                                    PUBLISH

                   UNITED STATES CO URT O F APPEALS

                               TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,

 v.                                                         No. 06-5091

 DU STIN LEROY ING LE,

             Defendant-Appellant.



                                     OR DER
                                Filed July 18, 2006


Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.


      On the Court’s own motion, the Order and Judgment filed July 5, 2006, will

be published. The published opinion, filed nunc pro tunc to July 5, is attached.


                                                      Entered for the Court
                                                      Elisabeth A . Shumaker, Clerk

                                                      By:
                                                             Deputy Clerk
                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                       PUBLISH
                                                                      July 5, 2006
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



    U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,

    v.                                                  No. 06-5091

    DU STIN LEROY ING LE,

               Defendant-Appellant.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
              FO R TH E NO RTH ERN DISTRICT O F O K LAH O M A
                           (D .C. No. 05-CR-119-EA)


Submitted on the briefs: *

Paul D. Brunton, Federal Public Defender, Julia L. O’Connell, Assistant Federal
Public Defender, Office of the Federal Public Defender, Tulsa, Oklahoma, for
Defendant-Appellant.

David E. O’M eilia, United States Attorney, Northern District of Oklahoma,
Timothy L. Faerber, Assistant United States Attorney, Northern District of
Oklahoma, and Richard A. Friedman, Appellate Section, Criminal Division,
United States Department of Justice, W ashington, D.C., for Plaintiff-Appellee.


Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
M U RPH Y, Circuit Judge.




I.     Introduction

       W hen appellant Dustin Leroy Ingle entered a plea of guilty to the offense

of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

the district court determined he must be detained pending sentencing. According

to the district court, the offense is a “crime of violence” as the term is used in the

Bail Reform Act of 1984, 18 U.S.C. §§ 3141-56, and M r. Ingle’s detention

pending sentencing was mandatory under § 3143(a)(2).

       M r. Ingle challenges the district court’s detention order in this appeal

pursuant to Rule 9 of the Federal Rules of Appellate Procedure. Upon

consideration of the parties’ briefs and submissions, we conclude that a violation

of § 922(g)(1) is not a crime of violence under the statutory definition. W e

therefore reverse the district court’s order and remand for further proceedings

consistent with this opinion.

II.   Background

      A grand jury charged M r. Ingle with being a felon in possession of firearms

and ammunition, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged

that M r. Ingle previously had been convicted of an Oklahoma felony offense of

unlawful possession of a controlled drug. After his initial appearance before the



                                         -2-
magistrate judge on M arch 6, 2006, he was released on an unsecured $10,000 bond

under the supervision of the United States Probation Office.

       M r. Ingle entered a plea of guilty to the charge, without a plea agreement,

on April 7, 2006. 1 At his plea hearing, the district court determined that “based on

[its] analysis of section 3143(a)(2), [M r. Ingle] must be detained immediately.”

Aplt. App. at 72. Defense counsel made a brief argument against the district

court’s determination, id. at 71; government counsel did not comm ent on the issue,

id. at 71-73. The court indicated its desire for an appeal of the ruling to this court

because it “would like nothing more than guidance on this issue.” Id. The court

denied M r. Ingle’s later request for a stay of the detention order. M r. Ingle

appealed the district court’s order.

III.   Analysis

       M r. Ingle’s appeal presents a single legal question: whether the offense of

being a felon in possession of a firearm, in violation of 18 U .S.C. § 922(g)(1), is a

“crime of violence” as that term is defined in 18 U.S.C. § 3156(a)(4)(B) of the

Bail Reform Act (“the Act”). “This is a question of the construction and

applicability of a federal statute that we review de novo.” United States v. Rogers,

371 F.3d 1225, 1227 (10th Cir. 2004) (quotation omitted).



1
       The government’s brief states that M r. Ingle pleaded guilty pursuant to a
plea agreement. Aplee. Br. at 3. This statement is contrary to M r. Ingle’s
Petition to Enter Plea of Guilty, Aplt. App. at 14, and his affirmations during the
plea hearing, id. at 50-51.

                                          -3-
      A.     Consequences under the Bail Reform Act

      Our decision has significant consequences under the provisions of the Act

for 18 U.S.C. § 922(g)(1) defendants at different stages of the criminal justice

process: awaiting trial, pending sentencing, and pending appeal. The Act

contemplates varying levels of scrutiny for defendants as they proceed through the

court system. See U nited States v. Kills Enemy, 3 F.3d 1201, 1203 (8th Cir. 1993)

(contrasting pretrial releasees with convicted persons awaiting sentence, and

noting that the latter are “no longer entitled to a presumption of innocence or

presumptively entitled to [their] freedom”). Nevertheless, a defendant charged

with a crime of violence must meet a heightened standard at each level.

      Generally, the Act allows the detention of a defendant “pending trial only if

a judicial officer finds ‘that no condition or combination of conditions w ill

reasonably assure the appearance of the person as required and the safety of any

other person and the community.’” United States v. Cisneros, 328 F.3d 610, 616

(10th Cir. 2003) (quoting 18 U.S.C. § 3142(e)). W hen a crime of violence is

involved, however, a judicial officer must hold a hearing on motion of the

government to determine if any conditions would permit the safe release of the

charged defendant. § 3142(f)(1)(A).

      Pending sentencing, the presumption is that a defendant w ill be detained.

M ost defendants, however, may be released upon a showing “by clear and

convincing evidence that the person is not likely to flee or pose a danger to the

                                         -4-
safety of any other person or the community.” 18 U.S.C. § 3143(a)(1). In

contrast, a defendant who has been found guilty of a crime of violence and who is

awaiting imposition or execution of sentence is to be “detained unless . . . there is

a substantial likelihood that a motion for acquittal or new trial will be granted;

or . . . an attorney for the Government has recommended that no sentence of

imprisonment be imposed on the person,” and there is “clear and convincing

evidence that the person is not likely to flee or pose a danger to any other person

or the community.” § 3143(a)(2).

      Pending appeal, bail for most defendants must “be denied unless the court

finds that the appeal ‘raises a substantial question of law or fact likely to result in

reversal or an order for a new trial.’” United States v. Affleck, 765 F.2d 944, 952

(10th Cir. 1985) (quoting 18 U.S.C. § 3143(b)(2)). The provision applicable to a

defendant found guilty of a crime of violence and sentenced to a term of

imprisonment states simply “[t]he judicial officer shall order that [the

defendant] . . . be detained.” § 3143(b)(2).

      B.     Classification of § 922(g)(1)

      Our prior case law has narrowed our task of deciding the appropriate

classification of 18 U.S.C. § 922(g)(1); it has set out the proper analytic

framework and resolved several essential issues. Section 922(g)(1) makes it

unlawful for a person previously convicted of a felony to possess a firearm or

ammunition. See United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004).

                                           -5-
This offense is a crime of violence for purposes of the Act if it is an “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.” 18 U.S.C. § 3156(a)(4)(B). 2 W e use a categorical approach to

identify a crime of violence. Rogers, 371 F.3d at 1228 n.5. In other words, the

court does not consider the “particular circumstances surrounding” the defendant’s

alleged violation. Id. The court looks at the “generic” offense, “not the

underlying circumstances.” Id. (quotation omitted). Thus, the question is

whether the felon-in-possession offense, as a whole, should be considered a

crime of violence.

      Under 18 U.S.C. § 3156(a)(4)(B), the elements of a “crime of violence” are:

      (i) The offense must be a felony;

      (ii) the offense must involve a risk that physical force may be used
      against the person or property of another;

      (iii) that risk must result from the nature of the offense;

      (iv) the risk must be that the use of physical force would occur in the
      course of the offense; and



2
       The definition of “crime of violence” in 18 U.S.C. § 3156(a)(4) includes
two other types of offenses: an “offense that has as an element . . . the use,
attempted use, or threatened use of physical force against the person or property
of another,” see § 3156(a)(4)(A ); and a sexual exploitation offense falling within
three specified chapters of Title 18, United States Code, § 3156(a)(4)(C).
Because an unlawful possession of a firearm does not fit within these definitions,
see § 3156(a)(4)(B), there is no need to discuss them. See Rogers, 371 F.3d
at 1228.

                                           -6-
      (v) the risk must be substantial.

Id. at n.4 (quotation omitted). The existence of three of elements is incontestible.

Unquestionably, the offense is a felony. See 18 U.S.C. § 3156(a)(3) (defining

“felony” as an offense punishable by a maximum term of imprisonment of more

than one year); id. § 924(a)(2) (providing for imprisonment of up to ten years for a

violation of § 922(g)). Also, a felon in possession of a gun presents some risk of

physical force being used against another. See Rogers, 371 F.3d at 1229; see also

United States v. Lane, 252 F.3d 905, 906 (7th Cir. 2001) (“A person who has been

convicted of committing a felony . . . is no doubt more likely to make an illegal

use of a firearm than a nonfelon, and the illegal use is likely to involve violence.

Otherwise it would be a little difficult to see why being a felon in possession of a

firearm is a crime.”); United States v. Dillard, 214 F.3d 88, 93 (2d Cir. 2000)

(possession of a gun greatly increases one’s ability to inflict harm on others and

therefore involves some risk of violence). M oreover, we have previously

recognized that “[if] one uses a gun in an act of violence, that violence necessarily

occurs during the possession of the gun.” Rogers, 371 F.3d at 1230 (quotation

omitted). Thus, a “risk of physical force created by the [illegal] possession of

a firearm . . . occurs in ‘the course of committing’ the weapon-offense.” Id.

      Accordingly, we need to consider only two elements: whether the risk

results from the categorical nature of the offense and whether the risk is

substantial. This court has not reached these two questions in the context of a

                                          -7-
§ 922(g)(1) offense. In Rogers, we decided that possession of a firearm while

subject to a protection order and possession of a firearm following misdemeanor

conviction of domestic violence are “crimes of violence” for purposes of the Bail

Reform Act. Id. at 1230. But we explicitly limited our discussion to the offenses

before us in that case and declined to resolve the issues in relation to possession of

a firearm by a convicted felon. Id. “This differing context is key.” Id. at 1229.

      Nevertheless, we have ample guidance on the issues. M any other

circuit courts have provided thoughtful discussions on the nature of the

felon-in-possession offense and the substantiality of the risk. The majority of

these courts have determined that a § 922(g)(1) offense does not satisfy these

elements. See United States v. Bowers, 432 F.3d 518, 524 (3d Cir. 2005); United

States v. Johnson, 399 F.3d 1297, 1302 (11th Cir. 2005) (per curiam); United

States v. Twine, 344 F.3d 987, 987-88 (9th Cir. 2003) (per curiam); Lane, 252 F.3d

at 906-08; United States v. Singleton, 182 F.3d 7, 16 (D .C. Cir. 1999). See also

United States v. Hardon, No. 98-1625, 1998 W L 320945, at *1 (6th Cir. June 4,

1998) (unpublished). The Second Circuit has held to the contrary. See Dillard,

214 F.3d at 104. W e are persuaded by the rationale of the majority position.

      Concerning the categorical nature of the crime, it is apparent that

§ 922(g)(1) offenses present “numerous factual scenarios.” Johnson, 399 F.3d

at 1301. The offense applies to persons with greatly diverse propensities and

previously convicted of a wide range of conduct. “[N]ot all felons are potentially

                                          -8-
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.” Singleton, 182 F.3d at 15. “[A]nd ex-felons have the same

motives as lawful possessors of firearms to possess a firearm–self-defense,

hunting, gun collecting, and target practice.” Lane, 252 F.3d at 906. Accordingly,

we conclude that a felon-in-possession offense under § 922(g)(1) is not inherently

a crime of violence.

      For coinciding reasons, we also decide that

      the mere possession of a firearm by a convicted felon does not create
      a substantial risk that physical force will be used against the property
      or person of another. . . . [L]arge numbers of felonies involve
      economic, regulatory, or other crimes that do not entail physical
      violence at all. Thus . . . although there might be some increased
      chance of violence flowing from the possession of a weapon by a
      felon, that risk could simply not be classified as substantial.

Rogers, 371 F.3d at 1229 (citations omitted) (explaining the reasoning of the

Singleton and Lane decisions).

      W e acknowledge the frustration of the district court in its comment that

“[t]he broad coverage of 18 U.S.C. § 922(g)(1)–including both violent and

non-violent felons–probably makes the most correct answer to the question of

whether commission of the offense constitutes a crime of violence not ‘yes’ or

‘no,’ but ‘sometimes.’” United States v. Green, 414 F. Supp. 2d 1029, 1035

(N.D. Okla. 2006) (referenced in the court’s ruling in the instant case). Yet

under the structure of the Bail Reform Act and established case law, “either

                                          -9-
felon-in-possession is a crime of violence or it is not.” Nicole J. Bredefeld, Note,

The Bail Reform Act of 1984 and Felons who Possess Weapons: Discrepancy

Among the Federal Courts, 26 Seton Hall Legis. J. 215, 233 (2001) (quotation

omitted).

      W e hold that a § 922(g)(1) offense is not a crime of violence for purposes of

the Act because the nature of the offense does not involve a substantial risk of

physical force used against the person or property of another. As applied to

M r. Ingle, this means that he is eligible for bail pending sentencing if a judicial

officer concludes there is clear and convincing evidence that he “is not likely to

flee or pose a danger to the safety of any other person or the community.”

18 U.S.C. § 3143(a)(1).

IV.   Conclusion

      Having rejected the premise of the district court’s order, this court

REVERSES the decision of the district court and REM ANDS the matter to the

district court for further proceedings consistent with this opinion.




                                          -10-
