United States v. Armstrong , 706 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1216
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM E. ARMSTRONG, III,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
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.
January 18, 2013
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
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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 under Maine'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
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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.
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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
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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
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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
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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 [Armed Career Criminal Act]."
Id. at 21. "Whereas the ACCA seeks to protect society at large
from a diffuse risk of injury or fatality at the hands of armed,
recidivist felons, § 922(g)(9) addresses an acute risk to an
identifiable class of victims -- those in a relationship with a
perpetrator of domestic violence." Id. Therefore, this court
found "no ambiguity in the phrase 'use . . . of physical force'
when read in light of the 'text, structure, history, and purpose'
of § 922(g)(9)." Id. (citation omitted).
On the basis of these decisions, the district court
summarily denied Armstrong's motion to dismiss. We cannot but
agree, noting that Armstrong's counsel conceded in her motion brief
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below that she had raised the same claims in the district court to
no avail in United States v. Booker, 570 F. Supp. 2d 161 (D. Me.
2008), United States v. Wyman, 667 F. Supp. 2d 151 (D. Me. 2009),
and United States v. Pettengill, 682 F. Supp. 2d 49 (D. Me. 2010),
and, further, that this court has decided Booker and Wyman
adversely to her claims (Pettingill remains pending). However, for
the sake of thoroughness, we will address the two claims raised by
Appellant here.
Appellant concedes that he "engaged in offensive physical
contact with his wife." However, he argues that a misdemeanor
conviction for that assault cannot constitute a predicate offense
for a § 922(g)(9) charge. He asserts first that the language and
history of the misdemeanor violence prohibition's incorporation
into § 922(g)(9) indicates that Congress never intended the
proscription to apply to non-violent battery convictions which
encompass non-violent offensive physical contact at common law. A
cursory interpretation of §§ 921(a)(33)(A) and 922(g)(9), in light
of Nason and Booker, clearly indicates otherwise.
Statutory interpretation begins with the statute's
language. United States v. Hartsock, 347 F.3d 1, 5-6 (1st Cir.
2003). "Where the language of the statute is plain and the meaning
unambiguous, we will do no more than enforce the statute in
accordance with those plain terms." Booker, 644 F.3d at 17 (citing
Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 593 F.3d
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38, 50 (1st Cir. 2010)). This court is bound by the Maine Law
Court's interpretation and application of state law. Johnson v.
United States, 130 S. Ct. 1265, 1269 (2010). We have already found
the phrase "misdemeanor crime of domestic violence" to be
unambiguous. United States v. Meade, 175 F.3d 215, 221 (1st Cir.
1999). In Nason, we reviewed the Maine Law Court's own
interpretation of its simple assault statute's offensive-physical-
contact prong, and found that it included "something less than
bodily injury" but "more than a mere touching of another." Nason,
269 F.3d at 19 (quoting State v. Pozzuoli, 693 A.2d 745, 747 (Me.
1997)) (internal quotation marks omitted). In Booker, we pointed
to Congress's express rejection of including as predicate offenses
only such "crime[s] of violence" as are included in 18 U.S.C. § 16,
and noted Congress's adoption of "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. at S11877 (statement of Sen. Lautenberg)). Courts have
also found that Congress intended to encompass common-law batteries
by including federal misdemeanor batteries in § 921(a)(33)'s
definition of misdemeanor crimes of domestic violence. See 18
U.S.C. § 921(a)(33) (listing domestic-violence crimes that are
"misdemeanor[s] under Federal . . . law"); see, e.g., United States
v. Delis, 558 F.3d 177, 178 (2nd Cir. 2009); United States v.
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Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (citing United
States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974)).
Armstrong's attempt to challenge this court's precedent
through the Supreme Court's ruling in Johnson v. United States is
unavailing. See generally Johnson, 130 S. Ct. 1265. First,
Johnson was issued prior to our decision in Booker. Second,
Johnson explicitly avoided deciding the question at issue here.
Id. at 1273 ("We do not decide that the phrase ['physical force']
has the same meaning in the context of defining a misdemeanor crime
of domestic violence [as opposed to a felony]. The issue is not
before us, so we do not decide it.").
To conclude, the statute on its face, its legislative
history and this court's precedent do not distinguish between
"violent" or "non-violent" misdemeanor convictions when they
involve the kind of conviction at issue here, and in any case, the
court fails to see how a conviction for an offensive touching such
as the offensive physical contact for which Armstrong was convicted
fails to constitute a predicate offense based on our prior
interpretation of § 922(g)(9) predicate offense requirements of
"physical force." For these reasons, we reject Appellant's first
set of arguments.
Armstrong also raises a due process objection. We review
this argument for plain error since Armstrong failed to raise these
concerns below. United States v. Matos, 611 F.3d 31, 35 (1st Cir.
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2010). There was no error, let alone plain error, in the district
court's decision.
First, the issue that Armstrong characterizes as a "fair
warning" problem is in fact a rehash of the rule of lenity argument
that we squarely rejected in Booker. See 644 F.3d at 21. As we
held in that case, there was no ambiguity in the phrase "use . . .
of physical force" as of the time of Armstrong's conduct that led
to his domestic violence conviction. See id. With no ambiguity,
there could be no lack of warning as to the import of § 922(g).
Armstrong's argument to the contrary relies on the mistaken premise
that Johnson had any effect on the interpretation of what
constitutes a "misdemeanor crime of domestic violence."
Second, Armstrong argues that he was denied due process
because he did not have an opportunity to prove that the conduct
underlying his domestic violence conviction was non-violent.
Again, the premise of this argument fails because of its attempt to
apply Johnson to the § 922(g) context. Johnson explicitly did not
decide anything relating to § 922(g), much less create a new
requirement that the government must prove the degree of violence
inherent in the underlying domestic misdemeanor conduct of a
defendant charged under that section.
Finally, to the extent Armstrong alleges that he was
denied due process because of shortcomings in Maine's procedures
for adjudicating misdemeanor offenses, the argument fails.
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Congress explicitly addressed due process considerations with
respect to misdemeanor proceedings by enacting due process
protections in § 921(a)(33). These include requirements that
misdemeanants have been (1) "represented by counsel in the case, or
knowingly and intelligently waived their right to counsel," 18
U.S.C. § 921(a)(33)(B)(i)(I); and (2) prosecuted in jurisdictions
where they were entitled to a jury trial and either received, or
"knowingly and intelligently waived their right to," such a trial,
id. § 921(a)(33)(B)(i)(II). Armstrong's convictions were full-
scale convictions, he was represented by counsel, and he had
additional judicial process available to challenge the factual and
legal bases for his conviction by appealing to higher courts. See,
e.g., State v. Keegan, 296 A.2d 483, 485-86 (Me. 1972) (explaining
Maine's multi-tiered appeal process for misdemeanor crimes).
Armstrong deliberately waived some of these state court procedures
by pleading guilty, and he does not allege that his plea was not
knowing or voluntary. In short, he received all of the due process
protection in his misdemeanor conviction that Congress anticipated
as being necessary to establish a predicate offense under § 921
(a)(33).
For all of the above-cited reasons, the court rejects
Appellant's due process-based arguments.
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B. Second Amendment Claim
We review constitutional challenges to federal statutes
de novo. Booker, 644 F.3d at 22. The Second Amendment provides:
"A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed." U.S. Const. amend. II. In District of Columbia
v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the
Second Amendment secured an individual, and not just a collective,
right to bear arms. Id. at 576-626. Heller expressly left for
"future evaluation" the precise level of scrutiny to be applied to
laws that allegedly infringe Second Amendment rights. Id. at 626,
629, 634-35.
In Booker, this court directly addressed the issue of
whether, in light of the Supreme Court's recognition in Heller that
an individual right to gun ownership is protected by the Second
Amendment, convictions under § 922(g)(9) must be found
unconstitutional. Booker, 644 F.3d at 22. We found the "animating
interest" of § 922(g)(9) to be in "keeping guns away from people
who have been proven to engage in violence with those with whom
they share a domestically intimate or familial relationship, or who
live with them or the like." Id. at 25. We also found a
"substantial relationship between § 922(g)(9)'s disqualification of
domestic violence misdemeanants from gun ownership and the
governmental interest in preventing gun violence in the home" since
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"[s]tatistics bear out the Supreme Court's observation that
'firearms and domestic strife are a potentially deadly combination
nationwide.'" Id. (quoting United States v. Hayes, 555 U.S. 415,
427 (2009)). We accordingly held that § 922(g)(9) "substantially
promotes an important government interest in preventing domestic
gun violence," rejecting the appellants' Second Amendment challenge
to the law. Id. at 26.
Armstrong attempts to distinguish this case from Booker
by framing the Second Amendment challenge to § 922(g)(9) therein as
a "facial" challenge as compared to the instant "as-applied"
challenge. Specifically, he contends that, if the relevant
misdemeanor conviction is not based on violent behavior, the
statute cannot survive intermediate scrutiny as applied because the
basis for the proscription is not tailored closely enough to the
identified governmental interest to justify the deprivation of a
core constitutional right.
As an initial matter, this court has not adopted
intermediate scrutiny as the appropriate type of review for a
challenge such as Armstrong's. See Booker, 644 F.3d at 25.
Nonetheless, under any standard, Armstrong's claim fails.
First, Appellant has already conceded in the court below
that his arguments are identical to those made in the lower court
in Booker regarding the constitutionality of § 922(g)(9). An as-
applied challenge following a failed facial challenge to the
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constitutionality of a statute cannot prevail if it is based on
"the same type of fact situation that was envisioned by th[e] court
when the facial challenge was denied." McGuire v. Reilly, 386 F.3d
45, 61 (1st Cir. 2004); see also Republican Nat. Comm. v. Fed.
Election Comm'n, 698 F. Supp. 2d 150, 157 (D. D.C. 2010) ("In
general, a plaintiff cannot successfully bring an as-applied
challenge to a statutory provision based on the same factual and
legal arguments the Supreme Court expressly considered when
rejecting a facial challenge to that provision."), aff'd, 130 S.
Ct. 3544 (2010). Therefore, since Armstrong attempts to assert an
as-applied challenge to the same kind of fact situation envisioned
in Booker, it must fail.
Second, Appellant's arguments fail as an "as-applied"
challenge because a sufficient nexus exists here between the
important government interest and the disqualification of domestic
violence misdemeanants like Appellant. As we found above, the
statute encompasses the kind of "physical force" that Appellant was
convicted of using under the Maine domestic violence assault
statute. Further, in targeting such misdemeanants for its
proscriptions, Congress stated clear reasons for effectuating the
governmental interest through its broadening of the scope of the
firearm proscription so as to provide more substantial protections
for victims of domestic violence. Specifically, the Lautenberg
Amendment was enacted because Congress found the focus on felony
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convictions too narrow. Booker, 644 F.3d at 16. By broadening the
proscription to misdemeanants like Appellant, Congress sought to
"alleviate the danger of intimate homicide by convicted abusers."
Id. at 26. Research that we described in Booker linking the
presence of a gun in the home of a convicted domestic abuser with
increased risk of homicide applies equally here to justify the
restraint on Appellant's constitutional rights. We therefore
reject Armstrong's challenge to the constitutionality of applying
§ 922(g)(9) to him.
III. Conclusion
For the foregoing reasons, we affirm the district court.
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