An Element Related to Jury Proof or a Sentencing Factor

It seems there is a difference between an element that is to be proven to a jury and a sentencing factor.

While it may seem like a moot point – whether or not there is a difference between an element to be proven to a jury beyond a reasonable doubt and a sentencing factor – the difference is quite crucial in some cases in terms of federal criminal defense. Witness a recent trial (United States v. O’Brien et al) where the courts held that in a prosecution under 18 U.S.C. §924(c) the fact that a firearm was a machine gun was an element that needed to be proved to a jury beyond a reasonable doubt and was not a sentencing factor for a judge at sentencing time.

Let’s back up a few steps and take a quick look at the precursor to this particular case, Bailey v. United States (1995). That particular case focused on an often used section of the federal criminal code utilized by federal prosecutors. At that time, 18 U.S.C. §924(c) handed out a mandatory, consecutive five-year jail sentence to those who used a firearm during a drug trafficking crime. The lower court defined use to mean just possession. The Supreme Court said “use” meant active use of a firearm. In the final analysis, Congress amended the statute to expressly include possession of a firearm as requiring the five year jail sentence.

Flash forward to today and what is now in the applicable statute: 18 U.S.C. §924(c) bans using or carrying a firearm relating to a violent crime or drug trafficking crime or the possession of a firearm to further those crimes. 18 U.S.C. §924(c)(1)(A) metes out a mandatory minimum of 5 years in jail. However, if the firearm is a machine gun, the statute spells out a mandatory minimum of 30 years sentence, §924(c)(1)(B)(ii). 

When the courts took a closer look at the facts in the United States v. O’Brien et al matter, it reviewed their previous decision in the case of Castillo v. United States (2000) where it had determined that the machine gun requirement under the pre-amendment version of the statute “was” an element of the offense itself. Based on the factors outlined in Castillo, the court discarded the government’s assertion that the 1998 amendments to section 924(c) altered the machine gun provision and turned it into a sentencing factor.

The bottom line: you need a criminal defense attorney who is up-to-date on current case law to protect your rights.

Miller Leonard is a Denver federal criminal defense lawyer and Denver state criminal defense attorney. To learn more, visit or call 303.623.2721.