254
Scalia, J., dissenting
to an indefinite term up to and including life imprisonment. 477 U. S., at 88.
Despite all of that, the Court would have us believe that the present statute's alteration of the maximum permissible sentence—which it acknowledges is "the major difference between this case and McMillan," ante, at 244—militates in favor of, rather than against, this statute's constitutionality, because an increase of the minimum sentence (rather than the permissible maximum) is more disadvantageous to the defendant. Ibid. That is certainly an arguable position (it was argued, as the Court has the temerity to note, by the dissent in McMillan). But it is a position which McMillan not only rejected, but upon the converse of which McMillan rested its judgment.
In addition to inverting the consequence of this distinction (between statutes that prescribe a minimum sentence and those that increase the permissible maximum sentence) the Court seeks to minimize the importance of the distinction by characterizing it as merely one of five factors relied on in McMillan, and asserting that the other four factors here are the same. Ante, at 242-243. In fact, however, McMillan did not set forth any five-factor test; the Court selectively recruits "factors" from various parts of the discussion. Its first factor, for example, that " 'the statute plainly does not transgress the limits expressly set out in Patterson,'" ante, at 242, quoting McMillan, 477 U. S, at 86—viz., that it does not "discar[d] the presumption of innocence" or "relieve the prosecution of its burden of proving guilt," id., at 87—merely narrows the issue to the one before the Court, rather than giving any clue to the resolution of that issue. It is no more a factor in solving the constitutional problem before us than is the observation that � 1326 is not an ex post facto law and does not effect an unreasonable search or seizure. The Court's second, fourth, and part of its fifth "factors" are in fact all subparts of the crucial third factor (the one that is absent here), since they are all culled from the general dis-
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