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If you are convicted of a felony in the United States, you automatically lose a number of valuable rights: the right to vote, the right to sit on a jury, and the right to bear arms.
In Texas, that last one is especially hard for some to accept. We love our guns in the Lone Star State, and many people don’t want to give them up after a felony conviction. The problem is, it’s a federal crime if you don’t. In this article, we are going to discuss the federal crime and consequences of being a felon in possession of a firearm, and how our team defends federal felon with firearms charges.
Under federal law, specifically 18 USC 922(g), it is illegal for a person with a felony conviction to carry or possess a gun of any kind. This offense is referred to as a Felon in Possession of Firearm, or a FPF charge. They are also called felony gun cases. Possession of gun suppressors, or “silencers,” and other explosive materials are also outlawed under the same section.
The purpose and aim of this statute is fairly clear. Congress, as well as the United States Sentencing Commission, believes that felons have a lower capacity to use guns responsibly and their possession of guns represents a heightened threat to public safety. This statute is used often in federal courts.
A federal conviction for being a felon in possession of a firearm is punishable by up to 10 years in prison and a $250,000 fine.
Any offense that carries more than one year of potential incarceration, regardless of whether it’s a state or federal crime, qualifies as a felony for FPF cases. For example, burglary of a building is a state jail offense in Texas that carries imprisonment of up to two years in a state jail facility. Since it is classified in Texas as a felony and carries a potential of more than one year imprisonment, this offense would qualify as an underlying felony for an FPF case.
Alternatively, many states outlaw making terroristic threats, which are threats of serious harm without an accompanying weapon being present. In many states, these crimes are treated as misdemeanors. They often don’t carry a year imprisonment range and are not considered felonies in their state of prosecution. A conviction for this type of offense would not qualify as an underlying conviction for an FPF case.
Underlying felonies in FPF cases are also sometimes referred to as ‘predicate felony.’ It should be noted that 922(g) does not require a particular state to characterize an offense as a felony for it to be a viable predicate in FPF cases. However, most states reserve the term felony for offenses that carry a potential of more than one-year imprisonment, just as federal law does.
In addition to prohibiting convicted felons from possessing firearms, federal law also applies to people who have no prior felony conviction. Federal law lists nine scenarios under which a person is prohibited from possessing, shipping/transporting, or receiving any firearm or ammunition:
Felon in Possession of a Firearm cases hinge on whether the predicate, or underlying felony, does in fact constitutes a legitimate basis for an FPF case. They also hinge on whether the Government can actually link the accused to the weapon. In other words, the extent and manner of the ‘possession’ of a given firearm is a critical factor in these cases. Attorneys representing individuals accused of these crimes must thoroughly examine offense reports made by federal agents, as well as whether the guns purported to be possessed by accused persons were identified and/or seized legally. Our team will thoroughly discuss the case facts with our clients and scrutinize offense reports and case discovery records. We will then develop a defense strategy to produce the most favorable outcome possible.
Typically, FPF offenses are viable for prosecutors with the presence of only one felony conviction. However, it also critically important to understand that some offenders can be characterized as “armed career criminals.” That is, if a person has multiple convictions for burglary, violent, or drug-related crimes, that person may face a higher mandatory sentence and a higher range of punishment. The Armed Career Criminal Act (“ACCA”) codified under 18 USC 924(e) sets out that persons with three separate convictions for ‘violent felonies’ and ‘serious drug offenses’ face a minimum 15 years imprisonment.
The applicable guideline is found under Section 2K2.1 of the United States Sentencing Guidelines. The number of firearms possessed and extent of criminal history are usually the largest drivers of the guideline calculation. Other factors that drive federal sentences for FPF cases relate to whether the possession was related to the trafficking of firearms and whether the firearm is capable of accepting a magazine with a large capacity.
Federal law is stricter than Texas law when it comes to possessing a firearm after being convicted of a felony. The biggest difference is that Texas allows felons to possess a firearm within their home five years after they complete their sentence. Federal law permanently prohibits possession of a firearm.
As a result, state law conflicts with federal law. Even though convicted felons can lawfully possess a firearm in their home under Texas law in limited circumstances, they can still technically be charged and convicted under federal law. Under federal law, felons who have been convicted may never possess a firearm. The current federal policy is to defer to state law on this issue, so it is unlikely that a defendant would be federally prosecuted if they are abiding by state law, but it is still worth considering.
Each year, the U.S. Sentencing Commission releases statistics about felon in possession of a firearm cases. Consider these stats for 2020:
If you or a loved one has been arrested on a federal charge of being a felon in possession of a firearm, it’s imperative to contact a skilled federal attorney as soon as possible. This is a very serious charge that can carry a lengthy prison sentences and steep fines. Call for a free consultation with experienced, aggressive attorney (817) 203-2220.
