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Felon in Posession of a Firearm

Possession of a Firearm by a Felon – 18 U.S.C. § 922(g)(1)

Possession of a firearm by a prohibited person is a federal crime charged under 18 U.S.C. § 922(g). The crime is punishable by up to 10 years in federal prison. It applies to both firearms and ammunition. This charge is commonly referred to as felon in possession, although it may be applied to people who have no prior felony conviction.

A “prohibited person” means the crime is applicable to any of the following person:

  • Convicted felon,
  • Fugitive,
  • Drug addict,
  • Suffers from a mental defect or has been committed to a mental institution,
  • A person in the United States illegally,
  • Been discharged from the Armed Forces under dishonorable conditions,
  • Denounced their U.S. citizenship,
  • Subject to a court order – e.g., restraining order,
  • A misdemeanor crime of domestic violence.[1]

This crime is also punishable at the state level. Accordingly, it is not uncommon to be charged with the same firearm offense in California state and federal court.

Possessing a firearm or ammunition is a federal crime for someone has a felony conviction

What is the Government Required to Prove?

In order to be convicted of felon in possession of a firearm, the prosecutor must prove the following elements beyond a reasonable doubt:

  1. You knowingly possessed a firearm or ammunition;
  2. The firearm or ammunition had been shipped or transported from one state to another or between a foreign nation and the United States;
  3. At the time you possessed the firearm or ammunition, you knew you had been convicted of a crime punishable by imprisonment for a term exceeding one year.[2]

What is the Punishment for Felon in Possession of a Firearm?

18 U.S.C. § 922(g)(1) is punishable by:

  • Up to 10 years in federal prison
  • 3 years of supervised release
  • Fine up to $250,000

However, you may be subjected to a mandatory minimum sentence of 15 years if you have three (3) or more prior convictions for:

  • Violent felony[3], and/or
  • Serious drug[4]

Other collateral consequences may include:

  • Federal felony conviction on your record for life
  • Life time prohibition from owning or possessing a firearm
  • Adverse immigration consequences for non U.S. citizens
  • Suspension or revocation of a professional license
  • Forfeiture in the firearm[5]

What are the Legal Defenses?

Justification

You may be justified in possessing a firearm if it was necessary to prevent a greater wrong. To succeed on this defense, you must prove:

  1. You were under present threat of death or serious bodily injury;
  2. You did not recklessly place yourself in a situation where you would be forced to engage in criminal conduct;
  3. You did not have reasonable legal alternatives;
  4. There was a direct causal relationship between the criminal activity and the avoidance of the threatened harm.[6

Possession

The prosecution may prove possession by showing you had actual or constructive possession of the firearm. Moreover, constructive possession requires you to exercise dominion and control over the firearm.[7] Whether a person has a right to exercise control over a firearm is usually analyzed on a case by case basis. Furthermore, mere presence at a location, without more, is insufficient to attribute firearm possession.

Knowledge

The government must prove that you consciously and knowingly possessed a firearm.[8] There may be situations where you had no knowledge of the firearms' presence – e.g., someone left a firearm in your vehicle or an overnight guest left a firearm in your guest bedroom.

Unlawful Search

In many instances, law enforcement discover a firearm in your home, vehicle, or on your person. The reason for the detention or the search will be a pivotal issue. If a constitutional technicality is discovered via unlawful search or detention, then the firearm will be excluded and the prosecution will be unable to proceed with their case.

Examples of Felon in Possession of a Firearm

  • Your wife keeps a firearm in the drawer of her nightstand that either of you will use in emergency situations. In this case, you would be charged with felon in possession since you are able to access or have control of the firearm at any time despite the firearm being kept in your wife's nightstand.
  • Your roommate holds firearm in a safe in the living room that you have a key to unlock. In this case, although you are not in actual possession of the firearm, you have dominion and control over the contents of the safe since you have a key to unlock it.
  • You kept your friends firearm in a locked container in the trunk of your car. Since you own the vehicle, then the law will hold you in possession of the firearm.
  • You keep a 1960's firearm, with no firing pin, on display above your fireplace that was used in the Vietnam war. Here, the law does not require that the firearm be operable. And since the firearm was manufactured in the 1960's, it will not constitute an antique thereby shielding you from criminal liability.

Call an Experienced Orange County Federal Criminal Defense Attorney

If the government has charged you with possession of a firearm as a convicted felon as a federal crime, then contact us today to schedule a free confidential consultation. Speak with an experienced and respected Los Angeles federal criminal defense attorney. Early intervention by an experienced lawyer can mean the difference of serving time in prison or having your case rejected entirely from prosecution. We are located in Orange County, but handle cases all over California including Santa Ana, Los Angeles, Riverside, San Diego, Fresno.

LEGAL FOOTNOTES

[1] See 18 U.S.C. § 922(g)(1)-(9) – (“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; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien— (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) who is subject to a court order that— (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) who has been convicted in any court of a misdemeanor crime of domestic violence, 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.”)

[2] See Ninth Circuit Model Criminal Jury Instruction 8.65 (2018) – Firearms – Unlawful Possession – Convicted Felon.

[3] See 18 U.S.C. § 924(e)(2)(B) – (“the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”)

[4] See 18 U.S.C. § 924(e)(2)(A)(i)-(ii) – (“the term “serious drug offense” means— (i) an offense 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 for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”)

[5] The government may move to seize the firearm under the firearm forfeiture statute 18 U.S.C. § 922(d).

[6] See Ninth Circuit Model Criminal Jury Instruction 8.65 (2018) – Firearms – Unlawful Possession – Defense of Justification.

[7] See United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001).

[8] See United States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003), cert. denied, 542 U.S. 921 (2004).

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