Lead Opinion
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., Amdt. 5; see Hamling v. United States,
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
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,
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—
“(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 carried] 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,
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.
We granted certiorari,
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,
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,
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.
Nothing about the text or history of the statute rebuts the presumption drawn from its structure. Against the single-
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,
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(e)(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)(l)(A)(ii) is unconstitutional because McMillan is no longer sound authority. Stare decisis is not an “inexorable command,” Burnet v. Coronado Oil & Gas Co.,
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,
Though defining criminal conduct is a task generally “left to the legislative branch,” Patterson v. New York,
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,
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,
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.
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,
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:
“[Wjithin 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 penaltyabove 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,
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,
The Court held that the enhancement was unconstitutional. “[0]ur cases in this area, and . . . the history upon which they rely,” the Court observed, confirmed the eonstitu-
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,”
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:
“The evidence . . . that punishment was, by law, tied to the offense . . . and the evidence that American judges 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,
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.”
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
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
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,
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)(l)(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,
The Court is well aware that many question the wisdom of mandatory minimum sentencing. Mandatory mínimums, 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
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Concurrence Opinion
concurring in part and concurring in the judgment.
I cannot easily _ distinguish Apprendi v. New Jersey,
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, Nat. 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,
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.
I consequently join Parts I, II, and IV of the Court’s opinion and concur in its judgment.
Dissenting Opinion
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,
McMillan, however, conflicts with the Court’s later decision in Apprendi v. New Jersey,
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,
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
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,
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
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)(l)(A)(i) is five
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,
“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
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.
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
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.”
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 mínimums 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 mínimums), there are no logical grounds for treating facts triggering mandatory mínimums any differently than facts that increase the statutory maximum. In either case the defendant cannot predict the judgment from the face of the
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.’”
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
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,
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 Justice 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 exposed— which, by definition, must include increases or alterations to either the minimum or maximum penalties— must 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).
Further supporting the essential incompatibility of Ap-prendi 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 today’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.”
Notes
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.
The presentence report recommended that Harris be given a term of imprisonment of zero to six months for the distribution charge.
See 18 U.S. C. § 2119.
Indeed it is a certainty that in virtually every instance the sentence imposed for a § 924(c)(1)(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”).
Mandatory minimum sentence schemes are themselves phenomena of fairly recent vintage genesis. See ante, at 558-559; see also Apprendi v. New Jersey,
Concurrence Opinion
concurring.
Petitioner bases his statutory argument that brandishing must be interpreted as an offense element on Jones v. United States,