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
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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
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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.
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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
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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
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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.”
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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).
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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
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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.”).
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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)).
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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).
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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
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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.