Federal Firearms Enhancements

I. Generally

Title 18 of the United States Code is where federal firearm laws are found, including violations of possession by a prohibited person, which includes a person who has been convicted of a felony.  Often, an arrest wherein a handgun or other firearm is found, the ATF will “adopt” a local arrest / case and submit it to the U.S. Attorney’s Office to prosecute it as a federal case.  Or local police officers will submit it directly to the U.S. Attorney for federal prosecution.

Federal prosecutions for firearm cases are attractive for agents and officers, as often there is a smaller amount of follow-up investigation than a traditional federal prosecution of a federal case.  Plus, when enhancements to the U.S. Sentencing Guidelines apply to the sentencing guidelines calculations, the recommended range of prison incarceration significantly increases, if not doubles, the recommended time for a plain possession of a firearm by a convicted felon.

II. 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 definition of a firearm in the U.S. Code is:

“The term “firearm” means (A) 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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.”

III. U.S. Sentencing Guidelines Calculations

When a person is convicted of a firearms crime in federal court, whether by a jury or by a plea of guilty, the U.S. Sentencing Guidelines will calculate a range of recommended punishment.  The court can follow the range or depart from it, depending on the circumstances and arguments of the attorneys.

When a defendant’s Pre-Sentence Report is written prior to sentencing, it contains a draft of the proposed Sentencing Guidelines calculations.  The attorneys can accept them or object to them prior to sentencing. 

IV. U.S. Sentencing Guidelines – Unlawful Receipt, Possession, or Transport of Firearms

Section 2K2.1 of the U.S. Sentencing Guidelines governs firearms sentencing calculations for several common federal crimes, including Possession of a Firearm by a Felon, Possession of a Firearm by a Prohibited Person, Unlawful Transfer of a Firearm, and Unlawful Transport of a Firearm.  Section 2K2.1 reads in pertinent part as follows:

“(a) Base Offense Level (Apply the Greatest):

(1) 26, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense;

(2) 24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense;

(3) 22, if (A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense;

(4) 20, if—

(A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; or

(B) the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine; or (II) firearm that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I) was a prohibited person at the time the defendant committed the instant offense; (II) is convicted under 18 U.S.C. § 922(d); or (III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person;

(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a);

(6) 14, if the defendant (A) was a prohibited person at the time the defendant committed the instant offense; (B) is convicted under 18 U.S.C. § 922(d); or (C) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A) and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person;

(7) 12, except as provided below; or

(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m), (s), (t), or (x)(1), or 18 U.S.C. § 1715.

(b) Specific Offense Characteristics

(1) If the offense involved three or more firearms, increase as follows:

(2) If the defendant, other than a defendant subject to subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level determined above to level 6.

(3) If the offense involved—

(A) a destructive device that is a portable rocket, a missile, or a device for use in launching a portable rocket or a missile, increase by 15 levels; or

(B) a destructive device other than a destructive device referred to in subdivision (A), increase by 2 levels.

(4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or obliterated serial number, increase by 4 levels.

The cumulative offense level determined from the application of subsections (b)(1) through (b)(4) may not exceed level 29, except if subsection (b)(3)(A) applies.

(5) If the defendant engaged in the trafficking of firearms, increase by 4 levels.

(6) If the defendant—

(A) possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; or

(B) used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

(7) If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition, increase to the offense level for the substantive offense.”

V. Enhancements Increase Sentence Recommendation

Possessions of firearms charges are commonly referred for federal prosecution.  Charges in federal court can produce harsher sentences  than state court prosecutions due to the U.S. Sentencing Guidelines.  If the person who transported or received a firearm has a felony conviction, that could result in the federal charge of felon in possession of a firearm.

The Bureau of Alcohol, Tobacco and Firearms (“BATF” or “ATF”) regularly checks arrests for persons with a weapon.  ATF agents do this to determine if the person is a felon, or to refer other cases to the U.S. Attorney for federal prosecution, including transportation or receipt of a firearm with intent to commit a felony. 

VI. Common Enhancements

A. “In Connection with Another Felony Offense”

The Sentencing Guidelines includes a few enhancements that increases the recommended range of imprisonment, including “in connection with another felony offense.  This means that if the government has credible evidence that the firearm (or any ammunition) found in the possession of the defendant was used in connection with other criminal activity, or was to be used in any other criminal activity, such as trafficking drugs, transporting counterfeit monies or counterfeit goods, laundering monies, or other felonies, then the enhancement points will be added to the Sentencing Guidelines calculations for a recommended imprisonment range.

§2K2.1 of the U.S. Sentencing Guidelines, listed above, shows in 2K2.1(b)(6)(B), that if a defendant:

“(B) used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.”

B. Firearm Deemed to Be Stolen

If the defendant possessed a firearm that is determined to be stolen, even if the defendant did not know it, the defendant will or can have two (2) points added to the Guidelines calculations.  This enhancement appears in 2K2.1(b)(4)(A), listed above, which reads:

“(4) If any firearm (A) was stolen, increase by 2 levels” 

C. Altered or Obliterated Serial Number

If the defendant possessed a firearm that has an altered or obliterated serial number, the defendant will or can have four (4) points added to the Guidelines calculations.  This enhancement appears in 2K2.1(b)(4)(B), listed above, which reads:  

“(4) If any firearm … (B) had an altered or obliterated serial number, increase by 4 levels.”

D. Illegal Transport / Transfers

If the defendant possessed a firearm while attempting to leave the United States, or transferred the firearm knowing that it is to be transported out of the United States, the defendant will or can have four (4) points added to the Guidelines calculations.  This enhancement appears in 2K2.1(b)(6)(A), listed above, which reads:  

“(6) If the defendant—

(A) possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; increase by 4 levels…”

E. Trafficking in Firearms

If the defendant possessed a firearm while engaging in trafficking in firearms, the defendant will or can have four (4) points added to the Guidelines calculations.  This enhancement appears in 2K2.1(b)(5), listed above, which reads:

“(5) If the defendant engaged in the trafficking of firearms, increase by 4 levels.”

This means that if a person possesses a firearm while illegally engaged in trafficking firearms, then this enhancement would apply, and the four (4) points would be added to the Guidelines calculations.  The illegal acts would be selling or otherwise trafficking firearms without a federal firearms license.

VII. Possession v. Ownership

Keep in mind that an illegal possession of a firearm case is based upon possessing the weapon, not owning it.   A person can possess a firearm in a car, house, or on his person, without owning it.

VIII. Possession of Firearms Charges Can Produce a Long Imprisonment Recommendation for Sentencing 

A possession of a firearm charge in federal court can become a fight to decrease the Sentencing Guidelines imprisonment range for sentencing.  What was seemingly a plain possession of a firearm by a prohibited person (prohibited from possessing a firearm due to a felony conviction, court order, or otherwise), can potentially result in a heftier sentence than expected due to the enhancements spoken of herein.

Whether the enhancements are determined to apply will ultimately be decided by the district judge.  The defendant has the right to object to the proposed enhancements based upon the application of the facts to the particular enhancements.  The court will then decide if any apply, which will determine the recommended imprisonment range. 

IX. Contact Attorney John Teakell

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