Federal Gun Charges Under 18 U.S.C. § 924(c) in Miami

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012, in state and federal court. Our office answers 24 hours a day.

Three Ways to Charge It

Using or carrying a firearm during and in relation to the crime (Pattern Instr. O35.2, Elements). The Government must prove:

1. The defendant committed the drug-trafficking crime or violent crime charged in another count.
2. During and in relation to that crime, the defendant knowingly used or carried a firearm.

"Use" requires active employment, such as brandishing; having the gun nearby is not enough. "Carry" means having it on the person or transporting it, such as in a vehicle. "In relation to" means the gun had some purpose or effect, not there by accident or coincidence.

Possessing a firearm in furtherance of the crime (O35.3, Elements): the gun helped, promoted, or advanced the crime in some way.

Both theories in one count (O35.4, Elements).

The Mandatory Minimums

• 5 years for a first § 924(c) offense; 7 years if the gun was brandished; 10 years if it was discharged, even accidentally.
• 10 years for a short-barreled rifle or shotgun or a semiautomatic assault weapon; 30 years for a machine gun, a destructive device, or a gun with a silencer or muffler.
• 25 years for a violation after an earlier § 924(c) conviction has become final, and life if that gun is a machine gun, destructive device, or silencer-equipped.
• If someone is killed with the firearm and the killing is murder: death or any term of years up to life.

No § 924(c) sentence may run concurrently with any other sentence. Conspiring to commit a § 924(c) offense carries up to 20 years. The jury must find the facts that raise the minimum (brandishing, discharge, type of gun) beyond a reasonable doubt (O35.8-O35.10, listed on our Elements index).

Aiding and Abetting

Under O35.5-O35.7, a person who never touched the gun is guilty only if he or she actively participated in the underlying crime with advance knowledge that another participant would use, carry, or possess a firearm, learned early enough to reasonably walk away. For brandishing, it is enough to know a participant intended to brandish if the need arose. No advance knowledge of a discharge or of the type of gun is required.

What Counts as the Underlying Crime

A drug-trafficking crime is any felony under the federal drug laws. A crime of violence is a felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The judge decides this as a question of law, generally by looking at the elements of the offense, not at what the person actually did. The statute's broader "substantial risk" definition still prints in the Code, but the U.S. Supreme Court struck it down as too vague, and some offenses, such as attempted Hobbs Act robbery and certain conspiracies, have been held not to qualify.

Related: The Armed Career Criminal Act

Under § 924(e), a person convicted under § 922(g) with three earlier convictions for a "violent felony" or "serious drug offense," committed on different occasions, faces a 15-year minimum with no probation. Courts use the same elements-based approach for "violent felony," that law's catch-all risk clause was also struck down, and a jury must decide the different-occasions question. See Gun & Weapons Charges.

Defense Themes

• No underlying crime, no § 924(c). Presence is not "use" or "furtherance." A gun in a closet is not automatically connected to the crime.
• Possession, knowledge, and advance knowledge in shared homes and co-defendant cases. The search itself may be challenged; see Motions to Suppress.

What to Do First

1. Don't answer questions about the gun without a lawyer.
2. Prepare for the detention hearing. For a § 924(c) charge, the law presumes no release conditions are enough, but that presumption can be rebutted.
3. Non-citizens: see Immigration Consequences.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

The gun was never fired or shown. Can I still be charged?

Yes, as possession in furtherance, with the 5-year minimum, if the Government proves the gun helped, promoted, or advanced the crime.