Firearm Possession During a Drug Crime or Crime of Violence

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).

As per the Fifth Circuit Pattern Jury Instructions, constructive possession can be established when an individual “knowingly possesses the power and intention, at a specific moment, to exercise authority or control over an object, either directly or through another person…” Refer to Fifth Cir. Pattern Jury Instruction 1.33.

According to previous court rulings, constructive possession is established when an individual possesses both the power and intention to exert control over an object, either directly or through another person. In such cases, the government can establish the accused’s dominion or control over the firearm at the time of the 924(c) crime through the use of “affirmative links”.

“Affirmative links” refer to various elements that establish a connection between an individual and a specific location. These connections can be in the form of documents, items, or other tangible aspects. Examples of such “affirmative links” encompass a wide range of possibilities, such as:

• 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.

Frequently, law enforcement employs the concept of constructive possession to implicate individuals in cases where a firearm is found in their residence, even if it is owned by someone else such as a family member or intimate partner.

“Using or Carrying” a Firearm

The second way an individual can commit a violation of 924(c)(1) is by “using or carrying” a firearm during a drug-trafficking crime or a crime of violence. This section delves into the elements that the Government must establish to prove the claim that you used or carried a gun in violation of 924(c).

To demonstrate that a defendant “used” a firearm in a manner that contravenes 924(c), the Government must establish that the firearm was “actively employed” during the commission of the underlying crime. “Active employment” encompasses various actions, such as brandishing, displaying, referring to, striking someone with, or firing the gun.

However, it is important to note that the Government must prove more than mere possession or availability of a gun during a drug crime or crime of violence to establish a “use” under 924(c). Merely having a firearm at the scene of a different crime is insufficient to establish a 924(c) violation, as held by the United States Supreme Court in Bailey v. United States, 116 S. Ct. 501, 506 (1995). Instead, the Government must present evidence demonstrating that the firearm was an operative factor in relation to the underlying crime (Id. at 505-06).

It is crucial to remember that the Government can also bring charges for “carrying” a firearm in connection with a drug-trafficking crime or crime of violence under 18 U.S.C. Section 924(c). The term “carry” implies some form of movement. For instance, court cases have established that “carrying” encompasses carrying a firearm in one’s 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)).

To constitute a violation of 924(c), the firearm must be transported by a defendant or be within their reach during the underlying crime.

Brandishing a Firearm

Brandishing a firearm is defined in Title 18, United States Code, Section 924(c)(4) as follows: “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.” Discharge of a Firearm

An example of brandishing a firearm would be showing it to a bank teller during a bank robbery to coerce the teller into granting access to the safe. It is important to note that the visible presence of a weapon during a fistfight, for instance, has also been considered “brandishing” by certain courts in different circumstances (United States v. Williams, 520 F.3d 414, 421 (5th Cir. 2008)).

The 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

In the context of 924(c), the term “firearm” encompasses any weapon, including starter guns, that is designed to expel a projectile through the use of an explosive. This definition also includes the frame or receiver of such a weapon, firearm mufflers or silencers, and destructive devices. It is important to note that antiques are not considered firearms under this definition. For a detailed explanation, refer to 18 USC § 921(a)(3).

Regarding drug trafficking crimes and crimes of violence, it is worth mentioning that the United States Code provides various explanations for these terms. However, it is crucial to acknowledge that this area of law is highly intricate and subject to constant evolution.

Drug Trafficking Crime

Drug trafficking crime holds a specific meaning as defined in Title 18, United States Code Section 924(c)(2). According to this subsection, the term “drug trafficking crime” encompasses 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.Crimes of Violence

Examples of drug trafficking crimes include drug conspiracy, drug trafficking, and other forms of federal drug crimes. Generally, there is little dispute regarding the classification of an underlying crime as a “drug-trafficking” offense in 924(c) prosecutions. However, there may be rare instances where this becomes a crucial matter that your attorney must be prepared to advocate for on your behalf.

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):

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

1. has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
2. 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.

Penalties for the possession, brandishing, or discharge of firearms in connection with drug transactions or violent crimes are enforced rigorously

Violating 924(c) can lead to a potential life imprisonment as punishment. The severity of the punishment depends on the manner in which the violation occurred. Your offense will fall into one of three categories, with mandatory minimum sentences ranging from 5 to 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

Possession, brandishing, and use of a firearm in drug transactions or violent crimes result in consecutive terms of imprisonment, separate from any other offenses committed.

Under this subsection, no prison term imposed on an individual shall run concurrently with any other sentence, including those imposed for crimes of violence or drug trafficking, in which the firearm was used, carried, or possessed.

For example, if a defendant is charged with and convicted of drug trafficking and carrying a weapon in furtherance of the crime, they may receive five years for the drug offense and five years for the firearm offense. These sentences would be served consecutively, with the defendant serving five years for the drug offense first, followed by another five years for the firearm offense.

If a person completes their entire sentence for possession, discharge, or use of a firearm in drug transactions or violent crimes and is subsequently charged and convicted of another offense, the punishment range begins at 25 years. This mandatory sentence applies.

In cases where a violation of this subsection occurs after a prior conviction under the same subsection has become final, the person shall be sentenced to a minimum imprisonment of 25 years. It is important to note that fines and terms of supervised release may also be imposed in addition to prison sentences.

Don’t Face a Charge Under 18 U.S.C. Section 924(c) Alone

The stakes are incredibly high: a potential lifetime in prison. If you’re seeking legal counsel that is prepared to rise to the challenge of your defense, reach out to Sosinsky Law now to speak with our esteemed federal criminal defense attorney in New York City for a free consultation.