Harris v. United States, 536 U.S. 545, 15 (2002)

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Cite as: 536 U. S. 545 (2002)

Opinion of Kennedy, J.

kind addressed in McMillan, was mandatory minimum sentencing. The Pennsylvania Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. 9712 (1982), imposed a minimum prison term of five years when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm while committing the crime of conviction.

In sustaining the statute the McMillan Court placed considerable reliance on the similarity between the sentencing factor at issue and the facts judges contemplate when exercising their discretion within the statutory range. Given that the latter are not elements of the crime, the Court explained, neither was the former:

"Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates 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. Section 9712 'ups the ante' for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan. . . . Petitioners' claim that visible possession under the Pennsylvania statute is 'really' an element of the offenses for which they are being punished . . . would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, . . . but it does not." 477 U. S., at 87-88 (footnote omitted).

In response to the argument that the Act evaded the Constitution's procedural guarantees, the Court noted that the statute "simply took one factor that has always been considered by sentencing courts to bear on punishment . . . and dictated the precise weight to be given that factor." Id., at 89-90.

559

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