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
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 F.2d 943,
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.
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:
"(1) has been . . . deported . . . , and thereafter
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
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 (CA11 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
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 "subject
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):
"(1) has been . . . deported . . . , and thereafter
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),
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 Cong. 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 Cong. 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 Cong. Rec. 28840— 28841 (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
In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.
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
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
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
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
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."
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 aforethought,"
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 factor— the 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'
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
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 conclusion
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 minimum
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)
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 Wn.2d 736,
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.
We mention one final point. Petitioner makes no separate, subsidiary, standard of proof claims with respect to his
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
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.
"[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.
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 different
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
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:
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
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 discussion
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,
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 Wn.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
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
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 reasoning
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 . . . [butbore] 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,
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.
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
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. 415, 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
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 convicted.
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 "notwithstanding"
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 suggests
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,
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-
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 Cong. 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
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
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,