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to which he pleaded guilty, five to 10 years. Apprendi was decided on constitutional grounds,
specifically the defendant’s Sixth and Fourteenth Amendment rights to have a jury determine
every element of the offense charged as part of the requirement of due process.
The majority opinion in Apprendi was ambiguous on three points with potentially major
consequences for federal drug sentencing. First, Apprendi states its major ruling in two different
ways. The first version of the rule only applies in cases where the factual finding in question
“increases the penalty for a crime beyond the prescribed statutory maximum.” The second
version of the rule would apply far more broadly. Under this statement, it is “unconstitutional
for a legislature to remove from the jury the assessment of facts that increase the prescribed
range of penalties to which a criminal defendant is exposed.” This formulation of the rule,
involving “the prescribed range of penalties,” would seem to apply to mandatory minimum
sentences imposed because of a factual finding, as in McMillan, as well as to sentences beyond
“the prescribed statutory maximum.” In her dissent, Justice O’Connor pointed to this ambiguity
in arguing that the majority had effectively overruled McMillan (533).
Second, Apprendi does not classify a fact that triggers a penalty greater than the statutory
maximum as either an element of the crime or a sentencing factor, leaving open the question of
how to treat such a fact. The majority did not hold that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum is an element of an aggravated offense.”
Instead it states that “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.” The
opinion suggests that this makes that fact “the functional equivalent of an element”—but not an
element, per se. Prior to Apprendi, some facts were elements, other facts were sentencing
factors. After Apprendi, it could be argued that there is a third category, namely, sentencing
Convention