U.S. v. Booker

• Decision Date: 02 May 2011
• Docket Number: 09–2302.,Nos. 09–1810,s. 09–1810
• Citation: 644 F.3d 12
• Parties: UNITED STATES of America, Appellee,v.Russell E. BOOKER, Defendant, Appellant.United States of America, Appellee,v.Michael Wyman, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

644 F.3d 12

UNITED STATES of America, Appellee,

v.Russell E. BOOKER, Defendant, Appellant.United States of America, Appellee,

v.Michael Wyman, Defendant, Appellant.

Nos. 09–1810

09–2302.

United States Court of Appeals, First Circuit.

Heard Dec. 7, 2010.Decided May 2, 2011.

Virginia G. Villa, Assistant Federal Defender, for appellants.Renée M. Bunker, Assistant U.S. Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellees.Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.LIPEZ, Circuit Judge.

Appellants Russell Booker and Michael Wyman were convicted under 18 U.S.C. § 922(g)(9), a law that prohibits individuals convicted of a “misdemeanor crime of domestic violence” from possessing, shipping, or receiving firearms. The appellants' convictions under § 922(g)(9) each rested on a prior misdemeanor offense under Maine's simple assault statute. In this consolidated appeal, the appellants press two primary arguments. First, they contend that only an intentional offense can qualify as a “misdemeanor crime of domestic violence” within the meaning of § 922(g)(9), and therefore the fact of a conviction under Maine's undifferentiated assault statute, which may be violated “intentionally, knowingly, or recklessly,” cannot alone establish the commission of a predicate domestic violence offense under § 922(g)(9). Second, the appellants argue that § 922(g)(9) unconstitutionally abridges their Second Amendment right to bear arms.¹ After careful consideration of each of these arguments, we find them unpersuasive. Accordingly, we affirm.

I.

In describing the facts underlying Russell Booker's and Michael Wyman's convictions, we rely on the versions of the facts agreed to by each defendant at his change-of-plea hearing and, to a limited extent, on state court records proffered by the government.²

A. Russell Booker

In 1998, Russell Booker pled guilty in the district court in Skowhegan, Maine, to one count of simple assault against his then-wife, Cheryl Booker. Tracking the language of Maine's assault statute, Me.Rev.Stat. Ann. tit. 17–A, § 207, the criminal complaint alleged that Booker “did intentionally, knowingly, or recklessly cause bodily injury or offensive physical contact” to his wife. Booker was sentenced to a term of 364 days' incarceration, all but fourteen days of which was suspended, and a year's probation. In addition, the court fined Booker $570, ordered that he complete a domestic violence program, and forbade him any contact with his wife until both she and a domestic violence counselor approved contact in writing.

Eight years later, in 2006, Booker accidentally shot a hunting companion with a .50–caliber black-powder rifle while deer hunting. Officers from the Maine Warden Service, who were called to investigate, questioned both Booker and his injured companion. In the course of that questioning, the officers learned that Booker was an avid hunter and owned a number of firearms. Based on this information and the record of Booker's prior domestic assault conviction, the federal Bureau of Alcohol, Tobacco, and Firearms obtained a search warrant for Booker's residence. Federal officers executed the warrant and found seven firearms in a gun case in Booker's home.

In January 2008, a federal grand jury indicted Booker on two counts of knowing possession of a firearm by an individual convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Booker pled not guilty. He proceeded to file a series of motions to dismiss the indictment, arguing, inter alia, that (1) since Maine's simple assault statute reaches reckless as well as intentional conduct, a conviction pursuant to the statute does not necessarily involve a sufficient mens rea to qualify as a predicate “misdemeanor crime of domestic violence” within the meaning of § 922(g)(9); and (2) § 922(g)(9)'s restriction on individual possession of firearms violates the Second Amendment. The district court denied each of Booker's motions. After the Supreme Court issued its opinion in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), Booker moved for reconsideration of his argument for dismissal under the Second Amendment, which the court again denied.

In September 2008, Booker entered into a conditional plea agreement. He reserved the right to appeal a number of the district court's orders, including those disposing of his motions to dismiss the indictment. Following a change-of-plea hearing, the court accepted Booker's conditional plea. In June 2009, the district court entered judgment and sentenced Booker to three years' probation and a $1000 fine.

B. Michael Wyman

In 2002, Michael Wyman pled guilty in the Waldo County Superior Court to simple assault against his live-in girlfriend, Betsy Small. The criminal complaint, like the complaint filed in Booker's assault case, alleged that Wyman “did intentionally, knowingly, or recklessly cause bodily injury or offensive physical contact” to Small. The court sentenced Wyman to seventy-two hours' incarceration in county jail and imposed a $10 fine.

Roughly six years later, in 2008, Wyman again ran afoul of the law. Wyman and Small were in the process of breaking off their relationship and had arranged for Small to stop by Wyman's house to pick up her belongings. Small arrived with three friends, her fourteen-year-old son, and an infant daughter. The presence of Small's friends angered Wyman, who emerged from the house intoxicated, yelling, and carrying a loaded shotgun. After Wyman fired the gun into the trees, Small and her companions quickly departed.

Wyman called 9–1–1 and reported that he had fired a gun at the back of his house to encourage Small and her friends to leave. Two county sheriffs were dispatched to Wyman's house, where Wyman readily admitted to firing the shotgun and was placed under arrest. Before they left, Wyman asked one of the sheriffs to stoke his wood stove and turn off the lights in his house. Inside the house, the sheriff noted a gun rack containing several firearms, and Wyman identified the shotgun that he had used to drive off Small and her friends. The sheriff secured and seized the shotgun.

In August 2008, a federal grand jury indicted Wyman on a single count of knowing possession of a firearm by an individual convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Wyman pled not guilty, and filed a motion to dismiss the indictment on grounds identical to those asserted by Booker: that (1) a conviction pursuant to Maine's simple assault statute, which reaches reckless as well as intentional conduct, does not necessarily involve a sufficient mens rea to categorically qualify as a “misdemeanor crime of domestic violence” under § 922(g)(9); and (2) § 922(g)(9)'s prohibition on possession of firearms is in derogation of the Second Amendment. The district court denied the motion.

Wyman entered into a conditional plea agreement in March 2009, reserving his right to appeal the district court's order denying his motion to dismiss the indictment. In September 2009, the court entered judgment and sentenced Wyman to incarceration of a year and one day, with three years' supervised release to follow.

C. Appeal and Consolidation

Booker and Wyman each timely appealed his conviction under 18 U.S.C. § 922(g)(9). The appeals were argued separately, but, because the appellants have raised identical issues in challenging their convictions, we now consolidate their appeals for purposes of this opinion.

II.

A. The Lautenberg Amendment

The statutory provision under which Wyman and Booker were convicted, 18 U.S.C. § 922(g)(9), was enacted in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997. Known commonly as the Lautenberg Amendment to the Gun Control Act of 1968 (or simply the “Lautenberg Amendment”), the provision makes it “unlawful 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.”

With its enactment of the Lautenberg Amendment, Congress recognized a problem of significant national concern in the combination of domestic violence and guns, and saw the existing law as insufficiently protective of its victims. See, e.g., 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg) (noting national statistics reporting 150,000 domestic violence incidents involving a gun each year). Previously, federal law prohibited possession of firearms only for individuals who had been convicted of a felony. United States v. Hartsock, 347 F.3d 1, 5 (1st Cir.2003). Congress concluded that the focus on felony convictions left guns in the hands of a large number of domestic abusers who were convicted of lesser crimes, often due to some combination of plea bargaining, “[o]utdated or ineffective laws [that] treat domestic violence as a lesser offense,” and lack of cooperation from victims. 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Feinstein). Through the Lautenberg Amendment, Congress sought to “close this dangerous loophole,” id., and “establish[ ] a policy of zero tolerance when it comes to guns and domestic violence,” 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg).

The provision defines a “misdemeanor crime of domestic violence” to be an offense that (1) “is a misdemeanor under Federal, State, or Tribal law,” (2) “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and (3) is “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.” 18 U.S.C. §...