Alleyne v. United States,
570 U.S. ___ (2013)

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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, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.



No. 11–9335



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 increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled.


     Petitioner Allen Ryan Alleyne and an accomplice devised 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) provides, 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 minimum 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 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 sentencing 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 brandishing, 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).


     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.


     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 constitutional status of a special sort of fact known as a “sentencing 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 introduction 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 constitutional 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] penalties,” 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 , n. 6 (1999), but did not resolve the issue until Apprendi. There, we identified 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 committed his crime with racial bias. 530 U. S., at 470. In defending 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 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 “element” 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.


     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 sentence 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 evidence, 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 unconstitutional under Apprendi, even though the judge’s finding 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 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. Because 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 authorized range.” Id., at 567. From this, the Court drew a distinction between “facts increasing the defendant’s minimum sentence and facts extending the sentence beyond the statutory maximum,” id., at 566. The Court limited Apprendi’s holding to instances where the factual finding increases the statutory maximum sentence.


     Alleyne contends that Harris was wrongly decided and that it cannot be reconciled with our reasoning in Apprendi. We agree.


     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, Apprendi’s definition of “elements” necessarily includes not only facts that increase the ceiling, but also those that increase 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.


     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.” Langbein, supra, at 36–37; see also 3 W. Blackstone, Commentaries 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 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 consisting of every fact which “is in law essential to the punishment sought to be inflicted,” 1 J. Bishop, Criminal Procedure 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”). Numerous high courts agreed that this formulation “accurately 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.


     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 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 because it is in conformity with long established practice, 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 contained 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 commentator explained:

“Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have 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 offence” 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.


     Consistent with common-law and early American practice, Apprendi 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 (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 increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the 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., dissenting). 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., concurring); see also Bishop §598, at 360–361 (if “a statute prescribes a particular punishment to be inflicted on those who commit it under special circumstances which it mentions, or with particular aggravations,” then those special circumstances must be specified in the indictment (emphasis 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 concurring in judgment) (facts increasing the minimum and facts increasing the maximum cannot be distinguished “in terms of logic”). Indeed, criminal statutes have long specified 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 historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed 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 increasing 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 prosecution is empowered, by invoking the mandatory minimum, 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 increased 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 ]

     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 defendants. 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 accuser”); 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 ]

     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 sentence 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 sentenced to 3 years because the trial court improperly instructed 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 sentenced within the range established by the prior law). [ 4 ] 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 ]


     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 discretion 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 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 judgment 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 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.” 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.


     Here, the sentencing range supported by the jury’s verdict was five years’ imprisonment to life. The District 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 petitioner’s Sixth Amendment rights.

     Accordingly, we vacate the Sixth Circuit’s judgment with respect to Alleyne’s sentence on the §924(c)(1)(A) conviction and remand the case for resentencing consistent with the jury’s verdict.

     It is so ordered.


1  In Almendarez-Torres v. United States, , 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.
2  Juries must find any facts that increase either the statutory maximum or minimum because the 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, . 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 does not govern that element of sentencing. Infra, at 15–17, and n. 6.
3  Apprendi rejected an argument similar to the one advanced in Harris. In Apprendi, the State of New Jersey argued that increasing the defendant’s statutory maximum on the challenged count did not violate the because “the judge could have imposed consecutive sentences,” in conjunction with other counts, to produce the sentence that the defendant actually received on the count at issue. 530 U. S., at 474. We found that this possibility did not preclude a violation. Ibid.
4  Many criminal statutes allow for this possibility. For example, an 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 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 kidnapping 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 procedural rules that implicate fundamental constitutional protections. Because Harris is irreconcilable with the reasoning of Apprendi and the original meaning of the , we follow the latter.
6  See also United States v. Tucker, (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, (“[B]oth before and since the American colonies became a nation, courts in this country and in England 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”).
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