“While the Sixth Circuit’s reading of Apprendi is now perhaps a tenable one (and might indeed be the wave of the future), it is not, at this point, our reading. It is true, as noted by the Sixth Circuit, that the Apprendi majority did quote Justice Stevens’ concurrence in Jones for the proposition that ‘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.’ See Apprendi, 530 U.S. at 490 (quoting Jones, 526 U.S. at 252 (Stevens, J., concurring)) (emphasis added). However, the majority also explicitly disclaimed any intent to overrule McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that a defendant’s due process rights were not violated when a sentencing judge decided facts that raised the defendant’s mandatory minimum sentence using the preponderance of the evidence standard. See Apprendi, 120 S.Ct. at 2361 n. 13. Unlike the Sixth Circuit, we have resolved the tension between these seemingly contradictory statements by looking to the more specific of the two: ‘the majority opinion in Apprendi specifically stated that, in cases involving a mandatory minimum sentence, the rule of Apprendi is not implicated when the actual sentence imposed is less severe than the statutory maximum.’ Williams, 238 F.3d at 877. This is the rule in this circuit, and, accordingly, the district court erred by declining to consider whether Watts was subject to a mandatory minimum seven-year term of imprisonment for brandishing his firearm during the robbery.”
Affirmed, Vacated, and remanded.
Appeals from the United States District Court for the Central District of Illinois, McDade, J., Cudahy, J.