Under 18 USC 922, it is federal crime for a felon to possess a gun or firearm. One exception is in Florida state court, if you receive a withhold of adjudication after pleading nolo contendere (no contest), you are technically not a convicted felon. However, in Florida state court, if you plead guilty and get a withhold of adjudication, you are for Federal purposes, a convicted felon.  Also, even if you plea no contest, if you are adjudicated guilty, you are a convicted felon.  That can be the predicate for an Armed Career Criminal Act sentence.

If the State board of pardons and paroles where you were convicted restores all of your civil rights (including your right to carry a gun, which is a separate application) you are no longer a convicted felon. Then, you could not be convicted of possession of a firearm by a convicted felon. You should get your civil rights restored if you have a felony conviction. If the Feds convict you, you must get your rights restored through the Feds.

Generally, 18 USC 922 is a strict liability statute. That means that generally the state of mind of the defendant is irrelevant.    However, entrapment by estoppel, justification and insanity may all be raised as defenses.

Another defense to possession of a firearm by a convicted felon is entrapment by estoppel. Generally, this is when a government official tells you it is ok to possess a gun and you believe that person. However, entrapment by estoppel does not apply if one government gives you the wrong advice and another government prosecutes you. For instance, if a State court judge says you are not a convicted felon, the Feds could still prosecute you if you are a convicted felon.

is also a defense of possession of firearm by a convicted felon. The defendant must show that the defendant was under unlawful and present, imminent, and impending threat of death or serious injury, the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct, the defendant had no reasonable legal alternative to violating the law and there was a direct causal link between the criminal action and the avoidance of the threatened harm.

Insanity is rarely used as a defense in gun cases.  However, it is an affirmative defense to a gun charge.

What if the gun is not found on your person? You may have a defense via a constructive possession case at trial. Constructive possession requires both the intent and the power to exercise dominion and control over the gun. Let’s say the gun was found in a briefcase of your friend – even after you and your friend just completed a burglary.  That’s not enough for the government to convict you.

18 USC 924(c) makes it a crime to use or carry a gun in relation to any crime involving violence or drug trafficking.

Use

Just hiding a gun nearby, generally, is not enough to convict under the “use” of a firearm.   Using a firearm during and in relation to a crime of violence or a drug trafficking crime requires proof of active employment of the firearm.    Possession of a gun in a bag in the locked trunk of a car or in a locked footlocker in a bedroom closet generally doesn’t constitute use.  This assumes the defendant was smart enough to keep his mouth shut.

Carrying

To be convicted under the “carry” prong of 924(c), it is enough if the gun is carried in the glove compartment or under the floor mat of a car from which drugs are distributed. A gun carried in the trunk of car and/or a gun carried to where a drug deal is going down is sufficient for a conviction.

However, you can’t be convicted under the carry prong if the government just proves simple possession of the firearm – if it is not transported.

Consecutive sentencing for Firearms convictions under 924(c)

The sentence imposed must be served consecutively (after) any other sentence. If there are multiple 924(c) convictions, they also must be served consecutively. For instance, a second 924(c) conviction requires a 20 year sentence.

There are mandatory minimum sentences under this section. For instance, if the firearm was brandished, 7 years, discharged, 10 years to life, short-barreled rifle or short barreled shotgun, 10 years, machine gun, 30 years. Also, there are other sentencing enhancements like the Armed Career Criminal Act, where the defendant has 3 or more prior convictions for violent felonies or serious drug offenses.

ROBBERY WITH A FIREARM - Not Guilty after Jury Trial.

The client, an 18 year old African American, was facing life in prison with a 10 year minimum mandatory sentence. At trial, I was able to prove that the client had no knowledge that the robbery was about to take place. A passenger in the car got out and robbed a lady with a purse. The client then left the scene at a high rate of speed. When the police came up behind the car, everybody, including the client, ran, jumped over two fences, and eluded police for over 3 hours. The judge read my special requested jury instruction on duress. This was critical to our theory of defense. The reason my client ran after the police came up behind him was that the guy who robbed the lady pointed the gun in his general direction and told everybody to “get the f**k out of the car.” My client did not have a choice. He had to get out because he was under duress. The client just graduated high school. He was found not guilty after a jury trial just days before Christmas. His parents told me it was “the best Christmas gift anyone could give” and that “We don’t know how to thank you. You gave us our son back.” At that moment, I have never felt so good about helping other people and being a criminal defense lawyer.