U.S. v. O'Brien

• Decision Date: 23 September 2008
• Docket Number: No. 07-2312.,07-2312.
• Citation: 542 F.3d 921
• Parties: UNITED STATES of America, Appellant, v. Martin O'BRIEN and Arthur Burgess, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

542 F.3d 921

UNITED STATES of America, Appellant, v. Martin O'BRIEN and Arthur Burgess, Defendants, Appellees.

No. 07-2312.

United States Court of Appeals, First Circuit.

Heard July 29, 2008.

Decided September 23, 2008.

James F. Lang, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Timothy Q. Feeley and Robert E. Richardson, Assistant United States Attorneys, were on brief for appellant.

Leslie Feldman-Rumpler, by appointment of the court, for appellee Arthur Burgess.

Timothy P. O'Connell, by appointment of the court, for appellant Martin O'Brien.

Before BOUDIN and DYK,^* Circuit Judges, and DOMÍNGUEZ,^** District Judge.

BOUDIN, Circuit Judge.

The question posed by this appeal is whether, under a statute forbidding the carrying and use of guns in connection with a federal crime, the nature of the weapon is to be found by the judge as a sentencing matter or by the jury as an element of the crime. Most circuits have said the former; believing ourselves largely constrained by a Supreme Court decision interpreting a prior version of the statute, we reach the opposite result, albeit with some misgivings.

The facts can be easily summarized. On the morning of June 16, 2005, defendants Martin O'Brien and Arthur Burgess, along with a third confederate Dennis Quirk, prepared to rob a Loomis-Fargo armored car. Between them, they carried three weapons: a Sig-Sauer pistol (O'Brien), a semi-automatic AK-47 assault rifle (Burgess), and a fully automatic Cobray pistol (Quirk). Part way into the robbery a guard escaped and the defendants fled but were later caught and indicted.

Counts one and two of the indictment alleged Hobbs Act violations for attempted robbery and conspiracy to affect interstate commerce, 18 U.S.C. § 1951 (2000); count three charged the defendants with using or carrying a firearm in furtherance of a crime of violence, id. § 924(c); count four charged defendants with using a machine-gun in furtherance of a crime of violence, id. § 924(c); and counts five and six charged some defendants as felons in possession of firearms, id. § 922(g). The Cobray pistol, which had been modified to operate as a fully automatic weapon, was listed both in count three as one of three firearms and in count four as the machine-gun.¹

The language of section 924(c) is set forth in full in an addendum to this decision along with a prior version of the same statute. Although section 924 as a whole is captioned "Penalties" and is a companion to section 922 captioned "Unlawful Acts," section 924 is elaborate, lengthy and far from homogenous in character. Subsection (a) sets penalties for specific violations of section 922; subsection (b) creates an offense for transporting weapons. Our main concern is with subsection (c).

Section 924(c) provides that anyone who in relation to a crime of violence or drug trafficking "uses or carries a firearm," or "possesses" one "in furtherance of" the crime, must be sentenced to at least five years imprisonment. 18 U.S.C. § 924(c)(1)(A). It then hikes the minimum if the firearm is "brandished" (seven years), id. § 924(c)(1)(A)(ii), or discharged (ten years), id. § 924(c)(1)(A)(iii), or if the firearm is a short-barreled rifle or shotgun (ten years), id. § 924(c)(1)(B)(i), or is a machine-gun or destructive device or is equipped with a silencer or muffler (thirty years), id. § 924(c)(1)(B)(ii). The defendants moved to strike the specific reference to the Cobray pistol from count three on the ground that possession of a machine-gun is an element of a crime, properly charged as a separate offense in count four. The government objected, insisting that the machine-gun provision set forth a sentencing factor. It said that it did not seek punishment on both counts but had included count four only as a precaution in case the machine-gun reference were struck from count three.

At the pretrial conference, the district court ruled that machine-gun possession was an element of a crime rather than a sentencing enhancement. It relied on Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), a decision construing an earlier version of the statute that was supplanted by the present law in 1998. Id. at 125, 120 S.Ct. 2090. The district court dismissed count four at the government's behest, and the defendants then pled guilty to the remaining counts.

The dismissal of count four came about because the government concluded that it could not prove beyond a reasonable doubt the defendants' knowledge that the Cobray had been modified to operate automatically. However, at sentencing the government again urged the thirty year mandatory minimum on the ground that the district court could find the necessary facts as to possession of a machine-gun by a preponderance of the evidence and without requiring the defendants to know that the weapon was automatic. The district judge refused, adhering to his earlier view of the statute.

Accordingly, although the defendants had pled guilty under count three to using or carrying a firearm in connection with a crime of violence, the fact that the Cobray pistol had tested as an automatic weapon was not enough to trigger the thirty year minimum. Two of the defendants (O'Brien and Burgess) ended up with sentences below thirty years; the third had yet to be sentenced when the briefs were filed. Arguing that the thirty year provision was a mandatory sentencing factor, the government now appeals.

Construing section 924(c) is a question of law to be considered de novo. Berhe v. Gonzales, 464 F.3d 74, 80 (1st Cir.2006). Six circuits support the government's view and only one, United States v. Harris, 397 F.3d 404, 406, 412-14 (6th Cir.2005), supports the defendants.² But the Supreme Court, glossing an earlier version of section 924(c), found that the machine-gun provision created an element of the offense to be submitted to the jury. Castillo, 530 U.S. at 121, 123, 131, 120 S.Ct. 2090. At the time, the new version (at issue in our case) had already been enacted but did not govern Castillo itself and was not interpreted by the Court.

Ordinarily, Congress can decide whether a fact is an element of the offense or pertains merely to sentencing. Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Read in a vacuum, the language of section 924(c) indicates that the "offense" (carrying a five year minimum sentence) is the carriage, use or possession of a firearm during a drug or violent felony — all elements for the jury — while the brandishing or discharge and the type of firearm — which merely raised the mandatory minimum-pose sentencing issues to be resolved by the judge.

This would comport with the statute's structure as well.³ According to the Supreme Court in Harris v. United States:

Federal laws usually list all offense elements "in a single sentence" and separate the sentencing factors "into subsections." ... When a statute has this sort of structure, we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors.

536 U.S. 545, 552-53, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (citation omitted). The current version of section 924(c) follows just this pattern. The first sentence (down to the semi-colon) sets forth the elements that the jury should find and the corresponding five year minimum sentence; then, the subsequent subparagraphs increase the mandatory minimum under various circumstances, which could readily be established at sentencing.

At present, no constitutional bar exists to such an allocation of tasks by Congress. In the face of escalating maximum sentences, the Supreme Court has ruled that the Sixth Amendment requires that any fact increasing the statutory maximum sentence be submitted to the jury. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). But it has not extended this prescription to facts that create or enlarge a statutory minimum sentence, which is what concerns us here. See McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); Harris, 536 U.S. at 557-568, 122 S.Ct. 2406 (reaffirming McMillan).

However, in sentencing it is imprudent to read Congress' language in a vacuum. The Supreme Court's innovative constitutional precedents, bringing the Sixth Amendment to bear on maximum sentences and (more famously) on the sentencing guidelines, e.g., United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), has been paralleled in statutory construction. There, the Court has developed unique policy and historical tests that complement, and sometimes work to modify, the most straightforward reading of language and structure.

These tests consider, along with legislative language and intent, the severity of punishment and how the fact has been historically treated. Two leading cases are Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ("serious bodily injury" resulting from a carjacking, 18 U.S.C. § 2119, is an element of the crime) and Castillo itself. Several times the outcome, as in both of these cases, has been to require courts to treat facts specified in the substantive statutes as elements of the offense rather than sentencing factors even though bare statutory language might seem to point the other way.⁴

Although in this new algorithm congressional language and other evidences of intent remain important, Harris, 536 U.S. at 552, 122 S.Ct. 2406, there is a further complication: Congress in enacting complex criminal statutes rarely considers explicitly whether some designated fact should be deemed an element or a sentencing factor — a distinction, after all, primarily of concern to courts in administering the statutes. Exceptions are relatively few. E.g., 18 U.S.C. § 3593(b) (factors bearing on imposition of death...