922g1 gun charges.
18 U.S.C. § 922(g)(1) is the felon-in-possession of a gun law. It bans people with a felony record from possessing a firearm. Critically, a felony is any crime that carries a possible jail term that is more than one year.
Thus, if a person pleads guilty to or is convicted by a jury of a felony and is later caught with a gun, then that person may face a 922g1 gun charge. Further, 922(g)(1) gun crimes carry heavy penalties. But the actual penalty will depend on the person’s criminal record, the sentencing guidelines, and the facts of the case.
Of major interest, we will talk about the average jail time for this crime. We will also cover the known problems with 922g1 gun charges.
Namely, police must be able to link or connect the person with a felony record to the gun. If the evidence does not show this link, then the person is not guilty of a 922g1 gun charge.
What does it mean to “possess” a firearm mean?
To possess a gun, you must have knowledge and control over the gun. In other words, you must know about the gun and control it either directly or indirectly. This is where the 922g1 gun law gets tricky.
Usually in a 922g1 gun case, there is no dispute that the person has a felony record. And there is no dispute that the gun is a firearm. So these cases turn on two things. What did the person know about the gun? And what did the person do to control the gun?
The answers to these two questions will lay the ground work for a 922g1 gun defense. To understand why, we first need to look at legal definition for “possession” and then review the elements for this gun crime.
Definition of “possession” in a 922(g)(1) gun case.
| No. | Definitions of Possession. |
|---|---|
| 1. | Possession means either actual or constructive possession. |
| 2. | A person who knowingly has direct physical control over a thing, at a given time, is in actual possession of it. |
| 3. | A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is in constructive possession of it. |
| 4. | Possession may be sole or joint. If one person alone has actual possession or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. |
Examples of being in possession of a firearm.
Notably, the definition above is provided by the Fifth Circuit Court of Appeals. But to see how this law works, it is helpful to look at a few examples. For instance, a person is in possession of a gun if:
- he has a gun in his pocket;
- police see him carrying a gun; or
- police link the person to the gun with fingerprint or DNA evidence.
Above all, the key to this crime is control. The person must be in control of the gun to be guilty of a 922(g)(1) gun crime. On top of that, control can be either direct or indirect.
In contrast, if the person is not in control of the gun, then he is not in “possession” of the gun–and has not broken the law.
What is the definition of a 922(g)(1) firearm?
| 18 U.S.C. §921 | Firearm Definition. |
|---|---|
| (a)(3) | The term "firearm" means |
| (A) any 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; | |
| (B) the frame or receiver of any such weapon; | |
| (C) any firearm muffler or firearm silencer; or | |
| (D) any destructive device. | |
| Such term does not include an antique firearm. |
Examples of firearms.
Examples of a firearm include:
- Smith & Wesson Revolvers;
- Glock pistols;
- AR-15 Rifles;
- AK-47 Rifles;
- Hunting rifles;
- Shotguns; and
- Starter pistols.
However, antique firearms are not included in this definition. These are guns made before 1898. According to the ATF, they include matchlock, flintlock, and percussion-cap rifles.
18 U.S.C. § 922(g)(1) gun law.
| 18 USC § 922. | Felon In Possession of a firearm. |
|---|---|
| (g) | It shall be unlawful for any person-- |
| (g)(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 commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. |
Simply stated, the 18 U.S.C.§922(g) gun law bans specific groups of people from having a gun. One of these groups includes people with felony record, i.e., felons. The end result is if you have a felony record of any kind, then you cannot “possess” or own a firearm.
However, the Supreme Court may change this law in 2024. In particular, over the last couple of years, the Court is reconsidering who can possess a gun and where they can possess a gun. Unfortunately, the case law is not clear at this point. But the Rahimi case should help clear up when–if at all–people facing a 922g gun crime can possess a gun.
Penalties for a 18 U.S.C. § 922(g)(1) gun crime.
| § 922(g)(1) Penalties. | Criminal History. | Jail Time. |
|---|---|---|
| Felony Record. | A prior felony conviction. | Up to 10 years in prison and up to a $250,000.00 fine. |
| Serious Felony Record. | Armed Career Criminal Act (ACCA) of 1984. If the person has three previous convictions by any court for a violent felony or a serious drug offense. | A minimum of fifteen years in jail and up to life in prison.* |
Strangely, the top penalty for being an Armed Career Criminal is not listed in §924(e) either. Rather, the top penalty of life in jail seems to be implied by statute. See Johnson v. United States, 576 U.S. 591, 593 (2015).
What are the guidelines for felon-in-possession gun crimes?
U.S.S.G.§ 2K2.1 is the 922(g)(1) guideline. In fact, this guideline covers all crimes listed under 18 U.S.C. § 922(a)-(p). Some of the crimes this guideline applies to include straw buyers, undocumented non-citizens caught with a gun, and fugitives caught with a gun.
Under this guideline, the base offense level can be as low as 6 or as high as 26. This is a huge range that give judges leeway to go either soft or heavy at sentencing. To see why, let’s look at factors that can raise the jail term for someone convicted of being a felon-in-possession of a gun.
Factors that can raise the jail time for someone convicted of a 922(g)(1) gun crime.
The jail term will go up if the following facts are true:
- Person had a large number of guns. See the table below;
- Gun was stolen;
- Serial number on gun is removed;
- The firearm is a semi-automatic weapon that can load 15 rounds or more; and
- Finally, the person’s criminal record includes violent felonies or drug-related crimes.
In sum, if the person has a serious criminal record or has lots of guns, then he may serve a long jail term for a 922(g)(1) gun charge.
Large Number of guns can push up your jail time For 18 USC § 922 Gun Crimes.
| Group. | Number of Firearms. | Increase In Offense Level. |
|---|---|---|
| (A) | 3-7 | +2 |
| (B) | 8-24 | +4 |
| (C) | 25-99 | +6 |
| (D) | 100-199 | +8 |
| (E) | 200 or more | +10 |
Another example is when police do a Terry frisk and find a gun in the person's pocket or waistband. Again, if this person is a felon, then police can arrest him and charge him with a gun crime.
In both of these cases, usually only one gun is found. So the table above will not result in a higher offense level.
In contrast to these examples, sometimes police raid a house and find more than one gun. This can happen where there is a gun in the person's nightstand, a shotgun in the closet, and another gun on the person when he is arrested. If this is the case, then these extra guns can push up his offense level.
The major point is that more guns mean a higher offense level and higher jail time.
What is the Average Sentence for 922g1 gun charges?
As the graph above shows, the government tracks the number of 922(g)(1) gun cases for each year. For example, the graph shows that these cases rose from 2016 to 2019. But then the numbers dropped in 2020. This was likely due to the pandemic.
More to the point, the data shows the average jail time for this crime. To illustrate, for the years 2017-2020, the average jail terms are:
- 2020: 56 months in jail;
- 2019: 58 months in jail;
- 2018: 59 months in jail; and
- 2017: 58 months in jail.
One important note about these numbers. These jail terms are averages for people charged only with a 922(g)(1) crime. If the person is also charged with a drug crime or under the ACCA, then the average jail term will be higher.
To recap, these jail terms show two things. First, 922(g)(1) cases carry real jail time. Second, the amount of jail time a person gets is constant. This gives us an idea of what to expect at sentencing. However, these numbers are only an average. They can be higher or lower depending on different factors.
Known problems that happen with 922g1 gun charges.
The biggest problem in a gun case is that police may not be able to link the gun to the person. For instance:
- No knowledge or control of the gun: Police find the gun in a car, home or location where there are lots of people present;
- Bad police searches: police find the gun on the person or his property, but do not have reasonable suspicion or probable cause to search or arrest him; and
- Miranda issues: Finally, police ask the person questions without telling him he did not have to talk. If his statements are the only facts linking him to the gun, then this too can lead a judge to kick out the case.
In short, a person in this situation should check to see if he has a defense to the gun case. This happens when there is little or no evidence showing the person knew about the gun or controlled it.
San Antonio 922g1 Gun Charges Criminal Defense.
922(g)(1) gun crimes carry heavy penalties. But being arrested for this crime does not always mean the person is guilty. This is because police must connect the person to the gun. This link is critical. If there is no link, then police cannot show the person was in “possession” of the gun.
Gun Crimes Defense Attorney Genaro Cortez.
Genaro R. Cortez is a criminal defense attorney in San Antonio who handles 922g1 gun cases. Call today for a free case consult. 210-733-7575.