Federal Felon in Possession of a Firearm

Under 18 U.S.C. § 922(g)(1), the crime of Felon in Possession of a Firearm is committed when a convicted felon ships, transports, or possesses any firearm or ammunition that has been distributed in interstate or foreign commerce.

Definition of a Conviction

Pursuant to 18 U.S.C. § 921(a)(20), the existence of a felony conviction under 18 U.S.C. § 922(g)(1) is “determined in accordance with the law of the jurisdiction in which the proceedings were held.”

Florida is one of several states that authorizes a form of deferred judgment called withholding adjudication of guilt. Under Florida law, a person who receives a withhold of adjudication of guilt is not considered to be a convicted felon. [1]

Consequently, a guilty plea for a felony in which adjudication was withheld under Florida law does not qualify as a “conviction” under federal law. [2]

Penalties for Felon in Possession of a Firearm

Under federal law, the crime of Felon in Possession of a Firearm is a Class D felony, punishable by up to ten years in prison, three years of supervised release, and $250,000 in fines.

Under the United States Sentencing Guidelines, a person convicted of Felon in Possession of a Firearm would be assigned a base offense level between 12-26, which carries a guideline range of 10-78 months in prison before taking into account any mitigating or aggravating circumstances.

As of 2016, the average federal sentence imposed for Felon in Possession of a Firearm fell between 46-75 months in prison. [3]

Armed Career Criminals

The Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), mandates a minimum 15-year term of imprisonment for any person convicted of Felon in Possession of a Firearm if the person has three prior state or federal convictions for violent felonies or serious drug offenses.

A violent felony is defined as as any felony that (1) has an element of threat, attempt, or use of physical force against another, (2) involves burglary, arson, or extortion, or (3) constitutes a crime similar to burglary, arson, or extortion.

The Armed Career Criminal Act defines serious drug offenses as any drug offense punishable by imprisonment of 10 years or more.

Defenses to Felon in Possession of a Firearm

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Felon in Possession of a Firearm include:

Civil Rights Restoration with Firearm Authority

A person whose civil rights and firearm authority have been restored cannot be convicted of Felon in Possession of a Firearm under federal law. [4]

However, while many convicted felons in Florida have had the majority of their Civil Rights restored, including the right to carry a weapon, very few have had their right to possess a firearm restored under Florida law.

Illegal Search and Seizure

Often, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search when they otherwise would not be required to; coerce people into agreeing to a search; arrest people without probable cause; or obtain search warrants in bad faith.

If any of these can be proven through the filing of a Motion to Suppress, the courts will suppress the resulting evidence as having been illegally obtained in violation of the Fourth Amendment of the United States; which can lead to an outright dismissal of the case.

Substantial Assistance

While not technically a defense, Substantial Assistance is the most commonly utilized method to avoid the severe penalties the crime of Felon in Possession of a Firearm carries.

The prosecutor is authorized by statute to ask the court to reduce or suspend a sentence of any person who is convicted of drug trafficking when the person provides substantial assistance in the identification, arrest, or conviction of any other person engaged in trafficking in controlled substances.

This remedy is routinely offered pursuant to a "Substantial Assistance Contract" that requires you to "assist" law enforcement in arresting a specific amount of individuals involved in trafficking drugs within a limited period of time.

However, if you are unable to deliver the specified amount of people, you will be required to serve the applicable mandatory minimum prison sentence; regardless of how hard you tried to "assist" law enforcement.

Contact Federal Defense Lawyer Richard Hornsby

If the Federal government is prosecuting you for the crime of Felon in Possession of a Firearm in federal court, contact Orlando Federal Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. Clarke v. United States, 184 So. 3d 1107 (Fla. 2016)
  2. United States v. Clarke, 822 F. 3d 1213 (11th Cir. 2016)
  3. Quick Facts on Felons in Possession of a Firearm, United States Sentencing Commission
  4. 18 U.S.C. § 921(a)(33)(B)