Cite as: 523 U. S. 155 (1998)
Syllabus
first and second degree, Congress has carefully decided just when it does, and does not, intend for murder to be punishable by death, a major way in which the Louisiana statute (which provides the death penalty) differs from the federal second-degree provision (which does not); that, when writing and amending the ACA, Congress has referred to murder as an example of a crime covered by, not as an example of a gap in, federal law; that § 1111 applies only on federal enclaves, so that assimilation of Louisiana law would treat enclave residents differently from those living elsewhere in that State, by subjecting them to two sets of "territorial" criminal laws in addition to the general federal criminal laws that apply nationwide; and that there apparently is not a single reported case in which a federal court has used the ACA to assimilate a state murder law. Given all these considerations, there is no gap for Louisiana's statute to fill. Pp. 166-172.
2. Lewis is entitled to resentencing. As she argues and the Government concedes, the Fifth Circuit erred in affirming her life sentence because § 1111, unlike the Louisiana statute, does not make such a sentence mandatory for second-degree murder, but provides for a sentence of "any term of years or life." Moreover, the federal Sentencing Guidelines provide for a range of 168 to 210 months' imprisonment for a first-time offender like her who murders a "vulnerable victim." Although a judge could impose a higher sentence by departing from the Guidelines range, it is for the District Court to make such a determination in the first instance. Pp. 172-173.
92 F. 3d 1371, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 173. Kennedy, J., filed a dissenting opinion, post, p. 180.
Frank Granger argued the cause and filed briefs for petitioner.
Malcolm L. Stewart argued the cause for the United States. With him on the brief were Acting Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Deborah Watson.*
*John Lanahan and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
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