U.S. v. Shelton

• Decision Date: 18 March 2003
• Docket Number: No. 01-20938.,01-20938.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Scott SHELTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

325 F.3d 553

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Scott SHELTON, Defendant-Appellant.

No. 01-20938.

United States Court of Appeals, Fifth Circuit.

March 18, 2003.

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Jeffery Alan Babcock (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., George Michael DeGurin and Laura Fletcher Leavitt (argued), Asst. Fed. Pub. Defenders, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES and DENNIS, Circuit Judges, and WALTER,^* District Judge.

BENAVIDES, Circuit Judge:

Ernest Scott Shelton appeals his conviction for unlawful possession of a firearm following a misdemeanor conviction of domestic violence. 18 U.S.C. § 922(g)(9). Shelton challenges the sufficiency of the evidence on several bases, including whether the predicate offense contains an element of use of force and whether the predicate offense must contain the element of a domestic relationship between the defendant and the victim. Guided by the precedent of this and other circuits, we reject these challenges and conclude that (1) causing bodily injury necessarily includes the element of use of physical force and that (2) the domestic relationship is not required to be an element of the predicate offense. We also reject Shelton's contention that § 922(g)(9) requires knowledge that it was unlawful to possess a firearm after having been convicted of a misdemeanor crime of violence.¹

I. PROCEDURAL HISTORY

Ernest Scott Shelton was charged with the unlawful possession of a firearm following a misdemeanor conviction of domestic violence, in violation of § 922(g)(9) (Count 1), and with making a false and fictitious written statement in connection with the acquisition of a firearm from a licensed dealer (Count 2). Shelton filed pretrial motions to dismiss, alleging that § 922(g)(9) was unconstitutional for violating the notice and fair warning requirements of the Due Process Clause of the Fifth Amendment and for failing to require a substantial effect on interstate commerce. Shelton also argued that, pursuant to § 921(a)(33)(B)(ii), his prior misdemeanor conviction of assault could not be used to support the § 922(g)(9) charge since it did not result in the loss of his civil rights. Shelton's motions were denied by the district court.

Shelton waived his right to a jury trial and agreed to proceed to a bench trial on the § 922(g)(9) charge only² based on the following stipulated facts:

1. On or about July 14, 2000 in the Houston Division of the Southern District of Texas the Defendant, Ernest Scott Shelton, did knowingly possess a firearm, namely, a Winchester 12 gauge shotgun.

2. Agent Carla Mayfield would truthfully testify at trial that the said firearm that was possessed by Defendant on July 14, 2000 was manufactured outside the state of Texas in the state of Connecticut and had therefore been transported from one state to another prior to the Defendant's possession of the firearm in the state of Texas.

3. Prior to Defendant's possession of the firearm on July 14, 2000, the Defendant had been convicted in Harris County Criminal Court at Law #8 of the misdemeanor offense of Assault on March 6, 1998 in cause number 9750538. The Defendant was represented by an attorney and he pled guilty in the case after knowingly and intelligently waiving his right to a trial by jury.

4. The alleged victim in cause number 9750538 is Amanda Alvarado. The assault that the defendant was convicted of in that cause is alleged to have occurred on December 7, 1997. At that time Amanda Alvarado was the defendant's live[-]in girlfriend and had resided with the defendant for approximately two months.

After presentation of the stipulated evidence, Shelton moved for judgment of acquittal. Among other things, Shelton argued that his prior Texas misdemeanor assault conviction did not meet the definition of "crime of domestic violence" for purposes of § 922(g)(9) because it did not require proof that the offense involved "the use or attempted use of physical force" 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," as required by § 921(a)(33)(A)(ii).

During oral argument on his motion, Shelton conceded that, by "grabbing the complainant by the shirt and throwing the complainant onto a bed," physical force had been employed during the commission of the misdemeanor assault. The district court found that, with respect to the domestic relationship requirement of § 922(g)(9), a "live-in girlfriend" constituted someone "similarly situated to a spouse" for purposes of § 921(a)(33)(A)(ii). Accordingly, Shelton's motion for acquittal was denied, and the district court found him guilty of the § 922(g)(9) charge.

Shelton filed a post-conviction motion for a new trial, which the district court denied. He was sentenced to 21 months of imprisonment, to be followed by a three-year term of supervised release. Shelton filed a timely notice of appeal.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Shelton raises several challenges to the sufficiency of the evidence to sustain his conviction for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. 18 U.S.C. §§ 922(g)(9) and 924(a)(2). This Court reviews a district court's finding of guilt after a bench trial to determine whether it is supported by "any substantial evidence." United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir.1992). Evidence is sufficient to sustain a conviction if any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In conducting this inquiry, we examine the evidence as a whole and construe it in the light most favorable to the verdict. United States v. Lombardi, 138 F.3d 559, 560-61 (5th Cir.1998). The district court's legal conclusions are reviewed de novo. United States v. Jones, 172 F.3d 381, 383 (5th Cir.1999).

Section 922(g)(9) provides as follows: "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 commerce, any firearm or ammunition...." The term "misdemeanor crime of domestic violence" is defined as a misdemeanor under federal or state law 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." 18 U.S.C. § 921(a)(33)(A). Shelton's prior conviction for misdemeanor assault was pursuant to § 22.01(a)(1) of the Texas Penal Code, which provides that "[a] person commits an offense if the person ... intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse...." Shelton has admitted that the victim of his prior conviction was his "live-in girlfriend" of two months at the time of the assault.

1. Whether the predicate offense contains the element of use of force

Shelton first argues that his prior conviction for misdemeanor assault pursuant to § 22.01(a)(1) of the Texas Penal Code does not constitute a "crime of domestic violence" within the definition of 18 U.S.C. § 922(g)(9) because the Texas misdemeanor assault statute did not contain the element of "the use or attempted use of physical force."

a. Fifth Circuit Precedent

Although we have not resolved this precise question with respect to Shelton's offense, this Court has concluded that the Texas offenses of reckless conduct (§ 22.05)³ and terroristic threat (§ 22.07)⁴ do not contain the element of "the use or attempted use of physical force." United States v. White, 258 F.3d 374 (5th Cir.2001). In White, we explained that the offense of "`recklessly engag[ing] in conduct that places another in imminent danger of serious bodily injury'" in violation of § 22.05(a) "does not require that the perpetrator actually `use' `physical force' against another (or use it at all)." Id. at 382. Immediately after this sentence, in a footnote with a "compare" signal, this Court set forth the elements of § 22.01(a), the instant predicate offense. The government asserts that this footnote distinguished the statute at issue in White, which did not require use of physical force, from the instant statute, which does require use of physical force. Although such an interpretation of the footnote is quite plausible, because there is no parenthetical explaining why the cite was preceded by a "compare" signal, it is not entirely clear whether the cite to the instant statute supports the proposition that the instant offense contains the element of "physical force" necessary to satisfy § 921(a)(33)(A)(ii)'s definition of domestic crime of violence. In any event, any such implication would be dictum.⁵

Subsequent to oral argument in the instant case, this Court held that a Texas conviction for intoxication assault qualified as a "crime of violence" for sentence enhancement purposes. United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003). In that case, the appellant argued that his prior conviction did not constitute a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because it did not contain the element of intentional use of force against a person.⁶ We disagreed, stating that because the appellant's conviction for intoxication assault required proof that he caused "`serious bodily injury to another,'" such offense "has as an element the use of force against the...