Sentencing Law

How Much Time Will I Serve for Illegal Firearms Possession?

Federal prosecutors often use weapons enhancements in federal criminal cases as leverage to obtain plea bargains and cooperation from criminal defendants. According to the Department of Justice, federal firearms offenses are often “simple and quick to prove.” Federal laws call for stringent penalties for gun crimes, including mandatory minimum sentences, which is one reason why they are so effective at getting cooperation from defendants.

The federal government often has jurisdiction in gun crime cases. For example, using a gun to rob a commercial business that affects interstate commerce can lead to federal charges. Another example is stealing a television, jewelry, and handgun from a pawnshop. Because the pawnshop is a federally licensed gun dealer, federal prosecutors have jurisdiction, and the theft may bring federal charges.

This means there are thousands of criminal defendants accused of violating federal gun laws every year. This article looks at sentencing for federal gun crimes using 2019 data from the United States Sentencing Commission, which tracks sentencing for all federal jurisdictions.

What Are the Most Common Federal Firearms Offenses?

Federal law prohibits certain categories of people from owning firearms even if it would otherwise be legal. These include people convicted of a felony, anyone discharged dishonorably from the military, undocumented immigrants, people subjected to a restraining order, and others. Some weapons are illegal for anyone to have, such as machine guns and unregistered guns. In addition, using a firearm during any violent or drug-trafficking crime can lead to federal charges.

Firearms offenses are one of the most common federal crimes in the U.S., behind only immigration and drug crimes. The United States Sentencing Commission reports that there were 8,481 convictions for illegal firearms possession in 2019. Federal firearms offenses have increased in recent years, according to the USSC, and now account for over 11% of the total number of federal criminal convictions.

In 2019, almost all sentencing for federal firearms offenses involved the unlawful possession, receipt, or transportation of guns or ammunition. Of these, in 67% of cases, the illegal possession was due to a prior felony conviction. The other most common federal gun crimes were the use of a firearm during or in relation to certain crimes and possessing a firearm in a federal facility or school zone.

Key Takeaways

The USSC data encompasses weapons enhancements along with various other gun crimes. Data from 2019 shows that:

  • Young men are more likely to be sentenced for gun crimes
  • Black men receive the highest average sentence
  • There is no direct correlation between illegal firearms sentencing and legal gun ownership

More on each of these takeaways below.

Firearms Offenses by State

The data below sorts federal gun crimes by state. Each state also prosecutes its own firearms offenses; the below charts only involve federal crimes. It is sorted by federal jurisdiction to help show which parts of the country see the greatest number of federal charges. The USSC does not track state sentencing data.

Federal courts in Texas and Missouri had the highest total firearms offenses by a wide margin, with 756 and 704, respectively. Most firearms offenses were concentrated in the South, with North Carolina, Florida, Alabama, and Tennessee also making the top 10. The fewest firearm offenses occurred in Hawaii, Guam, and the U.S. Virgin Islands.

There is no direct correlation between federal illegal firearms offenses and states with the most legal gun ownership. Montana, Wyoming, and Alaska all have the highest rates of gun ownership, according to the RAND Corporation. In Montana, 66.3% of adults live in homes with guns, but there were only 78 sentences issued for illegal firearms possession in 2019, which puts it in the bottom half.

Jurisdiction Total Sentences Given
Texas 756
Missouri 704
North Carolina 476
Florida 420
Alabama 409
Tennessee 375
California 310
Ohio 269
Georgia 253
Puerto Rico 243
South Carolina 243
Indiana 234
New York 226
Illinois 217
Iowa 207
Pennsylvania 178
Michigan 170
Utah 168
Arizona 161
Mississippi 153
Louisiana 150
Oklahoma 141
Virginia 135
Kentucky 133
Maryland 132
New Jersey 129
West Virginia 118
Arkansas 115
Nevada 114
Kansas 97
New Mexico 96
Washington 86
Colorado 84
Montana 78
Washington, D.C. 69
Wisconsin 66
South Dakota 66
Oregon 60
Alaska 57
Connecticut 49
Massachusetts 48
Idaho 45
Minnesota 45
Nebraska 36
Wyoming 30
Maine 27
Vermont 18
Delaware 18
New Hampshire 18
Rhode Island 16
North Dakota 14
Hawaii 8
Guam 6
U.S. Virgin Islands 5

Average Sentence by Federal Jurisdiction

Florida and North Carolina, two of the states with the highest number of federal firearms offenses, also have two of the highest average sentences issued. Texas, meanwhile, is in the bottom half for average sentence despite having the largest number of offenses. Montana, the state with the highest percentage of legal gun ownership in the nation, has one of the lowest average sentences issued.

Jurisdiction Average Sentence Length
Minnesota 76
South Carolina 67
New Mexico 65
North Carolina 64
Florida 64
Arkansas 63
Pennsylvania 61
Maryland 60
New Jersey 60
Georgia 59
Illinois 58
Kentucky 57
Oklahoma 57
Iowa 57
Tennessee 56
Louisiana 54
New York 53
Ohio 53
Mississippi 51
Alabama 51
Wyoming 50
Michigan 50
North Dakota 49
Colorado 49
Missouri 48
Virginia 48
U.S. Virgin Islands 46
Alaska 46
Delaware 46
Nebraska 44
Indiana 44
Texas 44
Vermont 42
Massachusetts 42
California 41
Washington, D.C. 40
Wisconsin 40
Kansas 40
Nevada 39
Hawaii 39
West Virginia 39
Idaho 38
Puerto Rico 38
South Dakota 38
Connecticut 36
Utah 34
Oregon 33
Maine 32
Washington 32
Rhode Island 30
Arizona 27
Montana 25
New Hampshire 20
Guam 10

Type of Sentence Issued

Federal law does not consider illegal firearms possession, by itself, a violent crime. However, using a gun to commit another crime can be considered violent.

This is reflected in the type of sentence imposed in federal courts on illegal firearms possession. Prison time was by far the most common type of sentence imposed. This is likely a reflection of most defendants having a prior record, which makes probation less likely. It also likely means that, in certain circumstances, the underlying offense was considered a violent crime.

Most Gun Charges Result in a Guilty Plea

Like most federal charges, most defendants charged with a federal firearms offense chose to plead guilty rather than go to trial. 8,251 of the 8,461 total sentences involved a guilty plea. That means less than 1% of defendants chose to go to trial. Those who were convicted at trial received more than double the sentence of those who pled guilty.

This is another reason why prosecutors like to use weapons enhancements as a tool to secure cooperation from a defendant. According to 2019 data, most defendants did not like their chances of defending against illegal firearms possession at trial.

Plea or Trial Total Average Sentence
Guilty Plea 49
Guilty Plea and Trial 86
Jury Trial 119
Nolo Contendere (No Contest) 51
Trial by Judge or Bench Trial 67

Percentage of Offenders Sentenced According to Guidelines

Federal courts use sentencing guidelines to help determine sentencing, but they are not mandatory. Typically, judges will issue a sentence within guidelines.

The guidelines recommend an increased or decreased sentence based on a variety of factors. Federal sentencing guidelines will recommend a sentence enhancement for the use of a weapon in furtherance of another crime, for example. Other factors include previous criminal record, whether the charges involved physical threats, and others.

Federal law requires mandatory minimum sentences for certain gun crimes, as well. Judges cannot issue sentences below the mandatory minimum. For example, under the Armed Career Criminal Act, there is a minimum 15-year sentence for any person convicted of felon in possession of a firearm with three prior state or federal convictions for violent felonies or serious drug offenses.

In looking at the 2019 data, we can see that most offenders received a sentence within recommended guidelines. Of those outside of the recommended guidelines, most defendants received a below-range variance.

A note on the terms:

  • 5K1.1/Substantial Assistance means the defendant cooperated with law enforcement and the prosecution to receive a lower sentence
  • variance is a sentence outside of the guidelines
  • departure is a lower or higher sentence recommended by the guidelines
  • government-sponsored departure or variance means that the prosecution and defendant agreed on a sentence, likely as part of a plea deal
Departures and Variances Total Number of Sentences
5K1.1/Substantial Assistance 563
Above Range Variance 312
Below Range Variance 2014
Downward Departure 161
Early Disposition 8
Government-Sponsored Departure 144
Government-Sponsored Variance 598
Upward Departure 56
Within Range 4625

The most likely outcome of a conviction for a federal gun crime is a sentence within the guideline range. Of the courts that issued a variance, it was most likely to be below guidelines.

However, criminal defendants should be less pleased by the average length of departures and variances. While defendants who cooperated with a criminal investigation (usually by testifying as a witness or otherwise providing evidence to law enforcement) received significantly less of a sentence, courts did not vary much below recommended guidelines when issuing lesser sentences. On the other hand, courts that issued upward departures and variances did so to a greater degree, with an average increase in the sentence of around two years.

Departures and Variances Average Length of Departure in Months
Substantial Assistance 32.7
Above Range Variance 26.3
Below Range Variance 17.5
Downward Departure 20
Early Disposition 20.25
Government-Sponsored Departure 19.5
Government-Sponsored Variance 22.6
Upward Departure 23.1

Prior Criminal Record

The overwhelming majority of federal gun crime offenders had a previous criminal record. This is not surprising. Generally, most federal criminal defendants have a previous record. In addition, the most commonly charged offense was illegal possession of a firearm due to a previous felony conviction.

Only .03% of offenders had no prior record when charged with a federal firearms offense. Offenders with no prior record received, on average, 33 fewer months in prison than offenders with a prior criminal record.

Weapons Enhancements Explained

Federal courts can also include a weapons enhancement in sentencing for various other crimes. For example, sentencing for robbery can increase if the defendant brandished a weapon. If the defendant fired the weapon, the sentence is increased even more.

Federal law attaches more than one mandatory minimum for certain gun crimes, and these must be served consecutively, meaning that a weapons enhancement can add a great deal of time to a prison sentence. As another example, if the accused is also charged with using an automatic weapon, the sentence enhancement calls for an additional mandatory 10 years in prison, in addition to any time for the underlying crime.

Sentencing for Illegal Firearms By Race

Black defendants received the most sentences for illegal firearms possession by a wide margin. About half of all sentences involved Black defendants. White, non-Hispanic defendants received the second most, with 2031 sentences issued.

There are a couple of potential reasons for this discrepancy. One is that gun violence has traditionally impacted Black Americans more heavily than other population groups in the U.S. In 2019, according to the Centers for Disease Control and Prevention (CDC), Black males have “by far the highest rate of gun death, nearly twice as high as the second-highest (and also disproportional) rate of gun death among American Indian/Alaska Native males.”

Another factor may be the enforcement of existing law. New York City’s stop-and-frisk policy, for example, has been shown to target Black and Hispanic Americans, which could lead to more arrests for illegal gun possession. While stop-and-frisk policies have been deemed unconstitutional, the issues with stop-and-frisk may highlight an underlying tendency to arrest and prosecute Black citizens for illegal gun possession and other crimes.

Race Hispanic Total Number of Sentences
American Indian\Alaskan Native Hispanic 10
American Indian\Alaskan Native Not Available 3
American Indian\Alaskan Native Non-Hispanic 137
Asian or Pacific Islander Hispanic 4
Asian or Pacific Islander Not Available 1
Asian or Pacific Islander Non-Hispanic 74
Black/African American Hispanic 184
Black/African American Not Available 164
Black/African American Non-Hispanic 4337
Info on Race Not Available Hispanic 10
Info on Race Not Available in Docs Not Available 8
Info on Race Not Available Non-Hispanic 8
Multiracial Hispanic 2
Multiracial Non-Hispanic 4
Other Hispanic 10
Other Not Available 1
Other Non-Hispanic 14
White/Caucasian Hispanic 1354
White/Caucasian Not Available 125
White/Caucasian Non-Hispanic 2031

Not only are Black people more likely to be sentenced for illegal firearms possession, they also receive the longest sentences on average. In 2019, Black, non-Hispanic defendants were sentenced to an average of 56.8 months, compared to 43.9 months for white defendants.

Race Hispanic Average Sentence
American Indian\Alaskan Native Hispanic 47.6
American Indian\Alaskan Native Not Available 31
American Indian\Alaskan Native Non-Hispanic 42.6
Asian or Pacific Islander Hispanic 39.2
Asian or Pacific Islander Not Available 12
Asian or Pacific Islander Non-Hispanic 43.4
Black/African American Hispanic 51.3
Black/African American Not Available 67.3
Black/African American Non-Hispanic 56.8
Info on Race Not Available Hispanic 29.9
Info on Race Not Available Not Available 27.3
Info on Race Not Available Non-Hispanic 31.5
Multiracial Hispanic 43
Multiracial Non-Hispanic 24.2
Other Hispanic 23.5
Other Not Available 51
Other Non-Hispanic 21.5
White/Caucasian Hispanic 40.2
White/Caucasian Not Available 50.5
White/Caucasian Non-Hispanic 43.9

Sentencing for Gun Crimes by Gender and Age

There are also notable discrepancies by age and gender. Young men were the most likely to be sentenced for illegal firearms possession. There were 3,309 sentences given to men aged 21-30, compared to 1,117 for men aged 41-50.

Age Gender Total Sentences Given
20 & Younger Female 7
20 & Younger Male 223
21 – 25 Female 60
21 – 25 Male 1329
26 – 30 Female 90
26 – 30 Male 1980
31 – 35 Female 73
31 – 35 Male 1659
36 – 40 Female 57
36 – 40 Male 1324
41 – 50 Female 51
41 – 50 Male 1117
51 – 60 Female 14
51 – 60 Male 377
61 & Older Female 4
61 & Older Male 116

Young men did not, however, receive the longest sentence on average. Older men received the longest average sentence, at around five years for defendants aged 36-50. This could be due to the high likelihood of having a previous criminal offense for offenders in that age group. Having a prior criminal record, particularly a serious drug offense or violent crime, can dramatically increase sentence length.

20 & Younger Female 15.9
  Male 36.7
21 – 25 Female 16.9
  Male 41.8
26 – 30 Female 22.5
  Male 50.8
31 – 35 Female 24.7
  Male 55
36 – 40 Female 26.9
  Male 60.2
41 – 50 Female 24
  Male 54.4
51 – 60 Female 11.5
  Male 52
61 & Older Female 3
  Male 33.1

Conclusions

Data from 2019 shows that young men are much more likely to be charged and convicted of a federal gun crime. Federal prosecutors are also likely to use weapons enhancements as a tool when seeking a longer sentence or cooperation from a criminal defendant. Finally, it is extremely likely that a defendant charged with a weapons offense in federal court will have a prior record, meaning that the defendant is more likely to face a lengthy prison sentence.

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