United States v. O’Brien

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. O’BRIEN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT

No. 08–1569. Argued February 23, 2010—Decided May 24, 2010
Respondents O’Brien and Burgess each carried a firearm during an
attempted robbery. Count three of their indictment charged them
with using a firearm in furtherance of a crime of violence, which car
ries a mandatory minimum 5-year prison term. 18 U. S. C.
§924(c)(1)(A)(i). Count four alleged use of a machinegun (here, a pis
tol that authorities believed operated as a fully automatic firearm) in
furtherance of that crime, which carries a 30-year mandatory mini
mum term. §924(c)(1)(B)(ii). The Government moved to dismiss the
fourth count on the basis that it could not establish the count beyond
a reasonable doubt, but it maintained that §924(c)(1)(B)(ii)’s ma
chinegun provision was a sentencing enhancement to be determined
by the District Court upon a conviction on count three. The court
dismissed count four and rejected the Government’s sentencing
enhancement position. Respondents then pleaded guilty to the re
maining counts. The court sentenced O’Brien to a 102-month term
and Burgess to an 84-month term for their §924(c) convictions. In af
firming the District Court’s §924(c)(1)(B)(ii) ruling, the First Circuit
looked primarily to Castillo v. United States, 530 U. S. 120, 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 found that Castillo was “close to binding,” absent clearer or
more dramatic changes than those made by Congress’ 1998 amend
ment of §924(c) or a clearer legislative history.
Held: 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. Pp. 5–16.
(a) Generally, a fact that “increase[s] the prescribed range of penal
ties to which a criminal defendant is exposed” is an element of a
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Syllabus

crime, Apprendi v. New Jersey, 530 U. S. 466, 490, to be charged in
an indictment and proved to a jury beyond a reasonable doubt, Ham
ling v. United States, 418 U. S. 87, 117, rather than proved to a judge
at sentencing by a preponderance of the evidence, McMillan v. Penn
sylvania, 477 U. S. 79, 91−92. Subject to this constitutional con
straint, Congress determines whether a factor is an element or a sen
tencing factor. When Congress is not explicit, courts look to a
statute’s provisions and framework for guidance. Analysis of the cur
rent machinegun provision begins with Castillo, where the Court
found the bare language of §924’s prior version “neutral,” 530 U. S.,
at 124, but ruled that four factors—(1) language and structure, (2)
tradition, (3) risk of unfairness, and (4) severity of the sentence—
favored treating the machinegun provision as an element of an of
fense, id., at 124−131; while a fifth factor—legislative history—did
not favor either side, ibid. Pp. 5–6.
(b) As relevant here, the 1998 amendment divided what was once a
lengthy principal sentence into separate subparagraphs. Thus, with
regard to the first Castillo factor, the Court’s observation that “Con
gress placed the element ‘uses or carries a firearm’ and the word ‘ma
chinegun’ in a single sentence, not broken up with dashes or sepa
rated into subsections,” 530 U. S., at 124−125, no longer holds true.
However, the amendment did not affect the second through fifth Cas
tillo factors. Each of them, except for legislative history (which re
mains relatively silent), continues to favor treating the machinegun
provision as an element. The amendment’s effect on the language
and structure factor requires closer examination. Pp. 6–12.
(c) Given the Court’s determination in Castillo that the machine
gun provision in §924’s prior version is an element, a substantive
change in the statute should not be inferred “[a]bsent a clear indica
tion from Congress of a change in policy,” Grogan v. Garner, 498 U. S.
279, 290. Nothing in the 1998 amendment indicates such a change.
There are three principal differences between the previous and cur
rent §924(c). The first, a substantive change, shifts what were once
mandatory 5-year and 30-year sentences to mandatory minimum
sentences. The second, also substantive—made in direct response to
the holding in Bailey v. United States, 516 U. S. 137, that “uses or
carries” in §924’s preamendment version connotes “more than mere
possession,” id., at 143—adds “possesses” to the “uses or carries” lan
guage in §924(c)’s principal paragraph and provides sentencing en
hancements for brandishing or discharging the firearm,
§§924(c)(1)(A)(ii) and (iii), which do state sentencing factors, Harris v.
United States, 536 U. S. 545, 552−556. Neither of these substantive
changes suggests that Congress meant to transform the machinegun
provision from an element into a sentencing factor. The third differ
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Syllabus

ence is the machinegun provision’s relocation from the principal
paragraph that unmistakably lists offense elements to a separate
subsection, §924(c)(1)(B), but this structural or stylistic change pro
vides no “clear indication” that Congress meant to alter its treatment
of machineguns as an offense element. A more logical explanation is
that the restructuring was intended to break up a lengthy principal
paragraph, which exceeded 250 words, into a more readable statute,
which is in step with current legislative drafting guidelines. While
this Court has recognized that placing factors in separate subsections
is one way Congress might signal that it is treating them as sentenc
ing factors rather than elements, Castillo, supra, at 124−125, it has
rejected the view that such a structural consideration predominates
even when other factors point in the other direction, Harris, supra, at
553. The current structure of §924(c) is more favorable to treating
the machinegun provision as a sentencing factor than was true in
Castillo, particularly because the machinegun provision is now posi
tioned between the sentencing factors provided in (A)(ii) and (iii) and
those in (C)(i) and (ii). This structural point is overcome by the sub
stantial weight of the other Castillo factors and the principle that
Congress would not enact so significant a change without a clear in
dication of its purpose to do so. Pp. 12–16.
542 F. 3d 921, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, GINSBURG, BREYER, ALITO, and SOTOMAYOR,
JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an
opinion concurring in the judgment.
 Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1569
_________________

UNITED STATES, PETITIONER v. MARTIN O’BRIEN

AND ARTHUR BURGESS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[May 24, 2010]

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 vio
lence 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 analo
gous 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 (2000). The
Castillo decision, however, addressed the statute as it
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Opinion of the Court

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 sen
tencing factor, not an element of the offense. Harris v.
United States, 536 U. S. 545 (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 or
dered 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. Accord
ing to the Federal Bureau of Investigation, though, it
operated as a fully automatic weapon, apparently due to
some alteration of its original firing mechanism. Respon
dents dispute whether the Cobray in fact did operate as a
fully automatic weapon.
Respondents were indicted on multiple counts. Rele
vant here are counts three and four, both of which charged
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Opinion of the Court

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’ impris
onment. Count four charged respondents in more specific
terms, alleging use of a machinegun (the Cobray) in fur
therance 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 defen
dant who uses, carries, or possesses a firearm must be
aware of the weapon’s characteristics. This opinion ex
presses 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 acti
vating the 30-year mandatory minimum. The District
Court dismissed count four, as the Government requested,
but rejected the Government’s position that the machine
gun provision was a sentencing enhancement to be deter
mined by the court at sentencing once there was a convic
tion 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, in
cluding 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.
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Opinion of the Court

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 consti
tutes 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,
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 Con
gress, “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 favor
able 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 any
thing 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 dra
matic 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 (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 Ap
peals should follow the case which directly controls, leav
ing to this Court the prerogative of overruling its own
decisions”).
We granted certiorari. 557 U. S. ___ (2009).
 Cite as: 560 U. S. ____ (2010)
5

Opinion of the Court

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 (1974); Jones v. United
States, 526 U. S. 227, 232 (1999). Sentencing factors, on
the other hand, can be proved to a judge at sentencing by
a preponderance of the evidence. See McMillan v. Penn
sylvania, 477 U. S. 79, 91−92 (1986). Though one excep
tion has been established, see Almendarez-Torres v.
United States, 523 U. S. 224, 228 (1998), “ ‘[i]t is unconsti
tutional 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 (2000) (quoting
Jones, supra, at 252−253 (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,
judge-found sentencing factors cannot increase the maxi
mum 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. 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
Castillo.
In Castillo, the Court considered a prior version of §924,
which provided:
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Opinion of the Court

“(c)(1) Whoever, during and in relation to any crime
of violence or drug trafficking crime . . . , uses or car
ries 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 muf
fler, 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.” 530 U. S., at 124.
It examined five factors directed at determining congres
sional intent: (1) language and structure, (2) tradition, (3)
risk of unfairness, (4) severity of the sentence, and (5)
legislative history. Id., at 124−131. The Court unani
mously concluded that the machinegun provision provided
an element of an offense, noting that the first four factors
favored treating it as such while legislative history did not
significantly favor either side. Ibid.
III

A

Section 924(c) was amended to its current form in 1998.
The amendment had been enacted when the Court consid
ered 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
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Opinion of the Court

and in relation to any crime of violence or drug traf
ficking 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 machinegun or a destructive device, or is
equipped with a firearm silencer or firearm muffler,
the person shall be sentenced to a term of imprison
ment of not less than 30 years.” 18 U. S. C. §924(c)(1)
(2006 ed.).
The 1998 amendment did make substantive changes to
the statute, to be discussed below; but for purposes of the
present case the most apparent effect of the amendment
was to divide what was once a lengthy principal sentence
into separate subparagraphs. This Court’s observation in
considering the first Castillo factor, that “Congress placed
the element ‘uses or carries a firearm’ and the word ‘ma
chinegun’ in a single sentence, not broken up with dashes
or separated into subsections,” 530 U. S., at 124−125, no
longer holds true. Aside from this new structure, however,
the 1998 amendment of §924 did nothing to affect the
second through fifth Castillo factors. Each of the factors,
except for legislative history (which, assuming its rele
8 UNITED STATES v. O’BRIEN

Opinion of the Court

vance, remains relatively silent), continues to favor the
conclusion that the machinegun provision is an element of
an offense.
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. Sentenc
ing factors traditionally involve characteristics of the
offender—such as recidivism, cooperation with law en
forcement, 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 machineguns.” Ibid.; see, e.g., 18 U. S. C.
§§922(a)(4), 922(b)(4), and 922(o)(1).
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 United States 23 (citing United States Sentenc
ing Commission, Guidelines Manual §2K2.1(a)(5) (Nov.
1998) (raising base offense level “if the offense involved a
firearm”)).
The argument is not persuasive. The Sentencing Re
form 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 re
sulting 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
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Opinion of the Court

Castillo that firearm type is traditionally treated as an
offense element. The Government cannot claim the bene
fit 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 en
acted. The Guidelines were explicitly taken into account
when this Court analyzed the traditions in Castillo. 530
U. S., at 126 (discussing Federal Sentencing Guidelines in
determining what traditionally qualifies as a sentencing
factor).
The third Castillo factor, potential unfairness, was
unchanged by the restructuring of §924. The Court ex
plained 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 Government’s response, that permitting a judge to
make this finding would “streamlin[e] guilt-stage proceed
ings, without interfering with the accuracy of fact-finding,”
Brief for United States 33, is unconvincing. It does not
address the particular unfairness concern expressed in
Castillo, which was not alleviated by the restructuring of
§924. And the Government does not suggest that it would
be subjected to any unfairness if the machinegun provision
continues to be treated as an element.
The fourth Castillo factor, the severity of the sentence
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Opinion of the Court

accompanying a finding that a defendant carried a ma
chinegun under §924, was also unaffected by the statute’s
restructuring. A finding that a defendant carried a ma
chinegun under §924, in contrast to some less dangerous
firearm, vaults a defendant’s mandatory minimum sen
tence from 5 to 30 years, Castillo, supra, at 131, or from 7
to 30 years if, as in this case, the firearm was brandished,
§924(c)(1)(A)(ii). This is not akin to the “incremental
changes in the minimum” that one would “expect to see in
provisions meant to identify matters for the sentencing
judge’s consideration,” Harris, 536 U. S., at 554 (from 5
years to 7 years); it is a drastic, sixfold increase that
strongly suggests a separate substantive crime.
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 sen
tences: 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 pro
vides only mandatory minimums: not less than 5 years for
using or possessing a firearm; not less than 7 for brandish
ing it; and not less than 30 if the firearm is a machinegun.
§§924(c)(1)(A)(i), (A)(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.
This is a distinction in theory, perhaps, but not in prac
tice. Neither the Government nor any party or amicus has
identified a single defendant whose conviction under §924
for possessing or brandishing a nonspecific firearm led to a
sentence approaching the 30-year sentence that is re
quired when the firearm is a machinegun. Respondents
advise, without refutation, that most courts impose the
mandatory minimum of 7 years’ imprisonment for bran
dishing a nonspecific weapon and the longest sentence
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Opinion of the Court

that has come to the litigants’ or the Court’s attention is
14 years. Brief for Respondent O’Brien 46, 48 (citing
United States v. Batts, 317 Fed. Appx. 329 (CA4 2009) (per
curiam)); see also Harris, supra, at 578 (THOMAS, J.,
dissenting). Indeed, in the instant case, Burgess received
the statutory minimum 7-year sentence, and O’Brien
received only 18 months more than that. Once the ma
chinegun enhancement was off the table, the Government
itself did not seek anything approaching 30-year terms,
instead requesting 12-year terms for each respondent.
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 sentenc
ing increase. See Jones, 526 U. S., at 233 (“It is at best
questionable whether the specification of facts sufficient to
increase a penalty range by two-thirds, let alone from 15
years to life, was meant to carry none of the process safe
guards that elements of an offense bring with them for a
defendant’s benefit”). Perhaps Congress was not con
cerned with parsing the distinction between elements and
sentencing factors, a matter more often discussed by the
courts when discussing the proper allocation of functions
between judge and jury. Instead, it likely was more fo
cused on deterring the crime by creating the mandatory
minimum sentences. But the severity of the increase in
this case counsels in favor of finding that the prohibition is
an element, at least absent some clear congressional indi
cation to the contrary.
The fifth factor considered in Castillo was legislative
history, and the Court there found it to be of little help.
530 U. S., at 130 (“Insofar as this history may be relevant,
however, it does not significantly help the Government”).
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Opinion of the Court

The 1998 amendment has its own legislative record, dis
cussed below, but the parties accurately observe that it is
silent as to congressional consideration of the distinction
between elements and sentencing factors. Brief for United
States 29; Brief for Respondent O’Brien 28−29. This
silence is not neutral, however, because as explained
below, it tends to counsel against finding that Congress
made a substantive change to this statutory provision.
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,
531 U. S. 316, 323 (2001). In light of Castillo’s determina
tion that the machinegun provision in the previous version
of §924 is an element, a change should not be inferred
“[a]bsent a clear indication from Congress of a change in
policy.” Grogan v. Garner, 498 U. S. 279, 290 (1991); see
also Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n.
12 (1994) (“[W]hen this Court construes a statute, it is
explaining its understanding of what the statute has
meant continuously since the date when it became law”).
The Government argues that the 1998 amendment
restructuring §924(c) demonstrates the congressional
judgment to reclassify the machinegun provision as a
sentencing factor, rather than as an offense element. But
the better understanding, as the Government acknowl
edged in its submission in Castillo, is that “there is noth
ing to suggest that the 1998 amendments were intended to
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Opinion of the Court

change, rather than simply reorganize and clarify, [§924]’s
treatment of firearm type.” Brief for United States, O. T.
1999, No. 99–658, p. 41. A closer review of the 1998
amendment confirms this.
There are three principal differences between the previ
ous 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
10, is that the amendment changed what were once man
datory sentences into mandatory minimum sentences. A
person convicted of the primary offense of using or carry
ing 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 in
cludes the word “possesses” in addition to “uses or carries”
in its principal paragraph, and then adds the substantive
provisions in §§924(c)(1)(A)(ii) and (iii), which provide
mandatory minimums for brandishing (7 years) and dis
charging (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 con
cern for how the firearm was used.
The changes were a direct response to this Court’s deci
sion in Bailey v. United States, 516 U. S. 137 (1995), which
held that the word “use” in the pre-amendment version of
§924 “must connote more than mere possession of a fire
arm by a person who commits a drug offense.” Id., at 143.
The Court in Bailey went on to observe that, “[h]ad Con
gress intended possession alone to trigger liability under
§924(c)(1), it easily could have so provided” by using the
word “possess,” as it had so frequently done in other statu
tory provisions. Ibid. Three years later, Congress made
the change and added the word “possesses” to the princi
14 UNITED STATES v. O’BRIEN

Opinion of the Court

pal paragraph. Congress additionally provided mandatory
sentences above the 5-year minimum depending on
whether and how the firearm was used. Sections
924(c)(1)(A)(ii) and (iii) provide sentencing enhancements
for brandishing or discharging the firearm, and the Court
has held that these enhancements are sentencing factors
to be found by a judge. See Harris, 536 U. S., at 552−556;
see also Dean v. United States, 556 U. S. ___, ___ (2009)
(slip op., at 5) (referring to the brandishing and discharge
provisions as “sentencing factors”). The 1998 amendment
was colloquially known as the “Bailey Fix Act.” 144 Cong.
Rec. 26608 (1998) (remarks of Sen. DeWine); see also
Dean, supra, at ___ (STEVENS, J., dissenting) (slip op.,
at 3).
Aside from shifting the mandatory sentences to manda
tory 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 subsection, §924(c)(1)(B),
whereas it once resided in the principal paragraph that
unmistakably lists offense elements. This structural or
stylistic change, though, does not provide a “clear indica
tion” that Congress meant to alter its treatment of ma
chineguns as an offense element. See Grogan, 498 U. S.,
at 290. A more logical explanation for the restructuring is
that it broke up a lengthy principal paragraph, which
exceeded 250 words even before adding more to it for the
Bailey fix, into a more readable statute. This is in step
with current legislative drafting guidelines, which advise
drafters to break lengthy statutory provisions into sepa
rate subsections that can be read more easily. See House
Legislative Counsel’s Manual on Drafting Style, HLC No.
 Cite as: 560 U. S. ____ (2010) 15

Opinion of the Court

104.1, §312, pp. 23−25 (1995); Senate Office of the Legisla
tive Counsel, Legislative Drafting Manual §112, pp. 10−11
(1997).
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, 530 U. S., at 124−125, Harris, 536
U. S., at 552−553, it has rejected the view that this struc
tural consideration predominates even when other factors
point in the other direction, id., at 553 (“[E]ven if a statute
‘has a look to it suggesting that the numbered subsections
are only sentencing provisions,’ ” the Court will not ignore
“compelling evidence to the contrary” (quoting Jones, 526
U. S., at 232)). For instance, in Jones the Court found that
the federal carjacking statute set forth elements of multi
ple offenses despite a structure similar to the statute at
issue here. Id., at 232−239. And in Harris, the Court was
careful to point out that, unlike the case at bar, the other
Castillo factors “reinforce[d] the single-offense interpreta
tion implied by the statute’s structure.” 536 U. S., at 553.
In examining the amended version of §924(c)’s struc
ture, there is an additional consideration that supports
interpreting the machinegun provision to be an offense
element. As explained above, the brandishing and dis
charge provisions codified in §924(A)(ii) and (iii) do state
sentencing factors. See Harris, supra, at 552−556; Dean,
supra, at ___ (slip op., at 5). Had Congress intended to
treat firearm type as a sentencing factor, it likely would
have listed firearm types as clauses (iv) and (v) of sub
paragraph (A), instead of as clauses (i) and (ii) of subpara
graph (B). By listing firearm type in stand-alone subpara
graph (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.
To be sure, there are some arguments in favor of treat
ing the machinegun provision as a sentencing factor. The
16 UNITED STATES v. O’BRIEN

Opinion of the Court

current structure of §924(c) is more favorable to that
interpretation than was true in Castillo, particularly
because the machinegun provision is now positioned be
tween the sentencing factors provided in (A)(ii) and (iii),
see Harris, supra, at 552−556, and the recidivist provi
sions in (C)(i) and (ii), which are typically sentencing
factors as well. See Almendarez-Torres, 523 U. S., at 230.
These points are overcome, however, by the substantial
weight of the other Castillo factors and the principle that
Congress would not enact so significant a change without
a clear indication of its purpose to do so. The evident
congressional purpose was to amend the statute to coun
teract Bailey and to make the statute more readable but
not otherwise to alter the substance of the statute. The
analysis and holding of Castillo control this case. The
machinegun provision in §924(c)(1)(B)(ii) is an element of
an offense.
* * *

The judgment of the Court of Appeals is affirmed.

It is so ordered.
 Cite as: 560 U. S. ____ (2010) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1569
_________________

UNITED STATES, PETITIONER v. MARTIN O’BRIEN

AND ARTHUR BURGESS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[May 24, 2010]

JUSTICE STEVENS, concurring.
A “sentencing factor” may serve two very different func
tions. 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 deter
mining 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,1 a new type of “sentencing factor”
emerged. Since then the term has been used to describe
facts, found by the judge by a preponderance of the evi
dence, that have the effect of imposing mandatory limits
on a sentencing judge’s discretion. When used as an ele
ment of a mandatory sentencing scheme, a sentencing
factor is the functional equivalent of an element of the

——————
1 “By 1990, forty-six states had enacted mandatory sentence en

hancement laws, and most states had a wide variety of these provi
sions.” Lowenthal, Mandatory Sentencing Laws: Undermining the
Effectiveness of Determinate Sentencing Reform, 81 Cal. L. Rev. 61,
64–65 (1993) (footnote omitted); see also id., at 69 (“[M]ost of the
current mandatory enhancement laws did not appear until the 1970s”);
Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev.
199, 200–201 (1993) (discussing history of federal mandatory minimum
sentencing regime).
2 UNITED STATES v. O’BRIEN

STEVENS, J., concurring

criminal offense itself. In these circumstances, I continue
to believe the Constitution requires proof beyond a rea
sonable doubt of this “factor.”
I
We first encountered the use of a “sentencing factor” in
the mandatory minimum context in McMillan v. Pennsyl
vania, 477 U. S. 79 (1986), when we examined the consti
tutionality of Pennsylvania’s 1982 Mandatory Minimum
Sentencing Act (Act).2 The Pennsylvania statute subjected
anyone convicted of a specified felony to a mandatory
minimum 5-year sentence if the trial judge found, by a
preponderance of the evidence, that the defendant “visibly
possessed a firearm” during the commission of the offense.
See id., at 81–82. In four prosecutions under the Act, the
trial judges had each held that the statute was unconstitu
tional and imposed sentences lower than the 5-year man
datory minimum, presumably because they recognized
that the statute treated the visible possession of a firearm
as the functional equivalent of an offense element. Id., at
82. On appeal, the Pennsylvania Supreme Court consoli
dated the four cases and reversed.3 Id., at 83. It reasoned
that because visible possession of a firearm was a mere
“sentencing factor,” rather than an element of any of the
specified offenses defined by the legislature, the protec
tions afforded by cases like In re Winship, 397 U. S. 358
(1970),4 did not apply.
A bare majority of the McMillan Court endorsed this
——————
2 See Apprendi v. New Jersey, 530 U. S. 466, 485 (2000) (“It was in

McMillan . . . that this Court, for the first time, coined the term ‘sen
tencing factor’ to refer to a fact that was not found by a jury but that
could affect the sentence imposed by the judge”).
3 Commonwealth v. Wright, 508 Pa. 25, 494 A. 2d 354 (1985).
4 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.” 397 U. S., at 364.
 Cite as: 560 U. S. ____ (2010) 3

STEVENS, J., concurring

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 maxi
mum penalty for the crime” and merely “limit[s] the sen
tencing court’s discretion in selecting a penalty within the
range already available to it.” 477 U. S., at 87–88. Yet,
although the Pennsylvania Act’s 5-year mandatory sen
tence for visible possession of a firearm during the com
mission of an offense did not exceed the statutory maxi
mum that otherwise applied for the crimes of conviction, a
positive finding on the so-called sentencing factor man
dated the imposition of a sentence that exceeded the pun
ishment the defendant would have otherwise received.
See id., at 103–104 (STEVENS, J., dissenting).
The majority opinion in McMillan can fairly be de
scribed 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., dis
senting); 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 eviscerated—by the development of our Sixth Amend
ment jurisprudence in more recent years. We now under
stand that “ ‘[i]t is unconstitutional [under the Sixth
Amendment] 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 (2000) (quoting
Jones v. United States, 526 U. S. 227, 252–253 (1999)
(STEVENS, J., concurring)). Harmonizing Apprendi with
our existing Sixth Amendment jurisprudence, we ex
4 UNITED STATES v. O’BRIEN

STEVENS, J., concurring

plained that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” 530 U. S., at 490 (emphasis added). In other
words, we narrowed our holding to those facts that effec
tively raised the ceiling on the offense, but did not then
consider whether the logic of our holding applied also
to those facts necessary to set the floor of a particular
sentence.
As JUSTICE THOMAS eloquently explained in his dissent
in Harris v. United States, 536 U. S. 545, 572 (2002), the
reasoning in our decision in Apprendi applies with equal
force in the context of mandatory minimums. There is,
quite simply, no reason to distinguish between facts that
trigger punishment in excess of the statutory maximum
and facts that trigger a mandatory minimum. This case
vividly illustrates the point. It is quite plain that there is
a world of difference between the 81⁄2-year sentence and
the 7-year sentence the judge imposed on the defendants
in this case and the 30-year sentence mandated by the
machinegun finding under 18 U. S. C. §924(c)(1)(B).
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 10. There is, in this type of case, no ceiling; there is
only a floor below which a sentence cannot fall. Further
more, absent a positive finding on one of §924(c)(1)’s enu
merated factors, it is quite clear that no judge would
impose a sentence as great as the sentences commanded
by the provision at issue in this case. Indeed, it appears
that, but for those subject to the 30-year mandatory mini
mum, no defendant has ever been sentenced to a sentence
anywhere near 30 years for a §924(c) offense. See Brief for
Respondent O’Brien 46–47, and n. 15.
Apprendi should have signaled the end of McMillan,
just as it signaled the unconstitutionality of state and
 Cite as: 560 U. S. ____ (2010) 5

STEVENS, J., concurring

federal determinate sentencing schemes in Blakely v.
Washington, 542 U. S. 296 (2004), and United States v.
Booker, 543 U. S. 220 (2005). But thanks to an unpersua
sive attempt to distinguish Apprendi,5 and a reluctant
Apprendi dissenter, McMillan survived over the protest of
four Members of the Court. See Harris, 536 U. S., at 569–
570 (BREYER, J., concurring in part and concurring in
judgment) (“I cannot easily distinguish Apprendi . . . from
this case in terms of logic. For that reason, I cannot agree
with the plurality’s opinion insofar as it finds such a dis
tinction. At the same time . . . I cannot yet accept [Ap
prendi’s] rule”). It appears, however, that the reluctant
Apprendi dissenter may no longer be reluctant.6
I am therefore in full agreement with JUSTICE THOMAS’
separate writing today, post, at 1–2, as I was with his
Harris dissent. McMillan and Harris should be overruled,
at least to the extent that they authorize judicial factfind
ing on a preponderance of the evidence standard of facts
that “expos[e] a defendant to [a] greater punishment than
what is otherwise legally prescribed . . .” Harris, 536
U. S., at 579 (THOMAS, J., dissenting). Any such fact is the
functional equivalent of an element of the offense.

——————
5 Consistent with the attempt in Harris v. United States, 536 U. S.

545 (2002), to distinguish Apprendi, JUSTICE KENNEDY’s fine opinion for
the Court today employs some of the same acrobatics to distinguish
Harris from the present case. Harris also involved §924(c)(1), though a
different subsection; its reading of the mandatory minimum for “bran
dishing” a firearm contained in 18 U. S. C. §924(c)(1)(A) as a sentencing
factor is not so easily distinguished from the nearly identical manda
tory minimum for possessing a “machinegun” under §924(c)(1)(B).
6 “But in Harris, I said that I thought Apprendi does cover mandatory

minimums, 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
minimums are treated like the maximums for Apprendi purposes,
should we reset the case for argument?” Tr. of Oral Arg. 20 (question
by BREYER, J.).
6 UNITED STATES v. O’BRIEN

STEVENS, J., concurring

III
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.
 Cite as: 560 U. S. ____ (2010) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1569
_________________

UNITED STATES, PETITIONER v. MARTIN O’BRIEN

AND ARTHUR BURGESS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[May 24, 2010]

JUSTICE THOMAS, concurring in the judgment.
In Harris v. United States, 536 U. S. 545 (2002), this
Court held that “ ‘[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum,’ whether the statute calls
it an element or a sentencing factor, ‘must be submitted to
a jury, and proved beyond a reasonable doubt,’ ” id., at 550
(quoting Apprendi v. New Jersey, 530 U. S. 466, 490
(2000)). I continue to believe that this constitutional
requirement applies to sentencing facts that, like the
machinegun enhancement at issue here, 18 U. S. C.
§924(c)(1)(B)(ii), “alte[r] the [defendant’s] statutorily
mandated sentencing range, by increasing the mandatory
minimum sentence,” regardless of whether they alter the
statutory maximum penalty, Harris, 536 U. S., at 577
(THOMAS, J., dissenting); see id., at 577–578 (“As a matter
of common sense, an increased mandatory minimum
heightens the loss of liberty and represents the increased
stigma society attaches to the offense. Consequently, facts
that trigger an increased mandatory minimum sentence
warrant constitutional safeguards”).
In my view, it makes no difference whether the sentenc
ing fact “vaults a defendant’s mandatory minimum sen
tence” by many years, ante, at 10, or only “ ‘incremental[ly]
changes’ ” it by a few, ibid. (quoting Harris, supra, at 554).
2 UNITED STATES v. O’BRIEN

THOMAS, J., concurring in judgment

Nor does it make a difference whether the sentencing fact
“involve[s] characteristics of the offender” or
“[c]haracteristics of the offense,” ante, at 8, or which direc
tion the other factors in the Court’s five-factor test may
tilt. One question decides the matter: If a sentencing fact
either “raises the floor or raises the ceiling” of the range of
punishments to which a defendant is exposed, it is, “ ‘by
definition [an] “elemen[t].” ’ ” Harris, supra, at 579
(THOMAS, J., dissenting) (quoting Apprendi, supra, at 483,
n. 10).
Without a finding that a defendant used a machinegun,
the penalty range for a conviction under §924(c)(1)(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(c)(1)(B)(ii)—thus “expos[ing] a
defendant to greater punishment than what is otherwise
legally prescribed,” Harris, 536 U. S., at 579 (THOMAS, J.,
dissenting). As a consequence, “it is ultimately beside the
point whether as a matter of statutory interpretation [the
machinegun enhancement] is a sentencing factor.” Id., at
576. “[A]s a constitutional matter,” because it establishes
a harsher range of punishments, it must be treated as an
element of a separate, aggravated offense that is submit
ted to a jury and proved beyond a reasonable doubt. Ibid.
Because the Court reaches this same conclusion based
on its analysis of a five-factor test, see ante, at 6–16, I
concur in the judgment.