United States v. Ingle ( 2006 )


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  •                                     PUBLISH
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT
    U N ITED STA TES O F A M ER ICA,
    Plaintiff-Appellee,
    v.                                                         No. 06-5091
    DU STIN LEROY ING LE,
    Defendant-Appellant.
    OR DER
    Filed July 18, 2006
    Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.
    On the Court’s own motion, the Order and Judgment filed July 5, 2006, will
    be published. The published opinion, filed nunc pro tunc to July 5, is attached.
    Entered for the Court
    Elisabeth A . Shumaker, Clerk
    By:
    Deputy Clerk
    F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    July 5, 2006
    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    U N ITED STA TES O F A M ER ICA,
    Plaintiff-Appellee,
    v.                                                  No. 06-5091
    DU STIN LEROY ING LE,
    Defendant-Appellant.
    A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
    FO R TH E NO RTH ERN DISTRICT O F O K LAH O M A
    (D .C. No. 05-CR-119-EA)
    Submitted on the briefs: *
    Paul D. Brunton, Federal Public Defender, Julia L. O’Connell, Assistant Federal
    Public Defender, Office of the Federal Public Defender, Tulsa, Oklahoma, for
    Defendant-Appellant.
    David E. O’M eilia, United States Attorney, Northern District of Oklahoma,
    Timothy L. Faerber, Assistant United States Attorney, Northern District of
    Oklahoma, and Richard A. Friedman, Appellate Section, Criminal Division,
    United States Department of Justice, W ashington, D.C., for Plaintiff-Appellee.
    Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    M U RPH Y, Circuit Judge.
    I.     Introduction
    W hen appellant Dustin Leroy Ingle entered a plea of guilty to the offense
    of being a felon in possession of a firearm, in violation of 
    18 U.S.C. § 922
    (g)(1),
    the district court determined he must be detained pending sentencing. According
    to the district court, the offense is a “crime of violence” as the term is used in the
    Bail Reform Act of 1984, 
    18 U.S.C. §§ 3141-56
    , and M r. Ingle’s detention
    pending sentencing was mandatory under § 3143(a)(2).
    M r. Ingle challenges the district court’s detention order in this appeal
    pursuant to Rule 9 of the Federal Rules of Appellate Procedure. Upon
    consideration of the parties’ briefs and submissions, we conclude that a violation
    of § 922(g)(1) is not a crime of violence under the statutory definition. W e
    therefore reverse the district court’s order and remand for further proceedings
    consistent with this opinion.
    II.   Background
    A grand jury charged M r. Ingle with being a felon in possession of firearms
    and ammunition, in violation of 
    18 U.S.C. § 922
    (g)(1). The indictment alleged
    that M r. Ingle previously had been convicted of an Oklahoma felony offense of
    unlawful possession of a controlled drug. After his initial appearance before the
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    magistrate judge on M arch 6, 2006, he was released on an unsecured $10,000 bond
    under the supervision of the United States Probation Office.
    M r. Ingle entered a plea of guilty to the charge, without a plea agreement,
    on April 7, 2006. 1 At his plea hearing, the district court determined that “based on
    [its] analysis of section 3143(a)(2), [M r. Ingle] must be detained immediately.”
    Aplt. App. at 72. Defense counsel made a brief argument against the district
    court’s determination, 
    id. at 71
    ; government counsel did not comm ent on the issue,
    
    id. at 71-73
    . The court indicated its desire for an appeal of the ruling to this court
    because it “would like nothing more than guidance on this issue.” 
    Id.
     The court
    denied M r. Ingle’s later request for a stay of the detention order. M r. Ingle
    appealed the district court’s order.
    III.   Analysis
    M r. Ingle’s appeal presents a single legal question: whether the offense of
    being a felon in possession of a firearm, in violation of 18 U .S.C. § 922(g)(1), is a
    “crime of violence” as that term is defined in 
    18 U.S.C. § 3156
    (a)(4)(B) of the
    Bail Reform Act (“the Act”). “This is a question of the construction and
    applicability of a federal statute that we review de novo.” United States v. Rogers,
    
    371 F.3d 1225
    , 1227 (10th Cir. 2004) (quotation omitted).
    1
    The government’s brief states that M r. Ingle pleaded guilty pursuant to a
    plea agreement. Aplee. Br. at 3. This statement is contrary to M r. Ingle’s
    Petition to Enter Plea of Guilty, Aplt. App. at 14, and his affirmations during the
    plea hearing, id. at 50-51.
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    A.     Consequences under the Bail Reform Act
    Our decision has significant consequences under the provisions of the Act
    for 
    18 U.S.C. § 922
    (g)(1) defendants at different stages of the criminal justice
    process: awaiting trial, pending sentencing, and pending appeal. The Act
    contemplates varying levels of scrutiny for defendants as they proceed through the
    court system. See U nited States v. Kills Enemy, 
    3 F.3d 1201
    , 1203 (8th Cir. 1993)
    (contrasting pretrial releasees with convicted persons awaiting sentence, and
    noting that the latter are “no longer entitled to a presumption of innocence or
    presumptively entitled to [their] freedom”). Nevertheless, a defendant charged
    with a crime of violence must meet a heightened standard at each level.
    Generally, the Act allows the detention of a defendant “pending trial only if
    a judicial officer finds ‘that no condition or combination of conditions w ill
    reasonably assure the appearance of the person as required and the safety of any
    other person and the community.’” United States v. Cisneros, 
    328 F.3d 610
    , 616
    (10th Cir. 2003) (quoting 
    18 U.S.C. § 3142
    (e)). W hen a crime of violence is
    involved, however, a judicial officer must hold a hearing on motion of the
    government to determine if any conditions would permit the safe release of the
    charged defendant. § 3142(f)(1)(A).
    Pending sentencing, the presumption is that a defendant w ill be detained.
    M ost defendants, however, may be released upon a showing “by clear and
    convincing evidence that the person is not likely to flee or pose a danger to the
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    safety of any other person or the community.” 
    18 U.S.C. § 3143
    (a)(1). In
    contrast, a defendant who has been found guilty of a crime of violence and who is
    awaiting imposition or execution of sentence is to be “detained unless . . . there is
    a substantial likelihood that a motion for acquittal or new trial will be granted;
    or . . . an attorney for the Government has recommended that no sentence of
    imprisonment be imposed on the person,” and there is “clear and convincing
    evidence that the person is not likely to flee or pose a danger to any other person
    or the community.” § 3143(a)(2).
    Pending appeal, bail for most defendants must “be denied unless the court
    finds that the appeal ‘raises a substantial question of law or fact likely to result in
    reversal or an order for a new trial.’” United States v. Affleck, 
    765 F.2d 944
    , 952
    (10th Cir. 1985) (quoting 
    18 U.S.C. § 3143
    (b)(2)). The provision applicable to a
    defendant found guilty of a crime of violence and sentenced to a term of
    imprisonment states simply “[t]he judicial officer shall order that [the
    defendant] . . . be detained.” § 3143(b)(2).
    B.     Classification of § 922(g)(1)
    Our prior case law has narrowed our task of deciding the appropriate
    classification of 
    18 U.S.C. § 922
    (g)(1); it has set out the proper analytic
    framework and resolved several essential issues. Section 922(g)(1) makes it
    unlawful for a person previously convicted of a felony to possess a firearm or
    ammunition. See United States v. Colonna, 
    360 F.3d 1169
    , 1178 (10th Cir. 2004).
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    This offense is a crime of violence for purposes of the Act if it is an “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.” 
    18 U.S.C. § 3156
    (a)(4)(B). 2 W e use a categorical approach to
    identify a crime of violence. Rogers, 
    371 F.3d at
    1228 n.5. In other words, the
    court does not consider the “particular circumstances surrounding” the defendant’s
    alleged violation. 
    Id.
     The court looks at the “generic” offense, “not the
    underlying circumstances.” 
    Id.
     (quotation omitted). Thus, the question is
    whether the felon-in-possession offense, as a whole, should be considered a
    crime of violence.
    Under 
    18 U.S.C. § 3156
    (a)(4)(B), the elements of a “crime of violence” 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 offense;
    (iv) the risk must be that the use of physical force would occur in the
    course of the offense; and
    2
    The definition of “crime of violence” in 
    18 U.S.C. § 3156
    (a)(4) includes
    two other types of offenses: an “offense that has as an element . . . the use,
    attempted use, or threatened use of physical force against the person or property
    of another,” see § 3156(a)(4)(A ); and a sexual exploitation offense falling within
    three specified chapters of Title 18, United States Code, § 3156(a)(4)(C).
    Because an unlawful possession of a firearm does not fit within these definitions,
    see § 3156(a)(4)(B), there is no need to discuss them. See Rogers, 
    371 F.3d at 1228
    .
    -6-
    (v) the risk must be substantial.
    Id. at n.4 (quotation omitted). The existence of three of elements is incontestible.
    Unquestionably, the offense is a felony. See 
    18 U.S.C. § 3156
    (a)(3) (defining
    “felony” as an offense punishable by a maximum term of imprisonment of more
    than one year); 
    id.
     § 924(a)(2) (providing for imprisonment of up to ten years for a
    violation of § 922(g)). Also, a felon in possession of a gun presents some risk of
    physical force being used against another. See Rogers, 
    371 F.3d at 1229
    ; see also
    United States v. Lane, 
    252 F.3d 905
    , 906 (7th Cir. 2001) (“A person who has been
    convicted of committing a felony . . . is no doubt more likely to make an illegal
    use of a firearm than a nonfelon, and the illegal use is likely to involve violence.
    Otherwise it would be a little difficult to see why being a felon in possession of a
    firearm is a crime.”); United States v. Dillard, 
    214 F.3d 88
    , 93 (2d Cir. 2000)
    (possession of a gun greatly increases one’s ability to inflict harm on others and
    therefore involves some risk of violence). M oreover, we have previously
    recognized that “[if] one uses a gun in an act of violence, that violence necessarily
    occurs during the possession of the gun.” Rogers, 
    371 F.3d at 1230
     (quotation
    omitted). Thus, a “risk of physical force created by the [illegal] possession of
    a firearm . . . occurs in ‘the course of committing’ the weapon-offense.” 
    Id.
    Accordingly, we need to consider only two elements: whether the risk
    results from the categorical nature of the offense and whether the risk is
    substantial. This court has not reached these two questions in the context of a
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    § 922(g)(1) offense. In Rogers, we decided that possession of a firearm while
    subject to a protection order and possession of a firearm following misdemeanor
    conviction of domestic violence are “crimes of violence” for purposes of the Bail
    Reform Act. Id. at 1230. But we explicitly limited our discussion to the offenses
    before us in that case and declined to resolve the issues in relation to possession of
    a firearm by a convicted felon. Id. “This differing context is key.” Id. at 1229.
    Nevertheless, we have ample guidance on the issues. M any other
    circuit courts have provided thoughtful discussions on the nature of the
    felon-in-possession offense and the substantiality of the risk. The majority of
    these courts have determined that a § 922(g)(1) offense does not satisfy these
    elements. See United States v. Bowers, 
    432 F.3d 518
    , 524 (3d Cir. 2005); United
    States v. Johnson, 
    399 F.3d 1297
    , 1302 (11th Cir. 2005) (per curiam); United
    States v. Twine, 
    344 F.3d 987
    , 987-88 (9th Cir. 2003) (per curiam); Lane, 
    252 F.3d at 906-08
    ; United States v. Singleton, 
    182 F.3d 7
    , 16 (D .C. Cir. 1999). See also
    United States v. Hardon, No. 98-1625, 1998 W L 320945, at *1 (6th Cir. June 4,
    1998) (unpublished). The Second Circuit has held to the contrary. See Dillard,
    
    214 F.3d at 104
    . W e are persuaded by the rationale of the majority position.
    Concerning the categorical nature of the crime, it is apparent that
    § 922(g)(1) offenses present “numerous factual scenarios.” Johnson, 
    399 F.3d at 1301
    . The offense applies to persons with greatly diverse propensities and
    previously convicted of a wide range of conduct. “[N]ot all felons are potentially
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    more violent than non-felons. Numerous felonies involve economic crimes or
    regulatory offenses which, while serious, do not entail a substantial risk of
    physical force.” Singleton, 
    182 F.3d at 15
    . “[A]nd ex-felons have the same
    motives as lawful possessors of firearms to possess a firearm–self-defense,
    hunting, gun collecting, and target practice.” Lane, 
    252 F.3d at 906
    . Accordingly,
    we conclude that a felon-in-possession offense under § 922(g)(1) is not inherently
    a crime of violence.
    For coinciding reasons, we also decide that
    the mere 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. . . . [L]arge numbers of felonies involve
    economic, regulatory, or other crimes that do not entail physical
    violence at all. Thus . . . although there might be some increased
    chance of violence flowing from the possession of a weapon by a
    felon, that risk could simply not be classified as substantial.
    Rogers, 
    371 F.3d at 1229
     (citations omitted) (explaining the reasoning of the
    Singleton and Lane decisions).
    W e acknowledge the frustration of the district court in its comment that
    “[t]he broad coverage of 
    18 U.S.C. § 922
    (g)(1)–including both violent and
    non-violent felons–probably makes the most correct answer to the question of
    whether commission of the offense constitutes a crime of violence not ‘yes’ or
    ‘no,’ but ‘sometimes.’” United States v. Green, 
    414 F. Supp. 2d 1029
    , 1035
    (N.D. Okla. 2006) (referenced in the court’s ruling in the instant case). Yet
    under the structure of the Bail Reform Act and established case law, “either
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    felon-in-possession is a crime of violence or it is not.” Nicole J. Bredefeld, Note,
    The Bail Reform Act of 1984 and Felons who Possess Weapons: Discrepancy
    Among the Federal Courts, 
    26 Seton Hall Legis. J. 215
    , 233 (2001) (quotation
    omitted).
    W e hold that a § 922(g)(1) offense is not a crime of violence for purposes of
    the Act because the nature of the offense does not involve a substantial risk of
    physical force used against the person or property of another. As applied to
    M r. Ingle, this means that he is eligible for bail pending sentencing if a judicial
    officer concludes there is clear and convincing evidence that he “is not likely to
    flee or pose a danger to the safety of any other person or the community.”
    
    18 U.S.C. § 3143
    (a)(1).
    IV.   Conclusion
    Having rejected the premise of the district court’s order, this court
    REVERSES the decision of the district court and REM ANDS the matter to the
    district court for further proceedings consistent with this opinion.
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