Castillo v. United States, 530 U.S. 120, 7 (2000)

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

126

CASTILLO v. UNITED STATES

Opinion of the Court

Second, we cannot say that courts have typically or traditionally used firearm types (such as "shotgun" or "machinegun") as sentencing factors, at least not in respect to an underlying "use or carry" crime. See Jones, supra, at 234 ("[S]tatutory drafting occurs against a backdrop . . . of traditional treatment of certain categories of important facts"); see also Almendarez-Torres, supra, at 230 (recidivism "is as typical a sentencing factor as one might imagine"). Traditional sentencing factors often involve either characteristics of the offender, such as recidivism, or special features of the manner in which a basic crime was carried out (e. g., that the defendant abused a position of trust or brandished a gun). See 18 U. S. C. § 3553(a)(1) (providing that a sentencing court "shall" consider "the history and characteristics of the defendant" and "the nature and circumstances of the offense"); see also, e. g., United States Sentencing Commission, Guidelines Manual § 4A1.1 (Nov. 1998) (sentence based in part on defendant's criminal history); § 3B1.3 (upward adjustment for abuse of position of trust); § 5K2.6 (same for use of a dangerous instrumentality). Offender characteristics are not here at issue. And, although one might consider the use of a machinegun, or for that matter a firearm, as a means (or a manner) in which the offender carried out the more basic underlying crime of violence, the underlying crime of violence is not the basic crime here at issue. Rather, as we have already mentioned, the use or carrying of a firearm is itself a separate substantive crime. See Busic, supra, at 404; Simpson, supra, at 10.

The Government argues that, conceptually speaking, one can refer to the use of a machinegun as simply a "metho[d]" of committing the underlying "firearms offense." Brief for United States 23. But the difference between carrying, say, a pistol and carrying a machinegun (or, to mention another factor in the same statutory sentence, a "destructive device," i. e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the ele-

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: October 4, 2007