Decision affirmed by Supreme
Court opinion filed 6/24/02
Cert granted by Supreme Court
order filed 12/10/01
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4154

WILLIAM JOSEPH HARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-191)

Argued: January 25, 2001

Decided: March 20, 2001

Before MICHAEL and MOTZ, Circuit Judges, and
Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Michael and Judge Payne joined.

_________________________________________________________________

COUNSEL

ARGUED: William Carlton Ingram, Jr., First Assistant Federal Pub-
lic Defender, Greensboro, North Carolina, for Appellant. Steven Hale
Levin, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public
Defender, Greensboro, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After convicting William Harris of carrying a firearm in relation to
drug trafficking, the district court found that he had "brandished" the
firearm and sentenced him in accordance with 18 U.S.C.
§ 924(c)(1)(A)(ii) (Supp. IV 1998). Harris appeals, contending the
court erred by increasing his sentence for brandishing the firearm,
which he maintains constitutes an element of the offense that must be
charged and proved beyond a reasonable doubt. Examination of the
statutory language, structure, context, and history of § 924(c)(1)(A)
leads us to conclude that "brandished" is a sentencing factor, not an
element of the offense. Accordingly, we affirm.

I.

Harris owns a pawn shop in North Carolina. On April 29, 1999, an
undercover law enforcement agent accompanied a confidential infor-
mant to Harris's shop. After talking with Harris, the agent purchased
a small quantity of marijuana and returned the next day to purchase
an additional 114 grams of marijuana.

During both transactions, Harris carried a 9mm Taurus handgun in
an unconcealed hip holster. According to the agent's testimony, Har-
ris, at one point, removed his firearm from its holster and explained
that it "was an outlawed firearm because it had a high-capacity maga-
zine," and further stated that his homemade bullets could pierce a
police officer's armored jacket.

Harris was subsequently arrested and indicted on two counts of dis-
tribution of marijuana, 21 U.S.C. § 841(a)(1) & (b)(1)(D) (1994 &
Supp. IV 1998), and two counts of carrying a firearm"in relation to"
drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A). The govern-
ment dismissed one distribution count and one firearm count. Harris

                   2
pled guilty to the other distribution count, but proceeded to a bench
trial on the remaining § 924(c) count of carrying a firearm in relation
to the April 30 drug trafficking incident.

At trial, the district court found that Harris carried the handgun in
relation to a drug trafficking offense and convicted Harris of violating
§ 924(c)(1)(A). At Harris's sentencing hearing, the judge determined
that he had "brandished" the gun within the meaning of
§ 924(c)(1)(A)(ii) & (c)(4) and consequently sentenced Harris to the
mandatory minimum of seven years imprisonment prescribed by the
statute. Harris now appeals.

II.

Section 924(c)(1)(A) provides in pertinent part:

        [A]ny person who, during and in relation to any crime of
        violence or drug trafficking crime . . . uses or carries a fire-
        arm, or who, in furtherance of any such crime, possesses a
        firearm, shall, in addition to the punishment provided for
        such crime of violence or drug trafficking crime -

        (i) be sentenced to a term of imprisonment of not less
        than 5 years;

        (ii) if the firearm is brandished, be sentenced to a term of
        imprisonment of not less than 7 years; and

        (iii) if the firearm is discharged, be sentenced to a term
        of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). Harris principally contends that the "bran-
dished" clause, 18 U.S.C. § 924(c)(1)(A)(ii), does not set forth a sen-
tencing factor, but rather an element of the offense that must be
specifically charged in the indictment and proved beyond a reason-
able doubt at trial.

"Whether a fact is an offense element or a sentencing consideration
is a matter of statutory interpretation." United States v. Davis, 184

                   3
F.3d 366, 368 (4th Cir. 1999).1
                              1 Thus, we look to the statute's lan-
guage, structure, context, and history in determining whether "bran-
dished" is a sentencing factor. See Castillo v. United States, 120 S. Ct.
2090, 2092 (2000).

Most significant in determining whether the brandishing clause sets
forth a sentencing factor or an element of the crime is the statutory
language itself. Section 924(c)(1)(A)(ii) provides for no statutory
maximum sentence. Instead the statute "operates solely to limit the
sentencing court's discretion in selecting a penalty within the range
already available to it without the special finding of [brandishing] a
firearm." McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986). In
other words, the sentencing court's finding that Harris "brandished"
a firearm under subsection (ii) triggered a mandatory minimum sen-
tence, but did not "increase[ ] the penalty . . . beyond the prescribed
statutory maximum." Apprendi v. New Jersey , 120 S. Ct. 2348, 2362-
63 (2000).

In McMillan, the Supreme Court upheld Pennsylvania's Mandatory
Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982), which
provided a mandatory minimum sentence of five years upon a finding
that a defendant "visibly possessed a firearm" during the commission
of certain felonies. McMillan, 477 U.S. at 80-81. The Court rejected
the contention that the visible possession provision was an element of
the offense because it did not "expose[ ] [the defendants] to greater
or additional punishment." Id. at 88. The Court explained that the
challenged statute "neither alters the maximum penalty for the crime
committed nor creates a separate offense calling for a separate penalty
. . . . The statute gives no impression of having been tailored to permit
the visible possession finding to be a tail which wags the dog of the
substantive offense." Id. at 87-88. Consequently, the McMillan Court
held that the mandatory minimum provision was simply a permissible
restriction on the sentencing judge's discretion. Id. at 88. See also
_________________________________________________________________
1 Of course, after the Supreme Court's decision in Apprendi v. New Jer-
sey, 120 S. Ct. 2348 (2000), "any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt," id. at 2362-63 (emphasis
added), thus obviating the need for "statutory interpretation" in those
instances.

                   4
Williams v. New York, 337 U.S. 241, 246 (1949) ("[A] sentencing
judge [can] exercise a wide discretion in the sources and types of evi-
dence used to assist him in determining the kind and extent of punish-
ment to be imposed within limits fixed by law .") (emphasis added).

Because, like the statute at issue in McMillan , § 924(c)(1)(A) con-
tains no maximum penalty, the government's failure to charge and
prove brandishing beyond a reasonable doubt did not expose Harris
to a punishment greater than he could have received had the sentenc-
ing judge not found that Harris "brandished" a firearm. Even without
the "brandished" finding, Harris could have received a seven-year
sentence. In fact, the sentencing judge noted that if we reversed his
brandishing ruling, he might nonetheless exercise his discretion and
apply a seven-year prison term upon re-sentencing.

Harris recognizes that the instant case involves a mandatory mini-
mum provision, but nonetheless asserts that the Court's decision in
Apprendi governs. He agrees that although Apprendi directly
addressed an increase in a statutory maximum, it"also should apply
to a statutory fact which increases the mandatory minimum sentence."
Reply Brief at 2. But, by its own terms, Apprendi forecloses this argu-
ment; there, the Supreme Court explained:

        We do not overrule McMillan. We limit its holding to cases
        that do not involve the imposition of a sentence more severe
        than the statutory maximum for the offense established by
        the jury's verdict -- a limitation identified in the McMillan
        opinion itself.

Apprendi, 120 S. Ct. at 2361 n.13. In essence, Harris asks this court
to do what the Supreme Court has explicitly refused to do. While the
Supreme Court may certainly overrule McMillan in the future and
apply Apprendi to any factor that increases the minimum sentence or
"range" of punishment, rather than only the maximum punishment,
see Jones, 526 U.S. 227, 252-53 (1999) (Stevens, J.,concurring)
(opining that McMillan should be reconsidered), that is not our role.
See West v. Anne Arundel County, 137 F.3d 752, 760 (4th Cir. 1998)

                  5
("Lower federal courts have repeatedly been warned about the impro-
priety of preemptively overturning Supreme Court precedent.").2
                                                              2

Indeed, this court and others have already held that Apprendi "only
applies to sentences `beyond the prescribed statutory maximum.'"
United States v. Pratt, No. 99-4424, 2001 WL 101457 (4th Cir. Feb.
7, 2001). See also United States v. Williams, 238 F.3d 871, 877 (7th
Cir. 2001) ("[I]f a defendant is sentenced under the statutory maxi-
mum, his sentence is not violative of Apprendi , regardless of a district
court's consideration of a mandatory minimum sentence."); United
States v. Carlson, 217 F.3d 986, 987 (8th Cir. 2000) (holding that
§ 924(c)(1)(A)(ii) is a mandatory minimum sentencing factor and not
affected by Apprendi); United States v. Pounds, 230 F.3d 1317, 1319
(11th Cir. 2000) (same). But cf. United States v. Bandy, 2001 WL
69052, at *4-5 (6th Cir. Jan. 30, 2001) (relying on Castillo and find-
ing that the "short-barreled shotgun" provision of 18 U.S.C.
§ 924(c)(1)(B)(i), which triggers a longer minimum sentence, is an
element of the offense).

Moreover, since the application of § 924(c)(1)(A)(ii) did not
expose Harris to a penalty greater than that already allowed under the
statute, we are not faced with the concerns at issue in Castillo, or
Jones, on which Harris principally relies. Unlike the instant case, both
Jones and Castillo presented situations in which the finding of a cer-
tain statutory fact exposed the defendant to a term of imprisonment
more severe than would have been permitted without the finding of
that fact. See Castillo, 120 S. Ct. at 2092 (maximum sentence raised
by twenty-five years if the crime was committed with a "ma-
chinegun"); Jones, 526 U.S. at 230-31 (sentence increased by ten
years upon finding that the crime resulted in "serious bodily injury").
_________________________________________________________________
2 Harris may be correct that absent the district court's finding that he
"brandished" a firearm, it is "unlikely," under the Sentencing Guidelines,
that he would have received more than five years. See U.S.S.G.
§ 2K2.4(a)(2). But, that fact does not assist him because "the relevant
`maximum' under Apprendi is found on the face of the statute rather than
in the Sentencing Guidelines." United States v. Kinter, 235 F.3d 192, 201
(4th Cir. 2000). Thus, although the finding may have increased his sen-
tence under the Sentencing Guidelines, it still did not increase it beyond
the "prescribed statutory maximum." Apprendi, 120 S. Ct. at 2363
(emphasis added).

                   6
Furthermore, other factors also support the conclusion that "bran-
dished" is not an offense element. First, the structure of the statute
suggests this. Congress set the first paragraph of§ 924(c)(1)(A) apart
from the three subsections below, indicating that this first paragraph
contains the elements of the crime -- using or carrying a firearm in
relation to or possessing a firearm in furtherance of drug trafficking
-- while the subsections list sentencing factors limiting the judge's
discretion when sentencing those convicted of the crime. See Castillo,
120 S. Ct. at 2093; Carlson, 217 F.3d at 987; Pounds, 230 F.3d at
1319. We acknowledge that § 924(c)(1)(A) is similar in structure to
the carjacking statute at issue in Jones, but even the Jones Court rec-
ognized that a "principal paragraph" followed by "numbered subsec-
tions" has a "look" suggesting that the subsections are sentencing
factors. Jones, 526 U.S. at 232.

Despite the statute's "look," the Court in Jones determined that the
subsection at issue there stated a separate offense element; in part
because it provided for "steeply higher penalties" and more impor-
tantly because Congress had previously treated "serious bodily injury"
as a criminal offense element. Id., at 233, 235-36. The Jones Court
cited no less than three federal statutes that "unmistakably identified
serious bodily injury as an offense element." Id. at 235 (citing 10
U.S.C. § 928(b)(2); 18 U.S.C. § 37(a)(1); and 18 U.S.C.
§ 1091(a)(2)). Similarly, the statute at issue in Castillo provided
steeply higher penalties and involved a factor that Congress had tradi-
tionally treated as a separate element of a criminal offense. Castillo,
120 S. Ct. at 2094, 2096. And again, the Supreme Court cited statutes
in which Congress treated "machinegun" as a substantive element of
a criminal offense. Id. at 2094.

In contrast, Harris has cited no federal statute in which Congress
has treated "brandished" as a separate offense or element of an offense.3 3
_________________________________________________________________
3 Harris does cite W. Va. Code§ 61-7-11 (West 2000) and VI. Code
Ann. Tit. 14 § 621 (1999), in which brandishing a weapon is an element
of a crime. Brief of Appellant at 21. Although the Supreme Court in
Jones acknowledged that "[s]tate practice bolster[ed]" the Court's hold-
ing, it also recognized that state practice is not"direct authority for read-
ing the federal carjacking statute." Jones , 526 U.S. at 236-37. Without
evidence that Congress has treated brandishing as an offense element in
other federal statutes, we do not find the fact that a state and a territory
have done so to be sufficient evidence from which to glean congressional
intent in this case.

                  7
Nor have we located any such federal statute. Indeed, "brandish" sel-
dom appears in the United States Code, but instead arises with great
frequency in the United States Sentencing Guidelines as the basis for
a sentence enhancement. See, e.g., U.S.S.G.§ 2A2.2(b)(2)(c),
§ 2B3.1(b)(2)(C), § 2E2.1(b)(1)(c),§ 2L1.1(b)(4)(c).4
                                                    4

Although inconclusive, the legislative history of the 1998 amend-
ment to § 924(c) also hints that Congress has traditionally viewed
"brandished" not as an integral element of the offense, but more as a
"manner in which a basic crime was carried out," thus having the
characteristic of a "[t]raditional sentencing factor[ ]." Castillo, 120 S.
Ct. at 2094. The original proposed amendment, as passed by the
House, read:

        A person who, during and in relation to any crime of vio-
        lence or drug trafficking crime . . . for which the person may
        be prosecuted in a court of the United States --

        (A) possesses a firearm in furtherance of the crime, shall,
        in addition to the sentence imposed for the crime of violence
        or drug trafficking crime, be sentenced to imprisonment for
        10 years;

        (B) brandishes a firearm, shall, in addition to the sentence
        imposed for the crime of violence or drug trafficking crime,
        be sentenced to imprisonment for 15 years; or

        (C) discharges a firearm, shall, in addition to the sentence
        imposed for the crime of violence or drug trafficking crime,
        be sentenced to imprisonment for 20 years . . . .
_________________________________________________________________
4 That "brandished" appears in the Sentencing Guidelines is not by
itself proof that it is a sentencing factor. "Serious bodily injury," which
the Jones Court found to be an element of the carjacking offense, often
appears in the Sentencing Guidelines as the basis for a sentencing
enhancement. See, e.g., U.S.S.G. § 2A4.1(b)(2)(B) (increasing kidnaping
sentence by two levels if victim sustained "serious bodily injury"). How-
ever, the fact that "brandish" is a frequent sentencing enhancement cou-
pled with the fact that we have found no federal statute treating it as an
offense element, suggests that Congress has not traditionally treated it as
such.

                   8
H.R. 424, 105th Cong. (2d Sess. 1998); 144 Cong. Rec. H530-31,
H535 (daily ed. Feb. 24, 1998) (passing the bill in the House).

In the final bill, however, Congress decided not to include bran-
dishing or discharging as actus reus elements of the offenses pro-
scribed in the initial principal paragraph.5
                                           5 While we are careful not to
read too much into this alteration, the fact that"brandished" and "dis-
charged" remained in subordinate subsections, while "possessed"
ascended to accompany the main criminal acts from the previous bill,
cannot be completely overlooked. In fact, the Supreme Court in Cas-
tillo recognized that Congress's 1998 amendment of § 924(c), sepa-
rating certain statutory factors into numbered subsections, "sug-
gest[ed] a contrary interpretation" from the one it ultimately adopted.
Castillo, 120 S. Ct. at 2093. However, the Court refused to consider
these 1998 changes, because it was addressing the 1993 version of
§ 924(c). Id. We, however, are interpreting § 924(c) as amended in
1998 and so must take into account those changes acknowledged but
not considered in Castillo.

The Castillo decision is also helpful in that the Court specifically
suggested that "brandished" is a sentencing factor, stating that
"[t]raditional sentencing factors often involve . . . 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)." Castillo,
120 S. Ct. at 2094 (emphasis added). The fact that the Supreme Court
used "brandished a gun" as an example of a sentencing factor gives
us an additional measure of confidence that our decision falls within
the Supreme Court's recent jurisprudence on the issue.

Finally, § 924(c)(1)(A) also differs from the statutes at issue in
Jones and Castillo in that the severity of the separate harms in those
statutes were punctuated by the "steeply higher penalties" assessed
_________________________________________________________________
5 The previous version of § 924(c)(1) applied to only one who "uses"
and "carries" a firearm in relation to a drug trafficking or violent crime.
There was no provision for possessing. The Supreme Court, in Bailey v.
United States, 516 U.S. 137 (1995), held that"use" meant active use and
mere possession was insufficient for conviction. Id. at 143-44. In
response, Congress sought to amend § 924(c) to criminalize possession
in furtherance of a drug trafficking crime. See 144 Cong. Rec. S12670-
71 (daily ed. Oct. 16, 1998) (statement of Sen. DeWine); 144 Cong. Rec.
H531 (daily ed. Feb. 24, 1998) (statement of Rep. McCollum).

                   9
when the elements at issue were found. Jones, 526 U.S. at 233 (noting
that the maximum carjacking penalties were increased by ten years
for serious bodily harm); Castillo, 120 S. Ct. at 2095 (noting that the
maximum penalty for carrying a firearm increased from five to thirty
years when the firearm was a machinegun). In comparison, the man-
datory minimum for brandishing a firearm as opposed to simply car-
rying a firearm increases by only two years. At oral argument, Harris
maintained that the two-year enhancement increased the penalty by
forty percent, and is thus a "steeply higher penalty." This argument
is misleading because Harris's available penalty did not increase at
all upon the "brandished" finding -- he could have received seven
years even without that finding. In addition, the claimed forty percent
increase is less than the 500 percent increase in Castillo or even the
sixty-six percent increase in Jones. And regardless of the percentages,
a two-year sentence enhancement is not as "steep" as an additional ten
or twenty-five years in prison.6
                               6

For the foregoing reasons, we hold that the "brandished" clause of
18 U.S.C. § 924(c)(1)(A)(ii) sets forth a sentencing factor that need
not be charged in the indictment. Harris's evidentiary arguments are
totally without merit.7   7 We, therefore, affirm Harris's conviction and
sentence.

AFFIRMED
_________________________________________________________________
6 Indeed, percentages can be misleading; for instance, a penalty
enhancement from one to three days imprisonment would be a 200 per-
cent increase, but we would be hard-pressed to call such an increase
"steep."
7 Harris asserts that the government offered insufficient evidence to
prove that he carried his gun "in relation to" drug trafficking. On the
facts here, a reasonable finder of fact could certainly conclude that he
carried his gun in relation to his drug sales. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). Harris also claims that the evidence was insuffi-
cient to support the sentencing court's finding that he "brandished" his
gun. Given the evidence that Harris carried and displayed the firearm in
the pawn shop, carried it to the drug sales, explained that it had a high-
capacity magazine and could pierce an officer's armored jacket, and that
it was visible in his holster during the drug sales, we can hardly conclude
that the district court clearly erred in finding that he "brandished" it as
defined by 18 U.S.C. § 924(c)(4).

                   10
