SHEPARD v. UNITED STATES

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
13 OCTOBER TERM, 2004
Syllabus
SHEPARD v. UNITED STATES
certiorari to the united states court of appeals for
the first circuit
No. 03–9168. Argued November 8, 2004—Decided March 7, 2005
After petitioner Shepard pleaded guilty to being a felon in possession of
a firearm in violation of 18 U. S. C. § 922(g)(1), the Government sought
to increase his sentence from a 37-month maximum to the 15-year mini-
mum that § 924(e), popularly known as the Armed Career Criminal Act
(ACCA), mandates for such felons who have three prior convictions for
violent felonies or drug offenses. Shepard’s predicate felonies were
Massachusetts burglary convictions entered upon guilty pleas. This
Court has held that only “generic burglary”—meaning, among other
things, that it was committed in a building or enclosed space—is a vio-
lent crime under the ACCA, Taylor v. United States, 495 U. S. 575, 599,
and that a court sentencing under the ACCA can look to statutory ele-
ments, charging documents, and jury instructions to determine whether
an earlier conviction after a jury trial was for generic burglary in States
(like Massachusetts) with broader burglary definitions, id., at 602. Re-
fusing to consider the 15-year minimum, the District Court found that
a Taylor investigation did not show that Shepard had three generic bur-
glary convictions and rejected the Government’s argument that the
court should examine police reports and complaint applications in deter-
mining whether Shepard’s guilty pleas admitted and supported generic
burglary convictions. The First Circuit vacated, ruling that such re-
ports and applications should be considered. On remand, the District
Court again declined to impose the enhanced sentence. The First Cir-
cuit vacated.
Held: The judgment is reversed, and the case is remanded.
348 F. 3d 308, reversed and remanded.
Justice Souter delivered the opinion of the Court, except as to
Part III, concluding that enquiry under the ACCA to determine
whether a guilty plea to burglary under a nongeneric statute necessarily
admitted elements of the generic offense is limited to the terms of the
charging document, to the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the defendant confirmed
the factual basis for the plea, or to some comparable judicial record of
this information. Guilty pleas may establish ACCA predicate offenses,
and Taylor’s reasoning controls the identification of generic convictions
following pleas, as well as convictions on verdicts, in States with nonge-

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
14 SHEPARD v. UNITED STATES
Syllabus
neric offenses. The ACCA nowhere provides that convictions in tried
and pleaded cases should be regarded differently, and nothing in Tay-
lor’s rationale limits it to prior jury convictions. This Court, then, must
find the right analogs for applying Taylor to pleaded cases. The Taylor
Court drew a pragmatic conclusion about the best way to identify ge-
neric convictions in jury cases. In cases tried without a jury, the closest
analogs to jury instructions would be a bench-trial judge’s formal ruling
of law and finding of fact; in pleaded cases, they would be the statement
of factual basis for the charge shown by a transcript of plea colloquy or
by written plea agreement presented to the court, or by a record of
comparable findings of fact adopted by the defendant upon entering the
plea. A later court could generally tell from such material whether the
prior plea had “necessarily” rested on the fact identifying the burglary
as generic. Taylor, supra, at 602. The Government’s arguments for a
wider evidentiary cast that includes documents submitted to lower
courts even prior to charges amount to a call to ease away from Taylor’s
conclusion that respect for congressional intent and avoidance of collat-
eral trials require confining generic conviction evidence to the convict-
ing court’s records approaching the certainty of the record of conviction
in a generic crime State. That was the heart of the Taylor decision,
and there is no justification for upsetting that precedent where the
Court is dealing with statutory interpretation and where Congress has
not, in the nearly 15 years since Taylor, taken any action to modify the
statute. Pp. 19–23, 26.
Justice Souter, joined by Justice Stevens, Justice Scalia, and
Justice Ginsburg, concluded in Part III that the rule in the Jones v.
United States, 526 U. S. 227, 243, n. 6, and Apprendi v. New Jersey, 530
U. S. 466, 490, line of cases—that any fact other than a prior conviction
sufficient to raise the limit of the possible federal sentence must be
found by a jury, absent a waiver by the defendant—is also relevant to
ACCA sentencing. In a nongeneric State, the fact necessary to show a
generic crime is not established by the record of conviction as it would
be in a generic State when a judicial finding of a disputed prior convic-
tion is made on the authority of Almendarez-Torres v. United States,
523 U. S. 224. Instead, the sentencing judge considering the ACCA en-
hancement would (on the Government’s view) make a disputed finding
of fact about what the defendant and state judge must have understood
as the prior plea’s factual basis, and the dispute raises the concern un-
derlying Jones and Apprendi: the Sixth and Fourteenth Amendments
guarantee a jury’s standing between a defendant and the power of the
State, and they guarantee a jury’s finding of any disputed fact essential
to increase a potential sentence’s ceiling. The disputed fact here is too
far removed from the conclusive significance of a prior judicial record,

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
15 Cite as: 544 U. S. 13 (2005)
Opinion of the Court
and too much like the findings subject to Jones and Apprendi, to say
that Almendarez-Torres clearly authorizes a judge to resolve the dis-
pute. The rule of reading statutes to avoid serious risks of unconstitu-
tionality therefore counsels the Court to limit the scope of judicial fact-
finding on the disputed generic character of a prior plea. Pp. 24–26.
Justice Thomas agreed that the Court should not broaden the scope
of the evidence judges may consider under Taylor v. United States, 495
U. S. 575, because it would give rise to constitutional error, not constitu-
tional doubt. Both Almendarez-Torres v. United States, 523 U. S. 224,
and Taylor, which permit judicial factfinding that concerns prior convic-
tions, have been eroded by this Court’s subsequent Sixth Amendment
jurisprudence. Pp. 26–28.
Souter, J., delivered an opinion, which was for the Court except as to
Part III. Stevens, Scalia, and Ginsburg, JJ., joined that opinion in
full, and Thomas, J., joined except as to Part III. Thomas, J., filed an
opinion concurring in part and concurring in the judgment, post, p. 26.
O’Connor, J., filed a dissenting opinion, in which Kennedy and Breyer,
JJ., joined, post, p. 28. Rehnquist, C. J., took no part in the decision of
the case.
Linda J. Thompson, by appointment of the Court, 543
U. S. 806, argued the cause for petitioner. With her on the
briefs were John M. Thompson and Jeffrey T. Green.
John P. Elwood argued the cause for the United States.
With him on the brief were Acting Solicitor General Clem-
ent, Assistant Attorney General Wray, and Deputy Solicitor
General Dreeben.*
Justice Souter delivered the opinion of the Court, ex-
cept as to Part III.
Title 18 U. S. C. § 924(e) (2000 ed. and Supp. II), popularly
known as the Armed Career Criminal Act (ACCA), man-
dates a minimum 15-year prison sentence for anyone possess-
ing a firearm after three prior convictions for serious drug
offenses or violent felonies. The Act makes burglary a vio-
*Gregory L. Poe, Roy T. Englert, Jr., Max Huffman, and Pamela Har-
ris filed a brief for the National Association of Criminal Defense Lawyers
as amicus curiae urging reversal.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
16 SHEPARD v. UNITED STATES
Opinion of the Court
lent felony only if committed in a building or enclosed space
(“generic burglary”), not in a boat or motor vehicle. In Tay-
lor v. United States, 495 U. S. 575 (1990), we held that a court
sentencing under the ACCA could look to statutory ele-
ments, charging documents, and jury instructions to deter-
mine whether an earlier conviction after trial was for generic
burglary. The question here is whether a sentencing court
can look to police reports or complaint applications to deter-
mine whether an earlier guilty plea necessarily admitted,
and supported a conviction for, generic burglary. We hold
that it may not, and that a later court determining the char-
acter of an admitted burglary is generally limited to exam-
ining the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.
I
Petitioner Reginald Shepard was indicted under 18
U. S. C. § 922(g)(1), barring felons from possessing a firearm,
and pleaded guilty. At sentencing the Government claimed
that Shepard’s prior convictions raised his sentencing range
from between 30 and 37 months (under the United States
Sentencing Guidelines) to the 15-year minimum required by
§ 924(e), pointing to four prior convictions entered upon
Shepard’s pleas of guilty under one of Massachusetts’s two
burglary statutes.1 Whereas the Government said that each
conviction represented a predicate ACCA offense of generic
burglary, the District Court ruled that Taylor barred count-
ing any of the prior convictions as predicates for the manda-
tory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000).
In Taylor we read the listing of “burglary” as a predicate
“violent felony” (in the ACCA) to refer to what we called
1 The Government initially cited a fifth prior burglary conviction, but
after failing to obtain adequate documentation about this conviction the
Government focused on the other four.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
17 Cite as: 544 U. S. 13 (2005)
Opinion of the Court
“generic burglary,” an “unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to com-
mit a crime.” 495 U. S., at 599. Because statutes in some
States (like Massachusetts) define burglary more broadly, as
by extending it to entries into boats and cars, we had to
consider how a later court sentencing under the ACCA might
tell whether a prior burglary conviction was for the generic
offense.2 We held that the ACCA generally prohibits the
later court from delving into particular facts disclosed by the
record of conviction, thus leaving the court normally to “look
only to the fact of conviction and the statutory definition of
the prior offense.” Id., at 602. We recognized an exception
to this “categorical approach” only for “a narrow range of
cases where a jury [in a State with a broader definition of
burglary] was actually required to find all the elements of ”
the generic offense. Ibid. We held the exception applica-
ble “if the indictment or information and jury instructions
show that the defendant was charged only with a burglary
of a building, and that the jury necessarily had to find an
entry of a building to convict . . . .” Ibid. Only then might
a conviction under a “nongeneric” burglary statute qualify
as an ACCA predicate.
In this case, the offenses charged in state complaints were
broader than generic burglary, and there were of course no
jury instructions that might have narrowed the charges to
the generic limit. The Government nonetheless urged the
District Court to examine reports submitted by the police
with applications for issuance of the complaints, as a way of
telling whether Shepard’s guilty pleas went to generic bur-
glaries notwithstanding the broader descriptions of the of-
fenses in the complaints, descriptions that tracked the more
expansive definition in Massachusetts law. The court con-
cluded that Taylor forbade this, and that investigation
within the Taylor limits failed to show that Shepard had
2 Although Taylor involved prior burglaries, as this case does, our hold-
ing in Taylor covered other predicate ACCA offenses. 495 U. S., at 600.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
18 SHEPARD v. UNITED STATES
Opinion of the Court
three generic burglary convictions. The court accordingly
refused to consider the 15-year mandatory minimum, though
it did sentence Shepard somewhat above the standard level
under the Sentencing Guidelines, on the ground that his
criminal history category under the Guidelines did not do
justice to his ample criminal record.
On appeal the First Circuit, following its earlier decision
in United States v. Harris, 964 F. 2d 1234 (1992), vacated
the sentence and ruled that complaint applications and police
reports may count as “sufficiently reliable evidence for deter-
mining whether a defendant’s plea of guilty constitutes an
admission to a generically violent crime,” 231 F. 3d 56, 67
(2000). As to each of Shepard’s prior convictions, the court
remanded the case for the District Court to determine
whether there was “sufficiently reliable evidence that the
government and the defendant shared the belief that the de-
fendant was pleading guilty to a generically violent crime.”
Id., at 70.
The District Court again declined to impose the 15-year
mandatory minimum, even though the Government supple-
mented its earlier submission with police reports or com-
plaint applications on two additional burglary convictions.
The District Judge noted that the only account of what oc-
curred at each of the prior plea hearings came from an affi-
davit submitted by Shepard, who stated “that none of the
details in th[e police] reports w[as] ever mentioned at his
pleas,” that “the reports themselves were never read by the
judge to him during the plea colloquy,” and that at no time
“was he ever asked if the information contained in the . . .
[r]eports w[as] true.” 181 F. Supp. 2d 14, 19 (Mass. 2002).
Shepard further swore that “with respect to each report:
[he] did not admit the truth of the information contained in
the . . . [r]eport as part of [his] plea and [had] never admitted
in court the facts alleged in the report . . . .” Id., at 19–20
(internal quotation marks omitted). Based on this, the Dis-
trict Court found that the Government had failed to carry

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
19 Cite as: 544 U. S. 13 (2005)
Opinion of the Court
its burden to demonstrate that Shepard had pleaded to three
generic burglaries.
The Court of Appeals again vacated the sentence. After
observing that Shepard had never “seriously disputed” that
he did in fact break into the buildings described in the police
reports or complaint applications, 348 F. 3d 308, 311 (CA1
2003), the court rejected the District Court’s conclusion
that the Government had not shown the requisite predicate
offenses for the 15-year minimum sentence, id., at 314.
The case was remanded with instructions to impose that
sentence.
We granted certiorari, 542 U. S. 918 (2004), to address di-
vergent decisions in the Courts of Appeals applying Taylor
when prior convictions stem from guilty pleas, not jury ver-
dicts. We now reverse.
II
We agree with the First Circuit (and every other Court of
Appeals to speak on the matter) that guilty pleas may estab-
lish ACCA predicate offenses and that Taylor’s reasoning
controls the identification of generic convictions following
pleas, as well as convictions on verdicts, in States with non-
generic offenses. See 348 F. 3d, at 312, n. 4 (citing cases).
Shepard wisely refrains from challenging this position, for
the ACCA nowhere provides that convictions in tried and
pleaded cases are to be regarded differently. It drops no
hint that Congress contemplated different standards for
establishing the fact of prior convictions, turning on the
basis of trial or plea. Nothing to that effect is suggested,
after all, by the language imposing the categorical approach,
which refers to predicate offenses in terms not of prior
conduct but of prior “convictions” and the “element[s]”
of crimes. Taylor, supra, at 600–601 (citing 18 U. S. C.
§ 924(e)). Nor does the ACCA’s legislative history reveal a
lesser congressional preference for a categorical, as distinct
from fact-specific, approach to recognizing ACCA predicates
in cases resolved by plea. Taylor, supra, at 601. And

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
20 SHEPARD v. UNITED STATES
Opinion of the Court
certainly, “the practical difficulties and potential unfairness
of a factual approach are daunting,” ibid., no less in pleaded
than in litigated cases. Finally, nothing in Taylor’s ration-
ale limits it to prior jury convictions; our discussion of the
practical difficulties inherent in looking into underlying cir-
cumstances spoke specifically of “cases where the defendant
pleaded guilty, [in which] there often is no record of the un-
derlying facts.” Ibid. Our job, then, is to find the right
analogs for applying the Taylor rule to pleaded cases.
The Taylor Court drew a pragmatic conclusion about the
best way to identify generic convictions in jury cases, while
respecting Congress’s adoption of a categorical criterion that
avoids subsequent evidentiary enquiries into the factual
basis for the earlier conviction. The Court held that generic
burglary could be identified only by referring to charging
documents filed in the court of conviction, or to recorded ju-
dicial acts of that court limiting convictions to the generic
category, as in giving instruction to the jury.
The Court did not, however, purport to limit adequate ju-
dicial record evidence strictly to charges and instructions,
id., at 602 (discussing the use of these documents as an “ex-
ample”), since a conviction might follow trial to a judge alone
or a plea of guilty. In cases tried without a jury, the closest
analogs to jury instructions would be a bench-trial judge’s
formal rulings of law and findings of fact, and in pleaded
cases they would be the statement of factual basis for the
charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript
of plea colloquy or by written plea agreement presented to
the court, or by a record of comparable findings of fact
adopted by the defendant upon entering the plea.3 With
3 Several Courts of Appeals have taken a similar view, approving the
use of some or all of these documents. United States v. Bonat, 106 F. 3d
1472, 1476–1477 (CA9 1997); United States v. Maness, 23 F. 3d 1006, 1009–
1010 (CA6 1994); United States v. Smith, 10 F. 3d 724, 733–734 (CA10 1993)
(per curiam) (construing United States Sentencing Commission, Guide-
lines Manual § 4B1.2 (Nov. 1990)).

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
21 Cite as: 544 U. S. 13 (2005)
Opinion of the Court
such material in a pleaded case, a later court could generally
tell whether the plea had “necessarily” rested on the fact
identifying the burglary as generic, Taylor, supra, at 602,
just as the details of instructions could support that conclu-
sion in the jury case, or the details of a generically limited
charging document would do in any sort of case.
The Government argues for a wider evidentiary cast, how-
ever, going beyond conclusive records made or used in adju-
dicating guilt and looking to documents submitted to lower
courts even prior to charges. It argues for considering a
police report submitted to a local court as grounds for issuing
a complaint under a nongeneric statute; if that report alleges
facts that would satisfy the elements of a generic statute,
the report should suffice to show that a later plea and convic-
tion were for a predicate offense under the ACCA. There
would be no reason for concern about unavailable witnesses
or stale memories, the Government points out, and such lim-
ited enquiry would be consistent with Taylor because “[t]he
underlying purpose [would be] the same as in examining the
charging paper and jury instructions (which the Court en-
dorsed in Taylor): to determine the nature of the offense of
which petitioner was convicted, rather than to determine
what he actually did.” Brief for United States 22–23. The
Government stresses three points.
First, it says that the more accommodating view of evi-
dence competent to prove that the plea was to a generic of-
fense will yield reliable conclusions. Although the records
of Shepard’s pleas with their notations that he “[a]dmit[ted]
suff[icient] facts” do not necessarily show that he admitted
entering buildings or structures, as would be true under a
generic burglary statute or charge, the police reports suffice
to show that the record of admitting sufficient facts “can only
have plausibly rested on petitioner’s entry of a building.”
Id., at 25.
Second, the Government pulls a little closer to Taylor’s
demand for certainty when identifying a generic offense by

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
22 SHEPARD v. UNITED STATES
Opinion of the Court
emphasizing that the records of the prior convictions used
in this case are in each instance free from any inconsistent,
competing evidence on the pivotal issue of fact separating
generic from nongeneric burglary. “[T]here is nothing in
the record to indicate that petitioner had pleaded guilty
based on entering a ship or vehicle on any of the occasions
at issue.” Brief for United States 16.
Finally, the Government supports its call for a more inclu-
sive standard of competent evidence by invoking the virtue
of a nationwide application of a federal statute unaffected by
idiosyncrasies of recordkeeping in any particular State. A
bar on review of documents like police reports and complaint
applications would often make the ACCA sentencing en-
hancement “hinge on the happenstance of state court
record-keeping practices and the vagaries of state prosecu-
tors’ charging practices.” Brief in Opposition 13 (internal
quotation marks omitted).
On each point, however, the Government’s position raises
an uncomfortable implication: every one of its arguments
could have been pressed in favor of an enquiry beyond what
Taylor allows when a jury conviction follows nongeneric in-
structions, and each is therefore as much a menace to Taylor
as a justification for an expansive approach to showing
whether a guilty plea admitted the generic crime. If the
transcript of a jury trial showed testimony about a building
break, one could say that the jury’s verdict rested on a find-
ing to that effect. If the trial record showed no evidence of
felonious entrance to anything but a building or structure,
the odds that the offense actually committed was generic
burglary would be a turf accountant’s dream. And, again, if
it were significant that vagaries of abbreviated plea records
could limit the application of the ACCA, the significance
would be no less when the disputed, predicate conviction fol-
lowed a jury trial and the stenographic notes of the charge
had been thrown away.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
23 Cite as: 544 U. S. 13 (2005)
Opinion of the Court
The Government’s position thus amounts to a call to ease
away from the Taylor conclusion, that respect for congres-
sional intent and avoidance of collateral trials require that
evidence of generic conviction be confined to records of the
convicting court approaching the certainty of the record of
conviction in a generic crime State. But that limitation was
the heart of the decision, and we cannot have Taylor and the
Government’s position both.
There is not, however, any sufficient justification for upset-
ting precedent here. We are, after all, dealing with an issue
of statutory interpretation, see, e. g., Taylor, 495 U. S., at
602, and the claim to adhere to case law is generally powerful
once a decision has settled statutory meaning, see Patterson
v. McLean Credit Union, 491 U. S. 164, 172–173 (1989) (“Con-
siderations of stare decisis have special force in the area of
statutory interpretation, for here, unlike in the context of
constitutional interpretation, the legislative power is impli-
cated, and Congress remains free to alter what we have
done”). In this instance, time has enhanced even the usual
precedential force, nearly 15 years having passed since Tay-
lor came down, without any action by Congress to modify
the statute as subject to our understanding that it allowed
only a restricted look beyond the record of conviction under
a nongeneric statute.4
4 Like the Government, the dissent would allow district courts to exam-
ine a wider range of documents than we approve today, and its proposal
is no more consistent with Taylor than the Government’s. Taylor is clear
that any enquiry beyond statute and charging document must be narrowly
restricted to implement the object of the statute and avoid evidentiary
disputes. In the case before it, the Court drew the line after allowing
courts to review documents showing “that the jury necessarily had to find
an entry of a building to convict.” 495 U. S., at 602; see also ibid. (permit-
ting a sentencing court to look beyond the state statute “in a narrow range
of cases where a jury was actually required to find all the elements of
generic burglary”). As we say in the text, there are certainly jury trials
with record documents like those at issue here, never introduced at trial

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
24 SHEPARD v. UNITED STATES
Opinion of Souter, J.
III
Developments in the law since Taylor, and since the First
Circuit’s decision in Harris, provide a further reason to ad-
here to the demanding requirement that any sentence under
the ACCA rest on a showing that a prior conviction “neces-
sarily” involved (and a prior plea necessarily admitted) facts
equating to generic burglary. The Taylor Court, indeed,
was prescient in its discussion of problems that would follow
from allowing a broader evidentiary enquiry. “If the sen-
tencing court were to conclude, from its own review of the
record, that the defendant [who was convicted under a non-
generic burglary statute] actually committed a generic bur-
glary, could the defendant challenge this conclusion as
abridging his right to a jury trial?” 495 U. S., at 601. The
Court thus anticipated the very rule later imposed for the
sake of preserving the Sixth Amendment right, that any fact
other than a prior conviction sufficient to raise the limit of
the possible federal sentence must be found by a jury, in the
absence of any waiver of rights by the defendant. Jones v.
United States, 526 U. S. 227, 243, n. 6 (1999); see also Ap-
prendi v. New Jersey, 530 U. S. 466, 490 (2000).
The Government dismisses the relevance of the Jones-
Apprendi implementation of the jury right here by describ-
but “uncontradicted,” post, at 31 (opinion of O’Connor, J.), and “internally
consistent,” ibid., with the evidence that came in. The dissent would pre-
sumably permit examination of such documents, but Taylor assuredly
does not.
The only way to reconcile the dissent’s approach with Taylor is to say
that in Taylor the prior convictions followed jury verdicts while in this
case each prior conviction grew out of a guilty plea. See post, at 36 (“Tay-
lor itself set no rule for guilty pleas”). But Taylor has no suggestion that
its reasoning would not apply in plea cases, and its discussion of the practi-
cal difficulties specifically referred to prior guilty pleas. 495 U. S., at 601.
Moreover, as we have noted, see supra, at 19, and as the dissent nowhere
disputes, the ACCA provides no support for such a distinction. We de-
cline to create a distinction that Congress evidently had no desire to draw,
that Taylor did not envision, and that we would be hard pressed to explain.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
25 Cite as: 544 U. S. 13 (2005)
Opinion of Souter, J.
ing the determination necessary to apply the ACCA as “in-
volv[ing] only an assessment of what the state court itself
already has been ‘required to find’ in order to find the de-
fendant guilty.” Brief for United States 38 (quoting Taylor,
supra, at 602). But it is not that simple. The problem is
that “what the state court . . . has been ‘required to find’ ” is
debatable. In a nongeneric State, the fact necessary to
show a generic crime is not established by the record of con-
viction as it would be in a generic State when a judicial find-
ing of a disputed prior conviction is made on the authority
of Almendarez-Torres v. United States, 523 U. S. 224 (1998).
The state statute requires no finding of generic burglary, and
without a charging document that narrows the charge to ge-
neric limits, the only certainty of a generic finding lies in
jury instructions, or bench-trial findings and rulings, or (in a
pleaded case) in the defendant’s own admissions or accepted
findings of fact confirming the factual basis for a valid plea.
In this particular pleaded case, the record is silent on the
generic element, there being no plea agreement or recorded
colloquy in which Shepard admitted the generic fact.
Instead, the sentencing judge considering the ACCA en-
hancement would (on the Government’s view) make a dis-
puted finding of fact about what the defendant and state
judge must have understood as the factual basis of the prior
plea, and the dispute raises the concern underlying Jones
and Apprendi: the Sixth and Fourteenth Amendments guar-
antee a jury standing between a defendant and the power of
the State, and they guarantee a jury’s finding of any disputed
fact essential to increase the ceiling of a potential sentence.
While the disputed fact here can be described as a fact about
a prior conviction, it is too far removed from the conclu-
sive significance of a prior judicial record, and too much like
the findings subject to Jones and Apprendi, to say that
Almendarez-Torres clearly authorizes a judge to resolve the
dispute. The rule of reading statutes to avoid serious risks
of unconstitutionality, see Jones, supra, at 239, therefore

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
26 SHEPARD v. UNITED STATES
Opinion of Thomas, J.
counsels us to limit the scope of judicial factfinding on the
disputed generic character of a prior plea, just as Taylor
constrained judicial findings about the generic implication of
a jury’s verdict.5
IV
We hold that enquiry under the ACCA to determine
whether a plea of guilty to burglary defined by a nongeneric
statute necessarily admitted elements of the generic offense
is limited to the terms of the charging document, the terms
of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial
record of this information.
The judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings.
It is so ordered.
The Chief Justice took no part in the decision of this
case.
Justice Thomas, concurring in part and concurring in
the judgment.
Apprendi v. New Jersey, 530 U. S. 466 (2000), and its prog-
eny prohibit judges from “mak[ing] a finding that raises [a
defendant’s] sentence beyond the sentence that could have
5 The dissent charges that our decision may portend the extension of
Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions,
a move which (if it should occur) “surely will do no favors for future de-
fendants in Shepard’s shoes.” Post, at 38. According to the dissent, the
Government, bearing the burden of proving the defendant’s prior bur-
glaries to the jury, would then have the right to introduce evidence of
those burglaries at trial, and so threaten severe prejudice to the defend-
ant. It is up to the future to show whether the dissent is good prophesy,
but the dissent’s apprehensiveness can be resolved right now, for if the
dissent turns out to be right that Apprendi will reach further, any defend-
ant who feels that the risk of prejudice is too high can waive the right to
have a jury decide questions about his prior convictions.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
27 Cite as: 544 U. S. 13 (2005)
Opinion of Thomas, J.
lawfully been imposed by reference to facts found by the jury
or admitted by the defendant.” United States v. Booker, 543
U. S. 220, 317–318 (2005) (Thomas, J., dissenting in part).
Yet that is what the Armed Career Criminal Act, 18 U. S. C.
§ 924(e) (2000 ed. and Supp. II), permits in this case. Peti-
tioner Reginald Shepard pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U. S. C. § 922(g)(1),
which exposed him to a maximum sentence of 10 years under
§ 924(a)(2) and a Federal Sentencing Guidelines range of 30-
to-37 months. However, § 924(e)(1) (2000 ed., Supp. II) man-
dated a minimum 15-year sentence if Shepard had three pre-
vious convictions for “a violent felony or a serious drug
offense.” Shepard has never conceded that his prior state-
court convictions qualify as violent felonies or serious drug
offenses under § 924(e). Even so, the Court of Appeals re-
solved this contested factual matter by ordering the District
Court to impose the enhancement on remand.
The constitutional infirmity of § 924(e)(1) as applied to
Shepard makes today’s decision an unnecessary exercise.
Nevertheless, the plurality today refines the rule of Taylor
v. United States, 495 U. S. 575 (1990), and further instructs
district courts on the evidence they may consider in deter-
mining whether prior state convictions are § 924(e) predicate
offenses. Taylor and today’s decision thus explain to lower
courts how to conduct factfinding that is, according to the
logic of this Court’s intervening precedents, unconstitutional
in this very case. The need for further refinement of Tay-
lor endures because this Court has not yet reconsidered
Almendarez-Torres v. United States, 523 U. S. 224 (1998),
which draws an exception to the Apprendi line of cases for
judicial factfinding that concerns a defendant’s prior convic-
tions. See Apprendi, supra, at 487–490.
Almendarez-Torres, like Taylor, has been eroded by this
Court’s subsequent Sixth Amendment jurisprudence, and a
majority of the Court now recognizes that Almendarez-
Torres was wrongly decided. See 523 U. S., at 248–249

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
28 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
(Scalia, J., joined by Stevens, Souter, and Ginsburg, JJ.,
dissenting); Apprendi, supra, at 520–521 (Thomas, J.,
concurring). The parties do not request it here, but in an
appropriate case, this Court should consider Almendarez-
Torres’ continuing viability. Innumerable criminal defend-
ants have been unconstitutionally sentenced under the
flawed rule of Almendarez-Torres, despite the fundamental
“imperative that the Court maintain absolute fidelity to the
protections of the individual afforded by the notice, trial by
jury, and beyond-a-reasonable-doubt requirements.” Har-
ris v. United States, 536 U. S. 545, 581–582 (2002) (Thomas,
J., dissenting).
In my view, broadening the evidence judges may consider
when finding facts under Taylor—by permitting sentencing
courts to look beyond charging papers, jury instructions, and
plea agreements to an assortment of other documents such
as complaint applications and police reports—would not give
rise to constitutional doubt, as the plurality believes. See
ante, at 24–26. It would give rise to constitutional error, no
less than does the limited factfinding that Taylor’s rule per-
mits. For this reason, as well as those set forth in Parts I,
II, and IV of the Court’s opinion, the Court correctly declines
to broaden the scope of the evidence judges may consider
under Taylor. But because the factfinding procedure the
Court rejects gives rise to constitutional error, not doubt,
I cannot join Part III of the opinion.
Justice O’Connor, with whom Justice Kennedy and
Justice Breyer join, dissenting.
The Court today adopts a rule that is not compelled by
statute or by this Court’s precedent, that makes little sense
as a practical matter, and that will substantially frustrate
Congress’ scheme for punishing repeat violent offenders who
violate federal gun laws. The Court is willing to acknowl-
edge that petitioner’s prior state burglary convictions oc-
curred, and that they involved unpermitted entries with

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
29 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
intent to commit felonies. But the Court refuses to accept
one additional, commonsense inference, based on substantial
documentation and without any evidence to the contrary:
that petitioner was punished for his entries into buildings.
Petitioner, Reginald Shepard, has never actually denied
that the prior crimes at issue were burglaries of buildings.
Nor has he denied that, in pleading guilty to those crimes,
he understood himself to be accepting punishment for bur-
glarizing buildings. Instead, seeking to benefit from the un-
availability of certain old court records and from a minor
ambiguity in the prior crimes’ charging documents, peti-
tioner asks us to foreclose any resort to the clear and un-
contradicted background documents that gave rise to and
supported his earlier convictions.
The Court acquiesces in that wish and instructs the fed-
eral courts to ignore all but the narrowest evidence regard-
ing an Armed Career Criminal Act defendant’s prior guilty
pleas. I respectfully dissent.
I
The Armed Career Criminal Act (ACCA) mandates a 15-
year minimum sentence for certain federal firearms viola-
tions where the defendant has three prior convictions for
a “violent felony.” 18 U. S. C. § 924(e). In defining violent
felonies for this purpose, Congress has specified that the
term includes any crime, punishable by more than one year’s
imprisonment, that “is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). We held in Taylor v. United States, 495
U. S. 575 (1990), that the statute’s use of the term “burglary”
was meant to encompass only what we described as “ge-
neric” burglary, a crime with three elements: (1) “unlawful
or unprivileged entry into, or remaining in,” (2) “a building
or structure,” (3) “with intent to commit a crime.” Id., at
598–599.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
30 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
That left the problem of how to determine whether a de-
fendant’s past conviction qualified as a conviction for generic
burglary. The most formalistic approach would have been
to find the ACCA requirement satisfied only when the stat-
ute under which the defendant was convicted was one limited
to “generic” burglary. But Taylor wisely declined to follow
that course. The statutes which some States—like Massa-
chusetts here, or Missouri in Taylor—use to prosecute ge-
neric burglary are overbroad for ACCA purposes: They are
not limited to “generic” burglary, but also punish the nonge-
neric kind. Restricting the sentencing court’s inquiry to the
face of the statute would have frustrated the purposes of
the ACCA by allowing some violent recidivists convicted of
federal gun crimes to escape the ACCA’s heightened punish-
ment based solely on the fortuity of where they had com-
mitted their previous crimes.
Instead, Taylor adopted a more “pragmatic” approach.
Ante, at 20 (majority opinion). Every statute punishes a
certain set of criminalized actions; the problem with some
burglary statutes, for purposes of the ACCA, is that they
are overinclusive. But Taylor permitted a federal court to
“go beyond the mere fact of conviction”—and to determine,
by using other sources, whether the defendant’s prior crime
was in the subset of the statutory crime qualifying as generic
burglary. For example, where a defendant’s prior convic-
tion occurred by jury trial, Taylor instructed the federal
court to review “the indictment or information and jury in-
structions” from the earlier conviction, to see whether they
had “required the jury to find all the elements of generic
burglary in order to convict.” 495 U. S., at 602.
As the Court recognizes, however, Taylor’s use of that one
example did not purport to be exhaustive. See ante, at 20–
21. See also United States v. Harris, 964 F. 2d 1234, 1236
(CA1 1992) (Breyer, C. J.). Rather, Taylor left room for
courts to determine which other reliable and simple sources
might aid in determining whether a defendant had in fact

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
31 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
been convicted of generic burglary. The Court identifies
several such sources that a sentencing judge may consult
under the ACCA: the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant as-
sented.” Ante, at 16. I would expand that list to include
any uncontradicted, internally consistent parts of the record
from the earlier conviction. That would include the two
sources the First Circuit relied upon in this case.
Shepard’s four prior convictions all occurred by guilty
pleas to charges under Massachusetts’ two burglary stat-
utes—statutes that punish “[w]hoever . . . breaks and enters
a building, ship, vessel or vehicle, with intent to commit a
felony.” Mass. Gen. Laws Ann., ch. 266, § 16 (West 2000)
(emphasis added); see also § 18. The criminal complaints
used as charging documents for the convictions at issue did
not specify that Shepard’s offenses had involved a building,
but instead closely copied the more inclusive language of the
appropriate statute. If these complaints were the only evi-
dence of the factual basis of Shepard’s guilty pleas, then I
would agree with the majority that there was no way to
know whether those convictions were for burglarizing a
building. But the Government did have additional evidence.
For each of the convictions, the Government had both the
applications by which the police had secured the criminal
complaints and the police reports attached to those applica-
tions. Those documents decisively show that Shepard’s ille-
gal act in each prior conviction was the act of entering a
building. Moreover, they make inescapable the conclusion
that, at each guilty plea, Shepard understood himself to be
admitting the crime of breaking into a building.
Consider, for instance, the first burglary conviction at
issue. The complaint for that conviction alleged that, on
May 6, 1989, Shepard “did break and enter in the night time
the building, ship, vessel or vehicle, the property of Jerri
Cothran, with intent to commit a felony therein” in violation

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
32 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
of § 16. 3 App. 5. The place of the offense was alleged
as “30 Harlem St.,” and the complaint contained a cross-
reference to “CC#91–394783.”
The majority would have us stop there. Since both the
statute and the charging document name burglary of a
“building, ship, vessel or vehicle,” the majority concludes
that there is no way to tell whether Massachusetts punished
Shepard for transgressing its laws by burglarizing a build-
ing, or for doing so by burglarizing a vehicle, ship, or vessel.
(Although the majority would also allow a look at Shepard’s
written plea agreement or a transcript of the plea proceed-
ings, those items are no longer available in Shepard’s case,
since Massachusetts has apparently seen little need to pre-
serve the miscellany of long-past convictions.)
I would look as well to additional portions of the record
from that plea—the complaint application and police report.
The complaint application lists the same statute, describes
(in abbreviated form) the same offense, names the same vic-
tim and address, and contains the same reference number
(though differently hyphenated) as the complaint itself. In
addition, the application specifies as relevant “PROPERTY”
(meaning “Goods stolen, what destroyed, etc.”) a “Cellar
Door.” Id., at 6. The police report (which also names the
same victim, date, and place of offense, and contains the same
reference number as the other two documents) gives sub-
stantially more detail about why Massachusetts began crimi-
nal proceedings against Shepard:
“[R]esponded to [radio call] to 30 Harlem St. for B-E in
progress. On arrival observed cellar door in rear had
been broken down. Spoke to victim who stated that
approx 3:00 a.m. she heard noises downstairs. She then
observed suspect . . . in her pantry.” Id., at 7.
Three points need to be made about the relationship be-
tween the complaint (whose use the majority finds com-
pletely unobjectionable) and the application and police report

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
33 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
(which I would also consider). First, all of the documents
concern the same crime. Second, the three documents are
entirely consistent—nothing in any of them casts doubt on
the veracity of the others. Finally, and most importantly,
the common understanding behind all three documents was
that, whatever the range of conduct punishable by the state
statute, this defendant was being prosecuted for burglary of
a building. See 348 F. 3d 308, 314 (CA1 2003) (“[T]here is
a compelling inference that the plea was to the complaint
and that the complaint embodied the events described in the
application or police report in the case file”).
There certainly is no evidence in the record contradicting
that understanding. Notably, throughout these proceed-
ings, Shepard has never denied that the four guilty pleas at
issue involved breaking into buildings. Nor has he denied
that his contemporaneous understanding of each plea was
that, as a result of his admission, he would be punished for
having broken into a building. During his federal sentenc-
ing hearings, Shepard did submit an affidavit about his prior
convictions. But that affidavit carefully dances around the
key issues of what Shepard actually did to run afoul of the
law and what he thought was the substance of his guilty
plea. Rather, the affidavit focuses on what the judge said
to Shepard at the hearing and what Shepard said in re-
sponse. Even in that regard, the affidavit is strangely am-
biguous. In discussing the first conviction, for instance, the
affidavit states that “the judge [who took the plea] did not
read” the police report to Shepard, “and did not ask me
whether or not the information contained in the . . . report
was true.” 1 App. 100. See also ibid. (“I did not admit the
truth of the information contained in the . . . report as part
of my plea and I have never admitted in court that the facts
alleged in the reports are true”). The affidavit’s statements
about the other three prior convictions are similar.
Those statements could be taken as Shepard’s denial that
he was ever asked about (or ever admitted to) any of the

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
34 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
specific facts of his crime that happen to be mentioned in the
police reports—facts like the date and place of the offense,
whether he entered through a cellar door and proceeded to
the pantry, and so on. But to believe that, we would have
to presume that all four Massachusetts courts violated their
duty under state law to assure themselves of the factual
basis for Shepard’s plea. In Massachusetts, “[a] defendant’s
choice to plead guilty will not alone support conviction; the
defendant’s guilt in fact must be established.” Common-
wealth v. DelVerde, 398 Mass. 288, 296, 496 N. E. 2d 1357,
1362 (1986). As a result, even if “the defendant admits to
the crime in open court, . . . a court may not convict unless
there are sufficient facts on the record to establish each ele-
ment of the offense.” Id., at 297, 496 N. E. 2d, at 1363. See
also Commonwealth v. Colon, 439 Mass. 519, 529, n. 13, 789
N. E. 2d 566, 573, n. 13 (2003) (guilty plea requires admission
to the facts); 2 E. Blumenson, S. Fisher, & D. Kanstroom,
Massachusetts Criminal Practice § 37.7B, p. 288 (1998) (“Usu-
ally this is accomplished by the recitation of either the grand
jury minutes or police reports, but defendant’s admissions
during the plea, or trial evidence, can also support the
factual basis” (footnote omitted)). Cf. Commonwealth v.
Forde, 392 Mass. 453, 458, 466 N. E. 2d 510, 513 (1984) (con-
viction cannot be based on uncorroborated confession; rather,
there must be some evidence that the crime was “real and
not imaginary”). It is thus unlikely that Shepard really in-
tended his affidavit as a statement that none of the various
facts found in the police reports were ever admitted by him
or discussed in his presence during his guilty pleas.
More likely, Shepard’s attorney carefully phrased the affi-
davit so that it would admit of a different meaning: that the
plea courts never asked, and Shepard never answered, the
precise question: “Is what the police report says true?” But
I fail to see how that is relevant, so long as Shepard under-
stood that, in pleading guilty, he was agreeing to be punished

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
35 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
for the building break-in that was the subject of the entire
proceeding.
There may be some scenarios in which—as the result of
charge bargaining, for instance, or due to unexpected twists
in an investigation—a defendant’s guilty plea is premised on
substantially different facts than those that were the basis
for the original police investigation. In such a case, a de-
fendant might well be confused about the practical meaning
of his admission of guilt. Cf. Taylor, 495 U. S., at 601–602
(“[I]f a guilty plea to a lesser, nonburglary offense was the
result of a plea bargain, it would seem unfair to impose a
sentence enhancement as if the defendant had pleaded guilty
to burglary”). But there is no claim of such circumstances
here: All signs are that everyone involved in each prior
plea—from the judge, to the prosecutor, to the defense
lawyer, to Shepard himself—understood each plea as Shep-
ard’s admission that he had broken into the building where
the police caught him. Given each police report’s never-
superseded allegation that Shepard had burglarized a build-
ing, it strains credulity beyond the breaking point to assert
that, in each case, Shepard was actually prosecuted for and
pleaded guilty to burglarizing a ship or a car. The lower
court was surely right to detect “an air of make-believe”
about Shepard’s case. 348 F. 3d, at 311.
The majority’s rule, which forces the federal sentencing
court to feign agnosticism about clearly knowable facts, can-
not be squared with the ACCA’s twin goals of incapacitat-
ing repeat violent offenders, and of doing so consistently
notwithstanding the peculiarities of state law. Cf. Taylor,
supra, at 582 (“ ‘[I]n terms of fundamental fairness, the Act
should ensure, to the extent that it is consistent with the
prerogatives of the States in defining their own offenses, that
the same type of conduct is punishable on the Federal level
in all cases’ ” (quoting S. Rep. No. 98–190, p. 20 (1983))). The
Court’s overscrupulous regard for formality leads it not only

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
36 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
to an absurd result, but also to a result that Congress plainly
hoped to avoid.
II
The Court gives two principal reasons for today’s ruling:
adherence to the Court’s decision in Taylor, and constitu-
tional concerns about the defendant’s right to a jury trial.
The first is hardly convincing. As noted above, Taylor
itself set no rule for guilty pleas, and its list of sources for a
sentencing court to consider was not intended to be exhaus-
tive. Supra, at 30–31. The First Circuit’s disposition of
this case, therefore, was not in direct conflict with Taylor.
Nor did it conflict with the spirit of Taylor. Taylor was in
part about “[f]air[ness]” to defendants. 495 U. S., at 602.
But there is nothing unfair (and a great deal that is positively
just) about recognizing and acting upon plain and uncontra-
dicted evidence that a defendant, in entering his prior plea,
knew he was being prosecuted for and was pleading guilty
to burglary of a building. Taylor also sought to avoid the
impracticality of mini-sentencing-trials featuring opposing
witnesses perusing lengthy transcripts of prior proceedings.
Id., at 601. But no such problem presents itself in this case:
The Government proposed using only the small documentary
record behind Shepard’s pleas. Those documents relate to
facts that Shepard does not dispute, and Shepard has not
indicated any desire to submit counterevidence.
The issue most central to Taylor was the need to effectu-
ate Congress’ “categorical approach” to sentencing recidivist
federal offenders—an approach which responds to the reality
of a defendant’s prior crimes, rather than the happenstance
of how those crimes “were labeled by state law.” Id., at 589.
But rather than promote this goal, the majority opinion
today injects a new element of arbitrariness into the ACCA:
A defendant’s sentence will now depend not only on the pecu-
liarities of the statutes particular States use to prosecute
generic burglary, but also on whether those States’ record
retention policies happen to preserve the musty “written

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
37 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
plea agreement[s]” and recordings of “plea colloqu[ies]” ancil-
lary to long-past convictions. Ante, at 16. In other words,
with respect to this most critical issue, the majority’s rule is
not consistent with Taylor at all.
That is why I strongly suspect that the driving force be-
hind today’s decision is not Taylor itself, but rather “[d]evel-
opments in the law since Taylor.” Ante, at 24 (plurality opin-
ion). A majority of the Court defends its rule as necessary
to avoid a result that might otherwise be unconstitutional
under Apprendi v. New Jersey, 530 U. S. 466 (2000), and re-
lated cases. Ante, at 24–26 (plurality opinion); ante, at 27–28
(Thomas, J., concurring in part and concurring in judgment).
I have criticized that line of cases from the beginning, and I
need not repeat my reasoning here. See Apprendi, supra,
at 523 (dissenting opinion); Ring v. Arizona, 536 U. S. 584,
619 (2002) (dissenting opinion); Blakely v. Washington, 542
U. S. 296, 344–345 (2004) (dissenting opinion). See also
Jones v. United States, 526 U. S. 227, 254 (1999) (Kennedy,
J., dissenting); Blakely, supra, at 340–344 (Breyer, J., dis-
senting); United States v. Booker, 543 U. S. 220, 327–331
(2005) (Breyer, J., dissenting). It is a battle I have lost.
But it is one thing for the majority to apply its Apprendi
rule within that rule’s own bounds, and quite another to ex-
tend the rule into new territory that Apprendi and succeed-
ing cases had expressly and consistently disclaimed. Yet to-
day’s decision reads Apprendi to cast a shadow possibly
implicating recidivism determinations, which until now had
been safe from such formalism. See Blakely, supra, at 301
(“ ‘Other than the fact of a prior conviction, any fact that
increases the penalty of a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved be-
yond a reasonable doubt’ ” (quoting Apprendi, supra, at 490;
emphasis added)). See also Booker, supra, at 244 (opinion
of the Court by Stevens, J.) (similar).
Even in a post-Apprendi world, I cannot understand how
today’s case raises any reasonable constitutional concern.

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
38 SHEPARD v. UNITED STATES
O’Connor, J., dissenting
To the contrary, this case presents especially good reasons
for respecting Congress’ long “tradition of treating recidi-
vism as a sentencing factor” determined by the judge,
Almendarez-Torres v. United States, 523 U. S. 224, 243
(1998), rather than as a substantive offense element deter-
mined by the jury. First, Shepard’s prior convictions were
themselves “established through procedures satisfying the
fair notice, reasonable doubt, and jury trial guarantees.”
Jones, supra, at 249. Second, as with most recidivism deter-
minations, see Almendarez-Torres, supra, at 235, the bur-
glary determination in Shepard’s case concerned an ex-
tremely narrow issue, with the relevant facts not seriously
contested. See supra, at 33–35 (discussing shortcomings of
Shepard’s affidavit). Finally, today’s hint at extending the
Apprendi rule to the issue of ACCA prior crimes surely will
do no favors for future defendants in Shepard’s shoes.
When ACCA defendants in the future go to trial rather
than plead guilty, the majority’s ruling in effect invites the
Government, in prosecuting the federal gun charge, also
“to prove to the jury” the defendant’s prior burglaries.
Almendarez-Torres, 523 U. S., at 234–235. “[T]he introduc-
tion of evidence of a defendant’s prior crimes risks significant
prejudice,” id., at 235, and that prejudice is likely to be espe-
cially strong in ACCA cases, where the relevant prior crimes
are, by definition, “violent,” 18 U. S. C. § 924(e). In short,
whatever the merits of the Apprendi doctrine, that doctrine
does not currently bear on, and should not be extended to
bear on, determinations of a defendant’s past crimes, like the
ACCA predicates at issue in Shepard’s case. The plurality’s
concern about constitutional doubt, ante, at 24–26, and Jus-
tice Thomas’ concern about constitutional error, ante, at 27–
28, are therefore misplaced.
* * *
For the reasons explained above, I would find that the
First Circuit properly established the applicability of the

544US1 Unit: $U27 [11-07-07 19:15:40] PAGES PGT: OPIN
39 Cite as: 544 U. S. 13 (2005)
O’Connor, J., dissenting
ACCA sentence by looking to the complaint applications and
police reports from the prior convictions. Because the
Court concludes otherwise, I respectfully dissent.