OCTOBER TERM, 2001
certiorari to the united states court of appeals for the fourth circuit
No. 00-10666. Argued March 25, 2002—Decided June 24, 2002
Petitioner, who sold illegal narcotics at his pawnshop with an unconcealed semiautomatic pistol at his side, was arrested for violating, inter alia, 18 U. S. C. § 924(c)(1)(A), which provides in relevant part that a person who in relation to a drug trafficking crime uses or carries a firearm "shall, in addition to the punishment provided for such crime," "(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to . . . not less than 7 years; and (iii) if the firearm is discharged, be sentenced to . . . not less than 10 years." Because the Government proceeded on the assumption that the provision defines a single crime and that brandishing is a sentencing factor to be found by the judge following trial, the indictment said nothing about brandishing or subsection (ii), simply alleging the elements from the principal paragraph. Petitioner was convicted. When his presentence report recommended that he receive the 7-year minimum sentence, he objected, arguing that brandishing was an element of a separate statutory offense for which he was not indicted or convicted. At the sentencing hearing, the District Court overruled his objection, found that he had brandished the gun, and sentenced him to seven years in prison. Affirming, the Fourth Circuit rejected petitioner's statutory argument and found that McMillan v. Pennsylvania, 477 U. S. 79, fore-closed his argument that if brandishing is a sentencing factor, the statute is unconstitutional under Apprendi v. New Jersey, 530 U. S. 466. In Apprendi, this Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum is, in effect, an element of the crime, which must be submitted to a jury, and proved beyond a reasonable doubt (and, in federal prosecutions, alleged in an indictment handed down by a grand jury). But 14 years earlier, McMillan sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the judge found that the defendant had possessed a firearm.
Held: The judgment is affirmed.
243 F. 3d 806, affirmed.
Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, and IV, concluding:
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