00-10666 Harris v. United States

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The prohibition’s structure suggests that brandishing and discharging are sentencing factors. Federal laws usually list all offense elements in a single sentence and separate the sentencing factors into subsections. Castillo v. United States, 530 U.S. 120, 125. The instant statute’s lengthy principal paragraph lists the elements of a complete crime. Toward the end of the paragraph is the word “shall,” which often divides offense-defining provisions from sentence-specifying ones. Jones v. United States, 526 U.S. 227, 233. And following “shall” are the separate subsections, which explain how defendants are to “be sentenced.” Thus this Court can presume that the principal paragraph defines a single crime and its subsections identify sentencing factors.

Reaffirming McMillan and employing the approach outlined in that opinion, the Court concludes that º924(c)(1)(A)(ii) is constitutional. Basing a 2-year increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the Fifth and Sixth Amendments’ requirements. Congress simply dictated the precise weight to be given to one traditional sentencing factor. McMillan, supra, at 89-90.

243 F.3d 806, affirmed.

Local effect:

The decision does not affect Seventh Circuit law, which holds that mandatory minimums are not implicated by Apprendi. U.S. v. Watts, 236 F.3d 630 (7th Cir. 2001).

Kennedy, J.; O’Connor, J., concurring; Breyer, J., concurring in part and concurring in the judgment; Thomas, J., dissenting.