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Criminal Resource Manual

112. Firearms Charges

A recent study of gang members showed that nine in ten members said their gang possessed a stash of guns members could use "whenever they wanted to", and an equal proportion described guns as plentiful "whenever the gang got together". Joseph F. Sheley and James D. Wright, Youth, Guns and Violence in Urban America Tulane University (April 1992). Nearly half described gun thefts as a regular gang activity, and two-thirds said their gang regularly bought and sold guns. Id. Sixty-one percent described "driving around shooting at people you didn't like" as a regular gang activity. Id.

Federal firearms laws provide severe penalties for firearms use by the violent offender or drug trafficker. For example, possession of firearms by convicted felons or drug users can provide punishments of up to ten years imprisonment. 18 U.S.C.A. §§ 922(g), 924(a)(2) (West Supp. 1995). If such possession occurs after one is convicted of three violent felonies or serious drug trafficking offenses, the violator must serve at least fifteen years in prison. 18 U.S.C.A. § 924(e) (West Supp. 1995).

Also, charges under 18 U.S.C.A. § 924(c) can be filed whenever a firearm is used or carried during the course of a violent or drug trafficking crime. 18 U.S.C.A. § 924(c) (West Supp. 1995). The mandatory consecutive and enhanced punishment under this section, which can significantly increase a sentence especially where firearms are used in numerous criminal acts of the gang, make this statute one of the most potent tools in prosecuting gang activity, especially those engaged in multiple criminal acts. See Deal v. United States, ___ U.S. ___, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). For example, if an offender, while using a firearm, robs two federally insured financial institutions or commercial businesses that affect interstate commerce, the offender could face twenty-five years imprisonment for firearms offenses in addition to the sentence received for the substantive robbery charges. 18 U.S.C.A. § 924(c) (West Supp. 1995). If the offender robs three, he or she is facing forty-five years imprisonment in addition to the robbery penalties. Id.

Furthermore, the use of a shotgun or assault weapon adds ten years to a violent crime. Id. If an automatic weapon, silencer or destructive device is used, thirty years imprisonment is added to the underlying charges. Id.

The Violent Crime Control and Law Enforcement Act of 1994 added a new subsection to Chapter 44 of Title 18, United States Code, dealing with firearms offenses. Section 922(x) of Title 18 makes it a crime for a juvenile to possess a handgun or handgun ammunition, or for anyone to transfer to a juvenile a handgun or handgun ammunition. 18 U.S.C.A. § 922(x)(2) (West Supp. 1995). A juvenile convicted of a violation of Section 922(x) faces misdemeanor punishment which is probated for first offenders. 18 U.S.C.A. § 924(a)(5)(A)(i) (West Supp. 1995). Adults violating Section 922(x) also face misdemeanor punishment unless it is proven the adult transferred a handgun or ammunition to a juvenile knowing or having reasonable cause to believe the juvenile intended to use it in the commission of a crime of violence for which felony punishment of up to ten years imprisonment would apply. 18 U.S.C.A. § 924(a)(5)(A)(ii) (West Supp. 1995).

Firearms violations should be aggressively used in prosecuting violent crime. They are generally simple and quick to prove. The mandatory and enhanced punishments for many firearms violations can be used as leverage to gain plea bargaining and cooperation from offenders.