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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
--------
No. 91-1160
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A. J. ARAVE, WARDEN, PETITIONER v. THOMAS
E. CREECH
on writ of certiorari to the united states court
of appeals for the ninth circuit
[March 30, 1993]

  Justice O'Connor delivered the opinion of the Court.
  In 1981 Thomas Eugene Creech beat and kicked to
death a fellow inmate at the Idaho State Penitentiary.
He pleaded guilty to first-degree murder and was sen-
tenced to death.  The sentence was based in part on the
statutory aggravating circumstance that -[b]y the murder,
or circumstances surrounding its commission, the defend-
ant exhibited utter disregard for human life.-  Idaho Code
19-2515(g)(6) (1987).  The sole question we must decide
is whether the -utter disregard- circumstance, as inter-
preted by the Idaho Supreme Court, adequately channels
sentencing discretion as required by the Eighth and Four-
teenth Amendments.
                            I
  The facts underlying this case could not be more chill-
ing.  Thomas Creech has admitted to killing or partici-
pating in the killing of at least 26 people.  The bodies of
11 of his victims-who were shot, stabbed, beaten, or
strangled to death-have been recovered in seven States.
Creech has said repeatedly that, unless he is completely
isolated from humanity, he likely will continue killing.
And he has identified by name three people outside prison
walls he intends to kill if given the opportunity.
  Creech's most recent victim was David Dale Jensen, a
fellow inmate in the maximum security unit of the Idaho
State Penitentiary.  When he killed Jensen, Creech was
already serving life sentences for other first-degree mur-
ders.  Jensen, about seven years Creech's junior, was a
nonviolent car thief.  He was also physically handicapped.
Part of Jensen's brain had been removed prior to his
incarceration, and he had a plastic plate in his skull.
  The circumstances surrounding Jensen's death remain
unclear, primarily because Creech has given conflicting
accounts of them.  In one version, Creech killed Jensen
in self defense.  In another-the version that Creech gave
at his sentencing hearing-other inmates offered to pay
Creech or help him escape if he killed Jensen.  Creech,
through an intermediary, provided Jensen with makeshift
weapons and then arranged for Jensen to attack him, in
order to create an excuse for the killing.  Whichever of
these accounts (if either) is true, the Idaho Supreme Court
found that the record supported the following facts:
-Jensen approached Creech and swung a weapon at
him which consisted of a sock containing batteries.
Creech took the weapon away from Jensen, who
returned to his cell but emerged with a toothbrush to
which had been taped a razor blade.  When the two
men again met, Jensen made some movement toward
Creech, who then struck Jensen between the eyes
with the battery laden sock, knocking Jensen to the
floor.  The fight continued, according to Creech's
version, with Jensen swinging the razor blade at
Creech and Creech hitting Jensen with the battery
filled sock.  The plate imbedded in Jensen's skull
shattered, and blood from Jensen's skull was splashed
on the floor and walls.  Finally, the sock broke and
the batteries fell out, and by that time Jensen was
helpless.  Creech then commenced kicking Jensen
about the throat and head.  Sometime later a guard
noticed blood, and Jensen was taken to the hospital,
where he died the same day.-  State v. Creech, 105
Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert.
denied, 465 U. S. 1051 (1984).
  Creech pleaded guilty to first-degree murder.  The trial
judge held a sentencing hearing in accordance with Idaho
Code 19-2515(d) (1987).  After the hearing, the judge
issued written findings in the format prescribed by Rule
33.1 of the Idaho Criminal Rules.  Under the heading
-Facts and Argument Found in Mitigation,- he listed that
Creech -did not instigate the fight with the victim, but the
victim, without provocation, attacked him.  [Creech] was
initially justified in protecting himself.-  App. 32.  Under
the heading -Facts and Argumen[t] Found in Aggravation,-
the judge stated:
-[T]he victim, once the attack commenced, was under
the complete domination and control of the defendant.
The murder itself was extremely gruesome evidencing
an excessive violent rage.  With the victim's attack as
an excuse, the . . . murder then took on many aspects
of an assassination.  These violent actions . . . went
well beyond self-defense.
             .        .        .       .        .
      -. . . The murder, once commenced, appears to have
been an intentional, calculated act.-  Id., at 32-33.
The judge then found beyond a reasonable doubt five
statutory aggravating circumstances, including that
Creech, -[b]y the murder, or circumstances surrounding
its commission, . . . exhibited utter disregard for human
life.-  Id., at 34.  He observed in this context that -[a]fter
the victim was helpless [Creech] killed him.-  Ibid.  Next,
the judge concluded that the mitigating circumstances did
not outweigh the aggravating circumstances.  Reiterating
that Creech -intentionally destroyed another human being
at a time when he was completely helpless,- ibid., the
judge sentenced Creech to death.
  After temporarily remanding for the trial judge to
impose sentence in open court in Creech's presence, the
Idaho Supreme Court affirmed.  The court rejected
Creech's argument that the -utter disregard- circumstance
is unconstitutionally vague, reaffirming the limiting
construction it had placed on the statutory language in
State v. Osborn, 102 Idaho 405, 631 P. 2d 187 (1981):
-`A . . . limiting construction must be placed upon the
aggravating circumstances in I.C. 19-2515[g](6), that
-[b]y the murder, or the circumstances surrounding its
commission, the defendant exhibited utter disregard
for human life.-  To properly define this circumstance,
it is important to note the other aggravating circum-
stances with which this provision overlaps.  The
second aggravating circumstance, I.C. 19-2515[g](2),
that the defendant committed another murder at the
time this murder was committed, obviously could
show an utter disregard for human life, as could the
third aggravating circumstance, I.C. 19-2515[g](3),
that the defendant knowingly created a great risk of
death to many persons.  The same can be said for the
fourth aggravating circumstance, I.C. 19-2515[g](4),
that the murder was committed for remuneration.
Since we will not presume that the legislative intent
was to duplicate any already enumerated circum-
stance, thus making [the -utter disregard- circum-
stance] mere surplusage, we hold that the phrase
-utter disregard- must be viewed in reference to acts
other than those set forth in I.C. 19-2515[g](2), (3),
and (4).  We conclude instead that the phrase is
meant to be reflective of acts or circumstances sur-
rounding the crime which exhibit the highest, the
utmost, callous disregard for human life, i.e., the cold-
blooded, pitiless slayer.'-  Creech, supra, at 370, 670
P. 2d, at 471 (quoting Osborn, supra, at 418-419, 631
P. 2d, at 200-201) (citation omitted).
After independently reviewing the record, the Idaho
Supreme Court also held that the evidence clearly sup-
ported the trial judge's findings of aggravating and
mitigating circumstances, including the finding that
Creech had exhibited -utter disregard for human life.-
105 Idaho, at 369, 670 P. 2d, at 470.  Then, as required
by Idaho law, see Idaho Code 19-2827(c)(3) (1987), the
court compared Creech's case to similar cases in order to
determine whether his sentence was excessive or dispro-
portionate.  The court emphatically concluded that it was
not: -We have examined cases dating back more than 50
years and our examination fails to disclose that any such
remorseless, calculating, cold-blooded multiple murderer
has . . . ever been before this Court.-  105 Idaho, at 375,
670 P. 2d, at 476 (footnote omitted).
  Creech filed a petition for writ of habeas corpus in the
United States District Court for the District of Idaho.
The District Court denied relief.  See Creech v. Arave,
No. 86-1042 (June 18, 1986).  The Court of Appeals for
the Ninth Circuit, however, agreed with Creech that the
-utter disregard- circumstance is unconstitutionally vague.
947 F. 2d 873 (1991).  The court first considered the
statutory language itself and concluded that the phrase
-utter disregard- does not adequately channel sentencing
discretion.  Id., at 882-883.  The court then considered
the Osborn narrowing construction and found it un-
satisfactory as well.  Explaining what -utter disregard-
does not mean, the Court of Appeals reasoned, does not
give the phrase content.  947 F. 2d, at 883, n. 12.  Nor
do the words -`the highest, the utmost, callous disregard
for human life'- clarify the statutory language; they
merely emphasize it.  Id., at 883-884 (citing Maynard v.
Cartwright, 486 U. S. 356, 364 (1988)).  The phrase -cold-
blooded, pitiless slayer- also was deemed inadequate.  The
Court of Appeals construed our precedents, including
Walton v. Arizona, 497 U. S. 639 (1990), to require that
a limiting construction -defin[e] the terms of the statutory
aggravating circumstance through objective standards.-
947 F. 2d, at 884.  -[C]old-blooded, pitiless slayer- fails,
the court said, because it calls for a -subjective deter-
mination.-  Ibid.  The court found further evidence of the
Osborn construction's infirmity in its application to this
case.  In the Court of Appeals' view, the trial judge's find-
ings that Jensen attacked Creech -without provocation-
and that the murder -`evidenc[ed] an excessive violent
rage'- could not be reconciled with the conclusion that
Creech was a -cold-blooded, pitiless- killer.  Ibid.  The
Court of Appeals therefore found the -utter disregard-
circumstance facially invalid.  Id., at 884-885.
  Three judges dissented from an order denying rehearing
en banc.  The dissenters argued that the panel had
misconstrued both the -utter disregard- factor and this
Court's prior decisions.  Whether a defendant is a -cold-
blooded, pitiless slayer,- they said, is not a subjective in-
quiry; it is an evidentiary question to be determined from
facts and circumstances.  Id., at 890 (Trott, J., dissenting).
The dissenters found the Osborn limiting construction in-
distinguishable from the construction this Court approved
in Walton.  947 F. 2d, at 890.  We granted certiorari,
limited to the narrow question whether the -utter
disregard- circumstance, as interpreted by the Idaho
Supreme Court in Osborn, is unconstitutionally vague.
See 504 U. S. ___ (1992).
                           II
  This case is governed by the standards we articulated
in Walton, supra, and Lewis v. Jeffers, 497 U. S. 764
(1990).  In Jeffers we reaffirmed the fundamental principle
that, to satisfy the Eighth and Fourteenth Amendments,
a capital sentencing scheme must -`suitably direc[t] and
limi[t]'- the sentencer's discretion -`so as to minimize the
risk of wholly arbitrary and capricious action.'-  Id., at
774 (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976)
(joint opinion of Stewart, Powell, and Stevens, JJ.)).  The
State must -`channel the sentencer's discretion by clear
and objective standards that provide specific and detailed
guidance, and that make rationally reviewable the process
for imposing a sentence of death.'-  497 U. S., at 774
(quoting Godfrey v. Georgia, 446 U. S. 420, 428 (1980)
(plurality opinion) (internal quotation marks omitted)).
  In Walton we set forth the inquiry that a federal court
must undertake when asked to decide whether a
particular aggravating circumstance meets these
standards:
-[T]he federal court . . . must first determine whether
the statutory language defining the circumstance is
itself too vague to provide any guidance to the
sentencer.  If so, then the federal court must attempt
to determine whether the state courts have further
defined the vague terms and if they have done so,
whether those definitions are constitutionally suf-
ficient, i.e., whether they provide some guidance to the
sentencer.-  497 U. S., at 654 (emphasis in original).
Where, as in Idaho, the sentencer is a judge rather than
a jury, the federal court must presume that the judge
knew and applied any existing narrowing construction.
Id., at 653.
  Unlike the Court of Appeals, we do not believe it is
necessary to decide whether the statutory phrase -utter
disregard for human life- itself passes constitutional
muster.  The Idaho Supreme Court has adopted a limiting
construction, and we believe that construction meets con-
stitutional requirements.
  Contrary to the dissent's assertions, see post, at 3-7, the
phrase -cold-blooded, pitiless slayer- is not without
content.  Webster's Dictionary defines -pitiless- to mean
devoid of, or unmoved by, mercy or compassion.  Webster's
Third New International Dictionary 1726 (1986).  The lead
entry for -cold-blooded- gives coordinate definitions.  One,
-marked by absence of warm feelings: without
consideration, compunction, or clemency,- id., at 442,
mirrors the definition of -pitiless.-  The other defines
-cold-blooded- to mean -matter of fact, emotionless.-  Ibid.
It is true that -cold-blooded- is sometimes also used to
describe -premedita[tion],- Black's Law Dictionary 260 (6th
ed. 1990)-a mental state that may coincide with, but is
distinct from, a lack of feeling or compassion.  But
premeditation is clearly not the sense in which the Idaho
Supreme Court used the word -cold-blooded- in Osborn.
Other terms in the limiting construction--callous- and
-pitiless--indicate that the court used the word -cold-
blooded- in its first sense.  -Premedita[tion],- moreover,
is specifically addressed elsewhere in the Idaho homicide
statutes, Idaho Code 18-4003(a) (1987 (amended version
at Supp. 1992)); had the Osborn court meant
premeditation, it likely would have used the statutory
language.
  In ordinary usage, then, the phrase -cold-blooded,
pitiless slayer- refers to a killer who kills without feeling
or sympathy.  We assume that legislators use words in
their ordinary, everyday senses, see, e.g., INS v.
Phinpathya, 464 U. S. 183, 189 (1984), and there is no
reason to suppose that judges do otherwise.  The dissent
questions our resort to dictionaries for the common
meaning of the word -cold-blooded,- post, at 4, but offers
no persuasive authority to suggest that the word, in its
present context, means anything else.
  The Court of Appeals thought the Osborn limiting
construction inadequate not because the phrase -cold-
blooded, pitiless slayer- lacks meaning, but because it
requires the sentencer to make a -subjective determina-
tion.-  We disagree.  We are not faced with pejorative
adjectives such as -especially heinous, atrocious, or cruel-
or -outrageously or wantonly vile, horrible and in-
human--terms that describe a crime as a whole and that
this Court has held to be unconstitutionally vague.  See,
e.g., Shell v. Mississippi, 498 U. S. 1 (1990) (per curiam);
Cartwright, 486 U. S., at 363-364; Godfrey, supra, at
428-429.  The terms -cold-blooded- and -pitiless- describe
the defendant's state of mind: not his mens rea, but his
attitude toward his conduct and his victim.  The law has
long recognized that a defendant's state of mind is not a
-subjective- matter, but a fact to be inferred from the sur-
rounding circumstances.  See United States Postal Service
Bd. of Governors v. Aikens, 460 U. S. 711, 716-717 (1983)
(-`The state of a man's mind is as much a fact as the
state of his digestion.  It is true that it is very difficult
to prove . . . , but if it can be ascertained it is as much
a fact as anything else'- (quoting Edgington v. Fitz-
maurice, 29 Ch. Div. 459, 483 (1885))).
  Determining whether a capital defendant killed without
feeling or sympathy is undoubtedly more difficult than, for
example, determining whether he -was previously con-
victed of another murder,- Idaho Code 19-2515(g)(1)
(1987).  But that does not mean that a State cannot, con-
sistent with the Federal Constitution, authorize sentencing
judges to make the inquiry and to take their findings into
account when deciding whether capital punishment is war-
ranted.  This is the import of Walton.  In that case we
considered Arizona's -especially heinous, cruel, or de-
praved- circumstance.  The Arizona Supreme Court had
held that a crime is committed in a -depraved- manner
when the perpetrator -`relishes the murder, evidencing de-
basement or perversion,' or `shows an indifference to the
suffering of the victim and evidences a sense of pleasure'
in the killing.-  Walton, supra, at 655 (quoting State v.
Walton, 159 Ariz. 571, 587, 769 P. 2d 1017, 1033 (1989)).
We concluded that this construction adequately guided
sentencing discretion, even though -the proper degree of
definition of an aggravating factor of this nature is not
susceptible of mathematical precision.-  497 U. S., at 655;
accord, Jeffers, 497 U. S., at 777; cf. Proffitt v. Florida,
428 U. S. 242, 260 (1976) (White, J., concurring in judg-
ment) (approving Florida statutory aggravating circum-
stances that, -although . . . not susceptible of mechanical
application . . . are by no means so vague and overbroad
as to leave the discretion of the sentencing authority
unfettered-).
  The language at issue here is no less -clear and objec-
tive- than the language sustained in Walton.  Whether a
defendant -relishes- or derives -pleasure- from his crime
arguably may be easier to determine than whether he acts
without feeling or sympathy, since enjoyment is an
affirmative mental state, whereas the cold-bloodedness
inquiry in a sense requires the sentencer to find a
negative.  But we do not think so subtle a distinction has
constitutional significance.  The Osborn limiting
construction, like the one upheld in Walton, defines a
state of mind that is ascertainable from surrounding facts.
Accordingly, we decline to invalidate the -utter disregard-
circumstance on the ground that the Idaho Supreme
Court's limiting construction is insufficiently -objective.-
  Of course, it is not enough for an aggravating circum-
stance, as construed by the state courts, to be determi-
nate.  Our precedents make clear that a State's capital
sentencing scheme also must -genuinely narrow the class
of defendants eligible for the death penalty.-  Zant v.
Stephens, 462 U. S. 862, 877 (1983).  When the purpose
of a statutory aggravating circumstance is to enable the
sentencer to distinguish those who deserve capital punish-
ment from those who do not, the circumstance must pro-
vide a principled basis for doing so.  See Jeffers, supra,
at 776; Godfrey, supra, at 433.  If the sentencer fairly
could conclude that an aggravating circumstance applies
to every defendant eligible for the death penalty, the
circumstance is constitutionally infirm.  See Cartwright,
486 U. S., at 364 (invalidating aggravating circumstance
that -an ordinary person could honestly believe- described
every murder); Godfrey, 446 U. S., at 428-429 (-A person
of ordinary sensibility could fairly characterize every
murder as `outrageously or wantonly vile, horrible and
inhuman'-).
  Although the question is close, we believe the Osborn
construction satisfies this narrowing requirement.  The
class of murderers eligible for capital punishment under
Idaho law is defined broadly to include all first-degree
murderers.  Idaho Code 18-4004 (1987).  And the
category of first-degree murderers is also broad.  It
includes premeditated murders and those carried out by
means of poison, lying in wait, or certain kinds of torture.
18-4003(a).  In addition, murders that otherwise would
be classified as second degree, 18-4003(g)-including
homicides committed without -considerable provocation-
or under circumstances demonstrating -an abandoned and
malignant heart- (a term of art that refers to
unintentional homicide committed with extreme
recklessness, see American Law Institute, Model Penal
Code 210.2(1)(b) Comment, n. 4 (1980)), Idaho Code
18-4001, 18-4002 (1987)-become first degree if they
are accompanied by one of a number of enumerated cir-
cumstances.  For example, murders are classified as first
degree when the victim is a fellow prison inmate,
18-4003(e), or a law enforcement or judicial officer
performing official duties, 18-4003(b); when the
defendant is already serving a sentence for murder,
18-4003(c); and when the murder occurs during a prison
escape, 18-4003(f), or the commission or attempted
commission of arson, rape, robbery, burglary, kidnapping,
or mayhem, 18-4003(d).  In other words, a sizable class
of even those murderers who kill with some provocation
or without specific intent may receive the death penalty
under Idaho law.
  We acknowledge that, even within these broad
categories, the word -pitiless,- standing alone, might not
narrow the class of defendants eligible for the death
penalty.  A sentencing judge might conclude that every
first-degree murderer is -pitiless,- because it is difficult to
imagine how a person with any mercy or compassion could
kill another human being without justification.  Given the
statutory scheme, however, we believe that a sentencing
judge reasonably could find that not all Idaho capital
defendants are -cold-blooded.-  That is because some
within the broad class of first-degree murderers do exhibit
feeling.  Some, for example, kill with anger, jealousy,
revenge, or a variety of other emotions.  In Walton we
held that Arizona could treat capital defendants who take
pleasure in killing as more deserving of the death penalty
than those who do not.  Idaho similarly has identified the
subclass of defendants who kill without feeling or
sympathy as more deserving of death.  By doing so, it has
narrowed in a meaningful way the category of defendants
upon whom capital punishment may be imposed.
  Creech argues that the Idaho courts have not applied
the -utter disregard- circumstance consistently.  He points
out that the courts have found defendants to exhibit -utter
disregard- in a wide range of cases.  This, he claims,
demonstrates that the circumstance is nothing more than
a catch-all.  The dissent apparently agrees.  See post, at
7-9.  The State, in turn, offers its own review of the cases
and contends that they are consistent.  In essence, the
parties and the dissent would have us determine the
facial constitutionality of the -utter disregard-
circumstance, as construed in Osborn, by examining
applications of the circumstance in cases not before us.
  As an initial matter, we do not think the fact that -all
kinds of . . . factors,- post, at 8, may demonstrate the
requisite state of mind renders the Osborn construction
facially invalid.  That the Idaho courts may find first-
degree murderers to be -cold-blooded- and -pitiless- in a
wide range of circumstances is unsurprising.  It also is
irrelevant to the question before us.  We did not
undertake a comparative analysis of state court decisions
in Walton.  See 497 U. S., at 655 (construing the
argument that the aggravating circumstance -has been
applied in an arbitrary manner- as a challenge to the
state court's proportionality review).  And in Jeffers we
stated clearly that the question whether state courts
properly have applied an aggravating circumstance is
separate from the question whether the circumstance, as
narrowed, is facially valid.  See 497 U. S., at 778-780.
To be sure, we previously have examined other state
decisions when the construction of an aggravating cir-
cumstance has been unclear.  In Sochor v. Florida, 504
U. S. ___ (1992), for example, the argument was that the
state courts had not adhered to a single limiting
construction of Florida's -heinous, atrocious, or cruel-
circumstance.  Id., at ___ (slip op., at 8-9); see also
Proffitt v. Florida, 428 U. S., at 255, n. 12 (joint opinion
of Stewart, Powell, and Stevens, JJ.) (reviewing other
cases to establish that the state courts had construed an
aggravating circumstance consistently).  Under our
precedents, a federal court may consider state court
formulations of a limiting construction to ensure that they
are consistent.  But our decisions do not authorize review
of state court cases to determine whether a limiting
construction has been applied consistently.
  A comparative analysis of state court cases, moreover,
would be particularly inappropriate here.  The Idaho Su-
preme Court upheld Creech's death sentence in 1983-be-
fore it had applied Osborn to any other set of facts.  None
of the decisions on which the dissent relies, or upon which
Creech asks us to invalidate his death sentence,
influenced either the trial judge who sentenced Creech or
the appellate judges who upheld the sentence.  And there
is no question that Idaho's formulation of its limiting
construction has been consistent.  The Idaho Supreme
Court has reaffirmed its original interpretation of -utter
disregard- repeatedly, often reciting the definition given
in Osborn verbatim.  See, e.g., State v. Card, 121 Idaho
425, 435-436, 825 P. 2d 1081, 1091-1092 (1991) (citing
cases), cert. denied, 506 U. S. ___ (1992).  It also has
explained that -utter disregard- differs from Idaho's
-heinous, atrocious or cruel- aggravating circumstance,
Idaho Code 19-2515(g)(5) (1987), because the Osborn
construction focuses on the defendant's state of mind.
State v. Fain, 116 Idaho 82, 99, 774 P. 2d 252, 269
(-[T]he `utter disregard' factor refers not to the out-
rageousness of the acts constituting the murder, but to the
defendant's lack of conscientious scruples against killing
another human being-), cert. denied, 493 U. S. 917 (1989).
In light of the consistent narrowing definition given the
-utter disregard- circumstance by the Idaho Supreme
Court, we are satisfied that the circumstance, on its face,
meets constitutional standards.

                           III
  Creech argues alternatively that the -utter disregard-
circumstance, even if facially valid, does not apply to him.
He suggests-as did the Court of Appeals and as does the
dissent, post, at 10-11-that the trial judge's findings that
he was provoked and that he exhibited an -excessive
violent rage- are irreconcilable with a finding of -utter
disregard.-  The Idaho Supreme Court, Creech claims, did
not cure the error on appeal.  There also appears to be
some question whether the other murders that Creech has
committed, and the self-defense explanations he has
offered for some of them, bear on the -utter disregard-
determination.  See Tr. of Oral Arg. 5-7, 18-21; cf. post,
at 10, n. 15.
  These are primarily questions of state law.  As we said
in Jeffers, a state court's application of a valid aggravating
circumstance violates the Constitution only if -no reason-
able sentencer- could find the circumstance to exist.  497
U. S., at 783.  The Court of Appeals had no occasion to
decide the Jeffers issue in this case, since it found the
-utter disregard- circumstance facially vague.  The posture
of the case, moreover, makes it unnecessary for us to
reach the remaining arguments.  The Court of Appeals
granted Creech relief on two other claims: that the trial
judge improperly refused to allow him to present new
mitigating evidence when he was resentenced in open
court, and that the judge applied two aggravating
circumstances without making a finding required under
state law.  See 947 F. 2d, at 881-882.  On the basis of
the first claim, Creech is entitled to resentencing in state
trial court.  Id., at 882.  Accordingly, we hold today only
that the -utter disregard- circumstance, as defined in
Osborn, on its face meets constitutional requirements.
The judgment of the Court of Appeals is therefore
reversed in part and the case remanded for proceedings
consistent with this opinion.
                                      It is so ordered.