The Court explained that the rationale of Winship "requires an analysis that looks to the 'operation and effect of the law as applied and enforced by the state . . . .'" Wilbur, 421 U.S. at 699, 95 S. Ct. at 1890, 44 L. Ed. 2d 508.The Court applied the Winship rule again in McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), to a Pennsylvania statute that created a mandatory minimum sentence of five years imprisonment for certain enumerated offenses if the sentencing judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of the offense. Citing Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Supreme Court emphasized that "in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive . . . ." McMillan, 477 U.S. at 85, 106 S. Ct. at 2415, 91 L. Ed. 2d 67.
At the sentencing hearing, the District Court overruled his objection, found that he had brandished the gun, and sentenced him to seven years in prison. Affirming, the Fourth Circuit rejected petitioner’s statutory argument and found that McMillan v. Pennsylvania, 477 U.S. 79, foreclosed his argument that if brandishing is a sentencing factor, the statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466. In Apprendi, this Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum is, in effect, an element of the crime, which must be submitted to a jury, and proved beyond a reasonable doubt (and, in federal prosecutions, alleged in an indictment handed down by a grand jury).
Rust v. Sullivan, 500 U.S. 173, 191 (1991). The statute at issue in this case was passed when McMillan [v. Pennsylvania, 477 U.S. 79 (1986)] provided the controlling instruction, and Congress would have had no reason to believe that it was approaching the constitutional line by following that instruction. We would not further the canon’s goal of eliminating friction with our coordinate branch, moreover, if we alleviated our doubt about a constitutional premise we had supplied by adopting a strained reading of a statute that Congress had enacted in reliance on the premise.
Pp. 9—18.(c)McMillanv.Pennsylvania, 477 U.S. 79, was the first case in which the Court used “sentencing factor” to refer to a fact that was not found by the jury but could affect the sentence imposed by the judge. In finding that the scheme at issue there did not run afoul ofWinship’s strictures, this Court did not budge from the position that (1) constitutional limits exist to States’ authority to define away facts necessary to constitute a criminal offense,id.,at 85—88, and (2) a state scheme that keeps from the jury facts exposing defendants to greater or additional punishment may raise serious constitutional concerns,id.,at 88.Almendarez-Torresv.