Lead Opinion
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. MOORE, J. (pp. 592-93), delivered a separate concurring opinion. McKEAGUE, J. (pp. 593-97), delivered a separate dissenting opinion.
OPINION
The government appeals orders granting Defendant James Castleman’s motion to dismiss two counts of his indictment, which charged Castleman with possession of a firearm after conviction for a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9), and denying the government’s motion for reconsideration. Because the district court correctly interpreted § 922(g)(9), we AFFIRM the district court’s judgment.
BACKGROUND
In 2001, Castleman pleaded guilty to one count of misdemeanor domestic assault in violation of Tennessee Code § 39-13-111(b). That statute makes a defendant
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.
Tenn.Code Ann. § 39-13-101. Castle-man’s 2001 indictment asserted that he “did intentionally or knowingly cause bodily injury to [the mother of his child]” in violation of § 39-13-lll(b), to which he pleaded guilty on July 16, 2001.
Seven years later, federal agents discovered that Castleman and his wife were buying firearms from dealers and selling them on the black market. Under the Castlemans’ scheme, Castleman’s wife purchased firearms, allegedly lied on federal firearms paperwork by stating that she was the actual buyer of the firearms, and turned the firearms over to her husband, who was legally prohibited from purchasing firearms because of his domestic assault conviction. One of the firearms Castleman’s wife allegedly purchased was recovered in a homicide investigation in Chicago, Illinois. An investigation by the Bureau of Alcohol, Tobacco, Firearms & Explosives led agents to the Castlemans.
A grand jury indicted Castleman on two counts of possession of a firearm after being “convicted ... of a misdemeanor crime of domestic violence,” in violation of 18 U.S.C. § 922(g)(9). Section 922(g)(9) states that:
It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g)(9) (emphasis added). Section 921(a)(33)(A) of Title 18 defines a “misdemeanor crime of domestic violence” to include any offense that:
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) 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, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victimf.]
18 U.S.C. § 921(a)(33)(A) (emphasis added).
On April 30, 2010, the district court dismissed the § 922(g)(9) counts in Castleman’s indictment, reasoning that Castleman’s misdemeanor domestic assault conviction did not qualify as a domestic violence crime requiring the “use or attempted use of physical force” as defined in 18 U.S.C. § 921(a)(33)(A)(ii). Drawing upon cases from some of our sister circuits, the district court read § 921(a)(33)(A)(ii) to require “force in the sense of violent contact” instead of merely “force as a scientific concept relating to the movement of matter.” (Order 5, R. 108.) In adopting that construction of § 922(g)(9), the district court rejected the construction adopted by other circuits and urged by the government, under which a
DISCUSSION
I. Legal Framework
We review de novo a district court’s decision of whether a prior conviction qualifies as a predicate offense under 18 U.S.C. § 922(g)(9). See United States v. Gross,
II. Construction of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)
Like other federal appellate courts that have applied § 922(g)(9) to prior state convictions, we must determine the degree of force necessary for a misdemeanor domestic battery offense to qualify as a misdemeanor crime of domestic violence. See, e.g., Hays,
The government’s argument is one of statutory interpretation. In construing § 922(g)(9), we seek Congress’ intent and refer first to the statute’s plain language. Chrysler Corp. v. C.I.R.,
The government’s argument is unpersuasive. It overlooks the nearly identical language of § 921(a)(33)(A) and 18 U.S.C. §§ 16(a) and 924(e)(2)(B)®. Section 921(a)(33)(A)(ii) defines a “misdemeanor crime of domestic violence” as a crime that “has, as an element, the use or attempted use of physical force,” against a victim with whom the defendant shares a domestic relationship.
That inference gains strength in light of the order in which Congress adopted the statutes. Congress adopted §§ 921(a)(33)(A)(ii) and 922(g)(9) over a decade after it codified the “use of physical force” provisions in §§ 16(a) and 924(e)(2)(B)®, and, as we explained above, Congress used nearly identical language. See Pub. L. No. 104-208, § 101(f), 110 Stat. 3009-369, 3009-372 (1996); Pub. L. No. 99-308, § 102, 100 Stat. 451 (1986); Pub. L. No. 98^73, § 1001(a), 98 Stat. 2136 (1984). We consider a statute with language modeled on that of an earlier statute to function as a legislative interpretation of the statute in question, and give the earlier statute “great weight in resolving any ambiguities and doubts” in the later one. Beckert v. Our Lady of Angels Apartments, Inc.,
The Fourth Circuit recently came to the same conclusion in United States v. White,
The White court found Johnson’s reasoning in regard to § 924(e)(2)(B)® “compelling if not overwhelming” in its application to § 921(a)(83)(A)(ii). White,
The dissent finds fault in our decision to construe §§ 921(a)(33)(A)(ii) and 922(g)(9) in light of §§ 16(a) and 924(e)(2)(B)®, and Johnson’s gloss on the latter statutes, because Johnson postdated the adoption of all the statutes in question. But this line of reason is hardly novel. For example, the Supreme Court used the identical line of argument in Smith v. City of Jackson,
As Smith makes clear, the Supreme Court (or other federal courts) need not have answered a particular question about a statute’s meaning for the court to conclude that a construction of an earlier-adopted statute is “a precedent of compelling importance” to the interpretation of an identical, later-adopted statute. Id. at 234,
The government resists this conclusion by emphasizing § 922(g)(9)’s reference to “misdemeanor” offenses, but the government asks us to put more weight on the term “misdemeanor” than Congress meant the term to bear. Had Congress intended the word “misdemeanor” to have the effect suggested by the government, then Congress would have had no need to modify “misdemeanor” with the phrase “crime of violence.” Congress could simply have prohibited any person convicted of a “misdemeanor domestic assault or battery offense” from possessing a firearm. It chose not to do so.
Additionally, as the Supreme Court has explained in a different doctrinal context, the term “misdemeanor” “meant very different things in different common-law contexts” and was not defined in reference to the degree of force a misdemeanor offense required. Atwater v. Lago Vista,
Nor did Johnson treat the misdemean- or-felony distinction in the manner the dissents says it did. Though the Court in Johnson declined to use terms associated with misdemeanor offenses to define “violent felony,” it does not follow that the passage in question indicates a practice by the Court of incorporating the misdemean- or-felony distinction directly into the ACCA and § 922(g)(9). Instead, the relevant portion of Johnson suggests that the misdemeanor-felony distinction is not a viable framework for determining the level of violence an offense must require to qualify as a violent felony. See Johnson,
III. Categorical Analysis
Having determined the degree of force required in a misdemeanor crime of domestic violence, we turn to the question of whether Tennessee Code § 39-13-111(b) categorically qualifies as a misdemeanor crime of domestic violence. See Gibbs,
In McMurray, we held that a Tennessee aggravated assault conviction did not qualify as a predicate offense for purposes of 18 U.S.C. § 924(e)(2)(B)®, because the statute criminalizes reckless conduct. 653 F.3dat 376. The McMurray defendant had been convicted of violating Tennessee’s aggravated assault statute, which incorporates § 39 — 13—101. Id. at 372. We limited our inquiry to whether a conviction under “the serious-bodily-injury prong” of the aggravated assault statute satisfied the
Castleman pleaded guilty to an offense less severe than did the defendant in McMurray. Castleman pleaded guilty to misdemeanor domestic assault, for which a defendant is liable if he “commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Tenn.Code Ann. § 39 — 13—111(b). McMurray held that the violation of a statute that builds on § 39-13-101 and makes it a crime to cause “serious bodily injury” does not require the use of violent force. It stands to reason, then, that the violation of a statute that also builds on § 39-13-101 but makes it a crime only to cause “bodily injury,” serious or not, also does not require the use of violent force. Therefore, a defendant could violate Tennessee Code § 39-13-lll(b) both in a manner that constitutes a “misdemeanor crime of domestic violence” and in a manner that does not.
This reasoning is consistent with United States v. Anderson,
In this case, by contrast, the statute does not require proof of a serious physical injury. Rather, it requires proof of just some physical injury, regardless of how slight. Castleman could have caused a slight, nonserious physical injury with conduct that cannot be described as violent. Castleman may have been convicted for causing a minor injury such as a paper cut or a stubbed toe, in which he knowingly acted in a manner that caused a domestic relations bodily harm but did so using less than strong physical force. Therefore, Castleman’s conviction under Tennessee Code § 39-ll-lll(b), in which he caused an unspecified bodily injury, is not a misdemeanor crime of domestic violence.
IV. Modified Categorical Analysis
Having concluded that Tennessee Code § 39 — 13—111(b) is not categorically a misdemeanor crime of domestic violence, we now consider whether Castleman’s conviction qualifies as such given the proof of his conduct available to us. Gibbs, 626
The government argues that it was impossible for Castleman to cause his victim any bodily injury without using the degree of force required under § 921(a)(33)(A)(ii). That argument is unpersuasive inasmuch as an individual can cause an unspecified bodily injury with nonviolent physical force. Tennessee law supports this proposition. Tennessee law defines “bodily injury” to include “a cut, abrasion, bruise, burn or disfigurement, physical pain or temporary illness or impairment of the function of a bodily member, organ or mental faculty.” Tenn.Code Ann. § 39-ll-106(a)(2). A defendant himself need not necessarily use “violent ” and “strong physical force” to cause a cut, an abrasion, or a bruise. Johnson,
Our decision is consistent with United States v. Alexander,
The government overlooks three important distinctions between Alexander and this case. First, we decided Alexander before the Supreme Court decided Johnson, so we must look to Johnson in deciding whether an offense requires the use or attempted use of physical force. Second, the Michigan statute at issue in Alexander required the government to prove that the defendant caused an officer a bodily injury “requiring medical attention or medical care.” Id. (quoting M.C.L.A. § 750.81d(2)). Indeed, our conclusion that the defendant’s crime was a violent felony was largely grounded on the fact that the conviction “require[d] causing an actual physical injury sufficiently severe to require medical care.” Id. By contrast, Castleman may have pleaded guilty for doing no more than swatting or scratching the victim, see State v. Wachtel, No. M200300505-CCA-R3-CD,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
Notes
. Unlike § 924(e)(2)(B), § 921(a)(33)(A)(ii) does not contain a clause listing particular common law violent felonies ("burglary, arson, or extortion") or a residual clause ("otherwise involves conduct that presents a serious potential risk of physical injury to another”). Therefore, cases construing the residual clause in § 924(e)(2)(B)(ii) do not inform this appeal. See Sykes v. United States, - U.S. -,
. We also note that other federal courts have come to the opposite conclusion and held that an offense requiring only slight touching can qualify as a misdemeanor crime of domestic violence. See United States v. Griffith,
. In Johnson, the Supreme Court concluded that a battery offense was not a "violent felony,” in part because the Court found it "unlikely that Congress would select a term of art defining 'violent felony' a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.”
Insofar as the Court's statement does bear on § 922(g)(9), it supports a proposition that we have applied here. At bottom, Johnson’s discussion of the common-law heritage of battery offenses reflected the established practice of presuming that Congress intended to incorporate the common-law meaning of a term absent evidence to' the contrary. See Info-Hold. v. Sound Merchandising, Inc.,
Concurrence Opinion
concurring.
Although I agree with the majority’s construction of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9), and the decision to affirm the district court’s judgment, I write separately to address the application of the modified-categorical analysis. I agree that the force requirement for a misdemeanor crime of domestic violence is identical to that specified under the crime-of-violence statute and the ACCA. In light of that conclusion, I believe this case presents a straightforward application of the Supreme Court’s opinion in Johnson v. United States, — U.S. —,
At bottom, McMurray involved the same assault statute underlying the domestic-violence offense at issue here, which prohibits “[ijntentionally, knowingly or recklessly caus[ing] bodily injury to another.” Tenn.Code Ann. § 39-13-111; see also McMurray,
Although some Sixth Circuit, cases, such as United States v. Alexander,
Applying this standard to the Tennessee assault statute, we have questioned whether an element specifying that a defendant “ ‘cause[ ] serious bodily injury’ necessarily requires the ‘use of physical force’ ” for purposes of the ACCA. McMurray,
Dissenting Opinion
dissenting.
The majority relies upon United States v. McMurray,
I.
The majority finds the distinction between misdemeanors and felonies in the ACCA insignificant. In doing so, the majority ignores the fact that the Supreme Court’s violent felony exception to the normal common law interpretation of “physical force” in Johnson v. United States, — U.S. —,
In Johnson, the Supreme Court determined that the physical force element of the “violent felony” definition in the ACCA was not satisfied by mere offensive touching. Instead the Court interpreted the statute to require violent physical force. Here, the majority takes Johnson’s “violent felony” standard and applies it to the ACCA’s “misdemeanor crime of domestic violence” found at 18 U.S.C. § 921(a)(33)(A). In so doing, the majority misinterprets Johnson.
The Johnson Court held that “although a common-law term of art should be given its established common-law meaning,” Johnson,
Just as using the mere touching misdemeanor standard of physical force to de
The majority supports its application of Johnson by noting that the ACCA’s misdemeanor language at § 921(a)(33)(A) mirrors its violent felony language. However, the Johnson exception was not clarified until after both statutes were adopted. Despite its extended explanation, the majority thus pretends that Congress acted with full knowledge of the Johnson felony exception instead of with the common law understanding when writing § 921(a)(33)(A). Given the chronology of events, this cannot be the case.
In sum, Johnson rejected the argument that the misdemeanor standard should control the felony definition. By extension, the felony standard should not control the misdemeanor. Simply applying the narrow felony exception to the broader class of misdemeanor domestic assaults ignores the distinction central to Johnson.
II.
In determining that Tennessee’s assault statute categorically lacks an element of “the use or attempted use of physical force,” the majority relies exclusively on McMurray. As I explained in my dissent there, McMurray is out of step with binding precedent in this circuit. And “when a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case.” Darrah v. City of Oak Park,
Nevertheless, under a modified categorical analysis Castleman’s prior domestic assault conviction satisfies the heightened Johnson standard and does not run afoul of McMurray. Castleman was convicted under Tenn.Code Ann. § 39-13-111 after he pled guilty to “intentionally or knowingly” causing bodily injury to the mother of his child. This Court’s holding in McMurray “rest[ed] on the Tennessee statute’s inclusion of reckless conduct,” McMurray,
The majority distinguishes Alexander because the Michigan statute necessitated injury “requiring medical attention or medical care.” However, that is not the minimum standard in Johnson, which required only “force capable of causing physical pain or injury to another person.” Johnson,
This Court’s decision in United States v. Gloss,
Any robbery ... that causes serious bodily injury, falls under the first clause of the definition of violent felony, as it necessarily involves “the use, attempted use, or threatened use- of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). It makes no difference that the defendant was not the person who committed the aggravated robbery. See, e.g., United States v. Brown,550 F.3d 724 , 729 (8th Cir.2008). All that matters is that someone did so, and that the defendant knowingly provided substantial assistance to that person.
Id. at 319 (emphasis in original). The rule in this Circuit after today’s decision is that while the mere facilitation of another’s crime resulting in serious bodily injury is necessarily a crime involving physical force, directly causing such bodily injury is not. .Under this rule assaulting one’s girlfriend does not trigger the ACCA — but providing assistance to a third party who robs one’s girlfriend, during which she gets assaulted, does. This- defies common sense.
Much of the confusion results from the rewording of common law elements in the Model Penal Code.
The solution is to hold that knowingly or intentionally causing bodily injury necessitates use of physical force. That would solve the apparent contradiction between Alexander and Gloss, which addressed intentional or knowing infliction of bodily injury, and McMurray, which was limited to reckless infliction of bodily injury. Other circuits have already adopted this rule. The First Circuit, for example, in evaluating Maine’s assault statute (which is almost identical to Tennessee’s) has found physical force a necessary element: “Common sense supplies the missing piece of the puzzle: to cause physical injury, force necessarily must be physical in nature. Accordingly, physical force is a formal element of assault under the bodily injury branch of the Maine statute.” United States v. Nason,
Today’s decision separates the Model Penal Code’s element of intentionally or knowingly causing bodily injury from the ACCA’s element of physical force. This extension of McMurray has the effect of making the “misdemeanor crime of domestic violence” provision of the ACCA a dead letter in Tennessee, as well as any o.ther state using the Model Penal Code’s definition of assault to punish domestic abusers.
The Supreme Court has already rejected an interpretation of § 921(a)(33)(A) that would make the ACCA a “ ‘dead letter’ in some two-thirds of the States from the very beginning.” United States v. Hayes,
Practical considerations strongly support our reading of § 921(a)(33)(A)’s language. Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child*597 abuse ultimately are not charged with or convicted of felonies.” 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg). By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of § 922(g)(9) sought to “close this dangerous loophole.”
Id. at 22986.
Construing § 922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.
Id. at 426-27,
For these reasons I disagree with the reasoning of the majority today and dissent from the majority’s attempt to extend McMurray’s reach.
. Alexander involved Michigan’s statute regarding assaulting an officer:
Looking exclusively at the statutory definition of the offense, the plain language of this provision indicates that “causing bodily injury” is an element of the crime as defined by M.C.L.A. § 750.81 d(2). Violating this statute would therefore entail committing a crime of violence because the element of "causing bodily injury” involves both the "use of physical force against the person of another” (U.S.S.G. § 4B1.2(a)(1)) and "conduct that presents a serious potential risk of physical injury to another” (U.S.S.G. § 4B1.2(a)(2)). Indeed, a conviction under M.C.L.A. § 750.81d(2) requires more than simply a "risk” of physical injury; a conviction requires causing an actual physical injury sufficiently severe to require medical care. If Alexander was in fact convicted under that statute, he would have necessarily committed a crime of violence.
Alexander,
. Tennessee’s assault statute follows the Model Penal Code, which defines simple assault in part as ”attempt[ing] to cause or purposely, knowingly or recklessly causes[ing] bodily injury to another.” Model Penal Code § 211.1. Prior to codification Tennessee’s common law definition of assault, similar to the ACCA, focused on the act rather than the result. "An assault is an attempt or offer to do a personal violence to another. It is an inchoate violence, with the present means of carrying the intent into effect.” Richels v. State,
. "Violent felonies” under the ACCA and "crimes of violence” under the sentencing guidelines are analyzed the same way. United States v. Gibbs,