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Firearm Possession During a Drug Trafficking Crime or Crime of Violence

Possessing a firearm during a drug trafficking crime or during a crime of violence is an aggressive but common charge in federal courts. Generally speaking, the Second Amendment protects the right of citizens to keep and bear firearms. However, Congress has made it a serious federal crime for people to use a gun while committing a crime of violence or a drug trafficking offense.

Under 18 U.S.C. Section 924(c) it is a federal offense to possess, brandish, or discharge a firearm during either (a) a drug trafficking crime or (b) a crime of violence. These charges carry stiff mandatory minimum penalties and can result in a sentence of lifetime imprisonment.

As a result, federal law allows aggressive prosecutors to transform ordinary drug crimes from state cases to federal cases where your life is literally on the line. Federal prosecutors always have significantly more resources such as higher budgets and better investigators such as the FBI. This means that you need to be prepared to fight for your life with an attorney who knows how to battle these more dangerous opponents in court.

If you have been charged with using a firearm in connection with a drug trafficking crime or a crime of violence, do not wait, but call us as soon as possible. We are experienced in fighting 924(c) charges and will not give an inch to any prosecutors trying to take your life away.

Possession, Brandishing and Discharge of Firearms
while Committing other crimes: 
The Law on 18 USC 924(c)

Possession of a firearm without any prior felony convictions is normally not a federal crime. That changes when you possess, brandish, or discharge a firearm in furtherance of certain other federal crimes. Think of this as some sort of use of a gun to commit another federal crime. These situations are covered by 924(c).

According to the United States Sentencing Commission, approximately 2,500 people are convicted of violating Section 924(c) each year. The average sentence for violating 924(c) is 138 months so it is incredibly important that you understand how the law works if you are facing one of these charges.

Congress has indicated that possession, brandishing and use of firearms in furtherance of certain drug trafficking crimes and certain crimes of violence should be charged as separate crimes with separate, consecutive sentences. The specific text of the law which criminalizes these acts is available in Title 18, United States Code section 924(c)(1)(A) and you can read it for yourself here below:

(A)Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States,uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking 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.

There is a lot to break down in this important paragraph.

There are entire casebooks and law review articles devoted to trying to understand what this poorly written law means in practice. Let’s start with the basics.

What does the Government have to prove to find you guilty of violating 924(c)? These are the elements that must be proven beyond a reasonable doubt:

  1. That you committed an underlying “drug-trafficking crime” or “crime of violence”
  2. That you either (a) used or carried a firearm or (b) possessed in furtherance a firearm
  3. During and in relation to the commission of the “drug-trafficking crime” or “crime of violence” from number one.

Each of these elements must be proved beyond a reasonable doubt to a jury. These elements are discussed separately below because they have significant impacts on the mandatory minimum sentences for a 924(c) conviction.

Keep this important idea in mind when reading about the elements of this law. There are only two ways to violate 18 U.S.C. Section 924(c)(1): either (1) by “using or carrying” a firearm during and in relation to a drug-trafficking crime or a crime of violence, or (2) by “possessing” a firearm in furtherance of a drug-trafficking crime or a crime of violence.

“Possession” of a Firearm: “In Furtherance” Devilish Details

Title 18 U.S.C. Section 924(c)(1) makes it a crime for anyone to knowingly possess a firearm in furtherance of a drug-trafficking crime or crime of violence. To prove the element of possession, the government must show that a defendant knowingly possessed a firearm and that possession was “in furtherance” of the underlying crime.

We will discuss different types of possession below. Let’s start with discussing what it means to possess a gun “in furtherance” of a crime which violates 924(c)(1).

There are model jury instructions put out by the U.S. Courts of Appeals which provide incredibly helpful real-world definitions of legal terms. These model jury instructions are examples of the language that a court would give to a jury to define the legal terms that are used when assessing your guilt or innocence at trial.

According to the Fifth Circuit Pattern Jury Instructions, the government must prove that a defendant possessed a firearm that furthered, advanced, or helped forward the underlying crime to prove the “in furtherance” element of 924(c). There are a number of factors that may be considered when assessing if a gun was possessed “in furtherance” of a predicate crime:

(1) the type of drug activity or crime of violence being conducted
(2) the accessibility of the gun
(3) the type of weapon
(4) whether the weapon was stolen
(5) whether the possession of the gun is lawful (i.e., not by a felon)
(6) whether the gun is loaded
(7) the gun’s proximity to drugs or drug profits (the cash)
(8) the time and circumstances where the gun is found.

These 8-factors are looked at to see if a firearm was “in furtherance” of an underlying predicate crime. See United States v. Yanez-Sosa, 513 F.3d 194, 203-04 (5th Cir. 2008). This typically comes up most during drug-trafficking cases, but the analysis is similar for crimes of violence as well.

Types of Firearm Possession

Possession of a firearm in violation of 924(c) can be determined in one of two ways:

Actual Possession: A person has physical possession of an item; in this case a firearm. For example, if a person has a firearm in their pocket or tucked into their pants they have actual possession of a firearm.

Constructive Possession: Constructive Possession may exist when “a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Constructive possession is different from actual possession because the Government must prove to the jury that you had the power and intent to control the firearm. Henderson v. United States, 135 S. Ct. 1780, 1784 (2015).

According to the Fifth Circuit Pattern Jury Instructions, constructive possession can exist where a person “knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person…” See Fifth Cir. Pattern Jury Instruction 1.33.

Other courts have determined that a person has constructive possession when they “ha[ve] both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.” United States v. Booker, 774 F.3d 928, 930 (8th Cir. 2014) (emphasis omitted). In these cases the government may use “affirmative links” to prove that the accused had dominion or control over the firearm at the time of the 924(c) crime..

“Affirmative links” may include documents, items or other things that tie a person to a place. Examples of “affirmative links” may include:

Bills in the name of the accused person;letters addressed to the accused person in the residence; photos or photo albums; or lease or appraisal district records tying a residence to a person.

Oftentimes, law enforcement uses a theory of constructive possession to implicate individuals when the firearm is present in the house but owned by someone else such as a family member or intimate partner. Example: husband in house is convicted felon and is believed to engage in crime. Husband is believed to use a firearm that belongs to his wife. Agents search the house of the husband and wife and find the firearm along with bills and appraisal district records in husband’s name.

Under these circumstances a person could be found guilty of possession of a firearm without showing the firearm to someone (like a bank teller) or shooting the firearm (discharge).

“Using or Carrying” a Firearm

The second way someone can commit a 924(c)(1) violation is by “using or carrying” a firearm during a drug-trafficking crime or crime of violence. This section discusses what the Government must prove if the claim you used or carried a gun in violation of 924(c).

To prove a defendant “used” a firearm in a way that violates 924(c), they must prove that you “actively employed” the firearm in the commission of the underlying crime. “Active employment” is a term of art that may include brandishing a gun, displaying a gun, referring to the gun, striking someone with a gun, or firing a gun.

However, to prove that someone “used” a gun in violation of 924(c) the Government has to prove more than a person simply possessed the gun or had it available during drug crime or crime of violence.

Just having a gun at the scene of a different crime is not enough to prove a 924(c) violation according to the United States Supreme Court. Bailey v. United States, 116 S. Ct. 501, 506 (1995). Instead, the Government has to show something that makes the firearm “an operative factor in relation to,” the underlying crime. Id. at 505-06.

For example, the U.S. Supreme Court has said that the mere receipt of a gun in exchange for drugs is not “use” of a firearm in violation of 924(c). Watson v. United States, 128 S. Ct. 579, 580-83 (2007). This is very important.

Remember, the government can also indict you for “carrying” a firearm in relation to a drug-trafficking crime or crime of violence under 18 U.S.C. Section 924(c). The term “carry” means that there is some type of movement involved. For example, there are cases holding that “carrying” includes carrying a firearm in your pocket as well as in the trunk or glove box of a car. United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007).

The firearm needs to be transported by a defendant or within his reach during the underlying crime to be carried in violation of 924(c).

Brandishing a Firearm

Brandishing a firearm is defined in Title 18, United States Code, Section 924(c)(4): (4)For purposes of this subsection, the term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. An example of brandishing a firearm would be showing it to a bank teller in the course of a bank robbery to convince the bank teller to allow access to the safe.The visible presence of a weapon during a fistfight, for example, has also been considered “brandishing” by certain courts in different contexts. United States v. Williams, 520 F.3d 414, 421 (5th Cir. 2008).

Discharge of a Firearm

Discharge of a firearm has its normal meaning. To discharge a weapon means to fire it. This can also mean, for example, when in the course of an armed robbery, the gun was discharged accidentally. Dean v. United States, 129 S. Ct. 1849 (2009).

Definition of a Firearm

Firearm as used in 924(c) means “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer or any destructive device. The term firearm does not extend to antiques. See 18 USC § 921(a)(3).

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Drug Trafficking Crimes and Crimes of Violence

As we have noted, the terms “drug trafficking crimes” and “Crimes of Violence” are explained in several places in the United States Code. Here they are given specific explanations, but keep in mind that this area of law is incredibly complex and constantly evolving.

Drug Trafficking Crime

Drug Trafficking Crime has a specific meaning that is covered in Title 18, United States Code Section 924(c)(2):

For purposes of this subsection, the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.

Examples of Drug Trafficking Crimes include Drug Conspiracy, Drug Trafficking and other types of Federal Drug Crimes. There is typically little disagreement about whether an underlying crime qualifies as a “drug-trafficking” crime in 924(c) prosecutions. However, there will be rare cases where this is an important issue your attorney needs to be prepared to fight for you on.

Crimes of Violence

There are two listed types of “Crimes of Violence” in federal law. Those types of crimes of violence are listed in Title 18, United States Code 924(c)(3):

(3)For purposes of this subsection the term “crime of violence” means an offense that is a felony and—

(A)has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B)that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Examples of crimes of violence in this sense include Kidnapping and Robbery.

Note that the text of (B) has been deemed unconstitutional in United States vs. Davis.  If you were found guilty of  possession, brandishing or discharging a firearm pursuant to a crime of violence under 18 USC 924(c)(3)(B), you should contact us immediately.

Punishment for Possession, Brandishing and Discharge of Firearms in Furtherance of a Drug Transaction or a Crime of Violence

The punishment for every violation of 924(c) is potentially up to life imprisonment. The only difference in punishment ranges depends on the manner in which a person committed a violation of 924(c). Depending on which category your offense falls into, the mandatory minimum could be 5, 7, or even 10 years in prison.
Possession of a Firearm in furtherance of either a drug crime or a crime of violence has a penalty of at least five years in federal prison.
Brandishing a Firearm in furtherance of either a drug crime or a crime of violence has a penalty of at least seven years in federal prison.
Discharge of a Firearm in furtherance of either a drug crime or a crime of violence has a penalty of at least ten years in federal prison.
18 U.S.C. 924(c)(1)(A). The court cannot sentence a defendant to probation for these offenses. See 18 U.S.C. 924(c)(1)(D)(i).

Terms run consecutively to other sentences

Terms of Imprisonment for possession, brandishing and use of a firearm in furtherance of drug transactions or crimes of violence run consecutive to all other crimes:

(ii)no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

18 U.S.C. 924(c)(1)(D)(ii). Example: Defendant is charged with and convicted of drug trafficking and carrying a weapon in furtherance of a drug trafficking crime. Defendant is sentenced to five years on the drug trafficking crime and five years on the firearm crime. Defendant would serve five years for the drug trafficking crime. Then once that five year sentence is over, the defendant would serve five years for the firearm crime.

If a person serves their entire term for possession, discharging or use of a firearm in furtherance of a drug transaction or a crime of violence and then is charged with and convicted of a subsequent crime, the range of punishment would start at 25 years.  This is a mandatory sentence.  

(C)In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall—

(i)be sentenced to a term of imprisonment of not less than 25 years…

18 U.S.C. 924(c)(1)(C). 

Fines and terms of supervised release can also be assessed in addition to prison sentences.  

Facing a charge under 18 U.S.C. Section 924(c) can be incredibly scary.

The stakes could not be higher: you could go to prison for life. Contact the Law Office of Jeremy Gordon today if you want to speak to an attorney who is ready to rise to the challenge of your defense. 
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