U.S. v. Allen

• Decision Date: 13 January 2006
• Docket Number: No. CRIM. AMD-04-0220.,CRIM. AMD-04-0220.
• Citation: 409 F.Supp.2d 622
• Parties: UNITED STATES of America v. Clifford ALLEN Defendant.
• Court: U.S. District Court — District of Maryland

409 F.Supp.2d 622

UNITED STATES of America v. Clifford ALLEN Defendant.

No. CRIM. AMD-04-0220.

United States District Court, D. Maryland.

January 13, 2006.

John Francis Purcell, Jr., Office of the United States Attorney, Baltimore, MD, Thomas M. Dibiagio, Beveridge and Diamond PC, Washington, DC, for United States of America.

MEMORANDUM OPINION

GAUVEY, United States Magistrate Judge.

I. Overview

Clifford ("Jerome") Allen, a convicted felon, is charged in a single count indictment for possession of a firearm after being convicted of an offense punishable by a term of imprisonment exceeding one year, pursuant to 18 U.S.C. § 922(g). Allen seeks pretrial release, but the Court concludes that his felon-in-possession offense constitutes a crime of violence for purposes of the Bail Reform Act, 18 U.S.C. § 3141 et seq., and the defendant should be detained.

II. Procedural and Factual Background

A grand jury indicted the defendant on April 22, 2004. At his initial appearance on July 28, 2004, the government moved for detention on the grounds of dangerousness and risk of flight. The government initially argued that the defendant was eligible for detention pursuant to 18 U.S.C. § 3142(f)(1)(D), applicable if a defendant had been convicted of two or more violent crimes or offenses for which the maximum sentence is life imprisonment or death, and 18 U.S.C. § 3142(f)(2), applicable if a defendant poses a risk of flight or risk of obstructing justice, threatening, or injuring witnesses. On August 11, 2004, the Court concluded upon review of the defendant's criminal history in the Pretrial Services Report that he was not eligible for detention pursuant to 18 U.S.C. § 3142(f)(1)(D) because the defendant had only one prior "offense" rather than the two offenses required by law. See United States v. Selby, 333 F.Supp.2d 367 (D.Md.2004)(holding that predicate convictions must arise from separate criminal episodes in order for a defendant to be detained on grounds of dangerousness).

At a subsequent hearing conducted on August 13, 2004, the question arose as to whether the felon-in-possession charge would make the defendant eligible for detention under 18 U.S.C. § 3142(f)(1)(A), which permits a judge to hold a detention hearing when a crime of violence is involved. The Court held this legal question sub curia, and went forward with the detention hearing. The Court reviewed the defendant's criminal history and heard testimony about the circumstances leading to his present arrest. In 1999, Allen was convicted in the Circuit Court of Baltimore City of two felonies: first degree assault and unlawful use of a handgun in the commission of a crime. The court handed down a twenty-year suspended sentence for which the defendant was to serve three years probation for each charge. His criminal record provides that he has incurred several parole violations including not obtaining employment, failing to report as directed, and being arrested on several occasions. Records state that Allen's parole case was closed at a parole violation hearing on July 23, 2004.

On October 31, 2003, two officers of the Baltimore City Police were on routine patrol in the 1500 block of North Montford Avenue. They observed three males who appeared to be fighting near an alleyway entrance. Upon arriving closer to the area, the officers observed one male, later identified as the defendant Allen, grasping the collar of a second unknown male. A second man was kneeling on the ground, and Allen was pointing a black handgun at the individual's head.

Upon viewing the situation, one of the officers exited the patrol car and chased Allen through the alley. Allen discarded the gun there, which was later recovered and found to be fully loaded and with an obliterated serial number. Allen was later apprehended while attempting to flee in a getaway vehicle.

Based on Allen's possession of a firearm after having been previously convicted of a felony, this Court concludes that the offense at issue constitutes a crime of violence for purposes of the Bail Reform Act and requires a detention hearing for consideration of Allen's individual circumstances. The Court determines that no set of conditions exist to assure the safety of the community, and accordingly detains Allen. The defendant then moved for review of the pretrial detention order, which was affirmed by the Honorable Andre M. Davis.

III. Analysis

There is a split among the circuits over whether a felon-in-possession of a firearm is a "crime of violence" under the Bail Reform Act. The Fourth Circuit has not yet ruled on the question. The Court of Appeals for the Second Circuit and a substantial number of district courts have found that felony possession is a crime of violence. See United States v. Dillard, 214 F.3d 88, 92-3 (2d Cir.2000); United States v. Powers, 318 F.Supp.2d 339, 342 (W.D.Va.2004); United States v. Spry, 76 F.Supp.2d 719, 722 (S.D.W.Va.1999); United States v. Chappelle, 51 F.Supp.2d 703, 704 (E.D.Va.1999); United States v. Aiken, 775 F.Supp. 855, 856-7 (D.Md.1991);; United States v. Lee, 156 F.Supp.2d 620, 624 (E.D.La.2001); United States v. Jones, 651 F.Supp. 1309, 1310 (E.D.Mich.1987)¹; United States v. Shirley, 189 F.Supp.2d 966, 968-9 (W.D.Mo.2002). See also United States v. Rogers, 371 F.3d 1225, 1228 (10th Cir.2004)(possession of a firearm following a misdemeanor conviction of domestic violation is a "crime of violence" under the Bail Reform Act).

However, five circuits now have reached the opposite conclusion, holding that a felon on in possession of a handgun is not a crime of violence. See United States v. Bowers, 432 F.3d 518 (3d Cir.2005); United States v. Johnson, 399 F.3d 1297, 1302 (11th Cir.2005); United States v. Twine, 344 F.3d 987, 987-8 (9th Cir.2003); United States v. Lane, 252 F.3d 905, 908 (7th Cir.2001); United States v. Singleton, 182 F.3d 7, 16 (D.C.Cir.1999). See also United States v. Silva, 133 F.Supp.2d 104, 113 (D.Mass.2001). But see United States v. Phillips, 732 F.Supp. 255 (D.Mass.1990) (offense of being a felon in possession of a firearm is, by its nature, a crime of violence).²

Even within this district, a split seemingly exists as to the nature of the felon-in-possession offense. Compare Aiken, 775 F.Supp. at 856-7 (holding felon-in-possession of a firearm is a "crime of violence"), with United States v. Flood, No. 97-0479 (D.Md. January 21, 1998)(stating that Aiken was not good law and would not be followed).

A. The Bail Reform Act and the Felon-in-Possession Statute

The Bail Reform Act of 1984 ("Act"), 18 U.S.C. § 3141 et seq., authorizes a court to order a defendant's detention pending trial in certain circumstances if "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community...." 18 U.S.C. § 3142(e).

The Government may move for pretrial detention under § 3142(e) if it satisfies at least one of the six categories listed in § 3142(f).³ United States v. Byrd, 969 F.2d 106, 109 (5th Cir.1992). Of the enumerated circumstances in which the government may make a motion to seek detention is where the case "involves a crime of violence...." 18 U.S.C. § 3142(f)(1)(A). While the Act defines "crime of violence," it does not specifically identify all those federal crimes that fit within the statutory definition.⁴

In fact, the Act defines "crime of violence" alternatively. The first definition addresses crimes with a direct relationship to the use of force, insofar as it covers any "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." 18 U.S.C. § 3156(a)(4)(A). This denotation requires a direct nexus between the use of force and the charged offense.

Felon-in-possession of a firearm is instead a status offense that does not necessarily involve the outright use of force.⁵ The second definition of "crime of violence" is therefore more relevant: "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." Id. § 3156(a)(4)(B). From the language alone, the second definition is noticeably broader than the first, as it does not require force as a necessary element of the charged offense.

B. Precedent in this Court

In 1991, the district court (District Judge Herbert Murray) considered whether a felon in possession of a firearm constituted a crime of violence so as to require a pretrial detention hearing. Aiken, 775 F.Supp. at 855. At the time, the issue was of first impression within the Fourth Circuit. Id. The court began by analyzing the words "by its nature" in section 3142(f) to determine whether an offense involves a "substantial risk" of the use of physical force against a person or their property. Id. at 856. The court adopted a categorical approach and concluded that it could examine only the "intrinsic nature of the offenses and not the actual conduct of the individual." Id.

The Aiken court, recognizing other cases that remarked on the inherent dangerousness of a felon who was in possession of a firearm, concluded that such a person posed an "increased risk ... to use a firearm already in his possession to commit another crime." Id. at 856-57. Aiken emphasized the proclivity of a felon to use a firearm for criminal purposes, such that these individuals pose a "substantial risk" of force being used against another. The court found as a matter of law that felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) constituted a "crime of violence" for purposes of holding a detention hearing. Id. at 857.

On the same date that Aiken was decided, the Fourth Circuit heard oral arguments in United States v. Johnson, 953 F.2d 110 (4th Cir.1991). In that case, the court considered whether the offense of felon in...