Lead Opinion
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)(l)(A)(i); but if the firearm is a ma-ehinegun, the statute requires a 30-year mandatory minimum sentence, § 924(c)(l)(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,
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
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)(l)(B)(ii) was a sentencing factor, so that, if respondents were convicted of carrying a firearm under
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,
We granted certiorari.
II
Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt. Hamling v. United States,
In Castillo, the Court considered a prior version of § 924, which provided:
“(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime . . . , uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, 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 machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years....” 18 U. S. C. § 924(c)(1) (1988 ed., Supp. V).
In determining whether the machinegun provision in the just-quoted version of § 924 constituted an element or a sentencing factor, the Court in Castillo observed that the bare statutory language was “neutral.”
Ill
A
Section 924(c) was amended to its current form in 1998.
The amendment had been enacted when the Court considered Castillo, supra, at 125, but the pre-1998 version of the statute was at issue there. The instant case concerns the post-1998 (and current) version of the statute, which provides:
“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any 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;
“(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 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; or
“(ii) is a maehinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 80 years.” 18 U. S. C. § 924(c)(1).
Legal tradition and past congressional practice are the second Castillo factor. The factor is to be consulted when, as here, a statute’s text is unclear as to whether certain facts constitute elements or sentencing factors. Sentencing factors traditionally involve characteristics of the offender— such as recidivism, cooperation with law enforcement, or acceptance of responsibility. Id., at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under § 924(c) lies “closest to the heart of the crime at issue.” Id., at 127. This is no less true today than it was 10 years ago in Castillo. Unsurprisingly, firearm type is treated as an element in a number of statutes, as “numerous gun crimes make substantive distinctions between weapons such as pistols and machine-guns.” Ibid.; see, e.g., 18 U.S.C. §§ 922(a)(4), 922(b)(4), and 922(o)(l).
The Government counters that this tradition or pattern has evolved since the version of § 924(c) under review in Castillo was enacted. The Government contends that the Federal Sentencing Guidelines altered the tradition by treating the possession of a firearm as a sentencing factor. Brief for
The argument is not persuasive. The Sentencing Reform Act of 1984, 98 Stat. 1987, establishing the Federal Sentencing Guidelines, was enacted four years before the version of § 924 under review in Castillo, see Anti-Drug Abuse Act of 1988, § 6460,102 Stat. 4373. While the resulting Guidelines were not effective until 1987, this was still before the 1988 enactment of the statute at issue in Castillo, and 13 years before this Court’s conclusion in Castillo that firearm type is traditionally treated as an offense element. The Government cannot claim the benefit of any shift in how the law traditionally treats firearm type from the Guidelines, for that supposed shift would have occurred before the 1988 version of § 924 was enacted. The Guidelines were explicitly taken into account when this Court analyzed the traditions in Castillo.
The third Castillo factor, potential unfairness, was unchanged by the restructuring of § 924. The Court explained in Castillo that treating the machinegun provision as a sentencing factor “might unnecessarily produce a conflict between the judge and the jury” because “a jury may well have to decide which of several weapons” a defendant used. Id., at 128. The concern was that the judge may not know which weapon the jurors determined a defendant used, and “a judge’s later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury’s belief that he actively used the pistol.” Ibid. This same concern arises under the current version of § 924, where jurors might have to determine which among several weapons a defendant used, carried, or possessed in furtherance of a crime.
The fourth Castillo factor, the severity of the sentence accompanying a finding that a defendant carried a machinegun under § 924, was also unaffected by the statute’s restructuring. A finding that a defendant carried a machinegun under §924, in contrast to some less dangerous firearm, vaults a defendant’s mandatory minimum sentence from 5 to 30 years,
There is one substantive difference between the old and new versions of § 924 that might bear on this fourth factor. The previous version of § 924 provided mandatory sentences: 5 years for using or carrying a firearm and 30 years if the firearm is a machinegun, for example. See § 924(c)(1) (1988 ed., Supp. V). The current statute provides only mandatory mínimums: not less than 5 years for using or possessing a firearm; not less than 7 for brandishing it; and not less than 30 if the firearm is a machinegun. §§ 924(c)(l)(A)(i), (ii), (B)(ii). The Government argues that this difference is critical because a 30-year sentence is conceivable under the statute even without a finding that the particular weapon is a machinegun. Brief for United States 25.
The immense danger posed by machineguns, the moral depravity in choosing the weapon, and the substantial increase in the minimum sentence provided by the statute support the conclusion that this prohibition is an element of the crime, not a sentencing factor. It is not likely that Congress intended to remove the indictment and jury trial protections when it provided for such an extreme sentencing increase. See Jones,
The fifth factor considered in Castillo was legislative history, and the Court there found it to be of little help.
Four of the five factors the Court relied upon in Castillo point in the same direction they did 10 years ago. How the 1998 amendment affects the remaining factor — the provision’s language and structure — requires closer examination.
B
In Castillo, the Court interpreted § 924(c) in its original version, though Congress had at that point already amended the provision. Here, the applicable principle is that Congress does not enact substantive changes sub silentio. See Director of Revenue of Mo. v. CoBank ACB,
There are three principal differences between the previous and current versions of § 924(c): two substantive changes and a third regarding the stylistic structure of the statute. The first difference, as discussed above, supra, at 229, is that the amendment changed what were once mandatory sentences into mandatory minimum sentences. A person convicted of the primary offense of using or carrying a firearm during a crime of violence was once to “be sentenced to imprisonment for five years,” but under the current version he or she is to “be sentenced to a term of imprisonment of not less than 5 years.”
The second difference is that the amended version includes the word “possesses” in addition to “uses or carries” in its principal paragraph, and then adds the substantive provisions in §§ 924(c)(l)(A)(ii) and (iii), which provide mandatory mínimums for brandishing (7 years) and discharging (10 years) the firearm. These provisions are new substantive additions to the text of the previous version, which provided a bare 5-year mandatory minimum for any offender who “use[d] or carrie[d] a firearm,” without concern for how the firearm was used.
The changes were a direct response to this Court’s decision in Bailey v. United States,
Aside from shifting the mandatory sentences to mandatory minimums, and this so-called Bailey fix, Congress left the substance of the statute unchanged. Neither of these substantive changes suggests that Congress meant to transform the machinegun provision from an element into a sentencing factor.
The Government stresses a third, structural, difference in the statute, pointing out that the machinegun provision now resides in a separate subparagraph, § 924(c)(1)(B), whereas it once resided in the principal paragraph that unmistakably lists offense elements. This structural or stylistic ehange, though, does not provide a “clear indication” that Congress meant to alter its treatment of machineguns as an offense element. See Grogan,
While the Court has indicated that placing factors in separate subsections is one way Congress might signal that it is treating them as sentencing factors as opposed to elements, Castillo,
In examining the amended version of § 924(c)’s structure, there is an additional consideration that supports interpreting the machinegun provision to be an offense element. As explained above, the brandishing and discharge provisions codified in §§ 924(c)(l)(A)(ii) and (iii) do state sentencing factors. See Harris, supra, at 552-556; Dean, supra, at 573-574. Had Congress intended to treat firearm type as a sentencing factor, it likely would have listed firearm types as clauses (iv) and (v) of subparagraph (A), instead of as clauses (i) and (ii) of subparagraph (B). By listing firearm type in stand-alone subparagraph (B), Congress set it apart from the sentencing factors in (A)(ii) and (iii); this is consistent with preserving firearm type as an element of a separate offense.
* * *
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Concurrence Opinion
concurring.
A “sentencing factor” may serve two very different functions. As a historical matter, the term has described a fact that a trial judge might rely upon when choosing a specific sentence within the range authorized by the legislature. In that setting, the judge has broad discretion in determining both the significance of the factor and whether it has been established by reliable evidence.
In the 1970’s and 1980’s, as part of a national effort to enact tougher sentences,
I
We first encountered the use of a “sentencing factor” in the mandatory minimum context in McMillan v. Pennsylvania,
A bare majority of the McMillan Court endorsed this novel use of the sentencing factor concept. Five Justices concluded that the prerequisite for a mandatory sentence is just a “sentencing factor,” rather than an “element of the offense,” because the factor does not “alte[r] the maximum penalty for the crime” and merely “limit[s] the sentencing court’s discretion in selecting a penalty within the range already available to it.”
The majority opinion in McMillan can fairly be described as pathmarking, but unlike one of its predecessors, Winship, it pointed in the wrong direction. For reasons set forth in the opinions joined by the four dissenting Justices in McMillan, I continue to believe that McMillan was incorrectly decided. See id., at 93-94 (Marshall, J., dissenting); id., at 95-104 (Stevens, J., dissenting).
II
Not only was McMillan wrong the day it was decided, but its reasoning has been substantially undermined — if not
As Justice Thomas eloquently explained in his dissent in Harris v. United States,
Mandatory minimums may have a particularly acute practical effect in this type of statutory scheme which contains an implied statutory maximum of life, see ante, at 229. There is, in this type of case, no ceiling; there is only a floor below which a sentence cannot fall. Furthermore, absent a positive finding on one of § 924(c)(l)’s enumerated factors, it is quite clear that no judge would impose a sentence as great
Apprendi should have signaled the end of McMillan, just as it signaled the unconstitutionality of state and federal determinate sentencing schemes in Blakely v. Washington,
I am therefore in full agreement with Justice Thomas’ separate writing today, post, p. 240, as I was with his Harris dissent. McMillan and Harris should be overruled, at least
Ill
In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.
Notes
<rBy 1990, forty-six states had enacted mandatory sentence enhancement laws, and most states had a wide variety of these provisions.” Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of
See Apprendi v. New Jersey,
Commonwealth v. Wright,
In Winship, the Court “explicitly” held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
Consistent with the attempt in Harris v. United States,
“But in Harris, I said that I thought Apprendi does cover mandatory mínimums, 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... if that should become an issue about whether mandatory mínimums are treated like the máximums for Apprendi purposes, should we reset the case for argument?” Tr. of Oral Arg. 20 (question by Breyek, J.).
Concurrence Opinion
concurring in the judgment.
In Harris v. United States,
Without a finding that a defendant used a maehinegun, the penalty range for a conviction under § 924(c)(l)(A)(i) is five years to life imprisonment. But once that finding is added, the penalty range becomes harsher — 30 years to life imprisonment, §924(e)(l)(B)(ii) — thus “exposing] a defendant to greater punishment than what is otherwise legally prescribed,” Harris,
Because the Court reaches this same conclusion based on its analysis of a five-factor test, see ante, at 225-235,1 concur in the judgment.