Federal sentencing guidelines for possession of firearm with prior felony convictions

December 16, 2010

Possession of Firearm | Armed Career Criminal | Chicago | FBI, ATF Arrest | 18 USC 922(g)(1) | Rockford US District Court

In prosecutions for possession of a firearm by a convicted felon, the United States Attorney may seek a sentence based on the defendant’s Armed Career Criminal status. When this occurs, sentencing is severe.

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

(g) 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….

to ship or transport in interstate or foreign commerce, or possess in or affecting [interstate] commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

See18 USC 922(g)(1).

While gun charges are typically state court matters, if the firearm was possessed in some way that implicates interstate commerce, it becomes a federal charge. A firearm can be said to be possessed in or affecting interstate commerce if it crossed state lines, or its ammunition or parts crossed state lines. However, there are countless ways in which this can be established.

The defendant gains the status of an Armed Career Criminal where he has three prior convictions pursuant to 18 USC 924(e):

In the case of a person who violates section 922 (g) of this title and has three previous convictions by any court referred to in section 922 (g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922 (g).

See 18 USC 924(e)(1).

The minimum sentence for an Armed Career Criminal is 15 years in federal prison. In addition, the statute provides that there is no maximum. The court can sentence the defendant to life in prison.

The term Armed Career Criminal comes from the federal sentencing guidelines. See USSG 4B1.4.

The convictions have to qualify in order to be used for this sentencing enhancement. The convictions must fall into either of the following categories:

Serious drug offenses. These drug offenses include all federal drug crimes under 21 USC 801 (such as 21 USC 841, possession with intent to distribute, or 21 USC 846, conspiracy) that have a sentence of 10 years or more in prison, and also any state drug crimes with a sentence of 10 years or more in prison where the elements of the offense include manufacturing, distributing, or possession with intent to distribute.

Note that state convictions for possession with no intent to deliver do not count.

Violent felonies. To be used for Armed Career Criminal status, these convictions must meet several criteria.

First, the crime must be a felony or a juvenile offense meeting several conditions. If the offense has a possible sentence of more than one year imprisonment then it is typically a felony.

For juvenile convictions, first, the crime has to involve the use or possession of a firearm, knife, or destructive device and constitute a felony if committed by an adult.

Second, the juvenile crime must also have an element of physical force against another person or threat or attempted use of such force, or involve burglary, arson, extortion, or the use of a destructive device that presents a serious potential risk of physical injury to a person.

Regardless of the fact that juvenile proceedings are confidential and the court records are not public record, these convictions can be used to enhance the sentence for possession of a firearm by a felon.

Federal sentencing generally involves combining the defendant’s offense level with the criminal history category. The sentencing guidelines say that the minimum offense level for Armed Career Criminals is 33 and minimal criminal history category is IV. The result is a sentencing range of 188-235 months (15.5 years to 19.5 years).

If the criminal complaint (eg, information) or grand jury indictment alleges that the defendant possessed the weapon in connection with a crime of violence or controlled substance offense, then the offense level is 34 and criminal history category is VI. This produces a sentencing range of 262-327 months (21.8 years to 27.25 years).

Federal firearms charges carry harsh penalties.

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