A convicted felon may not possess a firearm.

It is unlawful, it is a crime, it is a felony in its own right.

There are exceptions.  What is a felony in terms of 18 USC §922?

The term “felon” in possession relies on 18 U.S.C. § 922 (g)(1) as anyone who has been convicted of a court of law for a crime punishable by a term exceeding one year.  Okay,  that should be simple enough. So, what does that mean for the defense? The first question to ask is what was the predicate conviction, the conviction upon which the felon in possession charge rests? It may not qualify as a felony under 18 U.S.C. §921 – definitions of terms.  This definition lays out what Congress meant when prohibiting possession of a firearm by persons who ” “been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” § 922 (g)(1).

First, white collar crimes.  “Any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offense relating to the regulation of business practices” ( 18 U.S.C. § 921(20)) is a “white collar” exception to the rule that is built into the statute.  So, the prohibition of possession of a firearm does not apply to a felony conviction involving white collar or business crime.

  • If the predicate conviction is a State felony, then the punishment range of the conviction need only be one year.  Convicted of a felony, punishment range greater than one year, that is a good predicate felony for a Felon in Possession charge.
  • Now take a look at the two year rule as applied to State misdemeanors:
    • If the State crime, the predicate conviction, is classified as a misdemeanor punishable by a term of two years or less and does not otherwise fall under §922(g), then that conviction cannot be used as a predicate conviction. So, there was a plea of guilty, punishable by 18 months in jail, doesn’t fall into §922(g) then that conviction cannot be used as a predicate conviction.
    • If the State crime, the predicate conviction, is classified as a misdemeanor punishable by a term greater than two years then that conviction is considered a felony, regardless of the classification, for Federal Felon in Possession purposes.

The focus then is on felonies.  Congress is trying to make sure that predicate convictions are serious convictions involving either a State classification as a Felony or any crime punishable by a term greater than two years.  If the State conviction is classified as a misdemeanor and the punishment range does not exceed two years then the defendant is not a felon as defined in §922.

So if the predicate offense falls into either of these statutory exceptions of white collar law or “misdemeanors” punishable by sentences under two years, then defendant is not a “felon” as defined in § 922. Therefore state jail felonies, punishable by more than a year, are valid predicate offenses unless they happen to fall under one of the statute’s exceptions.

Criminal Defendants who have had their convictions pardoned or expunged or otherwise had their civil liberties restored, the predicate offense will not serve as a basis for the charge.  It doesn’t happen in Texas very often, but this is an extremely important defense as it “pulls the rug out from under the indictment.”

To determine whether or not the civil liberty restoration aspect applies, the government uses a two prong test. United States v. Chenowith, 459 F.3d 635, (5th Cir. 2006) The first prong the courts use is to examine whether, either automatically or by certificate, essentially all of the person’s civil rights had been restored. Included in the first prong of the Chenowith test, are three civil rights to examine in order to see whether or not there has been an essential restoration of all. These are comprised of the right to vote, the right to seek and hold public office, and the right to serve on a jury. United States v. Huff, 370 F.3d 454, 459-61 (5th Cir. 2004).

Secondly, if it is found that rights have been restored, the courts will look to “whether he ‘was nevertheless expressly deprived of the right to possess a firearm by some provision of the restoration law or procedure of the state of the underlying conviction’” Chenowith, at 637, quoting United States v. Thomas, 991 F.2d 206, 213 (5th Cir. 1993) (emphasis in original).

It is mainly within the province of the state and convicting jurisdiction to restore civil rights. The Supreme Court of the United States has determined that the second prong of Chenowith may be failed if any restriction at all is placed on firearm rights. Caron v. United States, 524 U.S. 308, 118 S. Ct. 2007, 141 L. Ed. 2d 303 (1998) (while restoring essentially all of felon’s civil rights, Massachusetts carved out an exception solely prohibiting the carrying of handguns, this exception was sufficient to not meet the second prong of the test and to render the actor prohibited to possess any firearms under federal law.).

As the Supreme Court noted, Texas is one of several states that does not have a statutory scheme for restoration of rights. Beecham v. United States, 511 U.S. 368, 373 (1994). Additionally, to determine whether a person was still a felon and under the scope of the federal statute, the Courts of Appeals looks to the state law of the predicate conviction to decide if a successful restoration has occurred. Without explicit direction from the Texas Court of Criminal Appeals on the matter, The 5th Circuit found “[t]here is substantial support in Texas law for the proposition that persons convicted of a felony are still considered convicted felons even after they successfully complete community supervision.” United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001)

Defense counsel should be watchful of jury charges. When it comes to defining who is a “felon” under the statute, the government is not required to instruct the jury on the definition of the one year sentence. The Court of Appeals has stated recently that because the definition under § 921(a)(20) including the phrase “crime punishable by imprisonment for a term in excess of one year,” isn’t strictly an element of the offense of § 922(g)(1), that “the district court committed no error in not instructing the jury on that legal definition.”

Jackson Law: Call 214-369-7100, Texas Criminal Defense Lawyers