Texas Federal Firearms Defense

Federal Firearms Offenses: The Statutory Framework

Felon in Possession — 18 U.S.C. §922(g)(1)

The most commonly charged federal firearms offense. Under §922(g)(1), it is unlawful for any person convicted of a crime punishable by imprisonment for a term exceeding one year to possess, in or affecting commerce, any firearm or ammunition. The base offense carries up to 10 years. With ACCA enhancement, the mandatory minimum is 15 years.

The knowing element. The Supreme Court’s decision in Rehaif* v. United States*, 139 S. Ct. 2191 (2019), held that the government must prove the defendant knew they belonged to the relevant class of persons prohibited from possessing a firearm (that is, they knew they had been convicted of a felony). Prior to Rehaif, the knowledge requirement was less clear. Post-Rehaif, the government must establish that the defendant was aware of their felony status at the time of possession.

Possession: actual versus constructive. Actual possession means the firearm was on the defendant’s person. Constructive possession (which covers the vast majority of federal firearms prosecutions) requires the government to prove that the defendant knowingly had the power and intention to exercise dominion and control over the firearm. A firearm found in a shared residence, a shared vehicle, or in a location the defendant has access to but did not personally handle requires the government to establish affirmative links between the defendant and the firearm beyond mere proximity.

§924(c) — The Mandatory Consecutive Sentence

18 U.S.C. §924(c) is the most dangerous provision in the federal firearms statutes. It imposes a mandatory prison term (served consecutively to and not concurrently with any other sentence) on any person who uses or carries a firearm during and in relation to, or possesses a firearm in furtherance of, a drug trafficking crime or crime of violence.

The mandatory consecutive terms under §924(c) are:

• Possession in furtherance: 5 years consecutive (first conviction).

• Brandishing: 7 years consecutive.

• Discharge: 10 years consecutive.

• Short-barreled rifle/shotgun or semiautomatic assault weapon: 10 years consecutive.

• Machine gun or destructive device, or silencer: 30 years consecutive.

• Second or subsequent §924(c) conviction: 25 years consecutive (mandatory).

Because §924(c) sentences run consecutively to the sentence for the underlying offense, a defendant convicted of drug trafficking and §924(c) faces a combined sentence that can be far longer than the drug trafficking charge alone would produce. This is why §924(c) is frequently the subject of the most intense pretrial litigation in federal drug cases where a firearm was present.

The predicate offense challenge. The §924(c) enhancement requires a qualifying predicate offense (a drug trafficking crime or crime of violence). The definition of “crime of violence” in §924(c)(3) was significantly narrowed by the Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019), which struck down the residual clause as unconstitutionally vague. Whether a specific prior conviction qualifies as a “crime of violence” for §924(c) purposes is now a category-by-category legal analysis that has produced ongoing litigation in the Fifth Circuit.

Armed Career Criminal Act — 18 U.S.C. §924(e)

The ACCA imposes a mandatory minimum of 15 years on any defendant convicted under §922(g) who has three prior convictions for a “violent felony” or “serious drug offense” committed on different occasions. Without ACCA, the base offense carries up to 10 years. With ACCA, the mandatory minimum is 15 years and the maximum is life.

The predicate determination is heavily litigated. Whether a prior conviction qualifies as a “violent felony” or “serious drug offense” for ACCA purposes requires analyzing the elements of the prior offense under the categorical approach established in Taylor v. United States and its progeny. The Supreme Court’s decisions in Johnson v. United* States* (2015), Borden v. United States (2021), and Wooden v. United States (2022) have collectively narrowed the range of convictions that qualify as ACCA predicates. A prior conviction that the government claims qualifies may not survive categorical approach analysis and eliminating even one of the three required predicates defeats the ACCA enhancement entirely.

Straw Purchases — 18 U.S.C. §922(a)(6)

A straw purchase occurs when one person buys a firearm for another, falsely representing themselves as the actual buyer on federal Form 4473. The Supreme Court’s decision in

Abramski v. United States, 573 U.S. 169 (2014), clarified that §922(a)(6) applies even when the ultimate recipient is legally eligible to purchase a firearm. The false statement on the federal form is the offense, regardless of whether the actual recipient could have purchased the firearm themselves. Straw purchase convictions carry up to 10 years and a fine up to $250,000.

Gun Trafficking — 18 U.S.C. §933

The Bipartisan Safer Communities Act of 2022 created a new gun trafficking statute at 18 U.S.C. §933, making it a federal crime to transfer or otherwise dispose of a firearm knowing that the recipient is prohibited from possessing it, or to transfer two or more firearms in furtherance of a felony. This statute provides an additional charging vehicle alongside existing straw purchase and conspiracy provisions.

National Firearms Act Violations — 26 U.S.C. §5861

The National Firearms Act (NFA) imposes registration and tax requirements on a specific category of regulated firearms: machine guns, short-barreled rifles (barrel under 16 inches), short-barreled shotguns (barrel under 18 inches), silencers and suppressors, destructive devices (grenades, explosive devices, certain large-bore weapons), and any other weapons (AOW) as defined by the NFA. Possession, transfer, or manufacture of any NFA item that is not properly registered in the National Firearms Registration and Transfer Record is a federal felony under 26 U.S.C. §5861, carrying up to 10 years in prison and a fine up to $250,000.

NFA violations are prosecuted with particular frequency in cases involving suppressors and short-barreled rifles which are both legal when properly registered but become federal felonies when unregistered. The rise of solvent trap kits (sold legally as firearm cleaning tools but frequently modified into suppressors) has generated a significant volume of NFA prosecutions in Texas. Key defense considerations include:

• Registration status. The government must establish the item was not registered in the NFRTR. The defense may challenge the completeness or accuracy of the registry search.

• Classification of the item. Whether a specific device constitutes an NFA-regulated item is a technical determination subject to challenge. ATF’s classification of solvent traps, binary triggers, and forced reset triggers has been actively litigated.

• Knowledge element. The defendant must have known of the features that make the item NFA-regulated. Lack of knowledge that a firearm had been converted to fire automatically is a defense to a machine gun charge.

• Constructive possession. As with other firearms offenses, NFA cases frequently allege constructive possession when the item was not on the defendant’s person.

Second Amendment Challenges Post-Bruen

In New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the Supreme Court established that the constitutionality of a firearms regulation must be assessed by whether it is consistent with the Nation’s historical tradition of firearm regulation. This text-and-history standard replaced the two-part means-end scrutiny framework that federal courts had applied for over a decade.

Under Bruen, defendants in several federal circuits have successfully challenged the application of §922(g)(1) and other firearms prohibitions on Second Amendment grounds. The Fifth Circuit (which governs Texas federal courts) has addressed several Bruen-based challenges to federal firearms statutes. The constitutionality of specific firearms prohibitions as applied to specific defendants is an evolving area of litigation that defense counsel must monitor in every federal firearms case.

Defense Strategies in Federal Firearms Cases

Challenging constructive possession. Where the firearm was not on the defendant’s person, the government must establish affirmative links beyond proximity. The number and strength of those links (fingerprints, DNA, proximity to the defendant’s belongings, witness testimony about the defendant’s access and control) determine whether constructive possession can be established beyond a reasonable doubt.

Challenging the §924(c) predicate. If the drug trafficking or crime of violence predicate is challengeable (either because the charged offense doesn’t qualify or because the prior conviction used as a predicate doesn’t meet the categorical approach requirements) the §924(c) consecutive sentence falls with it.

ACCA predicate analysis. Every prior conviction the government intends to use as an ACCA predicate should be analyzed under the categorical approach to determine whether its elements match the ACCA’s definition of violent felony or serious drug offense. Eliminating one predicate eliminates the enhancement.

Rehaif knowledge of status. In cases where the defendant’s knowledge of their prohibited status is genuinely contested (for example, a defendant who believed their conviction had been expunged or whose record is ambiguous) the Rehaif knowledge element is a defense argument.

Fourth Amendment challenges. Federal firearms cases frequently arise from traffic stops, residence searches, and warrant-based investigations. The lawfulness of the search that produced the firearm is subject to challenge. Evidence obtained through an unlawful stop or an overbroad search may be suppressed, eliminating the evidentiary foundation of the charge.

Digital evidence. Text messages about firearms purchases or transactions, social media posts displaying firearms, and financial records of purchases are all categories of digital evidence used in federal firearms cases. Doug Huff’s digital forensics training covers the authentication, completeness, and chain of custody requirements for this evidence under the Federal Rules of Evidence.

Why James Lee Bright for Federal Firearms Defense

• 25+ years of federal firearms defense across all four Texas federal districts. Northern, Eastern, Southern, and Western Districts of Texas, plus the District of Columbia and the Fifth Circuit.

• Command of the ACCA categorical approach. Predicate analysis under Johnson, Borden, and Wooden — the litigation that has narrowed ACCA’s reach and created defense opportunities that did not exist a decade ago.

• §924(c) consecutive sentence experience. The most dangerous sentencing provision in federal law for cases involving both drugs and firearms. Pretrial litigation strategy in these cases requires experience with this specific enhancement.

• Bruen Second Amendment developments. Active monitoring of Fifth Circuit and Supreme Court decisions as the post-Bruen constitutional landscape continues to develop.

• Digital forensics — Douglas Huff. Text messages, social media, financial records, and other digital evidence examined at the technical level.

If you are facing federal firearms charges anywhere in Texas, call (214) 225-7117 for a free, confidential consultation with James Lee Bright. Or schedule online at texasdwisite.com.