Firearm Offenses - Zingaro, Cretella and Rasile Law

What is a Firearm under federal law?

A “firearm” is defined as:

AAny 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;

BThe frame or receiver of any such weapon;

CAny firearm muffler or firearm silencer; or

DAny destructive device.

However, this definition does not include an “antique firearm,” which is defined as:

AAny firearm manufactured in or prior to 1898;

BAny muzzle loading rifle or muzzle loading shotgun or muzzle loading pistol

Who can lawfully possess a firearm under federal law?

The federal statutes, namely 18 U.S.C. § 922(g) prohibits anyone:

1Who has been convicted of a felony offense, which is a crime that is punishable by a term of imprisonment exceeding one (1) year;

2Who is a fugitive from justice;

3Who is an unlawful user of, or who is addicted to, any controlled substance under the Controlled Substances Act

4Who has been committed to a mental health institution or been adjudicated mentally defective;

5Who is an illegal alien;

6Who was a U.S. Citizen, but has since renounced his/her citizenship;

7Who is subject to a court order of protection;

8Who has been convicted of a domestic violence crime (even a misdemeanor).

What is a “felon in possession” charge?

One of the most common 922(g) charges is the “felon in possession” charge. This simply means that the person was a convicted for a crime that is punishable by imprisonment exceeding one (1) year. A person may be a “felon” even if they never received a term of imprisonment and only received a probationary sentence.

What or who is Rehaif and how can it help me?

In 2019 the U.S. Supreme Court decided Rehaif v. United States, 139 S. Ct. 914 (2019). This added an additional element to the knowingly requirement for the government to prove. Now, after Rehaif, the government must prove both: 1) the person “knowingly” possessed a firearm; and 2) the person was aware at the time they possessed this firearm that they were a prohibited person.

Mandatory Minimum Firearm Offenses

Using a Firearm in Furtherance of a Violent Crime or Drug Trafficking Crime – 18 U.S.C. Sec. 924(c)

This statute creates harsh mandatory minimum sentences in addition to (i.e. consecutive to) any other sentence. These harsh sentences apply to any person who, during and in relation to any crime of violence or drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

1be sentenced to a term of imprisonment of not less than 5 years;

2if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

3if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

What is a Crime of Violence under 924(c)?

The term “crime of violence” means an offense that is a felony and—

Ahas as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

Bthat by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

What is a Drug Trafficking Crime under 924(c)?

The term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 [46 USCS §§ 70501 et seq.].

What is a “felon in possession” charge?