Harris v. United States, 536 U.S. 545, 28 (2002)

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Thomas, J., dissenting

The legal consequences of extending Apprendi to the mandatory minimum sentencing context are also seriously adverse. 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. I have discussed these matters fully in my Apprendi dissent. See 530 U. S., at 555. For the reasons set forth there, and in other opinions, see Jones v. United States, 526 U. S. 227, 254 (1999) (Kennedy, J., dissenting); AlmendarezTorres v. United States, 523 U. S. 224 (1998), I would not apply Apprendi in this case.

I consequently join Parts I, II, and IV of the Court's opinion and concur in its judgment.

Justice Thomas, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

The range of punishment to which petitioner William J. Harris was exposed turned on the fact that he brandished a firearm, a fact that was neither charged in his indictment nor proved at trial beyond a reasonable doubt. The United States Court of Appeals for the Fourth Circuit nonetheless held, in reliance on McMillan v. Pennsylvania, 477 U. S. 79 (1986), that the fact that Harris brandished a firearm was a mere sentencing factor to which no constitutional protections attach. 243 F. 3d 806, 808-812 (2001).

McMillan, however, conflicts with the Court's later decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), as the dissenting opinion in Apprendi recognized. See id., at 533 (O'Connor, J., dissenting). The Court's holding today therefore rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago. Given that considerations of stare decisis are at their nadir in cases involving procedural rules implicating fundamental constitutional protections afforded criminal defend-

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