182 F.3d 7 (D.C. Cir. 1999)
United States of America,Appellantv.Carlos T. Singleton, Appellee
No. 99-3053
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 3, 1999Decided June 25, 1999

On Consideration of Appellant's Memorandum of Law and Fact Concerning Pretrial Detention, the Memorandum of Law and Fact filed by Amicus Curiae, and the Reply  Appeal from the United States District Court for the District of Columbia,(No. 99cr00119-01)
Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellant, With her on the memorandum and reply were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and John Crabb, Jr., Assistant U.S.  Attorneys.
L. Barrett Boss, Assistant Federal Public Defender, argued the cause as amicus curiae on behalf of appellee.  With  him on the memorandum were A. J. Kramer, Federal Public  Defender, and Neil H. Jaffee, Assistant Federal Public Defender.
Billy L. Ponds, counsel for appellee, adopted the memorandum of amicus curiae.
Before:  Sentelle, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
The United States appeals from a  district court order concluding that convicted felons who  possess firearms in violation of 18 U.S.C.  922(g) (1994) have  not by that act alone committed a crime of violence warranting pretrial detention.  We affirm, holding that the plain  meaning of the BailReform Act excludes felon-in-possession  offenses from the category of violent crimes that trigger  detention hearings.

I.

2
A one count indictment charges appellee Carlos Singleton  with possession of a firearm by a convicted felon, in violation  of 18 U.S.C.  922(g).1  After a hearing, a magistrate ordered  Singleton detained pending trial because he was charged with  a crime of violence, see 18 U.S.C.  3142(f)(1)(A), and factors  enumerated in 18 U.S.C.  3142(g) warranted detention rather than conditional release.  Relying on its previous decision  in United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C. 1997), the district court concluded that a felon-in-possession  offense under  922(g) is not a crime of violence authorizing  pretrial detention, and therefore conditionally released Singleton pending trial.  The United States sought an emergency stay of the order in this court, which the court denied. This appeal followed.  See 18 U.S.C. §§ 3145(c), 3731.


3
Under the Bail Reform Act, 18 U.S.C.  3141 et seq., a  person awaiting trial on a federal offense may either be  released on personal recognizance or bond, conditionally released, or detained.  See 18 U.S.C.  3142(a).  The Act  establishes procedures for each form of release, as well as for  temporary and pretrial detention.  Detention until trial is  relatively difficult to impose.  First, a judicial officer must  find one of six circumstances triggering a detention hearing.   See 18 U.S.C.  3142(f).  Absent one of these circumstances,  detention is not an option.  See, e.g., United States v. Ploof,  851 F.2d 7, 11 (1st Cir. 1988).  Second, assuming a hearing is  appropriate, the judicial officer must consider several enumerated factors to determine whether conditions short of  detention will "reasonably assure the appearance of the person as required and the safety of any other person and the  community."  18 U.S.C.  3142(g).  The judicial officer may  order detention if these factors weigh against release.


4
The  3142(g) factors are not at issue in the instant appeal,  and only one of the triggering circumstances is relevant.   Specifically, the government contends, and Singleton disputes, that a felon-in-possession charge under  922(g) alleges a "crime of violence," which under  3142(f)(1)(A) triggers  a detention hearing.2


5
Congress has defined "crime of violence" in the Bail Reform Act in three parts, as follows:


6
the term "crime of violence" means --


7
(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;


8
(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


9
(C) any felony under chapter 109A [18 U.S.C.A.  2241 et seq.], 110 [18 U.S.C.A.  2251 et seq.], or 117 [18 U.S.C.A.  2421 et seq.].


10
18 U.S.C.  3156(a)(4).  Subpart C is irrelevant here, as is  subpart A because, as the government concedes, use of a  firearm is not an element of  922(g), which encompasses  mere possession.  Compare 18 U.S.C.  924(c)(1)(A);  Bailey  v. United States, 516 U.S. 137, 143 (1995).  The open question is whether the "nature" of an offense under  922(g) is such  that a "substantial risk" of violence arises "in the course of  committing the offense."  We first address a threshold issue  regarding the methodology for reaching the conclusion that  triggers a detention hearing, and then turn to the government's contention that a felon-in-possession charge under   922(g) is categorically a crime of violence within the meaning of  3142(f).

II.

11
The threshold issue is whether the Bail Reform Act requires courts to identify crimes of violence on a categorical or  case-by-case basis.  The government, while expressing a preference for the categorical approach, suggests that the court  may also review the specific facts of each  922(g) charge to  determine whether a particular defendant has committed the  offense in a violent manner warranting detention.  By contrast, amicus (the Federal Public Defender) joined by Singleton, maintains that the statute contemplates a categorical rule  that would treat all felon-in-possession offenses alike, and  label them "crimes of violence" only if the offense by its  general nature satisfies  3142(f).


12
The weight of authority endorses a categorical approach.   With one exception,3 published district court opinions ex- pressly considering the choice between a categorical and caseby-case approach to defining crimes of violence under   3142(f) have opted for the categorical rule.  See, e.g.,  United States v. Carter, 996 F. Supp. 260, 261-62 (W.D.N.Y.  1998);  United States v. Gloster, 969 F. Supp. 92, 94 (D.D.C.  1997);  United States v. Washington, 907 F. Supp. 476, 484  (D.D.C. 1995);  United States v. Aiken, 775 F. Supp. 855, 856  (D. Md. 1991);  United States v. Marzullo, 780 F. Supp. 658,  662 n.8 (W.D. Mo. 1991);  United States v. Phillips, 732 F.  Supp. 255, 261 (D. Mass. 1990);  United States v. Johnson, 704  F. Supp. 1398, 1400 (E.D. Mich. 1988).  Although no court of  appeals has expressly addressed this question in the context of  3142(f),4 all three circuits reviewing the identical definition of crimes of violence in 18 U.S.C.  16 (1994), outside the sentencing context,5 have also applied a categorical approach.    See United States v. Baker, 10 F.3d 1374, 1394 (9th Cir. 1993);   United States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir.  1993);  United States v. Cruz, 805 F.2d 1464, 1469-70 (11th  Cir. 1986);  see also United States v. Moore, 38 F.3d 977, 979  (8th Cir. 1994) (applying categorical approach to "crime of  violence" definition in 18 U.S.C.  924(c)(3)).  Cf. Taylor v.  United States, 495 U.S. 575, 600-01 (1990).


13
Weight of authority aside, we conclude from the plain  meaning of  3156 that a categorical approach is required.   Each of the three prongs of the statutory definition identify a  fixed category of offenses that does not expand or contract  based on the factual peculiarities of a particular case.  Section 3156(a)(4)(A) applies only to offenses that have "as an  element of the offense" aspects of physical force.  The term of art "element of the offense" makes clear that a court need look no further than the statute creating the offense to decide whether it describes a crime of violence.  Likewise,  3156(a)(4)(C) applies only to three specifically enumerated  statutes, and requires no factual analysis.


14
Section 3156(a)(4)(B) is a bit more ambiguous than its  neighbors, encompassing offenses that do not include violence  as an element, but by their "nature" entail a substantial risk  of violence.  The word "nature" has no plain meaning standing on its own, and might therefore be amenable to conflicting  interpretations.  However, the word in context, see generally  Deal v. United States, 508 U.S. 129, 132 (1993), must be read  with the preceding "its," which refers back to "offense," which  in the preceding sentence refers to the statutory provision  creating a crime rather than the factual incident constituting  the crime.  Unless the meaning of "offense" metamorphoses  from one sentence to the next, which is implausible,6 the use  of the word "nature" refers to a legal charge rather than its  factual predicate.


15
This conclusion is consistent with the language of   3142(g)(1), which permits a judicial officer during a detention hearing to consider the "nature and circumstances of the  offense charged" for the purpose of determining whether  there are conditions of release that will reasonably assure the  return of the person and the safety of others.  The distinction  between "nature" and "circumstances" clarifies that the former refers to the generic offense while the latter encompass-es the manner in which the defendant committed it.  Case-specific facts are thus relevant at a detention hearing, see  3142(g), but not when considering the government's motion under  3142(f)(1)(A) to hold such a hearing.


16
The alternative, case-by-case, approach would collapse the  distinction between the holding that triggers a detention  hearing and the factors relevant at the hearing, which are  enumerated in  3142(g).  Section 3142(f) entitles defendants  to a prompt detention hearing, either immediately at the  defendant's first appearance before a judicial officer, or within days thereafter.  In recognition of the fact that defendants  remain incarcerated between the time the court determines a  hearing is necessary and the time the hearing occurs, see   3142(f), Congress strictly limited the availability of continuances.  See id.  Accordingly, detention hearings normally  occur before either side has had an opportunity to develop its  evidentiary case, and the court's capacity to reach accurate  factual determinations is limited.  The decision whether to  hold a hearing occurs based on even less information than a  decision to detain or release:  a detention order is based on a  hearing, while an order to hold a hearing is based on a proffer  of what the hearing might establish.  The single district court  concluding that Congress contemplated a case-by-case approach overlooked this distinction, implying that reviewing  the "nature" of an offense at the hearing could illuminate  whether the hearing itself was appropriate.  See United  States v. Epps, 987 F. Supp. 22, 24-25 (D.D.C. 1997).  This  two-tiered hearing-within-a-hearing procedure would protract  detention analysis and erase the barrier that Congress constructed between sections 3142 (f) and (g).  Thus, because  adopting a case-by-case approach would blur two distinct  statutory inquiries and would give more weight to fact intensive analysis at an earlier stage of the case than Congress appears to have intended, we conclude that  3142(f)  contemplates that offenses eligible for pretrial detention hearings are ascertainable categorically by reference to their  elements, either because these elements entail the use of  violence, see  3156(a)(4)(A), or the risk of violence, see   3156(a)(4)(B).


17
At oral argument, the government offered two alternative  formulations of the text;  neither is persuasive.  First, the  government attaches significance to the fact that  3142(f)  applies to any "case" that "involves" a crime of violence.   Whatever the meaning of "case" and "involves," they clearly  apply to--rather than modify--the definition of "crime of  violence" in  3156, and that definition requires a categorical  approach to identifying predicate offenses for pretrial detention.  Second, the government notes that Congress could  have made its intention clearer by including the word  "charged" before "offense" in  3156(a)(4)(B).  For the reasons already noted, we conclude that the existing language is  sufficiently plain to require the categorical approach;  the  possibility that the statute could have been even plainer does  not mean by negative implication that Congress unambigu- ously expressed the opposite intent.


18
Accordingly, whether a felon-in-possession offense under   922(g) is a crime of violence under  3142(f) turns on a  question of law to which the underlying facts of a particular  case are irrelevant.

III.

19
Federal courts have divided over whether a felon-inpossession offense is a crime of violence warranting pretrial  detention.  To date, no court of appeals has issued a published opinion on the question.  Two circuits, including this one,  have summarily addressed the issue in unpublished opinions  that lack precedential force;  a panel of this circuit concluded  that  922(g) is a crime of violence, while a panel of the Sixth  Circuit disagreed.  See United States v. Floyd, No. 98-3082,  1998 WL 700158 (D.C. Cir. Aug. 10, 1998);  United States v.  Hardon, No. 98-1625, 1998 WL 320945 (6th Cir. June 4, 1998)  (citing United States v. Gloster, 969 F. Supp. 92, 95 (D.D.C.  1997)).7 Reported opinions of district courts also are in dis-agreement.  This district and two other districts have split internally on the question,8 while five districts form a majori-ty characterizing  922(g) as a crime of violence triggering a detention hearing.9


20
We begin with the plain meaning of the statute.  See  generally Bailey, 516 U.S. at 144-45.  However, we do not  write on a clean slate because the Supreme Court has already  recognized that Congress limited pretrial detention of persons  who are presumed innocent to a subset of defendants charged  with crimes that are "the most serious" compared to other  federal offenses.  United States v. Salerno, 481 U.S. 739, 747  (1987).10  This construction is consistent with the Senate  Report, which states that pretrial detention is necessary for  only a "small but identifiable group of particularly dangerous  defendants."  See S. Rep. No. 98-225, at 6 (1984).  That  report clearly indicated that "the offenses set forth in subsection f(1) (A) through (C) [of  3142] are ... essentially the  same categories of offenses described in the District of Co-lumbia Code" for purposes of preventive detention under local law, id. at 20-21, further suggesting that the general lan-guage of the federal statute does not embrace a large catego-ry of possession offenses that the more specific language of  the D.C. statute excluded.11  Interpretative uncertainty must  be resolved in light of the foregoing understanding of Congressional intent.12


21
The government's theory is that convicted felons who possess firearms are prone to violence, more so than non-felons  who possess firearms, and would be inclined to use firearms  during a violent incident.  Because a "substantial risk" of  violence is allegedly inherent in the possession of the gun which can quickly escalate to use--the government maintains  that a felon's mere possession of a firearm by its nature  entails a substantial risk of violence.13  This theory is laden  with factual assumptions for which the government offers no empirical support, but the argument is overstated even if taken at face value because it ignores the limiting language in  3156(a)(4)(B).


22
For a risk of violence to matter under  3142, it must arise  "in the course of committing the offense."  18 U.S.C.   3156(a)(4)(B).  The government construes "in the course  of" as purely a temporal restraint, such that when commission  of one offense correlates with and would occur contemporaneously with a second, more violent offense, then the violence of  the latter offense may be deemed a "risk" of the associated  non-violent offense.  Thus, because a felon who possesses a  firearm violates  922(g) for the duration of possession, he  would violate  922(g) during any act of violence he may  commit with the firearm, and thus these acts of violence  would arise "in the course of" a  922(g) offense.  While  nimble, this construction fails to respect the words and context of  3156.


23
First, the nexus requirement in  3156(a)(4)(B) is more  than merely temporal because the phrase "in the course of  committing" indicates that some aspect of the charged offense  must create the risk of violence in order to itself qualify as a  crime of violence.  Absent a direct relationship between the  offense and a risk of violence, the possibility of violence is not  a basis for pretrial detention on a charge that on its face does  not involve violence as an element.  The classic example of an  offense evidencing such a direct relationship is burglary.  See,  e.g., United States v. Chimurenga, 760 F.2d 400, 404 (2d Cir.  1985);  S. Rep. No. 98-225, at 307 (1984).  The risk of violence  in a burglary is not merely temporally coincident with the  offense, but arises from the actions of the burglar in committing the crime itself, and the likely consequences that would  ensue upon intervention of another person.  This more precise relationship between charged conduct and future risk is  necessary to satisfy  3156(a)(4)(B).14


24
Second, the relationship between possession and use of a  firearm is sufficiently attenuated that possession alone does  not create a "substantial risk" of use.  18 U.S.C.   3156(a)(4)(B).  As then-Chief Judge Breyer explained in  holding that felon-in-possession offenses are not violent felonies under  924(e):


25
One can easily imagine a significant likelihood that physi-cal harm will often accompany the very conduct that normally constitutes, say, burglary or arson.  It is much harder, however, to imagine such a risk of physical harm often accompanying the conduct that normally 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.


26
United States v. Doe, 960 F.2d 221, 224-25 (1st Cir. 1992).   While felons with guns may as a class be more likely than  non-felons with guns or felons without guns to commit violent  acts, nothing inherent in a  922(g) offense creates a "substantial risk" of violence warranting pretrial detention.


27
Third, even if we accept that a substantial risk of violence  arises merely because a potentially violent person possesses  an instrumentality of violence, the government's theory would  still be overbroad because not all felons are potentially more  violent than non-felons.  Numerous felonies involve economic  crimes or regulatory offenses which, while serious, do not  entail a substantial risk of physical force.  See, e.g., 18 U.S.C.  §§ 153 (embezzlement against estate);  289 (false claims for  pensions);  335 (circulation of obligations of expired corporations);  602 (solicitation of political contributions);  1025 (false  pretenses on the high seas);  1341 (frauds and swindles);  1367  (interference with the operation of a satellite);  1728 (fraudulent increase in weight of mail);  1910 (nepotism in appointment of receiver or trustee).  Section 3142(f) implicitly recognize possession of burglar's tools could qualify as violent offenses because they often occur contemporaneously with a violent offense,  such as burglary.  See, e.g., Va. Code Ann.  18.2-94;  720 Ill.  Comp. Stat. 5/19-2;  Wyo. Stat. Ann.  6-3-304. nizes this fact because it does not authorize pretrial detention  for such offenses.  Thus, a person convicted of a non-violent  crime does not become a candidate for pretrial detention  merely by subsequently possessing a firearm, as such a  person does not seem especially more likely to use the  firearm in a violent manner.  The government opposes this  reasoning because  922(g) does not distinguish between  violent and non-violent felonies, reflecting Congressional recognition of the link between felons, guns, and crime.  However, the policy considerations in favor of limiting felons' rights  to possess firearms differ substantially from those in favor of  pretrial detention of people who are presumed innocent.  See  Salerno, 481 U.S. at 750 ("The Bail Reform Act ... narrowly  focuses on a particularly acute problem" and involves a  "particularized governmental interest").  The distinction between violent and non-violent felonies is therefore meaningful  in the context of  3142(f)(1)(A) determinations even though  the distinction is irrelevant in  922(g) cases.  Cf. Old Chief v.  United States, 519 U.S. 172, 190-91 (1997).


28
Fourth, interpreting  3142(f)(1) to exclude felon-inpossession offenses does not deprive the government of an  opportunity to detain armed felons when other circumstances  warrant.  For example, pretrial detention is permissible in   922(g) cases if the defendant has two prior predicate felony  convictions, see  3142(f)(1)(D), is likely to flee, see   3142(f)(2)(A), or is likely to obstruct justice, see   3142(f)(2)(B).  When none of these factors is present, however, the government cannot secure detention by squeezing   922(g) into the "specific category of extremely serious"  violent offenses covered by  3142(f).  Salerno, 481 U.S. at  750.


29
Finally, the government maintains that legislative history  of sections 3142 and 922(g) supports the general propositions  that felons should not have guns and violent criminals should  not obtain bail.  However, none of the cited materials address  the question under review, which is whether felons who  possess firearms have thereby committed a crime of violence  sufficient to warrant pretrial detention.  Cf. Doe, 960 F.2d at  225-26.  Given the plain statutory language, any ambiguous  legislative history must yield to the words Congress used in  the statute itself.  See, e.g., Salinas v. United States, 118 S.  Ct. 469, 474 (1997).  Congress is of course free to amend   3142, but this court is bound by the language that Congress  has so far provided.


30
Our rejection of the government's interpretation is consistent with the treatment of "crimes of violence" at sentencing.   First, under the Sentencing Guidelines, certain "career offenders" may receive enhanced sentences based upon present  and past "crime[s] of violence."  U.S.S.G.  4B1.1.  The  Guidelines define "crime of violence" as:


31
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.


32
U.S.S.G.  4B1.2(a).  In an application note binding on federal courts, the Sentencing Commission has excluded felon-inpossession offenses from this definition.  See id.  4B1.2  application note 1;  Stinson v. United States, 508 U.S. 36, 47  (1993).  Amicus and Singleton reason that because  4B1.2(a)  parallels  3156(a)(4), the court should read them consistently  and exclude felon-in-possession offenses from the latter.


33
Of course, the Sentencing Commission's interpretation of   4B1.2(a) is not binding here, both because the Commission  lacks authority to interpret  3156 and because its analysis is  not "compelled" by  4B1.2(a), but is merely a sufficiently  plausible interpretation to warrant deference in sentencing  cases.  Stinson, 508 U.S. at 47.  Nevertheless, the overlap  between bail and sentencing is striking, at least in the present  context.  At sentencing, a court has extensive information  about a particular offense and the defendant has been found  guilty of it.  By contrast, before trial the judicial officer has  few facts and the defendant is presumed innocent.  Yet the  purpose of review is similar in both instances because the  court must parse violent from non-violent defendants in ap-plying the more stringent incarceration requirements that  Congress imposed on the former.  Given that under  4B1.2  a felon-in-possession charge is never a proxy for violence on a  full record when guilt is established, it would be odd to  conclude that it is categorically a proxy for violence on a thin  record when the presumption of innocence applies.  If there  were to be a distinction between the two inquiries, it presumably would run in the opposite direction.


34
The same reasoning supports the analogy that amicus and  Singleton draw to sentence enhancements under 18 U.S.C.   924(e) for  922(g) offenders who have committed three  "violent felon[ies]."  The term "violent felony" in  924(e) is  similar to the term "crime of violence" in  4B1.2(a), see 18  U.S.C.  924(e)(2)(B), and it too has been interpreted to  exclude felon-in-possession offenses.  See United States v.  Oliver, 20 F.3d 415, 417-18 (11th Cir. 1994);  Doe, 960 F.2d at  223-26.  Cf. United States v. Garcia-Cruz, 978 F.2d 537, 543  (9th Cir. 1992).15  If  922(g) violations are not a predicate for  lengthening the sentence of convicted armed recidivists, it  would be incongruous to hold that the offense nevertheless  warrants detention of merely accused armed recidivists.   Each context requires the court to implement a congressional  policy favoring incapacitation of violent offenders, and we see  no reason to suppose that  922(g) offenses trigger Congress's concern in the bail context but not in the sentencing  context.


35
Accordingly, because we conclude that  3156(a)(4)(B)  makes clear that Congress did not include possession of a  firearm by a felon within the category of offenses triggering  the government's right to a detention hearing under   3142(f)(1), we hold that Singleton has not been charged  with a crime of violence warranting pretrial detention, and we  therefore affirm the order of the district court.



Notes:


1
 Section 922(g) provides in relevant part:
It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting interstate commerce, any firearm or ammunition.
18 U.S.C.  922(g).


2
 Section 3142(f) provides in part that:
The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsec-tion (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community--(1) upon motion of the attorney for the Gov-ernment, in a case that involves--(A) a crime of violence;  (B) an offense for which the maximum sentence is life imprisonment or death;  (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Con-trolled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App.1901 et seq.);  or (D) any felony if the person has been convicted of two or more offenses described [in clauses A-C], or two or more State or local offenses that would have been offenses described [in clauses A-C] if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses;  or (2) Upon motion of the attorney for the Government or upon the judicial officer's own motion, in a case that involves--(A) a serious risk that the person will flee;  or (B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.  The hearing shall be held immediately upon the person's first appearance before the judicial officer....  Except for good cause, a continuance on motion of ... the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday).


3
 The exception is United States v. Epps, 987 F. Supp. 22  (D.D.C. 1997), which relied on a flawed description of pretrial  detention procedures, as discussed below.


4
 But cf. United States v. Byrd, 969 F.2d 106, 110 (5th Cir.  1992) (per curiam) (reviewing the record to assess the nexus  between an offense and an act of violence, but not expressly  considering or acknowledging the distinction between categorical  and case-by-case approaches to  3142(f) findings).


5
 Some courts have applied a case-by-case approach to interpreting United States Sentencing Guidelines  4B1.2(a)(1), which  defines "crime of violence" in the context of career offender enhancements in a similar fashion as 18 U.S.C. §§ 16 and 3156. See, e.g., United States v. Chapple, 942 F.2d 439, 440-42 (7th Cir. 1991).   We need not consider whether this approach is correct because the  bail and sentencing provisions are materially different:   3156  limits the range of predicate offenses to those that "by [their]  nature" create a risk of violence, while the sentencing guidelines do  not similarly limit review to the "nature" of an offense.  Cf. United  States v. Valazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996)  (stressing importance of the phrase "by its nature" in 18 U.S.C.   16 as incorporated into U.S.S.G.  2L1.2, for which the court  adopted a categorical approach).  The apparently more expansive  scope of the sentencing inquiry is consistent with the availability of  a more extensive record after trial, which makes individualized  findings more feasible than they would be immediately following  arrest.


6
 Two provisions of  3156 define "offense," although the definitions are identical for present purposes.  Subsection a(2) defines it  in part as "any criminal offense ... in violation of an Act of  Congress," while subsection b(2) defines it in part as "any Federal  criminal offense."  We read both to refer to criminal statutes,  rather than a set of facts constituting a violation of a statute.  Technically, these definitions apply only to 18 U.S.C. §§ 3141-50  and 3152-55, and thus do not control the use of "offense" elsewhere  in  3156.  The definitions are nevertheless instructive because  Congress is unlikely to have used a word in one paragraph in a  manner that contradicts the definitions of the same word in the  same section.


7
 The unpublished order in Floyd does not bind this panel.  See  D.C. Circuit Rule 28(c);  Taylor v. Federal Deposit Ins. Corp., 132  F.3d 753, 761 (D.C. Cir. 1997).


8
 Compare United States v. Robinson, 27 F. Supp. 2d 1116,  1118 (S.D. Ind. 1998) (not a crime of violence), United States v.  Gloster, 969 F. Supp. 92, 94-96 (D.D.C. 1997) (same), and United  States v. Powell, 813 F. Supp. 903, 907-08 (D. Mass 1992) (same)  with United States v. Sloan, 820 F. Supp. 1133, 1140 (S.D. Ind.  1993) (crime of violence), United States v. Floyd, 11 F. Supp. 2d 39  (D.D.C.), aff'd, No. 98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10  1998) (same), United States v. Washington, 907 F. Supp. 476, 485  (D.D.C. 1995) (same), and United States v. Phillips, 732 F. Supp.  255, 263 (D. Mass. 1990) (same).


9
 See United States v. Chappelle, 51 F. Supp. 2d 703, (E.D. Va. Apr. 26, 1999);  United States v. Campbell, 28  F. Supp. 2d 805, 808-10 (W.D.N.Y. 1998);  United States v. Butler,  165 F.R.D. 68, 72 (N.D. Ohio 1996);  United States v. Aiken, 775  F. Supp. 855, 856-57 (D. Md. 1991);  United States v. Johnson, 704  F. Supp. 1398, 1403 (E.D. Mich. 1988).


10
 The Court's construction upholding the pretrial detention  statute reflects a concern for the "importan[t] and fundamental  nature" of the defendant's "strong interest in liberty," which may be  subordinated only to "sufficiently weighty" government interests.   Salerno, 481 U.S. at 750.


11
 Contrary to the government's statement at oral argument,  the fact that firearms possession was not listed in the D.C. Bail Act  as an offense triggering a detention hearing because it was not then  a felony in the District of Columbia is irrelevant;  what the legislative history indicates is that Congress wanted to incorporate the list  of crimes that were then listed in the D.C. statute.  In referencing  the D.C. statute, the Senate Report cited D.C. Code §§ 23-1331(3)  (defining "dangerous crime") & (4) (defining "crime of violence"),  neither of which listed a purely possessory offense of any kind.


12
 If the statute were ambiguous, the rule of lenity would  require a narrow construction.  See, e.g., Bifulco v. United States,  447 U.S. 381, 387 (1980).  The rule applies to penalty provisions in  criminal statutes, see id., and is appropriate in bail proceedings as  well.  Cf. Reno v. Koray, 515 U.S. 50, 64 (1995).  Given the  Supreme Court's narrow interpretation of the pretrial detention  provisions in Salerno, 481 U.S. at 747, as well as our analysis of  plain meaning, we have no occasion to apply the rule of lenity here.


13
 The government also contends that violations of  922(g) are  crimes of violence because felons know that they may not possess  firearms, and their decision to do so is therefore a "contemptuous"  affront to the law performed in a potentially violent manner.  We  reject the premise of this argument, which taken to its logical  conclusion converts impudence into a proxy for potential violence, and thus transforms most felonies into predicates for pretrial  detention.


14
 Taken literally, the government's temporal relationship theory suggests that obviously non-violent crimes such as felonious possession of burglar's tools could qualify as violent offenses because they often occur contemporaneously with a violent offense, such as burglary.  See, e.g., Va. Code Ann.  18.2-94;  720 Ill. Comp. Stat. 5/19-2;  Wyo. Stat. Ann.  6-3-304.


15
 Accord Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998) (holding that felon-in-possession offense is not a crime of violence under 18 U.S.C.  4042(b)(3)(B));  United States v. Canon, 993 F.2d 1439, 1441 (9th Cir. 1993) (interpreting 18 U.S.C.  924(c)).


