Almendarez-Torres v. United States, 523 U.S. 224, 46 (1998)

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

Scalia, J., dissenting

with knowledge of the prior crime is a serious problem. See, e. g., Spencer, 385 U. S., at 561 ("The defendants' interests [in keeping prejudicial prior convictions from the jury] are protected by limiting instructions and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence" (citation omitted)); Old Chief v. United States, 519 U. S. 172, 191 (1997) (it is an abuse of discretion under Federal Rule of Evidence 403 to disallow defendant's stipulation to prior felony convictions where such convictions are an element of the offense); cf. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 30 ("In 1996, 98.2% of all Section 1326 defendants pleaded guilty"). If it is a problem, however, there are legislative and even judicial means for dealing with it, short of what today's decision does: taking the matter away from the jury in all cases. See Note, 40 N. Y. U. L. Rev., at 333-334 (describing commonly used procedures under which defend-ant's right to a jury is invoked only "[i]f [he] denies the existence of prior convictions or stands mute"); Spencer, supra, at 567 (describing the English rule, under which the indictment alleges both the substantive offense and prior conviction, but the jury is not charged on the prior conviction until after it convicts the defendant of the substantive offense).

In sum, I find none of the four nontextual factors relied upon by the Court to support its interpretation ("typicality" of recidivism as a sentencing factor; titles; legislative history; and risk of unfairness) persuasive. What does seem to me significant, however, is a related statutory provision, introduced by a 1996 amendment, which explicitly refers to subsection (b)(2) as setting forth "offenses." See § 334, 110 Stat. 3009-635 (instructing United States Sentencing Commission to amend sentencing guidelines "for offenses under . . . 1326(b)"). This later amendment can of course not cause subsection (b)(2) to have meant, at the time of petitioner's conviction, something different from what it then

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