Opinion for the Court filed by Circuit Judge GARLAND.
A jury convicted Dwayne Cassell of several drug and gun crimes, including possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). We affirmed Cassell’s convictions on direct appeal, and he now mounts a collateral challenge pursuant to 28 U.S.C. § 2255, alleging that his trial was subject to a host of errors by his counsel, the prosecutor, and the court. We reject all of Cassell’s allegations for the reasons set forth in the district court’s careful, detailed opinion. We address only one of those allegations in this opinion: Cassell’s claim that his trial counsel was constitutionally ineffective for failing to insist that the judge instruct the jury that possession of a “semiautomatic assault weapon” was an element of a separate offense under 18 U.S.C. § 924(c)(1) that the jury had to find beyond a reasonable doubt. We consider this issue in depth not because we disagree with the district court’s judgment, but because we think it important to have a circuit precedent on the question. We conclude that the type of firearm possessed by the defendant was a sentencing factor, which the district court properly found without a jury under a preponderance-of-the-evidence standard.
I
On July 13, 2000, District of Columbia police officers executed a search warrant at a house located at 1129 Trinidad Avenue in Northeast Washington, D.C. Lawrence Hart owned the house and shared it with his nephew, appellant Cassell. During the search, the officers found guns, drugs, and drug paraphernalia.
In a bedroom that Hart later identified as belonging to Cassell, the police found a blue duffel bag containing two loaded firearms: a Colt AR-15 semiautomatic rifle and a Cobray 9-mm semiautomatic pistol. They also found an identification card bearing Cassell’s name and photograph as well as the 1129 Trinidad Avenue address, an envelope addressed to Cassell, and $3154 in cash. In Hart’s own bedroom the police found a loaded .32 caliber revolver, .22 caliber ammunition, marijuana, and additional cash, all of which Hart admitted belonged to him. .
On the rear porch of the house, in a box on a chair, the officers recovered a receipt for the purchase of a car in Cassell’s name, a magazine for a semiautomatic handgun, and a scale. On the seat of the chair was a plate covered with white, rocklike crumbs that field-tested positive for cocaine. The plate bore Cassell’s right thumbprint.
In the dining room of the house was a table with a “hutch” on top of it. Inside the hutch, the police found a brown bag containing 71 ziplock bags of cocaine base, one round of 9-mm ammunition, and one round of .30 caliber ammunition. On the hutch, they found a court document and a telephone bill in Cassell’s name. The house’s bathroom, hallway, and kitchen *1011 yielded additional cocaine base, marijuana, and ammunition.
On August 24, 2000, a grand jury charged Cassell with five crimes: (1) possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(iii); (2) possession with intent to distribute cocaine base within 1000 feet of a school, in violation of 21 U.S.C. § 860(a); (3) using, carrying and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) and (c)(l)(B)(i); (4) unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (5) possession of marijuana, in violation of 21 U.S.C. § 844(a). Cassell went to trial on December 4, 2000. Four days later, the jury acquitted him of marijuana possession, but convicted him on all of the other charges. On March 7, 2001, the district court sentenced Cassell to 288 months’ incarceration and 10 years of supervised release. This court affirmed the conviction on June 11, 2002.
See United States v. Cassell,
On September 9, 2003, Cassell filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on numerous grounds, including the alleged ineffectiveness of both his trial and appellate counsel. In a memorandum opinion and order, the district court denied Cassell’s motion.
Cassell v. United States,
Cassell’s appeal once again raises multiple objections to his conviction. We reject all of them for the reasons set forth in the district court’s opinion. In this opinion, we consider only his claim that trial counsel was ineffective in failing to request a jury instruction that classified the term “semiautomatic assault weapon” as an element of a separate offense under 18 U.S.C. § 924(c)(1).
II
A petitioner may bring a claim of ineffective assistance of counsel “in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.”
Massaro v. United States,
Count Three of the indictment charged Cassell with using and carrying a firearm during and in relation to a drug trafficking offense, and with possessing a firearm in furtherance of such an offense, in violation of 18 U.S.C. § 924(c)(1). The count was submitted to the jury on the possession-in-furtherance theory only, and the judge instructed that the offense had two elements: “that the defendant possessed the firearm,” and “that the defendant possessed the firearm in furtherance of [a] drug trafficking offense.” Trial Tr. 572 (Dec. 7, 2000). The court defined the term “firearm” as “any weapon which ... expel[s] a projectile by the action of an *1012 explosive.” Id. at 572-73. It neither mentioned nor defined the term “assault weapon.” Cassell’s counsel agreed to those instructions and did not object when they were given. See Appellant’s Br. 37.
After the jury convicted Cassell on Count Three, the district court determined that the firearm that Cassell possessed — a Colt AR-15 semiautomatic rifle — was a “semiautomatic assault weapon” for purposes of § 924(c)(1). The relevant provision of that subsection states: “(B) If the firearm possessed by a person convicted of a violation of this subsection — (i) is a ... semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(B)® (2000). 1
Cassell contends that § 924(c)(1)(B) defines a separate offense, of which the type of firearm the defendant possessed is an element, and that his jury should have been so charged. Instead, and without objection by his counsel, the district court treated the type of firearm as a sentencing factor that the court could itself determine based on a preponderance of the evidence. Cassell argues that his counsel’s failure to object constituted constitutionally deficient performance under the first prong of Strickland. He further maintains that this deficient performance prejudiced him under Strickland’s second prong, because it led the court to sentence him to a mandatory minimum sentence of 10 years, rather than the 5-year mandatory minimum applicable to an unspecified type of firearm. Compare 18 U.S.C. § 924(c)(1)(A)® (imposing a sentence “of not less than 5 years”), with § 924(c)(1)(B)® (imposing a sentence “of not less than 10 years”).
For the reasons discussed in Parts III and IV below, we conclude that Cassell’s argument fails to satisfy either prong of Strickland. Counsel’s failure to argue that the type of firearm was an element of the offense was not “deficient” because the type of firearm is not an element of a § 924(c)(1) offense. Moreover, even if it were an element and counsel were deficient for not raising the issue, Cassell cannot show that he was prejudiced by the court’s failure to so charge the jury.
Ill
If the type of firearm possessed by the defendant constitutes an element of the § 924(c)(1) offense, then the question must be submitted to the jury and proven beyond a reasonable doubt.
Castillo v. United States,
(c)(1)(A) ... [A]ny person who, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
*1013 (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this subsec tion—
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or
(ii) is a machinegun ..., the person shall be sentenced to a term of imprisonment of not less than 30 years.
(C) In the case of a second or subsequent conviction under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years; ...
(D) Notwithstanding any other provision of law — ...
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person....
18 U.S.C. § 924(c) (2000) (emphasis added); see supra note 1. Two Supreme Court opinions light our path toward resolving whether the assault weapon provision is an element or a sentencing factor. We first describe those precedents and then apply them to the instant case.
A
The first precedent is
Castillo v. United States,
(c)(1) Whoever, during and in relation to any crime of violence ..., uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle [or a] short-barreled shotgun to imprisonment for ten years, and if the firearm is a machine-gun, ... to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.... Notwithstanding any other provision of law, ... the term of imprisonment imposed under this subsection [shall not] run concurrently with any other term of imprisonment. ... No person sentenced under this subsection shall be eligible for parole ....
18 U.S.C. § 924(c)(1) (Supp. V 1988) (emphasis added). A jury determined that the
Castillo
defendants had violated § 924(c)(1) by knowingly using or carrying firearms, and the judge found that the firearms at issue included machineguns. The judge then imposed the statute’s mandatory 30-year prison term. The question before the Supreme Court was whether Congress intended each reference to a firearm type in § 924(c)(1) to define a distinct crime or merely to indicate a sentencing factor.
Castillo,
The Court focused first on the statutory language, the relevant sentence of which, at the time, read as follows: “Whoever, during and in relation to any crime of violence ..., uses or carries a firearm, shall ... be sentenced to imprisonment for five years, and if the firearm is a ... machinegun, ... to imprisonment for thirty years.” 18 U.S.C. § 924(c)(1) (Supp. V
*1014
1988). The Court found that language “neutral.”
Castillo,
Although the Court read the statute’s language as neutral, it found that “its overall structure strongly favors the ‘new crime’ interpretation.”
Id.
“Congress,” the Court observed, “placed the element ‘uses or carries a firearm’ and the word ‘machinegun’ in a single sentence, not broken up with dashes or separated into subsections.”
Id.
at 124-25,
Important for Cassell’s case, the Court noted a “structural circumstanee[ ] that suggested] a contrary interpretation.” Id. That circumstance was Congress’ 1998 reenactment of § 924(c)(1), which “separat[ed] different parts of the first sentence ... into different subsections.” Id. This “postenactment statutory restructuring,” however, could not help the Court “determine what Congress intended at the time it enacted the earlier statutory provision.” Id.
The Court then addressed the remaining considerations that it had identified. It found that courts have not traditionally regarded firearm types as sentencing factors; that asking a jury to decide the type of firearm would rarely complicate a trial; that the legislative history was not helpful; and that the length of the added mandatory sentence that turned on the presence of a machinegun weighed in favor of treating the provision as referring to an element. Summarizing its entire analysis, the Court concluded “that Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime.”
Id.
at 131,
The second governing precedent is
Harris v. United States,
On the first issue, the Court found — as it had with respect to the machinegun provision at issue in
Castillo
— that the statutory language did not resolve the question.
*1015
Harris,
Here, § 924(c)(1)(A) begins with a lengthy principal paragraph listing the elements of a complete crime — “the basic federal offense of using or carrying a gun during and in relation to” a violent crime or drug offense. Toward the end of the paragraph is “the word ‘shall,’ which often divides offense-defining provisions from those that specify sentences.” And following “shall” are the separate subsections, which explain how defendants are to “be sentenced.” Subsection (i) sets a catchall minimum and “certainly adds no further element.” Subsections (ii) and (iii), in turn, increase the minimum penalty if certain facts are present, and those subsections do not repeat the elements from the principal paragraph.
Id.
at 552-53,
“When a statute has this sort of structure,” the Court said, “we can presume that its principal paragraph defines a single crime and its subsections identify sentencing factors.”
Id.
at 553,
Section 924(c)(1)(A) does not authorize the judge to impose “steeply higher penalties” — or higher penalties at all — once the facts in question are found. Since the subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm. The incremental changes in the minimum — from 5 years, to 7, to 10 — are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge’s consideration.
Id.
(quoting
Jones,
Finally, the Court addressed petitioner Harris’ contention that the canon of constitutional avoidance counseled against the single-offense interpretation.
Id.
at 554-55,
The Court was unpersuaded: The “petitioner’s proposed rule — that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safeguards assigned to elements — was rejected 16 years ago in
McMillan.” Id.
(citing
McMillan v. Pennsylvania,
B
Having laid out the governing precedents in some detail, we find the resolution of Cassell’s case straightforward. Unlike the structure of the version of § 924(c)(1) in effect at the time of
Castillo,
the structure of the version relevant here strongly indicates that possession of a particular type of firearm is a sentencing factor rather than an offense element. As the
Castillo
Court itself noted, the statute no longer has “the element ‘uses or carries a firearm’ and the word ‘machinegun’ in a single sentence, not broken up with dashes or separated into subsections.”
The current statute, as described in
Harris,
“begins with a lengthy principal paragraph listing the elements of a complete crime — ‘the basic federal offense of using or carrying a gun during and in relation to’ a violent crime or drug offense.”
Harris,
Turning to the remaining interpretive factors identified in
Castillo,
we note that the legislative history is again inconclusive, and that two of
Castillo’s
other observations' — that courts have not traditionally treated firearm type as a sentencing factor and that asking a jury to decide the type of firearm would rarely complicate a trial — again cut against the sentencing-factor interpretation. More significant, however, is the fact that the current version of § 924(c)(1) — unlike that at issue in
Castillo,
but like that in
Hams
— does not increase the statutory maximum sentence. Rather, the firearm-type provisions “have an effect on the defendant’s sentence that is more consistent with traditional understandings about how sentencing factors operate; the required findings constrain, rather than extend, the sentencing judge’s discretion” by “alter[ing] only the minimum [sentence that] the judge may impose.” Har
ris,
Finally, most significant is the fact that the language of § 924(c)(1)(B) — unlike the pre-1998 text examined in
Castillo
or the text of § 924(c)(l)(A)(ii) examined in
Harris
— is not “neutral” on the issue before us. Section 924(c)(1)(B) states: “If the firearm possessed by a person
convicted of a violation
of this subsection — (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(B) (emphasis added). The use of.
the
phrase “convicted
of
a violation” indicates that the provision is to be applied only after a conviction and, hence, only at sentencing. The referenced “violation” is for “‘the basic federal offense of using or carrying a gun during and in relation to’ a violent crime or drug offense.”
Harris,
“Against the single-offense interpretation to which these considerations point,”
id.
at 554-55,
Because the district court properly treated Cassell’s possession of an assault *1018 weapon as a sentencing factor, his counsel was not deficient in failing to demand a jury instruction on the issue. Accordingly, Cassell cannot satisfy the first prong of the Strickland test for ineffective assistance of counsel.
IV
Even if possession of a semiautomatic assault weapon were an element of the § 924(c)(1) offense, Cassell’s ineffective assistance claim would not succeed because he cannot show that counsel’s failure to demand a jury instruction on the issue caused him prejudice — as required by
Strickland’s
second prong. There is, in short, no “reasonable probability” that, if the court had left the question of Cassell’s possession of an assault weapon to the jury, “the result of the proceeding would have been different.”
Strickland,
The Supreme Court’s opinion in
Neder v. United States,
The same is true with respect to Cassell’s possession of an assault weapon. At trial, a police officer testified that during the search of the Trinidad Avenue house, the police found a blue duffel bag in Cassell’s bedroom, at the foot of his bed. The officer testified that the bag contained two firearms: a Colt AR-15 semiautomatic rifle, and a Cobray 9-mm semiautomatic pistol. A Special Agent of the Bureau of Alcohol, Tobacco, and Firearms also identified the rifle as a Colt AR-15. Cassell has not disputed this identification, nor suggested that he could. At the time of Cassell’s offense and trial, the statute defined “semiautomatic assault weapon” to include a “Colt AR-15,”
see
18 U.S.C. § 921(a)(30)(A)(iv) (2000), and the government was certainly entitled to a jury instruction to that effect. Accordingly, the trial evidence “incontrovertibly established],”
Neder,
The only remaining question is whether there is any reasonable probability that the jury could have found that Cassell did not possess the AR-15. Count Three of the indictment charged him with possessing the AR-15 and the Cobray pistol in furtherance of a drug trafficking offense, and those were the only weapons the government contended he possessed. See Trial Tr. 178, 184-85 (Dec. 5, 2000) (opening argument); Trial Tr. 584, 608 (Dec. 7, 2000) (closing argument). The court instructed the jury that, to convict Cassell on Count Three, it had to find that he *1019 possessed “a” firearm, Trial Tr. 572 (Dec. 7, 2000), and the verdict form makes clear that the jury so found, see Verdict Form at 2. There is thus no doubt that the jury determined that Cassell possessed at least one of the two weapons. And because both guns were in the same bag, and Cassell has never offered any scenario under which -the jury could have found that he possessed one gun but not the other, there is no reasonable probability that the jury would have acquitted Cassell of possessing the AR-15 semiautomatic assault weapon in furtherance of a drug trafficking offense. 3
In sum, we conclude both that Cassell’s counsel did not err in failing to request a jury instruction that firearm type was an offense element, and that, in any event, Cassell was not prejudiced by the absence of such an instruction. Cassell thus cannot satisfy either prong of Strickland’s two-prong test, and we must deny his claim of ineffective assistance of counsel.
V
For the foregoing reasons, the judgment of the district court is, in all respects,
Affirmed.
Notes
. The semiautomatic assault weapon provision of § 924(c)(l)(B)(i) expired on September 13, 2004, well after Cassell’s offense and subsequent conviction. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 110105(2), 108 Stat. 1796, 2000 (1994); 18 U.S.C. § 921 note. In all other relevant respects the current version of the statute is identical to the version at issue in this case, and this opinion refers to those common provisions as the “current” version of the statute.
.
See United States v. Harrison,
.
Cf. United States v. Johnson,