Federal Gun Charges

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Gun charges explainedGun charges

Facing federal weapon or gun charges? Federal weapon charges may encompass a number of different offenses, involving the possession, use, distribution and sale of firearms and other deadly weapons. In some cases, simply being in possession of a firearm or other weapon will be considered unlawful because the offender is a convicted felon or does not have a permit. Other cases involve the use of a weapon in the commission of a crime, such as armed robbery or aggravated assault.

Federal law makes it illegal for people to import, produce, or conduct transactions in firearms across state lines. There is an exception if the person possesses a license to import, produce, or deal in firearms (a federally licensed firearms dealer).

It is also illegal for a person to sell or otherwise distribute a firearm to another person when the person transferring the weapon knows that the buyer or taker does not live in the same state. Again, the exception is if the people making the transfer are licensed to deal in such weapons (federally licensed firearms dealers). There are also some other general exceptions, such as delivering a firearm to carry out the execution of a will or to loan a firearm to someone for lawful sporting purposes.

Federal law also prohibits the transportation of certain types of weapons. For instance, it is illegal for a person to transport any device deemed to be “destructive”. This includes bombs, grenades, “Molotov cocktails”, rockets, missiles, mines, explosives, incendiary devices, flame throwers, and similar weapons. There is a general prohibition on transporting machine guns as well as rifles and shotguns with short barrels (“sawed off shotguns”). Machine guns include any weapon that can automatically fire more than one shot by a single function of the trigger. It may also include any part of the whole weapon such as the frame or receiver. It is also generally unlawful to convey or own a machine gun; however, there are a few statutory exceptions.

Federal law prohibits straw purchasers (“strawman purchase” or “strawman buyer”) of firearms. These laws make it illegal for a person acquiring a firearm from a dealer to use any false written or oral statements or to present any false identification intended to deceive the dealer about the legality of the transaction or the ultimate owner of the firearm. Basically it is against federal law to purchase a firearm on behalf of another person. It doesn’t matter if the other person is your wife, or your father: buying a firearm with the sole intent to give to them is illegal and could land you in federal prison!!!!

The preservation of serial numbers is also a concern. A person violates federal law if he knowingly delivers, transports, or accepts any firearm with a serial number that has been altered, changed, removed, or destroyed.

Certain classes of people are barred under federal statute from possessing any firearms. These classes include: convicted felons; people who are addicted to certain illegal drugs; people deemed to have certain mental impairments; people in the country illegally; anyone who has been dishonorably discharged from military service; people who are foreign nationals or aliens, and anyone restrained by a lawful court order.

Generally, a conviction under federal firearm laws may result in a sentence of 5 to 10 years and a fine, depending on the specific crime. A sentence may be greatly increased if the weapon is used in connection with certain crimes such as drug trafficking or racketeering (RICO) charges. A person convicted of a weapons offense may also face difficulty finding employment in the future and may also face limited opportunities in regard to housing and financing.

For convicted felons, a prior felony conviction is usually determined by the state or authority where the offense took place. Significantly, a conviction of “felon in possession” can be achieved even if the weapon was not on the convicted felon’s body. The mere intent and ability to control the weapon is enough for a conviction. Also, the government does not need to show that the firearm was working or capable of being fired for a conviction.

In defending a federal firearms violation, a federal criminal defense attorney will challenge the government’s evidence. The government must prove every element of a crime as charged. For instance, one element of the straw purchaser law is that the offender knew he was lying when he attempted to purchase a gun. If there is no evidence that he knew he was giving false statements, there can generally be no conviction.

Another powerful line of defense is to determine whether the search and seizure that led to the discovery of any weapons was legal. If the weapons were discovered in a vehicle, the attorney will have to determine if the officer who stopped the vehicle had probable cause to do so. It will also have to be determined if the officer had cause to search the vehicle, or if valid consent was given by the accused. If the weapons were discovered in a home, an attorney will have to verify that the search was based on a valid search warrant or other cause. If the police violated a person’s rights, a judge may be forced to suppress any evidence that was gathered during the search. Suppression of evidence can often lead to a dismissal of charges or an acquittal. That is why you need a seasoned Kentucky federal criminal defense lawyer who can deal with federal gun charges.

A defendant who illegally possesses a firearm may also argue that he was justified in possessing a gun due to duress or necessity (aka “justification defense”). This defense does not negate the intent to possess the gun, but it may allow a defendant to escape liability due to dangerous conditions. Generally, a defendant will need to be able to show that he was under an unlawful and imminent threat of death or serious bodily injury that he did not place himself in, and that there was no reasonable alternative but to have a gun. Trying to establish such a defense is quite difficult and will require an experienced Kentucky federal criminal defense lawyer.

Clark Baird PLLC is a law firm based in Louisville, Kentucky that takes on federal cases throughout the nation. J. Clark Baird has over 7 years of experience in criminal defense and in working to defend the rights of individuals throughout the U.S. who have been accused of, arrested for and charged with any type of federal crime.

Some examples of federal weapon charges cases the firm can handle include:

  • Unlawful possession of a weapon
  • Firearms trafficking
  • Unlawful import and export of weapons
  • Violent crimes involving the use or discharge of a firearm
  • Fraud in obtaining a permit to possess or purchase a firearm

State and federal law regarding weapon possession, distribution and sale may vary. It is important to be sure that your lawyer understands how the law applies to your particular case, in order to build a stronger and more effective defense strategy on your behalf. Contact a Kentucky federal criminal defense lawyer from J. Clark Baird PLLC today to talk about how a our federal weapon charges lawyer can protect you against a conviction. The firm is based in Louisville; however, they accept cases all throughout Kentucky and nationwide. We have practiced in ten different federal districts across the country, which provides us with extensive experience in federal criminal defense.

The information provided here is a very broad summary and overview of federal firearms laws at the time this was prepared. Because the laws are subject to change depending upon Congress, ATF regulations, court cases and legal developments, you should not rely on this summary as legal advice.   As with any important legal question, you should always consult a lawyer experienced in federal criminal defense and licensed to practice in your jurisdiction. Our office has a license to practice in all federal and state courts in Kentucky and has practiced in ten different federal courts across the country, and may practice in your federal jurisdiction or even your state courts by special permission.

Examples of Federal Weapons Violations (18 U.S.C Section 922):

Possession of firearms by, or selling them to, people who are not allowed to possess them, such as:

  • Convicted felons: This person (convicted of a crime punishable by imprisonment for a term exceeding one year) is not allowed to knowingly possess, ship, transport or receive any firearm or ammunition affecting interstate commerce: § 922 (g)(1), 10 years. It does not matter what sentence the felon actually received. A felony crime does not include offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, other similar offenses relating to the regulation of business practices; or the conviction has been expunged, set aside, pardoned, or full civil rights restored unless they expressly provide for no firearms possession.
  • Fugitives from the law: This person (who flees from one State to another State to avoid prosecution) may not knowingly possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(2), 10 years.
  • Illegal aliens: This person may not knowingly possess, etc. any firearm or ammunition affecting interstate commerce: §922 (g)(5), 10 years
  • Person addicted to controlled substances: This person may not knowingly possess, etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(3), 10 years. 27 C.F.R. 478.11.
  • Foreign nationals who are not citizens: This person may not possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(5), 10 years, unless the alien falls under an exception or has a DOJ waiver described in § 922 (y)(2)&(3).
  • Anyone who has been dishonorably discharged from the military: This person may not knowingly possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(6), 10 years.
  • Those who have had any protection order issued against them for harassment or stalking anyone, or threats to a domestic partner: Both parties had opportunity to present evidence (holding an evidentiary hearing) prior to issuance of order; ex parte hearings would not apply. This person may not knowingly possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(8), 10 years
  • Those who have been convicted of domestic violence: This person may not knowingly   possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(9), 10 years. (Exceptions: a conviction that has been expunged, set aside, pardoned, or full civil rights restored, unless they expressly provide for no firearms possession; a conviction which did not have as an element the use or attempted use of force, 921 (a)(33)(A)).
  • People who are mentally ill, mentally incompetent, or on certain medications: This person may not knowingly possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(4), 10 years.     § 478.11.
  • Anyone under legal age (18 or 21, depending on the state in which they reside): This person (under 18 years of age) may not knowingly possess a handgun or handgun only ammo: § 922 (x)(2), 1 year. Exceptions: he has the prior written consent of his parent or guardian for use in employment, in ranching, farming, target practice, hunting, or a course in the safe and lawful use of a HG; the juvenile is a member of the Armed Forces or National Guard; or as protection during a home invasion.
  • People who renounce their U.S. citizenship: This person may not knowingly possess etc. any firearm or ammunition affecting interstate commerce: § 922 (g)(7), 10 years. (Note: many persons have done this for tax reasons; contact ATF Counsel for advice.)

It is also a violation of federal law to:

  • Carry a concealed weapon into a federal building
  • Attempt to carry a gun on a commercial airplane
  • Modify a semi-automatic weapon into an automatic weapon
  • Possess explosives (specifically outlined in 18 U.S.C. Section 921)
  • Possess body armor – though there are some specific exceptions (18 U.S.C. Section 931)

A person indicted for a felony or has a felony information filed against him, but not yet convicted, has restrictions placed on his firearms activity. He may continue to lawfully possess the firearms and ammunition he already has, but may not ship or take them across State lines and may not acquire more firearms or ammunition affecting interstate commerce.

Criminal Charges And Firearms Dealers

The Bureau of Alcohol, Tobacco and Firearms (ATF) strictly monitors legal gun sales. Violations of dealer record-keeping requirements and other associated statutes by firearms dealers (18 U.S.C. Section 922 (a)(11)) regularly occur at gun shows & firearm conventions, as well as through individual firearms sales. Those who are suspected of record-keeping violations are investigated primarily by the ATF, which also works in tandem with the FBI, local law enforcement, the Secret Service, and the Department of Homeland Security.

Often, gun show vendors are accused of violating sales records laws in the following ways:

  • Using “straw buyers,” who are essentially middle men with clean criminal records who then resell the weapons to ineligible third parties, such as convicted felons or illegal aliens.
  • Selling multiple firearms to one person within a five-day “embargo period.” Federal law only allows firearms to be sold one at a time, with a minimum interval of five days before that same buyer can purchase another.

Before engaging in the business of importing, manufacturing or dealing in firearms, a person must obtain a license from the ATF, § 922 (a)(1)(A). Willful violation of this requirement is a 5 year prison sentence. Before engaging in the business of importing or manufacturing ammunition, a person must obtain a license from the ATF, § 922 (a)(1)(B). Willful violation of this requirement is also a 5 year prison sentence. A person who sells ammunition only is not required to be licensed.

Prosecution of Federal Firearms Laws

The Department of Justice (DOJ) has guidelines that are employed in part to determine when to prosecute people suspected of violating these laws.   Each state has its own gun laws that are commonly used to prosecute alleged lower-level weapons violations. Therefore the federal government will usually allow state prosecutions of most gun cases. The federal authorities focus on firearms dealers and enterprise crimes where guns are likely to be involved, such as prostitution and human trafficking, large drug conspiracies, RICO (organized crime) offenses, and other violations which combined have huge potential prison sentences which can often intimidate defendants.

Federal Firearms Sentences

The following are mandatory minimum penalties for selected gun offenses, which can be charged in multiple counts [18 U.S.C. section 924(c)(1)(A)(i); and 2K2.4]:

First Offense

  • Using or carrying a firearm while trafficking drugs – 5 years in federal prison (or added to sentence for underlying crime)
  • Brandishing a firearm during a crime of violence or drug trafficking – 7 years (or enhanced penalty for underlying crime)
  • Discharging a firearm during a crime of violence or drug trafficking – 10 years (or added to underlying sentence)
  • Firearm as a short-barreled rifle or shotgun – 10 years (or added to underlying sentence)
  • Firearm is a a machine gun or equipped with a silencer or muffler – 30 years (or added to sentence for underlying crime)
  • Possession or use of armor-piercing ammunition during a crime of violence or drug trafficking—15 years (or added to sentence for underlying crime)

Second Offense

  • Using, carrying, or discharging a firearm while trafficking drugs or committing any crime of violence – 25 years in federal prison (or added to underlying sentence)
  • Firearm is a machine gun or equipped with a silencer or muffler – life imprisonment                       
  • Possession of a firearm or ammunition by a fugitive or addict with three convictions for violent felonies or drug offenses (Armed Career Criminal Act) – 15 years

Definition of a Firearm: The Gun Control Act of 1968, 18 U.S.C 921 (a)(3):

(A) Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or (B), the frame or receiver of any such weapon; or (C), any firearm muffler or firearm silencer; or (D), any destructive device.

This statutory definition does not apply to antique firearms, as defined in Section 921 (a)(16), e.g., an antique ignition system firearm (e.g., matchlock, flintlock, percussion cap, etc.); or a historical firearm made in or before1898, etc.

Use of a Firearm During the Commission of a Federal Crime: 18 U.S.C. § 924 (c)

Any person who uses, carries or possesses a firearm § 921 (a)(3), destructive device § 921 (a)(4), silencer 921 (a)(24), or armor piercing ammunition § 921 (a)(17)(B) to commit any of the following Federal crimes is subject to severe mandatory minimum prison terms and the death penalty if murder occurs during the crime.

Examples of Federal Crimes of Violence

  • Drive-by shooting, §§ 36, 1959                     
  • Assaulting Federal officer or family member, §§ 111, 115, 1111, 1114
  • Civil rights violation, §§ 241, 242                 
  • Bombing Federal property, § 844 (f)            
  • Bombing property of organization or institution receiving Federal money, § 844 (f)                       
  • Bombing business property, § 844 (i)                       
  • Murder on Federal property, § 1111            
  • Kidnapping, § 1201               
  • Threatening/retaliating against witness, informer or juror, §§ 1512, 1513             
  • Extortion of business, § 1951            
  • Robbery of business, § 1951             
  • Murder for Hire, § 1958                    
  • Gangs §§ 1959, 1962(c) (RICO)(example: drive-by shooting)
  • Carjacking, § 2119
  • Bank robbery, 2113
  • Interstate travel to commit domestic violence, § 2261

Federal Drug Trafficking Crimes

  • Illegal drug dealing, 21 U.S.C. § 841 (a)
  • Possession of illegal drug with intent to sell, § 841 (a)

Federal Home Invasions

  • Robbery of residence where illegal drugs are sold, §§ 1951, 841 (a)                                   
  • Robbery of residence where legal interstate business conducted, § 1951                            
  • Robbery of residence where interstate business proceeds stored, § 1951                            
  • Robbery of residence where interstate salesperson lives, § 1951
  • Robbery of residence where stolen items taken across State lines, § 1951

Career Criminal ”3 Strikes And You’re Out”

  • A person who is convicted of § 924 (c) and has two previous convictions for a Federal or State serious violent felony or serious drug offense, committed on separate occasions, shall be sentenced to mandatory life imprisonment, § 3559. The § 924 (c) conviction is the “third strike.”

Restrictions on Guns, Ammo and Accessories

  • National Firearms Act – A person who intends to make, receive or possess any of the following NFA firearms must first pay a tax and have the firearm registered with the Federal government (ATF): 26 U.S.C. §§ 5801- 5872, 10 years for each violation
  • Short Barrel Shotgun, barrel length less than 18 inches or overall length less than 26 inches, § 5845                        
  • Short Barrel Rifle, barrel length less than 16 inches or overall length less than 26 inches, § 5845                        
  • Silencer, 18 U.S.C. § 921 (a)(3)(C)                           
  • Destructive device, (bomb, IED, Molotov cocktail)18 U.S.C. § 921 (a)(3), (a)(4); 26 U.S.C. § 5845                        
  • Machine Gun, § 5845
  • “Any other Weapon”, weapon capable of being concealed on the person from which a shot can be discharged via an explosive (e.g., ring gun, club gun, belt buckle gun, handlebar gun, pen gun) etc., § 5845
  • Stolen Firearms & Ammo– Illegal to steal, possess, or receive a stolen firearm or ammo, §§ 922 (i), 922(j), 922 (u), 924 (l), 924 (m), 10 years.
  • Hand Gun Armor Piercing Ammo, definition: § 921 (a)(17)(B)&(C) violations: § 922 (a)(7), (a)(8), 923(e), 929, 924 (c)(5), different penalties.
  • Undetectable Firearm – Illegal to import, make or possess, etc. – § 922 (p), 5 years.
  • Body Armor – Illegal for person previously convicted of a felony crime of violence to purchase, own or possess body armor – §§ 921 (a)(35), 931, 3 years.
  • Firearms with serial numbers removed/obliterated/altered – Illegal to knowingly possess a firearm with the serial number removed, changed, etc., § 922 (k), 5 years.

Federal firearm prosecutions can be complex. You need an experienced criminal defense attorney to defend your legal rights. If you have been charged with a federal gun crime, J. Clark Baird PLLC may be able to help.   Contact us 24 hours a day, 7 days a week at (502) 583-3388 or clark@jclarkbaird.com. And remember: DO NOT SPEAK WITH LAW ENFORCEMENT AGENTS WITHOUT A LAWYER!!!! EXERCISE YOUR RIGHT TO REMAIN SILENT!!!

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