dissenting:
Because I believe that the majority incorrectly classifies 8 U.S.C. § 1326(b) as a sentencing enhancement statute rather than a separate offense, I respectfully dissent. Rather than accepting the majority’s reasoning, I adopt the analysis of two other courts that have addressed this precise issue. See United States v. Campos-Martinez, 976 F.2d 589, 590-92 (9th Cir.1992); United States v. Vieira-Candelario, 811 F.Supp. 762, 765-68 (D.R.I.1993).1 In those two cases, the courts held that § 1326(b) created a separate offense, which requires the Government to allege and prove beyond a reasonable doubt all of the elements of that offense in the indictment before a defendant may be sentenced under § 1326(b)’s separate penalties.2
In the instant case, the indictment charged Vasquez-Olvera as follows:
On or about December 6, 1990, ... JOSE BLAS VASQUEZ-OLVERA, ... an alien who had previously been deported, knowingly and unlawfully was found in the United States at Harris County, Texas, the said defendant having not obtained the consent of the Attorney General of the United States for reapplieation by the defendant for readmission into the United States.
The indictment then specified: “[vjiolation: Title 8, United States Code, Section 1326.”
As the majority correctly observes, what is at issue is whether the additional matter in subsection (b) of § 1326 — the requirement that the alien must have been deported “subsequent to a conviction” of a felony or aggravated felony — is a separate “element,” thus creating a separate offense from § 1326(a), or is simply a sentencing enhancement factor applicable after conviction under § 1326(a).3 Vasquez-Olvera argues that because he was indicted for, and pled guilty to, nothing more than “simple reentry” after deportation, the district court unlawfully sentenced him under § 1326(b) rather than under § 1326(a). I agree.
As the majority correctly observes, in this circuit, the leading case on distinguishing the two .types of statutes is United States v. Davis, 801 F.2d 754 (5th Cir.1986). In Davis, we noted a number of factors that are *948helpful in identifying a sentencing enhancement statute:
i) whether the statute “impose[s] an increased punishment for those convicted under another statutory provision”;
ii) whether the statute’s penalty is simply a “multiplier” of another statute’s penalty provision;
iii) whether the statute is titled as a “sentencing” or “penalty” provision; and
iv) whether there are separate procedures for sentencing under the statute.
Davis, 801 F.2d at 756.4 The Davis court, in keeping with general principles of statutory interpretation, also held that the legislative history may be consulted to determine Congress’ intent where the language of the statute is ambiguous. Id. The majority concludes that three of the four Davis factors apply — (i)-(iii)—and thus holds that Vasquez-Olvera was properly sentenced under § 1326(b).
I believed that the majority errs in holding that the first three Davis factors are clearly applicable. The majority states that the first factor applies because § 1326(b) simply refers back to § 1326(a) — that is, only after the three elements of subsection (a) are proven may an enhanced sentence possible under subsection (b) be imposed in the ease of an alien whose original deportation was “subsequent to the commission of a felony.” In support of its position, the majority points to the first clause of each subsection, which read, respectively, “(a) Subject to subsection (b) of this section ...” and “(b) Notwithstanding subsection (a) of this section ...” (emphasis added). The majority states that Congress “intertwined” the two subsections, suggesting that subsection (b) is dependent on subsection (a). Majority Opinion, at p. 945.
I believe that, while the majority’s interpretation is a permissible one, there is another, equally permissible interpretation of the statute. I believe that the drafters of the 1988 amendments to § 13265 could have intended simply to incorporate the three elements of § 1326(a) into § 1326(b) and simply add the additional element regarding a prior conviction of a felony or aggravated felony.6 See Vieira-Candelario, 811 F.Supp. at 767. In this regard, I observe that subsection (b) states that it appears “in the case of any alien described in" subsection (a). It does not say “in the case of any alien convicted of” the offense set forth in subsection (a). I further believe that the use of the phrase “[njotwithstanding subsection (a),” if anything, argues in favor of holding that the drafters of subsection (b) intended it to be a separate offense.7
As for the second Davis factor, the majority holds that the enhanced sentencing range in subsection (b) may be interpreted to be “multipliers” of the sentencing range prescribed in subsection (a). See Majority Opinion at p. 945. I disagree. Common sense suggests that a “multiplier” in the context of a sentencing enhancement statute generally refers to an increase by two or three fold at the most. However, the potential for such a draconian increase under subsection (b)— from a maximum of two to fifteen years, i.e., over a seven-fold increase — suggests that a separate offense was intended. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, *949the Court suggested that in eases where a certain sentencing fact is a “tail which wags the dog of the substantive offense” in terms of the severity of the sentence, the reasonable-doubt standard of proof rather than preponderance standard — -the latter typically being used during the sentencing phase— should be required because that sentencing fact is in effect an element of the offense. Id. at 88, 106 S.Ct. at 2417.
The majority believes that the third Davis factor — whether the title of the statute suggests that it is a sentencing enhancement provision — also has been established by the Government. The same argument was made by the Government in Vieira-Candelario, 811 F.Supp. at 767. In a persuasive opinion, the court rejected the Government’s argument by holding that the statute’s title “is, at best, ambiguous.” Id. I agree. Section 1326 is entitled, “Reentry of deported alien; criminal penalties for reentry of certain deported aliens.” The majority accepts the Government’s argument that the single crime provided for — “[rjeentry of deported aliens” — means that the statute’s drafters must have intended subsection (b) only to be a penalty enhancement provision. Majority Opinion, at p. 945. While again I agree that is certainly a permissible interpretation of the statute’s title, I believe that the bifurcated structure of § 1326 and the apparent incorporation of subsection (a)’s elements into subsection (b) also suggest that Congress intended the broad title of offense — “[r]een-try of deported aliens” — to apply to both subsections (a) and (b). Moreover, the majority ignores the fact that Congress could have easily titled subsection (b) as a separate penalty provision, which it chose not to do; the failure to do so is noteworthy. Instead, it apparently incorporated subsection (a)’s elements into subsection (b), suggesting that subsection (b) was intended to be independent of subsection (a).
Thus, having applied the Davis factors, it is quite apparent that the language and structure of § 1326 provide no definitive answer to whether subsection (b) was intended to be a penalty enhancement statute or a separate offense. As the majority notes, there is no legislative history to which we could turn for clarification of an ambiguous statute.8 Thus, we are faced with a classic case where the longstanding “rule of lenity” is appropriately applied. Simply put, that rule provides that “ambiguities in criminal statutes must be resolved in favor of lenity” for the criminal defendant. United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct. 209, 213, 3 L.Ed.2d 199 (1958) (“Neither the wording of the statute nor its legislative history points clearly to either [of two permissible] meaning[s]. In that circumstance, this Court applies a policy of lenity and adopts the less harsh meaning.”); see also United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820); United States v. Abreu, 962 F.2d 1447, 1450-51 (10th Cir.1992) (en bane) (discussing Supreme Court authority on “rule of lenity”); Annotation, 62 L.Ed.2d 827.
Because I believe that this is an appropriate case for application of the “rule of lenity” to an ambiguous statute with no clarifying *950legislative history, I respectfully dissent. I would vacate Vasquez-Olvera’s sentence and remand with instructions that the district court must sentence him only under 8 U.S.C. § 1326(a).
. I observe that in a recent case the First Circuit expressly noted this issue but saw no need to resolve it. See United States v. Zapata, 1 F.3d 46, 50 n. 5 (1st Cir.1993) (citing Vieira-Candelario, supra).
. It is well-established that the Government must include all elements of an offense in the indictment and prove each element beyond a reasonable doubt. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see also Jill C. Rafaloff, Note, The Armed Career Criminal Act: Sentence Enhancement Statute or New Offense?, 56 Fordham L.Rev. 1085, 1087 & nn. 10-13 (1988) (citing cases).
. See Majority Opinion at p. 944, for a full quotation of subsections (a) and (b).
. Davis adopted those four factors from the United States Supreme Court's decision in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Garrett involved the analogous issue of distinguishing between a separate offense or lesser-included offense for purposes of the Double Jeopardy Clause.
. In 1988, Congress amended § 1326 by adding what is presently in subsection (b) and bifurcating the statute. See Majority Opinion, at 945 n. 4.
. Under the plain language of § 1326(a), the elements of that offense are: i) an arrest and deportation or exclusion and deportation, ii) reentry or attempted reentry into the United States, and iii) the absence of consent by the United States Attorney General. United States v. Campos-Asencio, 822 F.2d 506, 508 (5th Cir.1987) (interpreting § 1326 prior to its bifurcation into subsections (a) and (b), when the entire statute was what is presently subsection (a)).
.Although the use of the phrase "subject to” in subsection (b) admittedly could be interpreted to suggest that subsection (b) is a penalty enhancement, the ambiguity of the statute as a whole requires the application of the "rule of lenity,” discussed infra.
. I agree with the Ninth Circuit's view that the fact that a previous conviction is a separate element under 8 U.S.C. § 1325 — § 1326's sister statute regarding illegal entry of aliens — is some indication that § 1326(b) was intended to be a separate offense by the statute’s drafters. See United States v. Campos-Martinez, 976 F.2d 589, 591 (9th Cir.1992). It is well-established that a court may interpret an ambiguous statute by comparison to an analogous statute. See United States v. Abreu, 962 F.2d 1447, 1451 (10th Cir.1992) (en banc) (citing United States v. American Tracking Ass'ns, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940)).
In a footnote, the majority, with no discussion, states that it does not believe that a prior conviction is a separate element under § 1325. See Majority Opinion at p. 947 n. 8. My research reveals that the only other authority regarding this issue is a series of Ninth Circuit cases, which hold that a prior conviction is a separate element under § 1325. See United States v. Equihua-Juarez, 851 F.2d 1222, 1226 (9th Cir.1988) (citing cases). Without going into an extended discussion here, my application of the Davis factors to § 1325 indicates that the Ninth Circuit’s interpretation is correct.