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February 8, 2005

The 6th Circuit on Booker and § 924 Firearm-Type Provision

With thanks to Appellate Law & Practice for the tip, I am proud to spotlight that the Sixth Circuit has now issued a Booker opinion which can be a source of pride (in contrast to its plain error mess noted here and here).  Today in US v. Harris, Nos. 03-6207/6255 (6th Cir. Feb. 8, 2005) (available here), the Sixth Circuit thoughtfully builds off Booker to conclude "that the § 924 Firearm-Type Provision mandatory minimum is not binding on a sentencing court unless the type of firearm involved is charged in the indictment and proved to a jury beyond a reasonable doubt."

The analysis in the Sixth Circuit's Harris case intricately explores the interaction of fact-finding within the now advisory guidelines and for still binding statutes such as § 924 which both raise minimums and maximums.  Here is the summary of the Court's detailed analysis:

We conclude that the tradition of treating firearm type as an element, see Castillo, 536 U.S. at 126-27,126-27, the sharply higher penalties involved, see id. at 131, and the serious constitutional problems that would result from a contrary conclusion, see DeBartolo, 485 U.S. at 575, are together sufficient to overcome the presumption, based on the structure of the statute, that § 924(c)(1)(B) is intended to set out sentencing factors rather than elements of separate crimes.

Having determined that the firearm types set out in the § 924 Firearm-Type Provision are elements of separate crimes, rather than sentencing factors, we must conclude that Booker does require that § 924 Firearm-Type Provision enhancements be charged in the indictment and proved to a jury beyond a reasonable doubt. We emphasize that our holding on this issue is narrow. We do not address the general constitutionality of mandatory-minimum sentences imposed through judicial fact-finding, a practice explicitly approved by the Supreme Court prior to Booker when traditional sentencing factors, rather than elements, are involved. See Harris, 536 U.S. at 568; see also United States v. Koch, 383 F.3d 436, 438-39 (6th Cir. 2004) (en banc), overruled on other grounds by Booker, 125 S. Ct. 738. Instead, we hold only that in light of Supreme Court precedent distinguishing those aspects of crimes traditionally considered elements from those traditionally considered sentencing factors, the § 924 Firearm-Type Provision mandatory minimum is not binding on a sentencing court unless the type of firearm involved is either admitted by the defendant or charged in the indictment and proved to a jury beyond a reasonable doubt. [FN 5]

[FN 5] We emphasize that, in light of [the Supreme Court's decision in] Harris, this holding does not apply to the mandatory-minimum sentences relating to firearm brandishing and discharge in § 924(c)(1)(A)(ii)-(iii) (the "§ 924 Brandishing/Discharge Provisions"), which continue to bind sentencing judges.

UPDATE:  At this post from Appellate Law & Practice, you can now find more background and commentary on the Sixth Circuit's important Harris decision.

February 8, 2005 at 10:55 AM | Permalink

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YUCK FOO NIGGER

Posted by: Johnny Rocketfinger | Apr 28, 2005 2:11:24 PM

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