dissenting.
Although I agree with the majority’s resolution of the search issue, I do not agree with its determination that the Armed Career Criminal Act is merely a “sentencing enhancement” provision. Therefore, I dissent.
The majority’s selective reading of the legislative history of the statute before us leads it to the conclusion that it was the “emphatic reflections of the entire Congress not to promulgate recidivist legislation that would create a new Federal crime to be separately charged and proved at trial....” Although the majority correctly points out that several members of Congress referred to the bill as providing only for “enhanced” or “stiffer sentences for career criminals,” the intent of Congress is not nearly so clear or “emphatic” as the majority portrays it to be. The portion of the House Report quoted by the majority refers to “enhancing” the crime rather than the penalty; the report does not define the meaning of “enhancing a crime.” Although it is unclear from the passage quoted by the majority whether Congress intended to create a new substantive offense, the next page of the House Report (not quoted by the majority) sheds some light on the issue. Under the heading “Sectional Analysis,” the House Report states:
Section 2 amends 18 U.S.C. App. § 1202(a) by adding a new offense proscribing any felon who has been convicted previously of three felonies for robberies or burglaries (either Federal or State) from receiving, possessing, or transporting in commerce or affecting commerce any firearm. The sanctions are up to a $25,000 fine and a mandatory minimum 15-year sentence with no probation or parole.
H.R.Rep. No. 1073, 98th Cong., 2d Sess. 6, reprinted in 1984 U.S.Code Cong. & Admin.News 3661, 3666 (emphasis added). This language, standing alone, leads to the opposite conclusion than that reached by the majority. Additionally, the drafters of the original bill introduced in 1983 declared that “[t]he bill creates a new Federal crime of carrying a firearm ... where a defendant has two prior felony convictions for robbery or burglary.” S.Rep. No. 190, 98th Cong., 1st Sess. 3 (1983). Nothing in the legislative history indicates an intent to change the 1984 bill to a penalty-enhancer rather than a new offense. Instead, the 1983 bill was changed in 1984 to address the concern that the bill would make federal crimes of local robberies and burglaries. For a further discussion of the import of the legislative history, see Judge Gibson’s well-reasoned dissent in United States v. Rush, 840 F.2d 574, 578-80 (8th Cir.1988) (en banc) (Gibson, J., dissenting). The end result of the ambiguous legislative history is that the intent of Congress is simply not clear.
I would hold that under McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and traditional principles concerning notice and proof of crimes, the second sentence of § 1202 creates an offense the elements of which must be *1328charged in the indictment and proved in the liability portion of the criminal trial rather than simply established at the sentencing hearing.
In McMillan, Pennsylvania had adopted a new mandatory minimum sentencing statute requiring not less than five years imprisonment for a number of offenses if the defendant “visibly possessed a firearm during the commission of the offense.” All of the offenses subject to the mandatory sentencing statute (e.g., murder, rape and robbery) were already serious crimes providing for maximum sentences substantially in excess of the five year mandatory minimum for use of a firearm. The Pennsylvania legislature expressly provided that the firearms factor which triggers the minimum firearm sentence is “not an element of the crime” to be charged and proved in order to establish criminal liability but is a sentencing enhancement fact to be shown at a sentencing hearing after conviction.
The Supreme Court, 5 to 4, upheld the Pennsylvania law because “it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” 106 S.Ct. at 2418. The majority suggested, without holding, that the result would be different if “a finding of visible possession exposed them [the defendants] to greater or additional punishment.” Id. The four dissenters viewed the firearms factor as a necessary element of the offense to be charged and proved beyond a reasonable doubt under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), even though the minimum sentence remained within the maximum allowed for the crime. Therefore, it appears that all nine members of the Court would require notice in the indictment and proof beyond a reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the other elements of the offense. The majority and dissenting opinions in McMillan discuss at length the constitutional considerations and history concerning notice and proof of crimes that lead to this conclusion; I need not repeat that discussion here.
As the majority observes, six other circuits have concluded that the Armed Career Criminal Act does not create a new offense which requires notice in the indictment and proof of its elements beyond a reasonable doubt, while only the Fifth Circuit has held to the contrary, see United States v. Davis, 801 F.2d 754 (5th Cir.1986).1 However, except for a fleeting reference in United States v. Hawkins, 811 F.2d 210, 220 (3d Cir.1987), none of the decisions from other circuits mention McMillan or indicate an awareness of the principles set forth in that case. Judge Rosenn, in a cogent dissent in Hawkins, points out that the analysis in McMillan is controlling and requires notice by indictment and proof at trial because § 1202(a) “raises dramatically the minimum penalty and lacks any explicit language denominating it a sentencing factor rather than an element of the offense.” 811 F.2d at 224. The views of six circuits that the second sentence of § 1202 provides merely for “sentencing enhancement” by the court after conviction are inconsistent with the Supreme Court’s reasoning in McMillan. It seems clear under McMillan that an offense “which identifies conduct the legislature specifically intended to punish by a special sanction,” 106 S.Ct. at 2426 (Stevens, J., dissenting), must also be charged *1329if it exposes defendants to “greater or additional punishment” than the conduct in fact charged in the indictment, 106 S.Ct. at 2418 (majority opinion). The Armed Career Criminal Act requires a sentence for recidivists of not less than seven and one-half times the maximum sentence for non-recidivists. Under the principles of McMillan, the offense charged by the second sentence of § 1202 should be charged separately.
The majority’s statements concerning bifurcation do not advance its argument. The majority acknowledges that a bifurcated trial would eliminate the possible prejudice created by introducing prior convictions before the jury, but argues that Congress’s choice not to provide for bifurcation indicates that it did not intend to create a new offense. However, in light of the already confused legislative history in this case and the majority’s stated position that it is “constrained from legislating by judicial decree and recasting the intended purpose of the ACCA,” I think it is inappropriate to attempt to discern the intent of Congress from what it did not say. In light of the availability of a bifurcated trial, see Spencer v. Texas, 385 U.S. 554, 566-68, 87 S.Ct. 648, 654-66, 77 L.Ed.2d 606 (1967), and in light of the fact that many criminal statutes now require notice and proof of prior crimes as elements of the offense, see, e.g., 18 U.S.C. §§ 1961(5), 1962(c) (RICO), and 18 U.S.C. § 1737 (second offense of mailing pornography), the majority’s argument concerning the prejudicial effect of the introduction of prior felonies is not persuasive.
I agree with Judge Rubin’s opinion in Davis and the dissents of Judges Rosenn and Gibson in Hawkins and Rush. Accordingly, I would reverse the sentence imposed by the District Court and remand the case for resentencing within the maximum penalty for the crime charged in the indictment.
. In a footnote, the majority implies that the vitality of Davis is called into question by the subsequent decision in Buckley v. Butler, 825 F.2d 895 (5th Cir.1987). The majority is in error. In Davis, a three-judge panel of the Fifth Circuit carefully examined the legislative history of the ACCA and concluded that Congress intended to establish a new offense. Judge Garwood, who was on the Davis panel, wrote the opinion for a three judge panel in Buckley. Buckley involved a Louisiana statute; it was clear that the Louisiana legislature intended to create a sentencing enhancement procedure rather than a new offense. Because Davis construed the ACCA to be constitutional on its face, Buckley’s holding that the Louisiana statute was constitutional does not conflict with Davis. Judge Garwood, apparently recognizing this clear distinction, did not cite Davis in his opinion for the panel in Buckley.