Almendarez-Torres v. United States

PETITIONER: Almendarez-Torres
RESPONDENT: United States
LOCATION: National Endowment for the Arts

DOCKET NO.: 96-6839
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 523 US 224 (1998)
ARGUED: Oct 14, 1997
DECIDED: Mar 24, 1998

Beth S. Brinkmann - Department of Justice, argued the cause for the respondent
Peter M. Fleury - Argued the cause for the petitioner

Facts of the case

8 USC section 1326(a) makes it a crime, punishable by up to two years in prison, for a deported alien to return to the United States without special permission. In 1998, Congress added subsection (b)(2), which authorizes a maximum prison term of 20 years for "any alien described" in subsection (a), if the initial "deportation was subsequent to a conviction for commission of an aggravated felony." In 1995, Hugo Almendarez-Torres pleaded guilty to violating section 1326. Ultimately, the District Court sentenced Almendarez- Torres to 85 months' imprisonment. The court rejected his argument that, because his indictment failed to mention his aggravated felony convictions, the court could not sentence him to more than the maximum sentence authorized by section 1326(a). In affirming, the Court of Appeals held that subsection (b)(2) is a penalty provision which permits the imposition of a higher sentence when the unlawfully returning alien also has a record of prior convictions.


Does subsection (b)(2) of 8 USC section 1326(a), which forbids an alien who once was deported to return to the United States without special permission, define a separate crime?

Media for Almendarez-Torres v. United States

Audio Transcription for Oral Argument - October 14, 1997 in Almendarez-Torres v. United States

William H. Rehnquist:

We'll hear argument next in Number 96-6839, Hugo Roman Almendarez Torres v. The United States.

Mr. Fleury.

Peter M. Fleury:

Mr. Chief Justice and may it please the Court:

Title 8, section 1326(a), provides for a 2-year maximum penalty if these facts are proved: 1) a deportation, and 2) a reentry without a deport... without permission.

Title 8, 1326(b)(2), on the other hand, sets a punishment of up to 20 years if these facts are proven: 1) a deportation, 2) a reentry without permission, and 3) an aggravated felony conviction which occurred prior to the deportation.

The issue presented is, did Congress intend for 1326(b) to be a sentence provision or a separate offense?

The starting point, of course, is the plain language of the statute.

There are three very important factors which plainly indicate that subsection (b) incorporates by reference the conduct described in subsection (a) rather than setting forth the sentence for a conviction in subsection (a).

The first phrase that helps us is 1326(b).

It says... is in 1326(b) which says, in the case of any alien described in such subsection, and then it says, in that case if the person has a prior aggravated felony, he'll be facing a 20-year maximum.

It specifically does not say, in the case of any alien convicted in such subsection and, as this Court said in the Sedima case, when Congress intended that the defendant had been previously convicted, it said so by using explicitly words like convicted or conviction.

Here we have no such word, so what subsection (b) does is incorporate by reference the conduct set forth in subsection (a), that you have to have a deportation and a reentry without permission.

William H. Rehnquist:

But you could also say that the person described in subsection (a) shall be fined under title 18 or imprisoned not more than 2 years or both.

It's describing that.

Peter M. Fleury:

That's describing the result of the process, not the person in subsection (a).

William H. Rehnquist:

But it's in subsection (a), is it not?

Peter M. Fleury:

That is in subsection (a), but if you take that clause that I just read, the person described in subsection (a), and you add to it the clause that precedes it, where it says, notwithstanding subsection (a), which the Government itself concedes as a must, that that means despite subsection (a), which--

Sandra Day O'Connor:

Well, doesn't that very clause naturally refer to the... to your maximum penalty in (a)--

Peter M. Fleury:



Sandra Day O'Connor:

--Notwithstanding that penalty, here's another penalty if these facts are--

Peter M. Fleury:

--You have to re add words to the statute to get to that result, which is the opposite--

Sandra Day O'Connor:

--Well, I don't think so.

I mean, I think it's a pretty normal reading, and I think we're... another factor is that the titles to subsection (b) make reference to penalties, and all the amendments to it refer to penalties.

They don't refer to a new separate crime.

I don't know why those aren't indicators for us that this really is a sentence enhancement.

Peter M. Fleury:

--First, as to the notwithstanding question, if subsection (b) was to be a penalty or a sentence for subsection (a), it's the opposite word that you would use.

You would say, the penalties in subsection (a) are a result of the conviction... I mean, the penalties in subsection (b) are a result of the conviction in subsection (a), not, notwithstanding or despite the conviction in subsection (a).

It's the opposite signal one would give to say that (b) flows from or is a result of (a).

Secondly, as to the word penalty, the word penalty by itself is a very little evidence that what Congress intended was a sentence provision.