*1 America, UNITED STATES
Plaintiff-Appellee,
Delroy FISCHER, Defendant-
Appellant.
No. 10-3164. Appeals,
United States Court
Eighth Circuit. May
Submitted: 17, 2011.
Filed: June *2 Monzon, Lincoln, NE, argued, A. domestic Carlos violence” as defined in 18 U.S.C. appellant. 921(a)(33)(A) for it did because not have “as attempted AUSA, Denton, argued, Omaha, Sandra Relying force.” the arrest NE, appellee. warrant and affidavit supporting which de- BEAM, MURPHY, and Before conduct, scribed Fischer’s violent the dis- COLLOTON, Judges. Circuit trict court prior concluded that Fischer’s conviction did fit the definition and denied MURPHY, Judge. Circuit his motion to dismiss. Delroy charged pos- Fischer was with Fischer moved to dismiss the indictment of a after having session firearm been a second obtaining time after a nunc pro convicted of a crime misdemeanor of do- tunc order from the Nebraska court stat- mestic violence in violation ing that: § 922(g)(9). pled guilty but Fischer re- right
served the to a decision of appeal to, pled and was [Fischer] deny district court1 his motion to to dis- of, 28-310, violating Neb.Rev.Stat. miss the indictment. We affirm. require does not a finding of as- sault attempted assault on an “inti- January
In Fischer was charged partner”; mate with degree Nebraska state court third domestic assault under Neb.Rev.Stat. 2. That the conviction in this case did § 28-323. The warrant sup- arrest and any findings involve factual that any porting alleged affidavit Fischer had domestic attempted assault or domestic at, struck, yelled bit the nose of his occurred; assault girlfriend, former who was also the mother 3. That insofar record in this pled of his children. no Fischer contest to may case allegations involve of domestic charge an amended assault assault assault, domestic the third under Neb.Rev.Stat. any and all allegations hereby are strick- plea 28-310. At court hearing, his state en from the record. stipulated that court would The district court found that the state take allega- notice of the factual change analysis order its did not affidavit, tions in the arrest warrant and again denied Fischer’s motion. and the court accepted allegations those In response to a later motion in limine the “factual plea. basis” of Fischer’s filed government, Fischer also later, More than years two objection, raised a process due contending girlfriend reported police to the a domestic the state court had not adequately disturbance Fischer. involving By Fisch- advised him that his conviction could serve er’s own gotten angry admission he had as the predicate for a federal fire- shotgun. and fired a He was charged with rejected arms violation. The district possession of a after firearm conviction for argument, concluding this the state misdemeanor crime domestic violence give court had duty no such advice. 922(g)(9). under 18 U.S.C. Fischer subsequently entered a condi- Fischer moved to dismiss the indict- ment, tional guilty plea, reserving the arguing right that his Nebraska convic- “misdemeanor appeal tion was not a crime of the district court’s decision deny Bataillon, Joseph 1. The Honorable F. District Chief of Nebraska. Judge, United District Court for the offense, long proven beyond indict so as it is motion to dismiss the his second Hayes, conditional doubt. ment. Because Fischer’s reasonable denial of his appeal only of the reserved 555 U.S. S.Ct. dismiss, (2009). Fischer waived motion only question
second
L.Ed.2d 816
*3
claim,
raised
which was
process
his due
whether the crime for which Fisch-
here is
ruling.
after
that
See United
months
“has,
convicted
an
the
er was
as
(8th
825,
Limley, 510 F.3d
827
v.
use
force” or
use or
of
Cir.2007) (conditional
“identify
plea must
deadly weapon.”
“the threatened use
aof
for
pretrial
preserved
issues
precisely”
Fischer
The statute under which
review).2
only question
appellate
provides:
was convicted
whether
before this court
is
properly
(1)
person
A
the offense of as-
commits
attempt
of
state court conviction
Fischer’s
in the third
sault
he:
as a
degree qualifies
in the
ed assault
third
(a) Intentionally,
or reckless-
knowingly,
of domestic
“misdemeanor crime
predicate
ly
per-
causes
violence.”
son; or
We review de novo
district
(b)
in menacing
Threatens another
a
motion to dis
court’s denial
manner.
Amerson,
miss
indictment.
28-310(1).
court or-
This
922(g)(9) any
18
at 855. Under
dinarily
“only
of-
predicate
looks
to the
any
“who has been
in
one
convicted
rather than to
un-
fense
the defendant’s
a
vio
of misdemeanor crime
domestic
derlying acts to
determine whether
prohibited
possessing
is
from
a fire
lence”
required
present,”
elements are
A
crime of domestic
arm.
“misdemeanor
(8th
Smith,
620
F.3d
is defined as a “misdemeanor
violence”
Cir.1999),
when,
here,
but
a criminal
Federal, State,
that
under
or Tribal law”
reaches a
con-
range
“broad
element,”
has, “as an
duct,”
warranted,
expanded
an
inquiry is
Amerson,
inquiry
notice question was no had a he domestic is an biting victim’s nose victim, relationship with the that conviction causing bodily harm and intentional act predicate served as misdemeanor crime act, merely threatening it clear of domestic violence for criminal liability *4 § 28- that Fischer was convicted under § 922(g)(9). under 18 U.S.C. We conclude 310(l)(a). Smith, 171 620-21 See F.3d at that district not the court did err in deny- (an to de- expanded inquiry appropriate dismiss, ing motion Fischer’s and affirm portion termine under which of a statute judgment. its convicted). defendant was Fischer further contends that even COLLOTON, Judge, Circuit concurring. 28-310(l)(a) § it does not contain applies, no I see material distinction between requisite element the force because Amerson, this case and United v. hypothetical could cause defendant 854 (per curiam), 599 F.3d using to another without agree panel and I therefore this that must respect, pres- this physical force. In the Delroy affirm Fischer’s conviction based indistinguishable case is from Amer- ent precedent. on circuit Amerson is probably there, The statute at issue Neb.Rev. son. however, wrong, likely and Fischer enti- 28-323(l)(a), nearly § contains the Stat. tled to dismissal of the indictment under 310(l)(a). § Both language as same 28— governing the statutes. prohibit that bod- statutes conduct “causes To for a prosecute Fischer violation of ily injury” and therefore § 922(g)(9), government 18 U.S.C. the encompass range of 599 a broad conduct. that previously must show he was convict- Fischer, at F.3d 855. Like the defendant ed of a “misdemeanor crime of domestic object in Amerson state did to a violence.” This crime is defined as an establishing the facts court’s recitation of that, characteristics, among offense other force at physical guilty his his “has, element, an the use or as so, hearing. doing In Id. he “assented force, use physical of or the threatened use satisfy findings factual the force re- deadly of weapon.” 18 U.S.C. 921(a)(33)(A)(ii).” § of quirement 921(a)(33)(A)(ii). here, Because Amerson controls the Id. concluding court err in district did not difficulty with Amerson is the previous qualified conviction holding requirement court’s that “the force misdemeanor crime of domestic violence. 921(a)(33)(A)(ii)” of 18 was satis- findings” fied “factual in the defen- correctly
The district court determined prior proceedings dant’s state court nunc order pro that the state court’s tunc the used girl- defendant force his analysis. order change did this That 599 F.3d at The dispositive friend. only previous clarified that Fischer’s (a)(S3)(A)(ii) under question 921 is not under did viction 28-310 actually whether the defendant used requiring not contain an element force offense, committing an misdemeanor but partner” Fischer’s victim was “intimate “has, in na- the that his assault was “domestic” whether offense of conviction 1010 force, by guile, deception, or but use the use omission.”) (internal quota court force.” The federal should even deliberate omitted); record of defendant’s
use tion v. Perez-Var United States Cir.2005) only (10th to de- prior 1282, 1286-87 conviction state gas, 414 F.3d under state law was termine (citing bodily injury examples causing offense See the offense conviction. in front by intentionally placing a barrier (8th Howell, v. 622-23 accident, causing of a car or intentional Cir.2008) (“If statute reaches predicate chemi ly exposing someone hazardous conduct, range may this a broad cals); Ashcroft, Chrzanoski expand inquiry charging to review Cir.2003) (“[Hjuman (2d experi instructions, only but papers jury in examples numerous suggests ence part determine which causing physical injury without tentionally violated.”). defendant Once who the use of such as a doctor identified, analysis court’s conviction is deliberately withholds vital medicine from must focus the elements that offense. a sick v. Vin patient.”); cf. Ashcroft, Leocal U.S. See Cir.2011) ton, 485-86 (2004) 377, 160 (explain- S.Ct. L.Ed.2d *5 that a (holding Missouri assault ing comparable language attempted has as an element the use or 16(a) § us to look to the “requires force, use of com physical person where a conviction, ... elements of the offense mits crime if he to cause “[ajttempts relating than to particular rather facts injury an knowingly physical or causes to crime”). petitioner’s to by deadly weap other means person aof case, In this was convicted ”) or dangerous (quoting instrument attempted assault in the third un degree 565.060.1(2)) § (emphasis Mo.Rev.Stat. §§ 28-201 der Neb.Rev.Stat. and 28- added); v. Malloy, United 310(l)(a). record shows 852, (holding 859-60 intentionally he was convicted for requiring Iowa statute that the defendant knowingly bodily to attempting “cause[] injury” resisting or “inflict[ ] while injury person.” to another has, peace as an ele obstructing officer 310(l)(a); 26, § at R. Doc. 3-14. The 28— ment, use, use, attempted or threat bodily inju to cause attempting ened physical against per use of force ry person appear to another does to “difficult, another, son of because it was have, attempted as an to how the impossible, imagine physical use of because the State charged conduct could carried out with be can establish that the offense was commit out actually using physical force or proving ted without a use another”) (internal quotation argument, use of force. At oral counsel omitted); Smith, 171 F.3d United States v. example gave of defendant intention 617, Cir.1999) (holding n. 2 620-21 & ally signaling the driver of vehicle that “an of pleaded guilty defendant roadway knowing is clear while that the fense physical with an element of force likely driver is to cause an accident meaning within of 18 U.S.C. injury by suffer Judicial deci proceeding. 921(a)(33)(A)(ii),” § where the offense concerning comparable pro sions statutes required proof of an “act which conviction analysis. vide similar See United to, pain injury cause or intended to 874, Villegas-Hernandez, 468 F.3d 880-81 (5th Cir.2006) (“[I]t physical which is intended to result in seems individual insulting will be could be of intentional in contact which assault offen 708.1(1) another,” injury by the third sive caused not Iowa Code added), (emphasis physical and “such
tact, by necessity, requires physical force complete”).
Unlike the residual clause of 18 U.S.C. 924(e)(2)(B)(ii), under which an offense qualify felony” pres-
can as a “violent if it potential
ents a serious risk “ordinary States,
case,”
James
550 U.S.
127 S.Ct.
(2007), the rule of is that qualifying offense must have the use or force “as an
element,” definition means that
proof required of that fact every case. Vargas-Duran,
United States v. (5th Cir.2004) (en banc); but cf. Salean,
United States v. (8th Cir.2009). worse, For better or Congress
the decision of to define the
scope 922(g)(9) by reference to ele-
ments rather than underlying facts means persons may
that some actually use force *6 committing
while a misdemeanor offense spouse partner, yet intimate provision’s
remain outside that criminal
prohibition. courts, course, must
apply written, the statutes as it ap-
pears to me that prohibit- Fischer is not a
ed under the governing definitions. PYE, Appellant,
Lionel AIRE, INC.,
NU also known as NuAire
International, Inc., Appellee.
No. 10-2243. Appeals, States Court of
Eighth Circuit.
Submitted: Feb. 2011.
Filed: June