Is the federal crime of being a felon in possession of a weapon a ...

[OSWALD]

Is the federal crime of being a felon in possession of a weapon a violent crime for purposes of the preventive detention sections of the 1984 Bail Reform Act, requiring denial of bail after a plea?
 
  Dustin Leroy Ingle entered a plea of guilty to the offense of being a felon in possession of a firearm, a federal crime. Ingle was previously convicted of an Oklahoma felony offense of unlawful possession of a controlled drug. After his initial appearance before a federal magistrate judge on the weapon possession charge he was released on an unsecured 10,000 bond under the supervision of the United States Probation Office. After he pled guilty without a plea agreement, the district court ordered that Ingle be detained immediately without bail pending sentencing, finding that being a felon in possession is a violent crime for purposes of the preventive detention law.

Question 2

Were Smith's due process rights violated when his probation officer added a condition of probation without a hearing and counsel?
 
  In 1995 Smith pled guilty to second degree burglary and third degree sexual assault in one case and to a violation of probation in the second case, based on the underlying offenses of being possession of narcotics with intent to sell and interfering with an officer. He was sentenced to a minimum term of four years imprisonment, followed by five years probation. The original conditions of the defendant's probation included no contact with the victim, compliance with a standing criminal restraining order, substance abuse evaluation, and treatment as deemed appropriate. While Smith was incarcerated, his probation officer modified his probation to include participation in a sex offender treatment program and Smith signed a copy of the amended condition. After release, Smith's probation was revoked and he was reincarcerated for twice showing up late for his sex offender therapy sessions.
  What will be an ideal response?

[AmberC1996]

Answer to Question 1

No
The decision is significant because the preventive detention sections of the Bail Reform Act have different consequences for defendants at different stages of the criminal justice process: awaiting trial, pending sentencing, and pending appeal. The Act contemplates varying levels of scrutiny for defendants as they proceed through the court system. Unlike ordinary bail determinations, where the purpose is to reasonably assure the appearance of the person and the safety of others and the community, when a crime of violence is involved, a judicial officer must hold a hearing on motion of the government to determine if any conditions would permit the safe release of the charged defendant. Pending sentencing, the presumption is that a defendant will be detained. Most defendants, however, may be released upon a showing by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community.. In contrast, a defendant found guilty of a violent crime and is awaiting sentence must be detained unless a motion for a new trial is likely, or a prosecutor recommends no imprisonment and there is clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community. The decision does not depend on the specifics of Ingle's case, but on a categorical or general meaning of the definition of a crime of violence for purposes of the preventive detention law. Of the five factors that determine whether a crime is a crime of violence, three are applicable: a felon in possession is a felony, presents some risk of physical force being used against another, and that risk results from the nature of the offense. The last two factors, categorical risk and substantial risk, do not meet the statutory criteria. Concerning the categorical nature of the crime, felon weapon possession offenses apply to persons with greatly diverse propensities and previously convicted of a wide range of conduct. Not all felons are potentially more violent than non-felons. Numerous felonies involve economic crimes or regulatory offenses which, while serious, do not entail a substantial risk of physical force. And ex-felons have the same motives as lawful possessors of firearms to possess a firearm-self-defense, hunting, gun collecting, and target practice. Accordingly, we conclude that a felon-in-possession offense under the preventive detention law is not inherently a crime of violence. For similar reasons, the mere possession of a firearm by a convicted felon does not create a substantial risk that physical force will be used against the property or person of another

Answer to Question 2

No
Over the past seventy years, the United States Supreme Court has expanded the protections afforded a defendant regarding the right to counsel and the right to a court hearing in criminal proceedings. The Supreme Court also has established certain minimum procedural protections for individuals on parole and probation, including a hearing before parole or probation is revoked. Smith

[OSWALD]

Thanks

[AmberC1996]

Welcome