18 U.S.C. § 924(c) (1): Unlawful Possession of a Firearm in Furtherance of a Drug Trafficking Crime
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
With this blog we take no position in the “gun control debate.” This debate in recent years, and especially during the last five months, has crippled our society morally and politically, inflamed increasing anti-Government sentiment, and exacerbated the racial divide that has plagued this country since the Civil War. We refuse to embroil ourselves in the futile shouting match of extremes because our meager voices would be peed on by one extreme and spat on by the other.
But we do have something to report—an issue that has been largely ignored in the OK Corral-like gun debate. In June 2008 the U.S. Supreme Court in District of Columbia v. Heller held that the Second Amendment does “guarantee the individual right to possess and carry weapons in case of confrontation.” In connection with this holding, the Court made the following observations:
- “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”
- “… the inherent right of self-defense has been central to the Second Amendment.”
- The right of self-defense applies with significant force “to the home, where the need for defense of self, family, and property is most acute.”
- “… whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
- The core of the Second Amendment’s right to keep and bear arms is that gun possession must be for a “lawful purpose” such as self-defense.
- “Like most rights, the right secured by the Second Amendment is not unlimited.”
- “Of course the [Second Amendment] right [is] not unlimited, just as the First Amendment’s right of free speech [is] not.”
- As the First Amendment does not protect the “right of citizens to speak for any purpose,” the Second Amendment does not protect “the right of citizens to carry arms for any sort of confrontation.”
- Thus, the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
- “Nothing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Most people, especially gun enthusiasts, who heard or read about the “Heller decision” were not aware or at a minimum did not appreciate the caveats outlined throughout the decision by the Supreme Court. To reinforce these caveats the Court two years after Heller handed down McDonald v. City of Chicago which held that the “central holding in Heller” was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”
Even before Heller was decided, federal law, 18 U.S.C. § 924(c), imposed criminal sanctions when a firearm is used in furtherance of drug trafficking or during commission of a crime of violence. Some criminals instantly believed that Heller rendered § 924(c) unconstitutional if they legally purchased a firearm for defense of self or home. Ron Bryant was one of those people.
In 2007, Bryant and a roommate were small-time drug dealers selling crack cocaine out of a residence in Rochester, New York. The Rochester Police Department executed a search warrant for the residence during which the following evidence was discovered:
“[S]even small baggies containing a white rock-like substance in an unmarked pill bottle on top of the television, approximately $83 cash next to the pill bottle, a loaded 12 gauge Remington shotgun with one round in the chamber and four rounds in the magazine underneath the bed, $700 in a phonebook in a headboard drawer, two digital scales (one in the headboard of the bed and one underneath the bed in a shoe box which also contained pieces of Bryant’s mail), a bottle marked ‘Superior B Crystallized Powder’ containing a powder or ‘cut’ on the headboard, $1,000 in a lockbox underneath the bed, and a box of 12 gauge shotgun shells in the closet.”
Bryant admitted to the police that he occasionally sold drugs out of the residence when his roommate was not there. He said he legally purchased the shotgun and its shells for “protection” because he had been “robbed” a couple months after moving into the residence and started selling drugs. Bryant was tried and convicted on the charges against him in March 2008. Three months later in June 2008 the Supreme Court decided Heller, and three months later the trial court sentenced Bryant to 81 months in prison—twenty-one months on the drug trafficking offense and 60 months on the shotgun possession charge.
Just prior to court imposing sentence, Bryant filed a motion to vacate his § 924(c) conviction, arguing that Heller extended to him a Second Amendment right to possess and use a firearm in defense of his home. He told the trial court that any restrictions on “gun possession” in the home “burden the right of self-defense” and are “constitutionally suspect.” The Government, of course, opposed Bryant’s motion, saying it “would be an absurd leap, both as a reading of Heller and as a matter of common sense, to conclude that the Second Amendment provides a right to possess firearms for unlawful purposes” and that “there is no basis for thinking that the Second Amendment right enshrines a right to possess firearms [for] unlawful activities.”
The trial court agreed with the Government, denying Bryant’s motion. On April 3, 2013, the Second Circuit Court of Appeals, applying its own precedents and concurring with precedents in other circuits, upheld the trial court’s denial of Bryant’s motion to vacate and concluded that the “Second Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of a drug trafficking crime.” More significantly, the Second Circuit said that while Bryant may have purchased and possessed the shotgun for the “core lawful purpose” of self-defense as authorized by Heller, “the right to continue in that possession is not absolute.” The appeals court explained that once Bryant engaged in “’an illegal home business … he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.”
The most interesting aspect of Heller is that it left it up to the States to determine what a “lawful purpose” is in relation to gun possession. For example, legislatures in Connecticut and Maryland recently banned possession of assault-type weapons and their extended magazine clips. It is conceivable that it is unlawful to possess a firearm while driving intoxicated, texting, or even speeding. In any event, these are matters best left up to each individual state legislature to decide.
For us, the Bryant case is illustrative for another significant reason: he was given a sentence of 60 months for gun possession in furtherance of drug trafficking, which is three times harsher than the sentence imposed for drug trafficking (21 months), even though there was no evidence he ever carried, brandished or discharged the weapon. Drug dealers beware…
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization