U.S. v. Hays, 07-8039.

• Decision Date: 20 May 2008
• Docket Number: No. 07-8039.,07-8039.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Daniel HAYS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

526 F.3d 674

UNITED STATES of America, Plaintiff-Appellee, v. Steven Daniel HAYS, Defendant-Appellant.

No. 07-8039.

United States Court of Appeals, Tenth Circuit.

May 20, 2008.

David E. Johnson, Research and Writing Specialist, Office of the Federal Public Defender, Denver, CO, (Raymond P. Moore, Federal Public Defender, and Robert R. Rogers, Assistant Federal Public Defender, Cheyenne, WY; and Vicki-Mandell-King, Assistant Federal Public Defender, Denver, CO, with him on the briefs), for Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (John R. Green, Acting United States Attorney, District of Wyoming, with him on the briefs), Casper, WY, for Plaintiff-Appellee.

Before McCONNELL, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

On September 22, 2006, Steven Daniel Hays was indicted under 18 U.S.C. §§ 922(g)(9) and 924(a)(2) for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. His prosecution was predicated on a prior conviction under Wyoming's "simple assault; battery" statute. WYO. STAT. ANN. § 6-2-501(b). Mr. Hays filed a motion to dismiss the indictment, contending that the underlying conviction was not a crime of domestic violence as defined by federal law. When the district court denied the motion, Mr. Hays conditionally pled guilty, reserving his right to appeal. He was sentenced to 18 months in prison and 3 years of supervised release. On appeal, he contends the district court erred in denying his motion. We agree and reverse.

I.

On March 27, 2003, Mr. Hays was issued a misdemeanor citation for violating Wyoming law. The citation stated, in part, that "[t]he defendant did unlawfully commit the following offenses against the peace and dignity of the State of Wyoming, County of Fremont[:] Battery — Under Domestic Violence Act in violation of W.S. 6-2-501." Rec., vol. I, doc. 15 at Def. Exh. A. Neither the citation nor the subsequent judgment in the case described the factual circumstances that led to this conviction. Id. at Def. Exh. B.

On September 22, 2006, Mr. Hays was federally indicted under §§ 922(g)(9) and 924(a)(2) for possession of a firearm after having been previously convicted of a misdemeanor crime of domestic violence. A "misdemeanor crime of domestic violence" is defined as an offense that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. . . ." 18 U.S.C. § 921(a)(33)(A). Under the Wyoming statute at issue here, however, a person may be convicted of simple battery "if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another." WYO. STAT. ANN. § 6-2-501(b). Mr. Hays contends that mere touching is not the type of "physical force" contemplated by the federal statute, and that his predicate conviction is therefore inadequate to support the charge in the indictment.

The district court denied Mr. Hays' motion to dismiss the indictment, concluding that a person cannot make physical contact of a `rude, angry, or insolent' nature without some level of physical force. Therefore, under the plain meaning rule, the `unlawful [ ] touch[ing] of another in a rude, insolent or angry manner' made illegal by the Wyoming battery statute satisfies the `physical force' requirement of § 921(a)(33)(A)(ii), which is to be applied to § 922(g)(9).

Rec., vol. I, doc. 22, at 10 (citation omitted). Mr. Hays appeals this determination.¹

II.

We must decide whether Wyoming's battery statute satisfies the "use of physical force" element required by § 921(a)(33)(A)(ii)'s definition of a misdemeanor crime of domestic violence. We review this question of statutory interpretation de novo. United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003).

In cases like this one, where the relevant federal statute refers to the "elements" of the underlying state conviction, we apply a "categorical approach" when assessing the nature of the prior conviction. See United States v. Romero-Hernandez, 505 F.3d 1082, 1085 (10th Cir. 2007); United States v. Martinez-Hernandez, 422 F.3d 1084, 1086-87 (10th Cir. 2005). Under the categorical approach, we "are limited to examining the statutory elements of the [prior] crime. . . ." United States v. Zamora, 222 F.3d 756, 764 (10th Cir.2000) (internal quotations and citations omitted).

Even the categorical approach, however, permits courts to look beyond the statute of conviction under certain circumstances. When the underlying statute reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the resulting ambiguity by consulting reliable judicial records, such as the charging document, plea agreement, or plea colloquy.

Martinez-Hernandez, 422 F.3d at 1086. See also Romero-Hernandez, 505 F.3d at 1086; United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005). Such review does not involve a subjective inquiry into the facts of the case, but rather its purpose is to determine "which part of the statute was charged against the defendant and, thus, which portion of the statute to examine on its face." United States v. Sanchez-Garcia, 501 F.3d 1208, 1211 (10th Cir.2007) (internal quotation and citation omitted).

In applying the categorical approach to this case, we begin by looking at the text of the federal statute. Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) ("Our analysis begins with the language of the statute."); Sanchez-Garcia, 501 F.3d at 1212 ("To answer this question, we start with the plain language of § 16(b). . . ."); McGraw v. Barnhart, 450 F.3d 493, 498 (10th Cir.2006) (same). Mr. Hays was convicted under 18 U.S.C. § 922(g)(9) which states:

"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 or foreign commerce."

Id. (emphasis added). Section 921(a)(33)(A), in turn, states that the term "misdemeanor crime of domestic violence" means an offense that:

(i) is a misdemeanor under Federal, State, or Tribal 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 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[.]

Id. (emphasis added). This appeal turns on the interpretation of the term "physical force."

Our "primary task" in interpreting statutes "is to determine congressional intent using traditional tools of statutory interpretation." N.M. Cattle Growers Ass'n v. U.S. Fish and Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir.2001) (internal quotations and citations omitted). Because neither § 922(g)(9) nor § 921(a)(33)(A) defines the term "physical force," "we look to the `ordinary, contemporary, and common' meanings of the words used." Romero-Hernandez, 505 F.3d at 1087 (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)).

Black's Law Dictionary defines "force" as "[p]ower, violence, or pressure directed against a person or thing," and "physical force" as "[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim." BLACK'S LAW DICTIONARY (8th Ed.2004). Consistent with these definitions, the Supreme Court and both this circuit and others have suggested that "physical force" means more than mere physical contact; that some degree of power or violence must be present in that contact to constitute "physical force."

In Leocal, for example, the Supreme Court was charged with determining whether a prior conviction under Florida law for "driving under the influence of alcohol (DUI) and causing serious bodily injury" constituted a "crime of violence" within the meaning of 18 U.S.C. § 16. 543 U.S. 1, 4, 125 S.Ct. 377, 160 L.Ed.2d 271. Section 16 defines "crime of violence" to mean:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court commented that "[i]n construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of a `crime of violence.'" Id. at 11, 125 S.Ct. 377. Significantly for our purpose, the Court then said, "[t]he ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses." Id. (emphasis added).

Similarly, in Flores v. Ashcroft, 350 F.3d 666 (7th Cir.2003), the Seventh Circuit interpreting the term "physical force" in 18 U.S.C. § 16(a), observed:

Every battery entails a touch, and it is impossible to touch someone without applying some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves `force' in the sense of physics or engineering, where `force' means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a...