316 F. Supp. 3d 949
N.D. Tex.2018Background
- Defendant Christopher Maurice Daniels indicted under 18 U.S.C. § 922(g)(9) for firearm possession after a Tennessee "domestic assault" conviction.
- Tennessee domestic-assault offense incorporates Tenn. Code Ann. § 39-13-101(a), which lists three alternative prongs: (1) causing bodily injury; (2) intentionally or knowingly causing another to reasonably fear imminent bodily injury; (3) offensive/provocative physical contact.
- Daniels moved to dismiss, arguing his Tennessee conviction did not necessarily have the § 921(a)(33)(A)(ii) element (use/attempted use of physical force or threatened use of a deadly weapon) required to qualify as a "misdemeanor crime of domestic violence."
- Government urged the statute is divisible and that Shepard-type records show Daniels was convicted under § 39-13-101(a)(1) (a qualifying prong), or alternatively that all prongs qualify.
- Court applied the modified categorical approach, found the plea record did not identify whether Daniels pleaded to (a)(1) or (a)(2), and examined whether (a)(2) necessarily contains the § 921(a)(33)(A)(ii) element.
- Court concluded § 39-13-101(a)(2) can be violated without offensive physical contact or attempted contact (e.g., threatening gestures/words causing fear) and therefore (a)(2) lacks the necessary element; indictment dismissed for failure to charge a § 922(g)(9) offense.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Daniels) | Held |
|---|---|---|---|
| Whether the court may consult Shepard documents to identify which prong of Tenn. § 39-13-101(a) defendant pleaded to | Shepard documents show Daniels pleaded to (a)(1) or support isolating (a)(1) | Shepard materials do not conclusively identify the statutory prong of the plea; affidavit of complaint is not a proper Shepard charging instrument in Tennessee | The plea record did not establish whether Daniels pleaded to (a)(1) vs (a)(2); affidavit of complaint is not treated as a charging document under Shepard here |
| Whether § 39-13-101(a) is divisible for modified categorical analysis | Statute is divisible; court may identify the specific prong and apply federal generic offense only to that prong | Even if divisible, the Shepard record does not permit narrowing to a qualifying prong | Court assumed divisibility but found Shepard records insufficient to isolate the prong pleaded to |
| Whether § 39-13-101(a)(2) (intentional causing of reasonable fear) necessarily includes "use or attempted use of physical force, or threatened use of a deadly weapon" under 18 U.S.C. § 921(a)(33)(A)(ii) | (Gov) The threatening act/gesture (e.g., clinched fist) is a "use of physical force" under Castleman/Voisine; many states' statutes would be excluded otherwise | (Daniels) (a)(2) can be applied without offensive touching; thus it does not have the § 921(a)(33)(A)(ii) element | Court held (a)(2) does not necessarily require use/attempted use of physical force or threatened use of a deadly weapon; it can criminalize threats/gestures that cause fear without contact |
| Whether Daniels' conviction qualifies as a predicate misdemeanor crime of domestic violence under § 922(g)(9) | If validation of (a)(1) or treating (a)(2) as qualifying, conviction qualifies | Conviction does not necessarily include the required federal element, so it cannot serve as a § 922(g)(9) predicate | Because the record cannot show the plea was to a qualifying prong and (a)(2) does not qualify, the conviction does not necessarily qualify; indictment dismissed |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes the categorical approach for defining predicate offenses)
- Shepard v. United States, 544 U.S. 13 (limits evidence courts may consult to identify the offense of conviction under the modified categorical approach)
- United States v. Castleman, 572 U.S. 157 (interprets "physical force" to encompass offensive touching for § 921(a)(33)(A))
- Voisine v. United States, 136 S. Ct. 2272 ("use" covers reckless employment of physical force)
- Johnson v. United States, 559 U.S. 133 (common-law battery satisfied by slightest offensive touching)
- United States v. Herrold, 883 F.3d 517 (5th Cir.) (discusses divisibility and modified categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (requires a "realistic probability" that a state would apply a statute to non-qualifying conduct)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (same standard for realistic probability)
- United States v. Mathis, 136 S. Ct. 2243 (divisibility inquiry guidance)