Facts of the Case

William Harris, who sold illegal narcotics at his pawnshop with an unconcealed semiautomatic pistol at his side, was convicted for violating 18 USC section 924(c)(1)(A), which provides that a person who in relation to a drug trafficking crime uses or carries a firearm "shall, in addition to the punishment for such crime...if the firearm is brandished, be sentenced to...not less than 7 years." When his presentence report recommended that he receive the 7-year minimum sentence, Harris objected, arguing that brandishing was an element of a separate statutory offense for which he was not indicted or convicted. The District Court found that Harris had brandished the gun and sentenced him to seven years in prison. In affirming, the Court of Appeals found that McMillan v. Pennsylvania, 477 U.S. 79, in which the U.S. Supreme Court sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, foreclosed his argument that if brandishing is a sentencing factor, the statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466.

Question

Is McMillan v. Pennsylvania, 477 U.S. 79, valid after the U.S. Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466?

Conclusion

Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that section 924(c)(1)(A) defines a single offense, in which brandishing a firearm is a sentencing factor to be found by the judge, not an offense element to be found by the jury. Reaffirming McMillan, the Court also concluded that section 924(c)(1)(A) is constitutional because basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the requirements of neither the Fifth and Sixth Amendments nor Apprendi. "Apprendi's conclusions do not undermine McMillan's. There was no comparable historical practice of submitting facts increasing the mandatory minimum to the jury, so the Apprendi rule did not extend to those facts," wrote Justice Kennedy.