Every year, we receive numerous calls from people who require representation in federal or state criminal prosecutions for illegally possessing firearms. In the typical case, a person unexpectedly finds him or herself subject to criminal prosecution because s/he is not a U.S. citizen (and does not possess an appropriate visa) or has a criminal record that prohibits possession of a firearm, ammunition or a wide-range of items that are deemed to be “explosives.” Persons accused of domestic violence are also frequently caught in the net of regulation that prohibits some from possessing a firearm. Moreover, because of Arizona’s proximity to the Mexican border, federal authorities, such as the Bureau of Alcohol, Firearms and Tobacco (the “ATF”), have prioritized the investigation and prosecution of these cases. If you have been charged with a firearms offense, or an offense that might strip you of your right to possess a firearm (such as any felony or any domestic violence offense), we strongly suggest that you obtain representation by a reputable criminal defense attorney.
Prohibited Firearm Possessors: 18 USC § 922
Federal and state law forbids many people from possessing a firearm, ammunition and other items and enforces this prohibition through criminal prosecution and punishment. 18 U.S.C. § 922(g); A.R.S. §§ 13-3101(A)(7), 13-3102. The most well-known category of “prohibited possessor” is persons convicted of a felony. But few people know that conviction for certain relatively minor crimes, provided they relate to domestic violence, will also strip a person of his or her Second Amendment rights. 18 U.S.C. § 922(g)(9). Further, persons who are subject to some (but not all) domestic violence-related restraining orders may also lose the right to possess a firearm even if never prosecuted or convicted of any crime. 18 U.S.C. § 922(g)(8). Further, state and federal law differ in some apparently small, but sometimes crucial, ways that may leave a person surprised and confused about his or her rights. For example, Arizona criminal law does not specifically prohibit possession of ammunition, though a defendant will be required to give up any ammunition as a condition of supervised probation. A.R.S. §§ 13-3101; AZ ST Code of Jud. Admin., § 6-207. Under federal law, a “prohibited possessor” may be prosecuted for possession of ammunition. 18 U.S.C. § 922(g).
Non-Citizens and Weapons
Persons illegally present in the U.S. and most persons who hold a nonimmigrant visa are also subject to federal and state criminal prosecution for possessing a firearm and/or ammunition. 18 U.S.C. 922(g)(5); A.R.S. 13-3101(a)(7)(e).
Penalties: Federal Sentencing Guidelines for Firearm Violations
The federal government takes violations of firearms laws seriously, an attitude reflected in the complex, but clearly punitive sentencing scheme applied to firearms offenders. When sentencing a criminal defendant, the courts must take into account, in addition to the usual factors, the number of firearms involved, the kind of firearm, whether the defendant has a violent or drug-related criminal record and whether he or she possessed the firearms in connection with another felony offense. For a prohibited possessor who merely possessed a simple handgun, but who has no previous criminal record, the U.S. Sentencing Guidelines recommends a 15-21 month term of imprisonment, though this range may be adjusted upward or downward based on other factors. U.S.S.G. § 2k2.1. Prohibited possessors with a criminal history and convicted of possessing more or more deadly weapons face even stiffer penalties.
Under Arizona law, simple possession of a firearm by a prohibited possessor is a class 4 felony. A.R.S. § 13-3102(L). Even assuming that a defendant has no previous criminal record and no other facts indicate a greater punishment is required, the defendant would still be at risk for at least a one-year term of imprisonment.