FEDERAL CRIMES
Possession of Firearm Defense Lawyer – 18 U.S.C. 924
A Summary of Federal Firearm and Gun Possession Crimes & Laws
According to the United States Sentencing Commission (USSC), there were over 10,000 federal firearm convictions in fiscal year 2019 alone.
This number has increased steadily over the last five years. Additionally, among all types of federal crime, firearm offenses and charges have been consistently amongst those with the highest rearrest rate for offenders. On the global stage, the United States drastically outpaces every other First World nation in gun-related homicides, a trend that has fueled the call for expansion of federal firearm criminal statutes and the increased investigation and prosecution of alleged offenders.
The Federal Bureau of Investigation (FBI), one of the federal law enforcement agencies responsible for investigating alleged firearm offenses, reports that through recent efforts to bolster violent crime initiatives, the Department of Justice (DOJ) has charged the largest number of violent crime offenders since it started keeping records of this category of crime over 25 years ago. The number of federal firearm prosecutions specifically has increased by 43 percent over the last three years.
One recent initiative is Operation Legend, launched in July 2020. Operation Legend formalized the partnership between federal law enforcement agencies and state and local law enforcement in the fight against violent crime. Originally established in Kansas City, Missouri, Operation Legend has now expanded to Chicago, Albuquerque, Cleveland, Detroit and other major cities throughout the US. As of December 2020, over 6,000 arrests have been made and over 2,600 firearms seized. Confidence in the ongoing effectiveness of Operation Legend stimulates support from a variety of organizations—The Office of Community Oriented Policing Services (COPS Office) provided $60 million to fund 290 officers working as part of the Operation and The Office of Justice Programs (OJP) awarded nearly $9 million in grant support. The growing membership of the Operation and the increase in funding support from various agencies is likely to expand the reach and urgency of the investigation and prosecution of alleged firearm and other violent crime offenders.
Under what statutes does the federal government charge alleged offenders of gun possession?
Under the NFA (26 U.S.C. § 5845(a)), “firearm” means any short-barreled shotguns or rifles, machineguns, silencers, and destructive devices. This definition excludes antique and collector firearms that are not likely to be used as weapons. A “destructive device” is defined in § 5845(f) as any explosive or incendiary, any type of weapon which will expel a projectile by action of an explosive or propellant, and “any combination of parts either designed or intended for use in converting any device into a destructive device … and from which a destructive device may be readily assembled.”
Under the GCA (18 U.S.C. § 921(a)(3)), a “firearm” is any weapon which will, is designed to or can be converted to expel a projective by action of an explosive (including a starter gun), the frame or receiver of any such weapon, any firearm muffler or silencer or any destructive device. Similar to the NFA, the GCA definition excludes antique firearms. The GFA definition of “destructive device” is similar to that of the NFA.
What are the prohibited acts and what are the possible penalties for weapons violation?
To convict an alleged offender under either act, a federal prosecutor must prove each element of the charge beyond a reasonable doubt.
NFA
The NFA regulates the manufacture, sale and transfer of firearms. A few of the prohibited acts include:
26 U.S.C. § 5861(a)
Failure to pay tax or register
This section criminalizes engaging in business as a manufacturer or importer of, or dealer in, firearms without paying the required occupational tax, or without properly registering.
26 U.S.C. § 5861(d)
Possession of an unregistered firearm
Under this section, a defendant is criminally liable for receiving or possessing a firearm not registered in their name in the National Firearms Registration and Transfer Record. The defendant need not have known that the firearm was not registered or had to be registered.
26 U.S.C. § 5861(h)
Receipt or possession of a firearm with modified serial number
To convict an alleged offender under this section, a prosecutor must prove the defendant knowingly received or possessed a firearm that had a(n) obliterated, removed, changed or altered serial number, and the defendant knew that the serial number was obliterated, removed, changed or altered.
26 U.S.C. § 5861(j)
Transporting, delivering or receiving an unregistered firearm
A conviction under this section requires a prosecutor to prove the defendant transported, delivered or received a firearm in interstate commerce that had characteristics that required it to be registered in the National Firearms Registration and Transfer Record, the firearm was not registered accordingly and the defendant knew that the firearm had the characteristics necessitating registration.
Convicted defendants face penalties of up to ten years of prison and up to $10,000 in fines, or both. A firearm involved in any § 5861 violation is subject to seizure and forfeiture under § 5872.
GCA
The GCA criminalizes two general categories of firearm offenses—stand-alone possession offenses and gun control regulation offenses. A few of the most commonly charged sections include:
18 U.S.C. § 922(a)(1)(A)
Dealing in firearms without a license
Under this section it is a crime, without a federal license, to willfully engage in the business of dealing in firearms (by importing, manufacturing, or dealing), or shipping, transporting or receiving any firearm in interstate or foreign commerce.
To convict a defendant under § 922(a)(1)(A), the government does not need to show that the defendant’s business was profitable, only that it was their primary goal was profit and livelihood. However, proof of a profit motive is not required if the purpose of the defendant’s dealing with firearms was criminal or terroristic.
18 U.S.C. § 922(a)(3)
Transporting or receiving firearms in state of residence
To convict an alleged offender under this section, a federal prosecutor must show that the offender was not a licensed firearm importer, manufacturer, dealer or collector and transported into or received in the state where he resides (or, if the offender is a business entity, the state where it maintains a place of business) any firearm purchased or otherwise obtained by such a person (or business entity) outside the state.
18 U.S.C. § 922(g)(1)
“Felon-in-possession”
For a conviction under this section, a prosecutor must prove that the defendant was previously convicted of a felony—a crime punishable by imprisonment for more than one year—and knowingly possessed a firearm (or ammunition). It must also be shown that the defendant knew they were convicted of a felony at the time they possessed the firearm (or ammunition) and that the firearm crossed a state line prior to or during the alleged possession. Although most § 922(g) prosecutions are charged under (g)(1), other subsections apply to a defendant who was:
(2) a fugitive from justice
(3) an unlawful drug user, or addict
(4) mentally ill
(5) an alien unlawfully in the U.S.
(6) dishonorably discharged from the armed forces
(7) a person who renounced their U.S. citizenship
(8) subject to a domestic violence restraining order, or
(9) convicted of a misdemeanor crime of domestic violence.
18 U.S.C. § 922(j)
Possession or sale of a stolen firearm
This section criminalizes the knowing possession or sale of a stolen firearm. The firearm must have been moved across a state line and the defendant must have known or had reasonable cause to believe the firearm was stolen.
Defendants convicted of a § 922(a)(1)(A) or § 922(a)(3) offense face penalties of up to five years in prison, up to $250,000 in fines, or both. For convictions under § 922(g)(1) or § 922(j), defendants face up to ten years in prison, up to $250,000 in fines, or both.
The Armed Career Criminal Act (ACCA) imposes a minimum sentence of fifteen years for § 922(g) convictions if the defendant has three previous convictions for a violent felony, a serious drug offense, or both.
18 U.S.C. § 924(c)
Using a firearm during, or in furtherance of a violent or drug trafficking crime
To convict a defendant under this section, a federal prosecutor must prove the defendant committed a violent or drug trafficking crime and, during the commission, or in furtherance of this crime, knowingly used or carried a firearm.
Probation is not available for defendants convicted of a § 924(c) offense, who face base penalties up to five years in prison. A convicted defendant’s sentence may be enhanced, or increased, if:
the firearm:
- is brandished (i.e., show to another to intimidate), the minimum sentence jumps to seven years
- is discharged (even accidentally), the minimum sentence increases to ten years
- is a short-barreled rifle or shotgun, or semiautomatic assault weapon, the minimum sentence is ten years
- is a machinegun or a destructive device, or is equipped with a firearm silencer or muffler, the minimum sentence is also ten years
the defendant:
- uses or carries armor piercing ammunition, or in furtherance of a crime, possesses armor piercing ammunition, the minimum sentence increases to fifteen years
- has a prior § 924(c) conviction, the defendant faces a mandatory twenty-five year’s imprisonment, or life in prison if the firearm used was a machinegun or a destructive device or was equipped with a silencer or muffler.
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