in Gun Mandatory Minimum Case
February 23, 2010
FAMM President, Julie Stewart and Vice President, Mary Price, attended the oral argument in United States v. O’Brien and Burgess (08-1569) on February 23. We were joined by FAMM Amicus Advisory Board member Margy Love and Aaron Katz of Ropes & Gray LLP who co-authored the amicus brief in the case for FAMM and NACDL.
How did we feel following the argument? In a word: optimistic.
The justices were – yet again – grappling with the dreadful 18 U.S.C. §924(c), the poorly drafted and complicated gun statute. It sets out a mandatory minimum of five years for the crime of possessing or using a gun in connection with a crime of violence or drug trafficking crime. It then also provides for additional mandatory minimums for the type of gun and how it is used, including a 30-year mandatory minimum if it is a machine gun. Click here for background information.
The big issue in the case is what has to happen to trigger the enormous 30-year mandatory minimum sentence. Is the machine gun an “element” so that the government has to charge the defendant with using a machine gun and then prove it to a jury beyond a reasonable doubt? Or, is the machine gun just a sentencing factor so that the government does not have to charge it or prove it to a jury. If it is a sentencing factor, and the judge finds the machine gun was more likely than not present, the judge must impose a mandatory minimum of 30 years.
The debate in the case mostly turned on statutory construction: how the wording of the machine gun provision does or does not support considering it an element or sentencing factor. It also delved into legislative history. Prior to 1998, the gun statute treated machine gun as an offense element. The law was amended in 1998 for other reasons and the machine gun provision was altered slightly.
The justices questioned the government closely whether there was any evidence in legislative history or in the altered structure of the 1998 statute that Congress intended to change the nature of the machine gun provision from element to sentencing factor.
The Assistant Solicitor General said yes, but to us, many of the Justices seemed dubious.
For example, the newest justice, Sonia Sotomayor, seemed unconvinced that Congress had changed the machine gun provision from an element of an offense to a sentencing factor when it amended the statute. Chief Justice John Roberts, Justice Stephen Breyer and Justice Ruth Bader Ginsburg all indicated they did not think Congress changed it either, given a silent, or as Justice Roberts put it “subtle,” legislative record on the matter.
This openly expressed skepticism seemed to us a good sign. If we are right and the Supreme Court rules that machine gun is an element, not a sentencing factor, Burgess and O’Brien cannot be sentenced to the 30-year mandatory minimum sentence. If we are right, and the government in the future wants to send a defendant away for 30 years, it will have to charge him with use of a machine gun and convince a jury beyond a reasonable doubt.
Jeffrey Fisher, who leads the Stanford University Law School’s Supreme Court clinic argued for O’Brien and Burgess and did a fabulous job urging the Court to correctly interpret a troublesome statute.
You can read the oral argument here. A decision in the case is expected by the end of June.
And, stay tuned. This challenging statute will be in the Supreme Court spotlight once again in a pair of cases: Abbot v. U.S. and Gould v. U.S. FAMM is of course planning to weigh in with an amicus brief. Click here to read briefs and for more details.