Federal Felon in Possession of a Firearm Charges in Philadelphia, PA and NJ | Philadelphia Criminal Defense Lawyers for Federal Gun Charges

Federal law imposes severe penalties for the unlawful possession of a firearm by a felon or prohibited person. Recently, prosecutors in the Eastern District of Pennsylvania have begun filing more and more of these cases which would traditionally be handled in state court by local prosecutors. Because federal law imposes severe mandatory minimum prison sentences if you are convicted of illegally possessing a firearm, it is critical that you obtain the best possible criminal defense representation if you are facing charges in federal court.

Although federal firearms offenses are extremely serious and can carry significant consequences, there are often defenses to these charges. Our award-winning Philadelphia criminal defense lawyers have defended hundreds of clients in cases involving serious gun charges in state and federal courts throughout Pennsylvania and New Jersey. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an award-winning federal gun charges defense attorney today.

What is possession by a prohibited person?

18 U.S.C. § 922(g) makes it illegal for any person listed in §§ 922(g)(1)-(9) to possess a firearm. This list includes convicted felons (with qualifying convictions in both state and federal courts), drug addicts, illegal aliens, and others, from shipping, transporting, receiving, or possessing any firearm or ammunition in or affecting interstate commerce. This statute is generally referred to as the “felon in possession of a firearm” law, and it appears at 18 U.S.C. § 922(g)(1). In order to obtain a conviction for a violation of this statute, federal prosecutors must show that 1) the defendant possessed a firearm as defined by the statute, 2) the defendant was prohibited from possessing a firearm at the time, 3) the defendant knew he or she could not possess a firearm due to the prior conviction or some other disqualification, and 4) the firearm was in or affected interstate commerce.

Who cannot possess a firearm under federal law?

This statute most commonly applies to people who have been convicted of felonies as defined by federal law. In general, the statute defines a felon as someone who has been convicted in any court of a crime with a penalty exceeding one year. This means that if you have only been convicted of a misdemeanor of the third degree in Pennsylvania, you would not qualify as a felon under federal law because a misdemeanor of the third degree is punishable by only one year in prison. In addition, there is an exception for state crimes punishable by up to two years where the state has designated those crimes as misdemeanor offenses. Thus, many misdemeanors of the second degree in Pennsylvania also would not provide a bar on gun ownership. However, domestic violence misdemeanors could still trigger the bar even if the the misdemeanor was only punishable by one or two years.

Federal law also prohibits drug users and addicts, fugitives from justice, people who have been committed to mental institutions, defendants with domestic violence convictions, and others from possession of a firearm. Specifically, you may not possess a gun under federal law if you are a 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.

If you fall under any of these categories and have not had your rights restored, then you are not eligible to possess a gun. Doing so could result in prosecution in state or federal court in Philadelphia and serious consequences.

What is the definition of a firearm in federal court?

Most federal statutes use the standard definition of a firearm as provided in 18 U.S.C. Sec. 921(a)(3). Under this definition, a firearm is:

A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projective by the action of an explosive;

B) the frame or receiver of such a weapon;

C) any firearm muffler or firearm silencer; or

D) any destructive device.

This definition does not include antique firearms, which are firearms made in or before 1898. This is called the antique exception. There are other definitions of firearm which could apply certain statutes, but the other definitions generally apply when guns are referred to in the tax code and are less commonly charged.

What if the gun is broken?

In general, the statute does not require that the firearm actually work. In other words, it does not have to be operational or loaded in order to trigger criminal liability under 18 U.S.C. Sec. 921. This is because federal courts have held that even where a gun is broken, the weapon continues to be “designed” to fire a projectile. Additionally, the definition includes the frame or receiver of the weapon instead of just the weapon itself. Even where a gun is broken, it will still typically have a frame or receiver.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives’ regulations define a “frame or receiver” as “the part of a firearm which provides housing for the hammer, bolt, or breechblock and firing mechanism, which is usually threaded at its forward position to receive the barrel.” It is important to note, however, that there could be a situation in which the receiver or frame of a gun has been damaged or altered to such an extent that it is no longer designed to fire a projective. At that point, the significant damage to the frame or receiver could provide a defense to federal firearms charges. Additionally, possession of a destructive weapon charges generally do require that the weapon be operational or that the defendant would have the ability and parts necessary to make the weapon operational.

Unfortunately, it is simply usually not a defense that the gun was broken to felon in possession charges in either the Eastern District of Pennsylvania or Philadelphia. It is, however, a potential defense to possession of a concealed weapon without a permit charges (VUFA Sec. 6106) in state court.

What is the sentence for a federal prohibited person in possession of a firearm conviction?

Federal law provides devastating mandatory minimums for the possession of a gun by a prohibited person where the person has certain qualifying convictions under the Armed Career Criminal Act. An ordinary violation of Section 922(g) can lead to a maximum prison sentence of ten years, which is actually less than what a person could be facing in state court in Pennsylvania. Under the Armed Career Criminal Act, however, the penalties can quickly get worse. For example, a defendant could face a mandatory minimum fifteen year sentence if or he or she has three previous felony convictions for serious drug offenses or violent crimes as defined in 18 U.S.C. § 924(e)(1).

Because the federal government is more likely to prosecute someone who has a significant prior record or is allegedly part of a criminal organization, it is relatively rare that they would prosecute someone who is not facing the mandatory minimum due to a prior record. It is also relatively easy to obtain the qualifying convictions that would trigger the 15-year mandatory minimum because a conviction for Possession with the Intent to Deliver of many substances would qualify as a serious drug felony.

How do federal gun charges differ from state court gun charges?

There are three big differences between state and federal prohibited person charges in Pennsylvania. First, federal charges carry significant mandatory minimums that do not exist in state court if the defendant qualifies as an Armed Career Criminal. This means that a defendant charged with possessing a gun as a prohibited person could be facing significantly more time in prison than the defendant would be facing for the corresponding Pennsylvania VUFA charge. The sentencing guidelines can also call for significant prison sentences, and federal judges tend to take the guidelines more seriously than state court judges. In Pennsylvania state court, judges also impose sentences based on the state sentencing guidelines, but it is not uncommon for judges to depart from the guidelines. Although the guidelines often call for a significant amount of time in jail for a VUFA 6105 conviction, the judge can depart from the guidelines, and prosecutors are often willing to make reasonable offers. In federal court, however, the judge cannot go below the applicable mandatory minimum.

Second, federal case law is often different from Pennsylvania case law on many search and seizure issues. Therefore, it is important that you speak with experienced federal criminal defense counsel if you are under investigation or facing charges for the unlawful possession of a firearm.

Third, the procedures in federal court are very different from those in state court. State court is much more informal and court-date driven, and the cases proceed in a very different manner. State court cases begin with a preliminary hearing and it is relatively uncommon to waive the hearing, while most federal cases begin with either an arrest by complaint or grand jury indictment, in which case there may not be a right to a preliminary hearing. It is important to speak with counsel with experience in federal court matters because there are significant differences in the procedural rules in state and federal court.

What are the defenses to possession of a firearm by a prohibited person in federal court?

There are a number of potential defenses to possession of a firearm by a prohibited person in federal court. The defenses vary in each case depending on the allegations and the evidence against the defendant. Potential defenses to these charges could include:

1. Whether the gun recovered by the police or agents qualifies as a firearm;

2. Whether the defendant is actually prohibited from possessing a firearm. For example, only certain offenses trigger the bar on gun possession, and some require that the defendant actually had notice and was represented by counsel when they were convicted. Likewise, a conviction that has been expunged, pardoned, or otherwise set aside may not qualify. It is also possible that prosecutors have relied on incorrect court paperwork which does not accurately reflect the charges for which a defendant was found guilty.

3. Whether the police or federal agents recovered the gun in a lawful manner. If police or federal agents violated the defendant’s constitutional rights by conducting an illegal search, seizure, or interrogation, that could be the basis for having the gun suppressed and the charges dismissed.

4. Whether the defendant actually possessed the firearm. In order to show that a defendant possessed a firearm, prosecutors must be able to show either actual or constructive possession. Actual possession is easier to understand as that would generally involve the defendant physically having the gun on his or her person. Constructive possession is a more complicated idea which applies when a gun is found not actually on the defendant. In that type of case, prosecutors would have to show from the circumstances that the gun actually belonged to the defendant even though it was not physically on him or her. For example, prosecutors could use statements, forensic DNA or fingerprint testing, a defendant’s nervousness, or proximity to the weapon to make this showing. It is important to note, however, that mere proximity to contraband is not always enough to show constructive possession. Instead, prosecutors must prove the intent and ability to control the weapon beyond a reasonable doubt in order to prove constructive possession. In many cases, it also may be possible to challenge the credibility of the officers or agents who found the gun and show the judge or jury that they are not telling the truth.

5. Whether the firearm was used or transported in interstate commerce. If the recovered firearm was manufactured and possessed in one state without ever leaving that state, it may not be possible for prosecutors to obtain a conviction.

6. Self-defense or justification. - even a prohibited person may be able to raise a defense of self-defense to these charges if the person was 1) under an unlawful, present, imminent, and impending threat of death or serious bodily injury, 2) the defendant did not put himself in that position, 3) the defendant had no reasonable legal alternative to violating the law, and 4) there is a direct causal relationship between the criminal action taken and the avoidance of the threatened harm.

7. Whether the statute is constitutional. Recent case law has called the constitutionality of the 922(g) statute into question. In New York State Rifle & Pistol Association, Inc. v. Bruen, the United States Supreme Court found that many potential firearms regulations are unconstitutional. Subsequently, in Range v. Attorney General, the United States Court of Appeals for the Third Circuit found that 922(g) is unconstitutional as applied to a person who was prohibited from possessing a firearm due to an old conviction for a nonviolent theft/fraud offense. Since Range, many federal courts, particularly in the Middle District of Pennsylvania, have begun to find that even serious, potentially violent convictions may not prohibit a person from possessing a firearm. Therefore, if you are charged with 922(g) and the predicate offense is old or potentially non-violent, you and your attorney should carefully evaluate whether to file a motion to dismiss on constitutionality grounds.

Given the serious consequences for a conviction in federal court, it is important to consider all of the evidence, all of the potential defenses, and the likelihood of success at trial or in a pre-trial motion to dismiss prior to deciding whether to go to trial or engage in negotiations with the prosecution. In some cases, the evidence may be strong, and it may make sense to focus on obtaining the best possible sentence. In others, it may be clear that police violated the defendant’s rights through an illegal search, and the better route may be to file a motion to suppress the gun. Our experienced and understanding defense attorneys have the skill and expertise necessary to properly advise and defend you or your loved one.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in state and federal courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Possession with the Intent to Deliver, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

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