Harris v. United States, 536 U.S. 545, 11 (2002)

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Cite as: 536 U. S. 545 (2002)

Opinion of the Court

offense interpretation to which these considerations point, however, petitioner invokes the canon of constitutional avoidance. Under that doctrine, when "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909). It is at least an open question, petitioner contends, whether the Fifth and Sixth Amendments require every fact increasing a federal defend-ant's minimum sentence to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. To avoid resolving that question (and possibly invalidating the statute), petitioner urges, we should read 924(c)(1)(A) as making brandishing an element of an aggravated federal crime.

The avoidance canon played a role in Jones, for the subsections of the carjacking statute enhanced the maximum sentence, and a single-offense interpretation would have implicated constitutional questions later addressed—and resolved in the defendant's favor—by Apprendi. See Jones, supra, at 243, n. 6 ("[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt"). Yet the canon has no role to play here. It applies only when there are serious concerns about the statute's constitutionality, Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993), and petitioner's proposed rule—that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safeguards assigned to elements—was rejected 16 years ago in McMillan. Petitioner acknowledges as much but argues that recent developments cast doubt on McMillan's viability. To avoid deciding whether McMillan must be overruled, he says, we should construe the problem out of the statute.


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