## Facts

- Steven Kurt Witte participated in a 1990 plan to import marijuana from Mexico, with a possible cocaine component; authorities seized about 591 kilograms of cocaine, but Witte was not arrested then.
- In early 1991, a DEA undercover agent arranged a marijuana sale to Witte; Witte planned transport using vehicles tied to the earlier scheme.
- After Witte took possession of the marijuana-loaded vehicles in Houston, he was arrested and federally charged based on the 1991 marijuana conduct.
- Witte pleaded guilty to a lesser marijuana offense; the conspiracy count was dismissed pursuant to the agreement.
- At sentencing, the district court treated the uncharged 1990 cocaine activity as “relevant conduct” under U.S.S.G. § 1B1.3, aggregated drug quantities, and imposed a Guidelines sentence that remained within the statutory maximum for the marijuana offense.
- In 1992, a federal grand jury indicted Witte for conspiracy and attempt to import cocaine based on the 1990 conduct.
- Witte sought dismissal, claiming the earlier sentence already punished the cocaine conduct and that a new prosecution would violate the Fifth Amendment Double Jeopardy Clause.

## Issues

1. Whether a defendant is “punished” for uncharged criminal conduct, for Double Jeopardy purposes, when that conduct increases a Guidelines sentence (within the statutory range) for a different offense of conviction.
2. Whether such consideration of uncharged “relevant conduct” bars a later prosecution for that same conduct as an impermissible multiple punishment or successive prosecution.

## Decision

- The Supreme Court affirmed the Fifth Circuit and held that the later cocaine prosecution was not barred by the Double Jeopardy Clause.
- The Court ruled that consideration of uncharged “relevant conduct” in calculating a sentence within the statutory range for the offense of conviction does not constitute punishment for that uncharged conduct.
- Because Witte’s earlier sentence was punishment only for the marijuana offense of conviction, a subsequent prosecution for the 1990 cocaine offenses did not impose a second punishment for the same offense.

## Legal Principles

- A sentence imposed within the legislature’s authorized range is attributed, for double jeopardy purposes, to the offense of conviction, even if the court considers other criminal conduct in selecting the sentence.
- Longstanding sentencing practice permits broad consideration of a defendant’s conduct and characteristics; using conduct as a sentencing factor is distinct from punishing it as a separate offense.
- The Sentencing Guidelines’ “relevant conduct” rules do not convert uncharged conduct into a separate punishment when the resulting sentence stays within the statutory limits for the conviction offense.
- The Double Jeopardy Clause’s multiple-punishment and successive-prosecution protections are not triggered when the first proceeding did not adjudicate the later-charged offense and the first sentence remained within the statutory range for the offense of conviction.

## Conclusion

The Court held that using uncharged cocaine conduct as “relevant conduct” to increase Witte’s Guidelines sentence for a marijuana conviction—so long as the sentence remained within the statutory maximum—did not punish him for the cocaine offenses, and therefore did not bar a later federal prosecution for the cocaine conduct under the Double Jeopardy Clause.


Witte v. United States, 515 U.S. 389 (1995)