UNITED STATES v. O'BRIEN

Transcript: 

ORAL ARGUMENT OF BENJAMIN HORWICH ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 08-1569, United States v. O'Brien.

Mr. Horwich.

Mr. Horwich: Mr. Chief Justice, and may it please the Court: Section 924(c)(1) starts by defining a single crime of using or carrying a firearm during and in relation to a crime of violence or a drug trafficking crime.

Next, it addresses sentencing, and it does that by giving the judge some rules to channel his discretion in particular cases, and among those is a requirement that a, quote, "person convicted of a violation".

"shall be sentenced" to a greater minimum sentence when the firearm is of a particular type.

And--

Justice Antonin Scalia: Well wait.

There's -- there's some sentencing stuff in -- in the first part as well.

There's sentencing stuff in (A).

You can't say that (A) deals only with elements and (B) deals with sentencing.

Mr. Horwich: --Well, no, and, of course--

Justice Antonin Scalia: I mean, (A) says,

"shall be sentenced to 5 years. "

Or to 7 years, or to 10 years.

So there's sentencing stuff in (A).

Mr. Horwich: --Well, I agree with you that the phrase (A) as well.

To the extent a statute is going to direct a particular sentence, it's going to use those words.

But I think the -- we're relying a lot more on the language in the beginning of subparagraph (B), that says,

"if the firearm possessed by a person convicted of a violation. "

which necessarily presupposes, then, that there has been a conviction--

Justice Antonin Scalia: So does -- so does the language of (A)(ii) and (A)(iii), which is the same language: "if the firearm is brandished"; "if the firearm is discharged" -- they all apply to a conviction for carrying the firearm.

There has to be a conviction before those things apply.

Mr. Horwich: --Well, I agree.

That's true.

That is certainly an accurate statement--

Justice Antonin Scalia: So that makes (A) the same as (B).

And -- and you don't claim that the elements in (A) are just sentencing elements, do you?

Mr. Horwich: --Well, I certainly don't claim that they -- that the elements in the principal paragraph of (A) are.

The point I'm -- the point I'm trying to make is that, with respect to firearm type, which is at issue here, is that the firearm type provisions are introduced by specific language that says -- that tells the reader these are relevant to a person convicted of a violation; these are not relevant to whether--

Justice Sonia Sotomayor: No, but you're forgetting the words of this subsection.

I mean--

Mr. Horwich: --Well--

Justice Sonia Sotomayor: --the subsection would be (B) itself.

If you're convicted of carrying a machinegun, you get -- I'm sorry -- a short-barrel rifle, et cetera, you get 10 years.

If it's a machinegun, you get 30.

What's -- what's irrational about reading the statute that way when it uses the word "subsection"?

It didn't use "subparagraph".

Mr. Horwich: --Well, I agree it doesn't use "subparagraph".

And 924(c) as a whole.

But -- but looking to the word "this subsection", Justice Sotomayor, is not -- is not useful for distinguishing among the elements and the sentencing factors, because of course there are, I think -- certainly this Court's holding in Harris says that the brandishing and the discharge provisions are sentencing factors.

They are part of this subsection.

All the courts of appeals have held, and it's the entirely natural inference of the recidivism provisions in subparagraph (C), which is also part of this subsection, are -- are themselves sentencing factors.

So saying that something is in this subsection means that it might be part of a violation doesn't actually answer what is or is not part of the violation versus--

Justice Antonin Scalia: But still and all, if -- if Congress were being precise and if the statute is to be read the way you suggest, the introduction to capital (B) should have been

"if the firearm possessed by a person convicted of a violation of paragraph (A) above. "

and then pick it up, "is", so forth.

Right?

I mean, that would -- would be more precise.

Mr. Horwich: --That -- that I think would be so precise that we wouldn't be here discussing it today.

I agree with that.

But, of course, Congress has also used that same reference to (C), it appears in subparagraph (D), which is not--

Justice Antonin Scalia: Yes.

Mr. Horwich: --which is not then to say that this subsection -- that everything in this subsection is an element.

The Court has held otherwise already.

Justice Antonin Scalia: I guess I agree with you that if (B) is -- if (B) is an element, (C) would be an element, too.

Mr. Horwich: Well, that certainly would be the inference.

And that would be quite contrary to the traditional treatment of recidivism.

But, more generally, the tradition that Congress is working within in this new statute -- which, I want to point out, is significantly different in -- in a very substantive way from the old statute -- that the new statute proscribes a statutory maximum of life in all cases.

That is different from the old statute.

The old statute--

Justice Stephen G. Breyer: What is this to do -- I mean, the obvious question, to me, is -- since I wrote the -- I think I wrote the opinion in Castillo -- is we looked at the language of the statute, very similar to this, and we said: Machinegun means a separate crime.

And they recodified it.

And it looks to me as if all they did was take the things that we previously said were separate crimes and put them in (B), and take the things that are obviously sentencing factors and put them in (A) and (C).

All right.

Now, that's what it looks like if you just read the statute.

I didn't find anything in the history that suggested any other intent.

So why do you think that that change makes the difference?

Mr. Horwich: --Well, I think there are -- there are several specific changes that Congress made.

And I think it would be, perhaps, useful to look at the old statute and the new one, the old statute and the new one together and see why the things that -- that the Court said in Castillo are gone in the new one.

So the old statute is in the petition appendix at 11a.

Justice Antonin Scalia: Right.

Mr. Horwich: And then the new statute is in the appendix to the government's opening brief at 1a and 2a, so you can look at them side by side.

Justice Antonin Scalia: Isn't the old one in your brief, too, in your--

Mr. Horwich: It is.

Justice Antonin Scalia: --It's 3a of the government's brief.

Mr. Horwich: It is, although, of course, you have to turn the page, and I--

Justice Antonin Scalia: All right.

Okay.

Mr. Horwich: --Perhaps it's helpful to look at them next to each other, because the differences are quite stark--

Justice Antonin Scalia: All right.

Mr. Horwich: --when you do that.

So the first thing is, as you suggested, Justice Breyer, the firearm type provisions were moved.

But I think that that move signals something contrary to what this Court had perceived in Castillo.

In Castillo, the firearm type provisions were part of the initial sentence that defined the elements.

The sentence is rolling along, talking about using or carrying a firearm, and then in the same breath it goes on to start talking about specific weapons.

And that is what, in my reading of Castillo, drove the Court's impression that the they -- that the machinegun provision there should be an element.

The difference in the new statute is -- is that Congress has moved it away, textually, conceptually, structurally, away from the elements, which ought to suggest that Congress doesn't think--

Justice Sonia Sotomayor: But it didn't.

It kept in (A) the subdivisions of use and brandishing, which we all agree are elements of the crime.

So I don't know what it means to say that it moved it away from the elements.

It mixed up in (A) elements and sentencing factors, and so what we have to discern was, did it intend to make (B) sentencing factors or not?

And I think what Justice Breyer was asking you: What in the legislative history shows that?

Where do we read, outside of Castillo, a conclusion that somehow Congress radically changed the assumptions we identified in Castillo, which is historically it's not a sentencing element?

Mr. Horwich: --So a few answers there.

First of all, in the new -- in the new structure of the statute, on the government's view, the elements finish in the principal paragraph, and then -- then we're into sentencing factors.

So brandishing and discharge were held in Harris and acknowledged in Dean to be sentencing factors.

So we are sort of, at that point, on to sentencing factors.

So I take from what this Court said in Harris, about the separation of brandishing and discharge from the elements in the principal paragraph to indicate that they are sentencing factors, would apply even more strongly to subparagraph (C), which is even farther away.

There's -- there's a period, a structural break, a new sentence.

The thought in the principal paragraph is certainly complete.

We've already been through some other sentencing factors, and now we're--

Justice Antonin Scalia: Well, except that with -- with (C), you -- you could say that traditionally recidivism has been a sentencing factor, and you cannot say with respect to (B) that whether it's a short-barreled rifle or a machinegun has traditionally been a sentencing factor.

To the contrary, it was an element.

Mr. Horwich: --Well, I disagree with that, Justice Scalia, because the tradition, as I understand it, is relevant because it might indicate what Congress was thinking or what suppositions it had in mind when it passed a statute.

And there's a very -- there was a very different tradition at the time of the 1986 enactment of the old statute and the 1998 enactment of the new one, which is -- the big difference is that the sentencing guidelines came into effect in between those two times.

And the sentencing guidelines -- sentencing guideline 2K2.1, the principal determinant of base offense level in the sentencing guidelines for firearm-centric offenses in the Federal criminal law, was firearm type.

So it was unmistakably that -- it was unmistakable at the time in 1998 when Congress enacted these -- these firearm-type provisions, that the sentencing guidelines were already making firearm type a sentencing consideration for the judge.

Justice Antonin Scalia: Let's -- let's talk about the guidelines.

Without the application of (B), the guidelines would provide for a much shorter sentence, wouldn't they?

Mr. Horwich: Well, the guidelines -- as before and as now for this offense, the guidelines level is the minimum.

Justice Antonin Scalia: The guidelines -- do you think that if under the guidelines the sentence was 30 years because of a machinegun, do you think that that would be upheld?

Mr. Horwich: I'm sorry.

And your -- if I understand you--

Justice Antonin Scalia: Do you think it would be upheld as a reasonable sentence under our Booker/Fanfan theory of -- of how the guidelines are to be applied?

Mr. Horwich: --A reasonable -- well, certainly courts have, since Booker, imposed even up to a life sentence for offenses that did not otherwise trigger the elevated minimums.

There's at least one case in the few years since Booker that implied a -- that imposed a life sentence for a -- for an offense that would have been subject only to the base 5-year maximum.

There are several that imposed -- imposed a life sentence for--

Justice Antonin Scalia: Where -- where is the life sentence maximum, by the way?

I -- you say this is a minimum.

It's just a mandatory minimum because the maximum is specified to be life.

Where is that specified?

Mr. Horwich: --The -- the maximum is not textually in the statute, but all courts that have looked at this have understood that.

Certainly, it seems to be the supposition of this Court's statutory holding in Harris that the nature of -- the structure of this -- of the sentencing provision here is that there's a life maximum, and then the firearm--

Justice Antonin Scalia: Where -- where do you get the life maximum?

I -- I'm reading through, and there's -- it mentions nothing about life.

Mr. Horwich: --Well, it is certainly the case, if we simply take (a)(1)--

Justice Antonin Scalia: And if it mentions nothing about life, then these are not mandatory minimums.

To the contrary, they are -- they are new maximums.

Mr. Horwich: --I absolutely disagree.

If it says "at least", that can only mean that there can be some -- a sentence higher than that.

Justice Ruth Bader Ginsburg: Is the life part of the--

Mr. Horwich: Or not less than.

Justice Ruth Bader Ginsburg: --what the substantive crime was?

Is it the attempted robbery or whatever it was?

Is that -- because this is -- you're -- you're saying this is an add-on to an underlying offense.

Mr. Horwich: Well, I wouldn't describe it as an add-on.

It is a separate Federal crime, in -- in the sense -- in the sense that it is bad enough and dangerous enough to commit a drug trafficking offense or engage in a crime of--

Justice Ruth Bader Ginsburg: Well, then -- then you wouldn't be relying on what might be a life sentence for the underlying crime.

Mr. Horwich: --I -- oh, I'm sorry.

I -- I may have -- may have misspoken.

In response to Justice Scalia's question, my answer -- my answer was directed to imposing a life sentence on the 924(c) conviction, separate from whatever sentence may have been imposed on the--

Justice Ruth Bader Ginsburg: Yes, but where do you get the maximum?

You say, oh, these are just minimums.

Mr. Horwich: --Well, they are minimums because they say 5 years> ["].

That applies--

Justice Ruth Bader Ginsburg: But where is -- where is the maximum?

Mr. Horwich: --The -- well, because there is no stated maximum, the -- the assumption then must be that a sentence higher than 5 years is appropriate.

There is no--

Justice Sonia Sotomayor: Is there a Sixth Amendment problem with reading a statute this way, with -- with reading a statute to provide for an unlimited maximum when Congress hasn't specified it, and now you're going to have the judge find the minimum and the maximum?

Mr. Horwich: --Well, I don't -- I disagree that the judge is finding the maximum.

The -- the implied maximum term here is -- is life.

Congress--

Justice Antonin Scalia: I don't find that implied at all.

I don't see why it's implied.

Mr. Horwich: --Well, the trouble, Justice Scalia, is then that I don't otherwise know what the maximum would be.

Justice Antonin Scalia: That's right.

That's--

Mr. Horwich: The maximum--

Justice Antonin Scalia: --That's her question.

Justice Sonia Sotomayor: But isn't there a Sixth Amendment problem with not knowing what you are exposed to?

And then doesn't the minimum in that case sort of become de facto the maximum?

Justice Antonin Scalia: I think what you are exposed to, as I read the statute, (c)(1)(A) does not impose a new sentence at all.

It just says there will be added to whatever the sentence is for the crime of violence or the drug trafficking crime -- there will be added to that sentence.

Then it says you'll add 7 years; you'll add 25 years; you'll add 30 years.

Those are not mandatory minimums.

Those are add-ons to the sentence provided by the substantive crime to which (c)(1)(A) refers.

That way, the whole thing makes sense.

Mr. Horwich: --Well, I don't think it would make sense to treat them, as you are describing them, as add-ons.

There's no question that this -- that this statute defines an offense that someone can be convicted of.

That certainly is the implication of this Court's holding in Deal.

It is a separate offense which therefore should carry its own punishment.

And the contrast--

Justice Antonin Scalia: I'll amend what I said.

It is a mandatory minimum if the substantive crime referred to in (c)(1)(A) is above what is specified in -- in this statute.

But if it -- if it is below that, if the drug trafficking crime only provided for 15 years, and you did the crime with a machinegun, you get 30 years, that's an add-on.

Mr. Horwich: --Well, I -- I think it would be helpful then to compare this to the -- the language of the prior statute, which describes exactly what you are describing.

Justice Antonin Scalia: I got it.

Mr. Horwich: Which is -- which is that whoever during or in relation, et cetera, et cetera, uses or carries a firearm--

Justice Anthony Kennedy: Can you give us the page?

Mr. Horwich: --I'm sorry, this is at 11a of the petition appendix.

Justice Antonin Scalia: It's also on 3a of the government's brief.

Mr. Horwich: Or 3a of the -- of the government's -- the government's brief.

The old statute said exactly what you are describing, Justice Scalia, which is that whoever during or in relation to a crime of violence, et cetera, uses or carries a firearm shall, in addition to the punishment provided for such crime of violence, et cetera -- and then it specifies--

Justice Antonin Scalia: Right.

Mr. Horwich: --particular determinate sentences.

Justice Antonin Scalia: Right.

Mr. Horwich: If Congress had wanted to continue that approach, I assume it would have kept that language.

It didn't.

It changed the language.

The new language says

"be sentenced to a term of imprisonment of not less than 5 years. "

which leaves -- which leaves--

Justice Antonin Scalia: It says (c)(1)(A):

"Who, in furtherance. "

"possesses a firearm shall, in addition to the punishment provided for by such crime of violence, be sentenced to. "

5 years, 7 years, 10 years.

And then if the firearm, blah, blah, blah, is blah, blah, blah -- since your -- I assume that that introductory language

"in addition to the punishment provided for. "

is implicit in (B).

It's expressed in (A), but I think it's implicit in (B).

Mr. Horwich: --That -- I understand that language, the in -- the "in addition to" language, to have -- to have been to make clear that this is a separate offense.

There is separate punishment for a separate conviction of this separate offense.

Justice Antonin Scalia: Yes.

Mr. Horwich: And that then it is a separate -- then from there it is a question what is the appropriate sentence for a conviction on the offense described in 924(c)(1), which is to say, well, it's a term of imprisonment of not less than 5 years, which holds open--

Justice Antonin Scalia: In addition to the term that's -- that exists for the substantive offense.

Mr. Horwich: --I -- I agree.

And if you look in subparagraph (D)(ii) it says that the term of imprisonment imposed under this subsection shall run consecutive to the other one, which -- which again shows that -- that the considerations for sentencing in this -- in this law are distinct from the -- it is a -- it is a separate question what the sentence on the 924(c)--

Justice Stephen G. Breyer: To make your life a little more complicated and difficult, though perhaps it makes it easier, we reach the questions that Justice Scalia was raising, I think, and they are important only if you win, only if we say that it is a sentencing factor.

If it is a new crime, we don't have any problem, because if it's a new crime, the jury has to find the fact.

But if it's a sentencing factor, then we get into the problem of Harris versus Apprendi.

And then you have to decide whether it's maximum, minimum, et cetera.

But in Harris, I said that I thought Apprendi does cover mandatory minimums, but I don't accept Apprendi.

Well, at some point I guess I have to accept Apprendi, because it's the law and has been for some time.

So if and in fact, unfortunately for everyone, I was -- it was 5-4 in that, I think, so my vote mattered, and I don't know what other people think but in -- on this Court.

But if that becomes an issue, if that should become an issue about whether mandatory minimums are treated like the maximums for Apprendi purposes, should we reset the case for argument?

Or do you feel, in your opinion that -- that you've had enough of an argument because you devoted two or three pages to this topic?

Mr. Horwich: --Well, to answer -- well, first of all, there certainly has not been in -- in the briefing or argument here, any opportunity for this Court to consider what it would need to consider to overrule McMillan.

We're not talking about overruling Harris.

We're talking about overruling McMillan.

And--

Justice Stephen G. Breyer: Well, I think basically Apprendi did significantly change McMillan, but that's--

Mr. Horwich: --Well, and that's -- and that would be my -- my second point, is that -- is that since -- I think it has been become clearer since Harris that the rule in McMillan and the rule in Apprendi coexist quite well and coexist in a principled fashion, and that there is -- and that there is no -- Harris was correct in light of Apprendi, which is -- which is in the following respect.

Justice Stephen G. Breyer: --Does the government believe that it has sufficiently argued this, or would you suggest on the government's behalf that if it becomes an issue it's set for reargument?

That was really my question.

Mr. Horwich: Well, yes, we would certainly want to set it for reargument--

Justice Antonin Scalia: That's the right answer.

Mr. Horwich: --obviously.

[Laughter]

But -- but I -- again, I don't even think that's necessary.

Respondents have offered nothing in the way of a justification for overruling Harris.

And again, the distinction is--

Justice Ruth Bader Ginsburg: Why can't we just say, as Judge Boudin did, they weren't -- this revision was on the books before Castillo was decided, so obviously Congress wasn't trying to adjust the statute in response to Castillo.

And they -- they made it read more easily.

We know the one thing Congress was concerned with was adding possession, which was not there before.

So they added possession.

They made it more readable.

Some of the concerns that were expressed in Castillo are certainly present here.

There is a huge jump from a 5-year add-on to a 30-year add-on for -- for the machinegun.

So why don't we just say, well, this statute has been revised, but it wasn't in response to Castillo?

It's not all that different.

Mr. Horwich: --Well, I disagree that it's not all that different.

And -- and for the following three -- for three reasons.

First of all, setting aside my disagreement with Justice Scalia, if you accept that the statutory maximum is life, as I believe every court to have confronted this understands it to be, then this statute belongs to an entirely different tradition than the tradition that Castillo belonged to, which is to say that this statute -- the -- the role of firearm type in this statute is to channel the sentencing judge's discretion by ruling out certain low sentences when certain facts are present, such as the presence of a machinegun.

That is something that when Congress wants to channel--

Justice Sonia Sotomayor: Isn't a minimum always a maximum?

Mr. Horwich: --No, I--

Justice Sonia Sotomayor: In -- to the person who would otherwise, in the judge's discretion, qualify for a lower sentence, doesn't it become that person's maximum once you have indiscretion?

Mr. Horwich: --I disagree with that because the principle -- the background -- the basic principle behind Apprendi and our criminal law is that what you can rely on is what Congress has said in the statute or in -- as Booker holds--

Justice Sonia Sotomayor: What you can rely on in an indeterminate sentencing regime without a minimum is that you've got a statutory maximum, whatever it may be, but a judge's discretion to start from zero.

If that judge was inclined to give you zero, isn't the minimum then your statutory maximum?

You're -- because that's what the judge has to give you.

Mr. Horwich: --I disagree with that, because it is not the only thing the judge can give you.

The full range of punishment above those minimums is available.

I was indicating earlier that--

Chief Justice John G. Roberts: Counsel -- counsel, I think you had said you had three responses to Justice Ginsburg--

Mr. Horwich: --Yes.

Chief Justice John G. Roberts: --and only got one out.

Mr. Horwich: Right, and perhaps only half of that one, which is -- which is that in the -- on the question of -- of tradition, Congress apparently exclusively uses sentencing factors when it wants to do nothing more than give some rules to the judge to channel his discretion with minimum sentences.

We observed this in our opening brief, and Respondents said nothing in response.

As far as we know, every time Congress wants to channel a sentencing judge's discretion, it does it with a sentencing factor.

That is a difference.

Chief Justice John G. Roberts: All right.

Number two?

Mr. Horwich: Number two is that the -- is that the -- the -- the linguistic change here, the textual change, the fact that subparagraph (D) says

"a person convicted of a violation of this subsection. "

That presupposes there has been a conviction, that the jury has been charged with whatever the elements of the offense are and that now what's going to be stated in clauses (B)(i) and (B)(ii) are things that are relevant at sentencing.

And then the third -- and then the third point is -- is that -- is essentially the structural change from -- that I alluded to earlier, of moving firearm type wholly away from the elements of the offense.

That made a difference to this Court in Harris.

It is -- it would be, I think, irreconcilable with this Court's holding in Harris to say that brandishing and discharge have been moved far enough away from the elements to make them sentencing factors, or rather are stated far enough away from the elements, structurally separated enough to make them sentencing factors, but then to--

Chief Justice John G. Roberts: Those are all -- all three of those are -- are pretty subtle ways for Congress to change the view in Castillo.

Mr. Horwich: --Well, I would agree that--

Chief Justice John G. Roberts: Moving something from the body of the paragraph to a separate section and so on.

Mr. Horwich: --Well, I would -- I would point out -- of course, one has to -- one has to recognize what Congress had before it when it -- when it made the change, which is to say, when it -- when it embarked on these revisions, there was a one-to-one circuit split on the question.

And by the time it had finished making the changes, it was actually three to one in favor of sentencing factor interpretation in the old statute.

Now, I agree that if Castillo had been on the books and Congress had said nothing about it, that might be a basis to say that Congress was acquiescing in that interpretation.

But it's -- it's -- Congress was certainly concerned with much more substantial issues in the revisions.

And the fact that it did not comment further should not be a reason to -- to not pay attention to the structural and textural changes that it did make.

I'd like to reserve.

Chief Justice John G. Roberts: Thank you, counsel.

Justice Antonin Scalia: We have tall lawyers today.

What is this, tall lawyer day?

[Laughter]

Chief Justice John G. Roberts: Mr. Fisher.

ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE RESPONDENTS

Mr. Fisher: Mr. Chief Justice, and may it please the Court: I think it's important at the outset to set the context for this case.

The government cannot point to a single defendant under this provision for the conduct at issue who has ever received more than 10 years in prison absent the use of a machinegun.

We cited a long string of cases in the O'Brien brief and the government's response in its reply brief was silent.

So, therefore, the government is here today claiming that it is entitled, based on the fact of a machinegun, to get 20 years more than any defendant that perpetrated this conduct has ever gotten, and indeed 18 more years than the government itself asked the district judge in this case for, once the machinegun provision was off the table, under the guise that this is nothing more than a sentencing factor.

We think that this Court's statutory interpretation jurisprudence as well, if necessary, this Court's constitutional jurisprudence foreclose such a result.

Let me start with statutory interpretation.

On the government's theory in 1998, Congress stepped in and took a statute that made machinegun use an element and transformed it into -- into a sentencing factor.

In other words, Congress, without a peep, a mutter, or anything, and in -- in the course of doing something entirely different, which was reacting to this Court's Bailey decision, stepped in and took a fact that formerly had to be proved to a jury beyond a reasonable doubt to trigger a 30-year sentence and left that same sentence in place but now allowed it to be proved to a judge by a preponderance, based on a presentence report, and, indeed, according to the government, also stripped away the mens rea requirement that attached to the statute when it was an element.

Justice Ruth Bader Ginsburg: How about the short -- what is it, the one that gets 10 years, the short-barreled rifle?

That's -- that's -- those two are together in the statute, and you said that it would be startling because of the difference between 10 years and the 30 years, but the short-barreled rifle is the same amount of time in discharging, and discharging is a sentencing factor.

Mr. Fisher: We think, Justice Ginsburg, that if this Court had to construe that statute in a different case, that provision, it would find it's still an element.

Now, I grant that it's a difference, a very significant difference between 10 and 30 years, but structurally it is an element.

And I think an -- a good way to go about understanding this -- I heard my -- my opponent today say that this would be indistinguishable from Harris or fly in the face of Harris.

Well, there's three very important differences between the machinegun provision at issue here and the discharge provision in Dean and the brandishing provision in Harris.

The first difference is that this an entirely separate subparagraph.

Now, if you imagine somebody amending the statute and wanting to accomplish what the government says was accomplished here, why wouldn't the firearm type provisions just have been (iv) and (v) under capital letter (A)?

They're not.

What the draftsperson did instead is break them out into an entirely separate, stand-alone provision.

As the AUSA described it, when he charged them in the alternative in the district of Massachusetts, he said I think it's a greater and lesser offense situation.

And that's what we think.

Justice Antonin Scalia: Oh, I guess I'm not following the ball here.

I thought the government had conceded that sub (i), sub (ii), sub (iii) under (A) are not sentencing factors but are elements.

Is that not--

Mr. Fisher: I don't understand that to be what the government has said.

I believe the government's argument is that the big paragraph with capital letter (A) sets forth the elements, and then sub (i), (ii), and (iii) are merely sentencing factors.

Justice Ruth Bader Ginsburg: Now, they have to because that's what Harris said, brandished--

Justice Anthony Kennedy: That's -- yes, that's Harris.

Justice Ruth Bader Ginsburg: --brandished is a sentencing factor.

Mr. Fisher: That's right.

That's right, Justice Ginsburg.

Justice Antonin Scalia: --Well, that's even worse, then.

I agree with you.

[Laughter]

Mr. Fisher: So what sub (B) does, as I said, is it creates a greater offense, and so, it's broken out in a way that incorporates the earlier elements up above in the main paragraph by using the phrase: If a

"firearm possessed by a person convicted of a violation of this subsection. "

That phrase, we believe, incorporates the earlier elements.

Remember in Harris this Court emphasized that the brandishing provision just kept going in the sentence and did not incorporate earlier elements.

So when the government stands here today and says, well, when you incorporate the earlier elements, that shows it's a sentencing factor, too, it seems to me a situation of heads, I win; tails, you lose.

Justice Stephen G. Breyer: No, their -- their -- their basic argument is look at the statute.

(A) has what is undoubtedly a set of sentencing factors.

Brandishing and discharging are as traditional as they come.

Then look at (C), and you find some other ones that are sentencing factors, because recidivism is as traditional as it comes.

And between those two they put (B).

So since the neighbors, (A) and (C), are certainly sentencing, they must have meant (B) to be a sentencing factor, too.

I -- as I understand it, that is one of their basic arguments.

Mr. Fisher: Right.

And let me -- let me give two responses to that.

First of all, if you -- if you look again at the appendix of the government's main brief, which is 1a and 2a, the guts of the statute is the "use or carry" language or "possesses a firearm" language in the main paragraph.

And then, the -- from the (iii), what you have is the Bailey fix right there.

So, then what happens--

Justice Antonin Scalia: And you believe there is a background of life sentence?

You agree with the government that--

Mr. Fisher: --I don't think that's necessarily the case, Justice Scalia.

This Court--

Justice Antonin Scalia: --Well, it either is or isn't.

You--

Mr. Fisher: --has said a couple of times that this is a theoretical maximum sentence, but, surely, if nothing else, the Sentencing Reform Act sets a maximum sentence here if it's not just a straight determinant sentence.

And we've argued at length in the O'Brien brief that the reasonableness requirement under 3553 of the Sentencing Reform Act would have to set a maximum sentence.

And for the reason I said at the outset, given that no one has ever received more than 10 years absent a machinegun here, certainly that maximum sentence would be far less than life and far less than 30 years.

But--

Justice Anthony Kennedy: What's the -- I don't want to interrupt your nice organization here.

But what is the principle, the general rule, that you articulate to support the distinction between 30 being necessarily an element and 7 a sentencing factor?

What's the general rule here?

Mr. Fisher: --Let me answer it--

Justice Anthony Kennedy: Other than, this is just--

Mr. Fisher: --If I might say one more--

Justice Anthony Kennedy: --other than how awful this is.

Mr. Fisher: --If I might say one more sentence to Justice Breyer, and then I'll answer that.

Justice Anthony Kennedy: Please.

Mr. Fisher: Justice Breyer, the other thing I'd point out is that, so therefore, once you make the Bailey fix, you just come -- in the old statute, then you come to the machinegun provision, and you just leave it where it was.

And, in fact, there are plenty of statutes that we've cited in both briefs where there are elements in the middle, sandwiched between sentencing factors.

Now, Justice Kennedy, you asked the general principle.

The general principle is this, at least in terms of this Court's Sixth Amendment law, is that: The critical question to ask is whether the defendant could receive the sentence the government seeks without the fact at issue.

Seven years is a sentence the defendant here could receive without the machinegun finding.

Thirty years is absolutely off bounds.

Justice Anthony Kennedy: Is that just based on empirical studies or is there guideline support for that?

Mr. Fisher: There is both, Your Honor.

Of course, the guidelines are not binding--

Justice Anthony Kennedy: I understand.

I understand that.

Mr. Fisher: --but the guideline sentences as -- as to this statute are pegged exactly to the mandatory minimums.

Chief Justice John G. Roberts: I'm sorry.

Could otherwise receive under what?

The sentence -- you say 7 years is a sentence he could otherwise receive.

Mr. Fisher: Under the facts that either we prove to the jury or are admitted by the defendant.

So -- so in this case, the defendant could receive 7 years, and we've conceded that.

Justice Antonin Scalia: --There must be some statutory provision that you -- that you -- that you rely upon.

Mr. Fisher: Oh, certainly, Justice Scalia.

Justice Antonin Scalia: Where does 7 years come from?

Mr. Fisher: Seven years comes from -- comes from the statute, for brandishing, which is what both defendants had admitted that they did.

Seven years--

Chief Justice John G. Roberts: Yes, but we know that's a sentencing factor.

Mr. Fisher: --But they've admitted it.

So they've waived any Sixth Amendment right as to that sentencing factor.

We're willing to concede that.

But then you go to the guidelines, which sets a 7-year -- a 7-year recommended sentence.

Under this Court's jurisprudence following Booker, we know that we take that recommendation and we plug it into section 3553(a), which, if you want the statutory language, directs that a sentence

"no greater than necessary to serve the following factors. "

be introduced -- I'm sorry, be imposed.

And when you look at those factors, disparity is a factor this Court has left in place and emphasized at every term since Booker, and the guideline sentence.

And when you put -- plug those things into the facts here, we simply suggest there is no way that it would be upheld as substantively reasonable if the defendant got 30 years absent the machinegun fact here.

And we've also cited in our brief several places where the government itself makes this -- the mirror image of the argument that I'm making in the post-Booker, Gall, Rita world, when judges deviate downward from the guidelines.

They emphasize -- we quoted one Eleventh Circuit case in our brief where the government got overturned, as substantively unreasonable, a downward variance from a guideline recommendation, because no defendant had ever received such a low sentence.

But I don't have to, of course, hang my hat on this -- on the strict application of Apprendi here.

We think there's also an even deeper problem that predates this Court's Apprendi jurisprudence, which was flagged by this Court as early as McMillan, where this Court said that if what Congress does is step in and manipulate the elements of a crime in order to relieve the government of its obligation to prove ordinary and traditional elements, then we have a pure due process problem, irrespective of any Sixth Amendment problem.

Now, this Court has never found such a problem, but I would emphasize that the--

Justice Sonia Sotomayor: How do we find it with this statute, if there's a 10-year minimum/maximum under (A) subdivision (iii) if the firearm is discharged, and it's 10 years; and if it's a short-barreled rifle under (B), it's also an equal amount, of 10 years?

I think that's what Justice Ginsburg was pointing to.

So the question I have for you is: How do we find substantive unreasonableness?

Mr. Fisher: --How do we find substantively unreasonable after Booker?

Justice Sonia Sotomayor: Unreasonableness, that there was an act of manipulation here, or intent to manipulate.

Mr. Fisher: Well, if you're asking me the question -- I want to be sure I understand and answer the question.

If you're asking me how applying the principle this Court first articulated in McMillan, and you apply it here--

Justice Sonia Sotomayor: Exactly.

Mr. Fisher: --I don't think you have to look any further -- well, there is two places you can look.

You can look both at the intent of Congress and the effect of what it did.

The intent of Congress, at least as hypothesized by the Solicitor General, is laid out at page 33 of its merits brief, where it says: What Congress was intending to do here is, quote, "simplify and streamline guilt-stage proceedings" by relieving the government of its burden to prove this case -- this fact beyond a reasonable doubt to the judge.

So that strikes one as, as this Court put it in Harris, an intent to evade the ordinary requirements in the Fifth and Sixth Amendments.

Then, as to effect, you can look at what I've also -- what I've already emphasized, which is that this sentence simply is not otherwise available, absent that fact.

And that, on its own, ought to tell this Court that it's dealing with an element.

But if it wants to dig even deeper, it could -- it could describe it in terms of a 20-year increase over what the defendant would otherwise get or what, indeed, as we've said, anyone has ever gotten for this act, absent a machinegun.

It could do it in terms of percentage and say it's 83 percent higher; the Court used the phrase once, "tail wagging the dog".

I don't think it matters exactly what exact avenue this Court would pick.

Again, if it were doing a constitutional analysis -- I'm speaking right now constitutionally instead of statutorily -- it would all end up at the same place.

But I want to make sure that I understood your question also, with due respect to you, Justice Ginsburg, because what I was talking about was 10 years under (A)(iii), of course, is a sentencing factor, as this Court held in Dean, whereas under (B)(i), the same length of a sentence might be an element.

That was a matter -- that was a statutory answer, and I think, as a matter of statutory construction, which is, of course, the first thing you're going to address in this case, what we think we can win on without even reaching the constitutional questions.

And the differences would be, apart from the same sentence, you have the structural difference that I've emphasized.

You have the tradition.

And let me say a word about tradition, if I might.

The government emphasizes the guidelines and other kinds of statutes.

When this Court applies the tradition canon that it established in Almendarez-Torres and Castillo, I don't know why you have to look any further than Castillo itself to answer the tradition question.

In Jones, as this Court put it, the reason we look to tradition is because if it's a close case, we're going to not assume that Congress intended a radical departure from past practice.

Well, the past practice here is absolutely unequivocal.

This Court held in Castillo, 9-0, that Congress intended this to be an element.

Chief Justice John G. Roberts: Well, the Court's -- the Court's opinion in Castillo quite carefully noted that it wasn't addressing this statute.

I think it's a little bit of a bait-and-switch to say that, well, Castillo decides this case.

Mr. Fisher: I don't contend that Castillo absolutely decides the case.

My contention that I was trying to make is that when this Court looks to tradition for purposes of construing the new amendments, that Castillo gives the answer on -- at least on tradition, at least as applying that particular question.

Because Congress, we know, intended it to be an element at least until 1998.

But I think that even -- even if you were to step back from the Castillo analysis itself and the Castillo factors themselves, you would also, I think, do well to give -- again, not dispositive, but -- but careful treatment to Castillo, because Congress steps in, of course, and amends statutes all the time.

They step in and they amend one portion of a statute, and while they are at it, we know from the manuals that we've cited and from the examples in the back of the O'Brien brief that Congress often, while they're amending one part, they reorganize or reword other parts of the statute.

And this Court, across its statutory interpretation jurisprudence, within criminal law and outside, has always said that once we say the law means something, we're not going to assume that Congress changed the law unless we get some sort of clear indication from Congress that it -- that it intended to change the law.

Now, here, as I think has been emphasized, but I'll just reiterate, there's not a peep of anything in the legislative history or anything to suggest that Congress was -- was intending to change the law here.

And, in fact, it's not even a mere silence case.

We know quite clearly and affirmatively that Congress was intending to do something entirely different, which was respond to this Court's Bailey decision.

But even in the language -- and the only thing I think the Solicitor General even has for it in this case is the language and structure, which are some different words and different placement that it can at least build an argument off of, because the other four of the five Castillo factors are entirely unchanged.

But even the language, we submit, is a far cry from the kind of change this Court ought to require before it does a 180-degree switch as to what it had said the prior law meant.

Just for purposes of stability in the law, if nothing else, I think this -- it behooves this Court to take its prior decisions seriously and to -- and to engage in a dialogue with Congress that encourages Congress to be clear when it wants to change what the prior law is.

Justice Antonin Scalia: The prior statute -- which was 18 U.S.C. 924(c)(1), right?

That did deal with short-barreled rifle, short-barreled shotgun, machinegun, and so forth, but that's -- that provision didn't say anything about brandishing or discharge.

Where -- what was -- how were they treated under the prior law?

Mr. Fisher: They -- as you say, they were not in the statute itself.

My understanding is that judges as -- on an ad hoc basis, would have treated those as sentencing factors.

And what Congress did -- when it came in to respond to this Court's Bailey decision, I think it codified all of the different manners of using the gun in the context of one of these crimes.

So it not just dealt with, yes, possessing ought to be covered, but it talked about other manners, brandishing and discharging.

In Castillo, this Court emphasized again the big difference between manner of using a gun and the type of firearm which lies at the core of this offense.

If I would turn -- if I would leave the Court with nothing else, let me emphasize again to the Court the difference between this statute, which I think the government wants you to think is no different in intent, effect, or operation than the two that this Court prior -- dealt with in Harris, as a matter of both statutory construction and constitutional law, and in McMillan, as a matter of constitutional law.

What this Court emphasized in both of those cases was that there was a preexisting law on the books that criminalized certain activity.

And then a legislature later stepped in and set a mandatory minimum for a particular fact that could accompany the crime at issue.

And it did so in a very minor way.

For example, in Pennsylvania, the various crimes covered by the firearm mandatory minimum in that case gave 10-, 20-year sentences routinely, and all the Pennsylvania legislature did was step in and say: If he uses a gun, we want at least 5 years.

And in Harris, as I've just emphasized, I think, in discussing with Justice Scalia, the Court dealt with a bump of just 2 years.

Again, what judges were already customarily doing, I think, under the statute.

Here, this is entirely and dramatically different.

Here, the fact allows a sentence -- indeed, requires a sentence -- that is 20 years longer than anyone has ever gotten for this conduct at issue.

That is a difference not just -- it's not a minor difference.

It is a categorically different difference that we think is enough, combined with other principles of statutory and constitutional interpretation, to -- I'm sorry, statutory interpretation to resolve this case on the statute alone.

But if you need to look to the Constitution, we think that the Sixth Amendment, either as the bright-line rule articulated in Apprendi dictates that any fact that allows a greater sentence than the defendant could otherwise receive is subject to the Sixth Amendment, or sort of plain, pure due process, tail-that-wags-the-dog analysis, that this Court emphasized in McMillan -- either of those would be enough, and indeed require, a finding of unconstitutionality here and a finding this Court can avoid.

And if nothing else, Justice Breyer, I would say that we think that this case can be resolved on statutory grounds.

We think there are narrower constitutional arguments that would either require reading it narrowly or striking it down if you had to, on even narrower grounds.

But if nothing else, then we would ask this Court to revisit Harris, if necessary.

We don't think it's necessary to resolve the case for us here, but we think that would be appropriate if it -- if it needed to get there.

Justice Anthony Kennedy: It's a collateral point: Does the government have to show, or does the -- don't you have to find that the machinegun is operable?

Mr. Fisher: I assume so, but I don't know the specific answer to that, Justice Kennedy.

What there is a dispute about, of course, is whether the -- if it were a sentencing factor, whether the government has to prove knowledge.

And we do emphasize that that would be an alternative basis for this Court to decide this case, by saying you at least have to prove knowledge even if it's a sentencing factor.

And let me just leave you with this, unless there are any further questions: The government makes a couple points in its reply brief suggesting that certain arguments were not preserved or made properly in this case.

The knowledge argument that I just referred to is raised in the brief in opposition for Mr. O'Brien at pages 23 to 25.

So under rule 15 of this Court, that argument was properly presented at the cert stage.

You will also find that argument at pages 34 to 37 of the Joint Appendix.

Also with respect to the Sixth Amendment substantive reasonableness as-applied argument, the government suggests that for some reason, that would be inappropriate for this Court to reach or rely on.

Again, we disagree.

First of all, we can't understand why it would be inappropriate to reach or rely on that constitutional argument, whereas it is apparently appropriate for this Court to address the McMillan argument or the "overrule Harris" argument.

They're all three constitutional arguments that are present in this case.

And, again, if there were any doubt they were raised below, pages 38 and 39 of Mr. Burgess's First Circuit brief, pages 32 to 35 of Mr. O'Brien's First Circuit brief, and in the brief in opposition, which the government, in its reply brief at the cert stage, responded to without claiming any error or any waiver problems.

So we think absolutely all the arguments that are made in the blue -- in the red briefs are clearly before you.

If the Court has any additional questions, I would be happy to entertain them.

Otherwise, I am prepared to submit the case.

Chief Justice John G. Roberts: Thank you, Mr. Fisher.

Mr. Horwich, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF BENJAMIN HORWICH ON BEHALF OF THE PETITIONER

Mr. Horwich: Thank you.

Justice Kennedy, just to answer your question: The definition of 921(a)(3) includes a weapon that is designed to expel a projectile, so one that can be restored to do so also qualifies as a firearm for purposes of the statute.

My friend made the comment that brandishing and discharge would have been treated, under the old statute, as sentencing factors.

But they couldn't be, because the old statute had determinant sentences, and brandishing and discharge weren't relevant to it.

So there wouldn't be a higher sentence for those.

And that -- that reveals sort of a basic flaw in this notion that somehow those can be treated as sentencing factors, but Congress wasn't embarking on a general litany of sentencing factors.

Congress inserted those to be sentencing factors, as the Court recognized in Harris.

Then what it did is move the firearm-type provisions next in line, because that's what it thought of them as, not as elements.

It moved them away.

And then it goes on to recidivism, which is also a sentencing factor.

So the overall result, then, of the statute is that it's sort of an instruction manual.

The first thing that comes up is the elements; that's what the judge uses to charge the jury or take a plea.

That ends.

The statute takes up the next topic, which is sentencing.

The judge needs to ascertain the limits of his discretion.

And then the statute ends with some technical considerations.

That -- that approach is entirely in line with the sentencing factor tradition, and that's -- that seems to be what Congress intended.

But my friend's understanding of the statute is sort of this disorganized jumble, and he's making very much of the idea that when Congress revises a statute, it tries to confront -- it tries to make it better, on his view.

Justice Stephen G. Breyer: Is there anything other -- do we have anything other than the statute itself?

When I looked at the statute itself, I thought, well, all that's happened here is nobody's thought of this issue at all; nobody's read Castillo.

What really happened is somebody in the legislative drafting section was focusing on what he said they were focusing on, Bailey, and then they have a form manual.

So they followed the form manual.

Now, is there anything to suggest that isn't what happened?

Mr. Horwich: Well, there is no legislative history, but there is the fact that the form manual says if you're going to embark on this, here are some ideas for how to do it.

But it doesn't tell you -- it does not tell Congress substantively what it should do.

Someone had to make a choice to write that introductory language,

"a person convicted of a violation. "

And that is what Congress passed, and so Congress intended that those things, firearm type, that follow that are relevant after the person has been convicted of a violation.

One final answer to your question Justice Scalia, about the life maximum.

This Court held -- in Custis v. United States interpreted the same language, "not less than" a certain number of years.

That's in 924(e) of the Armed Career Criminal Act.

The Court held that to have a life maximum sentence there.

So I think the same would apply -- the same would apply here.

And so the final thing I would want the Court to take away then from this is that Congress is using firearm type to channel a sentencing judge's discretion.

The life maximum exists in all cases.

There have been cases sentenced up to life even where that was far above the minimum.

And when Congress does that, it uses a sentencing factor.

It doesn't create greater and lesser included offenses for the jury; it does it by addressing the person who is in charge of sentencing, which is the judge, and giving him a rule of decision.

That's what the text and the structure indicate here and that's what the Court should hold.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Transcript: 

Chief Justice John G. Roberts Jr.: Justice Kennedy has our opinion this morning in case 08-1569, United States versus O'Brien.

Justice Anthony Kennedy: In this case, United States versus O'Brien et al, the respondents attempted to rob an armored car at gunpoint.

They fled, but were later captured and charged with various federal offenses.

One of the counts in the indictment charged them with use of firearms during a crime of violence and a second -- a separate count charged them with using a machine gun during their crime.

Now use of a firearm during a crime of violence carries a five-year mandatory minimum sentence, but if a firearm is a machine gun, the mandatory minimum sentence is 30 years imprisonment and the dispute here is this.

Does the machine gun provision of the controlling statute state an element of an offense to be established at the guilt phase of the trial or is it a sentencing factor that need only be found by the trial judge in the sentencing phase?

The Trial Court and the Court of Appeals both ruled that whether a machine gun was involved is an element of the offense to be proved at the guilt phase of the trial.

The government disputes this conclusion.

The government contends that the machine gun question is a sentencing factor, so that the relevant facts are for the judge to determine a sentencing.

The controlling statute is 18 U.S.C., Section 924 (c)(1).

We've interpreted the statute before.

Indeed one of those cases Castillo versus United States was on this very point, but the statute as it was interpreted -- as Castillo was later amended, so we found it necessary to revisit the matter.

Castillo was decided 10 years ago.

The Court then held in a unanimous opinion that the machine gun provision in an earlier version of the statute was an element of the offense.

We reached that same conclusion here and we agree with the Trial Court and the Court of Appeals in this case.

Since the statute has to be considered in each of its parts, it's appropriate to make this discussion and summary even more brief than usual.

When evaluating the statutory provision as it existed in Castillo, the Court looked to five factors in determining whether a particular fact is either an element or a sentencing factor.

First, the language and structure of the statute; second, whether the facts were historically treated as elements or sentencing factors; third, the comparative risk of unfairness accompanying each interpret -- either interpretation; fourth, the severity of the additional sentence; and fifth, the legislative history.

Today's opinion discusses these factors and we conclude as we did in Castillo that the machine gun provision is an element of an offense rather than a sentencing factor.

Little of import has change since Castillo.

The second through fifth factors continue to point in the same direction they did ten years ago and given the Court's conclusion in Castillo that the machine gun provision was an offense element; a substitutive change in the statute should not be inferred absent a clear indication from Congress of a change in policy.

Nothing in the congressional amendment to Section 924 suggests that change.

The judgment of the United States Court of Appeals for the First Circuit is affirmed.

Justice Stevens has filed a concurring opinion; Justice Thomas has filed an opinion concurring in the judgment.