The federal gun statute, 18 U.S.C. sec. 924(c), has received a great deal of attention at the highest court in the last two court sessions. This session is no different and because the challenged statute includes many mandatory minimums, including some of the harshest in the federal criminal code, of course FAMM is involved.
In United States v. O’Brien and Burgess (No. 08-1569), the Court is expected to resolve whether the provision in sec. 924(c) that imposes a 30-year mandatory minimum for machinegun use describes a separate criminal offense or merely a sentencing factor. If a separate criminal offense, the fact of the machinegun must be pled in the indictment and either proven beyond a reasonable doubt or admitted by the defendant before the 30-year mandatory minimum may be imposed. If the provision is only a sentencing factor, the fact of the machine gun need not be pled and proven; instead it need only be found by the judge at sentencing using the preponderance of the evidence, a very relaxed standard. To read the gun statute, click here.
The arguments turn on, for example, whether changes made to the gun statute in 1998 changed the way the machine gun provision was treated. Prior to those changes, the machine gun provision had been treated as creating an offense element and O’Brien and Burgess argue that the 1998 changes to the statute concerning other aspects, did not change it to a sentencing provision.
Moreover, given that even the government concedes that Burgess and O’Brien did not know the gun at issue was a machine gun, the critical mens rea, or knowledge of the crime, was missing in this case and is necessary before imposing a mandatory 30-year sentence, whether triggered by an offense element or a sentencing factor.
FAMM supports their argument and, together with the National Association of Criminal Defense Lawyers, and drawing from principles laid out in Apprendi and the Booker line of cases, offered the Court an amicus brief that further explains why the machine gun provision cannot constitutionally be considered other than an offense element.
The Supreme Court will hear oral argument on February 23 and a decision in the case is expected by the end of June.
Follow case developments and read the parties’ briefs, amicus briefs, including the FAMM/NACDL amicus brief, click here.
FAMM is grateful to attorneys Sam Buffone and Aaron Katz with the Washington, D.C. and Boston, MA offices respectively of the law firm of Ropes & Gray LLP for representing us and drafting our brief. FAMM also thanks FAMM Amicus Advisory Board Chair Peter Goldberger and committee member Margy Love for their careful stewardship of the brief.