523 U.S. 224 (1998)
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 1326.1
In December 1995, Almendarez-Torres entered a plea of guilty.2 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.3
In March 1996, the District Court held a sentencing hearing.4 Almendarez-Torres argued that his indictment had not mentioned his earlier aggravated felony convictions and that the court therefore could not sentence him to more than two years' imprisonment.5 The District Court rejected this argument, found applicable a Sentencing Guideline range of 77 to 96 months, and imposed a sentence of 85 months' imprisonment.6
On appeal the Fifth Circuit rejected Almendarez-Torres's argument and affirmed the sentence.7 Like seven other circuits, the Fifth Circuit held that subsection (b)(2) is a penalty provision. It simply permits a sentencing judge to impose a higher sentence when the unlawfully returning alien also has a record of prior convictions. The Ninth Circuit had reached the opposite conclusion.8 The Supreme Court granted certiorari to resolve the difference among the circuits.9
Whether subsection (b)(2) of 8 U.S.C. § 1326 defines a separate criminal offense or instead constitutes a sentencing enhancement provision?10
Interpretation of whether a statutory provision defines a separate crime or a sentencing factor turns on congressional intent as revealed by the statute's language, structure, subject matter, context, and history.11 Recidivism is a traditional sentencing factor that Congress has not made an element where the underlying conduct is independently unlawful.12
No. The statutory language employs phrases such as 'subject to subsection (b)' in subsection (a) and 'notwithstanding subsection (a)' in subsection (b) to signal adjusted penalties rather than distinct offenses.13 The 1988 amendment's title and history address only the creation of new penalties for recidivists.14 The legislative history contains no indication that Congress meant to create a new substantive crime.15 In the established facts, the September 1995 indictment charged only the basic violation of having been found in the United States after deportation without the Attorney General's consent.16
In December 1995 Almendarez-Torres pleaded guilty and admitted the three prior aggravated felony convictions at the plea hearing.17 In March 1996 the District Court applied the enhancement at sentencing after the Fifth Circuit and seven other circuits had uniformly treated subsection (b)(2) as a penalty provision.18
Subsection (b)(2) constitutes a sentencing enhancement provision rather than a separate criminal offense.19
Related opinions on this issue
Joined by Stevens, Souter, And Ginsburg, Jj.
Justice Scalia dissented on the ground that the parallel structure of subsections (a) and (b), together with the 1990 elimination of the phrase 'shall be guilty of a felony' from subsection (a), renders the statute fairly susceptible of a reading that treats subsection (b)(2) as defining a separate offense.20 This reading would avoid the constitutional question whether a fact increasing the maximum sentence must be charged and proved to a jury.21 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.22
Whether the Constitution requires that a prior aggravated felony conviction used to increase the statutory maximum sentence be charged in the indictment and proved to a jury beyond a reasonable doubt?23
The Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.24 Yet recidivism is a traditional sentencing factor that need not be alleged in the indictment or proved to a jury.25 Precedents such as McMillan v. Pennsylvania and Graham v. West Virginia confirm that prior convictions may increase the authorized maximum without becoming elements.26
No. Although the prior convictions raised the statutory maximum from two to twenty years, the established facts show that Almendarez-Torres admitted the three aggravated felony convictions at his December 1995 plea hearing.27 The District Court applied the enhancement at the March 1996 sentencing hearing without jury involvement.28 The tradition of treating recidivism as going only to punishment permits judicial determination.29 The differences from McMillan do not alter the constitutional result because recidivism remains the most traditional basis for enhancing a sentence.30
The Constitution does not require the prior aggravated felony conviction to be charged in the indictment or proved to a jury beyond a reasonable doubt.31
Related opinions on this issue
Joined by Stevens, Souter, And Ginsburg, Jj.
Justice Scalia dissented.32 He argued that McMillan and earlier cases such as Mullaney v. Wilbur leave grave doubt whether the Constitution permits a judge to find by a mere preponderance a fact that increases the maximum permissible sentence tenfold.33 The doctrine of constitutional doubt therefore requires reading subsection (b)(2) as a separate offense so that the prior conviction must be charged and proved to a jury.34
Petitioners' claim that visible possession under the Pennsylvania statute is really an element of the offenses for which they are being punished would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment.35