U.S.A v. White
Decision Date | 01 June 2010 |
Docket Number | No. 09-4114.,09-4114. |
Parties | UNITED STATES of America, Plaintiff-Appellee,v.William S. WHITE, Defendant-Appellant. |
Court | U.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.
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 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).
§ 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).
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).
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) (...
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