Justices Hear|Sentencing Case

     WASHINGTON (CN) – Two men who face 20 additional years in prison for using a machinegun while trying to rob an armored car drew sympathetic comments from Supreme Court justices on Tuesday. The question before the court turned on how much proof is needed to show that a machinegun was used for the additional sentence to kick in.




     Martin O’Brien and Arthur Burgess tried to rob an armored car in 2005. They held the guards at gunpoint, but fled the scene without any money after one guard got away. The men were sentened to roughly 20 years more than what they might have received if they had not been found to use a machinegun.
     Police tracked down and arrested the men a few days later. They found three guns after searching the men’s apartments, including an automatic Cobray pistol. The jury found them guilty in 2007 of carrying the machinegun during the crime, though the government did not assert that the pistol was a machine gun.
     The court in 2000 decided a similar case, Castillo v. United States, ruling unanimously that using a machine gun during a violent crime constituted a separate offense that must be charged and proved to a jury beyond a reasonable doubt.
     If the machine gun is simply a sentencing factor, the proof beyond a reasonable doubt is not necessary. In this case, the judge uses his discretion in deciding the sentence, apart from minimum and maximum requirements.
     Since the ruling, however, Congress changed the law.
     Assistant Attorney General Benjamin Horwich argued for the government. He said that using a gun during a violent crime is just a sentencing factor, meaning its use must not be proven beyond a reasonable doubt before the 30-year minimum sentence for using a machine gun during a violent crime kicks in.
     Horwich quoted the law, “if the firearm possessed by a person convicted of a violation [is a machinegun]” to make his point, saying it presupposes conviction for the crime, meaning the decision is left for sentencing.
     When the Castillo ruling was made, elements of the crime – like whether the robber brandished the weapon – were placed in the same category as the weapon’s classification, but now under separate groups.
     “The difference in the new statute is that Congress has moved it away, textually, conceptually, structurally, away from the elements,” Horwich said, in suggesting that Congress changed the law in response to the Supreme Court’s misunderstanding of it.
     Justice Antonin Scalia voiced his skepticism of the 30-year sentence “Do you think it would be upheld as a reasonable sentence?” he asked.
     And he appeared to reject Horwich’s argument that the 30-year sentence was a minimum and that a life sentence is the maximum, saying the statute doesn’t say anything about a maximum sentence. “And if it mentions nothing about life, then these are not mandatory minimums,” Scalia said. “To the contrary, they are new maximums.”
     Justice Sonia Sotomayor also appeared skeptical of the maximum sentence. “Is there a 6th Amendment problem with reading a statute this way, with reading a statute to provide for an unlimited maximum when Congress hasn’t specified it?”
     Justice Stephen Breyer suggested that he was not convinced that Congress’s changes to the law erased the need for proof beyond a reasonable doubt, saying he only noticed minor changes. “I didn’t find anything in the history that suggested any other intent,” he said. “So why do you think that that change makes the difference?”
     Justice Ruth Bader Ginsburg appeared to agree. “It’s not all that different,” she said. Chief Justice John Roberts also joined in, characterizing the tweaks as “pretty subtle ways for Congress to change the view in Castillo.
     Jeffrey Fisher of the Fisher Law Group represented the two robbers. He argued that the use of a machinegun constitutes a separate crime, and therefore must be proven beyond a reasonable doubt. As this was found in the Castillo case, Fisher maintained that Congress did not change the law in response to the Court’s ruling, and that Congress would have been more vocal in intentionally making such a dramatic change to the law.
     He pointed to Castillo, saying the Court ruled unanimously that Congress intended the use of a machinegun to be proven beyond reasonable doubt.
     But Roberts jumped in to correct Fisher. “Well, the Court’s -the Court’s opinion in Castillo quite carefully noted that it wasn’t addressing this statute.”
     Justices rarely interjected during Fisher’s arguments, and some showed sympathy and support when they did.
     Justice Anthony Kennedy called the 30-year minimum sentence “awful,” and asked “Don’t you have to find that the machinegun is operable?”
     The 1st Circuit held “with some misgivings” that the type of firearm is a sentencing issue to be resolved by the judge because it merely raises the mandatory minimum sentence.

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