Hunter Biden Found Guilty, Won't Be Pardoned. Will He Be Incarcerated?

The criminal sagas of America's leading presidential candidates continue. Hunter Biden was convicted in federal court in Delaware on three felony counts:

This is the first time the child of a sitting president has ever been convicted of a crime. Hunter Biden is accused of purchasing a gun while addicted to crack cocaine and lying about his drug use. He had possession of a .38-caliber Colt Cobra revolver for 11 days in 2018.

U.S. Department of Justice Special Counsel David Weiss brought the charges against the President's son after a negotiated plea deal fell apart last September. U.S. District Court Judge Maryellen Noreika questioned the scope of the plea deal, which involved a diversion program regarding the gun charges, and the prosecution and defense subsequently couldn't reach an agreement.

Biden is facing separate tax evasion charges in California, as well. Trial for those charges is slated to begin in September. None of the charges involve President Joe Biden, who was not in court during the trial.

No Pardon Expected. What About an Appeal?

The president reiterated after the trial concluded that he would not pardon his son. As these are federal crimes, Biden has the legal ability to pardon his son, but the political ramifications of doing so could potentially be devastating.

Hunter Biden's attorneys indicated plans to appeal after the decision. As we discussed after former President Trump's conviction, effectively every criminal trial contains grounds for appeal.

Here, we may have some indication of what Hunter Biden's legal team will challenge because the Third Circuit Court of Appeals already dismissed an appeal in May. The appeal was over Judge Noreika's refusal to dismiss the charges.

Hunter Biden argued that he was immune from prosecution under the original plea deal and that the charges were politically motivated. However, the Third Circuit refused to issue a ruling on the merits, writing that they had no legal authority to do so until after the trial had been resolved.

Interestingly, Biden could theoretically also raise Second Amendment issues in this case. Several cases have alleged that various provisions in 18 U.S.C. § 922 are overbroad or unconstitutionally vague, for example. And more challenges to gun regulations have arisen in the wake of the Supreme Court's 2022 Bruen decision.

The Supreme Court is currently considering whether 8 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment. The Biden Administration is arguing that § 922(g)(8) is constitutional. A decision on that case is expected soon.

What Will Sentencing Be?

The sentencing date is tentatively set for about four months from now. Judge Noreika will have to decide what sentence Hunter Biden will receive. The crimes theoretically could carry up to 25 years in prison. However, typically, sentencing for a non-violent gun crime is almost never that severe. According to federal sentencing guidelines, which are not binding, the sentence could be between 15 to 21 months.

It is a bit hard to extrapolate a typical sentence because relatively few federal prosecutions for this crime exist. According to the National Criminal Justice Association, in 2019, the year after Hunter Biden obtained his firearm, the Bureau of Alcohol, Tobacco, and Firearms prosecuted 298 cases, about half the number of referrals they received for lying on Form 4473.

For comparison, there were over 11,000 defendants facing federal gun crime charges in 2019. Most of them faced more than one gun charge and were often involved in violent crimes. So, the percentage of federal prosecutions involving this crime as a standalone charge is minuscule.

Last year, the U.S. Attorney's Office for the Western District of Oklahoma issued a press release highlighting how it would "aggressively pursue" charges relating to lying on Form 4473. Of the few examples cited, the nearest case involved Amy and Kevin Carwile, who were convicted of making false statements to the federal government while selling hundreds of firearms. They each received a three-month sentence and had their licenses to sell firearms revoked.

More to Come

As with Trump's criminal cases, the legal process is far from over. Meanwhile, all of us should be careful about lying to the government, whether it involves payments to porn stars or buying a gun while on crack cocaine.

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