158
Breyer, J., concurring
Justice Scalia, concurring.
I do not agree with the assertion in Justice Breyer's concurrence that there is no obstacle to the Sentencing Commission's reversing today's outcome by mandating disregard of the information we today hold it proper to consider. Title 28 U. S. C. § 994(b)(1) requires the Guidelines to be "consistent with all pertinent provisions of title 18, United States Code." In turn, 18 U. S. C. § 3661 provides that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." In my view, neither the Commission nor the courts have authority to decree that information which would otherwise justify enhancement of sentence or upward departure from the Guidelines may not be considered for that purpose (or may be considered only after passing some higher standard of probative worth than the Constitution and laws require) if it pertains to acquitted conduct. If the Commission believes that the rules of evidence and proof established by the Constitution and laws are inadequate, it may of course recommend changes to the Congress, cf. 28 U. S. C. § 994(w).
Justice Breyer, concurring.
I join the Court's per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.
In telling judges in ordinary cases to consider "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction," United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up
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