determination of whether the defendant brandished the gun is an element of the offense rather than a sentencing factor and must be determined by the jury, overruling Harris v. United States, 536 U.S. 545 (2002). As a result, if the defendant is charged with brandishing or discharging the weapon, the jury should be instructed to determine separately whether the evidence establishes beyond a reasonable doubt that the defendant used the firearm in the manner alleged and should be given a special interrogatory to guide the determination. Similarly, Section 924(c) provides for higher mandatory penalties where certain types of weapons, such as machine guns, are involved. In 130 S. Ct. 2169 United States v. O'Brien, (2010), the Supreme Court held that this provision defines an element of the offense rather than a sentencing factor. The court should therefore provide instruction and special interrogatories regarding those provisions when they are included in the charges. (Revised 2017)
determination of whether the defendant brandished the gun is an element of the offense rather than a sentencing factor and must be determined by the jury, overruling Harris v. United States, 536 U.S. 545 (2002). As a result, if the defendant is charged with brandishing or discharging the weapon, the jury should be instructed to determine separately whether the evidence establishes beyond a reasonable doubt that the defendant used the firearm in the manner alleged and should be given a special interrogatory to guide the determination. Similarly, Section 924(c) provides for higher mandatory penalties where certain types of weapons, such as machine guns, are involved. In United States v. O'Brien, 130 S. Ct. 2169 (2010), the Supreme Court held that this provision defines an element of the offense rather than a sentencing factor. The court should therefore provide instruction and special interrogatories regarding those provisions when they are included in the charges. (Revised 2017)
2017%20Chap%206%20FirearmOffenses%20revisions%20final.docx