Who Makes the Call? Sentencing the Firearm User Under 18 U.S.C. § 924(c) inunited States v. Alborola-Rodriguez

I. INTRODUCTION One of the basic rights of criminal defendants in our country is the right to a jury trial.1 This right "includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of 'guilty.' "2 Coupled with the jury trial right is the fact 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."3 Although the right to a jury trial in the criminal setting is absolute, the question remains whether the legislature can define the elements of a crime as questions of law and thus allow the judge to make findings relevant to those elements.4 This question arises when the legislature specifically allocates certain factual issues to be found by the judge,5 or when the statute is silent as to whether the judge or jury should make the findings.6 It seems obvious, based on the importance of the jury trial right, that when the statute is silent, the default rule should be that the jury is required to make the findings. However, not all courts have interpreted ambiguous statutes in this manner. For example, the federal circuits are split as to whether the judge is allowed to determine, during sentencing, the type of firearm used by the criminal convicted of 18 U.S.C. sec924(c), or whether the jury must make factual findings as to the type of weapon used when committing the violent or drug trafficking offense.7 Section 924(c) affords different penalties depending on the type of firearm used in relation to the crime.8 The judicial decisions surrounding the statute highlight the difficulty of drawing the thin line between the law and facts in statutory interpretation.9 In 1998, the Eleventh Circuit had the opportunity to interpret the statute and decide whether the judge or jury should make the findings relevant to the type of firearm. In United States v. AlborolaRodriguez,10 the court reviewed the decisions of the other circuits and ultimately concluded that, during sentencing, the judge, rather than the jury, is to determine the type of firearm used in the crime.11 Although the court attempted a well-reasoned decision, it came to the wrong conclusion, because it misinterpreted prior case law regarding the issue and relied too heavily on the Fifth Circuit's faulty and inconsistent ruling in United States v. Branch.12 Part II of this note gives a short history of 18 U.S.C. sec924(c) and explains the various circuit decisions which have interpreted that statute. Part III gives the facts of Alborola-Rodriguez and explains the Eleventh Circuit's reasoning. Part IV points out the error in the Eleventh Circuit's reasoning, attempts a statutory analysis of 18 U.S.C. sec924(c), and explains how the U.S. Supreme Court should rule if this issue were before it. Finally, Part V concludes that it is within the province of the jury to decide the type of firearm used in the crime and suggests specific legislative reforms. II. BACKGROUND A. History of 18 U.S.C. sec924(c) 18 U.S.C. sec924(c) was originally enacted as part of the Gun Control Act of 1968.13 In its original form, the statute provided a mandatory minimum sentence of between one and ten years for those criminals who used or carried a firearm "unlawfully during the commission of any federal felony."14 Because of weaknesses that undermined the deterrent force of the statute,15 Congress amended the statute several times. In 1984, in light of an accelerated crime rate, the Act was amended by the Comprehensive Crime Control Act of 1984 (CCCA).16 The CCCA, among other things, made it clear that "Congress intended section 924(c) to be a separate offense and punishable in addition to the predicate."17 In 1986, sec924(c) was amended again by the Firearms Owners' Protection Act.18 Two of the most important changes from this amendment were to make sec 924(c) applicable to drug offenses and distinguish among the types of firearms, "raising the mandatory minimum penalty to ten years if the firearm is a machine gun or equipped with a silencer. …