Harris v. United States, 536 U.S. 545, 18 (2002)

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Opinion of Kennedy, J.

above what the law has provided for the acts charged against the prisoner, and they are interposed merely to check the judicial discretion in the exercise of the permitted mercy. This is an entirely different thing from punishing one for what is not alleged against him." Bishop, Criminal Procedure 85, at 54.

Since sentencing ranges came into use, defendants have not been able to predict from the face of the indictment precisely what their sentence will be; the charged facts have simply made them aware of the "heaviest punishment" they face if convicted. Ibid. Judges, in turn, have always considered uncharged "aggravating circumstances" that, while increasing the defendant's punishment, have not "swell[ed] the penalty above what the law has provided for the acts charged." Ibid. Because facts supporting a mandatory minimum fit squarely within that description, the legislature's choice to entrust them to the judge does not implicate the "com-petition . . . between judge and jury over . . . their respective roles," Jones, 526 U. S., at 245, that is the central concern of the Fifth and Sixth Amendments.

At issue in Apprendi, by contrast, was a sentencing factor that did "swell the penalty above what the law has provided," Bishop, supra, 85, at 54, and thus functioned more like a "traditional elemen[t]." Patterson v. New York, 432 U. S., at 211, n. 12. The defendant had been convicted of illegal possession of a firearm, an offense for which New Jersey law prescribed a maximum of 10 years in prison. See N. J. Stat. Ann. 2C:39-4(a), 2C:43-6(a)(2) (1995). He was sentenced to 12 years, however, because a separate statute permitted an enhancement when the judge found, by a preponderance of the evidence, that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race." 2C:44-3(e) (Supp. 2001-2002).

The Court held that the enhancement was unconstitutional. "[O]ur cases in this area, and . . . the history upon which they rely," the Court observed, confirmed the constitu-

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