Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
JUN 15 2004
PATRICK FISHER
TENTH CIRCUIT
Clerk
No. 03-4153
I. INTRODUCTION
The district court concluded that the United States was not entitled to an 18
U.S.C. 3142 hearing to determine whether the defendant-appellee, Kenneth
Rogers, should be detained pending trial on charges of possession of a firearm
while subject to a protection order, in violation of 18 U.S.C. 922(g)(8), and
possession of a firearm following a misdemeanor conviction of domestic violence,
in violation of 18 U.S.C. 922(g)(9). According to the district court, the crimes
set out in Rogers indictment were not crime[s] of violence within the meaning
of 18 U.S.C. 3142(f)(1)(A). Thus, the United States was not entitled to a
detention hearing. Upon consideration of the parties briefs and submissions, this
court concludes that violations of 922(g)(8) and (g)(9) are crime[s] of
violence, entitling the United States to a detention hearing upon its request.
Accordingly, exercising jurisdiction pursuant to 18 U.S.C. 3145(c) and 3731
and 28 U.S.C. 1291, this court reverses the district courts release order. The
case is remanded to the district court to reinstate the findings it made following
the detention hearing 1 and to order Rogers detained pending trial.
As set out more fully below, the district court originally held an 18 U.S.C.
3142 detention hearing in this case, found by clear and convincing evidence that
Rogers was a danger to another person or to the community, and ordered Rogers
detained pending trial. Upon Rogers motion for reconsideration, however, the
district court concluded that it should never have held a detention hearing in the
first place because the crimes at issue in the case were not crime[s] of violence.
(continued...)
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II. BACKGROUND
Rogers was indicted by a federal grand jury for possession of a firearm
while subject to a protection order, in violation of 18 U.S.C. 922(g)(8), and
possession of a firearm following a misdemeanor conviction of domestic violence,
in violation of 18 U.S.C. 922(g)(9). At the governments request, a detention
hearing was held pursuant to 18 U.S.C. 3142(f)(1). After reviewing the Pretrial
Services Report and considering the arguments of the parties presented at the
detention hearing, a magistrate judge ordered Rogers detained pending trial. The
magistrate judge specifically found that there was a serious risk that the
defendant will endanger the safety of another person or the community based on
Rogers outstanding domestic protective orders.
After Rogers filed an objection to the magistrate judges detention order,
the district court held a hearing on the matter. In overruling Rogers objection,
the district court concluded as follows:
The Court first notes that . . . the presumption is that a
defendant be released pending trial, unless there is clear and
convincing evidence that a defendant should be detained. In this
case, the Court finds, consistent with [the magistrate judges]
findings, that there exists clear and convincing evidence that the
defendant is a danger to a person or to the community, and should be
detained. Id.
(...continued)
See 18 U.S.C. 3142(f)(1), (2) (setting out conditions under which a detention
hearing is required upon request of the United States).
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should adopt the reasoning of the Second Circuit in United States v. Dillard, 214
F.3d 88 (2d Cir. 2000) and conclude that each of the weapon- possession crimes
set out in Rogers indictment were crime[s] of violence pursuant to
3142(f)(1)(A). Concluding that Dillard was unpersuasive, the district court
rejected the governments position that possessing a weapon while subject to a
protection order or possessing a weapon following a misdemeanor conviction of
domestic violence were crime[s] of violence for purposes of 3142(f)(1)(A).
Instead, the district court relied on the D.C. Circuits decision in United States v.
Singleton, 182 F.3d 7 (D.C. Cir. 1999) for the proposition that weapon-possession
crimes are not crimes of violence. In particular, the district court concluded that
nothing inherent in a 922(g) offense creates a substantial risk of violence
warranting pretrial detention. Dist. Ct. Order at 6 (quoting Singleton, 182 F.3d
at 15).
(...continued)
offenses. Additionally, pursuant to 3142(f)(2), a detention hearing shall be held
[u]pon motion of the attorney for the Government or upon the judicial officers
own motion in the following two situations: (1) there is a serious risk that the
defendant will flee; or (2) there is a serious risk that the defendant will obstruct
or attempt to obstruct justice or will threaten, injure, or intimidate, a prospective
witness or juror or attempt to do so.
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III. ANALYSIS
On appeal, the government contends the district court erred in concluding
that possession of a firearm while subject to a domestic protection order and
possession of a firearm following a misdemeanor conviction of domestic violence
are not crime[s] of violence for purposes of the Bail Reform Act. 3 This is a
question of the construction and applicability of a federal statute that we review
de novo. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003).
Section 3142(f)(1)(A) of the Bail Reform Act provides that a detention
hearing shall be held upon motion of the attorney for the Government in a case
that involves a crime of violence. The Bail Reform Act defines crime of
violence as follows:
(A) an offense that has 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, 110, or 117 . . . .
The government does not argue that the crimes at issue here fall within the
parameters of any of the other three provisions of 3142(f)(1) or that a detention
hearing was required under the provisions of 3142(f)(2). See infra note 2
(setting out provisions of 3142(f)). Accordingly, this court focuses narrowly on
whether the crimes at issue here are crimes of violence under 3142(f)(1)(A)
entitling the government to a detention hearing upon its request.
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18 U.S.C. 3156(a)(4). It is uncontested that the crimes at issue here do not fit
within the definitions of crime of violence set out in 3156(a)(4)(A) or (C).
Accordingly, the question before this court is whether possession of a firearm
while subject to a domestic protection order and possession of a firearm following
a misdemeanor conviction of domestic violence are felonies that by their very
nature involve a substantial risk that physical force may be used against the
person or property of another in the course of committing the offense. Id.
3156(a)(4)(B). 4
It is clear that each of the crimes at issue here is a felony. See 18 U.S.C.
3156(a)(3) (providing that the term felony means an offense punishable by a
maximum term of imprisonment of more than one year); id. 924(a)(2)
(providing that [w]hoever knowingly violates subsection . . . (g) . . . of section
922 shall be . . . imprisoned not more than ten years).
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Like the majority of the other courts to consider this question, this court
concludes that the use of the term by its nature in 3156(a)(4)(B) mandates a
categorical approach to the determination of whether a given crime fits within
3156(a)(4)(B)s definition of crime of violence. See United States v. Singleton,
182 F.3d 7, 10-12 (D.C. Cir. 1999) (collecting cases); see also Dillard, 214 F.3d
at 92 (noting that a categorical approach is most likely required by the terms of
3156(a)(4)(B), but declining to definitively decide this question because it was
not necessary to the resolution of the appeal). In other words, the possibility of
force must result from the nature of the elements of the offense rather than from
the particular way that the defendant allegedly committed the crime.
Accordingly, this court does not consider the particular circumstances
surrounding Rogers alleged violations of 922(g)(8) and (9). Instead, this court
considers whether possession of a firearm while subject to a domestic protection
order and possession of a firearm following a misdemeanor conviction of
domestic violence, in their generic sense, involve a risk that physical force may
be used against the person or property of another. This approach is perfectly
consistent with our recent decision in United States v. Lucio-Lucio, 347 F.3d
1202, 1204 (10th Cir. 2003) (interpreting 18 U.S.C. 16(b), which contains a
definition of crime of violence identical to the definition in 3156(a)(4)(B), as
mandating the use of a categorical approach, under which a court must only look
to the statutory definition, not the underlying circumstances of the crime
(quotation omitted)).
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regard to the crimes at issue in this case. A defendant whose background includes
domestic violence which advances to either a criminal conviction or the
imposition of a protection order has a demonstrated propensity for the use of
physical violence against others. See 18 U.S.C. 921(a)(33)(A) (providing that
the term misdemeanor crime of domestic violence . . . has, as an element, the use
or attempted use of physical force, or the threatened use of a deadly weapon); id.
922(g)(8) (defining a protection order as an order issued after notice and a
hearing, which restrains a person from engaging in conduct that would place an
intimate partner in reasonable fear of bodily injury, and which includes either a
finding that such person represents a credible threat to the physical safety of an
intimate partner or explicitly restrains the person from engaging in conduct
that would reasonably be expected to cause bodily injury); see also United
States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (noting that protection
orders that fit within the parameters of 922(g)(8) are intended to protect a
person from credible threats and physical force by the restrained party); Gillespie
v. City of Indianapolis, 185 F.3d 693, 706 (7th Cir. 1999) (concluding
Congressional finding that convictions for domestic violence offenses reflect a
propensity to inflict bodily harm upon others was rational).
The dangerousness of guns and their adaptability to use in violent crime is
why Congress has prohibited their possession by individuals subject to a
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F.3d at 9-10. This case, on the other hand, focuses on whether 922(g)(8) and
(9) are crimes of violence. This differing context is key.
In concluding that 922(g)(1) is not a crime of violence under the terms of
the Bail Reform Act, both Singleton and Lane conclude, inter alia, that
922(g)(1) is not a crime of violence because the mere possession of a firearm by a
convicted felon does not create a substantial risk that physical force will be used
against the property or person of another. Lane, 252 F.3d at 906-07; Singleton,
182 F.3d at 14-15. In reaching this conclusion, both courts noted that large
numbers of felonies involve economic, regulatory, or other crimes that do not
entail physical violence at all. Lane, 252 F.3d at 906; Singleton, 182 F.3d at 1415. Thus, both courts noted that although there might be some increased chance
of violence flowing from the possession of a weapon by a felon, that risk could
simply not be classified as substantial. Lane, 252 F.3d at 906-07; Singleton, 182
F.3d at 14-15.
As set out at some length above, however, the underlying actions leading to
the prohibitions in 922(g)(8) and (9) necessarily involve actual violence or
credible threats of violence. This distinction is key to this courts conclusion that
possession of a firearm while subject to a domestic protection order and
possession of a firearm following a misdemeanor conviction of domestic violence
both involve a substantial risk, resulting from the nature of the offense, that
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physical force may be used against the person or property of another. This court
recognizes that the calculus of risk and whether that risk results from the nature
of the offense may well be different with regard to 922(g)(1). We offer no
opinion on that question, however, because it is not before the court. Instead, we
limit our analysis to 922(g)(8) and (9). Accordingly, read in context, this
opinion is not necessarily inconsistent with the decisions in Singleton and Lane.
The more difficult question is whether the substantial risk of physical force
created by the possession of a firearm in violation of 922(g)(8) and (9) occurs in
the course of committing the weapon-offense. As to this question, we conclude
that the analysis of the court in Dillard is quite persuasive:
If one uses a gun in an act of violence, that violence necessarily
occurs during the possession of the gun. Whether the person has
possession of the gun only for a few secondsthe seconds during
which it is used for violent purposesor has possession for years,
but uses it violently only for a few seconds, the violent use in either
case necessarily occurs duringor in the course ofthe possession.
If that possession is illegal because the possessor is a [prohibited
person] who is forbidden from possessing a gun, the violent use will
inevitably have occurred in the course of the commission of the
offense of illegal possession.
214 F.3d at 93-94; see also id. at 94 n.5 (The offense proscribed by section
922(g)(1) is not the felons acquisition of a firearm; it is the felons possession
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driving while intoxicated. 347 F.3d at 1203. Thus, the issue in Lucio-Lucio was
whether felony driving while intoxicated was a crime of violence.
In answering that question in the negative, Lucio-Lucio highlighted the
requirement that the risk of physical force be used in the course of committing
the offense. Id. at 1205. According to Lucio-Lucio,
For a use of force to be in the course of committing the offense,
. . . it must be part of the course of action that the offender
commitsand thus it, too, must be actively committed. [See United
States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001)] (section
16(b) refers only to that physical force that may be used to perpetrate
the offense) (emphasis added); [In re Ramos, 23 I. & N. Dec. 336,
346 (BIA 2002)] (noting that cases have distinguished between
crimes that risk violent conduct and those that merely risk harmful
consequences by requiring the harm to come about through action
rather than inaction); United States v. Gracia-Cantu, 302 F.3d 308,
312-13 (5th Cir.2002) (holding that injury to a child is not a crime of
violence because many convictions for this offense involve an
omission rather than an intentional use of force). Usually, this kind
of active commission carries a connotation of at least some degree of
intent, and we are persuaded that it does so here. [See Bazan-Reyes v.
INS, 256 F.3d 600, 611 (7th Cir. 2001)]; Chapa-Garza, 243 F.3d at
927.
According to the legislative history, the paradigmatic offense
that falls under 16(b) is burglary. S.Rep. No. 98-225, at 307,
reprinted in 1984 U.S.C.C.A.N. at 3486-87. There, what is risked is
not just injury, but intentional violence committed by the offender in
connection with the same general course of action. The burglar thus
risks committing an act of violence in connection with the
commission of the offense.
By contrast, a drunk driver typically does not mean to cause an
accident at all, and can hardly be said to commit the resulting
violence in the same way that a burglar does. Although the drunk
driver recklessly risks harming others, the risk is not that this will
happen intentionally (as in burglary). Rather, it is that the
impairment of the drivers faculties will result in negligent driving,
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it originally held such a hearing and found, by clear and convincing evidence, that
Rogers presented a danger to another person or the community. Rogers does not
challenge that finding on appeal, relying instead exclusively on the assertion that
the government was never entitled to a hearing because the offenses at issue are
not crimes of violence for purposes of the Bail Reform Act. Having rejected that
contention, this court REVERSES the district court and REMANDS the matter
to the district court to reinstate its original findings and to order Rogers detained
pending trial pursuant to the terms of 18 U.S.C. 3142 and 3143. 8
During the pendency of this appeal, the district court suppressed the
firearms underlying the charges in this case. The government filed an appeal of
the district courts suppression order pursuant to 18 U.S.C. 3731. 18 U.S.C.
3143(c) provides that in such circumstances the district court is to treat the
defendant in accordance with section 3142 of this title. In accordance with the
stay previously issued by this court and with 3143(c), Rogers has remained in
detention pending the resolution of the governments appeal of the district courts
suppression order.
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