Firearm Rights After a Federal Drug Conviction.

Can a federal drug conviction still bar firearm possession after the sentence ends?

Yes. 18 U.S.C. § 922(g)(1) explicitly prohibits firearm possession for any individual convicted “of a crime punishable by imprisonment for a term exceeding one year.” This prohibition applies even if the individual’s sentence for the prior conviction has been completed, and it applies even if the disqualifying offense did not involve drugs, firearms, or violence.

The disqualifying prior offense need not have been prosecuted at the federal level and does not need to be a “federal crime.” The prior offense need not involve firearms, violence, or drugs, but it must be a crime punishable by imprisonment for a term exceeding one year, subject to 18 U.S.C. § 921(a)(20). As a result, the disqualifying offense could be nonviolent and could arise under state law, but it must be a crime punishable by imprisonment for a term exceeding one year, subject to 18 U.S.C. § 921(a)(20).

Crucially, the federal disability can apply even when the imposed sentence was less than one year, for example, a sentence of probation or a state-labeled misdemeanor conviction. 18 U.S.C. § 922(g)(1) explicitly states that it disqualifies individuals convicted “of a crime punishable by imprisonment for a term exceeding one year,” and federal courts have held that this means the offense’s maximum possible punishment, not the actual sentence that was imposed.

As a result, federal firearm restrictions apply regardless of the felony or misdemeanor label, except for a state misdemeanor punishable by two years or less. When determining whether a prior conviction disqualifies an individual from possessing firearms under federal law, the relevant criterion is the length of the punishment that could have been imposed.

While federal law generally excludes misdemeanors from being disqualifying offenses, the broad definition of a disqualifying “crime” makes it possible for a state misdemeanor conviction to disqualify an individual from possessing firearms. As with many other areas of federal firearms law, this is a point on which we strongly recommend that affected individuals speak with an experienced attorney.

What federal firearm conduct creates charges beyond the drug conviction itself?

Federal firearm possession encompasses holding or carrying a firearm, but it also includes storing it, borrowing it, or merely temporarily controlling someone else’s gun. Even if an individual did not technically possess the gun in the traditional sense, these scenarios can constitute constructive possession when the person has the power and intent to control the firearm.

In addition to unlawful possession, certain transfers to prohibited persons can lead to criminal prosecution, and separate federal licensing or interstate-commerce offenses may apply to some firearms dealing transactions.

While federal law bars many drug users from possessing firearms, federal law also imposes separate restrictions on individuals that are “unlawfully using” or that are “addicted to” controlled substances. These are two different criteria that are each assessed under federal law as follows:

Restrictions on Persons Unlawfully Using Controlled Substances

Restrictions on Persons Addicted to Controlled Substances

Beyond these general prohibitions, a firearm connection to a drug trafficking offense can create a separate federal charge under 18 U.S.C. § 924(c). Section 924(c) mandates that any person who, during and in relation to any crime of violence or drug trafficking crime, “uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” is subject to criminal charges.

In other words, using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, drug trafficking can trigger a charge under Section 924(c) that is independent of the underlying drug trafficking charge. Thus, if a person possesses a firearm while trafficking, they can be held accountable both for the possession and for the drug offense.

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Which legal relief can end a federal firearm disability after conviction?

Generally, federal relief depends on whether the following have been sought or obtained: expungement, setting aside, or pardon of an individual’s criminal records, or restoration of the individual’s rights.

Under federal law, 18 U.S.C. § 921(a)(20) provides that, in determining an individual’s firearm disability under 18 U.S.C. § 922(g) or § 922(p), it will not count as a prior conviction any conviction that:

“Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

As long as the restoration of rights is deemed “qualifying,” it may serve as federal relief. For example, if the right to carry or own a firearm is granted, it could qualify. A pardon, expungement, set-aside, or restoration of civil rights generally removes the conviction from consideration unless it expressly provides that the person may not ship, transport, possess, or receive firearms. Generally, restoration of rights that does not expressly reserve the firearm disability will suffice to restore an individual’s firearm rights. However, it cannot be presumed that restoration of rights also restores firearm rights.

State court expungements can also be an issue. For example, if a state court has expunged an individual’s conviction records, the individual may believe that this relief also ends their firearm prohibition. While a state court expungement will likely remove the state firearms restriction, it will not end the federal firearms restriction unless the individual can prove that the state expungement qualifies as federal relief under U.S.C. § 921(a)(20).

As a result, even if an individual’s rights were deferred or not granted under state law, the individual might still need to provide evidence of relief under federal law. The same is true of deferred adjudication in criminal trials involving firearm rights. While deferred adjudication may have the effect of eliminating the state’s ability to prosecute the individual criminally, it may not eliminate the individual’s federal firearm disability.

Whether a state-court disposition is a conviction and whether it may be expunged are determined under the law of the jurisdiction in which the proceedings were held. For example, whether a fine or probation affects conviction or expungement status depends on the law of the jurisdiction in which the case was resolved.

Given these issues, individuals should not assume that their rights have been restored. To ensure that lawful possession resumes, individuals must both assume and confirm their state and federal restoration status.

How do federal restoration requests work when no automatic petition exists?

While states may provide automatic or simple petition forms for the restoration of firearm rights, there is no ordinary federal-court petition that will automatically restore an individual’s firearm rights. As a result, individuals who are eligible for federal restoration must seek federal relief through other means.

The ATF’s Role in Firearm Restoration

Historically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) administered relief requests under 18 U.S.C. § 925(c). However, congressional funding restrictions imposed on the ATF halted all routine processing of relief requests under this provision. The ATF still accepts and processes some relief applications, but this is no longer a reliable method for individuals seeking to restore their firearm rights after a federal drug conviction.

Presidential Pardon Application

Another option is to apply for a presidential pardon. The presidential pardon application is submitted through the Justice Department’s Office of the Pardon Attorney. However, applying for a presidential pardon is not guaranteed to be successful. Even if it is, a presidential pardon does not necessarily restore an individual’s firearm rights unless specifically stated.

The “Federal Firearm Petition”

Individuals seeking restoration of firearm rights must identify the applicable relief mechanism, which may include state-law relief, an application under 18 U.S.C. § 925(c) when available, or a presidential pardon. While there is no ordinary or standard-form federal petition, this custom-designed document serves as a formal request for relief to the appropriate federal authorities. At a minimum, a federal firearm petition should be supported with:

• Documentation of the individual’s sentence completion;
• A comprehensive record of the individual’s criminal history; and,
• Evidence of the individual’s rehabilitation and a change in character or circumstances.

If the individual is seeking discretionary relief, such as relief via a presidential pardon, they will also want to include additional information that addresses the relevant criteria for the application. This includes evidence of:

• Prior employment and current and future employment opportunities;
• Participation in substance abuse treatment or mental health rehabilitation;
• Degree or educational attainment, and/or certifications;
• Citizenship and community involvement, including volunteering or leadership roles;
• Character references, testimonials, and other evidence of good conduct since the prior offense.

If you have a drug conviction and need to restore your firearm rights under federal law, we recommend consulting with an experienced attorney. We can help you determine your eligibility, develop the appropriate strategy for seeking relief, and handle all of the legal paperwork and procedures on your behalf.

Why can NICS deny or delay a transfer after the disability is removed?

As previously discussed, holding a state concealed-carry license is not the same as being eligible to possess or purchase firearms under federal law. When attempting to purchase or transfer a firearm from a Federal Firearms Licensee (FFL), individuals must go through a background check with the National Instant Criminal Background Check System (NICS).

If a previous legal disability triggers a “deny” or “delay” on an NICS check, resolving the disability alone may not be sufficient to ensure a successful future transaction. The FBI’s NICS program is separate from the process for restoring firearm rights under federal law; as a result, clearing the records that lead to an NICS denial or delay may not necessarily follow the same procedure as applying for a relief petition under 18 U.S.C. § 925(c).

Individuals who run into the same problem repeatedly when attempting to purchase firearms should consider applying to the FBI’s “Voluntary Appeal File” (VAF). If an individual is approved for the VAF, the FBI will assign a Unique Personal Identification Number (UPIN). When conducting a background check, an applicant can provide their UPIN to help the FBI quickly distinguish them from other individuals who may have similar (or the same) names and who have criminal records, and thereby help avoid the denial or delay for which the applicant was flagged in the past.

Finally, federal law permits an FFL to transfer a firearm to an individual that has’ had their background check “delayed” under a specific exception. If a “delay” response is returned, but does not resolve within three business days, the FFL is permitted to complete the transfer. However, there are exceptions to this rule, and an individual must be very careful when using the exception, as failing to meet the legal requirements can lead to federal firearm charges.

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 888 348 8028 to speak with our team.