Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, February 16, 2005

922(g) not a crime of violence

In U.S. v. Johnson, No. 04-16502 (Feb. 14, 2005), the Court (Tjoflat, Dubina, Cox) granted the defendant’s interlocutory appeal, holding that a conviction for being a felon-in-possession in violation of 18 U.S.C. § 922(g) does not qualify as a "crime of violence" within the meaning of 18 U.S.C. § 3156(a)(4), and therefore was not a basis (as the district court ruled) for denying release after a guilty plea and pending sentencing.
The Court rejected the argument that a § 922(g) charge involves a substantial risk of physical force and therefore qualifies as a "crime of violence." The Court recognized a circuit conflict on this issue, and sided with the courts which focused on the nature of the § 922(g) offense. The Court reasoned that illegal possession of a firearm by a felon did not inherently involve a risk of physical force. The Court noted that a felon’s possession of a firearm did not necessarily pose a greater risk of physical force than a non-felon’s possession, pointing out that some felons are convicted of non-violent felonies. The Court noted that in Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court reasoned that a DUI conviction could not count as an offense involving a risk of harm because the harm was not a "natural outcome of an illegal use of force." The Court contrasted § 922(g) with a burglary, an offense which "necessarily creates a substantial risk of violence."
The Court therefore remanded the case to the district court, for reconsideration of whether the defendant should be released pending sentencing.