U.S. Supreme Court to decide whether gun is an element for a judge or jury to decide

By Kimberly Atkins Dolan Media Newswires BOSTON, MA--The U.S. Supreme Court is set to decide whether a key provision of a federal criminal statute is an element of a crime for a jury to decide, or a sentencing factor that should be left up to a judge. The case, U.S. v. O'Brien, involves two would-be armored car robbers. Martin O'Brien and Arthur Burgess attempted to rob an armored car that was making a delivery to a Boston bank. One of the men allegedly pulled a gun on one of the car's guards. When the other guard fled, the men abandoned the attempt and fled as well, without taking money. Later, police obtained a search warrant for the suspects' homes and found three loaded firearms, including a pistol that had been modified to act as a automatic weapon. A federal grand jury indicted the men on a number of charges, including carrying a machine gun during a crime of violence. The relevant provision of federal law contains a series of escalating mandatory minimum sentences depending on the underlying crime and the manner in which the gun was used. They pleaded guilty and were sentenced to 180 months and 264 months respectively. The government appealed, arguing that the crimes subjected the defendants to a 30-year mandatory minimum consecutive sentence under Title 18 U.S.C. § 924(c)(1). The defendants argued that they were not subject to the 30-year mandatory minimum sentence for using a machine gun unless the fact was charged and proven to a jury beyond a reasonable doubt. The government argued that the nature of the weapon should be found by the judge as a sentencing matter. But the 1st Circuit disagreed, relying on upon the 2000 Supreme Court decision in Castillo v. U.S. - which interpreted an older version of the law - holding that the nature of the firearm is an element of the offense for a jury to find, not a sentencing factor for the judge to decide. The U.S. Supreme Court granted certiorari. Parsing the statute for meaning At oral arguments Tuesday, attorneys focused on parsing the words - and even the punctuation - of the statute in search of Congress' intent. Benjamin Horwich, assistant to the solicitor general arguing on behalf of the government, pointed to the language to support his contention that the gun provision is a sentencing element left up to a judge to decide. ''The difference in the new statute is that Congress has moved [the gun language] away - textually, conceptually, structurally away - from the [language listing] the elements,'' Horwich said. ''But it didn't,'' said Justice Sonia Sotomayor, noting that the language is still near other crime elements. ''So I don't know what it means to say that it 'moved it away' from the elements.'' Justice Ruth Bader Ginsburg asked if the gun element was completely separate from the underlying crime. ''You are saying this is an add-on to an underlying offense?'' Ginsburg asked. ''I wouldn't describe it as an add-on,'' Horwich said. ''It is a separate federal crime.'' Jeffrey Fisher, a Supreme Court litigator and professor at Stanford University Law School arguing on behalf of the defendants, said that the Court's previous holding in Castillo showed that the statute, despite its amendment by Congress in 1998, controls. As Fisher dug deep into a detailed examination of the wording of each subsection of the law, Justice Anthony Kennedy searched for a broader principle. ''I don't want to interrupt your nice organization here,'' Kennedy said. ''But what is the principle, the general rule - other than how awful this is?'' ''The general principle, at least in terms of this Court's Sixth Amendment law, is that: The critical question to ask is whether the defendant could receive the sentence the government seeks without the fact at issue,'' Fisher said. Fisher also made a constitutional argument that allowing a judge to decide the element violates defendants' constitutional rights. ''What Congress does is step in and manipulate the elements of a crime in order to relieve the government of its obligation to prove ordinary and traditional elements,'' Fisher said. ''Then we have a pure due process problem, irrespective of any Sixth Amendment problem ... Congress - without a peep or a mutter or anything - stepped in and took a fact that had to be proved by a jury beyond a reasonable doubt [and changed it] to a factor for a judge to prove by a preponderance of the evidence.'' Published: Thu, Mar 18, 2010

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