Of the Federal Circuit, sitting by designation. *

Of the District of Puerto Rico, sitting by designation. **

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
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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 LoomisFargo 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
Although the definitional section governing section 924(c) 1

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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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
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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 machinegun 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
United States v. Cassell, 530 F.3d 1009, 1016-17 (D.C. Cir. 2

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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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. But the Supreme Court, glossing an 2

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
Indeed, the Castillo Court acknowledged that the structure of 3

the amended statute supported reading the machine-gun provision as

a sentencing factor. Castillo, 530 U.S. at 125.

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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
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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
The same policy and historical factors have also sometimes 4

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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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-
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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.
The debates and hearings focus on Congress' aim to 5

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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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 rewriting section 924(c) was another issue entirely. Nothing in the 5
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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.