United States v. Voisine, Nos. 12–1213

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtLYNCH
Citation778 F.3d 176
PartiesUNITED STATES of America, Appellee, v. Stephen L. VOISINE; William E. Armstrong III, Defendants, Appellants.
Decision Date30 January 2015
Docket Number12–1216.,Nos. 12–1213

778 F.3d 176

UNITED STATES of America, Appellee,
Stephen L. VOISINE; William E. Armstrong III, Defendants, Appellants.

Nos. 12–1213, 12–1216.

United States Court of Appeals, First Circuit.

Jan. 30, 2015


Torruella, Circuit Judge, dissented and filed opinion.

Virginia G. Villa, Assistant Federal Defender, Federal Defender Office, for appellants.

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

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

[778 F.3d 177]

LYNCH, Chief Judge.

The Supreme Court has directed us, in light of United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of “misdemeanor crimes of domestic violence,” as defined in 18 U.S.C. § 921(a)(33)(A), even though the state statutes allowed conviction based on a recklessness mens rea. Armstrong v. United States, ––– U.S. ––––, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir.2013); United States v. Voisine, 495 Fed.Appx. 101 (1st Cir.2013) (per curiam). If so, then their motions to dismiss their federal charges for possessing firearms after such convictions, in violation of 18 U.S.C. § 922(g)(9), were properly denied.

Our answer is informed by congressional recognition in § 922(g)(9) of the special risks posed by firearm possession by domestic abusers. “Domestic violence often escalates in severity over time ... and the presence of a firearm increases the likelihood that it will escalate to homicide....” Castleman, 134 S.Ct. at 1408. It is also informed by the congressional choice in the federal sentencing scheme to honor each state's choice as to how to define its own crimes, through statutory text and judicial decision.

As we see it, this case turns on the unique nature of § 922(g)(9). That section is meant to ensure that individuals who engage in the “seemingly minor act[s]” that actually constitute domestic violence, like squeezing and shoving, may not possess a firearm. Castleman, 134 S.Ct. at 1412. This range of predicate acts is broader than that found in other federal prohibitions involving the use of physical force. Applying the teachings of Castleman, we find that Maine's definition of reckless assault fits within § 922(g)(9).

We affirm the denial of the motion to dismiss the indictment and information here. That means the conditional guilty pleas the defendants entered are valid and their sentences stand. The question is close and we rule narrowly.

A. Statutory Background

As the Supreme Court observed in Castleman, 18 U.S.C. § 922(g)(9) was enacted to close a loophole. “While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors.” Castleman, 134 S.Ct. at 1409. No ban prevented those domestic abusers from possessing firearms, yet there is a “sobering” connection between domestic violence and homicide. Id. The “manifest purpose” of § 922(g)(9), the Lautenberg Amendment to the Gun Control Act of 1968, was to remedy the “potentially deadly combination” of “[f]irearms and domestic strife.” United States v. Hayes, 555 U.S. 415, 426–27, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009).

Under § 922(g)(9), it is against federal law 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.” In turn, a “misdemeanor crime of domestic violence” is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force ... committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim.

The predicate offenses in these cases are convictions under Maine assault statutes.

[778 F.3d 178]

Me.Rev.Stat. Ann. tit. 17–A, §§ 207(1)(A), 207–A(1)(A). Under Maine law, a “person is guilty of assault if[ t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” Id. § 207(1)(A). A violation of § 207 constitutes misdemeanor domestic violence assault if the “victim is a family or household member.” Id. § 207–A(1)(A).

Maine law explains that “[a] person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result.” Id. § 35(3)(A). The statute goes on to give more meat to the “conscious disregard” definition. It refers to disregard of a risk, “when viewed in light of the nature and purpose of the person's conduct and the circumstances known to that person,” that “involve[s] a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” Id. § 35(3)(C).

B. Facts

William E. Armstrong III was convicted in 2002 and 2008 of assaulting his wife in violation of Maine's misdemeanor assault statutes, Me.Rev.Stat. Ann. tit. 17–A §§ 207(1)(A), 207–A(1)(A). In May 2010, twenty-nine months after the last domestic assault conviction, the Maine State Police searched the Armstrong residence for drug paraphernalia and marijuana. They discovered six firearms and ammunition. The police notified the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which executed a search. That search uncovered only ammunition, but Armstrong later explained that he had arranged for a friend to remove the guns. ATF agents observed the guns at the friend's home.

Armstrong was arrested and federally charged with being a prohibited person in possession of a firearm, in violation of § 922(g)(9). The indictment listed Armstrong's 2008 domestic violence assault conviction as the predicate offense.

Stephen L. Voisine was convicted in 2003 and 2005 of assaulting a woman with whom he was in a domestic relationship, in violation of Maine's assault statute. In 2009, acting on an anonymous tip, state and local law enforcement officials arrested Voisine on the federal misdemeanor charge of killing a bald eagle in violation of 16 U.S.C. § 668(a). When conducting a background check, they discovered his 2003 misdemeanor simple assault. As Voisine had turned a rifle over to the police during the investigation, the criminal information charged him with violating § 922(g)(9) as well as § 668(a).

C. Procedural History

Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court's decision.1

We consolidated Armstrong and Voisine's cases. In a January 18, 2013 opinion, we affirmed the district court's decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 Fed.Appx. at 102 (incorporating the reasoning from Armstrong as

[778 F.3d 179]

there were “no pertinent factual differences” distinguishing the two cases). The defendants had argued that a misdemeanor assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a “use of physical force,” and, concordantly, not a “misdemeanor crime of domestic violence.” Relying on United States v. Booker, 644 F.3d 12 (1st Cir.2011), and United States v. Nason, 269 F.3d 10 (1st Cir.2001), we held that § 922(g)(9) did not distinguish between violent and nonviolent convictions, and the statute included the offensive physical contact portion of the Maine statute within its definition of “physical force.” Armstrong, 706 F.3d at 6; Voisine, 495 Fed.Appx. at 101–02.

Second, the defendants argued that § 922(g)(9) violated the Second Amendment as applied to them. This argument was foreclosed by Booker, which denied an identical argument framed as a facial challenge. 644 F.3d at 22–26; see Armstrong, 706 F.3d at 7–8; Voisine, 495 Fed.Appx. at 101.

The defendants petitioned for certiorari. On March 31, 2014, the Supreme Court granted their petitions, vacated the judgments, and remanded “for further consideration in light of United States v. Castleman. Armstrong v. United States, ––– U.S. ––––, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.). In Castleman, the Court had addressed the issue of whether the phrase “use of physical force” in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. That issue had been the source of a circuit split. Castleman resolved the question in agreement with Nason, holding that “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in § 921(a)(33)(A)'s definition of a ‘misdemeanor crime of domestic violence.’ ” Castleman, 134 S.Ct. at 1410. The Supreme Court left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court stated, “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” and listed ten cases.2 Id. at 1414 n. 8. It then added, But see United States v. Booker, 644 F.3d 12, 19–20 (C.A.1 2011).” Id. The footnote did not say Booker was wrong. It gave no further definition of recklessness. Nor did it account for the differences in the statutory sections being interpreted in the other cases cited.

This case comes to us following the Supreme Court's remand.


In construing § 922(g)(9)'s applicability to a given case, we use the “categorical approach.” Under that approach the elements of the predicate offense (here, the Maine assault statute) must be identical to or categorically within the description of the subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.Ct. at 1413. Where, as here, the predicate statute is...

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