In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4180

United States of America,

Plaintiff-Appellee,

v.

Donald K. Lane,

Defendant-Appellant.

Appeal from the United States District Court for the
Western District of Wisconsin.
No 00 CR 53 C--Barbara B. Crabb, Judge.

Submitted April 18, 2001--Decided May 31, 2001



   Before Posner, Easterbrook, and Kanne,
Circuit Judges.

  Posner, Circuit Judge. The defendant,
whose appeal to this court from his
conviction of being a felon in possession
of a firearm, 18 U.S.C. sec. 922(g)(1),
is pending, renews in this court, as he
is entitled to do, Fed. R. App. P. 9(b),
his motion for release on bail pending
the decision of his appeal. The district
judge denied the motion, which had been
filed pro se, because she thought that
the defendant had no substantial grounds
for appeal. The attorney appointed for
him on appeal has come up with a ground
that may be substantial, though that is
for the district court to consider in the
first instance, see United States v.
Swanquist, 125 F.3d 573, 575 (7th Cir.
1997)--unless the motion is barred at the
threshold because being a felon in
possession of a firearm is a "crime of
violence," defined (so far as relates to
this case) as a felony 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. sec. 3156(a)(4)(B). A defendant
found guilty of a crime of violence as so
defined may not be released pending
appeal unless "it is clearly shown that
there are exceptional reasons why such
person’s detention would not be
appropriate." sec. 3145(c); see sec.sec.
3142(f)(1)(A), 3143(b)(2). The two
circuits that have addressed the question
whether being a felon in possession of a
firearm is a crime of violence within the
meaning of section 3156(a) (4)(B) have
split, the Second Circuit holding in
United States v. Dillard, 214 F.3d 88 (2d
Cir. 2000), that it is and the District
of Columbia Circuit holding in United
States v. Singleton, 182 F.3d 7 (D.C.
Cir. 1999), that it is not.

  A person who has been convicted of
committing a felony (and not been
pardoned) 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. But is the risk substantial? And
for all felonies other than those (just
antitrust and related offenses) excepted
from the reach of section 922(g)(1) by
section 921(a)(20)(A)? We are pointed to
no evidence that it is. Most felonies
after all are not violent (it appears
that the defendant’s felony was a
nonviolent drug offense), and ex-felons
have the same motives as lawful
possessors of firearms to possess a
firearm--self-defense, hunting, gun
collecting, and target practice. The
courts have held, uniformly so far as our
research has disclosed, that being a
felon in possession is not a crime of
violence, where "crime of violence" is
defined identically or similarly to the
definition of the term in section
3156(a)(4)(B). See Royce v. Hahn, 151
F.3d 116, 123-24 (3d Cir. 1998)
(identical definition in statute
requiring Bureau of Prisons to notify
local law enforcement authorities of
imminent release of certain prisoners);
United States v. Flennory, 145 F.3d 1264,
1268 (11th Cir. 1998) (identical
definition in statute punishing various
firearm offenses); United States v.
Canon, 993 F.2d 1439, 1441 (9th Cir.
1993) (ditto); United States v. Oliver,
20 F.3d 415, 418 (11th Cir. 1994) (per
curiam) ("violent felony" defined for
purposes of the same firearms statute as
in Flennory and Canon as a felony that
"involves conduct that presents a serious
potential risk of physical injury to
another"); United States v. Garcia-Cruz,
978 F.2d 537, 543 (9th Cir. 1992)
(ditto); United States v. Doe, 960 F.2d
221, 226 (1st Cir. 1992) (ditto). Cf.
U.S.S.G. sec. 4B1.2(a)(2) and Application
Note 1; Stinson v. United States, 508
U.S. 36, 47 (1993).

  Some firearms, it is true--for example
sawed-off shotguns--have no significant
lawful use, and so their possession by
felons may well constitute a crime of
violence, as held in reference to the
sentencing guidelines in United States v.
Brazeau, 237 F.3d 842, 845 (7th Cir.
2001); United States v. Johnson, 246 F.3d
330, 335 (4th Cir. 2001); United States
v. Jennings, 195 F.3d 795, 798-99 (5th
Cir. 1999); United States v. Drapeau, 188
F.3d 987, 990 n. 4 (8th Cir. 1999);
United States v. Allegree, 175 F.3d 648,
651 (8th Cir. 1999); United States v.
Fortes, 141 F.3d 1, 8 (1st Cir. 1998);
United States v. Huffhines, 967 F.2d 314,
321 (9th Cir. 1992). Our defendant is not
accused of possessing such a weapon,
however, and we remind that the
Sentencing Commission’s interpretations
of its guidelines do not bind courts
interpreting statutes even where the
language is similar, see Neal v. United
States, 516 U.S. 284, 294 (1996), as it
is here, and that anyway even identical
language can mean very different things
in different statutes or regulations,
depending on purpose and context.

  But it can be argued that while most
felonies (even after antitrust and
related offenses are netted out) are
nonviolent, most felons are dangerous
when armed. The largest class of felons
nowadays are dealers in illegal drugs, a
violence-prone business. The Second
Circuit in Dillard asked whether felons
do a lot of violence with the weapons
they possess illegally and answered
"yes," leading to the conclusion that the
risk of violence created by being a felon
in possession of a firearm is
substantial. But the statute asks whether
there is a "substantial risk that
physical force against the person or
property of another may be used in the
course of committing the offense," and
the offense is possession of a firearm.
People who commit that offense may end up
committing another, and violent, offense,
such as robbing a bank at gunpoint, but
that doesn’t make the possession offense
violent. Otherwise we would have to say
that the offense of driving a car without
a license is a crime of violence because
people who commit that offense are likely
to drive when drunk, or to speed, or
drive recklessly, or attempt to evade
arrest. For that matter, the illegal sale
of a gun, or perhaps of a knife or
burglar tools, would on that analysis be
a crime of violence. A crime that
increases the likelihood of a crime of
violence need not itself be a crime of
violence. Bailey v. United States, 516
U.S. 137 (1995), is suggestive. The
Supreme Court distinguished simple
possession of a weapon from use in the
sense of active use, limiting the
statutory term "use" to the active
variety. The active use of a gun is a
crime of violence in a way that mere
possession of it, even if criminal, is
not. Dillard bespeaks a pre-Bailey
understanding of possession and use as
being essentially identical crimes.

  Dillard made a distinct argument based
on the provisions of the Bail Reform Act
concerning bail pending trial, as
distinct from pending appeal, the latter
being the issue in this case. See 214
F.3d at 96-97. Dillard notes that
classifying the felony of being a felon
in possession of a gun as a crime of
violence merely triggers a hearing into
whether the defendant shall be detained
pending trial. See 18 U.S.C. sec.
3142(f)(1)(A). If it turns out that he is
just a hunter or gun collector or
otherwise harmless possessor, presumably
he will be released. In contrast, unless
being a felon in possession is classified
as a crime of violence, there will be no
hearing and he will have to be released,
because the Act, with limited exceptions,
does not permit a defendant to be
detained pending trial unless he is a
flight risk or is being prosecuted for a
crime of violence. sec.sec. 3142(f)(1),
(2). But notice what Dillard does in
making this distinction the pivot of its
interpretation: it erases what is
obviously a considered legislative
decision to distinguish between bail
pending trial and bail pending appeal.
Once the defendant has been convicted,
the likelihood of a miscarriage of
justice is much less and so the
conditions for release are much tighter.
Had Congress wanted all potentially
dangerous defendants denied bail pending
trial, it would have drafted the Bail
Reform Act differently. To interpret
"crime of violence" broadly in order to
enable more defendants to be detained
pending trial is to alter the legislative
design.

  The motion for release is denied without
prejudice to the defendant’s refiling it
in the district court.
