Martin O’Brien and Arthur Burgess attempted an armed robbery of an armored vehicle. The were arrested and charged in a multi-count indictment with possession of a gun during a violent crime in Count III which carries a minimum sentence of five years and in Count IV with possession of a machine gun during a crime of violence which carries a minimum sentence of 30 years.

Both are violations of 18 USC Section 924(c). The government was not sure it could prove count IV beyond a reasonable doubt so they dismissed the count and tried to come in through the back door. At sentencing they tried to use it as a sentencing enhancement. This way they did not have to present the issue to a jury and only had to prove it by a preponderance of the evidence. But the United States Supreme Court said no. It said that possession of a machine gun is an element of the offense and had to be tried to a jury and proved by a beyond a reasonable doubt standard.

The Court used a five step test to determine whether it is a element of the offense or a sentencing enhancement: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” The first factor by itself is insufficient and the Supreme Court found nothing overwhelming in the statute which reads:

“(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)

It is true that the section dealing with the machine gun is in a different section from the other elements when when considered against the other factor this is insufficient.

As to the second factor characteristics related to the offense are generally elements while characteristics related to the defendant are often sentencing factor. The nature of the gun refers to an offense characteristic.

As to the third factor, treating the nature of the weapon as a sentencing factor may create a problem since the jury may have to decide which weapon the defendant used and the judge not knowing what the jury decided may have to decide whether the weapon was a machine gun.

As to the severity of the offense a thirty year minimum as contrasted to a five year minimum points to it being an element, not a sentencing factor.

As to the last factor legislative history on the issue is practically nil and doesn’t one way or the other. Considering the factors as a whole the Supreme Court found that the nature of the weapon is an element of the offense.