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, some cases involve weapons possession by a defendant who simultaneously maintains more than one disqualifying status under § 922(g). For example, a defendant may be both a convicted felon and a fugitive from justice, or a convicted felon and an illegal alien. By memorandum dated November 3, 1992, the Criminal Division provided policy guidance to the United States Attorney's Offices on the propriety of charging and convicting a defendant who falls under more than one class of persons disqualified from possessing firearms under § 922(g).

In substance, 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. In addition, it is appropriate to present evidence to the factfinder regarding each disqualifying status and to seek a verdict on each separate count. 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, 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 government 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 654, 657 (6th Cir. 1990) (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).

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 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).

[updated January 2020]