HARRIS v. UNITED STATES

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545 OCTOBER TERM, 2001
Syllabus
HARRIS v. UNITED STATES
certiorari to the united states court of appeals for
the fourth circuit
No. 00–10666. Argued March 25, 2002—Decided June 24, 2002
Petitioner, who sold illegal narcotics at his pawnshop with an unconcealed
semiautomatic pistol at his side, was arrested for violating, inter alia,
18 U. S. C. § 924(c)(1)(A), which provides in relevant part that a person
who in relation to a drug trafficking crime uses or carries a firearm
“shall, in addition to the punishment provided for such crime,” “(i) be
sentenced to a term of imprisonment of not less than 5 years; (ii) if the
firearm is brandished, be sentenced to . . . not less than 7 years; and (iii)
if the firearm is discharged, be sentenced to . . . not less than 10 years.”
Because the Government proceeded on the assumption that the provi-
sion defines a single crime and that brandishing is a sentencing factor
to be found by the judge following trial, the indictment said nothing
about brandishing or subsection (ii), simply alleging the elements from
the principal paragraph. Petitioner was convicted. When his presen-
tence report recommended that he receive the 7-year minimum sen-
tence, he objected, arguing that brandishing was an element of a sepa-
rate statutory offense for which he was not indicted or convicted. At
the sentencing hearing, the District Court overruled his objection, found
that he had brandished the gun, and sentenced him to seven years in
prison. Affirming, the Fourth Circuit rejected petitioner’s statutory
argument and found that McMillan v. Pennsylvania, 477 U. S. 79, fore-
closed his argument that if brandishing is a sentencing factor, the stat-
ute is unconstitutional under Apprendi v. New Jersey, 530 U. S. 466. In
Apprendi, this Court held that other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum is, in effect, an element of the crime, which must be
submitted to a jury, and proved beyond a reasonable doubt (and, in fed-
eral prosecutions, alleged in an indictment handed down by a grand
jury). But 14 years earlier, McMillan sustained a statute that in-
creased the minimum penalty for a crime, though not beyond the statu-
tory maximum, when the judge found that the defendant had possessed
a firearm.
Held: The judgment is affirmed.
243 F. 3d 806, affirmed.
Justice Kennedy delivered the opinion of the Court with respect to
Parts I, II, and IV, concluding:

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546 HARRIS v. UNITED STATES
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1. As a matter of statutory interpretation, § 924(c)(1)(A) defines a sin-
gle offense, in which brandishing and discharging are sentencing factors
to be found by the judge, not offense elements to be found by the jury.
Pp. 552–556.
(a) The prohibition’s structure suggests that brandishing and dis-
charging are sentencing factors. Federal laws usually list all offense
elements in a single sentence and separate the sentencing factors into
subsections. Castillo v. United States, 530 U. S. 120, 125. The instant
statute’s lengthy principal paragraph lists the elements of a complete
crime. Toward the end of the paragraph is the word “shall,” which
often divides offense-defining provisions from sentence-specifying ones.
Jones v. United States, 526 U. S. 227, 233. And following “shall” are
the separate subsections, which explain how defendants are to “be sen-
tenced.” Thus this Court can presume that the principal paragraph
defines a single crime and its subsections identify sentencing factors.
Pp. 552–553.
(b) As Jones illustrates, the statute’s text might provide evidence
to the contrary, but the critical textual clues here reinforce the single-
offense interpretation. Brandishing has been singled out as a paradig-
matic sentencing factor, Castillo, supra, at 126. Under the Sentencing
Guidelines, moreover, brandishing and discharging are factors that af-
fect sentences for numerous crimes. The incremental changes in the
minimum penalty at issue here are precisely what one would expect to
see in provisions meant to identify matters for the sentencing judge’s
consideration. Pp. 553–554.
(c) The canon of constitutional avoidance—which provides that
when a statute is susceptible of two constructions, the Court must adopt
the one that avoids grave and doubtful constitutional questions—plays
no role here. The constitutional principle that petitioner says a single-
offense interpretation of the statute would violate—that any fact in-
creasing the statutory minimum sentence must be accorded the safe-
guards assigned to elements—was rejected in McMillan. Petitioner’s
suggestion that the canon be used to avoid overruling one of this Court’s
own precedents is novel and, given that McMillan was in place when
§ 924(c)(1)(A) was enacted, unsound. Congress would have had no rea-
son to believe that it was approaching the constitutional line by follow-
ing the instruction this Court gave in McMillan. Pp. 554–556.
2. Reaffirming McMillan and employing the approach outlined in that
opinion, the Court concludes that § 924(c)(1)(A)(ii) is constitutional.
Basing a 2-year increase in the defendant’s minimum sentence on a judi-
cial finding of brandishing does not evade the Fifth and Sixth Amend-
ments’ requirements. Congress simply dictated the precise weight

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547 Cite as: 536 U. S. 545 (2002)
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to be given to one traditional sentencing factor. McMillan, supra, at
89–90. Pp. 568–569.
Justice Kennedy, joined by The Chief Justice, Justice O’Con-
nor, and Justice Scalia, concluded in Part III that § 924(c)(1)(A)(ii)
is constitutional under McMillan, which remains sound authority after
Apprendi. The Court will not overrule a precedent absent a special
justification. The justification offered by petitioner is that Apprendi
and McMillan cannot be reconciled. Those decisions are consistent,
however, because there is a fundamental distinction between the factual
findings at issue in those two cases. Apprendi said that any fact ex-
tending the defendant’s sentence beyond the maximum authorized by
the jury’s verdict would have been considered an element of an aggra-
vated crime by the Framers of the Bill of Rights. That cannot be said
of a fact increasing the mandatory minimum (but not extending the
sentence beyond the statutory maximum), for the jury’s verdict has au-
thorized the judge to impose the minimum with or without the finding.
This sort of fact is more like the facts judges have traditionally consid-
ered when exercising their discretion to choose a sentence within the
range authorized by the jury’s verdict—facts that the Constitution does
not require to be alleged in the indictment, submitted to the jury, or
proved beyond a reasonable doubt. Read together, McMillan and Ap-
prendi mean that those facts setting the outer limits of a sentence, and
of the judicial power to impose it, are elements of the crime for the
purposes of the constitutional analysis. Within the range authorized
by the jury’s verdict, however, the political system may channel judicial
discretion—and rely upon judicial expertise—by requiring defendants
to serve minimum terms after judges make certain factual findings.
Legislatures have relied upon McMillan’s holding, and there is no rea-
son to overturn these statutes or cast uncertainty upon sentences im-
posed under them. Pp. 556–568.
Justice Breyer concluded that although Apprendi v. New Jersey,
530 U. S. 466, cannot easily be distinguished from this case in terms of
logic, the Sixth Amendment permits judges to apply sentencing fac-
tors—whether those factors lead to a sentence beyond the statutory
maximum (as in Apprendi) or the application of a mandatory minimum
(as here). This does not mean to suggest approval of mandatory mini-
mum sentences as a matter of policy. Mandatory minimum statutes are
fundamentally inconsistent with Congress’ simultaneous effort to create
a fair, honest, and rational sentencing system through the use of the
Sentencing Guidelines. They transfer sentencing power to prosecutors,
who can determine sentences through the charges they decide to bring,
and who thereby have reintroduced much of the sentencing disparity

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548 HARRIS v. UNITED STATES
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that Congress created the Guidelines to eliminate. Applying Apprendi
in this case would not, however, lead Congress to abolish, or to modify,
such statutes; and it would take from the judge the power to make
a factual determination, while giving that power not to juries, but to
prosecutors. The legal consequences of extending Apprendi are also
seriously adverse, for doing so would diminish further Congress’ other-
wise broad constitutional authority to define crimes through the specifi-
cation of elements, to shape criminal sentences through the specification
of sentencing factors, and to limit judicial discretion in applying those
factors in particular cases. Pp. 569–572.
Kennedy, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and IV, in which Rehn-
quist, C. J., and O’Connor, Scalia, and Breyer, JJ., joined, and an opin-
ion with respect to Part III, in which Rehnquist, C. J., and O’Connor
and Scalia, JJ., joined. O’Connor, J., filed a concurring opinion, post,
p. 569. Breyer, J., filed an opinion concurring in part and concurring in
the judgment, post, p. 569. Thomas, J., filed a dissenting opinion, in which
Stevens, Souter, and Ginsburg, JJ., joined, post, p. 572.
William C. Ingram, by appointment of the Court, 534 U. S.
1160, argued the cause for petitioner. With him on the
briefs were Louis C. Allen III, Elizabeth A. Flagg, and Jef-
frey T. Green.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Olson, Assistant Attorney General Chertoff, Mat-
thew D. Roberts, and Nina Goodman.*
*Briefs of amici curiae urging reversal were filed for the Cato Institute
et al. by Stephen P. Halbrook; and for Families Against Mandatory Mini-
mums Foundation by Peter Goldberger and Mary Price.
Briefs of amici curiae urging affirmance were filed for the State of New
Jersey et al. by David Samson, Attorney General of New Jersey, and
Lisa Sarnoff Gochman, Deputy Attorney General, and by the Attorneys
General for their respective jurisdictions as follows: Bruce M. Botelho of
Alaska, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane
Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of
Illinois, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J.
Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mi-
chael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike
McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa

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Opinion of the Court
Justice Kennedy announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II, and IV, and an opinion with respect to Part III,
in which The Chief Justice, Justice O’Connor, and
Justice Scalia join.
Once more we consider the distinction the law has drawn
between the elements of a crime and factors that influence a
criminal sentence. Legislatures define crimes in terms of
the facts that are their essential elements, and constitutional
guarantees attach to these facts. In federal prosecutions,
“[n]o person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury” alleging all the elements of the crime.
U. S. Const., Amdt. 5; see Hamling v. United States, 418
U. S. 87, 117 (1974). “In all criminal prosecutions,” state
and federal, “the accused shall enjoy the right to . . . trial . . .
by an impartial jury,” U. S. Const., Amdt. 6; see Duncan v.
Louisiana, 391 U. S. 145, 149 (1968), at which the govern-
ment must prove each element beyond a reasonable doubt,
see In re Winship, 397 U. S. 358, 364 (1970).
Yet not all facts affecting the defendant’s punishment are
elements. After the accused is convicted, the judge may im-
pose a sentence within a range provided by statute, basing
it on various facts relating to the defendant and the manner
in which the offense was committed. Though these facts
may have a substantial impact on the sentence, they are not
elements, and are thus not subject to the Constitution’s in-
dictment, jury, and proof requirements. Some statutes also
direct judges to give specific weight to certain facts when
choosing the sentence. The statutes do not require these
of Nevada, Betty D. Montgomery of Ohio, D. Michael Fisher of Pennsylva-
nia, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John
Cornyn of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont,
Elliot M. Davis of the Virgin Islands, and Darrell V. McGraw, Jr., of
West Virginia; and for the Criminal Justice Legal Foundation by Kent
S. Scheidegger and Charles L. Hobson.

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550 HARRIS v. UNITED STATES
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facts, sometimes referred to as sentencing factors, to be al-
leged in the indictment, submitted to the jury, or established
beyond a reasonable doubt.
The Constitution permits legislatures to make the distinc-
tion between elements and sentencing factors, but it imposes
some limitations as well. For if it did not, legislatures could
evade the indictment, jury, and proof requirements by label-
ing almost every relevant fact a sentencing factor. The
Court described one limitation in this respect two Terms ago
in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000): “Other
than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory max-
imum,” whether the statute calls it an element or a sentenc-
ing factor, “must be submitted to a jury, and proved beyond
a reasonable doubt.” Fourteen years before, in McMillan
v. Pennsylvania, 477 U. S. 79 (1986), the Court had declined
to adopt a more restrictive constitutional rule. McMillan
sustained a statute that increased the minimum penalty for
a crime, though not beyond the statutory maximum, when
the sentencing judge found, by a preponderance of the evi-
dence, that the defendant had possessed a firearm.
The principal question before us is whether McMillan
stands after Apprendi.
I
Petitioner William Joseph Harris sold illegal narcotics out
of his pawnshop with an unconcealed semiautomatic pistol at
his side. He was later arrested for violating federal drug
and firearms laws, including 18 U. S. C. § 924(c)(1)(A). That
statute provides in relevant part:
“[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime . . . uses or carries
a firearm, or who, in furtherance of any such crime, pos-
sesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime—

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“(i) be sentenced to a term of imprisonment of not
less than 5 years;
“(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
“(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.”
The Government proceeded on the assumption that
§ 924(c)(1)(A) defines a single crime and that brandishing is
a sentencing factor to be considered by the judge after the
trial. For this reason the indictment said nothing of bran-
dishing and made no reference to subsection (ii). Instead,
it simply alleged the elements from the statute’s principal
paragraph: that “during and in relation to a drug trafficking
crime,” petitioner had “knowingly carr[ied] a firearm.” At
a bench trial the United States District Court for the Middle
District of North Carolina found petitioner guilty as charged.
Following his conviction, the presentence report recom-
mended that petitioner be given the 7-year minimum be-
cause he had brandished the gun. Petitioner objected, cit-
ing this Court’s decision in Jones v. United States, 526 U. S.
227 (1999), and arguing that, as a matter of statutory inter-
pretation, brandishing is an element of a separate offense, an
offense for which he had not been indicted or tried. At the
sentencing hearing the District Court overruled the objec-
tion, found by a preponderance of the evidence that peti-
tioner had brandished the gun, and sentenced him to seven
years in prison.
In the Court of Appeals for the Fourth Circuit petitioner
again pressed his statutory argument. He added that if
brandishing is a sentencing factor as a statutory matter,
the statute is unconstitutional in light of Apprendi—even
though, as petitioner acknowledged, the judge’s finding did
not alter the maximum penalty to which he was exposed.
Rejecting these arguments, the Court of Appeals affirmed.
243 F. 3d 806 (2001). Like every other Court of Appeals to
have addressed the question, it held that the statute makes

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552 HARRIS v. UNITED STATES
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brandishing a sentencing factor. Id., at 812; accord, United
States v. Barton, 257 F. 3d 433, 443 (CA5 2001); United States
v. Carlson, 217 F. 3d 986, 989 (CA8 2000); United States v.
Pounds, 230 F. 3d 1317, 1319 (CA11 2000). The court also
held that the constitutional argument was foreclosed by Mc-
Millan. 243 F. 3d, at 809.
We granted certiorari, 534 U. S. 1064 (2001), and now
affirm.
II
We must first answer a threshold question of statutory
construction: Did Congress make brandishing an element or
a sentencing factor in § 924(c)(1)(A)? In the Government’s
view the text in question defines a single crime, and the facts
in subsections (ii) and (iii) are considerations for the sentenc-
ing judge. Petitioner, on the other hand, contends that Con-
gress meant the statute to define three different crimes.
Subsection (ii), he says, creates a separate offense of which
brandishing is an element. If petitioner is correct, he was
neither indicted nor tried for that offense, and the 7-year
minimum did not apply.
So we begin our analysis by asking what § 924(c)(1)(A)
means. The statute does not say in so many words whether
brandishing is an element or a sentencing factor, but the
structure of the prohibition suggests it is the latter. Fed-
eral laws usually list all offense elements “in a single sen-
tence” and separate the sentencing factors “into subsec-
tions.” Castillo v. United States, 530 U. S. 120, 125 (2000).
Here, § 924(c)(1)(A) begins with a lengthy principal para-
graph listing the elements of a complete crime—“the basic
federal offense of using or carrying a gun during and in rela-
tion to” a violent crime or drug offense. Id., at 124. To-
ward the end of the paragraph is “the word ‘shall,’ which
often divides offense-defining provisions from those that
specify sentences.” Jones, 526 U. S., at 233. And following
“shall” are the separate subsections, which explain how de-
fendants are to “be sentenced.” Subsection (i) sets a catch-

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all minimum and “certainly adds no further element.” Ibid.
Subsections (ii) and (iii), in turn, increase the minimum pen-
alty if certain facts are present, and those subsections do not
repeat the elements from the principal paragraph.
When a statute has this sort of structure, we can presume
that its principal paragraph defines a single crime and its
subsections identify sentencing factors. But even if a stat-
ute “has a look to it suggesting that the numbered subsec-
tions are only sentencing provisions,” id., at 232, the text
might provide compelling evidence to the contrary. This
was illustrated by the Court’s decision in Jones, in which the
federal carjacking statute, which had a similar structure, was
interpreted as setting out the elements of multiple offenses.
The critical textual clues in this case, however, reinforce
the single-offense interpretation implied by the statute’s
structure. Tradition and past congressional practice, for ex-
ample, were perhaps the most important guideposts in Jones.
The fact at issue there—serious bodily injury—is an element
in numerous federal statutes, including two on which the car-
jacking statute was modeled; and the Jones Court doubted
that Congress would have made this fact a sentencing factor
in one isolated instance. Id., at 235–237; see also Castillo,
supra, at 126–127; Almendarez-Torres v. United States, 523
U. S. 224, 230 (1998). In contrast, there is no similar federal
tradition of treating brandishing and discharging as offense
elements. In Castillo v. United States, supra, the Court
singled out brandishing as a paradigmatic sentencing factor:
“Traditional sentencing factors often involve . . . special fea-
tures of the manner in which a basic crime was carried out
(e. g., that the defendant . . . brandished a gun).” Id., at 126.
Under the Sentencing Guidelines, moreover, brandishing
and discharging affect the sentences for numerous federal
crimes. See, e. g., United States Sentencing Commission,
Guidelines Manual §§ 2A2.2(b)(2), 2B3.1(b)(2), 2B3.2(b)(3)(A),
2E2.1(b)(1), 2L1.1(b)(4) (Nov. 2001). Indeed, the Guidelines
appear to have been the only antecedents for the statute’s

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554 HARRIS v. UNITED STATES
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brandishing provision. The term “brandished” does not ap-
pear in any federal offense-defining provision save 18 U. S. C.
§ 924(c)(1)(A), and did not appear there until 1998, when the
statute was amended to take its current form. The num-
bered subsections were added then, describing, as sentencing
factors often do, “special features of the manner in which”
the statute’s “basic crime” could be carried out. Castillo,
supra, at 126. It thus seems likely that brandishing and dis-
charging were meant to serve the same function under the
statute as they do under the Guidelines.
We might have had reason to question that inference if
brandishing or discharging altered the defendant’s punish-
ment in a manner not usually associated with sentencing fac-
tors. Jones is again instructive. There the Court accorded
great significance to the “steeply higher penalties” author-
ized by the carjacking statute’s three subsections, which en-
hanced the defendant’s maximum sentence from 15 years, to
25 years, to life—enhancements the Court doubted Congress
would have made contingent upon judicial factfinding. 526
U. S., at 233; see also Castillo, supra, at 131; Almendarez-
Torres, supra, at 235–236. The provisions before us now,
however, have an effect on the defendant’s sentence that is
more consistent with traditional understandings about how
sentencing factors operate; the required findings constrain,
rather than extend, the sentencing judge’s discretion. Sec-
tion 924(c)(1)(A) does not authorize the judge to impose
“steeply higher penalties”—or higher penalties at all—once
the facts in question are found. Since the subsections alter
only the minimum, the judge may impose a sentence well in
excess of seven years, whether or not the defendant bran-
dished the firearm. The incremental changes in the mini-
mum—from 5 years, to 7, to 10—are precisely what one
would expect to see in provisions meant to identify matters
for the sentencing judge’s consideration.
Nothing about the text or history of the statute rebuts the
presumption drawn from its structure. Against the single-

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offense interpretation to which these considerations point,
however, petitioner invokes the canon of constitutional
avoidance. Under that doctrine, when “a statute is suscepti-
ble of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.”
United States ex rel. Attorney General v. Delaware & Hud-
son Co., 213 U. S. 366, 408 (1909). It is at least an open ques-
tion, petitioner contends, whether the Fifth and Sixth
Amendments require every fact increasing a federal defend-
ant’s minimum sentence to be alleged in the indictment, sub-
mitted to the jury, and proved beyond a reasonable doubt.
To avoid resolving that question (and possibly invalidating
the statute), petitioner urges, we should read § 924(c)(1)(A)
as making brandishing an element of an aggravated federal
crime.
The avoidance canon played a role in Jones, for the subsec-
tions of the carjacking statute enhanced the maximum sen-
tence, and a single-offense interpretation would have impli-
cated constitutional questions later addressed—and resolved
in the defendant’s favor—by Apprendi. See Jones, supra,
at 243, n. 6 (“[A]ny fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a
reasonable doubt”). Yet the canon has no role to play here.
It applies only when there are serious concerns about the
statute’s constitutionality, Reno v. Flores, 507 U. S. 292, 314,
n. 9 (1993), and petitioner’s proposed rule—that the Consti-
tution requires any fact increasing the statutory minimum
sentence to be accorded the safeguards assigned to ele-
ments—was rejected 16 years ago in McMillan. Petitioner
acknowledges as much but argues that recent developments
cast doubt on McMillan’s viability. To avoid deciding
whether McMillan must be overruled, he says, we should
construe the problem out of the statute.

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556 HARRIS v. UNITED STATES
Opinion of Kennedy, J.
Petitioner’s suggestion that we use the canon to avoid
overruling one of our own precedents is novel and, given
that McMillan was in place when § 924(c)(1)(A) was enacted,
unsound. The avoidance canon rests upon our “respect for
Congress, which we assume legislates in the light of consti-
tutional limitations.” Rust v. Sullivan, 500 U. S. 173, 191
(1991). The statute at issue in this case was passed when
McMillan provided the controlling instruction, and Con-
gress would have had no reason to believe that it was ap-
proaching the constitutional line by following that instruc-
tion. We would not further the canon’s goal of eliminating
friction with our coordinate branch, moreover, if we allevi-
ated our doubt about a constitutional premise we had sup-
plied by adopting a strained reading of a statute that Con-
gress had enacted in reliance on the premise. And if we
stretched the text to avoid the question of McMillan’s con-
tinuing vitality, the canon would embrace a dynamic view of
statutory interpretation, under which the text might mean
one thing when enacted yet another if the prevailing view of
the Constitution later changed. We decline to adopt that
approach.
As the avoidance canon poses no obstacle and the interpre-
tive circumstances point in a common direction, we conclude
that, as a matter of statutory interpretation, § 924(c)(1)(A)
defines a single offense. The statute regards brandishing
and discharging as sentencing factors to be found by the
judge, not offense elements to be found by the jury.
III
Confident that the statute does just what McMillan
said it could, we consider petitioner ’s argument that
§ 924(c)(1)(A)(ii) is unconstitutional because McMillan is no
longer sound authority. Stare decisis is not an “inexorable
command,” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393,
405 (1932) (Brandeis, J., dissenting), but the doctrine is “of
fundamental importance to the rule of law,” Welch v. Texas

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Opinion of Kennedy, J.
Dept. of Highways and Public Transp., 483 U. S. 468, 494
(1987). Even in constitutional cases, in which stare decisis
concerns are less pronounced, we will not overrule a prece-
dent absent a “special justification.” Arizona v. Rumsey,
467 U. S. 203, 212 (1984).
The special justification petitioner offers is our decision in
Apprendi, which, he says, cannot be reconciled with McMil-
lan. Cf. Ring v. Arizona, post, at 609 (overruling Walton
v. Arizona, 497 U. S. 639 (1990), because “Walton and Ap-
prendi are irreconcilable”). We do not find the argument
convincing. As we shall explain, McMillan and Apprendi
are consistent because there is a fundamental distinction be-
tween the factual findings that were at issue in those two
cases. Apprendi said that any fact extending the defend-
ant’s sentence beyond the maximum authorized by the jury’s
verdict would have been considered an element of an aggra-
vated crime—and thus the domain of the jury—by those who
framed the Bill of Rights. The same cannot be said of a fact
increasing the mandatory minimum (but not extending the
sentence beyond the statutory maximum), for the jury’s ver-
dict has authorized the judge to impose the minimum with
or without the finding. As McMillan recognized, a statute
may reserve this type of factual finding for the judge without
violating the Constitution.
Though defining criminal conduct is a task generally “left
to the legislative branch,” Patterson v. New York, 432 U. S.
197, 210 (1977), Congress may not manipulate the definition
of a crime in a way that relieves the Government of its con-
stitutional obligations to charge each element in the indict-
ment, submit each element to the jury, and prove each ele-
ment beyond a reasonable doubt, Jones, 526 U. S., at 240–241;
Mullaney v. Wilbur, 421 U. S. 684, 699 (1975). McMillan
and Apprendi asked whether certain types of facts, though
labeled sentencing factors by the legislature, were neverthe-
less “traditional elements” to which these constitutional safe-

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guards were intended to apply. Patterson v. New York,
supra, at 211, n. 12.
McMillan’s answer stemmed from certain historical and
doctrinal understandings about the role of the judge at sen-
tencing. The mid-19th century produced a general shift in
this country from criminal statutes “providing fixed-term
sentences to those providing judges discretion within a per-
missible range.” Apprendi, 530 U. S., at 481. Under these
statutes, judges exercise their sentencing discretion through
“an inquiry broad in scope, largely unlimited either as to the
kind of information [they] may consider, or the source from
which it may come.” United States v. Tucker, 404 U. S. 443,
446 (1972). The Court has recognized that this process is
constitutional—and that the facts taken into consideration
need not be alleged in the indictment, submitted to the jury,
or proved beyond a reasonable doubt. See, e. g., United
States v. Watts, 519 U. S. 148, 156 (1997) (per curiam); Nich-
ols v. United States, 511 U. S. 738, 747 (1994); Williams v.
New York, 337 U. S. 241, 246 (1949). As the Court reiterated
in Jones: “It is not, of course, that anyone today would claim
that every fact with a bearing on sentencing must be found
by a jury; we have resolved that general issue and have no
intention of questioning its resolution.” 526 U. S., at 248.
Judicial factfinding in the course of selecting a sentence
within the authorized range does not implicate the indict-
ment, jury-trial, and reasonable-doubt components of the
Fifth and Sixth Amendments.
That proposition, coupled with another shift in prevailing
sentencing practices, explains McMillan. In the latter part
of the 20th century, many legislatures, dissatisfied with sen-
tencing disparities among like offenders, implemented meas-
ures regulating judicial discretion. These systems main-
tained the statutory ranges and the judge’s factfinding role
but assigned a uniform weight to factors judges often relied
upon when choosing a sentence. See, e. g., Payne v. Tennes-
see, 501 U. S. 808, 820 (1991). One example of reform, the

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559 Cite as: 536 U. S. 545 (2002)
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kind addressed in McMillan, was mandatory minimum
sentencing. The Pennsylvania Mandatory Minimum Sen-
tencing Act, 42 Pa. Cons. Stat. § 9712 (1982), imposed a mini-
mum prison term of five years when the sentencing judge
found, by a preponderance of the evidence, that the defend-
ant had possessed a firearm while committing the crime of
conviction.
In sustaining the statute the McMillan Court placed con-
siderable reliance on the similarity between the sentencing
factor at issue and the facts judges contemplate when exer-
cising their discretion within the statutory range. Given
that the latter are not elements of the crime, the Court ex-
plained, neither was the former:
“Section 9712 neither alters the maximum penalty for
the crime committed nor creates a separate offense call-
ing for a separate penalty; it operates solely to limit
the sentencing court’s discretion in selecting a penalty
within the range already available to it without the spe-
cial finding of visible possession of a firearm. Section
9712 ‘ups the ante’ for the defendant only by raising to
five years the minimum sentence which may be imposed
within the statutory plan. . . . Petitioners’ claim that
visible possession under the Pennsylvania statute is
‘really’ an element of the offenses for which they are
being punished . . . would have at least more superficial
appeal if a finding of visible possession exposed them to
greater or additional punishment, . . . but it does not.”
477 U. S., at 87–88 (footnote omitted).
In response to the argument that the Act evaded the Consti-
tution’s procedural guarantees, the Court noted that the
statute “simply took one factor that has always been consid-
ered by sentencing courts to bear on punishment . . . and
dictated the precise weight to be given that factor.” Id.,
at 89–90.

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560 HARRIS v. UNITED STATES
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That reasoning still controls. If the facts judges consider
when exercising their discretion within the statutory range
are not elements, they do not become as much merely be-
cause legislatures require the judge to impose a minimum
sentence when those facts are found—a sentence the judge
could have imposed absent the finding. It does not matter,
for the purposes of the constitutional analysis, that in stat-
utes like the Pennsylvania Act the “State provides” that a
fact “shall give rise both to a special stigma and to a special
punishment.” Id., at 103 (Stevens, J., dissenting). Judges
choosing a sentence within the range do the same, and
“[j]udges, it is sometimes necessary to remind ourselves, are
part of the State.” Apprendi, supra, at 498 (Scalia, J., con-
curring). These facts, though stigmatizing and punitive,
have been the traditional domain of judges; they have not
been alleged in the indictment or proved beyond a reason-
able doubt. There is no reason to believe that those who
framed the Fifth and Sixth Amendments would have thought
of them as the elements of the crime.
This conclusion might be questioned if there were exten-
sive historical evidence showing that facts increasing the de-
fendant’s minimum sentence (but not affecting the maxi-
mum) have, as a matter of course, been treated as elements.
The evidence on this score, however, is lacking. Statutes
like the Pennsylvania Act, which alter the minimum sentence
without changing the maximum, were for the most part the
product of the 20th century, when legislatures first asserted
control over the sentencing judge’s discretion. Courts at
the founding (whose views might be relevant, given the con-
temporaneous adoption of the Bill of Rights, see Apprendi,
530 U. S., at 478–484) and in the mid-19th century (whose
views might be relevant, given that sentencing ranges first
arose then, see id., at 501–518 (Thomas, J., concurring)) were
not as a general matter required to decide whether a fact
giving rise to a mandatory minimum sentence within the
available range was to be alleged in the indictment and

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561 Cite as: 536 U. S. 545 (2002)
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proved to the jury. See King & Klein, Essential Elements,
54 Vand. L. Rev. 1467, 1474–1477 (2001). Indeed, though
there is no clear record of how history treated these facts, it
is clear that they did not fall within the principle by which
history determined what facts were elements. That princi-
ple defined elements as “fact[s] . . . legally essential to the
punishment to be inflicted.” United States v. Reese, 92 U. S.
214, 232 (1876) (Clifford, J., dissenting) (citing 1 J. Bishop,
Law of Criminal Procedure § 81, p. 51 (2d ed. 1872)). This
formulation includes facts that, as McMillan put it, “alte[r]
the maximum penalty,” 477 U. S., at 87, but it does not in-
clude facts triggering a mandatory minimum. The mini-
mum may be imposed with or without the factual finding;
the finding is by definition not “essential” to the defendant’s
punishment.
McMillan was on firm historical ground, then, when it
held that a legislature may specify the condition for a manda-
tory minimum without making the condition an element of
the crime. The fact of visible firearm possession was more
like the facts considered by judges when selecting a sentence
within the statutory range—facts that, as the authorities
from the 19th century confirm, have never been charged in
the indictment, submitted to the jury, or proved beyond a
reasonable doubt:
“[W]ithin the limits of any discretion as to the punish-
ment which the law may have allowed, the judge, when
he pronounces sentence, may suffer his discretion to be
influenced by matter shown in aggravation or mitiga-
tion, not covered by the allegations of the indictment.
Where the law permits the heaviest punishment, on a
scale laid down, to be inflicted, and has merely com-
mitted to the judge the authority to interpose its mercy
and inflict a punishment of a lighter grade, no rights of
the accused are violated though in the indictment there
is no mention of mitigating circumstances. The aggra-
vating circumstances spoken of cannot swell the penalty

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562 HARRIS v. UNITED STATES
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above what the law has provided for the acts charged
against the prisoner, and they are interposed merely to
check the judicial discretion in the exercise of the per-
mitted mercy. This is an entirely different thing from
punishing one for what is not alleged against him.”
Bishop, Criminal Procedure § 85, at 54.
Since sentencing ranges came into use, defendants have not
been able to predict from the face of the indictment precisely
what their sentence will be; the charged facts have simply
made them aware of the “heaviest punishment” they face if
convicted. Ibid. Judges, in turn, have always considered
uncharged “aggravating circumstances” that, while increas-
ing the defendant’s punishment, have not “swell[ed] the pen-
alty above what the law has provided for the acts charged.”
Ibid. Because facts supporting a mandatory minimum fit
squarely within that description, the legislature’s choice to
entrust them to the judge does not implicate the “com-
petition . . . between judge and jury over . . . their respective
roles,” Jones, 526 U. S., at 245, that is the central concern of
the Fifth and Sixth Amendments.
At issue in Apprendi, by contrast, was a sentencing factor
that did “swell the penalty above what the law has pro-
vided,” Bishop, supra, § 85, at 54, and thus functioned more
like a “traditional elemen[t].” Patterson v. New York, 432
U. S., at 211, n. 12. The defendant had been convicted of
illegal possession of a firearm, an offense for which New Jer-
sey law prescribed a maximum of 10 years in prison. See
N. J. Stat. Ann. §§ 2C:39–4(a), 2C:43–6(a)(2) (1995). He was
sentenced to 12 years, however, because a separate statute
permitted an enhancement when the judge found, by a pre-
ponderance of the evidence, that the defendant “acted with
a purpose to intimidate an individual or group of individuals
because of race.” § 2C:44–3(e) (Supp. 2001–2002).
The Court held that the enhancement was unconstitu-
tional. “[O]ur cases in this area, and . . . the history upon
which they rely,” the Court observed, confirmed the constitu-

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563 Cite as: 536 U. S. 545 (2002)
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tional principle first identified in Jones: “Other 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. Those facts, Apprendi held, were what
the Framers had in mind when they spoke of “crimes” and
“criminal prosecutions” in the Fifth and Sixth Amendments:
A crime was not alleged, and a criminal prosecution not com-
plete, unless the indictment and the jury verdict included all
the facts to which the legislature had attached the maximum
punishment. Any “fact that . . . exposes the criminal de-
fendant to a penalty exceeding the maximum he would re-
ceive if punished according to the facts reflected in the jury
verdict alone,” the Court concluded, id., at 483, would have
been, under the prevailing historical practice, an element of
an aggravated offense. See id., at 479–481; see also id., at
501–518 (Thomas, J., concurring).
Apprendi’s conclusions do not undermine McMillan’s.
There was no comparable historical practice of submitting
facts increasing the mandatory minimum to the jury, so the
Apprendi rule did not extend to those facts. Indeed, the
Court made clear that its holding did not affect McMillan
at all:
“We do not overrule McMillan. We limit its holding to
cases that do not involve the imposition of a sentence
more severe than the statutory maximum for the offense
established by the jury’s verdict—a limitation identified
in the McMillan opinion itself.” 530 U. S., at 487, n. 13.
The sentencing factor in McMillan did not increase “the
penalty for a crime beyond the prescribed statutory maxi-
mum,” 530 U. S., at 490; nor did it, as the concurring opinions
in Jones put it, “alter the congressionally prescribed range
of penalties to which a criminal defendant is exposed,” 526
U. S., at 253 (Scalia, J., concurring). As the Apprendi
Court observed, the McMillan finding merely required the

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564 HARRIS v. UNITED STATES
Opinion of Kennedy, J.
judge to impose “a specific sentence within the range author-
ized by the jury’s finding that the defendant [was] guilty.”
530 U. S., at 494, n. 19; see also Jones, supra, at 242 (“[T]he
Winship issue [in McMillan] rose from a provision that a
judge’s finding (by a preponderance) of visible possession of
a firearm would require a mandatory minimum sentence for
certain felonies, but a minimum that fell within the sentenc-
ing ranges otherwise prescribed”).
As its holding and the history on which it was based would
suggest, the Apprendi Court’s understanding of the Consti-
tution is consistent with the holding in McMillan. Facts
extending the sentence beyond the statutory maximum had
traditionally been charged in the indictment and submitted
to the jury, Apprendi said, because the function of the indict-
ment and jury had been to authorize the State to impose
punishment:
“The evidence . . . that punishment was, by law, tied to
the offense . . . and the evidence that American judges
have exercised sentencing discretion within a legally
prescribed range . . . point to a single, consistent conclu-
sion: The judge’s role in sentencing is constrained at its
outer limits by the facts alleged in the indictment and
found by the jury. Put simply, facts that expose a de-
fendant to a punishment greater than that otherwise le-
gally prescribed were by definition ‘elements’ of a sepa-
rate legal offense.” 530 U. S., at 483, n. 10.
The grand and petit juries thus form a “ ‘strong and two-fold
barrier . . . between the liberties of the people and the pre-
rogative of the [government].’ ” Duncan v. Louisiana, 391
U. S., at 151 (quoting W. Blackstone, Commentaries on the
Laws of England 349 (T. Cooley ed. 1899)). Absent authori-
zation from the trial jury—in the form of a finding, by proof
beyond a reasonable doubt, of the facts warranting the ex-
tended sentence under the New Jersey statute—the State
had no power to sentence the defendant to more than

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565 Cite as: 536 U. S. 545 (2002)
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10 years, the maximum “authorized by the jury’s guilty
verdict.” Apprendi, 530 U. S., at 494. “[T]hose facts that
determine the maximum sentence the law allows,” then, are
necessarily elements of the crime. Id., at 499 (Scalia, J.,
concurring).
Yet once the jury finds all those facts, Apprendi says that
the defendant has been convicted of the crime; the Fifth and
Sixth Amendments have been observed; and the Govern-
ment has been authorized to impose any sentence below the
maximum. That is why, as Apprendi noted, “nothing in this
history suggests that it is impermissible for judges to exer-
cise discretion—taking into consideration various factors re-
lating both to offense and offender—in imposing a judgment
within the range.” Id., at 481. That is also why, as McMil-
lan noted, nothing in this history suggests that it is imper-
missible for judges to find facts that give rise to a mandatory
minimum sentence below “the maximum penalty for the
crime committed.” 477 U. S., at 87–88. In both instances
the judicial factfinding does not “expose a defendant to a
punishment greater than that otherwise legally prescribed.”
Apprendi, supra, at 483, n. 10. Whether chosen by the
judge or the legislature, the facts guiding judicial discretion
below the statutory maximum need not be alleged in the
indictment, submitted to the jury, or proved beyond a rea-
sonable doubt. When a judge sentences the defendant to a
mandatory minimum, no less than when the judge chooses a
sentence within the range, the grand and petit juries already
have found all the facts necessary to authorize the Govern-
ment to impose the sentence. The judge may impose the
minimum, the maximum, or any other sentence within the
range without seeking further authorization from those ju-
ries—and without contradicting Apprendi.
Petitioner argues, however, that the concerns underlying
Apprendi apply with equal or more force to facts increasing
the defendant’s minimum sentence. Those factual findings,
he contends, often have a greater impact on the defendant

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566 HARRIS v. UNITED STATES
Opinion of Kennedy, J.
than the findings at issue in Apprendi. This is so because
when a fact increasing the statutory maximum is found, the
judge may still impose a sentence far below that maximum;
but when a fact increasing the minimum is found, the judge
has no choice but to impose that minimum, even if he or
she otherwise would have chosen a lower sentence. Cf.
Almendarez-Torres, 523 U. S., at 244–245. Why, petitioner
asks, would fairness not also require the latter sort of fact
to be alleged in the indictment and found by the jury under
a reasonable-doubt standard? The answer is that because it
is beyond dispute that the judge’s choice of sentences within
the authorized range may be influenced by facts not consid-
ered by the jury, a factual finding’s practical effect cannot by
itself control the constitutional analysis. The Fifth and
Sixth Amendments ensure that the defendant “will never get
more punishment than he bargained for when he did the
crime,” but they do not promise that he will receive “any-
thing less” than that. Apprendi, supra, at 498 (Scalia, J.,
concurring). If the grand jury has alleged, and the trial jury
has found, all the facts necessary to impose the maximum,
the barriers between government and defendant fall. The
judge may select any sentence within the range, based on
facts not alleged in the indictment or proved to the jury—
even if those facts are specified by the legislature, and even
if they persuade the judge to choose a much higher sentence
than he or she otherwise would have imposed. That a fact
affects the defendant’s sentence, even dramatically so, does
not by itself make it an element.
In light of the foregoing, it is not surprising that the deci-
sions for the Court in both Apprendi and Jones insisted that
they were consistent with McMillan—and that a distinction
could be drawn between facts increasing the defendant’s
minimum sentence and facts extending the sentence beyond
the statutory maximum. See, e. g., Apprendi, supra, at 494,
n. 19 (“The term [sentencing factor] appropriately describes
a circumstance, which may be either aggravating or mitigat-

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Opinion of Kennedy, J.
ing in character, that supports a specific sentence within the
range authorized by the jury’s finding that the defendant is
guilty of a particular offense”); Jones, 526 U. S., at 242 (“Mc-
Millan, then, recognizes a question under both the Due
Process Clause of the Fourteenth Amendment and the jury
guarantee of the Sixth: . . . [M]ay judicial factfinding by a
preponderance support the application of a provision that in-
creases the potential severity of the penalty for a variant of
a given crime?”); see also Almendarez-Torres, supra, at 256
(Scalia, J., dissenting) (“[N]o one can read McMillan . . .
without perceiving that the determinative element in our
validation of the Pennsylvania statute was the fact that it
merely limited the sentencing judge’s discretion within the
range of penalty already available, rather than substantially
increasing the available sentence”). That distinction may
continue to stand. The factual finding in Apprendi ex-
tended the power of the judge, allowing him or her to impose
a punishment exceeding what was authorized by the jury.
The finding in McMillan restrained the judge’s power, limit-
ing his or her choices within the authorized range. It is
quite consistent to maintain that the former type of fact
must be submitted to the jury while the latter need not be.
Read together, McMillan and Apprendi mean that those
facts setting the outer limits of a sentence, and of the judicial
power to impose it, are the elements of the crime for the
purposes of the constitutional analysis. Within the range
authorized by the jury’s verdict, however, the political sys-
tem may channel judicial discretion—and rely upon judicial
expertise—by requiring defendants to serve minimum terms
after judges make certain factual findings. It is critical not
to abandon that understanding at this late date. Legisla-
tures and their constituents have relied upon McMillan to
exercise control over sentencing through dozens of statutes
like the one the Court approved in that case. Congress and
the States have conditioned mandatory minimum sentences
upon judicial findings that, as here, a firearm was possessed,

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568 HARRIS v. UNITED STATES
Opinion of the Court
brandished, or discharged, Ala. Code § 13A–5–6(a)(4) (1994);
Kan. Stat. Ann. § 21–4618 (1995); Minn. Stat. Ann. § 609.11
(Supp. 2002); N. J. Stat. Ann. §§ 2C:43–6(c), 6(d) (1998); or
among other examples, that the victim was over 60 years of
age, 42 Pa. Cons. Stat. § 9717(a) (1998); that the defendant
possessed a certain quantity of drugs, Ill. Comp. Stat.,
ch. 730, § 5/5–5–3(c)(2)(D) (2000); that the victim was related
to the defendant, Alaska Stat. § 12.55.125(b) (2000); and that
the defendant was a repeat offender, Md. Ann. Code, Art.
27, § 286 (Supp. 2000). We see no reason to overturn those
statutes or cast uncertainty upon the sentences imposed
under them.
IV
Reaffirming McMillan and employing the approach out-
lined in that case, we conclude that the federal provision at
issue, 18 U. S. C. § 924(c)(1)(A)(ii), is constitutional. Basing
a 2-year increase in the defendant’s minimum sentence on a
judicial finding of brandishing does not evade the require-
ments of the Fifth and Sixth Amendments. Congress “sim-
ply took one factor that has always been considered by sen-
tencing courts to bear on punishment . . . and dictated the
precise weight to be given that factor.” McMillan, 477
U. S., at 89–90. That factor need not be alleged in the in-
dictment, submitted to the jury, or proved beyond a reason-
able doubt.
The Court is well aware that many question the wisdom
of mandatory minimum sentencing. Mandatory minimums,
it is often said, fail to account for the unique circumstances
of offenders who warrant a lesser penalty. See, e. g., Brief
for Families Against Mandatory Minimums Foundation as
Amicus Curiae 25, n. 16; cf. Almendarez-Torres, supra, at
245 (citing United States Sentencing Commission, Mandatory
Minimum Penalties in the Federal Criminal Justice System
26–34 (Aug. 1991)). These criticisms may be sound, but
they would persist whether the judge or the jury found
the facts giving rise to the minimum. We hold only that the

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

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570 HARRIS v. UNITED STATES
Opinion of Breyer, J.
judgment, and I join its opinion to the extent that it holds
that Apprendi does not apply to mandatory minimums.
In saying this, I do not mean to suggest my approval of
mandatory minimum sentences as a matter of policy. Dur-
ing the past two decades, as mandatory minimum sentencing
statutes have proliferated in number and importance, judges,
legislators, lawyers, and commentators have criticized those
statutes, arguing that they negatively affect the fair adminis-
tration of the criminal law, a matter of concern to judges
and to legislators alike. See, e. g., Remarks of Chief Justice
William H. Rehnquist, Nat. Symposium on Drugs and Vio-
lence in America 9–11 (June 18, 1993); Kennedy, Hearings
before a Subcommittee of the House Committee on Appro-
priations, 103d Cong., 2d Sess., 29 (Mar. 9, 1994) (mandatory
minimums are “imprudent, unwise and often an unjust mech-
anism for sentencing”); Breyer, Federal Sentencing Guide-
lines Revisited, 14 Crim. Justice 28 (Spring 1999); Hatch, The
Role of Congress in Sentencing: The United States Sentenc-
ing Commission, Mandatory Minimum Sentences, and the
Search for a Certain and Effective Sentencing System, 28
Wake Forest L. Rev. 185, 192–196 (1993); Schulhofer, Re-
thinking Mandatory Minimums, 28 Wake Forest L. Rev. 199
(1993); Raeder, Rethinking Sentencing and Correctional Pol-
icy for Nonviolent Drug Offenders, 14 Crim. Justice 1, 53
(Summer 1999) (noting that the American Bar Association
has opposed mandatory minimum sentences since 1974).
Mandatory minimum statutes are fundamentally inconsist-
ent with Congress’ simultaneous effort to create a fair, hon-
est, and rational sentencing system through the use of Sen-
tencing Guidelines. Unlike Guideline sentences, statutory
mandatory minimums generally deny the judge the legal
power to depart downward, no matter how unusual the spe-
cial circumstances that call for leniency. See Melendez v.
United States, 518 U. S. 120, 132–133 (1996) (Breyer, J., con-
curring in part and dissenting in part); cf. Koon v. United
States, 518 U. S. 81, 95–96 (1996). They rarely reflect an ef-

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Opinion of Breyer, J.
fort to achieve sentencing proportionality—a key element of
sentencing fairness that demands that the law punish a drug
“kingpin” and a “mule” differently. They transfer sentenc-
ing power to prosecutors, who can determine sentences
through the charges they decide to bring, and who thereby
have reintroduced much of the sentencing disparity that
Congress created Guidelines to eliminate. U. S. Sentencing
Comm’n, Special Report to Congress: Mandatory Minimum
Penalties in the Federal Criminal Justice System i–iv, 31–33
(1991) (Sentencing Report); see also Schulhofer, supra, at
214–220. They rarely are based upon empirical study. See
Rehnquist, supra, at 9–10; Hatch, supra, at 198. And there
is evidence that they encourage subterfuge, leading to more
frequent downward departures (on a random basis), thereby
making them a comparatively ineffective means of guaran-
teeing tough sentences. See Sentencing Report 53.
Applying Apprendi in this case would not, however, lead
Congress to abolish, or to modify, mandatory minimum sen-
tencing statutes. Rather, it would simply require the prose-
cutor to charge, and the jury to find beyond a reasonable
doubt, the existence of the “factor,” say, the amount of
unlawful drugs, that triggers the mandatory minimum. In
many cases, a defendant, claiming innocence and arguing,
say, mistaken identity, will find it impossible simultaneously
to argue to the jury that the prosecutor has overstated the
drug amount. How, the jury might ask, could this “inno-
cent” defendant know anything about that matter? The up-
shot is that in many such cases defendant and prosecutor will
enter into a stipulation before trial as to drug amounts to be
used at sentencing (if the jury finds the defendant guilty).
To that extent, application of Apprendi would take from the
judge the power to make a factual determination, while giv-
ing that power not to juries, but to prosecutors. And such
consequences, when viewed through the prism of an open,
fair sentencing system, are seriously adverse.

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572 HARRIS v. UNITED STATES
Thomas, J., dissenting
The legal consequences of extending Apprendi to the man-
datory minimum sentencing context are also seriously ad-
verse. Doing so would diminish further Congress’ other-
wise broad constitutional authority to define crimes through
the specification of elements, to shape criminal sentences
through the specification of sentencing factors, and to limit
judicial discretion in applying those factors in particular
cases. I have discussed these matters fully in my Apprendi
dissent. See 530 U. S., at 555. For the reasons set forth
there, and in other opinions, see Jones v. United States, 526
U. S. 227, 254 (1999) (Kennedy, J., dissenting); Almendarez-
Torres v. United States, 523 U. S. 224 (1998), I would not
apply Apprendi in this case.
I consequently join Parts I, II, and IV of the Court’s opin-
ion and concur in its judgment.
Justice Thomas, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
The range of punishment to which petitioner William J.
Harris was exposed turned on the fact that he brandished a
firearm, a fact that was neither charged in his indictment
nor proved at trial beyond a reasonable doubt. The United
States Court of Appeals for the Fourth Circuit nonetheless
held, in reliance on McMillan v. Pennsylvania, 477 U. S. 79
(1986), that the fact that Harris brandished a firearm was a
mere sentencing factor to which no constitutional protections
attach. 243 F. 3d 806, 808–812 (2001).
McMillan, however, conflicts with the Court’s later de-
cision in Apprendi v. New Jersey, 530 U. S. 466 (2000), as
the dissenting opinion in Apprendi recognized. See id., at
533 (O’Connor, J., dissenting). The Court’s holding today
therefore rests on either a misunderstanding or a rejection
of the very principles that animated Apprendi just two years
ago. Given that considerations of stare decisis are at their
nadir in cases involving procedural rules implicating funda-
mental constitutional protections afforded criminal defend-

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573 Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
ants, I would reaffirm Apprendi, overrule McMillan, and
reverse the Court of Appeals.
I
Harris was indicted for distributing marijuana in viola-
tion of 21 U. S. C. § 841 and for carrying a firearm “in relation
to” a drug trafficking crime in violation of 18 U. S. C.
§ 924(c)(1)(A). Harris pleaded guilty to distributing mari-
juana but disputed that he had carried a firearm “in relation
to” a drug trafficking crime. The District Court disagreed, 1
and he was convicted by the judge, having waived his right
to trial by jury. Although the mandatory minimum prison
sentence under § 924(c)(1)(A)(i) is five years in prison, the
presentence report relied on § 924(c)(1)(A)(ii), which in-
creases the mandatory minimum prison sentence to seven
years when the firearm is brandished. 2 At sentencing, the
District Court acknowledged that it was a “close question”
whether Harris “brandished” a firearm, and noted that “[t]he
only thing that happened here is [that] he had [a gun] during
the drug transaction.” App. 231–232, 244–247. The Dis-
trict Court nonetheless found by a preponderance of the evi-
dence that Harris had brandished a firearm and as a result
sentenced him to the minimum mandatory sentence of seven
years’ imprisonment for the violation of § 924(c)(1)(A).
Relying on McMillan, the Court of Appeals affirmed the
sentence and held as a matter of statutory interpretation
that brandishing is a sentencing factor, not an element of
the § 924(c)(1)(A) offense. Accordingly, the Court of Appeals
1 Harris owned a pawn shop and routinely wore a gun at work; the Dis-
trict Court accepted that it was Harris’ ordinary practice to wear a gun
whether or not he was selling small amounts of marijuana to his friends.
The District Court, however, determined that the gun was carried “in
relation to” a drug trafficking offense within the meaning of § 924(c) be-
cause it was “unable to draw the distinction that if it is [carried] for a
legitimate purpose, it cannot be for an illegitimate purpose.” App. 163.
2 The presentence report recommended that Harris be given a term of
imprisonment of zero to six months for the distribution charge.

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574 HARRIS v. UNITED STATES
Thomas, J., dissenting
concluded that the allegation of brandishing a firearm did not
need to be charged in the indictment or proved beyond a
reasonable doubt in order for the 7-year mandatory minimum
to be triggered.
II
The Court construes § 924(c)(1)(A) to “defin[e] a single of-
fense,” ante, at 556, rather than the multiple offenses the
Court found in a similarly structured statute in Jones v.
United States, 526 U. S. 227 (1999). 3 In reliance on McMil-
lan, it then discounts the increasing mandatory minimum
sentences set forth in the statutory provision as constitution-
ally irrelevant. In the plurality’s view, any punishment less
than the statutory maximum of life imprisonment for any
violation of § 924(c)(1)(A) avoids the single principle the
Court now gleans from Apprendi: “ ‘Other than the fact of a
prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum,’ whether
the statute calls it an element or a sentencing factor, ‘must
be submitted to a jury, and proved beyond a reasonable
doubt.’ ” Ante, at 550 (quoting Apprendi, supra, at 490).
According to the plurality, the historical practices underly-
ing the Court’s decision in Apprendi with respect to pen-
alties that exceed the statutory maximum do not support ex-
tension of Apprendi’s rule to facts that increase a defendant’s
mandatory minimum sentence. Such fine distinctions with
regard to vital constitutional liberties cannot withstand
close scrutiny.
A
The Federal Constitution provides those “accused” in fed-
eral courts with specific rights, such as the right “to be in-
formed of the nature and cause of the accusation,” the right
to be “held to answer for a capital, or otherwise infamous
crime” only on an indictment or presentment of a grand jury,
and the right to be tried by “an impartial jury of the State
3 See 18 U. S. C. § 2119.

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

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576 HARRIS v. UNITED STATES
Thomas, J., dissenting
years to life in prison. But with a finding that a defendant
brandished a firearm, the penalty range becomes harsher,
seven years to life imprisonment. § 924(c)(1)(A)(ii). And
if the court finds that a defendant discharged a firearm,
the range becomes even more severe, 10 years to life.
§ 924(c)(1)(A)(iii). Thus, it is ultimately beside the point
whether as a matter of statutory interpretation brandishing
is a sentencing factor, because as a constitutional matter
brandishing must be deemed an element of an aggravated
offense. See Apprendi, supra, at 483, n. 10 (“[F]acts that
expose a defendant to a punishment greater than that other-
wise legally prescribed were by definition ‘elements’ of a sep-
arate legal offense”).
I agree with the Court that a legislature is free to decree,
within constitutional limits, which facts are elements that
constitute a crime. See ante, at 550. But when the legisla-
ture provides that a particular fact shall give rise “ ‘both to
a special stigma and to a special punishment,’ ” ante, at 560
(plurality opinion) (quoting McMillan, 477 U. S., at 103 (Ste-
vens, J., dissenting)), the constitutional consequences are
clear. As the Court acknowledged in Apprendi, society has
long recognized a necessary link between punishment and
crime, 530 U. S., at 478 (“The defendant’s ability to predict
with certainty the judgment from the face of the felony in-
dictment flowed from the invariable linkage of punishment
with crime”). This link makes a great deal of sense: Why,
after all, would anyone care if they were convicted of mur-
der, as opposed to manslaughter, but for the increased penal-
ties for the former offense, which in turn reflect the greater
moral opprobrium society attaches to the act? We made
clear in Apprendi that if a statute “ ‘annexes a higher degree
of punishment’ ” based on certain circumstances, exposing a
defendant to that higher degree of punishment requires that
those circumstances be charged in the indictment and proved
beyond a reasonable doubt. Id., at 480 (quoting J. Archbold,
Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)).

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577 Cite as: 536 U. S. 545 (2002)
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This constitutional limitation neither interferes with the
legislature’s ability to define statutory ranges of punishment
nor calls into question judicial discretion to impose “judg-
ment within the range prescribed by statute.” Apprendi,
530 U. S., at 481. But it does protect the criminal defend-
ant’s constitutional right to know, ex ante, those circum-
stances that will determine the applicable range of punish-
ment and to have those circumstances proved beyond a
reasonable doubt:
“If a defendant faces punishment beyond that provided
by statute when an offense is committed under certain
circumstances but not others, it is obvious that both the
loss of liberty and the stigma attaching to the offense
are heightened; it necessarily follows that the defendant
should not—at the moment the State is put to proof of
those circumstances—be deprived of protections that
have, until that point, unquestionably attached.” Id.,
at 484.
B
The Court truncates this protection and holds that “facts,
sometimes referred to as sentencing factors,” do not need
to be “alleged in the indictment, submitted to the jury, or
established beyond a reasonable doubt,” ante, at 550, so long
as they do not increase the penalty for the crime beyond the
statutory maximum. This is so even if the fact alters the
statutorily mandated sentencing range, by increasing the
mandatory minimum sentence. But to say that is in effect
to claim that the imposition of a 7-year, rather than a 5-year,
mandatory minimum does not change the constitutionally
relevant sentence range because, regardless, either sentence
falls between five years and the statutory maximum of life,
the longest sentence range available under the statute.
This analysis is flawed precisely because the statute provides
incremental sentencing ranges, in which the mandatory mini-
mum sentence varies upward if a defendant “brandished” or
“discharged” a weapon. As a matter of common sense, an

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578 HARRIS v. UNITED STATES
Thomas, J., dissenting
increased mandatory minimum heightens the loss of liberty
and represents the increased stigma society attaches to the
offense. Consequently, facts that trigger an increased man-
datory minimum sentence warrant constitutional safeguards.
Actual sentencing practices appear to bolster this conclu-
sion. The suggestion that a 7-year sentence could be im-
posed even without a finding that a defendant brandished a
firearm ignores the fact that the sentence imposed when a
defendant is found only to have “carried” a firearm “in rela-
tion to” a drug trafficking offense appears to be, almost uni-
formly, if not invariably, five years. Similarly, those found
to have brandished a firearm typically, if not always, are
sentenced only to 7 years in prison while those found to
have discharged a firearm are sentenced only to 10 years.
Cf. United States Sentencing Commission, 2001 Datafile,
USSCFY01, Table 1 (illustrating that almost all persons sen-
tenced for violations of 18 U. S. C. § 924(c)(1)(A) are sen-
tenced to 5, 7, or 10 years’ imprisonment). This is true even
though anyone convicted of violating § 924(c)(1)(A) is theoret-
ically eligible to receive a sentence as severe as life imprison-
ment. 4 Yet under the decision today, those key facts actu-
ally responsible for fixing a defendant’s punishment need not
be charged in an indictment or proved beyond a reasonable
doubt.
The incremental increase between five and seven years in
prison may not seem so great in the abstract (of course it
must seem quite different to a defendant actually being in-
carcerated). However, the constitutional analysis adopted
by the plurality would hold equally true if the mandatory
4 Indeed it is a certainty that in virtually every instance the sentence
imposed for a § 924(c)(1)(A) violation is tied directly to the applicable man-
datory minimum. See United States Sentencing Commission, Guidelines
Manual § 2K2.4, comment., n. 1 (Nov. 2001) (stating clearly that “the guide-
line sentence for a defendant convicted under 18 U. S. C. § 924(c) . . . is
the minimum term required by the relevant statute. . . . A sentence above
the minimum term . . . is an upward departure”).

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579 Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
minimum for a violation of § 924(c)(1) without brandishing
was five years, but the mandatory minimum with brandish-
ing was life imprisonment. The result must be the same
because surely our fundamental constitutional principles can-
not alter depending on degrees of sentencing severity. So
long as it was clear that Congress intended for “brandishing”
to be a sentencing factor, that fact would still have to be
neither charged in the indictment nor proved beyond a rea-
sonable doubt. But if this is the case, then Apprendi can
easily be avoided by clever statutory drafting.
It is true that Apprendi concerned a fact that increased
the penalty for a crime beyond the prescribed statutory max-
imum, but the principles upon which it relied apply with
equal force to those facts that expose the defendant to a
higher mandatory minimum: When a fact exposes a defend-
ant to greater punishment than what is otherwise legally
prescribed, that fact is “by definition [an] ‘elemen[t]’ of a sep-
arate legal offense.” 530 U. S., at 483, n. 10. Whether one
raises the floor or raises the ceiling it is impossible to dispute
that the defendant is exposed to greater punishment than is
otherwise prescribed.
This is no less true because mandatory minimum sentences
are a 20th-century phenomena. As the Government ac-
knowledged at oral argument, this fact means only that
historical practice is not directly dispositive of the question
whether facts triggering mandatory minimums must be
treated like elements. Tr. of Oral Arg. 47. The Court has
not previously suggested that constitutional protection ends
where legislative innovation or ingenuity begins. Looking
to the principles that animated the decision in Apprendi and
the bases for the historical practice upon which Apprendi
rested (rather than to the historical pedigree of mandatory
minimums), there are no logical grounds for treating facts
triggering mandatory minimums any differently than facts
that increase the statutory maximum. In either case the
defendant cannot predict the judgment from the face of the

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580 HARRIS v. UNITED STATES
Thomas, J., dissenting
felony, see 530 U. S., at 478–479, and the absolute statutory
limits of his punishment change, constituting an increased
penalty. In either case the defendant must be afforded the
procedural protections of notice, a jury trial, and a height-
ened standard of proof with respect to the facts warranting
exposure to a greater penalty. See id., at 490; Jones, 526
U. S., at 253 (Scalia, J., concurring).
III
McMillan rested on the premise that the “ ‘applicability of
the reasonable-doubt standard . . . has always been depend-
ent on how a State defines the offense that is charged in any
given case.’ ” 477 U. S., at 85 (quoting Patterson v. New
York, 432 U. S. 197, 211, n. 12 (1977)). Thus, it cannot with-
stand the logic of Apprendi, at least with respect to facts for
which the legislature has prescribed a new statutory sen-
tencing range. McMillan broke from the “traditional un-
derstanding” of crime definition, a tradition that “continued
well into the 20th century, at least until the middle of the
century.” Apprendi, supra, at 518 (Thomas, J., concurring).
The Court in McMillan did not, therefore, acknowledge that
the change in the prescribed sentence range upon the finding
of particular facts changed the prescribed range of penalties
in a constitutionally significant way. Rather, while recog-
nizing applicable due process limits, it concluded that the
mandatory minimum at issue did not increase the prescribed
range of penalties but merely required the judge to impose
a specific penalty “within the range already available to it.”
477 U. S., at 87–88. As discussed, supra, at 577–579, this
analysis is inherently flawed.
Jones called into question, and Apprendi firmly limited,
a related precept underlying McMillan: namely, the State’s
authority to treat aggravated behavior as a factor increasing
the sentence, rather than as an element of the crime. Al-
though the plurality resurrects this principle, see ante, at
559–560, 565, it must do so in the face of the Court’s contrary

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581 Cite as: 536 U. S. 545 (2002)
Thomas, J., dissenting
conclusion in Apprendi, which adopts the position taken by
the dissent in McMillan: “[I]f a State provides that a specific
component of a prohibited transaction shall give rise both
to a special stigma and to a special punishment, that compo-
nent must be treated as a ‘fact necessary to constitute the
crime’ within the meaning of our holding in In re Winship.”
477 U. S., at 103 (Stevens, J., dissenting). See Apprendi,
supra, at 483–484.
Nor should stare decisis dictate the outcome in this case;
the stare decisis effect of McMillan is considerably weak-
ened for a variety of reasons. As an initial matter, where
the Court has wrongly decided a constitutional question, the
force of stare decisis is at its weakest. See Ring v. Arizona,
post, at 608; Agostini v. Felton, 521 U. S. 203, 235 (1997).
And while the relationship between punishment and the con-
stitutional protections attached to the elements of a crime
traces its roots back to the common law, McMillan was de-
cided only 16 years ago.5 No Court of Appeals, let alone
this Court, has held that Apprendi has retroactive effect.
The United States concedes, with respect to prospective ap-
plication, that it can charge facts upon which a mandatory
minimum sentence is based in the indictment and prove them
to a jury. Tr. of Oral Arg. 42. Consequently, one is hard
pressed to give credence to the plurality’s suggestion that
“[i]t is critical not to abandon” McMillan “at this late date.”
Ante, at 567. Rather, it is imperative that the Court main-
tain absolute fidelity to the protections of the individual af-
5 Mandatory minimum sentence schemes are themselves phenomena of
fairly recent vintage genesis. See ante, at 558–559; see also Apprendi v.
New Jersey, 530 U. S. 466, 518 (2000) (Thomas, J., concurring) (“In fact, it
is fair to say that McMillan began a revolution in the law regarding the
definition of ‘crime.’ Today’s decision, far from being a sharp break with
the past, marks nothing more than a return to the status quo ante—the
status quo that reflected the original meaning of the Fifth and Sixth
Amendments”).

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582 HARRIS v. UNITED STATES
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forded by the notice, trial by jury, and beyond-a-reasonable-
doubt requirements.
Finally, before today, no one seriously believed that the
Court’s earlier decision in McMillan could coexist with the
logical implications of the Court’s later decisions in Apprendi
and Jones. In both cases, the dissent said as much:
“The essential holding of McMillan conflicts with at
least two of the several formulations the Court gives to
the rule it announces today. First, the Court endorses
the following principle: ‘[I]t is unconstitutional for a leg-
islature to remove from the jury the assessment of facts
that increase the prescribed range of penalties to which
a criminal defendant is exposed. It is equally clear that
such facts must be established by proof beyond a reason-
able doubt.’ Ante, at 490 (emphasis added) (quoting
Jones, supra, at 252–253 (Stevens, J., concurring)).
Second, the Court endorses the rule as restated in Jus-
tice Scalia’s concurring opinion in Jones. See ante, at
490. There, Justice Scalia wrote: ‘[I]t is unconstitu-
tional to remove from the jury the assessment of facts
that alter the congressionally prescribed range of penal-
ties to which a criminal defendant is exposed.’ Jones,
supra, at 253 (emphasis added). Thus, the Court ap-
pears to hold that any fact that increases or alters the
range of penalties to which a defendant is exposed—
which, by definition, must include increases or alter-
ations to either the minimum or maximum penalties—
must be proved to a jury beyond a reasonable doubt.
In McMillan, however, we rejected such a rule to the
extent it concerned those facts that increase or alter the
minimum penalty to which a defendant is exposed. Ac-
cordingly, it is incumbent on the Court not only to admit
that it is overruling McMillan, but also to explain why
such a course of action is appropriate under normal prin-
ciples of stare decisis.” Apprendi, 530 U. S., at 533
(O’Connor, J., dissenting).

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Thomas, J., dissenting
See also Jones, 526 U. S., at 268 (Kennedy, J., dissenting)
(“[B]y its terms, Justice Scalia’s view . . . would call into
question the validity of judge-administered mandatory mini-
mum sentencing provisions, contrary to our holding in Mc-
Millan. Once the facts triggering application of the manda-
tory minimum are found by the judge, the sentencing range
to which the defendant is exposed is altered”). There is no
question but that stare decisis may yield where a prior deci-
sion’s “underpinnings [have been] eroded, by subsequent de-
cisions of this Court.” United States v. Gaudin, 515 U. S.
506, 521 (1995).
Further supporting the essential incompatibility of Ap-
prendi and McMillan, Justice Breyer concurs in the judg-
ment but not the entire opinion of the Court, recognizing
that he “cannot easily distinguish Apprendi . . . from this
case in terms of logic. For that reason, I cannot agree with
the plurality’s opinion insofar as it finds such a distinction.”
Ante, at 569 (opinion concurring in part and concurring in
judgment). This leaves only a minority of the Court em-
bracing the distinction between McMillan and Apprendi
that forms the basis of today’s holding, and at least one Mem-
ber explicitly continues to reject both Apprendi and Jones.
Ante, at 569 (O’Connor, J., concurring).
* * *
“Conscious of the likelihood that legislative decisions may
have been made in reliance on McMillan,” in Apprendi, “we
reserve[d] for another day the question whether stare decisis
considerations preclude reconsideration of its narrower hold-
ing.” 530 U. S., at 487, n. 13. But that day has come, and
adherence to stare decisis in this case would require infidel-
ity to our constitutional values. Because, like most Mem-
bers of this Court, I cannot logically distinguish the issue
here from the principles underlying the Court’s decision in
Apprendi, I respectfully dissent.