[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person may be prosecuted in[federal court], uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -

(i) be sentenced to a term of imprisonment of not less than 5
years;

(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.

          Because of the enhanced penalties that exist for using a firearm, it is obviously very important to know what the word “uses” means in the context of this particular law.  However, the statute itself does not define this word, so we have to look elsewhere for guidance. 

          As it so happens, the United States Supreme Court has discussed the meaning of the word “uses” in the context of this particular law on at least three different occasions.

          In the first case, Smith v. United States, Mr. Smith offered to trade a gun to an undercover police officer in exchange for cocaine and was subsequently indicted in federal court for several firearm and drug-trafficking crimes.  On appeal, Mr. Smith argued that “using” a firearm means actually using it as a weapon and not merely bartering with it.

         The Supreme Court rejected this argument stating that:

The firearm’s presence in this case was not the product of happenstance.  On the contrary, far more than in the ordinary case in which the gun merely facilitates the offense by providing a means of protection or intimidation, here the gun was an integral part of the transaction.  Without it, the deal would not have been possible.  The undercover officer posing as a pawnshop dealer expressly told Smith that he was not in the narcotics business and that he did not get involved with drugs.  For a semiautomatic weapon, however, he was willing to see if he could track down some cocaine.

          The second case in which the Supreme Court dealt with the definition of “uses” was Bailey v. United States.  In that case, two individuals named Bailey and Robinson were each convicted of violating federal drug laws as well as the statute that was quoted at the beginning of this article. 

          In Bailey’s case, the police found a loaded pistol inside a bag in his locked car trunk after he had been arrested and while his car was being searched.  In Robinson’s case, an unloaded, holstered gun was found locked in a trunk in her bedroom closet after she had been arrested on several drug-related offenses.  There was no evidence that either Bailey or Robinson actively used the guns in any way.

          On appeal, the Supreme Court ruled in favor of both Bailey and Robinson stating that using a firearm means actively employing it in connection with a crime of violence or drug-trafficking crime.  It is not enough for a prosecutor to prove merely that a gun was located close to drugs or to a defendant.  Because neither Bailey nor Robinson actively employed guns in either of their cases, the Supreme Court reversed their convictions.

          The third case in which the Supreme Court dealt with the definition of “uses” was Watson v. United States.  Unlike the Smith case where the defendant offered to trade an automatic weapon to an undercover officer in exchange for drugs, Mr. Watson did just the opposite:  he offered to trade drugs in exchange for a gun.  That being the case, it was actually the officer who used the gun during the transaction and not Watson.  Accordingly, the Supreme Court reversed Mr. Watson’s conviction.

          If you have been charged in federal court with using a firearm in connection with a crime of violence or a drug-trafficking crime, you should look carefully at how you are alleged to have used that firearm.  Is the prosecuting alleging that you actively employed it or that it was merely present at or near the crime scene?  That distinction could make all the difference in your particular case.

          An article that appears on my West Palm Beach Criminal Lawyer Blog examines one federal case in which the defendant failed to do that and ended up suffering the consequences.

In federal court, there are only two ways to avoid such a sentence:

1. Safety valve; and
2. Cooperation.

In order to qualify for safety valve, the sentencing judge must find that the accused individual meets the following 5 criteria:

(1)  the defendant does not have more than 1 criminal history point, as determined under the federal sentencing guidelines;

(2)  the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the
offense;

(3)  the offense did not result in death or serious bodily injury to any person;

(4)  the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise; and

(5)  not later than the time of the sentencing hearing, the defendant has truthfully provided to the U.S. Attorney’s Office all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the U.S. Attorney’s Office is already aware of the information shall not preclude a determination by the court that the defendant has complied with
this requirement.

The second way of avoiding a minimum mandatory sentence is by cooperation.

Federal law states that “[u]pon motion of the [U.S. Attorney's Office], the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”

It is important to note that while the safety valve provision applies only to drug cases, the cooperation provision applies to any federal crime.

On December 11, 2007, the Commission voted to make the amended guidelines retroactive to cases sentenced before November 1, 2007, with an effective date of March 3, 2008.

Through an amendment effective May 1, 2008 (Amendment 715), the Commission further modified section §2D1.1, revising the way in which combined offense levels are determined in cases involving crack and other drugs. The amendment, which was also made retroactive, provides that 1 gram of cocaine base equals 20 kilograms of marijuana and provides for a two-level reduction in the combined offense level for polydrug cases unless certain exceptions apply.

That is to say, while the sentencing judge should continue to consult the guidelines in arriving at an appropriate sentence, they may depart from the guidelines when it is necessary to do so in order to impose a reasonable sentence utilizing the various factors set forth in Title 18 section 3553 of the United State Code.

1. The conduct associated with the offense; and
2. An accused individual’s criminal history.

For example, if an accused individual has an offense level of 22 and a criminal history category of II, then his guideline range is 46 to 57 months in the Federal Bureau of Prisons.