Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
and district wherein the crime shall have been committed." Amdts. 5 and 6. Also, no Member of this Court disputes that due process requires that every fact necessary to constitute a crime must be found beyond a reasonable doubt by a jury if that right is not waived. See In re Winship, 397 U. S. 358, 364 (1970). As with Apprendi, this case thus turns on the seemingly simple question of what constitutes a "crime."
This question cannot be answered by reference to statutory construction alone solely because the sentence does not exceed the statutory maximum. As I discussed at great length in Apprendi, the original understanding of what facts are elements of a crime was expansive:
"[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—of whatever sort, including the fact of a prior conviction—the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. Similarly, if the legislature, rather than creating grades of crimes, has provided for setting the punishment of a crime based on some fact . . . that fact is also an element. No multifactor parsing of statutes, of the sort that we have attempted since McMillan, is necessary. One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact for that entitlement is an element." 530 U. S., at 501 (concurring opinion).
The fact that a defendant brandished a firearm indisputably alters the prescribed range of penalties to which he is exposed under 18 U. S. C. § 924(c)(1)(A). Without a finding that a defendant brandished or discharged a firearm, the penalty range for a conviction under § 924(c)(1)(A)(i) is five
575
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