 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 30, 2012              Decided August 3, 2012

                       No. 06-3070

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

         BRYAN BURWELL, ALSO KNOWN AS BUSH,
                    APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                     (No. 04cr00355-05)


            On Petition For Rehearing En Banc


    Robert S. Becker, appointed by the court, argued the
cause and filed the briefs for appellant.

     A.J. Kramer, Federal Public Defender, and Rosanna M.
Taormina, Assistant Federal Public Defender, were on the
brief of the Federal Public Defender as amicus curiae in
support of appellant.
                              2
    Paul F. Enzinna and Barry J. Pollack were on the brief of
amicus curiae National Association of Criminal Defense
Lawyers, Inc. in support of appellant.

    Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Daniel
P. Butler, and Stephanie C. Brenowitz, Assistant U.S.
Attorneys.

   Before: SENTELLE, Chief Judge, and HENDERSON,
ROGERS, TATEL, GARLAND, BROWN, GRIFFITH and
KAVANAUGH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge BROWN.

    Concurring opinion filed by Chief Judge SENTELLE.

    Concurring opinion filed by Circuit Judge HENDERSON.

    Dissenting opinion filed by Circuit Judge ROGERS.

    Dissenting opinion filed by Circuit Judge KAVANAUGH,
    with whom Circuit Judge TATEL joins.

     BROWN, Circuit Judge: Appellant Bryan Burwell was
part of a crew of bank robbers that engaged in a violent crime
spree across the D.C. Metro area. The crew employed
decidedly old-school tactics, including subduing bystanders
by brandishing AK-47s, pistol whipping a victim, and
spraying a pursuing police car with bullets. After a lengthy
jury trial and an appeal before a panel of this Court, only a
single legal question remains: whether 18 U.S.C.
§ 924(c)(1)(B)(ii), which imposes a mandatory thirty-year
sentence for any person who carries a machinegun while
                                3
committing a crime of violence, requires the government to
prove that the defendant knew the weapon he was carrying
was capable of firing automatically. To resolve this question,
we reexamine one of our longstanding precedents, United
States v. Harris, 959 F.2d 246, 257–59 (D.C. Cir. 1992), in
light of intervening decisions of the Supreme Court.



                                I

     This appeal, which focuses on a narrow question of law,
requires only an abbreviated version of the essential
underlying facts. Between 2003 and 2004, a gang of robbers
committed six armed bank heists; Burwell, who joined the
crew in the middle of the crime spree, participated in two.
Before Burwell joined up, Noureddine Chtaini, the nominal
leader, along with Miguel Morrow and Omar Holmes, bought
four fully automatic AK-47s. 1 The crew carried these
weapons in all their subsequent bank robberies, and on one
occasion, “sprayed” bullets at a pursuing police car.
Following this particular robbery, Burwell said he wanted to
start robbing banks with the crew. He carried an AK-47 in
both of the robberies in which he participated, though there is
no evidence he fired any of the weapons.

    A grand jury issued an indictment charging Burwell and
his co-defendants with, inter alia, RICO conspiracy and

1
  Although the four guns functioned similarly, each had a unique
appearance. One of the guns was chrome and had a folding stock
(the “AK-chrome”), one had two handles and no stock (the “AK-
two handles”), one had a real wood grip in the front and an under-
folding stock, to which Chtaini fastened a strap (the “AK-strap”),
and one had a spring-loaded bayonet under the barrel (the “AK-
bayonet”).
                              4
armed bank robbery conspiracy. They also charged Burwell
with one count of armed bank robbery and one count of using
or carrying a firearm during a violent crime. A jury returned
verdicts as to all defendants on July 15, 2005, convicting each
of RICO conspiracy and conspiracy to commit armed bank
robbery. In addition, it convicted Burwell of armed robbery
and of using or carrying a machinegun in relation to a violent
crime. The district court sentenced Burwell to concurrent
prison terms of 135 months each for RICO conspiracy and
armed bank robbery, 60 months for conspiracy to commit
armed bank robbery, and a consecutive term of 360 months
for using or carrying a machinegun during the robbery.

     On appeal, Burwell argued the government presented
insufficient evidence to support his conviction under 18
U.S.C. § 924(c)(1)(B)(ii) because the government failed to
show he knew the AK-47 he carried was capable of firing
automatically. All four weapons could function in both semi-
automatic and fully automatic modes through the use of a
selector switch—a lever on the side of the weapon that slides
up and down to allow the user to choose between safe, semi-
automatic, and fully automatic modes. But at trial, both
parties’ firearms experts agreed that the weapons contained no
clear markings indicating that they could be put into
automatic firing mode. The defense’s expert, William Welch,
testified that “[t]here’s some letters here [near the selector
switch] that I cannot identify because they’re probably written
in a foreign language, but they’re only letters, not words.”
Welch determined that the AK-47 could fire in automatic
mode by noticing that the selector switch had three positions,
which he “was kind of looking for … anyway,” and by
disassembling the gun.

    Section 924(c)(1)(A) provides for a mandatory
consecutive sentence of at least five years for any person who
                               5
uses or carries a firearm “during and in relation to” a crime of
violence or drug trafficking crime, or for any person who
possesses a firearm “in furtherance of” such crime. The
mandatory sentence skyrockets to thirty years, however, if the
firearm involved was a machinegun.               18 U.S.C. §
924(c)(1)(B)(ii). A machinegun is defined as “a gun capable
of firing automatically, that is, of firing several bullets with
one pull on the trigger.” Harris, 959 F.2d at 257. The court
upheld the jury verdict and sentence, finding that this Court’s
decision in Harris dictated affirmance.

     In Harris, the Court concluded Congress “inten[ded] to
apply strict liability” to the machinegun provision of § 924(c).
959 F.2d at 258. The Court began its analysis by recognizing
the general presumption in favor of a mens rea requirement in
criminal cases, but reasoned that § 924(c)(1) already requires
a defendant to have “intentionally” used a firearm in
committing a predicate crime, and to have done so with
“knowledge that the objects used to facilitate the crime are
‘firearms.’” Id. at 258–59. Thus, the statute does require
“[d]eliberate culpable conduct” as to “the essential elements
of the crime . . . before the issue of sentence enhancement for
use of a machine gun arises.” Id. at 259. The structure of the
statute, the Court found, supported the inference that
Congress intended no additional mens rea requirement to
apply to the machinegun element.

     Burwell, aided by amici curiae National Association of
Criminal Defense Lawyers (“NACDL”) and the Federal
Public Defender (“FPD”), sought rehearing en banc, claiming
the Supreme Court’s decision in United States v. O’Brien, 130
S. Ct. 2169 (2010)—which held that § 924(c)(1)(B)(ii) is an
element of the offense, rather than a sentencing factor—
implicitly overruled Harris. Burwell also claims contrary
decisions of other circuits support abandonment of Harris.
                               6
Harris’s interpretation of § 924(c) is, he contends,
fundamentally flawed as a matter of law. We disagree on all
counts, and conclude the high burden imposed on any party
who urges this Court to depart from the principle of stare
decisis has not been satisfied.



                               II

     By claiming § 924(c)(1)(B)(ii) contains an additional,
implicit mens rea requirement, Burwell asks us to set aside a
circuit precedent that has governed our interpretation for
twenty years.

     “[T]he doctrine of stare decisis is of fundamental
importance to the rule of law.” Welch v. Texas Dep’t of
Highways & Pub. Transp., 483 U.S. 468, 494 (1987). “[A]ny
departure from the doctrine . . . demands special
justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984).
The burden borne by a party urging the disavowal of an
established precedent is greater “where the Court is asked to
overrule a point of statutory construction . . . for here, unlike
in the context of constitutional interpretation, . . . Congress
remains free to alter what we have done.” Patterson v.
McLean Credit Union, 491 U.S. 164, 172–73 (1989).

     Overturning a statutory precedent is justified under a very
narrow range of circumstances, such as cases in which an
“intervening development of the law, through either the
growth of judicial doctrine or further action taken by
Congress,” necessitates a shift in the Court’s position. Id. at
173. Precedents may also be abandoned where an intervening
development “ha[s] removed or weakened the conceptual
underpinnings from the prior decision, or where the later law
                               7
has rendered the decision irreconcilable with competing legal
doctrines or policies.” Id. The Court has also overruled prior
cases where the precedent “may be a positive detriment to
coherence and consistency in the law, either because of
inherent confusion created by an unworkable decision, or
because the decision poses a direct obstacle to the realization
of important objectives embodied in other laws.” Id.

    A court of appeals sitting en banc may also reexamine its
own interpretation of a statute “if it finds that other circuits
have persuasively argued a contrary construction.” Critical
Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C. Cir.
1992) (en banc). Or an en banc court may set aside its own
precedent “if, on reexamination of an earlier decision, it
decides that the panel’s holding on an important question of
law was fundamentally flawed.” Id.

           a. Effect of      Subsequent     Supreme      Court
              Decisions

     Burwell and NACDL rely on the Supreme Court’s recent
decision in United States v. O’Brien, which held that
possession of a machinegun “[was] an element to be proved to
the jury beyond a reasonable doubt,” not a “sentencing factor”
to be proved to the judge by a preponderance of the evidence
at sentencing. 130 S. Ct. at 1272. According to NACDL, the
Harris Court justified departing from the traditional
presumption in favor of mens rea by finding the machinegun
provision is not an “essential element of the crime” but rather
a “sentence enhancement.” See Harris, 959 F.2d at 258–59.
If the machinegun provision is an essential element of the
crime, they argue, it must also be afforded the presumption of
a mens rea requirement.
                               8
     It is far from clear, however, that the classification of
§ 924(c)(1)(B)(ii) as a “sentencing factor” was one of the
“conceptual underpinnings” of Harris. Much like the
Supreme Court’s recent decision in Flores-Figueroa, 129 S.
Ct. 1886 (2009), Harris’s holding turned on the Court’s
interpretation of § 924(c) “using the usual tools of statutory
analysis” in an attempt to determine congressional intent. 959
F.2d at 258. Specifically, the Court focused on the structure
of the statute, i.e. the separation between the elements of the
underlying crime and the machinegun provision, and its
judgment that Congress would not have required an
additional showing of mens rea beyond what the government
must prove with respect to the predicate crime and the use of
a firearm. See id. at 258. The Court also found other circuits’
conclusions that no showing of additional mens rea was
required for “aggravating elements” of similar statutes
persuasive.     See id.      Nothing turned on whether the
machinegun provision was considered an element of the
offense or a sentencing factor. Moreover, the Harris Court
referred to the machinegun provision as both an “element of
the offense,” id. at 258, and a “sentence enhancement,” id. at
259, making it clear that its holding did not depend on which
description more accurately characterized the machinegun
provision. It is thus unclear how much, if at all, the rationale
of Harris relies upon the Court’s apparent assumption that §
924(c)(1)(B)(ii) was a “sentence enhancement” rather than an
element of the offense.

     But Burwell makes an even broader claim, arguing that
O’Brien’s holding implicitly overruled Harris because
offense elements require proof of mens rea while sentencing
factors may not. While Burwell can marshal some support for
this argument from expansive dicta in decisions from the
Supreme Court and this Circuit, close reading of these cases
reveals that his argument is overstated.
                              9

     First, Burwell’s suggestion that the label “element of the
offense,” as opposed to “sentencing factor,” is determinative
of the mens rea requirement is misguided. Had the Supreme
Court viewed that distinction as dispositive, it would not have
explicitly declined to decide whether “a defendant who uses,
carries, or possesses a firearm must be aware of the weapon’s
characteristics” in O’Brien. 130 S. Ct. at 2173. At the very
least, the Court’s reservation suggests there is more to the
analysis than a simple equation.

     Second, before mechanically applying a presumption—
particularly a presumption as sweeping as the one put forward
here—it seems prudent to revisit first principles. The
Supreme Court developed the presumption in favor of mens
rea for one particular reason: to avoid criminalizing otherwise
lawful conduct. One of the earliest cases to adopt a
presumption in favor of mens rea was United States v. U.S.
Gypsum Co., 438 U.S. 422 (1978), in which the Court
evaluated whether intent was an element of a criminal
antitrust offense. Relying primarily on Morissette v. United
States, 342 U.S. 246, 250 (1952), the Court noted that its
precedents “can be fairly read as establishing, at least with
regard to crimes having their origin in the common law, an
interpretative presumption that mens rea is required.” 438
U.S. at 437. The Court further noted that strict liability
offenses, while “not unknown to the criminal law” and not
invariably violative of the Constitution, are “generally
disfavored.” Id. at 437–38. Up to this point, the case appears
to support Burwell’s position.

    Further analysis, however, reveals that the Court inferred
a mens rea requirement because “the behavior proscribed by
the [Sherman] Act is often difficult to distinguish from the
gray zone of socially acceptable and economically justifiable
                               10
business conduct.” Id. at 440–41. Not requiring the
government to prove criminal intent in such a situation would
risk using criminal sanctions simply to “regulate business
practices,” a result not intended by Congress. Id. at 442. In
other words, the Court inferred a mens rea requirement
because criminal intent was necessary to differentiate a
violation of the Act from otherwise lawful business conduct.

     The Court applied the same principle in Staples v. United
States, when it implied a mens rea requirement in 26 U.S.C.
§ 5861(d), a provision that made it “unlawful for any person
… to receive or possess a firearm which is not [federally]
registered.” 511 U.S. 600, 605 (1994). The Court held the
statute did require the Government to prove mens rea because
a contrary ruling would “criminalize a broad range of
apparently innocent conduct.” Id. at 610. In closing, the
Court favorably cited a different section of our Harris
opinion, in which we held that weapon-specific knowledge is
required in a prosecution under § 5861(d), reasoning that “if
Congress had intended to make outlaws of gun owners who
were wholly ignorant of the offending characteristics of their
weapons, and to subject them to lengthy prison terms, it
would have spoken more clearly to that effect.” Id. at 620;
see Harris, 959 F.2d at 261 (“We believe that if Congress,
against the background of widespread lawful gun ownership,
wished to criminalize the mere unregistered possession of
certain types of firearms[,] . . . it would have spoken clearly to
that effect.”).

    Similar concerns prompted application of the
presumption in United States v. X-Citement Video, Inc., 513
U.S. 64 (1994), in which the Court held that 18 U.S.C. § 2252
requires knowledge that a performer in a sexually explicit
video actually is a minor. As in Staples, the Court feared that
not requiring proof of mens rea “would sweep within the
                               11
ambit of the statute actors who had no idea that they were
even dealing with sexually explicit material,” such as a retail
druggist who returns an uninspected roll of developed film to
a customer. Id. at 69. Indeed, the court clarified the scope of
the presumption by explaining that “Morissette, reinforced by
Staples, instructs that the presumption in favor of a scienter
requirement should apply to each of the statutory elements
that criminalize otherwise innocent conduct.” Id. at 72
(emphasis added).

     Our own recent precedent follows the same logic. In
United States v. Project on Government Oversight
(“POGO”), 616 F.3d 544 (D.C. Cir. 2010), this Court
adopted the presumption that “criminal statutes and
regulations contain a mens rea element unless otherwise
clearly intimated in the language or legislative history.” Id. at
549. Like Staples and X-Citement Video, however, POGO
also involved a statute that criminalized otherwise lawful
behavior—in this case, contributions to public officials. The
Court based its application of the presumption on a similar
concern about criminalizing otherwise innocent conduct.
Absent an intent requirement, “a parent’s monthly checks to a
child who works for the government could be construed as
violating § 209(a): only the parent’s intent distinguishes
payments to help cover the rent from payments to subsidize
what the parent regards as an insufficient public-sector
salary.” Id. at 550. Thus, this Court made clear the
presumption in favor of mens rea was triggered by the need to
avoid imposing substantial penalties—including jail
sentences—on innocent citizens who had no idea they were
committing a crime.

    The concerns animating the presumption in favor of mens
rea in Morrissette, U.S. Gypsum, Staples, X-Citement Video,
and POGO simply are not present here.               Section
                              12
924(c)(1)(B)(ii) poses no danger of ensnaring “an altar boy
[who made] an innocent mistake,” Harris, 959 F.2d at 259,
because the government must first prove the defendant is
guilty of either drug trafficking or a violent crime, and must
further prove that the defendant intentionally used or carried a
firearm, or intentionally possessed a firearm, during or in
furtherance of that offense. Id. There is thus no risk of
unfairness because the defendant “knows from the very outset
that his planned course of conduct is wrongful.” United
States v. Feola, 420 U.S. 671, 685 (1975). Even NACDL’s
characterization of Harris as imposing “strict liability” is
inaccurate, as the government is still required to establish
mens rea with respect to the predicate crime and with respect
to the use, carrying, or possession of the firearm.

     This is not to say, as Judge Kavanaugh charges, that “the
fact that the defendant is a ‘bad person’ who has done ‘bad
things’ . . . justif[ies] dispensing with the presumption of
mens rea” entirely. Dissent at 32 (Kavanaugh, J., joined by
Tatel, J.). Nor can our opinion be read to mean that a
defendant’s guilty mind with respect to one type of offense
would suffice to allow the imposition of strict liability with
respect to a wholly different category of offense. The
dissent’s “altar boy” hypothetical is thus beside the point.
The dissent claims that under our rationale, an altar boy
would be guilty of both larceny and drug possession if he
stole a collection bag that, unbeknownst to him, contained a
stash of cocaine sewn into the lining. See id. But this is not
so, because a person who does not know a bag contains drugs
does not “knowingly” possess them. If the boy steals the
collection bag, knowing that it contains cash, he has the
requisite intent with respect to the theft offense and can
therefore be found guilty of larceny. But if the bag also
happens to contain cocaine, entirely without his knowledge or
                                 13
complicity, he lacks the knowledge statutorily required for
guilt of the controlled substances offense. 2

     Nor is it unusual to punish individuals for the unintended
consequences of their unlawful acts. Perhaps the most
obvious example is the felony-murder rule. In Dean v. United
States, 129 S. Ct. 1849, 1855 (2009), the Supreme Court
suggested the machinegun provision and the felony murder
rule are analytically congruent. Moreover, courts have
concluded similarly structured statutes do not require a
showing of mens rea. For example, this Court has interpreted
21 U.S.C. § 841, which imposes an additional ten-year
penalty for trafficking certain types or quantities of drugs, as
not requiring the government to prove the defendant knew
how much or what type of drug he was selling. United States
v. Branham, 515 F.3d 1268, 1276 (D.C. Cir. 2008). Every
other circuit to have addressed the question has agreed. See
id. at 1275 n.3 (collecting cases).

     Moreover, when asked to infer mens rea requirements in
other criminal statutes, neither this Court nor our sister
circuits have relied solely on whether a particular provision is
an element of the offense or a sentencing factor. Instead, this

2
  A more apt analogy might be a defendant who is prosecuted under
the Controlled Substances Act, 21 U.S.C. § 841, for distributing
heroin. Even if the defendant genuinely believed the substance was
cocaine, that would not render his conviction under §
841(b)(1)(A)(i) or (B)(i) a “strict liability” drug offense. As every
circuit to consider this question has held, the government is not
required to prove—as would often be extraordinarily difficult if not
impossible—“the defendant’s knowledge of the type of drug at
issue in his offense.” See, e.g., Branham, 515 F.3d 1275–76 & n.3
(collecting cases). Yet the dissent never even acknowledges the
fundamental inconsistency between its reasoning and these
holdings.
                               14
Court and others have frequently found that certain offense
elements do not require proof of an additional mens rea, so
long as the offense as a whole carries a scienter requirement
that separates innocent from criminal conduct. If O’Brien
required the overturning of Harris, it likely would require the
overturning of each of these precedents as well, because there
is no obvious way to distinguish them. For example, the Drug
Free School Zones Act, 21 U.S.C. § 860, provides heightened
penalties for drug distribution within 1,000 feet of a school.
In a prosecution under that statute, however, the government
need not prove the defendant’s knowledge of his proximity to
a school. See United States v. Holland, 810 F.2d 1215, 1223–
24 (D.C. Cir. 1987); see also United States v. Jackson, 443
F.3d 293, 299 (3d Cir. 2006); United States v. Dimas, 3 F.3d
1015, 1022 (7th Cir. 1993). Likewise, when interpreting the
Controlled Substances Act, 21 U.S.C. § 841, courts do not
require proof of the defendant’s knowledge of the type or
quantity of the substance, despite each being an element of
the offense. See Branham, 515 F.3d at 1275–76; see also,
e.g., United States v. King, 345 F.3d 149, 152–53 (2d Cir.
2003); United States v. Brower, 336 F.3d 274, 277 (4th Cir.
2003); United States v. Villarce, 323 F.3d 435, 439 (6th Cir.
2003). Certain statutes involving juveniles, where the
victim’s age is an element of the offense—e.g. 18 U.S.C.
§ 2241(c) (criminalizing the crossing of state lines for purpose
of engaging in sex with a minor under the age of 12); 18
U.S.C. § 2423 (the Mann Act) (prohibiting transportation of
juveniles across state lines for the purpose of prostitution); 21
U.S.C. § 861 (criminalizing use of a juvenile to commit or
conceal a drug offense)—do not require proof of mens rea
with respect to the juvenile’s age. See, e.g., United States v.
Cox, 577 F.3d 833, 836–38 (7th Cir. 2009) (holding that a
prosecution under the Mann Act does not require proof of the
defendant’s knowledge of the victim’s age); United States v.
Taylor, 239 F.3d 994, 996–97(9th Cir. 2001) (same); United
                                15
States v. Chin, 981 F.2d 1275 (D.C. Cir. 1992) (holding that a
defendant need not know the juvenile’s age to be convicted of
violating 21 U.S.C. § 861); United States v. Williams, 922
F.2d 737, 738–39 (11th Cir. 1991) (same). 3 Finally, statutes
defining offenses by reference to the value of the property
taken or damaged, such as 18 U.S.C. § 2113 (defining
different bank robbery offenses based on the value of the
property stolen) and 18 U.S.C. § 1361 (providing different
offense levels and penalties based on the value of the property
damaged) do not require the government to prove that the
defendant knew the exact monetary value. Absent either a
clear statement from the Supreme Court establishing a
presumption of mens rea for every element of an offense or a
clear demarcation in our caselaw between our treatment of
elements and sentencing factors, we cannot say that the
conceptual underpinnings of Harris have been weakened at
all, much less weakened so much as to justify abandoning it.

    Finally, the argument that the machinegun provision in
§ 924(c)(1)(B)(ii) must carry an implicit mens rea
requirement simply because the Court has construed it as an
offense element ignores the practical distinction between
proving objective facts and subjective mental states. The kind
of weapon used, like the type and quantity of drug, is a
physical fact, readily susceptible to proof beyond a reasonable

3
   At oral argument, Burwell claimed that statutes involving
juveniles are different from the machinegun provision at issue here
because the purpose of statutes like the Mann Act is to protect the
children involved. Although this is undoubtedly true to some
degree, some of these statutes might also have had other purposes,
such as preventing defendants from using juveniles to insulate
themselves from prosecution. See, e.g., 21 U.S.C. § 861. In any
event, courts have declined to read a mens rea requirement into
these statutes based on their text. See, e.g., Cox, 577 F.3d at 836–
37; Taylor, 239 F.3d at 996–97.
                             16
doubt. As such, Congress could well intend such factors to be
offense elements without intending to include an implicit,
subjective mens rea requirement. In that sense, this case is
similar to Chin, in which we found that the government is not
required to prove the defendant’s knowledge of the victim’s
age in a prosecution under 21 U.S.C. § 861, because it was
“implausible that Congress would have placed on the
prosecution the often impossible burden of proving, beyond a
reasonable doubt, that a defendant knew the youth he enticed
was under eighteen.” 981 F.2d at 1280.

     With their quiver of arguments almost empty, Burwell
and NACDL claim that certain dicta in O’Brien reveal the
Court’s belief—despite its express reservation of the question
discussed above—that § 924(c)(1)(B)(ii) contains an implicit
mens rea requirement. In O’Brien, the Supreme Court
explained that it is “not likely that Congress intended to
remove the indictment and jury trial protections” from the
machinegun provision of § 924(c). 130 S. Ct. at 2178. The
Court cited several factors, including “[t]he immense danger
posed by machineguns [and] the moral depravity in choosing
the weapon.” Id. NACDL contends this sentence undermines
Harris’s statement that “there does not seem to be a
significant difference in mens rea between a defendant who
commits a drug crime using a pistol and one who commits the
same crime using a machine gun.” 959 F.2d at 259. Thus,
NACDL claims the O’Brien Court held the varying penalties
attached to the different crimes enumerated in § 924(c) “are
pegged, inter alia, to the defendant’s relative moral
blameworthiness, i.e., to differing levels of scienter.”
NACDL Br. at 10.

    An argument that relies on one sentence of dicta from a
Supreme Court opinion is necessarily tenuous, and this one is
especially so. Burwell’s attempt to pluck this clause out of
                                 17
O’Brien, strip it of all context, and use it as justification for
overturning established precedent is unconvincing.             In
O’Brien, the critical question was whether Congress’s
decision to amend § 924(c) to provide mandatory minimum
sentences 4 should alter the Court’s characterization of the
machinegun provision as an element of the offense or a
sentencing factor. 5 O’Brien, 130 S. Ct. at 2178. The Court’s
statement, in context, is one consideration in the evaluation of
one of the five factors bearing on the decision’s holding. 6 As
such, it hardly rises to the level of an “intervening [legal]
development,” Patterson, 491 U.S. at 173, let alone one that
could fundamentally undermine longstanding precedent.

     Moreover, another recent Supreme Court opinion
strongly suggests that—contrary to Burwell’s argument—the
penalties in § 924(c) are not precisely calibrated to the level
of mens rea. The Court in Dean concluded the discharge
provision of § 924(c)(1)(A)(iii) requires no separate proof of
intent. See 129 S. Ct. at 1856. In so holding, the Court noted
that a § 924(c) defendant whose firearm discharges “is

4
  The previous version provided mandatory sentences.
5
  In Castillo, the Court held that § 924(c)(1)(B)(ii) uses the word
“machinegun” to state an element of a separate offense. 530 U.S.
120, 121 (2000). Congress subsequently amended the language of
§ 924(c), leading the Court to revisit the same issue in O’Brien, 130
S. Ct. at 2172.
6
  In determining whether the machinegun provision in § 924(c)
constituted an element or sentencing factor, the Court in Castillo
examined five factors directed at determining congressional intent:
(1) language and structure, (2) tradition, (3) risk of unfairness, (4)
severity of the sentence, and (5) legislative history. O’Brien, 130 S.
Ct. at 2175. The “moral depravity” statement appeared in the
Court’s analysis of the fourth factor, alongside the Court’s
recognition of “[t]he immense danger posed by machineguns.” Id.
at 2178.
                               18
already guilty of unlawful conduct twice over: a violent or
drug trafficking offense and the use, carrying, or possession
of a firearm in the course of that offense.” Id. at 1855.
Accordingly, “[t]he fact that the actual discharge of a gun . . .
may be accidental does not mean that the defendant is
blameless,” and the sentencing enhancement in
§ 924(c)(1)(A)(iii) properly “accounts for the risk of harm
resulting from the manner in which the crime is carried out,
for which the defendant is responsible.” Id. To be sure, Dean
is not dispositive here, because the Court found that the
discharge provision is a sentencing factor rather than a
separate element of the offense. Id. at 1854. Still, the Court’s
analysis suggests that a mens rea requirement is not, as
Burwell and his amici suggest, mechanically linked to the
various provisions of the statute in accordance with the
relative severity of the penalty.

     Finally, the FPD argues this Court implicitly overruled
Harris in United States v. Brown, which noted that Harris had
been “somewhat undermined” by the Supreme Court’s
statement in Castillo that the difference between carrying a
pistol and a machinegun is “great, both in degree and kind.”
449 F.3d 154, 158 (D.C. Cir. 2006) (quoting Castillo, 530
U.S. at 126). But Brown’s reading of Harris is more
accurately characterized as equivocal, as the Court proceeded
to acknowledge that Harris’s reading of the machinegun
provision “might be reasonable” given “the hazard of the
weapon itself (which in almost all instances would likely be
obvious to the defendant).” Id. at 158. 7 Questioning the

7
  The Federal Public Defender also overlooks the fact that this
Court followed Harris in United States v. Gilliam, when it
approved Harris’s reasoning and applied it to the semiautomatic
assault weapon provision of § 924(c)(1). 167 F.3d 628, 637–38
(D.C. Cir. 1999). Because Gilliam was decided before Castillo,
                               19
continuing viability of a precedent is a far cry from implicitly
overruling it, particularly where, as in Brown, the precedent is
not directly relevant to the issue before the Court. 8 In sum,
we conclude that Burwell and his amici have failed to
establish that any intervening legal development has
weakened, much less removed, the conceptual underpinnings
of Harris. Patterson, 491 U.S. at 173.

           b. Decisions of Other Circuits

     This Court may also overrule its established
interpretation of a statute “if it finds that other circuits have
persuasively argued a contrary construction.” Critical Mass
Energy Project, 975 F.2d at 876. Burwell urges us to
overturn Harris because each circuit that has decided the
machinegun provision is an element of a § 924(c) offense has
also assumed that knowledge of the type of weapon is
required. See United States v. Franklin, 321 F.3d 1231, 1240
(9th Cir. 2003) (finding that evidence was sufficient to show
the defendant “knew the weapon was capable of being fired in
an automatic setting”); United States v. Rodriguez, 54 F.
App’x 739, 747 (3d. Cir. 2002) (assuming without deciding
that knowledge of the type of weapon is an element of the
offense); United States v. Dixon, 273 F.3d 636, 640–41 (5th
Cir. 2001) (assuming without deciding that Castillo makes
defendant’s knowledge of the weapon’s automatic firing
capability an element of the offense).

     As Burwell seems to concede, however, no circuit has
rejected Harris. In fact, none of the cases Burwell cites even

however, this omission has no effect on whether the Supreme
Court’s statement in Castillo undermined the rationale of Harris.
8
  Brown held that § 924(c)(1)’s discharge provision contains an
implied intent requirement, a conclusion overruled by the Supreme
Court in Dean, 129 S. Ct. at 1853–56.
                              20
consider the analysis in Harris. In Franklin, for example, the
court concluded that the evidence presented was sufficient for
a rational jury to find that the defendant knew the weapon was
capable of being fired in an automatic setting, citing neither
§ 924(c)(1)(B)(ii) nor Harris’s analysis of that provision. 321
F.3d at 1240. Similarly, in both Rodriguez and Dixon, the
courts concluded—without wrestling with the larger question
of whether knowledge was required—that any failure to
submit the element of knowledge to the jury was harmless
error. See Rodriguez, 54 F. App’x at 747; Dixon, 273 F.3d at
641. None of these cases can be reasonably construed as
rejecting our analysis in Harris.

     Moreover, an equal number of circuits have held that the
machinegun provision does not contain an implied knowledge
requirement, although some have done so based on their
conclusion that the provision is a sentencing enhancement.
See United States v. Ciszkowski, 492 F.3d 1264, 1268–69
(11th Cir. 2007) (basing holding on language of the statute
and inapplicability of Staples); United States v. Gamboa, 439
F.3d 796, 812 (8th Cir. 2006) (basing holding on the view that
the machinegun provision was a sentencing factor); United
States v. Eads, 191 F.3d 1206, 1212–14 (10th Cir. 1999)
(same). All of these cases—including the ones cited by
Burwell and his amici—were decided prior to O’Brien,
however, so it is unclear how these other circuits will evaluate
the impact of that decision on their respective analyses of §
924(c)’s mens rea requirement. At best, Burwell can
plausibly claim that three other circuits have implied—though
not actually decided—that they would reject Harris if forced
to decide the question. One other circuit has implied that it
would continue to follow Harris’s logic. The possibility of a
future circuit split hardly constitutes the “tide of recent
judicial developments” necessary to justify overruling an
                              21
established precedent.   Critical Mass Energy Project, 975
F.2d at 876.

              c. Fundamental Flaws in Harris’s Analysis

     The final basis on which an en banc court may set aside
its own precedent is “if, on reexamination of an earlier
decision, it decides that a panel’s holding on an important
question of law was fundamentally flawed.” Id. Despite
appellant’s arguments to the contrary, we remain convinced
that Harris interpreted § 924(c) correctly.

     Section 924(c)(1)(B)(ii) is silent regarding a mens rea
requirement, and the Supreme Court has “ordinarily resist[ed]
reading words or elements into a statute that do not appear on
its face.” Dean, 129 S. Ct. at 1853. The text of
§ 924(c)(1)(B)(ii) provides that the machinegun penalty is
triggered if the firearm “is” a machinegun—which refers to a
state of being that exists “without respect to a specific actor,
and therefore without respect to any actor’s intent or
culpability.” Id. In other words, Congress’s grammatical
choice telegraphs its intent to eliminate an additional mens
rea requirement for that particular provision. After all, a
firearm “is” a machinegun, whether the defendant knows it or
not.

     The structure of the statute and the context of
§ 924(c)(1)(B)(ii) also suggest that Congress did not intend it
to include a mens rea requirement. Dean noted Congress had
defined the “brandishing” provision, 18 U.S.C.
§ 924(c)(1)(A)(ii), to include a mens rea requirement because
to “brandish” means “to display . . . in order to intimidate.”
Id. § 924(c)(4). Congress did not, however, include such a
requirement for any of the other provisions in § 924(c).
“[W]here Congress includes particular language in one
                                22
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” Dean,
129 S. Ct. at 1854. Here, it cannot be said that Congress
simply forgot about mens rea when it drafted § 924(c), as the
drafters of the statute quite clearly chose to require a showing
of intent for one particular provision but not for the others.

     At oral argument, Burwell nonetheless contended that the
implicit scienter requirement in § 924(c) must be applied to
the machinegun element in § 924(c)(1)(B)(ii), citing the
Supreme Court’s decision in Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009), and our own opinion in United
States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008),
for the proposition that mens rea must apply to every element
of the offense, unless Congress clearly indicates otherwise.
See, e.g., Oral Arg. Recording 9:20 – 9:45. But neither
Flores-Figueroa nor Villanueva-Sotelo stands for that
sweeping proposition. Rather, the holdings in those cases
rested on circumstances not present here: namely, rules of
“ordinary English grammar” indicated that the word
“knowingly” in 18 U.S.C. § 1028A(a)(1) 9 be read to apply to
“all the subsequently listed elements of the crime,” Flores-
Figueroa, 129 S. Ct. at 1890; see generally Villanueva-Sotelo,
515 F.3d at 1239–41, and Congress’s use of the statutory title
“aggravated identity theft” suggested that the offender must
“know that what he has taken identifies a different real
person,” Flores-Figueroa, 129 S. Ct. at 1893; see Villanueva-
Sotelo, 515 F.3d at 1246. The question before the Court was
9
  The federal identity theft statute, 18 U.S.C. § 1028A, imposes a
mandatory consecutive two-year prison term on individuals
convicted of other crimes if during and in relation to the
commission of those other crimes, the defendant “knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person.”
                              23
thus primarily one of statutory construction—in other words,
the Court had to determine how far down the sentence the
word “knowingly” traveled.            Here, by contrast, §
924(c)(1)(B)(ii) contains no “phrase . . . that introduces the
elements of [the] crime with the word ‘knowingly.’” Flores-
Figueroa, 129 S. Ct. at 1891. And the structure and
legislative history of § 924(c) contain no clues that Congress
intended for an implied scienter requirement to modify the
weapon-specific sub-provisions in § 924(c)(1)(B).

     Finally, the purpose of § 924(c) is quite clear: “to
persuade the man who is tempted to commit a Federal felony
to leave his gun at home.” Muscarello v. United States, 524
U.S. 125, 132 (1998). The higher penalties attached to the
use of the most dangerous kinds of firearms reflect
Congress’s desire to create a deterrent commensurate with the
increased danger posed by these weapons. See id. (citing
legislative history of § 924(c)). Burwell argues, however, that
a mens rea requirement is necessary to effectuate Congress’s
deterrent purpose, as deterrence “assumes that potential
violators can anticipate what punishment they might receive.”
United States v. Cavera, 550 F.3d 180, 223 (2d Cir. 2008)
(Sotomayor, J., dissenting in part). Sentencing defendants for
using a machinegun without first ensuring that they knew the
weapon’s characteristics “converts a deterrent statute to one
that is mainly punitive.” Reply Brief at 11–12.

     In so arguing, appellants adopt an unduly crabbed
definition of “deterrence.” To be sure, a statute might aim to
deter each individual offender from committing a particular
crime (or in this case, choosing a particular weapon to commit
a crime), which implicitly requires that the offender make a
conscious choice to engage (or not) in a particular course of
conduct. But a statute might also attempt to deter offenders
more generally through the imposition of a particularly severe
                               24
penalty for a certain offense. In the case of § 924(c)(1)(B)(ii),
for example, Congress likely attached such a steep penalty to
the use of a machinegun in an attempt to deter all offenders
from using such weapons. This broader understanding of
“deterrence” does not require that each individual offender
convicted under the statute have mens rea with respect to the
machinegun, because the deterrent value of the statute arises
out of its capacity to deter future offenders. As the Court
stated in Dean, in the course of holding that the discharge
provision in § 924(c)(1)(A)(iii) applies even if the defendant
did not intend to fire the weapon, “[t]hose criminals wishing
to avoid the penalty for an inadvertent discharge can lock or
unload the firearm [or] handle it with care during the
underlying violent or drug trafficking crime.” 129 S. Ct. at
1856. Similarly, a defendant wishing to avoid the 30-year
mandatory minimum for using, carrying, or possessing a
machinegun can carefully inspect his weapon, “leave the gun
at home, or—best yet—avoid committing the felony in the
first place.” Id.

     NACDL argues the severity of the penalty for violating
§ 924(c)(1)(B)(ii)—a mandatory minimum sentence of 30
years’ imprisonment—heightens the intuition that Congress
would not eliminate the mens rea requirement. NACDL Brief
at 19–20. NACDL notes strict liability “public welfare”
statutes are “disfavored” and generally involve only light
penalties, such as fines or short jail sentences. Staples, 511
U.S. at 607, 616. They further contend that because the
Supreme Court deemed the 10-year sentences in Staples and
X-Citement Video to be “harsh,” the machinegun provision’s
mandatory penalty of a consecutive 30 years to life “can only
be described as draconian.” NACDL Brief at 21.

    Amicus’ attempt to broaden the reach of existing
precedent is unconvincing. In Staples, as explained above,
                              25
the Court’s consideration of the severity of the penalty was
decidedly narrow. The Court expressly declined to adopt a
sweeping rule of construction that would endorse
consideration of the severity of the penalty as an element in
determining whether mens rea is required. Rather, the Court
“note[d] only that where, as here, dispensing with mens rea
would require the defendant to have knowledge only of
traditionally lawful conduct, a severe penalty is a further
factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement.” Staples, 511 U.S. at 618;
see also X-Citement Video, 513 U.S. at 72 (evincing the same
concern about imposing harsh penalties on actors who had no
idea they were violating the law). This is obviously not the
case with respect to § 924(c)(1)(B)(ii), as any defendant faced
with the machinegun provision’s mandatory 30-year penalty
must already have been found guilty of a predicate violent
crime or drug trafficking offense, and must have intentionally
used, carried, or possessed a firearm during and in relation to,
or in furtherance of, that offense.

     Burwell’s comparison of § 924(c) to “strict liability
crimes” is inapposite for the same reason. In contrast to
traditional “public welfare” offenses, under which the
government need not prove mens rea at all, the government is
required under this statute to first establish mens rea with
respect to the predicate offense, and then to prove that the
defendant intentionally used, carried, or possessed a firearm
in the course of that crime. Similarly, Burwell’s comparison
of penalties fails to recognize the fundamentally different
contexts in which those penalties are imposed. In both
Staples and X-Citement Video, the Court declined to impose
10 years’ imprisonment on defendants who would otherwise
not be convicted of any crime. Here, by contrast, the
defendants already face substantial sentences for committing
a violent crime. While an additional 30 years obviously
                               26
represents a substantial multiple of their sentence, its severity
pales in comparison to imposing a lengthy jail sentence on a
person who would otherwise be free. Moreover, as noted
above, several federal statutes expressly impose severe
penalties without requiring mens rea for every element of the
offense. See, e.g., Branham, 515 F.3d at 1275–76 (imposing
penalty of 10 years to life for possession with intent to
distribute certain types and quantities of drugs without
requiring proof of additional mens rea under 21 U.S.C.
§ 841).

     Finally, Burwell and the Federal Public Defender argue
Harris was fundamentally flawed because it imposes unjust
penalties on co-conspirators. They note that without a
separate knowledge requirement, “mere” co-conspirators in
low-level drug conspiracies might be subjected to 30-year
sentences for violent or drug-trafficking crimes committed
with machineguns in furtherance of the conspiracy, as long as
it is reasonably foreseeable that such crimes would involve
guns of any kind. This would be unjust, the FPD argues, if
the particular defendant “had no reason to foresee, let alone
know, that some member of the conspiracy—any member—
would use or possess a machinegun (as opposed to a generic
firearm).” FPD Brief at 14. But the premise of this argument
is not necessarily correct. The Supreme Court has not
extended vicarious liability to situations in which “the
substantive offense . . . could not be reasonably foreseen as a
necessary or natural consequence of the unlawful agreement.”
Pinkerton v. United States, 328 U.S. 640, 647–48 (1946).
Because the machinegun provision is an element of the
substantive § 924(c) offense, it is not clear (and we express no
opinion as to) whether liability would attach to co-
                                27
conspirators who could not reasonably foresee the use of the
machinegun. 10

    For these reasons, we remain unpersuaded that Harris
was fundamentally flawed as a matter of law, and therefore
conclude appellant failed to demonstrate any of the
considerations that would justify overruling Harris.
Accordingly, we need not reach appellant’s claim that if
§ 924(c) contains a knowledge requirement, the evidence was
insufficient to sustain his conviction.

                               III

     Appellant also claims that in light of O’Brien, the rule of
lenity requires the Court to vacate his conviction under
§ 924(c)(i)(B)(ii). Appellant’s Br. at 28. The rule of lenity
prevents the interpretation of a federal criminal statute “so as
to increase the penalty that it places on an individual when
such an interpretation can be based on no more than a guess
as to what Congress intended.” United States v. Villanueva-
Sotelo, 515 F.3d 1234, 1246 (D.C. Cir. 2008). But to invoke
the rule of lenity, a court must conclude that “there is a
grievous ambiguity or uncertainty in the statute.” Muscarello,
524 U.S. at 139 (emphasis added). “The simple existence of
some statutory ambiguity… is not sufficient to warrant
application of that rule, for most statutes are ambiguous to
some degree.” Id. at 138. There is no grievous ambiguity
here because, as this Court held twenty years ago in Harris,
the structure, statutory context, and purpose of §
10
   Moreover, to the extent that the FPD objects to finding “mere”
co-conspirators vicariously liable for acts committed by their
conspirators, his problem lies with the law of conspiracy, not with
§ 924(c).    The Court should not manipulate the mens rea
requirement to account for some perceived injustice wrought by the
elements of criminal conspiracy.
                              28
924(c)(1)(B)(ii) all make clear that the provision does not
contain a separate mens rea requirement. Indeed, as the
Supreme Court held in Dean when declining to apply the rule
of lenity to § 924(c)(1)(A)(iii), “the statutory text and
structure convince us that” Congress did not require proof of
any additional mens rea, and Burwell’s “contrary arguments
are not enough to render the statute grievously ambiguous.”
129 S. Ct. at 1856.


                              IV

     Because the principle of stare decisis is “of fundamental
importance to the rule of law,” Welch, 483 U.S. at 494, this
Court imposes a substantial burden on a party advocating the
abandonment of an established precedent. We will not
overturn our prior decision simply because a reading of
Supreme Court dicta might support some inference that the
Court might, in some future case, come to question our
approach. Our job is simply to apply the law as it currently
exists.

     Judge Kavanaugh’s dissent makes two dubious claims.
First, he argues that the Supreme Court’s precedents
definitively establish that neither statutory silence, nor
Congress’s decision to include mens rea in certain parts of a
statute but omit it in others, serves to defeat the presumption
of mens rea. Second, he contends that the Supreme Court has
established and applied a rule of statutory interpretation for
federal crimes wherein the Court imputes the presumption of
mens rea to each element of an offense unless plainly—i.e.,
explicitly—indicated otherwise. Flores-Figueroa is the lever
with which the dissent proposes to upend decades of
precedent and establish the bona fides of these otherwise
unmoored assertions. But that case is not up to the task.
                              29

     Judge Kavanaugh’s attempt to analogize our position to
that of the government in Flores-Figueroa is inapt, because
that case – as he acknowledges – involved a statute containing
an explicit mens rea requirement. See 18 U.S.C. §1028A
(punishing someone who “knowingly transfers, possesses, or
uses . . .a means of identification of another person” while
committing an enumerated predicate crime); 129 S. Ct. at
1888-89. Section 924(c)(1)(B)(ii) contains no such language.
Judge Kavanaugh’s argument boils down to the assertion that
we should rewrite the text of §924(c) and imply a mens rea
requirement where none was meant to exist, in the service of
an assertedly strong “traditional presumption of mens rea”
applicable to every element of an offense.

     Historically, the altar boy archetype, i.e., innocent
conduct, justified imposition of an extratextual gloss on
statutes that lacked an explicit scienter requirement. In
Flores-Figueroa, the Court rejected the government’s
argument that the absence of innocence should circumscribe
the reach of an explicit mens rea requirement. Judge
Kavanaugh insists this portends a major shift in the Court’s
jurisprudence. Perhaps. But ignoring the lack of an
innocence rationale where a statute contains an express
requirement does not mean innocence is irrelevant where the
statute is silent. Indeed, the Court’s strongly textual approach
in Flores-Figueroa counsels against judicial creation of a
mens rea requirement for every element in the face of
statutory silence.

    Judge Kavanaugh, applying rules of his own creation,
ignores the role of innocence and concludes the mens rea
presumption—writ large—still justifies an extratextual (or
even countertextual) reading of the statute, because that
background presumption applies to every element of a
                              30
criminal offense unless Congress expressly disclaims it.
Nothing in Flores-Figueroa or any other Supreme Court
precedent supports that result.

     Judge Rogers’ approach is even more unbounded. Her
solution—a balancing test completely unmoored from circuit
or Supreme Court precedent—is substantially broader than
anything we have proposed. See id. at 14 (“I would take my
lead from Staples and simply hold that the thirty-year term of
imprisonment . . . is so severe in length that it outweighs the
fact that the conduct prohibited is not otherwise innocent[.]”).
Nowhere does Staples, or any other case, suggest these two
considerations should be balanced in order to determine
whether a court should imply a mens rea requirement when
faced with statutory silence. If anything, such an open-ended
test creates a much greater potential for spillover into a “host
of other applications” than does our solution, which is firmly
rooted in the text and structure of § 924(c)(1)(B)(ii).

     Finding nothing in the Supreme Court’s holdings, our
own caselaw, or “deeply rooted principles of law and justice,”
Kavanaugh Dissent at 1, that would justify overturning our
decision in Harris, we affirm our previous conclusion that
§ 924(c)(1)(B)(ii) does not require the government to prove
that a defendant knew that the weapon he used, carried, or
possessed was a machinegun. Accordingly, we reinstate the
panel opinion and affirm appellant’s conviction.
     SENTELLE, Chief Judge, concurring: Although I confess to
having come late to the wisdom expressed by Judge Henderson,
I join her view that the procedural background of this case and
the applicable burden of proof make it apparent in the end that
we have improvidently granted en banc review. Upon
examining the merits of the case, I recall the conclusion
previously expressed by one of our colleagues in an earlier
concurrence in an en banc decision: “Because I believe that in
a close en banc case prior precedent is entitled to some respect,
I join the majority opinion.” United States v. Mills, 964 F.2d
1186, 1194 (D.C. Cir. 1992) (Silberman, J., concurring).

      As the majority notes, this is a statutory question, albeit
with constitutional implications.          Errors in statutory
interpretation are reparable by congressional action. Errors in
our interpretation are reparable by the action of the Supreme
Court. Therefore, when the question is a close one—and this
one I think is exceedingly close—I will accept the weight of
precedent and vote with the majority to leave undisturbed this
circuit’s controlling interpretation of 18 U.S.C.
§ 924(c)(1)(B)(ii). Nonetheless, in doing so, I agree with the
dissent that the “altar boy argument” of the majority is
unconvincing and perhaps stands at the head of some slippery
slope. I do think it not good enough to posit that someone
should know conduct is illegal and therefore to avoid it where
the illegality of the conflict may be measured in degrees. That
is, the dissent poses a fair question, quoted from the Supreme
Court when it asked: “Would we apply a statute that makes it
unlawful ‘knowingly to possess drugs’ to a person who steals a
passenger’s bag without knowing that the bag has drugs inside?”
Dissent at 18 (quoting Flores-Figueroa v. United States, 556
U.S. 646, 650 (2009)).

    I do not suggest that the defendant in the present case has
been inflicted any great injustice. Judge Henderson’s separate
                               2

concurrence points out the futility of making such a suggestion.
Nonetheless, both the majority and the dissent express strong
and well-reasoned arguments for their positions, and, as I stated
above, I concur with the majority because of the stability
principle inherent in our doctrine of stare decisis.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
     I wholeheartedly join the majority opinion but am at a loss
why its writing became necessary in the first place. En banc
review serves two purposes: to ensure the consistency of our
caselaw and to resolve issues of exceptional importance. Fed.
R. App. P. 35(a). Because this appeal serves neither purpose, I
believe the rehearing petition should have been summarily
denied and the panel decision left intact.
      First, en banc consideration is not “necessary to secure or
maintain uniformity of the court’s decisions.” Fed. R. App. P
35(a)(1). The sole issue on en banc review is whether 18 U.S.C.
§ 924(c)(1)(B)(ii) “requires the government to prove that the
defendant knew the weapon he was carrying was capable of
firing automatically.” Maj. Op. at 2-3. Circuit law on this issue
has been clear and consistent for twenty years. In United States
v. Harris, 959 F.2d 246 (D.C. Cir. 1992), we rejected the
defendant’s argument that “the government must show the
defendant knew the precise nature of the weapon,” concluding
instead that it need show only that the defendant “knowingly or
intentionally possessed a firearm, and that [he] did so
intentionally to facilitate” one of the two types of predicate
offenses identified in section 924(c)(1)(B)(ii)—either a crime of
violence or a drug trafficking crime. Harris, 959 F.2d at 259.
None of our precedents—either before or since Harris—calls its
holding into question. Nor, as the majority opinion so deftly
demonstrates, did the United States Supreme Court’s decision in
United States v. O’Brien, which, acknowledging the “case d[id]
not require the Court to consider any contention that a defendant
who uses, carries, or possesses a firearm must be aware of the
weapon’s characteristics,” “expresse[d] no views on the point.”
130 S. Ct. 2169, 2173 (2010).
     The issue on rehearing likewise falls short on the second
ground for en banc review, that is, that it is plainly not “a
question of exceptional importance,” Fed. R. App. P. 35(a)(2).
Because Burwell’s trial counsel failed to request an instruction
that the jury be required to find Burwell knew of the gun’s
                                  2

automatic capability,1 we treat the court’s failure to give such an
instruction less rigorously and review it for plain error only. See
United States v. Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011).2
      Under the plain error standard, Burwell “would have to
establish (1) a legal error that was (2) plain (a term that is
synonymous with clear or obvious), and that (3) affected his
substantial rights.” Id. (quotation marks and alterations omitted).
Even if the failure to charge mens rea were error so as to satisfy
the first prong of the test (a possibility the majority opinion
definitively refutes), it would not satisfy the second and third
prongs. It could not be “plain” because it “contradicted no
precedents of this Court or the Supreme Court.” Id. And it
could not “affect [Burwell’s] substantial rights” because it did
not “unfairly prejudice” him given the overwhelming evidence
he was aware the firearm was an automatic weapon. United
States v. Mahdi, 598 F.3d 883, 891 n.8 (D.C. Cir. 2010). The
trial testimony reflects that the gang members decided to use
military weapons such as AK-47s instead of handguns because
they believed the metropolitan police “wouldn’t respond” if


     1
      The government moved during trial to preclude closing
argument requiring mens rea and only defendant Morrow filed an
opposition. See Memorandum Opinion, United States v. Morrow, No.
1:04-cr-00355, at 1-2 (D.D.C. June 20, 2005). The district court
granted the motion, declaring that “any closing argument by any
Defendant which suggests that he could not have known the precise
automatic nature of the weapon alleged in a Section 924(c)(1) charge
is both irrelevant and improper.” Id. at 7.
     2
      The majority opinion correctly concludes that Harris remains
good law and it therefore does not reach the sufficiency of the
evidence or consider plain error review. See Maj. Op. at 27. I address
sufficiency of the evidence/plain error to emphasize our mistake in en
bancing this case in particular, without having to reach Harris’s
continuing validity.
                                   3

they “robb[ed] banks with assault weapons.” Trial Tr. at 3950.
And they used their AK-47s repeatedly and with abandon.3
Moreover, when Burwell carried the AK-47 to perform “crowd
control” during one robbery, a circular 75-round drum magazine
was affixed to the gun. With that attachment, the gun’s
automatic potential was eye-popping—particularly to a gun
afficionado like Burwell.4 See Appellee’s Opp’n at 2-3 & n.3.
Even the manager of the target bank, who “d[id]n’t really know
about guns,” testified it “look[ed] like a machine gun type of
gun.” Trial Tr. 1916. Given the overwhelming evidence
Burwell knew the gun’s capability, if the court had charged the
jury on mens rea as Burwell now tardily presses, it could not
have avoided finding that he knew the weapon was a machine
gun and convicted him in any event.5 Accordingly, the failure
to so instruct the jury did not unfairly prejudice Burwell.6

     3
      During the gang’s first armed robbery, Burwell’s co-conspirators
fired three AK-47s (including the two-handled AK-47) “in fully
automatic mode, ‘spraying’ bullets at a pursuing police car.”
Corrected Appellee’s Opp’n to Appellant’s Pet. for Reh’g En Banc,
at 3 n.3 (Sept. 2, 2011) (Appellee’s Opp’n). It was after this incident
that Burwell, who had previously participated with the gang in an
armed carjacking, told two of the members he wanted to start robbing
banks with them. Id.
     4
     After the arrests, the police found “stash[es]” of gun-related
paraphernalia, including a bulletproof vest and a glove (connected to
Burwell by DNA) and three gun periodicals, one of which bore eleven
of Burwell’s fingerprints on its pages. Appellee’s Opp’n at 3 n.4.
     5
      In light of the overwhelming scienter evidence, Burwell is
plainly not, as the dissent might suggest, a defendant “who genuinely
thought the gun was semi-automatic.” Dissent at 2; see also id. at 51.

     6
      In the absence of such prejudice, plain error is foreclosed as well
by the corollary to the plain-error standard which instructs that, even
                                   4

     Because there is no conflicting Supreme Court or Circuit
precedent and the issue was contested so late in the proceeding,
this appeal is an egregiously inappropriate candidate for en banc
review. That en banc review was nonetheless granted only
prolonged Burwell’s meritless appeal and squandered the court’s
and the parties’ resources.




if each of the three prongs is met, the court should “correct a plain
error as a matter of discretion only if the error seriously affected the
fairness, integrity or public reputation of judicial proceedings.” Id. at
353-54 (quotation marks and alterations omitted). Moreover, even
were plain error not the proper standard, the alleged error would be
“harmless” and therefore not reversible “because it is ‘clear beyond
a reasonable doubt that a rational jury would have found the defendant
guilty absent the error.’ ” United States v. Johnson, 216 F.3d 1162,
1167 n.5 (D.C. Cir. 2000) (quoting Neder v. United States, 527 U.S.
1, 19 (1999)).
     ROGERS, Circuit Judge, dissenting: For many of the reasons
stated by Judge Kavanaugh, I would vacate the judgment of
conviction under 18 U.S.C. § 924(c)(1)(B)(ii). The majority
concludes, in applying the doctrine of stare decisis, that
“Burwell and his amici have failed to establish that any
intervening legal development has weakened, much less
removed, the conceptual underpinnings of Harris.” Ante at 19
(Brown, J., majority op.) (emphasis added). But the Supreme
Court has twice stated that carrying a machinegun involves
heightened culpability. See United States v. O’Brien, 130 S. Ct.
2169, 2178 (2010) (stating that “choosing” a machinegun
involves “moral depravity”); Castillo v. United States, 530 U.S.
120, 126 (2000) (“[T]he difference between carrying, say, a
pistol and carrying a machinegun . . . is great, both in degree and
kind.”). Undeniably, our holding in United States v. Harris, 959
F.2d 246, 259 (D.C. Cir. 1992), that conviction under 18 U.S.C.
§ 924(c)(1)(B)(ii) did not require proof of mens rea, was
premised on the opposite view: “[T]here does not seem to be a
significant difference in mens rea between a defendant who
commits a drug crime using a pistol and one who commits the
same crime using a machine gun; the act is different, but the
mental state is equally blameworthy,” id. Dicta or not, see ante
at 16 (Brown, J., majority op.), the Supreme Court has twice
rejected a key basis underlying Harris’s conclusion that there is
no mens rea requirement in § 924(c)(1)(B)(ii).1 See Patterson
v. McLean Credit Union, 491 U.S. 164, 173 (1989); see also
Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009); D.C. CIR.
R. 35(a)(2).




        1
          As this court has observed, “Supreme Court dicta tends to
have somewhat greater force.” United States v. Dorcely, 454 F.3d
366, 375 (D.C. Cir. 2006) (quoting Bangor Hydro-Elec. Co. v. FERC,
78 F.3d 659, 662 (D.C. Cir. 1996)). See Winslow v. FERC, 587 F.3d
1133, 1135 (D.C. Cir. 2009).
                               2

     To date, the Supreme Court’s precedent regarding whether
a criminal statute should be interpreted as requiring proof of
mens rea has involved: (1) statutes that contained an explicit
mens rea, but were unclear as to how far the mens rea
requirement should “travel”; (2) statutes that were silent but,
absent a showing of mens rea, risked criminalizing otherwise
innocent conduct; or (3) statutes with minor punishments
deemed “public welfare” offenses, where the Court was less
concerned with dispensing with a mens rea requirement.
Section 924(c)(1)(B)(ii) does not risk criminalizing otherwise
innocent conduct in this sense, but the mandated thirty-year
minimum, consecutive term of imprisonment means the public
welfare exception is inapposite. In the absence of controlling
precedent, and given that Harris’s scienter premise has been
rejected, I would hold, based on the following analysis, that the
severe additional punishment mandated by section
924(c)(1)(B)(ii) (magnitudes greater than any of the other
statutes considered in the relevant Supreme Court precedent)
requires for conviction proof of the defendant’s knowledge that
the firearm was a machinegun. Accordingly, I respectfully
dissent.

                               I.

     In concluding that the fact that the firearm was a
machinegun under section 924(c)(1)(B)(ii) is an element of the
offense, rather than a sentencing factor, the Supreme Court
acknowledged in O’Brien that the structure of section 924(c)
demands escalating terms of imprisonment for increasingly
culpable conduct. See 130 S. Ct. at 2178. But the Court also
stated that it “expresse[d] no views” on whether the provision
required proof of mens rea. Id. at 2173. The issue was not
before the Court; indeed, to decide it would have required quite
a diversion: section 924(c)(1)(B)(ii) does not fit well with
                               3

Supreme Court precedent determining whether a statute requires
proof of mens rea.

     Two background principles underlie consideration of
Burwell’s statutory challenge. The first is that “determining the
mental state required for commission of a federal crime requires
‘construction of the statute and . . . inference of the intent of
Congress.’” Staples v. United States, 511 U.S. 600, 604–05
(1994) (quoting United States v. Balint, 258 U.S. 250, 253
(1922)). The second is that “silence on this point by itself does
not necessarily suggest that Congress intended to dispense with
a conventional mens rea element” because courts must “construe
the statute in light of the background rules of the common law,
in which the requirement of some mens rea for a crime is firmly
embedded.” Id. at 605 (citing United States v. United States
Gypsum Co., 438 U.S. 422, 436–37 (1978)). The Supreme
Court has explained:

         There can be no doubt that this established concept has
         influenced our interpretation of criminal statutes.
         Indeed, we have noted that the common-law rule
         requiring mens rea has been “followed in regard to
         statutory crimes even where the statutory definition did
         not in terms include it.” Relying on the strength of the
         traditional rule, we have stated that offenses that
         require no mens rea generally are disfavored, and have
         suggested that some indication of congressional intent,
         express or implied, is required to dispense with mens
         rea as an element of a crime.

Id. at 605–06 (quoting Balint, 258 U.S. at 251–52) (internal
citations omitted).

    In addressing these background principles, the Court has
adopted three general rules of interpretation:
                                 4

          First, “courts ordinarily read a phrase in a criminal
statute that introduces the elements of a crime with the word
‘knowingly’ as applying that word to each element.” Flores-
Figueroa v. United States, 556 U.S. 646, 652 (2009) (citing
United States v. X-Citement Video, Inc., 513 U.S 64, 79 (1994)
(Stevens, J., concurring) (“[T]he normal, commonsense reading
of a subsection of a criminal statute introduced by the word
‘knowingly’ is to treat that adverb as modifying each of the
elements of the offense identified in the remainder of the
subsection.”)). This is a rule fundamentally about grammar –
the mens rea is read to “travel” through to the end of the
sentence (or statutory subsection).

          Second, where the statute is silent as to mens rea, so the
first rule provides no source of a mens rea requirement, the
Supreme Court has applied a presumption of mens rea to avoid
criminalizing otherwise innocent conduct. “[T]he presumption
in favor of a scienter requirement should apply to each of the
statutory elements that criminalize otherwise innocent conduct.”
United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994);
see also, e.g., Staples, 511 U.S. at 614–15; Liparota v. United
States, 471 U.S. 419, 426 (1985).

          Third, the Court has recognized an exception to the
background principle disfavoring strict liability crimes for
“public welfare” or “regulatory” offenses. “In construing such
statutes, [the Court] ha[s] inferred from silence that Congress
did not intend to require proof of mens rea to establish an
offense.” Staples, 511 U.S. at 606. Public welfare offenses
have been recognized in “‘limited circumstances.’ Typically, []
cases recognizing such offenses involve statutes that regulate
potentially harmful or injurious items.” Id. (quoting Gypsum,
438 U.S. at 437). But public welfare offenses have “almost
uniformly involved statutes that provided for only light penalties
such as fines or short jail sentences.” Id. at 616. The Court in
                                 5

Staples rejected labeling a statute imposing a ten year prison
term as a public welfare offense, noting that “[h]istorically, the
penalty imposed under a statute has been a significant
consideration in determining whether the statute should be
construed as dispensing with mens rea.” Id.

     In sum, these traditional rules of statutory interpretation
apply, except that silence is not evidence of an absence of a
mens rea requirement (at least where the conduct at issue is
otherwise innocent). Silence does, however, provide such
evidence where the public welfare offense exception applies.
Together these three rules suggest that if neither of the first two
rules are able to supply a mens rea, then the statute will fall
within the third category of public welfare offenses.2 Except
when, as here, it does not.

                                A.
     To date, the three interpretative rules have worked in
tandem in Supreme Court precedent to counsel for or against
requiring proof of mens rea. For example, in construing
whether the criminal provisions of the Sherman Antitrust Act
required proof of mens rea, the Court in Gypsum noted that,
although the Act contained no “mention of intent or state of
mind,” 438 U.S. at 438, “the behavior proscribed by the Act is
often difficult to distinguish from the gray zone of socially
acceptable and economically justifiable business conduct,” id.
at 440-41. The Court thus concluded proof of mens rea was
required, in light of the “generally inhospitable attitude to non-
mens rea offenses.” Id. at 438.




        2
         There are a few other narrow categories not relevant here.
See post at 20 n.10 (Kavanaugh, J., dissenting).
                               6

     Likewise, in Liparota, the Court considered a statute
imposing up to five years imprisonment for unlawfully acquiring
and possessing food stamps, 7 U.S.C. § 2024(b)(1), see
Liparota, 471 U.S. at 420-21. The statute in Liparota included
an explicit mens rea with respect “to some element of the
crime,” but was unclear how far through the statute the word
“knowingly” traveled. Id. at 424. The Court concluded proof of
mens rea was required because “to interpret the statute
otherwise would be to criminalize a broad range of apparently
innocent conduct.” Id. at 426. Likewise, the Court rejected the
contention that the statute was a public welfare offense, because
food stamps were far from “a type of conduct that a reasonable
person should know is subject to stringent public regulation and
may seriously threaten the community's health or safety.” Id. at
433.

     The Court in Staples was presented with a statute
criminalizing possession of unregistered firearms, including
machineguns, with punishment of up to ten years’ imprisonment,
26 U.S.C. § 5861(d); id. § 5845(a)(6), see Staples, 511 U.S. at
602-03. Although the statute contained no explicit mens rea to
“travel” through the subsection, the Court rejected the
Government's argument that the provision was a public welfare
offense, noting the “long tradition of widespread lawful gun
ownership by private individuals in this country.”

         Of course, we might surely classify certain categories
         of guns — no doubt including the machineguns,
         sawed-off shotguns, and artillery pieces that Congress
         has subjected to regulation — as items the ownership
         of which would have the same quasi-suspect character
         we [have previously attributed to public welfare
         offenses.] But precisely because guns falling outside
         those categories traditionally have been widely
         accepted as lawful possessions, their destructive
                                7

         potential[] . . . cannot be said to put gun owners
         sufficiently on notice of the likelihood of
         regulation . . . .

Id. at 611-12.

    The Court also observed that because “any semiautomatic
weapon may be converted, either by internal modification or, in
some cases, simply by wear and tear, into a machinegun within
the meaning of the Act,” id. at 615, imposing strict liability
“potentially would impose criminal sanctions on a class of
persons whose mental state — ignorance of the characteristics
of weapons in their possession — makes their actions entirely
innocent,” id. at 614-15. Finally, the Court concluded that the
“harsh” ten years’ imprisonment imposed by the statute,
combined with the otherwise innocent nature of the conduct,
meant the statute was not a public welfare offense and that it
required proof of mens rea. Id. at 616, 618-19.

     Similarly, in X-Citement Video, the Court considered a
statute prohibiting “the interstate transportation, shipping,
receipt, distribution, or reproduction of visual depictions of
minors engaged in sexually explicit conduct,” 513 U.S. at 65–66
(citing 18 U.S.C. § 2252). The statute contained the mens rea
“knowingly,” but it was unclear whether it should “travel”
through the entire subsection to require proving the defendant
knew the age of the person depicted in the video. Id. at 68. The
Court concluded that the mens rea traveled through the entire
subsection, noting that the age of the person depicted in the
video was “the crucial element separating legal innocence from
wrongful conduct.” Id. at 73. Furthermore, the Court concluded
the statute was not a public welfare offense because “persons do
not harbor settled expectations that the contents of magazines
and film are generally subject to stringent public regulation” and
the “harsh penalt[y]” of “up to 10 years in prison” counseled
                                  8

against the statute being a strict liability public welfare offense.
Id. at 71-72.

                                  B.
     The analysis in Dean v. United States, 556 U.S. 568 (2009),
might at first glance suggest a conflict among the three rules, but
it too is consonant with them. The Court held that 18 U.S.C. §
924(c)(1)(A)(iii) does not require proof of mens rea. That
subsection provides that if the firearm present during a violent
or drug trafficking crime “is discharged,” the defendant shall “be
sentenced to a term of imprisonment of not less than 10 years.”
18 U.S.C. § 924(c)(1)(A)(iii). This provision, unlike the ones
considered by the Court in the previously discussed cases, was
a sentencing factor rather than an offense element. Dean, 556
U.S. at 571, 574. The Court noted that it “ordinarily resist[s]
reading words or elements into a statute that do not appear on its
face,” id. at 572 (internal quotation marks and citation omitted),
highlighted that the passive voice of the statute “focuses on an
event . . . without respect to any actor's intent or culpability,” id.,
and compared the provision with another provision of the statute
that did include a mens rea: the “brandishing” provision, 18
U.S.C. § 924(c)(1)(A)(ii), see Dean, 556 U.S. at 572-73.
Applying the tools of statutory construction, the Court declined
to “contort[] and stretch[] the statutory language to imply an
intent requirement.” Id. at 574.

     Upon concluding that the text and structure of the statute
did not support requiring proof of mens rea, the Supreme Court
turned to the defendant's contention that the presumption of
mens rea should apply. The Court rejected the applicability of
the presumption, reasoning that the presumption line of cases
involved situations where the conduct at issue would be
innocent if the facts were as the defendant believed them. “It is
unusual to impose criminal punishment for the consequences of
purely accidental conduct. But it is not unusual to punish
                                9

individuals for the unintended consequences of their unlawful
acts.” Id. at 575 (emphasis in original) (citing, inter alia, 4 W.
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
26-27 (1769)). The Court noted that “the defendant [was]
already guilty of unlawful conduct twice over: a violent or drug
trafficking offense and the use, carrying, or possession of a
firearm in the course of that offense.” Id.

     Thus, neither of the first two interpretative rules —
grammatical rules of statutory construction nor the presence of
otherwise innocent conduct — counseled in favor of requiring
proof of mens rea, and the Court thus held that no such proof
was required. Id. at 577. In so holding, the Court did not,
however, classify the provision as a public welfare offense. Nor
did it frame the question before it as a choice between offenses
that have mens rea requirements and public welfare offenses that
do not. See id. at 580 (Stevens, J., dissenting); Staples, 511 U.S.
at 606 (describing public welfare offenses as exception to rule
that congressional silence as to mens rea is not read to mean
Congress intended to dispense with requirement). This
departure from the usual understanding of the public welfare
offenses as being among the “few narrowly delineated
exceptions,” Dean, 556 U.S. at 580 (Stevens, J., dissenting), is
explained by the fact that the “discharge” provision at issue in
Dean was not an “offense” at all, and thus the public welfare
offense exception, and its general limitation to statutes with
minor punishments, see Staples, 511 U.S. at 616, did not
influence the Court's conclusion that the “discharge” provision
required no proof of mens rea despite its ten year mandatory
prison term. Instead, the provision was a sentencing factor,
which “involve[s] special features of the manner in which a
basic crime was carried out.” Id. at 574 (internal quotation
                                   10

marks, citation, and alteration omitted).3 Because the public
welfare offense precedent was inapplicable to the sentencing
factor at issue in Dean, the Court had no occasion to decide
whether it was creating a new type of strict liability crime,
outside the traditional conception of public welfare offenses.
The general purpose of sentencing factors is to increase
punishment for a proven offense. See Almendarez-Torres v.
United States, 523 U.S. 224, 228 (1998). Because the provision
did not deal with an offense, the Court merely had to apply the
traditional tools of statutory construction, including the
presumption of mens rea for statutes that risk criminalizing
otherwise innocent conduct.4


        3
               Justice Sevens disagreed with the Court's implicit
conclusion that the distinction between a provision's status as an
element or a sentencing factor was relevant to whether a provision
must fit within the definition of a public welfare offense in order to be
a strict liability offense. See id. at 580-81 (Stevens, J., dissenting).
        4
             This discussion of Dean suggest a different conclusion
than that the “discharge” provision's status as a sentencing factor,
rather than an element, is “the crucial distinction,” post at 27
(Kavanaugh, J., dissenting), between Dean and the instant case
regarding the operation of the mens rea presumption. Dean, after all,
first seemed controlling given the Court's analysis of the statutory text
and the fact that the machinegun provision, like the one in Dean, does
not risk criminalizing otherwise innocent conduct. If the sentencing
factor status were critical to the conclusion in Dean that the mens rea
presumption did not apply, one would expect the Supreme Court to
have said so in rejecting application of the presumption. Instead the
Court explained at length that the presumption did not apply because
the conduct at issue was not otherwise innocent. See Dean, 556 U.S.
at 574-77. As the analysis in Dean suggests, there is no rule
preventing the presumption in favor of mens rea, where the statute
risks criminalizing otherwise innocent conduct, from applying to
sentencing factors. But even reading the Court's rejection of the mens
                                  11

                                  C.
     In the case before the court today, the interpretative rules,
in their present form, cannot provide the answer to whether the
machinegun provision requires proof of mens rea. Section
924(c)(1)(B)(ii) has no explicit mens rea to “travel” through the
subsection, and it does not risk criminalizing “entirely innocent”
conduct. Thus neither of these two rules counsel in favor of
requiring proof of mens rea. But nor do they necessarily require
imposition of strict liability either. The narrow exception to the
rule favoring proof of mens rea, the public welfare offense
exception, does not apply — the Supreme Court has concluded
that firearm statutes do not fit within the type of crimes
contemplated by the public welfare exception, see Staples, 511
U.S. at 611-12, and has suggested that the exception has been
generally limited to statutes with minor penalties, id. at 616,
618-19. Section 924(c)(1)(B)(ii) would represent an entirely
new category of strict liability for offense elements — one that
imposes a sentence magnitudes larger than any of the statutes in
the relevant cases the Court has previously considered.

     In this uncharted territory, courts reasonably rely on clues
from relevant Supreme Court case law. Taking the word
“element” in Flores-Figueroa's description of the first rule
(despite the context indicating a grammatical rule, as opposed to
a distinction between “elements” and “sentencing factors”), 556
U.S. at 652, and combining it with a dissected phrase from the
second rule, Judge Kavanaugh concludes: “the presumption of
mens rea means that, unless Congress plainly indicates
otherwise, the Government must prove the defendant's mens rea


rea presumption rule in Dean to turn on the “discharge” provision's
status as a sentencing factor, it would not necessarily follow that the
mens rea presumption always applies to statutory elements, regardless
of whether the statute does not risk criminalizing otherwise innocent
conduct.
                                  12

for each element of the offense,” post at 2 (Kavanaugh, J.,
dissenting), regardless of whether that “element” is anywhere
near an explicit mens rea, or whether the statute risks
criminalizing otherwise innocent conduct. It may be somewhat
of a stretch to take half of one inapplicable rule, plus half of
another inapplicable rule, and declare it to be the “established
and applied [] rule,” id. at 20, governing Burwell’s case.

     Rather than setting out a new rule such as this, which the
majority fears potentially sweeps into its ambit a host of other
applications, see ante at 13-15 (Brown, J., majority op.), this
case can be resolved on a narrower ground. The Supreme Court
in Staples stated that “[h]istorically, the penalty imposed under
a statute has been a significant consideration in determining
whether the statute should be construed as dispensing with mens
rea.” 511 U.S. at 616 (emphasis added). Although this
statement was made in the context of holding that the public
welfare exception was inapplicable, there is no obvious reason
to limit the relevance of this consideration to determining
whether that exception applies to impose strict liability. If an
offense must have a minor punishment to be a public welfare
offense, and in so limiting that category the Court was
concerned with protecting the background principle disfavoring
non-mens rea crimes, then the presence of a “severe penalty,” id.
at 618, should not, without an express statement by Congress,
portend a new category of strict liability crimes.

     The majority characterizes this conclusion as “broaden[ing]
the reach of existing precedent . . . [because] [i]n Staples, . . . the
Court's consideration of the severity of the penalty was
decidedly narrow.” Ante at 24-25 (Brown, J., majority op.).
Although the Court in Staples declined to adopt “a definitive
rule of construction to decide [that] case,” 511 U.S. at 618, the
Court was not discussing the general relevance of the severity of
a punishment to whether a statute requires proof of mens rea.
                               13

Instead the Court was considering whether “absent a clear
statement from Congress that mens rea is not required, [courts]
should not apply the public welfare offense rationale to interpret
any statute defining a felony offense as dispensing with mens
rea.” Id. (emphasis added). The Court was not commenting on
whether the severity of the penalty imposed is broadly relevant
to the mens rea question outside the context of public welfare
offenses, but simply declining to establish a rule definitively
limiting the four-corners of public welfare offenses to exclude
felonies.

     Understood as an independent consideration, rather than as
one tethered to the definition of a public welfare offense, the
length of the punishment imposed by a statute must be
considered in light of the purpose of the mens rea presumption
and whether it is rebutted where the statute does not, as the
interpretive rule has been defined, criminalize otherwise
innocent conduct. In the context of statutes that, absent a
showing of mens rea, risked criminalizing otherwise innocent
conduct, the Supreme Court has described a punishment of ten
years' imprisonment as “harsh” and “severe.” Staples, 511 U.S.
at 616, 618; X-Citement Video, 513 U.S. at 72. “In such a case,
the ususal presumption that a defendant must know the facts that
make his conduct illegal should apply.” Staples, 511 U.S. at
619. But where the traditional presumption of mens rea does
not apply because the conduct prohibited is not, in the absence
of intent, otherwise innocent, a ten-year penalty may not be so
harsh as to require more than congressional silence to dispose of
the mens rea requirement. See, e.g., ante at 15 (Brown, J.,
majority op.) (citing 18 U.S.C. § 2113, which increases
maximum term of imprisonment for certain bank robbery
offenses from one to ten years when value of stolen property,
money, or thing of value exceeds $1,000); cf. Carter v. United
States, 530 U.S. 255, 272–73 (2000).
                                14

       Without deciding how the interpretative rules might unfold
in a case with a different statutory punishment, I would take my
lead from Staples and hold that the mandated thirty-year
consecutive term of imprisonment imposed by section
924(c)(1)(B)(ii) is so severe that it outweighs the fact that the
conduct prohibited is not otherwise totally innocent. In O’Brien,
the Supreme Court defined the section 924(c)(1)(B)(ii) offense
in terms of the automatic firing characteristic of the firearm, see
130 S. Ct. at 2172, given “[t]he immense danger” and “moral
depravity in choosing the weapon,” id. at 2178. Congress has
determined that possessing a machinegun “during and in relation
to any crime of violence or drug trafficking crime,” 18 U.S.C. §
924(c)(1)(A), warrants twenty years’ additional imprisonment
over such possession of a semi-automatic assault weapon,
compare id. § 924(c)(1)(B)(i), with id. § 924(c)(1)(B)(ii). A
leading commenter has observed that the hostility to strict
liability for crimes protects a defendant “unaware of the
magnitude of the wrong he is doing,” WAYNE R. LAFAVE,
CRIMINAL LAW 304 (5th ed. 2010) (emphasis added); see post at
31 (Kavanaugh, J., dissenting); ante at 1 (Sentelle, C.J.,
concurring) (“I do not think it good enough to posit that someone
should know conduct is illegal and therefore avoid it where the
illegality of the conduct may be measured in degrees.”). The
Court’s observation in Staples, 511 U.S. at 614-15, is directly on
point: “The Government does not dispute . . . that virtually any
semiautomatic weapon may be converted . . . into a machinegun
. . . . Such a gun may give no externally visible indication that
it is fully automatic. But in the Government’s view, any person
. . . can be subject to imprisonment, despite absolute ignorance
of the gun’s firing capabilities, if the gun turns out to be
automatic.” (internal citations omitted). For punishment, then,
of an additional twenty-years’ imprisonment for possessing an
automatic, rather than a semi-automatic, firearm, neither silence,
nor mere use of a passive voice or the meaning of surrounding
provisions, see Dean, 556 U.S. at 572-74, are sufficient to rebut
                                15

the traditional mens rea requirement for criminal offenses, and
the Government must prove a defendant knew the firearm he
possessed was a machinegun in order to obtain a conviction
under section 924(c)(1)(B)(ii).

     This is not, as the majority charges, an “unbounded”
approach, ante at 30 (Brown, J., majority op.); instead it is bound
quite tightly by the uniquely severe mandatory term of
consecutive imprisonment, as demonstrated by the dearth of
cases considering whether proof of mens rea is required in the
face of such severe punishment as section 924(c)(1)(B)(ii)
mandates. Nor is it unusual, or posing a risk of “spillover,” for
courts to balance competing considerations that point in opposite
directions; this is what courts usually do anytime they are faced
with a question informed by more than one consideration. Cf.
United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008)
(observing that “the [Supreme] Court has developed unique
policy and historical tests that complement, and sometimes work
to modify, the most straightforward reading of the [statutory]
language and structure.”). Indeed the majority does some
balancing of its own for, as Judge Kavanaugh points out, see post
at 37, by requiring proof of knowledge with respect to the use,
carrying, or possession of a firearm under section 924(c), see
ante at 5, 12 (Brown, J., majority op.), the majority itself does
not limit the presumption solely to statutes that risk criminalizing
otherwise innocent conduct — section 924(c) is only triggered
upon conviction for a “crime of violence or drug trafficking
crime.” I take the Supreme Court at its word when it stated that
“the penalty imposed by a statute has been a significant
consideration in determining whether the statute should be
construed as dispensing with mens rea,” Staples, 511 U.S. at 616
(emphasis added). It hardly seems a better solution to ignore
that consideration in an effort to avoid balancing it against
competing concerns, particularly when the Supreme Court has
concluded that the “choosing” of a machinegun under section
                               16

924(c)(1)(B)(ii) involves “moral depravity,” O’Brien, 130 S. Ct.
at 2178, and that mens rea is designed to protect a defendant
against the risk of a more severe punishment by possessing a
firearm that may appear physically indistinguishable from one to
which Congress has attached a far lesser penalty, see Staples,
511 U.S. at 614-15. Finally, the majority’s critique, see ante at
30 (Brown, J., majority op.), that this approach goes beyond what
the court has previously “proposed” is meaningless given that,
absent en banc review, three-judge panels acting as the court
have been bound by Harris. See LaShawn A. v. Barry, 87 F.3d
1389, 1395 (D.C. Cir. 1996) (en banc).

     Accordingly, I would vacate the judgment of conviction of
Burwell under 18 U.S.C. § 924(c)(1)(B)(ii), and I respectfully
dissent.
    KAVANAUGH, Circuit Judge, with whom Circuit Judge
TATEL joins, dissenting: The presumption of mens rea
embodies deeply rooted principles of law and justice that the
Supreme Court has emphasized time and again. The
presumption of mens rea is no mere technicality, but rather
implicates “fundamental and far-reaching” issues, as this case
well illustrates. Cf. Morissette v. United States, 342 U.S. 246,
247 (1952).

    Under Section 924(c) of Title 18, a person who commits
a robbery while carrying a semi-automatic gun faces a
mandatory minimum sentence of 10 years. A person who
commits a robbery while carrying an automatic gun is guilty
of a more serious offense and faces a mandatory minimum
sentence of 30 years. Congress specifically determined that
carrying an automatic rather than semi-automatic gun during a
robbery warrants an extra 20 years of mandatory
imprisonment. 1



     1
        An automatic weapon, also referred to as a machine gun,
“fires repeatedly with a single pull of the trigger. That is, once its
trigger is depressed, the weapon will automatically continue to fire
until its trigger is released or the ammunition is exhausted.” Staples
v. United States, 511 U.S. 600, 602 n.1 (1994). A semi-automatic
weapon, by contrast, “requires no manual manipulation by the
operator to place another round in the chamber after each round is
fired” but “fires only one shot with each pull of the trigger.” Id.
The two kinds of weapons may appear externally similar if not
identical. Moreover, “virtually any semiautomatic weapon may be
converted, either by internal modification or, in some cases, simply
by wear and tear, into a machinegun . . . . Such a gun may give no
externally visible indication that it is fully automatic.” Id. at 615.
The Supreme Court has stated that in certain circumstances,
therefore, an individual might “genuinely and reasonably” believe
that he possesses “a conventional semi-automatic” weapon when in
fact the weapon is fully automatic. Id. (citation omitted).
                              2
    The majority opinion holds that a person who committed
a robbery while carrying an automatic gun – but who
genuinely thought the gun was semi-automatic – is still
subject to the 30-year mandatory minimum sentence. The
majority opinion thus gives an extra 20 years of mandatory
imprisonment to a criminal defendant based on a fact the
defendant did not know.

     In my view, that extraordinary result contravenes the
traditional presumption of mens rea long applied by the
Supreme Court. Like many federal criminal statutes, this
Section 924(c) offense contains no express mens rea
requirement. But the presumption of mens rea means that,
unless Congress plainly indicates otherwise, the Government
must prove the defendant’s mens rea for each element of the
offense.    And the Supreme Court has recently and
unanimously ruled that the automatic character of the gun is
an element of the Section 924(c) offense. See United States v.
O’Brien, 130 S. Ct. 2169 (2010). Therefore, in this case, the
Government should have been required to prove that Burwell
knew the gun was automatic in order to convict him under
Section 924(c).

     Several factors strongly reinforce the presumption of
mens rea here. The Supreme Court has emphasized the
particular importance of the presumption when penalties are
high – a characterization the Court has applied to statutory
maximum sentences of one year’s imprisonment. Here, the
punishment is dramatically more severe than that – 20 extra
years of mandatory prison time. Under the Supreme Court’s
precedents, that heavy sanction strongly reinforces the
presumption of mens rea. Moreover, the Supreme Court has
already applied the presumption to the automatic character of
a gun. In Staples v. United States, 511 U.S. 600 (1994), the
Court addressed a statute that prohibited possession of an
                               3
unregistered automatic gun and imposed a maximum sentence
of 10 years’ imprisonment. The statute was silent about mens
rea. The Court held that the Government had to prove that the
defendant knew the automatic character of the weapon. There
is no good reason for a different result in this case: Here, too,
the Government should have to prove that the defendant knew
the automatic character of the weapon.

    The majority opinion sidesteps the presumption of mens
rea by treating the automatic character of the gun as if it’s a
sentencing factor, not an element of the Section 924(c)
offense. But in O’Brien, the Supreme Court held that the
gun’s automatic character is an element of the Section 924(c)
offense, not a sentencing factor. 130 S. Ct. 2169. The
O’Brien decision matters here because the Supreme Court has
repeatedly stated that the presumption of mens rea applies to
elements of the offense, albeit not to sentencing factors. See
Staples, 511 U.S. 600 (element of the offense case); Dean v.
United States, 129 S. Ct. 1849 (2009) (sentencing factor
case). Because the automatic character of the gun is an
element of the Section 924(c) offense, the presumption of
mens rea applies in this case.

     The majority opinion alternatively concludes that the
presumption of mens rea applies to some elements of the
offense, but not to others. In particular, the majority opinion
states that the presumption of mens rea applies only when
necessary to avoid criminalizing apparently innocent conduct
– that is, when the conduct would be innocent if the facts
were as the defendant believed. But the Supreme Court has
never limited the presumption of mens rea in that fashion.
The presumption of mens rea applies to each element of the
offense. The presumption applies both when necessary to
avoid criminalizing apparently innocent conduct (when the
defendant would be innocent if the facts were as the defendant
                                4
believed) and when necessary to avoid convicting the
defendant of a more serious offense for apparently less
serious criminal conduct (that is, when the defendant would
receive a less serious criminal sanction if the facts were as the
defendant believed).

     In trying to cabin the presumption of mens rea so that it
applies only when necessary to avoid criminalizing apparently
innocent conduct, the majority opinion resurrects the
Government’s argument in the recent Flores-Figueroa v.
United States case. But the Government’s submission
garnered zero votes in the Supreme Court. See 129 S. Ct.
1886 (2009). With good reason. It would be illogical in the
extreme to apply the presumption of mens rea to an element
of the offense that would, say, increase the defendant’s
punishment from no prison time to a term of 2 years in prison,
but not to apply the presumption of mens rea to an element of
the offense that would aggravate the defendant’s crime and
increase the punishment from 10 years to 30 years. As
Professor LaFave has crisply stated, such an approach would
be “unsound, and has no place in a rational system of
substantive criminal law.” WAYNE R. LAFAVE, CRIMINAL
LAW 305 (5th ed. 2010). 2

    In my view, the majority opinion is seriously mistaken
because it does not properly account for the twin lines of
Supreme Court precedent that dictate the result here: The
presumption of mens rea applies to each element of the
offense, and the automatic character of the gun is an element

    2
       To be clear, I would reach the same result in this case even
without Flores-Figueroa on the books. The majority opinion is
therefore wrong to say that Flores-Figueroa is the “lever” on which
I am relying. Maj. Op. at 28. Rather, Flores-Figueroa simply
confirms and reinforces the approach indicated by a long line of
Supreme Court precedents.
                                 5
of the Section 924(c) offense. Twenty extra years of
mandatory imprisonment hangs in the balance. I respectfully
but emphatically dissent.

                                  I

     Criminal liability traditionally requires both a guilty act
and a guilty mind, referred to as actus reus and mens rea.
This case concerns mens rea. We separately analyze the mens
rea requirements of a criminal statute for each element of the
offense. See United States v. Bailey, 444 U.S. 394, 406
(1980) (“Clear analysis requires that the question of the kind
of culpability required to establish the commission of an
offense be faced separately with respect to each material
element of the crime.”) (quoting Model Penal Code) (brackets
omitted). 3

    3
       An element of the offense is a “fact necessary to constitute
the crime.” Almendarez-Torres v. United States, 523 U.S. 224, 240
(1998) (citation omitted). “Characteristics of the offense itself are
traditionally treated as elements . . . .” United States v. O’Brien,
130 S. Ct. 2169, 2176 (2010). The elements of the offense are
often distilled into three categories: the defendant’s conduct, the
attendant circumstances, and the results or consequences. See
MODEL PENAL CODE § 1.13(9) (Official Draft & Revised
Comments 1985); WAYNE R. LAFAVE, CRIMINAL LAW 8-12 (5th
ed. 2010).
     This case concerns whether the presumption of mens rea
applies. If the presumption of mens rea applies, a subsidiary
question is what level of mens rea is required. When Congress does
not specify a mens rea, courts apply the presumption of mens rea
and generally state that either purpose or knowledge suffices with
respect to the elements of the offense: the defendant’s conduct, the
attendant circumstances, and the consequences of the crime. See
Bailey, 444 U.S. at 408 (“[T]he cases have generally held that,
except in narrow classes of offenses, proof that the defendant acted
knowingly is sufficient to support a conviction.”); see also, e.g.,
                                6
      An element of an offense is said to impose strict liability
if it does not require any proof of the defendant’s mens rea
(i.e., mental state) for that element. Cf. Staples v. United
States, 511 U.S. 600, 607 n.3 (1994). Strict liability means
that the defendant’s ignorance or mistake of fact does not
relieve the defendant of criminal liability. For example,
consider a statute that criminalizes possession of stolen
property. Under strict liability, a defendant would be guilty
even if he genuinely did not know that the property he
possessed was stolen (or that he possessed it at all). Or
consider a statute that criminalizes fishing in prohibited areas.
Under strict liability, a defendant would be guilty even if she
genuinely did not realize that she was fishing in a prohibited
area. Or consider an example the Supreme Court gave in
Staples. Congress might make it a crime to operate a car with
emissions above a certain limit. Under strict liability, a
defendant would be guilty even if his “vehicle’s emissions
levels, wholly unbeknownst to him, began to exceed legal
limits between regular inspection dates.” Id. at 614.


Carter v. United States, 530 U.S. 255, 269-70 (2000) (in
determining what level of mens rea – whether purpose or
knowledge – to apply in a case where the defendant’s conduct
would be innocent if the facts were as he believed, the
“presumption in favor of scienter requires a court to read into a
statute only that mens rea which is necessary to separate wrongful
conduct from otherwise innocent conduct”) (internal quotation
marks omitted); Staples v. United States, 511 U.S. 600, 619 (1994)
(knowledge); Posters ‘N’ Things, Ltd. v. United States, 511 U.S.
513, 523-24 (1994) (knowledge); United States v. U.S. Gypsum
Co., 438 U.S. 422, 444 (1978) (knowledge).
     Therefore, if the presumption of mens rea applies to this
statute, the Government should be required to prove that the
defendant at least knew the automatic character of the gun. See
Staples, 511 U.S. at 619 (similarly requiring knowledge of
automatic character of gun).
                               7
     Strict liability in criminal law is harsh and in serious
tension with deeply rooted principles of justice and
responsibility. See United States v. O’Mara, 963 F.2d 1288,
1293 (9th Cir. 1992) (Kozinski, J., concurring). As a result,
strict liability is extremely disfavored in the criminal laws of
the United States. One commentator described the objection
to strict liability for individual criminal punishment in words
that have been often repeated:

    The consensus can be summarily stated: to punish
    conduct without reference to the actor’s state of mind is
    both inefficacious and unjust. It is inefficacious because
    conduct unaccompanied by an awareness of the factors
    making it criminal does not mark the actor as one who
    needs to be subjected to punishment in order to deter him
    or others from behaving similarly in the future, nor does
    it single him out as a socially dangerous individual who
    needs to be incapacitated or reformed. It is unjust
    because the actor is subjected to the stigma of a criminal
    conviction without being morally blameworthy.
    Consequently, on either a preventive or a retributive
    theory of criminal punishment, the criminal sanction is
    inappropriate in the absence of mens rea.

Herbert L. Packer, Mens Rea and the Supreme Court, 1962
SUP. CT. REV. 107, 109.

     The fundamental question we confront here is how to
interpret federal criminal statutes that are silent about mens
rea. Like many federal criminal statutes, Section 924(c) does
not expressly require proof of the defendant’s mens rea for
this offense. In particular, the statute does not expressly
require proof that the defendant knew the weapon was
automatic in order for the defendant to be convicted of the
automatic weapon offense in Section 924(c).
                                8
     The ordinary approach to statutory interpretation requires
that we adhere to the text of the statute. See, e.g., Milner v.
Dep’t of the Navy, 131 S. Ct. 1259 (2011); Central Bank of
Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164 (1994). At first blush, therefore, one might think
courts should hold that there is strict liability whenever a
statute is silent about mens rea – and thus that there is strict
liability for all the elements of the Section 924(c) offense.
Under that scenario, the Government wouldn’t have to prove
that the defendant in a Section 924(c) case even knew he had
a gun – much less knew the gun was an automatic – in order
to convict him of this Section 924(c) offense.

     But the Supreme Court interprets statutes in light of
traditional canons of construction. To take two well-known
examples, the Supreme Court has long applied a presumption
against extraterritoriality and a presumption against
retroactivity. See, e.g., Morrison v. National Australia Bank
Ltd., 130 S. Ct. 2869, 2877-78 (2010) (Scalia, J., for the
Court) (extraterritoriality); Landgraf v. USI Film Products,
511 U.S. 244, 265-68 (1994) (retroactivity); id. at 286-88
(Scalia, J., concurring in judgment) (retroactivity).

     Similarly, the Supreme Court has long applied a
presumption of mens rea for criminal statutes. See, e.g.,
Staples, 511 U.S. at 605-06 (Thomas, J., for the Court). Like
other traditional canons, the presumption of mens rea
constitutes a sturdy background principle against which
Congress legislates and against which courts interpret
statutes. 4


    4
        “[I]n the absence of clear congressional direction to the
contrary, textualists read mens rea requirements into otherwise
unqualified criminal statutes because established judicial practice
calls for interpreting such statutes in light of common law mental
                                 9
     The presumption of mens rea applied by the Supreme
Court stands on a bedrock historical foundation. The
American legal tradition, as well as the English common-law
tradition on which it was built, has long required proof of the
defendant’s mens rea as a pre-condition for imposing criminal
liability. The “existence of a mens rea is the rule of, rather
than the exception to, the principles of Anglo-American
criminal jurisprudence.” Id. at 605 (citation omitted); see 1
JOEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL
LAW § 227 (2d ed. 1858) (“the essence of an offence is the
wrongful intent, without which it cannot exist”); 4 WILLIAM
BLACKSTONE, COMMENTARIES *21 (1769) (“to constitute a
crime against human laws, there must be, first, a vicious
will”); 3 EDWARD COKE, INSTITUTES OF THE LAWS OF
ENGLAND 6, 107 (London, E. & R. Brooke 1797) (1644)
(“actus non facit reum, nisi mens sit rea”; that is, an act does
not make a person guilty unless the mind is guilty); FRANCIS
BACON, THE ELEMENTS OF THE COMMON LAWES OF ENGLAND
65 (London, I. More 1630) (1596) (“All crimes have their
conception in a corrupt intent”). 5




state requirements.” John F. Manning, The Absurdity Doctrine, 116
HARV. L. REV. 2387, 2466 (2003).
     5
        Traditionally, knowledge of the law, as opposed to
knowledge of the facts, was not required. But given the modern
trend toward criminalization of actions that are not inherently evil
(not “malum in se,” to use the Latin phrase), modern statutes
sometimes also require proof of the defendant’s knowledge of the
law. See Cheek v. United States, 498 U.S. 192, 199-204 (1991)
(requiring Government to prove defendant’s knowledge of law to
obtain criminal tax conviction); United States v. Moore, 612 F.3d
698, 703-04 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (criminal
statutes penalizing “willful” violations require proof of defendant’s
knowledge of law).
                               10
     The Supreme Court added to that historical foundation
when it decided the landmark case of Morissette v. United
States, 342 U.S. 246 (1952). Morissette had taken what he
thought were abandoned bomb casings from uninhabited land
in rural Michigan. Turned out that the casings were
government property. The Government charged Morissette
with illegally converting (that is, taking and disposing of)
government property even though he had thought the casings
were abandoned. The relevant statute provided: “Whoever
embezzles, steals, purloins, or knowingly converts to his use
or the use of another . . . any record, voucher, money, or thing
of value of the United States” shall be punished by fine or
imprisonment. 18 U.S.C. § 641 (1952); see Morissette, 342
U.S. at 248 n.2. The word “knowingly” in its isolated
position suggested that it attached only to the verb “converts,”
and not to the fact that the property belonged to someone else
(there, the Government).

    The Government argued that federal criminal statutes are
to be read literally and that Morissette was therefore guilty
even if he truly thought that the casings were abandoned.
When a statute does not explicitly contain a mens rea
requirement, there is none – or so the Government argued.

     The Morissette Court held otherwise: Such “adoption of
the literal reasoning . . . would sweep out of all federal crimes,
except when expressly preserved, the ancient requirement of a
culpable state of mind” – a result that would be “inconsistent
with our philosophy of criminal law.” 342 U.S. at 250. The
Court invoked the background presumption of mens rea to
conclude that the term “knowingly” also required proof that
the defendant knew that the property belonged to someone
else.
                                 11
     Justice Jackson authored the Court’s opinion in
Morissette. Justice Jackson was of course “intimately
familiar with the corruption of the criminal process in a
totalitarian society.” Packer, Mens Rea and the Supreme
Court, 1962 SUP. CT. REV. at 119. And in Morissette, Justice
Jackson forcefully described the critical link between human
liberty and mens rea requirements. He explained that mens
rea in criminal law “is as universal and persistent in mature
systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to
choose between good and evil.” 342 U.S. at 250. The
concept, indeed, “is almost as instinctive as the child’s
familiar exculpatory ‘But I didn’t mean to.’” Id. at 251.

     Although some might have thought Morissette’s case
“profoundly insignificant,” Justice Jackson recognized the
“fundamental and far-reaching” mens rea issues at stake. Id.
at 247. Justice Jackson saw the wolf in sheep’s clothing:
“The Government asks us by a feat of construction radically
to change the weights and balances in the scales of justice.
The purpose and obvious effect of doing away with the
requirement of a guilty intent is to ease the prosecution’s path
to conviction, to strip the defendant of such benefit as he
derived at common law from innocence of evil purpose, and
to circumscribe the freedom heretofore allowed juries.” Id. at
263. 6

     6
       Better than most, Justice Jackson could spot wolves in
sheep’s clothing. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 638 (1952) (Jackson, J., concurring) (“Presidential claim
to a power at once so conclusive and preclusive must be scrutinized
with caution, for what is at stake is the equilibrium established by
our constitutional system.”); Korematsu v. United States, 323 U.S.
214, 246 (1944) (Jackson, J., dissenting) (“[O]nce a judicial opinion
rationalizes such an order to show that it conforms to the
Constitution, or rather rationalizes the Constitution to show that the
                                12
     Under the traditional presumption of mens rea as
expounded by Morissette, courts presume a mens rea
requirement for each element of the offense unless Congress
plainly indicates otherwise. See id. at 254 n.14 (presumption
may be overridden by “clear command” from Congress). 7

                                II

     The Supreme Court’s case law since Morissette illustrates
the force and breadth of the presumption of mens rea. The
Court has applied the presumption to statutes that are silent
about mens rea. The Court has likewise applied the
presumption to statutes that contain a mens rea requirement
for one element but are silent or ambiguous about mens rea
for other elements.

Constitution sanctions such an order, the Court for all time has
validated the principle of racial discrimination in criminal
procedure and of transplanting American citizens. The principle
then lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent
need.”); West Virginia State Board of Education v. Barnette, 319
U.S. 624, 642 (1943) (Jackson, J., for the Court) (“But freedom to
differ is not limited to things that do not matter much. That would
be a mere shadow of freedom.”).
     7
       The principle undergirding the presumption of mens rea is so
fundamental that the Supreme Court has held that, in some
circumstances, imposing criminal liability without proof of mens
rea is unconstitutional. See Lambert v. California, 355 U.S. 225,
228-30 (1957); see also United States v. X-Citement Video, Inc.,
513 U.S. 64, 78 (1994) (noting constitutional problems that can
ensue from strict liability). Some have asserted that when the
Constitution was ratified and the Sixth Amendment adopted, “part
of what was guaranteed to criminal defendants was the right to have
a jury decide whether they were morally blameworthy.” Ann
Hopkins, Mens Rea and the Right to Trial by Jury, 76 CALIF. L.
REV. 391, 397 (1988).
                                 13
    A detailed review of those precedents demonstrates that
the majority opinion in this case has jumped the rails.

     Following Morissette, the Supreme Court again stressed
the importance of the presumption of mens rea in United
States v. U.S. Gypsum Co., 438 U.S. 422 (1978). The case
concerned criminal liability under the Sherman Antitrust Act.
The text of the Sherman Act supplied no express mens rea
requirement. But the Court relied on Morissette and said that
it was “unwilling to construe the Sherman Act as mandating a
regime of strict-liability criminal offenses.” Id. at 436.

     As in Morissette, the Court in U.S. Gypsum grounded the
presumption in history and tradition. The Court recounted
“the familiar proposition that the existence of a mens rea is
the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.”           Id. (internal
quotation marks and brackets omitted).           Invoking that
background principle, the Court explained that it had “on a
number of occasions read a state-of-mind component into an
offense even when the statutory definition did not in terms so
provide.” Id. at 437 (emphasis added). “Certainly far more
than the simple omission of the appropriate phrase from the
statutory definition is necessary to justify dispensing with an
intent requirement.” Id. at 438. Indeed, the Court read
Morissette “as establishing, at least with regard to crimes
having their origin in the common law, an interpretative
presumption that mens rea is required.” Id. at 437. 8 The
Court stated, moreover, that the presumption was

    8
        The Supreme Court has since made clear that the
presumption of mens rea applies to all federal criminal statutes, not
just those defining crimes with roots in the common law. See
Carter v. United States, 530 U.S. 255, 268 n.6 (2000); Staples v.
United States, 511 U.S. 600, 605-06 (1994); id. at 620 n.1
(Ginsburg, J., concurring in judgment).
                               14
strengthened by the severity of the sanctions under the
Sherman Act – a maximum of 3 years’ imprisonment. See id.
at 442 n.18.

     In United States v. Bailey, 444 U.S. 394 (1980), the Court
applied the presumption to a statute punishing prison escape.
The law required the Government to prove that the prisoner
had escaped from custody. The statute did not contain any
express mens rea requirement, raising this question: Could a
prisoner be convicted of escape even if he genuinely but
mistakenly thought he had permission to leave – on a work
detail, for example? The Court embarked on an “element-by-
element analysis,” “dissecting” the statute and “assigning a
level of culpability to each element.” Id. at 406. Reiterating
that the omission of mens rea “does not mean, of course,” that
the statute “defines a ‘strict liability’ crime for which
punishment can be imposed without proof of any mens rea at
all,” the Court required proof of knowledge – proof that “an
escapee knew his actions would result in his leaving physical
confinement without permission.” Id. at 406 n.6, 408. In
other words, a defendant who genuinely but mistakenly
thought he had permission to leave could not be convicted
under the statute.

       In Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513
(1994), the statute provided: “It is unlawful for any person
. . . to make use of the services of the Postal Service or other
interstate conveyance as part of a scheme to sell drug
paraphernalia . . . .” 21 U.S.C. § 857(a) (1988); see 511 U.S.
at 516. The statute was silent as to mens rea. So the question
arose: Did the Government have to prove that the defendant
knew the possessed materials – a scale and pipe, for example
– were drug paraphernalia likely to be used with illegal drugs?
The Court said yes. “Certainly far more than the simple
omission of the appropriate phrase from the statutory
                             15
definition is necessary to justify dispensing with an intent
requirement.” 511 U.S. at 522 (citation omitted). Applying
the presumption of mens rea, the Court held that the statute
“requires the Government to prove that the defendant
knowingly made use of an interstate conveyance as part of a
scheme to sell items that he knew were likely to be used with
illegal drugs.” Id. at 524 (emphases added).

     The Court’s decision that same Term in Staples v. United
States, 511 U.S. 600 (1994), is particularly instructive here.
The statute at issue in Staples provided only: “It shall be
unlawful for any person . . . to receive or possess a firearm
which is not registered to him in the National Firearms
Registration and Transfer Record . . . .” 26 U.S.C. § 5861
(1994); see 511 U.S. at 605. The statutory definition of
“firearm” included automatic weapons, but not semi-
automatic weapons. See 511 U.S. at 602-04, 615. The statute
contained no express mens rea requirement.

     The question in Staples – very similar to the question in
our case – was whether the Government had to prove that the
defendant knew the gun was an automatic. The Court said
yes. The Court cited “the background rule of the common
law favoring mens rea” and noted that the rule applies to
statutory criminal offenses. Id. at 605-06, 619. According to
the Court, “some indication of congressional intent” to
dispense with mens rea is necessary before a court will find
strict liability. Id. at 606. The Court stated: “Silence does
not suggest that Congress dispensed with mens rea” for the
automatic weapon element. Id. at 619. The Court also
pointed out that the sentence involved – a statutory maximum
of 10 years’ imprisonment – further supported requiring proof
of mens rea. See id. at 616-19. As for what level of mens rea
was required, “knowledge” of “the facts that make his
conduct fit the definition of the offense” would suffice “to
                               16
establish mens rea.” Id. at 608 n.3. Therefore, “to obtain a
conviction, the Government should have been required to
prove that” the defendant “knew of the features of his AR-15
that brought it within the scope of the Act” – that is, knew that
the gun was an automatic. Id. at 619.

     In Carter v. United States, 530 U.S. 255 (2000), the law
in question punished taking bank property either by force and
violence or by intimidation. See id. at 259. The relevant
subsection of the statute had no express mens rea requirement.
Of course, it’s hard to imagine unknowingly taking property
by force and violence or by intimidation. But even so, the
Court still required proof of the defendant’s knowledge
because the statute “should not be interpreted to apply to the
hypothetical person who engages in forceful taking of money
while sleepwalking (innocent, if aberrant activity).” Id. at
269.

     In its long line of mens rea precedents, the Court has
applied the presumption of mens rea not just to statutes that
are silent about mens rea (such as those just discussed), but
also to statutes that contain a mens rea requirement for one
element but are silent or ambiguous about mens rea for other
elements.

    In Liparota v. United States, 471 U.S. 419 (1985), for
example, the Court considered a statute providing that
“whoever knowingly uses, transfers, acquires, alters, or
possesses coupons or authorization cards in any manner not
authorized by this chapter or the regulations” shall be fined or
imprisoned. 7 U.S.C. § 2024(b)(1) (1982); see 471 U.S. at
420 n.1. The Court had to decide how far the term
“knowingly” traveled down the sentence. Did the defendant
need to know that his use of food stamps was unauthorized?
The Court stated that the statutory text provided “little
                              17
guidance” and that either interpretation “would accord with
ordinary usage.” 471 U.S. at 424. Based on the presumption
of mens rea, the Court concluded: “Absent indication of
contrary purpose in the language or legislative history of the
statute, we believe that § 2024(b)(1) requires a showing that
the defendant knew his conduct to be unauthorized by statute
or regulations.” Id. at 425.

     In United States v. X-Citement Video, Inc., 513 U.S. 64
(1994), the Court followed a similar path. The Court there
interpreted a statute targeting distribution of child
pornography. The Court had to decide whether the statutory
mens rea “knowingly” applied not just to the transport of a
pornographic video or photo but also to the fact that a girl or
boy under age 18 appeared in the video or photo. See id. at
68.     As the Court acknowledged, the “most natural
grammatical reading” of the statute suggested that the mens
rea requirement did not apply to the fact that a girl or boy
under 18 was shown in the video or photo. Id. But the Court
rejected that plain-text reading as inconsistent with the
presumption of mens rea. The Court instead required proof
that the defendant knew that a girl or boy under 18 was
depicted. See id. at 70, 78.

     The Court’s recent decision in Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009), adhered to much the same
approach. The statute at issue in Flores-Figueroa applied to a
person who – while committing a listed predicate crime –
“knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person.” 18
U.S.C. § 1028A; see 129 S. Ct. at 1888-89. The Court
decided that “knowingly” applied not just to the fact of the
defendant’s possession or use of the fake identification card
but also to the fact that the identity on the card was “of
another person.” The Court reached its decision by relying in
                                18
part on the presumption of mens rea, which in that case meant
a strong default rule of statutory interpretation that applies
when there is an express mens rea as to one element of the
offense: “The manner in which the courts ordinarily interpret
criminal statutes is fully consistent with this ordinary English
usage. That is to say courts ordinarily read a phrase in a
criminal statute that introduces the elements of a crime with
the word ‘knowingly’ as applying that word to each element.”
129 S. Ct. at 1891. The Court further explained that its
decision was consistent with precedents, such as Liparota and
X-Citement Video, that had applied the presumption of mens
rea to similar statutory schemes. See id. In justifying its
conclusion, the Court asked rhetorically: “Would we apply a
statute that makes it unlawful ‘knowingly to possess drugs’ to
a person who steals a passenger’s bag without knowing that
the bag has drugs inside?” Id. at 1890.

     Justice Alito’s concurrence in Flores-Figueroa concisely
summarized the presumption of mens rea applied by the
Court, and added that the presumption was of course not
conclusive and could be overcome by context in certain
circumstances: “In interpreting a criminal statute such as the
one before us, I think it is fair to begin with a general
presumption that the specified mens rea applies to all the
elements of an offense, but it must be recognized that there
are instances in which context may well rebut that
presumption. . . . I therefore concur in the judgment and join
the opinion of the Court except insofar as it may be read to
adopt an inflexible rule of construction that can rarely be
overcome by contextual features pointing to a contrary
reading.” Id. at 1895-96 (Alito, J., concurring in part and
concurring in judgment). 9

    9
      Justice Scalia, joined by Justice Thomas, also agreed with the
Court’s decision, but he said that the statutory text alone dictated
                                19
       The Supreme Court’s case law demonstrates that the
Court has applied the presumption of mens rea consistently,
forcefully, and broadly. The presumption applies to statutes
that are silent as to mens rea. See Morissette, 342 U.S. 246;
U.S. Gypsum, 438 U.S. 422; Bailey, 444 U.S. 394; Posters ‘N’
Things, 511 U.S. 513; Staples, 511 U.S. 600; Carter, 530 U.S.
255. The presumption also applies to statutes that contain an
explicit mens rea requirement for one element but are silent or
ambiguous about mens rea for other elements.                  See
Morissette, 342 U.S. 246; Liparota, 471 U.S. 419; X-Citement
Video, 513 U.S. 64; Flores-Figueroa, 129 S. Ct. 1886. And
whether the statute is completely silent as to mens rea, or only
partially silent, the presumption applies to each element of the
offense. Recall that in Posters ‘N’ Things, for example, the
statute said simply: “It is unlawful for any person . . . to make
use of the services of the Postal Service or other interstate
conveyance as part of a scheme to sell drug paraphernalia
. . . .” 21 U.S.C. § 857(a) (1988); see 511 U.S. at 516. The
statute contained no express mens rea requirement. The Court
held that the presumption of mens rea applied to each element
of the offense, saying the statute “requires the Government to
prove that the defendant knowingly made use of an interstate
conveyance as part of a scheme to sell items that he knew


the result. He noted that the Court was “not content to stop at the
statute’s text,” but also was relying on background mens rea
principles. Flores-Figueroa, 129 S. Ct. at 1894 (Scalia, J.,
concurring in part and concurring in judgment). Justice Scalia
agreed that the presumption of mens rea has significant force, but
he said that courts should be cautious not to “expand a mens rea
requirement that the statutory text has carefully limited.” Id. In
other words, Justice Scalia emphasized that Congress through
statutory text may choose to override the presumption of mens rea.
Of course, the Section 924(c) offense at issue in our case is silent
about mens rea, so that concern does not pertain here.
                                   20
were likely to be used with illegal drugs.” 511 U.S. at 524
(emphases added).

    To sum up so far, the Supreme Court has established and
applied a rule of statutory interpretation for federal crimes: A
requirement of mens rea applies to each element of the
offense unless Congress has plainly indicated otherwise. 10




     10
         Although not applicable in this case, there are a few
categorical qualifications to the presumption of mens rea that
historically have co-existed alongside the presumption. The
presumption of mens rea does not generally apply to public welfare
offenses with minor penalties, to jurisdictional-only elements, or to
a few elements historically applied in a strict liability manner. See
X-Citement Video, 513 U.S. at 71-72 & nn.2-3. In this case, all
agree that the automatic weapon element in Section 924(c) does not
fall into any of those categories.
      Public welfare offenses carry light sanctions (usually six
months or less) and “regulate potentially harmful or injurious
items.” Staples, 511 U.S. at 607, 616-19; see, e.g., United States v.
Balint, 258 U.S. 250 (1922) (distributing unregistered drugs
without valid prescription). Elements are jurisdictional-only if they
seek only to “confer jurisdiction on the federal courts.” United
States v. Feola, 420 U.S. 671, 676 n.9 (1975). A typical example is
the federal status of property or the federal affiliation of an
individual. See, e.g., id. at 684 (fact that victim of assault is federal
officer). The most well-known offense elements that were
historically applied in a strict liability manner are the victim’s age
in a statutory rape case and a death resulting from a felony in a
felony-murder case. See Dean v. United States, 129 S. Ct. 1849,
1855 (2009); X-Citement Video, 513 U.S. at 72 n.2.
      When this dissenting opinion says that the presumption of
mens rea applies to “each element” of the offense, it still means to
recognize those narrow traditional qualifications.
                                21
                                III

     We thus far have established that the presumption of
mens rea applies to each element of the offense. To use the
presumption of mens rea correctly, we must keep in mind a
critical distinction: The presumption of mens rea applies to
elements of the offense, but not to sentencing factors.

     An element of the offense is a “fact necessary to
constitute the crime.” Almendarez-Torres v. United States,
523 U.S. 224, 240 (1998) (citation omitted). “Characteristics
of the offense itself are traditionally treated as elements . . . .”
United States v. O’Brien, 130 S. Ct. 2169, 2176 (2010).

    By contrast, a sentencing factor is a fact that is not
necessary to define the crime but that typically is used by a
sentencing court to increase punishment. See Almendarez-
Torres, 523 U.S. at 228. “Sentencing factors traditionally
involve characteristics of the offender – such as recidivism,
cooperation with law enforcement, or acceptance of
responsibility.” O’Brien, 130 S. Ct. at 2176.

     As the Supreme Court has recognized: “Much turns on
the determination that a fact is an element of an offense rather
than a sentencing” factor. Jones v. United States, 526 U.S.
227, 232 (1999); see also McMillan v. Pennsylvania, 477 U.S
79, 84-86 (1986). For example, under the Fifth and Sixth
Amendments, an element of the offense “must be charged in
the indictment, submitted to a jury, and proven by the
Government beyond a reasonable doubt.” Jones, 526 U.S. at
232. By contrast, a sentencing factor need not be charged in
the indictment, submitted to a jury, or proved by the
Government beyond a reasonable doubt. See id.

    As to the presumption of mens rea, the Supreme Court
has long stated that an element of the offense triggers the
                                 22
presumption of mens rea. See, e.g., Staples v. United States,
511 U.S. 600, 606-07 & n.3, 619 (1994). By contrast, as the
Supreme Court indicated in Dean v. United States, a
sentencing factor does not trigger the presumption of mens
rea. 129 S. Ct. 1849 (2009); see also O’Brien, 130 S. Ct. at
2179, 2180 (expressly describing Dean as a case about
“sentencing factors”).

     In Dean, the Court resolved a circuit split that had arisen
over whether the presumption of mens rea applies to
sentencing factors. The Court concluded that the presumption
does not apply to sentencing factors. Justice Stevens
vigorously dissented and lamented the distinction the Court
had drawn between elements of the offense and sentencing
factors for the presumption of mens rea:              “Although
mandatory minimum sentencing provisions are of too recent
genesis to have any common-law pedigree, there is no
sensible reason for treating them differently from offense
elements for purposes of the presumption of mens rea.
Sentencing provisions of this type have substantially the same
effect on a defendant’s liberty as aggravated offense
provisions. . . . The common-law tradition of requiring proof
of mens rea to establish criminal culpability should thus apply
equally to such sentencing factors.” 129 S. Ct. at 1858
(Stevens, J., dissenting) (citation omitted). 11

     11
        Even before Dean, most courts of appeals likewise
recognized that the presumption of mens rea does not apply to
sentencing factors, but rather only to elements of the offense. See,
e.g., United States v. Dean, 517 F.3d 1224, 1230 (11th Cir. 2008)
(argument for applying “general presumption against strict liability
in criminal statutes” is “unpersuasive as there is a distinction
between elements of an offense and sentencing enhancements for
conduct during perpetration of a violent criminal act”), aff’d, 129 S.
Ct. 1849; United States v. Vargas-Duran, 356 F.3d 598, 611 (5th
Cir. 2004) (“Although there is a presumption that criminal statutes
                                   23
     The distinction that the Court has drawn between
elements of the offense and sentencing factors derives in part
from the Court’s traditional view of sentencing as a more
flexible, open-ended proceeding that takes account of a wide
variety of circumstances. Cf. Pepper v. United States, 131 S.
Ct. 1229, 1235 (2011) (“sentencing judges exercise a wide
discretion in the types of evidence they may consider when
imposing sentence”) (internal quotation marks omitted);
Williams v. New York, 337 U.S. 241, 246 (1949) (“courts in
this country and in England practiced a policy under which a
sentencing judge could exercise a wide discretion in the
sources and types of evidence used”).

     To be sure, as indicated by Justice Stevens’s dissent in
Dean, some Justices continue to voice weighty arguments that
the protections attached to elements of the offense – including
Fifth and Sixth Amendment rights, as well as the presumption
of mens rea – should also attach to sentencing factors.

include an element of mental culpability, and strict liability crimes
are disfavored, the ‘use of force’ requirement in § 2L1.2 is part of a
strict liability 16-level sentencing enhancement and not part of a
strict liability criminal statute.”) (citation omitted); United States v.
Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir. 2003) (“Because the
brandishing and discharge provisions of § 924(c) are sentencing
factors, not elements, the government was not required to show that
Nava-Sotelo knowingly or intentionally discharged his weapon.”);
United States v. Walton, 255 F.3d 437, 444 (7th Cir. 2001) (“In
short, Walton was not convicted of a strict liability crime (in
violation of X-Citement Video), but instead was merely subject to a
strict liability sentencing enhancement.”); United States v.
Lavender, 224 F.3d 939, 941 (9th Cir. 2000) (“Sentencing factors,
however, are not separate criminal offenses and as such are not
normally required to carry their own mens rea requirements.”); see
also United States v. Lam Kwong-Wah, 924 F.2d 298, 304 (D.C.
Cir. 1991) (“It seems clear that, under the amended Guidelines,
scienter is not required as a general matter.”).
                                24
According to those Justices, there is little if any difference in
certain modern criminal statutes between the facts labeled as
elements and the facts labeled as sentencing factors. And in
the view of those Justices, the Court has allowed legislatures
to too broadly deploy the “sentencing factor” label and
thereby evade the protections, including the presumption of
mens rea, that attach to elements of the offense. See O’Brien,
130 S. Ct. at 2181-83 (Stevens, J., concurring); id. at 2183-84
(Thomas, J., concurring in judgment); Dean, 129 S. Ct. at
1857-60 (Stevens, J., dissenting); Harris v. United States, 536
U.S. 545, 572-83 (2002) (Thomas, J., dissenting); Monge v.
California, 524 U.S. 721, 737-41 (1998) (Scalia, J.,
dissenting); McMillan, 477 U.S. at 93-94 (Marshall, J.,
dissenting); id. at 95-104 (Stevens, J., dissenting).

     But that continuing argument about adding protections
for sentencing factors is not relevant here. That’s because, as
I will explain now, this case indisputably concerns an element
of the offense, which in turn means that the presumption of
mens rea indisputably applies.

                                IV

     As the preceding discussion reveals, deciding whether the
presumption of mens rea applies in this case turns on the
following question: Is the automatic character of the weapon
an element of the Section 924(c) offense, or is it a sentencing
factor? 12

    12
       Under Section 924(c), a person who, “during and in relation
to any crime of violence or drug trafficking crime . . . , uses or
carries a firearm” – “or who, in furtherance of any such crime,
possesses a firearm” – shall be “sentenced to a term of
imprisonment of not less than 5 years.” “If the firearm possessed
by” the person is a “semiautomatic assault weapon, the person shall
be sentenced to a term of imprisonment of not less than 10 years.”
                                25
     Determining whether a particular fact is an element of the
offense or a sentencing factor can be difficult in some cases.
In this case, however, the question is not difficult because the
Supreme Court has already answered it. 13

     In its 2010 decision in United States v. O’Brien, the
Court unanimously concluded that a firearm’s automatic
character is an element of the Section 924(c) offense as
written and intended by Congress – and not a sentencing
factor. 130 S. Ct. 2169 (2010). The question there concerned
whether the Government had to prove the fact that the weapon
was automatic to a jury beyond a reasonable doubt. See id. at
2173-74. The O’Brien Court said yes, because the automatic
character of the weapon is an element of the Section 924(c)
offense. The Court reasoned that the nature of the weapon
was a characteristic of the offense, and characteristics of the
offense “are traditionally treated as elements.” Id. at 2176. In
addition, the Court explained that the “drastic” increase in the
minimum sentence when the firearm is automatic “strongly
suggests a separate substantive crime,” not merely a


But “[i]f the firearm possessed by” the person “is a machinegun,”
“the person shall be sentenced to a term of imprisonment of not less
than 30 years.” 18 U.S.C. § 924(c)(1)(A)-(B).
     13
        A fact is an element of the offense for mens rea purposes if
Congress made it an element of the offense. An interesting
question – not presented in this case – is how the presumption
applies to a fact that Congress made a sentencing factor but that
must be treated as an element of the offense for Fifth and Sixth
Amendment purposes. See Apprendi v. New Jersey, 530 U.S. 466
(2000). The presumption of mens rea arguably should apply in
those cases as well, given the presumption’s historical foundation
and quasi-constitutional if not constitutional basis. But I need not
cross that bridge in this case because O’Brien said that Congress
intended the automatic character of the gun to be an element of the
Section 924(c) offense, not a sentencing factor.
                                 26
sentencing factor. Id. at 2177. 14 The Court in O’Brien thus
concluded that the automatic character of the gun is an
element of the Section 924(c) offense. 15

    Because the automatic character of the gun is an element
of the offense, and because the presumption of mens rea
applies to each element of the offense, the presumption of
mens rea applies here. We therefore must presume that the


     14
         Ten years before O’Brien, the Court unanimously reached
the same conclusion about a previous version of Section 924(c).
See Castillo v. United States, 530 U.S. 120 (2000). Reasoning that
“the difference between carrying, say, a pistol and carrying a
machinegun . . . is great, both in degree and kind,” the Castillo
Court concluded that “Congress intended the firearm type-related
words it used in § 924(c)(1) to refer to an element of a separate,
aggravated crime,” not merely a sentencing factor. Id. at 126-27,
131.
      15
         The majority opinion notes that O’Brien did not address the
mens rea requirement. See Maj. Op. at 9. The question presented
to the Supreme Court in O’Brien was whether the automatic
character of the gun had to be proved to a jury beyond a reasonable
doubt. The answer depended on whether it was an element of the
Section 924(c) offense. The Court said that it was an element of the
offense. Because the mens rea issue was not presented, the Court
quite reasonably did not reach out to sua sponte address mens rea.
In any event, the Government had conceded (correctly) in the
district court that proof of the defendant’s mens rea – that is, proof
that the defendant knew the automatic character of the weapon –
would be required if the automatic character of the gun were an
element of the offense. See United States v. O’Brien, 542 F.3d 921,
923 (1st Cir. 2008), aff’d, 130 S. Ct. 2169.
      What matters for our purposes are: (i) the Supreme Court in
O’Brien squarely held that the automatic character of the weapon is
an element of the offense, and (ii) the Supreme Court has
repeatedly held that the presumption of mens rea applies to
elements of the offense.
                             27
Section 924(c) offense requires the Government to prove that
the defendant knew his gun was automatic.

                              V

     The majority opinion avoids the presumption of mens rea
by treating the automatic character of the gun as if it’s a
sentencing factor rather than an element of the offense. That
is apparent from the majority opinion’s repeated invocation of
the Supreme Court’s decision in Dean v. United States, a
sentencing factor case. 129 S. Ct. 1849 (2009).

     The fundamental problem for the majority opinion is that
the decision in Dean addressed a sentencing factor – namely,
discharge of the firearm – and not an element of the offense.
The Supreme Court itself has referred to Dean as a case about
“sentencing factors.” United States v. O’Brien, 130 S. Ct.
2169, 2179, 2180 (2010). In the predecessor case to Dean,
the Supreme Court likewise held that discharge of the firearm
during the crime was a “sentencing factor,” not an element of
the offense. Harris v. United States, 536 U.S. 545, 552, 556
(2002).

     Because the Supreme Court concluded that discharge of
the firearm was a sentencing factor and not an element of the
offense, the presumption of mens rea did not apply in Dean.
The Dean Court therefore determined that the Government
need not prove that the defendant intended to discharge the
firearm.

    By contrast, as the Supreme Court held in O’Brien, the
automatic character of the gun is an element of the offense.
As a result, the presumption of mens rea applies in this case.

     To rely on Dean here – as the majority opinion does
relentlessly – is to miss the boat on the crucial distinction
                                 28
between sentencing factors and elements of the offense for
purposes of the presumption of mens rea.

     For the same reason, the majority opinion’s reliance on
this Court’s 1992 decision in United States v. Harris, 959
F.2d 246 (D.C. Cir. 1992), is misplaced. Harris said that the
automatic character of a gun was a “sentence enhancement”;
therefore, the Court did not require proof that the defendant
knew the gun was automatic. Id. at 259. In United States v.
Brown, moreover, we specifically described Harris as a
sentencing factor case: “The government also relies on
United States v. Harris, where we analyzed a part of
§ 924(c)(1) that imposes a 30-year minimum when the
weapon used is a machine gun. Assuming that this created a
sentencing factor, we found that the government didn’t need
to prove that the defendant knew the precise nature of the
weapon he used . . . .” 449 F.3d 154, 157-58 (D.C. Cir. 2006)
(citations omitted).

    The determination made in Harris and reiterated in
Brown – that the automatic character of the gun is a
sentencing factor – has been undermined by the Supreme
Court’s decision in O’Brien. In O’Brien, to repeat, the
Supreme Court expressly ruled that the automatic character of
the gun is an element of the Section 924(c) offense, not a
sentencing factor. See 130 S. Ct. 2169. The Supreme Court’s
decision in O’Brien thus knocked out the fundamental
underpinnings of this Court’s decision in Harris. 16

     16
        The Harris Court described the automatic character of the
gun as a sentencing factor and certainly never said anything like:
“The automatic character of the gun is an element of the offense but
the presumption of mens rea nonetheless does not apply.” And
even if the relevant portion of Harris had said (which it didn’t) that
the automatic character of the gun was an element of the offense
but that the presumption of mens rea nonetheless did not apply,
                                 29
     Moreover, in concluding that the Government did not
need to prove that the defendant knew the automatic character
of the gun, Harris reasoned that “there does not seem to be a
significant difference in mens rea between a defendant who
commits a drug crime using a pistol and one who commits the
same crime using a machine gun; the act is different, but the
mental state is equally blameworthy.” 959 F.2d at 259. But
in O’Brien, the Supreme Court directly rejected that line of
reasoning, stating that the dramatically enhanced sanctions in
Section 924(c) for carrying an automatic weapon reflect “the
moral depravity in choosing the weapon.” 130 S. Ct. at 2178.
O’Brien thus rejected not only the sentencing factor label that
Harris used, but also the reasoning that Harris employed. For
that reason as well, Harris has been undermined by the
Supreme Court on the question whether the presumption of
mens rea applies to the automatic character of the gun in a
Section 924(c) case. 17

such an analysis would itself no longer be good law in the wake of
later Supreme Court cases such as Staples, Posters ‘N’ Things, X-
Citement Video, and Flores-Figueroa that have held the
presumption of mens rea applies to each element of the offense.
      17
         Even if Harris’s analysis on the Section 924(c) mens rea
issue had not been undermined by later Supreme Court precedents,
Harris was a three-judge panel decision. The en banc Court has the
authority – both under Rule 35 of the Appellate Rules and general
principles of horizontal stare decisis – to overrule three-judge panel
decisions that the en banc Court believes to be wrongly decided and
exceptionally important. See, e.g., Fields v. Office of Eddie Bernice
Johnson, 459 F.3d 1, 12 (D.C. Cir. 2006) (en banc) (overruling
Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923
(D.C. Cir. 1986)); Florida Audubon Society v. Bentsen, 94 F.3d
658, 669 (D.C. Cir. 1996) (en banc) (overruling City of Los Angeles
v. National Highway Traffic Safety Administration, 912 F.2d 478
(D.C. Cir. 1990)); King v. Palmer, 950 F.2d 771, 785 (D.C. Cir.
1991) (en banc) (overruling McKenzie v. Kennickell, 875 F.2d 330
(D.C. Cir. 1989)); Save Our Cumberland Mountains, Inc. v. Hodel,
                                30
                                VI

     The majority opinion alternatively asserts that the
presumption of mens rea applies only to some elements of the
offense – namely, only to those elements that are “essential.”
See Maj. Op. at 5, 9-12. Under the majority opinion’s
approach, the presumption applies only when proof of mens
rea is necessary to avoid criminalizing apparently innocent
conduct – that is, when the defendant would be innocent if the
facts were as the defendant believed. Under the majority
opinion’s theory, the presumption does not apply when proof
of mens rea is necessary to avoid convicting a defendant of a
more serious offense for apparently less serious criminal
conduct – that is, when the defendant would receive a less
serious criminal sanction if the facts were as he believed.

    But where does the majority opinion find that limitation
on the presumption of mens rea? The Supreme Court has
never drawn such a distinction when employing the
presumption of mens rea.

     To be sure, the Supreme Court has said that the
presumption of mens rea is important when the defendant
otherwise may have been innocent of any wrongdoing. See,
e.g., Staples v. United States, 511 U.S. 600, 610 (1994) (Court
has taken “particular care” to avoid criminalizing apparently
innocent conduct). But the Court has never cabined the
presumption of mens rea to those circumstances. As this

857 F.2d 1516, 1524 (D.C. Cir. 1988) (en banc) (overruling Laffey
v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984)); Church of
Scientology of California v. IRS, 792 F.2d 153, 156-60 (D.C. Cir.
1986) (en banc) (overruling Neufeld v. IRS, 646 F.2d 661 (D.C. Cir.
1981)); see also, e.g., Chung v. Dep’t of Justice, 333 F.3d 273, 278
n.* (D.C. Cir. 2003) (overruling Griffin v. U.S. Parole Commission,
192 F.3d 1081 (D.C. Cir. 1999)) (Irons footnote).
                             31
Court said in United States v. Villanueva-Sotelo – a decision
approved by the Supreme Court in Flores-Figueroa v. United
States – the Supreme Court has found it “particularly
appropriate to extend a mens rea requirement when failure to
do so would result in a statute criminalizing nonculpable
conduct,” but “the Court has never held that avoiding such a
result is the only reason to do so.” 515 F.3d 1234, 1242 (D.C.
Cir. 2008) (internal quotation marks omitted). The majority
opinion here is thus trying to confine the presumption of mens
rea in a way that the Supreme Court has never done.

     Moreover, it would be incoherent to limit the
presumption of mens rea to only those cases where it’s
necessary to avoid criminalizing what the defendant thought
was innocent conduct. The key trigger for the presumption of
mens rea is whether the fact at issue is an element of the
offense. If a fact is an element of the offense and not a
sentencing factor, the presumption applies.         And the
presumption applies both when necessary to avoid
criminalizing apparently innocent conduct and when
necessary to avoid convicting of a more serious offense for
apparently less serious criminal conduct. As Professor
LaFave has explained, rules of mens rea apply both to a
defendant who is unaware of the facts that make his conduct
criminal and to a defendant who is “unaware of the magnitude
of the wrong he is doing.” WAYNE R. LAFAVE, CRIMINAL
LAW 304 (5th ed. 2010). The idea that “the mistake by the
defendant may be disregarded because of the fact that he
actually intended to do some legal or moral wrong” is – in
Professor LaFave’s words – “unsound, and has no place in a
rational system of substantive criminal law.” Id. at 304-05;
see also GLANVILLE WILLIAMS, CRIMINAL LAW: THE
GENERAL PART 185-99 (2d ed. 1961).
                               32
     Taking a step back: What sense would it make to have a
presumption of mens rea for an element of the offense that
increases the defendant’s mandatory minimum punishment
from no prison time to a term of 2 years’ imprisonment, for
example, but not to have a presumption of mens rea for an
element of the offense that aggravates the defendant’s offense
and elevates the defendant’s mandatory minimum punishment
from 10 years to 30 years? The answer is that it would make
no sense at all: “After all, a comparable degree of inequity
exists in (1) punishing a person who, but for the strict liability
application to the element, would have received zero
punishment (the ‘innocent’ case protected by X-Citement
Video) and (2) punishing with more years of imprisonment a
person who, but for the strict liability application to the
element, would still have received substantial punishment.”
Leonid Traps, “Knowingly” Ignorant: Mens Rea Distribution
in Federal Criminal Law After Flores-Figueroa, 112 COLUM.
L. REV. 628, 661 (2012).

     The majority opinion retorts that we are not confronted
with “an altar boy who made an innocent mistake.” Maj. Op.
at 12 (citation and brackets omitted). But the fact that the
defendant is a “bad person” who has done “bad things” does
not justify dispensing with the presumption of mens rea in this
fashion and imposing 20 years of additional mandatory prison
time. An example helps illustrate that point: If an altar boy
steals the collection bag, he is guilty of larceny. If the bag
also happens to contain a stash of cocaine sewn into the
lining, but the altar boy did not know about the hidden drugs,
he should not be guilty of drug possession. In other words,
the fact that he is guilty of larceny doesn’t justify rendering
him guilty of possessing drugs, at least absent some plain
indication of legislative intent to eliminate a mens rea
requirement. Yet the majority opinion’s approach here would
                               33
mean that the altar boy in that hypothetical scenario is indeed
guilty of both larceny and drug possession.

     When the facts as the defendant believed them would
have warranted conviction of a lesser offense and called for a
lesser punishment, no legitimate purpose of criminal law –
whether it be retribution, deterrence, or rehabilitation – is
served by convicting him of an aggravated offense and
imposing a more severe punishment.

     The Supreme Court’s recent decision in Flores-Figueroa
underscores that the presumption of mens rea applies not just
when the presumption is necessary to avoid criminalizing
apparently innocent conduct, but also when the presumption
is necessary to avoid convicting a defendant of a more serious
offense for apparently less serious conduct. 18

    Recall that the statute in Flores-Figueroa punished
someone who “knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another
person” while committing an enumerated predicate crime. 18
U.S.C. § 1028A; see 129 S. Ct. 1886, 1888-89 (2009). The
question was whether the Government had to prove that the
defendant knew the identification card contained the identity
of another actual person (as opposed to thinking that the
identification card merely contained the identity of a made-up
person). Because the statute applied only to those who had
committed a predicate crime and who had illegally used a
fake ID card, proof that the defendant knew the identification
card contained the identity of another actual person was not
necessary to avoid criminalizing apparently innocent conduct.

    18
        As indicated above, I would reach the same result in this
case even absent Flores-Figueroa. See supra note 2. Flores-
Figueroa confirms and reinforces the approach indicated by a long
line of Supreme Court precedents.
                                  34
The Government argued that it therefore should not have to
prove that the defendant knew the card contained the identity
of another actual person.

     No Justice on the Court accepted the Government’s
argument that the presumption of mens rea applies only when
necessary to avoid criminalizing apparently innocent conduct.
Indeed, the Court specifically rejected the Government’s
argument that “the defendant’s necessary guilt of a predicate
crime and the defendant’s necessary knowledge that he has
acted ‘without lawful authority,’ make it reasonable” to “read
the statute’s language as dispensing with the knowledge
requirement.” Flores-Figueroa, 129 S. Ct. at 1893. The
Court ruled that the Government still must prove the
defendant knew the card contained the identity of another
person, even though the defendant was already committing
two other crimes – the predicate crime and the use of a fake
ID card. The Court relied in part on the presumption of mens
rea, described by the Court as a strong default rule of statutory
interpretation: “The manner in which the courts ordinarily
interpret criminal statutes is fully consistent with this ordinary
English usage. That is to say courts ordinarily read a phrase
in a criminal statute that introduces the elements of a crime
with the word ‘knowingly’ as applying that word to each
element.” Id. at 1891. 19


     19
        Justice Alito’s concurrence succinctly summarized the
presumption of mens rea applied by the Court, and added that the
presumption was of course not conclusive: “In interpreting a
criminal statute such as the one before us, I think it is fair to begin
with a general presumption that the specified mens rea applies to all
the elements of an offense, but it must be recognized that there are
instances in which context may well rebut that presumption.”
Flores-Figueroa, 129 S. Ct. at 1895 (Alito, J., concurring in part
and concurring in judgment).
                              35
     As one respected commentary has explained: “Earlier
cases had indicated that when a federal statute criminalizes
otherwise innocent conduct, courts should interpret the mens
rea requirement in the statute broadly. Some lower courts had
taken this line of decisions to mean that when a federal
criminal statute criminalizes behavior that would not be
innocent in the absence of that statute, the mens rea
requirement should be read to apply to fewer elements of the
crime.     In Flores-Figueroa, the Court corrected this
misreading.” The Supreme Court, 2008 Term – Leading
Cases, 123 HARV. L. REV. 153, 317 (2009).

     In trying to narrow the presumption of mens rea so that it
applies only when necessary to avoid criminalizing apparently
innocent conduct, the majority opinion echoes the
Government’s failed submission in Flores-Figueroa. It is
instructive to compare the Government’s position in Flores-
Figueroa with the majority opinion’s analysis here.

     In Flores-Figueroa, the Government tried to distinguish
Morissette, U.S. Gypsum, Liparota, Staples, and X-Citement
Video on the ground that those cases involved statutes that
“criminalize conduct that might reasonably be viewed as
innocent or presumptively lawful in nature.” Brief for the
United States at 42-43, Flores-Figueroa, 129 S. Ct. 1886 (No.
08-108).      The Government further contended that the
Supreme Court’s mens rea precedents “should not be
understood apart from the Court’s primary stated concern of
avoiding criminalization of otherwise non-culpable conduct.”
Id. at 18 (citation and brackets omitted). And the Government
claimed that “the Court has interpreted the scope of a
statutorily prescribed mens rea requirement against a
background presumption that statutes should not generally be
read as criminalizing apparently innocent conduct.” Id. at 40
                                36
(internal quotation marks omitted).         The Supreme Court
rejected those arguments wholesale.

     Like the Government in Flores-Figueroa, the majority
opinion here tries to distinguish the relevant Supreme Court
precedents on the ground that those cases “involved” statutes
“that criminalized otherwise lawful behavior.” Maj. Op. at
11. The majority opinion concludes that the precedents’
“concerns animating the presumption in favor of mens rea” –
the “danger of ensnaring an altar boy who made an innocent
mistake” – “simply are not present here.” Maj. Op. at 11-12
(internal quotation marks and brackets omitted). And the
majority opinion says that the “Court developed the
presumption in favor of mens rea for one particular reason: to
avoid criminalizing otherwise lawful conduct.” Maj. Op. at 9.

     The majority opinion is thus rehashing the same theory
that the Government unsuccessfully advanced to the Supreme
Court in Flores-Figueroa. 20

     Finally, it bears mention that even the majority opinion
ultimately backs off its “apparently innocent conduct”
limitation to the presumption of mens rea. Under the majority
opinion’s theory, there should be no mens rea requirement for
any of the elements of the Section 924(c) offense, including
the carrying of the gun. After all, Section 924(c) applies only

    20
        The Supreme Court’s decision in Flores-Figueroa agreed
with this Court’s earlier decision in Villanueva-Sotelo – and not
with the position that had been articulated in the Villanueva-Sotelo
dissenting opinion. See Villanueva-Sotelo, 515 F.3d at 1258-61
(Henderson, J., dissenting) (arguing that proof of mens rea for one
element should not be required in part because it was not necessary
to avoid criminalizing otherwise innocent conduct). The majority
opinion today nonetheless employs some of the same reasoning that
the dissenting opinion in Villanueva-Sotelo used.
                              37
to someone who has committed a separate violent or drug
trafficking crime. Requiring proof that the defendant (i) knew
he was carrying an object and (ii) further knew that the object
he was carrying was a gun is therefore not necessary to avoid
criminalizing apparently innocent conduct. But realizing the
harsh absurdities that could result from that conclusion –
namely, that a 30-year mandatory minimum sentence could be
imposed based on the presence of a gun that the defendant did
not even know was there – the majority opinion retreats. The
majority opinion concedes that Section 924(c) must be
interpreted to require knowledge that the defendant was
carrying a gun and knowledge that the object carried was a
gun. See Maj. Op. at 5, 12. What that means is that the
majority opinion itself actually ends up applying the
presumption of mens rea in circumstances where it is not
necessary to avoid criminalizing apparently innocent conduct.
Given that concession, what is left of the majority opinion’s
attempt to limit the presumption of mens rea to circumstances
where the presumption is necessary to avoid criminalizing
apparently innocent conduct? Not much. The majority
opinion fashions a limitation on the presumption of mens rea
that the Supreme Court has never applied and that was
rejected in Flores-Figueroa, that we likewise rejected in
Villanueva-Sotelo, and that makes little sense under
fundamental criminal law principles. And then the majority
opinion – apparently recognizing that its theory generates
harsh absurdities – carves out exceptions in an ad hoc manner
that leaves its attempted limitation on the presumption of
mens rea in shambles.

     In sum, under Supreme Court precedent, the presumption
of mens rea applies to each element of the offense, not just
when necessary to avoid criminalizing apparently innocent
conduct. Therefore, the presumption of mens rea applies to
the automatic character of the weapon in Section 924(c) cases.
                                38
                                VII

     By now, we have cleared a lot of brush in determining
that the presumption of mens rea applies to the automatic
character of the weapon in Section 924(c) cases. Of course,
the presumption of mens rea is a presumption; it thus may be
overcome by a plainly contrary congressional intent, as
revealed in the statutory text or context.         Here, the
                                         21
presumption of mens rea is not overcome.
    21
        Judge Henderson’s concurring opinion suggests that the
defendant forfeited his mens rea objection in the District Court and
that the plain error standard of review thus should apply in this
case. Under our case law, that is wrong. The District Court wrote a
careful seven-page opinion (which it issued before the Supreme
Court’s 2010 decision in United States v. O’Brien) rejecting the
defense’s argument on the mens rea issue. See United States v.
Morrow, No. 04-355, 2005 WL 3163804 (D.D.C. June 19, 2005);
see also Henderson Concurring Op. at 2 n.1. The District Court
explained its view that this Court’s 1992 decision in United States
v. Harris was binding in this Circuit and that the defendants
(including Burwell) therefore could not argue to the jury that they
thought their weapons were semi-automatic. It is true that the
defense did not renew that objection again. But that was entirely
appropriate under our precedents: When a district court has fully
considered and then rejected an argument, we do not force a
defendant “to go through the futile exercise of interposing the same
objection to the jury instructions.” United States v. Williams, 194
F.3d 100, 102 (D.C. Cir. 1999). After the District Court’s decision,
any additional objection from the defense would have been futile,
and Burwell did not need to interpose another futile objection to
preserve his argument.
     Judge Henderson’s concurring opinion also contends that any
error here was harmless. See Henderson Concurring Op. at 4 n.6.
That, too, is wrong under the precedents. Failing to instruct on the
required mens rea cannot be deemed harmless here. To be sure, it
is possible that the jury might have disbelieved Burwell and found
that he did know the gun was automatic. But that possibility does
                                39
     To begin with, three aspects of Section 924(c) strongly
reinforce the presumption of mens rea: the severity of the
additional sentence for carrying an automatic gun; the
difficulty of distinguishing an automatic gun from a semi-
automatic gun; and the inconsistency that would otherwise be
created with the Supreme Court’s decision in Staples, which
required proof that the defendant knew the gun was automatic
in order to convict him of possessing an unregistered
automatic weapon.

     First, the severe penalties at issue here support requiring
proof of the defendant’s mens rea. The Supreme Court has
repeatedly stated that “the penalty imposed under a statute has
been a significant consideration in determining whether the
statute should be construed as dispensing with mens rea.”
Staples v. United States, 511 U.S. 600, 616 (1994). In X-
Citement Video, the Court said that the “concern with harsh
penalties looms equally large respecting § 2252.” United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994). In

not justify dispensing with a jury instruction requiring the
Government to prove beyond a reasonable doubt that Burwell knew
the gun was automatic. Nor would it justify this Court in affirming
this Section 924(c) conviction notwithstanding the lack of such a
jury instruction. As the Supreme Court stated in Morissette: “Of
course, the jury, considering Morissette’s awareness that these
casings were on government property, his failure to seek any
permission for their removal and his self-interest as a witness,
might have disbelieved his profession of innocent intent and
concluded that his assertion of a belief that the casings were
abandoned was an afterthought. Had the jury convicted on proper
instructions it would be the end of the matter. But juries are not
bound by what seems inescapable logic to judges.” Morissette v.
United States, 342 U.S. 246, 276 (1952); see also United States v.
U.S. Gypsum Co., 438 U.S. 422, 446 (1978) (“ultimately the
decision on the issue of intent must be left to the trier of fact
alone”).
                               40
U.S. Gypsum, the Court said: “The severity of these sanctions
provides further support for our conclusion that the Sherman
Act should not be construed as creating strict-liability
crimes.” United States v. U.S. Gypsum Co., 438 U.S. 422,
442 n.18 (1978). And in Morissette, the Court found larceny
not to be a strict liability crime in part because “the penalty is
high and, when a sufficient amount is involved, the infamy is
that of a felony, which, says Maitland, is ‘as bad a word as
you can give to man or thing.’” Morissette v. United States,
342 U.S. 246, 260 (1952) (ellipsis omitted).

    The “harsh penalties” in Staples and X-Citement Video
were statutory maximums of 10 years’ imprisonment. 513
U.S. at 72; 511 U.S. at 602-03. The “sever[e]” sanction in
U.S. Gypsum was a statutory maximum of 3 years’
imprisonment. 438 U.S. at 442 n.18. And the “high” penalty
in Morissette was a statutory maximum of one year in prison.
342 U.S. at 248 & n.2. The Supreme Court deemed those
penalties sufficiently stringent to support a requirement of
mens rea.

     In this case, the additional imprisonment that turns on the
automatic character of the gun is an extra 20 years; the extra
20 years is a mandatory minimum; and the resulting 30-year
mandatory minimum sentence for this Section 924(c) offense
must be served consecutively to (that is, in addition to) the
sentence for the underlying robbery. The penalty at issue here
is thus dramatically more severe than the penalties in those
earlier Supreme Court mens rea cases. In the words of the
Supreme Court, the extra 20 years of mandatory, consecutive
prison time here is an “extreme sentencing increase.” United
States v. O’Brien, 130 S. Ct. 2169, 2178 (2010).

    Congress could have decided that carrying either a semi-
automatic or an automatic gun during a robbery is equally
                                41
depraved and equally worthy of a 30-year mandatory
sentence. Congress did not do so. It believed that carrying an
automatic gun is far more serious and depraved, warranting an
extra 20 years of mandatory prison time above that for
carrying a semi-automatic gun. Almost a fortiori from the
Supreme Court’s decisions in Staples, X-Citement Video, U.S.
Gypsum, and Morissette, the additional 20 years of mandatory
prison time strongly supports requiring proof of mens rea –
namely, proof that the defendant knew the automatic
character of the gun.

     Second, the difficulty of distinguishing an automatic gun
from a semi-automatic gun supports requiring proof of mens
rea.     Automatic and semi-automatic guns may appear
externally similar if not identical, as the Staples Court
explained. See 511 U.S. at 615. And “virtually any
semiautomatic weapon may be converted, either by internal
modification or, in some cases, simply by wear and tear,” into
an automatic weapon. Id. The Supreme Court thus
recognized that it is quite possible for someone who possesses
an automatic weapon to “genuinely and reasonably” believe
that he possesses “a conventional semi-automatic” weapon.
Id. (citation omitted). 22

    Third, requiring proof of mens rea is supported by the
Supreme Court’s decision in Staples, which applied the

    22
         Indeed, the evidence in this very case illustrates the
difficulty of distinguishing semi-automatic from automatic
weapons. A firearms expert testified that the guns in question were
capable of semi-automatic or automatic operation. When asked
“without firing the gun or being a firearms expert, would you know
whether or not that gun was fully automatic or semi-automatic?,”
the expert replied, “It’s not readily apparent, no.” Trial Tr. 7286-
87, Morning Session, June 15, 2005, J.A. 307-08; see also id. at
7284-93, J.A. 305-14.
                              42
presumption of mens rea in very similar circumstances.
There, the Court considered a statute that criminalized
possession of an unregistered automatic gun. The statute
contained no express mens rea requirement. The Supreme
Court applied the presumption of mens rea and required the
Government to prove that the defendant knew that the gun
was automatic.

     The decision in Staples raises a straightforward question:
If the presumption of mens rea applied in Staples to the gun’s
automatic character, why shouldn’t it also apply here to the
gun’s automatic character? The majority opinion offers no
persuasive answer to that question.

     So there are three significant textual and contextual
factors that strongly reinforce the presumption of mens rea
and support requiring proof that the defendant knew the
automatic character of the gun. There is nothing in the
statutory text or context that undermines the presumption of
mens rea.

     It is of course true, as the majority opinion notes, that
“Section 924(c)(1)(B)(ii) is silent regarding a mens rea
requirement.” Maj. Op. at 21. But as the Supreme Court has
explained again and again, “mere omission from the statute of
any mention of intent will not be construed as eliminating that
element from the crimes denounced.” United States v. Bailey,
444 U.S. 394, 406 n.6 (1980) (quoting Morissette, 342 U.S. at
263) (brackets omitted). To state the obvious: If the
presumption of mens rea were overcome by statutory silence,
it would not be much of a presumption. But the presumption
of mens rea is quite potent. Indeed, the Supreme Court has
stated that statutes containing no express mens rea
requirement still unambiguously contain a mens rea
                               43
requirement. You read that correctly. See Staples, 511 U.S.
at 619 n.17.

     It is also true that other subsections in Section 924, as
well as other statutes, expressly require a specific mens rea.
Because Congress knows how to require mens rea and indeed
has required it in other subsections, the majority opinion
suggests that the omission of mens rea from the automatic
weapon element in Section 924(c) must have been deliberate.
But the Supreme Court has repeatedly rejected that approach
to mens rea issues. For example, the statute in Morissette
punished “[w]hoever embezzles, steals, purloins, or
knowingly converts to his use or the use of another” anything
owned by the United States. 18 U.S.C. § 641 (1952)
(emphasis added); see 342 U.S. at 248 n.2. Despite the
explicit knowledge requirement for one element, the Court
held that “mere omission” of a mens rea requirement for
another element does not eliminate a mens rea requirement
for that other element. 342 U.S. at 263. Similarly, in Carter
v. United States, the Court faced parallel subsections of a
bank robbery statute. While subsection (b) required “a
specific ‘intent to steal or purloin,’” subsection (a) contained
“no explicit mens rea requirement of any kind.” 530 U.S.
255, 267 (2000). But once again, the Court refused to apply
strict liability to subsection (a). Instead, relying on “the
presumption in favor of scienter,” the Court “read subsection
(a) as requiring proof” of the defendant’s knowledge. Id. at
268. And in Posters ‘N’ Things, Ltd. v. United States, the
Court interpreted a section of a statute – 21 U.S.C. § 857
(1988) – enacted as part of the Anti-Drug Abuse Act of 1986.
See 511 U.S. 513, 516 (1994). The adjacent section of the
statute, enacted in the same Act, imposed an explicit
knowledge requirement. See 21 U.S.C. § 856(a) (1988). Yet
the Court still held that “the fact that Congress did not include
the word ‘knowingly’ in the text of § 857” cannot “justif[y]
                                44
the conclusion that Congress intended to dispense entirely
with a scienter requirement.” Posters ‘N’ Things, 511 U.S. at
522. Cf. Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012) (“if the
express provision of judicial review in one section of a long
and complicated statute were alone enough to overcome the
APA’s presumption of reviewability for all final agency
action, it would not be much of a presumption at all”).

      In short, the Supreme Court’s precedents definitively
establish that neither (i) silence on mens rea, nor (ii) the
inclusion of a mens rea requirement in another statute, nor
(iii) the inclusion of a mens rea requirement in another part of
the same statute suffices to defeat the presumption of mens
rea.

     More broadly, the majority opinion suggests that the
presumption of mens rea is overcome here because the
purpose of Section 924(c) is to deter violent use of the most
dangerous guns. But the goal of every criminal statute is to
deter disfavored or dangerous activity. The purpose of
deterring criminal activity has not justified dispensing with
the presumption of mens rea for elements of the offense. See,
e.g., Flores-Figueroa v. United States, 129 S. Ct. 1886, 1892
(2009) (“The question, however, is whether Congress
intended to achieve this enhanced protection by permitting
conviction of those who do not know the ID they unlawfully
use refers to a real person, i.e., those who do not intend to
cause this further harm.”); Morissette, 342 U.S. at 259 (“Of
course, the purpose of every statute would be ‘obstructed’ by
requiring a finding of intent, if we assume that it had a
purpose to convict without it.”). 23

    23
        The majority opinion says it is not “unusual to punish
individuals for the unintended consequences of their unlawful acts.”
Maj. Op. at 13. To be sure, Congress sometimes overrides the
presumption of mens rea and expressly requires only recklessness
                                 45
     In sum, the presumption of mens rea is not overcome in
this statute. Indeed, the relevant textual and contextual
considerations strongly support requiring proof of mens rea in
this case. Therefore, the Government should have been
required to prove the defendant’s mens rea – namely, to prove
that the defendant knew the gun was automatic.

                                VIII

   In seeking to limit the presumption of mens rea, the
Government suggests that the presumption is not workable or


or negligence, or even strict liability, for an element of an offense.
The question here, however, is how to interpret a statute silent
about mens rea. The case law establishes that the presumption of
mens rea applies to each element of the offense. And applying the
presumption of mens rea, courts generally require proof of the
defendant’s purpose or knowledge for each element. See supra
note 3; see, e.g., U.S. Gypsum, 438 U.S. at 444 (applying
presumption of mens rea to consequence element and saying that
purpose or knowledge suffices).
     The majority opinion also focuses on the verb “is” in Section
924(c): “If the firearm possessed . . . is a machinegun . . . the
person shall be sentenced to a term of imprisonment of not less than
30 years.” 18 U.S.C. § 924(c)(1)(B) (emphasis added). The
majority opinion says that similar language in Dean v. United
States focused on “whether something happened – not how or why
it happened.” 129 S. Ct. 1849, 1853 (2009). And the Dean Court
required no showing of mens rea. But again, Dean did not involve
an element of the offense, and thus the presumption of mens rea did
not apply. With respect to elements of the offense, the presumption
of mens rea does apply. And merely using “is” in this way surely
does not suffice to overcome the presumption. See X-Citement
Video, 513 U.S. at 68 (similarly applying presumption of mens rea
to statutory language – “involves the use of a minor” – that
emphasized whether something happened, not how or why it
happened).
                               46
practical for statutes like this one. That is wrong. The
presumption of mens rea is eminently workable and practical.

     First, the presumption of mens rea eliminates the need
for difficult statute-by-statute inquiry into whether a particular
statute requires proof of the defendant’s mens rea. The
presumption of mens rea applies to each element of the
offense in federal criminal statutes. A stable and consistently
applied presumption of mens rea yields greater clarity and
predictability for courts, prosecutors, and defendants. It saves
resources that otherwise might be wasted in wrangling over
whether a particular element warrants the presumption. It
means that Congress need not go back and scour all existing
statutes to ensure that mens rea was properly addressed. Nor
need Congress worry that inadvertent ambiguity about mens
rea will produce harsh and unintended results.                The
background principle is straightforward: Only a deliberately
and plainly expressed choice by Congress will override the
presumption of mens rea that attaches to elements of the
offense. Cf. Morrison v. National Australia Bank Ltd., 130 S.
Ct. 2869, 2881 (2010) (“The results of judicial-speculation-
made-law – divining what Congress would have wanted if it
had thought of the situation before the court – demonstrate the
wisdom of the presumption against extraterritoriality. Rather
than guess anew in each case, we apply the presumption in all
cases, preserving a stable background against which Congress
can legislate with predictable effects.”).

     Second, the presumption of mens rea avoids the
significant constitutional questions that would arise if a
defendant could be severely punished based on a fact the
defendant did not know. If we followed the Government’s
lead and read criminal statutes literally with respect to mens
rea, we would have to open up an entire new body of
constitutional mens rea law. See Lambert v. California, 355
                              47
U.S. 225, 228-30 (1957); see also United States v. X-Citement
Video, Inc., 513 U.S. 64, 78 (1994) (cases “suggest that a
statute completely bereft of a scienter requirement as to the
age of the performers would raise serious constitutional
doubts”); United States v. U.S. Gypsum Co., 438 U.S. 422,
437-38 (1978) (“While strict-liability offenses are not
unknown to the criminal law and do not invariably offend
constitutional requirements, the limited circumstances in
which Congress has created and this Court has recognized
such offenses attest to their generally disfavored status.”)
(emphasis added) (citations omitted).

     Third, the presumption of mens rea carefully balances the
competing interests of the prosecution and the defense. The
Government suggests that it would be impractical and unfair
to the prosecution to require proof of the defendant’s mens rea
in these circumstances. The Government has advanced such
claims many times before. Yet the Supreme Court has
repeatedly stated that the presumption of mens rea does not
unfairly burden the prosecution. Indeed, in Staples v. United
States, the Court rejected the exact same argument from the
Government and said that the very mens rea requirement at
issue here – knowledge that the gun was automatic – would
be easy enough to prove: “The Government contends that . . .
requiring proof of knowledge would place too heavy a burden
on the Government and obstruct the proper functioning of
§ 5861(d).       But knowledge can be inferred from
circumstantial evidence, including any external indications
signaling the nature of the weapon. And firing a fully
automatic weapon would make the regulated characteristics of
the weapon immediately apparent to its owner. In short, we
are confident that when the defendant knows of the
characteristics of his weapon that bring it within the scope of
the Act, the Government will not face great difficulty in
proving that knowledge.” 511 U.S. 600, 615-16 n.11 (1994)
                                 48
(citation omitted); see also Flores-Figueroa v. United States,
129 S. Ct. 1886, 1893 (2009) (“The difficulties of proof along
with the defendant’s necessary guilt of a predicate crime and
the defendant’s necessary knowledge that he has acted
‘without lawful authority,’ make it reasonable, in the
Government’s view, to read the statute’s language as
dispensing with the knowledge requirement. We do not find
this argument sufficient, however, to turn the tide in the
Government’s favor.”). 24

     In rejecting the Government’s repeated claims that the
presumption of mens rea makes it too difficult to convict, the
Supreme Court has tartly replied that strict liability can make
it too easy to convict: “The Government asks us by a feat of
construction radically to change the weights and balances in
the scales of justice. The purpose and obvious effect of doing
away with the requirement of a guilty intent is to ease the
prosecution’s path to conviction, to strip the defendant of such
benefit as he derived at common law from innocence of evil
purpose, and to circumscribe the freedom heretofore allowed
juries.” Morissette v. United States, 342 U.S. 246, 263
(1952).



     24
        Proving that the defendant knew a fact does not require
proving that the defendant was certain of that fact. “When
knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware of a
high probability of its existence, unless he actually believes that it
does not exist.” MODEL PENAL CODE § 2.02(7) (Official Draft &
Revised Comments 1985); see Global-Tech Appliances, Inc. v. SEB
S.A., 131 S. Ct. 2060, 2069 (2011); Turner v. United States, 396
U.S. 398, 416 n.29 (1970); Leary v. United States, 395 U.S. 6, 46
n.93 (1969); WAYNE R. LAFAVE, CRIMINAL LAW 262-63 & n.27
(5th ed. 2010).
                               49
    If proving mens rea as to a specific element is indeed
considered too burdensome for the prosecution, Congress can
always eliminate the mens rea requirement for a particular
element or crime, subject to constitutional limits. As the
Supreme Court said in Staples: “Of course, if Congress
thinks it necessary to reduce the Government’s burden at trial
to ensure proper enforcement of the Act, it remains free to
amend § 5861(d) by explicitly eliminating a mens rea
requirement.” 511 U.S. at 616 n.11. So too here.

     The presumption of mens rea is a core element of the rule
of law; it also is workable and practical.

                              ***

      Convicting a defendant of this Section 924(c) offense and
imposing an extra 20 years of mandatory imprisonment based
on a fact the defendant did not know is unjust and
incompatible with deeply rooted principles of American law.
The Supreme Court has applied the presumption of mens rea
precisely to avoid such injustice. Justice Jackson’s opinion in
Morissette described the link between mens rea and bedrock
American principles of justice and responsibility: “The
contention that an injury can amount to a crime only when
inflicted by intention is no provincial or transient notion. It is
as universal and persistent in mature systems of law as belief
in freedom of the human will and a consequent ability and
duty of the normal individual to choose between good and
evil.     A relation between some mental element and
punishment for a harmful act is almost as instinctive as the
child’s familiar exculpatory ‘But I didn’t mean to,’ and has
afforded the rational basis for a tardy and unfinished
substitution of deterrence and reformation in place of
retaliation and vengeance as the motivation for public
                              50
prosecution.” Morissette v. United States, 342 U.S. 246, 250-
51 (1952) (footnote omitted).

     The debate over mens rea is not some philosophical or
academic exercise. It has major real-world consequences for
criminal defendants. And it takes on added significance in an
era of often lengthy mandatory minimum sentences. In this
statute, dispensing with mens rea means an extra 20 years of
mandatory imprisonment for the defendant, tripling the
mandatory minimum sentence from 10 years to 30 years.
And the 30-year sentence must be served consecutively to
(that is, in addition to) the sentence for the underlying
robbery. That is an extraordinarily harsh result for a fact the
defendant did not know.

     It’s tempting to conclude that Burwell got what he
deserved – that carrying a semi-automatic gun during a
robbery (as Burwell allegedly believed he was doing) is just
as depraved and blameworthy as carrying an automatic gun
during a robbery. But neither Congress nor the Supreme
Court agrees. Congress deliberately selected 10 years as the
mandatory minimum sentence for a person who commits a
robbery while carrying a semi-automatic gun. And Congress
deliberately chose 30 years as the mandatory minimum
sentence for a person who commits a robbery while carrying
an automatic gun. As the Supreme Court explained in
O’Brien, Congress drew that dramatic distinction because it
believed that carrying an automatic gun during the robbery
reflected significantly greater moral depravity by the
defendant. But that link between the automatic weapon and
greater moral depravity does not hold if the defendant actually
thought his gun was a semi-automatic.

    I would conclude that the presumption of mens rea
applies to the automatic weapon element of Section 924(c).
                             51
Applying that presumption, I would hold that the Government
had to prove that Burwell knew his firearm was automatic.
Of course, a properly instructed jury might or might not find
Burwell guilty, but he is entitled to a jury instruction on
whether he had the mens rea required for this offense.
Because the District Court did not require the Government to
prove that Burwell knew his gun was automatic, I would
vacate Burwell’s Section 924(c)(1)(B)(ii) conviction. I
respectfully dissent.
