166
Stevens, J., dissenting
5-to-4 decision in McMillan v. Pennsylvania, 477 U. S. 79 (1986). For the reasons stated in my dissent in that case, id., at 95-104, I continue to believe that it was incorrectly decided and that its holding should be reconsidered. Even accepting its holding that the Constitution does not require proof beyond a reasonable doubt to establish a sentencing factor that increases the minimum sentence without altering the maximum, however, there are at least two reasons why McMillan does not dictate the outcome of these cases.
In McMillan, as in these cases, the defendant's minimum sentence was enhanced on the basis of a fact proved by a preponderance of the evidence. But in McMillan, the maximum was unchanged; the sentence actually imposed was within the range that would have been available to the judge even if the enhancing factor had not been proved. In these cases, however, the sentences actually imposed were higher than the Guidelines would have allowed without evidence of the additional offenses. The McMillan opinion pointedly noted that the Pennsylvania statute had not altered "the maximum penalty for the crime committed" and operated "solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm." Id., at 87-88. Given the Court's acknowledged "inability to lay down any 'bright line' test" that would define the limits of its holding, id., at 91, and its apparent assumption that a sentencing factor should not be allowed to serve as a "tail which wags the dog of the substantive offense," id., at 88, see also ante, at 156-157, n. 2, the holding should not be extended to allow a fact proved by only a preponderance to increase the entire range of penalties within which the sentencing judge may lawfully exercise discretion.4
4 I recognize that the shift from one Guideline range to a higher range does not produce a sentence beyond the statutory maximum. It does, however, mandate a sentence that is above the maximum that the judge
Page: Index Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: October 4, 2007