CA1: major, yet squirly opinion on gun-type as an element v. sentencing factor

US v. O'Brien, No. 07-2312.  The First splits with other circuits and find that “[U]nder a statute forbidding the carrying and use of guns in connection with a federal crime, the nature of the weapon is to be found ... by the jury as an element of the crime.”  Specifically, under 18 U.S.C. 924(c), there was a question of whether the knowledge that a gun was modified to be a machine gun was found beyond a reasonable doubt. 

The First says some really amazing things about the post-Booker landscape (which everyone that practices criminal law must read), and notes that Congress rarely explains what is an element and what is a sentencing factor.  Saying that it is reluctantly applying Castillo v. United States, 530 U.S. 120 (2000) it concludes, “firearm type is traditionally an element of the offense--a judgment unaffected by the rephrasing of the statute.”  Legislative history doesn’t show any intent to override Castillo.  So, it gets to use the old version of the statute (rather than any constitutional formulation) to say that the jury should determine this.