OCTOBER TERM, 1997
Syllabus
ALMENDAREZ-TORRES
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 96-6839. Argued October 14, 1997-Decided March 24,1998
Title 8 U. S. C. § 1326(a) makes it a crime for a deported alien
to return to the United States without special permission and
authorizes a maximum prison term of two years. In 1988, Congress
added subsection (b)(2), which authorizes a maximum prison term of
20 years for "any alien described" in subsection (a), if the
initial "deportation was subsequent to a conviction for commission
of an aggravated felony." Petitioner pleaded guilty to violating §
1326, admitting that he had been deported, that he had unlawfully
returned, and that the earlier deportation had taken place pursuant
to three convictions for aggravated felonies. The District Court
sentenced him under the applicable Sentencing Guideline range to 85
months' imprisonment, rejecting his argument that, since his
indictment failed to mention his aggravated felony convictions, the
court could not sentence him to more than the maximum imprisonment
authorized by § 1326(a). The Fifth Circuit also rejected his
argument, holding that subsection (b)(2) is a penalty provision
which simply permits the imposition of a higher sentence when the
unlawfully returning alien also has a record of prior
convictions.
Held: Subsection (b)(2) is a penalty provision, which
simply authorizes an enhanced sentence. Since it does not create a
separate crime, the Government is not required to charge the fact
of an earlier conviction in the indictment. Pp. 228-248.
(a) An indictment must set forth each element of the crime that
it charges,
Hamling v.
United States, 418 U. S. 87, 117, but it
need not set forth factors relevant only to the sentencing of an
offender found guilty of the charged crime. Within limits, see
McMillan v.
Pennsylvania, 477 U. S. 79, 84-91, the
question of which factors are which is normally a matter for
Congress. See
Staples v.
United States, 511 U. S. 600, 604. Pp.
228-229.
(b) That Congress intended subsection (b)(2) to set forth a
sentencing factor is reasonably clear from a number of
considerations. Its subject matter is a typical sentencing factor,
and the lower courts have almost uniformly interpreted statutes
that authorize higher sentences for recidivists as setting forth
sentencing factors, not as creating separate crimes. In addition,
the words "subject to subsection (b)" at the beginning of
subsection (a) and "[n]otwithstanding subsection (a)" at
225
the beginning of subsection (b) have a meaning that is neither
obscure nor pointless if subsection (b) is interpreted to provide
additional penalties, but not if it is intended to set forth
substantive crimes. Moreover, the circumstances of subsection (b)'s
adoption support this reading of the statutory text. The title of
the 1988 amendment-"Criminal
penalties for reentry of
certain deported aliens," 102 Stat. 4471 (emphasis added)-also
signals a provision that deals with penalties for a substantive
crime, and it is reinforced by a legislative history that speaks
only about the creation of new penalties. Finally, interpreting the
subsection to create a separate offense risks unfairness, for the
introduction at trial of evidence of a defendant's prior crimes
risks significant prejudice. See,
e. g., Spencer v.
Texas, 385 U.
S. 554, 560. Pp. 229-235.
(c) Additional arguments supporting a contrary
interpretation-that the magnitude of the increase in the maximum
authorized sentence shows a congressional intent to create a
separate crime, that statutory language added after petitioner's
conviction offers courts guidance on how to interpret subsection
(b)(2), and that the doctrine of constitutional doubt requires this
Court to interpret the subsection as setting forth a separate
crime-are rejected. Pp.235-239.
(d) There is not sufficient support, in this Court's precedents
or elsewhere, for petitioner's claim that the Constitution requires
Congress to treat recidivism as an element of the offense
irrespective of Congress' contrary intent. At most,
In re
Winship, 397 U.
S. 358, 364;
Mullaney v.
Wilbur, 421 U. S. 684, 704;
Patterson v.
New York, 432 U. S. 197; and
Specht v.
Patterson, 386 U. S. 605, taken
together, yield the broad proposition that
sometimes the
Constitution does require (though sometimes it does not require)
the State to treat a sentencing factor as an element of the crime,
but they offer no more support than that for petitioner's position.
And a legislature's decision to treat recidivism, in particular, as
a sentencing factor rather than an element of the crime does not
exceed constitutional limits on the legislature's power to define
the elements of an offense.
McMillan v.
Pennsylvania,
supra, distinguished. Petitioner's additional arguments-that
courts have a tradition of treating recidivism as an element of the
related crime, and that this Court should simply adopt a rule that
any significant increase in a statutory maximum sentence would
trigger a constitutional "elements" requirement-are rejected.
Pp.239-247.
(e) The Court expresses no view on whether some heightened
standard of proof might apply to sentencing determinations bearing
significantly on the severity of sentence. Cf.
United States
v.
Watts, 519 U. S. 148, 156, and n. 2
(per curiam).
Pp.247-248.
113 F.3d
515, affirmed.
226
BREYER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which STEVENS, SOUTER,
and GINSBURG, JJ., joined,
post, p. 248.
Peter Fleury argued the cause for petitioner. With him on
the briefs was
Timothy Crooks.
Beth S. Brinkmann argued the cause for the United States. With
her on the brief were Acting Solicitor General Dellinger, Acting
Assistant Attorney General Keeney, Deputy Solicitor General
Dreeben, and William C. Brown.*
JUSTICE BREYER delivered the opinion of the Court. Subsection
(a) of 8 U. S. C. § 1326 defines a crime. It forbids an alien who
once was deported to return to the United States without special
permission, and it authorizes a prison term of up to, but no more
than, two years. Subsection (b)(2) of the same section authorizes a
prison term of up to, but no more than, 20 years for "any alien
described" in subsection (a), if the initial "deportation was
subsequent to a conviction for commission of an aggravated felony."
The question before us is whether this latter provision defines a
separate crime or simply authorizes an enhanced penalty. If the
former, i.
e., if it constitutes a separate crime, then the
Government must write an indictment that mentions the additional
element, namely, a prior aggravated felony conviction. If the
latter, i.
e., if the provision simply authorizes an
enhanced sentence when an offender also has an earlier conviction,
then the indictment need not mention that fact, for the fact of an
earlier conviction is not an element of the present crime.
We conclude that the subsection is a penalty provision, which
simply authorizes a court to increase the sentence for a
recidivist. It does not define a separate crime. Consequently,
neither the statute nor the Constitution requires the
*
Stephen R. Sady and
Barbara E. Bergman filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae.
227
Government to charge the factor that it mentions, an earlier
conviction, in the indictment.
I
In September 1995, a federal grand jury returned an indictment
charging petitioner, Hugo Almendarez-Torres, with having been
"found in the United States ... after being deported" without the
"permission and consent of the Attorney General" in "violation of
... Section 1326." App. 3. In December 1995, Almendarez-Torres
entered a plea of guilty. At a hearing, before the District Court
accepted his plea, Almendarez-Torres admitted that he had been
deported, that he had later unlawfully returned to the United
States, and that the earlier deportation had taken place "pursuant
to" three earlier "convictions" for aggravated felonies.
Id., at 10-14.
In March 1996, the District Court held a sentencing hearing.
Almendarez-Torres pointed out that an indictment must set forth all
the elements of a crime. See
Hamling v.
United
States, 418 U. S.
87, 117 (1974). He added that his indictment had not mentioned
his earlier aggravated felony convictions. And he argued that,
consequently, the court could not sentence him to more than two
years imprisonment, the maximum authorized for an offender without
an earlier conviction. The District Court rejected this argument.
It found applicable a Sentencing Guideline range of 77 to 96
months, see United States Sentencing Commission, Guidelines Manual
§ 2L1.2; ch. 5, pt. A (sentencing table) (Nov. 1995) (USSG), and it
imposed a sentence of 85 months' imprisonment. App. 17.
On appeal the Fifth Circuit also rejected petitioner's argument.
113 F.3d
515 (1996). Like seven other Circuits, it has held that
subsection (b)(2) is a penalty provision that simply permits a
sentencing judge to impose a higher sentence when the unlawfully
returning alien also has a record of prior convictions.
United
States v.
Vasquez-Olvera, 999
228
F. 2d 943, 945-947 (CA5 1993); see
United States v.
Forbes, 16 F.3d
1294, 1297-1300 (CA1 1994);
United States v.
DeLeon-Rodriguez, 70 F.3d
764, 765-767 (CA3 1995);
United States v.
Crawford, 18 F.3d
1173, 1176-1178 (CA4 1994);
United States v.
Munoz-Cerna, 47 F.3d
207, 210, n. 6 (CA7
1995); United States v.
Haggerty, 85 F.3d
403, 404-405 (CA8
1996); United States v.
Valdez,
103 F.3d
95, 97-98 (CAlO
1996); United States v.
Palacios-Casquete, 55 F.3d
557, 559560 (CA111995); cf.
United States v.
Cole, 32 F.3d
16, 18-19 (CA2 1994) (reaching same result with respect to 8 U.
S. C. § 1326(b)(1)). The Ninth Circuit, however, has reached the
opposite conclusion.
United States v.
Gonzalez-Medina,
976 F. 2d 570, 572 (1992) (subsection (b)(2) constitutes
separate crime). We granted certiorari to resolve this difference
among the Circuits.
II
An indictment must set forth each element of the crime that it
charges.
Hamling v.
United States, supra, at 117. But
it need not set forth factors relevant only to the sentencing of an
offender found guilty of the charged crime. Within limits, see
McMillan v.
Pennsylvania, 477 U. S. 79, 84-91
(1986), the question of which factors are which is normally a
matter for Congress. See
Staples v.
United States,
511 U. S. 600,
604 (1994) (definition of a criminal offense entrusted to the
legislature, "'particularly in the case of federal crimes, which
are solely creatures of statute''') (quoting
Liparota v.
United States, 471 U. S. 419, 424
(1985)). We therefore look to the statute before us and ask what
Congress intended. Did it intend the factor that the statute
mentions, the prior aggravated felony conviction, to help define a
separate crime? Or did it intend the presence of an earlier
conviction as a sentencing factor, a factor that a sentencing court
might use to increase punishment? In answering this question, we
look to the statute's language, structure, subject matter, context,
and history-factors that typically help courts determine a
statute's objectives and thereby illuminate its text.
229
See, e. g., United States v. Wells,
519 U. S. 482, 490-492
(1997); Garrett v. United States,
471 U. S. 773, 779
(1985).
The directly relevant portions of the statute as it existed at
the time of petitioner's conviction included subsection (a), which
Congress had enacted in 1952, and subsection (b), which Congress
added in 1988. See 8 U. S. C. § 1326 (1952 ed.), as enacted June
27, 1952, § 276, 66 Stat. 229; 8 U. S. C. § 1326 (1988 ed.)
(reflecting amendments made by § 7345(a), 102 Stat. 4471). We print
those portions of text below:
"§ 1326. Reentry of deported alien; criminal penalties for
reentry of certain deported aliens.
"(a) Subject to subsection (b) of this section, any alien who-
"(1) has been ... deported ... , and thereafter "(2) enters ... ,
or is at any time found in, the United States [without the Attorney
General's consent or the legal equivalent],
"shall be fined under title 18, or imprisoned not more than 2
years, or both.
"(b) Notwithstanding subsection (a) of this section, in the case
of any alien described in such subsection-
"(1) whose deportation was subsequent to a conviction for
commission of [certain misdemeanors], or a felony (other than an
aggravated felony), such alien shall be fined under title 18,
imprisoned not more than 10 years, or both; or
"(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be fined under
such title, imprisoned not more than 20 years, or both." 8 U. S. C.
§ 1326.
A
Although the statute's language forces a close reading of the
text, as well as consideration of other interpretive circumstances,
see
Wells, supra, we believe that the answer
230
to the question presented-whether Congress intended subsection
(b)(2) to set forth a sentencing factor or a separate crime-is
reasonably clear.
At the outset, we note that the relevant statutory subject
matter is recidivism. That subject matter-prior commission of a
serious crime-is as typical a sentencing factor as one might
imagine. See,
e. g., USSG §§ 4A1.1, 4A1.2 (Nov. 1997)
(requiring sentencing judge to consider an offender's prior record
in every case); 28 U. S. C. § 994(h) (instructing Commission to
write Guidelines that increase sentences dramatically for serious
recidivists); 18 U. S. C. § 924(e) (Armed Career Criminal Act of
1984) (imposing significantly higher sentence for
felon-in-possession violation by serious recidivists); 21 U. S. C.
§§ 841(b)(1)(A)-(D) (same for drug distribution); United States
Sentencing Commission, 1996 Sourcebook of Federal Sentencing
Statistics 35, 49 (for year ending Sept. 30, 1996, 20.3% of all
federal cases involved offenders with substantial criminal records
(criminal history categories IV-VI); 44.2% of drug cases involved
offenders with prior convictions). Perhaps reflecting this fact,
the lower courts have almost uniformly interpreted statutes (that
authorize higher sentences for recidivists) as setting forth
sentencing factors, not as creating new crimes (at least where the
conduct, in the absence of the recidivism, is independently
unlawful).
E. g., United States v.
McGatha, 891 F.2d
1520, 1525 (CAll 1990) (18 U. S. C. § 924(e));
United
States v.
Arango-Montoya, 61 F.3d
1331, 1339 (CA7 1995) (21 U. S. C. § 841(b));
United
States v.
Jackson, 824 F.2d
21, 25, and n. 6 (CADC 1987). And we have found no statute that
clearly makes recidivism an offense element in such circumstances.
But cf. 18 U. S. C. § 922(g)(1) (prior felony conviction an element
but conduct
not otherwise unlawful).
With recidivism as the subject matter in mind, we turn to the
statute's language. In essence, subsection (a) says that "any
alien" once "deported," who reappears in the United
231
States without appropriate permission, shall be fined or
"imprisoned not more than 2 years." Subsection (b) says that "any
alien described in" subsection (a), "whose deportation was
subsequent to a conviction" for a minor, or for a major, crime, may
be subject to a much longer prison term.
The statute includes the words "subject to subsection (b)" at
the beginning of subsection (a), and the words "[n]otwithstanding
subsection (a)" at the beginning of subsection (b). If Congress
intended subsection (b) to set forth substantive crimes, in respect
to which subsection (a) would define a lesser included offense, see
Blockburger v.
United States, 284 U. S. 299, 304
(1932), what are those words doing there? The dissent believes that
the words mean that the substantive crime defined by "subsection
(a) is inapplicable to an alien covered by subsection (b),"
post, at 264, hence the words represent an effort to say
that a defendant cannot be punished for both substantive crimes.
But that is not what the words say. Nor has Congress ever (to our
knowledge) used these or similar words anywhere else in the federal
criminal code for such a purpose. See,
e. g., 18 U. S. C. §
113 (aggravated and simple assault); §§ 1111, 1112 (murder and
manslaughter); § 2113 (bank robbery and incidental crimes); §§
2241, 2242 (aggravated and simple sexual abuse). And this should
come as no surprise since, for at least 60 years, the federal
courts have presumed that Congress does
not intend for a
defendant to be cumulatively punished for two crimes where one
crime is a lesser included offense of the other. See
Whalen
v.
United States, 445 U. S. 684, 691-693
(1980); Blockburger, supra.
If, however, Congress intended subsection (b) to provide
additional penalties, the mystery disappears. The words "subject to
subsection (b)" and "[n]otwithstanding subsection (a)" then are
neither obscure nor pointless. They say, without obscurity, that
the crime set forth in subsection (a), which both defines a crime
and sets forth a penalty, is "sub-
232
ject to" subsection (b)'s different penalties (where the alien
is also a felon or aggravated felon). And (b)'s higher maximum
penalties may apply to an offender who violates (a)
"notwithstanding" the fact that (a) sets forth a lesser penalty for
one who has committed the same substantive crime. Nor is it
pointless to specify that (b)'s punishments, not (a)'s punishment,
apply whenever an offender commits (a)'s offense in a manner set
forth by (b).
Moreover, the circumstances of subsection (b)'s adoption support
this reading of the statutory text. We have examined the language
of the statute in 1988, when Congress added the provision here at
issue. That original language does not help petitioner. In 1988,
the statute read as follows (with the 1988 amendment
underscored):
"§ 1326. Reentry of deported alien; criminal penalties for
reentry of certain deported aliens.
"(a) Subject to subsection (b) of this section, any alien who-
"(1) has been ... deported ... , and thereafter "(2) enters ... ,
or is at any time found in, the United States [without the Attorney
General's consent or the legal equivalent],
"shall be guilty of a felony, and upon conviction thereof, be
punished by imprisonment of not more than two years, or by a fine
of not more than $1,000, or both.
"(b) Notwithstanding subsection (a) of this section, in the case
of any alien described in such subsection-
"(1) whose deportation was subsequent to a conviction for
commission of a felony (other than an aggravated felony), such
alien shall be fined under title 18, imprisoned not more than 5
years, or both; or
"(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien shall be fined under
such title, imprisoned not more than 15 years, or both." 8 U. S. C.
§ 1326 (1988 ed.) (emphasis added).
233
Thus, at the time of the amendment, the operative language of
subsection (a)'s ordinary reentering-alien provision said that a
reentering alien
"shall be guilty of a felony, and
upon
conviction thereof, be punished by imprisonment of not more
than two years, or by a fine of not more than $1,000." The 1988
amendment, subsection (b), by way of contrast, referred only to
punishment-an increased punishment for the felon, or the aggravated
felon, whom subsection (a) has "described." Although one could read
the language, "any alien described in [subsection (a)]," standing
alone, as importing subsection (a)'s elements into new offenses
defined in subsection (b), that reading seems both unusual and
awkward when taken in context, for the reasons just given.
Linguistically speaking, it seems more likely that Congress simply
meant to "describe" an alien who, in the words of the 1988 statute,
was "guilty of a felony" defined in subsection (a) and "convict[ed]
thereof."
As the dissent points out,
post, at 265, Congress later
struck from subsection (a) the words just quoted, and added in
their place the words, "shall be fined under title 18, or
imprisoned not more than two years." See Immigration Act of 1990
(1990 Act), § 543(b)(3), 104 Stat. 5059. But this amendment was one
of a series in the 1990 Act that uniformly updated and simplified
the phrasing of various, disparate civil and criminal penalty
provisions in the Immigration and Naturalization Act. See,
e. g., 1990 Act, § 543(b)(1) (amending 8 U. S. C. §
1282(c)); § 543(b)(2)(C) (amending 8 u. S. C. § 1325); § 543(b)(4)
(amending 8 U. S. C. § 1327); § 543(b)(5) (amending 8 U. S. C. §
1328). The section of the Act that contained the amendment is
titled "Increase in Fine Levels; Authority of the INS to Collect
Fines," and the relevant subsection, simply "Criminal Fine Levels."
1990 Act, § 543(b), 104 Stat. 5057, 5059. Although the 1990
amendment did have the effect of making the penalty provision in
subsection (a) (which had remained unchanged since 1952) parallel
with its counterparts in later enacted subsection (b),
234
neither the amendment's language, nor the legislative history of
the 1990 Act, suggests that in this housekeeping measure, Congress
intended to change, or to clarify, the fundamental relationship
between the two subsections.
We also note that "the title of a statute and the heading of a
section" are "tools available for the resolution of a doubt" about
the meaning of a statute.
Trainmen v.
Baltimore &
Ohio R. Co., 331 U. S. 519, 528-529
(1947); see also
INS v.
National Center for Immigrants'
Rights, Inc., 502 U. S. 183, 189 (1991). The title of the 1988
amendment is "Criminal
penalties for reentry of certain
deported aliens." § 7345, 102 Stat. 4471 (emphasis added). A title
that contains the word "penalties" more often, but certainly not
always, see
post, at 266-267, signals a provision that deals
with penalties for a substantive crime.
In this instance the amendment's title does not reflect
careless, or mistaken, drafting, for the title is reinforced by a
legislative history that speaks about, and only about, the creation
of new penalties. See S. 973, 100th Cong., 1st Sess. (1987), 133
Congo Rec. 8771 (1987) (original bill titled, "A bill to provide
for additional criminal penalties for deported aliens who reenter
the United States, and for other purposes"); 134 Congo Rec. 27429
(1988) (section-by-section analysis referring to Senate bill as
increasing penalties for unlawful reentry); id., at 27445 (remarks
of Sen. D' Amato) (law would "increas[e] current penalties for
illegal reentry after deportation"); id., at 27462 (remarks of Sen.
Chiles) (law would "impose stiff penalties" against deported aliens
previously convicted of drug offenses); 133 Congo Rec. 2884028841
(1987) (remarks of Rep. Smith) (corresponding House bill creates
three-tier penalty structure). The history, to our knowledge,
contains no language at all that indicates Congress intended to
create a new substantive crime.
Finally, the contrary interpretation-a substantive criminal
offense-risks unfairness. If subsection (b)(2) sets forth a
separate crime, the Government would be required to
235
prove to the jury that the defendant was previously deported
"subsequent to a conviction for commission of an aggravated
felony." As this Court has long recognized, the introduction of
evidence of a defendant's prior crimes risks significant prejudice.
See,
e. g., Spencer v.
Texas, 385 U. S. 554, 560 (1967)
(evidence of prior crimes "is generally recognized to have
potentiality for prejudice"). Even if a defendant's stipulation
were to keep the name and details of the previous offense from the
jury, see
Old Chief v.
United States, 519 U. S. 172, 178-179
(1997), jurors would still learn, from the indictment, the judge,
or the prosecutor, that the defendant had committed an
aggravated felony. And, as we said last Term, "there can be
no question that evidence of the ...
nature of the prior
offense," here, that it was "aggravated" or serious, "carries a
risk of unfair prejudice to the defendant."
Id., at 185
(emphasis added). Like several lower courts, we do not believe,
other things being equal, that Congress would have wanted to create
this kind of unfairness in respect to facts that are almost never
contested. See,
e. g.,
United States v.
Forbes, 16 F. 3d, at 1298-1300;
United States v.
Rumney, 867 F.2d
714, 718-719 (CAl1989);
United States v.
Brewer,
853 F.2d
1319, 1324-1325 (CA6 1988) (en bane);
United States v.
Jackson, 824 F. 2d, at 25-26;
Government of Virgin
Islands v.
Castillo, 550 F.2d
850, 854 (CA3 1977).
In sum, we believe that Congress intended to set forth a
sentencing factor in subsection (b)(2) and not a separate criminal
offense.
B
We must also consider several additional arguments that have
been or might be made for a contrary interpretation of the statute.
First, one might try to derive a congressional intent to establish
a separate crime from the
magnitude of the increase in the
maximum authorized sentence. The magnitude of the change that
Congress made in 1988, however, proves little. That change-from a
2-year maximum to 5- and 15-year maximums-is well within the
range
236
set forth in other statutes that the lower courts have generally
interpreted as providing for sentencing enhancements. Compare 8 U.
S. C. § 1326 (1988 ed.) with 21 U. S. C. §§ 841(b)(1)(B) and (D)
(distributing less than 50 kilograms of marijuana, maximum 5 years;
distributing 100 or more kilograms of marijuana, 5 to 40 years), §§
841(b)(1)(A) and (C) (distributing less than 100 grams of heroin,
maximum 20 years; distributing 1 kilogram or more of heroin,
maximum of life imprisonment), § 841(b)(1)(B) (distributing 500
grams or more of cocaine, 5 to 40 years; same, with prior drug
felony conviction, 10 years to life); § 962 (doubling maximum term
for second and subsequent violations of drug importation laws); 18
U. S. C. § 844 (using or carrying explosive device during
commission of felony, maximum 10 years; subsequent offense, maximum
20 years); § 2241(c) (sexual abuse of children, maximum life;
second offense, mandatory life); § 2320(a) (trafficking in
counterfeit goods, maximum 10 years; subsequent offense, maximum 20
years). Congress later amended the statute, increasing the maximums
to 10 and to 20 years, respectively. Violent Crime Control and Law
Enforcement Act of 1994, §§ 130001(b)(1)(B) and (b)(2), 108 Stat.
2023. But nothing suggests that, in doing so, Congress intended to
transform that statute's basic nature. And the later limits are
close to the range suggested by other statutes regardless.
Second, petitioner and the dissent point, in part, to statutory
language that did not exist when petitioner was convicted in 1995.
Petitioner, for example, points out that in 1996, Congress added
two new subsections, (b)(3) and (b)(4), which, petitioner says,
created new substantive crimes. See Antiterrorism and Effective
Death Penalty Act of 1996, § 401(c), 110 Stat. 1267 (adding
subsection (b)(3)); Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), § 305(b), 110 Stat. 3009-606
to 3009-607 (adding subsection (b)(4)). Both petitioner and the
dissent also refer to another 1996 statutory provision in which
Congress used
237
the word "offense" to refer to the subsection now before us. See
IIRIRA, § 334, 110 Stat. 3009-635.
These later enacted laws, however, are beside the point.
They do not declare the meaning of earlier law. Cf.
Federal
Housing Administration v.
Darlington, Inc., 358 U. S. 84, 90 (1958).
They do not seek to clarify an earlier enacted general term. Cf.
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367,
380-381 (1969). They do not depend for their effectiveness upon
clarification, or a change in the meaning of an earlier statute.
Cf.
Seatrain Shipbuilding Corp. v.
Shell Oil Co.,
444 U. S. 572,
595-596 (1980). They do not reflect any direct focus by Congress
upon the meaning of the earlier enacted provisions. Cf.
ibid.;
Darlington, supra, at 86. Consequently, we do not find in them
any forward looking legislative mandate, guidance, or direct
suggestion about how courts should interpret the earlier
provisions.
Regardless, it is not obvious that the two new subsections to
which petitioner points create new crimes (a matter on which we
express no view) nor, in adding them, did Congress do more than
leave the legal question here at issue where it found it. The fact
that Congress used a technical, crimesuggesting
word-"offense"-eight years later in a different, and minor,
statutory provision proves nothing-not least because it is more
than offset by different words in the same later statute that
suggest with greater force the exact opposite, namely, the precise
interpretation of the relation of subsection (b) to subsection (a)
that we adopt. See IIRIRA, § 321(c), 110 Stat. 3009-628 (stating
that a new definition of "aggravated felony" applies
"under"
subsection (b)
"only to violations" of subsection (a)).
Finally, petitioner and the dissent argue that the doctrine of
"constitutional doubt" requires us to interpret subsection (b)(2)
as setting forth a separate crime. As Justice Holmes said long ago:
"A statute must be construed, if fairly possible, so as to avoid
not only the conclusion that it is unconstitutional but also grave
doubts upon that score."
United
238
States v.
Jin Fuey Moy, 241 U. S. 394, 401 (1916)
(citing
United States ex rel. Attorney General v.
Delaware &
Hudson Co., 213 U. S. 366, 408
(1909)); see also
Ashwander v. TVA,
297 U. S. 288, 348 (1936)
(Brandeis, J., concurring). "This canon is followed out of respect
for Congress, which we assume legislates in the light of
constitutional limitations."
Rust v.
Sullivan,
500 U. S. 173,
191 (1991); see also
FTC v.
American Tobacco Co.,
264 U. S. 298,
305-307 (1924). The doctrine seeks in part to minimize disagreement
between the branches by preserving congressional enactments that
might otherwise founder on constitutional objections. It is not
designed to aggravate that friction by creating (through the power
of precedent) statutes foreign to those Congress intended, simply
through fear of a constitutional difficulty that, upon analysis,
will evaporate. Thus, those who invoke the doctrine must believe
that the alternative is a serious likelihood that the statute will
be held unconstitutional. Only then will the doctrine serve its
basic democratic function of maintaining a set of statutes that
reflect, rather than distort, the policy choices that elected
representatives have made. For similar reasons, the statute must be
genuinely susceptible to two constructions after, and not before,
its complexities are unraveled. Only then is the statutory
construction that avoids the constitutional question a "fair"
one.
Unlike the dissent, we do not believe these conditions are met
in the present case. The statutory language is somewhat complex.
But after considering the matter in context, we believe the
interpretative circumstances point significantly in one direction.
More important, even if we were to assume that petitioner's
construction of the statute is "fairly possible,"
Jin Fuey Moy,
supra, at 401, the constitutional questions he raises, while
requiring discussion, simply do
not lead us to doubt gravely
that Congress may authorize courts to impose longer sentences upon
recidivists who commit a particular crime. The fact that we, unlike
the dissent, do
239
not gravely doubt the statute's constitutionality in this
respect is a crucial point. That is because the "constitutional
doubt" doctrine does not apply mechanically whenever there arises a
significant constitutional question the answer to which is not
obvious. And precedent makes clear that the Court need not apply
(for it has not always applied) the doctrine in circumstances
similar to those here-where a constitutional question, while
lacking an obvious answer, does not lead a majority gravely to
doubt that the statute is constitutional. See,
e. g., Rust,
500 U. S., at 190-191 (declining to apply doctrine although
petitioner's constitutional claims not "without some force"); id.,
at 204-207 (Blackmun, J., dissenting);
United States v.
Monsanto, 491
U. S. 600, 611 (1989);
id., at 636 (Blackmun, J.,
dissenting);
United States v.
Locke, 471 U. S. 84, 95 (1985);
id., at 120 (STEVENS, J., dissenting).
III
Invoking several of the Court's precedents, petitioner claims
that the Constitution requires Congress to treat recidivism as an
element of the offense-irrespective of Congress' contrary intent.
Moreover, petitioner says, that requirement carries with it three
subsidiary requirements that the Constitution mandates in respect
to ordinary, legislatively intended, elements of crimes. The
indictment must state the "element." See,
e. g., Hamling v.
United States, 418 U. S., at 117. The Government must prove
that "element" to a jury. See,
e. g., Duncan v.
Louisiana, 391
U. S. 145, 149 (1968). And the Government must prove the
"element" beyond a reasonable doubt. See,
e. g., Patterson
v.
New York, 432 U. S. 197, 210
(1977). We cannot find sufficient support, however, in our
precedents or elsewhere, for petitioner's claim.
This Court has explicitly held that the Constitution's Due
Process Clause "protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged."
240
In re Winship, 397 U. S. 358, 364
(1970). But
Winship, the case in which the Court set forth
this proposition of constitutionallaw, does not decide this case.
It said that the Constitution entitles juveniles, like adults, to
the benefit of proof beyond a reasonable doubt in respect to the
elements of the crime. It did not consider whether, or when,
the Constitution requires the Government to treat a particular fact
as an element, i.
e., as a "fact necessary to constitute the
crime," even where the crime-defining statute does not do so.
Mullaney v.
Wilbur, 421 U. S. 684 (1975),
provides petitioner with stronger support. The Court there struck
down a state homicide statute under which the State presumed that
all homicides were committed with "malice," punishable by life
imprisonment, unless the defendant proved that he had acted in the
heat of passion.
Id., at 688. The Court wrote that "if
Winship were limited to those facts that constitute a crime
as defined by state law, a State could undermine many of the
interests that decision sought to protect" just by redefining "the
elements that constitut[ed] different crimes, characterizing them
as factors that bear solely on the extent of punishment."
Id., at 698. It simultaneously held that the prosecution
must establish "beyond a reasonable doubt" the nonexistence of
"heat of passion" -the fact that, under the State's statutory
scheme, distinguished a homicide punishable by a life sentence from
a homicide punishable by a maximum of 20 years.
Id., at 704.
Read literally, this language, we concede, suggests that Congress
cannot permit judges to increase a sentence in light of recidivism,
or any other factor, not set forth in an indictment and proved to a
jury beyond a reasonable doubt.
This Court's later case,
Patterson v.
New York,
supra, however, makes absolutely clear that such a reading of
Mullaney is wrong. The Court, in
Patterson, pointed
out that the State in
Mullaney made the critical fact-the
absence of "heat of passion"-not simply a potential sentencing
factor,
but also a critical part of the definition of
"malice afore-
241
thought," which was itself in turn "part of" the statute's
definition of "homicide," the crime in question.
Patterson,
432 U. S., at 215-216. (The Maine Supreme Court, in defining the
crime, had said that "malice" was "presumed" unless "rebutted" by
the defendant's showing of "heat of passion."
Id., at 216.)
The Court found this circumstance extremely important. It said that
Mullaney had considered (and held "impermissible") the
shifting of a burden of proof
"with respect to a fact which the
State deems so important that it must be either proved or
presumed." 432 U. S., at 215 (emphasis added). And the Court
then held that similar burden shifting
was permissible with
respect to New York's homicide-related sentencing factor "extreme
emotional disturbance."
Id., at 205-206. That factor was not
a factor that the state statute had deemed "so important" in
relation to the crime that it must be either "proved or presumed."
Id., at 205-206,215.
The upshot is that
Mullaney's language, if read
literally, suggests that the Constitution requires that most, if
not all, sentencing factors be treated as elements. But
Patterson suggests the exact opposite, namely, that the
Constitution requires scarcely any sentencing factors to be treated
in that way. The cases, taken together, cannot significantly help
petitioner, for the statute here involves a sentencing factorthe
prior commission of an aggravated felony-that is neither "presumed"
to be present, nor need be "proved" to be present, in order to
prove the commission of the relevant crime. See 8 U. S. C. §
1326(a) (defining offense elements). Indeed, as we have said, it
involves one of the most frequently found factors that affects
sentencing-recidivism.
Nor does
Specht v.
Patterson, 386 U. S. 605 (1967),
which petitioner cites, provide significant additional help, for
Specht was decided before
Patterson (indeed before
Winship); it did not consider the kind of matter here at
issue; and, as this Court later noted, the Colorado defendant in
Specht was "confronted with 'a radically different
situation'
242
from the usual sentencing proceeding."
McMillan v.
Pennsylvania, 477 U. S., at 89. At most, petitioner might
read all these cases, taken together, for the broad proposition
that
sometimes the Constitution does require (though
sometimes it does not require) the State to treat a sentencing
factor as an element. But we do not see how they can help
petitioner more than that.
We turn then to the case upon which petitioner must primarily
rely,
McMillan v.
Pennsylvania. The Court there
considered a Pennsylvania statute that set forth a sentencing
factor-"visibly possessing a firearm" -the presence of which
required the judge to impose a minimum prison term of five years.
The Court held that the Constitution did
not require the
State to treat the factor as an element of the crime. In so
holding, the Court said that the State's "link[ing] the 'severity
of punishment' to 'the presence or absence of an identified fact'"
did
not automatically make of that fact an "element."
Id., at 84 (quoting
Patterson v.
New York,
supra, at 214). It said, citing
Patterson, that "the
state legislature's definition of the elements of the offense is
usually dispositive." 477 U. S., at 85. It said that it would not
"define precisely the constitutional limits" of a legislature's
power to define the elements of an offense.
Id., at 86. And
it held that, whatever those limits might be, the State had not
exceeded them.
Ibid. Petitioner must therefore concede that
"firearm possession" (in respect to a mandatory minimum sentence)
does not violate those limits. And he must argue that, nonetheless,
"recidivism" (in respect to an authorized maximum) does violate
those limits.
In assessing petitioner's claim, we have examined
McMillan to determine the various features of the case upon
which the Court's conclusion arguably turned. The
McMillan
Court pointed out: (1) that the statute plainly "does not
transgress the limits expressly set out in
Patterson,"
ibid.; (2) that the defendant (unlike
Mullaney's
defendant) did not face "'a differential in sentencing ranging from
a nominal
243
fine to a mandatory life sentence,'" 477 U. S., at 87 (quoting
Mullaney, 421 U. S., at 700); (3) that the statute did not
"alte[r] the maximum penalty for the crime" but "operates solely to
limit the sentencing court's discretion in selecting a penalty
within the range already available to it," 477 U. S., at 87-88; (4)
that the statute did not "creat[e] a separate offense calling for a
separate penalty," id., at 88; and (5) that the statute gave "no
impression of having been tailored to permit the visible possession
finding to be a tail which wags the dog of the substantive
offense," but, to the contrary, "simply took one factor that has
always been considered by sentencing courts to bear on punishment
... and dictated the precise weight to be given that factor," id.,
at 88, 89-90.
This case resembles
McMillan in respect to most of these
factors. But it is different in respect to the third factor, for it
does "alte[r] the maximum penalty for the crime," id., at 87; and
it also creates a wider range of appropriate punishments than did
the statute in
McMillan. We nonetheless conclude that these
differences do not change the constitutional outcome for several
basic reasons.
First, the sentencing factor at issue here-recidivism-is a
traditional, if not the most traditional, basis for a sentencing
court's increasing an offender's sentence. See,
e. g., Parke
v.
Raley, 506
U. S. 20, 26 (1992) (Recidivism laws "have a long tradition in
this country that dates back to colonial times" and currently are
in effect in all 50 States); U. S. Dept. of Justice, Office of
Justice Programs, Statutes Requiring the Use of Criminal History
Record Information 17-41 (June 1991) (50-state survey); USSG
§§4A1.1, 4A1.2 (Nov. 1997) (requiring sentencing court to consider
defendant's prior record in every case). Consistent with this
tradition, the Court said long ago that a State need not allege a
defendant's prior conviction in the indictment or information that
alleges the elements of an underlying crime, even though the
conviction was "necessary to bring the case within the statute."
Graham v.
West Virginia, 224 U. S. 616, 624
(1912). That con-
244
clusion followed, the Court said, from
"the distinct nature
of the issue," and the fact that recidivism "does not relate to
the commission of the offense,
but goes to the punishment
only, and therefore ... may be subsequently decided."
Id., at 629 (emphasis added). The Court has not deviated
from this view. See
Oyler v.
Boles, 368 U. S. 448, 452 (1962)
(due process does not require advance notice that trial for
substantive offense will be followed by accusation that the
defendant is a habitual offender);
Parke, supra, at 27 ("[A]
charge under a recidivism statute does not state a separate
offense, but goes to punishment only"). And, as we said before,
supra, at 230, Congress, reflecting this tradition, has
never, to our knowledge, made a defendant's recidivism an element
of an offense where the conduct proscribed is otherwise unlawful.
See
United States v.
Jackson, 824
F.2d 21, 25, and n. 6 (CADC 1987) (opinion of R. Ginsburg, J.)
(referring to fact that few, if any, federal statutes make "prior
criminal convictions ... elements of another criminal offense to be
proved before the jury"). Although these precedents do not
foreclose petitioner's claim (because, for example, the state
statute at issue in
Graham and
Oyler provided for a
jury determination of disputed prior convictions), to hold that the
Constitution requires that recidivism be deemed an "element" of
petitioner's offense would mark an abrupt departure from a
longstanding tradition of treating recidivism as "go[ing] to the
punishment only."
Graham, supra, at 629.
Second, the major difference between this case and
McMillan consists of the circumstance that the sentencing
factor at issue here (the prior conviction) triggers an increase in
the maximum permissive sentence, while the sentencing factor at
issue in
McMillan triggered a mandatory minimum sentence.
Yet that difference-between a permissive maximum and a mandatory
minimum-does not systematically, or normally, work to the
disadvantage of a criminal defendant. To the contrary, a statutory
minimum binds a sentencing judge; a statutory maximum does not. A
mandatory mini-
245
mum can, as JUSTICE STEVENS dissenting in McMillan pointed out,
"mandate a minimum sentence of imprisonment more than twice as
severe as the maximum the trial judge would otherwise have
imposed." 477 U. S., at 95. It can eliminate a sentencing judge's
discretion in its entirety. See,
e. g., 18 U. S. C. §
2241(c) (authorizing maximum term of life imprisonment for sexual
abuse of children; mandating life imprisonment for second offense).
And it can produce unfairly disproportionate impacts on certain
kinds of offenders. See United States Sentencing Commission,
Mandatory Minimum Penalties in the Federal Criminal Justice System
26-34 (Aug. 1991) (discussing "tariff" and "cliff" effects of
mandatory minimums). In sum, the risk of unfairness to a particular
defendant is no less, and may well be greater, when a mandatory
minimum sentence, rather than a permissive maximum sentence, is at
issue.
Although McMillan pointed to a difference between mandatory
minimums and higher authorized maximums, it neither "rested its
judgment" on that difference, nor "rejected" the above analysis, as
the dissent contends,
post, at 254. Rather, McMillan said
that the petitioners' argument in that case would have had "more
superficial appeal" if the sentencing fact "exposed them to greater
or additional punishment." 477 U. S., at 88 (emphasis added). For
the reasons just given, and in light of the particular sentencing
factor at issue in this case-recidivism-we should take
McMillan's statement to mean no more than it said, and
therefore not to make a determinative difference here.
Third, the statute's broad permissive sentencing range does not
itself create significantly greater unfairness. Judges (and parole
boards) have typically exercised their discretion within broad
statutory ranges. See, e. g., supra, at 232, 236 (statutory
examples); National Institute of Justice, Sentencing Reform in the
United States (Aug. 1985) (survey of sentencing laws in the 50
States); L. Friedman, Crime and Punishment in American History
159-163 (1993)
246
(history of indeterminate sentencing). And the Sentencing
Guidelines have recently sought to channel that discretion using
"sentencing factors" which no one here claims that the Constitution
thereby makes "elements" of a crime.
Finally, the remaining
McMillan factors support the
conclusion that Congress has the constitutional power to treat the
feature before us-prior conviction of an aggravated felony-as a
sentencing factor for this particular offense (illegal entry after
deportation). The relevant statutory provisions do not change a
pre-existing definition of a wellestablished crime, nor is there
any more reason here, than in
McMillan, to think Congress
intended to "evade" the Constitution, either by "presuming" guilt
or "restructuring" the elements of an offense. Cf.
McMillan,
supra, at 86-87, 89-90.
For these reasons, we cannot find in
McMillan (a case
holding that the Constitution
permits a legislature to
require a longer sentence for gun possession) significant
support for the proposition that the Constitution
forbids a
legislature to
authorize a longer sentence for
recidivism.
Petitioner makes two basic additional arguments in response. He
points to what he calls a different "tradition"that of courts
having treated recidivism as an element of the related crime. See,
e. g., Massey v.
United States, 281 F. 293, 297-298
(CA8 1922);
Singer v.
United States, 278 F. 415, 420
(CA3 1922);
People v.
Sickles, 51 N. E. 288, 289 (N.
Y. 1898); see also
post, at 256-257 (citing authority). We
do not find this claim convincing, however, for any such tradition
is not uniform. See
Spencer v.
Texas, 385 U. S., at
566 ("The method for determining prior convictions varies... .
between jurisdictions affording a jury trial on this issue... . and
those leaving that question to the court"); Note, Recidivist
Procedures, 40 N. Y. U. L. Rev. 332, 347 (1965) (as of 1965, eight
States' recidivism statutes provide for determination of prior
convictions by judge, not jury). Nor does it appear modern. Compare
State v.
Thorne, 129 Wash. 2d
247
736, 776-784, 921 P. 2d 514, 533-538 (1996) (upholding state
recidivism law against federal constitutional challenge), with
State v.
Furth, 5 Wash. 2d 1, 11-19, 104 P. 2d 925,
930-933 (1940). And it nowhere (to our knowledge) rested upon a
federal constitutional guarantee. See,
e. g., Massey v.
United States, supra, at 297 (applying federal law, noting
jury determination of prior offense applied "unless the statute
designates a different mode of procedure").
Petitioner also argues, in essence, that this Court should
simply adopt a rule that any significant increase in a statutory
maximum sentence would trigger a constitutional "elements"
requirement. We have explained why we believe the Constitution, as
interpreted in
McMillan and earlier cases, does not impose
that requirement. We add that such a rule would seem anomalous in
light of existing case law that permits a judge, rather than a
jury, to determine the existence of factors that can make a
defendant eligible for the death penalty, a punishment far more
severe than that faced by petitioner here. See
Walton v.
Arizona, 497
U. S. 639, 647 (1990) (rejecting capital defendant's argument
that every finding of fact underlying death sentence must be made
by a jury);
Hildwin v.
Florida, 490 U. S. 638, 640-641
(1989)
(per curiam) (judge may impose death penalty based on
his finding of aggravating factor because such factor is not
element of offense to be determined by jury);
Spaziano v.
Florida, 468
U. S. 447, 465 (1984) (same). And we would also find it
difficult to reconcile any such rule with our precedent holding
that the sentencing-related circumstances of recidivism are not
part of the definition of the offense for double jeopardy purposes.
Graham, 224 U. S., at 623-624.
For these reasons, we reject petitioner's constitutional claim
that his recidivism must be treated as an element of his
offense.
IV
We mention one final point. Petitioner makes no separate,
subsidiary, standard of proof claims with respect to his
248
sentencing, perhaps because he admitted his recidivism at the
time he pleaded guilty and would therefore find it difficult to
show that the standard of proof could have made a difference to his
case. Accordingly, we express no view on whether some heightened
standard of proof might apply to sentencing determinations that
bear significantly on the severity of sentence. Cf.
United
States v.
Watts, 519 U. S. 148, 156, and
n. 2 (1997)
(per curiam) (acknowledging, but not resolving,
"divergence of opinion among the Circuits" as to proper standard
for determining the existence of "relevant conduct" that would lead
to an increase in sentence).
The judgment of the Court of Appeals is
Affirmed.
JUSTICE SCALIA, with whom JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join, dissenting.
Because Hugo Roman Almendarez-Torres illegally reentered the
United States after having been convicted of an aggravated felony,
he was subject to a maximum possible sentence of 20 years'
imprisonment. See 8 U. S. C. § 1326(b)(2). Had he not been
convicted of that felony, he would have been subject to a maximum
of only two years. See 8 U. S. C. § 1326(a). The Court today holds
that § 1326(b)(2) does not set forth a separate offense, and that
conviction of a prior felony is merely a sentencing enhancement for
the offense set forth in § 1326(a). This causes the Court to
confront the difficult question whether the Constitution requires a
fact which substantially increases the maximum permissible
punishment for a crime to be treated as an element of that crime-to
be charged in the indictment, and found beyond a reasonable doubt
by a jury. Until the Court said so, it was far from obvious that
the answer to this question was no; on the basis of our prior law,
in fact, the answer was considerably doubtful.
In all our prior cases bearing upon the issue, however, we
confronted a criminal statute or state-court criminal ruling
249
that unambiguously relieved the prosecution of the burden of
proving a critical fact to the jury beyond a reasonable doubt. In
McMillan v.
Pennsylvania, 477 U. S. 79 (1986), the
statute provided that" 'visibl[e] possess[ion] [of] a firearm'"
"'shall not be an element of the crime,'" but shall be determined
at sentencing by "'[t]he court ... by a preponderance of the
evidence,'" id., at 81, n. 1 (quoting 42 Pa. Cons. Stat. § 9712
(1982)). In
In re Winship, 397 U. S. 358 (1970), it
provided that determinations of criminal action in juvenile cases
"'must be based on a preponderance of the evidence,'" id., at 360
(quoting N. Y. Family Court Act § 744(b)). In
Patterson v.
New York, 432
U. S. 197 (1977), the statute provided that extreme emotional
disturbance" 'is an affirmative defense,' " id., at 198, n. 2
(quoting N. Y. Penal Law § 125.25 (McKinney 1975)). And in
Mullaney v.
Wilbur,
421 U. S. 684 (1975),
Maine's highest court had held that in murder cases malice
aforethought was presumed and had to be negated by the defendant,
id., at 689 (citing
State v.
Lafferty, 309 A.
2d 647 (1973)).
In contrast to the provisions involved in these cases, 8 U. S.
C. § 1326 does not, on its face, place the constitutional issue
before us: It does not say that subsection (b)(2) is merely a
sentencing enhancement. The text of the statute supports, if it
does not indeed demand, the conclusion that subsection (b)(2) is a
separate offense that includes the violation described in
subsection (a) but adds the additional element of prior felony
conviction. I therefore do not reach the difficult constitutional
issue in this case because I adopt, as I think our cases require,
that reasonable interpretation of § 1326 which avoids the problem.
Illegal reentry
simpliciter (§ 1326(a)) and illegal reentry
after conviction of an aggravated felony (§ 1326(b)(2)) are
separate criminal offenses. Prior conviction of an aggravated
felony being an element of the latter offense, it must be charged
in the indictment. Since it was not, petitioner's sentence must be
set aside.
250
I
"[W]here a statute is susceptible of two constructions, by one
of which grave and doubtful constitutional questions arise and by
the other of which such questions are avoided, our duty is to adopt
the latter."
United States ex rel. Attorney General v.
Delaware &
Hudson Co., 213 U. S. 366, 408
(1909). This "cardinal principle," which "has for so long been
applied by this Court that it is beyond debate,"
Edward J.
DeBartolo Corp. v.
Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 575
(1988), requires merely a determination of serious constitutional
doubt, and not a determination of
unconstitutionality. That must be so, of course, for
otherwise the rule would "mea[n] that our duty is to first decide
that a statute is unconstitutional and then proceed to hold that
such ruling was unnecessary because the statute is susceptible of a
meaning, which causes it not to be repugnant to the Constitution."
United States ex rel. Attorney General v.
Delaware
&
Hudson Co., supra, at 408. The Court contends that
neither of the two conditions for application of this rule is
present here: that the constitutional question is not doubtful, and
that the statute is not susceptible of a construction that will
avoid it. I shall address the former point first. 1
1 The Court asserts that we have declined to apply the doctrine
"in circumstances similar to those here-where a constitutional
question, while lacking an obvious answer, does not lead a majority
gravely to doubt that the statute is constitutional."
Ante,
at 239. The cases it cites, however, do not support this
contention. In
Rust v.
Sullivan, 500 U. S. 173 (1991), the
Court believed that "[t]here [was]
no question but that the
statutory prohibition ... [was] constitutional," id., at 192
(emphasis added). And in
United States v.
Locke,
471 U. S. 84
(1985), the Court found the doctrine inapplicable not because of
lack of constitutional doubt, but because the statutory language
did not permit an interpretation that would "avoid a constitutional
question,"
id., at 96. Similarly, in
United States v.
Monsanto, 491
U. S. 600 (1989), "the language of [the statute was] plain and
unambiguous," id., at 606.
251
That it is genuinely doubtful whether the Constitution permits a
judge (rather than a jury) to determine by a mere preponderance of
the evidence (rather than beyond a reasonable doubt) a fact that
increases the maximum penalty to which a criminal defendant is
subject is clear enough from our prior cases resolving questions on
the margins of this one. In
In re Winship, supra, we
invalidated a New York statute under which the burden of proof in a
juvenile delinquency proceeding was reduced to proof by a
preponderance of the evidence. We held that "the Due Process Clause
protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged," 397 U. S., at 364, and that the same
protection extends to "a juvenile ... charged with an act which
would constitute a crime if committed by an adult," id., at
359.
Five years later, in
Mullaney v.
Wilbur, supra, we
unanimously extended
Winship's protections to determinations
that went not to a defendant's guilt or innocence, but simply to
the length of his sentence. We invalidated Maine's homicide law,
under which all intentional murders were presumed to be committed
with malice aforethought (and, as such, were punishable by life
imprisonment), unless the defendant could rebut this presumption
with proof that he acted in the heat of passion (in which case the
conviction would be reduced to manslaughter and the maximum
sentence to 20 years). We acknowledged that "under Maine law these
facts of intent [were] not general elements of the crime of
felonious homicide[, but] [i]nstead, [bore] only on the appropriate
punishment category." 421 U. S., at 699. Nonetheless, we rejected
this distinction between guilt and punishment. "[I]f
Winship," we said, "were limited to those facts that
constitute a crime as defined by state law, a State could undermine
many of the interests that decision sought to protect without
effecting any substantive change in its law. It would only be
necessary to redefine the elements that constitute differ-
252
ent crimes, characterizing them as factors that bear solely on
the extent of punishment."
Id., at 697-698.
In
Patterson v.
New York, we cut back on some of
the broader implications of
Mullaney. Although that case
contained, we acknowledged, "some language ... that ha[d] been
understood as perhaps construing the Due Process Clause to require
the prosecution to prove beyond a reasonable doubt any fact
affecting 'the degree of criminal culpability,'" we denied that we
"intend[ed] ... such far-reaching effect." 432 U. S., at 214-215,
n. 15. Accordingly, we upheld in
Patterson New York's law
casting upon the defendant the burden of proving as an "affirmative
defense" to seconddegree murder that he "'acted under the influence
of extreme emotional disturbance for which there was a reasonable
explanation or excuse,'" id., at 198-199, n. 2, which defense would
reduce his crime to manslaughter. We explained that "[p]roof of the
nonexistence of all affirmative defenses has never been
constitutionally required," id., at 210, and that the State need
not "prove beyond a reasonable doubt every fact, the existence or
nonexistence of which it is willing to recognize as an exculpatory
or mitigating circumstance affecting the degree of culpability or
the severity of the punishment."
Id., at 207. We cautioned,
however, that while our decision might "seem to permit state
legislatures to reallocate burdens of proof by labeling as
affirmative defenses at least some elements of the crimes now
defined in their statutes[,] ... there are obviously constitutional
limits beyond which the States may not go in this regard."
Id., at 210.
Finally, and most recently, in
McMillan v.
Pennsylvania, 477 U. S., at 81, we upheld Pennsylvania's
Mandatory Minimum Sentencing Act, which prescribed a mandatory
minimum sentence of five years upon a judge's finding by a
preponderance of the evidence that the defendant "visibly possessed
a firearm" during the commission of certain enumerated offenses
which all carried maximum sentences of
253
more than five years. We observed that "we [had] never attempted
to define precisely the constitutional limits noted in
Patterson, i.
e., the extent to which due process
forbids the reallocation or reduction of burdens of proof in
criminal cases," but explained that, whatever those limits,
Pennsylvania's law did not transgress them,
id., at 86,
primarily because it "neither alter[ed] the maximum penalty
for the crime committed nor create[d] a separate offense calling
for a separate penalty; it operate[d] solely to limit the
sentencing court's discretion in selecting a penalty within the
range already available to it without the special finding of
visible possession of a firearm," id., at 87-88.
The feebleness of the Court's contention that here there is no
serious constitutional doubt is evidenced by the degree to which it
must ignore or distort the analysis of
McMillan. As just
described, that opinion emphasized-and emphasized repeatedly-that
an increase of the maximum penalty was not at issue. Beyond that,
it specifically acknowledged that the outcome might have been
different (i.
e., the statute might have been
unconstitutional) if the maximum sentence had been affected:
"Petitioners' claim that visible possession under the
Pennsylvania statute is 'really' an element of the offenses for
which they are being punished-that Pennsylvania has in effect
defined a new set of upgraded felonies-would have at least more
superficial appeal if a finding of visible possession exposed them
to greater or additional punishment, cf. 18 U. S. C. § 2113(d)
(providing separate and greater punishment for bank robberies
accomplished through 'use of a dangerous weapon or device'), but it
does not." Id., at 88.
The opinion distinguished one of our own precedents on this very
ground, noting that the Colorado Sex Offenders Act invalidated in
Specht v.
Patterson, 386 U. S. 605 (1967),
increased a sex offender's sentence from a 10-year maximum
254
to an indefinite term up to and including life imprisonment. 477
U. S., at 88.
Despite all of that, the Court would have us believe that the
present statute's alteration of the maximum permissible
sentence-which it acknowledges is "the major difference between
this case and
McMillan," ante, at 244-militates
in favor
of, rather than
against, this statute's
constitutionality, because an increase of the minimum sentence
(rather than the permissible maximum) is more disadvantageous to
the defendant.
Ibid. That is certainly an arguable position
(it was argued, as the Court has the temerity to note, by the
dissent in
McMillan). But it is a position which
McMillan not only rejected, but
upon the converse of
which McMillan rested its judgment.
In addition to inverting the consequence of this distinction
(between statutes that prescribe a minimum sentence and those that
increase the permissible maximum sentence) the Court seeks to
minimize the importance of the distinction by characterizing it as
merely one of five factors relied on in
McMillan, and
asserting that the other four factors here are the same.
Ante, at 242-243. In fact, however,
McMillan did not
set forth any five-factor test; the Court selectively recruits
"factors" from various parts of the discussion. Its first factor,
for example, that "'the statute plainly does not transgress the
limits expressly set out in
Patterson,'" ante, at 242,
quoting
McMillan, 477 U. S, at 86-viz., that it does not
"discar[d] the presumption of innocence" or "relieve the
prosecution of its burden of proving guilt," id., at 87-merely
narrows the issue to the one before the Court, rather than giving
any clue to the resolution of that issue. It is no more a factor in
solving the constitutional problem before us than is the
observation that § 1326 is not an
ex post facto law and does
not effect an unreasonable search or seizure. The Court's second,
fourth, and part of its fifth "factors" are in fact all subparts of
the crucial third factor (the one that is absent here), since they
are all culled from the general dis-
255
cussion in
McMillan of how the Pennsylvania statute
simply limited a sentencing judge's discretion. We said that,
whereas in
Mullaney the State had imposed "'a differential
in sentencing ranging from a nominal fine to a mandatory life
sentence'" (the Court's "second" factor), Pennsylvania's law
"neither alter[ed] the maximum penalty for the crime committed [the
Court's 'third' factor] nor create[d] a separate offense calling
for a separate penalty [the Court's 'fourth' factor]; it operate[d]
solely to limit the sentencing court's discretion in selecting a
penalty within the range already available to it without the
special finding of visible possession of a firearm [the Court's
'third' factor] .... The statute gives no impression of having been
tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense [part of the Court's
'fifth' factor]." 477 U. S., at 87-88.
The Court's recruitment of "factors" is, as I have said,
selective. Omitted, for example, is
McMillan's statement
that "petitioners do not contend that the particular factor made
relevant [by the statute] ... has historically been treated 'in the
Anglo-American legal tradition' as requiring proof beyond a
reasonable doubt."
Id., at 90, quoting
Patterson, 432
U. S., at 226. Petitioner does make such an assertion in the
present case-correctly, as I shall discuss. But even with its
selective harvesting, the Court is incorrect in its assertion that
"most" of the "factors" it recites,
ante, at 243 (and in its
implication that all except the third of them) exist in the present
case as well. The second of them contrasted the consequence of the
fact assumed in
Mullaney (extension of the permissible
sentence from as little as a nominal fine to as much as a mandatory
life sentence) with the consequence of the fact at issue in
McMillan (no extension of the permissible sentence at all,
but merely a "limit[ation of] the sentencing court's discretion in
selecting a penalty within the range already available," 477 U. S.,
at 88). The present case resembles
Mullaney rather than
McMillan in this regard,
256
since the fact at issue increases the permissible sentence
tenfold. And the only significant part of the fifth "factor"that
the statute in
McMillan" 'dictated the precise weight to be
given [the statutory] factor,'"
ante, at 243, quoting
McMillan, supra, at 89-90-is likewise a point of difference
and
not of similarity.
But this parsing of various factors is really beside the point.
No one can read our
pre-McMillan cases, and especially
Mullaney (whose limits were adverted to in
Patterson
but never precisely described), without entertaining a serious
doubt as to whether the statute as interpreted by the Court in the
present case is constitutional. And no one can read
McMillan, our latest opinion on the point, without
perceiving that the determinative element in our validation of the
Pennsylvania statute was the fact that it merely limited the
sentencing judge's discretion within the range of penalty already
available,
rather than substantially increasing the
available sentence. And even more than that: No one can read
McMillan without learning that the Court was
open to
the argument that the Constitution requires a fact which does
increase the available sentence to be treated as an element of the
crime (such an argument, it said, would have "at least ...
superficial appeal," 477 U. S., at 88). If all that were not
enough, there must be added the fact that many State Supreme Courts
have concluded that a prior conviction which increases maximum
punishment must be treated as an element of the offense under
either their State Constitutions, see,
e. g., State v.
McClay, 146 Me. 104, 112, 78 A. 2d 347, 352 (1951);
Tuttle v.
Commonwealth, 68 Mass. 505, 506 (1854)
(prior conviction increasing maximum sentence must be set forth in
indictment);
State v.
Furth, 5 Wash. 2d 1, 11-19, 104
P. 2d 925, 930-933 (1940);
State ex rel. Lockmiller v.
Mayo, 88 Fla. 96, 98-99, 101 So. 228, 229 (1924);
Roberson v.
State, 362 P. 2d 1115, 1118-1119 (Okla.
Crim. App. 1961), or as a matter of common law, see,
e. g.,
People ex rel. Cosgriff v.
Craig, 195 N. Y. 190,
194-195, 88 N. E. 38, 39 (1909);
People
257
v.
McDonald, 233 Mich. 98, 102, 105,206 N. W. 516, 518,
519
(1925); State v.
Smith, 129 Iowa 709, 710-715,
106 N. W. 187, 188-189 (1906) ("By the uniform current of
authority, the fact of the prior convictions is to be taken as part
of the offense instantly charged, at least to the extent of
aggravating it and authorizing an increased punishment");
State v.
Pennye, 102 Ariz. 207, 208-209, 427 P. 2d
525, 526-527 (1967);
State v.
Waterhouse, 209 Ore.
424, 428-433, 307 P. 2d 327, 329-331
(1957); Robbins v.
State, 219 Ark. 376, 380-381, 242 S. W. 2d 640, 643 (1951);
State v.
Eichler, 248 Iowa 1267, 1270-1273, 83 N. W.
2d 576, 577-579 (1957).2
In the end, the Court cannot credibly argue that the question
whether a fact which increases maximum permissible punishment must
be found by a jury beyond a reasonable doubt is an easy one. That,
perhaps, is why the Court stresses, and stresses repeatedly, the
limited subject matter that § 1326(b) addresses-recidivism. It even
tries, with utter lack of logic, to limit its rejection of the fair
reading of
McMillan to recidivism cases. "For the reasons
just given," it says,
"and in light of the particular sentencing
factor at issue in this case-recidivism-we should take
2 It would not be, as the Court claims, "anomalous" to require
jury trial for a factor increasing the maximum sentence, "in light
of existing case law that permits a judge, rather than a jury, to
determine the existence of factors that can make a defendant
eligible for the death penalty .... "
Ante, at 247, citing
Walton v.
Arizona, 497 U. S. 639 (1990);
Hildwin v.
Florida, 490 U. S. 638 (1989)
(per curiam); and
Spaziano v.
Florida,
468 U. S. 447
(1984). Neither the cases cited, nor any other case, permits a
judge to determine the existence of a factor which makes a crime a
capital offense. What the cited cases hold is that, once a
jury has found the defendant
guilty of
all the
elements of an offense which carries as its maximum penalty the
sentence of death, it may be left to the judge to decide whether
that maximum penalty, rather than a lesser one, ought to be
imposed-even where that decision is constrained by a statutory
requirement that certain "aggravating factors" must exist. The
person who is charged with actions that expose him to the death
penalty has an absolute entitlement to jury trial on
all the
elements of the charge.
258
McMillan's statement [regarding the "superficial appeal"
the defendant's argument would have had if the factor at issue
increased his maximum sentence] to mean no more than it said, and
therefore not to make a determinative difference here."
Ante, at 245 (emphasis added). It is impossible to
understand how
McMillan could mean one thing in a later case
where recidivism is at issue, and something else in a later case
where some other sentencing factor is at issue. One might say, of
course, that recidivism
should be an exception to the
general rule set forth in
McMillan-but that more forthright
characterization would display how doubtful the constitutional
question is in light of our prior case law.
In any event, there is no rational basis for
making
recidivism an exception. The Court is of the view that recidivism
need not be proved to a jury beyond a reasonable doubt (a view
that, as I shall discuss, is precisely contrary to the common-law
tradition) because it "'goes to the punishment only.''' It relies
for this conclusion upon our opinion in
Graham v.
West
Virginia, 224 U.
S. 616 (1912). See
ante, at 243, quoting
Graham,
supra, at 624; see also
ante, at 247. The
holding
of
Graham provides no support for the Court's position. It
upheld against due process and double jeopardy objections a state
recidivism law under which a defendant's prior convictions were
charged and tried in a separate proceeding after he was convicted
of the underlying offense. As the Court notes,
ante, at 243,
the prior convictions were not charged in the same indictment as
the underlying offense; but they
were charged in an
"information" before the defendant was tried for the prior
convictions, and, more importantly, the law explicitly preserved
his right to a jury determination on the recidivism question. See
Graham, supra, at 622-623; see also
Oyler v.
Boles, 368 U.
S. 448, 453 (1962) (same). It is true, however, that if the
basis for
Graham's holding were accepted, one would
have to conclude that recidivism need not be tried to the jury and
found beyond a reasonable doubt. The essence of
Graham's
reason-
259
ing was that in the recidivism proceeding the defendant "was not
held to answer for an offense," 224 U. S., at 624, since the
recidivism charge" 'goes to the punishment only,'"
ibid.,
quoting
McDonald v.
Massachusetts, 180 U. S. 311, 313
(1901).
But that basis for dispensing with the protections of jury trial
and findings beyond a reasonable doubt was explicitly rejected in
Mullaney, which
accorded these protections to facts
that were "not general elements of the crime of felonious homicide
... [but bore] only on the appropriate punishment category," 421 U.
S., at 699. Whatever else
Mullaney stands for, it certainly
stands for the proposition that what
Graham used as the line
of demarcation for double jeopardy and some due process purposes
(the matter "goes only to the punishment") is
not the line
of demarcation for purposes of the right to jury trial and to proof
beyond a reasonable doubt. So also does
McMillan, which even
while narrowing
Mullaney made it very clear that the mere
fact that a certain finding "goes only to the penalty" does not end
the inquiry. The Court is certainly correct that the distinctive
treatment of recidivism determinations for double jeopardy purposes
takes some explaining; but it takes some explaining for the Court
no less than for me. And the explanation assuredly is
not
(what the Court apparently suggests) that recidivism is never an
element of the crime. It does much less violence to our
jurisprudence, and to the traditional practice of requiring a jury
finding of recidivism beyond a reasonable doubt, to explain
Graham as a recidivism exception to the normal double
jeopardy rule that conviction of a lesser included offense bars
later trial for the greater crime. Our double jeopardy law, after
all, is based upon traditional American and English practice, see
United States v.
Dixon, 509 U. S. 688, 704
(1993);
United States v.
Wilson, 420 U. S. 332, 339-344
(1975), and that practice has allowed recidivism to be charged and
tried separately, see
Spencer v.
Texas, 385 U. S. 554, 566-567
(1967);
Graham, supra, at 623,
260
625-626, 631;
McDonald, supra, at 312-313. It has
not allowed recidivism to be determined by a judge as more
likely than not.
While I have given many arguments supporting the position that
the Constitution requires the recidivism finding in this case to be
made by a jury beyond a reasonable doubt, I do not endorse that
position as necessarily correct. Indeed, that would defeat my whole
purpose, which is to honor the practice of not deciding doubtful
constitutional questions unnecessarily. What I have tried to
establish-and all that I need to establish-is that on the basis of
our jurisprudence to date, the answer to the constitutional
question is not clear. It is the Court's burden, on the other hand,
to establish that its constitutional answer shines forth clearly
from our cases. That burden simply cannot be sustained. I think it
beyond question that there was, until today's unnecessary
resolution of the point, "serious doubt" whether the Constitution
permits a defendant's sentencing exposure to be increased tenfold
on the basis of a fact that is not charged, tried to a jury, and
found beyond a reasonable doubt. If the Court wishes to abandon the
doctrine of constitutional doubt, it should do so forthrightly,
rather than by declaring certainty on a point that is clouded in
doubt.
II
The Court contends that the doctrine of constitutional doubt is
also inapplicable because § 1326 is not fairly susceptible of the
construction which avoids the constitutional problem-i.
e.,
the construction whereby subsection (b)(2) sets forth a separate
criminal offense.
Ante, at 238. The Court begins its
statutory analysis not by examining the text of § 1326, but by
demonstrating that the "subject matter [of the statute]-prior
commission of a serious crime-is as typical a sentencing factor as
one might imagine."
Ante, at 230. That is eminently
demonstrable, sounds powerfully good, but in fact proves nothing at
all. It is certainly true that a
261
judge (whether or not bound by the Federal Sentencing
Guidelines) is likely to sentence nearer the maximum permitted for
the offense if the defendant is a repeat offender. But the same can
be said of many, perhaps most, factors that are used to define
aggravated offenses. For example, judges will "typically" sentence
nearer the maximum that a statute allows if the crime of conviction
is committed with a firearm, or in the course of another felony;
but that in no way suggests that armed robbery and felony murder
are sentencing enhancements rather than separate crimes.
The
relevant question for present purposes is not whether
prior felony conviction is "typically" used as a sentencing factor,
but rather whether, in statutes that provide higher maximum
sentences for crimes committed by convicted felons, prior
conviction is "typically" treated as a mere sentence enhancement or
rather as an element of a separate offense. The answer to that
question is the latter. That was the rule at common law, and was
the near-uniform practice among the States at the time of the most
recent study I am aware of. See Note, Recidivist Procedures, 40 N.
Y. U. L. Rev. 332, 333-334 (1965); Note, The Pleading and Proof of
Prior Convictions in Habitual Criminal Prosecutions, 33 N. Y. U. L.
Rev. 210, 215-216 (1958). At common law, the fact of prior
convictions had to be charged in the same indictment charging the
underlying crime, and submitted to the jury for determination along
with that crime. See,
e. g.,
Spencer v.
Texas,
supra, at 566;
Massey v.
United States, 281 F.
293, 297 (CA8 1922);
Singer v.
United States,
278 F.4d
5, 420 (CA3 1922);
People v.
Sickles, 156 N. Y.
541, 545, 51 N. E. 288, 289 (1898). While several States later
altered this procedure by providing a separate proceeding for the
determination of prior convictions, at least as late as 1965 all
but eight retained the defendant's right to a jury determination on
this issue. See Note, 40 N. Y. U. L. Rev., at 333-334, 347. I am at
a loss to explain the Court's assertion that it has "found no
statute that clearly makes recidivism an offense
262
element" added to another crime,
ante, at 230. There are
many such.3
It is interesting that the Court drags the red herring of
recidivism through both parts of its opinion-the "constitutional
doubt" part and the "statutory interpretation" part alike. As just
discussed, logic demonstrates that the nature of that charge (the
fact that it is a "typical" sentencing factor) has nothing to do
with what this statute means. And as discussed earlier, the text
and reasoning of McMillan, and of the cases McMillan distinguishes,
provide no basis for saying that recidivism is exempt from the
Court's clear acknowledgment that taking away from the jury facts
that increase the maximum sentence is constitutionally
questionable. One wonders what state courts, and lower federal
courts, are supposed to do with today's mysterious utterances. Are
they to pursue logic, and conclude that all ambiguous statutes
adding punishment for factors accompanying the principal offense
are mere enhancements, or are they illogically to give this special
treatment only to recidivism? Are they to deem the reasoning of
McMillan superseded for all cases, or does it remain an open and
doubtful question, for all cases except those involving recidivism,
whether statutory maximums can be increased without the benefit of
jury trial? Whatever else one may say about today's opinion, there
is no doubt that it has brought to this area of the law more
confusion than clarification.
Passing over the red herring, let me turn now to the statute at
issue-§ 1326 as it stood when petitioner was con-
3 For federal statutes of this sort, see,
e. g., 15 U. S.
C. § 1264(a), 18 U. S. C. § 924(c), and § 2114(a). In each of these
provisions, recidivism is recited in a list of sentence-increasing
aggravators that include, for example, intent to defraud or mislead
(15 U. S. C. § 1264(a)), use of a firearm that is a machine gun, or
a destructive device, or that is equipped with a silencer (18 U. S.
C. § 924(c)), and wounding or threatening life with a dangerous
weapon (§ 2114(a)). It would do violence to the text to treat
recidivism as a mere enhancement while treating the parallel
provisions as aggravated offenses, which they obviously are.
263
victed. The author of today's opinion for the Court once agreed
that the "language and structure" of this enactment "are subject to
two plausible readings," one of them being that recidivism
constitutes a separate offense.
United States v.
Forbes, 16 F.3d
1294, 1298 (CA1 1994) (opinion of Coffin, J., joined by Breyer,
C. J.).4 This would surely be enough to satisfy the requirement
expressed by Justice Holmes, see
United States v.
Jin
Fuey Moy, 241 U.
S. 394, 401 (1916), and approved by the Court,
ante, at
237-238, that the constitutional-doubt-avoiding construction be
"fairly possible." Today, however, the Court relegates statutory
language and structure to merely two of five "factors" that "help
courts determine a statute's objectives and thereby illuminate its
text,"
ante, at 228.
The statutory text reads, in relevant part, as follows:
"Reentry of deported alien; criminal penalties for reentry of
certain deported aliens
"(a) Subject to subsection (b) of this section, any alien who
[has been deported and thereafter reenters the United States] ...
shall be fined under title 18, or imprisoned not more than 2 years,
or both.
"(b) Notwithstanding subsection (a) of this section, in the case
of any alien described in such subsection-
"(1) whose deportation was subsequent to a conviction for
commission of three or more misdemeanors involving drugs, crimes
against the person, or both, or a felony (other than an aggravated
felony), such alien shall be fined under title 18, imprisoned not
more than 10 years, or both; or
"(2) whose deportation was subsequent to a conviction for
commission of an aggravated felony, such alien
4 The statutory text at issue in
Forbes was in all
relevant respects identical to the statute before us here, except
that the years of imprisonment for the offenses were less; they
were increased by a 1994 amendment, see § 130001(b), 108 Stat.
2023.
264
shall be fined under such title, imprisoned not more than 20
years, or both." 8 U. S. C. § 1326(b).
One is struck at once by the parallel structure of subsections
(a) and (b).
Neither subsection says that the individual it
describes "shall be guilty of a felony," and
both
subsections say that the individuals they describe "shall be fined
under title 18, or imprisoned not more than [2, 10, or 20] years."
If this suffices to define a substantive offense in subsection (a)
(as all agree it does), it is hard to see why it would not define a
substantive offense in each paragraph of subsection (b) as well.
Cf., for example, 21 U. S. C. § 841, which has a subsection (a)
entitled "Unlawful acts," and a subsection (b) entitled
"Penalties."
The opening phrase of subsection (b) certainly does not indicate
that what follows merely supplements or enhances the penalty
provision of subsection (a); what follows is to apply
"notwithstanding" all of subsection (a), i.
e., "in spite
of" or "without prevention or obstruction from or by" subsection
(a). See,
e. g., Webster's New International Dictionary 1669
(2d ed. 1949). The next phrase ("in the case of any alien described
in ... subsection [(a)]") imports by reference the substantive acts
attributed to the hypothetical alien (deportation and unauthorized
reentry) in subsection (a). Significantly, this phrase does not
apply subsection (b) to any alien "convicted under" subsection
(a)-which is what one would expect if the provision was merely
increasing the penalty for certain subsection (a) convictions. See,
e. g.,
United States v.
Davis, 801 F.2d
754, 755-756 (CA5 1986) (noting that "predicat[ing] punishment
upon conviction" of another offense is one of the "common indicia
of sentence-enhancement provisions"). Instead, subsection (b)
applies to an alien "described in" subsection (a)-one who has been
deported and has reentered illegally. And finally, subsection (a)'s
provision that it applies "[s]ubject to subsection (b)" means that
subsection (a) is inapplicable to an alien covered by subsection
(b), just as subsection (b) applies "not-
265
withstanding" that the alien would otherwise be covered by
subsection (a).5
The Court relies on an earlier version of § 1326 to support its
interpretation of the statute in its current form.
Ante, at
232. While I agree that such statutory history is a legitimate tool
of construction, the statutory history of § 1326 does not support,
but rather undermines, the Court's interpretation. That earlier
version contained a subsection (a) that, in addition to setting
forth penalties (as did the subparts of subsection (b)), contained
the phrase (which the subparts of subsection (b) did not) "shall be
guilty of a felony, and upon conviction thereof .... " With such a
formulation, of course, it would be easier to conclude that
subsection (a) defines the crime and sets forth the basic penalty,
and subsection (b) sets forth merely penalty enhancements. But if
that was what the additional language in subsection (a) of the 1988
statute connoted, then what was the
elimination of that
additional language (in the 1990 version of the statute at issue
here) meant to achieve? See § 543(b)(3), 104 Stat. 5059. The more
strongly the "shall be guilty of a felony" language suggests that
subsection (b) of the 1988 statute contained only enhancements, the
more strongly the otherwise inexplicable elimination of that
language sug-
5 The Court contends that treating subsection (b) as
establishing substantive offenses renders the "notwithstanding" and
"subject to" provisions redundant, because even without them our
lesser included-offense jurisprudence would prevent a defendant
from being convicted under both subsections (a) and (b).
Ante, at 231. Redundancy, however, consists of the annoying
practice of saying the same thing twice, not the sensible practice
of saying once, with clarity and conciseness, what the law
provides. The author of today's opinion once agreed that "[t]he
fact that each subsection makes reference to the other is simply
the logical way of indicating the relationship between the arguably
two separate crimes."
United States v.
Forbes,
16 F.3d
1294, 1298
(CA1 1994). But if this be redundancy, it is
redundancy that the Court's alternative reading does not
cure-unless one believes that, without the "notwithstanding" and
"subject to" language, our interpretive jurisprudence would permit
the subsection (a) penalty to be added to the subsection (b)
penalties.
266
gests that subsection (b) of the 1990 statute was meant to be
parallel with subsection (a)-i.
e., that both
subsections were meant to set forth not merely penalties but also
offenses.6
After considering the subject matter and statutory language, the
third factor the Court considers in arriving at its determination
that this statute can only be read as a sentencing enhancement is
the title of the 1988 amendment that added subsection (b)(2):
"Criminal Penalties for Reentry of Certain Deported Aliens." See §
7345, 102 Stat. 4471, cited
ante, at 234. Of course, this
title pertains to a subsection (b)(2) which, unlike the (b)(2)
under which petitioner was convicted, was not parallel with the
preceding subsection (a). But even disregarding that, the title of
the amendment proves nothing at all. While "Criminal Penalties for
Reentry" might normally be more suggestive of an enhancement than
of a separate offense, there is good reason to believe it imports
no such suggestion here. For the very next provision of the same
enactment, which adjusts the
substantive requirements for
the crime of aiding and abetting the unlawful entry of an alien, is
entitled "Criminal Penalties for Aiding or Assisting Certain Aliens
to Enter the United States." See § 7346, 102 Stat. 4471. Evidently,
new substantive offenses that were penalized were simply entitled
"Criminal Penalties" for the relevant offense. Moreover,
6 Immediately after stressing the significance of the 1988
version of § 1326(a), the Court dismisses the 1990 amendment that
eliminated the 1988 language upon which it relies, as a
"housekeeping measure" by which "Congress [did not] inten[d] to
change, or to clarify, the fundamental relationship between"
subsections (a) and (b).
Ante, at 234. The Court offers no
support for this confident characterization, unless it is the
mistaken assumption that statutory changes or clarifications
unconfirmed by legislative history are inoperative. "Suffice it to
say that legislative history need not confirm the details of
changes in the law effected by statutory language before we will
interpret that language according to its natural meaning."
Morales v.
Trans World Airlines, Inc., 504 U. S. 374, 385, n.2
(1992).
267
the 1988 amendment kept the original title of § 1326 ("Reentry
of Deported Alien") intact, leaving it to apply to both subsection
(a) and subsection (b). See § 7345,
supra; § 276, 66 Stat.
229.
The Court's fourth factor leading it to conclude that this
statute cannot reasonably be construed as establishing substantive
offenses is legislative history. See
ante, at 234. It is,
again, the legislative history of the provision as it existed in
1988, before subsection (a) was stripped of the language "shall be
guilty of a felony," thereby making subsections (a) and (b)
parallel. Even so, it is of no help to the Court's case. The stray
statements that the Court culls from the Congressional Record prove
only that the new subsection (b) was thought to increase penalties
for unlawful reentry. But there is no dispute that it does that!
The critical question is whether it does it by adding penalties to
the subsection (a) offense, or by creating additional, more
severely punished, offenses. That technical point is not alluded to
in any of the remarks the Court recites.
The Court's fifth and last argument in support of its
interpretation of the statute is the contention that "the contrary
interpretation ... risks unfairness,"
ibid., because it
would require bringing the existence of the prior felony conviction
to the attention of the jury. But it is also "unfair," of course,
to deprive the defendant of a jury determination (and a
beyond-a-reasonable-doubt burden of proof) on the critical question
of the prior conviction. This Court's own assessment of which of
those disadvantages is the greater can be of relevance here only
insofar as we can presume that that perception would have been
shared by the enacting Congress. We usually presume, however, not
that an earlier Congress agreed with our current policy judgments,
but rather that it agreed with the disposition provided by
traditional practice or the common law. See
United States v.
Texas, 507 U.
S. 529, 534 (1993);
Astoria Fed. Sav. &
Loan
Assn. v.
Solimino, 501 U. S. 104, 108
(1991);
Norfolk Redevel-
268
opment and Housing Authority v.
Chesapeake &
Potomac Telephone Co. of Va., 464 U. S. 30, 35 (1983);
Morissette v.
United States, 342 U. S. 246, 263
(1952). As noted earlier, the Court's hostility to jury
determination of prior convictions is quite simply at odds with the
manner in which recidivism laws have historically been treated in
this country.
Moreover, even if we were free to resolve this matter according
to our current views of what is fair, the Court's judgment that
avoiding jury "infection" is more important than affording a jury
verdict (beyond a reasonable doubt) does not seem to me sound. The
Court is not correct, to begin with, that the fact of prior
conviction is "almost never contested,"
ante, at 235,
particularly in unlawful-entry cases. That is clear from the very
legislative history of the present statute. Senator Chiles
explained that "identifying and prosecuting ... illegal alien
felons is a long and complex process" because "[i]t is not uncommon
for an alien who has committed a certain felony to pay his bond and
walk, only to be apprehended for a similar crime in the next county
but with a new name and identification." 133 Congo Rec. 8771
(1987). He went on to describe two specific aliens, one from whom
police "seized 3 passports issued to him in 3 different names, 11
drivers licenses, immigration cards and numerous firearms and
stolen property," and the other on whom immigration officials had
"5 alien files ... with 13 aliases, different birth dates and
different social security cards."
Id., at 8771, 8772. He
said that "these aliens [were] not exceptions but rather common
amongst the 100,000 illegal alien felons in the United States."
Id., at 8772. Representative Smith stated that aliens
arrested for felonies "often are able to pay expensive bonds and
disappear under a new identity often to reappear in court with a
different name and a new offense. In some cases, they may return to
their native lands and reenter the United States with new names and
papers but committing the same crimes."
Id., at 28840. And
on the other side of the ledger, I doubt whether "infection" of the
jury
269
with knowledge of the prior crime is a serious problem. See,
e. g., Spencer, 385 U. S., at 561 ("The defendants'
interests [in keeping prejudicial prior convictions from the jury]
are protected by limiting instructions and by the discretion
residing with the trial judge to limit or forbid the admission of
particularly prejudicial evidence even though admissible under an
accepted rule of evidence" (citation omitted));
Old Chiefv.
United States,
519 U.
S. 172, 191 (1997) (it is an abuse of discretion under Federal
Rule of Evidence 403 to disallow defendant's stipulation to prior
felony convictions where such convictions are an element of the
offense); cf. Brief for National Association of Criminal Defense
Lawyers as
Amicus Curiae 30 ("In 1996, 98.2% of all Section
1326 defendants pleaded guilty"). If it is a problem, however,
there are legislative and even judicial means for dealing with it,
short of what today's decision does: taking the matter away from
the jury in all cases. See Note, 40 N. Y. U. L. Rev., at 333-334
(describing commonly used procedures under which defendant's right
to a jury is invoked only "[i]f [he] denies the existence of prior
convictions or stands mute");
Spencer, supra, at 567
(describing the English rule, under which the indictment alleges
both the substantive offense and prior conviction, but the jury is
not charged on the prior conviction until after it convicts the
defendant of the substantive offense).
In sum, I find none of the four nontextual factors relied upon
by the Court to support its interpretation ("typicality" of
recidivism as a sentencing factor; titles; legislative history; and
risk of unfairness) persuasive. What does seem to me significant,
however, is a related statutory provision, introduced by a 1996
amendment, which explicitly refers to subsection (b)(2) as setting
forth "offenses." See § 334, 110 Stat. 3009-635 (instructing United
States Sentencing Commission to amend sentencing guidelines "for
offenses under ... 1326(b)"). This later amendment can of course
not cause subsection (b)(2) to have meant, at the time of
petitioner's conviction, something different from what it then
270
said. But Congress's expressed understanding that subsection (b)
creates separate offenses is surely evidence that it is "fairly
possible" to read the provision that way.7
I emphasize (to conclude this part of the discussion) that
"fairly possible" is all that needs to be established. The doctrine
of constitutional doubt does not require that the problem-avoiding
construction be the
preferable one-the one the Court would
adopt in any event. Such a standard would deprive the doctrine of
all function. "Adopt the interpretation that avoids the
constitutional doubt if that is the right one" produces precisely
the same result as "adopt the right interpretation." Rather, the
doctrine of constitutional doubt comes into play when the statute
is "susceptible of" the problem-avoiding interpretation,
Delaware &
Hudson Co., 213 U. S., at 408-when
that interpretation is
reasonable, though not necessarily
the best. I think it quite impossible to maintain that this
standard is not met by the interpretation of subsection (b) which
regards it as creating separate offenses.
***
For the foregoing reasons, I think we must interpret the statute
before us here as establishing a separate offense rather than a
sentence enhancement. It can be argued that, once the
constitutional doubts that require this course have been resolved,
statutes no less ambiguous than the one before us here will be
interpretable as sentence enhancements,
7 The Court is incorrect in its contention that the
effective-date provision of the 1996 amendments reflects the
opposite congressional understanding. See
ante, at 237. That
provision states that the amendments "apply under [subsection (b)]
... only to violations of [subsection (a)]," occurring on or after
the date of enactment. § 321(c), 110 Stat. 3009-628. There is no
dispute, of course, that if subsection (b) creates separate
offenses, one of the elements of the separate offenses is the
lesser offense set forth in subsection (a). The quoted language is
the clearest and simplest way of saying that
that element of
the subsection (b) offenses must have occurred after the date of
enactment in order for the amendments to be applicable.
271
so that not much will have been achieved. That begs the
question, of course, as to how the constitutional doubt will be
resolved. Moreover, where the doctrine of constitutional doubt does
not apply, the same result may be dictated by the rule of lenity,
which would preserve rather than destroy the criminal defendant's
right to jury findings beyond a reasonable doubt. See,
e. g.,
People ex rel. Cosgriff v.
Craig, 195 N. Y., at 197, 88
N. E., at 40 ("It is unnecessary in this case to decide how great
punishment the legislature may constitutionally authorize Courts of
Special Sessions to impose on a conviction without a common-law
jury. It is sufficient to say that in cases of doubtful
construction or of conflicting statutory provisions, that
interpretation should be given which best protects the rights of a
person charged with an offense, to a trial according to the common
law"). Whichever doctrine is applied for the purpose, it seems to
me a sound principle that whenever Congress wishes a fact to
increase the maximum sentence without altering the substantive
offense, it must make that intention unambiguously clear.
Accordingly, I would find that § 1326(b)(2) establishes a separate
offense, and would reverse the judgment below.
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