228
Syllabus
ever, weaken those points. First, if the shorter subsection (2) does not stand alone, neither does § 2119's more voluminous first paragraph, which by itself would merely describe some obnoxious behavior, never actually telling the reader that it is a crime. Only the numbered subsections complete the thought. Second, "shall" does not invariably separate offense-defining clauses from sentencing provisions. Section 2119's text alone does not justify any confident inference. Statutory drafting, however, occurs against a backdrop not merely of structural conventions of varying significance, but of traditional treatment of certain categories of important facts, like degree of injury to victims, in relation to particular crimes. If a statute is unclear about whether it treats a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, since Congress is unlikely to intend any radical departures from past practice without making a point of saying so. See Almendarez-Torres v. United States, 523 U. S. 224, 230. Here, a search for comparable examples suggests that Congress had separate and aggravated offenses in mind when it employed numbered subsections in § 2119, for it unmistakably identified serious bodily injury or related facts of violence as an offense element in several other federal statutes, including two of the three robbery statutes on which it modeled the carjacking statute. This conclusion is bolstered by the States' practice of treating serious bodily injury as an element defining a distinct offense of aggravated robbery. Neither a 1996 amendment to the statute nor the statute's legislative history supports the Government's reading. Pp. 232-239.
(b) The Government's construction of the statute would raise a serious constitutional question under the Fifth Amendment's Due Process Clause and the Sixth Amendment's notice and jury trial guarantees: when a jury determination has not been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of the penalty for a variant of a given crime? Although this question has been recognized in a series of cases over the past quarter century, see, e. g., Mullaney v. Wilbur, 421 U. S. 684, it has not been resolved by those cases, see, e. g., Almendarez-Torres v. United States, supra. Any doubt on the issue of statutory construction should thus be resolved in favor of avoiding the question, under the rule that, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [this Court's] duty is to adopt the latter." United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408. Pp. 239-252.
116 F. 3d 1487, reversed and remanded.
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