Three Strike Mandatory Sentencing (18 U.S.C. § 3559(c)): An Overview

October 22, 2010 – August 1, 2022 R41461

Three Strike Mandatory Sentencing
(18 U.S.C. § 3559(c)): An Overview
Updated August 1, 2022
Congressional Research Service
https://crsreports.congress.gov
R41461

Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

Summary
The federal three strikes provision calls for a mandatory term of life imprisonment for defendants
convicted of a serious violent felony who have two or more federal or state serious violent felony
convictions or one or more of such felony conviction plus one or more federal or state serious
drug conviction, 18 U.S.C. § 3559(c). The qualifying violent felonies are those specifically
enumerated within the section—murder, rape, violent robberies, extortion, among others—as well
as unenumerated felonies, that is, any state or federal 10-year felony that involve physical
violence or the threat of violence. The qualifying serious drug offenses are those punishable by
imprisonment for 10 years or more under state or federal law. The section creates an affirmative
defense in cases of robbery or arson when defendants can prove that an otherwise qualifying
conviction involved neither the fact nor threat of injury.
The question of whether a prior conviction counts as a strike for purposes of § 3559(c) depends
upon whether the prior conviction arose under a law that applies a standard that is the same or no
more inclusive than the standard found in § 3559(c).
Defendants have regularly challenged the constitutionality of the section and whether their felony
convictions constitute convictions for qualified offenses. One has proven successful. The section
lists two kinds of qualified unenumerated offenses: those that have as an element the use,
attempted use, or threatened use of physical force (the “force clause”) and those that involve the
risk of physical force (the “residual clause”). The government conceded in a recent case that the
risk clause is unconstitutionally vague and therefore inoperable. Otherwise, constitutional
challenges have been to no avail, at least thus far. Defendants have argued without success that:
(1) requiring the defendant to prove to a judge, by clear and convincing evidence, the
inapplicability of an injury free conviction offends the due process and jury trial principles
identified in Apprendi and its progeny; (2) the section results in the imposition of cruel and
unusual punishment in violation of the Eighth Amendment; (3) the mandatory sentencing
provision impermissibly intrudes upon the constitutional prerogatives of the federal courts in
violation of the separation of powers doctrine; (4) application of the section results in punishment
for prior convictions in violation of the double jeopardy clause of the Fifth Amendment and, in
some instances, of the constitutional prohibition on ex post facto laws; and (5) under some
circumstances, application of the section constitutes a violation of the equal protection component
of the due process clause of the Fifth Amendment.
The text of § 3559(c) is appended.
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

Introduction
A defendant convicted of a federal “serious violent felony” must be sentenced to life
imprisonment under the so-called three strikes law, 18 U.S.C. § 3559(c), if he has two prior state
or federal violent felony convictions or one such conviction and a serious drug offense
conviction.1
In 2009, Congress instructed the United States Sentencing Commission to report to it on the
operation of mandatory minimum sentencing statutes.2 More than 60% of the federal district court
judges responding to a subsequent commission survey indicated they considered federal
mandatory minimum sentences too high.3 Although the survey asked specifically about sentences
under other mandatory minimum statutes, it provided no opportunity for a response focused on
section 3559(c).4
Notice and Objections
Section 3559(c) requires prosecutors to follow the notice provisions of 21 U.S.C. § 851(a) if they
elect to ask the court to sentence a defendant under the three strikes provision.5 Section 851(a), in
turn, requires prosecutors to notify the court and the defendant of the government’s intention to
seek the application of section 3559(c) and to describe the prior convictions upon which the
government will rely.6 Without such notice, the court may not impose an enhanced sentence.7 The
purpose of the requirement “is to ensure the defendant is aware before trial that he faces possible
sentence enhancement as he assesses his legal options and to afford him a chance to contest
allegations of prior convictions.”8 As long as that dual purpose is served, however, a want of
meticulous compliance or complete accuracy is considered harmless.9 The objections most often

1 18 U.S.C. § 3559(c). The case law cited below suggests a continuous, but sparing invocation of the section.
2 P.L. 111-84, § 4713, 123 STAT. 2843 (2009).
3 United States Sentencing Commission, Results of Survey of United States District Judges: January 2010 through
March 2010, Question 1. Mandatory Minimums (June 2010), available at http://www.ussc.gov/Judge_Survey/2010/
JudgeSurvey_201006.pdf.
4 Id. A majority found the statutory mandatory minimums appropriate for trafficking in heroin, powder cocaine and
methamphetamine; for firearms offenses; for aggravated identity theft; for production and distribution of child
pornography; and for other child exploitation offenses. On the other hand, a majority found them too high for
trafficking in crack cocaine (76%) or marijuana (54%); or receipt of child pornography (71%). Id. In their many reports
relating to mandatory minimum sentencing statutes, the Sentencing Commission, which is tasked with promulgating
guidelines for the exercise of federal judges’ sentencing discretion, does not appear to have mentioned § 3559(c),
which bars the exercising of judicial sentencing discretion.
5 18 U.S.C. § 3559(c)(4).
6 21 U.S.C. § 851(a)(1) (“No person who stands convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous convictions to be relied upon....”). See, e.g., United States v.
Johnson, 915 F.3d 223, 225 (4th Cir. 2019); United States v. Sanchez, 586 F.3d 918, 929-30 (11th Cir. 2009) (“Prior to
trial, the Government notified the district court and Camejo, pursuant to 18 U.S.C. §851, that if Camejo was found
guilty of Counts 3, 4, or 5, it would ask the court to impose a life sentence, pursuant to 18 U.S.C. § 3559(c), because he
previously had been convicted in Florida circuit court of what §3559(c)(1)(A) deemed a ‘serious violent felony’ and
two ‘serious drug offenses’”).
7 21 U.S.C. § 821(a)(1); United States v. Hood, 615 F.3d 1293, 1302 (10th Cir. 2010); United States v. Baugham, 613
F.3d 291, 294 (D.C. Cir. 2010); United States v. Morales, 560 F.3d 112, 113 (2d Cir. 2009).
8 Baugham, 613 F.3d at 294-95; United States v. Lane, 591 F.3d 921, 927 (7th Cir. 2010).
9 Hood, 615 F.3d at 1302 (noting the appropriateness of “harmless error analysis” rather than “hypertechnical
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

raised are constitutional challenges and those that question the qualifications of prior convictions
as predicate offenses.
Predicate Offenses
Application of section 3559(c) requires either two serious violent felony convictions or a serious
violent felony conviction and a serious drug conviction.10
Serious Violent Felonies
The federal three strikes provision recognizes convictions for two categories of serious violent
felonies—one enumerated, the other general. The inventory of enumerated serious violent
felonies consists of the federal or state crimes of
- murder (as described in [18 U.S.C.] section 1111);
- manslaughter other than involuntary manslaughter (as described in [18 U.S.C.] section
1112);
- assault with intent to commit murder (as described in [18 U.S.C.] section 113(a));
- assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as
described in [18 U.S.C.] sections 2241 and 2242);
- abusive sexual contact (as described in [18 U.S.C.] sections 2244(a)(1) and (a)(2);
- kidnapping;11
- aircraft piracy (as described in section 46502 of Title 49);
- robbery (as described in [18 U.S.C.] section 2111, 2113, or 2118);
- carjacking (as described in [18 U.S.C. section] 2119);
- extortion;12
- arson;13
- firearms use;14
- firearms possession (as described in [18 U.S.C.] section 924(c)); or
- attempt, conspiracy, or solicitation to commit any of the above offenses.15
The more general, unenumerated category consists of “any other [state or federal] offense
punishable by a maximum term of imprisonment of 10 years or more that [either] has as an
element the use, attempted use, or threatened use of physical force against the person of another

approach”); Baugham, 613 F.3d at 295 (“Our case law also makes clear, however, that to comply with §851(a) the
information need not be perfect with respect to every jot and tittle”); United States v. Boudreau, 564 F.3d 431, 437 (6th
Cir. 2009) (“Indeed, we have regularly held that actual notice satisfies the requirements of Section 851(a)”).
10 18 U.S.C. § 3559(c)(1).
11 18 U.S.C. § 3559(c)(2)(E) (“the term ‘kidnapping’ means an offense that has as its elements the abduction,
restraining, confining, or carrying away of another person by force or threat of force”).
12 18 U.S.C. § 3559(c)(2)(C) (“the term ‘extortion’ means an offense that has as its elements the extraction of anything
of value from another person by threatening or placing that person in fear of injury to any person or kidnapping of any
person”).
13 18 U.S.C. § 3559(c)(2)(B) (“the term ‘arson’ means an offense that has as its elements maliciously damaging or
destroying any building, inhabited structure, vehicle, vessel, or real property by means of fire or an explosive”).
14 18 U.S.C. § 3559(c)(2)(D) (“the term ‘firearms use’ means an offense that has as its elements those described in [18
U.S.C.] section 924(c) or 929(a), if the firearm was brandished, discharged, or otherwise used as a weapon and the
crime of violence or drug trafficking crime during and relation to which the firearm was used was subject to
prosecution in a court of the United States or a court of a State, or both”).
15 18 U.S.C. § 3559(c)(2)(F)(i).
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

[the force clause] or that, by its nature, involves a substantial risk that physical force against the
person of another may be used in the course of committing the offense [the residual clause].”16
Among the enumerated offenses, arson offenses do not qualify as predicate offenses, if the
defendant can establish by clear and convincing evidence that he reasonably believed the offense
posed no threat to human life and that it in fact did not.17 By the same token, neither robbery,
attempted robbery, conspiracy to commit robbery, nor solicitation to commit robbery qualify, if
the defendant can establish by clear and convincing evidence that the offense involved neither the
use nor threatened use of a dangerous weapon and that no one suffered serious bodily injury as a
consequence of the crime.18
Among the unenumerated offenses, this same no-weapon, no-injury standard applies—those
otherwise qualifying 10-year felonies, marked by the use or threatened use of physical force
against another, do not qualify as predicate offenses, if the defendant can establish by clear and
convincing evidence that no weapon was used, and no injury sustained, in the course of the
offense.19
Serious Drug Offenses
Serious drug offenses for purposes of section 3559(c) consist of (a) federal drug kingpin
offenses;20 (b) the most severely punished of the federal drug trafficking offenses;21 (c) the
smuggling counterpart of the such trafficking offenses;22 and (d) state equivalents of any of these
three.23 When the prosecution relies upon a state drug trafficking conviction, for example, it must
show that the amount of drugs involved warranted treating it as an equivalent.24
Constitutional Considerations
Defendants have challenged the constitutionality of section 3559(c) on a number of grounds.
They have argued that: (1) requiring the defendant to prove to a judge, by clear and convincing
evidence, the inapplicability of an injury free conviction offends the principles identified in

16 18 U.S.C. § 3559(c)(2)(F)(ii). The government conceded in a recent case that the residual clause (in italics) is
unconstitutionally vague. See Gatewood v. United States, 979 F.3d 391, 394 (6th Cir. 2020) (“Because the statutory
residual clauses struck down in [United States v. ]Davis, [139 S. Ct. 2319 (2019)] has essentially the same language as
the statutory residual clause in § 3559(c)(2)(F)(ii), [the government] now concedes that the residual clause in
§ 3559(c)(2)(F)(ii) is unconstitutionally vague”); cf. Langford v. United States, 993 F.3d 633, 637 (8th Cir. 2021)
(suggesting enhancement based on the force clause (in italics above) or an enumerate offense suffered no such
infirmity).
17 18 U.S.C. § 3559(c)(3)(B).
18 18 U.S.C. § 3559(c)(3)(A); see United States v. Parker, 3 F.4th 178, 181 (5th Cir. 2021); In re Moore, 955 F.3d 384,
386-87 (4th Cir. 2020); United States v. Blake, 858 F.3d 1134, 1136-137 (8th Cir. 2017).
19 18 U.S.C. § 3559(c)(3)(A) (“Robbery . . .or an offense described in paragraph (2)(F)(ii) [the list of unenumerated
offenses] . . . .”).
20 21 U.S.C. § 848.
21 21 U.S.C. § 841(b)(1)(A).
22 21 U.S.C. § 960(b)(1)(A).
23 18 U.S.C. § 3559(c)(2)(H).
24 United States v. Sanchez, 586 F.3d 918, 930 (11th Cir. 2009) (“A state drug offense qualifies as a ‘serious drug
offense’ under § 3559(c) only if the offense, if prosecuted in federal court, would have been punishable under [21
U.S.C. § 841(b)(1)(A)] or [21 U.S.C. § 960(b)(1)(A)].... [For example,] to qualify as a ‘serious drug offense’ under
§ 3559(c)(2)(H)(ii), the drug offenses must have been punishable under 21 U.S.C. § 841(b)(1)(A). Section
841(b)(1)(A), however, is limited only to offenses involving ‘5 kilograms or more’ of cocaine or ‘50 grams or more’ of
cocaine base”) (parenthetical citations in the original).
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

Apprendi and its progeny; (2) the section results in the imposition of cruel and unusual
punishment in violation of the proscription of the Eighth Amendment; (3) the mandatory
sentencing provision impermissibly intrudes upon the constitutional prerogatives of the federal
courts in violation of the separation of powers doctrine; (4) section 3559(c) results in punishment
for prior convictions in violation of the double jeopardy clause of the Fifth Amendment and, in
some instances, the constitutional prohibition on ex post facto laws; and (5) under some
circumstances, application of section 3559(c) constitutes a violation of the equal protection
component of the due process clause of the Fifth Amendment.
Apprendi and Related Matters
Defendants sentenced under section 3559(c) have argued variously that: (1) allowing the court,
rather than the jury, to determine whether a defendant has sufficient, qualifying predicate offense
convictions to warrant imposition of a mandatory minimum sentence violates the defendant’s
constitutional right to a jury trial; (2) allowing the court, rather than the jury, to determine
whether a defendant’s predicate offense conviction involved an injury free offense violates the
defendant’s constitutional right to a jury trial; (3) requiring the defendant to prove that a predicate
offense conviction involved an injury-free offense in order to avoid the mandatory minimum
sentence shifts the burden of proof from the government in violation of the defendant’s
constitutional right to due process; and (4) the use of a clear and convincing standard rather than a
proof beyond a reasonable doubt standard to judge whether a conviction involved an injury free
offense also violates the defendant’s constitutional right to due process.
Jury Trial—Prior Conviction
In Apprendi and the cases that followed, the Supreme Court declared that any fact relied upon to
enhance a defendant’s sentence beyond the maximum otherwise set by statute must be proven to
the jury beyond a reasonable doubt unless the defendant waives that right.25 Those declarations,
however, have always included a caveat—except for the fact of a prior conviction.26 The caveat
reflects a pre-Apprendi decision, Almendarez-Torres, in which Court held that the fact of a prior
conviction might be treated as a sentencing factor to be determined by the sentencing court
without offending the defendant’s right to grand jury indictment, or by implication his right to a
jury trial and conviction only on proof beyond a reasonable doubt.27
Pointing to the Apprendi caveat or Almendarez-Torres or both, the federal appellate courts have
rejected the contention that section 3559(c) offends constitutional norms when it authorizes a
sentencing court to determine whether a defendant has prior predicate offense convictions
sufficient to trigger the section’s mandatory minimum provisions.28

25 See generally, Cong. Res. Serv., The Constitution of the United States of America: Analysis and Interpretation, S.
DOC. NO. 112-9, Amend. VI: Rights of the Accused, available at https://constitution.congress.gov/browse/essay/amdt6-
3-2-1-1/ALDE_00000938/.
26 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt”); Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi language); United States v.
Booker, 543 U.S. 220, 244 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt”).
27 Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247 (1998).
28 United States v. House, 825 F.3d 381, 388 (8th Cir. 2016); United States v. Harris, 741 F.3d 1245, 1249-50 (11th
Cir. 2014); United States v. Snype, 441 F.3d 119, 148 (2d Cir. 2006) (“Thus, Almendarez-Torres continues to bind this
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

No Injury Exception
Almendarez-Torres does not speak to the validity of assigning sentencing courts the task of
determining whether a defendant has shown by clear and convincing evidence that his robbery or
arson convictions involved offenses free of physical injury or free of the involvement of
dangerous weapons. Instead, the courts have rejected constitutional challenges on such grounds
by pointing to other pre-Apprendi cases—Patterson and Parke—which held that, once the
elements of an offense have been constitutionally established, a statute may assign the task of
determining the existence of mitigating sentencing considerations to the sentencing court under
any burden or standard.29
Cruel and Unusual Punishment
The Eighth Amendment prohibits infliction of cruel and unusual punishments.30 Defendants
sentenced under section 3559(c) have occasionally contended that a sentence of life imprisonment
without the possibility of parole—since there is no parole in the federal criminal justice system
for any crime committed after 1987—violates this prohibition. The Supreme Court precedents
provide some limited support, but are not as helpful as they might be. In Solem, the Court held
that the imposition of a sentence of life imprisonment without the possibility of parole under a
state recidivist statute constituted a cruel and unusual punishment when based on three relatively
minor property offenses.31 In Graham, it held that imposition of a sentence of life imprisonment
without the possibility of parole constituted a cruel and unusual punishment when imposed upon
a child for a nonhomicide offense.32 Yet in between the two, in Harmelin and Ewing, a divided
Court found no Eighth Amendment impediment to imposition of a sentence of life imprisonment
without the possibility of parole for a serious drug offense or to imposition of a lengthy prison
term under a state three strike statute following serious property offense convictions.33
The Court has yet to address the issue in a case arising under section 3559(c), but each of the
lower federal appellate courts to consider the question has rejected the Eighth Amendment
argument.34

court in its application of Apprendi.... With this understanding of the law, we identify no Sixth Amendment error in the
district court’s findings as to the fact of Snype’s prior state robbery convictions. Four of our sister circuits have
considered this question and reached the same conclusion”) (citing United States v. Cooper, 375 F.3d 1041, 1053 n.3
(10th Cir. 2004); United States v. Bradshaw, 281 F.3d 278, 294 (1st Cir. 2002); United States v. Weaver, 267 F.3d 231,
251 (3d Cir. 2001); United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001)).
29 United States v. Matthews, 545 F.3d 223, 227 (2d Cir. 2008) (citing Patterson v. New York, 432 U.S. 197, 207-08
(1977) and Parke v. Raley, 506 U.S. 20, 26-27 (1992), and citing in accord United States v. Contreras, 536 F.3d 1167,
1173-174 (10th Cir. 2008); Bradshaw, 281 F.3d at 296-97; Davis, 260 F.3d at 970; United States v. Gray, 260 F.3d
1267, 1279 (11th Cir. 2001); United States v. Ferguson, 211 F.3d 878, 886-87 (5th Cir. 2000)); United States v.
Gatewood, 230 F.3d 186, 190 (6th Cir. 2000); United States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999); United
States v. Wicks, 132 F.3d 383, 388-89 (7th Cir. 1997).
30 U.S. Const. Amend. VIII; see generally Cong. Res. Serv., The Constitution of the United States of America: Analysis
and Interpretation, S. DOC. NO. 112-9, Amend VIII, available at https://constitution.congress.gov/browse/essay/amdt8-
2-1-2-2/ALDE_00001270/.
31 Solem v. Helm, 463 U.S. 277, 303 (1983).
32 Graham v. Florida, 560 U.S. 48, 82 (2010).
33 Harmelin v. Michigan, 501 U.S. 957, 904, 1004 (1991); Ewing v. California, 538 U.S. 11, 30-1 (2003).
34 United States v. Rose, 587 F.3d 695, 704-05 (5th Cir. 2009); United States v. Gurule, 461 F.3d 1238, 1247 (10th Cir.
2006); United States v. Snype, 441 F.3d 119, 152 (2d Cir. 2006); United States v. Kaluna, 192 F.3d 1188, 1199-1200
(9th Cir. 1999); United States v. DeLuca, 137 F.3d 24, 40 n.19 (1st Cir. 1998); United States v. Washington, 109 F.3d
335, 337-38 (7th Cir. 1997); United States v. Farmer, 73 F.3d 836, 840 (8th Cir. 1996); cf., Matthews v. United States,
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Separation of Powers
The Constitution vests the judicial power of the United States in the Supreme Court “and in such
inferior Courts as the Congress may from time to time ordain and establish.”35 Defendants
sentenced under section 3559(c) have sometimes argued that, by denying judges sentencing
discretion, the section impermissibly intrudes upon the judicial power of the courts. The argument
has been undermined by Supreme Court pronouncements in other contexts that “Congress has the
power to define criminal punishments without giving the courts any sentencing discretion.”36 The
lower federal appellate courts have yet to find the argument compelling.37
Double Jeopardy and Ex Post Facto
The Fifth Amendment ensures that no “person be subject for the same offence to be twice put in
jeopardy of life or limb.”38 The Supreme Court has said in other contexts that the double jeopardy
clause protects against both successive prosecutions and successive punishments for the same
offense.39 Defendants sentenced under section 3559(c) have occasionally argued that to do so is to
punish them twice for their underlying predicate offenses. The courts have met the argument with
the observation that “the Supreme Court has long since determined that recidivist statutes do not
violate double jeopardy because ‘the enhanced punishment imposed for the later offense is not to
be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a
stiffened penalty for the latest crime, which is considered to be an aggravated offense because a
repetitive one.’”40
Ex post facto contentions have failed for much the same reason. The Constitution forbids the
passage of ex post facto laws by either the United States or the states.41 The proscription covers
1st. Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a
crime, or makes it greater than it was, when committed. 3d. Every law that changes the

682 F.3d 180, 183 (2d Cir. 2012).
35 U.S. Const. Art. III, §1; see generally Cong. Res. Serv., The Constitution of the United States of America: Analysis
and Interpretation, S. DOC. NO. 112-9, Art. I, § 1, available at https://constitution.congress.gov/browse/essay/artI-S1-2-
1/ALDE_00000039/.
36 Chapman v. United States, 500 U.S. 453, 467 (1991); see also Mistretta v. United States, 488 U.S. 361, 364 (1989)
(“[T]he scope of judicial discretion with respect to a sentence is subject to congressional control”).
37 See United States v. Harris, 741 F.3d 1245, 1250 (11th Cir. 2014); United States v. Gonzalez, 682 F.3d 201, 203 (2d
Cir. 2012); United States v. Gurule, 461 F.3d 1238, 1246 (10th Cir. 2006) (“As for the Three Strikes statute in
particular, the few reported decisions of which we are aware from other circuits are unanimous in rejecting this
[separation of powers] argument.... We agree with these precedents”) (citing United States v. Kaluna, 192 F.3d 1188,
1199 (9th Cir. 1999); United States v. Rasco, 123 F.3d 222, 226-27 (5th Cir. 1997); United States v. Washington, 109
F.3d 335, 338 (7th Cir. 1997).
38 U.S. Const. Amend. V; see generally Cong. Res. Serv., The Constitution of the United States of America: Analysis
and Interpretation, S. DOC. NO. 112-9, Amend. V, available at https://constitution.congress.gov/browse/essay/amdt5-2-
2/ALDE_00000858/.
39 United States v. Dixon, 509 U.S. 688, 696 (1993); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
40 United States v. Dávila-Félix, 763 F.3d 105, 113 n.8 (1st Cir. 2014); Kaluna, 192 F.3d at 1198-99 (quoting Witte v.
United States, 515 U.S. 389, 400 (1995) and Gryger v. Burke, 334 U.S. 728, 732 (1948)); see also Washington, 109
F.3d at 338; United States v. Farmer, 73 F.3d 836, 840 (8th Cir. 1996).
41 U.S. Const. Art. I, §§ 9, 10; see generally Cong. Res. Serv., The Constitution of the United States of America:
Analysis and Interpretation, S. DOC. NO. 112-9, Art. I, 9, available at ttps://constitution.congress.gov/browse/essay/artI-
S9-C3-2/ALDE_00001089/.
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of the offense, in
order to convict the offender.42
In the case of section 3559(c), “the use of predicate felonies to enhance a defendant’s sentence
does not violate the Ex Post Facto Clause because such enhancements do not represent additional
penalties for earlier crimes, but rather stiffen the penalty for the latest crime committed by the
defendant.”43
Equal Protection
The equal protection component of the due process clause of the Fifth Amendment prohibits
prosecution “based on an unjustifiable standard such as race, religion, or other arbitrary
classification.”44 To prevail on a facially-neutral equal protection claim, a defendant must show
an intentionally motivated discriminatory effect.45 Defendants who claimed that section 3559(c)
has a disparate racial impact have been unable to show that it was crafted for that purpose.46

42 Stogner v. California, 539 U.S. 607, 612 (2003) (quoting Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798)); see also
Johnson v. United States, 529 U.S. 694, 699 (2000).
43 United States v. Abraham, 386 F.3d 1033, 1038 (11th Cir. 2004); Kaluna, 192 F.3d at 1199; United States v. Rasco,
123 F.3d 222, 227 (5th Cir. 1997); Washington, 109 F.3d at 338; Farmer, 73 F.3d at 840-41.
44 United States v. Armstrong, 517 U.S. 456, 464 (1996).
45 Id. at 465.
46 United States v. Washington, 109 F.3d 335, 338 (7th Cir. 1997); United States v. Farmer, 73 F.3d 836, 841 (8th Cir.
1996). Equally unsuccessful was a defendant who claimed an equal protection violation based on disparate sentencing
patterns from one state to another, United States v. Wicks, 132 F.3d 383, 389 (7th Cir. 1997) (“Certain felonies—those
described in (F)(i)—it [(Congress)] considered serious enough to include no matter how Draconian or lenient their
treatment may be under state law, while others—those described in (F)(ii)—are subject to a congressional leveler
through the requirement of the ten-year term of imprisonment. There is no federalism or equal protection issue at all in
(F)(i), and none that survives rational basis analysis in (F)(ii)”).
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Appendix. 18 U.S.C. 3559(c)(text)
(c) Imprisonment of certain violent felons.—
(1) Mandatory life imprisonment.—Notwithstanding any other provision of law, a person who
is convicted in a court of the United States of a serious violent felony shall be sentenced to life
imprisonment if—
(A) the person has been convicted (and those convictions have become final) on separate
prior occasions in a court of the United States or of a State of—
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(B) each serious violent felony or serious drug offense used as a basis for sentencing under
this subsection, other than the first, was committed after the defendant’s conviction of the
preceding serious violent felony or serious drug offense.
(2) Definitions.—For purposes of this subsection—
(A) the term “assault with intent to commit rape” means an offense that has as its elements
engaging in physical contact with another person or using or brandishing a weapon against
another person with intent to commit aggravated sexual abuse or sexual abuse (as described
in sections 2241 and 2242);
(B) the term “arson” means an offense that has as its elements maliciously damaging or
destroying any building, inhabited structure, vehicle, vessel, or real property by means of fire
or an explosive;
(C) the term “extortion” means an offense that has as its elements the extraction of anything
of value from another person by threatening or placing that person in fear of injury to any
person or kidnapping of any person;
(D) the term “firearms use” means an offense that has as its elements those described in
section 924(c) or 929(a), if the firearm was brandished, discharged, or otherwise used as a
weapon and the crime of violence or drug trafficking crime during and relation to which the
firearm was used was subject to prosecution in a court of the United States or a court of a
State, or both;
(E) the term “kidnapping” means an offense that has as its elements the abduction,
restraining, confining, or carrying away of another person by force or threat of force;
(F) the term “serious violent felony” means—
(i) a Federal or State offense, by whatever designation and wherever committed,
consisting of murder (as described in section 1111); manslaughter other than involuntary
manslaughter (as described in section 1112); assault with intent to commit murder (as
described in section 113(a)); assault with intent to commit rape; aggravated sexual abuse
and sexual abuse (as described in sections 2241 and 2242); abusive sexual contact (as
described in sections 2244(a)(1) and (a)(2); kidnapping; aircraft piracy (as described in
section 46502 of Title 49); robbery (as described in section 2111, 2113, or 2118);
carjacking (as described in 2119); extortion; arson; firearms use; firearms possession (as
described in section 924(c)); or attempt, conspiracy, or solicitation to commit any of the
above offenses; and
(ii) any other offense punishable by a maximum term of imprisonment of 10 years or
more that has as an element the use, attempted use, or threatened use of physical force
against the person of another or that, by its nature, involves a substantial risk that
physical force against the person of another may be used in the course of committing the
offense;
(G) the term “State” means a State of the United States, the District of Columbia, and a
commonwealth, territory, or possession of the United States; and
Congressional Research Service
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Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

(H) the term “serious drug offense” means—
(i) an offense that is punishable under section 401(b)(1)(A) or 408 of the Controlled
Substances Act (21 U.S.C. 841(b)(1)(A), 848) or section 1010(b)(1)(A) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(b)(1)(A); or
(ii) an offense under State law that, had the offense been prosecuted in a court of the
United States, would have been punishable under section 401(b)(1)(A) or 408 of the
Controlled Substances Act (21 U.S.C. 841(b)(1)(A), 848), or section 1010(b)(1)(A) of the
Controlled Substances Import and Export Act (21 U.S.C. 960(b)(1)(A)).
(3) Nonqualifying felonies.—
(A) Robbery in certain cases.—Robbery, an attempt, conspiracy, or solicitation to commit
robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for
sentencing under this subsection if the defendant establishes by clear and convincing
evidence that—
(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a
firearm or other dangerous weapon was involved in the offense; and
(ii) the offense did not result in death or serious bodily injury (as defined in section 1365)
to any person.
(B) Arson in certain cases.—Arson shall not serve as a basis for sentencing under this
subsection if the defendant establishes by clear and convincing evidence that—
(i) the offense posed no threat to human life; and
(ii) the defendant reasonably believed the offense posed no threat to human life.
(4) Information filed by United States Attorney.—The provisions of section 411(a) of the
Controlled Substances Act (21 U.S.C. 851(a)) shall apply to the imposition of sentence under this
subsection.
(5) Rule of construction.—This subsection shall not be construed to preclude imposition of the
death penalty.
(6) Special provision for Indian country.—No person subject to the criminal jurisdiction of an
Indian tribal government shall be subject to this subsection for any offense for which Federal
jurisdiction is solely predicated on Indian country (as defined in section 1151) and which occurs
within the boundaries of such Indian country unless the governing body of the tribe has elected
that this subsection have effect over land and persons subject to the criminal jurisdiction of the
tribe.
(7) Resentencing upon overturning of prior conviction.—If the conviction for a serious violent
felony or serious drug offense that was a basis for sentencing under this subsection is found,
pursuant to any appropriate State or Federal procedure, to be unconstitutional or is vitiated on the
explicit basis of innocence, or if the convicted person is pardoned on the explicit basis of
innocence, the person serving a sentence imposed under this subsection shall be resentenced to
any sentence that was available at the time of the original sentencing.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Congressional Research Service
9

Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview

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