United States v. Fischer
2011 U.S. App. LEXIS 12239
| 8th Cir. | 2011Background
- Fischer was charged with possession of a firearm after a misdemeanor domestic violence conviction under 18 U.S.C. § 922(g)(9); he pled guilty but reserved the right to appeal the district court's denial of a Motion to Dismiss the indictment.
- In January 2006, Fischer pled no contest to amended state charges of attempted assault in the third degree under Neb. Rev. Stat. § 28-310, with the court taking judicial notice of the arrest warrant and affidavit as the factual basis for the plea.
- Over two years later, after a domestic disturbance involving Fischer, he was federally charged under § 922(g)(9) based on that Nebraska conviction.
- Fischer moved to dismiss, arguing the Nebraska conviction did not have an element of force under § 921(a)(33)(A); the district court found the record supported the force element and denied the motion.
- Fischer obtained a nunc pro tunc order from the Nebraska court stating that his conviction did not require an intimate-partner or domestic-violence finding; the district court held this did not change its analysis and denied the motion again.
- Fischer entered a conditional guilty plea, reserving appeal only of the second denial; he waived due-process claims, leaving only the predicate-offense question for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fischer's Nebraska conviction qualifies as a misdemeanor crime of domestic violence under § 921(a)(33)(A). | Fischer argues no force element in the offense, so not a predicate. | Government contends the record shows force in the underlying conduct, satisfying the element by application of Amerson. | Yes; the conviction satisfies the force-element requirement. |
| Does the Nebraska nunc pro tunc order alter the predicate-offense analysis? | Nunc pro tunc order shows lack of intimate-partner/domestic element, which could affect predicate quality. | State court order clarifies record but does not change the force analysis for § 921(a)(33)(A). | No; the nunc pro tunc order did not change the predicate analysis. |
| Whether Fischer's due-process objection to information provided by the state court was properly reviewable. | Due-process concerns were preserved and should be reviewed. | Claim was waived by the conditional plea and not properly preserved for review. | Not reached/waived; the court confines review to the predicate-offense issue. |
Key Cases Cited
- United States v. Hayes, 555 U.S. 415 (U.S. 2009) (defines 'misdemeanor crime of domestic violence' with relationship and force elements)
- United States v. Amerson, 599 F.3d 854 (8th Cir. 2010) (expanded inquiry for broad-range statutes; supports predicate-analysis approach)
- United States v. Howell, 531 F.3d 621 (8th Cir. 2008) (expands review to charging papers and jury instructions when predicate statute is broad)
- United States v. Smith, 171 F.3d 617 (8th Cir. 1999) (addresses element interpretation for force in predicate offenses)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (elements-focused approach for § 921(a)(33)(A))
- United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc; force element focus for predicate offenses)
- United States v. Salean, 583 F.3d 1059 (8th Cir. 2009) (discusses element-based analysis under § 921(a)(33)(A)(ii))
- United States v. Vinton, 631 F.3d 476 (8th Cir. 2011) (statutory analysis of violent-offense elements)
- United States v. Malloy, 614 F.3d 852 (8th Cir. 2010) (statutory interpretation of 'inflict bodily injury' with force element)