Machinegun provision with thirty-year mandatory minimum is element of offense

By Anna Christensen
on May 26, 2010 at 11:00 pm

Below, Alexandra Lampert of Stanford Law School recaps Monday’s opinion in United States v. O’Brien and Burgess.  [Howe & Russell and Akin Gump represented respondent O’Brien in the case, but Alexandra was not involved in the proceedings.]  Check the O’Brien and Burgess (08-1569) SCOTUSwiki page for additional information.

On Monday, the Court unanimously held that the machinegun provision of 18 U.S.C. § 924(c)(1)(B)(ii), which imposes a thirty-year mandatory minimum sentence when the firearm used in certain crimes is a machinegun, is an element of the offense that must be proved to the jury beyond a reasonable doubt, rather than a sentencing factor to be proved to the judge at sentencing.  [You can read Leif Overvold’s preview of the case and recap of oral argument here and here.]

Justice Kennedy’s opinion, which was joined by all of the Justices except Justice Thomas, affirmed the decision of the First Circuit below.  In so holding, the Court avoided questions of the constitutionality of mandatory minimum sentencing factors and instead relied on its statutory analysis in Castillo v. United States (2000), in which it had held that the machinegun provision in an earlier version of Section 924(c) (carrying a mandatory thirty-year determinate sentence) was an element of the offense.  Congress amended this statute in 1998, leading the government to argue that the “profound changes” made by Congress – which included reorganizing the location of the machinegun provision, converting the determinate sentences to mandatory minimums, adding new provisions attaching mandatory minimum sentences to brandishing and discharging a gun, and clarifying that the statute reached gun possession in addition to use – reflected Congress’s intent to convert the machinegun provision into a sentencing factor. The Court rejected that argument, instead characterizing the changes as simply organizational in line with modern legislative drafting guidelines.  Indeed, the Court noted, the government had even argued as much in its briefs in Castillo.

Moreover, the Court continued, the amendments did not substantially change its analysis of Congressional intent in Castillo. Reviewing each of the five factors analyzed in Castillo, the Court again deemed the statute’s legislative history inconclusive. And three other factors—“tradition, . . . risk of unfairness, . . . [and] severity of the sentence”—“continue[] to favor the conclusion that the machinegun provision is an element of an offense.” First, just as when the Court decided Castillo, “characteristics of the offender, such as recidivism, cooperation with law enforcement, or acceptance of responsibility, are traditionally treated as sentencing factors,” whereas characteristics of the offence – such as the type of firearm – are traditionally treated as an offense element. Second, Castillo’s analysis of the unfairness factor was unchanged: a judge’s finding of weapon type might unfairly conflict with the jury’s if the machinegun provision was a sentencing factor. Third, the Court rejected the government’s argument that the amended statute should be interpreted differently under the severity factor than in Castillo. The Court downplayed the importance of the theoretical difference between determinate sentences and mandatory minimums, and instead looked to practical implications.  And in practice, no defendant had been sentenced to anywhere as long as thirty years absent a machinegun finding, thereby demonstrating the sentence’s severity.

Finally, though the language and structure of the statute had changed, the Court concluded that these changes could not overcome the presumption that “Congress does not enact substantive changes sub silentio,” especially in light of the “overwhelming weight” of the other four Castillo factors. In the Court’s view, even Congress’s creation of a separate subsection for the machinegun provision, much like the brandishing provision that the Court held to be a sentencing factor in Harris, did not provide a sufficiently “‘clear indication’ that Congress meant to alter its treatment of machineguns as an offense element.” If Congress wished to treat firearm type as a sentencing factor, it could have listed it in the same subparagraph as the brandishing provision:  (A) rather than (B).

Justice Stevens filed a concurring opinion, while Justice Thomas concurred in the judgment.   Both Justices would have decided the case on constitutional grounds and overruled Harris v. United States (2002), in which the Court held that a provision in Section 924(c) which imposed a seven-year mandatory minimum for brandishing a firearm was a statutory factor that could be determined by a judge by a preponderance of the evidence.  Justice Thomas would have directly overruled Harris; in his view, the Constitution requires a jury to decide a sentencing fact beyond a reasonable doubt when it alters the “statutorily mandated sentencing range, by increasing the mandatory minimum sentence . . . [or] the statutory maximum penalty.”  Justice Stevens expressed his “full agreement” with Justice Thomas and explained that in his view, McMillan v. Pennsylvania (1986) – which first upheld mandatory minimums as sentencing factors –was both wrongly decided and inconsistent with the Court’s decision in Apprendi v. New Jersey.