Under 18 U.S.C. § 924(c)(1), a person who "during and in relation to any crime of violence or drug trafficking crime . . . . uses or carries a firearm" is subject to a mandatory minimum sentence. In Bailey v. United States, 116 S. Ct. 501 (1995), the Supreme Court held that conviction of a defendant for "use" of a firearm under § 924(c) requires "evidence sufficient to show an active employment of the firearm by the defendant." Id. at 505. The Court rejected the government's contention that storing a weapon near drugs or placing a firearm where it is available for use during a drug transaction constitutes "use" of a firearm under § 924(c). The Court explained that "use" under § 924(c)(1) only "includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at 508.

The decision in Bailey substantially altered prior law concerning the evidence necessary to establish "use" under § 924(c). To assist Federal prosecutors in dealing with the many ramifications of the decision, the Criminal Division sent a memorandum to all U.S. Attorneys, dated December 13, 1995. Please refer to this memorandum for advice on Bailey-related issues, including challenges to prior convictions, and current and future cases prosecuted under § 924(c).