OCTOBER TERM, 2005
WASHINGTON V. RECUENCO
SUPREME COURT OF THE UNITED STATES
WASHINGTON v. RECUENCO
certiorari to the supreme court of washington
No. 05–83. Argued April 17, 2006—Decided June 26, 2006
After respondent threatened his wife with a handgun, he was convicted of second-degree assault based on the jury’s finding that he had assaulted her “with a deadly weapon.” A “firearm” qualifies as a “deadly weapon” under Washington law, but nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a “firearm,” as opposed to any other kind of “deadly weapon.” Nevertheless, the state trial court applied a 3-year firearm enhancement to respondent’s sentence, rather than the 1-year enhancement that specifically applies to assault with a deadly weapon, based on the court’s own factual findings that respondent was armed with a firearm. This Court then decided Apprendi v. New Jersey, 530 U. S. 466, holding 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,” id., at 490, and Blakely v. Washington, 542 U. S. 296, clarifying that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict,” id., at 303. Because the trial court could not have subjected respondent to a firearm enhancement based only on the jury’s finding that respondent was armed with a “deadly weapon,” the State conceded a Sixth Amendment Blakely violation before the Washington Supreme Court, but urged the court to find the Blakely error harmless. In vacating respondent’s sentence and remanding for sentencing based solely on the deadly weapon enhancement, however, the court declared Blakely error to be “structural error,” which will always invalidate a conviction under Sullivan v. Louisiana, 508 U. S. 275, 279.
1. Respondent’s argument that this Court lacks power to reverse because the Washington Supreme Court’s judgment rested on adequate and independent state-law grounds is rejected. It is far from clear that respondent is correct that at the time of his conviction, state law provided no procedure for a jury to determine whether a defendant was armed with a firearm, so that it is impossible to conduct harmless-error analysis on the Blakely error in his case. The correctness of respondent’s interpretation, however, is not determinative of the question the State Supreme Court decided and on which this Court granted review, i.e., whether Blakely error can ever be deemed harmless. If respondent’s reading of Washington law is correct, that merely suggests that he will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24. But it does not mean that Blakely error—which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not—is structural, or that this Court is precluded from deciding that question. Thus, the Court need not resolve this open question of Washington law. Pp. 3–4.
2. Failure to submit a sentencing factor to the jury is not “structural” error. If a criminal defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that most constitutional errors are subject to harmless-error analysis. E.g., Neder v. United States, 527 U. S. 1, 8. Only in rare cases has this Court ruled an error “structural,” thus requiring automatic reversal. In Neder, the Court held that failure to submit an element of an offense to the jury—there, the materiality of false statements as an element of the federal crimes of filing a false income tax return, mail fraud, wire fraud, and bank fraud, see id., at 20–25—is not structural, but is subject to Chapman’s harmless-error rule, id., at 7–20. This case is indistinguishable from Neder. Apprendi makes clear that “[a]ny possible distinction between an ‘element’ of a felony … and a ‘sentencing factor’ was unknown … during the years surrounding our Nation’s founding.” 530 U. S., at 478. Accordingly, the Court has treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483–484. The only difference between this case and Neder is that there the prosecution failed to prove the materiality element beyond a reasonable doubt, while here the prosecution failed to prove the “armed with a firearm” sentencing factor beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with Apprendi’s recognition that elements and sentencing factors must be treated the same. Respondent attempts unpersuasively to distinguish Neder on the ground that the jury there returned a guilty verdict on the offenses for which the defendant was sentenced, whereas here the jury returned a guilty verdict only on the offense of second-degree assault, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Because Neder’s jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt than is the verdict here. See 527 U. S., at 31. Pp. 5–9.
154 Wash. 2d 156, 110 P. 3d 188, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined.