Evans v. Zych

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0186p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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MICHAEL EVANS,
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Petitioner-Appellant,
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No. 09-1094
v.
,
>
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Respondent-Appellee. -
C. ZYCH,
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 08-10316—Thomas L. Ludington, District Judge.
Argued: April 21, 2011
Decided and Filed: July 12, 2011
Before: MARTIN, SUHRHEINRICH, and KETHLEDGE; Circuit Judges.

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COUNSEL
ARGUED: Rajeev Muttreja, JONES DAY, New York, New York, for Appellant.
Patricia Gaedeke, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Rajeev Muttreja, JONES DAY, New York, New York, for
Appellant. Patricia Gaedeke, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee. Michael Evans, West Plains, Missouri, pro se.

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OPINION
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SUHRHEINRICH, Circuit Judge. Petitioner-Appellant, Michael Evans
(“Evans”), challenges the classification of his convictions for violations of 26 U.S.C.
§ 5861(d) and 26 U.S.C. § 5861(e) as “crimes of violence” under 18 U.S.C. § 924(c)(3),
for purposes of 18 U.S.C. § 4042(b), which requires the Bureau of Prisons (“BOP”) to
notify state, tribal, and local law enforcement officials prior to the release of a prisoner

1
No. 09-1094 Evans v. Zych Page 2

convicted of a crime of violence. This is an issue of first impression in this circuit. We
conclude that the crimes of possession and transfer under § 5861 are not crimes of
violence with the meaning of § 924(c)(3). Accordingly, we REVERSE the district
court’s judgment and ORDER the removal of Evans’s classification. We also
VACATE the district court’s decision regarding Evans’s access to legal papers as that
issue is now moot.

I. BACKGROUND

Evans operated a pawn shop in southern Missouri. Although federally licensed
to deal in firearms and ammunition, in late 2004 and early 2005, Evans traded and sold
several firearms that were not properly registered under federal law.

Evans pleaded guilty to one count of unlawful receipt and possession of a firearm
in violation of 26 U.S.C. § 5861(d), and two counts of unlawful transfer of a firearm in
violation of 26 U.S.C. § 5861(e). On September 15, 2006, the Western District of
Missouri sentenced Evans to 37 months of imprisonment and three years of supervised
release.

In January 2008, Evans, then a prisoner at the Federal Correctional Institution
(“FCI”) in Milan, Michigan, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 in the Eastern District of Michigan. He alleged the BOP incorrectly
classified his offenses as crimes of violence for purposes of BOP programming and the
notification requirements of 18 U.S.C. § 4042(b). When an offense is a crime of
violence, § 4042(b) requires the BOP to provide written notice to state, tribal, and local
law enforcement at least five days prior to the release of a prisoner; or for a prisoner
serving a term of supervised release, the probation officer must provide notice at least
five days prior to a change in residence. Section 4042(b) defines crime of violence by
reference to 18 U.S.C. § 924(c)(3). Evans also asserted that the BOP denied him access
to legal documents necessary for the preparation of a 28 U.S.C. § 2255 petition.

In response, the government contended that Evans failed to exhaust his
administrative remedies because the BOP denied his internal appeals as untimely. The
No. 09-1094 Evans v. Zych Page 3

government also argued that a § 2241 petition was not the proper vehicle to challenge
the § 4042 notification requirement, because it does not relate to the conditions or
duration of confinement.

On October 7, 2008, the district court issued its opinion. First, the court
dismissed the government’s exhaustion challenge. It reasoned that the § 2241
exhaustion requirement is prudential, not jurisdictional. With respect to Evans’s
notification challenge, the court explained “that a § 5861 conviction qualifies as a crime
of violence because of the correlation between the possession of certain unregistered
firearms and violence and physical injury,” and refused to grant Evans relief.1 In
support, the district court cited the Eleventh Circuit’s decision in United States v. Owens,
447 F.3d 1345 (11th Cir. 2006), which held that possession in violation of § 5861 was
a crime of violence as defined in § 4B1.2(a) of the U.S. Sentencing Guidelines so as to
warrant a sentence enhancement pursuant to U.S. Sentencing Guidelines
§ 2K2.1(a)(4)(A) (providing a base offense level of 20). The court also cited to the Fifth
Circuit’s decision in United States v. Jennings, 195 F.3d 795 (5th Cir. 1999), which held
that possession of an unregistered pipe bomb in violation of § 5861 was a crime of
violence within the meaning of 18 U.S.C. § 924(c)(3) for purposes of a mandatory
sentence enhancement pursuant to a conviction under § 924(c)(1) (requiring a sentence
of not less than five years for using or carrying a firearm during a crime of violence).

The district court also denied Evans relief on his legal documents claim,
concluding that he had already received or had an alternative form of access to the
requested documents.

Evans filed a motion to alter or amend the judgment. After the district court
denied the motion, Evans filed this appeal. Since filing his appeal, Evans has been
released from the FCI, but remains under supervised release.

1
The district court did not address the government’s argument that a § 2241 petition may not
include challenges to a notification requirement.
No. 09-1094 Evans v. Zych Page 4

II. ANALYSIS

A. Standard of Review

This court reviews de novo the district court’s dismissal of a habeas petition filed
pursuant to 28 U.S.C. § 2241. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th
Cir. 2006).

B. Mootness

1. Notification Claim

After Evans’s release from the FCI, the government filed a motion to dismiss his
appeal. It argued the case was moot because Evans was no longer in custody and was
no longer subject to the regulations he challenged. We denied the motion because Evans
remains subject to the notification provision of 18 U.S.C. § 4042(b) throughout his term
of supervised release.

The government now argues that Evans’s appeal is moot because any further
obligation to provide notice under § 4042 is imposed on Evans’s probation officer and
not on the BOP. This may be, but it does not negate the fact that Evans remains subject
to the notification requirement; thus, this case is not moot. See Rem v. U.S. Bureau of
Prisons, 320 F.3d 791, 793 (8th Cir. 2003) (per curiam) (finding that a prisoner’s
challenge to the § 4042(b) notification requirement was not moot because the prisoner
“remains subject to the statute during the remainder of his supervised release” despite
the government’s argument that “because notification was issued when [he] was released
to supervision” the challenge was moot).

Furthermore, the BOP is the entity that classified Evans’s offenses as crimes of
violence and it is the BOP that retains the power to re-classify Evans’s offenses, should
we conclude that his convictions do not meet the requirements of § 4042(b).
No. 09-1094 Evans v. Zych Page 5

2. Withheld Legal Documents Claim

In his habeas petition, Evans asserted that the BOP prevented him from accessing
certain legal documents necessary for the preparation of a 28 U.S.C. § 2255 petition.
The parties agree that Evans’s release moots this claim as he now has access to all
available legal papers. Evans asks that we vacate the district court’s decision with
respect to his legal documents claim to ensure he is not prejudiced should he choose to
take other legal action at some future date relative to the BOP’s decision to deny him
access to his legal papers while incarcerated. See, e.g., Christopher v. Harbury, 536 U.S.
403, 414 (2002) (discussing claims for denial of access to courts that “do not look
forward to a class of future litigation, but backward to a time when specific litigation
ended poorly, or could not have commenced, or could have produced a remedy
subsequently unobtainable” (footnote omitted)).

Because Evans’s post-release access to his available legal papers moots his claim
and prevents him from challenging this aspect of the district court’s decision, we
VACATE the decision on this issue so as to prevent the judgment from prejudicing
Evans in future litigation. See Ford v. Wilder, 469 F.3d 500, 505 (6th Cir. 2006) (citing
U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 21-22 (1994))
(allowing vacatur when a civil case becomes moot during an appeal in order to eliminate
a judgment the losing party was prevented from opposing on direct review).

C. Merits

Evans asserts that the § 4042(b) notification requirement should not apply to his
convictions under 26 U.S.C. § 5861(d) and § 5861(e) because neither crime requires the
risk of force during the commission of the crime called for in § 924(c)(3).

Section 4042(b) defines crime of violence by explicit reference to § 924(c)(3),
which provides:

[T]he term “crime of violence” means an offense that is a felony and–
(A) has an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
No. 09-1094 Evans v. Zych Page 6

(B) 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.

Although neither the Supreme Court nor this circuit has considered whether
violations of § 5861 are crimes of violence within the definition of § 924(c)(3), several
circuits have with varying results. Compare United States v. Jennings, 195 F.3d 795
(5th Cir. 1999) (holding possession in violation of § 5861 is a crime of violence under
§ 924(c)(3) for purposes of a § 924(c)(1) conviction), and United States v. Amparo,
68 F.3d 1222 (9th Cir. 1995) (recognizing a § 5861 conviction as a crime of violence
under § 924(c)(3) for purposes of § 924(c)(1)), with United States v. Serafin, 562 F.3d
1105 (10th Cir. 2009) (holding that a conviction under § 5861(d) for possession of an
unregistered weapon is not a crime of violence within the meaning of § 924(c)(3) and
reversing defendant’s conviction under § 924(c)(1) for possession of a firearm during
a crime of violence).

In United States v. Jennings, the Fifth Circuit held that possession of a pipe bomb
in violation of § 5861(d) was a crime of violence under § 924(c)(3) for purposes of a
§ 924(c)(1) conviction because “possession of an unregistered pipe bomb, by its very
nature, creates a substantial risk of violence.” 195 F.3d at 798. The Jennings court
reasoned that to qualify as a crime of violence “an offense need not actually involve
violence,” but instead must merely “create a substantial risk of the possible use of force.”
Id. (citation omitted). Thus, “if a felony involves a strong possibility of violence . . . it
is a crime of violence.” Id. The Jennings court determined that the possession of a pipe
bomb presented such a risk. Id. Indeed, the court observed that it could not “conceive
of any non-violent . . . uses for a pipe bomb” and that possession of a pipe bomb is a
crime because of the “virtual inevitability that such possession will result in violence.”
Id. at 798-99.

The Jennings opinion served as persuasive authority for the Eleventh Circuit in
United States v. Owens, 447 F.3d 1345 (11th Cir. 2006), when it considered for purposes
of a sentencing enhancement whether possession of an unregistered firearm in violation
of § 5861 was a crime of violence under a similar definition of crime of violence found
No. 09-1094 Evans v. Zych Page 7

in the U.S. Sentencing Guidelines. Section 4B1.2(a) of the U.S. Sentencing Guidelines
provides:

The term “crime of violence” means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that:
(1) has 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.

The Owens court relied on Jennings for the proposition that possession of an
unregistered firearm “should be outlawed because of ‘the virtual inevitability that such
possession will result in violence.’” 447 F.3d at 1347 (quoting Jennings, 195 F.3d at
799)). It also observed that a number of courts had determined that “a section 5861
conviction qualifies as a crime of violence for sentence enhancement purposes.” Id. at
1346 (collecting cases). The Owens court thus concluded that “possession of certain
kinds of weapons categorically presents the potential risk of physical injury warranting
sentence enhancement for being a crime of violence,” id. at 1347, and affirmed the
enhanced base offense level of 20 set by the sentencing court.

By contrast, in United States v. Serafin, the Tenth Circuit rejected the reasoning
of the Jennings court and concluded that a conviction under § 5861 for possession of an
unregistered weapon was not a crime of violence pursuant to § 924(c)(3) so as to warrant
a § 924(c)(1) conviction. 562 F.3d at 1115-16. In reaching this conclusion, the Serafin
court relied on the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004).

At issue in Leocal was whether a conviction for driving under the influence was
a crime of violence as defined by 18 U.S.C. § 16, and therefore an “aggravated felony”
warranting deportation under the Immigration and Nationality Act. Id. at 5-6. Section
16 contains language virtually identical to § 924(c)(3):2

2
We have previously recognized the essentially identical nature of § 924(c)(3) and § 16. See
United States v. Sawyers, 409 F.3d 732, 739 n.6 (6th Cir. 2005) (citing 18 U.S.C. § 924(c)) (discussing
the definition of a “crime of violence” and stating that “[i]n some places, the definition from § 16 is used.”
No. 09-1094 Evans v. Zych Page 8

The term “crime of violence” means--
(a) an offense that has an element 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.

The Court explained that to determine whether an offense is a crime of violence, it must
“look to the elements and the nature of the offense of conviction, rather than to the
particular facts relating to petitioner’s crime.” Id. at 7.

Starting its analysis with the statutory language, the Court emphasized that the
“critical aspect” of subsection (a) was that a crime of violence involves the “use . . . of
physical force against the person or property of another,” which necessarily requires an
active employment of force, suggestive of “a higher degree of intent than negligent or
merely accidental conduct.” Id. at 9.

The Court acknowledged that “[§] 16(b) sweeps more broadly than § 16(a)” in
that it defines a crime of violence as including any felony offense 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.’” Id. at 10 (quoting the statute).
Parsing this language, the Court explained that § 16 covers offenses that “naturally
involve a person acting in disregard of the risk that physical force might be used against
another in committing an offense.” Id. Critically, the Court emphasized, the risk
identified in § 16(b) relates to the risk that force will be used in committing a crime, and
not the risk that harm might arise from the offense conduct. Id. To underscore this
point, the Court contrasted the broader language of the U.S. Sentencing Guidelines,
which requires only a risk of injury to another. Id. at 10 n.7. Concluding its statutory
analysis, the Court stressed that “§ 16’s emphasis on the use of physical force against
another person (or the risk of having to use such force in committing a crime), suggests
a category of violent active crimes” that does not include DUI offenses. Id. at 11. The
Court cautioned that including accidental or negligent conduct in § 16 would “blur the
distinction” Congress sought to achieve by identifying some crimes as violent. Id.
No. 09-1094 Evans v. Zych Page 9

Applying the Leocal framework, the Serafin court reasoned that § 5861 does not
include conduct that “naturally involves a disregard of a substantial risk of force against
another” or a risk that “force arises during the course of committing the offense - a
violent, active offense,” because possession may occur in an “array of non-violent
circumstances,” Serafin, 562 F.3d at 1114 (quotations and citations omitted). Further,
under a categorical approach, a § 5861 offense “does not necessarily implicate a
disregard of a risk of force, nor does it anticipate that force may be used in the course of
receiving or possessing the unregistered firearm.” Id.

Other courts have analyzed the § 16 crime of violence language in a similar
manner. See, e.g., United States v. Hull, 456 F.3d 133, 141 (3d Cir. 2006) (rejecting
possession of a pipe bomb as a crime of violence under § 16 for purposes of an 18 U.S.C.
§ 842(p)(2)(A) violation); United States v. Diaz-Diaz, 327 F.3d 410, 414 (5th Cir. 2003)
(holding that the possession of a short-barrel firearm in violation of state law is not a
§ 16 crime of violence).

We agree with the Tenth Circuit’s conclusion that § 5861(d) is not a crime of
violence under § 924(c)(3). As Leocal directs, we adopt a categorical approach, looking
to the language of the statute, rather than the particular facts of Evans’s crimes. Section
5861 provides that it is unlawful:

(d) to receive or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record; or
(e) to transfer a firearm in violation of the provisions of this chapter[.]

Section 5861 by its terms requires that an individual possess or transfer a firearm; neither
offense includes “the use . . . of physical force” as an element, so § 924(c)(3)(A) does
not apply. Leocal, 543 U.S. at 9. Nor does either act inherently involve a risk of force.
Of course, possession or transfer of a firearm may ultimately result in the use of force
against another. But possession may also “occur in an array of non-violent
circumstances, weakening the link between possession and [the risk of] violence,”
Serafin, 562 F.3d at 1114 (quoting United States v. Bowers, 432 F.3d 518, 521 (3d Cir.
2005)) (internal quotation marks omitted), and the same may be said of transfer. In other
No. 09-1094 Evans v. Zych Page 10

words, an individual may violate § 5861 by unlawfully possessing or transferring an
unregistered firearm without necessarily involving any risk, let alone any substantial
risk, that force will be used against another. Thus, under a categorical approach, these
offenses do not fall within the definition of § 924(c)(3)(B). As a result, Evans’s
convictions are not crimes of violence under § 4042(b) and do not fall within the class
of crimes requiring notification.

As the Serafin court observed, Jennings is not persuasive because it was decided
before Leocal and failed to adequately consider the language in § 924(c)(3)(B) requiring
the risk of force to occur “in the course of committing the offense.” See id. at 1115. The
Owens decision is similarly unpersuasive as it omitted any analysis of the “in the course
of” language, and understandably so, as § 4B1.2(a) of the U.S. Sentencing Guidelines
itself omits this clause. For these reasons, the district court’s reasoning and reliance on
Jennings and Owens is inconsistent with Leocal. That is, a simple correlation between
the crime of conviction and the possibility of future violence is not sufficient; there must
be a risk that force is used in the commission of the criminal act.

Finally, we note that this conclusion is consistent with other decisions of this
court interpreting crime of violence in similar contexts. For example, in United States
v. Amos, 501 F.3d 524 (6th Cir. 2007), the court considered whether the possession of
a sawed-off shotgun in violation of 18 U.S.C. § 922(g) could serve as a violent felony
under the Armed Career Criminal Act (“ACCA”).3 The majority opinion observed that
the “used in the course of committing the offense” clause found in § 16(b), “does not
appear in the ACCA, narrows the section 16(b) definition and distinguishes it from that
in the ACCA.” Id. at 527. Nonetheless, even under the broader ACCA definition, the
court explained that, although possession creates a risk of harm in some instances, “the

3
The ACCA uses language that mirrors the U.S. Sentencing Guidelines’ crime of violence
definition to define “violent felony” as a felony that:
(i) has as an element the use, attempted use, or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B).
No. 09-1094 Evans v. Zych Page 11

same cannot be said for all instances of possession, such as where [the sawed-off
shotgun] is stored unloaded in an attic or the trunk of a car.” Id. at 528-29. The court
therefore rejected categorizing possession as a violent felony under the ACCA.4

The concurring opinion in Amos cited the Leocal decision as additional support
for the majority’s conclusion that mere possession would not create the risk of physical
injury to another required by the ACCA. Id. at 530 (Batchelder, J., concurring). The
dissent disputed this analysis. Id. at 530-31 (McKeague, J., dissenting). It
acknowledged Leocal dictates that possession is likely not a crime of violence under
§ 16, but that because “§ 16 differs from both the ACCA and the U.S.S.G. § 4B1.2. . . .
a different analysis is clearly required under either the ACCA or the Guidelines.” Id. at
533, 534.

Also instructive is Orr v. Hawk, 156 F.3d 651 (6th Cir. 1998), in which this court
considered a challenge to the BOP’s denial of early release on the grounds that
petitioner’s conviction under 18 U.S.C. § 922(g) as a felon-in-possession was a crime
of violence. Id. at 652. The court concluded that the § 922(g) possession charge was not
a crime of violence that could serve to deny early release. Id. at 656. In so holding, the
Orr court observed that although “[s]everal sections of the Criminal Code define crimes
of violence . . . none mentions mere possessory offenses as falling within its purview.”
Id. And more specifically, it noted that a § 922(g) possession offense does not satisfy
the general definition of crime of violence found in 18 U.S.C. § 16. Id.

For these reasons we hold that convictions under 26 U.S.C. § 5861 (d) and (e)
are not crimes of violence within the meaning of 18 U.S.C. § 924(c)(3) and do not
require notification under 18 U.S.C. § 4042(b).

4
Our decision in United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009), which held that
possession of a sawed off shotgun was a crime of violence under the U.S. Sentencing Guidelines, is not
to the contrary. The Hawkins court recognized the Circuit’s binding decision in Amos and the highly
similar language used in the ACCA’s violent felony and U.S. Sentencing Guidelines’ crime of violence
definitions. Id. at 617. Nonetheless, the court explained that a different result was required because the
Application Note accompanying the U.S. Sentencing Guidelines specifically identifies possession of a
sawed-off shotgun as constituting a crime of violence. Id.
No. 09-1094 Evans v. Zych Page 12

III. CONCLUSION

We VACATE the district court’s judgment with respect to Evans’s request to
legal papers. We REVERSE the judgment with respect to the classification of Evans’s
convictions as crimes of violence under 18 U.S.C. § 924(c)(3) and ORDER the BOP to
modify Evans’s classification accordingly.