Former Manhattan prosecutors specializing in criminal defense and civil rights in state and federal courts.

Send My Information

Federal Firearms Defense Attorney Explains Federal Law on Crimes relating to Possession and Sale of Illegal Firearms

Posted By Galluzzo & Arnone LLP || 12-Apr-2013

Federal law makes it a serious crime for certain prohibited persons to possess or sell firearms. Under federal law, one can also expect to receive a very serious sentence for possessing certain types of illegal firearms or using a firearm in furtherance of some other crime, such as robbery or drug trafficking. Below is a brief summary of some of the relevant statutes.

I. POSSESSION OF A FIREARM OR AMMUNITION BY A PROHIBITED PERSON

18 USC § 922(g) & (n). Punishable by up to 10 years imprisonment. May receive minimum sentence of 15 years without parole if offender has three or more prior convictions for a felony crime of violence (e.g. burglary, robbery, assault, possession of offensive weapons) and/or drug trafficking felony.

Elements

A. Possession or receipt of a firearm or ammunition;

B. By a subject who falls within one of the following categories:

1. Felon – (Additionally, persons awaiting trial on felony charges are prohibited from receiving firearms.);

2. Drug user or addict – (Often shown where paraphernalia seized, subject tests positive for drugs and/or subject claims drugs were possessed for personal use.);

3. Alien – (Includes illegal aliens and aliens lawfully admitted under non-immigrant visas, i.e., those aliens not admitted for permanent residence. This provision does not prohibit aliens who lawfully possess a so-called "green card" from possessing guns or ammunition.);

4. Is subject to a domestic restraining order – (The order must prohibit contact with an intimate partner, or child of the subject, and must have been issued only after a hearing of which the subject was notified and at which the subject had an opportunity to participate. The order must also find the subject poses a threat to the physical safety of the intimate partner or child or must prohibit the use, threatened use or attempted use of physical force.);

5. Has a prior conviction for domestic assault – (Includes a prior conviction for any assault or threatened use of a deadly weapon against a present or former spouse or partner or child or guardian of any such person. The subject must have been entitled to a jury trial and been represented by counsel in the prior proceeding or be shown to have waived those rights.);

6. Fugitive from justice – (Fled any state to avoid being prosecuted or to avoid testifying in any criminal proceeding.); or

7. Dishonorably discharged from the military; AND

C. The firearm or ammunition was transported across a state line at any time. [Note, that means at any point during the manufacture or supply chain prior to the sale of the firearm or ammunition, meaning that it does not need to have been actually transported across state lines by the end user or person charged with possessing the items himself/herself).

II. KNOWINGLY SELL, GIVE OR OTHERWISE DISPOSE OF ANY FIREARM OR AMMUNITION TO ANY PERSON WHO FALLS WITHIN ONE OF THE ABOVE CATEGORIES:

18 USC § 922(d). Punishable by up to 10 years imprisonment.

III. USE, CARRY OR POSSESS A FIREARM IN RELATION TO OR IN FURTHERANCE OF A DRUG FELONY OR A FEDERAL CRIME OF VIOLENCE:

18 USC § 924(c). Punishment ranges from at least 5 years up to life imprisonment, without parole, or death if death results from use of firearm. Sentence must be served consecutive to any other sentence. Mandatory minimum sentence increases depending upon: the type of firearm involved (sawed-off gun, silencer, etc.); whether more than one offense was committed; and whether gun was simply possessed or was brandished or discharged.

IV. STOLEN FIREARM, AMMUNITION OR EXPLOSIVE:

18 USC §§842(h); 922(i), (j) & (u). Punishable by up to 10 years imprisonment.

A. May not receive, possess, conceal, store, pledge or accept as security for a loan, barter, sell or ship or transport across a state line any stolen firearm, ammunition or explosive.

B. May not steal or unlawfully take or carry away a firearm from the person or premises of a firearms licensee.

V. FIREARM IN A SCHOOL ZONE:

18 USC § 922(q)(2)(A). Punishable by up to 5 years imprisonment.

A. Except as authorized, may not possess or discharge a firearm in a school zone.

VI. KNOWINGLY POSSESS OR MANUFACTURE:

18 USC § 922(k), (o) & (v); 26 USC § 5861. Punishable by up to 5 or 10 years imprisonment, depending upon specific violation.

A. Any machine gun, fully automatic firearm or any part designed or intended exclusively for use in such weapon;

B. Any firearm silencer, including any device, or part thereof, designed to silence, muffle or diminish the report of a firearm;

C. Sawed-off shotgun with a barrel length of less than 18″ or overall length less than 26″;

D. Sawed-off rifle with a barrel length of less than 16″ or overall length less than 26″;

E. Destructive device;

F. Semi-automatic assault weapon manufactured after October 1, 1993; OR

G. Any firearm which lacks a serial number or contains an altered or obliterated serial number.

VII. SELL, DELIVER OR TRANSFER TO A JUVENILE:

18 USC § 922(x)(1). Punishable by up to 1 year imprisonment unless transferor had reason to believe juvenile would commit crime of violence with gun or ammunition then up to 10 years imprisonment.

18 USC § 922(b). A firearms licensee faces up to 5 years imprisonment.

A. May not sell, deliver or transfer a handgun or handgun-only ammunition to a person who is under age 18;

B. A person under age 18 may not possess a handgun or handgun-only ammunition;

(Certain exceptions apply to A & B, such as where juvenile possesses written permission of a parent.);

C. A firearms licensee may not sell any gun or ammunition to anyone under the age of 18 and may not sell a handgun or handgun ammunition to a person under the age of 21.

DEFINITION OF "FIREARM":

Any weapon (including a starter gun) which will expel a projectile by means of an explosive or is designed or may be readily converted to do so. This includes the frame or receiver of any such weapon, any firearm muffler or silencer or any destructive device.

A "destructive device" includes any explosive, incendiary or poison gas — (i)bomb; (ii) grenade or (iii) similar device, or any combination of parts designed or intended to be converted into a destructive device, or from which a destructive device may be readily assembled. Does not include black powder or antique type firearms. 18 USC §921(3).

SUMMARY

Many of these offenses can also be prosecuted under state law, but the punishments under federal law tend to be more severe. As a result, many arrests for illegal firearms made by state or local law enforcement get referred to the federal authorities for prosecution under federal law. Thus, one should never assume that a state-level arrest for an illegal firearm will not ultimately be prosecuted as a federal crime.

If you or a loved one have been arrested for a firearms offense, you should strongly consider contacting an experienced criminal defense attorney immediately, such as these attorneys available here.

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,