson recognition limit state authority reallocate traditional burdens proof substantiality jury claim evident practical implications assuming sixth amendment indifference treating fact sets sentencing range sentencing factor element terms carjacking statute illustrate well stake serious bodily injury merely sentencing factor increasing authorized penalty two thirds years death presumably nothing sentencing factor subsection increasing penalty range life potential penalty might rise years life nonjury determination jury role correspondingly shrink significance usually carried determinations guilt relative importance gatekeeping cases jury finding fact necessary maximum sentence merely open door judicial finding sufficient life imprisonment therefore trivial question ask whether recognizing unlimited legislative power authorize determinations setting ultimate sentencing limits without jury invite erosion jury function point line must necessarily drawn question might well less serious constitutional doubt rule requires history bearing framers understanding sixth amendment principle demonstrated accepted tolerance exclusively judicial factfinding peg penalty limits history sure scholarship aware show question exactly like one ever raised resolved period framing hand several studies demonstrate general level tension jury powers powers exclusively judicial likely much fore framers conception jury right fact point statutes earlier time exemplifying distinction elements facts elevate sentencing ranges unsurprising given breadth judicial discretion fines corporal punishment less important misdemeanor cases see baker introduction english legal history ed blackstone commentaries laws england hereinafter blackstone preyer penal measures american colonies overview legal hist norm fixed sentences cases felony see langbein english criminal trial jury eve french revolution trial jury england france germany pp schioppa ed blackstone scott criminal law colonial virginia even system however competition developed judge jury real significance respective roles potential inevitable severity sentences indirectly checked juries assertions mitigating power circumstances prosecution pointed political abuse criminal process endowed criminal conviction particularly sanguinary consequences power thwart parliament crown took form acquittals face guilt today call verdicts guilty lesser included offenses manifestations blackstone described pious perjury jurors part blackstone countervailing measures diminish juries power naturally forthcoming ensuing responses mother country colonies validate though answer question government position raise one move government side parliamentary practice barring right jury trial defining new statutory offenses see frankfurter corcoran petty federal offenses constitutional guaranty trial jury harv rev blackstone practice extended violations stamp act recurred statutes regulating imperial trade see ubbelohde courts american revolution wroth massachusetts vice admiralty law authority colonial america billias ed one occasions protest declaration independence deprivation benefit jury trial see maier american scripture even declaration less revolutionary voice continental congress protested legislative practice words widely read america use nonjury proceedings late far extended blackstone warned check timely given threaten disuse admirable truly english trial jury blackstone identifying trial jury grand bulwark english liberties blackstone contended liberties remain secure long palladium remains sacred inviolate open attacks none hardy make also secret machinations may sap undermine introducing new arbitrary methods trial justices peace commissioners revenue courts conscience however convenient may appear first doubtless arbitrary powers well executed convenient yet let remembered delays little inconveniences forms justice price free nations must pay liberty substantial matters blackstone second response juries power control outcomes occurred attempts confine jury determinations libel cases findings fact leaving judges apply law thus limit opportunities juror nullification ultimately course attempt failed juries victory embodied fox libel act britain see generally green verdict according conscience exemplified john peter zenger acquittal colonies see rakove original meanings significant merely denouement restrictive efforts left juries control focus efforts principally juries control ultimate verdict applying law fact finding law see id factfinding role apparently accepted understanding time finding facts simply sacred jury prerogative trifled prosecution significant traditional offense common law courts history minds framers beyond cavil according one authority leading account zenger trial one possible exception widely known source libertarian thought england america eighteenth century levy freedom speech press early american history much beyond question americans period perfectly well understood lesson jury right lost gross denial erosion see supra one contributor ratification debates example commenting jury trial guarantee art iii echoed blackstone warning need guard jealous circumspection introduction new arbitrary methods trial variety plausible pretenses may time imperceptibly undermine best preservative liberty new hampshire farmer june quoted complete bill rights cogan ed sum reason suppose present circumstances however peculiar details time place relative diminution jury significance merit sixth amendment concern course anyone today claim every fact bearing sentencing must found jury resolved general issue intention questioning resolution point simply diminishment jury significance removing control facts determining statutory sentencing range resonate claims earlier controversies raise genuine sixth amendment issue yet settled position sixth amendment due process issues means boards calls word several cases followed mcmillan decided last term stands proposition every fact expanding penalty range must stated felony indictment precise holding recidivism increasing maximum penalty need charged case dispositive question merely concerned sixth amendment right jury trial alone rights indictment notice claimed holding last term rested substantial part tradition regarding recidivism sentencing factor element set indictment repeated emphasis distinctive significance recidivism leaves question regarded fact potentially distinguishable constitutional purposes facts might extend range possible sentencing see id outset note relevant statutory subject matter recidivism ibid recidivism subject matter mind turn statute language id first sentencing factor issue recidivism traditional traditional basis sentencing increasing offender sentence id distinguishing mcmillan light particular sentencing factor issue case recidivism one basis possible constitutional distinctiveness hard see unlike virtually consideration used enlarge possible penalty offense certainly unlike factor us case prior conviction must established procedures satisfying fair notice reasonable doubt jury trial guarantees read resolve due process sixth amendment questions implicated reading carjacking statute government urges question resolved series three cases dealing factfinding capital sentencing first spaziano florida contains discussion sort factfinding us case addressed argument capital sentencing must jury task rejected position ground capital sentencing like sentencing cases choice appropriate disposition alternative range alternatives id spaziano followed years hildwin florida per curiam holding determination aggravating facts entrusted judge following verdict guilty murder jury recommendation death without violating sixth amendment jury clause although citing spaziano authority hildwin first case deal expressly factfinding necessary authorize imposition severe alternative sentences thus arguably comparable factfinding necessary expand sentencing range available conviction lesser crime murder even satisfied analogy sound hildwin drive answer sixth amendment question raised government position hildwin jury made sentencing recommendation death thus necessarily engaging factfinding required imposition higher sentence determination least one aggravating factor proved hildwin therefore hardly read resolving issue discussed reasoning walton arizona confirms walton dealt argument slightly less expansive one spaziano every finding underlying sentencing determination must made jury although rejection position cited hildwin characterized nature capital sentencing quoting poland arizona see described statutory specifications aggravating circumstances capital sentencing standards guide choice alternative verdicts death life imprisonment ibid quoting poland supra internal quotation marks omitted thus characterized finding aggravating facts falling within traditional scope capital sentencing choice greater lesser penalty process raising ceiling sentencing range available frank say emphasize careful reading walton rationale question implicated government position meaning significant decided without squarely faced sum government view raise serious constitutional questions precedent dispositive doubt issue statutory construction hence resolved favor avoiding questions done construing establishing three separate offenses specification distinct elements must charged indictment proven beyond reasonable doubt submitted jury verdict judgment appeals accordingly reversed case remanded proceedings consistent opinion ordered nathaniel jones petitioner writ certiorari appeals ninth circuit march justice stevens concurring like justice scalia see post convinced unconstitutional legislature remove jury assessment facts increase prescribed range penalties criminal defendant exposed equally clear facts must established proof beyond reasonable doubt essence holdings winship mullaney wilbur patterson new york permit anything less respect fact state deems important must either proved presumed impermissible due process clause id principle firmly embedded jurisprudence centuries common law decisions see winship duncan louisiana indeed view proper understanding principle encompasses facts increase minimum well maximum permissible sentence also facts must established defendant may put death mcmillan pennsylvania part ii opinion walton arizona departed principle think see mcmillan stevens dissenting walton stevens dissenting reconsidered due course however necessary order join opinion today nathaniel jones petitioner writ certiorari appeals ninth circuit march justice scalia concurring dissenting suggested possibility dissenting monge california set forth considered view unconstitutional remove jury assessment facts alter congressionally prescribed range penalties criminal defendant exposed think necessary resolve ambiguities criminal statutes fashion avoid violation constitutional principle join opinion nathaniel jones petitioner writ certiorari appeals ninth circuit march ustice ennedy chief justice justice justice breyer join dissenting question presented whether federal carjacking statute prohibiting taking motor vehicle person presence another force violence intimidation contains first paragraph complete definition offense elements crime congress intended codify view shared every appeals addressed issue adopts contrary strained reading according single statutory section prohibits three distinct offenses involved simply question statutory interpretation majority opinion cause much concern questions statutory interpretation close nonetheless routine today case however unwilling rest opinion textual analysis rather bolster statutory interpretation raises specter grave doubtful constitutional questions ante without adequate explanation origins contours consequences constitutional concerns reliance constitutional doubt rule inconsistent usual principles stare decisis contradicts approach followed last term precedents admit real doubt regarding power congress establish serious bodily injury death sentencing factors rather offense elements made clear departing recent authority sweeping constitutional discussion casts doubt sentencing practices assumptions followed federal system also many thus among unsettling consequences today decision intrudes upon legitimate vital state interests upsetting proper federal balance dissent unfortunate unnecessary result departs troubling constitutional discussion analyzes text portion opinion acknowledged careful comprehensive submission however analysis suggests presence interpretative ambiguity fact exists reaches wrong result like begin textual question criminal laws proscribe certain conduct specify punishment transgressions person commits crime conduct violates essential parts defined offense refer elements general rule element charged crime must set forth indictment hamling established government proof beyond reasonable doubt winship determined jury assuming jury right invoked sullivan louisiana rigorous requirements apply respect factors relevant sentencing offender found guilty charged crime see also mcmillan pennsylvania question factors normally matter congress determining whether clauses set forth sentencing factors define distinct criminal offenses task look statute us ask congress intended ibid statute follows whoever possessing firearm defined section title takes motor vehicle transported shipped received interstate foreign commerce person presence another force violence intimidation attempts shall fined title imprisoned years serious bodily injury defined section title results fined title imprisoned years death results fined title imprisoned number years life supp quite fair acknowledge first reading initial look statute suggests clauses sentencing provisions ante view conclusion survives meticulous examination section begins setting forth initial paragraph elements typical offense ordinary purposes complete crime instance single punishment provided clause think complaint jury instructions drawn first paragraph without reference punishment set forth clause design statute yields conclusion following numbered provisions convert clauses additional elements punishment provisions directed sentencing judge alone sure drafting clear proffered interpretation better implemented word shall end first paragraph followed verb form punished period even written though statute sets forth complete crime first paragraph difficult see congress double back insert additional elements jury consideration clauses likely explanation congress set forth offense first punishment second without intending combine two unlike unpersuaded factors reading odds congressional intent substance clauses harm crime including whether crime commission results serious bodily injury death victim long deemed relevant sentencing purposes like recidivism typical sentencing factor one might imagine supra point dispute fix punishment based harm resulting crime settled practice traditional discretionary sentencing regimes see dept justice rhodes conly analysis federal sentencing federal justice research program preguidelines practice respect variety crimes amount harm threatened done victims made significant difference length sentence even confine attention codified law however examples abound prove point federal statutes notes treat serious bodily injury sentencing factor ante state law common practice discloses widespread reliance factors sentencing purposes see alaska stat ann physical injury rev stat ann supp serious physical injury rev stat serious bodily injury stat ann supp permanent physical injury haw rev stat supp serious substantial bodily injury upon certain victims comp ch serious harm la code crim proc art west risk death great bodily harm one person stat ann west gravity seriousness harm inflicted victim stat serious injury inflicted upon victim permanent debilitating ohio rev code ann serious physical harm admin rules permanent injury code ann death serious bodily injury utah code judicial app form substantial bodily injury given widespread understanding nothing surprising anomalous conclusion congress chose treat serious bodily injury resulting death sentencing factors addition plain reading reinforced common patterns statutory drafting example one established statutory model congress defines elements offense initial paragraph ending phrase shall punished provided separate subsection subsection provides graded sentencing ranges predicated upon specific findings serious bodily injury death see section follows similar logic true clauses separated separate subsection thus giving rise textual problem must resolve congress always separate sentencing factors separate subsections however see supp iii fraud enhanced penalties violation results serious bodily injury results death statutes like structure suggests design defines offense first punishment afterward addition significance use active voice main paragraph passive voice clauses common practice criminal statutes use active voice define prohibited conduct see supp iii hoever kills attempts kill assaults robs attempts rob receives possesses conceals disposes tex penal code ann aggravated robbery causes serious bodily injury uses exhibits deadly weapon cf setting forth sentencing factors bodily injury results death results sentencing commission guidelines manual robbery guideline victim sustained bodily injury drafting conventions absolute rules congress uses active language phrasing sentencing factors instances see supp iii serious bodily injury victim results offender uses dangerous weapon offense nevertheless customary drafting conventions support rather contradict interpretation sets forth one offense offers specific arguments regarding background considerations deserving consideration response first principal argument cites three federal robbery statutes according legislative history modeled acknowledges however one statutes refer serious bodily injury death result ing omission deems statute irrelevant purposes yet committee report cited definition tracks language used federal robbery including ante quoting pt definition offense includes tak ing attempt ing take motor vehicle person presence another force violence intimidation altogether consistent definition offense provides part hoever force violence intimidation takes attempts take person presence another something value shall imprisoned course include least one element within special maritime territorial jurisdiction former transported shipped received interstate foreign commerce latter elements however included unambiguous fashion part statutes respect debatable interpretive question whether serious bodily injury death part carjacking offense circumstance definition offense based include elements suggests include elements either passing suggests support reading disagree section captioned bank robbery incidental crimes consists eight subsections last three definitional irrelevant question hand first subsection subsection proscribes crime bank robbery language tracks definition offense tak ing attempt ing take something value person presence another force violence intimidation subsection proceeds define offense bank larceny cast different terms natural light different conduct proscribed subsections two subsections relied upon provide follows whoever committing attempting commit offense defined subsections section assaults person puts jeopardy life person use dangerous weapon device shall fined title imprisoned years whoever committing offense defined section avoiding attempting avoid apprehension commission offense freeing attempting free arrest confinement offense kills person forces person accompany without consent person shall imprisoned less ten years death results shall punished death life imprisonment held subsections set forth separate offenses citations mcmillan score inapt neither case hold set forth distinct offenses assuming however fail prove point two reasons first matter structure divided distinct subsections parallel form excluding definitional provisions end five subsections begins word hoever followed specified conduct given subsections subsections set forth distinct offenses fair presume like structured neighbors well one finds analogous subsections clauses matched contrary clause plainly fails introduce anything construed offense element making less likely offense elements introduced clauses second phrases cited assaults person puts jeopardy life person use dangerous weapon device rather different serious bodily injury results death results language former phrases occur clause shall also phrased active voice placing attention defendant actions rather consequences death results phrase end subsection closer analogue clauses reason assume phrase opposed preceding portion subsection defines element offense respect asserts without citation authority phrase another person suffered significant bodily injury subsection element offense ante even assuming correct point however differences structure provision show comparable clauses set forth alternative sentences three clauses set forth alternative ways qualifying punishment provided natural reading drafters took thing took language defining basic elements robbery language provisions common four statutes short even indulging assumptions federal robbery statutes support conclusion contains three substantive offenses rather four statutes employ similar language define elements basic offense sense modeled next relies consumer statute support reading indeed true suggests structure phrasing similar carjacking statute however neither research indicates appeals held creates multiple offenses case cited proposition courts appeals treat statute defining basic aggravated offenses ante establishes nothing kind appeals recite defendant charged convicted multiple counts product tampering three subsections meling none issues presented turned whether subsections set forth additional elements final justification reading rests state practice course argue take factors like serious bodily injury account sentencing discussed instead says many created distinct offense aggravated robbery requiring proof serious bodily injury harm unremarkable laws reflect nothing common intuition forcible theft else equal blameworthy results serious bodily injury death doubt congress responding intuition added clauses recognizing common policy concern however gives scant guidance question us whether congress meant give effect policy making serious bodily injury death elements distinct offenses making sentencing factors agree state statutes direct authority issue presented ante persuasive force citations undercut structural differences laws ten thirteen statutes cited follow pattern one statutory section sets forth elements basic robbery offense another section captioned aggravated robbery robbery first degree incorporates basic robbery offense either explicit obvious implication adds bodily physical injury element active voice provides aggravated crime subject higher penalty set forth elsewhere class felony two remaining three statutes penal law mckinney rev stat ann michie deviate pattern minor respects third rev stat ann singular structure congress wished emulate state practice detail one might expected structure similar manner majority model cf suggests either congress chose different structure utilized order show intent treat serious bodily injury sentencing factor ii congress simply concentrate state practice deciding whether serious bodily injury classed element sentencing factor neither possibility sustains interpretation ii although view errs reading simple matter statutory construction far greater concern constitutional discussion order inject rule constitutional doubt case treats relevant line authorities winship purpose write odds produce coherent body case law interpreting relevant constitutional provisions attempt create instability neither proper use rule constitutional doubt persuasive reading precedents settled opinion says winship made clear long accepted criminal justice system principle criminal case government must establish guilt beyond reasonable doubt implement constitutional protection follows must understanding essential elements crime cases like one arise requiring statutory analysis nonetheless holding first case decided wake winship mullaney wilbur seems straightforward homicide cases maine sought presume malice fact intentional killing alone subject defendant right prove acted heat passion even though fact issue presence absence heat passion sudden provocation almost inception common law homicide single important factor determining degree culpability attaching unlawful homicide later explained mullaney held state must prove every ingredient offense beyond reasonable doubt may shift burden proof defendant presuming ingredient upon proof elements offense patterson new york patterson confronted state rule placing defendant burden establishing extreme emotional disturbance affirmative defense murder today majority opinion recognizes patterson stands proposition state considerable leeway determining factors shall included elements crimes determined new york permitted place burden proving affirmative defense defendants nothing presumed implied mcmillan pennsylvania upheld state law requiring imposition mandatory minimum sentence upon trial judge determination defendant visibly possessed firearm commission enumerated offense today majority errs respectful view suggesting mcmillan somewhat inconsistent patterson mcmillan holding follows easily patterson mcmillan confirmed state authority treat aggravated behavior factor increasing sentence rather element crime opinion made clear already rejected claim whenever state links severity punishment presence absence identified fact state must prove fact beyond reasonable doubt quoting patterson new york supra today decision chooses rely language mcmillan create doubt none ante yet uncertainty score put rest decision last term say otherwise majority must strive limit must struggle patterson mcmillan however controls question us initial matter makes clear constitutional doubt methodology employed today incorrect teaches constitutional doubt canon construction applicable statute issue genuinely susceptible two constructions complexities unraveled statutory construction avoids constitutional question fair one reasons given part supra appeals interpretation view superior petitioner reading minimum question whether statute issue set forth sentencing factors elements distinct offenses closer one statutory question presented yet found insufficient ambiguity warrant application constitutional doubt principle unless abandon pretense consistency application principle incumbent explain reconciles analysis proper construction statute clearer less reason light question constitutionality statute construed appeals insubstantiality constitutional concern indicated quite summary reference principle constitutional law statute might offend puts argument way fact prior conviction increases maximum penalty crime must charged indictment submitted jury proven beyond reasonable doubt ante suggests carjacking statute violates principle absent finding serious bodily injury defendant may sentenced maximum years imprisonment absent finding death may sentenced maximum years imprisonment finding serious bodily injury increases maximum penalty crime carjacking years imprisonment finding death increases maximum life imprisonment taken word congress comply principle making minor changes phraseology leave statutory scheme practical purposes unchanged congress leave initial paragraph intact provide one commits conduct described shall imprisoned number years life add sentencing judge determines death resulted one convicted section shall imprisoned years sentencing judge determines serious bodily injury resulted one convicted section shall imprisoned years practical result current version construed appeals jury makes requisite findings initial paragraph sentences defendant within one prescribed ranges based judge determination whether serious bodily injury death resulted tell us whether version statute pass constitutional muster principle amounts nothing chastising congress failing use approved phrasing expressing intent carjackers punished constitutional values served formalistic approach constitutional costs statutes struck today misconstrued real hand rephrased still violate underlying constitutional principle explain determine sentencing schemes cross constitutional line example statute sets maximum penalty provides detailed sentencing criteria applied sentencing judge along lines federal sentencing guidelines detailed version rephrased suggested left guess whether statutes sort might jeopardy terms justice scalia view unconstitutional remove jury assessment facts alter congressionally prescribed range penalties criminal defendant exposed ante concurring opinion call question validity mandatory minimum sentencing provisions contrary holding mcmillan facts triggering application mandatory minimum found judge sentencing range defendant exposed altered light uncertainties today decision raises questions acknowledges event constitutional doubts well founded squarely rejected petitioner argument significant increase statutory maximum sentence trigger constitutional elements requirement said constitution impose requirement see also monge california rejected absolute rule enhancement constitutes element offense time increases maximum sentence defendant exposed indeed dissenters doubt score opinion scalia arguing today unnecessary resolution point serious doubt whether constitution permits defendant sentencing exposure increased tenfold basis fact charged tried jury found beyond reasonable doubt suggests two bases distinguishable neither persuasive first suggests case concerned sixth amendment right jury trial alone rights indictment notice claimed ante valid basis upon distinguish petitioner claimed constitution requires congress treat recidivism element offense corollary government must prove element jury suggested previous opinions moreover difference context relevant one hand right jury determination right notice indictment determination based upon proof prosecution beyond reasonable doubt offers reason concept element crime mean one thing one inquiry something else another little guide us formulating standard differentiate elements crime purposes indictment jury trial proof beyond reasonable doubt inviting confusion curious way safeguard important procedural rights criminal defendants second eager find controlling significance fact statute issue made recidivism sentencing factor sentencing factor issue serious bodily injury difference constitutional dimension say otherwise true statutory analysis informed substantial measure fact recividism common sentencing factor constitutional analysis invoked long history using recidivism basis increasing offender sentence illustrate novel anomalous character petitioner proposed constitutional rule mcmillan pennsylvania factor increases maximum penalty crime must deemed element offense proceeded reject rule dissenters like today misunderstood import discussion correct observation impossible understand mcmillan mean one thing later case recidivism issue something else later case sentencing factor issue opinion calia constitutional portion also rejected argument constitutional concerns raised different tradition courts treated recidivism element related crime id found argument unconvincing tradition uniform ibid course true respect sentencing factors issue see infra sum rational basis making recidivism exception calia dissenting emphasis omitted deems new direction justified departure stare decisis make case support view based historical misunderstanding misinterpretation submission historical discussion demonstrates tension jury safeguard exclusively judicial powers probably generally informed framers conception jury right ante must correct call question principle definition elements criminal offense entrusted legislature staples quoting liparota historical analysis might bearing instant case disclosed intent serve real objective punishing without constitutional safeguards caused serious bodily harm rather prevent underlying conduct carjacking see supra inference implication drawn text statutory history offense consideration fact makes attempt argue anything particular carjacking statute suggests jury role unconstitutionally diminished gravamen offense carjacking coupled threat bodily harm jury resolves issues whether vehicle taken force violence intimidation indeed whether serious bodily injury results outside defendant control already explained least novel view offense established extent harm caused taken account sentencing phase respect today case far easier mcmillan sentencing factor inherent criminal conduct rationale constitutional doubt holding makes difficult predict full consequences today holding likely cause disruption uncertainty sentencing systems sentencing one difficult tasks enforcement criminal law seeking bring order consistency process sought move system indeterminate sentencing grant vast discretion trial judge regime uniform penalties prescribed legislature see campbell law sentencing ed confronted unexpected rule mandating factors bearing upon sentence must treated offense elements determination jury especially issue conduct defendant consequences completed criminal act disconcerting result today decision needless doubt analysis casts upon cases involving capital sentencing example walton arizona viewed aggravating factors issue sentencing enhancements elements offense true serious bodily injury reading rejects constitutionally suspect question given characterization statutory scheme walton constitutionally permissible relevant arizona statute walton sentenced death unless trial judge found least one enumerated aggravating factors see rev stat ann absent finding maximum potential punishment provided law term imprisonment constitutionally impermissible allow judge finding increase maximum punishment carjacking years clear judge finding may increase maximum punishment murder imprisonment death fact walton appear better candidate new approach instant case walton question aggravated character defendant conduct result followed criminal conduct completed distinguishing line precedent suggests walton squarely fac key constitutional question implicated government position meaning ante implication clear reexamination area capital jurisprudence expected misreads seeks create constitutional doubt none view controls case hold interpreted appeals constitutional dissent opinion judgment footnotes congress amended statute violent crime control law enforcement act deleted phrase first paragraph concerning firearm possession replaced phrase intent cause death serious bodily harm stat also made death possible punishment offenses committed subsection ibid carjacking correction act congress specified term serious bodily injury subsection includes certain sexual assaults stat ninth circuit vacated another portion district sentencing decision remanded oliver remand district reduced petitioner carjacking sentence years total sentence years appeals affirmed app see infra legislative history identifies three models see pt definition offense tracks language used federal robbery statutes one robbery areas federal maritime territorial jurisdiction lacks aggravated forms offense altogether thus point dissent passing questions view makes causing significant bodily injury element offense defined section see post offers reason doubt reading given establishes one maximum punishment makes eligibility punishment contingent establishment least one three facts one causing death significant bodily injury think reading sensible one dissent repeatedly chides us failing state precisely enough principle animating view carjacking statute construed government may violate constitution see post preceding paragraph text expresses principle plainly enough due process clause fifth amendment notice jury trial guarantees sixth amendment fact prior conviction increases maximum penalty crime must charged indictment submitted jury proven beyond reasonable doubt prior cases suggest rather establish principle concern government reading statute rises level doubt certainty contrary dissent suggestion constitutional proposition drives concern way call question principle definition elements criminal offense entrusted legislature post internal quotation marks omitted constitutional guarantees give rise concern way restrict ability legislatures identify conduct wish characterize criminal define facts whose proof essential establishment criminal liability constitutional safeguards figure analysis concern identity elements defining criminal liability required procedures finding facts determine maximum permissible punishment safeguards going formality notice identity factfinder burden proof english practice see langbein shaping criminal trial chi rev green english criminal trial jury trial jury england france germany schioppa ed colonial american practice see goebell naughton law enforcement colonial new york state bennet brevard principle jury judges fact judges deciders law stated established principle early coke see coke institutes laws england ad questionem facti non respondent judices ad questionem juris non respondent juratores see also langbein english criminal trial jury eve french revolution trial jury england france germany supra even traditional view libel law recognized jury authority matters fact see king francklin tr publication words meaning ascribed two matters fact come consideration proper judges third thing wit whether defamatory expressions amount libel belong office jury office matter law fact proper judges thus participants struggle jury autonomy seditious libel cases viewed debate concerned extent jury power unquestioned role determiner factual issues see green verdict according conscience influential jurists suggested might also seen struggle jury right find particular fact namely required criminal intent see holdsworth history english law see blackstone jurors choose stop special verdicts wished dissent insists controls question us post substantiating assertion tellingly relies heavily claims dissenters statements majority neither source bears current dissent conclusion dissenters case suggest turn particular sentencing factor issue instead stood broad proposition fact increasing maximum permissible punishment may determined judge preponderance mystery majority engaged much discussion recidivism crux constitutional discussion turned first discuss tradition recidivism treatment sentencing factor ibid never announced unqualified holding today dissenters claim find admittedly dissent notes dissenters criticized majority considered majority unsupportable restraint restricting holding recidivism criticism lacked target majority doggedly refrained endorsing general principle dissent case attributes majority dissenters disagreed legitimacy decision restrict holding recidivism sides agreed done tones alarm dissent suggests see post decision unsettle efforts many bring greater consistency sentencing practices provisions determinate sentences statutorily administratively established guidelines governing sentencing decisions dissent concern misplaced several reasons immediately decision today announce new principle constitutional law merely interprets particular federal statute light set constitutional concerns emerged series decisions past quarter century even assume question raise someday followed answer dissenters seem fear answer way hinder national government choosing pursue policies aimed rationalizing sentencing practices constitutional concern expressed lead rule requiring jury determination facts raise sentencing ceiling rule way constrain legislative authority identify facts relevant punishment establish fixed penalties constitutional guarantees prompt interpretation bear solely procedures facts raise possible penalty found notice must given must find facts burden must satisfied demonstrate finally disagree dissent dire prediction effect decision ability choose certain sentencing policies go without saying policies conflict safeguards enshrined constitution protection accused policies yield constitutional guarantees see burch louisiana verdicts criminal juries sufficiently threaten constitutional principles animating jury trial guarantee countervailing interest state yield cf needs law enforcement stand constant tension constitution protections individual certain exercises official power precisely predictability pressures counsels resolute loyalty constitutional safeguards