Section 922(a)(1)(A) : Section 922(a)(1)(A) of Title 18 forbids any unlicensed person to engage in the business of importing, manufacturing or dealing firearms or, in the course of such business, to ship, transport or receive any firearm in interstate commerce. Because, as the government concedes, the actual, threatened or attempted use of force is not an element of § 922(a)(1)(A), it may qualify as a "crime of violence" only if the offense "by its nature" involves a substantial risk that physical force may be used "in the course of committing the offense." 18 U.S.C. § 3156(a)(4)(B).
The government acknowledges that no reported case holds that a violation of § 922(a)(1)(A) qualifies as a crime of violence under the Bail Reform Act. Nonetheless, the government asks the Court to construe 922(a)(1)(A) as a crime of violence by engaging in a fact-specific examination of the allegations against Carter and the aggravating factors involved with the particular guns Carter is alleged to have brought into Rochester.
For the reasons set forth earlier in this decision, the Court can not engage in this "fact-specific" approach. A violation of § 922(a)(1)(A) is either a crime of violence for all who stand charged with the offense or for none who are charged with the offense.
Using the "categorical approach" model, the Court must determine whether the generic offense of unlicensed dealing or importation of firearms across state lines is a crime which by its nature involves a substantial risk that physical force may be used in the course of committing the offense. In asking the Court to answer that inquiry in the affirmative, the government points to cases which have held that the offense of a felon in possession of a firearm (18 U.S.C. § 922(g)) qualifies as a crime of violence under the Bail Reform Act. See e.g. United States v. Washington, 907 F. Supp. at 485 (felon in possession crime is a crime of violence sufficient to justify pretrial detention hearing); United States v. Sloan, 820 F. Supp. 1133, 1136 (S.D. Ind. 1993)(same); United States v. Aiken, 775 F. Supp. at 857 (same); United States v. Johnson, 704 F. Supp. at 1399 (same). All of these cases rely on the same basic rationale: if a convicted felon possesses a firearm, there is a substantial risk, based on his previous serious criminal conduct, that the felon will possess the firearm for the purpose of using it to commit an act of violence. Moreover, the fact that the "felon in possession" crime is a continuing offense seems to be central to the reasoning of those courts that hold it to be a crime of violence. "There is an increased risk that a criminally-inclined individual is more likely to use a firearm already in his possession to commit a crime." United States v. Washington, 907 F. Supp. at 485. (emphasis added).
While many courts have held that the crime of being a felon in possession of a firearm is a crime of violence, there are other courts which disagree. See e.g. United States v. Doe, 960 F.2d 221, 222 (1st Cir. 1992)(922(g) is not a crime of violence) United States v. Gloster, 969 F. Supp. 92, 95 (D.D.C. 1997)(same); United States v. Powell, 813 F. Supp. 903, 908 (D.Mass 1992)(same). The Second Circuit has not yet ruled on the issue. For purposes of deciding the instant case, however, I need not determine whether § 922(g) (felon in possession) is a crime of violence. For even assuming that it is, the generic offense of being an unlicensed importer or dealer of legally acquired firearms presents far different risks of physical harm than the type of risks relied on by courts which hold § 922(g) to be a crime of violence.
In United States v. Phillips, 1989 U.S. Dist. LEXIS 15453, 1989 WL 156198 (D. Mass.) aff'd, 732 F. Supp. 255 (D. Mass. 1990), the Court faced virtually the same issues presented in the instant case. The defendant in Phillips was charged with violating 18 U.S.C. § 922(a)(3)(causing the transportation or receipt of firearms across state lines without being a licensed firearm dealer) and § 922(a)(5)(causing an unlicensed out-of-state firearms dealer to transport firearms across state lines). These offenses, like § 922(a)(1)(A), are not continuing possessory offenses involving prior felons, but rather make unlawful an unlicensed individual or business from transferring, selling, trading or delivering firearms across state lines. As here, the government moved for detention in Phillips, claiming the firearm offenses were crimes of violence under the Bail Reform Act. After determining that the statutes must be examined under the "categorical approach" to determine whether they qualify as crimes of violence, the Magistrate Judge held that the firearm offenses found in § 922(a)(3) and (a)(5) were "fundamentally different" than the felon in possession offense:
The legislative purpose behind enacting these crimes was not so much that there was a danger of violence in the act of transportation or receipt; rather, Congress was attempting to stem the flow of illicit weapons because they posed a danger after they had been transported and received. In other words, the crimes set forth in 18 U.S.C. § 922(a)(3) and (5) do not, "by their nature", involve  a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (Emphasis supplied). Rather, the nature of the crimes may be that they involve such a substantial risk after the offense, i.e. transportation, delivery, receipt, are complete, but there is nothing in the legislative history to indicate that Congress was concerned with violence being committed by non-felons while in the process of transporting weapons from state to state; what is plain is that Congress sought to regulate the interstate transportation of weapons because of the danger which Congress perceived would exist after the transportation and delivery.
Id. at *5 (emphasis supplied).
In determining that § 922(a)(3) and 922(a)(5) do not charge crimes of violence, the Magistrate Judge in Phillips also addressed the statutory requirement that to qualify as a "crime of violence" the "substantial risk" of physical force be present "in the course of committing the offense ". 18 U.S.C. § 3156(a)(4)(B)(emphasis supplied). As here, the government in Phillips argued that because the imported guns could potentially end up in the hands of individuals who use them in crimes involving physical force, the firearms offenses were crimes of violence. In rejecting that argument, the Court held:
The Government's analysis would read the phrase "in the course of committing the offense" right out of the statute. I would agree that it can be inferred that the guns were brought to Massachusetts for the purpose of being carried or used; however, the "substantial risk that physical force against the person or property of another may be used" is not present "in the course of committing" the offense of transportation and receipt. The "substantial risk" exists not during the course of committing the offenses but rather after the transportation and receipt are complete.