Mandatory Minimum Sentences in Criminal Drug-Gun Cases in Philadelphia, PA


Due to recent changes to sentencing law in Pennsylvania, the DA in a criminal drug case involving a gun is required to prove, beyond a reasonable doubt, any facts which will increase a mandatory minimum sentence. Under 42 Pa. C.S. § 9712.1, criminal defendants face a minimum of 5 years for drug offenses committed with a firearm. As a result of significant changes to U.S. constitutional law, such facts, like possessing a firearm, are now basically elements of the crime which must be proved beyond a reasonable doubt.

Related: Arrested for Drugs in Pennsylvania? Read About PA’s Mandatory Minimum Sentences

As the result of a 2013 United States Supreme Court case, Alleyne v. U.S., Pennsylvania criminal sentencing law was changed in a significant way. Prior to Alleyne, juries in Pennsylvania drug-gun cases decided whether the DA had sufficiently proved any sentencing factors which increased the statutory mandatory maximum. Judges, however, decided whether there was sufficient evidence of factors which increased the mandatory minimum. In other words, the DA was only required to submit facts which increased a mandatory minimum sentence to the judge at sentencing, and facts which increased the mandatory maximum had to be submitted to the jury. Now, the DA must submit to the jury and prove beyond a reasonable doubt, any sentencing factors which increase either the mandatory minimum or maximum sentence.


Over the past 10 to 15 years, Pennsylvania state courts and federal courts have consistently held that failing to submit sentence enhancement factors to a jury violates the Due Process Clause of the U.S. Constitution and the Sixth Amendment right to a jury trial.

Related: Philadelphia Criminal Drug Arrest News (April 2014)

The first major case was Apprendi v. NJ, a 2000 U.S. Supreme Court case, in which our highest court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)

The Apprendi court decision conflicted with a 1986 U.S. Supreme Court case, McMillan v. Pennsylvania. In that case, the McMillan Court upheld sentence enhancement factors in Pennsylvania’s statute increasing sentences for those convicted of possessing a firearm during the commission of a drug offense such as drug dealing (42 Pa.C.S. § 9712.1). Under the version of 42 Pa.C.S. § 9712.1 at issue in the McMillan case, the sentencing factor, possession of a firearm, was required to be submitted to the judge (not the jury) at sentencing and proved by a preponderance of the evidence, a much lower standard than the beyond a reasonable doubt standard. Essentially, the Apprendi decision overturned the McMillian decision.

Then in 2002, the U.S. Supreme Court revisited the issue and in Harris v. United States. The statute at issue in Harris was similar to Pennsylvania’s drug-gun sentencing law and provided for an increase in the minimum sentence, if the judge, not the jury, decided whether a gun was used during the commission of the underlying offense.  The Harris Court clarified its earlier Apprendi decision and held that judges were allowed to determine facts that increased mandatory minimum sentences.

As a result of these U.S. Supreme Court decisions, Pennsylvania judges determined sentencing factors which increased mandatory minimum sentences, especially in drug-gun cases.

Fast forward ten years to 2013. Last year, the Alleyne Court basically unraveled a decade of Pennsylvania criminal sentencing law in drug-gun cases. Now, an individual who possesses a gun and is arrested for possessing drugs or possessing drugs with intent to deliver, will get the benefit of the Alleyne decision, which requires the DA to prove possession of a gun beyond a reasonable doubt. In addition, those who are appealing their drug-gun cases may be able to also get the benefit of the Alleyne decision.

Related: Major Changes in Pennsylvania Search-Seizure Law, Drug/Gun Cases


If you are facing a mandatory minimum sentence in a drug-gun case in Philadelphia, please call our office for a free case evaluation. (215) 515-0042

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