U.S.A v. White

Decision Date01 June 2010
Docket NumberNo. 09-4114.,09-4114.
PartiesUNITED STATES of America, Plaintiff-Appellee,v.William S. WHITE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Eric Hans Kirchman, Kirchman & Kirchman, Washington, D.C., for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Kenneth M. Robinson, Washington, D.C., for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Kevin C. Nunnally, Special Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Catherine C. BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Reversed and vacated by published opinion. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge BLAKE joined.


AGEE, Circuit Judge:

William White (White) was convicted in the United States District Court for the Eastern District of Virginia for violating 18 U.S.C. § 922(g)(9) (2000), possessing a firearm after having “been convicted in any court of a misdemeanor crime of domestic violence.” On appeal, White argues that his predicate conviction under Virginia law cannot be considered a “misdemeanor crime of domestic violence” as defined in 18 U.S.C. § 921(a)(33)(A) (2000 & Supp.2009). For the reasons set forth by the United States Supreme Court in Johnson v. United States, --- U.S. ----, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) inter alia, we agree with White, reverse the judgment of the district court and vacate White's conviction.


In 2004, White pled guilty and was convicted in the General District Court of Henrico County, Virginia, of violating VA CODE ANN. § 18.2-57.2 for “assault and battery against a family or household member,” which is a Class 1 misdemeanor under Virginia law.1 Because White was a first-time offender, however, the court proceeded under VA CODE ANN. § 18.2-57.3, which allowed the court to defer entering judgment and place White on certain terms and conditions. Accordingly, the general district court ordered that White complete an anger-management course and avoid contact with the victim or her family members. When White failed to complete the course, he was arrested, found guilty of the original offense under VA CODE ANN. § 18.2-57.2 and sentenced to twelve months in jail, all suspended.2

General district courts in Virginia are courts not of record, VA CODE ANN. § 16.1-69.5, so the only record of the charges, trial, conviction and sentence is the executed warrant of arrest as executed by the trial judge. As to the facts of White's offense, all that is known is the date, August 25, 2004, and that the charge is “assault and batter[y] of [victim] (child in common), who is a family or household member.” J.A. 38.

In 2008, White was indicted in the Eastern District of Virginia under § 922(g)(9) for being in possession of a firearm after having “been convicted of a misdemeanor crime of domestic violence.” J.A. 7. White and the Government stipulated that the only predicate conviction which could be considered a misdemeanor crime of domestic violence was the Henrico County assault and battery conviction, and that White did possess a firearm after that conviction. White did not contest in the district court, nor does he on appeal, that the victim of the assault and battery was a person who fit the statutory definition in § 921(a)(33)(A)(ii).

White filed a motion to dismiss the indictment arguing that his Virginia conviction was “not a ‘misdemeanor crime of domestic violence,’ which, for purposes of § 922(g)(9) is defined by § 921(a)(33)(A). He contended that as Virginia uses the common law definition of battery, the elements of that crime could not meet the statutory definition of “misdemeanor crime of domestic violence,” which requires the offense to have “as an element, the use or attempted use of physical force.” § 921(a)(33)(A)(ii) (West 2000 & Supp.2009). White's counsel argued that [a] battery is any intentional touching no matter how slight it is. I wouldn't suggest that would be physical force.” J.A. 62.

The district court denied the motion to dismiss because it perceived “the Virginia interpretations of the elemental requirements of assault and battery under Virginia law in 18.2-57.2 and the attempted use of force under federal law [as] essentially the same.” J.A. 71.

White subsequently entered a conditional guilty plea to the firearms charge, which reserved his right to seek appellate review of the denial of his motion to dismiss. The district court sentenced White to 57 months of imprisonment. He timely appeals the judgment of the district court and we have jurisdiction under 28 U.S.C. § 1291 (2006).


Section 922(g)(9) makes it a felony under federal law to possess a firearm after having been convicted of a “misdemeanor crime of domestic violence,” which § 921(a)(33)(A) defines as “a misdemeanor under Federal, State, or Tribal 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.

§ 921(a)(33)(A)(i)-(ii) (emphasis added).

The issue to be decided in this case is whether the “use ... of physical force,” as that term is used in § 921(a)(33)(A)(ii), is an element of the criminal offense of assault and battery under Virginia law.3 “Physical force” is not defined in § 921 or any other relevant federal statute.

White argues that a person can be convicted of assault and battery in Virginia without the use of “physical force.” This is because, White contends, Virginia retains the common law definition of battery, which includes even the slightest offensive touching as an act of battery. According to White, a mere offensive touching is not synonymous with “physical force”, at least for purposes of an act covered by § 922(g)(9).

The Government admits that “Virginia, like roughly half the States, follows the traditional common-law approach to battery and permits a conviction for battery where there is either bodily injury or an offensive touching.” Br. of Appellee at 11. However, the Government asserts that an assault and battery conviction under VA CODE ANN. § 18.2-57.2 necessarily encompasses the application of “physical force” because the applicable definitional statute, § 921(a)(33)(A), contains no minimal limit on the amount of force required. In the Government's view,

[a]lthough Virginia law does not require proof that the skin was penetrated or that some grievous injury occurred, nothing in the plain meaning of “physical force” requires such consequences. The definition of “physical force” requires no more than that force applied to the victim's body, and that standard is met by a touching of the victim's body that is done willfully or in anger.

Id. at 12. In other words, the Government's position is that any intentional physical contact with a victim's person, regardless how de minimis, constitutes “physical force” as that term is used in § 921(a)(33)(A)(ii). According to the Government, any and every battery conviction under VA CODE ANN. § 18.2-57.2 would be a misdemeanor crime of domestic violence for purposes of felony status under § 922(g)(9).


In Virginia, statutory assault and battery offenses, including those under VA CODE ANN. § 18.2-57.2, incorporate the common law crime of “assault and battery” without statutory modification or restriction. Clark v. Commonwealth, 279 Va. 636, 691 S.E.2d 786, 789 (2010) (explaining that “because the elements of assault are not statutorily defined, this Court must apply the common law definition”); Montague v. Commonwealth, 278 Va. 532, 684 S.E.2d 583, 588 (2009) (affirming conviction under VA CODE ANN. § 18.2-57 and noting that [a]ssault and battery are common law crimes”). It is clear from longstanding Virginia jurisprudence that battery may be accomplished with the slightest touch and no physical injury is required. In 1867 Virginia's highest court explained that

[a]n assault is any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, as by striking at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it. When the injury is actually inflicted it amounts to a battery, which includes an assault, and this however small it may be, as by spitting in a man's face, or in any way touching him in anger, without lawful provocation.

Hardy v. Commonwealth, 58 Va. 592, 17 Gratt. 592 at *6 (1867) (emphasis added). “A battery is the unlawful touching of the person of another by the aggressor himself, or by some substance set in motion by him” and [t]he law cannot draw the line between different degrees of force, and therefore totally prohibits the first and lowest stage of it.” Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (1921) (citation omitted) (emphasis added). “The law is so jealous of the sanctity of the person that the slightest touching of another, or of his clothes, or cane, or anything else attached to his person, if done in a rude, insolent, or angry manner, constitutes a battery for which the law affords redress.” Crosswhite v. Barnes, 139 Va. 471, 124 S.E. 242, 244 (1924); see also

Jones v. Commonwealth, 184 Va. 679, 36 S.E.2d 571, 572 (1946) (“Battery is the actual infliction of corporal hurt on another (e.g., the least touching of another's person), wilfully or in anger, whether by the party's own hand,...

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