Cite as: 520 U. S. 751 (1997)
Breyer, J., dissenting
ment of the offense, e. g., 18 U. S. C. § 922(g) (felon in possession of a firearm), many other important criminal statutes do not. Under the drug possession statute, for example, recidivism is not an element of the offense, but, rather, a sentencing-related circumstance that the prosecution need not charge or prove at trial. Compare 21 U. S. C. § 841(a) (defining the offense) with § 841(b) (setting penalties). Thus, one might read the statute as referring to the maximum sentences imposed for "offenses" technically defined (a reading that would leave out most statutory recidivism enhancements) or one might not. The language of the statute, even if read as referring to offenses, does not say.
Second, background sentencing law does not provide an unambiguous answer to the "authorized by what" question. That background law includes a fundamental distinction between "offense characteristics" and "offender characteristics." This distinction underlies the Guidelines' basic structure, see supra, at 764-766; it is embodied in the Commission's authorizing statute, 28 U. S. C. §§ 994(c) and (d); and it grows out of pre-Guideline sentencing law, see, e. g., Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (plurality opinion); Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). Thus, it is not surprising that the Commission should write a Career Offender Guideline that itself reflects that distinction; nor can one consider the distinction arbitrary, as if, for example, the Commission were to have picked and chosen among different offense characteristics. Cf. ante, at 759. To the contrary, this aspect of background sentencing law makes plausible a reading that sees this directive to create a generally applicable Career Offender Guideline as, in a sense, a substitute for other, more specific recidivism-based sentence enhancements already scattered throughout the Federal Criminal Code. Of course, one could also read the statute as a supplement to those provisions. But the statute itself does not tell us which reading is correct.
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