A federal felon-in-possession case can be built around a firearm that was never fired, displayed, or even found on the accused. When the gun comes from a shared truck, bedroom, or bag, the central question is often not who owned it—it is whether the government can prove who knowingly possessed it.
The prior conviction matters just as much. Prosecutors must prove the accused knew about the status that made firearm possession unlawful, and the record may raise separate questions about pardons, restored rights, or whether the conviction counts at all.
Keith & Lorfing defends people facing federal investigations and firearm charges across West Texas. If you are under investigation for felon in possession, unlawful firearm possession, a gun tied to another federal offense, or another weapons charge, speak with a federal gun charges defense lawyer before answering questions about the firearm, your prior record, or how the gun came into your possession.
What the government must prove under § 922(g)(1)
18 U.S.C. § 922(g) lists nine categories of people who generally may not possess firearms or ammunition. The felon-in-possession provision is subsection (g)(1), which applies to a person convicted of a crime punishable by more than one year in prison.
The government must prove each of these points beyond a reasonable doubt:
A qualifying prior conviction: The accused had been convicted of a crime punishable by more than one year before the alleged possession.
Knowing possession: The accused knowingly possessed, received, shipped, or transported a firearm or ammunition.
Knowledge of prohibited status: At the time, the accused knew about the status that placed them within § 922(g)(1).
Interstate-commerce connection: The firearm or ammunition had moved in or affected interstate or foreign commerce.
The name a state gives an offense does not always control. A state misdemeanor punishable by more than two years may count, while federal law excludes some state misdemeanors carrying two years or less and certain business-related offenses.
Federal law also looks to the law of the jurisdiction where the conviction occurred. Under 18 U.S.C. § 921(a)(20), a conviction that was expunged, set aside, pardoned, or followed by a restoration of civil rights may not count—but the exception can disappear if the relief still restricts firearms.
Felon in possession is only one § 922(g) category
Section 922(g) also addresses fugitives, certain immigration statuses, dishonorable discharges, citizenship renunciants, qualifying domestic-violence orders and convictions, certain mental-health adjudications or commitments, and unlawful controlled-substance use or addiction.
Those provisions do not all raise the same legal questions. In 2026, for example, the Supreme Court held in United States v. Hemani that the government’s broad application of § 922(g)(3) to a regular marijuana user violated the Second Amendment on the facts presented; the Court expressly did not decide the constitutionality of § 922(g)(1).
Possession does not require ownership
The government does not need a receipt showing that the accused bought the firearm. It may prove possession through direct evidence, circumstantial evidence, or both. If prosecutors claim someone else bought the firearm for the accused or that false information was used during the purchase, the case may also involve a separate federal straw purchase allegation.
Actual possession
Actual possession usually means the firearm was on the person or in something the person was carrying. A gun in a hand, waistband, pocket, or personally carried bag may support this theory.
Even then, the government must prove the possession was knowing. Evidence that a person did not know a firearm was inside a borrowed or shared item can matter.
Constructive possession
Constructive possession applies when the gun was not physically on the accused. Prosecutors generally must show knowledge of the firearm and the power and intent to exercise control over it.
Mere proximity is not the same as possession. Being a passenger in a vehicle or present in a home where officers find a gun does not automatically prove control.
The government may point to facts such as:
Control of the location: Who rented, owned, occupied, or had keys to the area where the gun was found?
Personal belongings: Were identification, clothing, mail, or other possessions stored with the firearm?
Statements and messages: Did the accused refer to the gun, describe its location, or claim it?
Forensic evidence: Were usable fingerprints or DNA recovered, and what can that evidence actually establish?
Conduct during the encounter: Did anyone direct officers to the gun, attempt to reach it, or make statements about it?
Possession can be joint, so proof that another person controlled the firearm does not always end the case. In a shared space, however, the government still needs evidence connecting the accused to knowing control rather than relying on presence alone.
What Rehaif changed about the knowledge element
In Rehaif v. United States, the Supreme Court held that the government must prove the defendant knew both that they possessed the firearm and that they belonged to the relevant prohibited category.
For a § 922(g)(1) charge, that generally means proof the person knew they had been convicted of a crime punishable by more than one year. It does not mean prosecutors must prove the person knew § 922(g) existed or understood that federal law prohibited possession.
The distinction is important. A person may know about the conviction but misunderstand the firearm law; that mistake about the law usually does not defeat the charge.
A genuine dispute may exist when the prior record was unusual, the sentence was short, the conviction had been modified, or the person reasonably believed the conviction had been set aside. The Supreme Court has also recognized in Greer v. United States that people with felony convictions will often have difficulty showing they did not know their status, particularly if they served a substantial prison sentence.
How prosecutors try to prove knowledge
The government may use the judgment, plea papers, sentence, time served, probation records, court warnings, and earlier firearm forms. Statements made during the investigation can fill gaps that otherwise existed.
This is one reason an attempt to “clear things up” without counsel can strengthen the case. An admission that the accused knew about the prior conviction or knew exactly where the gun was may help prosecutors prove two different elements.
The interstate-commerce element
Section 922(g) is a federal law, so the government must connect the firearm or ammunition to interstate or foreign commerce. Prosecutors often try to meet this requirement with evidence that the item was manufactured outside Texas and later found in Texas.
The government does not usually need to prove that the accused personally carried the gun across a state line. The defense can still examine the firearm’s identity, serial number, manufacturer, expert testimony, and chain of custody rather than treating this element as automatic.
An alleged weapon must also meet the federal definition of a firearm. Certain antique firearms are excluded, and an object that cannot be identified as a firearm may present a separate proof issue.
Searches, traffic stops, and statements
A § 922(g)(1) case often begins with an encounter that had nothing to do with federal gun law. A traffic stop, probation search, domestic call, drug-and-firearm investigation, or ATF investigation may lead officers to a firearm and a later records check.
The constitutional questions begin before the gun is tested. We examine why officers stopped or detained the person, whether a frisk was justified, what a warrant authorized, who consented, and whether officers stayed within the lawful scope of the search.
If the search violated the Fourth Amendment, the defense may seek to suppress the firearm and evidence that flowed from the unlawful conduct. A successful suppression motion can change the case, but the result depends on the warrant, body-camera video, reports, testimony, and any claimed exception to the warrant requirement.
Statements raise a different set of issues. We review whether the accused was in custody, whether questioning amounted to interrogation, whether officers gave required warnings, and whether any waiver was voluntary.
Penalties and the federal sentencing guidelines
A knowing violation of § 922(g) carries a maximum sentence of 15 years under 18 U.S.C. § 924(a)(8). Sources that still list a 10-year maximum are relying on the law before the Bipartisan Safer Communities Act changed the penalty in 2022. The 15-year maximum is not a standard sentence. The judge calculates an advisory range under U.S. Sentencing Guidelines § 2K2.1.
The guideline calculation may change based on:
The prior record: Some crimes of violence and controlled-substance offenses raise the base offense level.
The firearm: Type, number, stolen status, and an altered or obliterated serial number may affect the range.
The alleged purpose: Possessing or transferring a firearm in connection with another felony can create a substantial increase.
The accused’s role and conduct: Trafficking, obstruction, acceptance of responsibility, and other adjustments may apply.
A cross-reference can produce an even higher range if the firearm was used or possessed in connection with another offense. The exact guideline path matters because two cases with the same § 922(g)(1) charge can produce very different recommendations.
When the Armed Career Criminal Act applies
The Armed Career Criminal Act, or ACCA, can change the sentencing floor from no mandatory minimum to at least 15 years. It applies when a person convicted under § 922(g) has three qualifying earlier convictions for violent felonies, serious drug offenses, or both, committed on occasions different from one another.
The ACCA analysis is not simply a count of felony convictions. The defense must examine the statute of conviction, the permitted court records, the maximum punishment, and whether each offense matches the federal definition.
Do the prior offenses qualify?
Courts commonly use a categorical approach that compares the elements of the earlier offense with the federal definition. The focus is usually on what the statute required, not the prosecutor’s description of what happened.
A state statute that criminalizes more conduct than the ACCA definition may not qualify. When the statute contains alternatives, a court may consult a limited set of records to identify which alternative formed the conviction.
Did the offenses happen on different occasions?
In Wooden v. United States, the Supreme Court explained that timing, location, and the relationship between offenses may help determine whether they occurred on different occasions. Multiple convictions do not necessarily mean multiple occasions.
The Supreme Court added another protection in Erlinger v. United States: a jury, not only a judge, must decide beyond a reasonable doubt whether the prior offenses occurred on different occasions. That finding can determine whether the 15-year minimum applies.
Defenses to a felon-in-possession charge
The right defense depends on the indictment, the prior record, and how officers found the firearm. Our federal gun charges defense attorneys examine possession, prohibited status, search-and-seizure issues, prior convictions, firearm evidence, and sentencing exposure before determining which defenses the record supports.
Possible issues include:
No qualifying conviction: The earlier offense may fall outside § 922(g)(1), or a pardon, expungement, set-aside, or restoration of rights may prevent it from counting.
No knowing possession: The evidence may not show the accused knew the gun was present.
No control over the firearm: A gun found in a shared area may belong to and be controlled by someone else.
No knowledge of status: The government may be unable to prove the required Rehaif element.
Unlawful search or questioning: The firearm or statements may be subject to suppression.
Insufficient firearm or commerce proof: The item, trace evidence, or interstate connection may be disputed.
Second Amendment issue: A constitutional challenge may be available in a narrow, fact-specific case, although current Fifth Circuit law limits many § 922(g)(1) arguments.
ACCA does not apply: One or more prior offenses may fail the federal definition or the different-occasions requirement.
The defense may also consider whether to stipulate to the existence of a qualifying conviction so the jury does not hear unnecessary details about the earlier case. That is a strategic decision, not an automatic step.
Second Amendment challenges after Bruen, Rahimi, and Hemani
The law in this area is still developing, but recent decisions do not create a blanket rule invalidating every § 922(g) charge. Each subsection and each person’s circumstances must be analyzed separately.
In United States v. Rahimi, the Supreme Court upheld § 922(g)(8) as applied to a person subject to a qualifying domestic-violence restraining order after a finding that he posed a credible threat. The Court did not decide a general challenge to § 922(g)(1).
In 2026, Hemani rejected the government’s broad application of the unlawful-drug-user provision to the person before the Court. The opinion expressly left the felon-in-possession provision for another case.
For cases in Texas, Fifth Circuit precedent matters. The court has upheld § 922(g)(1) against facial and as-applied challenges in cases including United States v. Diaz, while leaving room for the analysis to depend on the person’s criminal history and the historical tradition the government identifies.
A Second Amendment argument should not replace stronger factual, search, possession, or sentencing defenses. It should be evaluated under the current law of the court handling the case.
Restoring firearm rights
Restoration and criminal defense are related but separate questions. A pending request for relief does not authorize firearm possession, and a later grant does not necessarily erase an offense that occurred while the prohibition was in effect.
Possible routes may include:
Relief from the convicting jurisdiction: A pardon, expungement, set-aside, or restoration of civil rights may affect whether the conviction counts under § 921(a)(20).
Federal firearm-rights restoration: Section 925(c) authorizes relief from federal firearm disabilities in qualifying cases.
Executive clemency: A pardon for a federal conviction may affect federal firearm consequences, but its wording and scope require review.
In August 2026, the Department of Justice announced a new Federal Firearm Rights Restoration program administered through the Office of the Pardon Attorney. The rollout is staged: invited applications begin September 25, 2026, and DOJ says the first public application window for up to 5,000 people begins November 4, 2026.
Restoration is not automatic, and the program does not remove an independent state-law prohibition. Applicants should check the current DOJ instructions because timing, capacity, documents, fingerprints, references, and presumptive disqualifiers may affect the process.
What to do if agents found or asked about a firearm
Do not guess about whether an old conviction counts, and do not try to solve the problem by explaining the gun’s location. A statement intended to deny ownership can still prove knowledge of the firearm.
Do not move, hide, transfer, or destroy the gun or related evidence after learning of an investigation. Depending on the intent and circumstances, conduct meant to impair an investigation or official proceeding can create separate criminal exposure.
Take practical steps that preserve your options:
Ask for counsel: Clearly state that you want an attorney before answering questions.
Do not consent to an additional search: State that you do not consent, but do not physically interfere with officers.
Preserve the record: Keep plea papers, judgments, sentencing documents, restoration orders, and firearm records.
Write down the encounter: Record what officers said, where they searched, and where each item was found while the details are fresh.
Avoid discussing the case: Calls, messages, social media posts, and conversations with other involved people may become evidence.
Get advice before a proffer or plea: A decision about cooperation can affect the firearm charge, other investigations, and sentencing.
Preserving an item or document does not mean producing it informally. A lawyer can advise how to respond to warrants, subpoenas, court orders, and other lawful demands.
If agents found a firearm, questioned you about your prior record, or asked you to participate in an interview or proffer, contact Keith & Lorfing before making further statements.
How Keith & Lorfing approaches federal firearm cases
We do not begin with the assumption that a gun found near someone belonged to them. We reconstruct the encounter: why officers were there, who controlled the location, what each witness said, what the forensic evidence can show, and whether the prior conviction legally counts.
Russell Lorfing previously served as a federal prosecutor in Lubbock, and our team includes multiple former federal and state prosecutors. That background helps us anticipate the government’s theory while holding prosecutors to every element of the charge.
Our attorneys have more than 75 years of combined experience and have handled more than 500 jury trials. We use that trial experience to assess searches, challenge possession evidence, review prior convictions, and prepare for court rather than treating an indictment as proof.
Talk with a West Texas federal defense lawyer
A § 922(g)(1) charge may look simple on the indictment, but the real case can turn on a shared space, a few words during a search, an old judgment, or one ACCA predicate that does not fit. Those details deserve review before a plea or proffer narrows the available choices.
Keith & Lorfing offers free consultations for people facing federal firearm investigations and charges across West Texas. Call (325) 480-8100 or contact our team to discuss the next step.
Frequently asked questions
Can I be charged if the gun was not mine?
Yes. Ownership is not an element, but the government must still prove knowing possession.
For constructive possession, access alone may not be enough. The evidence must support the conclusion that the accused knew about the gun and had the power and intent to control it.
Does an expunged or pardoned conviction still count?
It depends on the exact relief and the law of the jurisdiction where the conviction occurred. Section 921(a)(20) excludes some expunged, set-aside, pardoned, and rights-restored convictions, but relief that still restricts firearm possession may not remove the federal disability.
What if I did not know I was prohibited from possessing a gun?
Not knowing the federal law is usually not enough. Under Rehaif, the government must prove knowledge of the relevant status, not knowledge that § 922(g) made possession illegal.
The defense may still dispute whether the accused knew the prior conviction was punishable by more than one year. The judgment, sentence, court warnings, and time served can be important evidence.
Will a conviction always mean prison?
No sentence can be predicted from the charge alone. Section 922(g) has no ordinary mandatory minimum, but the advisory guidelines may recommend imprisonment, and the ACCA imposes a 15-year minimum when its requirements are met.
Can a Second Amendment challenge dismiss the charge?
It may be available in a narrow case, but neither Rahimi nor Hemani broadly invalidated § 922(g)(1). In West Texas federal cases, current Fifth Circuit precedent and the facts of the prior conviction are central.
Can I possess a gun while applying to restore my rights?
No. Filing an application does not suspend the federal prohibition.
Possession should wait until valid relief has been granted and any separate Texas or other state-law restrictions have been reviewed. A federal grant does not automatically restore state firearm rights.
