Hugo Roman ALMENDAREZ-TORRES, Petitioner,

Supreme Court of the United States
118 S. Ct. 1219 (1998)

 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."  § 1326(b)(2).  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 require the Government to charge the factor that it mentions, an earlier conviction, in the indictment.


 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, 94 S.Ct. 2887, 2907- 2908, 41 L.Ed.2d 590 (1974).  He added that his indictment had not mentioned [p. 1223] 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.

* * *


 An indictment must set forth each element of the crime that it charges.  Hamling v. United States, supra, at 117, 94 S.Ct., at 2907-2908.  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, 106 S.Ct. 2411, 2415-2419, 91 L.Ed.2d 67 (1986), the question of which factors are which is normally a matter for Congress.  See Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 1796, 128 L.Ed.2d 608 (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, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434 (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.  See, e.g., United States v. Wells, 519 U.S. ----, ----, 117 S.Ct. 921, ---, 137 L.Ed.2d 107 (1997);  Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411-2412, 85 L.Ed.2d 764 (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.
[p. 1224] "(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.


 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 to the question presented--whether Congress intended subsection (b)(2) to set forth a sentencing factor or a separate crime--is reasonably clear. [The answer is yes.]

* * *


 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, 94 S.Ct., at 2907-2908.  The Government must prove that "element" to a jury.  See, e.g., Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968).  And the Government must prove the "element" beyond a reasonable doubt.  See, e.g., Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977).  We cannot find sufficient support, [p. 1229] 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."  In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).  But Winship, the case in which the Court set forth this proposition of constitutional law, 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, 95 S.Ct. 1881, 44 L.Ed.2d 508  (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, 95 S.Ct., at 1884.  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, 95 S.Ct., at 1889.  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, 95 S.Ct., at 1892.  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," which was itself in turn "part of" the statute's definition of "homicide," the crime in question.  Patterson, 432 U.S., at 215-216, 97 S.Ct., at 2329- 2330.  (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, 97 S.Ct., at 2330.)  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, 97 S.Ct., at 2329 (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, 97 S.Ct., at 2324-2325.  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., 205-206, 215, 97 S.Ct., at 2324-2325, 2329.

 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 the 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 effects sentencing--recidivism.

 [p. 1230] Nor does Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (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' from the usual sentencing proceeding." McMillan v. Pennsylvania, 477 U.S., at 89, 106 S.Ct., at 2417.  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, supra.  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." 477 U.S., at 84, 106 S.Ct., at 2415 (quoting Patterson v. New York, supra, at 214, 97 S.Ct., at 2329).  It said, citing Patterson, that "the state legislature's definition of the elements of the offense is usually dispositive."  477 U.S., at 85, 106 S.Ct., at 2415.  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, 106 S.Ct., at 2416.  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," id., at 86, 106 S.Ct., at 2416;  (2) that the defendant (unlike Mullaney 's defendant) did not face " 'a differential in sentencing ranging from a nominal fine to a mandatory life sentence,' " 477 U.S., at 87, 106 S.Ct., at 2417 (quoting Mullaney, 421 U.S., at 700, 95 S.Ct., at 1890);  (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, 106 S.Ct., at 2417;  (4) that the statute did not "creat[e] a separate offense calling for a separate penalty," id., at 88, 106 S.Ct., at 2417;  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, 106 S.Ct., at 2417, 2418.

 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," 477 U.S., at 87, 106 S.Ct., at 2417;  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, 113 S.Ct. 517, 521-522, 121 L.Ed.2d 391 (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 [p. 1231] 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 which 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, 32 S.Ct. 583, 585-86, 56 L.Ed. 917 (1912).  That conclusion 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, 32 S.Ct., at 588 (emphasis added).  The Court has not deviated from this view.  See Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503-504, 7 L.Ed.2d 446 (1962) (due process does not require advance notice that trial for substantive offense will be followed by accusation that the defendant is an habitual offender);  Parke, supra, at 27, 113 S.Ct., at 522 ("[A] charge under a recidivism statute does not state a separate offense, but goes to punishment only").  And, as we said before, infra, at 5-6, 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 (C.A.D.C.1987) (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, 32 S.Ct., at 587-588.

 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 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."  McMillan, supra, at 95, 106 S.Ct., at 2421.  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 1236.  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, 106 S.Ct., at 2417 (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 that 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 [p. 1232] boards) have typically exercised their discretion within broad statutory ranges.  See, e.g., supra, at 1224, 1226 (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) (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 well-established 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, 106 S.Ct., at 2416-2417, 2417-2418.

 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 (C.A.8 1922);  Singer v. United States, 278 F. 415, 420 (C.A.3 1922);  People v. Sickles, 156 N.Y. 541, 51 N.E. 288, 289 (N.Y.1898);  see also post, at 9-10 (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, 87 S.Ct., at 654-55 ("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 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, 110 S.Ct. 3047, 3053-3054, 111 L.Ed.2d 511 (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, 109 S.Ct. 2055, 2056-2057, 104 L.Ed.2d 728 (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, 104 S.Ct. 3154, 3164-3165, 82 L.Ed.2d 340 (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, 32 S.Ct., at 585- 586.

 [p. 1233] For these reasons, we reject petitioner's constitutional claim that his recidivism must be treated as an element of his offense.


* * *

 The judgment of the Court of Appeals is


 Justice SCALIA, with whom Justice STEVENS, Justice SOUTER, and Justice GINSBURG join, dissenting.

 Because Hugo Roman Almendarez-Torres illegally re-entered 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 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, 106 S.Ct. 2411, 91 L.Ed.2d 67 (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, 106 S.Ct., at 2413, n. 1 (quoting 42 Pa. Cons.Stat. § 9712 (1982)).  In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it provided that determinations of criminal action in juvenile cases " 'must be based on a preponderance of the evidence,' " id., at 360, 90 S.Ct., at 1070 (quoting N.Y. Family Court Act § 744(b)).  In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the statute provided that extreme emotional disturbance " 'is an affirmative defense,' " id., at 198, n. 2, 97 S.Ct., at 2321, n. 2 (quoting N.Y. Penal Law § 125.25 (McKinney 1975)).  And in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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, 95 S.Ct., at 1884-1885 (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 re-entry simpliciter (§ 1326(a)) and illegal reentry after conviction of an [p. 1234] 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., supra, at 408, 29 S.Ct., at 536.  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, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (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, 29 S.Ct., at 535.  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.

 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 reasonable doubt of every fact necessary to constitute the crime with which he is charged," 397 U.S., at 364, 90 S.Ct., at 1072-1073, 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, 90 S.Ct., at 1070.

 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, 95 S.Ct., at 1889-1890.  Nonetheless, we rejected this distinction between guilt and punishment.  "If Winship," we said, "were limited to those facts that constitute a crime as defined by [p. 1235] 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 crimes, characterizing them as factors that bear solely on the extent of punishment."  Id., at 697-698, 95 S.Ct., at 1889.

 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, 97 S.Ct., at 2329, n. 15.  Accordingly, we upheld in Patterson New York's law casting upon the defendant the burden of proving as an "affirmative defense" to second- degree 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, 97 S.Ct., at 2320-2321, 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," 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, 97 S.Ct., at 2325.  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[,] ... [t]here are obviously constitutional limits beyond which the States may not go in this regard." Id., at 210, 97 S.Ct., at 2327.

 Finally, and most recently, in McMillan v. Pennsylvania, 477 U.S., at 81, 106 S.Ct., at 2415, 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 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, 106 S.Ct., at 2416, 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, 106 S.Ct., at 2417.

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 . . . . 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, 106 S.Ct., at 2417).  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 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 authority, the fact of 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 Or. 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).

 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 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 what it said, and therefore not to make a determinative difference here." [p. 1238] Ante, at 1231 (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.

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 [p. 1239] 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.

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