CASTILLO et al. v. UNITED STATES

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120 OCTOBER TERM, 1999
Syllabus
CASTILLO et al. v. UNITED STATES
certiorari to the united states court of appeals for
the fifth circuit
No. 99–658. Argued April 24, 2000—Decided June 5, 2000
Petitioners were indicted for, among other things, conspiring to murder
federal officers. At the time of their trial, 18 U. S. C. § 924(c)(1) read in
relevant part: “Whoever, during and in relation to any crime of vio-
lence . . . , uses or carries a firearm, shall, in addition to the punishment
provided for such crime . . . , be sentenced to imprisonment for five
years, . . . and if the firearm is[, e. g.,] a machinegun, . . . to imprisonment
for thirty years.” The jury determined that petitioners had violated
this section, and at sentencing, the judge found that the firearms in-
cluded machineguns and imposed the mandatory 30-year prison sen-
tence. The Fifth Circuit affirmed, concluding that statutory words such
as “machinegun” create sentencing factors, not elements of a separate
crime.
Held: Section 924(c)(1) uses the word “machinegun” (and similar words)
to state an element of a separate, aggravated crime. The statute’s lan-
guage, structure, context, history, and other factors helpful in determin-
ing its objectives lead to this conclusion. First, while the statute’s
literal language, taken alone, appears neutral, its overall structure
strongly favors the “new crime” interpretation. The first part of
§ 924(c)(1)’s opening sentence clearly establishes the elements of the
basic federal offense of using or carrying a gun during a crime of vio-
lence, and Congress placed that element and the word machinegun in a
single sentence, not broken up with dashes or separated into subsec-
tions. That, along with the fact that the next three sentences refer
directly to sentencing, strongly suggests that the entire first sentence
defines crimes. Second, courts have not typically or traditionally used
firearm types (such as “machinegun”) as sentencing factors where the
use or carrying of the firearm is itself the substantive crime. See Jones
v. United States, 526 U. S. 227, 234. Third, to ask a jury, rather than a
judge, to decide whether a defendant used or carried a machinegun
would rarely complicate a trial or risk unfairness. Cf. Almendarez-
Torres v. United States, 523 U. S. 224, 234–235. Fourth, the legislative
history favors interpreting § 924(c) as setting forth elements rather than
sentencing factors. Finally, the length and severity of an added manda-
tory sentence that turns on the presence or absence of a “machinegun”
(or any of the other listed firearm types) weighs in favor of treating

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121 Cite as: 530 U. S. 120 (2000)
Opinion of the Court
such offense-related words as referring to an element in this context.
Such considerations make this a stronger “separate crime” case than
either Jones or Almendarez-Torres—cases in which this Court was
closely divided as to Congress’ likely intent. Pp. 123–131.
179 F. 3d 321, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, Thomas, and Gins-
burg, JJ., joined, and in which Scalia, J., joined except as to point Fourth
of Part II.
Stephen P. Halbrook argued the cause for petitioners.
With him on the briefs were John F. Carroll, Richard G.
Ferguson, Stanley Rentz, and Steven R. Rosen.
Assistant Attorney General Robinson argued the cause
for the United States. With him on the brief were Solicitor
General Waxman, Deputy Solicitor General Dreeben, Ed-
ward C. DuMont, and Joseph C. Wyderko.*
Justice Breyer delivered the opinion of the Court.†
In this case we once again decide whether words in a fed-
eral criminal statute create offense elements (determined by
a jury) or sentencing factors (determined by a judge). See
Jones v. United States, 526 U. S. 227 (1999); Almendarez-
Torres v. United States, 523 U. S. 224 (1998). The statute
in question, 18 U. S. C. § 924(c) (1988 ed., Supp. V), prohibits
the use or carrying of a “firearm” in relation to a crime of
violence, and increases the penalty dramatically when the
weapon used or carried is, for example, a “machinegun.”
We conclude that the statute uses the word “machinegun”
(and similar words) to state an element of a separate offense.
*Briefs of amici curiae urging reversal were filed for Law Enforcement
Alliance of America, Inc., by Richard E. Gardiner; and for the National
Association of Criminal Defense Lawyers et al. by Ann C. McClintock,
Kyle O’Dowd, and Barbara Bergman.
†Justice Scalia joins this opinion except as to point Fourth of Part II.

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122 CASTILLO v. UNITED STATES
Opinion of the Court
I
Petitioners are members of the Branch-Davidian religious
sect and are among those who were involved in a violent
confrontation with federal agents from the Bureau of Alco-
hol, Tobacco, and Firearms near Waco, Texas, in 1993. The
case before us arises out of an indictment alleging that,
among other things, petitioners conspired to murder federal
officers. At the time of petitioners’ trial, the criminal stat-
ute at issue (reprinted in its entirety in the Appendix, infra)
read in relevant part:
“(c)(1) Whoever, during and in relation to any crime
of violence . . . , uses or carries a firearm, shall, in addi-
tion to the punishment provided for such crime of vio-
lence . . . , be sentenced to imprisonment for five years,
and if the firearm is a short-barreled rifle [or a] short-
barreled shotgun to imprisonment for ten years, and if
the firearm is a machinegun, or a destructive device, or
is equipped with a firearm silencer or firearm muffler, to
imprisonment for thirty years.” 18 U. S. C. § 924(c)(1)
(1988 ed., Supp. V).
A jury determined that petitioners had violated this section
by, in the words of the trial judge’s instruction, “knowingly
us[ing] or carr[ying] a firearm during and in relation to” the
commission of a crime of violence. App. 29. At sentencing,
the judge found that the “firearms” at issue included certain
machineguns (many equipped with silencers) and handgre-
nades that the defendants actually or constructively had pos-
sessed. United States v. Branch, Crim. No. W–93–CR–046
(WD Tex., June 21, 1994), reprinted in App. to Pet. for Cert.
119a, 124a–125a. The judge then imposed the statute’s man-
datory 30-year prison sentence. Id., at 134a.
Petitioners appealed. Meanwhile, this Court decided that
the word “use” in § 924(c)(1) requires evidence of more than
“mere possession.” Bailey v. United States, 516 U. S. 137,
143 (1995). The Court of Appeals subsequently held that

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our decision in Bailey necessitated a remand of the case to
determine whether, in Bailey’s stronger sense of “use,” peti-
tioners had used “machineguns and other enhancing weap-
ons.” United States v. Branch, 91 F. 3d 699, 740–741 (CA5
1996). The court also concluded that statutory words such
as “machinegun” create sentencing factors, i. e., factors that
enhance a sentence, not elements of a separate crime. Id.,
at 738–740. Hence, it specified that the jury “was not re-
quired” to determine whether petitioners used or carried
“machineguns” or other enhanced weapons. Id., at 740.
Rather, it wrote that “[s]hould the district court find on
remand that members of the conspiracy actively employed
machineguns, it is free to reimpose the 30-year sentence.”
Id., at 740–741 (emphasis added). On remand, the District
Court resentenced petitioners to 30-year terms of imprison-
ment based on its weapons-related findings. See App. to
Pet. for Cert. 119a. The Court of Appeals affirmed. 179
F. 3d 321 (CA5 1999).
The Federal Courts of Appeals have different views as
to whether the statutory word “machinegun” (and similar
words appearing in the version of 18 U. S. C. § 924(c)(1) here
at issue) refers to a sentencing factor to be assessed by
the trial court or creates a new substantive crime to be
determined by the jury. Compare, e. g., United States v.
Alborola-Rodriguez, 153 F. 3d 1269, 1272 (CA11 1998) (sen-
tencing factor), with United States v. Alerta, 96 F. 3d 1230,
1235 (CA9 1996) (element). We granted certiorari to resolve
the conflict.
II
The question before us is whether Congress intended the
statutory references to particular firearm types in § 924(c)(1)
to define a separate crime or simply to authorize an enhanced
penalty. If the former, the indictment must identify the
firearm type and a jury must find that element proved be-
yond a reasonable doubt. If the latter, the matter need not
be tried before a jury but may be left for the sentencing

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judge to decide. As petitioners note, our decision in Jones
concluded, in a similar situation, that treating facts that lead
to an increase in the maximum sentence as a sentencing fac-
tor would give rise to significant constitutional questions.
See 526 U. S., at 239–252. Here, even apart from the doc-
trine of constitutional doubt, our consideration of § 924(c)(1)’s
language, structure, context, history, and such other factors
as typically help courts determine a statute’s objectives,
leads us to conclude that the relevant words create a sepa-
rate substantive crime.
First, while the statute’s literal language, taken alone,
appears neutral, its overall structure strongly favors the
“new crime” interpretation. The relevant statutory sen-
tence says: “Whoever, during and in relation to any crime
of violence . . . , uses or carries a firearm, shall . . . be sen-
tenced to imprisonment for five years, and if the firearm is
a . . . machinegun, . . . to imprisonment for thirty years.”
§ 924(c)(1). On the one hand, one could read the words “dur-
ing and in relation to a crime of violence” and “uses or car-
ries a firearm” as setting forth two basic elements of the
offense, and the subsequent “machinegun” phrase as merely
increasing a defendant’s sentence in relevant cases. But,
with equal ease, by emphasizing the phrase “if the firearm is
a . . . ,” one can read the language as simply substituting the
word “machinegun” for the initial word “firearm”; thereby
both incorporating by reference the initial phrases that re-
late the basic elements of the crime and creating a different
crime containing one new element, i. e., the use or carrying
of a “machinegun” during and in relation to a crime of
violence.
The statute’s structure clarifies any ambiguity inherent
in its literal language. The first part of the opening sen-
tence clearly and indisputably establishes the elements of
the basic federal offense of using or carrying a gun during
and in relation to a crime of violence. See United States
v. Rodriguez-Moreno, 526 U. S. 275, 280 (1999). Congress

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placed the element “uses or carries a firearm” and the word
“machinegun” in a single sentence, not broken up with
dashes or separated into subsections. Cf. Jones, supra, at
232–233 (noting that the structure of the carjacking stat-
ute—a “principal paragraph” followed by “numbered subsec-
tions”—makes it “look” as though the statute sets forth sen-
tencing factors). The next three sentences of § 924(c)(1)
(which appear after the sentence quoted above (see Appen-
dix, infra)) refer directly to sentencing: the first to recidi-
vism, the second to concurrent sentences, the third to parole.
These structural features strongly suggest that the basic job
of the entire first sentence is the definition of crimes and the
role of the remaining three is the description of factors (such
as recidivism) that ordinarily pertain only to sentencing.
We concede that there are two other structural circum-
stances that suggest a contrary interpretation. The title of
the entirety of § 924 is “Penalties”; and in 1998 Congress re-
enacted § 924(c)(1), separating different parts of the first sen-
tence (and others) into different subsections, see Pub. L. 105–
386, § 1(a)(1), 112 Stat. 3469. In this case, however, the
section’s title cannot help, for Congress already has deter-
mined that at least some portion of § 924, including § 924(c)
itself, creates, not penalty enhancements, but entirely new
crimes. See S. Rep. No. 98–225, pp. 312–314 (1984) (“Sec-
tion 924(c) sets out an offense distinct from the underlying
felony and is not simply a penalty provision”); see also Busic
v. United States, 446 U. S. 398, 404 (1980); Simpson v. United
States, 435 U. S. 6, 10 (1978). The title alone does not tell us
which are which. Nor can a new postenactment statutory
restructuring help us here to determine what Congress in-
tended at the time it enacted the earlier statutory provision
that governs this case. See Almendarez-Torres, 523 U. S.,
at 237 (amendments that, among other things, neither
“declare the meaning of earlier law” nor “seek to clarify an
earlier enacted general term” fail to provide interpretive
guidance).

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Second, we cannot say that courts have typically or tradi-
tionally used firearm types (such as “shotgun” or “machine-
gun”) as sentencing factors, at least not in respect to an un-
derlying “use or carry” crime. See Jones, supra, at 234
(“[S]tatutory drafting occurs against a backdrop . . . of tradi-
tional treatment of certain categories of important facts”);
see also Almendarez-Torres, supra, at 230 (recidivism “is as
typical a sentencing factor as one might imagine”). Tradi-
tional sentencing factors often involve either characteristics
of the offender, such as recidivism, or special features of the
manner in which a basic crime was carried out (e. g., that the
defendant abused a position of trust or brandished a gun).
See 18 U. S. C. § 3553(a)(1) (providing that a sentencing court
“shall” consider “the history and characteristics of the de-
fendant” and “the nature and circumstances of the offense”);
see also, e. g., United States Sentencing Commission, Guide-
lines Manual § 4A1.1 (Nov. 1998) (sentence based in part on
defendant’s criminal history); § 3B1.3 (upward adjustment for
abuse of position of trust); § 5K2.6 (same for use of a danger-
ous instrumentality). Offender characteristics are not here
at issue. And, although one might consider the use of a ma-
chinegun, or for that matter a firearm, as a means (or a man-
ner) in which the offender carried out the more basic under-
lying crime of violence, the underlying crime of violence is
not the basic crime here at issue. Rather, as we have al-
ready mentioned, the use or carrying of a firearm is itself a
separate substantive crime. See Busic, supra, at 404; Simp-
son, supra, at 10.
The Government argues that, conceptually speaking, one
can refer to the use of a machinegun as simply a “metho[d]”
of committing the underlying “firearms offense.” Brief for
United States 23. But the difference between carrying, say,
a pistol and carrying a machinegun (or, to mention another
factor in the same statutory sentence, a “destructive device,”
i. e., a bomb) is great, both in degree and kind. And, more
importantly, that difference concerns the nature of the ele-

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ment lying closest to the heart of the crime at issue. It is
not surprising that numerous gun crimes make substantive
distinctions between weapons such as pistols and machine-
guns. See, e. g., 18 U. S. C. § 922(a)(4) (making it unlawful to
“transport in interstate or foreign commerce” any “destruc-
tive device,” “machine gun,” or similar type of weapon unless
carrier is licensed or authorized, but making no such prohi-
bition for pistols); § 922(b)(4) (prohibiting the unauthorized
sale or delivery of “machine gun[s]” and similar weapons);
§ 922(o)(1) (making it “unlawful for any person to transfer
or possess a machine gun”); § 922(v)(1) (making it illegal “to
manufacture, transfer, or possess a semiautomatic assault
weapon”). And we do not have any indication that legisla-
tures or judges typically have viewed the difference between
using a pistol and using a machinegun as insubstantial. In-
deed, the fact that (a) the statute at issue prescribes a man-
datory penalty for using or carrying a machinegun that is
six times more severe than the punishment for using or car-
rying a mere “firearm,” and (b) at least two Courts of Ap-
peals have interpreted § 924(c)(1) as setting forth a separate
“machinegun” element in relevant cases, see Alerta, 96 F. 3d,
at 1235; Judicial Committee on Model Jury Instructions for
the Eighth Circuit, Manual of Model Criminal Jury Instruc-
tions ¶ 6.18.924C (1997 ed.), in L. Sand, J. Siffert, W. Lough-
lin, & S. Reiss, Modern Federal Jury Instructions: Criminal
Pattern Instructions, p. 8–153 (1999), points to the conclusion
that the difference between the act of using or carrying a
“firearm” and the act of using or carrying a “machinegun” is
both substantive and substantial—a conclusion that supports
a “separate crime” interpretation.
Third, to ask a jury, rather than a judge, to decide whether
a defendant used or carried a machinegun would rarely com-
plicate a trial or risk unfairness. Cf. Almendarez-Torres,
supra, at 234–235 (pointing to potential unfairness of placing
fact of recidivism before jury). As a practical matter, in de-
termining whether a defendant used or carried a “firearm,”

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the jury ordinarily will be asked to assess the particular
weapon at issue as well as the circumstances under which it
was allegedly used. Furthermore, inasmuch as the prosecu-
tion’s case under § 924(c) usually will involve presenting a
certain weapon (or weapons) to the jury and arguing that
the defendant used or carried that weapon during a crime of
violence within the meaning of the statute, the evidence is
unlikely to enable a defendant to respond both (1) “I did not
use or carry any firearm,” and (2) “even if I did, it was a
pistol, not a machinegun.” Hence, a rule of law that makes
it difficult to make both claims at the same time to the same
decisionmaker (the jury) will not often prejudice a defend-
ant’s case.
At the same time, a contrary rule—one that leaves the
machinegun matter to the sentencing judge—might unneces-
sarily produce a conflict between the judge and the jury.
That is because, under our case law interpreting the statute
here at issue, a jury may well have to decide which of several
weapons the defendant actively used, rather than passively
possessed. See Bailey, 516 U. S., at 143. And, in such a
case, the sentencing judge will not necessarily know which
“firearm” supports the jury’s determination. Under these
circumstances, a judge’s later, sentencing-related decision
that the defendant used the machinegun, rather than, say,
the pistol, might conflict with the jury’s belief that he ac-
tively used the pistol, which factual belief underlay its fire-
arm “use” conviction. Cf. Alerta, supra, at 1234–1235 (in
the absence of a specific jury finding regarding the type of
weapon that defendant used, it was possible that the jury did
not find “use” of a machinegun even though the judge im-
posed the 30-year mandatory statutory sentence). There is
no reason to think that Congress would have wanted a
judge’s views to prevail in a case of so direct a factual con-
flict, particularly when the sentencing judge applies a lower
standard of proof and when 25 additional years in prison are
at stake.

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Fourth, the Government argues that the legislative his-
tory of the statute favors interpreting § 924(c) as setting
forth sentencing factors, not elements. It points out that
§ 924(c), as originally enacted, provided a mandatory mini-
mum prison term of at least one year (up to a maximum of
10 years) where a person (1) “use[d] a firearm to commit
any felony,” or (2) “carr[ied] a firearm unlawfully during the
commission of any felony.” Gun Control Act of 1968, § 102,
82 Stat. 1223; see also Omnibus Crime Control Act of 1970,
§ 13, 84 Stat. 1889. In 1984, Congress amended the law,
eliminating the range of permissible penalties, setting a man-
datory prison term of five years, and specifying that that
term was to be added on top of the prison term related to the
underlying “crime of violence,” including statutory sentences
that imposed certain other weapons-related enhancements.
See Comprehensive Crime Control Act of 1984, § 1005(a), 98
Stat. 2138. In 1986, Congress again amended the law by
providing for a 10-year mandatory prison term (20 years for
subsequent offenses) “if the firearm is a machinegun, or is
equipped with a firearm silencer or firearm muffler.” Fire-
arms Owners’ Protection Act, § 104(a)(2), 100 Stat. 456. In
1988, Congress changed the provision to its here-relevant
form. Anti-Drug Abuse Act of 1988, § 6460, 102 Stat. 4373.
The Government finds three features of the history sur-
rounding the enactment of the key 1986 version of the stat-
ute significant. First, the House Report spoke in terms of
a sentence, not an offense. The Report stated, for example,
that the relevant bill would create “a new mandatory prison
term of ten years for using or carrying a machine gun during
and in relation to a crime of violence or a drug trafficking
offense for a first offense, and twenty years for a subsequent
offense.” H. R. Rep. No. 99–495, p. 28 (1986); see also id.,
at 2 (bill “[p]rovides a mandatory prison term of ten years
for using or carrying a machine gun during and in relation
to a crime of violence or a drug trafficking offense, and a

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mandatory twenty years for any subsequent offense”). Sec-
ond, statements of the bill’s sponsors and supporters on the
floor of the House also spoke in terms of sentencing, noting,
for example, that the proposed law “imposes mandatory
prison terms on those [who] would use a machinegun in the
commission of a violent offense.” 132 Cong. Rec. 3809 (1986)
(statement of Rep. Hughes); see also, e. g., id., at 6843 (state-
ment of Rep. Volkmer) (bill “includes stiff mandatory sen-
tences for the use of firearms, including machineguns and
silencers, in relation to violent or drug trafficking crimes”);
id., at 6850 (statement of Rep. Moore) (machinegun clause
“strengthen[s] criminal penalties”); id., at 6856 (statement of
Rep. Wirth) (proposed law “would have many benefits, in-
cluding the expansion of mandatory sentencing to those per-
sons who use a machinegun in the commission of a violent
crime”). Third, and similarly, “any discussion suggesting
the creation of a new offense” was “[n]oticeably absent” from
the legislative record. 91 F. 3d, at 739; Brief for United
States 36.
Insofar as this history may be relevant, however, it does
not significantly help the Government. That is because the
statute’s basic “uses or carries a firearm” provision also dealt
primarily with sentencing, its pre-eminent feature consisting
of the creation of a new mandatory term of imprisonment
additional to that for the underlying crime of violence. Cf.
Bailey, supra, at 142 (“Section 924(c)(1) requires the imposi-
tion of specified penalties”); Smith v. United States, 508 U. S.
223, 227 (1993) (same). In this context, the absence of “sepa-
rate offense” statements means little, and the “mandatory
sentencing” statements to which the Government points
show only that Congress believed that the “machinegun” and
“firearm” provisions would work similarly. Indeed, the leg-
islative statements that discuss a new prison term for the
act of “us[ing] a machine gun,” see, e. g., supra this page,
seemingly describe offense conduct, and, thus, argue against
(not for) the Government’s position.

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Fifth and finally, the length and severity of an added man-
datory sentence that turns on the presence or absence of
a “machinegun” (or any of the other listed firearm types)
weighs in favor of treating such offense-related words as re-
ferring to an element. Thus, if after considering traditional
interpretive factors, we were left genuinely uncertain as to
Congress’ intent in this regard, we would assume a prefer-
ence for traditional jury determination of so important a fac-
tual matter. Cf. Staples v. United States, 511 U. S. 600, 619,
n. 17 (1994) (rule of lenity requires that “ambiguous criminal
statute[s] . . . be construed in favor of the accused”); United
States v. Granderson, 511 U. S. 39, 54 (1994) (similar); United
States v. Bass, 404 U. S. 336, 347 (1971) (same).
These considerations, in our view, make this a stronger
“separate crime” case than either Jones or Almendarez-
Torres—cases in which we were closely divided as to Con-
gress’ likely intent. For the reasons stated, we believe that
Congress intended the firearm type-related words it used in
§ 924(c)(1) to refer to an element of a separate, aggravated
crime. Accordingly, we reverse the contrary determination
of the Court of Appeals and remand the case for proceedings
consistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Ҥ 924. Penalties.
. . . . .
“(c)(1) Whoever, during and in relation to any crime of vio-
lence or drug trafficking crime (including a crime of violence
or drug trafficking crime which provides for an enhanced
punishment if committed by the use of a deadly or dangerous
weapon or device) for which he may be prosecuted in a court
of the United States, uses or carries a firearm, shall, in addi-
tion to the punishment provided for such crime of violence
or drug trafficking crime, be sentenced to imprisonment for

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five years, and if the firearm is a short-barreled rifle [or a]
short-barreled shotgun to imprisonment for ten years, and if
the firearm is a machinegun, or a destructive device, or is
equipped with a firearm silencer or firearm muffler, to im-
prisonment for thirty years. In the case of his second or
subsequent conviction under this subsection, such person
shall be sentenced to imprisonment for twenty years, and if
the firearm is a machinegun, or a destructive device, or is
equipped with a firearm silencer or firearm muffler, to life
imprisonment without release. Notwithstanding any other
provision of law, the court shall not place on probation or
suspend the sentence of any person convicted of a violation
of this subsection, nor shall the term of imprisonment im-
posed under this subsection run concurrently with any other
term of imprisonment including that imposed for the crime
of violence or drug trafficking crime in which the firearm
was used or carried. No person sentenced under this sub-
section shall be eligible for parole during the term of impris-
onment imposed herein.” 18 U. S. C. § 924(c)(1) (1988 ed.,
Supp. V) (footnote omitted).