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AGGRESSIVE DEFENSE OF FEDERAL FIREARMS CASES

Federal firearms convictions carry years in federal prison. Federal laws and sentencing guidelines call for lengthy prison terms, especially for people with prior criminal convictions. Federal prosecutors can take what might seem like a simple firearms possession or drug distribution case and tack on multiple charges resulting in severe back-to-back sentences. There is no parole in the federal system, so people serve the majority of their sentences, minus a small percentage of time for good conduct credit. With so much at stake, a federal firearms case requires an experienced federal defense attorney. 

Federal laws and sentencing procedures are significantly different than they are in state court. Before hiring any attorney in a federal case, read reviews online (like at www.avvo.com), ask people who know about the federal criminal justice system for recommendations or referrals, and interview the attorneys carefully. Ask potential defense attorneys about their level of familiarity and experience with federal laws, federal investigations, U.S. Sentencing Guidelines, and federal trials. 

If you have any questions along the way, please do not hesitate to contact Springstead Bartish Borgula & Lynch for a free consultation over the phone: (888) 536-5900. Our award-winning federal criminal defense firm includes a former U.S. Attorney, four former federal prosecutors, two former FBI agents, and two former Army JAGs. Our attorneys have the experience and skill to defend clients facing federal charges. 

What Makes It a Federal Case?

Most firearms charges can be prosecuted in either federal or state court.  Cases that end up in federal court usually result in higher sentences than they would in state court because of federal mandatory minimum and maximum sentencing laws, as well as the U.S. Sentencing Guidelines. 

The reasons behind why a case ended up in federal court might not be obvious. Any number of factors can determine if a case will be prosecuted in federal rather than state court, including if the case involves:

  • An investigation or arrest by a federal agency (including the Federal Bureau of Investigation (FBI); Drug Enforcement Agency (DEA); the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); Homeland Security Investigations (HSI), and U.S. Customs and Border Protection (CBP))
  • An investigation or arrest by a task force that involves multiple local, state, and/or federal agencies
  • An international investigation
  • A federal informant or cooperator 
  • Multiple defendants, co-conspirators, or organized crime 
  • A Federal Firearms Licensee (FFL)
  • Federal property (like military bases, federal prisons, and national parks)
  • Multiple types of crime (like drug dealing in addition to firearms offenses)
  • Activity in more than one state or county
  • Certain firearms or devices regulated by federal law (like machineguns, sawed-off shotguns, silencers, and firearms without serial numbers)
  • A person with prior felony convictions – especially for drugs or violent crimes – which triggers higher federal mandatory minimum sentences
  • Threats or harm to a person of federal interest (like a federal agent, government official, or government cooperator)
  • Aggravating circumstances (like use of violence)
  • Using the mail or internet to facilitate crime 
  • Previous convictions for drug or violent crime offenses

Federal charges can be initiated in one of three ways: a grand jury “indictment,” an “information,” or a “criminal complaint.” In federal felony cases, the U.S. Constitution requires that the prosecutor present the case to a grand jury to decide whether charges should be issued. A grand jury is comprised of 16-23 members of the public who are called to serve on jury duty. Sometimes federal prosecutors use a criminal complaint or an information as a faster way to issue charges — particularly when a grand jury is not in session. 

All three methods require the same level of proof: probable cause that a crime has been committed. But the process is different. For “criminal complaints” and charges by “information,” a judge decides that there is probable cause to believe a crime has been committed, as opposed to a grand jury making that determination. In a felony, the government has a limited amount of time to bring the case before a grand jury, or the charges must be dismissed.  

Federal Firearms Charges

Federal firearms crimes fall into five main categories:

  • People prohibited from possessing firearms 
  • Types of firearms prohibited by federal law
  • Firearms connected to crimes of violence or drug crimes
  • Dishonesty during a firearms purchase
  • Federal Firearms Licensee (FFL) offenses by licensed dealers

People Prohibited from Possessing Firearms or Ammunition

Federal law makes it a crime for certain types of people to possess firearms or ammunition. “Possession” includes holding the firearm for someone else, even temporarily. The person does not have to be the owner of the gun — simply holding, carrying, storing, or borrowing it can be enough. 

Federal law prohibits a person from possessing a firearm who: 

  • Has a prior felony conviction
  • Is a fugitive from justice
  • Is a user or addict of controlled substances 
  • Is illegally in the U.S.
  • Was dishonorably discharged from the military
  • Is under a domestic violence restraining order
  • Is presently under federal indictment
  • Has ever been committed involuntarily to a mental institution 

And others. The sentence for any of these offenses is up to 10 years in prison. Federal law also prohibits people from selling or transferring a firearm or ammunition to someone they knew or had reason to believe falls into one of these categories, and the penalties are the same. 

The firearms offense that federal prosecutors most commonly charge is being felon in possession. (18 U.S.C. § 922(g)) A “felon” is defined as a person who has a previous conviction anywhere in the country for a crime in which the sentence could have been one year or more in prison. It does not matter if the judge actually imposed a sentence less than one year. If the prior sentence could have been a year or more, then it means the person can no longer possess a gun under federal law. The prior conviction can be for any type of crime and is not limited just to other firearms crimes, drug offenses, or any other particular crime.

For example, if someone has a prior drug conviction where the penalty could have been up to 2 years in prison, but the judge ordered a sentence of only 8 months, then that still counts as a prior felony conviction because the possible sentence was more than a year in prison. That person is prohibited from carrying a firearm under federal law. It also does not matter if the state where the prior conviction occurred considers the previous conviction a misdemeanor. If the possible sentence could have been one year or more, then it counts as a “felony” for purposes of being a felon in possession of a firearm. 

The fact that state law might allow the person to possess a firearm does not matter, and the federal government can still charge the person with a federal crime. The only exceptions are if the state has restored the person’s rights to possess firearms after a felony conviction, or the prior felony conviction was expunged. An experienced federal defense attorney will examine whether one of these exceptions applies and present evidence that could result in the dismissal of charges. 

Armed Career Criminal Act

If a person is convicted of being a felon or other prohibited person in possession of a firearm, then certain previous convictions for drug offenses or violent crime can enhance the mandatory minimum sentence under the Armed Career Criminal Act (18 U.S.C. § 924(e)). Normally, the mandatory minimum and maximum sentence is 0-10 years for being a felon or other prohibited person in possession of a firearm. But under the Armed Career Criminal Act, if the person has three prior convictions for a “violent felony” or a “serious drug offense,” then the mandatory minimum and maximum sentence jumps up to 15 years to life in prison. Here is a good summary of how and when the Armed Career Criminal Act applies in different situations. 

Firearms Prohibited by Federal Law

Federal law prohibits anyone from possessing certain types of firearms, ammunition, and other devices (like explosives and silencers). For example, it is a crime to knowingly receive, store, transport, possess, or sell any firearm or ammunition that has been stolen, or any firearm with an obliterated or missing serial number. (18 U.S.C. 922(i)-(l)) This applies to all types of guns and ammunition, including handguns. The maximum potential sentence for these types of offenses is either 5 or 10 years in prison, depending on the specific violation. 

The National Firearms Act (NFA) also allows the federal government to regulate certain firearms and devices it deems especially dangerous. (26 U.S.C. § 5845(a)) That includes, for example:

  • Machine guns
  • Silencers
  • Sawed-off shotguns with a barrel less than 18 inches long
  • Sawed-off rifles with a barrel less than 16 inches long
  • Other weapons that are less than a certain length and are made from shotguns or rifles
  • Other destructive devices

Federal law requires that these types of firearms and devices are properly registered, taxed, and manufactured or sold under federal laws. It is a crime to receive or possess one of these firearms or devices that has not been federally registered to the person, to obliterate or remove the serial numbers, or commit a variety of other similar offenses under 26 U.S.C. § 5861. The penalty for any of these violations under the National Firearms Act is up to 10 years in prison. 

Firearms Connected to Crimes of Violence or Drug Crimes

The federal penalties are severe if a person had a gun during another crime. For example, if a person used or carried a firearm during and in relation to a crime of violence or drug trafficking crime, then the mandatory minimum sentence is 5 years. (18 U.S.C. § 924(c)) If the person “brandished” the firearm during the crime of violence or drug trafficking crime, then the mandatory minimum increases to 7 years. If shots were fired, then the mandatory minimum increases to 10 years in prison. A prior conviction under this statute triggers a mandatory minimum 25-year sentence. 

The same penalties apply if the person possessed a firearm in furtherance of a crime of violence or drug trafficking crime. The difference between “possessing in furtherance of” and “using or carrying during and in relation to” a crime is subtle but important. 

  • Possessing a firearm in furtherance of a drug trafficking crime or crime of violence: If the person is charged with “possessing a firearm in furtherance of a drug trafficking crime or crime of violence” under 18 U.S.C. § 924(c), then the government must prove that the person possessed the firearm “in furtherance” of the crime. It is not enough to show that the person owned or possessed a gun at the time of the offense. The possession of the weapon must have been “in furtherance” of the crime, meaning that it advanced or assisted the crime in some way. 
  • Using or carrying a firearm during and in relation to a drug trafficking crime or crime of violence: Actually using or carrying a gun during the crime is more severe than simply possessing a gun (like back in the car or at home), and so for this prong of 924(c), the government does not have to prove that the using or carrying of the firearm advanced the offense. Rather, the government need only prove that the person used or carried the firearm at some point during the criminal conduct (“during”) and that the person had the firearm for some reason related to the crime (“in relation to”). 

In many cases, the government cannot prove that the person possessed a firearm “in furtherance of” the offense, or that the person used or carried the firearm “during and in relation to” the offense. For example, a firearm left inside a vehicle during a drug purchase might not count. A firearm left inside a house with drugs, baggies, a digital scale, and a safe of cash is debatable, depending on where the firearm was specifically and other facts of the case. Threatening to use a firearm for some reason not directly related to the offense also might not count. An experienced federal defense attorney can exploit flaws in the government’s case by showing that the government cannot prove the firearm was used “in furtherance of” or “during and in relation to” the crime. 

A qualified federal defense lawyer can also attack whether the offense qualifies as a “crime of violence” or a “drug trafficking crime,” in which case the 924(c) charge might not even apply. If the case goes to trial, an experienced federal defense lawyer can expose weaknesses in the prosecution, including the unreliability of witnesses and government cooperators, weak and circumstantial evidence surrounding ownership and possession of the gun, and illegal or improper searches and traffic stops. An acquittal or dismissal on a 924(c) charge can have a major effect on a person’s life.

Dishonesty During a Firearms Purchase

Federal law also prohibits people from lying during the purchase of firearms and ammunition from licensed dealers, including false statements on the purchase or background form. (18 U.S.C. §§ 922(a)(6) and 924(a)(1)(A)) It is also a crime to ask someone else to make a false statement on a form or to pretend to be the real buyer, which constitutes a “straw purchase.” The false statement must be one that was either intended or likely to deceive the firearms dealer into making the sale. Whether the dealer was actually deceived is irrelevant. It can be difficult for the government to prove that the statement was knowingly false, that it was material, or that the person was in fact a “straw purchaser.” An experienced defense attorney will explore all of these possibilities to obtain the best possible result. 

Federal Firearms Licensee (FFL) Offenses 

Record-keeping violations for Federal Firearms Licensees (FFLs) can involve either the failure to make proper records or making false statements on the Form 4473 or other records that the FFL is required to keep. (18 U.S.C. §§ 922 and 924) These offenses are usually, but not always, misdemeanors. If the government proves that the record-keeping errors or omissions were willful or deliberate, then the crime could be a felony. Either a misdemeanor or felony charge could seriously jeopardize the person’s livelihood as a federally licensed firearms dealer. Any investigations in FFLs require expert advice from a federal firearms attorney. 

Pretrial Detention and Bond

In a federal firearms case, the court can order a defendant to be locked up pending trial, rather than being released on bond. In deciding whether someone facing federal charges should be released or detained in jail, the judge will consider whether the defendant presents a danger to the community or a risk of non-appearance at future court hearings. To make the decision, the judge will hold a hearing to learn more about the person’s criminal history and personal character, the severity of the offenses charged, the potential that the defendant will attempt to threaten or intimidate witnesses, and other factors. If the judge does not order detention, the judge will set a bond that may require the defendant to be monitored by a supervising court officer, submit to drug testing, live in a certain place or with certain people, not travel outside the district, maintain employment, and other restrictions. The judge may also require the bond to be “secured” by cash or property, which the court can seize if the defendant violates conditions of the bond or fails to appear in court. 

Federal Trial Preparation and Evidence

By the time the government charges a defendant, prosecutors and investigators have usually been working on the case for a long time. A defendant does not have as much time to develop a strategy and come up with a defense, especially in a complex conspiracy charge. 

The federal “Speedy Trial Act” requires trials to take place within specified time limitations unless certain exceptions apply. While the law, by its name, was meant to protect the rights of defendants to a timely trial, one of its unintended effects is that it shortens the amount of time for the defendant to develop a strong strategy. Because evidence in federal cases is often voluminous and has been available to the prosecuting attorney much longer than the defendant, this has the potential to put defendants and their attorneys on their heels. 

The defense can gain access to the government’s evidence in a number of ways. In the pretrial “discovery” process, the government is required to disclose a limited amount of information about the evidence it intends to use at trial. An independent investigation by the defense attorney can be a critical step to finding out more about the government’s case. An experienced criminal defense attorney will use any lawful means at his or her disposal, including public records review, interviews, and research, to challenge the government’s evidence and its theory of the case. The Freedom of Information Act (FOIA) and other federal laws also allow the defense to obtain public records from government agencies under certain circumstances. While there are exceptions to FOIA that can delay or prevent production, the statute provides opportunities to learn facts the prosecuting attorney is not otherwise required to disclose to the other side.

An experienced federal criminal defense attorney can press the government to disclose more of its evidence and information, request additional time as needed to prepare a defense, and obtain additional information through FOIA and other means. 

Sentences for Federal Gun Convictions

In the federal system, the sentence depends on two factors: (1) the mandatory minimum and maximum sentences under the statute, and (2) the advisory range under the U.S. Sentencing Guidelines. The mandatory minimum and maximum sentences are the ones set by statute in the United States Code, like under 18 U.S.C. 924(c). These are referred to as “statutory” penalties because they are set by law. The judge cannot go above or below the statutory penalties, except in limited circumstances specified by law (like for the defendant’s substantial assistance to the government, or the “safety valve” laws for non-violent drug offenders). On the other hand, the U.S. Sentencing Guidelines are advisory rather than mandatory: the judge must calculate and consider them in order to help decide what the exact sentence should be within the allowable statutory penalty range. The judge can decide to go above or below the guidelines range, with legitimate reasons. An experienced federal defense attorney can challenge the legitimacy of a judge’s decision to go above the guidelines range, and can advocate that the judge go below the guidelines. 

Here is an example of how the sentencing guidelines work. In a conviction for being a felon in possession of a firearm, the “statutory” penalty is anywhere from 0 to 10 years under 18 U.S.C. § 922(g) and § 924(a)(2). The judge will use the U.S. Sentencing Guidelines to determine what the actual sentence should be within that range. 

Situation 1:

A typical calculation could look something like this:

2K2.1(a)(4) Base offense level for felon in possession with 1 prior conviction for crime of violence or controlled substance offense 20
2K2.1(b)(4)(B) Firearm had an altered or obliterated serial number +4
2K2.1(b)(1)(A) Three firearms +2
Total offense level for this count 26

 

If the defendant has no other criminal history besides the prior conviction for a crime of violence or controlled substance offense, then the defendant might be in Criminal History Category II. With an offense level of 26 and a Criminal History Category of II, the guidelines range would be 70-87 months (approximately 6-7 years).

Situation 2: 

Taking the same example above, an experienced federal defense attorney could argue that the prior conviction does not count as a “crime of violence or a controlled substances offense” and that the defendant was not responsible for one of the three firearms. The result could be, for example:

2K2.1(a)(7) Base offense level for felon in possession (no qualifying prior offenses) 12
2K2.1(b)(4)(B) Firearm had an altered or obliterated serial number +4
Total offense level for this count 16

 

At offense level 16 and Criminal History Category II, the guidelines range would be 24-30 months (2-2.5 years).

If the defendant pleads guilty and does so in a timely manner according to the prosecutor’s deadlines, that could result in a 3-point reduction, bringing the offense level down to 13, which would bring the guidelines range down to 15-21 months (approximately 1-2 years). Based on the defendant’s personal circumstances, the defense attorney could argue for a downward variance below that guidelines range. 

This example is one of countless combinations of scoring factors and demonstrates the impact of a strong defense at sentencing. Because every case is different, it is important to connect with an experienced federal defense attorney to discuss the potential guideline range in any particular case.

This online sentencing calculator is based on the U.S. Sentencing Guidelines and provides a good starting point for what a federal drug sentence might be. It is important to note that the final guidelines determination is made by the judge at the sentencing hearing. 

Sentencing Trends and Averages in Federal Drug Cases

According to the United States Sentencing Commission, firearms offenses makeup approximately 10% of all federal criminal cases nationwide and are among the top four most prosecuted cases, along with drug trafficking, immigration, and fraud/embezzlement. In the Sixth Circuit — which includes Michigan, Ohio, Kentucky, and Tennessee — firearms offenses comprise approximately 17% of all federal cases. 

The average sentence for federal firearms offenses nationwide and in the Sixth Circuit (Michigan, Kentucky, Tennessee, and Ohio) is approximately 53 months (4.4 years). 

In approximately a quarter of all federal cases, the guidelines called for an even higher sentence, but the judge issued a “downward variance” and imposed a sentence below the guidelines range. The judge can vary downward below the guidelines range for any number of reasons — for example, if the defendant: 

  • Has a non-violent history
  • Engaged in criminal activity over a short period of time
  • Has a strong personal history of employment or other positive community involvement
  • Has not previously served a lengthy prison sentence
  • Is a dedicated and responsible family member providing for others
  • Had a difficult upbringing or circumstances that explain a path towards criminal activity
  • Shows genuine remorse and a desire to reform
  • Does not need a lengthy prison term to be deterred from committing future crimes

A skilled federal defense attorney who understands the nuances of federal sentencing law can advocate for these reasons, among others, for a downward variance. Having a skilled federal defense attorney is a critical component of obtaining a downward variance. 

For more information on sentencing statistics nationwide and in the Sixth Circuit, visit the United States Sentencing Commission Quarterly Sentencing Updates [https://www.ussc.gov/research/data-reports/quarter/quarterly-sentencing-updates] and Sixth Circuit Federal Sentencing Statistics [https://www.ussc.gov/research/data-reports/geography/2018-federal-sentencing-statistics]

Federal Defense Attorneys

Federal firearms charges are serious and can carry severe sentences. You need experts on your side to face the federal government. The federal criminal defense attorneys at Springstead Bartish Borgula & Lynch, PLLC are extremely knowledgeable when it comes to avoiding, defending, or minimizing the fallout from federal charges. Our lawyers are honest and trustworthy and include former federal prosecutors, a former US Attorney, former FBI agents, and former Army JAG attorneys. 

Our lawyers spent years building cases for the federal government and know how to defend you and your best interests smartly and effectively. Our firm is devoted to criminal defense, both in state and federal court. We work throughout Michigan and in federal courts around the country. Our attorneys know the federal system inside and out, take time to explain what can seem like a foreign process, and are able to lay out a strategy for a successful resolution of the case quickly and effectively, whether that includes negotiating a favorable plea agreement, challenging an illegal search and seizure, or taking the case to trial. 

In order to try and win your case or get you the best result possible, our firm of expert federal criminal defense lawyers will:

  • Carefully review the evidence against you.
  • Discuss the case in detail with you and keep you updated as the case evolves.
  • Identify weaknesses in the prosecution’s case.
  • Identify mistakes that were made in the investigative or charging process.
  • Challenge any illegal searches and seizures or violations of your Miranda rights.
  • Advise on and advocate for bond while awaiting trial.
  • Estimate your sentencing guideline range if you were to be convicted of the offense.
  • File motions to vary downward from the applicable guideline range, where appropriate.
  • Seek alternatives to incarceration, such as pretrial diversions, lesser charges, or probation.
  • Explore the benefits of cooperation.
  • Present evidence/arguments to mitigate any sentence.
  • Be ready for trial.
  • Appeal unlawful sentences or convictions.

Call Federal Criminal Defense Attorneys Now for a Free Consultation 

If you have been charged with a federal crime, call Springstead Bartish Borgula & Lynch, PLLC at our Grand Rapids office at (616) 458-5500 or our Fremont office at (231) 924-8700, or contact us online to schedule your free consultation.

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