Harris v. United States, 536 U.S. 545, 29 (2002)

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Cite as: 536 U. S. 545 (2002)

Thomas, J., dissenting

ants, I would reaffirm Apprendi, overrule McMillan, and reverse the Court of Appeals.

I

Harris was indicted for distributing marijuana in violation of 21 U. S. C. 841 and for carrying a firearm "in relation to" a drug trafficking crime in violation of 18 U. S. C. 924(c)(1)(A). Harris pleaded guilty to distributing marijuana but disputed that he had carried a firearm "in relation to" a drug trafficking crime. The District Court disagreed,1 and he was convicted by the judge, having waived his right to trial by jury. Although the mandatory minimum prison sentence under 924(c)(1)(A)(i) is five years in prison, the presentence report relied on 924(c)(1)(A)(ii), which increases the mandatory minimum prison sentence to seven years when the firearm is brandished.2 At sentencing, the District Court acknowledged that it was a "close question" whether Harris "brandished" a firearm, and noted that "[t]he only thing that happened here is [that] he had [a gun] during the drug transaction." App. 231-232, 244-247. The District Court nonetheless found by a preponderance of the evidence that Harris had brandished a firearm and as a result sentenced him to the minimum mandatory sentence of seven years' imprisonment for the violation of 924(c)(1)(A).

Relying on McMillan, the Court of Appeals affirmed the sentence and held as a matter of statutory interpretation that brandishing is a sentencing factor, not an element of the 924(c)(1)(A) offense. Accordingly, the Court of Appeals

1 Harris owned a pawn shop and routinely wore a gun at work; the District Court accepted that it was Harris' ordinary practice to wear a gun whether or not he was selling small amounts of marijuana to his friends. The District Court, however, determined that the gun was carried "in relation to" a drug trafficking offense within the meaning of 924(c) because it was "unable to draw the distinction that if it is [carried] for a legitimate purpose, it cannot be for an illegitimate purpose." App. 163.

2 The presentence report recommended that Harris be given a term of imprisonment of zero to six months for the distribution charge.

573

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