Use or Carrying of a Firearm in Relation to a Crime of Violence or Drug Trafficking Offense in New York
Charges involving the use or possession of a firearm in relation to a crime of violence or drug trafficking offense, in violation of 18 U.S.C. § 924(c), should be treated extremely seriously as convictions for this offense lead to the imposition of lengthy mandatory minimum prison sentences. Indeed, according to the United States Sentencing Commission, 99.8% of all defendants convicted of this crime as of 2015 were sentenced to a term of imprisonment. See United States Sentencing Commission: Section 924(c) Firearms Offenses, available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Section_924c_FY15.pdf (last viewed May 14, 2017).
Worse, 85% of all defendants convicted of § 924(c) violations as of 2015 were also convicted of another crime – most frequently drug trafficking, robbery, or a separate firearms offense – leading to additional periods of incarceration which must be served consecutively to that imposed for any § 924(c) conviction. Id. In addition, an experienced New York federal drug attorneys will report that federal prosecutors are very hesitant to dismiss a § 924(c) charge during plea negotiations, leaving defendants stuck with plea deals with significant prison time included.
Specifically, pursuant to 18 U.S.C. § 924(c), any person who uses or carries a firearm during and in relation to, or in furtherance of any crime of violence or drug trafficking offense, shall, in addition to the punishment provided for such offense, be sentenced to a term of imprisonment of at least five years. 18 U.S.C. § 924(c)(1)(A). If the firearm was brandished and not merely possessed, the mandatory minimum sentence is increased to seven years imprisonment, and if the firearm was discharged, the mandatory minimum sentence becomes 10 years imprisonment. Id. Further, if the firearm at issue was a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the mandatory minimum sentence becomes 10 years imprisonment, and if the firearm at issue was a machine gun or a destructive device, or a firearm equipped with a silencer, the sentence is increased to 30 years imprisonment. 18 U.S.C. § 924(c)(1)(B). Furthermore, if the defendant has previously been convicted of a § 924(c) violation, the mandatory minimum sentence for any conviction becomes 25 years imprisonment, and if the firearm at issue was a machine gun or a destructive device, or a firearm equipped with a silencer, the sentence becomes life imprisonment. 18 U.S.C. § 924(c)(1)(C).
To secure a conviction, however, the government must prove that either a drug trafficking offense or a crime of violence was related to the use or possession of the firearm – although this may be established by proving that a firearm was used or possessed by a co-conspirator. See United States v. Chavez, 549 F.3d 119, 130 (2d Cir. 2008) (“In order to establish that a defendant possessed a firearm within the meaning of § 924(c), the government need not prove that he physically possessed it; proof of constructive possession is sufficient”), e.g., Garcia v. United States, 15 F. Supp.2d 367, 377 (S.D.N.Y. 1998). Additionally, a drug trafficking crime is a term of art defined by statute, and means a felony offense punishable by the Controlled Substances Act (21 U.S.C. § 801, et seq.), or a violation of the Controlled Substances Import and Export Act (21 U.S.C. § 951, et seq.). 18 U.S.C. § 924(c)(2). Further, a crime of violence is defined as a felony that: 1) has an element of physical force – including its threatened or attempted use – against another person or his property; or 2) by its nature involves a substantial risk that physical force would be used in committing the offense. 18 U.S.C. § 924(c)(3); see United States v. Khalil, 214 F.3d 111, 119 (2d Cir. 2000). Either of these is sufficient to support a § 924(c) conviction. Id.
Getting in touch with a federal criminal defense attorney to defend you in any prosecution for the use of a firearm in furtherance of a crime of violence or narcotics trafficking offense is crucial and will ensure that every viable defense is explored and utilized on your behalf. The federal firearms lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless cases, exploiting holes in the prosecution’s evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.