In Evans v. Zych, No. 09--1094 (6th Cir. July 12, 2011) (published), the panel of Judges Martin, Suhrheinrich, and Kethledge provides a broad overview of the various definitions of "crime of violence" (with a little "violent felony" thrown in for good measure).
Issue and Holding:
Petitioner challenged the classification of his convictions for violating 26 U.S.C. § 5861(d) and 26 U.S.C. § 5861(e) as “crimes of violence” under 18 U.S.C. § 924(c)(3) for purposes of 18 U.S.C. § 4042(b), which requires BOP to notify state, tribal, and local law enforcement prior to the release of a person with a crime-of-violence conviction. Issue of first impression. Court concluded that offenses of unlawful possession and transfer of a firearm, under 5861, are not crimes of violence under 924(c)(3).
Mootness:
Petitioner's claim was not moot, even though he had been released, because the petitioner would remain subject to the notification provision of 4042(b) for the duration of his supervised release. And BOP is the entity that classified the offenses as crimes of violence and BOP retains the power to reclassify the offenses.
Crime-of-Violence Definitions:
Court looks at definitions of "crime of violence" for sections 4042(b), 924(c)(3), 16, 924(e)(2)(B), and USSG 4B1.2(a). Also looks at circuit split on issue. Concludes that convictions under 26 U.S.C. 5861(d) and (e) are not crimes of violence for purposes of 924(c)(3) and do not require notification under 4042(b).
Interesting points include the Court's discussion of United States v. Hawkins, 554 F.3d 615 (6th Cir. 2009): possession of a sawed-off shotgun is a crime of violence for guideline purposes, but not a violent felony for ACCA purposes (see United States v. Amos, 501 F.3d 524 (6th Cir. 2007)). Court also recognizes that 924(c)(3) is "essentially identical" to 16. (Similar recognition of parallel nature of 4B1.2 and ACCA in United States v. Bartee.)
