How will having a Federal Gun Charge effect my prison Sentence?

Posted by Chris Morales on Sun, Sep 15, 2013 @ 11:10 PM

America's gun law are complicated. Even a lawyer could spend considerable time trying to interpret them. The Federal Criminal Code and Rules book, an annual publication, contains many pages of text on the subject. All legal aspects of guns and their usage are presented in this code. To the layperson, who is unfamiliar with legal jargon, the contents of its material may seem overwhelming.

Presented here is a very simplistic outline showing how common scenarios can affect sentence lengths. Also included are some of the basic definitions.

In general, federal agents have three options for charging a person with a gun crime.

1) They can charge the person with simple possession of gun. See Title 18 U.S.C. Sec 922(g) for details.

2) While executing an unrelated arrest (such as a drug offense) agents or prosecutors will try to draw some connection from the initial crime to a gun. They will claim that the gun was somehow used in furtherance of the crime. See Title 18 U.S.C. Sec. 924 (c) for the possible parameters.

3) Instead of being charged with a gun crime at the time of arrest, the defendant receives an enhancement at the time of sentencing. This means that extra time is tacked onto their sentence relative to the role of the gun in the offense.

In the least serious crime circumstance, a gun can result in receiving the attached base offense levels that are used in the Sentencing Table. The base level, along with elements of criminal history, will determine the sentence range in months of imprisonment. See the section in this book; How does the sentencing table work?

  • Base level 26 applies if the offense involved a firearm as described in Title 26 U.S.C. Sec. 5845(a) or Title U.S.C. Sec. 921(a)(30), and the defendant has at least two prior felony convictions of either a crime of violence or a controlled-substance offense.
  • Base level 24 applies if the defendant has at least two prior felony convictions for either a crime of violence or for controlled substance offense. 
  • Base level 22 applies if the offense involved a firearm as described in Title 26 U.S.C. Sec. 5845 (a) or Title 18 U.S.C. sec. 921(a)(30) and the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
  • Base Level applies if: 

a) the defendant had one prior felony conviction of either a crime of violence or a controlled substance offense or

b) the offense involved a firearm as described in Title 26 U.S.C. Sec. 921(a)(30), and the defendant is a prohibited person or convicted under Title 18 U.S.C. Sec. 922(d).

  • Base level 18 applies if the offense involved a firearm as described in Title 26 U.S.C. Sec. 5845(a) or Title 18 U.S.C. Sec 921(a)(30).
  • Base level 14 applies if the offense involved a firearm as described in Title 18 U.S.C. Sec. 922 (d),
  • Base level 12 applies if the offense is a simple possession of the lowest magnitude. 
  • Base level 6 applies if the defendant if convicted under Title 18 U.S.C. Sec. 922, (c)(e), (f), (m), (s), (t) or (x) (i). These are exceptions to the base 12 level which take into account some legitimate aspect such as having firearms for purposes such as a collection for hunting.

Relative Definitions

"Firearm" includes (i) 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, (ii) the frame or receiver of any such weapon, (iii) any firearm muffler or silencer, or (iv) any destructive device. See Title 18 U.S.C. Sec. 921 (a) (3).

"Ammunition" includes ammunition or cartridge cases, primer, bullets, or propellant powder designed for use in any firearm. See Title 18 U.S.C. Sec. 921 (a) (17) (A).

"Firearm described in Title 26 U.S.C. Sec. 5845(a)" includes: (i) a shotgun having a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun if such weapon as modified as an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; a rifle having a barrel o f less than 16 inches in length; or a weapon made from a rifle if such weapons as length (ii) a machine gun; (iii) a silencer; (iv) a destructive device; and (v) certain unusual weapons defined in Title 26 U.S.C. Sec. 5845(e) which are not conventional, unaltered handguns, rifles, or shotguns. For more detailed definition, refer to Title 26 U.S.C. Sec. 5845.

"Firearm described in Title 18 U.S.C. Sec. 291 (a)(30)" (pertaining to semiautomatic assault weapons) does not include a weapon exempted under the provisions of Title 18 U.S.C. Sec 922 (v)(3). 

“Destructive device” is a type of firearm in Title 26 U.S.C. Sec. 5845 (a). It includes any explosive, incendiary, or poison gas [(i) bomb, (ii) grenade, (iii) rocket having propellant charge of more than four ounces, (iv) missel having an explosive or incendiary charge of more than one-quarter once, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses]; any type of weapon which will or which may be readily converted to expel a projectile by the action of an explosive or any propellant which has any barrel with a bore of more than one half inch in diameter; or any combination of parts either designed or intended fro use in converting any device into any destructive device listed above. For a more detailed definition, refer to Title 26 U.S.C. Sec. 5845 (f).

“Crimes of violence”, “controlled substance offense”, and “prior felony conviction(s)" , are defined in Sec. 4B1.2 (Definitions of Terms Used in Sec. 4B1.1), subsection (a), subsection (b), and Application Note 1of the Commentary, respectively. For purposes of determining the number of such convictions under subsections (a)(1) , (a)(2), (a)(3), and (a)(4), count any prior conviction that receives any points under Sec. 4A1.1 (Criminal History Category).

“Prohibited person”, as used in subsections (a)(4)(B) and (a)(6), means any who: (i) is under indictment for, or has been convicted of, a “crime punishable by imprisonment for more than one year,” as defined by Title 18 U.S.C. Sec. 921 (a)(20); (ii) is a fugitive from justice; (iii) is an unlawful user of, or is addicted to, any controlled substance; (iv) has been adjudicated as a mental defective or involuntarily committed to a mental institution; (v) being an alien, is illegally or unlawfully in the United States; (vi) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner of child as defined in Title 18 U.S.C. Sec. 922(d)(8); or (vii) has been convicted in any court of a misdemeanor or crime of domestic violence as defined in Title 18 Sec. 921(a) (33).

“Felony Offense”, as used in subsection (b)(5), means any offense (federal, state, local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or a conviction obtained.

 

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The Morales Law Firm would like to thank Mad Dogs guide to Club Fed (Instruction Manuel for Newcomers) for sharing this information with us.

Tags: felony, arrest, crime, lawyer, drug offense, gun crime, gun law