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Mandatory minimums and automatic weapons

Below, Leif Overvold of Harvard Law School previews United States v. O’Brien and Burgess, which will be argued on Tuesday, February 23.  Check the O’Brien and Burgess (08-1569) SCOTUSwiki page for additional updates.  [Note:  Although Akin Gump and Howe & Russell represent one of the respondents in the case, Leif was not involved in the case.]

In United States v. O’Brien and Burgess, the Court will once again enter the tangled field of sentencing law, this time to interpret 18 U.S.C. § 924(c), which criminalizes the use or carrying of a firearm in the commission of a crime of violence or drug trafficking and which has been the subject of several decisions since it was amended in 1998 to clarify that it extended to “mere” possession of a firearm. The case involves the sentence enhancement for the use of a “machinegun”: Section 924(c)(1)(B)(ii) requires a thirty-year minimum sentence rather than the five years imposed for an ordinary violation of § 924(c). Having interpreted the pre-1998 version of this provision in Castillo v. United States (2000), the Court again must decide whether firearm type is a sentencing factor or instead an element of an aggravated offense that must be proved to a jury beyond a reasonable doubt.

The case arose out of an attempted armed robbery by three men, Martin O’Brien, Arthur Burgess, and Dennis Quirk, two of whom are respondents in the case as it comes to the Court. At their trial in federal court, there was a dispute regarding the guns that the defendants carried during the crime, and specifically one in particular, a pistol which, the FBI later determined, had been modified to function as a fully automatic weapon. The government charged possession of the pistol in two counts under Section 924(c): Count Three charged use of a firearm in a crime of violence, while Count Four specifically charged use of a machinegun under Section 924(c)(1)(B)(ii). Before trial, the district judge held that firearm type was an element of an aggravated offense, such that the thirty-year mandatory minimum could only be imposed if machinegun status were charged separately. Because the government conceded that it could not prove the defendants knew the pistol was a machinegun, it dropped Count Four, and the defendants pled guilty to the remaining charges, including Count Three. At sentencing, the government renewed its claim that firearm type was a sentencing factor, but the court again rejected the argument and found that the defendants were not subject to the thirty-year mandatory minimum.

The government appealed the decision to the First Circuit, which affirmed “with misgivings.” Writing for the panel, Judge Boudin acknowledged a circuit split, with the weight of authority finding that firearm type was a sentencing factor. Although the court agreed that such an interpretation was, “in a vacuum,” supported by the language and structure of the statute, it deemed itself bound by the Court’s decision in Castillo notwithstanding the 1998 revisions to the statute.  Arguing that the First Circuit decision demonstrated that the circuit split was now entrenched, the government sought certiorari, which the Court granted on September 30, 2009.

Arguing for reversal, the government first focuses on the statute’s text and structure as the key indicators of congressional intent. The government emphasizes that, under Section 924(c)(1)(B), the thirty-year mandatory minimum applies to those “convicted of a violation of this subsection,” and if the provision is triggered a violator “shall be sentenced” to the thirty-year term; in the government’s view, this indicates that firearm type was intended as a sentencing factor for someone who has already been convicted of a Section 924(c) violation. Further, the structure of Section 924(c) – which contains a “lengthy principal paragraph” followed by separate subsections – raises a presumption, set out by Harris v. United States (2002) in its construction of Section 924(c)’s “brandishing” provision, that the principal paragraph identifies the elements of a crime, while the subsections set out sentencing factors. The location of the firearm-type provision directly between subparagraphs that are understood as setting out sentencing factors only reinforces this presumption.

The government next asserts that the additional factors identified as relevant in Castillo now militate in favor of finding firearm type to be a sentencing factor. First, although in the view of the Castillo Court there was no tradition of treating firearm type as a sentencing factor when the original version of this subsection was enacted, by 1998 the Sentencing Guidelines reflected such a tradition. The provision also now provides for mandatory minimums, which are more traditionally associated with sentencing factors than the pre-1998 version’s determinate sentences.  Moreover, although firearm type may increase the length of a defendant’s sentence, that does not make it an element, as it only raises the mandatory minimum to which a defendant is subject. Further, although the legislative history is silent on this question, the change in the structure of the statute and the switch to mandatory minimums suggest that Congress intended to set out sentencing factors. Finally, the policy reasons for treating firearm type as a sentencing factor are sound:  the firearms in question pose a serious danger, and the sentencing framework established allows for consistent and streamlined application of the enhancement while maintaining the accuracy of fact-finding.

In their briefs on the merits, respondents O’Brien and Burgess begin by questioning whether a determination on this issue will even resolve the case, as there has been no factual finding on machinegun status and the mens rea requirement remains unsettled.  Moreover, they assert, the Court’s decision in Castillo remains controlling even though it postdated the amendments, as there is no suggestion that the amendments to the statutory language construed in Castillo were intended to affect this question.  However, even a fresh interpretation of the statute would lead to the same result. In respondents’ view, the textual provisions emphasized by the government do not establish its preferred reading, while the structural changes made in 1998 simply reflect a general trend in how statutes are written rather than Congress’s intent to change the provision’s meaning. Further, the tradition of treating firearm type as an element, the six-fold increase in the mandatory-minimum sentence provided by this provision, and the absence both of unfairness in having a jury decide this issue and of legislative history on the question all continue to suggest that firearm type is an element rather than a sentencing factor.

Finally, O’Brien and Burgess argue that the government’s reading of the statute raises substantial constitutional questions. First, the Court’s Apprendi doctrine arguably applies to the factfinding at issue. Although the machinegun provision only raises the mandatory minimum to which one is subject for a violation of this subsection, a factual finding that the firearm is a machinegun is necessary for a sentence of at least thirty years to be reasonable under the Sentencing Reform Act. Thus, to the extent that the fact is necessary to permit the sentence to be imposed, the Sixth Amendment requires a jury to find it. Given the increase in the minimum sentence that results from such a finding, the government’s reading also violates the Fifth Amendment’s Due Process Clause because the sentencing factor would form such a major part of the sentence that “the tail would wag the dog” of the substantive offense, and the prosecution’s burden of proof would thus be unconstitutionally diluted.

In its reply brief, the government defends the constitutionality of its reading of the statute. It emphasizes that the Court has repeatedly refused to apply its Sixth Amendment doctrine to facts that merely increase the mandatory minimum sentence, a distinction on which federal and state governments have relied. Moreover, it argues, O’Brien and Burgess failed to argue below that a finding on firearm status was necessary to render a thirty-year sentence reasonable; reasonableness review does not generate a predictable maximum sentence on which an offender might have relied; there is no historical practice of requiring a jury to find such facts; and the respondents’ proposed approach would be unworkable. Further, the Court has never held that allowing judges to find facts that increase a sentence within an already authorized range dilutes the prosecution’s burden under the Fifth Amendment and – in any case – the sentencing factor does not “overshadow” the offense here. Finally, the Court should refuse to consider respondents’ arguments regarding the unsettled nature of the mens rea requirement, but if it does consider them, the fact that firearm possession was illegal in this case regardless of the weapon’s status suggests that specific knowledge need not be shown for the subsection to apply.