Almendarez-Torres v. United States, 523 U.S. 224, 40 (1998)

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Cite as: 523 U. S. 224 (1998)

Scalia, J., dissenting

victed. The author of today's opinion for the Court once agreed that the "language and structure" of this enactment "are subject to two plausible readings," one of them being that recidivism constitutes a separate offense. United States v. Forbes, 16 F. 3d 1294, 1298 (CA1 1994) (opinion of Coffin, J., joined by Breyer, C. J.).4 This would surely be enough to satisfy the requirement expressed by Justice Holmes, see United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916), and approved by the Court, ante, at 237-238, that the constitutional-doubt-avoiding construction be "fairly possible." Today, however, the Court relegates statutory language and structure to merely two of five "factors" that "help courts determine a statute's objectives and thereby illuminate its text," ante, at 228.

The statutory text reads, in relevant part, as follows:

"Reentry of deported alien; criminal penalties for re-entry of certain deported aliens

"(a) Subject to subsection (b) of this section, any alien who [has been deported and thereafter reenters the United States] . . . shall be fined under title 18, or imprisoned not more than 2 years, or both.

"(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—

"(1) whose deportation was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both; or

"(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien

4 The statutory text at issue in Forbes was in all relevant respects identical to the statute before us here, except that the years of imprisonment for the offenses were less; they were increased by a 1994 amendment, see § 130001(b), 108 Stat. 2023.

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