248
Scalia, J., dissenting
sentencing, perhaps because he admitted his recidivism at the time he pleaded guilty and would therefore find it diffi-cult to show that the standard of proof could have made a difference to his case. Accordingly, we express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence. Cf. United States v. Watts, 519 U. S. 148, 156, and n. 2 (1997) (per curiam) (acknowledging, but not resolving, "divergence of opinion among the Circuits" as to proper standard for determining the existence of "relevant conduct" that would lead to an increase in sentence).
The judgment of the Court of Appeals is
Affirmed.
Justice Scalia, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
Because Hugo Roman Almendarez-Torres illegally reentered the United States after having been convicted of an aggravated felony, he was subject to a maximum possible sentence of 20 years' imprisonment. See 8 U. S. C. § 1326(b)(2). Had he not been convicted of that felony, he would have been subject to a maximum of only two years. See 8 U. S. C. § 1326(a). The Court today holds that § 1326(b)(2) does not set forth a separate offense, and that conviction of a prior felony is merely a sentencing enhancement for the offense set forth in § 1326(a). This causes the Court to confront the difficult question whether the Constitution requires a fact which substantially increases the maximum permissible punishment for a crime to be treated as an element of that crime—to be charged in the indictment, and found beyond a reasonable doubt by a jury. Until the Court said so, it was far from obvious that the answer to this question was no; on the basis of our prior law, in fact, the answer was considerably doubtful.
In all our prior cases bearing upon the issue, however, we confronted a criminal statute or state-court criminal ruling
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