Respondent was found guilty of violating 18 U.S.C. § 922(h),
which is part of Title IV of the Omnibus Crime Control and Safe
Streets Act of 1968 (Act). That provision prohibits previously
convicted felons from receiving a firearm that has traveled in
interstate commerce. The District Court sentenced respondent under
18 U.S.C. § 924(a) to five years' imprisonment, the maximum term
authorized for violation of § 922(h). The Court of Appeals affirmed
the conviction but remanded for resentencing. Noting that the
substantive elements of § 922(h) and 18 U.S.C.App. § 1202(a), which
is contained in Title VII of the Act, are identical as applied to a
convicted felon who unlawfully receives a firearm, the court
interpreted the Act to allow no more than the 2-year maximum
sentence provided by § 1202(a).
Held: A defendant convicted of violating § 922(h) is
properly sentenced under § 924(a) even though his conduct also
violates § 1202(a). Pp.
442 U. S.
118-126.
(a) Nothing in the language, structure, or legislative history
of the Act suggests that, because of the overlap between §§ 922(h)
and 1202(a), a defendant convicted under § 922(h) may be imprisoned
for no more than the maximum term specified in § 1202(a). Rather,
each substantive statute, in conjunction with its own sentencing
provision, operates independently of the other. Pp.
442 U. S.
118-121.
(b) The Court of Appeals erroneously relied on three principles
of statutory interpretation in construing § 1202(a) to override the
penalties authorized by § 924(a). The doctrine that ambiguities in
criminal statutes must be resolved in favor of lenity is not
applicable here, since there is no ambiguity to resolve. Nor can §
1202(a) be interpreted as implicitly repealing § 924(a) whenever a
defendant's conduct might violate both sections. Legislative intent
to repeal must be manifest in the "
positive repugnancy between
the provisions.'" United States v. Borden Co.,
308 U. S. 188,
308 U. S. 199.
In this case, the penalty provisions are fully capable of
coexisting because they apply to convictions under different
statutes. Finally, the maxim that statutes should be construed to
avoid constitutional questions offers no assistance here, since
this principle applies only when an alternative interpretation is
fairly possible from the language of the statute. There is simply
no basis in
Page 442 U. S. 115
the Act for reading the term "five" in § 924(a) to mean "two."
Pp.
442 U. S.
121-122.
(c) The statutory provisions at issue are not void for
vagueness, because they unambiguously specify the activity
proscribed and the penalties available upon conviction. Although
the statutes create uncertainty as to which crime may be charged,
and therefore what penalties may be imposed, they do so to no
greater extent than would a single statute authorizing alternative
punishments. So long as overlapping criminal provisions clearly
define the conduct prohibited and the punishment authorized, the
notice requirements of the Due Process Clause are satisfied. P.
442 U. S.
123.
(d) Nor are the statutes unconstitutional under the equal
protection component or Due Process Clause of the Fifth Amendment
on the theory that they allow the prosecutor unfettered discretion
in selecting which of two penalties to apply. A prosecutor's
discretion to choose between §§ 922(h) and 1202(a) is not
"unfettered"; selectivity in the enforcement of criminal laws is
subject to constitutional constraints. Whether to prosecute and
what charge to file or bring before a grand jury are decisions that
generally rest in the prosecutor's discretion. Just as a defendant
has no constitutional right to elect which of two applicable
federal statutes shall be the basis of his indictment and
prosecution, neither is he entitled to choose the penalty scheme
under which he will be sentenced. Pp.
442 U. S.
123-125.
(e) The statutes are not unconstitutional as impermissibly
delegating to the Executive Branch the Legislature's responsibility
to fix criminal penalties. Having clearly informed the courts,
prosecutors, and defendants of the permissible punishment
alternatives available under each statute, Congress has fulfilled
its duty. Pp.
442 U. S.
125-126.
581 F.2d 626, reversed.
MARSHALL, J., delivered the opinion for a unanimous Court.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case are two overlapping provisions of the
Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus
Page 442 U. S. 116
Act). [
Footnote 1] Both
prohibit convicted felons from receiving firearms, but each
authorizes different maximum penalties. We must determine whether a
defendant convicted of the offense carrying the greater penalty may
be sentenced only under the more lenient provision when his conduct
violates both statutes.
I
Respondent, a previously convicted felon, was found guilty of
receiving a firearm that had traveled in interstate commerce, in
violation of 18 U.S.C. § 922(h). [
Footnote 2] The District Court sentenced him under 18
U.S.C. § 924(a) to five years' imprisonment, the maximum term
authorized for violation of § 922(h). [
Footnote 3]
The Court of Appeals affirmed the conviction but, by a divided
vote, remanded for resentencing. 581 F.2d 626 (CA7 1978). The
majority recognized that respondent had been indicted and convicted
under § 922(h), and that § 924(a) permits five years' imprisonment
for such violations. 581 F.2d at 629. However, noting that the
substantive elements
Page 442 U. S. 117
of § 922(h) and 18 U.S.C.App. § 1202(a) are identical as applied
to a convicted felon who unlawfully receives a firearm, the court
interpreted the Omnibus Act to allow no more than the 2-year
maximum sentence provided by § 1202(a). 581 F.2d at 629. [
Footnote 4] In so holding, the Court of
Appeals relied on three principles of statutory construction.
Because, in its view, the "arguably contradict[ory]" penalty
provisions for similar conduct and the "inconclusive" legislative
history raised doubt whether Congress had intended the two penalty
provisions to coexist, the court first applied the doctrine that
ambiguities in criminal legislation are to be resolved in favor of
the defendant.
Id. at 630. Second, the court determined
that, since § 1202(a) was "Congress' last word on the issue of
penalty," it may have implicitly repealed the punishment provisions
of § 924(a). 581 F.2d at 630. Acknowledging that the "first two
principles cannot be applied to these facts without some
difficulty," the majority also invoked the maxim that a court
should, if possible, interpret a statute to avoid constitutional
questions.
Id. at 630-631. Here, the court reasoned, the
"prosecutor's power to select one of two statutes that are
identical except for their penalty provisions" implicated
"important constitutional protections."
Id. at 631.
Page 442 U. S. 118
The dissent found no basis in the Omnibus Act or its legislative
history for engrafting the penalty provisions of § 1202(a) onto §§
922(h) and 924(a). 581 F.2d at 638-639. Relying on
"the long line of cases . . . which hold that where an act may
violate more than one criminal statute, the government may elect to
prosecute under either, even if [the] defendant risks the harsher
penalty, so long as the prosecutor does not discriminate against
any class of defendants,"
the dissent further concluded that the statutory scheme was
constitutional.
Id. at 637.
We granted certiorari, 439 U.S. 1066 (1979), and now reverse the
judgment vacating respondent's 5-year prison sentence.
II
This Court has previously noted the partial redundancy of §§
922(h) and 1202(a), both as to the conduct they proscribe and the
individuals they reach.
See United States v. Bass,
404 U. S. 336,
404 U. S.
341-343, and n. 9 (1971). However, we find nothing in
the language, structure, or legislative history of the Omnibus Act
to suggest that, because of this overlap, a defendant convicted
under § 922(h) may be imprisoned for no more than the maximum term
specified in § 1202(a). As we read the Act, each substantive
statute, in conjunction with its own sentencing provision, operates
independently of the other.
Section 922(h), contained in Title IV of the Omnibus Act,
prohibits four categories of individuals from receiving "any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce."
See n 2,
supra. Persons who violate Title IV
are subject to the penalties provided by § 924(a), which authorizes
a maximum fine of $5,000 and imprisonment for up to five years.
See n 3,
supra. Section 1202(a), located in Title VII of the
Omnibus Act, forbids five categories of individuals from
"receiv[ing], possess[ing], or transport[ing] in commerce or
affecting commerce . . . any firearm." This same section authorizes
a maximum fine of
Page 442 U. S. 119
$10,000 and imprisonment for not more than two years.
See n 4,
supra.
While §§ 922 and 1202(a) both prohibit convicted felons such as
petitioner from receiving firearms, [
Footnote 5] each Title unambiguously specifies the
penalties available to enforce its substantive proscriptions.
Section 924(a) applies without exception to "[w]hoever violates any
provision" of Title IV, and § 922(h) is patently such a provision.
See 18 U.S.C. ch. 44; 82 Stat. 226, 234; S.Rep. No. 1097,
90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title
VII's substantive prohibitions and penalties are both enumerated in
§ 1202, its penalty scheme encompasses only criminal prosecutions
brought under that provision. On their face, these statutes thus
establish that § 924(a) alone delimits the appropriate punishment
for violations of § 922(h).
That Congress intended to enact two independent gun control
statutes, each fully enforceable on its own terms, is confirmed by
the legislative history of the Omnibus Act. Section 922(h) derived
from § 2(f) of the Federal Firearms Act of
Page 442 U. S. 120
1938,
442 U. S. 52
Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same
maximum prison term as § 924(a). Title IV of the Omnibus Act merely
recodified with some modification this "carefully constructed
package of gun control legislation," which had been in existence
for many years.
Scarborough v. United States, 431 U.
S. 563,
431 U. S. 570
(1977);
see United States v. Bass, supra at
404 U. S. 343
n. 10; 15 U.S.C. §§ 902, 905 (1964 ed.). By contrast, Title VII was
a "last-minute" floor amendment, "hastily passed, with little
discussion, no hearings, and no report."
United States v. Bass,
supra, at
404 U. S. 344,
and n. 11;
see Scarborough v. United States, supra at
431 U. S.
569-570, and n. 9. And the meager legislative debates
involving that amendment demonstrate no intention to alter the
terms of Title IV. Immediately before the Senate passed Title VII,
Senator Dodd inquired whether it would substitute for Title IV. 114
Cong.Rec. 14774 (1968). Senator Long, the sponsor of the amendment,
replied that § 1202 would "take nothing from," but merely "add to,"
Title IV. 114 Cong.Rec. 14774 (1968). Similarly, although Title VII
received only passing mention in House discussions of the bill,
Representative Machen made clear that the amendment would
"complement . . . the gun control legislation contained in title
IV."
Id. at 16286. Had these legislators intended to
preempt Title IV in cases of overlap, they presumably would not
have indicated that the purpose of Title VII was to complement
Title IV.
See Scarborough v. United States, supra, at
431 U. S. 573.
[
Footnote 6]
Page 442 U. S. 121
These discussions, together with the language and structure of
the Omnibus Act, evince Congress' clear understanding that the two
Titles would be applied independently. [
Footnote 7]
In construing § 1202(a) to override the penalties authorized by
§ 924(a), the Court of Appeals relied, we believe erroneously, on
three principles of statutory interpretation. First, the court
invoked the well established doctrine that ambiguities in criminal
statutes must be resolved in favor of lenity.
E.g., Rewis v.
United States, 401 U. S. 808,
401 U. S. 812
(1971);
United States v. Bass, 404 U.S. at
404 U. S. 347;
United States v. Culbert, 435 U.
S. 371,
435 U. S. 379
(1978);
United States v. Naftalin, 441 U.
S. 768,
441 U. S.
778-779 (1979);
Dunn v. United States, ante at
442 U. S.
112-113. Although this principle of construction applies
to sentencing as well as substantive provisions,
see Simpson v.
United States, 435 U. S. 6,
435 U. S. 14-15
(1978), in the instant case, there is no ambiguity to resolve.
Respondent unquestionably violated § 922(h), and § 924(a)
unquestionably permits five years' imprisonment for such a
violation. That § 1202(a) provides different penalties for
essentially the same conduct is no justification for taking
liberties with unequivocal statutory
Page 442 U. S. 122
language.
See Barrett v. United States, 423 U.
S. 212,
423 U. S. 217
(1976). By its express terms, § 1202(a) limits its penalty scheme
exclusively to convictions obtained under that provision. Where, as
here, "Congress has conveyed its purpose clearly, . . . we decline
to manufacture ambiguity where none exists."
United States v.
Culbert, supra at
435 U. S.
379.
Nor can § 1202(a) be interpreted as implicitly repealing §
924(a) whenever a defendant's conduct might violate both Titles.
For it is "not enough to show that the two statutes produce
differing results when applied to the same factual situation."
Radzanower v. Touche Ross & Co., 426 U.
S. 148,
426 U. S. 155
(1976). Rather, the legislative intent to repeal must be manifest
in the "
positive repugnancy between the provisions.'"
United States v. Borden Co., 308 U.
S. 188, 308 U. S. 199
(1939). In this case, however, the penalty provisions are fully
capable of coexisting, because they apply to convictions under
different statutes.
Finally, the maxim that statutes should be construed to avoid
constitutional questions offers no assistance here. This
"
cardinal principle' of statutory construction . . . is
appropriate only when [an alternative interpretation] is `fairly
possible'" from the language of the statute. Swain v.
Pressley, 430 U. S. 372,
430 U. S. 378
n. 11 (1977); see Crowell v. Benson, 285 U. S.
22, 285 U. S. 62
(1932); United States v. Sullivan, 332 U.
S. 689, 332 U. S. 693
(1948); Shapiro v. United States, 335 U. S.
1, 335 U. S. 31
(1948). We simply are unable to discern any basis in the Omnibus
Act for reading the term "five" in § 924(a) to mean "two."
III
In resolving the statutory question, the majority below
expressed "serious doubts about the constitutionality of two
statutes that provide different penalties for identical conduct."
581 F.2d at 633-634 (footnote omitted). Specifically, the court
suggested that the statutes might (1) be void for vagueness, (2)
implicate "due process and [equal protection interests] in avoiding
excessive prosecutorial discretion and in
Page 442 U. S. 123
obtaining equal justice," and (3) constitute an impermissible
delegation of congressional authority.
Id. at 631-633. We
find no constitutional infirmities.
A
It is a fundamental tenet of due process that "[n]o one may be
required at peril of life, liberty or property to speculate as to
the meaning of penal statutes."
Lanzetta v. New Jersey,
306 U. S. 451,
306 U. S. 453
(1939). A criminal statute is therefore invalid if it "fails to
give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden."
United States v.
Harriss, 347 U. S. 612,
347 U. S. 617
(1954).
See Connally v. General Construction Co.,
269 U. S. 385,
269 U. S.
391-393 (1926);
Papachristou v. Jacksonville,
405 U. S. 156,
405 U. S. 162
(1972);
Dunn v. United States, ante at
442 U. S.
112-113. So too, vague sentencing provisions may pose
constitutional questions if they do not state with sufficient
clarity the consequences of violating a given criminal statute.
See United States v. Evans, 333 U.
S. 483 (1948);
United States v. Brown,
333 U. S. 18
(1948);
cf. Giaccio v. Pennsylvania, 382 U.
S. 399 (1966).
The provisions in issue here, however, unambiguously specify the
activity proscribed and the penalties available upon conviction.
See supra at
442 U. S. 119.
That this particular conduct may violate both Titles does not
detract from the notice afforded by each. Although the statutes
create uncertainty as to which crime may be charged, and therefore
what penalties may be imposed, they do so to no greater extent than
would a single statute authorizing various alternative punishments.
So long as overlapping criminal provisions clearly define the
conduct prohibited and the punishment authorized, the notice
requirements of the Due Process Clause are satisfied.
B
This Court has long recognized that, when an act violates more
than one criminal statute, the Government may prosecute
Page 442 U. S. 124
under either so long as it does not discriminate against any
class of defendants.
See United States v. Beacon Brass
Co., 344 U. S. 43,
344 U. S. 456
(1952);
Rosenberg v. United States, 346 U.
S. 273,
346 U. S. 294
(1953) (Clark, J., concurring, joined by five Members of the
Court);
Oyler v. Boles, 368 U. S. 448,
368 U. S. 456
(1962);
SEC v. National Securities, Inc., 393 U.
S. 453,
393 U. S. 468
(1969);
United States v. Naftalin, 441 U.S. at
441 U. S. 778.
Whether to prosecute and what charge to file or bring before a
grand jury are decisions that generally rest in the prosecutor's
discretion.
See Confiscation
Cases, 7 Wall. 454 (1869);
United States v.
Nixon, 418 U. S. 683,
418 U. S. 693
(1974);
Bordenkircher v. Hayes, 434 U.
S. 357,
434 U. S. 364
(1978).
The Court of Appeals acknowledged this "settled rule" allowing
prosecutorial choice. 581 F.2d at 632. Nevertheless, relying on the
dissenting opinion in
Berra v. United States, 351 U.
S. 131 (1956), [
Footnote
8] the court distinguished overlapping statutes with identical
standards of proof from provisions that vary in some particular.
581 F.2d at 632-633. In the court's view, when two statutes
prohibit "exactly the same conduct," the prosecutor's "selection of
which of two penalties to apply" would be "unfettered."
Id. at 633, and n. 11. Because such prosecutorial
discretion could produce "unequal justice," the court expressed
doubt that this form of legislative redundancy was constitutional.
Id. at 631. We find this analysis factually and legally
unsound.
Contrary to the Court of Appeals' assertions, a prosecutor's
discretion to choose between §§ 922(h) and 1202(a) is not
Page 442 U. S. 125
"unfettered." Selectivity in the enforcement of criminal laws
is, of course, subject to constitutional constraints. [
Footnote 9] And a decision to proceed
under § 922(h) does not empower the Government to predetermine
ultimate criminal sanctions. Rather, it merely enables the
sentencing judge to impose a longer prison sentence than § 1202(a)
would permit, and precludes him from imposing the greater fine
authorized by § 122(a). More importantly, there is no appreciable
difference between the discretion a prosecutor exercises when
deciding whether to charge under one of two statutes with different
elements and the discretion he exercises when choosing one of two
statutes with identical elements. In the former situation, once he
determines that the proof will support conviction under either
statute, his decision is indistinguishable from the one he faces in
the latter context. The prosecutor may be influenced by the
penalties available upon conviction, but this fact, standing alone,
does not give rise to a violation of the Equal Protection or Due
Process Clause.
Cf. Rosenberg v. United States, supra at
346 U. S. 294
(Clark, J., concurring);
Oyler v. Boles, supra at
368 U. S. 456.
Just as a defendant has no constitutional right to elect which of
two applicable federal statutes shall be the basis of his
indictment and prosecution, neither is he entitled to choose the
penalty scheme under which he will be sentenced.
See
U.S.Const., Art. II, §§ 2, 3; 28 U.S.C. §§ 515, 516;
United
States v. Nixon, supra at
418 U. S.
694.
C
Approaching the problem of prosecutorial discretion from a
slightly different perspective, the Court of Appeals postulated
that the statutes might impermissibly delegate to the Executive
Branch the Legislature's responsibility to fix criminal
penalties.
Page 442 U. S. 126
See United States v.
Hudson, 7 Cranch 32,
11
U. S. 34 (1812);
United States v. Grimaud,
220 U. S. 506,
220 U. S.
516-517,
220 U. S. 519
(1911);
United States v. Evans, 333 U.S. at
333 U. S. 486.
We do not agree. The provisions at issue plainly demarcate the
range of penalties that prosecutors and judges may seek and impose.
In light of that specificity, the power that Congress has delegated
to those officials is no broader than the authority they routinely
exercise in enforcing the criminal laws. Having informed the
courts, prosecutors, and defendants of the permissible punishment
alternatives available under each Title, Congress has fulfilled its
duty.
See United States v. Evans, supra at
333 U. S. 486,
333 U. S. 492,
333 U. S.
495.
Accordingly, the judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
82 Stat.197.
[
Footnote 2]
In pertinent part, 18 U.S.C. § 922(h) provides:
"It shall be unlawful for any person --"
"(1) who is under indictment for, or who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year;"
"(2) who is a fugitive from justice;"
"(3) who is an unlawful user of or addicted to marihuana or any
depressant or stimulant drug . . . or narcotic drug . . . ; or"
"(4) who has been adjudicated as a mental defective or who has
been committed to any mental institution;"
"to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce."
[
Footnote 3]
Title 18 U.S.C. § 924(a) provides in relevant part:
"Whoever violates any provision of this chapter . . . shall be
fined not more than $5,000, or imprisoned not more than five years,
or both, and shall become eligible for parole as the Board of
Parole shall determine."
[
Footnote 4]
Section 1202(a) states:
"Any person who -- "
"(1) has been convicted by a court of the United States or of a
State or any political subdivision thereof of a felony, or"
"(2) has been discharged from the Armed Forces under
dishonorable conditions, or"
"(3) has been adjudged by a court of the United States or of a
State or any political subdivision thereof of being mentally
incompetent, or"
"(4) having been a citizen of the United States has renounced
his citizenship, or"
"(5) being an alien is illegally or unlawfully in the United
States,"
"and who receives, possesses, or transports in commerce or
affecting commerce, after the date of enactment of this Act, any
firearm shall be fined not more than $10,000 or imprisoned for not
more than two years, or both."
18 U.S.C.App. § 1202(a).
[
Footnote 5]
Even in the case of convicted felons, however, the two statutes
are not coextensive. For example, Title VII defines a felony as
"any offense punishable by imprisonment for a term exceeding one
year, but does not include any offense (other than one involving a
firearm or explosive) classified as a misdemeanor under the laws of
a State and punishable by a term of imprisonment of two years or
less."
18 U.S.C.App. § 1202(c)(2). Under Title IV, "a crime punishable
by imprisonment for a term exceeding one year," 18 U.S.C. §
922(h)(1), excludes
"(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business practices .
. or"
"(B) any State offense (other than one involving a firearm or
explosive) classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or less."
18 U.S.C. § 921(a)(20).
In addition, the Commerce Clause elements of §§ 922(h) and
1202(a) may vary slightly.
See Barrett v. United States,
423 U. S. 212
(1976);
Scarborough v. United States, 431 U.
S. 563,
431 U. S.
571-572 (1977).
[
Footnote 6]
Four months after enacting the Omnibus Act, the same Congress
amended and reenacted Titles IV and VII as part of the Gun Control
Act of 1968. 82 Stat. 1213. This latter Act also treats the
provisions of Titles IV and VII as independent and self-contained.
Title I of the Gun Control Act amended Title IV,
compare
82 Stat. 225 with 82 Stat. 1214, and Title III of the Gun Control
Act amended Title VII.
Compare 82 Stat. 236
with
82 Stat. 1236. The accompanying legislative Reports nowhere
indicate that the sentencing scheme of § 1202(a) was to govern
convictions under § 922.
See H.R.Conf.Rep. No.1956, 90th
Cong., 2d Sess., 31, 34 (1968); S.Rep. No. 1501, 90th Cong., 2d
Sess., 21, 37 (1968).
[
Footnote 7]
The anomalies created by the Court of Appeals' decision further
suggest that Congress must have intended only the penalties
specified in § 924(a) to apply to violations of § 922(h). For
example, a person who received a firearm while under indictment for
murder would be subject to five years' imprisonment, since only §
922(h) includes those under indictment for a felony. 18 U.S.C. §
922(h)(1). If he received the firearm after his conviction,
however, the term of imprisonment could not exceed two years.
Similarly, because § 922(h) alone proscribes receipt of ammunition,
a felon who obtained a single bullet could receive a 5-year
sentence, while receipt of a firearm would be punishable by no more
than two years' imprisonment under § 1202(a). In addition, the
Court of Appeals' analysis leaves uncertain the result that would
obtain if a sentencing judge wished to impose a maximum prison
sentence and a maximum fine for conduct violative of both Titles.
The doctrine of lenity would suggest that the $5,000 maximum of §
924(a) and the 2-year maximum of § 1202(a) would apply. However, if
the doctrine of implied repeal controls, arguably the $10,000 fine
authorized by § 1202(a) could be imposed for a violation of §
922(h).
See infra at
442 U. S.
122.
[
Footnote 8]
Berra involved two tax evasion statutes, which the
Court interpreted as proscribing identical conduct. The defendant,
who was charged and convicted under the felony provision, argued
that the jury should have been instructed on the misdemeanor
offense as well. The Court rejected this contention and refused to
consider whether the defendant's sentence was invalid because in
excess of the maximum authorized by the misdemeanor statute. The
dissent urged that permitting the prosecutor to control whether a
particular act would be punished as a misdemeanor or a felony
raised "serious constitutional questions." 351 U.S. at
351 U. S.
139-140.
[
Footnote 9]
The Equal Protection Clause prohibits selective enforcement
"based upon an unjustifiable standard such as race, religion, or
other arbitrary classification."
Oyler v. Boles,
368 U. S. 448,
368 U. S. 456
(1962). Respondent does not allege that his prosecution was
motivated by improper considerations.