                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2005

USA v. Bowers
Precedential or Non-Precedential: Precedential

Docket No. 05-4908




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                                           PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 05-4908


              UNITED STATES OF AMERICA

                               v.

                    RYSHEEN BOWERS,
                                   Appellant



        On Appeal from the United States District Court
                  for the District of Delaware
                    (D.C. No. 04-cr-00133)
        District Judge: Honorable Joseph J. Farnan, Jr.



     Submitted on Motion for Bail Pursuant to FRAP 9(a)
                    November 9, 2005

 Before: RENDELL, AMBRO, and BECKER, Circuit Judges.

                  (Filed: December 27, 2005 )



COLM F. CONNOLLY
United States Attorney
SHANNON T. HANSON
Assistant United States Attorney
1007 Orange Street
Suite 700
Wilmington, DE 19899
       Attorneys for Appellee
PENNY MARSHALL
JONATHAN PIGNOLI
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
       Attorneys for Appellant
                          ____________

                  OPINION OF THE COURT
                      _____________

BECKER, Circuit Judge.

        This appeal addresses the motion of defendant Rysheen
Bowers to set aside the District Court’s affirmance of the
Magistrate Judge’s order denying pretrial release. The District
Court concluded that the Magistrate Judge did not err in holding
a detention hearing or in ordering Bowers detained. The District
Court’s decision was predicated largely upon its conclusion that
the crime with which Bowers was charged, felon in possession
of a firearm, 18 U.S.C. § 922(g)(1), is a crime of violence within
the meaning of 18 U.S.C. §§ 3142(g) and (f)(1)(A). Section
3142(f)(1)(A) requires a Court to hold a detention hearing upon
motion by the government if the defendant is charged with a
crime of violence. Section 3142(g) lists factors that a Court
must consider in deciding whether to release a defendant
pending trial, “including whether the offense is a crime of
violence.” 18 U.S.C. § 3142(g)(1).
        Under 18 U.S.C. § 3156(a)(4), the term “crime of
violence,” for purposes of both Sections 3142(g) and 3142
(f)(1)(A), means:

       (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

                                2
       (C) any felony under chapter 109A, 110, or 117.

        Subpart C does not apply here, and neither does subpart
A, because the actual use of the firearm in the felon’s possession
is not an element of the violation of § 922(g)(1). United States
v. Singleton, 182 F.3d 7, 10 (D.C. Cir. 1999). Thus, a felon in
possession has committed a crime of violence only if the nature
of that offense is such that there is a “substantial risk” that he
will use “physical force” against another “in the course of” his
possession of the weapon.
        In accordance with the weight of authority of the four
circuits that have decided the issue, and with our own opinion
dealing with whether felon in possession of a firearm is a crime
of violence under a nearly identical statute, we conclude that the
crime of felon in possession is not a crime of violence within the
meaning of § 3156(a)(4). We will therefore vacate the order of
the District Court. However, we will remand for further
proceedings so that the District Court may determine, in spite of
our holding that felon in possession of a firearm is not a crime of
violence, whether § 3142(f) requires a detention hearing and
whether the § 3142(g) factors requires Bowers’ detention.

          I. FACTS AND PROCEDURAL HISTORY

        Bowers is currently charged in a one-count indictment
alleging that he possessed a firearm as a felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). The charge results from the
discovery of a firearm during an administrative search of Bowers’
home by Delaware police and probation officers. Bowers was on
probation at the time of the administrative search.
        On January 6, 2004, the Magistrate Judge held a detention
hearing, and he issued a detention order on March 3, 2005. The
District Court affirmed the Magistrate Judge’s order on October 25,
2005. The District Court found that the detention hearing was
justified under § 3142(f)(1)(A) because felon in possession of a
firearm is a crime of violence and thus did not reach the
government’s contention that the detention hearing was justified
because Bowers is a flight risk under § 3142(f)(2)(A). Relying
heavily on the conclusion that felon in possession of a firearm is
also a crime of violence under § 3142(g), the District Court further
held that the Magistrate Judge had properly ordered Bowers

                                 3
detained.
        The District Court also considered several other factors that
support detention under § 3142(g). First, there was strong
evidence that Bowers is guilty of the current charge, because
officers claim to have seen him throw a pistol out of a window in
his home during the administrative search. Second, Bowers was
on unsupervised state probation at the time of the alleged offense.
Third, during both the administrative search and his later arrest,
Bowers was “initially uncooperative,” and law enforcement
officers had to enter with force. Fourth, Bowers “has an extensive
criminal history that includes a felony conviction for possession of
cocaine with intent to distribute, and charges of resisting arrest,
criminal impersonation, drug offenses, carrying a concealed deadly
weapon, and assault.” Finally, Bowers had allegedly failed to
appear in state court, resulting in five capiases. Bowers disputes
the significance of the capiases, because they contained a return
stating that he “was not found guilty of nonappearance,” and that
there is no allegation that his bond status changed as a result of any
of the capiases. In addition, there was no evidence that he had
received actual notice in the applicable cases.
        There was considerable countervailing evidence inveighing
against detention, including Bowers’ strong family and community
ties, the fact that he had employment prospects, and the fact that he
did not flee after he was released on bail for a closely related state
charge.1 In addition, it was argued that Bowers will not flee
because the sentence he faces is not severe. Bowers submitted
letters from employers stating that they would employ him on
release and a number of letters from members of his family and
community. Bowers’ mother, who has Crohn’s disease, testified
that Bowers “has been coming over to the house every day
checking on me, running errands for me.” Bowers also has a
young son.

                         II. DISCUSSION

       As an initial matter, we must determine whether §


       1
        Bowers was initially charged for possession as a felon
under Delaware law and was charged with the present federal
offense after he was released on bail in Delaware state court.

                                  4
3156(a)(4) requires us to classify offenses as violent or nonviolent
on a categorical or a case-by-case basis. In other words, is an
offense violent due to the generic offense charged or because of the
facts underlying a particular case? We are persuaded by the
reasoning of the D.C. Circuit that the word “offense” as used in §
3156(a)(4) “refers to a legal charge rather than its factual
predicate.” United States v. Singleton, 182 F.3d 7, 10 (D.C. Cir.
1999). As the D.C. Circuit noted, “[t]he weight of authority
endorses a categorical approach.” See id. at 10 & n.3 (collecting
cases).
        This conclusion is consistent with our jurisprudence, for we
have applied the categorical approach to a statute that defines
“crime of violence” in terms almost identical to those of §
3156(a)(4). See Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998).
Thus, we consider whether a § 922(g)(1) offense is categorically a
crime of violence, as opposed to whether Bowers’ alleged conduct
in this case was violent.
        As noted above, four Courts of Appeals have considered
whether felon in possession of a firearm,18 U.S.C. § 922(g)(1), is
a “crime of violence” as that term is defined by 18 U.S.C. §
3156(a)(4). The District of Columbia, Seventh, and Eleventh
Circuits have held that felon in possession of a firearm is not a
crime of violence. See United States v. Johnson, 399 F.3d 1297
(11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir.
2001); Singleton, 182 F.3d 7. One Court has disagreed. See
United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). In view of the
comprehensive opinions of the District of Columbia, Seventh and
Eleventh Circuits, with which we agree, we need not reinvent the
wheel. Rather, we draw upon the consistent views of these Courts
in explicating our ratio decidendi. We distill the most persuasive
reasons underlying the decisions of these Courts.
        First, the plain language of § 3156(a)(4)(B) applies only
to crimes that “involve[] a substantial risk” of violence. 18
U.S.C. § 3156(a)(4)(B). A substantial risk means “a direct
relationship between the offense and a risk of violence.”
Singleton, 182 F.3d at 14. Establishing such a link between
possession of a firearm to potential violence requires
unwarranted “factual assumptions.” Id. at 14. In contrast to
crimes such as arson, possession of a firearm can occur in an
array of non-violent circumstances, weakening the link between
possession and violence:

                                 5
       “One can easily imagine a significant likelihood
       that physical 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 constitutes 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.”

Id. at 14-15 (quoting United States v. Doe, 960 F.2d 21, 224-25
(1st Cir. 1992) (Breyer, C.J.)); see also Lane, 252 F.3d at 906
(“[E]x-felons have the same motives as lawful possessors of
firearms to possess a firearm--self-defense, hunting, gun
collecting, and target practice.”); Johnson, 399 F.3d at 1300
(“Simple possession, even by a felon, can take many forms.”).
    The manner in which Bowers’ firearm was discovered
illustrates then-Chief Judge Breyer’s observation in Doe. In the
middle of the night, police and parole officers surprised Bowers
in his home, and there is no suggestion that he was engaged in
violent activity.
        Second, and relatedly, the mere fact that the particular
individual who possesses a firearm is a felon does not permit an
inference that he will use the weapon violently. Singleton, 182
F.3d at 15. Felons are not necessarily prone to violence, for
“[n]umerous felonies involve economic crimes or regulatory
offenses which, while serious, do not entail a substantial risk of
physical force.” Id. It is true that “offenses relating to the
regulation of business practices” do not qualify as predicate
offenses under § 922(g)(1). 18 U.S.C. § 921(a)(20)(A); see also
Dillard, 214 F.3d at 90. Still, many nonviolent crimes do not
involve the regulation of business practices and thus constitute
predicate felonies under § 922(g)(1). See Lane, 252 F.3d at 906
(“Most felonies after all are not violent . . . .”); Johnson, 399
F.3d at 1300 (“[N]ot all felons are potentially more violent than
non-felons.”).
        Third, even assuming that most felons are “dangerous
when armed” and that felon in possession of a firearm is “[a]
crime that increases the likelihood of a crime of violence,” that

                                 6
does not mean that possession of a firearm is itself a crime of
violence. Lane, 252 F.3d at 907. As the Seventh Circuit has
explained, felons who possess firearms “may end up committing
another, and violent, offense, such as robbing a bank at gunpoint,
but that doesn’t make the possession offense violent.” Id.
       Fourth, even if a § 922(g)(1) offense is not considered a
crime of violence, the government can detain defendants in §
922(g)(1) cases in a range of circumstances. Singleton, 182 F.3d
at 15. Specifically, the government is entitled to a detention
hearing if a § 922(g)(1) defendant has two prior predicate felony
convictions, or is likely to flee or obstruct justice. Id. at 15
(citing 18 U.S.C. §§ 3142(f)(1)(D), (f)(2)(A) & (f)(2)(B)); see
also Johnson, 399 F.3d at 1300 (“[I]nterpreting § 3142(f)(1) to
exclude felon-in-possession would not deprive the government
of an opportunity to detain armed felons when circumstances
warrant detention.”) (citing Singleton, 182 F.3d at 15).
       Finally, the Sentencing Commission has interpreted
U.S.S.G. 4b1.2(a), a provision of the Sentencing Guidelines
governing “crime[s] of violence,” to exclude § 922(g)(1)
offenses. U.S.S.G. 4b1.2 appl. note 1 (“‘Crime of violence’ does
not include the offense of unlawful possession of a firearm by a
felon, unless the possession was of a firearm described in 26
U.S.C. § 5845(a) [(listing particularly lethal types of
firearms)].”); Singleton, 182 F.3d at 15-16. Section 3142(g) and
U.S.S.G. 4b1.2(a) are analogous in that both require a Court to
“parse violent from non-violent defendants.” Singleton, 182
F.3d at 16. While the Sentencing Commission’s Application
Notes do not control judicial interpretation of § 3142(g), they do
offer persuasive authority. Id. at 16. As we have stated,
“interpretation of ‘crime of violence’ under the Sentencing
Guidelines should bear upon the meaning of the term in other
settings as well.” Royce v. Hahn, 151 F.3d at 124.
       Only one Court has held that a § 922(g)(1) offense is a
crime of violence under § 3156(a)(4)(B). In Dillard, a divided
panel of the Second Circuit rejected the D.C. Circuit’s reasoning
in Singleton. See 214 F.3d at 89. However, we find Dillard’s
reasoning unpersuasive, and we therefore join the Seventh and
Eleventh Circuits, both of which followed Singleton after
considering and rejecting Dillard’s holding. Lane, 252 F.3d at
907; Johnson, 399 F.3d at 1299-1300.


                                7
        Dillard relies largely on legislative history to conclude
that felon in possession is “a felony and that, by its nature,
involves a substantial risk” of violence under 18 U.S.C. §
3156(a)(4)(B). Dillard, 214 F.3d 94-96. We consider this foray
into legislative history unnecessary, because the plain meaning
of the statute is clear. See United States v. Gonzales, 520 U.S. 1,
6 (1997) (“Given the straightforward statutory command, there
is no reason to resort to legislative history.”) (citing Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)).
        “Substantial” is defined as “having a solid or firm
foundation: soundly based: carrying weight.” Webster’s Third
New International Dictionary 2280 (3d ed. 1966). As noted
above, a felon may put a gun to any number of nonviolent uses,
or a felon may own a gun but have no intention of using it at all.
Thus, the risk that possession of a firearm by a felon will use a
firearm violently is not “soundly based.” On the contrary, we
would describe the conclusion that the firearm will be used
violently as speculative or hasty, which we consider to be
antonyms of “soundly based.” We agree with the Second Circuit
that § 3156(a)(4)(B) “speaks to offenses that give rise to a
possibility, rather than a certainty, that force may be used” and
that “[f]orce need not be . . . inevitable.” Dillard, 214 F.3d at
92. But the possibility of force must be “soundly based,” not
speculative.
        At all events, the legislative history unearthed by the
Second Circuit is unilluminating. The Bail Reform Act of 1984
gave District Courts the authority to detain dangerous
defendants; unsurprisingly, its legislative history reveals that
Congress was concerned with the dangers some defendants
posed to community safety. Dillard, 214 F.3d at 95 (citing
S.Rep. No. 98-225, at 5 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3188 (report of the Senate Judiciary Committee on the
Bail Reform Act of 1984)). But this general concern is hardly
specific enough to permit the inference that Congress viewed
felon in possession of a firearm as a crime of violence.
        Dillard also cites a statement by the sponsor of the
predecessor to § 922(g)(1), but as the Supreme Court has stated,
“ordinarily even the contemporaneous remarks of a single
legislator who sponsors a bill are not controlling in analyzing
legislative history.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 118 (1980). We also question the

                                 8
Second Circuit’s view that the legislative history of § 922(g)(1)
sheds light on the meaning of “crime of violence” under 18
U.S.C. § 3156(a)(4). That, needless to say, is a separate statute
with a separate legislative history.
        Even if we were persuaded by the Second Circuit’s
reasoning, the opinion of this Court in Royce v. Hahn, 151 F.3d
116 (3d Cir. 1998), would prevent us from following it. In
Royce, we held that § 922(g) is not a crime of violence under 18
U.S.C. § 4042(b), a statute that requires the Bureau of Prisons to
notify local law enforcement authorities before releasing certain
inmates. Id. at 117. For purposes of § 4042(b)(3)(B), “a crime
of violence” is defined by 18 U.S.C. § 924(c)(3), which is
virtually identical to § 3156(a)(4), the relevant provision in this
case.2 In fact, the operative language in § 924(c)(3)(B) is the
verbatim equivalent of § 3156(a)(4)(B). Both provisions define
“crime of violence” as an offense “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.”
18 U.S.C. §§ 924(c)(3)(B) and 3156(a)(4)(B). In Royce, we
surveyed other statutes that use the term “crime of violence,”
and we emphasized that “there is much to be said for attributing


       2
           Section 924(c)(3) provides:

       For purposes of this subsection the term “crime of
       violence” means an offense that is a felony and--

               (A) has as an element the use,
               attempted use, or threatened use of
               physical force against the person or
               property of another, or

               (B) 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.

18 U.S.C. § 924(c)(3).


                                 9
the same meaning to the same or related words.” Id. at 124
(citation omitted). In keeping with this sensible observation, we
hold, consistent with Royce, that § 922(g)(1) does not describe a
“crime of violence” under § 3156(a)(4).
        Thus, we join the District of Columbia, Seventh, and
Eleventh Circuits, and we reject the view of the Second Circuit.
Felon in possession does not “involve[] a substantial risk” of
violence, 18 U.S.C. § 3156(a)(4)(B), and there is not “a direct
relationship between the offense and a risk of violence,”
Singleton, 182 F.3d at 14. This conclusion both reflects the
majority view of our sister Circuits and flows naturally from our
own jurisprudence. In short, we are unwilling to infer that a
felon will use a gun violently merely because he owns it.
        While we vacate the order of the District Court, we do not
hold that Bowers must be released pending trial. Although we
hold that Bowers is not charged with a crime of violence, §
3142(f) lists other grounds for holding a detention hearing,
including a risk that the defendant will flee. Likewise, § 3142(g)
lists a number of other factors that a District Court must consider
in deciding whether to release a defendant. Thus, we remand the
case for the District Court to determine, in spite of our holding
that Bowers is not charged with a crime of violence, whether the
detention hearing was required under § 3142(f), and whether
detention is required under the § 3142(g) factors.




                                10
