Federal Felon in Possession Charges

Federal Felon in Possession Charges: How One Old Conviction and One Gun Creates 15 Years

Felon in possession is the multiplication crime. It takes your past – however long ago, however minor – and multiplies it into federal prison time. A theft conviction from when you were 20 becomes a 10-year gun charge at 50. Three old drug cases become a 15-year mandatory minimum. The federal system doesn’t measure what you did TODAY with that gun. It measures what you did YEARS AGO and uses that history to maximize your current sentence. Your past is the weapon they use against you.

Here’s what most people don’t understand about 18 USC 922(g): you don’t have to fire the gun. You don’t have to carry the gun. You don’t even have to touch the gun. Under the constructive possession doctrine, if a firearm is in your home or vehicle and you know it’s there and have the ability to access it, you “possess” it under federal law. Living with someone who owns a gun can make you a federal felon. The law has stretched the concept of possession so far beyond physical contact that people get convicted for guns they’ve never held in their hands.

The numbers tell the reality of this charge. In fiscal year 2024, there were 7,419 federal convictions under Section 922(g). The average sentence was 71 months – almost 6 years. But if the Armed Career Criminal Act applies because you have three qualifying prior convictions, that average jumps to 203 months – over 17 years. And 97.7% of defendants go to prison. This is not a charge you beat. This is a charge you survive. And surviving it requires understanding exactly how the system works against you.

Your Past Is The Weapon They Use Against You

Here’s the thing about federal felon in possession that destroys people. The gun itself is almost secondary. What matters is your criminal history. A 922g charge is basicly a referendum on your entire life, and the federal sentencing guidelines are designed to make your past hurt you as much as possible.

The base offense level for felon in possession ranges from 12 to 26 depending on the circumstances. Thats a huge range – anywhere from 10 months to over 6 years before any adjustments. But then your criminal history kicks in. Prior convictions add points. More points mean higher criminal history category. Higher category means longer sentence. And if you hit three qualifying “violent felonies” or “serious drug offenses” under the Armed Career Criminal Act, you trigger a 15-year mandatory minimum that the judge cant go below no matter what.

Think about what this means practicaly. The guy who got caught with a gun in his car during a traffic stop – his sentence isnt really about the gun. Its about wheather he has prior convictions, what those convictions were for, and wheather they trigger ACCA. Two people with identical current conduct – same gun, same circumstances, same everything about today – can face completly different sentences based solely on what they did 10, 15, 20 years ago.

And heres the kicker – the priors dont have to be recent. A drug conviction from 1995 can be an ACCA predicate in 2025. A burglary from your twenties counts against you in your fifties. The federal system has no forgiveness mechanism, no statute of limitations on using your past against you. Once your a felon, your a felon forever for purposes of 922g. And once you have three qualifying priors, your an armed career criminal forever – even if those crimes happened decades ago and you havent been in trouble since.

Constructive Possession: You Dont Have To Touch The Gun

Heres were federal felon in possession cases get truly terrifying. Most people think “possession” means having something in your hands or on your person. Under federal law, possession is much broader. Theres actual possession – the gun is on you or in your immediate control. And theres constructive possession – you know the gun is there and you have the ability to exercise control over it.

Constructive possession is how the majority of felon in possession cases are prosecuted. The gun was in the defendants car. The gun was in the defendants apartment. The gun was in a shared space the defendant had access to. You didnt have to be holding it. You didnt have to be carrying it. You just had to know it was there and have the ability to access it.

This matters becuase it means you can be convicted for a gun that belongs to someone else:

• Your roommates gun in a shared closet? If you knew about it and could get to it, thats constructive possession.
• Your girlfriends gun in the apartment you share? Same thing.
• A gun in a car your borrowing from a friend? If you knew it was there, your possessing it under federal law.

The doctrine has been stretched so far that simply living with a gun owner can create federal criminal liability.

OK so how does the government prove constructive possession? They look at factors like: were you the only person with access to where the gun was found? Were there documents or personal items with your name near the gun? Did you make statements acknowledging you knew about the gun? Were your fingerprints on it or near it? In jointly occupied spaces, the government has to do more then just show the gun was there – they have to link you to it specifically. But prosecutors have gotten good at building these cases, and constructive possession theories have a high success rate at trial.

ACCA: How Three Old Convictions Becomes 15 Mandatory Years

The Armed Career Criminal Act is basicly a sentence multiplier that turns a 10-year maximum into a 15-year mandatory minimum. If ACCA applies to your case, the entire calculation changes. The judge has zero discretion to go below 15 years. Your guidelines calculation becomes almost irrelevant becuase your floor is set by statute. And the average sentence for ACCA defendants isnt 15 years – its 203 months, over 17 years.

Heres how ACCA works. If you have three prior convictions for “violent felonies” or “serious drug offenses,” you trigger the enhancement:

• Violent felony includes crimes with an element of force, plus specifically listed offenses like burglary, arson, and extortion
• Serious drug offense means drug trafficking crimes punishable by at least 10 years
• Three of any combination = 15-year minimum

Look at what happened to Charles Derryberry. Mississippi man, gang leader, caught with a gun. Basic felon in possession. But Derryberry had 17 prior felony convictions. ACCA applied. His sentence? 327 months – over 27 years in federal prison. Thats not for shooting anyone. Thats not for committing a crime with the gun. Thats for being a felon who possessed a firearm. The gun itself was almost incidental to the sentence – his history determined his fate.

And heres the uncomfortable truth about ACCA. The average non-ACCA felon in possession sentence is 67 months – about 5.5 years. The average ACCA sentence is 203 months – about 17 years. Thats a difference of over 11 years based purely on your criminal history, not on what you did with the gun. The system is designed to identify people with certain histories and incapacitate them for decades. Whether you think thats just or not, thats how it works.

State vs. Federal: Same Crime, Different Decades

Heres something that can change everything about your case: wheather your prosecuted in state or federal court. The exact same conduct – felon possessing a firearm – carries completly different consequences depending on which system you end up in. And the choice of which system handles your case is entirely up to the prosecutors. You dont get to decide. They do.

In many states, felon in possession carries relatively modest sentences:

• California: 16 months to 3 years
• Ohio: Third-degree felony, maybe 3-5 years
• Florida: 5 to 15 years with mandatory minimums (tougher but still often less than federal)
• Federal: 10-year maximum, 15-year mandatory minimum if ACCA applies, average 71 months

Same crime. Same gun. Different decades of your life depending on which door you walk through.

The Department of Justice runs a program called Project Safe Neighborhoods specifically designed to federally prosecute gun crimes that might otherwise stay in state court. PSN brings together federal, state, and local law enforcement to identify violent offenders and target them for federal prosecution. If your case gets picked up by PSN, your local gun charge becomes a federal case with federal sentencing.

What determines wheather you go state or federal? Theres no magic formula. Prosecutors consider factors like your criminal history, wheather the gun was used in another crime, wheather theres a connection to gangs or drug trafficking, and local enforcement priorities. But at the end of the day, its discretionary. The same defendant with the same facts can end up in state court with a few years exposure or federal court facing a decade or more. That decision isnt appealable. Its just how the system works.

The Rehaif Defense: Did You Know You Were a Felon?

In 2019, the Supreme Court decided a case called Rehaif v. United States that changed what the government has to prove in 922g cases. Before Rehaif, prosecutors only had to prove you possessed a gun and that you were in fact a felon. After Rehaif, they also have to prove you KNEW you belonged to the category of people prohibited from possessing firearms. You have to know you were a felon.

This sounds like it should help defendants, and in theory it does. If you genuinly didnt know you were a felon – maybe you thought your conviction was a misdemeanor, maybe you thought your rights were restored, maybe you didnt understand the legal status of your prior conviction – thats potentially a defense. The government has to prove knowledge, and if they cant, you should walk.

Heres the reality though. How many people genuinly dont know there felons? If you went through a felony arrest, felony prosecution, felony conviction, and felony sentencing, you probably know your a felon. Courts have held that the government can prove knowledge through circumstantial evidence – the length of your sentence, wheather you served prison time, the formal nature of the proceedings. If you served years in prison, its hard to argue you thought it was a misdemeanor.

So Rehaif helps in some cases. If you genuinly had a situation were the nature of your conviction was unclear – maybe a guilty plea that was ambiguous about felony vs. misdemeanor status, maybe a conviction in a state with unusual classification rules – theres a potential defense there. But for most defendants, the knowledge element is easily proved, and Rehaif dosent change the outcome.

Second Amendment Challenges After Bruen

The legal landscape for felon in possession is shifting, and if your facing charges, you need to understand whats happening. In 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, which established that gun regulations have to be consistent with the Nations historical tradition of firearm regulation. This created a new test for evaluating gun laws – and some courts are using it to strike down felon-in-possession prosecutions.

The Third Circuit led the way. In Range v. Attorney General, they held that applying the felon ban to someone convicted of food stamp fraud decades ago was unconstitutional. The defendant had a single non-violent conviction from years before. The court found no historical tradition of disarming non-violent offenders and ruled the lifetime ban couldnt apply to him.

The Ninth Circuit followed with similar rulings. Some district courts have dismissed felon-in-possession charges against non-violent offenders entirely. Theres a real circuit split developing, and eventually the Supreme Court will probly have to resolve it. But heres the uncomfortable truth: these challenges are working mostly for non-violent felons. If your predicate conviction involved violence, drug trafficking, or other serious conduct, courts are still upholding the ban. The historical analysis tends to find that dangerous individuals have always been subject to disarmament.

So wheather a Second Amendment challenge helps you depends heavily on what your prior conviction was for. Tax fraud? Maybe. Drug possession? Possibly. Burglary, robbery, assault? Much harder. The law is genuinly evolving, and your attorney should evaluate wheather a constitutional challenge makes sense in your specific case. But dont assume Bruen is a get-out-of-jail-free card. For most defendants with violent histories, it isnt.

What To Do If Your Facing Federal Felon in Possession Charges

If your reading this becuase your actually facing 922g charges, heres what you need to understand right now. The decisions you make in the next few weeks will determine years of your life.

First: determine wheather ACCA applies. This is the single most important question in your case. If you have three qualifying prior convictions for violent felonies or serious drug offenses, your facing a 15-year mandatory minimum. If you dont, your facing up to 10 years with sentencing guidelines that might result in much less. Everything about your strategy depends on this question.

Second: challenge the prior convictions. Even if you have multiple felonies, they might not all qualify as ACCA predicates. The “categorical approach” analysis that courts use to determine wheather a prior conviction counts is complex and technical. Some burglaries count. Some dont. Some drug offenses count. Some dont. Your attorney needs to analyze each prior conviction individually to determine wheather it actually triggers ACCA. This analysis has saved defendants from mandatory minimums countless times.

Third: challenge the possession. If its a constructive possession case – the gun was in your home or car but not on your person – the government has to prove you knew about it and could access it. In jointly occupied spaces, mere proximity to the gun isnt enough. If you can create reasonable doubt about wheather you actually possessed the weapon, thats a defense.

Fourth: consider the Rehaif defense. Did you actually know you were prohibited from possessing firearms? If theres any ambiguity about the nature of your prior conviction – wheather it was really a felony, wheather your rights were restored, wheather you understood your legal status – that could be a defense.

Fifth: evaluate Second Amendment challenges. If your prior conviction was non-violent, post-Bruen case law might support a constitutional challenge to the prosecution. This is evolving law, but its a real option for the right defendants.

Sixth: understand how federal time actually works. Theres no parole in the federal system. You serve at least 85% of your sentence. A 10-year sentence means 8.5 years minimum. A 15-year ACCA sentence means 12.75 years minimum. Federal prison is real time. When they say years, they mean years. This isnt state court were you might serve half with good behavior. When you get federal time, you do federal time.

How These Cases Usually Start

Most federal felon in possession cases dont start with a dramatic investigation. They start with a traffic stop. Your pulled over for a broken taillight or expired registration. The officer runs your information and sees you have a felony record. Maybe the officer asks to search your car. Maybe a drug dog gets called. Maybe theres something visible through the window. Whatever happens next, theres a gun in the car.

Now heres were things split. A state officer making that traffic stop has a choice: process the case through state court, or refer it to federal authorities. If they refer it federally – and Project Safe Neighborhoods programs encourage exactly that – what would of been a state possession charge becomes a federal case. Your 3-year state exposure becomes 10-year federal exposure. And if you have prior convictions, ACCA can make that 15 years minimum.

The timing matters becuase by the time your sitting in federal court, its often to late to change trajectorys. The decision to federalize happened early – maybe within hours or days of your arrest. Your state bond might of been low or even release on recognizance. Federal detention is different. Federal consequences are different. Everything is different, and you didnt get to choose which system you ended up in.

This is why understanding Project Safe Neighborhoods matters. The DOJ has made felon-in-possession prosecutions a priority. They fund task forces. They track metrics. They celebrate federal gun prosecutions as victories. If your a felon caught with a gun in a PSN-active district, theres a very good chance your case goes federal. And once its federal, your playing by federal rules with federal sentences.

The federal felon in possession system is designed to maximize sentences for people with criminal histories. Your average sentence is 71 months – almost 6 years. If ACCA applies, its over 17 years on average. And 97.7% of defendants go to prison. These are not good odds. But understanding the system – how ACCA works, what constructive possession means, wheather your priors actually qualify, and how cases get federalized in the first place – is the first step toward navigating it. And navigating it correctly can be the difference between 3 years and 15.

Remember: federal prosecutors have complete discretion over wheather to charge you federally. Once they do, your in a system with no parole, mandatory minimums, and sentencing guidelines designed to maximize punishment based on your history. The gun dosent define your sentence. Your past defines your sentence. And in federal court, the past never goes away.

Dont wait to find out how bad it can get.