OPINION OF THE COURT
UNITED STATES V. O'BRIEN
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-1569
UNITED STATES, PETITIONER
v. MARTIN
O’BRIEN and ARTHUR BURGESS
on writ of certiorari to the united states court of
appeals for the first circuit
[May 24, 2010]
Justice Kennedy delivered the
opinion of the Court.
The Court must interpret, once
again, §924(c) of Title 18 of the United States Code. This
provision prohibits the use or carrying of a firearm in relation to
a crime of violence or drug trafficking crime, or the possession of
a firearm in furtherance of such crimes. §924(c)(1)(A). A violation
of the statute carries a mandatory minimum term of five years’
imprisonment, §924(c)(1)(A)(i); but if the firearm is a machinegun,
the statute requires a 30-year mandatory minimum sentence,
§924(c)(1)(B)(ii). Whether a firearm was used, carried, or
possessed is, as all concede, an element of the offense. At issue
here is whether the fact that the firearm was a machinegun is an
element to be proved to the jury beyond a reasonable doubt or a
sentencing factor to be proved to the judge at sentencing.
In an earlier case the Court determined that
an analogous machinegun provision in a previous version of §924
constituted an element of an offense to be proved to the jury.
Castillo v.
United States,
530 U. S. 120 (2000). The
Castillo decision, however, addressed the statute as it
existed before congressional amendments made in 1998. And in a case
after
Castillo, the brandishing provision in the post-1998
version of §924 was held to provide a sentencing factor, not an
element of the offense.
Harris v.
United States,
536 U. S. 545
(2002). In light of the 1998 amendments and the
Harris
decision, the question of how to interpret §924’s machinegun
provision is considered once more in the instant case.
I
On June 16, 2005, respondents
Martin O’Brien and Arthur Burgess attempted to rob an armored car
making a scheduled delivery of cash to a bank. Along with a third
collaborator, respondents hid in a minivan and waited for the
armored car to make its stop. Each of the men carried a firearm.
Containing nearly $2 million and attended by two guards, the
armored car arrived. A guard began to unload boxes of coins. The
three men came out of the van and, while one of them brandished his
weapon, they ordered the guards to get on the ground. One guard did
so, but the other ran to a nearby restaurant. The respondents
abandoned the robbery and fled without taking any money. No shots
were fired, and no one was injured.
Authorities apprehended
respondents and recovered the three firearms used during the
attempted robbery. The firearms were a semiautomatic Sig-Sauer
pistol, an AK47 semiautomatic rifle, and a Cobray pistol. The
Cobray pistol had been manufactured as, and had the external
appearance of, a semiautomatic firearm. According to the Federal
Bureau of Investigation, though, it operated as a fully automatic
weapon, apparently due to some alteration of its original firing
mechanism. Respondents dispute whether the Cobray in fact did
operate as a fully automatic weapon.
Respondents were indicted on multiple counts.
Relevant here are counts three and four, both of which charged
offenses under §924(c). Count three charged respondents with using
a firearm in furtherance of a crime of violence, which carries a
statutory minimum of five years’ imprisonment. Count four charged
respondents in more specific terms, alleging use of a machinegun
(the Cobray) in furtherance of a crime of violence, as proscribed
by §§924(c)(1)(A) and (B)(ii). The latter provision mandates a
minimum sentence of 30 years’ imprisonment.
The Government moved to dismiss count four on
the basis that it would be unable to establish the count beyond a
reasonable doubt. (The issues in the present case do not require
the Court to consider any contention that a defendant who uses,
carries, or possesses a firearm must be aware of the weapon’s
characteristics. This opinion expresses no views on the point.)
The Government then maintained that the
machinegun provision in §924(c)(1)(B)(ii) was a sentencing factor,
so that, if respondents were convicted of carrying a firearm under
count three, the court could determine at sentencing that the
particular firearm was a machinegun, thus activating the 30-year
mandatory minimum. The District Court dismissed count four, as the
Government requested, but rejected the Government’s position that
the machinegun provision was a sentencing enhancement to be
determined by the court at sentencing once there was a conviction
on count three. It ruled that the machinegun provision states an
element of a crime. Thus, to invoke the 30-year minimum sentence,
the Government was required to charge in the indictment, and then
prove to the jury, that the Cobray was a machinegun.
At this point, after the District Court
foreclosed the possibility of respondents’ facing a 30-year
minimum, respondents pleaded guilty to the remaining counts,
including count three. The District Court
sentenced O’Brien to a 102-month term for his §924(c) conviction,
to run consecutively with his sentence on two other counts. It
sentenced Burgess to an 84-month term for his §924(c) conviction,
also to run consecutively to his sentence on the other charges. The
Government appealed the District Court’s ruling that the §924
machinegun provision constitutes an element of an offense instead
of a sentencing factor.
The United States Court of Appeals for the
First Circuit affirmed. It looked primarily to
Castillo,
530 U. S. 120, which held that the
machinegun provision in an earlier version of §924(c) constituted
an element of an offense, not a sentencing factor. The court noted
that the statute under consideration in
Castillo had been
revised by Congress, “break[ing] what was a single run-on sentence
into subparagraphs,” and it acknowledged that the earlier repealed
version of the statute was “slightly more favorable to the
[respondents] than the current version[,] but not markedly so.” 542
F. 3d 921, 925 (2008). It found “no evidence that the breaking
up of the sentence into the present subdivisions or recasting of
language was anything more than a current trend—probably for ease
of reading—to convert lengthy sentences in criminal statutes into
subsections in the fashion of the tax code.”
Id., at 926.
The court concluded: “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,” and any reconsideration of the issue should be
left to this Court.
Ibid.; see also
Rodriguez de
Quijas v.
Shearson/American Express, Inc.,
490 U. S. 477, 484
(1989) (“If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions”).
We granted certiorari. 557 U. S. ___
(2009).
II
Elements of a crime must be
charged in an indictment and proved to a jury beyond a reasonable
doubt.
Hamling v.
United States,
418 U. S. 87, 117 (1974);
Jones v.
United States,
526 U. S. 227, 232
(1999). Sentencing factors, on the other hand, can be proved to a
judge at sentencing by a preponderance of the evidence. See
McMillan v.
Pennsylvania,
477 U. S. 79, 9192
(1986). Though one exception has been established, see
Almendarez-Torres v.
United States,
523 U. S. 224, 228
(1998), “ ‘[i]t is unconstitutional for a legislature to
remove from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed.’ ”
Apprendi v.
New Jersey,
530 U. S. 466, 490
(2000) (quoting
Jones,
supra, at 252253 (Stevens,
J., concurring)). In other words, while sentencing factors may
guide or confine a judge’s discretion in sentencing an offender
“
within the range prescribed by statute,”
Apprendi,
supra, at 481, judge-found sentencing factors cannot increase
the maximum sentence a defendant might otherwise receive based
purely on the facts found by the jury.
Subject to this constitutional
constraint, whether a given fact is an element of the crime itself
or a sentencing factor is a question for Congress. When Congress is
not explicit, as is often the case because it seldom directly
addresses the distinction between sentencing factors and elements,
courts look to the provisions and the framework of the statute to
determine whether a fact is an element or a sentencing factor.
Almendarez-Torres, supra, at 228. In examining whether the
machinegun provision in §924 is an element or a sentencing factor,
the analysis must begin with this Court’s previous examination of
the question in
Castillo.
In
Castillo, the Court considered a
prior version of §924, which provided:
“(c)(1) Whoever, during and in
relation to any crime of violence or drug trafficking crime … ,
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 [or a] short-barreled shotgun 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… .” 18 U. S. C.
§924(c)(1) (1988 ed., Supp. V).
In determining whether the machinegun provision in
the just-quoted version of §924 constituted an element or a
sentencing factor, the Court in
Castillo observed that the
bare statutory language was “neutral.” 530 U. S., at 124. It
examined five factors directed at determining congressional intent:
(1) language and structure, (2) tradition, (3) risk of unfairness,
(4) severity of the sentence, and (5) legislative history.
Id., at 124131. The Court unanimously concluded that the
machinegun provision provided an element of an offense, noting that
the first four factors favored treating it as such while
legislative history did not significantly favor either side.
Ibid.
III
A
Section 924(c) was amended to
its current form in 1998.
The amendment had been enacted when the Court
considered Castillo,
supra, at 125, but the pre-1998
version of the statute was at issue there. The instant case
concerns the post-1998 (and current) version of the statute, which
provides:
“(A) Except to the extent that a
greater minimum sentence is otherwise provided by this subsection
or by any other provision of law, any person who, during and in
relation to any crime of violence or drug trafficking crime … 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.” 18 U. S. C. §924(c)(1) (2006 ed.).
The 1998 amendment did
make substantive changes to the statute, to be discussed below; but
for purposes of the present case the most apparent effect of the
amendment was to divide what was once a lengthy principal sentence
into separate subparagraphs. This Court’s observation in
considering the first
Castillo factor, that “Congress
placed the element ‘uses or carries a firearm’ and the word
‘machinegun’ in a single sentence, not broken up with dashes or
separated into subsections,” 530 U. S.
, at 124125, no
longer holds true. Aside from this new structure, however, the 1998
amendment of §924 did nothing to affect the second through fifth
Castillo factors. Each of the factors, except for
legislative history (which, assuming its relevance, remains
relatively silent), continues to favor the conclusion that the
machinegun provision is an element of an offense.
Legal tradition and past congressional
practice are the second
Castillo factor. The factor is to
be consulted when, as here, a statute’s text is unclear as to
whether certain facts constitute elements or sentencing factors.
Sentencing factors traditionally involve characteristics of the
offender—such as recidivism, cooperation with law enforcement, or
acceptance of responsibility.
Id., at 126. Characteristics
of the offense itself are traditionally treated as elements, and
the use of a machinegun under §924(c) lies “closest to the heart of
the crime at issue.”
Id., at 127. This is no less true
today than it was 10 years ago in
Castillo.
Unsurprisingly, firearm type is treated as an element in a number
of statutes, as “numerous gun crimes make substantive distinctions
between weapons such as pistols and machineguns.”
Ibid.;
see,
e.g., 18 U. S. C. §§922(a)(4), 922(b)(4), and
922(
o)(1).
The Government counters that this tradition or
pattern has evolved since the version of §924(c) under review in
Castillo was enacted. The Government contends that the
Federal Sentencing Guidelines altered the tradition by treating the
possession of a firearm as a sentencing factor. Brief for United
States 23 (citing United States Sentencing Commission, Guidelines
Manual §2K2.1(a)(5) (Nov. 1998) (raising base offense level “if the
offense involved a firearm”)).
The argument is not persuasive. The Sentencing
Reform Act of 1984, 98 Stat. 1987, establishing the Federal
Sentencing Guidelines, was enacted four years before the version of
§924 under review in
Castillo, see Anti-Drug Abuse Act of
1988, §6460, 102 Stat. 4373. While the resulting Guidelines were
not effective until 1987, this was still before the 1988 enactment
of the statute at issue in
Castillo, and 13 years before
this Court’s conclusion in
Castillo that firearm type is
traditionally treated as an offense element. The Government cannot
claim the benefit of any shift in how the law traditionally treats
firearm type from the Guidelines, for that supposed shift would
have occurred before the 1988 version of §924 was enacted. The
Guidelines were explicitly taken into account when this Court
analyzed the traditions in
Castillo. 530 U. S., at 126
(discussing Federal Sentencing Guidelines in determining what
traditionally qualifies as a sentencing factor).
The third
Castillo factor, potential
unfairness, was unchanged by the restructuring of §924. The Court
explained in
Castillo that treating the machinegun
provision as a sentencing factor “might unnecessarily produce a
conflict between the judge and the jury” because “a jury may well
have to decide which of several weapons” a defendant used.
Id., at 128. The concern was that the judge may not know
which weapon the jurors determined a defendant used, and “a judge’s
later, sentencing-related decision that the defendant used the
machinegun, rather than, say, the pistol, might conflict with the
jury’s belief that he actively used the pistol.”
Ibid.
This same concern arises under the current version of §924, where
jurors might have to determine which among several weapons a
defendant used, carried, or possessed in furtherance of a
crime.
The Government’s response, that permitting a
judge to make this finding would “streamlin[e] guilt-stage
proceedings, without interfering with the accuracy of
fact-finding,” Brief for United States 33, is unconvincing. It does
not address the particular unfairness concern expressed in
Castillo, which was not alleviated by the restructuring of
§924. And the Government does not suggest that it would be
subjected to any unfairness if the machinegun provision continues
to be treated as an element.
The fourth
Castillo factor, the
severity of the sentence accompanying a finding that a defendant
carried a machinegun under §924, was also unaffected by the
statute’s restructuring. A finding that a defendant carried a
machinegun under §924, in contrast to some less dangerous firearm,
vaults a defendant’s mandatory minimum sentence from 5 to 30 years,
Castillo, supra, at 131, or from 7 to 30 years if, as in
this case, the firearm was brandished, §924(c)(1)(A)(ii). This is
not akin to the “incremental changes in the minimum” that one would
“expect to see in provisions meant to identify matters for the
sentencing judge’s consideration,”
Harris, 536 U. S., at
554 (from 5 years to 7 years); it is a drastic, sixfold increase
that strongly suggests a separate substantive crime.
There is one substantive difference between
the old and new versions of §924 that might bear on this fourth
factor. The previous version of §924 provided mandatory sentences:
5 years for using or carrying a firearm and 30 years if the firearm
is a machinegun, for example. See §924(c)(1) (1988 ed., Supp. V).
The current statute provides only mandatory minimums: not less than
5 years for using or possessing a firearm; not less than 7 for
brandishing it; and not less than 30 if the firearm is a
machinegun. §§924(c)(1)(A)(i), (A)(ii), (B)(ii). The Government
argues that this difference is critical because a 30-year sentence
is conceivable under the statute even without a finding that the
particular weapon is a machinegun. Brief for United States 25.
This is a distinction in theory, perhaps, but
not in practice. Neither the Government nor any party or
amicus has identified a single defendant whose conviction
under §924 for possessing or brandishing a nonspecific firearm led
to a sentence approaching the 30-year sentence that is required
when the firearm is a machinegun. Respondents advise, without
refutation, that most courts impose the mandatory minimum of 7
years’ imprisonment for brandishing a nonspecific weapon and the
longest sentence that has come to the litigants’ or the Court’s
attention is 14 years. Brief for Respondent O’Brien 46, 48 (citing
United States v.
Batts, 317 Fed. Appx. 329 (CA4
2009)
(per curiam)); see also
Harris,
supra, at 578 (Thomas, J., dissenting). Indeed, in the
instant case, Burgess received the statutory minimum 7-year
sentence, and O’Brien received only 18 months more than that. Once
the machinegun enhancement was off the table, the Government itself
did not seek anything approaching 30-year terms, instead requesting
12-year terms for each respondent.
The immense danger posed by machineguns, the
moral depravity in choosing the weapon, and the substantial
increase in the minimum sentence provided by the statute support
the conclusion that this prohibition is an element of the crime,
not a sentencing factor. It is not likely that Congress intended to
remove the indictment and jury trial protections when it provided
for such an extreme sentencing increase. See
Jones, 526 U.
S., at 233 (“It is at best questionable whether the specification
of facts sufficient to increase a penalty range by two-thirds, let
alone from 15 years to life, was meant to carry none of the process
safeguards that elements of an offense bring with them for a
defendant’s benefit”). Perhaps Congress was not concerned with
parsing the distinction between elements and sentencing factors, a
matter more often discussed by the courts when discussing the
proper allocation of functions between judge and jury. Instead, it
likely was more focused on deterring the crime by creating the
mandatory minimum sentences. But the severity of the increase in
this case counsels in favor of finding that the prohibition is an
element, at least absent some clear congressional indication to the
contrary.
The fifth factor considered in
Castillo was legislative history, and the Court there
found it to be of little help. 530 U. S., at 130 (“Insofar as this
history may be relevant, however, it does not significantly help
the Government”). The 1998 amendment has its own legislative
record, discussed below, but the parties accurately observe that it
is silent as to congressional consideration of the distinction
between elements and sentencing factors. Brief for United States
29; Brief for Respondent O’Brien 2829. This silence is not neutral,
however, because as explained below, it tends to counsel against
finding that Congress made a substantive change to this statutory
provision.
Four of the five factors the Court relied upon
in
Castillo point in the same direction they did 10 years
ago. How the 1998 amendment affects the remaining factor—the
provision’s language and structure—requires closer examination.
B
In
Castillo, the Court
interpreted §924(c) in its original version, though Congress had at
that point already amended the provision. Here, the applicable
principle is that Congress does not enact substantive changes
sub silentio. See
Director of Revenue of Mo. v.
CoBank ACB,
531 U. S. 316, 323
(2001). In light of
Castillo’s determination that the
machinegun provision in the previous version of §924 is an element,
a change should not be inferred “[a]bsent a clear indication from
Congress of a change in policy.”
Grogan v.
Garner,
498
U. S. 279, 290 (1991); see also
Rivers v.
Roadway
Express, Inc.,
511 U. S. 298, 313, n.
12 (1994) (“[W]hen this Court construes a statute, it is explaining
its understanding of what the statute has meant continuously since
the date when it became law”).
The Government argues that the
1998 amendment restructuring §924(c) demonstrates the congressional
judgment to reclassify the machinegun provision as a sentencing
factor, rather than as an offense element. But the better
understanding, as the Government acknowledged in its submission in
Castillo, is that “there is nothing to suggest that the
1998 amendments were intended to change, rather than simply
reorganize and clarify, [§924]’s treatment of firearm type.” Brief
for United States, O. T. 1999, No. 99–658, p. 41. A closer review
of the 1998 amendment confirms this.
There are three principal differences between
the previous and current versions of §924(c): two substantive
changes and a third regarding the stylistic structure of the
statute. The first difference, as discussed above,
supra,
at 10, is that the amendment changed what were once mandatory
sentences into mandatory minimum sentences. A person convicted of
the primary offense of using or carrying a firearm during a crime
of violence was once to “be sentenced to imprisonment for five
years,” but under the current version he or she is to “be sentenced
to a term of imprisonment of not less than 5 years.”
The second difference is that the amended
version includes the word “possesses” in addition to “uses or
carries” in its principal paragraph, and then adds the substantive
provisions in §§924(c)(1)(A)(ii) and (iii), which provide mandatory
minimums for brandishing (7 years) and discharging (10 years) the
firearm. These provisions are new substantive additions to the text
of the previous version, which provided a bare 5-year mandatory
minimum for any offender who “use[d] or carrie[d] a firearm,”
without concern for how the firearm was used.
The changes were a direct response to this
Court’s decision in
Bailey v.
United States,
516 U. S. 137
(1995), which held that the word “use” in the
pre&nbhyph;amendment version of §924 “must connote more than
mere possession of a firearm by a person who commits a drug
offense.”
Id., at 143. The Court in
Bailey went
on to observe that, “[h]ad Congress intended possession alone to
trigger liability under §924(c)(1), it easily could have so
provided” by using the word “possess,” as it had so frequently done
in other statutory provisions.
Ibid. Three years later,
Congress made the change and added the word “possesses” to the
principal paragraph. Congress additionally provided mandatory
sentences above the 5-year minimum depending on whether and how the
firearm was used. Sections 924(c)(1)(A)(ii) and (iii) provide
sentencing enhancements for brandishing or discharging the firearm,
and the Court has held that these enhancements are sentencing
factors to be found by a judge. See
Harris, 536 U. S., at
552556; see also
Dean v.
United States, 556 U. S.
___, ___ (2009) (slip op., at 5) (referring to the brandishing and
discharge provisions as “sentencing factors”). The 1998 amendment
was colloquially known as the “Bailey Fix Act.” 144 Cong. Rec.
26608 (1998) (remarks of Sen. DeWine); see also
Dean,
supra, at ___ (Stevens, J., dissenting) (slip op., at 3).
Aside from shifting the mandatory sentences to
mandatory minimums, and this so-called
Bailey fix,
Congress left the substance of the statute unchanged. Neither of
these substantive changes suggests that Congress meant to transform
the machinegun provision from an element into a sentencing
factor.
The Government stresses a third, structural,
difference in the statute, pointing out that the machinegun
provision now resides in a separate subsection, §924(c)(1)(B),
whereas it once resided in the principal paragraph that
unmistakably lists offense elements. This structural or stylistic
change, though, does not provide a “clear indication” that Congress
meant to alter its treatment of machineguns as an offense element.
See
Grogan, 498 U. S., at 290. A more logical explanation
for the restructuring is that it broke up a lengthy principal
paragraph, which exceeded 250 words even before adding more to it
for the
Bailey fix, into a more readable statute. This is
in step with current legislative drafting guidelines, which advise
drafters to break lengthy statutory provisions into separate
subsections that can be read more easily. See House Legislative
Counsel’s Manual on Drafting Style, HLC No. 104.1, §312,
pp. 2325 (1995); Senate Office of the Legislative Counsel,
Legislative Drafting Manual §112, pp. 1011 (1997).
While the Court has indicated that placing
factors in separate subsections is one way Congress might signal
that it is treating them as sentencing factors as opposed to
elements,
Castillo, 530 U. S., at 124125,
Harris,
536 U. S., at 552553, it has rejected the view that this structural
consideration predominates even when other factors point in the
other direction,
id., at 553 (“[E]ven if a statute ‘has a
look to it suggesting that the numbered subsections are only
sentencing provisions,’ ” the Court will not ignore
“compelling evidence to the contrary” (quoting
Jones, 526
U. S., at 232)). For instance, in
Jones the Court found
that the federal carjacking statute set forth elements of multiple
offenses despite a structure similar to the statute at issue here.
Id., at 232239. And in
Harris, the Court was
careful to point out that, unlike the case at bar, the other
Castillo factors “reinforce[d] the single-offense
interpretation implied by the statute’s structure.” 536 U. S., at
553.
In examining the amended version of §924(c)’s
structure, there is an additional consideration that supports
interpreting the machinegun provision to be an offense element. As
explained above, the brandishing and discharge provisions codified
in §924(A)(ii) and (iii) do state sentencing factors. See
Harris, supra, at 552556;
Dean, supra, at ___
(slip op., at 5). Had Congress intended to treat firearm type as a
sentencing factor, it likely would have listed firearm types as
clauses (iv) and (v) of subparagraph (A), instead of as clauses (i)
and (ii) of subparagraph (B). By listing firearm type in
stand-alone subparagraph (B), Congress set it apart from the
sentencing factors in (A)(ii) and (iii); this is consistent with
preserving firearm type as an element of a separate offense.
To be sure, there are some arguments in favor
of treating the machinegun provision as a sentencing factor. The
current structure of §924(c) is more favorable to that
interpretation than was true in
Castillo, particularly
because the machinegun provision is now positioned between the
sentencing factors provided in (A)(ii) and (iii), see
Harris,
supra, at 552556, and the recidivist
provisions in (C)(i) and (ii), which are typically sentencing
factors as well. See
Almendarez-Torres, 523 U. S., at 230.
These points are overcome, however, by the substantial weight of
the other
Castillo factors and the principle that Congress
would not enact so significant a change without a clear indication
of its purpose to do so. The evident congressional purpose was to
amend the statute to counteract
Bailey and to make the
statute more readable but not otherwise to alter the substance of
the statute. The analysis and holding of
Castillo control
this case. The machinegun provision in §924(c)(1)(B)(ii) is an
element of an offense.
* * *
The judgment of the Court of
Appeals is affirmed.
It is so ordered.
Comments
Be the first to comment
Leave a Comment