Alleyne v. United States , 133 S. Ct. 2151 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ALLEYNE v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 11–9335. Argued January 14, 2013—Decided June 17, 2013
Petitioner Alleyne was charged, as relevant here, with using or carry-
ing a firearm in relation to a crime of violence, 18 U.S. C.
§924(c)(1)(A), which carries a 5-year mandatory minimum sentence,
§924(c)(1)(A)(i), that increases to a 7-year minimum “if the firearm is
brandished,” §924(c)(1)(A)(ii), and to a 10-year minimum “if the fire-
arm is discharged,” §924(c)(1)(A)(iii). In convicting Alleyne, the jury
form indicated that he had “[u]sed or carried a firearm during and in
relation to a crime of violence,” but not that the firearm was
“[b]randished.” When the presentence report recommended a 7-year
sentence on the §924(c) count, Alleyne objected, arguing that the ver-
dict form clearly indicated that the jury did not find brandishing be-
yond a reasonable doubt and that raising his mandatory minimum
sentence based on a sentencing judge’s finding of brandishing would
violate his Sixth Amendment right to a jury trial. The District Court
overruled his objection, relying on this Court’s holding in Harris v.
United States, 536 U.S. 545, that judicial factfinding that increases
the mandatory minimum sentence for a crime is permissible under
the Sixth Amendment. The Fourth Circuit affirmed, agreeing that
Alleyne’s objection was foreclosed by Harris.
Held: The judgment is vacated, and the case is remanded. Pp. 10–17.
457 Fed. Appx. 348, vacated and remanded.
JUSTICE THOMAS delivered the opinion of the Court with respect to
Parts I, III–B, III–C, and IV, concluding:
1. Because mandatory minimum sentences increase the penalty for
a crime, any fact that increases the mandatory minimum is an “ele-
ment” that must be submitted to the jury. Accordingly, Harris is
overruled. Pp. 10–16.
2 ALLEYNE v. UNITED STATES
Syllabus
(a) Apprendi v. New Jersey, 530 U.S. 466, concluded that any
“ ‘facts that increase the prescribed range of penalties to which a
criminal defendant is exposed’ ” are elements of the crime, id., at 490,
and thus the Sixth Amendment provides defendants with the right to
have a jury find those facts beyond a reasonable doubt, id., at 484.
Apprendi’s principle applies with equal force to facts increasing the
mandatory minimum, for a fact triggering a mandatory minimum al-
ters the prescribed range of sentences to which a criminal defendant
is exposed. Id., at 490. Because the legally prescribed range is the
penalty affixed to the crime, it follows that a fact increasing either
end of the range produces a new penalty and constitutes an ingredi-
ent of the offense. It is impossible to dissociate the floor of a sentenc-
ing range from the penalty affixed to the crime. The fact that crimi-
nal statutes have long specified both the floor and ceiling of sentence
ranges is evidence that both define the legally prescribed penalty. It
is also impossible to dispute that the facts increasing the legally pre-
scribed floor aggravate the punishment, heightening the loss of liber-
ty associated with the crime. Defining facts that increase a mandato-
ry minimum to be part of the substantive offense enables the
defendant to predict the legally applicable penalty from the face of
the indictment, see id., at 478–479, and preserves the jury’s historic
role as an intermediary between the State and criminal defendants,
see United States v. Gaudin, 515 U.S. 506, 510–511. In reaching a
contrary conclusion, Harris relied on the fact that the 7-year mini-
mum sentence could have been imposed with or without a judicial
finding of brandishing, because the jury’s finding authorized a sen-
tence of five years to life, 536 U. S., at 561, but that fact is beside the
point. The essential Sixth Amendment inquiry is whether a fact is
an element of the crime. Because the fact of brandishing aggravates
the legally prescribed range of allowable sentences, it constitutes an
element of a separate, aggravated offense that must be found by the
jury, regardless of what sentence the defendant might have received
had a different range been applicable. There is no basis in principle
or logic to distinguish facts that raise the maximum from those that
increase the minimum. Pp. 10–15.
(b) This ruling does not mean that any fact that influences judi-
cial discretion must be found by a jury. This Court has long recog-
nized that broad sentencing discretion, informed by judicial factfind-
ing, does not violate the Sixth Amendment. See, e.g., Dillon v. United
States, 560 U.S. ___, ___. Pp. 15–16.
2. Here, the sentencing range supported by the jury’s verdict was
five years’ imprisonment to life, but the judge, rather than the jury,
found brandishing. This increased the penalty to which Alleyne was
subjected and violated his Sixth Amendment rights. Pp. 16–17.
Cite as: 570 U. S. ____ (2013) 3
Syllabus
JUSTICE THOMAS, joined by JUSTICE GINSBURG, JUSTICE SOTOMAYOR,
and JUSTICE KAGAN, concluded in Parts II and III–A:
1. The Sixth Amendment right to trial “by an impartial jury,” in
conjunction with the Due Process Clause, requires that each element
of a crime be proved to the jury beyond a reasonable doubt. Gaudin,
515 U. S., at 510. Several divided opinions of this Court have ad-
dressed the constitutional status of a “sentencing factor.” In McMil-
lan v. Pennsylvania, 477 U.S. 79, 86, the Court held that facts found
to increase a mandatory minimum sentence are sentencing factors
that a judge could find by a preponderance of the evidence. In Ap-
prendi, however, the Court declined to extend McMillan to a New
Jersey statute that increased the maximum term of imprisonment if
the trial judge found that the crime was committed with racial bias,
530 U. S., at 470, finding that any fact that increased the prescribed
statutory maximum sentence must be an “element” of the offense to
be found by the jury. Id., at 483, n. 10, 490. Two years later in Har-
ris, the Court declined to apply Apprendi to facts that increased the
mandatory minimum sentence but not the maximum sentence. 536
U. S., at 557. Pp. 3–6.
2. The touchstone for determining whether a fact must be found by
a jury beyond a reasonable doubt is whether the fact constitutes an
“element” of the charged offense. United States v. O’Brien, 560 U.S.
218, ___. Apprendi’s definition necessarily includes not only facts
that increase the ceiling, but also those that increase the floor. At
common law, the relationship between crime and punishment was
clear. A sentence was prescribed for each offense, leaving judges
with little sentencing discretion. If a fact was by law essential to the
penalty, it was an element of the offense. There was a well-
established practice of including in the indictment, and submitting to
the jury, every fact that was a basis for imposing or increasing pun-
ishment. And this understanding was reflected in contemporaneous
court decisions and treatises. Pp. 6–10.
JUSTICE BREYER, agreeing that Harris v. United States, 536 U.S.
545, should be overruled, concluded that he continues to disagree
with Apprendi v. New Jersey, 530 U.S. 466, because it fails to recog-
nize the law’s traditional distinction between elements of a crime and
sentencing facts, but finds it highly anomalous to read Apprendi as
insisting that juries find sentencing facts that permit a judge to im-
pose a higher sentence while not insisting that juries find sentencing
facts that require a judge to impose a higher sentence. Overruling
Harris and applying Apprendi’s basic jury-determination rule to
mandatory minimum sentences would erase that anomaly. Where a
maximum sentence is at issue, Apprendi means that a judge who
wishes to impose a higher sentence cannot do so unless a jury finds
4 ALLEYNE v. UNITED STATES
Syllabus
the requisite statutory factual predicate. Where a mandatory mini-
mum sentence is at issue, Apprendi would mean that the government
cannot force a judge who does not wish to impose a higher sentence to
do so unless a jury finds the requisite statutory factual predicate.
Pp. 1–3.
THOMAS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III–B, III–C, and IV, in
which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and an
opinion with respect to Parts II and III–A, in which GINSBURG, SO-
TOMAYOR , and K AGAN , JJ., joined. S OTOMAYOR , J., filed a concurring
opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed an
opinion concurring in part and concurring in the judgment. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA and KENNEDY, JJ.,
joined. ALITO, J., filed a dissenting opinion.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9335
_________________
ALLEN RYAN ALLEYNE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2013]
JUSTICE THOMAS announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, III–B, III–C, and IV, and an opinion with respect
to Parts II and III–A, in which JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, AND JUSTICE KAGAN join.
In Harris v. United States, 536 U.S. 545 (2002), this
Court held that judicial factfinding that increases the
mandatory minimum sentence for a crime is permissible
under the Sixth Amendment. We granted certiorari to
consider whether that decision should be overruled. 568
U. S. ___ (2012).
Harris drew a distinction between facts that increase
the statutory maximum and facts that increase only the
mandatory minimum. We conclude that this distinction is
inconsistent with our decision in Apprendi v. New Jersey,
530 U.S. 466 (2000), and with the original meaning of the
Sixth Amendment. Any fact that, by law, increases the
penalty for a crime is an “element” that must be submitted
to the jury and found beyond a reasonable doubt. See id.,
at 483, n. 10, 490. Mandatory minimum sentences in-
crease the penalty for a crime. It follows, then, that any
2 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
Opinion of the Court
fact that increases the mandatory minimum is an “ele-
ment” that must be submitted to the jury. Accordingly,
Harris is overruled.
I
Petitioner Allen Ryan Alleyne and an accomplice de-
vised a plan to rob a store manager as he drove the store’s
daily deposits to a local bank. By feigning car trouble,
they tricked the manager to stop. Alleyne’s accomplice
approached the manager with a gun and demanded the
store’s deposits, which the manager surrendered. Alleyne
was later charged with multiple federal offenses, includ-
ing robbery affecting interstate commerce, 18 U.S. C.
§1951(a), and using or carrying a firearm in relation to a
crime of violence, §924(c)(1)(A). Section 924(c)(1)(A) pro-
vides, in relevant part, that anyone who “uses or carries a
firearm” in relation to a “crime of violence” shall:
“(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 jury convicted Alleyne. The jury indicated on the
verdict form that Alleyne had “[u]sed or carried a firearm
during and in relation to a crime of violence,” but did not
indicate a finding that the firearm was “[b]randished.”
App. 40.
The presentence report recommended a 7-year sentence
on the §924(c) count, which reflected the mandatory min-
imum sentence for cases in which a firearm has been
“brandished,” §924(c)(1)(A)(ii). Alleyne objected to this
recommendation. He argued that it was clear from the
verdict form that the jury did not find brandishing beyond
a reasonable doubt and that he was subject only to the
Cite as: 570 U. S. ____ (2013) 3
Opinion of THOMAS, J.
5-year minimum for “us[ing] or carr[ying] a firearm.” Al-
leyne contended that raising his mandatory minimum
sentence based on a sentencing judge’s finding that he
brandished a firearm would violate his Sixth Amendment
right to a jury trial.
The District Court overruled Alleyne’s objection. It
explained that, under Harris, brandishing was a sentenc-
ing factor that the court could find by a preponderance of
evidence without running afoul of the Constitution. It
found that the evidence supported a finding of brandish-
ing, and sentenced Alleyne to seven years’ imprisonment
on the §924(c) count. The Court of Appeals affirmed,
likewise noting that Alleyne’s objection was foreclosed by
Harris. 457 Fed. Appx. 348 (CA4 2011) (per curiam).
II
The Sixth Amendment provides that those “accused” of
a “crime” have the right to a trial “by an impartial jury.”
This right, in conjunction with the Due Process Clause,
requires that each element of a crime be proved to the jury
beyond a reasonable doubt. United States v. Gaudin, 515
U.S. 506, 510 (1995); In re Winship, 397 U.S. 358, 364
(1970). The substance and scope of this right depend upon
the proper designation of the facts that are elements of the
crime.
A
The question of how to define a “crime”—and, thus, how
to determine what facts must be submitted to the jury—
has generated a number of divided opinions from this
Court. The principal source of disagreement is the consti-
tutional status of a special sort of fact known as a “sen-
tencing factor.” This term was first used in McMillan v.
Pennsylvania, 477 U.S. 79, 86 (1986), to refer to facts that
are not found by a jury but that can still increase the
defendant’s punishment. Following McMillan’s introduc-
4 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
tion of this term, this Court has made a number of efforts
to delimit its boundaries.
McMillan initially invoked the distinction between
“elements” and “sentencing factors” to reject a constitu-
tional challenge to Pennsylvania’s Mandatory Minimum
Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982). That law
provided that anyone convicted of certain felonies would
be subject to a mandatory minimum sentence if the judge
found, by a preponderance of evidence, that the person
“ ‘visibly possessed a firearm’ ” in the course of committing
specified crimes. 477 U. S., at 81, n. 1. While the Court
acknowledged that there were constitutional limits to the
State’s ability to “defin[e] crimes and prescrib[e] penal-
ties,” it found that the Commonwealth had permissi-
bly defined visible possession as a sentencing factor,
rather than an element. Id., at 86. In the Court’s view,
this allowed the judge, rather than the jury, to find this
fact by a preponderance of evidence without violating the
Constitution.
McMillan did not address whether legislatures’ freedom
to define facts as sentencing factors extended to findings
that increased the maximum term of imprisonment for an
offense. We foreshadowed an answer to this question in
Jones v. United States, 526 U.S. 227, 243, n. 6 (1999), but
did not resolve the issue until Apprendi. There, we identi-
fied a concrete limit on the types of facts that legislatures
may designate as sentencing factors.
In Apprendi, the defendant was sentenced to 12 years’
imprisonment under a New Jersey statute that increased
the maximum term of imprisonment from 10 years to 20
years if the trial judge found that the defendant commit-
ted his crime with racial bias. 530 U. S., at 470. In de-
fending its sentencing scheme, the State of New Jersey
argued that, under McMillan, the legislature could define
racial bias as a sentencing factor to be found by the judge.
We declined to extend McMillan that far. We explained
Cite as: 570 U. S. ____ (2013) 5
Opinion of THOMAS, J.
that there was no “principled basis for treating” a fact
increasing the maximum term of imprisonment differently
than the facts constituting the base offense. 530 U. S., at
476. The historic link between crime and punishment,
instead, led us to conclude that any fact that increased the
prescribed statutory maximum sentence must be an “ele-
ment” of the offense to be found by the jury. Id., at 483,
n. 10, 490. We, thus, found that Apprendi’s sentence
had been unconstitutionally enhanced by the judge’s finding
of racial bias by a preponderance of evidence. Id., at
491–492.
B
While Apprendi only concerned a judicial finding that
increased the statutory maximum, the logic of Apprendi
prompted questions about the continuing vitality, if not
validity, of McMillan’s holding that facts found to increase
the mandatory minimum sentence are sentencing factors
and not elements of the crime. We responded two years
later in Harris v. United States, 536 U.S. 545, where we
considered the same statutory provision and the same
question before us today.
In Harris, the defendant was charged, under §924(c)
(1)(A), with carrying a firearm in the course of committing
a drug trafficking crime. The mandatory minimum sen-
tence based on the jury’s verdict alone was five years, but
the District Court imposed a 7-year mandatory minimum
sentence based on its finding, by a preponderance of evi-
dence, that the defendant also brandished the firearm. As
in this case, Harris challenged his sentence on the ground
that the 7-year mandatory minimum sentence was uncon-
stitutional under Apprendi, even though the judge’s find-
ing did not alter the maximum sentence to which he was
exposed. Harris, supra, at 551.
The Court declined to apply Apprendi to facts that
increased the mandatory minimum sentence but not the
6 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
maximum sentence. 536 U. S., at 557. In the Court’s
view, judicial factfinding that increased the mandatory
minimum did not implicate the Sixth Amendment. Be-
cause the jury’s verdict “authorized the judge to impose
the minimum with or without the finding,” ibid., the Court
was of the view that the factual basis for increasing the
minimum sentence was not “ ‘essential’ ” to the defendant’s
punishment. Id., at 560–561 (plurality opinion). Instead,
it merely limited the judge’s “choices within the author-
ized range.” Id., at 567. From this, the Court drew a
distinction between “facts increasing the defendant’s
minimum sentence and facts extending the sentence be-
yond the statutory maximum,” id., at 566. The Court
limited Apprendi’s holding to instances where the factual
finding increases the statutory maximum sentence.
III
Alleyne contends that Harris was wrongly decided
and that it cannot be reconciled with our reasoning in
Apprendi. We agree.
A
The touchstone for determining whether a fact must be
found by a jury beyond a reasonable doubt is whether the
fact constitutes an “element” or “ingredient” of the charged
offense. United States v. O’Brien, 560 U.S. 218, ___ (2010)
(slip op., at 5); Apprendi, supra, at 483, n. 10; J. Archbold,
Pleading and Evidence in Criminal Cases 52 (5th Am. ed.
1846) (hereinafter Archbold). In Apprendi, we held that a
fact is by definition an element of the offense and must be
submitted to the jury if it increases the punishment above
what is otherwise legally prescribed. 530 U. S., at 483,
n. 10. While Harris declined to extend this principle to
facts increasing mandatory minimum sentences, Appren-
di’s definition of “elements” necessarily includes not only
facts that increase the ceiling, but also those that increase
Cite as: 570 U. S. ____ (2013) 7
Opinion of THOMAS, J.
the floor. Both kinds of facts alter the prescribed range of
sentences to which a defendant is exposed and do so in a
manner that aggravates the punishment. 530 U. S., at
483, n. 10; Harris, supra, at 579 (THOMAS, J., dissenting).
Facts that increase the mandatory minimum sentence are
therefore elements and must be submitted to the jury and
found beyond a reasonable doubt.
1
At common law, the relationship between crime and
punishment was clear. As discussed in Apprendi, “[t]he
substantive criminal law tended to be sanction-specific,”
meaning “it prescribed a particular sentence for each
offense.” Langbein, The English Criminal Trial Jury on
the Eve of the French Revolution, in The Trial Jury in
England, France, Germany 1700–1900, p. 36 (A. Schioppa
ed. 1987) (quoted in Apprendi, supra, at 479). The system
left judges with little sentencing discretion: once the facts
of the offense were determined by the jury, the “judge was
meant simply to impose [the prescribed] sentence.” Lang-
bein, supra, at 36–37; see also 3 W. Blackstone, Commen-
taries on the Laws of England 396 (1768) (“THE judgment,
though pronounced or awarded by the judges, is not their
determination or sentence, but the determination and
sentence of the law” (emphasis deleted)). This Court has
recognized that the same was true, in many instances,
early on in this country. United States v. Grayson, 438
U.S. 41, 45 (1978); see, e.g., Commonwealth v. Smith, 1
Mass. 245 (1804) (describing state law that specified a
punishment for larceny of damages three times the value
of the stolen goods). While some early American statutes
provided ranges of permissible sentences, K. Stith & J.
Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 9 (1998), the ranges themselves were
linked to particular facts constituting the elements of the
crime. E.g., Lacy v. State, 15 Wis. 13 (1862) (discussing
8 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
arson statute that provided for a sentence of 7 to 14 years
where the house was occupied at the time of the offense,
but a sentence of 3 to 10 if it was not); Ga. Penal Code
§§4324–4325 (1867) (robbery “by open force or violence”
was punishable by 4 to 20 years’ imprisonment, while
“[r]obbery by intimidation, or without using force and
violence,” was punishable by 2 to 5 years’ imprisonment).
This linkage of facts with particular sentence ranges
(defined by both the minimum and the maximum) reflects
the intimate connection between crime and punishment.
Consistent with this connection between crime and
punishment, various treatises defined “crime” as consist-
ing of every fact which “is in law essential to the punish-
ment sought to be inflicted,” 1 J. Bishop, Criminal Proce-
dure 50 (2d ed. 1872) (hereinafter Bishop), or the whole of
the wrong “to which the law affixes . . . punishment,” id.,
§80, at 51. See also 1 J. Bishop, New Criminal Procedure
§84, p. 49 (4th ed. 1895) (defining crime as “that wrongful
aggregation [of elements] out of which the punishment
proceeds”); Archbold 128 (defining crime to include any
fact that “annexes a higher degree of punishment”). Nu-
merous high courts agreed that this formulation “accu-
rately captured the common-law understanding of what
facts are elements of a crime.” Apprendi, 530 U. S., at
511–512 (THOMAS, J., concurring) (collecting cases). If a
fact was by law essential to the penalty, it was an element
of the offense.
2
From these widely recognized principles followed a well-
established practice of including in the indictment, and
submitting to the jury, every fact that was a basis for
imposing or increasing punishment. While an exhaustive
history need not be recounted here, see id., at 501–509
(THOMAS, J., concurring) (detailing practices of American
courts from the 1840’s onward), a few particularly salient
Cite as: 570 U. S. ____ (2013) 9
Opinion of THOMAS, J.
examples illustrate the point. In Hope v. Commonwealth,
50 Mass. 134 (1845), the defendant was indicted for (and
convicted of) larceny. The larceny statute established two
levels of sentencing based on whether the value of the
stolen property exceeded $100. Because punishment
varied with value, the state high court found that value
was an element of the offense:
“Our statutes, it will be remembered, prescribe the
punishment for larceny, with reference to the value of
the property stolen; and for this reason, as well as be-
cause it is in conformity with long established prac-
tice, the court are of [the] opinion that the value of the
property alleged to be stolen must be set forth in the
indictment.” Id., at 137.
Numerous other contemporaneous court decisions reflect
this same understanding. See, e.g., Ritchey v. State, 7
Blackf. 168, 169 (Ind. 1844) (holding that indictment for
arson must allege value of property destroyed, because
statute set punishment based on value); United States v.
Fisher, 25 F. Cas. 1086 (No. 15,102) (CC Ohio 1849)
(McLean, J.) (“A carrier of the mail is subject to a higher
penalty where he steals a letter out of the mail, which
contains an article of value. And when this offense is
committed, the indictment must allege the letter con-
tained an article of value, which aggravates the offense
and incurs a higher penalty”).
A number of contemporaneous treatises similarly took
the view that a fact that increased punishment must be
charged in the indictment. As one 19th-century commen-
tator explained:
“Where a statute annexes a higher degree of punish-
ment to a common-law felony, if committed under
particular circumstances, an indictment for the offence,
in order to bring the defendant within that higher de-
gree of punishment, must expressly charge it to have
10 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
Opinion of the Court
been committed under those circumstances, and must
state the circumstances with certainty and precision.
[2 M. Hale, Pleas of the Crown *170].” Archbold 51
(15th ed. 1862).
Another explained that “the indictment must contain an
allegation of every fact which is legally essential to the
punishment to be inflicted.” Bishop §81, at 51. This rule
“enabled [the defendant] to determine the species of of-
fence” with which he was charged “in order that he may
prepare his defence accordingly . . . and that there may be
no doubt as to the judgment which should be given, if the
defendant be convicted.” Archbold 44 (emphasis added).
As the Court noted in Apprendi, “[t]he 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.” 530 U. S., at 478.
B
Consistent with common-law and early American prac-
tice, Apprendi concluded that any “facts that increase the
prescribed range of penalties to which a criminal defend-
ant is exposed” are elements of the crime. Id., at 490
(internal quotation marks omitted); id., 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”).1 We held that the
Sixth Amendment provides defendants with the right to
have a jury find those facts beyond a reasonable doubt.
Id., at 484. While Harris limited Apprendi to facts in-
creasing the statutory maximum, the principle applied in
Apprendi applies with equal force to facts increasing the
——————
1 In Almendarez-Torres v. United States, 523 U.S. 224 (1998), we
recognized a narrow exception to this general rule for the fact of a prior
conviction. Because the parties do not contest that decision’s vitality,
we do not revisit it for purposes of our decision today.
Cite as: 570 U. S. ____ (2013) 11
Opinion of THOMAS, J.
Opinion of the Court
mandatory minimum.
It is indisputable that a fact triggering a mandatory
minimum alters the prescribed range of sentences to
which a criminal defendant is exposed. Apprendi, supra,
at 490; Harris, 536 U. S., at 575, 582 (THOMAS, J., dissent-
ing). But for a finding of brandishing, the penalty is five
years to life in prison; with a finding of brandishing, the
penalty becomes seven years to life. Just as the maximum
of life marks the outer boundary of the range, so seven
years marks its floor. And because the legally prescribed
range is the penalty affixed to the crime, infra, this page,
it follows that a fact increasing either end of the range
produces a new penalty and constitutes an ingredient of
the offense. Apprendi, supra, at 501 (THOMAS, J., concur-
ring); see also Bishop §598, at 360–361 (if “a statute pre-
scribes a particular punishment to be inflicted on those
who commit it under special circumstances which it men-
tions, or with particular aggravations,” then those special
circumstances must be specified in the indictment (em-
phasis added)); 1 F. Wharton, Criminal Law §371, p. 291
(rev. 7th ed. 1874) (similar).
It is impossible to dissociate the floor of a sentencing
range from the penalty affixed to the crime. See Harris,
supra, at 569 (BREYER, J., concurring in part and concur-
ring in judgment) (facts increasing the minimum and facts
increasing the maximum cannot be distinguished “in
terms of logic”). Indeed, criminal statutes have long speci-
fied both the floor and ceiling of sentence ranges, which is
evidence that both define the legally prescribed penalty.
See, e.g., supra, at 7–8; N. Y. Penal Code §§231–232, p. 70
(1882) (punishment for first-degree robbery was 10 to 20
years’ imprisonment; second-degree robbery was 5 to 15
years); Va. Code ch. 192, §§1–2, p. 787 (2d ed. 1860) (arson
committed at night was punishable by 5 to 10 years; arson
committed during the day was 3 to 10 years). This histori-
cal practice allowed those who violated the law to know, ex
12 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
Opinion of the Court
ante, the contours of the penalty that the legislature af-
fixed to the crime—and comports with the obvious truth
that the floor of a mandatory range is as relevant to
wrongdoers as the ceiling. A fact that increases a sen-
tencing floor, thus, forms an essential ingredient of the
offense.
Moreover, it is impossible to dispute that facts increas-
ing the legally prescribed floor aggravate the punishment.
Harris, supra, at 579 (THOMAS, J., dissenting); O’Brien,
560 U. S., at ___ (THOMAS, J., concurring in judgment)
(slip op., at 2). Elevating the low-end of a sentenc-
ing range heightens the loss of liberty associated with
the crime: the defendant’s “expected punishment has
increased as a result of the narrowed range” and “the prose-
cution is empowered, by invoking the mandatory mini-
mum, to require the judge to impose a higher punishment
than he might wish.” Apprendi, supra, at 522 (THOMAS,
J., concurring). Why else would Congress link an in-
creased mandatory minimum to a particular aggravating
fact other than to heighten the consequences for that
behavior? See McMillan, 477 U. S., at 88, 89 (twice noting
that a mandatory minimum “ ‘ups the ante’ ” for a criminal
defendant); Harris, supra, at 580 (THOMAS, J., dissenting).
This reality demonstrates that the core crime and the fact
triggering the mandatory minimum sentence together
constitute a new, aggravated crime, each element of which
must be submitted to the jury.2
——————
2 Juries must find any facts that increase either the statutory maxi-
mum or minimum because the Sixth Amendment applies where a
finding of fact both alters the legally prescribed range and does so in a
way that aggravates the penalty. Importantly, this is distinct from
factfinding used to guide judicial discretion in selecting a punishment
“within limits fixed by law.” Williams v. New York, 337 U.S. 241, 246
(1949). While such findings of fact may lead judges to select sentences
that are more severe than the ones they would have selected without
those facts, the Sixth Amendment does not govern that element of
sentencing. Infra, at 15–17, and n. 6.
Cite as: 570 U. S. ____ (2013) 13
Opinion of THOMAS, J.
Opinion of the Court
Defining facts that increase a mandatory statutory
minimum to be part of the substantive offense enables the
defendant to predict the legally applicable penalty from
the face of the indictment. See Apprendi, 530 U. S., at
478–479. It also preserves the historic role of the jury as
an intermediary between the State and criminal defend-
ants. See United States v. Gaudin, 515 U. S., at 510–511
(“This right was designed ‘to guard against a spirit of
oppression and tyranny on the part of rulers,’ and ‘was
from very early times insisted on by our ancestors in the
parent country, as the great bulwark of their civil and
political liberties’ ” (quoting 2 J. Story, Commentaries on
the Constitution of the United States §§1779, 1780, pp.
540–541 (4th ed. 1873))); Williams v. Florida, 399 U.S. 78,
100 (1970) (“[T]he essential feature of a jury obviously lies
in [its] interposition between the accused and his ac-
cuser”); Duncan v. Louisiana, 391 U.S. 145, 155 (1968) (“A
right to jury trial is granted to criminal defendants in
order to prevent oppression by the Government”).
In adopting a contrary conclusion, Harris relied on the
fact that the 7-year minimum sentence could have been
imposed with or without a judicial finding of brandishing,
because the jury’s finding already authorized a sentence of
five years to life. 536 U. S., at 561. The dissent repeats
this argument today. See post, at 5 (opinion of ROBERTS,
C. J.) (“The jury’s verdict authorized the judge to impose
the precise sentence he imposed for the precise factual
reason he imposed it”). While undoubtedly true, this fact
is beside the point.3
——————
3 Apprendi rejected an argument similar to the one advanced in Har-
ris. In Apprendi, the State of New Jersey argued that increasing the
defendant’s statutory maximum on the challenged count did not violate
the Sixth Amendment because “the judge could have imposed consecu-
tive sentences,” in conjunction with other counts, to produce the sen-
tence that the defendant actually received on the count at issue. 530
U. S., at 474. We found that this possibility did not preclude a Sixth
14 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
Opinion of the Court
As noted, the essential Sixth Amendment inquiry is
whether a fact is an element of the crime. When a finding
of fact alters the legally prescribed punishment so as to
aggravate it, the fact necessarily forms a constituent part
of a new offense and must be submitted to the jury. It is
no answer to say that the defendant could have received
the same sentence with or without that fact. It is obvious,
for example, that a defendant could not be convicted and
sentenced for assault, if the jury only finds the facts for
larceny, even if the punishments prescribed for each crime
are identical. One reason is that each crime has different
elements and a defendant can be convicted only if the jury
has found each element of the crime of conviction.
Similarly, because the fact of brandishing aggravates
the legally prescribed range of allowable sentences, it
constitutes an element of a separate, aggravated offense
that must be found by the jury, regardless of what sen-
tence the defendant might have received if a different
range had been applicable. Indeed, if a judge were to find
a fact that increased the statutory maximum sentence,
such a finding would violate the Sixth Amendment, even if
the defendant ultimately received a sentence falling within
the original sentencing range (i.e., the range applicable
without that aggravating fact). Cf. Hobbs v. State, 44 Tex.
353 (1875) (reversing conviction where the defendant was
indicted for a crime punishable by 2 to 5 years and sen-
tenced to 3 years because the trial court improperly in-
structed the jury to sentence the defendant between 2 to
10 years if it found a particular aggravating fact); State v.
Callahan, 109 La. 946, 33 So. 931 (1903) (finding ex post
facto violation where a newly enacted law increased the
range of punishment, even though defendant was sen-
tenced within the range established by the prior law).4
——————
Amendment violation. Ibid.
4 Many criminal statutes allow for this possibility. For example, an
Cite as: 570 U. S. ____ (2013) 15
Opinion of THOMAS, J.
Opinion of the Court
The essential point is that the aggravating fact produced a
higher range, which, in turn, conclusively indicates that
the fact is an element of a distinct and aggravated crime.
It must, therefore, be submitted to the jury and found
beyond a reasonable doubt.
Because there is no basis in principle or logic to dis-
tinguish facts that raise the maximum from those that
increase the minimum, Harris was inconsistent with Ap-
prendi. It is, accordingly, overruled.5
C
In holding that facts that increase mandatory minimum
sentences must be submitted to the jury, we take care to
note what our holding does not entail. Our ruling today
does not mean that any fact that influences judicial discre-
tion must be found by a jury. We have long recognized
that broad sentencing discretion, informed by judicial
factfinding, does not violate the Sixth Amendment. See,
e.g., Dillon v. United States, 560 U.S. ___, ___ (2010) (slip
op., at 11) (“[W]ithin established limits[,] . . . the exercise
of [sentencing] discretion does not contravene the Sixth
——————
Illinois law provides for a sentence of 2 to 10 years’ imprisonment for
intimidation, Ill. Comp. Stat., ch. 720, §5/12–6(b) (West 2010), and 3 to
14 years for aggravated intimidation, §5/12–6.2(b). The elements of
aggravated intimidation include all the elements of intimidation plus
one enumerated aggravating fact. Under this statute, if a jury found
each element of intimidation, but the judge purported to find a fact that
elevated the offense to aggravated intimidation, the Sixth Amendment
would most certainly be violated, even if the defendant received a
sentence that fell within both ranges. See also La. Rev. Stat. Ann.
§§14:51, 14:52 (West 2007) (sentencing range for simple arson is 2 to 15
years; sentencing range for aggravated arson is 6 to 20 years); Mont.
Code Ann. §§45–5–302(2), 5–303(2) (2011) (sentencing range for kid-
napping is 2 to 10 years, but 2 to life for aggravated kidnapping).
5 The force of stare decisis is at its nadir in cases concerning proce-
dural rules that implicate fundamental constitutional protections.
Because Harris is irreconcilable with the reasoning of Apprendi and the
original meaning of the Sixth Amendment, we follow the latter.
16 ALLEYNE v. UNITED STATES
Opinion of THOMAS, J.
Opinion of the Court
Amendment even if it is informed by judge-found facts”
(emphasis deleted and internal quotation marks omitted));
Apprendi, 530 U. S., at 481 (“[N]othing 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 judg-
ment within the range prescribed by statute”).6 This
position has firm historical roots as well. As Bishop
explained:
“[W]ithin the limits of any discretion as to the pun-
ishment which the law may have allowed, the judge,
when he pronounces sentence, may suffer his discre-
tion to be influenced by matter shown in aggravation
or mitigation, not covered by the allegations of the in-
dictment.” Bishop §85, at 54.
“[E]stablishing what punishment is available by law and
setting a specific punishment within the bounds that the
law has prescribed are two different things.” Apprendi,
supra, at 519 (THOMAS, J., concurring). Our decision
today is wholly consistent with the broad discretion of
judges to select a sentence within the range authorized by
law.
IV
Here, the sentencing range supported by the jury’s
verdict was five years’ imprisonment to life. The District
——————
6 See also United States v. Tucker, 404 U.S. 443, 446 (1972) (judges
may exercise 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”); Williams v. New
York, 337 U.S. 241, 246 (1949) (“[B]oth before and since the American
colonies became a nation, courts in this country and in England prac-
ticed a policy under which a sentencing judge could exercise a wide
discretion in the sources and types of evidence used to assist him in
determining the kind and extent of punishment to be imposed within
limits fixed by law”).
Cite as: 570 U. S. ____ (2013) 17
Opinion of THOMAS, J.
Opinion of the Court
Court imposed the 7-year mandatory minimum sentence
based on its finding by a preponderance of evidence that
the firearm was “brandished.” Because the finding of
brandishing increased the penalty to which the defendant
was subjected, it was an element, which had to be found
by the jury beyond a reasonable doubt. The judge, rather
than the jury, found brandishing, thus violating petition-
er’s Sixth Amendment rights.
Accordingly, we vacate the Fourth Circuit’s judgment
with respect to Alleyne’s sentence on the §924(c)(1)(A)
conviction and remand the case for resentencing con-
sistent with the jury’s verdict.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9335
_________________
ALLEN RYAN ALLEYNE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE KAGAN join, concurring.
I join the opinion of the Court, which persuasively ex-
plains why Harris v. United States, 536 U.S. 545 (2002),
and McMillan v. Pennsylvania, 477 U.S. 79 (1986), were
wrongly decided. Under the reasoning of our decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and the
original meaning of the Sixth Amendment, facts that
increase the statutory minimum sentence (no less than
facts that increase the statutory maximum sentence) are
elements of the offense that must be found by a jury and
proved beyond a reasonable doubt. Ante, at 1.
Of course, under our doctrine of stare decisis, establish-
ing that a decision was wrong does not, without more,
justify overruling it. While stare decisis is not an “inexo-
rable command,” Hohn v. United States, 524 U.S. 236, 251
(1998) (internal quotation marks omitted), it is “a basic
self-governing principle within the Judicial Branch, which
is entrusted with the sensitive and difficult task of fash-
ioning and preserving a jurisprudential system that is not
based upon ‘an arbitrary discretion,’ ” Patterson v. McLean
Credit Union, 491 U.S. 164, 172 (1989) (quoting The
Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamil-
ton)). We generally adhere to our prior decisions, even if
we question their soundness, because doing so “promotes
2 ALLEYNE v. UNITED STATES
SOTOMAYOR, J., concurring
the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). To protect these important values, we require a
“ ‘ “special justification” ’ ” when departing from precedent.
Dickerson v. United States, 530 U.S. 428, 443 (2000).
A special justification is present here. As an initial
matter, when procedural rules are at issue that do not
govern primary conduct and do not implicate the reliance
interests of private parties, the force of stare decisis is
reduced. See United States v. Gaudin, 515 U.S. 506, 521
(1995); Payne, 501 U. S., at 828. And any reliance interest
that the Federal Government and state governments
might have is particularly minimal here because prosecu-
tors are perfectly able to “charge facts upon which a man-
datory minimum sentence is based in the indictment and
prove them to a jury.” Harris, 536 U. S., at 581 (THOMAS,
J., dissenting). Indeed, even with Harris in place, prose-
cutors already sometimes charge such facts and seek to
prove them to a jury. See Brief for National Association of
Criminal Defense Lawyers et al. as Amici Curiae 26. That
is precisely what happened here, where the verdict form
allowed the jury to find whether petitioner had brandished
a firearm yet the jury declined to make such a finding.
Ante, at 2.
In this context, stare decisis does not compel adherence
to a decision whose “underpinnings” have been “eroded” by
subsequent developments of constitutional law. Gaudin,
515 U. S., at 521. In rejecting a constitutional challenge to
a state statute that increased a defendant’s minimum
sentence based on judicial factfinding, McMillan relied on
a distinction between “elements” and “sentencing factors.”
477 U. S., at 86. That distinction was undermined by
Apprendi, where we held that a legislature may not “re-
move from the jury the assessment of facts that increase
Cite as: 570 U. S. ____ (2013) 3
SOTOMAYOR, J., concurring
the prescribed range of penalties to which a criminal
defendant is exposed.” 530 U. S., at 490 (internal quota-
tion marks omitted).
In Harris, we squarely confronted the question whether
“McMillan stands after Apprendi.” 536 U. S., at 550. Five
Members of the Court recognized that the cases were in
fact incompatible. See id., at 569 (BREYER, J., concurring
in part and concurring in judgment); id., at 572, 583
(THOMAS, J., dissenting) (“[O]nly a minority of the Court
embrac[es] the distinction between McMillan and Apprendi
that forms the basis of today’s holding”). In the control-
ling opinion, JUSTICE BREYER nevertheless declined to
apply Apprendi to mandatory minimums because, though
he found no way to distinguish sentencing floors from
sentencing ceilings, he could not “yet accept” Apprendi
itself. 536 U. S., at 569; see also post, at 1 (BREYER, J.,
concurring in part and concurring in judgment).
We have said that a decision may be “of questionable
precedential value” when “a majority of the Court expressly
disagreed with the rationale of [a] plurality.” Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 66 (1996). And
Harris has stood on especially weak ground because its
vitality depended upon the possibility that the Court
might retreat from Apprendi. See Harris, 536 U. S., at
569–570 (opinion of BREYER, J.). That has not happened.
Instead, while individual Members of this Court have
continued to question Apprendi, see post, at 1–2 (opinion
of BREYER, J.); post, at 1–2 (ALITO, J., dissenting), its rule
has become even more firmly rooted in the Court’s Sixth
Amendment jurisprudence in the decade since Harris. We
have applied Apprendi to strike down mandatory sentenc-
ing systems at the state and federal levels. See Cunning-
ham v. California, 549 U.S. 270 (2007); United States v.
Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542
U.S. 296 (2004). And just last Term, we recognized that
Apprendi’s reasoning extends to criminal fines. See
4 ALLEYNE v. UNITED STATES
SOTOMAYOR, J., concurring
Southern Union Co. v. United States, 567 U. S. ___ (2012).
As a result of these decisions, Harris has become even
more of an outlier. For that reason, I agree that it is
appropriate for the Court to “overrule Harris and to apply
Apprendi’s basic jury-determination rule to mandatory
minimum sentences” in order to “erase th[is] anomaly” in
our case law. Post, at 2–3 (opinion of BREYER, J.). I do not
suggest that every single factor that supports the overrul-
ing of precedent is present here. Post, at 3, n. * (ALITO, J.,
dissenting). But particularly in a case where the reliance
interests are so minimal, and the reliance interests of
private parties are nonexistent, stare decisis cannot excuse
a refusal to bring “coherence and consistency,” Patterson,
491 U. S., at 174, to our Sixth Amendment law.
If any doubt remained, our decision in Ring v. Arizona,
536 U.S. 584 (2002), should remove it. Ring considered
an Apprendi challenge to Arizona’s capital sentencing
system. There, as here, the government urged us to ad-
here to a pre-Apprendi decision upholding that scheme.
See Walton v. Arizona, 497 U.S. 639 (1990). And there, as
here, we resisted that plea. Ring, 536 U. S., at 609. This
case differs in only one respect: Our post-Apprendi consid-
eration of the issue in Harris. But for the reasons given,
Harris in no way strengthens the force of stare decisis in
this case. With Apprendi now firmly rooted in our juris-
prudence, the Court simply gives effect to what five Mem-
bers of the Court recognized in Harris: “[McMillan] and
Apprendi are irreconcilable; our Sixth Amendment juris-
prudence cannot be home to both.” 536 U. S., at 609.
JUSTICE ALITO is therefore mistaken when he suggests
that the Court overrules Harris because “there are cur-
rently five Justices willing to vote to” do so. Post, at 3, n.
*. No doubt, it would be illegitimate to overrule a prece-
dent simply because the Court’s current membership
disagrees with it. But that is not a plausible account of
the decision today. The Court overrules McMillan and
Cite as: 570 U. S. ____ (2013) 5
SOTOMAYOR, J., concurring
Harris because the reasoning of those decisions has been
thoroughly undermined by intervening decisions and
because no significant reliance interests are at stake that
might justify adhering to their result. Likewise, JUSTICE
ALITO exaggerates when he suggests that this case creates
an important “precedent about precedent.” Post, at 2.
Rarely will a claim for stare decisis be as weak as it is
here, where a constitutional rule of criminal procedure is
at issue that a majority of the Court has previously recog-
nized is incompatible with our broader jurisprudence.
And finally, JUSTICE ALITO’s contention that Apprendi and
Harris stand on equal footing for stare decisis purposes,
post, at 1–2, 3–4, n. *, is simply inconsistent with our last
decade of Sixth Amendment jurisprudence.
Because I believe that the Court’s decision to apply
Apprendi to mandatory minimums is consistent with stare
decisis principles, I join the opinion of the Court.
Cite as: 570 U. S. ____ (2013) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9335
_________________
ALLEN RYAN ALLEYNE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2013]
JUSTICE BREYER, concurring in part and concurring in
the judgment.
Eleven years ago, in Harris v. United States, 536 U.S.
545 (2002), I wrote that “I cannot easily distinguish Ap-
prendi v. New Jersey, 530 U.S. 466 (2000), from this case
in terms of logic.” Id., at 569 (opinion concurring in part
and concurring in judgment). I nonetheless accepted
Harris’ holding because I could “[n]ot yet accept [Ap-
prendi’s] rule.” 536 U. S., at 569. I continue to disagree
with Apprendi. See 536 U. S., at 569–570; United States v.
Booker, 543 U.S. 220, 326 (2005) (opinion dissenting in
part); Blakely v. Washington, 542 U.S. 296, 328 (2004)
(dissenting opinion); Apprendi, supra, at 555 (same). But
Apprendi has now defined the relevant legal regime for an
additional decade. And, in my view, the law should no
longer tolerate the anomaly that the Apprendi/Harris
distinction creates.
The Court’s basic error in Apprendi, I believe, was its
failure to recognize the law’s traditional distinction be-
tween elements of a crime (facts constituting the crime,
typically for the jury to determine) and sentencing facts
(facts affecting the sentence, often concerning, e.g., the
manner in which the offender committed the crime, and
typically for the judge to determine). The early historical
references that this Court’s opinions have set forth in
2 ALLEYNE v. UNITED STATES
Opinion of BREYER, J.
favor of Apprendi refer to offense elements, not to sentenc-
ing facts. Thus, when Justice Story wrote that the Sixth
Amendment’s guarantee of trial by jury offered “ ‘securit[y]
against the prejudices of judges,’ ” post, at 4 (ROBERTS,
C. J., dissenting) (quoting Commentaries on the Consti-
tution of the United States §924, p. 657 (Abr. 1833)), he
was likely referring to elements of a crime; and the best
answer to JUSTICE SCALIA’s implicit question in Apprendi—
what, exactly, does the “right to trial by jury” guaran-
tee?—is that it guarantees a jury’s determination of facts
that constitute the elements of a crime. 530 U. S., at 498–
499 (concurring opinion).
Although I have set forth these minority views be-
fore, see Booker, supra, at 326 (opinion dissenting in part);
Blakely, supra, at 328 (dissenting opinion); Apprendi, su-
pra, at 555 (same), I repeat this point now to make clear
why I cannot accept the dissent’s characterization of the
Sixth Amendment as simply seeking to prevent “judicial
overreaching” when sentencing facts are at issue, post,
at 4. At the very least, the Amendment seeks to protect
defendants against “the wishes and opinions of the gov-
ernment” as well. Ibid. (quoting Story, supra, §924, at
657). And, that being so, it seems to me highly anomalous
to read Apprendi as insisting that juries find sentencing
facts that permit a judge to impose a higher sentence
while not insisting that juries find sentencing facts that
require a judge to impose a higher sentence. See Harris,
supra, at 569–570 (opinion of BREYER, J.).
To overrule Harris and to apply Apprendi’s basic jury-
determination rule to mandatory minimum sentences
would erase that anomaly. Where a maximum sentence is
at issue, Apprendi means that a judge who wishes to im-
pose a higher sentence cannot do so unless a jury finds the
requisite statutory factual predicate. Where a manda-
tory minimum sentence is at issue, application of Apprendi
Cite as: 570 U. S. ____ (2013) 3
Opinion of BREYER, J.
would mean that the government cannot force a judge who
does not wish to impose a higher sentence to do so unless
a jury finds the requisite statutory factual predicate. In
both instances the matter concerns higher sentences; in
both instances factfinding must trigger the increase; in both
instances jury-based factfinding would act as a check: in
the first instance, against a sentencing judge wrongly
imposing the higher sentence that the judge believes is
appropriate, and in the second instance, against a sentenc-
ing judge wrongly being required to impose the higher
sentence that the judge believes is inappropriate.
While Harris has been the law for 11 years, Apprendi
has been the law for even longer; and I think the time has
come to end this anomaly in Apprendi’s application. Con-
sequently, I vote to overrule Harris. I join Parts I, III–B,
III–C, and IV of the Court’s opinion and concur in its
judgment.
Cite as: 570 U. S. ____ (2013) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9335
_________________
ALLEN RYAN ALLEYNE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2013]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and
JUSTICE KENNEDY join, dissenting.
Suppose a jury convicts a defendant of a crime carrying
a sentence of five to ten years. And suppose the judge says
he would sentence the defendant to five years, but because
he finds that the defendant used a gun during the crime,
he is going to add two years and sentence him to seven.
No one thinks that this violates the defendant’s right to
a jury trial in any way.
Now suppose the legislature says that two years should
be added to the five year minimum, if the judge finds that
the defendant used a gun during the crime. Such a provi-
sion affects the role of the judge—limiting his discretion—
but has no effect on the role of the jury. And because it
does not affect the jury’s role, it does not violate the jury
trial guarantee of the Sixth Amendment.
The Framers envisioned the Sixth Amendment as a pro-
tection for defendants from the power of the Government.
The Court transforms it into a protection for judges from
the power of the legislature. For that reason, I respect-
fully dissent.
I
In a steady stream of cases decided over the last 15
years, this Court has sought to identify the historical
2 ALLEYNE v. UNITED STATES
ROBERTS, C. J., dissenting
understanding of the Sixth Amendment jury trial right
and determine how that understanding applies to modern
sentencing practice. Our key sources in this task have
been 19th-century treatises and common law cases identi-
fying which facts qualified as “elements” of a crime, and
therefore had to be alleged in the indictment and proved to
a jury beyond a reasonable doubt. See, e.g., Apprendi v.
New Jersey, 530 U.S. 466, 476–483, 489–490, n. 15 (2000)
(collecting sources); id., at 501–518 (THOMAS, J., concur-
ring) (same). With remarkable uniformity, those author-
ities provided that an element was “whatever is in law
essential to the punishment sought to be inflicted.” 1 J.
Bishop, Criminal Procedure 50 (2d ed. 1872); see also
Apprendi, supra, at 489, n. 15 (“ ‘[T]he indictment must
contain an allegation of every fact which is legally essen-
tial to the punishment to be inflicted’ ” (quoting United
States v. Reese, 92 U.S. 214, 232 (1876) (Clifford, J., dis-
senting))); 1 Bishop, supra, §87, at 55 (an indictment must
include “any particular fact which the law makes essential
to the punishment”).
Judging that this common law rule best reflects what
the Framers understood the Sixth Amendment jury right
to protect, we have struck down sentencing schemes that
were inconsistent with the rule. In Apprendi, for example,
the defendant pleaded guilty to a crime that carried a
maximum sentence of ten years. After his plea, however,
the trial judge determined that the defendant had commit-
ted the crime with a biased purpose. Under a New Jersey
law, that finding allowed the judge to impose up to ten
additional years in prison. Exercising that authority, the
judge sentenced the defendant to 12 years. 530 U. S., at
469–471.
Because the sentence was two years longer than would
have been possible without the finding of bias, that find-
ing was “essential to the punishment” imposed. 1 Bishop,
supra, at 50; see Apprendi, 530 U. S., at 491–492. Thus,
Cite as: 570 U. S. ____ (2013) 3
ROBERTS, C. J., dissenting
in line with the common law rule, we held the New Jersey
procedure unconstitutional. Id., at 497.
Subsequent cases have worked out how this principle
applies in other contexts, such as capital sentencing re-
gimes, state and federal sentencing guidelines, or criminal
fines. See Ring v. Arizona, 536 U.S. 584 (2002); Blakely v.
Washington, 542 U.S. 296 (2004); United States v. Booker,
543 U.S. 220 (2005); Southern Union Co. v. United
States, 567 U. S. ___ (2012). Through all of them, we have
adhered to the rule, rooted in the common law under-
standing described above, that we laid down in Apprendi:
“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; see
Blakely, supra, at 301 (quoting above statement); Booker,
supra, at 231 (same); Southern Union Co., supra, at ___
(slip op., at 3) (same); see also Ring, supra, at 588–589
(Sixth Amendment “does not permit a defendant to be
‘expose[d] . . . to a penalty exceeding the maximum he
would receive if punished according to the facts reflected
in the jury verdict alone’ ” (quoting Apprendi, supra, at
483; alterations in original).
We have embraced this 19th-century common law rule
based not only on a judgment that it reflects the under-
standing in place when the Sixth Amendment was rati-
fied, but also on the “need to give intelligible content to the
right of jury trial.” Blakely, supra, at 305. As JUSTICE
SCALIA wrote in Apprendi, it is unclear “what the right to
trial by jury does guarantee if . . . it does not guarantee . . .
the right to have a jury determine those facts that deter-
mine the maximum sentence the law allows.” 530 U. S., at
498–499 (concurring opinion).
After all, if a judge’s factfinding could authorize a sen-
tence beyond that allowed by the jury’s verdict alone, the
jury trial would be “a mere preliminary to a judicial inqui-
4 ALLEYNE v. UNITED STATES
ROBERTS, C. J., dissenting
sition into the facts of the crime the State actually seeks to
punish.” Blakely, supra, at 306–307. The Framers clearly
envisioned a more robust role for the jury. They appreci-
ated the danger inherent in allowing “justices . . . named
by the crown” to “imprison, dispatch, or exile any man that
was obnoxious to the government, by an instant declara-
tion, that such is their will and pleasure.” 4 W. Black-
stone, Commentaries on the Laws of England 343 (1769).
To guard against this “violence and partiality of judges
appointed by the crown,” the common law “wisely placed
th[e] strong . . . barrier, of . . . trial by jury, between the
liberties of the people, and the prerogative of the crown.”
Ibid. The Sixth Amendment therefore provided for trial
by jury as a “double security, against the prejudices of
judges, who may partake of the wishes and opinions of the
government, and against the passions of the multitude,
who may demand their victim with a clamorous precipi-
tancy.” J. Story, Commentaries on the Constitution of the
United States §924, p. 657 (Abr. 1833); see also The Fed-
eralist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton)
(discussing criminal jury trial as a protection against
“judicial despotism”). Our holdings that a judge may not
sentence a defendant to more than the jury has authorized
properly preserve the jury right as a guard against judicial
overreaching.
II
There is no such risk of judicial overreaching here.
Under 18 U.S. C. §924(c)(1)(A)(i), the jury’s verdict fully
authorized the judge to impose a sentence of anywhere
from five years to life in prison. No additional finding of
fact was “essential” to any punishment within the range.
After rendering the verdict, the jury’s role was completed,
it was discharged, and the judge began the process of
determining where within that range to set Alleyne’s
sentence.
Cite as: 570 U. S. ____ (2013) 5
ROBERTS, C. J., dissenting
Everyone agrees that in making that determination, the
judge was free to consider any relevant facts about the of-
fense and offender, including facts not found by the jury
beyond a reasonable doubt.
“[B]oth before and since the American colonies became
a nation, courts . . . practiced a policy under which a
sentencing judge could exercise a wide discretion in the
sources and types of evidence used to assist him in
determining the kind and extent of punishment to be
imposed within limits fixed by law.” Williams v. New
York, 337 U.S. 241, 246 (1949).
As Apprendi itself recognized, “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 judg-
ment within the range prescribed by statute.” 530 U. S.,
at 481 (emphasis deleted); see also Dillon v. United States,
560 U.S. __, __ (2010) (slip op., at 11). And the majority
does not dispute the point. Ante, at 15 (“Our ruling today
does not mean that any fact that influences judicial discre-
tion must be found by a jury.”). Thus, under the majority’s
rule, in the absence of a statutory mandatory minimum,
there would have been no constitutional problem had the
judge, exercising the discretion given him by the jury’s
verdict, decided that seven years in prison was the appro-
priate penalty for the crime because of his finding that the
firearm had been brandished during the offense.
In my view, that is enough to resolve this case. The
jury’s verdict authorized the judge to impose the precise
sentence he imposed for the precise factual reason he
imposed it. As we have recognized twice before, the Sixth
Amendment demands nothing more. See Harris v. United
States, 536 U.S. 545, 568–569 (2002); McMillan v. Penn-
sylvania, 477 U.S. 79, 93 (1986).
6 ALLEYNE v. UNITED STATES
ROBERTS, C. J., dissenting
III
This approach is entirely consistent with Apprendi. As
I have explained, Apprendi’s constraint on the normal
legislative control of criminal procedure draws its legiti-
macy from two primary principles: (1) common law under-
standings of the “elements” of a crime, and (2) the need to
preserve the jury as a “strong barrier” between defendants
and the State. Neither of those principles supports the
rule the majority adopts today.
First, there is no body of historical evidence supporting
today’s new rule. The majority does not identify a single
case holding that a fact affecting only the sentencing floor
qualified as an element or had to be found by a jury, nor
does it point to any treatise language to that effect. Ante,
at 8–10. To be sure, the relatively recent vintage of man-
datory minimum sentencing enhancements means that
few, if any, 19th-century courts would have encountered
such a fact pattern. So I do not mean to suggest that
the absence of historical condemnation of the practice con-
clusively establishes its constitutionality today. But given
that Apprendi’s rule rests heavily on affirmative historical
evidence about the practices to which we have previously
applied it, the lack of such evidence on statutory mini-
mums is a good reason not to extend it here.
Nor does the majority’s extension of Apprendi do any-
thing to preserve the role of the jury as a safeguard be-
tween the defendant and the State. That is because even
if a jury does not find that the firearm was brandished,
a judge can do so and impose a harsher sentence because
of his finding, so long as that sentence remains under the
statutory maximum. The question here is about the power
of judges, not juries. Under the rule in place until today,
a legislature could tell judges that certain facts carried
certain weight, and require the judge to devise a sentence
based on that weight—so long as the sentence remained
within the range authorized by the jury. Now, in the
Cite as: 570 U. S. ____ (2013) 7
ROBERTS, C. J., dissenting
name of the jury right that formed a barrier between the
defendant and the State, the majority has erected a bar-
rier between judges and legislatures, establishing that
discretionary sentencing is the domain of judges. Legisla-
tures must keep their respectful distance.
I find this new rule impossible to square with the histor-
ical understanding of the jury right as a defense from
judges, not a defense of judges. See Apprendi, supra, at
498 (SCALIA, J., concurring) (“Judges, it is sometimes
necessary to remind ourselves, are part of the State”).
Just as the Sixth Amendment “limits judicial power only
to the extent that the claimed judicial power infringes on
the province of the jury,” Blakely, 542 U. S., at 308, so too
it limits legislative power only to the extent that power
infringes on the province of the jury. Because the claimed
infringement here is on the province of the judge, not the
jury, the jury right has no work to do.
IV
The majority offers several arguments to the contrary. I
do not find them persuasive.
First, the majority asserts that “because the legally
prescribed range is the penalty affixed to the crime, it
follows that a fact increasing either end of the range pro-
duces a new penalty and constitutes an ingredient of the
offense.” Ante, at 11 (citation omitted). The syllogism
trips out of the gate, for its first premise—that the consti-
tutionally relevant “penalty” includes the bottom end of
the statutory range—simply assumes the answer to the
question presented. Neither of the historical sources to
which the majority points gives an answer: The Bishop
treatise speaks only to situations in which “a statute
prescribes a particular punishment,” not a range of possi-
ble punishments. 1 Bishop, Criminal Procedure §598, at
360–361. The Wharton treatise is similarly unhelpful,
focusing on statutes that change the maximum or alter the
8 ALLEYNE v. UNITED STATES
ROBERTS, C. J., dissenting
nature of the common law crime. See 1 F. Wharton, Crim-
inal Law §371, p. 291 (rev. 7th ed. 1874). The sources
provided in the Apprendi concurrence offer no support, for
as already discussed, we lack historical evidence about the
treatment of facts that altered only the floor of a sentenc-
ing range.
Second, the majority observes that “criminal statutes
have long specified both the floor and ceiling of sentence
ranges, which is evidence that both define the legally
prescribed penalty.” Ante, at 11. Again, though, this
simply assumes the core premise: That the constitution-
ally relevant “penalty” involves both the statutory minimum
and the maximum. Unless one accepts that premise on
faith, the fact that statutes have long specified both floor
and ceiling is evidence of nothing more than that stat-
utes have long specified both the floor and the ceiling. Nor
does it help to say that “the floor of a mandatory range is
as relevant to wrongdoers as the ceiling.” Ante, at 12. The
meaning of the Sixth Amendment does not turn on what
wrongdoers care about most.
More importantly, legal rules frequently focus on the
maximum sentence while ignoring the minimum, even
though both are “relevant” to punishment. Closest to this
case, the question whether the jury right applies at all
turns on whether the maximum sentence exceeds six
months—not, say, whether the minimum punishment
involves time in prison. Blanton v. North Las Vegas, 489
U.S. 538, 543 (1989); see also Lewis v. United States, 518
U.S. 322, 326 (1996) (“In evaluating the seriousness of the
offense, we place primary emphasis on the maximum
prison term authorized”). Likewise, the rights to vote and
to bear arms are typically denied to felons—that is, those
convicted of a crime with a maximum sentence of more
than one year in prison. See Richardson v. Ramirez, 418
U.S. 24, 48 (1974); District of Columbia v. Heller, 554
U.S. 570, 626 (2008); Black’s Law Dictionary 694 (9th ed.
Cite as: 570 U. S. ____ (2013) 9
ROBERTS, C. J., dissenting
2009). Examples of other distinctions turning only on max-
imum penalties abound, as in cases of recidivism en-
hancements that apply only to prior convictions with a
maximum sentence of more than a specified number of
years. See, e.g., 18 U.S. C. §924(e)(2). That a minimum
sentence is “relevant” to punishment, and that a statute
defines it, does not mean it must be treated the same as
the maximum sentence the law allows.
Third, the majority offers that “it is impossible to dis-
pute that facts increasing the legally prescribed floor
aggravate the punishment.” Ante, at 12. This argument
proves too much, for it would apply with equal force to any
fact which leads the judge, in the exercise of his own dis-
cretion, to choose a penalty higher than he otherwise
would have chosen. The majority nowhere explains what
it is about the jury right that bars a determination by
Congress that brandishing (or any other fact) makes an
offense worth two extra years, but not an identical deter-
mination by a judge. Simply calling one “aggravation” and
the other “discretion” does not do the trick.
Fourth, the majority argues that “[i]t is no answer to say
that the defendant could have received the same sentence
with or without” a particular factual finding, pointing out
“that a defendant could not be convicted and sentenced for
assault, if the jury only finds the facts for larceny, even if
the punishments prescribed for each crime are identical.”
Ante, at 14. In that hypothetical case, the legislature has
chosen to define two crimes with two different sets of
elements. Courts must, of course, respect that legislative
judgment. But that tells us nothing about when courts
can override the legislature’s decision not to create sepa-
rate crimes, and instead to treat a particular fact as a
trigger for a minimum sentence within the already-
authorized range.
10 ALLEYNE v. UNITED STATES
ROBERTS, C. J., dissenting
* * *
I will not quibble with the majority’s application of our
stare decisis precedents. But because I believe the major-
ity’s new rule—safeguarding the power of judges, not
juries—finds no support in the history or purpose of the
Sixth Amendment, I respectfully dissent.
Cite as: 570 U. S. ____ (2013) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9335
_________________
ALLEN RYAN ALLEYNE, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 17, 2013]
JUSTICE ALITO, dissenting.
The Court overrules a well-entrenched precedent with
barely a mention of stare decisis. See ante, at 16, n. 6.
Stare decisis is, of course, not an “inexorable command”
in the field of constitutional law. Payne v. Tennessee, 501
U.S. 808, 828 (1991). Nevertheless, the Court ought to be
consistent in its willingness to reconsider precedent. If
Harris v. United States, 536 U.S. 545 (2002), and McMil-
lan v. Pennsylvania, 477 U.S. 79 (1986), can be cast aside
simply because a majority of this Court now disagrees
with them, that same approach may properly be followed
in future cases. See Arizona v. Gant, 556 U.S. 332, 358–
364 (2009) (ALITO, J., dissenting).
If the Court is of a mind to reconsider existing prece-
dent, a prime candidate should be Apprendi v. New Jersey,
530 U.S. 466 (2000). Although Apprendi purported to rely
on the original understanding of the jury trial right, there
are strong reasons to question the Court’s analysis on that
point. See, e.g., Bibas, Judicial Fact-Finding and Sentence
Enhancements in a World of Guilty Pleas, 110 Yale L. J.
1097, 1123–1132 (2001) (critiquing the historical evidence
relied upon by the Apprendi majority and concurrence,
and concluding (1) that the “broad judicial discretion”
characteristic of eighteenth-century common-law misde-
meanor sentencing “undercuts the suggestion that sen-
2 ALLEYNE v. UNITED STATES
ALITO, J., dissenting
tencing was the sacred province of juries alone,” (2) that
even the “nineteenth-century tradition was not uniform,
suggesting that the common law had no fixed rule on the
subject,” and (3) that “no eighteenth-century evidence
link[ed] this [nineteenth-century] tradition back to the time
of the Founding”); Little & Chen, The Lost History of
Apprendi and the Blakely Petition for Rehearing, 17 Fed.
Sentencing Rep. 69, 69–74 (2004) (“Blakely and Apprendi
were undoubtedly founded on an erroneous historical un-
derstanding of the Framers’ views in 1790 when they
wrote the 6th Amendment’s jury-trial guarantee. The fact
that the Framers themselves wrote over a dozen indeter-
minate sentencing ranges in the first federal crime bill (see
1 Stat. 112–118 . . .), has simply been overlooked by the
Court”); Mitchell, Apprendi’s Domain, 2006 Sup. Ct. Rev.
297, 298–299 (2006) (arguing, in the context of defending
a broader conception of the jury right, that “Apprendi’s
historical claim that sentencing enhancements were treated
as ‘elements’ of offenses whenever they increased a de-
fendant’s maximum punishment is demonstrably mis-
taken” and that “the platitudes from Joel Prentiss Bishop’s
nineteenth-century treatises, which the pro-Apprendi
Justices repeatedly invoke to support this assertion [that
sentencing enhancements that increased a maximum pun-
ishment were treated as elements of the offense], are pat-
ently false and did not accurately describe the law in
actual court decisions of that era” (footnotes omitted)).
The Court’s decision creates a precedent about prece-
dent that may have greater precedential effect than the
dubious decisions on which it relies.*
——————
* Speaking for herself, JUSTICE GINSBURG, and JUSTICE KAGAN—but
not for the Court—JUSTICE SOTOMAYOR argues that Harris’ stare decisis
value is undermined by the subsequent reasoning of the Court’s Ap-
prendi line of cases and by the fact that no one rationale in Harris
commanded five votes. I disagree.
In my view, Harris’ force is not vitiated by the Court’s Apprendi line
Cite as: 570 U. S. ____ (2013) 3
ALITO, J., dissenting
——————
of cases, for two reasons. First, that line of cases is predicated on a
purported Sixth Amendment requirement that juries find facts that
increase maximum penalties, not mandatory minimums. Accordingly,
as THE CHIEF JUSTICE’s dissent persuasively explains, ante, at 1–7,
Apprendi and its progeny have no impact on the distinct question
resolved by Harris, which does not bear on the jury right. Second, the
Apprendi line is now too intellectually incoherent to undermine any
“contrary” precedents. If the rationale of Apprendi—which, as broadly
construed by the Court in this case, is that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt,” ante, at 1—were
taken seriously, discretionary sentencing, as prescribed by 18 U.S. C.
§3553(a), should also be held to violate the Sixth Amendment. But a
majority of the Court has not been willing to go where its reasoning
leads.
Nor can it be correct to say that “Harris in no way strengthens the
force of stare decisis in this case” because a “ ‘majority of the Court
expressly disagreed with the rationale of [a] plurality.’ ” Ante, at 3–4
(SOTOMAYOR, J., concurring) (quoting Seminole Tribe of Fla. v. Florida,
517 U.S. 44, 66 (1996)). Decisions in which no one rationale commands
a majority of the Court—including prominent decisions based on the
views of a single Justice—are often thought to have precedential effect.
See, e.g., United States v. Booker, 543 U.S. 220 (2005); Regents of Univ.
of Cal. v. Bakke, 438 U.S. 265, 269–272 (1978) (opinion of Powell, J.).
And, of course, if Harris is not entitled to stare decisis weight, then
neither is the Court’s opinion in this case. After all, only four Members
of the Court think that the Court’s holding is the correct reading of
the Constitution. See ante, at 1–3 (BREYER, J., concurring in part and
concurring in judgment).
As she concedes, ante, at 4, JUSTICE SOTOMAYOR’s concurrence is nec-
essarily selective in its discussion of the factors that the Court has
previously found to be relevant to the application of stare decisis. For
example, she does not argue—presumably because there is no good
argument to be made—that Harris and McMillan v. Pennsylvania, 477
U.S. 79 (1986) (which provide the framework under which criminal
prosecutions have been carried out for at least the past 27 years) have
proved “ ‘unworkable.’ ” Vieth v. Jubelirer, 541 U.S. 267, 306 (2004)
(plurality opinion) (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)). Nor does she contend that “circumstances” outside the Court
“have changed so radically as to undermine [Harris’] critical factual
assumptions.” Randall v. Sorrell, 548 U.S. 230, 244 (2006) (plurality
opinion). Indeed, no party or amicus has cited any such circumstances.
In short, other than the fact that there are currently five Justices
4 ALLEYNE v. UNITED STATES
ALITO, J., dissenting
——————
willing to vote to overrule Harris, and not five Justices willing to
overrule Apprendi, there is no compelling reason why the Court over-
rules the former rather than the latter. If the opportunity arises in the
future to overrule Apprendi or the present case—both of which presum-
ably involve “procedural rules . . . that do not govern primary conduct
and do not implicate the reliance interests of private parties,” ante, at 2
(SOTOMAYOR, J., concurring)—the precedent the Court sets today will be
relevant to the issue of stare decisis.