Possession of a Firearm with an Altered Serial Number

Under 26 U.S.C. § 5861(h), it is a federal crime to possess a firearm with an altered or obliterated serial number. This statute addresses the illegal possession of firearms with tampered identification, aiming to regulate and prevent the possession of untraceable or obscured firearms. By prohibiting the possession of firearms with altered serial numbers, the law contributes to public safety and enhances law enforcement's ability to trace and regulate firearms.

The prosecution must prove each of the following elements beyond a reasonable doubt in order to establish guilt:

1. The Defendant knowingly possessed the firearm described in the indictment at the time and place charged in the indictment:

• This requires evidence that the defendant had control and awareness of the firearm specified in the indictment at the alleged time and place. The focus on knowledge emphasizes the intentional nature of the possession.

2. The firearm’s serial number had been [obliterated] [altered]:

• The prosecution must demonstrate that the serial number on the firearm was intentionally and unlawfully changed or removed. This element is crucial for identifying the illegal alteration of the firearm's identification.

3. The Defendant knew that the serial number had been [obliterated] [altered]: 

• Establishing the defendant's knowledge of the altered or obliterated serial number is crucial to proving the intentional nature of the offense. This requirement ensures that the possession is not accidental or unknowing.

The term "firearm" includes the kind of weapon described in the indictment, as defined within the context of 26 U.S.C. § 5845. This includes various categories, including (1) a shotgun with a barrel length of less than 18 inches; (2) a modified weapon derived from a shotgun with an overall length below 26 inches or a barrel less than 18 inches; (3) a rifle with a barrel length less than 16 inches; (4) a modified weapon derived from a rifle with an overall length below 26 inches or a barrel less than 16 inches; (5) any other weapon as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. Exclusions from the term "firearm" include antique firearms and devices (excluding machineguns or destructive devices) recognized by the Secretary as primarily collector's items due to their date of manufacture, value, design, and characteristics, making them unlikely to be used as weapons.

This statute reflects a commitment to preventing the possession of firearms with tampered serial numbers, aiming to enhance law enforcement's ability to trace and regulate firearms. The stringent penalties act as a deterrent against the illegal alteration or obliteration of serial numbers, contributing to public safety and the overall effectiveness of firearm regulation. Having an experienced attorney who understands the implications of this serious offense is vital to the success of your case. Continue reading below for additional information regarding the potential penalties and possible defenses related to this offense. 

Possession of a Machine Gun

Under 18 U.S.C. § 922(o)(1), a Federal offense is committed when an individual possesses a machine gun. The statute defines a "machine gun" broadly as any weapon designed to shoot, or capable of being readily restored to shoot, multiple shots automatically, without manual reloading, by a single function of the trigger.

To secure a conviction, the prosecution must prove the following elements beyond a reasonable doubt:

1. Possession of a "Machine Gun": 

• The Defendant must have had control or ownership of a firearm falling under the definition of a "machine gun.

2. Knowledge or Awareness: 

• The Defendant must have been aware that the firearm in their possession was a machine gun or had knowledge of its essential characteristics that classify it as a "machine gun."

18 U.S.C. § 922(o)(1) explicitly forbids the transfer or possession of a machine gun, emphasizing the seriousness of the offense. Notably, willfulness is not a crucial element of this offense, distinguishing it from some other criminal charges. It is crucial to be aware that the definition of "machine gun" in 26 U.S.C. § 5845(b) extends to encompass the "frame or receiver" and "parts." These components may be implicated when converting or assembling a machine gun, potentially necessitating a broader understanding of the charged offense.

Facing charges under 18 U.S.C. § 922(o)(1) requires a nuanced approach. At Hubbs Law, P.A., our legal experts specialize in federal firearm laws and are dedicated to constructing a robust defense tailored to your specific circumstances. 

Dealing in Firearms without a License

Under 18 U.S.C. § 922(a)(1)(A), it is a federal crime to be in the business of dealing in firearms without a federal license. This statute is designed to regulate and control the business of firearm dealing, ensuring that individuals engaging in such activities are licensed, promoting public safety, and preventing the illegal flow of firearms.

The following elements must be proven by the prosecution beyond a reasonable doubt in order to establish guilt:

1. The Defendant engaged in the business of dealing in firearms: 

• This involves regular purchases and resales of firearms with the principal objective of livelihood and profit.

2. The Defendant didn't have a federal license: 

• The Defendant must lack the necessary federal license required for engaging in the business of dealing in firearms.

3. The Defendant acted willfully: 

• The Defendant's actions must be willful, requiring proof that the defendant knew that their conduct was unlawful.

Certain phrases defined in 18 U.S.C. § 922(a)(1)(A) must be understood in order to comprehend the elements of this offense. The following terms are defined in the federal statute: 

• Definition of Firearm:
  • A "firearm" is any weapon designed to, or readily convertible to, expel a projectile by the action of an explosive. This includes the frame or receiver of such a weapon and any firearm muffler or silencer.
• Engaged in the Business of Dealing in Firearms:
  • A person is "engaged in the business of dealing in firearms" if they regularly purchase and resell firearms with the principal objective of livelihood and profit. The term "livelihood" includes making a living and supplementing one's income. Notably, occasional sales for personal collection purposes do not constitute the business of dealing in firearms.
• Dealer Definition:
  • A "dealer" is any person engaged in the business of dealing in firearms, whether at wholesale or retail, even if it is not their primary business or job.
• Considerations in Determining Principal Objective:
  • Various factors are considered in determining whether a Defendant had the principal objective of livelihood and profit. These include the quantity and frequency of sales, location, conditions, defendant's behavior, pricing, and characteristics of firearms sold. The government need not prove actual profit, but the principal objective must be livelihood and profit.
• Knowledge of Unlawfulness:
  • The government must prove that the Defendant knew their conduct was unlawful, but knowledge of the specific federal licensing requirement is not required. The term "willfully" in Section 924(a)(1)(D) requires proof that the defendant knew their conduct was unlawful, and the general definition of "willfully" in Basic Instruction 9.1A usually applies.

This law reflects the government's effort to control and regulate the business of dealing in firearms, ensuring that those engaged in such activities are licensed and operate within legal boundaries. The penalties associated with the violation emphasize the seriousness of unlicensed firearm dealing and the necessity of having appropriate representation. 

False Statement to a Firearm’s Dealer 

Making a false statement to a licensed firearms dealer while purchasing a firearm is a federal crime under 18 U.S.C. § 922(a)(6). This statute aims to maintain the integrity of firearm transactions by penalizing deceptive actions that could impact the lawfulness of the sale.

A defendant can be found guilty if the prosecutor proves the following elements beyond a reasonable doubt:

1. Purchase or Attempted Purchase from a Licensed Firearms Dealer:

• The defendant must have bought or attempted to buy a firearm from a federally licensed firearms dealer.

2. Knowingly Made a False Statement or Furnished False Identification:

• The defendant knowingly made a false or fictitious statement, orally or in writing.
• Alternatively, the defendant knowingly furnished false identification that was intended to deceive or likely to deceive the dealer.

3. Materiality of the False Statement or Identification:

• The subject matter of the false statement or identification must be material to the lawfulness of the sale.

To understand the elements of this offense, one must grasp some of the definitions provided in 18 U.S.C. § 922(a)(6). The federal legislation defines the phrases as follows: 

• Definition of Firearm:
  • A "firearm" includes any weapon designed to or readily convertible to expel a projectile by the action of an explosive. This encompasses the frame or receiver of such a weapon and any firearm muffler or silencer.
• False Statement or Identification:
  • A statement or identification is "false" if it is untrue when made or used, and the person making or using it knows it is untrue. A false statement or identification is "likely to deceive" if, under the circumstances, a reasonable person of ordinary prudence would probably be deceived.
• Materiality Determination:
  • Whether the allegedly false statement or identification is "material" is a question of law for the court to decide. If the statement or identification is found to be false, it is considered material to the sale.

This law emphasizes the importance of truthful information in firearm transactions, safeguarding the lawfulness of sales and contributing to the overall regulation of firearms. The severity of penalties underscores the significance of maintaining honesty during such transactions.

If you are facing allegations of making false statements during a firearm purchase, seeking legal representation is essential. Our experienced criminal defense team can help navigate the complexities of federal firearm offenses and work towards the best possible outcome for your case. 

Sale of Firearm to a Convicted Felon

Knowingly selling a firearm to a convicted felon is a federal crime under 18 U.S.C. § 922(d)(1). This statute aims to prevent the distribution of firearms to individuals with a history of felony convictions, enhancing public safety and maintaining responsible firearm transactions.

The prosecution must prove each of the following elements beyond a reasonable doubt to demonstrate the defendant’s guilt:

1. Sale of the Firearm:

• The defendant sold the firearm specified in the indictment at or around the alleged time.

2. Buyer's Felony Conviction:

• The buyer of the firearm had been convicted of a felony, a crime punishable by imprisonment for more than a year.

3. Knowledge or Reasonable Cause to Believe:

• The defendant knew or had reasonable cause to believe that the buyer had a felony conviction.

The elements of this crime need an understanding of certain terms as described in 18 U.S.C. § 922(d)(1). Within the federal legislation, the following words are defined:

• Definition of Firearm:
  • A "firearm" encompasses any weapon designed to expel a projectile through the action of an explosive. This includes the frame or receiver of such a weapon, along with firearm mufflers or silencers.
• Reasonable Cause to Believe:
  • "Reasonable cause to believe" that someone is a convicted felon refers to knowing facts that would lead a reasonable person to conclude that the other person has a felony conviction.

18 U.S.C. § 922(d)(1) outlines the offense, prohibiting the sale or disposition of firearms or ammunition to individuals known or reasonably believed to be convicted felons. Importantly, willfulness is not deemed an essential element of this offense, as clarified by 18 U.S.C. § 924(a)(2).

This law underscores the responsibility of firearm sellers to ensure that firearms are not transferred to individuals with felony convictions. By imposing strict penalties, the legal system emphasizes the gravity of knowingly providing firearms to individuals with a history of serious criminal offenses.

Penalties for Federal Firearm Charges

Penalties for Possession of a Firearm in Furtherance of a Crime of Violence or Drug Trafficking Crime

As a criminal defense attorney specializing in U.S. federal firearm offenses, it's crucial to understand the severe penalties associated with violations of 18 U.S.C. § 924(c). This statute imposes fixed mandatory prison terms for individuals convicted of using or carrying a firearm during and in relation to a "crime of violence" or "drug trafficking crime." Here's a comprehensive overview of the penalties attached to such offenses:

• Mandatory Consecutive Penalties:
  • Section 924(c) mandates a consecutive penalty in addition to the punishment for the underlying crime of violence or drug trafficking offense. The penalties range from five years to life imprisonment, escalating based on factors such as firearm use, possession of specific firearm types, and prior Section 924(c) convictions.
• Minimum Penalties:
  • Use of Firearm: 5 years
  • Brandishing Firearm: 7 years
  • Discharging Firearm: 10 years
  • Short-barreled Rifle, Shotgun, or Semiautomatic Assault Weapon: 10 years
  • Machine Gun, Destructive Device, or Firearm with Silencer: 30 years
• Subsequent Convictions:
  • If violating Section 924(c) after a prior conviction, the mandatory minimum is 25 years or life imprisonment for specific firearm types.
• Nature of the Firearm:
  • The type of firearm used is an essential element of the offense, determined by the jury. For instance, possessing a semiautomatic assault weapon triggers a ten-year mandatory minimum. Courts emphasize proving this element beyond a reasonable doubt.
• "During and In Relation To" and "In Furtherance Of" Standards:
  • Section 924(c) outlines two relationships between the firearm and the underlying crime, depending on use, carry, or possession. Understanding the nuances between "during and in relation to" and "in furtherance of" is crucial for effective defense.

Penalties for Possession of a Firearm by a Convicted Felon

When charged with a felon-in-possession offense under 18 U.S.C. § 922(g), it's essential to grasp the specific penalties and sentencing intricacies associated with these federal firearm violations. 

Section 922(g) establishes the prohibition for certain individuals—referred to as prohibited persons—to possess firearms or ammunition in or affecting commerce. Prohibited persons encompass convicted felons, fugitives, unlawful drug users, adjudicated "mental defectives," illegal aliens, dishonorably discharged service personnel, those who renounced U.S. citizenship, and individuals with misdemeanor domestic violence convictions or subject to certain restraining orders.

• Maximum Penalty and Enhanced Penalties:
  • The maximum penalty for violating § 922(g)(1) is ten years' imprisonment and an applicable fine. However, under the Armed Career Criminal Act, individuals with three previous convictions for violent felonies or serious drug offenses face a minimum sentence of fifteen years.

Penalties for Possession of a Firearm with an Altered Serial Number

When facing U.S. federal firearm offenses, it is crucial to understand the potential penalties and enhancements that may apply. The maximum penalty for a violation of 26 U.S.C. § 5861(h) is ten years of imprisonment and a $250,000 fine, as specified in 26 U.S.C. § 5871 and 18 U.S.C. § 3571. Section 2K2.1 of the sentencing guidelines outlines specific circumstances that lead to increased penalties:

• Stolen Firearm Enhancement (§2K2.1(b)(4)(A)): 
  • A 2-level increase is applied when a firearm is stolen. Importantly, the defendant doesn't need to be aware that the firearm was stolen to incur this enhancement. If the firearm is taken without permission, even if not directly stolen by the defendant, the enhancement may still apply.
• Altered or Obliterated Serial Number Enhancement (§2K2.1(b)(4)(B)): 
  • This enhancement entails a 4-level increase when a firearm's serial number is altered or obliterated. The Ninth Circuit clarifies that this doesn't necessitate making the serial number scientifically untraceable; rather, any material change that hinders accurate information retrieval qualifies. The Sixth Circuit specifies that a visible serial number to the naked eye is not considered altered or obliterated, while the Fifth and Eleventh Circuits maintain that legibility is not a requirement for the alteration designation. Notably, if a firearm has multiple serial numbers, modifying just one triggers the enhancement.

Penalties for Possession of a Machine Gun

The maximum penalty for an individual convicted of unlawfully possessing or transferring a machine gun under § 922(o)(1) is up to 10 years of imprisonment. Understanding the nuances of federal firearm offenses is crucial when facing charges under § 922(o)(1). If you are accused of unlawfully possessing or transferring machine guns, seeking legal representation is essential.

Penalties for Dealing Firearms without a License

The penalties for violating 18 U.S.C. § 922(a)(1)(A) include a maximum penalty of five (5) years of imprisonment and an applicable fine. It's important to note that federal sentencing statutes often provide for a range of penalties, and the actual sentence imposed can depend on various factors, including the specific circumstances of the offense and any applicable sentencing guidelines.

The range of penalties typically involves a maximum term of imprisonment, and the fine may vary based on the severity and nature of the offense. Additionally, other factors such as prior criminal history may influence the sentencing outcome.

Penalties for False Statement to a Firearm’s Dealer

A violation of 18 U.S.C. § 922(a)(6) carries significant consequences. Individuals convicted under this statute may face a maximum term of imprisonment of ten years. Additionally, any firearm or ammunition involved in the offense is subject to seizure and forfeiture.

Penalties for Sale of a Firearm to a Convicted Felon 

If you are facing charges under Section 922(d)(1) for selling of firearms, understanding the potential penalties is crucial. Section 922(d)(1) makes it unlawful to engage in such transactions with individuals under indictment or convicted of a crime punishable by imprisonment for a term exceeding one year. 

The maximum term of imprisonment for violating Section 922(d) is ten years. A violation of Section 922(d) is a serious offense and can lead to significant consequences. Having an experienced attorney by your side is a crucial part of your defense. 

Defenses to Federal Firearm Charges

Facing federal firearm offenses necessitates a strategic and well-informed defense. Here, we outline key defenses tailored to specific elements of the charges listed above, ensuring a comprehensive approach to protect your rights.

General Defenses for Federal Firearm Charges

• Lack of Knowledge of Firearm: One possible defense revolves around establishing the defendant's lack of knowledge regarding the firearm's presence. If the prosecution cannot convincingly demonstrate that you were aware of the firearm's existence, it undermines a crucial element of the charges. Proving an absence of knowledge requires a thorough examination of the circumstances, emphasizing factors such as limited access, obscured visibility, or lack of awareness.
• Lack of Control of Firearm: In cases where the defendant did not exercise control over the firearm, establishing this lack of control can form a viable defense. Constructive possession, where the defendant lacks physical possession but has the power and intent to control the firearm, must be proven beyond a reasonable doubt.

Defenses for Possession of a Firearm in Furtherance of a Crime of Violence or Drug Trafficking Crime

• Firearm not used "In Furtherance of" Crime: Section 924(c) necessitates a specific relationship between the firearm and the underlying crime. A strong defense may involve challenging the prosecution's claim that the firearm was used "in furtherance of" the crime. By disputing this connection and presenting arguments that the firearm's presence did not enhance or contribute to the offense, we can possibly undermine the applicability of Section 924(c). Factors such as the location, accessibility, and timing of the firearm become crucial in establishing this defense.

Defenses for Possession of a Firearm by a Convicted Felon

• Lack of Knowledge of Prior Felony Conviction: The Government has the burden of proving that you knew that you were a convicted felon.  While this could be a difficult defense, if you were misadvised by your prior attorney or confused as to a prior felony plea, you could possible argue that you were unaware that you had a prior felony conviction which prohibited you from possessing a firearm.

Defenses for Possession of a Firearm with an Altered Serial Number 

• Lack of Knowledge of Altered Serial Number: One potential defense is to challenge the prosecution's ability to prove that you had knowledge of the specific characteristics of the firearm or device in question. If you were unaware of its prohibited features or did not possess the requisite intent to violate federal laws, it may create reasonable doubt.

Defenses for Possession of a Machine Gun

• Lack of Knowledge Firearm was a Machine Gun:  The government has the burden of proving you knew that the firearm was a machine gun.  Therefore, you may have a defense if you were unaware that the gun could be classified as a machine gun under federal law.  Providing evidence that you were not aware of the firearm's automatic function or that you did not have the requisite intent can be crucial in constructing a defense against charges under 18 U.S.C. § 922(o)(1).
• Firearm was not a Machine Gun: Challenge the classification of the firearm as a machine gun. The definition of a machine gun under federal law includes specific criteria, and disputing whether the firearm meets these criteria can be a viable defense. This defense strategy involves a thorough examination of the firearm's characteristics and functionality. If it does not meet the statutory definition of a machine gun, it may undermine the charges.

Defenses for False Statement to a Firearm’s Dealer

• Materiality of False Statements: Challenge the materiality of the false statements made during the firearm acquisition. Courts require that the false statement be material to the lawfulness of the sale. If the misrepresentation did not impact the lawfulness of the transaction, it may serve as a valid defense.
• Lack of Intent to Deceive: Argue that there was no intent to deceive the licensed dealer during the acquisition process. Establish that any false statements made were unintentional, and there was no conscious effort to provide misleading information.

Defenses for Sale of Firearm to a Convicted Felon

• Lack of Knowledge or Reasonable Cause: Argue that the seller lacked knowledge or reasonable cause to believe that the buyer fell into one of the prohibited categories outlined in 18 U.S.C. § 922(d)(1). Establish that the seller did not possess information or evidence suggesting the buyer's disqualification.

Every Client deserves the preparation of a defense that is uniquely structured based on the specific charge and facts of their case. Defending federal firearm offenses demands a nuanced understanding of the law and a meticulous approach to case specifics. With our expertise, we craft a tailored defense strategy aimed at securing the best possible outcome for your case. Contact us for a comprehensive consultation and let us navigate the complexities of your situation with skill and dedication.

Find an Attorney for Federal Firearm Charges in Miami, FL

If you are facing charges related to a federal firearm offense, seeking immediate legal representation is essential to your case. Attorneys E.J. and Erika Hubbs, both former prosecutors with extensive trial experience, are ready to assist you. We provide legal representation for individuals accused of various federal firearm offenses throughout Miami and Miami-Dade County, including areas such as Hialeah, Pinecrest, Miami Beach, South Miami, Doral, Palmetto Bay, Cutler Bay, Homestead, and surrounding locations.

Hubbs Law Firm offers complimentary consultations for both state and federal cases. During your consultation, our dedicated Miami federal firearm defense attorneys, will conduct a comprehensive assessment of your case. We will also apprise you of any potential defenses to which you may be entitled. Reach out to us today for a comprehensive consultation, and allow us to navigate the complexities of the legal system on your behalf.

Call (305) 570-4802 today to schedule your consultation or contact us online.

Additional Resources

• ATF – Bureau of Alcohol, Tobacco, Firearms and Explosives: The official website of the ATF provides information on federal firearm laws, regulations, and enforcement. It includes resources, forms, and FAQs.
• Federal Firearms Regulations Reference Guide: This ATF guide provides detailed information on federal firearms regulations, helping individuals understand the legal aspects of firearm ownership.
• FBI – The FBI is the leading federal law enforcement agency in conducting criminal investigations including investigations related to illegal firearm possession and use. 
• DOJ – The United States Department of Justice: The DOJ website provides access to federal laws, legal resources, and press releases related to firearm offenses prosecuted by the Department of Justice.