Cite as: 536 U. S. 545 (2002)
to be given to one traditional sentencing factor. McMillan, supra, at 89-90. Pp. 568-569.
Justice Kennedy, joined by The Chief Justice, Justice O'Connor, and Justice Scalia, concluded in Part III that § 924(c)(1)(A)(ii) is constitutional under McMillan, which remains sound authority after Apprendi. The Court will not overrule a precedent absent a special justification. The justification offered by petitioner is that Apprendi and McMillan cannot be reconciled. Those decisions are consistent, however, because there is a fundamental distinction between the factual findings at issue in those two cases. 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 by the Framers of the Bill of Rights. That cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury's verdict has authorized the judge to impose the minimum with or without the finding. This sort of fact is more like the facts judges have traditionally considered when exercising their discretion to choose a sentence within the range authorized by the jury's verdict—facts that the Constitution does not require to be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury's verdict, however, the political system may channel judicial discretion—and rely upon judicial expertise—by requiring defendants to serve minimum terms after judges make certain factual findings. Legislatures have relied upon McMillan's holding, and there is no reason to overturn these statutes or cast uncertainty upon sentences imposed under them. Pp. 556-568.
Justice Breyer concluded that although Apprendi v. New Jersey, 530 U. S. 466, cannot easily be distinguished from this case in terms of logic, the Sixth Amendment permits judges to apply sentencing factors—whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here). This does not mean to suggest approval of mandatory minimum sentences as a matter of policy. Mandatory minimum statutes are fundamentally inconsistent with Congress' simultaneous effort to create a fair, honest, and rational sentencing system through the use of the Sentencing Guidelines. They transfer sentencing power to prosecutors, who can determine sentences through the charges they decide to bring, and who thereby have reintroduced much of the sentencing disparity
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