Federal Gun Charges: Exposure, Enhancements, and Defenses.

Federal Firearms Offenses: Charges, Penalties, and Defenses

The punishment that federal prosecutors can seek for federal firearm offenses varies from case to case. However, in many cases, a conviction can result in federal prison terms measured in decades. As a result, anyone facing charges under the Gun Control Act needs to be vigilant. When the U.S. Department of Justice puts you in the crosshairs, the first priority must be to determine your maximum possible federal exposure. Once you know what you are facing, the next step is to begin working on building an effective defense strategy. Our federal firearm defense lawyers will rely on their extensive experience to look for affirmative defenses in five areas that can either protect you from prosecution or mitigate your potential sentencing exposure: - Status, If the government cannot prove that you fit into one of the status groups listed in Section 922(g) of the federal criminal code, then federal firearm prosecution is out of the question.

• Possession, The government cannot establish guilt under Section 922(g) if it cannot show that you actually possessed (or attempted to possess) a firearm.
• Intent, Depending on the specific federal firearm offense you have been charged with, the government will also have to prove that you had the requisite knowledge or intent.
• Lawful Search and Seizure, The government must also prove that it has lawfully obtained the evidence it is relying on to support its case.
• Sentencing Exposure, Even if a conviction is inevitable, it is still possible to challenge the government’s calculations as to your statutory and guidelines-based sentencing exposure.

  Which Federal Firearms Offenses Are Most Often Charged?

  Spodek Law Group’s lawyers are most often contacted by individuals targeted in investigations involving the following types of federal offenses, although, again, this is far from an exhaustive list.

  1. Unlawful Material Lies to Licensed Firearm Dealers (18 U.S.C. Section 922(a)(6))

  The first is investigations involving alleged violations of 18 U.S.C. Section 922(a)(6). This federal criminal statute punishes those who make material misrepresentations to individuals or entities licensed to engage in the business of dealing in firearms. To sell a firearm, a dealer must require a buyer to complete U.S. Department of Justice Form 4473. This form requires answers to several questions, including citizenship and criminal record. Material lies on Form 4473 are subject to federal prosecution under Section 924(a)(2), providing for a maximum ten-year prison term and up to three years of supervised release.

  2. Straw Purchases

  A particular type of material lie that has recently come to the forefront is the one that constitutes a “straw purchase.” This occurs when someone eligible to purchase a firearm falsely claims on Form 4473 to be the actual purchaser. If the firearm is actually destined for someone else, this false statement constitutes a material misrepresentation that supports federal prosecution under Section 922(a)(6), even in cases where the actual buyer qualifies to possess a firearm.

  3. Straw Purchases (18 U.S.C. Section 932)

  The federal straw-purchase liability discussed above has been further broadened by 18 U.S.C. Section 932. This statute was created by Congress in 2022 to establish a specific criminal offense for straw purchases. Under Section 932, a straw purchase occurs when an individual, acting with the intent to facilitate or encourage the acquisition of a firearm, knowingly buys a firearm and delivers it to another. Section 932 ordinarily carries up to 15 years of federal imprisonment, and in certain cases, the maximum rises to 25 years.

  4. Trafficking in Firearms (18 U.S.C. Section 933) Along with Section 932, Congress

  created a specific federal firearms-trafficking offense under 18 U.S.C. Section 933 in 2022. This statute punishes anyone who imports, distributes, or receives any firearm, ammunition, or other device in knowingly-unlawful circumstances, and who does so with the intent to facilitate or encourage further illegal activity involving firearms. Section 933 applies across state lines and, in many cases, prohibits the use of “any means or device” to avoid penalties, recordkeeping requirements, and other restrictions. This statute ordinarily carries up to 15 years’ imprisonment.

  5. Federal Firearms Mens Rea Requirements

  The specific mens rea requirements for these federal firearm offenses vary depending on the applicable statutory provision. For instance, Section 922(a)(6) requires intent to deceive. Section 932 involves “knowing” conduct in furtherance of a straw purchase. Section 933 requires that the defendant know, or have reasonable cause to believe, that the recipient’s use, carrying, or possession of the firearm would constitute a felony. To defend you effectively, we rely on these statutory provisions, judicial precedent, and legislative history to build your defense.

  What Must Prosecutors Prove in a Prohibited-Person Possession Case?

  1. Prohibited Status First,

  prosecutors must prove that you fit into one of the nine prohibited possessor categories identified in 18 U.S.C. Section 922(g). For example, Section 922(g)(1) requires proof that you were “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Section 922(g)(3) requires proof that you were an “unlawful user of or addicted to any controlled substance.” Section 922(g)(9) requires proof of a prior conviction for a “misdemeanor crime of domestic violence.”

  2. Knowledge As a result of the Supreme Court’s

  holding in Rehaif v. United States, federal prosecutors must also prove that you “knowingly” possessed a firearm while falling into one of these prohibited possessor categories. Importantly, Rehaif clarified that “knowingly” only requires that you knew you fell into a prohibited status. It does not require proof that you knew that possessing a firearm was illegal under federal law.

  3. Possession Next,

  the government must prove that you possessed a firearm. This is not limited to cases where you owned the firearm, and it is not limited to cases where you physically handled the firearm. To prove possession, the government must show:

• Actual Possession: If you had the firearm on your person at the time of your arrest, the government can demonstrate actual possession by simply showing your physical contact with the weapon.
• Constructive Possession: If the government cannot prove actual possession, it will seek to prove constructive possession. Under federal law, constructive possession is established if you had “both the power and intent to exercise domination and control over the firearm.”
• Joint Possession: In cases involving multiple people occupying the same location (joint possession), the government will have to prove that you had constructive possession. In these cases, evidence may include the firearm’s location, your knowledge and access to the firearm, and anything else that suggests you possessed the weapon.

  4. Interstate Travel Finally,

  under the federal commerce power, the government must prove that the firearm in question has crossed state lines (i.e., that it has traveled in interstate or foreign commerce). However, that does not require proof that the government knows where the weapon was manufactured. Instead, it can show that the weapon crossed state lines at some point in its lifetime, and a previous law enforcement officer’s affidavit from a state agency will be enough to establish the commerce element.

  5. Pardons, Expungements, Set-Asides, and Other Rights

  When facing a federal firearm conviction under Section 922(g) based on your prior criminal history, your criminal record may not be as damaging as it seems. Federal law includes various protections for those who have been granted pardons, expungements, set-asides, or other forms of restoration of civil rights. Understanding how to raise these defenses is critical for avoiding criminal prosecution.

  When Does Section 924(c) Require Consecutive Prison Time?

  Unlike the minimum sentences under the Gun Control Act that run concurrently with other sentences (meaning both prison sentences are served at the same time), 18 U.S.C. Section 924(c) requires minimum sentences that run consecutively (meaning the 924(c) sentence begins only after the other sentence has been served). Section 924(c) imposes a minimum sentence for individuals who use or carry a firearm during or in furtherance of:

• Specified crimes of violence
• Drug trafficking

A minimum of five years is required for:

• Possessing a firearm in connection with a qualifying federal offense

A minimum of seven years is required for:

• Brandishing a firearm in connection with a qualifying federal offense

A minimum of ten years is required for:

• Discharging a firearm in connection with a qualifying federal offense

If you are charged with an “additional offense” involving a firearm in connection with a qualifying federal offense, the minimum sentence could be as long as 25 years. For example, if you have previously served time for possession of a firearm in connection with drug trafficking, then a subsequent violation under Section 924(c) triggers a mandatory minimum of 25 years of federal imprisonment. However, this enhanced penalty only applies after a final conviction. So, even if you are charged with a new drug trafficking offense while already under indictment for a similar charge, the enhanced penalty does not apply yet.

4. Proof of Furtherance In order to trigger Section 924(c)’s

mandatory sentencing requirements, the federal prosecutor must prove that you used or carried a firearm in furtherance of a qualifying offense. The mere presence of a firearm near illegal drugs, for instance, is not sufficient to prove that you used a firearm to commit a drug trafficking crime.

5. Machineguns, Silencers, and Destructive Devices

A machinegun is any weapon capable of fully automatic fire. This is separate from semi-automatic firearms. Silencers and destructive devices can be similarly defined. In federal criminal court, use or possession of machineguns, silencers, or destructive devices can lead to additional mandatory penalties. For example, under 18 U.S.C. Section 924(c), a machinegun, silencer, or destructive device used during the commission of a drug trafficking offense carries a 30-year mandatory minimum sentence.

When Does ACCA Impose a Fifteen-Year Mandatory Minimum?

The Armed Career Criminal Act (“ACCA”) requires a fifteen-year mandatory minimum for individuals who: (i) are prosecuted for a Section 922(g) violation; and (ii) have three or more “predicates.”

1. Separate Occasions and Erlinger v. United States

The first requirement for an enhanced penalty under ACCA is that the three prior convictions happened on separate occasions. In Erlinger v. United States, the Supreme Court held that, if the government cannot prove a defendant has three ACCA predicates on separate occasions beyond reasonable doubt, then the mandatory minimum sentence cannot apply. This means that when the question of separate occasions is disputed, the jury must resolve the issue.

2. What Does “Separate Occasions” Mean?

The U.S. Supreme Court addressed ACCA’s “separate occasions” requirement again in Wooden v. United States. In Wooden, the Court explained that “separate occasions” are determined by taking a multi-factor inquiry looking at “the timing, location, and nature of the circumstances” surrounding the relevant criminal acts in question. If you are facing prosecution under ACCA, demonstrating that your priors occurred on the same occasion can be a viable defense against sentencing enhancement.

3. Borden v. United States In Borden v. United States, the Supreme Court

held that offenses characterized as “reckless” are not “violent felonies” under ACCA’s elements clause. This is another area where experienced federal firearm counsel can work to reduce your potential prison exposure.

If you have a prior conviction for an offense that requires a culpable mental state less than intentional or knowing, then it is not a violent felony for ACCA purposes, unless it also meets the specific definition of a serious drug offense.

4. Categorical Approach and ACCA Predicates U.S. District Court

judges use what is known as the categorical approach to examine a defendant’s prior offenses and determine if they are, in fact, ACCA predicates. In other words, they compare the statute under which a defendant was convicted with the definition of a violent felony set forth in Section 924(e)(2)(B) of the federal criminal code.

As a general rule, your prior offense’s label is irrelevant. What matters is whether the specific prior offense you were convicted of meets the statutory definition of a violent felony or a serious drug offense.

How is the Real Federal Firearms Sentence Calculated?

While statutory mandatory minimums and mandatory maximums set the overall parameters of a potential sentence, the federal criminal sentencing guidelines are used to determine an advisory sentence for federal crimes. In cases involving felon-in-possession charges under Section 922(g), U.S.S.G. §2K2.1 is the relevant provision. As the guidelines set forth in §2K2.1 explain:

1. Possession of a Firearm as a Prohibited Person

The base offense level for possession of a firearm by a prohibited person is 14 under §2K2.1(a)(6) if the defendant was a prohibited person at the time of the offense; §2K2.1(a)(7) otherwise sets a base offense level of 12.

Once the base offense level is established, additional adjustments can apply based on whether the defendant possessed multiple firearms, if the firearm in question is stolen, if the firearm has an obliterated serial number, or if the firearm was acquired to facilitate the commission of another felony offense. These adjustments include:

• Possessing more than one firearm: Offense level increase of 2 levels for possession of three to seven firearms; and, for possession of more than two firearms, offense level increase of 4 levels.
• Possession of a stolen firearm or possessing a firearm with an obliterated serial number: Offense level increase of 2 levels.
• Possession of a firearm acquired to facilitate another felony offense: Offense level increase of 2 levels.

  2. Other Firearm Trafficking Offenses Section 2K2.1

  also sets forth a list of additional offense-level enhancements in cases involving discharges of a firearm, import and trafficking of firearms, and other conduct as a means to further engage in criminal activity involving firearms.

  3. Acceptance of Responsibility Under U.S.S.G.

  §3E1.1, defendants may be entitled to a reduction of up to 3 levels of the advisory offense level for acceptance of responsibility. Demonstrating an acceptance of responsibility typically includes pleading guilty or accepting responsibility at trial.

  4. Criminal History and Judicial Discretion

  A defendant’s federal offense level is then compared with their calculated federal criminal history level on the federal sentencing grid. Along with the offense level and criminal history level, federal judges also consider several other factors during sentencing under 18 U.S.C. §3553(a), and these factors can help lower a defendant’s advisory sentence to their full potential.

  What Defenses Can Defeat a Federal Firearms Charge?

  There are many different ways to challenge a federal firearms charge and the government’s reliance on evidence obtained during a warrantless search. In cases involving these offenses, some common defenses include:

The most common way to suppress a firearm in a federal case is to demonstrate that the search was conducted without a warrant or other lawful authority. While warrants are not strictly required in every search, prosecutors must be able to rely on one of the following warrantless search exceptions in order to use the evidence at trial:

• Consent: If you voluntarily consented to the search, then a warrant was not required.
• Automobile: If the federal agent had probable cause to search your vehicle or if there were “exigent circumstances” that warranted an immediate warrantless search, then a warrant was not required.
• Plain-View: If the firearm was in plain view at the time of the warrantless search, then a warrantless search is permissible under the plain-view doctrine.
• Other Lawful Authority: Even if you gave consent, you may be able to seek suppression of a firearm if a federal agent searched the property under other circumstances that violated the Fourth Amendment.

Even if a warrantless search was conducted improperly, the only way to exclude the firearm will be if the firearm was recovered during a search and seizure that violated the defendant’s own Fourth Amendment rights. As a general rule, you can only suppress evidence that was obtained during a search to which you had a protected privacy interest.

Even if you are charged with a criminal offense that is covered by an amended complaint and indictment, a warrantless search and seizure may not automatically trigger the exclusionary rule in federal court. For example, in many cases, an exception called the good-faith exception has been created to protect the use of evidence obtained under an illegally-issued warrant. Again, in many cases, an issue with a search or seizure may not lead to the suppression of a firearm unless there is evidence that a law enforcement officer knowingly or intentionally misled a federal magistrate to obtain a warrant.

A warrantless search may lead to a criminal conviction if you were on the lookout, you surrendered your firearm, or you fled from a police vehicle. An unlawful search can also be challenged on the grounds that the weapon involved is not a “firearm” under federal law. If you can convince the judge that the item was not a firearm, then you may be able to exclude the evidence.

Can you claim the necessity defense? In cases where a firearm is recovered from a crime scene, it may not be clear why you had a weapon on your person at that time. The necessity defense is available if you had no reasonable lawful alternative in your situation and you relied on the weapon due to some other circumstances that made it necessary for you to have the firearm in your possession at the time of the search.

Do you have proof that the item is not a “firearm”? Along with proving that you were not in possession of the firearm or that the search was illegal, prosecutors must also prove that the item they found is actually a firearm as defined in the federal criminal statute. For instance, if you are charged with possession of a machinegun under the federal criminal code, prosecutors must prove that you had a machinegun. If you can convince the judge that you had a semi-automatic firearm, then the machinegun charge should be thrown out.

Should you challenge your federal offense on the Second Amendment grounds? The U.S. Supreme Court held in District of Columbia v. Heller and other cases that Americans have a right to possess firearms for lawful purposes such as self-defense. However, these protections do not apply broadly to all criminal offenses, and the courts take a conservative approach when considering Second Amendment challenges to criminal offenses. With that said, challenging your federal firearms charge on constitutional grounds could still be a viable defense strategy.

8. Possession Defenses Along

with proving that the search was illegal or that the weapon is not a firearm, you can also try to challenge the government’s proof that you possessed the firearm. To avoid a conviction for felon-in-possession, the federal prosecutor must prove that you possess the weapon. This means that the jury must believe that you either possessed the firearm on your person or that you had constructive possession of the firearm in your home or vehicle. If there is no physical or digital evidence linking the firearm to you, such as your fingerprints or DNA, then the federal prosecutor will have to convince the jury that you had the firearm on your person. This evidence will be important if the prosecutors try to claim that you have any form of possession or ownership of the firearm.

When Should I Hire Counsel and What Should I Avoid Doing?

1. Why is It Important to Hire Counsel Immediately?

Spodek Law Group does not have a specific record of outcome for federal crimes. While we provide free case evaluations, we cannot guarantee a particular outcome. As a result, you can make an informed decision when choosing counsel, and you can expect a specific, legal analysis of your case that is based on the actual facts involved. Our attorneys can help you:

• Deal With Interrogation and Detention: Federal law enforcement officers will want to ask you questions about your alleged federal crime. If you are not yet facing charges, you can still negotiate with federal law enforcement officers to avoid being detained.
• Preserve and Use Evidence: In many cases, there is evidence that could help your case. But if you are unaware of the evidence, there is nothing you can do to protect it from being destroyed. Our attorneys can help preserve the evidence if possible, and our team can review and analyze any digital evidence.
• Address Pending or Future Charges: If you know that federal law enforcement is investigating you, then you have a unique opportunity to address the potential criminal charges you may face. Depending on the circumstances involved, you may be able to prevent criminal charges from being filed.
• Assist with Charging Decisions: Even if you are already facing federal charges, our attorneys can still assist with your case. When facing multiple federal criminal charges, this can also include working with federal prosecutors to narrow down the charges that they bring against you.

  2. Can I Directly Communicate with My Lawyer?

  Yes, you can communicate directly with your lawyer. Along with this, you will be able to speak with other attorneys at our firm. We protect our clients’ attorney-client communications, and you can speak with our attorneys confidentially. However, a communication seeking legal advice about conduct that you have already committed is generally privileged, but a communication seeking legal advice about a criminal offense that you are currently committing or intend to commit is not.

When talking to your federal firearms defense lawyer, you will need to be as honest as possible. You will not want to lie to your attorney, and you will not want to conceal potentially damaging evidence. This way, your attorney can be able to make an informed decision regarding the best way to defend you.

Along with this, remember that attorney-client communications are limited to protected communications. You will not want to discuss the facts and details of your criminal offense on social media or on a nonprivileged phone call with someone who does not have a protected relationship. Even if the information you provide to your lawyer will be used to protect you at trial, these discussions can also be subpoenaed and will be used against you.

3. Do I Need to Wait for the Police to Inform Me of My Miranda Rights?

No, you do not need to wait for the police to inform you of your Miranda rights. While Miranda rights cover most custodial interrogations in federal criminal cases, the Miranda Rule does not cover all police encounters. This means that if you want to stay silent during a custodial interrogation, you can simply stay silent until the police read you your rights. However, you can also invoke your right to silence and your right to have an attorney present. If you do this, then the federal prosecutor will have to prove your knowledge and your intent.

4. Can Spodek Law Group Lawyers Represent Me in Federal Court?

Yes, our lawyers can represent you in federal court, because all of our attorneys were admitted to practice in federal court under their respective jurisdiction’s rules of procedure. This is not always the case. Many defense lawyers are licensed to appear in state courts, but they lack the credentials to represent clients in federal criminal cases. Our attorneys know the federal criminal laws and the laws that apply in federal criminal cases, and this allows us to provide superior representation.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.