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United States v. Voisine

United States Court of Appeals, First Circuit

January 30, 2015


As Corrected January 31, 2015.

As Amended February 11, 2015.


Virginia G. Villa, Assistant Federal Defender, Federal Defender Office, for appellants.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Lynch, Chief Judge, Torruella and Stahl, Circuit Judges. TORRUELLA, Circuit Judge, Dissenting.


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LYNCH, Chief Judge.

The Supreme Court has directed us, in light of United States v. Castleman, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of " misdemeanor crimes of domestic violence," as defined in 18 U.S.C. § 921(a)(33)(A), even though the state statutes allowed conviction based on a recklessness mens rea. Armstrong v. United States, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir. 2013); United States v. Voisine, 495 F.App'x 101 (1st Cir. 2013) (per curiam). If so, then their motions to dismiss their federal charges for possessing firearms after such convictions, in violation of 18 U.S.C. § 922(g)(9), were properly denied.

Our answer is informed by congressional recognition in § 922(g)(9) of the special risks posed by firearm possession by domestic abusers. " Domestic violence often escalates in severity over time . . . and the presence of a firearm increases the likelihood that it will escalate to homicide . . . ." Castleman, 134 S.Ct. at 1408. It is also informed by the congressional choice in the federal sentencing scheme to honor each state's choice as to how to define its own crimes, through statutory text and judicial decision.

As we see it, this case turns on the unique nature of § 922(g)(9). That section is meant to ensure that individuals who engage in the " seemingly minor act[s]" that actually constitute domestic violence, like squeezing and shoving, may not possess a firearm. Castleman, 134 S.Ct. at 1412. This range of predicate acts is broader than that found in other federal prohibitions involving the use of physical force. Applying the teachings of Castleman, we find that Maine's definition of reckless assault fits within § 922(g)(9).

We affirm the denial of the motion to dismiss the indictment and information here. That means the conditional guilty pleas the defendants entered are valid and their sentences stand. The question is close and we rule narrowly.


A. Statutory Background

As the Supreme Court observed in Castleman, 18 U.S.C. § 922(g)(9) was enacted to close a loophole. " While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors." Castleman, 134 S.Ct. at 1409. No ban prevented those domestic abusers from possessing firearms, yet there is a " sobering" connection between domestic violence and homicide. Id. The " manifest purpose" of § 922(g)(9), the Lautenberg Amendment to the Gun Control Act of 1968, was to remedy the " potentially deadly combination" of " [f]irearms and domestic strife." United States v. Hayes, 555 U.S. 415, 426-27, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009).

Under § 922(g)(9), it is against federal law for any person " who has been convicted in any court of a misdemeanor crime of domestic violence" to " possess in or affecting commerce[] any firearm or ammunition." In turn, a " misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) " has, as an element, the use or attempted use of physical force . . . committed by a current or former spouse, parent, or guardian of the victim" or by a person in a similar domestic relationship with the victim.

The predicate offenses in these cases are convictions under Maine assault statutes.

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Me. Rev. Stat. Ann. tit. 17-A, § § 207(1)(A), 207-A(1)(A). Under Maine law, a " person is guilty of assault if[ t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person." Id. § 207(1)(A). A violation of § 207 constitutes misdemeanor domestic violence assault if the " victim is a family or household member." Id. § 207-A(1)(A).

Maine law explains that " [a] person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result." Id. § 35(3)(A). The statute goes on to give more meat to the " conscious disregard" definition. It refers to disregard of a risk, " when viewed in light of the nature and purpose of the person's conduct and the circumstances known to that person," that " involve[s] a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation." Id. § 35(3)(C).

B. Facts

William E. Armstrong III was convicted in 2002 and 2008 of assaulting his wife in violation of Maine's misdemeanor assault statutes, Me. Rev. Stat. Ann. tit. 17-A § § 207(1)(A), 207-A(1)(A). In May 2010, twenty-nine months after the last domestic assault conviction, the Maine State Police searched the Armstrong residence for drug paraphernalia and marijuana. They discovered six firearms and ammunition. The police notified the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which executed a search. That search uncovered only ammunition, but Armstrong later explained that he had arranged for a friend to remove the guns. ATF agents observed the guns at the friend's home.

Armstrong was arrested and federally charged with being a prohibited person in possession of a firearm, in violation of § 922(g)(9). The indictment listed Armstrong's 2008 domestic violence assault conviction as the predicate offense.

Stephen L. Voisine was convicted in 2003 and 2005 of assaulting a woman with whom he was in a domestic relationship, in violation of Maine's assault statute. In 2009, acting on an anonymous tip, state and local law enforcement officials arrested Voisine on the federal misdemeanor charge of killing a bald eagle in violation of 16 U.S.C. § 668(a). When conducting a background check, they discovered his 2003 misdemeanor simple assault. As Voisine had turned a rifle over to the police during the investigation, the criminal information charged him with violating § 922(g)(9) as well as § 668(a).

C. Procedural History

Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court's decision.[1]

We consolidated Armstrong and Voisine's cases. In a January 18, 2013 opinion, we affirmed the district court's decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 F.App'x at 102 (incorporating the reasoning from Armstrong as

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there were " no pertinent factual differences" distinguishing the two cases). The defendants had argued that a misdemeanor assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a " use of physical force," and, concordantly, not a " misdemeanor crime of domestic violence." Relying on United States v. Booker, 644 F.3d 12 (1st Cir. 2011), and United States v. Nason, 269 F.3d 10 (1st Cir. 2001), we held that § 922(g)(9) did not distinguish between violent and nonviolent convictions, and the statute included the offensive physical contact portion of the Maine statute within its definition of " physical force." Armstrong, 706 F.3d at 6; Voisine, 495 F.App'x at 101-02.

Second, the defendants argued that § 922(g)(9) violated the Second Amendment as applied to them. This argument was foreclosed by Booker, which denied an identical argument framed as a facial challenge. 644 F.3d at 22-26; see Armstrong, 706 F.3d at 7-8; Voisine, 495 F.App'x at 101.

The defendants petitioned for certiorari. On March 31, 2014, the Supreme Court granted their petitions, vacated the judgments, and remanded " for further consideration in light of United States v. Castleman." Armstrong v. United States, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.). In Castleman, the Court had addressed the issue of whether the phrase " use of physical force" in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. That issue had been the source of a circuit split. Castleman resolved the question in agreement with Nason, holding that " Congress incorporated the common-law meaning of 'force' -- namely, offensive touching -- in § 921(a)(33)(A)'s definition of a 'misdemeanor crime of domestic violence.'" Castleman, 134 S.Ct. at 1410. The Supreme Court left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court stated, " the Courts of Appeals have almost uniformly held that recklessness is not sufficient," and listed ten cases.[2] Id. at 1414 n.8. It then added, " But see United States v. Booker, 644 F.3d 12, 19-20 (C.A.1 2011)." Id. The footnote did not say Booker was wrong. It gave no further definition of recklessness. Nor did it account for the differences in the statutory sections being interpreted in the other cases cited.

This case comes to us following the Supreme Court's remand.


In construing § 922(g)(9)'s applicability to a given case, we use the " categorical approach." Under that approach the elements of the predicate offense (here, the Maine assault statute) must be identical to or categorically within the description of the subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.Ct. at 1413. Where, as here, the predicate statute is " divisible" into crimes with alternative sets of elements, we may consider whether the elements under which the defendant was convicted are still within the

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subsequent provision, an inquiry known as the " modified categorical approach." Id. at 1414. The government concedes that the record here of the state proceedings is too sparse to " discern under which prong of Maine's statute" the defendants were convicted, and they urge us against " resort[ing] to the modified categorical approach." For us to affirm, we must find that the Maine statute -- including the reckless acts it prohibits -- categorically fits within § 922(g)(9).

The defendants frame the issue as whether a reckless act can constitute a " use of physical force" and rely on cases interpreting statutes other than § 922(g)(9). We do not agree that is the proper way to frame the question. That framing is predicated on the notion that particular statutory language must be interpreted identically in different sections across the U.S. Code. To the contrary, context matters, as the Supreme Court demonstrated in Castleman itself. 134 S.Ct. at 1410-12. The question is whether Maine's definition of recklessness fits within § 921(a)(33)(A)'s phrase " use of physical force." Section 921(a)(33)(A) is a provision crafted in the unique context of domestic violence, and it should be so interpreted. Castleman, 134 S.Ct. at 1410-12 & n.4; Booker, 644 F.3d at 18-21.

This reframing of the question clarifies our approach to the two arguments raised by the defendants: that Castleman footnote 8 decides this case, and that Castleman's analysis of § 921(a)(33)(A) undermines our prior decisions. Castleman's emphasis on context reinforces, rather than undermines, our earlier decision.

A. Castleman Footnote 8

The defendants read too much into Castleman footnote 8, which expressly does not resolve the question before us. Nor is their argument made by reference to the cases cited for contrast in the footnote. Each of those cases[3] construes a different

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statutory definition, and all but one arose in a different context.

Footnote 8 begins by describing the issue as an open question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Supreme Court interpreted 18 U.S.C. § 16(a), the definition of the term " crime of violence." 543 U.S. at 8-10. Such a crime requires " use of physical force," and Leocal held that the term " use" suggests a mens rea higher than negligence, but it withheld judgment on whether recklessness is sufficient, Castleman, 134 S.Ct. at 1414 n.8; Booker, 644 F.3d at 19-20.

Considering context, section 16(a) is not analogous to the section which concerns us, § 922(g)(9). To begin, § 16(a) prohibits 'use of physical force against the person or property of another,' language crucial to the Supreme Court's holding in Leocal but absent from the definition at issue here. See Leocal, 543 U.S. at 8-10. Castleman itself distinguished the term " use of force" in § 16(a), a provision for undifferentiated violent crimes, from the term " use of physical force" in § 922(g)(9)'s domestic violence provision. " Domestic violence" is a " term of art" that " encompasses a range of force broader than that which constitutes 'violence' simpliciter," including " acts that might not constitute 'violence' in a nondomestic context." Castleman, 134 S.Ct. at 1411 & n.4. A " crime of violence," by contrast, " suggests a category of violent, active crimes." Id. at 1411 n.4 (quoting Johnson, 559 U.S. at 140) (internal quotation mark omitted). As the Supreme Court explained, a " 'squeeze of the arm [that] causes a bruise'" is " hard to describe as . . . 'violence'" within the meaning of § 16, but " easy to describe as 'domestic violence'" within the meaning of § 922(g)(9). Id. at 1412 (alterations in original) (quoting Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003)) (internal quotation marks omitted).

Unsurprisingly, the drafting history of § 922(g)(9) indicates that " Congress expressly rejected" the § 16(a) definition, instead developing the term " misdemeanor crime of violence" that was " 'probably broader' than the definition" in § 16. Booker, 644 F.3d at 19 (citing a statement by Sen. Lautenberg). And where Congress wanted to define a domestic violence crime as a § 16 crime of violence occurring in the domestic context, it has done so -- even in the same legislation that contained the Lautenberg Amendment. See, e.g., 8 U.S.C. § 1227(a)(2)(E). " That it did not do so here suggests, if anything, that it did not mean to." Castleman, 134 S.Ct. at 1412 n.6.

The only case cited in Castleman footnote 8 from the domestic violence context is one in which Congress elected to define the crime with reference to § 16. In Fernandez-Ruiz v. Gonzales, the Ninth Circuit considered whether a reckless misdemeanor could serve as a predicate " crime of domestic violence." 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc) (citing 8 U.S.C. § 1227(a)(2)(E)(i)). Unlike § 922(g)(9), however, the relevant statute in Fernandez-Ruiz defined " crime of domestic violence" as a " crime of violence" (referencing § 16) committed against someone in a domestic relationship with the perpetrator. Id. at 1124-25. The Ninth Circuit accordingly conducted a § 16 analysis, applying Leocal and cases from other circuits to reach its conclusion. Id. at 1127-32. But even that result did not follow so obviously from Leocal, as four judges dissented emphasizing

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the differences between domestic violence and other contexts. Id. at 1136 (Wardlaw, J., dissenting).

On remand of this case to us, the defendants' brief adds to the cases in the footnote by citing two other § 922(g)(9) cases, not mentioned in Castleman, which they say directly conflict with Booker. We disagree. In United States v. White, 258 F.3d 374 (5th Cir. 2001), the relevant predicate statute criminalized reckless " conduct that places another in imminent danger of serious bodily injury." Id. at 381. The court found that the statute did not require a completed " use of physical force," since it was satisfied by a risk of injury, and the statute extended beyond an " attempted use of force" because attempt liability requires specific intent rather than recklessness. Id. at 382-84. Rather than construing the phrase " use of physical force," as Booker did, White relied on principles of attempt liability to rule out reckless predicate crimes.

">In United States v. Howell, 531 F.3d 621 (8th Cir. 2008), also added by the defendants, the predicate statute criminalized reckless " conduct which creates a grave risk of death or serious physical injury to another." Id. at 624. The court found this provision to be a " catch-all provision applicable to innumerable factual situations," so a completed " use of physical force" is not always or ordinarily present. Id.

Simply put, we are aware of no case -- including the cases in Castleman footnote 8 -- in conflict with Booker's holding that a reckless misdemeanor assault satisfies § 922(g)(9)'s particular definition of a " misdemeanor crime of domestic violence." Rather, § 922(g)(9)'s unique context, as described in Castleman and supported by the legislative history, suggests that § 922(g)(9) should be interpreted more broadly than other provisions, including § 16.

B. Structure of Castleman

The defendants present a second argument, which is that Castleman's analytical approach to the term " use of physical force" means the conduct of neither defendant here could meet that standard. Castleman held that Congress intended to incorporate the common law meaning of " force" in § 921(a)(33)(A), the definitional provision for " misdemeanor crime of domestic violence." 134 S.Ct. at 1410. " [A]bsent other indication, 'Congress intends to incorporate the well-settled meaning of the common law terms it uses.'" Id. (quoting Sekhar v. United States, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)) (internal quotation mark omitted). As a result, the statutory term " physical force" is satisfied by " the degree of force that supports a common-law battery conviction." Id. at 1413. The parties agree that, under Castleman, the term " use of physical force" also incorporates the common law mens rea for battery.

The parties approach this as a generalized question. They disagree about whether reckless acts could or could not constitute batteries at common law, and each side marshals support for its view. See, e.g., Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (Va. 1921); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (Mass. 1893); 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(c)(2); 3 William Blackstone, Commentaries *120.

We decline the parties' invitation to define the mens rea of a common law battery independent of the interpretation Maine gives its own statute. Castleman explains that the term " use of physical force" includes " the type of conduct that supports a

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common-law battery conviction." 134 S.Ct. at 1411. Castleman also explains that Congress incorporated " the common-law meaning of 'force.'" Id. at 1410. Castleman holds that the term " use of physical force" includes both causing bodily injury and offensive contact. Defendants concede that reckless causation of bodily injury is a use of physical force. We see no reasoned argument that offensive physical contact does not similarly entail the use of force simply because it is inflicted recklessly as opposed to intentionally.

We follow the statutory scheme in evaluating whether a conviction under the Maine statute categorically counts as a " misdemeanor crime of domestic violence."

1. The Scope of a " Misdemeanor Crime of Domestic Violence"

As Castleman explained, § 922(g)(9) is a statute with a particular purpose: to ensure that domestic abusers convicted of misdemeanors, in addition to felonies, are barred from possessing firearms. 134 S.Ct. at 1408-12. " [B]ecause perpetrators of domestic violence are 'routinely prosecuted under generally applicable assault or battery laws,'" id. at 1411 (quoting Hayes, 555 U.S. at 427), we think Congress intended the firearm prohibition to apply to those convicted under typical misdemeanor assault or battery statutes. See id. at 1411, 1413. That encompasses assault statutes for those states that allow conviction with a mens rea of recklessness where recklessness is defined as including a degree of intentionality. A victim of domestic violence often encounters the perpetrator again, and a broader reading of § 922(g)(9)'s mens rea requirement better ensures that a perpetrator convicted of domestic assault is unable to use a gun in a subsequent domestic assault. If Congress had wanted to impose a higher mens rea, it could have done so explicitly, as it did in the immediately preceding section of the bill that established § 922(g)(9). Booker, 644 F.3d at 18 & n.5.

This view is confirmed by the legislative history of § 922(g)(9). Senator Lautenberg explained that § 922(g)(9) was a broad prohibition covering " any person convicted of domestic violence," without reference to a particular mental state. 142 Cong. Rec. S10377-01 (1996). Another senator made statements to the same effect. See id. Additionally, Senator Lautenberg described the law's application to scenarios without clear intent, in which domestic arguments " get out of control," " the anger will get physical," and one partner will commit assault " almost without knowing what he is doing." 142 Cong. Rec. S11872-01 (Sept. 30, 1996). Such conduct may not be " ...

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