Federal Firearms Defense Lawyer

Criminal Defense Lawyer John L. Calcagni, III

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Federal Firearm and Weapon Offenses

The right to keep and bear arms is protected by the Second Amendment to the U.S. Constitution.  However, this is not an unlimited right.  As such, access to firearms is controlled by a number of federal statutes.  Two main laws govern federal gun crimes: 18 U.S.C § 922 and 18 U.S.C. § 924 of the United States Code, which is the main criminal code of the federal government.  These laws place regulations on the manufacture, transport, trade, possession, transfer, record keeping, and destruction of firearms, ammunition, and firearm accessories. 

In addition to federal gun laws, all state governments and some local governments have their own laws that regulate firearms.  These laws are enforced by a federal agency known as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), along with state law enforcement agencies.  The possible punishments that a person may face if convicted of a firearm or weapon charge vary and may be severe.

General Considerations

What is a Considered a Firearm

18 U.S.C § 921 defines a firearm as any weapon (including a starter gun) which can expel a projectile by the action of an explosive or is designed or may be readily converted to do so.  This includes the frame or receiver of any such weapon, any firearm muffler or silencer or any destructive device.  A “destructive device” includes any explosive, incendiary or poison gas – (i) bomb; (ii) grenade; or (iii) similar device, or any combination of parts designed or intended to be converted into a destructive device, or from which a destructive device may be readily assembled.  The definition does not include black powder or antique type firearms.

Furthermore, the law provides a more direct description of certain firearm terms that are common with weapons charges. Below are a few examples of the more common firearm terms.

  • Ammunition: This means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.
  • Shotgun: A weapon designed and intended to be fired from the shoulder using the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
  • Short-Barreled Shotgun: Also known as a “sawed-off shotgun,” this is any shotgun with an overall length of less than 26 inches or barrel length of less than 18 inches.
  • Rifle: A weapon designed and intended to be fired from the shoulder using the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.
  • Short-Barreled Rifle: Also known as a “sawed-off rifle,” this is any rifle with an overall length of 26 inches or barrel length of less than 16 inches.
  • Machinegun: Any weapon which shoots, is designed to shoot, or can be readily restored to shoor, automatically more than one shot, without manual reloading, by a single function of the trigger.
  • Semiautomatic Rifle: Any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.
  • Handgun: A firearm which has a short stock and is designed to be held and fired by the use a single hand, and any combination of parts from which a “firearm” can be assembled.

What is Possession for Purposes of a Firearm Offense

The term “possess” means to exercise authority, dominion, or control over something.  The law recognizes different kinds of possession, and this definition does not necessarily mean the same thing as legal ownership.  Possession includes both “actual” and “constructive” possession.  A person who has direct physical control of something on or around his person, and has knowledge of its nature, is considered in “actual” possession of it.  For example, when someone has immediate physical contact, such as carrying a firearm on their person, they would have actual possession of it.  Even if one does not have actual possession over something but knowingly has both the power and the intent at a given time to exercise dominion or control over it, either by himself or herself, or through another person, they are then in “constructive” possession of it.  Someone who has access to a firearm they keep back at home would be an example of constructive possession.

“Possession” also includes “sole possession” and “joint possession.”  Specifically, if one person alone has actual or constructive possession, such possession is “sole.”  If two or more individuals share actual or constructive possession, possession is then “joint.”  

Mere presence near something or simply having knowledge of its location, by itself, is not enough to prove the possession of something. The defendant must have known the nature of what he or she possessed. In this regard, the very possession of an item may give rise to the inference that the person who possesses the item knows the nature of what he possesses. Possession is also not conditioned on the length of time that a person has an item under control. Knowing or conscious contact with an item, even though fleeting or momentary, is sufficient to constitute the element of possession, so long as during that time period the defendant knowingly and intentionally exercised dominion and control over that item.

Federal Jurisdiction

The offenses that fall under 18 U.S.C. § 922 require that the firearm in question must have traveled in interstate or foreign commerce in order to establish federal jurisdiction.  In firearm cases, this means that the prosecutor must show that the firearm or ammunition moved from one state to another or from a foreign country at some point in history.  As an example, if the firearm in a particular case was manufactured in Kentucky and is recovered in Connecticut, the interstate nexus requirement has been satisfied.  If the firearm was manufactured in Kentucky and recovered in Kentucky, but the prosecutor can show that it was used to commit a crime in New York years ago, this would also be sufficient.   

The travel need not have been connected to the offense the defendant has been charged with, nor must the travel have been in furtherance of any unlawful activity.  Moreover, the travel didn’t have to occur while the defendant was in possession of the ammunition or firearm.  In order to establish whether a gun involved in a crime has traveled in interstate commerce, the ATF can usually trace the weapon to determine where it was manufactured and sold.  

As with other federal crimes, jurisdictional issues are important to consider.  A number of the offenses enumerated here require that the firearm involved in the offense traveled in interstate commerce.  Therefore, intrastate conduct, meaning existing or occurring within the boundaries of only one state, may not trigger the federal government’s law enforcement powers, leaving the conduct to be investigated and prosecuted by a state government agency.  

Possession of a Firearm or Ammunition by a Prohibited Person

18 U.S.C. § 922(g) criminalizes prohibited persons from knowingly and intentionally possessing, receiving or transporting, in and affecting commerce, firearms or ammunition.  While the right to keep and bear arms is protected by the Second Amendment, one of the limitations imposed on this right includes who may actually possess a firearm.  Possession of a firearm by a “prohibited person” is illegal.  

Legal Elements

In order to be convicted of Possession of a Firearm or Ammunition by a Prohibited Person, a prosecutor must prove beyond a reasonable doubt the following legal elements:

  • (1)  the defendant received, transported, or knowingly possessed a firearm or ammunition;
  • (2) the defendant was a prohibited person at the time of the possession, receipt, or transport; and
  • (3) the firearm or ammunition was connected with interstate or foreign commerce. 

Legal Definitions

Prohibited Person

A “prohibited person” is anyone who falls into one of these categories:

  • (a)  Felon (Generally, this means anyone who has been convicted of a crime punishable by more than 1 year in prison.  Additionally, this statute prohibits persons awaiting trial on felony charges from receiving firearms);
  • (b)  Drug user or addict (The statute nor case law provide clear guidance on who is considered an unlawful user of or addict to a controlled substance.  However, ATF regulations require that the drug use must have occurred “recently enough to indicate that the individual is actively engaged in such conduct.”  Similarly, one’s drug use or addiction may qualify them as a prohibited person when paraphernalia is seized from the defendant, or when they test positive for drugs and/or claim drugs were possessed for personal use);
  • (c)  Alien (this includes illegal aliens and aliens lawfully admitted under non-immigrant visas, i.e., those aliens not admitted for permanent residence.  This provision does not prohibit aliens who lawfully possess a “green card” from possessing guns or ammunition);
  • (d)  Is subject to a domestic restraining order (the order must prohibit contact with an intimate partner, or child of the subject and must have been issued only after a hearing of which the subject was notified and at which the subject had an opportunity to participate.  The order must also find the subject poses a threat to the physical safety of the intimate partner or child or must prohibit the use, threatened use or attempted use of physical force);
  • (e)  Has a prior conviction for domestic assault (includes a prior conviction for any assault or threatened use of a deadly weapon against a present or former spouse, partner, or child.  The subject must have been entitled to a jury trial and been represented by counsel in the prior proceeding or be shown to have waived those rights);
  • (f)  Fugitive from justice (fled any state to avoid being prosecuted or to avoid testifying in any criminal proceeding); or
  • (g)  Dishonorably discharged from the military

Possession

As discussed above, the term “possess” means to exercise authority, dominion, or control over something. This includes both actual and constructive possession, along with sole and joint possession.

Receipt

This is defined as knowingly accepting or taking possession of something.

Knowingly

This means that an act was done voluntarily and intentionally, not because of mistake or accident.  It should be noted that in a 2019 decision the U.S. Supreme Court held that the knowledge requirement under 18 U.S.C. § 922(g) requires prosecutors to show that the defendant knew he possessed the firearm/ammunition in question and that he also had knowledge that he was a prohibited person at the time of possession.

Potential Punishment if Convicted

Aside from sentencing enhancements that may apply for armed career criminals, 18 U.S.C. § 924(a)(2) provides that the maximum penalty for most prohibited persons in possession of a firearm is 10 years imprisonment and a fine of $250,000. 

Armed career criminals are those who have three or more convictions for a serious drug offense or felony crime of violence.  A defendant who falls into this category faces a mandatory minimum sentence of 15 years imprisonment under 18 U.S.C. § 924(e).  Moreover, illegal aliens and non-immigrant aliens who are convicted of possession of a firearm are also subject to deportation under 18 U.S.C. § 1227(a)(2)(C) in addition to the other penalties imposed upon prohibited persons.  

Similarly, anyone who knowingly sells, gives, or otherwise disposes of any firearm or ammunition to any “prohibited person” is subject to a maximum of 10 years in federal prison under 18 U.S.C. § 922(d).

Prohibitions on Juvenile Weapons Possession

In addition to the “prohibited persons” enumerated under 18 U.S.C. § 922(g), § 922(x) criminalizes possession of firearms by juveniles, absent certain exceptions.  Specifically, subsection 922(x) deems it unlawful for anyone under the age of 18 to knowingly possess a handgun or ammunition unless they have written consent by a parent or guardian, or if the handgun is possessed for use in specific circumstances (e.g., hunting, target practice, or in the course of ranching or farming on the juvenile’s property, etc.). 

A juvenile who violates this statute could potentially face fines and a maximum sentence of 1-year imprisonment, or both.  Any person who sells, delivers, or transfers a handgun to a juvenile also faces fines and 1-year imprisonment unless the transferor had reason to believe the juvenile would commit a crime of violence with the firearm, in which case the sentence is raised to a maximum of 10 years imprisonment.

Under 18 U.S.C. § 922(b), federal firearm licensees (FFL) are also prohibited from selling or transferring firearms or ammunition to anyone the licensee knows or has reason to believe is under age 21, with an exception for those over the age of 18, to whom they are permitted to sell or transfer shotguns or rifles.  Unless the juvenile has written consent of a parent or uses the firearm/ammunition in relation to the purposes described above, FFL’s in violation of this statute face up to 5 years imprisonment.

Firearm Used, Carried or Possessed in Furtherance of Drug Trafficking or a Crime of Violence

Under 18 U.S.C. § 924(c)(1)(A) it is against federal law to possess a firearm in connection with a crime of violence or a drug trafficking crime.  Any person who “uses or carries” a firearm during or in connection to, or possesses a firearm “in furtherance of,” drug trafficking or a federal crime of violence may receive enhanced penalties under § 924(c).  It should be noted that because the underlying offense here (drug trafficking or a crime of violence over which there is federal jurisdiction) is prosecutable in federal court, there is no requirement that the firearm involved in the offense was connected to interstate commerce.

Legal Elements

In order for a defendant to be convicted of this crime, prosecutors must prove the following legal elements:

  • (1) the defendant committed a federal crime of violence or drug trafficking crime for which the defendant may be prosecuted in a court of the United States; and
  • (2) the defendant used or carried a firearm, or knowingly possessed a firearm in furtherance of the commission of that crime or crimes.

Legal Definitions

Crime of Violence

For the purposes of this subsection, the term “crime of violence” is defined as an offense that is a felony and – (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.  

Drug Trafficking Crime

The term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.

Use

Courts have determined that “use” of a firearm requires showing something more than mere possession.  Specifically, for someone to have “used” their firearm, prosecutors would need to show the defendant actively employed the weapon.  Brandishing, displaying, striking with, and obviously, firing or attempting to fire the firearm are examples of active employment.  “Use” of a firearm may also apply in more subtle circumstances as well, including when a defendant merely makes reference to a firearm during the commission of a crime.  

The definition of “use” has been subject to various interpretations by the federal Courts of Appeals, with the majority of the circuits construing “use” broadly.  For instance, if a drug dealer engages in a drug deal at his home while simply keeping a firearm in a closet, in the majority of circuits he could be guilty under this statute even if he didn’t make reference to, or “actively employ” the weapon in any way.  According to the majority, the mere presence of a firearm at the scene of a drug arrest would be enough to satisfy this statute because the weapon could be used to protect the trafficker’s drugs and cash and given the fact that the weapon could possibly be used, it’s reasoned that the weapon has, in fact, been used to create a “drug fortress.”  

By contrast, a minority of circuits require that the government prove more; prosecutors must show that the defendant at least strategically placed a firearm during a drug transaction to support an inference that they intended to use, or would have used, the weapon during the transaction.  Ultimately, these diverging conclusions regarding the word “use” under § 924(c)(1)(A) means that defendants who are subject to the jurisdiction of different circuits of the U.S. Courts of Appeals can be charged differently and may face a wider range of penalties.

Carry

The “carry” element has also been subject to varying definitions by the federal circuit courts.  All of the circuits agree that carrying requires that the defendant knowingly possessed and transported the firearm.  However, some of the circuits also require that the firearm have also been readily accessible.  So, in those jurisdictions, a defendant who transported a gun in the trunk of a car will not qualify as “carrying” because he or she did not have ready or easy access to the weapon.

In Furtherance Of

Possession of a firearm is “in furtherance of” a drug trafficking crime when it furthers, advances, or helps forward that offense.

Potential Punishment if Convicted

Penalties under this section vary depending on the type of firearm involved, how the firearm was used, and whether the offense 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.  

In a standard case, the defendant faces a minimum of 5 years imprisonment.  If the defendant was found guilty of brandishing the firearm (i.e., all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, regardless of whether the weapon was directly visible to that person), they face a minimum of 7 years imprisonment.  If the firearm was discharged, a minimum sentence of 10 years imprisonment will be imposed.  A 10-year minimum also applies in cases where the offense involved a short-barreled rifle or shotgun.  

If the offense involved a machinegun, silencer, or destructive device (i.e., an explosive or poison gas, etc.), the defendant faces a minimum of 30 years imprisonment.  Those who are convicted of a second or subsequent conviction under this statute shall be sentenced to no less than 25 years in prison.  Finally, in instances where the offense involves a machinegun, silencer, or destructive device, and the defendant already has a previous conviction under this statute, they shall be sentenced to life in prison.

Possession of a Firearm with an Obliterated Serial Number

18 U.S.C. § 922(k) criminalizes the possession of a firearm in or affecting commerce with an obliterated or removed serial number.  Every firearm that is manufactured has a unique serial code and other markings that are used to identify the firearm and track both its sale and ownership.  As such, this statute makes it unlawful to remove or change the name of the maker, model, manufacturer’s number, or any other mark of identification on any firearm.  History has shown that criminals will go to great lengths to conceal their identity and avoid detection by law enforcement.  One way they attempt to do so when committing crimes with guns is to erase, alter, or obliterate identifying numbers and/or marking on the firearm to prevent law enforcement from tracing the item back to its point of origin, seller, last registered owner, and more.

Legal Elements

In order for a defendant to be convicted of this crime, prosecutors must prove the following legal elements:

  • (1) the defendant knowingly possessed the firearm;
  • (2) that the serial number was removed, obliterated, or altered at the time the defendant possessed the firearm;
  • (3) that the defendant knew the serial number had been removed, obliterated, or altered; and
  • (4) that the firearm was connected with interstate or foreign commerce. 

Potential Punishment if Convicted

Anyone convicted of Possession of a Firearm with an Obliterated Serial Number under § 922(k) faces fines, a maximum sentence of 5 years in prison, or both.

Possession of a Stolen Firearm

Under 18 U.S.C. § 922(j), it is illegal for anyone to knowingly receive, possess, sell, or dispose of any stolen firearm or ammunition that had been shipped or transported in interstate commerce, while knowing or having reasonable cause to believe that the firearm or ammunition was stolen.

Legal Elements

In order for a defendant to be convicted of this crime, prosecutors must prove the following legal elements:

  • (1) that the defendant knowingly received, possessed, sold, or disposed of a stolen firearm;
  • (2) that the firearm had moved or was shipped in interstate commerce (either before or after it was stolen); and
  • (3) that the defendant knew or had reasonable cause to believe that the firearm was stolen.

Potential Punishment if Convicted

Anyone convicted of Possession of a Stolen Firearm under § 922(j) faces fines, a maximum sentence of 10 years in prison, or both.

Brady Act & Making False and Fictitious Written Statements to a Federally Licensed Firearms Dealer in Acquisition of a Firearm

The Brady Handgun Violence Prevention Act, which was enacted in 1993, obligates law enforcement officials to conduct background checks before someone can purchase a handgun from a gun dealer.  Under the Brady Act, it is unlawful for any licensed firearms dealer to sell, deliver, or transfer a handgun to an individual who is not licensed unless there is compliance with the Brady Act waiting period.  Violation of this statute carries a penalty of a $1,000 fine and no more than 1-year imprisonment. 

Moreover, under §§ 922(a)(6) and 924(a)(2), anyone who makes a false statement to a licensed dealer in connection with the acquisition of a firearm is subject to a maximum of 10 years imprisonment.  A false statement can include: name; age; address; date of birth; identification number; and status as a convicted felon, fugitive, unlawful user of or addict to controlled substance; prior commitment to a mental institution; illegal alien; dishonorable discharge from the military; status as U.S. citizen who has renounced citizenship; being subject to certain protection orders and having been convicted of a misdemeanor crime of domestic violence.  False statements can also include the representation that the purchaser is the real intended owner of the firearm when the purchaser is actually making a “straw” purchase for someone else.

To be convicted under § 922(a)(6), prosecutors must prove the following legal elements: (1) the defendant knowingly made a false statement; (2) that at the time he made the statement, the defendant was trying to buy a firearm from a licensed dealer; and (3) that the statement was intended to, or likely to, deceive the licensed dealer about a fact material to the lawfulness of the sale.  

A statement is considered “false” if it is untrue at the time it was made, and a false statement is made “knowingly” if the person making it knows that it is false or demonstrates a reckless disregard for the truth and has a conscious purpose to avoid learning the truth, and is not acting merely by ignorance, accident or mistake.  The government does not have to prove that the defendant knew he or she was violating the law in order to convict them.  

While the crime of making a false statement to a licensed dealer in connection with the acquisition of a firearm is separate and apart from the Brady Act, every time a Brady background check establishes that a handgun should not be sold to the prospective purchaser, the prospective purchaser has falsified the form and, therefore, the false statement statute has been violated.


If you have been charged with a Federal Firearms Offense, it is important that you consult with and seek legal representation from an attorney who is familiar with federal firearms and well-versed in the nuances of firearms law in both your state and federal jurisdictions. Call Federal Attorney John L. Calcagni, III today at 401-351-5100.