What is a 922(g)(1) gun crime?

18 U.S.C. § 922(g)(1) is a federal gun crime. This law bans people with a felony record from having a firearm. If a person with this type of criminal record is caught with a gun, then he may face a 922(g)(1) charge. In sum, this is the felon-in-possession of a firearm law.

Further, 922(g)(1) gun crimes carry heavy penalties. The actual penalty will turn on the person’s criminal record, the sentencing guidelines, and the facts of the case. Strikingly, a close look at the sentencing data shows how the government uses the 922(g)(1) gun law to keep guns out of the hands of felons.

What does it mean for a felon to have a gun?

To answer this question, we need to define a few key terms. These terms include both the words “possession” and “firearm.” In addition, we also need to look at the 922(g)(1) law itself. From there we can see how this gun law works. Above all else, we can provide a road map of what to expect if you are charged with this 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.
This is the definition of possession federal judges give to jurors in 922(g)(1) gun cases. More importantly, this definition is the one juries use in Texas to figure out if a person is guilty of being a felon-in-possession of a firearm.

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. §921Firearm 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, 18 U.S.C.§922(g) bans groups of people from having a gun. One of these groups includes people with felony convictions, i.e., felons. The end result is if you have a felony conviction of any kind, then you cannot “possess” or own a firearm.

How much jail time can you get 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.*

* Curiously, 18 U.S.C.§ 922(g)(1) does not list the penalties for being a felon-in-possession of a firearm. Instead, the penalties are listed in 18 U.S.C.§ 924.

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 being a felon-in-possession of a gun?

U.S.S.G.§ 2K2.1 is the 922(g)(1) guideline. In fact, this guideline covers gun all crimes listed under 18 U.S.C. § 922(a)-(p). Some of the crimes this guideline applies to are straw buyers, undocumented non-citizens caught with a gun, and people with warrants 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 gives 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
In most 922(g)(1) cases, police find only one gun on the person. For instance, police often stop drivers for a minor traffic offense. During this traffic stop, police may find a gun hidden under the driver's seat of the car. If the driver is a felon, then police can charge him with a 922(g)(1) crime.

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 on a 922(g)(1) gun case?

Felon In Possession of a Firearm Offenders.
The United States Sentencing Commission (USSC) tracks how many people are arrested for 18 U.S.C. 922(g)(1) gun crimes in America each year. From there, the USSC can figure out the average jail people get on these cases.

As the graph above shows, the government keeps detailed records on 922(g)(1) gun cases. For example, the graph shows that the number of gun cases steadily climbed from 2016 to 2019. But then the numbers dropped in 2020. This was likely due to the pandemic.

Most importantly, the data shows the jail time people usually get on a 922(g)(1) charge. 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. This is to keep guns out of the hands of felons. 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 in gun cases.

Police may have trouble linking the gun to the person. For instance:

  1. When police find the gun in a car, home or location where there are lots of people present. If this happens, then it may not be clear who had control over the gun;
  2. If police find the gun on the person or his property, but do not have reasonable suspicion or probable cause to search or arrest him. These are bad searches and arrests. A motion to suppress can lead the court to kick the case out; and
  3. 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. Often times, police will have a slam dunk case. When this happens, the person may want to consider a plea deal to lower his jail time.

Yet in other cases, police may not be able to connect the person to the gun. This happens when there is little or no evidence showing the person directly or indirectly controlled the gun. Similarly, if police rely on evidence from a bad search or seizure, then this too can lead the person to fight the case.

San Antonio Weapons Defense Lawyer.

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 the person may not be in “possession” of the gun. Or police may not be able to link the gun to the person.

For these reasons, a person arrested for a 922(g)(1) gun case should speak with a qualified lawyer to explore his options.

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org