U.S. v. Johnson, 04-16502 Non-Argument Calendar.

• Decision Date: 14 February 2005
• Docket Number: No. 04-16502 Non-Argument Calendar.,04-16502 Non-Argument Calendar.
• Citation: 399 F.3d 1297
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cornelius JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

399 F.3d 1297

UNITED STATES of America, Plaintiff-Appellee, v. Cornelius JOHNSON, Defendant-Appellant.

No. 04-16502 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 14, 2005.

Frederick W. Tiemann and Carlos Alfredo Williams (Fed. Pub. Defenders), Fed. Def. Org., Mobile, AL, for Defendant-Appellant.

David Andrew Sigler, Mobile, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

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.

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:

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 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 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.

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 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, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (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...