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SUPREME COURT OF THE UNITED STATES
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No. 91-8199
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THOMAS LEE DEAL, PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the fifth circuit
[May 17, 1993]

  Justice Stevens, with whom Justice Blackmun and
Justice O'Connor join, dissenting.
  Congress sometimes uses slightly different language to
convey the same message.  Thus, Congress uses the terms
-subsequent offense,- -second or subsequent offense,- and
-second or subsequent conviction- in various sections of
the Criminal Code, all to authorize enhanced sentences for
repeat offenders.  On some occasions, Congress meticu-
lously defines the chosen term to identify those offenses
commited after a prior conviction -has become final-;
more frequently, it relies on settled usage and the reader's
common sense to impart the same meaning.
  In certain sections of the Code, even absent a definition,
the context makes perfectly clear that the word -subse-
quent- describes only those offenses committed after a
prior conviction has become final.  Title 18 U. S. C.

1302, for instance, which prohibits mailing of lottery
tickets, authorizes a 5-year prison sentence for -any
subsequent offense.-  A literal reading of that phrase, like
the one adopted by the majority today, presumably would
justify imposition of five 5-year sentences if a defendant
who sold six lottery tickets through the mail were charged
in a single indictment.  But it is absurd to think that
Congress intended to treat such a defendant as a repeat
offender, subject to penalty enhancement, -simply because
he managed to evade detection, prosecution, and conviction
for the first five offenses and was ultimately tried for all
six in a single proceeding.-  Ante, at 8.
  In other Code sections, where context is less illuminat-
ing, the long-established usage of the word -subsequent-
to distinguish between first offenders and recidivists is
sufficient to avoid misunderstanding by anyone familiar
with federal criminal practice.  Thus, in a 1955 opinion
construing the undefined term -subsequent offense,- the
First Circuit noted that most -subsequent offender-
statutes had been construed to provide that any offense
-committed subsequent to a conviction calls for the in-
creased penalty.-  Gonzalez v. United States, 224 F. 2d
431, 434 (1955).  The court continued:
      -In the United States courts uniformly this has
been held to be the rule.  In Singer v. United States,
[278 F. 415 (1922)], the Court of Appeals for the
Third Circuit considered a substantially similar
statute to that presently before us and held that a
second offense within the meaning of the statute could
occur only after a conviction for the first offense.  See,
e.g., United States v. Lindquist, [285 F. 447 (WD
Wash. 1921)], and Biddle v. Thiele, [11 F. 2d 235
(CA8 1926)].  The Court of Appeals for the Fifth
Circuit said in Holst v. Owens, [24 F. 2d 100, 101
(1928)]: `It cannot legally be known that an offense
has been committed until there has been a conviction.
A second offense, as used in the criminal statutes, is
one that has been committed after conviction for a
first offense.  Likewise, a third or any subsequent
offense implies a repetition of crime after each previ-
ous conviction.'  Similarly, in Smith v. United States,
[41 F. 2d 215, 217 (CA9 1930)], the court stated: `In
order that a conviction shall affect the penalty for
subsequent offenses, it must be prior to the commis-
sion of the offense.'-  Ibid.
  Congress did not define the term -subsequent conviction-
when it enacted 924(c) in 1968.  It is fair to presume,
however, that Congress was familiar with the usage
uniformly followed in the federal courts.  See NLRB v.
Amax Coal Co., 453 U. S. 322, 329 (1981); Perrin v.
United States, 444 U. S. 37, 42-45 (1979).  Indeed, given
the settled construction of repeat offender provisions, it is
hardly surprising that Congressman Poff, who proposed
the floor amendment that became 924(c), felt it unneces-
sary to elaborate further.  Cf. Morissette v. United States,
342 U. S. 246, 263 (1952) (-where Congress borrows terms
of art . . . absence of contrary direction may be taken as
satisfaction with widely accepted definitions, not as a
departure from them-).  It is also unsurprising that there
appears to have been no misunderstanding of the term
-second or subsequent conviction- for almost 20 years after
the enactment of 924(c).
  Section 924(c) was construed by this Court for the first
time in Simpson v. United States, 435 U. S. 6 (1978), a
case involving sentencing of a defendant who had commit-
ted two bank robberies, two months apart.  Convicted in
two separate trials, the defendant was sentenced in each
for bank robbery, and in each to 10 years under 924(c),
then the maximum authorized term for a first-time
offender.  435 U. S., at 9.  Apparently, nobody considered
the possibility that the defendant might have been treated
as a repeat offender at his second trial, and sentenced
under 924(c)'s -second or subsequent conviction- provi-
sion.  In any event, despite the fact that the literal
language of the statute would have authorized the 924(c)
sentences, id., at 16-17 (Rehnquist, J., dissenting), the
Court set them aside, applying the rule of lenity and
concluding that Congress did not intend enhancement
under 924(c) when, as in Simpson's case, a defendant is
also sentenced under a substantive statute providing for
an enhancement for use of a firearm.  Id., at 14-15.
  In Busic v. United States, 446 U. S. 398 (1980), the
Court construed the first offender portion of 924(c) even
more narrowly than in Simpson, again rejecting a literal
reading of the statutory text that would have supported
a contrary result. In his dissenting opinion, Justice
Stewart succinctly described 924(c) as a -general en-
hancement provision-with its stiff sanctions for first
offenders and even stiffer sanctions for recidivists.-  This
understanding that the term -second or subsequent convic-
tion- was used to describe recidivism seemingly was
shared by other judges, as several years were to elapse
before the construction adopted by the Eleventh Circuit
in United States v. Rawlings, 821 F. 2d 1543, cert. denied,
484 U. S. 979 (1987), and endorsed by the Court today,
appeared in any reported judicial opinion.
  At oral argument, the Government was unable to tell
us how the -second or subsequent conviction- language of
924(c) was construed by Government prosecutors prior
to 1987, when Rawlings was decided.  Tr. of Oral Arg.
27-28.  It seems to me, however, quite likely that until
1987, the Government read the -second or subsequent-
section of 924(c) as a straightforward recidivist provision,
just as Justice Stewart did in 1980.  That reading cer-
tainly would comport with the Government's submissions
to this Court in Simpson, supra, and Busic, supra, both
of which describe the -second or subsequent conviction-
provision in terms of recidivism.  It would be consistent,
too, with the reported cases involving 924(c) sentencing,
which make clear that the district courts were routinely
imposing consecutive 5-year sentences when defendants
were convicted of two separate offenses under 924(c),
apparently without objection from the Government that
the second conviction warranted a longer sentence.  See,
e.g., United States v. Henry, 878 F. 2d 937, 938 (CA6
1989); United States v. Jim, 865 F. 2d 211, 212 (CA9),
cert. denied, 493 U. S. 827 (1989); United States v.
Fontanilla, 849 F. 2d 1257, 1258 (CA9 1988); United
States v. Chalan, 812 F. 2d 1302, 1315 (CA10 1987), cert.
denied, 488 U. S. 983 (1988).
  In light of this history, I would find no ambiguity in the
phrase -subsequent conviction- as used in 924(c).  Like
its many counterparts in the Criminal Code, the phrase
clearly is intended to refer to a conviction for an offense
committed after an earlier conviction has become final; it
is, in short, a recidivist provision.  When that sensible
construction is adopted, of course, the grammatical difficul-
ties and the potential for prosecutorial manipulation that
trouble the majority, see ante, at 2-5, are avoided entirely.
See United States v. Neal, 976 F. 2d 601, 603 (CA9 1992)
(Fletcher, J., dissenting) (-common-sense reading of
924(c)- as recidivist statute).
  Even assuming, however, that the meaning of 924(c)'s
repeat offender provision is not as obvious as I think, its
history belies the notion that its text admits of only one
reading, that adopted in Rawlings.  Surely it cannot be
argued that a construction surfacing for the first time 19
years after enactment is the only available construction.
Indeed, even after Rawlings, there is no consensus on this
point; some courts-and some Government
prosecutors-continue to apply 924(c) as a recidivist
statute.  In United States v. Nabors, 901 F. 2d 1351
(CA6), cert. denied, 498 U. S. 871 (1990), for instance, a
case decided in 1990, the Court of Appeals purported to
follow Rawlings, but actually affirmed imposition of two
5-year sentences for convictions on two distinct 924(c)
violations.  Similarly, in United States v. Luskin, 926
F. 2d 372 (CA4), cert. denied, 502 U. S. ___ (1991),
decided a year later, the Court of Appeals upheld three
5-year sentences for three violations of 924(c) committed
on separate dates, even though the minimum mandatory
penalty for a -second or subsequent conviction- was 10
years at the time of trial.  Significantly, the Government
did not challenge the 5-year sentences on the second and
third convictions.
  At the very least, this equivocation on the part of those
charged with enforcing 924(c), combined with the under-
standing of repeat offender provisions current when
924(c) was enacted, render the construction of 924(c)
sufficiently uncertain that the rule of lenity should apply.
Cf. Simpson, 435 U. S., at 14-15; see United States v.
Abreu, 962 F. 2d 1447, 1450-1451 (CA10 1992) (en banc).
As one district court judge said of 924(c), in the course
of a 1991 sentencing:
-The statute is not a model of clarity.  Its use of the
word `conviction' rather than wording describing the
offense suggests an intent to reach recidivists who
repeat conduct after conviction in the judicial system
for prior offenses.  The legislative history suggests
that Congress was trying to impose draconian punish-
ment `if he does it a second time.'  114 Cong. Rec.
22231, 22237 (1968).  It is unclear whether this
means a second time as a recidivist or a second time
offender who has not faced deterrence by a prior
sentence.  Criminal statutes must be strictly con-
strued.  Nabors [901 F. 2d, at 1358] said that
`924(c)(1) is, at best, hard to follow in simple English
. . .'  With Mr. Godwin in front of me, I decline to
hold him to a higher test than one found difficult by
appellate court judges.-  United States v. Godwin, 758
F. Supp. 281, 283 (ED Pa. 1991).
  In an effort to cure 924(c) of any ambiguity, the Court
undertakes an intricate grammatical analysis, with an
emphasis on the word -conviction.-  According to the
Court, the -conviction- referred to in 924(c) must be a
finding of guilt, preceding the entry of final judgment,
because sentence is imposed with the final judgment; if
-conviction- referred to the final judgment itself, there
would be no opportunity for sentence enhancement.  Ante,
at 3.  The -absurd[ity]- of this situation, ibid., which, I
note, has thus far eluded all of the courts to apply 924(c)
as a recidivist statute, see supra, evaporates if we assume
that sentencing judges are gifted with enough common
sense to understand that they may, upon entry of a
second final judgment, enhance the sentence incorporated
therein.  In any event, the majority's conclusion that a
-second or subsequent conviction- is a finding of guilt
leaves unanswered the question dispositive here:  whether
that second conviction (finding of guilt or entry of judg-
ment) is subject to enhancement if it is not for an offense
committed after a prior conviction has become final.
  The Court finds additional support for its conclusion in
the fact that at least some contrary readings of 924(c)
would -give a prosecutor unreviewable discretion either to
impose or to waive the enhanced sentencing provisions-
through the manner in which she charged a crime or
crimes.  Ante, at 4.  I have already pointed out that the
majority's particular concern is not implicated if 924(c)
is treated as a straight-forward recidivist provision, supra,
at 6; under that construction, a defendant who commits
a second 924(c) offense before trial on the first would not
be eligible for sentence-enhancement whether the two
counts were tried separately or together.  I would add
only that the Court's alternative reading does not solve
the broader problem it identifies.  As the Government
concedes, see Tr. of Oral Arg. 31-32, prosecutors will
continue to enjoy considerable discretion in deciding how
many 924(c) offenses to charge in relation to a criminal
transaction or series of transactions.  An armed defendant
who robs a bank and, at the same time, assaults a guard,
may be subject to one or two 924(c) charges; the choice
is the prosecutor's, and the consequence, under today's
holding, the difference between a 5- and a 15-year en-
hancement.  Cf. United States v. Jim, 865 F. 2d, at 212
(defendant charged with three counts under 924(c), each
arising from the same criminal episode); United States v.
Fontanilla, 849 F. 2d, at 1257 (same).
  Section 924(c) of the Criminal Code mandates an
enhanced, 20-year sentence for repeat offenders.  Between
1968, when the statute was enacted, and 1987, when
textualism replaced common sense in its interpretation,
the bench and bar seem to have understood that this
provision applied to defendants who, having once been
convicted under 924(c), -failed to learn their lessons from
the initial punishment- and committed a repeat offense.
See United States v. Neal, 976 F. 2d, at 603 (Fletcher, J.,
dissenting).  The contrary reading adopted by the Court
today, driven by an elaborate exercise in sentence-parsing,
is responsive to neither historical context nor common
sense.  Because I cannot agree with this unwarranted and
unnecessarily harsh construction of 924(c), the meaning
of which should, at a minimum, be informed by the rule
of lenity, I respectfully dissent.