Felon in Possession of a Firearm
18 U.S.C. 922(g)
In the United States, it is a crime for a convicted felon to own, carry, possess or otherwise control a firearm. Additionally, it is a crime to possess ammunition, even if no firearm is present. The consequences of violating this provision of the law can be devastating, and in some circumstances carry significant minimum mandatory penalties. As a result, it is important to understand the rules and regulations as they apply to firearm possession by previously convicted felons. In addition to the prohibition against felons possessing firearms, other classes of individuals cannot possess firearms including illegal aliens and individuals convicted of domestic violence offenses.
The Henry Law Firm PLLC has effectively represented individuals charged with or being investigated for firearm possession. We have defended individuals in cases involving actual possession of firearms, constructive possession of firearms and armed career criminals. We have successfully argued against minimum mandatory sentences, and avoided charges altogether in some instances. We have also assisted individuals on appeal from firearms convictions obtain reversals in their cases.
18 USC 922(g)(1) says:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
What is a Felon?
By definition, a felon is simply a person who has been convicted of a crime that carries a penalty of more than one year in prison. The individual need not have actually served more than one year in jail. Under federal law it does not matter whether a state court classifies the offense as a misdemeanor. The only factor is the amount of potential prison time the individual faces.
What does “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce” mean?
In most firearm cases under 18 U.S.C. 922(g) the interstate commerce prong is met if the firearm charged was manufactured in a state other than the state where the charges a brought. Interstate commerce can be basically defined as having crossed state lines. There are a limited number of firearm manufacturers in the United States. So, it is common for a firearm to have been manufactured in a state different from the state where charges are pending. Therefore, for the gun to be in that state it must have crossed from one state to another meeting the interstate commerce prong.
To satisfy interstate commerce requirement of statute prohibiting possession of ammunition by a convicted felon, the government need only make a minimal showing that the ammunition in question was in or affecting interstate commerce.United States v. Danielson, 199 F.3d 666 (2d Cir. 1999)
In addition to actual possession, the law recognizes the concept of constructive possession. Constructive possession occurs when a person exercises control over an object even if it is not physically on their person. An example is a firearm may be in constructive possession of a rear passenger in a car when the gun is located in the glove compartment. Constructive possession of a firearm by a felon is a violation of the law and is a very fact specific determination.
Constructive possession of firearm exists, for purposes of determining whether defendant was felon in possession of a firearm shipped in interstate commerce, when defendant has the power and intention to exercise dominion and control over an object, and constructive possession may be shown by direct or circumstantial evidence.United States v. Payton, 159 F.3d 49 (2d Cir. 1998)
922(g)(1) makes it a crime to possess ammunition. It is a violation of the law to possess ammunition alone. There is no requirement for a firearm to be present.
Armed Career Criminal Act – 18 U.S.C. 924(e)
If you are convicted of a violation of 922(g) and have a criminal history you may be subject to a 15-year mandatory minimum sentence if you have 3 prior felony conviction for drugs or violence. This law is called the Armed Career Criminal Act (ACCA). 924(e) says:
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
While the definition of a serious drug offense is not subject to significant litigation at this point, the definition of a violent felony is very much in flux. The United States Supreme Court ruled in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act was constitutionally vague. The residual clause controlled a portion of the definition of what constitutes a violent felony. And a result, many offenses that would have been previously considered violent are not. This can make the difference in many years in prison as the maximum penalty under 922(g) is 10 years versus the mandatory minimum sentence of 15 years under ACCA.
How Can We Help
The Henry Law Firm PLLC has represented individuals charged with violations of 922(g) and 924(e) at the trial and appellate level. We know how to attack fingerprint evidence, DNA evidence, interstate commerce issues and prior conviction records. We have successfully avoided charges, reduced charges and overturned convictions on appeal. We are dedicated to vigorously defending its clients facing firearm charges. Call the Henry Law Firm PLLC at 646-820-0224 to learn how our experience can help you.
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