Unknown Elements: The Mens Rea Question in 18 U.S.C. § 924(c)(1)(B)(ii)’s Machine Gun Provision

By:  Stephanie Siyi Wu


18 U.S.C. § 924(c)(1)(B)(ii) imposes an additional mandatory minimum sentence of thirty years for the possession of a machine gun during and in relation to a drug trafficking or violent crime. Prior to 2010, federal courts commonly excluded a mens rea requirement from § 924(c)(1)(B)(ii) by reasoning that machine gun possession was a sentencing factor, not an element of the offense to be found by a jury. In 2010, however, the Supreme Court held in United States v. O’Brien that machine gun possession was an element of the offense that must be proven to a jury beyond a reasonable doubt. In light of O’Brien’s removal of one major tenet on which prior courts justified their interpretation of § 924(c)(1)(B)(ii)’s mens rea requirement, this Note examines remaining arguments for continuing to exclude a mens rea requirement from the provision.


Specifically, this Note examines the opinions of two post-O’Brien cases from the Eleventh and D.C. Circuits, which reaffirmed their prior exclusion of a mens rea requirement from § 924(c)(1)(B)(ii). The Note suggests that, contrary to the Eleventh and D.C. Circuit opinions, canons of mens rea interpretation do not compel the exclusion of a mens rea requirement from § 924(c)(1)(B)(ii). That is, the Supreme Court’s mens rea case law does not provide a cut-and-dried canon of interpretation that clearly determines § 924(c)(1)(B)(ii)’s mens rea question. Nonetheless, this Note observes, the Court has exhibited an implicit concern with ensuring that mental culpability be proportionate to the punishment imposed in certain areas of its mens rea jurisprudence. As such, courts should require a mens rea showing for machine gun possession because doing so would be consistent with the Court’s underlying concern with proportionality between sentencing and mental culpability.


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