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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)(I)(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, foreclosed 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:



1. As a matter of statutory interpretation, § 924(c)(1)(A) defines a single offense, in which brandishing and discharging are sentencing factors to be found by the judge, not offense elements to be found by the jury. Pp. 552-556.

(a) The prohibition's structure suggests that brandishing and discharging are sentencing factors. 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. The instant statute's lengthy principal paragraph lists the elements of a complete crime. Toward the end of the paragraph is the word "shall," which often divides offense-defining provisions from sentence-specifying ones. Jones v. United States, 526 U. S. 227, 233. And following "shall" are the separate subsections, which explain how defendants are to "be sentenced." Thus this Court can presume that the principal paragraph defines a single crime and its subsections identify sentencing factors. Pp. 552-553.

(b) As Jones illustrates, the statute's text might provide evidence to the contrary, but the critical textual clues here reinforce the singleoffense interpretation. Brandishing has been singled out as a paradigmatic sentencing factor, Castillo, supra, at 126. Under the Sentencing Guidelines, moreover, brandishing and discharging are factors that affect sentences for numerous crimes. The incremental changes in the minimum penalty at issue here are precisely what one would expect to see in provisions meant to identify matters for the sentencing judge's consideration. Pp. 553-554.

(c) The canon of constitutional avoidance-which provides that when a statute is susceptible of two constructions, the Court must adopt the one that avoids grave and doubtful constitutional questions-plays no role here. The constitutional principle that petitioner says a singleoffense interpretation of the statute would violate-that any fact increasing the statutory minimum sentence must be accorded the safeguards assigned to elements-was rejected in McMillan. Petitioner's suggestion that the canon be used to avoid overruling one of this Court's own precedents is novel and, given that McMillan was in place when § 924(c)(1)(A) was enacted, unsound. Congress would have had no reason to believe that it was approaching the constitutional line by following the instruction this Court gave in McMillan. Pp. 554-556.

2. Reaffirming McMillan and employing the approach outlined in that opinion, the Court concludes that § 924(c)(1)(A)(ii) is constitutional. Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing does not evade the Fifth and Sixth Amendments' requirements. Congress simply dictated the precise weight

Full Text of Opinion

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