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.

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.

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.

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
• A variance is a sentence outside of the guidelines
• A departure is a lower or higher sentence recommended by the guidelines
• A government-sponsored departure or variance means that the prosecution and defendant agreed on a sentence, likely as part of a plea deal

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.

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.

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.

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.

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.

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.