Criminal Defense Lawyers

Federal Gun Charges for Prohibited Person

You don’t have to pull a trigger. You don’t have to fire a shot. You don’t even have to touch a gun. If you’re a “prohibited person” under federal law and a firearm is found somewhere you had access to it, that’s a federal felony. Ten years in prison. No shots fired. No victim. Just proximity to a weapon you weren’t allowed to be near. That’s how 18 U.S.C. § 922(g) works, and it sends over 8,000 people to federal prison every year.

Welcome to Spodek Law Group. We put this information on our website because most people have no idea they’re prohibited from possessing firearms until they’re already in handcuffs. They thought that old conviction didn’t count anymore. They thought state law restored their rights. They thought marijuana was legal now. They were wrong about all of it, and now they’re facing years in federal prison. Our goal is to make sure you understand exactly what you’re up against before it’s too late.

The federal government has identified nine specific categories of people who cannot legally possess firearms or ammunition. If you fall into any of these categories, simply being in the same car as a gun – even someone else’s gun – can result in federal charges. And federal prosecutors pursue these cases aggressively because they’re relatively easy to prove and carry serious sentences.

Nine Ways to Become a “Prohibited Person” (And You Might Already Be One)

Federal law under 18 U.S.C. § 922(g) makes it illegal for nine categories of people to ship, transport, receive, or possess firearms or ammunition. Heres the complete list, and some of these will surprise you.

First, convicted felons. If youve been convicted of any crime punishable by imprisonment for more than one year, your done. It dosent matter if you actually served time. It dosent matter if you got probation. The potential sentence is what counts, not what you actually received.

Second, fugitives from justice. If theres an active warrant for your arrest or youve fled to avoid prosecution, your prohibited.

Third – and this is were it gets interesting – unlawful users of controlled substances. That includes marijuana. Heres the thing nobody explains: marijuana is still a Schedule I controlled substance under federal law. It dosent matter that your state legalized it. It dosent matter that you have a medical card. If you use marijuana and possess a firearm, your committing a federal felony. Period.

Fourth, anyone whos been committed to a mental institution or adjudicated as mentally defective.

Fifth, illegal aliens and certain non-immigrant visa holders. If your in the country illegally or on a temporary visa, you cant possess firearms.

Sixth, anyone dishonorably discharged from the U.S. military.

Seventh, anyone whos renounced U.S. citizenship.

Eighth, anyone subject to a qualifying domestic violence restraining order.

Ninth, anyone convicted of a misdemeanor crime of domestic violence. Read that again. A misdemeanor. Not a felony. A misdemeanor domestic violence conviction permanently strips your gun rights under federal law.

And theres one more category that catches people off guard. Under 18 U.S.C. § 922(n), if your currently under indictment for a crime punishable by more than one year, you cant recieve firearms or ammunition. You havent been convicted of anything yet. Your still presumed innocent. But the indictment itself makes you prohibited.

You Don’t Have to Touch the Gun – Constructive Possession Explained

OK so heres were federal gun law gets genuinely terrifying. You dont have to be holding a gun to be charged with possessing it. Under the doctrine of “constructive possession,” prosecutors only need to prove two things: you knew the gun was there, and you had the ability to control it.

Think about what that means in practical terms. Your riding in a car. Theres a gun under the front seat. You didnt put it there. You dont own it. But if prosecutors can prove you knew about it and could have reached it, thats constructive possession. Thats a federal felony. Thats up to 10 years in prison.

Heres an example that should scare you. Five people are in a car when police find a gun under the seat. ALL FIVE can be charged with constructive possession. The jury gets instructed that they can infer possession from proximity and access. “It wasnt my gun” is not a defense when you knew it was there and could have grabbed it.

It gets worse. Say your a convicted felon living with a spouse who legally owns firearms. If those guns are accessible to you – not locked in a safe you dont have access to – prosecutors can argue constructive possession. Your spouse’s legal gun ownership becomes your federal felony.

Living in a house with guns you dont own can make you a federal defendant if your a prohibited person. The guns dont have to be yours. They just have to be accessible. If your roommate keeps a pistol in the living room and you know about it, you could be charged with constructive possession.

The defenses to constructive possession are limited. You can argue you didnt know the gun existed. You can argue you didnt have the ability to control it – maybe it was in a locked safe you didnt have access to. But proximity plus knowledge usually equals conviction.

What Prosecutors Actually Have to Prove

In 2019, the Supreme Court decided Rehaif v. United States and changed how these cases work. The Court held that prosecutors must prove the defendant knew they belonged to a prohibited category. Its not enough to prove you possessed a gun – they have to prove you knew you were prohibited from possessing one.

Sounds like a defense, right? “I didnt know I couldnt have guns.” Heres the reality. If you have a prior felony conviction, prosecutors argue that conviction proves you knew. You went through a criminal proceeding. You were sentenced. You knew you were a felon. And felons are prohibited. Therefore you knew.

The Rehaif decision created a technical requirement, but it rarely helps defendants in practice. Todd Spodek has seen prosecutors argue – successfully – that prior convictions inherently establish knowledge of prohibited status. You cant claim ignorance when theres a paper trail showing you went through the criminal justice system.

Where Rehaif occasionally helps is in cases involving less obvious prohibited categories. Maybe someone didnt realize there mental health commitment made them prohibited. Maybe someone didnt know a domestic violence conviction – especially if it was called something else on the state level – triggered federal firearms disabilities. These edge cases sometimes create genuine knowledge disputes.

But if your a convicted felon and you possessed a gun? Prosecutors will prove you knew. The conviction itself is the evidence.

The Armed Career Criminal Trap – When 10 Years Becomes 15

Heres something that transforms federal gun charges from serious to devastating. The Armed Career Criminal Act, codified at 18 U.S.C. § 924(e), is basicly a federal “three strikes” law for gun possession.

A standard 922(g) violation carries a maximum of 10 years in federal prison. Thats bad enough. But if you have three prior convictions for “violent felonies” or “serious drug offenses,” the Armed Career Criminal Act kicks in. Now your facing a 15-year MANDATORY MINIMUM. Not a maximum. A minimum. The average sentence for ACCA defendants is 206 months – over 17 years.

And heres the trap. What counts as a “violent felony” under ACCA is broader than you might think. Burglary counts. Attempted burglary counts. Arson counts. Certain drug distribution offenses count as “serious drug offenses.” You might have three qualifying convictions from decades ago that you barely remember, and suddenly your standard gun possession case becomes a 15-year minimum sentence.

The Supreme Court has narrowed ACCA in some ways. In Johnson v. United States, they struck down part of the law as unconstitutionally vague. In Borden, they ruled crimes with a mens rea of recklessness dont qualify as violent felonies. In Wooden, they ruled multiple convictions from the same “occasion” count as only one strike.

But ACCA still applies broadly, and prosecutors actively look for qualifying priors. If you have a criminal history and your charged with felon in possession, one of the first things the government does is examine your record for ACCA triggers. Three strikes from your past can turn a bad situation into a catastrophic one.

How These Cases Actually Start

Spodek Law Group sees these cases begin the same way over and over. Theres almost always a traffic stop involved.

Your driving. Maybe you have a broken taillight. Maybe you rolled through a stop sign. Police pull you over. During the stop, they see something – or smell something – that gives them probable cause to search. They find a gun. They run your name. Your record comes back.

Now your in handcuffs. Now your facing federal charges. All because of a minor traffic violation that led to a search that revealed a firearm you werent supposed to have.

Other common scenarios include domestic disputes. Police respond to a call. They see guns in the residence. They run the occupants records. Someone is prohibited. Someone gets charged.

Or probation and parole searches. If your on supervision, your residence can be searched. If a gun is found, even if it belongs to someone else you live with, constructive possession arguments begin.

The point is this: prohibited persons get caught with guns not because theyre committing gun crimes, but because other interactions with law enforcement reveal the guns existence. Once that happens, once police know your a prohibited person and theres a firearm you had access to, the case essentially builds itself.

The Numbers That Should Scare You

In fiscal year 2024, there were 7,419 federal convictions under 18 U.S.C. § 922(g). Out of roughly 61,000 federal criminal cases that year, firearms offenses were the third most common category. This isnt some obscure law thats rarely enforced. The federal government prosecutes these cases constantly.

The average sentence was 71 months. Nearly six years in federal prison. And remember – in the federal system, theres no parole. You serve at least 85% of your sentence. A 71-month sentence means youll do at least 60 months – five full years – before release.

Ninety percent of these cases involve felon-in-possession specifically. Thats the most common prohibited category by far. If you have a felony conviction and your caught with a gun, your exactley the person federal prosecutors target.

And they win. Federal prosecutors have conviction rates exceeding 90%. They dont bring cases they cant prove. By the time your charged, theyve already built there case. They have the gun. They have your record. They have witnesses or other evidence establishing possession. Fighting these charges at trial is possible but difficult.

Over 8,000 people go to federal prison every year for gun possession alone. No shots fired. No violence. Just being a prohibited person with access to a firearm.

The State vs Federal Trap – Why Your “Restored Rights” Don’t Matter

Heres something that destroys people who think there in the clear. Many states have processes to restore firearm rights after a felony conviction. You complete your sentence. You wait the required years. You file the paperwork. The state says your gun rights are restored. You go buy a firearm legally under state law.

Then the feds show up.

Federal law dosent care about state restoration of rights. Under 18 U.S.C. § 922(g), what matters is whether your conviction was for a crime punishable by more than one year. State expungements, pardons, and rights restorations have limited effect on federal prohibited status – and the rules are incredibly technical.

Some state restorations DO remove federal disabilities – but only if the state restoration “expressly provides” that you can possess firearms. If your state just generally restored your civil rights without specifically mentioning firearms, federal prosecutors will argue your still prohibited. Theyve made this argument successfully countless times.

Think about how cruel this is. You did everything right under state law. You waited the years. You filed the forms. Your state said your good. A gun store ran your background check and it came back clean because the STATE database showed you were eligible. You bought a gun thinking you were legal.

But NICS – the National Instant Criminal Background Check System – sometimes misses state restorations. Or the restoration dosent actually remove federal disabilities even though it removes state ones. Or theres a discrepancy between what the state thinks and what federal law actually provides.

Now your a federal defendant for a gun you thought you legally purchased.

Todd Spodek has seen clients in exactly this situation. They genuinely beleived there rights were restored. They passed a background check. They had documentation from the state. None of it mattered when federal prosecutors came knocking.

If you have a prior felony and your relying on state rights restoration to make you eligible to possess firearms, you need an attorney to verify that restoration actually removes federal disabilities – before you buy a gun, not after.

Defenses That Sometimes Work

So what can you actually do if your charged with being a prohibited person in possession?

First, challenge the possession itself. If prosecutors are relying on constructive possession, your attorney can argue you didnt know the gun was there or didnt have the ability to control it. Maybe the gun was in a locked area you couldnt access. Maybe someone else exclusively controlled it. These arguments dont always win, but they create reasonable doubt in some cases.

Second, challenge whether you actually fall into a prohibited category. The Rehaif decision requires prosecutors to prove you knew you were prohibited. If theres a genuine question about whether your prior conviction actually qualifies – some state offenses are ambiguous – your attorney can litigate that issue.

Third, constitutional challenges are evolving. In Range v. Attorney General, the Third Circuit found it unconstitutional to permanently ban Bryan Range from possessing firearms based on a food stamps fraud conviction. Range had no violent history whatsoever. The court said applying 922(g) to him violated the Second Amendment.

After the Supreme Courts decision in New York State Rifle & Pistol Association v. Bruen, courts are reevaluating whether categorical bans on gun possession survive constitutional scrutiny. The government has to show the regulation is “consistent with this Nations historical tradition of firearm regulation.” For some defendants with non-violent backgrounds, this creates new arguments.

But be realistic. If your a convicted felon with violent priors and you were caught with a gun, constitutional challenges probly wont save you. Courts have consistently upheld 922(g) as applied to people with violent criminal histories.

What Happens If Your Convicted

Federal prison for a 922(g) conviction is serious time in a serious environment. Your looking at years away from family, career destruction, and a federal felony on your record for life.

The sentencing guidelines under U.S.S.G. §2K2.1 give judges a base offense level between 12 and 26 depending on circumstances. Factors that increase your sentence include the type of weapon (certain guns carry higher levels), your criminal history, whether the gun was stolen, and whether it was possessed in connection with another offense.

If ACCA applies, your looking at 15 years minimum. No judge discretion below that. Prosecutors will argue for sentences at or above the mandatory minimum based on your history and the circumstances.

And the collateral consequences extend beyond prison. A federal conviction means your permanently prohibited from possessing firearms. Employment opportunities with a federal felony are limited. Professional licenses may be revoked. Immigration consequences can be severe if your not a citizen.

What To Do Right Now

If your a prohibited person and you currently have access to firearms – your own or someone elses in your residence – you need to address that situation immediatly. Continuing to live with accessible guns is continuing to commit a federal felony every single day.

If youve already been contacted by federal agents, if ATF or the FBI has come to your door with questions about firearms, stop talking. Dont explain. Dont try to clarify. Anything you say becomes evidence, and federal agents are trained to get incriminating statements before you realize you need a lawyer.

Call Spodek Law Group at 212-300-5196 before you answer any questions. The consultation is confidential. Todd Spodek has handled these cases for years and understands how federal prosecutors build them and what defenses actually work.

Your situation might be better then you think – or worse then you realize. The only way to know is to talk to an attorney who understands federal firearms law. Dont try to figure this out on your own. Dont assume your prior conviction dosent count. Dont assume state law protects you from federal prosecution.

Call us at 212-300-5196. The federal system moves fast, and the earlier you have representation, the better your options.