The presence of a firearm in a federal case is generally bad news. 18 U.S.C. § 924(c) threatens long prison sentences for anyone who possesses or uses a firearm in connection with drug trafficking offenses, and the Federal Government is not shy about charging a defendant under the statute. Unfortunately, it does not matter whether you lawfully possessed the firearm, or if it was even loaded — you can still be convicted under the statute if the Government proves certain elements.
What Does the Statute Prohibit?
18 U.S.C. § 924 is the statute relating to the possession of firearms in furtherance of violent or drug trafficking crimes. By its language, the statute prohibits anyone from: 1) using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or 2) possessing a firearm in furtherance of a crime of violence of drug trafficking crime. In short, the statute has two alternative firearm-nexus elements – possession in furtherance of the underlying crime or carry/use during it.
What Does the Government Have to Prove?
In order to convict a defendant under 924(c), the Government has to prove several elements beyond a reasonable doubt. As discussed above, the government can obtain a conviction by proving one of two theories: 1) possession in furtherance of a drug trafficking crime; or 2) carrying or using a firearm during the drug trafficking crime.
“Possession in Furtherance”
The Government can obtain a conviction by showing you possessed a firearm in furtherance of a firearm. Under this avenue, the Government does not need to prove the defendant actually used the firearm. Instead, the Government only needs to show the defendant: 1) committed the underlying drug trafficking crime; 2) the defendant knowingly possessed a firearm; and 3) the defendant possessed the firearm in furtherance of the crime.
The first two elements are self-explanatory. However, it is worth mentioning that a defendant can either be in “actual” or “constructive” possession of a firearm – we discussed the difference in a prior blog. The last element is more involved. To prove the defendant possessed the firearm “in furtherance” of the underlying drug trafficking crime, the Government must show some nexus between possession and the drug crime – in other words, the Government must show possession of the firearm was intended to advance, promote, help, or otherwise facilitate the drug trafficking offense. Courts will often look at multiple factors to determine whether the firearm was possessed “in furtherance” of the underlying offense.
“Use or Carry“
The Government can also obtain a conviction if they prove the defendant use or carried the firearm during and in relation to the underlying offense. Generally, a defendant is deemed to have “used” a firearm when he uses it to acquire drugs or something similar. A firearm is generally deemed “carried” when a person either has the firearm on his person or when it is otherwise readily accessible during the underlying offense (i.e. in a vehicle within arm’s reach).
Penalties for Convictions Under 924(c)
A § 924(c) conviction carries stiff penalties. A defendant’s first conviction will result in a 5-year mandatory minimum sentence – this means the judge generally cannot sentence the defendant to a prison term under 5 years no matter what (unless the Government files a 5K Motion on the defendant’s behalf). If the defendant “brandished” the firearm, the mandatory minimum increases to 7 years, and if the firearm is discharged it increases even further to 10 years.
A second § 924(c) conviction will result in a mandatory minimum sentence of 25 years. At one point, the 25-year mandatory minimum was implicated even if a defendant was charged with two § 924(c) charges in the same indictment. Congress has since changed this – to implicate the 25-year mandatory minimum, the first conviction must have been final at the time of the second, so a second § 924(c) charge in the same indictment will not trigger the 25-year mandatory minimum. Instead, it will trigger a second 5-year mandatory minimum sentence.
Importantly, any mandatory sentence under § 924(c) will run consecutive to a sentence for the underlying offense. So, for instance, if a defendant is convicted of a drug trafficking offense and is sentenced to five years, the five-year § 924 (c) sentence (assuming it is the first conviction) will not begin until the first sentence is complete – resulting in an effective sentence of approximately 10 years. If there is a second 924(c) conviction in the same case, the defendant will face yet another 5-year mandatory minimum sentence, resulting in an overall sentence of 15 years.
How an Attorney Can Help
Clearly, a defendant faces the potential for significant jail time when faced with both drug trafficking crimes and firearms charges. An experienced attorney will be able to help you navigate the potential harsh penalties by establishing that a firearm was not actually possessed or used “in furtherance” of any underlying drug trafficking crime, thereby significantly reducing your potential term of imprisonment. Thus, it is important to have an experienced attorney in your corner when facing federal charges, especially when the charges involve both drug trafficking and firearms.