266
Kennedy, J., dissenting
with Patterson and McMillan. Almendarez-Torres, however, controls the question before us.
As an initial matter, Almendarez-Torres makes clear that the constitutional doubt methodology employed by the Court today is incorrect. It teaches that the constitutional doubt canon of construction is applicable only if the statute at issue is "genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a 'fair' one." 523 U. S., at 238. For the reasons given in Part I, supra, the Court of Appeals' interpretation of § 2119 is, in my view, superior to petitioner's reading. At a minimum, the question whether 8 U. S. C. § 1326(b), the statute at issue in Almendarez-Torres, set forth sentencing factors or elements of distinct offenses was a closer one than the statutory question presented here. Yet we found insufficient ambiguity to warrant application of the constitutional doubt principle there. 523 U. S., at 238. Unless we are to abandon any pretense of consistency in the application of the principle, it is incumbent on the Court to explain how it reconciles its analysis with Almendarez-Torres.
Not only is the proper construction of the statute clearer here, but there is less reason, in light of Almendarez-Torres itself, to question the constitutionality of the statute as construed by the Court of Appeals. The insubstantiality of the Court's constitutional concern is indicated by its quite summary reference to the principle of constitutional law the statute might offend. The Court puts the argument this way: "[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Ante, at 243, n. 6. It suggests the carjacking statute violates this principle because absent a finding of serious bodily injury, a defendant may be sentenced to a maximum of 15 years' imprisonment and, absent a finding of death, he may be sentenced to a maximum of 25 years' imprisonment.
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