U.S. v. Barnes

• Citation: 295 F.3d 1354
• Decision Date: 23 July 2002
• Docket Number: No. 01-3048.,01-3048.
• Parties: UNITED STATES of America, Appellee, v. John Donald BARNES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1354

295 F.3d 1354

UNITED STATES of America, Appellee, v. John Donald BARNES, Appellant.

No. 01-3048.

United States Court of Appeals, District of Columbia Circuit.

Argued April 18, 2002.

Decided July 23, 2002.

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Appeal from the United States District Court for the District of Columbia (No. 00cr00295-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for the appellant. A. J. Kramer, Federal Public Defender, was on brief. Gregory L. Poe, Assistant Federal Public Defender, entered an appearance.

Jeannie S. Rhee, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese III and Barry Wiegand, Assistant United States Attorneys, were on brief.

Before: SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Dissenting opinion filed by Circuit Judge SENTELLE.

KAREN LeCRAFT HENDERSON, Circuit Judge:

John D. Barnes (Barnes) appeals his conviction under 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess firearms or ammunition. Barnes challenges whether his 1998 assault conviction under D.C.Code § 22-504(a) constitutes a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33)(A) because section 22-504(a) does not include as an express element of the offense any relationship between the offender and the victim. Our sister circuits that have addressed this question have rejected Barnes's reading of section 921(a)(33)(A). It is an issue of first impression for us. Barnes also raises several constitutional challenges to his firearms conviction. While section 921(a)(33)(A) is not a paradigm of precise draftsmanship, we nonetheless join the other circuits in concluding that section 921(a)(33)(A) does not require the predicate "misdemeanor crime of domestic violence" to contain as an express element a relationship between the offender and his victim.

I.

On August 5, 1997 Barnes was charged in D.C. Superior Court with assault under D.C.Code § 22-504(a).¹ The charging information alleged that on or about July 21, 1997 Barnes unlawfully assaulted Keisha Ellis, who, Barnes ultimately acknowledged, is his son's mother. See Charging Information in No. M-11747-97; January 14, 1998 Transcript in No. M-11747-97 at 16. After pleading guilty to the charge, Barnes was sentenced to a prison term of 180 days, execution of which was suspended on the condition of a one-year period of probation. The judgment and commitment/probation order required Barnes to observe standard conditions of probation and, in particular, to enroll in and complete the local court's domestic violence intervention program. See May 5, 1998 Judgment and Commitment Order at 1.

On August 17, 2000 an officer of the Metropolitan Police Department observed a vehicle being driven by Barnes. A paper trash bag obscured the right rear vent window. See 8/22/00 Tr. at 6. Believing that the car was stolen, the officer made a traffic stop and ran a search on Barnes's driver's license. The search revealed that he did not have a valid license. Upon placing Barnes under arrest for driving without a permit, the police officer conducted a search and discovered that Barnes had two .45 caliber bullets in his left pocket. See 8/22/00 Tr. 6-7. Another officer, who arrived at the scene before Barnes's arrest, searched the car and found a loaded and operable Sig Sauer .45 caliber pistol underneath the driver's seat. After a records check revealed that Barnes had been convicted of assault under D.C.Code § 22-504(a), see D.C. Superior Court Case No. M-11747-97, Barnes was charged with the unlawful and knowing receipt and possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(9). See Information in Cr. No. 00-295. On October 6, 2001 pursuant to a plea agreement, Barnes entered a conditional guilty plea to the one-count criminal information. In accordance with Fed. R.Crim.P. 11(a)(2), his plea agreement explicitly reserved his right to challenge whether his May 5, 1998 assault conviction constituted a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33)(A). Plea Agreement in United States v. Barnes, Cr. No. 00-0295 at 2.

On February 1, 2001 Barnes filed a brief in district court, raising the statutory claim explicitly reserved in his plea agreement, see February 1, 2001 Defendant's Memorandum of Law (App. 20-58), along with an unopposed motion to supplement that claim with several constitutional arguments. See February 1, 2001 Defendant's Unopposed Motion to Supplement (App. 16-19). Barnes maintained that his assault conviction under D.C.Code § 22-504(a), which "does not include the relational element set forth in 18 U.S.C. § 921(a)(33)(A)," does not qualify as a "misdemeanor crime of domestic violence" under section 922(g)(9). February 1, 2001 Defendant's Memorandum of Law at 3-6 (App. 22-25). He also claimed that his conviction violated "principles of equal protection contained in the Due Process Clause of the Fifth Amendment" and that section 922(g)(9), read in conjunction with 18 U.S.C. § 921(a)(33)(A), was "unconstitutionally vague." Id. at 6-7. The government opposed Barnes's claims. See February 27, 2001 Government Memorandum of Law (App. 59-66).

On March 19, 2001 the district court held that Barnes's "conviction in the Superior Court of the District of Columbia in Criminal Case No. M-11747-97 for simple assault under D.C.Code § 22-504 constitutes a `misdemeanor crime of domestic violence' within the meaning of 18 U.S.C. § 921(a)(33)(A) and can thus serve as a predicate for conviction under 18 U.S.C. § 922(g)(9)." March 19, 2001 Order at 1 (App. 76). Regarding the statutory question, the district court adopted the reasoning of the First and Eighth Circuits, stating that "[h]ad Congress intended to require the prosecution to prove as elements of the offense both the use of force and the relationship of the defendant to the victim, it surely could have done so by using the plural, `elements,' rather than the singular, `element,' when writing § 921(a)(33)'s definition of a misdemeanor crime of domestic violence." See March 19, 2001 Memorandum Opinion at 4 (citing United States v. Meade, 175 F.3d 215, 218-20 (1st Cir.1999), and United States v. Smith, 171 F.3d 617, 619-20 (8th Cir.1999)). The district court also rejected Barnes's constitutional challenges. See March 19, 2001 Memorandum Opinion at 7-11. On April 17, 2001 the district court sentenced Barnes to a term of imprisonment of twelve months and one day, followed by two years' supervised release as well as a special assessment of $100. 4/17/01 Tr. 7. Barnes filed a timely notice of appeal and the district court stayed execution of the sentence pending appeal.

II.

Because the district court's ruling involved solely questions of law, our review is de novo. See Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999) (citations omitted); United States v. Popa, 187 F.3d 672, 674 (D.C.Cir.1999) (citations omitted) (first amendment challenge subject to de novo review).

A. Elements of "Misdemeanor Crime of Domestic Violence"

In 1996, the Congress amended the Gun Control Act of 1968, 18 U.S.C. § 922 (1994), by providing that:

It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence,... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate commerce.

18 U.S.C. § 922(g)(9). Section 921 of Title 18, entitled "Definitions," provides in pertinent part:

the term "misdemeanor crime of domestic violence" means an offense that —

(i) is a misdemeanor under Federal or State law; and

(ii) 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 cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim

18 U.S.C. § 921(a)(33)(A).²

Barnes asserts that the definition of "misdemeanor crime of domestic violence" set forth in section 921(a)(33)(A) requires the predicate offense to "contain, `as an element,' not only the `use or attempted use of physical force ...' but also that the use of force be `committed by' a person who maintained a domestic relationship with the victim, as specifically defined in the statute." See Barnes's Br. at 7-8. The government responds that "the text and legislative purpose" demonstrate that section 921(a)(33)(A) "does not require that the necessary domestic relationship be established as an element of the predicate offense." Gov't Br. at 12-13.

In construing a statute, we look first for the plain meaning of the text. If the language of the statute has a "plain and unambiguous meaning," our inquiry ends so long as the resulting "statutory scheme is coherent and consistent." See United States v. Wilson, 290 F.3d 347, 352 (D.C.Cir.2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (internal quotations omitted)). Whether statutory language is plain depends on "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (quoting Robinson, 519 U.S. at 341, 117 S.Ct. at 843).

Both sides agree that D.C.Code § 22-504(a) constitutes a "misdemeanor under ... State Law" within the meaning of section 921(a)(33)(A)(i). Barnes and the government also agree that section 921(a)(33)(A)(ii) requires that a "misdemeanor crime of domestic...