OCTOBER TERM, 2001
Syllabus
HARRIS
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 00-10666. Argued March 25, 2002-Decided June 24, 2002
Petitioner, who sold illegal narcotics at his pawnshop with an
unconcealed semiautomatic pistol at his side, was arrested for
violating,
inter alia, 18 U. S. C. § 924(c)(I)(A), which
provides in relevant part that a person who in relation to a drug
trafficking crime uses or carries a firearm "shall, in addition to
the punishment provided for such crime," "(i) be sentenced to a
term of imprisonment of not less than 5 years; (ii) if the firearm
is brandished, be sentenced to ... not less than 7 years; and (iii)
if the firearm is discharged, be sentenced to ... not less than 10
years." Because the Government proceeded on the assumption that the
provision defines a single crime and that brandishing is a
sentencing factor to be found by the judge following trial, the
indictment said nothing about brandishing or subsection (ii),
simply alleging the elements from the principal paragraph.
Petitioner was convicted. When his presentence report recommended
that he receive the 7-year minimum sentence, he objected, arguing
that brandishing was an element of a separate statutory offense for
which he was not indicted or convicted. At the sentencing hearing,
the District Court overruled his objection, found that he had
brandished the gun, and sentenced him to seven years in prison.
Affirming, the Fourth Circuit rejected petitioner's statutory
argument and found that
McMillan v.
Pennsylvania,
477 U. S. 79,
foreclosed his argument that if brandishing is a sentencing factor,
the statute is unconstitutional under
Apprendi v.
New
Jersey, 530 U. S.
466. In
Apprendi, this Court held that other than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum is, in effect, an
element of the crime, which must be submitted to a jury, and proved
beyond a reasonable doubt (and, in federal prosecutions, alleged in
an indictment handed down by a grand jury). But 14 years earlier,
McMillan sustained a statute that increased the minimum
penalty for a crime, though not beyond the statutory maximum, when
the judge found that the defendant had possessed a firearm.
Held: The judgment is affirmed.
243
F.3d 806, affirmed.
JUSTICE KENNEDY delivered the opinion of the Court with respect
to Parts I, II, and IV, concluding:
546
Syllabus
1. As a matter of statutory interpretation, § 924(c)(1)(A)
defines a single offense, in which brandishing and discharging are
sentencing factors to be found by the judge, not offense elements
to be found by the jury. Pp. 552-556.
(a) The prohibition's structure suggests that brandishing and
discharging are sentencing factors. Federal laws usually list all
offense elements in a single sentence and separate the sentencing
factors into subsections.
Castillo v.
United States,
530 U. S. 120,
125. The instant statute's lengthy principal paragraph lists the
elements of a complete crime. Toward the end of the paragraph is
the word "shall," which often divides offense-defining provisions
from sentence-specifying ones.
Jones v.
United
States, 526 U. S.
227, 233. And following "shall" are the separate subsections,
which explain how defendants are to "be sentenced." Thus this Court
can presume that the principal paragraph defines a single crime and
its subsections identify sentencing factors. Pp. 552-553.
(b) As
Jones illustrates, the statute's text might
provide evidence to the contrary, but the critical textual clues
here reinforce the singleoffense interpretation. Brandishing has
been singled out as a paradigmatic sentencing factor,
Castillo,
supra, at 126. Under the Sentencing Guidelines, moreover,
brandishing and discharging are factors that affect sentences for
numerous crimes. The incremental changes in the minimum penalty at
issue here are precisely what one would expect to see in provisions
meant to identify matters for the sentencing judge's consideration.
Pp. 553-554.
(c) The canon of constitutional avoidance-which provides that
when a statute is susceptible of two constructions, the Court must
adopt the one that avoids grave and doubtful constitutional
questions-plays no role here. The constitutional principle that
petitioner says a singleoffense interpretation of the statute would
violate-that any fact increasing the statutory minimum sentence
must be accorded the safeguards assigned to elements-was rejected
in
McMillan. Petitioner's suggestion that the canon be used
to avoid overruling one of this Court's own precedents is novel
and, given that
McMillan was in place when § 924(c)(1)(A)
was enacted, unsound. Congress would have had no reason to believe
that it was approaching the constitutional line by following the
instruction this Court gave in
McMillan. Pp. 554-556.
2. Reaffirming
McMillan and employing the approach
outlined in that opinion, the Court concludes that §
924(c)(1)(A)(ii) is constitutional. Basing a 2-year increase in the
defendant's minimum sentence on a judicial finding of brandishing
does not evade the Fifth and Sixth Amendments' requirements.
Congress simply dictated the precise weight
547
to be given to one traditional sentencing factor.
McMillan,
supra, at 89-90. pp. 568-569.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE SCALIA, concluded in Part III that § 924(c)(1)(A)(ii)
is constitutional under
McMillan, which remains sound
authority after
Apprendi. The Court will not overrule a
precedent absent a special justification. The justification offered
by petitioner is that
Apprendi and
McMillan cannot be
reconciled. Those decisions are consistent, however, because there
is a fundamental distinction between the factual findings at issue
in those two cases.
Apprendi said that any fact extending
the defendant's sentence beyond the maximum authorized by the
jury's verdict would have been considered an element of an
aggravated crime by the Framers of the Bill of Rights. That cannot
be said of a fact increasing the mandatory minimum (but not
extending the sentence beyond the statutory maximum), for the
jury's verdict has authorized the judge to impose the minimum with
or without the finding. This sort of fact is more like the facts
judges have traditionally considered when exercising their
discretion to choose a sentence within the range authorized by the
jury's verdict-facts that the Constitution does not require to be
alleged in the indictment, submitted to the jury, or proved beyond
a reasonable doubt. Read together,
McMillan and
Apprendi mean that those facts setting the outer limits of a
sentence, and of the judicial power to impose it, are elements of
the crime for the purposes of the constitutional analysis. Within
the range authorized by the jury's verdict, however, the political
system may channel judicial discretion-and rely upon judicial
expertise-by requiring defendants to serve minimum terms after
judges make certain factual findings. Legislatures have relied upon
McMillan's holding, and there is no reason to overturn these
statutes or cast uncertainty upon sentences imposed under them. Pp.
556-568.
JUSTICE BREYER concluded that although
Apprendi v.
New
Jersey, 530 U. S.
466, cannot easily be distinguished from this case in terms of
logic, the Sixth Amendment permits judges to apply sentencing
factors-whether those factors lead to a sentence beyond the
statutory maximum (as in
Apprendi) or the application of a
mandatory minimum (as here). This does not mean to suggest approval
of mandatory minimum sentences as a matter of policy. Mandatory
minimum statutes are fundamentally inconsistent with Congress'
simultaneous effort to create a fair, honest, and rational
sentencing system through the use of the Sentencing Guidelines.
They transfer sentencing power to prosecutors, who can determine
sentences through the charges they decide to bring, and who thereby
have reintroduced much of the sentencing disparity
548
Syllabus
that Congress created the Guidelines to eliminate. Applying
Apprendi in this case would not, however, lead Congress to
abolish, or to modify, such statutes; and it would take from the
judge the power to make a factual determination, while giving that
power not to juries, but to prosecutors. The legal consequences of
extending
Apprendi are also seriously adverse, for doing so
would diminish further Congress' otherwise broad constitutional
authority to define crimes through the specification of elements,
to shape criminal sentences through the specification of sentencing
factors, and to limit judicial discretion in applying those factors
in particular cases. Pp. 569-572.
KENNEDY, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and IV, in
which REHNQUIST, C. J., and O'CONNOR, SCALIA, and BREYER, JJ.,
joined, and an opinion with respect to Part III, in which
REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined. O'CONNOR,
J., filed a concurring opinion,
post, p. 569. BREYER, J.,
filed an opinion concurring in part and concurring in the judgment,
post, p. 569. THOMAS, J., filed a dissenting opinion, in
which STEVENS, SOUTER, and GINSBURG, JJ., joined,
post, p.
572.
William C.
Ingram, by appointment of the Court,
534 U. S. 1160, argued the cause for petitioner. With him on the
briefs were
Louis C.
Allen III, Elizabeth A. Flagg,
and
Jeffrey T. Green.
Deputy Solicitor General Dreeben argued the cause for the United
States. With him on the brief were Solicitor General Olson,
Assistant Attorney General Chertoff, Matthew D. Roberts, and Nina
Goodman.*
*Briefs of
amici curiae urging reversal were filed for
the Cato Institute et al. by
Stephen P. Halbrook; and for
Families Against Mandatory Minimums Foundation by
Peter
Goldberger and
Mary Price.
Briefs of
amici curiae urging affirmance were filed for
the State of New Jersey et al. by
David Samson, Attorney
General of New Jersey, and
Lisa Sarnoff Gochman, Deputy
Attorney General, and by the Attorneys General for their respective
jurisdictions as follows:
Bruce M. Botelho of Alaska,
Janet Napolitano of Arizona,
Ken Salazar of Colorado,
M. Jane Brady of Delaware,
Robert A. Butterworth of
Florida,
James E. Ryan of Illinois,
Carla J.
Stovall of Kansas,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland,
Thomas F.
Reilly of Massachusetts,
Michael C.
Moore of
Mississippi,
Jeremiah W (Jay) Nixon of Missouri,
Mike
McGrath of Montana,
Don Stenberg of Nebraska,
Frankie
Sue Del Papa
549
JUSTICE KENNEDY announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II, and
IV, and an opinion with respect to Part III, in which THE CHIEF
JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join.
Once more we consider the distinction the law has drawn between
the elements of a crime and factors that influence a criminal
sentence. Legislatures define crimes in terms of the facts that are
their essential elements, and constitutional guarantees attach to
these facts. In federal prosecutions, "[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury" alleging all the
elements of the crime. U. S. Const., Arndt. 5; see
Hamling
v.
United States, 418 U. S. 87, 117 (1974). "In all criminal
prosecutions," state and federal, "the accused shall enjoy the
right to ... trial ... by an impartial jury," U. S. Const., Arndt.
6; see
Duncan v.
Louisiana, 391 U. S. 145, 149
(1968), at which the government must prove each element beyond a
reasonable doubt, see
In re Winship, 397 U. S. 358, 364
(1970).
Yet not all facts affecting the defendant's punishment are
elements. After the accused is convicted, the judge may impose a
sentence within a range provided by statute, basing it on various
facts relating to the defendant and the manner in which the offense
was committed. Though these facts may have a substantial impact on
the sentence, they are not elements, and are thus not subject to
the Constitution's indictment, jury, and proof requirements. Some
statutes also direct judges to give specific weight to certain
facts when choosing the sentence. The statutes do not require
these
of Nevada,
Betty D. Montgomery of Ohio,
D. Michael
Fisher of Pennsylvania,
Mark Barnett of South Dakota,
Paul G.
Summers of Tennessee,
John Cornyn of
Texas,
Mark L. Shurtleff of Utah,
William Sorrell of
Vermont,
Elliot M. Davis of the Virgin Islands, and
Darrell V. McGraw, Jr., of West Virginia; and for the
Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
550
facts, sometimes referred to as sentencing factors, to be
alleged in the indictment, submitted to the jury, or established
beyond a reasonable doubt.
The Constitution permits legislatures to make the distinction
between elements and sentencing factors, but it imposes some
limitations as well. For if it did not, legislatures could evade
the indictment, jury, and proof requirements by labeling almost
every relevant fact a sentencing factor. The Court described one
limitation in this respect two Terms ago in
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," whether the statute calls it an element or a sentencing
factor, "must be submitted to a jury, and proved beyond a
reasonable doubt." Fourteen years before, in
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), the
Court had declined to adopt a more restrictive constitutional rule.
McMillan sustained a statute that increased the minimum
penalty for a crime, though not beyond the statutory maximum, when
the sentencing judge found, by a preponderance of the evidence,
that the defendant had possessed a firearm.
The principal question before us is whether
McMillan
stands after
Apprendi.
I
Petitioner William Joseph Harris sold illegal narcotics out of
his pawnshop with an unconcealed semiautomatic pistol at his side.
He was later arrested for violating federal drug and firearms laws,
including 18 U. S. C. § 924(c)(1)(A). That statute provides in
relevant part:
"[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime ... uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime-
551
"(i) be sentenced to a term of imprisonment of not less than 5
years;
"(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
"(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years."
The Government proceeded on the assumption that § 924(c)(1)(A)
defines a single crime and that brandishing is a sentencing factor
to be considered by the judge after the trial. For this reason the
indictment said nothing of brandishing and made no reference to
subsection (ii). Instead, it simply alleged the elements from the
statute's principal paragraph: that "during and in relation to a
drug trafficking crime," petitioner had "knowingly carr[ied] a
firearm." At a bench trial the United States District Court for the
Middle District of North Carolina found petitioner guilty as
charged.
Following his conviction, the presentence report recommended
that petitioner be given the 7-year minimum because he had
brandished the gun. Petitioner objected, citing this Court's
decision in
Jones v.
United States, 526 U. S. 227 (1999), and
arguing that, as a matter of statutory interpretation, brandishing
is an element of a separate offense, an offense for which he had
not been indicted or tried. At the sentencing hearing the District
Court overruled the objection, found by a preponderance of the
evidence that petitioner had brandished the gun, and sentenced him
to seven years in prison.
In the Court of Appeals for the Fourth Circuit petitioner again
pressed his statutory argument. He added that if brandishing is a
sentencing factor as a statutory matter, the statute is
unconstitutional in light of
Apprendi-even though, as
petitioner acknowledged, the judge's finding did not alter the
maximum penalty to which he was exposed. Rejecting these arguments,
the Court of Appeals affirmed.
243 F.3d
806 (2001). Like every other Court of Appeals to have addressed
the question, it held that the statute makes
552
brandishing a sentencing factor.
Id., at 812; accord,
United States v.
Barton, 257 F.3d
433, 443
(CA5 2001);
United States v.
Carlson, 217 F.3d
986, 989
(CA8 2000);
United States v.
Pounds, 230 F.3d
1317, 1319 (CAll 2000). The court also held that the
constitutional argument was foreclosed by
McMillan. 243 F.
3d, at 809.
We granted certiorari, 534 U. S. 1064 (2001), and now
affirm.
II
We must first answer a threshold question of statutory
construction: Did Congress make brandishing an element or a
sentencing factor in § 924(c)(1)(A)? In the Government's view the
text in question defines a single crime, and the facts in
subsections (ii) and (iii) are considerations for the sentencing
judge. Petitioner, on the other hand, contends that Congress meant
the statute to define three different crimes. Subsection (ii), he
says, creates a separate offense of which brandishing is an
element. If petitioner is correct, he was neither indicted nor
tried for that offense, and the 7-year minimum did not apply.
So we begin our analysis by asking what § 924(c)(1)(A) means.
The statute does not say in so many words whether brandishing is an
element or a sentencing factor, but the structure of the
prohibition suggests it is the latter. Federal laws usually list
all offense elements "in a single sentence" and separate the
sentencing factors "into subsections."
Castillo v.
United
States, 530 U. S.
120, 125 (2000). Here, § 924(c)(1)(A) begins with a lengthy
principal paragraph listing the elements of a complete crime-"the
basic federal offense of using or carrying a gun during and in
relation to" a violent crime or drug offense.
Id., at 124.
Toward the end of the paragraph is "the word 'shall,' which often
divides offense-defining provisions from those that specify
sentences."
Jones, 526 U. S., at 233. And following "shall"
are the separate subsections, which explain how defendants are to
"be sentenced." Subsection (i) sets a catch-
553
all minimum and "certainly adds no further element."
Ibid. Subsections (ii) and (iii), in turn, increase the
minimum penalty if certain facts are present, and those subsections
do not repeat the elements from the principal paragraph.
When a statute has this sort of structure, we can presume that
its principal paragraph defines a single crime and its subsections
identify sentencing factors. But even if a statute "has a look to
it suggesting that the numbered subsections are only sentencing
provisions,"
id., at 232, the text might provide compelling
evidence to the contrary. This was illustrated by the Court's
decision in
Jones, in which the federal carjacking statute,
which had a similar structure, was interpreted as setting out the
elements of multiple offenses.
The critical textual clues in this case, however, reinforce the
single-offense interpretation implied by the statute's structure.
Tradition and past congressional practice, for example, were
perhaps the most important guideposts in
Jones. The fact at
issue there-serious bodily injury-is an element in numerous federal
statutes, including two on which the carjacking statute was
modeled; and the
Jones Court doubted that Congress would
have made this fact a sentencing factor in one isolated instance.
Id., at 235-237; see also
Castillo, supra, at
126-127;
Almendarez-Torres v.
United States, 523 U.
S. 224, 230 (1998). In contrast, there is no similar federal
tradition of treating brandishing and discharging as offense
elements. In
Castillo v.
United States, supra, the
Court singled out brandishing as a paradigmatic sentencing
factor:
"Traditional sentencing factors often involve ... special
features of the manner in which a basic crime was carried out
(e. g., that the defendant ... brandished a gun)."
Id., at 126. Under the Sentencing Guidelines, moreover,
brandishing and discharging affect the sentences for numerous
federal crimes. See,
e. g., United States Sentencing
Commission, Guidelines Manual §§ 2A2.2(b)(2), 2B3.1(b)(2),
2B3.2(b)(3)(A), 2E2.1(b)(1), 2L1.1(b)(4) (Nov. 2001). Indeed, the
Guidelines appear to have been the only antecedents for the
statute's
554
brandishing provision. The term "brandished" does not appear in
any federal offense-defining provision save 18 U. S. C. §
924(c)(1)(A), and did not appear there until 1998, when the statute
was amended to take its current form. The numbered subsections were
added then, describing, as sentencing factors often do, "special
features of the manner in which" the statute's "basic crime" could
be carried out.
Castillo, supra, at 126. It thus seems
likely that brandishing and discharging were meant to serve the
same function under the statute as they do under the
Guidelines.
We might have had reason to question that inference if
brandishing or discharging altered the defendant's punishment in a
manner not usually associated with sentencing factors.
Jones
is again instructive. There the Court accorded great significance
to the "steeply higher penalties" authorized by the carjacking
statute's three subsections, which enhanced the defendant's maximum
sentence from 15 years, to 25 years, to life-enhancements the Court
doubted Congress would have made contingent upon judicial
factfinding. 526 U. S., at 233; see also
Castillo, supra, at
131;
AlmendarezTorres, supra, at 235-236. The provisions
before us now, however, have an effect on the defendant's sentence
that is more consistent with traditional understandings about how
sentencing factors operate; the required findings constrain, rather
than extend, the sentencing judge's discretion. Section
924(c)(1)(A) does not authorize the judge to impose "steeply higher
penalties"-or higher penalties at all-once the facts in question
are found. Since the subsections alter only the minimum, the judge
may impose a sentence well in excess of seven years, whether or not
the defendant brandished the firearm. The incremental changes in
the minimum-from 5 years, to 7, to lO-are precisely what one would
expect to see in provisions meant to identify matters for the
sentencing judge's consideration.
Nothing about the text or history of the statute rebuts the
presumption drawn from its structure. Against the single-
555
offense interpretation to which these considerations point,
however, petitioner invokes the canon of constitutional avoidance.
Under that doctrine, when "a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are
avoided, our duty is to adopt the latter."
United States ex rel.
Attorney General v.
Delaware &
Hudson Co.,
213 U. S. 366,
408 (1909). It is at least an open question, petitioner contends,
whether the Fifth and Sixth Amendments require every fact
increasing a federal defendant's minimum sentence to be alleged in
the indictment, submitted to the jury, and proved beyond a
reasonable doubt. To avoid resolving that question (and possibly
invalidating the statute), petitioner urges, we should read §
924(c)(1)(A) as making brandishing an element of an aggravated
federal crime.
The avoidance canon played a role in
Jones, for the
subsections of the carjacking statute enhanced the maximum
sentence, and a single-offense interpretation would have implicated
constitutional questions later addressed-and resolved in the
defendant's favor-by
Apprendi. See
Jones, supra, at
243, n. 6 ("[A]ny fact (other than prior conviction) that increases
the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt"). Yet
the canon has no role to play here. It applies only when there are
serious concerns about the statute's constitutionality,
Reno
v.
Flores, 507
U. S. 292, 314, n. 9 (1993), and petitioner's proposed
rule-that the Constitution requires any fact increasing the
statutory minimum sentence to be accorded the safeguards assigned
to elements-was rejected 16 years ago in
McMillan.
Petitioner acknowledges as much but argues that recent developments
cast doubt on
McMillan's viability. To avoid deciding
whether
McMillan must be overruled, he says, we should
construe the problem out of the statute.
556
Opinion of KENNEDY, J.
Petitioner's suggestion that we use the canon to avoid
overruling one of our own precedents is novel and, given that
McMillan was in place when § 924(c)(1)(A) was enacted,
unsound. The avoidance canon rests upon our "respect for Congress,
which we assume legislates in the light of constitutional
limitations."
Rust v.
Sullivan, 500 U. S. 173, 191
(1991). The statute at issue in this case was passed when
McMillan provided the controlling instruction, and Congress
would have had no reason to believe that it was approaching the
constitutional line by following that instruction. We would not
further the canon's goal of eliminating friction with our
coordinate branch, moreover, if we alleviated our doubt about a
constitutional premise we had supplied by adopting a strained
reading of a statute that Congress had enacted in reliance on the
premise. And if we stretched the text to avoid the question of
McMillan's continuing vitality, the canon would embrace a
dynamic view of statutory interpretation, under which the text
might mean one thing when enacted yet another if the prevailing
view of the Constitution later changed. We decline to adopt that
approach.
As the avoidance canon poses no obstacle and the interpretive
circumstances point in a common direction, we conclude that, as a
matter of statutory interpretation, § 924(c)(1)(A) defines a single
offense. The statute regards brandishing and discharging as
sentencing factors to be found by the judge, not offense elements
to be found by the jury.
III
Confident that the statute does just what
McMillan said
it could, we consider petitioner's argument that § 924(c)(1)(A)(ii)
is unconstitutional because
McMillan is no longer sound
authority.
Stare decisis is not an "inexorable command,"
Burnet v.
Coronado Oil &
Gas Co., 285 U. S. 393, 405 (1932)
(Brandeis, J., dissenting), but the doctrine is "of fundamental
importance to the rule of law,"
Welch v.
Texas
557
Dept. of Highways and Public Transp., 483 U. S. 468, 494
(1987). Even in constitutional cases, in which
stare decisis
concerns are less pronounced, we will not overrule a precedent
absent a "special justification."
Arizona v.
Rumsey,
467 U. S. 203,
212 (1984).
The special justification petitioner offers is our decision in
Apprendi, which, he says, cannot be reconciled with
McMillan. Cf.
Ring v.
Arizona, post, at 609
(overruling
Walton v.
Arizona, 497 U. S. 639 (1990),
because
"Walton and
Apprendi are irreconcilable"). We
do not find the argument convincing. As we shall explain,
McMillan and
Apprendi are consistent because there is
a fundamental distinction between the factual findings that were at
issue in those two cases.
Apprendi said that any fact
extending the defendant's sentence beyond the maximum authorized by
the jury's verdict would have been considered an element of an
aggravated crime-and thus the domain of the jury-by those who
framed the Bill of Rights. The same cannot be said of a fact
increasing the mandatory minimum (but not extending the sentence
beyond the statutory maximum), for the jury's verdict has
authorized the judge to impose the minimum with or without the
finding. As
McMillan recognized, a statute may reserve this
type of factual finding for the judge without violating the
Constitution.
Though defining criminal conduct is a task generally "left to
the legislative branch,"
Patterson v.
New York,
432 U. S. 197,
210 (1977), Congress may not manipulate the definition of a crime
in a way that relieves the Government of its constitutional
obligations to charge each element in the indictment, submit each
element to the jury, and prove each element beyond a reasonable
doubt,
Jones, 526 U. S., at 240-241;
Mullaney v.
Wilbur, 421 U.
S. 684, 699 (1975).
McMillan and
Apprendi asked
whether certain types of facts, though labeled sentencing factors
by the legislature, were nevertheless "traditional elements" to
which these constitutional safe-
558
Opinion of KENNEDY, J.
guards were intended to apply.
Patterson v.
New York,
supra, at 211, n. 12.
McMillan's answer stemmed from certain historical and
doctrinal understandings about the role of the judge at sentencing.
The mid-19th century produced a general shift in this country from
criminal statutes "providing fixed-term sentences to those
providing judges discretion within a permissible range."
Apprendi, 530 U. S., at 481. Under these statutes, judges
exercise their sentencing discretion through "an inquiry broad in
scope, largely unlimited either as to the kind of information
[they] may consider, or the source from which it may come."
United States v.
Tucker, 404 U. S. 443, 446
(1972). The Court has recognized that this process is
constitutional-and that the facts taken into consideration need not
be alleged in the indictment, submitted to the jury, or proved
beyond a reasonable doubt. See,
e. g., United States v.
Watts, 519 U.
S. 148, 156 (1997)
(per curiam); Nichols v.
United
States, 511 U. S.
738, 747 (1994);
Williams v.
New York, 337 U. S. 241, 246
(1949). As the Court reiterated in
Jones: "It is not, of
course, that anyone today would claim that every fact with a
bearing on sentencing must be found by a jury; we have resolved
that general issue and have no intention of questioning its
resolution." 526 U. S., at 248. Judicial factfinding in the course
of selecting a sentence within the authorized range does not
implicate the indictment, jury-trial, and reasonable-doubt
components of the Fifth and Sixth Amendments.
That proposition, coupled with another shift in prevailing
sentencing practices, explains
McMillan. In the latter part
of the 20th century, many legislatures, dissatisfied with
sentencing disparities among like offenders, implemented measures
regulating judicial discretion. These systems maintained the
statutory ranges and the judge's factfinding role but assigned a
uniform weight to factors judges often relied upon when choosing a
sentence. See,
e. g., Payne v.
Tennessee, 501 U. S. 808, 820
(1991). One example of reform, the
559
kind addressed in
McMillan, was mandatory mInImUm
sentencing. The Pennsylvania Mandatory Minimum Sentencing Act, 42
Pa. Cons. Stat. § 9712 (1982), imposed a minimum prison term of
five years when the sentencing judge found, by a preponderance of
the evidence, that the defendant had possessed a firearm while
committing the crime of conviction.
In sustaining the statute the
McMillan Court placed
considerable reliance on the similarity between the sentencing
factor at issue and the facts judges contemplate when exercising
their discretion within the statutory range. Given that the latter
are not elements of the crime, the Court explained, neither was the
former:
"Section 9712 neither alters the maximum penalty for the crime
committed nor creates a separate offense calling for a separate
penalty; it operates solely to limit the sentencing court's
discretion in selecting a penalty within the range already
available to it without the special finding of visible possession
of a firearm. Section 9712 'ups the ante' for the defendant only by
raising to five years the minimum sentence which may be imposed
within the statutory plan .... Petitioners' claim that visible
possession under the Pennsylvania statute is 'really' an element of
the offenses for which they are being punished ... would have at
least more superficial appeal if a finding of visible possession
exposed them to greater or additional punishment, ... but it does
not." 477 U. S., at 87-88 (footnote omitted).
In response to the argument that the Act evaded the
Constitution's procedural guarantees, the Court noted that the
statute "simply took one factor that has always been considered by
sentencing courts to bear on punishment ... and dictated the
precise weight to be given that factor."
Id., at 89-90.
560
Opinion of KENNEDY, J.
That reasoning still controls. If the facts judges consider when
exercising their discretion within the statutory range are not
elements, they do not become as much merely because legislatures
require the judge to impose a minimum sentence when those facts are
found-a sentence the judge could have imposed absent the finding.
It does not matter, for the purposes of the constitutional
analysis, that in statutes like the Pennsylvania Act the "State
provides" that a fact "shall give rise both to a special stigma and
to a special punishment."
Id., at 103 (STEVENS, J.,
dissenting). Judges choosing a sentence within the range do the
same, and "[j]udges, it is sometimes necessary to remind ourselves,
are part of the State."
Apprendi, supra, at 498 (SCALIA, J.,
concurring). These facts, though stigmatizing and punitive, have
been the traditional domain of judges; they have not been alleged
in the indictment or proved beyond a reasonable doubt. There is no
reason to believe that those who framed the Fifth and Sixth
Amendments would have thought of them as the elements of the
crime.
This conclusion might be questioned if there were extensive
historical evidence showing that facts increasing the defendant's
minimum sentence (but not affecting the maximum) have, as a matter
of course, been treated as elements. The evidence on this score,
however, is lacking. Statutes like the Pennsylvania Act, which
alter the minimum sentence without changing the maximum, were for
the most part the product of the 20th century, when legislatures
first asserted control over the sentencing judge's discretion.
Courts at the founding (whose views might be relevant, given the
contemporaneous adoption of the Bill of Rights, see
Apprendi, 530 U. S., at 478-484) and in the mid-19th century
(whose views might be relevant, given that sentencing ranges first
arose then, see
id., at 501-518 (THOMAS, J., concurring))
were not as a general matter required to decide whether a fact
giving rise to a mandatory minimum sentence within the available
range was to be alleged in the indictment and
561
proved to the jury. See King & Klein, Essential Elements, 54
Vand. L. Rev. 1467, 1474-1477 (2001). Indeed, though there is no
clear record of how history treated these facts, it is clear that
they did not fall within the principle by which history determined
what facts were elements. That principle defined elements as
"fact[s] ... legally essential to the punishment to be inflicted."
United States v.
Reese, 92 U. S. 214, 232 (1876)
(Clifford, J., dissenting) (citing 1 J. Bishop, Law of Criminal
Procedure § 81, p. 51 (2d ed. 1872)). This formulation includes
facts that, as
McMillan put it, "alte[r] the maximum
penalty," 477 U. S., at 87, but it does not include facts
triggering a mandatory minimum. The minimum may be imposed with or
without the factual finding; the finding is by definition not
"essential" to the defendant's punishment.
McMillan was on firm historical ground, then, when it
held that a legislature may specify the condition for a mandatory
minimum without making the condition an element of the crime. The
fact of visible firearm possession was more like the facts
considered by judges when selecting a sentence within the statutory
range-facts that, as the authorities from the 19th century confirm,
have never been charged in the indictment, submitted to the jury,
or proved beyond a reasonable doubt:
"[W]ithin the limits of any discretion as to the punishment
which the law may have allowed, the judge, when he pronounces
sentence, may suffer his discretion to be influenced by matter
shown in aggravation or mitigation, not covered by the allegations
of the indictment. Where the law permits the heaviest punishment,
on a scale laid down, to be inflicted, and has merely committed to
the judge the authority to interpose its mercy and inflict a
punishment of a lighter grade, no rights of the accused are
violated though in the indictment there is no mention of mitigating
circumstances. The aggravating circumstances spoken of cannot swell
the penalty
562
Opinion of KENNEDY, J.
above what the law has provided for the acts charged against the
prisoner, and they are interposed merely to check the judicial
discretion in the exercise of the permitted mercy. This is an
entirely different thing from punishing one for what is not alleged
against him." Bishop, Criminal Procedure § 85, at 54.
Since sentencing ranges came into use, defendants have not been
able to predict from the face of the indictment precisely what
their sentence will be; the charged facts have simply made them
aware of the "heaviest punishment" they face if convicted.
Ibid. Judges, in turn, have always considered uncharged
"aggravating circumstances" that, while increasing the defendant's
punishment, have not "swell[ed] the penalty above what the law has
provided for the acts charged."
Ibid. Because facts
supporting a mandatory minimum fit squarely within that
description, the legislature's choice to entrust them to the judge
does not implicate the "competition ... between judge and jury over
... their respective roles,"
Jones, 526 U. S., at 245, that
is the central concern of the Fifth and Sixth Amendments.
At issue in
Apprendi, by contrast, was a sentencing
factor that did "swell the penalty above what the law has
provided," Bishop,
supra, § 85, at 54, and thus functioned
more like a "traditional elemen[t]."
Patterson v.
New
York, 432 U. S., at 211, n. 12. The defendant had been
convicted of illegal possession of a firearm, an offense for which
New Jersey law prescribed a maximum of 10 years in prison. See N.
J. Stat. Ann. §§ 2C:39-4(a), 2C:43-6(a)(2) (1995). He was sentenced
to 12 years, however, because a separate statute permitted an
enhancement when the judge found, by a preponderance of the
evidence, that the defendant "acted with a purpose to intimidate an
individual or group of individuals because of race." § 2C:44-3(e)
(Supp. 2001-2002).
The Court held that the enhancement was unconstitutional. "[O]ur
cases in this area, and ... the history upon which they rely," the
Court observed, confirmed the constitu-
563
tional principle first identified in
Jones: "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." 530 U.
S., at 490. Those facts,
Apprendi held, were what the
Framers had in mind when they spoke of "crimes" and "criminal
prosecutions" in the Fifth and Sixth Amendments:
A crime was not alleged, and a criminal prosecution not
complete, unless the indictment and the jury verdict included all
the facts to which the legislature had attached the maximum
punishment. Any "fact that ... exposes the criminal defendant to a
penalty
exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone," the
Court concluded,
id., at 483, would have been, under the
prevailing historical practice, an element of an aggravated
offense. See
id., at 479-481; see also
id., at
501-518 (THOMAS, J., concurring).
Apprendi's conclusions do not undermine
McMillan's.
There was no comparable historical practice of submitting facts
increasing the mandatory minimum to the jury, so the
Apprendi rule did not extend to those facts. Indeed, the
Court made clear that its holding did not affect
McMillan at
all:
"We do not overrule McMillan. We limit its holding to
cases that do not involve the imposition of a sentence more severe
than the statutory maximum for the offense established by the
jury's verdict-a limitation identified in the McMillan
opinion itself." 530 U. S., at 487, n. 13.
The sentencing factor in
McMillan did not increase "the
penalty for a crime beyond the prescribed statutory maximum," 530
U. S., at 490; nor did it, as the concurring opinions in
Jones put it, "alter the congressionally prescribed range of
penalties to which a criminal defendant is exposed," 526 U. S., at
253 (SCALIA, J., concurring). As the
Apprendi Court
observed, the
McMillan finding merely required the
564
Opinion of KENNEDY, J.
judge to impose "a specific sentence
within the range
authorized by the jury's finding that the defendant [was] guilty."
530 U. S., at 494, n. 19; see also
Jones, supra, at 242
("[T]he
Winship issue [in
McMillan] rose from a
provision that a judge's finding (by a preponderance) of visible
possession of a firearm would require a mandatory minimum sentence
for certain felonies, but a minimum that fell within the sentencing
ranges otherwise prescribed").
As its holding and the history on which it was based would
suggest, the
Apprendi Court's understanding of the
Constitution is consistent with the holding in
McMillan.
Facts extending the sentence beyond the statutory maximum had
traditionally been charged in the indictment and submitted to the
jury,
Apprendi said, because the function of the indictment
and jury had been to authorize the State to impose punishment:
have exercised sentencing discretion within a legally prescribed
range ... point to a single, consistent conclusion: The judge's
role in sentencing is constrained at its outer limits by the facts
alleged in the indictment and found by the jury. Put simply, facts
that expose a defendant to a punishment greater than that otherwise
legally prescribed were by definition 'elements' of a separate
legal offense." 530 U. S., at 483, n. 10.
The grand and petit juries thus form a " 'strong and two-fold
barrier ... between the liberties of the people and the prerogative
of the [government].'"
Duncan v.
Louisiana, 391 U.
S., at 151 (quoting W. Blackstone, Commentaries on the Laws of
England 349 (T. Cooley ed. 1899)). Absent authorization from the
trial jury-in the form of a finding, by proof beyond a reasonable
doubt, of the facts warranting the extended sentence under the New
Jersey statute-the State had no power to sentence the defendant to
more than
565
10 years, the maximum "authorized by the jury's guilty verdict."
Apprendi, 530 U. S., at 494. "[T]hose facts that determine
the maximum sentence the law allows," then, are necessarily
elements of the crime.
Id., at 499 (SCALIA, J.,
concurring).
Yet once the jury finds all those facts,
Apprendi says
that the defendant has been convicted of the crime; the Fifth and
Sixth Amendments have been observed; and the Government has been
authorized to impose any sentence below the maximum. That is why,
as
Apprendi noted, "nothing in this history suggests that it
is impermissible for judges to exercise discretion-taking into
consideration various factors relating both to offense and
offender-in imposing a judgment
within the range." Id., at
481. That is also why, as
McMillan noted, nothing in this
history suggests that it is impermissible for judges to find facts
that give rise to a mandatory minimum sentence below "the maximum
penalty for the crime committed." 477 U. S., at 87-88. In both
instances the judicial factfinding does not "expose a defendant to
a punishment greater than that otherwise legally prescribed."
Apprendi, supra, at 483, n. 10. Whether chosen by the judge
or the legislature, the facts guiding judicial discretion below the
statutory maximum need not be alleged in the indictment, submitted
to the jury, or proved beyond a reasonable doubt. When a judge
sentences the defendant to a mandatory minimum, no less than when
the judge chooses a sentence within the range, the grand and petit
juries already have found all the facts necessary to authorize the
Government to impose the sentence. The judge may impose the
minimum, the maximum, or any other sentence within the range
without seeking further authorization from those juries-and without
contradicting
Apprendi.
Petitioner argues, however, that the concerns underlying
Apprendi apply with equal or more force to facts increasing
the defendant's minimum sentence. Those factual findings, he
contends, often have a greater impact on the defendant
566
Opinion of KENNEDY, J.
than the findings at issue in
Apprendi. This is so
because when a fact increasing the statutory maximum is found, the
judge may still impose a sentence far below that maximum; but when
a fact increasing the minimum is found, the judge has no choice but
to impose that minimum, even if he or she otherwise would have
chosen a lower sentence. Cf.
Almendarez- Torres, 523 U. S.,
at 244-245. Why, petitioner asks, would fairness not also require
the latter sort of fact to be alleged in the indictment and found
by the jury under a reasonable-doubt standard? The answer is that
because it is beyond dispute that the judge's choice of sentences
within the authorized range may be influenced by facts not
considered by the jury, a factual finding's practical effect cannot
by itself control the constitutional analysis. The Fifth and Sixth
Amendments ensure that the defendant "will never get
more
punishment than he bargained for when he did the crime," but they
do not promise that he will receive "anything less" than that.
Apprendi, supra, at 498 (SCALIA, J., concurring). If the
grand jury has alleged, and the trial jury has found, all the facts
necessary to impose the maximum, the barriers between government
and defendant fall. The judge may select any sentence within the
range, based on facts not alleged in the indictment or proved to
the juryeven if those facts are specified by the legislature, and
even if they persuade the judge to choose a much higher sentence
than he or she otherwise would have imposed. That a fact affects
the defendant's sentence, even dramatically so, does not by itself
make it an element.
In light of the foregoing, it is not surprising that the
decisions for the Court in both
Apprendi and
Jones
insisted that they were consistent with
McMillan-and that a
distinction could be drawn between facts increasing the defendant's
minimum sentence and facts extending the sentence beyond the
statutory maximum. See,
e. g., Apprendi, supra, at 494, n.
19 ("The term [sentencing factor] appropriately describes a
circumstance, which may be either aggravating or mitigat-
567
ing in character, that supports a specific sentence
within
the range authorized by the jury's finding that the defendant
is guilty of a particular offense");
Jones, 526 U. S., at
242
("McMillan, then, recognizes a question under both the
Due Process Clause of the Fourteenth Amendment and the jury
guarantee of the Sixth: ... [M]ay judicial factfinding by a
preponderance support the application of a provision that increases
the potential severity of the penalty for a variant of a given
crime?"); see also
Almendarez-Torres, supra, at 256 (SCALIA,
J., dissenting) ("[N]o one can read
McMillan ... without
perceiving that the determinative element in our validation of the
Pennsylvania statute was the fact that it merely limited the
sentencing judge's discretion within the range of penalty already
available,
rather than substantially increasing the
available sentence"). That distinction may continue to stand. The
factual finding in
Apprendi extended the power of the judge,
allowing him or her to impose a punishment exceeding what was
authorized by the jury. The finding in
McMillan restrained
the judge's power, limiting his or her choices within the
authorized range. It is quite consistent to maintain that the
former type of fact must be submitted to the jury while the latter
need not be.
Read together,
McMillan and
Apprendi mean that
those facts setting the outer limits of a sentence, and of the
judicial power to impose it, are the elements of the crime for the
purposes of the constitutional analysis. Within the range
authorized by the jury's verdict, however, the political system may
channel judicial discretion-and rely upon judicial expertise-by
requiring defendants to serve minimum terms after judges make
certain factual findings. It is critical not to abandon that
understanding at this late date. Legislatures and their
constituents have relied upon
McMillan to exercise control
over sentencing through dozens of statutes like the one the Court
approved in that case. Congress and the States have conditioned
mandatory minimum sentences upon judicial findings that, as here, a
firearm was possessed,
568
brandished, or discharged, Ala. Code § 13A-5-6(a)(4) (1994);
Kan. Stat. Ann. § 21-4618 (1995); Minn. Stat. Ann. § 609.11 (Supp.
2002); N. J. Stat. Ann. §§ 2C:43-6(c), 6(d) (1998); or among other
examples, that the victim was over 60 years of age, 42 Pa. Cons.
Stat. § 9717(a) (1998); that the defendant possessed a certain
quantity of drugs, Ill. Compo Stat., ch. 730, § 5/5-5-3(c)(2)(D)
(2000); that the victim was related to the defendant, Alaska Stat.
§ 12.55.125(b) (2000); and that the defendant was a repeat
offender, Md. Ann. Code, Art. 27, § 286 (Supp. 2000). We see no
reason to overturn those statutes or cast uncertainty upon the
sentences imposed under them.
IV
Reaffirming
McMillan and employing the approach outlined
in that case, we conclude that the federal provision at issue, 18
U. S. C. § 924(c)(1)(A)(ii), is constitutional. Basing a 2-year
increase in the defendant's minimum sentence on a judicial finding
of brandishing does not evade the requirements of the Fifth and
Sixth Amendments. Congress "simply took one factor that has always
been considered by sentencing courts to bear on punishment ... and
dictated the precise weight to be given that factor."
McMillan, 477 U. S., at 89-90. That factor need not be
alleged in the indictment, submitted to the jury, or proved beyond
a reasonable doubt.
The Court is well aware that many question the wisdom of
mandatory minimum sentencing. Mandatory minimums, it is often said,
fail to account for the unique circumstances of offenders who
warrant a lesser penalty. See,
e. g., Brief for
Families Against Mandatory Minimums Foundation as
Amicus
Curiae 25, n. 16; cf.
Almendarez-Torres, supra, at 245
(citing United States Sentencing Commission, Mandatory Minimum
Penalties in the Federal Criminal Justice System 26-34 (Aug.
1991)). These criticisms may be sound, but they would persist
whether the judge or the jury found the facts giving rise to the
minimum. We hold only that the
569
Constitution permits the judge to do so, and we leave the other
questions to Congress, the States, and the democratic
processes.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
Petitioner bases his statutory argument that brandishing must be
interpreted as an offense element on
Jones v.
United
States, 526 U. S.
227 (1999). He bases his constitutional argument that
regardless of how the statute is interpreted, brandishing must be
charged in the indictment and found by the jury beyond a reasonable
doubt on
Apprendi v.
New Jersey, 530 U. S. 466 (2000). As
I dissented in
Jones and
Apprendi and still believe
both were wrongly decided, I find it easy to reject petitioner's
arguments. Even assuming the validity of
Jones and
Apprendi, however, I agree that petitioner's arguments that
brandishing must be charged in the indictment and found by the jury
beyond a reasonable doubt are unavailing. I therefore join JUSTICE
KENNEDY'S opinion in its entirety.
JUSTICE BREYER, concurring in part and concurring in the
judgment.
I cannot easily distinguish
Apprendi v.
New Jersey,
530 U. S. 466 (2000), from this case in terms of logic. For
that reason, I cannot agree with the plurality's opinion insofar as
it finds such a distinction. At the same time, I continue to
believe that the Sixth Amendment permits judges to apply sentencing
factors-whether those factors lead to a sentence beyond the
statutory maximum (as in
Apprendi) or the application of a
mandatory minimum (as here). And because I believe that extending
Apprendi to mandatory minimums would have adverse practical,
as well as legal, consequences, I cannot yet accept its rule. I
therefore join the Court's
570
Opinion of BREYER, J.
judgment, and I join its opinion to the extent that it holds
that
Apprendi does not apply to mandatory minimums.
In saying this, I do not mean to suggest my approval of
mandatory minimum sentences as a matter of policy. During the past
two decades, as mandatory minimum sentencing statutes have
proliferated in number and importance, judges, legislators,
lawyers, and commentators have criticized those statutes, arguing
that they negatively affect the fair administration of the criminal
law, a matter of concern to judges and to legislators alike. See,
e. g., Remarks of Chief Justice William H. Rehnquist,
N at. Symposium on Drugs and Violence in America 9-11 (June 18,
1993); Kennedy, Hearings before a Subcommittee of the House
Committee on Appropriations, 103d Cong., 2d Sess., 29 (Mar. 9,
1994) (mandatory minimums are "imprudent, unwise and often an
unjust mechanism for sentencing"); Breyer, Federal Sentencing
Guidelines Revisited, 14 Crim. Justice 28 (Spring 1999); Hatch, The
Role of Congress in Sentencing: The United States Sentencing
Commission, Mandatory Minimum Sentences, and the Search for a
Certain and Effective Sentencing System, 28 Wake Forest L. Rev.
185, 192-196 (1993); Schulhofer, Rethinking Mandatory Minimums, 28
Wake Forest L. Rev. 199 (1993); Raeder, Rethinking Sentencing and
Correctional Policy for Nonviolent Drug Offenders, 14 Crim. Justice
1, 53 (Summer 1999) (noting that the American Bar Association has
opposed mandatory minimum sentences since 1974).
Mandatory minimum statutes are fundamentally inconsistent with
Congress' simultaneous effort to create a fair, honest, and
rational sentencing system through the use of Sentencing
Guidelines. Unlike Guideline sentences, statutory mandatory
minimums generally deny the judge the legal power to depart
downward, no matter how unusual the special circumstances that call
for leniency. See
Melendez v.
United States, 518 U. S. 120, 132-133
(1996) (BREYER, J., concurring in part and dissenting in part); cf.
Koon v.
United States, 518 U. S. 81, 95-96
(1996). They rarely reflect an ef-
571
fort to achieve sentencing proportionality-a key element of
sentencing fairness that demands that the law punish a drug
"kingpin" and a "mule" differently. They transfer sentencing power
to prosecutors, who can determine sentences through the charges
they decide to bring, and who thereby have reintroduced much of the
sentencing disparity that Congress created Guidelines to eliminate.
U. S. Sentencing Comm'n, Special Report to Congress: Mandatory
Minimum Penalties in the Federal Criminal Justice System i-iv,
31-33 (1991) (Sentencing Report); see also Schulhofer,
supra, at 214-220. They rarely are based upon empirical
study. See Rehnquist,
supra, at 9-10; Hatch,
supra,
at 198. And there is evidence that they encourage subterfuge,
leading to more frequent downward departures (on a random basis),
thereby making them a comparatively ineffective means of
guaranteeing tough sentences. See Sentencing Report 53.
Applying
Apprendi in this case would not, however, lead
Congress to abolish, or to modify, mandatory minimum sentencing
statutes. Rather, it would simply require the prosecutor to charge,
and the jury to find beyond a reasonable doubt, the existence of
the "factor," say, the amount of unlawful drugs, that triggers the
mandatory minimum. In many cases, a defendant, claiming innocence
and arguing, say, mistaken identity, will find it impossible
simultaneously to argue to the jury that the prosecutor has
overstated the drug amount. How, the jury might ask, could this
"innocent" defendant know anything about that matter? The upshot is
that in many such cases defendant and prosecutor will enter into a
stipulation before trial as to drug amounts to be used at
sentencing (if the jury finds the defendant guilty). To that
extent, application of
Apprendi would take from the judge
the power to make a factual determination, while giving that power
not to juries, but to prosecutors. And such consequences, when
viewed through the prism of an open, fair sentencing system, are
seriously adverse.
572
The legal consequences of extending
Apprendi to the
mandatory minimum sentencing context are also seriously adverse.
Doing so would diminish further Congress' otherwise broad
constitutional authority to define crimes through the specification
of elements, to shape criminal sentences through the specification
of sentencing factors, and to limit judicial discretion in applying
those factors in particular cases. I have discussed these matters
fully in my
Apprendi dissent. See 530 U. S., at 555. For the
reasons set forth there, and in other opinions, see
Jones v.
United States, 526 U. S. 227, 254 (1999) (KENNEDY, J.,
dissenting);
AlmendarezTorres v.
United States,
523 U. S. 224
(1998), I would not apply
Apprendi in this case.
I consequently join Parts I, II, and IV of the Court's opinion
and concur in its judgment.
JUSTICE THOMAS, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
The range of punishment to which petitioner William J.
Harris was exposed turned on the fact that he brandished a
firearm, a fact that was neither charged in his indictment nor
proved at trial beyond a reasonable doubt. The United States Court
of Appeals for the Fourth Circuit nonetheless held, in reliance on
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), that
the fact that Harris brandished a firearm was a mere sentencing
factor to which no constitutional protections attach.
243 F.3d
806, 808-812 (2001).
McMillan, however, conflicts with the Court's later
decision in
Apprendi v.
New Jersey, 530 U. S. 466 (2000), as
the dissenting opinion in
Apprendi recognized. See
id., at 533 (O'CONNOR, J., dissenting). The Court's holding
today therefore rests on either a misunderstanding or a rejection
of the very principles that animated
Apprendi just two years
ago. Given that considerations of
stare decisis are at their
nadir in cases involving procedural rules implicating fundamental
constitutional protections afforded criminal defend-
573
ants, I would reaffirm
Apprendi, overrule
McMillan, and reverse the Court of Appeals.
I
Harris was indicted for distributing marijuana in violation of
21 U. s. C. § 841 and for carrying a firearm "in relation to" a
drug trafficking crime in violation of 18 U. s. C. § 924(c)(1)(A).
Harris pleaded guilty to distributing marijuana but disputed that
he had carried a firearm "in relation to" a drug trafficking crime.
The District Court disagreed, 1 and he was convicted by the judge,
having waived his right to trial by jury. Although the mandatory
minimum prison sentence under § 924(c)(1)(A)(i) is five years in
prison, the presentence report relied on § 924(c)(1)(A)(ii), which
increases the mandatory minimum prison sentence to seven years when
the firearm is brandished. 2 At sentencing, the District Court
acknowledged that it was a "close question" whether Harris
"brandished" a firearm, and noted that "[t]he only thing that
happened here is [that] he had [a gun] during the drug
transaction." App. 231-232, 244-247. The District Court nonetheless
found by a preponderance of the evidence that Harris had brandished
a firearm and as a result sentenced him to the minimum mandatory
sentence of seven years' imprisonment for the violation of §
924(c)(1)(A).
Relying on
McMillan, the Court of Appeals affirmed the
sentence and held as a matter of statutory interpretation that
brandishing is a sentencing factor, not an element of the §
924(c)(1)(A) offense. Accordingly, the Court of Appeals
1 Harris owned a pawn shop and routinely wore a gun at work; the
District Court accepted that it was Harris' ordinary practice to
wear a gun whether or not he was selling small amounts of marijuana
to his friends. The District Court, however, determined that the
gun was carried "in relation to" a drug trafficking offense within
the meaning of § 924(c) because it was "unable to draw the
distinction that if it is [carried] for a legitimate purpose, it
cannot be for an illegitimate purpose." App. 163.
2 The presentence report recommended that Harris be given a term
of imprisonment of zero to six
months for the distribution
charge.
574
concluded that the allegation of brandishing a firearm did not
need to be charged in the indictment or proved beyond a reasonable
doubt in order for the 7-year mandatory minimum to be
triggered.
II
The Court construes § 924(c)(1)(A) to "defin[e] a single
offense,"
ante, at 556, rather than the multiple offenses
the Court found in a similarly structured statute in
Jones
v.
United States, 526 U. S. 227 (1999).3 In
reliance on
McMillan, it then discounts the increasing
mandatory minimum sentences set forth in the statutory provision as
constitutionally irrelevant. In the plurality's view, any
punishment less than the statutory maximum of life imprisonment for
any violation of § 924(c)(1)(A) avoids the single principle the
Court now gleans from
Apprendi: "'Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum,' whether the statute calls
it an element or a sentencing factor, 'must be submitted to a jury,
and proved beyond a reasonable doubt.'"
Ante, at 550
(quoting
Apprendi, supra, at 490). According to the
plurality, the historical practices underlying the Court's decision
in
Apprendi with respect to penalties that exceed the
statutory maximum do not support extension of
Apprendi's
rule to facts that increase a defendant's mandatory minimum
sentence. Such fine distinctions with regard to vital
constitutional liberties cannot withstand close scrutiny.
A
The Federal Constitution provides those "accused" in federal
courts with specific rights, such as the right "to be informed of
the nature and cause of the accusation," the right to be "held to
answer for a capital, or otherwise infamous crime" only on an
indictment or presentment of a grand jury, and the right to be
tried by "an impartial jury of the State
3 See 18 U. S. C. § 2119.
575
and district wherein the crime shall have been committed."
Amdts. 5 and 6. Also, no Member of this Court disputes that due
process requires that every fact necessary to constitute a crime
must be found beyond a reasonable doubt by a jury if that right is
not waived. See
In re Winship, 397 U. S. 358, 364 (1970). As
with
Apprendi, this case thus turns on the seemingly simple
question of what constitutes a "crime."
This question cannot be answered by reference to statutory
construction alone solely because the sentence does not exceed the
statutory maximum. As I discussed at great length in
Apprendi, the original understanding of what facts are
elements of a crime was expansive:
"[I]f the legislature defines some core crime and then provides
for increasing the punishment of that crime upon a finding of some
aggravating fact-of whatever sort, including the fact of a prior
conviction-the core crime and the aggravating fact together
constitute an aggravated crime, just as much as grand larceny is an
aggravated form of petit larceny. The aggravating fact is an
element of the aggravated crime. Similarly, if the legislature,
rather than creating grades of crimes, has provided for setting the
punishment of a crime based on some fact ... that fact is also an
element. No multifactor parsing of statutes, of the sort that we
have attempted since McMillan, is necessary. One need only
look to the kind, degree, or range of punishment to which the
prosecution is by law entitled for a given set of facts. Each fact
for that entitlement is an element." 530 U. S., at 501 (concurring
opinion).
The fact that a defendant brandished a firearm indisputably
alters the prescribed range of penalties to which he is exposed
under 18 U. S. C. § 924(c)(1)(A). Without a finding that a
defendant brandished or discharged a firearm, the penalty range for
a conviction under § 924(c)(1)(A)(i) is five
576
years to life in prison. But with a finding that a defendant
brandished a firearm, the penalty range becomes harsher, seven
years to life imprisonment. § 924(c)(1)(A)(ii). And if the court
finds that a defendant discharged a firearm, the range becomes even
more severe, 10 years to life. § 924(c)(1)(A)(iii). Thus, it is
ultimately beside the point whether as a matter of statutory
interpretation brandishing is a sentencing factor, because as a
constitutional matter brandishing must be deemed an element of an
aggravated offense. See
Apprendi, supra, at 483, n. 10
("[F]acts that expose a defendant to a punishment greater than that
otherwise legally prescribed were by definition 'elements' of a
separate legal offense").
I agree with the Court that a legislature is free to decree,
within constitutional limits, which facts are elements that
constitute a crime. See
ante, at 550. But when the
legislature provides that a particular fact shall give rise" 'both
to a special stigma and to a special punishment,'"
ante, at
560 (plurality opinion) (quoting
McMillan, 477 U. S., at 103
(STEVENS, J., dissenting)), the constitutional consequences are
clear. As the Court acknowledged in
Apprendi, society has
long recognized a necessary link between punishment and crime, 530
U. S., at 478 ("The defendant's ability to predict with certainty
the judgment from the face of the felony indictment flowed from the
invariable linkage of punishment with crime"). This link makes a
great deal of sense: Why, after all, would anyone care if they were
convicted of murder, as opposed to manslaughter, but for the
increased penalties for the former offense, which in turn reflect
the greater moral opprobrium society attaches to the act? We made
clear in
Apprendi that if a statute" 'annexes a higher
degree of punishment'" based on certain circumstances, exposing a
defendant to that higher degree of punishment requires that those
circumstances be charged in the indictment and proved beyond a
reasonable doubt.
Id., at 480 (quoting J. Archbold, Pleading
and Evidence in Criminal Cases 51 (15th ed. 1862)).
577
This constitutional limitation neither interferes with the
legislature's ability to define statutory ranges of punishment nor
calls into question judicial discretion to impose "judgment
within the range prescribed by statute."
Apprendi,
530 U. S., at 481. But it does protect the criminal defendant's
constitutional right to know,
ex ante, those circumstances
that will determine the applicable range of punishment and to have
those circumstances proved beyond a reasonable doubt:
"If a defendant faces punishment beyond that provided by statute
when an offense is committed under certain circumstances but not
others, it is obvious that both the loss of liberty and the stigma
attaching to the offense are heightened; it necessarily follows
that the defendant should not-at the moment the State is put to
proof of those circumstances-be deprived of protections that have,
until that point, unquestionably attached." Id., at 484.
B
The Court truncates this protection and holds that "facts,
sometimes referred to as sentencing factors," do not need to be
"alleged in the indictment, submitted to the jury, or established
beyond a reasonable doubt,"
ante, at 550, so long as they do
not increase the penalty for the crime beyond the statutory
maximum. This is so even if the fact alters the statutorily
mandated sentencing range, by increasing the mandatory minimum
sentence. But to say that is in effect to claim that the imposition
of a 7-year, rather than a 5-year, mandatory minimum does not
change the constitutionally relevant sentence range because,
regardless, either sentence falls between five years and the
statutory maximum of life, the longest sentence range available
under the statute. This analysis is flawed precisely because the
statute provides incremental sentencing ranges, in which the
mandatory minimum sentence varies upward if a defendant
"brandished" or "discharged" a weapon. As a matter of common sense,
an
578
increased mandatory minimum heightens the loss of liberty and
represents the increased stigma society attaches to the offense.
Consequently, facts that trigger an increased mandatory minimum
sentence warrant constitutional safeguards.
Actual sentencing practices appear to bolster this conclusion.
The suggestion that a 7-year sentence could be imposed even without
a finding that a defendant brandished a firearm ignores the fact
that the sentence imposed when a defendant is found only to have
"carried" a firearm "in relation to" a drug trafficking offense
appears to be, almost uniformly, if not invariably, five years.
Similarly, those found to have brandished a firearm typically, if
not always, are sentenced only to 7 years in prison while those
found to have discharged a firearm are sentenced only to 10 years.
Cf. United States Sentencing Commission, 2001 Datafile, USSCFY01,
Table 1 (illustrating that almost all persons sentenced for
violations of 18 U. S. C. § 924(c)(1)(A) are sentenced to 5, 7, or
10 years' imprisonment). This is true even though anyone convicted
of violating § 924(c)(1)(A) is theoretically eligible to receive a
sentence as severe as life imprisonment.4 Yet under the decision
today, those key facts actually responsible for fixing a
defendant's punishment need not be charged in an indictment or
proved beyond a reasonable doubt.
The incremental increase between five and seven years in prison
may not seem so great in the abstract (of course it must seem quite
different to a defendant actually being incarcerated). However, the
constitutional analysis adopted by the plurality would hold equally
true if the mandatory
4 Indeed it is a certainty that in virtually every instance the
sentence imposed for a § 924(c)(I)(A) violation is tied directly to
the applicable mandatory minimum. See United States Sentencing
Commission, Guidelines Manual §2K2.4, comment., n. 1 (Nov. 2001)
(stating clearly that "the guideline sentence for a defendant
convicted under 18 U. S. C. § 924(c) ... is the minimum term
required by the relevant statute .... A sentence above the minimum
term ... is an upward departure").
579
minimum for a violation of § 924(c)(1) without brandishing was
five years, but the mandatory minimum with brandishing was life
imprisonment. The result must be the same because surely our
fundamental constitutional principles cannot alter depending on
degrees of sentencing severity. So long as it was clear that
Congress intended for "brandishing" to be a sentencing factor, that
fact would still have to be neither charged in the indictment nor
proved beyond a reasonable doubt. But if this is the case, then
Apprendi can easily be avoided by clever statutory
drafting.
It is true that
Apprendi concerned a fact that increased
the penalty for a crime beyond the prescribed statutory maximum,
but the principles upon which it relied apply with equal force to
those facts that expose the defendant to a higher mandatory
minimum: When a fact exposes a defendant to greater punishment than
what is otherwise legally prescribed, that fact is "by definition
[an] 'elemen[t]' of a separate legal offense." 530 U. S., at 483,
n. 10. Whether one raises the floor or raises the ceiling it is
impossible to dispute that the defendant is exposed to greater
punishment than is otherwise prescribed.
This is no less true because mandatory minimum sentences are a
20th-century phenomena. As the Government acknowledged at oral
argument, this fact means only that historical practice is not
directly dispositive of the question whether facts triggering
mandatory minimums must be treated like elements. Tr. of Oral Arg.
47. The Court has not previously suggested that constitutional
protection ends where legislative innovation or ingenuity begins.
Looking to the principles that animated the decision in
Apprendi and the bases for the historical practice upon
which
Apprendi rested (rather than to the historical
pedigree of mandatory minimums), there are no logical grounds for
treating facts triggering mandatory minimums any differently than
facts that increase the statutory maximum. In either case the
defendant cannot predict the judgment from the face of the
580
felony, see 530 U. S., at 478-479, and the absolute statutory
limits of his punishment change, constituting an increased penalty.
In either case the defendant must be afforded the procedural
protections of notice, a jury trial, and a heightened standard of
proof with respect to the facts warranting exposure to a greater
penalty. See
id., at 490;
Jones, 526 U. S., at 253
(SCALIA, J., concurring).
III
McMillan rested on the premise that the" 'applicability
of the reasonable-doubt standard ... has always been dependent on
how a State defines the offense that is charged in any given
case.'" 477 U. S., at 85 (quoting
Patterson v.
New
York, 432 U. S.
197, 211, n. 12 (1977)). Thus, it cannot withstand the logic of
Apprendi, at least with respect to facts for which the
legislature has prescribed a new statutory sentencing range.
McMillan broke from the "traditional understanding" of crime
definition, a tradition that "continued well into the 20th century,
at least until the middle of the century."
Apprendi, supra,
at 518 (THOMAS, J., concurring). The Court in
McMillan did
not, therefore, acknowledge that the change in the prescribed
sentence range upon the finding of particular facts changed the
prescribed range of penalties in a constitutionally significant
way. Rather, while recognizing applicable due process limits, it
concluded that the mandatory minimum at issue did not increase the
prescribed range of penalties but merely required the judge to
impose a specific penalty "within the range already available to
it." 477 U. S., at 87-88. As discussed,
supra, at 577-579,
this analysis is inherently flawed.
Jones called into question, and
Apprendi firmly
limited, a related precept underlying
McMillan: namely, the
State's authority to treat aggravated behavior as a factor
increasing the sentence, rather than as an element of the crime.
Although the plurality resurrects this principle, see
ante,
at 559-560, 565, it must do so in the face of the Court's
contrary
581
conclusion in
Apprendi, which adopts the position taken
by the dissent in
McMillan: "[I]f a State provides that a
specific component of a prohibited transaction shall give rise both
to a special stigma and to a special punishment, that component
must be treated as a 'fact necessary to constitute the crime'
within the meaning of our holding in
In re Winship." 477 U.
S., at 103 (STEVENS, J., dissenting). See
Apprendi, supra,
at 483-484.
Nor should
stare decisis dictate the outcome in this
case; the
stare decisis effect of
McMillan is
considerably weakened for a variety of reasons. As an initial
matter, where the Court has wrongly decided a constitutional
question, the force of
stare decisis is at its weakest. See
Ring v.
Arizona, post, at 608;
Agostini v.
Felton, 521 U.
S. 203, 235 (1997). And while the relationship between
punishment and the constitutional protections attached to the
elements of a crime traces its roots back to the common law,
McMillan was decided only 16 years ago.5 No Court of
Appeals, let alone this Court, has held that
Apprendi has
retroactive effect. The United States concedes, with respect to
prospective application, that it can charge facts upon which a
mandatory minimum sentence is based in the indictment and prove
them to a jury. Tr. of Oral Arg. 42. Consequently, one is hard
pressed to give credence to the plurality's suggestion that "[i]t
is critical not to abandon"
McMillan "at this late date."
Ante, at 567. Rather, it is imperative that the Court
maintain absolute fidelity to the protections of the individual
af-
5 Mandatory minimum sentence schemes are themselves phenomena of
fairly recent vintage genesis. See
ante, at 558-559; see
also
Apprendi v.
New Jersey, 530 U. S. 466, 518 (2000)
(THOMAS, J., concurring) ("In fact, it is fair to say that
McMillan began a revolution in the law regarding the
definition of 'crime.' Today's decision, far from being a sharp
break with the past, marks nothing more than a return to the
status quo ante-the status quo that reflected the original
meaning of the Fifth and Sixth Amendments").
582
forded by the notice, trial by jury, and
beyond-a-reasonabledoubt requirements.
Finally, before today, no one seriously believed that the
Court's earlier decision in
McMillan could coexist with the
logical implications of the Court's later decisions in
Apprendi and
Jones. In both cases, the dissent said
as much:
"The essential holding of McMillan conflicts with at
least two of the several formulations the Court gives to the rule
it announces today. First, the Court endorses the following
principle: '[I]t is unconstitutional for a legislature to remove
from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed. It is equally clear that such facts must be established by
proof beyond a reasonable doubt.' Ante, at 490 (emphasis
added) (quoting Jones, supra, at 252-253 (STEVENS, J.,
concurring)). Second, the Court endorses the rule as restated in J
usTICE SCALIA'S concurring opinion in Jones. See
ante, at 490. There, JUSTICE SCALIA wrote: '[I]t is
unconstitutional to remove from the jury the assessment of facts
that alter the congressionally prescribed range of penalties
to which a criminal defendant is exposed.' Jones, supra, at
253 (emphasis added). Thus, the Court appears to hold that any fact
that increases or alters the range of penalties to which a
defendant is exposedwhich, by definition, must include increases or
alterations to either the minimum or maximum penaltiesmust be
proved to a jury beyond a reasonable doubt. In McMillan,
however, we rejected such a rule to the extent it concerned those
facts that increase or alter the minimum penalty to which a
defendant is exposed. Accordingly, it is incumbent on the Court not
only to admit that it is overruling McMillan, but also to
explain why such a course of action is appropriate under normal
principles of stare decisis." Apprendi, 530 U. S., at 533
(O'CONNOR, J., dissenting).
583
See also
Jones, 526 U. S., at 268 (KENNEDY, J.,
dissenting) ("[B]y its terms, JUSTICE SCALIA'S view ... would call
into question the validity of judge-administered mandatory minimum
sentencing provisions, contrary to our holding in
McMillan.
Once the facts triggering application of the mandatory minimum are
found by the judge, the sentencing range to which the defendant is
exposed is altered"). There is no question but that
stare
decisis may yield where a prior decision's "underpinnings [have
been] eroded, by subsequent decisions of this Court."
United
States v.
Gaudin, 515 U. S. 506, 521
(1995).
Further supporting the essential incompatibility of
Apprendi and
McMillan, JUSTICE BREYER concurs
in the judgment but not the entire opinion of the Court,
recognizing that he "cannot easily distinguish
Apprendi ...
from this case in terms of logic. For that reason, I cannot agree
with the plurality's opinion insofar as it finds such a
distinction."
Ante, at 569 (opinion concurring in part and
concurring in judgment). This leaves only a minority of the Court
embracing the distinction between
McMillan and
Apprendi that forms the basis of to day's holding, and at
least one Member explicitly continues to reject both
Apprendi and
Jones. Ante, at 569 (O'CONNOR, J.,
concurring).
***
"Conscious of the likelihood that legislative decisions may have
been made in reliance on
McMillan," in
Apprendi, "we
reserve[d] for another day the question whether
stare
decisis considerations preclude reconsideration of its narrower
holding." 530 U. S., at 487, n. 13. But that day has come, and
adherence to
stare decisis in this case would require
infidelity to our constitutional values. Because, like most Members
of this Court, I cannot logically distinguish the issue here from
the principles underlying the Court's decision in
Apprendi,
I respectfully dissent.
Comments
Be the first to comment
Leave a Comment