[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-16502 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
February 14, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00101-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELIUS JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 14, 2005)
Before TJOFLAT, DUBINA and COX, Circuit Judges.
PER CURIAM:
In this interlocutory appeal pursuant to Federal Rule Appellate Procedure 9,
Cornelius Johnson challenges the district court’s order requiring his detention under
18 U.S.C. § 3143 after having pleaded guilty to a violation of 18 U.S.C. § 922(g)(1),
which prohibits the possession of a firearm by a felon. We expedited this appeal in
order to address the issue before it becomes moot. Because we conclude that
possession of a firearm by a felon is not a “crime of violence” within the meaning of
18 U.S.C. § 3156(a)(4), we vacate and remand.
I. BACKGROUND AND PROCEDURAL HISTORY
A grand jury sitting in the Southern District of Alabama charged Johnson in a
one-count indictment with being a felon in possession of a firearm, a violation of 18
U.S.C. § 922(g)(1). Following his arraignment, Johnson was released with conditions
pending trial. He then filed a plea document informing the court of his intent to enter
a guilty plea. Johnson appeared in court, stipulated to all facts necessary to a
conviction, and entered a guilty plea.
After the plea, the defendant asked to be released pending sentencing on the
same conditions as his pretrial release. The district court, however, having concluded
that the defendant’s § 922(g)(1) conviction constituted a “crime of violence”
requiring his detention upon conviction absent “unusual circumstances,” ordered the
defendant detained pending sentencing under 18 U.S.C. § 3143. Johnson filed a
notice of interlocutory appeal. He remains incarcerated pending sentencing, which
is scheduled for February 25, 2005.
2
II. CONTENTIONS OF THE PARTIES AND STANDARD OF REVIEW
Johnson contends that being a felon in possession of a firearm in violation of
§ 922(g)(1) is not a “crime of violence” within the meaning of 18 U.S.C. §
3156(a)(4), defining that term. The Government contends, in response, that the
inherent risk of harm involved whenever a convicted felon possesses a firearm
requires its categorization as a “crime of violence.” We review questions of statutory
interpretation de novo. United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir.
2004).
III. DISCUSSION
The question before us is whether a violation of § 922(g)(1), which proscribes
the possession of a firearm by a felon, constitutes a “crime of violence” within the
meaning of § 3156(a)(4). This is a question of first impression in this circuit.1
18 U.S.C. § 3143(a)(2), which deals with detention after conviction but before
sentencing, provides as follows:
1
United States v. Flennory, 145 F.3d 1264 (11th Cir. 1998) is not on point, and the comment
in that opinion that possession of a firearm by a felon is not a “crime of violence” under 18 U.S.C.
§ 924(c)(3) for purposes of sentencing was dictum unnecessary to the decision in that case. The
decision in United States v. Oliver, 20 F.3d 415 (11th Cir. 1994), holding that possession of a firearm
by a convicted felon was not a “violent felony” within the meaning of 18 U.S.C. § 924(e), is
persuasive, but the statutory definition at issue was somewhat different. In United States v. Stinson,
943 F.2d 1268 (11th Cir. 1991), we held that possession of a firearm by a felon was a “crime of
violence” within the meaning of § 4B1.2 of the Sentencing Guidelines. This opinion also has
persuasive value, but is not controlling both because it is not directly on point and because the
opinion was vacated after the commentary to the relevant Sentencing Guideline was amended.
3
The judicial officer shall order that a person who has been found guilty
of an offense in a case described in subparagraph (A), (B), or (C) of
subsection (f)(1) of section 3142 and is awaiting imposition or execution
of sentence be detained unless )
(A) (i) the judicial officer finds there is a substantial likelihood
that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no
sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that
the person is not likely to flee or pose a danger to any other person or
the community.
18 U.S.C. § 3143(a). Section 3142(f)(1), in turn, lists a “crime of violence” under
subparagraph (A). 18 U.S.C. § 3142(f)(1). Section 3156(a)(4) defines the term
“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 . . .
18 U.S.C. § 3156(a)(4).
The Government concedes that a violation of § 922(g)(1), which proscribes the
possession of a firearm by a felon, does not entail any “use of force” as described in
§ 3156(a)(4)(A), nor does it arise under any specific subchapter listed in §
3156(a)(4)(C). Rather, the Government argues that a § 922(g)(1) charge “by its
nature, involves a substantial risk that physical force against the person or property
4
of another may be used in the course of committing the offense,” and thus meets the
definition for a “crime of violence” under § 3156(a)(4)(B).
While the question before us is an issue of first impression in this circuit, at
least three other circuits have addressed the question. In United States v. Dillard, 214
F.3d 88 (2d Cir. 2000), the Second Circuit held that the offense of being a convicted
felon in possession of a firearm under § 922(g)(1) qualified as a “crime of violence”
under § 3156(a)(4)(B). The court concluded that a felon in possession of a firearm
inherently involved some risk of harm to the public.
While it is possible to commit violent crimes without possession or use
of a gun (by using knives, bludgeons, brute force, acids, poisons, etc.),
guns are without doubt the most potent and efficient instrument for
violent crime. For that reason, they are undoubtedly the instrument of
choice among the vast majority of violent criminals.
We think it 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.
Id. at 93. The court also believed that such risk could be characterized as
“substantial,” though the meaning of the Act was “open to dispute.” To resolve the
issue, the court turned to the legislative history of the statute. The court believed that
including felon in possession of a firearm as a “crime of violence” would further the
objectives of the Act, and “had Congress explicitly focused on the issue it would have
by far preferred the construction that subjects the felon illegally in possession to a
5
detention hearing . . . .” Id. at 97. The language of the Act, coupled with the court’s
reading of the legislative history, led the court to the conclusion that possession of a
firearm by a felon qualified as a “crime of violence.” Id. at 104.
A different conclusion was reached in United States v. Singleton, 182 F.3d 7
(D.C. Cir. 1999), which held that the plain meaning of the statute precluded a
conclusion that possession of a firearm by a felon is an offense properly characterized
as a crime of violence under the statute. In Singleton, the court concluded that §
3156(a)(4)(B) must be interpreted categorically, and that the word “nature” in that
subsection referred to the nature of the legal charge rather than its factual predicate.
Id. at 11. Furthermore, the court said any risk of violence must occur “in the course
of committing the offense.” Id. at 14. The Singleton court concluded that this was
not simply a temporal limitation, but required a direct relationship between the
offense and the risk of violence. The best example would be the crime of burglary.
“The risk of violence in a burglary is not merely temporally coincident with the
offense, but arises from the actions of the burglar in committing the crime itself, and
the likely consequences that would ensue upon intervention of another person. This
more precise relationship between charged conduct and future risk is necessary to
satisfy § 3156(a)(4)(B).” Id.
6
With this conceptual framework in mind, the Singleton court went on to
explain why any connection between possession of a firearm and a risk of violence
is too attenuated to satisfy § 3156(a)(4)(B). Simple possession, even by a felon, can
take many forms. Not only can a felon violate §922(g)(1) by carrying a firearm in a
pocket, for example, but also by storing a firearm in a closet or automobile. Id. at 15.
Furthermore, while many felons, in fact, are more likely than nonfelons to commit
violent acts using a firearm, not all felons are potentially more violent than nonfelons.
Felonies included under § 922(g)(1) encompass some nonviolent crimes such as
embezzlement or fraud. Therefore, the nature of the felon-in-possession offense does
not involve a substantial risk that physical force might be used in the course of its
commission, and thus it could not categorically qualify as a “crime of violence.”
Additionally, interpreting § 3142(f)(1) to exclude felon-in-possession would not
deprive the government of an opportunity to detain armed felons when circumstances
warrant detention. Id. at 15.
The Seventh Circuit came to a similar conclusion in United States v. Lane, 252
F.3d 905 (7th Cir. 2001). Writing for the court, Judge Posner concluded that “[t]he
active use of a gun is a crime of violence in a way that mere possession of it, even if
criminal, is not.” Id. at 907-08. And although most felons, as a class, may be more
dangerous than nonfelons, “Most felonies after all are not violent . . . and ex-felons
7
have the same motives as lawful possessors of firearms to possess a
firearm—self-defense, hunting, gun collecting, and target practice.” Id. at 906. Thus,
it could not be said that being a felon in possession, by its nature, created a substantial
risk of violence.
Though not on point, the Supreme Court’s recent opinion in Leocal v. Ashcroft,
125 S. Ct. 377 (2004), is instructive. In Leocal, the petitioner, a lawful permanent
resident of the United States, was convicted of two counts of driving under the
influence of alcohol (“DUI”) and causing injury to another in violation of Florida law.
While serving his prison sentence, the Immigration and Naturalization Service
initiated removal proceeding against him under § 237(a) of the Immigration and
Nationality Act. That section permits deportation of an alien convicted of an
“aggravated felony.” The Act defines “aggravated felony” as including “a crime of
violence” as defined in 18 U.S.C. § 16. Subsection 16(b), in turn, provides the
following definition of a “crime of violence”: “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 held that a DUI conviction under Florida Law did not meet the
definition as set forth in §16(b).
8
§ 16(b) does not . . . encompass all negligent misconduct, such as the
negligent operation of a vehicle. It simply 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. The reckless
disregard in § 16 relates not to the general conduct or to the possibility
that harm will result from a person's conduct, but to the risk that the use
of physical force against another might be required in committing a
crime. The classic example is burglary. A burglary would be covered
under § 16(b) not because the offense can be committed in a generally
reckless way or because someone may be injured, but because burglary,
by its nature, involves a substantial risk that the burglar will use force
against a victim in completing the crime.
Leocal, 125 S. Ct. at 383 (emphasis added). Therefore, while driving under the
influence created a risk of injury to others, it could not be characterized as a “crime
of violence” because any such risk was not a natural outcome of an illegal use of
force.
§ 16(b) plainly does not encompass all offenses which create a
“substantial risk” that injury will result from a person's conduct. The
“substantial risk” in § 16(b) relates to the use of force, not to the
possible effect of a person's conduct. . . . The risk that an accident may
occur when an individual drives while intoxicated is simply not the same
thing as the risk that the individual may “use” physical force against
another in committing the DUI offense.
Id at 383 n.7. The proper meaning of “crime of violence” thus identified a class of
violent, active crimes and not DUI. Id.
The Singleton and Lane courts reached the correct result. The issue of whether
§922(g)(1) is a “crime of violence” under § 3156(a)(4) is a categorical question, and
9
thus is not dependent upon the specific facts of the case. See Singleton, 182 F.3d at
11; see also Leocal, 125 S. Ct. at 381. As the Singleton and Lane courts pointed out,
the crime of possession of a firearm is presented by numerous factual scenarios.
While possession of a firearm under certain circumstances may, in fact, involve
conduct that creates a substantial risk of violence, many factual scenarios do not
present such a risk. See Lane, 252 F.3d at 906-07 (“[E]x-felons have the same
motives as lawful possessors of firearms to possess a firearm ) self-defense, hunting,
gun collecting, and target practice,” although “[s]ome firearms, it is true . . . have no
significant lawful use, and so their possession by felons may well constitute a crime
of violence . . . .”). Similarly, while many predicate felonies may increase the risk
that a particular defendant is more prone to violence than the general population, the
felons precluded from possessing a firearm under § 922(g) include persons convicted
of nonviolent felonies such as fraud or embezzlement. See Singleton, 182 F.3d at 15.
Therefore, the connection between any possible risk created and the simple
possession of a firearm by a felon is simply too attenuated to meet the definition set
forth in § 3156(a)(4)(B).
Leocal is instructive. The teaching of Leocal requires us to ask whether the
offense of possession of a firearm by a felon categorically presents a substantial risk
of violence. We conclude that the answer is “No.” Although possession of a firearm
10
by a felon, like drunk driving, may in some cases involve conduct that creates a
heightened risk of injury or violence, it cannot be said that the offense of simple
possession of a firearm “naturally involve[s] a person acting in disregard of the risk
that physical force might be used against another in committing an offense.” See id.
at 383. It is not an active crime, like burglary, which necessarily creates a substantial
risk of violence. Thus, felon in possession of a firearm under § 922(g)(1) is simply
not the sort of violent, active crime that may be properly characterized, categorically,
as a “crime of violence.”
IV. CONCLUSION
Because we conclude that possession of a firearm by a felon is not a “crime of
violence” for purposes of 18 U.S.C. § 3156(a)(4), the district court’s order denying
Johnson’s motion for release pending sentencing is vacated, and the case is remanded
with instructions that the district court reconsider the issue of release pending
sentencing consistent with this opinion. The mandate shall issue immediately. See
FED. R. APP. P. 41.
Appellant’s “Motion for Release Pending Appeal,” construed as a motion for
release pending sentencing, is DENIED without prejudice to Appellant’s right to
renew the motion in district court.
11
ORDER VACATED, CASE REMANDED. THE MANDATE SHALL ISSUE
IMMEDIATELY.
12