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
...