jones argued february decided june petitioner sentenced death crime kidnaping resulting victim death petitioner sentence imposed pursuant federal death penalty act et seq sentencing hearing district instructed jury provided four decision forms record sentencing recommendation refused petitioner request instruct jury consequences jury deadlock jury unanimously recommended petitioner sentenced death district imposed sentence accordance jury recommendation fifth circuit affirmed held judgment affirmed affirmed justice thomas delivered opinion respect parts ii concluding eighth amendment require jury instructed consequences failure agree pp petitioner argues federal death penalty act requires judge sentencing jury retiring deliberations reports unable reach unanimous verdict case sentencing duty falls upon district pursuant pp eighth amendment however require jury instructed consequences breakdown deliberative process instruction bearing jury role sentencing process moreover jury system object secure unanimity government strong interest jury express conscience community ultimate life death question charge sort petitioner suggests might well undermine strong governmental interest addition congress chose require instruction given declines invoke supervisory power federal courts require instruction given every capital case circumstances pp reasonable likelihood jury led believe petitioner receive sentence less life imprisonment event recommend unanimously sentence death life imprisonment without possibility release pp petitioner claims instruction pertaining jury sentencing recommendation combination decision forms led confusion warranting reversal sentence due process clause eighth amendment act petitioner voice objections raises jury retired see fed rule crim proc claim error subject limited appellate review plain error johnson pp review relief warranted unless error plain affects substantial rights petitioner argument falls short satisfying even first requirement error occurred proper standard reviewing claims allegedly ambiguous instructions caused jury confusion whether reasonable likelihood jury applied challenged instruction way violates constitution likelihood district gave explicit instructions consequences nonunanimity passages petitioner argues led jury confusion viewed context entire instructions lack ambiguity decision forms accompanying instructions create reasonable likelihood confusion effect nonunanimity district explicit instruction jury unanimous exhortation jury discuss punishment attempt reach agreement make doubtful jury thought compelled recommend lesser sentence event disagreement even assuming arguendo plain error occurred petitioner show affected substantial rights district admonished jury concern effect lesser sentence recommendation moreover assuming jurors confused consequences deadlock petitioner show confusion necessarily worked detriment likely jurors loathe recommend lesser sentence compromised life imprisonment sentence death sentence cf romano oklahoma pp assuming arguendo district erred allowing jury consider nonstatutory aggravating factors vague overbroad duplicative violation eighth amendment error harmless beyond reasonable doubt appellate may conduct review considering either whether absent invalid factor jury reached verdict whether result invalid aggravating factor precisely defined see clemons mississippi fifth circuit performed first sort analysis explanation appears sufficient even analysis perfunctory plain alternative mode analysis error indeed harmless nonstatutory aggravating factors precisely defined writing jury reached recommendation government argument jury cured factors infirmity written pp thomas announced judgment delivered opinion respect parts ii rehnquist scalia kennedy jj joined opinion respect part rehnquist kennedy joined ginsburg filed dissenting opinion stevens souter joined breyer joined parts ii iii louis jones petitioner writ certiorari appeals fifth circuit june justice thomas delivered opinion except part petitioner sentenced death committing kidnaping resulting death victim sentence imposed federal death penalty act et seq ed supp iii presented three questions whether petitioner entitled instruction effect jury deadlock whether reasonable likelihood jury led believe petitioner receive sentence less life imprisonment event reach unanimous sentence recommendation whether submission jury two allegedly duplicative vague overbroad nonstatutory aggravating factors harmless error answer first two questions third view error allowing jury consider challenged factors assuming error arguendo think clear error harmless petitioner louis jones kidnaped private tracie joy mcbride gunpoint goodfellow air force base san angelo texas brought house sexually assaulted soon thereafter petitioner drove private mcbride bridge outside san angelo repeatedly struck head tire iron died petitioner administered blows severe force victim body found medical examiners observed large pieces skull driven cranial cavity missing government charged petitioner inter alia kidnaping death resulting victim violation offense punishable life imprisonment death exercising discretion federal death penalty act et seq government decided seek latter sentencing option petitioner tried district northern district texas found guilty jury district conducted separate sentencing hearing pursuant initial matter sentencing jury required find petitioner requisite intent see concluded petitioner intentionally killed victim intentionally inflicted serious bodily injury resulting death even finding intent however defendant unless sentencing jury also finds government proved beyond reasonable doubt least one statutory aggravating factors set forth see petitioner charged committing homicide government prove statutory aggravating factors set forth ed supp iii different statutory aggravating factors crimes punishable death set forth jury unanimously found two factors proved beyond reasonable doubt agreed petitioner caused death victim commission another crime see committed offense especially heinous cruel depraved manner see petitioner became jury decide whether receive death sentence making selection decision act requires sentencing jury consider aggravating mitigating factors determine whether former outweigh latter mitigating factors whether aggravating factors alone sufficient warrant death sentence act however requires exacting proof aggravating factors mitigating ones although jury must unanimously agree government established existence aggravating factor beyond reasonable doubt jury may consider mitigating factor weighing process long one juror finds defendant established existence preponderance evidence addition two statutory aggravators established petitioner jury also unanimously found two aggravators nonstatutory variety proved one set forth victim impact evidence victim vulnerability evidence mitigating factors least one juror found petitioner proposed seven jurors wrote factor petitioner raised special findings form weighing aggravating mitigating factors jury unanimously recommended petitioner sentenced death app district imposed sentence accordance jury recommendation pursuant appeals fifth circuit affirmed sentence granted certiorari affirm ii first decide question whether petitioner entitled instruction consequences jury deadlock petitioner requested relevant part following instruction event due deliberation reflection jury unable agree unanimous decision sentence imposed advise impose sentence life imprisonment without possibility release event unable agree sentence life without possibility release death unanimous sentence less life without possibility release report vote sentence defendant life without possibility release app petitioner view eighth amendment requires jury instructed effect inability agree alternatively argues invoke supervisory power federal courts require instruction given turn petitioner eighth amendment argument question statutory interpretation calls attention fifth circuit held district err refusing petitioner requested instruction substantively correct see according appeals provides new jury shall impaneled new sentencing hearing guilt phase jury discharged good cause requires district impanel second jury hold second sentencing hearing event jury deadlock id government interprets statute way although reading nuanced urges judgment affirmed ground petitioner however reads act differently view whenever jury reaches result unanimous verdict recommending death sentence life imprisonment without possibility release duty sentencing falls upon district pursuant reads upon recommendation section defendant sentenced death life imprisonment without possibility release shall sentence defendant accordingly otherwise shall impose lesser sentence authorized law notwithstanding law maximum term imprisonment offense life imprisonment may impose sentence life imprisonment without possibility release petitioner argument based construction term therwise argues term means jury retiring deliberations reports unable reach unanimous verdict sentencing determination passes dissent also concludes post petitioner view statute better one phrase good cause plainly encompasses events juror disqualification read expansively include jury failure reach unanimous decision nevertheless eighth amendment require jury instructed consequences failure agree sure said eighth amendment requires sentence death imposed arbitrarily see buchanan angelone order capital sentencing scheme pass constitutional muster must perform narrowing function respect class persons eligible death penalty must also ensure capital sentencing decisions rest upon individualized inquiry ibid instruction petitioner requested bearing called eligibility phase capital sentencing process called selection phase cases held order satisfy requirement capital sentencing decisions rest upon individualized inquiry scheme must allow broad inquiry constitutionally relevant mitigating evidence id petitioner argue district failure give requested instruction prevented jury considering evidence theory district failure instruct jury consequences deadlock give rise eighth amendment problem different sort also held jury affirmatively misled regarding role sentencing process romano oklahoma way however jury affirmatively misled district refusal give petitioner proposed instruction truth matter proposed instruction bearing jury role sentencing process rather speaks happens event jury unable fulfill role deliberations break jury unable produce unanimous sentence recommendation petitioner argument although less clear appears death sentence arbitrary within meaning eighth amendment jury given bit information might possibly influence individual juror voting behavior contention merit never suggested example eighth amendment requires jury instructed consequences breakdown deliberative process contrary long view object jury system secure unanimity comparison views arguments among jurors allen recognized capital sentencing proceeding government strong interest jury express conscience community ultimate question life death lowenfield phelps citation omitted view charge jury sort proposed petitioner might well effect undermining strong governmental interest similarly decline exercise supervisory powers require instruction consequences deadlock given every capital case drafting act congress chose require instruction cf district shall instruct jury considering whether sentence death justified shall consider race color religious beliefs national origin sex defendant victim jury recommend sentence death unless concluded recommend sentence death crime question matter race color religious beliefs national origin sex defendant victim may petitioner point us decision new jersey requiring exercise supervisory authority jury informed sentencing consequences nonunanimity see new jersey ramseur course new jersey practice relevance decision power persuade several declined require similar instruction see north carolina mccarver brogie oklahoma crim app calhoun maryland md coulter alabama crim app justus virginia find reasoning virginia justus far persuasive new jersey especially light strong governmental interest recognized jury render unanimous sentence recommendation properly refused instruction offered defendant told jury reach agreement appropriate punishment dismiss impose life sentence correct statement law concerned procedural matter one subject instruction open invitation jury avoid responsibility disagree light legitimate reasons instructing jury consequences deadlock light congressional silence exercise supervisory powers require instruction sort petitioner sought given every case cf shannon petitioner argues jury led believe reach unanimous sentence recommendation receive sentence less severe life imprisonment proposed instruction consequences deadlock necessary correct jury erroneous impression moreover contends alleged confusion independently warrants reversal sentence due process clause eighth amendment act grounds due process claim assertion sentences may based materially untrue assumptions eighth amendment claim contention jury entitled accurate sentencing information statutory claim argument jury confusion available sentencing options constitutes arbitrary factor put petitioner claim proper context must briefly review jury instructions sentencing procedures used trial instructing jury aggravating mitigating factors explaining process weighing factors district gave following instructions pertaining jury sentencing recommendation based upon consideration jury unanimous vote shall recommend whether defendant sentenced death sentenced life imprisonment without possibility release sentenced lesser sentence unanimously conclude aggravating factors found exist sufficiently outweigh mitigating factor factors found exist absence mitigating factors aggravating factors sufficient justify sentence death may recommend sentence death keep mind however regardless findings respect aggravating mitigating factors never required recommend death sentence recommend imposition death sentence required impose sentence recommend sentence life without possibility release required impose sentence recommend lesser sentence imposed required impose sentence authorized law deciding recommendation make concerned question sentence defendant might receive event determine recommend death sentence sentence life without possibility release matter decide event conclude sentence death life without possibility release recommended app district also provided jury four decision forms record recommendation instructions explaining forms district told jury choice form depended recommendation forms decision form used determine sentence death imposed government failed prove beyond reasonable doubt existence required intent part defendant required aggravating factor decision form used unanimously recommend sentence death imposed decision form decision form used determine sentence death imposed unanimously find aggravating factor factors found exist sufficiently outweigh mitigating factor factors found exist unanimously find aggravating factor factors found exist sufficient justify sentence death mitigating factor found exist regardless findings respect aggravating mitigating factors unanimous recommending sentence death imposed decision form used unanimously recommend sentence imprisonment life without possibility release imposed decision form used recommend lesser sentence imposed petitioner maintains instructions combination decision forms led jury believe failed recommend unanimously sentence death life imprisonment without possibility release required use decision form impose sentence less life imprisonment scope review shaped whether petitioner properly raised preserved objection instructions trial party generally may assign error jury instruction fails object jury retires stat distinctly matter party objects grounds objection fed rule crim proc timeliness specificity requirements apply sentencing phase well trial see see also fed rules crim proc enable trial correct instructional mistakes jury retires way help avoid burdens unnecessary retrial objection directed verdict motion jury retires preserve claim error leary objections raised jury completed deliberations see singer lopez cf oil request instruction jury retires preserve objection instruction actually given otherwise district judges speculate sorts objections might implied request instruction issue rulings implied objections defendant never intends raise rule contradict rule mandate party state distinctly grounds objection petitioner voice objections instructions decision forms raises jury retired see app rule read literally bar review petitioner claim error decisions instead held appellate may conduct limited review plain error fed rule crim proc johnson olano lopez supra namet petitioner however contends federal death penalty act creates exception relies language act providing appellate shall remand case finds sentence death imposed influence passion prejudice arbitrary factor according petitioner alleged jury confusion available sentencing options arbitrary factor thus warrants resentencing even properly preserve objection argument rests untenable reading act statute explicitly announce exception review congressional intent create exception inferred overall scheme statutory language must read context phrase gathers meaning words around jarecki searle see also gustafson alloyd subsection petitioner relies upon provides reversal warranted proceedings involved legal error requiring reversal sentence properly preserved appeal rules criminal procedure language makes clear congress sought impose timely objection requirement sentencing intend equate phrase arbitrary factor legal error petitioner broad interpretation drain independent meaning review instructions plain error review relief warranted unless error plain affects substantial rights johnson supra olano supra appellate review doctrine course circumscribed exercise power rule sparingly see young frady cf henderson kibbe rare case improper instruction justify reversal criminal conviction objection made trial appellate exercise discretion correct plain error seriously affect fairness integrity public reputation judicial proceedings olano supra internal quotation marks omitted young supra atkinson petitioner argument depends premise instructions decision forms led jury believe recommend unanimously lesser sentence falls short satisfying even first requirement doctrine see error occurred considered similar claims allegedly ambiguous instructions caused jury confusion see victor nebraska estelle mcguire boyde california proper standard reviewing claims whether reasonable likelihood jury applied challenged instruction way violates constitution estelle supra quoting boyde supra see also victor supra applying reasonable likelihood standard direct review state criminal conviction reasonable likelihood jury applied instructions incorrectly district expressly inform jury impose lesser sentence case deadlock simply told jury recommended lesser sentence impose sentence authorized law app district expressly require jury select decision form reach agreement instead exhorted jury discuss issue punishment one another effort reach agreement notwithstanding absence explicit instruction consequences nonunanimity petitioner identifies several passages believes support inference jury confused point trains portion instructions telling jury decide sentence recommend sentence death life without possibility release petitioner argues statement coupled two earlier references lesser sentence option caused jury infer district impose lesser sentence unanimously agree sentence death life without possibility release maintains inference strengthened later instruction order bring back verdict recommending punishment death life without possibility release twelve must unanimously vote favor specific penalty according petitioner failure mention lesser sentence option statement strongly implied contradistinction first two options lesser sentence option require jury unanimity petitioner parses passages finely decisions repeatedly cautioned instructions must evaluated isolation context entire charge see bryan park cupp naughten boyd agree fifth circuit passages viewed context entire instructions lack ambiguity given reading petitioner advances see previously held instructions might ambiguous abstract cured read conjunction instructions bryan supra victor supra estelle supra petitioner claim far weaker evaluated bryan victor estelle jury case received explicit instruction unanimous prior admonition jury concern ultimate sentence recommend death life without possibility release trial expressly instructed jury unambiguous language sentencing recommendation unanimous vote specifically stated jury unanimous vote shall recommend whether defendant sentenced death sentenced life imprisonment without possibility release sentenced lesser sentence app instructions contrast specified jury act unanimously example district explicitly told jury findings mitigating circumstances unlike aggravating circumstances unanimous sure district used phrase unanimously frequently read alongside unambiguous charge sentencing recommendation unanimous instructions explicitly identifying jury need unanimous passages identified petitioner create reasonable likelihood jury believed deadlock cause district impose lesser sentence petitioner also relies alleged ambiguities decision forms explanatory instructions stresses fact decision form lesser sentence recommendation unlike decision forms death sentence life without possibility release contain phrase unanimous vote required foreperson signature features decision form according petitioner led jury conclude nonunanimity result lesser sentence according petitioner instructions accompanying decision form unlike respecting decision forms mention unanimity thereby increasing likelihood confusion respect aspect petitioner argument agree fifth circuit lthough verdict forms standing alone persuaded jury conclude unanimity required lesser sentence option confusion created verdict forms clarified considered light entire jury instruction district explicit instruction jury unanimous exhortation jury discuss punishment attempt reach agreement app make doubtful jury thought compelled employ decision form event disagreement petitioner also places much weight fact decision form required foreperson signature although contained space foreperson signature form like others used phrase jury recommend thereby signaling form represented jury recommendation moreover elsewhere jury foreperson alone signed jury forms indicate jury unanimous agreement specifically jury foreperson signed special findings form jury required indicate unanimous agreement aggravating factor proved beyond reasonable doubt circumstances think decision forms accompanying instructions created reasonable likelihood confusion effect nonunanimity even assuming arguendo error occurred plain petitioner show affected substantial rights confusion among jurors effect lesser sentence recommendation allayed district admonition jury concern effect recommendation see supra quoting app jurors presumed followed instructions see shannon richardson marsh even jurors lingering doubts effect deadlock therefore instructions made clear set aside concerns either report unable reach agreement recommend lesser sentence believed option moreover even assuming jurors confused consequences deadlock petitioner show confusion necessarily worked detriment likely jurors loathe recommend lesser sentence compromised sentence life imprisonment death sentence effect alleged error uncertain defendant meet burden showing error actually affected substantial rights cf romano romano considered similar argument namely jurors disregarded trial judge instructions given undue weight certain evidence rejecting argument noted even assuming jury disregarded trial judge instructions seems equally plausible evidence made jurors inclined impose death sentence made less inclined ibid speculation effect lesser sentence recommendation like evidence romano indeterminate effect outcome proceeding conclude alleged error district instructions affected petitioner substantial rights see park lopez iii apart claimed instructional error petitioner argues nonstatutory aggravating factors found considered jury see supra vague overbroad duplicative violation eighth amendment district error allowing jury consider harmless beyond reasonable doubt eighth amendment appeals correctly recognized see permits capital sentencing juries consider evidence relating victim personal characteristics emotional impact murder victim family deciding whether eligible defendant receive death sentence see payne tennessee state may legitimately conclude evidence victim impact murder victim family relevant jury decision whether death penalty imposed reason treat evidence differently relevant evidence treated petitioner dispute general matter evidence appropriate sentencing jury consideration see reply brief petitioner objection two nonstatutory aggravating factors duplicative vague overbroad render use case unconstitutional point fifth circuit agreed although ultimately ruled government favor ground alleged error harmless beyond reasonable doubt id government renews argument nonstatutory aggravators case constitutionally valid oral argument however suggested case comes us assumption nonstatutory aggravating factors invalid government question tr oral arg prevailing party government entitled defend judgment ground properly raised see el paso natural gas neztsosie slip northwest airlines county kent prevailing party need defend judgment ground properly raised long party seeks preserve change judgment suggested granted certiorari government rephrasing petitioner questions third question whether appeals correctly held submission invalid nonstatutory aggravating factors harmless beyond reasonable doubt presumes error must assume nonstatutory aggravating factors erroneous tr oral arg convinced reformulated question presumes error question whether nonstatutory aggravating factors constitutional fairly included within third question presented might answer question hether appeals correctly held submission invalid nonstatutory aggravating factors harmless beyond reasonable doubt explaining fifth circuit incorrect holding error without doubt government done better call attention fact planned argue nonstatutory aggravating factors valid petitioning stage affirmatively concede nonstatutory aggravators invalid see brief opposition absent concession think government argument properly presented first address petitioner contention two nonstatutory aggravating factors impermissibly duplicative fifth circuit reasoned plain meaning term personal characteristics used nonstatutory aggravator necessarily includes young age slight stature background unfamiliarity jury asked consider problem thought duplication led double counting aggravating factors following tenth circuit decision mccullah fifth circuit view weighing scheme double counting tendency skew process give rise risk arbitrary thus unconstitutional death sentence fifth circuit words may thumb scale favor death jury asked weigh aggravating factor twice ibid never held aggravating factors duplicative render constitutionally invalid passed double counting theory tenth circuit advanced mccullah fifth circuit appears followed said weighing process may impermissibly skewed sentencing jury considers invalid factor see stringer black petitioner argument reasoning fifth tenth circuits us reach quite different proposition two aggravating factors duplicative weighing process necessarily skewed factors therefore invalid even accepting sake argument petitioner double counting theory nevertheless several problems fifth circuit application theory case phrase personal characteristics used factor obviously include specific personal characteristics listed young age slight stature background unfamiliarity san angelo especially light fact went refer impact crime victim family context considering effect crime victim family natural understand personal characteristics refer aspects victim character personality family miss important extent ambiguity arising factors drafted government argument jury made clear went entirely different areas aggravation former clearly went victim vulnerability latter captured victim individual uniqueness effect crime family see record ou consider victim young age slight stature background unfamiliarity san angelo area barely five feet tall weighs approximately pounds ideal victim id ou consider victim personal characteristics effects instant offense family heard young woman heard mother heard friends knew special unique loving caring lot offer world even phrase personal characteristics used factor understood include specific personal characteristics listed factors whole duplicative best certain evidence relevant two different aggravating factors moreover risk weighing process skewed eliminated district instruction jury simply count number aggravating mitigating factors reach decision based number greater rather consider weight value factor app also view fifth circuit incorrectly concluded factors unconstitutionally vague view nonstatutory aggravating factors challenged fail ed guide jury discretion distinguish murder murder appeals relying decision maynard cartwright also opinion use terms background personal characteristics unfamiliarity without definition instruction left jury discretion internal quotation marks omitted ensuring sentence death infected bias caprice controlling objective examine eligibility selection factors vagueness tuilaepa california vagueness review however quite deferential ibid long aggravating factor core meaning criminal juries capable understanding pass constitutional muster ibid assessed deferential standard factors challenged surely vague jury difficulty understanding factor designed ask consider whether victim especially vulnerable petitioner attack difficulty comprehending factor asked consider victim personal traits effect crime family even factors written somewhat vague fifth circuit wrong conclude factors given definition see explained government argument made absolutely clear nonstatutory factor meant finally turn petitioner contention challenged nonstatutory factors overbroad aggravating factor overbroad sentencing jury fairly conclude aggravating circumstance applies every defendant eligible death penalty arave creech however specifically considered means factor overbroad important selection purposes especially sets forth victim vulnerability victim impact evidence course every murder impact victim family friends victims often chosen vulnerability might seem factors apply every eligible defendant thus fall within eighth amendment proscription overbroad factors correct decided payne even though concepts victim impact victim vulnerability may well relevant every case evidence victim vulnerability victim impact particular case inherently individualized evidence surely relevant selection phase decision given sentencer consider circumstances crime deciding whether impose death penalty see tuilaepa common importance eligibility selection stages process neutral principled guard bias caprice sentencing decision id long victim vulnerability victim impact factors used direct jury individual circumstances case think principle disturbed factors directed jury evidence specific case think overbroad way offended constitution error case rests loose drafting nonstatutory aggravating factors made clear victim vulnerability victim impact evidence appropriate subjects capital sentencer consideration assuming use loosely drafted factors indeed error conclude error harmless review death sentence may performed least two different ways appellate may choose consider whether absent invalid factor jury reached verdict may choose instead consider whether result invalid aggravating factor precisely defined see clemons mississippi fifth circuit chose perform first sort analysis ultimately concluded jury returned recommendation death even considered two supposedly invalid aggravating factors removing offensive aggravating factors balance left two statutory aggravating factors eleven mitigating factors consider deciding whether beyond reasonable doubt death sentence imposed invalid aggravating factors never submitted jury sentencing hearing government placed great emphasis two statutory aggravating factors found unanimously jury jones caused death victim commission offense kidnapping offense committed especially heinous cruel depraved manner involved torture serious physical abuse victim part two special findings form jury failed find government proved least one statutory aggravating factors beyond reasonable doubt deliberations ceased leaving jury powerless recommend death penalty therefore ability jury recommend death penalty hinged finding least one statutory aggravating factor conversely jury findings regarding aggravating factors required jury recommend death penalty removing two aggravating factors mix conclude two remaining statutory aggravating factors unanimously found jury support sentence death even considering eleven mitigating factors found one jurors consequently error harmless death sentence imposed beyond reasonable doubt invalid aggravating factors never submitted jury petitioner claims analysis perfunctory infirm argument largely based following passage clemons circumstances require detailed explanation based record us possibly agree error giving invalid especially heinous instruction harmless emphasis added clemons however involved quite different facts especially heinous aggravating factor determined unconstitutionally vague remaining aggravating factor murder committed robbery pecuniary gain state repeatedly emphasized invalid factor said little valid aggravator see despite mississippi said likewise opinion beyond reasonable doubt jury verdict without especially heinous atrocious cruel aggravating circumstance ibid quoting clemons state miss quite understandably required detailed explanation based record circumstances detailed explanation record required clemons may necessary case cf sochor florida federal requirement state courts adopt particular formulaic indication review harmless error pass scrutiny even fifth circuit analysis perfunctory think plain alternative mode analysis error indeed harmless beyond reasonable doubt see federal death sentences set aside basis errors harmless beyond reasonable doubt factors precisely defined writing jury surely reached recommendation government argument jury see record cured nonstatutory factors infirmity written satisfied jury case actually understood factor designed put therefore doubt jury reached conclusion aggravators precisely defined writing foregoing reasons judgment appeals affirmed ordered louis jones petitioner writ certiorari appeals fifth circuit june justice ginsburg justice stevens justice souter join justice breyer joins parts ii iii dissenting federal death penalty act fdpa ed supp iii establishes complex regime applicable government seeks ultimate penalty defendant found guilty offense potentially punishable death case pathmarking first application fdpa two questions comprehend petitioner core objections warrant prime attention first congress specifies two sentencing options offense death life without possibility release must jury told exactly death decision stand despite misleading trial lesser sentence instructions specifically instructions open construction lack unanimous jury vote either life death allow judge impose sentence less severe life prison second jury unable agree unanimous recommendation case death life without possibility release sentencing options must judge impose life sentence judge required permitted impanel second jury make life death decision appeals fifth circuit confronted two questions resolved prosecution fifth circuit also tolerated trial submission two nonstatutory aggravating factors jury although appeals found factors duplicative vague lower courts disposition death despite flawed trial proceedings tolerance flaws disregard basic guide ccurate sentencing information indispensable prerequisite jury determination whether defendant shall live die gregg georgia joint opinion stewart powell stevens indispensable prerequisite satisfied case reverse remand life death decision may made accurately informed trier authorizing federal death penalty small category cases congress enacted comprehensive death penalty legislation see fdpa stat applicable existing newly declared death eligible offenses see stat fdpa prescribes procedures principally provides separate sentencing hearing whenever government seeks death penalty defendants found guilty covered offense see homicide cases act instructs jury must respond sequentially three inquiries imposition death penalty requires unanimity three first jury determines whether killing death resulting defendant intentional engagement activity see second jury decides aggravating factors statutory nonstatutory proved beyond reasonable doubt see third jury finds least one statutory aggravators proposed government jury determines whether aggravating factors sufficiently outweigh mitigating factors warrant death sentence absent mitigating factors whether aggravators alone warrant sentence mitigating factors seven statutory others tending death sentence individually determined juror unlike aggravating factors jury must unanimously agree beyond reasonable doubt standard mitigating factor may considered jury weighing process one juror finds factor proved preponderance evidence see weighing numeric perceived significance number aggravating mitigating factors determines decision ii louis jones crime atrocious commission followed jones precipitous decline fortune termination army career february jones forcibly abducted private tracie joy mcbride gunpoint goodfellow air force base san angelo texas course abduction jones struck private michael alan peacock handgun leaving unconscious thereafter jones sexually assaulted killed mcbride leaving body bridge located miles outside san angelo see fall jones tried jury convicted kidnaping death resulting violation see separate sentencing hearing followed determine whether jones punished death see id close sentencing hearing jones submitted proposed jury instructions jones instruction advised jury must sentence jones life without possibility release rather death one persuaded justice demands jones execution app jones instruction advised jury unable agree unanimous decision sentence imposed jury inform judge impose sentence life imprisonment without possibility release id proposed instructions nos although inartfully drawn unquestionably sought convey core information jurors agree death sentencing option jury judge life without possibility release jones also objected vagueness grounds two three nonstatutory aggravators proposed government see id district rejected jones proposed instructions nos refused strike modify nonstatutory aggravators jones objected see id trial instructed jury recommend death life without possibility release lesser sentence event decide lesser sentence see id jury apparently found case close rejected three seven aggravators government urged see one jurors found specific mitigating factors submitted jones see ibid jury deliberated day half returning verdict recommending death jones moved new trial ground supported postsentence juror statements instructions misled jurors specifically jones urged charge led jurors believe deadlock result lesser sentence avoid outcome jones asserted jurors favored life without possibility release changed votes approve death verdict see app vote change jones maintained hypothetical backed juror statements see id district denied new trial motion id appeals fifth circuit affirmed death sentence appeals ruled first district correctly refused instruct jury deadlock yield sentence life imprisonment without possibility release jury deadlock fdpa fifth circuit stated occasion automatic life sentence instead declared deadlock necessitate second sentencing hearing newly impaneled jury id appeals observed lthough use instructions inform jury consequences hung jury ha affirmed federal courts never affirmatively required give instructions id next appeals determined instructions read entirety led reasonable jury conclude result imposition lesser sentence id jones rely juror statements fifth circuit held show jury fact misled sentenced death see id although federal rule evidence applicable fdpa proceedings see reasons allowing jurors undermine verdicts trial proceedings apply equal force sentencing hearings appeals view district err plainly conveying jury misinformation three sentencing options available death life imprisonment without release lesser sentence see noting fdpa takes account three possibilities see kidnaping statute authorizes two sentences death life imprisonment see fifth circuit acknowledged district erred giving jury lesser sentence option substantive kidnaping statute takes precedence death penalty sentencing provisions limits options death life imprisonment without release appeals nevertheless concluded district error plain fdpa new prior opinion addressed question hence clearly established law place time jones sentencing hearing ibid fifth circuit also considered jones challenge nonstatutory aggravators presented jury government request held two found jury victim young age slight stature background unfamiliarity san angelo texas personal characteristics effect offense family duplicative also impermissibly vague overbroad id declined upset death verdict however believed death sentence imposed beyond reasonable doubt invalid aggravating factors never submitted jury id iii governing law gave jones jury sentencing phase life without release death choice district however introduced erroneously third prospect lesser sentence app moreover told jury concerned lesser sentence might hat matter decide ibid jury choice clouded misinformation set reasons concluding misinformation rendered jury death verdict unreliable district instructed jury ou jury unanimous vote shall recommend whether defendant sentenced death sentenced life imprisonment without possibility release sentenced lesser sentence recommend lesser sentence imposed required impose sentence authorized law deciding recommendation make concerned question sentence defendant might receive event determine recommend death sentence sentence life without possibility release matter decide event conclude sentence death life without possibility release recommended order bring back verdict recommending punishment death life without possibility release twelve must unanimously vote favor specific penalty app instructions misinformed jury two intertwined respects first wrongly identified lesser sentence option second instructions open reading absent juror unanimity death life without release district impose lesser sentence fifth circuit submission acknowledged charge error see ante section defines crime governs calls death life imprisonment nothing less neither parole credits reduce life sentence see brief agree petitioner sentences imposed death life without release kidnapping statute authorizes death life imprisonment neither parole credits reduce life sentence third option listed fdpa provision lesser sentence available substantive statute confine sentence life death fifth circuit found error obvious clear readily apparent conspicuous disagree rank district misconstruction plain error fdpa unquestionably procedural statute alter substantive prescriptions serious doubt existed score flawed charge simply include nonexistent option understood convey absent juror unanimity lesser sentence might imposed message came instructions jury must unanimous bring back verdict recommending punishment death life without possibility release app lesser sentence possible id jury concerned sentence defendant might receive event determine recommend death sentence sentence life without possibility release ibid jones proposed instructions sentenced life without possibility release jury agree death see supra nn made apparent sought close door flawed charge left open least reasonable likelihood flawed charge tainted jury deliberations see boyde california claim instruction subject erroneous interpretation proper inquiry whether reasonable likelihood jury applied challenged instruction erroneously recently noted jury may swayed toward death believes defendant otherwise may serve less life prison see simmons south carolina plurality opinion entirely reasonable sentencing jury view defendant eligible parole greater threat society defendant jurors may persuaded switch life death ward juror wanted chance lesser sentence judge common fifth circuit solicitor general insists likely jurors supporting death persuaded jurors give way vote life sentence see ante brief demur say position suffice potential confuse existed instructions tilted jury toward death instructions introduce level uncertainty unreliability factfinding process tolerated capital case beck alabama capital sentencing game chicken life death turns happenstance whether particular life jurors death jurors case first give order avoid perceived third sentencing outcome unacceptable either set jurors reply brief fifth circuit held district obliged tell jury jones default penalty life without possibility release part appeals viewed instruction substantively correct fifth circuit comprehended law jury deadlocked second sentencing hearing held front second jury impaneled purpose id fdpa seems clear provide second shot death dispositive provision read act first shall sentence defendant death life imprisonment without possibility release jury recommends continues otherwise shall impose lesser sentence authorized law notwithstanding law maximum term imprisonment offense life imprisonment may impose sentence life imprisonment without possibility release therwise clause requiring judge sentencing becomes operative jury fails make unanimous recommendation close deliberations fifth circuit attention deflected path provides sentencing hearing jury impaneled purpose hearing jury determined defendant guilt discharged good cause discharge good cause however reasonably read cover extension juror disqualification due exposure prejudicial extrinsic information illness provision read expansively encompass failure reach unanimous life death decision government refers background rule allowing retrial jury unable reach verdict urges fdpa read light rule brief retrial prevailing rule capital proceedings government survey state laws shows life death cases require judge sentencing jury deadlocked see id app brief identifying imposes sentence upon deadlock three new sentencing hearing possible see also acker lanier law discretion capital jury death penalty statutes proposals reform crim bull capital juries final sentencing authority deadlocked sentencing jury transformed lifelocked jury jury inability produce unanimous verdict results defendant sentenced life imprisonment life imprisonment without parole footnotes omitted furthermore time congress adopted fdpa identical language predecessor abuse death penalty act construed mandate sentencing upon jury deadlock see chandler jury recommend death district sentences defendant pitera supp edny absent recommendation death must sentence house report suggests congress understood approved construction see jury unanimous judge shall impose sentence pursuant section iv piled key instructional error trial presented jury duplicative vague nonstatutory aggravating factors told jury consider aggravators established beyond reasonable doubt factors victim young age slight stature background unfamiliarity san angelo texas victim personal characteristics effect instant offense family jury found see ibid district clarify meaning terms background personal characteristics see id notably term personal characteristics aggravator necessarily included young age slight stature background unfamiliarity factors jury told consider aggravator attribute genuine disagreement proposition see ante double counting aggravators creates risk arbitrary death sentence see also mccullah double counting aggravating factors especially weighing scheme tendency skew weighing process creates risk death sentence imposed fifth circuit considered district lapse inconsequential concluding two remaining statutory aggravating factors support sentence death even considering eleven mitigating factors appellate courts hesitate assert confidence elimination improperly considered aggravating circumstances possibly affect balance barclay florida adding overlapping aggravators disturbing misinformation conveyed charge see basis concluding made difference thumb removed death side scale quoting stringer black fifth circuit tolerance error case refusal face reconciled recognition woodson north carolina plurality opinion death qualitatively different jury weighing process infected trial misperceptions law legitimacy ensuing death sentence hinge defense counsel shortfalls reviewing speculation decision jury made absent infection vacate jury sentencing decision remand case new sentencing hearing one proceed accuracy superintendents fdpa demand footnotes justice scalia joins part opinion phrased special findings form returned jury statutory aggravating factors read defendant louis jones caused death tracie joy mcbride injury resulting death tracie joy mcbride occurred commission offense kidnapping defendant louis jones committed offense especially heinous cruel depraved manner involved torture serious physical abuse tracie joy mcbride app term nonstatutory aggravating factor used refer aggravating factor specifically described section provides jury may consider whether aggravating factor notice given exists pursuant government decides seek death penalty must provide notice aggravating factors proposes prove justifying sentence death phrased special findings form nonstatutory aggravating factors read tracie joy mcbride young age slight stature background unfamiliarity san angelo texas tracie joy mcbride personal characteristics effect instant offense tracie joy mcbride family constitute aggravating factor offense app mitigating factors jury found set forth special findings form along number jurors found factor brackets follows defendant louis jones significant prior criminal record defendant louis jones capacity appreciate wrongfulness defendant conduct conform requirements law significantly impaired regardless whether capacity impaired constitute defense charge defendant louis jones committed offense severe mental emotional disturbance defendant louis jones subjected physical sexual emotional abuse child deprived sufficient parental protection needed defendant louis jones served country well desert storm grenada years army defendant louis jones likely inmate defendant louis jones remorseful crime committed defendant louis jones daughter harmed emotional trauma father execution defendant louis jones unusual substantial internally generated duress stress time offense defendant louis jones suffered numerous neurological psychological disorders time offense app seven jurors added petitioner mitigating factor without elaboration app thus approved use supplemental charge encourage jury reporting deadlocked engage deliberations see allen even capital sentencing juries see lowenfield phelps insignificant courts appeals addressed question far aware uniform rejecting argument constitution requires instruction consequences jury inability agree see coe bell green french chandler evans thompson indeed fifth circuit alternative reached conclusion case see decision forms read follows decision form jury determined sentence death imposed government failed prove beyond reasonable doubt existence required intent part defendant required aggravating factor decision form based upon consideration whether aggravating factor factors found exist sufficiently outweigh mitigating factor factors found exist absence mitigating factors whether aggravating factor factors sufficient justify sentence death recommend unanimous vote sentence death imposed decision form jury recommend unanimous verdict sentence life imprisonment without possibility release decision form jury recommend lesser sentence app petitioner argue district instructions lesser sentence option standing alone constituted reversible error although parties agree jury found petitioner guilty kidnaping resulting death possible sentences death life sentence see brief petitioner brief see also petitioner made argument fifth circuit however concluded instructions lesser sentence option rise level plain error petitioner concedes boyde standard applies extent advancing constitutional claim relying prior decision andres contends lenient standard applies extent seeks relief statute directly decisions boyde estelle however foreclose reading andres boyde noted prior decisions including andres less clear articulating single workable standard evaluating claims instruction prevented jury consideration constitutionally relevant evidence order supply single formulation courts employ deciding kind federal question announced reasonable likelihood standard made point later estelle noting boyde made point settle single standard review jury instructions reasonable likelihood standard considering many different phrasings previously used relevant portion instruction read also recall previously told twelve unanimously agree particular aggravating circumstance proved beyond reasonable doubt consider quite opposite true regard mitigating factors finding respect mitigating factor may made one members jury member finds preponderance evidence existence mitigating factor may consider factor established weighing aggravating mitigating factors regardless number jurors agree mitigating factor established app petitioner also urges us take cognizance two affidavits prepared jury returned sentencing recommendation one affidavit attached petitioner new trial motion executed investigator federal public defender juror contacted public defender office affidavit attached petitioner motion reconsider district order denying motion new trial executed one jurors fifth circuit ruled petitioner rely affidavits undermine jury sentencing recommendation petitioner raise independent determination questions presented believe issue fairly included within therefore decline review ruling fifth circuit see rule berkemer mccarty dissent treat aspect government argument waived post justice ginsburg explained unanimous caterpillar lewis rule nonjurisdictional argument raised respondent brief opposition petition writ certiorari may deemed waived id emphasis added done issue raised brief opposition predicate intelligent resolution question presented ohio robinette internal quotation marks omitted see also caterpillar instances treated issue raised opposition fairly included within question presented certainly case assessing error including whether error essential intelligent resolution whether error harmless moreover caterpillar parties addressed issue briefs oral argument ibid contrast cases dissent looks support position good reasons decline exercise discretion roberts galen inc per curiam claims declined consider appear sufficiently developed us assess south central bell telephone alabama slip op argument respondent raised first time merits brief argument normally expect notice especially unlike case respondent argument appear raised considered tenth circuit decision subsequent mccullah emphasized factors impermissibly overlap unless one necessarily subsumes cooks ward petitioner argues term personal characteristics vague jury may thought consider victim race petitioner race factor light remainder factor government argument respect factor fail see possibility event accordance death penalty act explicit command district instructed jury consider race reaching decision app jurors presumed followed instructions see richardson marsh reiterate point made tuilaepa california held quite similar factors vague see maynard cartwright whether murder especially heinous atrocious cruel upholding numerous factors vagueness challenges see collecting cases footnotes granted certiorari three questions phrased whether petitioner entitled jury instruction jury failure agree sentencing recommendation automatically result sentence life imprisonment without possibility release whether reasonable likelihood jury instructions led jury believe deadlock penalty recommendation automatically result sentence less severe life imprisonment whether appeals correctly held submission invalid aggravating factors harmless beyond reasonable doubt see also brief think fair principled ante read indigent petitioner arguments questions presented willingness overlook loose drafting consistently shows evaluating government case see ante see also ante adopting government merits brief arguments although arguments mentioned brief opposition predecessor abuse act authorized death penalty murder resulting certain offenses see fdpa procedures apply federal offense sentence death provided repeal act differs respects see mandatory appointment habeas counsel provision investigative expert services congress enacted three statutes authorizing death penalty antihijacking act stat repealed fdpa stat air piracy criminal law procedure technical amendments act stat witness killing department defense authorization act stat amending uniform military justice act establish weighing procedures martials considering death penalty espionage earlier federal statutes authorizing death penalty remained books invoked following decision furman georgia per curiam led hiatus death penalty adjudications see little federal death penalty history thoughts department justice role ford urb see id estimating fdpa applies least offenses sentencing hearing jury unless defendant approval government moves hearing see section allows death penalty defendant found guilty homicide defendant determined beyond reasonable doubt sentencing hearing intentionally killed victim intentionally inflicted serious bodily injury resulted death victim intentionally participated act contemplating life person taken intending lethal force used connection person one participants offense victim died direct result act intentionally specifically engaged act violence knowing act created grave risk death person one participants offense participation act constituted reckless disregard human life victim died direct result act fdpa lists aggravating factors homicide allows jury consider whether aggravating factor notice given government exists nonstatutory aggravators may include factors concerning effect offense victim victim family see little supra weighing requires qualitative quantitative evaluation internal quotation marks omitted jones instruction read relevant part fair impartial consideration evidence case one persuaded justice demands jones execution jury must return decision capital punishment must fix jones punishment life prison without possibility release app jones instruction read relevant part even single juror persuaded beyond reasonable doubt jones execution required case entire jury must render decision death event jury must fix punishment life prison without possibility release unless twelve members jury determine jones receive death penalty impose sentence life imprisonment without possibility release event due deliberation reflection jury unable agree unanimous decision sentence imposed advise impose sentence life imprisonment without possibility release event unable agree life without possibility release death unanimous sentence less life without possibility release report vote sentence defendant life without possibility release app defendant objections charge jones particularly direct ed attention proposed instruction id jury rejected following aggravators crime involved substantial planning premeditation see crime created grave risk person victim see jones posed future danger lives safety persons found aggravators jones killed victim commission kidnaping see crime especially heinous cruel depraved see victim young age slight stature background unfamiliarity san angelo texas victim personal characteristics effect offense family see nn one jurors found jones ten specific mitigating factors none found eleventh stating factors defendant background character militate death penalty see seven found existence additional mitigating factor submitted jones see problem describes failure give jury bit information might possibly influence individual juror voting behavior ante rather jury affirmatively misled cf ante repeated misinformation charge decision forms conveyed verdict forms compounded error allowing jurors return decision statement jury recommend lesser sentence app jones press district identification lesser sentence option independent ground reversal error however essential component argument misinformation conveyed district led jury believe deadlock result sentence justice breyer believe district submission jury instructions amounted plain error view judge failure submit defense proposed instruction amounted abuse discretion proposed instruction legally correct judge failure give likely rested upon erroneous view law corrected false impression created remaining instructions see cooter gell hartmarx app order denying defendant motion new trial cf fifth circuit noted jones counsel proposed language referring lesser sentence reviewed plain error rather discounting error invited district use defense counsel requested language although jones counsel propose lesser sentence language see app jones proposed instructions nos made one thing clear view jury judge required impose life without possibility release jury agree death see supra nn appears recognize beyond genuine debate jones possible sentences death life sentence ante face district lesser sentence instructions four times given jury difficult comprehend see error occurred see ante general rule government observes repeats party requested instruction given relieved requirement state distinctly objection instruction given brief quoting wright federal practice procedure ed see also ante also true however requirement objections employed woodenly applied application serve ends designed rather made trap unwary wright supra jones proposed instruction default sentence life without possibility release apprised district government essential position precedent supports fifth circuit affirmation statements attesting juror understanding instructions inadmissible see statements jones submitted assert apprehension lesser sentence judge might impose fact caused jurors vote death sentence see app matter grave discount statements altogether cf jorgensen york ice machinery hand many defects jury deliberation require reversal nothing evidence shall competent prove facts facts require verdict set aside concededly facts misinformation district failure repeat unanimity requirement time mentioned jury sentencing options advise consequences deadlocked jury harmful error heart jones case therefore see cause dispute eighth amendment require jury instructed consequences failure agree ante judgment however obliged life death case make clear jury jones minimum sentence life without possibility release oral argument counsel maintained prosecutor jury deadlocked request new panel allow judge decide sentence see tr oral arg done government maintained event second deadlock obligation impose sentence see id like fdpa abuse act provides new sentencing jury jury discharged good cause iii immediately providing death sentence upon jury recommendation therwise shall impose sentence death authorized law abuse act unlike fdpa binding recommendation jury make death counsel specifically objected factors see app government argues contrary fifth circuit conclusion aggravating factors duplicative vague overbroad see brief granted certiorari government reformulated questions presumed incorrectness aggravators see supra brief opposition government challenge fifth circuit determination error focused solely whether error harmless nevertheless addresses government newly raised argument see ante hold government tighter rein dismiss tardy argument waived see roberts galen per curiam south central bell telephone alabama cf rule evident issue held back government predicate intelligent resolution question presented ohio robinette internal quotation marks omitted see ante treats two issues separate independent ruling first error proceeds assume error next concludes error harmless either holding support disposition see hasting holding presumed error harmless rather deciding whether fact error explains question review granted assumed error question resolved whether analysis applied id stevens concurring decide case ground error without reaching harmless error question