Guns and Drug Trafficking:  Firearms and Mandatory Minimum Sentences under Federal Law

Sentencing Guidelines When Someone Faces Combined Drug Trafficking and Federal Firearms Charges

Drug arrests in North Texas can result in criminal charges under either state or federal law.  If the local police or county sheriff’s deputies are involved, then Texas criminal laws are going to apply.  If you are convicted, sentencing will occur according to state statutes and procedures.  Incarceration will be in a state facility.

However, anyone arrested and charged by federal authorities (e.g., the FBI (Federal Bureau of Investigation) or the DEA (Drug Enforcement Administration) among others) for violation of federal drug laws will enter the federal criminal justice system, which is very different from the Texas system.

Under federal law, defendants face charges defined by federal statutes.  If they make a plea deal or they are convicted at trial, then they will be sentenced according to: (1) the particular criminal statute and its punishment provisions; (2) the United States Sentencing Guidelines, as developed and overseen by the United States Sentencing Commission; and (3) any mandatory minimum penalty requirements established by Congress in specific legislation.

United States Sentencing Guidelines

We have discussed both the United States Sentencing Commission and the United States Sentencing Guidelines Manual, and provided a step by step explanation of how the Sentencing Tables are used to calculate a range of punishment through coordination of “Offense Levels” and “Criminal History.”

For more on how the Sentencing Guidelines and Sentencing Tables work in detail, see:

• Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases; and
• Federal Sentencing Guidelines on Federal Child Pornography Cases.

In sum, the Guidelines are used to calculate possible prison terms using the Sentencing Manual.  By calculating the particular “offense level” for the defendant and comparing it to his or her individual “criminal history category” in the Sentencing Table, a suggested sentence is provided as established by the Sentencing Commission.

As a general rule these guidelines are not mandatory, giving the federal judge the power to make his or her sentencing decision outside the guideline recommendations. However, in some situations there are mandatory minimum penalties established by specific laws passed by Congress.

These mandatory minimum statutes require the defendant to serve a certain amount of time in a federal prison facility.  For details on mandatory minimums, read “Mandatory Minimum Penalties in Federal Sentencing.”

Mandatory Minimum Penalties for Firearms Offenses

Mandatory minimum prison sentences are required in federal cases for a variety of charges.  Congress has decided that some kinds of crimes must carry minimum sentences, regardless of the arguments of defense counsel or the willingness of the judge for leniency.  Federal minimum prison sentences are defined by Congress for charges involving:

• drugs (Controlled Substances Act violations);
• firearms;
• identity theft; and
• child sex offenses (child porn or sexual contact with a minor).

Drug Trafficking and Firearms: Double Whammy

Things get complicated when the accused faces federal charges for drug trafficking and the charges include the allegation that he or she had a gun (firearm) at the time.

Anyone indicted for both drug trafficking and firearms violations is dealing with a very serious sentencing situation.  He faces a “double whammy” of mandatory minimum penalties defined by Congress.

Drug Trafficking

First, he must face the mandatory minimum sentencing required under the federal drug trafficking laws.  See, Methamphetamine Trafficking and Federal Sentencing.

Firearms

Next, he must deal with two independent federal firearms statutes which impose mandatory minimum prison terms:

• Possessing/Using a Firearm in Furtherance of Drug Trafficking or a Crime of Violence (18 U.S.C. § 924(c)); and
• The Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)).

The statutory maximum penalty under each of these federal laws is life imprisonment.

Federal Sentencing: Possession or Use of Firearm in Drug Trafficking

Federal firearms offenders charged in drug trafficking must face potential conviction under firearms laws that carry mandatory minimums under these two subsections of the federal penalty statute 18 U.S.C. § 924.

1.  18 U.S.C. § 924(c): Possessing/Using a Firearm in Furtherance of Drug Trafficking

This federal law makes it a crime to use or to carry a firearm during and in relation to, or possessing a firearm in furtherance of, a “crime of violence” or “drug trafficking crime.”  When a firearm is possessed or used in drug trafficking, 18 U.S.C. § 924(c)) requires that its minimum prison term be imposed by the judge as an additional punishment.  The firearm statute’s sentence is to run consecutively to “… any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the” underlying crime of violence or drug trafficking crime. See, 18 U.S.C. § 924(c)(1)(D)).

Factor: How the Gun Was Used

The statute sets a mandatory minimum penalty of at least 5 years imprisonment. The prison term gets longer, depending upon how the firearm was used:

• If the gun (firearm) was brandished, the mandatory minimum is 7 years;
• If the gun (firearm) was discharged, the mandatory minimum is 10 years.

Factor: Type of Firearm Involved

What type of firearm is involved in the case makes a difference in sentencing.  If the accused is charged with having or using a short-barreled rifle, for instance, then the mandatory minimum is 7 years.  If the firearm was a machinegun, the mandatory sentence is 30 years.  Using a “destructive device” or having a silencer on your pistol also brings a 30 year mandatory minimum penalty.

Factor: More Than One Conviction (Stacking)

If the current charge involves a “second or subsequent conviction” of an offense under 18 U.S.C. § 924(c), then there are longer mandatory minimum penalties of 25 years for each conviction.

As the United States Supreme Court has explained, if the offender is convicted of multiple counts in the same proceeding, this mandatory 25 year minimum prison sentence applies.  All the additional convictions under 18 U.S.C. § 924(c) are considered “second or subsequent” to the first conviction.  Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993).   This is called “stacking” the mandatory minimum sentences.

The result?  Even if the accused is charged under a single indictment, he may end up serving not only the (1) sentences imposed for the drug trafficking charges as well as (2) any other federal charges, but he will face (3) a consecutive sentence under the mandatory firearms sentencing statute.  This can add up to many years behind bars.

Recently, SCOTUS considered the ability of the sentencing judge to use his or her discretion during the sentencing of an offender facing firearms charges alongside drug trafficking allegations.  In Dean v. United States, 581 U.S., 137 S. Ct. 1170, 197 L. Ed. 2d 490 (2017), the Supreme Court explains that the sentencing court is not blocked by the mandatory minimum law.  Nothing in the text of 18 U.S.C. § 924(c) prohibits such consideration by the judge, while Congress has inserted into other laws specific language that prohibits consideration of a mandatory minimum penalty in determining the sentence for other counts of conviction. (See, e.g., 18 U.S.C. § 1028A(b)(3).)  Dean, 137 S.Ct. at 1173.

What does this 2017 SCOTUS decision do?  It makes clear that the judge can consider the sentence imposed for one count of conviction when determining the sentence for other counts of conviction.  The court has the power to reduce the term imposed for a predicate offense in order to compensate for the mandatory term under the firearm sentencing law.

Prior to the 2017 Dean decision, many judges interpreted 18 U.S.C. § 924(c)  to prohibit the court from considering its mandatory minimum penalty when calculating a sentence for an underlying predicate offense.

United States Sentencing Guideline §2K2.4(b)

When calculating the sentence, the judge will look to the United States Sentencing Guidelines (USSG).  In the Sentencing Guidelines Manual, Guideline §2K2.4(b) states the guideline sentence for an offender convicted of firearms use or possession with drug trafficking under 18 U.S.C. § 924(c) is “… the minimum term of imprisonment required by statute.”

If the offender faces conviction on several offenses, including the firearms sentencing statute 18 U.S.C. § 924(c), then the applicable guideline range for the other offenses are determined first.  Afterwards, the court must add the consecutive sentence defined in 18 U.S.C. § 924(c).

As an example, if the charge is trafficking in methamphetamine, then the sentencing guidelines calculation will first be done for drug trafficking. For details in how this is done, read our discussion in Methamphetamine Trafficking and Federal Sentencing.  After this calculation is completed, then under Sentencing Guideline §2K2.4(b), the firearms sentence is added onto the sentence, to be served consecutively.

2.  18 U.S.C. § 924(e): The Armed Career Criminal Act (ACCA)

The second federal crime that involves firearms, drug trafficking, and mandatory minimum prison sentences is the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e).)

The ACCA brings together the federal drug trafficking criminal laws with the federal firearms law found in 18 U.S.C. § 922(g).  Under this federal firearms statute, it is illegal for certain people:

1. to possess a firearm or ammunition that is in or affecting commerce;
2. to ship or transport a firearm or ammunition in interstate or foreign commerce; or
3. to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Those who are prohibited here are: convicted felons, fugitives from justice, persons dishonorably discharged from the armed forces, and aliens who are illegally or unlawfully in the United States.

The ACCA has a mandatory minimum prison sentence of 15 years for any offender who:

• has 3 or more convictions for offenses that qualify as a “serious drug offense” (g., drug trafficking) and
• is convicted of violating 18 U.S.C. § 922(g).

Whether or not the allegation involving “drug trafficking” facing the defendant is covered by 18 U.S.C 922(g) as a “serious drug offense” is a question of law to be decided by the judge.  See, Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). The ACCA does not suggest a formal procedure the government must follow when it intends to seek an enhancement.  Constitutional protections for due process require the offender get adequate advanced notice that the prosecutors will be asking for a mandatory minimum sentence under the ACCA.   For more, read Ethan Davis, The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act, 118 Yale L.J. (2008).

United States Sentencing Guideline §4B1.1

The ACCA, as the second firearms sentencing statute that may apply in drug trafficking cases, involves a federal criminal law designed to target the “career offender.”  The USSG implementing the ACCA is found in Sentencing Guideline §4B1.1.

USSG §4B1.1 defines a “career offender” as:

(1) someone at least 18 years old at the time he or she committed the instant offense, where

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and

(3) the defendant has two such prior convictions.

Under the Sentencing Guidelines, a separate Sentencing Table Calculation (offense levels, criminal history categories) sets up higher penalties for those who are convicted of an offense under 18 U.S.C. § 924(c) and who meet this definition of “career offender.”

Using the Sentencing Guideline Manual, the judge is to apply the greater of the following regarding offense levels:

• the offense level applicable from Chapters Two and Three of the Guidelines Manual;
• the offense level from the career offender guideline at USSG §4B1.1 if applicable; or
• an offense level 34 if the defendant used or possessed a firearm in connection with a crime of violence or a controlled substance offense, or if the firearm was a particularly dangerous type; or
• an offense level of 33, otherwise.

Likewise, the judge is to apply the greater of the following regarding the criminal history category in the Sentencing Table:

• the criminal history category from Chapter Four, Part A of the Guidelines Manual;
• the criminal history category from the career offender guideline at §4B1.1 if applicable;
• Category VI if the defendant used or possessed a firearm in connection with … a controlled substance offense…, or
• Category IV.

Here is an example of the USSG Calculation for someone facing drug trafficking charges and firearms charges and who meets the definition of “career criminal,” as provided by the United States Sentencing Commission in the 2016 U.S. Sentencing Guidelines Manual (page 410):

Example.—The following example illustrates the application of subsection (c)(2) in a multiple count situation: The defendant is convicted of one count of violating 18 U.S.C. § 924(c) for possessing a firearm in furtherance of a drug trafficking offense (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(B) (5 year mandatory minimum, 40 year statutory maximum). 

Applying subsection (c)(2)(A), the court determines that the drug count (without regard to the 18 U.S.C. § 924(c) count) qualifies the defendant as a career offender under §4B1.1(a).

Under §4B1.1(a), the otherwise applicable guideline range for the drug count is 188–235 months (using offense level 34 (because the statutory maximum for the drug count is 40 years), minus 3 levels for acceptance of responsibility, and criminal history category VI).

The court adds 60 months (the minimum required by 18 U.S.C. § 924(c)) to the minimum and the maximum of that range, resulting in a guideline range of 248–295 months.

Applying subsection (c)(2)(B), the court then determines the career offender guideline range from the table in subsection (c)(3) is 262–327 months.

The range with the greatest minimum, 262–327 months, is used to impose the sentence in accordance with §5G1.2(e).

Firearms Guideline Enhancements and Long Prison Terms

Those who are facing charges of either possession or use of a gun or other type of firearm (rifle, etc.) together with drug trafficking charges must be prepared for the possibility of a long prison sentence. Statistically, many of these combined charges (drug trafficking; firearms) have resulted in significant time.

From the United States Sentencing Commission we know the following:

• In fiscal year 2016, offenders convicted under 18 U.S.C. §924(c) received an average sentence of 12+ years (151 months) of imprisonment.
• If convicted of multiple counts under 18 U.S.C. §924(c), the sentence exceeded 27 years of imprisonment (327 months), nearly 250% the average sentence for offenders convicted of a single count under 18 U.S.C. §924(c) (136 months).
• Offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment.

Criminal Defense in Federal Sentencing of Drug Trafficking and Firearms Charges

Experienced criminal defense lawyers who represent those facing a combination of charges involving both firearms violations and drug trafficking offenses recognize that it is imperative to minimize the amount of prison time involved in the sentence.

Usually, this involves negotiation with the federal prosecutor on a plea deal.  Sometimes, things can be worked out so some charges are dropped, especially if there is insufficient proof to establish the allegation.

In other situations, particularly in big drug trafficking operations, the prosecutor may be interested in a plea deal based upon the defendant’s cooperation with the federal investigators.

Offenders can avoid the firearm mandatory minimum sentence when the federal government files a motion requesting it, based upon the defendant’s “substantial assistance.” See, 18 U.S.C. § 3553(e); USSG §5K1.1, and our earlier discussion of this type of departure based upon cooperation with the government in “Mandatory Minimum Penalties in Federal Sentencing.”

Another possible defense is the “safety valve.”  Here, the judge may be allowed to sentence outside the mandatory minimum sentences defined in section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963).  For more details on how this works in a drug trafficking case, read our discussion in “Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.”

Anyone facing federal charges that dovetail both drug trafficking charges and federal firearms violations needs fast and aggressive criminal defense.  The Offices for the United States Attorney General for both the Northern District of Texas and the Eastern District of Texas are extremely experienced with prosecuting drug trafficking cases, particularly those involving methamphetamine.

Plea deals are almost always the result in these situations; rarely do drug trafficking cases go to trial here.  The combination of drug trafficking and guns means the defendant faces serious, mandatory prison time under federal laws imposed by Congress.  Negotiations work to limit those sentences.

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Top 10 Things To Know When Defending Texas Charges Of Manufacture Or Delivery Of An Illegal Substance.”