United States v. Cody James Horse Looking
2016 U.S. App. LEXIS 12680
| 8th Cir. | 2016Background
- Cody James Horse Looking was charged in 2014 under 18 U.S.C. § 922(g)(9) for unlawful firearm possession based on a 2010 South Dakota conviction for "Simple Assault Domestic Violence" (S.D. Codified Laws § 22-18-1).
- The South Dakota statute lists multiple alternative offenses (divisible): (1) attempt to cause bodily injury; (4) attempt by physical menace/credible threat to put another in fear; (5) intentionally causes bodily injury.
- The indictment charged Horse Looking in the alternative under subsections (1), (4), and (5) and alleged a domestic relationship.
- State-court records (order suspending sentence and revocation) and the indictment did not specify which statutory alternative formed the basis of the conviction.
- Plea colloquy showed Horse Looking admitted pushing his wife and the victim had abrasions; the record supported convictions under either subsection (5) (intentional bodily injury) or (4) (attempt by physical menace), but did not definitively identify which.
- The government argued the modified categorical approach permits treating the conviction as a qualifying misdemeanor crime of domestic violence; the court found the record too ambiguous and reversed the federal conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Horse Looking’s South Dakota conviction qualifies as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 922(g)(9) (requires as an element use/attempted use of physical force or threatened use of a deadly weapon) | Government: Plea colloquy and victim testimony establish Horse Looking was convicted under subsection (5), which requires intentional bodily injury and thus use of force | Horse Looking: Conviction could have been under subsection (4), which can be satisfied without the use/attempted use of physical force, so it is not necessarily a qualifying offense | Reversed: Record ambiguous; cannot conclude conviction necessarily had the force element, so § 922(g)(9) predicate not established |
Key Cases Cited
- United States v. Castleman, 134 S. Ct. 1405 (statute must necessarily have as an element the use/attempted use of physical force for a misdemeanor domestic-violence predicate)
- Shepard v. United States, 544 U.S. 13 (limitations on judicial-records review under the modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (categorical approach and demand for certainty in predicate-offense analysis)
- Descamps v. United States, 133 S. Ct. 2276 (divisible statutes and the modified categorical approach)
- Johnson v. United States, 559 U.S. 133 (limits on expanding record evidence when applying modified categorical approach)
- United States v. Fischer, 641 F.3d 1006 (8th Cir.) (distinguishing cases where facts compel an intentional-bodily-injury conviction)
- United States v. Martinez, 756 F.3d 1092 (8th Cir.) (explaining the sole permissible purpose of the modified categorical approach)
- United States v. Smith, 171 F.3d 617 (8th Cir.) (statutes forbidding acts intended to place another in fear may not necessarily involve physical force)