Cite as: 520 U. S. 751 (1997)
Breyer, J., dissenting
"(B) an offense described in section 401 of the Controlled Substances Act (21 U. S. C. 841) . . . ; and
"(2) has previously been convicted of two or more [similar] prior felonies . . . ." § 994(h) (emphasis added).
This provision, for present purposes, is not quite as complicated as it appears, for the words that follow the italicized words "maximum term authorized" do not modify or explain those italicized words. Rather, they describe the kind of person whom the Commission must make certain is sentenced to a term "at or near the maximum term authorized." It is as if the statute said to the Commission: Focus upon "categories" of individuals who have previously committed two serious crimes (involving drugs or violence) and make certain that the Guidelines specify, for those "categories" of individuals, "a sentence to a term of imprisonment at or near the maximum term authorized."
The Commission has recently rewritten the Guideline so that it now imposes sentences based upon
"the maximum term of imprisonment authorized for the offense of conviction . . . not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record." USSG § 4B1.1, comment., n. 2.
To understand how the new Guideline works, consider an example: The basic drug distribution statute, 21 U. S. C. § 841, has two relevant subsections, (a) and (b). Subsection (a) makes it a crime to "possess" a "controlled substance," such as cocaine, with "intent to distribute" it. Subsection (b) sets forth penalties—both minimum and maximum penalties—for violating subsection (a). Those penalties depend primarily upon the amount of drugs at issue, but also upon recidivism. One part of subsection (b), namely, subsection (b)(1)(B), for example, specifies a minimum penalty of 5 years and a maximum penalty of 40 years where the amount of cocaine ranges from 500 grams to 5 kilograms. A later por-
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