(Slip Opinion) OCTOBER TERM, 2006 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 

CUNNINGHAM v. CALIFORNIA 

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

No. 05–6551. Argued October 11, 2006—Decided January 22, 2007 

Petitioner Cunningham was tried and convicted of continuous sexual

abuse of a child under 14. Under California’s determinate sentencing 

law (DSL), that offense is punishable by one of three precise terms of

imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL 

obliged the trial judge to sentence Cunningham to the 12-year middle 

term unless the judge found one or more additional “circumstances in

aggravation.” Court Rules adopted to implement the DSL define “circumstances in aggravation” as facts that justify the upper term. 

Those facts, the Rules provide, must be established by a preponderance of the evidence. Based on a post-trial sentencing hearing, the 

judge found by a preponderance of the evidence six aggravating facts, 

including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct.

Concluding that the aggravators outweighed the sole mitigator, the

judge sentenced Cunningham to the upper term of 16 years. The 

California Court of Appeal affirmed. The State Supreme Court denied review, but in a decision published nine days earlier, People v. 

Black, 35 Cal 4th 1230, 113 P. 3d 534, that court held that the DSL 

survived Sixth Amendment inspection. 

Held: The DSL, by placing sentence-elevating factfinding within the 

judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. Pp. 8–22.

(a) In Apprendi v. New Jersey, this Court held that, under the Sixth 

Amendment, any fact (other than a prior conviction) that exposes a 

defendant to a sentence in excess of the relevant statutory maximum

must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. See 
2 CUNNINGHAM v. CALIFORNIA 

Syllabus 

530 U. S. 466, 490. The Court has applied the rule of Apprendi to 

facts subjecting a defendant to the death penalty, Ring v. Arizona, 

536 U. S. 584, 602, 609, facts permitting a sentence in excess of the 

“standard range” under Washington’s Sentencing Reform Act (Reform Act), Blakely v. Washington, 542 U. S. 296, 304–305, and facts 

triggering a sentence range elevation under the then-mandatory 

Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 

220, 243–244. Blakely and Booker bear most closely on the question 

presented here.

The maximum penalty for Blakely’s offense, under Washington’s 

Reform Act, was ten years’ imprisonment, but if no facts beyond 

those reflected in the jury’s verdict were found by the trial judge, 

Blakely could not receive a sentence above a standard range of 49 to

53 months. Blakely was sentenced to 90 months, more than three 

years above the standard range, based on the judge’s finding of deliberate cruelty. Applying Apprendi, this Court held the sentence unconstitutional. The State in Blakely endeavored to distinguish Apprendi, contending that Blakely’s sentence was within the judge’s 

discretion based solely on the guilty verdict. The Court dismissed 

that argument. Blakely could not have been sentenced above the

standard range absent an additional fact. Consequently, that fact

was subject to the Sixth Amendment’s jury-trial guarantee. It did 

not matter that Blakely’s sentence, though outside the standard 

range, was within the 10-year maximum. Because the judge could 

not have imposed a sentence outside the standard range without 

finding an additional fact, the top of that range—53 months, not 10

years—was the relevant statutory maximum. The Court also rejected the State’s arguments that Apprendi was satisfied because the 

Reform Act did not specify an exclusive catalog of facts on which a 

judge might base a departure from the standard range, and because

it ultimately left the decision whether or not to depart to the judge’s

discretion. 

Booker was sentenced under the Federal Sentencing Guidelines. 

The facts found by the jury yielded a base Guidelines range of 210 to

262 months’ imprisonment, a range the judge could not exceed without undertaking additional factfinding. The judge did so, making a 

finding that boosted Booker into a higher Guidelines range. This 

Court held Booker’s sentence impermissible under the Sixth Amendment. There was “no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely].” 543 U. S., at 233. Both were “mandatory

and impose[d] binding requirements on all sentencing judges.” Ibid. 

All Members of the Court agreed, however, that the Guidelines would 

not implicate the Sixth Amendment if they were advisory. Ibid. Fac-
Cite as: 549 U. S. ____ (2007) 3 

Syllabus 

ing the remedial question, the Court concluded that rendering the 

Guidelines advisory came closest to what Congress would have intended had it known that the Guidelines were vulnerable to a Sixth 

Amendment challenge. Under the advisory Guidelines system described in Booker, judges would no longer be confined to the sentencing range dictated by the Guidelines, but would be obliged to “take

account” of that range along with the sentencing goals enumerated in 

the Sentencing Reform Act (SRA). Id., at 259, 264. In place of the

SRA provision governing appellate review of sentences under the 

mandatory Guidelines scheme, the Court installed a “reasonableness”

standard of review. Id., at 261. Pp. 8–15.

(b) In all material respects, California’s DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the 

reasoning in those cases, the middle term prescribed under California 

law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by 

the judge, and need only be established by a preponderance of the 

evidence, the DSL violates the rule of Apprendi. 

While “that should be the end of the matter,” Blakely, 542 U. S., at 

313, in People v. Black, the California Supreme Court insisted that 

the DSL survives inspection under our precedents. The Black court 

reasoned that, given the ample discretion afforded trial judges to

identify aggravating facts warranting an upper term sentence, the 

DSL did “not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge),” 35 Cal. 4th, at 1255–1256,

113 P. 3d, at 543–544. This Court cautioned in Blakely, however, 

that broad discretion to decide what facts may support an enhanced 

sentence, or to determine whether an enhanced sentence is warranted in a particular case, does not shield a sentencing system from

the force of this Court’s decisions. The Black court also urged that 

the DSL is not cause for concern because it reduced the penalties for

most crimes over the prior indeterminate sentencing scheme; because 

the system is fair to defendants; and because the DSL requires statutory sentence enhancements (as distinguished from aggravators) to

be charged in the indictment and proved to a jury beyond a reasonable doubt. The Black court’s examination, in short, satisfied it that 

California’s sentencing system does not implicate significantly the 

concerns underlying the Sixth Amendment’s jury-trial guarantee. 

This Court’s decisions, however, leave no room for such an examination. Asking whether a defendant’s basic jury-trial right is preserved, 

though some facts essential to punishment are reserved for determination by the judge, is the very inquiry Apprendi’s bright-line rule 

was designed to exclude. 
4 CUNNINGHAM v. CALIFORNIA 

Syllabus 

 Ultimately, the Black court relied on an equation of California’s 

DSL to the post-Booker federal system. That attempted comparison 

is unavailing. The Booker Court held the Federal Guidelines incompatible with the Sixth Amendment because they were “mandatory

and impose[d] binding requirements on all sentencing judges,” 543 

U. S., at 233. To remedy the constitutional infirmity, the Court excised provisions that rendered the system mandatory, leaving the 

Guidelines in place as advisory only. The DSL, however, does not resemble the advisory system the Court in Booker had in view. Under 

California’s system, judges are not free to exercise their “discretion to

select a specific sentence within a defined range.” Ibid. California’s 

Legislature has adopted sentencing triads, three fixed sentences with

no ranges between them. Cunningham’s sentencing judge had no 

discretion to select a sentence within a range of 6 to 16 years, but had

to impose 12 years, nothing less and nothing more, unless the judge 

found facts allowing a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years, this Court’s decisions make

plain, falls within the province of the jury employing a beyond-areasonable-doubt standard, not the bailiwick of a judge determining

where the preponderance of the evidence lies.

The Black court attempted to rescue the DSL’s judicial factfinding

authority by typing it a reasonableness constraint, equivalent to the

constraint operative in the post-Booker federal system. Reasonableness, however, is not the touchstone of Sixth Amendment analysis.

The reasonableness requirement Booker anticipated for the federal 

system operates within the constitutional constraints delineated in 

this Court’s precedent, not as a substitute for those constraints. Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates

the Sixth Amendment. Booker’s remedy for the Federal Guidelines,

in short, is not a recipe for rendering this Court’s Sixth Amendment

case law toothless. Further elaboration here on the federal reasonableness standard is neither necessary nor proper. The Court has 

granted review in two cases—to be argued and decided later this

Term—raising questions trained on that matter. Claiborne v. United 

States, No. 06–5618; Rita v. United States, No. 06–5754. Pp. 15–21.

(c) As to the adjustment of California’s sentencing system in light 

of the Court’s ruling, “[t]he ball . . . lies in [California’s] court.” 

Booker, 543 U. S., at 265. Several States have modified their systems 

in the wake of Apprendi and Blakely to retain determinate sentencing, by calling upon the jury to find any fact necessary to the imposition of an elevated sentence. Other States have chosen to permit

judges genuinely “to exercise broad discretion . . . within a statutory

range,” which, “everyone agrees,” encounters no Sixth Amendment 
Cite as: 549 U. S. ____ (2007) 5 

Syllabus 

shoal. Id., at 233. California may follow the paths taken by its sister

States or otherwise alter its system, so long as it observes Sixth

Amendment limitations declared in this Court’s decisions. Pp. 21–22. 

Reversed in part and remanded. 

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

C. J., and STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which BREYER, J., joined. ALITO, 

J., filed a dissenting opinion, in which KENNEDY and BREYER, JJ., 

joined. 
_________________ 

_________________ 

Cite as: 549 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 05–6551 

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007] 

JUSTICE GINSBURG delivered the opinion of the Court. 

California’s determinate sentencing law (DSL) assigns

to the trial judge, not to the jury, authority to find the 

facts that expose a defendant to an elevated “upper term” 

sentence. The facts so found are neither inherent in the 

jury’s verdict nor embraced by the defendant’s plea, and 

they need only be established by a preponderance of the 

evidence, not beyond a reasonable doubt. The question 

presented is whether the DSL, by placing sentenceelevating factfinding within the judge’s province, violates 

a defendant’s right to trial by jury safeguarded by the

Sixth and Fourteenth Amendments. We hold that it does. 

As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme

that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. 

Apprendi v. New Jersey, 530 U. S. 466 (2000); Ring v. 

Arizona, 536 U. S. 584 (2002); Blakely v. Washington, 542 

U. S. 296 (2004); United States v. Booker, 543 U. S. 220 

(2005). “[T]he relevant ‘statutory maximum,’” this Court

has clarified, “is not the maximum sentence a judge may 
2 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

impose after finding additional facts, but the maximum he 

may impose without any additional findings.” Blakely, 542 

U. S., at 303–304 (emphasis in original). In petitioner’s

case, the jury’s verdict alone limited the permissible sentence to 12 years. Additional factfinding by the trial

judge, however, yielded an upper term sentence of 16 

years. The California Court of Appeal affirmed the 

harsher sentence. We reverse that disposition because the 

four-year elevation based on judicial factfinding denied 

petitioner his right to a jury trial. 

I 

A 

Petitioner John Cunningham was tried and convicted of 

continuous sexual abuse of a child under the age of 14. 

Under the DSL, that offense is punishable by imprisonment for a lower term sentence of 6 years, a middle term 

sentence of 12 years, or an upper term sentence of 16 

years. Cal. Penal Code Ann. §288.5(a) (West 1999) (hereinafter Penal Code). As further explained below, see infra, 

at 4–7, the DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge

found one or more additional facts in aggravation. Based 

on a post-trial sentencing hearing, the trial judge found by 

a preponderance of the evidence six aggravating circumstances, among them, the particular vulnerability of Cunningham’s victim, and Cunningham’s violent conduct, 

which indicated a serious danger to the community. Tr. of 

Sentencing (Aug. 1, 2003), App. 22.1 In mitigation, the

judge found one fact: Cunningham had no record of prior

criminal conduct. Ibid. Concluding that the aggravators 

—————— 

1The particular vulnerability of the victim is listed in Cal. Rule of

Court 4.421(a)(3) (Criminal Cases) (West 2006) (hereinafter Rule), as 

a fact “relating to the crime.” Violent conduct indicating a serious 

danger to society is listed in Rule 4.421(b)(1) as a fact “relating to the

defendant.” 
Cite as: 549 U. S. ____ (2007) 3 

Opinion of the Court 

outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years. Id., at 23. 

A panel of the California Court of Appeal affirmed the 

conviction and sentence; one judge dissented in part, 

urging that this Court’s precedent precluded the judgedetermined four-year increase in Cunningham’s sentence. 

No. A103501 (Apr. 18, 2005), App. 43–48; id., at 48–50 

(Jones, J., concurring in part and dissenting in part).2 The 

California Supreme Court denied review. No. S133971 

(June 29, 2005) (en banc), id., at 52. In a reasoned decision published nine days earlier, that court considered the 

question here presented and held that the DSL survived

Sixth Amendment inspection. People v. Black, 35 Cal. 4th 

1238, 113 P. 3d 534 (June 20, 2005). 

B 

Enacted in 1977, the DSL replaced an indeterminate

sentencing regime in force in California for some 60 years.

See id., at 1246, 113 P. 3d, at 537; Cassou & Taugher,

Determinate Sentencing in California: The New Numbers

Game, 9 Pac. L. J. 5, 6–22 (1978) (hereinafter Cassou & 

Taugher). Under the prior regime, courts imposed openended prison terms (often one year to life), and the parole

board—the Adult Authority—determined the amount of 

time a felon would ultimately spend in prison. Black, 35 

Cal. 4th, at 1246, 1256, 113 P. 3d, at 537, 544; In re Rob-

—————— 

2 In addition to a Sixth Amendment challenge, Cunningham disputed 

the substance of five of the six findings made by the trial judge. The 

appellate panel affirmed the trial judge’s vulnerable victim and violent 

conduct findings, but rejected the finding that Cunningham abused a 

position of trust (because that finding overlapped with the vulnerable 

victim finding). The panel did not decide whether the judge’s other

findings were warranted, concluding that she properly relied on at least

two aggravating facts in imposing the upper term, and that it was not

“reasonably probable” that a different sentence would have been 

imposed absent any improper findings. App. 43–46; id., at 51 (May 4, 

2005, order modifying opinion and denying rehearing). 
4 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

erts, 36 Cal. 4th 575, 588, n. 6, 115 P. 3d 1121, 1129, n. 6 

(2005); Cassou & Taugher 5–9. In contrast, the DSL fixed 

the terms of imprisonment for most offenses, and eliminated the possibility of early release on parole. See Penal 

Code §3000 et seq. (West Supp. 2006); 3 B. Witkin & N. 

Epstein, California Criminal Law §610, p. 809 (3d ed.

2000); Brief for Respondent 7.3 Through the DSL, California’s lawmakers aimed to promote uniform and proportionate punishment. Penal Code §1170(a)(1); Black, 35 

Cal. 4th, at 1246, 113 P. 3d, at 537. 

For most offenses, including Cunningham’s, the DSL 

regime is implemented in the following manner. The 

statute defining the offense prescribes three precise terms 

of imprisonment—a lower, middle, and upper term sentence. E.g., Penal Code §288.5(a) (West 1999) (a person

convicted of continuous sexual abuse of a child “shall be 

punished by imprisonment in the state prison for a term of 

6, 12, or 16 years”). See also Black, 35 Cal. 4th, at 1247, 

113 P. 3d, at 538. Penal Code §1170(b) (West Supp. 2006) 

controls the trial judge’s choice; it provides that “the court

shall order imposition of the middle term, unless there are

circumstances in aggravation or mitigation of the crime.” 

“[C]ircumstances in aggravation or mitigation” are to be

determined by the court after consideration of several 

items: the trial record; the probation officer’s report;

statements in aggravation or mitigation submitted by the

parties, the victim, or the victim’s family; “and any further

evidence introduced at the sentencing hearing.” Ibid. 

The DSL directed the State’s Judicial Council4 to adopt 

—————— 

3Murder and certain other grave offenses still carry lengthy indeterminate terms with the possibility of early release on parole. Brief for 

Respondent 7, n. 2. See, e.g., Penal Code §190 (West Supp. 2006). 4The Judicial Council includes the chief justice and another justice of

the California Supreme Court, three judges sitting on the Courts of 

Appeal, ten judges from the Superior Courts, and other nonvoting 

members. Cal. Const., Art. 6, §6(a) (West Supp. 2006). The California 
Cite as: 549 U. S. ____ (2007) 5 

Opinion of the Court 

Rules guiding the sentencing judge’s decision whether to 

“[i]mpose the lower or upper prison term.” Penal Code 

§1170.3(a)(2) (West 2004).5 Restating §1170(b), the Council’s Rules provide that “[t]he middle term shall be selected

unless imposition of the upper or lower term is justified by 

circumstances in aggravation or mitigation.” Rule 

4.420(a). “Circumstances in aggravation,” as crisply defined by the Judicial Council, means “facts which justify 

the imposition of the upper prison term.” Rule 4.405(d)

(emphasis added). Facts aggravating an offense, the Rules 

instruct, “shall be established by a preponderance of the

evidence,” Rule 4.420(b),6 and must be “stated orally on

the record.” Rule 4.420(e).

The Rules provide a nonexhaustive list of aggravating 

circumstances, including “[f]acts relating to the crime,”

Rule 4.421(a),7 “[f]acts relating to the defendant,” Rule 

4.421(b),8 and “[a]ny other facts statutorily declared to be

circumstances in aggravation,” Rule 4.421(c). Beyond the

enumerated circumstances, “the judge is free to consider 

any ‘additional criteria reasonably related to the decision

being made.’” Black, 35 Cal. 4th, at 1247, 113 P. 3d, at 

538 (quoting Rule 4.408(a)). “A fact that is an element of 

—————— 

Constitution grants the Council authority, inter alia, “to adopt rules for 

court administration, practice and procedure, and perform other 

functions prescribed by statute.” Art. 6, §6(d). 5The Rules were amended on January 1, 2007. Those amendments 

made technical changes, none of them material to the constitutional

question before us. We refer in this opinion to the prior text of the

Rules, upon which the parties and principal authorities rely. 6The judge must provide a statement of reasons for a sentence only 

when a lower or upper term sentence is imposed. Rules 4.406(b), 

4.420(e). 7E.g., Rule 4.421(a)(1) (“[T]he fact that . . . [t]he crime involved great 

violence, great bodily harm, threat of great bodily harm, or other acts

disclosing a high degree of cruelty, viciousness, or callousness.”). 8 E.g., Rule 4.421(b)(1) (“[T]he fact that . . . [t]he defendant has engaged in violent conduct which indicates a serious danger to society.”). 
6 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

the crime,” however, “shall not be used to impose the 

upper term.” Rule 4.420(d). In sum, California’s DSL, and 

the rules governing its application, direct the sentencing

court to start with the middle term, and to move from that 

term only when the court itself finds and places on the

record facts—whether related to the offense or the offender—beyond the elements of the charged offense. 

JUSTICE ALITO maintains, however, that a circumstance 

in aggravation need not be a fact at all. In his view, a 

policy judgment, or even a judge’s “subjective belief” regarding the appropriate sentence, qualifies as an aggravating circumstance. Post, at 11–12 (dissenting opinion). 

California’s Rules, however, constantly refer to “facts.” As

just noted, the Rules define “circumstances in aggravation” as “facts which justify the imposition of the upper 

prison term.” Rule 4.405(d) (emphasis added).9 And 

“circumstances in aggravation,” the Rules unambiguously 

declare, “shall be established by a preponderance of the

evidence,” Rule 4.420(b), a clear factfinding directive to 

which there is no exception. See People v. Hall, 8 Cal. 4th 

950, 957, 883 P. 2d 974, 978 (1994) (“Selection of the upper 

term is justified only if circumstances in aggravation are

established by a preponderance of evidence . . . .” (emphasis added)).

While the Rules list “[g]eneral objectives of sentencing,” 

Rule 4.410(a), nowhere are these objectives cast as “circumstances in aggravation” that alone authorize an upper 

term sentence. The Rules also state that “[t]he enumeration . . . of some criteria for the making of discretionary

sentencing decisions does not prohibit the application of 

—————— 

9See also, e.g., Rule 4.420(b) (“Selection of the upper term is justified

only if, after a consideration of all the relevant facts, the circumstances 

in aggravation outweigh the circumstances in mitigation.” (emphasis

added)); Rule 4.420(e) (court must provide “a concise statement of the

ultimate facts that the court deemed to constitute circumstances in 

aggravation or mitigation” (emphasis added)). 
Cite as: 549 U. S. ____ (2007) 7 

Opinion of the Court 

additional criteria reasonably related to the decision being 

made.” Rule 4.408(a). California courts have not read this

language to unmoor “circumstances in aggravation” from 

any factfinding anchor.

In line with the Rules, the California Supreme Court 

has repeatedly referred to circumstances in aggravation as 

facts. See, e.g., Black, 35 Cal. 4th, at 1256, 113 P. 3d, at 

544 (“The Legislature did not identify all of the particular 

facts that could justify the upper term.” (emphasis added)); 

People v. Wiley, 9 Cal. 4th 580, 587, 889 P. 2d 541, 545 

(1995) (“[T]rial courts are assigned the task of deciding

whether to impose an upper or lower term of imprisonment based upon their determination whether there are

circumstances in aggravation or mitigation of the crime, a 

determination that invariably requires numerous factual 

findings.” (emphasis added and internal quotation marks

omitted)).

It is unsurprising, then, that State’s counsel, at oral 

argument, acknowledged that he knew of no case in which

a California trial judge had gone beyond the middle term 

based not on any fact the judge found, but solely on the 

basis of a policy judgment or subjective belief. See Tr. of 

Oral Arg. 49–50. 

Notably, the Penal Code permits elevation of a sentence

above the upper term based on specified statutory enhancements relating to the defendant’s criminal history or

circumstances of the crime. See, e.g., Penal Code §667 et 

seq. (West Supp. 2006); §12022 et seq. See also Black, 35 

Cal. 4th, at 1257, 113 P. 3d, at 545. Unlike aggravating

circumstances, statutory enhancements must be charged 

in the indictment, and the underlying facts must be 

proved to the jury beyond a reasonable doubt. Penal Code 

§1170.1(e); Black, 35 Cal. 4th, at 1257, 113 P. 3d, at 545. 

A fact underlying an enhancement cannot do double duty; 

it cannot be used to impose an upper term sentence and, 

on top of that, an enhanced term. Penal Code §1170(b). 
8 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

Where permitted by statute, however, a judge may use a

fact qualifying as an enhancer to impose an upper term 

rather than an enhanced sentence. Ibid.; Rule 4.420(c). 

II 

This Court has repeatedly held that, under the Sixth

Amendment, any fact that exposes a defendant to a

greater potential sentence must be found by a jury, not a

judge, and established beyond a reasonable doubt, not 

merely by a preponderance of the evidence. While this 

rule is rooted in longstanding common-law practice, its 

explicit statement in our decisions is recent. In Jones v. 

United States, 526 U. S. 227 (1999), we examined the

Sixth Amendment’s historical and doctrinal foundations, 

and recognized that judicial factfinding operating to increase a defendant’s otherwise maximum punishment

posed a grave constitutional question. Id., at 239–252. 

While the Court construed the statute at issue to avoid the 

question, the Jones opinion presaged our decision, some 15 

months later, in Apprendi v. New Jersey, 530 U. S. 466 

(2000).

Charles Apprendi was convicted of possession of a firearm for an unlawful purpose, a second-degree offense

under New Jersey law punishable by five to ten years’

imprisonment. Id., at 468. A separate “hate crime” statute authorized an “extended term” of imprisonment: Ten

to twenty years could be imposed if the trial judge found, 

by a preponderance of the evidence, that “‘[t]he defendant 

in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race,

color, gender, handicap, religion, sexual orientation or

ethnicity.’” Id., at 468–469 (quoting N. J. Stat. Ann. 

§2C:44–3(e) (West Supp. 1999–2000)). The judge in Apprendi’s case so found, and therefore sentenced the defendant to 12 years’ imprisonment. This Court held that the 

Sixth Amendment proscribed the enhanced sentence. 530 
Cite as: 549 U. S. ____ (2007) 9 

Opinion of the Court 

U. S., at 471. Other than a prior conviction, see Almendarez-Torres v. United States, 523 U. S. 224, 239–247 

(1998), we held in Apprendi, “any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U. S., at 490. See also Harris v. 

United States, 536 U. S. 545, 557–566 (2002) (plurality 

opinion) (“Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by

the jury’s verdict would have been considered an element 

of an aggravated crime—and thus the domain of the 

jury—by those who framed the Bill of Rights.”). 

We have since reaffirmed the rule of Apprendi, applying

it to facts subjecting a defendant to the death penalty, 

Ring v. Arizona, 536 U. S. 584, 602, 609 (2002), facts

permitting a sentence in excess of the “standard range”

under Washington’s Sentencing Reform Act, Blakely v. 

Washington, 542 U. S. 296, 304–305 (2004), and facts

triggering a sentence range elevation under the thenmandatory Federal Sentencing Guidelines, United States 

v. Booker, 543 U. S. 220, 243–244 (2005). Blakely and 

Booker bear most closely on the question presented in this 

case. 

Ralph Howard Blakely was convicted of second-degree

kidnapping with a firearm, a class B felony under Washington law. Blakely, 542 U. S., at 298–299. While the 

overall statutory maximum for a class B felony was ten 

years, the State’s Sentencing Reform Act (Reform Act)

added an important qualification: If no facts beyond those 

reflected in the jury’s verdict were found by the trial judge, 

a defendant could not receive a sentence above a “standard 

range” of 49 to 53 months. Id., at 299–300. The Reform 

Act permitted but did not require a judge to exceed that 

standard range if she found “‘substantial and compelling 

reasons justifying an exceptional sentence.’” Ibid. (quoting Wash. Rev. Code Ann. §9.94A.120(2) (2000)). The 
10 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

Reform Act set out a nonexhaustive list of aggravating 

facts on which such a sentence elevation could be based. 

It also clarified that a fact taken into account in fixing the 

standard range—i.e., any fact found by the jury—could 

under no circumstances count in the determination 

whether to impose an exceptional sentence. 542 U. S., at 

299–300. Blakely was sentenced to 90 months’ imprisonment, more than three years above the standard range,

based on the trial judge’s finding that he had acted with

deliberate cruelty. Id., at 300. 

Applying the rule of Apprendi, this Court held Blakely’s 

sentence unconstitutional. The State in Blakely had 

endeavored to distinguish Apprendi on the ground that

“[u]nder the Washington guidelines, an exceptional sentence is within the court’s discretion as a result of a guilty

verdict.” Brief for Respondent in Blakely v. Washington, 

O.T. 2003, No. 02–1632, p. 15. We rejected that argument. 

The judge could not have sentenced Blakely above the 

standard range without finding the additional fact of 

deliberate cruelty. Consequently, that fact was subject to

the Sixth Amendment’s jury-trial guarantee. 542 U. S., at 

304–314. It did not matter, we explained, that Blakely’s

sentence, though outside the standard range, was within 

the 10-year maximum for class B felonies: 

“Our precedents make clear . . . that the ‘statutory

maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the 

facts reflected in the jury verdict or admitted by the defendant . . . . In other words, the relevant ‘statutory

maximum’ is not the maximum sentence a judge may

impose after finding additional facts, but the maximum he may impose without any additional findings. 

When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all 

the facts ‘which the law makes essential to the pun-
Cite as: 549 U. S. ____ (2007) 11 

Opinion of the Court 

ishment,’ . . . and the judge exceeds his proper authority.” Id., at 303 (emphasis in original) (quoting 1 J. 

Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)). 

Because the judge in Blakely’s case could not have 

imposed a sentence outside the standard range without 

finding an additional fact, the top of that range—53

months, and not 10 years—was the relevant statutory 

maximum. 542 U. S., at 304. 

The State had additionally argued in Blakely that Apprendi’s rule was satisfied because Washington’s Reform

Act did not specify an exclusive catalog of potential facts 

on which a judge might base a departure from the standard range. This Court rejected that argument as well.

“Whether the judge’s authority to impose an enhanced 

sentence depends on finding a specified fact . . . one of 

several specified facts . . . or any aggravating fact (as

here),” we observed, “it remains the case that the jury’s

verdict alone does not authorize the sentence.” 542 U. S., 

at 305 (emphasis in original). Further, we held it irrelevant that the Reform Act ultimately left the decision 

whether or not to depart to the judge’s discretion: 

“Whether the judicially determined facts require a sentence enhancement or merely allow it,” we noted, “the 

verdict alone does not authorize the sentence.” Ibid., n. 8 

(emphasis in original). 

Freddie Booker was convicted of possession with intent

to distribute crack cocaine and was sentenced under the 

Federal Sentencing Guidelines. The facts found by

Booker’s jury yielded a base Guidelines range of 210 to 262

months’ imprisonment, a range the judge could not exceed 

without undertaking additional factfinding. Booker, 543 

U. S., at 227, 233–234. The judge did so, finding by a

preponderance of the evidence that Booker possessed an

amount of drugs in excess of the amount determined by 

the jury’s verdict. That finding boosted Booker into a 
12 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

higher Guidelines range. Booker was sentenced at the 

bottom of the higher range, to 360 months in prison. Id., 

at 227. 

In an opinion written by JUSTICE STEVENS for a fiveMember majority, the Court held Booker’s sentence impermissible under the Sixth Amendment. In the majority’s judgment, there was “no distinction of constitutional 

significance between the Federal Sentencing Guidelines

and the Washington procedures at issue in [Blakely].” Id., 

at 233. Both systems were “mandatory and impose[d] 

binding requirements on all sentencing judges.” Ibid.10 

JUSTICE STEVENS’ opinion for the Court, it bears emphasis, next expressed a view on which there was no disagreement among the Justices. He acknowledged that the 

Federal Guidelines would not implicate the Sixth Amendment were they advisory: 

“If the Guidelines as currently written could be read

as merely advisory provisions that recommended, 

rather than required, the selection of particular sentences in response to differing sets of facts, their use 

would not implicate the Sixth Amendment. We have 

never doubted the authority of a judge to exercise 

broad discretion in imposing a sentence within a 

statutory range. Indeed, everyone agrees that the 

constitutional issues presented by [this case] would 

have been avoided entirely if Congress had omitted 

—————— 

10California’s DSL, we note in this context, resembles pre-Booker 

federal sentencing in the same ways Washington’s sentencing system 

did: The key California Penal Code provision states that the sentencing

court “shall order imposition of the middle term” absent “circumstances

in aggravation or mitigation of the crime,” §1170(b) (emphasis added),

and any move to the upper or lower term must be justified by “a concise

statement of the ultimate facts” on which the departure rests, Rule 

4.420(e) (emphasis added). But see post, at 7 (ALITO, J., dissenting)

(characterizing California’s DSL as indistinguishable from post-Booker 

sentencing). 
Cite as: 549 U. S. ____ (2007) 13 

Opinion of the Court 

from the [federal Sentencing Reform Act] the provisions that make the Guidelines binding on district

judges . . . . For when a trial judge exercises his discretion to select a specific sentence within a defined

range, the defendant has no right to a jury determination of the facts that the judge deems relevant. 

“The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.” 

Ibid. (citations omitted). 

In an opinion written by JUSTICE BREYER, also garnering a five-Member majority, the Court faced the remedial 

question, which turned on an assessment of legislative 

intent: What alteration would Congress have intended had

it known that the Guidelines were vulnerable to a Sixth 

Amendment challenge? Three choices were apparent: the 

Court could invalidate in its entirety the Sentencing Reform Act of 1984 (SRA), the law comprehensively delineating the federal sentencing system; or it could preserve the

SRA, and the mandatory Guidelines regime the SRA 

established, by attaching a jury-trial requirement to any 

fact increasing a defendant’s base Guidelines range; finally, the Court could render the Guidelines advisory by

severing two provisions of the SRA, 18 U. S. C. §3553(b)(1) 

and 3742(e) (2000 ed. and Supp. IV). 543 U. S., at 246– 

249.11 Recognizing that “reasonable minds can, and do, 

—————— 

11Title 18 U. S. C. §3553(b)(1) mandated the imposition of a Guidelines sentence unless the district court found “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into 

consideration by the Sentencing Commission in formulating the guidelines.” Section 3742(e) directed the court of appeals to determine, inter 

alia, whether the district court correctly applied the Guidelines,

§3742(e)(2), and, if the sentence imposed fell outside the applicable

Guidelines range, whether the sentencing judge had provided a written 

statement of reasons, whether §3553(b) and the facts of the case warranted the departure, and whether the degree of departure was reasonable, §3742(e)(3). 
14 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

differ” on the remedial question, the majority concluded 

that the advisory Guidelines solution came closest to the 

congressional mark. Id., at 248–258. 

Under the system described in JUSTICE BREYER’s opinion for the Court in Booker, judges would no longer be tied 

to the sentencing range indicated in the Guidelines. But 

they would be obliged to “take account of” that range along

with the sentencing goals Congress enumerated in the

SRA at 18 U. S. C. §3553(a). 543 U. S., at 259, 264.12 

Having severed §3742(e), the provision of the SRA governing appellate review of sentences under the mandatory 

Guidelines scheme, see supra, at 13, and n. 11, the Court 

installed, as consistent with the Act and the sound administration of justice, a “reasonableness” standard of 

review. 543 U. S., at 261. Without attempting an elaborate discussion of that standard, JUSTICE BREYER’s remedial opinion for the Court observed: “Section 3553(a) remains in effect, and sets forth numerous factors that guide 

sentencing. Those factors in turn will guide appellate 

courts, as they have in the past, in determining whether a 

sentence is reasonable.” Ibid.13 The Court emphasized 

—————— 

12Section 3553(a) instructs sentencing judges to consider “the nature

and circumstances of the offense and the history and characteristics of

the defendant,” “the kinds of sentences available,” and the Guidelines 

and policy statements issued by the United States Sentencing Commission. §3553(a)(1), (3)–(5). Avoidance of unwarranted sentencing 

disparities, and the need to provide restitution, are also listed as 

concerns to which the judge should respond. §3553(a)(6)–(7). 

In a further enumeration, §3553(a) calls for the imposition of “a sentence sufficient, but not greater than necessary” to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal 

conduct,” “protect the public from further crimes of the defendant,” and 

“provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective 

manner.” §3553(a)(2). 13While this case does not call for elaboration of the reasonableness 

check on federal sentencing post-Booker, we note that the Court has 
Cite as: 549 U. S. ____ (2007) 15 

Opinion of the Court 

the provisional character of the Booker remedy. Recognizing that authority to speak “the last word” resides in

Congress, the Court said: 

“The ball now lies in Congress’ court. The National 

Legislature is equipped to devise and install, long 

term, the sentencing system, compatible with the

Constitution, that Congress judges best for the federal 

system of justice.” Id., at 265. 

We turn now to the instant case in light of both parts of

the Court’s Booker opinion, and our earlier decisions in 

point. 

III 

Under California’s DSL, an upper term sentence may be

imposed only when the trial judge finds an aggravating

circumstance. See supra, at 4–5. An element of the 

charged offense, essential to a jury’s determination of 

guilt, or admitted in a defendant’s guilty plea, does not 

qualify as such a circumstance. See supra, at 5–6. Instead, aggravating circumstances depend on facts found 

discretely and solely by the judge. In accord with Blakely, 

therefore, the middle term prescribed in California’s stat-

—————— 

granted review in two cases raising questions trained on that matter: 

Claiborne v. United States, No. 06–5618 (cert. granted, Nov. 3, 2006); 

and Rita v. United States, No. 06–5754 (cert. granted, Nov. 3, 2006). In 

Claiborne, the Court will consider whether it is consistent with the 

advisory cast of the Guidelines system post-Booker to require that

extraordinary circumstances attend a sentence varying substantially 

from the Guidelines. Rita includes the question whether is it consistent 

with Booker to accord a presumption of reasonableness to a withinGuidelines sentence. 

In this regard, we note JUSTICE ALITO’s view that California’s DSL is 

essentially the same as post-Booker federal sentencing. Post, at 1–10. 

To maintain that position, his dissent previews, without benefit of

briefing or argument, how “reasonableness review,” post-Booker, works. 

Post, at 13–15. It is neither necessary nor proper now to join issue with 

JUSTICE ALITO on this matter. 
16 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

utes, not the upper term, is the relevant statutory maximum. 542 U. S., at 303 (“[T]he ‘statutory maximum’ for 

Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury 

verdict or admitted by the defendant.” (emphasis in original)). Because circumstances in aggravation are found by 

the judge, not the jury, and need only be established by a 

preponderance of the evidence, not beyond a reasonable 

doubt, see supra, at 5, the DSL violates Apprendi’s brightline rule: Except for a prior conviction, “any fact that 

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.” 530 U. S., at 490. 

While “[t]hat should be the end of the matter,” Blakely, 

542 U. S., at 313, in People v. Black, the California Supreme Court held otherwise. In that court’s view, the DSL 

survived examination under our precedent intact. See 35 

Cal. 4th, at 1254–1261, 113 P. 3d, at 543–548. The Black 

court acknowledged that California’s system appears on 

surface inspection to be in tension with the rule of Apprendi. But in “operation and effect,” the court said, the

DSL “simply authorize[s] a sentencing court to engage in 

the type of factfinding that traditionally has been incident 

to the judge’s selection of an appropriate sentence within a

statutorily prescribed sentencing range.” 35 Cal. 4th, at 

1254, 113 P. 3d, at 543. Therefore, the court concluded, 

“the upper term is the ‘statutory maximum’ and a trial 

court’s imposition of an upper term sentence does not 

violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.” Ibid. 

But see id., at 1270, 113 P. 3d, at 554 (Kennard, J., concurring and dissenting) (“Nothing in the high court’s

majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state’s sentencing 

scheme turns on whether, in the words of the majority

here, it involves the type of factfinding ‘that traditionally 
Cite as: 549 U. S. ____ (2007) 17 

Opinion of the Court 

has been performed by a judge.’” (quoting id., at 1253, 113 

P. 3d, at 542)).

The Black court’s conclusion that the upper term, and

not the middle term, qualifies as the relevant statutory 

maximum, rested on several considerations. First, the 

court reasoned that, given the ample discretion afforded

trial judges to identify aggravating facts warranting an

upper term sentence, the DSL 

“does not represent a legislative effort to shift the

proof of particular facts from elements of a crime (to 

be proved to a jury) to sentencing factors (to be decided by a judge). . . . Instead, it afforded the sentencing judge the discretion to decide, with the guidance of 

rules and statutes, whether the facts of the case and 

the history of the defendant justify the higher sentence. Such a system does not diminish the traditional power of the jury.” Id., at 1256, 113 P. 3d, at 

544 (footnote omitted). 

We cautioned in Blakely, however, that broad discretion 

to decide what facts may support an enhanced sentence, or 

to determine whether an enhanced sentence is warranted 

in any particular case, does not shield a sentencing system

from the force of our decisions. If the jury’s verdict alone

does not authorize the sentence, if, instead, the judge must 

find an additional fact to impose the longer term, the Sixth

Amendment requirement is not satisfied. Blakely, 542 

U. S., at 305, and n. 8. 

The Black court also urged that the DSL is not cause for 

concern because it reduced the penalties for most crimes 

over the prior indeterminate sentencing regime. 35 Cal. 

4th, at 1256–1258, 113 P. 3d, at 544–545. But see id., at 

1271–1272, 113 P. 3d, at 555 (Kennard, J., concurring and 

dissenting) (“This aspect of our sentencing law does not

differ significantly from the Washington sentencing 

scheme [the high court invalidated in Blakely.]”); supra, at 
18 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

10. Furthermore, California’s system is not unfair to 

defendants, for they “cannot reasonably expect a guarantee that the upper term will not be imposed” given judges’ 

broad discretion to impose an upper term sentence or to

keep their punishment at the middle term. 35 Cal. 4th, at 

1258–1259, 113 P. 3d, at 545–546. The Black court additionally noted that the DSL requires statutory enhancements (as distinguished from aggravators)—e.g., the use of 

a firearm or other dangerous weapon, infliction of great

bodily injury, Penal Code §§12022, 12022.7–.8 (West 2000

and Supp. 2006)—to be charged in the indictment and 

proved to a jury beyond a reasonable doubt. 35 Cal. 4th, 

at 1257, 113 P. 3d, at 545.

 The Black court’s examination of the DSL, in short, 

satisfied it that California’s sentencing system does not 

implicate significantly the concerns underlying the Sixth

Amendment’s jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking

whether a defendant’s basic jury-trial right is preserved,

though some facts essential to punishment are reserved

for determination by the judge, we have said, is the very

inquiry Apprendi’s “bright-line rule” was designed to 

exclude. See Blakely, 542 U. S., at 307–308. But see 

Black, 35 Cal. 4th, at 1260, 113 P. 3d, at 547 (stating, 

remarkably, that “[t]he high court precedents do not draw

a bright line”).14

 Ultimately, the Black court relied on an equation of 

California’s DSL system to the post-Booker federal system. 

—————— 

14JUSTICE KENNEDY urges a distinction between facts concerning the 

offense, where Apprendi would apply, and facts concerning the offender, 

where it would not. Post, at 1–2 (dissenting opinion). Apprendi itself, 

however, leaves no room for the bifurcated approach JUSTICE KENNEDY 

proposes. See 530 U. S., at 490 (“[A]ny fact that increases the penalty 

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis 

added)). 
Cite as: 549 U. S. ____ (2007) 19 

Opinion of the Court 

“The level of discretion available to a California judge in

selecting which of the three available terms to impose,”

the court said, “appears comparable to the level of discretion that the high court has chosen to permit federal

judges in post-Booker sentencing.” 35 Cal. 4th, at 1261, 

113 P. 3d, at 548. The same equation drives JUSTICE 

ALITO’s dissent. See post, at 1 (“The California sentencing

law . . . is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the

Court approved in [Booker].”).

The attempted comparison is unavailing. As earlier 

explained, see supra, at 12–13, this Court in Booker held 

the Federal Sentencing Guidelines incompatible with the 

Sixth Amendment because the Guidelines were “mandatory and imposed binding requirements on all sentencing 

judges.” 543 U. S., at 233. “[M]erely advisory provisions,” 

recommending but not requiring “the selection of particular sentences in response to differing sets of facts,” all 

Members of the Court agreed, “would not implicate the 

Sixth Amendment.” Ibid. To remedy the constitutional

infirmity found in Booker, the Court’s majority excised

provisions that rendered the system mandatory, leaving 

the Guidelines in place as advisory only. Id., at 245–246. 

See also supra, at 13–14. 

California’s DSL does not resemble the advisory system

the Booker Court had in view. Under California’s system,

judges are not free to exercise their “discretion to select a 

specific sentence within a defined range.” Booker, 543 

U. S., at 233. California’s Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham’s sentencing judge had no

discretion to select a sentence within a range of 6 to 16 

years. Her instruction was to select 12 years, nothing less

and nothing more, unless she found facts allowing the

imposition of a sentence of 6 or 16 years. Factfinding to

elevate a sentence from 12 to 16 years, our decisions make 
20 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

plain, falls within the province of the jury employing a

beyond-a-reasonable-doubt standard, not the bailiwick of a 

judge determining where the preponderance of the evidence lies. 

 Nevertheless, the Black court attempted to rescue the

DSL’s judicial factfinding authority by typing it simply a

reasonableness constraint, equivalent to the constraint 

operative in the federal system post-Booker. See 35 Cal. 

4th, at 1261, 113 P. 3d, at 548 (“Because an aggravating 

factor under California law may include any factor that 

the judge reasonably deems relevant, the [DSL’s] requirement that an upper term sentence be imposed only if an

aggravating factor exists is comparable to Booker’s requirement that a federal judge’s sentencing decision not be 

unreasonable.”). Reasonableness, however, is not, as the 

Black court would have it, the touchstone of Sixth 

Amendment analysis. The reasonableness requirement 

Booker anticipated for the federal system operates within 

the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints. Because 

the DSL allocates to judges sole authority to find facts 

permitting the imposition of an upper term sentence, the 

system violates the Sixth Amendment. It is comforting, 

but beside the point, that California’s system requires

judge-determined DSL sentences to be reasonable. 

Booker’s remedy for the Federal Guidelines, in short, is 

not a recipe for rendering our Sixth Amendment case law

toothless.15 

—————— 

15 JUSTICE ALITO, however, would do just that. His opinion reads the 

remedial portion of the Court’s opinion in Booker to override Blakely, 

and to render academic the entire first part of Booker itself. Post, at 

13–15. There would have been no majority in Booker for the revision of 

Blakely essayed in his dissent. Grounded in a notion of how federal 

reasonableness review operates in practice, JUSTICE ALITO “necessarily

anticipates” a question that will be aired later this Term in Rita and 

Claiborne. See supra, at 14, n. 13. While we do not forecast the Court’s 
Cite as: 549 U. S. ____ (2007) 21 

Opinion of the Court 

To summarize: Contrary to the Black court’s holding,

our decisions from Apprendi to Booker point to the middle 

term specified in California’s statutes, not the upper term,

as the relevant statutory maximum. Because the DSL 

authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand

measurement against our Sixth Amendment precedent.16 

IV 

As to the adjustment of California’s sentencing system

in light of our decision, “[t]he ball . . . lies in [California’s] 

court.” Booker, 543 U. S., at 265; cf. supra, at 15. We note 

that several States have modified their systems in the 

wake of Apprendi and Blakely to retain determinate sentencing. They have done so by calling upon the jury—

either at trial or in a separate sentencing proceeding—to 

find any fact necessary to the imposition of an elevated 

sentence.17 As earlier noted, California already employs 

—————— 

responses in those cases, we affirm the continuing vitality of our prior 

decisions in point. 16Respondent and its amici argue that whatever this Court makes of 

California’s sentencing law, the Black court’s “construction” of that law 

as consistent with the Sixth Amendment is authoritative. Brief for 

Respondent 6, 18, 33; Brief for Hawaii et al. as Amici Curiae 17, 29. 

We disagree. The Black court did not modify California law so as to

align it with this Court’s Sixth Amendment precedent. See 35 Cal. 4th, 

at 1273, 113 P. 3d, at 555–556 (Kennard, J., concurring and dissenting).

Rather, it construed this Court’s decisions in an endeavor to render 

them consistent with California law. The Black court’s interpretation

of federal constitutional law plainly does not qualify for this Court’s 

deference. 17States that have so altered their systems are Alaska, Arizona, Kansas, Minnesota, North Carolina, Oregon, and Washington. Alaska Stat. 

§§12.55.155(f), 12.55.125(c) (2004); Ariz. Rev. Stat. Ann. §13–702.01

(West Supp. 2006); Kan. Stat. Ann. §§21–4716(b), 21–4718(b) (2005

Supp.); Minn. Stat. §244.10, subd. 5 (2005 Supp.); N.C. Gen. Stat. Ann.

§15A–1340.16(a1) (Lexis 2005); 2005 Ore. Sess. Laws, ch. 463, §§3(1),

4(1); Wash. Rev. Code §§9.94A.535, 9.94A.537 (2006). The Colorado 

Supreme Court has adopted this approach as an interim solution. 
22 CUNNINGHAM v. CALIFORNIA 

Opinion of the Court 

juries in this manner to determine statutory sentencing

enhancements. See supra, at 7, 18. Other States have 

chosen to permit judges genuinely “to exercise broad discretion . . . within a statutory range,”18 which, “everyone 

agrees,” encounters no Sixth Amendment shoal. Booker, 

543 U. S., at 233. California may follow the paths taken

by its sister States or otherwise alter its system, so long as

the State observes Sixth Amendment limitations declared 

in this Court’s decisions. 

* * * 

For the reasons stated, the judgment of the California 

Court of Appeal is reversed in part, and the case is remanded for further proceedings not inconsistent with this

opinion. 

It is so ordered. 

—————— 

Lopez v. People, 113 P. 3d 713, 716 (Colo. 2005) (en banc). See also 

Stemen & Wilhelm, Finding the Jury: State Legislative Responses to 

Blakely v. Washington, 18 Fed. Sentencing Rptr. 7 (Oct. 2005) (majority

of affected States have retained determinate sentencing systems). 18See Ind. Code Ann. §35–50–2–1.3(a) (West 2006); Tenn. Code Ann.

§40–35–210(c) (2005 Supp.). 
_________________ 

_________________ 

Cite as: 549 U. S. ____ (2007) 1 

KENNEDY, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 05–6551 

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007] 

JUSTICE KENNEDY, with whom JUSTICE BREYER joins,

dissenting. 

The dissenting opinion by JUSTICE ALITO, which I join in

full, well explains why the Court continues in a wrong and 

unfortunate direction in the cases following Apprendi v. 

New Jersey, 530 U. S. 466 (2000). See, e.g., United States 

v. Booker, 543 U. S. 220, 326–334 (2005) (BREYER, J., 

dissenting in part); Blakely v. Washington, 542 U. S. 296, 

314–324 (2004) (O’Connor, J., dissenting); id., at 326–328 

(KENNEDY, J., dissenting); see also Apprendi, supra, at 

523–554 (O’Connor, J., dissenting); Jones v. United States, 

526 U. S. 227, 264–272 (1999) (KENNEDY, J., dissenting).

The discussion in his dissenting opinion is fully sufficient 

to show why, in my respectful view, the Court’s analysis 

and holding are mistaken. It does seem appropriate to 

add this brief, further comment. 

In my view the Apprendi line of cases remains incorrect. 

Yet there may be a principled rationale permitting those

cases to control within the central sphere of their concern,

while reducing the collateral, widespread harm to the 

criminal justice system and the corrections process now

resulting from the Court’s wooden, unyielding insistence

on expanding the Apprendi doctrine far beyond its necessary boundaries. The Court could distinguish between

sentencing enhancements based on the nature of the

offense, where the Apprendi principle would apply, and 
2 CUNNINGHAM v. CALIFORNIA 

KENNEDY, J., dissenting 

sentencing enhancements based on the nature of the

offender, where it would not. California attempted to 

make this initial distinction. Compare Cal. Rule of Court 

4.421(a) (Criminal Cases) (West 2006) (listing aggravating

“[f]acts relating to the crime”), with Rule 4.421(b) (listing 

aggravating “[f]acts relating to the defendant”). The Court 

should not foreclose its efforts. 

California, as the Court notes, experimented earlier 

with an indeterminate sentencing system. Ante, at 3. The 

State reposed vast power and discretion in a nonjudicial 

agency to set a release date for convicted felons. That 

system, it seems, would have been untouched by Apprendi. 

When the State sought to reform its system, it might have

chosen to give its judges the authority to sentence to a 

maximum but to depart downward for unexplained reasons. That too, by considerable irony, would be untouched 

by Apprendi. Instead, California sought to use a system

based on guided discretion. Apprendi, the Court holds 

today, forecloses this option. 

As dissenting opinions have suggested before, the Constitution ought not to be interpreted to strike down all 

aspects of sentencing systems that grant judicial discretion with some legislative direction and control. Judges 

and legislators must have the capacity to develop consistent standards, standards that individual juries empaneled for only a short time cannot elaborate in any permanent way. See, e.g., Blakely, 542 U. S., at 314 (opinion of 

O’Connor, J.); id., at 326–327 (opinion of KENNEDY, J.)

(explaining that “[s]entencing guidelines are a prime 

example of [the] collaborative process” between courts and

legislatures). Judges and sentencing officials have a broad 

view and long-term commitment to correctional systems.

Juries do not. Judicial officers and corrections professionals, under the guidance and control of the legislature, 

should be encouraged to participate in an ongoing manner 

to improve the various sentencing schemes in our country. 
Cite as: 549 U. S. ____ (2007) 3 

KENNEDY, J., dissenting 

This system of guided discretion would be permitted to a

large extent if the Court confined the Apprendi rule to 

sentencing enhancements based on the nature of the

offense. These would include, for example, the fact that a 

weapon was used; violence was employed; a stated amount 

of drugs or other contraband was involved; or the crime

was motivated by the victim’s race, gender, or other status

protected by statute. Juries could consider these matters 

without serious disruption because these factors often are 

part of the statutory definition of an aggravated crime in

any event and because the evidence to support these 

enhancements is likely to be a central part of the prosecution’s case. 

On the other hand, judicial determination is appropriate

with regard to factors exhibited by the defendant. These 

would include, for example, prior convictions; cooperation

or noncooperation with law enforcement; remorse or the 

lack of it; or other aspects of the defendant’s history bearing upon his background and contribution to the community. This is so even if the relevant facts were to be found 

by the judge by a preponderance of the evidence. These 

are facts that should be taken into account at sentencing 

but have little if any significance for whether the defendant committed the crime. See Berman & Bibas, Making

Sentencing Sensible, 4 Ohio St. J. Crim. L. 37, 55–57 

(2006).

The line between offense and offender would not always

be clear, but in most instances the nature of the offense is 

defined in a manner that ensures the problem of categories would not be difficult. Apprendi suffers from a similar 

line-drawing problem between facts that must be considered by the jury and other considerations that a judge can 

take into account. The main part of the Apprendi holding

could be retained with far less systemic disruption. It is to 

be regretted that the Court’s decision today appears to 

foreclose consideration of this approach or other reason-
4 CUNNINGHAM v. CALIFORNIA 

KENNEDY, J., dissenting 

able efforts to develop systems of guided discretion within

the general constraint that Apprendi imposes. 
_________________ 

_________________ 

Cite as: 549 U. S. ____ (2007) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 05–6551 

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007] 

JUSTICE ALITO, with whom JUSTICE KENNEDY and 

JUSTICE BREYER join, dissenting. 

The California sentencing law that the Court strikes

down today is indistinguishable in any constitutionally 

significant respect from the advisory Guidelines scheme

that the Court approved in United States v. Booker, 543 

U. S. 220 (2005). Both sentencing schemes grant trial

judges considerable discretion in sentencing; both subject 

the exercise of that discretion to appellate review for 

“reasonableness”; and both—the California law explicitly, 

and the federal scheme implicitly—require a sentencing 

judge to find some factor to justify a sentence above the 

minimum that could be imposed based solely on the jury’s

verdict. Because this Court has held unequivocally that 

the post-Booker federal sentencing system satisfies the 

requirements of the Sixth Amendment, the same should 

be true with regard to the California system. I therefore 

respectfully dissent. 

I 

In Apprendi v. New Jersey, 530 U. S. 466 (2000), and the 

cases that have followed in its wake, the Court has held 

that under certain circumstances a criminal defendant 

possesses the Sixth Amendment right to have a jury find 

facts that result in an increased sentence. The Court, 

however, has never suggested that all factual findings that 
2 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

affect a defendant’s sentence must be made by a jury. On 

the contrary, in Apprendi and later cases, the Court has 

consistently stated that when a trial court makes a fully

discretionary sentencing decision (such as a sentencing 

decision under the pre-Sentencing Reform Act of 1984

federal sentencing system), the Sixth Amendment permits

the court to base the sentence on its own factual findings.

See id., at 481; Blakely v. Washington, 542 U. S. 296, 305 

(2004); Booker, supra, at 233; see also Harris v. United 

States, 536 U. S. 545, 558 (2002).1 

Applying this rule, the Booker Court unanimously

agreed that judicial factfinding under a purely advisory 

guidelines system would likewise comport with the Sixth

Amendment. Writing for the five Justices who struck

down the mandatory Federal Sentencing Guidelines system, JUSTICE STEVENS stated: 

“If the Guidelines as currently written could be read

as merely advisory provisions that recommended, 

rather than required, the selection of particular sen-

—————— 

1The Court’s recognition of this is hardly surprising since, as Judge 

McConnell has pointed out, “fully discretionary sentencing . . . was the 

system [that was] in place when the Sixth Amendment was adopted” 

and that “prevailed in the federal courts from the Founding until 

enactment of the Sentencing Reform Act of 1984 . . . without anyone

ever suggesting a conflict with the Sixth Amendment.” McConnell, The 

Booker Mess, 83 Denver U. L. Rev. 665, 679 (2006). Indeed, the original federal criminal statute enacted by the First Congress set forth

indeterminate sentencing ranges for a variety of offenses, leaving the

determination of the precise sentence to the judge’s discretion. See, 

e.g., Act of Apr. 30, 1790, ch. 9, §2, 1 Stat. 112 (crime of misprision of

treason punishable by imprisonment not exceeding seven years and 

fine not exceeding $1,000); §6, id., at 113 (crime of misprision of a

felony punishable by imprisonment not exceeding three years and fine

not exceeding $500); §15, id., at 115–116 (crime of falsifying federal

records punishable by imprisonment not exceeding seven years, fine not

exceeding $5,000, and whipping not exceeding 39 stripes); see generally

Little & Chen, The Lost History of Apprendi and the Blakely Petition 

for Rehearing, 17 Fed. Sentencing Rep. 69 (2004). 
Cite as: 549 U. S. ____ (2007) 3 

ALITO, J., dissenting 

tences in response to differing sets of facts, their use 

would not implicate the Sixth Amendment. We have 

never doubted the authority of a judge to exercise 

broad discretion in imposing a sentence within a 

statutory range. . . . For when a trial judge exercises 

his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker, supra, at 233.2 

In a similar vein, the remedial portion of the Court’s

opinion in Booker, written by JUSTICE BREYER, held that 

the Sixth Amendment permits a system of advisory guidelines with reasonableness review.3 JUSTICE BREYER’s 

opinion avoided a blanket invalidation of the Guidelines

by excising the provision of the Sentencing Reform Act, 18

U. S. C. §3553(b)(1) (2000 ed., Supp. IV), that required a 

sentencing judge to impose a sentence within the applicable Guidelines range. See Booker, 543 U. S., at 259. As 

JUSTICE BREYER explained, “the existence of §3553(b)(1) is

a necessary condition of the constitutional violation. That 

is to say, without this provision . . . the statute falls outside the scope of Apprendi’s requirement.” Ibid. 

Under the post-Booker federal sentencing system, “[t]he 

—————— 

2The four Justices who would have upheld the constitutionality of the 

mandatory Federal Sentencing Guidelines system did not, of course,

disagree with this basic point. Indeed, they were of the view that

“[h]istory does not support a ‘right to jury trial’ in respect to sentencing

facts.” Booker, 543 U. S., at 328 (BREYER, J., dissenting in part). 3While the dissenters from the remedial portion of the Court’s opinion disagreed with JUSTICE BREYER’s severablity analysis, they did not

suggest that the resulting “advisory Guidelines” structure was unconstitutional. Rather, they recognized—as JUSTICE STEVENS explained in

his portion of the Court’s opinion—that “[i]f the Guidelines as currently

written could be read as merely advisory provisions that recommended, 

rather than required, the selection of particular sentences in response

to differing sets of facts, their use would not implicate the Sixth 

Amendment.” Id., at 233. 
4 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

district courts, while not bound to apply the Guidelines, 

must consult those Guidelines and take them into account 

when sentencing.” Id., at 264. In addition, sentencing

courts must take account of the general sentencing goals 

set forth by Congress, including avoiding unwarranted

sentencing disparities, providing restitution to victims, 

reflecting the seriousness of the offense, promoting respect 

for the law, providing just punishment, affording adequate

deterrence, protecting the public, and effectively providing

the defendant with needed educational or vocational training and medical care. See id., at 260 (citing 18 U. S. C. 

§3553(a) (2000 ed. and Supp. IV)). 

It is significant that Booker, while rendering the Guidelines advisory, did not reinstitute the pre-Guidelines

federal sentencing system, under which “well-established 

doctrine bar[red] review of the exercise of sentencing

discretion” within the broad sentencing ranges imposed by

the criminal statutes. Dorszynski v. United States, 418 

U. S. 424, 443 (1974). Rather, Booker conditioned a district court’s sentencing discretion on appellate review for 

“reasonableness” in light of the Guidelines and the

§3553(a) factors. See Booker, supra, at 261 (“Section

3553(a) remains in effect, and sets forth numerous factors

that guide sentencing. Those factors in turn will guide

appellate courts, as they have in the past, in determining

whether a sentence is unreasonable”). 

 Although the Booker Court did not spell out in detail

how sentencing judges are to proceed under the new advisory Guidelines regime, it seems clear that this regime

permits—and, indeed, requires—sentencing judges to 

make factual findings and to base their sentences on those 

findings. The federal criminal statutes generally set out 

wide sentencing ranges, and thus in each case a sentencing judge must use some criteria in selecting the sentence 

to be imposed. In doing this, federal judges have generally 

made and relied upon factual determinations about the 
Cite as: 549 U. S. ____ (2007) 5 

ALITO, J., dissenting 

nature of the offense and the offender—and it is impossible to imagine how federal judges could reasonably carry 

out their sentencing responsibilities without making such 

factual determinations. 

Under the mandatory Federal Sentencing Guidelines

regime, these factual determinations were relatively formal and precise. (For example, a trial judge under that

regime might have found based on a post-trial proceeding

that a drug offense involved six kilograms of cocaine or 

that the loss caused by a mail fraud offense was $2.5

million.) By contrast, under the pre-Sentencing Reform

Act federal system, the factual determinations were often 

relatively informal and imprecise. (A trial judge might 

have concluded from the presentence report that an offense involved “a large quantity of drugs” or that a mail 

fraud scheme caused “a great loss.”) Under both systems, 

however, the judges made factual determinations about 

the nature of the offense and the offender and determined 

the sentence accordingly. And as the Courts of Appeals

have unanimously concluded, the post-Booker federal 

sentencing regime also permits trial judges to make such

factual findings and to rely on those findings in selecting 

the sentences that are appropriate in particular cases.4

 Under the post-Booker system, if a defendant believes 

—————— 

4Every Court of Appeals to address the issue has held that a district

court sentencing post-Booker may rely on facts found by the judge by a 

preponderance of the evidence. See United States v. Kilby, 443 F. 3d 

1135, 1141 (CA9 2006); United States v. Cooper, 437 F. 3d 324, 330 

(CA3 2006); United States v. Vaughn, 430 F. 3d 518, 525–526 (CA2 

2005); United States v. Morris, 429 F. 3d 65, 72 (CA4 2005); United 

States v. Price, 418 F. 3d 771, 788 (CA7 2005); United States v. Magallanez, 408 F. 3d 672, 684–685 (CA10 2005); United States v. Pirani, 406 

F. 3d 543, 551, n. 4 (CA8 2005) (en banc); United States v. Yagar, 404 

F. 3d 967, 972 (CA6 2005); United States v. Mares, 402 F. 3d 511, 519, 

and n. 6 (CA5 2005); United States v. Duncan, 400 F. 3d 1297, 1304– 

1305 (CA11 2005); United States v. Antonakopoulos, 399 F. 3d 68, 74 

(CA1 2005). 
6 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

that his or her sentence was based on an erroneous factual 

determination, it seems clear that the defendant may

challenge that finding on appeal. As noted, the postBooker system permits a defendant to obtain appellate

review of the reasonableness of a sentence, and a sentence 

that the sentencing court justifies solely on the basis of an 

erroneous finding of fact can hardly be regarded as reasonable. Thus, under the post-Booker system, there will 

be cases—and, in all likelihood, a good many cases—in 

which the question whether a defendant will be required

to serve a greater or lesser sentence depends on whether a 

court of appeals sustains a finding of fact made by the 

sentencing judge.

A simple example illustrates this point. Suppose that a

defendant is found guilty of 10 counts of mail fraud in that 

the defendant made 10 mailings in furtherance of a

scheme to defraud. See 18 U. S. C. §1341 (2000 ed., Supp. 

IV). Under the mail fraud statute, the district court would 

have discretion to sentence the defendant to any sentence 

ranging from probation up to 200 years of imprisonment (20

years on each count). Suppose that the sentencing judge 

imposes the maximum sentence allowed by statute—200 

years of imprisonment—without identifying a single fact

about the offense or the offender as a justification for this

lengthy sentence. Surely that would be an unreasonable 

sentence that could not be sustained on appeal.

Suppose, alternatively, that the sentencing court finds

that the mail fraud scheme caused a loss of $1 million and 

that the victims were elderly people of limited means, and 

suppose that the court, based on these findings, imposes a 

sentence of 10 years of imprisonment. If the defendant 

challenges the sentence on appeal on the ground that 

these findings are erroneous, the question whether the

defendant will be required to serve 10 years or some lesser 

sentence may well depend on the validity of the district

court’s findings of fact. 
Cite as: 549 U. S. ____ (2007) 7 

ALITO, J., dissenting 

Booker, then, approved a sentencing system that (1) 

requires a sentencing judge to “consult” and “take into

account” legislatively defined sentencing factors and 

guidelines; (2) subjects a sentencing judge’s exercise of 

sentencing discretion to appellate review for “reasonableness”; and (3) requires sentencing judges to make factual

findings in order to support the exercise of this discretion. 

II 

The California sentencing law that the Court strikes

down today is not meaningfully different from the federal 

scheme upheld in Booker. 

As an initial matter, the California law gives a judge at

least as much sentencing discretion as does the postBooker federal scheme. California’s system of sentencing

triads and separate “enhancements”5 was enacted to 

achieve sentences “in proportion to the seriousness of the

offense as determined by the Legislature to be imposed by 

the court with specified discretion.” Cal. Penal Code Ann. 

§1170(a)(1) (West Supp. 2006). This “specified discretion” 

is quite broad. Under the statute, a sentencing court 

“shall order imposition of the middle term” of the baseterm triad, “unless there are circumstances in aggravation 

or mitigation of the crime.” §1170(b). While the court may 

not rely on any fact that is an essential element of the

crime or of a proven enhancement, the “sentencing judge 

retains considerable discretion to identify aggravating

factors.” People v. Black, 35 Cal. 4th 1238, 1247, 113 P. 3d 

534, 538 (2005).

In exercising its sentencing discretion, a California court

can look to any of the 16 specific aggravating circumstances, see Cal. Rule of Court (Criminal Cases) 4.421

(West 2006), or 15 specific mitigating circumstances, see 

—————— 

5These enhancements, which add additional years onto the base-triad

term selected by the court, see ante, at 7–8, must be pleaded and proved

to a jury beyond a reasonable doubt. They are not at issue in this case. 
8 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

Rule 4.423, itemized in the California Rules of Court. A 

California trial court can also consider the “[g]eneral 

objectives of sentencing,” including protecting society, 

punishing the defendant, encouraging the defendant to

lead a law-abiding life and deterring the defendant from

committing future offenses, deterring others from criminal 

conduct by demonstrating its consequences, preventing

the defendant from committing new crimes by means of 

incarceration, securing restitution for crime victims, and 

achieving uniformity in sentencing.6 Rule 4.410(a). And if 

a California trial court finds that its sentencing authority

is unduly restricted by these factors, which the California

Supreme Court has recognized “are largely the articulation of considerations sentencing judges have always used 

in making these decisions,” People v. Hernandez, 46 Cal. 

3d 194, 205, 757 P. 2d 1013, 1019, (1988) (in bank), overruled on other grounds, People v. King, 5 Cal. 4th 59, 78, 

n. 5, 851 P. 2d 27, 39, n. 5 (1993) (in banc), a California 

sentencing judge is also authorized to consider any “additional criteria reasonably related to the decision being

made.” Rule 4.408(a); see also Black, supra, at 1256, 113 

P. 3d, at 544 (“The Legislature did not identify all of the 

particular facts that could justify the upper term”).7 

—————— 

6These factors are similar to the federal sentencing policies set forth

in 18 U. S. C. §3553(a) (2000 ed. and Supp. IV), which directs a court to 

consider, among other things, the need to promote respect for the law, 

to provide just punishment for the offense, to afford adequate deterrence to criminal conduct and to protect the public. 7As the California Supreme Court explained in Black, 

“In adopting the sentencing rules, the Judicial Council considered 

and rejected proposals that the rules provide an exclusive list of sentencing criteria and that the criteria be assigned specific weights, on 

the ground that the Legislature intended to give the sentencing judge 

discretion in selecting among the lower, middle, and upper terms. The 

report on which the Judicial Council acted in adopting the rules explains that ‘an exclusive listing would be inconsistent with the statutory mandate to adopt “rules providing criteria for the consideration of 
Cite as: 549 U. S. ____ (2007) 9 

ALITO, J., dissenting 

In short, under California law, the “‘circumstances’ the 

sentencing judge may look to in aggravation or in mitigation of the crime include . . . ‘practically everything which 

has a legitimate bearing’ on the matter in issue.” People v. 

Guevara, 88 Cal. App. 3d 86, 93, 151 Cal. Rptr. 511, 516

(1979); see also Rule 4.410(b) (“The sentencing judge

should be guided by statutory statements of policy, the 

criteria in these rules, and the facts and circumstances of 

the case”). Indeed, as one California court has explained, 

sentencing discretion may even be guided by a “judge’s 

subjective determination of . . . the appropriate aggregate

sentence” based on his “experiences with prior cases and

the record in the defendant’s case.” People v. Stevens, 205 

Cal. App. 3d 1452, 1457, 253 Cal. Rptr. 173, 177 (1988). 

“A judge’s subjective belief regarding the length of the

sentence to be imposed is not improper as long as it is

channeled by the guided discretion outlined in the myriad 

of statutory sentencing criteria.” Ibid. 

The California scheme—like the federal “advisory

Guidelines”—does require that this discretion be exercised 

reasonably. Indeed, the California Supreme Court, authoritatively construing the California statute,8 has ex-

—————— 

the trial judge” [§1170.3] since this language does not purport to limit

the discretion afforded the court in each of the five enumerated sentencing decisions, but calls for criteria which will assist the courts in 

the exercise of that discretion.’ (Judicial Council of Cal., Advisory Com.

Rep., Sentencing Rules and Sentencing Reporting System (1977) p. 6.) 

‘Any attempt to impose a weighting system on trial courts . . . would be

an infringement on the sentencing power of the court.’ (Id., p. 8.) ‘The

substantive law, and section 1170(a)(1), give discretion to the trial

court; the rules can guide, but cannot compel, the exercise of that

discretion. ’ (Id., p. 11.)” 35 Cal. 4th, at 1256, n. 11, 113 P. 3d, at 544, 

n. 11. 

8The Court correctly notes that we need not defer to the California 

Supreme Court’s construction of federal law, including its judgment as

to whether California law is consistent with our Sixth Amendment 

jurisprudence. See ante, at 21, n. 16. But the California Supreme

Court’s exposition of California law is authoritative and binding on this 
10 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

plained that §1170(b)’s “requirement that an aggravating 

factor exist is merely a requirement that the decision to

impose the upper term be reasonable.” Black, 35 Cal. 4th, 

at 1255, 113 P. 3d, at 544 (emphasis in original); see also 

id., at 1257–1258, 113 P. 3d, at 545 (“The jury’s verdict of 

guilty on an offense authorizes the judge to sentence a 

defendant to any of the three terms specified by statute as

the potential punishments for that offense, as long as the 

judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules”). Even when a 

court imposes the “presumptive” middle term, its decision 

is reviewable for abuse of discretion—that is, its decision 

to sentence at the “standard” term must be reasonable. 

See People v. Cattaneo, 217 Cal. App. 3d 1577, 1587–1588, 

266 Cal. Rptr. 710, 716 (1990).

Moreover, the California system, like the post-Booker 

federal regime, recognizes that a sentencing judge must

have the ability to look at all the relevant facts—even 

those outside the trial record and jury verdict—in exercising his or her discretion. “The judicial factfinding that

occurs during that selection process is the same type of

judicial factfinding that traditionally has been a part of 

the sentencing process.” Black, supra, at 1258, 113 P. 3d, 

at 545. 

III 

Despite these similarities between the California system 

and the “advisory Guidelines” scheme approved in Booker, 

—————— 

Court. See, e.g., Mullaney v. Wilbur, 421 U. S. 684, 691 (1975) (“[S]tate

courts are the ultimate expositors of state law [and] we are bound by

their constructions except in extreme circumstances”); Wainwright v. 

Goode, 464 U. S. 78, 84 (1983) (per curiam) (“[T]he views of the State’s 

highest court with respect to state law are binding on the federal

courts”); Ring v. Arizona, 536 U. S. 584, 603 (2002) (recognizing the

Arizona Supreme Court’s construction of Arizona sentencing law as

authoritative). 
Cite as: 549 U. S. ____ (2007) 11 

ALITO, J., dissenting 

the Court nevertheless holds that the California regime

runs afoul of the Sixth Amendment. The Court reasons as 

follows: (1) California requires that some aggravating fact, 

apart from the elements of the offense found by the jury, 

must support an upper term sentence; (2) Blakely defined 

the “statutory maximum” to be “the maximum sentence a

judge may impose solely on the basis of the facts reflected 

in the jury verdict or admitted by the defendant,” 542 U. S., 

at 303 (emphasis in original); and therefore (3) the California regime violates “Apprendi’s bright-line rule,” id., at 

308, that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

Apprendi, 530 U. S., at 490. 

This argument is flawed. For one thing, it is not at all

clear that a California court must find some case-specific,

adjudicative “fact” (as opposed to identifying a relevant

policy consideration) before imposing an upper term sentence. What a California sentencing court must find is a 

“circumstanc[e] in aggravation,” Cal. Penal Code Ann. 

§1170(b) (emphasis added), which, California’s Court

Rules make clear, can include any “criteria reasonably 

related to the decision being made.” Rule 4.408(a).

California courts are thus empowered to take into account the full panoply of factual and policy considerations

that have traditionally been considered by judges operating under fully discretionary sentencing regimes—the 

constitutionality of which the Court has repeatedly reaffirmed. California law explicitly authorizes a sentencing 

court to take into account, for example, broad sentencing 

objectives like punishment, deterrence, restitution, and

uniformity, see Rule 4.410, and even a judge’s “subjective

belief” as to the appropriateness of the sentence, see Stevens, supra, at 1457, 253 Cal. Rptr., at 177, as long as the 
12 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

final result is reasonable.9 Policy considerations like these

have always been outside the province of the jury and do

not implicate the Sixth Amendment concerns expressed in 

Apprendi. 

In short, the requirement that a California court find

some “circumstanc[e] in aggravation” before imposing an

upper term sentence is not the same as a requirement that

it find an aggravating fact. And if a California sentencing 

court need not find a fact beyond those “reflected in the

jury verdict or admitted by the defendant,” Blakely, supra, 

at 303 (emphasis deleted), then Apprendi’s “bright-line

rule” plainly does not apply.10 

But even if the California law did require that a sen-

—————— 

9The State of California acknowledged in its brief that “[t]he court

can rely on essentially any reason placing the defendant’s particular

offense outside the mean when selecting” which term of the triad to

impose. Brief for Respondent 32. As California’s counsel acknowledged 

at oral argument, a concern for deterrence in light of an uptick in crime 

in a particular community, for example, could be a “circumstance in 

aggravation” supporting imposition of an upper term sentence under 

California law, even though that concern is not based on judge-found, 

case-specific facts. See Tr. of Oral Arg. 32–40. 10 It is true that California’s Court Rules also itemize more concrete 

aggravating circumstances that they label “[f]acts relating to the crime” 

and “[f]acts relating to the defendant.” See Cal. Rules of Court (Criminal Cases) 4.421 and 4.423 (West 2006). But these lists are not exhaustive, and they do not impair a court’s ability to take into account more

general sentencing objectives in deciding whether to sentence a defendant to the upper term. The Rules’ provision that “[c]ircumstances in

aggravation and mitigation shall be established by a preponderance of

the evidence,” Rule 4.420(b), is clearly meant to cover the types of

crime- and defendant-specific adjudicative facts set forth in the Rules 

immediately following; there is nothing to suggest that this provision

excludes consideration of more general sentencing objectives that are 

not conducive to such trial-type proof. As the Rules explicitly recognize, 

these different categories of sentencing considerations are not mutually

exclusive. See Rule 4.410(b) (“The sentencing judge should be guided 

by statutory statements of policy, the criteria in these rules, and the

facts and circumstances of the case”). 
Cite as: 549 U. S. ____ (2007) 13 

ALITO, J., dissenting 

tencing court find some aggravating “fact” before imposing

an upper term sentence, that would not make this case

constitutionally distinguishable from Booker. As previously explained, the “advisory Guidelines,” bounded by

reasonableness review, effectively (albeit less explicitly) 

impose the same requirement on federal judges. Booker’s 

reasonableness review necessarily supposes that some

sentences will be unreasonable in the absence of additional facts justifying them. (Recall the prior hypothetical

case in which it was posited that the district court imposed 

a sentence of 200 years of imprisonment for mail fraud 

without citing a single aggravating fact about the offense 

or the offender.) Thus, although the post-Booker Guidelines are labeled “advisory,” reasonableness review imposes a very real constraint on a judge’s ability to sentence

across the full statutory range without finding some aggravating fact.11 

The Court downplays the significance of Booker reasonableness review on the ground that Booker-style “reasonableness . . . operates within the Sixth Amendment con-

—————— 

11The Court believes that in order to reach this conclusion, I must 

“previe[w] . . . how ‘reasonableness review,’ post-Booker, works,” ante, 

at 15, n. 13, and perhaps even prejudge this Court’s forthcoming

decisions in Rita and Claiborne, ante, at 20, n. 15. But my point is 

much more modest. We need not map all the murky contours of the 

post-Booker landscape in order to conclude that reasonableness review 

must mean something. If reasonableness review is more than just an

empty exercise, there inevitably will be some sentences that, absent any

judge-found aggravating fact, will be unreasonable. One need not 

embrace any presumption of reasonableness or unreasonableness to

accept this simple point. If this is the case—and I cannot see how it is 

not, given the Court’s endorsement of reasonableness review in 

Booker—then there is no meaningful Sixth Amendment difference 

between California’s sentencing system and the post-Booker "advisory

Guidelines." Under both, a sentencing judge operating under a reasonableness constraint must find facts beyond the jury’s verdict in order to 

justify the imposition of at least some sentences at the high end of the 

statutory range. 
14 CUNNINGHAM v. CALIFORNIA 

ALITO, J., dissenting 

straints delineated in our precedent, not as a substitute

for those constraints.” Ante, at 20 (emphasis in original). 

But this begs the question, which concerns the scope of 

those “Sixth Amendment constraints.” That question is 

answered by the Court’s remedial holding in Booker, 

which necessarily stands for the proposition that it is 

consistent with the Sixth Amendment for the imposition of 

an enhanced sentence to be conditioned on a factual finding made by a sentencing judge and not by a jury. 

The Court relies heavily on Blakely’s admonition that 

“the ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis 

of the facts reflected in the jury verdict or admitted by the 

defendant.” 542 U. S., at 303 (emphasis in original). But 

the Court fails to recognize how this statement must be

understood in the wake of Booker. 

For each statutory offense, there must be a sentence

that represents the least onerous sentence that can be 

regarded as reasonable in light of the bare statutory elements found by the jury. To return to our prior example of 

a mail fraud offense, there must be some sentence that 

represents the least onerous sentence that would be appropriate in a case in which the statutory elements of mail

fraud are satisfied but in which the offense and the offender are as little deserving of punishment as can be 

imagined. (Whether this sentence is the statutory minimum (probation, see 18 U. S. C. §1341 (2000 ed., Supp. 

IV)) or the minimum under the advisory Guidelines (also 

probation, see United States Sentencing Commission,

Guidelines Manual §2B1.1 and Sentencing Table (Nov. 

2006)) is irrelevant for present purposes; what is relevant 

is that there must be some minimum reasonable sentence.) 

This sentence is “the maximum sentence” that could reasonably be imposed “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 

Blakely, supra, at 303 (emphasis deleted). 
Cite as: 549 U. S. ____ (2007) 15 

ALITO, J., dissenting 

Booker’s reasonableness review necessarily anticipates

that the imposition of sentences above this level may be 

conditioned upon findings of fact made by a judge and not 

by the jury. Booker held that a system of “advisory Guidelines” with reasonableness review is consistent with the 

Sixth Amendment, and the same analysis should govern

California’s “requirement that the decision to impose the 

upper term be reasonable.” Black, 35 Cal. 4th, at 1255, 113 

P. 3d, at 544 (emphasis in original). That the California 

requirement is explicit, while the federal aggravating 

factor requirement is (at least for now) implicit, should not 

be constitutionally dispositive.

Unless the Court is prepared to overrule the remedial 

decision in Booker, the California sentencing scheme at 

issue in this case should be held to be consistent with the 

Sixth Amendment. I would therefore affirm the decision 

of the California Court of Appeal.