406
Scalia, J., concurring in judgment
that should result in a sentence different from that described.' " USSG § 5K2.0 (policy statement). This departure power is also available to protect against petitioner's second major practical concern: that a second sentence for the same relevant conduct may deprive him of the effect of the downward departure under § 5K1.1 of the Guidelines for substantial assistance to the Government, which reduced his first sentence significantly. Should petitioner be convicted of the cocaine charges, he will be free to put his argument concerning the unusual facts of this case to the sentencing judge as a basis for discretionary downward departure.
IV
Because consideration of relevant conduct in determining a defendant's sentence within the legislatively authorized punishment range does not constitute punishment for that conduct, the instant prosecution does not violate the Double Jeopardy Clause's prohibition against the imposition of multiple punishments for the same offense. Accordingly, the judgment of the Court of Appeals is
Affirmed.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
This is one of those areas in which I believe our jurisprudence is not only wrong but unworkable as well, and so persist in my refusal to give that jurisprudence stare decisis effect. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 982-984, 993-994 (1992) (Scalia, J., concurring in judgment in part and dissenting in part); Walton v. Arizona, 497 U. S. 639, 673 (1990) (Scalia, J., concurring in part and concurring in judgment).
It is not true that (as the Court claims) "the language of the Double Jeopardy Clause protects against . . . the actual imposition of two punishments for the same offense." Ante, at 396. What the Clause says is that no person "shall . . . be
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