United States v. O'Brien

• Decision Date: 24 May 2010
• Docket Number: No. 08–1569.,08–1569.
• Parties: UNITED STATES, Petitioner, v. Martin O'BRIEN and Arthur Burgess.
• Court: U.S. Supreme Court

560 U.S. 218

130 S.Ct. 2169

176 L.Ed.2d 979

UNITED STATES, Petitioner,

v.Martin O'BRIEN and Arthur Burgess.

No. 08–1569.

Supreme Court of the United States

Argued Feb. 23, 2010.

Decided May 24, 2010.

Benjamin Horwich

, Washington, DC, for petitioner.

Jeffrey L. Fisher

, Stanford, CA, for respondents.

Elena Kagan, Solicitor General Counsel of Record, Lanny A. Breuer

, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Benjamin J. Horwich, Assistant to the Solicitor General, Sangita K. Rao, Attorney, Department of Justice, Washington, DC, for petitioner.

Jeffrey L. Fisher

, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Amy Howe, Kevin K. Russell, Howe & Russell, P.C., Bethesda, MD, Timothy P. O'Connell, Counsel of Record, Charlestown, MA, Patricia A. Millett, Thomas C. Goldstein, Akin, Gump, Strauss, Hauer & Feld LLP, Washington, DC, for respondent O'Brien.

Jeffrey T. Green

, Quin M. Sorenson, Sidley Austin LLP, Washington, DC, Tacy F. Flint, Jeremy G. Mallory, Sean A. Siekkinen, Sidley Austin LLP, Chicago, IL, for respondent Arthur Burgess.Opinion

Justice KENNEDY

delivered the opinion of the Court.

The Court must interpret, once again, § 924(c) of Title 18 of the United States Code

. This provision prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime, or the possession of a firearm in furtherance of such crimes. § 924(c)(1)(A). A violation of the statute carries a mandatory minimum term of five years' imprisonment, § 924(c)(1)(A)(i); but if the firearm is a machinegun, the statute requires a 30–year mandatory minimum sentence, § 924(c)(1)(B)(ii). Whether a firearm was used, carried, or possessed is, as all concede, an element of the offense. At issue here is whether the fact that the firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt or a sentencing factor to be proved to the judge at sentencing.

In an earlier case the Court determined that an analogous machinegun provision in a previous version of § 924

constituted an element of an offense to be proved to the jury. Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000). The Castillo decision, however, addressed the statute as it existed before congressional amendments made in 1998. And in a case after Castillo, the brandishing provision in the post–1998 version of § 924 was held to provide a sentencing factor, not an element of the offense. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In light of the 1998 amendments and the Harris decision, the question of how to interpret § 924's machinegun provision is considered once more in the instant case.

I

On June 16, 2005, respondents Martin O'Brien and Arthur Burgess attempted to rob an armored car making a scheduled delivery of cash to a bank. Along with a third collaborator, respondents hid in a minivan and waited for the armored car to make its stop. Each of the men carried a firearm. Containing nearly $2 million and attended by two guards, the armored car arrived. A guard began to unload boxes of coins. The three men came out of the van and, while one of them brandished his weapon, they ordered the guards to get on the ground. One guard did so, but the other ran to a nearby restaurant. The respondents abandoned the robbery and fled without taking any money. No shots were fired, and no one was injured.

Authorities apprehended respondents and recovered the three firearms used during the attempted robbery. The firearms were a semiautomatic Sig–Sauer pistol, an AK–47 semiautomatic rifle, and a Cobray pistol. The Cobray pistol had been manufactured as, and had the external appearance of, a semiautomatic firearm. According to the Federal Bureau of Investigation, though, it operated as a fully automatic weapon, apparently due to some alteration of its original firing mechanism. Respondents dispute whether the Cobray in fact did operate as a fully automatic weapon.

Respondents were indicted on multiple counts. Relevant here are counts three and four, both of which charged offenses under § 924(c)

. Count three charged respondents with using a firearm in furtherance of a crime of violence, which carries a statutory minimum of five years' imprisonment. Count four charged respondents in more specific terms, alleging use of a machinegun (the Cobray) in furtherance of a crime of violence, as proscribed by §§ 924(c)(1)(A) and (B)(ii). The latter provision mandates a minimum sentence of 30 years' imprisonment.

The Government moved to dismiss count four on the basis that it would be unable to establish the count beyond a reasonable doubt. (The issues in the present case do not require the Court to consider any contention that a defendant who uses, carries, or possesses a firearm must be aware of the weapon's characteristics. This opinion expresses no views on the point.)

The Government then maintained that the machinegun provision in § 924(c)(1)(B)(ii)

was a sentencing factor, so that, if respondents were convicted of carrying a firearm under count three, the court could determine at sentencing that the particular firearm was a machinegun, thus activating the 30–year mandatory minimum. The District Court dismissed count four, as the Government requested, but rejected the Government's position that the machinegun provision was a sentencing enhancement to be determined by the court at sentencing once there was a conviction on count three. It ruled that the machinegun provision states an element of a crime. Thus, to invoke the 30–year minimum sentence, the Government was required to charge in the indictment, and then prove to the jury, that the Cobray was a machinegun.

At this point, after the District Court foreclosed the possibility of respondents' facing a 30–year minimum, respondents pleaded guilty to the remaining counts, including count three. The District Court sentenced O'Brien to a 102–month term for his § 924(c)

conviction, to run consecutively with his sentence on two other counts. It sentenced Burgess to an 84–month term for his § 924(c) conviction, also to run consecutively to his sentence on the other charges. The Government appealed the District Court's ruling that the § 924 machinegun provision constitutes an element of an offense instead of a sentencing factor.

The United States Court of Appeals for the First Circuit affirmed. It looked primarily to Castillo, 530 U.S. 120, 120 S.Ct. 2090,

which held that the machinegun provision in an earlier version of § 924(c) constituted an element of an offense, not a sentencing factor. The court noted that the statute under consideration in Castillo had been revised by Congress, “break [ing] what was a single run-on sentence into subparagraphs,” and it acknowledged that the earlier repealed version of the statute was “slightly more favorable to the [respondents] than the current version[,] but not markedly so.” 542 F.3d 921, 925 (2008). It found “no evidence that the breaking up of the sentence into the present subdivisions or recasting of language was anything more than a current trend—probably for ease of reading—to convert lengthy sentences in criminal statutes into subsections in the fashion of the tax code.” Id., at 926.

The court concluded: “ Absent a clearer or more dramatic change in language or legislative history expressing a specific intent to assign judge or jury functions, we think that Castillo is close to binding,” and any reconsideration of the issue should be left to this Court. Ibid.; see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”).

We granted certiorari. 557 U.S. ––––, 130 S.Ct. 49, 174 L.Ed.2d 632 (2009)

.

II

Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)

; Jones v. United States, 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Sentencing factors, on the other hand, can be proved to a judge at sentencing by a preponderance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79, 91–92, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Though one exception has been established, see Almendarez–Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “ ‘[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting Jones, supra, at 252–53, 119 S.Ct. 1215 (STEVENS, J., concurring)). In other words, while sentencing factors may guide or confine a judge's discretion in sentencing an offender “within the range prescribed by statute,” Apprendi, supra, at 481, 120 S.Ct. 2348,

judge-found sentencing factors cannot increase the maximum sentence a defendant might otherwise receive based purely on the facts found by the jury.

Subject to this constitutional constraint, whether a given fact is an element of the crime itself or a sentencing factor is a question for Congress. When Congress is not explicit, as is often the case because it seldom directly addresses the distinction between sentencing factors and elements, courts look to the provisions and the framework of the statute to determine whether a fact is an element or a sentencing factor. Almendarez–Torres, supra, at 228, 118 S.Ct. 1219.

In examining whether the machinegun provision in § 924 is an element or a sentencing factor, the analysis must begin with this Court's previous examination of the question in Casti...