Cite as: 519 U. S. 148 (1997)
Stevens, J., dissenting
Moreover, McMillan addressed only the constitutionality of a statute the meaning of which was perfectly clear. Nothing in the text of the Sentencing Reform Act of 1984 even arguably mandates the result that the District Courts reached in these cases. Indeed, as Justice Breyer points out in his separate concurrence, ante, at 159, the Sentencing Commission unquestionably has the authority to disallow the consideration of acquitted conduct. Similarly, the Commission could have chosen to set the burden of proof for sentencing proceedings at beyond a reasonable doubt without running afoul of the enabling legislation. Given the lack of a contrary command in the statute itself, as well as the complete absence of any pre-1984 precedent for establishing the range of a permissible sentence on the basis of a fact proved only by a preponderance of the evidence, the McMillan opinion which was announced in 1986 can shed no light on the meaning of the 1984 Act.
Nor does the Court's decision in Witte v. United States, 515 U. S. 389 (1995), dictate the answer to the question presented by these cases. I continue to disagree with the conclusion reached by the Court in Witte, that the Double Jeopardy Clause does not prohibit convicting and sentencing an individual for conduct that has been decisive in determining the individual's offense level for a previous conviction. But that is a different issue from the one here. The opinion in Witte, carefully and repeatedly, confined the Court's holding to the double jeopardy context. Id., at 397 (defendant in this case "is punished, for double jeopardy purposes, only for the offense of which the defendant is convicted"); id., at 399 (disputed practice is not "punishment for that conduct within the meaning of the Double Jeopardy Clause"); id., at 404 (practice "constitutes punishment only for the offense of conviction for purposes of the double jeopardy inquiry"). What is
would have had the legal authority to impose absent consideration of the "relevant conduct."
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