Erlinger v. United States

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 821–898
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June 21, 2024
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Syllabus
ERLINGER v. UNITED STATES
certiorari
to the united states court of appeals for
the seventh circuit
No. 23–370. Argued March 27, 2024—Decided June 21, 2024
Paul Erlinger pleaded guilty to being a felon in possession of a frearm in
violation of 18 U. S. C. § 922(g). At sentencing, the judge found Mr. Er-
linger eligible for an enhanced sentence under the Armed Career Crimi-
nal Act, § 924(e)(1), which increases the penalty for a § 922(g) conviction
from a maximum sentence of 10 years to a mandatory minimum sentence
of 15 years when the defendant has three or more qualifying convictions
for offenses committed on different occasions. Subsequently, the Sev-
enth Circuit held in unrelated decisions that two of the offenses on which
the government relied for Mr. Erlinger 's sentence enhancement no
longer qualifed as ACCA predicate offenses. The District Court va-
cated Mr. Erlinger's sentence and scheduled resentencing. At the re-
sentencing hearing, prosecutors again pursued an ACCA sentence en-
hancement based on a new set of 26-year-old convictions for burglaries
committed by Mr. Erlinger over the course of several days. Mr. Er-
linger protested that the burglaries were part of a single criminal epi-
sode and did not occur on separate occasions, as required by ACCA.
Moreover, Mr. Erlinger argued that the question whether he committed
these prior burglaries during a single episode or on distinct occasions
required an assessment of the facts surrounding those offenses, and that
the Fifth and Sixth Amendments required that a jury make that assess-
ment. The District Court rejected Mr. Erlinger's request for a jury
and issued a 15-year enhanced sentence. On appeal, the government
confessed error. Pointing to this Court's recent decision in Wooden v.
United States, 595 U. S. 360, which acknowledged that an ACCA “occa-
sions inquiry” can be intensely factual in nature, the government ad-
mitted that given the factual nature of the inquiry and its impact on a
defendant's sentence, the Constitution requires a jury to decide unani-
mously and beyond a reasonable doubt whether Mr. Erlinger's prior
offenses were committed on different occasions. This Court granted
certiorari and appointed counsel to defend the judgment below.
Held: The Fifth and Sixth Amendments require a unanimous jury to make
the determination beyond a reasonable doubt that a defendant's past
offenses were committed on separate occasions for ACCA purposes.
Pp. 829–849.

822 ERLINGER
v. UNITED STATES
Syllabus
(a) The Sixth Amendment promises that “[i]n all criminal prosecu-
ti
ons, the accused” has “the right to a speedy and public trial, by an
impartial jury.” Inherent in that guarantee is an assurance that any
guilty verdict will issue only from a unanimous jury. Ramos v. Louisi-
ana, 590 U. S. 83, 93. The Fifth Amendment further promises that the
government may not deprive individuals of their liberty without “due
process of law.” It safeguards for criminal defendants well-established
common-law protections, including the “ancient rule” that the govern-
ment must prove to a jury every one of its charges beyond a reasonable
doubt. Together, these Amendments place the jury at the heart of our
criminal justice system and ensure a judge's power to punish is derived
wholly from, and remains always controlled by, the jury and its verdict.
Blakely v. Washington, 542 U. S. 296, 306.
The Court has repeatedly cautioned that trial and sentencing prac-
tices must remain within the guardrails provided by these two Amend-
ments. Thus in Apprendi v. New Jersey, 530 U. S. 466, the Court held
that a novel “sentencing enhancement” was unconstitutional because it
violated the rule that only a jury may fnd “facts that increase the pre-
scribed range of penalties to which a criminal defendant is exposed.”
Id., at 490. This principle applies when a judge seeks to issue a sen-
tence that exceeds the maximum penalty authorized by a jury's fndings
as well as when a judge seeks to increase a defendant's minimum
punishment. See, e. g., Alleyne v. United States, 570 U. S. 99, 111–113.
Pp. 829–834.
(b) The government concedes what all of this means for Mr. Erlinger.
To trigger ACCA's mandatory minimum, the government had to prove,
among other things, that his three predicate convictions were “com-
mitted on occasions different from one another.” § 924(e)(1). And as
Wooden observed, deciding whether those past offenses occurred on
three or more different occasions is a fact-laden task. As the govern-
ment recognizes, virtually “any fact” that “increase[s] the prescribed
range of penalties to which a criminal defendant is exposed” must be
resolved by a unanimous jury beyond a reasonable doubt (or freely
admitted in a guilty plea). Apprendi, 530 U. S., at 490. Here, the
sentencing court made a factual fnding that Mr. Erlinger's offenses
occurred on at least three separate occasions. And as in Apprendi and
Alleyne, that factual fnding had the effect of increasing both the maxi-
mum and minimum sentences Mr. Erlinger faced. Thus, Mr. Erlinger
was entitled to have a jury resolve ACCA's occasions inquiry unani-
mously and beyond a reasonable doubt. This Court decides no more
than that. Pp. 834–835.
(c ) C o u r t - a p p o i n t e d a m i c u s c a n n o t a v o i d t h i s c o n c l u s i o n .
Pp. 836–848.
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Syllabus
(1) Amicus relies on an exception announced in Almendarez-Torres
v
. United States, 523 U. S. 224, which he argues permits a judge to fnd
certain facts related to a defendant's past offenses, including whether
he committed them on different occasions. That decision is an outlier.
And the Court has described it as “at best an exceptional departure”
from historic practice. Apprendi, 530 U. S., at 487. It persists as a
“narrow exception” permitting judges to fnd only “the fact of a prior
conviction.” Alleyne, 570 U. S., at 111, n. 1. Pp. 836–839.
(2) Amicus responds that if Almendarez-Torres permits a judge to
fnd the fact of a conviction, that necessarily implies that a judge may
also fnd the jurisdiction in which the underlying offense occurred and
the date it happened, which is generally enough to resolve the occasions
inquiry, making sending it to a jury pointless. This Court disagrees.
To answer such questions, a court will sometimes consult the Shepard
documents in a case, which include judicial records, plea agreements,
and colloquies between a judge and the defendant. See Shepard v.
United States, 544 U. S. 13. This Court's cases hold that a sentenc-
ing judge may use the information gleaned from Shepard documents
for the “limited function” of determining the fact of a prior conviction
and the then-existing elements of that offense. “[N]o more is allowed.”
Mathis v. United States, 579 U. S. 500, 511. Moreover, often Shepard
documents will not contain all the information needed to conduct a sen-
sible ACCA occasions inquiry, and they can also be “prone to error.”
Mathis, 579 U. S., at 512. Pp. 839–842.
(3) Amicus insists this Court's Almendarez-Torres precedents are
mistaken, because the Fifth and Sixth Amendments' original meaning
and common-law traditions authorize judges at sentencing to fnd all
manner of facts about an offender's past crimes. But this Court has
been down this road many times before, and to reconsider all those
precedents now would require, at the least, convincing proof indeed.
See United States v. Gaudin, 515 U. S. 506, 515. Yet amicus offers
nothing like that, and the evidence he does offer does more to hurt than
help his cause. Amicus points to supplemental information procedures
that a few States employed in the early 19th century. But a sentencing
procedure followed by a few States hardly represents “convincing ”
proof that our precedents have mistaken the original meaning of the
Fifth and Sixth Amendments. And in upholding one such scheme, the
Court stressed that, under the law's terms, even “the fact of former con-
viction” had to be “charged” by prosecutors and then “determined by a
jury in a proceeding thereby instituted.” Graham v. West Virginia,
224 U. S. 616, 630. Amicus next turns to the Double Jeopardy Clause,
which permits a judge to look into a defendant's past conduct to ask
whether the government has charged a defendant for the same crime a

824 ERLINGER
v. UNITED STATES
Syllabus
second time. While the Double Jeopardy Clause protects a defendant
by
prohibiting a judge from even empaneling a jury when the defendant
has already faced trial on the charged crime, the Fifth and Sixth
Amendments' jury trial rights provide a defendant with entirely comple-
mentary protections at a different stage of the proceedings by ensuring
that, once a jury is lawfully empaneled, the government must prove
beyond a reasonable doubt to a unanimous jury the facts necessary to
sustain the punishment it seeks. Finally, amicus points to case law and
statutes in four other States. But while this evidence may suggest that
in a small number of jurisdictions, judges could fnd the existence, num-
ber, and dates of a defendant's prior convictions, none of this provides a
persuasive basis for revisiting this Court's many precedents forbidding
judges from doing more, let alone prove a longstanding tradition.
Pp. 843–847.
(4) Amicus argues that leaving the occasions inquiry to juries would
do more to prejudice than to protect defendants. That concern, like
arguments about effciency, cannot alter the demands of the Fifth and
Sixth Amendments. Tools such as bifurcation in any event exist to ad-
dress the prejudicial effect evidence about a defendant's past crimes can
have on a jury. Pp. 847–848.
77 F. 4th 617, vacated and remanded.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Sotomayor, Kagan, and Barrett, JJ., joined. Rob-
erts, C. J., post, p. 849, and Thomas, J., post, p. 850, fled concurring opin-
ions. Kavanaugh, J., fled a dissenting opinion, in which Alito, J., joined,
and in which Jackson, J., joined except as to Part III, post, at 851. Jack-
son, J., fled a dissenting opinion, post, p. 871.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were Rachel A. Chung, Jessie A. Cook,
Heather Welles, and Louis W. Fisher.
Deputy Solicitor General Feigin argued the cause for the
United States in support of petitioner. With him on the
briefs were Solicitor General Prelogar, Acting Assistant At-
torney General Argentieri, Yaira Dubin, and Paul T. Crane.
D. Nick Harper, by invitation of the Court, 601 U. S. –––,
argued the cause and fled a brief as amicus curiae in sup-
port of the judgment below. With him on the brief were
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825
Opinion of the Court
M i guel A. Estrada, Jo n a than C. Bo nd, and Robe r t A.
Ba
tista.*
Justice Gorsuch delivered the opinion of the Court.
Th is case concer ns the Ar med Career Cr i mi na l Ac t
(ACCA) and the Fifth and Sixth Amendments. ACCA im-
poses lengthy mandatory prison terms on certain defend-
ants who have previously committed three violent felonies
or serious drug offenses on separate occasions. The ques-
tion we face is whether a judge may decide that a defendant's
past offenses were committed on separate occasions under
a preponderance-of-the-evidence standard, or whether the
Fifth and Sixth Amendments require a unanimous jury to
make that determination beyond a reasonable doubt.
I
In 2017, the federal government charged Paul Erlinger
under 18 U. S. C. § 922(g) with being a felon unlawfully in
possession of a frearm. At the time, a conviction for that
offense ordinarily carried a sentence of up to 10 years in
prison. § 924(a)(2) (2012 ed.). But the government also
charged Mr. Erlinger under ACCA. And under that stat-
ute, a defendant found guilty of violating § 922(g) can face
even more severe punishment. Specifcally, if the defendant
has three prior convictions for “violent felon[ies]” or “serious
drug offense[s]” that were “committed on occasions different
from one another,” ACCA increases the prison term he faces
to a minimum of 15 years and a maximum of life. § 924(e)(1)
(2012 ed.).
*Briefs of amici curiae urging reversal were fled for FAMM by Amy
Mason Saharia, Mary Price, and Peter Goldberger; for the National Asso-
ciation of Criminal Defense Lawyers by Peter B. Siegal, Jeffrey T. Green,
and David Oscar Markus; and for the National Association of Federal
Defenders by Davina T. Chen, Shelley M. Fite, Michael C. Holley, Andrew
L. Adler, Jennifer Niles Coffn, and Judy Madewell.
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v. UNITED STATES
Opinion of the Court
Mr. Erlinger pleaded guilty to violating § 922(g). But in
doi
ng so, he stressed that his previous convictions were more
than a decade old and since then he had turned his life
around, secured a steady job, built a family, and remained
free from drugs. Tr. of Plea and Sentencing Hearing in
No. 2:18–cr–00013 (SD Ind., Oct. 24, 2018), ECF Doc. 67,
p. 24. In light of these facts, the sentencing judge stated that
a 5-year prison term would represent a “fair sentence.” Id.,
at 30. But the judge also found it more likely than not that
Mr. Erlinger's past included three ACCA-qualifying offenses
committed on three different occasions. Id., at 17. And
based on that fnding, the court concluded, it had no author-
ity to issue a 5-year sentence. Id., at 29–30. Instead, ACCA
required a sentence of at least 15 years. That was “too
high” for Mr. Erlinger's crime, the court emphasized, but it
had “no power” to order anything less. Ibid.
Shortly after the court issued a 15-year sentence consist-
ent with ACCA, the ground shifted. The Seventh Circuit
issued decisions indicating that two of the three offenses on
which the district court had relied to invoke ACCA did not
qualify as “violent felon[ies]” or “serious drug offense[s].”
77 F. 4th 617, 619 (2023) (citing United States v. Glispie, 978
F. 3d 502 (2020), and United States v. De La Torre, 940 F. 3d
938 (2019)). That left Mr. Erlinger with only one qualifying
prior conviction, not the three ACCA requires. Recogniz-
ing as much, the district court vacated its sentence and set
the case for a new sentencing hearing. Order, ECF Doc. 81.
There, prosecutors once more pursued a 15-year ACCA
sentence. This time, though, they pointed to a new set of
prior convictions arising from burglaries Mr. Erlinger com-
mitted when he was 18 years old—some 26 years before his
§ 922(g) charge. Tr. of Video Resentencing Hearing, ECF
Doc. 120, at 37–38. As the government told it, within a span
of days Mr. Erlinger burglarized a pizza shop, a sporting
goods store, and two restaurants. Ibid. Because each of

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Opinion of the Court
these burglaries occurred on different occasions, the govern-
ment
submitted, each could serve as an ACCA predicate and
collectively they could support an ACCA sentence. Id., at
39–40.
Mr. Erlinger protested. He maintained that his decades-
old burglaries had not occurred on four separate occasions
but during a single criminal episode, all of which meant
he still lacked the three prior offenses ACCA requires. Id.,
at 20. More than that, Mr. Erlinger argued, the question
whether he committed his prior burglaries during a single
episode or on distinct occasions required an assessment of
the facts surrounding those offenses. Id., at 22–23. And,
he contended, the Fifth and Sixth Amendments entitled him
to have a jury make that assessment. Id., at 23.
The district court rejected Mr. Erlinger's request for a
jury. It proceeded to fnd for itself that each of his 26-year-
old burglaries occurred on distinct occasions. Id., at 48–49.
Armed with this fnding, the court held that Mr. Erlinger
had at least three previous ACCA-qualifying offenses and
once more issued a 15-year sentence. Again, the court said
that it thought the result “unfortunate” and “excessive.”
Id., at 50. But, again, it said ACCA left it no choice. Id.,
at 50–51.
On appeal, Mr. Erlinger renewed his argument that the
Fifth and Sixth Amendments entitled him to have a jury
decide whether his burglaries occurred on different occa-
sions. But this time, the government confessed error. The
Constitution, it said, “requires a jury” to decide unanimously
and beyond a reasonable doubt whether Mr. Er l inger 's
ACCA predicates were “ `committed on occasions different
from one another.' ” 77 F. 4th, at 619, 620.
In explaining its turnabout, the government pointed to
this Court's recent decision in Wooden v. United States, 595
U. S. 360 (2022). That decision did not directly address
whether a judge may, or a jury must, resolve disputes about

828 ERLINGER
v. UNITED STATES
Opinion of the Court
whether multiple crimes occurred on multiple occasions.
Id
., at 365, n. 3; see id., at 397, n. 7 (Gorsuch, J., concurring
in judgment). But, the government acknowledged, Wooden
did hold that ACCA's occasions “inquiry” can require an
examination of a “range” of facts, including whether the de-
fendant's past offenses were “committed close in time, ”
whether they were committed near to or far from one an-
other, and whether the offenses were “similar or inter-
twined” in purpose and character. Id., at 369. And given
the intensely factual nature of this inquiry and the impact
its resolution can have on a defendant's sentence, the govern-
ment admitted, a jury must resolve it. That conclusion, the
government represented, fows directly from this Court's
consistent holdings that the Fifth and Sixth Amendments
generally guarantee a defendant the right to have a unani-
mous jury fnd beyond a reasonable doubt any fact that in-
creases his exposure to punishment. Brief for United
States in No. 22–1926 (CA7), pp. 9–11.
Despite the government's concession, the Seventh Circuit
refused to disturb the district court's sentence. 77 F. 4th,
at 621–622. That left Mr. Erlinger to petition this Court for
certiorari. The government fled a brief in support of his
petition. In it, the government argued that a number of
courts of appeals have refused requests for juries in cases
like Mr. Erlinger's and that “this Court's intervention is nec-
essary to ensure that the circuits correctly recognize defend-
ants' constitutional rights in this context.” Brief for United
States on Pet. for Cert. 5–6.
We agreed to t ake up Mr. Er l i nger 's case to decide
whether ACCA's occasions inquiry must be resolved by a
jury. 601 U. S. ––– (2023). Because the government now
agrees with Mr. Erlinger about the proper resolution of that
question, we appointed Nick Harper to defend the judgment
below as amicus curiae. 601 U. S. ––– (2023). He has ably
discharged his responsibilities.
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Opinion of the Court
II
A
Promi
nent among the reasons colonists cited in the Decla-
ration of Independence for their break with Great Britain
was the fact Parliament and the Crown had “depriv[ed]
[them] in many cases, of the benefts of Trial by Jury.” ¶20.
For centuries, English law had recognized the right to trial
by jury. Duncan v. Louisiana, 391 U. S. 145, 151 (1968).
Yet, as tensions grew between the British Empire and its
American Colonies, imperial authorities responded by strip-
ping away that ancient right. By their lights, colonial juries
“ `were not to be trusted' ” because they found for defend-
ants too of ten. D. Love joy, Rights Imply Equality: The
Case Against Admiralty Jurisdiction in America, 1764–1776,
16 Wm. & Mary Q. 459, 468 (1959). To secure more vigorous
enforcement of the Stamp Act and other unpopular laws,
authorities directed more and more cases to vice-admiralty
courts where crown-appointed judges, rather than local ju-
ries, decided the defendant's fate. Jones v. United States,
526 U. S. 227, 245–246 (1999). Just as authorities hoped,
the tactic proved “ `most effective' ” at securing the verdicts
they wished. Parklane Hosiery Co. v. Shore, 439 U. S. 322,
340, n. 3 (1979) (Rehnquist, J., dissenting) (quoting 11 W.
Holdsworth, A History of English Law 110 (1966)).
After securing their independence, the founding genera-
tion sought to ensure what happened before would not hap-
pen again. As John Adams put it, the founders saw repre-
sentative government and trial by jury as “the heart and
lungs” of liberty. Letter from Clarendon to W. Pym (Jan.
27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977).
“[W]ithout them,” he wrote, we “have no other fortifcation
. . . against being ridden like horses, feeced like sheep,
worked like cattle, and fed and clothed like swine and
hounds.” Ibid. Refecting that sentiment, the right to trial
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830 ERLINGER
v. UNITED STATES
Opinion of the Court
by jury in criminal cases was, on one telling, the only right
i
ncluded in every newly enacted state constitution. A. Al-
schuler & A. Deiss, A Brief History of the Criminal Jury in
the United States, 61 U. Chi. L. Rev. 867, 870 (1994).
Those who drafted our Federal Constitution took just as
strong a stand on the jury trial right. As originally pro-
posed, the Constitution promised that “[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury.”
Art. III, § 2, cl. 3. In the ratifcation debates that followed,
some questioned the adequacy of this provision; even with
it, they feared, the new federal government might fall prey
to the kinds of temptations that led the British to restrict
the jury trial right in the colonies. That right, they argued,
had to be “guard[ed] with the most jealous circumspection.”
A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in
The Complete Bill of Rights 681 (N. Cogan 2d ed. 2015) (in-
ternal quotation marks and italics omitted). To address this
and other concerns about the new Constitution, James Madi-
son agreed to draft a series of amendments we now know as
the Bill of Rights. No fewer than three of those ten amend-
ments touch on the right to trial by jury, two with implica-
tions for criminal cases. Amdts. 5, 6, 7. Madison himself
described protections for the jury trial right as among “the
most valuable” that appear in “the whole list” of amend-
ments he produced. 1 Annals of Cong. 755 (1789).
The Sixth Amendment promises that “[i]n all criminal
prosecutions, the accused” has “the right to a speedy and
public trial, by an impartial jury.” Inhering in that guaran-
tee is an assurance that a guilty verdict will issue only from
a unanimous jury. Ramos v. Louisiana, 590 U. S. 83, 93
(2020). The Fifth Amendment further promises that the
government may not deprive individuals of their liberty
without “due process of law.” It is a promise that safe-
guards for criminal defendants those procedural protections
well established at common law, including the “ancient rule”
that the government must prove to a jury every one of its
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Opinion of the Court
charges beyond a reasonable doubt. United States v. Hay-
mo
nd, 588 U. S. 634, 641 (2019) (plurality opinion); see Ap-
prendi v. New Jersey, 530 U. S. 466, 477–478 (2000); United
States v. Gaudin, 515 U. S. 506, 510 (1995); Sullivan v. Loui-
siana, 508 U. S. 275, 277–278 (1993).
The Fifth and Sixth Amendments placed the jury at the
heart of our criminal justice system. From the start, those
provisions were understood to require the government to in-
clude in its criminal charges “ `all the facts and circumstances
which constitute the offence.' ” Apprendi, 530 U. S., at 478
(quoting J. Archbold, Pleading and Evidence in Criminal
Cases 44 (15th ed. 1862)). Should an “indictment or `accusa-
tion . . . lack any particular fact which the laws ma[d]e es-
sential to the punishment,' it was treated as `no accusation'
at all.” Haymond, 588 U. S., at 642 (quoting 1 J. Bishop,
Criminal Procedure § 87, p. 55 (2d ed. 1872) (some alterations
omitted)). And at all times the “ `truth of every accusa-
tion' ” against a defendant had to be “ `confrmed by the unan-
imous suffrage of twelve of [his] equals and neighbours.' ”
Apprendi, 530 U. S., at 477 (quoting 4 W. Blackstone, Com-
mentaries on the Laws of England 343 (1769); emphasis
deleted).
Equally, the Fifth and Sixth Amendments sought to en-
sure that a judge's power to punish would “deriv[e] wholly”
from, and remain always “control[led]” by, the jury and its
verdict. Blakely v. Washington, 542 U. S. 296, 306 (2004).
Ordinarily, common-law crimes carried “specifc sanctions,
and `[o]nce the facts of the offense were determined by the
jury, the judge was meant simply to impose the prescribed
sentence.' ” Haymond, 588 U. S., at 642 (quoting Alleyne v.
United States, 570 U. S. 99, 108 (2013) (plurality opinion)).
Even when it came to early American statutes that gave
judges a measure of discretion in selecting among possible
sentences, “the ranges themselves were linked to particular
facts” found by the jury. Alleyne, 570 U. S., at 109 (collect-
ing examples). All of which guaranteed that a judge could
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832 ERLINGER
v. UNITED STATES
Opinion of the Court
not “ `swell the penalty above what the law . . . provided for
the
acts' ” found by a jury of the defendant's peers. Hay-
mond, 588 U. S., at 642 (quoting Apprendi, 530 U. S., at 519
(Thomas, J., concurring)).
These principles represent not “procedural formalit[ies]”
but “fundamental reservation[s] of power” to the American
people. Blakely, 542 U. S., at 305–306. By requiring the
Executive Branch to prove its charges to a unanimous jury
beyond a reasonable doubt, the Fifth and Sixth Amendments
seek to mitigate the risk of prosecutorial overreach and mis-
conduct, including the pursuit of “pretended offenses” and
“arbitrary convicti ons. ” The Federa l ist No. 83, p. 499
(C. Rossiter ed. 1961); accord, Federal Farmer, Letter XV
(Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist
320 (H. Storing ed. 1981). By requiring a unanimous jury
to fnd every fact essential to an offender's punishment, those
amendments similarly seek to constrain the Judicial Branch,
ensuring that the punishments courts issue are not the result
of a judicial “inquisition” but are premised on laws adopted
by the people's elected representatives and facts found by
members of the community. Blakely, 542 U. S., at 307; Hay-
mond, 588 U. S., at 640–641. Both of these checks on gov-
ernmental power, the framers appreciated, were “anchor[s]”
essential to prevent a slide back toward regimes like the
vice-admiralty courts they so despised. Letter from T. Jef-
ferson to T. Paine (July 11, 1789), reprinted in 15 Papers of
Thomas Jefferson 266, 269 (J. Boyd ed. 1958).
With the passage of time, and accelerating in earnest in
the 20th century, various governments in this country sought
to experiment with new trial and sentencing practices. See
Mistretta v. United States, 488 U. S. 361, 363–367 (1989); Wil-
liams v. New York, 337 U. S. 241, 247–248 (1949); see also
P. Tappan, Sentencing Under the Model Penal Code, 23
Law & Contemp. Prob. 528, 529–532 (1958). But in case
after case, this Court has cautioned that, while some experi-
ments may be tolerable, all must remain within the Fifth
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So, for example, in Apprendi this Court faced a case in-
volv
ing a New Jersey offense that ordinarily carried a maxi-
mum sentence of 10 years in prison. 530 U. S., at 468. The
State, however, had adopted a novel “sentencing enhance-
ment” that purported to allow a judge to impose an even
longer term of imprisonment after fnding, by a preponder-
ance of the evidence, that the offender's crime was motivated
by racial bias. Id., at 468–471. Relying on that statutory
authority, the sentencing judge ordered the defendant to
serve 12 years in prison. Id., at 471. This Court found the
sentence unconstitutional, and did so for a by-now familiar
reason: Only a jury may fnd “ `facts that increase the pre-
scribed range of penalties to which a criminal defendant is
exposed.' ” Id., at 490.
It is a principle we have since reiterated in response to a
variety of other recent sentencing innovations. See Hay-
mond, 588 U. S., at 644 (collecting cases). And it is a princi-
ple, we have observed, that does not just apply when a judge
seeks to issue a sentence that exceeds the maximum penalty
authorized by a jury's fndings (or a guilty plea). It is a
principle that also applies when a judge seeks to increase a
defendant's minimum punishment. Alleyne illustrates the
point. There, we confronted a case in which a jury had con-
victed the defendant of a crime that usually carried a sen-
tence of between fve years and life in prison. 570 U. S., at
103–104. But a separate statutory “sentencing enhance-
ment” ostensibly allowed the judge to transform that 5-year
minimum sentence into a 7-year minimum sentence if he
found a certain additional fact by a preponderance of the
evidence. Ibid. That innovation, too, the Court held, im-
properly invaded the jury's province because “[a] fact that
increases” a defendant's exposure to punishment, whether by
triggering a higher maximum or minimum sentence, must
“be submitted to a jury” and found unanimously and beyond
a reasonable doubt. Id., at 111–113.
The principles Apprendi and Alleyne discussed are so
frmly entrenched that we have now overruled several deci-

834 ERLINGER
v. UNITED STATES
Opinion of the Court
sions inconsistent with them. See, e. g., Hurst v. Florida,
577
U. S. 92, 101–102 (2016) (overruling Hildwin v. Florida,
490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida,
468 U. S. 447 (1984)); Alleyne, 570 U. S., at 107 (overruling
Harris v. United States, 536 U. S. 545 (2002)); Ring v. Ari-
zona, 536 U. S. 584, 609 (2002) (overruling Walton v. Ari-
zona, 497 U. S. 639 (1990)).
B
Commendably, the government concedes before us, as it
did before the court of appeals, what all this means for
Mr. Er linger 's case and others like it. Under § 922(g),
Mr. Erlinger faced between 0 and 10 years in prison.
§ 924(a)(2) (2012 ed.). To trigger ACCA and expose him to
longer prison terms, the government had to prove that his
past included three convictions for “violent felon[ies]” or “se-
rious drug offense[s]” that were “committed on occasions dif-
ferent from one another.” § 924(e)(1). And under Wooden,
deciding whether those past offenses occurred on three or
more different occasions is a fact-laden task. Were the
crimes “committed close in time”? 595 U. S., at 369. How
about the “[p]roximity” of their “location[s]”? Ibid. Were
the offenses “similar or intertwined” in purpose and charac-
ter? Ibid. All these questions, Wooden observed, “may be
relevant” to determining whether the offenses were com-
mitted on one occasion or separate ones—and all require
facts to be found before ACCA's more punitive mandatory
minimum sentence may be lawfully deployed. Ibid.
As the government recognizes, there is no doubt what the
Constitution requires in these circumstances: Virtually “any
fact” that “ `increase[s] the prescribed range of penalties to
which a criminal defendant is exposed' ” must be resolved by
a unanimous jury beyond a reasonable doubt (or freely ad-
mitted in a guilty plea). Apprendi, 530 U. S., at 490; see
Brief for United States 9. Judges may not assume the jury's
factfnding function for themselves, let alone purport to per-
form it using a mere preponderance-of-the-evidence stand-
ard. To hold otherwise might not portend a revival of the
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vice-admiralty courts the framers so feared. See Part II–
A,
supra. But all the same, it would intrude on a power
the Fifth and Sixth Amendments reserve to the American
people.
Really, this case is as nearly on all fours with Apprendi
and Alleyne as any we might imagine. In Apprendi, a judge
relied on his own factual fndings under a preponderance-of-
the-evidence standard to increase the defendant's maximum
sentence from 10 to 20 years. 530 U. S., at 469. In Alleyne,
a judge proceeded the same way to increase the defendant's
minimum sentence from fve to seven years. 570 U. S.,
at 104. Here, the sentencing court's factual fnding that
Mr. Erlinger's offenses occurred on at least three separate
occasions had the effect of increasing both the maximum and
minimum sentences he faced. Rather than a maximum sen-
tence of 10 years in prison, the judge's fnding left Mr. Er-
linger exposed to life in prison. Rather than a minimum
penalty of no prison time, the judge's fnding meant Mr. Er-
linger had to serve at least 15 years.
While recognizing Mr. Erlinger was entitled to have a jury
resolve ACCA's occasions inquiry unanimously and beyond a
reasonable doubt, we decide no more than that. For pur-
poses of the proceedings before us, the parties take as given
that Mr. Erlinger committed four burglaries and that each
qualifes as a “violent offense” under ACCA. But they dis-
agree vigorously about whether those burglaries took place
on at least three different occasions (so that ACCA's en-
hanced sentences would apply) or during a single criminal
episode (so that they would not). Presented with evidence
about the times, locations, purpose, and character of those
crimes, a jury might have concluded that some or all oc-
curred on different occasions. Or it might not have done so.
All we can say for certain is that the sentencing court erred
in taking that decision from a jury of Mr. Erlinger's peers.
1
1
Justice Jackson pursues an argument neither the government nor
amicus nor the principal dissent attempts. She says Apprendi v. New
Jersey, 530 U. S. 466 (2000), “was wrongly decided,” and all but calls on
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836 ERLINGER
v. UNITED STATES
Opinion of the Court
III
A
The
Court-appointed amicus resists the conclusion we
reach. Unlike Justice Jackson, see n. 1, supra, however,
amicus does not dispute the Constitution's time-honored
guarantee that a unanimous jury ordinarily must fnd beyond
a reasonable doubt any fact that increases a defendant's ex-
posure to punishment. See Brief for Court-Appointed Ami-
the Court to overturn our many precedents applying it, post, at 872, and
n. 1, 880–889. But rather than meaningfully engage with the Constitu-
tion, its original meaning and history, or our precedents, Justice Jackson
would abandon “constitutional theory” and appeal to a different authority.
Post, at 897. “In my view,” post, at 890, Justice Jackson contends, ju-
ries cannot “deal with the fne-grained, nuanced determinations . . . that
are necessary to fairly adjudicate factual questions like the one that
ACCA's occasions inquiry raises,” post, at 893. But the Constitution does
not take such a dim view about the capacity of jurors or the rigors of trial.
Surely, too, juries are no less capable than judges to decide whether three
past events happened on three separate occasions. Day in and day out,
using everyday trial procedures, juries decide exponentially more complex
questions than that. Nor, of course, does Apprendi prohibit legislatures
from enacting reforms authorizing judges to lower sentences based on
their own factfnding. See, e. g., First Step Act of 2018, Pub. L. 115–391,
132 Stat. 5194; 18 U. S. C. § 3553(f ) (doing just that). The only thing
judges may not do consistent with Apprendi is increase a defendant's ex-
posure to punishment based on their own factfnding. All of which leaves
Justice Jackson with her real complaint: In her view, it is “wildly ineff-
cient” to require the government to call witnesses and present evidence—
which is to say prove its case—when a judge might more easily enhance
a defendant's exposure to punishment by consulting “sometimes-decades-
old,” post, at 893, and error-prone court records, in fra, at 840–842. But
does Justice Jackson really think it too much to ask the government to
prove its case (as it concedes it must) with reliable evidence before seeking
enhanced punishments under a statute like ACCA when the “practical
realit[y]” for defendants like Mr. Erlinger is exposure to an additional
decade (or more) in prison? Post, at 897. Justice Jackson may view
juries as “roadblocks” to higher punishments. Post, at 889. But “[t]he
bottom line is this”: the people ratifed the Fifth and Sixth Amendments,
not any of our personal views. Post, at 897.

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cus Curiae 1. In defending the decision below, amicus
r
el ies i nstead on an excepti on to that r u le th is Cour t
announced in Almendarez-Torres v. United States, 523 U. S.
224 (1998). On amicus's telling, that exception permits a
judge to fnd perhaps any fact related to a defendant's past
offenses, including whether he committed them on different
occasions. Brief for Court-Appointed Amicus Curiae 10.
The principal dissent presses the same line of argument.
Post, at 855 (opinion of Kavanaugh, J.).
We disagree. In Almendarez-Torres, the Court consid-
ered sentencing laws applicable to aliens who returned to
the United States after a previous removal. The default
sentencing range was up to two years of imprisonment. 8
U. S. C. § 1326(a) (1994 ed.). But a fnding that the govern-
ment previously removed the alien after a “conviction for
commission of an aggravated felony” triggered a new maxi-
mum penalty of up to 20 years in prison. § 1326(b) (1994
ed.). In Almendarez-Torres, the Court permitted a judge
to undertake the job of fnding the fact of a prior convic-
tion—and that job alone. 523 U. S., at 246–247.
Almost immediately, too, the decision came under scrutiny.
Jones, 526 U. S., at 249, n. 10. The Court has since de-
scribed Almendarez-Torres as “at best an exceptional depar-
ture” from “historic practice.” Apprendi, 530 U. S., at 487.
That decision, we have said, parted ways from the “uniform
course of decision during the entire history of our jurispru-
dence.” Id., at 490. It was “arguabl[y] . . . incorrec[t].”
Id., at 489. And it amounted to an “unusual . . . exception
to the Sixth Amendment rule in criminal cases that `any fact
that increases the penalty for a crime' must be proved to a
jury.” Pereida v. Wilkinson, 592 U. S. 224, 238 (2021) (quot-
ing Apprendi, 530 U. S., at 490).
In separate opinions, a number of Justices have criticized
Almendarez-To r res fur ther yet, and Justice Thomas,
whose vote was essential to the majority in that case, has
called for it to be overruled. See, e. g., Mathis v. United
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838 ERLINGER
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Opinion of the Court
States, 579 U. S. 500, 522 (2016) (Thomas, J., concurring); Des-
camps
v. United States, 570 U. S. 254, 280 (2013) (Thomas,
J., concurring in judgment); Shepard v. United States, 544
U. S. 13, 27 (2005) (Thomas, J., concurring in part and concur-
ring in judgment); see also Jones, 526 U. S., at 252–253
(Stevens, J., concurring); Monge v. California, 524 U. S. 721,
741 (1998) (Scalia, J., joined by Souter and Ginsburg, JJ.,
dissenting).
Still, no one in this case has asked us to revisit Almendarez-
Torres. Nor is there need to do so today. In the years
since that decision, this Court has expressly delimited its
reach. It persists as a “narrow exception” permitting
judges to fnd only “the fact of a prior conviction.” Alleyne,
570 U. S., at 111, n. 1. Under that exception, a judge may
“do no more, consistent with the Sixth Amendment, than de-
termine what crime, with what elements, the defendant was
convicted of.” Mathis, 579 U. S., at 511–512. We have reit-
erated this limit on the scope of Almendarez-Torres “over
and over,” to the point of “downright tedium.” 579 U. S.,
at 510, 519.
2
And so understood, Almendarez-Torres does
nothing to save the sentence in this case. To determine
whether Mr. Erlinger's prior convictions triggered ACCA's
enhanced penalties, the district court had to do more than
identify his previous convictions and the legal elements re-
quired to sustain them. It had to fnd that those offenses
2
See Pereida v. Wilkinson, 592 U. S. 224, 238 (2021); United States v.
Haymond, 588 U. S. 634, 644, n. 3 (2019) (plurality opinion); Descamps v.
United States, 570 U. S. 254, 269 (2013); Cunningham v. California, 549
U. S. 270, 282 (2007); Shepard v. United States, 544 U. S. 13, 24 (2005)
(plurality opinion); United States v. Booker, 543 U. S. 220, 244 (2005);
Blakely v. Washington, 542 U. S. 296, 301 (2004); Apprendi v. New Jersey,
530 U. S. 466, 490 (2000). The principal dissent complains that some
of these decisions “did not involve recidivism” questions. Post, at 857
(opinion of Kavanaugh, J.). But surely our consistent explanations of
Almendarez-Torres's reach cannot be so casually dismissed. Perhaps es-
pecially when those explanations were repeated in multiple cases that did
“involve recidivism,” such as Shepard, Descamps, and Mathis.
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Opinion of the Court
occurred on at least three separate occasions. And, in doing
so
, the court did more than Almendarez-Torres allows.
B
Perhaps, amicus replies, but perhaps not. If Almendarez-
Torres permits a judge to fnd “what crime, with what ele-
ments, the defendant was convicted of,” Mathis, 579 U. S., at
511–512, amicus reasons, that necessarily implies a judge
may also fnd the jurisdiction in which the underlying offense
occurred and the date it happened. Br ief for Cour t-
Appointed Amicus Curiae 29. And, amicus continues, in at
least some (but admittedly not all) cases, knowing those facts
will make the occasions inquiry so “ `straightforward' ” that
sending it to a jury would be pointlessly ineffcient. Id., at
39–40.
Agai n, we disagree. To conduc t the narrow i nquiry
Almendarez-Torres authorizes, a court may need to know
the jurisdiction in which the defendant's crime occurred and
its date in order to ascertain what legal elements the govern-
ment had to prove to secure a conviction in that place at that
time. And to answer those questions, a sentencing court
may sometimes consult “a restricted set of materials,” often
called Shepard documents, that include judicial records, plea
agreements, and colloquies between a judge and the defend-
ant. Descamps, 570 U. S., at 262; see Shepard, 544 U. S., at
20–21, 26; Taylor v. United States, 495 U. S. 575, 602 (1990).
None of that, however, means that a court may use Shep-
ard documents or any other materials for any other purpose.
To ensure compliance with the Fifth and Sixth Amendments,
a sentencing judge may use the information he gleans from
Shepard documents for the “limited function” of determining
the fact of a prior conviction and the then-existing elements
of that offense. Descamps, 570 U. S., at 260. “[N]o more”
is allowed. Mathis, 579 U. S., at 511. In particular, a judge
may not use information in Shepard documents to decide
“what the defendant . . . actually d[id],” or the “means” or
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Opinion of the Court
“manner” in which he committed his offense in order to in-
crease
the punishment to which he might be exposed. 579
U. S., at 504, 510–511; see Descamps, 570 U. S., at 269. To
sanction that practice would be to allow a sentencing court
to do exactly what the Fifth and Sixth Amendments forbid.
Ibid.
The sentencing court in this case disregarded these con-
straints. To determine what legal elements attached to
Mr. Erlinger's decades-old offenses, the court might have
needed to consult Shepard documents to ascertain the juris-
diction in which they occurred and the date on which they
happened. But the court had no need or authority “to go
any further,” Mathis, 579 U. S., at 511, and assume for itself
the responsibility of deciding whether Mr. Erlinger's past
offenses differed enough in time, location, character, and pur-
pose to have transpired on different occasions. Let alone
undertake that inquiry all with an eye toward increasing his
punishment. The Fifth and Sixth Amendments “contem-
plat[e] that a jury—not a sentencing court—will fnd such
facts, unanimously and beyond a reasonable doubt.” Des-
camps, 570 U. S., at 269.
3
Other considerations fortify our conclusion. Of ten, as
amicus concedes, Shepard documents will not contain all the
information needed to conduct a sensible ACCA occasions
inquiry, such as the exact times and locations of the defend-
ant's past crimes. Brief for Court-Appointed Amicus Cu-
3
The principal dissent dismisses our precedents restricting the materi-
als and facts judges can consider on the ground that those decisions did
not “purpor[t] to articulate any Sixth Amendment holding.” Post, at 858
(opinion of Kavanaugh, J.). But, as the government recognizes, this
Court did address the Sixth Amendment and “meant what it said.” See
Reply Brief for United States 7. As the Court has said before and we
hold again today: “[A] judge cannot go beyond identifying the crime of
conviction to explore the manner in which the defendant committed that
offense. . . . He can do no more, consistent with the Sixth Amendment,
than determine what crime, with what elements, the defendant was con-
victed of.” Mathis v. United States, 579 U. S. 500, 511–512 (2016).
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riae 40. Even when Shepard documents do contain that
k
ind of granular information, more still may be required.
After all, this Court has held that no particular lapse of time
or distance between offenses automatically separates a sin-
gle occasion from distinct ones. Wooden, 595 U. S., at 369–
370. Often, a qualitative assessment about “the character
and relationship” of the offenses may be required. Id., at
369. So may an inquiry into whether the crimes shared “a
common scheme or purpose.” Ibid.
Not only are Shepard documents of limited utility, they
can be “prone to error.” Mathis, 579 U. S., at 512; see also
Brief for National Association of Federal Defenders as Ami-
cus Curiae 8–15 (NAFD Brief ) (recounting examples of ma-
terial errors); post, at 895 (opinion of Jackson, J.) (acknowl-
edging records are “imperfect” and may contain “material
gaps”). The risk of error may be especially grave when it
comes to facts recounted in Shepard documents on which
adversarial testing was “unnecessary” in the prior proceed-
ing. Mathis, 579 U. S., at 512. As we have recognized, “[a]t
trial, and still more at plea hearings, a defendant may have
no incentive to contest what does not matter” to his convic-
tion at the time. Ibid. He may even “ `have good reason
not to' ” haggle over seemingly immaterial errors in his judi-
cial records. Ibid. (quoting Descamps, 570 U. S., at 270).
Those realities counsel caution in the use of Shepard docu-
ments. At the time of his prior conviction, a defendant
might not have cared if a judicial record contained a mistake
about, say, the time or location of his offense. Back then,
fne details like those might not have mattered a bit to his
guilt or innocence. Contesting them needlessly, too, might
have risked squandering the patience and good will of a jury
or the judge responsible for pronouncing a sentence. Yet,
years later and faced with an ACCA charge, those kinds of
details can carry with them life-altering consequences. For
Mr. Erlinger, they may mean perhaps 10 more years in
prison. As a matter of fair notice alone, old recorded de-
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Opinion of the Court
tails, prone to error, sometimes untested, often inessential,
and
the consequences of which a defendant may not have
appreciated at the time, “should not come back to haunt [him]
many years down the road by triggering a lengthy manda-
tory sentence.” 579 U. S., at 512; see also Jones, 526 U. S.,
at 249.
We do not question amicus's assessment that in many
cases the occasions inquiry will be “ `straightforward. ' ”
Brief for Court-Appointed Amicus Curiae 39. Often, a de-
fendant's past offenses will be different enough and sepa-
rated by enough time and space that there is little question
he committed them on separate occasions. But none of that
means a judge rather than a jury should make the call.
There is no effciency exception to the Fifth and Sixth
Amendments. In a free society respectful of the individual,
a criminal defendant enjoys the right to hold the government
to the burden of proving its case beyond a reasonable doubt
to a unanimous jury of his peers “ `regardless of how over-
whelmin[g]' ” the evidence may seem to a judge. Rose v.
Clark, 478 U. S. 570, 578 (1986).
4
4
The principal dissent stresses that, despite our repeated admonitions
about the limitations associated with the use of Shepard materials, “all 12
Courts of Appeals” have permitted judges to use them to resolve the occa-
sions inquiry. Post, at 856 (opinion of Kavanaugh, J.). But most of the
decisions the dissent cites issued before Wooden's clarifcation about the
nature of the occasions inquiry, a clarifcation even the government now
recognizes means a jury is required. And to the extent some lower courts
have continued to allow judges to resolve occasions inquiries even after
Wooden v. United States, 595 U. S. 360 (2022), it seems confusion about
Almendarez-Torres has played a role in their misapprehension about what
the Constitution requires. See, e. g., United States v. Stowell, 82 F. 4th
607, 611 (CA8 2023) (en banc) (Erickson, J., dissenting) (criticizing the ma-
jority for treating as “a foregone conclusion” that a judge may continue to
fnd facts not proved to the jury to decide the occasions inquiry); United
States v. Brown, 77 F. 4th 301, 301–302 (CA4 2023) (statement of Heytens,
J.) (noting the “uncertain scope of Almendarez-Torres”); id., at 302 (Nie-
meyer, J., concurring in part) (conceding “different approach[es]” exist
“as to the scope of Almendarez-Torre[s]”); id., at 303 (Wynn, J., dissenting
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Opinion of the Court
C
Ami
cus next asks us to turn from doctrine to history.
While our precedents have consistently read Almendarez-
Torres as permitting a judge to fnd only the fact of a prior
conviction and the elements required to sustain it, he insists
our precedents are mistaken. Properly understood, he sub-
mits, the Fifth and Sixth Amendments' original meaning and
“deep” common-law traditions authorize judges at sentenc-
ing to fnd all manner of facts about an offender's past
crimes. Brief for Court-Appointed Amicus Curiae 7.
We have been down this road before. In Apprendi, the
Court carefully studied the original meaning of the Fifth and
Sixth Amendments and found that almost “any fact that in-
creases the penalty for a crime beyond the prescribed statu-
tory maximum” was understood at the time of the Nation's
founding to be a fact a jury must fnd. 530 U. S., at 490; see
also id., at 499–512 (Thomas, J., concurring). In the years
since, we have come to the same conclusion in one decision
after another. See, e. g., Mathis, 579 U. S., at 510; supra, at
833–834 (collecting cases).
To reconsider all those precedents now would require, at
the least, proof “convincing indeed.” Gaudin, 515 U. S., at
515. Yet amicus offers nothing like that. He points to the
“supplemental-information” procedures a few States em-
ployed “ i n the ear ly 19th century. ” Br ief for Cour t-
Appointed Amicus Curiae 15. Those procedures allowed
prosecutors seeking enhanced penalties premised on a de-
fendant's past convictions to charge them in “a supplemental,
post-conviction information,” rather than in “a pre-conviction
indictment.” Ibid. And, amicus stresses, this Court up-
held one State's supplemental-information scheme in Gra-
ham v. West Virginia, 224 U. S. 616 (1912). The principal
from denial of rehearing en banc) (questioning “the continuing viability of
Almendarez-Torres”); see also United States v. Dudley, 5 F. 4th 1249, 1278
(CA11 2021) (Newsom, J., concurring in part and dissenting in part).
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dissent echoes the same points. Post, at 864–867 (opinion of
Ka
vanaugh, J.).
But, if anything, the evidence amicus cites does more to
hurt than help his cause. For one thing, a sentencing pro-
cedure followed by a few States hardly represents “con-
vincing ” proof that our precedents have mistaken the origi-
nal meaning of the Fifth and Sixth Amendments. Gaudin,
515 U. S., at 515; see id., at 519. For another, when this
Court upheld one of these supplemental-information schemes
in Graham, it stressed that, under the law's terms, even
“the fact of former conviction” had to be “charged” by prose-
cutors and then “determined by a jury in a proceeding
thereby instituted.” 224 U. S., at 630. Put those points to-
gether and amicus's evidence provides perhaps more reason
to question Almendarez-Torres's narrow exception than to
expand it.
5
Reaching for another tradition, amicus (but not the princi-
pal dissent) turns to the Constitution's Double Jeopardy
Clause. That Clause, amicus observes, permits a judge to
ask whether the government has charged a defendant for the
same crime a second time. From this, he suggests, it must
be that a judge can also look into the defendant's past con-
duct to increase his sentence. Brief for Court-Appointed
5
Amicus emphasizes that supplemental-information procedures became
more “widely adopted” in the 1920s after Graham. Brief for Court-
Appointed Amicus Curiae 16. But, since Apprendi, this Court has in-
sisted on “remain[ing] true” to the Fifth and Sixth Amendment's original
meaning and protecting the rights they secure against “ `erosion.' ” 530
U. S., at 483. Accordingly, relatively modern innovations move us little,
for they might just as well represent departures from the Constitution's
historic protections as evidence of them. Ibid.; accord, Gaudin, 515 U. S.,
at 518–519. Nor, for that matter, does looking to more modern times do
much to help amicus. He does not dispute that, even as late as 1965,
juries usually still had to fnd facts about prior convictions, whether under
supplemental-information regimes or more traditional ones. See Ap-
prendi, 530 U. S., at 489, n. 15; Almendarez-Torres v. United States, 523
U. S. 224, 261 (1998) (Scalia, J., dissenting).
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Opinion of the Court
Amicus Curiae 25–26. But that, too, does not follow. The
Double
Jeopardy Clause protects a defendant by prohibiting
a judge from even empaneling a jury when the defendant has
already faced trial on the charged crime. See, e. g., Green
v. United States, 355 U. S. 184, 188 (1957). The Fifth and
Sixth Amendments' jury trial rights provide a defendant
with entirely complementary protections at a different stage
of the proceedings by ensuring that, once a jury is lawfully
empaneled, the government must prove beyond a reasonable
doubt to a unanimous jury the facts necessary to sustain the
punishment it seeks.
Finally, amicus (rejoined now by the principal dissent,
see post, at 863–864 (opinion of Kavanaugh, J.)) directs us to
case law and statutes in four other States—South Carolina,
Louisiana, Alabama, and Kansas. After the Constitution's
adoption, amicus suggests, each of these States left “a wide
range of recidivism-related issues” for judges, rather than
jur ies, to resolve. Br ief for Cour t-Appoi nted Amicus
Curiae 18.
But what does this prove? Here again, amicus points to
procedures in less than a handful of States. That is not the
kind of “uniform postratifcation practice” that can some-
times “shed light upon the meaning ” of the Constitution.
Gaudin, 515 U. S., at 519. Nor, again, do these practices
prove much even taken on their own terms. Some of these
States permitted a judge to make “sequencing ” determina-
tions—deciding, for example, whether the present offense
was the defendant's “ `second or subsequent' ” offense. Brief
for Court-Appointed Amicus Curiae 14, and n. 1, 18–19.
6
Some allowed a judge to fnd whether the defendant had suc-
cessfully overturned a prior conviction on appeal or secured
6
See H. Toulmin, Digest of the Laws of the State of Alabama 209 (1823);
Ala. Penal Code § 73 (1866); 1859 Kan. Sess. Laws pp. 283–284; 1868 Kan.
Sess. Laws pp. 380–381; 6 D. McCord, Statutes at Large of South Carolina
413 (1839); State v. Smith, 8 Rich. 460 (SC 1832); U. Phillips, Revised Stat-
utes of Louisiana 155 (1856); 1870 La. Acts p. 206, § 4.
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846 ERLINGER
v. UNITED STATES
Opinion of the Court
a pardon. Id., at 19–20, and n. 4.
7
Some
authorized a judge
to fnd whether a defendant's current offense and past crime
occurred within a specifed period of time. Id., at 19.
8
All
told, amicus's evidence may suggest that in a small number
of jurisdictions judges could fnd the existence, number, and
dates of a defendant's prior convictions. But none of this
provides a persuasive basis for revisiting our many prece-
dents prohibiting judges from doing more. Let alone prove
“ `a longstanding tradition' ” in this Nation allowing a judge
to fnd any fact regarding a defendant's “recidivis[m].” Post,
at 855 (opinion of Kavanaugh, J.).
For that matter, it is not clear whether these four States
always allowed judges to fnd even the fact of a defendant's
prior conviction. Take South Carolina. In State v. Smith,
8 Rich. 460 (SC 1832), the court seemed to hold that the gov-
ernment did not have to allege in its indictment that the
defendant had been previously convicted “for the crime of
horse stealing ” because that was a question for “the Court,”
id., at 460–461. But, as another State's supreme court rec-
ognized, in so holding Smith may have gone “too far.” State
v. Burgett, 22 Ark. 323, 324 (1860). It is unclear, too,
whether Smith even accurately refected South Carolina's
customary prac tice. App rend i, 530 U. S., at 509, n. 5
(Thomas, J., concurring). Similar problems attend amicus's
reliance on historic Louisiana practices. In State v. Hudson,
32 La. Ann. 1052 (1880), the Louisiana Supreme Court held
that a jury did not “ha[ve] to pass” upon the existence of
“previous convictions.” Id., at 1053. But Louisiana “over-
ruled” Hudson three decades later, calling it out of step with
“the common law” and “other jurisdictions.” State v. Com-
pagno, 125 La. 669, 671–672, 51 So. 681, 682 (1910). Later
still, amicus contends, Louisiana revived Hudson in State v.
Guidry, 169 La. 215, 222, 124 So. 832, 835 (1929). See Brief
for Court-Appointed Amicus Curiae 14. But however that
7
See 1840 Ala. Sess. Laws 153; 1868 Kan. Sess. Laws pp. 380–381; State
v. Hudson, 32 La. Ann. 1052, 1053 (1880).
8
Toulmin, Digest of the Laws of the State of Alabama, at 377.

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as: 602 U. S. 821 (2024)
847
Opinion of the Court
may be, the historical practices in the four States amicus
h
ighlights do not appear to have been nearly as uniform or
expansive as he supposes.
D
Finally, amicus asks us to consider some practical prob-
lems. Most especially, he argues that leaving the occasions
inquiry to juries would do more to prejudice than protect
defendants. Id., at 41– 47. It would because requiring
prosecutors to prove that the defendant's prior crimes took
place on distinct occasions would enable them “to regale ju-
ries with the details” of the defendant's past misconduct.
Id., at 42; see also post, at 867–870 (opinion of Kavanaugh,
J.); post, at 889–893 (opinion of Jackson, J.).
But just as arguments from effciency cannot alter the de-
mands of the Fifth and Sixth Amendments, neither may that
practical concern, “of which earlier courts were well aware.”
Apprendi, 530 U. S., at 521 (Thomas, J., concurring). It is
hard not to wonder, too: Are we really to suppose that the
amici supporting Mr. Erlinger in this Court, including the
National Association of Criminal Defense Lawyers and the
National Association of Federal Defenders, have been “some-
how duped” into advocating for a rule that would be “unfair
to criminal defendants”? Blakely, 542 U. S., at 312; see also
NAFD Brief 25; Brief for National Association of Criminal
Defense Lawyers as Amicus Curiae 16–17.
Of course not. As these groups stress, and the govern-
ment agrees, traditional tools exist to address the prejudicial
effect evidence about a defendant's past crimes can have on
a jury. Most obviously, a court can bifurcate the proceed-
ings. In that “common,” Apprendi, 530 U. S., at 521, n. 10
(Thomas, J., concurring), and often “fairest” practice, Spen-
cer v. Texas, 385 U. S. 554, 567 (1967), a jury is frst tasked
with assessing whether the government has proved the ele-
ments of the § 922(g) felon-in-possession charge. Then, and
only if it fnds the defendant guilty, the jury turns to consider
evidence regarding whether the defendant's prior offenses
occurred on different occasions for purposes of applying
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848 ERLINGER
v. UNITED STATES
Opinion of the Court
ACCA's mandatory minimum sentence under § 924(e). Jus-
tice
Jackson expresses concern about the “burdens” pro-
ceeding this way might impose. See post, at 892. But by
sequencing and separating the jury's determinations, a court
decreases the l ikel ihood that a jury w i ll be “ `over per-
suade[d]' ” by the defendant's prior criminal conduct. Post,
at 893 (Jackson, J., dissenting) (quoting Michelson v. United
States, 335 U. S. 469, 476 (1948)).
On this, all sides agree. The government reports that it
“generally agree[s] to bifurcation” in ACCA cases like this
one and that it has not “been able to anticipate as to why
[it] wouldn't agree to bifurcation.” Tr. of Oral Arg. 58–59.
Similarly, the National Association of Federal Defenders
reports that, “[t]o [its] knowledge, every jury trial but one
has been bifurcated when the jury was permitted to decide
both the § 922(g) unlawful-frearm-possession question and
the § 924(e) `occasions' question.” NAFD Brief 26.
9
States
that “have not already done so can likewise adjust to any
state-law implications of [our] straightforward application of
Apprendi to . . . ACCA's different-occasions requirement.”
Reply Brief 21; see also Spencer, 385 U. S., at 586 (Warren,
C. J., concurring and dissenting) (observing that, whether or
not required to do so, at the time most States had adopted
“procedures which postpone the introduction of prior convic-
tions until after the jury has found the defendant guilty of
the crime currently charged”).
10
9
Of the trials where proceedings were bifurcated, the National Associa-
tion of Federal Defenders observes, some “have resulted in acquittal or
dismissal” at the frst stage where prejudicial past conduct was omitted;
another has resulted in acquittal at the second stage after the jury found
the government had not carried its burden of showing the defendant's
prior offenses were committed on separate occasions; three others “have
resulted in guilty verdicts” at both stages. NAFD Brief 21–22.
10
Once more parting ways with the parties and defense bar amici, Jus-
tice Jackson asserts that Apprendi's rule confning judges at sentencing
to the facts found by the jury hurts defendants and makes “racial dispari-
ties” in our criminal justice system “worse.” Post, at 886–887. As we
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as: 602 U. S. 821 (2024)
849
Roberts, C. J., concurring
*
T
he jury tr ia l may have “never been efficient. ” Ap-
prendi, 530 U. S., at 498 (Scalia, J., concurring). It may re-
quire assembling a group of the defendant's peers to resolve
unanimously even seemingly straightforward factual ques-
tions under a daunting reasonable doubt standard. Avoid-
ing the prejudice associated with the introduction of evi-
dence of past crimes may require careful attention, too. But
the right to a jury trial “has always been” an important part
of what keeps this Nation “free.” Ibid. Because the Fifth
and Sixth Amendments do not tolerate the denial of that
right in this case, the judgment of the Court of Appeals for
the Seventh Circuit is vacated, and the matter is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Chief Justice Roberts, concurring.
I join the opinion of the Court because I agree that under
the Fifth and Sixth Amendments, a defendant is entitled to
have seen, however, Apprendi allows judges to lower sentences based on
their own factual fndings; it only prohibits judges from using their own
facts to increase a defendant's exposure to punishment. See n. 1, supra.
As the defense bar amici are quick to point out, that helps defendants.
It seems, too, Justice Jackson has directed her fre at the wrong target.
The reports and law review article cited by Justice Jackson attribute
sentencing disparities to this Court's remedial decision in United States v.
Booker, 543 U. S. 220, 245–246 (2005), as well as various other factors:
judges, “prosecutors, law enforcement offcials, probation offcers . . . ,
overworked defense attorneys, and other actors involved in maintaining
the court system.” K. Klein & S. Klein, A Racially Biased Obstacle
Course: Apprendi Transformed the Federal Sentencing Guidelines into
a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities?,
99 N. C. L. Rev. 1391, 1405, 1423 (2021). And, unlike Justice Jackson,
the authors of the very article she cites “celebrate Apprendi” because, in
their view, it “unequivocally” gives a “bargaining chip” to defendants to
seek more favorable plea offers. Id., at 1399, and n. 33; see Blakely, 542
U. S., at 311–313.
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850 ERLINGER
v. UNITED STATES
Thomas, J., concurring
have a jury determine beyond a reasonable doubt whether
h
is predicate offenses were committed on different occasions
for purposes of the Armed Career Criminal Act. But as
Justice Kavanaugh explains, violations of that right are
subject to harmless error review. See post, at 859–861 (dis-
senting opinion). The Seventh Circuit should thus consider
on remand the Government's contention that the error here
was harmless.
Justice Thomas, concurring.
I join the Court's opinion in full because it correctly ap-
plies our precedents. The fact that a defendant's prior qual-
ifying offenses occurred on “occasions different from one an-
other” results in an increased punishment under the Armed
Career Criminal Act. 18 U. S. C. § 924(e)(1). The Sixth
Amendment therefore gives criminal defendants the right to
have a jury fnd that fact. See Apprendi v. New Jersey, 530
U. S. 466, 501 (2000) (Thomas, J., concurring) (“[A] `crime'
includes every fact that is by law a basis for imposing or
increasing punishment” (emphasis added)).
In Almendarez-Torres v. United States, 523 U. S. 224
(1998), the Court created a “narrow exception” to the Sixth
Amendment's general rule and allowed a judge to fnd “the
fact of a prior conviction,” even though that fact increases a
defendant's punishment, Alleyne v. United States, 570 U. S.
99, 111, n. 1 (2013). In this case, the Court acknowledges
the sharp confict between Almendarez-Torres and the Sixth
Amendment. Ante, at 837–838. And, it properly declines
to extend that dubious exception to the different-occasions
inquiry under § 924(e)(1). Ante, at 836–842.
I continue to adhere to my view that we should revisit
Almendarez-Torres and correct the “error to which I suc-
cumbed” by joining that decision. Apprendi, 530 U. S., at
520 (opinion of Thomas, J.); see also Sessions v. Dimaya, 584
U. S. 148, 226 (2018) (Thomas, J., dissenting); Mathis v.
United States, 579 U. S. 500, 522 (2016) (Thomas, J., con-
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as: 602 U. S. 821 (2024)
851
Kavanaugh, J., dissenting
curring); Descamps v. United States, 570 U. S. 254, 280–281
(2013)
(Thomas, J., concurring in judgment); Rangel-Reyes
v. United States, 547 U. S. 1200, 1202 (2006) (Thomas, J.,
dissenting from denial of certiorari); Shepard v. Uni ted
States, 544 U. S. 13, 27–28 (2005) (Thomas, J., concurring in
part and concurring in judgment). We need not overrule
Almendarez-Torres to rule in Erlinger's favor, and he did
not ask us to reconsider the decision—although he agrees
that it should be overruled. Tr. of Oral Arg. 5. But, we
have no shortage of other cases. Each Term, criminal de-
fendants fle a food of petitions “specifcally presenting this
Court with opportunities to reconsider Almendarez-Torres.”
Rangel-Reyes, 547 U. S., at 1202 (opinion of Thomas, J.).
Today's decision demonstrates further that “[i]t is time for
this Court to do its part” by granting one of those many
petiti ons and overr u ling Almendarez-To r res. Rangel-
Reyes, 547 U. S., at 1202.
Justice Kavanaugh, with whom Justice Alito joins,
and with whom Justice Jackson joins except as to Part
III, dissenting.
To prevent and punish violent crime committed with fre-
arms, Congress has enacted numerous federal laws—most
notably the National Firearms Act of 1934, the Gun Control
Act of 1968, and the Armed Career Criminal Act of 1984.
This case concerns the Armed Career Criminal Act.
As relevant here, ACCA imposes a minimum sentence on
a defendant who previously was convicted of at least three
violent felonies committed on different occasions—and who
then, after the three prior violent felony convictions, unlaw-
fully possessed a frearm. In applying ACCA's minimum
sentencing requirement, the Sixth Amendment allows a
judge to determine whether the defendant has three or more
prior convictions and whether those convictions were for vio-
lent felonies. The question in this case is whether the judge
may also determine whether the defendant committed those
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852 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
prior crimes on different occasions, or instead whether a jury
must
do so.
In my view, this Court's precedents establish that a judge
may make the different-occasions determination. Because
the Court today concludes that only a jury may make the
different-occasions determination, I respectfully dissent.
I
Paul Erlinger has been convicted of at least 9 felonies, in-
cluding at least 7 burglaries. Under federal law, he there-
fore may not possess a frearm. See 18 U. S. C. § 922(g)(1).
As a multiple-time convicted felon, Erlinger would have re-
ceived repeated notice that he could not legally possess any
frearms. Yet in 2017, the police received a tip that Erlinger
had recently violated that federal law and purchased a gun.
Pursuant to a search warrant, offcers searched his home and
found 20 guns—16 long guns and 4 handguns—and ammuni-
tion to go with them. Erlinger pled guilty to possessing a
frearm as a felon, in violation of § 922(g).
At sentencing, the Government argued that the Armed
Career Criminal Act mandated a minimum prison sentence
because Erlinger had previously been convicted of at least
three violent felonies committed on different occasions. The
Government presented the charging documents and plea
agreement for three offenses that Erlinger committed in
1991: (i) an April 4 burglary of a pizza restaurant; (ii) an
April 8 burglary of a sporting-goods store; and (iii) an April
11 burglary of another restaurant. The U. S. District Court
for the Southern District of Indiana determined that Er-
linger had been convicted of each of those burglaries, and
that those offenses qualifed as violent felonies. Erlinger
did not question the judge's authority to make those determi-
nations. The District Court then concluded that Erlinger
committed the three burglaries on “occasions different from
one another.” § 924(e)(1).
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as: 602 U. S. 821 (2024)
853
Kavanaugh, J., dissenting
On appeal, despite accepting the District Court's authority
to
determine whether he was convicted of the three prior
violent felonies, Erlinger argued that the Sixth Amendment
required a jury, not a judge, to determine whether he com-
mitted the felonies on different occasions. That was not a
promising argument. Like all 11 other Courts of Appeals
that handle federal criminal cases, the U. S. Court of Appeals
for the Seventh Circuit had previously ruled that a judge
may determine whether a defendant's prior felonies were
committed on different occasions. Adhering to that Circuit
precedent, the Seventh Circuit therefore rejected Erlinger's
argument. 77 F. 4th 617, 621–622 (2023) (citing United
States v. Elliott, 703 F. 3d 378, 382 (2012)).
The Court today, however, rejects the unanimous conclu-
sion of the 12 Courts of Appeals. The Court holds that
a jury must deter mine whether a defendant committed
his prior felonies on different occasions. I respectfully
disagree.
II
The Sixth Amendment guarantees criminal defendants the
right to a “trial” by an “impartial jury.” Relying on text
and history, this Court's precedents have interpreted the
Sixth Amendment to draw a clear line between (i) the facts
about the present crime that a jury must decide at trial and
(ii) the facts about past crimes that a judge may determine
at sentencing.
In a series of cases that began with Apprendi v. New Jer-
sey, the Court has held that a jury must fnd facts about a
defendant's present offense that alter the crime's maximum
or minimum possible sentence. 530 U. S. 466, 490 (2000).
But Apprendi and this Court's subsequent cases have not
disturbed the longstanding sentencing rule that this Court
recognized two years earlier in Almendarez-Torres v. United
States: Judges may resolve questions about a defendant's
past crimes—questions of recidivism—that are relevant not
to the defendant's guilt for the present offense but rather to
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854 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
the length of the defendant's sentence. 523 U. S. 224, 239,
247
(1998).
A
This Court's opinion in Almendarez-Torres resolves the
question of whether a judge may decide if the defendant com-
mitted his prior violent offenses on different occasions. In
that case, the Court squarely held that either a judge or a
jury may apply sentence enhancements based on “recidi-
vism.” Id., at 247.
Almendarez-Torres involved a statute that made it a crime
for a deported noncitizen to illegally reenter the United
States. Id., at 229. The maximum sentence for that crime
was 2 years. Ibid. But if the noncitizen had been con-
victed of certain aggravated felonies before he was deported,
the maximum sentence for illegal reentry increased to 20
years. Ibid.
Almendarez-Torres argued that the Constitution required
“Congress to treat recidivism as an element of the offense.”
Id., at 239. If so, the Government would have to prove to a
jury beyond a reasonable doubt that Almendarez-Torres had
been convicted of an aggravated felony before his deporta-
tion. Ibid. This Court rejected that argument. Id., at
247. Recidivism, the Court stated, “is a traditional, if not
the most traditional, basis for a sentencing court's increasing
an offender's sentence.” Id., at 243. It is not an element of
the present crime of illegal reentry. Id., at 247; see also
Jones v. United States, 526 U. S. 227, 249 (1999); Graham v.
West Virginia, 224 U. S. 616, 629 (1912).
The Court explained that the Federal and State Govern-
ments have long taken different approaches to applying
recidivism sentencing enhancements. Almendarez-Torres,
523 U. S., at 246. Some provide a jury trial. Ibid. Others
assign recidivism enhancements to the sentencing judge.
Ibid.
Given the absence of any “uniform” “tradition,” the Court
concluded that the choice between those methods was left to
the Legislature, not governed by “a federal constitutional
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as: 602 U. S. 821 (2024)
855
Kavanaugh, J., dissenting
guarantee.” Id., at 246–247. To hold “that the Constitu-
ti
on requires that recidivism be deemed an `element' of peti-
tioner's offense would mark an abrupt departure from a long-
standing tradition” where a judge or a jury could determine
that a defendant is a recidivist. Id., at 244.
Importantly, that tradition of allowing judges to apply re-
cidivism sentencing enhancements developed so as to avoid
signifcant prejudice to criminal defendants. If the jury had
to determine recidivism, the jury would hear highly prejudi-
cial evidence about a defendant's past criminal offenses at
the trial for the present crime. Id., at 235.
In short, in Almendarez-Torres the Court held that the
Legislature can decide how it wants recidivism enhancements
to be applied—by a judge or by a jury. Id., at 246–247.
ACCA mandates a minimum sentence if the defendant had
three prior convictions for violent felonies committed on
di fferent occasi ons. Er l i nger does not dispute that
Almendarez-Torres allows a judge to determine whether Er-
linger had three prior convictions for violent felonies. The
narrow question here is whether Almendarez-Torres also
allows a judge to determine whether Erlinger's three prior
offenses were committed on different occasions.
I would conclude that Almendarez-Torres also applies to
the different-occasions inquiry. Under Almendarez-Torres,
legislatures may assign to judges the task of fnding facts
related to a defendant's past crimes—that is, to his “re-
cidivism. ” Id., at 239. That principle encompasses the
different-occasions inquiry.
After all, the enhancement in Almendarez-Torres applied
when “the defendant was previously deported subsequent to
a conviction for commission of an aggravated felony.” Id.,
at 235 (quotation marks omitted). To apply that enhance-
ment, a judge had to fnd the date on which the defendant
was convicted of the aggravated felony. The judge had to
fnd that the defendant in fact was the person who had com-
mitted the aggravated felony. And the judge had to fnd
that the defendant had been deported after that date.
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856 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
Like the statute in Almendarez-Torres, recidivism stat-
utes
often require a decisionmaker to determine the who,
what, when, and where of prior offenses. The Almendarez-
Torres Court had no diffculty concluding that Congress
could authorize judges to make the factual fndings necessary
to apply the recidivism enhancement. Id., at 246. To the
extent that Almendarez-Torres left any doubt on that score,
this Court recognized the case's “precise holding ” the follow-
ing year: The “distinctive signifcance of recidivism” distin-
guishes it from elements of the present crime. Jones, 526
U. S., at 248 –249. Almendarez-Tor res thus means that
judges can make all recidivism determinations at sentencing.
Only that rule can explain this Court's cases allowing judges
to fnd recidivism-related facts. See, e. g., McNeill v. United
States, 563 U. S. 816, 820, 824 (2011); Shepard v. United
States, 544 U. S. 13, 20–21 (2005).
ACCA's different-occasions requirement similarly requires
the judge to fnd the when and where of a defendant's prior
criminal acts. Therefore, under Almendarez-Torres, judges
may make the different-occasions determination. Given the
Court's opinion in Almendarez-Torres, it comes as no sur-
prise that all 12 Courts of Appeals have concluded that
judges may make the different-occasions determination.
See United States v. Ivery, 427 F. 3d 69, 74–75 (CA1 2005);
United States v. Santiago, 268 F. 3d 151, 156 (CA2 2001);
United States v. Blair, 734 F. 3d 218, 227–228 (CA3 2013);
United States v. Brown, 67 F. 4th 200, 201 (CA4 2023);
United States v. Davis, 487 F. 3d 282, 288 (CA5 2007); United
States v. Burgin, 388 F. 3d 177, 186 (CA6 2004); United States
v. Elliott, 703 F. 3d 378, 381–383 (CA7 2012); United States
v. Harris, 794 F. 3d 885, 887 (CA8 2015); United States v.
Walker, 953 F. 3d 577, 580–582 (CA9 2020); United States v.
Harris, 447 F. 3d 1300, 1304 (CA10 2006); United States v.
Weeks, 711 F. 3d 1255, 1259 (CA11 2013); United States v.
Thomas, 572 F. 3d 945, 952, n. 4 (CADC 2009).
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857
Kavanaugh, J., dissenting
B
In
concluding that Almendarez-Torres does not authorize
judges to make the different-occasions determination, the
Court says that subsequent decisions of this Court have “ex-
pressly delimited” the reach of Almendarez-Torres. Ante,
at 838, and n. 2 (citing United States v. Haymond, 588 U. S.
634, 644, n. 3 (2019) (plurality opinion); Mathis v. United
States, 579 U. S. 500, 511–512 (2016); Descamps v. United
States, 570 U. S. 254, 269 (2013); Alleyne v. United States,
570 U. S. 99, 111, n. 1 (2013); Cunningham v. California, 549
U. S. 270, 282 (2007); Shepard, 544 U. S., at 24 (plurality opin-
ion); Blakely v. Washington, 542 U. S. 296, 301 (2004); Ap-
prendi, 530 U. S., at 490).
But the cases cited by the Court do not support its claim
that Almendarez-Torres has been cabined, at least not in a
way that wou ld require a jury to make the di fferent-
occasions fnding.
Many of those cited cases did not involve recidivism.
Both Alleyne v. United States and Apprendi v. New Jersey
addressed the present crime, not prior crimes. 570 U. S.,
at 104; 530 U. S., at 468 – 469. Neither case rev isited
Almendarez-Torres's analysis of the distinctive history of re-
cidivism sentencing enhancements for prior offenses. In-
deed, both Alleyne and Apprendi expressly declined to “re-
visit” Almendarez-Torres. 570 U. S., at 111, n. 1; 530 U. S.,
at 490. And in analyzing Almendarez-Torres, Apprendi
drew a clear line between facts about prior crimes and facts
about present crimes. 530 U. S., at 488. Apprendi said as
much multiple times. Id., at 474, 488–489, and n. 14, 496.
1
1
The other constitutional cases that the Court cites similarly did not
involve recidivism. See United States v. Haymond, 588 U. S. 634, 645–
646 (2019) (plurality opinion) (“additional conduct in violation of ” the de-
fendant's supervised release); Cunningham v. California, 549 U. S. 270,
275 (2007) (facts about the defendant's “violent conduct” in committing the
charged crime); Blakely v. Washington, 542 U. S. 296, 298 (2004) (defend-
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858 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
The other cases cited by the Court did not even involve a
constituti
onal claim. In Mathis v. United States and Des-
camps v. United States, the Court interpreted the text of
ACCA in order to determine whether a prior conviction con-
stituted a “violent felony.” 579 U. S., at 503 (quotation
marks omitted); 570 U. S., at 257 (same); see also Shepard,
544 U. S., at 15–16, 19. To be sure, the Court said that its
interpretation of ACCA avoided “Sixth Amendment con-
cerns.” Mathis, 579 U. S., at 511; Descamps, 570 U. S., at
267. But neither case purported to articulate any Sixth
Amendment holding.
Importantly, constitutional avoidance “is not a method of
adjudicating constituti ona l questi ons by other means. ”
Clark v. Martinez, 543 U. S. 371, 381 (2005). When the
Court fags potential constitutional concerns in a statutory
case, that is a far cry from the Court's defnitively resolv-
ing the potential constitutional issue, let alone altering
prev i ously bi ndi ng constituti ona l precedent. A pr i or
constitutional-avoidance holding does not absolve the Court
of the duty to address the constitutional issue head-on when
it is later presented to the Court. The Court's decision
today mistakenly elevates constitutional-avoidance holdings
to constitutional holdings.
Almendarez-Tor res said what it said: The Constitution
does not require a jury to make recidivism determinations.
And no subsequent case of this Court has cabined the holding
of Almendarez-Tor res. By distinguishing the different-
occasions issue from the other facts about prior crimes,
today's decisi on mist akenly crosses the clear l i ne that
Almendarez-Torres and Apprendi drew between facts about
the present offense and facts about prior offenses.
2
ant acted with “deliberate cruelty” in committing the charged crime (quo-
tation marks omitted)).
2
Unlike the Court's interpretation of ACCA in cases like Mathis and
Descamps, moreover, the Court's new constitutional rule will apply not
only to federal cases, but also to state cases. Several States have recidi-
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as: 602 U. S. 821 (2024)
859
Kavanaugh, J., dissenting
III
E
ven accepting the Court's interpretation of the Sixth
Amendment as to the different-occasions issue, Erlinger's
sentence should be affrmed. As the Government says, any
error was harmless. Tr. of Oral Arg. 45.
This Court has long ruled that most constitutional errors,
including Sixth Amendment errors, “can be harmless.”
Washington v. Recuenco, 548 U. S. 212, 218 (2006) (quotation
marks omitted). The harmless-error rule serves an impor-
tant purpose. It ensures that appellate courts do not set
aside convictions or sentences “for small errors or defects
that have little, if any, likelihood of having changed the re-
sult.” Neder v. United States, 527 U. S. 1, 19 (1999) (quota-
tion marks omitted). So if a constitutional error is harmless
“beyond a reasonable doubt,” the defendant's conviction and
sentence should be affrmed. Id., at 18.
The harmless-error rule will likely ameliorate some of the
short-term problems that today's decision otherwise would
cause. In any case that has not become fnal, the relevant
appellate court can apply harmless-error analysis.
3
In most (if not all) cases, the fact that a judge rather than
a jury applied ACCA's different-occasions requirement will
be harmless. Whether prior felonies occurred on different
occasions under ACCA is usually a straightforward question.
As this Court succinctly stated in Wooden, courts “have
vism enhancements that require judges to fnd whether the defendant
committed prior crimes on different occasions. See, e. g., 42 Pa. Cons.
Stat. § 9714(a)(2) (2019); R. I. Gen. Laws § 12–19–21 (2002). Those state
courts, like the federal courts, have long relied on Almendarez-Torres to
hold that judges may make that different-occasions determination. See,
e. g., Commonwealth v. Gordon, 596 Pa. 231, 251, and n. 16, 942 A. 2d 174,
186, and n. 16 (2007); State v. Ramirez, 936 A. 2d 1254, 1269 (R. I. 2007).
Those courts, too, will be surprised by today's new rule.
3
For any case that is already fnal, the Teague rule will presumably bar
the defendant from raising today's new rule in collateral proceedings.
See Edwards v. Vannoy, 593 U. S. 255, 258 (2021); Teague v. Lane, 489
U. S. 288, 310 (1989) (plurality opinion).
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860 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
nearly always treated offenses as occurring on separate occa-
si
ons if a person committed them a day or more apart, or at
a signifcant distance.” Wooden v. United States, 595 U. S.
360, 370 (2022) (quotation marks omitted). So in cases like
this where undisputed facts establish that the defendant's
prior crimes occurred a day or more apart, it will usually be
evident beyond a reasonable doubt that the failure to submit
the different-occasions question to the jury had no effect on
the defendant's sentence.
4
This case is a good example. There can be no reasonable
doubt that Erlinger committed three burglaries “on occa-
sions different from one another.” 18 U. S. C. § 924(e)(1).
Erlinger burglarized three separate businesses, and each
burglary occurred several days apart from the other two.
His crimes had different victims, different dates, and differ-
ent locations. And when offered the opportunity to dispute
the District Court's conclusion that he committed the three
burglaries on different occasions, “Erlinger supplied no ar-
gument or evidence that would cast doubt” on the District
Court's analysis. 77 F. 4th, at 622.
In this Court, Erlinger's argument on harmless error was
not much more enlightening. When asked whether he had
“a viable argument” against harmless error, Erlinger re-
sponded that he could “imagine somebody” who might. Tr.
of Oral Arg. 25. For example, Erlinger hypothesized that
someone might commit a string of burglaries several days
apart to pay a single gambling debt. Ibid. Of course, Er-
linger did not argue that he actually ft that description.
And regardless, no “rational jury” could think that separate
burglaries days apart in different places collapse into one
occasion simply because the defendant committed the bur-
glaries to pay a single debt. Neder, 527 U. S., at 18.
4
Going forward, I assume that the Wooden statement about offenses
committed a day or more apart or at a signifcant distance will inform the
content of jury instructions.
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as: 602 U. S. 821 (2024)
861
Kavanaugh, J., dissenting
For those reasons, I would hold that any Sixth Amend-
ment
error in this case was harmless. I recognize that this
Court often leaves harmless-error questions to the Court of
Appeals when the issue was not addressed below. See id.,
at 25. But that is because harmless-error questions some-
times are fact-intensive and require painstaking analysis of
a large record. Here, the relevant facts are simple and un-
disputed: Erlinger committed three burglaries of three dif-
ferent businesses on three different days, with several days
separating each burglary. I would resolve the harmless-
error issue in this case now rather than subjecting the par-
ties to a pointless remand to the Court of Appeals and an-
other round of briefng and argument, when the Court of
Appeals' decision is a foregone conclusion. The Court de-
clines to do so. But the harmless-error analysis will be
straightforward for the Court of Appeals on remand.
IV
The Court today has not overruled Almendarez-Torres; it
has simply carved out the different-occasions inquiry from
the general Almendarez-Torres rule. But Justice Thomas
has written separately to advocate overruling Almendarez-
Torres altogether. Ante, at 851 (concurring opinion). And
Erlinger agreed that “the Court should someday” overrule
that precedent. Tr. of Oral Arg. 5.
Apply i ng the traditi ona l stare dec isis fac tors, I am
strongly opposed to overruling Almendarez-Torres.
The principle of stare decisis is encompassed within the
“judicial Power” of Article III of the Constitution. Stare
decisis “promotes the evenhanded, predictable, and consist-
ent development of legal principles, fosters reliance on judi-
cial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501
U. S. 808, 827 (1991). Of course, adherence to constitutional
precedent is not and should not be absolute. See Ramos
v. Louisiana, 590 U. S. 83, 116–117 (2020) (Kavanaugh, J.,
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v. UNITED STATES
Kavanaugh, J., dissenting
concurring in part). But the Court requires a “special jus-
ti
fcation” or “strong grounds” before revisiting a settled
holding. Id., at 120 (quotation marks omitted). That re-
quirement “disciplines jurisprudential disagreement.” A.
Barrett, Precedent and Jurisprudential Disagreement, 91
Texas L. Rev. 1711, 1722 (2013).
In general, when considering whether to overrule a consti-
tutional precedent, the Court analyzes a variety of factors
that often boil down to three basic questions. First, “is the
prior decision not just wrong, but grievously or egregiously
wrong?” Ramos, 590 U. S., at 121 (Kavanaugh, J., con-
curring in part). Second, “has the prior decision caused
significant negative jurisprudential or real-world conse-
quences?” Id., at 122. And third, “would overruling the
prior decision unduly upset reliance interests?” Ibid.
Overruling Almendarez-Torres would require running the
table on all three. As I see it, however, the argument for
overruling Almendarez-Torres does not satisfy any of the
three requirements.
A
On the merits, I believe that Almendarez-Torres is correct
in light of text and history. But even if one thinks that the
case is wrong, it certainly is not egregiously wrong.
The Sixth Amendment textually guarantees the right to a
jury trial, but its text does not specify all that the right en-
tails. Instead, to defne the jury right, the Court has looked
to the common law, state practices in the founding era, opin-
ions and treatises written soon afterward, and this Nation's
historical tradition. See Ramos, 590 U. S., at 90. When
those sources supply a clear answer, we can conclude that a
rule is part of the jury right enshrined in the Sixth Amend-
ment and therefore cannot be changed by the legislature.
See id., at 90–92.
No settled historical practice or understanding establishes
that a jury, rather than a judge, must determine for sentenc-
ing purposes whether a defendant is a recidivist.
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863
Kavanaugh, J., dissenting
Statutes that enhance repeat offenders' sentences “have a
long
tradition in this country that dates back to colonial
times.” Parke v. Raley, 506 U. S. 20, 26 (1992). Given the
prevalence of those statutes, if there were a legal consensus
that a jury had to determine a defendant's recidivism, we
should be able to easily locate that consensus in the States'
laws. After all, as the Court reminds us, every state consti-
tution ratifed in the aftermath of the Revolution guaranteed
a right to a trial by jury. Ante, at 829–830. Those state
constitutional rights are analogous to the right guaranteed
by the Sixth Amendment.
But the States have traditionally used a “wide variety of
methods of dealing with” recidivism enhancements. Spen-
cer v. Texas, 385 U. S. 554, 566 (1967); see also Almendarez-
Torres v. United States, 523 U. S. 224, 246–247 (1998). And
some States have long given judges the responsibility to fnd
the facts necessary to apply a recidivism sentencing enhance-
ment for past crimes. States have done so to avoid the prej-
udice to the defendant that would result from telling the jury
about the defendant's prior crimes.
One example is South Carolina. There, in the 1830s, the
State had a steep recidivism enhancement for horse thieves.
State v. Smith, 8 Rich. 460 (S. C. 1832). The “Court, not the
jury” decided whether the enhancement applied. Id., at 461;
see also State v. Allen, 8 Rich. 448, 449 (S. C. 1832); State v.
Parris, 89 S. C. 140, 141, 71 S. E. 808, 809 (1911).
Louisiana similarly recognized that facts about recidivism
“were not essential ingredients constituting the offense
charged, upon which the jury had to pass.” State v. Hud-
son, 32 La. 1052, 1053 (1880). As the Supreme Court of Lou-
isiana later explained, there “is no provision in the Constitu-
tion that we have been able to fnd which authorizes or
requires questions of fact not pertaining to the guilt or inno-
cence of a defendant to be submitted to a jury.” State v.
Guidry, 169 La. 215, 224, 124 So. 832, 835 (1929). Instead,
the court held that the Louisiana Legislature could decide

864 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
whether a judge or a jury should apply the recidivism sen-
tenci
ng enhancement.
So did Alabama. See Yates v. State, 245 Ala. 490, 492, 17
So. 2d 777, 779 (1944) (It is “discretionary with the trial judge
whether to impose additional punishment and to make in-
quiry into that question in a supplementary manner in order
to apply the increased limits”).
And Kansas. See State v. Woodman, 127 Kan. 166, 172,
272 P. 132, 134 (1928) (“In this state it is no concern of the
jury” whether a recidivism enhancement applies); see also
Chance v. State, 195 Kan. 711, 715, 408 P. 2d 677, 681 (1965)
(“It has never been the rule in Kansas” that recidivism has
to be treated as an element of a crime (quotation marks omit-
ted)); see also 1868 Kan. Sess. Laws pp. 380–381 (recidivism
enhancement).
The variation in early American practice forecloses the ar-
gument that the right to have a jury apply recidivism en-
hancements was traditionally understood as an inherent part
of the Sixth Amendment right to trial by jury.
5
Another common practice in the early 1800s confrms that
legislatures could choose how to handle recidivism issues.
Early state constitutions required the government to include
the elements of an offense in an indictment. See, e. g., Jones
v. Robbins, 74 Mass. 329, 347, 350 (1857). The prosecution
also had to prove elements of the offense beyond a reason-
able doubt, as the requirements for an indictment and a jury
trial went hand in hand. Commonwealth v. McKie, 67 Mass.
61, 62 (1854).
5
A different constitutional rule applies if the defendant's status as a
felon is an element of the present offense necessary to make the conduct
criminal in the frst place, as with the prohibition on possessing a fre-
arm as a felon. See 18 U. S. C. § 922(g)(1); Rehaif v. United States,
588 U. S. 225, 229–230 (2019). The issue here, by contrast, is the use of
past offenses to enhance the sentence for the present offense of
conviction.
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865
Kavanaugh, J., dissenting
But many States, including Massachusetts and Virginia,
did
not include the facts about past crimes in an indictment—
in other words, did not treat recidivism as an element of the
offense. See 1818 Mass. Acts pp. 603–604; 1819 Va. Acts ch.
171, pp. 619–620; 1824 Me. Laws p. 1009; 1868 W. Va. Acts
ch. 165, pp. 733–734. Those States allowed the government
to raise and prove recidivism after the defendant had been
convicted of the present crime. Those States' practices re-
fected and reinforced the familiar line between a conviction
for the present offense and a sentencing enhancement based
on past offenses.
State courts upheld that practice against constitutional
challenges. In 1824, the Massachusetts Supreme Judicial
Court held that even if the recidivism enhancement would
have been included in the original indictment “at common
law,” the “legislature had” the power to change that default
rule. In re Ross, 19 Mass. 165, 171; see also State v. Gra-
ham, 68 W. Va. 248, 251, 69 S. E. 1010, 1011 (1910) (The West
Virginia recidivism statute “is not contrary to any constitu-
tional provision”).
Importantly, this Court upheld that practice as well. In
Graham v. West Virginia, the Court reasoned that although
“the State may properly provide for the allegation of the
former conviction in the indictment,” there was “no constitu-
tional mandate” to do so. 224 U. S. 616, 629 (1912).
In short, the historical evidence reveals a “spectrum of
state procedures” for applying recidivism-based sentence en-
hancements. Spencer, 385 U. S., at 566. America has a
long tradition of legislative discretion over whether a judge
or jury will apply recidivism sentencing enhancements.
6
6
Throughout much of American history, criminal sentencing at both the
state and federal levels has often been done by judges in systems where
the judges have discretion to sentence within broad ranges. And in those
discretionary-sentencing systems, judges routinely determine the facts of
a defendant's prior convictions and take account of a defendant's criminal

866 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
The different state approaches did not pop up by accident.
The
States had good reason to experiment with different
approaches to recidivism enhancements. Why? Requiring
the Government to present evidence of a defendant's past
crimes to a jury at trial would undermine the right to trial
“by an impartial jury” that the Sixth Amendment protects.
As this Court “has long recognized, the introduction of
evidence of a defendant's prior crimes risks signifcant preju-
dice.” Almendarez-Torres, 523 U. S., at 235. That kind of
prior-crimes evidence “is said to weigh too much with the
jury and to so overpersuade them as to prejudge one with a
bad general record and deny him a fair opportunity to defend
against a particular charge.” Michelson v. United States,
335 U. S. 469, 476 (1948). To avoid that problem, American
evidence laws have long restricted the use of prior-crimes
evidence. See 1 J. Wigmore, Evidence §§ 193–194, pp. 231–
235 (1904); Fed. Rule Evid. 404(b)(1).
What good would that longstanding evidence principle be
if the jury always had to apply recidivism enhancements?
The price of having a jury apply recidivism sentencing en-
hancements would be the loss of a protection against prejudi-
cial evidence that itself is deeply entrenched in American
law. To avoid making defendants pay that price, some legis-
latures have long given judges the responsibility of applying
sentence enhancements—while reserving to juries the duty
to fairly decide the defendant's guilt for the present crime.
See, e. g., Hudson, 32 La., at 1053 (A judge may determine
“previous convictions” because that information “might prej-
udice the jury”); Woodman, 127 Kan., at 172, 272 P., at 134–
135 (“the jurors' minds should not be diverted from the ques-
tion of defendant's innocence or guilt by facts concerning
defendant's prior convictions of other felonies,” and it “is also
fairer to defendant to keep such matters entirely away from
the jury”); see also D. Sidikman, Note, The Pleading and
record in imposing a sentence within the broad sentencing range author-
ized by statute.
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867
Kavanaugh, J., dissenting
Proof of Prior Convictions in Habitual Criminal Prosecu-
ti
ons, 33 N. Y. U. L. Rev. 210, 215 (1958) (allowing judges to
apply recidivism enhancements ensures that the “jury trial
as to the charged offense is conducted in a nonprejudicial
atmosphere”). The distinctive tradition that governs recidi-
vism enhancements for past offenses has traditionally co-
existed with the general right to a jury trial for present
offenses.
To sum up: Since the early 1800s, some legislatures have
entrusted recidivism sentencing fndings to judges, and oth-
ers have required juries to make those fndings. That varia-
tion refects the many countervailing interests that legisla-
tures must balance on this issue—including the prejudice
that results from telling a jury about a defendant's past crim-
inal behavior. And that unsurprising variation makes clear
that Almendarez-Torres was and remains correct. The
Sixth Amendment allows a judge to determine whether the
defendant should receive a recidivism sentencing enhance-
ment. At a minimum, the history shows that Almendarez-
Torres is not egregiously wrong.
B
Suppose, however, that one th inks that Almendarez-
Torres is wrong, even egregiously wrong. Even then, the two
other stare decisis factors—consequences and reliance inter-
ests—strongly counsel in favor of adhering to Almendarez-
Torres rather than overruling it.
First, Almendarez-Torres has not generated the kind of
negative real-world or jurisprudential consequences that
would support an overruling. By allowing judges to apply
recidivism enhancements, Almendarez-Torres has ensured
that defendants need not choose between (i) their right to a
jury trial and (ii) their interest in keeping the details of past
crimes from a jury.
Consider the pre judice that overr u l ing Almendarez-
Torres would cause if a jury had to decide whether defendants
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868 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
are eligible for every state and federal recidivism sentencing
enhancement.
As happened in one recent federal trial, the
jury could hear a prosecutor's closing argument begin: “La-
dies and gentlemen of the jury, this defendant, a gun toting,
drug slinging three time convicted felon . . . .” United
States v. Harrell, No. 1:22–cr–20245 (SD Fla., Mar. 6, 2023),
ECF Doc. 105, p. 33. The verdict in that case? Guilty.
Erlinger suggests that trial courts could avoid putting de-
fendants to the choice between prejudicing the jury and hav-
ing to forgo a jury trial by bifurcating the trial. Bifurcating
entails holding a separate mini-trial with the jury on the re-
cidivism enhancement after the jury has found the defendant
guilty of a crime.
But most criminal cases are tried in state court. And
States remain free not to bifurcate (as do federal judges, for
that matter). Bifurcated trials have been and remain “rare
in our jurisprudence; they have never been compelled by this
Court as a matter of constitutional law, or even as a matter
of federal procedure.” Spencer, 385 U. S., at 568. Instead,
the trial court ordinarily has discretion to decide whether to
bifurcate, and bifurcation carries “its own costs.” United
States v. Durham, 655 F. Supp. 3d 598, 615 (WD Ky. 2023).
In order for overruling Almendarez-Torres to help defend-
ants instead of hurting many of them, this Court would have
to say as a matter of constitutional law that all 50 States and
the federal courts must hold bifurcated trials in recidivism
cases. Of course, that would require overruling Spencer,
385 U. S., at 568–569. I doubt that the Court would go to
that extreme. So if Almendarez-Torres were overruled, a
defendant who is denied a bifurcated trial could be subject
to all of the harm and prejudice that results from telling a
jury about the defendant's past crimes.
7
7
If a State does not provide for bifurcation, a defendant's only path to
avoid the prejudice from the prosecutor's parading evidence of the defend-
ant's past crimes before the jury may be to seek the best plea deal possible
and plead guilty—hardly a benefcial result for defendants.
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as: 602 U. S. 821 (2024)
869
Kavanaugh, J., dissenting
Erlinger also suggests that, to avoid prejudice, defendants
can
stipulate to the relevant facts about their prior crimes.
Brief for Petitioner 41. But that of course makes sense only
in cases where the defendant is not disputing the recidivism
enhancement. Stipulation is obviously not a solution for
those cases where the defendant is contesting his prior con-
victions and the recidivism enhancement.
In any event, it is true that this Court has interpreted
the Federal Rules of Evidence to require the Government to
accept a defendant's stipulation that he has a prior convic-
tion. Old Chief v. United States, 519 U. S. 172, 191–192
(1997). But even under the Federal Rules as interpreted in
Old Chief, the jury will still hear the stipulation—for exam-
ple, that the defendant admits that he committed prior
felonies.
And to reiterate, most criminal cases are tried in state
court. This Court's interpretation of the Federal Rules of
Evidence does not require state courts to follow suit when
they interpret state rules of evidence. See, e. g., State v.
Ball, 99–0428, p. 5 (La. 11/30/99), 756 So. 2d 275, 278 (“We
conclude that Old Chief is not controlling and decline to fol-
low it”); Commonwealth v. Jemison, 626 Pa. 489, 502, 98
A. 3d 1254, 1261–1262 (2014).
Moreover, defendants will suffer that prejudicial harm for
little beneft. Determining whether the defendant has a
prior conviction for a particular offense will generally yield
an obvious answer from the record (or lack thereof ) of the
prior conviction. Important as the judgment of the jury
usually is, I struggle to imagine a jury making a different
(or at least a more accurate) fnding than a judge on the ques-
tion of whether a defendant was previously convicted of a
crime.
8
As explained above, this case is a prime example.
8
To be clear, in a recidivism proceeding (whether at trial or sentencing),
a defendant ordinarily cannot challenge the underlying validity of the
prior conviction—for example, by arguing that the prior conviction was
infected by error. See Parke v. Raley, 506 U. S. 20, 29–30 (1992). Chal-

870 ERLINGER
v. UNITED STATES
Kavanaugh, J., dissenting
And even if one could stretch the imagination far enough to
conceive
of a case in which sending the prior-conviction issue
to the jury makes a difference and produces a more accurate
answer, it would certainly not be a suffciently frequent oc-
currence to create a pressing need to overrule precedent.
Nor has Almendarez-Torres caused any jurisprudential
confusion. Erlinger suggests that the logic of Apprendi un-
dermines Almendarez-Torres. But Apprendi itself recon-
ciled the two cases. In ruling the way that it did on present
crimes, Apprendi explained at length why Almendarez-
Torres raised a distinct issue about past crimes.
That l i ne —between the present cr i me and the past
crimes—is clear and has been eminently workable. For sen-
tencing purposes, a judge can fnd that a defendant was con-
victed of past crimes, including the who, what, when, and
where of those crimes. It is as easy as that. The Apprendi
rule and Almendarez-Torres rule easily co-exist and have for
24 years co-existed as a matter of Sixth Amendment law.
See Apprendi v. New Jersey, 530 U. S. 466, 487–490 (2000).
And today's decision does not alter the basic ease of apply-
ing Almendarez-Torres. Today's decision, although I dis-
agree with it, is a clear and easily administered carveout
from Almendarez-Torres.
Second, as to reliance, the State and Federal Governments
possess substantial reliance interests in their existing sen-
tencing schemes. “Statutes that punish recidivists more se-
verely than frst offenders have a long tradition in this coun-
try that dates back to colonial times.” Parke, 506 U. S., at
26. By 1992, all 50 States and the Federal Government had
recidivism sentencing enhancements. Id., at 26–27. State
judges apply many of those state recidivism sentencing en-
hancements, as federal judges do in ACCA. See, e. g., N. J.
lenges to the underlying validity of a prior conviction typically must be
made in the appeal or habeas corpus proceedings regarding that prior
conviction.
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871
Jackson, J., dissenting
Stat. Ann. § 2C:44–3(a) (West 2016); 42 Pa. Cons. Stat.
§
9714(a)(2) (2019); R. I. Gen. Laws § 12–19–21 (2002).
Overruling Almendarez-Torres would upend that settled
practice. Legislatures across the country would have to
choose among various bad options. They could undermine
the longstanding limits on introducing evidence at trial of
past crimes. They could jettison longstanding sentencing
enhancements for recidivists. They could mandate costly
and ineffcient bifurcated trials in cases with a recidivism
enhancement, a fairly dramatic change to day-to-day criminal
trial practice in many jurisdictions. Or they could simply
enact discretionary sentencing regimes and authorize sen-
tences within a broad range for most crimes, leaving to
judges' discretion the choice within that range. See Ap-
prendi, 530 U. S., at 490, n. 16. Any of those options would
be a big change—and on top of that, several would actually
be unhelpful to criminal defendants.
To what end? There would be little (really nothing) to
gain by overruling Almendarez-Torres now, after 26 years
of settled federal and state practice relying on and easily
applying it. It is diffcult to conceive of a stronger case for
stare decisis than a longstanding rule with substantial sys-
temic benefts, ease of application, no apparent downside for
criminal defendants, and signifcant reliance interests. This
Court should adhere to Almendarez-Torres's settled rule.
***
As to the Court's conclusion that a jury must determine
whether the defendant's three prior violent felonies were
committed on different occasions, I respectfully dissent.
Justice Jackson, dissenting.
In the Armed Career Criminal Act (ACCA), 18 U. S. C.
§ 924(e), Congress directed sentencing judges to conduct a
“multi-factored” inquiry into “a range of circumstances” to
determine whether a particular defendant's criminal history
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872 ERLINGER
v. UNITED STATES
Jackson, J., dissenting
suggests that he is the sort of “ `revolving door' felo[n]” that
A
CCA was designed to target. Wooden v. United States,
595 U. S. 360, 369, 375 (2022); see also § 924(e)(1). Those
kinds of fndings have historically been deemed well within
the capacity of a sentencing judge. See Almendarez-Torres
v. United States, 523 U. S. 224, 243–244 (1998). Today, the
Court concludes that Apprendi v. New Jersey, 530 U. S. 466
(2000), must be read to suggest otherwise—i. e., that under
Apprendi, for sentencing purposes, facts that relate to a de-
fendant's prior crimes cannot be determined by judges but
instead must be found by juries. I disagree for several rea-
sons, including my overarching view that Apprendi was
wrongly decided. Like many jurists and other observers
before me, I do not believe that Congress exceeds its consti-
tutional authority when it empowers judges to make factual
determinations related to punishment and directs that a par-
ticular sentencing result follow from such fndings.
1
I recognize, of course, that Apprendi is a binding prece-
dent of this Court, and one that “has now defned the rele-
vant legal regime” for nearly a quarter century. Alleyne v.
United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring
in part and concurring in judgment). Given that reality, un-
tangling the knots Apprendi has tied is probably infeasible
at this point in our Court's jurisprudential journey. But
considering the faws inherent in Apprendi's approach, I can-
not join today's effort to further extend Apprendi's holding,
particularly when there is a well-established recidivism ex-
ception to the Apprendi rule that applies to the circum-
stances of the case before us now.
1
Critiques of the Apprendi Court's misguided constitutional analysis
have been covered at length elsewhere. See, e. g., Apprendi v. New Jer-
sey, 530 U. S. 466, 524–536 (2000) (O'Connor, J., dissenting); id., at 559–561
(Breyer, J., dissenting); Blakely v. Washington, 542 U. S. 296, 321 (2004)
(O'Connor, J., dissenting); id., at 326–327 (Kennedy, J., dissenting); id., at
340–346 (Breyer, J., dissenting); S. Bibas, Judicial Fact-Finding and Sen-
tence Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097 (2001).

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as: 602 U. S. 821 (2024)
873
Jackson, J., dissenting
I agree with Justice Kavanaugh that, all things consid-
ered,
the Court errs in concluding today that ACCA's occa-
sions inquiry must be decided by a jury. See ante, at 853–
858 (dissenting opinion). I write separately to provide an
additional critical perspective on the Apprendi doctrine—
one that is informed by how sentencing has actually worked
on the ground, before and after Apprendi—and to note that
applying the Apprendi rule to ACCA's occasions fnding cre-
ates all sorts of practical problems that are easily avoided by
simply allowing judges to do what they have always done.
Because the Court pushes the fawed Apprendi rule past
where it needs to go, and, incidentally, establishes a proce-
dural requirement that is likely impossible to implement in
real life, I respectfully dissent.
I
In Apprendi, this Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
530 U. S., at 490. For the reasons others have skillfully ar-
ticulated, see n. 1, supra, and also the reasons that follow, I
think the Apprendi Court was wrong to interpret the Sixth
Amendment's jury-trial guarantee to limit legislatures' abil-
ity to defne crimes and give judges discretion to set appro-
priate punishments based on fndings of fact. Apprendi and
its ilk have also needlessly hampered Congress's and state
legislatures' pursuit of a fairer and more rational sentenc-
ing system.
A
Our Constitution “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
In re Winship, 397 U. S. 358, 364 (1970). At the outset, it
is important to take note of the scope of this constitutional
protection as it has traditionally been recognized and under-
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stood: It is a protection against conviction without the nec-
essary
facts having been established beyond a reasonable
doubt. Ibid. That is not the same as a protection against
being sentenced to a certain level of punishment unless the
facts that are relevant to that sentencing determination have
been proved to a jury consistent with the reasonable-doubt
standard.
The facts that must be proved before a defendant can be
convicted are often called elements. See United States v.
Gaudin, 515 U. S. 506, 510 (1995). Traditionally, “the ele-
ments of a crime are its requisite (a) conduct (act or omission
to act) and (b) mental fault (except for strict liability
crimes)—plus, often, (c) specifed attendant circumstances,
and, sometimes, (d) a specifed result of the conduct.” 1 W.
LaFave, Substantive Criminal Law § 1.8(b), p. 103, n. 14 (3d
ed. 2018); see also 1 J. Ohlin, Wharton's Criminal Law § 3:1,
pp. 48–49 (16th ed. 2021). As the majority correctly recog-
nizes, such elemental facts have always been in the purview
of the jury. See ante, at 831. The Sixth Amendment's jury-
trial guarantee refects this well-established understanding
of the jury's domain. See Sullivan v. Louisiana, 508 U. S.
275, 277–278 (1993).
Although sometimes the “determination of what elements
constitute a crime . . . is subject to dispute,” Gaudin, 515
U. S., at 525 (Rehnquist, C. J., concurring), it is clear that
“[o]nly the people's elected representatives in the legislature
are authorized to `make an act a crime,' ” United States v.
Davis, 588 U. S. 445, 451 (2019) (quoting United States v.
Hudson, 7 Cranch 32, 34 (1812)). It follows that “ `[t]he
defnition of the elements of a criminal offense is entrusted
to the legislature.' ” Staples v. United States, 511 U. S. 600,
604 (1994) (quoting Liparota v. United States, 471 U. S. 419,
424 (1985); alteration in original). For that reason, this
Court—at least until recent times—generally deferred to
legislative judgments about which facts constitute elements
of the offense. See McMillan v. Pennsylvania, 477 U. S. 79,

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Jackson, J., dissenting
85 (1986) (“[I]n determining what facts must be proved be-
yond
a reasonable doubt the . . . legislature's defnition of the
elements . . . is usually dispositive”).
Once a defendant has been found guilty of a crime—i.e.,
once a jury has made the requisite factual fndings establish-
ing the elements of the crime—judges have traditionally
been entrusted with substantial discretion to impose the ap-
propriate sentence. See K. Stith & J. Cabranes, Fear of Judg-
ing: Sentencing Guidelines in the Federal Courts 9 (1998).
Indeed, at the dawn of our Republic, the very frst Congress
enacted many criminal laws that prescribed a range of possi-
ble punishments, leaving it to judges to determine the proper
sentence. See An Ac t for the Punishment of Cer t ai n
Crimes Against the United States, ch. 9, 1 Stat. 112–118; see
also R. Little & T. Chen, The Lost History of Apprendi and
the Blakely Petition for Rehearing, 17 Fed. Sentencing Rep.
69, 72 (2004).
2
Signifcantly for present purposes, judges were thought to
“inherently possess ample right to exercise reasonable, that
is, judicial, discretion to enable them to wisely exert their
authority” in deciding what punishment to impose. Ex
parte United States, 242 U. S. 27, 41–42 (1916). In fact, a
judge's determination of the appropriate sentence was long
considered to be unreviewable in most circumstances. See
Dorszynski v. United States, 418 U. S. 424, 431 (1974).
When exercising their sentencing authority, judges were
also presumed to have the power to fnd and consider nearly
any fact deemed relevant to the penalty. “[B]oth before and
2
For example, the First Congress declared that misprision (i.e., conceal-
ment) of a felony was punishable by “imprison[ment] not exceeding three
years” and a “fn[e] not exceeding fve hundred dollars.” § 6, 1 Stat. 113.
Stealing or falsifying court records was punishable by “imprison[ment]
not exceeding seven years” and “whipp[ing] not exceeding thirty-nine
stripes.” § 15, id., at 115–116. At least 14 other federal crimes enacted
during this time gave judges discretion over similar sentencing ranges.
See Little & Chen, 17 Fed. Sentencing Rep., at 72.
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since the American colonies became a nation, courts in this
country
and in England practiced a policy under which a sen-
tencing judge could exercise a wide discretion in the sources
and types of evidence used to assist him in determining the
kind and extent of punishment to be imposed within limits
fxed by law.” Williams v. New York, 337 U. S. 241, 246
(1949). A sentencing judge might fnd, for example, that a
defendant lacked remorse for his crime, or that the conduct
underlying the crime was particularly heinous, and sentence
the defendant accordingly. See id., at 247. All of those
kinds of factual determinations were considered to be impor-
tant factors for imposing the sentence that a person who had
been found guilty of a criminal act would be required to
serve. And none of them were thought to be subject to the
Sixth Amendment's jury-trial right.
By the late 19th century, sentencing schemes grew more
complex, with the vast majority of States and the Federal
Government adopting so-called indeterminate sentencing
systems. A. Campbell, Law of Sentencing §§ 1:2–1:3, pp. 9–
10 (3d ed. 2004) (Campbell). In those jurisdictions, “[u]sing
broad discretion, trial courts imposed minimum and maxi-
mum [sentences] based on judicial estimates of how long it
would take to rehabilitate criminal offenders,” which parole
boards then used to determine when an offender would be
released. Id., § 1:3, at 10. There, too, judges were given
wide authority to determine an appropriate sentencing
range, and to do so based on judicial fndings of fact. In
fact, “judges were encouraged to weigh the character of the
individual offender along with the nature of the offense when
imposing sentence,” id., § 1:2, at 9, considerations that are
immensely factbound. That judges rather that juries made
these factual fndings was not thought to be constitutionally
problematic.
Critically, the nature of factfnding proceedings before a
judge at sentencing was—and still is—fundamentally differ-
ent from the factfnding that a jury engages in. Jury fact-
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fnding at trial “always ha[s] been hedged in by strict eviden-
tiary
procedural limitations.” Williams, 337 U. S., at 246.
By contrast, such limitations have not, as a general matter,
applied to judges when they fnd facts for sentencing pur-
poses. See ibid. Instead, a sentencing judge has always
been expected to consider a wide range of information—
rea l ly, anyth i ng relevant to assessi ng the appropr iate
penalty—when determining a sentence.
The difference between jury factfnding at trial and judi-
cial factfnding for sentencing makes perfect sense. “Typi-
cally, trial disputes center on particular issues of historical
fact,” and juries accordingly “receive limited information and
must choose from limited options to resolve disputed issues.”
D. Berman & S. Bibas, Making Sentencing Sensible, 4 Ohio
St. J. Crim. L. 37, 54 (2006). As a result, “[r]ules of evidence
have been fashioned for criminal trials which narrowly con-
fne the trial contest to evidence that is strictly relevant to
the particular offense charged.” Williams, 337 U. S., at
246–247. “A sentencing judge, however, is not confned to
the narrow issue of guilt. His task within fxed statutory
or constitutional limits is to determine the type and extent
of punishment after the issue of guilt has been determined.”
Id., at 247. Thus, sentencing judges “receiv[e] a range of
information about both the offense and the offender and
can choose from various possible dispositions.” Berman &
Bibas, 4 Ohio St. J. Crim. L., at 55. “Highly relevant—if not
essential—to [a judge's] selection of an appropriate sentence
is the possession of the fullest information possible concern-
ing the defendant's life and characteristics.” Williams, 337
U. S., at 247.
The upshot is that, traditionally, judges and juries have not
only played different factfnding roles, they have also utilized
different tools to carry out those duties. And far from being
ill equipped to fnd facts for punishment purposes, judges
have long been regarded as having both the power and the
institutional competency to determine the factual bases for
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the imposition of sentences. Again: This judicial authority
has
traditionally included the ability to make fndings of fact
related to both an offender's characteristics and the criminal
conduct at issue as necessary to determine an appropriate
sentence—all while relying on a wide range of evidence.
Historically, none of this was thought to confict with or
usurp the jury's distinct role of determining guilt or
innocence.
B
Over time, however, legislatures became concerned with
“the almost wholly unchecked and sweeping powers . . .
give[n] to judges in the fashioning of sentences.” M. Fran-
kel, Cr i mi na l Sentences: Law Without Order 5 (1973).
“[L]egislators . . . decried the perceived inequity of incarcer-
ating some offenders longer than others for the same crime,”
as well as the possibility that discriminatory considerations
such as race and sex were playing a role in judges' sentenc-
i ng deter mi nati ons. Campbel l § 1:3, at 11; see a lso S.
Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1,
4–5 (1988). “The length of time a person spent in prison
appeared to depend on `what the judge ate for breakfast' on
the day of sentencing, on which judge you got, or on other
factors that should not have made a difference to the length
of the sentence.” Blakely v. Washington, 542 U. S. 296, 332
(2004) (Breyer, J., dissenting).
Out of this unregulated environment emerged a legislative
development—the identifcation of what are commonly re-
ferred to as “sentencing factors” (also known as “sentencing
facts”). In an effort “to bring more order and consistency
to the [sentencing] process,” Congress and state legislatures
“sought to move from a system of indeterminate sentencing
or a grant of vast discretion to the trial judge to a regime
in which there [were] more uniform penalties, prescribed
by the legislature.” Jones v. United States, 526 U. S. 227,
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Jackson, J., dissenting
271 (1999) (Kennedy, J., dissenting). Legislatures recog-
ni
zed that, although judges are fully competent to fnd facts
and exercise discretion when sentencing, too much discre-
tion could create unwarranted disparities and therefore have
detrimental effects. New sentencing regimes were imple-
mented to cabin sentencing discretion by “directly limit-
[ing] the use . . . of particular factors in sentencing ” and
“by specifying statutorily how a particular factor [would]
affect the sentence.” Apprendi, 530 U. S., at 560 (Breyer,
J., dissenting).
Legislatures sometimes specifed, for example, “that a par-
ticular factor, say, use of a weapon, recidivism, injury to a
victim, or bad motive, `shall' increase, or `may' increase, a
particular sentence in a particular way.” Ibid. Conversely,
legislatures also directed judges to disregard certain facts,
including those that were deemed irrelevant for sentencing
purposes. See 28 U. S. C. § 994(d) (directing the U. S. Sen-
tencing Commission to consider whether age, education, vo-
cational skills, and other factors are relevant to sentencing);
United States Sentencing Commission, Guidelines Manual
§§ 5H1.2, 5H1.4, 5H1.5, 5H1.6 (Nov. 2023) (noting that educa-
tion, drug or alcohol dependence, employment record, and
family ties are ordinarily not relevant in determining the
length of a sentence); see also, e. g., Wash. Rev. Code
§ 9.94A.535(e) (2023) (excluding “[v]oluntary use of drugs or
alcohol” as a potential mitigating factor).
These structured sentencing schemes were not adopted
“to manipulate the statutory elements of criminal offenses
or to circumvent the procedural protections of the Bill of
Rights.” Blakely, 542 U. S., at 316 (O'Connor, J., dissenting).
Rather, Congress and the States that adopted these rules
did so against a backdrop of unbounded judicial discretion
that had proved, in their view, to be unwieldy, unfair, and
unwise. Accordingly, the goal of legislative efforts in this
regard was to constrain judicial discretion by channeling the
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accepted competency of judges to set appropriate sentences
toward
the objective of achieving more consistent and more
equitable outcomes.
This Court dealt a signifcant blow to these legislative at-
tempts to promote fairness and consistency in sentencing
with its decision in Apprendi. As I previously noted, we
concluded—for the frst time in history—that “[o]ther than
the fact of a prior conviction, any fact that increases the pen-
alty for a crime beyond the prescribed statutory maximum”
is an element that “must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U. S., at 490. We later
extended that rule to cover any “fnding of fact” that “alters
the legally prescribed punishment so as to aggravate it,” be-
cause—in the Court's view—that “fact necessarily forms a
constituent part of a new offense and must be submitted to
the jury.” Alleyne, 570 U. S., at 114–115.
By now, the Apprendi rule has been applied to a litany
of punishments other than incarceration. See ante, at 833.
Through these cases, the Court has “embrace[d] a universal
and seemingly bright-line rule limiting the power of Con-
gress and state legislatures to defne criminal offenses and
the sentences that follow from convictions thereunder.”
Apprendi, 530 U. S., at 525 (O'Connor, J., dissenting). By
any measure, “[t]he impact of Apprendi and its progeny has
been extraordinary, disrupting sentences and prompting new
[corrective] legislation across the nation.” 6 W. LaFave, J.
Israel, N. King, & O. Kerr, Criminal Procedure § 26.4(i),
p. 1011 (4th ed. 2015).
II
A
I was not a Member of the Court during these develop-
ments. In my view, however, the Court made a serious mis-
take when it confated elements and sentencing factors in
this way. As others have argued, “[t]he Court's basic error
in Apprendi . . . was its failure to recognize the law's tradi-
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tional distinction between elements of a crime (facts consti-
tuti
ng the crime, typically for the jury to determine) and
sentencing facts (facts affecting the sentence, often concern-
ing, e. g., the manner in which the offender committed the
crime, and typically for the judge to determine).” Alleyne,
570 U. S., at 122 (Breyer, J., concurring in part and concur-
ring in judgment). The Sixth Amendment's jury-trial right
“guarantees a jury's determination of facts that constitute
the elements of a crime”—no more and no less. Id., at 123.
To be fair, the principal justifcation that has been given
for Apprendi's confation of elements and sentencing factors
is a historical one. See, e. g., ante, at 829–830; Alleyne, 570
U. S., at 108–111 (opinion of Thomas, J.). The account that
has been provided in some of the Court's opinions is that,
during the founding era, “ `[o]nce the facts of the offense were
determined by the jury, the judge was meant simply to im-
pose the prescribed sentence.' ” Ante, at 831 (quoting
United States v. Haymond, 588 U. S. 634, 642 (2019) (plural-
ity opinion); alteration in original). But the accuracy of this
historical account is debatable. See n. 2, supra. Scholars
have suggested that, far from the simplistic picture painted
by the Court in Apprendi, the historical “tradition was not
uniform, suggesting that the common law had no fxed rule
on the subject.” S. Bibas, Judicial Fact-Finding and Sentence
Enhancements in a World of Guilty Pleas, 110 Yale L. J. 1097,
1129 (2001); see also, e. g., id., at 1123–1132; Little & Chen,
17 Fed. Sentencing Rep., at 69–70; J. Mitchell, Apprendi's
Domain, 2006 S. Ct. Rev. 297, 298–299.
In any event, the Constitution itself does not mention sen-
tencing at all—let alone the work of courts when sentenc-
ing—and it certainly “does not freeze 19th-century sentenc-
ing practices into permanent law.” Apprendi, 530 U. S., at
559 (Breyer, J., dissenting). Moreover, “[a]n essential aspect
of the Constitution's endurance is that it empowers the politi-
cal branches to address new challenges by enacting new laws
and policies.” Consumer Financial Protection Bureau v.
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Jackson, J., dissenting
Community Financial Services Assn. of America, Ltd., 601
U
. S. 416, 446 (2024) (Jackson, J., concurring). In my view,
the People's elected representatives should be able to pursue
new and innovative approaches to sentencing and sentencing
reform “without undue interference by courts,” ibid., espe-
cially given that unfair and disparate sentences are a persist-
ent societal problem that the legislature is indisputably au-
thorized to address.
Nor is there a functional, policy-based justifcation for the
constitutional rule that Apprendi and its progeny enshrined.
The Court has repeatedly characterized Apprendi as pre-
serving “the right of jury trial” in the past, Blakely, 542
U. S., at 305, and persists with that mantra to this day, ante,
at 829–832. As the reasoning goes, because the Apprendi
rule recognizes that it is “ `unconstitutional for a legislature
to remove from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal defend-
ant is exposed,' ” 530 U. S., at 490, Apprendi “preserves the
historic role of the jury as an intermediary between the
State and criminal defendants,” Alleyne, 570 U. S., at 114.
But, in reality, the Apprendi rule does no such thing. A
sentencing judge today remains free, consistent with Ap-
prendi, to impose any punishment within a prescribed sen-
tencing range based on whatever facts she deems relevant.
See 530 U. S., at 481 (conceding that judges may “exercise
discretion—taking into consideration various factors relating
both to offense and offender—in imposing a judgment within
the range prescribed” (emphasis deleted)). So, “[u]nder the
Apprendi doctrine, the jury plays only one role with respect
to sentencing, and it is an indirect one: [I]f the defendant
does not plead guilty, then the jury must determine the pres-
ence or absence of the verdict facts that operate to constrain
the outer limit of the judge's authority to impose sentence.”
B. Priester, Apprendi Land Becomes Bizarro World: “Policy
Nullifcation” and Other Surreal Doctrines in the New Con-
stitutional Law of Sentencing, 51 Santa Clara L. Rev. 1, 47
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(2011) (emphasis added). Meanwhile, the judge continues to
be
the sole decisionmaker with respect to determining the
facts she will rely upon to sentence within the typically
broad statutory sentencing range. See United States v.
Booker, 543 U. S. 220, 246 (2005). “The jury plays no role in
extraverdict factfnding, nor in calculating the specifc sen-
tence to be imposed within the outer limit authorized by the
verdict facts.” Priester, 51 Santa Clara L. Rev., at 48.
Apprendi's distinction between permissible and impermis-
sible judicial factfnding therefore neither aligns with the
doctrine's rationale nor achieves its stated goals. As a re-
sult, the Apprendi rule does little actual work. Even after
Apprendi, a sentencing judge can still fnd and consider any
fact—including sentencing factors defned by the legisla-
ture—so long as the consequence of that fact is not man-
datory but rather left to the judge's discretion. And after
Apprendi, just as before, criminal defendants routinely
stipulate to facts that are relevant to statutory maximums
and minimums as part of binding plea agreements, making
factfnding with respect to these newfound elements irrele-
vant. So, really, the only change that Apprendi has wrought
is that legislatures may no longer limit judicial discretion as
a matter of law by requiring that a particular sentencing fact
have a particular effect on the sentence. See Blakely, 542
U. S., at 303–304.
At bottom, then, all the Apprendi doctrine has done is
“shiel[d] the sentencing power of judges from legislative en-
croachment.” Priester, 51 Santa Clara L. Rev., at 49.
Given this, it is no wonder that, for all its exhortations about
the right to jury factfnding for sentencing purposes, the Ap-
prendi line of cases appears to have had no appreciable effect
on “the number of criminal jury trials” or on “the number of
sentence-affecting facts decided by juries in those trials that
do occur.” F. Bowman, Debacle: How the Supreme Court
Has Mangled American Sentencing Law and How It Might
Yet Be Mended, 77 U. Chi. L. Rev. 367, 461 (2010).
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B
In
terms of the impact on the functioning of our criminal
justice system, however, the consequences of the Court's de-
cisions in this area have been palpable. Most notably for
present purposes, Apprendi has prevented legislatures from
developing innovative methods to achieve fairness in sen-
tencing and thus, in my view, has stunted our collective pur-
suit of justice. What I mean by this is that, while “[l]egisla-
tures may set the available penalties for offenses using
verdict facts,” they must now be essentially hands off “once
that scope of punishment is established.” Priester, 51 Santa
Clara L. Rev., at 50. Far from the mystical myth that the
Sixth Amendment vests juries with sentencing power, the
reality is that, through its Apprendi doctrine, the Court has
merely managed to oust the legislature from its rightful
place in the sentencing policy sphere, thereby effectively “in-
sist[ing] that the power to consider sentencing facts and as-
sess their normative worth must rest [solely] with judges.”
Priester, 51 Santa Clara L. Rev., at 50.
The People's representatives are left with “a binary
choice” when crafting legislation due to the Apprendi doc-
trine—“a fact is either of a type that triggers the full pano-
ply of procedural protections that comes with the Sixth
Amendment jury trial right, or it is of no constitutional con-
sequence and can be found and relied on by a judge with
virtually no procedural safeguards at all.” Bowman, 77
U. Chi. L. Rev., at 466; see also Blakely, 542 U. S., at 330–
340 (Breyer, J., dissenting) (outlining the limited options that
legislatures have, all of which “ris[k] either impracticality,
unfairness, or harm to the jury trial right”). But not every
fact fts neatly into this dichotomy. Moreover, and impor-
tantly, judges and juries engage with facts differently in the
context of their distinct roles.
“Juries provide democratic legitimacy, common sense, and
fresh perspectives.” Berman & Bibas, 4 Ohio St. J. Crim.
L., at 62. Meanwhile, “[ j]udges are experts, can more effec-
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Jackson, J., dissenting
tively and consistently apply complex rules, and have fexi-
bi
lity in how they consider evidence.” Id., at 62–63. But
under the Apprendi rule, the policymaking branches of our
government can no longer devise more nuanced, creative ap-
proaches to factfnding at sentencing that better refect the
differing competencies of jurors and judges.
In short, the Court's all-or-nothing approach to the jury-
trial right in Apprendi and its kin “pose[s] a serious obstacle
to [legislative] efforts to create a sentencing law that would
mandate more similar treatment of like offenders, that would
thereby diminish sentencing disparity, and that would conse-
quently help to overcome irrational discrimination (including
racial discrimination) in sentencing.” Booker, 543 U. S., at
329 (Breyer, J., dissenting in part). The Court has also “de-
prive[d] Congress and state legislatures of authority that is
constitutionally theirs.” Id., at 330.
C
I recognize that many criminal defendants and their advo-
cates prefer the Apprendi regime, which provides some de-
fendants with more procedural protections at sentencing.
In no way am I suggesting that the defense bar has “been
`somehow duped' into advocating for a rule that would be
`unfair to criminal defendants. ' ” An te, at 847 (quoting
Blakely, 542 U. S., at 312). Defendants' embrace of the Ap-
prendi doctrine is perfectly rational because procedural
rights like the right to have a jury determine certain sen-
tencing facts “hel[p] some defendants—and probably rais[e]
the overall level of defense victories—by giving their law-
yers claims and arguments that otherwise would not exist.”
W. Stuntz, The Uneasy Relationship Between Criminal Pro-
cedure and Criminal Justice, 107 Yale L. J. 1, 45 (1997).
In my view, however, the beneft that some criminal de-
fendants derive from the Apprendi rule in the context of
their individual cases is outweighed by the negative systemic
effects that Apprendi has wrought, when compared to “the
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greater fairness of a sentencing system that a more uniform
correspondence
between real criminal conduct and real pun-
ishment helps to create.” Blakely, 542 U. S., at 338 (Breyer,
J., dissenting). An individual defendant may, of course, ben-
eft from a reduced sentence based on a jury's verdict under
the Apprendi rule, but that favorable outcome for one person
does little to ensure systemic fairness, consistency, and trans-
parency in sentencing. See Stuntz, 107 Yale L. J., at 75.
The U. S. Sentencing Commission has documented the im-
pact of the Apprendi rule in the wake of our decision in
United States v. Booker, 543 U. S. 220, which applied Ap-
prendi to the Federal Sentencing Guidelines. In Booker, we
found certain judicial factfnding in the Guidelines context
unconstitutional under Apprendi, but to remedy that viola-
tion, we also held that the Guidelines must be treated
as advisory rather than mandatory. 543 U. S., at 244–245.
After Booker, sentencing disparities of all manner have in-
creased signifcantly. Otherwise similarly situated defend-
ants appear to receive vastly different sentences depending
on the court in which they are prosecuted and what judge is
assigned to their case. See, e. g., United States Sentencing
Commission, Inter-District Differences in Federal Sentenc-
ing Practices 7 (Jan. 2020) (“Variations in sentencing prac-
tices across districts increased in the wake of the Supreme
Court's 2005 decision in Booker”); United States Sentencing
Commission, Intra-City Differences in Federal Sentencing
Practices 7 (Jan. 2019) (“In most cities, the length of a de-
fendant's sentence increasingly depends on which judge in
the courthouse is assigned to his or her case”). Given the
history of sentencing reform in our Nation, see Part I–B,
supra, it was foreseeable that Apprendi's interference with
legislative control over judicial sentencing discretion would
contribute to these kinds of disparities.
Among the evidence that has been amassed concerning
Apprendi's negative downstream impact on sentencing fair-
ness, one statistic is particularly sobering: In the federal
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criminal justice system, racial disparities in sentencing have
been
a persistent problem, but the gap between similarly
situated Black and White male defendants “was narrowest”
before the Court applied Apprendi to the Guidelines. K.
Klein & S. Klein, A Racially Biased Obstacle Course: Ap-
prendi Transformed the Federal Sentencing Guidelines into
a Series of Judicial Obstacles; Can Shame Reduce the Racial
Disparities? 99 N. C. L. Rev. 1391, 1412 (2021); see also
United States Sentencing Commission, Demographic Differ-
ences in Sentencing: An Update to the 2012 Booker Report
6 (Nov. 2017). And Apprendi appears to have made things
appreciably worse. See Klein & Klein, 99 N. C. L. Rev., at
1412 (“Currently, for every ffty-one months a judge gives a
White man, a similarly situated Black man receives eight
more”).
So, while the defense bar might like Apprendi because its
rule can beneft individual defendants in certain cases, that
rule might also be inhibiting our collective achievement of a
fairer sentencing system more broadly.
I do acknowledge, however, that there are risks involved
with legislative innovation in this area, since not all legisla-
tive action in the sentencing realm will be made in pursuit
of greater systemic fairness. Legislatures are sometimes
incentivized to adopt more punitive measures, such as man-
datory minimums or severe recidivism-based sentencing en-
hancements. See W. Stuntz, The Pathological Politics of
Criminal Law, 100 Mich. L. Rev. 505, 530–531 (2001). And
at least in some circumstances, the Apprendi rule operates
to blunt such measures. See Alleyne, 570 U. S., at 123–124
(Breyer, J., concurring in part and concurring in judgment).
But problems created by the legislature can also be ad-
dressed through the democratic process; indeed, legislators
have recently retreated from harsh sentencing laws. See,
e. g., First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194;
see also Pulsifer v. United States, 601 U. S. 124, 155 (2024)
(Gorsuch, J., dissenting) (discussing the First Step Act's at-
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tempt to “recalibrate [Congress's] approach” to sentencing).
Meanwh
ile, Apprendi's constitutional rule operates to con-
strain legislative reforms while also potentially perpetuating
the unfairness caused by unwarranted disparities.
To be clear, my skepticism of Apprendi should not be
taken to suggest that I believe that legislatures should have
unbridled authority to write laws that distinguish between
sentencing factors and elements. There is, of course, “a risk
of unfairness involved in permitting [legislatures] to make
this labeling decision.” Blakely, 542 U. S., at 344 (Breyer,
J., dissenting). Sentencing policymakers could, perhaps,
“permit [a sentencing factor] to be a tail which wags the dog
of the substantive offense.” McMillan, 477 U. S., at 88.
For example, in the most extreme circumstances, a legisla-
ture “might permit a judge to sentence an individual for mur-
der though convicted only of making an illegal lane change.”
Blakely, 542 U. S., at 344 (Breyer, J., dissenting).
But, to me, the most logical solution to that problem is not
to invoke the jury-trial right, as the Court has held. “The
jury-trial right addresses only who makes certain determina-
tions, not how these determinations are made.” Berman &
Bibas, 4 Ohio St. J. Crim. L., at 58–59; see also Bibas, 110
Yale L. J., at 1177–1180. By contrast, “the Due Process
Clause is well suited” to address unfair sentencing proce-
dures. Blakely, 542 U. S., at 344 (Breyer, J., dissenting); see
also Morrissey v. Brewer, 408 U. S. 471, 481 (1972) (“[D]ue
process is fexible and calls for such procedural protections
as the particular situation demands”). Other constitutional
provisions, like the Eighth Amendment's prohibition against
excessive fnes and cruel and unusual punishments, also play
an obvious role in limiting the types of punishments that can
be imposed based on sentencing factors. See, e. g., Ring v.
Arizona, 536 U. S. 584, 619 (2002) (Breyer, J., concurring in
judgment); United States v. Bajakajian, 524 U. S. 321, 334–
335 (1998).

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In other words, to my mind, not every sentencing problem
is
a nail requiring an Apprendi hammer. To the contrary,
applying Apprendi to address these and other concerns
seems to simply erect further roadblocks for policymakers
who might otherwise act to promote more fairness in
sentencing.
III
So what do my concerns about Apprendi have to do with
my analysis of the question presented in this case? The
doubts I have make me reluctant to join a ruling that ex-
tends Apprendi's holding unnecessarily. And, here, we need
not conclude that the occasions fnding in ACCA is one to
which the Apprendi rule applies, as Justice Kavanaugh
explains. Ante, at 853–854 (dissenting opinion). Indeed,
we have already recognized that “[ j]udges may,” consistent
with the Apprendi rule, “resolve questions about a defend-
ant's past crimes . . . that are relevant not to the defendant's
guilt for the present offense but rather to the length of the
defendant's sentence.” Ante, at 853–854; see also Almend-
arez-Torres, 523 U. S., at 239, 247.
I will use this opportunity to make one additional observa-
tion: Not only is the majority's approach to ACCA's occasions
fnding inconsistent with our precedent (as Justice Kava-
naugh observes, ante, at 853–854), it is also unworkable in
practice, due to the limitations inherent in jury presenta-
tions. That is, for all the majority's talk of constitutional
theory, it gives little thought to “proportionality, uniformity,
and administrability,” which “are all aspects of that basic
`fairness' that the Constitution demands.” Apprendi, 530
U. S., at 559 (Breyer, J., dissenting).
As a reminder, ACCA directs sentencing courts to impose
a 15-year mandatory minimum for a violation of 18 U. S. C.
§ 922(g) if the defendant has three qualifying prior con-
victions “committed on occasions different from one an-
other.” 18 U. S. C. § 924(e)(1). In Wooden, we explained
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that ACCA's occasions fnding is not a simple up-or-down as-
sessment;
rather, the factfnder must consider “a range of
circumstances,” including the timing, location, character, and
relationship of the crimes. 595 U. S., at 369. The majority
now concludes that, “given the intensely factual nature of
this inquiry . . . , a jury must resolve it.” Ante, at 828. I
come to exactly the opposite conclusion, based on the nature
of the factfnding that judges and juries engage in—and their
relative competencies. In my view, “the intensely factual
nature of this inquiry,” ibid., when combined with the fact
that ACCA's occasions fnding often pertains to long-past
prior criminal behavior by the defendant, is precisely why a
jury is poorly situated to make such a fnding, as opposed
to a judge. As I explain below, the particular factfnding
determination that the occasions inquiry requires is unsuit-
able for juries to decide in terms of both fairness and eff-
ciency—two crucial criteria for procedural requirements in a
criminal justice system.
A
As to fairness, ACCA's occasions determination involves
facts about a defendant's past crimes that can prejudice the
jury against the defendant and thereby make it more diffcult
for the jury to fnd in the defendant's favor with respect to
the occasions issue.
Past criminality on a defendant's part “is a traditional, if
not the most traditional, basis for a sentencing court's in-
creasing an offender's sentence.” Almendarez-Torres, 523
U. S., at 243. And there is a good reason judges have long
been entrusted with fnding facts related to recidivism—be-
cause “the introduction of evidence of a defendant's prior
crimes” to a jury “risks signifcant prejudice.” Id., at 235.
This Court has specifcally recognized the substantial risk of
“generalizing a defendant's earlier bad act into bad character
and taking that as raising the odds that he did the later bad
act now charged.” Old Chief v. United States, 519 U. S. 172,
180–181 (1997). Empirical research has further confrmed
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891
Jackson, J., dissenting
the commonsense conclusion that criminal history is prejudi-
cia
l. See, e. g., T. Eisenberg & V. Hans, Taking a Stand on
Taking the Stand: The Effect of a Prior Criminal Record on
the Decision To Testify and on Trial Outcomes, 94 Cornell
L. Rev. 1353, 1357 (2009) (“Juries appear to rely on criminal
records to convict when other evidence in the case normally
would not support conviction”).
As Justice Kavanaugh notes, such fairness concerns
have long compelled courts to keep facts concerning a de-
fendant's criminal history away from juries. Ante, at 866–
867. “Courts that follow the common-law tradition almost
unanimously have come to disallow resort by the prosecution
to any kind of evidence of a defendant's evil character to
establish a probability of his guilt.” Michelson v. United
States, 335 U. S. 469, 475 (1948). This principle—that juries
would be prejudiced by exposure to a defendant's criminal
history—is, in fact, a cornerstone of criminal procedure.
3
The majority seems to agree that past-crimes evidence is
prejudicial, at least to a certain extent. It says that, when
ACCA's occasions inquiry is set for jury determination under
the Apprendi rule (as we require today), trial courts will
need “to address the prejudicial effect evidence about a de-
fendant's past crimes can have on a jury.” Ante, at 847. In
the majority's view, however, the “[m]ost obviou[s]” solution
is bifurcating the proceedings between the § 922(g) charge
and ACCA's occasions determination. Ibid. But bifurca-
tion is not an easy fx, as Justice Kavanaugh explains.
3
For example, this Court has held that, when a defendant stipulates to
the existence of a prior conviction, the prosecution may not introduce evi-
dence of the underlying facts for that conviction. Old Chief v. United
States, 519 U. S. 172, 191 (1997). Similarly, we have recognized that
prosecutors may not comment on a defendant's refusal to testify, given
that such a refusal may stem from a concern that his prior convictions
will be used to impeach him and thus prejudice the jury. See Griffn v.
California, 380 U. S. 609, 615 (1965). The suggestion that juries should
now engage in rigorous factfnding with respect to a defendant's criminal
history is in tension with these prior pronouncements.
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Ante, at 868. For one thing, bifurcation of trial proceedings
i
mposes signifcant additional burdens on the criminal justice
system. Ibid. I will point to an additional problem: Even
bifurcation may not suffce to completely eliminate potential
juror prejudice with respect to the occasions fnding.
Consider, if you will, the kinds of evidence the prosecution
might ask a jury to evaluate in a bifurcated trial over (the
comparatively pedestrian) question whether a defendant's
prior crimes were committed on different occasions. Also
imagine the defendant's potential arguments in response.
Concerning the latter, in this case, Erlinger's counsel sug-
gested that his past crimes—three burglaries that occurred
on different dates over an 8-day period—could conceivably
constitute a single occasion of criminality if those break-ins
were all committed “to get money to pay [a] gambling debt.”
Tr. of Oral Arg. 25. Under Wooden's inquiry, however, any
jury making the occasions determination in this case would
not be directed just to consider whether Erlinger did, in
fact, have a gambling problem—they would also have to de-
termine exactly what happened during each of Erlinger's
burglaries.
The jury would be called upon to assess Erlinger's credi-
bility and decide whether they believed his gambling-debt
story in light of his criminality, and the potential prejudice
from entertaining evidence about all the sordid details of Er-
linger's underlying crimes makes a fair credibility fnding
much more diffcult. In other words, Erlinger's past crimi-
nal behavior, and the fact that he was previously convicted
of these crimes (more than one of them), conclusively estab-
lishes that Erlinger is a convicted serial burglar—and per-
haps a violent one at that—rendering any credibility fnding
in the defendant's favor signifcantly more dubious. See
Shepard v. United States, 544 U. S. 13, 38 (2005) (O'Connor,
J., dissenting) (observing that the “prejudice is likely to be
especially strong in ACCA cases, where the relevant prior
crimes are, by defnition, `violent' ”); see also Michelson, 335
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893
Jackson, J., dissenting
U. S., at 476 (observing that prior-crimes evidence can “over-
persuade”
jurors “to prejudge [a defendant] with a bad gen-
eral record and deny him a fair opportunity to defend
against” the Government's arguments).
To be sure, preventing undue prejudice against defendants
is an important responsibility of judges, and it is certainly
possible that, with the beneft of careful limiting instructions,
jurors would be able to dispassionately consider evidence
about the nature and extent of a defendant's past criminality
only for the narrow question whether the defendant's past
crimes were, in fact, committed on separate occasions. See
Spencer v. Texas, 385 U. S. 554, 562 (1967). But given what
Wooden calls for, it seems as though some degree of preju-
dice from the sheer fact of the defendant's having been pre-
viously convicted of crimes of this nature is inevitable. See
Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jack-
son, J., concurring) (“The naive assumption that prejudicial
effects can be overcome by instructions to the jury, all prac-
ticing lawyers know to be unmitigated fction” (citation
omitted)).
B
The potential for prejudice is not the only practical prob-
lem. At the same time, a jury trial—a highly regulated, in-
fexible proceeding—is, by its nature, poorly equipped to deal
with the fne-grained, nuanced determinations based on
sometimes-decades-old evidence that are necessary to fairly
adjudicate factual questions like the one that ACCA's occa-
sions inquiry raises. This mismatch, too, persists even in
the proposed world of bifurcated trials. Bifurcated trials or
no, it is wildly ineffcient for our system to try to ft the
square peg of factfnding related to past criminality for sen-
tencing purposes into the round hole of the existing proc-
esses that govern jury determinations.
As I have explained, factfnding at trial (before a jury) and
factfnding at sentencing (before a judge) differ procedurally
in fundamental ways. See Part I–A, supra. Jury factfnd-
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ing is restricted and reg imented, because a jury trial is
“conf
ne[d] . . . to evidence that is strictly relevant to the
particular offense charged.” Williams, 337 U. S., at 247.
Meanwhile, because “[a] sentencing judge . . . is not confned
to the narrow issue of guilt,” she is not bound by “strict
evidentiary procedural limitations”; rather, when determin-
ing the appropriate sentence, a judge “exercise[s] a wide dis-
cretion in the sources and types of evidence used to assist
[her] in determining the kind and extent of punishment to be
imposed.” Id., at 246–247.
Again, ACCA's occasions determination is illustrative.
Recall that Wooden requires a nuanced consideration of vari-
ous factors, such as timing, location, and character of the past
crimes, to determine whether those past crimes constituted
separate “episodes of criminal activity.” 595 U. S., at 369.
The “strict evidentiary procedural limitations” that apply to
juries, Williams, 337 U. S., at 246, make it impractical for
juries to conduct this kind of assessment. To take just one
example, ACCA cases typically involve predicate crimes that
may have occurred years—or even, as here, decades—ago.
See ante, at 826–827. Erlinger's sentencing for the crime
to which ACCA potentially applies took place in 2022. See
App. to Pet. for Cert. 14a. The three burglaries that gave
rise to the occasions issue occurred 31 years prior—in 1991.
Id., at 21a. Given the rigidity of trials and the frailty of
trial evidence, how—that is, based on what evidence—is a
jury supposed to go about making the occasions fnding in
this case?
The majority today boldly relegates this particular fact-
fnding task to a jury, without pausing to explain how this
assignment will reasonably be accomplished in light of these
practical limitations. “But the real world of criminal justice
. . . can function only with the help of procedural compro-
mises, particularly in respect to sentencing.” Apprendi, 530
U. S., at 555 (Breyer, J., dissenting). Even setting aside that
a perfectly competent alternative participant in the criminal
justice process (the judge) stands ready to do this (and can
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Jackson, J., dissenting
do it quite well, with the fexibility her role affords), I foresee
many
practical obstacles to jury factfnding concerning this
particular recidivism fact, not the least of which is that evi-
dence required to make the occasions determination with
any reliability may not be in a form suitable for submission
to a jury, or simply may no longer exist.
Issues concerning the state of the evidence with respect
to decades-old past crimes could be why, between Wooden
and now, most sentencing judges have made ACCA's occa-
sions fnding based solely on so-called Shepard documents,
which “include judicial records, plea agreements, and collo-
quies between a judge and the defendant” from the past
criminal proceeding. Ante, at 839. In the context of a sen-
tencing hearing, a judge—who, after all, has professional fa-
miliarity with these kinds of records—can consider such doc-
uments with minimal effort. Judges know how to interpret
these sorts of court records. Additionally, during sentenc-
ing proceedings, parties' arguments and evidence are not re-
stricted, so based on what the parties fnd, as well as what
evidence still exists, arguments can be made directly to the
judge about whether the occasions inquiry is satisfed, includ-
ing arguments that speak directly to imperfect recordkeep-
ing and any potentially material gaps.
Not so for a jury trial—at least not easily. There is a
good reason why lawyers present live witnesses to juries:
Showing the cold record documenting an event to a jury has
much less value. At a minimum, a jury tasked with making
the occasions fnding would likely need an explanation of
what the Shepard documents say, and in this adversarial con-
text, that explanation could probably not be provided by the
lawyers on their own—it would most likely have to take the
form of witness testimony.
And if we were to authorize juries to go beyond the Shep-
ard documents related to past crimes in order to make the
occasions fnding, that inquiry would probably be even more
diffcult to conduct reliably. Why? First, because, presum-
ably, the original evidence and witnesses related to a defend-

896 ERLINGER
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Jackson, J., dissenting
ant's past crimes would have to be somehow located and
produced,
despite the passage of time and potential chain-of-
custody issues. Then, once we overcome those hurdles, the
rules of evidence would most likely come into play—screen-
ing out potentially probative considerations. By compari-
son, a sentencing judge can account for imperfections in the
evidentiary records and is permitted to consider all manner
of inadmissible evidence (such as out-of-court affdavits or
hearsay testimony) in order to sentence. See Williams, 337
U. S., at 246.
4
Also, in terms of the most effcient use of the justice sys-
tem's limited resources, any witnesses could testify in narra-
tive form when appearing before a sentencing judge as a
factfnder, at a hearing designated for this purpose, without
requiring examination by lawyers. In a jury trial, by con-
trast, such evidence would likely have to satisfy “strict evi-
dentiary procedural limitations,” ibid., such as direct, cross,
and redirect examination. That may prove particularly and
prohibitively cumbersome for the occasions inquiry, which is
one small piece of the larger sentencing puzzle.
All of these practical considerations lead me to believe that
insisting that juries make factual determinations about a
defendant's past criminal behavior—and especially the “in-
tensely factual” one at issue here, ante, at 828—is not only
unwise but unworkable. Again, how will juries of today ac-
tually determine what happened—and why—with respect to
long-forgotten crimes of yesteryear? Who will testify about
those crimes (who is still around and remembers)? And
4
Some courts have held that sentencing judges cannot consider any evi-
dence other than Shepard documents when undertaking ACCA's occasions
inquiry. See, e. g., United States v. Elliott, 703 F. 3d 378, 382 (CA7 2012).
But, in general, those conclusions appear to rest on a misunderstanding of
the scope of a judge's power to fnd recidivism facts. As I have explained,
judges have long been able to make factual fndings for sentencing pur-
poses by considering all manner of evidence, and they are well equipped
to consider any relevant evidence in making recidivism fndings.
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Jackson, J., dissenting
where is the physical evidence that was originally used to
try
those cases now?
These kinds of challenges present one obvious reason that,
even as the Apprendi Court held that the Constitution pro-
hibits judges from fnding facts “that increas[e] the penalty
for a crime beyond the prescribed statutory maximum,” it
also included an express exemption—“[o]ther than the fact
of a prior conviction.” 530 U. S., at 490. Perhaps the Court
saw ft to expressly exclude the fact of a prior conviction
from its original holding in Apprendi because of the reality
that requiring juries to fnd recidivism facts is simply not
doable. See id., at 555 (Breyer, J., dissenting) (emphasizing
“the impractical nature” of the Apprendi rule).
But, hey, says today's majority, why should unrealistic ex-
pectations stop the Court from nonetheless requiring this
to be done? Not one to be attentive to practical realities,
especially when it believes it has constitutional theory on its
side, the majority now plows forward, pushing the Apprendi
doctrine into the realm of facts related to recidivism, which
Apprendi had excluded, and which lower courts have nearly
uniformly reserved for sentencing judges in the two decades
since that opinion issued.
The bottom line is this: Unlike juries, judges have the
competency, wherewithal, and fexibility to assess facts re-
lated to defendants' past crimes and to handle, in a balanced
way, the various practical problems that reliance on that
kind of evidence raises. All things considered, then, com-
mitting the factfnding exercise related to ACCA's occasions
inquiry to judges is by far more effcient, and probably more
fair to participants in the justice system overall, than requir-
ing juries to make that fnding. For this reason, too, this
Court should have continued to allow judges to do what they
have always done and what they do best—make factual fnd-
ings related to a defendant's criminal history, as Apprendi
seems to permit, through its acceptance of Almendarez-
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898 ERLINGER
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***
J
udges take into account all kinds of facts about a criminal
offense and the defendant when sentencing—they always
have, and they always will. Doing so is, in fact, how a judge
goes about determining what sentence to impose in a given
case. Thus, the notion that it is possible for judges to fnd
facts in order to “lower” but not “increase” a defendant's
sentence, ante, at 835–836, n. 1 (emphasis deleted), is a theo-
retical concept that bears no relationship to how sentencing
actually works in a courtroom.
This might well be why, in reality, judges have continued
to fnd facts that relate to the penalties they impose on crimi-
nal defendants (even facts that they ultimately rely on to
give a higher sentence than the defendant may have other-
wise received) regardless of this Court's pronouncements
purporting to vindicate defendants' constitutional rights by
giving juries the responsibility to make those particular fac-
tual determinations. Ultimately, then, all the Apprendi
rule accomplishes on the ground is impeding legislative di-
rectives to courts about the exercise of judicial discretion
when sentencing—a development that, in my view, does not
redound to the beneft of defendants collectively, the criminal
justice system, or our democratic society.
In any event, before today, recidivism facts in particular
have been specifcally reserved for judges to determine; Ap-
prendi itself expressly exempted the fact of a prior convic-
tion from the rule it was announcing. I would not extend
the Apprendi rule to cover this kind of factfnding now, espe-
cially since applying Apprendi to recidivism facts creates a
host of practical problems that pertain to fairness and eff-
ciency. Because the Court applies the Apprendi doctrine to
recidivism fndings when it did not have to do so, and also
reaches that conclusion without concern for the myriad prac-
tical diffculties that arise from this determination, I respect-
fully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 879, line 11 from bottom: “and” is replaced with “or”
p. 880, line 9: “of ” is replaced with “for”
p. 898, line 8 from bottom: “of ” is inserted after “kind”