18‐3076‐cr
United States v. Watkins




                                     In the
                  United States Court of Appeals
                            for the Second Circuit


                                AUGUST TERM 2018

                                  No. 18‐3076‐cr

                           UNITED STATES OF AMERICA,
                                    Appellee,

                                        v.

                               LARRY WATKINS, SR.,
                               Defendant‐Appellant.



                  On Appeal from the United States District Court
                      for the Western District of New York



                           SUBMITTED: JANUARY 29, 2019
                            DECIDED: OCTOBER 3, 2019
      Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.


      Defendant‐Appellant Larry Watkins, Sr. (“Watkins”) was
charged in a one‐count indictment with possession of ammunition as
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On July 19, 2018, Magistrate Judge Michael J. Roemer entered a
detention order, which the United States District Court for the Western
District of New York (Lawrence J. Vilardo, Judge) affirmed in an
October 9 Decision and Order (“October 9 Order”). On October 18,
Watkins appealed the District Court’s October 9 Order, and on
December 26, he filed a motion for bail before us. On January 30, 2019,
we entered an order denying Watkins’s bail motion and affirming the
District Court’s October 9 Order. This opinion sets forth our reasoning.

      The central issue on appeal is whether the Government was
entitled to a detention hearing under 18 U.S.C. §§ 3142(f)(1)(A) or
3142(f)(1)(E) of the Bail Reform Act. We conclude that it was. In so
doing, we reject Watkins’s vagueness challenge to the residual clause
in the Bail Reform Act’s definition of “crime of violence.” We further
conclude that possession of ammunition by a convicted felon is
categorically a crime of violence under the residual clause, and
therefore satisfies § 3142(f)(1)(A). Finally, pursuant to a conduct‐
specific inquiry, we conclude that Watkins’s offense also involved the
possession or use of a firearm under § 3142(f)(1)(E) because Watkins
discharged the ammunition from a firearm. Accordingly, on January
30, 2019 we AFFIRMED the District Court’s October 9 Order and
DENIED Watkins’s motion for bail.




                                   2
                         Monica J. Richards, Assistant United States
                         Attorney, for James P. Kennedy, Jr., United
                         States Attorney for the Western District of
                         New York, Buffalo, NY, for Appellee.

                         Alan S. Hoffman, Buffalo, NY, for Defendant‐
                         Appellant.




JOSÉ A. CABRANES, Circuit Judge:

      Defendant‐Appellant Larry Watkins, Sr. (“Watkins”) was
charged in a one‐count indictment with possession of ammunition as
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On July 19, 2018, Magistrate Judge Michael J. Roemer entered a
detention order, which the United States District Court for the Western
District of New York (Lawrence J. Vilardo, Judge) affirmed in an
October 9 Decision and Order (“October 9 Order”). On October 18,
Watkins appealed the District Court’s October 9 Order, and on
December 26, Watkins filed a motion for bail before us. On January 30,
2019, we entered an order denying Watkins’s bail motion and
affirming the District Court’s October 9 Order. This opinion sets forth
our reasoning.
      The central issue on appeal is whether the Government was
entitled to a detention hearing under 18 U.S.C. §§ 3142(f)(1)(A) and




                                   3
3142(f)(1)(E) of the Bail Reform Act. We conclude that it was. In so
doing, we reject Watkins’s vagueness challenge to the residual clause
in the Bail Reform Act’s definition of “crime of violence.” We further
conclude that possession of ammunition by a convicted felon is
categorically a crime of violence under the residual clause, and
therefore satisfies § 3142(f)(1)(A). Finally, pursuant to a conduct‐
specific inquiry, we conclude that Watkins’s offense also involved the
possession or use of a firearm under § 3142(f)(1)(E) because Watkins
discharged the ammunition from a firearm. Accordingly, we
AFFIRMED the District Court’s October 9 Order and DENIED
Watkins’s motion for bail.

                             I. BACKGROUND1

          On June 16, 2018, Watkins fired nine bullets at a fleeing vehicle
on a residential street in broad daylight. Watkins had only recently
been discharged from federal supervised release after serving a ten‐
year sentence for a drug conspiracy conviction. Watkins claims to
have been standing on his front lawn when he observed the vehicle’s
occupants target his son in a drive‐by shooting. To protect his son,
Watkins immediately chased the vehicle into the street and began
firing.

          Watkins fled the scene after the shooting and deposited the
illegally possessed handgun at a relative’s home. He later returned


         These facts are drawn from the record before the District Court, including
          1

transcripts of hearings before the Magistrate Judge and the District Judge. They are
not disputed for these purposes.




                                         4
and spoke with investigators from the Buffalo Police Department.
Watkins did not immediately admit his involvement in the shooting.

      Days later, Watkins was arrested and interviewed by agents
from the Federal Bureau of Investigation (“FBI”). Determined to
recover the missing firearm, the FBI agents promised Watkins that
they would not seek to have him charged with possession of the
firearm if he revealed its location. Watkins eventually led the FBI
agents to his relative’s home, where they recovered a fully‐loaded,
semi‐automatic pistol.

      On June 21, 2018, Watkins was charged in a one‐count
indictment for possession of ammunition as a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At his arraignment,
the Government moved to detain Watkins without bail pending trial.

      During a July 2 detention hearing, the Magistrate Judge made
the unusual decision to order briefing from both parties on the
threshold question of whether the Government was entitled to a
detention hearing under § 3142(f)(1). Pursuant to § 3142(f)(1), a
judicial officer must hold a detention hearing upon motion of the
Government “in a case that involves”:

            (A) a crime of violence . . . ;

            (B) an offense for which the maximum
            sentence is life imprisonment or death;

            (C) an offense for which a maximum term of
            imprisonment of ten years or more is




                                    5
          prescribed in the Controlled Substances Act
          ...;

          (D) any felony if such person has been
          convicted of two or more offenses described
          in subparagraphs (A) through (C) of this
          paragraph . . . ; or

          (E) any felony that is not otherwise a crime
          of violence that involves a minor victim or
          that involves the possession or use of a
          firearm or destructive device . . . .2

The term “crime of violence” is defined, in relevant part, as:

          (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; [or]

          (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.3


2   18 U.S.C. § 3142(f)(1)(A)–(E).
3   Id. § 3156(a)(4)(A)–(B).




                                     6
        The first clause (“A”) is commonly referred to as the
“elements” clause, while the second (“B”) is referred to as the
“residual” clause.4

        The Government proffered two theories in support of its right
to a detention hearing under § 3142(f)(1). First, despite effectively
conceding that possession of ammunition is not itself a “crime of
violence,” the Government emphasized that Watkins’s charged
offense—felon‐in‐possession of ammunition—stemmed from a
shooting, which is indisputably a “crime of violence.” Therefore, the
government argued, Watkins’s charged offense bears a significant
factual nexus to a crime of violence and is thus a case that “involves”
a “crime of violence” under § 3142(f)(1)(A). In other words, according
to the Government, the prefatory language of § 3142(f)(1)—which
provides for a detention hearing “in a case that involves” certain types
of offense—means that the charged offense need not itself be a
“crime of violence,” so long as it bears a significant factual nexus to a
crime of violence. Second, the Government argued that Watkins’s




        4See United States v. Davis, 139 S. Ct. 2319, 2324 (2019). These clauses have
sometimes been referred to by our Court as the “force” clause and “risk‐of‐force”
clause. See, e.g., United States v. Hill, 890 F.3d 51, 54 (2d Cir. 2018). For purposes of
this opinion, we adhere to the Supreme Court’s naming conventions. Only the
“residual clause” is relevant to this case because possession of ammunition as a
convicted felon does not have as an element the use, attempted use, or threatened
use of physical force against the person or property of another.




                                           7
charged offense qualifies under § 3142(f)(1)(E) because the
underlying conduct “involve[d] the possession or use of a firearm.”5

       Watkins, in turn, disagreed with the Government’s
interpretation of the phrase “in a case that involves.” Rather, he
maintained that § 3142(f)(1)(A) requires that the charged offense itself
constitute a crime of violence. Similarly, he argued that § 3142(f)(1)(E)
requires that the charged offense have, as an element, the use or
possession of a firearm. Finally, relying on the Supreme Court’s
decisions in Johnson v. United States6 and Sessions v. Dimaya,7 Watkins
argued that the residual clause in the Bail Reform Act’s definition of
“crime of violence” is unconstitutionally vague.8

       At the continued hearing on July 16, 2018, Magistrate Judge
Roemer found that the Government was entitled to a detention
hearing under both § 3142(f)(1)(A) and § 3142(f)(1)(E), and that it had
established by clear and convincing evidence that no condition or


       5   18 U.S.C. § 3142(f)(1)(E).
       6 135 S. Ct. 2551 (2015) (holding the residual clause in the definition of
“violent felony” in the Armed Career Criminal Act (“ACCA”) unconstitutionally
vague).
       7138 S. Ct. 1204 (2018) (holding the residual clause of the federal criminal
code’s definition of “crime of violence,” as incorporated into the Immigration and
Nationality Act’s definition of “aggravated felony,” unconstitutionally vague).
       8  At the time Watkins filed his brief, the Supreme Court had yet to decide
United States v. Davis, 139 S. Ct. 2319 (2019), which addresses the constitutionality
of the residual clause in 18 U.S.C. § 924(c)(3)(B).




                                         8
combination of conditions could reasonably assure the safety of any
other person and the community were Watkins to be released.
Magistrate Judge Roemer thereupon immediately remanded Watkins
to the custody of the United States Marshals Service and entered a
detention order on July 19, 2018.

        On August 28, 2018, Watkins filed a motion for
reconsideration of Magistrate Judge Roemer’s July 19 detention
order, which the District Court construed as a motion for revocation
of the July 19 detention order.9 In the October 9 Order, Judge Vilardo
upheld the July 19 detention order for three reasons. First, relying on
our decision in United States v. Dillard,10 he concluded that possession
of ammunition is categorically a “crime of violence” under the
§ 3156(a)(4)(B) residual clause, as incorporated in § 3142(f)(1)(A).
Second, Judge Vilardo appeared to agree with the Government that
Watkins’s case “involved” a crime of violence under § 3142(f)(1)(A)
because the charged offense bore a significant factual nexus to a
crime of violence. Third, he concluded that Watkins’s charged
offense “involve[d] the possession or use of a firearm” under
§ 3142(f)(1)(E) because “the ammunition alleged to have been
possessed was also alleged to have been actually fired from a


       9  See 18 U.S.C. § 3145(b) (“If a person is ordered detained by a magistrate
judge, . . . the person may file, with the court having original jurisdiction over the
offense, a motion for revocation or amendment of the order.”).
       10214 F.3d 88 (2d Cir. 2000) (concluding that the offense of possession of a
firearm as a convicted felon is a “crime of violence” under § 3142(f)(1)(A)).




                                          9
firearm.”11 Finally, Judge Vilardo rejected Watkins’s argument that
the residual clause in the Bail Reform Act’s definition of “crime of
violence” is unconstitutionally vague.

        On October 18, 2018, Watkins appealed the District Court’s
October 9 Order. He subsequently filed a motion for bail on
December 26, 2018. On appeal, Watkins maintains that the
Government was not entitled to a detention hearing under either §
3142(f)(1)(A) or § 3142(f)(1)(E). He further contends that the Bail
Reform Act’s residual clause is unconstitutionally vague.12

       On January 30, 2019, we entered an order denying Watkins’s
motion for bail, “with an opinion forthcoming.”13 This opinion sets
forth the reasoning for our conclusion that the Government was
entitled to a detention hearing under both § 3142(f)(1)(A) and
§ 3142(f)(1)(E).

                                   II. DISCUSSION

       A. Standards of Review

       Generally, “we apply deferential review to a district court’s
order of detention and will not reverse except for clear error, i.e.,


       11   JA 189.
       12 Since appealing the District Court’s October 9 Order, Watkins has pleaded
guilty to being a convicted felon in possession of ammunition.
       13   2d Cir. Dkt. No. 38.




                                         10
unless on the entire evidence we are left with the definite and firm
conviction that a mistake has been committed.”14 We review de novo
questions of law.15

       B. The Bail Reform Act

       The Bail Reform Act allows federal courts to detain an arrestee
pending trial if, during an adversary hearing, the Government
demonstrates by clear and convincing evidence that no release
conditions “will reasonably assure . . . the safety of any other person
and the community.”16 First, however, the Government must
establish by a preponderance of the evidence that it is entitled to a
detention hearing.17

       Pursuant to § 3142(f), the Government is entitled to a pretrial
detention hearing if: (1) the charged offense falls within any of the
five subcategories set forth in § 3142(f)(1)(A)–(E); (2) the defendant
poses a serious risk of flight;18 or (3) there is a serious risk that the
defendant will attempt to obstruct justice, or threaten, injure, or




        United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation
       14

marks omitted).
       15   United States v. Abuhamra, 389 F.3d 309, 317 (2d Cir. 2004).
       16   18 U.S.C. § 3142(e)(1), (f)(2)(B).
       17   See United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).
       18   18 U.S.C. § 3142(f)(2)(A).




                                             11
intimidate a witness or juror.19 Section 3142(f)(1) thus performs a
gate‐keeping function by “limit[ing] the circumstances under which
[pretrial] detention may be sought to the most serious of crimes.”20

      Once the Government has demonstrated to the District Court
that it is entitled to seek pretrial detention under § 3142(f), a judicial
officer must promptly hold a hearing. At this hearing, the parties
may “present information by proffer or otherwise,” since the “rules
concerning admissibility of evidence in criminal trials do not apply to
the presentation and consideration of information at the hearing.”21
The defendant has the right to be represented by counsel, and can
testify on his own behalf, present witnesses, and cross‐examine
witnesses who appear at the hearing.22

      In deciding whether to detain an arrestee, the judicial officer
“is not given unbridled discretion.”23 Rather, Congress has specified
certain factors the judicial officer must consider, including the nature
and circumstances of the charges; the substantiality of the
Government’s evidence; the arrestee’s background; and the nature
and seriousness of the danger to any person or the community that


      19   Id. § 3142(f)(2)(B).
      20   United States v. Salerno, 481 U.S. 739, 747 (1987).
      21   18 U.S.C. § 3142(f)(2).
      22   Id.
      23   Salerno, 481 U.S. at 742.




                                            12
the arrestee’s release would pose.24 Ultimately, it is the Government’s
burden to prove to the judicial officer by clear and convincing
evidence that “no condition or combination of conditions will
reasonably assure the safety of any other person and the
community.”25

       Here, the Government did not allege that Watkins presents a
serious risk of flight or obstruction. Accordingly, in order to be
entitled to a detention hearing, the Government had to establish that
Watkins’s offense falls within one of the five subsections set forth in
§ 3142(f)(1). Both parties agree that only subsections (A) and (E) are
potentially relevant to Watkins’s circumstances. Those subsections
entitle the Government to a detention hearing in a case that involves
“a crime of violence” (as defined in § 3156(a)(4)) or “any felony that .
. . involves the possession or use of a firearm,”26 respectively.

      C. Void‐for‐Vagueness

      Before we consider whether possession of ammunition
constitutes a “crime of violence” under § 3142(f)(1)(A), we must
address the threshold issue of whether its residual clause is




      24   18 U.S.C. § 3142(g).
      25   Id. § 3142(f)
      26   Id. § 3142(f)(1)(A), (E).




                                       13
unconstitutionally vague under the Fifth Amendment’s Due Process
Clause.27

       The Supreme Court has instructed that “the degree of
vagueness that the Constitution allows depends in part on the nature
of the enactment.”28 Generally, we are to express “greater tolerance”
for vagueness in statutes that impose civil, rather than criminal,
penalties “because the consequences of imprecision are qualitatively
less severe.”29 To date, the Supreme Court, in a trilogy of cases,30 has


        The Fifth Amendment provides, in relevant part: “No person shall be . . .
       27

deprived of life, liberty, or property, without due process of law . . . .” U.S. CONST.
amend. V.

        Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (internal brackets and quotation
       28

marks omitted).
       29   Id. (internal quotation marks omitted).
       30 See Johnson v. United States, 135 S. Ct. 2551 (2015) (holding unconstitutional
the residual clause in the Armed Career Criminal Act, which imposes a more severe
punishment on a defendant convicted of being a felon‐in‐possession of a firearm if
he has three or more prior convictions for a “violent felony”); Sessions v. Dimaya,
138 S. Ct. 1204 (2018) (invalidating the residual clause cross‐referenced in the
Immigration and Nationality Act (“INA”), which renders deportable any alien
convicted of an “aggravated felony” after admission and further renders such
individuals ineligible for cancellation of removal, a form of discretionary relief
allowing some deportable aliens to remain in the country); United States v. Davis,
139 S. Ct. 2319 (2019) (invalidating the residual clause in § 924(c), which provides
mandatory minimum sentences for using, carrying, or possessing a firearm in
connection with any federal “crime of violence”). We note that even though the
INA does not impose criminal penalties, the plurality opinion in Dimaya subjected
the INA’s residual clause to the “most exacting vagueness standard” because it
likened the consequence of near‐certain deportation to carceral punishment. See
Dimaya, 138 S. Ct. at 1213 (observing that deportation is “a particularly severe




                                           14
invalidated residual clauses appearing in statutes that either: (1)
establish new criminal offenses; or (2) impose severe or enhanced
penalties.

       By contrast, in Beckles v. United States,31 the Supreme Court held
that the now‐defunct32 residual clause in the “career offender”
enhancement of the United States Sentencing Guidelines33
(“Guidelines”) was immune from a void‐for‐vagueness challenge.
Recognizing that it had by then (2017) invalidated only two kinds of
criminal laws as “void for vagueness”—“laws that define criminal
offenses and laws that fix the permissible sentences for criminal


penalty . . . which may be of greater concern to a convicted alien than any potential
jail sentence” and observing that “as federal immigration law increasingly hinged
deportation orders on prior convictions, removal proceedings became ever more
intimately related to the criminal process” (internal quotation marks omitted)).
        31   137 S. Ct. 886 (2017).
        32Section 4B1.2(a)(2) of the Guidelines was amended in November 2016 to
remove the residual clause. U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) §
4B1.2(a)(2) (Nov. 2016).
        33 See U.S.S.G. § 4B1.1(a) (Nov. 2006) (“A defendant is a career offender if (1)
the defendant was at least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.”); id. § 4B1.2(a)(2) (defining the term “crime of violence” as “any
offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that . . . 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”).




                                           15
offenses”34—the Supreme Court reasoned that the advisory
Guidelines fall within neither category. In other words, the
Guidelines do not fix the permissible range of sentences or establish
new criminal offenses; rather, they “merely guide the exercise of a
court’s discretion in choosing an appropriate sentence within the
statutory range.”35 As such, the Guidelines do not implicate the twin
concerns underlying the vagueness doctrine—“providing notice and
preventing arbitrary enforcement.”36 Indeed, no amount of notice can
change the fact that the Guidelines are merely advisory, and “the
sentencing court retains discretion to impose [an] enhanced
sentence” even if a defendant conforms his behavior to avoid the
career offender enhancement.37 Accordingly, the Supreme Court
concluded that the Guidelines are not amenable to a vagueness
challenge.38

      Like the Guidelines, the Bail Reform Act does not define
criminal offenses or impose mandatory penalties. Rather, as
explained above, § 3142(f)(1) merely performs a gate‐keeping
function by narrowing the types of offenses that render an arrestee
eligible for a detention hearing. A determination that an arrestee’s


      34   Beckles, 137 S. Ct. at 892 (emphasis in original).
      35   Id.
      36   Id. at 894.
      37   Id.
      38   Id.




                                           16
offense constitutes a “crime of violence” under § 3142(f)(1) is a
necessary, but not sufficient, condition to provide a basis for pretrial
detention.39 Moreover, even if the arrestee’s offense qualifies under
§ 3142(f)(1), a judicial officer must still conduct a “full‐blown
adversary hearing,”40 where the arrestee is represented by counsel
and has the right to present and cross‐examine witnesses. It is only
after this hearing, and only if the Government has established by
clear and convincing evidence that no condition or combination of
conditions can reasonably assure the safety of any other person or the
community, that a judicial officer can enter a detention order.41 In
sum, it is never a foregone conclusion that an arrestee subject to a
detention hearing under § 3142(f)(1) will be detained before trial.

        Additionally, like the Guidelines, § 3142(f)(1) of the Bail
Reform Act does not implicate the dual concerns underlying the
void‐for‐vagueness doctrine: fair notice and preventing arbitrary
enforcement. “[T]he purpose of the fair notice requirement is to
enable the ordinary citizen to conform his or her conduct to the
law.”42 In other words, it would be unfair to punish someone if he
could not know that his conduct was proscribed or the possible range

        39S. Rep. No. 98‐225, at21 (1983) (“[T]he fact that the defendant is charged
with an offense described in subsection (f)(1) . . . is not, in itself, sufficient to support
a detention order.”).
        40   Salerno, 481 U.S. at 750.
        41   18 U.S.C. § 3142(f)(2) and (e).
        42   City of Chicago v. Morales, 527 U.S. 41, 58 (1999).




                                               17
of punishment to which he would be exposed. Section 3142(f)(1) does
not, however, proscribe conduct or set punishment. Indeed, as the
Supreme Court explained in United States v. Salerno,43 pretrial
detention does not constitute “punishment” at all.44 Rather, pretrial
detention is “regulatory in nature” because it serves a “pressing
societal problem” of preventing danger to the community.45 Thus, the
“distinct character”46 of non‐punitive pretrial detention does not
trigger the same constitutional concerns as the indisputably punitive
post‐conviction sentence. Moreover, as a practical matter, we cannot
imagine that an individual conforms his conduct in order to avoid
pretrial detention rather than, say, post‐conviction incarceration.

      Finally, the Bail Reform Act does not invite arbitrary
enforcement within the meaning of the Supreme Court’s case law
because it does not leave the judicial officer “free to decide, without
any legally fixed standards, what is prohibited and what is not in
each particular case,” nor does it permit a judicial officer “to
prescribe the sentences or sentencing range available.”47 The Act




      43   481 U.S. 739 (1987).
      44   Id. at 746–48.
      45   Id. at 747.
      46  Mont v. United States, 139 S. Ct. 1826, 1842 (2019) (Sotomayor, J.,
dissenting).
      47   Beckles, 137 S. Ct. at 894–95 (internal quotation marks omitted).




                                          18
merely empowers the court to hold a hearing that is itself guided by
the statutory requirements established in § 3142(g).

       In sum, because § 3142(f)(1) does not define criminal offenses,
fix penalties, or implicate the dual concerns underlying the void‐for‐
vagueness doctrine, it is not amenable to a due process challenge and
is therefore not unconstitutionally vague.48

       D. Section 3142(f)(1)(A) (Bail Reform Act)

       Having concluded that the residual clause of § 3142(f)(1)(A) of
the Bail Reform Act is not unconstitutionally vague, we must now
address how to interpret this residual clause.

       There are generally two approaches for analyzing whether an
individual’s conduct falls within the ambit of a statute’s residual
clause. The first approach, the “categorical approach,” has generally
been used in prior‐conviction cases, where the statute at issue



       48 Although the Bail Reform Act’s residual clause is not subject to a
vagueness challenge, it is worth noting that Watkins’s conduct, taken as a whole,
would certainly have put him on notice that he was at risk of submitting himself to
a detention hearing. See Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Objections
to vagueness under the Due Process Clause rest on the lack of notice, and hence
may be overcome in any specific case where reasonable persons would know that
their conduct is at risk.”). Watkins cannot seriously dispute that shooting
ammunition from a firearm at a moving vehicle, on a residential street in broad
daylight, involves a substantial risk that physical force against the person or
property of another may be used.




                                         19
imposes certain penalties based on a defendant’s prior conviction.49
Under the categorical approach, courts must decide whether, in the
“ordinary case,” the conduct encompassed by the elements of the
offense presents a substantial risk that physical force against the
person or property of another may be used.50 By focusing on the
riskiness of an “idealized ordinary case of the crime”51 and not the
actual conduct underlying a defendant’s prior conviction, the
categorical approach avoids any Sixth Amendment concerns about
having judges decide facts that increase the penalty for a crime
beyond the prescribed statutory maximum. 52



       49See Davis, 139 S. Ct. at 2343–44 (Kavanaugh, J., dissenting) (explaining the
application of the categorical approach in the prior‐conviction context).
       50 Dimaya, 138 S. Ct. at 1211 (quoting James v. United States, 550 U.S. 192, 208
(2007)); see also Johnson, 135 S. Ct. at 2557 (“Deciding whether the residual clause
covers a crime thus requires a court to picture the kind of conduct that the crime
involves in ‘the ordinary case,’ and to judge whether that abstraction presents a
serious potential risk of physical injury.” (quoting James, 550 U.S. at 208)).
       51   Johnson, 135 S. Ct. at 2557–58.
       52 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”); see also Dimaya, 138 S. Ct. at 1256 (Thomas, J., dissenting)
(“[T]he categorical approach was never really about the best reading of the text. . . .
[T]his Court adopted that approach to avoid a potential Sixth Amendment problem
with sentencing judges conducting minitrials to determine a defendant’s past
conduct.”); see also Davis, 139 S. Ct. at 2344 (Kavanaugh, J., dissenting) (“[I]n the
prior‐conviction cases, the Court insisted on the categorical approach to avoid Sixth
Amendment concerns.” (internal quotation marks omitted)); United States v. Barrett,
903 F.3d 166, 179 (2d Cir. 2018) (“[C]onstitutional avoidance informed the original




                                              20
       Of course, this Sixth Amendment concern applies only to
prior‐conviction cases, where penalties may be enhanced based on
factual findings regarding a past conviction. By contrast, in cases
where the residual clause appears in a statute criminalizing current‐
offense conduct, there is no such Sixth Amendment problem. These
“current‐offense” statutes operate entirely in the present and do not
require examination of past conduct underlying a prior conviction.
They include, for example, 18 U.S.C. § 924(c), which makes it a
separate crime to use or carry a firearm during and in relation to a
predicate crime of violence. If a defendant is charged under § 924(c)
and goes to trial, the jury can decide whether the defendant’s
predicate offense conduct involved a substantial risk that physical
force against the person or property of another would be used in the
course of committing the predicate offense.53 Thus, prior to Davis,
courts would apply this “case‐specific” or “conduct‐specific”
approach to current‐offense statutes to determine whether a
predicate offense qualifies as a crime of violence under the residual
clause.

       As a result of Davis, however, it appears that courts may no
longer avail themselves of this “conduct‐specific” approach in cases
such as this, where the statute focuses only on present offense


categorical‐approach mandate.”), abrogated in part by United States v. Davis, 139 S.
Ct. 2319 (2019).

        Alternatively, if a defendant pleads guilty, he can proffer in his plea
       53

agreement to the nature and attendant riskiness of the predicate offense.




                                        21
conduct, not prior conduct. This is so because Davis interpreted the
statutory text of the § 924(c)(3)(B) residual clause—which is
identically worded to the Bail Reform Act’s residual clause—as
precluding a case‐specific approach.54

       Accordingly, even though § 3142(f)(1) of the Bail Reform Act is
not a prior‐conviction statute, and even though it would make
abundant sense to allow courts to consider an arrestee’s actual
conduct during the charged crime for purposes of pretrial detention,
we are bound by the Supreme Court’s broad reasoning in Davis.
Accordingly, we must apply the categorical approach to determine
whether possession of ammunition by a convicted felon constitutes a
“crime of violence” for purposes of § 3142(f)(1)(A). We conclude that
it does.

       It has long been the law of our Circuit that possession of a
firearm is unequivocally a crime of violence for purposes of
§ 3142(f)(1)(A).55 Our Court’s reasoning in arriving at this conclusion

       54   See Davis, 139 S. Ct. at 2327–29.
       55 See United States v. Dillard, 214 F.3d 88, 97 (2d Cir. 2000) (“[T]he crime of
felon‐in‐possession under section 922(g)(1) falls within section 3156(a)(4)(B); ‘by its
nature,’ the offense of illegal gun possession by a person previously convicted of a
felony offense (not including business‐regulating offenses), ‘involves a substantial
risk that physical force . . . may be used in the course of committing the offense.’”).
We recognize that § 3142(f)(1) of the Bail Reform Act was amended in 2006 to
include subsection (E), which adds to the list of hearing‐eligible offenses “any
felony that is not otherwise a crime of violence that involves a minor victim or that
involves the possession or use of a firearm or destructive device . . . or any other
dangerous weapon . . . .” Adam Walsh Child Protection and Safety Act of 2006, Pub.
L. No. 109‐248, § 216, 120 Stat. 587, 617 (codified at 18 U.S.C. § 3142(f)(1)(E)). This




                                            22
applies with equal force to the crime of possession of ammunition by
a convicted felon.56 Like possession of a firearm, possession of
ammunition “gives rise to some risk” that the ammunition may be
used in an act of violence.57 Under the “categorical approach,” we are
required to “imagine how the idealized ordinary case of the crime
subsequently plays out.” Johnson, 135 S. Ct. at 2557–58. We believe
that in the “idealized ordinary case,” possession of ammunition
occurs in connection with eventual possession or use of a firearm. See
id. at 2579 (Alito, J., dissenting) (recognizing that the categorical
approach to the residual clause is not always “more forgiving to
defendants”). After all, there is little reason to possess ammunition
other than to eventually discharge it from a firearm. And where there
is a firearm, the risk that physical force will occur “in the course” of
the ammunition‐possession offense is substantial.58 We are aware of

provision was likely added to resolve the circuit split over whether possession of a
firearm constitutes a “crime of violence” under § 3142(f)(1)(A). Compare, e.g., Dillard,
214 F.3d 88 (concluding that possession of a firearm is a crime of violence) with
United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) (concluding that possession of
a firearm is not a crime of violence). This amendment does not affect our Court’s
decision in Dillard, since it was meant only to dispel uncertainty over Congress’s
intent to make felon‐in‐possession an eligible offense under § 3142(f)(1).
       56   Dillard, 214 F.3d at 92–93.
       57   Id. at 93 (emphasis in original).
       58  Dillard, 214 F.3d at 95 (“We think that among the convicted felons who
illegally possess guns, the number who do so by reason of the utility of guns in
threatening or causing violence is significant. We find it difficult to accept the
proposition that the risk of violent use of guns by convicted felons who possess
them illegally is not ‘substantial.’”).




                                            23
situations in which a convicted felon may possess only ammunition,
such as where a felon is engaged in the sale of ammunition or
obtained ammunition for a third party. But this type of possession is
not the ordinary case, and it therefore has no bearing on our analysis
under the categorical approach.59 Accordingly, Watkins’s possession‐
of‐ammunition offense is categorically a crime of violence under §
3142(f)(1)(A).

       The Government offers an alternative theory in support of its
right to a detention hearing under § 3142(f)(1)(A), which Judge
Vilardo appeared to endorse sub silentio.60 Recall that § 3142(f)(1)
concludes with the clause, “in a case that involves.”61 Relying on this
clause, the Government reasons that even if the charged offense is
not itself a categorical crime of violence, it may nevertheless
“involve” a crime of violence under § 3142(f)(1)(A) if the charged

       59The categorical approach does not permit us to consider whether there is
any conflict between the “idealized ordinary case” of a crime and a defendant’s
conduct in a particular case. But even if it did, there is no such conflict here. It is
undisputed that Watkins’s possession of ammunition led to its discharge from a
firearm.
       60 See JA 189 (citing United States v. Bagby, No. 15‐MJ‐2135, 2015 WL 8678394
(W.D.N.Y. Dec. 14, 2015), where a magistrate judge held that possession of
ammunition by a felon can constitute a “crime of violence” under § 3142(f)(1)(A) if
there exists a nexus between the charged offense and a crime of violence).
       61  See 18 U.S.C. § 3142(f)(1) (“The judicial officer shall hold a hearing to
determine whether any condition or combination of conditions set forth in
subsection (c) of this section will reasonably assure the appearance of such person
as required and the safety of any other person and the community . . . upon motion
of the attorney for the Government, in a case that involves . . . .” (emphasis added)).




                                          24
offense bears a factual nexus to a crime of violence.62 Thus, because
Watkins discharged the ammunition from a firearm, his charged
offense of possession of ammunition “involves” a crime of violence.

       We reject this interpretation of the word “involves” in
§ 3142(f)(1) as permitting consideration of related, but uncharged,
conduct. Not only would this interpretation produce absurd results,
but it is also demonstrably at odds with Congress’s intent.

       Admittedly, the word “involves” is susceptible to more than
one interpretation. It may, for instance, mean “to have within or as
part of itself” (i.e., include), or it may mean “to require as a necessary
accompaniment” (i.e., entail).63 The former meaning supports the
Government’s interpretation, while the latter suggests that the
arrestee must actually be charged with the enumerated offense.

       As the legislative history confirms, Congress clearly intended
the latter meaning. When Congress enacted the Bail Reform Act, it
intended to limit the availability of detention hearings to individuals
who are actually charged with certain enumerated offenses:


       62  At least one Court of Appeals appears to have tentatively espoused this
theory. See United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992) (“[I]t is not
necessary that the charged offense be a crime of violence; only that the case involve a
crime of violence or any one or more of the § 3142(f)(1) factors. But the proof of a
nexus between the non‐violent offense charged and one or more of the six § 3142(f)
factors is crucial.” (emphasis in original)). Even in Byrd, however, the Fifth Circuit
concluded that the Government had failed to satisfy the “nexus or involvement
requirement.” Id.
       63   Involve, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1191 (1981).




                                          25
                The committee has determined that
                whenever a person is charged with one of
                these offenses and the attorney for the
                Government elects to seek pretrial
                detention, a hearing should be held so that
                the judicial officer will focus on the issue of
                whether, in light of the seriousness of the
                offense charged, and the other factors to be
                considered under subsection (g), any form
                of conditional release will be adequate to
                address the potential danger the defendant
                may pose to others if released pending
                trial.64

        The Supreme Court in Salerno also appeared to endorse this
narrower interpretation: “The [Bail Reform] Act operates only on
individuals who have been arrested for a specific category of




        64 S. Rep. No. 98–225, at 21 (emphasis added); see also id. at 19 (“Section
3142(e) provides, therefore, that in a case in which a defendant is charged with one of
the serious offenses described in section 3142(f)(1) . . . a rebuttable presumption arises
that no condition or combination of conditions will reasonably assure the safety of
any other person and the community, if the judicial officer finds . . . .” (emphasis
added)); id. at *22 (“[I]f the dangerous nature of the current offense is to be a basis of
detention, then there should be evidence of the specific elements or circumstances
of the offense, such as possession or use of a weapon or threats to a witness, that
tend to indicate that the defendant will pose a danger to the safety of the
community if released.” (emphasis added)).




                                           26
extremely serious offenses.”65 Accordingly, in order to qualify for a
detention hearing under § 3142(f)(1)(A), the Government must prove
by a preponderance of the evidence that the charged offense itself
constitutes a “crime of violence” as that term is defined in
§ 3156(a)(4).

       E. Section 3142(f)(1)(E) (Bail Reform Act)

       Even if possession of ammunition by a felon were not a
categorical crime of violence under § 3142(f)(1)(A), the Government
would still have been entitled to a detention hearing in this case.
Section 3142(f)(1)(E) mandates a detention hearing in connection with
“any felony”66 if the Government proves by a preponderance of the
evidence that the charged felony “involves a minor victim or . . .
involves the possession or use of a firearm or destructive
device. . . .”67 As explained below, because of their respective
contexts, the term “involves” in this subsection bears a different
meaning than the term “involves” in the prefatory language to
§ 3142(f)(1). Whereas the term “involves” in the prefatory language
of § 3142(f)(1) restricts a judicial officer’s review to the charged



         Salerno, 481 U.S. at 750; see also id. at 755 (“The [Bail Reform] Act authorizes
        65

the detention prior to trial of arrestees charged with serious felonies who are found
after an adversary hearing to pose a threat to the safety of individuals or to the
community which no condition of release can dispel.”).
        66   18 U.S.C. § 3142(f)(1)(E) (emphasis added).
        67   Id.




                                           27
offense, the term “involves” in § 3142(f)(1)(E) expands the scope of
review to the conduct giving rise to the charged offense.

       The Supreme Court has repeatedly affirmed that “identical
language may convey varying content when used in different
statutes, sometimes even in different provisions of the same
statute.”68 The “cardinal rule” is that “statutory language must be
read in context since a phrase gathers meaning from the words
around it.”69 Here, the statute’s context—both textual and historical—
makes clear that Congress intended the word “involves” to have a
broader and more permissive meaning in § 3142(f)(1)(E) than in the
prefatory language to § 3142(f)(1).

       First, the prefatory phrase “in a case that involves” in
§ 3142(f)(1) refers, variously, to a “crime,” an “offense,” and a
“felony.” Each of these terms suggests charged conduct. By contrast,
the phrase “any felony . . . that involves” in § 3142(f)(1)(E) refers to a


       68 Yates v. United States, 135 S. Ct. 1074, 1082 (2015) (plurality opinion); see
also Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 608–09 (1932) (“Most
words have different shades of meaning, and consequently may be variously
construed, not only when they occur in different statutes, but when used more than
once in the same statute or even in the same section. Undoubtedly, there is a natural
presumption that identical words used in different parts of the same act are
intended to have the same meaning. But the presumption is not rigid and readily
yields whenever there is such variation in the connection in which the words are
used as reasonably to warrant the conclusion that they were employed in different
parts of the act with different intent.” (internal citation omitted)).
       69 General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 596 (2004) (internal
alterations and quotation marks omitted).




                                          28
“minor victim” or “the possession or use of a firearm.” These phrases
suggest factual details surrounding the charged conduct.70
Accordingly, when analyzing whether the Government is entitled to
a detention hearing under § 3142(f)(1)(E), we may consider the actual
conduct at issue in the specific case.

       Legislative history lends further support to this textual
interpretation. Subsection (E) was enacted as part of the Adam Walsh
Child Protection and Safety Act of 2006 (the “Adam Walsh Act”).71
One of the purposes of the Adam Walsh Act is “[t]o protect children
from sexual exploitation and violent crime.”72 In order to afford
minor victims of crime the greatest degree of protection, Congress
added § 3142(f)(1)(E), which authorizes a pretrial detention hearing


       70 Furthermore, as § 3156(a)(4)(A) & (B) illustrate, other sections of the Bail
Reform Act suggest that courts should not consider the unique facts and
circumstances surrounding a particular felony or offense by using phrases such as
“that has as an element” or “that, by its nature, involves.” See 18 U.S.C. §
3156(a)(4)(A), (B); Dimaya, 138 S. Ct. at 1211, 1217 (citing Leocal v. Ashcroft, 543 U.S.
1, 7 (2004)) (noting that disregarding “the particular facts underlying a conviction”
for purposes of 18 U.S.C. § 16(b) rests on that statute’s use of the language “by its
nature” (internal quotation marks omitted)). No such language appears in
§ 3142(f)(1)(E). See Dean v. United States, 556 U.S. 568, 573 (2009) (“Where Congress
includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” (internal quotation marks
omitted)).
       71   Pub. L. No. 109–248, § 216, 120 Stat. 587, 617 (2006) (codified at 18 U.S.C.
§ 3142).
       72   Id. at 587.




                                           29
for any individual who commits a felony “that involves a minor
victim” or, as relevant to Watkins, “that involves the possession or
use of a firearm.”73 By using the phrase “that involves” in this
subsection, Congress clearly intended for courts to pierce the veil of
the charged offense and consider the conduct underlying the offense,
including who was harmed and whether any firearms were used in
the course of committing the offense. If courts could not do so, felons
who clearly pose the risks contemplated by the Adam Walsh Act (i.e.,
by targeting minors or employing firearms) might not be subject to
detention hearings unless the involvement of a minor or possession
or use of a firearm was an element of the charged crime.

       Our interpretation of the phrase “that involves” is confirmed
when we consider another section of the Bail Reform Act amended
by the Adam Walsh Act: § 3142(c)(1)(B). Section 3142(c)(1)(B) now
mandates that “[i]n any case that involves a minor victim under [certain
enumerated statutes], any release order shall contain, at a minimum,
a condition of electronic monitoring.”74 While most of the
enumerated statutes in this list expressly criminalize conduct with
minors, some do not.75 Thus, Congress must have intended for


       73   18 U.S.C. § 3142(f)(1)(E).
       74   Id. § 3142(c)(1)(B).
       75 Compare, e.g., 18 U.S.C. § 1591 (sex trafficking of children); id. § 2251
(sexual exploitation of children); id § 2423 (transportation of minors), with id. § 2242
(sexual abuse); id. § 2244(a)(1) (abusive sexual contact); id. § 2421 (transportation in
interstate commerce with intent that the individual being transported engage in
prostitution).




                                          30
judicial officers to look beyond the elements of the charged offense to
determine whether any minors were “involved” in the particular
offense committed. In sum, the phrase “that involves” in
§ 3142(f)(1)(E) warrants a conduct‐specific inquiry in which the
judicial officer may look beyond the elements of the charged offense
to consider the actual conduct underlying the arrestee’s charged
offense.

      Here, the conduct underlying Watkins’s possession‐of‐
ammunition charge plainly involved the use of a firearm. After all,
Watkins discharged no fewer than nine bullets from an illegally
possessed firearm. Accordingly, the Government was also entitled to
a detention hearing under § 3142(f)(1)(E).

                                 *        *   *

      Having established that the Government was entitled to a
pretrial detention hearing under both § 3142(f)(1)(A) and
§ 3142(f)(1)(E), we find no clear error in the District Court’s
assessment of Watkins’s future dangerousness or its decision to order
Watkins’s detention. Accordingly, we affirmed the District Court’s
October 9 Order and denied Watkins’s motion for bail.

                             III. CONCLUSION

      To summarize, we hold as follows:

           (1) The “residual clause” in 18 U.S.C. § 3156(a)(4)(B) of the
           Bail Reform Act is not unconstitutionally vague.




                                     31
        (2) Possession   of   ammunition    by    a   convicted   felon
        constitutes a categorical “crime of violence” under
        § 3142(f)(1)(A) of the Bail Reform Act.


        (3) The threshold decision to hold a pretrial detention
        hearing under § 3142(f)(1)(A) of the Bail Reform Act rests on
        a judicial determination that the defendant is charged with a
        crime of violence; it is not enough to show that a significant
        factual nexus exists between the charged offense and a crime
        of violence.


        (4) Pursuant to § 3142(f)(1)(E), judicial officers may consider
        the conduct underlying an arrestee’s charged offense to
        determine whether it “involves the possession or use of a
        firearm.”

     For the foregoing reasons, we AFFIRMED the District Court’s
October 9 Order and DENIED Watkins’s motion for bail.




                                 32
