2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-27-2005

USA v. Bowers

Precedential or Non-Precedential: Precedential

Docket No. 05-4908

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-4908

 

UNITED STATES OF AMERICA

v.

RYSHEEN BOWERS,

 Appellant

 

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 04-cr-00133)

District Judge: Honorable Joseph J. Farnan, Jr.

 

Submitted on Motion for Bail Pursuant to FRAP 9(a)

November 9, 2005

Before: RENDELL, AMBRO, and BECKER, Circuit Judges.

(Filed: December 27, 2005 )

 

COLM F. CONNOLLY

United States Attorney

SHANNON T. HANSON

Assistant United States Attorney

1007 Orange Street

Suite 700

Wilmington, DE 19899

Attorneys for Appellee
2

PENNY MARSHALL

JONATHAN PIGNOLI

Office of Federal Public Defender

704 King Street

First Federal Plaza, Suite 110

Wilmington, DE 19801

Attorneys for Appellant

____________

OPINION OF THE COURT

_____________

BECKER, Circuit Judge.

This appeal addresses the motion of defendant Rysheen

Bowers to set aside the District Court’s affirmance of the

Magistrate Judge’s order denying pretrial release. The District

Court concluded that the Magistrate Judge did not err in holding

a detention hearing or in ordering Bowers detained. The District

Court’s decision was predicated largely upon its conclusion that

the crime with which Bowers was charged, felon in possession

of a firearm, 18 U.S.C. § 922(g)(1), is a crime of violence within

the meaning of 18 U.S.C. §§ 3142(g) and (f)(1)(A). Section

3142(f)(1)(A) requires a Court to hold a detention hearing upon

motion by the government if the defendant is charged with a

crime of violence. Section 3142(g) lists factors that a Court

must consider in deciding whether to release a defendant

pending trial, “including whether the offense is a crime of

violence.” 18 U.S.C. § 3142(g)(1). 

Under 18 U.S.C. § 3156(a)(4), the term “crime of

violence,” for purposes of both Sections 3142(g) and 3142

(f)(1)(A), means:

(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
3

(C) any felony under chapter 109A, 110, or 117.

Subpart C does not apply here, and neither does subpart

A, because the actual use of the firearm in the felon’s possession

is not an element of the violation of § 922(g)(1). United States

v. Singleton, 182 F.3d 7, 10 (D.C. Cir. 1999). Thus, a felon in

possession has committed a crime of violence only if the nature

of that offense is such that there is a “substantial risk” that he

will use “physical force” against another “in the course of” his

possession of the weapon.

In accordance with the weight of authority of the four

circuits that have decided the issue, and with our own opinion

dealing with whether felon in possession of a firearm is a crime

of violence under a nearly identical statute, we conclude that the

crime of felon in possession is not a crime of violence within the

meaning of § 3156(a)(4). We will therefore vacate the order of

the District Court. However, we will remand for further

proceedings so that the District Court may determine, in spite of

our holding that felon in possession of a firearm is not a crime of

violence, whether § 3142(f) requires a detention hearing and

whether the § 3142(g) factors requires Bowers’ detention.

I. FACTS AND PROCEDURAL HISTORY

Bowers is currently charged in a one-count indictment

alleging that he possessed a firearm as a felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The charge results from the

discovery of a firearm during an administrative search of Bowers’

home by Delaware police and probation officers. Bowers was on

probation at the time of the administrative search.

On January 6, 2004, the Magistrate Judge held a detention

hearing, and he issued a detention order on March 3, 2005. The

District Court affirmed the Magistrate Judge’s order on October 25,

2005. The District Court found that the detention hearing was

justified under § 3142(f)(1)(A) because felon in possession of a

firearm is a crime of violence and thus did not reach the

government’s contention that the detention hearing was justified

because Bowers is a flight risk under § 3142(f)(2)(A). Relying

heavily on the conclusion that felon in possession of a firearm is

also a crime of violence under § 3142(g), the District Court further

held that the Magistrate Judge had properly ordered Bowers
1

Bowers was initially charged for possession as a felon

under Delaware law and was charged with the present federal

offense after he was released on bail in Delaware state court. 

4

detained.

The District Court also considered several other factors that

support detention under § 3142(g). First, there was strong

evidence that Bowers is guilty of the current charge, because

officers claim to have seen him throw a pistol out of a window in

his home during the administrative search. Second, Bowers was

on unsupervised state probation at the time of the alleged offense.

Third, during both the administrative search and his later arrest,

Bowers was “initially uncooperative,” and law enforcement

officers had to enter with force. Fourth, Bowers “has an extensive

criminal history that includes a felony conviction for possession of

cocaine with intent to distribute, and charges of resisting arrest,

criminal impersonation, drug offenses, carrying a concealed deadly

weapon, and assault.” Finally, Bowers had allegedly failed to

appear in state court, resulting in five capiases. Bowers disputes

the significance of the capiases, because they contained a return

stating that he “was not found guilty of nonappearance,” and that

there is no allegation that his bond status changed as a result of any

of the capiases. In addition, there was no evidence that he had

received actual notice in the applicable cases. 

There was considerable countervailing evidence inveighing

against detention, including Bowers’ strong family and community

ties, the fact that he had employment prospects, and the fact that he

did not flee after he was released on bail for a closely related state

charge.1

 In addition, it was argued that Bowers will not flee

because the sentence he faces is not severe. Bowers submitted

letters from employers stating that they would employ him on

release and a number of letters from members of his family and

community. Bowers’ mother, who has Crohn’s disease, testified

that Bowers “has been coming over to the house every day

checking on me, running errands for me.” Bowers also has a

young son.

II. DISCUSSION

As an initial matter, we must determine whether §
5

3156(a)(4) requires us to classify offenses as violent or nonviolent

on a categorical or a case-by-case basis. In other words, is an

offense violent due to the generic offense charged or because of the

facts underlying a particular case? We are persuaded by the

reasoning of the D.C. Circuit that the word “offense” as used in §

3156(a)(4) “refers to a legal charge rather than its factual

predicate.” United States v. Singleton, 182 F.3d 7, 10 (D.C. Cir.

1999). As the D.C. Circuit noted, “[t]he weight of authority

endorses a categorical approach.” See id. at 10 & n.3 (collecting

cases). 

This conclusion is consistent with our jurisprudence, for we

have applied the categorical approach to a statute that defines

“crime of violence” in terms almost identical to those of §

3156(a)(4). See Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998).

Thus, we consider whether a § 922(g)(1) offense is categorically a

crime of violence, as opposed to whether Bowers’ alleged conduct

in this case was violent.

 As noted above, four Courts of Appeals have considered

whether felon in possession of a firearm,18 U.S.C. § 922(g)(1), is

a “crime of violence” as that term is defined by 18 U.S.C. §

3156(a)(4). The District of Columbia, Seventh, and Eleventh

Circuits have held that felon in possession of a firearm is not a

crime of violence. See United States v. Johnson, 399 F.3d 1297

(11th Cir. 2005); United States v. Lane, 252 F.3d 905 (7th Cir.

2001); Singleton, 182 F.3d 7. One Court has disagreed. See

United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). In view of the

comprehensive opinions of the District of Columbia, Seventh and

Eleventh Circuits, with which we agree, we need not reinvent the

wheel. Rather, we draw upon the consistent views of these Courts

in explicating our ratio decidendi. We distill the most persuasive

reasons underlying the decisions of these Courts.

First, the plain language of § 3156(a)(4)(B) applies only

to crimes that “involve[] a substantial risk” of violence. 18

U.S.C. § 3156(a)(4)(B). A substantial risk means “a direct

relationship between the offense and a risk of violence.”

Singleton, 182 F.3d at 14. Establishing such a link between

possession of a firearm to potential violence requires

unwarranted “factual assumptions.” Id. at 14. In contrast to

crimes such as arson, possession of a firearm can occur in an

array of non-violent circumstances, weakening the link between

possession and violence:
6

“One can easily imagine a significant likelihood

that physical 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 constitutes 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.”

Id. at 14-15 (quoting United States v. Doe, 960 F.2d 21, 224-25

(1st Cir. 1992) (Breyer, C.J.)); see also Lane, 252 F.3d at 906

(“[E]x-felons have the same motives as lawful possessors of

firearms to possess a firearm--self-defense, hunting, gun

collecting, and target practice.”); Johnson, 399 F.3d at 1300

(“Simple possession, even by a felon, can take many forms.”). 

 The manner in which Bowers’ firearm was discovered

illustrates then-Chief Judge Breyer’s observation in Doe. In the

middle of the night, police and parole officers surprised Bowers

in his home, and there is no suggestion that he was engaged in

violent activity.

Second, and relatedly, the mere fact that the particular

individual who possesses a firearm is a felon does not permit an

inference that he will use the weapon violently. Singleton, 182

F.3d at 15. Felons are not necessarily prone to violence, for

“[n]umerous felonies involve economic crimes or regulatory

offenses which, while serious, do not entail a substantial risk of

physical force.” Id. It is true that “offenses relating to the

regulation of business practices” do not qualify as predicate

offenses under § 922(g)(1). 18 U.S.C. § 921(a)(20)(A); see also

Dillard, 214 F.3d at 90. Still, many nonviolent crimes do not

involve the regulation of business practices and thus constitute

predicate felonies under § 922(g)(1). See Lane, 252 F.3d at 906

(“Most felonies after all are not violent . . . .”); Johnson, 399

F.3d at 1300 (“[N]ot all felons are potentially more violent than

non-felons.”). 

Third, even assuming that most felons are “dangerous

when armed” and that felon in possession of a firearm is “[a]

crime that increases the likelihood of a crime of violence,” that
7

does not mean that possession of a firearm is itself a crime of

violence. Lane, 252 F.3d at 907. As the Seventh Circuit has

explained, felons who possess firearms “may end up committing

another, and violent, offense, such as robbing a bank at gunpoint,

but that doesn’t make the possession offense violent.” Id.

Fourth, even if a § 922(g)(1) offense is not considered a

crime of violence, the government can detain defendants in §

922(g)(1) cases in a range of circumstances. Singleton, 182 F.3d

at 15. Specifically, the government is entitled to a detention

hearing if a § 922(g)(1) defendant has two prior predicate felony

convictions, or is likely to flee or obstruct justice. Id. at 15

(citing 18 U.S.C. §§ 3142(f)(1)(D), (f)(2)(A) & (f)(2)(B)); see

also Johnson, 399 F.3d at 1300 (“[I]nterpreting § 3142(f)(1) to

exclude felon-in-possession would not deprive the government

of an opportunity to detain armed felons when circumstances

warrant detention.”) (citing Singleton, 182 F.3d at 15).

Finally, the Sentencing Commission has interpreted

U.S.S.G. 4b1.2(a), a provision of the Sentencing Guidelines

governing “crime[s] of violence,” to exclude § 922(g)(1)

offenses. U.S.S.G. 4b1.2 appl. note 1 (“‘Crime of violence’ does

not include the offense of unlawful possession of a firearm by a

felon, unless the possession was of a firearm described in 26

U.S.C. § 5845(a) [(listing particularly lethal types of

firearms)].”); Singleton, 182 F.3d at 15-16. Section 3142(g) and

U.S.S.G. 4b1.2(a) are analogous in that both require a Court to

“parse violent from non-violent defendants.” Singleton, 182

F.3d at 16. While the Sentencing Commission’s Application

Notes do not control judicial interpretation of § 3142(g), they do

offer persuasive authority. Id. at 16. As we have stated,

“interpretation of ‘crime of violence’ under the Sentencing

Guidelines should bear upon the meaning of the term in other

settings as well.” Royce v. Hahn, 151 F.3d at 124. 

Only one Court has held that a § 922(g)(1) offense is a

crime of violence under § 3156(a)(4)(B). In Dillard, a divided

panel of the Second Circuit rejected the D.C. Circuit’s reasoning

in Singleton. See 214 F.3d at 89. However, we find Dillard’s

reasoning unpersuasive, and we therefore join the Seventh and

Eleventh Circuits, both of which followed Singleton after

considering and rejecting Dillard’s holding. Lane, 252 F.3d at

907; Johnson, 399 F.3d at 1299-1300. 
8

Dillard relies largely on legislative history to conclude

that felon in possession is “a felony and that, by its nature,

involves a substantial risk” of violence under 18 U.S.C. §

3156(a)(4)(B). Dillard, 214 F.3d 94-96. We consider this foray

into legislative history unnecessary, because the plain meaning

of the statute is clear. See United States v. Gonzales, 520 U.S. 1,

6 (1997) (“Given the straightforward statutory command, there

is no reason to resort to legislative history.”) (citing Connecticut

Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)).

“Substantial” is defined as “having a solid or firm

foundation: soundly based: carrying weight.” Webster’s Third

New International Dictionary 2280 (3d ed. 1966). As noted

above, a felon may put a gun to any number of nonviolent uses,

or a felon may own a gun but have no intention of using it at all.

Thus, the risk that possession of a firearm by a felon will use a

firearm violently is not “soundly based.” On the contrary, we

would describe the conclusion that the firearm will be used

violently as speculative or hasty, which we consider to be

antonyms of “soundly based.” We agree with the Second Circuit

that § 3156(a)(4)(B) “speaks to offenses that give rise to a

possibility, rather than a certainty, that force may be used” and

that “[f]orce need not be . . . inevitable.” Dillard, 214 F.3d at

92. But the possibility of force must be “soundly based,” not

speculative. 

At all events, the legislative history unearthed by the

Second Circuit is unilluminating. The Bail Reform Act of 1984

gave District Courts the authority to detain dangerous

defendants; unsurprisingly, its legislative history reveals that

Congress was concerned with the dangers some defendants

posed to community safety. Dillard, 214 F.3d at 95 (citing

S.Rep. No. 98-225, at 5 (1983), reprinted in 1984 U.S.C.C.A.N.

3182, 3188 (report of the Senate Judiciary Committee on the

Bail Reform Act of 1984)). But this general concern is hardly

specific enough to permit the inference that Congress viewed

felon in possession of a firearm as a crime of violence. 

Dillard also cites a statement by the sponsor of the

predecessor to § 922(g)(1), but as the Supreme Court has stated,

“ordinarily even the contemporaneous remarks of a single

legislator who sponsors a bill are not controlling in analyzing

legislative history.” Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 118 (1980). We also question the
2

 Section 924(c)(3) provides:

For purposes of this subsection the term “crime of

violence” means an offense that is a felony and--

(A) has as an element the use,

attempted use, or threatened use of

physical force against the person or

property of another, or

(B) that by its nature, involves a

substantial risk that physical force

against the person or property of

another may be used in the course of

committing the offense.

18 U.S.C. § 924(c)(3).

9

Second Circuit’s view that the legislative history of § 922(g)(1)

sheds light on the meaning of “crime of violence” under 18

U.S.C. § 3156(a)(4). That, needless to say, is a separate statute

with a separate legislative history. 

Even if we were persuaded by the Second Circuit’s

reasoning, the opinion of this Court in Royce v. Hahn, 151 F.3d

116 (3d Cir. 1998), would prevent us from following it. In

Royce, we held that § 922(g) is not a crime of violence under 18

U.S.C. § 4042(b), a statute that requires the Bureau of Prisons to

notify local law enforcement authorities before releasing certain

inmates. Id. at 117. For purposes of § 4042(b)(3)(B), “a crime

of violence” is defined by 18 U.S.C. § 924(c)(3), which is

virtually identical to § 3156(a)(4), the relevant provision in this

case.2

 In fact, the operative language in § 924(c)(3)(B) is the

verbatim equivalent of § 3156(a)(4)(B). Both provisions define

“crime of violence” as an offense “that by its nature, involves a

substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.”

18 U.S.C. §§ 924(c)(3)(B) and 3156(a)(4)(B). In Royce, we

surveyed other statutes that use the term “crime of violence,”

and we emphasized that “there is much to be said for attributing
10

the same meaning to the same or related words.” Id. at 124

(citation omitted). In keeping with this sensible observation, we

hold, consistent with Royce, that § 922(g)(1) does not describe a

“crime of violence” under § 3156(a)(4). 

Thus, we join the District of Columbia, Seventh, and

Eleventh Circuits, and we reject the view of the Second Circuit. 

Felon in possession does not “involve[] a substantial risk” of

violence, 18 U.S.C. § 3156(a)(4)(B), and there is not “a direct

relationship between the offense and a risk of violence,”

Singleton, 182 F.3d at 14. This conclusion both reflects the

majority view of our sister Circuits and flows naturally from our

own jurisprudence. In short, we are unwilling to infer that a

felon will use a gun violently merely because he owns it.

While we vacate the order of the District Court, we do not

hold that Bowers must be released pending trial. Although we

hold that Bowers is not charged with a crime of violence, §

3142(f) lists other grounds for holding a detention hearing,

including a risk that the defendant will flee. Likewise, § 3142(g)

lists a number of other factors that a District Court must consider

in deciding whether to release a defendant. Thus, we remand the

case for the District Court to determine, in spite of our holding

that Bowers is not charged with a crime of violence, whether the

detention hearing was required under § 3142(f), and whether

detention is required under the § 3142(g) factors.