Sixth Circuit Notes Split Re Existence of Mens Rea Requirement for Sentencing under 18 U.S.C. § 942(c)(1)(A)

Per U.S. v. Nelson, Slip Copy, 2008 WL 1836732 (6th Cir. Apr. 24, 2008):

The statute in question provides that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime ... (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 942(c)(1)(A). The defendant now contends that because the gun he was admittedly “brandishing” during the attempted robbery was discharged inadvertently-a fact that the government was willing to concede at Nelson's guilty plea hearing-the record fails to establish the requisite mens rea for a mandatory-minimum sentence of 10 years under subsection (iii). Instead, he insists, he should have been sentenced under subsection (ii) of the statute.

In support of this argument, Nelson relies on two recent cases in which sister circuits have found that general intent, at least, is necessary to support sentencing under subsection (iii). Both the D.C. Circuit and the Ninth Circuit consider “an intent requirement [to be] implicit in the discharge provision.” United States v. Brown, 449 F.3d 154, 155 (D.C.Cir.2006) (the subsections “penalize increasingly culpable or harmful conduct” and because subsections (i) and (ii) both require intent, reading a mens rea requirement into the third subsection's “discharge provision would be consistent with this progression”); see also United States v. Dare, 425 F.3d 634, 641 n. 3 (9th Cir.2005) (noting, without analysis, that “discharge” requires a general intent). On the other hand, two other circuit courts have reached the opposite conclusion, creating a circuit split. See United States v. Dean, ---F.3d ----, No. 06-14918, 2008 WL 441602, at *5 (11th Cir. Feb. 20, 2008) (rejecting Brown's progression analysis); United States v. Nava-Sotelo, 354 F.3d 1202, 1204-05 (10th Cir.2003) (under the plain language of subsection (iii), a 10-year minimum sentence is mandatory even if the discharge was accidental or involuntary). In finding that proof of mens rea is not required under subsection (iii), the Tenth and Eleventh Circuits focused on a Supreme Court decision, Harris v. United States, 536 U.S. 545 (2002), in which the Court held that section 924(c)'s brandishing and discharge provisions are “sentencing factors to found by the judge, not offense elements to be found by the jury.” Id. at 556. Those two courts have concluded that “[a]s a result, no mens rea is required.” Nava-Sotelo, 354 F.3d at 1206; see also Dean, 2008 WL 441602, at *4 (subsection (iii) “is a sentence enhancement and merely reflects factors that will enhance sentencing, not elements of an offense”).

The mens rea issue is one on which the Sixth Circuit has not taken a position. It is not one on which we are in a position to rule in this case . . . .