171 F.3d 617 (8th Cir. 1999), 97-4227, United States v. Smith

Docket Nº:97-4227.
Citation:171 F.3d 617
Party Name:UNITED STATES of America, Appellee, v. William Maurice SMITH, Appellant.
Case Date:March 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 617

171 F.3d 617 (8th Cir. 1999)

UNITED STATES of America, Appellee,

v.

William Maurice SMITH, Appellant.

No. 97-4227.

United States Court of Appeals, Eighth Circuit

March 24, 1999

Submitted Oct. 21, 1998.

Page 618

[Copyrighted Material Omitted]

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Thomas Perry Frerichs, Waterloo, Iowa, argued, for appellant.

Stephen J. Rapp, Cedar Rapids, Iowa, argued (Charles J. Williams, AUSA, Cedar Rapids, Iowa, on the brief), for appellee.

Before MCMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

HANSEN, Circuit J.

William Maurice Smith conditionally pleaded guilty to two firearm charges. He conditioned his plea on the right to appeal the district court's 1 denial of his motions to dismiss the indictment. Smith now appeals the denial of those motions. He also appeals one aspect of his sentence. We affirm.

I.

The facts underlying the current federal firearm charges occurred in 1996 when Smith, who was then twenty years old, bought a gun with a driver's license that listed his age as twenty-one. On November 17, 1996, Smith shot and wounded Lauralee Lorenson during an argument. The grand jury returned a three-count superseding indictment based on these events. Smith's motions to dismiss the indictment were denied by the district court. Smith then conditionally pleaded guilty to one count of making false representations in connection with the purchase of a firearm, see 18 U.S.C.A. § 922(a)(6) (West.Supp.1998), and one count of possessing a firearm after having been convicted of a misdemeanor involving domestic violence. See 18 U.S.C.A. § 922(g)(9). Smith was sentenced to 51 months in prison to be followed by a three year term of supervised release.

The predicate offense for Smith's § 922(g)(9) charge is an Iowa simple misdemeanor assault conviction. In 1994, Smith pleaded guilty to assault, see Iowa Code §§ 708.1; 708.2(4) (1994), involving an incident with Lorenson, the mother of his child and the victim of the later shooting involved in the current federal offense. The state court appointed counsel to represent Smith on the assault charge, but his counsel did not appear at his plea hearing on November 28, 1994. Following his counsel's failure to appear at the hearing, Smith signed a "Waiver of Right to Counsel" and pleaded guilty to simple misdemeanor assault. He was fined $100.

II.

We review de novo the district court's denial of Smith's motions to dismiss the indictment. See United States v. Nattier, 127 F.3d 655, 657 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1398, 140 L.Ed.2d 656 (1998). Smith challenges the application to his case of 18 U.S.C.A. § 921(a)(33), which defines a "misdemeanor crime of domestic violence," arguing that: 1) Iowa Code § 708.1, which defines assault, does not contain the required elements of: a) the use or attempted use of physical force, and b) a domestic relationship; and 2) he did not intelligently and knowingly waive his right to counsel at the underlying plea hearing as required by § 921(a)(33)(B)(i)(I). Smith also challenges the constitutionality of § 9201(a)(33), arguing it: 1) is vague and overbroad; and 2) violates equal protection. Finally, Smith argues that Article IV, Section 4 of the United States Constitution prevents application of U.S.S.G. § 2A2.2 to this case of domestic violence.

  1. Statutory Challenges to § 922(g)(9)

    1. Elements of Predicate Offense

    Congress enacted 18 U.S.C. § 922(g)(9) in 1996, providing: "It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to possess in or affecting

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    commerce, any firearm." Section 921(a)(33)(A)(ii) defines "misdemeanor crime of domestic violence" as one that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, ... [or] by a person with whom the victim shares a child." The government concedes that § 921(a)(33) requires the predicate misdemeanor crime to "ha[ve], as an element, the use or attempted use of physical force." (See Appellee's Br. at 6.) Smith contends that the predicate misdemeanor must also have, as an element, a domestic relationship between the perpetrator and the victim, and argues that his predicate offense of simple assault does not contain this element.

    In construing a statute, we look first to the plain meaning of the words of the statute. See Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 474, 139 L.Ed.2d 352 (1997). Only if the statute is ambiguous do we look to the legislative history to determine Congress's intent. See United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997). In the statute at issue, the singular term "element" modifies the phrase "the use or attempted use of physical force...." If Congress meant the predicate misdemeanor to have two elements, it would have used the plural form of "element." See United States v. Green, 902 F.2d 1311, 1312 (8th Cir.), cert. denied, 498 U.S. 943, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990). We find the language of the statute to be unambiguous, and look to the legislative history only to bolster our conclusion: "[C]onvictions for domestic violence-related crimes often are for crimes, such as assault, that are not explicitly identified as related to domestic violence." 142 Cong.Rec. S11872-01, *S11878 (1996) (statement of Sen. Lautenberg). In recognizing that domestic violence-related crimes often involve crimes which are not necessarily so designated, Congress evinced its intent that the predicate offense need not contain a domestic relationship as an element. Thus, we hold that while § 921(a)(33) requires proof of a domestic relationship, it requires the predicate misdemeanor to have only one element: the use or attempted use of physical force (or its alternative, the threatened use of a deadly weapon, a situation not here presented).

    Smith pleaded guilty to simple misdemeanor assault under Iowa Code § 708.2(4). The Iowa assault statute distinguishes between aggravated misdemeanor assaults, serious misdemeanor assaults, and simple misdemeanor assaults based on the level of intent and whether a dangerous weapon was involved. See Iowa Code § 708.2(1)-(4). All assaults are defined by reference to § 708.1, which defines "assault" as occurring when a person does any of the following:

    (1) Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another....

    (2) Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive....

    Thus, a generic assault in Iowa may include, as an element, placing another in fear of imminent physical contact. If Smith pleaded guilty to § 708.1(2), then he was not convicted of an offense that "has, as an element, the use or attempted use of force ." 18 U.S.C.A. § 921(a)(33)(A)(ii).

    When statutory language dictates that predicate offenses contain enumerated elements, we must look only to the predicate offense rather than to the defendant's underlying acts to determine whether the required elements are present. See United States v. Wright, 957 F.2d 520, 522 (8th Cir.) (construing United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(1)(i), which defines "crime of violence" as an offense that "has as an element, the use, attempted use, or threatened use of physical force" (emphasis added)), cert. denied, 506 U.S. 856, 113 S.Ct. 167, 121 L.Ed.2d 114 (1992). We may expand our inquiry under

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    this categorical approach to review the charging papers and jury instructions, if applicable, only to determine under which portion of the assault statute Smith was convicted. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

    This case is quite similar to Taylor, which involved a sentence enhancement under 18 U.S.C. § 924(e) for prior burglaries. The Supreme Court read § 924(e) as requiring the predicate burglary offense to contain the elements of generic burglary, precluding a court from looking to the defendant's underlying conduct. See Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143. The Court noted that the federal sentencing court could go beyond the mere fact of conviction, for example, and look to the charging papers and jury instructions to determine if the jury was required to actually find the elements of generic burglary in order to convict the defendant. Id. at 602, 110 S.Ct. 2143. The Supreme Court remanded Taylor because the Court could not determine, from the record before it, under which subsection of the Missouri burglary statute the defendant had pleaded guilty and been convicted. Id. On remand, the government produced the charging papers, which detailed the elements of the crimes to which the defendant had pleaded guilty, though the papers did not include a reference to the specific section of the state burglary statute. See United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991). On appeal from the remand, we held that it was appropriate under the Supreme Court's ruling in a case where the predicate convictions were the result of a guilty plea, to look to the charging papers to determine to which section of a statute a defendant pleaded guilty. See id. at 707-08. See also United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.) (looking to the information's specific allegations where the defendant pleaded guilty to a predicate act of burglary to determine if the predicate act was generic burglary under Taylor; district court can look to the "charging document as a whole"), cert. denied, --- U.S. ----, 119 S.Ct. 126, 142 L.Ed.2d 102 (1998).

    The state court complaint accused Smith of "commit[ting] an act which was intended to cause pain or injury to another, coupled with the...

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