Whether any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime that must be found by a jury, not a judge

QUESTION PRESENTED Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime under and must be found by a jury, not a judge. Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000). And a substantively unreasonable sentence is illegal and must be set aside. Gall v United States, 552 U.S. 38, 51 2007). Petitioner’s sentence would be substantively unreasonable but for the district court’s finding of fact that increased the Sentencing Guidelines range. The question presented is whether the Sixth Amendment requires that any fact necessary to prevent a sentence from being substantively exposing the defendant to a longer sentence—is an element of the offense that must either be admitted by the defendant or proved to a jury beyond a reasonable doubt.