Federal Unlawful Possession of a Firearm
| North Dakota & Minnesota |
Criminal charges brought against you by the federal government for illegally possessing a firearm could have a negative impact on your freedom, future, and general well-being.
It is essential to have a thorough understanding of the legal ramifications of this crime. This blog article will examine the nuances of federal criminal charges for illegally possessing a firearm, offering insightful information about the judicial procedure and possible results – particularly for those fighting these charges in North Dakota and Minnesota.
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Federal Unlawful Possession of a Firearm
The charge of unlawful possession of a firearm in federal court generally refers to the illegal possession, receipt, or transport of a firearm or ammunition in violation of federal law.
This charge can apply to a larger variety of situations in contrast to the similar federal charge of felon in possession of a firearm. It includes individuals who are prohibited from possessing firearms under various federal and state statutes. Here are some key aspects of the federal charge of unlawful possession of a firearm:
Convicted Felons: Individuals who have been convicted of a felony offense in any jurisdiction, including state or federal courts, are generally prohibited from possessing firearms.
Persons Convicted of Misdemeanor Crimes of Domestic Violence: Federal law prohibits individuals convicted of state misdemeanor crimes of domestic violence from possessing firearms.
Persons Subject to Restraining Orders: Individuals who are subject to certain types of state restraining orders, such as those related to domestic violence, harassment, or stalking, may be prohibited from possessing firearms.
Persons with Certain Mental Health Conditions: Individuals who have been adjudicated as mentally ill, incompetent, or committed involuntarily to a mental institution may be barred from firearm possession.
What You Need to Know About Unlawful Possession Charges
As experienced federal criminal defense attorneys, we have represented many people who have been charged with unlawful possession of a firearm offenses. Over the years, we have encountered several misconceptions about these types of charges that we address in detail below:
Many individuals believe that they can only be charged under federal law if they cross state lines with a firearm. However, this is not the case. The federal statute 18 U.S.C. § 922(g) applies to anyone who fits within the category of an individual disqualified from firearm possession and is found in possession of a firearm, regardless of where the person currently resides or where the firearm is currently located.
People mistakenly believe that an individual can only be charged with unlawful possession if they knew they were in possession of the firearm. Not necessarily so. If you are not allowed to be in “possession,” and were found in possession of a firearm, you will most likely be charged with this crime. That doesn’t mean that you will be found guilty, however. To be found guilty, the prosecution must prove that the individual actually knew they were in possession of the firearm.
Another misunderstanding is that a person can only be charged if they used the firearm in the commission of a crime. This, too, is not the case. A person can be charged for being in unlawful possession of a firearm even if they did not use the firearm in the commission of a crime.
Finally, under federal law, it is illegal for anyone who falls under the prohibited person list to even be around a firearm, even if it is not theirs. An example of this would be if someone with a mental illness is found to be in a residence or vehicle where there is a firearm in close proximity to them - this is called “constructive possession.” Like the knowledge example above, you can obviously fight this charge that you constructively possessed the firearm. But the fact remains that federal prosecutors can and do charge people with illegal firearm possession even if they were not actually touching or holding the firearm at the time they were arrested.
What's The Difference Between a Felon in Possession of a firearm and unlawful possession of a firearm?
The differences between federal charges of "felon in possession of a firearm" and "unlawful possession of a firearm" revolves around the specific circumstances and legal elements involved in each charge.
The felon in possession of a firearm charge typically only applies to individuals who have been convicted of a state or federal felony in the past. The key element in this charge is the individual's prior felony conviction, which disqualifies them from gun possession under federal law.
By contrast, the unlawful possession charge covers a wider swath of individuals considered by the federal government as being unsafe in the possession of a firearm. This includes individuals with felony convictions, but also people convicted of committing domestic violence and those with mental health issues.
Can I be charged with both felon in possession and unlawful possession?
Individuals could potentially be charged with both of these crimes if their conduct satisfies the elements of both crimes. However, it is pretty unlikely, and usually federal prosecutors choose one crime or the other, not both.
For instance, if you are both a convicted felon found in possession of a firearm, and also are prohibited from possessing firearms for reasons other than a felony conviction (domestic violence offenses or mental health issues), you could in theory be charged with both crimes. But again, in reality, the chances of this happening are slim.
Unlawful Possession vs. 924(c)
A federal "unlawful possession of a firearm" charge and a charge under 18 U.S.C. § 924(c) are related but distinct federal firearm charges, each with its own elements and implications. Here are the key differences between the two:
Unlawful possession can apply in various situations, including individuals who are prohibited from possessing firearms due to prior felony convictions, misdemeanor domestic violence convictions, restraining orders, mental health disqualifications, and other federal prohibitions.
In contrast to a 924(c) charge, the unlawful possession charge does not require the commission of another crime, as mere possession of a firearm by a prohibited person is enough to result in this charge.
A charge under 18 U.S.C. § 924(c) (Firearms Offense During a Crime of Violence or Drug Trafficking Crime) requires the individual to be possessing, brandishing, or using a firearm while committing a crime of violence or a drug trafficking offense.
If a person is convicted under 924(c), they will face a mandatory minimum sentence of 5, 7, or 10 years in addition to any sentence imposed for the underlying offense like drug trafficking, assault, etc.
This mandatory enhancement may increase even more if the firearm in question is a machine gun or if the defendant has a prior conviction for a similar offense.
Elements of Felon in Possession Charges
To prove that an individual is guilty of the federal crime of being a felon in possession of a firearm, the government must prove the following elements beyond a reasonable doubt:
Possession of a Firearm: The prosecution must demonstrate that the defendant knowingly and intentionally possessed a firearm. "Possession" can be actual or constructive, meaning the defendant had physical control over the firearm or had the power and intention to exercise control over it.
Actual possession refers to when an individual has physical control over the firearm, such as when it is on their person or in their immediate vicinity (like in their backpack). Constructive possession, on the other hand, refers to when an individual has the power and intent to control a firearm, even if it is not physically in their immediate possession. For example, if a firearm is found in the glovebox of a car that an individual is driving, they may be considered to be in constructive possession of the firearm even if they are not physically holding it at the time of arrest.Knowledge of Prohibition: The government must prove that the defendant was aware or knew that they were prohibited from possessing firearms under federal law. This could be due to a prior domestic violence conviction, a restraining order, a mental health disqualification, or another applicable federal prohibition. Note this element used to be assumed and easily provable, but it has had life breathed back into it after the U.S. Supreme Court’s decision in Rehaif v. United States. Now, many more people are winning at trial by making the argument they are not guilty because they didn’t know they were prohibited from possessing firearms.
Interstate or Foreign Commerce Nexus: Generally, the firearm or ammunition involved must have traveled in interstate or foreign commerce at some point. Federal jurisdiction is often based on the "interstate commerce clause" of the U.S. Constitution, which grants the federal government authority to regulate certain activities, including firearms, that affect interstate commerce. While this sounds like a good possible defense, in practice, almost every firearm made in the U.S. has parts made in different states, which means in order for the gun to be manufactured, it necessarily had to travel through interstate commerce. So unless you live in a state that makes firearms and all the components within its borders, this element is almost always easily proved.
Federal Law Violation: The defendant must be shown to have violated a specific federal law or regulation governing firearm possession. The applicable federal statute or regulation will depend on the individual's specific circumstances and the reason they are prohibited from possessing firearms under federal law. In other words, if the government is claiming that you cannot possess a firearm because of a past domestic violence conviction, they must prove you actually have that conviction. They do this by entering the records related to your conviction in the record, or having someone from the case come and testify to the fact that you were in fact conviction of the domestic violence crime.
Case Story: Winning a Federal Felon in Possession Case
Unlawful Possession of a Firearm Penalties
Federal firearm laws and sentencing guidelines can be complex, and the penalties can differ widely based on a number of factors. In some cases, federal laws have mandatory minimum sentences, meaning that a convicted individual must serve a specified minimum term of imprisonment. These mandatory minimums can vary depending on the nature of the offense and the defendant’s criminal history.
The penalty for this charge can depend on the type of gun you are found with, whether the gun was stolen, and your criminal history.
In laymen’s terms: the scarier the gun, the higher penalty you will likely face. There are other aggravating factors that can also contribute to a larger penalty. For instance, if the gun was stolen or if the serial number has been filed off, that results in a longer prison sentence.
Likewise, if you have a significant criminal history, you will likely face a longer punishment.
How much Time will I face for an Unlawful Possession Charge?
Normally, a standard federal unlawful possession of a firearm conviction results in 3-6 years of prison time. The statutory maximum, meaning the most time you could do, is 10 years.
In our extensive experience practicing in the District of North Dakota, most clients we see are sentenced to 3-4 years in prison for a stand-alone unlawful possession conviction.
Defense Strategies
As your criminal defense attorney, there are a number of defense strategies that can be employed to fight the federal charge of unlawful possession.
One such strategy is to challenge the government's evidence and question the legality of the search that led to the discovery of the firearm. This is the exact strategy we used in our felon in possession case story.
If the government obtained the firearm through an illegal search, the evidence may be suppressed. For instance, if the gun was found by the law enforcement officer illegally extending a traffic stop, the evidence they found as a result of extending stop may be unusable in your case. This thus makes it difficult (and often impossible) for the prosecution to prove their case. After all, if there is no gun how can you be found to be illegally possessing a gun?
Additionally, if the defendant was not aware that the firearm was in their possession, this could be used as a defense. This defense is particularly effective if the defendant can prove that the firearm belonged to someone else or that they had no knowledge of its presence.
Finally, as noted above, seasoned criminal defense lawyers are now using the “Rehaif defense” more often in these cases. That defense is that the person did not know they had a crime or conviction that prohibited them from possession a firearm. So, for example, if a person with mental health issues is never told that those issues make it so that he cannot possess a firearm, then he may have a defense if he is later charged with illegal firearm possession. The idea is notice. If the person does not know they cannot do something, then they cannot be found guilty of doing the thing. This defense is having lots of success in federal jurisdctions around the country, and the lawyers in our firm have had success litigating it too.
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