776
Breyer, J., dissenting
cross-reference to the classifying subsection that no longer served any significant purpose.
This history may help to explain why Congress did not directly provide a clear cross-reference in the career offender subsection. But it does not itself provide such a reference. A reader still might see in that subsection a predominating congressional focus upon increasing all career offenders' real-time terms to a typical real-time maximum term (in which case it is natural to read the subsection as omitting statutory recidivism provisions) or one might see in it a predominating congressional insistence upon further major increases in the real-time maximum terms themselves (in which case it is natural to read the subsection's cross-reference as picking up statutory recidivism provisions). The subsection's language, whether read by itself, read in a broader context of sentencing law, or read against the provision's history, is consistent with either interpretation.
Finally, the majority is wrong when it argues that the Career Offender Guideline "eviscerate[s] the penalty enhancements Congress enacted in statutes such as § 841." Ante, at 760. Section 841 increases maximum penalties for recidivists, for example, for crimes involving less than 500 grams of cocaine, from 20 years to 30 years. The Commission's career offender penalties for these offenses yield sentences "at or near" the "non-recidivist" maximum. This increased statutory maximum increases what would otherwise be a statutory cap on any sentence imposed, thereby permitting the sentencing judge to sentence a recidivist to more than the statute's first offender maximum (20 years for 30 grams). Consequently, the statutory increase authorizes a higher sentence when the relevant Guideline range reaches beyond that first offender maximum (as it does in the case of some of the ranges prescribed by the Career Offender Guideline). See, e. g., USSG § 4B1.1 (table); id., ch. 5, pt. A (table). It authorizes a higher sentence when the sentencing judge faces an atypical case warranting a departure upward. See 18
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