Guns and Drugs in Pennsylvania and New Jersey Federal Courts
Federal law imposes severe penalties on the possession of a firearm during a federal drug trafficking offense. Specifically, Section 924(c) requires a federal judge to impose certain consecutive mandatory minimum sentences where a defendant:
A) uses or carries a firearm;
I) during and in relation to any crime of violence which may be prosecuted in a court of the United States; or
ii) during a drug trafficking offense which may be prosecuted in a court of the United States; or
B) possesses a firearm in furtherance of such offense.
This means that there are three ways that a defendant can be prosecuted for having a gun while selling drugs. The defendant can be prosecuted for 1) the use of the weapon during the crime, 2) carrying the weapon while committing the crime, or 3) possessing a firearm in furtherance of the underlying crime.
In order to show that a defendant used a gun during a drug trafficking offense, prosecutors must show the active employment of the firearm. This generally means actually using the gun in the common sense of the word - firing it, attempting to fire it, displaying it, brandishing it, or striking someone with it. Simply having a gun nearby for protection is unlikely to qualify as the use of the firearm.
It is often easier for the prosecution to prove that someone “carried” a firearm during a federal drug trafficking offense than that the person used it. For example, carry has often been interpreted as being synonymous with possessed, and there are two types of possession. First, there is actual possession in which a defendant physically has a gun on his person such as in a pocket. Second, there is a constructive possession. Constructive possession is a doctrine which means simply that the person has dominion and control over the gun. This allows for a prosecution even where the defendant does not physically have the gun on them such as where a gun is hidden somewhere in a car. Constructive possession is harder to prove because prosecutors are not always able to show that the defendant actually knew about or controlled the gun.
Finally, prosecutors can show that a gun was used in furtherance of a specified crime by showing that the gun was possessed, either actually or constructively, during and in relation to a gun crime. This generally means that “the defendant intended the weapon to be available for use during the drug transaction, that the defendant availed himself of the weapon and that the weapon played an integral role in the drug offense.” Thus, this is a higher bar to prove than possession or simply use.
What is a drug trafficking crime that would trigger the mandatory minimum?
Federal law also provides the definition for a drug trafficking crime. Under 18 U.S.C. Section 924(c), a drug trafficking crime is:
[A]ny 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. (importation, transshipment of controlled substances), or chapter 705 of titl e 46. [46 U.S.C. App. §1901, et seq. (manufacture, distribution or possession with intent of controlled substances on board vessels)].”
Whether a specific offense qualifies as drug trafficking crime is sometimes the subject of litigation, but this mandatory minimum generally applies to the sale of drugs while possessing a firearm.
It is important to note that a defendant could also face vicarious liability, meaning that if a co-defendant or co-conspirator used a gun as part of a drug trafficking offense, the defendant could be on the hook for the co-defendant’s mandatory minimum if the defendant knew or it was reasonably foreseeable that the co-conspirator would have a gun.
What is the federal mandatory minimum for possessing a gun while selling drugs?
The mandatory minimums for possessing a gun while selling drugs can be staggering in federal court. For example, a first offense carries a mandatory minimum of five years consecutive to any other sentence. If the firearm was brandished, then the mandatory minimum increases to seven years. If the firearm was fired or was an illegal shotgun or rifle, then the mandatory minimum becomes ten years. Finally, if the gun was a machine gun or a destructive device like a bomb, then the mandatory minimum is thirty years.
The penalties become even more severe for a second or subsequent offense. For a second offense, the mandatory minimum becomes 25-years or life for a machine gun or bomb. If a death results from the use of the gun, then the penalties can be even worse.
It is important to note that these mandatory minimums are only the minimum sentence that a federal just must impose following a conviction and that the judge can actually impose more time than the mandatory minimum. The Third Circuit Court of Appeals, which handles appeals arising from federal cases in Philadelphia and New Jersey, has ruled that although the statute does not explicitly reference a maximum potential sentence, a violation of 924(c) can actually be punished by a maximum sentence of life in prison.
What are the defenses to charges of possessing a gun while committing a drug trafficking offense?
Fortunately, there are defenses to these serious charges. As with many possessory offenses, the defenses could include:
Motions to Suppress. If the police or federal agents did something illegal during the investigation of the case, it may be possible to have the drugs or guns and the charges dismissed. For example, if agents raided a home without a search warrant and found the gun which was allegedly used as part of the offense, it could be possible to have the gun suppressed, which would eliminate the prosecutor’s ability to bring the gun charges. Likewise, if police conducted an illegal interrogation by failing to provide Miranda warnings, it could be possible to have a defendant’s inculpatory statement suppressed.
Challenging Possession. In many gun cases, it may be possible to challenge whether the defendant actually possessed the gun. This could be through challenging the credibility of the agents or officers on cross-examination where they claim that the gun was actually on the defendant or by showing that the defendant did not actually know about or have control of a firearm in a case involving constructive possession allegations.
Challenging Drug Trafficking. As the statute makes clear, the mandatory minimum only applies where there is some relationship between the firearm and gun trafficking. Even if prosecutors in the Eastern District of Pennsylvania can prove that the defendant possessed the gun, it may be possible to challenge the allegations that the defendant was engaged in drug trafficking. This would be a defense to the gun charges as well because the gun charges are dependent on the drug trafficking charges.
These are just a sample of potential defenses for a gun and drug case, and there may be other defenses which apply in your case. Further, in some cases, prosecutors may have strong evidence, and it may be possible to negotiate a better deal for the client so that the client can avoid these extreme mandatory minimum sentences. Our experienced federal gun charges lawyers have the experience and expertise to fight your case and help you obtain the best possible result.
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FAQs
What is the penalty for drug trafficking in the US? ›
For many Schedule I and II controlled substances, the first trafficking offense is punishable by at least 5 years in prison. If someone was seriously injured in the process, the minimum sentence is moved to 20 years. Fines for a first individual trafficking offense can be up to $5 million.
Is possession of firearms in furtherance of a drug trafficking crime? ›Section 924(c)(1) makes it a crime for anyone to knowingly possess a firearm in furtherance of a drug-trafficking crime or crime of violence. To prove the element of possession, the government must show that a defendant knowingly possessed a firearm and that possession was “in furtherance” of the underlying crime.
What is the penalty for 18 USC 922g1? ›18 USC §§842(h); 922(i), (j) & (u). Punishable by up to 10 years imprisonment. A. May not receive, possess, conceal, store, pledge or accept as security for a loan, barter, sell or ship or transport across a state line any stolen firearm, ammunition or explosive.
What is the federal firearms trafficking statute? ›Federal law prohibits gun trafficking and straw purchasing,22 including prohibiting any person from selling firearms to a person the seller knows or has reasonable cause to believe intends to engage in trafficking and straw purchasing.
What are the consequences of drug trafficking? ›Prison sentences: Convictions for drug trafficking and distribution can result in lengthy prison sentences, with mandatory minimums often ranging from five to ten years. In some cases, particularly for large-scale operations or repeat offenses, sentences can be even longer.
What are the federal drug laws? ›FEDERAL DRUG LAWS
Possession, use, or distribution of illicit drugs is prohibited by federal law. Strict penalties are provided for drug convictions, including mandatory prison terms for many offenses. Penalties increase significantly where use of the illicit drugs results in death or serious bodily injury.
Drug trafficking is generally defined as the production, distribution, and sale of illegal drugs including cocaine, LSD, PCP, heroin, and marijuana. On the other hand, drug possession refers to simply being caught while having illegal drugs.
How are firearms trafficked? ›A gun that is used in a crime is often discarded, sold, or given away. During the exchange, it might be transported to another city or state, the serial number might be filed off, or it might be used in another crime.
What is the crime of drug trafficking? ›Drug trafficking, also known as drug distribution, is the crime of selling, transporting, or illegally importing unlawful controlled substances, such as heroin, cocaine, marijuana, or other illegal drugs.
What is the federal statute for felon in possession of a firearm? ݤ 922(g)(1), the crime of Felon in Possession of a Firearm is committed when a convicted felon ships, transports, or possesses any firearm or ammunition that has been distributed in interstate or foreign commerce.
What is the penalty for 18 U.S.C. 922? ›
Punishable by up to 5 years imprisonment. 18 U.S.C. § 922(o) makes it unlawful to possess or transfer a machinegun. Punishable by up to 10 years imprisonment.
Which activity is a federal offense under 18 U.S.C. 1030? ݤ1030. Fraud and related activity in connection with computers. (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.
What act made trafficking a federal offense? ›The Trafficking Victims Protection Act (TVPA) of 2000 is the first comprehensive federal law to address trafficking in persons.
Is smuggling guns a federal crime? ›Gun trafficking is a federal crime that falls under the greater umbrella of weapons trafficking which would include ITAR violations and munitions offense. This refers to the movement or transfer of firearms, guns, weapons, parts, or ammunition from a legal market to an illegal market.
How many firearms are trafficked? ›The ATF reports that nearly 60,000 guns are trafficked across state lines each year. “Data & Statistics: Firearm Trace Data”. Bureau of Alcohol, Tobacco, Firearms and Explosives. (2020).
What are the limitations of drug trafficking? ›The statute of limitations for drug trafficking is five years. And the interstate drug trafficking penalties can be harsh, such as a $10,000 fine and five years in prison.
What is drug trafficking simple? ›Drug trafficking is the illegal transporting of or transacting in controlled substances. Under federal law, Title 21, Section 841 makes it unlawful for any person to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
What is ignorance in drug trafficking? ›Ignorance: Lack of knowledge and ignorance has made many fall victim to drug traffickers. People end up trafficking drugs knowingly or unknowingly. The drug trafficker might be a friend of a family that tricks the unsuspecting person into carrying illicit drugs for them.
Is drug possession a federal crime in the US? ›Federal Drug Possession Penalties
Federal drug possession charges may carry heavier penalties that state possession charges. Simple possession can result in up to a year imprisonment, with fines of $1,000 or more. A second possession conviction can result in up to 2 years in federal prison, and fines of $2,500 or more.
The average length of a sentence for drug possession on state charges is about 20 months, or a little bit less than two years. The average length of a sentence on federal charges is 81 months or less than 7 years.
What are the 5 types of controlled substances? ›
Controlled substances include opioids, stimulants, depressants, hallucinogens, and anabolic steroids.
What are the 4 types of possession? ›- Constructive Possession. Constructive possession is often involved in criminal cases. ...
- Criminal Possession. ...
- Joint Possession. ...
- Possession and Intent.
What Are the Three Types of Human Trafficking? While many forms exist, the three most common types of human trafficking include sex trafficking, forced labor, and debt bondage.
What is the difference between drug trafficking and drug abuse? ›Drug abuse: Referring to the illegal use of drugs even if the user in question is not addicted to drugs, but also considering the legal use of some drugs that can be harmful or even fatal (such as alcohol consumed by an adult pregnant woman). Drug trafficking: The illegal sale of or dealing in controlled substances.
How much is gun trafficking worth? ›Global market value
Though one of the least profitable illegal trades, arms trafficking made an estimated $1.7-3.5 billion in 2014, making it the 9th largest criminal market, which was valued at $1.6-2.2 trillion.
ATF's National Tracing Center is authorized to trace firearms by the Gun Control Act of 1968. ATF's National Tracing Center is only authorized to trace a firearm for a law enforcement agency involved in a bona fide criminal investigation.
Where are guns stolen from the most? ›Meanwhile, the ATF reported that the top five states for gun thefts are Mississippi, Alabama, Louisiana, South Carolina and Georgia. Those states have other factors in common, including permissive gun laws, high rates of gun ownership and high rates of gun violence.
What are the 4 major drugs that are associated with crimes? ›Fact Sheet: Drug-Related Crime
Cocaine, heroin, marijuana, and amphetamines are examples of drugs classified to have abuse potential. Drugs are also related to crime through the effects they have on the user's behavior and by generating violence and other illegal activity in connection with drug traffick- ing.
- You unlawfully possessed a controlled substance,
- You knew of its presence,
- You knew of its designation as a controlled substance,
- The drug is listed as a controlled substance in the Health and Safety Code, and.
- There was a usable amount of the controlled substance.
- The exercise of control over the controlled substance;
- Knowledge that the substance was present;
- Knowledge that the substance was a narcotic drug, dangerous drug, prescription-only or other illegal drug; and.
Can a federal felon be around guns? ›
Under federal law, a convicted felon is permitted to possess a firearm when: The conviction has been expunged. The conviction has been set aside. The conviction was pardoned.
Can a felon be around bullets? ›Convicted Felon, 18 U.S.C. § 922(g)(1) See Statute
It is against federal law for a convicted felon to possess [a firearm; ammunition] that was connected with interstate [or foreign] commerce.
In Florida, possession of a firearm by a convicted felon is a second-degree felony, and it is punishable by up to 15 years of imprisonment and a fine of up to $10,000. There is a three-year minimum mandatory sentence for felons who were found in actual possession of a firearm.
What is a 922 G gun charge? ݤ 922(g) prohibits certain persons from shipping, transporting, possessing, or receiving a firearm or ammunition while subject to a prohibition from doing so, most commonly because of a prior conviction for a felony offense.
What are the penalties for 18 U.S.C. 2261a? ›Whoever commits the crime of stalking in violation of a temporary or permanent civil or criminal injunction, restraining order, no-contact order, or other order described in section 2266 of title 18, United States Code, shall be punished by imprisonment for not less than 1 year.
What is the federal mandatory minimum sentencing the 18 U.S.C. 924 C tack on in cases involving drugs or violence? ›Twenty-five-year mandatory minimum terms for multiple offenses must be served consecutively. The mandatory minimum terms range from imprisonment for five years to imprisonment for life; consecutive mandatory minimum terms may exceed 100 years. In each case the maximum term is life imprisonment.
What are the penalties for 18 USC 1343? ›What Are the Possible Penalties for Wire Fraud? Offenders convicted under § 1343 face up to 20 years in prison, fines up to $250,000, or both. If the violation affects a financial institution or involves any benefit related to a presidentially declared major disaster or emergency as defined by the Robert T.
What is federal statute 18 usc section 242? ›Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
What is 18 USC 111 felony? ›18 U.S.C. 111 makes it a federal crime to assault any federal officer, agent, or employee of a U.S. government agency or member of the uniformed services.
What are the sentencing guidelines for federal trafficking? ›- First Offense: Not less than 10 years, and not more than life. If death or serious injury, not less than 20 years, or more than life. ...
- Second Offense: Not less than 20 years, and not more than life. If death or serious injury, life imprisonment. ...
- 2 or More Prior Offenses: Life imprisonment.
What is the Put trafficking victims First Act of 2023? ›
The Put Trafficking Victims First Act aims to fix this deficiency by directing the Attorney General to: Establish an expert working group to identify barriers to data collection on the prevalence of human trafficking and recommend practices to enhance data collection.
What is the United States Government Trafficking Victims Protection Act of 2000 pub l no 106 386 division a 103 8? ›An act to combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude, to reauthorize certain Federal programs to prevent violence against women, and for other purposes.
Is drug smuggling a federal crime? ›Federal Drug Smuggling – 21 U.S.C. § 954. Bringing controlled substances into the United States is referred to as drug smuggling and is a federal crime. If you are being charged with the federal crime of drug smuggling, our federal defense lawyers can and will help.
Is stealing a gun grand theft? ›After Proposition 47 was passed in 2014, thefts of firearms are now known as grand theft firearm if the value of the firearm is worth $950 or greater, or you have a prior conviction for a sexual related offense in California that required you to register as a sex offender, or a conviction for other specific types of ...
What happens if you get caught smuggling? ›The laws when it comes to California drug trafficking is very clear. According to U.S. Code, Title 18, Part I, Chapter 27, anyone that knowingly smuggled goods into the United States that they should have been billed for or are illegal can be sentenced to up to 20 years in prison.
How big is gun trafficking? ›The report shows that from 2017 to 2021, there were 1,023,538 firearms stolen from private citizens. These private thefts make up 96% of all firearms reported stolen during that time period. The data also reveals emerging technological trends.
What is the ATF time to crime? ›What is “time-to-crime”? “Time-to-crime” is the amount of time between the retail sale of a firearm by a federal firearms licensee (FFL) and its recovery by law enforcement. ATF considers a time-to-crime of less than 3 years as a potential indicator of trafficking.
What is the current state of arms trafficking? ›The GI-TOC's Global Organized Crime Index 2021 ranks arms trafficking as the third most prevalent criminal market globally, and is particularly rife in Africa, the Americas and Asia.
How much drugs does it take to be considered trafficking? ›Drug Trafficking Amount
For example, someone found in possession of 1 or more grams of LSD (lysergic acid diethylmide), 5 or more grams of crack cocaine, 500 or more grams of powdered cocaine, or 100 or more grams of heroin will face drug trafficking charges.
Trafficking charges in South Carolina are usually based on the weight of the drug - possession of greater than ten grams of cocaine or cocaine base, four grams of heroin, or ten pounds of marijuana is considered trafficking under South Carolina law.
What is the difference between trafficking and distribution? ›
Distribution is a charge that is determined by the movement of drugs. Trafficking is a charge that is determined by the weight of drugs. The controlled substances do not have to be going anywhere. As long as they reach a certain weight, you can find yourself facing trafficking charges.
What is the maximum sentence for drug trafficking in California? ›California Penalties For Drug Trafficking
Selling or transporting drugs in California is a felony, with penalties including jail time of 3-9 years and a fine of up to $20,000.
Drug trafficking is selling, transporting, or importing illegal drugs. Another name for this crime is drug distribution. Drug trafficking is: A federal crime (the laws are decided by Congress and apply to the entire nation)
What is the statute of limitations on a federal drug crime? ›Is There a Statute of Limitations on Drug Charges? The statute of limitations for drug conspiracy charges varies state by state. However, under the federal drug conspiracy law of 21 U.S.C. Section 846, the government must bring drug charges within five years of committing the crime.
What is the difference between smuggling and trafficking drugs? ›Drug smuggling
Simply moving drugs is smuggling, but if there is an element of selling the drugs, then it goes into trafficking territory.
Inmates serving sentences for no parole offenses will have to serve the mandatory 85 percent of their sentence. The new system will change the way SCDC handles work credits. Previously, inmates were required to have fewer than eight years left to serve before being allowed to earn work credits at the highest level.
Is drug trafficking a felony in SC? ›In the state of South Carolina, trafficking is viewed as a more serious crime than possession with intent to distribute (PWID) or simple possession. Trafficking is always a felony even if there aren't any prior convictions. It is the most serious drug offense there is, according to the SC State Code.
What section is drug trafficking in USA? ›Drug trafficking is the illegal transporting of or transacting in controlled substances. Under federal law, Title 21, Section 841 makes it unlawful for any person to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
What are the 4 stages of trafficking? ›In the first stage, the victims are recruited; in the second, they are transported; and in the third, they are exploited. At the recruitment stage, criminals use many methods to force or trick people into being trafficked.
What are the 4 Ps of trafficking? ›Prevention, Protection, Prosecution and Partnerships: The four 'P's essential to addressing trafficking holistically.
What are the federal drug trafficking penalties 21 USC 841? ›
If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such ...
How is drug trafficking proven? ›Drug trafficking is typically proven by establishing drug possession and then introducing additional circumstantial evidence or witness testimony.
How much coke is a felony in Nevada? ›Trafficking 400 grams or more of cocaine is a category A felony. A conviction of this criminal offense carries a sentence of 15 years to life in prison and up to $250,000 in fines.