November 3, 1992
TO: All Federal Prosecutors
FROM:Robert S. Mueller, III
Assistant Attorney General
SUBJECT: Prosecutions Under 18 U.S.C. § 922(g)
With the increase in firearms prosecutions resulting from the implementation of Project Triggerlock, federal prosecutors have been faced with a variety of legal issues relating to federal firearms law. An issue that has arisen in prosecutions under 18 U.S.C. § 922(g) involves the propriety of charging and convicting a defendant under more than one subsection of the statute. The issue is whether a defendant who falls under more than one class of persons disqualified from possessing firearms can be charged, convicted, and sentenced for more than one count of unlawful possession of a single firearm.
Title 18, United States Code, Section 922(g) makes it unlawful for certain classes of individuals to ship, transport, possess or receive any firearm or ammunition with the required interstate commerce nexus. Those prohibited classes of persons are: convicted felons (§ 922(g)(1)); fugitives from justice (§ 922(g)(2)); unlawful users or addicts of controlled substances (§ 922(g)(3)); mental defectives (§ 922(g)(4)); illegal aliens (§ 922(g)(5)); dishonorably discharged servicemen (§ 922(g)(6)); and persons who have renounced their U.S. citizenship (§ 922(g)(7)). The penalty provision for a violation of § 922(g) appears at 18 U.S.C. § 924(a)(2), which provides that a person who "knowingly" violates § 922(g) "shall be fined as provided in this title, imprisoned not more than 10 years, or both."
In most prosecutions under 18 U.S.C. § 922(g), the defendant is a previously convicted felon who is in possession of a firearm. However, a number of cases involve weapons possession by a defendant who simultaneously maintains more than one disqualifying status under § 922 (g). For example, there have been cases in which the defendant is both a convicted felon and a fugitive from justice, or a convicted felon and an illegal alien. In these cases, federal prosecutors have raised questions concerning how to charge the defendant and whether such a defendant can be convicted and sentenced under two or more separate subdivisions of § 922(g) for a single instance of possessing a firearm.
It is appropriate to charge a defendant who has multiple disqualifying factors with a separate count of unlawful weapons possession under § 922(g) for each disqualifying status. For instance, a defendant in possession of a firearm who is both a previously convicted felon and a fugitive from justice should be charged in one count with a violation of 18 U.S.C. § 922(g)(1) and in a separate count with a violation of 18 U.S.C. § 922(g)(2). In addition, it is appropriate to present evidence to the factfinder regarding each disqualifying status and to seek a verdict on each separate count. See Ball v. United States, 470 U.S. 856 (1985); United States v. Throneburg, 921 F.2d 654, 656-57 (6th Cir. 1990).
- An important strategic reason to charge separate § 922(g) violations for different status categories is to help assure a conviction even if there is a failure of proof on one of the status categories. It is not unusual in § 922(g) prosecutions for the defendant to challenge his inclusion in a particular status category. See, e.g., United States v. Dahms, 938 F.2d 131 (9th Cir. 1991) (successfully challenging status of convicted felon based upon state restoration of civil rights).
However, because § 922(g) was designed to prohibit the possession of firearms by individuals Congress deemed dangerous, and not to punish such persons solely for having a certain status under the law, it is the Department's position that a defendant should not be punished separately under two or more separate subdivisions of § 922(g) for a single instance of unlawful weapons possession. Federal prosecutors should not seek consecutive or concurrent sentences in this situation. Rather, the United States should urge the court to "merge" or "combine" the multiple § 922(g) convictions based on different statuses into one conviction for sentencing purposes. See United States v. Throneburg, 921 F.2d at 657 (merging separate convictions under § 922(g)(1) for possession of firearm and ammunition for sentencing purposes); United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir. 1984), cert. denied, 474 U.S. 830 (1985) ("combining" separate convictions under 21 U.S.C. §§ 848 and 846); United States v. Fuentes, 729 F. Supp. 487, 492-93 (E.D. Va. 1989), aff'd in part and remanded, 917 F.2d 1302 (4th Cir. 1990), cert. denied, 111 S. Ct. 1397 (1991) ("merging" separate convictions under 21 U.S.C. §§ 848 and 846).
- The Solicitor General recently urged the Supreme Court to grant a certiorari petition in a Fifth Circuit case in which a defendant was sentenced to concurrent terms of imprisonment for convictions under §§ 922(g)(1) and 922(g)(5). Noting that Congress did not intend to authorize multiple punishments under the various subdivisions of § 922(g), the Solicitor General requested the Court to remand the case for the court of appeals to vacate the redundant sentences imposed under the statute. See Brief for the United States at 7-8 in Munoz-Romo v. United States, No. 91-1593 (June 1992).
The "merger" or "combining" of the convictions under separate subdivisions of § 922(g) achieves several salutary effects. First, it protects the Government's interest in safeguarding the validity of each conviction on appeal, should the defendant challenge his inclusion in one of the disqualifying statuses charged in the indictment. See United States v. Aiello, 771 F.2d 621, 634 (2d Cir. 1985) (procedure provides for reactivation of combined or merged conviction if appellate court reverses single conviction for which defendant was sentenced). Second, it assures that the defendant is not punished inappropriately solely for having a certain status under the law. See id. at 633-34 (procedure eliminates risk of adverse collateral consequences flowing from multiple convictions); United States v. Winchester, 916 F.2d 601, 605-08 (11th Cir. 1990) (ruling that it is inappropriate to sentence a defendant with two disqualifying statuses to consecutive terms of imprisonment for a single instance of unlawful weapons possession).
Please assure that cases under 18 U.S.C. § 922(g) that are prosecuted in your district follow the guidance described in this memorandum. If you have any questions concerning this guidance, please contact the Terrorism and Violent Crime Section of the Criminal Division, at (202) 514-0849.
[cited in JM 9-63.514]