In US v. O'Brien, 08-1569, the Supreme Court affirmed the First Circuit's decision affirming defendant's sentence for using a firearm in furtherance of a crime of violence, holding that, contrary to the government's arguments, the fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing.
As the Court wrote: "The Court must interpret, once again, §924(c) of Title 18 of the United States Code. This provision prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime, or the possession of a firearm in furtherance of such crimes. §924(c)(1)(A). A violation of the statute carries a mandatory minimum term of five years' imprisonment, §924(c)(1)(A)(i); but if the firearm is a machinegun, the statute requires a 30 year mandatory minimum sentence, §924(c)(1)(B)(ii). Whether a firearm was used, carried, or possessed is, as all concede, an element of the offense. At issue here is whether the fact that the firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt or a sentencing factor to be proved to the judge at sentencing."
- Full Text of US v. O'Brien, 08-1569