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Possession of a firearm by convicted felon: federal offense

December 15, 2010

A charge in federal court for possessing  a firearm as a convicted felon carries extremely severe penalties. It does not matter that the firearm was unloaded. Nor does it matter that the weapon was never discharged.

In fact, the firearm itself may not be operable. Nonetheless, a person can be found guilty of this crime when he possesses only parts of a gun such as the frame or receiver. Click here to read more about the federal definition of a firearm.

In addition, it does not matter what the felony conviction was for. A conviction for aggravated driving under the influence (DUI) or aggravated driving while license suspended or revoked qualify. Any felony conviction is sufficient.

The federal offense of possession of a firearm by a felon is defined by statute, Title 18, United States Code, Section 922(g)(1). The offense is a felony. The law provides the following:

It shall be unlawful for any person-

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

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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.

See 18 USC 922(g).

Possession of a firearm by a felon is most often prosecuted in state court.

For example, in Illinois, it is a Class 3 felony for a person with any felony conviction to possess a firearm. See 720 ILCS 5/24-1.1. The penalty in Illinois is 2-10 years imprisonment, but if the felony conviction was for a forcible felony, a Class 2 felony for cannabis, methamphetamine, or a controlled substance, stalking, or a felony weapons charge, then the sentence is 3-14 years. If the defendant was on parole (eg, mandatory supervised release) at the time of the offense, regardless of what the prior conviction was for, then the sentence is 3-14 years as well. Finally, possession of a machine gun by a felon is an automatic Class X felony with 6-30 years prison.

But state charges give way to federal charges where the gun crossed state lines. Basically, if the federal government can establish that the gun was involved in some interstate activity, then it becomes a federal case. These cases are typically investigated by the Federal Bureau of Investigation (FBI) and Bureau of Alcohol, Tobacco and Firearms (ATF) in connection with distribution of controlled substances, conspiracies, drug trafficking, and RICO.

The penalty for 18 USC 922(g)(1), possession of a firearm by a felon, can be a 10 year sentence in federal prison.

Federal law defines a felony as any offense for which the punishment is more than one year of imprisonment. In cases where the defendant was sentenced to probation in state court for the felony, there is still generally a felony conviction.

In rare circumstances, state law will provide for a penalty in excess of one year imprisonment, but still categorize the offense as a misdemeanor. The federal courts have decided that in these cases, the defendant cannot be prosecuted in federal court because the underlying conviction was for a misdemeanor only.

If the defendant received a special type of probation on the felony that is available only to first-time offenders, then it may or may not be a felony conviction. For example, in Illinois, possession of a controlled substance (cocaine, heroin, etc.) and possession of over 30 grams of cannabis can result in a sentence of probation with no felony conviction. This probation is available for possession of a controlled substance and possession with intent to deliver under 720 ILCS 570/410 (called 410 probation). The same applies to felony cannabis cases under 720 ILCS 550/10.

Illinois also allows for special probation on other non-violent felonies called Treatment Alternatives to Street Crime (TASC). A sentence of probation under the TASC program can result in no felony conviction. See 20 ILCS 301/40-10(b).

Also, a petition to expunge or seal a felony may legally render the conviction a non-conviction for purposes of the federal firearms possession statute. Illinois allows for the expungement of 410 probation and prostitution felonies. Other felonies may qualify for sealing. The expungement and sealing process is different for each state.

Further, restoration of rights under state law, or a certificate of relief from disabilities may result in the removal of a conviction.

In any federal firearms case under Section 922(g)(1), the defendant should examine whether the felony actually is a felony conviction.

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