Federal Firearms Charges

Federal firearms crimes fall into five main categories:

• People prohibited from possessing firearms
• Types of firearms prohibited by federal law
• Firearms connected to crimes of violence or drug crimes
• Dishonesty during the purchase of a firearm
• Federal Firearms Licensee (FFL) offenses by licensed dealers

People Prohibited from Possessing Firearms or Ammunition

Federal law makes it a crime for certain types of people to possess firearms or ammunition. “Possession” includes holding the firearm for someone else, even temporarily. The person does not have to be the owner of the gun — simply holding, carrying, storing, or borrowing it can be enough.Federal law prohibits a person from possessing a firearm who:

• Has a prior felony conviction
• Is a fugitive from justice
• Is a user or addict of controlled substances
• Is illegally in the U.S.
• Was dishonorably discharged from the military
• Is under a domestic violence restraining order
• Is presently under federal indictment
• Has ever been committed involuntarily to a mental institution

The sentence for any of these offenses is up to 10 years in prison. Federal law also prohibits people from selling or transferring a firearm or ammunition to someone they knew or had reason to believe falls into one of these categories, and the penalties are the same.

The firearms offense that federal prosecutors most commonly charge is being a felon in possession. (18 U.S.C. § 922(g)) A “felon” is defined as a person who has a previous conviction anywhere in the country for a crime in which the sentence could have been one year or more in prison. It does not matter if the judge actually imposed a sentence of less than one year. If the prior sentence could have been a year or more, then it means the person can no longer possess a gun under federal law. The prior conviction can be for any crime and is not limited just to other firearms crimes, drug offenses, or any other particular crime.

For example, if someone has a prior drug conviction where the penalty could have been up to 2 years in prison, but the judge ordered a sentence of only 8 months, then that still counts as a prior felony conviction because the possible sentence was more than a year in prison. That person is prohibited from carrying a firearm under federal law. It also does not matter if the state where the prior conviction occurred considers the previous conviction a misdemeanor. If the possible sentence could have been one year or more, then it counts as a “felony” for purposes of being a felon in possession of a firearm.

The fact that state law might allow the person to possess a firearm does not matter, and the federal government can still charge the person with a federal crime. The only exceptions are if the state has restored the person’s rights to possess firearms after a felony conviction or the prior felony conviction was expunged. An experienced federal defense attorney will examine whether one of these exceptions applies and present evidence that could result in the dismissal of charges.

Firearms Connected to Crimes of Violence or Drug Crimes

The federal penalties are severe if a person had a gun during another crime. For example, if a person used or carried a firearm during and in relation to a crime of violence or drug trafficking crime, then the mandatory minimum sentence is 5 years. (18 U.S.C. § 924(c)) If the person “brandished” the firearm during the crime of violence or drug trafficking, then the mandatory minimum increases to 7 years. If shots were fired, then the mandatory minimum increases to 10 years in prison. A prior conviction under this statute triggers a mandatory minimum 25-year sentence.

The same penalties apply if the person possessed a firearm in furtherance of a crime of violence or drug trafficking crime. The difference between “possessing in furtherance of” and “using or carrying during and in relation to” a crime is subtle but important.

• Possessing a firearm in furtherance of a drug trafficking crime or crime of violence: If the person is charged with “possessing a firearm in furtherance of a drug trafficking crime or crime of violence” under 18 U.S.C. § 924(c), then the government must prove that the person possessed the firearm “in furtherance” of the crime. It is not enough to show that the person owned or possessed a gun at the time of the offense. The possession of the weapon must have been “in furtherance” of the crime, meaning that it advanced or assisted the crime in some way.
• Using or carrying a firearm during and in relation to a drug trafficking crime or crime of violence: Using or carrying a gun during the crime is more severe than simply possessing a gun (like back in the car or at home), and so for this prong of 924(c), the government does not have to prove that the using or carrying of the firearm advanced the offense. Rather, the government need only prove that the person used or carried the firearm at some point during the criminal conduct (“during”) and that the person had the firearm for some reason related to the crime (“in relation to”).

In many cases, the government cannot prove that the person possessed a firearm “in furtherance of” the offense or that the person used or carried the firearm “during and in relation to” the offense. For example, a firearm left inside a vehicle during a drug purchase might not count. A firearm left inside a house with drugs, baggies, a digital scale, and a safe of cash is debatable, depending on where the firearm was specifically and other facts of the case. Threatening to use a firearm for some reason not directly related to the offense also might not count. An experienced federal defense attorney can exploit flaws in the government’s case by showing that the government cannot prove the firearm was used “in furtherance of” or “during and in relation to” the crime.

A qualified federal defense lawyer can also attack whether the offense qualifies as a “crime of violence” or a “drug trafficking crime,” in which case the 924(c) charge might not even apply. If the case goes to trial, an experienced federal defense lawyer can expose weaknesses in the prosecution, including the unreliability of witnesses and government cooperators, weak and circumstantial evidence surrounding ownership and possession of the gun, and illegal or improper searches and traffic stops. An acquittal or dismissal on a 924(c) charge can have a major effect on a person’s life.