Harris v. United States, 536 U.S. 545, 8 (2002)

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552

HARRIS v. UNITED STATES

Opinion of the Court

brandishing a sentencing factor. Id., at 812; accord, United States v. Barton, 257 F. 3d 433, 443 (CA5 2001); United States v. Carlson, 217 F. 3d 986, 989 (CA8 2000); United States v. Pounds, 230 F. 3d 1317, 1319 (CA11 2000). The court also held that the constitutional argument was foreclosed by McMillan. 243 F. 3d, at 809.

We granted certiorari, 534 U. S. 1064 (2001), and now affirm.

II

We must first answer a threshold question of statutory construction: Did Congress make brandishing an element or a sentencing factor in 924(c)(1)(A)? In the Government's view the text in question defines a single crime, and the facts in subsections (ii) and (iii) are considerations for the sentencing judge. Petitioner, on the other hand, contends that Congress meant the statute to define three different crimes. Subsection (ii), he says, creates a separate offense of which brandishing is an element. If petitioner is correct, he was neither indicted nor tried for that offense, and the 7-year minimum did not apply.

So we begin our analysis by asking what 924(c)(1)(A) means. The statute does not say in so many words whether brandishing is an element or a sentencing factor, but the structure of the prohibition suggests it is the latter. Federal laws usually list all offense elements "in a single sentence" and separate the sentencing factors "into subsections." Castillo v. United States, 530 U. S. 120, 125 (2000). Here, 924(c)(1)(A) begins with a lengthy principal paragraph listing the elements of a complete crime—"the basic federal offense of using or carrying a gun during and in relation to" a violent crime or drug offense. Id., at 124. Toward the end of the paragraph is "the word 'shall,' which often divides offense-defining provisions from those that specify sentences." Jones, 526 U. S., at 233. And following "shall" are the separate subsections, which explain how defendants are to "be sentenced." Subsection (i) sets a catch-

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