392
Breyer, J., dissenting
Justice Breyer, dissenting.
I believe that Congress intended courts to read the silences in federal sentencing statutes as permitting defendants to challenge the validity of an earlier sentence-enhancing conviction at the time of sentencing. See United States v. Paleo, 967 F. 2d 7, 11-13 (CA1 1992), implicitly overruled by Custis v. United States, 511 U. S. 485 (1994). That was the practice typically followed in the lower courts before Custis. See id., at 498-499, and n. 2, 511 (Souter, J., dissenting). The courts now follow a comparable practice in respect to other sentence-enhancing factors. See, e. g., United States v. Dunnigan, 507 U. S. 87, 95-97 (1993) (perjured testimony enhancement). And, given appropriate burden of proof rules, see, e. g., United States v. Gilbert, 20 F. 3d 94, 100 (CA3 1994); United States v. Wicks, 995 F. 2d 964, 978 (CA10), cert. denied, 510 U. S. 982 (1993); Paleo, supra, at 13 (citing United States v. Henry, 933 F. 2d 553, 559 (CA7 1991), cert. denied, 503 U. S. 997 (1992); United States v. Gallman, 907 F. 2d 639, 643 (CA7 1990), cert. denied, 499 U. S. 908 (1991); and United States v. Taylor, 882 F. 2d 1018, 1031 (CA6 1989), cert. denied, 496 U. S. 907 (1990)), that practice need not prove unusually burdensome, see Custis, supra, at 511 (Souter, J., dissenting).
Having rejected that procedural approach in Custis, supra, at 496-497, the Court now must face the alternative— a later challenge to the earlier convictions in a collateral proceeding that attacks the present conviction or sentence. To resolve that challenge the plurality has devised a broad rule immunizing the earlier conviction with a possible exception for "rare" circumstances. See ante, at 383. The rule may well prove unduly "restrictiv[e]," ante, at 388 (Souter, J., dissenting). Or, through exceptions, it may well bring about additional delay, still greater litigation complexity, and (insofar as the plurality ties Congress' hands by resting its exception upon constitutional grounds) legal inflexibility. And, given the restrictions Custis placed on sentencing courts, the
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