Federal Gun rights and Gun Possession Crimes in San Antonio.
Federal gun laws carry stiff penalties. These laws include 18 USC § 922(g). In particular, § 922(g) creates a list of people who are not allowed to possess firearms. These groups of people include felons, noncitizens, and people with certain family-violence records.
However, these gun crimes raise some basic questions. For example, how do gun-possession crimes work? And what are the penalties for these weapons charges? This post will answer these questions. It will also provide useful information for anyone charged with a gun crime in San Antonio or South Texas.
What disqualifies you from possessing a firearm?
922g bans some groups of people from possessing a firearm. Stated differently, 922g blacklists some people from owning or having a gun. This means that if you are on this list, then you cannot possess a firearm. Most important of all, if you are on this list and you possess a firearm, then you could face a 922g gun charge.
The table below lists the people who cannot possess a firearm.
| No. | Category of People Excluded from Possessing a Firearm |
|---|---|
| 1. | Felons; |
| 2. | Fugitives from justice; |
| 3. | Drug addicts; |
| 4. | People determined to be mentally incompetent; |
| 5. | Undocumented aliens; |
| 6. | People dishonorably discharged from the Armed Forces; |
| 7. | People who renounce their U.S. Citizenship; |
| 8. | People with restraining or protective orders based on family violence; |
| 9. | People convicted of domestic-violence offenses. |
What is a 922g felon in possession a firearm crime?
922(g)(1) is the felon with a gun law. It bans people with a felony on their record from possessing a firearm. And the key to this crime is the felony status of the person.
This means the prosecutors must prove the following facts to convict someone of being a felon in possession of a firearm:
| No. | Element |
|---|---|
| 1. | The defendant knowingly possessed a firearm; |
| 2. | The defendant was previously convicted in a court of a crime punishable by imprisonment for a term in excess of one year; |
| 3. | The defendant knew he had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year; and |
| 4. | That the firearm possessed traveled in [or affected] interstate commerce; that is, before the defendant possessed the firearm, it had traveled at some time from one state to another. |
As noted in the table above, 922(g)(1) has several key features. First, it requires knowledge. That is to say, the person charged with this crime must knowingly possess the gun. And he must be aware of his felon status. Second, his criminal record must include a felony conviction. A felony is any crime that carries a penalty greater than one year in jail. Finally, the gun must travel from one state to another. This is the interstate commerce requirement.
In short, prosecutors like these gun cases because they carry stiff penalties. And these gun crimes are easy to prove. Nevertheless, there are defenses to federal weapons charges that we will discuss below.
How do you defend against an 18 USC § 922(g) gun charge?
Show the person was not in “possession” of the gun.
There are different ways to defend against a gun-possession crime. The most basic approach is to challenge the elements of the crime. To illustrate, prosecutors must prove that a person was in “possession” of a firearm. This means where police find the gun will be a critical fact.
If police find the gun on the suspect’s waist-belt or pocket, then the issue will be clear cut. In this example, the person has direct physical control over the gun. This means he is in actual possession of the gun. And if he is a felon when this happens, then he is likely guilty of a 922(g)(1) gun crime.
Nonetheless, things get trickier if police find the gun next to a group of people or in an area where more than one person lives. As an example, if police find a gun in a house or apartment with multiple tenants, then it may not be clear who is in possession of the gun. In this example, police will need to show the defendant controlled the gun–either directly or indirectly. This is called constructive possession.
Bad Searches or No Miranda Warnings.
There is another issue that comes up in gun cases. In many cases, how police find the gun will be the main defense. As an example, many times police find the gun after making a bad search. Or worse yet, police pressure a person to consent to a search. Similarly, police can question a person about a gun without giving him or her a Miranda warning.
These are important issues to explore. In many cases there is no doubt the person was in possession of the gun. But a bad search or interrogation can allow a person to file a motion to suppress. If the motion is successful, then it could lead to reduced or dismissed charges.
Duress and Self-Defense.
In brief, the duress defense happens when a bad actor threatens a person into committing a crime. As an example, the bad actor puts a gun to a suspect’s head and says, put these drugs in your car now, or I will shoot you in the head. Another example is if a felon grabs a firearm to defend himself against a threat from a bad actor. In this hypothetical, there can be overlap between possessing a gun in self-defense and possessing the gun out of duress.
In sum, if a felon can prove he possessed the gun because of duress or self-defense, then this can lead to a not guilty verdict.
Did the person know he was a felon when he possessed the gun?
In 2019, the Supreme Court opened a new defense theory for § 922(g) gun crimes. As we mentioned above, there are nine categories of people who cannot possess a gun. That means the prosecutors must prove the suspect knew he was in one of those nine categories.
To illustrate, let’s consider two examples. First, most suspects know they are felons. Prosecutors prove this by introducing court records establishing the felony conviction. Prosecutors call them pen packets or “pen packs.” Moreover, suspects usually do not forget the time they did in a penitentiary. It is a life changing experience to say the least.
But what happens if the government charges you with a § 922(g)(5) crime? Namely, they charge you with being an undocumented immigrant in possession of a gun. Then how can the government prove you knew you were an undocumented immigrant? This creates a problem because many people do not know they are in the United States illegally. Especially, if they came to this country at a very young age. In these types of situations, knowledge about a suspect’s legal status can be a defense to a § 922(g) gun crime.
To recap, the government must prove the suspect knew he belonged to a category of people who are not allowed to possess a gun. If the government cannot prove this issue, then they cannot convict a person of a § 922(g) gun crime. See Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019).
What are the Penalties for a 922g gun crime?
The table below lists the penalties for the most common § 922(g) federal gun possession crimes in San Antonio, Texas. This includes the penalty for being a felon-in-possession of a gun under § 922(g)(1).
Penalties for Common Federal Gun Possession Crimes
| Gun Crime | Jail Time | Fine |
|---|---|---|
| Federal felon in possession of a firearm. 18 USC § 922(g)(1). | Up to 10 years in jail. | Up to a $250,000.00 fine. |
| Gun possession by an undocumented person. 18 USC § 922(g)(5). | Up to 10 years in jail. | Up to a $250,000.00 fine. |
| Gun possession by a person with a family-violence conviction or protective order. 18 USC § 922(g)(8). | Up to 10 years in jail. | Up to a $250,000.00 fine. |
On a related note, if a person uses, carries, or possess a firearm in furtherance of a "crime of violence" or during a "drug trafficking crime," then that person can also be charged with an additional gun crime under 18 USC § 924(c). These 924(c) crimes carry stiffer penalties that run consecutive to the underlying drug offense or crime of violence.
San Antonio Gun Crimes Defense Attorney.
Federal weapons carry serious jail time. However, not all gun charges lead to convictions. That is because in many cases, prosecutors cannot link the person to the gun. Or, there maybe a good reason the person had the gun. If you are charged with a federal gun crime in San Antonio, then you should speak with an experienced defense attorney to discuss your options.
Genaro R. Cortez
Phone: 210-733-7575