On May 24, the Supreme Court decided United States v. O'Brien, No. 08-1569, holding that whether a weapon used in a crime is a "machine gun" within the meaning of a federal statute prohibiting the use of a machine gun in furtherance of a crime of violence is an element of the offense that a jury must find beyond a reasonable doubt, not a sentencing factor that a judge may find by a preponderance of the evidence.
Respondents O'Brien and Burgess were indicted for using a firearm in furtherance of an attempted robbery, for which the mandatory minimum sentence is five years, and for using a machine gun in furtherance of the same attempted robbery, for which the mandatory minimum sentence is thirty years. The Government later moved to dismiss the machine-gun charge, which it admitted it could not prove beyond a reasonable doubt, but it argued that the judge could nevertheless decide whether the weapon in question was a machine gun in connection with sentencing on the lesser charge, applying a preponderance-of-the-evidence test, and could enhance the respondents' sentences accordingly. The district court rejected this assertion, the defendants then pleaded guilty, and they received sentences below the machine-gun minimum. The Court of Appeals for the First Circuit affirmed.
The Supreme Court affirmed, holding that a defendant's use of a machine gun within the meaning of the statute is an element of the offense that must be proven to a jury beyond a reasonable doubt, not a sentencing factor that a judge may find by a preponderance of the evidence. Generally, a fact that "increase[s] the prescribed range of penalties to which a criminal defendant is exposed" is an element that must be proved to a jury, unless Congress clearly identifies the factor as a sentencing factor. The Court had held that the use of a machine gun was an element of the offense under a previous version of the statute under which O'Brien and Burgess were charged, Castillo v. United States, 530 U.S. 120 (2000), and changes to the statute in 1998 did not demonstrate a clear indication that Congress intended to change the nature of the factor.
Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Stevens, Scalia, Ginsburg, Breyer, Alito, and Sotomayor joined. Justice Stevens also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment.