Cite as: 574 U. S. ____ (2014) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

JOSEPH JONES, DESMOND THURSTON, AND 

ANTWUAN BALL v. UNITED STATES
 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE DISTRICT OF
 

COLUMBIA CIRCUIT
 

No. 13–10026. Decided October 14, 2014
 

The petition for a writ of certiorari is denied. 

JUSTICE SCALIA, with whom JUSTICE THOMAS and 

JUSTICE GINSBURG join, dissenting from denial of 

certiorari. 

A jury convicted petitioners Joseph Jones, Desmond 

Thurston, and Antwuan Ball of distributing very small 

amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however,

found that they had engaged in the charged conspiracy

and, relying largely on that finding, imposed sentences 

that petitioners say were many times longer than those 

the Guidelines would otherwise have recommended. 

Petitioners present a strong case that, but for the

judge’s finding of fact, their sentences would have been

“substantively unreasonable” and therefore illegal. See 

Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA, 

J., joined by THOMAS, J., concurring in part and concurring in judgment). If so, their constitutional rights were 

violated. The Sixth Amendment, together with the Fifth

Amendment’s Due Process Clause, “requires that each 

element of a crime” be either admitted by the defendant, 

or “proved to the jury beyond a reasonable doubt.” Alleyne 

v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3).

Any fact that increases the penalty to which a defendant is 

exposed constitutes an element of a crime, Apprendi v. 

New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and 

“must be found by a jury, not a judge,” Cunningham v. 
 

 

 

2 JONES v. UNITED STATES 

SCALIA, J., dissenting 

California, 549 U. S. 270, 281 (2007).* We have held that 

a substantively unreasonable penalty is illegal and must

be set aside. Gall v. United States, 552 U. S. 38, 51 (2007). 

It unavoidably follows that any fact necessary to prevent a

sentence from being substantively unreasonable—thereby 

exposing the defendant to the longer sentence—is an 

element that must be either admitted by the defendant or 

found by the jury. It may not be found by a judge. 

For years, however, we have refrained from saying so.

In Rita v. United States, we dismissed the possibility of 

Sixth Amendment violations resulting from substantive

reasonableness review as hypothetical and not presented 

by the facts of the case. We thus left for another day the 

question whether the Sixth Amendment is violated when 

courts impose sentences that, but for a judge-found fact,

would be reversed for substantive unreasonableness. 551 

U. S., at 353; see also id., at 366 (Stevens, J., joined in 

part by GINSBURG, J., concurring) (“Such a hypothetical

case should be decided if and when it arises”). Nonetheless, the Courts of Appeals have uniformly taken our 

continuing silence to suggest that the Constitution does 

permit otherwise unreasonable sentences supported by

judicial factfinding, so long as they are within the statutory range. See, e.g., United States v. Benkahla, 530 F. 3d 

300, 312 (CA4 2008); United States v. Hernandez, 633 

F. 3d 370, 374 (CA5 2011); United States v. Ashqar, 582 

F. 3d 819, 824–825 (CA7 2009); United States v. Treadwell, 593 F. 3d 990, 1017–1018 (CA9 2010); United States 

v. Redcorn, 528 F. 3d 727, 745–746 (CA10 2008). 

This has gone on long enough. The present petition 

—————— 

*With one exception: We held in Almendarez-Torres v. United States, 

523 U. S. 224 (1998), that the fact of a prior conviction, even when it

increases the sentence to which the defendant is exposed, may be found 

by a judge. But see id., at 248 (SCALIA, J., dissenting); Rangel-Reyes v. 

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

denial of certiorari). 
Cite as: 574 U. S. ____ (2014) 3 

SCALIA, J., dissenting 

presents the nonhypothetical case the Court claimed to

have been waiting for. And it is a particularly appealing

case, because not only did no jury convict these defendants

of the offense the sentencing judge thought them guilty of, 

but a jury acquitted them of that offense. Petitioners were 

convicted of distributing drugs, but acquitted of conspiring 

to distribute drugs. The sentencing judge found that

petitioners had engaged in the conspiracy of which the

jury acquitted them. The Guidelines, petitioners claim,

recommend sentences of between 27 and 71 months for 

their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines 

ranges, and sentenced Jones, Thurston, and Ball to 180, 

194, and 225 months’ imprisonment.

On petitioners’ appeal, the D. C. Circuit held that even if 

their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment 

rights were not violated. 744 F. 3d 1362, 1369 (2014). We 

should grant certiorari to put an end to the unbroken 

string of cases disregarding the Sixth Amendment—or to 

eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are 

substantively reasonable.