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18 U.S.C. §924(c) “use” and “carry” a firearm in relation to drug trafficking

If you are charged with a §924(c) offense in relation to drug trafficking, your attorney should ensure that the conduct you engaged in is the type of conduct described under the “use” and “carry” elements of the statute. “The phrase in relation to . . . at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence . . . [and] the gun at least must facilitate or have the potential of facilitating, the drug trafficking offense.” Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050 (1993).

Sometimes simply selling a gun and a firearm is not sufficient to constitute use or carry under §924(c). In United States v. Wilson, 115 F.3d 1185, 1192 (4th Cir. Va. 1997), the Fourth Circuit reversed a §924(c) holding, “[t]he tape-recorded conversations and [CI's] testimony reveal that [Defendant] neither bartered nor exchanged the rifle for drugs….[T]he Government [also] failed to elicit testimony from [the CI] that the presence of the firearm influenced his decision or intimidated him into purchasing marijuana from [Defendant].” Id. The court ultimately held that, “Given the facts before us, we are hard-pressed to conclude that the sale of the rifle facilitated [Defendant's] drug trafficking business. It was a completely independent, yet contemporaneous action. Hence the Government failed to present sufficient evidence from which any rational jury could reasonably find that [Defendant's] sale of the rifle while negotiating a drug transaction satisfied the ‘in relation to' element of 18 U.S.C. § 924(c)(1).” Id.

Contrast Wilson to Lomax, in which the Fourth Circuit discussed a number of ways in which a firearm may further or advance drug trafficking. “For example, a gun could provide a defense against someone trying to steal drugs or drug profits, or it might lessen the chance that a robbery would even be attempted. Additionally, a gun might enable a drug trafficker to ensure that he collects during a drug deal. And a gun could serve as protection in the event that a deal turns sour. Or it might prevent a transaction from turning sour in the first place. Furthermore, a firearm could help a drug trafficker defend his turf by deterring others from operating in the same area.” Id; see also United States v. Pena-Torres, 63 F. Supp. 3d 627, 629 (E.D. Va. 2014) (noting that in the sale of the Defendant's firearm followed by drug transaction the firearm would not “provide a defense against someone trying to steal drug profits,” nor could it “ensure that [the Defendant] collects during a drug deal,” nor could it “serve as protection in the event that a deal turns sour,” and therefore did not satisfy the elements of §924(c) (citations omitted)). If you are charged with a §924(c) offense, it is critical, that your attorney closely examine and analyze the evidence to determine whether it satisfies the “use” or “carry” element in §924(c). If it does not, it is possible that the charge against you is dismissed. Harris & Carmichael has extensive experience defending §924(c) cases. Contact us for a free consultation to discuss your case.

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