922g Sentencing Simplified.
§2K2.1 contains the guidelines for 922g gun crimes. These guidelines are also the starting point for all 922g sentencing hearings. Notably, they help answer an important question: How much jail time can I get for a 922g gun crime?
But §2K2.1 covers many other types of gun crimes. It applies not only to 922g gun cases, but also to most federal gun crimes. For example, §2K2.1 is also the guideline for these gun crimes:
- straw buyers;
- lying on a gun application;
- illegally shipping or sending guns out of the country;
- knowingly selling guns to fugitives or undocumented noncitizens; and
As a result, §2K2.1 often feels like a black box for defendants. It is confusing and not easy to read. Even worse, these guidelines make it hard to figure out your possible jail time.
This post will simplify the 922g sentencing guidelines and show you how they work. We will also show you the facts that may increase the jail time in a 922g gun case. But first, we need to define a 922g gun crime.
What is a 922g gun crime?
922g creates a list of people who cannot hold or own a gun. If you are on the 922g list, then it is a crime for you to possess a gun. The list of people includes:
- Drug addicts;
- People who are not mentally competent;
- Veterans dishonorably discharged from the service;
- Anyone who gives up their US Citizenship;
- Stalkers or people with restraining orders;
- Anyone convicted of a misdemeanor crime of violence.
In sum, if you are on this list, then you cannot hold or own a gun. If you do, then police can arrest you for a 922g gun crime.
What is the 922g Offense Level?
Under §2K2.1, the offense level for gun crimes ranges from 6 to 26. Furthermore, according to §2K2.1(a)(6), the starting offense level for 922g gun cases is 14. However, there are a lot of factors that may push up the offense level and jail time in a 922g gun case.
Plus, the general rule is that a higher offense level leads to a higher jail time. To see why, we need to look at the sentencing table. The table shows that every federal crime has an offense-level number that ranges from 1 to 43. The more serious the crime, the higher the offense level.
Equally important, §2K2.1 lists factors that will increase the offense level for 922g gun cases. If these factors are present in a 922g gun crime, then it will raise the jail time.
In short, the offense level for a 922g gun case can go up or down depending on the facts of the case.
What are the 5 most common factors that raise the jail time in a 922g gun case?
1. Number of Guns:
More guns mean more trouble. The more guns involved in a 922g case, the higher the offense level. The table below shows how this works:
|Number of Firearms||Increase in Offense Level|
|200 or more||+10|
2. Criminal History:
The less criminal history, the lower the jail time. In contrast, lots of criminal history will increase the jail time. For example, if the defendant’s prior record includes two felony convictions for either a crime of violence or for a drug crime, then this will raise the jail term.
3. Type of Gun:
The type of gun also matters. To illustrate, if the person got caught with a sawed-off shotgun or machine gun, then this fact will increase the jail time.
4. Stolen Guns:
Stolen guns will raise the offense level and jail term.
5. Serial Numbers Removed:
If the person had a gun with no serial number, then this will raise the offense level and jail term.
There are different ways to defend a 922g gun case. But the three most common ways to fight a gun case are: (1) file a motion to suppress; (2) challenge the possession element of the crime; and (3) fight the sentencing bumps. So let’s take a look at each of these options.
1. Did police have a reason to stop you or search you?
The most basic question in a 922g cases is: “How did police find the gun?” This is where the Fourth Amendment comes into play. It is a hard check on police power. It requires them to have a good reason to stop you, search you, or both.
Additionally, there are at least three different reasons police can stop or search you. The first is probable cause. The second is reasonable suspicion. Finally, police can stop or search you if you consent.
In short, police need a good reason to stop or search you. If police have a good reason for the stop or search, then the gun evidence will come in at trial. But if they do not, then you should consider filing a motion to suppress. Likewise, the motion should also cover Miranda violations.
2. Were you in “possession” of the gun?
Gun cases are identical to drug cases on one key point. Both crimes have the same possession element. Stated differently, the crux of both crimes is to hold or own drugs or guns.
However, they differ on the type of contraband involved. For example, no one can own or hold cocaine, heroin, or meth. On the other hand, only some people are banned from owning or holding a 9mm pistol.
Nonetheless, the fight over the possession element is the same. Police must link the person to the gun. How police do this will depend on your case. In some cases, police find the gun in the pocket or hand of the person. In these cases, police will have little or no problem connecting the felon to the gun.
But in other cases, the possession element is the main fight in a gun case. You see this when police find the gun in car with a driver and one or more passengers. You will also see this come up when police find the gun in a house or apartment that has more than one occupant.
In these types of cases, police need to answer two questions:
- Did the felon know about the gun? and
- Did the felon have control over the gun?
The answer to these questions will help you decide if you should fight the case or work something out.
3. Challenge the bumps.
In simple 922g gun cases, the guidelines will be easy to figure out. But sometimes 922g gun cases get complicated. When this happens, you need to review the PSR carefully. This is because §2K2.1 is the main guideline for most gun crimes.
As a result, there is a lot of overlap in the guidelines between 922g cases and other gun crimes. This can cause probation officers and lawyers to misapply the guidelines. This requires you to always check the offense level. You must make sure any increase in the offense level, or bump, is correct. If it is not, then challenge the bump by objecting to the PSR.
In sum, don’t assume your PSR is correct. Verify it.
The bottom line on 922g gun crimes.
In most 922g gun cases, the facts and guidelines are straight forward. Police arrest a felon with a gun. There are no other bad facts. When this happens, it is easy to figure out the expected jail time. But in other cases, the facts are more complex.
You will see this in cartel cases that involve both drugs and guns. As an example, in many federal drug cases, cartels ship drugs into the United States and dealers return money, guns, or both to the cartels. Equally important, the dealers usually have felony records. This means they cannot buy the guns themselves. So they hire straw buyers for the guns.
Consequently, the guidelines become more complicated. This creates a real risk that there will be mistakes in your PSR. To make things worse, these mistakes often cause the offense level to be too high. And as we saw above, the higher offense level leads to more jail time.
For this reason, you should review the PSR carefully with your lawyer. In some cases, you may want to hire a PSR consultant to make sure there are no mistakes in the report. This can protect you from doing extra jail time based on a mistake in the PSR.
Gun Defense Attorney Genaro R. Cortez.