This section contains the nature of the case and procedural background.

Harris (D) sold illegal narcotics out of his pawnshop with an unconcealed semiautomatic pistol at his side. He was arrested under a statute with enhanced sentencing for brandishing or discharging a firearm. The Government proceeded on the assumption that the statute, §924(c)(1)(A), defines a single crime and that brandishing is a sentencing factor to be considered by the judge after the trial. D's indictment said nothing of brandishing and made no reference to subsection (ii). D was convicted and given the 7-year minimum because he had brandished the gun. D argued that brandishing was an element of a separate offense, an offense for which he had not been indicted or tried. The District Court overruled the objection, finding by a preponderance of the evidence that petitioner had brandished the gun, and sentenced him to seven years in prison. In the Court of Appeals for the Fourth Circuit D argued that the statute is unconstitutional in light of Apprendi. The Court of Appeals affirmed. P contends that the statute in question defines a single crime, and the facts in subsections (ii) and (iii) are considerations for the sentencing judge. D contends that Congress meant the statute to define three different crimes.

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