262
Scalia, J., dissenting
element" added to another crime, ante, at 230. There are many such.3
It is interesting that the Court drags the red herring of recidivism through both parts of its opinion—the "constitutional doubt" part and the "statutory interpretation" part alike. As just discussed, logic demonstrates that the nature of that charge (the fact that it is a "typical" sentencing factor) has nothing to do with what this statute means. And as discussed earlier, the text and reasoning of McMillan, and of the cases McMillan distinguishes, provide no basis for saying that recidivism is exempt from the Court's clear acknowledgment that taking away from the jury facts that increase the maximum sentence is constitutionally questionable. One wonders what state courts, and lower federal courts, are supposed to do with today's mysterious utterances. Are they to pursue logic, and conclude that all ambiguous statutes adding punishment for factors accompanying the principal offense are mere enhancements, or are they illogically to give this special treatment only to recidivism? Are they to deem the reasoning of McMillan superseded for all cases, or does it remain an open and doubtful question, for all cases except those involving recidivism, whether statutory maximums can be increased without the benefit of jury trial? Whatever else one may say about today's opinion, there is no doubt that it has brought to this area of the law more confusion than clarification.
Passing over the red herring, let me turn now to the statute at issue—§ 1326 as it stood when petitioner was con-3 For federal statutes of this sort, see, e. g., 15 U. S. C. § 1264(a), 18 U. S. C. § 924(c), and § 2114(a). In each of these provisions, recidivism is recited in a list of sentence-increasing aggravators that include, for example, intent to defraud or mislead (15 U. S. C. § 1264(a)), use of a firearm that is a machine gun, or a destructive device, or that is equipped with a silencer (18 U. S. C. § 924(c)), and wounding or threatening life with a dangerous weapon (§ 2114(a)). It would do violence to the text to treat recidivism as a mere enhancement while treating the parallel provisions as aggravated offenses, which they obviously are.
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