Clarifying Mandatory Minimums for Weapons Offenses in New York

As noted in sections I, II and III, the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, also known as the FIRST STEP Act, was signed into law in December of 2018 and brought with it significant sentencing reforms for those charged with, or already convicted of federal crimes. In addition to providing retroactive applicability to the Fair Sentencing Act’s correction of the sentencing disparity for crack and powder cocaine related convictions and broadening the safety valve, which permits judges to ignore mandatory minimum sentences for certain narcotics offenses, the FIRST STEP Act also clarified how mandatory minimum sentences are to be calculated for certain weapons offenses.

Specifically, 18 U.S.C. § 924(c) makes it a crime for any person to use or carry a firearm in furtherance of, or during and in relation to a crime of violence or drug trafficking offense [Note: hyperlink to 924(c) section]. This requires the government to prove that either a drug trafficking offense or a crime of violence was related to the use or possession of the firearm at issue, however, the use of such a weapon by a co-conspirator with regard to either of these offenses will suffice to sustain a conviction. See United States v. Chavez, 549 F.3d 119, 130 (2d Cir. 2008); Garcia v. United States, 15 F. Supp.2d 367, 377 (S.D.N.Y. 1998). Convictions for first offenses carry a five year sentence of imprisonment which must be served consecutively to any sentence received for other convictions. 18 U.S.C. § 924(c)(1)(A). If, however, the firearm at issue was brandished, then the mandatory minimum sentence is increased to 7 years imprisonment, and if the firearm was discharged, the mandatory minimum sentence becomes 10 years imprisonment. Id.

Additionally, if the defendant has a previous § 924(c) conviction, 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). Prior to the FIRST STEP Act, the government could charge multiple § 924(c) counts in the same indictment, which would cause the second and any subsequent § 924(c) counts to carry with them mandatory consecutive 25 year terms of imprisonment even for defendants who had never previously been convicted of a § 924(c) violation. The FIRST STEP Act clarifies that in order for a prior § 924(c) conviction to qualify and enhance the mandatory minimum sentence to 25 years or life imprisonment, the previous conviction must already have been final at the time of the instant offense. In other words, the prior conviction must already have occurred before the new offense was committed. While this provision has no retroactive applicability, it does apply to defendants with pending cases who have yet to be sentenced.