United States v. Armstrong

• Decision Date: 18 January 2013
• Docket Number: No. 12–1216.,12–1216.
• Citation: 706 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. William E. ARMSTRONG, III, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

706 F.3d 1

UNITED STATES of America, Appellee,

v.William E. ARMSTRONG, III, Defendant, Appellant.

No. 12–1216.

United States Court of Appeals,First Circuit.

Jan. 18, 2013.

Virginia G. Villa, Assistant Federal Defender, on brief for appellant.

Thomas E. Delahanty II, United States Attorney, with whom Renée M. Bunker, Assistant United States Attorney, on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant–Appellant William E. Armstrong, III (“Appellant” or “Armstrong”) asks us to reconsider arguments heard in and decided by this court regarding: (1) whether 18 U.S.C. § 922(g)(9) should be construed to exclude a purportedly non-violent offensive physical contact misdemeanor conviction as a predicate offense; and (2) whether applying § 922(g)(9) to such a prior conviction would violate a particular defendant's Second Amendment rights. Since Circuit precedent in United States v. Booker, 644 F.3d 12 (1st Cir.2011), and United States v. Nason, 269 F.3d 10 (1st Cir.2001), forecloses the arguments made here, we affirm the district court's denial of Armstrong's motion to dismiss the indictment.

I. Factual and Procedural Background

Armstrong was charged with one count of possessing firearms and ammunition after having been convicted of a misdemeanor crime of domestic violence in contravention of 18 U.S.C. § 922(g)(9). As a predicate offense to the charge, the indictment listed a 2008 misdemeanor conviction for Armstrong's assault of his wife in violation of Maine's simple assault statute. Prior to that conviction, Armstrong had been convicted of two simple assaults: in 1992 and 2002. The 2002 and 2008 convictions were for domestic assaults against his wife, Rosanna Armstrong.

The 2008 assault was described by the district court as follows. Armstrong's wife called the police on or about December 29, 2008, after, as she described to them, she and her husband had gotten in an argument about baking cookies, and Armstrong pushed her. She pushed him back, and the situation escalated until Armstrong hit her “hard.” Armstrong was charged and convicted of domestic violence assault underMaine's simple assault statute for “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to Rosanna Armstrong.”

On May 11, 2010, the Maine State Police conducted a search under warrant of the Armstrong residence for drug paraphernalia and/or marijuana possession. During this search, the police discovered six firearms and a large amount of ammunition. Since the items were not within the scope of the warrant, the police called the Bureau of Alcohol, Tobacco & Firearms (“ATF”) to inform it that Armstrong was a prohibited person and had firearms in his residence. Officers also notified Armstrong that he could not have firearms in his home. Armstrong's wife then called a family friend who came and removed the firearms and brought them to his residence, where he had possession of an SKS rifle that also belonged to Armstrong at the time the original search warrant was executed.

On May 19, 2010, the ATF executed a federal warrant at the Armstrong residence, and while the officers did not find any firearms, they recovered over 1,300 rounds of various types of ammunition. The officers requested that Armstrong appear at the sheriff's office, and Armstrong explained there that he was told to remove the firearms from his home and that his wife had called his friend, who took the guns away. Armstrong then took the officers to his friend's residence, where the ATF agents observed the six firearms noted by the Maine State Police as well as the SKS rifle.

Armstrong was arrested and charged with one count of violating § 922(g)(9). In a pre-trial motion to dismiss the indictment, Armstrong challenged the indicted charge on the grounds that it did not state a federal offense and that, as applied to a conviction for a non-violent misdemeanor offense, it violated his Second Amendment right to keep and bear arms. The district court summarily denied Armstrong's motion, and Armstrong entered a guilty plea conditioned on his right to appeal the denial of the motion to dismiss. After a plea hearing, Armstrong's plea was accepted, and he was sentenced to three years' probation, a $2,500 fine and a $100 special assessment. He timely appealed.

II. Discussion

A. Maine Assault Conviction as Proper Predicate Offense

Appellant's argument turns on an interpretation of the statutory text of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). As such, it presents a question of law that we review de novo. Booker, 644 F.3d at 17, 22.

Pursuant to 18 U.S.C. § 922(g)(9), or the Lautenberg Amendment to the Gun Control Act of 1968 (“Lautenberg Amendment”), it is 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.” A “misdemeanor crime of domestic violence” for purposes of § 922(g)(9) has the meaning given the term in § 921(a)(33)(A), namely, an offense that:

(i) is a misdemeanor under ... State ... 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 a 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[.]

Armstrong's predicate offense was a misdemeanor domestic violence assault conviction under Maine statute, Me.Rev.Stat. Ann. tit. 17–A, § 207–A(1)(A). That statute provides that “[a] person is guilty of domestic violence assault if [that person] violates section 207 and the victim is a family or household member.” Section 207, in turn, provides that “[a] person is guilty of assault if [that person] intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” Me.Rev.Stat. Ann. tit. 17–A, § 207(1)(A). The charging document in this case did not specify whether the nature of the predicate assault fell under the “bodily injury” or “offensive physical contact” prong of the Maine statute.

In United States v. Nason, this court was asked to examine whether “offensive physical contact” under Maine's assault statute—the very statute at issue here—must “necessarily involve[ ] the use or attempted use of physical force” to serve as a § 922(g)(9) predicate offense. 269 F.3d at 11. We disagreed with Nason's contention that the reference to “physical force” in the definition of a “misdemeanor crime of domestic violence” could not be reconciled with the “offensive physical contact” variant of assault in the Maine statute. Instead, we read the “plain and unambiguous meaning” of the phrase “physical force” to be “power, violence, or pressure directed against another person's body,” which was broad enough to encompass the “offensive physical contact” variant of Maine's assault statute. Id. at 16, 20–21. Therefore, we found, § 922(g)(9) applies to the “offensive physical contact” component of the Maine simple assault statute. Id. Specifically, we concluded that “Congress intended the federal law to cover all persons who have been convicted of assaulting domestic partners in circumstances similar to those delineated by both strains of the Maine statute,” affirming the conviction and sentence imposed below. Id. at 12.

In this court's recent decision in United States v. Booker, we held that an offense with a mens rea of recklessness may qualify as a “misdemeanor crime of domestic violence” under § 922(g)(9). 644 F.3d at 21. In making our decision, we reviewed the legislative history and intent behind the Lautenberg Amendment. Id. at 16. We noted Congress's decision to amend the gun law in recognition of “a problem of significant national concern in the combination of domestic violence and guns,” and Congress's view of the “existing law as insufficiently protective of its victims.” Id. Prior to the Amendment, federal law only prohibited firearm possession by convicted felons. Id. Since 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, outdated or ineffective laws that treated domestic violence as a lesser offense, and lack of cooperation from victims, it enacted the Amendment to “close th[e] dangerous loophole,” id. (quoting 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Feinstein)) (internal quotation marks omitted), and “establish[ ] a policy of zero tolerance when it comes to guns and domestic violence,” id. (alteration in original) (quoting 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg)) (internal quotation marks omitted).

In interpreting the breadth of the definition of “misdemeanor crime of domestic violence” in § 922(g)(9), the court in Booker also rejected analogizing that term to 18 U.S.C. § 16's definition of “crime of violence,” which includes “an offense that has as an element the use ... of physical force against the person or property of another.” Id. § 16(a). Specifically, this court found that, “[i]n the course of drafting § 921(a)(33)(A), Congress expressly rejected § 16's definition of ‘crime of violence,’ adopting a definition of ‘misdemeanor crime of violence’ that was, according to the sponsor of the Lautenberg Amendment, ‘probably broader’ than the definition of ‘crime of violence’ in § 16.” Booker, 644 F.3d at 19 (quoting 142 Cong. Rec. S11872–01, S11877 (daily ed. Sept. 30, 1996) (statement of Sen. Lautenberg)). We also explicitly stated that “[t]he threshold at which § 922(g)(9) will be triggered (misdemeanor crimes) is, accordingly, lower than the felony threshold set for the ...