Cunningham v. California

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

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

imprisonment: a lower term sentence of 6 years, a middle term sen

tence 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 “cir

cumstances in aggravation” as facts that justify the upper term.

Those facts, the Rules provide, must be established by a preponder

ance of the evidence. Based on a post-trial sentencing hearing, the

judge found by a preponderance of the evidence six aggravating facts,

including the particular vulnerability of the victim, and one mitigat

ing fact, that Cunningham had no record of prior criminal conduct.

Concluding that the aggravators 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 de

nied 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. 8–22.

(a) In Apprendi v. New Jersey, 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 statutory maximum

must be found by a jury, not a judge, and established beyond a rea

sonable doubt, not merely by a preponderance of the evidence. See

2 CUNNINGHAM v. CALIFORNIA

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530 U. S. 466, 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 (Re

form 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.

The maximum penalty for Blakely’s offense, under Washington’s

Reform 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 delib

erate cruelty. Applying Apprendi, this Court held the sentence un

constitutional. The State in Blakely endeavored to distinguish Ap

prendi, 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 re

jected 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 with

out 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 Amend

ment. There was “no distinction of constitutional significance be

tween the Federal Sentencing Guidelines and the Washington proce

dures 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. Fac

Cite as: 549 U. S. ____ (2007) 3

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ing the remedial question, the Court concluded that rendering the

Guidelines advisory came closest to what Congress would have in

tended had it known that the Guidelines were vulnerable to a Sixth

Amendment challenge. Under the advisory Guidelines system de

scribed in Booker, judges would no longer be confined to the sentenc

ing 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 appellate review of sentences under the

mandatory Guidelines scheme, the Court installed a “reasonableness”

standard of review. Id., at 261. Pp. 8–15.

(b) In all material respects, California’s DSL resembles the sen

tencing systems invalidated in Blakely and Booker. Following the

reasoning in those cases, the middle term prescribed under California

law, not the upper term, is the relevant statutory maximum. Be

cause aggravating facts that authorize the upper term are found by

the judge, and need only be established by a preponderance of the

evidence, the DSL violates 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

reasoned 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 par

ticular facts from elements of a crime (to be proved to a jury) to sen

tencing 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 decide what facts may support an enhanced

sentence, or to determine whether an enhanced sentence is war

ranted 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 because it reduced the penalties for

most crimes over the prior indeterminate sentencing scheme; because

the system is fair to defendants; and because the DSL requires statu

tory sentence enhancements (as distinguished from aggravators) to

be charged in the indictment and proved to a jury beyond a reason

able 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 examina

tion. Asking whether a defendant’s basic jury-trial right is preserved,

though some facts essential to punishment are reserved for determi

nation by the judge, is the very inquiry Apprendi’s bright-line rule

was designed to exclude.

4 CUNNINGHAM v. CALIFORNIA

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Ultimately, the Black court relied on an equation of California’s

DSL to the post-Booker federal system. That attempted comparison

is unavailing. The Booker Court held the Federal Guidelines incom

patible with the Sixth Amendment because they were “mandatory

and impose[d] binding requirements on all sentencing judges,” 543

U. S., at 233. To remedy the constitutional infirmity, the Court ex

cised provisions that rendered the system mandatory, leaving the

Guidelines in place as advisory only. The DSL, however, does not re

semble the advisory system the Court in Booker had in view. Under

California’s system, 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 sentence within a range of 6 to 16 years, but had

to impose 12 years, nothing less and nothing more, unless the judge

found facts allowing a sentence of 6 or 16 years. Factfinding to ele

vate 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. Be

cause the DSL allocates to judges sole authority to find facts permit

ting 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 reason

ableness standard is neither necessary 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. 15–21.

(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 sentenc

ing, by calling upon the jury to find any fact necessary to the imposi

tion of an elevated sentence. Other States have chosen to permit

judges genuinely “to exercise broad discretion . . . within a statutory

range,” which, “everyone agrees,” encounters no Sixth Amendment

Cite as: 549 U. S. ____ (2007) 5

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shoal. Id., 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. 21–22.

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. KEN

NEDY, J., filed a dissenting opinion, in which BREYER, J., joined. ALITO,

J., filed a dissenting opinion, in which KENNEDY and BREYER, JJ.,

joined.

Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–6551

_________________

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007]

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”

sentence. 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 factfinding 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 Constitu

tion’s jury-trial guarantee proscribes a sentencing scheme

that allows a judge to impose a sentence above the statu

tory maximum based on a fact, other than a prior convic

tion, 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 relevant ‘statutory maximum,’ ” this Court

has clarified, “is not the maximum sentence a judge may

2 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

impose after finding additional facts, but the maximum he

may impose without any additional findings.” Blakely, 542

U. S., at 303–304 (emphasis in original). In petitioner’s

case, the jury’s verdict alone limited the permissible sen

tence 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 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 imprison

ment 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) (here

inafter Penal Code). As further explained below, see infra,

at 4–7, the DSL obliged the trial judge to sentence Cun

ningham to the 12-year middle term unless the judge

found one or more additional facts in aggravation. Based

on a post-trial sentencing hearing, the trial judge found by

a preponderance of the evidence six aggravating circum

stances, among them, the particular vulnerability of Cun

ningham’s victim, and Cunningham’s violent conduct,

which indicated a serious danger to the community. Tr. of

Sentencing (Aug. 1, 2003), App. 22.1 In mitigation, the

judge found one fact: Cunningham had no record of prior

criminal conduct. Ibid. Concluding that the aggravators

——————

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 “relating to the crime.” Violent conduct indicating a serious

danger to society is listed in Rule 4.421(b)(1) as a fact “relating to the

defendant.”

Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

outweighed the sole mitigator, the judge sentenced Cun

ningham 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., concurring in part and dissenting in part).2 The

California Supreme Court denied review. No. S133971

(June 29, 2005) (en banc), id., at 52. In a reasoned deci

sion published nine days earlier, that court considered 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

sentencing 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 the prior regime, courts imposed open-

ended prison terms (often one year to life), and the parole

board—the Adult Authority—determined the amount of

time a felon would ultimately spend in prison. Black, 35

Cal. 4th, at 1246, 1256, 113 P. 3d, at 537, 544; In re Rob

——————

2 In addition to a Sixth Amendment challenge, Cunningham disputed

the substance of five of the six findings made by the trial judge. The

appellate 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 warranted, concluding that she properly relied on at least

two aggravating facts in imposing the upper term, and that it was not

“reasonably probable” 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).

4 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

erts, 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 elimi

nated 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, Califor

nia’s lawmakers aimed to promote uniform and propor

tionate 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

regime is implemented in the following manner. The

statute defining the offense prescribes three precise terms

of imprisonment—a lower, middle, and upper term sen

tence. E.g., Penal Code §288.5(a) (West 1999) (a person

convicted of continuous sexual abuse of a child “shall be

punished by imprisonment 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 aggravation or mitigation of the crime.”

“[C]ircumstances in aggravation 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 submitted by the

parties, the victim, or the victim’s family; “and any further

evidence introduced at the sentencing hearing.” Ibid.

The DSL directed the State’s Judicial Council4 to adopt

——————

3 Murder and certain other grave offenses still carry lengthy indeter

minate terms with the possibility of early release on parole. Brief for

Respondent 7, n. 2. See, e.g., Penal Code §190 (West Supp. 2006).

4 The Judicial Council includes the chief justice and another justice of

the California Supreme Court, three judges sitting on the Courts of

Appeal, ten judges from the Superior Courts, and other nonvoting

members. Cal. Const., Art. 6, §6(a) (West Supp. 2006). The California

Cite as: 549 U. S. ____ (2007) 5

Opinion of the Court

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 de

fined by the Judicial 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

circumstances, 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

circumstances in aggravation,” Rule 4.421(c). Beyond the

enumerated circumstances, “the judge is free to consider

any ‘additional criteria reasonably related to the decision

being made.’ ” Black, 35 Cal. 4th, at 1247, 113 P. 3d, at

538 (quoting Rule 4.408(a)). “A fact that is an element of

——————

Constitution grants the Council authority, inter alia, “to adopt rules for

court administration, practice and procedure, and perform other

functions prescribed by statute.” Art. 6, §6(d).

5 The Rules were amended on January 1, 2007. Those amendments

made technical changes, none of them material to the constitutional

question 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).

7E.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 en

gaged in violent conduct which indicates a serious danger to society.”).

6 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

the crime,” however, “shall not be used to impose the

upper term.” Rule 4.420(d). In sum, California’s DSL, and

the rules governing 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 of

fender—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” re

garding the appropriate sentence, qualifies as an aggra

vating circumstance. Post, at 11–12 (dissenting opinion).

California’s Rules, however, constantly refer to “facts.” As

just noted, the Rules define “circumstances in aggrava

tion” as “facts which justify the imposition of the upper

prison term.” Rule 4.405(d) (emphasis added).9 And

“circumstances in aggravation,” the Rules unambiguously

declare, “shall be established by a preponderance of the

evidence,” Rule 4.420(b), a clear factfinding directive 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 “cir

cumstances in aggravation” that alone authorize an upper

term sentence. The Rules also state that “[t]he enumera

tion . . . of some criteria for the making of discretionary

sentencing decisions does not prohibit the application of

——————

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)).

Cite as: 549 U. S. ____ (2007) 7

Opinion of the Court

additional criteria 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 factfinding 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 imprison

ment based upon their determination whether there are

circumstances in aggravation or mitigation of the crime, a

determination that invariably requires numerous factual

findings.” (emphasis added and internal quotation marks

omitted)).

It is unsurprising, then, that State’s counsel, at oral

argument, acknowledged that he knew of no case in which

a California 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 en

hancements relating to the defendant’s criminal history or

circumstances of the crime. See, e.g., Penal Code §667 et

seq. (West Supp. 2006); §12022 et seq. 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); Black, 35 Cal. 4th, at 1257, 113 P. 3d, at 545.

A fact underlying an enhancement cannot do double duty;

it cannot be used to impose an upper term sentence and,

on top of that, an enhanced term. Penal Code §1170(b).

8 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

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 preponderance 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 factfinding operating to in

crease a defendant’s otherwise maximum 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 decision, some 15

months later, in Apprendi v. New Jersey, 530 U. S. 466

(2000).

Charles Apprendi was convicted of possession of a fire

arm 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” stat

ute 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 intimi

date 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 Ap

prendi’s case so found, and therefore sentenced the defen

dant to 12 years’ imprisonment. This Court held that the

Sixth Amendment proscribed the enhanced sentence. 530

Cite as: 549 U. S. ____ (2007) 9

Opinion of the Court

U. S., at 471. Other than a prior conviction, see Almen

darez-Torres v. United States, 523 U. S. 224, 239–247

(1998), we held in Apprendi, “any fact that increases the

penalty for a crime beyond the prescribed statutory maxi

mum 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 de

fendant’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 v. Arizona, 536 U. S. 584, 602, 609 (2002), facts

permitting a sentence in excess of the “standard range”

under Washington’s Sentencing Reform Act, Blakely v.

Washington, 542 U. S. 296, 304–305 (2004), and facts

triggering a sentence range elevation under the then-

mandatory Federal Sentencing Guidelines, United States

v. Booker, 543 U. S. 220, 243–244 (2005). Blakely and

Booker bear most closely on the question presented in this

case.

Ralph Howard Blakely was convicted of second-degree

kidnapping with a firearm, a class B felony under Wash

ington 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 important 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. (quot

ing Wash. Rev. Code Ann. §9.94A.120(2) (2000)). The

10 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

Reform Act set out a nonexhaustive list of aggravating

facts on which such a sentence elevation could be based.

It also clarified that a fact taken 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 sentence. 542 U. S., at

299–300. Blakely was sentenced to 90 months’ imprison

ment, 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

endeavored to distinguish Apprendi on the ground that

“[u]nder the Washington guidelines, an exceptional sen

tence 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 Amendment’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 maximum for class B felonies:

“Our precedents make clear . . . 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 de

fendant . . . . In other words, the relevant ‘statutory

maximum’ is not the maximum sentence a judge may

impose after finding additional facts, but the maxi

mum he may impose without any additional findings.

When a judge inflicts punishment that the jury’s ver

dict alone does not allow, the jury has not found all

the facts ‘which the law makes essential to the pun

Cite as: 549 U. S. ____ (2007) 11

Opinion of the Court

ishment,’ . . . and the judge exceeds his proper author

ity.” Id., at 303 (emphasis in original) (quoting 1 J.

Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)).

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 stan

dard range. This Court rejected that argument as well.

“Whether the judge’s authority to impose an enhanced

sentence 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 (emphasis in original). Further, we held it irrele

vant 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 sen

tence 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

Federal 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

12 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

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 im

permissible under the Sixth Amendment. In the major

ity’s judgment, there was “no distinction of constitutional

significance between the Federal Sentencing Guidelines

and the Washington procedures at issue in [Blakely].” Id.,

at 233. Both systems were “mandatory and impose[d]

binding requirements on all sentencing judges.” Ibid.10

JUSTICE STEVENS’ opinion for the Court, it bears empha

sis, next expressed a view on which there was no dis

agreement among the Justices. He acknowledged that the

Federal Guidelines would not implicate the Sixth Amend

ment 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 sen

tences 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. Indeed, everyone agrees that the

constitutional issues presented by [this case] would

have been avoided entirely if Congress had omitted

——————

10 California’s DSL, we note in this context, resembles pre-Booker

federal 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 aggravation or mitigation of the crime,” §1170(b) (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 7 (ALITO, J., dissenting)

(characterizing California’s DSL as indistinguishable from post-Booker

sentencing).

Cite as: 549 U. S. ____ (2007) 13

Opinion of the Court

from the [federal Sentencing Reform Act] the provi

sions that make the Guidelines binding on district

judges . . . . For when a trial judge exercises his dis

cretion to select a specific sentence within a defined

range, the defendant has no right to a jury determina

tion of the facts that the judge deems relevant.

“The Guidelines as written, however, are not advi

sory; they are mandatory and binding on all judges.”

Ibid. (citations omitted).

In an opinion written by JUSTICE BREYER, also garner

ing a five-Member majority, the Court faced the remedial

question, 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 Re

form Act of 1984 (SRA), the law comprehensively delineat

ing the federal sentencing system; or it could preserve the

SRA, and the mandatory Guidelines regime the SRA

established, by attaching a jury-trial requirement to any

fact increasing a defendant’s base Guidelines range; fi

nally, 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,

——————

11 Title18 U. S. C. §3553(b)(1) mandated the imposition of a Guide

lines sentence unless the district court found “an aggravating or miti

gating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guide

lines.” Section 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 war

ranted the departure, and whether the degree of departure was reason

able, §3742(e)(3).

14 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

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 opin

ion 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 U. S. C. §3553(a). 543 U. S., at 259, 264.12

Having severed §3742(e), the provision of the SRA govern

ing appellate review of sentences under the mandatory

Guidelines scheme, see supra, at 13, and n. 11, the Court

installed, as consistent with the Act and the sound ad

ministration of justice, a “reasonableness” standard of

review. 543 U. S., at 261. Without attempting an elabo

rate discussion of that standard, JUSTICE BREYER’s reme

dial opinion for the Court observed: “Section 3553(a) re

mains 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 determining whether a

sentence is reasonable.” Ibid.13 The Court emphasized

——————

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 Commis

sion. §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 sen

tence sufficient, but not greater than necessary” to “reflect the serious

ness of the offense,” “promote respect for the law,” “provide just pun

ishment for the offense,” “afford adequate deterrence to criminal

conduct,” “protect the public from further crimes of the defendant,” and

“provide the defendant 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

Cite as: 549 U. S. ____ (2007) 15

Opinion of the Court

the provisional character of the Booker remedy. Recogniz

ing 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

Constitution, 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

circumstance. See supra, at 4–5. 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 5–6. In

stead, aggravating circumstances depend on facts found

discretely and solely by the judge. In accord with Blakely,

therefore, the middle term prescribed in California’s stat

——————

granted review in two cases raising questions trained on that matter:

Claiborne v. United States, No. 06–5618 (cert. granted, Nov. 3, 2006);

and Rita v. United States, No. 06–5754 (cert. granted, Nov. 3, 2006). 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 reasonableness 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 1–10.

To maintain that position, his dissent previews, without benefit of

briefing or argument, how “reasonableness review,” post-Booker, works.

Post, at 13–15. It is neither necessary nor proper now to join issue with

JUSTICE ALITO on this matter.

16 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

utes, not the upper term, is the relevant statutory maxi

mum. 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 origi

nal)). Because circumstances in aggravation are found by

the judge, not the jury, and need only be established by a

preponderance of the evidence, not beyond a reasonable

doubt, see supra, at 5, 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 submitted 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 Su

preme Court held otherwise. In that court’s view, the DSL

survived 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 inspection to be in tension with the rule of Ap

prendi. But in “operation and effect,” the court said, the

DSL “simply authorize[s] a sentencing court to engage in

the type of factfinding that traditionally has been incident

to the judge’s selection of an appropriate sentence within a

statutorily prescribed 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 princi

ples set forth in Apprendi, Blakely, and Booker.” Ibid.

But see id., at 1270, 113 P. 3d, at 554 (Kennard, J., con

curring and dissenting) (“Nothing in the high court’s

majority opinions in Apprendi, Blakely, and Booker sug

gests that the constitutionality of a state’s sentencing

scheme turns on whether, in the words of the majority

here, it involves the type of factfinding ‘that traditionally

Cite as: 549 U. S. ____ (2007) 17

Opinion of the Court

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

maximum, rested on several considerations. First, the

court reasoned that, given the ample discretion afforded

trial judges to identify aggravating facts warranting an

upper term sentence, 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 de

cided by a judge). . . . Instead, it afforded the sentenc

ing judge 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 sen

tence. Such a system does not diminish the tradi

tional 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. Blakely, 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

dissenting) (“This aspect of our sentencing law does not

differ significantly from the Washington sentencing

scheme [the high court invalidated in Blakely.]”); supra, at

18 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

10. Furthermore, California’s system is not unfair to

defendants, for they “cannot reasonably expect a guaran

tee that the upper term will not be imposed” given judges’

broad discretion to impose an upper term sentence or to

keep their punishment at the middle term. 35 Cal. 4th, at

1258–1259, 113 P. 3d, at 545–546. The Black court addi

tionally noted that the DSL requires statutory enhance

ments (as distinguished from aggravators)—e.g., the use of

a firearm or other dangerous 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,

satisfied it that California’s sentencing system does not

implicate significantly the concerns underlying the Sixth

Amendment’s jury-trial guarantee. Our decisions, how

ever, 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, 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

California’s DSL system to the post-Booker federal system.

——————

14JUSTICE KENNEDY urges a distinction between facts concerning the

offense, where Apprendi would apply, and facts concerning the offender,

where it would not. Post, at 1–2 (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 submit

ted to a jury, and proved beyond a reasonable doubt.” (emphasis

added)).

Cite as: 549 U. S. ____ (2007) 19

Opinion of the Court

“The level of discretion available to a California judge in

selecting which of the three available terms to impose,”

the court said, “appears comparable to the level of discre

tion 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 1 (“The California sentencing

law . . . is indistinguishable in any constitutionally signifi

cant respect from the advisory Guidelines scheme that the

Court approved in [Booker].”).

The attempted comparison is unavailing. As earlier

explained, see supra, at 12–13, this Court in Booker held

the Federal Sentencing Guidelines incompatible with the

Sixth Amendment because the Guidelines were “manda

tory and imposed binding requirements on all sentencing

judges.” 543 U. S., at 233. “[M]erely advisory provisions,”

recommending but not requiring “the selection of particu

lar sentences in response to differing sets of facts,” all

Members of the Court agreed, “would not implicate the

Sixth Amendment.” Ibid. To remedy the constitutional

infirmity found in Booker, the Court’s majority excised

provisions that rendered the system mandatory, leaving

the Guidelines in place as advisory only. Id., at 245–246.

See also supra, at 13–14.

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 sen

tencing triads, three fixed sentences with no ranges be

tween 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

20 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

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 evi

dence lies.

Nevertheless, the Black court attempted to rescue the

DSL’s judicial factfinding authority by typing it simply a

reasonableness constraint, equivalent to the constraint

operative 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 reasonably deems relevant, the [DSL’s] require

ment that an upper term sentence be imposed only if an

aggravating factor exists is comparable to Booker’s re

quirement that a federal judge’s sentencing decision not be

unreasonable.”). Reasonableness, however, is not, as the

Black court would have it, the touchstone of Sixth

Amendment analysis. The reasonableness requirement

Booker anticipated for the federal system operates within

the Sixth Amendment constraints delineated in our prece

dent, 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. It is comforting,

but beside the point, that California’s system requires

judge-determined DSL sentences to be reasonable.

Booker’s remedy for the Federal Guidelines, in short, is

not a recipe for rendering our Sixth Amendment case law

toothless.15

——————

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

13–15. There would have been no majority in Booker for the revision of

Blakely essayed in his dissent. Grounded in a notion of how federal

reasonableness review operates in practice, JUSTICE ALITO “necessarily

anticipates” a question that will be aired later this Term in Rita and

Claiborne. See supra, at 14, n. 13. While we do not forecast the Court’s

Cite as: 549 U. S. ____ (2007) 21

Opinion of the Court

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 permit

ting 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]

court.” Booker, 543 U. S., at 265; cf. supra, at 15. We note

that several States have modified their systems in the

wake of Apprendi and Blakely to retain determinate sen

tencing. They have done so by calling upon the jury—

either at trial or in a separate sentencing proceeding—to

find any fact necessary to the imposition of an elevated

sentence.17 As earlier noted, California already employs

——————

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

Respondent 6, 18, 33; Brief for 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 constitutional law plainly does not qualify for this Court’s

deference.

17 States that have so altered their systems are Alaska, Arizona, Kan

sas, 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.

22 CUNNINGHAM v. CALIFORNIA

Opinion of the Court

juries in this manner to determine statutory sentencing

enhancements. See supra, at 7, 18. Other States have

chosen to permit judges genuinely “to exercise broad dis

cretion . . . within a statutory range,”18 which, “everyone

agrees,” encounters no Sixth Amendment shoal. Booker,

543 U. S., at 233. California may follow the paths taken

by its sister States or otherwise 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 re

manded for further proceedings not inconsistent with this

opinion.

It is so ordered.

——————

Lopez v. People, 113 P. 3d 713, 716 (Colo. 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 sentencing systems).

18 See Ind. Code Ann. §35–50–2–1.3(a) (West 2006); Tenn. Code Ann.

§40–35–210(c) (2005 Supp.).

Cite as: 549 U. S. ____ (2007) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–6551

_________________

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007]

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., dissenting); 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 dissenting opinion is fully sufficient

to show why, in my respectful 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

criminal justice system and the corrections process now

resulting from the Court’s wooden, unyielding insistence

on expanding the Apprendi doctrine far beyond its neces

sary boundaries. The Court could distinguish between

sentencing enhancements based on the nature of the

offense, where the Apprendi principle would apply, and

2 CUNNINGHAM v. CALIFORNIA

KENNEDY, J., dissenting

sentencing enhancements based on the nature of the

offender, where it would not. California attempted to

make this initial distinction. Compare 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 defendant”). The Court

should not foreclose its efforts.

California, as the Court notes, experimented earlier

with an indeterminate sentencing system. Ante, at 3. The

State reposed vast power and discretion in a nonjudicial

agency to set a release date for convicted felons. That

system, 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

maximum but to depart downward for unexplained rea

sons. That too, by considerable irony, would be untouched

by Apprendi. Instead, California sought to use a system

based on guided discretion. Apprendi, the Court holds

today, forecloses this option.

As dissenting opinions have suggested before, the Con

stitution ought not to be interpreted to strike down all

aspects of sentencing systems that grant judicial discre

tion with some legislative direction and control. Judges

and legislators must have the capacity to develop consis

tent standards, standards that individual juries empan

eled for only a short time cannot elaborate in any perma

nent 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]entencing guidelines are a prime

example of [the] collaborative process” between courts and

legislatures). Judges and sentencing officials have a broad

view and long-term commitment to correctional systems.

Juries do not. Judicial officers and corrections profession

als, 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.

Cite as: 549 U. S. ____ (2007) 3

KENNEDY, J., dissenting

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 serious disruption because these factors often are

part of the statutory definition of an aggravated crime in

any event and because the evidence to support these

enhancements is likely to be a central part of the prosecu

tion’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 bear

ing upon his background and contribution to the commu

nity. 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 defen

dant 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 catego

ries would not be difficult. Apprendi suffers from a similar

line-drawing problem between facts that must be consid

ered 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 reason

4 CUNNINGHAM v. CALIFORNIA

KENNEDY, J., dissenting

able efforts to develop systems of guided discretion within

the general constraint that Apprendi imposes.

Cite as: 549 U. S. ____ (2007) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–6551

_________________

JOHN CUNNINGHAM, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF

CALIFORNIA, FIRST APPELLATE DISTRICT

[January 22, 2007]

JUSTICE ALITO, with whom JUSTICE KENNEDY and

JUSTICE 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 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 system. 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

2 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

affect a defendant’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 sentencing 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. Washington, 542 U. S. 296, 305

(2004); Booker, supra, at 233; see also Harris v. United

States, 536 U. S. 545, 558 (2002).1

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 sys

tem, 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 sen

——————

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.” McConnell, The

Booker Mess, 83 Denver U. L. Rev. 665, 679 (2006). Indeed, the origi

nal 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. 112 (crime of misprision of

treason punishable by imprisonment not exceeding 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 Rep. 69 (2004).

Cite as: 549 U. S. ____ (2007) 3

ALITO, J., dissenting

tences 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 de

fined range, the defendant has no right to a jury de

termination of the facts that the judge deems rele

vant.” Booker, supra, at 233.2

In a similar vein, the remedial portion of the Court’s

opinion in Booker, written by JUSTICE BREYER, held that

the Sixth Amendment permits a system of advisory guide

lines with reasonableness review.3 JUSTICE BREYER’s

opinion 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 applica

ble Guidelines range. See Booker, 543 U. S., at 259. As

JUSTICE BREYER explained, “the existence of §3553(b)(1) is

a necessary condition of the constitutional violation. That

is to say, without this provision . . . the statute falls out

side the scope of Apprendi’s requirement.” Ibid.

Under the post-Booker federal sentencing system, “[t]he

——————

2 The four Justices who would have upheld the constitutionality of the

mandatory Federal Sentencing Guidelines system did not, of course,

disagree 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 opin

ion disagreed with JUSTICE BREYER’s severablity analysis, they did not

suggest that the resulting “advisory Guidelines” structure was uncon

stitutional. Rather, they recognized—as JUSTICE STEVENS explained in

his portion of the Court’s opinion—that “[i]f 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.” Id., at 233.

4 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

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 seriousness of the offense, promoting respect

for the law, providing just punishment, affording adequate

deterrence, protecting the public, and effectively providing

the defendant with needed educational or vocational train

ing 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 criminal statutes. Dorszynski v. United States, 418

U. S. 424, 443 (1974). Rather, Booker conditioned a dis

trict court’s sentencing discretion on appellate review for

“reasonableness” in light of the Guidelines and the

§3553(a) factors. See Booker, supra, at 261 (“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 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 advi

sory 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 sentenc

ing 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

Cite as: 549 U. S. ____ (2007) 5

ALITO, J., dissenting

nature of the offense and the offender—and it is impossi

ble to imagine how federal judges could reasonably carry

out their sentencing responsibilities without making such

factual determinations.

Under the mandatory Federal Sentencing Guidelines

regime, these factual determinations were relatively for

mal 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 system, the factual determinations were often

relatively informal and imprecise. (A trial judge might

have concluded from the presentence report that an of

fense 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 findings in selecting

the sentences that are appropriate in particular cases.4

Under the post-Booker system, if a defendant believes

——————

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. Magal

lanez, 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).

6 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

that his or her sentence was based on an erroneous factual

determination, 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 reasonableness 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 rea

sonable. Thus, under the post-Booker system, there will

be cases—and, in all likelihood, a good many cases—in

which the question whether a defendant will be required

to serve a greater or lesser sentence depends on whether a

court of appeals sustains a finding 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 imprisonment—without identifying a single fact

about the offense 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

suppose that the court, based on these findings, imposes a

sentence of 10 years of imprisonment. If the defendant

challenges 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 findings of fact.

Cite as: 549 U. S. ____ (2007) 7

ALITO, J., dissenting

Booker, then, approved a sentencing system that (1)

requires a sentencing judge to “consult” and “take into

account” legislatively defined sentencing factors and

guidelines; (2) subjects a sentencing judge’s exercise of

sentencing discretion to appellate review for “reasonable

ness”; 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 sentences “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 broad. Under the statute, a sentencing court

“shall order imposition of the middle term” of the base-

term triad, “unless 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 discretion 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 circum

stances, see Cal. Rule of Court (Criminal Cases) 4.421

(West 2006), or 15 specific mitigating circumstances, see

——————

5 These enhancements, which add additional years onto the base-triad

term selected by the court, see ante, at 7–8, must be pleaded and proved

to a jury beyond a reasonable doubt. They are not at issue in this case.

8 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

Rule 4.423, itemized in the California Rules of Court. A

California trial court can also consider the “[g]eneral

objectives of sentencing,” including protecting society,

punishing the defendant, encouraging the defendant to

lead a law-abiding life and deterring the defendant from

committing future offenses, deterring 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 articula

tion 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) (in bank), over

ruled on other grounds, People v. King, 5 Cal. 4th 59, 78,

n. 5, 851 P. 2d 27, 39, n. 5 (1993) (in banc), a California

sentencing judge is also authorized to consider any “addi

tional criteria reasonably related to the decision being

made.” Rule 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

——————

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

consider, among other things, the need to promote respect for the law,

to provide just punishment for the offense, to afford adequate deter

rence to criminal conduct and to protect the public.

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 sen

tencing 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 ex

plains that ‘an exclusive listing would be inconsistent with the statu

tory mandate to adopt “rules providing criteria for the consideration of

Cite as: 549 U. S. ____ (2007) 9

ALITO, J., dissenting

In short, under California law, the “ ‘circumstances’ the

sentencing judge may look to in aggravation or in mitiga

tion 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 discretion may even be guided by a “judge’s

subjective determination of . . . the appropriate aggregate

sentence” based on his “experiences with prior cases and

the record in the defendant’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 discretion outlined in the myriad

of statutory sentencing criteria.” Ibid.

The California scheme—like the federal “advisory

Guidelines”—does require that this discretion be exercised

reasonably. Indeed, the California Supreme Court, au

thoritatively construing the California statute,8 has ex

——————

the trial judge” [§1170.3] since this language does not purport to limit

the discretion afforded the court in each of the five enumerated sen

tencing 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 system 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.

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

jurisprudence. See ante, at 21, n. 16. But the California Supreme

Court’s exposition of California law is authoritative and binding on this

10 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

plained 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 authorizes 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 discretion in a reasonable man

ner that is consistent with the requirements and guide

lines contained in statutes and court rules”). Even when a

court imposes the “presumptive” middle 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

federal regime, recognizes that a sentencing judge must

have the ability to look at all the relevant facts—even

those outside the trial record and jury verdict—in exercis

ing his or 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,

——————

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).

Cite as: 549 U. S. ____ (2007) 11

ALITO, J., dissenting

the Court nevertheless holds that the California regime

runs afoul of the Sixth Amendment. The Court reasons as

follows: (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 Cali

fornia 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 sub

mitted 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,

adjudicative “fact” (as opposed to identifying a relevant

policy consideration) before imposing an upper term sen

tence. What a California sentencing court must find is a

“circumstanc[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 decision being made.” Rule 4.408(a).

California courts are thus empowered to take into ac

count the full panoply of factual and policy considerations

that have traditionally been considered by judges operat

ing under fully discretionary sentencing regimes—the

constitutionality of which the Court has repeatedly reaf

firmed. California law 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 Ste

vens, supra, at 1457, 253 Cal. Rptr., at 177, as long as the

12 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

final result is reasonable.9 Policy considerations like these

have always been outside the province of the jury and do

not implicate the Sixth Amendment 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 verdict or admitted by the defendant,” Blakely, supra,

at 303 (emphasis deleted), then Apprendi’s “bright-line

rule” plainly does not apply.10

But even if the California law did require that a sen

——————

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 “circumstance in

aggravation” 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 (Crimi

nal Cases) 4.421 and 4.423 (West 2006). But these lists are not exhaus

tive, and they do not impair a court’s ability to take into account more

general sentencing objectives in deciding whether to sentence a defen

dant 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 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”).

Cite as: 549 U. S. ____ (2007) 13

ALITO, J., dissenting

tencing court find some aggravating “fact” before imposing

an upper term sentence, that would not make this case

constitutionally distinguishable from Booker. As previ

ously explained, the “advisory Guidelines,” bounded by

reasonableness review, effectively (albeit less explicitly)

impose the same requirement on federal judges. Booker’s

reasonableness review necessarily supposes that some

sentences will be unreasonable in the absence of addi

tional facts justifying them. (Recall the prior hypothetical

case in which it was posited that the district court imposed

a sentence of 200 years of imprisonment for mail fraud

without citing a single aggravating fact about the offense

or the offender.) Thus, although the post-Booker Guide

lines are labeled “advisory,” reasonableness review im

poses a very real constraint on a judge’s ability to sentence

across the full statutory range without finding some ag

gravating fact.11

The Court downplays the significance of Booker reason

ableness review on the ground that Booker-style “reason

ableness . . . operates within the Sixth Amendment con

——————

11 The Court believes that in order to reach this conclusion, I must

“previe[w] . . . how ‘reasonableness review,’ post-Booker, works,” ante,

at 15, n. 13, and perhaps even prejudge this Court’s forthcoming

decisions in Rita and Claiborne, ante, at 20, 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 reasonableness 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 California’s sentencing system and the post-Booker "advisory

Guidelines." Under both, a sentencing judge operating under a reason

ableness constraint 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.

14 CUNNINGHAM v. CALIFORNIA

ALITO, J., dissenting

straints delineated in our precedent, not as a substitute

for those constraints.” Ante, at 20 (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 find

ing 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 ele

ments 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 ap

propriate in a case in which the statutory elements of mail

fraud are satisfied but in which the offense and the of

fender are as little deserving of punishment as can be

imagined. (Whether this sentence is the statutory mini

mum (probation, see 18 U. S. C. §1341 (2000 ed., Supp.

IV)) or the minimum under the advisory Guidelines (also

probation, see United States Sentencing 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 rea

sonably be imposed “solely on the basis of the facts re

flected in the jury verdict or admitted by the defendant.”

Blakely, supra, at 303 (emphasis deleted).

Cite as: 549 U. S. ____ (2007) 15

ALITO, J., dissenting

Booker’s reasonableness review necessarily anticipates

that the imposition of sentences above this level may be

conditioned 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

California’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

requirement is explicit, while the federal aggravating

factor requirement is (at least for now) implicit, should not

be constitutionally 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.