Most circuits agree that when increasing a defendant's sentence beyond the normal statutory maximum pursuant to the Armed Career Criminal Act (ACCA), the modified categorical approach is used to determine whether a defendant has three prior convictions for a violent felony or a serious drug offense, or both, that were "committed on occasions different from one another." These courts, however, do not strictly apply the modified categorical approach as set forth in this Court's jurisprudence. Instead, they permit a sentencing court to find facts contained in certain judicial records—charging documents, plea colloquies, jury instructions, judgments—even if those facts were not necessarily established beyond a reasonable doubt at a jury trial or admitted by the defendant in a guilty plea. This raises the following important questions:

1. Does the Sixth Amendment permit a sentencing court to find that a defendant's prior convictions were committed on different occasions based on non-elemental facts contained in judicial records even if those facts were not proven at a jury trial or admitted in a guilty plea?

2. Should this Court overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998)?

Whether the Sixth Amendment permits a sentencing court to find that a defendant's prior convictions were committed on different occasions based on nonelemental facts contained in judicial records even if those facts were not proven at a jury trial or admitted in a guilty plea