Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
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 (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 (quoting 42 Pa. Cons. Stat. § 9712 (1982)). In In re Winship, 397 U. S. 358 (1970), it provided that determinations of criminal action in juvenile cases " 'must be based on a preponderance of the evidence,' " id., at 360 (quoting N. Y. Family Court Act § 744(b)). In Patterson v. New York, 432 U. S. 197 (1977), the statute provided that extreme emotional disturbance " 'is an affirmative defense,' " id., at 198, n. 2 (quoting N. Y. Penal Law § 125.25 (McKinney 1975)). And in Mullaney v. Wilbur, 421 U. S. 684 (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 (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 reentry simpliciter (§ 1326(a)) and illegal reentry after conviction of an aggravated felony (§ 1326(b)(2)) are separate criminal offenses. Prior conviction of an aggravated felony being an element of the latter offense, it must be charged in the indictment. Since it was not, petitioner's sentence must be set aside.
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