U.S. v. O'BRIEN

No. 07-2312.

542 F.3d 921 (2008)

UNITED STATES of America, Appellant, v. Martin O'BRIEN and Arthur Burgess, Defendants, Appellees.

United States Court of Appeals, First Circuit.

Decided September 23, 2008.


Attorney(s) appearing for the Case

James F. Lang, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Timothy Q. Feeley and Robert E. Richardson, Assistant United States Attorneys, were on brief for appellant.

Leslie Feldman-Rumpler, by appointment of the court, for appellee Arthur Burgess.

Timothy P. O'Connell, by appointment of the court, for appellant Martin O'Brien.

Before BOUDIN and DYK, Circuit Judges, and DOMÍNGUEZ, District Judge.


BOUDIN, Circuit Judge.

The question posed by this appeal is whether, under 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 judge as a sentencing matter or by the jury as an element of the crime. Most circuits have said the former; believing ourselves largely constrained by a Supreme Court decision interpreting a prior version of the statute, we reach the opposite result, albeit with...

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