[ Stevens ]
[ Scalia ]
[ Thomas ]
[ OConnor ]
[ Breyer ]
CHARLES C. APPRENDI, Jr., PETITIONER v.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[June 26, 2000]
Justice Stevens delivered the opinion of the Court.
A New Jersey statute classifies the possession of a firearm for an unlawful purpose as a second-degree offense. N. J. Stat. Ann. §2C:394(a) (West 1995). Such an offense is punishable by imprisonment for between five years and 10 years. §2C:436(a)(2). A separate statute, described by that States Supreme Court as a hate crime law, provides for an extended term of imprisonment if the trial judge finds, by a preponderance of the evidence, that [t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. N. J. Stat. Ann. §2C:443(e) (West Supp. 2000). The extended term authorized by the hate crime law for second-degree offenses is imprisonment for between 10 and 20 years. §2C:437(a)(3).
The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.
At 2:04 a.m. on December 22, 1994, petitioner Charles C. Apprendi, Jr., fired several .22-caliber bullets into the home of an African-American family that had recently moved into a previously all-white neighborhood in Vineland, New Jersey. Apprendi was promptly arrested and, at 3:05 a.m., admitted that he was the shooter. After further questioning, at 6:04 a.m., he made a statementwhich he later retractedthat even though he did not know the occupants of the house personally, because they are black in color he does not want them in the neighborhood. 159 N. J. 7, 10, 731 A. 2d 485, 486 (1999).
A New Jersey grand jury returned a 23-count indictment charging Apprendi with four first-degree, eight second-degree, six third-degree, and five fourth-degree offenses. The charges alleged shootings on four different dates, as well as the unlawful possession of various weapons. None of the counts referred to the hate crime statute, and none alleged that Apprendi acted with a racially biased purpose.
The parties entered into a plea agreement, pursuant to which Apprendi pleaded guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful purpose, N. J. Stat. Ann. §2C:394a (West 1995), and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb, §2C:393a; the prosecutor dismissed the other 20 counts. Under state law, a second-degree offense carries a penalty range of 5 to 10 years, §2C:436(a)(2); a third-degree offense carries a penalty range of between 3 and 5 years, §2C:436(a)(3). As part of the plea agreement, however, the State reserved the right to request the court to impose a higher enhanced sentence on count 18 (which was based on the December 22 shooting) on the ground that that offense was committed with a biased purpose, as described in §2C:443(e). Apprendi, correspondingly, reserved the right to challenge the hate crime sentence enhancement on the ground that it violates the United States Constitution.
At the plea hearing, the trial judge heard sufficient evidence to establish Apprendis guilt on counts 3, 18, and 22; the judge then confirmed that Apprendi understood the maximum sentences that could be imposed on those counts. Because the plea agreement provided that the sentence on the sole third-degree offense (count 22) would run concurrently with the other sentences, the potential sentences on the two second-degree counts were critical. If the judge found no basis for the biased purpose enhancement, the maximum consecutive sentences on those counts would amount to 20 years in aggregate; if, however, the judge enhanced the sentence on count 18, the maximum on that count alone would be 20 years and the maximum for the two counts in aggregate would be 30 years, with a 15-year period of parole ineligibility.
After the trial judge accepted the three guilty pleas, the prosecutor filed a formal motion for an extended term. The trial judge thereafter held an evidentiary hearing on the issue of Apprendis purpose for the shooting on December 22. Apprendi adduced evidence from a psychologist and from seven character witnesses who testified that he did not have a reputation for racial bias. He also took the stand himself, explaining that the incident was an unintended consequence of overindulgence in alcohol, denying that he was in any way biased against African-Americans, and denying that his statement to the police had been accurately described. The judge, however, found the police officers testimony credible, and concluded that the evidence supported a finding that the crime was motivated by racial bias. App. to Pet. for Cert. 143a. Having found by a preponderance of the evidence that Apprendis actions were taken with a purpose to intimidate as provided by the statute, id., at 138a, 139a, 144a, the trial judge held that the hate crime enhancement applied. Rejecting Apprendis constitutional challenge to the statute, the judge sentenced him to a 12-year term of imprisonment on count 18, and to shorter concurrent sentences on the other two counts.
Apprendi appealed, arguing, inter alia, that the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970). Over dissent, the Appellate Division of the Superior Court of New Jersey upheld the enhanced sentence. 304 N. J. Super. 147, 698 A. 2d 1265 (1997). Relying on our decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the appeals court found that the state legislature decided to make the hate crime enhancement a sentencing factor, rather than an element of an underlying offenseand that decision was within the States established power to define the elements of its crimes. The hate crime statute did not create a presumption of guilt, the court determined, and did not appear tailored to permit the finding to be a tail which wags the dog of the substantive offense. 304 N. J. Super., at 154, 698 A. 2d, at 1269 (quoting McMillan, 477 U.S., at 88). Characterizing the required finding as one of motive, the court described it as a traditional sentencing factor, one not considered an essential element of any crime unless the legislature so provides. 304 N. J. Super., at 158, 698 A. 2d, at 1270. While recognizing that the hate crime law did expose defendants to greater and additional punishment, id., at 156, 698 A. 2d, at 1269 (quoting McMillan, 477 U.S., at 88), the court held that that one factor standing alone was not sufficient to render the statute unconstitutional, Ibid.
A divided New Jersey Supreme Court affirmed. 159 N. J. 7, 731 A. 2d 485 (1999). The court began by explaining that while due process only requires the State to prove the elements of an offense beyond a reasonable doubt, the mere fact that a state legislature has placed a criminal component within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense. Id., at 20, 731 A. 2d, at 492. Were that the case, the court continued, the Legislature could just as easily allow judges, not juries, to determine if a kidnapping victim has been released unharmed. Ibid. (citing state precedent requiring such a finding to be submitted to a jury and proved beyond a reasonable doubt). Neither could the constitutional question be settled simply by defining the hate crime statutes purpose to intimidate as motive and thereby excluding the provision from any traditional conception of an element of a crime. Even if one could characterize the language this wayand the court doubted that such a characterization was accurateproof of motive did not ordinarily increase the penal consequences to an actor. Ibid. Such [l]abels, the court concluded, would not yield an answer to Apprendis constitutional question. Ibid.
While noting that we had just last year expressed serious doubt concerning the constitutionality of allowing penalty-enhancing findings to be determined by a judge by a preponderance of the evidence, Jones v. United States, 526 U.S. 227 (1999), the court concluded that those doubts were not essential to our holding. Turning then, as the appeals court had, to McMillan, as well as to Almendarez-Torres v. United States, 523 U.S. 224 (1998), the court undertook a multifactor inquiry and then held that the hate crime provision was valid. In the majoritys view, the statute did not allow impermissible burden shifting, and did not create a separate offense calling for a separate penalty. 159 N. J., at 24, 731 A. 2d, at 494. Rather, the Legislature simply took one factor that has always been considered by sentencing courts to bear on punishment and dictated the weight to be given that factor. Ibid., 731 A. 2d, at 494495. As had the appeals court, the majority recognized that the state statute was unlike that in McMillan inasmuch as it increased the maximum penalty to which a defendant could be subject. But it was not clear that this difference alone would change the constitutional calculus, especially where, as here, there is rarely any doubt whether the defendants committed the crimes with the purpose of intimidating the victim on the basis of race or ethnicity. 159 N. J., at 2425, 731 A. 2d, at 495. Moreover, in light of concerns idiosyncratic to hate crime statutes drawn carefully to avoid punishing thought itself, the enhancement served as an appropriate balance between those concerns and the States compelling interest in vindicating the right to be free of invidious discrimination. Id., at 2526, 731 A. 2d, at 495.
The dissent rejected this conclusion, believing instead that the case turned on two critical characteristics: (1) a defendants mental state in committing the subject offense necessarily involves a finding so integral to the charged offense that it must be characterized as an element thereof; and (2) the significantly increased sentencing range triggered by the finding of a purpose to intimidate means that the purpose must be treated as a material element [that] must be found by a jury beyond a reasonable doubt. Id., at 30, 731 A. 2d, at 498. In the dissents view, the facts increasing sentences in both Almendarez-Torres (recidivism) and Jones (serious bodily injury) were quite distinct from New Jerseys required finding of purpose here; the latter finding turns directly on the conduct of the defendant during the crime and defines a level of culpability necessary to form the hate crime offense. While acknowledging analytical tensions in this Courts post-Winship jurisprudence, the dissenters concluded that there can be little doubt that the sentencing factor applied to this defendantthe purpose to intimidate a victim because of racemust fairly be regarded as an element of the crime requiring inclusion in the indictment and proof beyond a reasonable doubt. 159 N. J., at 51, 731 A. 2d, at 512.
We granted certiorari, 528 U.S. 1018 (1999), and now reverse.
It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judges finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 18 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendis actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. Brief for Respondent 4. The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. The finding is legally significant because it increasedindeed, it doubledthe maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.
Second, although the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here.1 The substantive basis for New Jerseys enhancement is thus not at issue; the adequacy of New Jerseys procedure is. The strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.
Third, we reject the suggestion by the State Supreme Court that there is rarely any doubt concerning the existence of the biased purpose that will support an enhanced sentence, 159 N. J., at 25, 731 A. 2d, at 495. In this very case, that issue was the subject of the full evidentiary hearing we described. We assume that both the purpose of the offender, and even the known identity of the victim, will sometimes be hotly disputed, and that the outcome may well depend in some cases on the standard of proof and the identity of the factfinder.
Fourth, because there is no ambiguity in New Jerseys statutory scheme, this case does not raise any question concerning the States power to manipulate the prosecutors burden of proof by, for example, relying on a presumption rather than evidence to establish an element of an offense, cf. Mullaney v. Wilbur, 421 U.S. 684 (1975); Sandstrom v. Montana, 442 U.S. 510 (1979), or by placing the affirmative defense label on at least some elements of traditional crimes, Patterson v. New York, 432 U.S. 197, 210 (1977). The prosecutor did not invoke any presumption to buttress the evidence of racial bias and did not claim that Apprendi had the burden of disproving an improper motive. The question whether Apprendi had a constitutional right to have a jury find such bias on the basis of proof beyond a reasonable doubt is starkly presented.
Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227 (1999), construing a federal statute. We there noted that under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.
In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.2 New Jersey threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race. As a matter of simple justice, it seems obvious that the procedural safeguards designed to protect Apprendi from unwarranted pains should apply equally to the two acts that New Jersey has singled out for punishment. Merely using the label sentence enhancement to describe the latter surely does not provide a principled basis for treating them differently.
At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without due process of law, Amdt. 14, and the guarantee that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, Amdt. 6.3 Taken together, these rights indisputably entitle a criminal defendant to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510 (1995); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); Winship, 397 U.S., at 364 ([T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged).
As we have, unanimously, explained, Gaudin, 515 U.S., at 510511, the historical foundation for our recognition of these principles extends down centuries into the common law. [T]o guard against a spirit of oppression and tyranny on the part of rulers, and as the great bulwark of [our] civil and political liberties, 2 J. Story, Commentaries on the Constitution of the United States 540541 (4th ed. 1873), trial by jury has been understood to require that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendants] equals and neighbours . 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone) (emphasis added). See also Duncan v. Louisiana, 391 U.S. 145, 151154 (1968).
Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. The demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula beyond a reasonable doubt seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt. C. McCormick, Evidence § 321, pp. 681682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940). Winship, 397 U.S., at 361. We went on to explain that the reliance on the reasonable doubt standard among common-law jurisdictions
Any possible distinction between an element of a felony offense and a sentencing factor was unknown to the practice of criminal indictment, trial by jury, and judgment by court4 as it existed during the years surrounding our Nations founding. As a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing all the facts and circumstances which constitute the offence, stated with such certainty and precision, that the defendant may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly and that there may be no doubt as to the judgment which should be given, if the defendant be convicted. J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis added). The defendants ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. See 4 Blackstone 369370 (after verdict, and barring a defect in the indictment, pardon or benefit of clergy, the court must pronounce that judgment, which the law hath annexed to the crime (emphasis added)).
Thus, with respect to the criminal law of felonious conduct, the English trial judge of the later eighteenth century had very little explicit discretion in sentencing. The substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense. The judge was meant simply to impose that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon process to commute it). Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 17001900, pp. 3637 (A. Schioppa ed. 1987).5 As Blackstone, among many others, has made clear,6 [t]he judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. 3 Blackstone 396 (emphasis deleted).7
This practice at common law held true when indictments were issued pursuant to statute. Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so too were the circumstances mandating a particular punishment. Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170]. Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only. Id., at 188.8
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretiontaking into consideration various factors relating both to offense and offenderin imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case. See, e.g., Williams v. New York, 337 U.S. 241, 246 (1949) ([B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law (emphasis added)). As in Williams, our periodic recognition of judges broad discretion in sentencingsince the 19th-century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range, Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. Chi. L. Rev. 715 (1942)has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature. See, e.g., United States v. Tucker, 404 U.S. 443, 447 (1972) (agreeing that [t]he Government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review (emphasis added)); Williams, 337 U.S., at 246, 247 (explaining that, in contrast to the guilt stage of trial, the judges task in sentencing is to determine, within fixed statutory or constitutional limits[,] the type and extent of punishment after the issue of guilt has been resolved).9
The historic link between verdict and judgment and the consistent limitation on judges discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.10
We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers fears that the jury right could be lost not only by gross denial, but by erosion. Jones, 526 U.S., at 247248.11 But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt. As we made clear in Winship, the reasonable doubt requirement has a vital role in our criminal procedure for cogent reasons. 397 U.S., at 363. Prosecution subjects the criminal defendant both to the possibility that he may lose his liberty upon conviction and the certainty that he would be stigmatized by the conviction. Ibid. We thus require this, among other, procedural protections in order to provid[e] concrete substance for the presumption of innocence, and to reduce the risk of imposing such deprivations erroneously. Ibid. If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should notat the moment the State is put to proof of those circumstancesbe deprived of protections that have, until that point, unquestionably attached.
Since Winship, we have made clear beyond peradventure that Winships due process and associated jury protections extend, to some degree, to determinations that [go] not to a defendants guilt or innocence, but simply to the length of his sentence. Almendarez-Torres, 523 U.S., at 251 (Scalia, J., dissenting). This was a primary lesson of Mullaney v. Wilbur, 421 U.S. 684 (1975), in which we invalidated a Maine statute that presumed that a defendant who acted with an intent to kill possessed the malice aforethought necessary to constitute the States murder offense (and therefore, was subject to that crimes associated punishment of life imprisonment). The statute placed the burden on the defendant of proving, in rebutting the statutory presumption, that he acted with a lesser degree of culpability, such as in the heat of passion, to win a reduction in the offense from murder to manslaughter (and thus a reduction of the maximum punishment of 20 years).
The State had posited in Mullaney that requiring a defendant to prove heat-of-passion intent to overcome a presumption of murderous intent did not implicate Winship protections because, upon conviction of either offense, the defendant would lose his liberty and face societal stigma just the same. Rejecting this argument, we acknowledged that criminal law is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability assessed. 421 U.S., at 697698. Because the consequences of a guilty verdict for murder and for manslaughter differed substantially, we dismissed the possibility that a State could circumvent the protections of Winship merely by redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. 421 U.S., at 698.12
It was in McMillan v. Pennsylvania, 477 U.S. 79 (1986), that this Court, for the first time, coined the term sentencing factor to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge. That case involved a challenge to the States Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. §9712 (1982). According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years imprisonment if the judge found, by a preponderance of the evidence, that the person visibly possessed a firearm in the course of committing one of the specified felonies. 477 U.S., at 8182. Articulating for the first time, and then applying, a multifactor set of criteria for determining whether the Winship protections applied to bar such a system, we concluded that the Pennsylvania statute did not run afoul of our previous admonitions against relieving the State of its burden of proving guilt, or tailoring the mere form of a criminal statute solely to avoid Winships strictures. 477 U.S., at 8688.
We did not, however, there budge from the position that (1) constitutional limits exist to States authority to define away facts necessary to constitute a criminal offense, id., at 8588, and (2) that a state scheme that keeps from the jury facts that expos[e] [defendants] to greater or additional punishment, id., at 88, may raise serious constitutional concern. As we explained:
Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing courts discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners claim that visible possession under the Pennsylvania statute is really an element of the offenses for which they are being punishedthat Pennsylvania has in effect defined a new set of upgraded felonieswould have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through use of a dangerous weapon or device), but it does not. Id., at 8788.13
Finally, as we made plain in Jones last Term, Almendarez-Torres v. United States, 523 U.S. 224 (1998), represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with having been found in the United States
after being deported,
Rejecting Almendarez-Torres objection, we concluded that sentencing him to a term higher than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated feloniesall of which had been entered pursuant to proceedings with substantial procedural safeguards of their ownno question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court. Although our conclusion in that case was based in part on our application of the criteria we had invoked in McMillan, the specific question decided concerned the sufficiency of the indictment. More important, as Jones made crystal clear, 526 U.S., at 248249, our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was the prior commission of a serious crime. 523 U.S., at 230; see also id., at 243 (explaining that recidivism
is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence); id., at 244 (emphasizing the fact that recidivism does not relate to the commission of the offense
Even though it is arguable that Almendarez-Torres was incorrectly decided,15 and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decisions validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence.
In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: [I]t 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. It
is equally clear that such facts must be established by proof beyond a reasonable doubt. 526 U.S., at 252253 (opinion of Stevens, J.); see also id., at 253 (opinion of Scalia, J.).16
The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, N. J. Stat. Ann. §2C:436(a)(1) (West 1999), based upon the judges finding, by a preponderance of the evidence, that the defendants purpose for unlawfully possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand.
New Jerseys defense of its hate crime enhancement statute has three primary components: (1) the required finding of biased purpose is not an element of a distinct hate crime offense, but rather the traditional sentencing factor of motive; (2) McMillan holds that the legislature can authorize a judge to find a traditional sentencing factor on the basis of a preponderance of the evidence; and (3) Almendarez-Torres extended McMillans holding to encompass factors that authorize a judge to impose a sentence beyond the maximum provided by the substantive statute under which a defendant is charged. None of these persuades us that the constitutional rule that emerges from our history and case law should incorporate an exception for this New Jersey statute.
New Jerseys first point is nothing more than a disagreement with the rule we apply today. Beyond this, we do not see how the argument can succeed on its own terms. The state high court evinced substantial skepticism at the suggestion that the hate crime statutes purpose to intimidate was simply an inquiry into motive. We share that skepticism. The text of the statute requires the factfinder to determine whether the defendant possessed, at the time he committed the subject act, a purpose to intimidate on account of, inter alia, race. By its very terms, this statute mandates an examination of the defendants state of minda concept known well to the criminal law as the defendants mens rea.17 It makes no difference in identifying the nature of this finding that Apprendi was also required, in order to receive the sentence he did for weapons possession, to have possessed the weapon with a purpose to use [the weapon] unlawfully against the person or property of another, §2C:394(a). A second mens rea requirement hardly defeats the reality that the enhancement statute imposes of its own force an intent requirement necessary for the imposition of sentence. On the contrary, the fact that the language and structure of the purpose to use criminal offense is identical in relevant respects to the language and structure of the purpose to intimidate provision demonstrates to us that it is precisely a particular criminal mens rea that the hate crime enhancement statute seeks to target. The defendants intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense element.18
The foregoing notwithstanding, however, the New Jersey Supreme Court correctly recognized that it does not matter whether the required finding is characterized as one of intent or of motive, because [l]abels do not afford an acceptable answer. 159 N. J., at 20, 731 A. 2d, at 492. That point applies as well to the constitutionally novel and elusive distinction between elements and sentencing factors. McMillan, 477 U.S., at 86 (noting that the sentencing factorvisible possession of a firearmmight well have been included as an element of the enumerated offenses). Despite what appears to us the clear elemental nature of the factor here, the relevant inquiry is one not of form, but of effectdoes the required finding expose the defendant to a greater punishment than that authorized by the jurys guilty verdict?19
As the New Jersey Supreme Court itself understood in rejecting the argument that the required motive finding was simply a traditional sentencing factor, proof of motive did not ordinarily increase the penal consequences to an actor. 159 N. J., at 20, 731 A. 2d, at 492. Indeed, the effect of New Jerseys sentencing enhancement here is unquestionably to turn a second-degree offense into a first- degree offense, under the States own criminal code. The law thus runs directly into our warning in Mullaney that Winship is concerned as much with the category of substantive offense as with the degree of criminal culpability assessed. 421 U.S., 698. This concern flows not only from the historical pedigree of the jury and burden rights, but also from the powerful interests those rights serve. The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendants very liberty, and for the heightened stigma associated with an of-
fense the legislature has selected as worthy of greater
The preceding discussion should make clear why the States reliance on McMillan is likewise misplaced. The differential in sentence between what Apprendi would have received without the finding of biased purpose and what he could receive with it is not, it is true, as extreme as the difference between a small fine and mandatory life imprisonment. Mullaney, 421 U.S., at 700. But it can hardly be said that the potential doubling of ones sentencefrom 10 years to 20has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance. When a judges finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as a tail which wags the dog of the substantive offense. McMillan, 477 U.S., at 88.
New Jersey would also point to the fact that the State did not, in placing the required biased purpose finding in a sentencing enhancement provision, create a separate offense calling for a separate penalty. Ibid. As for this, we agree wholeheartedly with the New Jersey Supreme Court that merely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense. 159 N. J., at 20, 731 A. 2d, at 492. Indeed, the fact that New Jersey, along with numerous other States, has also made precisely the same
conduct the subject of an independent substantive of-
fense makes it clear that the mere presence of this enhancement in a sentencing statute does not define its character.20
New Jerseys reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in that case do not apply to the New Jersey statute. Whereas recidivism does not relate to the commission of the offense itself, 523 U.S., at 230, 244, New Jerseys biased purpose inquiry goes precisely to what happened in the commission of the offense. Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.
Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647649 (1990); id., at 709714 (Stevens, J., dissenting). For reasons we have explained, the capital cases are not controlling:
Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed . The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge. Almendarez-Torres, 523 U.S., at 257, n. 2 (Scalia, J., dissenting) (emphasis deleted).
See also Jones, 526 U.S., at 250251; post, at 2526 (Thomas, J., concurring).21
* * *
The New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system. Accordingly, the judgment of the Supreme Court of New Jersey is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
1. We have previously rejected a First Amendment challenge to an enhanced sentence based on a jury finding that the defendant had intentionally selected his victim because of the victims race. Wisconsin v. Mitchell, 508 U.S. 476, 480 (1993).
2. O. Holmes, The Common Law 40 (M. Howe ed. 1963).
3. Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. He relies entirely on the fact that the due process of law that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145 (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970). That Amendment has not, however, been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998). We thus do not address the indictment question separately today.
4. [A]fter trial and conviction are past, the defendant is submitted to judgment by the court, 4 Blackstone 368the stage approximating in modern terms the imposition of sentence.
5. As we suggested in Jones v. United States, 526 U.S. 227 (1999), juries devised extralegal ways of avoiding a guilty verdict, at least of the more severe form of the offense alleged, if the punishment associated with the offense seemed to them disproportionate to the seriousness of the conduct of the particular defendant. Id., at 245 (This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as pious perjury on the jurors part. 4 Blackstone 238239).
6. As the principal dissent would chide us for this single citation to Blackstones third volume, rather than his fourth, post, at 3 (dissenting opinion), we suggest that Blackstone himself directs us to it for these purposes. See 4 Blackstone 343 (The antiquity and excellence of this [jury] trial, for the settling of civil property, has before been explained at large. See id., at 379 (Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases!) 4 id., at 343 (And it will hold much stronger in criminal cases; since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property); 4 id., at 344 (What was said of juries in general, and the trial thereby, in civil cases, will greatly shorten our present remarks, with regard to the trial of criminal suits; indictments, informations, and appeals).
7. The common law of punishment for misdemeanorsthose smaller faults, and omissions of less consequence, 4 Blackstone 5was, as we noted in Jones, 526 U.S., at 244, substantially more dependent upon judicial discretion. Subject to the limitations that the punishment not touch life or limb, that it be proportionate to the offense, and, by the 17th century, that it not be cruel or unusual, judges most commonly imposed discretionary sentences of fines or whippings upon misdemeanant offenders. J. Baker, Introduction to English Legal History 584 (3d ed. 1990). Actual sentences of imprisonment for such offenses, however, were rare at common law until the late 18th century, ibid., for the idea of prison as a punishment would have seemed an absurd expense, Baker, Criminal Courts and Procedure at Common Law 15501800, in Crime in England 15501800, p. 43 (J. Cockburn ed. 1977).
8. To the extent the principal dissent appears to take issue with our reliance on Archbold (among others) as an authoritative source on the common law of the relevant period, post, at 34, we simply note that Archbold has been cited by numerous opinions of this Court for that very purpose, his Criminal Pleading treatise being generally viewed as an essential reference book for every criminal lawyer working in the Crown Court. Biographical Dictionary of the Common Law 13 (A. Simpson ed. 1984); see also Holdsworth, The Literature of the Common Law, in 13 A History of English Law 464465 (A. Goodhart & H. Hanbury eds. 1952).
9. See also 1 J. Bishop, Criminal Law §§933934(1) (9th ed. 1923) (With us legislation ordinarily fixes the penalties for the common law offences equally with the statutory ones . Under the common-law procedure, the court determines in each case what within the limits of the law shall be the punishment, the question being one of discre-tion) (emphasis added); id., §948 ([I]f the law has given the court a discretion as to the punishment, it will look in pronouncing sentence into any evidence proper to influence a judicious magistrate to make it heavier or lighter, yet not to exceed the limits fixed for what of crime is within the allegation and the verdict. Or this sort of evidence may be placed before the jury at the trial, if it has the power to assess the punishment. But in such a case the aggravating matter must not be of a crime separate from the one charged in the indictment,a rule not applicable where a delinquent offence under an habitual criminal act is involved) (footnotes omitted). The principal dissents discussion of Williams, post, at 24-26, fails to acknowledge the significance of the Courts caveat that judges discretion is constrained by the limits fixed by law. Nothing in Williams implies that a judge may impose a more severe sentence than the maximum authorized by the facts found by the jury. Indeed, the commentators cited in the dissent recognize precisely this same limitation. See post, at 23 (quoting K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion , permitting the sentencing judge to impose any term of imprisonment and any fine up to the statutory maximum (emphasis added)); Lynch, Towards A Model Penal Code, Second (Federal?), 2 Buff. Crim. L. Rev. 297, 320 (1998) (noting that judges in discretionary sentencing took account of facts relevant to a particular offense within the spectrum of conduct covered by the statute of conviction)).
10. In support of its novel view that this Court has long recognized that not all facts affecting punishment need go to the jury, post, at 12, the principal dissent cites three cases decided within the past quarter century; and each of these is plainly distinguishable. Rather than offer any historical account of its own that would support the notion of a sentencing factor legally increasing punishment beyond the statutory maximumand Justice Thomas concurring opinion in this case makes clear that such an exercise would be futilethe dissent proceeds by mischaracterizing our account. The evidence we describe that punishment was, by law, tied to the offense (enabling the defendant to discern, barring pardon or clergy, his punishment from the face of the indictment), and the evidence that American judges have exercised sentencing discretion within a legally prescribed range (enabling the defendant to discern from the statute of indictment what maximum punishment conviction under that statute could bring), point to a single, consistent conclusion: The judges role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition elements of a separate legal offense.
11. As we stated in Jones, One contributor to the ratification debates, for example, commenting on the jury trial guarantee in Art. III, §2, echoed Blackstone in warning of the need to guard with the most jealous circumspection against the introduction of new, and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time, imperceptibly undermine this best preservative of LIBERTY. A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in The Complete Bill of Rights 477 (N. Cogan ed. 1997). 526 U.S., at 248.
12. Contrary to the principal dissents suggestion, post, at 810, Patterson v. New York, 432 U.S. 197, 198 (1977), posed no direct challenge to this aspect of Mullaney. In upholding a New York law allowing defendants to raise and prove extreme emotional distress as an affirmative defense to murder, Patterson made clear that the state law still required the State to prove every element of that States offense of murder and its accompanying punishment. No further facts are either presumed or inferred in order to constitute the crime. 432 U.S., at 205206. New York, unlike Maine, had not made malice aforethought, or any described mens rea, part of its statutory definition of second-degree murder; one could tell from the face of the statute that if one intended to cause the death of another person and did cause that death, one could be subject to sentence for a second-degree offense. Id., at 198. Responding to the argument that our view could be seen to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes, the Court made clear in the very next breath that there were obviously constitutional limits beyond which the States may not go in this regard. Id., at 210.
13. The principal dissent accuses us of today overruling McMillan. Post, at 11. We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jurys verdicta limitation identified in the McMillan opinion itself. Conscious of the likelihood that legislative decisions may have been made in reliance on McMillan, we reserve for another day the question whether stare decisis considerations preclude reconsideration of its narrower holding.
14. The principal dissents contention that our decision in Monge v. California, 524 U.S. 721 (1998), demonstrates that Almendarez-Torres was something other than a limited exception to the jury trial rule is both inaccurate and misleading. Post, at 14. Monge was another recidivism case in which the question presented and the bulk of the Courts analysis related to the scope of double jeopardy protections in sentencing. The dissent extracts from that decision the majoritys statement that the Court has rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence. 524 U.S., at 729. Far from being part of reasoning essential to the Courts holding, post, at 13, that statement was in response to a dissent by Justice Scalia on an issue that the Court itself had, a few sentences earlier, insisted was neither considered by the state courts nor discussed in petitioners brief before this Court. 524 U.S., at 728. Moreover, the sole citation supporting the Monge Courts proposition that the Court has rejected such a rule was none other than Almendarez-Torres; as we have explained, that case simply cannot bear that broad reading. Most telling of Monges distance from the issue at stake in this case is that the double jeopardy question in Monge arose because the State had failed to satisfy its own statutory burden of proving beyond a reasonable doubt that the defendant had committed a prior offense (and was therefore subject to an enhanced, recidivism-based sentence). 524 U.S., at 725 (According to California law, a number of procedural safeguards surround the assessment of prior conviction allegations: Defendants may invoke the right to a jury trial ; the prosecution must prove the allegation beyond a reasonable doubt; and the rules of evidence apply). The Court thus itself warned against a contrary double jeopardy rule that could create disincentives that would diminish these important procedural protections. Id., at 734.
15. In addition to the reasons set forth in Justice Scalias dissent, 523 U.S., at 248260, it is noteworthy that the Courts extensive discussion of the term sentencing factor virtually ignored the pedigree of the pleading requirement at issue. The rule was succinctly stated by Justice Clifford in his separate opinion in United States v. Reese, 92 U.S. 214, 232233 (1876): [T]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted. As he explained in [s]peaking of that principle, Mr. Bishop says it pervades the entire system of the adjudged law of criminal procedure, as appears by all the cases; that, wherever we move in that department of our jurisprudence, we come in contact with it; and that we can no more escape from it than from the atmosphere which surrounds us. 1 Bishop, Cr. Pro., 2d ed., sect. 81; Archbolds Crim. Plead., 15th ed., 54; 1 Stark Crim. Plead., 236; 1 Am. Cr. Law, 6th rev. ed., sect. 364; Steel v. Smith, 1 Barn. & Ald. 99.
16. The principal dissent would reject the Courts rule as a meaningless formalism, because it can conceive of hypothetical statutes that would comply with the rule and achieve the same result as the New Jersey statute. Post, at 1720. While a State could, hypothetically, undertake to revise its entire criminal code in the manner the dissent suggests, post, at 18extending all statutory maximum sentences to, for example, 50 years and giving judges guided discretion as to a few specially selected factors within that rangethis possibility seems remote. Among other reasons, structural democratic constraints exist to discourage legislatures from enacting penal statutes that expose every defendant convicted of, for example, weapons possession, to a maximum sentence exceeding that which is, in the legislatures judgment, generally proportional to the crime. This is as it should be. Our rule ensures that a State is obliged to make its choices concerning the substantive content of its criminal laws with full awareness of the consequence, unable to mask substantive policy choices of exposing all who are convicted to the maximum sentence it provides. Patterson v. New York, 432 U.S., at 228229, n. 13 (Powell, J., dissenting). So exposed, [t]he political check on potentially harsh legislative action is then more likely to operate. Ibid. In all events, if such an extensive revision of the States entire criminal code were enacted for the purpose the dissent suggests, or if New Jersey simply reversed the burden of the hate crime finding (effectively assuming a crime was performed with a purpose to intimidate and then requiring a defendant to prove that it was not, post, at 20), we would be required to question whether the revision was constitutional under this Courts prior decisions. See Patterson, 432 U.S., at 210; Mullaney v. Wilbur, 421 U.S. 684, 698702. Finally, the principal dissent ignores the distinction the Court has often recognized, see, e.g., Martin v. Ohio, 480 U.S. 228 (1987), between facts in aggravation of punishment and facts in mitigation. See post, at 1920. If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to statute, nor is the Judge imposing upon the defendant a greater stigma than that accompanying the jury verdict alone. See supra, at 1617. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.
17. Among the most common definitions of mens rea is criminal intent. Blacks Law Dictionary 1137 (rev. 4th ed. 1968). That dictionary unsurprisingly defines purpose as synonymous with intent, id., at 1400, and intent as, among other things, a state of mind, id., at 947. But we need not venture beyond New Jerseys own criminal code for a definition of purpose that makes it central to the description of a criminal offense. As the dissenting judge on the state appeals court pointed out, according to the New Jersey Criminal Code, [a] person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. N. J. Stat. Ann. §2C:22(b)(1) (West 1999). The hate crime statutes application to those who act with a purpose to intimidate because of certain status-based characteristics places it squarely within the inquiry whether it was a defendants conscious object to intimidate for that reason.
18. Whatever the effect of the State Supreme Courts comment that the law here targets motive, 159 N. J. 7, 20, 731 A. 2d 485, 492 (1999)and it is highly doubtful that one could characterize that comment as a binding interpretation of the state statute, see Wisconsin v. Mitchell, 508 U.S., at 483484 (declining to be bound by state courts characterization of state laws operative effect), even if the court had not immediately thereafter called into direct question its ability to view this finding as merely a search for motive, 159 N. J., at 21, 731 A. 2d, at 492a State cannot through mere characterization change the nature of the conduct actually targeted. It is as clear as day that this hate crime law defines a particular kind of prohibited intent, and a particular intent is more often than not the sine qua non of a violation of a criminal law. When the principal dissent at long last confronts the actual statute at issue in this case in the final few pages of its opinion, it offers in response to this interpretation only that our reading is contrary to settled precedent in Mitchell. Post, at 31. Setting aside the fact that Wisconsins hate crime statute was, in text and substance, different from New Jerseys, Mitchell did not even begin to consider whether the Wisconsin hate crime requirement was an offense element or not; it did not have tothe required finding under the Wisconsin statute was made by the jury.
19. This is not to suggest that the term sentencing factor is devoid of meaning. The term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jurys finding that the defendant is guilty of a particular offense. On the other hand, when the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. Indeed, it fits squarely within the usual definition of an element of the offense. See post, at 5 (Thomas, J., concurring) (reviewing the relevant authorities).
20. Including New Jersey, N. J. Stat. Ann. §2C:334 (West Supp. 2000) (A person commits a crime of the fourth degree if in committing an offense [of harassment] under this section, he acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity), 26 States currently have laws making certain acts of racial or other bias freestanding violations of the criminal law, see generally F. Lawrence, Punishing Hate: Bias Crimes Under American Law 178189 (1999) (listing current state hate crime laws).
21. The principal dissent, in addition, treats us to a lengthy disquisition on the benefits of determinate sentencing schemes, and the effect of todays decision on the federal Sentencing Guidelines. Post, at 2330. The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held. See, e.g., Edwards v. United States, 523 U.S. 511, 515 (1998) (opinion of Breyer, J., for a unanimous court) (noting that [o]f course, petitioners statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines. [United States Sentencing Guidelines Manual] §5G1.1.).