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No. 08-1569

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States


No. 08-1569







As the government demonstrated in its opening brief (at 12-34), the primary guides to statutory interpretation- language and structure-compel the conclusion that fire arm type is a sentencing factor in 18 U.S.C. 924(c)(1), and secondary considerations like tradition and policy also favor that conclusion. Respondents nevertheless argue that the Court should adhere to its construction of the prior version of Section 924(c)(1) and that it should favor considerations like sentence length and silent legislative history over the text of the statute. Their interpretive methodology is mis guided and their conclusions mistaken. Nor is there merit to respondents' suggestion that a sentencing-factor ap proach raises constitutional concerns. This Court in Harris v. United States, 536 U.S. 545 (2002), reaffirmed that Con gress may constitutionally rely on sentencing factors to in crease a mandatory minimum sentence within an authorized range. Firearm type plays just that permissible role in Section 924(c)(1).

A. Section 924(c)(1) Provides That Firearm Type Is A Sen tencing Factor Rather Than An Element

1. Castillo v. United States does not control the mean ing of the revised version of Section 924(c)(1)

O'Brien contends (Br. 18-36) that Castillo v. United States, 530 U.S. 120 (2000), continues to control whether firearm type is a sentencing factor in the amended Sec tion 924(c)(1). But Castillo itself acknowledged that the "statutory restructuring" in the current version of Sec tion 924(c)(1) "suggest[s] a contrary interpretation" to the one it reached about the prior version. Id. at 125. O'Brien's argument (Br. 18-24) that Congress's substan tial 1998 revision of Section 924(c)(1) does not disturb Castillo's holding ignores the profound changes Con gress made to the statute. See Gov't Br. 35-39. For ex ample, O'Brien's claim that the 1998 revision "contain[s] no 'clear indication' that Congress intended" to change the statute's meaning, Br. 20, is refuted by his acknowl edgment on the very next page that the firearm type provisions were relocated to "a subsection that is sepa rated from other parts of the statute," id. at 21: that feature creates a "presumption drawn from * * * structure" that a statute states sentencing factors, Har ris, 536 U.S. at 554.

To escape the strong implication of the many revi sions Congress made to Section 924(c)(1), O'Brien posits that Congress can alter the meaning of a statute once construed by this Court only by enacting a super-clear statement. See Br. 23 (suggesting that copying the lan guage of the sentencing factor in McMillan v. Pennsyl vania, 477 U.S. 79 (1986), "might" be sufficient to over come Castillo). But the cases O'Brien cites (Br. 18-19) stand for the far more modest propositions that techni cal amendments and codifications generally do not work substantive changes and that Congress does not radi cally alter the law through trivial changes in word ing-that "Congress * * * does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001).1 Here, the substance of the change is not an "elephant": although the statutory changes are procedurally significant, Con gress adhered to the substantive principle that certain especially dangerous weapons warrant enhanced punish ment. And the means for making that change is not a "mousehole": the statute was entirely restructured, with new language added that unmistakably designates firearm type as a relevant factor once a defendant has been "convicted of a violation." 18 U.S.C. 924(c)(1)(B). To see this as a sentencing factor, a court need only "interpret [the statute's] language according to its natu ral meaning." Morales v. TWA, 504 U.S. 374, 385 n.2 (1992).2

2. Section 924(c)(1)'s language and structure show that firearm type is a sentencing factor

Notwithstanding respondents' attempts to downplay language and structure, those have been the primary and dispositive guides for this Court in interpreting Sec tion 924(c)(1). See Dean v. United States, 129 S. Ct. 1849, 1853-1854 (2009); Harris, 536 U.S. at 552-554; Castillo, 530 U.S. at 124-125.3 Those guides provide clear evidence of Congress's intent to make firearm type a sentencing factor.

Language. The first mention of firearm type in the statute is introduced by the language, "If the firearm possessed by a person convicted of a violation of this subsection-." 18 U.S.C. 924(c)(1)(B) (emphasis added). Because firearm type is a relevant consideration in the statute only after a defendant has been "convicted of a violation" (i.e., found guilty by a jury of the elements of the offense), firearm type must be a sentencing factor. See Gov't Br. 14.

Respondents' counterarguments miss the point en tirely by discussing instead what "violation of this sub section" means. See Burgess Br. 11-13; O'Brien Br. 30. All parties agree that the principal paragraph of Section 924(c)(1)(A) states elements. Wherever else in "this sub section" one might find additional elements "of a viola tion" (there are no obvious candidates), the use of the past participle "convicted" makes quite clear they are not to be found in Subparagraph (B). And that is a com pelling reason why, contrary to O'Brien's argument, Section 924(c)(1)(B) cannot be "read * * * as simply substituting the word 'machinegun' for the initial word 'firearm.'" Br. 29 (quoting Castillo, 530 U.S. at 124). As explained (Gov't Br. 14, 36), a defendant does not come within Subparagraph (B) until he has already been "con victed." And he is "convicted" when found guilty of the "complete crime" specified in the subprincipal para graph of Section 924(c)(1)-"the basic federal offense of using or carrying a gun during and in relation to a vio lent crime or a drug offense." Harris, 536 U.S. at 552 (internal quotation marks and citation omitted).

The introductory language of Section 924(c)(1)(A) independently shows that firearm type is a sentencing factor, because it describes provisions like Section 924(c)(1)(B)(ii) as supplying "a greater minimum sen tence," and not as defining a separate crime altogether. See Gov't Br. 15-16. Respondents do not attempt to square Section 924(c)(1)(A)'s reference to "greater mini mum sentence[s]" with their fundamental view that the firearm-type provisions are not "greater minimum sentence[s]" but rather create "greater offense[s]," O'Brien Br. 1.4

Structure. As emphasized (Gov't Br. 16-19), Harris's conclusions about the structure of Section 924(c)(1) ap ply here with equal force; if anything, the structural reasons to presume that Clauses (B)(i) and (ii) state sen tencing factors are even stronger than the reasons Har ris gave for interpreting Clause (A)(ii) to state a sen tencing factor.

Respondents, like the court of appeals below, dismiss Congress's structural overhaul of Section 924(c)(1) as being "simply * * * for ease of digestion." O'Brien Br. 34; see id. at 31-35; Burgess Br. 16-17; Pet. App. 9a. But ignoring statutory structure is contrary to this Court's precedent in general, and Castillo's particular comment that the "statutory restructuring" here "sug gest[s] a [sentencing factor] interpretation," 530 U.S. at 125. Respondents' focus on legislative drafting tech nique betrays a misunderstanding of why structure mat ters. Structure is not important "for ease of reading," Pet. App. 9a; it is important because it reinforces Con gress's intended meaning. Structural choices reveal how the parts of the statute interact and function in practice.

Here, the "lengthy principal paragraph listing the elements of a complete crime" is in a separate sentence and separate subparagraph from the firearm-type provi sions, which "explain how defendants are to 'be sen tenced.'" Harris, 536 U.S. at 552 (quoting 18 U.S.C. 924(c)(1)(A)). That structural separation informs the reader that the two perform the distinct functions of identifying elements for the jury and identifying sen tencing factors for the judge. This in turn results in an overall orderly progression from elements in the princi pal paragraph of Subparagraph (A), then to sentencing factors in the balance of Subparagraph (A) through Sub paragraph (C), and finally to technical considerations about the sentence in Subparagraph (D). That structure is a practical aid to applying the statute because it al lows the reader (e.g., a district judge) to use Section 924(c)(1) as step-by-step instructions for charging a jury, then determining the appropriate statutory sen tencing range if the defendant is convicted, and finally memorializing the actual sentence.5

Respondents offer two other replies. First, they as sert that the government's structural argument is one "that this Court rejected in Jones: namely, that the statute contains a principal paragraph followed by the word 'shall,' and finally separate subsections" that state sentencing factors. Burgess Br. 15 (alteration and some internal quotation marks omitted); see O'Brien Br. 34- 35. But it would be more germane to say that the gov ernment's structural argument here is the one the Court accepted in Harris regarding this very statute. Second, respondents assert (with no citation) that the case for treating firearm type as a sentencing factor would be strengthened by moving it closer to the elements of the offense (indeed, by relocating it to the same sentence and subparagraph as the offense elements). See Bur gess Br. 14-15; O'Brien Br. 35. But the opposite is true: it is Subparagraph (B)'s structural and linguistic separa tion from the elements in the principal paragraph of Subparagraph (A) that should give the Court confidence that firearm type is not itself an element. See Gov't Br. 17-19.

In the end, rather than glean meaning from Con gress's structural choices as Harris commands, respon dents dismiss Section 924(c)(1) as a "jumble of widely varying provisions" (Burgess Br. 17) that merely re flects the happenstance of how things "ended up" (O'Brien Br. 35). But the current version of the statute is the product of a wholesale structural revision by Con gress, in which firearm type was shifted from raising a fixed sentence to increasing the minimum sentence within a much larger authorized range. That significant alteration makes it all the more likely that Congress purposefully selected a structure that would implement a sentencing factor design, as Section 924(c)(1) does.

3. Secondary factors such as tradition and sentence length support treating firearm type in Section 924(c)(1)(B) as a sentencing factor

Respondents overemphasize secondary interpretive guides like the traditional treatment of firearm type and the length of the sentence at issue. As previously ex plained (Gov't Br. 21-22), reliance on such considerations is appropriate only when the statute's language and structure "do[] not justify any confident inference," Jones v. United States, 526 U.S. 227, 234 (1999). Even so, these secondary considerations support treating fire arm type as a sentencing factor here.

Tradition. As we explained in our opening brief (at 22-24), the enhanced minimum sentences for particu larly dangerous firearms lie at the intersection of two well-established traditions, neither of which was impli cated by the version of the statute construed in Castillo: the use of sentencing factors to constrain the judge's discretion through mandatory minimum sentencing laws, and the Sentencing Guidelines' treatment of fire arm type as a sentencing factor for firearms offenses. Respondents do not dispute the former; indeed, they point to no federal statute (and we are aware of none, see id. at 37) that requires a jury finding to raise the minimum permissible sentence within an authorized range.6

Nor do respondents offer a sound reason to ignore the Sentencing Guidelines' tradition of treating firearm type as a sentencing consideration. Tradition matters when statutory language and structure are "unclear" because "statutory drafting occurs against a backdrop * * * of traditional treatment of certain categories of important facts," and it is therefore a "fair assumption that Congress * * * intend[ed]" to follow traditional practices that prevailed at the time of drafting. Jones, 526 U.S. at 234. O'Brien suggests (Br. 26 n.7) that the Guidelines would have been just as relevant in constru ing the 1986 version of Section 924(c)(1) in Castillo. But Congress could not have legislated "against a backdrop" of the Guidelines in 1986 because the Guidelines were not effective until late 1987, see Sentencing Guidelines Ch. 1, Pt. A.2 (1987). By contrast, in 1998 the Guidelines undeniably embodied the dominant federal sentencing tradition.

Burgess (see Br. 23-24) is mistaken to infer anything from the absence of any mention of the Guidelines in Jones. Although the government argued in Jones that the Guidelines' tradition of treating serious bodily injury as a sentencing consideration supported its reading of the statute at issue (see Gov't Br. at 23-25, Jones, su pra), this Court's "search for comparable examples" turned up better parallels in other statutes, and the Court did not need to address the Guidelines, Jones, 526 U.S. at 235-236.

Here, by contrast, the Guidelines provide the better parallel. Many of the statutes Burgess offers as paral lels (see Br. 22-23 & nn.11-12) are designed to crim inalize certain acts or omissions only when they involve a particular type of firearm; that tailored purpose can not easily be served without making the particular type of firearm an offense element. By contrast, Section 924(c)(1) criminalizes certain acts involving any firearm, and thereby serves Congress's objective of combating the dangerous combination of all firearms with drugs or violent crime, see Gov't Br. 32. Further distinctions among Section 924(c)(1) offenders can sensibly be drawn by the judge at sentencing.

The great majority of offenses under 18 U.S.C. 922, 18 U.S.C. 924, and 26 U.S.C. 5861 are drawn broadly to reach any "firearm" as defined in the respective stat utes; none of those broad offenses makes the involve ment of a specific type of firearm an aggravated of fense.7 But every one is subject to Sentencing Guide lines § 2K2.1, which directs the judge to consider the particular type of firearm at sentencing. Construing firearm type in Section 924(c)(1)(B) as a sentencing fac tor is consistent with that tradition.

Length. Only "after considering traditional interpre tive factors" and finding itself "genuinely uncertain as to Congress's intent" would this Court "assume a prefer ence for traditional jury determination." Castillo, 530 U.S. at 131. As shown above and in our opening brief, no "genuine[] uncertain[ty]" exists about Congress's intent here. The length of the sentence enhancement does not change matters. Congress has authorized comparably large sentence enhancements on the basis of judge- found facts for conduct that is as heinous and dangerous as using a machinegun in connection with violent crime. See Gov't Br. 26-29. Respondents say nothing in re sponse to the vast majority of the enhancements cited in our opening brief; Burgess argues that two in particular are actually not sentencing factors, but offers no judicial authority (aside from dissenting opinions) in support of his argument, see Br. 26.

Respondents seem to embrace the proposition that a ten-year minimum sentence-like that provided in Clause (B)(i) for certain types of firearms-is what "one would expect to find in provisions aimed at identifying sentencing matters for a judge to consider." Burgess Br. 26 (citing Harris, 536 U.S. at 554). Clauses (B)(i) and (B)(ii) are similarly worded and identically struc tured, however, and respondents fail to explain what will become of Clause (B)(i) if this Court accepts their invita tion to decide the status of Clause (B)(ii) based on the length of sentence it prescribes. Perhaps respondents would argue that the nearly identical provisions mean diametrically opposite things. The more sensible conclu sion, though, is that Congress intended Clause (B)(ii)- like every other provision around it-to be a sentencing factor.8

B. Treating Firearm Type As A Sentencing Factor Is Con sistent With Constitutional Limitations On Mandatory Minimum Sentences

Congress's decision in Section 924(c)(1) to impose an enhanced minimum sentence based on the sentencing judge's finding of particular firearm type is consistent with the Fifth and Sixth Amendments.

1. Mandatory minimum sentences raise no Sixth Amendment concern

"[M]andatory minimums * * * are not a concern of the Sixth Amendment." Rita v. United States, 551 U.S. 338, 373 n.2 (2007) (opinion of Scalia, J.) (citing Harris, 536 U.S. at 568-569). This Court has never wavered from that clear and firmly established rule, and respon dents offer no valid reason to reconsider it.

a. In McMillan, supra, this Court "rejected" a rule "that the Constitution requires any fact increasing the statutory minimum sentence to be accorded the safe guards assigned to elements." Harris, 536 U.S. at 555. No subsequent case has disturbed that holding:

* In Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court held that the Sixth Amendment re quires that, "[o]ther than the fact of a prior con viction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Apprendi ex pressly "d[id] not overrule McMillan," recogniz ing the force of stare decisis considerations, id. at 487 n.13.

* Harris reaffirmed McMillan and held that Ap prendi's rule does not apply to judicial factfinding that increases a defendant's minimum sentence within an authorized range. See Harris, 536 U.S. at 568 (opinion of the Court "reaffirming McMil lan"); see also id. at 565, 567-568 (plurality opin ion); id. at 569, 572 (Breyer, J., concurring in part and concurring in the judgment). The Harris plurality explained that, unlike the "prevailing historical practice" of submitting to a jury factual matters that would increase a defendant's sen tence beyond the otherwise-applicable statutory maximum, there was "no comparable historical practice of submitting facts increasing the man datory minimum to the jury, so the Apprendi rule d[oes] not extend to those facts." Id. at 563.

* Ring v. Arizona, 536 U.S. 584, 604 n.5 (2002), re iterated the Court's conclusion from Harris that "the distinction between elements and sentencing factors continues to be meaningful as to facts in creasing the minimum sentence."

* Blakely v. Washington, 542 U.S. 296, 305 (2004), applied Apprendi to invalidate an enhancement under a state sentencing guidelines scheme that produced "a sentence greater than what state law authorized on the basis of the verdict alone." Blakely expressly distinguished McMillan on the ground that it "involved a sentencing scheme that imposed a statutory minimum if a judge found a particular fact." Id. at 304.

* United States v. Booker, 543 U.S. 220, 232 (2005), and Cunningham v. California, 549 U.S. 270, 281-282 (2007), both adhered to the principle that Apprendi's rule applies only to factfinding that affects a defendant's maximum sentence.9

McMillan and Harris's rule is correct and forms a deeply rooted part of this Court's Sixth Amendment jurisprudence.

b. Burgess (see Br. 36-39) and his amici nonetheless advocate overruling McMillan and Harris. Even apart from the correctness of those decisions, stare decisis commands adherence to their rule. "Stare decisis is not an inexorable command, but the doctrine is of funda mental importance to the rule of law," and this Court "will not overrule a precedent absent a special justifica tion." Harris, 536 U.S. at 556-557 (plurality opinion) (internal quotation marks and citations omitted). No such "special justification" exists here. McMillan and Harris offend no historical practices, and they are en tirely consistent with the rule of Apprendi. And a rule permitting legislatures to increase minimum sentences within an authorized range based on judge-found facts is clear and workable.

"Stare decisis has special force when legislators or citizens have acted in reliance on a previous decision, for in this instance overruling the decision would * * * require an extensive legislative response." Hubbard v. United States, 514 U.S. 695, 714 (1995) (opinion of Stevens, J.) (internal quotation marks and citation omit ted). As this Court is well aware, McMillan and Harris have engendered considerable reliance at both the fed eral and the state level.10 Section 924(c)(1) itself exem- plifies that reliance; the 1998 revision took it outside what became Apprendi's rule and placed it inside McMillan's. After Harris, Congress has continued to enact mandatory minimum sentencing laws. See, e.g., Prevention of Terrorist Access to Destructive Weapons Act of 2004, Pub. L. No. 108-458, Tit. VI, Subtit. J, §§ 6903-6906, 118 Stat. 3770-3773 (adding or amending 18 U.S.C. 175c, 2332g, 2332h and 42 U.S.C. 2722). Re spondents offer no adequate justification to overrule McMillan and Harris.

2. Treating the firearm-type provisions of Section 924(c)(1)(B) as sentencing factors is consistent with the Due Process Clause

Respondents argue (O'Brien Br. 52-55, Burgess Br. 33-39) that Section 924(c)(1)(B)(ii) cannot be considered a sentencing factor because imposing a 30-year sentence based on judicial factfinding would violate the Due Pro cess Clause by "diluting the prosecution's burden of proof." O'Brien Br. 52. That is incorrect.

a. This Court has never held that the Due Process Clause is violated when a judge makes findings by a pre ponderance of the evidence that raise a minimum sen tence within an authorized range. To the contrary, the Court rejected such claims in McMillan and Harris. Respondents nonetheless would transform McMillan's observation that the statute there gave "no impression of having been tailored to permit the [sentencing factor] finding to be a tail which wags the dog of the substantive offense," 477 U.S. at 88, into an affirmative arithmetical command that the Due Process Clause is offended when ever a "major portion of a defendant's sentence is attrib utable to a particular sentencing factor rather than to the offense itself," O'Brien Br. 54.

Harris itself rejects that view of the Fifth Amend ment. See 536 U.S. at 565 (plurality opinion) ("[O]nce the jury finds [the elements of the offense], Apprendi says that the defendant has been convicted of the crime; the Fifth and Sixth Amendments have been observed."). And a majority of this Court has squarely rejected-in a decision rendered since McMillan and Harris-the argument that the line between sentencing factor and offense element can be governed by such an amorphous and "subjectiv[e]" standard as whether the sentencing factor appears to be a "tail" that "wags the dog" of the substantive offense. See Blakely, 542 U.S. at 307 (quot ing McMillan, 477 U.S. at 88); id. at 311 n.13. Rather, whether the Constitution requires a particular fact to be found by a jury is determined by "Apprendi's bright-line rule." Id. at 308. That rule does not apply to the en hanced minimum sentence prescribed by Section 924(c)(1)(B)(ii) because the underlying offense carries a potential life sentence and the presence of a machinegun simply increases the minimum sentence within that range. Where Apprendi does not apply, the Constitu tion commits concerns about such schemes to the "'structural democratic constraints [that] exist to dis courage legislatures from' pernicious manipulation of the rules" defining offenses and assigning burdens of proof. Oregon v. Ice, 129 S. Ct. 711, 719 (2009) (quoting Apprendi, 530 U.S. at 490 n.16).

b. Section 924(c)(1)(B)(ii) bears no resemblance to the extreme hypotheticals that this Court has offered to illustrate the concern raised by sentencing factors that overshadow the offense. See, e.g., Blakely, 542 U.S. at 306 (hypothesizing a murder prosecution in the guise of a sentencing proceeding for a traffic offense committed while fleeing the death scene). All would agree that the actions described in the principal paragraph of Section 924(c)(1)(A) are wrongful and deserving of serious pun ishment; indeed, Congress authorized punishment up to life imprisonment. The firearm type provisions of Sec tion 924(c)(1)(B) merely categorize particularly danger ous forms of the offense by looking closely at an ele ment-the firearm-that has already been proved to the jury's satisfaction. In other words, Congress "simply took one factor that has always been considered by sen tencing courts to bear on punishment . . . and dictated the precise weight to be given that factor." Harris, 536 U.S. at 568 (quoting McMillan, 477 U.S. at 89-90).

C. This Court Should Reject Or Not Decide The Other Stat utory And Constitutional Claims Respondents Raise

Respondents and their amici press certain statutory and constitutional issues that were not raised or decided by the courts below and that are not within the question presented. This Court should not address those claims, but if it does, it should reject them.

1. This Court cannot and should not decide respondents' putative as-applied Sixth Amendment challenge

Respondents, joined by their amici, contend that bas ing a sentence under Section 924(c)(1)(B)(ii) on a judge's finding of a machinegun would violate their Fifth and Sixth Amendment rights as interpreted in Apprendi, supra. See O'Brien Br. 37-52, Burgess Br. 40-43. In particular, respondents contend that the applicable stat utory maximum for Apprendi purposes is not Section 924(c)(1)'s statutory maximum of life imprisonment, but instead the maximum hypothetical sentence that could be imposed under 18 U.S.C. 3553(a) in the absence of judicial factfinding and upheld on appeal as reasonable. See generally Rita, 551 U.S. at 368-381 (opinion of Scalia, J.). In respondents' view, the 30-year minimum sentence prescribed by Section 924(c)(1)(B)(ii) exceeds that hypothetical level, and, they claim, it therefore can not be imposed based on the sentencing judge's finding that the Cobray MAC-11 was a machinegun.

The Court should refuse to reach respondents' con tention. Doing so would require the Court to adjudicate an as-applied challenge it has never recognized, to a sen tence that has not been imposed, based on a set of facts not presently determined, all without the benefit of deci sions from the courts below. That said, if the Court were to address respondents' putative as-applied chal lenge, it should fail on the merits.

a. This Court need not reach the question. It was not pressed or passed upon by the courts below and is not part of the question presented. The Court "ordi narily do[es] not decide in the first instance issues not decided below," Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 168 (2004) (citation omitted), and it would be extraordinary for the Court to take up a case- specific constitutional question the courts below never confronted. If the government prevails in this Court, respondents could raise their challenge on remand. See, e.g., id. at 168-171 (remanding for lower courts to con sider in the first instance an alternative claim not previ ously decided, beyond the question presented, and sub ject to limited briefing in this Court); FCC v. Fox Televi sion Stations, Inc., 129 S. Ct. 1800, 1819 (2009) (remand ing for consideration of constitutional claims by lower court in the first instance). And because proceedings on remand will not necessarily result in imposition of the Section 924(c)(1)(B)(ii) sentence-respondents could be acquitted at trial, or the district court might reject the government's proof of the Cobray's characteristics-it is possible that no court will have to reach respondents' constitutional challenge.

b. Respondents' challenge is not ripe at this point in the proceedings. An as-applied challenge asserts that "under the facts of [a] specific case[] * * * applying [a statute] would produce unconstitutional results." Cutter v. Wilkinson, 544 U.S. 709, 725 (2005) (citation omitted). Any as-applied challenge would require deter mining what sentence would be the maximum "reason able" sentence based on "the facts found by the jury or admitted by the defendant." Burgess Br. 41 (quoting Rita, 551 U.S. at 372 (opinion of Scalia, J.)). But it is impossible to know now what the "facts found by the jury or admitted by the defendant" would be should re spondents challenge some future sentence. While re spondents admitted certain facts at their guilty plea hearing, they raise a serious prospect that they might withdraw their guilty pleas on remand. See Burgess Br. in Opp. 15-16; O'Brien Br. in Opp. 23-25; see also Pet. Reply Br. 10-11. Whatever happened next-perhaps a trial, perhaps an open guilty plea, perhaps a plea agree ment -would make a new record of admissions or jury findings different from the current record. Thus, a pro nouncement from this Court about the constitutionality of a 30-year sentence on this record would be entirely advisory.

c. If this Court reaches the issue, it should conclude that respondents' putative as-applied challenge has no basis in the Sixth Amendment. Respondents' challenge posits a system of reasonableness review in which "ap pellate courts, in case-by-case fashion," construct maxi mum reasonable sentences based on the Section 3553(a) sentencing criteria to limit the discretion of the sentenc ing judge. Rita, 551 U.S. at 372 (opinion of Scalia, J.). But reasonableness review does not generate predict able maximum sentences on which an offender can rely when embarking on a crime.

The Apprendi rule was based on the idea that a de fendant, before he engages in conduct, is entitled to know the "certain pains" to which his actions expose him under the law and to enjoy the "procedural safeguards designed to protect [the defendant] from unwarranted pains." 530 U.S. at 476 (citation omitted). Thus, the Court held that "[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Id. at 489 (emphasis added; citation omitted; brackets in original). Later cases reiterated the theme that a defendant is entitled to rely on the maximum penalty threatened by the law when committing a crime or pleading guilty.11

9. But the hypothetical maximum reasonable sentence available in a system that includes appellate review for substantive reasonableness is not the sort of "certain pains" on which an offender can rely, because the exis tence of that appellate check creates no ascertainable upper limit on the legally available punishment. The purpose of appellate review certainly is not to create such an entitlement. See Rita, 551 U.S. at 354 ("In sen tencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will im pose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur."). Nor would it be possible for a would-be offender to anticipate the particular combination of facts and policy judgments on which the sentencing court would rely in determining the appropriate sentence-let alone predict the maxi mum sentence that an appellate court might ultimately conclude is reasonable based on those fact- and pol icy-based justifications.

In considering extensions of the Apprendi rule, this Court has looked to "historical practice" and the degree of intrusion on sovereign prerogatives. Ice, 129 S. Ct. at 717. Here, no "historical practice" supports treating a deferential appellate check on unreasonable sentences as if it were a predictable and uniform legal maximum sentence for Sixth Amendment purposes. And extend ing Apprendi to achieve that result would effectively preclude legislatures from relying on appellate review to weed out excessive sentences, and force them instead either to abandon the appellate check or grant jury tri als based on appellate rulings-an outcome that would "make scant sense," put unnecessary "straightjacket[s]" on governments, and "be difficult * * * to administer." Id. at 719.

If as-applied Sixth Amendment challenges were per missible, no sentencing judge would be able to ascertain the upper limit of her authority; every case would have to be considered on its own facts. Nor could any coher ent body of precedent develop to guide sentencing judges. Each hypothetical maximum reasonable sen tence would depend on the unique set of facts proved to the jury or admitted by the defendant and the sentenc ing court's application of its own policy judgment-all filtered through abuse-of-discretion appellate review. The resulting chaos would undermine the remedy the Court fashioned in Booker, supra, and reaffirmed in Rita, supra, and Gall v. United States, 552 U.S. 38 (2007), and it would deprive sentencing courts of their constitutionally permitted latitude "to take account of factual matters not determined by a jury and to increase the sentence in consequence," Rita, 551 U.S. at 352.

d. All that aside, such a challenge would fail on the facts here. In brief, the "facts * * * admitted by the defendant[s]" for Apprendi purposes are these:

* Respondents planned with their confederates for several months to rob an armored car.

* Respondents gained access to three stolen cars and three firearms (a Sig-Sauer pistol, a Cobray MAC-11, and an AK-47) as part of their plan.

* Following through on their plan, respondents assaulted an armored car and its two guards while brandishing those firearms on a weekday morning in a commercial area of a major city.

* Respondents aborted only because one of the guards escaped their control.

App., infra, 1a-5a. In addition, the fact of a prior convic tion is not subject to Apprendi, see 530 U.S. at 488-490, and each respondent has a fair history of misdemeanor and felony convictions, see C.A. Supp. App. 13-16 (O'Brien), 57-66 (Burgess). Imposing a 30-year sentence on repeat offenders for using multiple firearms in a dan gerous, threatening, and premeditated way would be within the sentencing judge's discretion, irrespective of whether one of the firearms was a machinegun.

e. Finally, the Court should reject O'Brien's invita tion to invoke "the doctrine of constitutional avoidance," Br. 37, to construe Section 924(c)(1)(B)(ii) to state an element in all cases. For the canon to apply, "the stat ute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled." Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998). But as we have explained, when this statute is carefully considered, it is not ambiguous at all.

The avoidance "canon is followed out of respect for Congress, which we assume legislates in light of consti tutional limitations." Almendarez-Torres, 523 U.S. at 238 (citation omitted). Congress did so in 1998 by re specting McMillan's assurance that elevated mandatory minimum sentences within an authorized range could be imposed on the basis of judicial factfinding. See Harris, 536 U.S. at 556 ("The statute at issue in this case was passed when McMillan provided the controlling instruc tion, and Congress would have had no reason to believe it was approaching the constitutional line by following that instruction."). Constitutional law is to the same effect today; the Court is not confronted by a "grave and doubtful" constitutional issue, id. at 555 (citation omit ted), if it construes Section 924(c)(1)(B)(ii) as Congress wrote it.

2. This Court should reject or refuse to decide O'Brien's claim that the government must prove he knew the Cobray was a machinegun

O'Brien contends that, irrespective of the answer to the question presented, Section 924(c)(1)(B)(ii) requires the government to prove his knowledge that the Cobray was a machinegun-something it concededly cannot do. See O'Brien Br. 13-17. This Court should refuse to reach that issue because it is not properly presented here, but if it does decide the question, it should resolve it against O'Brien.

a. This Court should not reach the knowledge issue because, as O'Brien concedes, it is not part of the ques tion presented (see Pet. I; O'Brien Br. 15), nor was it pressed or passed upon in the courts below. See pp. 19- 20, supra. O'Brien's suggestions (Br. 13, 17) that the Court avoid answering the question presented or dis miss the writ as improvidently granted are particularly inappropriate given that he did not raise the knowledge issue in his brief in opposition, notwithstanding the gov ernment's pointed discussion of the issue in its petition (at 18-19). See S. Ct. Rule 15.2.

O'Brien describes the knowledge issue as "ana lytically distinct from the question [presented]." Br. 15. But in fact, this Court's decision in Dean suggests that resolution of the sentencing factor/element question is a prerequisite to intelligent analysis of the knowledge issue. Dean considered whether Section 924(c)(1)(A)(iii)'s enhancement when "the firearm is dis charged" required proof of the defendant's mental state. Dean held that it did not, partly based on the tradition of imposing criminal punishment for the unintended con sequences and unknown circumstances of otherwise un lawful conduct. See 129 S. Ct. at 1855-1856. That analy sis is appropriate when a sentencing factor is at issue (because the offense elements establish the otherwise unlawful conduct), but it may carry less force when an element is at issue (because the element may itself de fine the unlawful conduct). The Court should define the nature of machinegun enhancement before considering whether it requires proof of a mental state.

b. Dean also demonstrates why O'Brien's position on the knowledge issue is wrong on the merits. Like Clause (A)(iii) at issue in Dean, Clause (B)(ii) contains no express mental state, so it would be inappropriate to imply one. See 129 S. Ct. at 1853. Also like Clause (A)(iii), Clause (B)(ii) is phrased in the passive voice, suggesting the statute is unconcerned with the knowl edge or intentions of the criminal actor. See ibid. Fur thermore, Dean found it unnatural to "extend" the mental state of the principal paragraph of Section 924(c)(1)(A) "all the way down" to modify Clause (A)(iii), see id. at 1854; it would be even more unnatural to ex tend it all the way to Clause (B)(ii).

O'Brien's reliance (Br. 14-15) on Staples v. United States, 511 U.S. 600 (1994), is misplaced, because fire arm type plays quite a different role in 26 U.S.C. 5861(d), the firearm-registration statute at issue in Sta ples. There, if the government were not required to prove knowledge of the characteristics that made the object in question a machinegun, committing the offense "would require the defendant to have knowledge only of traditionally lawful conduct," Staples, 511 U.S. at 618, effectively "dispens[ing] with mens rea," id. at 619. The application of that principle here is that the government must prove a defendant's knowledge of the characteris tics that made the Cobray a "firearm" under 18 U.S.C. 921(a)(3), not a "machinegun" under 18 U.S.C. 921(a)(23) and 26 U.S.C. 5845(b). And independent statutory ele ments assure that a defendant subject to Clause (B)(ii) is culpable-as in Dean, he "is already guilty of unlawful conduct twice over: a violent or drug trafficking offense and the use, carrying, or possession of a firearm in the course of that offense." 129 S. Ct. at 1855.

* * * * *

For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed and the case remanded for further proceedings.

Respectfully submitted.

Solicitor General


1 See Grogan v. Garner, 498 U.S. 279 (1991) (replacing the narrower term "judgments" with the broader term "liabilities" did not affect the principle that fraud judgments are nondischargeable in bankruptcy); Director of Revenue v. CoBank ACB, 531 U.S. 316, 323 (2001) (technical and conforming amendment); Department of Commerce v. United States House of Reps., 525 U.S. 316, 343 (1998) (opinion of O'Connor, J., for three Justices) (doubting that Congress intended "arguably * * * the single most significant change in the method of conducting the decennial census since its inception * * * by enacting only a subtle change in phraseology"); Chisom v. Roemer, 501 U.S. 380, 396 (1991) (amendment to Voting Rights Act of 1965, 42 U.S.C. 1973, using the word "representatives" did not repeal Act's coverage of judicial elec tions); Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 317-318 (1985) (minor wording change made during codification of juris dictional provisions into Title 28); see also Burgess Br. 16-17, 27 (citing Finley v. United States, 490 U.S. 545 (1989) (minor changes made during codification)).

2 O'Brien takes out of context the government's suggestion in its brief in Castillo that the 1998 amendments intended no substantive change. See O'Brien Br. 22. That position cannot be divorced from the government's argument in Castillo that the pre-1998 version of the statute also made firearm type a sentencing factor. In that context, the government's statement reflected the view that the 1998 amendments only strengthened the case for treating firearm type as a sentencing factor. Castillo conceded that the 1998 amendments-at issue here- "suggest" a sentencing-factor interpretation, but found those amend ments irrelevant to the meaning of the prior statute. 530 U.S. at 125.

3 See also Watson v. United States, 552 U.S. 74, 78-79 (2007); Mus carello v. United States, 524 U.S. 125, 127-132 (1998); United States v. Gonzales, 520 U.S. 1, 4-11 (1997); Bailey v. United States, 516 U.S. 137, 144-146 (1995); Smith v. United States, 508 U.S. 223, 228-229 (1993); Deal v. United States, 508 U.S. 129, 131-132 (1993).

4 O'Brien suggests that the language here is not clear enough to designate firearm type as a sentencing factor because one can imagine language that, in his view, would be clearer. See Br. 20 & n.4, 23. But "it is always possible to construct through hindsight an alternate structure for a statute with alternative wording that would render it more clear." Bruesewitz v. Wyeth Inc., 561 F.3d 233, 246 (3d Cir. 2009), petition for cert. pending, No. 09-152 (filed Aug. 4, 2009). Cf. United States v. Hayes, 129 S. Ct. 1079, 1085 (2009) (holding that the domestic relationships specified in 18 U.S.C. 921(a)(33)(A) are not required elements of predicate offense, even though "lawmakers might have better conveyed their intent" through structural and punctuation changes).

5 Burgess's observation (Br. 17 & n.8) that some federal criminal statutes are not organized in this way is beside the point. Plainly there is no rule that statutes must progress from elements to sentencing factors-especially not when a statute has (as those cited by Burgess do) clear internal headings and cross-references explaining the relation ship among its provisions. But when (as here) a statute's language and structure point to such a progression, common sense suggests that was what Congress intended.

6 O'Brien observes (Br. 25) that Section 924(c)(1)(A)(i) provides for a minimum sentence based exclusively on offense elements, but that section simply states (as any penal statute must) the authorized sentencing range for the offense it describes. What places Section 924(c)(1) in the sentencing factor tradition is that each of the aggra vated ways of committing the offense triggers a higher minimum sen tence within that authorized range (rather than an "increase [in that] penalty range," Jones, 526 U.S. at 233).

7 Burgess asserts that "status as a machinegun" is "an element with respect to * * * violations set forth in 26 U.S.C. 5861(a) through (j)." Br. 22. But all "firearm[s]" covered by 26 U.S.C. 5845(a)-machine guns included-are treated alike; different firearms do not define dif ferent aggravated offenses, and what matters here is whether the fact is made an element of an aggravated offense. See, e.g., Jones, 526 U.S. at 235 ("[S]erious bodily injury has traditionally been treated * * * as defining an element of the offense of aggravated robbery."); Harris, 536 U.S. at 553 ("[B]randishing and discharging affect the sentences for numerous federal crimes.").

8 With respect to other considerations, the parties agree (Gov't Br. 29, Burgess Br. 27-28, O'Brien Br. 28-29) that the 1998 legislative his tory is silent on the question presented. As for policy, we explained in our opening brief why firearm type in particular was a reasonable sub ject for Congress to commit to the sentencing judge in the context of this statute. Br. 31-34. O'Brien's general endorsement of jury determi nations (Br. 26-27) would apply equally to every fact in every criminal case; it says nothing about why firearm type in particular cannot fairly be entrusted to the judge in a Section 924(c)(1) case.

9 Amicus Center on the Administration of Criminal Law is quite wrong to claim that Booker extends Apprendi to any law "establishing what punishment is available by law," Br. 17 (quoting Apprendi, 530 U.S. at 519 (Thomas, J., concurring)). Justice Stevens's opinion is clear that the mandatory Sentencing Guidelines violated the Sixth Amendment not because they specified sentencing ranges generally, but because "the 'statutory maximum' for Apprendi purposes" in a guideline system is "the maximum sentence a judge may impose [within the system] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Booker, 543 U.S. at 232 (quoting Blakely, 542 U.S. at 303) (emphasis omitted).

10 See, e.g., Harris, 536 U.S. at 567-568 (plurality opinion) (noting that "[l]egislatures and their constituents have relied upon McMillan to exercise control over sentencing through dozens of statutes like the one the Court approved in that case"); see also id. at 570 (Breyer, J., con curring in part and concurring in the judgment) (recognizing that "[d]uring the past two decades, * * * mandatory minimum sentencing statutes have proliferated in number and importance."); Apprendi, 530 U.S. at 487 n.13 (noting the Court was "[c]onscious of the likelihood that legislative decisions may have been made in reliance on McMil lan").

11 See Blakely, 542 U.S. at 309 ("In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.") (emphasis added); id. at 311 (describing the pre- Apprendi regime as one "in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum poten tial sentence balloon") (emphasis added); Harris, 536 U.S. at 566 (plurality opinion) ("The Fifth and Sixth Amendments ensure that the defendant 'will never get more punishment than he bargained for when he did the crime.'") (emphasis added) (quoting Apprendi, 530 U.S. at 498 (Scalia, J., concurring)).