UNITED STATES v. O'BRIEN
A Massachusetts federal district court convicted Martin O'Brien and Arthur Burgess of attempted robbery and related weapons crimes. One of the weapons used by the defendants was an AK-47 assault rifle. At a pre-trial conference, the district court ruled that the nature of the weapon (i.e. semi-automatic, automatic, etc.) was an element of the crime and, thus, a matter for the jury to decide. After sentencing, the government appealed, arguing that the nature of the weapon was a sentencing element, and, thus a matter for the judge to decide. The U.S. Court of Appeals for the First Circuit affirmed, holding that under 18 U.S.C. Section 924(c) the nature of the weapon is an element of the crime that must be decided by the jury "beyond a reasonable doubt."
Is the sentencing enhancement for use of a firearm that is a machine gun under 18 U.S.C. Section 924(c) an element of the crime that must be proved "beyond a reasonable doubt" to a jury or a mere sentencing factor that may be found by a judge "by a preponderance of the evidence?"
Legal provision: 18 U.S.C. Section 924(c)(1)(B)(ii)
The Supreme Court affirmed, holding that 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. With Justice Anthony M. Kennedy writing for the majority, the Court reasoned that Congress determines whether a fact is an element or a sentencing factor. But when Congress is not explicit, the courts look to a statute's provision and framework for guidance. Under this analysis, the Court determined that the fact a firearm was a machine gun is an element of the crime.
Justice John Paul Stevens wrote separately, concurring. He argued that McMillan and Harris, two cases holding that "sentencing factors" need only be proved by a preponderance of the evidence, should be overruled. Justice Clarence Thomas also wrote separately, concurring in the judgment. He agreed with the majority's conclusion, but argued that the better approach is to treat any sentencing facts that increase the mandatory minimum sentence as an "element of a separate, aggravated offense that is submitted to a jury and proved beyond a reasonable doubt."
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.