Harris v. United States, 536 U.S. 545, 21 (2002)

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

Opinion of Kennedy, J.

10 years, the maximum "authorized by the jury's guilty verdict." Apprendi, 530 U. S., at 494. "[T]hose facts that determine the maximum sentence the law allows," then, are necessarily elements of the crime. Id., at 499 (Scalia, J., concurring).

Yet once the jury finds all those facts, Apprendi says that the defendant has been convicted of the crime; the Fifth and Sixth Amendments have been observed; and the Government has been authorized to impose any sentence below the maximum. That is why, as Apprendi noted, "nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range." Id., at 481. That is also why, as McMillan noted, nothing in this history suggests that it is impermissible for judges to find facts that give rise to a mandatory minimum sentence below "the maximum penalty for the crime committed." 477 U. S., at 87-88. In both instances the judicial factfinding does not "expose a defendant to a punishment greater than that otherwise legally prescribed." Apprendi, supra, at 483, n. 10. Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. When a judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries—and without contradicting Apprendi.

Petitioner argues, however, that the concerns underlying Apprendi apply with equal or more force to facts increasing the defendant's minimum sentence. Those factual findings, he contends, often have a greater impact on the defendant


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