Harris v. United States, 536 U.S. 545, 4 (2002)

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that Congress created the Guidelines to eliminate. Applying Apprendi in this case would not, however, lead Congress to abolish, or to modify, such statutes; and it would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors. The legal consequences of extending Apprendi are also seriously adverse, for doing so would diminish further Congress' otherwise broad constitutional authority to define crimes through the specification of elements, to shape criminal sentences through the specification of sentencing factors, and to limit judicial discretion in applying those factors in particular cases. Pp. 569-572.

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and O'Connor, Scalia, and Breyer, JJ., joined, and an opinion with respect to Part III, in which Rehnquist, C. J., and O'Connor and Scalia, JJ., joined. O'Connor, J., filed a concurring opinion, post, p. 569. Breyer, J., filed an opinion concurring in part and concurring in the judgment, post, p. 569. Thomas, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 572.

William C. Ingram, by appointment of the Court, 534 U. S. 1160, argued the cause for petitioner. With him on the briefs were Louis C. Allen III, Elizabeth A. Flagg, and Jeffrey T. Green.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Matthew D. Roberts, and Nina Goodman.*

*Briefs of amici curiae urging reversal were filed for the Cato Institute et al. by Stephen P. Halbrook; and for Families Against Mandatory Minimums Foundation by Peter Goldberger and Mary Price.

Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by David Samson, Attorney General of New Jersey, and Lisa Sarnoff Gochman, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa

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