Below, Harvard Law School’s Leif Overvold recaps Tuesday’s oral argument in United States v. O’Brien and Burgess. Leif’s earlier preview of the case is available here. For more information, check the O’Brien and Burgess (08-1569) SCOTUSwiki page.

At oral argument in United States v. O'Brien and Burgess, the Court and the parties focused on questions of both statutory interpretation against the backdrop of the Court's 2002 decision in Castillo v. United States and application of the Court's post-Apprendi Sixth Amendment jurisprudence to the case at hand.

Arguing for petitioner, Assistant to the Solicitor General Benjamin Horwich opened by focusing on the text of Section 924(c), and early questions from Justices Scalia and Sotomayor shared this emphasis. Justice Scalia pressed Mr. Horwich on where in the statute it indicated the maximum allowable sentence was a life term. While Mr. Horwich suggested in his rebuttal that similar language in the Armed Career Criminal Act had been so construed, his initial attempts to argue that the existence of mandatory minimum sentences implied this maximum met with skepticism from Justices Scalia, Ginsburg, and Sotomayor. Justice Scalia suggested that the statute could be best understood as mandating specified "add-ons" to the sentence for the underlying substantive crime, with Mr. Horwich stressing in response that Section 924(c) provides a separate sentence for a separate offense.

Justices Breyer and Ginsburg both at various points asked what changes to the statute reflected Congress's intent with the 1998 amendments to Section 924(c) to make firearm status a sentencing factor rather than an element, as Castillo held. The government highlighted as key differences the switch from determinate sentences to mandatory minimums, the suggestion in the phrase "convicted of a violation" that firearm type is considered only after a person is convicted of violating Section 924(c), and the structural change separating out the crime's elements from provisions the government argues are sentencing factors. Chief Justice Roberts noted that the changes identified were all "pretty subtle ways" for Congress to indicate its intent in this regard.

Finally, Justice Breyer outlined the case's broader potential implications, noting that in Harris v. United States (2002) he had agreed that the Apprendi doctrine should cover mandatory minimums but nevertheless provided the deciding vote for the contrary result based on continuing disagreement with Apprendi. Suggesting a need on his part to accept Apprendi "at some point," he asked if re-argument would be necessary were the Court to consider overruling Harris and McMillan v. Pennsylvania (1986). Mr. Horwich disputed the need for such a step but agreed that re-argument would be necessary in that event.

The case's constitutional implications remained a theme in Jeffrey L. Fisher's argument for respondents. Mr. Fisher began by noting the significant increase in sentence mandated for use of a machinegun and the dearth of evidence of Congress's intent to make firearm type a sentencing factor. Justice Kennedy asked, regarding the increase in sentence length, how the Court could draw a principled line as to what level of increase is too great to arise from a sentencing factor. Mr. Fisher provided what he described as such a "general principle":  whether a sentence could have been given without the fact in question and upheld as reasonable under the Sentencing Reform Act. He further claimed that the government's reading of the statute posed deeper due process concerns going back to McMillan, in that a legislature cannot manipulate a statute to impermissibly dilute the prosecution's burden of proof. In response to Justice Sotomayor's question on how to find such manipulation, he suggested Congress's intent and the effect of making possible a sentence that could not have been imposed otherwise are the relevant considerations. Mr. Fisher further focused on the traditional treatment of firearm type as an element, a tradition that Castillo supports even if it does not, as Chief Justice Roberts noted, necessarily resolve this case. He closed by emphasizing that the Court could decide for respondents on either statutory or constitutional grounds, and he argued that respondents had preserved the relevant arguments.

During Mr. Horwich's short rebuttal, Justice Breyer asked whether there was evidence outside the statute of intent to make firearm type a sentencing factor; in Justice Breyer's view, the changes to the statutory text and structure could best be understood as a response to Bailey v. United States (1995), to ensure that the statute covered possession of a firearm, with some additional stylistic changes but without consideration of the issue before the Court in this case. Mr. Horwich conceded there was no legislative history in support of the government's position but pointed to the addition of the "convicted of a violation" language as indicative of the relevant intent.

Posted in U.S. v. O'Brien, Merits Cases, Uncategorized