U.S. v. Nobriga

• Decision Date: 20 May 2005
• Docket Number: No. 04-10169.,04-10169.
• Citation: 408 F.3d 1178
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred NOBRIGA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 1178 UNITED STATES of America, Plaintiff-Appellee,
v.
Fred NOBRIGA, Defendant-Appellant. No. 04-10169. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 2005. Filed May 20, 2005.

Page 1179

De Anna S. Dotson, Kapolei, Hawaii, for the defendant-appellant.

Edward H. Kubo, Jr., United States Attorney, and Wes Reber Porter, Assistant United States Attorney, District of Hawaii, Honolulu, Hawaii, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii, Helen Gillmor, District Judge, Presiding. D.C. No. CR-03-00209-HG.

Before: WARDLAW and BERZON, Circuit Judges, and FITZGERALD,^* District Judge.

PER CURIAM.

Fred Nobriga appeals the district court's denial of his motion to dismiss the indictment charging him with violating 18

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U.S.C. § 922(g)(9) by possessing a firearm after having been previously convicted of a "misdemeanor crime of domestic violence," as defined by 18 U.S.C. § 921(a)(33)(A)(ii). Nobriga also argues that his sentence violates the Sixth Amendment in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We reverse the district court's denial of Nobriga's motion to dismiss and therefore do not reach Nobriga's appeal of his sentence.

I

Nobriga was indicted in 2003 by a federal grand jury in Hawaii for being a person previously convicted of a "misdemeanor crime of domestic violence" in possession of a firearm. Section 921(a)(33)(A)(ii) defines that term as any misdemeanor 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, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The predicate offense at issue was Nobriga's conviction for Abuse of a Family or Household Member (AFHM), in violation of HAW. REV. STAT. § 709-906(1). Nobriga had pleaded no contest to AFHM in a Hawaii state court, and the court found Nobriga guilty "as charged."

Nobriga moved to dismiss the federal indictment, claiming that his underlying AFHM conviction was not for a "misdemeanor crime of domestic violence," and that 18 U.S.C. § 922(g)(9) was therefore inapplicable. The district court held that the Hawaii statute was not categorically a "misdemeanor crime of domestic violence," but that the charging documents, together with the judgment, demonstrated that Nobriga had pleaded to a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. § 921(a)(33)(A).

After the district court denied Nobriga's motion to dismiss, Nobriga entered into a plea agreement with the government, reserving the right to appeal the district court's denial of his motion to dismiss. Shortly thereafter, the district court conducted a Rule 11 colloquy, during which Nobriga stipulated that his 2000 AFHM conviction was for assaulting a "former girlfriend."¹ The district court sentenced Nobriga to twenty-seven months' imprisonment, three years of supervised release, and a "special assessment of $100." Nobriga timely appeals.

II

Nobriga's first challenge to the district court's denial of his motion to dismiss is controlled by our decision in United States v. Belless, 338 F.3d 1063 (9th Cir. 2003). There, we held that "[t]he phrase `physical force' in the federal definition at 18 U.S.C. § 921(a)(33)(A)(ii) means the violent use of force against the body of another individual." Id. at 1068. Because the Wyoming statute at issue also criminalized what we described as "rude or insolent touching," and because "the record does not reveal the conduct to which [Belless]

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pleaded and for which he was convicted," we could not "conclude that the trier of fact, the Wyoming judge in this case, necessarily found Belless guilty of conduct that, under a modified categorical approach, serves as a predicate offense." Id. at 1069.

As in Belless, HAW. REV. STAT. § 709-906(1) does not necessarily require a "violent use of force." In addition to making it unlawful "to physically abuse a family or household member," the statute also proscribes "refus[ing] compliance with the lawful order of a police officer," an offense that specifies no use of force, violent or otherwise. Consequently, as the district court held and the government recognizes, a conviction under section 709-906(1) does not categorically suffice to establish the requisite predicate offense.

Under the modified categorical approach derived from Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and recently reaffirmed in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), however, the record establishes that Nobriga necessarily pleaded guilty to a "violent use of force." Belless, 338 F.3d at 1068. As the district court concluded, the charging papers and the judgment of conviction make clear that Nobriga pleaded guilty to "physically abus[ing] a family or household member," and not to "refus[ing] compliance with a lawful order of a police officer." Hawaii law recognizes that the "physically abuse" prong requires, at a minimum, a reckless use of physical force. See State v. Eastman, 81 Hawai'i 131, 913 P.2d 57, 66 (1996); see also State v. Miller, 105 Hawai'i 394, 98 P.3d 265, 266 n. 1 (2004). "Recklessness" is an adequate mens rea to establish a "violent" use of force. See, e.g., United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir. 2003), cert. denied, ___ U.S. ___, 125 S.Ct. 863, 160 L.Ed.2d 781 (2005); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000). Nobriga's AFHM conviction was therefore for a "violent use of force." See Belless, 338 F.3d at 1068.

III

The harder issue is whether the victim of Nobriga's "violent use of force" had the domestic relationship to Nobriga required by § 921(a)(33)(A)(ii). Because Nobriga did not argue this relationship question before the district court, we review for plain error. See United States v. Tirouda, 394 F.3d 683, 688 (9th Cir.2005) ("Under the plain error doctrine, we correct an error where an objection was not interposed at trial only where the error (1) is plain, (2) affects substantial rights, and (3) `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" (quoting United States v. Jordan, 256 F.3d 922, 926 (9th Cir.2001))); see also United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

Nobriga's argument on appeal— that neither the Hawaii statute standing alone nor the judicially noticeable facts establish that the victim of his Hawaii offense had the domestic relationship to Nobriga required by § 921(a)(33)(A)(ii)—is well taken. For the reasons that follow, we are convinced that failing to grant Nobriga's motion to dismiss was plain error.

To satisfy the federal statute, the underlying state law offense must be committed (1) "by a current or former...