(Slip Opinion) OCTOBER TERM, 2023 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

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) conviction from a maximum sentence of 10 years to a mandatory minimum sentence of 15 years when the defendant has three or more qualifying convictions for offenses committed on different occasions. 

Subsequently, the Seventh Circuit held in unrelated decisions that two 

of the offenses on which the government relied for Mr. Erlinger’s sentence 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 convictions 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 not occur on separate occasions, as 

required by ACCA. Moreover, Mr. Erlinger argued that the question 

whether he committed these prior burglaries during a single episode 

or on distinct occasions required an assessment of the facts surrounding 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 factual in nature, the government admitted that given the factual nature

of the inquiry and its impact on a defendant’s sentence, the Constitution requires a jury to decide unanimously and beyond a reasonable 
 

 

 

 

 

 

2 ERLINGER v. UNITED STATES 

Syllabus 

doubt whether Mr. Erlinger’s prior offenses were committed on different 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 purposes. Pp. 5–26. 

(a) 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.” Inherent in that guarantee is an assurance that any

guilty verdict will issue only from a unanimous jury. Ramos v. Louisiana, 590 U. S. 83, 93. The Fifth Amendment further promises that the 

government may not deprive individuals of their liberty without “due 

process of law.” It safeguards for criminal defendants well-established

common-law protections, including the “ancient rule” that the government 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 controlled by, the jury and its verdict. 

Blakely v. Washington, 542 U. S. 296, 306. 

The Court has repeatedly cautioned that trial and sentencing practices must remain within the guardrails provided by these two Amendments. 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 jury may find “facts that increase the

prescribed range of penalties to which a criminal defendant is exposed.” 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 minimum 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 “committed on occasions different from one another.” §924(e)(1). And as 

Wooden observed, deciding whether those past offenses occurred on 

three or more different occasions is a fact-laden task. As the government recognizes, virtually “any fact” that “increase[s] the prescribed 

range of penalties to which a criminal defendant is exposed” must be

resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Apprendi, 530 U. S., at 490. Here, the sentencing court made a factual finding that Mr. Erlinger’s offenses occurred on at least three separate occasions. And as in Apprendi and 
 

 

 

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Syllabus 

Alleyne, that factual finding had the effect of increasing both the maximum and minimum sentences Mr. Erlinger faced. Thus, Mr. Erlinger 

was entitled to have a jury resolve ACCA’s occasions inquiry unanimously 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 exception 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 different occasions. That decision is 

an outlier. And the Court has described it as “at best an exceptional 

departure” from historic practice. Apprendi, 530 U. S., at 487. 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. 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 which the underlying offense occurred and

the date it happened, which is generally enough to resolve the occasions inquiry, making sending it to a jury pointless. This Court disagrees. 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 the information gleaned from Shepard documents for the “limited function” of determining the fact of a prior conviction 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 conduct 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 Sixth 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 the 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. Amicus points to supplemental information procedures that a few States

employed in the early 19th century. But a sentencing procedure followed by a few States hardly represents “convincing” proof that our 

precedents have mistaken the original meaning of the Fifth and Sixth 

Amendments. And in upholding one such scheme, the Court stressed 

that, under the law’s terms, even “the fact of former conviction” had to 
 

 

4 ERLINGER v. UNITED STATES 

Syllabus 

be “charged” by prosecutors and then “determined by a jury in a proceeding thereby instituted.” Graham v. West Virginia, 224 U. S. 616 

(1912). Amicus next turns to the Double Jeopardy Clause, which permits a judge to look into a defendant’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 protections at a different stage of the proceedings by ensuring that, once a 

jury is lawfully empaneled, the government must prove beyond a reasonable 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 this evidence may suggest that in a 

small number of jurisdictions, judges could find the existence, number, 

and dates of a defendant’s prior convictions, 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 occasions inquiry to juries 

would do more to prejudice than to protect defendants. That concern, 

like arguments about efficiency, cannot 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. 

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., 

filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

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

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 United States, Washington, 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] 

JUSTICE GORSUCH delivered the opinion of the Court. 

This case concerns the Armed Career Criminal Act 

(ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies

or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions 

under a preponderance-of-the-evidence standard, or 

whether the Fifth and Sixth Amendments require a unanimous jury to make that determination 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 “violent felon[ies]” or “serious 
 

 

 

2 ERLINGER v. UNITED STATES 

Opinion of the Court 

drug offense[s]” that were “committed on occasions different 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 his 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 remained free from drugs. Tr. of Plea and Sentencing Hearing 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 offenses 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 issued a 15-year sentence consistent with ACCA, the ground shifted. The Seventh Circuit issued decisions indicating that two of the three offenses 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 requires. Recognizing as much, the district court vacated its

sentence and set the case for a new sentencing hearing. Order, 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 committed when he was 18 years old—some 26 years before his 
 

Cite as: 602 U. S. ____ (2024) 3 

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 government 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-yearold 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 sentence. 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 occasions. But this time, the government confessed error. The 

Constitution, it said, “requires a jury” to decide unanimously and beyond a reasonable doubt whether Mr. Erlinger’s ACCA predicates were “‘committed on occasions 

different from one another.’” 77 F. 4th, at 619, 620. 

In explaining its turnabout, the government pointed to 
 

 

4 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 (GORSUCH, J., concurring in judgment). But, the government acknowledged, 

Wooden did hold that ACCA’s occasions “inquiry” can require an examination of a “range” of facts, including

whether the defendant’s past offenses were “committed 

close in time,” whether they were 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 conclusion, 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 government 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 defendants’ 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 inquiry 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 Harper to defend the judgment 
 

 

 

Cite as: 602 U. S. ____ (2024) 5 

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 Declaration 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 right. By their lights, colonial 

juries “‘were not to be trusted’” because they found for defendants 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 unpopular 

laws, 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 authorities hoped, the tactic proved “‘most effective’” at securing 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 independence, the founding generation sought to ensure what happened before would not happen again. As John Adams put it, the founders saw representative 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 fortification . . . against being ridden like horses, fleeced like 
 

 

 

6 ERLINGER v. UNITED STATES 

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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 proposed, the Constitution promised that “[t]he Trial of all 

Crimes, except in Cases of Impeachment, 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) (internal 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 guarantee 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-
 

 

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

Opinion of the Court 

guards for criminal defendants those procedural protections well established at common law, including the “ancient 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 circumstances 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 neighbours.’” Apprendi, 530 U. S., at 477 (quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769); 

emphasis deleted).

Equally, the Fifth and Sixth Amendments sought to ensure that a judge’s power to punish would “deriv[e] wholly” 

from, and remain always “control[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 possible 
 

 

8 ERLINGER v. UNITED STATES 

Opinion of the Court 

sentences, “the ranges themselves were linked to particular

facts” found by the jury. Alleyne, 570 U. S., at 109 (collecting 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. Haymond, 588 U. S., at 642 (quoting Apprendi, 530 U. S., at 519 

(THOMAS, 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 Amendments seek to mitigate the risk of prosecutorial overreach 

and misconduct, including the pursuit of “pretended offenses” 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-Federalist 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 appreciated, were “anchor[s]” essential to prevent a slide back toward regimes like the vice-admiralty courts they so despised. 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 practices. See Mistretta v. United States, 488 U. S. 361, 363– 

367 (1989); Williams v. New York, 337 U. S. 241, 247–248 
 

 

Cite as: 602 U. S. ____ (2024) 9 

Opinion of the Court 

(1949); see also P. Tappan, Sentencing Under the Model Penal 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 involving a New Jersey offense that ordinarily carried a maximum sentence of 10 years in prison. 530 U. S., at 468. The 

State, however, had adopted a novel “sentencing enhancement” that purported to allow a judge to impose an even 

longer term of imprisonment after finding, by a preponderance of the evidence, that the offender’s crime was motivated by racial bias. Id., at 468–471. Relying on that statutory authority, the sentencing judge ordered the 

defendant to serve 12 years in prison. Id., at 471. This 

Court found the sentence unconstitutional, 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 criminal 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 Haymond, 588 U. S., at 644 (collecting cases). And it is a principle, 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 increase a defendant’s minimum punishment. Alleyne illustrates 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 sentence if he found a certain additional fact by a preponderance 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 sentence, 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 have now overruled several decisions inconsistent with them. See, e.g., Hurst v. Florida, 

577 U. S. 92, 101–102 (2016) (overruling Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984)); Alleyne, 570 U. S., at 107 (overruling 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 included three convictions for “violent felon[ies]” or “serious

drug offense[s]” that were “committed on occasions different from one another.” §924(e)(1). And under Wooden, deciding whether those past offenses 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 character? Ibid. All these questions, Wooden observed, “may be 

relevant” to determining whether the offenses were committed on one occasion or separate ones—and all require 

facts to be found before ACCA’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: Virtually 
Cite as: 602 U. S. ____ (2024) 11 

Opinion of the Court 

“any fact” that “‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’” must be resolved by a unanimous jury beyond 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 purport 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 preponderanceof-the-evidence standard to increase the defendant’s maximum sentence from 10 to 20 years. 530 U. S., at 469. In 

Alleyne, a judge proceeded the same way to increase the defendant’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 separate occasions had the effect of increasing both the maximum 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 beyond a reasonable doubt, we decide no more than that. For 

purposes of the proceedings before us, the parties take as 

given that Mr. Erlinger committed 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’s 
 

 

12 ERLINGER v. UNITED STATES 

Opinion of the Court 

enhanced sentences would apply) or during a single criminal episode (so that they would not). Presented with evidence 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 JUSTICE JACKSON 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 many precedents applying it, post, at 1, and 

n. 1, 10–18. But rather than meaningfully engage with the Constitution,

its original meaning and history, or our precedents, JUSTICE JACKSON 

would abandon “constitutional theory” and appeal to a different authority. Post, at 27. “In my view,” post, at 20, JUSTICE JACKSON 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, juries decide exponentially more complex questions than that. Nor, of course, does Apprendi prohibit legislatures 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 exposure to punishment based on their own factfinding. All of which leaves 

JUSTICE JACKSON with her real complaint: In her view, it is “wildly inefficient” to require the government to call witnesses and present evidence—which is to say prove its case—when a judge might more easily

enhance a defendant’s exposure to punishment by consulting “sometimes-decades-old,” post, at 23, and error-prone court records, infra, at 

17–19. But does JUSTICE JACKSON really think it too much to ask the 

government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments 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. JUSTICE JACKSON 

may view juries as “roadblocks” to higher punishments. Post, at 18. But 
 

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

Opinion of the Court 

III 

A 

The Court-appointed amicus resists the conclusion we 

reach. Unlike JUSTICE JACKSON, see n. 1, supra, however, 

amicus does not dispute the Constitution’s time-honored

guarantee that a unanimous jury ordinarily must find beyond a reasonable doubt any fact that increases a defendant’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 exception permits a judge to find perhaps any fact related to

a defendant’s past offenses, including whether he committed 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 KAVANAUGH, J.). 

We disagree. In Almendarez-Torres, the Court considered sentencing laws applicable to aliens who returned to

the United States after a previous removal. The default 

sentencing range was up to two years of imprisonment. 8 

U. S. C. §1326(a) (1994 ed.). But a finding that the government previously removed the alien after a “conviction for 

commission of an aggravated felony” triggered a new maximum 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 the fact of a prior conviction—

and that job alone. 523 U. S., at 246–247. 

Almost immediately, too, the decision came under scrutiny. Jones, 526 U. S., at 249, n. 10. The Court has since 

described Almendarez-Torres as “at best an exceptional departure” 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 people ratified the Fifth and Sixth Amendments, 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] . . . incorrec[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 JUSTICE THOMAS, 

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) (THOMAS, J., concurring); 

Descamps v. United States, 570 U. S. 254, 280 (2013) 

(THOMAS, J., concurring in judgment); Shepard v. United 

States, 544 U. S. 13, 27 (2005) (THOMAS, 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 convicted of.” Mathis, 579 U. S., at 511–512. We have reiterated 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 

—————— 2See 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, 24 
Cite as: 602 U. S. ____ (2024) 15 

Opinion of the Court 

to save the sentence in this case. To determine whether Mr. 

Erlinger’s prior convictions triggered ACCA’s enhanced 

penalties, the district court had to do more than identify his 

previous convictions and the legal elements required to sustain 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 elements, 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 would 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 secure 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 records, 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 KAVANAUGH, J.). But surely our consistent explanations 

of Almendarez-Torres’s reach cannot be so casually dismissed. Perhaps

especially when those explanations were 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 Shepard documents or any other materials for any other purpose. To ensure compliance with the Fifth and Sixth 

Amendments, a sentencing judge may use the information 

he gleans from Shepard documents for the “limited function” 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 . . . actually d[id],” or the “means” or “manner” in which he committed 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 constraints. 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 jurisdiction 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 increasing his punishment. The Fifth and Sixth Amendments “contemplat[e] that a jury—not a sentencing court—

will find such facts, unanimously and beyond a reasonable 
 

 

 

Cite 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 occasions 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 character 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 Association of Federal Defenders as Amicus Curiae 8–15 (NAFD Brief ) (recounting examples of material errors); post, at 25 (opinion of JACKSON, J.) (acknowledging 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 proceeding. Mathis, 579 U. S., at 512. As we have recognized, “[a]t 

trial, and still more at plea hearings, a defendant may have 

—————— 3The principal dissent dismisses our precedents restricting the materials 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 KAVANAUGH, J.). But, as the government recognizes, this 

Court did address the Sixth Amendment 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 crime, with what elements, the defendant was convicted 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 conviction at the time. Ibid. He may even “‘have good reason not 

to’” haggle over seemingly immaterial errors in his judicial 

records. Ibid. (quoting Descamps, 570 U. S., at 270). 

Those realities counsel caution in the use of Shepard documents. At the time of his prior conviction, a defendant

might not have cared if a judicial record contained a mistake 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. Contesting them needlessly, too, 

might have risked squandering the patience and good will 

of a jury or the judge responsible for pronouncing a sentence. Yet, years later and faced with an ACCA charge,

those kinds of details can carry with them life-altering consequences. For Mr. Erlinger, they may mean perhaps 10 

more years in prison. As a matter of fair notice alone, old 

recorded details, prone to error, sometimes untested, often 

inessential, and the consequences of which a defendant may 

not have appreciated at the time, “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 defendant’s past offenses will be different enough and separated by enough time and space 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 government 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. Rose 
 

 

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

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 insists our precedents are mistaken. Properly understood, he

submits, the Fifth and Sixth Amendments’ original meaning 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 

—————— 4The 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 KAVANAUGH, J.). But most of the 

decisions the dissent cites issued before Wooden’s clarification about the 

nature of the occasions inquiry, a clarification even the government now 

recognizes means a jury is required. And to the extent some lower courts

have continued to allow judges to resolve occasions inquiries even after 

Wooden v. United States, 595 U. S. 360 (2022), it seems confusion about 

Almendarez-Torres has played a role in their 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 foregone conclusion” that a judge may continue 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 approach[es]” exist “as 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 Nation’s founding to be a fact a jury must find. 530 U. S., at 

490; see also id., at 499–512 (THOMAS, 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 employed “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 Graham v. West Virginia, 224 U. S. 616 (1912). The principal dissent echoes

the same points. Post, at 14–16 (opinion of KAVANAUGH, 

J.).

But, if anything, the evidence amicus cites does more to 

hurt than help his cause. For one thing, a sentencing procedure followed by a few States hardly represents “convincing” 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 instituted.” 224 U. S., at 630. Put those points together and 

amicus’s evidence provides perhaps more reason to question Almendarez-Torres’s narrow exception than to expand 
Cite as: 602 U. S. ____ (2024) 21 

Opinion of the Court 

it.5 

Reaching for another tradition, amicus (but not the principal 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 sentence. Brief for Court-Appointed 

Amicus Curiae 25–26. But that, too, does not follow. 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. See, e.g., 

Green v. United States, 355 U. S. 184, 188 (1957). The Fifth 

and Sixth Amendments’ jury trial rights provide a defendant with entirely complementary protections at a different

stage of the proceedings by ensuring that, once a jury is lawfully empaneled, the government must prove beyond a reasonable 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 KAVANAUGH, 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 supplemental-information procedures became more “widely adopted” in the 1920s after Graham. Brief for CourtAppointed Amicus Curiae 16. But, since Apprendi, this Court has insisted on “remain[ing] true” to the Fifth and Sixth Amendment’s original

meaning and protecting the rights 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, does 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 under supplemental-information regimes or more traditional ones. See Apprendi, 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. Brief 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 postratification practice” that can sometimes “shed light upon the meaning” 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” determinations—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 secured 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 existence, 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 KAVANAUGH, J.).

For that matter, it is not clear whether these four States 

—————— 6See H. Toulmin, Digest of the Laws 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. Phillips, Revised Statutes of Louisiana 155 (1856); 1870 La. Acts p. 206, §4. 7See 1840 Ala. Sess. Laws 153; 1868 Kan. Sess. Laws pp. 380–381; 

State v. Hudson, 32 La. Ann. 1052, 1053 (1880). 8Toulmin, Digest of the Laws of the State of Alabama, at 377. 
 

Cite as: 602 U. S. ____ (2024) 23 

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 recognized, 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 

(THOMAS, J., concurring). Similar problems attend amicus’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 existence of “previous convictions.” Id., at 1053. But Louisiana “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 problems. 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 prosecutors to prove that the defendant’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 KAVANAUGH, J.); post, 

at 19–23 (opinion of JACKSON, J.). 
 

 

 

24 ERLINGER v. UNITED STATES 

Opinion of the Court 

But just as arguments from efficiency cannot alter the demands of the Fifth and Sixth Amendments, neither may 

that practical concern, “of which earlier courts were well 

aware.” Apprendi, 530 U. S., at 521 (THOMAS, J., concurring). It is hard not to wonder, too: Are we really to suppose 

that the amici supporting Mr. Erlinger in this Court, including the National Association of Criminal Defense Lawyers 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 Association of Criminal Defense Lawyers as Amicus Curiae 

16–17. 

Of course not. As these groups stress, and the government agrees, traditional tools exist to address the prejudicial 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 (THOMAS, 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 defendant’s prior offenses occurred on different occasions for purposes of applying ACCA’s mandatory minimum sentence

under §924(e). JUSTICE JACKSON expresses concern about

the “burdens” proceeding this way might impose. See post, 

at 21. But by sequencing and separating the jury’s determinations, a court decreases the likelihood that a jury will 

be “‘overpersuade[d]’” by the defendant’s prior criminal 

conduct. Post, at 22 (JACKSON, J., dissenting) (quoting Michelson 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 why 
 

 

 

Cite as: 602 U. S. ____ (2024) 25 

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 requirement.” 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 defendant guilty of the crime currently charged”).10 

—————— 9Of the trials where proceedings were bifurcated, the National Association of Federal Defenders observes, some “have resulted in acquittal or

dismissal” at the first stage where prejudicial 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. 10Once more parting ways with the parties and defense bar amici, 

JUSTICE JACKSON asserts that Apprendi’s rule confining judges at sentencing 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 defendants. It seems, too, JUSTICE JACKSON has directed her fire at the 

wrong target. The reports and law review article cited by JUSTICE 

JACKSON attribute sentencing disparities to this Court’s remedial decision 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 questions under a daunting reasonable doubt standard. Avoiding the prejudice associated with the introduction of evidence 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 tolerate 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 Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities?, 99 N. C. L. Rev. 1391, 1405, 1423 (2021). 

And, unlike JUSTICE JACKSON, 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. 
 

_________________ 

_________________ 

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

ROBERTS, 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]

 CHIEF JUSTICE ROBERTS, 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 occasions for purposes of the Armed Career Criminal Act. But 

as JUSTICE KAVANAUGH explains, violations of that right 

are subject to harmless error review. See post, at 9–11 (dissenting opinion). The Seventh Circuit should thus consider 

on remand the Government’s contention that the error here 

was harmless. 
_________________ 

_________________ 

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

THOMAS, 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] 

JUSTICE THOMAS, 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) (THOMAS, 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 “narrow 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 declines to extend that dubious exception to the different-occasions 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 succumbed” by joining that decision. Apprendi, 530 U. S., at 

520 (opinion of THOMAS, J.); see also Sessions v. Dimaya, 

584 U. S. 148, 226 (2018) (THOMAS, J., dissenting); Mathis 
 

 

 

2 ERLINGER v. UNITED STATES 

THOMAS, J., concurring 

v. United States, 579 U. S. 500, 522 (2016) (THOMAS, J., concurring); Descamps v. United States, 570 U. S. 254, 280–281 

(2013) (THOMAS, J., concurring in judgment); Rangel-Reyes 

v. United States, 547 U. S. 1200, 1202 (2006) (THOMAS, J., 

dissenting from denial of certiorari); Shepard v. United 

States, 544 U. S. 13, 27–28 (2005) (THOMAS, 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 “specifically presenting this Court

with opportunities to reconsider Almendarez-Torres.” 

Rangel-Reyes, 547 U. S., at 1202 (opinion of THOMAS, J.).

Today’s decision demonstrates further that “[i]t is time for

this Court to do its part” by granting one of those many petitions and overruling Almendarez-Torres. Rangel-Reyes, 

547 U. S., at 1202. 
_________________ 

_________________ 

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

KAVANAUGH, 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] 

JUSTICE KAVANAUGH, with whom JUSTICE ALITO joins,

and with whom JUSTICE JACKSON 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 violent 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 felonies. 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 precedents establish that a judge

may make the different-occasions determination. Because 

the Court today concludes that only a jury may make the 

different-occasions determination, I respectfully dissent. 
 

 

2 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 accepting the District Court’s 

authority to determine whether 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 felonies on different occasions. 

That was not a promising argument. Like all 11 other 

Courts of Appeals that handle federal criminal cases, the 
 

Cite as: 602 U. S. ____ (2024) 3 

KAVANAUGH, 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 were 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 jury 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 crimes—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 

KAVANAUGH, 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 offenses 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 aggravated 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 recidivism as an element of the 

offense.” Id., at 239. If so, the Government would have to 

prove 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 Constitution 
Cite as: 602 U. S. ____ (2024) 5 

KAVANAUGH, J., dissenting 

requires that recidivism be deemed an ‘element’ of 

petitioner’s offense would mark 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 how 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 for violent felonies committed

on different occasions. Erlinger does not dispute that 

Almendarez-Torres allows a judge to determine whether 

Erlinger had three prior convictions 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 past 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 person 
 

6 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 following 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 sentencing. 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. 
 

 

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

KAVANAUGH, 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 jury 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 enhancements 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. Apprendi 
 

 

8 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 avoidance “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 the 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 

—————— 1The 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)). 
 

Cite as: 602 U. S. ____ (2024) 9 

KAVANAUGH, 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). The harmless-error rule serves 

an important purpose. It ensures that appellate courts do

not set aside convictions or sentences “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 

—————— 2Unlike the Court’s interpretation of ACCA in cases like Mathis and 

Descamps, moreover, the Court’s new constitutional rule will apply not 

only to federal cases, but also to state cases. Several States have 

recidivism enhancements that require 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 federal 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). Those courts, too, will be surprised by 

today’s new rule. 
 

10 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 different-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 person 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 occurred 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 

—————— 3For 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). 4Going 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. 
 

Cite as: 602 U. S. ____ (2024) 11 

KAVANAUGH, J., dissenting 

“a viable argument” against harmless error, Erlinger 

responded that he could “imagine somebody” who might.

Tr. of Oral Arg. 25. For example, 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 jury” could think that separate

burglaries days apart in different 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 separating 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 JUSTICE THOMAS 

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 

KAVANAUGH, 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 contributes 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) (KAVANAUGH, 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 considering 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 

(KAVANAUGH, J., concurring in part). Second, “has the prior

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

KAVANAUGH, 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 whether 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 horse 
 

 

 

 

14 ERLINGER v. UNITED STATES 

KAVANAUGH, J., dissenting 

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.”

State 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 recidivism 
 

 

Cite as: 602 U. S. ____ (2024) 15 

KAVANAUGH, 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 raise 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 practice 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) 

—————— 5A different constitutional rule applies if the defendant’s status as a 

felon is an element of the present offense 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 

KAVANAUGH, 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 discretion 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 would 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 against 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. 

—————— 6Throughout much of American history, criminal sentencing at both 

the state and federal levels has often been done by judges in systems

where the judges have discretion to sentence within broad ranges. And 

in those discretionary-sentencing systems, 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 

KAVANAUGH, 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 itself is deeply entrenched in 

American law. To avoid making defendants pay that price, 

some legislatures have long given 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 conducted in a nonprejudicial 

atmosphere”). The distinctive tradition that governs

recidivism enhancements for past offenses has traditionally 

co-existed with the general right 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 and 
 

18 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 jurisprudential 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 separate mini-trial with the

jury on the recidivism enhancement after the jury has 

found the defendant guilty of a crime. 
 

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

KAVANAUGH, J., dissenting 

But most criminal cases are tried in state court. And 

States remain free not to bifurcate (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 ordinarily has discretion to decide 

whether to bifurcate, and bifurcation 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 prosecutor’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 

KAVANAUGH, 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 suffer that prejudicial harm 

for little benefit. Determining whether the defendant has 

a prior conviction for a particular 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 far 

enough 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 

—————— 8To 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 infected 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. 
Cite as: 602 U. S. ____ (2024) 21 

KAVANAUGH, J., dissenting 

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 jettison longstanding sentencing 

enhancements for recidivists. They could mandate costly

and inefficient bifurcated trials in cases with a recidivism 
 

22 ERLINGER v. UNITED STATES 

KAVANAUGH, 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 occasions, I respectfully dissent. 
 

_________________ 

_________________ 

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

JACKSON, 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] 

JUSTICE JACKSON, 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 particular defendant’s criminal history 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 historically been deemed well 

within the capacity of a sentencing judge. See AlmendarezTorres v. United States, 523 U. S. 224, 243–244 (1998). Today, 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 relate to a defendant’s prior crimes cannot be determined by

judges but instead must be found by juries. I disagree for

several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other 

observers before me, I do not believe that Congress exceeds

its constitutional authority when it empowers judges to 

make factual determinations related to punishment and directs that a particular sentencing result follow from such

findings.1 

—————— 1Critiques of the Apprendi Court’s misguided constitutional analysis

have been covered at length elsewhere. See, e.g., Apprendi v. New Jersey, 

530 U. S. 466, 524–536 (2000) (O’Connor, J., dissenting); id., at 559–561 
 

 

2 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that “has now defined the relevant legal regime” for nearly a quarter century. Alleyne v. 

United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment). Given that reality, untangling the knots Apprendi has tied is probably infeasible 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 recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now. 

I agree with JUSTICE KAVANAUGH that, all things considered, the Court errs in concluding today that ACCA’s occasions inquiry must be decided by a jury. See ante, at 3–9 

(dissenting opinion). I write separately to provide an additional critical perspective on the Apprendi doctrine—one 

that is informed by how sentencing has actually worked on

the ground, before and after Apprendi—and to note that applying the Apprendi rule to ACCA’s occasions finding creates 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 implement 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). 
Cite as: 602 U. S. ____ (2024) 3 

JACKSON, J., dissenting 

submitted to a jury, and proved beyond a reasonable doubt.” 

530 U. S., at 490. For the reasons others have skillfully articulated, 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 appropriate punishments based on findings of fact. Apprendi

and its ilk have also needlessly hampered Congress’s and 

state legislatures’ pursuit of a fairer and more rational sentencing system. 

A 

Our Constitution “protects the 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 understood: It is a protection against conviction without the 

necessary facts having been established beyond a reasonable doubt. Ibid. That is not the same as a protection 

against being sentenced to a certain level of punishment unless the facts that are relevant to that sentencing determination have been proved to a jury consistent with the reasonable-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 elements of a crime are its requisite (a) conduct (act or omission 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 recognizes, such elemental facts have always been in the purview 
 

4 ERLINGER v. UNITED STATES 

JACKSON, 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 elements 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 legislature 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 entrusted 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 judgments about which facts constitute elements of the offense. See McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986) (“[I]n determining what facts 

must be proved beyond a reasonable doubt the . . . legislature’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 establishing 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 determine 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. 
 

Cite as: 602 U. S. ____ (2024) 5 

JACKSON, J., dissenting 

Sentencing Rep. 69, 72 (2004).2 

Significantly for present purposes, judges were thought 

to “inherently possess ample right to exercise reasonable,

that is, judicial, discretion to enable them to wisely exert 

their authority” in deciding what 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 unreviewable in most circumstances. See 

Dorszynski v. United States, 418 U. S. 424, 431 (1974). 

When exercising their sentencing authority, judges were 

also presumed to have the power to find and consider nearly 

any fact deemed relevant to the 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 determining the kind and extent of punishment to be imposed 

within limits fixed by law.” Williams v. New York, 337 U. S. 

241, 246 (1949). A sentencing judge might find, for example, 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 determinations were considered to 

be important factors for imposing the sentence that a person 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 

—————— 2For example, the First Congress declared that misprision (i.e., concealment) 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 “imprison[ment] not exceeding seven years” and “whipp[ing] 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 

JACKSON, J., dissenting 

complex, with the vast majority of States and the Federal

Government adopting so-called 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 maximum [sentences] based on judicial estimates of how long it

would take to rehabilitate criminal 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 individual 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 constitutionally problematic.

Critically, the nature of factfinding proceedings before a 

judge at sentencing was—and still is—fundamentally different 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 sentencing purposes. See ibid. Instead, a sentencing judge has always been expected to consider a wide range of information—really, anything relevant to assessing the 

appropriate penalty—when determining a sentence. 

The difference between jury factfinding at trial and judicial factfinding for sentencing makes perfect sense. “Typically, trial disputes center on particular 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 Sensible, 4 Ohio St. J. Crim. L. 37, 54 (2006). As a result, “[r]ules

of evidence have been fashioned for criminal trials which 
 

 

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

JACKSON, 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 confined to the narrow issue of guilt. 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 offender and can choose from various possible dispositions.”

Berman & Bibas, 4 Ohio St. J. Crim. L., at 55. “Highly relevant—if not essential—to [a judge’s] selection of an appropriate sentence is the possession of the fullest information 

possible concerning the defendant’s life and characteristics.” 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 purposes, 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 characteristics 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, legislatures 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 incarcerating some offenders longer than others for the same 
 

8 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

crime,” as well as the possibility that discriminatory considerations 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 legislative development—the identification of what are commonly

referred to as “sentencing factors” (also known as “sentencing facts”). In an effort “to bring more order and consistency 

to the [sentencing] process,” Congress and state legislatures “sought to move from a system of indeterminate sentencing or a grant of vast discretion to the trial judge to a 

regime in which there [were] more uniform penalties, prescribed by the legislature.” Jones v. United States, 526 

U. S. 227, 271 (1999) (Kennedy, J., dissenting). Legislatures recognized that, although judges are fully competent

to find facts and exercise discretion when sentencing, too

much discretion could create unwarranted disparities and 

therefore have detrimental effects. New sentencing regimes were implemented to cabin sentencing discretion by 

“directly limit[ing] the use . . . of particular factors in sentencing” and “by specifying statutorily how a particular factor [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 sentencing 
Cite as: 602 U. S. ____ (2024) 9 

JACKSON, J., dissenting 

purposes. See 28 U. S. C. §994(d) (directing the U. S. Sentencing Commission to consider whether age, education, vocational skills, and other factors are relevant to sentencing); United States Sentencing Commission, Guidelines 

Manual §§5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting 

that education, drug or alcohol dependence, employment 

record, and family ties are ordinarily not relevant in determining 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 elements of criminal offenses

or to circumvent the procedural protections of the Bill of 

Rights.” Blakely, 542 U. S., at 316 (O’Connor, J., dissenting). Rather, Congress and the States that adopted these

rules did so against a backdrop of unbounded judicial discretion that had proved, in their view, to be unwieldy, unfair, and unwise. Accordingly, the goal of legislative efforts 

in this regard was to constrain judicial discretion by channeling 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 attempts 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 maximum” 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 submitted to the jury.” Alleyne, 570 U. S., at 114–115. 

By now, the Apprendi rule has been applied to a litany of 
 

 

 

10 ERLINGER v. UNITED STATES 

JACKSON, 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 Congress and state legislatures to define criminal offenses and 

the sentences that follow from convictions thereunder.” Apprendi, 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 developments. In my view, however, the Court made a serious mistake 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 traditional distinction between elements of a crime (facts constituting the crime, typically for the jury to determine) and

sentencing facts (facts affecting the sentence, often concerning, e.g., the manner in which the offender committed the 

crime, and typically for the judge to determine).” Alleyne, 

570 U. S., at 122 (Breyer, J., concurring in part and concurring 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 THOMAS, 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 determined by the jury, the judge was meant simply to impose 

the prescribed sentence.’” Ante, at 7 (quoting United States 
 

Cite as: 602 U. S. ____ (2024) 11 

JACKSON, 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 suggested that, far from the simplistic picture painted by the

Court in Apprendi, the historical “tradition was not uniform, 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, Apprendi’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 sentencing—and it certainly “does not freeze 19th-century sentencing practices into permanent law.” Apprendi, 530 U. S., 

at 559 (Breyer, J., dissenting). Moreover, “[a]n essential aspect 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 Bureau v. Community Financial Services Assn. of America, 

Ltd., 601 U. S. 416, 446 (2024) (JACKSON, J., concurring).

In my view, the People’s elected representatives should be

able to pursue new and innovative approaches to sentencing and sentencing reform “without undue interference by 

courts,” ibid., especially given that unfair and disparate

sentences are a persistent societal problem that the legislature is indisputably authorized to address. 

Nor is there a functional, policy-based justification for the

constitutional rule that Apprendi and its progeny enshrined. 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 increase the prescribed range of penalties to which a criminal 
 

 

12 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

defendant is exposed,’” 570 U. S., at 490, Apprendi “preserves the historic role of the jury as an intermediary between 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 Apprendi, to impose any punishment within a prescribed sentencing range based on whatever facts she deems relevant. 

See 530 U. S., at 481 (conceding that judges may “exercise 

discretion—taking into consideration various factors relating both to offense and offender—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 determine the presence or absence of the verdict facts that operate to constrain the outer limit of the judge’s authority to

impose sentence.” B. Priester, Apprendi Land Becomes Bizarro World: “Policy Nullification” and Other Surreal Doctrines in the New Constitutional Law of Sentencing, 51

Santa Clara L. Rev. 1, 47 (2011) (emphasis added). Meanwhile, the judge continues to be the sole decisionmaker with

respect to determining the facts she will rely upon to sentence within the typically broad statutory sentencing range.

See United States v. Booker, 543 U. S. 220, 246 (2005). “The 

jury plays no role in extraverdict factfinding, nor in calculating 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 impermissible judicial factfinding therefore neither aligns with

the doctrine’s rationale nor achieves 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-
Cite as: 602 U. S. ____ (2024) 13 

JACKSON, J., dissenting 

ture—so long as the consequence of that fact is not mandatory but rather left to the judge’s discretion. And after Apprendi, just as before, criminal defendants routinely stipulate to facts that are relevant to statutory maximums and 

minimums as part of binding plea agreements, making factfinding with respect to these newfound 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 encroachment.” 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 Apprendi line of cases appears to have had no appreciable effect on “the number of criminal jury trials” or on “the number of sentence-affecting facts decided by juries in those 

trials that do occur.” F. Bowman, Debacle: How the Supreme 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 decisions 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]egislatures 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 that 
 

 

14 ERLINGER v. UNITED STATES 

JACKSON, 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 policy 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 doctrine—“a fact is either of a type that triggers the full panoply of procedural protections that comes with the Sixth

Amendment jury-trial right, or it is of no constitutional consequence 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 impracticality, 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, creative approaches to factfinding at sentencing that better reflect 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 create a sentencing law that would

mandate more similar treatment of like offenders, that 

would thereby diminish sentencing disparity, and that 
 

Cite as: 602 U. S. ____ (2024) 15 

JACKSON, J., dissenting 

would consequently help to overcome irrational discrimination (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 legislatures of authority that is constitutionally theirs.” Id., at 

330. 

C 

I recognize that many criminal defendants and their advocates 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 advocating for a rule that would be 

‘unfair to criminal defendants.’” Ante, at 24 (quoting 

Blakely, 542 U. S., at 312). Defendants’ embrace of the Apprendi doctrine is perfectly rational because procedural 

rights like the right to have a jury determine certain sentencing facts “hel[p] some defendants—and probably rais[e] 

the overall level of defense victories—by giving their lawyers 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 defendants derive from the Apprendi rule in the context of 

their individual cases is outweighed by the negative systemic 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, consistency, and transparency in sentencing. See Stuntz, 107 

Yale L. J., at 75. 

The U. S. Sentencing Commission has documented the 
 

16 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

impact of the Apprendi rule in the wake of our decision in 

United States v. Booker, 543 U. S. 220, which applied Apprendi to the Federal Sentencing Guidelines. In Booker, we 

found certain judicial factfinding in the Guidelines context 

unconstitutional under Apprendi, but to remedy that violation, we also held that the Guidelines must be treated as 

advisory rather than mandatory. 543 U. S., at 244–245. After Booker, sentencing disparities of all manner have increased significantly. Otherwise similarly situated defendants 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 Sentencing Commission, Inter-District Differences in Federal Sentencing Practices 7 (Jan. 2020) (“Variations in sentencing

practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker”); United States Sentencing Commission, Intra-City Differences in Federal Sentencing 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 interference with legislative control over judicial sentencing discretion would contribute to these kinds of disparities.

Among the evidence that has been amassed concerning 

Apprendi’s negative downstream impact on sentencing fairness, one statistic is particularly sobering: In the federal

criminal justice system, racial disparities in sentencing 

have been a persistent problem, but the gap between similarly situated Black and White male defendants “was narrowest” before the Court applied Apprendi to the Guidelines. 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, 1412 
Cite as: 602 U. S. ____ (2024) 17 

JACKSON, J., dissenting 

(2021); see also United States Sentencing Commission, Demographic Differences in Sentencing: 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 defendants 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 legislative action in the sentencing realm will be made in pursuit of greater systemic fairness. Legislatures are sometimes incentivized to adopt more punitive measures, such

as mandatory minimums or severe recidivism-based sentencing 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 concurring in judgment). But problems created by the legislature can also be addressed through the democratic process; 

indeed, legislators have recently retreated from harsh sentencing 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) (GORSUCH, J., dissenting) (discussing 

the First Step Act’s attempt to “recalibrate [Congress’s] approach” to sentencing). Meanwhile, Apprendi’s constitutional rule operates to constrain legislative reforms while

also potentially perpetuating the unfairness caused by unwarranted 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 laws that distinguish between 
 

 

18 ERLINGER v. UNITED STATES 

JACKSON, 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 making 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 determinations, 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., dissenting); see also Morrissey v. Brewer, 408 U. S. 471, 481 (1972)

(“[D]ue process is flexible and calls for such procedural protections as the particular situation demands”). Other constitutional provisions, like the Eighth Amendment’s prohibition 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. Bajakajian, 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 sentencing. 
 

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

JACKSON, 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 extends 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 JUSTICE KAVANAUGH 

explains. Ante, at 3 (dissenting opinion). Indeed, we have 

already recognized that “[j]udges 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 defendant’s sentence.” Ante, at 3; see also Almendarez-Torres, 523 

U. S., at 239, 247. 

I will use this opportunity to make one additional observation: Not only is the majority’s approach to ACCA’s occasions finding inconsistent with our precedent (as JUSTICE 

KAVANAUGH observes, ante, at 3–4), it is also unworkable 

in practice, due to the limitations inherent in jury presentations. That is, for all the majority’s talk of constitutional 

theory, it gives little thought to “proportionality, uniformity, and administrability,” which “are all aspects of

that basic ‘fairness’ that the Constitution demands.” Apprendi, 530 U. S., at 559 (Breyer, J., dissenting). 

As a reminder, ACCA directs sentencing 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 convictions “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 assessment; rather, the factfinder must consider “a range of circumstances,” 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 of 
 

20 ERLINGER v. UNITED STATES 

JACKSON, 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 occasions inquiry requires is unsuitable for juries to decide in terms of both fairness and efficiency—two crucial criteria for 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 difficult for the jury to find in the 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 increasing 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—because “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 character 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 history is prejudicial. See, e.g., T. Eisenberg & V. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision To Testify and on Trial 

Outcomes, 94 Cornell L. Rev. 1353, 1357 (2009) (“Juries ap-
Cite as: 602 U. S. ____ (2024) 21 

JACKSON, J., dissenting 

pear to rely on criminal records to convict when other evidence in the case normally would not support conviction”). 

As JUSTICE KAVANAUGH notes, such fairness concerns 

have long compelled courts to keep facts concerning a defendant’s criminal history away from juries. Ante, at 16– 

17. “Courts that follow the common-law tradition almost 

unanimously have come to disallow resort by the prosecution 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 juries would be prejudiced by exposure to a defendant’s criminal history—is, in fact, a cornerstone of criminal procedure.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 under the Apprendi rule (as we require today), trial courts will

need “to address the prejudicial effect evidence about a defendant’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 JUSTICE KAVANAUGH explains. Ante, 

at 18. For one thing, bifurcation of trial proceedings imposes significant additional burdens on the criminal justice 

system. Ibid. I will point to an additional problem: Even 

—————— 3For 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 facts 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 

JACKSON, J., dissenting 

bifurcation may not suffice to completely eliminate potential juror prejudice with respect to the occasions finding. 

Consider, if you will, the kinds of evidence the prosecution might ask a jury to evaluate in a bifurcated trial over 

(the comparatively pedestrian) question whether a defendant’s prior crimes were committed on different occasions. 

Also imagine the defendant’s potential arguments in response. Concerning the latter, in this case, Erlinger’s counsel suggested that his past crimes—three burglaries that

occurred on different dates over an 8-day period—could conceivably constitute a single occasion of criminality if those

break-ins were all committed “to get money to pay [a] gambling 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 credibility 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 finding much more difficult. In other words, Erlinger’s past

criminal behavior, and the fact that he was previously convicted 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) (observing that the “prejudice is 

likely to be especially strong in ACCA cases, where the relevant prior crimes are, by definition, ‘violent’”); see also Michelson, 335 U. S., at 476 (observing that prior-crimes evidence can “overpersuade” jurors “to prejudge [a defendant] 

with a bad general record and deny him a fair opportunity 
Cite as: 602 U. S. ____ (2024) 23 

JACKSON, J., dissenting 

to defend against” the Government’s arguments). 

To be sure, preventing undue prejudice against defendants is an important responsibility of judges, and it is certainly possible that, with the benefit of careful limiting instructions, 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 defendant’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 fiction” (citation omitted)). 

B 

The potential for prejudice is not the only practical problem. At the same time, a jury trial—a highly regulated, inflexible proceeding—is, by its 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 related to past criminality for sentencing purposes into the round hole of the existing processes that govern jury determinations. 

As I have explained, factfinding at trial (before a jury)

and factfinding at sentencing (before a judge) differ procedurally in fundamental ways. See Part I–A, supra. Jury 

factfinding is restricted and regimented, because a jury

trial is “confine[d] . . . to evidence that is strictly relevant to 
 

 

 

24 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

the particular offense charged.” Williams, 337 U. S., at 247. 

Meanwhile, because “[a] sentencing judge . . . is not confined to the narrow issue of guilt,” she is not bound by “strict 

evidentiary procedural limitations”; rather, when determining 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 limitations” 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 evidence—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, without 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.” Apprendi, 530 U. S., at 555 (Breyer, J., dissenting). Even setting aside that a perfectly competent alternative participant in the criminal justice process (the judge) stands ready 

to do this (and can do it quite well, with the flexibility her 
Cite as: 602 U. S. ____ (2024) 25 

JACKSON, J., dissenting 

role 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 occasions 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 occasions finding based solely on so-called Shepard documents, 

which “include judicial records, plea agreements, and colloquies between a judge and the defendant” from the past 

criminal proceeding. Ante, at 15. In the context of a sentencing 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 interpret these sorts of court records. Additionally, during sentencing proceedings, parties’ arguments and evidence are 

not restricted, so based on what the parties find, as well as

what evidence still exists, arguments can be made directly 

to the judge about whether the occasions inquiry is satisfied, including arguments that speak directly to imperfect

recordkeeping and any potentially material gaps. 

Not so for a jury trial—at least not easily. There is a good 

reason why lawyers present live witnesses to juries: Showing 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 context, that explanation could probably 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 Shepard documents related to past crimes in order to make the

occasions finding, that inquiry would probably be even more 
 

 

 

 

26 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

difficult to conduct reliably. Why? First, because, presumably, the original evidence and witnesses related to a defendant’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 hurdles, the rules of evidence would most likely come into 

play—screening out potentially probative considerations. 

By comparison, a sentencing judge can account for imperfections in the evidentiary records and is permitted to consider all manner of inadmissible evidence (such as out-ofcourt affidavits or hearsay testimony) in order to sentence.

See Williams, 337 U. S., at 246.4 

Also, in terms of the most efficient use of the justice system’s limited resources, any witnesses could testify in narrative 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 contrast, such evidence would likely have to satisfy “strict evidentiary procedural limitations,” ibid., such as direct, cross, 

and redirect examination. That 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. Again, how will juries of today actually determine what happened—and why—with 

—————— 4Some courts have held that sentencing judges cannot consider any 

evidence other than Shepard documents when undertaking ACCA’s occasions 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 misunderstanding 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. 
Cite as: 602 U. S. ____ (2024) 27 

JACKSON, J., dissenting 

respect to long-forgotten crimes of yesteryear? Who will 

testify about those crimes (who is still around and remembers)? And where is the physical evidence that was originally 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 penalty 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 conviction from its original holding in Apprendi because of the reality that requiring juries to find recidivism facts is simply 

not doable. See id., at 555 (Breyer, J., dissenting) (emphasizing “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 attentive to practical realities,

especially when it believes it has constitutional theory on 

its side, the majority now plows forward, pushing the Apprendi 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 related to defendants’ past crimes and to handle, in a balanced way, the various practical problems that reliance on 

that kind of evidence raises. All things considered, then, 

committing the factfinding exercise related to ACCA’s occasions inquiry to judges is by far more efficient, and probably 

more fair to participants in the 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 factual findings related to a defendant’s criminal history, as 
 

28 ERLINGER v. UNITED STATES 

JACKSON, J., dissenting 

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

* * * 

Judges take into account all kinds of facts about a criminal offense and the defendant when sentencing—they always 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 “lower” but not “increase” a defendant’s sentence, ante, at 10, n. 1 (emphasis deleted), is a theoretical concept that bears no relationship to how sentencing 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 that they ultimately rely on 

to give a higher sentence than the defendant may have otherwise received) regardless of this Court’s pronouncements

purporting to vindicate defendants’ constitutional rights by

giving juries the responsibility to make those particular factual determinations. Ultimately, then, all the Apprendi

rule accomplishes on the ground is impeding legislative directives to courts about the exercise of judicial discretion

when sentencing—a development that, in my view, does not 

redound to the benefit of defendants collectively, the criminal justice system, or our democratic society. 

In any event, before today, recidivism facts in particular

have been specifically reserved for judges to determine; Apprendi itself expressly exempted the fact of a prior conviction from the rule it was announcing. I would not extend 

the Apprendi rule to cover this kind factfinding now, especially since applying Apprendi to recidivism facts creates a 

host of practical problems that pertain to fairness and efficiency. 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 myriad 
Cite as: 602 U. S. ____ (2024) 29 

JACKSON, J., dissenting 

practical difficulties that arise from this determination, I 

respectfully dissent.