Gun Possession and Federal Drug Crimes
Federal Drug Trafficking Offenses
While drug trafficking and drug distribution both include the sale of drugs, the transportation of drugs, and the import of drugs, trafficking is a federal criminal offense under 21 U.S.C. Section 841. This statute states that it is illegal for any person to intentionally or knowingly “manufacture, distribute, or possess a controlled substance (or to possess with the intent to do so). A federal prosecutor must be able to prove beyond a reasonable doubt that the person charged with a federal drug trafficking offense distributed or manufactured a controlled substance or counterfeit drug (including prescription drugs) knowingly and intentionally.
Trafficking and possession can look much the same, those charged with trafficking usually have items in their possession at the time of the arrest that suggests they were distributing (selling) the drugs on a much larger scale than for possession. Some suspicious items would include large amounts of cash or drugs, as well as items to further the distribution, such as plastic bags, scales, papers to wrap drugs in, empty capsules, ingredients to “cut” drugs, etc.
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Manufacturing a controlled substance may also play a part in the trafficking charges. This could include growing, producing, or possessing elements involved in making illegal controlled substances such as cannabis seeds or marijuana plants. Creating controlled substances via a chemical process or in a laboratory is the same as growing or producing those elements. Typically, LSD, cocaine, and methamphetamines are created by using such a chemical process.
While trafficking may involve crossing state lines—and most people believe that crossing state lines changes distribution into trafficking—in fact, it has much more to do with the quantity of drugs involved. The location where the defendant is apprehended also goes toward trafficking charges—i.e., bringing an illegal substance into the country or distributing drugs near a school or college—brings higher penalties. Sentences for drug trafficking are usually harsher than those for drug distribution.
What Happens When a Federal Drug Trafficking Offense Involves a Firearm?
Drug trafficking on its own is a very serious criminal offense with significant penalties. When you add a firearm into the mix, the offense becomes even more serious. Mandatory minimum prison sentences are required in federal criminal offense cases for a number of charges, regardless of the arguments of defense counsel or the judge’s willingness to be lenient. This includes charges for drugs and firearms, so when an individual is charged for trafficking drugs and having a firearm, they are truly facing a serious situation.
First, the individual must face the mandatory minimum sentence required under federal drug trafficking laws, then must face sentencing under two federal firearm statutes—18 U.S.C. Section 924(c)—Possessing/Using a Firearm in Furtherance of Drug Trafficking or a Crime of Violence, and 18 U.S.C. Section 924(e), The Armed Career Criminal Act. The statutory maximum penalty under each of these federal laws is life imprisonment. Section 924(c) makes it a crime to use or to carry a firearm in furtherance of drug trafficking crimes. If a weapon is used during the crime of drug trafficking, then a minimum prison term must be imposed by the judge as an additional punishment.
One factor involved in drug trafficking involving a firearm revolves around how the weapon was used; if the gun was “brandished,” during the crime of drug trafficking, then there is a mandatory 7-year minimum sentence. If the gun was discharged during the crime of drug trafficking, there is a mandatory 10-year minimum sentence. The type of firearm brandished or discharged also makes a difference. If the weapon was a short-barreled rifle, shotgun, or semi-automatic assault weapon, the mandatory minimum is 10 years, however, if the gun was a machine-gun type of weapon (or other “destructive” device), that mandatory minimum goes up sharply, to 30 years. Having a silencer on a pistol also increases the mandatory minimum amount of prison time to 30 years.
What this means on a practical level is that even if you have been charged under a single indictment, you could serve the sentence imposed for the criminal offense of drug trafficking, as well as the sentence(s) imposed under the mandatory firearms sentencing statute, effectively adding a considerable number of years to the prison sentence. In 2017 the Supreme Court made the decision to allow a judge to consider the sentence imposed for one conviction when determining the sentence for another criminal conviction.
In other words, the judge will look at the U.S. Sentencing Guidelines; if the individual is facing numerous offenses in addition to the firearms offense, then the sentences for the other offenses are determined prior to the firearm sentence. If the convictions are for drug trafficking and gun possession, sentencing would first be determined for the drug offense, then the firearm sentence is added on, to be served consecutively.
Section 924(e)—the Armed Career Criminal Act makes it illegal for specific people to possess a firearm that affects commerce, to transport or ship a firearm in interstate or foreign commerce, and to receive any firearm or ammunition that has been transported or shipped in foreign or interstate commerce. This Section prohibits those who have been dishonorably discharged from the armed forces, illegal aliens, fugitives from justices, and convicted felons from possessing a firearm in any endeavor that affects commerce—such as drug trafficking. This statute also targets those considered “career offenders.”
Under the statute, a career offender is someone that is at least 18 years old when the criminal offense is committed, has committed either a controlled substance offense or a violent crime, and has two prior convictions that fall under those guidelines. The vast majority of those convicted of 924(c) violations are also convicted of an additional crime—most often drug trafficking.
What is Constructive Possession?
Constructive Possession is important in these types of cases; actual possession of a firearm means you were physically holding the gun during the commission of the drug trafficking crime—or that the weapon was close enough for you to reach. Constructive possession of a firearm, however, means you have control over the place where the weapon was hidden or stored. In other words, if you are committing the act of drug trafficking, and have a gun in your vehicle, then you don’t necessarily need to have the gun on your person to be charged with gun possession, so long as you could have accessed the gun.
Penalties for Federal Drug Trafficking Conviction
The penalties for a drug trafficking conviction will vary, depending on the type of substance, as well as the quantity of the drugs being transported. As an example, you might face federal penalties of 3-10 years for trafficking marijuana or 25 years for trafficking heroin. The “average” drug trafficking federal sentence is five years, even though most of those convicted of federal drug trafficking had little or no prior criminal history. A federal drug trafficking conviction can also result in assets being seized, including bank accounts, real estate, cars, and more.
Defenses to the Criminal Offenses of Federal Drug Trafficking and Gun Possession
It is crucial that you have an experienced criminal defense attorney by your side when charged with federal drug trafficking and gun possession. While your specific defense will depend on the exact nature and circumstances of your charges, some common defenses to gun possession charges include:
- The “weapon” in question was an antique weapon that is exempt from federal gun laws.
- You possessed the gun out of “duress or necessity,” meaning you were under an imminent threat of serious bodily injury or death.
- Law enforcement found the gun through an illegal search with no probable cause.
- You had no criminal intent to actually use the gun.
- You were unaware the gun was in your car, therefore, in your possession.
The defenses associated with drug trafficking include:
- Law enforcement engaged in an unlawful search and seizure; either the stop itself was unlawful, the search warrant was invalid, or there was no probable cause to search you or your car.
- Law enforcement failed to read you your Miranda Rights prior to questioning.
- You did not have actual knowledge of the drug, i.e., it was in your vehicle, but you were unaware it was there.
- You were coerced to engage in drug trafficking or entrapped by law enforcement.
As you can see, a conviction for gun possession and federal drug trafficking could land you in prison for a very long time, as well as bring significant fines—up to $500,000 or more. Federal charges will result in more prison time upon conviction (usually), than state charges, so it is vitally important that your criminal defense attorney be well-versed in federal criminal prosecution, especially gun possession and trafficking. Since federal rules and laws can be very different from state rules and laws, your criminal defense attorney must be schooled in federal laws and must be willing to fight aggressively for your rights and your freedom to avoid a conviction that could result in severe federal penalties.
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You want a team of experienced, passionate federal crimes lawyer that are ready to fight for you. Contact the Ciccarelli legal team today at (610) 692-8700. We serve federal criminal clients throughout Pennsylvania and are convenient to our clients with office locations in Philadelphia, West Chester, Lancaster, Springfield, Malvern, Plymouth Meeting, Lancaster, and Radnor and also available for phone and video meetings. You can have our lawyers provide an honest and thorough evaluation of your case when you call (610) 692-8700 or complete an online contact form to schedule a free, confidential consultation.