Machinegunning Reason: Sentencing Factors and Mandatory Minimums in United States V. O'Brien
Scharf, William O., Harvard Journal of Law & Public Policy
Although the competition between the institutions of the judge and jury for power within the legal system is hardly new, extending back well into the hazy mist of our legal system's common law origins, (1) the Supreme Court's decision last Term in United States v. O'Brien (2) shows that the question of where the role of the judge ends and that of the jury begins remains controversial. At the heart of the issue in O'Brien was the mandatory minimum sentence, a statutory instrument favored by Congress since the mid-1980s that sets a floor under, rather than a specific value for or a ceiling on, the sentence a judge can impose on a convicted defendant. (3) For more than a decade, the Court has made clear that the requisite standard for increases in the maximum available sentence in a given case is proof to a jury beyond a reasonable doubt. (4) In O'Brien, the Court found that the statutory provision at issue defined a criminal element and not a sentencing factor, but upheld the notion that an increase in a defendant's mandatory minimum sentence could be ordered on the basis of sentencing factors found by a judge by evidentiary preponderance, and did not necessarily require proof to a jury beyond a reasonable doubt. In reaching this conclusion, the Court relied heavily on a test from Castillo v. United States (5) that should never have been promulgated in the first instance, thereby building law upon bad law. Furthermore, the Court's decision in O'Brien may signal a growing acceptance by the Court of the seeming incongruity of the differential constitutional treatment of maximum sentences and mandatory minimum sentences, an issue that was highly controversial less than a decade ago.
Martin O'Brien's career as a criminal ended with a number of bangs, and perhaps a whimper as well, when he received his 102-month sentence from Judge Mark Wolf of the District of Massachusetts. (6) On June 16, 2005, O'Brien and a number of accomplices waited in a minivan for the arrival of an armored car making a scheduled cash delivery to a bank in Boston's North End. On its appearance, they sprung into action. Armed to the teeth with a Sig Sauer semi-automatic handgun, an AK-47 semi-automatic rifle, and, crucially, a fully automatic Cobray MAC-11 machine pistol, (7) O'Brien and his companions ordered the one visible guard to lie on the ground. As they were disarming him and firing warning shots into the air, a second guard ran away into a nearby restaurant. This act of defiance was enough to spook O'Brien and his band of latter-day-Dillingers, and they promptly fled the scene. The police, acting on apparently excellent intelligence, were able to find the weapons after executing a search warrant on the very night of the attempted robbery. O'Brien was arrested on June 21. (8)
A grand jury returned a multicount indictment in July 2005, which included a count charging the defendants with using, carrying, or possessing firearms in furtherance of a crime of violence, in violation of 18 U.S.C. [section] 924(c) (2006). (9) On February 21, 2007, a second superseding indictment was handed down, adding an additional count charging the defendants with having used, carried, and possessed a machinegun in furtherance of a crime of violence, in violation of 18 U.S.C. [section] 924(c)(1)(B)(ii), a provision carrying a mandatory minimum sentence of thirty years imprisonment. (10)
This last charge was eventually dismissed after Judge Wolf ruled that [section] 924(c)(1)(B)(ii), the machinegun provision, was an element of a crime to be proved beyond a reasonable doubt to the jury, and not, as the Government asserted, a mere sentencing factor to be proved by a preponderance of the evidence to the sentencing judge. (11) O'Brien and his codefendants pled guilty to the remaining robbery charges and the [section] 924(c) firearm charge that did not explicitly include the machinegun allegations. (12) O'Brien and one other codefendant were sentenced to less than thirty years imprisonment over the Government's renewed assertion that [section] 924(c)'s machinegun provision laid out a mandatory sentencing factor that was still implicated by the case, and not an element of a crime. …