United States v. O

Appealed from the United States Court of Appeals for the First Circuit (Sept. 2008)

Oral argument: Feb. 23, 2010

SENTENCE ENHANCEMENT, ELEMENTS OF A CRIME, SENTENCING FACTORS

Respondents, Arthur Burgess and Martin O’Brien, pled guilty to a variety of criminal charges, including possession of a firearm in furtherance of a violent crime. At sentencing, the judge determined that he could not apply a thirty-year mandatory minimum sentence because the government had not proven beyond a reasonable doubt that defendants had possessed an automatic weapon during the crime. Petitioner, the United States, contends the judge could have found possession by a preponderance of the evidence as a sentencing factor and applied the thirty-year sentence enhancement. Respondents, Burgess and O’Brien, argue that the government must prove possession to a jury beyond a reasonable doubt as an element of the crime.

Question presented

Section 924(c)(1) of Title 18 of the United States Code provides for a series of escalating mandatory minimum sentences depending on the manner in which the basic crime (viz., using or carrying a firearm during and in relation to an underlying offense, or possessing the firearm in furtherance of that offense) is carried out. The question presented is whether the sentence enhancement to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

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Issue

When a sentence is enhanced as a result of firearm possession during a federal crime, does the prosecution have to prove the nature of the weapon beyond a reasonable doubt, or can the judge merely find the truth of the possession by a preponderance of the evidence and use the information as a factor in deciding the ultimate sentence?

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Facts

On June 16, 2005, Martin O’Brien, Arthur Burgess, and a third accomplice, attempted to rob an armored car. See United States v. O'Brien, 542 F.3d 921, 922 (1st Cir. 2008). Among the three, they carried a pistol, a semi-automatic assault rifle, and a second pistol that had been modified to operate as a fully automatic weapon. See id. O’Brien and Burgess were apprehended and indicted. Among other counts, the defendants were charged with "using or carrying a firearm in furtherance of a crime of violence" and "using a machine-gun in furtherance of a crime of violence." See id.; 18 U.S.C. § 924(c) The modified pistol was listed in the indictment as both a firearm and a machine-gun. See id.

18 U.S.C. § 924 provides enhanced penalties for the use or possession of a firearm in furtherance of a crime. Pursuant to 18 U.S.C. § 924(c), anyone who uses, or carries a firearm while committing a crime of violence or possesses a firearm "in furtherance of" a crime of violence must be sentenced to a minimum of five years in prison. See O'Brien, 542 F.3d at 922–23. If the weapon is a machine-gun, the statutory minimum is thirty years in prison. See 18 U.S.C. § 924(c)(1)(B)(ii); O'Brien, 542 F.3d at 923.

At trial, the district court ruled that possession of a machine-gun during the attempted robbery was an element of the crime that must be proved by the prosecution beyond a reasonable doubt, rather than a sentencing enhancement that could be found by the judge by a preponderance of the evidence. See O'Brien, 542 F.3d at 923. As a result, the government dismissed the count that charged defendants with the use of a machine-gun in furtherance of a crime of violence after concluding that it could not prove beyond a reasonable doubt that the defendants knew the pistol had been modified to operate as an automatic weapon. See id. Despite the government's argument that possession of a machine-gun was a sentencing factor and could be found by the judge in order to impose the thirty-year minimum sentence, the defendants were sentenced to less than thirty years in prison. See id.

The government appealed, arguing that the thirty-year provision was a mandatory sentencing factor and the district court judge erred in treating it as an element of the crime. See O'Brien, 542 F.3d at 923. On appeal, the U.S. Court of Appeals for the First Circuit affirmed the district court opinion, relying on the Supreme Court’s previous interpretation of 18 U.S.C. § 924(c), which found that the machine-gun provision created an element of the crime and must be tried by the jury. See id. at 925. Although the Supreme Court's interpretation predated an amendment of Section 924(c), the First Circuit found that the changes instituted by the amendment were not dramatic enough to change the machine-gun provision from an element of the crime to a sentencing factor. See id. at 926. Consequently, the First Circuit determined that the Supreme Court’s previous interpretation was nearly binding. See id. The government appealed, and the Supreme Court granted certiorari on the issue of whether the machine-gun provision constitutes an element of the crime or a sentencing factor.

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Discussion

This case will determine whether the government must prove a defendant’s possession of an automatic weapon beyond a reasonable doubt to a jury in order for the defendant to receive an enhanced sentence due to the possession, or whether a judge may impose an enhanced sentence after finding the possession by a preponderance of the evidence as a sentencing factor that requires a mandatory minimum sentence. This case will have a significant impact on the government’s burden of proof for sentence enhancement as a result of possession of an automatic weapon and clarifying the proper roles of the judge and jury in a criminal trial.

How Will This Case Affect the Administration of Criminal Trials?

Petitioner, the United States, contends that treating possession of an automatic weapon as a sentencing factor will ensure consistent application of the enhancement throughout criminal trials. See Brief for Petitioner, United States at 33. The United States argues that this consistency is particularly important, given the great harm automatic weapons can inflict when used during a crime. See id. at 31. Additionally, the United States asserts that allowing the judge to treat the determination of the firearm type as a sentencing factor will simplify the guilt stage of the trial. See id. at 33. The United States contends that courts could capture this efficiency without sacrificing the accuracy of the trial process because such evidence is usually technical and clear-cut. See id. at 33.

In contrast, Respondents, Martin O'Brien and Arthur Burgess, assert that administrative concerns such as streamlining the trial process do not justify possible infringements on a defendant's right to a fair trial. See Brief for Respondent, Arthur Burgess, at 35. Amici for respondents argue that requiring the government to prove the possession of automatic weapons beyond a reasonable doubt is not an unduly high administrative burden because it only requires the government to prove a single additional fact. See Brief of the National Association of Federal Defenders in Support of Respondents at 17–18. Additionally, amici argue that reliance on mandatory minimum sentences actually harms the trial process by focusing on a single aspect of the crime rather than the victim's actual pain and suffering and failing to address racial disparity in sentencing. See Brief of Center for the Administration of Criminal Law in Support of Respondents at 23–25. As a result, amici contend, mandatory minimum sentences work contrary to modern sentencing reform. See id. at 27.

How Will This Case Affect the Roles of the Judge and Jury in Criminal Trials?

The United States asserts that allowing a judge to determine whether the defendant possessed an automatic weapon frees the jury and trial proceedings from the burden of an additional finding. See Brief for United States at 33. Given that the evidence required for this type of finding is often technical, the United States argues that a jury determination is unnecessary and unlikely to improve the accuracy of the finding, as the judge can assess the evidence just as accurately. See id. Finally, the United States contends that allowing a judge to find possession of an automatic weapon as a sentencing factor by a preponderance of the evidence relieves the government of an evidentiary burden that is potentially impossible to meet, due to the fact that modified weapons do not always appear outwardly different, and a defendant may lack knowledge that the weapon is automatic. See id. at 34. The United States argues that there is no indication that Congress intended to exempt "oblivious offenders” from the statute, and consequently, a judge is better equipped to decide the issue of possession by a preponderance of the evidence. See id.

Burgess and O'Brien, however, contend that removing the issue of possession of an automatic weapon from the jury violates defendants' Sixth Amendment right to a jury trial and due process right to force the government to prove its case beyond a reasonable doubt. See Brief for Burgess at 31–32; Brief for Respondent, Martin O'Brien at 37, 52–53. Amici assert that allowing a judge to individually determine a fact that leads to a mandatory minimum sentence presents the possibility of "judicial despotism" and threatens the American tradition that a unanimous jury of citizens stands between the government and its ability to impose criminal punishment. See Brief of the National Association of Federal Defenders at 17; Brief of Center for the Administration of Criminal Law at 17–18. Additionally, allowing the judge to address the issue of possession as a sentencing factor may cause the judge to impose a sentence much harsher than the Federal Sentencing Guidelines would recommend. See Brief for Burgess at 41. Finally, amici argue that allowing a judge to find possession of an automatic weapon by a preponderance of the evidence threatens a defendant's right to require the government put forth its best evidence against him. See Brief of Center for the Administration of Criminal Law at 18.

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Analysis

In Apprendi v. New Jersey, the Supreme Court held that in a federal criminal trial any fact (other than a prior conviction) that subjected a defendant to a longer sentence than he would otherwise receive is an element of the underlying offense and thus must be found by a jury rather than the judge. In 1998 Congress rewrote 18 U.S.C. § 924(c) and significantly altered the structure of the statute in the process. Two years later, the Supreme Court determined that under the pre-1998 statute whether a firearm used during the commission of a crime was an automatic weapon was an element of the crime and had to be submitted to the jury. See Castillo v. United States, 530 U.S. 120 (2000). In this case, the Supreme Court will determine whether the possession of an automatic weapon remains an element of the crime following the 1998 revision of § 924(c). This case will affect the burden of proof the federal government must satisfy to support its request for enhanced sentences for defendants who carry automatic weapons during the commission of crimes.

Is the Automatic Weapon Provision Still an Element of the Offense Following the 1998 Revision of § 924(c)?

Petitioner, United States, argues that the language and structure of the current version of 18 U.S.C. § 924(c) provide that the question of whether a firearm is an automatic weapon is a sentencing factor to be determined by a judge, not an element of the offense to be submitted to a jury. See Brief for Petitioner, United States at 14. The United States contends that the provisions listed in § 924(c)(1)(B) must be sentencing factors because they "apply to a person convicted of a violation of this subsection. See id. The United States argues that the words "this subsection" refer to § 924(c)(1)(A). See id. at 14. According to the United States, this interpretation is reinforced by Clauses (B)(i), the automatic weapon provision at issue in this case, and (B)(ii), which each dictate how defendants “shall be sentenced.” See id. The United States also argues that the statute is structured like many other federal laws which list the offense elements in a single sentence followed by the sentencing factors in subsections. See id. at 17. Section 924(c)(1)(B)(i) follows this pattern, according to the United States. See id. Furthermore, the United States contends that because § 924(c)(1)(B)(i) is positioned amongst a series of other sentencing factors, it also must be a sentencing factor rather than an element of the underlying crime. See id. at 20.

Respondents, Martin O’Brien and Anthony Burgess (collectively, "O'Brien"), contend that the revised structure and language of § 924(c) did not alter the meaning of the statute. See Brief for Respondent, Martin O'Brien at 24; Brief for Respondent, Arthur Burgess at 10-11. O’Brien argues that the words "violation of this subsection" in the introduction to § 924(c) refer to the entirety of § 924(c)(1). See Brief for O'Brien at 30. Under this approach, O’Brien contends that the automatic weapon provision of § 924(c)(B)(i) is an element of a separate offense and not merely a sentencing factor. See id. Additionally, O’Brien argues that the changes to the structure of § 924(c) simply make the meaning of statute easier to comprehend. See id. at 34. Without the subsection-based structure, O’Brien believes the resulting statute would have been “an unwieldy mess." See id. at 31. According to O'Brien, this re-structuring was part of a trend in the late 1990s and early 2000s to rewrite criminal statutes into subsections. See id. at 34. O’Brien contends that the 1998 revisions to § 924(c) were mostly cosmetic and did not transform the automatic weapon provision from an element of an offense to a sentencing factor. See id.

O’Brien also argues that Congress did not intend to change the automatic weapon provision to a sentencing factor with the 1998 revision. See Brief for Burgess at 17. In fact, O’Brien contends that Congress enacted the revision to change an unrelated subsection of the statute in response to Bailey v. United States. See Brief for O'Brien at 21-22. The legislative history is silent as to whether Congress intended to turn the automatic weapon provision into a sentencing factor. See Brief for O'Brien at 22 (quoting Brief for United States at 29.) O’Brien further argues that the Supreme Court generally refuses to “disturb settled meanings of particular aspects of an amended statute, 'absent a clear indication from Congress of a change in policy.'” See Brief for O'Brien at 18 (quoting Grogan v. Garner, 498 U.S. 279, 290 (1991)).

In response, the United States contends that the restructured statute reflects Congress’s intent to define possession of an automatic weapon as a sentencing factor rather than as an offense element. See Brief for United States at 30. According to the United States, Congress believed that possession of an automatic weapon should trigger a lengthier sentence. See id. at 32. The United States argues that treating the automatic weapons provision as a sentencing factor best conforms to Congress's desire to impose harsh punishments on criminals who possess automatic weapons. See id.

How do Secondary Factors and Constitutional Concerns Affect the Interpretation of § 924(c)?

O'Brien contends that the secondary factors other than language and structure which influenced the Court’s interpretation of § 924(c) in Castillo have not changed since that decision. See Brief for O'Brien at 24. First, O’Brien argues that determining what type of weapon was used during the commission of a crime has traditionally been an element of the offense. See id. at 25. O’Brien also contends that the thirty-year mandatory minimum sentence for possession of an automatic weapon is so severe that it favors treating such possession as a separate element of the crime. See id. at 27. Additionally, O’Brien argues that the lack of explicit legislative intent to transform the provision into a sentencing factor indicates that the interpretation should not change either. See id .at 28-29.

The United States maintains that secondary factors do not clearly favor O’Brien's interpretation of § 924(c). See Brief for United States at 21. The United States argues that prior to the 1998 revision, federal judges routinely elevated sentences based on the type of firearm used during a crime. See id. at 23. Also, the United States contends that mandatory minimum sentences are inherently similar to sentencing factors, as they constrain rather than extend a judge’s discretion. See id. at 24. Finally, the United States points out that the use of an automatic weapon does not increase a defendant’s exposure to punishment, because a judge may impose up to a life sentence for any conviction under § 924(c)(1) even without such a finding. See id. at 25.

O’Brien argues that treating the automatic weapon provision as a sentencing factor would violate his Fifth Amendment due process rights as well as his Sixth Amendment right to a jury trial. See Brief for O'Brien at 37. Defendants have a right to have all the facts essential to their punishment adjudicated by a jury, and O'Brien contends that if the provision is a sentencing factor, a judge would make that determination and thereby strip a defendant of his jury trial rights. See Brief for Burgess at 31. Finally, O’Brien argues that a thirty-year sentence would not be justified for a violation of § 924(c)(1) absent an automatic weapon finding by the jury. See Brief for O'Brien at 46. Such a sentence, according to O’Brien, would violate the Sentencing Reasonableness Act, and run afoul of Gall v. United States, which held that a district court must provide an explanation that justifies sentences that are harsher than those prescribed by the United States Sentencing Guidelines. See Brief for O'Brien at 41.

The United States contends that treating the automatic weapons provision as a sentencing factor will ensure consistent application of the enhancement. See Brief for United States at 33. Furthermore, the United States argues that there are several other federal crimes with similarly severe sentence enhancement provisions that are treated as sentencing factors to be determined by a judge. See id. at 24-30.

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Conclusion

In this case, the Supreme Court must determine whether possession of an automatic weapon during a crime of violence or drug trafficking crime is an element of the offense to be submitted to a jury, or a sentencing factor to be determined by the judge. Petitioner, United States, argues that Congress revised the statute in question and thereby designated the automatic weapon enhancement as a sentencing factor. Respondents, Martin O’Brien and Anthony Burgess, contend that the revision did not substantively alter the statute’s meaning with regards to this issue, and that treating the provision as a sentencing factor violates the due process rights of criminal defendants. This case will affect the government’s burden of proof at sentencing and clarify the proper roles of the judge and jury in federal criminal trials.

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Authors

Prepared by: Samuel Farina-Henry and Kelly Vaughan

Edited by: Joe Rancour

Additional Sources

· Wex: Law about Sentencing

· CriminalDefenseLawyer.com: Federal Sentencing Guidelines

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Edited by: