Federal Gun Enhancement Charges: Sentencing Enhancements.

A sentencing enhancement increases punishment because specified aggravating facts accompany an underlying offense. While the term is a bit of a broad one, we typically use the term “sentencing enhancement” in federal criminal cases to refer to an adjustment to a criminal defendant’s sentencing range based on a specified aggravating fact. For instance, a statutory firearm enhancement is a type of sentencing enhancement. This differs from, for example, a guideline adjustment, a separate type of federal sentencing enhancement, and a separate federal firearm offense.

How Does a Federal Gun Charge Differ from Other Federal Gun Crimes?

While Section 924(c) does not provide a universal mandatory minimum for every federal firearm charge, it allows for several different mandatory minimums. Because of this, the sentencing exposure for a federal firearm charge can be influenced by the specific statute charged, the underlying offense, and the type of firearm in question. A federal firearm offense may carry no mandatory minimum sentence, five years, or fifteen years; the statutory minimum sentence depends on both the specific firearm statute and the underlying offense (such as a drug offense).

What Other Factors Affect the Sentencing Exposure for a Federal Gun Charge?

Because of the wide range of federal firearm charges, these five and fifteen-year minimum sentences are not the only ones available, though they are among the most common. In addition to the specific firearm statute and the underlying offense, a defendant’s ultimate federal sentencing exposure is influenced by other factors as well, including criminal history, firearm-related facts, and any available procedural challenges. With this in mind, defendants and potential defendants charged under Section 924(c) need to work with an experienced federal gun defense lawyer to construct an informed and strategic defense.

When Can § 924(c) Turn a Firearm Allegation into Five, Seven, Ten, or Twenty-Five Years?

What is Federal 18 U.S.C. § 924(c)?

Federal 18 U.S.C. § 924(c) is a federal gun enhancement statute. The statute covers using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, various qualifying offenses. These qualifying offenses include both federal drug-trafficking felonies and federal crimes of violence.

What is a Qualifying Offense Under Section 924(c)?

The statute requires that a defendant engage in the use or possession of a firearm in relation to the commission of a § 924(c) qualifying offense. These offenses include drug-trafficking felonies and federal crimes of violence, as defined in Section 924(c)(2) and (3). If a person uses or carries a firearm during and in relation to, or possesses a firearm in furtherance of, a drug-trafficking crime or crime of violence as defined in 18 U.S.C. § 924(c)(3), the conduct may qualify as a § 924(c) violation.

What is the Mandatory Minimum Sentence for a First-Time Federal § 924(c) Conviction?

While the mandatory minimum sentence for a first-time federal § 924(c) conviction may be five, seven, ten, or thirty years, it is at least five years. These five years are also “consecutive,” meaning that the prison sentence for the firearm offense is imposed on top of the sentence for the defendant’s underlying felony offense.

When Can a First-Time § 924(c) Conviction Carry More Than Five Years?

If the firearm violation involves brandishing or discharging the firearm, the mandatory minimum sentence can increase to seven or ten years:

• Brandishing - Brandishing a firearm during or in relation to a § 924(c) qualifying offense can increase the mandatory minimum sentence from five years to seven years.
• Discharging - Discharging a firearm during or in relation to a § 924(c) qualifying offense can increase the mandatory minimum sentence from five years to ten years.

When Can a Federal § 924(c) Conviction Carry Twenty-Five Years or More?

A federal § 924(c) violation can carry twenty-five years or more in the following scenarios:

• Second Violation - A § 924(c) violation committed after a prior § 924(c) conviction has become final carries a mandatory minimum sentence of twenty-five years.
• Repeat Violation - A repeat violation may be charged as a separate § 924(c) offense in addition to the underlying charge, and, if committed after a prior § 924(c) conviction has become final, carries a statutory minimum of 25 years of imprisonment.

When Does § 922(g) Possession Become a Fifteen-Year ACCA Case?

The vast majority of federal felon-in-possession charges arise under 18 U.S.C. § 922(g). If the federal sentencing guidelines apply, a first-time federal felon-in-possession charge under Section 922(g) ordinarily carries a statutory maximum penalty of 15 years of imprisonment. However, in certain cases, federal prosecutors can turn a felon-in-possession case into an Armed Career Criminal Act (ACCA) case, which carries a much steeper penalty.

What Is the Armed Career Criminal Act?

The ACCA, or federal statute 18 U.S.C. § 924(e) (which adds additional punishment to convictions under 18 U.S.C. § 922(g)), imposes a mandatory minimum penalty of 15 years of federal imprisonment for qualifying repeat offenders.

When Does the ACCA Apply to a Section 922(g) Case?

To qualify as an ACCA violation, a defendant must meet the requirements set forth in the statute: they must have been convicted of three qualifying predicate offenses in the past. These predicate offenses must either be federal or state felonies, each offense must involve either a violent felony or a serious drug offense, and the offenses must have been committed on occasions different from one another.

What Happens When a Section 922(g) Case Qualifies as an ACCA Case?

If a Section 922(g) offense involves three qualifying prior convictions, federal prosecutors can seek sentencing under the ACCA and increase the federal criminal defendant’s exposure from a 15-year statutory maximum to a 15-year mandatory minimum. This difference has significant implications, including how federal probation officers calculate sentencing guidelines and how a defendant’s prior convictions can lead to substantial increases in their sentencing exposure.

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How Can § 2K2.1 Raise Punishment Without a Separate § 924(c) Count?

As we explained in our discussion on federal firearm charges and sentencing, it isn’t always the case that federal judges will impose an additional criminal charge because a defendant had a firearm. Instead, judges will typically determine the defendant’s potential sentence by applying the federal sentencing guidelines. In cases involving alleged possession or use of a firearm or destructive device, the guideline at issue is § 2K2.1.

Section 2K2.1 sets the offense level for covered firearms offenses and can increase that offense level when specified aggravating facts are present. These include the weapon in question, the defendant’s criminal history, and any connected charges. While the potential for federal sentencing enhancements under § 2K2.1 is immense, defendants and potential defendants can avoid facing these charges if they receive the right legal defense.

What Factors Can Increase a Defendant’s Offense Level Under § 2K2.1?

There are five different circumstances that can lead to an increase in a defendant’s offense level under Section 2K2.1. These include:

• Possession of a stolen firearm or a firearm whose serial number was modified so that the original information is illegible or unrecognizable to the unaided eye can increase the federal criminal defendant’s offense level under § 2K2.1.
• Serial Number, Possessing a firearm with a serial number modified so that the original information is illegible or unrecognizable to the unaided eye can also lead to an increased offense level.
• Multiple Firearms, If a defendant is in possession of multiple firearms, this can also increase the offense level under § 2K2.1.
• Use of a Firearm During Another Felony, If a defendant uses a firearm to commit another felony, this can also increase the federal criminal sentencing guideline punishment.
• Related Charges, If a federal criminal defendant faces additional charges related to the use, carriage, or possession of a firearm, this can lead to an increased punishment as well.

How Can a Federal Firearm Enhancement Be Defeated, Reduced, or Preserved for Appeal?

• Burden of Proof. When the applicable law assigns the burden of proof to the federal government, federal prosecutors must establish the facts required for a statutory firearm enhancement; guideline adjustments generally are resolved by the sentencing court under the preponderance-of-the-evidence standard. If the federal government cannot meet its burden of proof for the purposes of sentencing enhancement, then a defendant cannot be sentenced under the applicable federal gun enhancement statute (or sentencing guideline).
• Mere Possession vs. Use/Carriage. Possessing a firearm is not necessarily enough for the federal government to meet its burden of proof under a federal gun enhancement statute. In fact, mere possession of a firearm alone does not necessarily establish use, carriage, or possession in furtherance of a § 924(c) qualifying offense.
• Suppression. In some cases, if a firearm was obtained in violation of a defendant’s constitutional rights, the firearm may be subject to suppression. In these cases, federal judges may exclude any evidence of the firearm if it is not admissibility in court. However, suppression of the firearm itself may not be enough to eliminate an enhancement if the federal government has independent admissible evidence sufficient to establish the firearm facts for the enhancement charge.
• Plea Bargains. Sometimes, federal prosecutors and federal criminal defense attorneys can work together to negotiate a plea bargain. This is particularly common in cases where a guilty plea includes an agreement to remove (or not bring) any federal firearm charges. While this may remove any sentencing enhancement, it will not eliminate any other underlying criminal charges.
• Preserving for Appeal. Finally, if a defendant cannot avoid an enhancement before trial, his or her federal criminal defense team will need to ensure he or she has effectively preserved any grounds for challenge. If an enhancement is improper, it is the criminal defendant’s responsibility to have ensured they have the opportunity to seek relief from a federal appellate court.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.