USA v. Singleton, Carlos T., No. 99-3053 (D.C. Cir. 1999)
Annotate this Case
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 3, 1999 Decided June 25, 1999
No. 99-3053
United States of America, Appellant
v.
Carlos T. Singleton, Appellee
On Consideration of Appellant's Memorandum of Law and Fact Concerning Pretrial Detention, the Memorandum of Law and Fact filed by Amicus Curiae, and the Reply
---------
Appeal from the United States District Court for the District of Columbia (No. 99cr00119-01)
Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellant. With her on the memorandum and reply
were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thom- as J. Tourish, Jr., and John Crabb, Jr., Assistant U.S. Attorneys.
L. Barrett Boss, Assistant Federal Public Defender, ar- gued the cause as amicus curiae on behalf of appellee. With him on the memorandum were A. J. Kramer, Federal Public Defender, and Neil H. Jaffee, Assistant Federal Public De- fender.
Billy L. Ponds, counsel for appellee, adopted the memoran- dum of amicus curiae.
Before: Sentelle, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The United States appeals from a district court order concluding that convicted felons who possess firearms in violation of 18 U.S.C. s 922(g) (1994) have not by that act alone committed a crime of violence warrant- ing pretrial detention. We affirm, holding that the plain meaning of the Bail Reform Act excludes felon-in-possession offenses from the category of violent crimes that trigger detention hearings.
I.
A one count indictment charges appellee Carlos Singleton with possession of a firearm by a convicted felon, in violation of 18 U.S.C. s 922(g).1 After a hearing, a magistrate ordered Singleton detained pending trial because he was charged with a crime of violence, see 18 U.S.C. s 3142(f)(1)(A), and factors enumerated in 18 U.S.C. s 3142(g) warranted detention rath- er than conditional release. Relying on its previous decision in United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C.
__________ 1 Section 922(g) provides in relevant part:
It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting interstate commerce, any firearm or ammunition. 18 U.S.C. s 922(g). 1997), the district court concluded that a felon-in-possession offense under s 922(g) is not a crime of violence authorizing pretrial detention, and therefore conditionally released Sin- gleton pending trial. The United States sought an emergen- cy stay of the order in this court, which the court denied. This appeal followed. See 18 U.S.C. ss 3145(c), 3731.
Under the Bail Reform Act, 18 U.S.C. s 3141 et seq., a person awaiting trial on a federal offense may either be released on personal recognizance or bond, conditionally re- leased, or detained. See 18 U.S.C. s 3142(a). The Act establishes procedures for each form of release, as well as for temporary and pretrial detention. Detention until trial is relatively difficult to impose. First, a judicial officer must find one of six circumstances triggering a detention hearing. See 18 U.S.C. s 3142(f). Absent one of these circumstances, detention is not an option. See, e.g., United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988). Second, assuming a hearing is appropriate, the judicial officer must consider several enu- merated factors to determine whether conditions short of detention will "reasonably assure the appearance of the per- son as required and the safety of any other person and the community." 18 U.S.C. s 3142(g). The judicial officer may order detention if these factors weigh against release.
The s 3142(g) factors are not at issue in the instant appeal, and only one of the triggering circumstances is relevant. Specifically, the government contends, and Singleton dis- putes, that a felon-in-possession charge under s 922(g) alleg- es a "crime of violence," which under s 3142(f)(1)(A) triggers a detention hearing.2
__________ 2 Section 3142(f) provides in part that:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsec- tion (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community--(1) upon motion of the attorney for the Gov- ernment, in a case that involves--(A) a crime of violence; (B) an offense for which the maximum sentence is life imprison- ment or death; (C) an offense for which a maximum term of Congress has defined "crime of violence" in the Bail Re- form Act in three parts, as follows:
the term "crime of violence" means-- (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; or (C) any felony under chapter 109A [18 U.S.C.A. s 2241 et seq.], 110 [18 U.S.C.A. s 2251 et seq.], or 117 [18 U.S.C.A. s 2421 et seq.]. 18 U.S.C. s 3156(a)(4). Subpart C is irrelevant here, as is subpart A because, as the government concedes, use of a firearm is not an element of s 922(g), which encompasses mere possession. Compare 18 U.S.C. s 924(c)(1)(A); Bailey v. United States, 516 U.S. 137, 143 (1995). The open question
__________ imprisonment of ten years or more is prescribed in the Con- trolled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App.1901 et seq.); or (D) any felony if the person has been convicted of two or more offenses described [in clauses A-C], or two or more State or local offenses that would have been offenses described [in clauses A-C] if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or (2) Upon motion of the attorney for the Govern- ment or upon the judicial officer's own motion, in a case that involves--(A) a serious risk that the person will flee; or (B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threat- en, injure, or intimidate, a prospective witness or juror. The hearing shall be held immediately upon the person's first appearance before the judicial officer.... Except for good cause, a continuance on motion of ... the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday). is whether the "nature" of an offense under s 922(g) is such that a "substantial risk" of violence arises "in the course of committing the offense." We first address a threshold issue regarding the methodology for reaching the conclusion that triggers a detention hearing, and then turn to the govern- ment's contention that a felon-in-possession charge under s 922(g) is categorically a crime of violence within the mean- ing of s 3142(f).
II.
The threshold issue is whether the Bail Reform Act re- quires courts to identify crimes of violence on a categorical or case-by-case basis. The government, while expressing a pref- erence for the categorical approach, suggests that the court may also review the specific facts of each s 922(g) charge to determine whether a particular defendant has committed the offense in a violent manner warranting detention. By con- trast, amicus (the Federal Public Defender) joined by Single- ton, maintains that the statute contemplates a categorical rule that would treat all felon-in-possession offenses alike, and label them "crimes of violence" only if the offense by its general nature satisfies s 3142(f).
The weight of authority endorses a categorical approach. With one exception,3 published district court opinions ex- pressly considering the choice between a categorical and case- by-case approach to defining crimes of violence under s 3142(f) have opted for the categorical rule. See, e.g., United States v. Carter, 996 F. Supp. 260, 261-62 (W.D.N.Y. 1998); United States v. Gloster, 969 F. Supp. 92, 94 (D.D.C. 1997); United States v. Washington, 907 F. Supp. 476, 484 (D.D.C. 1995); United States v. Aiken, 775 F. Supp. 855, 856 (D. Md. 1991); United States v. Marzullo, 780 F. Supp. 658, 662 n.8 (W.D. Mo. 1991); United States v. Phillips, 732 F. Supp. 255, 261 (D. Mass. 1990); United States v. Johnson, 704 F. Supp. 1398, 1400 (E.D. Mich. 1988). Although no court of appeals has expressly addressed this question in the context
__________ 3 The exception is United States v. Epps, 987 F. Supp. 22 (D.D.C. 1997), which relied on a flawed description of pretrial detention procedures, as discussed below.
of s 3142(f),4 all three circuits reviewing the identical defini- tion of crimes of violence in 18 U.S.C. s 16 (1994), outside the sentencing context,5 have also applied a categorical approach. See United States v. Baker, 10 F.3d 1374, 1394 (9th Cir. 1993); United States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir. 1993); United States v. Cruz, 805 F.2d 1464, 1469-70 (11th Cir. 1986); see also United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994) (applying categorical approach to "crime of violence" definition in 18 U.S.C. s 924(c)(3)). Cf. Taylor v. United States, 495 U.S. 575, 600-01 (1990).
Weight of authority aside, we conclude from the plain meaning of s 3156 that a categorical approach is required. Each of the three prongs of the statutory definition identify a fixed category of offenses that does not expand or contract based on the factual peculiarities of a particular case. Sec- tion 3156(a)(4)(A) applies only to offenses that have "as an
__________ 4 But cf. United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992) (per curiam) (reviewing the record to assess the nexus between an offense and an act of violence, but not expressly considering or acknowledging the distinction between categorical and case-by-case approaches to s 3142(f) findings).
5 Some courts have applied a case-by-case approach to inter- preting United States Sentencing Guidelines s 4B1.2(a)(1), which defines "crime of violence" in the context of career offender en- hancements in a similar fashion as 18 U.S.C. ss 16 and 3156. See, e.g., United States v. Chapple, 942 F.2d 439, 440-42 (7th Cir. 1991). We need not consider whether this approach is correct because the bail and sentencing provisions are materially different: s 3156 limits the range of predicate offenses to those that "by [their] nature" create a risk of violence, while the sentencing guidelines do not similarly limit review to the "nature" of an offense. Cf. United States v. Valazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) (stressing importance of the phrase "by its nature" in 18 U.S.C. s 16 as incorporated into U.S.S.G. s 2L1.2, for which the court adopted a categorical approach). The apparently more expansive scope of the sentencing inquiry is consistent with the availability of a more extensive record after trial, which makes individualized findings more feasible than they would be immediately following arrest.
element of the offense" aspects of physical force. The term of art "element of the offense" makes clear that a court need look no further than the statute creating the offense to decide whether it describes a crime of violence. Likewise, s 3156(a)(4)(C) applies only to three specifically enumerated statutes, and requires no factual analysis.
Section 3156(a)(4)(B) is a bit more ambiguous than its neighbors, encompassing offenses that do not include violence as an element, but by their "nature" entail a substantial risk of violence. The word "nature" has no plain meaning stand- ing on its own, and might therefore be amenable to conflicting interpretations. However, the word in context, see generally Deal v. United States, 508 U.S. 129, 132 (1993), must be read with the preceding "its," which refers back to "offense," which in the preceding sentence refers to the statutory provision creating a crime rather than the factual incident constituting the crime. Unless the meaning of "offense" metamorphoses from one sentence to the next, which is implausible,6 the use of the word "nature" refers to a legal charge rather than its factual predicate.
This conclusion is consistent with the language of s 3142(g)(1), which permits a judicial officer during a deten- tion hearing to consider the "nature and circumstances of the offense charged" for the purpose of determining whether there are conditions of release that will reasonably assure the return of the person and the safety of others. The distinction between "nature" and "circumstances" clarifies that the for-
__________ 6 Two provisions of s 3156 define "offense," although the defini- tions are identical for present purposes. Subsection a(2) defines it in part as "any criminal offense ... in violation of an Act of Congress," while subsection b(2) defines it in part as "any Federal criminal offense." We read both to refer to criminal statutes, rather than a set of facts constituting a violation of a statute. Technically, these definitions apply only to 18 U.S.C. ss 3141-50 and 3152-55, and thus do not control the use of "offense" elsewhere in s 3156. The definitions are nevertheless instructive because Congress is unlikely to have used a word in one paragraph in a manner that contradicts the definitions of the same word in the same section.
mer refers to the generic offense while the latter encompass- es the manner in which the defendant committed it. Case- specific facts are thus relevant at a detention hearing, see s 3142(g), but not when considering the government's motion under s 3142(f)(1)(A) to hold such a hearing.
The alternative, case-by-case, approach would collapse the distinction between the holding that triggers a detention hearing and the factors relevant at the hearing, which are enumerated in s 3142(g). Section 3142(f) entitles defendants to a prompt detention hearing, either immediately at the defendant's first appearance before a judicial officer, or with- in days thereafter. In recognition of the fact that defendants remain incarcerated between the time the court determines a hearing is necessary and the time the hearing occurs, see s 3142(f), Congress strictly limited the availability of continu- ances. See id. Accordingly, detention hearings normally occur before either side has had an opportunity to develop its evidentiary case, and the court's capacity to reach accurate factual determinations is limited. The decision whether to hold a hearing occurs based on even less information than a decision to detain or release: a detention order is based on a hearing, while an order to hold a hearing is based on a proffer of what the hearing might establish. The single district court concluding that Congress contemplated a case-by-case ap- proach overlooked this distinction, implying that reviewing the "nature" of an offense at the hearing could illuminate whether the hearing itself was appropriate. See United States v. Epps, 987 F. Supp. 22, 24-25 (D.D.C. 1997). This two-tiered hearing-within-a-hearing procedure would protract detention analysis and erase the barrier that Congress con- structed between sections 3142 (f) and (g). Thus, because adopting a case-by-case approach would blur two distinct statutory inquiries and would give more weight to fact- intensive analysis at an earlier stage of the case than Con- gress appears to have intended, we conclude that s 3142(f) contemplates that offenses eligible for pretrial detention hear- ings are ascertainable categorically by reference to their elements, either because these elements entail the use of violence, see s 3156(a)(4)(A), or the risk of violence, see s 3156(a)(4)(B).
At oral argument, the government offered two alternative formulations of the text; neither is persuasive. First, the government attaches significance to the fact that s 3142(f) applies to any "case" that "involves" a crime of violence. Whatever the meaning of "case" and "involves," they clearly apply to--rather than modify--the definition of "crime of violence" in s 3156, and that definition requires a categorical approach to identifying predicate offenses for pretrial deten- tion. Second, the government notes that Congress could have made its intention clearer by including the word "charged" before "offense" in s 3156(a)(4)(B). For the rea- sons already noted, we conclude that the existing language is sufficiently plain to require the categorical approach; the possibility that the statute could have been even plainer does not mean by negative implication that Congress unambigu- ously expressed the opposite intent.
Accordingly, whether a felon-in-possession offense under s 922(g) is a crime of violence under s 3142(f) turns on a question of law to which the underlying facts of a particular case are irrelevant.
III.
Federal courts have divided over whether a felon-in- possession offense is a crime of violence warranting pretrial detention. To date, no court of appeals has issued a publish- ed opinion on the question. Two circuits, including this one, have summarily addressed the issue in unpublished opinions that lack precedential force; a panel of this circuit concluded that s 922(g) is a crime of violence, while a panel of the Sixth Circuit disagreed. See United States v. Floyd, No. 98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10, 1998); United States v. Hardon, No. 98-1625, 1998 WL 320945 (6th Cir. June 4, 1998) (citing United States v. Gloster, 969 F. Supp. 92, 95 (D.D.C. 1997)).7 Reported opinions of district courts also are in dis-
__________ 7 The unpublished order in Floyd does not bind this panel. See D.C. Circuit Rule 28(c); Taylor v. Federal Deposit Ins. Corp., 132 F.3d 753, 761 (D.C. Cir. 1997).
agreement. This district and two other districts have split internally on the question,8 while five districts form a majori- ty characterizing s 922(g) as a crime of violence triggering a detention hearing.9
We begin with the plain meaning of the statute. See generally Bailey, 516 U.S. at 144-45. However, we do not write on a clean slate because the Supreme Court has already recognized that Congress limited pretrial detention of persons who are presumed innocent to a subset of defendants charged with crimes that are "the most serious" compared to other federal offenses. United States v. Salerno, 481 U.S. 739, 747 (1987).10 This construction is consistent with the Senate Report, which states that pretrial detention is necessary for only a "small but identifiable group of particularly dangerous defendants." See S. Rep. No. 98-225, at 6 (1984). That report clearly indicated that "the offenses set forth in subsec- tion f(1) (A) through (C) [of s 3142] are ... essentially the same categories of offenses described in the District of Co-
__________ 8 Compare United States v. Robinson, 27 F. Supp. 2d 1116, 1118 (S.D. Ind. 1998) (not a crime of violence), United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C. 1997) (same), and United States v. Powell, 813 F. Supp. 903, 907-08 (D. Mass 1992) (same) with United States v. Sloan, 820 F. Supp. 1133, 1140 (S.D. Ind. 1993) (crime of violence), United States v. Floyd, 11 F. Supp. 2d 39 (D.D.C.), aff'd, No. 98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10 1998) (same), United States v. Washington, 907 F. Supp. 476, 485 (D.D.C. 1995) (same), and United States v. Phillips, 732 F. Supp. 255, 263 (D. Mass. 1990) (same).
9 See United States v. Chappelle, ___ F. Supp. 2d ____, 1999 WL 305109 (E.D. Va. Apr. 26, 1999); United States v. Campbell, 28 F. Supp. 2d 805, 808-10 (W.D.N.Y. 1998); United States v. Butler, 165 F.R.D. 68, 72 (N.D. Ohio 1996); United States v. Aiken, 775 F. Supp. 855, 856-57 (D. Md. 1991); United States v. Johnson, 704 F. Supp. 1398, 1403 (E.D. Mich. 1988).
10 The Court's construction upholding the pretrial detention statute reflects a concern for the "importan[t] and fundamental nature" of the defendant's "strong interest in liberty," which may be subordinated only to "sufficiently weighty" government interests. Salerno, 481 U.S. at 750.
lumbia Code" for purposes of preventive detention under local law, id. at 20-21, further suggesting that the general lan- guage of the federal statute does not embrace a large catego- ry of possession offenses that the more specific language of the D.C. statute excluded.11 Interpretative uncertainty must be resolved in light of the foregoing understanding of Con- gressional intent.12
The government's theory is that convicted felons who pos- sess firearms are prone to violence, more so than non-felons who possess firearms, and would be inclined to use firearms during a violent incident. Because a "substantial risk" of violence is allegedly inherent in the possession of the gun-- which can quickly escalate to use--the government maintains that a felon's mere possession of a firearm by its nature entails a substantial risk of violence.13 This theory is laden with factual assumptions for which the government offers no
__________ 11 Contrary to the government's statement at oral argument, the fact that firearms possession was not listed in the D.C. Bail Act as an offense triggering a detention hearing because it was not then a felony in the District of Columbia is irrelevant; what the legisla- tive history indicates is that Congress wanted to incorporate the list of crimes that were then listed in the D.C. statute. In referencing the D.C. statute, the Senate Report cited D.C. Code ss 23-1331(3) (defining "dangerous crime") & (4) (defining "crime of violence"), neither of which listed a purely possessory offense of any kind.
12 If the statute were ambiguous, the rule of lenity would require a narrow construction. See, e.g., Bifulco v. United States, 447 U.S. 381, 387 (1980). The rule applies to penalty provisions in criminal statutes, see id., and is appropriate in bail proceedings as well. Cf. Reno v. Koray, 515 U.S. 50, 64 (1995). Given the Supreme Court's narrow interpretation of the pretrial detention provisions in Salerno, 481 U.S. at 747, as well as our analysis of plain meaning, we have no occasion to apply the rule of lenity here.
13 The government also contends that violations of s 922(g) are crimes of violence because felons know that they may not possess firearms, and their decision to do so is therefore a "contemptuous" affront to the law performed in a potentially violent manner. We reject the premise of this argument, which taken to its logical conclusion converts impudence into a proxy for potential violence,
empirical support, but the argument is overstated even if taken at face value because it ignores the limiting language in s 3156(a)(4)(B).
For a risk of violence to matter under s 3142, it must arise "in the course of committing the offense." 18 U.S.C. s 3156(a)(4)(B). The government construes "in the course of" as purely a temporal restraint, such that when commission of one offense correlates with and would occur contemporane- ously with a second, more violent offense, then the violence of the latter offense may be deemed a "risk" of the associated non-violent offense. Thus, because a felon who possesses a firearm violates s 922(g) for the duration of possession, he would violate s 922(g) during any act of violence he may commit with the firearm, and thus these acts of violence would arise "in the course of" a s 922(g) offense. While nimble, this construction fails to respect the words and con- text of s 3156.
First, the nexus requirement in s 3156(a)(4)(B) is more than merely temporal because the phrase "in the course of committing" indicates that some aspect of the charged offense must create the risk of violence in order to itself qualify as a crime of violence. Absent a direct relationship between the offense and a risk of violence, the possibility of violence is not a basis for pretrial detention on a charge that on its face does not involve violence as an element. The classic example of an offense evidencing such a direct relationship is burglary. See, e.g., United States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985); S. Rep. No. 98-225, at 307 (1984). The risk of violence in a burglary is not merely temporally coincident with the offense, but arises from the actions of the burglar in commit- ting the crime itself, and the likely consequences that would ensue upon intervention of another person. This more pre- cise relationship between charged conduct and future risk is necessary to satisfy s 3156(a)(4)(B).14
__________ and thus transforms most felonies into predicates for pretrial detention.
14 Taken literally, the government's temporal relationship theo- ry suggests that obviously non-violent crimes such as felonious
Second, the relationship between possession and use of a firearm is sufficiently attenuated that possession alone does not create a "substantial risk" of use. 18 U.S.C. s 3156(a)(4)(B). As then-Chief Judge Breyer explained in holding that felon-in-possession offenses are not violent felo- nies under s 924(e):
One can easily imagine a significant likelihood that physi- cal harm will often accompany the very conduct that normally constitutes, say, burglary or arson. It is much harder, however, to imagine such a risk of physical harm often accompanying the conduct that normally consti- tutes firearm possession, for simple possession, even by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence. United States v. Doe, 960 F.2d 221, 224-25 (1st Cir. 1992). While felons with guns may as a class be more likely than non-felons with guns or felons without guns to commit violent acts, nothing inherent in a s 922(g) offense creates a "sub- stantial risk" of violence warranting pretrial detention.
Third, even if we accept that a substantial risk of violence arises merely because a potentially violent person possesses an instrumentality of violence, the government's theory would still be overbroad because not all felons are potentially more violent than non-felons. Numerous felonies involve economic crimes or regulatory offenses which, while serious, do not entail a substantial risk of physical force. See, e.g., 18 U.S.C. ss 153 (embezzlement against estate); 289 (false claims for pensions); 335 (circulation of obligations of expired corpora- tions); 602 (solicitation of political contributions); 1025 (false pretenses on the high seas); 1341 (frauds and swindles); 1367 (interference with the operation of a satellite); 1728 (fraudu- lent increase in weight of mail); 1910 (nepotism in appoint- ment of receiver or trustee). Section 3142(f) implicitly recog-
__________ possession of burglar's tools could qualify as violent offenses be- cause they often occur contemporaneously with a violent offense, such as burglary. See, e.g., Va. Code Ann. s 18.2-94; 720 Ill. Comp. Stat. 5/19-2; Wyo. Stat. Ann. s 6-3-304.
nizes this fact because it does not authorize pretrial detention for such offenses. Thus, a person convicted of a non-violent crime does not become a candidate for pretrial detention merely by subsequently possessing a firearm, as such a person does not seem especially more likely to use the firearm in a violent manner. The government opposes this reasoning because s 922(g) does not distinguish between violent and non-violent felonies, reflecting Congressional rec- ognition of the link between felons, guns, and crime. Howev- er, the policy considerations in favor of limiting felons' rights to possess firearms differ substantially from those in favor of pretrial detention of people who are presumed innocent. See Salerno, 481 U.S. at 750 ("The Bail Reform Act ... narrowly focuses on a particularly acute problem" and involves a "particularized governmental interest"). The distinction be- tween violent and non-violent felonies is therefore meaningful in the context of s 3142(f)(1)(A) determinations even though the distinction is irrelevant in s 922(g) cases. Cf. Old Chief v. United States, 519 U.S. 172, 190-91 (1997).
Fourth, interpreting s 3142(f)(1) to exclude felon-in- possession offenses does not deprive the government of an opportunity to detain armed felons when other circumstances warrant. For example, pretrial detention is permissible in s 922(g) cases if the defendant has two prior predicate felony convictions, see s 3142(f)(1)(D), is likely to flee, see s 3142(f)(2)(A), or is likely to obstruct justice, see s 3142(f)(2)(B). When none of these factors is present, how- ever, the government cannot secure detention by squeezing s 922(g) into the "specific category of extremely serious" violent offenses covered by s 3142(f). Salerno, 481 U.S. at 750.
Finally, the government maintains that legislative history of sections 3142 and 922(g) supports the general propositions that felons should not have guns and violent criminals should not obtain bail. However, none of the cited materials address the question under review, which is whether felons who possess firearms have thereby committed a crime of violence sufficient to warrant pretrial detention. Cf. Doe, 960 F.2d at 225-26. Given the plain statutory language, any ambiguous
legislative history must yield to the words Congress used in the statute itself. See, e.g., Salinas v. United States, 118 S. Ct. 469, 474 (1997). Congress is of course free to amend s 3142, but this court is bound by the language that Congress has so far provided.
Our rejection of the government's interpretation is consis- tent with the treatment of "crimes of violence" at sentencing. First, under the Sentencing Guidelines, certain "career of- fenders" may receive enhanced sentences based upon present and past "crime[s] of violence." U.S.S.G. s 4B1.1. The Guidelines define "crime of violence" as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. s 4B1.2(a). In an application note binding on feder- al courts, the Sentencing Commission has excluded felon-in- possession offenses from this definition. See id. s 4B1.2 application note 1; Stinson v. United States, 508 U.S. 36, 47 (1993). Amicus and Singleton reason that because s 4B1.2(a) parallels s 3156(a)(4), the court should read them consistently and exclude felon-in-possession offenses from the latter.
Of course, the Sentencing Commission's interpretation of s 4B1.2(a) is not binding here, both because the Commission lacks authority to interpret s 3156 and because its analysis is not "compelled" by s 4B1.2(a), but is merely a sufficiently plausible interpretation to warrant deference in sentencing cases. Stinson, 508 U.S. at 47. Nevertheless, the overlap between bail and sentencing is striking, at least in the present context. At sentencing, a court has extensive information about a particular offense and the defendant has been found guilty of it. By contrast, before trial the judicial officer has few facts and the defendant is presumed innocent. Yet the purpose of review is similar in both instances because the court must parse violent from non-violent defendants in ap-
plying the more stringent incarceration requirements that Congress imposed on the former. Given that under s 4B1.2 a felon-in-possession charge is never a proxy for violence on a full record when guilt is established, it would be odd to conclude that it is categorically a proxy for violence on a thin record when the presumption of innocence applies. If there were to be a distinction between the two inquiries, it presum- ably would run in the opposite direction.
The same reasoning supports the analogy that amicus and Singleton draw to sentence enhancements under 18 U.S.C. s 924(e) for s 922(g) offenders who have committed three "violent felon[ies]." The term "violent felony" in s 924(e) is similar to the term "crime of violence" in s 4B1.2(a), see 18 U.S.C. s 924(e)(2)(B), and it too has been interpreted to exclude felon-in-possession offenses. See United States v. Oliver, 20 F.3d 415, 417-18 (11th Cir. 1994); Doe, 960 F.2d at 223-26. Cf. United States v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992).15 If s 922(g) violations are not a predicate for lengthening the sentence of convicted armed recidivists, it would be incongruous to hold that the offense nevertheless warrants detention of merely accused armed recidivists. Each context requires the court to implement a congressional policy favoring incapacitation of violent offenders, and we see no reason to suppose that s 922(g) offenses trigger Con- gress's concern in the bail context but not in the sentencing context.
Accordingly, because we conclude that s 3156(a)(4)(B) makes clear that Congress did not include possession of a firearm by a felon within the category of offenses triggering the government's right to a detention hearing under s 3142(f)(1), we hold that Singleton has not been charged with a crime of violence warranting pretrial detention, and we therefore affirm the order of the district court.
__________ 15 Accord Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998) (holding that felon-in-possession offense is not a crime of violence under 18 U.S.C. s 4042(b)(3)(B)); United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (interpreting 18 U.S.C. s 924(c)).
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 3, 1999 Decided June 25, 1999
No. 99-3053
United States of America, Appellant
v.
Carlos T. Singleton, Appellee
On Consideration of Appellant's Memorandum of Law and Fact Concerning Pretrial Detention, the Memorandum of Law and Fact filed by Amicus Curiae, and the Reply
---------
Appeal from the United States District Court for the District of Columbia (No. 99cr00119-01)
Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellant. With her on the memorandum and reply
were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thom- as J. Tourish, Jr., and John Crabb, Jr., Assistant U.S. Attorneys.
L. Barrett Boss, Assistant Federal Public Defender, ar- gued the cause as amicus curiae on behalf of appellee. With him on the memorandum were A. J. Kramer, Federal Public Defender, and Neil H. Jaffee, Assistant Federal Public De- fender.
Billy L. Ponds, counsel for appellee, adopted the memoran- dum of amicus curiae.
Before: Sentelle, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The United States appeals from a district court order concluding that convicted felons who possess firearms in violation of 18 U.S.C. s 922(g) (1994) have not by that act alone committed a crime of violence warrant- ing pretrial detention. We affirm, holding that the plain meaning of the Bail Reform Act excludes felon-in-possession offenses from the category of violent crimes that trigger detention hearings.
I.
A one count indictment charges appellee Carlos Singleton with possession of a firearm by a convicted felon, in violation of 18 U.S.C. s 922(g).1 After a hearing, a magistrate ordered Singleton detained pending trial because he was charged with a crime of violence, see 18 U.S.C. s 3142(f)(1)(A), and factors enumerated in 18 U.S.C. s 3142(g) warranted detention rath- er than conditional release. Relying on its previous decision in United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C.
__________ 1 Section 922(g) provides in relevant part:
It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting interstate commerce, any firearm or ammunition. 18 U.S.C. s 922(g). 1997), the district court concluded that a felon-in-possession offense under s 922(g) is not a crime of violence authorizing pretrial detention, and therefore conditionally released Sin- gleton pending trial. The United States sought an emergen- cy stay of the order in this court, which the court denied. This appeal followed. See 18 U.S.C. ss 3145(c), 3731.
Under the Bail Reform Act, 18 U.S.C. s 3141 et seq., a person awaiting trial on a federal offense may either be released on personal recognizance or bond, conditionally re- leased, or detained. See 18 U.S.C. s 3142(a). The Act establishes procedures for each form of release, as well as for temporary and pretrial detention. Detention until trial is relatively difficult to impose. First, a judicial officer must find one of six circumstances triggering a detention hearing. See 18 U.S.C. s 3142(f). Absent one of these circumstances, detention is not an option. See, e.g., United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988). Second, assuming a hearing is appropriate, the judicial officer must consider several enu- merated factors to determine whether conditions short of detention will "reasonably assure the appearance of the per- son as required and the safety of any other person and the community." 18 U.S.C. s 3142(g). The judicial officer may order detention if these factors weigh against release.
The s 3142(g) factors are not at issue in the instant appeal, and only one of the triggering circumstances is relevant. Specifically, the government contends, and Singleton dis- putes, that a felon-in-possession charge under s 922(g) alleg- es a "crime of violence," which under s 3142(f)(1)(A) triggers a detention hearing.2
__________ 2 Section 3142(f) provides in part that:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsec- tion (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community--(1) upon motion of the attorney for the Gov- ernment, in a case that involves--(A) a crime of violence; (B) an offense for which the maximum sentence is life imprison- ment or death; (C) an offense for which a maximum term of Congress has defined "crime of violence" in the Bail Re- form Act in three parts, as follows:
the term "crime of violence" means-- (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; or (C) any felony under chapter 109A [18 U.S.C.A. s 2241 et seq.], 110 [18 U.S.C.A. s 2251 et seq.], or 117 [18 U.S.C.A. s 2421 et seq.]. 18 U.S.C. s 3156(a)(4). Subpart C is irrelevant here, as is subpart A because, as the government concedes, use of a firearm is not an element of s 922(g), which encompasses mere possession. Compare 18 U.S.C. s 924(c)(1)(A); Bailey v. United States, 516 U.S. 137, 143 (1995). The open question
__________ imprisonment of ten years or more is prescribed in the Con- trolled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App.1901 et seq.); or (D) any felony if the person has been convicted of two or more offenses described [in clauses A-C], or two or more State or local offenses that would have been offenses described [in clauses A-C] if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or (2) Upon motion of the attorney for the Govern- ment or upon the judicial officer's own motion, in a case that involves--(A) a serious risk that the person will flee; or (B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threat- en, injure, or intimidate, a prospective witness or juror. The hearing shall be held immediately upon the person's first appearance before the judicial officer.... Except for good cause, a continuance on motion of ... the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday). is whether the "nature" of an offense under s 922(g) is such that a "substantial risk" of violence arises "in the course of committing the offense." We first address a threshold issue regarding the methodology for reaching the conclusion that triggers a detention hearing, and then turn to the govern- ment's contention that a felon-in-possession charge under s 922(g) is categorically a crime of violence within the mean- ing of s 3142(f).
II.
The threshold issue is whether the Bail Reform Act re- quires courts to identify crimes of violence on a categorical or case-by-case basis. The government, while expressing a pref- erence for the categorical approach, suggests that the court may also review the specific facts of each s 922(g) charge to determine whether a particular defendant has committed the offense in a violent manner warranting detention. By con- trast, amicus (the Federal Public Defender) joined by Single- ton, maintains that the statute contemplates a categorical rule that would treat all felon-in-possession offenses alike, and label them "crimes of violence" only if the offense by its general nature satisfies s 3142(f).
The weight of authority endorses a categorical approach. With one exception,3 published district court opinions ex- pressly considering the choice between a categorical and case- by-case approach to defining crimes of violence under s 3142(f) have opted for the categorical rule. See, e.g., United States v. Carter, 996 F. Supp. 260, 261-62 (W.D.N.Y. 1998); United States v. Gloster, 969 F. Supp. 92, 94 (D.D.C. 1997); United States v. Washington, 907 F. Supp. 476, 484 (D.D.C. 1995); United States v. Aiken, 775 F. Supp. 855, 856 (D. Md. 1991); United States v. Marzullo, 780 F. Supp. 658, 662 n.8 (W.D. Mo. 1991); United States v. Phillips, 732 F. Supp. 255, 261 (D. Mass. 1990); United States v. Johnson, 704 F. Supp. 1398, 1400 (E.D. Mich. 1988). Although no court of appeals has expressly addressed this question in the context
__________ 3 The exception is United States v. Epps, 987 F. Supp. 22 (D.D.C. 1997), which relied on a flawed description of pretrial detention procedures, as discussed below.
of s 3142(f),4 all three circuits reviewing the identical defini- tion of crimes of violence in 18 U.S.C. s 16 (1994), outside the sentencing context,5 have also applied a categorical approach. See United States v. Baker, 10 F.3d 1374, 1394 (9th Cir. 1993); United States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir. 1993); United States v. Cruz, 805 F.2d 1464, 1469-70 (11th Cir. 1986); see also United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994) (applying categorical approach to "crime of violence" definition in 18 U.S.C. s 924(c)(3)). Cf. Taylor v. United States, 495 U.S. 575, 600-01 (1990).
Weight of authority aside, we conclude from the plain meaning of s 3156 that a categorical approach is required. Each of the three prongs of the statutory definition identify a fixed category of offenses that does not expand or contract based on the factual peculiarities of a particular case. Sec- tion 3156(a)(4)(A) applies only to offenses that have "as an
__________ 4 But cf. United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992) (per curiam) (reviewing the record to assess the nexus between an offense and an act of violence, but not expressly considering or acknowledging the distinction between categorical and case-by-case approaches to s 3142(f) findings).
5 Some courts have applied a case-by-case approach to inter- preting United States Sentencing Guidelines s 4B1.2(a)(1), which defines "crime of violence" in the context of career offender en- hancements in a similar fashion as 18 U.S.C. ss 16 and 3156. See, e.g., United States v. Chapple, 942 F.2d 439, 440-42 (7th Cir. 1991). We need not consider whether this approach is correct because the bail and sentencing provisions are materially different: s 3156 limits the range of predicate offenses to those that "by [their] nature" create a risk of violence, while the sentencing guidelines do not similarly limit review to the "nature" of an offense. Cf. United States v. Valazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) (stressing importance of the phrase "by its nature" in 18 U.S.C. s 16 as incorporated into U.S.S.G. s 2L1.2, for which the court adopted a categorical approach). The apparently more expansive scope of the sentencing inquiry is consistent with the availability of a more extensive record after trial, which makes individualized findings more feasible than they would be immediately following arrest.
element of the offense" aspects of physical force. The term of art "element of the offense" makes clear that a court need look no further than the statute creating the offense to decide whether it describes a crime of violence. Likewise, s 3156(a)(4)(C) applies only to three specifically enumerated statutes, and requires no factual analysis.
Section 3156(a)(4)(B) is a bit more ambiguous than its neighbors, encompassing offenses that do not include violence as an element, but by their "nature" entail a substantial risk of violence. The word "nature" has no plain meaning stand- ing on its own, and might therefore be amenable to conflicting interpretations. However, the word in context, see generally Deal v. United States, 508 U.S. 129, 132 (1993), must be read with the preceding "its," which refers back to "offense," which in the preceding sentence refers to the statutory provision creating a crime rather than the factual incident constituting the crime. Unless the meaning of "offense" metamorphoses from one sentence to the next, which is implausible,6 the use of the word "nature" refers to a legal charge rather than its factual predicate.
This conclusion is consistent with the language of s 3142(g)(1), which permits a judicial officer during a deten- tion hearing to consider the "nature and circumstances of the offense charged" for the purpose of determining whether there are conditions of release that will reasonably assure the return of the person and the safety of others. The distinction between "nature" and "circumstances" clarifies that the for-
__________ 6 Two provisions of s 3156 define "offense," although the defini- tions are identical for present purposes. Subsection a(2) defines it in part as "any criminal offense ... in violation of an Act of Congress," while subsection b(2) defines it in part as "any Federal criminal offense." We read both to refer to criminal statutes, rather than a set of facts constituting a violation of a statute. Technically, these definitions apply only to 18 U.S.C. ss 3141-50 and 3152-55, and thus do not control the use of "offense" elsewhere in s 3156. The definitions are nevertheless instructive because Congress is unlikely to have used a word in one paragraph in a manner that contradicts the definitions of the same word in the same section.
mer refers to the generic offense while the latter encompass- es the manner in which the defendant committed it. Case- specific facts are thus relevant at a detention hearing, see s 3142(g), but not when considering the government's motion under s 3142(f)(1)(A) to hold such a hearing.
The alternative, case-by-case, approach would collapse the distinction between the holding that triggers a detention hearing and the factors relevant at the hearing, which are enumerated in s 3142(g). Section 3142(f) entitles defendants to a prompt detention hearing, either immediately at the defendant's first appearance before a judicial officer, or with- in days thereafter. In recognition of the fact that defendants remain incarcerated between the time the court determines a hearing is necessary and the time the hearing occurs, see s 3142(f), Congress strictly limited the availability of continu- ances. See id. Accordingly, detention hearings normally occur before either side has had an opportunity to develop its evidentiary case, and the court's capacity to reach accurate factual determinations is limited. The decision whether to hold a hearing occurs based on even less information than a decision to detain or release: a detention order is based on a hearing, while an order to hold a hearing is based on a proffer of what the hearing might establish. The single district court concluding that Congress contemplated a case-by-case ap- proach overlooked this distinction, implying that reviewing the "nature" of an offense at the hearing could illuminate whether the hearing itself was appropriate. See United States v. Epps, 987 F. Supp. 22, 24-25 (D.D.C. 1997). This two-tiered hearing-within-a-hearing procedure would protract detention analysis and erase the barrier that Congress con- structed between sections 3142 (f) and (g). Thus, because adopting a case-by-case approach would blur two distinct statutory inquiries and would give more weight to fact- intensive analysis at an earlier stage of the case than Con- gress appears to have intended, we conclude that s 3142(f) contemplates that offenses eligible for pretrial detention hear- ings are ascertainable categorically by reference to their elements, either because these elements entail the use of violence, see s 3156(a)(4)(A), or the risk of violence, see s 3156(a)(4)(B).
At oral argument, the government offered two alternative formulations of the text; neither is persuasive. First, the government attaches significance to the fact that s 3142(f) applies to any "case" that "involves" a crime of violence. Whatever the meaning of "case" and "involves," they clearly apply to--rather than modify--the definition of "crime of violence" in s 3156, and that definition requires a categorical approach to identifying predicate offenses for pretrial deten- tion. Second, the government notes that Congress could have made its intention clearer by including the word "charged" before "offense" in s 3156(a)(4)(B). For the rea- sons already noted, we conclude that the existing language is sufficiently plain to require the categorical approach; the possibility that the statute could have been even plainer does not mean by negative implication that Congress unambigu- ously expressed the opposite intent.
Accordingly, whether a felon-in-possession offense under s 922(g) is a crime of violence under s 3142(f) turns on a question of law to which the underlying facts of a particular case are irrelevant.
III.
Federal courts have divided over whether a felon-in- possession offense is a crime of violence warranting pretrial detention. To date, no court of appeals has issued a publish- ed opinion on the question. Two circuits, including this one, have summarily addressed the issue in unpublished opinions that lack precedential force; a panel of this circuit concluded that s 922(g) is a crime of violence, while a panel of the Sixth Circuit disagreed. See United States v. Floyd, No. 98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10, 1998); United States v. Hardon, No. 98-1625, 1998 WL 320945 (6th Cir. June 4, 1998) (citing United States v. Gloster, 969 F. Supp. 92, 95 (D.D.C. 1997)).7 Reported opinions of district courts also are in dis-
__________ 7 The unpublished order in Floyd does not bind this panel. See D.C. Circuit Rule 28(c); Taylor v. Federal Deposit Ins. Corp., 132 F.3d 753, 761 (D.C. Cir. 1997).
agreement. This district and two other districts have split internally on the question,8 while five districts form a majori- ty characterizing s 922(g) as a crime of violence triggering a detention hearing.9
We begin with the plain meaning of the statute. See generally Bailey, 516 U.S. at 144-45. However, we do not write on a clean slate because the Supreme Court has already recognized that Congress limited pretrial detention of persons who are presumed innocent to a subset of defendants charged with crimes that are "the most serious" compared to other federal offenses. United States v. Salerno, 481 U.S. 739, 747 (1987).10 This construction is consistent with the Senate Report, which states that pretrial detention is necessary for only a "small but identifiable group of particularly dangerous defendants." See S. Rep. No. 98-225, at 6 (1984). That report clearly indicated that "the offenses set forth in subsec- tion f(1) (A) through (C) [of s 3142] are ... essentially the same categories of offenses described in the District of Co-
__________ 8 Compare United States v. Robinson, 27 F. Supp. 2d 1116, 1118 (S.D. Ind. 1998) (not a crime of violence), United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C. 1997) (same), and United States v. Powell, 813 F. Supp. 903, 907-08 (D. Mass 1992) (same) with United States v. Sloan, 820 F. Supp. 1133, 1140 (S.D. Ind. 1993) (crime of violence), United States v. Floyd, 11 F. Supp. 2d 39 (D.D.C.), aff'd, No. 98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10 1998) (same), United States v. Washington, 907 F. Supp. 476, 485 (D.D.C. 1995) (same), and United States v. Phillips, 732 F. Supp. 255, 263 (D. Mass. 1990) (same).
9 See United States v. Chappelle, ___ F. Supp. 2d ____, 1999 WL 305109 (E.D. Va. Apr. 26, 1999); United States v. Campbell, 28 F. Supp. 2d 805, 808-10 (W.D.N.Y. 1998); United States v. Butler, 165 F.R.D. 68, 72 (N.D. Ohio 1996); United States v. Aiken, 775 F. Supp. 855, 856-57 (D. Md. 1991); United States v. Johnson, 704 F. Supp. 1398, 1403 (E.D. Mich. 1988).
10 The Court's construction upholding the pretrial detention statute reflects a concern for the "importan[t] and fundamental nature" of the defendant's "strong interest in liberty," which may be subordinated only to "sufficiently weighty" government interests. Salerno, 481 U.S. at 750.
lumbia Code" for purposes of preventive detention under local law, id. at 20-21, further suggesting that the general lan- guage of the federal statute does not embrace a large catego- ry of possession offenses that the more specific language of the D.C. statute excluded.11 Interpretative uncertainty must be resolved in light of the foregoing understanding of Con- gressional intent.12
The government's theory is that convicted felons who pos- sess firearms are prone to violence, more so than non-felons who possess firearms, and would be inclined to use firearms during a violent incident. Because a "substantial risk" of violence is allegedly inherent in the possession of the gun-- which can quickly escalate to use--the government maintains that a felon's mere possession of a firearm by its nature entails a substantial risk of violence.13 This theory is laden with factual assumptions for which the government offers no
__________ 11 Contrary to the government's statement at oral argument, the fact that firearms possession was not listed in the D.C. Bail Act as an offense triggering a detention hearing because it was not then a felony in the District of Columbia is irrelevant; what the legisla- tive history indicates is that Congress wanted to incorporate the list of crimes that were then listed in the D.C. statute. In referencing the D.C. statute, the Senate Report cited D.C. Code ss 23-1331(3) (defining "dangerous crime") & (4) (defining "crime of violence"), neither of which listed a purely possessory offense of any kind.
12 If the statute were ambiguous, the rule of lenity would require a narrow construction. See, e.g., Bifulco v. United States, 447 U.S. 381, 387 (1980). The rule applies to penalty provisions in criminal statutes, see id., and is appropriate in bail proceedings as well. Cf. Reno v. Koray, 515 U.S. 50, 64 (1995). Given the Supreme Court's narrow interpretation of the pretrial detention provisions in Salerno, 481 U.S. at 747, as well as our analysis of plain meaning, we have no occasion to apply the rule of lenity here.
13 The government also contends that violations of s 922(g) are crimes of violence because felons know that they may not possess firearms, and their decision to do so is therefore a "contemptuous" affront to the law performed in a potentially violent manner. We reject the premise of this argument, which taken to its logical conclusion converts impudence into a proxy for potential violence,
empirical support, but the argument is overstated even if taken at face value because it ignores the limiting language in s 3156(a)(4)(B).
For a risk of violence to matter under s 3142, it must arise "in the course of committing the offense." 18 U.S.C. s 3156(a)(4)(B). The government construes "in the course of" as purely a temporal restraint, such that when commission of one offense correlates with and would occur contemporane- ously with a second, more violent offense, then the violence of the latter offense may be deemed a "risk" of the associated non-violent offense. Thus, because a felon who possesses a firearm violates s 922(g) for the duration of possession, he would violate s 922(g) during any act of violence he may commit with the firearm, and thus these acts of violence would arise "in the course of" a s 922(g) offense. While nimble, this construction fails to respect the words and con- text of s 3156.
First, the nexus requirement in s 3156(a)(4)(B) is more than merely temporal because the phrase "in the course of committing" indicates that some aspect of the charged offense must create the risk of violence in order to itself qualify as a crime of violence. Absent a direct relationship between the offense and a risk of violence, the possibility of violence is not a basis for pretrial detention on a charge that on its face does not involve violence as an element. The classic example of an offense evidencing such a direct relationship is burglary. See, e.g., United States v. Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985); S. Rep. No. 98-225, at 307 (1984). The risk of violence in a burglary is not merely temporally coincident with the offense, but arises from the actions of the burglar in commit- ting the crime itself, and the likely consequences that would ensue upon intervention of another person. This more pre- cise relationship between charged conduct and future risk is necessary to satisfy s 3156(a)(4)(B).14
__________ and thus transforms most felonies into predicates for pretrial detention.
14 Taken literally, the government's temporal relationship theo- ry suggests that obviously non-violent crimes such as felonious
Second, the relationship between possession and use of a firearm is sufficiently attenuated that possession alone does not create a "substantial risk" of use. 18 U.S.C. s 3156(a)(4)(B). As then-Chief Judge Breyer explained in holding that felon-in-possession offenses are not violent felo- nies under s 924(e):
One can easily imagine a significant likelihood that physi- cal harm will often accompany the very conduct that normally constitutes, say, burglary or arson. It is much harder, however, to imagine such a risk of physical harm often accompanying the conduct that normally consti- tutes firearm possession, for simple possession, even by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence. United States v. Doe, 960 F.2d 221, 224-25 (1st Cir. 1992). While felons with guns may as a class be more likely than non-felons with guns or felons without guns to commit violent acts, nothing inherent in a s 922(g) offense creates a "sub- stantial risk" of violence warranting pretrial detention.
Third, even if we accept that a substantial risk of violence arises merely because a potentially violent person possesses an instrumentality of violence, the government's theory would still be overbroad because not all felons are potentially more violent than non-felons. Numerous felonies involve economic crimes or regulatory offenses which, while serious, do not entail a substantial risk of physical force. See, e.g., 18 U.S.C. ss 153 (embezzlement against estate); 289 (false claims for pensions); 335 (circulation of obligations of expired corpora- tions); 602 (solicitation of political contributions); 1025 (false pretenses on the high seas); 1341 (frauds and swindles); 1367 (interference with the operation of a satellite); 1728 (fraudu- lent increase in weight of mail); 1910 (nepotism in appoint- ment of receiver or trustee). Section 3142(f) implicitly recog-
__________ possession of burglar's tools could qualify as violent offenses be- cause they often occur contemporaneously with a violent offense, such as burglary. See, e.g., Va. Code Ann. s 18.2-94; 720 Ill. Comp. Stat. 5/19-2; Wyo. Stat. Ann. s 6-3-304.
nizes this fact because it does not authorize pretrial detention for such offenses. Thus, a person convicted of a non-violent crime does not become a candidate for pretrial detention merely by subsequently possessing a firearm, as such a person does not seem especially more likely to use the firearm in a violent manner. The government opposes this reasoning because s 922(g) does not distinguish between violent and non-violent felonies, reflecting Congressional rec- ognition of the link between felons, guns, and crime. Howev- er, the policy considerations in favor of limiting felons' rights to possess firearms differ substantially from those in favor of pretrial detention of people who are presumed innocent. See Salerno, 481 U.S. at 750 ("The Bail Reform Act ... narrowly focuses on a particularly acute problem" and involves a "particularized governmental interest"). The distinction be- tween violent and non-violent felonies is therefore meaningful in the context of s 3142(f)(1)(A) determinations even though the distinction is irrelevant in s 922(g) cases. Cf. Old Chief v. United States, 519 U.S. 172, 190-91 (1997).
Fourth, interpreting s 3142(f)(1) to exclude felon-in- possession offenses does not deprive the government of an opportunity to detain armed felons when other circumstances warrant. For example, pretrial detention is permissible in s 922(g) cases if the defendant has two prior predicate felony convictions, see s 3142(f)(1)(D), is likely to flee, see s 3142(f)(2)(A), or is likely to obstruct justice, see s 3142(f)(2)(B). When none of these factors is present, how- ever, the government cannot secure detention by squeezing s 922(g) into the "specific category of extremely serious" violent offenses covered by s 3142(f). Salerno, 481 U.S. at 750.
Finally, the government maintains that legislative history of sections 3142 and 922(g) supports the general propositions that felons should not have guns and violent criminals should not obtain bail. However, none of the cited materials address the question under review, which is whether felons who possess firearms have thereby committed a crime of violence sufficient to warrant pretrial detention. Cf. Doe, 960 F.2d at 225-26. Given the plain statutory language, any ambiguous
legislative history must yield to the words Congress used in the statute itself. See, e.g., Salinas v. United States, 118 S. Ct. 469, 474 (1997). Congress is of course free to amend s 3142, but this court is bound by the language that Congress has so far provided.
Our rejection of the government's interpretation is consis- tent with the treatment of "crimes of violence" at sentencing. First, under the Sentencing Guidelines, certain "career of- fenders" may receive enhanced sentences based upon present and past "crime[s] of violence." U.S.S.G. s 4B1.1. The Guidelines define "crime of violence" as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. s 4B1.2(a). In an application note binding on feder- al courts, the Sentencing Commission has excluded felon-in- possession offenses from this definition. See id. s 4B1.2 application note 1; Stinson v. United States, 508 U.S. 36, 47 (1993). Amicus and Singleton reason that because s 4B1.2(a) parallels s 3156(a)(4), the court should read them consistently and exclude felon-in-possession offenses from the latter.
Of course, the Sentencing Commission's interpretation of s 4B1.2(a) is not binding here, both because the Commission lacks authority to interpret s 3156 and because its analysis is not "compelled" by s 4B1.2(a), but is merely a sufficiently plausible interpretation to warrant deference in sentencing cases. Stinson, 508 U.S. at 47. Nevertheless, the overlap between bail and sentencing is striking, at least in the present context. At sentencing, a court has extensive information about a particular offense and the defendant has been found guilty of it. By contrast, before trial the judicial officer has few facts and the defendant is presumed innocent. Yet the purpose of review is similar in both instances because the court must parse violent from non-violent defendants in ap-
plying the more stringent incarceration requirements that Congress imposed on the former. Given that under s 4B1.2 a felon-in-possession charge is never a proxy for violence on a full record when guilt is established, it would be odd to conclude that it is categorically a proxy for violence on a thin record when the presumption of innocence applies. If there were to be a distinction between the two inquiries, it presum- ably would run in the opposite direction.
The same reasoning supports the analogy that amicus and Singleton draw to sentence enhancements under 18 U.S.C. s 924(e) for s 922(g) offenders who have committed three "violent felon[ies]." The term "violent felony" in s 924(e) is similar to the term "crime of violence" in s 4B1.2(a), see 18 U.S.C. s 924(e)(2)(B), and it too has been interpreted to exclude felon-in-possession offenses. See United States v. Oliver, 20 F.3d 415, 417-18 (11th Cir. 1994); Doe, 960 F.2d at 223-26. Cf. United States v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992).15 If s 922(g) violations are not a predicate for lengthening the sentence of convicted armed recidivists, it would be incongruous to hold that the offense nevertheless warrants detention of merely accused armed recidivists. Each context requires the court to implement a congressional policy favoring incapacitation of violent offenders, and we see no reason to suppose that s 922(g) offenses trigger Con- gress's concern in the bail context but not in the sentencing context.
Accordingly, because we conclude that s 3156(a)(4)(B) makes clear that Congress did not include possession of a firearm by a felon within the category of offenses triggering the government's right to a detention hearing under s 3142(f)(1), we hold that Singleton has not been charged with a crime of violence warranting pretrial detention, and we therefore affirm the order of the district court.
__________ 15 Accord Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998) (holding that felon-in-possession offense is not a crime of violence under 18 U.S.C. s 4042(b)(3)(B)); United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (interpreting 18 U.S.C. s 924(c)).
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