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D and an accomplice tricked a store manager to stop. D’s accomplice approached the manager with a gun and demanded the store’s deposits, which the manager surrendered. D was later charged with multiple federal offenses, including robbery affecting interstate commerce, and using or carrying a firearm in relation to a crime of violence. The latter carried a sentence of not less than 5 years, if the firearm is brandished, a sentence of not less than 7 years and if the firearm is discharged, a sentence not less than 10 years. The jury indicated on the verdict form that D had “used or carried a firearm during and in relation to a crime of violence,” but did not indicate a finding that the firearm was “brandished.” The presentence report recommended a 7-year sentence and D objected in that the jury did not find brandishing beyond a reasonable doubt and that he was subject only to the 5-year minimum for “using or carrying a firearm.” D contended that raising his mandatory minimum sentence based on a sentencing judge’s finding that he brandished a firearm would violate his Sixth Amendment right to a jury trial. The District Court explained that, under Harris, brandishing was a sentencing factor that the court could find by a preponderance of evidence without running afoul of the Constitution. The Court of Appeals affirmed

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