When a firearm is involved in a serious felony in Tennessee, the consequences do not stop with the underlying crime. Tennessee law creates a separate, stand-alone offense for using a gun in connection with a “dangerous felony,” and that offense carries a mandatory sentence that must be served consecutively — stacked on top of — the punishment for the felony itself. The result is that a defendant convicted of both the underlying felony and the firearm offense faces two sentences served back to back, with a mandatory minimum on the firearm charge that cannot be probated, suspended, or served through any early-release program.
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For people charged in Davidson County and across Middle Tennessee, this statute is one of the most important — and least understood — sentencing multipliers in the criminal code. It can turn a single incident into a decade or more of additional prison time, and the exact exposure depends on distinctions that are easy to miss: whether the defendant merely possessed the firearm or actively employed it, and whether the defendant had a prior felony conviction at the time. This article explains how Tennessee’s firearm-during-a-dangerous-felony statute works, what qualifies as a dangerous felony, the difference between possessing and employing a gun, the mandatory sentencing tiers, and the defenses a criminal defense attorney can raise.
The Offense and Its Governing Statute
The controlling statute is T.C.A. § 39-17-1324. It creates two related but distinct offenses. Subsection (a) makes it a crime to possess a firearm with the intent to go armed during the commission of, or attempt to commit, a dangerous felony. Subsection (b) makes it a crime to employ a firearm during the commission of, or attempt to commit, a dangerous felony. Both are charged separately from the underlying felony, and both carry their own mandatory penalties.
The key feature of the statute is that it is designed to add punishment. A conviction under § 39-17-1324 does not replace the sentence for the underlying dangerous felony — it is layered on top of it, and the statute requires that the firearm sentence be served consecutively to the sentence for the underlying crime. The statute also strips away the alternatives that might otherwise soften a sentence: a person convicted under this section is not eligible for pretrial diversion, judicial diversion, probation, community corrections, or any other program allowing release into the community before the entire mandatory minimum has been served.
Because the statute operates as an enhancement stacked on top of another felony, its practical effect is to dramatically increase a defendant’s total exposure. Understanding how these mandatory, consecutive terms interact with the rest of a sentence is essential, and it is why this charge deserves close attention from the outset. For a broader look at how required-service sentences work in Tennessee, see this overview of mandatory minimum sentences in Tennessee.
What Counts as a “Dangerous Felony”
The firearm statute only applies when the underlying crime is a “dangerous felony” as the statute defines that term. This is a specific, enumerated list — not every felony qualifies, and a felony committed with a gun does not automatically trigger § 39-17-1324 unless it appears on the list. The dangerous felonies identified in the statute include serious offenses such as:
- Attempt to commit first or second degree murder
- Certain especially aggravated and aggravated kidnapping offenses
- Especially aggravated burglary and aggravated burglary
- Carjacking
- Especially aggravated robbery and, in the statutory scheme, certain robbery offenses
- A drug offense involving the manufacture, delivery, sale, or possession with intent involving a controlled substance
- Certain aggravated assault and arson offenses within the enumerated list
One critical limitation is built into the statute to prevent double counting. The firearm charge cannot be applied when the use or possession of a firearm is already an element of the underlying dangerous felony. For example, an offense that by its own definition requires the use of a deadly weapon may not also support a separate § 39-17-1324 charge, because that would punish the firearm twice. Whether the underlying felony qualifies as a dangerous felony, and whether the gun is already an element of it, are threshold questions that a defense attorney examines closely — because if the answer removes the case from the statute, the mandatory consecutive exposure disappears with it.
Drug offenses deserve special mention. Because certain controlled-substance offenses appear on the dangerous-felony list, a firearm found in connection with an alleged drug sale or possession-with-intent case can convert a drug charge into a case carrying mandatory consecutive prison time. This is a frequent scenario in Middle Tennessee prosecutions, and it links the firearm statute directly to the state’s drug laws. For background on how those offenses are graded, see this explanation of simple possession versus intent to sell in Tennessee.
Possess Versus Employ: A Decisive Distinction
The statute draws a sharp line between two kinds of conduct, and which side of that line a case falls on changes the mandatory sentence significantly. The distinction between possessing and employing a firearm is one of the most important issues in any § 39-17-1324 case.
Possessing a Firearm With Intent to Go Armed
Subsection (a) addresses possessing a firearm with the intent to go armed during the dangerous felony. This is the lower tier. It does not require that the gun was fired, brandished, or displayed — only that the defendant possessed it with the intent to be armed during the crime. A violation of subsection (a) is a Class D felony. It carries a mandatory minimum sentence of three years where the defendant has no prior felony conviction, and a mandatory minimum of five years where the defendant had a prior felony conviction at the time of the offense.
Employing a Firearm
Subsection (b) addresses employing a firearm during the dangerous felony. “Employing” reflects more active use — displaying, brandishing, or using the firearm in the course of the crime, rather than merely carrying it. This is the higher tier, and the penalties climb accordingly. A violation of subsection (b) is a Class C felony. It carries a mandatory minimum sentence of six years where the defendant has no prior felony conviction, and a mandatory minimum of ten years where the defendant had a prior felony conviction at the time of the offense.
The practical difference between the two tiers is enormous. A first-time defendant faces a three-year mandatory minimum for possession but a six-year mandatory minimum for employment — and each of those years must be served consecutively to the underlying felony, without eligibility for probation or early release. Because the label the State attaches determines the floor of the sentence, whether the facts support “possess” or “employ” is often the single most consequential factual dispute in the case. A defense attorney scrutinizes the evidence — witness accounts, video, forensics — to determine whether the higher “employ” theory can be sustained or whether the conduct, at most, amounts to possession.
Mandatory Consecutive Sentencing
The most severe feature of § 39-17-1324 is the requirement that the firearm sentence be served consecutively. Tennessee sentencing law generally gives judges discretion to run sentences concurrently or consecutively depending on the circumstances. This statute removes that discretion for the firearm offense: the sentence for the firearm charge must be served consecutively to the sentence for the underlying dangerous felony, and consecutively to any sentence the person is already serving.
Consider how this compounds. A defendant convicted of a dangerous felony carrying, say, an eight-year sentence, plus a subsection (b) employment charge carrying a six-year mandatory minimum, faces a total of fourteen years — with the six-year firearm portion required to be served in full before any release consideration for that portion. Because the firearm minimum cannot be probated or diverted and is not eligible for early-release programs, the mandatory portion functions close to its face value. This stacking is precisely what the legislature intended, and it is why the presence of a firearm can transform the exposure in an otherwise negotiable case.
The consecutive requirement also affects plea negotiations. Because the firearm charge carries fixed, mandatory consequences, resolving a case often involves negotiating over whether the firearm count remains in the case at all, rather than over the length of that particular sentence. Understanding how consecutive and concurrent sentences interact across an entire case is important to evaluating any offer; this overview of Tennessee sentencing ranges explains the underlying framework.
It is worth emphasizing how this differs from ordinary felony sentencing. In a typical case, a judge weighs enhancement and mitigating factors, considers the defendant’s history and the circumstances of the offense, and exercises discretion in setting both the length of the sentence and the manner in which it is served. The firearm-during-a-dangerous-felony statute deliberately narrows that discretion. The mandatory minimum sets a floor the court cannot go below, the consecutive requirement removes the option of running the term concurrently, and the exclusion from probation and diversion removes the alternatives a judge might otherwise consider for a first-time offender. For a defendant, that means the usual arguments for leniency have limited effect on the firearm count itself — which is why the more productive defense work targets whether the charge applies at all. A resolution that removes or reduces the firearm count is often worth far more to a defendant than a favorable argument about the length of the underlying felony sentence, because the firearm portion is the part of the exposure the court has the least power to soften.
Prior-Conviction Escalation
Both tiers of the offense escalate when the defendant has a prior felony conviction. Under subsection (a), the mandatory minimum rises from three years to five years for a defendant with a prior felony. Under subsection (b), it rises from six years to ten years. This prior-conviction escalation is automatic in the sense that, once the State proves a qualifying prior felony, the higher mandatory minimum applies.
Because a prior conviction can add years to an already mandatory sentence, the accuracy and validity of the alleged prior becomes a genuine issue in these cases. A defense attorney examines whether the prior conviction exists as charged, whether it qualifies under the statute, and whether it was constitutionally obtained. In some situations, a defendant’s earlier conviction may itself be subject to challenge, and if that prior can be set aside, the escalation may not apply. For defendants who believe an earlier conviction was flawed, avenues such as post-conviction relief can be relevant to the picture, because the strength and validity of prior convictions carry forward into future sentencing exposure.
Common Defenses
Although the mandatory nature of the statute can make it feel airtight, several genuine defenses apply, and many of them attack the statute’s threshold requirements rather than the ultimate sentence. A criminal defense attorney evaluates the following in every firearm-during-a-dangerous-felony case.
- The underlying felony is not a “dangerous felony.” If the predicate offense is not on the enumerated list, the firearm charge does not apply. This threshold question can remove the mandatory consecutive exposure entirely.
- The firearm is already an element of the underlying felony. The statute cannot be used to punish a gun twice. Where the use of a weapon is built into the underlying offense, a separate firearm charge may be barred.
- Possess, not employ. Contesting the “employ” theory can move the case to the lower penalty tier, cutting the mandatory minimum roughly in half for a first-time defendant.
- No intent to go armed / no connection to the felony. Under the possession theory, the State must prove the intent to go armed during the felony. A firearm present for an unrelated, lawful reason, or with no connection to the crime, can defeat that element.
- Challenging the prior conviction. Disputing whether a qualifying prior exists, or whether it was validly obtained, can prevent the escalation to the higher mandatory minimum.
- Suppressing the firearm. If the gun was found through an unlawful search or seizure, a successful suppression motion can remove it from the case, undermining both the firearm charge and, often, the underlying felony.
Suppression is often the most powerful tool in these cases. Firearms are frequently recovered during traffic stops, searches of vehicles, or searches of homes, and the legality of how the gun was found can determine whether the charge survives at all. When a firearm is suppressed, the mandatory consecutive sentence attached to it disappears along with it.
Procedure and Middle Tennessee Practical Reality
A firearm-during-a-dangerous-felony charge travels through the courts alongside the underlying felony, because the two are charged together. In Davidson County and surrounding counties, the case typically begins in General Sessions Court, moves to the grand jury, and, if indicted, proceeds to Criminal Court for pretrial litigation and, if not resolved, trial. The firearm count is presented to the jury as a separate charge, and the jury is asked to decide it in addition to the underlying felony.
Because the firearm charge carries mandatory, consecutive consequences that cannot be diverted or probated, it exerts significant pressure on how a case is negotiated and tried. Prosecutors are aware of the leverage the statute provides, and the presence of a § 39-17-1324 count changes the calculus of any plea discussion. A defendant weighing a resolution needs to understand that the firearm portion of a sentence functions very differently from an ordinary felony term — it is fixed, it stacks, and it must be served. That reality makes early, careful evaluation of whether the statute even applies one of the most valuable steps in the defense.
Practically, the defense’s first priorities are to test whether the underlying offense truly qualifies as a dangerous felony, whether the firearm is already an element of that offense, whether the conduct supports employment or only possession, and whether the gun was lawfully seized. Each of those questions can change the exposure by years. Given the stakes, anyone charged under this statute benefits from representation focused specifically on dismantling the firearm count, not just defending the underlying felony.
Frequently Asked Questions
Does this charge add to my sentence for the underlying crime?
Yes. That is the entire purpose of T.C.A. § 39-17-1324. The firearm sentence is a separate mandatory term that must be served consecutively to — meaning stacked on top of — the sentence for the underlying dangerous felony, and consecutively to any sentence you are already serving. It cannot be probated, diverted, or served through an early-release program until the mandatory minimum is complete. A single incident can therefore produce two sentences served back to back rather than one.
What is the difference between possessing and employing a firearm?
Possessing, under subsection (a), means having the firearm with the intent to go armed during the felony — the gun does not have to be displayed or fired. Employing, under subsection (b), means actively using the firearm, such as displaying or brandishing it. The distinction is decisive because possession carries a three-year mandatory minimum for a first offense while employment carries a six-year minimum, and each doubles the analysis when a prior felony is involved. Contesting the “employ” theory is a central defense strategy.
What are the mandatory minimum sentences?
For possession under subsection (a), the mandatory minimum is three years with no prior felony and five years with a prior felony. For employment under subsection (b), it is six years with no prior felony and ten years with a prior felony. Each of these minimums must be served consecutively to the underlying felony and cannot be reduced through probation, diversion, or early release. A prior felony conviction at the time of the offense triggers the higher figure in each tier.
Which crimes count as dangerous felonies?
Only the offenses enumerated in the statute qualify. These include attempted first or second degree murder, certain aggravated and especially aggravated kidnapping, aggravated and especially aggravated burglary, carjacking, especially aggravated robbery, certain drug offenses involving manufacture, sale, or possession with intent, and certain other enumerated offenses. A felony not on the list does not trigger the statute, and the firearm charge cannot be applied where use of a weapon is already an element of the underlying felony. Whether the predicate offense qualifies is a threshold defense issue.
Can the firearm charge be dismissed or reduced?
It can, depending on the facts. If the underlying felony is not a dangerous felony, if the firearm is already an element of that felony, if the gun was unlawfully seized, or if the State cannot prove the intent to go armed or the connection to the crime, the charge may fail or be reduced. Moving the case from the “employ” tier to the “possess” tier, or challenging a prior conviction used to escalate the minimum, can also substantially reduce exposure. A defense attorney evaluates each of these avenues based on the specific evidence.
Talk to a Nashville Criminal Defense Lawyer
If you are facing criminal charges in Tennessee, the decisions you make early in your case can shape everything that follows. Nashville criminal defense attorney Nathan Cate represents clients charged with felonies and misdemeanors throughout Davidson County and Middle Tennessee. With 53 jury trials taken to verdict and 12 outright Not Guilty acquittals, he brings courtroom experience to every stage of a case — from the first hearing through trial and appeal.
Call (615) 664-8083 to schedule a consultation, or visit the office at 222 2nd Avenue North, Suite 220, Nashville, TN 37201.