Federal Firearms Offenses: Charges

Federal Firearms Offenses: Charges

The federal government does not treat a firearms charge as an accessory to something else. It treats the firearm as the crime. This distinction, which most defendants do not perceive until the indictment is already filed, determines the trajectory of everything that follows: the court, the sentencing range, the absence of parole, and the particular silence that accompanies a federal conviction on a record that does not expire.

Most people who contact this office about a federal gun charge have already made one error that preceded the legal one. They assumed the matter would remain in state court. They assumed the penalties would resemble what a cousin or a colleague received years ago for something that sounded similar. Federal firearms penalties bear almost no resemblance to what state courts impose for charges that sound the same on paper.

Prohibited Persons Under 18 U.S.C. § 922(g)

Section 922(g) of Title 18 is the statute under which the majority of federal firearms prosecutions originate. It prohibits certain categories of individuals from shipping, transporting, possessing, or receiving any firearm or ammunition that has moved in interstate or foreign commerce. The categories are enumerated, and the enumeration is broader than most clients expect.

The most frequently charged subsection is 922(g)(1): felon in possession. If one has been convicted of any offense punishable by imprisonment for a term exceeding one year, one is prohibited. The critical word is punishable. The sentence imposed is irrelevant. A conviction carrying a possible two year term, even where the court imposed only probation, renders the individual a prohibited person under federal law. We have consulted with business owners who completed probation a decade prior, purchased a firearm for home protection through a licensed dealer, passed the state background check, and believed themselves to be in lawful possession. They were not.

The remaining subsections extend the prohibition to fugitives from justice, unlawful users of controlled substances, persons adjudicated as mentally defective or committed to mental institutions, certain aliens, individuals dishonorably discharged from the armed forces, persons who have renounced their citizenship, individuals subject to qualifying domestic violence restraining orders, and those convicted of misdemeanor crimes of domestic violence. Each subsection carries its own body of interpretive case law that continues to develop.

The penalty for a standard 922(g) violation is imprisonment for up to ten years, a fine of up to two hundred and fifty thousand dollars, and up to three years of supervised release. The sentencing guidelines assign a base offense level between 12 and 26, which produces a guideline range that can span from ten months to over six years before enhancements are considered.

But the standard penalty is not where the danger concentrates. Under the Armed Career Criminal Act, codified at 18 U.S.C. § 924(e), a defendant convicted of violating 922(g) who possesses three or more prior convictions for violent felonies or serious drug offenses faces a mandatory minimum of fifteen years. No parole. No judicial discretion to sentence below that floor. The maximum under ACCA is life imprisonment, a fact that the statute implies through its structure rather than states in plain terms (which, if we are being precise, is itself a peculiarity of the drafting that has generated its own line of appellate argument). Three prior convictions can transform a ten year ceiling into a fifteen year floor. The arithmetic is disorienting.

What qualifies as a violent felony under ACCA has been the subject of sustained litigation. The Supreme Court in Johnson v. United States struck the residual clause of the ACCA’s definition as unconstitutionally vague in 2015. What remained were the elements clause and the enumerated offenses: burglary, arson, extortion, and offenses involving the use of explosives. Whether a given prior conviction qualifies is determined categorically, meaning the court examines the elements of the offense of conviction, not the facts of what the defendant actually did. The gap between elements and conduct can be substantial.

In fiscal year 2024, according to the Sentencing Commission, over seven thousand federal cases involved convictions under 922(g). Something like ninety percent of those individuals were convicted under the felon in possession provision. The average age was thirty six.

The Charge That Stacks

Section 924(c) of Title 18 is the provision that transforms a federal case from severe to catastrophic. It applies when a firearm is used, carried, or possessed during and in relation to a crime of violence or drug trafficking crime. The sentence it imposes is mandatory, consecutive, and immune to judicial reduction.

The structure is tiered. Possession or use of a firearm during a qualifying offense carries a minimum of five years. Brandishing the firearm raises the floor to seven. Discharging it raises the floor to ten. If the firearm is a short barreled rifle, a short barreled shotgun, or a semiautomatic assault weapon, the minimum is ten years regardless of how the weapon was employed. A machinegun or silencer triggers a thirty year minimum. For a second conviction under 924(c), the mandatory minimum is twenty five years.

Every one of these terms runs consecutive to the sentence for the underlying offense. A defendant convicted of drug trafficking and a single 924(c) count does not serve the sentences concurrently. The defendant serves them stacked. Dean v. United States, decided in 2017, permitted judges to consider 924(c) mandatory minimums when setting the sentence for the underlying offense, but the consecutive requirement itself remains fixed. The judge has no authority to alter this arrangement.

The Sentencing Commission reported that in fiscal year 2024, the average sentence for all 924(c) defendants was a hundred and fifty months.

And here is where the definition of the predicate offense becomes the fulcrum of the defense. In United States v. Taylor, decided in 2022, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a crime of violence for 924(c) purposes. The reasoning was categorical: because the elements of attempted robbery do not require the use, attempted use, or threatened use of physical force, the offense cannot serve as a predicate. That ruling collapsed a significant number of pending 924(c) convictions. Whether a defendant’s specific predicate qualifies is a question that demands statutory analysis, not intuition.

Straw Purchases and Trafficking

Before 2022, straw purchase prosecutions operated under something of a legal fiction. The primary charging vehicle was 18 U.S.C. § 922(a)(6), which criminalizes making a false statement material to the lawfulness of a firearms sale. A person who purchased a firearm on behalf of another and marked “yes” on Question 21.a of ATF Form 4473, affirming that they were the actual buyer, committed a federal felony punishable by up to ten years. The charge was viable, but it bore the character of a paperwork violation, and sentencing reflected that.

The Bipartisan Safer Communities Act changed the architecture. Section 932 of Title 18 now establishes a standalone federal offense for straw purchasing, carrying a maximum of fifteen years. If the purchaser knew or had reasonable cause to believe the firearm would be used in a felony, an act of terrorism, or a drug trafficking crime, the ceiling rises to twenty five years. A companion provision, Section 933, addresses trafficking with identical penalties. Section 934 authorizes civil forfeiture of proceeds.

The ATF’s eTrace system is the instrument through which most straw purchase investigations originate. When a firearm is recovered at a crime scene, the serial number is traced back through the chain of commerce to the first retail purchaser of record. A short interval between purchase and recovery, something like sixty or ninety days, raises the investigation from routine to urgent. Multiple purchases within a compressed period compound the scrutiny.

Constructive Possession

The concept that determines guilt in a significant proportion of 922(g) cases is constructive possession. A defendant need not be holding the firearm when officers arrive. If the government can establish that the defendant had knowledge of the firearm’s presence and the ability to exercise dominion and control over it, the element of possession is satisfied.

This is where cases are won or lost in practice. A firearm discovered in a residence shared by multiple occupants. A weapon recovered from a vehicle carrying several passengers. A gun found in a closet in a home the defendant visits but does not own. In each scenario, the prosecution must connect the specific defendant to the specific weapon through something beyond proximity. Fingerprints, DNA, statements, surveillance footage, the defendant’s access to the location where the weapon was stored: these are the threads the government weaves together.

We approach constructive possession cases by beginning where most firms conclude: with the physical evidence. The question we ask first is not whether the firearm was present but whether the government can place it in our client’s dominion to the exclusion, or at least the substantial exclusion, of other individuals who had access to the same space. In a household with three adults, a firearm stored in a common area is not obviously attributable to one resident. The prosecution must offer something more than the address.

Constitutional Challenges After Bruen and Rahimi

In 2022, the Supreme Court reshaped the analytical framework for Second Amendment challenges. New York State Rifle & Pistol Association v. Bruen established that when a firearm regulation is challenged, the government bears the burden of demonstrating that the restriction is consistent with the nation’s historical tradition of firearm regulation. The opinion displaced the means end scrutiny that lower courts had employed for over a decade and replaced it with a test that demanded historical analogy.

The consequences were immediate and disorderly. Lower courts began invalidating federal firearms restrictions that had been considered settled law. The Fifth Circuit struck down 18 U.S.C. § 922(g)(8), the provision prohibiting firearm possession by individuals subject to domestic violence restraining orders, in the case of Zackey Rahimi (who, it should be noted, had participated in five separate shootings over a two month period while subject to the order, a factual background that made the Fifth Circuit’s reasoning difficult for many observers to accept). The reasoning was that because no sufficiently analogous law existed in the founding era, the modern statute could not survive constitutional review.

In June 2024, the Supreme Court reversed the Fifth Circuit eight to one. United States v. Rahimi held that an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. Chief Justice Roberts, writing for the majority, clarified that the Bruen framework does not require a “historical twin” but rather a relevantly similar analogue. The Court identified surety laws and the going armed laws of the 1700s and 1800s as sufficient historical foundations.

The decision was narrow. It addressed 922(g)(8) as applied to Rahimi’s specific facts. Whether the reasoning extends to other subsections of 922(g) remains a question the Court did not resolve. Challenges to the felon in possession statute continue in various circuits. Some courts have upheld the provision under the Rahimi framework. Others have distinguished it. The constitutional ground is not settled, and I am less certain about where it will rest than many commentators appear to be.

Sentencing Enhancements and Guideline Calculations

The federal sentencing guidelines for firearms offenses operate through a series of specific offense characteristics that can raise the base offense level. A stolen firearm adds two levels. A firearm with an altered or obliterated serial number adds four. Possession of a firearm in connection with another felony offense adds four levels as well. If the defendant is a prohibited person and the firearm was obtained through a false statement, two additional levels apply.

The 2025 amendments to the guidelines, which took effect in November of that year, addressed machinegun conversion devices and clarified enhancements related to physical restraint and firearms. The Sentencing Commission’s work during the 2024 to 2025 amendment cycle reflected concern with devices that convert semiautomatic pistols into fully automatic weapons. Additional offense levels now attach for possession of four or more such devices, with a larger increase for thirty or more.

The interaction between statutory mandatory minimums and the guideline calculations produces outcomes that are difficult to explain to clients who arrive with expectations formed by state court. We find it useful to construct a preliminary sentencing exposure analysis before the first meeting concludes, not because the numbers are final but because the distance between expectation and reality in federal firearms cases is wide enough to change how a client approaches every subsequent decision.

What the Defense Requires

A federal firearms defense is constructed from the specific. The general principles are known. The advantage belongs to the attorney who perceives where the government’s evidence fails to connect the defendant to every element of the charged offense.

In a 922(g) case, the first question is whether the prior conviction qualifies. Not every felony satisfies the statute. Federal and state offenses pertaining to antitrust violations, unfair trade practices, and certain regulatory offenses punishable by terms exceeding one year are excluded. A conviction that has been expunged, set aside, or for which the defendant received a pardon may not qualify depending on the jurisdiction and the specifics of the restoration. This analysis requires attention to the law of the convicting jurisdiction, not just the federal statute. We have observed cases where the government’s assumption about a qualifying predicate proved incorrect at precisely the stage where correction became most consequential, and where a different firm might not have raised the question at all.

In a 924(c) case, the predicate offense is the pressure point. If the underlying crime does not categorically qualify as a crime of violence or drug trafficking crime, the 924(c) charge fails entirely. The categorical approach, refined through a line of cases including Taylor and Descamps v. United States, examines the elements of the statute of conviction rather than the defendant’s actual conduct. A statute that can be violated without the use of force does not qualify, even if force was in fact used.

The suppression of evidence remains the other essential mechanism. Fourth Amendment challenges to the search or seizure that produced the firearm can render the entire prosecution untenable. Whether the officer possessed reasonable suspicion for the stop, whether the warrant was supported by probable cause, whether the scope of the search exceeded the authorization: these are questions that occupy the earliest stages of any competent defense and, if resolved favorably, eliminate the need for every question that follows.

The first conversation is diagnostic. You describe the charge, the circumstances, the history. We describe what the government must prove, where the proof is likely to fail, and what the exposure looks like if it does not.

A first call to this office costs nothing and assumes nothing. It is the beginning of an assessment that will determine whether the government’s case can withstand the scrutiny it has not yet received.