Federal Firearms Offenses: Charges, Penalties, and Defenses

Federal firearms charges carry mandatory minimum sentences that are served consecutively to everything else. That consecutive character is the feature that changes every sentencing calculation in which a firearms count appears.

The federal firearms statutes address a range of conduct from the possession of a firearm by a prohibited person to the use of a firearm in connection with a violent crime or drug trafficking offense. Each provision carries its own penalties, its own elements, and its own defense considerations. The overlap between firearms charges and the underlying offenses with which they are frequently paired means that a defendant facing a drug distribution charge with a firearms enhancement faces a sentencing calculation that begins where the drug sentence ends.

18 U.S.C. 922(g): Felon in Possession

The felon in possession statute prohibits any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from shipping, transporting, possessing, or receiving any firearm or ammunition in or affecting commerce. The statute’s prohibition extends to persons under indictment, persons adjudicated as mental defectives or committed to a mental institution, illegal aliens, persons subject to certain domestic violence restraining orders, and persons convicted of misdemeanor crimes of domestic violence.

The statutory maximum for a Section 922(g) violation is ten years. For defendants with three or more prior convictions for violent felonies or serious drug offenses, the Armed Career Criminal Act at 18 U.S.C. 924(e) imposes a mandatory minimum of fifteen years. The Armed Career Criminal designation has been the subject of extensive litigation concerning which prior convictions qualify as violent felonies, with the Supreme Court striking down the residual clause of the violent felony definition in Johnson v. United States in 2015, eliminating the most ambiguous category of qualifying priors.

18 U.S.C. 924(c): Using or Carrying a Firearm

Section 924(c) imposes mandatory minimum consecutive sentences on any person who uses or carries a firearm during and in relation to any crime of violence or drug trafficking crime, or who possesses a firearm in furtherance of such a crime. The mandatory minimums, five years for possession, seven years for brandishing, and ten years for discharge, are imposed consecutively to the sentence for the underlying offense and to each other where multiple counts are charged.

The definition of crime of violence under Section 924(c) has been narrowed by the Supreme Court’s decisions in Johnson and Davis v. United States, which struck down the residual clause of the crime of violence definition as unconstitutionally vague. The narrowing has created opportunities to challenge 924(c) convictions based on predicate offenses that no longer qualify as crimes of violence after the residual clause’s elimination. Defendants serving 924(c) sentences based on predicates that have since been invalidated may be eligible for relief under 28 U.S.C. 2255.

Defense Considerations

Federal firearms defenses address the specific elements of the charged provision. In felon in possession cases, the defenses include: the defendant was not aware the item was a firearm; the firearm was not in interstate or foreign commerce; the defendant’s prior conviction does not qualify as a disqualifying offense; or the defendant’s civil rights were restored following the prior conviction, eliminating the disability.

The constructive possession doctrine is a frequent source of defense argument in firearms cases. The government may charge possession based on the defendant’s access to and control over a firearm, even without physical possession. A firearm found in a shared residence, a shared vehicle, or a location accessible to multiple individuals supports a constructive possession theory, but the government must establish that the defendant knew of the firearm and had the intent and ability to exercise dominion and control over it. Where multiple individuals had access to the location and the government’s evidence of the specific defendant’s knowledge is circumstantial, the constructive possession argument is more contestable.

The 924(c) count transforms any drug or violent crime case into a case with a mandatory additional sentence that the judge has no power to reduce, regardless of the overall sentencing picture. Counsel who identifies a 924(c) exposure early in the representation is counsel who can assess whether the predicate offense qualifies, whether the nexus between the firearm and the underlying crime can be challenged, and what the cooperation calculation looks like with and without the firearms count.

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The Second Amendment Landscape

New York State Rifle and Pistol Association v. Bruen, decided by the Supreme Court in 2022, established a new historical tradition framework for evaluating Second Amendment challenges to firearms regulations. The decision has generated substantial litigation in the lower courts about the constitutionality of various Section 922 prohibitions, with some courts striking down the felon-in-possession prohibition as applied to defendants whose prior convictions were nonviolent, and other courts sustaining it.

The constitutional landscape for federal firearms charges is in transition, and the specific prohibitions applicable to any given defendant may be subject to challenges that were unavailable before Bruen. Counsel who is aware of the current state of Second Amendment litigation in the relevant circuit is counsel who can assess whether a constitutional challenge is viable and whether it is worth pursuing given the defendant’s overall situation.