U.S. v. Rogers, No. 03-4153.

• Decision Date: 15 June 2004
• Docket Number: No. 03-4153.
• Citation: 371 F.3d 1225
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Charles ROGERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1225

371 F.3d 1225

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Charles ROGERS, Defendant-Appellee.

No. 03-4153.

United States Court of Appeals, Tenth Circuit.

June 15, 2004.

Barbara Bearnson, Assistant United States Attorney, District of Utah (Paul M. Warner, United States Attorney, District of Utah, with her on the brief), Salt Lake City, UT, for Plaintiff/Appellant.

Michael J. Boyle, Boyle & Drage, P.C., Ogden, UT, for Defendant/Appellee.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.

MURPHY, Circuit Judge.

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 defendant-appellee, Kenneth Rogers, should be detained pending trial on charges of possession of a firearm while subject to a protection order, in violation of 18 U.S.C. § 922(g)(8), and possession of a firearm following a misdemeanor conviction of domestic violence, in violation of 18 U.S.C. § 922(g)(9). According to 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 parties' 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 detention 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 it made following the detention hearing¹ and to order Rogers detained pending trial.

II. BACKGROUND

Rogers was indicted by a federal grand jury for possession of a firearm while subject to a protection order, in violation of 18 U.S.C. § 922(g)(8), and possession of a firearm following a misdemeanor conviction of domestic violence, in violation of 18 U.S.C. § 922(g)(9). At the government'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 the parties presented at the detention hearing, a magistrate judge ordered Rogers detained pending trial. The magistrate judge specifically found that there was "a serious risk that the defendant will endanger the safety of another person or the community" based on Rogers' outstanding domestic protective orders.

After Rogers filed an objection to the magistrate judge's detention order, the district court held a hearing on the matter. In 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 is clear and convincing evidence that a defendant should be detained. In this case, the Court finds, consistent with [the magistrate judge's] findings, that there exists clear and convincing evidence that the defendant is a danger to a person or to the community, and should be detained. Id.

In determining whether to detain a defendant, the Bail Reform Act directs a court to consider, inter alia, the nature of the instant charged offense, the weight of the evidence against the defendant, and the defendant's history and characteristics. 18 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 defendant has had four separate protective orders arising out of domestic violence situations, by four different women. Three of those protective orders are still active. The defendant was convicted of domestic violence in 2002. The Court is concerned about the safety of the women who found it necessary to obtain the protective orders and is alarmed by the continued pattern of violence on the part of the defendant.

Having reviewed the [magistrate judge's] detention order de novo, the Court finds that there is clear and convincing evidence that the defendant is a danger to a person or to the community and should be detained....

Shortly thereafter, Rogers moved for further review of the detention order. In his motion, Rogers asserted that the district court had erred in holding a detention hearing in the first instance because none of the six conditions precedent set out in § 3142(f)(1) and (2) to the holding of such a hearing were present in this case.² In response, the government asserted that the district court 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 the weapon-possession crimes set out in Rogers' indictment were "crime[s] of violence" 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 a misdemeanor conviction of domestic violence were "crime[s] of violence" for purposes of § 3142(f)(1)(A). Instead, the district court relied on the D.C. Circuit'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).

III. ANALYSIS

On appeal, the government contends the district court erred in concluding that possession of a firearm while subject to a domestic protection order and possession of a firearm following a misdemeanor conviction 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 a federal 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 provides 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 Reform Act defines "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). It is uncontested that the crimes at issue here do not fit within the definitions of "crime of violence" set out 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 possession of a firearm following a misdemeanor conviction of domestic violence are felonies that by their very nature involve a substantial risk that physical force may be used against the person or property of another in the course of committing the offense. Id. § 3156(a)(4)(B).⁴

It is clear that each of the crimes at issue here is 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 subsection... (g) ... of section 922 shall be ... imprisoned not more than ten years").

We likewise conclude that possession of a firearm while subject to a domestic protection order and possession of a firearm following a misdemeanor conviction of domestic violence both involve a substantial risk, resulting from the nature of the offense,⁵ that physical force may be used against the person or property of another. "[I]t [is] 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." Dillard, 214 F.3d at 93. This is particularly true with regard to the crimes at issue in this case. A defendant whose background includes domestic violence which advances to either a criminal conviction or the imposition of a protection order has a demonstrated propensity 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 threatened use of a deadly weapon"); id. § 922(g)(8) (defining a protection order as an order 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 threat to the physical safety" of an intimate partner or "explicitly" restrains the person 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 protection 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 domestic violence offenses reflect a propensity to inflict bodily harm upon others" was rational).

"The dangerousness of guns and their adaptability to use in violent crime is why Congress has prohibited their possession" by individuals subject to a domestic protection order or convicted of a...