Evans v. Eichenlaub, No. 09-1094 (6th Cir. 2011)
Annotate this CaseDefendant, a pawn shop operator, entered a guilty plea to unlawful receipt and possession of a firearm (26 U.S.C. 5861(d)) and unlawful transfer of a firearm (26 U.S.C. 5861(e)) and was sentenced to 37 months of imprisonment and three years of supervised release. In a habeas corpus petition, defendant argued that his offenses were incorrectly classified as crimes of violence so that 18 U.S.C. 4042(b) requires written notice to state and local law enforcement prior to his release and, during supervised release, a probation officer must provide notice prior to a change in residence. Section 4042(b) defines crime of violence by reference to 18 U.S.C. 924(c)(3). The district court rejected the petition. The Sixth Circuit reversed, after holding that the claims were not rendered moot by defendant's release. Adopting a categorical approach, rather than examination of the facts, the court held that violation of 5861(d) is not a crime of violence under 924(c)(3). Illegal possession may occur under a variety of circumstances; use of physical force is not an element of the crime and there is no inherent risk of force.
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