United States v. Rogers

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 15 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 03-4153

KENNETH CHARLES ROGERS,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 1:03-CR-00027 TS)

Barbara Bearnson, Assistant United States Attorney, District of Utah (Paul M.
Warner, United States Attorney, District of Utah, with her on the brief), Salt Lake
City, Utah, for Plaintiff/Appellant.

Michael J. Boyle, Boyle & Drage, P.C., Ogden, Utah, for Defendant/Appellee.

Before TACHA , Chief Circuit Judge, BRORBY , Senior Circuit Judge, and
MURPHY , Circuit Judge.

MURPHY , Circuit Judge.
 I. INTRODUCTION

The district court concluded that the United States was not entitled to an 18

U.S.C. § 3142 hearing to determine whether the defendant-appellee, Kenneth

Rogers, should be detained pending trial on charges of possession of a firearm

while subject to a protection order, in violation of 18 U.S.C. § 922(g)(8), and

possession of a firearm following a misdemeanor conviction of domestic violence,

in violation of 18 U.S.C. § 922(g)(9). According to the district court, the crimes

set out in Rogers’ indictment were not “crime[s] of violence” within the meaning

of 18 U.S.C. § 3142(f)(1)(A). Thus, the United States was not entitled to a

detention hearing. Upon consideration of the parties’ briefs and submissions, this

court concludes that violations of § 922(g)(8) and (g)(9) are “crime[s] of

violence,” entitling the United States to a detention hearing upon its request.

Accordingly, exercising jurisdiction pursuant to 18 U.S.C. §§ 3145(c) and 3731

and 28 U.S.C. § 1291, this court reverses the district court’s release order. The

case is remanded to the district court to reinstate the findings it made following

the detention hearing 1 and to order Rogers detained pending trial.

1
As set out more fully below, the district court originally held an 18 U.S.C.
§ 3142 detention hearing in this case, found by clear and convincing evidence that
Rogers was a danger to another person or to the community, and ordered Rogers
detained pending trial. Upon Rogers’ motion for reconsideration, however, the
district court concluded that it should never have held a detention hearing in the
first place because the crimes at issue in the case were not “crime[s] of violence.”
(continued...)

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 II. BACKGROUND

Rogers was indicted by a federal grand jury for possession of a firearm

while subject to a protection order, in violation of 18 U.S.C. § 922(g)(8), and

possession of a firearm following a misdemeanor conviction of domestic violence,

in violation of 18 U.S.C. § 922(g)(9). At the government’s request, a detention

hearing was held pursuant to 18 U.S.C. § 3142(f)(1). After reviewing the Pretrial

Services Report and considering the arguments of the parties presented at the

detention hearing, a magistrate judge ordered Rogers detained pending trial. The

magistrate judge specifically found that there was “a serious risk that the

defendant will endanger the safety of another person or the community” based on

Rogers’ outstanding domestic protective orders.

After Rogers filed an objection to the magistrate judge’s detention order,

the district court held a hearing on the matter. In overruling Rogers’ objection,

the district court concluded as follows:

The Court first notes that . . . the presumption is that a
defendant be released pending trial, unless there is clear and
convincing evidence that a defendant should be detained. In this
case, the Court finds, consistent with [the magistrate judge’s]
findings, that there exists clear and convincing evidence that the
defendant is a danger to a person or to the community, and should be
detained. Id.

1
(...continued)
See 18 U.S.C. § 3142(f)(1), (2) (setting out conditions under which a detention
hearing is required upon request of the United States).

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 In determining whether to detain a defendant, the Bail Reform
Act directs a court to consider, inter alia, the nature of the instant
charged offense, the weight of the evidence against the defendant,
and the defendant’s history and characteristics. 18 U.S.C. § 3142(g).
The statute also directs consideration of a defendant’s past conduct
and criminal history. Id. The Court finds that those factors all weigh
in favor of detention of the defendant in this case.
The evidence at the hearing established that the defendant has
had four separate protective orders arising out of domestic violence
situations, by four different women. Three of those protective orders
are still active. The defendant was convicted of domestic violence in
2002. The Court is concerned about the safety of the women who
found it necessary to obtain the protective orders and is alarmed by
the continued pattern of violence on the part of the defendant.
Having reviewed the [magistrate judge’s] detention order de
novo, the Court finds that there is clear and convincing evidence that
the defendant is a danger to a person or to the community and should
be detained. . . .

Shortly thereafter, Rogers moved for further review of the detention order.

In his motion, Rogers asserted that the district court had erred in holding a

detention hearing in the first instance because none of the six conditions

precedent set out in § 3142(f)(1) and (2) to the holding of such a hearing were

present in this case. 2 In response, the government asserted that the district court

2
Pursuant to § 3142(f)(1), a detention hearing shall be held “upon motion of
the attorney for the Government” in the following four situations: (1) the case
involves a “crime of violence”; (2) the case involves an offense for which the
maximum sentence is life imprisonment or death; (3) the case involves a violation
of the Controlled Substances Act, the Controlled Substances Import and Export
Act, or the Maritime Drug Law Enforcement Act, for which a maximum term of
imprisonment of ten or more years is prescribed; and (4) the case involves any
felony if the defendant has been convicted of two or more crimes of the types set
out above, no matter whether the convictions were for federal, state, or local
(continued...)

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should adopt the reasoning of the Second Circuit in United States v. Dillard, 214

F.3d 88 (2d Cir. 2000) and conclude that each of the weapon- possession crimes

set out in Rogers’ indictment were “crime[s] of violence” pursuant to §

3142(f)(1)(A). Concluding that Dillard was unpersuasive, the district court

rejected the government’s position that possessing a weapon while subject to a

protection order or possessing a weapon following a misdemeanor conviction of

domestic violence were “crime[s] of violence” for purposes of § 3142(f)(1)(A).

Instead, the district court relied on the D.C. Circuit’s decision in United States v.

Singleton, 182 F.3d 7 (D.C. Cir. 1999) for the proposition that weapon-possession

crimes are not crimes of violence. In particular, the district court concluded that

“‘nothing inherent in a § 922(g) offense creates a “substantial risk” of violence

warranting pretrial detention.’” Dist. Ct. Order at 6 (quoting Singleton, 182 F.3d

at 15).

(...continued)
2

offenses. Additionally, pursuant to § 3142(f)(2), a detention hearing shall be held
“[u]pon motion of the attorney for the Government or upon the judicial officer’s
own motion” in the following two situations: (1) there is a serious risk that the
defendant will flee; or (2) there is a serious risk that the defendant will obstruct
or attempt to obstruct justice or will “threaten, injure, or intimidate, a prospective
witness or juror” or attempt to do so.

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 III. ANALYSIS

On appeal, the government contends the district court erred in concluding

that possession of a firearm while subject to a domestic protection order and

possession of a firearm following a misdemeanor conviction of domestic violence

are not “crime[s] of violence” for purposes of the Bail Reform Act. 3 “This is a

question of the construction and applicability of a federal statute that we review

de novo.” United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003).

Section 3142(f)(1)(A) of the Bail Reform Act provides that a detention

hearing shall be held “upon motion of the attorney for the Government” in a case

that involves a “crime of violence.” The Bail Reform Act defines “crime of

violence” as follows:

(A) an offense that has an element of the offense the use, attempted
use, or threatened use of physical force against the person or property
of another;
(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
(C) any felony under chapter 109A, 110, or 117 . . . .

3
The government does not argue that the crimes at issue here fall within the
parameters of any of the other three provisions of § 3142(f)(1) or that a detention
hearing was required under the provisions of § 3142(f)(2). See infra note 2
(setting out provisions of § 3142(f)). Accordingly, this court focuses narrowly on
whether the crimes at issue here are crimes of violence under § 3142(f)(1)(A)
entitling the government to a detention hearing upon its request.

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18 U.S.C. § 3156(a)(4). It is uncontested that the crimes at issue here do not fit

within the definitions of “crime of violence” set out in § 3156(a)(4)(A) or (C).

Accordingly, the question before this court is whether possession of a firearm

while subject to a domestic protection order and possession of a firearm following

a misdemeanor conviction of domestic violence are felonies that by their very

nature involve a substantial risk that physical force may be used against the

person or property of another in the course of committing the offense. Id. §

3156(a)(4)(B). 4

It is clear that each of the crimes at issue here is a felony. See 18 U.S.C. §

3156(a)(3) (providing that the “term ‘felony’ means an offense punishable by a

maximum term of imprisonment of more than one year”); id. § 924(a)(2)

(providing that “[w]hoever knowingly violates subsection . . . (g) . . . of section

922 shall be . . . imprisoned not more than ten years”).

4
As noted by the Second Circuit, the elements of the definition in
§ 3156(a)(4)(B) 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
(v) the risk must be “substantial.”
United States v. Dillard, 214 F.3d 88, 92-93 (2d Cir. 2000).

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 We likewise conclude that possession of a firearm while subject to a

domestic protection order and possession of a firearm following a misdemeanor

conviction of domestic violence both involve a substantial risk, resulting from the

nature of the offense, 5 that physical force may be used against the person or

property of another. “[I]t [is] undeniable that possession of a gun gives rise to

some risk that the gun may be used in an act of violence. . . . Possession of a gun

greatly increases one’s ability to inflict harm on others and therefore involves

some risk of violence.” Dillard, 214 F.3d at 93. This is particularly true with

5
Like the majority of the other courts to consider this question, this court
concludes that the use of the term “by its nature” in § 3156(a)(4)(B) mandates a
categorical approach to the determination of whether a given crime fits within
§ 3156(a)(4)(B)’s definition of crime of violence. See United States v. Singleton,
182 F.3d 7, 10-12 (D.C. Cir. 1999) (collecting cases); see also Dillard, 214 F.3d
at 92 (noting that a categorical approach is most likely required by the terms of
§ 3156(a)(4)(B), but declining to definitively decide this question because it was
not necessary to the resolution of the appeal). In other words, the possibility of
force must result from the nature of the elements of the offense rather than from
the particular way that the defendant allegedly committed the crime.
Accordingly, this court does not consider the particular circumstances
surrounding Rogers’ alleged violations of § 922(g)(8) and (9). Instead, this court
considers whether possession of a firearm while subject to a domestic protection
order and possession of a firearm following a misdemeanor conviction of
domestic violence, in their generic sense, involve a risk that physical force may
be used against the person or property of another. This approach is perfectly
consistent with our recent decision in United States v. Lucio-Lucio, 347 F.3d
1202, 1204 (10th Cir. 2003) (interpreting 18 U.S.C. § 16(b), which contains a
definition of “crime of violence” identical to the definition in § 3156(a)(4)(B), as
mandating the use of a “categorical approach, under which a court must only look
to the statutory definition, not the underlying circumstances of the crime”
(quotation omitted)).

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regard to the crimes at issue in this case. A defendant whose background includes

domestic violence which advances to either a criminal conviction or the

imposition of a protection order has a demonstrated propensity for the use of

physical violence against others. See 18 U.S.C. § 921(a)(33)(A) (providing that

the term “misdemeanor crime of domestic violence . . . has, as an element, the use

or attempted use of physical force, or the threatened use of a deadly weapon”); id.

§ 922(g)(8) (defining a protection order as an order issued after notice and a

hearing, which restrains a person from engaging in conduct “that would place an

intimate partner in reasonable fear of bodily injury,” and which includes either a

finding that “such person represents a credible threat to the physical safety” of an

intimate partner or “explicitly” restrains the person from engaging in conduct

“that would reasonably be expected to cause bodily injury”); see also United

States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (noting that protection

orders that fit within the parameters of § 922(g)(8) are intended to protect a

person from credible threats and physical force by the restrained party); Gillespie

v. City of Indianapolis, 185 F.3d 693, 706 (7th Cir. 1999) (concluding

Congressional finding that “convictions for domestic violence offenses reflect a

propensity to inflict bodily harm upon others” was rational).

“The dangerousness of guns and their adaptability to use in violent crime is

why Congress has prohibited their possession” by individuals subject to a

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domestic protection order or convicted of a misdemeanor crime of domestic

violence. See Dillard, 214 F.3d at 93. “Without possession of guns such persons

are far less capable of committing acts of violence.” Id. Furthermore, the

prohibitions set out in § 922(g)(8) and (9) seek to protect society in general, and

the intimate partners of persons with a background of domestic violence in

particular, by reducing the risk of violence that may result from the possession of

guns by persons with a proven propensity for violence. Cf. id. The possession of

guns in violation of § 922(g)(8) and (9) increases the risk that individuals subject

to a domestic protection order or convicted of a misdemeanor crime of domestic

violence may engage in violent acts. Cf. id. That risk results from the nature of

the offense and is undoubtedly substantial. Cf. id.

This court recognizes that Rogers asserts such a conclusion is completely at

odds with the decision of the D.C. Circuit in United States v. Singleton, 182 F.3d

7 (D.C. Cir. 1999) and the Seventh Circuit in United States v. Lane, 252 F.3d 905

(7th Cir. 2001). Contrary to Rogers’ assertions, however, this conclusion is not

completely inconsistent with Singleton and Lane. Singleton, Lane, and Dillard all

involve the question whether 18 U.S.C. § 922(g)(1), possession of a firearm by a

convicted felon, is a crime of violence under the definition set out in §

3156(a)(4)(B). Lane, 252 F.3d at 906; Dillard, 214 F.3d at 89; Singleton, 182

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F.3d at 9-10. This case, on the other hand, focuses on whether § 922(g)(8) and

(9) are crimes of violence. This differing context is key.

In concluding that § 922(g)(1) is not a crime of violence under the terms of

the Bail Reform Act, both Singleton and Lane conclude, inter alia, that §

922(g)(1) is not a crime of violence because 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. Lane, 252 F.3d at 906-07; Singleton,

182 F.3d at 14-15. In reaching this conclusion, both courts noted that large

numbers of felonies involve economic, regulatory, or other crimes that do not

entail physical violence at all. Lane, 252 F.3d at 906; Singleton, 182 F.3d at 14-

15. Thus, both courts noted that 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. Lane, 252 F.3d at 906-07; Singleton, 182

F.3d at 14-15.

As set out at some length above, however, the underlying actions leading to

the prohibitions in § 922(g)(8) and (9) necessarily involve actual violence or

credible threats of violence. This distinction is key to this court’s conclusion that

possession of a firearm while subject to a domestic protection order and

possession of a firearm following a misdemeanor conviction of domestic violence

both involve a substantial risk, resulting from the nature of the offense, that

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physical force may be used against the person or property of another. This court

recognizes that the calculus of risk and whether that risk results from the nature

of the offense may well be different with regard to § 922(g)(1). We offer no

opinion on that question, however, because it is not before the court. Instead, we

limit our analysis to § 922(g)(8) and (9). Accordingly, read in context, this

opinion is not necessarily inconsistent with the decisions in Singleton and Lane.

The more difficult question is whether the substantial risk of physical force

created by the possession of a firearm in violation of § 922(g)(8) and (9) occurs in

“the course of committing” the weapon-offense. As to this question, we conclude

that the analysis of the court in Dillard is quite persuasive:

If one uses a gun in an act of violence, that violence necessarily
occurs during the possession of the gun. Whether the person has
possession of the gun only for a few seconds—the seconds during
which it is used for violent purposes—or has possession for years,
but uses it violently only for a few seconds, the violent use in either
case necessarily occurs during—or in the course of—the possession.
If that possession is illegal because the possessor is a [prohibited
person] who is forbidden from possessing a gun, the violent use will
inevitably have occurred in the course of the commission of the
offense of illegal possession.

214 F.3d at 93-94; see also id. at 94 n.5 (“The offense proscribed by section

922(g)(1) is not the felon’s ‘acquisition’ of a firearm; it is the felon’s possession

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of a firearm. The offense continues to be committed as long as the felon

continues to be in possession.”). 6

Our conclusion that possession of a firearm in violation of § 922(g)(8) and

in violation of § 922(g)(9) are crimes of violence for purposes of the Bail Reform

Act is not contrary to this court’s decision in United States v. Lucio-Lucio, 347

F.3d 1202 (10th Cir. 2003). The defendant in Lucio-Lucio pleaded guilty to

illegally re-entering the United States in violation of 8 U.S.C. § 1326. 347 F.3d

at 1203. He had previously been deported twice. Id. The United States

Sentencing Guidelines manual in effect at the time Lucio-Lucio was sentenced

provided for an eight-level enhancement if the defendant had committed an

“aggravated felony” prior to being deported. See U.S.S.G. § 2L1.2 (2002). The

applicable definition of “aggravated felony” included a “crime of violence” as

defined by 18 U.S.C. § 16. Section 16(b), in turn, defines crime of violence

identically to the definition of crime of violence set out in 18 U.S.C. §

3156(a)(4)(B). Prior to his deportation, Lucio-Lucio had been convicted of

6
In this particular regard, this opinion is inconsistent with both Lane and
Singleton. In concluding that § 922(g)(1) is not a crime of violence under the
terms of the Bail Reform Act, both courts held that the possibility of violence
flowing from the illegal possession of a firearm is too attenuated from the
possession to make the possession crime violent. Lane, 252 F.3d at 907-08;
Singleton, 182 F.3d at 14. On this question, we simply find the Second Circuit’s
contrary analysis in Dillard far more persuasive, 214 F.3d at 93-94, 100 (2d Cir.
2000), and reject the analyses in Lane and Singleton in favor of the analysis in
Dillard.

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driving while intoxicated. 347 F.3d at 1203. Thus, the issue in Lucio-Lucio was

whether felony driving while intoxicated was a “crime of violence.”

In answering that question in the negative, Lucio-Lucio highlighted the

requirement that the risk of physical force be used “in the course of committing

the offense.” Id. at 1205. According to Lucio-Lucio,

For a use of force to be “in the course of committing the offense,”
. . . it must be part of the course of action that the offender
commits—and thus it, too, must be actively committed. [See United
States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001)] (“section
16(b) refers only to that physical force that may be used to perpetrate
the offense”) (emphasis added); [In re Ramos, 23 I. & N. Dec. 336,
346 (BIA 2002)] (noting that cases have distinguished between
crimes that risk violent conduct and those that merely risk harmful
consequences by requiring the harm to come about through “action
rather than inaction”); United States v. Gracia-Cantu, 302 F.3d 308,
312-13 (5th Cir.2002) (holding that injury to a child is not a crime of
violence because “many convictions for this offense involve an
omission rather than an intentional use of force”). Usually, this kind
of active commission carries a connotation of at least some degree of
intent, and we are persuaded that it does so here. [See Bazan-Reyes v.
INS, 256 F.3d 600, 611 (7th Cir. 2001)]; Chapa-Garza, 243 F.3d at
927.
According to the legislative history, the paradigmatic offense
that falls under § 16(b) is burglary. S.Rep. No. 98-225, at 307,
reprinted in 1984 U.S.C.C.A.N. at 3486-87. There, what is risked is
not just injury, but intentional violence committed by the offender in
connection with the same general course of action. The burglar thus
risks committing an act of violence in connection with the
commission of the offense.
By contrast, a drunk driver typically does not mean to cause an
accident at all, and can hardly be said to “commit” the resulting
violence in the same way that a burglar does. Although the drunk
driver recklessly risks harming others, the risk is not that this will
happen intentionally (as in burglary). Rather, it is that the
impairment of the driver’s faculties will result in negligent driving,

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 which in turn will result in an accident. Thus, while burglary and
DWI are similar in that they both recklessly risk harm, they differ
greatly in the character of the act that immediately causes the harm.
A burglar is reckless of the risk of committing an intentional act of
violence; a drunk driver is reckless of the risk that he will
accidentally cause harm. Whatever the precise degree of intent
necessary to separate violent conduct from conduct that leads to
harmful consequences, it seems plain that DWI resulting in an
accident—which, when it happens, is a purely unintended
result—falls into the latter category. Hence, DWI is not within the
ambit of § 16(b). See Bazan-Reyes, 256 F.3d at 611-12 (“§ 16(b) is
limited to crimes in which the offender is reckless with respect to the
risk that intentional physical force will be used in the course of
committing the offense.”) (emphasis added); United States v.
Trinidad-Aquino, 259 F.3d 1140, 1145 (9th Cir.2001) (“[A]
defendant cannot commit a ‘crime of violence’ if he
negligently—rather than intentionally or recklessly—hits someone or
something with a physical object.”).

347 F.3d at 1205-06.

The crimes at issue in this case, violations of § 922(g)(8) and (9), are much

more like burglary, an example Lucio-Lucio identified as the“paradigmatic

offense that falls under § 16(b),” than they are like driving while intoxicated.

According to Lucio-Lucio, in a burglary “what is risked is not just injury, but

intentional violence committed by the offender in connection with the same

general course of action. The burglar thus risks committing an act of violence in

connection with the commission of the offense.” 347 F.3d at 1206. Lucio-Lucio

further explained that in the case of burglary, the defendant “is reckless with

respect to the risk that intentional physical force will be used in the course of

committing the offense.” Id. at 1206. Similarly, a person who has previously

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committed domestic violence and thereafter possesses a weapon is reckless with

respect to the risk that he might use the weapon as a means to inflict intentional

physical force. 7 That is, in the words of Lucio-Lucio, “A [person possessing a

weapon in violation of § 922(g)(8) or (9)] is reckless of the risk of committing an

intentional act of violence; a drunk driver is reckless of the risk that he will

accidently cause harm.” See id. at 1206.

For those reasons set out above, this court concludes that § 922(g)(8) and

(9) are crimes of violence for purposes of the Bail Reform Act. Thus, in contrast

to the conclusion of the district court, the government was entitled to a detention

hearing upon its request. 18 U.S.C. § 3142(f)(1)(A). Although the district court

ultimately concluded that the government was not entitled to a detention hearing,

7
We recognize that Lucio-Lucio stated in broad terms that the requirement
“[t]hat the violence be committed intentionally or close to intentionally is a
necessary condition, not a sufficient one. Of course, the phase ‘in the course of
the offense’ also suggests that the risked violence must have some nexus to the
offense conduct; an offense that increases the likelihood of intentional violence
long after the offense conduct is over may still fall outside of the § 16(b)
definition.” 347 F.3d at 1206 n.5 (citing Lane, 252 F.3d at 907). These
statements are, however, dicta. The Lucio-Lucio court was not faced with an
offense that increased the likelihood of intentional violence. Instead, as it
specifically noted, the case before it involved reckless or negligent behavior. Id.
at 1206. The crimes in this case do involve a substantial risk that intentional
violence will be employed during the commission of the offense. Furthermore, as
explained above, the crimes at issue here are ongoing; as long as the prohibited
person possesses the weapon, he is in violation of § 922(g)(8) or (9). Thus, any
intentional violence perpetrated by the prohibited person necessarily has a nexus
to the violation of § 922(g)(8) or (9). The obiter in footnote five of Lucio-Lucio
does not foreclose the result in this case.

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it originally held such a hearing and found, by clear and convincing evidence, that

Rogers presented a danger to another person or the community. Rogers does not

challenge that finding on appeal, relying instead exclusively on the assertion that

the government was never entitled to a hearing because the offenses at issue are

not crimes of violence for purposes of the Bail Reform Act. Having rejected that

contention, this court REVERSES the district court and REMANDS the matter

to the district court to reinstate its original findings and to order Rogers detained

pending trial pursuant to the terms of 18 U.S.C. §§ 3142 and 3143. 8

8
During the pendency of this appeal, the district court suppressed the
firearms underlying the charges in this case. The government filed an appeal of
the district court’s suppression order pursuant to 18 U.S.C. § 3731. 18 U.S.C. §
3143(c) provides that in such circumstances the district court is to treat the
defendant “in accordance with section 3142 of this title.” In accordance with the
stay previously issued by this court and with § 3143(c), Rogers has remained in
detention pending the resolution of the government’s appeal of the district court’s
suppression order.

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