UNITED STATES of America, Appellee, v. Stephen L. VOISINE; William E. Armstrong III, Defendants, Appellants.
Nos. 12-1213, 12-1216.
United States Court of Appeals, First Circuit.
Jan. 30, 2015.
778 F.3d 176
Renee M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.
LYNCH, Chief Judge.
The Supreme Court has directed us, in light of United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of “misdemeanor crimes of domestic violence,” as defined in
Our answer is informed by congressional recognition in
As we see it, this case turns on the unique nature of
We affirm the denial of the motion to dismiss the indictment and information here. That means the conditional guilty pleas the defendants entered are valid and their sentences stand. The question is close and we rule narrowly.
I.
A. Statutory Background
As the Supreme Court observed in Castleman,
Under
The predicate offenses in these cases are convictions under Maine assault statutes.
Maine law explains that “[a] person acts recklessly with respect to a result of the person‘s conduct when the person consciously disregards a risk that the person‘s conduct will cause such a result.”
B. Facts
William E. Armstrong III was convicted in 2002 and 2008 of assaulting his wife in violation of Maine‘s misdemeanor assault statutes,
Armstrong was arrested and federally charged with being a prohibited person in possession of a firearm, in violation of
Stephen L. Voisine was convicted in 2003 and 2005 of assaulting a woman with whom he was in a domestic relationship, in violation of Maine‘s assault statute. In 2009, acting on an anonymous tip, state and local law enforcement officials arrested Voisine on the federal misdemeanor charge of killing a bald eagle in violation of
C. Procedural History
Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that
We consolidated Armstrong and Voisine‘s cases. In a January 18, 2013 opinion, we affirmed the district court‘s decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 Fed. Appx. at 102 (incorporating the reasoning from Armstrong as
Second, the defendants argued that
The defendants petitioned for certiorari. On March 31, 2014, the Supreme Court granted their petitions, vacated the judgments, and remanded “for further consideration in light of United States v. Castleman.” Armstrong v. United States, — U.S. —, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.). In Castleman, the Court had addressed the issue of whether the phrase “use of physical force” in
Castleman resolved the question in agreement with Nason, holding that “Congress incorporated the common-law meaning of ‘force‘—namely, offensive touching—in
This case comes to us following the Supreme Court‘s remand.
II.
In construing
The defendants frame the issue as whether a reckless act can constitute a “use of physical force” and rely on cases interpreting statutes other than
This reframing of the question clarifies our approach to the two arguments raised by the defendants: that Castleman footnote 8 decides this case, and that Castleman‘s analysis of
A. Castleman Footnote 8
The defendants read too much into Castleman footnote 8, which expressly does not resolve the question before us. Nor is their argument made by reference to the cases cited for contrast in the footnote. Each of those cases3 construes a different
Footnote 8 begins by describing the issue as an open question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Supreme Court interpreted
Considering context, section 16(a) is not analogous to the section which concerns us,
Unsurprisingly, the drafting history of
The only case cited in Castleman footnote 8 from the domestic violence context is one in which Congress elected to define the crime with reference to
Even if
On remand of this case to us, the defendants’ brief adds to the cases in the footnote by citing two other
In United States v. Howell, 531 F.3d 621 (8th Cir.2008), also added by the defendants, the predicate statute criminalized reckless “conduct which creates a grave risk of death or serious physical injury to another.” Id. at 624. The court found this provision to be a “catch-all provision applicable to innumerable factual situations,” so a completed “use of physical force” is not always or ordinarily present. Id.
Simply put, we are aware of no case—including the cases in Castleman footnote 8—in conflict with Booker‘s holding that a reckless misdemeanor assault satisfies
B. Structure of Castleman
The defendants present a second argument, which is that Castleman‘s analytical approach to the term “use of physical force” means the conduct of neither defendant here could meet that standard. Castleman held that Congress intended to incorporate the common law meaning of “force” in
The parties approach this as a generalized question. They disagree about whether reckless acts could or could not constitute batteries at common law, and each side marshals support for its view. See, e.g., Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (1921); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (1893); 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(c)(2); 3 William Blackstone, Commentaries *120.
We decline the parties’ invitation to define the mens rea of a common law battery independent of the interpretation Maine gives its own statute. Castleman explains that the term “use of physical force” includes “the type of conduct that supports a
We follow the statutory scheme in evaluating whether a conviction under the Maine statute categorically counts as a “misdemeanor crime of domestic violence.”
1. The Scope of a “Misdemeanor Crime of Domestic Violence”
As Castleman explained,
This view is confirmed by the legislative history of
2. Maine‘s Definition of “Recklessness”
Whatever the common law meaning of battery as to recklessness, Maine characterizes recklessness as a mens rea involving a substantial amount of deliberateness and intent. The statutory definition requires that a person “consciously disregard[ ] a risk that the person‘s conduct will cause” the result.
Maine‘s definition of “recklessly,” like its definition of “knowingly,” includes an element of intentionality and specificity. To act “knowingly” in Maine, the person must be aware that the result is “practically
For example, the Maine Supreme Judicial Court has affirmed a conviction for “act[ing] recklessly when [the defendant] shot a powerful handgun into the woods in a residential area and in the direction of his next-door neighbor‘s home, knowing where it was located.” State v. Kline, 66 A.3d 581, 584 (Me.2013) (citing
Maine‘s definition of recklessness includes a volitional component. In this, it is like other states. See Fernandez-Ruiz, 466 F.3d at 1141 (Wardlaw, J., dissenting) (collecting cases). Notwithstanding Leocal, some judges found that even
3. Categorical Comparison
We conclude that reckless assault in Maine is “use of physical force” within the meaning of a “misdemeanor crime of domestic violence.” As noted above,
Domestic abusers may be drunk or otherwise incapacitated when they commit their crimes, and they may plea bargain down from a felony to a misdemeanor or from a statute that requires a mens rea
of intentionality to one that can be satisfied by recklessness. But this does not alter the nature of domestic violence as a crime involving the use of force against someone in a domestic relationship....
Fernandez-Ruiz, 466 F.3d at 1139 (Wardlaw, J., dissenting).
Defendants’ position assumes that a reckless act cannot be an act of domestic violence because it lacks volition. But that is not true. For example, suppose Maine convicts a husband for throwing a knife toward his wife, intending to instill fear rather than to cause physical injury, but actually striking her. The mens rea of the conviction would likely be recklessness: in light of the circumstances known to the husband, he consciously disregarded the risk of harm. Such a reckless assault can “subject one intimate partner to the other‘s control,” Castleman, 134 S.Ct. at 1411, and is the type of conduct included in
The defendants focus their analysis on assaults involving reckless causation of offensive physical contact, rather than bodily injury. We do not see why that distinction is material to the analysis here. The issue is whether
As a practical matter, it is hard to identify a case of reckless assault in the domestic context that Maine would prosecute but that Congress did not intend to serve as a
C. Our Recent Decision in Carter Does Not Help the Defendants
In United States v. Carter, 752 F.3d 8 (1st Cir.2014), we encountered similar facts to this case. We remanded for the district court to determine whether the defendant had indeed been convicted of a reckless assault. The opinion noted that Castleman “casts doubt” upon Booker, but it explicitly did “not decide” the question before this court. Id. at 18 & n. 11. Now, squarely presented with the issue and having reviewed Castleman, we resolve the question left open by Carter.
III.
The defendants make three constitutional arguments, none of which are successful.
First, the defendants renew their prior argument that
Second, the defendants offer a “gloss” on their earlier argument. They suggest that Castleman held that the link between non-violent misdemeanors and domestic violence involving firearms is extremely tenuous, and they argue that such a tenuous link cannot support the law‘s constitutionality. To the contrary, Castleman explained that the link between non-violent misdemeanors and domestic violence involving firearms is “sobering,” and hardly tenuous. 134 S.Ct. at 1409.
The defendants also raise an argument outside the scope of the Supreme Court‘s remand. They claim that
We have discretion to reexamine issues beyond the scope of the Supreme Court‘s specific remand order when “necessary to avoid extreme injustice.” United States v. Burnette, 423 F.3d 22, 25 n. 6 (1st Cir.2005) (quoting United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005)) (internal quotation mark omitted). But “[t]here is no injustice in refusing to reexamine a carefully considered decision based on the same arguments that we have already rejected.” Id. at 25 n. 6. The Supreme Court has already rejected arguments very similar to the defendants’ in
The defendants argue that Hayes was implicitly overruled by a recent Supreme Court decision, Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Hayes held that the determination that an earlier conviction involved a domestic relationship is an element of
We reject this argument. Whether the predicate conviction involved a domestic relationship is not a fact about the predicate conviction discerned through application of the modified categorical approach, in violation of Descamps. It is an element proved anew in the
IV.
The question before us is a narrow one. We are asked to decide whether a conviction for reckless assault against a person in a domestic relationship in Maine constitutes a federal “misdemeanor crime of domestic violence.” Congress in passing the Lautenberg Amendment recognized that guns and domestic violence are a lethal combination, and singled out firearm possession by those convicted of domestic violence offenses from firearm possession in other contexts. Castleman recognizes as much.
For the reasons stated above, we affirm the judgments of guilt.
So ordered.
TORRUELLA, Circuit Judge, Dissenting.
The majority fails to adequately justify its departure from the Supreme Court‘s direction and the analogous decisions of our sister circuits. Indeed, the Supreme Court‘s message is clear. In United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), the Court noted that we are the only outlying circuit on this question: our prior precedent is inconsistent with every other circuit court to consider the issue. See id. at 1414 n. 8 (contrasting our past position with that of the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals, which have “uniformly held that recklessness is not sufficient” to “constitute a ‘use’ of force“). The Court then remanded the instant cases for reconsideration in light of Castleman, see Armstrong v. United States, — U.S. —, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), implicitly suggesting that we bring our holdings in line with the other federal circuit courts of appeals. We are obligated to heed the Supreme Court‘s direction. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991) (“[F]ederal appellate courts are bound by the Supreme Court‘s considered dicta almost as firmly as by the Court‘s outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.“). Not only are the Supreme Court‘s instructions mandatory, but the legal reasoning and analysis in the cases cited by the Court are also correct.
On remand, this case requires us to answer, at the very least, one question of statutory interpretation: whether a Maine
Confronting this question, we are not acting upon an empty stage; rather, we must start with the backdrop painted by the Supreme Court in Castleman, which is the basis for the instant remand. Indeed, the Castleman Court questioned whether the “merely reckless causation” of even bodily injury—much less offensive physical contact—could constitute the “use” of force, noting that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” because the “use” of force requires a greater degree of intentionality. Castleman, 134 S.Ct. at 1414 & n. 8.
Although the majority opinion correctly observes that those circuit court cases involved different statutes, the operative language is nearly identical and the majority fails to persuasively explain why the result should be different here. All of the analogous cases involved the “use” of “force,” and most interpreted
I express no opinion here on whether the “use” of physical force is satisfied by either the reckless causation of bodily injury or the intentional or knowing causation of offensive physical contact. Rather, I confine my inquiry to one subsumed offense under the Maine assault statutes: the reckless causation of offensive physical
The Supreme Court has stated that, under the Lautenberg Amendment, Congress classified as a “misdemeanor crime of domestic violence” “the type of conduct that supports a common-law battery conviction.” Castleman, 134 S.Ct. at 1411. The Supreme Court has further explained that “the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another.” Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis added); see also United States v. Bayes, 210 F.3d 64, 69 (1st Cir.2000) (“[T]he common law provided that
an assault committed by way of a battery did not require an intent to cause or to threaten an injury as long as the defendant touched another in a deliberately offensive manner without a valid reason to do so.“) (emphasis added); State v. Rembert, 658 A.2d 656, 658 (Me.1995) (stating that “[u]npermitted and intentional contacts ... [are] actionable as an offensive contact“) (emphasis added); cf. Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(c)(2) n. 32 (2d ed.) (“[W]ith the tort of battery an intention to injure or touch offensively is needed“); Black‘s Law Dictionary 182 (10th ed.2014) (defining tortious battery as a “nonconsensual, intentional, and offensive touching of another without lawful justification“) (emphasis added). To trigger a violation of the Lautenberg Amendment, therefore, the relevant precedent counsels that the offensive touch must be caused intentionally and not merely recklessly. By contrast, the Maine statutes at issue here permit conviction for recklessly causing an offensive touch.10 Therefore, a conviction under either of the Maine assault statutes implicated here does not categorically establish a violation
After giving careful consideration to the issues involved, engaging in the necessary statutory interpretation and legal analysis, and applying the relevant precedent, I heed the Supreme Court‘s direction and follow the lead of our sister circuits in disagreeing with the majority‘s conclusion. Therefore, I respectfully dissent.
I. Legal Background
A. The Statutory Framework
1. The Lautenberg Amendment
The defendants here were charged with violating the Lautenberg Amendment to
the Gun Control Act of 1968, now codified at
(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 victim[.]
Nothing in Castleman suggests that the phrase “type of conduct” refers only to the actus reus for battery and not also the accompanying mens rea. Indeed, the contrary conclusion makes far more sense. If Congress meant to incorporate the common-law crime of battery, it most likely meant to incorporate both the actus reus and its accompanying mens rea. See, e.g., United States v. Zhen Zhou Wu, 711 F.3d 1, 18 (1st Cir.2013) (” ‘In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.’ ” (quoting United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980))); United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006) (stating that “most crimes ... require[] both mens rea and actus reus“); cf. United States v. Freed, 401 U.S. 601, 607–08, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (explaining that when “Congress borrows terms of art” from the common law, “it presumably knows and adopts the cluster of ideas that were attached to each borrowed word” (internal quotation marks and citation omitted)).
The defendants argue that the relevant Maine assault statutes do not “ha[ve], as an element, the use or attempted use of physical force.” See
Turning to the simple assault provision in the Maine Criminal Code, a person is guilty of “assault” if “[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” See
| The six variants of the Maine simple assault statute: | |||
|---|---|---|---|
| Maine simple assault statute, | Actus Reus | ||
| ...causes bodily injury. | ...causes offensive physical contact. | ||
| Mens Rea | Intentionally | 1. Intentionally causes bodily injury. | 4. Intentionally causes offensive physical contact. |
| Knowingly | 2. Knowingly causes bodily injury. | 5. Knowingly causes offensive physical contact. | |
| Recklessly | 3. Recklessly causes bodily injury. | 6. Recklessly causes offensive physical contact. | |
In Maine state court, Armstrong was convicted of Maine domestic-violence assault under section 207-A, and Voisine was convicted of Maine simple assault under section 207.12 These prior convictions served as the predicate offenses for the defendants’
B. The Categorical and Modified Categorical Approaches
Given the foregoing statutory framework, we must analyze whether the elements of the Maine assault statute necessarily fulfill the requirements of the Lautenberg Amendment. In cases such as this—where a court must decide whether a prior conviction for an earlier offense (like assault) satisfies one of the elements of the offense in a subsequent prosecution (here, for example, whether the earlier offense “has, as an element, the use ... of physical force,”
1. The Categorical Approach
In Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court described the categorical approach, under which courts “look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” See also United States v. Dávila-Félix, 667 F.3d 47, 56 (1st Cir.2011) (same). If the “statutory definition” of the prior offense necessarily meets the requirements of the subsequent offense at issue, then the court can determine that a conviction for the prior offense categorically constitutes a valid predicate offense for purposes of the later prosecution. See Castleman, 134 S.Ct. at 1414.
2. The Modified Categorical Approach
Some statutes, like the Maine assault statutes at issue here, are “divisible“: they “set[] out one or more elements of the offense in the alternative.” See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). For these statutes, some permutations or variants of the subsumed offenses may categorically meet the requirements of the subsequent offense, whereas others may not. Accordingly, for these divisible statutes, courts may apply the “modified categorical approach” to determine which variant or subsumed offense formed the basis for the prior conviction, and thus whether that prior conviction can serve as a valid predicate offense for the subsequent prosecution. See Castleman, 134 S.Ct. at 1414. Under this approach, a court may “consult[] the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms” in order to “determine which statutory phrase was the basis for the conviction” under such a divisible statute. Johnson, 559 U.S. at 144, 130 S.Ct. 1265. These documents are often called “Shepard documents,” after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion). See, e.g., Carter, 752 F.3d at 19-20 & 19 n. 12.
3. Application
Under established precedent not called into doubt by Castleman and not challenged here, certain subsumed offenses under the Maine assault statutes (such as the intentional or knowing causation of bodily injury) are unequivocally valid predicate
Rather, we must apply the categorical approach to determine whether the statutory definitions of the Maine assault provisions necessarily include the “use or attempted use of physical force.” See
C. The Supreme Court‘s Decisions in Leocal and Johnson
The Supreme Court‘s opinions in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), provided foundational reasoning for subsequent cases relevant to this appeal. In both of these cases, the Supreme Court engaged in statutory interpretation to determine whether the offenses underlying prior state convictions had, as an element, the “use” of physical force as required for purposes of a subsequent federal proceeding.
1. Leocal
In Leocal, the Supreme Court examined a similar question to that facing us today, regarding parallel language in the statutory definition of a “crime of violence” under
Additionally, the Court considered the fact that it was “ultimately ... determining the meaning of the term ‘crime of violence.’ ” Id. It reasoned that “[t]he ordinary meaning of this term, combined with § 16‘s emphasis on the use of physical force against another person ... suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.” Id. Therefore, the Court concluded that “[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Id. Importantly for the instant case, the Leocal Court held only that negligent and accidental conduct did not constitute the “use” of force and thus a crime of violence under
2. Johnson
In Johnson, the Supreme Court considered a related question: “whether the Florida felony offense of battery by [a]ctually and intentionally touch[ing]’ another person, Fla. Stat. § 784.03(1)(a), (2) (2003), ‘has as an element the use ... of physical force against the person of another,’
In determining the definition of “physical force” under the Armed Career Criminal Act (“ACCA“), the Court sought to give the phrase “its ordinary meaning” while keeping in mind the context of its inquiry: defining the statutory category of violent felonies. Id. at 138-40, 130 S.Ct. 1265. In that context, the Court thought “it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. The Johnson Court explicitly limited its holding to the ACCA, asserting that its decision would not extend to the
D. Pre-Castleman First Circuit Precedent: Nason, Booker, Armstrong I, and Voisine I
Prior to the Supreme Court‘s decision in Castleman, the defendants’ arguments were squarely foreclosed by First Circuit precedent; it is this precedent that the Supreme Court has instructed us to reconsider.
In United States v. Nason, 269 F.3d 10 (1st Cir. 2001), which also considered the interplay between the Maine simple assault statute and the Lautenberg Amendment, we held that the actus reus of “offensive physical contact” necessarily involved the “use or attempted use of physical force,” id. at 11-12, 21. Synthesizing the definitions of “physical force” from Black‘s Law Dictionary and other dictionaries, we determined that “physical force may be characterized as power, violence, or pressure directed against another person‘s body.” id. at 16. We thus held that
Whereas Nason focused on the actus reus variants of the Maine assault statute for purposes of the Lautenberg Amendment, we later focused on the mens rea variants in United States v. Booker, 644 F.3d 12 (1st Cir. 2011). In Booker, we rejected the argument that only an intentional offense could constitute a misdemeanor crime of domestic violence under
On the initial appeal in this case, United States v. Armstrong, 706 F.3d 1, 5 (1st Cir. 2013) (”Armstrong I“), vacated, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), we considered Armstrong‘s arguments that the Lautenberg Amendment‘s prohibition on gun ownership does not ap
E. Castleman and Its Aftermath
1. The Supreme Court‘s Castleman Opinion
Approximately one year later, while the petitions for writs of certiorari were pending in Armstrong I and Voisine I, the Supreme Court issued its opinion in Castleman, 134 S.Ct. 1405. The defendant in Castleman had pleaded guilty to a Tennessee offense for “intentionally or knowingly caus[ing] bodily injury to” the mother of his child. Id. at 1408-09. After federal authorities subsequently learned that he was selling firearms on the black market, Castleman was indicted on two counts of violating the Lautenberg Amendment. Id. at 1409. He argued that the Tennessee statute did not have the use, or attempted use, of physical force as an element of the offense. Id. (citing
The Court explained that “physical force” for purposes of
The Castleman Court further explained that there are two main categories of assault or battery laws generally used to prosecute domestic abusers: “those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter.” Id. at 1413. Interpreting “physical force” to exclude a mere “offensive touching” would have rendered the Lautenberg Amendment “ineffectual in at least 10 States—home to nearly thirty percent of the Nation‘s population at the time of its enactment.” Id. (footnote omitted). Therefore, the Court held that the “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction“—including an offensive touching. Id.
Expressing skepticism regarding such a categorical conclusion, the Court stated that “[i]t does not appear that every type of assault defined by [the Tennessee statute] necessarily involves ‘the use or attempted use of physical force, or the threatened use of a deadly weapon.‘” Id. at 1413-14 (quoting
On the heels of its Castleman opinion, the Supreme Court vacated our prior decisions in Voisine I and Armstrong I, and it remanded those two cases for reconsideration in light of its decision in Castleman. See Armstrong, 134 S.Ct. 1759 (“Judgment vacated, and case remanded to the United States Court of Appeals for the First Circuit for further consideration in light of United States v. Castleman, [134 S.Ct. 1405] (2014).“). There is little disagreement that this remand order calls for us to consider the impact of Castleman‘s Footnote Eight on our prior precedent, particularly Booker and Nason. In that footnote, the Supreme Court contrasted our Booker holding with the decisions of ten of our sister circuits, noting that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient” to “constitute a ‘use’ of force.” Id. at 1414 n. 8.
2. The First Circuit‘s Carter Opinion
In the wake of Castleman and the Supreme Court‘s remand of the instant cases, we issued an opinion in United States v. Carter, 752 F.3d 8 (1st Cir. 2014). Among other arguments, the defendant in that case, Wayne Carter, raised similar issues to those examined in Armstrong I. Id. at 9-10. Carter had been convicted in 1997 of a misdemeanor assault in Maine, after his live-in girlfriend at the time, Annie Eagan, told police officers that Carter spit in her face and shoved her right shoulder. Id. at 10. Eagan reported that she was not hurt, that she did not want Carter arrested or charged with an offense, and that she only wanted him removed from the house. Id. at 10-11. Nonetheless, the Maine state prosecutor charged Carter under Maine‘s general-purpose assault statute, to which Carter pleaded guilty and was sentenced to time served: thirty days in jail. Id. at 11.
Approximately thirteen years later, in 2010, Carter obtained a loan by pawning a rifle that he had inherited from his dead father. Id. at 10. A records check and
On appeal, we noted that although this argument was previously foreclosed by our holding in Booker, “the Supreme Court‘s recent decision in Castleman casts doubt upon this holding.” Id. at 18 (citing Castleman, 134 S.Ct. at 1414 & n. 8). In support of that assertion, we cited the Supreme Court‘s statements that “the merely reckless causation of bodily injury under [the Tennessee assault statute] may not be a ‘use’ of force,” id. (alteration in original) (quoting Castleman, 134 S.Ct. at 1414), and that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient’ to ‘constitute a “use” of force,‘” id. (quoting Castleman, 134 S.Ct. at 1414 n. 8). Although Castleman had not directly overruled our prior decision in Booker, we noted that these statements from the Supreme Court provided a “‘sound reason’ for thinking that the Booker panel might well ‘change its collective mind’ in light of Castleman.” Id. at 18 n. 11 (quoting United States v. Rodriguez-Pacheco, 475 F.3d 434, 442 (1st Cir. 2007)).
Despite the Supreme Court‘s statements in Castleman calling into question our prior precedent on this question, it was unnecessary in Carter to answer the recklessness issue, because Carter potentially could have been resolved via the modified categorical approach: the underlying Shepard documents might have “ultimately show[n] that Carter‘s conviction was under one of the other two mens-rea prongs of the statute—‘intentionally’ or ‘knowingly.‘” Id. at 18. We thus observed that under Castleman, “the validity of Carter‘s
3. District Courts’ Application of Castleman and Carter
To date, three different district court judges in the First Circuit have applied the reasoning of Castleman‘s Footnote Eight regarding these issues; all three opinions concluded that a recklessly committed Maine assault does not necessarily involve the “use” of physical force and thus is not categorically a misdemeanor crime of domestic violence. United States v. Sales, No. 2:13-CR-137-NT, 2014 WL 3405658 (D.Me. July 11, 2014); United States v. Carter, No. 2:10-cr-00155-GZS, 2014 WL 3345045 (D.Me. July 8, 2014); United States v. Hines, No. 1:12-cr-00204-JAW, 2014 WL 1875164 (D.Me. May 9, 2014). Each of these three cases is examined below, in the order that they were decided.
a. Hines
The first district court case to apply the decisions in Castleman and Carter to these issues was Hines, 2014 WL 1875164. The defendant in Hines had pleaded guilty in Maine state court to violating the domestic violence assault statute; the Shepard documents revealed no further details regarding the conduct underlying this offense. Id. at *2. Before the district court, the defendant argued, among other things, that a mens rea of recklessness could not satisfy the “use of force” requirement under the Lautenberg Amendment. Id. at *4. The district court noted that pre-Castleman First Circuit precedent had previously foreclosed this argument, and “[t]he question is how Castleman affects the resolution of the issues [the defendant] has raised.” Id. at *7.
Examining Castleman‘s Footnote Eight, the court observed that “[t]his footnote, which cited ten circuit courts as concluding that reckless conduct did not constitute ‘use of physical force,’ strongly hinted that the First Circuit‘s Booker decision was an outlier.” Id. at *8. The district court then considered the Supreme Court‘s vacatur of Armstrong I in light of Castleman. Id. The court explained that “[r]eading Supreme Court tea leaves is chancy, but the First Circuit decision in Armstrong I was consistent with Castleman except for the Circuit Court‘s brief recklessness analysis.” Id. Thus, the court found that “[i]t is a short logical step to conclude that the reason the Supreme Court vacated the First Circuit decision in Armstrong I was to pull the First Circuit in line with the other ten circuit courts in the recklessness analysis.” Id. Accordingly, on the basis of Castleman, the vacatur of Armstrong I, and Carter, the district court concluded that it is “questionable” whether a Maine conviction for domestic assault—“without more“—qualifies as a valid predicate conviction for the Lautenberg Amendment. Id. at *9.
b. Carter
Following our remand instructions in Carter, the district court permitted the parties to further develop the record with Shepard documents to determine which subsumed variant of the Maine assault statute formed the basis of Carter‘s prior state misdemeanor conviction. Carter, 2014 WL 3345045, at *6. The only additional document available was a transcript of Carter‘s plea colloquy in Maine state court, in which Carter‘s attorney stated that “discovery shows that this was no more than a push on the right shoulder, that it
The district court cited Hines, including the statement that “[i]t is a short logical step to conclude that the reason the Supreme Court vacated the First Circuit decision in [Armstrong I] was to pull the First Circuit in line with the other ten circuit courts in the recklessness analysis.” Id. at *5 (quoting Hines, 2014 WL 1875164, at *8). The court further observed that “while the statement in Castleman was via dictum in a footnote, ‘it is much more than an offhand comment.... [C]arefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative.‘” Id. at *6 (quoting Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir. 2004)) (internal quotation marks omitted). Stating that it “cannot ignore the guidance of the Supreme Court and the First Circuit in Castleman, Armstrong and Carter,” the district court concluded that “Carter‘s conviction may only stand if it was premised on more than accidental, negligent or reckless conduct.” Id. Faced with the absence of any Shepard documents permitting such a finding, the district court granted Carter‘s motion to dismiss the indictment, holding that his 1997 conviction could not serve as a predicate misdemeanor for the Lautenberg Amendment. Id. at *7.
c. Sales
Sales, 2014 WL 3405658, is the third and, to date, final district court case to apply Castleman and Carter. The defendant in that case, Kenneth Sales, had pleaded guilty in Vermont state court to one count of “assault-simple-mutual affray” because he “engaged in a fight or scuffle entered into by mutual consent.” Id. at *1 (citing
The district court reviewed the governing precedent, including Castleman, Carter, and the previous two district court decisions described above, Hines and Carter. Id. at *2-3. Observing that the Castleman court emphasized Leocal‘s holding that “use” requires active employment, the district court further highlighted that “[t]he Supreme Court also pointed out that Booker is out of step with other circuit courts that have held that recklessness is not sufficient to constitute a ‘use’ of force.” Id. at *3 (citing Castleman, 134 S.Ct. at 1414 n. 8). Accordingly, the district court opined that “the Supreme Court‘s remand of Armstrong ‘in light of Castleman’ is fairly construed as a directive to the First Circuit to reconsider whether an assault committed recklessly is sufficient to meet the federal definition of a misdemeanor
II. Discussion
On remand, the relevant inquiry is whether the “reckless” causation of “offensive physical contact” under Maine law necessarily constitutes the “use or attempted use of physical force” for purposes of the Lautenberg Amendment. Compare
A. The Meaning of the “Reckless” Causation of “Offensive Physical Contact” Under Maine Law
1. The Meaning of “Reckless”
Under the applicable definition in the Maine Criminal Code, “[a] person acts recklessly with respect to a result of the person‘s conduct when the person consciously disregards a risk that the person‘s conduct will cause such a result.”
The majority opinion describes this definition of “recklessness” as involving “a substantial amount of deliberateness and intent.” Ante, at 183. To support this assertion, the majority follows the government‘s brief in emphasizing that the definition requires that a person “consciously” disregard the risk involved, and that this disregard involves a “gross deviation” from the standard of reasonable and prudent conduct. Id. at 183-84. Relying on this language, the government argues that “recklessness lies rather close to ‘knowingly’ on the ‘volitional scale,‘” and that recklessness “is arguably part and parcel of ‘willfully.‘” Continuing, the government asserts that “[r]ecklessly is more akin to deliberately or knowingly.” I disagree.
Contrary to the claim that the Maine definition of recklessness involves “a substantial amount of deliberateness and intent,” the Maine definition is in fact a textbook definition of recklessness, falling squarely within the standard definitions of recklessness in various jurisdictions and as defined by multiple authorities. Indeed, the Maine definition is materially indistinguishable from the definition of recklessness in the Model Penal Code. Cf.
As revealed in the chart below, the Maine definition of recklessness is also consistent with the equivalent definitions in the Model Penal Code, Black‘s Law Dictionary, and the majority of First Circuit jurisdictions.
| Source, Authority, or Jurisdiction | Definition |
|---|---|
| Model Penal Code § 2.02(2)(c) (emphases added) | “Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor‘s situation.” |
| Black‘s Law Dictionary 1462 (10th ed.2014) (emphases added) | “reckless, adj. ... Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. • Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do. See recklessness. Cf. careless; wanton . . .” |
| Black‘s Law Dictionary 1462 (10th ed.2014) (emphasis added) | “recklessness, n. ... 1. Conduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk. • Recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing. 2. The state of mind in which a person does not care about the consequences of his or her actions. Also termed heedlessness. Cf. wantonness.” |
| Maine | “A person acts recklessly with respect to a result of the person‘s conduct when the person consciously disregards a risk that the person‘s conduct will cause such a result. . . . [T]he disregard of the risk, when viewed in light of the nature and purpose of the person‘s conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” |
| Massachusetts | “Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another.” Sandler v. Commonwealth, 419 Mass. 334, 644 N.E.2d 641, 643 (Mass.1995). “[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.” Id., 644 N.E.2d at 644. “To prove reckless battery, the Commonwealth must establish (1) that the defendant‘s conduct involve[d] a high degree of likelihood that substantial harm will result to another, or that it constitute[d] ... disregard of probable harmful consequences to another and (2) that, as a result of that conduct, the victim suffered some physical injury.” United States v. Holloway, 630 F.3d 252, 261 (1st Cir.2011) (quoting Commonwealth v. Welch, 16 Mass. App.Ct. 271, 450 N.E.2d 1100, 1102-03 (Mass.App.Ct.1983)). “To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm.” |
| Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902, 910 (Mass.1944) (internal quotation marks omitted). | |
| New Hampshire | “‘Recklessly. A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of having voluntarily engaged in intoxication or hypnosis also acts recklessly with respect thereto.” |
| Puerto Rico | Old: “[W]hen the actor has foreseen or is conscious that there exists a high probability that his conduct will produce the criminal act.” New: “A person acts recklessly when he is conscious that his conduct generates a substantial and unjustified risk that the legally prohibited result or circumstance will be produced.” |
| Rhode Island | “[T]he use of the word ‘reckless’ or ‘recklessly’ in penal statutes connotes something more than the negligence necessary to support a civil action for damages, and that the two words impart a disregard by the accused for the consequences of his act and an indifference to the safety of life and limb . . . [T]he distinguishing factor, which properly classifies the operation of a motor vehicle as reckless, is that the evidence shows that a driver has embarked upon a course of conduct which demonstrates a heedless indifference to the consequences of his action.” State v. Lunt, 106 R.I. 379, 260 A.2d 149, 151 (R.I.1969). |
The definitions of “recklessness” in the preceding chart demonstrate that the Maine definition is a perfectly ordinary, textbook definition of the term. There is nothing about the Maine statute that sets it above and beyond the standard definitions provided in the Model Penal Code, Black‘s Law Dictionary, and the other jurisdictions in the First Circuit. Nor does it seem that the Model Penal Code and the First Circuit jurisdictions are unique in their definitions of recklessness. See, e.g.,
Applying that definition, I disagree with the government‘s assertion that “[r]ecklessly is more akin to deliberately or knowingly” than negligently. The majority opinion echoes this claim, arguing that “Maine‘s definitions of knowingly as contrasted with recklessly differ primarily in their description of the degree of the person‘s awareness of the likelihood that the result will occur.” Ante, at 184. The Supreme Court has held that negligent conduct cannot constitute the “use” of force. See Castleman, 134 S.Ct. at 1414 n. 8; Leocal, 543 U.S. at 9, 125 S.Ct. 377. On a volitional spectrum from “negligently” (clearly insufficient to constitute the “use” of force) to “intentionally” (clearly sufficient), the government and the majority seeks to place “recklessly” closer to the latter end. Yet the differences between the definitions of “recklessly” and “criminal negligence” are just as small as (if not smaller than) the differences between “knowingly” and “recklessly.” See Fernandez-Ruiz, 466 F.3d at 1130 (“To the extent recklessness differs from criminal negligence, ‘[t]he difference between them is that criminal negligence requires only a failure to perceive a risk, as compared to the recklessness requirement of an awareness and conscious disregard of the risk.‘” (quoting In re William G., 192 Ariz. 208, 963 P.2d 287, 292 n. 1 (Ariz.Ct.App.1997))); see also 1 Charles E. Torcia, Wharton‘s Criminal Law § 27 (15th ed.1993). Indeed, just as Maine‘s definitions of knowingly and recklessly “differ primarily in their description of the degree of the person‘s awareness of the likelihood that the result will occur,” ante, at 184 (emphasis added), so too do Maine‘s definitions of recklessness and negligence “differ primarily in their description of the degree of the person‘s awareness of the likelihood that the result will occur,” id. Compare
2. The Meaning of “Offensive Physical Contact”
In this context, the actus reus of “offensive physical contact” has two constituent elements: first, there must be “physical contact,” and second, the physical contact must also be “offensive.” Under Maine law, the physical contact required is “not limited to direct touchings, but also c[an]
Determining whether the physical contact is “offensive” is an objective test: courts ask whether a reasonable person would find the physical contact to be offensive, under the particular circumstances involved. See United States v. Pettengill, 682 F.Supp.2d 49, 56 (D.Me. 2010) (stating that “‘offensive physical contact’ means ‘physical contact which a reasonable person would find offensive under the circumstances‘” (quoting Donald G. Alexander, Maine Jury Instruction Manual § 6-59 (4th ed.2003)); see also State v. Pozzuoli, 693 A.2d 745, 747 (Me. 1997) (“[T]he question is whether a reasonable person would find the contact to be offensive....“); Restatement (Second) of Torts § 19 (“A bodily contact is offensive if it offends a reasonable sense of personal dignity.“). Offensive physical contact, therefore, involves “something less than bodily injury ... but requires more than a mere touching of another.” Nason, 269 F.3d at 19 (alteration in original) (quoting Pozzuoli, 693 A.2d at 747). In examining the Maine assault statute, we have previously observed that “[t]wo factors distinguish mere touchings from offensive physical contacts: the mens rea requirement, and the application of a ‘reasonable person’ standard to determine whether a contact is offensive.” Nason, 269 F.3d at 19 (citations omitted). Accordingly, to recklessly cause an offensive physical contact in Maine, a person must consciously disregard a risk that his or her conduct will cause physical contact—something more than a mere touching—that a reasonable person would find to be offensive under the circumstances. See
B. The Meaning of “Use ... of Physical Force” Under Federal Law
1. The “Use” of “Force” and Common-Law Battery
The following discussion demonstrates that under the Lautenberg Amendment, the use-of-force requirement can be satisfied by an actus reus of an offensive touching, but such an offensive touch must be committed with a mens rea of intent rather than mere recklessness. In Castleman, the Supreme Court held that “force,” for purposes of the Lautenberg Amendment, incorporates the common-law meaning of “force.” Castleman, 134 S.Ct. at 1410-11. The Court further stated that “it makes sense for Congress to have classified as a ‘misdemeanor crime of domestic violence’ the type of conduct that supports a common-law battery conviction.” Id. at 1411. On that basis, the Court held that “the requirement of ‘physical force’ is satisfied, for purposes of
I agree with the government‘s contention that “it makes sense for Congress to have classified as a ‘misdemeanor crime of domestic violence’ not only ‘the type of conduct that supports a common-law battery conviction,‘” id. at 1411, but also the culpable mental states that support a bat
In Johnson, the Supreme Court explained that “the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another.” Johnson, 559 U.S. at 139, 130 S.Ct. 1265 (emphasis added). According to Supreme Court precedent, therefore, although the Lautenberg Amendment‘s “force” requirement can be satisfied by an actus reus of an offensive touching, such offensive contact must involve a mens rea of intent rather than mere recklessness. See id.; see also Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (defining the word “use” for purposes of the pre-1998 text of
The sources cited by the government do not demonstrate otherwise. These sources suggest, at best, that a common-law battery by “bodily injury” or “infliction of harm” can be committed recklessly; they do not establish that a common-law battery by “offensive physical contact” can be committed recklessly. See, e.g.,
The weakness of the government‘s argument is revealed by its selective citation and selective quoting. For example, the government quotes a criminal law treatise for the proposition that “a substantial majority of the battery-type statutes” in modern criminal codes “expressly state that the crime may be committed by recklessness,” but conveniently omits the immediately following clause at the end of that sentence: “—that is, where there is subjective awareness of the high risk of physical injury.” LaFave, supra, § 16.2(c)(2) (emphasis added). The unabridged sentence says nothing about whether a battery by offensive touching can be committed by recklessness. Indeed, in the same section, the cited treatise states that the modern approach “limit[s] battery to instances of physical injury.”
Contrary to the government‘s arguments, our decision in United States v. Bayes, 210 F.3d 64 (1st Cir. 2000), supports the conclusion that battery by offensive touching requires intent and not mere recklessness with respect to the offensiveness of the contact. In Bayes, we evaluated the defendant‘s challenge to the sufficiency of the evidence to support his conviction for simple assault under
Bayes argued that simple assault required “a specific kind of intent that the government failed to prove.” Id. Namely, Bayes contended that “the government did not prove that he intended to injure [the flight attendant] or to threaten her with harm when he touched her on the but
The preceding language from Bayes reveals that the mens rea required for a
Therefore, the following conclusion must be drawn: under the Lautenberg Amendment, the “force” requirement can be satisfied by an actus reus of an offensive touching, but such an offensive touch must involve a mens rea of intent rather than mere recklessness. That is, the defendant must intend to touch and intend that the touch be offensive, rather than merely disregard the risk that a touch will occur and be considered offensive. By contrast, the Maine statutes at issue permit conviction when the defendant merely disregards a risk that his or her conduct will cause physical contact that a reasonable person would find to be offensive. Accordingly, applying a categorical approach and the Supreme Court‘s statements in Castleman and Johnson, a conviction under either of the Maine assault statutes encompasses conduct beyond the common-law definition of battery, and thus does not necessarily establish a misdemeanor crime of domestic violence under the Lautenberg Amendment. This conclusion mandates reversal here and is further supported by Footnote Eight of Castleman and the circuit court cases cited therein, as explained below.
2. Castleman‘s Footnote Eight
In Castleman, the Supreme Court opined that the “merely reckless causation of bodily injury under the [Tennessee assault statute] may not be a ‘use’ of force.” Castleman, 134 S.Ct. at 1414. The Court explained this statement in Footnote Eight, noting that Leocal held that “““use” requires active employment.‘” Id. at 1414 n. 8 (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377). The Court then stated that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” contrasting decisions from ten other circuit courts of appeals against our opinion in Booker, which the Supreme Court
a. Second Circuit
The Second Circuit considered the issue in Jobson v. Ashcroft, 326 F.3d 367, 369 (2d Cir. 2003), which examined whether second-degree manslaughter in New York constituted a crime of violence under
To satisfy
b. Third Circuit
The Third Circuit reached a similar result in Oyebanji v. Gonzales, 418 F.3d 260, 263 (3d Cir. 2005), which also involved immigration removal proceedings premised upon the definition of “crime of violence” under
Citing the Leocal Court‘s distinction between “violent” crime and merely “accidental” conduct, the Third Circuit explained that “[t]he quintessential violent crimes—murder, assault, battery, rape, etc.—involve the intentional use of actual or threatened force against another‘s person, and the term ‘accidental’ is most often used to describe events that did not ‘occur [ ] as a result of anyone‘s purposeful act.‘” Id. at 264 (second alteration in original) (citing Black‘s Law Dictionary 16 (8th ed.1999)). The Third Circuit reasoned that “accidental” conduct “is not enough to qualify as a crime of violence” under Leocal, and it decided that such “accidental” conduct “would seem to include reckless conduct.” Id. The panel further stated that the Third Circuit ought to follow the Supreme Court‘s “considered dicta” in Leocal, id. at 265 (quoting McCoy, 950 F.2d at 19), and that while the panel “appreciate[d]” the government‘s arguments, it “believe[d] that those arguments must be directed to the Supreme Court or Congress.” Id.
c. Fourth Circuit
The Fourth Circuit considered these issues in García v. Gonzales, 455 F.3d 465 (4th Cir. 2006). García also involved removal proceedings and whether a certain predicate offense qualified as an aggravated felony by virtue of being “a crime of violence” under
Turning to the definition in
d. Fifth Circuit
The Fifth Circuit considered the definition of “crime of violence” under
e. Sixth Circuit
In United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006), the Sixth Circuit followed the “‘considered dicta‘” of Leocal and the reasoning of the Third and Fourth Circuits to hold that “a crime requiring only recklessness does not qualify as a ‘crime of violence’ under
f. Seventh Circuit
Similarly, the Seventh Circuit followed its sister circuits in holding that “reckless crimes are not crimes of violence under Section 16(b).” Jiménez-González v. Mukasey, 548 F.3d 557, 560 (7th Cir. 2008). The Seventh Circuit found persuasive the Third Circuit‘s reasoning in Oyebanji that the use of physical force requires active employment and not merely negligent or accidental conduct. Id. (citing Oyebanji, 418 F.3d at 263). The Seventh Circuit further reasoned that “accidental and reckless crimes are not the type of ‘violent’ crimes Congress intended to distinguish as worthy of removal.” Id. To support its holding, the Seventh Circuit emphasized the “primary distinction” that crimes of violence involve intentional conduct whereas most crimes of recklessness in
g. Eighth Circuit
Likewise, the Eighth Circuit stated that the Leocal “Court‘s reasoning suggests that crimes requiring only reckless disregard for the risk of physical injury to another are not crimes of violence under
A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, by allowing a child to die of dehydration while in the person‘s care, by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, and, indeed, by driving drunk with ‘culpable negligence’ in a manner that causes the death of a passenger.
Id. (internal citations omitted). Therefore, the court held, “the ‘use of force,’ as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction,” meaning that the Minnesota second-degree manslaughter offense is not a crime of violence under
h. Ninth Circuit
In Fernández-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir. 2006) (en banc), the Ninth Circuit held that a prior Arizona assault conviction did not constitute a crime of violence under
“Even more clearly, reckless conduct as defined by Arizona law is not purposeful.” Id. As support for this statement, the Ninth Circuit cited the Arizona criminal statute defining recklessness. Id. Under that statute, “‘[r]ecklessly’ means ... that
i. Tenth Circuit
In United States v. Zúñiga-Soto, 527 F.3d 1110, 1113 (10th Cir. 2008), the Tenth Circuit considered whether the “crime of violence” enhancement provision under U.S.S.G. § 2L1.2 applied to the appellant‘s prior Texas state conviction for assaulting a public servant. Applying the commentary to this U.S.S.G. provision, the Tenth Circuit‘s “sole task” was to whether the appellant‘s “prior felony conviction qualifies as a crime of violence because the offense had as an element the use of physical force.” Id. at 1115. Under the appellant‘s offense of conviction, a person commits an assault if he or she “intentionally, knowingly, or recklessly causes bodily injury to another.”
j. Eleventh Circuit
Finally, applying similar reasoning, the Eleventh Circuit also relied on Leocal and the decisions of the other circuit courts to hold that “a conviction predicated on a mens rea of recklessness does not satisfy the ‘use of physical force’ requirement under [U.S.S.G.] § 2L1.2‘s definition of ‘crime of violence.‘” United States v. Palomino García, 606 F.3d 1317, 1336 (11th Cir. 2010). Citing “the near unanimity of the circuit courts on this issue,” the Eleventh Circuit concluded that Leocal “plainly suggests that crimes requiring only a reckless[] disregard for the risk of physical injury to others are not crimes of violence.” Id. at 1336 n. 16. The Eleventh Circuit further explained that “[b]ecause Arizona law defines recklessness as nothing more than the conscious disregard of a substantial and unjustifiable risk, this is more akin to negligence and cannot be said to require the intentional use of force.” Id. at 1336 (internal citation omitted). Therefore, the court held that an Arizona
C. Comparison of Analogous Statutory Language
As is evident from the discussion above, most of our sister circuits have held that the “use ... of physical force” requires the type of intentional conduct for which mere recklessness cannot suffice. Although these cases involved different provisions than the Lautenberg Amendment, the statutory texts involved are not materially different, and in many cases, are virtually identical. As referenced herein, analogous provisions to the definition of “misdemeanor crime of domestic violence” for purposes of the Lautenberg Amendment are compared in the following chart:
| Statute | Relevant Language |
|---|---|
| “misdemeanor crime of domestic violence,” Lautenberg Amendment, | “has, as an element, the use or attempted use of physical force” |
| “crime of violence,” | “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” |
| “crime of violence,” | “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” |
| “[c]rime of violence,” U.S.S.G. § 2L1.2 | “[an] offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another” U.S.S.G. § 2L1.2, cmt. 1(B)(iii). |
| “violent felony” under the ACCA, | “has as an element the use, attempted use, or threatened use of physical force against the person of another” |
It is readily apparent that the language involved in most of the preceding provisions is nearly identical, and for present purposes is materially indistinguishable.16
III. Conclusion
Despite the foregoing precedent from the Supreme Court and our sister circuits, the majority opinion nonetheless seeks to hew to our prior decision in Booker and to resolve these cases, yet again, exactly as we did in Armstrong I and Voisine I. With due respect, for the reasons explained above, I believe that the majority is wrong.
The Lautenberg Amendment is premised upon grave concerns and laudable purposes, as articulated both by the Supreme Court in Castleman and by the majority in this case. I share those concerns and strongly agree with those purposes. However, a general agreement with those goals need not dictate the result here. This case does not present a litmus test for judges, asking whether we oppose domestic violence and gun violence. Were our job so simple, it would be an easy matter to decide in favor of the government. But that is not our role. Our judicial obligations preclude us from such results-oriented decisionmaking.
Rather than deciding on the basis of personal beliefs and policy preferences, or seeking to ensure that the Lautenberg Amendment encompass the broadest possible swath of conduct within its ambit, this case requires us to engage in statutory interpretation. This legal task implicates the difference between Congress‘s broad policy goals versus the precise statutory language employed to achieve those ends. That is, does the language chosen by Congress—the “use or attempted use of physical force“—necessarily apply to all Maine misdemeanor assault convictions for recklessly causing offensive physical contact? Applying the relevant precedent to this question of statutory interpretation coun
For the reasons stated herein, I would reverse the defendants’ convictions. Indeed, I believe that the Supreme Court has obligated us to do so. Therefore, I respectfully dissent.
v.
Michael F. GOLDEN; John A. Kelly; Barry M. Monheit; Kenneth W. Chandler; John B. Furman; I. Marie Wadecki; Jeffrey D. Buchanan; Robert L. Scott; Mitchell A. Saltz; Colton R. Melby; Ann B. Makkiya; Leland A. Nichols; Thomas L. Taylor; Smith & Wesson Holding Corporation, Defendants, Appellees.
No. 14-1414.
United States Court of Appeals,
First Circuit.
Feb. 4, 2015.