The John T. Law Firm frequently represents clients who have used a firearm during the commission of a crime. We often receive queries from the general public about the federal law governing these offenses, what constitutes the offense, and the penalties upon conviction.
Federal statute 18 U.S.C. § 924(c) (1) (A) essentially prohibits the use of a firearm or any dangerous weapon during any crime of violence or drug trafficking offense. To support a conviction for the offense, the Government must prove that a defendant (1) committed a crime of violence or a drug trafficking offense; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of a crime of violence or a drug trafficking offense.
Despite a popular misconception, the Supreme Court in a 1946 decision, Pinkerton v. United States, held that a defendant does not have to carry the gun himself to be liable under § 924(c). The Government must simply show that a co-defendant (“co-conspirator”) carried a firearm and that it was reasonably foreseeable to the defendant that the co-defendant would carry the firearm for the defendant to be as culpable as the co-defendant who in fact carried the firearm. This kind of situation most often occurs in drug trafficking offenses.
Unfortunately, due to legal technicalities, it is generally easy for the Government to prove a conspiracy between two or more defendants to possess and distribute drugs. The predicate crime is almost always the easiest offense to prove, but it is more difficult to prove that a non-firearm carrying defendant knew, or foreseeably could have known, that a co-conspirator would possess a firearm in furtherance of the conspiracy. This evidentiary hurdle notwithstanding, the Government has the edge in these cases because the firearm does not have to be present when the drugs are verified, or even when they actually change hands. The Government need only show a “nexus” between the drugs and a deadly weapon for the jury to reasonably make a finding of guilt.
For example, the Government need only show the presence of a firearm at some juncture in the conspiracy, and because guns are considered “common tools of the drug trade” as the courts have noted, the showing that one co-conspirator possessed a gun reasonably implies that one or more of the other co-conspirators involved in their “collaborative criminal venture” should have known about the possession. In effect, the courts have concluded that because drug trafficking is a “dangerous, violent business,” it is reasonably foreseeable that firearms will usually be used in a drug trafficking conspiracy with the knowledge of all the conspirators involved. Why? Because the courts have uniformly concluded that firearms are a necessary tool to protect not only the drugs, but the well-being of all those involved in the trafficking business.
Finally, with respect to the range of § 924 penalties, all of which are considered enhancements of the predicate offense:
• The possession of a deadly weapon mandates a sentence of not less than 5 years;
• The brandishing of a firearm mandates a sentence of not less than 7 years;
• The discharge of a firearm mandates a sentence of not less than 10 years;
• If the firearm possessed is a short-barreled rifle, short-barreled shotgun, or semi-automatic weapon, a sentence of not less than 10 years is mandated;
• If the firearm possessed is a machinegun or is equipped with a silencer (or muffler), a sentence of not less 30 years is mandated; and
• A second conviction of any of the foregoing firearm possessions mandates a sentence of not less than 25 years unless the firearm is a machinegun and/or is equipped with a silence/muffler which mandates a sentence of life imprisonment.
A defendant convicted under § 924 is not eligible for probation and parole is not available to any defendant convicted of a Federal offense.
Further, any sentence imposed under § 924 cannot run concurrently with any other term of imprisonment, including the predicate offenses of drug trafficking and/or violence.
18 U.S.C. § 924 is an exceedingly harsh, punitive statute. It reflects a determined intent by members of Congress, who are accountable to their constituencies, to severely punish “gun violence.” Mandatory minimum sentences are the worst possible sentencing scheme; mandatory minimum sentences which must be served consecutively to any other sentence imposed are worse. Anyone charged with a § 924 offense must secure the services of an experienced attorney in this area of the law. The John T. Law Firm stands ready to provide such services