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.
The opinion of the court was delivered by: Becker, Circuit Judge.
Submitted on Motion for Bail Pursuant to FRAP 9(a) November 9, 2005
Before: RENDELL, AMBRO, and BECKER, Circuit Judges.
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
(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 ...