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What is possession of firearm during drug crime
|Thanks for visiting Spodek Law Group – a second-generation law firm managed by Todd Spodek. We have over 40 years of combined experience handling federal firearms cases, drug trafficking charges, and the intersection of both. You might know us from the Anna Delvey Netflix series, our representation in the Ghislaine Maxwell juror misconduct case, or the Alec Baldwin stalking matter. If you’re facing 18 USC 924(c) charges – possession of a firearm during a drug crime – you’re looking at mandatory prison time that stacks on top of whatever sentence you get for the underlying drug offense.
Federal prosecutors love 924(c) charges because they create leverage. You’re already facing a drug trafficking charge with its own mandatory minimum, then they add a gun charge with another 5, 7, or 10 years – and those sentences run consecutively, not concurrently. In fiscal year 2024, the U.S. Sentencing Commission reported 2,522 convictions under section 924(c), and 53.5% of those cases involved drug trafficking crimes. The average sentence was 150 months – over 12 years.
This article explains what 924(c) criminalizes, the mandatory sentences involved, how prosecutors prove the connection between gun and drug crime, and what defense strategies actually work.
Three Ways to Violate 924(c)
You can be convicted if you use a firearm during and in relation to a drug trafficking crime. You can be convicted if you carry a firearm during and in relation to a drug trafficking crime. Or – and this is where most cases get made – you can be convicted if you possess a firearm in furtherance of a drug trafficking crime.
“Use or carry” means the gun is on your person or you’re actively doing something with it during the offense. “Possession in furtherance” sweeps in situations where the gun wasn’t on you but was nearby and connected to the drug activity. The drug trafficking crime has to be a felony under the Controlled Substances Act – distribution of cocaine, methamphetamine trafficking, fentanyl conspiracy all qualify.
Possession in furtherance means the firearm had some role in promoting or facilitating the drug activity. The government has to prove a connection between the two. Gun in your bedroom closet while you were selling drugs out of your car three miles away? That’s not in furtherance. Gun loaded and sitting on the table next to scales, baggies, and $40,000 in cash? That’s clearly in furtherance, even if you never touched it.
Mandatory Sentences That Stack
The baseline mandatory minimum is 5 years in federal prison. If you brandished the firearm, the mandatory minimum jumps to 7 years. If you discharged it, 10 years minimum. For short-barreled rifles or shotguns, 10 years mandatory. For machine guns, destructive devices, or firearms with silencers, the mandatory minimum is 30 years.
What makes 924(c) devastating is that the statute requires consecutive sentencing. The law says: “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” Drug trafficking conviction with a 10-year sentence plus 924(c) possession with a 5-year sentence equals 15 years total. The 5 years for the gun doesn’t start until after you’ve finished the 10 years for the drugs.
Before the First Step Act in 2018, prosecutors could stack multiple 924(c) charges from the same case – 5 years for the first count, then 25 years for the second, all consecutive. Congress changed that, but federal judges still have no discretion to run the 924(c) sentence concurrently with the drug sentence.
How Prosecutors Prove “In Furtherance”
Most 924(c) cases turn on whether the government can prove the firearm was possessed “in furtherance” of the drug trafficking crime. Prosecutors don’t have to show you actually used the gun – they just need to establish it played some role in facilitating the drug activity.
Proximity to drugs or drug profits is huge. Gun in the same room as 2 kilos of cocaine, $85,000 in cash, and a money counter? That’s clearly in furtherance. The closer the gun is physically to the contraband or proceeds, the easier the government’s case.
Accessibility matters. Gun loaded and within arm’s reach of where you were packaging drugs? Prosecutors love that. Gun locked in a safe in another room? Much harder to prove.
Type of drug activity and type of weapon factor in. Large-scale trafficking operations create a stronger inference that firearms are tools of the trade. A high-capacity pistol found next to trafficking quantities of fentanyl looks like protection for a drug operation. An unloaded hunting rifle locked in a gun cabinet where you also happened to sell some marijuana – harder to prove.
Defense Strategies That Actually Work
Challenging the nexus between the firearm and the drug crime is the most effective defense. If your attorney can establish there’s no substantial connection – the gun was in a different location, it belonged to someone else, there’s no evidence you knew it was there – the 924(c) charge falls apart.
Attacking knowledge works in conspiracy cases. You can’t be convicted just because someone you conspired with had a gun – you have to have known about that specific firearm and known it was being used to further the conspiracy’s objectives.
Constructive possession is vulnerable. If the gun wasn’t on your person, prosecutors have to prove you had dominion and control over it. In a shared residence or vehicle with multiple occupants, this can be difficult.
Challenging the underlying drug crime sometimes works. If the government can’t prove the drug charge, the gun charge fails too.
What You’re Actually Facing
When federal agents arrest you with drugs and a gun, they’re building two cases that will run consecutively. The U.S. Attorney’s Office calculates your guideline range for the drug offense, adds whatever mandatory minimum applies, then stacks the 924(c) mandatory minimum on top. There’s no credit for acceptance of responsibility on the 924(c) count if you go to trial and lose.
Prosecutors use 924(c) charges as leverage in plea negotiations. They’ll offer to dismiss the gun charge if you plead guilty to the drug charge and cooperate. Or they’ll stipulate to “possession” rather than “brandishing” to save you 2 years of mandatory time.
Your attorney needs to investigate early – before the indictment if possible, immediately after arrest if not. Challenge the search that led to finding the gun. If the gun gets suppressed, there’s no 924(c) charge.
At Spodek Law Group, we’ve handled federal firearms cases involving drug trafficking across multiple jurisdictions. Our managing partner Todd Spodek – a second-generation criminal defense lawyer with many, many years of experience – has successfully defended clients against stacked mandatory minimums. We’ve represented clients in cases others said were unwinnable.
Federal mandatory minimums don’t go away because you’re sorry or because the judge thinks the sentence is too harsh. Judges are bound by the statute – if you’re convicted under 924(c), they must impose the mandatory minimum and run it consecutive to any other sentence.
If you’re under investigation or charged with possession of a firearm during a drug crime, reach out to us. We’re available 24/7 – the decisions you make in the first 48 hours after arrest affect everything that comes after.