1 (Slip Opinion) OCTOBER TERM, 2023

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

ERLINGER v . UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 23–370. Argued March 27, 2024—Decided June 21, 2024
Paul Erlinger pleaded guilty to being a felon in possession of a firearm

in violation of 18 U. S. C. §922(g). At sentencing, the judge found Mr. Erlinger eligible for an enhanced sentence under the Armed Career Criminal Act, §924(e)(1), which increases the penalty for a 922(g) con

viction from a maximum sentence of 10 years to a mandatory mini

mum sentence of 15 years when the defendant has three or more qual

ifying convictions for offenses committed on different occasions. Subsequently, the Seventh Circuit held in unrelated decisions that two of the offenses on which the gove rnment relied for Mr. Erlinger’s sen

tence enhancement no longer qualified as ACCA predicate offenses.The District Court vacated Mr. Erlinger’s sentence and scheduled resentencing. At the resentencing hearing, prosecutors again pursued an ACCA sentence enhancement based on a new set of 26-year-old con

victions for burglaries committed by Mr. Erlinger over the course of several days. Mr. Erlinger protested that the burglaries were part of a single criminal episode and did no t occur on separate occasions, as required by ACCA. Moreover, Mr. Er linger argued that the question whether he committed these prior bu rglaries during a single episode or on distinct occasions required an assessment of the facts surround

ing those offenses, and that the Fifth and Sixth Amendments required that a jury make that assessment. The District Court rejected Mr. Erlinger’s request for a jury and issued a 15-year enhanced sentence. On appeal, the government confessed error. Pointing to this Court’s recent decision in Wooden v. United States , 595 U. S. 360, which acknowledged that an ACCA “occasions inquiry” can be intensely fac

tual in nature, the government admi tted that given the factual nature of the inquiry and its impact on a defendant’s sentence, the Constitu

tion requires a jury to decide unanimously and beyond a reasonable2 ERLINGER v. UNITED STATES

Syllabus

doubt whether Mr. Erlinger’s prior offenses were committed on differ

ent occasions. This Court granted certiorari and appointed counsel to defend the judgment below. Held : The Fifth and Sixth Amendments require a unanimous jury to

make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA pur

poses. Pp. 5–26. (a) The Sixth Amendment promises that “[i]n all criminal prosecu

tions the accused” has “the right to a speedy and public trial, by an impartial jury.” Inherent in that guarantee is an assurance that any guilty verdict will issue only from a unanimous jury. Ramos v. Louisi

ana , 590 U. S. 83, 93. The Fifth Amendment further promises that the government may not deprive individu als of their liberty without “due process of law.” It safeguards fo r criminal defendants well-established common-law protections, including th e “ancient rule” that the govern

ment must prove to a jury every one of its charges beyond a reasonable doubt. Together, these Amendments place the jury at the heart of our criminal justice system and ensure a judge’s power to punish is derived wholly from, and remains always contro lled by, the jury and its verdict. Blakely v. Washington , 542 U. S. 296, 306.

The Court has repeatedly cautioned that trial and sentencing prac

tices must remain within the guardr ails provided by these two Amend

ments. Thus in Apprendi v. New Jersey , 530 U. S. 466, the Court held that a novel “sentencing enhancement” was unconstitutional because it violated the rule that only a ju ry may find “facts that increase the prescribed range of penalties to which a criminal defendant is ex

posed.” Id., at 490. This principle applies when a judge seeks to issue a sentence that exceeds the maximum penalty authorized by a jury’s findings as well as when a judge seeks to increase a defendant’s mini

mum punishment. See, e.g., Alleyne v. United States , 570 U. S. 99, 111–113. Pp. 5–10.

(b) The government concedes what all of this means for Mr. Erlinger. To trigger ACCA’s mandatory minimum, the government had to prove, among other things, that his three predicate convictions were “com

mitted on occasions different from on e another.” §924(e)(1). And as Wooden observed, deciding whether th ose past offenses occurred on three or more different occasions is a fact-laden task. As the govern

ment recognizes, virtually “any fact” that “increase[s] the prescribed range of penalties to which a crimina l defendant is exposed” must be resolved by a unanimous jury beyond a reasonable doubt (or freely ad

mitted in a guilty plea). Apprendi , 530 U. S., at 490. Here, the sen

tencing court made a factual findin g that Mr. Erlinger’s offenses oc

curred on at least three sepa rate occasions. And as in Apprendi and3 Cite as: 602 U. S. ____ (2024)

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Alleyne , that factual finding had the effect of increasing both the max

imum and minimum sentences Mr. Erlinger faced. Thus, Mr. Erlinger was entitled to have a jury re solve ACCA’s occasions inquiry unani

mously and beyond a reasonable doubt. This Court decides no more than that. Pp. 10–12. (c) Court-appointed amicus cannot avoid this conclusion. Pp. 12–22.

(1) Amicus relies on an exce ption announced in AlmendarezTorres v. United States , 523 U. S. 224, which he argues permits a judge to find certain facts related to a defendant’s past offenses, including whether he committed them on differe nt occasions. That decision is an outlier. And the Court has described it as “at best an exceptional departure” from hi storic practice. Apprendi , 530 U. S., at 487. It per

sists as a “narrow exception” permitting judges to find only “the fact of a prior conviction.” Alleyne , 570 U. S., at 111, n. 1. Pp. 13–15. (2) Amicus responds that if Almendarez-Torres permits a judge to find the fact of a conviction, that necessarily implies that a judge may also find the jurisdiction in whic h the underlying offense occurred and the date it happened, which is gene rally enough to resolve the occa

sions inquiry, making sending it to a jury pointless. This Court disa

grees. To answer such questions, a court will sometimes consult the Shepard documents in a case, which include judicial records, plea agreements, and colloquies between a judge and the defendant. See Shepard v. United States , 544 U. S. 13. This Court’s cases hold that a sentencing judge may use th e information gleaned from Shepard doc

uments for the “limited function” of determining the fact of a prior con

viction and the then-existing elements of that offense. “[N]o more is allowed.” Mathis v. United States , 579 U. S. 500, 511. Moreover, often Shepard documents will not contain all the information needed to con

duct a sensible ACCA occasions inquiry, and they can also be “prone to error.” Mathis , 579 U. S., at 512. Pp. 15–19. (3) Amicus insists this Court’s Almendarez-Torres precedents are mistaken, because the Fifth and Si xth Amendments’ original meaning and common-law traditions authorize judges at sentencing to find all manner of facts about an offender’s past crimes. But this Court has been down this road many times before, and to reconsider all those precedents now would require, at th e least, convincing proof indeed. See Gaudin , 515 U. S., at 515. Yet amicus offers nothing like that, and the evidence he does offer does more to hurt than help his cause. Ami

cus points to supplemental informatio n procedures that a few States employed in the early 19th century. But a sentencing procedure fol

lowed by a few States hardly repres ents “convincing” proof that our precedents have mistaken the origin al meaning of the Fifth and Sixth Amendments. And in upholding on e such scheme, the Court stressed that, under the law’s terms, even “the fact of former conviction” had to4 ERLINGER v. UNITED STATES

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be “charged” by prosecutors and then “determined by a jury in a pro

ceeding thereby instituted.” Graham v. West Virginia, 224 U. S. 616 (1912). Amicus next turns to the Double Jeopardy Clause, which per

mits a judge to look into a defendan t’s past conduct to ask whether the government has charged a defendant for the same crime a second time. While the Double Jeopardy Clause protects a defendant by prohibiting a judge from even empaneling a jury when the defendant has already faced trial on the charged crime, the Fifth and Sixth Amendments’ jury trial rights provide a defendant with entirely complementary protec

tions at a different stage of the pr oceedings by ensuring that, once a jury is lawfully empaneled, the go vernment must prove beyond a rea

sonable doubt to a unanimous jury the facts necessary to sustain the punishment it seeks. Finally, Amicus points to case law and statutes in four other States. But while th is evidence may suggest that in a small number of jurisdictions, judges could find the existence, number, and dates of a defendant’s prior conv ictions, none of this provides a persuasive basis for revisiting this Court’s many precedents forbidding judges from doing more, let alone prove a longstanding tradition. Pp. 19–23. (4) Amicus argues that leaving the oc casions inquiry to juries would do more to prejudice than to protect defendants. That concern, like arguments about efficiency, cann ot alter the demands of the Fifth and Sixth Amendments. Tools such as bifurcation in any event exist to address the prejudicial effect evidence about a defendant’s past crimes can have on a jury. Pp. 23–26. 77 F. 4th 617, vacated and remanded.

G ORSUCH , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , S OTOMAYOR , K AGAN , and B ARRETT , JJ., joined. R OB

ERTS , C. J., and T HOMAS , J., filed concurring opinions. K AVANAUGH , J., filed a dissenting opinion, in which A LITO , J., joined, and in which J ACK

SON , J., joined except as to Part III. J ACKSON , J., filed a dissenting opin

ion._________________

_________________ 1 Cite as: 602 U. S. ____ (2024)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the Unit ed States, Washingt on, D. C. 20543, pio@supremecourt.gov , of any typographical or other formal errors. 

## SUPREME COURT OF THE UNITED STATES

No. 23–370

PAUL ERLINGER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2024]

J USTICE G ORSUCH delivered the opinion of the Court.
This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA im

poses lengthy mandatory prison terms on certain defend

ants who have previously committed three violent felonies or serious drug offenses on separate occasions. The ques

tion we face is whether a judge may decide that a defend

ant’s past offenses were comm itted on separate occasions under a preponderance-of-t he-evidence standard, or whether the Fifth and Sixth Amendments require a unani

mous jury to make that dete rmination beyond a reasonable doubt.

I In 2017, the federal government charged Paul Erlinger under 18 U. S. C. §922(g) with being a felon unlawfully in possession of a firearm. At the time, a conviction for that offense ordinarily carried a sentence of up to 10 years in prison. §924(a)(2) (2012 ed.). But the government also charged Mr. Erlinger under ACCA. And under that statute, a defendant found guilty of violating §922(g) can face even more severe punishment. Specifically, if the defendant has three prior convictions for “vio lent felon[ies]” or “serious2 ERLINGER v. UNITED STATES

Opinion of the Court
drug offense[s]” that were “committed on occasions differ

ent from one another,” ACCA increases the prison term he faces to a minimum of 15 years and a maximum of life. §924(e)(1) (2012 ed.). Mr. Erlinger pleaded guilty to violating §922(g). But in doing so, he stressed that hi s previous convictions were more than a decade old and since then he had turned his life around, secured a steady job, built a family, and re

mained free from drugs. Tr. of Plea and Sentencing Hear

ing in No. 2:18–cr–00013 (SD Ind., Oct. 24, 2018), ECF Doc. 67, p. 24. In light of these facts, the sentencing judge stated that a 5-year prison term would represent a “fair sentence.” Id. , at 30. But the judge also found it more likely than not that Mr. Erlinger’s past included three ACCA-qualifying of

fenses committed on three different occasions. Id. , at 17. And based on that finding, the court concluded, it had no authority to issue a 5-year sentence. Id. , at 29–30. Instead, ACCA required a sentence of at least 15 years. That was “too high” for Mr. Erlinger’s crime, the court emphasized, but it had “no power” to order anything less. Ibid. Shortly after the court issu ed a 15-year sentence con

sistent with ACCA, the ground shifted. The Seventh Cir

cuit issued decisions indicating that two of the three of

fenses on which the district court had relied to invoke ACCA did not qualify as “violent felon[ies]” or “serious drug offense[s].” 77 F. 4th 617, 619 (2023) (citing United States

v. Glispie , 978 F. 3d 502 (2020), and United States v. De La Torre , 940 F. 3d 938 (2019)). That left Mr. Erlinger with only one qualifying prior conviction, not the three ACCA re

quires. Recognizing as much, the district court vacated its sentence and set the case for a new sentencing hearing. Or

der, ECF Doc. 81. There, prosecutors once more pursued a 15-year ACCA sentence. This time, though, they pointed to a new set of prior convictions arising from burglaries Mr. Erlinger com

mitted when he was 18 years old—some 26 years before his3 Cite as: 602 U. S. ____ (2024)

Opinion of the Court
§922(g) charge. Tr. of Video Resentencing Hearing, ECF Doc. 120, at 37–38. As the government told it, within a span of days Mr. Erlinger burglarized a pizza shop, a sporting goods store, and two restaurants. Ibid. Because each of these burglaries occurred on different occasions, the gov

ernment submitted, each could serve as an ACCA predicate and collectively they could support an ACCA sentence. Id.

, at 39–40.Mr. Erlinger protested. He maintained that his decadesold burglaries had not occurred on four separate occasions but during a single criminal episode, all of which meant he still lacked the three prior offenses ACCA requires. Id. , at 20. More than that, Mr. Erlinger argued, the question whether he committed his prior burglaries during a single episode or on distinct occasions required an assessment of the facts surrounding those offenses. Id. , at 22–23. And, he contended, the Fifth and Sixth Amendments entitled him to have a jury make that assessment. Id. , at 23. The district court rejected Mr . Erlinger’s request for a jury. It proceeded to find for itself that each of his 26-year

old burglaries occurred on distinct occasions. Id. , at 48–49. Armed with this finding, the court held that Mr. Erlinger had at least three previous ACCA-qualifying offenses and once more issued a 15-year sent ence. Again, the court said that it thought the result “unfortunate” and “excessive.” Id. , at 50. But, again, it said ACCA left it no choice. Id. , at 50–51. On appeal, Mr. Erlinger renewed his argument that the Fifth and Sixth Amendments entitled him to have a jury decide whether his burglaries occurred on different occa

sions. But this time, the gove rnment confessed error. The Constitution, it said, “requi res a jury” to decide unani

mously and beyond a reasonable doubt whether Mr. Er

linger’s ACCA predicates were “ ‘committed on occasions different from one another.’ ” 77 F. 4th, at 619, 620. In explaining its turnabout , the government pointed to4 ERLINGER v. UNITED STATES

Opinion of the Court

this Court’s recent decision in Wooden v. United States , 595 U. S. 360 (2022). That decision did not directly address whether a judge may, or a jury must, resolve disputes about whether multiple crimes occurred on multiple occasions. Id ., at 365, n. 3; see id. , at 397, n. 7 (G ORSUCH , J., concur

ring in judgment). But, the government acknowledged, Wooden did hold that ACCA’s occasions “inquiry” can re

quire an examination of a “range” of facts, including whether the defendant’s past offenses were “committed close in time,” whether they we re committed near to or far from one another, and whether the offenses were “similar or intertwined” in purpose and character. Id. , at 369. And given the intensely factual nature of this inquiry and the impact its resolution can have on a defendant’s sentence, the government admitted, a jury must resolve it. That con

clusion, the government represented, flows directly from this Court’s consistent holdings that the Fifth and Sixth Amendments generally guarantee a defendant the right to have a unanimous jury find beyond a reasonable doubt any fact that increases his exposure to punishment. Brief for United States in No. 22–1926 (CA7), pp. 9–11. Despite the government’s concession, the Seventh Circuit refused to disturb the district court’s sentence. 77 F. 4th, at 621–622. That left Mr. Erlinger to petition this Court for certiorari. The government filed a brief in support of his petition. In it, the governme nt argued that a number of courts of appeals have refused requests for juries in cases like Mr. Erlinger’s and that “this Court’s intervention is necessary to ensure that the circuits correctly recognize de

fendants’ constitutional rights in this context.” Brief for United States on Pet. for Cert. 5–6. We agreed to take up Mr. Erlinger’s case to decide whether ACCA’s occasions inqu iry must be resolved by a jury. 601 U. S. ___ (2023). Because the government now agrees with Mr. Erlinger about the proper resolution of that question, we appointed Nick Ha rper to defend the judgment5 Cite as: 602 U. S. ____ (2024)

Opinion of the Court

below as amicus curiae . 601 U. S. ___ (2023). He has ably discharged his responsibilities.

II A Prominent among the reasons colonists cited in the Dec

laration of Independence for their break with Great Britain was the fact Parliament and the Crown had “depriv[ed] [them] in many cases, of the benefits of Trial by Jury.” ¶20. For centuries, English law had recognized the right to trial by jury. Duncan v. Louisiana , 391 U. S. 145, 151 (1968). Yet, as tensions grew between the British Empire and its American Colonies, imperial authorities responded by stripping away that ancient righ t. By their lights, colonial juries “ ‘were not to be trusted’ ” because they found for de

fendants too often. D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764– 1776, 16 Wm. & Mary Q. 459, 468 (1959). To secure more vigorous enforcement of the Stamp Act and other unpopularlaws, authorities directed more and more cases to viceadmiralty courts where crown-appointed judges, rather than local juries, decided the defendant’s fate. Jones v. United States , 526 U. S. 227, 245–246 (1999). Just as au

thorities hoped, the tactic proved “ ‘most effective’ ” at secur

ing the verdicts they wished. Parklane Hosiery Co. v. Shore

, 439 U. S. 322, 340, n. 3 (1979) (Rehnquist, J., dissenting) (quoting 11 W. Holdsworth, A History of English Law 110 (1966)). After securing their indepe ndence, the founding genera

tion sought to ensure what happened before would not hap

pen again. As John Adams put it, the founders saw repre

sentative government and trial by jury as “the heart and lungs” of liberty. Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). “[W]ithout them,” he wrote, we “have no other forti

fication . . . against being ridden like horses, fleeced like6 ERLINGER v. UNITED STATES

Opinion of the Court
sheep, worked like cattle, and fed and clothed like swine and hounds.” Ibid . Reflecting that sentiment, the right to trial by jury in criminal cases was, on one telling, the only right included in every newly enacted state constitution. A. Alschuler & A. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 870 (1994). Those who drafted our Federal Constitution took just as strong a stand on the jury trial right. As originally pro

posed, the Constitution promis ed that “[t]he Trial of all Crimes, except in Cases of Impe achment, shall be by Jury.” Art. III, §2, cl. 3. In the ratification debates that followed, some questioned the adequacy of this provision; even with it, they feared, the new federal government might fall prey to the kinds of temptations that led the British to restrict the jury trial right in the colonies. That right, they argued, had to be “guard[ed] with the most jealous circumspection.” A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in The Complete Bill of Rights 681 (N. Cogan 2d ed. 2015) (in

ternal quotation marks and italics omitted). To address this and other concerns about the new Constitution, James Madison agreed to draft a series of amendments we now know as the Bill of Rights. No fewer than three of those ten amendments touch on the right to trial by jury, two with implications for criminal cases. Amdts. 5, 6, 7. Madison himself described protections for the jury trial right as among “the most valuable” that appear in “the whole list” of amendments he produced. 1 Annals of Cong. 755 (1789). The Sixth Amendment promises that “[i]n all criminal prosecutions the accused” has “the right to a speedy and public trial, by an impartial jury.” Inhering in that guaran

tee is an assurance that a guilty verdict will issue only from a unanimous jury. Ramos v. Louisiana , 590 U. S. 83, 93 (2020). The Fifth Amendment further promises that the government may not deprive individuals of their liberty without “due process of law.” It is a promise that safe

-7 Cite as: 602 U. S. ____ (2024)

Opinion of the Court
guards for criminal defendant s those procedural protec

tions well established at common law, including the “an

cient rule” that the government must prove to a jury every one of its charges beyond a reasonable doubt. United States

v. Haymond , 588 U. S. 634, 641 (2019) (plurality opinion);

see Apprendi v. New Jersey , 530 U. S. 466, 477–478 (2000); United States v. Gaudin , 515 U. S. 506, 510 (1995); Sullivan

v. Louisiana , 508 U. S. 275, 277–278 (1993). The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system. From the start, those provisions were understood to require the government to include in its criminal charges “ ‘all the facts and circum

stances which constitute the offence.’ ” Apprendi , 530 U. S., at 478 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862)). Should an “indictment or ‘accusation . . . lack any particular fact which the laws ma[d]e essential to the punishment,’ it was treated as ‘no accusation’ at all.” Haymond , 588 U. S., at 642 (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872) (some alterations omitted)). And at all times the “‘truth of every accusation’ ” against a defendant had to be “ ‘confirmed by the unanimous suffrage of twelve of [his] equals and neigh

bours.’ ” Apprendi , 530 U. S., at 477 (quoting 4 W. Black

stone, Commentaries on the Laws of England 343 (1769); emphasis deleted). Equally, the Fifth and Sixth Amendments sought to en

sure that a judge’s power to punish would “deriv[e] wholly” from, and remain always “contro l[led]” by, the jury and its verdict. Blakely v. Washington , 542 U. S. 296, 306 (2004). Ordinarily, common-law crimes carried “specific sanctions, and ‘[o]nce the facts of the offense were determined by the jury, the judge was meant simply to impose the prescribed sentence.’ ” Haymond , 588 U. S., at 642 (quoting Alleyne v. United States , 570 U. S. 99, 108 (2013) (plurality opinion)). Even when it came to early American statutes that gave judges a measure of discretion in selecting among possible8 ERLINGER v. UNITED STATES

Opinion of the Court sentences, “the ranges themse lves were linked to particular facts” found by the jury. Alleyne , 570 U. S., at 109 (collect

ing examples). All of which guaranteed that a judge could not “ ‘swell the penalty above what the law . . . provided for the acts’ ” found by a jury of the defendant’s peers. Hay

mond , 588 U. S., at 642 (quoting Apprendi , 530 U. S., at 519 (T HOMAS , J., concurring)). These principles represent not “procedural formalit[ies]” but “fundamental reservation[s] of power” to the American people. Blakely , 542 U. S., at 305–306. By requiring the Executive Branch to prove its charges to a unanimous jury beyond a reasonable doubt, the Fifth and Sixth Amend

ments seek to mitigate the risk of prosecutorial overreach and misconduct, including the pursuit of “pretended of

fenses” and “arbitrary convictions.” The Federalist No. 83,

p. 499 (C. Rossiter ed. 1961); accord, Federal Farmer, Letter XV (Jan. 18, 1788), reprinted in 2 The Complete Anti-Feder

alist 320 (H. Storing ed. 1981). By requiring a unanimous jury to find every fact essential to an offender’s punishment, those amendments similarly seek to constrain the Judicial Branch, ensuring that the punishments courts issue are not the result of a judicial “inquisition” but are premised on laws adopted by the people’s elected representatives and facts found by members of the community. Blakely , 542 U. S., at 307; Haymond , 588 U. S., at 640–641. Both of these checks on governmental power, the framers appreci

ated, were “anchor[s]” essential to prevent a slide back to

ward regimes like the vice-admiralty courts they so des

pised. Letter from T. Jefferson to T. Paine (July 11, 1789), reprinted in 15 Papers of Thomas Jefferson 266, 269 (J. Boyd ed. 1958). With the passage of time, and accelerating in earnest in the 20th century, various governments in this country sought to experiment with new trial and sentencing prac

tices. See Mistretta v. United States , 488 U. S. 361, 363– 367 (1989); Williams v. New York , 337 U. S. 241, 247–2489 Cite as: 602 U. S. ____ (2024)

Opinion of the Court
(1949); see also P. Tappan, Sentencing Under the Model Pe

nal Code, 23 Law & Contemp. Prob. 528, 529–532 (1958). But in case after case, this Court has cautioned that, while some experiments may be tolerable, all must remain within the Fifth and Sixth Amendments’ guardrails. So, for example, in Apprendi this Court faced a case in

volving a New Jersey offense that ordinarily carried a max

imum sentence of 10 years in prison. 530 U. S., at 468. The State, however, had adopted a novel “sentencing enhance

ment” that purported to allow a judge to impose an even longer term of imprisonment after finding, by a preponder

ance of the evidence, that the offender’s crime was moti

vated by racial bias. Id ., at 468–471. Relying on that stat

utory authority, the sentencing judge ordered the defendant to serve 12 years in prison. Id. , at 471. This Court found the sentence uncon stitutional, and did so for a by-now familiar reason: Only a jury may find “‘facts that increase the prescribed range of penalties to which a crimi

nal defendant is exposed.’ ” Id. , at 490. It is a principle we have since reiterated in response to a variety of other recent sentencing innovations. See Hay

mond , 588 U. S., at 644 (collecting cases). And it is a prin

ciple, we have observed, that does not just apply when a judge seeks to issue a sentence that exceeds the maximum penalty authorized by a jury’s findings (or a guilty plea). It is a principle that also applies when a judge seeks to in

crease a defendant’s minimum punishment. Alleyne illus

trates the point. There, we confronted a case in which a jury had convicted the defendant of a crime that usually carried a sentence of between five years and life in prison. 570 U. S., at 103–104. But a separate statutory “sentencing enhancement” ostensibly allowed the judge to transform that 5-year minimum sentence into a 7-year minimum sen

tence if he found a certain ad ditional fact by a preponder

ance of the evidence. Ibid. That innovation, too, the Court held, improperly invaded the jury’s province because “[a]10 ERLINGER v. UNITED STATES

Opinion of the Court
fact that increases” a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sen

tence, must “be submitted to a jury” and found unanimously and beyond a reasonable doubt. Id ., at 111–113. The principles Apprendi and Alleyne discussed are so firmly entrenched that we hav e now overruled several deci

sions inconsistent with them. See, e.g. , Hurst v. Florida

, 577 U. S. 92, 101–102 (2016) (overruling Hildwin v. Flor

ida , 490 U. S. 638 (1989) ( per curiam ), and Spaziano v. Flor

ida , 468 U. S. 447 (1984)); Alleyne , 570 U. S., at 107 (over

ruling Harris v. United States , 536 U. S. 545 (2002)); Ring

v. Arizona , 536 U. S. 584, 609 (2002) (overruling Walton v. Arizona , 497 U. S. 639 (1990)).

B Commendably, the government concedes before us, as it did before the court of appeals, what all this means for Mr.Erlinger’s case and others like it. Under §922(g), Mr. Erlinger faced between 0 and 10 years in prison. §924(a)(2) (2012 ed.). To trigger ACCA and expose him to longer prison terms, the government had to prove that his past in

cluded three convictions for “violent felon[ies]” or “serious drug offense[s]” that were “committed on occasions differ

ent from one another.” §924(e)(1). And under Wooden , de

ciding whether those past o ffenses occurred on three or more different occasions is a fact-laden task. Were the crimes “committed close in time”? 595 U. S., at 369. How about the “[p]roximity” of their “location[s]”? Ibid. Were the offenses “similar or intertwined” in purpose and char

acter? Ibid. All these questions, Wooden observed, “may be relevant” to determining whet her the offenses were com

mitted on one occasion or separate ones—and all require facts to be found before ACC A’s more punitive mandatory minimum sentence may be lawfully deployed. Ibid. As the government recognizes, there is no doubt what the Constitution requires in these circumstances: Virtually11 Cite as: 602 U. S. ____ (2024)

Opinion of the Court “any fact” that “ ‘increase[s] the prescribed range of penal

ties to which a criminal defendant is exposed’ ” must be re

solved by a unanimous jury be yond a reasonable doubt (or freely admitted in a guilty plea). Apprendi

, 530 U. S., at 490; see Brief for United States 9. Judges may not assume the jury’s factfinding function for themselves, let alone pur

port to perform it using a mere preponderance-of-the-evidence standard. To hold otherwise might not portend a revival of the vice-admiralty courts the framers so feared. See Part II–A, supra . But all the same, it would intrude on a power the Fifth and Sixth Amendments reserve to the American people. Really, this case is as nearly on all fours with Apprendi and Alleyne as any we might imagine. In Apprendi , a judge relied on his own factual findings under a preponderance

of-the-evidence standard to increase the defendant’s maxi

mum sentence from 10 to 20 years. 530 U. S., at 469. In Alleyne , a judge proceeded the same way to increase the de

fendant’s minimum sentence from five to seven years. 570 U. S., at 104. Here, the sentencing court’s factual finding that Mr. Erlinger’s offenses occurred on at least three sep

arate occasions had the effect of increasing both the maxi

mum and minimum sentences he faced. Rather than a maximum sentence of 10 years in prison, the judge’s finding left Mr. Erlinger exposed to life in prison. Rather than a minimum penalty of no prison time, the judge’s finding meant Mr. Erlinger had to serve at least 15 years. While recognizing Mr. Erlinger was entitled to have a jury resolve ACCA’s occasions inquiry unanimously and be

yond a reasonable doubt, we decide no more than that. For purposes of the proceedings before us, the parties take as given that Mr. Erlinger commi tted four burglaries and that each qualifies as a “violent offense” under ACCA. But they disagree vigorously about whether those burglaries took place on at least three different occasions (so that ACCA’s12 ERLINGER v. UNITED STATES

Opinion of the Court
enhanced sentences would apply) or during a single crimi

nal episode (so that they woul d not). Presented with evi

dence about the times, locations, purpose, and character of those crimes, a jury might have concluded that some or all occurred on different occasions. Or it might not have done so. All we can say for certain is that the sentencing court erred in taking that decision from a jury of Mr. Erlinger’s

peers. 1

——————

1 J USTICE J ACKSON pursues an argument neither the government nor amicus nor the principal dissent attempts. She says Apprendi v. New Jersey , 530 U. S. 466 (2000), “was wrongly decided,” and all but calls on the Court to overturn our ma ny precedents applying it, post , at 1, and

n. 1, 10–18. But rather than meaningfully engage with the Constitution, its original meaning and hist ory, or our precedents, J USTICE J ACKSON would abandon “constitutional theory” and appeal to a different author

ity. Post , at 27. “In my view,” post , at 20, J USTICE J ACKSON contends, juries cannot “deal with the fine-grained, nuanced determinations . . . that are necessary to fairly adjudicate factual questions like the one that ACCA’s occasions inquiry raises,” post , at 23. But the Constitution does not take such a dim view about the capacity of jurors or the rigors of trial. Surely, too, juries are no less capable than judges to decide whether three past events happened on three separate occasions. Day in and day out, using everyday trial procedures, juri es decide exponentially more com

plex questions than that. Nor, of course, does Apprendi prohibit legisla

tures from enacting reforms authorizing judges to lower sentences based on their own factfinding. See, e.g. , First Step Act of 2018, Pub. L. 115– 391, 132 Stat. 5194; 18 U. S. C. §3553(f ) (doing just that). The only thing judges may not do consistent with Apprendi is increase a defendant’s ex

posure to punishment based on their own factfinding. All of which leaves J USTICE J ACKSON with her real complaint: In her view, it is “wildly inef

ficient” to require the government to call witnesses and present evi

dence—which is to say prove its ca se—when a judge might more easily enhance a defendant’s exposure to punishment by consulting “some

times-decades-old,” post , at 23, and error-prone court records, infra

, at 17–19. But does J USTICE J ACKSON really think it too much to ask the government to prove its case (as it concedes it must) with reliable evi

dence before seeking enhanced p unishments under a statute like ACCA when the “practical realit[y]” for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison? Post , at 27. J USTICE J ACKSON may view juries as “roadblocks” to higher punishments. Post , at 18. But13 Cite as: 602 U. S. ____ (2024)

Opinion of the Court

III A The Court-appointed amicus resists the conclusion we reach. Unlike J USTICE J ACKSON , see n. 1, supra , however, amicus does not dispute the Constitution’s time-honored guarantee that a unanimous jury ordinarily must find be

yond a reasonable doubt any fact that increases a de

fendant’s exposure to punishment. See Brief for CourtAppointed Amicus Curiae 1. In defending the decision below, amicus relies instead on an exception to that rule this Court announced in Almendarez-Torres v. United States , 523 U. S. 224 (1998). On amicus ’s telling, that ex

ception permits a judge to find perhaps any fact related to a defendant’s past offenses, including whether he commit

ted them on different occasions. Brief for Court-Appointed Amicus Curiae 10. The principal dissent presses the same line of argument. Post , at 5 (opinion of K AVANAUGH , J.). We disagree. In Almendarez-Torres , the Court consid

ered sentencing laws applicable to aliens who returned to the United States after a previous removal. The default sentencing range was up to tw o years of imprisonment. 8 U. S. C. §1326(a) (1994 ed.). But a finding that the govern

ment previously removed the alien after a “conviction for commission of an aggravated felony” triggered a new maxi

mum penalty of up to 20 years in prison. §1326(b) (1994 ed.). In Almendarez-Torres , the Court permitted a judge to undertake the job of finding th e fact of a prior conviction— and that job alone. 523 U. S., at 246–247. Almost immediately, too, the decision came under scru

tiny. Jones , 526 U. S., at 249, n. 10. The Court has since described Almendarez-Torres as “at best an exceptional de

parture” from “historic practice.” Apprendi , 530 U. S., at 487. That decision, we have said, parted ways from the

—————— “[t]he bottom line is this”: the peop le ratified the Fifth and Sixth Amend

ments, not any of our personal views. Post , at 27.14 ERLINGER v. UNITED STATES

Opinion of the Court “uniform course of decision during the entire history of our jurisprudence.” Id. , at 490. It was “arguabl[y] . . . incor

rec[t].” Id. , at 489. And it amounted to an “unusual . . . exception to the Sixth Amendment rule in criminal cases that ‘any fact that increases the penalty for a crime’ must be proved to a jury.” Pereida v. Wilkinson , 592 U. S. 224, 238 (2021) (quoting Apprendi , 530 U. S., at 490). In separate opinions, a number of Justices have criticized Almendarez-Torres further yet, and J USTICE T HOMAS , whose vote was essential to the majority in that case, has called for it to be overruled. See, e.g. , Mathis v. United States , 579 U. S. 500, 522 (2016) (T HOMAS , J., concurring); Descamps v. United States , 570 U. S. 254, 280 (2013) (T HOMAS , J., concurring in judgment); Shepard v. United States , 544 U. S. 13, 27 (2005) (T HOMAS , J., concurring in part and concurring in judgment); see also Jones , 526 U. S., at 252–253 (Stevens, J., concurring); Monge v. California

, 524 U. S. 721, 741 (1998) (Scalia, J., joined by Souter and Ginsburg, JJ., dissenting). Still, no one in this case has asked us to revisit AlmendarezTorres . Nor is there need to do so today. In the years since that decision, this Court has expressly delimited its reach. It persists as a “narrow exception” permitting judges to find only “the fact of a prior conviction.” Alleyne , 570 U. S., at 111, n. 1. Under that exception, a judge may “do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was con

victed of.” Mathis , 579 U. S., at 511–512. We have reiter

ated this limit on the scope of Almendarez-Torres “over and over,” to the point of “downright tedium.” 579 U. S., at 510, 519. 2 And so understood, Almendarez-Torres does nothing

——————

2 See Pereida v. Wilkinson , 592 U. S. 224, 238 (2021); United States v. Haymond , 588 U. S. 634, 644, n. 3 (2019) (plurality opinion); Descamps

v. United States , 570 U. S. 254, 269 (2013); Cunningham v. California

, 549 U. S. 270, 282 (2007); Shepard v. United States , 544 U. S. 13, 2415 Cite as: 602 U. S. ____ (2024)

Opinion of the Court

to save the sentence in this case. To determine whether Mr. Erlinger’s prior conviction s triggered ACCA’s enhanced penalties, the district court had to do more than identify his previous convictions and the legal elements required to sus

tain them. It had to find that those offenses occurred on at least three separate occasions. And, in doing so, the court did more than Almendarez-Torres allows.

B Perhaps, amicus replies, but perhaps not. If AlmendarezTorres permits a judge to find “what crime, with what ele

ments, the defendant was convicted of,” Mathis , 579 U. S., at 511–512, amicus reasons, that necessarily implies a judge may also find the jurisdiction in which the underlying offense occurred and the date it happened. Brief for CourtAppointed Amicus Curiae 29. And, amicus continues, in at least some (but admittedly not all) cases, knowing those facts will make the occasions inquiry so “ ‘straightforward’ ” that sending it to a jury woul d be pointlessly inefficient. Id.

, at 39–40. Again, we disagree. To conduct the narrow inquiry Almendarez-Torres authorizes, a court may need to know the jurisdiction in which the defendant’s crime occurred and its date in order to ascertain what legal elements the government had to prove to secu re a conviction in that place at that time. And to answer those questions, a sentencing court may sometimes consult “a restricted set of materials,” often called Shepard documents, that include judicial rec

ords, plea agreements, and colloquies between a judge and

—————— (2005) (plurality opinion); United States v. Booker , 543 U. S. 220, 244 (2005); Blakely v. Washington , 542 U. S. 296, 301 (2004); Apprendi v. New Jersey , 530 U. S. 466, 490 (2000). The principal dissent complains that some of these decisions “did not involve recidivism” questions. Post

, at 7 (opinion of K AVANAUGH , J.). But surely our consistent explanations of Almendarez-Torres ’s reach cannot be so casually dismissed. Perhaps especially when those explanations we re repeated in multiple cases that did “involve recidivism,” such as Shepard

, Descamps , and Mathis

.16 ERLINGER v. UNITED STATES

Opinion of the Court

the defendant. Descamps , 570 U. S., at 262; see Shepard

, 544 U. S., at 20–21, 26; Taylor v. United States , 495 U. S. 575, 602 (1990). None of that, however, means that a court may use Shep

ard documents or any other materials for any other pur

pose. To ensure compliance with the Fifth and Sixth Amendments, a sentencing judge may use the information he gleans from Shepard documents for the “limited func

tion” of determining the fact of a prior conviction and the then-existing elements of that offense. Descamps , 570 U. S., at 260. “[N]o more” is allowed. Mathis , 579 U. S., at 511. In particular, a judge may not use information in Shepard documents to decide “what the defendant . . . actu

ally d[id],” or the “means” or “manner” in which he commit

ted his offense in order to increase the punishment to which he might be exposed. 579 U. S

. , at 504, 510–511; see Descamps , 570 U. S., at 269. To sanction that practice would be to allow a sentencing court to do exactly what the Fifth and Sixth Amendments forbid. Ibid. The sentencing court in this case disregarded these con

straints. To determine what legal elements attached to Mr. Erlinger’s decades-old offenses, the court might have needed to consult Shepard documents to ascertain the ju

risdiction in which they occurred and the date on which they happened. But the court had no need or authority “to go any further,” Mathis , 579 U. S., at 511, and assume for itself the responsibility of deciding whether Mr. Erlinger’s past offenses differed enough in time, location, character, and purpose to have transpired on different occasions. Let alone undertake that inquiry all with an eye toward in

creasing his punishment. The Fifth and Sixth Amend

ments “contemplat[e] that a ju ry—not a sentencing court— will find such facts, unanimously and beyond a reasonableCite as: 602 U. S. ____ (2024) 17

Opinion of the Court

doubt.” Descamps , 570 U. S., at 269. 3 Other considerations fortify our conclusion. Often, as amicus concedes, Shepard documents will not contain all the information needed to conduct a sensible ACCA occa

sions inquiry, such as the exact times and locations of the defendant’s past crimes. Brief for Court-Appointed Amicus Curiae 40. Even when Shepard documents do contain that kind of granular information, more still may be required. After all, this Court has held that no particular lapse of time or distance between offenses automatically separates a single occasion from distinct ones. Wooden , 595 U. S., at 369–370. Often, a qualitative assessment about “the char

acter and relationship” of the offenses may be required. Id.

, at 369. So may an inquiry into whether the crimes shared “a common scheme or purpose.” Ibid. Not only are Shepard documents of limited utility, they can be “prone to error.” Mathis , 579 U. S., at 512; see also Brief for National Associatio n of Federal Defenders as Ami

cus Curiae 8–15 (NAFD Brief ) (recounting examples of ma

terial errors); post , at 25 (opinion of J ACKSON , J.) (acknowl

edging records are “imperfect” and may contain “material gaps”). The risk of error may be especially grave when it comes to facts recounted in Shepard documents on which adversarial testing was “unnecessary” in the prior proceed

ing. Mathis , 579 U. S., at 512. As we have recognized, “[a]t trial, and still more at plea hearings, a defendant may have

——————

3 The principal dissent dismisses our precedents restricting the mate

rials and facts judges can consider on the ground that those decisions did not “purpor[t] to articulate any Sixth Amendment holding.” Post

, at 8 (opinion of K AVANAUGH , J.). But, as the gove rnment recognizes, this Court did address the Sixth Amendmen t and “meant what it said.” See Reply Brief for United States 7. As the Court has said before and we hold again today: “[A] judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. . . . He can do no more, consistent with the Sixth Amendment, than determine what cri me, with what elements, the defendant was con

victed of.” Mathis v. United States , 579 U. S. 500, 511–512 (2016).18 ERLINGER v. UNITED STATES

Opinion of the Court

no incentive to contest what does not matter” to his convic

tion at the time. Ibid . He may even “ ‘have good reason not to’ ” haggle over seemingly immateri al errors in his judicial records. Ibid. (quoting Descamps , 570 U. S., at 270)

. Those realities counsel caution in the use of Shepard doc

uments. At the time of his prior conviction, a defendant might not have cared if a judi cial record contained a mis

take about, say, the time or location of his offense. Back then, fine details like those might not have mattered a bit to his guilt or innocence. Co ntesting them needlessly, too, might have risked squandering the patience and good will of a jury or the judge responsible for pronouncing a sen

tence. Yet, years later and faced with an ACCA charge, those kinds of details can carry with them life-altering con

sequences. For Mr. Erlinger, they may mean perhaps 10 more years in prison. As a matter of fair notice alone, old recorded details, prone to erro r, sometimes untested, often inessential, and the consequences of which a defendant may not have appreciated at the ti me, “should not come back to haunt [him] many years down the road by triggering a lengthy mandatory sentence.” 579 U. S., at 512; see also Jones , 526 U. S., at 249. We do not question amicus ’s assessment that in many cases the occasions inquiry will be “ ‘straightforward. ’ ” Brief for Court-Appointed Amicus Curiae 39. Often, a de

fendant’s past offenses will be different enough and sepa

rated by enough time and spac e that there is little question he committed them on separate occasions. But none of that means a judge rather than a jury should make the call. There is no efficiency exception to the Fifth and Sixth Amendments. In a free society respectful of the individual, a criminal defendant enjoys the right to hold the govern

ment to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers “ ‘regardless of how overwhelmin[g]’ ” the evidence may seem to a judge. Rose19 Cite as: 602 U. S. ____ (2024)

Opinion of the Court

v. Clark , 478 U. S. 570, 578 (1986). 4

C
Amicus next asks us to turn from doctrine to history. While our precedents have consistently read AlmendarezTorres as permitting a judge to find only the fact of a prior conviction and the elements required to sustain it, he in

sists our precedents are mistaken. Properly understood, he submits, the Fifth and Sixth Amendments’ original mean

ing and “deep” common-law traditions authorize judges at sentencing to find all manner of facts about an offender’s past crimes. Brief for Court-Appointed Amicus Curiae 7. We have been down this road before. In Apprendi , the Court carefully studied the original meaning of the Fifth and Sixth Amendments and found that almost “any fact that increases the penalty for a crime beyond the prescribed

——————

4 The principal dissent stresses that, despite our repeated admonitions about the limitations associated with the use of Shepard materials, “all 12 Courts of Appeals” have permitted judges to use them to resolve the occasions inquiry. Post , at 6 (opinion of K AVANAUGH , J.). But most of the decisions the dissent cites issued before Wooden ’s clarification about the nature of the occasions inquiry, a cl arification even the government now recognizes means a jury is required. And to the extent some lower courts have continued to allow judges to re solve occasions inqu iries even after Wooden v. United States , 595 U. S. 360 (2022), it seems confusion about Almendarez-Torres has played a role in th eir misapprehension about what the Constitution requires. See, e.g. , United States v. Stowell , 82 F. 4th 607, 611 (CA8 2023) (en banc) (Erickson, J., dissenting) (criticizing the majority for treating as “a fore gone conclusion” that a judge may con

tinue to find facts not proved to the jury to decide the occasions inquiry); United States v. Brown , 77 F. 4th 301, 301–302 (CA4 2023) (statement of Heytens, J.) (noting the “uncertain scope of Almendarez-Torres ”); id., at 302 (Niemeyer, J., concurring in part) (conceding “different ap

proach[es]” exist “a s to the scope of Almendarez-Torres ”); id ., at 303 (Wynn, J., dissenting from denial of rehearing en banc) (questioning “the continuing viability of Almendarez-Torres ”); see also United States v. Dudley , 5 F. 4th 1249, 1278 (CA11 2021) (Newsom, J., concurring in part and dissenting in part).20 ERLINGER v. UNITED STATES

Opinion of the Court
statutory maximum” was understood at the time of the Na

tion’s founding to be a fact a jury must find. 530 U. S., at 490; see also id. , at 499–512 (T HOMAS , J., concurring). In the years since, we have come to the same conclusion in one decision after another. See, e.g. , Mathis , 579 U. S., at 510;

supra , at 10 (collecting cases). To reconsider all those precedents now would require, at the least, proof “convincing indeed.” Gaudin , 515 U. S., at 515. Yet amicus offers nothing like that. He points to the “supplemental-information” procedures a few States em

ployed “in the early 19th century.” Brief for Court-Appointed Amicus Curiae 15. Those procedures allowed prosecutors seeking enhanced penalties premised on a defendant’s past convictions to charge them in “a supplemental, post-conviction information,” rather than in “a pre-conviction indictment.” Ibid. And, amicus stresses, this Court upheld one State’s supplemental-information scheme in G raham v. West Vir

ginia

, 224 U. S. 616 (1912). The principal dissent echoes the same points. Post , at 14–16 (opinion of K AVANAUGH , J.). But, if anything, the evidence amicus cites does more to hurt than help his cause. For one thing, a sentencing pro

cedure followed by a few Stat es hardly represents “convinc

ing” proof that our precedents have mistaken the original meaning of the Fifth and Sixth Amendments. Gaudin , 515 U. S., at 515; see id ., at 519. For another, when this Court upheld one of these supplemental-information schemes in Graham

, it stressed that, under the law’s terms, even “the fact of former conviction” had to be “charged” by prosecutors and then “determined by a jury in a proceeding thereby in

stituted.” 224 U. S., at 630. Put those points together and amicus ’s evidence provides perhaps more reason to ques

tion Almendarez-Torres ’s narrow exception than to expandCite as: 602 U. S. ____ (2024) 21

Opinion of the Court

it. 5 Reaching for another tradition, amicus (but not the prin

cipal dissent) turns to the Constitution’s Double Jeopardy Clause. That Clause, amicus observes, permits a judge to ask whether the government has charged a defendant for the same crime a second time. From this, he suggests, it must be that a judge can also look into the defendant’s past conduct to increase his senten ce. Brief for Court-Appointed Amicus Curiae 25–26. But that, too, does not follow. The Double Jeopardy Clause protects a defendant by prohibit

ing a judge from even empaneling a jury when the defend

ant has already faced trial on the charged crime. See, e.g. , Green v. United States , 355 U. S. 184, 188 (1957). The Fifth and Sixth Amendments’ jury trial rights provide a defend

ant with entirely complementary protections at a different stage of the proceedings by ensuring that, once a jury is law

fully empaneled, the government must prove beyond a rea

sonable doubt to a unanimous jury the facts necessary to sustain the punishment it seeks. Finally, amicus (rejoined now by the principal dissent,

see post , at 15–18 (opinion of K AVANAUGH , J.)) directs us to case law and statutes in four other States—South Carolina, Louisiana, Alabama, and Kansas. After the Constitution’s

——————

5 Amicus emphasizes that supplementa l-information procedures be

came more “widely adopted” in the 1920s after Graham . Brief for CourtAppointed Amicus Curiae 16. But, since Apprendi , this Court has in

sisted on “remain[ing] true” to the Fifth and Sixth Amen dment’s original meaning and protecting the ri ghts they secure against “ ‘erosion.’ ” 530 U. S., at 483. Accordingly, relatively modern innovations move us little, for they might just as well represent departures from the Constitution’s historic protections as evidence of them. Ibid .; accord, Gaudin , 515 U. S., at 518–519. Nor, for that matter, d oes looking to more modern times do much to help amicus . He does not dispute that, even as late as 1965, juries usually still had to find facts about prior convictions, whether un

der supplemental-information regimes or more traditional ones. See Ap

prendi , 530 U. S., at 489, n. 15; Almendarez-Torres v. United States , 523 U. S. 224, 261 (1998) (Scalia, J., dissenting).22 ERLINGER v. UNITED STATES

Opinion of the Court
adoption, amicus suggests, each of these States left “a wide range of recidivism-related issues” for judges, rather than juries, to resolve. Br ief for Court-Appointed Amicus Curiae 18. But what does this prove? Here again, amicus points to procedures in less than a handful of States. That is not the kind of “uniform postratifica tion practice” that can some

times “shed light upon the mean ing” of the Constitution. Gaudin , 515 U. S., at 519. Nor, again, do these practices prove much even taken on their own terms. Some of these States permitted a judge to make “sequencing” determina

tions—deciding, for example, whether the present offense was the defendant’s “‘second or subsequent’ ” offense. Brief for Court-Appointed Amicus Curiae 14, and n. 1, 18–19. 6 Some allowed a judge to find whether the defendant had successfully overturned a prior conviction on appeal or se

cured a pardon. Id

., at 19–20, and n. 4. 7 Some authorized a judge to find whether a defendant’s current offense and past crime occurred within a specified period of time. Id.

, at 19. 8 All told, amicus ’s evidence may suggest that in a small number of jurisdictions judges could find the exist

ence, number, and dates of a defendant’s prior convictions. But none of this provides a persuasive basis for revisiting our many precedents prohibiting judges from doing more. Let alone prove “ ‘a longstanding tradition’ ” in this Nation allowing a judge to find any fact regarding a defendant’s “recidivis[m].” Post

, at 5 (opinion of K AVANAUGH , J.). For that matter, it is not clear whether these four States

——————

6 See H. Toulmin, Digest of the La ws of the State of Alabama 209 (1823); Ala. Penal Code §73 (1866) ; 1859 Kan. Sess. Laws pp. 283–284; 1868 Kan. Sess. Laws pp. 380–381; 6 D. McCord, Statutes at Large of South Carolina 413 (1839); State v. Smith , 8 Rich. 460 (SC 1832); U. Phil

lips, Revised Statutes of Louisiana 155 (1856); 1870 La. Acts p. 206, §4.

7 See 1840 Ala. Sess. Laws 153; 1868 Kan. Sess. Laws pp. 380–381; State v. Hudson , 32 La. Ann. 1052, 1053 (1880).

8 Toulmin, Digest of the Laws of the State of Alabama, at 377.23 Cite as: 602 U. S. ____ (2024)

Opinion of the Court
always allowed judges to find even the fact of a defendant’s prior conviction. Take South Carolina. In State v. Smith

, 8 Rich. 460 (SC 1832), the court seemed to hold that the government did not have to allege in its indictment that the defendant had been previously convicted “for the crime of horse stealing” because that was a question for “the Court,” id. , at 460–461. But, as another State’s supreme court rec

ognized, in so holding Smith may have gone “too far.” State

v. Burgett , 22 Ark. 323, 324 (1860). It is unclear, too, whether Smith even accurately reflected South Carolina’s customary practice. Apprendi , 530 U. S., at 509, n. 5 (T HOMAS , J., concurring). Similar problems attend ami

cus ’s reliance on historic Louisiana practices. In State v. Hudson , 32 La. Ann. 1052 (1880), the Louisiana Supreme Court held that a jury did not “ha[ve] to pass” upon the ex

istence of “previous convictions.” Id. , at 1053. But Louisi

ana “overruled” Hudson three decades later, calling it out of step with “the common law” and “other jurisdictions.” State v. Compagno , 125 La. 669, 671–672, 51 So. 681, 682 (1910). Later still, amicus contends, Louisiana revived Hudson in State v. Guidry , 169 La. 215, 222, 124 So. 832, 835 (1929). See Brief for Court-Appointed Amicus Curiae 14. But however that may be, the historical practices in the four States amicus highlights do not appear to have been nearly as uniform or expansive as he supposes.

D Finally, amicus asks us to consider some practical prob

lems. Most especially, he argues that leaving the occasions inquiry to juries would do more to prejudice than protect defendants. Id ., at 41–47. It would because requiring pros

ecutors to prove that the defe ndant’s prior crimes took place on distinct occasions would enable them “to regale juries with the details” of the defendant’s past misconduct. Id ., at 42; see also post , at 18–21 (opinion of K AVANAUGH , J.); post , at 19–23 (opinion of J ACKSON , J.).24 ERLINGER v. UNITED STATES

Opinion of the Court
But just as arguments from efficiency cannot alter the de

mands of the Fifth and Sixth Amendments, neither may that practical concern, “of wh ich earlier courts were well aware.” Apprendi , 530 U. S., at 521 (T HOMAS , J., concur

ring). It is hard not to wonder , too: Are we really to suppose that the amici supporting Mr. Erlinger in this Court, in

cluding the National Associat ion of Criminal Defense Law

yers and the National Association of Federal Defenders, have been “somehow duped” into advocating for a rule that would be “unfair to criminal defendants”? Blakely , 542 U. S., at 312; see also NAFD Brief 25; Brief for National As

sociation of Criminal Defense Lawyers as Amicus Curiae 16–17. Of course not. As these groups stress, and the govern

ment agrees, traditional tools exist to address the prejudi

cial effect evidence about a defendant’s past crimes can have on a jury. Most obviously, a court can bifurcate the proceedings. In that “common,” Apprendi , 530 U. S., at 521,

n. 10 (T HOMAS , J., concurring), and often “fairest” practice, Spencer v. Texas , 385 U. S. 554, 567 (1967), a jury is first tasked with assessing whether the government has proved the elements of the §922(g) felon-in-possession charge. Then, and only if it finds the defendant guilty, the jury turns to consider evidence regarding whether the defend

ant’s prior offenses occurred on different occasions for pur

poses of applying ACCA’s mandatory minimum sentence under §924(e). J USTICE J ACKSON expresses concern about the “burdens” proceeding this way might impose. See post , at 21. But by sequencing and separating the jury’s deter

minations, a court decreases the likelihood that a jury will be “ ‘overpersuade[d]’ ” by the defendant’s prior criminal conduct. Post , at 22 (J ACKSON , J., dissenting) (quoting Mi

chelson v. United States , 335 U. S. 469, 476 (1948)). On this, all sides agree. The government reports that it “generally agree[s] to bifurcation” in ACCA cases like this one and that it has not “been able to anticipate as to why25 Cite as: 602 U. S. ____ (2024)

Opinion of the Court
[it] wouldn’t agree to bifurcation.” Tr. of Oral Arg. 58–59. Similarly, the National Association of Federal Defenders reports that, “[t]o [its] knowledge, every jury trial but one has been bifurcated when the jury was permitted to decide both the §922(g) unlawful-firearm-possession question and the §924(e) ‘occasions’ question.” NAFD Brief 26. 9 States that “have not already done so can likewise adjust to any state-law implications of [our ] straightforward application of Apprendi to . . . ACCA’s different-occasions require

ment.” Reply Brief 21; see also Spencer , 385 U. S., at 586 (Warren, C. J., concurring and dissenting) (observing that, whether or not required to do so, at the time most States had adopted “procedures which postpone the introduction of prior convictions until after the jury has found the de

fendant guilty of the crime currently charged”). 10

——————

9 Of the trials where proceedings were bifurcated, the National Associ

ation of Federal Defenders observes, so me “have resulted in acquittal or dismissal” at the first stage where pr ejudicial past conduct was omitted; another has resulted in acquittal at the second stage after the jury found the government had not carried its burden of showing the defendant’s prior offenses were committed on separate occasions; three others “have resulted in guilty verdicts” at both stages. NAFD Brief 21–22.

10 Once more parting ways with the parties and defense bar amici

, J USTICE J ACKSON asserts that Apprendi ’s rule confining judges at sen

tencing to the facts found by the jury hurts defendants and makes “racial disparities” in our criminal justice system “worse.” Post , at 16–17. As we have seen, however, Apprendi allows judges to lower sentences based on their own factual findings; it only prohibits judges from using their own facts to increase a defendant’s exposure to punishment. See n. 1,

supra . As the defense bar amici are quick to point out, that helps de

fendants. It seems, too, J USTICE J ACKSON has directed her fire at the wrong target. The reports and law review article cited by J USTICE J ACKSON attribute sentencing disparities to this Court’s remedial deci

sion in United States v. Booker , 543 U. S. 220, 245–246 (2005), as well as various other factors: judges, “prosecutors, law enforcement officials, probation officers . . . , overworked defense attorneys, and other actors involved in maintaining the court system.” K. Klein & S. Klein, A Ra-26 ERLINGER v. UNITED STATES

Opinion of the Court

* The jury trial may have “never been efficient.” Apprendi

, 530 U. S., at 498 (Scalia, J., concurring). It may require assembling a group of the defendant’s peers to resolve unanimously even seemingly straightforward factual ques

tions under a daunting reasonable doubt standard. Avoid

ing the prejudice associated with the introduction of evi

dence of past crimes may require careful attention, too. But the right to a jury trial “has always been” an important part of what keeps this Nation “free.” Ibid . Because the Fifth and Sixth Amendments do not to lerate the denial of that right in this case, the judgment of the Court of Appeals for the Seventh Circuit is vacated, and the matter is remanded for further proceedings consistent with this opinion.

It is so ordered

.

—————— cially Biased Obstacle Course: Apprendi Transformed the Federal Sen

tencing Guidelines into a Series of Judicial Obstacles; Can Shame Re

duce the Racial Disparities?, 99 N. C. L. Rev. 1391, 14 05, 1423 (2021). And, unlike J USTICE J ACKSON , the authors of the very article she cites “celebrate Apprendi ” because, in their view, it “unequivocally” gives a “bargaining chip” to defendants to seek more favorable plea offers. Id

., at 1399, and n. 33; see Blakely , 542 U. S., at 311–313._________________

_________________ 1 Cite as: 602 U. S. ____ (2024)

R OBERTS , C. J., concurring 

## SUPREME COURT OF THE UNITED STATES

No. 23–370

PAUL ERLINGER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2024]

C HIEF J USTICE R OBERTS , concurring. I join the opinion of the Court because I agree that under the Fifth and Sixth Amendments, a defendant is entitled to have a jury determine beyond a reasonable doubt whether his predicate offenses were committed on different occa

sions for purposes of the Armed Career Criminal Act. But as J USTICE K AVANAUGH explains, violations of that right are subject to harmless error review. See post , at 9–11 (dis

senting opinion). The Seventh Circuit should thus consider on remand the Government’s co ntention that the error here was harmless._________________

_________________ 1 Cite as: 602 U. S. ____ (2024)

T HOMAS , J., concurring 

## SUPREME COURT OF THE UNITED STATES

No. 23–370

PAUL ERLINGER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2024]

J USTICE T HOMAS , concurring. I join the Court’s opinion in full because it correctly applies our precedents. The fact that a defendant’s prior qualifying offenses occurred on “occasions different from one another” results in an increased punishment under the Armed Career Criminal Act. 18 U. S. C. §924(e)(1). The Sixth Amendment therefore gives criminal defendants the right to have a jury find that fact. See Apprendi v. New Jersey , 530 U. S. 466, 501 (2000) (T HOMAS , J., concurring) (“[A] ‘crime’ includes every fact that is by law a basis for imposing or increasing punishment” (emphasis added)). In Almendarez-Torres v. United States , 523 U. S. 224 (1998), the Court created a “na rrow exception” to the Sixth Amendment’s general rule and allowed a judge to find “the fact of a prior conviction,” even though that fact increases a defendant’s punishment, Alleyne v. United States , 570 U. S. 99, 111, n. 1 (2013). In this case, the Court acknowledges the sharp conflict between Almendarez-Torres and the Sixth Amendment. Ante, at 13–14. And, it properly de

clines to extend that dubious exception to the different-oc

casions inquiry under §924(e)(1). Ante, at 13–19. I continue to adhere to my view that we should revisit Almendarez-Torres and correct the “error to which I suc

cumbed” by joining that decision. Apprendi , 530 U. S., at 520 (opinion of T HOMAS , J.); see also Sessions v. Dimaya

, 584 U. S. 148, 226 (2018) (T HOMAS , J., dissenting); Mathis2 ERLINGER v. UNITED STATES

T HOMAS , J., concurring

v. United States , 579 U. S. 500, 522 (2016) (T HOMAS , J., con

curring); Descamps v. United States , 570 U. S. 254, 280–281 (2013) (T HOMAS , J., concurring in judgment); Rangel-Reyes

v. United States , 547 U. S. 1200, 1202 (2006) (T HOMAS , J., dissenting from denial of certiorari); Shepard v. United States , 544 U. S. 13, 27–28 (2005) (T HOMAS , J., concurring in part and concurring in judgment). We need not overrule Almendarez-Torres to rule in Erlinger’s favor, and he did not ask us to reconsider the decision—although he agrees that it should be overruled. Tr. of Oral Arg. 5. But, we have no shortage of other cases. Each Term, criminal defendants file a flood of petitions “speci fically presenting this Court with opportunities to reconsider Almendarez-Torres .” Rangel-Reyes , 547 U. S., at 1202 (opinion of T HOMAS , J.). Today’s decision demonstrates fu rther that “[i]t is time for this Court to do its part” by granting one of those many pe

titions and overruling Almendarez-Torres

. Rangel-Reyes

, 547 U. S., at 1202._________________

_________________ 1 Cite as: 602 U. S. ____ (2024)

K

AVANAUGH , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 23–370

PAUL ERLINGER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2024]

J USTICE K AVANAUGH , with whom J USTICE A LITO joins, and with whom J USTICE J ACKSON joins except as to Part III, dissenting. To prevent and punish violent crime committed with firearms, Congress has enacted numerous federal laws— most notably the National Firearms Act of 1934, the Gun Control Act of 1968, and the Armed Career Criminal Act of 1984. This case concerns the Armed Career Criminal Act.

As relevant here, ACCA imposes a minimum sentence on a defendant who previously was convicted of at least three violent felonies committed on different occasions—and who then, after the three prior vi olent felony convictions, unlawfully possessed a firearm. In applying ACCA’s minimum sentencing requirement, the Sixth Amendment allows a judge to determine whether the defendant has three or more prior convictions and whether those convictions were for violent fe lonies. The question in this case is whether the judge may also determine whether the defendant committed those prior crimes on different occasions, or instead whether a jury must do so. In my view, this Court’s prec edents establish that a judge may make the different-occasions determination. Because the Court today concludes that only a jury may make the different-occasions determinatio n, I respectfully dissent.2 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting

I Paul Erlinger has been convicted of at least 9 felonies, including at least 7 burglaries. Under federal law, he therefore may not possess a firearm. See 18 U. S. C. §922(g)(1). As a multiple-time convicted felon, Erlinger would have received repeated notice that he could not legally possess any firearms. Yet in 2017, the police received a tip that Erlinger had recently violated that federal law and purchased a gun. Pursuant to a search warrant, officers searched his home and found 20 guns—16 long guns and 4 handguns—and ammunition to go with them. Erlinger pled guilty to possessing a firearm as a felon, in violation of §922(g). At sentencing, the Government argued that the Armed Career Criminal Act mandated a minimum prison sentence because Erlinger had previously been convicted of at least three violent felonies committed on different occasions. The Government presented the charging documents and plea agreement for three offenses that Erlinger committed in 1991: (i) an April 4 burglary of a pizza restaurant; (ii) an April 8 burglary of a sporting-goods store; and (iii) an April 11 burglary of another restaurant. The U. S. District Court for the Southern District of Indiana determined that Erlinger had been convicted of each of those burglaries, and that those offenses qualified as violent felonies. Erlinger did not question the judge’ s authority to make those determinations. The District Court then concluded that Erlinger committed the three burglaries on “occasions different from one another.” §924(e)(1). On appeal, despite accept ing the District Court’s authority to determine whethe r he was convicted of the three prior violent felonies, Erlinger argued that the Sixth Amendment required a jury, not a judge, to determine whether he committed the feloni es on different occasions. That was not a promising argument. Like all 11 other Courts of Appeals that handle federal criminal cases, the3 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting

U. S. Court of Appeals for the Seventh Circuit had previously ruled that a judge may determine whether a defendant’s prior felonies we re committed on different occasions. Adhering to that Circuit precedent, the Seventh Circuit therefore rejected Erlinger’s argument. 77 F. 4th 617, 621–622 (2023) (citing United States v. Elliott , 703 F. 3d 378, 382 (2012)). The Court today, however, rejects the unanimous conclusion of the 12 Courts of Appeals. The Court holds that a jury must determine whether a defendant committed his prior felonies on different occasions. I respectfully disagree.

II The Sixth Amendment guarantees criminal defendants the right to a “trial” by an “impartial jury.” Relying on text and history, this Court’s precedents have interpreted the Sixth Amendment to draw a clear line between (i) the facts about the present crime that a ju ry must decide at trial and (ii) the facts about past crimes that a judge may determine at sentencing. In a series of cases that began with Apprendi v. New Jersey , the Court has held that a jury must find facts about a defendant’s present offense that alter the crime’s maximum or minimum possible sentence. 530 U. S. 466, 490 (2000). But Apprendi and this Court’s subsequent cases have not disturbed the longstanding sentencing rule that this Court recognized two years earlier in AlmendarezTorres v. United States : Judges may resolve questions about a defendant’s past crime s—questions of recidivism— that are relevant not to the defendant’s guilt for the present offense but rather to the length of the defendant’s sentence. 523 U. S. 224, 239, 247 (1998).4 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting

A This Court’s opinion in Almendarez-Torres resolves the question of whether a judge may decide if the defendant committed his prior violent offens es on different occasions. In that case, the Court squarely held that either a judge or a jury may apply sentence enhancements based on “recidivism.” Id. , at 247. Almendarez-Torres involved a statute that made it a crime for a deported noncitizen to illegally reenter the United States. Id. , at 229. The maximum sentence for that crime was 2 years. Ibid. But if the noncitizen had been convicted of certain aggravat ed felonies before he was deported, the maximum sentence for illegal reentry increased to 20 years. Ibid. Almendarez-Torres argued that the Constitution required “Congress to treat reci divism as an element of the offense.” Id. , at 239. If so, the Government would have toprove to a jury beyond a reasonable doubt that AlmendarezTorres had been convicted of an aggravated felony before his deportation. Ibid. This Court rejected that argument. Id. , at 247

. Recidivism, the Court stated, “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Id. , at 243. It is not an element of the present crime of illegal reentry. Id. , at 247; see also Jones v. United States , 526 U. S. 227, 249 (1999); Graham v. West Virginia , 224 U. S. 616, 629 (1912). The Court explained that the Federal and State Governments have long taken different approaches to applying recidivism sentencing enhancements. Almendarez-Torres , 523 U. S., at 246. Some provide a jury trial. Ibid. Others assign recidivism enhancements to the sentencing judge. Ibid. Given the absence of any “uniform” “tradition,” the Court concluded that the choice between those methods was left to the Legislature, not governed by “a federal constitutional guarantee.” Id. , at 246–247. To hold “that the Constitution5 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting
requires that recidivism be deemed an ‘element’ of petitioner’s offense would ma rk an abrupt departure from a longstanding tradition” where a judge or a jury could determine that a defendant is a recidivist. Id. , at 244. Importantly, that tradition of allowing judges to apply recidivism sentencing enhancements developed so as to avoid significant prejudice to criminal defendants. If the jury had to determine recidivism, the jury would hear highly prejudicial evidence about a defendant’s past criminal offenses at the trial for the present crime. Id. , at 235

. In short, in Almendarez-Torres the Court held that the Legislature can decide ho w it wants recidivism enhancements to be applied—by a judge or by a jury. Id.

, at 246–247. ACCA mandates a minimum sentence if the defendant had three prior convictions fo r violent felonies committed on different occasions. Erlinger does not dispute that Almendarez-Torres allows a judge to determine whether Erlinger had three prior convi ctions for violent felonies. The narrow question here is whether Almendarez-Torres also allows a judge to determine whether Erlinger’s three prior offenses were committed on different occasions. I would conclude that Almendarez-Torres also applies to the different-occasions inquiry. Under Almendarez-Torres

, legislatures may assign to judges the task of finding facts related to a defendant’s pa st crimes—that is, to his “recidivism.” Id ., at 239. That principle encompasses the different-occasions inquiry. After all, the enhancement in Almendarez-Torres applied when “the defendant was previously deported subsequent to a conviction for commission of an aggravated felony.” Id.

, at 235 (quotation marks omitted). To apply that enhancement, a judge had to find the date on which the defendant was convicted of the aggravated felony. The judge had to find that the defendant in fact was the person6 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting who had committed the aggravated felony. And the judge had to find that the defendant had been deported after that date. Like the statute in Almendarez-Torres , recidivism statutes often require a decisionmaker to determine the who, what, when, and where of prior offenses. The Almendarez-Torres Court had no difficulty concluding that Congress could authorize judges to make the factual findings necessary to apply the recidivism enhancement. Id. , at 246. To the extent that Almendarez-Torres left any doubt on that score, this Court recognized the case’s “precise holding” the followi ng year: The “distinctive significance of recidivism” distinguishes it from elements of the present crime. Jones , 526 U. S., at 248–249. Almendarez

- Torres thus means that judges can make all recidivism determinations at se ntencing. Only that rule can explain this Court’s cases allowing judges to find recidivism-related facts. See, e.g. , McNeill v. United States

, 563 U. S. 816, 820, 824 (2011); Shepard v. United States

, 544 U. S. 13, 20–21 (2005). ACCA’s different-occasions requirement similarly requires the judge to find the when and where of a defendant’s prior criminal acts. Therefore, under Almendarez-Torres , judges may make the differentoccasions determination. Given the Court’s opinion in Almendarez-Torres , it comes as no surprise that all 12 Courts of Appeals have concluded that judges may make the different-occasions determination. See United States v. Ivery , 427 F. 3d 69, 74–75 (CA1 2005); United States v. Santiago , 268 F. 3d 151, 156 (CA2 2001); United States v. Blair , 734 F. 3d 218, 227–228 (CA3 2013); United States v. Brown , 67 F. 4th 200, 201 (CA4 2023); United States v. Davis , 487 F. 3d 282, 288 (CA5 2007); United States v. Burgin , 388 F. 3d 177, 186 (CA6 2004); United States v. Elliott , 703 F. 3d 378, 381–383 (CA7 2012); United States v. Harris , 794 F. 3d 885, 887 (CA8 2015); United States v.7 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting

Walker , 953 F. 3d 577, 580–582 (CA9 2020); United States

v. Harris , 447 F. 3d 1300, 1304 (CA10 2006); United States

v. Weeks , 711 F. 3d 1255, 1259 (CA11 2013); United States

v. Thomas , 572 F. 3d 945, 952, n. 4 (CADC 2009).

B In concluding that Almendarez-Torres does not authorize judges to make the different -occasions determination, the Court says that subsequent decisions of this Court have “expressly delimited” the reach of Almendarez-Torres

. Ante , at 14–15, and n. 2 (citing United States v. Haymond

, 588 U. S. 634, 644, n. 3 (2019) (plurality opinion); Mathis v. United States , 579 U. S. 500, 511–512 (2016); Descamps v. United States , 570 U. S. 254, 269 (2013); Alleyne v. United States , 570 U. S. 99, 111, n. 1 (2013); Cunningham v. California , 549 U. S. 270, 282 (2007); Shepard

, 544 U. S., at 24 (plurality opinion); Blakely v. Washington , 542 U. S. 296, 301 (2004); Apprendi

, 530 U. S., at 490). But the cases cited by the Court do not support its claim that Almendarez-Torres has been cabined, at least not in a way that would require a ju ry to make the differentoccasions finding. Many of those cited cases did not involve recidivism. Both Alleyne v. United States and Apprendi v. New Jersey addressed the present crime, not prior crimes. 570 U. S., at 104; 530 U. S., at 468–469. Neither case revisited Almendarez-Torres ’s analysis of the distinctive history of recidivism sentencing enhancem ents for prior offenses. Indeed, both Alleyne and Apprendi expressly declined to “revisit” Almendarez-Torres . 570 U. S., at 111, n. 1; 530 U. S., at 490. And in analyzing Almendarez-Torres

, Apprendi drew a clear line between facts about prior crimes and facts about present crimes. 530 U. S., at 488. Apprendi8 ERLINGER v. UNITED STATES

K

AVANAUGH , J., dissenting
said as much multiple times. Id. , at 474, 488–489, and n. 14, 496. 1 The other cases cited by the Court did not even involve a constitutional claim. In Mathis v. United States and Descamps v. United States , the Court interpreted the text of ACCA in order to determine whether a prior conviction constituted a “violent felony.” 579 U. S., at 503 (quotation marks omitted); 570 U. S., at 257 (same); see also Shepard

, 544 U. S., at 15–16, 19. To be sure, the Court said that its interpretation of ACCA avoided “Sixth Amendment concerns.” Mathis , 579 U. S., at 511; Descamps , 570 U. S., at 267. But neither case purported to articulate any Sixth Amendment holding. Importantly, constitutional av oidance “is not a method of adjudicating constitutional questions by other means.” Clark v. Martinez , 543 U. S. 371, 381 (2005). When the Court flags potential constitutional concerns in a statutory case, that is a far cry from th e Court’s definitively resolving the potential constitutional issue, let alone altering previously binding constitutional precedent. A prior constitutional-avoidance holding does not absolve the Court of the duty to address the constitutional issue head-on when it is later presented to the Court. The Court’s decision today mistakenly elevates constitutional-avoidance holdings to constitutional holdings. Almendarez-Torres said what it said: The Constitution does not require a jury to make recidivism determinations. And no subsequent case of this Court has cabined the

——————

1 The other constitutional cases that the Court cites similarly did not involve recidivism. See United States v. Haymond , 588 U. S. 634, 645– 646 (2019) (plurality opinion) (“additional conduct in violation of ” the defendant’s supervised release); Cunningham v. California , 549 U. S. 270, 275 (2007) (facts about the defendant’s “violent conduct” in committing the charged crime); Blakely v. Washington , 542 U. S. 296, 298 (2004) (defendant acted with “deliberate cruelty” in committing the charged crime (quotation marks omitted)).9 Cite as: 602 U. S. ____ (2024)

K

AVANAUGH , J., dissenting holding of Almendarez-Torres . By distinguishing the different-occasions issue from the other facts about prior crimes, today’s decision mistakenly crosses the clear line that Almendarez-Torres and Apprendi drew between facts about the present offense and facts about prior offenses. 2

III Even accepting the Court’s interpretation of the Sixth Amendment as to the different-occasions issue, Erlinger’s sentence should be affirmed. As the Government says, any error was harmless. Tr. of Oral Arg. 45. This Court has long ruled that most constitutional errors, including Sixth Amendment errors, “can be harmless.” Washington v. Recuenco , 548 U. S. 212, 218 (2006) (quotation marks omitted). Th e harmless-error rule serves an important purpose. It ensures that appellate courts do not set aside convictions or se ntences “for small errors or defects that have little, if any, likelihood of having changed the result.” Neder v. United States , 527 U. S. 1, 19 (1999) (quotation marks omitted). So if a constitutional error is harmless “beyond a reasonable doubt,” the defendant’s conviction and sentence should be affirmed. Id. , at 18. The harmless-error rule will likely ameliorate some of the short-term problems that today’s decision otherwise would

——————

2 Unlike the Court’s interpretati on of ACCA in cases like Mathis and Descamps , moreover, the Court’s new cons titutional rule will apply not only to federal cases, but also to state cases. Several States have recidivism enhancements that requ ire judges to find whether the defendant committed prior crimes on different occasions. See, e.g. , 42 Pa. Cons. Stat. §9714(a)(2) (2019); R. I. Gen. Laws §12–19–21 (2002). Those state courts, like the federa l courts, have long relied on Almendarez-Torres to hold that judges may make that differentoccasions determination. See, e.g. , Commonwealth v. Gordon , 596 Pa. 231, 251, and n. 16, 942 A. 2d 174, 186, and n. 16 (2007); State v. Ramirez

, 936 A. 2d 1254, 1269 (R. I. 2007). Thos e courts, too, will be surprised by today’s new rule.10 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting cause. In any case that has not become final, the relevant appellate court can apply harmless-error analysis. 3 In most (if not all) cases, the fact that a judge rather than a jury applied ACCA’s differe nt-occasions requirement will be harmless. Whether prior felonies occurred on different occasions under ACCA is usually a straightforward question. As this Court succinctly stated in Wooden , courts “have nearly always treated offenses as occurring on separate occasions if a pers on committed them a day or more apart, or at a significant distance.” Wooden v. United States , 595 U. S. 360, 370 (2022) (quotation marks omitted). So in cases like this where undisputed facts establish that the defendant’s prior crimes o ccurred a day or more apart, it will usually be evident beyond a reasonable doubt that the failure to submit the different-occasions question to the jury had no effect on the defendant’s sentence. 4 This case is a good example. There can be no reasonable doubt that Erlinger committed three burglaries “on occasions different from one another.” 18 U. S. C. §924(e)(1). Erlinger burglarized three separate businesses, and each burglary occurred several days apart from the other two. His crimes had different victims, different dates, and different locations. And when offered the opportunity to dispute the District Court’s conclusion that he committed the three burglaries on different occasions, “Erlinger supplied no argument or evidence that would cast doubt” on the District Court’s analysis. 77 F. 4th, at 622. In this Court, Erlinger’s argument on harmless error was not much more enlightening. When asked whether he had

——————

3 For any case that is already final, the Teague rule will presumably bar the defendant from raising today’s new rule in collateral proceedings. See Edwards v. Vannoy , 593 U. S. 255, 258 (2021); Teague v. Lane , 489 U. S. 288, 310 (1989) (plurality opinion).

4 Going forward, I assume that the Wooden statement about offenses committed a day or more apart or at a significant distance will inform the content of jury instructions.11 Cite as: 602 U. S. ____ (2024)

K

AVANAUGH , J., dissenting “a viable argument” against harmless error, Erlinger responded that he could “ima gine somebody” who might. Tr. of Oral Arg. 25. For ex ample, Erlinger hypothesized that someone might commit a string of burglaries several days apart to pay a single gambling debt. Ibid. Of course, Erlinger did not argue that he actually fit that description. And regardless, no “rational ju ry” could think that separate burglaries days apart in differe nt places collapse into one occasion simply because the defendant committed the burglaries to pay a single debt. Neder , 527 U. S., at 18. For those reasons, I would hold that any Sixth Amendment error in this case was harmless. I recognize that this Court often leaves harmless-error questions to the Court of Appeals when the issue was not addressed below. See id. , at 25. But that is because harmless-error questions sometimes are fact-intensive and require painstaking analysis of a large record. Here, the relevant facts are simple and undisputed: Erlinger committed three burglaries of three different businesses on three different days, with several days separa ting each burglary. I would resolve the harmless-error issue in this case now rather than subjecting the parties to a pointless remand to the Court of Appeals and another round of briefing and argument, when the Court of Appeals’ decision is a foregone conclusion. The Court declines to do so. But the harmlesserror analysis will be straightforward for the Court of Appeals on remand.

IV The Court today has not overruled Almendarez-Torres ; it has simply carved out the different-occasions inquiry from the general Almendarez-Torres rule. But J USTICE T HOMAS has written separately to advocate overruling AlmendarezTorres altogether. Ante , at 2 (concurring opinion). And Erlinger agreed that “the Court should someday” overrule that precedent. Tr. of Oral Arg. 5.12 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting
Applying the traditional stare decisis factors, I am strongly opposed to overruling Almendarez-Torres

. The principle of stare decisis is encompassed within the “judicial Power” of Article III of the Constitution. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and co ntributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee , 501 U. S. 808, 827 (1991). Of course, adherence to constitutional precedent is not and should not be absolute. See Ramos v. Louisiana , 590 U. S. 83, 116–117 (2020) (K AVANAUGH , J., concurring in part). But the Court requires a “special justification” or “strong grounds” before revisiting a settled holding. Id. , at 120 (quotation marks omitted). That requirement “disciplines jurisprudential disagreement.” A. Barrett, Precedent and Jurisprudential Disagreement, 91 Texas L. Rev. 1711, 1722 (2013). In general, when consider ing whether to overrule a constitutional precedent, the Court analyzes a variety of factors that often boil down to three basic questions. First, “is the prior decision not just wrong, but grievously or egregiously wrong?” Ramos , 590 U. S., at 121 (K AVANAUGH , J., concurring in part). Second, “has the priordecision caused significant negative jurisprudential or realworld consequences?” Id. , at 122. And third, “would overruling the prior decision unduly upset reliance interests?” Ibid. Overruling Almendarez-Torres would require running the table on all three. As I see it, however, the argument for overruling Almendarez-Torres does not satisfy any of the three requirements.

A On the merits, I believe that Almendarez-Torres is correct in light of text and history. But even if one thinks that the case is wrong, it certainly is not egregiously wrong.13 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting
The Sixth Amendment textually guarantees the right to a jury trial, but its text does not specify all that the right entails. Instead, to define the jury right, the Court has looked to the common law, state practices in the founding era, opinions and treatises written soon afterward, and this Nation’s historical tradition. See Ramos

, 590 U. S., at 90. When those sources supply a clear answer, we can conclude that a rule is part of the jury right enshrined in the Sixth Amendment and therefore cannot be changed by the legislature. See id. , at 90–92. No settled historical practice or understanding establishes that a jury, rather than a judge, must determine for sentencing purposes whethe r a defendant is a recidivist. Statutes that enhance repeat offenders’ sentences “have a long tradition in this country that dates back to colonial times.” Parke v. Raley , 506 U. S. 20, 26 (1992). Given the prevalence of those statutes, if there were a legal consensus that a jury had to determine a defendant’s recidivism, we should be able to easily locate that consensus in the States’ laws. After all, as the Court reminds us, every state constitution ratified in the aftermath of the Revolution guaranteed a right to a trial by jury. Ante , at 6. Those state constitutional rights are analogous to the right guaranteed by the Sixth Amendment. But the States have traditionally used a “wide variety of methods of dealing with” recidivism enhancements. Spencer v. Texas , 385 U. S. 554, 566 (1967); see also Almendarez-Torres v. United States , 523 U. S. 224, 246–247 (1998). And some States have long given judges the responsibility to find the facts necessary to apply a recidivism sentencing enhancement for past crimes. States have done so to avoid the prejudice to the defendant that would result from telling the jury about the defendant’s prior crimes. One example is South Carolina. There, in the 1830s, the State had a steep recidivism enhancement for horse14 ERLINGER v. UNITED STATES

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thieves. State v. Smith , 8 Rich. 460 (S. C. 1832). The “Court, not the jury” decided whether the enhancement applied. Id. , at 461; see also State v. Allen , 8 Rich. 448, 449 (S. C. 1832); State v. Parris , 89 S. C. 140, 141, 71 S. E. 808, 809 (1911). Louisiana similarly recognized that facts about recidivism “were not essential ingredients constituting the offense charged, upon which the jury had to pass.” State v. Hudson , 32 La. 1052, 1053 (1880). As the Supreme Court of Louisiana later explained, there “is no provision in the Constitution that we have been able to find which authorizes or requires questions of fact not pertaining to the guilt or innocence of a defendant to be submitted to a jury.” S tate v. Guidry , 169 La. 215, 224, 124 So. 832, 835 (1929). Instead, the court held that the Louisiana Legislature could decide whether a judge or a jury should apply the recidivism sentencing enhancement. So did Alabama. See Yates v. State , 245 Ala. 490, 492, 17 So. 2d 777, 779 (1944) (It is “discretionary with the trial judge whether to impose additional punishment and to make inquiry into that question in a supplementary manner in order to apply the increased limits”). And Kansas. See State v. Woodman , 127 Kan. 166, 172, 272 P. 132, 134 (1928) (“In this state it is no concern of the jury” whether a recidivism enhancement applies); see also Chance v. State , 195 Kan. 711, 715, 408 P. 2d 677, 681 (1965) (“It has never been the rule in Kansas” that recidivism has to be treated as an element of a crime (quotation marks omitted)); see also 1868 Kan. Sess. Laws pp. 380–381 (recidivism enhancement). The variation in early American practice forecloses the argument that the right to have a jury apply recidivism15 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting
enhancements was traditionally understood as an inherent part of the Sixth Amendment right to trial by jury. 5 Another common practice in the early 1800s confirms that legislatures could choose how to handle recidivism issues. Early state constitutions required the government to include the elements of an offense in an indictment. See,
e.g. , Jones v. Robbins , 74 Mass. 329, 347, 350 (1857). The prosecution also had to prove elements of the offense beyond a reasonable doubt, as the requirements for an indictment and a jury trial went hand in hand. Commonwealth v. McKie , 67 Mass. 61, 62 (1854). But many States, including Massachusetts and Virginia, did not include the facts about past crimes in an indictment—in other words, did not treat recidivism as an element of the offense. See 1818 Mass. Acts pp. 603–604; 1819 Va. Acts ch. 171, pp. 619–620; 1824 Me. Laws p. 1009; 1868 W. Va. Acts ch. 165, pp. 733–734. Those States allowed the government to rais e and prove recidivism after the defendant had been convicted of the present crime. Those States’ practices reflected and reinforced the familiar line between a conviction for the present offense and a sentencing enhancement based on past offenses. State courts upheld that pr actice against constitutional challenges. In 1824, the Massachusetts Supreme Judicial Court held that even if the recidivism enhancement would have been included in the original indictment “at common law,” the “legislature had” the power to change that default rule. In re Ross , 19 Mass. 165, 171; see also State v. Graham , 68 W. Va. 248, 251, 69 S. E. 1010, 1011 (1910)

——————

5 A different constitutional rule app lies if the defendant’s status as a felon is an element of the present o ffense necessary to make the conduct criminal in the first place, as with the prohibition on possessing a firearm as a felon. See 18 U. S. C. §922(g)(1); Rehaif v. United States , 588 U. S. 225, 229–230 (2019). The issue here, by contrast, is the use of past offenses to enhance the sentence for the present offense of conviction.16 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting (The West Virginia recidivism statute “is not contrary to any constitutional provision”). Importantly, this Court upheld that practice as well. In Graham v. West Virginia , the Court reasoned that although “the State may properly provide for the allegation of the former conviction in the indictment,” there was “no constitutional mandate” to do so. 224 U. S. 616, 629 (1912). In short, the historical evidence reveals a “spectrum of state procedures” for applying recidivism-based sentence enhancements. Spencer , 385 U. S., at 566. America has a long tradition of legislative di scretion over whether a judge or jury will apply recidivism sentencing enhancements. 6 The different state approaches did not pop up by accident. The States had good reason to experiment with different approaches to recidivism enhancements. Why? Requiring the Government to present evidence of a defendant’s past crimes to a jury at trial woul d undermine the right to trial “by an impartial jury” that the Sixth Amendment protects. As this Court “has long recognized, the introduction of evidence of a defendant’s prior crimes risks significant prejudice.” Almendarez-Torres , 523 U. S., at 235. That kind of prior-crimes evidence “is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend agains t a particular charge.” Michelson v. United States , 335 U. S. 469, 476 (1948). To avoid that problem, American evidence laws have long restricted the use of prior- crimes evidence. See 1 J.

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6 Throughout much of American history, criminal sentencing at both the state and federal levels has ofte n been done by judges in systems where the judges have discretion to sentence within broad ranges. And in those discretionary-sentencing sy stems, judges routinely determine the facts of a defendant’s prior convictions and take account of a defendant’s criminal record in imposing a sentence within the broad sentencing range authorized by statute.Cite as: 602 U. S. ____ (2024) 17

K

AVANAUGH , J., dissenting Wigmore, Evidence §§193–194, pp. 231–235 (1904); Fed. Rule Evid. 404(b)(1). What good would that longstanding evidence principle be if the jury always had to apply recidivism enhancements? The price of having a jury apply recidivism sentencing enhancements would be the loss of a protection against prejudicial evidence that itse lf is deeply entrenched in American law. To avoid making defendants pay that price, some legislatures have long gi ven judges the responsibility of applying sentence enhancements—while reserving to juries the duty to fairly decide the defendant’s guilt for the present crime. See, e.g. , Hudson , 32 La., at 1053 (A judge may determine “previous convictions” because that information “might prejudice the jury”); Woodman , 127 Kan., at 172, 272 P., at 134–135 (“the jurors’ minds should not be diverted from the question of defendant’s innocence or guilt by facts concerning defendant’s prior convictions of other felonies,” and it “is also fairer to defendant to keep such matters entirely away from the jury”); see also D. Sidikman, Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N. Y. U. L. Rev. 210, 215 (1958) (allowing judges to apply recidivism enhancements ensures that the “jury trial as to the charged offense is cond ucted in a nonprejudicial atmosphere”). The distinctive tradition that governs recidivism enhancements for past offenses has traditionally co-existed with the general righ t to a jury trial for present offenses. To sum up: Since the early 1800s, some legislatures have entrusted recidivism sentencing findings to judges, and others have required juries to make those findings. That variation reflects the many countervailing interests that legislatures must balance on this issue—including the prejudice that results from telling a jury about a defendant’s past criminal behavior. And that unsurprising variation makes clear that Almendarez-Torres was and18 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting
remains correct. The Sixth Amendment allows a judge to determine whether the defendant should receive a recidivism sentencing enhancement. At a minimum, the history shows that Almendarez-Torres is not egregiously
wrong.
B Suppose, however, that one thinks that AlmendarezTorres is wrong, even egregiously wrong. Even then, the two other stare decisis factors—consequences and reliance interests—strongly counsel in favor of adhering to Almendarez-Torres rather than overruling it. First

, Almendarez-Torres has not generated the kind of negative real-world or jurisp rudential consequences that would support an overruling. By allowing judges to apply recidivism enhancements, Almendarez-Torres has ensured that defendants need not choose between (i) their right to a jury trial and (ii) their interest in keeping the details of past crimes from a jury. Consider the prejudice that overruling AlmendarezTorres would cause if a jury had to decide whether defendants are eligible for every state and federal recidivism sentencing enhancement. As happened in one recent federal trial, the jury could hear a prosecutor’s closing argument begin: “Ladies and gentlemen of the jury, this defendant, a gun toting, drug slinging three time convicted felon . . . .” United States v. Harrell , No. 1:22–cr– 20245 (SD Fla., Mar. 6, 2023), ECF Doc. 105, p. 33. The verdict in that case? Guilty. Erlinger suggests that trial courts could avoid putting defendants to the choice between prejudicing the jury and having to forgo a jury trial by bifurcating the trial. Bifurcating entails holding a se parate mini-trial with the jury on the recidivism enhancement after the jury has found the defendant guilty of a crime.19 Cite as: 602 U. S. ____ (2024)

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AVANAUGH , J., dissenting

But most criminal cases are tried in state court. And States remain free not to bifurca te (as do federal judges, for that matter). Bifurcated trials have been and remain “rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.” Spencer , 385 U. S., at 568. Instead, the trial court ordinar ily has discretion to decide whether to bifurcate, and bifurcati on carries “its own costs.” United States v. Durham , 655 F. Supp. 3d 598, 615 (WD Ky. 2023). In order for overruling Almendarez-Torres to help defendants instead of hurting many of them, this Court would have to say as a matter of constitutional law that all 50 States and the federal courts must hold bifurcated trials in recidivism cases. Of course, that would require overruling Spencer , 385 U. S., at 568–569. I doubt that the Court would go to that extreme. So if Almendarez-Torres were overruled, a defendant who is denied a bifurcated trial could be subject to all of the harm and prejudice that results from telling a jury about the defendant’s past crimes. 7 Erlinger also suggests that, to avoid prejudice, defendants can stipulate to the relevant facts about their prior crimes. Brief for Petitioner 41. But that of course makes sense only in cases where the defendant is not disputing the recidivism enhancement. Stipulation is obviously not a solution for those cases where the defendant is contesting his prior convictions and the recidivism enhancement. In any event, it is true that this Court has interpreted the Federal Rules of Evidence to require the Government to accept a defendant’s stipulation that he has a prior conviction. Old Chief v. United States , 519 U. S. 172, 191– 192 (1997). But even under the Federal Rules as

——————

7 If a State does not provide for bifurcation, a defendant’s only path to avoid the prejudice from the prosec utor’s parading evidence of the defendant’s past crimes before the jury may be to seek the best plea deal possible and plead guilty—hardly a beneficial result for defendants.20 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting
interpreted in Old Chief , the jury will still hear the stipulation—for example, that the defendant admits that he committed prior felonies. And to reiterate, most criminal cases are tried in state court. This Court’s interpretation of the Federal Rules of Evidence does not require state courts to follow suit when they interpret state rules of evidence. See, e.g. , State v. Ball , 99–0428, p. 5 (La. 11/30/99), 756 So. 2d 275, 278 (“We conclude that Old Chief is not controlling and decline to follow it”); Commonwealth v. Jemison , 626 Pa. 489, 502, 98 A. 3d 1254, 1261–1262 (2014). Moreover, defendants will su ffer that prejudicial harm for little benefit. Determin ing whether the defendant has a prior conviction for a parti cular offense will generally yield an obvious answer from the record (or lack thereof ) of the prior conviction. Important as the judgment of the jury usually is, I struggle to imagine a jury making a different (or at least a more accurate) finding than a judge on the question of whether a defendant was previously convicted of a crime. 8 As explained above, this case is a prime example. And even if one could stretch the imagination farenough to conceive of a case in which sending the priorconviction issue to the jury makes a difference and produces a more accurate answer, it would certainly not be a sufficiently frequent occurrence to create a pressing need to overrule precedent. Nor has Almendarez-Torres caused any jurisprudential confusion. Erlinger suggests that the logic of Apprendi undermines Almendarez-Torres . But Apprendi itself

——————

8 To be clear, in a recidivism proceeding (whether at trial or sentencing), a defendant ordinarily cannot challenge the underlying validity of the prior conviction—for example, by arguing that the prior conviction was infect ed by error. See Parke v. Raley , 506 U. S. 20, 29–30 (1992). Challenges to the underlying validity of a prior conviction typically must be made in the appeal or habeas corpus proceedings regarding that prior conviction.21 Cite as: 602 U. S. ____ (2024)

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reconciled the two cases. In ruling the way that it did on present crimes, Apprendi explained at length why Almendarez-Torres raised a distinct issue about past crimes. That line—between the present crime and the past crimes—is clear and has been eminently workable. For sentencing purposes, a judge can find that a defendant was convicted of past crimes, including the who, what, when, and where of those crimes. It is as easy as that. The Apprendi rule and Almendarez-Torres rule easily co-exist and have for 24 years co-existed as a matter of Sixth Amendment law. See Apprendi v. New Jersey , 530 U. S. 466, 487–490 (2000). And today’s decision does not alter the basic ease of applying Almendarez-Torres . Today’s decision, although I disagree with it, is a clear and easily administered carveout from Almendarez-Torres

. Second , as to reliance, the State and Federal Governments possess substantial reliance interests in their existing sentencing schemes. “Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times.” Parke , 506 U. S., at 26. By 1992, all 50 States and the Federal Government had recidivism sentencing enhancements. Id. , at 26–27. State judges apply many of those state recidivism sentencing enhancements, as federal judges do in ACCA. See, e.g. , N. J. Stat. Ann. §2C:44–3(a) (West 2016); 42 Pa. Cons. Stat. §9714(a)(2) (2019); R. I. Gen. Laws §12–19–21 (2002). Overruling Almendarez-Torres would upend that settled practice. Legislatures across the country would have to choose among various bad options. They could undermine the longstanding limits on introducing evidence at trial of past crimes. They could je ttison longstanding sentencing enhancements for recidivists. They could mandate costly and inefficient bifurcated trials in cases with a recidivism22 ERLINGER v. UNITED STATES

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AVANAUGH , J., dissenting enhancement, a fairly dramatic change to day-to-day criminal trial practice in many jurisdictions. Or they could simply enact discretionary sentencing regimes and authorize sentences within a broad range for most crimes, leaving to judges’ discretion the choice within that range. See Apprendi , 530 U. S., at 490, n. 16. Any of those options would be a big change—and on top of that, several would actually be unhelpful to criminal defendants. To what end? There would be little (really nothing) to gain by overruling Almendarez-Torres now, after 26 years of settled federal and state practice relying on and easily applying it. It is difficult to conceive of a stronger case for stare decisis than a longstanding rule with substantial systemic benefits, ease of application, no apparent downside for criminal defendants, and significant reliance interests. This Court should adhere to Almendarez-Torres ’s settled rule.

* * * As to the Court’s conclusion that a jury must determine whether the defendant’s three prior violent felonies were committed on different occasi ons, I respectfully dissent._________________

_________________ 1 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 23–370

PAUL ERLINGER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[June 21, 2024]

J USTICE J ACKSON , dissenting. In the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e), Congress directed sentencing judges to conduct a “multi-factored” inquiry into “a range of circumstances” to determine whether a particula r defendant’s criminal his

tory suggests that he is the sort of “ ‘revolving door’ felo[n]” that ACCA was designed to target. Wooden v. United States , 595 U. S. 360, 369, 375 (2022); see also §924(e)(1). Those kinds of findings have hi storically been deemed well within the capacity of a sentencing judge. See AlmendarezTorres v. United States , 523 U. S. 224, 243–244 (1998). To

day, the Court concludes that Apprendi v. New Jersey , 530 U. S. 466 (2000), must be read to suggest otherwise— i.e., that under Apprendi , for sentencing purposes, facts that re

late to a defendant’s prior cri mes cannot be determined by judges but instead must be found by juries. I disagree for several reasons, including my overarching view that Ap

prendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority wh en it empowers judges to make factual determinations re lated to punishment and di

rects that a particular sentencing result follow from such findings. 1

——————

1 Critiques of the Apprendi Court’s misguided constitutional analysis have been covered at le ngth elsewhere. See, e

. g ., Apprendi v. New Jersey

, 530 U. S. 466, 524–536 (2000) (O’Connor, J., dissenting); id ., at 559–5612 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting I recognize, of course, that Apprendi is a binding prece

dent of this Court, and one that “has now defined the rele

vant legal regime” for nearly a quarter century. Alleyne v. United States , 570 U. S. 99, 122 (2013) (Breyer, J., concur

ring in part and concurring in judgment). Given that real

ity, untangling the knots Apprendi has tied is probably in

feasible at this point in our Court’s jurisprudential journey. But considering the flaws inherent in Apprendi ’s approach, I cannot join today’s effort to further extend Apprendi ’s holding, particularly when there is a well-established recid

ivism exception to the Apprendi rule that applies to the cir

cumstances of the case before us now. I agree with J USTICE K AVANAUGH that, all things consid

ered, the Court errs in concluding today that ACCA’s occa

sions inquiry must be decided by a jury. See ante, at 3–9 (dissenting opinion). I write separately to provide an addi

tional critical perspective on the Apprendi doctrine—one that is informed by how senten cing has actually worked on the ground, before and after Apprendi —and to note that ap

plying the Apprendi rule to ACCA’s occasions finding cre

ates all sorts of practical problems that are easily avoided by simply allowing judges to do what they have always done. Because the Court pushes the flawed Apprendi rule past where it needs to go, and, incidentally, establishes a procedural requirement that is likely impossible to imple

ment in real life, I respectfully dissent.

I
In Apprendi , this Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be

—————— (Breyer, J., dissenting); Blakely v. Washington , 542 U. S. 296, 321 (2004) (O’Connor, J., dissenting); id ., at 326–327 (Kennedy, J., dissenting); id

., at 340–346 (Breyer, J., dissenting); S. Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097 (2001).3 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. For the reasons others have skillfully ar

ticulated, see n. 1, supra , and also the reasons that follow, I think the Apprendi Court was wrong to interpret the Sixth Amendment’s jury-trial guarantee to limit legislatures’ ability to define crimes and give judges discretion to set ap

propriate punishments based on findings of fact. Apprendi and its ilk have also needle ssly hampered Congress’s and state legislatures’ pursuit of a fairer and more rational sen

tencing system.

A Our Constitution “protects th e accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U. S. 358, 364 (1970). At the outset, it is important to take note of the scope of this constitutional protection as it has traditionally been recognized and un

derstood: It is a protection against conviction without the necessary facts having been established beyond a reasona

ble doubt. Ibid . That is not the same as a protection against being sentenced to a certain level of punishment un

less the facts that are relevant to that sentencing determi

nation have been proved to a jury consistent with the rea

sonable-doubt standard. The facts that must be proved before a defendant can be convicted are often called elements. See United States v. Gaudin , 515 U. S. 506, 510 (1995). Traditionally, “the ele

ments of a crime are its requisite (a) conduct (act or omis

sion to act) and (b) mental fault (except for strict liability crimes)—plus, often, (c) specified attendant circumstances, and, sometimes, (d) a specified result of the conduct.” 1 W. LaFave, Substantive Criminal Law §1.8(b), p. 103, n. 14 (3d ed. 2018); see also 1 J. Ohlin, Wharton’s Criminal Law §3:1, pp. 48–49 (16th ed. 2021). As the majority correctly recog

nizes, such elemental facts have always been in the purview4 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting of the jury. See ante, at 7. The Sixth Amendment’s jurytrial guarantee reflects this well-established understanding of the jury’s domain. See Sullivan v. Louisiana , 508 U. S. 275, 277–278 (1993). Although sometimes the “determination of what ele

ments constitute a crime . . . is subject to dispute,” Gaudin

, 515 U. S., at 525 (Rehnquist, C. J., concurring), it is clear that “[o]nly the people’s elected representatives in the leg

islature are authorized to ‘make an act a crime,’ ” United States v. Davis , 588 U. S. 445, 451 (2019) (quoting United States v. Hudson , 7 Cranch 32, 34 (1812)). It follows that

“ ‘[t]he definition of the elements of a criminal offense is en

trusted to the legislature.’ ” Staples v. United States , 511 U. S. 600, 604 (1994) (quoting Liparota v. United States

, 471 U. S. 419, 424 (1985); alteration in original). For that reason, this Court—at least until recent times—generally deferred to legislative judgme nts about which facts consti

tute elements of the offense. See McMillan v. Pennsylva

nia , 477 U. S. 79, 85 (1986) (“[I]n determining what facts must be proved beyond a reasonable doubt the . . . legisla

ture’s definition of the elements . . . is usually dispositive”). Once a defendant has been found guilty of a crime— i

. e ., once a jury has made the requisite factual findings estab

lishing the elements of the crime—judges have traditionally been entrusted with substantial discretion to impose the appropriate sentence. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998). Indeed, at the dawn of our Republic, the very first Congress enacted many criminal laws that prescribed a range of possible punishments, leaving it to judges to deter

mine the proper sentence. See An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112–118; see also R. Little & T. Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed.5 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
Sentencing Rep. 69, 72 (2004). 2 Significantly for present purposes, judges were thought to “inherently possess ample ri ght to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority” in deciding w hat punishment to impose. Ex parte United States , 242 U. S. 27, 41–42 (1916). In fact, a judge’s determination of the appropriate sentence was long considered to be unreviewabl e in most circumstances. See Dorszynski v. United States , 418 U. S. 424, 431 (1974). When exercising their senten cing authority, judges were also presumed to have the power to find and consider nearly any fact deemed relevant to th e penalty. “[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 deter

mining the kind and extent of punishment to be imposed within limits fixed by law.” Williams v. New York , 337 U. S. 241, 246 (1949). A sentencing judge might find, for exam

ple, that a defendant lacked remorse for his crime, or that the conduct underlying the crime was particularly heinous, and sentence the defendant accordingly. See id ., at 247. All of those kinds of factual determ inations were considered to be important factors for imposing the sentence that a per

son who had been found guilty of a criminal act would be required to serve. And none of them were thought to be subject to the Sixth Amendment’s jury-trial right. By the late 19th century, sentencing schemes grew more

——————

2 For example, the First Congress declared that misprision ( i

. e ., con

cealment) of a felony was punishable by “imprison[ment] not exceeding three years” and a “fin[e] not exceeding five hundred dollars.” §6, 1 Stat. 113. Stealing or falsifying court records was punishable by “im

prison[ment] not exceeding seven ye ars” and “whipp[in g] not exceeding thirty-nine stripes.” §15, id., at 115–116. At least 14 other federal crimes enacted during this time gave judges discretion over similar sentencing ranges. See Little & Chen, 17 Fed. Sentencing Rep., at 72.6 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting complex, with the vast majority of States and the Federal Government adopting so-calle d indeterminate sentencing systems. A. Campbell, Law of Sentencing §§1:2–1:3, pp. 9– 10 (3d ed. 2004) (Campbell). In those jurisdictions, “[u]sing broad discretion, trial courts imposed minimum and maxi

mum [sentences] based on judicial estimates of how long it would take to rehabilitate crimi nal offenders,” which parole boards then used to determine when an offender would be released. Id ., §1:3, at 10. There, too, judges were given wide authority to determine an appropriate sentencing range, and to do so based on judicial findings of fact. In fact, “judges were encouraged to weigh the character of the indi

vidual offender along with the nature of the offense when imposing sentence,” id ., §1:2, at 9, considerations that are immensely factbound. That judges rather that juries made these factual findings was not thought to be constitution

ally problematic. Critically, the nature of factf inding proceedings before a judge at sentencing was—and still is—fundamentally dif

ferent from the factfinding that a jury engages in. Jury factfinding at trial “always ha[s] been hedged in by strict evidentiary procedural limitations.” Williams , 337 U. S., at 246. By contrast, such limitations have not, as a general matter, applied to judges when they find facts for sentenc

ing purposes. See ibid . Instead, a sentencing judge has al

ways been expected to consider a wide range of infor

mation—really, anything relevant to assessing the appropriate penalty—when determining a sentence. The difference between jury factfinding at trial and judi

cial factfinding for sentencing makes perfect sense. “Typi

cally, trial disputes center on pa rticular issues of historical fact,” and juries accordingly “receive limited information and must choose from limited options to resolve disputed issues.” D. Berman & S. Bibas, Making Sentencing Sensi

ble, 4 Ohio St. J. Crim. L. 37, 54 (2006). As a result, “[r]ules of evidence have been fashioned for criminal trials which7 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged.” Williams , 337 U. S., at 246–247. “A sentencing judge, however, is not con

fined to the narrow issue of gu ilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined.” Id ., at 247. Thus, sentencing judges “receiv[e] a range of information about both the offense and the of

fender and can choose from various possible dispositions.” Berman & Bibas, 4 Ohio St. J. Crim. L., at 55. “Highly rel

evant—if not essential—to [a judge’s] selection of an appro

priate sentence is the possession of the fullest information possible concerning the defendant’s life and characteris

tics.” Williams , 337 U. S., at 247. The upshot is that, traditionally, judges and juries have not only played different factfinding roles, they have also utilized different tools to carry out those duties. And far from being ill equipped to find facts for punishment pur

poses, judges have long been regarded as having both the power and the institutional competency to determine the factual bases for the imposition of sentences. Again: This judicial authority has traditionally included the ability to make findings of fact related to both an offender’s charac

teristics and the criminal conduct at issue as necessary to determine an appropriate sentence—all while relying on a wide range of evidence. Historically, none of this was thought to conflict with or usurp the jury’s distinct role of determining guilt or innocence.

B Over time, however, legislat ures became concerned with “the almost wholly unchecked and sweeping powers . . . give[n] to judges in the fashioning of sentences.” M. Frankel, Criminal Sentences: Law Without Order 5 (1973). “[L]egislators . . . decried the perceived inequity of incarcer

ating some offenders longer than others for the same8 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
crime,” as well as the possibilit y that discriminatory consid

erations such as race and sex were playing a role in judges’ sentencing determinations. Campbell §1:3, at 11; see also S. Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 4–5 (1988). “The length of time a person spent in prison appeared to depend on ‘what the judge ate for breakfast’ on the day of sentencing, on which judge you got, or on other factors that should not have made a difference to the length of the sentence.” Blakely v. Washington , 542 U. S. 296, 332 (2004) (Breyer, J., dissenting). Out of this unregulated environment emerged a legisla

tive development—the identification of what are commonly referred to as “sentencing facto rs” (also known as “sentenc

ing facts”). In an effort “to bring more order and consistency to the [sentencing] process,” Congress and state legisla

tures “sought to move from a system of indeterminate sen

tencing or a grant of vast discretion to the trial judge to a regime in which there [were] more uniform penalties, pre

scribed by the legislature.” Jones v. United States , 526 U. S. 227, 271 (1999) (Kennedy, J., dissenting). Legisla

tures recognized that, although judges are fully competent to find facts and exercise di scretion when sentencing, too much discretion could create unwarranted disparities and therefore have detrimental e ffects. New sentencing re

gimes were implemented to cabin sentencing discretion by “directly limit[ing] the use . . . of particular factors in sen

tencing” and “by specifying statutorily how a particular fac

tor [would] affect the sentence.” Apprendi , 530 U. S., at 560 (Breyer, J., dissenting). Legislatures sometimes specified, for example, “that a particular factor, say, use of a weapon, recidivism, injury to a victim, or bad motive, ‘shall’ increase, or ‘may’ increase, a particular sentence in a particular way.” Ibid . Conversely, legislatures also directed judges to disregard certain facts, including those that were deemed irrelevant for sentencing9 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting purposes. See 28 U. S. C. §994(d) (directing the U. S. Sen

tencing Commission to consider whether age, education, vo

cational skills, and other factors are relevant to sentenc

ing); United States Sentencing Commission, Guidelines Manual §§5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting that education, drug or al cohol dependence, employment record, and family ties are ordinarily not relevant in deter

mining the length of a sentence); see also, e

. g ., Wash. Rev. Code §9.94A.535(e) (2023) (excluding “[v]oluntary use of drugs and alcohol” as a potential mitigating factor). These structured sentencing schemes were not adopted “to manipulate the statutory el ements of criminal offenses or to circumvent the procedural protections of the Bill of Rights.” Blakely , 542 U. S., at 316 (O’Connor, J., dissent

ing). Rather, Congress and the States that adopted these rules did so against a backdrop of unbounded judicial dis

cretion that had proved, in their view, to be unwieldy, un

fair, and unwise. Accordingly, the goal of legislative efforts in this regard was to constrain judicial discretion by chan

neling the accepted competency of judges to set appropriate sentences toward the objective of achieving more consistent and more equitable outcomes. This Court dealt a significant blow to these legislative at

tempts to promote fairness and consistency in sentencing with its decision in Apprendi . As I previously noted, we concluded—for the first time in history—that “[o]ther than the fact of a prior conviction, any fact that increases the penalty of a crime beyond the prescribed statutory maxi

mum” is an element that “must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490. We later extended that rule to cover any “finding of fact” that “alters the legally prescribed punishment so as to aggravate it,” because—in the Court’s view—that “fact necessarily forms a constituent part of a new offense and must be sub

mitted to the jury.” Alleyne , 570 U. S., at 114–115. By now, the Apprendi rule has been applied to a litany of10 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
punishments other than incarceration. See ante, at 9. Through these cases, the Court has “embrace[d] a universal and seemingly bright-line rule limiting the power of Con

gress and state legislatures to define criminal offenses and the sentences that follow from convictions thereunder.” Ap

prendi , 530 U. S., at 525 (O’Connor, J., dissenting). By any measure, “[t]he impact of Apprendi and its progeny has been extraordinary, disrupting sentences and prompting new [corrective] legislation across the nation.” 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.4(i), p. 1011 (4th ed. 2015).

II A I was not a Member of the Court during these develop

ments. In my view, however, the Court made a serious mis

take when it conflated elements and sentencing factors in this way. As others have argued, “[t]he Court’s basic error in Apprendi . . . was its failure to recognize the law’s tradi

tional distinction between elem ents of a crime (facts consti

tuting the crime, typically for the jury to determine) and sentencing facts (facts affecting the sentence, often concern

ing, e

. g ., the manner in which the offender committed the crime, and typically for the judge to determine).” Alleyne

, 570 U. S., at 122 (Breyer, J., concurring in part and concur

ring in judgment). The Sixth Amendment’s jury-trial right “guarantees a jury’s determination of facts that constitute the elements of a crime”—no more and no less. Id ., at 123. To be fair, the principal justification that has been given for Apprendi ’s conflation of elements and sentencing factors is a historical one. See, e

. g ., ante, at 5–6; Alleyne , 570 U. S., at 108–111 (opinion of T HOMAS , J.). The account that has been provided in some of the Court’s opinions is that, during the founding era, “ ‘[o]nce the facts of the offense were de

termined by the jury, the judge was meant simply to impose the prescribed sentence.’ ” Ante , at 7 (quoting United States11 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting

v. Haymond , 588 U. S. 634, 642 (2019) (plurality opinion); alteration in original). But the accuracy of this historical account is debatable. See n. 2, supra . Scholars have sug

gested that, far from the simplistic picture painted by the Court in Apprendi , the historical “tradition was not uni

form, suggesting that the common law had no fixed rule on the subject.” S. Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097, 1129 (2001); see also, e

. g ., id ., at 1123–1132; Little & Chen, 17 Fed. Sentencing Rep., at 69–70; J. Mitchell, Ap

prendi’s Domain, 2006 S. Ct. Rev. 297, 298–299. In any event, the Constitution itself does not mention sentencing at all—let alone the work of courts when sen

tencing—and it certainly “does not freeze 19th-century sen

tencing practices into permanent law.” Apprendi , 530 U. S., at 559 (Breyer, J., dissenting). Moreover, “[a]n essential as

pect of the Constitution’s endurance is that it empowers the political branches to address new challenges by enacting new laws and policies.” Consumer Financial Protection Bu

reau v. Community Financial Services Assn. of America, Ltd. , 601 U. S. 416, 446 (2024) (J ACKSON , J., concurring). In my view, the People’s elected representatives should be able to pursue new and innova tive approaches to sentenc

ing and sentencing reform “without undue interference by courts,” ibid ., especially given that unfair and disparate sentences are a persistent societal problem that the legisla

ture is indisputably authorized to address. Nor is there a functional, policy-based justification for the constitutional rule that Apprendi and its progeny en

shrined. The Court has repeatedly characterized Apprendi as preserving “the right of jury trial” in the past, Blakely

, 542 U. S., at 305, and persists with that mantra to this day, ante, at 5–8. As the reasoning goes, because the Apprendi rule recognizes that it is “ ‘unconstitutional for a legislature to remove from the jury the assessment of facts that in

crease the prescribed range of penalties to which a criminal12 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
defendant is exposed,’ ” 570 U. S., at 490, Apprendi “pre

serves the historic role of the jury as an intermediary be

tween the State and criminal defendants,” Alleyne , 570 U. S., at 114. But, in reality, the Apprendi rule does no such thing. A sentencing judge today remains free, consistent with Ap

prendi , to impose any punishment within a prescribed sen

tencing range based on whatever facts she deems relevant. See 530 U. S., at 481 (conceding that judges may “exercise discretion—taking into consid eration various factors relat

ing both to offense and offe nder—in imposing a judgment within the range prescribed” (emphasis deleted)). So, “[u]nder the Apprendi doctrine, the jury plays only one role with respect to sentencing, and it is an indirect one: If the defendant does not plead guilty, then the jury must deter

mine the presence or absence of the verdict facts that oper

ate to constrain the outer limit of the judge’s authority to impose sentence.” B. Priester, Apprendi Land Becomes Bi

zarro World: “Policy Nullificat ion” and Other Surreal Doc

trines in the New Constitutional Law of Sentencing, 51 Santa Clara L. Rev. 1, 47 (2011) (emphasis added). Mean

while, the judge continues to be the sole decisionmaker with respect to determining the facts she will rely upon to sen

tence within the typically broad statutory sentencing range. See United States v. Booker , 543 U. S. 220, 246 (2005). “The jury plays no role in extrave rdict factfinding, nor in calcu

lating the specific sentence to be imposed within the outer limit authorized by the verdict facts.” Priester, 51 Santa Clara L. Rev., at 48.

Apprendi ’s distinction between permissible and imper

missible judicial factfinding therefore neither aligns with the doctrine’s rationale nor achiev es its stated goals. As a result, the Apprendi rule does little actual work. Even after Apprendi , a sentencing judge can still find and consider any fact—including sentencing factors defined by the legisla

-13 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting ture—so long as the consequence of that fact is not manda

tory but rather left to the judge’s discretion. And after Ap

prendi , just as before, criminal defendants routinely stipu

late to facts that are relevant to statutory maximums andminimums as part of binding plea agreements, making factfinding with respect to these ne wfound elements irrelevant. So, really, the only change that Apprendi has wrought is that legislatures may no longer limit judicial discretion as a matter of law by requiring that a particular sentencing fact have a particular effect on the sentence. See Blakely

, 542 U. S., at 303–304. At bottom, then, all the Apprendi doctrine has done is “shiel[d] the sentencing power of judges from legislative en

croachment.” Priester, 51 Santa Clara L. Rev., at 49. Given this, it is no wonder that, for all its exhortations about the right to jury factfinding for sentencing purposes, the Ap

prendi line of cases appears to have had no appreciable ef

fect on “the number of criminal jury trials” or on “the num

ber of sentence-affecting facts decided by juries in those trials that do occur.” F. Bowman, Debacle: How the Su

preme Court Has Mangled American Sentencing Law and How It Might Yet Be Mended, 77 U. Chi. L. Rev. 367, 461 (2010).

B In terms of the impact on the functioning of our criminal justice system, however, the consequences of the Court’s de

cisions in this area have been palpable. Most notably for present purposes, Apprendi has prevented legislatures from developing innovative methods to achieve fairness in sentencing and thus, in my view, has stunted our collective pursuit of justice. What I mean by this is that, while “[l]eg

islatures may set the available penalties for offenses using verdict facts,” they must now be essentially hands off “once that scope of punishment is established.” Priester, 51 Santa Clara L. Rev., at 50. Far from the mystical myth that14 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
the Sixth Amendment vests juries with sentencing power, the reality is that, through its Apprendi doctrine, the Court has merely managed to oust the legislature from its rightful place in the sentencing polic y sphere, thereby effectively “insist[ing] that the power to consider sentencing facts and assess their normative worth must rest [solely] with judges.” Priester, 51 Santa Clara L. Rev., at 50. The People’s representatives are left with “a binary choice” when crafting legislation due to the Apprendi doc

trine—“a fact is either of a type that triggers the full pano

ply of procedural protections that comes with the Sixth Amendment jury-trial right, or it is of no constitutional con

sequence and can be found and relied on by a judge with virtually no procedural safeguards at all.” Bowman, 77 U. Chi. L. Rev., at 466; see also Blakely , 542 U. S., at 330– 340 (Breyer, J., dissenting) (outlining the limited options that legislatures have, all of which “ris[k] either impracti

cality, unfairness, or harm to the jury trial right”). But not every fact fits neatly into this dichotomy. Moreover, and importantly, judges and juries engage with facts differently in the context of their distinct roles. “Juries provide democratic legitimacy, common sense, and fresh perspectives.” Berman & Bibas, 4 Ohio St. J. Crim. L., at 62. Meanwhile, “[j]udges are experts, can more effectively and consistently apply complex rules, and have flexibility in how they consider evidence.” Id ., at 62–63. But under the Apprendi rule, the policymaking branches of our government can no longer devise more nuanced, crea

tive approaches to factfinding at sentencing that better re

flect the differing competencies of jurors and judges.In short, the Court’s all-or-nothing approach to the jurytrial right in Apprendi and its kin “pose[s] a serious obstacle to [legislative] efforts to creat e a sentencing law that would mandate more similar treatment of like offenders, that would thereby diminish sentencing disparity, and that15 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
would consequently help to ov ercome irrational discrimina

tion (including racial discrimination) in sentencing.” Booker , 543 U. S., at 329 (Breyer, J., dissenting in part). The Court has also “deprive[d] Congress and state legisla

tures of authority that is constitutionally theirs.” Id ., at 330.

C I recognize that many criminal defendants and their ad

vocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing. In no way am I suggesting that the defense bar has “been ‘somehow duped’ into advocati ng for a rule that would be ‘unfair to criminal defendants.’ ” Ante, at 24 (quoting Blakely , 542 U. S., at 312). Defendants’ embrace of the Ap

prendi doctrine is perfectly ra tional because procedural rights like the right to have a jury determine certain sen

tencing facts “hel[p] some de fendants—and probably rais[e] the overall level of defense victories—by giving their law

yers claims and arguments that otherwise would not exist.” W. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L. J. 1, 45 (1997). In my view, however, the benefit that some criminal de

fendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative sys

temic effects that Apprendi has wrought, when compared to “the greater fairness of a sentencing system that a more uniform correspondence between real criminal conduct and real punishment helps to create.” Blakely , 542 U. S., at 338 (Breyer, J., dissenting). An individual defendant may, of course, benefit from a reduced sentence based on a jury’s verdict under the Apprendi rule, but that favorable outcome for one person does little to ensure systemic fairness, con

sistency, and transparency in sentencing. See Stuntz, 107 Yale L. J., at 75. The U. S. Sentencing Commission has documented the16 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
impact of the Apprendi rule in the wake of our decision in United States v. Booker , 543 U. S. 220, which applied Ap

prendi to the Federal Sentencing Guidelines. In Booker , we found certain judicial factfindi ng in the Guidelines context unconstitutional under Apprendi , but to remedy that viola

tion, we also held that the Guidelines must be treated as advisory rather than mandatory. 543 U. S., at 244–245. Af

ter Booker , sentencing disparities of all manner have in

creased significantly. Otherwise similarly situated defend

ants appear to receive vastly different sentences depending on the court in which they are prosecuted and what judge is assigned to their case. See, e

. g ., United States Sentenc

ing Commission, Inter-District Differences in Federal Sen

tencing Practices 7 (Jan. 2020) (“Variations in sentencing practices across districts increas ed in the wake of the Su

preme Court’s 2005 decision in Booker ”); United States Sen

tencing Commission, Intra-City Differences in Federal Sen

tencing Practices 7 (Jan. 2019) (“In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case”). Given the history of sentencing reform in our Nation, see Part I–B, supra , it was foreseeable that Apprendi ’s interfer

ence with legislative control over judicial sentencing discre

tion would contribute to these kinds of disparities. Among the evidence that has been amassed concerning Apprendi ’s negative downstream impact on sentencing fair

ness, one statistic is particula rly sobering: In the federal criminal justice system, racial disparities in sentencing have been a persistent problem, but the gap between simi

larly situated Black and White male defendants “was nar

rowest” before the Court applied Apprendi to the Guide

lines. K. Klein & S. Klein, A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities? 99 N. C. L. Rev. 1391, 141217 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
(2021); see also United States Sentencing Commission, De

mographic Differences in Sent encing: An Update to the 2012 Booker Report 6 (Nov. 2017). And Apprendi appears to have made things appreciably worse. See Klein & Klein, 99 N. C. L. Rev., at 1412 (“Currently, for every fifty-one months a judge gives a White man, a similarly situated Black man receives eight more”). So, while the defense bar might like Apprendi because its rule can benefit individual defe ndants in certain cases, that rule might also be inhibiting our collective achievement of a fairer sentencing system more broadly. I do acknowledge, however, that there are risks involved with legislative innovation in this area, since not all legis

lative action in the sentencing realm will be made in pur

suit of greater systemic fairness. Legislatures are some

times incentivized to adopt mo re punitive measures, such as mandatory minimums or severe recidivism-based sen

tencing enhancements. See W. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 530–531 (2001). And at least in some circumstances, the Apprendi rule operates to blunt such measures. See Alleyne , 570 U. S., at 123–124 (Breyer, J., concurring in part and con

curring in judgment). But problems created by the legisla

ture can also be addressed th rough the democratic process; indeed, legislators have recent ly retreated from harsh sen

tencing laws. See, e.g., First Step Act of 2018, Pub. L. 115– 391, 132 Stat. 5194; see also Pulsifer v. United States , 601 U. S. 124, 155 (2024) (G ORSUCH , J., dissenting) (discussing the First Step Act’s attempt to “recalibrate [Congress’s] ap

proach” to sentencing). Meanwhile, Apprendi ’s constitu

tional rule operates to cons train legislative reforms while also potentially perpetuating the unfairness caused by un

warranted disparities. To be clear, my skepticism of Apprendi should not be taken to suggest that I believe that legislatures should have unbridled authority to write la ws that distinguish between18 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting sentencing factors and elements. There is, of course, “a risk of unfairness involved in permitting [legislatures] to make this labeling decision.” Blakely , 542 U. S., at 344 (Breyer, J., dissenting). Sentencing policymakers could, perhaps, “permit [a sentencing factor] to be a tail which wags the dog of the substantive offense.” McMillan , 477 U. S., at 88. For example, in the most extreme circumstances, a legislature “might permit a judge to sentence an individual for murder though convicted only of maki ng an illegal lane change.” Blakely , 542 U. S., at 344 (Breyer, J., dissenting). But, to me, the most logical solution to that problem is not to invoke the jury-trial right, as the Court has held. “The jury-trial right addresses only who makes certain de

terminations, not how these determinations are made.” Berman & Bibas, 4 Ohio St. J. Crim. L., at 58–59; see also Bibas, 110 Yale L. J., at 1177–1180. By contrast, “the Due Process Clause is well suited” to address unfair sentencing procedures. Blakely , 542 U. S., at 344 (Breyer, J., dissent

ing); see also Morrissey v. Brewer , 408 U. S. 471, 481 (1972) (“[D]ue process is flexible and calls for such procedural pro

tections as the particular situation demands”). Other con

stitutional provisions, like th e Eighth Amendment’s prohi

bition against excessive fines and cruel and unusual punishments, also play an obvious role in limiting the types of punishments that can be imposed based on sentencing factors. See, e

. g ., Ring v. Arizona , 536 U. S. 584, 619 (2002) (Breyer, J., concurring in judgment); United States v. Ba

jakajian , 524 U. S. 321, 334–335 (1998). In other words, to my mind, not every sentencing problem is a nail requiring an Apprendi hammer. To the contrary, applying Apprendi to address these and other concerns seems to simply erect further roadblocks for policymakers who might otherwise act to promote more fairness in sen

tencing.19 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting

III So what do my concerns about Apprendi have to do with my analysis of the question presented in this case? The doubts I have make me reluctant to join a ruling that ex

tends Apprendi ’s holding unnecessarily. And, here, we need not conclude that the occasions finding in ACCA is one to which the Apprendi rule applies, as J USTICE K AVANAUGH explains. Ante, at 3 (dissenting opinion). Indeed, we have already recognized that “[j]ud ges may,” consistent with the Apprendi rule, “resolve questions about a defendant’s past crimes . . . that are relevant not to the defendant’s guilt for the present offense but rather to the length of the defend

ant’s sentence.” Ante , at 3; see also Almendarez-Torres , 523 U. S., at 239, 247. I will use this opportunity to make one additional obser

vation: Not only is the majority’s approach to ACCA’s occa

sions finding inconsistent with our precedent (as J USTICE K

AVANAUGH observes, ante, at 3–4), it is also unworkable in practice, due to the limitations inherent in jury presen

tations. That is, for all the majority’s talk of constitutional theory, it gives little thought to “proportionality, uni

formity, and administrability,” which “are all aspects of that basic ‘fairness’ that the Constitution demands.” Ap

prendi , 530 U. S., at 559 (Breyer, J., dissenting). As a reminder, ACCA directs se ntencing courts to impose a 15-year mandatory minimum for a violation of 18 U. S. C. §922(g) if the defendant has three qualifying prior convic

tions “committed on occasions different from one another.” 18 U. S. C. §924(e)(1). In Wooden , we explained that ACCA’s occasions finding is not a simple up-or-down assess

ment; rather, the factfinder must consider “a range of cir

cumstances,” including the timing, location, character, and relationship of the crimes. 595 U. S., at 369. The majority now concludes that, “given the intensely factual nature of this inquiry . . . , a jury must resolve it.” Ante, at 4. I come to exactly the opposite conclusion, based on the nature of20 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting the factfinding that judges and juries engage in—and their relative competencies. In my view, “the intensely factual nature of this inquiry,” ibid ., when combined with the fact that ACCA’s occasions finding often pertains to long-past prior criminal behavior by the defendant, is precisely why a jury is poorly situated to make such a finding, as opposed to a judge. As I explain below, the particular factfinding determination that the occasi ons inquiry requires is unsuit

able for juries to decide in terms of both fairness and effi

ciency—two crucial criteria fo r procedural requirements in a criminal justice system.

A As to fairness, ACCA’s occasions determination involves facts about a defendant’s past crimes that can prejudice the jury against the defendant and thereby make it more diffi

cult for the jury to find in th e defendant’s favor with respect to the occasions issue. Past criminality on a defendant’s part “is a traditional, if not the most traditional, basis for a sentencing court’s in

creasing an offender’s sentence.” Almendarez-Torres , 523 U. S., at 243. And there is a good reason judges have long been entrusted with finding facts related to recidivism—be

cause “the introduction of evidence of a defendant’s prior crimes” to a jury “risks significant prejudice.” Id ., at 235. This Court has specifically recognized the substantial risk of “generalizing a defendant’s earlier bad act into bad char

acter and taking that as raising the odds that he did the later bad act now charged.” Old Chief v. United States , 519 U. S. 172, 180–181 (1997). Empirical research has further confirmed the commonsense conclusion that criminal his

tory is prejudicial. See, e

. g ., T. Eisenberg & V. Hans, Tak

ing a Stand on Taking the Stand: The Effect of a Prior Crim

inal Record on the Decision To Testify and on Trial Outcomes, 94 Cornell L. Rev. 1353, 1357 (2009) (“Juries ap

-21 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
pear to rely on criminal reco rds to convict when other evi

dence in the case normally would not support conviction”). As J USTICE K AVANAUGH notes, such fairness concerns have long compelled courts to keep facts concerning a de

fendant’s criminal history away from juries. Ante, at 16– 17. “Courts that follow the common-law tradition almost unanimously have come to disa llow resort by the prosecu

tion to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.” Michelson v. United States , 335 U. S. 469, 475 (1948). This principle—that ju

ries would be prejudiced by exposure to a defendant’s crim

inal history—is, in fact, a cornerstone of criminal proce

dure. 3 The majority seems to agree that past-crimes evidence is prejudicial, at least to a certain extent. It says that, when ACCA’s occasions inquiry is set for jury determination un

der the Apprendi rule (as we require today), trial courts will need “to address the prejudicial effect evidence about a de

fendant’s past crimes can have on a jury.” Ante, at 24. In the majority’s view, however, the “[m]ost obviou[s]” solution is bifurcating the proceedings between the §922(g) charge and ACCA’s occasions determination. Ibid . But bifurcation is not an easy fix, as J USTICE K AVANAUGH explains. Ante

, at 18. For one thing, bifurcation of trial proceedings im

poses significant additional burdens on the criminal justice system. Ibid . I will point to an additional problem: Even

——————

3 For example, this Court has held that, when a defendant stipulates to the existence of a prior conviction, the prosecution may not introduce evidence of the underlying fa cts for that conviction. Old Chief , 519 U. S., at 191. Similarly, we have recognized that prosecutors may not comment on a defendant’s refusal to testify, given that such a refusal may stem from a concern that his prior convictions will be used to impeach him and thus prejudice the jury. See Griffin v. California , 380 U. S. 609, 615(1965). The suggestion that juries should now engage in rigorous factfinding with respect to a defendant’s criminal history is in tension with these prior pronouncements.22 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting bifurcation may not suffice to completely eliminate poten

tial juror prejudice with respect to the occasions finding. Consider, if you will, the kinds of evidence the prosecu

tion might ask a jury to evaluate in a bifurcated trial over (the comparatively pedestrian) question whether a defend

ant’s prior crimes were committe d on different occasions. Also imagine the defendant’s potential arguments in re

sponse. Concerning the latter, in this case, Erlinger’s coun

sel suggested that his past crimes—three burglaries that occurred on different dates ov er an 8-day period—could con

ceivably constitute a single occasion of criminality if those break-ins were all committed “to get money to pay [a] gam

bling debt.” Tr. of Oral Arg. 25. Under Wooden’ s inquiry, however, any jury making the occasions determination in this case would not be directed just to consider whether Erlinger did, in fact, have a gambling problem—they would also have to determine exactly what happened during each of Erlinger’s burglaries. The jury would be called upon to assess Erlinger’s credi

bility and decide whether they believed his gambling-debt story in light of his criminality, and the potential prejudice from entertaining evidence about all the sordid details of Erlinger’s underlying crimes makes a fair credibility find

ing much more difficult. In other words, Erlinger’s past criminal behavior, and the fact that he was previously con

victed of these crimes (more than one of them), conclusively establishes that Erlinger is a convicted serial burglar—and perhaps a violent one at that—rendering any credibility finding in the defendant’s favor significantly more dubious. See Shepard v. United States , 544 U. S. 13, 38 (2005) (O’Connor, J., dissenting) (obser ving that the “prejudice is likely to be especially strong in ACCA cases, where the rel

evant prior crimes are, by definition, ‘violent’ ”); see also Mi

chelson , 335 U. S., at 476 (observing that prior-crimes evi

dence can “overpersuade” jurors “to prejudge [a defendant] with a bad general record and deny him a fair opportunity23 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting to defend against” the Government’s arguments). To be sure, preventing undue prejudice against defend

ants is an important responsibilit y of judges, and it is cer

tainly possible that, with the benefit of careful limiting in

structions, jurors would be able to dispassionately consider evidence about the nature and extent of a defendant’s past criminality only for the narrow question whether the de

fendant’s past crimes were, in fact, committed on separate occasions. See Spencer v. Texas , 385 U. S. 554, 562 (1967). But given what Wooden calls for, it seems as though some degree of prejudice from the sheer fact of the defendant’s having been previously convicted of crimes of this nature is inevitable. See Krulewitch v. United States , 336 U. S. 440, 453 (1949) (Jackson, J., concurring) (“The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fic

tion” (citation omitted)).

B The potential for prejudice is not the only practical prob

lem. At the same time, a jury trial—a highly regulated, in

flexible proceeding—is, by it s nature, poorly equipped to deal with the fine-grained, nuanced determinations based on sometimes-decades-old evidence that are necessary to fairly adjudicate factual questions like the one that ACCA’s occasions inquiry raises. This mismatch, too, persists even in the proposed world of bifurcated trials. Bifurcated trials or no, it is wildly inefficient for our system to try to fit the square peg of factfinding relate d to past criminality for sen

tencing purposes into the round hole of the existing pro

cesses that govern jury determinations. As I have explained, factfinding at trial (before a jury) and factfinding at sentencing (before a judge) differ proce

durally in fundamental ways. See Part I–A, supra . Jury factfinding is restricted and regimented, because a jury trial is “confine[d] . . . to eviden ce that is strictly relevant to24 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting the particular offense charged.” Williams , 337 U. S., at 247. Meanwhile, because “[a] sentencing judge . . . is not con

fined to the narrow issue of guilt ,” she is not bound by “strict evidentiary procedural limitations”; rather, when deter

mining the appropriate sentence, a judge “exercise[s] a wide discretion in the sources and types of evidence used to assist [her] in determining the kind and extent of punishment to be imposed.” Id ., at 246–247. Again, ACCA’s occasions determination is illustrative. Recall that Wooden requires a nuanced consideration of various factors, such as timing, location, and character of the past crimes, to determine whether those past crimes constituted separate “episodes of criminal activity.” 595 U. S., at 369. The “strict evidentiary procedural limita

tions” that apply to juries, Williams , 337 U. S., at 246, make it impractical for juries to conduct this kind of assessment. To take just one example, ACCA cases typically involve predicate crimes that may have occurred years—or even, as here, decades —ago. See ante , at 2–3. Erlinger’s sentencing for the crime to which ACCA potentially applies took place in 2022. See App. to Pet. for Cert. 14a. The three burglaries that gave rise to the occasions issue occurred 31 years prior—in 1991. Id ., at 21a. Given the rigidity of trials and the frailty of trial evidence, how—that is, based on what ev

idence —is a jury supposed to go about making the occasions finding in this case? The majority today boldly relegates this particular factfinding task to a jury, withou t pausing to explain how this assignment will reasonably be accomplished in light of these practical limitations. “But the real world of criminal justice . . . can function only with the help of procedural compromises, particularly in respect to sentencing.” Ap

prendi , 530 U. S., at 555 (Breyer, J., dissenting). Even set

ting aside that a perfectly competent alternative partici

pant in the criminal justice pr ocess (the judge) stands ready to do this (and can do it quite well, with the flexibility her25 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissentingrole affords), I foresee many practical obstacles to jury factfinding concerning this particular recidivism fact, not the least of which is that evidence required to make the occa

sions determination with any reliability may not be in a form suitable for submission to a jury, or simply may no longer exist. Issues concerning the state of the evidence with respect to decades-old past crimes could be why, between Wooden and now, most sentencing judges have made ACCA’s occa

sions finding based solely on so-called Shepard documents, which “include judicial records, plea agreements, and collo

quies between a judge and the defendant” from the past criminal proceeding. Ante , at 15. In the context of a sen

tencing hearing, a judge—who, after all, has professional familiarity with these kinds of records—can consider such documents with minimal effort. Judges know how to inter

pret these sorts of court record s. Additionally, during sen

tencing proceedings, parties’ arguments and evidence are not restricted, so based on what the parties find, as well as what evidence still exists, ar guments can be made directly to the judge about whether the occasions inquiry is satis

fied, including arguments that speak directly to imperfect recordkeeping and any potentially material gaps. Not so for a jury trial—at leas t not easily. There is a good reason why lawyers present live witnesses to juries: Show

ing the cold record documenting an event to a jury has much less value. At a minimum, a jury tasked with making the occasions finding would likely need an explanation of what the Shepard documents say, and in this adversarial con

text, that explanation could pro bably not be provided by the lawyers on their own—it would most likely have to take the form of witness testimony. And if we were to authorize juries to go beyond the Shep

ard documents related to past crimes in order to make the occasions finding, that inquiry would probably be even more26 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting difficult to conduct reliably. Why? First, because, presum

ably, the original evidence and witnesses related to a de

fendant’s past crimes would have to be somehow located and produced, despite the passage of time and potential chain-of-custody issues. Then, once we overcome those hur

dles, the rules of evidence would most likely come into play—screening out potentially probative considerations. By comparison, a sentencing judge can account for imper

fections in the evidentiary reco rds and is permitted to con

sider all manner of inadmissible evidence (such as out-of

court affidavits or hearsay test imony) in order to sentence. See Williams , 337 U. S., at 246. 4 Also, in terms of the most efficient use of the justice sys

tem’s limited resources, any witnesses could testify in nar

rative form when appearing before a sentencing judge as a factfinder, at a hearing designated for this purpose, without requiring examination by lawyers. In a jury trial, by con

trast, such evidence would likel y have to satisfy “strict evi

dentiary procedural limitations,” ibid ., such as direct, cross, and redirect examination. T hat may prove particularly and prohibitively cumbersome for the occasions inquiry, which is one small piece of the larger sentencing puzzle. All of these practical considerations lead me to believe that insisting that juries make factual determinations about a defendant’s past criminal behavior—and especially the “intensely factual” one at issue here, ante, at 4—is not only unwise but unworkable. Ag ain, how will juries of to

day actually determine what happened—and why—with

——————

4 Some courts have held that sentencing judges cannot consider any evidence other than Shepard documents when undertaking ACCA’s oc

casions inquiry. See, e

. g ., United States v. Elliott , 703 F. 3d 378, 382 (CA7 2012). But, in general, those conclusions appear to rest on a mis

understanding of the scope of a judge’s power to find recidivism facts. As I have explained, judges have long been able to make factual findings for sentencing purposes by considering all manner of evidence, and they are well equipped to consider any relevant evidence in making recidivism findings.27 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting respect to long-forgotten crime s of yesteryear? Who will testify about those crimes (who is still around and remem

bers)? And where is the physical evidence that was origi

nally used to try those cases now? These kinds of challenges present one obvious reason that, even as the Apprendi Court held that the Constitution prohibits judges from finding facts “that increas[e] the pen

alty for a crime beyond the prescribed statutory maximum,” it also included an express exemption—“[o]ther than the fact of a prior conviction.” 530 U. S., at 490. Perhaps the Court saw fit to expressly exclude the fact of a prior convic

tion from its original holding in Apprendi because of the re

ality that requiring juries to find recidivism facts is simply not doable. See id ., at 555 (Breyer, J., dissenting) (empha

sizing “the impractical nature” of the Apprendi rule). But, hey, says today’s majority, why should unrealistic expectations stop the Court from nonetheless requiring this to be done? Not one to be a ttentive to practical realities, especially when it believes it has constitutional theory on its side, the majority now plows forward, pushing the Ap

prendi doctrine into the realm of facts related to recidivism, which Apprendi had excluded, and which lower courts have nearly uniformly reserved for sentencing judges in the two decades since that opinion issued. The bottom line is this: Unlike juries, judges have the competency, wherewithal, and flexibility to assess facts re

lated to defendants’ past crimes and to handle, in a bal

anced way, the various practical problems that reliance on that kind of evidence raises. All things considered, then, committing the factfinding exe rcise related to ACCA’s occa

sions inquiry to judges is by far more efficient, and probably more fair to participants in th e justice system overall, than requiring juries to make that finding. For this reason, too, this Court should have continued to allow judges to do what they have always done and what they do best—make fac

tual findings related to a defendant’s criminal history, as28 ERLINGER v. UNITED STATES

J ACKSON , J., dissenting
Apprendi seems to permit, through its acceptance of Almendarez-Torres

. * * * Judges take into account all kinds of facts about a crimi

nal offense and the defendant when sentencing—they al

ways have, and they always will. Doing so is, in fact, how a judge goes about determining what sentence to impose in a given case. Thus, the notion that it is possible for judges to find facts in order to “low er” but not “increase” a defend

ant’s sentence, ante , at 10, n. 1 (emphasis deleted), is a the

oretical concept that bears no relationship to how sentenc

ing actually works in a courtroom. This might well be why, in reality, judges have continued to find facts that relate to the penalties they impose on criminal defendants (even facts t hat they ultimately rely on to give a higher sentence than the defendant may have oth

erwise received) regardless of this Court’s pronouncements purporting to vindicate defendant s’ constitutional rights by giving juries the responsibilit y to make those particular fac

tual determinations. Ultimately, then, all the Apprendi rule accomplishes on the ground is impeding legislative di

rectives to courts about the exe rcise of judicial discretion when sentencing—a development that, in my view, does not redound to the benefit of defe ndants collectively, the crimi

nal justice system, or our democratic society. In any event, before today, recidivism facts in particular have been specifically reserved for judges to determine; Ap

prendi itself expressly exempted the fact of a prior convic

tion from the rule it was announcing. I would not extend the Apprendi rule to cover this kind factfinding now, espe

cially since applying Apprendi to recidivism facts creates a host of practical problems that pertain to fairness and effi

ciency. Because the Court applies the Apprendi doctrine to recidivism findings when it did not have to do so, and also reaches that conclusion without concern for the myriad29 Cite as: 602 U. S. ____ (2024)

J ACKSON , J., dissenting
practical difficulties that arise from this determination, I respectfully dissent.