390
Syllabus
tion or punishment for criminal activity where that activity has been considered at sentencing for a separate crime. Williams governs this case, for it makes no difference in this context whether the enhancement occurred in the first or second proceeding. Here, as in Williams, the uncharged criminal conduct was used to enhance Witte's sentence within the range authorized by statute. Pp. 395-400. (b) Other decisions of this Court reinforce the conclusion reached here. In repeatedly upholding recidivism statutes, the Court has rejected double jeopardy challenges because enhanced punishment imposed for a later offense is viewed as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one. See, e. g., Gryger v. Burke, 334 U. S. 728, 732. In addition, by authorizing the consideration of offender-specific information at sentencing without the procedural protections attendant at a criminal trial, the Court's cases necessarily imply that such consideration does not result in "punishment" for such conduct. See, e. g., McMillan v. Pennsylvania, 477 U. S. 79. Pp. 400-401. (c) Contrary to Witte's suggestion, the Guidelines do not somehow change the constitutional analysis. A defendant has not been "punished" any more for double jeopardy purposes when relevant conduct is included in the calculation of his offense level under the Guidelines than when a pre-Guidelines court, in its discretion, took similar uncharged conduct into account. In each case, the defendant is still being punished, for double jeopardy purposes, only for the offense of conviction. Pp. 401-404. (d) The Guidelines include significant safeguards to protect Witte against having the length of his second sentence multiplied by duplicative consideration of the same criminal conduct already considered as "relevant conduct" for the marijuana sentence. And he would be able to vindicate his interests through appropriate appeals should the Guidelines be misapplied in any future sentencing proceeding. Even if the Sentencing Commission had not formalized sentencing for multiple convictions, district courts retain enough flexibility under the Guidelines to take into account the fact that conduct underlying the offense at issue has previously been taken into account in sentencing for another offense. Pp. 404-406.
25 F. 3d 250, affirmed.
O'Connor, J., delivered the opinion of the Court, in Parts I, II, and IV of which Rehnquist, C. J., and Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and in Part III of which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in
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