                                                         F I L E D
                                                   United States Court of Appeals
                                                           Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                           SEP 2 2003
                      FOR THE TENTH CIRCUIT
                                                      PATRICK FISHER
                                                                Clerk


UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

v.                                           No. 03-1301
                                       (D.C. No. 00-CR-481-D)
ROBERT VERBICKAS,                             (D. Colo.)

         Defendant-Appellant.


UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

v.                                           No. 03-1310
                                       (D.C. No. 00-CR-481-D)
ROD SCHULTZ,                                  (D. Colo.)

         Defendant-Appellant.


UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

v.                                           No. 03-1314
                                       (D.C. No. 00-CR-481-D)
MIKE LAVALLEE,                                (D. Colo.)

         Defendant-Appellant.
                           ORDER AND JUDGMENT            *




Before BRISCOE , MURPHY , and McCONNELL , Circuit Judges.



      Defendants Robert Verbickas, Rod Schultz, and Mike La Vallee appeal

from the district court’s order denying them release pending sentencing. They

contend that the district court erroneously concluded that their convictions fell

within the Mandatory Detention Act, 18 U.S.C. § 3143(a)(2), and that they failed

to show exceptional reasons why they nevertheless should not be detained under

18 U.S.C. § 3145(c). We affirm.

      Defendants were three of seven federal correctional officers charged in

a superseding indictment with ten counts of violating the civil rights of inmates

incarcerated in the United States Penitentiary at Florence, Colorado. These three

defendants were each convicted by a jury of one count charging a substantive

offense under 18 U.S.C. § 242, and defendants Schultz and La Vallee were also

convicted of one count charging conspiracy in violation of 18 U.S.C. § 241.

Defendants were found “not guilty” on all other counts.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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      The district court determined that § 242 is a “crime of violence” within the

meaning of 18 U.S.C. § 3156(a)(4)(B), triggering for all three defendants the

mandatory detention provision in 18 U.S.C. § 3143(a)(2), read in conjunction with

18 U.S.C. § 3142(f)(1). The court further determined that defendants did not

show that they were substantially likely to succeed on a motion for acquittal or for

a new trial to meet the exception to detention in § 3143(a)(2)(A)(i), and did not

show exceptional reasons why they nevertheless should not be detained to meet

the exception in § 3145(c).

      On appeal, defendants argue that a charge under § 242 does not, by its

nature, pose a substantial risk of physical force and, so, is not a “crime of

violence” as defined in § 3156(a)(4)(B). In addition, they assert that they showed

the following exceptional reasons why they should not be detained under

§ 3145(c): (1) the jury returned sixteen “not guilty” verdicts on counts charging

excessive force, including some “not guilty” verdicts as to these defendants;

(2) the Mandatory Detention Act does not define the critical terms “crime of

violence” and “exceptional reasons”; (3) there was disparate treatment between

these defendants, who were ordered detained, and other defendants who pleaded

guilty to charges under § 242 and who were not detained pending sentencing;

(4) the trial court’s application of the Mandatory Detention Act to these

defendants was unconstitutional; (5) the jury returned a statement that the climate


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of abuse at Florence should be taken into account when defendants are sentenced;

and (6) defendants had no prior record and showed exemplary conduct since they

were charged.

       The question whether a charge under § 242 constitutes a “crime of

violence” under § 3156(a)(4)(B) is a legal question that we review de novo.        See

United States v. Vigil , 334 F.3d 1215, 1218 (10th Cir. 2003) (considering similar

definition of “crime of violence” under USSG § 4B1.2). We also review de novo

the determination that defendants showed no exceptional reasons why they

nevertheless should not be detained under § 3145(c).     United States v. Kinslow ,

105 F.3d 555, 557 (10th Cir. 1997).

       Under § 3156(a)(4)(B), an offense is a “crime of violence” if it is a felony

and, “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.” When we determine the nature of the offense under § 242 charged

against these defendants, we consider only the statutory elements of the offense

and not the evidence adduced at trial.   See United States v. Zamora , 222 F.3d 756,

764 (10th Cir. 2000) (considering definition of “crime of violence” under USSG

§ 4B1.2); United States v. Reyes-Castro , 13 F.3d 377, 379 (10th Cir. 1993)

(considering definition of “crime of violence” under 18 U.S.C. § 16 identical to

that under § 3156(a)(4)). If there is any ambiguity, we may “look beyond the


                                           -4-
statute to certain records . . ., such as the charging documents, the judgment, any

plea thereto, and findings by the court.”   Zamora , 222 F.3d at 764.

       In light of the Supreme Court’s decision in      Apprendi v. New Jersey ,

530 U.S. 466 (2000), the three clauses of § 242 define separate offenses with

different elements.    United States v. Williams , No. 02-60519, 2003 WL

21940787, at *5 (5th Cir. Aug. 14, 2003). Defendants concede that they were

charged with violating the offense defined by the second clause, that is, with

violating inmates’ constitutional rights in a manner that resulted in bodily injury.

Aplt. Verbickas’ Br. at 6. We have no trouble concluding that the offense defined

by § 242 that includes the element of bodily injury involves a substantial risk that

physical force will be used in the commission of the offense, and is therefore

a “crime of violence” under § 3156(a)(4)(B).         Accord Williams , 2003 WL

21940787, at *4 (considering identical definition for “crime of violence” under

18 U.S.C. § 924(c)(3)(B)). Defendants’ argument that not all scenarios that result

in bodily injury include a risk of physical force violates the requirement that we

examine the nature of the offense in the abstract, and not the theoretical

possibilities of individual cases.   See Zamora , 222 F.3d at 764-65. We hold that

the district court did not err in concluding that defendants’ convictions under

§ 242 triggered the mandatory detention provision in § 3143(a)(2), read in

conjunction with § 3142(f)(1).


                                            -5-
      We also agree with the district court that defendants failed to show

exceptional reasons that they nevertheless should not be detained under § 3145(c).

Included among defendants’ arguments to support exceptional reasons which

would justify their release is the argument that other defendants convicted of

§ 242 violations were released. This disparate treatment argument does not

establish an exceptional reason warranting defendants’ release. Whether the court

erred in the release of other defendants does not provide a basis for release of

these defendants, or result in our concluding that the detention of the defendants

is unconstitutional.

      The judgment of the district court is AFFIRMED.



                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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