412
Ginsburg, J., dissenting
tion of a lesser sentence." Id., at 244. Jones could not rely on juror statements, the Fifth Circuit held, to show that the jury, in fact, was so misled when it sentenced him to death. See id., at 245-246 (although Federal Rule of Evidence 606(b) is not applicable to FDPA penalty-phase proceedings, see 18 U. S. C. § 3593(c), "[t]he reasons for not allowing jurors to undermine verdicts in [trial proceedings] . . . apply with equal force to sentencing hearings").
Nor, in the Court of Appeals' view, did the District Court err plainly by conveying to the jury the misinformation that three sentencing options were available—death, life imprisonment without release, or some other lesser sentence. See 132 F. 3d, at 246-248. Noting that the FDPA takes account of all three possibilities, see 18 U. S. C. § 3593(e), while the kidnaping statute authorizes only two sentences, death or life imprisonment, see § 1201(a), the Fifth Circuit acknowledged that the District Court had erred in giving the jury a lesser sentence option: "[T]he substantive [kidnaping] statute takes precedence over the death penalty sentencing provisions" and limits the options to death or life imprisonment without release. 132 F. 3d, at 248. The appeals court nevertheless concluded that the District Court's error was not "plain" because the FDPA was new and no prior opinion had addressed the question; hence, no "clearly established law" was in place at the time of Jones's sentencing hearing. Ibid.
The Fifth Circuit also considered Jones's challenge to the nonstatutory aggravators presented to the jury at the Government's request. The court held that the two found by the jury—the victim's "young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas," and her "personal characteristics and the effect of the . . . offense on [her] family"—were "duplicative" of each other, and also impermissibly "vague and overbroad." Id., at 250- 251. The court declined to upset the death verdict, however, because it believed "the death sentence would have been imposed beyond a reasonable doubt had the invalid ag-
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