                 Cite as: 574 U. S. ____ (2014)            1

                     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 join, dissenting from denial of
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.
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).
                  Cite as: 574 U. S. ____ (2014)            3

                      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.
