# Alleyne v. United States/Dissent Roberts

Cite as: Alleyne v. United States, 570 U.S. 99, 124 (2013) (Roberts, C.J., dissenting).
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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 provision 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 protection 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 respectfully dissent.

## I

In a steady stream of cases decided over the last 15 years, this Court has sought to identify the historical understand- [p125] ing 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 identifying 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., concurring) (same). With remarkable uniformity, those authorities 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 essential to the punishment to be inflicted’” (quoting United States v. Reese, 92 U.S. 214, 232 (1876) (Clifford, J., dissenting))); 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 committed 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 finding was “essential to the punishment” imposed. 1 Bishop, supra, at 50; see Apprendi, 530 U.S., at 491–492. Thus, in line with the common law rule, we held the New Jersey procedure unconstitutional. Id., at 497, 120 S.Ct. 2348.
[p126] Subsequent cases have worked out how this principle applies in other contexts, such as capital sentencing regimes, 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. 343 (2012). Through all of them, we have adhered to the rule, rooted in the common law understanding 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 348 (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 understanding in place when the Sixth Amendment was ratified, 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 determine the maximum sentence the law allows.” 530 U.S., at 498–499 (concurring opinion).
After all, if a judge's factfinding could authorize a sentence beyond that allowed by the jury's verdict alone, the jury trial would be “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, supra, at 306–307. The Framers clearly envisioned [p127] a more robust role for the jury. They appreciated 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 declaration, that such is their will and pleasure.” 4 W. Blackstone, 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 precipitancy.” J. Story, Commentaries on the Constitution of the United States § 924, p. 657 (Abr. 1833); see also The Federalist 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.
Everyone agrees that in making that determination, the judge was free to consider any relevant facts about the offense and offender, including facts not found by the jury beyond a reasonable doubt.
   [p128] “[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 judgment within the range prescribed by statute.” 530 U.S., at 481 (emphasis deleted); see also Dillon v. United States, 560 U.S. 817, 828–829 (2010). And the majority does not dispute the point. Ante, at 116 (“Our ruling today does not mean that any fact that influences judicial discretion 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 appropriate 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. Pennsylvania, 477 U.S. 79, 93 (1986).

## 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 legitimacy from two primary principles: (1) common law understandings of [p129] 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 109–111. To be sure, the relatively recent vintage of mandatory 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 conclusively 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 minimums is a good reason not to extend it here.
Nor does the majority's extension of Apprendi do anything to preserve the role of the jury as a safeguard between 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 name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance.
[p130] I find this new rule impossible to square with the historical 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 produces a new penalty and constitutes an ingredient of the offense.” Ante, at 112 (citation omitted). The syllogism trips out of the gate, for its first premise—that the constitutionally 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 possible 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 nature of the common law crime. See 1 F. Wharton, Criminal 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 sentencing range.
[p131] 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 112. Again, though, this simply assumes the core premise: That the constitutionally 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 statutes 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 113. 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. 2009). Examples of other distinctions turning only on maximum penalties abound, as in cases of recidivism enhancements 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.
[p132] Third, the majority offers that “it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment.” Ante, at 113. 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 discretion, 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 determination 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 115. 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 separate crimes, and instead to treat a particular fact as a trigger for a minimum sentence within the already-authorized range. *** I will not quibble with the majority's application of our stare decisis precedents. But because I believe the majority'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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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