Federal Felon in Possession Defense

Federal law makes it a crime for a person previously convicted of a crime punishable by more than one year in prison to possess a firearm or ammunition. Since June 2022 the maximum penalty under 18 U.S.C. § 924(a)(8) has been 15 years, not 10. If the Armed Career Criminal Act applies, the sentence carries a 15-year mandatory minimum.

In recent years the ATF has stepped up enforcement of the federal felon-in-possession law. Commonly called a 922(g) charge, it is one of the most common federal criminal charges in the United States District Court for the Eastern District of Michigan. Our firm has handled many 922(g) cases arising from traffic stops, searches and raids. Detroit, Pontiac, Flint, Waterford and Saginaw are all cities where we see frequent 922(g) enforcement, particularly by the ATF.

If you are reading this after a traffic stop, a search, or a state case that suddenly became a federal one, three things are worth knowing straight away.

The penalty went up. A great deal of what is published about this charge still says the maximum is ten years. It has not been ten years since June 2022.

The Second Amendment argument is real in the Sixth Circuit, but narrow, and it is easy to waive. It is available as an as-applied challenge, and it must be preserved correctly — an ordinary guilty plea destroys it.

If the government is seeking the Armed Career Criminal Act enhancement, the law changed in 2024 in a way that gives you a jury where you used to get only a judge.

What makes a gun case federal instead of a state case?

Most firearm possession cases begin in state court. Some are adopted federally. The decision is made by the United States Attorney's Office, and the consequences are enormous — different sentencing rules, no parole, and in some cases a mandatory minimum that does not exist under Michigan law.

There are common scenarios where the federal government steps in. First, where the person's prior felony is itself a federal felony, there is a far greater chance of a 922(g) charge. Another is where there are additional federal charges in play, such as a drug conspiracy. Another is where the state investigating agency is unable or unwilling to proceed. If there is a hard-to-solve homicide, for example, but a firearm can be attributed to a person with a felony record, the federal government may take the case over, because a much harsher sentence is easier to obtain in federal court for the same conduct.

If the Wayne County Prosecutor dismisses your state felony firearm case, do not assume the matter is finished. It is worth assuming instead that the case may have been referred federally.

Lead trial attorney Jim Amberg has tried 922(g) cases to verdict in the Eastern District of Michigan and has defended related federal firearm charges, including allegations involving attempted murder of federal agents, gang-related homicide, and the Armed Career Criminal Act.

What does the government have to prove?

The Sixth Circuit's Pattern Criminal Jury Instruction 12.01A sets out four elements, each of which must be proved beyond a reasonable doubt:

That the defendant has been convicted of a crime punishable by imprisonment for more than one year.
That the defendant, following that conviction, knowingly possessed the firearm or ammunition specified in the indictment.
That at the time of possession, he knew he had been convicted of a crime punishable by imprisonment for more than one year.
That the firearm or ammunition crossed a state line prior to or during the alleged possession.

The third element is comparatively new. It comes from Rehaif v. United States, 588 U.S. 225 (2019), and it matters: the government must prove not just that you had a qualifying conviction, but that you knew you did. That is not always as obvious as it sounds, particularly where a prior was a plea to something the client understood as a misdemeanor, or where the sentence actually served was short.

A small point that signals whether a page is current: the instruction is now 12.01A. In its 2025 revision the Committee added a new Instruction 12.01B for the Armed Career Criminal Act phase discussed below, and relettered the former 12.01 as 12.01A. The Committee Commentary to 12.01B identifies the Supreme Court's decision in Erlinger as its basis.

What is constructive possession?

You do not have to be holding a gun to be convicted of possessing one. The Sixth Circuit's Pattern Instruction 2.10 defines constructive possession this way:

To establish constructive possession, the government must prove that the defendant had the right to exercise physical control over the [firearm], and knew that he had this right, and that he intended to exercise physical control over [it] at some time, either directly or through other persons.

The limitation in the same instruction is the sentence that decides a great many of these cases:

But understand that just being present where something is located does not equal possession.

That principle traces back to United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977). The Committee Commentary to Instruction 2.10 still identifies Craven as the source of the Sixth Circuit's formulation, and the court has continued to apply it. Possession can also be joint — but Instruction 2.11 carries the same warning: "just being present with others who had possession is not enough to convict."

Cars with several occupants, shared apartments, a firearm in a house where more than one adult lives — these are the fact patterns we have seen and defended in 922(g) cases.

Can you challenge § 922(g)(1) under the Second Amendment in the Sixth Circuit?

Yes, in certain circumstances — but the shape of the argument matters, and so does preserving it.

Facial challenges are foreclosed

In United States v. Williams, 113 F.4th 637 (6th Cir. 2024), the Sixth Circuit held that "[b]ecause, as we discuss below, most applications of § 922(g)(1) are constitutional, the provision is not susceptible to a facial challenge." Id. at 657. A facial challenge in this circuit is therefore raised to preserve the issue, not to win in the district court.

As-applied challenges are available

Williams left a door open. The court's holding:

[W]e hold today that § 922(g)(1) is constitutional on its face and as applied to dangerous people… The history reveals that legislatures may disarm groups of people, like felons, whom the legislature believes to be dangerous—so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.

But the burden is on the defendant, and it is heavy

This is the part that gets misdescribed. The government does not have to prove you are dangerous. You have to prove you are not:

[I]n an as-applied challenge to § 922(g)(1), the burden rests on Williams to show he's not dangerous.

Williams sorted prior convictions into categories. Crimes against the person — murder, rape, assault, robbery — and crimes the court considered inherently dangerous, including drug trafficking and burglary, will make the showing extremely difficult. The court did not decide the harder category: "A more difficult category involves crimes that pose no threat of physical danger, like mail fraud, tax fraud, or making false statements. But such a case is not before us today." That reserved category is where a realistic as-applied challenge lives.

Courts also look past the predicate conviction. Williams directs that a court "may evaluate a defendant's entire criminal record—not just the specific felony underlying his section 922(g)(1) prosecution."

Three decisions since Williams that matter

United States v. Goins, No. 23-5848 (6th Cir. Oct. 8, 2024) (published), applied the framework to a probationer. The court upheld disarmament on three factors taken together: the defendant was subject to a firearm condition of probation, was serving a relatively short probation sentence for a dangerous crime, and had shown a likelihood of future dangerous conduct.
United States v. Morton, No. 24-5022 (6th Cir. Dec. 16, 2024) (published), confirmed that these challenges are reviewed de novo. A footnote in the majority opinion added that "there is significant disagreement about much of the analysis that the Supreme Court should resolve" — a footnote one member of the panel expressly declined to join.
United States v. Hostettler, No. 24-3403 (6th Cir. Mar. 20, 2026) (published), is the most useful of the three for the defense. A criminal history report listing only "the date, agency, charge, and disposition" of past convictions, with "no information about the underlying circumstances," left the district court "unable to make the 'individualized assessment of dangerousness' that our precedent requires." The Sixth Circuit vacated the judgment and remanded.

The Supreme Court has not resolved it

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), deciding a § 922(g)(3) case, the Court expressly reserved the felon-in-possession question: "We do not address 18 U.S.C. § 922(g)(1)'s provision disarming individuals convicted of felonies (often including drug-related ones). . . . None of those issues is before us and we do not pass on them either way." Slip op. at 18. Certiorari has been denied in § 922(g)(1) petitions raising the constitutional question, most recently in June 2026.

How the argument gets lost

An ordinary guilty plea waives it. In United States v. Williams, No. 25-3209 (6th Cir. July 24, 2026) (published) — a different defendant from the 2024 Williams decision above — the Sixth Circuit declined to reach a Second Amendment argument because the defendant had "pleaded guilty unconditionally," and held that "a district court cannot revive a defendant's appellate rights at sentencing by erroneously stating that the defendant has preserved certain issues for appeal." Preserving this issue requires a written conditional plea under Federal Rule of Criminal Procedure 11(a)(2) that identifies the motion. Raising it late drops review to plain error.

What is the Armed Career Criminal Act, and what changed in 2024?

If you have three prior convictions for a violent felony or a serious drug offense, 18 U.S.C. § 924(e) turns a felon-in-possession case into one carrying a fifteen-year mandatory minimum. The statute requires that the three prior offenses were "committed on occasions different from one another."

For years, whether those offenses happened on different occasions was decided by the sentencing judge, on a preponderance of the evidence. That is no longer the law.

Erlinger v. United States

In Erlinger v. United States, 602 U.S. 821 (2024), the Supreme Court held, 6–3:

The Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant's past offenses were committed on separate occasions for ACCA purposes.

That is a structural change in how these cases are tried. A fact that adds fifteen mandatory years is now a jury question, decided unanimously and beyond a reasonable doubt, rather than a judicial finding made at sentencing.

How it is actually tried

By bifurcation. The Supreme Court in Erlinger pointed to it directly. Answering the argument that putting the occasions question to a jury would prejudice defendants, the Court observed that "traditional tools exist to address the prejudicial effect evidence about a defendant's past crimes can have on a jury," and that "[m]ost obviously, a court can bifurcate the proceedings." 602 U.S. at 847.

In practice that means the jury first decides the underlying 922(g) case. If it returns a guilty verdict, a second phase begins before the same jury, in which the government must prove beyond a reasonable doubt that the prior offenses were committed on occasions different from one another.

The Sixth Circuit has adopted a pattern instruction built for precisely this. Instruction 12.01B covers the second phase and comes with a special verdict form. Its Use Note states that it "assumes the trial was bifurcated and covers the second phase when the government has charged the increased penalty under § 924(e)(1)." The second phase opens by telling the jury that its guilty verdict from the first phase "remains in place," and then puts the occasions question to it with the burden on the government.

Lead trial lawyer Jim Amberg tried the first bifurcated ACCA jury trial in the Eastern District of Michigan. The question in the second phase was whether two prior offenses committed about an hour apart were part of the same occasion.

A few things follow from having actually done it. Because the same jury sits for both phases, how the first phase is conducted matters a great deal. Where the facts underlying the 922(g) count are overwhelming, conceding possession can preserve credibility with the jury for the second phase, and it can also keep the government from putting prejudicial material — Rule 404(b) evidence, for example — in front of that jury during the first phase. Being prepared with trial briefs, and with the Sixth Circuit and Eastern District of Michigan opinions on the occasions question, matters as well.

Can offenses far apart in time still be one occasion?

Sometimes. Timing is not the only factor. In Wooden v. United States, 595 U.S. 360 (2022), the Supreme Court rejected a purely time-based test and directed courts to weigh timing, proximity of location, and "the character and relationship of the offenses."

In United States v. Cogdill, No. 22-5603 (6th Cir. Mar. 3, 2025) (published), the Sixth Circuit vacated an ACCA sentence where two methamphetamine offenses were committed roughly three months apart. The court held the Erlinger error was not harmless, because a rational jury could have concluded the two offenses were part of a single criminal episode — the drugs may have come from one source, sold in part in June and possessed for sale in September. The lesson is not that offenses months apart are automatically one occasion. It is that the government now has to prove separateness to a jury, and where the record is thin it may not be able to.

Every case is different, and the consequences of an ACCA finding are severe enough that the analysis is worth doing carefully and early.

One open question worth knowing

In United States v. Durham, Nos. 23-5162/5173 (6th Cir. Aug. 14, 2025) (published), the Sixth Circuit held that "a district court's pre-Erlinger failure to submit the different-occasions question to a jury is subject to harmless error analysis." A sentence can therefore stand if the court concludes beyond a reasonable doubt that the jury would have found the offenses occurred on different occasions. Judge Moore dissented in part, arguing that if "just one reasonable juror could find reasonable doubt" about the occasions question, the error is not harmless and the case must be reversed. Durham also rejected the argument that double jeopardy bars re-litigating the enhancement on remand, treating it as foreclosed by the court's earlier decision in United States v. Thomas.

What about a § 924(c) count?

Where a firearm is used, carried or possessed in furtherance of a drug trafficking crime or a crime of violence, 18 U.S.C. § 924(c) adds a consecutive mandatory sentence on top of everything else: not less than five years, seven if the firearm was brandished, ten if it was discharged. Section 924(c)(1)(B) sets higher floors based on the firearm itself — not less than ten years if it is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, and not less than thirty years if it is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler. The statute directs that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed." § 924(c)(1)(D)(ii).

The First Step Act changed the stacking rule. The twenty-five-year enhancement in § 924(c)(1)(C) now applies only to "a violation of this subsection that occurs after a prior conviction under this subsection has become final." The phrase "second or subsequent conviction" no longer appears in the statute. Multiple § 924(c) counts in a single indictment therefore no longer stack at twenty-five years each. That change is not fully retroactive: by its own terms it reaches offenses committed before 21 December 2018 only where no sentence had been imposed as of that date. Pub. L. 115-391, § 403(b).

Glock switches and machinegun conversion devices

A "Glock switch" — also called an auto sear or a machinegun conversion device — is a small part that makes a semiautomatic pistol fire automatically. Federal law treats it as a machinegun. The definition at 26 U.S.C. § 5845(b) reaches not only a weapon that fires automatically but "any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun." Title 18 adopts that definition at 18 U.S.C. § 921(a)(24). ATF has classified drop-in auto sears as machineguns since ATF Ruling 81-4, and the device qualifies on its own, without a host pistol.

Switches have become common in Detroit and Pontiac, and we have handled a number of these cases. Two very different penalties are in play, and they are frequently confused.

Simple possession. Possessing a machinegun, without more, is charged under 18 U.S.C. § 922(o). The penalty is set by § 924(a)(2): a maximum of ten years, with no mandatory minimum.

Possession connected to another federal crime. Section 924(c) is the provision that carries the thirty years, and it is a mandatory minimum, not a fixed term — the maximum is life. But § 924(c) does not reach mere possession. It applies only where a firearm is used or carried during and in relation to, or possessed in furtherance of, a crime of violence or a drug trafficking crime. Where a § 924(c) count is charged and the firearm is a machinegun, § 924(c)(1)(B)(ii) sets the floor at thirty years, consecutive to everything else. Under Alleyne v. United States, 570 U.S. 99 (2013), the machinegun fact is an element that must be charged and proved to a jury beyond a reasonable doubt.

Whether that enhancement gets charged has varied with Department of Justice policy. The charging policy currently in force, issued 5 February 2025, directs that "in the absence of unusual facts, prosecutors should charge and pursue the most serious, readily provable offense," and defines "most serious" to include offenses carrying "the most significant mandatory minimum sentences." A switch case that might not have drawn the enhancement under earlier policy may draw it now.

The Second Amendment does not help here. In United States v. Bridges, No. 24-5874 (6th Cir. Aug. 7, 2025) (published), a case involving a Glock fitted with a switch, the Sixth Circuit held that "18 U.S.C. § 922(o) is constitutional both on its face and as applied to Bridges."

If you are arrested with a switch by a state trooper or a local police officer, the state charge is not the end of the analysis. These cases are adopted federally.

What should you do now?

Get a lawyer who practices in federal court. Federal procedure, the Sentencing Guidelines and the Eastern District's local rules work differently from state practice. Ask any lawyer you speak with how many federal jury trials they have tried as defense counsel.
Say nothing about the firearm. Not to police, not on a recorded jail line, not to anyone who might be interviewed.
Preserve the Second Amendment issue properly. It has to be raised by motion and, if the case resolves by plea, kept alive by a written conditional plea under Rule 11(a)(2).
Get the prior convictions pulled and examined immediately — the underlying records, not a criminal history printout. Whether they are violent felonies, whether they were committed on different occasions, and what they actually involved decides both the ACCA exposure and any as-applied challenge.
Find out whether the government is seeking the ACCA enhancement, and how it intends to prove the occasions element to a jury.
Do not assume a dismissed state case is over. Federal adoption happens after state charges go away all the time.

Frequently asked questions

What is the maximum sentence for felon in possession?

Fifteen years under 18 U.S.C. § 924(a)(8). The ten-year figure that appears on many websites was the pre-June 2022 penalty and is out of date. If the Armed Career Criminal Act applies, there is also a fifteen-year mandatory minimum.

Can I be convicted if the gun was not mine?

Yes. Constructive possession does not require ownership — the question is whether you had the right to exercise control over it, knew you had that right, and intended to exercise it. But mere presence where a firearm is located is not possession, and that instruction is given to the jury.

Is § 922(g)(1) unconstitutional after Bruen?

Not facially, in the Sixth Circuit. United States v. Williams held the statute is not susceptible to a facial challenge. An as-applied challenge is available, but the burden is on the defendant to show he is not dangerous, and a violent or drug trafficking record makes that very difficult. The Supreme Court has not resolved the question; in June 2026 it expressly reserved it. We have extensive experience litigating these Second Amendment issues, both in the Eastern District of Michigan and in the Sixth Circuit.

Does the government have to prove I knew I was a felon?

Yes. Since Rehaif v. United States, the government must prove you knew you had been convicted of a crime punishable by more than one year in prison.

What is the Armed Career Criminal Act?

A fifteen-year mandatory minimum that applies where a person convicted under § 922(g) has three prior convictions for a violent felony or serious drug offense committed on occasions different from one another.

Who decides whether my priors were on different occasions?

A jury, unanimously and beyond a reasonable doubt, since Erlinger v. United States (2024). It used to be decided by the judge on a preponderance of the evidence. In practice the question is tried in a separate second phase after the possession verdict.

Is a Glock switch a machine gun under federal law?

Yes. The definition of "machinegun" at 26 U.S.C. § 5845(b) covers parts designed and intended to convert a weapon into a machinegun, and the device qualifies on its own. Simple possession is charged under 18 U.S.C. § 922(o), which carries up to ten years. The thirty-year mandatory minimum comes from § 924(c) and applies only where the firearm is tied to a drug trafficking crime or a crime of violence.

My state gun case was dismissed. Can I still be charged federally?

Yes. State dismissal does not prevent federal prosecution, and federal adoption of a case often follows a state case ending.

Can I get my gun rights back after a federal conviction?

This is narrow and fact-specific, and it is a separate question from the criminal case. It should be assessed on its own rather than assumed either way.

Talk to a federal gun lawyer

If you are facing a 922(g) charge in the Eastern District of Michigan, call (248) 681-6255. Related pages: Federal Criminal Defense · Federal Racketeering and RICO · Health Care Fraud Defense · Federal Prison

By James W. Amberg, Amberg & Amberg, PLLC, 32121 Woodward Ave, Suite PH, Royal Oak, MI 48073 · (248) 681-6255 · Michigan bar no. P68564.

Last reviewed: 16 August 2026.