420
Ginsburg, J., dissenting
unanimous, the judge shall impose the sentence pursuant to Section 3594.").
IV
Piled on the key instructional error, the trial court presented the jury with duplicative, vague nonstatutory aggravating factors. The court told the jury to consider as aggravators, if established beyond a reasonable doubt, factors 3(B)—the victim's "young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas"—and 3(C)—the victim's "personal characteristics and the effect of the instant offense on [her] family." 132 F. 3d, at 250.23
The jury found both. See ibid.
The District Court did not clarify the meaning of the terms "background" and "personal characteristics." See id., at 251. Notably, the term "personal characteristics" in aggravator 3(C) necessarily included "young age," "slight stature," "background," and "unfamiliarity," factors the jury was told to consider in aggravator 3(B). I would not attribute to the Court genuine disagreement with that proposition. But see ante, at 399. Double counting of aggravators "creates the risk of an arbitrary death sentence." 132 F. 3d, at 251; see also United States v. McCullah, 76 F. 3d 1087, 1111 (CA10 1996) ("Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily."). The Fifth Circuit considered the District Court's lapse inconsequential, concluding that "the two remaining statutory aggravating factors . . . support the sentence of death, even after considering the eleven mitigating factors." 132 F. 3d, at 252.24
23 Counsel specifically objected to these factors. See App. 21-22, 28.
24 The Government now argues, contrary to the Fifth Circuit's conclusion, that aggravating factors 3(B) and 3(C) are not duplicative, vague, or overbroad. See Brief for United States 40-45. The Court granted certiorari on the Government's reformulated questions, which presumed the incorrectness of the aggravators. See supra, at 406, n. 1. In its brief
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