Machinegunning reason: sentencing factors and mandatory minimums in United States v. O'Brien.

• Author: Scharf, William O.

Although the competition between the institutions of the judge and jury for power within the legal system is hardly new, extending back well into the hazy mist of our legal system's common law origins, (1) the Supreme Court's decision last Term in United States v. O'Brien (2) shows that the question of where the role of the judge ends and that of the jury begins remains controversial. At the heart of the issue in O'Brien was the mandatory minimum sentence, a statutory instrument favored by Congress since the mid-1980s that sets a floor under, rather than a specific value for or a ceiling on, the sentence a judge can impose on a convicted defendant. (3) For more than a decade, the Court has made clear that the requisite standard for increases in the maximum available sentence in a given case is proof to a jury beyond a reasonable doubt. (4) In O'Brien, the Court found that the statutory provision at issue defined a criminal element and not a sentencing factor, but upheld the notion that an increase in a defendant's mandatory minimum sentence could be ordered on the basis of sentencing factors found by a judge by evidentiary preponderance, and did not necessarily require proof to a jury beyond a reasonable doubt. In reaching this conclusion, the Court relied heavily on a test from Castillo v. United States (5) that should never have been promulgated in the first instance, thereby building law upon bad law. Furthermore, the Court's decision in O'Brien may signal a growing acceptance by the Court of the seeming incongruity of the differential constitutional treatment of maximum sentences and mandatory minimum sentences, an issue that was highly controversial less than a decade ago.

Martin O'Brien's career as a criminal ended with a number of bangs, and perhaps a whimper as well, when he received his 102-month sentence from Judge Mark Wolf of the District of Massachusetts. (6) On June 16, 2005, O'Brien and a number of accomplices waited in a minivan for the arrival of an armored car making a scheduled cash delivery to a bank in Boston's North End. On its appearance, they sprung into action. Armed to the teeth with a Sig Sauer semi-automatic handgun, an AK-47 semi-automatic rifle, and, crucially, a fully automatic Cobray MAC-11 machine pistol, (7) O'Brien and his companions ordered the one visible guard to lie on the ground. As they were disarming him and firing warning shots into the air, a second guard ran away into a nearby restaurant. This act of defiance was enough to spook O'Brien and his band of latter-day-Dillingers, and they promptly fled the scene. The police, acting on apparently excellent intelligence, were able to find the weapons after executing a search warrant on the very night of the attempted robbery. O'Brien was arrested on June 21. (8)

A grand jury returned a multicount indictment in July 2005, which included a count charging the defendants with using, carrying, or possessing firearms in furtherance of a crime of violence, in violation of 18 U.S.C. [section] 924(c) (2006). (9) On February 21, 2007, a second superseding indictment was handed down, adding an additional count charging the defendants with having used, carried, and possessed a machinegun in furtherance of a crime of violence, in violation of 18 U.S.C. [section] 924(c)(1)(B)(ii), a provision carrying a mandatory minimum sentence of thirty years imprisonment. (10)

This last charge was eventually dismissed after Judge Wolf ruled that [section] 924(c)(1)(B)(ii), the machinegun provision, was an element of a crime to be proved beyond a reasonable doubt to the jury, and not, as the Government asserted, a mere sentencing factor to be proved by a preponderance of the evidence to the sentencing judge. (11) O'Brien and his codefendants pled guilty to the remaining robbery charges and the [section] 924(c) firearm charge that did not explicitly include the machinegun allegations. (12) O'Brien and one other codefendant were sentenced to less than thirty years imprisonment over the Government's renewed assertion that [section] 924(c)'s machinegun provision laid out a mandatory sentencing factor that was still implicated by the case, and not an element of a crime. (13)

The Government appealed the sentence to the First Circuit, which affirmed in an opinion by Judge Michael Boudin. (14) Judge Boudin noted that six circuits had already ruled in favor of the Government's interpretation of the statute, with only one circuit supporting the defendant's interpretation. (15) Still, he wrote for a unanimous panel, affirming the district court's decision on the basis that the Supreme Court's unanimous decision in Castillo controlled. He explained that Castillo was "close to binding" because it interpreted a previous version of the machinegun provision in [section] 924(c) as setting out an element, and that any narrow reconsideration or distinguishing of that case was the prerogative of the Supreme Court, not of the circuits. (16)

The Supreme Court predictably--given the severity of the circuit split on this issue--granted certiorari. (17) The Court affirmed Judge Boudin's opinion unanimously, with Justice Kennedy writing the opinion of the Court, which seven others joined. In addition to joining Justice Kennedy's opinion, Justice Stevens wrote a separate concurrence. Justice Thomas wrote separately and concurred only in the judgment. (18)

Justice Kennedy's opinion began by discussing Apprendi v. New Jersey, (19) the Supreme Court's landmark 2000 decision in which it struck down a state sentencing law that allowed judges to increase the statutorily allowed maximum sentence of a given crime with a finding by a preponderance of the evidence that a defendant had acted with a purpose to intimidate. (20) In that case, the Court held that the Fourteenth Amendment's Due Process Clause required that any increase in a maximum sentence that a defendant faced had to be grounded in a factual determination made by a jury on the basis of proof beyond a reasonable doubt. (21) In addition to relying on Apprendi, Justice Kennedy necessarily rooted his opinion in the well-established background understanding that it is ultimately Congress's decision whether a given statutory provision sets out a sentencing factor or an element, and that Congress's intent with respect to a given provision can be found by "look[ing] to the statute's language, structure, subject matter, context, and history." (22) Having laid this groundwork, Justice Kennedy proceeded to analyze the Court's decision in Castillo for its relevance to the instant matter.

Castillo was a case involving Branch Davidians who had been involved in the famous standoff with federal agents outside of Waco, Texas, in 1993. Castillo and his codefendants were accused of conspiring to murder federal officers. Their indictment included a [section] 924(c) charge that accused them of having used a machinegun within the meaning of that statute. (23) Section 924(c)(1) at that time read, in relevant part: "Whoever, during and in relation to any crime of violence.., uses or carries a firearm, shall, in addition to the...