UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

SINGLETON, CARLOS T.


99-3053a

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: The United States appeals from a  district court
order concluding that convicted felons who  possess firearms in
violation of 18 U.S.C. s 922(g) (1994) have  not by that act alone
committed a crime of violence warrant- ing pretrial detention. We
affirm, holding that the plain  meaning of the Bail Reform Act
excludes felon-in-possession  offenses from the category of violent
crimes that trigger  detention hearings.


I.


A one count indictment charges appellee Carlos Singleton  with
possession of a firearm by a convicted felon, in violation  of 18
U.S.C. s 922(g).1 After a hearing, a magistrate ordered  Singleton
detained pending trial because he was charged with  a crime of
violence, see 18 U.S.C. s 3142(f)(1)(A), and factors  enumerated in 18
U.S.C. s 3142(g) warranted detention rath- er than conditional
release. Relying on its previous decision  in United States v.
Gloster, 969 F. Supp. 92, 94-96 (D.D.C. 




__________

n 1 Section 922(g) provides in relevant part:


It shall be unlawful for any person ... who has been convicted  in any
court of, a crime punishable by imprisonment for a term  exceeding one
year ... to ... possess in or affecting interstate  commerce, any
firearm or ammunition.  18 U.S.C. s 922(g). 1997), the district court
concluded that a felon-in-possession  offense under s 922(g) is not a
crime of violence authorizing  pretrial detention, and therefore
conditionally released Sin- gleton pending trial. The United States
sought an emergen- cy stay of the order in this court, which the court
denied.  This appeal followed. See 18 U.S.C. ss 3145(c), 3731.


Under the Bail Reform Act, 18 U.S.C. s 3141 et seq., a  person awaiting
trial on a federal offense may either be  released on personal
recognizance or bond, conditionally re- leased, or detained. See 18
U.S.C. s 3142(a). The Act  establishes procedures for each form of
release, as well as for  temporary and pretrial detention. Detention
until trial is  relatively difficult to impose. First, a judicial
officer must  find one of six circumstances triggering a detention
hearing.  See 18 U.S.C. s 3142(f). Absent one of these circumstances, 
detention is not an option. See, e.g., United States v. Ploof,  851
F.2d 7, 11 (1st Cir. 1988). Second, assuming a hearing is 
appropriate, the judicial officer must consider several enu- merated
factors to determine whether conditions short of  detention will
"reasonably assure the appearance of the per- son as required and the
safety of any other person and the  community." 18 U.S.C. s 3142(g).
The judicial officer may  order detention if these factors weigh


The s 3142(g) factors are not at issue in the instant appeal,  and only
one of the triggering circumstances is relevant.  Specifically, the
government contends, and Singleton dis- putes, that a
felon-in-possession charge under s 922(g) alleg- es a "crime of
violence," which under s 3142(f)(1)(A) triggers  a detention




__________

n 2 Section 3142(f) provides in part that:


The judicial officer shall hold a hearing to determine whether  any
condition or combination of conditions set forth in subsec- tion (c)
of this section will reasonably assure the appearance of  the person
as required and the safety of any other person and  the community--(1)
upon motion of the attorney for the Gov- ernment, in a case that
involves--(A) a crime of violence; (B)  an offense for which the
maximum sentence is life imprison- ment or death; (C) an offense for
which a maximum term of 


Congress has defined "crime of violence" in the Bail Re- form Act in
three parts, as follows:


the term "crime of violence" means--


(A) an offense that has as 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 [18 U.S.C.  s 2241 et seq.], 110 [18
U.S.C. s 2251 et seq.], or 117  [18 U.S.C. s 2421 et seq.].


18 U.S.C. s 3156(a)(4). Subpart C is irrelevant here, as is  subpart A
because, as the government concedes, use of a  firearm is not an
element of s 922(g), which encompasses  mere possession. Compare 18
U.S.C. s 924(c)(1)(A); Bailey  v. United States, 516 U.S. 137, 143
(1995). The open question 




__________

n imprisonment of ten years or more is prescribed in the Con- trolled
Substances Act (21 U.S.C. Sec. 801 et seq.), the Controlled 
Substances Import and Export Act (21 U.S.C. Sec. 951 et seq.), or  the
Maritime Drug Law Enforcement Act (46 U.S.C. App.1901  et seq.); or
(D) any felony if the person has been convicted of  two or more
offenses described [in clauses A-C], or two or  more State or local
offenses that would have been offenses  described [in clauses A-C] if
a circumstance giving rise to  Federal jurisdiction had existed, or a
combination of such  offenses; or (2) Upon motion of the attorney for
the Govern- ment or upon the judicial officer's own motion, in a case
that  involves--(A) a serious risk that the person will flee; or (B) a
 serious risk that the person will obstruct or attempt to obstruct 
justice, or threaten, injure, or intimidate, or attempt to threat- en,
injure, or intimidate, a prospective witness or juror. The  hearing
shall be held immediately upon the person's first  appearance before
the judicial officer.... Except for good  cause, a continuance on
motion of ... the attorney for the  Government may not exceed three
days (not including any  intermediate Saturday, Sunday, or legal
holiday).  is whether the "nature" of an offense under s 922(g) is
such  that a "substantial risk" of violence arises "in the course of 
committing the offense." We first address a threshold issue  regarding
the methodology for reaching the conclusion that  triggers a detention
hearing, and then turn to the govern- ment's contention that a
felon-in-possession charge under  s 922(g) is categorically a crime of
violence within the mean- ing of s 3142(f).


II.


The threshold issue is whether the Bail Reform Act re- quires courts to
identify crimes of violence on a categorical or  case-by-case basis.
The government, while expressing a pref- erence for the categorical
approach, suggests that the court  may also review the specific facts
of each s 922(g) charge to  determine whether a particular defendant
has committed the  offense in a violent manner warranting detention.
By con- trast, amicus (the Federal Public Defender) joined by Single-
ton, maintains that the statute contemplates a categorical rule  that
would treat all felon-in-possession offenses alike, and  label them
"crimes of violence" only if the offense by its  general nature
satisfies s 3142(f).


The weight of authority endorses a categorical approach.  With one
exception,3 published district court opinions ex- pressly considering
the choice between a categorical and case- by-case approach to
defining crimes of violence under  s 3142(f) have opted for the
categorical rule. See, e.g.,  United States v. Carter, 996 F. Supp.
260, 261-62 (W.D.N.Y.  1998); United States v. Gloster, 969 F. Supp.
92, 94 (D.D.C.  1997); United States v. Washington, 907 F. Supp. 476,
484  (D.D.C. 1995); United States v. Aiken, 775 F. Supp. 855, 856  (D.
Md. 1991); United States v. Marzullo, 780 F. Supp. 658,  662 n.8 (W.D.
Mo. 1991); United States v. Phillips, 732 F.  Supp. 255, 261 (D. Mass.
1990); United States v. Johnson, 704  F. Supp. 1398, 1400 (E.D. Mich.
1988). Although no court of  appeals has expressly addressed this
question in the context 




__________

n 3 The exception is United States v. Epps, 987 F. Supp. 22  (D.D.C.
1997), which relied on a flawed description of pretrial  detention
procedures, as discussed below.


of s 3142(f),4 all three circuits reviewing the identical defini- tion
of crimes of violence in 18 U.S.C. s 16 (1994), outside the 
sentencing context,5 have also applied a categorical approach.  See
United States v. Baker, 10 F.3d 1374, 1394 (9th Cir. 1993);  United
States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir.  1993); United
States v. Cruz, 805 F.2d 1464, 1469-70 (11th  Cir. 1986); see also
United States v. Moore, 38 F.3d 977, 979  (8th Cir. 1994) (applying
categorical approach to "crime of  violence" definition in 18 U.S.C. s
924(c)(3)). Cf. Taylor v.  United States, 495 U.S. 575, 600-01


Weight of authority aside, we conclude from the plain  meaning of s
3156 that a categorical approach is required.  Each of the three
prongs of the statutory definition identify a  fixed category of
offenses that does not expand or contract  based on the factual
peculiarities of a particular case. Sec- tion 3156(a)(4)(A) applies
only to offenses that have "as an 




__________

n 4 But cf. United States v. Byrd, 969 F.2d 106, 110 (5th Cir.  1992)
(per curiam) (reviewing the record to assess the nexus  between an
offense and an act of violence, but not expressly  considering or
acknowledging the distinction between categorical  and case-by-case
approaches to s 3142(f) findings).


5 Some courts have applied a case-by-case approach to inter- preting
United States Sentencing Guidelines s 4B1.2(a)(1), which  defines
"crime of violence" in the context of career offender en- hancements
in a similar fashion as 18 U.S.C. ss 16 and 3156. See,  e.g., United
States v. Chapple, 942 F.2d 439, 440-42 (7th Cir. 1991).  We need not
consider whether this approach is correct because the  bail and
sentencing provisions are materially different: s 3156  limits the
range of predicate offenses to those that "by [their]  nature" create
a risk of violence, while the sentencing guidelines do  not similarly
limit review to the "nature" of an offense. Cf. United  States v.
Valazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996)  (stressing
importance of the phrase "by its nature" in 18 U.S.C.  s 16 as
incorporated into U.S.S.G. s 2L1.2, for which the court  adopted a
categorical approach). The apparently more expansive  scope of the
sentencing inquiry is consistent with the availability of  a more
extensive record after trial, which makes individualized  findings
more feasible than they would be immediately following  arrest.


element of the offense" aspects of physical force. The term  of art
"element of the offense" makes clear that a court need  look no
further than the statute creating the offense to decide  whether it
describes a crime of violence. Likewise,  s 3156(a)(4)(C) applies only
to three specifically enumerated  statutes, and requires no factual


Section 3156(a)(4)(B) is a bit more ambiguous than its  neighbors,
encompassing offenses that do not include violence  as an element, but
by their "nature" entail a substantial risk  of violence. The word
"nature" has no plain meaning stand- ing on its own, and might
therefore be amenable to conflicting  interpretations. However, the
word in context, see generally  Deal v. United States, 508 U.S. 129,
132 (1993), must be read  with the preceding "its," which refers back
to "offense," which  in the preceding sentence refers to the statutory
provision  creating a crime rather than the factual incident
constituting  the crime. Unless the meaning of "offense" metamorphoses
 from one sentence to the next, which is implausible,6 the use  of the
word "nature" refers to a legal charge rather than its  factual


This conclusion is consistent with the language of  s 3142(g)(1), which
permits a judicial officer during a deten- tion hearing to consider
the "nature and circumstances of the  offense charged" for the purpose
of determining whether  there are conditions of release that will
reasonably assure the  return of the person and the safety of others.
The distinction  between "nature" and "circumstances" clarifies that
the for-




__________

n 6 Two provisions of s 3156 define "offense," although the defini-
tions are identical for present purposes. Subsection a(2) defines it 
in part as "any criminal offense ... in violation of an Act of 
Congress," while subsection b(2) defines it in part as "any Federal 
criminal offense." We read both to refer to criminal statutes,  rather
than a set of facts constituting a violation of a statute. 
Technically, these definitions apply only to 18 U.S.C. ss 3141-50  and
3152-55, and thus do not control the use of "offense" elsewhere  in s
3156. The definitions are nevertheless instructive because  Congress
is unlikely to have used a word in one paragraph in a  manner that
contradicts the definitions of the same word in the  same section.


mer refers to the generic offense while the latter encompass- es the
manner in which the defendant committed it. Case- specific facts are
thus relevant at a detention hearing, see  s 3142(g), but not when
considering the government's motion  under s 3142(f)(1)(A) to hold
such a hearing.


The alternative, case-by-case, approach would collapse the  distinction
between the holding that triggers a detention  hearing and the factors
relevant at the hearing, which are  enumerated in s 3142(g). Section
3142(f) entitles defendants  to a prompt detention hearing, either
immediately at the  defendant's first appearance before a judicial
officer, or with- in days thereafter. In recognition of the fact that
defendants  remain incarcerated between the time the court determines
a  hearing is necessary and the time the hearing occurs, see  s
3142(f), Congress strictly limited the availability of continu- ances.
See id. Accordingly, detention hearings normally  occur before either
side has had an opportunity to develop its  evidentiary case, and the
court's capacity to reach accurate  factual determinations is limited.
The decision whether to  hold a hearing occurs based on even less
information than a  decision to detain or release: a detention order
is based on a  hearing, while an order to hold a hearing is based on a
proffer  of what the hearing might establish. The single district
court  concluding that Congress contemplated a case-by-case ap- proach
overlooked this distinction, implying that reviewing  the "nature" of
an offense at the hearing could illuminate  whether the hearing itself
was appropriate. See United  States v. Epps, 987 F. Supp. 22, 24-25
(D.D.C. 1997). This  two-tiered hearing-within-a-hearing procedure
would protract  detention analysis and erase the barrier that Congress
con- structed between sections 3142 (f) and (g). Thus, because 
adopting a case-by-case approach would blur two distinct  statutory
inquiries and would give more weight to fact- intensive analysis at an
earlier stage of the case than Con- gress appears to have intended, we
conclude that s 3142(f)  contemplates that offenses eligible for
pretrial detention hear- ings are ascertainable categorically by
reference to their  elements, either because these elements entail the
use of  violence, see s 3156(a)(4)(A), or the risk of violence, see  s


At oral argument, the government offered two alternative  formulations
of the text; neither is persuasive. First, the  government attaches
significance to the fact that s 3142(f)  applies to any "case" that
"involves" a crime of violence.  Whatever the meaning of "case" and
"involves," they clearly  apply to--rather than modify--the definition
of "crime of  violence" in s 3156, and that definition requires a
categorical  approach to identifying predicate offenses for pretrial
deten- tion. Second, the government notes that Congress could  have
made its intention clearer by including the word  "charged" before
"offense" in s 3156(a)(4)(B). For the rea- sons already noted, we
conclude that the existing language is  sufficiently plain to require
the categorical approach; the  possibility that the statute could have
been even plainer does  not mean by negative implication that Congress
unambigu- ously expressed the opposite intent.


Accordingly, whether a felon-in-possession offense under  s 922(g) is a
crime of violence under s 3142(f) turns on a  question of law to which
the underlying facts of a particular  case are irrelevant.


III.


Federal courts have divided over whether a felon-in- possession offense
is a crime of violence warranting pretrial  detention. To date, no
court of appeals has issued a publish- ed opinion on the question. Two
circuits, including this one,  have summarily addressed the issue in
unpublished opinions  that lack precedential force; a panel of this
circuit concluded  that s 922(g) is a crime of violence, while a panel
of the Sixth  Circuit disagreed. See United States v. Floyd, No.
98-3082,  1998 WL 700158 (D.C. Cir. Aug. 10, 1998); United States v. 
Hardon, No. 98-1625, 1998 WL 320945 (6th Cir. June 4, 1998)  (citing
United States v. Gloster, 969 F. Supp. 92, 95 (D.D.C.  1997)).7
Reported opinions of district courts also are in dis-




__________

n 7 The unpublished order in Floyd does not bind this panel. See  D.C.
Circuit Rule 28(c); Taylor v. Federal Deposit Ins. Corp., 132  F.3d
753, 761 (D.C. Cir. 1997).


agreement. This district and two other districts have split  internally
on the question,8 while five districts form a majori- ty
characterizing s 922(g) as a crime of violence triggering a  detention


We begin with the plain meaning of the statute. See  generally Bailey,
516 U.S. at 144-45. However, we do not  write on a clean slate because
the Supreme Court has already  recognized that Congress limited
pretrial detention of persons  who are presumed innocent to a subset
of defendants charged  with crimes that are "the most serious"
compared to other  federal offenses. United States v. Salerno, 481
U.S. 739, 747  (1987).10 This construction is consistent with the
Senate  Report, which states that pretrial detention is necessary for 
only a "small but identifiable group of particularly dangerous 
defendants." See S. Rep. No. 98-225, at 6 (1984). That  report clearly
indicated that "the offenses set forth in subsec- tion f(1) (A)
through (C) [of s 3142] are ... essentially the  same categories of
offenses described in the District of Co-




__________

n 8 Compare United States v. Robinson, 27 F. Supp. 2d 1116,  1118 (S.D.
Ind. 1998) (not a crime of violence), United States v.  Gloster, 969
F. Supp. 92, 94-96 (D.D.C. 1997) (same), and United  States v. Powell,
813 F. Supp. 903, 907-08 (D. Mass 1992) (same)  with United States v.
Sloan, 820 F. Supp. 1133, 1140 (S.D. Ind.  1993) (crime of violence),
United States v. Floyd, 11 F. Supp. 2d 39  (D.D.C.), aff'd, No.
98-3082, 1998 WL 700158 (D.C. Cir. Aug. 10  1998) (same), United
States v. Washington, 907 F. Supp. 476, 485  (D.D.C. 1995) (same), and
United States v. Phillips, 732 F. Supp.  255, 263 (D. Mass. 1990)


9 See United States v. Chappelle, ___ F. Supp. 2d ____, 1999  WL 305109
(E.D. Va. Apr. 26, 1999); United States v. Campbell, 28  F. Supp. 2d
805, 808-10 (W.D.N.Y. 1998); United States v. Butler,  165 F.R.D. 68,
72 (N.D. Ohio 1996); United States v. Aiken, 775  F. Supp. 855, 856-57
(D. Md. 1991); United States v. Johnson, 704  F. Supp. 1398, 1403
(E.D. Mich. 1988).


10 The Court's construction upholding the pretrial detention  statute
reflects a concern for the "importan[t] and fundamental  nature" of
the defendant's "strong interest in liberty," which may be 
subordinated only to "sufficiently weighty" government interests. 
Salerno, 481 U.S. at 750.


lumbia Code" for purposes of preventive detention under local  law, id.
at 20-21, further suggesting that the general lan- guage of the
federal statute does not embrace a large catego- ry of possession
offenses that the more specific language of  the D.C. statute
excluded.11 Interpretative uncertainty must  be resolved in light of
the foregoing understanding of Con- gressional intent.12


The government's theory is that convicted felons who pos- sess firearms
are prone to violence, more so than non-felons  who possess firearms,
and would be inclined to use firearms  during a violent incident.
Because a "substantial risk" of  violence is allegedly inherent in the
possession of the gun-- which can quickly escalate to use--the
government maintains  that a felon's mere possession of a firearm by
its nature  entails a substantial risk of violence.13 This theory is
laden  with factual assumptions for which the government offers no 




__________

n 11 Contrary to the government's statement at oral argument,  the fact
that firearms possession was not listed in the D.C. Bail Act  as an
offense triggering a detention hearing because it was not then  a
felony in the District of Columbia is irrelevant; what the legisla-
tive history indicates is that Congress wanted to incorporate the list
 of crimes that were then listed in the D.C. statute. In referencing 
the D.C. statute, the Senate Report cited D.C. Code ss 23-1331(3) 
(defining "dangerous crime") & (4) (defining "crime of violence"), 
neither of which listed a purely possessory offense of any kind.


12 If the statute were ambiguous, the rule of lenity would  require a
narrow construction. See, e.g., Bifulco v. United States,  447 U.S.
381, 387 (1980). The rule applies to penalty provisions in  criminal
statutes, see id., and is appropriate in bail proceedings as  well.
Cf. Reno v. Koray, 515 U.S. 50, 64 (1995). Given the  Supreme Court's
narrow interpretation of the pretrial detention  provisions in
Salerno, 481 U.S. at 747, as well as our analysis of  plain meaning,
we have no occasion to apply the rule of lenity here.


13 The government also contends that violations of s 922(g) are  crimes
of violence because felons know that they may not possess  firearms,
and their decision to do so is therefore a "contemptuous"  affront to
the law performed in a potentially violent manner. We  reject the
premise of this argument, which taken to its logical  conclusion
converts impudence into a proxy for potential violence, 


empirical support, but the argument is overstated even if  taken at
face value because it ignores the limiting language in  s


For a risk of violence to matter under s 3142, it must arise  "in the
course of committing the offense." 18 U.S.C.  s 3156(a)(4)(B). The
government construes "in the course  of" as purely a temporal
restraint, such that when commission  of one offense correlates with
and would occur contemporane- ously with a second, more violent
offense, then the violence of  the latter offense may be deemed a
"risk" of the associated  non-violent offense. Thus, because a felon
who possesses a  firearm violates s 922(g) for the duration of
possession, he  would violate s 922(g) during any act of violence he
may  commit with the firearm, and thus these acts of violence  would
arise "in the course of" a s 922(g) offense. While  nimble, this
construction fails to respect the words and con- text of s 3156.


First, the nexus requirement in s 3156(a)(4)(B) is more  than merely
temporal because the phrase "in the course of  committing" indicates
that some aspect of the charged offense  must create the risk of
violence in order to itself qualify as a  crime of violence. Absent a
direct relationship between the  offense and a risk of violence, the
possibility of violence is not  a basis for pretrial detention on a
charge that on its face does  not involve violence as an element. The
classic example of an  offense evidencing such a direct relationship
is burglary. See,  e.g., United States v. Chimurenga, 760 F.2d 400,
404 (2d Cir.  1985); S. Rep. No. 98-225, at 307 (1984). The risk of
violence  in a burglary is not merely temporally coincident with the 
offense, but arises from the actions of the burglar in commit- ting
the crime itself, and the likely consequences that would  ensue upon
intervention of another person. This more pre- cise relationship
between charged conduct and future risk is  necessary to satisfy s




__________

n and thus transforms most felonies into predicates for pretrial 
detention.


14 Taken literally, the government's temporal relationship theo- ry
suggests that obviously non-violent crimes such as felonious 


Second, the relationship between possession and use of a  firearm is
sufficiently attenuated that possession alone does  not create a
"substantial risk" of use. 18 U.S.C.  s 3156(a)(4)(B). As then-Chief
Judge Breyer explained in  holding that felon-in-possession offenses
are not violent felo- nies under s 924(e):


One can easily imagine a significant likelihood that physi- cal harm
will often accompany the very conduct that  normally constitutes, say,
burglary or arson. It is much  harder, however, to imagine such a risk
of physical harm  often accompanying the conduct that normally consti-
tutes firearm possession, for simple possession, even by a  felon,
takes place in a variety of ways (e.g., in a closet, in  a storeroom,
in a car, in a pocket) many, perhaps most, of  which do not involve
likely accompanying violence.


United States v. Doe, 960 F.2d 221, 224-25 (1st Cir. 1992).  While
felons with guns may as a class be more likely than  non-felons with
guns or felons without guns to commit violent  acts, nothing inherent
in a s 922(g) offense creates a "sub- stantial risk" of violence
warranting pretrial detention.


Third, even if we accept that a substantial risk of violence  arises
merely because a potentially violent person possesses  an
instrumentality of violence, the government's theory would  still be
overbroad because not all felons are potentially 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. See, e.g., 18 U.S.C.  ss 153 (embezzlement against
estate); 289 (false claims for  pensions); 335 (circulation of
obligations of expired corpora- tions); 602 (solicitation of political
contributions); 1025 (false  pretenses on the high seas); 1341 (frauds
and swindles); 1367  (interference with the operation of a satellite);
1728 (fraudu- lent increase in weight of mail); 1910 (nepotism in
appoint- ment of receiver or trustee). Section 3142(f) implicitly




__________

n possession of burglar's tools could qualify as violent offenses be-
cause they often occur contemporaneously with a violent offense,  such
as burglary. See, e.g., Va. Code Ann. s 18.2-94; 720 Ill.  Comp. Stat.
5/19-2; Wyo. Stat. Ann. s 6-3-304.


nizes this fact because it does not authorize pretrial detention  for
such offenses. Thus, a person convicted of a non-violent  crime does
not become a candidate for pretrial detention  merely by subsequently
possessing a firearm, as such a  person does not seem especially more
likely to use the  firearm in a violent manner. The government opposes
this  reasoning because s 922(g) does not distinguish between  violent
and non-violent felonies, reflecting Congressional rec- ognition of
the link between felons, guns, and crime. Howev- er, the policy
considerations in favor of limiting felons' rights  to possess
firearms differ substantially from those in favor of  pretrial
detention of people who are presumed innocent. See  Salerno, 481 U.S.
at 750 ("The Bail Reform Act ... narrowly  focuses on a particularly
acute problem" and involves a  "particularized governmental
interest"). The distinction be- tween violent and non-violent felonies
is therefore meaningful  in the context of s 3142(f)(1)(A)
determinations even though  the distinction is irrelevant in s 922(g)
cases. Cf. Old Chief v.  United States, 519 U.S. 172, 190-91 (1997).


Fourth, interpreting s 3142(f)(1) to exclude felon-in- possession
offenses does not deprive the government of an  opportunity to detain
armed felons when other circumstances  warrant. For example, pretrial
detention is permissible in  s 922(g) cases if the defendant has two
prior predicate felony  convictions, see s 3142(f)(1)(D), is likely to
flee, see  s 3142(f)(2)(A), or is likely to obstruct justice, see  s
3142(f)(2)(B). When none of these factors is present, how- ever, the
government cannot secure detention by squeezing  s 922(g) into the
"specific category of extremely serious"  violent offenses covered by
s 3142(f). Salerno, 481 U.S. at  750.


Finally, the government maintains that legislative history  of sections
3142 and 922(g) supports the general propositions  that felons should
not have guns and violent criminals should  not obtain bail. However,
none of the cited materials address  the question under review, which
is whether felons who  possess firearms have thereby committed a crime
of violence  sufficient to warrant pretrial detention. Cf. Doe, 960
F.2d at  225-26. Given the plain statutory language, any ambiguous 


legislative history must yield to the words Congress used in  the
statute itself. See, e.g., Salinas v. United States, 118 S.  Ct. 469,
474 (1997). Congress is of course free to amend  s 3142, but this
court is bound by the language that Congress  has so far provided.


Our rejection of the government's interpretation is consis- tent with
the treatment of "crimes of violence" at sentencing.  First, under the
Sentencing Guidelines, certain "career of- fenders" may receive
enhanced sentences based upon present  and past "crime[s] of
violence." U.S.S.G. s 4B1.1. The  Guidelines define "crime of


any offense under federal or state law, punishable by  imprisonment for
a term exceeding one year, that--(1)  has as an element the use,
attempted use, or threatened  use of physical force against the person
of another, or (2)  is burglary of a dwelling, arson, or extortion,
involves use  of explosives, or otherwise involves conduct that
presents  a serious potential risk of physical injury to another.


U.S.S.G. s 4B1.2(a). In an application note binding on feder- al
courts, the Sentencing Commission has excluded felon-in- possession
offenses from this definition. See id. s 4B1.2  application note 1;
Stinson v. United States, 508 U.S. 36, 47  (1993). Amicus and
Singleton reason that because s 4B1.2(a)  parallels s 3156(a)(4), the
court should read them consistently  and exclude felon-in-possession
offenses from the latter.


Of course, the Sentencing Commission's interpretation of  s 4B1.2(a) is
not binding here, both because the Commission  lacks authority to
interpret s 3156 and because its analysis is  not "compelled" by s
4B1.2(a), but is merely a sufficiently  plausible interpretation to
warrant deference in sentencing  cases. Stinson, 508 U.S. at 47.
Nevertheless, the overlap  between bail and sentencing is striking, at
least in the present  context. At sentencing, a court has extensive
information  about a particular offense and the defendant has been
found  guilty of it. By contrast, before trial the judicial officer
has  few facts and the defendant is presumed innocent. Yet the 
purpose of review is similar in both instances because the  court must
parse violent from non-violent defendants in ap-


plying the more stringent incarceration requirements that  Congress
imposed on the former. Given that under s 4B1.2  a felon-in-possession
charge is never a proxy for violence on a  full record when guilt is
established, it would be odd to  conclude that it is categorically a
proxy for violence on a thin  record when the presumption of innocence
applies. If there  were to be a distinction between the two inquiries,
it presum- ably would run in the opposite direction.


The same reasoning supports the analogy that amicus and  Singleton draw
to sentence enhancements under 18 U.S.C.  s 924(e) for s 922(g)
offenders who have committed three  "violent felon[ies]." The term
"violent felony" in s 924(e) is  similar to the term "crime of
violence" in s 4B1.2(a), see 18  U.S.C. s 924(e)(2)(B), and it too has
been interpreted to  exclude felon-in-possession offenses. See United
States v.  Oliver, 20 F.3d 415, 417-18 (11th Cir. 1994); Doe, 960 F.2d
at  223-26. Cf. United States v. Garcia-Cruz, 978 F.2d 537, 543  (9th
Cir. 1992).15 If s 922(g) violations are not a predicate for 
lengthening the sentence of convicted armed recidivists, it  would be
incongruous to hold that the offense nevertheless  warrants detention
of merely accused armed recidivists.  Each context requires the court
to implement a congressional  policy favoring incapacitation of
violent offenders, and we see  no reason to suppose that s 922(g)
offenses trigger Con- gress's concern in the bail context but not in


Accordingly, because we conclude that s 3156(a)(4)(B)  makes clear that
Congress did not include possession of a  firearm by a felon within
the category of offenses triggering  the government's right to a
detention hearing under  s 3142(f)(1), we hold that Singleton has not
been charged  with a crime of violence warranting pretrial detention,
and we  therefore affirm the order of the district court.




__________

n 15 Accord Royce v. Hahn, 151 F.3d 116, 124 (3d Cir. 1998)  (holding
that felon-in-possession offense is not a crime of violence  under 18
U.S.C. s 4042(b)(3)(B)); United States v. Canon, 993 F.2d  1439, 1441
(9th Cir. 1993) (interpreting 18 U.S.C. s 924(c)).