United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 3, 1999 Decided June 25, 1999
No. 99-3053
United States of America,
Appellant
v.
Carlos T. Singleton,
Appellee
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, Thom-
as J. Tourish, Jr., and John Crabb, Jr., Assistant U.S.
Attorneys.
L. Barrett Boss, Assistant Federal Public Defender, ar-
gued 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 De-
fender.
Billy L. Ponds, counsel for appellee, adopted the memoran-
dum of amicus curiae.
Before: Sentelle, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The United States appeals from a
district court order concluding that convicted felons who
possess firearms in violation of 18 U.S.C. s 922(g) (1994) have
not by that act alone committed a crime of violence warrant-
ing pretrial detention. We affirm, holding that the plain
meaning of the Bail Reform Act excludes felon-in-possession
offenses from the category of violent crimes that trigger
detention hearings.
I.
A one count indictment charges appellee Carlos Singleton
with possession of a firearm by a convicted felon, in violation
of 18 U.S.C. s 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. s 3142(f)(1)(A), and factors
enumerated in 18 U.S.C. s 3142(g) warranted detention rath-
er than conditional release. Relying on its previous decision
in United States v. Gloster, 969 F. Supp. 92, 94-96 (D.D.C.
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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. s 922(g).
1997), the district court concluded that a felon-in-possession
offense under s 922(g) is not a crime of violence authorizing
pretrial detention, and therefore conditionally released Sin-
gleton pending trial. The United States sought an emergen-
cy stay of the order in this court, which the court denied.
This appeal followed. See 18 U.S.C. ss 3145(c), 3731.
Under the Bail Reform Act, 18 U.S.C. s 3141 et seq., a
person awaiting trial on a federal offense may either be
released on personal recognizance or bond, conditionally re-
leased, or detained. See 18 U.S.C. s 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. s 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 enu-
merated factors to determine whether conditions short of
detention will "reasonably assure the appearance of the per-
son as required and the safety of any other person and the
community." 18 U.S.C. s 3142(g). The judicial officer may
order detention if these factors weigh against release.
The s 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 dis-
putes, that a felon-in-possession charge under s 922(g) alleg-
es a "crime of violence," which under s 3142(f)(1)(A) triggers
a detention hearing.2
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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 imprison-
ment or death; (C) an offense for which a maximum term of
Congress has defined "crime of violence" in the Bail Re-
form Act in three parts, as follows:
the term "crime of violence" means--
(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;
(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 [18 U.S.C.A.
s 2241 et seq.], 110 [18 U.S.C.A. s 2251 et seq.], or 117
[18 U.S.C.A. s 2421 et seq.].
18 U.S.C. s 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 s 922(g), which encompasses
mere possession. Compare 18 U.S.C. s 924(c)(1)(A); Bailey
v. United States, 516 U.S. 137, 143 (1995). The open question
__________
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 Govern-
ment 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 threat-
en, 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).
is whether the "nature" of an offense under s 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 govern-
ment's contention that a felon-in-possession charge under
s 922(g) is categorically a crime of violence within the mean-
ing of s 3142(f).
II.
The threshold issue is whether the Bail Reform Act re-
quires courts to identify crimes of violence on a categorical or
case-by-case basis. The government, while expressing a pref-
erence for the categorical approach, suggests that the court
may also review the specific facts of each s 922(g) charge to
determine whether a particular defendant has committed the
offense in a violent manner warranting detention. By con-
trast, amicus (the Federal Public Defender) joined by Single-
ton, 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 s 3142(f).
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 case-
by-case approach to defining crimes of violence under
s 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
__________
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.
of s 3142(f),4 all three circuits reviewing the identical defini-
tion of crimes of violence in 18 U.S.C. s 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. s 924(c)(3)). Cf. Taylor v.
United States, 495 U.S. 575, 600-01 (1990).
Weight of authority aside, we conclude from the plain
meaning of s 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. Sec-
tion 3156(a)(4)(A) applies only to offenses that have "as an
__________
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 s 3142(f) findings).
5 Some courts have applied a case-by-case approach to inter-
preting United States Sentencing Guidelines s 4B1.2(a)(1), which
defines "crime of violence" in the context of career offender en-
hancements in a similar fashion as 18 U.S.C. ss 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: s 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.
s 16 as incorporated into U.S.S.G. s 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.
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,
s 3156(a)(4)(C) applies only to three specifically enumerated
statutes, and requires no factual analysis.
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 stand-
ing 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.
This conclusion is consistent with the language of
s 3142(g)(1), which permits a judicial officer during a deten-
tion 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 for-
__________
6 Two provisions of s 3156 define "offense," although the defini-
tions 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. ss 3141-50
and 3152-55, and thus do not control the use of "offense" elsewhere
in s 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.
mer 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
s 3142(g), but not when considering the government's motion
under s 3142(f)(1)(A) to hold such a hearing.
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 s 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 with-
in 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
s 3142(f), Congress strictly limited the availability of continu-
ances. 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 ap-
proach 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 con-
structed 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 Con-
gress appears to have intended, we conclude that s 3142(f)
contemplates that offenses eligible for pretrial detention hear-
ings are ascertainable categorically by reference to their
elements, either because these elements entail the use of
violence, see s 3156(a)(4)(A), or the risk of violence, see
s 3156(a)(4)(B).
At oral argument, the government offered two alternative
formulations of the text; neither is persuasive. First, the
government attaches significance to the fact that s 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 s 3156, and that definition requires a categorical
approach to identifying predicate offenses for pretrial deten-
tion. Second, the government notes that Congress could
have made its intention clearer by including the word
"charged" before "offense" in s 3156(a)(4)(B). For the rea-
sons 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.
Accordingly, whether a felon-in-possession offense under
s 922(g) is a crime of violence under s 3142(f) turns on a
question of law to which the underlying facts of a particular
case are irrelevant.
III.
Federal courts have divided over whether a felon-in-
possession offense is a crime of violence warranting pretrial
detention. To date, no court of appeals has issued a publish-
ed 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 s 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-
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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).
agreement. This district and two other districts have split
internally on the question,8 while five districts form a majori-
ty characterizing s 922(g) as a crime of violence triggering a
detention hearing.9
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 subsec-
tion f(1) (A) through (C) [of s 3142] are ... essentially the
same categories of offenses described in the District of Co-
__________
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, ___ F. Supp. 2d ____, 1999
WL 305109 (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.
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 Con-
gressional intent.12
The government's theory is that convicted felons who pos-
sess 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
__________
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 legisla-
tive 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 ss 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 s 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,
empirical support, but the argument is overstated even if
taken at face value because it ignores the limiting language in
s 3156(a)(4)(B).
For a risk of violence to matter under s 3142, it must arise
"in the course of committing the offense." 18 U.S.C.
s 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 contemporane-
ously 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 s 922(g) for the duration of possession, he
would violate s 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 s 922(g) offense. While
nimble, this construction fails to respect the words and con-
text of s 3156.
First, the nexus requirement in s 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 commit-
ting the crime itself, and the likely consequences that would
ensue upon intervention of another person. This more pre-
cise relationship between charged conduct and future risk is
necessary to satisfy s 3156(a)(4)(B).14
__________
and thus transforms most felonies into predicates for pretrial
detention.
14 Taken literally, the government's temporal relationship theo-
ry suggests that obviously non-violent crimes such as felonious
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.
s 3156(a)(4)(B). As then-Chief Judge Breyer explained in
holding that felon-in-possession offenses are not violent felo-
nies under s 924(e):
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 consti-
tutes 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.
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 s 922(g) offense creates a "sub-
stantial risk" of violence warranting pretrial detention.
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.
ss 153 (embezzlement against estate); 289 (false claims for
pensions); 335 (circulation of obligations of expired corpora-
tions); 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 (fraudu-
lent increase in weight of mail); 1910 (nepotism in appoint-
ment of receiver or trustee). Section 3142(f) implicitly recog-
__________
possession of burglar's tools could qualify as violent offenses be-
cause they often occur contemporaneously with a violent offense,
such as burglary. See, e.g., Va. Code Ann. s 18.2-94; 720 Ill.
Comp. Stat. 5/19-2; Wyo. Stat. Ann. s 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 s 922(g) does not distinguish between
violent and non-violent felonies, reflecting Congressional rec-
ognition of the link between felons, guns, and crime. Howev-
er, 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 be-
tween violent and non-violent felonies is therefore meaningful
in the context of s 3142(f)(1)(A) determinations even though
the distinction is irrelevant in s 922(g) cases. Cf. Old Chief v.
United States, 519 U.S. 172, 190-91 (1997).
Fourth, interpreting s 3142(f)(1) to exclude felon-in-
possession offenses does not deprive the government of an
opportunity to detain armed felons when other circumstances
warrant. For example, pretrial detention is permissible in
s 922(g) cases if the defendant has two prior predicate felony
convictions, see s 3142(f)(1)(D), is likely to flee, see
s 3142(f)(2)(A), or is likely to obstruct justice, see
s 3142(f)(2)(B). When none of these factors is present, how-
ever, the government cannot secure detention by squeezing
s 922(g) into the "specific category of extremely serious"
violent offenses covered by s 3142(f). Salerno, 481 U.S. at
750.
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
s 3142, but this court is bound by the language that Congress
has so far provided.
Our rejection of the government's interpretation is consis-
tent with the treatment of "crimes of violence" at sentencing.
First, under the Sentencing Guidelines, certain "career of-
fenders" may receive enhanced sentences based upon present
and past "crime[s] of violence." U.S.S.G. s 4B1.1. The
Guidelines define "crime of violence" as:
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.
U.S.S.G. s 4B1.2(a). In an application note binding on feder-
al courts, the Sentencing Commission has excluded felon-in-
possession offenses from this definition. See id. s 4B1.2
application note 1; Stinson v. United States, 508 U.S. 36, 47
(1993). Amicus and Singleton reason that because s 4B1.2(a)
parallels s 3156(a)(4), the court should read them consistently
and exclude felon-in-possession offenses from the latter.
Of course, the Sentencing Commission's interpretation of
s 4B1.2(a) is not binding here, both because the Commission
lacks authority to interpret s 3156 and because its analysis is
not "compelled" by s 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 s 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 presum-
ably would run in the opposite direction.
The same reasoning supports the analogy that amicus and
Singleton draw to sentence enhancements under 18 U.S.C.
s 924(e) for s 922(g) offenders who have committed three
"violent felon[ies]." The term "violent felony" in s 924(e) is
similar to the term "crime of violence" in s 4B1.2(a), see 18
U.S.C. s 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 s 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 s 922(g) offenses trigger Con-
gress's concern in the bail context but not in the sentencing
context.
Accordingly, because we conclude that s 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
s 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.
__________
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. s 4042(b)(3)(B)); United States v. Canon, 993 F.2d
1439, 1441 (9th Cir. 1993) (interpreting 18 U.S.C. s 924(c)).