United States v. William Smith ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 97-4227
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
William Maurice Smith, *
*
Appellant. *
________________
Submitted: October 21, 1998
Filed: March 24, 1999
________________
Before McMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
________________
HANSEN, Circuit Judge.
William Maurice Smith conditionally pleaded guilty to two firearm charges.
He conditioned his plea on the right to appeal the district court's1 denial of his
motions to dismiss the indictment. Smith now appeals the denial of those motions.
He also appeals one aspect of his sentence. We affirm.
1
The Honorable Michael J. Melloy, Chief Judge, United States District
Court for the Northern District of Iowa.
I.
The facts underlying the current federal firearm charges occurred in 1996 when
Smith, who was then twenty years old, bought a gun with a driver's license that listed
his age as twenty-one. On November 17, 1996, Smith shot and wounded Lauralee
Lorenson during an argument. The grand jury returned a three-count superseding
indictment based on these events. Smith's motions to dismiss the indictment were
denied by the district court. Smith then conditionally pleaded guilty to one count of
making false representations in connection with the purchase of a firearm, see 18
U.S.C.A. § 922(a)(6) (West. Supp. 1998), and one count of possessing a firearm after
having been convicted of a misdemeanor involving domestic violence. See 18
U.S.C.A. § 922(g)(9). Smith was sentenced to 51 months in prison to be followed by
a three year term of supervised release.
The predicate offense for Smith's § 922(g)(9) charge is an Iowa simple
misdemeanor assault conviction. In 1994, Smith pleaded guilty to assault, see Iowa
Code §§ 708.1; 708.2(4) (1994), involving an incident with Lorenson, the mother of
his child and the victim of the later shooting involved in the current federal offense.
The state court appointed counsel to represent Smith on the assault charge, but his
counsel did not appear at his plea hearing on November 28, 1994. Following his
counsel's failure to appear at the hearing, Smith signed a "Waiver of Right to
Counsel" and pleaded guilty to simple misdemeanor assault. He was fined $100.
II.
We review de novo the district court's denial of Smith's motions to dismiss the
indictment. See United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997), cert.
denied, 118 S. Ct. 1398 (1998). Smith challenges the application to his case of 18
U.S.C.A. § 921(a)(33), which defines a "misdemeanor crime of domestic violence,"
arguing that: 1) Iowa Code § 708.1, which defines assault, does not contain the
2
required elements of: a) the use or attempted use of physical force, and b) a domestic
relationship; and 2) he did not intelligently and knowingly waive his right to counsel
at the underlying plea hearing as required by § 921(a)(33)(B)(i)(I). Smith also
challenges the constitutionality of § 921(a)(33), arguing it: 1) is vague and overbroad;
and 2) violates equal protection. Finally, Smith argues that Article IV, Section 4 of
the United States Constitution prevents application of U.S.S.G. § 2A2.2 to this case
of domestic violence.
A. Statutory Challenges to § 922(g)(9)
1. Elements of Predicate Offense
Congress enacted 18 U.S.C. § 922(g)(9) in 1996, providing: "It shall be
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."
Section 921(a)(33)(A)(ii) defines "misdemeanor crime of domestic violence" as one
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, . . . [or] by a person
with whom the victim shares a child." The government concedes that § 921(a)(33)
requires the predicate misdemeanor crime to "ha[ve], as an element, the use or
attempted use of physical force." (See Appellee's Br. at 6.) Smith contends that the
predicate misdemeanor must also have, as an element, a domestic relationship
between the perpetrator and the victim, and argues that his predicate offense of simple
assault does not contain this element.
In construing a statute, we look first to the plain meaning of the words of the
statute. See Salinas v. United States, 118 S. Ct. 469, 474 (1997). Only if the statute
is ambiguous do we look to the legislative history to determine Congress's intent. See
United States v. Gonzales, 117 S. Ct. 1032, 1035 (1997). In the statute at issue, the
singular term "element" modifies the phrase "the use or attempted use of physical
3
force . . . ." If Congress meant the predicate misdemeanor to have two elements, it
would have used the plural form of "element." See United States v. Green, 902 F.2d
1311, 1312 (8th Cir.), cert. denied, 498 U.S. 943 (1990). We find the language of the
statute to be unambiguous, and look to the legislative history only to bolster our
conclusion: "[C]onvictions for domestic violence-related crimes often are for crimes,
such as assault, that are not explicitly identified as related to domestic violence." 142
Cong. Rec. S11872-01, *S11878 (1996) (statement of Sen. Lautenberg). In
recognizing that domestic violence-related crimes often involve crimes which are not
necessarily so designated, Congress evinced its intent that the predicate offense need
not contain a domestic relationship as an element. Thus, we hold that while §
921(a)(33) requires proof of a domestic relationship, it requires the predicate
misdemeanor to have only one element: the use or attempted use of physical force (or
its alternative, the threatened use of a deadly weapon, a situation not here presented).
Smith pleaded guilty to simple misdemeanor assault under Iowa Code §
708.2(4). The Iowa assault statute distinguishes between aggravated misdemeanor
assaults, serious misdemeanor assaults, and simple misdemeanor assaults based on
the level of intent and whether a dangerous weapon was involved. See Iowa Code §
708.2(1)-(4). All assaults are defined by reference to § 708.1, which defines "assault"
as occurring when a person does any of the following:
(1) Any act which is intended to cause pain or injury to, or which is
intended to result in physical contact which will be insulting or
offensive to another . . . .
(2) Any act which is intended to place another in fear of immediate
physical contact which will be painful, injurious, insulting, or offensive
....
Thus, a generic assault in Iowa may include, as an element, placing another in fear of
imminent physical contact. If Smith pleaded guilty to § 708.1(2), then he was not
4
convicted of an offense that "has, as an element, the use or attempted use of force."
18 U.S.C.A. § 921(a)(33)(A)(ii).
When statutory language dictates that predicate offenses contain enumerated
elements, we must look only to the predicate offense rather than to the defendant's
underlying acts to determine whether the required elements are present. See United
States v. Wright, 957 F.2d 520, 522 (8th Cir.) (construing United States Sentencing
Guidelines (U.S.S.G.) § 4B1.2(1)(i), which defines "crime of violence" as an offense
that "has as an element, the use, attempted use, or threatened use of physical force"
(emphasis added)), cert. denied, 506 U.S. 856 (1992). We may expand our inquiry
under this categorical approach to review the charging papers and jury instructions,
if applicable, only to determine under which portion of the assault statute Smith was
convicted. See Taylor v. United States, 495 U.S. 575, 602 (1990).
This case is quite similar to Taylor, which involved a sentence enhancement
under 18 U.S.C. § 924(e) for prior burglaries. The Supreme Court read § 924(e) as
requiring the predicate burglary offense to contain the elements of generic burglary,
precluding a court from looking to the defendant's underlying conduct. See Taylor,
495 U.S. at 600-01. The Court noted that the federal sentencing court could go
beyond the mere fact of conviction, for example, and look to the charging papers and
jury instructions to determine if the jury was required to actually find the elements of
generic burglary in order to convict the defendant. Id. at 602. The Supreme Court
remanded Taylor because the Court could not determine, from the record before it,
under which subsection of the Missouri burglary statute the defendant had pleaded
guilty and been convicted. Id. On remand, the government produced the charging
papers, which detailed the elements of the crimes to which the defendant had pleaded
guilty, though the papers did not include a reference to the specific section of the state
burglary statute. See United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert.
denied, 502 U.S. 888 (1991). On appeal from the remand, we held that it was
appropriate under the Supreme Court's ruling in a case where the predicate
5
convictions were the result of a guilty plea, to look to the charging papers to
determine to which section of a statute a defendant pleaded guilty. See id. at 707-08.
See also United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.) (looking to the
information's specific allegations where the defendant pleaded guilty to a predicate
act of burglary to determine if the predicate act was generic burglary under Taylor;
district court can look to the "charging document as a whole"), cert. denied, 119 S.
Ct. 126 (1998).
The state court complaint accused Smith of "commit[ting] an act which was
intended to cause pain or injury to another, coupled with the apparent ability to
execute said act." (Appellee's App. at 20.) The complaint recited that Smith grabbed
Lorenson "by the throat, and did also push her down." (Id.) Thus, Smith was charged
under Iowa Code § 708.1(1), for committing an act intended to cause pain, injury, or
offensive or insulting physical contact, rather than § 708.1(2), for placing one in fear
of such contact. As such, Smith was charged, and pleaded guilty to, an offense with
an element of physical force within the meaning of 18 U.S.C.A. § 921(a)(33)(A)(ii).2
2. Knowing and Intelligent Waiver Under § 921(a)(33)
Section 921(a)(33)(B)(i) provides that a person is not considered to have been
convicted of a misdemeanor crime of domestic violence unless he was represented by
counsel in the case or voluntarily and intelligently waived his right to counsel. Smith
was appointed counsel for his Iowa assault charge but his counsel failed to appear at
the plea hearing. After waiting for Smith's counsel to appear, the state magistrate
asked Smith if he wanted to proceed with a proposed plea agreement. Though the
record is unclear as to the exact exchange, the magistrate indicated that her general
2
Smith argues that § 708.1(1) contains, as an element, physical contact that
is merely insulting or offensive. However, such physical contact, by necessity,
requires physical force to complete. Thus, we find little merit to this argument.
6
practice would have been to continue the proceeding to another day if Smith had
requested the court to wait for his counsel. Smith does not claim to have made such
a request and offers no evidence that the magistrate deviated from her normal
practice. Smith's previous request for, and receipt of, appointed counsel shows his
understanding of his right to, and the usefulness of, counsel. Additionally, Smith
signed a form waiving his right to counsel3 before entering the plea. A written waiver
of counsel can be the basis for a valid waiver. See United States v. Turner, 975 F.2d
490, 496 (8th Cir. 1992), cert. denied, Dowdy v. United States, 506 U.S. 1082 (1993);
United States v. Thomas, 543 F.2d 1226, 1228 (8th Cir. 1976), cert. denied, 429 U.S.
1051 (1977). The evidence of Smith's written waiver, coupled with his prior
invocation of his right to appointed counsel, and the acceptance of his waiver by the
Iowa magistrate who took his plea, sufficiently show, and allow us to conclude as a
matter of law, that Smith voluntarily and knowingly waived his right to counsel at the
plea hearing for purposes of § 921(a)(33)(B).
Smith contends that his waiver was not voluntary because his counsel was not
present at the time of the waiver. There is no Sixth Amendment right to appointed
counsel for a misdemeanor crime if the defendant's sentence does not include
imprisonment. See Nichols v. United States, 511 U.S. 738, 746 (1994); Scott v.
Illinois, 440 U.S. 367, 373-74 (1979). Smith's sentence was a $100 fine. Smith's
right to appointed counsel arose under Iowa Rule of Criminal Procedure 42. Fifth
Amendment jurisprudence prevents police officers from instigating interrogation of
a defendant once he has invoked his constitutional right to counsel, unless that right
has subsequently been waived in the presence of the attorney. See McNeil v.
Wisconsin, 501 U.S. 171, 176-77 (1991). The purpose of this rule is to prevent a
zealous police officer from coercing a defendant into waiving the already exercised
3
The waiver form that Smith signed was for the crime of First Offense
Assault/Domestic Abuse because the court did not have a form for simple assault.
However, Smith concedes that he knew at all times that he was only charged with
simple assault and that he faced a $100 fine pursuant to the plea agreement.
7
right to counsel so that the officer can then interrogate him. Id. at 177. Smith has not
cited, and we have not found, any support for extending this Fifth Amendment
prophylactic rule regarding the constitutional right to counsel in a custodial
interrogation setting to a state statutory right to counsel at trial when a neutral judge
supervises the execution of a waiver in the course of a hearing. The purpose of the
rule does not justify such an extension. The court is not the defendant's adversary,
and there is much less chance of coercion. None was shown here. Thus, we reject
Smith's argument.
B. Constitutional Challenge
1. Vagueness4
Smith contends that § 921(a)(33) is vague because it does not require the
predicate misdemeanor offense to include elements of both physical force and a
domestic relationship. Because we have found that § 921(a)(33) requires the
predicate offense to include an element of physical force, we address Smith's
vagueness challenge concerning the existence of a domestic relationship.
To determine whether a criminal statute meets a vagueness challenge, we must
assess "whether 'men of common intelligence must necessarily guess at its meaning
and differ as to its application.'" Planned Parenthood of Minn. v. Minnesota, 910
F.2d 479, 482 (8th Cir. 1990) (quoting Baggett v. Bullitt, 377 U.S. 360, 367 (1964)).
We are concerned about criminal statutes that lead to "arbitrary and erratic arrests and
convictions." United States v. Donahue, 948 F.2d 438, 441 (8th Cir. 1991) (internal
quotations and citations omitted), cert. denied, 503 U.S. 976 (1992). Section
4
Although Smith characterizes this constitutional challenge as a vagueness
and overbreadth challenge, he makes only the vagueness argument. We limit our
discussion accordingly.
8
921(a)(33) applies to any misdemeanor crime that has an element of physical force
and that was "committed by a current or former spouse, . . . [or] a person with whom
the victim shares a child." We would be hard pressed to find an individual of
common, or even not so common, intelligence who could not determine whether he
was in one of the enumerated relationships when he committed a misdemeanor crime
including an element of physical force.
Smith argues that because Iowa also has a specific domestic abuse assault
statute, see Iowa Code Ch. 708.2A, and he was charged with and pleaded guilty to the
separate offense of simple misdemeanor assault, he was not fairly apprised that his
conduct was forbidden by § 922(g)(9). We find this argument unconvincing. As we
explained above, 18 U.S.C.A. § 921(a)(33) is unambiguous and does not require the
underlying misdemeanor to contain a domestic relationship element. The fact that
Smith could have been convicted under two misdemeanor statutes, one of which was
arguably more applicable to the proscribed conduct, does not negate notice that
conviction under the other similarly relevant misdemeanor statute could also serve
as a predicate offense for § 922(g)(9).
2. Equal Protection
Section 921(a)(33)(B)(ii) provides an exception to the application of §
922(g)(9) "if the conviction has been expunged or set aside, or is an offense for which
the person has been pardoned or has had civil rights restored (if the law of the
applicable jurisdiction provides for the loss of civil rights under such an offense)."
As in most states, civil rights are not stripped from individuals convicted of a
misdemeanor in Iowa. Thus, in Iowa, an individual convicted of a misdemeanor
cannot benefit from the federal restoration exception. In contrast, a person convicted
of a variety of Iowa felony offenses, including those potentially involving domestic
relationships, can have his civil rights restored and thereby fit within a similar
9
exception to § 922(g)(1), allowing a felon to once again possess a firearm. See 18
U.S.C.A. § 921(a)(20).
Smith argues he should fit within the restoration exception because the end
result is the same--he is still possessed of his civil rights, regardless of whether he had
them restored or he never lost them in the first place. See United States v. Indelicato,
97 F.3d 627 (1st Cir. 1996), cert. denied, 117 S. Ct. 1013 (1997). Indelicato avoided
an equal protection challenge by indulging in a fiction. The court found that a person
convicted of a misdemeanor that nevertheless fit within the scope of a violent felony
under 18 U.S.C.A. § 924(e),5 and who subsequently did not have his civil rights
forfeited, still qualified for the restoration exception of § 921(a)(20). See id. at 629
(noting that this interpretation directly conflicts with the literal language of "restored"
but indicating that the court did not feel bound by the literal language of the statute).
We are not at liberty to engage in the fiction created by Indelicato, however, because
§ 921(a)(33) includes language that precludes such a fiction. The restoration
exception of § 921(a)(33) only applies to "civil rights [that have been] restored (if the
law of the applicable jurisdiction provides for the loss of civil rights under such an
offense)." 18 U.S.C.A. § 921(a)(33)(B)(ii) (emphasis added). This parenthetical
language is not contained within § 921(a)(20), which was applied in Indelicato.
Additionally, to apply such a fiction to § 922(g)(9), aimed at misdemeanors, would
be to vitiate the statute because most misdemeanor convictions do not result in the
loss of civil rights. Thus, almost all misdemeanants would fit within the exception
and the exception would swallow the rule. Such a result is to be avoided.
5
Section 924(e) defines "violent felony" to include misdemeanors with
potential prison sentences over two years by reference to § 922(g)(1). See also 18
U.S.C.A. § 920(a)(20).
10
Because we refuse to include Smith within the restoration exception, he asserts
that his right to equal protection afforded him by the Fifth Amendment6 has been
violated. Both parties' briefs argued under the rational basis standard of review
without addressing which standard should apply. Smith argued orally that strict
scrutiny applies because his constitutional right to bear arms was being infringed
upon. However, the rational basis standard is appropriate because the Second
Amendment is inapplicable. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980)
(finding no Constitutional violation unless possession of a weapon has a reasonable
relationship to the militia); Hale v. United States, 978 F.2d 1016, 1019 (8th Cir.), cert.
denied, 507 U.S. 997 (1993).
In applying the rational basis standard, "we presume legislation is valid and
will sustain it if the classification drawn by the statute is rationally related to a
legitimate [governmental] interest." Chance Mgmt. Inc. v. South Dakota, 97 F.3d
1107, 1114 (8th Cir. 1996) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440 (1985)), cert. denied, 117 S. Ct. 1083 (1997). Smith carries the burden
of proving that the distinction is wholly arbitrary and irrational, see id., "and that it
cannot conceivably further a legitimate governmental interest." United States v.
Phelps, 17 F.3d 1334, 1345 (10th Cir.), cert. denied, 513 U.S. 844 (1994).
Smith argues that this distinction--between a misdemeanant who is ineligible
for the restoration exception because he never lost his civil rights and a felon who has
had his civil rights restored--fails even the rational basis standard. This distinction
is caused by Congress's reference to state laws that differ in the application of their
restoration rules. See McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir. 1995)
(noting the different types of restoration mechanisms employed by different states,
6
The Fifth Amendment due process clause incorporates the principles of
equal justice under the law applicable to the federal government. See Lyng v.
Castillo, 477 U.S. 635, 636 n.2 (1986).
11
from automatic restoration upon release from imprisonment to no restoration at all),
cert. denied, 516 U.S. 1121 (1996). The distinction between misdemeanants and
felons has not been addressed by a court of appeals under § 922(g)(9), but it has been
addressed under related circumstances. The Second Circuit faced a similar issue in
McGrath, involving a felon who, because he received a suspended sentence, did not
forfeit his civil rights and thus could not have them restored under § 921(a)(20). The
court rejected the defendant's equal protection claim that he was invidiously
discriminated against because other, more serious felons were able to use the
restoration exception merely because their felony conviction caused them to lose their
civil rights, which were later restored. See id. at 1007. The court found that
Congress intended the effect--if not the result--that occurred in that case, noting that
the civil rights restoration exception was passed in response to a Supreme Court case
which tried to federalize a felon's status. See id. at 1008-09 (noting the imperfections
of the statute, yet finding it rationally related to a legitimate governmental interest).
The court found it was rational for Congress to rely on "a state's judgment that a
particular person or class of persons is, despite a prior conviction, sufficiently
trustworthy to possess firearms," despite the anomalous results. Id. at 1009. Other
courts have similarly found that Congress has a rational basis for relying on state
restoration statutes in distinguishing between who can possess a firearm and who
cannot. See, e.g., United States v. Collins, 61 F.3d 1379, 1383 (9th Cir.), cert. denied,
516 U.S. 1000 (1995); Phelps, 17 F.3d at 1345.
Congress knew that the states had widely divergent laws regarding pardon,
expungement, and restoration of civil rights. This was true not only when Congress
enacted § 921(a)(20), but even more so when it enacted § 921(a)(33) in 1996, ten
years after enacting the much criticized restoration exception in § 921(a)(20). See
McGrath, 60 F.3d at 1009 (noting various courts that have criticized the disparate
treatment involving the restoration exception of § 921(a)(20) based on divergent state
laws). Yet, Congress continued to look to state law to define the restoration
12
exception, noting that the exception in § 921(a)(33) was modeled after that contained
in § 921(a)(20). See 142 Cong. Rec. S11872-01, *S11877.
Congress was cognizant of the disparity it would create. See id. ("Loss of these
[civil] rights generally does not flow from a misdemeanor conviction, and so this
language is probably irrelevant to most, if not all, of those offenders covered because
of the new ban.") (statement of Sen. Lautenberg). However, Congress was concerned
with domestic abuse offenders who were successful in pleading a felony charge down
to a misdemeanor and thus escaping the effect of the felon-in-possession statutes. See
id. at S11876. An earlier version of the bill did not cover attempted use of physical
force or threatened use of a weapon. See id. at S11877. The change reflects
Congress's concern that an individual in a domestic relationship who would attempt
to use physical force or threaten use of a weapon was as dangerous as one who
actually committed an act of physical force and similarly should not be allowed to
possess a firearm. See id. Congress was concerned with the exact situation faced
here: preventing a known (from the fact of the misdemeanor conviction) domestic
abuser from later using a firearm to inflict the next bout of abuse. See id. at 11876.
The district court reached the same conclusion. (See Sentencing Tr. at 119 ("[I]f
there was ever a case which proved the wisdom of congressional action in prohibiting
a person convicted of domestic assault from possessing a firearm, it's a case such as
this.").)
Smith notes various Iowa felonies for which a convicted felon may seek the
restoration of civil rights, including attempted murder, manslaughter, and third degree
sexual assault. See Iowa Code § 914.7. He argues that there is no rationale for
allowing an individual who has attempted to murder his spouse to possess a firearm
by way of the restoration exception while preventing an individual who has "merely"
(if that is the correct term) pushed his wife from doing so.
13
Smith has conveniently ignored the whole of the exception within § 921(a)(33).
Congress did not limit the exception to restoration of civil rights, but also provided
other methods--expungement and pardon--by which Smith could make use of the
exception. For example, he could seek to have his misdemeanor conviction pardoned
under Iowa law. See Iowa Const. art. 4, § 16; Iowa Code § 914.2 (1997) ("[A] person
convicted of a criminal offense has the right to make application . . . to the governor
for a reprieve, pardon, . . . or restoration of rights of citizenship at any time following
the conviction."). Notably, in Iowa, the method for receiving a pardon and for
receiving the restoration of one's civil rights is the same--both require application to
the governor. See id. Though a pardon may not be Smith's preferred method of
avoiding the consequences of his prior misdemeanor conviction, it still allows Smith
an avenue for fitting within the exception to § 921(a)(33). See McGrath, 60 F.3d at
1009 (noting Congress provided other mechanisms of relief); National Ass'n of Gov't
Employees, Inc. v. Barrett, 968 F. Supp. 1564, 1574-75 (N.D. Ga. 1997) (finding no
equal protection violation under § 922(g)(9) because Congress provided
misdemeanants the same mechanisms for avoiding the firearm ban under § 921(a)(33)
as it provided felons under 921(a)(20)), aff'd, Hiley v. Barrett, 155 F.3d 1276, 1277
(11th Cir. 1998) (affirming "for the reasons stated in the district court's thorough and
well-reasoned order.").
We hold that, because Smith can receive a pardon from the governor of Iowa,
similar to a felon who can receive restoration of his civil rights, § 921(a)(33) does not
invidiously discriminate against him. Further, it was entirely rational for Congress
to extend the firearm ban to those convicted of misdemeanors where physical force
was used involving domestic relationships, relying on state law to determine who
would fit within the exception. Thus, Smith's equal protection rights were not
violated.
III.
14
Smith's remaining contention is that his sentencing violates the Domestic
Violence Clause of the Constitution. See U.S. Const. art. IV, § 4. Suffice it to say
that when that Clause speaks of "domestic Violence" it means insurrection, riots, and
other forms of civil disorder. It has no application to the Congress's powers to
regulate the possession of handguns under the Commerce Clause. Smith's argument
is not only unconvincing--it borders on the frivolous.
15
For the foregoing reasons, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
16