`
`SCALIA, J., dissenting
`
`SUPREME COURT OF THE UNITED STATES
`JOSEPH JONES, DESMOND THURSTON, AND
`
`ANTWUAN BALL v. UNITED STATES
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE DISTRICT OF
`
`
`COLUMBIA CIRCUIT
`
` No. 13–10026. Decided October 14, 2014
`
`
`The petition for a writ of certiorari is denied.
`JUSTICE SCALIA, with whom JUSTICE THOMAS and
`
`
`JUSTICE GINSBURG
` from denial of
`
`join, dissenting
`
` certiorari.
`A jury convicted petitioners Joseph Jones, Desmond
`
`Thurston, and Antwuan Ball of distributing very small
`amounts of crack cocaine, and acquitted them of conspir-
`ing to distribute drugs. The sentencing judge, however,
`
`found that they had engaged in the charged conspiracy
`and, relying largely on that finding, imposed sentences
`that petitioners say were many times longer than those
`the Guidelines would otherwise have recommended.
`
`Petitioners present a strong case that, but for the
`judge’s finding of fact, their sentences would have been
`“substantively unreasonable” and therefore illegal. See
`Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA,
`
`
`J., joined by THOMAS, J., concurring in part and concur-
`ring in judgment). If so, their constitutional rights were
`violated. The Sixth Amendment, together with the Fifth
`Amendment’s Due Process Clause, “requires that each
`element of a crime” be either admitted by the defendant,
`or “proved to the jury beyond a reasonable doubt.” Alleyne
`v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3).
`Any fact that increases the penalty to which a defendant is
`exposed constitutes an element of a crime, Apprendi v.
`New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and
`
`“must be found by a jury, not a judge,” Cunningham v.
`
`
`
`
`
`
`
`1
`
`
`
`
`
`
`
`2
`
`
`
`JONES v. UNITED STATES
`
`SCALIA, J., dissenting
`
`California, 549 U. S. 270, 281 (2007).* We have held that
`
`a substantively unreasonable penalty is illegal and must
`be set aside. Gall v. United States, 552 U. S. 38, 51 (2007).
`
`It unavoidably follows that any fact necessary to prevent a
`sentence from being substantively unreasonable—thereby
`exposing the defendant to the longer sentence—is an
`element that must be either admitted by the defendant or
`found by the jury. It may not be found by a judge.
`
`
`For years, however, we have refrained from saying so.
`In Rita v. United States, we dismissed the possibility of
`
`Sixth Amendment violations resulting from substantive
`reasonableness review as hypothetical and not presented
`by the facts of the case. We thus left for another day the
`question whether the Sixth Amendment is violated when
`courts impose sentences that, but for a judge-found fact,
`would be reversed for substantive unreasonableness. 551
`U. S., at 353; see also id., at 366 (Stevens, J., joined in
`part by GINSBURG, J., concurring) (“Such a hypothetical
`
`case should be decided if and when it arises”). Nonethe-
`less, the Courts of Appeals have uniformly taken our
`continuing silence to suggest that the Constitution does
`permit otherwise unreasonable sentences supported by
`
`judicial factfinding, so long as they are within the statu-
`tory range. See, e.g., United States v. Benkahla, 530 F. 3d
`
`300, 312 (CA4 2008); United States v. Hernandez, 633
`F. 3d 370, 374 (CA5 2011); United States v. Ashqar, 582
`
`
`F. 3d 819, 824–825 (CA7 2009); United States v. Tread-
`well, 593 F. 3d 990, 1017–1018 (CA9 2010); United States
`
`
`v. Redcorn, 528 F. 3d 727, 745–746 (CA10 2008).
`This has gone on long enough. The present petition
`
`——————
`
`*With one exception: We held in Almendarez-Torres v. United States,
`
`
`523 U. S. 224 (1998), that the fact of a prior conviction, even when it
`increases the sentence to which the defendant is exposed, may be found
`by a judge. But see id., at 248 (SCALIA, J., dissenting); Rangel-Reyes v.
`
`
`United States, 547 U. S. 1200, 1202 (2006) (THOMAS, J., dissenting from
`denial of certiorari).
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
` Cite as: 574 U. S. ____ (2014)
`
`SCALIA, J., dissenting
`
`presents the nonhypothetical case the Court claimed to
`have been waiting for. And it is a particularly appealing
`case, because not only did no jury convict these defendants
`of the offense the sentencing judge thought them guilty of,
`but a jury acquitted them of that offense. Petitioners were
`convicted of distributing drugs, but acquitted of conspiring
`to distribute drugs. The sentencing judge found that
`petitioners had engaged in the conspiracy of which the
`jury acquitted them. The Guidelines, petitioners claim,
`recommend sentences of between 27 and 71 months for
`their distribution convictions. But in light of the conspir-
`acy finding, the court calculated much higher Guidelines
`ranges, and sentenced Jones, Thurston, and Ball to 180,
`194, and 225 months’ imprisonment.
`On petitioners’ appeal, the D. C. Circuit held that even if
`
`their sentences would have been substantively unreasona-
`ble but for judge-found facts, their Sixth Amendment
`rights were not violated. 744 F. 3d 1362, 1369 (2014). We
`should grant certiorari to put an end to the unbroken
`string of cases disregarding the Sixth Amendment—or to
`eliminate the Sixth Amendment difficulty by acknowledg-
`ing that all sentences below the statutory maximum are
`
`substantively reasonable.