Sup. Ct. reaffirms that use of machinegun is an element, not a sentencing factor
U.S. v. O'Brien, handed down today. 18 USC §924(c) provides for 5 extra years' sentence for use of a firearm in certain federal crimes, and 30 years' extra for use of a machinegun. So does that mean (1) use of the described firearms is a sentencing factor, making for a stiffer sentence for the underlying federal offense, or (2) this describes an independent crime, with elements of committing the underlying offense and of being armed while so doing? If the first, the fact of being armed can be decided by the judge during sentencing; if the second, it must be decided by the jury, since it is part of the crime.
Years back, the Supreme Court had ruled that 924(c) described a separate offense, and an element that must be proven to the jury. But Congress amended the section in 1998. Now, per Justice Kennedy, the Supreme Court rules that the 1998 amendment and restructuring does not change things; it remains a new offense with element that must go to the jury for determination.