United States Court of Appeals
For the First Circuit
No. 07-2312
UNITED STATES OF AMERICA,
Appellant,
v.
MARTIN O'BRIEN and ARTHUR BURGESS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin and Dyk,* Circuit Judges,
and Domínguez,** District Judge.
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.
September 23, 2008
*
Of the Federal Circuit, sitting by designation.
**
Of the District of Puerto Rico, sitting by designation.
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
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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
1
Although the definitional section governing section 924(c)
does not separately define machine-gun, the term has been widely
taken to mean a fully automatic weapon that fires continuously with
a single pull on the trigger. See, e.g., 26 U.S.C. § 5845 (2000).
A semi-automatic, by contrast, chambers a new round automatically
but requires a new pull on the trigger to fire.
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(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 (2000), a decision construing an earlier version of
the statute that was supplanted by the present law in 1998. Id. at
125. 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
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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. At the time, the new
2
United States v. Cassell, 530 F.3d 1009, 1016-17 (D.C. Cir.
2008); United States v. Ciszkowski, 492 F.3d 1264, 1268 (11th Cir.
2007); United States v. Gamboa, 439 F.3d 796, 811 (8th Cir. 2006);
United States v. Avery, 295 F.3d 1158, 1169-71 (10th Cir. 2002);
United States v. Harrison, 272 F.3d 220, 225-26 (4th Cir. 2001);
and United States v. Sandoval, 241 F.3d 549, 550 (7th Cir. 2001).
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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 (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 (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
3
Indeed, the Castillo Court acknowledged that the structure of
the amended statute supported reading the machine-gun provision as
a sentencing factor. Castillo, 530 U.S. at 125.
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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 (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
(1986); Harris, 536 U.S. at 557-568 (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 (2005); Blakely v.
Washington, 542 U.S. 296 (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 (1999) ("serious bodily injury" resulting from
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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, 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
sentence).
As for the Court's own criteria, they are not easily
applied or balanced against each other. For example, the Court
tells us--seemingly as a policy consideration--that a significantly
longer prison term points toward treating the triggering fact as an
element of the crime; this very circumstance was cited in Castillo
as one factor supporting the result. 530 U.S. at 131. A thirty-
4
The same policy and historical factors have also sometimes
led the Court to the opposite result. See Almendarez-Torres, 523
U.S. at 229-47 (recidivism provision of 8 U.S.C. § 1326(b)(2) is a
sentencing factor); Harris, 536 U.S. at 552-56 (brandishing
provision of section 924(c) is a sentencing factor).
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year minimum is indeed long; but only a five-year increase would
result if a short-barreled rifle were the weapon, and both
provisions are phrased in exactly the same terms and in
structurally parallel provisions. Compare 18 U.S.C. §
924(c)(1)(B)(i), with id. § 924(c)(1)(B)(ii).
The Court has also asked whether treating a fact as an
element was "traditional" and whether doing so would "complicate a
trial or risk unfairness." Castillo, 530 U.S. at 126-28.
Discerning a "tradition" in this sphere is far from easy: until the
1980s, sentencing was largely unstructured; but Castillo said that
firearm type is traditionally an element of the offense--a judgment
unaffected by the rephrasing of the statute. Nor has the
restructuring made it less feasible to ask the jury to determine
the nature of the weapon or defendant's knowledge of it.
In all events, a starker reality informs our choice in
this case. Whatever uncertainty may attend the Court's criteria
and the pattern formed by its precedents, one thing is clear: in
Castillo the Supreme Court found that the machine-gun provision in
the pre-1998 version of section 924(c) created an element of the
crime to be tried by a jury. The language used in this earlier
version was slightly more favorable to the defendants than the
current version but not markedly so, nor was the original language
so clear that it preordained the Court's result.
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Prior to the 1998 amendment, the language defined the
crime in the same language used now, prescribed a fixed sentence of
five years, and--after listing other facts leading to fixed terms--
said that the penalty "if the firearm is a machinegun . . . [is]
imprisonment for thirty years." 18 U.S.C. § 924(c)(1) (1997). The
current version merely breaks what was a single run-on sentence
into subparagraphs (one for each additional fact), converts the
fixed-term sentences of the earlier version into minimum sentences,
and moves the verb to the end of each subparagraph, to wit:
(B) If the firearm possessed by a person
convicted of a violation of this subsection --
. . .
(ii) is a machinegun . . . , the person shall
be sentenced to a term of imprisonment of not
less than 30 years.
There is no evidence that the breaking up of the sentence
into the present subdivisions or recasting of language was anything
more than the current trend--probably for ease of reading--to
convert lengthy sentences in criminal statutes into subsections in
the fashion of the tax code. In fact, the stated objective of re-
writing section 924(c) was another issue entirely.5 Nothing in the
5
The debates and hearings focus on Congress' aim to
criminalize "mere" possession of firearms after the Supreme Court's
decision in Bailey v. United States, 516 U.S. 137 (1995), which had
held that "use" of a firearm required the government to show active
employment of the weapon. See, e.g., Examining the Bailey
Decision's Effect on Certain Prosecutions of Violent and Drug
Trafficking Crimes: Hearing Before the Committee on the Judiciary
of the United States Senate, 104th Cong. (1996).
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legislative history that we could find says anything about the
element versus sentencing factor distinction.
The only explicit substantive difference between the
earlier version and the new one is the conversion of the numerical
figures from fixed-term sentences to mandatory minimums. The
government says that mandatory minimums are traditionally associated
with sentencing. But so are prescribed sentences (as in the prior
version) and maximum sentences (which are components of most
criminal statutes). It would be a different matter if Congress had
explained the change as one aimed at Castillo itself; but Castillo
was decided after the new statute had been passed.
Absent a clearer or more dramatic change in language or
legislative history expressing a specific intent to assign judge or
jury functions, we think that Castillo is close to binding. True,
the Court in Castillo declined to decide our case, only saying that
the new version could not be used to impute a meaning to the old.
530 U.S. at 125. But most of the reasoning offered in Castillo
applies with almost equal force to the new statute. If Castillo is
to be reconsidered or narrowly distinguished, this is customarily
the Court's "prerogative." State Oil Co. v. Khan, 522 U.S. 3, 20
(1997).
We recognize that six circuits have reached a different
outcome and concede that, if we were writing on a clean slate, the
statute's language would be a powerful argument for the government's
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result. The problem is that the prior statutory language also
favored the government. Yet a unanimous Supreme Court found
persuasive contrary arguments of policy and tradition, which have
not in the least been altered by the statute's revision.
Affirmed.
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ADDENDUM
Before the statute was restructured, the pertinent part of 924(c)
read as follows:
Whoever, during and in relation to any crime
of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime which provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which he may be prosecuted in a court of the
United States, 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, short-barreled shotgun, or
semiautomatic assault weapon, 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. In
the case of his second or subsequent
conviction under this subsection, such person
shall be sentenced to imprisonment for twenty
years, and if the firearm is a machinegun, or
a destructive device, or is equipped with a
firearm silencer or firearm muffler, to life
imprisonment without release. (FOOTNOTE 1)
Notwithstanding any other provision of law,
the court shall not place on probation or
suspend the sentence of any person convicted
of a violation of this subsection, nor shall
the term of imprisonment imposed under this
subsection run concurrently with any other
term of imprisonment including that imposed
for the crime of violence or drug trafficking
crime in which the firearm was used or
carried.
Following revision in 1998, the relevant language now reads:
(A) Except to the extent that a greater
minimum sentence is otherwise provided by this
subsection or by any other provision of law,
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any person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court
of the United States, 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
imprisonment of not less than 30 years.
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