CUNNINGHAM v. CALIFORNIA

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CUNNINGHAM v. CALIFORNIA
certiorari to the court of appeal of california,
first appellate district
No. 05–6551. Argued October 11, 2006—Decided January 22, 2007
Petitioner Cunningham was tried and convicted of continuous sexual abuse
of a child under 14. Under California’s determinate sentencing law
(DSL), that offense is punishable by one of three precise terms of impris
onment: a lower term sentence of 6 years, a middle term sentence of 12
years, or an upper term sentence of 16 years. The DSL obliged the
trial judge to sentence Cunningham to the 12-year middle term unless
the judge found one or more additional “circumstances in aggravation.”
Court Rules adopted to implement the DSL define “circumstances in
aggravation” as facts that justify the upper term. Those facts, the
Rules provide, must be established by a preponderance of the evidence.
Based on a post-trial sentencing hearing, the judge found by a prepon
derance of the evidence six aggravating facts, including the particular
vulnerability of the victim, and one mitigating fact, that Cunningham
had no record of prior criminal conduct. Concluding that the aggrava
tors outweighed the sole mitigator, the judge sentenced Cunningham to
the upper term of 16 years. The California Court of Appeal affirmed.
The State Supreme Court denied review, but in a decision published
nine days earlier, People v. Black, 35 Cal. 4th 1230, 113 P. 3d 534, that
court held that the DSL survived Sixth Amendment inspection.
Held: The DSL, by placing sentence-elevating factfinding within the
judge’s province, violates a defendant’s right to trial by jury safe
guarded by the Sixth and Fourteenth Amendments. Pp. 281–294.
(a) In Apprendi v. New Jersey, 530 U. S. 466, this Court held that,
under the Sixth Amendment, any fact (other than a prior conviction)
that exposes a defendant to a sentence in excess of the relevant statu
tory maximum must be found by a jury, not a judge, and established
beyond a reasonable doubt, not merely by a preponderance of the evi
dence. See id., at 490. The Court has applied the rule of Apprendi to
facts subjecting a defendant to the death penalty, Ring v. Arizona, 536
U. S. 584, 602, 609, facts permitting a sentence in excess of the “standard
range” under Washington’s Sentencing Reform Act (Reform Act),
Blakely v. Washington, 542 U. S. 296, 304–305, and facts triggering a
sentence range elevation under the then-mandatory Federal Sentencing
Guidelines, United States v. Booker, 543 U. S. 220, 243–244. Blakely
and Booker bear most closely on the question presented here.

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The maximum penalty for Blakely’s offense, under Washington’s Re
form Act, was ten years’ imprisonment, but if no facts beyond those
reflected in the jury’s verdict were found by the trial judge, Blakely
could not receive a sentence above a standard range of 49 to 53 months.
Blakely was sentenced to 90 months, more than three years above the
standard range, based on the judge’s finding of deliberate cruelty.
Applying Apprendi, this Court held the sentence unconstitutional. The
State in Blakely endeavored to distinguish Apprendi, contending that
Blakely’s sentence was within the judge’s discretion based solely on the
guilty verdict. The Court dismissed that argument. Blakely could not
have been sentenced above the standard range absent an additional fact.
Consequently, that fact was subject to the Sixth Amendment’s jury-trial
guarantee. It did not matter that Blakely’s sentence, though outside
the standard range, was within the 10-year maximum. Because the
judge could not have imposed a sentence outside the standard range
without finding an additional fact, the top of that range—53 months,
not 10 years—was the relevant statutory maximum. The Court also
rejected the State’s arguments that Apprendi was satisfied because the
Reform Act did not specify an exclusive catalog of facts on which a
judge might base a departure from the standard range, and because it
ultimately left the decision whether or not to depart to the judge’s
discretion.
Booker was sentenced under the Federal Sentencing Guidelines.
The facts found by the jury yielded a base Guidelines range of 210 to
262 months’ imprisonment, a range the judge could not exceed without
undertaking additional factfinding. The judge did so, making a finding
that boosted Booker into a higher Guidelines range. This Court held
Booker’s sentence impermissible under the Sixth Amendment. There
was “no distinction of constitutional significance between the Federal
Sentencing Guidelines and the Washington procedures at issue in
[Blakely].” 543 U. S., at 233. Both were “mandatory and impose[d]
binding requirements on all sentencing judges.” Ibid. All Members
of the Court agreed, however, that the Guidelines would not implicate
the Sixth Amendment if they were advisory. Ibid. Facing the reme
dial question, the Court concluded that rendering the Guidelines advi
sory came closest to what Congress would have intended had it known
that the Guidelines were vulnerable to a Sixth Amendment challenge.
Under the advisory Guidelines system described in Booker, judges
would no longer be confined to the sentencing range dictated by the
Guidelines, but would be obliged to “take account” of that range along
with the sentencing goals enumerated in the Sentencing Reform Act
(SRA). Id., at 259, 264. In place of the SRA provision governing ap
pellate review of sentences under the mandatory Guidelines scheme, the

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Court installed a “reasonableness” standard of review. Id., at 261.
Pp. 281–288.
(b) In all material respects, California’s DSL resembles the sentenc
ing systems invalidated in Blakely and Booker. Following the reason
ing in those cases, the middle term prescribed under California law, not
the upper term, is the relevant statutory maximum. Because aggravat
ing facts that authorize the upper term are found by the judge, and need
only be established by a preponderance of the evidence, the DSL vio
lates the rule of Apprendi.
While “that should be the end of the matter,” Blakely, 542 U. S., at
313, in People v. Black, the California Supreme Court insisted that the
DSL survives inspection under our precedents. The Black court rea
soned that, given the ample discretion afforded trial judges to identify
aggravating facts warranting an upper term sentence, the DSL did “not
represent a legislative effort to shift the proof of particular facts from
elements of a crime (to be proved to a jury) to sentencing factors (to be
decided by a judge),” 35 Cal. 4th, at 1255–1256, 113 P. 3d, at 543–544.
This Court cautioned in Blakely, however, that broad discretion to de
cide what facts may support an enhanced sentence, or to determine
whether an enhanced sentence is warranted in a particular case, does
not shield a sentencing system from the force of this Court’s decisions.
The Black court also urged that the DSL is not cause for concern be
cause it reduced the penalties for most crimes over the prior indetermi
nate sentencing scheme; because the system is fair to defendants; and
because the DSL requires statutory sentence enhancements (as distin
guished from aggravators) to be charged in the indictment and proved
to a jury beyond a reasonable doubt. The Black court’s examination, in
short, satisfied it that California’s sentencing system does not implicate
significantly the concerns underlying the Sixth Amendment’s jury-trial
guarantee. This Court’s decisions, however, leave no room for such an
examination. Asking whether a defendant’s basic jury-trial right is
preserved, though some facts essential to punishment are reserved for
determination by the judge, is the very inquiry Apprendi’s bright-line
rule was designed to exclude.
Ultimately, the Black court relied on an equation of California’s DSL
to the post-Booker federal system. That attempted comparison is un
availing. The Booker Court held the Federal Guidelines incompatible
with the Sixth Amendment because they were “mandatory and im
pose[d] binding requirements on all sentencing judges,” 543 U. S., at
233. To remedy the constitutional infirmity, the Court excised provi
sions that rendered the system mandatory, leaving the Guidelines in
place as advisory only. The DSL, however, does not resemble the advi
sory system the Court in Booker had in view. Under California’s sys

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tem, judges are not free to exercise their “discretion to select a specific
sentence within a defined range.” Ibid. California’s Legislature has
adopted sentencing triads, three fixed sentences with no ranges between
them. Cunningham’s sentencing judge had no discretion to select a sen
tence within a range of 6 to 16 years, but had to impose 12 years, noth
ing less and nothing more, unless the judge found facts allowing a sen
tence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16
years, this Court’s decisions make plain, falls within the province of the
jury employing a beyond-a-reasonable-doubt standard, not the bailiwick
of a judge determining where the preponderance of the evidence lies.
The Black court attempted to rescue the DSL’s judicial factfinding
authority by typing it a reasonableness constraint, equivalent to the
constraint operative in the post-Booker federal system. Reasonable
ness, however, is not the touchstone of Sixth Amendment analysis. The
reasonableness requirement Booker anticipated for the federal system
operates within the constitutional constraints delineated in this Court’s
precedent, not as a substitute for those constraints. Because the DSL
allocates to judges sole authority to find facts permitting the imposition
of an upper term sentence, the system violates the Sixth Amendment.
Booker’s remedy for the Federal Guidelines, in short, is not a recipe for
rendering this Court’s Sixth Amendment case law toothless. Further
elaboration here on the federal reasonableness standard is neither nec
essary nor proper. The Court has granted review in two cases—to be
argued and decided later this Term—raising questions trained on that
matter. Claiborne v. United States, No. 06–5618; Rita v. United States,
No. 06–5754. Pp. 288–293.
(c) As to the adjustment of California’s sentencing system in light of
the Court’s ruling, “[t]he ball . . . lies in [California’s] court.” Booker,
543 U. S., at 265. Several States have modified their systems in the
wake of Apprendi and Blakely to retain determinate sentencing, by
calling upon the jury to find any fact necessary to the imposition of an
elevated sentence. Other States have chosen to permit judges genu
inely “to exercise broad discretion . . . within a statutory range,” which,
“everyone agrees,” encounters no Sixth Amendment shoal. 543 U. S.,
at 233. California may follow the paths taken by its sister States or
otherwise alter its system, so long as it observes Sixth Amendment
limitations declared in this Court’s decisions. Pp. 293–294.
Reversed in part and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Stevens, Scalia, Souter, and Thomas, JJ., joined. Kennedy,
J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 295.

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Alito, J., filed a dissenting opinion, in which Kennedy and Breyer, JJ.,
joined, post, p. 297.
Peter Gold, by appointment of the Court, 547 U. S. 1053,
argued the cause and filed briefs for petitioner.
Jeffrey M. Laurence, Deputy Attorney General of Califor
nia, argued the cause for respondent. With him on the brief
were Bill Lockyer, Attorney General, Robert R. Anderson,
Chief Assistant Attorney General, Gerald A. Engler, Senior
Assistant Attorney General, Donald E. de Nicola, Deputy
Solicitor General, and Stan Helfman, Supervising Deputy
Attorney General.*
Justice Ginsburg delivered the opinion of the Court.
California’s determinate sentencing law (DSL) assigns to
the trial judge, not to the jury, authority to find the facts
that expose a defendant to an elevated “upper term” sen
tence. The facts so found are neither inherent in the jury’s
verdict nor embraced by the defendant’s plea, and they need
only be established by a preponderance of the evidence,
not beyond a reasonable doubt. The question presented
is whether the DSL, by placing sentence-elevating factfind
ing within the judge’s province, violates a defendant’s right
to trial by jury safeguarded by the Sixth and Fourteenth
Amendments. We hold that it does.
As this Court’s decisions instruct, the Federal Consti
tution’s jury-trial guarantee proscribes a sentencing scheme
*Jeffrey L. Fisher, Pamela S. Karlan, Thomas C. Goldstein, Amy
Howe, and Kevin K. Russell filed a brief for the National Association of
Criminal Defense Lawyers as amicus curiae urging reversal.
A brief of amici curiae urging affirmance was filed for the State of
Hawaii et al. by Mark J. Bennett, Attorney General of Hawaii, Dorothy D.
Sellers and Kimberly A. Tsumoto, Deputy Attorneys General, and Dan
Schweitzer, and by the Attorneys General for their respective States as
follows: Mike Beebe of Arkansas, John W. Suthers of Colorado, Lisa Madi
gan of Illinois, Mike McGrath of Montana, George J. Chanos of Nevada,
Hardy Myers of Oregon, Greg Abbott of Texas, and Mark L. Shurtleff
of Utah.

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that allows a judge to impose a sentence above the statutory
maximum based on a fact, other than a prior conviction, not
found by a jury or admitted by the defendant. Apprendi v.
New Jersey, 530 U. S. 466 (2000); Ring v. Arizona, 536 U. S.
584 (2002); Blakely v. Washington, 542 U. S. 296 (2004);
United States v. Booker, 543 U. S. 220 (2005). “[T]he rele
vant ‘statutory maximum,’ ” this Court has clarified, “is not
the maximum sentence a judge may impose after finding ad
ditional facts, but the maximum he may impose without any
additional findings.” Blakely, 542 U. S., at 303–304 (empha
sis in original). In petitioner’s case, the jury’s verdict alone
limited the permissible sentence to 12 years. Additional
factfinding by the trial judge, however, yielded an upper
term sentence of 16 years. The California Court of Appeal
affirmed the harsher sentence. We granted certiorari, 546
U. S. 1169 (2006), and now reverse that disposition because
the four-year elevation based on judicial factfinding denied
petitioner his right to a jury trial.
I
A
Petitioner John Cunningham was tried and convicted of
continuous sexual abuse of a child under the age of 14.
Under the DSL, that offense is punishable by imprisonment
for a lower term sentence of 6 years, a middle term sentence
of 12 years, or an upper term sentence of 16 years. Cal.
Penal Code Ann. § 288.5(a) (West 1999) (hereinafter Penal
Code). As further explained below, see infra, at 277–281,
the DSL obliged the trial judge to sentence Cunningham to
the 12-year middle term unless the judge found one or more
additional facts in aggravation. Based on a post-trial sen
tencing hearing, the trial judge found by a preponderance
of the evidence six aggravating circumstances, among them,
the particular vulnerability of Cunningham’s victim, and
Cunningham’s violent conduct, which indicated a serious
danger to the community. Tr. of Sentencing (Aug. 1, 2003),

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App. 22.1 In mitigation, the judge found one fact: Cunning
ham had no record of prior criminal conduct. Ibid. Con
cluding that the aggravators outweighed the sole mitigator,
the judge sentenced Cunningham to the upper term of 16
years. Id., at 23.
A panel of the California Court of Appeal affirmed the
conviction and sentence; one judge dissented in part, urging
that this Court’s precedent precluded the judge-determined
four-year increase in Cunningham’s sentence. No. A103501
(Apr. 18, 2005), App. 43–48; id., at 48–50 (Jones, J., concur
ring and dissenting).2 The California Supreme Court de
nied review. No. S133971 (June 29, 2005), id., at 52. In a
reasoned decision published nine days earlier, that court con
sidered the question here presented and held that the DSL
survived Sixth Amendment inspection. People v. Black, 35
Cal. 4th 1238, 113 P. 3d 534 (June 20, 2005).
B
Enacted in 1977, the DSL replaced an indeterminate sen
tencing regime in force in California for some 60 years. See
id., at 1246, 113 P. 3d, at 537; Cassou & Taugher, Determinate
Sentencing in California: The New Numbers Game, 9 Pac.
L. J. 5, 6–22 (1978) (hereinafter Cassou & Taugher). Under
1 The particular vulnerability of the victim is listed in Cal. Rule of Court
4.421(a)(3) (Criminal Cases) (West 2006) (hereinafter Rule), as a fact “re
lating to the crime.” Violent conduct indicating a serious danger to soci
ety is listed in Rule 4.421(b)(1) as a fact “relating to the defendant.”
2 In addition to a Sixth Amendment challenge, Cunningham disputed the
substance of five of the six findings made by the trial judge. The appel
late panel affirmed the trial judge’s vulnerable victim and violent conduct
findings, but rejected the finding that Cunningham abused a position of
trust (because that finding overlapped with the vulnerable victim finding).
The panel did not decide whether the judge’s other findings were war
ranted, concluding that she properly relied on at least two aggravating
facts in imposing the upper term, and that it was not “reasonably prob
able” that a different sentence would have been imposed absent any
improper findings. App. 43–46; id., at 51 (May 4, 2005, order modifying
opinion and denying rehearing).

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the prior regime, courts imposed open-ended prison terms
(often one year to life), and the parole board—the Adult Au
thority—determined the amount of time a felon would ulti
mately spend in prison. Black, 35 Cal. 4th, at 1246, 1256,
113 P. 3d, at 537, 544; In re Roberts, 36 Cal. 4th 575, 588, n. 6,
115 P. 3d 1121, 1129, n. 6 (2005); Cassou & Taugher 5–9. In
contrast, the DSL fixed the terms of imprisonment for most
offenses, and eliminated the possibility of early release on
parole. See Penal Code § 3000 et seq. (West Supp. 2006); 3
B. Witkin & N. Epstein, California Criminal Law § 610,
p. 809 (3d ed. 2000); Brief for Respondent 7.3 Through the
DSL, California’s lawmakers aimed to promote uniform and
proportionate punishment. Penal Code § 1170(a)(1); Black,
35 Cal. 4th, at 1246, 113 P. 3d, at 537.
For most offenses, including Cunningham’s, the DSL re
gime is implemented in the following manner. The statute
defining the offense prescribes three precise terms of impris
onment—a lower, middle, and upper term sentence. E. g.,
Penal Code § 288.5(a) (West 1999) (a person convicted of con
tinuous sexual abuse of a child “shall be punished by impris
onment in the state prison for a term of 6, 12, or 16 years”).
See also Black, 35 Cal. 4th, at 1247, 113 P. 3d, at 538. Penal
Code § 1170(b) (West Supp. 2006) controls the trial judge’s
choice; it provides that “the court shall order imposition of
the middle term, unless there are circumstances in aggrava
tion or mitigation of the crime.” “[C]ircumstances in aggra
vation or mitigation” are to be determined by the court after
consideration of several items: the trial record; the probation
officer’s report; statements in aggravation or mitigation sub
mitted by the parties, the victim, or the victim’s family; “and
any further evidence introduced at the sentencing hearing.”
Ibid.
3 Murder and certain other grave offenses still carry lengthy indetermi
nate terms with the possibility of early release on parole. Brief for Re
spondent 7, n. 2. See, e. g., Penal Code § 190 (West Supp. 2006).

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The DSL directed the State’s Judicial Council 4 to adopt
Rules guiding the sentencing judge’s decision whether to
“[i]mpose the lower or upper prison term.” Penal Code
§ 1170.3(a)(2) (West 2004).5 Restating § 1170(b), the Coun
cil’s Rules provide that “[t]he middle term shall be selected
unless imposition of the upper or lower term is justified by
circumstances in aggravation or mitigation.” Rule 4.420(a).
“Circumstances in aggravation,” as crisply defined by the Ju
dicial Council, means “facts which justify the imposition of
the upper prison term.” Rule 4.405(d) (emphasis added).
Facts aggravating an offense, the Rules instruct, “shall be
established by a preponderance of the evidence,” Rule
4.420(b),6 and must be “stated orally on the record,” Rule
4.420(e).
The Rules provide a nonexhaustive list of aggravating cir
cumstances, including “[f]acts relating to the crime,” Rule
4.421(a),7 “[f]acts relating to the defendant,” Rule 4.421(b),8
and “[a]ny other facts statutorily declared to be circum
stances in aggravation,” Rule 4.421(c). Beyond the enumer
ated circumstances, “the judge is free to consider any ‘ad
4 The Judicial Council includes the chief justice and another justice of
the California Supreme Court, three judges sitting on the Courts of Ap
peal, ten judges from the Superior Courts, and other nonvoting members.
Cal. Const., Art. 6, § 6(a) (West Supp. 2006). The California Constitution
grants the Council authority, inter alia, to “adopt rules for court adminis
tration, practice and procedure, and perform other functions prescribed
by statute.” Ibid., § 6(d).
5 The Rules were amended on January 1, 2007. Those amendments
made technical changes, none of them material to the constitutional ques
tion before us. We refer in this opinion to the prior text of the Rules,
upon which the parties and principal authorities rely.
6 The judge must provide a statement of reasons for a sentence only
when a lower or upper term sentence is imposed. Rules 4.406(b), 4.420(e).
7 E. g., Rule 4.421(a)(1) (“[T]he fact that . . . [t]he crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness.”).
8 E. g., Rule 4.421(b)(1) (“[T]he fact that . . . [t]he defendant has engaged
in violent conduct which indicates a serious danger to society.”).

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ditional criteria reasonably related to the decision being
made.’ ” Black, 35 Cal. 4th, at 1247, 113 P. 3d, at 538 (quot
ing Rule 4.408(a)). “A fact that is an element of the crime,”
however, “shall not be used to impose the upper term.”
Rule 4.420(d). In sum, California’s DSL, and the Rules gov
erning its application, direct the sentencing court to start
with the middle term, and to move from that term only when
the court itself finds and places on the record facts—whether
related to the offense or the offender—beyond the elements
of the charged offense.
Justice Alito maintains, however, that a circumstance in
aggravation need not be a fact at all. In his view, a policy
judgment, or even a judge’s “subjective belief ” regarding the
appropriate sentence, qualifies as an aggravating circum
stance. Post, at 307–308 (dissenting opinion) (internal quo
tation marks omitted). California’s Rules, however, con
stantly refer to “facts.” As just noted, the Rules define
“circumstances in aggravation” as “facts which justify the
imposition of the upper prison term.” Rule 4.405(d) (empha
sis added).9 And “circumstances in aggravation,” the Rules
unambiguously declare, “shall be established by a preponder
ance of the evidence,” Rule 4.420(b), a clear factfinding direc
tive to which there is no exception. See People v. Hall, 8
Cal. 4th 950, 957, 883 P. 2d 974, 978 (1994) (“Selection of the
upper term is justified only if circumstances in aggravation
are established by a preponderance of evidence . . . .” (empha
sis added)).
While the Rules list “[g]eneral objectives of sentencing,”
Rule 4.410(a), nowhere are these objectives cast as “circum
stances in aggravation” that alone authorize an upper term
9 See also, e. g., Rule 4.420(b) (“Selection of the upper term is justified
only if, after a consideration of all the relevant facts, the circumstances in
aggravation outweigh the circumstances in mitigation.” (emphasis added));
Rule 4.420(e) (court must provide “a concise statement of the ultimate
facts that the court deemed to constitute circumstances in aggravation or
mitigation” (emphasis added)).

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sentence. The Rules also state that “[t]he enumeration . . .
of some criteria for the making of discretionary sentencing
decisions does not prohibit the application of additional crite
ria reasonably related to the decision being made.” Rule
4.408(a). California courts have not read this language to
unmoor “circumstances in aggravation” from any factfind
ing anchor.
In line with the Rules, the California Supreme Court has
repeatedly referred to circumstances in aggravation as facts.
See, e. g., Black, 35 Cal. 4th, at 1256, 113 P. 3d, at 544 (“The
Legislature did not identify all of the particular facts that
could justify the upper term.” (emphasis added)); People v.
Wiley, 9 Cal. 4th 580, 587, 889 P. 2d 541, 545 (1995) (“[T]rial
courts are assigned the task of deciding whether to impose
an upper or lower term of imprisonment based upon their
determination whether there are circumstances in aggrava
tion or mitigation of the crime, a determination that invari
ably requires numerous factual findings.” (emphasis added
and internal quotation marks omitted)).
It is unsurprising, then, that State’s counsel, at oral argu
ment, acknowledged that he knew of no case in which a Cali
fornia trial judge had gone beyond the middle term based
not on any fact the judge found, but solely on the basis of a
policy judgment or subjective belief. See Tr. of Oral Arg.
49–50.
Notably, the Penal Code permits elevation of a sentence
above the upper term based on specified statutory enhance
ments relating to the defendant’s criminal history or circum
stances of the crime. See, e. g., Penal Code § 667 et seq.
(West 1999); § 12022 et seq. (West 2000 and Supp. 2006). See
also Black, 35 Cal. 4th, at 1257, 113 P. 3d, at 545. Unlike
aggravating circumstances, statutory enhancements must be
charged in the indictment, and the underlying facts must be
proved to the jury beyond a reasonable doubt. Penal Code
§ 1170.1(e) (West 2004); Black, 35 Cal. 4th, at 1257, 113 P. 3d,
at 545. A fact underlying an enhancement cannot do double

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duty; it cannot be used to impose an upper term sentence
and, on top of that, an enhanced term. Penal Code § 1170(b).
Where permitted by statute, however, a judge may use a
fact qualifying as an enhancer to impose an upper term
rather than an enhanced sentence. Ibid.; Rule 4.420(c).
II
This Court has repeatedly held that, under the Sixth
Amendment, any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a pre
ponderance of the evidence. While this rule is rooted in
longstanding common-law practice, its explicit statement in
our decisions is recent. In Jones v. United States, 526 U. S.
227 (1999), we examined the Sixth Amendment’s historical
and doctrinal foundations, and recognized that judicial fact
finding operating to increase a defendant’s otherwise maxi
mum punishment posed a grave constitutional question. Id.,
at 239–252. While the Court construed the statute at issue
to avoid the question, the Jones opinion presaged our deci
sion, some 15 months later, in Apprendi v. New Jersey, 530
U. S. 466 (2000).
Charles Apprendi was convicted of possession of a firearm
for an unlawful purpose, a second-degree offense under New
Jersey law punishable by five to ten years’ imprisonment.
Id., at 468. A separate “hate crime” statute authorized an
“extended term” of imprisonment: Ten to twenty years could
be imposed if the trial judge found, by a preponderance of
the evidence, that “ ‘[t]he defendant in committing the crime
acted with a purpose to intimidate an individual or group of
individuals because of race, color, gender, handicap, religion,
sexual orientation or ethnicity.’ ” Id., at 468–469 (quoting
N. J. Stat. Ann. § 2C:44–3(e) (West Supp. 1999–2000)). The
judge in Apprendi’s case so found, and therefore sentenced
the defendant to 12 years’ imprisonment. This Court held
that the Sixth Amendment proscribed the enhanced sen

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tence. 530 U. S., at 471. Other than a prior conviction, see
Almendarez-Torres v. United States, 523 U. S. 224, 239–247
(1998), we held in Apprendi, “any fact that increases the pen
alty 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. See also Harris v. United States,
536 U. S. 545, 557–566 (2002) (plurality opinion) (“Apprendi
said that any fact extending the defendant’s sentence beyond
the maximum authorized by the jury’s verdict would have
been considered an element of an aggravated crime—and
thus the domain of the jury—by those who framed the Bill
of Rights.”).
We have since reaffirmed the rule of Apprendi, applying
it to facts subjecting a defendant to the death penalty, Ring,
536 U. S., at 602, 609, facts permitting a sentence in excess
of the “standard range” under Washington’s Sentencing Re
form Act, Blakely, 542 U. S., at 304–305, and facts triggering
a sentence range elevation under the then-mandatory Fed
eral Sentencing Guidelines, Booker, 543 U. S., at 243–244.
Blakely and Booker bear most closely on the question pre
sented in this case.
Ralph Howard Blakely was convicted of second-degree
kidnaping with a firearm, a class B felony under Washing
ton law. Blakely, 542 U. S., at 298–299. While the overall
statutory maximum for a class B felony was ten years, the
State’s Sentencing Reform Act (Reform Act) added an im
portant qualification: If no facts beyond those reflected in
the jury’s verdict were found by the trial judge, a defendant
could not receive a sentence above a “standard range” of 49
to 53 months. Id., at 299–300. The Reform Act permitted
but did not require a judge to exceed that standard range if
she found “ ‘substantial and compelling reasons justifying an
exceptional sentence.’ ” Ibid. (quoting Wash. Rev. Code
Ann. § 9.94A.120(2) (2000)). The Reform Act set out a non
exhaustive list of aggravating facts on which such a sentence
elevation could be based. It also clarified that a fact taken

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into account in fixing the standard range—i. e., any fact
found by the jury—could under no circumstances count in
the determination whether to impose an exceptional sen
tence. 542 U. S., at 299–300. Blakely was sentenced to 90
months’ imprisonment, more than three years above the
standard range, based on the trial judge’s finding that he had
acted with deliberate cruelty. Id., at 300.
Applying the rule of Apprendi, this Court held Blakely’s
sentence unconstitutional. The State in Blakely had en
deavored to distinguish Apprendi on the ground that
“[u]nder the Washington guidelines, an exceptional sentence
is within the court’s discretion as a result of a guilty verdict.”
Brief for Respondent in Blakely v. Washington, O. T. 2003,
No. 02–1632, p. 15. We rejected that argument. The judge
could not have sentenced Blakely above the standard range
without finding the additional fact of deliberate cruelty.
Consequently, that fact was subject to the Sixth Amend
ment’s jury-trial guarantee. 542 U. S., at 304–314. It did
not matter, we explained, that Blakely’s sentence, though
outside the standard range, was within the 10-year maxi
mum for class B felonies:
“Our precedents make clear . . . that the ‘statutory maxi
mum’ for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the
defendant . . . . In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum
he may impose without any additional findings. When
a judge inflicts punishment that the jury’s verdict alone
does not allow, the jury has not found all the facts ‘which
the law makes essential to the punishment,’ . . . and the
judge exceeds his proper authority.” Id., at 303–304
(quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d
ed. 1872); emphasis in original).

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Because the judge in Blakely’s case could not have imposed
a sentence outside the standard range without finding an
additional fact, the top of that range—53 months, and not
10 years—was the relevant statutory maximum. 542 U. S.,
at 304.
The State had additionally argued in Blakely that Ap
prendi’s rule was satisfied because Washington’s Reform Act
did not specify an exclusive catalog of potential facts on
which a judge might base a departure from the standard
range. This Court re jected that argument as well.
“Whether the judge’s authority to impose an enhanced sen
tence depends on finding a specified fact . . . , one of several
specified facts . . . , or any aggravating fact (as here),” we
observed, “it remains the case that the jury’s verdict alone
does not authorize the sentence.” 542 U. S., at 305 (em
phasis in original). Further, we held it irrelevant that the
Reform Act ultimately left the decision whether or not to
depart to the judge’s discretion: “Whether the judicially
determined facts require a sentence enhancement or merely
allow it,” we noted, “the verdict alone does not authorize
the sentence.” Ibid., n. 8 (emphasis in original).
Freddie Booker was convicted of possession with intent to
distribute crack cocaine and was sentenced under the Fed
eral Sentencing Guidelines. The facts found by Booker’s
jury yielded a base Guidelines range of 210 to 262 months’
imprisonment, a range the judge could not exceed without
undertaking additional factfinding. Booker, 543 U. S., at
227, 233–234. The judge did so, finding by a preponderance
of the evidence that Booker possessed an amount of drugs in
excess of the amount determined by the jury’s verdict.
That finding boosted Booker into a higher Guidelines range.
Booker was sentenced at the bottom of the higher range, to
360 months in prison. Id., at 227.
In an opinion written by Justice Stevens for a five-
Member majority, the Court held Booker’s sentence imper
missible under the Sixth Amendment. In the majority’s

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judgment, there was “no distinction of constitutional signifi
cance between the Federal Sentencing Guidelines and the
Washington procedures at issue in [Blakely].” Id., at 233.
Both systems were “mandatory and impose[d] binding re
quirements on all sentencing judges.” Ibid.10 Justice
Stevens’ opinion for the Court, it bears emphasis, next ex
pressed a view on which there was no disagreement among
the Justices. He acknowledged that the Federal Guide
lines would not implicate the Sixth Amendment were they
advisory:
“If the Guidelines as currently written could be read
as merely advisory provisions that recommended, rather
than required, the selection of particular sentences in
response to differing sets of facts, their use would
not implicate the Sixth Amendment. We have never
doubted the authority of a judge to exercise broad dis
cretion in imposing a sentence within a statutory range.
Indeed, everyone agrees that the constitutional issues
presented by [this case] would have been avoided en
tirely if Congress had omitted from the [federal Sentenc
ing Reform Act] the provisions that make the Guidelines
binding on district judges . . . . For when a trial judge
exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a
jury determination of the facts that the judge deems
relevant.
10 California’s DSL, we note in this context, resembles pre-Booker fed
eral sentencing in the same ways Washington’s sentencing system did: The
key California Penal Code provision states that the sentencing court
“shall order imposition of the middle term” absent “circumstances in ag
gravation or mitigation of the crime,” § 1170(b) (West 2004) (emphasis
added), and any move to the upper or lower term must be justified by
“a concise statement of the ultimate facts” on which the departure rests,
Rule 4.420(e) (emphasis added). But see post, at 303 (Alito, J., dissent
ing) (characterizing California’s DSL as indistinguishable from post-
Booker sentencing).

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“The Guidelines as written, however, are not advisory;
they are mandatory and binding on all judges.” Ibid.
(citations omitted).
In an opinion written by Justice Breyer, also garnering
a five-Member majority, the Court faced the remedial ques
tion, which turned on an assessment of legislative intent:
What alteration would Congress have intended had it known
that the Guidelines were vulnerable to a Sixth Amendment
challenge? Three choices were apparent: The Court could
invalidate in its entirety the Sentencing Reform Act of 1984
(SRA), the law comprehensively delineating the federal sen
tencing system; or it could preserve the SRA, and the man
datory Guidelines regime the SRA established, by attaching
a jury-trial requirement to any fact increasing a defendant’s
base Guidelines range; finally, the Court could render the
Guidelines advisory by severing two provisions of the SRA,
18 U. S. C. §§ 3553(b)(1) and 3742(e) (2000 ed. and Supp. IV).
543 U. S., at 246–249.11 Recognizing that “reasonable minds
can, and do, differ” on the remedial question, the majority
concluded that the advisory Guidelines solution came closest
to the congressional mark. Id., at 248–258.
Under the system described in Justice Breyer’s opinion
for the Court in Booker, judges would no longer be tied to
the sentencing range indicated in the Guidelines. But they
would be obliged to “take account of ” that range along with
the sentencing goals Congress enumerated in the SRA at 18
11 Title 18 U. S. C. § 3553(b)(1) mandated the imposition of a Guidelines
sentence unless the district court found “an aggravating or mitigating cir
cumstance of a kind, or to a degree, not adequately taken into consider
ation by the Sentencing Commission in formulating the guidelines.” Sec
tion 3742(e) directed the court of appeals to determine, inter alia, whether
the district court correctly applied the Guidelines, § 3742(e)(2), and, if the
sentence imposed fell outside the applicable Guidelines range, whether the
sentencing judge had provided a written statement of reasons, whether
§ 3553(b) and the facts of the case warranted the departure, and whether
the degree of departure was reasonable, § 3742(e)(3).

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U. S. C. § 3553(a). 543 U. S., at 259, 264.12 Having severed
§ 3742(e), the provision of the SRA governing appellate re
view of sentences under the mandatory Guidelines scheme,
see supra, at 286, and n. 11, the Court installed, as consistent
with the SRA and the sound administration of justice, a “rea
sonableness” standard of review. 543 U. S., at 261. With
out attempting an elaborate discussion of that standard, Jus
tice Breyer’s remedial opinion for the Court observed:
“Section 3553(a) remains in effect, and sets forth numerous
factors that guide sentencing. Those factors in turn will
guide appellate courts, as they have in the past, in determin
ing whether a sentence is reasonable.” Ibid.13 The Court
12 Section 3553(a) instructs sentencing judges to consider “the nature
and circumstances of the offense and the history and characteristics of
the defendant,” “the kinds of sentences available,” and the Guidelines and
policy statements issued by the United States Sentencing Commission.
§ 3553(a)(1), (3)–(5). Avoidance of unwarranted sentencing disparities,
and the need to provide restitution, are also listed as concerns to which
the judge should respond. § 3553(a)(6)–(7).
In a further enumeration, § 3553(a) calls for the imposition of “a sentence
sufficient, but not greater than necessary” to “reflect the seriousness of
the offense,” “promote respect for the law,” “provide just punishment for
the offense,” “afford adequate deterrence to criminal conduct,” “protect
the public from further crimes of the defendant,” and “provide the defend
ant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” § 3553(a)(2).
13 While this case does not call for elaboration of the reasonableness
check on federal sentencing post-Booker, we note that the Court has
granted review in two cases raising questions trained on that matter:
Claiborne v. United States, No. 06–5618, post, p. 1016; and Rita v. United
States, No. 06–5754, post, p. 1016. In Claiborne, the Court will consider
whether it is consistent with the advisory cast of the Guidelines system
post-Booker to require that extraordinary circumstances attend a sentence
varying substantially from the Guidelines. Rita includes the question
whether is it consistent with Booker to accord a presumption of reason
ableness to a within-Guidelines sentence.
In this regard, we note Justice Alito’s view that California’s DSL is
essentially the same as post-Booker federal sentencing. Post, at 297–307.
To maintain that position, his dissent previews, without benefit of briefing

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emphasized the provisional character of the Booker remedy.
Recognizing that authority to speak “the last word” resides
in Congress, the Court said:
“The ball now lies in Congress’ court. The National
Legislature is equipped to devise and install, long term,
the sentencing system, compatible with the Constitu
tion, that Congress judges best for the federal system
of justice.” Id., at 265.
We turn now to the instant case in light of both parts of
the Court’s Booker opinion, and our earlier decisions in point.
III
Under California’s DSL, an upper term sentence may be
imposed only when the trial judge finds an aggravating cir
cumstance. See supra, at 277–278. An element of the
charged offense, essential to a jury’s determination of guilt,
or admitted in a defendant’s guilty plea, does not qualify as
such a circumstance. See supra, at 278–279. Instead, ag
gravating circumstances depend on facts found discretely
and solely by the judge. In accord with Blakely, therefore,
the middle term prescribed in California’s statutes, not the
upper term, is the relevant statutory maximum. 542 U. S.,
at 303 (“[T]he ‘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 or admitted by
the defendant.” (emphasis in original)). Because circum
stances in aggravation are found by the judge, not the jury,
and need only be established by a preponderance of the evi
dence, not beyond a reasonable doubt, see supra, at 278, the
DSL violates Apprendi’s bright-line rule: Except for a prior
conviction, “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submit
or argument, how “reasonableness review,” post-Booker, works. Post, at
310–311. It is neither necessary nor proper now to join issue with Jus
tice Alito on this matter.

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ted to a jury, and proved beyond a reasonable doubt,” 530
U. S., at 490.
While “[t]hat should be the end of the matter,” Blakely,
542 U. S., at 313, in People v. Black, the California Supreme
Court held otherwise. In that court’s view, the DSL sur
vived examination under our precedent intact. See 35 Cal.
4th, at 1254–1261, 113 P. 3d, at 543–548. The Black court
acknowledged that California’s system appears on surface in
spection to be in tension with the rule of Apprendi. But
in “operation and effect,” the court said, the DSL “simply
authorize[s] a sentencing court to engage in the type of fact
finding that traditionally has been incident to the judge’s se
lection of an appropriate sentence within a statutorily pre
scribed sentencing range.” 35 Cal. 4th, at 1254, 113 P. 3d,
at 543. Therefore, the court concluded, “the upper term is
the ‘statutory maximum’ and a trial court’s imposition of an
upper term sentence does not violate a defendant’s right to
a jury trial under the principles set forth in Apprendi,
Blakely, and Booker.” Ibid. But see id., at 1270, 113 P. 3d,
at 554 (Kennard, J., concurring and dissenting) (“Nothing in
the high court’s majority opinions in Apprendi, Blakely, and
Booker suggests that the constitutionality of a state’s sen
tencing scheme turns on whether, in the words of the major
ity here, it involves the type of factfinding ‘that traditionally
has been performed by a judge.’ ” (quoting id., at 1253, 113
P. 3d, at 542)).
The Black court’s conclusion that the upper term, and not
the middle term, qualifies as the relevant statutory maxi
mum, rested on several considerations. First, the court rea
soned that, given the ample discretion afforded trial judges
to identify aggravating facts warranting an upper term sen
tence, the DSL
“does not represent a legislative effort to shift the proof
of particular facts from elements of a crime (to be
proved to a jury) to sentencing factors (to be decided by
a judge). . . . Instead, it afforded the sentencing judge

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the discretion to decide, with the guidance of rules and
statutes, whether the facts of the case and the history
of the defendant justify the higher sentence. Such a
system does not diminish the traditional power of the
jury.” Id., at 1256, 113 P. 3d, at 544 (footnote omitted).
We cautioned in Blakely, however, that broad discretion
to decide what facts may support an enhanced sentence, or
to determine whether an enhanced sentence is warranted in
any particular case, does not shield a sentencing system from
the force of our decisions. If the jury’s verdict alone does
not authorize the sentence, if, instead, the judge must find
an additional fact to impose the longer term, the Sixth
Amendment requirement is not satisfied. 542 U. S., at 305,
and n. 8.
The Black court also urged that the DSL is not cause for
concern because it reduced the penalties for most crimes
over the prior indeterminate sentencing regime. 35 Cal.
4th, at 1256–1258, 113 P. 3d, at 544–545. But see id., at
1271–1272, 113 P. 3d, at 555 (Kennard, J., concurring and dis
senting) (“This aspect of our sentencing law does not differ
significantly from the Washington sentencing scheme [the
high court invalidated in Blakely.]”); supra, at 283–284.
Furthermore, California’s system is not unfair to defendants,
for they “cannot reasonably expect a guarantee that the
upper term will not be imposed” given judges’ broad discre
tion to impose an upper term sentence or to keep their pun
ishment at the middle term. 35 Cal. 4th, at 1258–1259, 113
P. 3d, at 545–546. The Black court additionally noted that
the DSL requires statutory enhancements (as distinguished
from aggravators)—e. g., the use of a firearm or other dan
gerous weapon, infliction of great bodily injury, Penal Code
§§ 12022, 12022.7–.8 (West 2000 and Supp. 2006)—to be
charged in the indictment and proved to a jury beyond a
reasonable doubt. 35 Cal. 4th, at 1257, 113 P. 3d, at 545.
The Black court’s examination of the DSL, in short, satis
fied it that California’s sentencing system does not implicate

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significantly the concerns underlying the Sixth Amendment’s
jury-trial guarantee. Our decisions, however, leave no room
for such an examination. Asking whether a defendant’s
basic jury-trial right is preserved, though some facts essen
tial to punishment are reserved for determination by the
judge, we have said, is the very inquiry Apprendi’s “bright
line rule” was designed to exclude. See Blakely, 542 U. S.,
at 307–308. But see Black, 35 Cal. 4th, at 1260, 113 P. 3d,
at 547 (stating, remarkably, that “[t]he high court precedents
do not draw a bright line”).14
Ultimately, the Black court relied on an equation of Cali
fornia’s DSL system to the post-Booker federal system.
“The level of discretion available to a California judge in se
lecting which of the three available terms to impose,” the
court said, “appears comparable to the level of discretion that
the high court has chosen to permit federal judges in post-
Booker sentencing.” 35 Cal. 4th, at 1261, 113 P. 3d, at 548.
The same equation drives Justice Alito’s dissent. See
post, at 297 (“The California sentencing law . . . is indistin
guishable in any constitutionally significant respect from
the advisory Guidelines scheme that the Court approved in
[Booker].”).
The attempted comparison is unavailing. As earlier ex
plained, see supra, at 284–286, this Court in Booker held the
Federal Sentencing Guidelines incompatible with the Sixth
Amendment because the Guidelines were “mandatory and
impose[d] binding requirements on all sentencing judges.”
543 U. S., at 233. “[M]erely advisory provisions,” recom
mending but not requiring “the selection of particular sen
14 Justice Kennedy urges a distinction between facts concerning the
offense, where Apprendi would apply, and facts concerning the offender,
where it would not. Post, at 295 (dissenting opinion). Apprendi itself,
however, leaves no room for the bifurcated approach Justice Kennedy
proposes. See 530 U. S., at 490 (“[A]ny 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.” (emphasis added)).

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tences in response to differing sets of facts,” all Members of
the Court agreed, “would not implicate the Sixth Amend
ment.” Ibid. To remedy the constitutional infirmity found
in Booker, the Court’s majority excised provisions that ren
dered the system mandatory, leaving the Guidelines in place
as advisory only. Id., at 245–246. See also supra, at
286–287.
California’s DSL does not resemble the advisory system
the Booker Court had in view. Under California’s system,
judges are not free to exercise their “discretion to select a
specific sentence within a defined range.” Booker, 543 U. S.,
at 233. California’s Legislature has adopted sentencing tri
ads, three fixed sentences with no ranges between them.
Cunningham’s sentencing judge had no discretion to select a
sentence within a range of 6 to 16 years. Her instruction
was to select 12 years, nothing less and nothing more, unless
she found facts allowing the imposition of a sentence of 6 or
16 years. Factfinding to elevate a sentence from 12 to 16
years, our decisions make plain, falls within the province of
the jury employing a beyond-a-reasonable-doubt standard,
not the bailiwick of a judge determining where the prepon
derance of the evidence lies.
Nevertheless, the Black court attempted to rescue the
DSL’s judicial factfinding authority by typing it simply a rea
sonableness constraint, equivalent to the constraint opera
tive in the federal system post-Booker. See 35 Cal. 4th, at
1261, 113 P. 3d, at 548 (“Because an aggravating factor under
California law may include any factor that the judge reason
ably deems relevant, the [DSL’s] requirement that an upper
term sentence be imposed only if an aggravating factor ex
ists is comparable to Booker’s requirement that a federal
judge’s sentencing decision not be unreasonable.”). Reason
ableness, however, is not, as the Black court would have
it, the touchstone of Sixth Amendment analysis. The rea
sonableness requirement Booker anticipated for the federal
system operates within the Sixth Amendment constraints
delineated in our precedent, not as a substitute for those

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constraints. Because the DSL allocates to judges sole au
thority to find facts permitting the imposition of an upper
term sentence, the system violates the Sixth Amendment.
It is comforting, but beside the point, that California’s sys
tem requires judge-determined DSL sentences to be reason
able. Booker’s remedy for the Federal Guidelines, in short,
is not a recipe for rendering our Sixth Amendment case
law toothless.15
To summarize: Contrary to the Black court’s holding, our
decisions from Apprendi to Booker point to the middle term
specified in California’s statutes, not the upper term, as the
relevant statutory maximum. Because the DSL authorizes
the judge, not the jury, to find the facts permitting an upper
term sentence, the system cannot withstand measurement
against our Sixth Amendment precedent.16
IV
As to the adjustment of California’s sentencing system in
light of our decision, “[t]he ball . . . lies in [California’s]
15 Justice Alito, however, would do just that. His opinion reads the
remedial portion of the Court’s opinion in Booker to override Blakely, and
to render academic the entire first part of Booker itself. Post, at 310–311.
There would have been no majority in Booker for the revision of Blakely
essayed in his dissent. Grounded in a notion of how federal reasonable
ness review operates in practice, Justice Alito “necessarily anticipates”
a question that will be aired later this Term in Rita and Claiborne. Post,
at 311. See supra, at 287–288, n. 13. While we do not forecast the
Court’s responses in those cases, we affirm the continuing vitality of our
prior decisions in point.
16 Respondent and its amici argue that whatever this Court makes of
California’s sentencing law, the Black court’s “construction” of that law as
consistent with the Sixth Amendment is authoritative. Brief for Re
spondent 6, 18, 33; Brief for State of Hawaii et al. as Amici Curiae 17, 29.
We disagree. The Black court did not modify California law so as to align
it with this Court’s Sixth Amendment precedent. See 35 Cal. 4th, at 1273,
113 P. 3d, at 555–556 (Kennard, J., concurring and dissenting). Rather, it
construed this Court’s decisions in an endeavor to render them consistent
with California law. The Black court’s interpretation of federal constitu
tional law plainly does not qualify for this Court’s deference.

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court.” Booker, 543 U. S., at 265; cf. supra, at 288. We note
that several States have modified their systems in the wake
of Apprendi and Blakely to retain determinate sentencing.
They have done so by calling upon the jury—either at trial
or in a separate sentencing proceeding—to find any fact nec
essary to the imposition of an elevated sentence.17 As ear
lier noted, California already employs juries in this manner
to determine statutory sentencing enhancements. See
supra, at 280, 290. Other States have chosen to permit
judges genuinely “to exercise broad discretion . . . within a
statutory range,” 18 which, “everyone agrees,” encounters no
Sixth Amendment shoal. Booker, 543 U. S., at 233. Cali
fornia may follow the paths taken by its sister States or oth
erwise alter its system, so long as the State observes Sixth
Amendment limitations declared in this Court’s decisions.
* * *
For the reasons stated, the judgment of the California
Court of Appeal is reversed in part, and the case is remanded
for further proceedings not inconsistent with this opinion.
It is so ordered.
17 States that have so altered their systems are Alaska, Arizona, Kansas,
Minnesota, North Carolina, Oregon, and Washington. Alaska Stat.
§§ 12.55.155(f), 12.55.125(c) (2004); Ariz. Rev. Stat. Ann. § 13–702.01 (West
Supp. 2006); Kan. Stat. Ann. §§ 21–4716(b), 21–4718(b) (2005 Supp.); Minn.
Stat. § 244.10, subd. 5 (2005 Supp.); N. C. Gen. Stat. Ann. § 15A–1340.16(a1)
(Lexis 2005); 2005 Ore. Sess. Laws, ch. 463, §§ 3(1), 4(1); Wash. Rev. Code
§§ 9.94A.535, 9.94A.537 (2006). The Colorado Supreme Court has adopted
this approach as an interim solution. Lopez v. People, 113 P. 3d 713, 716
(2005) (en banc). See also Stemen & Wilhelm, Finding the Jury: State
Legislative Responses to Blakely v. Washington, 18 Fed. Sentencing Rptr.
7 (Oct. 2005) (majority of affected States have retained determinate sen
tencing systems).
18 See Ind. Code § 35–50–2–1.3(a) (West Supp. 2006); Tenn. Code Ann.
§ 40–35–210(c) (2005 Supp.).

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Kennedy, J., dissenting
Justice Kennedy, with whom Justice Breyer joins,
dissenting.
The dissenting opinion by Justice Alito, which I join in
full, well explains why the Court continues in a wrong and
unfortunate direction in the cases following Apprendi v. New
Jersey, 530 U. S. 466 (2000). See, e. g., United States v.
Booker, 543 U. S. 220, 326–334 (2005) (Breyer, J., dissenting
in part); Blakely v. Washington, 542 U. S. 296, 314–324 (2004)
(O’Connor, J., dissenting); id., at 326–328 (Kennedy, J., dis
senting); see also Apprendi, supra, at 523–554 (O’Connor, J.,
dissenting); Jones v. United States, 526 U. S. 227, 264–272
(1999) (Kennedy, J., dissenting). The discussion in his dis
senting opinion is fully sufficient to show why, in my respect
ful view, the Court’s analysis and holding are mistaken. It
does seem appropriate to add this brief, further comment.
In my view the Apprendi line of cases remains incorrect.
Yet there may be a principled rationale permitting those
cases to control within the central sphere of their concern,
while reducing the collateral, widespread harm to the crimi
nal justice system and the corrections process now resulting
from the Court’s wooden, unyielding insistence on expanding
the Apprendi doctrine far beyond its necessary boundaries.
The Court could distinguish between sentencing enhance
ments based on the nature of the offense, where the Ap
prendi principle would apply, and sentencing enhancements
based on the nature of the offender, where it would not.
California attempted to make this initial distinction. Com
pare Cal. Rule of Court 4.421(a) (Criminal Cases) (West 2006)
(listing aggravating “[f]acts relating to the crime”) with
Rule 4.421(b) (listing aggravating “[f]acts relating to the de
fendant”). The Court should not foreclose its efforts.
California, as the Court notes, experimented earlier with
an indeterminate sentencing system. Ante, at 276–277.
The State reposed vast power and discretion in a nonjudicial
agency to set a release date for convicted felons. That sys

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tem, it seems, would have been untouched by Apprendi.
When the State sought to reform its system, it might have
chosen to give its judges the authority to sentence to a maxi
mum but to depart downward for unexplained reasons.
That too, by considerable irony, would be untouched by Ap
prendi. Instead, California sought to use a system based on
guided discretion. Apprendi, the Court holds today, fore
closes this option.
As dissenting opinions have suggested before, the Consti
tution ought not to be interpreted to strike down all aspects
of sentencing systems that grant judicial discretion with
some legislative direction and control. Judges and legisla
tors must have the capacity to develop consistent standards,
standards that individual juries empaneled for only a short
time cannot elaborate in any permanent way. See, e. g.,
Blakely, 542 U. S., at 314 (opinion of O’Connor, J.); id., at
326–327 (opinion of Kennedy, J.) (explaining that “[s]entenc
ing guidelines are a prime example of [the] collaborative
process” between courts and legislatures). Judges and sen
tencing officials have a broad view and long-term commit
ment to correctional systems. Juries do not. Judicial offi
cers and corrections professionals, under the guidance and
control of the legislature, should be encouraged to participate
in an ongoing manner to improve the various sentencing
schemes in our country.
This system of guided discretion would be permitted to
a large extent if the Court confined the Apprendi rule to
sentencing enhancements based on the nature of the offense.
These would include, for example, the fact that a weapon was
used; violence was employed; a stated amount of drugs or
other contraband was involved; or the crime was motivated
by the victim’s race, gender, or other status protected by
statute. Juries could consider these matters without seri
ous disruption because these factors often are part of the
statutory definition of an aggravated crime in any event and

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because the evidence to support these enhancements is likely
to be a central part of the prosecution’s case.
On the other hand, judicial determination is appropriate
with regard to factors exhibited by the defendant. These
would include, for example, prior convictions; cooperation or
noncooperation with law enforcement; remorse or the lack of
it; or other aspects of the defendant’s history bearing upon
his background and contribution to the community. This is
so even if the relevant facts were to be found by the judge
by a preponderance of the evidence. These are facts that
should be taken into account at sentencing but have little if
any significance for whether the defendant committed the
crime. See Berman & Bibas, Making Sentencing Sensible,
4 Ohio St. J. Crim. L. 37, 55–57 (2006).
The line between offense and offender would not always
be clear, but in most instances the nature of the offense is
defined in a manner that ensures the problem of categories
would not be difficult. Apprendi suffers from a similar
line-drawing problem between facts that must be considered
by the jury and other considerations that a judge can take
into account. The main part of the Apprendi holding could
be retained with far less systemic disruption. It is to be
regretted that the Court’s decision today appears to foreclose
consideration of this approach or other reasonable efforts to
develop systems of guided discretion within the general con
straint that Apprendi imposes.
Justice Alito, with whom Justice Kennedy and Jus
tice Breyer join, dissenting.
The California sentencing law that the Court strikes down
today is indistinguishable in any constitutionally significant
respect from the advisory Guidelines scheme that the Court
approved in United States v. Booker, 543 U. S. 220 (2005).
Both sentencing schemes grant trial judges considerable
discretion in sentencing; both subject the exercise of that

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discretion to appellate review for “reasonableness”; and
both—the California law explicitly, and the federal scheme
implicitly—require a sentencing judge to find some factor to
justify a sentence above the minimum that could be imposed
based solely on the jury’s verdict. Because this Court has
held unequivocally that the post-Booker federal sentencing
system satisfies the requirements of the Sixth Amendment,
the same should be true with regard to the California sys
tem. I therefore respectfully dissent.
I
In Apprendi v. New Jersey, 530 U. S. 466 (2000), and the
cases that have followed in its wake, the Court has held that
under certain circumstances a criminal defendant possesses
the Sixth Amendment right to have a jury find facts that
result in an increased sentence. The Court, however, has
never suggested that all factual findings that affect a defend
ant’s sentence must be made by a jury. On the contrary, in
Apprendi and later cases, the Court has consistently stated
that when a trial court makes a fully discretionary sentenc
ing decision (such as a sentencing decision under the pre-
Sentencing Reform Act of 1984 federal sentencing system),
the Sixth Amendment permits the court to base the sentence
on its own factual findings. See id., at 481; Blakely v. Wash
ington, 542 U. S. 296, 305 (2004); Booker, supra, at 233; see
also Harris v. United States, 536 U. S. 545, 558 (2002) (plural
ity opinion).1
1 The Court’s recognition of this is hardly surprising since, as Judge
McConnell has pointed out, “fully discretionary sentencing . . . was the
system [that was] in place when the Sixth Amendment was adopted” and
that “prevailed in the federal courts from the Founding until enactment
of the Sentencing Reform Act of 1984 . . . without anyone ever suggesting
a conflict with the Sixth Amendment.” The Booker Mess, 83 Denver
U. L. Rev. 665, 679 (2006). Indeed, the original federal criminal statute
enacted by the First Congress set forth indeterminate sentencing ranges
for a variety of offenses, leaving the determination of the precise sentence
to the judge’s discretion. See, e. g., Act of Apr. 30, 1790, ch. 9, § 2, 1 Stat.

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Applying this rule, the Booker Court unanimously agreed
that judicial factfinding under a purely advisory guidelines
system would likewise comport with the Sixth Amendment.
Writing for the five Justices who struck down the mandatory
Federal Sentencing Guidelines system, Justice Stevens
stated:
“If the Guidelines as currently written could be read
as merely advisory provisions that recommended, rather
than required, the selection of particular sentences
in response to differing sets of facts, their use would
not implicate the Sixth Amendment. We have never
doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory
range. . . . For when a trial judge exercises his discretion
to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the
facts that the judge deems relevant.” Booker, supra,
at 233.2
In a similar vein, the remedial portion of the Court’s opin
ion in Booker, written by Justice Breyer, held that the
Sixth Amendment permits a system of advisory guidelines
with reasonableness review.3 Justice Breyer’s opinion
112 (crime of misprision of treason punishable by imprisonment not ex
ceeding seven years and fine not exceeding $1,000); § 6, id., at 113 (crime
of misprision of a felony punishable by imprisonment not exceeding three
years and fine not exceeding $500); § 15, id., at 115–116 (crime of falsifying
federal records punishable by imprisonment not exceeding seven years,
fine not exceeding $5,000, and whipping not exceeding 39 stripes); see
generally Little & Chen, The Lost History of Apprendi and the Blakely
Petition for Rehearing, 17 Fed. Sentencing Rptr. 69 (2004).
2 The four Justices who would have upheld the constitutionality of the
mandatory Federal Sentencing Guidelines system did not, of course, dis
agree with this basic point. Indeed, they were of the view that “[h]istory
does not support a ‘right to jury trial’ in respect to sentencing facts.”
Booker, 543 U. S., at 328 (Breyer, J., dissenting in part).
3 While the dissenters from the remedial portion of the Court’s opinion
disagreed with Justice Breyer’s severability analysis, they did not sug

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avoided a blanket invalidation of the Guidelines by excising
the provision of the Sentencing Reform Act, 18 U. S. C.
§ 3553(b)(1) (2000 ed., Supp. IV), that required a sentencing
judge to impose a sentence within the applicable Guidelines
range. See Booker, 543 U. S., at 259. As Justice Breyer
explained, “the existence of § 3553(b)(1) is a necessary condi
tion of the constitutional violation. That is to say, without
this provision . . . the statute falls outside the scope of Ap
prendi’s requirement.” Ibid.
Under the post-Booker federal sentencing system, “[t]he
district courts, while not bound to apply the Guidelines, must
consult those Guidelines and take them into account when
sentencing.” Id., at 264. In addition, sentencing courts
must take account of the general sentencing goals set forth
by Congress, including avoiding unwarranted sentencing
disparities, providing restitution to victims, reflecting the se
riousness of the offense, promoting respect for the law, pro
viding just punishment, affording adequate deterrence, pro
tecting the public, and effectively providing the defendant
with needed educational or vocational training and medical
care. See id., at 260 (citing 18 U. S. C. § 3553(a) (2000 ed.
and Supp. IV)).
It is significant that Booker, while rendering the Guide
lines advisory, did not reinstitute the pre-Guidelines federal
sentencing system, under which “well-established doctrine
bar[red] review of the exercise of sentencing discretion”
within the broad sentencing ranges imposed by the crim
inal statutes. Dorszynski v. United States, 418 U. S. 424,
443 (1974). Rather, Booker conditioned a district court’s
sentencing discretion on appellate review for “reasonable
gest that the resulting “advisory Guidelines” structure was unconstitu
tional. Rather, they recognized—as Justice Stevens explained in his
portion of the Court’s opinion—that “[i]f the Guidelines as currently writ
ten could be read as merely advisory provisions that recommended, rather
than required, the selection of particular sentences in response to differing
sets of facts, their use would not implicate the Sixth Amendment.” Id.,
at 233.

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ness” in light of the Guidelines and the § 3553(a) factors.
See Booker, supra, at 261 (“Section 3553(a) remains in ef
fect, and sets forth numerous factors that guide sentencing.
Those factors in turn will guide appellate courts, as they
have in the past, in determining whether a sentence is
unreasonable”).
Although the Booker Court did not spell out in detail how
sentencing judges are to proceed under the new advisory
Guidelines regime, it seems clear that this regime permits—
and, indeed, requires—sentencing judges to make factual
findings and to base their sentences on those findings. The
federal criminal statutes generally set out wide sentencing
ranges, and thus in each case a sentencing judge must use
some criteria in selecting the sentence to be imposed. In
doing this, federal judges have generally made and relied
upon factual determinations about the nature of the offense
and the offender—and it is impossible to imagine how federal
judges could reasonably carry out their sentencing responsi
bilities without making such factual determinations.
Under the mandatory Federal Sentencing Guidelines re
gime, these factual determinations were relatively formal
and precise. (For example, a trial judge under that regime
might have found based on a post-trial proceeding that a
drug offense involved six kilograms of cocaine or that the
loss caused by a mail fraud offense was $2.5 million.) By
contrast, under the pre-Sentencing Reform Act federal sys
tem, the factual determinations were often relatively infor
mal and imprecise. (A trial judge might have concluded
from the presentence report that an offense involved “a large
quantity of drugs” or that a mail fraud scheme caused
“a great loss.”) Under both systems, however, the judges
made factual determinations about the nature of the offense
and the offender and determined the sentence accordingly.
And as the Courts of Appeals have unanimously concluded,
the post-Booker federal sentencing regime also permits trial
judges to make such factual findings and to rely on those

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findings in selecting the sentences that are appropriate in
particular cases.4
Under the post-Booker system, if a defendant believes that
his or her sentence was based on an erroneous factual deter
mination, it seems clear that the defendant may challenge
that finding on appeal. As noted, the post-Booker system
permits a defendant to obtain appellate review of the reason
ableness of a sentence, and a sentence that the sentencing
court justifies solely on the basis of an erroneous finding of
fact can hardly be regarded as reasonable. Thus, under the
post-Booker system, there will be cases—and, in all likeli
hood, a good many cases—in which the question whether a
defendant will be required to serve a greater or lesser sen
tence depends on whether a court of appeals sustains a find
ing of fact made by the sentencing judge.
A simple example illustrates this point. Suppose that a
defendant is found guilty of 10 counts of mail fraud in that
the defendant made 10 mailings in furtherance of a scheme
to defraud. See 18 U. S. C. § 1341 (2000 ed., Supp. IV).
Under the mail fraud statute, the district court would have
discretion to sentence the defendant to any sentence ranging
from probation up to 200 years of imprisonment (20 years on
each count). Suppose that the sentencing judge imposes the
maximum sentence allowed by statute—200 years of impris
onment—without identifying a single fact about the offense
4 Every Court of Appeals to address the issue has held that a district
court sentencing post-Booker may rely on facts found by the judge by a
preponderance of the evidence. See United States v. Kilby, 443 F. 3d
1135, 1141 (CA9 2006); United States v. Cooper, 437 F. 3d 324, 330 (CA3
2006); United States v. Vaughn, 430 F. 3d 518, 525–526 (CA2 2005); United
States v. Morris, 429 F. 3d 65, 72 (CA4 2005); United States v. Price, 418
F. 3d 771, 788 (CA7 2005); United States v. Magallanez, 408 F. 3d 672,
684–685 (CA10 2005); United States v. Pirani, 406 F. 3d 543, 551, n. 4 (CA8
2005) (en banc); United States v. Yagar, 404 F. 3d 967, 972 (CA6 2005);
United States v. Mares, 402 F. 3d 511, 519, and n. 6 (CA5 2005); United
States v. Duncan, 400 F. 3d 1297, 1304–1305 (CA11 2005); United States v.
Antonakopoulos, 399 F. 3d 68, 74 (CA1 2005).

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or the offender as a justification for this lengthy sentence.
Surely that would be an unreasonable sentence that could
not be sustained on appeal.
Suppose, alternatively, that the sentencing court finds that
the mail fraud scheme caused a loss of $1 million and that
the victims were elderly people of limited means, and sup
pose that the court, based on these findings, imposes a sen
tence of 10 years of imprisonment. If the defendant chal
lenges the sentence on appeal on the ground that these
findings are erroneous, the question whether the defendant
will be required to serve 10 years or some lesser sentence
may well depend on the validity of the district court’s find
ings of fact.
Bo oke r, then, approve d a se nt en ci ng sy st em th at
(1) requires a sentencing judge to “consult” and “take into
account” legislatively defined sentencing factors and guide
lines; (2) subjects a sentencing judge’s exercise of sentencing
discretion to appellate review for “reasonableness”; and
(3) requires sentencing judges to make factual findings in
order to support the exercise of this discretion.
II
The California sentencing law that the Court strikes down
today is not meaningfully different from the federal scheme
upheld in Booker.
As an initial matter, the California law gives a judge at
least as much sentencing discretion as does the post-Booker
federal scheme. California’s system of sentencing triads
and separate “enhancements” 5 was enacted to achieve sen
tences “in proportion to the seriousness of the offense as
determined by the Legislature to be imposed by the court
with specified discretion.” Cal. Penal Code Ann. § 1170(a)(1)
(West Supp. 2006). This “specified discretion” is quite
5 These enhancements, which add additional years onto the base-term
triad selected by the court, see ante, at 280, must be pleaded and proved
to a jury beyond a reasonable doubt. They are not at issue in this case.

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broad. Under the statute, a sentencing court “shall order
imposition of the middle term” of the base-term triad, “un
less there are circumstances in aggravation or mitigation of
the crime.” § 1170(b). While the court may not rely on any
fact that is an essential element of the crime or of a proven
enhancement, the “sentencing judge retains considerable dis
cretion to identify aggravating factors.” People v. Black, 35
Cal. 4th 1238, 1247, 113 P. 3d 534, 538 (2005).
In exercising its sentencing discretion, a California court
can look to any of the 16 specific aggravating circumstances,
see Cal. Rule of Court 4.421 (Criminal Cases) (West 2006),
or 15 specific mitigating circumstances, see Rule 4.423, item
ized in the California Rules of Court. A California trial
court can also consider the “[g]eneral objectives of sentenc
ing,” including protecting society, punishing the defendant,
encouraging the defendant to lead a law-abiding life and de
terring the defendant from committing future offenses, de
terring others from criminal conduct by demonstrating its
consequences, preventing the defendant from committing
new crimes by means of incarceration, securing restitution
for crime victims, and achieving uniformity in sentencing.6
Rule 4.410(a). And if a California trial court finds that its
sentencing authority is unduly restricted by these factors,
which the California Supreme Court has recognized “are
largely the articulation of considerations sentencing judges
have always used in making these decisions,” People v.
Hernandez, 46 Cal. 3d 194, 205, 757 P. 2d 1013, 1019 (1988),
overruled on other grounds, People v. King, 5 Cal. 4th 59, 78,
n. 5, 851 P. 2d 27, 39, n. 5 (1993), a California sentencing
judge is also authorized to consider any “additional crite
ria reasonably related to the decision being made,” Rule
6 These factors are similar to the federal sentencing policies set forth in
18 U. S. C. § 3553(a) (2000 ed. and Supp. IV), which directs a court to con
sider, among other things, the need to promote respect for the law, to
provide just punishment for the offense, to afford adequate deterrence to
criminal conduct, and to protect the public.

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4.408(a); see also Black, supra, at 1256, 113 P. 3d, at 544
(“The Legislature did not identify all of the particular facts
that could justify the upper term”).7
In short, under California law, the “ ‘circumstances’ the
sentencing judge may look to in aggravation or in mitigation
of the crime include . . . ‘practically everything which has
a legitimate bearing’ on the matter in issue.” People v.
Guevara, 88 Cal. App. 3d 86, 93, 151 Cal. Rptr. 511, 516
(1979); see also Rule 4.410(b) (“The sentencing judge should
be guided by statutory statements of policy, the criteria in
these rules, and the facts and circumstances of the case”).
Indeed, as one California court has explained, sentencing dis
cretion may even be guided by a “judge’s subjective determi
nation of . . . the appropriate aggregate sentence” based on
his “experiences with prior cases and the record in the de
fendant’s case.” People v. Stevens, 205 Cal. App. 3d 1452,
1457, 253 Cal. Rptr. 173, 177 (1988). “A judge’s subjective
belief regarding the length of the sentence to be imposed
is not improper as long as it is channeled by the guided
7 As the California Supreme Court explained in Black:
“In adopting the sentencing rules, the Judicial Council considered and
rejected proposals that the rules provide an exclusive list of sentencing
criteria and that the criteria be assigned specific weights, on the ground
that the Legislature intended to give the sentencing judge discretion in
selecting among the lower, middle, and upper terms. The report on which
the Judicial Council acted in adopting the rules explains that ‘an exclusive
listing would be inconsistent with the statutory mandate to adopt “rules
providing criteria for the consideration of the trial judge” [§ 1170.3] since
this language does not purport to limit the discretion afforded the court
in each of the five enumerated sentencing decisions, but calls for criteria
which will assist the courts in the exercise of that discretion.’ (Judicial
Council of Cal., Advisory Com. Rep., Sentencing Rules and Sentencing
Reporting System (1977) p. 6.) ‘Any attempt to impose a weighting sys
tem on trial courts . . . would be an infringement on the sentencing power
of the court.’ (Id., p. 8.) ‘The substantive law, and section 1170(a)(1),
give discretion to the trial court; the rules can guide, but cannot compel,
the exercise of that discretion.’ (Id., p. 11.)” 35 Cal. 4th, at 1256, n. 11,
113 P. 3d, at 544, n. 11.

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discretion outlined in the myriad of statutory sentencing
criteria.” Ibid.
The California scheme—like the federal “advisory Guide
lines”—does require that this discretion be exercised reason
ably. Indeed, the California Supreme Court, authorita
tively construing the California statute,8 has explained that
§ 1170(b)’s “requirement that an aggravating factor exist is
merely a requirement that the decision to impose the upper
term be reasonable.” Black, 35 Cal. 4th, at 1255, 113 P. 3d,
at 544 (emphasis in original); see also id., at 1257–1258, 113
P. 3d, at 545 (“The jury’s verdict of guilty on an offense au
thorizes the judge to sentence a defendant to any of the three
terms specified by statute as the potential punishments for
that offense, as long as the judge exercises his or her discre
tion in a reasonable manner that is consistent with the re
quirements and guidelines contained in statutes and court
rules”). Even when a court imposes the “presumptive” mid
dle term, its decision is reviewable for abuse of discretion—
that is, its decision to sentence at the “standard” term must
be reasonable. See People v. Cattaneo, 217 Cal. App. 3d
1577, 1587–1588, 266 Cal. Rptr. 710, 716 (1990).
Moreover, the California system, like the post-Booker fed
eral regime, recognizes that a sentencing judge must have
the ability to look at all the relevant facts—even those out
side the trial record and jury verdict—in exercising his or
8 The Court correctly notes that we need not defer to the California
Supreme Court’s construction of federal law, including its judgment as to
whether California law is consistent with our Sixth Amendment jurispru
dence. See ante, at 293, n. 16. But the California Supreme Court’s expo
sition of California law is authoritative and binding on this Court. See,
e. g., Mullaney v. Wilbur, 421 U. S. 684, 691 (1975) (“[S]tate courts are the
ultimate expositors of state law [and] we are bound by their constructions
except in extreme circumstances”); Wainwright v. Goode, 464 U. S. 78, 84
(1983) (per curiam) (“[T]he views of the State’s highest court with respect
to state law are binding on the federal courts”); Ring v. Arizona, 536 U. S.
584, 603 (2002) (recognizing the Arizona Supreme Court’s construction of
Arizona sentencing law as authoritative).

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her discretion. “The judicial factfinding that occurs during
that selection process is the same type of judicial factfinding
that traditionally has been a part of the sentencing process.”
Black, supra, at 1258, 113 P. 3d, at 545.
III
Despite these similarities between the California system
and the “advisory Guidelines” scheme approved in Booker,
the Court nevertheless holds that the California regime runs
afoul of the Sixth Amendment. The Court reasons as fol
lows: (1) California requires that some aggravating fact,
apart from the elements of the offense found by the jury,
must support an upper term sentence; (2) Blakely defined
the “statutory maximum” to be “the maximum sentence a
judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant,” 542 U. S., at
303 (emphasis in original); and therefore (3) the California
regime violates “Apprendi’s bright-line rule,” id., at 308, 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,” Apprendi, 530
U. S., at 490.
This argument is flawed. For one thing, it is not at all
clear that a California court must find some case-specific, ad
judicative “fact” (as opposed to identifying a relevant policy
consideration) before imposing an upper term sentence.
What a California sentencing court must find is a “circum
stanc[e] in aggravation,” Cal. Penal Code Ann. § 1170(b)
(emphasis added), which, California’s Court Rules make
clear, can include any “criteria reasonably related to the deci
sion being made,” Rule 4.408(a).
California courts are thus empowered to take into account
the full panoply of factual and policy considerations that have
traditionally been considered by judges operating under fully
discretionary sentencing regimes—the constitutionality of
which the Court has repeatedly reaffirmed. California law

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explicitly authorizes a sentencing court to take into account,
for example, broad sentencing objectives like punishment,
deterrence, restitution, and uniformity, see Rule 4.410, and
even a judge’s “subjective belief ” as to the appropriateness
of the sentence, see Stevens, 205 Cal. App. 3d, at 1457, 253
Cal. Rptr., at 177, as long as the final result is reasonable.9
Policy considerations like these have always been outside the
province of the jury and do not implicate the Sixth Amend
ment concerns expressed in Apprendi.
In short, the requirement that a California court find some
“circumstanc[e] in aggravation” before imposing an upper
term sentence is not the same as a requirement that it find
an aggravating fact. And if a California sentencing court
need not find a fact beyond those “reflected in the jury ver
dict or admitted by the defendant,” Blakely, supra, at 303
(emphasis deleted), then Apprendi’s “bright-line rule” plainly
does not apply.10
9 The State of California acknowledged in its brief that “[t]he court can
rely on essentially any reason placing the defendant’s particular offense
outside the mean when selecting” which term of the triad to impose.
Brief for Respondent 32. As California’s counsel acknowledged at oral
argument, a concern for deterrence in light of an uptick in crime in a
particular community, for example, could be a “circumstanc[e] in aggrava
tion” supporting imposition of an upper term sentence under California
law, even though that concern is not based on judge-found, case-specific
facts. See Tr. of Oral Arg. 32–40.
10 It is true that California’s Court Rules also itemize more concrete
aggravating circumstances that they label “[f]acts relating to the crime”
and “[f]acts relating to the defendant.” See Cal. Rules of Court 4.421 and
4.423 (Criminal Cases) (West 2006). But these lists are not exhaustive,
and they do not impair a court’s ability to take into account more general
sentencing objectives in deciding whether to sentence a defendant to the
upper term. The Rules’ provision that “[c]ircumstances in aggravation
and mitigation shall be established by a preponderance of the evidence,”
Rule 4.420(b), is clearly meant to cover the types of crime- and defendant
specific adjudicative facts set forth in the Rules immediately following;
there is nothing to suggest that this provision excludes consideration of
more general sentencing objectives that are not conducive to such trial
type proof. As the Rules explicitly recognize, these different categories

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But even if the California law did require that a sentencing
court find some aggravating “fact” before imposing an upper
term sentence, that would not make this case constitutionally
distinguishable from Booker. As previously explained, the
“advisory Guidelines,” bounded by reasonableness review,
effectively (albeit less explicitly) impose the same require
ment on federal judges. Booker’s reasonableness review
necessarily supposes that some sentences will be unreason
able in the absence of additional facts justifying them. (Re
call the prior hypothetical case in which it was posited that
the district court imposed a sentence of 200 years of impris
onment for mail fraud without citing a single aggravating
fact about the offense or the offender.) Thus, although the
post-Booker Guidelines are labeled “advisory,” reasonable
ness review imposes a very real constraint on a judge’s abil
ity to sentence across the full statutory range without find
ing some aggravating fact.11
of sentencing considerations are not mutually exclusive. See Rule
4.410(b) (“The sentencing judge should be guided by statutory statements
of policy, the criteria in these rules, and the facts and circumstances of
the case”).
11 The Court believes that in order to reach this conclusion, I must “pre
vie[w] . . . how ‘reasonableness review,’ post-Booker, works,” ante, at 287–
288, n. 13, and perhaps even prejudge this Court’s forthcoming decisions
in Rita v. United States and Claiborne v. United States, ante, at 293, n. 15.
But my point is much more modest. We need not map all the murky
contours of the post-Booker landscape in order to conclude that reason
ableness review must mean something. If reasonableness review is more
than just an empty exercise, there inevitably will be some sentences that,
absent any judge-found aggravating fact, will be unreasonable. One need
not embrace any presumption of reasonableness or unreasonableness to
accept this simple point. If this is the case—and I cannot see how it is
not, given the Court’s endorsement of reasonableness review in Booker—
then there is no meaningful Sixth Amendment difference between Cali
fornia’s sentencing system and the post-Booker “advisory Guidelines.”
Under both, a sentencing judge operating under a reasonableness con
straint must find facts beyond the jury’s verdict in order to justify the
imposition of at least some sentences at the high end of the statutory
range.

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310 CUNNINGHAM v. CALIFORNIA
Alito, J., dissenting
The Court downplays the significance of Booker reason
ableness review on the ground that Booker-style “reason
ableness . . . operates within the Sixth Amendment con
straints delineated in our precedent, not as a substitute for
those constraints.” Ante, at 292–293 (emphasis in original).
But this begs the question, which concerns the scope of those
“Sixth Amendment constraints.” That question is answered
by the Court’s remedial holding in Booker, which necessarily
stands for the proposition that it is consistent with the Sixth
Amendment for the imposition of an enhanced sentence to
be conditioned on a factual finding made by a sentencing
judge and not by a jury.
The Court relies heavily on Blakely’s admonition 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 or admitted by the defendant.”
542 U. S., at 303 (emphasis in original). But the Court fails
to recognize how this statement must be understood in the
wake of Booker.
For each statutory offense, there must be a sentence that
represents the least onerous sentence that can be regarded
as reasonable in light of the bare statutory elements found
by the jury. To return to our prior example of a mail fraud
offense, there must be some sentence that represents the
least onerous sentence that would be appropriate in a case
in which the statutory elements of mail fraud are satisfied
but in which the offense and the offender are as little deserv
ing of punishment as can be imagined. (Whether this sen
tence is the statutory minimum (probation, see 18 U. S. C.
§ 1341 (2000 ed., Supp. IV)) or the minimum under the advi
sory Guidelines (also probation, see United States Sentenc
ing Commission, Guidelines Manual § 2B1.1 and Sentencing
Table (Nov. 2006)) is irrelevant for present purposes; what
is relevant is that there must be some minimum reasonable
sentence.) This sentence is “the maximum sentence” that
could reasonably be imposed “solely on the basis of the facts

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311 Cite as: 549 U. S. 270 (2007)
Alito, J., dissenting
reflected in the jury verdict or admitted by the defendant.”
Blakely, supra, at 303 (emphasis deleted).
Booker’s reasonableness review necessarily anticipates
that the imposition of sentences above this level may be con
ditioned upon findings of fact made by a judge and not by
the jury. Booker held that a system of “advisory Guide
lines” with reasonableness review is consistent with the
Sixth Amendment, and the same analysis should govern Cal
ifornia’s “requirement that the decision to impose the upper
term be reasonable.” Black, 35 Cal. 4th, at 1255, 113 P. 3d,
at 544 (emphasis in original). That the California require
ment is explicit, while the federal aggravating factor require
ment is (at least for now) implicit, should not be constitution
ally dispositive.
Unless the Court is prepared to overrule the remedial
decision in Booker, the California sentencing scheme at issue
in this case should be held to be consistent with the Sixth
Amendment. I would therefore affirm the decision of the
California Court of Appeal.