Generally

“Felon in Possession of a Firearm” is very often used when someone with a felony conviction simply possesses a firearm. It is regularly referred for federal prosecution when police find a handgun or rifle near a person arrested or detained. There often is not a federal investigation underway that leads to a Felon in Possession of a Firearm charge. This charge can be referred federally when the detained person appears to be in possession of the weapon.

One key requirement for prosecution is that the person has a felony conviction. This means that the person had a conviction of record for a felony case when he possessed the firearm. The felony can be any type of felony crime – drugs, violence, fraud, computer crimes, or any other felony. The felony conviction can be from either federal court or state court. The person convicted of a felony charge is known as a “felon.”

The other key requirement for this charge is possession, and not ownership. That is, a person with a felony conviction can be prosecuted for simply possessing a firearm, not owning one. So, a person who borrows a firearm or has one in his possession for another reason can be prosecuted.

Firearm

A “firearm” is what we commonly call a “gun” or a “weapon.” It can be a handgun or rifle, and it must be capable of expelling a projectile (bullet) when “fired.” The firearm must be considered in operable condition when the felon possesses it in order to support a charge.

Many Are Prosecuted in Federal Court

Possessions of firearms are commonly referred for federal prosecution, even when there had not been a federal investigation. This is because these cases are relatively easy to investigate, and they are not factually complex. Also, cases overall in federal court can produce harsher sentences due to the U.S. Sentencing Guidelines. The U.S. Sentencing Guidelines is a point system that recommended a range of imprisonment for federal convictions. “Felon in possession” cases usually carry lower sentences than most federal cases. Nonetheless, like just about all federal prosecutions, the Sentencing Guidelines recommend some amount of prison time. Occasionally, a federal investigation will result in a felon in possession case, submitted as one of various charges.

ATF Investigates Local Arrests

The Bureau of Alcohol, Tobacco and Firearms (“BATF” or “ATF”) regularly identifies persons arrested with a weapon. ATF agents do this to determine if the arrested person is a felon. If so, the ATF can make a federal case by referring the arrest to the U.S. Attorney for federal prosecution. Although ATF agents refer these as federal cases, local police can also refer felon in possession cases for federal prosecution.

Felony Convictions From Years Ago Can Be Used

Any conviction, even one many years old, can be used as the basis for a felon in possession charge.

Interstate Nexus from the Firearm

The U.S. Supreme Court has affirmed that the subject firearm has to have traveled in interstate commerce for federal cases. The interstate travel does not have to occur at the same time of the charge. The firearm has to have moved in interstate commerce at some remote time.

Gray Areas

Whether the person possessed the firearm, or intended to possess it, often depends on the circumstances. A question may exist about possession if a weapon is found in someone else’s car in which he is riding. Another such question comes from the
subject person being in another person’s residence where there are firearms. Another example of questionable intent is when the subject person demonstrates that he did not know the firearm was near.

A felon can be near a firearm and not know it, or not have the intent to possess the firearm. The prosecution has to prove beyond a reasonable doubt that the subject person had the intent to possess the firearm.

State Cases for Firearm Possession After Felony Conviction

States have their own firearm laws, including a version of Felon in Possession of a Firearm. The Texas law is similar to federal law that prohibits a person convicted of a felony from possessing a firearm. The Texas state law is titled “Unlawful Possession of a Firearm.” This law makes it unlawful for possession of a firearm within five years of release from custody or supervision.

Contact Attorney John Teakell

If you have been arrested, or if you are under investigation for firearm charges, contact former federal prosecutor John Teakell. Mr. Teakell will use his experience to defend against firearm charges or any criminal case.