258
Kennedy, J., dissenting
§ 40-35-114(12) (1997) ("death . . . or serious bodily injury"); Utah Code of Judicial Admin., App. D, Form 2 (1998) ("substantial bodily injury"). Given this widespread understanding, there is nothing surprising or anomalous in the conclusion that Congress chose to treat serious bodily injury and resulting death as sentencing factors in § 2119.
In addition, the plain reading of § 2119 is reinforced by common patterns of statutory drafting. For example, in one established statutory model, Congress defines the elements of an offense in an initial paragraph ending with the phrase "shall be punished as provided in" a separate subsection. The subsection provides for graded sentencing ranges, predicated upon specific findings (such as serious bodily injury or death). See, e. g., 8 U. S. C. § 1324(a)(1). Section 2119 follows a similar logic. It is true that clauses (1)-(3) are not separated into a separate subsection, thus giving rise to the textual problem we must resolve. Congress does not always separate sentencing factors into separate subsections, however. See, e. g., 18 U. S. C. § 1347 (1994 ed., Supp. III) (health-care fraud; enhanced penalties if the violation "results in serious bodily injury" or "results in death"). As with statutes like § 1324, the structure of § 2119 suggests a design which defines the offense first and the punishment afterward.
In addition, there is some significance in the use of the active voice in the main paragraph and the passive voice in clauses (2) and (3) of § 2119. In the more common practice, criminal statutes use the active voice to define prohibited conduct. See, e. g., 18 U. S. C. § 1116 (1994 ed., Supp. III) ("[w]hoever kills or attempts to kill"); § 2114 ("assaults," "robs or attempts to rob," "receives, possesses, conceals, or disposes"); Tex. Penal Code Ann. §§ 29.03(a)(1), (2) (1994) (aggravated robbery; "causes serious bodily injury," or "uses or exhibits a deadly weapon"); cf. 18 U. S. C. § 248(b) (setting forth, as sentencing factors, "if bodily injury results," and "if death results"); United States Sentencing
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