Having a Gun During a Felony in Massachusetts: The 5-Year Minimum, Enhanced Penalties, and Your Defenses

If police say you had a gun while committing or attempting a felony, you can face a separate charge under G.L. c. 265, § 18B. It is not a sentencing factor on the other charge. It is its own state prison offense, with a minimum of five years that is added on top of the sentence for the underlying felony. The minimum climbs to 10, 20, or 25 years depending on the weapon and any prior offense. Here is what the Commonwealth has to prove, the penalties, and where a defense comes from.

What § 18B Covers

Section 18B applies to “whoever, while in the commission of or the attempted commission of an offense which may be punished by imprisonment in the state prison, has in his possession or under his control a firearm, as defined in section 121 of chapter 140.” The penalty is “in addition to the penalty for such offense,” so it stacks on whatever sentence the underlying felony carries.

The underlying offense must be one that “may be punished by imprisonment in the state prison,” which is a felony under G.L. c. 274, § 1. The statute covers attempts as well as completed offenses.

What the Commonwealth Must Prove

There is no District Court model jury instruction for § 18B, because it is a state prison offense the District Court cannot finally decide. Read from the statute, the Commonwealth must prove beyond a reasonable doubt that:

• you committed, or attempted to commit, an offense punishable by imprisonment in state prison; and
• while doing so, you had a firearm in your possession or under your control. Possession can be actual or constructive.

For the higher minimums, the Commonwealth must also prove that the weapon was a large capacity firearm or a machine gun, or that you had a prior qualifying offense, as described below.

What Counts as a Firearm, a Large Capacity Firearm, and a Machine Gun

Section 18B uses the definitions in G.L. c. 140, § 121, as rewritten by the 2024 gun law (St. 2024, c. 135):

• Firearm: “a stun gun, pistol, revolver, rifle, shotgun, sawed-off shotgun, large capacity firearm, assault-style firearm and machine gun, loaded or unloaded, which is designed to or may readily be converted to expel a shot or bullet,” including a frame or receiver and an unfinished frame or receiver. Antique and permanently inoperable firearms are excluded.
• Large capacity firearm: a semiautomatic firearm with a fixed large capacity feeding device; a semiautomatic firearm capable of accepting a detachable large capacity feeding device when both are in the same person’s possession or under their control in a vehicle; a firearm with a rotating cylinder holding more than 10 rounds or more than 5 shotgun shells; or an assault-style firearm.
• Machine gun: a firearm that can automatically discharge more than one shot by a continuous activation of the trigger, whether originally made that way or modified by automatic conversion, including a submachine gun.

Penalties

• First offense: not less than 5 years in state prison, in addition to the sentence for the underlying offense.
• First offense with a large capacity firearm or a machine gun: not less than 10 years in state prison.
• Second or subsequent offense: not less than 20 years in state prison, if you previously committed a state-prison offense while possessing or controlling a firearm.
• Second or subsequent offense with a “large capacity semiautomatic firearm” or a machine gun: not less than 25 years in state prison.

No Early Release, No CWOF, No Filing

• No one convicted under § 18B is eligible for probation, parole, furlough, or work release, or any good-conduct deduction, until the minimum term of the additional sentence is served. The only exceptions are narrow temporary releases in custody (a funeral, a critically ill relative, or emergency medical care).
• A sentence for a second or subsequent offense “shall not be reduced nor suspended.”
• Prosecutions “shall neither be continued without a finding nor placed on file.”
• For anyone 18 or older, the court’s general power to place a defendant on probation under G.L. c. 276, § 87 does not apply.

Defenses

• No qualifying felony. If the underlying offense is not proved, or is not punishable by state prison, § 18B fails with it.
• No possession or control. Being near a gun is not possession. Constructive possession requires knowledge plus the ability and intent to control it.
• Not “while” committing the offense. The statute requires possession or control during the commission or attempt. Where the gun was, and when, matters.
• Not a firearm, or not the weapon alleged. The item must meet the § 121 definitions, and the 10- and 25-year tiers require proof that it was a large capacity firearm or a machine gun.
• No qualifying prior. The 20- and 25-year tiers require proof of a prior state-prison offense committed while possessing or controlling a firearm.
• An unlawful search. A gun found in an illegal stop or search may be suppressed. See search and seizure.

Why a Lawyer Matters

A § 18B count can add five years or more of state prison, with no probation, parole, or good time until the minimum is served, to whatever the underlying felony carries. The defense often turns on the underlying charge, on where the gun was and who could reach it, and on what kind of weapon it legally was. The Law Office of William J. Barabino in Medford has over 23 years of experience defending gun charges throughout Greater Boston. Call 781-393-5900 to talk about your case.

Related Charges

• Carrying a firearm (G.L. c. 269, § 10(a)): a gun away from home or business without a license; an 18-month minimum.
• Possession of a firearm (G.L. c. 269, § 10(h)): a gun or ammunition without complying with the licensing law; a misdemeanor.
• Large capacity feeding devices (G.L. c. 140, § 131M; c. 269, § 10(m)): possession of high-capacity magazines.
• Armed career criminal (G.L. c. 269, § 10G): enhanced penalties for certain gun charges after certain prior convictions.
• Untraceable firearm during a felony (G.L. c. 269, § 11B): having an untraceable firearm while committing or attempting a felony; a separate charge with a 2½-year minimum.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.