Post wrongly compares firearm offenses of Hunter Biden and Kodak Black | Fact check

Sudiksha Kochi, USA TODAY
·6 min read
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The claim: Kodak Black and Hunter Biden faced the same charge, but only Black was sentenced to prison

A June 20 Instagram post (direct link, archive link) shows screenshots of two articles: one from the Associated Press titled "Rapper Kodak Black gets over three years in prison in weapons case" and another from the New York Post titled "Hunter Biden to plead guilty to federal tax and gun crime charges.”

"2 tiers of justice?" reads the post's caption. "Kodak was charged for the same crime. Got over 3 years. Mr. Biden will not serve a day. Feels right? Do FBI agents and federal authorities take cases personally?"

The post generated over 3,000 likes in less than a week. Similar posts, including those shared by Republican Georgia Rep. Marjorie Taylor Greene and Republican Florida Rep. Bryon Donalds, have amassed hundreds of interactions on Instagram, Facebook and Twitter.

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Our rating: Partly false

Hunter Biden, the president's son, was charged with illegally possessing a firearm as a drug user, while Kodak Black was charged with falsifying documents to obtain a firearm. While they were charged under the same statute, the charge for each came under different subsections, one based on drug use and the other based on an intent to deceive.

Experts also say the assertion that the two men should have been received similar sentences falls flat because they were not similar defendants: Biden is a first-time offender and Black has prior offenses that factored into his sentence. And if Biden completes a pre-trial program he won't be convicted of the gun offense.

Legal experts say that the two cases are not comparable

On June 20, Biden agreed to plead guilty to two misdemeanor counts and participate in a pretrial program to resolve a felony charge of illegally possessing a firearm as a drug addict, as USA TODAY reported. The program could lead to the dismissal of the gun charge.

The post in question was shared by Bradford Cohen, Black’s lawyer. Black was sentenced to 46 months in prison for falsifying information on federal forms to buy firearms from a gun shop in Florida on two separate occasions in 2019. He reportedly falsified his social security number and lied about being under indictment for a felony offense. Former President Donald Trump commuted Black's sentence before he left office in 2021.

But legal experts said the two firearm cases can’t be compared.

Contrary to the post’s claim, the two men were charged under different sections of the same statute – 18 U.S. Code § 922, according to Bennett Capers, a law professor at Fordham University.

Black was charged with 922(a)(6), which makes it a crime to lie to obtain a firearm with intent to deceive, and Biden was charged with 922(g)(3), which makes it a crime for someone who is using an illegal substance to possess a firearm.

The statutory maximum for both subsections is up to 10 years in prison. But any judge would look at the seriousness of the offense, the willful nature of the criminal conduct, the defendant’s past criminal history, any record of drug abuse or violence and the general background of the defendant when imposing a sentence, according to Joan Meyer, a partner at the law firm Thompson Hine.

In Black’s case, his lengthy record of arrests and crimes factored into his prison sentence, experts said. For instance, he was indicted by a grand jury in 2016 for first-degree criminal sexual conduct, as CNN reported. He later pled guilty to first-degree assault and battery in that case and was sentenced to probation in 2021. He’s also been arrested multiple times and charged with robbery and battery in South Florida, according to the Miami Herald.

“His history and the types of charges he faced justified a prison term; in contrast, Biden is a non-violent first-time offender,” Meyer said in an email. “Biden is not facing the same consequences because the differences between the two do not justify the same treatment.”

Bradley Moss, a national security lawyer, agreed.

"Kodak Black had a lengthy criminal history before he was ever charged with that particular crime, including more than one instance on probation,” Moss said in an email. “His background at sentencing was night and day compared to that of Hunter Biden, even taking into consideration Hunter’s drug problems.”

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Cohen, Black's attorney, told USA TODAY in an email that both Biden and Black lied on the 4473 form to obtain a firearm, so he believes Biden should get a prison sentence like Black did.

But experts say that's an oversimplification.

“There are lots of factors that go into determining what someone’s offense level is, and that’s before we take into account any criminal history,” Capers said. “Two people who commit the same offense can still have wildly different sentences.”

Meyer said that prosecutors were not prohibited from offering pre-trial diversion to Biden.

“While prosecutors typically don’t offer diversion on gun charges, Biden has no criminal history and was not using or brandishing a firearm,” Meyer said. “In contrast, Black has had substantial run-ins with law enforcement and his offense and history justified a decent prison term. The disparity between the two is not extraordinary.”

USA TODAY reached out to the social media users who shared the claim for comment but did not immediately receive a response.

The Associated Press debunked a similar claim.

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This article originally appeared on USA TODAY: Viral post wrongly compares Hunter Biden and Kodak Black cases | Fact check