08-1569 U.S. v. O’Brien

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Criminal Procedure
Right to jury trial; sentencing

The fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing.

Given the Court’s determination in Castillo that the machinegun provision in §924’s prior version is an element, a substantive change in the statute should not be inferred “[a]bsent a clear indication from Congress of a change in policy,” Grogan v. Garner, 498 U. S. 279, 290. Nothing in the 1998 amendment indicates such a change. There are three principal differences between the previous and current §924(c). The first, a substantive change, shifts what were once mandatory 5-year and 30-year sentences to mandatory minimum sentences. The second, also substantive—made in direct response to the holding in Bailey v. United States, 516 U. S. 137, that “uses or carries” in §924’s preamendment version connotes “more than mere possession,” id., at 143—adds “possesses” to the “uses or carries” language in §924(c)’s principal paragraph and provides sentencing enhancements for brandishing or discharging the firearm, §§924(c)(1)(A)(ii) and (iii), which do state sentencing factors, Harris v. United States, 536 U. S. 545, 552?556. Neither of these substantive changes suggests that Congress meant to transform the machinegun provision from an element into a sentencing factor. The third difference is the machinegun provision’s relocation from the principal paragraph that unmistakably lists offense elements to a separate subsection, §924(c)(1)(B), but this structural or stylistic change provides no “clear indication” that Congress meant to alter its treatment of machineguns as an offense element. A more logical explanation is that the restructuring was intended to break up a lengthy principal paragraph, which exceeded 250 words, into a more readable statute, which is in step with current legislative drafting guidelines. While this Court has recognized that placing factors in separate subsections is one way Congress might signal that it is treating them as sentencing factors rather than elements, Castillo, supra, at 124?125, it has rejected the view that such a structural consideration predominates even when other factors point in the other direction, Harris, supra, at 553. The current structure of §924(c) is more favorable to treating the machinegun provision as a sentencing factor than was true in Castillo, particularly because the machinegun provision is now positioned between the sentencing factors provided in (A)(ii) and (iii) and those in (C)(i) and (ii). This structural point is overcome by the substantial weight of the other Castillo factors and the principle that Congress would not enact so significant a change without a clear indication of its purpose to do so.

542 F. 3d 921, affirmed.

08-1569 U.S. v. O’Brien

Kennedy, J.; Stevens, J., concurring; Thomas, J., concurring.

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