When a charge involves the possession or use of a firearm relating to a crime involving violence or drug trafficking, this charge is treated with extreme seriousness. If a person is convicted of this crime, there are lengthy minimum prison sentences that must be handed out. This is a federal offense outlined in 18 U.S.C. 924(c).
In 2015, 99.8% of the defendants who were convicted of this particular crime received a prison sentence. Furthermore, 85% of those defendants were also convicted of another crime or multiple other crimes. Most often, these crimes were robbery, drug trafficking, or another offense regarding firearms. These convictions lead to additional incarceration periods. The law states that the periods must be served consecutively rather than simultaneously.
Any experienced New York defense attorney will tell you that a federal prosecutor will be hesitant to dismiss a charge under this statute during a plea negotiation. This means that a defendant might be stuck with a plea deal that includes significant prison time.
In accordance with the statute, any individual who carries or uses a firearm in relation to a crime regarding drug trafficking or violence, will be sentenced to imprisonment lasting for at least five years. This only regards the possession of a firearm. If the firearm was brandished during the encounter, the minimum sentence increases to seven years imprisoned. If the firearm was discharged during the incident, the minimum sentence is ten years in prison.
Furthermore, if the firearm was a short-barrel shotgun, short-barrel rifle, or semiautomatic weapon, the mandatory sentence is ten years in prison. This remains true regardless of whether the firearm was merely possessed or not. If the firearm was a destructive device, machine gun, or contained a silencer, the minimum sentence becomes thirty years in prison.
If the defendant has a previous conviction under this statute, the mandatory minimum prison sentence is twenty-five years in prison. If a defendant with a previous conviction uses a silencer, destructive device, or machine gun, the minimum sentence is life in prison.
In order to convict a defendant of this offense, the government needs to prove that a violent crime or drug trafficking crime was directly related to the firearm. Precedent does establish that this crime applies when a firearm was possessed or used by a co-conspirator rather than the defendant themselves (United States v. Chavez).
In addition, when a drug trafficking crime applies, this results in a felony offense that can be punishable through the Controlled Substances Act. Alternatively, it might be considered a violation of the Import and Export Act for Controlled Substances.
A violent crime must be a felony that either:
- Has elements involving physical force, including threats of physical force or attempted use of physical force, against another individual or their property, or
- By nature involves substantial risk of physical force being used for the commitment of the offense
Because of the severity of this crime and related charges, it’s imperative that you contact a defense attorney as soon as possible. The law offices of Robert Tsigler are populated with experienced federal and state criminal defense attorneys.
If the prosecution cannot prove that the defendant possessed a firearm, the defendant has a valid defense against this charge. Additionally, the prosecutor must provide sufficient evidence proving the link between the firearm and the associated crime. If the link is insufficient, the charge cannot apply. That said, any other charges regarding the violent or drug trafficking crime will still apply.
If a co-conspirator was the one wielding the weapon rather than the defendant, the defendant is still responsible. However, if the defense attorney can prove the two individuals were not working together, the defendant would not be convicted of this crime.
