262
Kennedy, J., dissenting
parable. Clauses (1)-(3) in § 2119 set forth alternative sentences; but the three clauses in § 2118(a) set forth alternative ways of qualifying for the only punishment provided. The more natural reading is that the drafters of § 2119 took from § 2118 the same thing they took from §§ 2111 and 2113: the language defining the basic elements of robbery. It is this language, and not other provisions, that is common to all four statutes.
In short, even indulging the Court's assumptions, the federal robbery statutes do not support the conclusion that § 2119 contains three substantive offenses. Rather, all four statutes employ similar language to define the elements of a basic robbery-type offense. It is in this sense that § 2119 is modeled on §§ 2111, 2113, and 2118.
The Court next relies on the consumer product-tampering statute, 18 U. S. C. § 1365(a), as support for its reading of § 2119. It is indeed true, as the Court suggests, that the structure and phrasing of § 1365(a) is similar to the carjacking statute. However, neither the Court nor, my research indicates, any Court of Appeals has held that § 1365(a) creates multiple offenses. The only case cited for the proposition that "the Courts of Appeals treat the statute . . . as defining basic and aggravated offenses," ante, at 234, establishes nothing of the kind. There, the Court of Appeals did no more than recite that the defendant had been charged and convicted on multiple counts of product tampering, under three subsections of § 1365(a). United States v. Meling, 47 F. 3d 1546, 1551 (CA9 1995). None of the issues presented turned on whether the subsections set forth additional elements.
The Court's final justification for its reading of § 2119 rests on state practice. Of course, the Court cannot argue that States do not take factors like serious bodily injury into account at sentencing; as discussed above, they do. Instead, the Court says many States have created a distinct offense of aggravated robbery, requiring proof of serious bodily in-
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