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United States v. Watkins

United States Court of Appeals, Second Circuit

October 3, 2019

United States of America, Appellee,
v.
Larry Watkins, Sr., Defendant-Appellant.

          Submitted: January 29, 2019

          On Appeal from the United States District Court for the Western District of New York

         Defendant-Appellant Larry Watkins, Sr. ("Watkins") was charged in a one-count indictment with possession of ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On July 19, 2018, Magistrate Judge Michael J. Roemer entered a detention order, which the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge) affirmed in an October 9 Decision and Order ("October 9 Order"). On October 18, Watkins appealed the District Court's October 9 Order, and on December 26, he filed a motion for bail before us. On January 30, 2019, we entered an order denying Watkins's bail motion and affirming the District Court's October 9 Order. This opinion sets forth our reasoning.

         The central issue on appeal is whether the Government was entitled to a detention hearing under 18 U.S.C. §§ 3142(f)(1)(A) or 3142(f)(1)(E) of the Bail Reform Act. We conclude that it was. In so doing, we reject Watkins's vagueness challenge to the residual clause in the Bail Reform Act's definition of "crime of violence." We further conclude that possession of ammunition by a convicted felon is categorically a crime of violence under the residual clause, and therefore satisfies § 3142(f)(1)(A). Finally, pursuant to a conduct- specific inquiry, we conclude that Watkins's offense also involved the possession or use of a firearm under § 3142(f)(1)(E) because Watkins discharged the ammunition from a firearm. Accordingly, on January 30, 2019 we AFFIRMED the District Court's October 9 Order and DENIED Watkins's motion for bail.

          Monica J. Richards, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

          Alan S. Hoffman, Buffalo, NY, for Defendant- Appellant.

          Before: Cabranes, Wesley, and Livingston, Circuit Judges.

          José A. Cabranes, Circuit Judge.

         Defendant-Appellant Larry Watkins, Sr. ("Watkins") was charged in a one-count indictment with possession of ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On July 19, 2018, Magistrate Judge Michael J. Roemer entered a detention order, which the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge) affirmed in an October 9 Decision and Order ("October 9 Order"). On October 18, Watkins appealed the District Court's October 9 Order, and on December 26, Watkins filed a motion for bail before us. On January 30, 2019, we entered an order denying Watkins's bail motion and affirming the District Court's October 9 Order. This opinion sets forth our reasoning.

         The central issue on appeal is whether the Government was entitled to a detention hearing under 18 U.S.C. §§ 3142(f)(1)(A) and 3142(f)(1)(E) of the Bail Reform Act. We conclude that it was. In so doing, we reject Watkins's vagueness challenge to the residual clause in the Bail Reform Act's definition of "crime of violence." We further conclude that possession of ammunition by a convicted felon is categorically a crime of violence under the residual clause, and therefore satisfies § 3142(f)(1)(A). Finally, pursuant to a conduct- specific inquiry, we conclude that Watkins's offense also involved the possession or use of a firearm under § 3142(f)(1)(E) because Watkins discharged the ammunition from a firearm. Accordingly, we AFFIRMED the District Court's October 9 Order and DENIED Watkins's motion for bail.

         I. BACKGROUND[1]

         On June 16, 2018, Watkins fired nine bullets at a fleeing vehicle on a residential street in broad daylight. Watkins had only recently been discharged from federal supervised release after serving a ten- year sentence for a drug conspiracy conviction. Watkins claims to have been standing on his front lawn when he observed the vehicle's occupants target his son in a drive-by shooting. To protect his son, Watkins immediately chased the vehicle into the street and began firing.

         Watkins fled the scene after the shooting and deposited the illegally possessed handgun at a relative's home. He later returned and spoke with investigators from the Buffalo Police Department. Watkins did not immediately admit his involvement in the shooting.

         Days later, Watkins was arrested and interviewed by agents from the Federal Bureau of Investigation ("FBI"). Determined to recover the missing firearm, the FBI agents promised Watkins that they would not seek to have him charged with possession of the firearm if he revealed its location. Watkins eventually led the FBI agents to his relative's home, where they recovered a fully-loaded, semi-automatic pistol.

         On June 21, 2018, Watkins was charged in a one-count indictment for possession of ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At his arraignment, the Government moved to detain Watkins without bail pending trial.

         During a July 2 detention hearing, the Magistrate Judge made the unusual decision to order briefing from both parties on the threshold question of whether the Government was entitled to a detention hearing under § 3142(f)(1). Pursuant to § 3142(f)(1), a judicial officer must hold a detention hearing upon motion of the Government "in a case that involves":

(A) a crime of violence . . .;
(B) an offense for which the maximum sentence is life imprisonment or death;
(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . .;
(D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph . . .; or
(E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device . . . .[2]

         The term "crime of violence" is defined, in relevant part, as:

(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; [or]
(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.[3]

         The first clause ("A") is commonly referred to as the "elements" clause, while the second ("B") is referred to as the "residual" clause.[4]

         The Government proffered two theories in support of its right to a detention hearing under § 3142(f)(1). First, despite effectively conceding that possession of ammunition is not itself a "crime of violence," the Government emphasized that Watkins's charged offense-felon-in-possession of ammunition-stemmed from a shooting, which is indisputably a "crime of violence." Therefore, the government argued, Watkins's charged offense bears a significant factual nexus to a crime of violence and is thus a case that "involves" a "crime of violence" under § 3142(f)(1)(A). In other words, according to the Government, the prefatory language of § 3142(f)(1)-which provides for a detention hearing "in a case that involves" certain types of offense-means that the charged offense need not itself be a "crime of violence," so long as it bears a significant factual nexus to a crime of violence. Second, the Government argued that Watkins's charged offense qualifies under § 3142(f)(1)(E) because the underlying conduct "involve[d] the possession or use of a firearm."[5]

         Watkins, in turn, disagreed with the Government's interpretation of the phrase "in a case that involves." Rather, he maintained that § 3142(f)(1)(A) requires that the charged offense itself constitute a crime of violence. Similarly, he argued that § 3142(f)(1)(E) requires that the charged offense have, as an element, the use or possession of a firearm. Finally, relying on the Supreme Court's decisions in Johnson v. United States[6] and Sessions v. Dimaya, [7] Watkins argued that the residual clause in the Bail Reform Act's definition of "crime of violence" is unconstitutionally vague.[8]

         At the continued hearing on July 16, 2018, Magistrate Judge Roemer found that the Government was entitled to a detention hearing under both § 3142(f)(1)(A) and § 3142(f)(1)(E), and that it had established by clear and convincing evidence that no condition or combination of conditions could reasonably assure the safety of any other person and the community were Watkins to be released. Magistrate Judge Roemer thereupon immediately remanded Watkins to the custody of the United States Marshals Service and entered a detention order on July 19, 2018.

         On August 28, 2018, Watkins filed a motion for reconsideration of Magistrate Judge Roemer's July 19 detention order, which the District Court construed as a motion for revocation of the July 19 detention order.[9] In the October 9 Order, Judge Vilardo upheld the July 19 detention order for three reasons. First, relying on our decision in United States v. Dillard, [10] he concluded that possession of ammunition is categorically a "crime of violence" under the § 3156(a)(4)(B) residual clause, as incorporated in § 3142(f)(1)(A). Second, Judge Vilardo appeared to agree with the Government that Watkins's case "involved" a crime of violence under § 3142(f)(1)(A) because the charged offense bore a significant factual nexus to a crime of violence. Third, he concluded that Watkins's charged offense "involve[d] the possession or use of a firearm" under § 3142(f)(1)(E) because "the ammunition alleged to have been possessed was also alleged to have been actually fired from a firearm."[11] Finally, Judge Vilardo rejected Watkins's argument that the residual clause in the Bail Reform Act's definition of "crime of violence" is unconstitutionally vague.

         On October 18, 2018, Watkins appealed the District Court's October 9 Order. He subsequently filed a motion for bail on December 26, 2018. On appeal, Watkins maintains that the Government was not entitled to a detention hearing under either § 3142(f)(1)(A) or § 3142(f)(1)(E). He further contends that the Bail Reform Act's residual clause is unconstitutionally vague.[12]

         On January 30, 2019, we entered an order denying Watkins's motion for bail, "with an opinion forthcoming."[13] This opinion sets forth the reasoning for our conclusion that the Government was entitled to a detention hearing under both § 3142(f)(1)(A) and § 3142(f)(1)(E).

         II. DISCUSSION

         A. Standards of Review

         Generally, "we apply deferential review to a district court's order of detention and will not reverse except for clear error, i.e., unless on the entire evidence we are left with the definite and firm conviction that a mistake has been committed."[14] We review de novo questions of law.[15]

         B. The Bail Reform Act

         The Bail Reform Act allows federal courts to detain an arrestee pending trial if, during an adversary hearing, the Government demonstrates by clear and convincing evidence that no release conditions "will reasonably assure . . . the safety of any other person and the community."[16] First, however, the Government must establish by a preponderance of the evidence that it is entitled to a detention hearing.[17]

         Pursuant to § 3142(f), the Government is entitled to a pretrial detention hearing if: (1) the charged offense falls within any of the five subcategories set forth in § 3142(f)(1)(A)-(E); (2) the defendant poses a serious risk of flight;[18] or (3) there is a serious risk that the defendant will attempt to obstruct justice, or threaten, injure, or intimidate a witness or juror.[19] Section 3142(f)(1) thus performs a gate-keeping function by "limit[ing] the circumstances under which [pretrial] detention may be sought to the most serious of crimes."[20]

         Once the Government has demonstrated to the District Court that it is entitled to seek pretrial detention under § 3142(f), a judicial officer must promptly hold a hearing. At this hearing, the parties may "present information by proffer or otherwise," since the "rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing."[21]The defendant has the right to be represented by counsel, and can testify on his own behalf, present witnesses, and cross-examine witnesses who appear at the hearing.[22]

         In deciding whether to detain an arrestee, the judicial officer "is not given unbridled discretion."[23] Rather, Congress has specified certain factors the judicial officer must consider, including the nature and circumstances of the charges; the substantiality of the Government's evidence; the arrestee's background; and the nature and seriousness of the danger to any person or the community that the arrestee's release would pose.[24] Ultimately, it is the Government's burden to prove to the judicial officer by clear and convincing evidence that "no condition or combination of conditions will reasonably assure the safety of any other person and the community."[25]

         Here, the Government did not allege that Watkins presents a serious risk of flight or obstruction. Accordingly, in order to be entitled to a detention hearing, the Government had to establish that Watkins's offense falls within one of the five subsections set forth in § 3142(f)(1). Both parties agree that only subsections (A) and (E) are potentially relevant to Watkins's circumstances. Those subsections entitle the Government to a detention hearing in a case that involves "a crime of violence" (as defined in § 3156(a)(4)) or "any felony that . . . involves the possession or use of a firearm, "[26] respectively.

         C. Void-for-Vagueness

         Before we consider whether possession of ammunition constitutes a "crime of violence" under § 3142(f)(1)(A), we must address the threshold issue of whether its residual clause is unconstitutionally vague under the Fifth Amendment's Due Process Clause.[27]

         The Supreme Court has instructed that "the degree of vagueness that the Constitution allows depends in part on the nature of the enactment."[28] Generally, we are to express "greater tolerance" for vagueness in statutes that impose civil, rather than criminal, penalties "because the consequences of imprecision are qualitatively less severe."[29] To date, the Supreme Court, in a trilogy of cases, [30] has invalidated residual clauses appearing in statutes that either: (1) establish new criminal offenses; or (2) impose severe or enhanced penalties.

         By contrast, in Beckles v. United States, [31] the Supreme Court held that the now-defunct[32] residual clause in the "career offender" enhancement of the United States Sentencing Guidelines[33]("Guidelines") was immune from a void-for-vagueness challenge. Recognizing that it had by then (2017) invalidated only two kinds of criminal laws as "void for vagueness"-"laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses"[34]-the Supreme Court reasoned that the advisory Guidelines fall within neither category. In other words, the Guidelines do not fix the permissible range of sentences or establish new criminal offenses; rather, they "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range."[35] As such, the Guidelines do not implicate the twin concerns underlying the vagueness doctrine-"providing notice and preventing arbitrary enforcement."[36] Indeed, no amount of notice can change the fact that the Guidelines are merely advisory, and "the sentencing court retains discretion to impose [an] enhanced sentence" even if a defendant conforms his behavior to avoid the career offender enhancement.[37] Accordingly, the Supreme Court concluded that the Guidelines are not amenable to a vagueness challenge.[38]

         Like the Guidelines, the Bail Reform Act does not define criminal offenses or impose mandatory penalties. Rather, as explained above, § 3142(f)(1) merely performs a gate-keeping function by narrowing the types of offenses that render an arrestee eligible for a detention hearing. A determination that an arrestee's offense constitutes a "crime of violence" under § 3142(f)(1) is a necessary, but not sufficient, condition to provide a basis for pretrial detention.[39] Moreover, even if the arrestee's offense qualifies under § 3142(f)(1), a judicial officer must still conduct a "full-blown adversary hearing, "[40] where the arrestee is represented by counsel and has the right to present and cross-examine witnesses. It is only after this hearing, and only if the Government has established by clear and convincing evidence that no condition or combination of conditions can reasonably assure the safety of any other person or the community, that a judicial officer can enter a detention order.[41] In sum, it is never a foregone conclusion that an arrestee subject to a detention hearing under § 3142(f)(1) will be detained before trial.

         Additionally, like the Guidelines, § 3142(f)(1) of the Bail Reform Act does not implicate the dual concerns underlying the void-for-vagueness doctrine: fair notice and preventing arbitrary enforcement. "[T]he purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law."[42] In other words, it would be unfair to punish someone if he could not know that his conduct was proscribed or the possible range of punishment to which he would be exposed. Section 3142(f)(1) does not, however, proscribe conduct or set punishment. Indeed, as the Supreme Court explained in United States v. Salerno, [43] pretrial detention does not constitute "punishment" at all.[44] Rather, pretrial detention is "regulatory in nature" because it serves a "pressing societal problem" of preventing danger to the community.[45] Thus, the "distinct character"[46] of non-punitive pretrial detention does not trigger the same constitutional concerns as the ...


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