Tuesday, March 8, 2011

CONVICTION OF USER OR ADDICT IN POSSESSION OF A FIREARM DOES NOT REQUIRE ONE TO BE DETAINED AFTER PLEA OR VERDICT OF GUILTY

by
Mark D. Hosken, Supervisory - Assistant Federal Public Defender, WDNY

A defendant enters a guilty plea or is found guilty after trial of being a user or addict in possession of a firearm in violation of 18 U.S.C. §922(g)(3). The prosecutor moves the Court to remand the individual into custody pending sentencing. The government contends 18 U.S.C. § 3143(2) requires such detention as such possession is a crime of violence under 18 U.S.C. § 3142(f)(1)(A). You recall something about felon in possession [18 U.S.C. § 922(g)(1)] being a crime of violence, but you can’t remember anything about an addict in possession meeting that definition. You are correct. It hasn’t been found to be a crime of violence in the Circuit. Thus, the mandatory remand provision is inapplicable to one convicted of 18 U.S.C. § 922(g)(3).

The Bail Reform Act in 18 U.S.C. § 3143(a)(2) normally requires the defendant’s remand into custody at the time of plea. That necessitates a finding that one was convicted of an offense described in § 3142(f)(1)(A), (B), or (C). Subsection (A) is the one that is most applicable. That includes those offenses designated as a “crime of violence.” “Crime of violence” is defined in 18 U.S.C. § 3156(a)(4). Again, the most applicable sections would be subsections (A) & (B) to § 3156(a)(4).

In United States v. Dillard, 214 F.3d 88 (2d Cir. 2000), a panel of the Second Circuit held that felon in possession of a firearm [18 U.S.C. § 922(g)(1)] is a crime of violence for purposes of the Bail Reform Act. Such conclusion would normally require the Court to remand the defendant into custody at the time of his plea of guilty to felon in possession of a firearm. However, the Second Circuit has not decided whether the separate offense of user or addict in possession of firearm is a crime of violence pursuant to § 3156(a)(4). The only decided case I could locate which held that user in possession of a firearm is a crime of violence is unpublished. It is United States v. Ditrapano, 2006 WL 1805848 (S.D.W.Va, 2006). Though Ditrapano held user or addict in possession to be a crime of violence, there was no analysis of the statute supporting the conclusion that user in possession of a firearm is a “crime of violence.” The district court simply relied on the Second Circuit’s rationale in the Dillard case. Such analysis does not logically apply to user in possession prosecutions. Most of the Dillard opinion was devoted to the ills of society (i.e., danger) by convicted felons having firearms. That is not usually present in the addict in possession case.

Congress amended the detention statute in 2006 as part of the Adam Walsh Act. A new subsection (E) was added to 18 U.S.C. § 3142(f)(1). It permits the government to move for detention in a case that involves “any felony that is not otherwise a crime of violence that involves a minor victim or that involves a possession or use of a firearm . . . .” This section was added to address the circuit split over whether a felon in possession charge was a crime of violence for purposes of the Bail Reform Act. The amended section includes the charge of user in possession of a firearm regardless if it is determined to be a crime of violence or not. Simply put, the government has a separate basis to seek detention for anyone charged with a felony firearm offense: § 3142(f)(1)(E).

18 U.S.C. § 3143(a)(2) requires the defendant’s remand into custody when convicted of certain offenses. That mandatory remand section only applies to those found guilty of offenses under § 3142(A), (B), or (C). Unless one is convicted of a crime of violence or another statutory crime under those subsections, he is not required to be detained upon plea or verdict. Here, it must be assumed that Congress meant what it said when it created § 3142(f)(1)(E). There is no reason that individuals convicted of those offenses in subsection (E) be mandatorily remanded. Those offenses identified in § 3142(f)(1)(E) are specifically excluded from those cited in the mandatory remand section [§ 3143(a)(2)].

An addict in possession of a firearm is not convicted of a crime of violence as defined under the Bail Reform Act. Thus, such conviction does not qualify as an offense requiring mandatory remand under 18 U.S.C. § 3143(a)(2). Assuming your client is not likely to flee or pose a danger to the safety of any other person or the community and the Court makes such finding, he should be continued on the previous conditions of release.

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