Possessing, brandishing, or using a firearm during the commission of a violent crime or while violating the control substance act brings extraordinarily harsh penalties under federal law. Congress enacted a network of federal statutes that empowers the U.S. Department of Justice (DOJ) to prosecute a wide range of crimes involving firearms in federal court.
Although many gun crimes are prosecuted in state courts, the federal courts also have jurisdiction to prosecute federal crimes based on the same alleged criminal conduct. This is called concurrent jurisdiction. The determination of which criminal cases are prosecuted in federal court often depends on the priorities set by the DOJ.
If you or your family member are facing federal charges involving a gun-related crime, you need to contact an experienced federal criminal defense lawyer near you. In Tampa, the Stechschulte Nell Law Firm has criminal defense lawyers with the federal court experience needed to counter the efforts of federal prosecutors.
With extensive knowledge of both substantive and procedural law, Stechschulte Nell understands federal prosecution tactics. Whether at trial or during pretrial proceedings, our mission is to guide your case to the best resolution for you and your family.
How Does a Federal Court Get Jurisdiction to Prosecute a Gun Crime?
Federal jurisdiction over an alleged gun crime can arise from the mere fact that the gun crossed state borders, even if the interstate travel of the gun occurred when the firearm was shipped from its manufacturer to the original gun dealer years before the alleged crime. The U.S. Alcohol Tobacco and Firearms (ATF) agency can trace the origin of most firearms by their serial numbers.
But federal prosecutors choose to prosecute gun crimes they consider to be the most serious and those committed by convicted felons and alleged career criminals. Federal jurisdiction can be based on the crime’s commission on federal property or the crime touching upon interstate commerce.
What Are the Penalties for Using a Gun During a Violent Crime or a Drug Crime?
The federal statute applying to the use of a gun during a violent or drug-related crime is found at 18 U.S.C. Section 924(c). The penalties associated with these offenses are especially threatening because they must be consecutive to any other sentence imposed by the court.
The law provides as follows:
“any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
- shall be sentenced to a minimum 5 years or more,
- if brandished (shown), a minimum of 7 years or more,
- if discharged (fired), a minimum of 10.
The law also distinguishes between the type of gun used in violent or drug-related crimes to determine the minimum prison sentence that must be imposed:
- Possessing a short-barreled rifle or shotgun, or a semi-automatic assault weapon when committing a violent crime or drug crime brings a minimum consecutive prison sentence of 10 years.
- Possessing a machine gun, destructive device, or a firearm silencer during the crime carries a mandatory minimum of 30 years in federal prison.
Prior Conviction of Using a Gun During a Violent Crime or Drug Crime?
If a defendant is convicted under this § 924(c) after already suffering a final conviction under this same section of the law, the minimum prison sentence is 25 years consecutive to any other sentence imposed for the underlying offenses.
And if the person previously convicted under this section is now convicted again, this time with a machine gun, destructive device, or silencer, they will be sentenced to life imprisonment.
What Drug Crimes or Violent Crimes Can Be Prosecuted Under 18 U.S.C. 924(c)?
Not every federal gun charge qualifies for prosecution under this extremely strict law that carries such severe consecutive prison sentences. For example, a felon in possession of a firearm could be indicted in federal court and face a prison sentence of five years.
Drug Crimes
Any defendant who violates the Controlled Substance Act or the Controlled Substance Import Export Act while possessing, brandishing, or “using” a firearm is subject to prosecution under the terms of §924(c) outlined above. However, thousands of drug offenses are committed in the United States every day by people who possess a firearm. Not all such crimes are brought to federal court.
The Department of Justice reserves its prosecutorial power for those involved in large-scale drug conspiracies, drug trafficking, and violent crimes committed by gang members involved in the drug trade. But they may also indict and prosecute smaller drug offenses if the targets of the investigation have prior felony convictions or may be characterized as career criminals. That includes anyone who is accused of committing a violent crime or a drug offense after having suffered two prior convictions for those offenses.
What Crimes of Violence Count?
The federal law we are discussing under which a person who commits a violent crime with a firearm can be prosecuted and sentenced to a mandatory minimum consecutive prison sentence uses the term “violent crime” to include any offense fitting this description:
Any felony that involves the use, attempted use, or threatened use of force against an individual or property.
As you can see, by that definition, the predicate “violent crime” could be an aggravated assault, robbery, extortion, kidnapping, murder, or sexual assault.
What Is the Federal Definition of “Use” of a Firearm?
For purposes of this statute’s application, a person “uses” a firearm in the furtherance of a drug crime or a violent crime if it is employed in some fashion, brandished, and even if only referred to by the offender.
Why would referring to a firearm constitute “use”? As the theory goes, referring to the gun during the commission of the crime makes the presence of the gun known to the victim, even if they don’t see it. The reason the offender mentions the gun is to convince others that the firearm is available to inflict injury if necessary.
Tampa Firearm Crime Defense
If you are charged with using a firearm during a drug-related or violent crime, it is important to understand the severe consequences that you could face. The federal court system takes these charges very seriously and will prosecute those who use firearms illegally to the fullest extent of the law.
Working with an experienced federal criminal defense lawyer at Stechschulte Nell Law can help you navigate this process and determine a strategy for defending yourself against these serious charges.
Call our attorneys for a case review today at 813-280-1244.
