US SUPREME COURT DECISIONS

United States v. O’Brien - 08-1569 (2010)

• Syllabus
• Opinion (Justice Kennedy)
• Concurrence (Justice Stevens)
• Concurrence (Justice Stevens)
• Concurrence (Justice Thomas)
• Concurrence (Justice Thomas)

UNITED STATES, PETITIONER v. MARTIN O’BRIEN and ARTHUR BURGESS

On writ of certiorari to the united states court of appeals for the first circuit

[May 24, 2010]

Justice Stevens, concurring:chanrobles.com-red

A “sentencing factor” may serve two very different functions. As a historical matter, the term has described a fact that a trial judge might rely upon when choosing a specific sentence within the range authorized by the legislature. In that setting, the judge has broad discretion in determining both the significance of the factor and whether it has been established by reliable evidence:chanrobles.com-red

In the 1970’s and 1980’s, as part of a national effort to enact tougher sentences,[Footnote 1] a new type of “sentencing factor” emerged. Since then the term has been used to describe facts, found by the judge by a preponderance of the evidence, that have the effect of imposing mandatory limits on a sentencing judge’s discretion. When used as an element of a mandatory sentencing scheme, a sentencing factor is the functional equivalent of an element of the criminal offense itself. In these circumstances, I continue to believe the Constitution requires proof beyond a reasonable doubt of this “factor.”

I

We first encountered the use of a “sentencing factor” in the mandatory minimum context in McMillan v. Pennsylvania, 477 U. S. 79 (1986), when we examined the constitutionality of Pennsylvania’s 1982 Mandatory Minimum Sentencing Act (Act).[Footnote 2] The Pennsylvania statute subjected anyone convicted of a specified felony to a mandatory minimum 5-year sentence if the trial judge found, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of the offense. See id., at 81–82. In four prosecutions under the Act, the trial judges had each held that the statute was unconstitutional and imposed sentences lower than the 5-year mandatory minimum, presumably because they recognized that the statute treated the visible possession of a firearm as the functional equivalent of an offense element. Id., at 82. On appeal, the Pennsylvania Supreme Court consolidated the four cases and reversed.[Footnote 3] Id., at 83. It reasoned that because visible possession of a firearm was a mere “sentencing factor,” rather than an element of any of the specified offenses defined by the legislature, the protections afforded by cases like In re Winship, 397 U. S. 358 (1970),[Footnote 4] did not apply:chanrobles.com-red

A bare majority of the McMillan Court endorsed this novel use of the sentencing factor concept. Five Justices concluded that the prerequisite for a mandatory sentence is just a “sentencing factor,” rather than an “element of the offense,” because the factor does not “alte[r] the maximum penalty for the crime” and merely “limit[s] the sentencing court’s discretion in selecting a penalty within the range already available to it.” 477 U. S., at 87–88. Yet, although the Pennsylvania Act’s 5-year mandatory sentence for visible possession of a firearm during the commission of an offense did not exceed the statutory maximum that otherwise applied for the crimes of conviction, a positive finding on the so-called sentencing factor mandated the imposition of a sentence that exceeded the punishment the defendant would have otherwise received. See id., at 103–104 (Stevens, J., dissenting):chanrobles.com-red

The majority opinion in McMillan can fairly be described as pathmarking, but unlike one of its predecessors, Winship, it pointed in the wrong direction. For reasons set forth in the opinions joined by the four dissenting Justices in McMillan, I continue to believe that McMillan was incorrectly decided. See id., at 93–94 (Marshall, J., dissenting); id., at 95–104 (Stevens, J., dissenting):chanrobles.com-red

II

Not only was McMillan wrong the day it was decided, but its reasoning has been substantially undermined—if not eviscerated—by the development of our Sixth Amendment jurisprudence in more recent years. We now understand that “ ‘[i]t is unconstitutional [under the Sixth Amendment] for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Apprendi v. New Jersey, 530 U. S. 466 , 490 (2000) (quoting Jones v. United States, 526 U. S. 227, 252–253 (1999) (Stevens, J., concurring)). Harmonizing Apprendi with our existing Sixth Amendment jurisprudence, we explained that “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 (emphasis added). In other words, we narrowed our holding to those facts that effectively raised the ceiling on the offense, but did not then consider whether the logic of our holding applied also to those facts necessary to set the floor of a particular sentence:chanrobles.com-red

As Justice Thomas eloquently explained in his dissent in Harris v. United States, 536 U. S. 545 , 572 (2002), the reasoning in our decision in Apprendi applies with equal force in the context of mandatory minimums. There is, quite simply, no reason to distinguish between facts that trigger punishment in excess of the statutory maximum and facts that trigger a mandatory minimum. This case vividly illustrates the point. It is quite plain that there is a world of difference between the 812-year sentence and the 7-year sentence the judge imposed on the defendants in this case and the 30-year sentence mandated by the machinegun finding under 18 U. S. C. §924(c)(1)(B):chanrobles.com-red