et argued february decided may respondents burgess carried firearm attempted robbery count three indictment charged using firearm furtherance crime violence carries mandatory minimum prison term count four alleged use machinegun pistol authorities believed operated fully automatic firearm furtherance crime carries mandatory minimum term ii government moved dismiss fourth count basis establish count beyond reasonable doubt maintained ii machinegun provision sentencing enhancement determined district upon conviction count three dismissed count four rejected government position respondents pleaded guilty remaining counts sentenced term burgess term convictions affirming district ii ruling first circuit looked primarily castillo held machinegun provision earlier version constituted element offense sentencing factor found castillo close binding absent clearer dramatic changes made congress amendment clearer legislative history held fact firearm machinegun element proved jury beyond reasonable doubt sentencing factor proved judge sentencing pp generally fact increase prescribed range penalties criminal defendant exposed element crime apprendi new jersey charged indictment proved jury beyond reasonable doubt hamling rather proved judge sentencing preponderance evidence mcmillan pennsylvania subject constitutional constraint congress determines whether factor element sentencing factor congress explicit courts look statute provisions framework guidance analysis current machinegun provision begins castillo found bare language prior version neutral ruled four factors language structure tradition risk unfairness severity sentence favored treating machinegun provision element offense fifth factor legislative history favor either side ibid pp relevant amendment divided lengthy principal sentence separate subparagraphs thus regard first castillo factor observation congress placed element carries firearm word single sentence broken dashes separated subsections longer holds true however amendment affect second fifth castillo factors except legislative history remains relatively silent continues favor treating machinegun provision element amendment effect language structure factor requires closer examination pp given determination castillo machinegun provision prior version element substantive change statute inferred bsent clear indication congress change policy grogan garner nothing amendment indicates change three principal differences previous current first substantive change shifts mandatory sentences mandatory minimum sentences second also substantive made direct response holding bailey uses carries preamendment version connotes mere possession adds possesses uses carries language principal paragraph provides sentencing enhancements brandishing discharging firearm ii iii state sentencing factors harris neither substantive changes suggests congress meant transform machinegun provision element sentencing factor third difference machinegun provision relocation principal paragraph unmistakably lists offense elements separate subsection structural stylistic change provides clear indication congress meant alter treatment machineguns offense element logical explanation restructuring intended break lengthy principal paragraph exceeded words readable statute step current legislative drafting guidelines recognized placing factors separate subsections one way congress might signal treating sentencing factors rather elements castillo supra rejected view structural consideration predominates even factors point direction harris supra current structure favorable treating machinegun provision sentencing factor true castillo particularly machinegun provision positioned sentencing factors provided ii iii ii structural point overcome substantial weight castillo factors principle congress enact significant change without clear indication purpose pp affirmed kennedy delivered opinion roberts stevens scalia ginsburg breyer alito sotomayor joined stevens filed concurring opinion thomas filed opinion concurring judgment petitioner martin arthur burgess writ certiorari appeals first circuit may justice kennedy delivered opinion must interpret title code provision prohibits use carrying firearm relation crime violence drug trafficking crime possession firearm furtherance crimes violation statute carries mandatory minimum term five years imprisonment firearm machinegun statute requires mandatory minimum sentence ii whether firearm used carried possessed concede element offense issue whether fact firearm machinegun element proved jury beyond reasonable doubt sentencing factor proved judge sentencing earlier case determined analogous machinegun provision previous version constituted element offense proved jury castillo castillo decision however addressed statute existed congressional amendments made case castillo brandishing provision version held provide sentencing factor element offense harris light amendments harris decision question interpret machinegun provision considered instant case june respondents martin arthur burgess attempted rob armored car making scheduled delivery cash bank along third collaborator respondents hid minivan waited armored car make stop men carried firearm containing nearly million attended two guards armored car arrived guard began unload boxes coins three men came van one brandished weapon ordered guards get ground one guard ran nearby restaurant respondents abandoned robbery fled without taking money shots fired one injured authorities apprehended respondents recovered three firearms used attempted robbery firearms semiautomatic pistol semiautomatic rifle cobray pistol cobray pistol manufactured external appearance semiautomatic firearm according federal bureau investigation though operated fully automatic weapon apparently due alteration original firing mechanism respondents dispute whether cobray fact operate fully automatic weapon respondents indicted multiple counts relevant counts three four charged offenses count three charged respondents using firearm furtherance crime violence carries statutory minimum five years imprisonment count four charged respondents specific terms alleging use machinegun cobray furtherance crime violence proscribed ii latter provision mandates minimum sentence years imprisonment government moved dismiss count four basis unable establish count beyond reasonable doubt issues present case require consider contention defendant uses carries possesses firearm must aware weapon characteristics opinion expresses views point government maintained machinegun provision ii sentencing factor respondents convicted carrying firearm count three determine sentencing particular firearm machinegun thus activating mandatory minimum district dismissed count four government requested rejected government position machinegun provision sentencing enhancement determined sentencing conviction count three ruled machinegun provision element crime thus invoke minimum sentence government required charge indictment prove jury cobray machinegun point district foreclosed possibility respondents facing minimum respondents pleaded guilty remaining counts including count three district sentenced term conviction run consecutively sentence two counts sentenced burgess term conviction also run consecutively sentence charges government appealed district ruling machinegun provision constitutes element offense instead sentencing factor appeals first circuit affirmed looked primarily castillo held machinegun provision earlier version constituted element offense sentencing factor noted statute consideration castillo revised congress break ing single sentence subparagraphs acknowledged earlier repealed version statute slightly favorable respondents current version markedly found evidence breaking sentence present subdivisions recasting language anything current trend probably ease reading convert lengthy sentences criminal statutes subsections fashion tax code concluded absent clearer dramatic change language legislative history expressing specific intent assign judge jury functions think castillo close binding reconsideration issue left ibid see also rodriguez de quijas express precedent direct application case yet appears rest reasons rejected line decisions appeals follow case directly controls leaving prerogative overruling decisions granted certiorari ii elements crime must charged indictment proved jury beyond reasonable doubt hamling jones sentencing factors hand proved judge sentencing preponderance evidence see mcmillan pennsylvania though one exception established see unconstitutional legislature remove jury assessment facts increase prescribed range penalties criminal defendant exposed apprendi new jersey quoting jones supra stevens concurring words sentencing factors may guide confine judge discretion sentencing offender within range prescribed statute apprendi supra sentencing factors increase maximum sentence defendant might otherwise receive based purely facts found jury subject constitutional constraint whether given fact element crime sentencing factor question congress congress explicit often case seldom directly addresses distinction sentencing factors elements courts look provisions framework statute determine whether fact element sentencing factor supra examining whether machinegun provision element sentencing factor analysis must begin previous examination question castillo castillo considered prior version provided whoever relation crime violence drug trafficking crime uses carries firearm shall addition punishment provided crime violence drug trafficking crime sentenced imprisonment five years firearm rifle shotgun imprisonment ten years firearm machinegun destructive device equipped firearm silencer firearm muffler imprisonment thirty years supp determining whether machinegun provision version constituted element sentencing factor castillo observed bare statutory language neutral examined five factors directed determining congressional intent language structure tradition risk unfairness severity sentence legislative history unanimously concluded machinegun provision provided element offense noting first four factors favored treating legislative history significantly favor either side ibid iii section amended current form amendment enacted considered castillo supra version statute issue instant case concerns current version statute provides except extent greater minimum sentence otherwise provided subsection provision law person relation crime violence drug trafficking crime uses carries firearm furtherance crime possesses firearm shall addition punishment provided crime violence drug trafficking crime sentenced term imprisonment less years ii firearm brandished sentenced term imprisonment less years iii firearm discharged sentenced term imprisonment less years firearm possessed person convicted violation subsection rifle shotgun semiautomatic assault weapon person shall sentenced term imprisonment less years ii machinegun destructive device equipped firearm silencer firearm muffler person shall sentenced term imprisonment less years amendment make substantive changes statute discussed purposes present case apparent effect amendment divide lengthy principal sentence separate subparagraphs observation considering first castillo factor congress placed element carries firearm word single sentence broken dashes separated subsections longer holds true aside new structure however amendment nothing affect second fifth castillo factors factors except legislative history assuming relevance remains relatively silent continues favor conclusion machinegun provision element offense legal tradition past congressional practice second castillo factor factor consulted statute text unclear whether certain facts constitute elements sentencing factors sentencing factors traditionally involve characteristics offender recidivism cooperation law enforcement acceptance responsibility characteristics offense traditionally treated elements use machinegun lies closest heart crime issue less true today years ago castillo unsurprisingly firearm type treated element number statutes numerous gun crimes make substantive distinctions weapons pistols machineguns ibid see government counters tradition pattern evolved since version review castillo enacted government contends federal sentencing guidelines altered tradition treating possession firearm sentencing factor brief citing sentencing commission guidelines manual raising base offense level offense involved firearm argument persuasive sentencing reform act stat establishing federal sentencing guidelines enacted four years version review castillo see abuse act stat resulting guidelines effective still enactment statute issue castillo years conclusion castillo firearm type traditionally treated offense element government claim benefit shift law traditionally treats firearm type guidelines supposed shift occurred version enacted guidelines explicitly taken account analyzed traditions castillo discussing federal sentencing guidelines determining traditionally qualifies sentencing factor third castillo factor potential unfairness unchanged restructuring explained castillo treating machinegun provision sentencing factor might unnecessarily produce conflict judge jury jury may well decide several weapons defendant used concern judge may know weapon jurors determined defendant used judge later decision defendant used machinegun rather say pistol might conflict jury belief actively used pistol ibid concern arises current version jurors might determine among several weapons defendant used carried possessed furtherance crime government response permitting judge make finding streamlin proceedings without interfering accuracy brief unconvincing address particular unfairness concern expressed castillo alleviated restructuring government suggest subjected unfairness machinegun provision continues treated element fourth castillo factor severity sentence accompanying finding defendant carried machinegun also unaffected statute restructuring finding defendant carried machinegun contrast less dangerous firearm vaults defendant mandatory minimum sentence years castillo supra years case firearm brandished ii akin incremental changes minimum one expect see provisions meant identify matters sentencing judge consideration harris years years drastic sixfold increase strongly suggests separate substantive crime one substantive difference old new versions might bear fourth factor previous version provided mandatory sentences years using carrying firearm years firearm machinegun example see supp current statute provides mandatory minimums less years using possessing firearm less brandishing less firearm machinegun ii ii government argues difference critical sentence conceivable statute even without finding particular weapon machinegun brief distinction theory perhaps practice neither government party amicus identified single defendant whose conviction possessing brandishing nonspecific firearm led sentence approaching sentence required firearm machinegun respondents advise without refutation courts impose mandatory minimum years imprisonment brandishing nonspecific weapon longest sentence come litigants attention years brief respondent citing batts fed appx per curiam see also harris supra thomas dissenting indeed instant case burgess received statutory minimum sentence received months machinegun enhancement table government seek anything approaching terms instead requesting terms respondent immense danger posed machineguns moral depravity choosing weapon substantial increase minimum sentence provided statute support conclusion prohibition element crime sentencing factor likely congress intended remove indictment jury trial protections provided extreme sentencing increase see jones best questionable whether specification facts sufficient increase penalty range let alone years life meant carry none process safeguards elements offense bring defendant benefit perhaps congress concerned parsing distinction elements sentencing factors matter often discussed courts discussing proper allocation functions judge jury instead likely focused deterring crime creating mandatory minimum sentences severity increase case counsels favor finding prohibition element least absent clear congressional indication contrary fifth factor considered castillo legislative history found little help insofar history may relevant however significantly help government amendment legislative record discussed parties accurately observe silent congressional consideration distinction elements sentencing factors brief brief respondent silence neutral however explained tends counsel finding congress made substantive change statutory provision four five factors relied upon castillo point direction years ago amendment affects remaining factor provision language structure requires closer examination castillo interpreted original version though congress point already amended provision applicable principle congress enact substantive changes sub silentio see director revenue mo cobank acb light castillo determination machinegun provision previous version element change inferred bsent clear indication congress change policy grogan garner see also rivers roadway express hen construes statute explaining understanding statute meant continuously since date became law government argues amendment restructuring demonstrates congressional judgment reclassify machinegun provision sentencing factor rather offense element better understanding government acknowledged submission castillo nothing suggest amendments intended change rather simply reorganize clarify treatment firearm type brief closer review amendment confirms three principal differences previous current versions two substantive changes third regarding stylistic structure statute first difference discussed supra amendment changed mandatory sentences mandatory minimum sentences person convicted primary offense using carrying firearm crime violence sentenced imprisonment five years current version sentenced term imprisonment less years second difference amended version includes word possesses addition uses carries principal paragraph adds substantive provisions ii iii provide mandatory minimums brandishing years discharging years firearm provisions new substantive additions text previous version provided bare mandatory minimum offender use carrie firearm without concern firearm used changes direct response decision bailey held word use version must connote mere possession firearm person commits drug offense bailey went observe ad congress intended possession alone trigger liability easily provided using word possess frequently done statutory provisions ibid three years later congress made change added word possesses principal paragraph congress additionally provided mandatory sentences minimum depending whether firearm used sections ii iii provide sentencing enhancements brandishing discharging firearm held enhancements sentencing factors found judge see harris see also dean slip referring brandishing discharge provisions sentencing factors amendment colloquially known bailey fix act cong rec remarks dewine see also dean supra stevens dissenting slip aside shifting mandatory sentences mandatory minimums bailey fix congress left substance statute unchanged neither substantive changes suggests congress meant transform machinegun provision element sentencing factor government stresses third structural difference statute pointing machinegun provision resides separate subsection whereas resided principal paragraph unmistakably lists offense elements structural stylistic change though provide clear indication congress meant alter treatment machineguns offense element see grogan logical explanation restructuring broke lengthy principal paragraph exceeded words even adding bailey fix readable statute step current legislative drafting guidelines advise drafters break lengthy statutory provisions separate subsections read easily see house legislative counsel manual drafting style hlc pp senate office legislative counsel legislative drafting manual pp indicated placing factors separate subsections one way congress might signal treating sentencing factors opposed elements castillo harris rejected view structural consideration predominates even factors point direction ven statute look suggesting numbered subsections sentencing provisions ignore compelling evidence contrary quoting jones instance jones found federal carjacking statute set forth elements multiple offenses despite structure similar statute issue harris careful point unlike case bar castillo factors reinforce interpretation implied statute structure examining amended version structure additional consideration supports interpreting machinegun provision offense element explained brandishing discharge provisions codified ii iii state sentencing factors see harris supra dean supra slip congress intended treat firearm type sentencing factor likely listed firearm types clauses iv subparagraph instead clauses ii subparagraph listing firearm type subparagraph congress set apart sentencing factors ii iii consistent preserving firearm type element separate offense sure arguments favor treating machinegun provision sentencing factor current structure favorable interpretation true castillo particularly machinegun provision positioned sentencing factors provided ii iii see harris supra recidivist provisions ii typically sentencing factors well see points overcome however substantial weight castillo factors principle congress enact significant change without clear indication purpose evident congressional purpose amend statute counteract bailey make statute readable otherwise alter substance statute analysis holding castillo control case machinegun provision ii element offense judgment appeals affirmed ordered petitioner martin arthur burgess writ certiorari appeals first circuit may justice stevens concurring sentencing factor may serve two different functions historical matter term described fact trial judge might rely upon choosing specific sentence within range authorized legislature setting judge broad discretion determining significance factor whether established reliable evidence part national effort enact tougher new type sentencing factor emerged since term used describe facts found judge preponderance evidence effect imposing mandatory limits sentencing judge discretion used element mandatory sentencing scheme sentencing factor functional equivalent element criminal offense circumstances continue believe constitution requires proof beyond reasonable doubt factor first encountered use sentencing factor mandatory minimum context mcmillan pennsylvania examined constitutionality pennsylvania mandatory minimum sentencing act act pennsylvania statute subjected anyone convicted specified felony mandatory minimum sentence trial judge found preponderance evidence defendant visibly possessed firearm commission offense see four prosecutions act trial judges held statute unconstitutional imposed sentences lower mandatory minimum presumably recognized statute treated visible possession firearm functional equivalent offense element appeal pennsylvania consolidated four cases reasoned visible possession firearm mere sentencing factor rather element specified offenses defined legislature protections afforded cases like winship apply bare majority mcmillan endorsed novel use sentencing factor concept five justices concluded prerequisite mandatory sentence sentencing factor rather element offense factor alte maximum penalty crime merely limit sentencing discretion selecting penalty within range already available yet although pennsylvania act mandatory sentence visible possession firearm commission offense exceed statutory maximum otherwise applied crimes conviction positive finding sentencing factor mandated imposition sentence exceeded punishment defendant otherwise received see stevens dissenting majority opinion mcmillan fairly described pathmarking unlike one predecessors winship pointed wrong direction reasons set forth opinions joined four dissenting justices mcmillan continue believe mcmillan incorrectly decided see marshall dissenting stevens dissenting ii mcmillan wrong day decided reasoning substantially undermined eviscerated development sixth amendment jurisprudence recent years understand unconstitutional sixth amendment legislature remove jury assessment facts increase prescribed range penalties criminal defendant exposed apprendi new jersey quoting jones stevens concurring harmonizing apprendi existing sixth amendment jurisprudence explained fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt emphasis added words narrowed holding facts effectively raised ceiling offense consider whether logic holding applied also facts necessary set floor particular sentence justice thomas eloquently explained dissent harris reasoning decision apprendi applies equal force context mandatory minimums quite simply reason distinguish facts trigger punishment excess statutory maximum facts trigger mandatory minimum case vividly illustrates point quite plain world difference sentence sentence judge imposed defendants case sentence mandated machinegun finding mandatory minimums may particularly acute practical effect type statutory scheme contains implied statutory maximum life see ante type case ceiling floor sentence fall furthermore absent positive finding one enumerated factors quite clear judge impose sentence great sentences commanded provision issue case indeed appears subject mandatory minimum defendant ever sentenced sentence anywhere near years offense see brief respondent apprendi signaled end mcmillan signaled unconstitutionality state federal determinate sentencing schemes blakely washington booker thanks unpersuasive attempt distinguish reluctant apprendi dissenter mcmillan survived protest four members see harris breyer concurring part concurring judgment easily distinguish apprendi case terms logic reason agree plurality opinion insofar finds distinction time yet accept apprendi rule appears however reluctant apprendi dissenter may longer therefore full agreement justice thomas separate writing today post harris dissent mcmillan harris overruled least extent authorize judicial factfinding preponderance evidence standard facts expos defendant greater punishment otherwise legally prescribed harris thomas dissenting fact functional equivalent element offense iii view simplest correct solution case us recognize fact mandating imposition sentence severe judge otherwise discretion impose treated element offense unanimity decision today imply mcmillan safe direct challenge foundation petitioner martin arthur burgess writ certiorari appeals first circuit may justice thomas concurring judgment harris held ther fact prior conviction fact increases penalty crime beyond prescribed statutory maximum whether statute calls element sentencing factor submitted jury proved beyond reasonable doubt quoting apprendi new jersey continue believe constitutional requirement applies sentencing facts like machinegun enhancement issue ii alte defendant statutorily mandated sentencing range increasing mandatory minimum sentence regardless whether alter statutory maximum penalty harris thomas dissenting see matter common sense increased mandatory minimum heightens loss liberty represents increased stigma society attaches offense consequently facts trigger increased mandatory minimum sentence warrant constitutional safeguards view makes difference whether sentencing fact vaults defendant mandatory minimum sentence many years ante ly ibid quoting harris supra make difference whether sentencing fact involve characteristics offender haracteristics offense ante direction factors test may tilt one question decides matter sentencing fact either raises floor raises ceiling range punishments defendant exposed definition elemen harris supra thomas dissenting quoting apprendi supra without finding defendant used machinegun penalty range conviction five years life imprisonment finding added penalty range becomes harsher years life imprisonment ii thus expos ing defendant greater punishment otherwise legally prescribed harris thomas dissenting consequence ultimately beside point whether matter statutory interpretation machinegun enhancement sentencing factor constitutional matter establishes harsher range punishments must treated element separate aggravated offense submitted jury proved beyond reasonable doubt ibid reaches conclusion based analysis test see ante concur judgment footnotes enacted mandatory sentence enhancement laws wide variety provisions lowenthal mandatory sentencing laws undermining effectiveness determinate sentencing reform cal rev omitted see also ost current mandatory enhancement laws appear schulhofer rethinking mandatory minimums wake forest rev discussing history federal mandatory minimum sentencing regime see apprendi new jersey mcmillan first time coined term factor refer fact found jury affect sentence imposed judge commonwealth wright winship explicitly held due process clause protects accused conviction except upon proof beyond reasonable doubt every fact necessary constitute crime charged consistent attempt harris distinguish apprendi justice kennedy fine opinion today employs acrobatics distinguish harris present case harris also involved though different subsection reading mandatory minimum brandishing firearm contained sentencing factor easily distinguished nearly identical mandatory minimum possessing machinegun harris said thought apprendi cover mandatory minimums accept apprendi well point guess accept apprendi law time become issue whether mandatory minimums treated like maximums apprendi purposes reset case argument tr oral arg question breyer