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Federal Sentence Enhancer vs. Offense Element

U.S. v. O’Brien, USSC No. 08-1569, 5/24/10

§ 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of the evidence at sentencing.

The border between offense element and sentence enhancer remains indistinct at crucial junctures. The so-called sentencing revolution was ushered in with Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). But what happens when the aggravating fact triggers a mandatory minimum; an increase in the floor rather than ceiling? The Court suggests that this question is one of legislative intent (“Subject to this constitutional constraint, whether a given fact is an element of the crime itself or a sentencing factor is a question for Congress.”). This analysis turns on the following “five factors directed at determining congressional intent: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” Whether those particular factors are constitutionally mandated might be interesting, though not necessarily of much moment for Wisconsin practice, where mandatory minimums are few and far between. But this just masks a more fundamental problem, which is whether any sentencing aggravators are subject to the proof beyond reasonable doubt requirement of Apprendi. The opinion contains, in this regard, the following intriguing aside:

… Sentencing factors traditionally involve characteristics of the offender—such as recidivism, cooperation with law enforcement, or acceptance of responsibility. … Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” …

This fault line — offender- vs, offense-characteristics — was recognized some time ago by sentencing expert Doug Berman, and he is naturally excited to see it expressed now by the Court (as to which, along with relevant links, go here). There has been surprisingly little  Wisconsin litigation aimed at defining the boundary between substantive offense and sentencing enhancement. And what little there is isn’t terribly helpful. Compare, for example, State v. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248 (second offense possession of a firearm by a felon, § 941.29(2m) (1997-98), which contains language “whoever violates … is guilty of a Class D felony,” is substantive offense), with State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982) (similar language in concealing identity during commission of crime, § 946.62 (1979-80) creates sentence enhancer). In brief, there’s a recurrent underlying problem not likely to be resolved anytime soon. And that in turn suggests remaining alert to the need to enter proper objection so that the issue can be properly litigated.

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