168
Stevens, J., dissenting
at issue in these cases is not whether a defendant is being twice punished or prosecuted for the same conduct, but whether his or her initial punishment has been imposed pursuant to rules that are authorized by the statute and consistent with the Constitution.
IV
Putra's case involves "multiple offenses." She was charged with several offenses and received a sentence that was based on the judge's conclusion that she was guilty of each of these multiple offenses even though she had in fact been found guilty of only one offense. It is therefore appropriate to consider what the Sentencing Reform Act has to say about "multiple offenses."
In 28 U. S. C. § 994(l) Congress specifically directed the Commission to ensure that the Guidelines included incremental sentences for multiple offenses. That subsection provides:
"The Commission shall insure that the Guidelines promulgated . . . reflect—
"(1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of—
"(A) multiple offenses committed in the same course of conduct . . . . ; and
"(B) multiple offenses committed at different times . . . ." (Emphasis added.)
It is difficult to square this explicit statutory command to impose incremental punishment for each of the "multiple offenses" of which a defendant "is convicted" with the conclusion that Congress intended incremental punishment for each offense of which the defendant has been acquitted.5
5 Courts upholding the Guidelines' relevant conduct provisions and their application in cases such as these have tended to focus their attention exclusively on those provisions in the statute that direct courts and the Commission to consider the "nature and circumstances of the offense" in
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