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United States v. Elliott

United States District Court, W.D. North Carolina, Asheville Division

July 6, 2015

UNITED STATES OF AMERICA,
v.
DONALD ELLIOTT

ORDER

DENNIS L. HOWELL, Magistrate Judge.

THIS CAUSE came on to be heard before the undersigned at the close of a Rule 11 proceeding that was held before this Court on July 1, 2015. At that time, the Court presented the issue of whether or not Defendant should be detained, pursuant to 18 U.S.C. § 3143(a)(2). This matter further came before the Court pursuant to a Motion for Continued Release After Plea Hearing (#7) filed by Mary Ellen Coleman, counsel for Defendant. In the motion, Defendant contends that 18 U.S.C. § 3143(a)(2) does not apply because the crime for which Defendant entered a plea of guilty, that being in possession of a firearm by a felon, does not qualify as a crime of violence and alternatively, the Defendant should be continued to be released on terms and conditions of pretrial release, pursuant to 18 U.S.C. § 3145(c). Defendant was present with his attorney, Mary Ellen Coleman and the government was present and represented through Assistant United States Attorney Tom Ascik. From the arguments of counsel for Defendant and the arguments of the Assistant United States Attorney and the records in this cause, the Court makes the following findings:

Findings. On June 9, 2015 a bill of information (#1) was issued charging Defendant with being in possession of a firearm after he had been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). On July 1, 2015, the undersigned held and inquiry, pursuant to Rule 11 of the Federal Rules of Criminal Procedure and accepted a plea of guilty of Defendant to that offense. At the end of the Rule 11 proceeding, the Court presented the issue of whether or not Defendant should now be detained, pursuant to 18 U.S.C. § 3143(a)(2).

Discussion. 18 U.S.C. § 3143(a)(2) provides as follows:

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless -
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; or
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

From an examination of the records in this cause, it appears Defendant has entered a plea of guilty to a violation of 18 U.S.C. § 922(g)(1). In this district and in this circuit, such an offense is considered to be a crime of violence. U.S. vs. Redmon, 3:06cr92 (J. Voorhees), U.S. vs. Allen, 409 F.Supp.2d 622 (D. Maryland 2006), United States vs. Moffitt, 527 F.Supp.2d 474 (W.D. N.C. 2006)

Counsel for Defendant argues that violation of 18 U.S.C. § 922 does not meet the definition of a crime of violence which is defined in 18 U.S.C. § 3156(a)(4) and further argues that decisions of the Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and the District of Columbia Court of Appeals have concluded that a violation of 18 U.S.C. § 922(g)(1) is not a crime of violence. Although a majority of the Circuit Courts have concluded that a violation of 18 U.S.C. § 922(g)(1) is not a crime of violence, the law in this district is clear that the offense is to be considered as a crime of violence and thus is one of the crimes that is referenced under 18 U.S.C. § 3142(f)(1)(A).

The undersigned made an inquiry of Assistant United States Attorney Tom Ascik as to whether or not there is going to be a recommendation that no sentence of imprisonment be imposed upon Defendant. Mr. Ascik advised the Court that such a recommendation could not be made in this matter. As a result of the plea of guilty, the undersigned cannot find there is a substantial likelihood that a motion for acquittal or new trial will be granted. Based upon the statement of Mr. Ascik, the Court cannot find that the attorney for the Government has recommended or will recommend that no sentence of imprisonment be imposed upon Defendant. It would thus appear that the undersigned is required to apply the factors as set forth under 18 U.S.C. § 3143(a)(2) which require the detention of Defendant.

In Defendant's written motion (#7), Defendant further contends that exceptional circumstances exists which would merit the continued release of Defendant, pursuant to 18 U.S.C. § 3145(c). That statute provides as follows:

(c) Appeal from a release or detention order. -
An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial ...

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