Almendarez-Torres v. United States, 523 U.S. 224, 41 (1998)

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264

ALMENDAREZ-TORRES v. UNITED STATES

Scalia, J., dissenting

shall be fined under such title, imprisoned not more than 20 years, or both." 8 U. S. C. § 1326(b).

One is struck at once by the parallel structure of subsections (a) and (b). Neither subsection says that the individual it describes "shall be guilty of a felony," and both subsections say that the individuals they describe "shall be fined under title 18, or imprisoned not more than [2, 10, or 20] years." If this suffices to define a substantive offense in subsection (a) (as all agree it does), it is hard to see why it would not define a substantive offense in each paragraph of subsection (b) as well. Cf., for example, 21 U. S. C. § 841, which has a subsection (a) entitled "Unlawful acts," and a subsection (b) entitled "Penalties."

The opening phrase of subsection (b) certainly does not indicate that what follows merely supplements or enhances the penalty provision of subsection (a); what follows is to apply "notwithstanding" all of subsection (a), i. e., "in spite of" or "without prevention or obstruction from or by" subsection (a). See, e. g., Webster's New International Dictionary 1669 (2d ed. 1949). The next phrase ("in the case of any alien described in . . . subsection [(a)]") imports by reference the substantive acts attributed to the hypothetical alien (deportation and unauthorized reentry) in subsection (a). Significantly, this phrase does not apply subsection (b) to any alien "convicted under" subsection (a)—which is what one would expect if the provision was merely increasing the penalty for certain subsection (a) convictions. See, e. g., United States v. Davis, 801 F. 2d 754, 755-756 (CA5 1986) (noting that "predicat[ing] punishment upon conviction" of another offense is one of the "common indicia of sentence-enhancement provisions"). Instead, subsection (b) applies to an alien "described in" subsection (a)—one who has been deported and has reentered illegally. And finally, subsection (a)'s provision that it applies "[s]ubject to subsection (b)" means that subsection (a) is inapplicable to an alien covered by subsection (b), just as subsection (b) applies "not-

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