throbber
Cite as: 574 U. S. ____ (2014)
`
`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.

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket