Federal Sentencing Enhancements: Elements of Offense vs. Sentencing Factors
United States v. O’Brien
Firearms Sentencing: the fact that a firearm was a machine-gun is an element of the offense to be proved by a jury, – not merely a sentencing factor to be decided on by the judge.
United States v. O’Brien and Burgess 130 S.Ct. 2169
Decided May 24, 2010. Supreme Court of the United States.
Issue: Title 18 United States Code, §924(c)(1)(A)(i) carries a mandatory minimum five years prison term for the use of or possession of a firearm in furtherance of a crime of violence or drug trafficking crime. §924(c)(1)(B)(ii) provides for a minimum 30 year sentence where the weapon is a machinegun. The issue was whether, as the Government maintained, §924(c)(1)(B)(ii) (the machinegun point) was a sentencing factor so that if the respondents were convicted of use of a firearm in the course of a violent crime, the judge would then decide in the course of sentencing if the weapon was indeed a machinegun in which case the 30-year mandatory minimum would apply. The District Court ruled that the machine gun provision was an “element of the offense” to be determined by the jury; the First Circuit affirmed.
Holding: A unanimous Supreme Court decision which held that under a statute prohibiting the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime, the fact that the firearm was a machinegun was an element of the offense to be proved to the jury beyond reasonable doubt rather than a sentencing factor.
Facts: The two respondents had unsuccessfully attempted to rob a vehicle making a delivery of cash to a bank. The attempt was abandoned with no shots being fired and no injuries. The three firearms recovered by authorities were a rifle and pistol – both of which were semi-automatic, along with a Cobray pistol – the precise mechanism of which was disputed. The FBI stated that the Cobray pistol had been altered to operate as a fully automatic weapon but this was denied by the respondents.
The Government moved to dismiss the original machinegun indictment under §924(c)(1)(B)(ii) given that it would be unable to establish at trial, on the balance of probabilities that the Cobray was a machinegun according to the definition in statute. However the Government’s position was that the machinegun provision was a sentencing factor, so that if the respondents were convicted of carrying a firearm, the judge could determine at sentencing whether it was a machinegun and sentence accordingly.
The matter had already been considered in Castillo v. United States 530 U.S. 120 (2000) which concerned an earlier version of s924. In that case the Court held that the machine gun provision was an element of the offense. In 1998 the statute was redrafted and restructured and the suggestion was that the new version transformed the machinegun provision from an offense element into a sentencing factor. This argument was rejected by the Supreme Court. Who held that the principle in Castillo applied to the restructured version of §924.
Legal analysis: This was largely a clarification exercise in light of the amended version of §924. The pre-1998 draft which was in force at the time of Castillo stated in a single paragraph:
(c)(1) “Whoever, during and in relation to any crime of violence or drug trafficking crime…, uses or carries a firearm, shall, in addition to the punishment be sentenced to five years… and if the firearm is a machine gun…to imprisonment for thirty years”.
In interpreting this earlier version in Castillo the Court had already looked in detail at whether Congress intended the machine-gun point to be a sentencing factor or an offense element. One of the factors it paid considerable attention to was the language and structure of the statutory provision.
Given that there was now a marked difference in form and layout, the argument was that it was reasonable to infer that Congress intended something different with this new version. The section read:
“… any person who, during and in relation to any crime of violence… uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence…
(i) be sentenced to a term of imprisonment of not less than 5 years…
(B) if the firearm…
(ii) is a machinegun… the person shall be sentenced to a term of imprisonment of not less than 30 years.”
Apart from the layout of the new section, there were two substantive differences between the new and old versions. Firstly, the 1998 statute included reference to possession in addition to “uses or carries” and secondly the new statute provided for mandatory minimum sentences rather than mandatory sentences. The Government tried to argue that these additions, as well as the restructuring into paragraphs was a ‘clear indication’ that Congress meant to move the treatment of machineguns clearly away from the offense considerations and into the realms of sentencing. This was rejected. So far as the substantive changes were concerned, neither of these changes gave rise to a clear indication that Congress meant to alter the way the machinegun clause ought to be regarded. On the construction point, the Supreme Court regarded the restructuring as a tidying-up exercise; splitting a 250 word paragraph into a more readable form – without any indication that the intent of Congress was any different to what it had been pre-Castillo. The wording had altered but the effect was the same.