argued october decided march held subsection penalty provision simply authorizes enhanced sentence since create separate crime government required charge fact earlier conviction indictment pp indictment must set forth element crime charges hamling need set forth factors relevant sentencing offender found guilty charged crime within limits see mcmillan pennsylvania question factors normally matter congress see staples pp congress intended subsection set forth sentencing factor reasonably clear number considerations subject matter typical sentencing factor lower courts almost uniformly interpreted statutes authorize higher sentences recidivists setting forth sentencing factors creating separate crimes addition words subject subsection beginning subsection otwithstanding subsection beginning subsection meaning neither obscure pointless subsection interpreted provide additional penalties intended set forth substantive crimes moreover circumstances subsection adoption support reading statutory text title criminal penalties reentry certain deported aliens stat emphasis added signals provision deals penalties substantive crime reinforced legislative history speaks creation new penalties finally interpreting subsection create separate offense risks unfairness introduction trial evidence defendant prior crimes risks significant prejudice see spencer texas pp additional arguments supporting contrary interpretationthat magnitude increase maximum authorized sentence shows congressional intent create separate crime statutory language added petitioner conviction offers courts guidance interpret subsection doctrine constitutional doubt requires interpret subsection setting forth separate rejected pp sufficient support precedents elsewhere petitioner claim constitution requires congress treat recidivism element offense irrespective congress contrary intent winship mullaney wilbur patterson new york specht patterson taken together yield broad proposition sometimes constitution require though sometimes require state treat sentencing factor element crime offer support petitioner position legislature decision treat recidivism particular sentencing factor rather element crime exceed constitutional limits legislature power define elements offense mcmillan pennsylvania supra distinguished petitioner additional courts tradition treating recidivism element related crime simply adopt rule significant increase statutory maximum sentence trigger constitutional elements rejected pp expresses view whether heightened standard proof might apply sentencing determinations bearing significantly severity sentence cf watts per curiam affirmed breyer delivered opinion rehnquist kennedy thomas joined scalia filed dissenting opinion stevens souter ginsburg joined notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press writ certiorari appeals fifth circuit march justice breyer delivered opinion subsection defines crime forbids alien deported return without special permission authorizes prison term two years subsection section authorizes prison term years alien described subsection initial deportation subsequent conviction commission aggravated felony question us whether latter provision defines separate crime simply authorizes enhanced penalty former constitutes separate crime government must write indictment mentions additional element namely prior aggravated felony conviction latter provision simply authorizes enhanced sentence offender also earlier conviction indictment need mention fact fact earlier conviction element present crime conclude subsection penalty provision simply authorizes increase sentence recidivist define separate crime consequently neither statute constitution require government charge factor mentions earlier conviction indictment september federal grand jury returned indictment charging petitioner hugo found deported without permission consent attorney general violation section app december entered plea guilty hearing district accepted plea admitted deported later unlawfully returned earlier deportation taken place pursuant three earlier convictions aggravated felonies id march district held sentencing hearing pointed indictment must set forth elements crime see hamling added indictment mentioned earlier aggravated felony convictions argued consequently sentence two years imprisonment maximum authorized offender without earlier conviction district rejected argument found applicable sentencing guideline range months see sentencing commission guidelines manual ch pt sentencing table ussg imposed sentence months imprisonment app appeal fifth circuit also rejected petitioner argument like seven cir cuits held subsection penalty provision simply permits sentencing judge impose higher sentence unlawfully returning alien also record prior convictions see forbes crawford munozcerna haggerty valdez cf cole reaching result respect ninth circuit however reached opposite conclusion subsection constitutes separate crime granted certiorari resolve difference among circuits ii indictment must set forth element crime charges hamling supra need set forth factors relevant sentencing offender found guilty charged crime within limits see mcmillan pennsylvania question factors normally matter congress see staples definition criminal offense entrusted legislature case federal crimes solely creatures statute quoting liparota therefore look statute us ask congress intended intend factor statute mentions prior aggravated felony convic tion help define separate crime intend presence earlier conviction sentencing factor factor sentencing might use increase punishment answering question look statute language structure subject matter context typically help courts determine statute objectives thereby illuminate text see wells slip garrett directly relevant portions statute existed time petitioner conviction included subsection congress enacted subsection congress added see ed enacted june stat ed reflecting amendments made stat print portions text deported alien criminal penalties reentry certain deported aliens subject subsection section alien deported thereafter enters time found without attorney general consent legal equivalent shall fined title imprisoned years notwithstanding subsection section case alien described subsection whose deportation subsequent conviction commission certain misdemeanors felony aggravated felony alien shall fined title imprisoned years whose deportation subsequent conviction commission aggravated felony alien shall fined title imprisoned years although statute language forces close reading text well consideration interpretive circumstances see wells supra believe answer question congress intended subsection set forth sentencing factor separate reasonably clear outset note relevant statutory subject matter recidivism subject commission serious typical sentencing factor one might imagine see ussg requiring sentencing judge consider offender prior record every case instructing commission write guidelines increase sentences dramatically serious recidivists armed career criminal act imposing significantly higher sentence violation serious recidivists drug distribution sentencing commission sourcebook federal sentencing statistics year ending federal cases involved offenders substantial criminal records criminal history categories drug cases involved offenders prior convictions perhaps reflecting fact lower courts almost uniformly interpreted statutes authorize higher sentences recidivists setting forth sentencing factors creating new crimes least conduct absence recidivism independently unlawful mcgatha arango montoya jackson cadc found statute clearly makes recidivism offense element circumstances cf prior felony conviction element conduct otherwise unlawful recidivism subject matter mind turn statute language essence subsection says alien deported reappears without appropriate permission shall fined imprisoned years subsection says alien described subsection whose deportation subsequent conviction minor major crime may subject much longer prison term statute includes words subject subsection beginning subsection words otwithstanding subsection beginning subsection congress intended set forth substantive crimes respect define lesser included offense see blockburger words dissent believes words mean substantive crime defined subsection inapplicable alien covered subsection post hence words represent effort say defendant punished substantive crimes words say congress ever knowledge used similar words anywhere else federal criminal code purpose see aggravated simple assault murder manslaughter bank robbery incidental crimes aggravated simple sexual abuse come surprise since least years federal courts presumed congress intend defendant cumulatively punished two crimes one crime lesser included offense see whalen blockburger supra however congress intended subsection provide additional penalties mystery disappears words subject subsection otwithstanding subsection neither obscure pointless say without obscurity crime set forth defines crime sets forth penalty subject different penalties alien also felon aggravated felon higher maximum penalties may apply offender violates notwithstanding fact sets forth lesser penalty one committed substantive crime pointless specify punishments punishment apply whenever offender commits offense manner set forth moreover circumstances subsection adoption support reading statutory text examined language statute congress added provision issue original language help petitioner statute read follows amendment underscored deported alien criminal penalties reentry certain deported aliens subject subsection section alien deported thereafter enters time found without attorney general consent legal equivalent shall guilty felony upon conviction thereof punished imprisonment two years fine notwithstanding subsection section case alien described subsection whose deportation subsequent conviction commission felony aggravated felony alien shall fined title imprisoned years whose deportation subsequent conviction commission aggravated felony alien shall fined title imprisoned years thus time amendment operative language subsection ordinary provision said alien shall guilty felony upon conviction thereof punished imprisonment two years fine amendment subsection way contrast referred increased punishment felon aggravated felon described although one read language alien described subsection standing alone importing elements new offenses defined reading seems unusual awkward taken context reasons given linguistically speaking seems likely congress simply meant describe alien words statute guilty felony defined subsection convict ed thereof dissent points post congress later struck subsection words quoted added place words shall fined title imprisoned two years see immigration act act stat amendment one series act uniformly updated simplified phrasing various disparate civil criminal penalty provisions immigration naturalization act see act amending amending amending amending section act contained amendment titled increase fine levels authority ins collect fines relevant subsection simply criminal fine levels act stat although amendment effect making penalty provision subsection remained unchanged since parallel counterparts subsection neither amendment language legislative history act suggests housekeeping measure congress intended change clarify fundamental relationship two subsections also note title statute heading section tools available resolution doubt meaning statute trainmen baltimore ohio see also ins national center immigrants rights title amendment criminal penalties reentry certain deported aliens stat emphasis added title contains word penalties often certainly always see post signals provision deals penalties substantive crime instance amendment title reflect careless mistaken drafting title reinforced legislative history speaks creation new penalties see sess cong rec original bill titled bill provide additional criminal penalties deported aliens reenter purposes cong rec analysis referring senate bill increasing penalties unlawful reentry id remarks law increas current penalties illegal reentry deportation id remarks chiles law impose stiff penalties deported aliens previously convicted drug offenses cong rec remarks smith corresponding house bill creates penalty structure history knowledge contains language indicates congress intended create new substantive crime finally contrary substantive criminal unfairness subsection sets forth separate crime government required prove jury defendant previously deported subsequent conviction commission aggravated felony long recognized introduction evidence defendant prior crimes risks significant prejudice see spencer texas evidence prior crimes generally recognized potentiality prejudice even defendant stipulation keep name details previous offense jury see old chief slip jurors still learn indictment judge prosecutor defendant committed aggravated felony said last term question evidence nature prior offense aggravated serious carries risk unfair prejudice defendant id slip emphasis added like several lower courts believe things equal congress wanted create kind unfairness respect facts almost never contested see forbes rumney brewer en banc jackson government virgin islands castillo sum believe congress intended set forth sentencing factor subsection separate criminal offense must also consider several additional arguments might made contrary interpretation statute first one might try derive congressional intent establish separate crime magnitude increase maximum authorized sentence magnitude change congress made however proves little maximum well within range set forth statutes lower courts generally interpreted providing sentencing enhancements compare ed distributing less kilograms marijuana maximum years distributing kilograms marijuana years distributing less grams heroin maximum years distributing kilogram heroin maximum life imprisonment distributing grams cocaine years prior drug felony conviction years life doubling maximum term second subsequent violations drug importation laws using carrying explosive device commission felony maximum years subsequent offense maximum years sexual abuse children maximum life second offense mandatory life trafficking counterfeit goods maximum years subsequent offense maximum years congress later amended statute increasing maximums years respectively violent crime control law enforcement act stat nothing suggests congress intended transform statute basic nature later limits close range suggested statutes regardless second petitioner dissent point part statutory language exist petitioner convicted petitioner example points congress added two new subsections subsections petitioner says created new substantive crimes see antiterrorism effective death penalty act stat adding subsection illegal immigration reform immigrant responsibility act iirira stat adding subsection petitioner dissent also refer another statutory provision congress used word offense refer subsection us see iirira stat laws however beside point declare meaning earlier law cf federal housing administration darlington seek clarify earlier enacted general term cf red lion broadcasting depend effectiveness upon clarification change meaning earlier statute cf seatrain shipbuilding shell oil reflect direct focus congress upon meaning earlier enacted provisions cf ibid darlington supra consequently find forward looking legislative mandate guidance direct suggestion courts interpret earlier provisions regardless obvious two new subsections petitioner points create new crimes mat ter express view adding congress leave legal question issue found fact congress used technical offense years later different minor statutory provision proves least offset different words later statute suggest greater force exact opposite namely precise interpretation relation subsection subsection adopt see iirira stat stating new definition aggravated felony applies subsection violations subsection finally petitioner dissent argue doctrine constitutional doubt requires us interpret subsection setting forth separate crime justice holmes said long ago statute must construed fairly possible avoid conclusion unconstitutional also grave doubts upon score state jin fuey moy citing ex rel attorney general delaware hudson see also ashwander tva brandeis concurring canon followed respect congress assume legislates light constitutional limitations rust sullivan see also ftc american tobacco doctrine seeks part minimize disagreement branches preserving congressional enactments might otherwise founder constitutional objections designed aggravate friction creating power precedent statutes foreign congress intended simply fear constitutional difficulty upon analysis evaporate thus invoke doctrine must believe alternative serious likeli hood statute held unconstitutional doctrine serve basic democratic function maintaining set statutes reflect rather distort policy choices elected representatives made similar reasons statute must genuinely susceptible two constructions complexities unraveled statutory construction avoids constitutional question fair one unlike dissent believe conditions met present case statutory language somewhat complex considering matter context believe interpretative circumstances point significantly one direction important even assume petitioner construction statute fairly possible jin fuey moy supra constitutional questions raises requiring discussion simply lead us doubt gravely congress may authorize courts impose longer sentences upon recidivists commit particular crime fact unlike dissent gravely doubt statute constitutionality respect crucial point constitutional doubt doctrine apply mechanically whenever arises significant constitutional question answer obvious precedent makes clear need apply always applied doctrine circumstances similar constitutional question lacking obvious answer lead majority gravely doubt statute constitutional see rust declining apply doctrine although petitioner constitutional claims without force id blackmun dissenting monsanto id blackmun dissenting locke id stevens dissenting iii invoking several precedents petitioner claims constitution requires congress treat recidivism element congress contrary intent moreover petitioner says requirement carries three subsidiary requirements constitution mandates respect ordinary legislatively intended elements crimes indictment must state element see hamling government must prove element jury see duncan louisiana government must prove element beyond reasonable doubt see patterson new york find sufficient support however precedents elsewhere petitioner claim explicitly held constitution due process clause protects accused conviction except upon proof beyond reasonable doubt every fact necessary constitute crime charged winship winship case set forth proposition constitutional law decide case said constitution entitles juveniles like adults benefit proof beyond reasonable doubt respect elements crime consider whether constitution requires government treat particular fact element fact necessary constitute crime even crimedefining statute mullaney wilbur provides petitioner stronger support struck state homicide statute state presumed homicides committed malice punishable life imprisonment unless defendant proved acted heat passion id wrote winship limited facts constitute crime defined state law state undermine many interests decision sought protect redefining elements constitut ed different crimes characterizing factors bear solely extent punishment id simultaneously held prosecution must establish beyond reasonable doubt nonexistence heat passion fact state statutory scheme distinguished homicide punishable life sentence homicide punishable maximum years id read literally language concede suggests congress permit judges increase sentence light recidivism factor set forth indictment proved jury beyond reasonable doubt later case patterson new york supra however makes absolutely clear reading mullaney wrong patterson pointed state mullaney made critical absence heat passion simply potential sentencing factor also critical part definition malice aforethought turn part statute definition homicide crime question patterson maine defining crime said malice presumed unless rebutted defendant showing heat passion id found circumstance extremely important said mullaney considered held impermissible shifting burden proof respect fact state deems important must either proved presumed emphasis added held similar permis sible respect new york sentencing factor extreme emotional disturbance id factor factor state statute deemed important relation crime must either proved presumed id upshot mullaney language read literally suggests constitution requires sentencing factors treated elements patterson suggests exact opposite namely constitution requires scarcely sentencing factors treated way cases taken together significantly help petitioner statute involves sentencing prior commission aggravated neither presumed present need proved present order prove commission relevant crime see defining offense elements indeed said involves one frequently found factors effects specht patterson petitioner cites provide significant additional help specht decided patterson indeed winship consider kind matter issue later noted colorado defendant specht confronted radically different situation usual sentencing proceeding mcmillan pennsylvania petitioner might read cases taken together broad proposition sometimes constitution require though sometimes require state treat sentencing factor element see help petitioner turn case upon petitioner must primarily rely mcmillan pennsylvania supra considered pennsylvania statute set forth sentencing visibly possessing firearm presence required judge impose minimum prison term five years held constitution require state treat factor element crime holding said state link ing punishment presence absence identified fact automatically make fact element quoting patterson new york supra said citing patterson state legislature definition elements offense usually dispositive said define precisely constitutional limits legislature power define elements offense id held whatever limits might state exceeded ibid petitioner must therefore concede firearm possession respect mandatory minimum sentence violate limits must argue nonetheless recidivism respect authorized maximum violate limits assessing petitioner claim examined mcmillan determine various features case upon conclusion arguably turned mcmillan pointed statute plainly transgress limits expressly set patterson id defendant unlike mullaney defendant face differential sentencing ranging nominal fine mandatory life sentence quoting mullaney statute alte maximum penalty crime operates solely limit sentencing discretion selecting penalty within range already available statute creat separate offense calling separate penalty id statute gave impression tailored permit visible possession finding tail wags dog substantive offense contrary simply took one factor always considered sentencing courts bear punishment dictated precise weight given factor id case resembles mcmillan respect factors different respect third factor alte maximum penalty crime also creates wider range appropriate punishments statute mcmillan nonetheless conclude differences change constitutional outcome several basic reasons first sentencing factor issue traditional traditional basis sentencing increasing offender sentence see parke raley recidivism laws long tradition country dates back colonial times currently effect dept justice office justice programs statutes requiring use criminal history record information june survey ussg requiring sentencing consider defendant prior record every case consistent tradition said long ago state need allege defendant prior conviction indictment information alleges elements underlying crime even though conviction necessary bring case within statute graham west virginia conclusion followed said distinct nature issue fact recidivism relate commission offense goes punishment therefore may subsequently decided id emphasis added deviated view see oyler boles due process require advance notice trial substantive offense followed accusation defendant habitual offender parke supra charge recidivism statute state separate offense goes punishment said infra congress reflecting tradition never knowledge made defendant recidivism element offense conduct proscribed otherwise unlawful see jackson cadc ginsburg referring fact federal statutes make prior criminal convictions elements another criminal offense proved jury although precedents foreclose petitioner claim example state statute issue graham oyler provided jury determination disputed prior convictions hold constitution requires recidivism deemed element petitioner offense mark abrupt departure longstanding tradition treating recidivism go ing punishment graham supra second major difference case mcmillan consists circumstance sentencing factor issue prior conviction triggers increase maximum permissive sentence sentencing factor issue mcmillan triggered mandatory minimum sentence yet permissive maximum mandatory systematically normally work disadvantage criminal defendant contrary statutory minimum binds sentencing judge statutory maximum mandatory minimum justice stevens dissenting mcmillan pointed mandate minimum sentence imprisonment twice severe maximum trial judge otherwise imposed mcmillan supra eliminate sentencing judge discretion entirety see authorizing maximum term life imprisonment sexual abuse children mandating life imprisonment second offense produce unfairly disproportionate impacts certain kinds offenders see sentencing commission mandatory minimum penalties federal criminal justice system discussing tariff cliff effects mandatory minimums sum risk unfairness particular defendant less may well greater mandatory minimum sentence rather permissive maximum sentence issue although mcmillan pointed difference mandatory minimums higher authorized maximums neither rested judgment difference rejected analysis dissent contends post rather mcmillan said petitioners argument case superficial appeal sentencing fact exposed greater additional punishment emphasis added reasons given light particular sentencing factor issue take mcmillan statement mean said therefore make determinative difference third statute broad permissive sentencing range create significantly greater unfairness judges parole boards typically exercised discretion within broad statutory ranges see supra statutory examples national institute justice sentencing reform survey sentencing laws friedman crime punishment american history history indeterminate sentencing sentencing guidelines recently sought channel discretion using sentencing factors one claims constitution thereby makes elements crime finally remaining mcmillan factors support conclusion congress constitutional power treat feature conviction aggravated sentencing factor particular offense illegal entry deportation relevant statutory provisions change definition crime reason mcmillan think congress intended evade constitution either presuming guilt restructuring elements offense cf mcmillan supra reasons find mcmillan case holding constitution permits legislature require longer sentence gun possession significant support proposition constitution forbids legislature authorize longer sentence recidivism petitioner makes two basic additional arguments response points calls different tradition courts treated recidivism element related crime see massey singer people sickles see also post citing authority find claim convincing however tradition uniform see spencer texas method determining prior convictions varies jurisdictions affording jury trial issue leaving question note recidivist procedures rev eight recidivism statutes provide determination prior convictions judge jury appear modern compare state thorne upholding state recidivism law federal constitutional challenge state furth nowhere knowledge rested upon federal constitutional guarantee see massey supra applying federal law noting jury determination prior offense applied unless statute designates different mode procedure petitioner also argues essence simply adopt rule significant increase statutory maximum sentence trigger constitutional elements requirement explained believe constitution interpreted mcmillan earlier cases impose requirement add rule seem anomalous light existing case law permits judge rather jury determine existence factors make defendant eligible death penalty punishment far severe faced petitioner see walton arizona rejecting capital defendant argument every finding fact underlying death sentence must made jury hildwin florida per curiam judge may impose death penalty based finding aggravating factor factor element offense determined jury spaziano florida also find difficult reconcile rule precedent holding circumstances recidivism part definition offense double jeopardy purposes graham reasons reject petitioner constitutional claim recidivism must treated element offense iv mention one final point petitioner makes separate subsidiary standard proof claims respect sentencing perhaps admitted recidivism time pleaded guilty therefore find difficult show standard proof made difference case accordingly express view whether heightened standard proof might apply sentencing determinations bear significantly severity sentence cf watts per curiam slip acknowledging resolving divergence opinion among circuits proper standard determining existence relevant conduct lead increase sentence judgment appeals affirmed writ certiorari appeals fifth circuit march justice scalia justice stevens justice souter justice ginsburg join dissenting hugo roman illegally reentered convicted aggravated felony subject maximum possible sentence years imprisonment see convicted felony subject maximum two years see today holds set forth separate offense conviction prior felony merely sentencing enhancement offense set forth causes confront difficult question whether constitution requires fact substantially increases maximum permissible punishment crime treated element charged indictment found beyond reasonable doubt jury said far obvious answer question basis prior law fact answer considerably doubtful prior cases bearing upon issue however confronted criminal statute criminal ruling unambiguously relieved prosecution burden proving critical fact jury beyond rea sonable doubt mcmillan pennsylvania statute provided possess ion firearm element crime shall determined sentencing preponderance evidence id quoting cons stat winship provided determinations criminal action juvenile cases based preponderance evidence id quoting family act patterson new york statute provided extreme emotional disturbance affirmative defense id quoting penal law mckinney mullaney wilbur maine highest held murder cases malice aforethought presumed negated defendant id citing state lafferty contrast provisions involved cases face place constitutional issue us say subsection merely sentencing enhancement text statute supports indeed demand conclusion subsection separate offense includes violation described subsection adds additional element prior felony conviction therefore reach difficult constitutional issue case adopt think cases require reasonable interpretation avoids problem illegal reentry simpliciter illegal reentry conviction aggravated felony separate criminal offenses prior conviction aggravated felony element latter offense must charged indictment since petitioner sentence must set aside statute susceptible two constructions one grave doubtful constitutional questions arise questions avoided duty adopt latter ex rel attorney general delaware hudson supra cardinal principle long applied beyond debate edward debartolo florida gulf coast building constr trades council requires merely determination serious constitutional doubt determination unconstitutionality must course otherwise rule mea duty first decide statute unconstitutional proceed hold ruling unnecessary statute susceptible meaning causes repugnant constitution ex rel attorney general delaware hudson supra contends neither two conditions application rule present constitutional question doubtful statute susceptible construction avoid shall address former point first genuinely doubtful whether constitution permits judge rather jury determine mere preponderance evidence rather beyond reasonable doubt fact increases maximum penalty criminal defendant subject clear enough prior cases resolving questions margins one winship supra invalidated new york statute burden proof juvenile delinquency proceeding reduced proof preponderance evidence held due process clause protects accused conviction except upon proof beyond reasonable doubt every fact necessary constitute crime charged protection extends juvenile charged act constitute crime committed adult five years later mullaney wilbur supra unanimously extended winship protections determinations went defendant guilt innocence simply length sentence invalidated maine homicide law intentional murders presumed committed malice aforethought punishable life imprisonment unless defendant rebut presumption proof acted heat passion case conviction reduced manslaughter maximum sentence years acknowledged maine law facts intent general elements crime felonious homicide nstead bore appropriate punishment category nonetheless rejected distinction guilt punishment winship said limited facts constitute crime defined state law state undermine many interests decision sought protect without effecting substantive change law necessary redefine elements constitute different crimes characterizing factors bear solely extent punishment id patterson new york cut back broader implications mullaney although case contained acknowledged language ha understood perhaps construing due process clause require prosecution prove beyond reasonable doubt fact affecting degree criminal culpability denied intend ed farreaching effect accordingly upheld patterson new york law casting upon defendant burden proving affirmative defense murder influence extreme emotional disturbance reasonable explanation excuse defense reduce crime manslaughter explained roof nonexistence affirmative defenses never constitutionally required state need prove beyond reasonable doubt every fact existence nonexistence willing recognize exculpatory mitigating circumstance affecting degree culpability severity punishment cautioned however decision might seem permit state legislatures reallocate burdens proof labeling affirmative defenses least elements crimes defined statutes obviously constitutional limits beyond may go regard finally recently mcmillan pennsylvania upheld pennsylvania mandatory minimum sentencing act prescribed mandatory minimum sentence five years upon judge finding preponderance evidence defendant visi bly possessed firearm commission certain enumerated offenses carried maximum sentences five years observed never attempted define precisely constitutional limits noted patterson extent due process forbids reallocation reduction burdens proof criminal cases explained whatever limits pennsylvania law transgress primarily neither alter ed maximum penalty crime committed create separate offense calling separate penalty operate solely limit sentencing discretion selecting penalty within range already available without special finding visible possession firearm feebleness contention serious constitutional doubt evidenced degree must ignore distort analysis mcmillan described opinion emphasizedand emphasized increase maximum penalty issue beyond specifically acknowledged outcome might different statute might unconstitutional maximum sentence affected petitioners claim visible possession pennsylvania statute element offenses pennsylvania effect defined new set upgraded least superficial appeal finding visible possession exposed greater additional punishment cf providing separate greater punishment bank robberies accomplished dangerous weapon device despite us believe present statute alteration maximum permissible acknowledges major difference case mcmillan ante favor rather statute constitutionality increase minimum sentence rather permissible maximum disadvantageous defendant ibid certainly arguable position argued temerity note dissent mcmillan position mcmillan rejected upon converse mcmillan rested judgment addition inverting consequence distinction statutes prescribe minimum sentence increase permissible maximum sentence seeks minimize importance distinction characterizing merely one five factors relied mcmillan asserting four factors ante fact however mcmillan set forth test selectively recruits factors various parts discussion first factor example statute plainly transgress limits expressly set patterson ante quoting mcmillan viz discar presumption innocence relieve prosecution burden proving guilt narrows issue one rather giving clue resolution issue factor solving constitutional problem us observation ex post facto law effect unreasonable search seizure second fourth part fifth factors fact subparts crucial third factor one absent since culled general discussion mcmillan pennsylvania statute simply limited sentencing judge discretion said whereas mullaney state imposed differential sentencing ranging nominal fine mandatory life sentence second factor pennsylvania law neither alter ed maximum penalty crime committed third factor create separate offense calling separate penalty fourth factor operate solely limit sentencing discretion selecting penalty within range already available without special finding visible possession firearm third factor statute gives impression tailored permit visible possession finding tail wags dog substantive offense part fifth factor recruitment factors said selective omitted example mcmillan statement petitioners contend particular factor made relevant statute historically treated legal tradition requiring proof beyond reasonable doubt id quoting patterson petitioner make assertion present shall discuss even selective harvesting incorrect assertion factors recites ante implication except third exist present case well second contrasted consequence fact assumed mullaney extension permissible sentence little nominal fine much mandatory life sentence consequence fact issue mcmillan extension permissible sentence merely limit ation sentencing discre tion selecting penalty within range already available present case resembles mullaney rather mcmillan regard since fact issue increases permissible sentence tenfold significant part fifth factor statute mcmillan precise weight given statutory factor ante quoting mcmillan likewise point difference similarity parsing various factors really beside point one read mcmillan cases especially mullaney whose limits adverted patterson never precisely described without entertaining serious doubt whether statute interpreted present case constitutional one read mcmillan latest opinion point without perceiving determinative element validation pennsylvania statute fact merely limited sentencing judge discretion within range penalty already available rather substantially increasing available sentence even one read mcmillan without learning open argument constitution requires fact increase available sentence treated element crime argument said least superficial appeal enough must added fact many state courts concluded prior conviction increases maximum punishment must treated element offense either state constitutions see state mcclay tuttle commonwealth mass prior conviction increasing maximum sentence must set forth indictment state furth state ex rel lockmiller mayo roberson state crim app matter common law see people ex rel cosgriff craig people mcdonald state smith iowa uniform current authority fact prior convictions taken part offense instantly charged least extent aggravating authorizing increased punishment state pennye state waterhouse robbins state ark state eichler iowa end credibly argue question whether fact increases maximum permissible punishment must found jury beyond reasonable doubt easy one perhaps stresses stresses repeatedly limited subject matter even tries utter lack logic limit rejection fair reading mcmillan recidivism cases reasons given says light particular sentencing factor issue take mcmillan statement regarding superficial appeal defendant argument factor issue increased maximum sentence mean said therefore make determinative difference ante emphasis added impossible understand mcmillan mean one thing later case recidivism issue something else later case sentencing factor issue one might say course recidivism exception general rule set forth mcmillan forthright characterization display doubtful constitutional question light prior case law event rational basis making recidivism exception view recidivism need proved jury beyond reasonable doubt view shall discuss precisely contrary tradition punishment relies conclusion upon opinion graham west virginia see ante quoting graham supra see also ante holding graham provides support position upheld due process double jeopardy objections state recidivism law defendant prior convictions charged tried separate proceeding convicted underlying offense notes ante prior convictions charged indictment underlying offense charged information defendant tried prior convictions impor tantly law explicitly preserved right jury determination recidivism question see graham supra see also oyler boles true however basis graham holding accepted one conclude recidivism need tried jury found beyond reasonable doubt essence graham reasoning recidivism proceeding defendant held answer offense since recidivism charge punishment ibid quoting mcdonald massachusetts basis dispensing protections jury trial findings beyond reasonable doubt explicitly rejected mullaney accorded protections facts general elements crime felonious homicide bore appropriate punishment category whatever else mullaney stands certainly stands proposition graham used line demarcation double jeopardy due process purposes matter goes punishment line demarcation purposes right jury trial proof beyond reasonable doubt also mcmillan even narrowing mullaney made clear mere fact certain finding goes penalty end inquiry certainly correct distinctive treatment recidivism determinations double jeopardy purposes takes explaining takes explaining less explanation assuredly apparently suggests recidivism never element crime much less violence jurisprudence traditional practice requiring jury finding recidivism beyond reasonable doubt explain graham recidivism exception normal double jeopardy rule conviction lesser included offense bars later trial greater crime double jeopardy law based upon traditional american english practice see dixon wilson practice allowed recidivism charged tried separately see spencer texas graham supra mcdonald supra allowed recidivism determined judge likely given many arguments supporting position constitution requires recidivism finding case made jury beyond reasonable doubt endorse position necessarily correct indeed defeat whole purpose honor practice deciding doubtful constitutional questions unnecessarily tried need basis jurisprudence date answer constitutional question clear burden hand establish constitutional answer shines forth clearly cases burden simply sustained think beyond question today unnecessary resolution point serious doubt whether constitution permits defendant sentencing exposure increased tenfold basis fact charged tried jury found beyond reasonable doubt wishes abandon doctrine constitutional doubt forthrightly rather declaring certainty point clouded doubt ii contends doctrine constitutional doubt also inapplicable fairly sus ceptible construction avoids constitutional construction whereby subsection sets forth separate criminal offense ante begins statutory analysis examining text demonstrating subject matter statute commission serious crimeis typical sentencing factor one might imagine ante eminently demonstrable sounds powerfully good fact proves nothing certainly true judge whether bound federal sentencing guidelines likely sentence nearer maximum permitted offense defendant repeat offender said many perhaps factors used define aggravated offenses example judges typically sentence nearer maximum statute allows crime conviction committed firearm course another felony way suggests armed robbery felony murder sentencing enhancements rather separate crimes relevant question present purposes whether prior felony conviction typically used sentencing factor rather whether statutes provide higher maximum sentences crimes committed convicted felons prior conviction typically treated mere sentence enhancement rather element separate offense answer question latter rule common law practice among time recent study aware see note recidivist procedures rev note pleading proof prior convictions habitual criminal prosecutions rev common law fact prior convictions charged indictment charging underlying crime submitted jury determination along crime see spencer texas massey singer people sickles several later altered procedure providing separate proceeding determination prior convictions least late eight retained defendant right jury determination issue see note recidivist procedures rev supra loss explain assertion found statute clearly makes recidivism offense element added another crime ante many interesting drags red herring recidivism parts constitutional doubt part statutory interpretation part alike discussed logic demonstrates nature charge fact typical sentencing factor nothing statute means discussed earlier text reasoning mcmillan cases mcmillan distinguishes provide basis saying recidivism exempt clear acknowledgment taking away jury facts increase maximum sentence constitutionally questionable one wonders state courts lower federal courts supposed today terious utterances pursue logic conclude ambiguous statutes adding punishment factors accompanying principal offense mere enhancements illogically give special treatment recidivism deem reasoning mcmillan superseded cases remain open doubtful question cases except involving recidivism whether statutory maximums increased without benefit jury trial whatever else one may say today opinion doubt brought area law confusion clarification passing red herring let turn statute stood petitioner convicted author today opinion agreed language structure enactment subject two plausible readings one recidivism constitutes separate offense forbes opinion coffin joined breyer surely enough satisfy requirement expressed justice holmes see jin fuey moy approved ante construction fairly possible today however relegates statutory language structure merely two five factors help courts determine statute objectives thereby illuminate text ante statutory text reads relevant part follows reentry deported alien criminal penalties reentry certain deported aliens subject subsection section alien shall fined title prisoned years notwithstanding subsection section whose deportation subsequent conviction commission three misdemeanors involving drugs crimes person felony aggravated felony alien shall fined title imprisoned years whose deportation subsequent conviction commission aggravated felony alien shall fined title imprisoned years one struck parallel structure subsections neither subsection says individual describes shall guilty felony subsections say individuals describe shall fined title imprisoned years suffices define substantive offense subsection agree hard see define substantive offense paragraph subsection well compare example subsection entitled unlawful acts subsection entitled penalties opening phrase subsection certainly indicate follows merely supplements enhances penalty provision subsection follows apply notwithstanding subsection spite without prevention obstruction subsection see webster new international dictionary ed next phrase case alien described subsection imports reference substantive acts attributed hypo thetical alien deportation unauthorized reentry subsection significantly phrase apply subsection alien convicted subsection one expect provision merely increasing penalty certain subsection convictions see davis noting predicat ing punishment upon conviction another offense one common indicia provisions instead subsection applies alien described subsection deported reentered illegally finally subsection provision applies ubject subsection means subsection inapplicable alien covered subsection subsection applies notwithstanding alien otherwise covered subsection relies earlier version support interpretation statute current form ante agree statutory history legitimate tool construction statutory history support rather undermines interpretation earlier version contained subsection addition setting forth penalties subparts subsection contained phrase subparts subsection shall guilty felony upon conviction thereof formulation course easier conclude subsection defines crime sets forth basic penalty subsection sets forth merely penalty enhancements additional language subsection statute connoted elimination additional language version statute issue meant achieve see stat strongly shall guilty felony language suggests subsection statute contained enhancements strongly otherwise inexplicable elimination language suggests subsection statute meant parallel subsection subsections meant set forth merely penalties also offenses considering subject matter statutory language third factor considers arriving determination statute read sentencing enhancement title ment added subsection criminal penalties reentry certain deported aliens see stat cited ante course title pertains subsection unlike petitioner convicted parallel preceding subsection even disregarding title amendment proves nothing criminal penalties reentry might normally suggestive enhancement separate offense good reason believe imports suggestion next provision enactment adjusts substantive requirements crime aiding abetting unlawful entry alien entitled criminal penalties aiding assisting certain aliens enter see stat evidently new substantive offenses penalized simply entitled criminal penalties relevant offense moreover amendment kept original title reentry deported alien intact leaving apply subsection subsection see supra stat fourth factor leading conclude statute reasonably construed establishing substantive offenses legislative history see ante legislative history provision existed subsection stripped language shall guilty felony thereby making subsections parallel even help case stray statements culls congressional record prove new subsection thought increase penalties unlawful reentry dispute critical question whether adding penalties subsection offense creating additional severely punished offenses technical point alluded remarks recites fifth last argument support interpretation statute contention contrary interpretation risks unfairness ante require bringing existence prior felony conviction attention jury also unfair course deprive defendant jury determination burden proof critical question prior conviction assessment disadvantages greater relevance insofar presume perception shared enacting congress usually presume however earlier congress agreed current policy judgments rather agreed disposition provided traditional practice common law see texas astoria fed sav loan assn solimino norfolk redevelopment housing authority chesapeake potomac telephone morissette noted earlier hostility jury determination prior convictions quite simply odds manner recidivism laws historically treated country moreover even free resolve matter according current views fair judgment avoiding jury infection important affording jury verdict beyond reasonable doubt seem sound correct begin fact prior conviction almost never contested ante particularly unlawfulentry cases clear legislative history present statute senator chiles explained identifying prosecuting illegal alien felons long complex process uncommon alien committed certain felony pay bond walk apprehended similar crime next county new name identification cong rec went describe two specific aliens one police seized passports issued different names drivers licenses immigration cards numerous firearms stolen property immigration officials alien files aliases different birth dates different social security cards id said aliens exceptions rather common amongst illegal alien felons ibid representative smith stated aliens arrested felonies often able pay expensive bonds disappear new identity often reappear different name new offense cases may return native lands reenter new names papers committing crimes side ledger doubt whether infection jury knowledge prior crime serious problem see spencer supra defendants interests keeping prejudicial prior convictions jury protected limiting instructions discretion residing trial judge limit forbid admission particularly prejudicial evidence even though admissible accepted rule evidence citation omitted old chief slip abuse discretion federal rule evidence disallow defendant stipulation prior felony convictions convictions element offense cf brief national association criminal defense lawyers amicus curiae section defendants pleaded guilty problem however legislative even judicial means dealing short today decision taking matter away jury cases see rev describing commonly used procedures defendant right jury invoked denies existence prior convictions stands mute spencer supra describing english rule indictment alleges substantive offense prior conviction jury charged prior conviction convicts defendant substantive offense sum find none four nontextual factors relied upon support interpretation typicality recidivism sentencing factor titles legislative history risk unfairness persuasive seem significant however related statutory provision introduced amendment explicitly refers subsection setting forth offenses see stat instructing sentencing commission amend sentencing guidelines offenses later amendment course cause subsection meant time petitioner conviction something different said congress expressed understanding subsection creates separate offenses surely evidence fairly possible read provision way emphasize conclude part discussion fairly possible needs established doctrine constitutional doubt require construction preferable one adopt event standard deprive doctrine function adopt interpretation avoids constitutional doubt right one produces precisely result adopt right interpretation rather doctrine constitutional doubt comes play statute susceptible interpretation delaware hudson interpretation reasonable though necessarily best think quite impossible maintain standard met interpretation subsection regards creating separate offenses foregoing reasons think must interpret statute us establishing separate offense rather sentence enhancement argued constitutional doubts require course resolved statutes less ambiguous one us interpretable sentence enhancements much achieved begs question course constitutional doubt resolved moreover doctrine constitutional doubt apply result may dictated rule lenity preserve rather destroy criminal defendant right jury findings beyond reasonable doubt see people ex rel cosgriff craig unnecessary case decide great punishment legislature may constitutionally authorize courts special sessions impose conviction without jury sufficient say cases doubtful construction conflicting statutory provisions interpretation given best protects rights person charged offense trial according common law whichever doctrine applied purpose seems sound principle whenever congress wishes fact increase maximum sentence without altering substantive offense must make intention unambiguously clear accordingly find establishes separate offense reverse judgment notes asserts declined apply doctrine circumstances similar constitutional question lacking obvious answer lead majority gravely doubt statute constitutional ante cases cites however support contention rust sullivan believed question statutory prohibition constitutional id emphasis added locke found doctrine inapplicable lack constitutional doubt statutory language permit interpretation avoid constitutional question id similarly monsanto language statute plain unambiguous id claims anomalous require jury trial factor increasing maximum sentence light existing case law permits judge rather jury determine existence factors make defendant eligible death penalty ante citing walton arizona hildwin florida per curiam spaziano florida neither cases cited case permits judge determine existence factor makes crime capital offense cited cases hold jury found defendant guilty elements offense carries maximum penalty sentence death may left judge decide whether maximum penalty rather lesser one decision constrained statutory requirement certain aggravating factors must exist person charged actions expose death penalty absolute entitlement jury trial elements charge federal statutes sort see provisions recidivism recited list aggravators include example intent defraud mislead use firearm machine gun destructive device equipped silencer wounding threatening life dangerous weapon violence text treat recidivism mere enhancement treating parallel provisions aggravated offenses obviously statutory text issue forbes relevant respects identical statute us except years imprisonment offenses less increased amendment see stat contends treating subsection establishing substantive offenses renders notwithstanding subject provisions redundant even without lesser includedoffense jurisprudence prevent defendant convicted subsections ante redundancy however consists annoying practice saying thing twice sensible practice saying clarity conciseness law provides author today opinion agreed fact subsection makes reference simply logical way indicating relationship arguably two separate crimes forbes redundancy redundancy alternative reading one believes without notwithstanding subject language interpretive jurisprudence permit subsection penalty added subsection penalties immediately stressing significance version dismisses amendment eliminated language upon relies housekeeping measure congress inten change clarify fundamental relationship subsections ante offers support confident characterization unless mistaken assumption statutory changes clarifications unconfirmed legislative history inoperative suffice say legislative history need confirm details changes law effected statutory language interpret language according natural meaning morales trans world airlines incorrect contention provision amendments reflects opposite congressional understanding see ante provision amendments apply subsection violations subsection occurring date enactment stat dispute course subsection creates separate offenses one elements separate offenses lesser offense set forth subsection quoted language clearest simplest way saying element subsection offenses must occurred date enactment order amendments applicable