The Code of Virginia imposes severe penalties for gun crimes. The core of a weapons defense case revolves around mitigating or eliminating the aggravating factors that trigger mandatory minimum prison sentences, which are sentences a judge cannot suspend or reduce.

For clients in and around Roanoke, our skilled criminal defense attorney focuses on identifying these factors immediately, as they determine whether the client faces jail time or mandatory prison time. 

Aggravating Factor One: Using a Firearm to Commit a Felony

The most common and severe penalty enhancement is the charge under Virginia Code § 18.2-53.1 (Use or display of firearm in committing felony). This statute creates a separate and distinct felony that is stacked onto the underlying charge.

The Mandatory Consecutive Sentence

A conviction under § 18.2-53.1 requires mandatory minimum prison time that must be served consecutively (one after the other) with the sentence for the primary felony.

  • First Offense: Mandatory minimum term of imprisonment of three years
  • Second or Subsequent Offense: Mandatory minimum term of imprisonment of five years

This enhancement is designed to be tough. For example, a person convicted of Robbery and the corresponding § 18.2-53.1 charge faces the sentence for Robbery plus a minimum of three years added on top. We aim to break this mandatory chain by challenging the underlying felony or the “use” element.

Defining “Use or Display”

The statute applies not only if the firearm is fired, but also if it is:

  • Used or attempted to be used
  • Displayed in a threatening manner while committing or attempting to commit specific felonies, including murder, rape, robbery, or carjacking

The distinction between simply having a weapon present and actively displaying it in a threatening manner often becomes the central battle in the Roanoke Circuit Court.

Aggravating Factor Two: Prior Felony Conviction

The law imposes strict and harsh mandatory minimum sentences on individuals prohibited from possessing a firearm under Virginia Code § 18.2-308.2 (Possession of a firearm by a felon).

The Sentencing Tiers for Felons in Possession

The maximum sentence for possessing a firearm as a felon is generally five years, but the severity is significantly increased by prior history:

  • Prior Violent Felony: If the person was previously convicted of a felony considered “violent” under Code § 17.1-805, they face a mandatory minimum term of five years in prison
  • Prior Non-Violent Felony (Within 10 Years): If the prior felony conviction non-violent and occurred within the last ten years, the person faces a mandatory minimum term of two years in prison
  • Other Felonies: If the person’s felony is non-violent and occurred more than ten years ago, the mandatory minimums do not apply, though the charge remains a serious felony

We challenge these charges by disputing the legal concept of constructive possession, arguing that the client lacked knowledge of the weapon’s presence or the ability to control it. We also verify the classification of the prior felony to ensure the correct mandatory minimum applies.

Aggravating Factor Three: Location and Illegal Weapons

The penalty for possessing a firearm increases based on where the weapon is found or if it is illegally modified.

Gun-Free Zones and School Property

Possessing a firearm in a prohibited public place, such as a courthouse or a school, often results in a penalty enhancement:

  • School Property (Code § 18.2-308.1): Knowingly possessing a firearm on public, private, or religious school property is a Class 6 Felony. Furthermore, intending to use or attempting to use a firearm on school grounds carries a mandatory minimum of five years in prison
  • Courthouses: Carrying a weapon or firearm into the Roanoke City or Roanoke County Courthouse is a Class 1 Misdemeanor, punishable by up to twelve months in jail

Enhanced Penalties for Recidivist Misdemeanors

Even seemingly minor concealed weapon violations can quickly escalate to felonies.

  • Concealed Weapon Without a Permit (Code § 18.2-308):
    • First Offense: Class 1 Misdemeanor, up to one year in jail
    • Second Offense: Class 6 Felony, one to five years in prison
    • Third or Subsequent Offense: Class 5 Felony, one to ten years in prison

Illegal Weapons or Modifications

The simple possession of certain prohibited weapons carries an immediate, severe felony charge:

  • Sawed-Off Shotguns/Rifles: Possession of certain sawed-off firearms is a Class 4 Felony (two to ten years in prison). If such a weapon is used in the commission of a violent felony, the crime is a Class 2 Felony, punishable by up to life in prison

Strategic Defense in Roanoke’s Courts

Faced with these mandatory enhancements, a standard defense is no longer sufficient. It requires a comprehensive strategy that operates at multiple levels in the Roanoke Circuit Court:

  • Challenging the Evidence: We file motions to suppress evidence if the police lacked probable cause for the stop or executed a warrant improperly, which can dismantle the entire charge
  • Mitigating the Enhancement: In cases involving § 18.2-53.1, we fight to negotiate a plea to a lesser offense that is not listed under that statute, thereby eliminating the mandatory consecutive prison term
  • Proving Lack of Intent: For possession charges, we vigorously argue that the client lacked the requisite knowledge or control necessary to prove constructive possession

The Law Office of Seth C. Weston, PLC, provides immediate, dedicated, hands-on legal support to clients facing the severe consequences of enhanced gun crime penalties. When you come to us for legal assistance, our criminal defense lawyer will analyze your situation with precision, focusing on the defense needed to protect your future. 

If you or a loved one is facing gun charges in the Roanoke area, contact us today at (540)-384-4585 for a confidential discussion of your needs. We are prepared to bring clarity and purpose to your complex criminal challenges.