Federal judges may increase a person's prison sentence for drug trafficking or violent crimes if the incident also involved a firearm. This increase can amount to several years or even decades more of incarceration.
In this article our Las Vegas criminal defense attorneys provide a legal summary of "federal firearm enhancement" laws in Nevada. Scroll down to learn the definition, penalties, and defenses.
A person who is convicted of a violent crime or of drug trafficking in Nevada federal court faces additional prison time if he/she either:
- used a firearm in relation to the violent crime or drug trafficking crime, or
- carried a firearm in relation to the violent crime or drug trafficking crime, or
- possessed a firearm in furtherance of the violent crime or the drug trafficking crime1
In short, federal courts punish people more severely who have been convicted of drug trafficking or violent crimes if firearms were involved in carrying out the crime. Elko NV criminal defense attorney Neil Shouse gives an example:
Example: Thomas traffics a thousand pounds of marijuana into Nevada, and in Reno he sells it to George. During the transaction Thomas has a gun in his pocket. If Thomas is caught, the U.S. Marshals Service could take him to the Washoe County Detention Center for both drug trafficking and using a gun in furtherance of drug trafficking.
The court will not care that Thomas had no plans to use the gun or that George was unaware that Thomas had the gun. If the prosecution can show that Thomas carried the gun to protect himself in case the drug deal went bad, then George would get an increased prison sentence for using a firearm during drug trafficking.
Note that mere possession of a gun does not necessarily guarantee that the defendant will receive enhanced punishments for a drug trafficking or violent crime conviction. Henderson criminal defense attorney Michael Becker explains:
Example: John from Los Angeles dates Joan in Henderson, Nevada. They have an argument over the phone, which ends with John saying that he is on his way to her house to "knock some sense" into her. John drives across state lines to Joan's house and slaps her, who then calls the police.
When the police arrive they see a gun in John's car that he is kept there for years for the purpose of self-defense against carjackers. The police then book John at the Henderson Detention Center, and he is ultimately convicted for committing the federal crime of interstate domestic violence. But the court does not find him guilty of using a firearm in furtherance of the domestic violence.
Here, the court takes the view that John did not use a gun in furtherance of domestic violence because he possessed the gun for carjackers, and the gun was not even accessible to John once he entered Joan's home. But note that a court could rule the opposite way if the prosecution can convince the court that John may have used the gun as "backup" in case Joan fought back.
Also note that someone may be convicted of violating 18 U.S.C. § 924(c) in Nevada even if the gun itself did not travel in interstate commerce. All that matters is that Nevada federal court has jurisdiction over the underlying violent crime or drug trafficking crime.
Definition of "crime of violence":
As explained above, the federal firearm enhancement law applies to cases where the defendant uses a gun in furtherance of either drug trafficking or a "crime of violence." The legal definition of a "crime of violence" under federal law is any offense that is a felony and either:
- involves the use of (or attempted or threatened use of) physical force against the person or property of another, or
- involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Federal law vs. Nevada law
Federal law is narrower than Nevada law regarding whether judges can increase prison sentences for firearm use in the commission of a crime. The first main difference is that defendants under Nevada law face enhanced penalties for using not just firearms but any deadly weapon such as knives in the commission of a crime.
Secondly, Nevada's firearm enhancement laws pertain to nearly any crime, not only drug trafficking and violent crimes. Read more about Nevada laws for using deadly weapons in commission of a crime and Nevada laws for using firearms in burglary and home invasion.
As with any criminal case, how best to fight allegations hangs on the particular facts and available evidence. The following are the two primary strategies a defense attorney may use when fighting federal charges of firearm use during the commission of drug trafficking or a violent crime in Nevada:
- The firearm had no link to the crime. The prosecution has the burden to prove beyond a reasonable doubt that the defendant used or carried the firearm in relation to the drug trafficking or violent crime, or that the defendant possessed the firearm in furtherance of the drug trafficking or violent crime. If the defense attorney can show that the defendant did not possess, use or carry the gun in any way to carry out the underlying crime, then the charge should be dismissed.
- The police conducted an illegal search. If the police may have overstepped their constitutional bounds to find the firearm, the defense attorney could file a "Nevada motion to suppress evidence" asking the court to ignore the evidence discovered through the unlawful police search and seizure. In the event that the court grants the motion to suppress, then the prosecution may not be left with adequate evidence to prove that the defendant even had a gun.
Note that a defendant in federal court can be convicted of using a firearm in furtherance of drug trafficking or a violent crime only if he/she is first convicted of drug trafficking or a violent crime. Thus, the first thing a defense attorney would try is to get the underlying drug trafficking or violent crime charges reduced or dismissed. If successful, the firearm issue becomes moot.
Defendants convicted of violating 18 U.S.C. § 924(c) in Nevada are not eligible for probation. Furthermore, the prison sentence must run concurrently (one after another) with any other prison sentence the judge imposes on the defendant, such as for the underlying drug trafficking or violent crime.
The federal penalties for using a firearm in furtherance of drug trafficking or violent crimes depends on the kind of firearm involved, how it was used, and whether the defendant is a repeat offender:
A first conviction of violating the federal firearm enhancement law:
- If the firearm was a machine gun, destructive device or silencer, the additional sentence carries at least thirty (30) years in Federal Prison.
- If the firearm was a short-barreled rifle or shot gun, the additional sentence carries at least ten (10) years in federal prison.
- If the defendant discharged the firearm, the additional sentence carries at least ten (10) years in federal prison.
- If the defendant brandished the firearm, the additional sentence carries at least seven (7) years in federal prison. ("Brandishing" means to display all or part of the firearm, or to make the presence of the firearm known to another person in order to intimidate him/her regardless of whether the firearm is visible to that person.)
- Otherwise, the additional sentence is five (5) years.
A second or subsequent conviction of the federal firearm enhancement law:
- If the firearm was a machine gun, destructive device or silencer, the additional sentence carries life in federal prison.
- Otherwise, the additional sentence is twenty-five (25) years in federal prison.
Note that a person can receive more than one conviction of violating 18 U.S.C. § 924(c) out of the same incident. An example is a defendant brandishing a firearm at two different times during a drug trafficking operation.
Increase penalties for armor-piercing ammunition
The federal firearm enhancement law also provides penalties for defendants who use, carry or possess armor-piercing ammunition in drug trafficking or violent crime situations:
- If death does not result from the ammunition, the additional sentence carries at least fifteen (15) years in federal prison.
- If death results and the defendant is convicted of the federal crime of manslaughter, the additional sentence is fifteen (15) years in federal prison for voluntary manslaughter or eight (8) years in federal prison for involuntary manslaughter.
- If death results and the defendant is convicted of the federal crime of murder, the additional sentence is either death or up to life in federal prison.
These sentences must also be served concurrently with any other sentences the judge orders for the defendant.
Nevada penalties for using firearms in commission of a crime
A person convicted of a crime in Nevada state court faces up to an additional twenty (20) years in Nevada State Prison if he/she used a deadly weapon in commission of the offense. However, this additional sentence may not be any longer than the sentence for an underlying crime.
There is a harsher rule for the Nevada crime of burglary and the Nevada crime of home invasion. Possessing a deadly weapon during the commission of either of those offenses carries an additional penalty of two to fifteen (2 - 15) years in Nevada state prison.
Arrested? Call . . . .
If you are facing federal charges in Nevada for using a gun in commission of a violent crime or drug trafficking, call our Nevada federal criminal defense attorneys at 702-DEFENSE (702-333-3673) for a free consultation over the phone or in our Las Vegas offices. Our goal is to try to get the entire case thrown out or lessened to laxer offenses. But if necessary we can take the matter all the way to trial in pursuit of an acquittal.
To learn more see our pages on: Nevada federal criminal defense attorneys, Nevada motion to suppress evidence, Bruce R. Thompson federal courthouse, Lloyd D. George federal courthouse, Henderson criminal defense attorney, Elko NV criminal defense attorney, Washoe County Detention Center, Henderson NV Detention Center, U.S. Marshals Service, Nevada crime of burglary, Nevada crime of home invasion, U.S. Attorney's Office, federal crime of murder in Nevada, federal crime of manslaughter in Nevada, Nevada laws for using deadly weapons in commission of a crime, and Nevada laws for using firearms in burglary and home invasion.
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.