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United States v. Nicholson

United States District Court, Eighth Circuit

December 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
MIKE LESTER NICHOLSON, Defendant.

ORDER REGARDING DETENTION PENDING SENTENCING

JON STUART SCOLES, Chief Magistrate Judge.

On the 18th day of December 2013, Defendant Mike Lester Nicholson appeared, together with attorney Cory Goldensoph, and entered a plea of guilty to possession of a short-barreled shotgun. The Government was represented by Special Assistant United States Attorney Lisa C. Williams. After addressing Defendant regarding his rights, I found Defendant guilty of the offense and filed a Report, recommending that the district court accept Defendant's guilty plea. The issue now before the Court is whether Defendant's detention is mandatory pending the sentencing.

Title 18 U.S.C. § 3143(a)(2) states that if a person has been found guilty of certain offenses and is awaiting sentencing, then the judge shall order the person detained. Included in the offenses triggering mandatory detention is a "crime of violence." As applicable in this case, the issue is whether possession of an unregistered short-barreled shotgun, in violation of 26 U.S.C. § 5861(d), is a crime of violence for these purposes. A "crime of violence, " as used in § 3143, 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, 110, or 117.

18 U.S.C. § 3156(a)(4). The Government concedes that subparagraphs (A) and (C) are inapplicable. Accordingly, the issue becomes whether possession of an unregistered short-barreled shotgun is a felony 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."

The parties have not cited any cases which have discussed the term "crime of violence" in this context, and the Court has found none. That is, the Court has not found any case which discusses a "crime of violence" as defined in § 3156(a)(4)(B), and as applied to the post-plea mandatory detention provisions of § 3143(a)(2). However, the term "crime of violence" is defined in identical terms in the general provisions found at the beginning of Title 18. See 18 U.S.C. § 16(b). The term "crime of violence" is also defined in identical terms in § 924(c)(3)(B), relating to mandatory minimum sentences imposed pursuant to § 924(c)(1)(A) when a person possesses a firearm during and in relation to a drug trafficking crime or a crime of violence. Accordingly, cases interpreting §§ 16(b) and 924(c)(3)(B) are instructive in giving meaning to the term "crime of violence" in § 3156(a)(4)(B).

Before discussing the cases addressing §§ 16(b) and 924(c)(3)(B), the Court pauses to note two other provisions having some relevance to the analysis. The United States Sentencing Guidelines ("USSG") define the term "crime of violence" differently than that found in §§ 3156(a)(4), 16(b), and 924(c)(3)(B). A "crime of violence, " as used in § 4B1.2(a) of the USSG means any offense punishable by imprisonment for a term of 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.

USSG § 4B1.2(a). A nearly identical definition is used for purposes of the Armed Career Criminal Act ("ACCA") in defining a "violent felony." See 18 U.S.C. § 924(e)(2)(B). "The statutory definition of violent felony' is viewed as interchangeable with the guidelines definition of crime of violence.'" United States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008) (quoting United States v. Johnson, 417 F.3d 990, 996 (8th Cir. 2005)).

In asking the Court to find that Nicholson's detention is mandatory, the Government points to the definition of "crime of violence" found in USSG § 4B1.2(a)(2). In United States v. Allegree, 175 F.3d 648 (8th Cir. 1999), the Court concluded that possession of a sawed-off shotgun qualifies as a "crime of violence" under § 4B1.2(a)(2). See also United States v. Trotter, 721 F.3d 501, 505 (8th Cir. 2013) (possession of a short-barreled shotgun is a crime of violence under the sentencing guidelines). Similarly, the Eighth Circuit Court of Appeals has held repeatedly that possession of a short-barreled shotgun falls within the residual "otherwise" clause of § 924(e)(2)(B)(ii). United States v. Brown, 734 F.3d 824, 827 (8th Cir. 2013); United States v. Johnson, 526 Fed.Appx. 708 (8th Cir. 2013); United States v. Lillard, 685 F.3d 773, 777 (8th Cir. 2012); United States v. Vincent, 575 F.3d 820, 827 (8th Cir. 2009).

Because the Eighth Circuit has concluded that possession of a short-barreled shotgun is a "crime of violence" under § 4B1.2 of the USSG and a "violent felony" under § 924(e)(2)(B) of the ACCA, the Government argues that possession of a short-barreled shotgun is also a crime of violence under § 3156(a)(4). This argument ignores the distinction between the differently-worded definitions, however, and ignores those cases which have addressed the term "crime of violence" ...


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