## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 15 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. KENNETH CHARLES ROGERS,

Defendant-Appellee. No. 03-4153

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, w ith 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.1 As set out more fully below, the district court ori ginally held an 18 U.S.C.

§ 3142 detention hearing in this case, found by cle ar and convincing evidence that Rogers was a danger to another person or to the com munity, and ordered Rogers detained pending trial. Upon Rogers’ motion for re consideration, 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...) -2- 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 defe ndant-appellee, Kenneth Rogers, should be detained pending trial on charges of possession of a firearm while subject to a protection order, in violation o f 18 U.S.C. § 922(g)(8), and possession of a firearm following a misdemeanor con viction of domestic violence, in violation of 18 U.S.C. § 922(g)(9). According t o 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 parti es’ 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 detenti on 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 itmade following the detention hearing 1 and to order Rogers detained pending trial.1 (...continued)

See 18 U.S.C. § 3142(f)(1), (2) (setting out condition s under which a detention hearing is required upon request of the United Stat es). -3- II. BACKGROUND Rogers was indicted by a federal grand jury for pos session of a firearm while subject to a protection order, in violation o f 18 U.S.C. § 922(g)(8), and possession of a firearm following a misdemeanor con viction of domestic violence, in violation of 18 U.S.C. § 922(g)(9). At the gove rnment’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 th e parties presented at the detention hearing, a magistrate judge ordered Roger s detained pending trial. The magistrate judge specifically found that there was “a serious risk that the defendant will endanger the safety of another perso n or the community” based on Rogers’ outstanding domestic protective orders. After Rogers filed an objection to the magistrate j udge’s detention order, the district court held a hearing on the matter. I n 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 i s clear and convincing evidence that a defendant should be deta ined. In this case, the Court finds, consistent with [the magistr ate judge’s] findings, that there exists clear and convincing ev idence that the defendant is a danger to a person or to the communi ty, and should be detained. Id.2 Pursuant to § 3142(f)(1), a detention hearing shall be held “upon motion of

the attorney for the Government” in the following f our situations: (1) the case involves a “crime of violence”; (2) the case involv es 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 Su bstances 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; an d (4) the case involves any felony if the defendant has been convicted of two o r more crimes of the types set out above, no matter whether the convictions were f or federal, state, or local

(continued...) -4- In determining whether to detain a defendant, the B ail Reform Act directs a court to consider, inter alia , the nature of the instant charged offense, the weight of the evidence againstthe defendant, and the defendant’s history and characteristics. 1 8 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 de fendant has had four separate protective orders arising out of domestic violence situations, by four different women. Three of thos e protective orders are still active. The defendant was convicted of d omestic violence in 2002. The Court is concerned about the safety of t he women who found it necessary to obtain the protective orders and is alarmed by the continued pattern of violence on the part of th e defendant. Having reviewed the [magistrate judge’s] detention order de novo , the Court finds that there is clear and convincin g evidence that the defendant is a danger to a person or to the com munity and should be detained. . . . Shortly thereafter, Rogers moved for further reviewof the detention order. In his motion, Rogers asserted that the district co urt had erred in holding a detention hearing in the first instance because non e of the six conditions precedent set out in § 3142(f)(1) and (2) to the ho lding of such a hearing were present in this case. 2 In response, the government asserted that the dis trict court2 (...continued)

offenses. Additionally, pursuant to § 3142(f)(2), a detention hearing shall be held “[u]pon motion of the attorney for the Government o r upon the judicial officer’s own motion” in the following two situations: (1) th ere is a serious risk that the defendant will flee; or (2) there is a serious riskthat the defendant will obstruct or attempt to obstruct justice or will “threaten, i njure, or intimidate, a prospective witness or juror” or attempt to do so. -5- 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 th e weapon- possession crimes set out in Rogers’ indictment were “crime[s] of vio lence” 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 amisdemeanor conviction of domestic violence were “crime[s] of violence” for p urposes of § 3142(f)(1)(A). Instead, the district court relied on the D.C. Circ uit’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).3 The government does not argue that the crimes at is sue 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 infranote 2 (setting out provisions of § 3142(f)). Accordingly, this court focuses narrowly on whether the crimes at issue here are crimes of viol ence under § 3142(f)(1)(A) entitling the government to a detention hearing upo n its request. -6- III. ANALYSIS On appeal, the government contends the district cou rt erred in concluding that possession of a firearm while subject to a dom estic protection order and possession of a firearm following a misdemeanor con viction 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 afederal 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 provid es 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 Refo rm Act defines “crime of violence” as follows: (A) an offense that has an element of the offense t he use, attempted use, or threatened use of physical force against th e 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 . .

. .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 o ffense; (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). -7- 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 o ut 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 po ssession of a firearm following a misdemeanor conviction of domestic violence are f elonies that by their very nature involve a substantial risk that physical for ce may be used against the person or property of another in the course of comm itting the offense. Id. § 3156(a)(4)(B). 4
It is clear that each of the crimes at issue here i s 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 subse ction . . . (g) . . . of section 922 shall be . . . imprisoned not more than ten yea rs”).5 Like the majority of the other courts to consider t his 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 whethe r 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 case s); see also Dillard, 214 F.3d at 92 (noting that a categorical approach is most l ikely required by the terms of § 3156(a)(4)(B), but declining to definitively deci de 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 o f the offense rather than from the particular way that the defendant allegedly com mitted the crime. Accordingly, this court does not consider the parti cular circumstances surrounding Rogers’ alleged violations of § 922(g)( 8) and (9). Instead, this court considers whether possession of a firearm while sub ject to a domestic protection order and possession of a firearm following a misde meanor 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, underwhich a court must only look to the statutory definition, not the underlying cir cumstances of the crime” (quotation omitted)). -8- We likewise conclude that possession of a firearm w hile subject to a domestic protection order and possession of a firearm following a misdemeanor conviction of domestic violence both involve a subs tantial risk, resulting from the nature of the offense, 5 that physical force may be used against the personor property of another. “[I]t [is] undeniable that po ssession of a gun gives rise to

some risk that the gun may be used in an act of violenc e. . . . 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-9-

regard to the crimes at issue in this case. A defe ndant whose background includes domestic violence which advances to either a crimin al conviction or the imposition of a protection order has a demonstratedpropensity 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 threaten ed use of a deadly weapon”); id. § 922(g)(8) (defining a protection order as an orde r 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 thr eat to the physical safety” of an intimate partner or “explicitly” restrains the pers on 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 pr otection 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 domesti c violence offenses reflect a propensity to inflict bodily harm upon others” was rational). “The dangerousness of guns and their adaptability t o use in violent crime is why Congress has prohibited their possession” by in dividuals subject to a-10-

domestic protection order or convicted of a misdeme anor crime of domestic violence. See Dillard, 214 F.3d at 93. “Without possession of guns suchpersons 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 m ay result from the possession of guns by persons with a proven propensity for violen ce. 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 mi sdemeanor 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 co nclusion 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, h owever, 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 d efinition set out in § 3156(a)(4)(B). Lane , 252 F.3d at 906; Dillard, 214 F.3d at 89; Singleton , 182-11-

F.3d at 9-10. This case, on the other hand, focuse s on whether § 922(g)(8) and (9) are crimes of violence. This differing contextis key. In concluding that § 922(g)(1) is not a crime of vi olence 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 me re 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, bo th courts noted that large numbers of felonies involve economic, regulatory, o r 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 mi ght be some increased chance of violence flowing from the possession of a weaponby 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 under lying actions leading to the prohibitions in § 922(g)(8) and (9) necessarilyinvolve 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 con viction of domestic violence both involve a substantial risk, resulting from the nature of the offense, that-12-

physical force may be used against the person or pr operty of another. This court recognizes that the calculus of risk and whether th at 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 no t before the court. Instead, we limit our analysis to § 922(g)(8) and (9). Accordi ngly, read in context, this opinion is not necessarily inconsistent with the de cisions in Singleton and Lane

. The more difficult question is whether the substant ial risk of physical force created by the possession of a firearm in violationof § 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 viole nce necessarily occurs during the possession of the gun. Whether the person has possession of the gun only for a few seconds—the se conds during which it is used for violent purposes—or has posses sion for years, but uses it violently only for a few seconds, the v iolent use in either case necessarily occurs during—or in the course of—the possession. If that possession is illegal because the possessoris a [prohibited person] who is forbidden from possessing a gun, the violent use will inevitably have occurred in the course of the commi ssion 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 fir earm; it is the felon’s possession6 In this particular regard, this opinion is inconsis tent 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 thatthe 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 findthe Second Circuit’s contrary analysis in Dillard far more persuasive, 214 F.3d at 93-94, 100 (2d Ci r. 2000), and reject the analyses in Lane and Singleton in favor of the analysis in Dillard

. -13- of a firearm. The offense continues to be committe d as long as the felon continues to be in possession.”). 6 Our conclusion that possession of a firearm in viol ation 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 violatio n 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 defe ndant had committed an “aggravated felony” prior to being deported. See U.S.S.G. § 2L1.2 (2002). The applicable definition of “aggravated felony” includ ed 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-Luc io had been convicted of-14-

driving while intoxicated. 347 F.3d at 1203. Thus , the issue in Lucio-Lucio was whether felony driving while intoxicated was a “cri me 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 committi ng the offense,” . . . it must be part of the course of action thatthe offender commits—and thus it, too, must be actively committe d. [ 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 b e used to perpetrate the offense”) (emphasis added); [In re Ramos , 23 I. & N. Dec. 336, 346 (BIA 2002)] (noting that cases have distinguish ed between crimes that risk violent conduct and those that mer ely risk harmful consequences by requiring the harm to come about th rough “action rather than inaction”); United States v. Gracia-Cantu , 302 F.3d 308, 312-13 (5th Cir.2002) (holding that injury to a chi ld 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 le ast 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 paradigm atic offense that falls under § 16(b) is burglary. S.Rep. No. 9 8-225, at 307, reprinted in 1984 U.S.C.C.A.N. at 3486-87. There, what is risk ed is not just injury, but intentional violence committed by the offender in connection with the same general course of action. The burglar thus risks committingan act of violence in connection with the commission of the offense. By contrast, a drunk driver typically does not meanto cause an accident at all, and can hardly be said to “commit” the resulting violence in the same way that a burglar does. Alth ough 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 innegligent driving,-15-

which in turn will result in an accident. Thus, wh ile burglary and DWI are similar in that they both recklessly risk h arm, they differ greatly in the character of the act that immediatel y 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 th at he will accidentally cause harm. Whatever the precise degr ee of intent necessary to separate violent conduct from conduct that leads to harmful consequences, it seems plain that DWI resul ting in an accident—which, when it happens, is a purely uninte nded 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 intentionalphysical 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 § 9 22(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 li ke 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 c onnection with the same general course of action. The burglar thus risks committingan act of violence in connection with the commission of the offense.” 34 7 F.3d at 1206. Lucio-Lucio further explained that in the case of burglary, the defendant “is reckless with respect to the risk that intentionalphysical force will be used in the course of committing the offense.” Id. at 1206. Similarly, a person who has previously7 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 cour se, 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 like lihood of intentional violence long after the offense conduct is over may still fa ll 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 intentionalviolence. Instead, as it specifically noted, the case before it involved rec kless or negligent behavior. Id. at 1206. The crimes in this case do involve a subs tantial risk that intentional violence will be employed during the commission of the offense. Furthermore, as explained above, the crimes at issue here are ongoi ng; 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 obiterin footnote five of Lucio-Lucio does not foreclose the result in this case. -16- committed domestic violence and thereafter possesse s a weapon is reckless with respect to the risk that he might use the weapon as a means to inflict intentional physical force. 7That is, in the words of Lucio-Lucio , “A [person possessing a weapon in violation of § 922(g)(8) or (9)] is reckl ess of the risk of committing an intentional act of violence; a drunk driver is reck less of the risk that he will accidently cause harm.” See id. at 1206. For those reasons set out above, this court conclud es 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 govern ment 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 en titled to a detention hearing,8 During the pendency of this appeal, the district co urt 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 dis trict 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 § 314 3(c), Rogers has remained in detention pending the resolution of the government’ s appeal of the district court’s suppression order. -17- it originally held such a hearing and found, by cle ar and convincing evidence, that Rogers presented a danger to another person or the community. Rogers does not challenge that finding on appeal, relying instead e xclusively on the assertion that the government was never entitled to a hearing beca use the offenses at issue are not crimes of violence for purposes of the Bail Ref orm Act. Having rejected that contention, this court REVERSES the district court and REMANDS the matter to the district court to reinstate its original fin dings and to order Rogers detained pending trial pursuant to the terms of 18 U.S.C. §§ 3142 and 3143. 8