# Alleyne v. United States/Concurrence Breyer

Cite as: Alleyne v. United States, 570 U.S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment).
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* Concurring Opinions Sotomayor Breyer
* Dissenting Opinions Roberts Alito
* Wikipedia article
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 Apprendi 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 [Apprendi's] rule.” Ibid. 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 v. New Jersey, 530 U.S. 466, 555 (2000) (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 between 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 The early historical references that this Court's opinions have set forth in favor of Apprendi refer to offense elements, not to sentencing facts.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 127 (ROBERTS, C.J., dissenting) (quoting [p123] Commentaries on the Constitution 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” guarantee?—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 before, see Booker, supra, at 326 (opinion dissenting in part); Blakely, supra, at 328 (dissenting opinion); Apprendi, supra, 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 127 (opinion of Roberts, C.J.). At the very least, the Amendment seeks to protect defendants against “the wishes and opinions of the government” 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 impose a higher sentence cannot do so unless a jury finds the requisite statutory factual predicate. Where a mandatory minimum sentence is at issue, application of 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. 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 [p124] a sentencing judge wrongly imposing the higher sentence that the judge believes is appropriate, and in the second instance, against a sentencing 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. Consequently, 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.

## 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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