Facing federal weapon charges may encompass a number of different charges involving the possession, manufacturing, transportation, or distribution of firearms and other deadly weapons.
Depending on your criminal record and the nature of the charges, possession of a weapon could lead to fines and/or prison sentences ranging from five years to life in prison.
Our lawyers are have zealously represented our clients in federal court for charges related to the possession, manufacturing, transportation, and distribution of firearms.
Below, we will outline the laws, penalties, and defenses of various federal weapons charges in order to help you understand how to fight charges related to firearms.
If you have been charged in relation to any of these federal weapons charges and would like a legal review of your case, call us today.
- What is the definition of a “firearm?”
- What types of firearms are prohibited?
- Who is prohibited from owning a firearm?
- What happens if you use a firearm “in furtherance of another crime?”
- What are some crimes related to “use, possession and transfer” of firearms?
- What are some additional consequences to federal firearm charges?
- Who’s in charge of investigating & reporting crimes federal firearm charges?
- What are some of the legal defenses to federal firearm charges?
What is the definition of a “firearm?”
18 U.S.C. § 921
Federal firearms laws, codified in 18 U.S.C. Chapter 44, make it illegal to possess, manufacture, transport, or distribute firearms and other deadly weapons.
“Firearm” Defined:
18 U.S.C. § 921(a)(3) defines a “firearm” as:
- any weapon which is designed to,
- or may readily be converted to,
- expel a projectile
- by the action of an explosion; or
- the frame or receiver of any such weapon; or
- the muffler or silencer of any such weapon; or
- any destructive device.
Disassembled and Inoperable Firearms Are Still “Firearms”
Even if your firearm is disassembled, dismantled, or altered so that they are inoperable at the time of the offense, it can still be considered a “firearm” for the purpose of 18 U.S.C. § 922 and § 924.[1]
Antique Firearms Are Not Included in The Definition:
18 U.S.C. § 921 does not include antique firearms in its definition.[2]
What is a “prohibited firearm?”
18 U.S.C. § 922(k), (o), & (v) make it unlawful to knowingly possess or manufacture:
- Short barrel shotguns
- Short barrel rifles
- Sawed-off shotguns
- Machine guns
- Silencers; and
- Destructive devices; or
- Any firearm which lacks a serial number or contains an altered serial number
Generally, unless the person in possession of the firearm is registered under the National Firearms Registration and Transfer Record, it is unlawful to possess these items.
Who is a “prohibited person?”
18 U.S.C. § 922(g) makes possession of a firearm by a “prohibited person” illegal. Selling any firearm or ammunition to a “prohibited person” is also illegal under 18 U.S.C. § 922(d)(3).
The 9 “Prohibited Persons”
Under 18 U.S.C. § 922(g), the nine general categories of “prohibited persons” are:
- Felons;
- Fugitives;
- Unlawful users of or addicts to controlled substances;
- Persons who have been adjudicated as mentally “defective” or who have been involuntarily committed to a mental institution;
- Illegal aliens and non-immigrant aliens
- Anyone who was dishonorably discharged from the armed forces
- Anyone who renounced their U.S. citizenship
- Anyone who is the subject of a qualifying domestic protection order; and
- Anyone convicted of a misdemeanor crime of domestic violence.
Felons in Possession
18 U.S.C. § 922(g)(1) defines a “felon” as anyone who has been convicted of a crime punishable by more than one year in prison.
Therefore, if you have previously been convicted of violent crime or a serious drug crime, you will most likely be subject to criminal penalties if you are found to be in the possession of a firearm.
Penalties for possession by a prohibited person include 10 years imprisonment and/or $250,000.
However, sentencing enhancements exist for people who have been convicted of three violent felonies or serious drug offenses.
Extra time for defendants with 3 felony convictions.
18 U.S.C. § 922(e) provides a mandatory minimum sentence of 15 years imprisonment for any defendant who has three previous convictions for a violent felony or a serious drug offense, committed on different occasions form one another
“Violent crimes” include crimes that have, as an element, the use or threatened use of physical force against the person of another.
“Serious drug offenses” include any offense under the Controlled Substances Act, or any drug offense under state law, which the term of imprisonment of 10 years or more is prescribed by law.
“What if I have not been convicted of a felony, but I am under indictment?”
18 U.S.C. § 922(n) also prohibits the possession of an unlawful firearm by anyone under indictment for a crime which is punishable by more than one year.
This means that even before you are convicted of a felony, as long as you are currently under indictment, you are prohibited from possession of an unlawful firearm and can be subject to additional penalties which are not associated with your pending trial.
“Unlawful Users of Controlled Substances”
18 U.S.C. § 922(d)(3) makes it unlawful for users or addicts of controlled substances to possess a firearm.
Demonstrating someone is a “user” can be done in many different ways including drug tests, and arrest records. Most recent cases have held that courts must examine the “pattern and recency” of the defendant’s drug use in order to determine if there is a temporal nexus between the possession of the firearm and the drug use.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives regulations requires that the “use” must have occurred “recently enough to indicate that the individual is actively engaged in such conduct.”[3]
For example, if a defendant is arrested for possession of a firearm and says that the drugs are only for personal use, he or she will be charged under 18 U.S.C. § 922(g)(3).
However, if the defendant says they are a distributor, then 18 U.S.C. § 924(c) may apply. (Discussed in the “Related Crimes” section below.)
Domestic Violence Prohibitions
18 U.S.C. § 922(g)(8) and (g)(9) are domestic violence-related firearm prohibitions.
- 18 U.S.C. § 922(g)(8) – makes it unlawful for any person who is under a qualifying “order of protection” to possess a firearm.
- 18 U.S.C. § 922(g)(9) – makes it unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm.
Violent Crimes and Drug Trafficking
18 U.S.C. § 924(c) makes it unlawful to “use, carry, or possess a gun in furtherance of a crime of violence or drug trafficking.”
“Using, carrying, or possessing a gun in furtherance of a crime…”
“Use” of a firearm requires something more than mere possession; it requires “active employment of the weapon.”[4] The Court in Bailey v. United States, 516 U.S. 137, 149 (1995) defines “active employment of a weapon” to include “brandishing, displaying, battering, striking with, and most obviously, firing or attempting to fire a firearm.” [5]
The Court in Bailey also held that “use” of a firearm includes making “reference” to that firearm “if referring to the firearm is calculated to make the transaction easier.”
For example, a drug dealer who keeps a firearm in his home cannot be said to have “used” the firearm unless he makes reference to the weapon during a drug transaction.
However, § 924 also prohibits possession of a firearm “in furtherance of” drug trafficking. Therefore, using our drug dealer example above, a drug dealer who brandishes, displays, strikes with, fires or even references a firearm during a drug transaction may be charged with using a firearm in furtherance of a drug crime.
Penalties for Violating § 924
Penalties for violating § 924 vary depending on the type of firearm used, how the firearm was used, and whether it is the defendant’s first violation. All sentences under this section must be served consecutively to any other sentence, and offenders are not eligible for probation. Under federal law, the second conviction does not have to be the result of a separate incident.
| Offense | Penalty[6] |
| Using, carrying, or possessing | Not less than 5 years |
| Brandishing | Not less than 7 years |
| Discharging | Not less than 10 years |
| Short barreled rifle or shotgun | Not less than 10 years |
| Machine gun, destructive device or silencer | Not less than 30 years |
| Second or subsequent conviction | Not less than 25 years |
| Second or subsequent conviction for machine gun, destructive device, or silencer | LIFE |
Related Offenses
Altering Serial Numbers on Firearms
18 U.S.C. § 922 (k) and (o) prohibit knowingly possessing firearms with obliterated serial numbers and machine guns manufactured after May 19, 1986.
18 U.S.C. § 924(a)(1)(B) states that the penalty for knowingly possessing a firearm with an altered serial number shall be no more than 5 years or $250,000 or both.
False Statements
18 U.S.C. § 922(a)(6) and (a)(2) makes it unlawful for any person to knowingly make a false statement to a licensed dealer in connection with the acquisition of a firearm
For example, if a buyer lists themselves as the “actual buyer” of a firearm and, in fact, he was purchasing the firearm for someone else, that buyer has committed a felony, regardless of whether the other person can legally own a firearm.
18 U.S.C. § 924(a) states that the penalty for knowingly making a false statement in connection with the acquisition of a firearm shall be no more than 10 years or $250,000 or both.
Selling or Transferring to “Prohibited Person”
18 U.S.C. § 922(d)(3) also makes it unlawful to knowingly sell or otherwise dispose of any firearm or ammunition to any “prohibited person” and allows for punishment of no more than 10 years.
Firearm in School Zone
18 U.S.C. § 922(q)(2)(A) makes it unlawful to knowingly possess or discharge a firearm in a school zone and allows for a punishment of no more than 5 years.
Youth Handgun Safety Act
The Violent Crime Control Act makes it a federal offense for a juvenile under 18 years of age to knowingly possess a handgun or handgun ammunition.
The act also makes it unlawful to sell, deliver, or otherwise transfer a handgun or ammunition to a person you know or have a reasonable cause to believe is s juvenile.
Selling or Transferring to a Juvenile
18 U.S.C. § 922(x)(1)(A)-(B) makes it unlawful to sell, deliver, or otherwise transfer a handgun or ammunition to a person you know or have a reasonable cause to believe is s juvenile.
Selling, delivering, or otherwise transferring a handgun or ammunition to a juvenile is punishable by one-year imprisonment unless the transferor had reason to believe the juvenile would commit a crime of violence with the gun or ammunition.
If the defendant did in fact have a reason to believe the juvenile would commit a crime of violence with the gun, the statute allows for punishment of no more than 10 years.
Possession by a Juvenile
18 U.S.C. § 922(x)(2)(A)-(B) makes it unlawful for a juvenile to knowingly possess a handgun or ammunition.
Additional Consequences
In addition to criminal charges, defendants charged with using, possessing, selling, or transferring a firearm illegally may be subject to forfeiture of their money, assets, and license to sell firearms.
Forfeiture of Your Firearms
18 U.S.C. § 924(d) authorizes the seizure and forfeiture of firearms, ammunition and explosives involved in criminal offenses.
Losing Your License to Sell Firearms
18 U.S.C. § 922(b) prohibits a firearm licensee from selling any gun or ammunition to anyone under the age of 18 and may not sell a handgun or handgun ammunition to a person under the age of 21.
18 U.S.C. § 922(d)(3) also makes it unlawful to knowingly sell or transfer any firearm or ammunition to a “prohibited person.”
Firearms licensee’s who do knowingly sell guns or ammunition to juveniles or “prohibited persons” faces up to 5 years imprisonment and the possibility of losing their license, or 10 years imprisonment if the defendant had a reason to believe the juvenile would commit a crime of violence with the gun.
Investigation and Reporting
The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) is responsible for the investigation and prevention of federal offenses involving the unlawful use, manufacture, and possession of firearms and explosives in interstate commerce.
The ATF also regulates the sale, possession, and transportation of firearms, ammunition, and explosives, in interstate commerce.
Many of the ATF’s activities are carried out in conjunction with state and local law enforcement.
Information for every firearm that is taken into police custody should be sent to the ATF.
Establishing a Defense to Federal Firearm Charges
If you are a “prohibited person” and you have been charged with a firearms offense, contact us for a legal consultation.
Below, we will discuss some of the common defenses to federal firearms charges.
If you are a “prohibited person,” the government must prove three elements “beyond a reasonable doubt” in order to establish a violation of § 922:
- That the defendant previously had been convicted of a felony;
- That the defendant knowingly used, manufactured, possessed, sold, or transported a firearm;
- That the firearm traveled in or affected “interstate commerce.”
The firearm must have traveled in “interstate commerce.”
In order to establish federal jurisdiction in § 922 prohibited persons cases, the prosecutors must show that gun involved traveled in “interstate commerce.”
For example, if a firearm is manufactured in Pennsylvania and is recovered in New York, the interstate commerce element of the crime is satisfied.
On the other hand, if a firearm is manufactured in New York and recovered in New York, the prosecutor with need to prove that the firearm crossed a state line at some point in its history.
A prosecutor could prove that the firearm crossed a state line at some point by proving the firearm was used in a crime in a separate state.
Note: §924 does not require the gun to have traveled in interstate commerce because the underlying violent crime or drug offense provides the jurisdiction to prosecute in federal court.
It is also against federal law to interfere with interstate commerce.
The Hobbs Act
Under the Hobbs Act, 18, U.S.C. §1951, if a defendant robs a business with a firearm, and that business is engaged in interstate commerce, that interstate commerce element may also subject the defendant to federal criminal liability.
Lack of intent
In order to be found guilty of violating the prohibitions described, prosecutors must prove that you knowingly engaged in the unlawful use, manufacture, possession, transportation or sale of firearms or explosives.
Proving someone had specific knowledge, prior to a given action, “beyond a reasonable doubt” is undoubtedly a heavy burden for the government to bear. This elemental burden may be a valuable tool to establishing your defense with your attorney.
You don’t need to know that your conduct is unlawful. If prosecutors can prove that you intended to unlawfully use, posses, sell, or otherwise transfer a firearm—regardless of your knowledge of the law—you may be found liable.
Person does not qualify as a “prohibited person.”
In order to establish federal jurisdiction for violation of § 922 prohibited persons cases, the prosecutors must show that you knowingly sold or transferred a firearm to a person who is a “prohibited person.”
If the person you sold the firearm to was not in fact a prohibited person, or you did not know that the individual was a “prohibited person,” your attorney may be able to establish a defense to this charge.
There was no false statement. If there was a false statement made, it was unintentional.
Much like the previous two defenses, this defense highlights the intent element required by the statute to prove a charge of knowingly making a false statement to a licensed dealer in connection with the acquisition of a firearm under § 922(a)(6) and (a)(2). If there was no false statement, or the false statement was unintentional, this may serve as a viable defense.
Speak to a Federal Firearms Attorney Now
Our lawyers have successfully represented clients in federal court in relation to federal firearms charges. Speak to a federal firearms attorney now.
If you or someone you love has been charged with any of the federal firearm offenses discussed above, you must take action immediately. Contact us for a legal consultation.
