564
Breyer, J., dissenting
where a legislature requires a judge to impose a higher penalty than he otherwise would (within a pre-existing statutory range) based on similar criteria, it is not. Cf. AlmendarezTorres, 523 U. S., at 246.
IV
I certainly do not believe that the present sentencing system is one of "perfect equity," ante, at 498 (Scalia, J., concurring), and I am willing, consequently, to assume that the majority's rule would provide a degree of increased procedural protection in respect to those particular sentencing factors currently embodied in statutes. I nonetheless believe that any such increased protection provides little practical help and comes at too high a price. For one thing, by leaving mandatory minimum sentences untouched, the majority's rule simply encourages any legislature interested in asserting control over the sentencing process to do so by creating those minimums. That result would mean significantly less procedural fairness, not more.
For another thing, this Court's case law, prior to Jones v. United States, 526 U. S. 227, 243, n. 6 (1999), led legislatures to believe that they were permitted to increase a statutory maximum sentence on the basis of a sentencing factor. See ante, at 529-539 (O'Connor, J., dissenting); see also, e. g., McMillan, supra, at 84-91 (indicating that a legislature could impose mandatory sentences on the basis of sentencing factors, thereby suggesting it could impose more flexible statutory maximums on same basis). And legislatures may well have relied upon that belief. See, e. g., 21 U. S. C. § 841(b) (1994 ed. and Supp. III) (providing penalties for, among other things, possessing a "controlled substance" with intent to distribute it, which sentences vary dramatically depending upon the amount of the drug possessed, without requiring jury determination of the amount); N. J. Stat. Ann. §§ 2C:43-6, 2C:43-7, 2C:44-1a-f, 2C:44-3 (West 1995 and Supp. 1999-2000) (setting sentencing ranges for crimes, while providing for lesser or greater punishments
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