Cite as: 536 U. S. 545 (2002)
Opinion of Breyer, J.
Constitution permits the judge to do so, and we leave the other questions to Congress, the States, and the democratic processes.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice O'Connor, concurring.
Petitioner bases his statutory argument that brandishing must be interpreted as an offense element on Jones v. United States, 526 U. S. 227 (1999). He bases his constitutional argument that regardless of how the statute is interpreted, brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt on Apprendi v. New Jersey, 530 U. S. 466 (2000). As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner's arguments. Even assuming the validity of Jones and Apprendi, however, I agree that petitioner's arguments that brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt are unavailing. I therefore join Justice Kennedy's opinion in its entirety.
Justice Breyer, concurring in part and concurring in the judgment.
I cannot easily distinguish Apprendi v. New Jersey, 530 U. S. 466 (2000), from this case in terms of logic. For that reason, I cannot agree with the plurality's opinion insofar as it finds such a distinction. At the same time, I continue to believe that 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). And because I believe that extending Apprendi to mandatory minimums would have adverse practical, as well as legal, consequences, I cannot yet accept its rule. I therefore join the Court's
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