In the case of Almendarez-Torres v. United States in 1997, Hugo Roman Almendarez-Torres was a Mexican citizen and legal U.S resident who pleaded guilty to federal charges for returning to the U.S after being deported due to convictions on three serious crimes. The issue before the Supreme Court was whether an increase in maximum penalty based on prior convictions should be treated as a sentencing factor or as an element of aggravated felony that must be charged in indictment, submitted to jury, and proven beyond reasonable doubt. In a 5-4 decision, the court ruled that it is constitutional for judges rather than juries to decide if defendants have previous convictions which can lead longer sentences under federal law. This ruling held that recidivism (the tendency of convicted criminals to reoffend) is not an offense element subjecting it to proof beyond reasonable doubt but rather a traditional basis for increasing sentence.

In the dissenting opinion for Almendarez-Torres v. United States, Justice Scalia argued that the defendant's prior convictions should be treated as elements of his offense rather than sentencing factors. He contended that this interpretation was more consistent with both constitutional principles and statutory text. According to him, treating prior convictions as sentencing factors allowed judges to make determinations about a defendant's guilt or innocence based on facts not presented to a jury, which violated the Sixth Amendment right to trial by jury. Furthermore, he asserted that Congress did not clearly indicate in its legislation whether it intended for these facts to be considered during sentencing or at trial; thus, any ambiguity should have been resolved in favor of preserving traditional procedural protections for defendants.