U.S. v. BROWN

74 F. Supp.2d 44 (1999) | Cited 0 times | D. Maine | November 2, 1999

MEMORANDUM OF DECISION AND ORDER

The Government has charged Defendant Steven K. Brown, by way ofa ten-count Indictment, with various offenses for his role in thealleged kidnapping of his wife in late March of 1999. On August11, 1999, Defendant came before this Court and indicated hisintent to change his plea to guilty on all ten counts of theIndictment. At a prehearing conference, the Court inquired ofdefense counsel and the Government as to the potential sentencingrange that could be imposed on the following counts of theIndictment: Count II, 18 U.S.C. § 1201 ("§ 1201") (kidnapping);Count VII, 18 U.S.C. § 2261A ("§ 2261A") (interstate stalking);Count VIII, § 2261A (interstate stalking); and Count IX,18 U.S.C. § 2262 ("§ 2262") (interstate violation of a protectionorder). The Court raised this issue because there are other factsrelevant to this action, which are known to the Court but notalleged in the applicable counts of the Indictment, thatpotentially affect the sentencing ranges faced by Defendantdepending upon whether these other facts are treated assentencing factors or as additional substantive elements of theoffenses charged. Resolution of this issue, therefore, isrequired before Defendant can be advised properly of his maximumsentence exposure if he decides to change his plea to guilty.

DISCUSSION

I. Count II of the Indictment, Kidnapping, in Violation of 18U.S.C. § 1201(a)(1)

Defendant has been charged in Count II of the Indictment withkidnapping in violation of 18 U.S.C. § 1201(a)(1). Count II,however, does not allege that "the death of any person" resultedfrom Brown's kidnapping of his wife. Indictment (Docket No. 12).By contrast, Count I of the Indictment does allege that twoindividuals were killed during the time frame in which thekidnapping alleged in Count II took place. Id. Thus, the issuebefore the Court with respect to Count II is whether the factthat two deaths resulted from the commission of the kidnappingexposes Defendant to a mandatory life sentence (in which case theCourt will consider the deaths of the two individuals as asentencing factor) or whether the failure of the Government toplead in Count II that any deaths resulted from the kidnappingexposes Defendant to a permissive maximum sentence of lifeimprisonment (in which case the Court will consider "the death ofany person" provision as a not-proven element of the kidnappingoffense). For the following reasons, the Court finds that it musttreat the fact that two deaths occurred during thecommission of the kidnapping as a sentencing factor only and,therefore, if Defendant pleads guilty to the kidnapping charge inCount II, he faces a mandatory sentence of life imprisonment.

It is well-established that for an accused to be found guiltyof a crime, the elements of the offense must be charged in theindictment, submitted to a jury, and proven by the governmentbeyond a reasonable doubt. Jones v. United States,526 U.S. 227, 119 S.Ct. 1215, 1219, 143 L.Ed.2d 311 (1999);Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct.1219, 1222, 140 L.Ed.2d 350 (1998). However, an indictment neednot set forth factors which are relevant only to the sentencingof an offender found guilty of the crime charged.Almendarez-Torres, 118 S.Ct. at 1222. Therefore,

[i]f a fact is an offense element, it must be charged in the indictment and, if the defendant chooses to proceed to trial, it must be proven beyond a reasonable doubt. If, on the other hand, a fact is a mere sentencing consideration, it need not be raised until sentencing and need be proven only by a preponderance of the evidence.

United States v. Davis, 184 F.3d 366, 368 (4th Cir. 1999).

Whether a fact is an offense element or a sentencingconsideration is a matter of statutory interpretation.Almendarez-Torres, 118 S.Ct. at 1223. In determining whetherCongress intended for a statute to define separate offenses, ormerely to set forth separate sentencing factors, a court shouldlook to the statute's "language, structure, subject matter,context, and history. . . ." Id.

A. Statutory Language and Structure

Count II of the indictment charges that Defendant violated18 U.S.C. § 1201(a)(1). Section 1201 provides in relevant part:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when-

(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began; .

shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

Defendant argues that § 1201(a)(1) contains an alternativeelement of the offense ("the death of any person"), which must bepled in the indictment, and proven at trial before a mandatorylife sentence may be imposed. Defendant relies on the SupremeCourt's recent decision in Jones as authority for his position.In Jones, the Supreme Court, in a 5-4 decision, held that thefederal carjacking statute, 18 U.S.C. § 2119, set forth threeseparate offenses, not merely one offense with various sentencingconsiderations. Jones, 119 S.Ct. at 1228. As will be discussedbelow, however, Defendant's reliance on Jones is misplaced.

Conversely, the Government argues that the availability of thepermissive life sentence under § 1201(a)(1) renders itunnecessary for this Court to decide whether Defendant faces amandatory or permissive life sentence. Specifically, theGovernment contends that under § 1201(a)(1), Defendant faces apermissive life sentence even without the enhanced penaltyprovision and that there is no practical difference between alife sentence and a mandatory life sentence. "The Court,therefore, can impose a life sentence without resolving [this]thorny issue." Government Memorandum on Sentencing Issues p. 6-7(Docket No. 32).

The Government's argument, however, misses the present point.It is necessary for this Court to resolve the sentencing issuebefore Defendant can be advisedproperly as to the maximum sentence he faces if he pleads guiltyto Count II; clearly, the Court cannot simply evade the issue.

As stated above, Defendant argues that the Jones decisioncontrols this action. But, as will become apparent, the textualdifferences between the federal carjacking statute at issue inJones and the kidnapping statute at issue here dictatesotherwise because although the Jones decision is applicablehere insofar as it sets forth the proper criteria by which thisCourt must analyze the issues raised in this case, the actualholding of Jones extends only to the federal carjackingstatute.

Defendant first argues that in Jones, the Supreme Court foundthat only when the numbered subdivisions of the carjackingstatute were read together with the first paragraph did anoffense with one "complete . . . thought" exist. Jones, 119S.Ct. at 1219. Therefore, the Supreme Court reasoned, because theoffense of carjacking as provided for in § 2119 could not standalone as a unitary offense without reference to the individualsubsections, Congress must have intended to create separateoffenses within § 2119, not to establish separate sentencingfactors. Id. "[The carjacking statute] is thus unlike mostoffense defining provisions in the federal criminal code, whichgenuinely stand on their own grammatical feet thanks to phrasessuch as . . . `shall be punished by' . . . which draw aprovision to its close." Id. (emphasis added.)

Here, however, the kidnapping statute, unlike the federalcarjacking statute, forms one complete thought; therefore, by theSupreme Court's reasoning in Jones, § 1201(a)(1) forms onecomplete offense. A comparison of the two the statutes isinstructive on this issue.

The kidnapping statute at issue here provides in relevant part:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when-

(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began; . . .

shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a)(1).

The federal carjacking statute, at issue in Jones, provided inrelevant part:

(a) Whoever, possessing a firearm as defined in section 910 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, . . . shall-

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.

18 U.S.C. § 2119 (1988 ed., Supp. V).

Section 1201(a)(1) specifically provides that all offenders"shall be punished by" an appropriate sentence. By contrast, §2119 contains no similar language. In fact, even Defendantconcedes that § 1201(a)(1) constitutes one complete, unitaryoffense. Defendant's Memorandum Addressing Statutory ConstructionIssues p. 4 (Docket No. 31). Consequently, the kidnapping statuteis textually distinguishable from the carjacking statute on thiscritical point. Indeed, applying the Supreme Court's analysis inJones to the facts here, textual support is given to theconstruction of § 1201(a)(1), as a unitary offense with the"death of any person"provision as a sentencing factor only, not as an element of thesubstantive offense.

Next, Defendant points to the Supreme Court's focus on thedrastic increase in penalties provided for in the carjackingstatute as a basis for his contention that "the death of anyperson" provision contained within § 1201(a)(1) is an element ofthe kidnapping offense. It is commonly understood thatCongressional intent to create new offenses may be establishedfrom the magnitude of the increase in the maximum authorizedsentence. Almendarez-Torres, 118 S.Ct. at 1226. In other words,if Congress enacts a statute that ostensibly sets out theelements for a single offense, but then, in a subsection of thatstatute, Congress sets the range of penalties for violation ofthe offense from a fine all the way up to life imprisonment, thencourts should construe the statute as establishing more than oneoffense with each offense consisting of different elements.Alternatively, if the range of available sentences is narrow (forexample, 15 years or 20 years depending on whether the defendantused a weapon) then courts should construe the statute as settingforth one offense with applicable sentencing considerations.

The reasoning underlying this rule is explained in Jones.

If a potential penalty might rise from 15 years to life on a nonjury determination, the jury's role would correspondingly shrink from the significance usually carried by determinations of guilt to the relative importance of low level gate keeping; in some cases, a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury's function to a point against which a line must necessarily be drawn.

Jones, 119 S.Ct. at 1224.

In Jones, the Supreme Court concluded that the federalcarjacking statute did set forth such a wide disparity insentencing that Sixth Amendment and Due Process concerns wereraised (§ 2119 provides for a sentence of not more than 15 yearsall the way to life imprisonment). Jones, 119 S.Ct. at 1226.Thus, to avoid those potential problems, the Supreme Courtinterpreted the carjacking statute to set forth separateoffenses. Id. In the present action, however, the kidnappingstatute presents no such constitutional concerns.

The kidnapping statute does not provide for such a dramaticleap in the sentencing range. Here, the Government has not soughtthe death penalty and, therefore, it is not an option forsentencing purposes. See United States v. Rodriguez,162 F.3d 135, 151 (1st Cir. 1998), cert. denied, ___ U.S. ____, 119S.Ct. 2034, 143 L.Ed.2d 1044 (1999). Thus, the maximum penaltyDefendant faces if he pleads guilty to the kidnapping offense islife imprisonment, regardless of whether the "death of anyperson" occurred or not; it is only the issue of whether thesentence of life imprisonment is discretionary or mandatory thatis presently before the Court. With regard to the Court'sdiscretion, however, the Supreme Court stated in McMillan v.Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67(1986), that when a statute does not alter "the maximum penaltyfor the crime committed," but rather operates "solely to limitthe sentencing court's discretion in selecting a penalty," thestatute sets forth a sentencing consideration only, not anadditional element of the offense. McMillan, 477 U.S. at 88-89,106 S.Ct. at 2417-18. This is precisely the situation here. As aresult, the plain text of the kidnapping statute supports theconclusion that "the death of any person" provision is asentencing factor, not an additional substantive element of theoffense.

Accordingly, the kidnapping statute is distinguishable from thefederal carjacking statute at issue in Jones. Nevertheless, theSupreme Court's analysis in Jones supports the conclusion herethat, based upon the plain text of § 1201(a)(1), the "death ofany person" provision within the kidnapping statute is asentencing factor, not an element of the offense.

B. Extrinsic Evidence; Other Statutes

In addition to the foregoing, in Jones, the Supreme Courtstated that it was appropriate for courts to look to otherextrinsic sources, aside from the actual text of a given statute,to determine Congress's intent with regard to legislation.Jones, 119 S.Ct. at 1220-22. Examination of other statutes, asan extrinsic source, was particularly appropriate. Id.

In U.S. v. McVeigh, the Court of Appeals for the TenthCircuit was faced with an issue, and statute, similar to the onepresented here. See U.S. v. McVeigh, 153 F.3d 1166 (10th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1148, 143 L.Ed.2d215 (1999). There, the defendant was charged with, inter alia,violation of 18 U.S.C. § 2332a (use of a weapon of massdestruction). Section 2332a provides in pertinent part:

A person who uses, or attempts or conspires to use, a weapon of mass destruction . . . (2) against any person within the United States; . . . shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

After careful review of the applicable law, the circuit courtconcluded that the phrase "if death results," as drafted in §2332a, was a sentencing factor, not an element of the weaponoffense. McVeigh, 153 F.3d at 1194.

The fact that the statute authorizes the death penalty "if death results" from the use of the weapon of mass destruction does not persuade us that the statutes incorporates "intent to kill" as an element. Looking at the plain language and structure of the statute, we conclude that the phrase "if death results" is a sentencing factor rather than an element of the offense.

Id.

The circuit court stated further:

The natural reading of the text of § 2332a(a) is that subsections (a)(1), (a)(2), and (a)(3) define the elements of the crime; i.e., the use of a weapon of mass destruction against specified targets. The penalties follow separately-any term of years, life imprisonment, and in some cases, the death penalty. The proof needed to trigger the death penalty, however, is not necessary to prove a violation of the statute.

Id. at 1194-95 (emphasis added).

The McVeigh court also found the foregoing interpretation of§ 2332a to be consistent with, not contrary to, the holding inAlmendarez-Torres. See United States v. Nichols, 169 F.3d 1255,1261 (10th Cir. 1999) (circuit court expressly consideredAlmendarez-Torres in concluding that "if death results" is asentencing factor), cert. denied, ___ U.S. ___, 120 S.Ct. 336,145 L.Ed.2d 262 (1999); McVeigh, 153 F.3d at 1195.

Here, the language, structure, and context of the kidnappingstatute is remarkably similar to that of the weapon of massdestruction statute reviewed by the court in McVeigh. Comparebelow:

Section 1201 provides in relevant part:

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when-

(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary if the person was alive when the transportation began; . . .

shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a)(1) (emphasis added).

Section 2332a provides in pertinent part:

A person who uses, or attempts or conspires to use, a weapon of mass destruction . . .

(2) against any person within the United States; .

shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

18 U.S.C. § 2332a (emphasis added).

In light of Supreme Court's instruction that lower courtsshould look to other statutes as guidance in their analysis ofthis sentencing issue, the McVeigh court's interpretation of §2332a is strong evidence that the "death of any person" provisionwithin the kidnapping statute, like the weapon offense statute,is a sentencing factor, not a substantive element of the offense.

C. Constitutional Avoidance

Finally, when the issue of whether a fact is an element of anoffense or a sentencing consideration arises, the doctrines ofconstitutional doubt and lenity may be implicated. Jones, 119S.Ct. at 1222-23. "The doctrine of constitutional doubt providesthat where an otherwise acceptable construction of a statutewould raise serious constitutional problems, the court willconstrue the statute to avoid such problems unless suchconstruction is plainly contrary to the intent of Congress." NewYork v. United States, 505 U.S. 144, 170, 112 S.Ct. 2408, 2425,120 L.Ed.2d 120 (1992). This canon is followed out of respect forCongress, which courts assume legislates in light ofconstitutional limitations. Almendarez-Torres, 118 S.Ct. at1228. The constitutional doubt doctrine, however, does not applymechanically whenever there arises a significant constitutionalquestion to which an answer is not obvious, because where thestatute does not raise "serious" constitutional questions,application of the doctrine is unnecessary. Id.

Alternatively, "[t]he rule of lenity provides that ambiguityconcerning the ambit of criminal statutes should be resolved infavor of lenity." United States v. Bass, 404 U.S. 336, 347, 92S.Ct. 515, 522, 30 L.Ed.2d 488 (1971). "[W]here a statute issusceptible of two constructions, by one of which grave anddoubtful constitutional questions arise and by the other of whichsuch questions are avoided, our duty is to adopt the latter."Jones, 119 S.Ct. at 1222. Yet, as with the constitutional doubtdoctrine, if the court harbors no "grave and doubtful" concernswith regard to the constitutional construction of a criminalstatute, then the lenity doctrine is equally inapplicable.Almendarez-Torres, 118 S.Ct. at 1228.

Here, the constitutionality of the kidnapping statute is not indoubt. For the reasons stated above, although Due Process andSixth Amendment concerns are always present when a courtaddresses the sentencing factor/offense element dilemma, thoseconcerns have been dispelled here. Based upon the language,structure, and text of § 1201(a)(1), and combined with theapplicable extrinsic evidence provided for in the McVeighdecision, there is little doubt that Congress intended "the deathof any person" provision within the kidnapping statute to be asentencing factor, not an element of the kidnapping offense.

Accordingly, applying the analysis of the Jones decision tothis case, the Court concludes that it should construe "the deathof any person" provision within 18 U.S.C. § 1201(a)(1) as asentencing factor, not as a substantive element of the offense.Therefore, the Court must advise Defendant that if he pleadsguilty to Count II of the Indictment, he faces a mandatorysentence of life imprisonment if the Government proves by apreponderance of theevidence at sentencing that a death resulted from the offendingconduct.

II. Count VII, 18 U.S.C. § 2261A, Interstate Stalking

Turning now to Count VII of the Indictment, the Governmentalleges that Defendant violated 18 U.S.C. § 2261A, and penaltysubsections (b)(1), (b)(3) and (b)(4) of 18 U.S.C. § 2261, bytraveling across a state line with the intent to injure his wifeand, in the course of such travel, did in fact place his wife inreasonable fear of death and serious bodily injury. Indictment p.8 (Docket No. 12). The Government, however, has not alleged inCount VII any facts relevant to the aggravating factors listed inthe penalty subsection of § 2261. Consequently, the Court facesthe question as to whether the factors listed in the penaltysubsection of § 2261 are elements of the interstate stalkingoffense or, rather, sentencing considerations only. For thefollowing reasons, there is no doubt that the factors listed in §2261(b) are sentencing considerations only and, as such, theGovernment's failure to allege the existence of any of thesefacts in Count VII is irrelevant to a finding of Defendant'sguilt of interstate stalking.

18 U.S.C. § 2261A, the interstate stalking statute provides:

Whoever travels across a state line . . . with the intent to injure or harass another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or the serious bodily injury [to] . . ., that person or a member of that person's immediate family . . . shall be punished as provided in section 2261 of this title.

It is apparent from the plain text of the interstate stalkingstatute that it is a unitary offense, and that it may becommitted without any injury befalling the victim or the victim'sfamily whatsoever. Thus, the interstate stalking statute, likethe kidnapping statute, stands on its own "grammatical feet."See Jones, 119 S.Ct. at 1219. As indicated above, if an offensestands on its own, it is evidence that Congress intended otherprovisions which relate to the unitary substantive offense to besentencing considerations only, not additional offense elements.Id.

Additionally, the title of a statute and the heading of asection are "tools available for the resolution of a doubt aboutthe meaning of a statute." Almendarez-Torres, 118 S.Ct. at1226. A title that contains the word "penalties" more often thannot signals that a provision deals with penalties for asubstantive offense. Id. Here, § 2261A specifically directs thereader to subsection (b) of § 2261, which is entitled"penalties," in order to determine the appropriate punishment forindividuals convicted of interstate stalking.

18 U.S.C. § 2261 provides in relevant part:

(b) Penalties.A person who violates this section or section 2261A shall be fined under this title, imprisoned-

(1) for life or any term of years, if death of the victim results;

(2) for not more than 20 years if permanent disfigurement or life threatening bodily injury to the victim results;

(3) for not more than 10 years, if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense;

(4) as provided for the applicable conduct under chapter 109A if the offense would constitute an offense under chapter 109A . . .;

(5) for not more than 5 years, in any other case, or both fined and imprisoned.

Because the aforementioned subsection is entitled "penalties,"it is strong evidence that the subsection deals with penalties,not with elements of the underlying substantive offense.Therefore, as with the kidnapping statute, the plain language of§ 2261A supports the conclusion that the factors listed in §2261(b)(i) through (5) are sentencing considerations, notadditionalelements of the interstate stalking offense.

In addition, the Supreme Court in Jones specificallyrecognized that in certain circumstances, it is uncontrovertedthat Congress intended to treat the seriousness of a victim'sinjury as a sentencing consideration, not as an element of theunderlying substantive offense. Jones, 119 S.Ct. at 1220.Specifically, the Supreme Court stated in Jones that in certaininstances "Congress has explicitly treated serious bodily injuryas a sentencing factor, see e.g., 18 U.S.C. § 2262(b)(2)(interstate violation of protection order). . . ." Id. at 1219(emphasis added). Thus, the Supreme Court itself has explicitlyrecognized, albeit in dicta, that the penalty subsection of §2262 sets forth sentencing considerations only, not separateoffenses. Id.

Yet, of particular significance here, subsection (b) of § 2261is identical to subsection (b) of § 2262 in every respect exceptthat § 2261 also applies to § 2261A, but § 2262 does not (whichis perfectly appropriate, for it would be redundant for both §§2261 and 2262 to apply to 2261A).1 In light of this,therefore, it would run contrary to common sense and consistencyin statutory construction to interpret the penalty subsection of§ 2261 as setting forth additional elements of the interstatestalking offense, while adhering to the clear Congressionalintent to consider the factors set forth in subsection (b) of §2262 as sentencing considerations.2

Accordingly, based upon the plain text of §§ 2261A and 2261,together with clear Congressional intent and other extrinsicevidence, 18 U.S.C. § 2261(b) provides only sentencingconsiderations for violations of the interstate stalking statute,18 U.S.C. § 2261A.3

III. Conclusion

In conclusion, with respect to Count II, the Court interprets"the death of any person" provision within 18 U.S.C. § 1201(a)(1)as a sentencing factor, not as a substantive element of thekidnapping offense. Therefore, the Court will advise Defendant inany Rule 11 inquiry that if he pleads guilty to Count II of theIndictment, he faces a mandatory sentence of life imprisonment ifthe Government carries its burden on proof as to the resultingdeaths.

Additionally, the Court interprets the provisions containedwithin both 18 U.S.C. § 2261(b) and 18 U.S.C. § 2262(b) asdenominatingsentencing considerations, not as substantive elements of theunderlying offenses alleged in Counts VII, VIII, and IX of theIndictment. Therefore, the Court will advise Defendant in anyRule 11 inquiry that: (1) if he pleads guilty to Count VII, hefaces a maximum penalty of life imprisonment; (2) if he pleadsguilty to Count VIII, he faces a maximum penalty of imprisonmentof not more than 10 years; and (3) if he pleads guilty to CountIX, he faces a maximum sentence of life imprisonment.

SO ORDERED.

1. Section 2262 provides in pertinent part:

(b) Penalties.A person who violates this section shall be finedunder this title, imprisoned-

(1) for life or any term of years, if death of the victimresults;

(2) for not more than 20 years if permanent disfigurement oflife threatening bodily injury to the victim results;

(3) for not more than 10 years, if serious bodily injury to thevictim results or if the offender uses a dangerous weapon duringthe offense;

(4) as provided for the applicable conduct under chapter 109Aif the offense would constitute an offense under chapter 109A . ..;

(5) for not more than 5 years, in any other case, or both finedand imprisoned.

2. It should be noted that although the Indictment does notallege that Defendant violated § 2262(b)(2) specifically (seeJones, 119 S.Ct. at 1220), it would be illogical for this courtto construe subsections (b)(1) and (b)(5) of § 2262 as additionalelements of an offense, while treating subsection (b)(2) of §2262 as a sentencing factor.

3. The same analysis as to Count VII also applies to CountsVIII and IX of the Indictment. Count VIII, as with Count VII,alleges a violation of interstate stalking, but Count VIIIdiffers from Count VII only in that it alleges that Defendantviolated penalty subsections (b)(1) and (b)(3) of § 2261, whileCount VII alleges that Defendant violated subsections (b)(1),(b)(3), and (b)(4).

Alternatively, Count IX (interstate violation of protectionorder) specifically alleges that Defendant violated sections2262(a)(1), (b)(1), (b)(3), and (b)(4). But as discussedpreviously, with regard to § 2262, Congress has explicitlytreated the provisions in subsection (b) of § 2262 as sentencingfactors. See Jones, 119 S.Ct. at 1219. Therefore, here, it isunnecessary to examine these issues any further.

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