Federal Weapons Offenses

Federal gun laws carry stiff penalties. These laws include 18 USC § 922(g), which creates several federal gun possession crimes. In particular, § 922(g) creates groups of people who are not allowed to possess firearms. These groups include felons, undocumented immigrants, and people with certain family-violence records.

However, these gun crimes raise some basic questions. For example, what exactly is a gun-possession crime? 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.

Which people are banned from possessing a firearm?

The table below contains a list of 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.
18 USC § 922(g) bans these groups of people from possessing firearms. Further, the groups highlighted in bold are the most common types of people who are charged with § 922(g) gun crimes in San Antonio and South Texas.

What is a Federal Felon-in-Possession Gun Crime?

§ 922(g) is a straightforward crime. If you are on the list above, then you are not allowed to possess a firearm. Namely, if you are a felon, then you cannot possess a firearm. This means the prosecutors must prove the following facts to convict a felon of a gun-possession crime:

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 we can see from the table above, the language for a gun crime is technical. Nevertheless, prosecutors like these types of cases because they carry stiff penalties and are not hard to prove. However, there are defenses to federal weapons charges that we will discuss below.

What are defenses to Federal Gun Possession Crimes under 18 USC § 922(g)?

Person not in “possession” of the firearm

San Antonio Gun Possession Crimes
18 USC 922(g) requires prosecutors to prove a suspect is in “possession” of a firearm. This means where the gun is found will be a critical fact in federal gun possession cases.

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, then the issue will be clear cut.

But what if police find the gun in a different location? Such as a house with multiple tenants? Or in a car with multiple passengers? This may create an evidence problem for the prosecutors. And in some cases, the prosecutors may not be able to show that a suspect was in “knowing possession” of the firearm. This is similar to the drug possession issue I previously wrote about.

Duress, Necessity, and Self-Defense

I wrote about the duress defense in our post about drug crimes. Click on the link to see the elements for a duress 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.

The necessity defense is similar to duress. But the threat comes from mother nature instead of a bad actor. To illustrate, assume there is a tornado moments away from killing you. So you break into a stranger’s cellar to escape the threat of the tornado. You broke the law by breaking into someone else’s home. But you are not guilty because you had no real choice. In other words, you broke the law to avoid a greater harm. And that is the basis for both the duress and necessity defenses.

In summary, if a felon can prove he possessed the gun because of duress, necessity, or self-defense, then this can lead to a not guilty verdict.

Knowledge about Legal Status

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 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? 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.

In summary, 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).

Penalties for Federal Felon-in-Possession Gun Crimes

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 CrimeJail TimeFine
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.
18 USC § 922(g) makes it a crime for certain groups of people to possess a firearm. The table above lists the three most common 922(g) offenses in San Antonio and South Texas.

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.

Affordable San Antonio Gun Crime Lawyer

Federal gun crimes carry stiff penalties. However, not all gun charges lead to convictions. That is because in many cases, prosecutors cannot prove the suspect was in possession of the gun. If you are charged with a federal gun crime in San Antonio, then you should speak with an experienced and affordable defense attorney to discuss your options.

Genaro R. Cortez
Phone: 210-733-7575

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
San Antonio Criminal Defense Attorney