United States v. Vinson

794 F.3d 418

UNITED STATES of America, Plaintiff–Appellant

v.Rodney Marshall VINSON, Defendant–Appellee.

No. 14–4078.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2015.

Decided: July 21, 2015.

ARGUED:Barbara Dickerson Kocher, Office of the United States Attorney, Raleigh, NC, for Appellant. Robert Earl Waters, Office of the Federal Public Defender, Raleigh, NC, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, NC, for Appellant. Thomas P. McNamara, Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Opinion

Vacated and remanded by published opinion. Chief Judge TRAXLER wrote the opinion in which Judge AGEE joined. Judge GREGORY wrote a separate dissenting opinion.

TRAXLER, Chief Judge:

Police officers dispatched to the residence of Rodney Marshall Vinson found a rifle and ammunition during a consensual search. After determining that Vinson had a prior North Carolina conviction amounting to a “misdemeanor crime of domestic violence,” 18 U.S.C. § 921(a)(33)(A), the government charged Vinson with possession of a firearm by a prohibited person, see 18 U.S.C. § 922(g)(9). The district court granted Vinson's motion to dismiss the indictment, concluding that Vinson was not a prohibited person because the state statute at issue did not, as a categorical matter, qualify as a misdemeanor crime of domestic violence. The government appeals, arguing that the analytical approach referred to as the “modified categorical approach” applies to this case and establishes that Vinson was convicted of a qualifying misdemeanor crime of domestic violence. We agree with the government, and we therefore vacate the district court's order dismissing the indictment and remand with instructions that the district court reinstate the indictment against Vinson.

I.

Section 922(g) prohibits the possession of firearms by various classes of persons, including those convicted of a “misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). Subject to certain exceptions not relevant here, a crime qualifies as a “misdemeanor crime of domestic violence” if it:

(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.

18 U.S.C. § 921(a)(33)(A).

The existence of the domestic relationship between the victim and defendant specified in the statute is an element of the § 922(g)(9) charge that must be proven beyond a reasonable doubt by the government, but the relationship need not be an element of the underlying state statute. See United States v. Hayes, 555 U.S. 415, 426, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). As is clear from the terms of the statute, the use or attempted use of physical force, or threatened use of a deadly weapon, must be an element of the underlying state offense. The “physical force” element of § 921(a)(33)(A) is satisfied “by the degree of force that supports a common-law battery conviction,” United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 1413, 188 L.Ed.2d 426 (2014), “namely, offensive touching,” id. at 1410.

Vinson was convicted under N.C. Gen.Stat. § 14–33, a statute that classifies simple and aggravated forms of misdemeanor assault, assault and battery, and affray. Subsection (a) provides that “[a]ny person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor.” N.C. Gen.Stat. § 14–33(a). Subsection (c) addresses aggravated forms of the crimes, providing that:

(c) ... [A]ny person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:

(1) Inflicts serious injury upon another person or uses a deadly weapon;

(2) Assaults a female, he being a male person at least 18 years of age;

(3) Assaults a child under the age of 12 years;

(4) Assaults an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties;

(5) Repealed ...; or

(6) Assaults a school employee or school volunteer when the employee or volunteer is discharging or attempting to discharge his or her duties as an employee or volunteer, or assaults a school employee or school volunteer as a result of the discharge or attempt to discharge that individual's duties as a school employee or school volunteer....

N.C. Gen.Stat. § 14–33(c). Because there is no statutory definition of assault, battery, or affray, the common-law rules governing these crimes apply to prosecutions under N.C. Gen.Stat. § 14–33. See State v. Roberts, 270 N.C. 655, 155 S.E.2d 303, 305 (1967). The record establishes that Vinson was convicted of violating subsection (c)(2) of the statute.

II.

To determine whether a prior conviction renders the defendant a prohibited person under § 922(g), we apply the familiar “categorical approach.” Castleman, 134 S.Ct. at 1413. Under the categorical approach, we look “ ‘only to the fact of conviction and the statutory definition of the prior offense’...., focus[ing] on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera–Umanzor, 728 F.3d 347, 350 (4th Cir.2013) (internal quotation marks omitted).

A modification to the categorical approach may be used in cases where the underlying state crime “consists of multiple, alternative elements creating several different crimes, some of which would match the generic federal offense and others that would not.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir.2014) (internal quotation marks omitted). When such “divisible” crimes are at issue, we may apply the “modified categorical approach,” which permits us “to examine a limited class of documents to determine which of a [crime's] alternative elements formed the basis of the defendant's prior conviction.” Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013).¹ “General divisibility, however, is not enough; a [state crime] is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the [crime] may be divided constitutes, by its elements, [a qualifying predicate offense].” Cabrera–Umanzor, 728 F.3d at 352 ; see Descamps, 133 S.Ct. at 2285.

The district court concluded that § 14–33(c)(2) was not divisible and that the modified categorical approach was therefore inapplicable. Applying the categorical approach, the district court concluded that a violation of 14–33(c)(2) did not amount to a misdemeanor crime of domestic violence because the use or threatened use of physical force is not an element of assault under North Carolina law. In reaching this conclusion, the district court applied this court's decision in United States v. White, 606 F.3d 144 (4th Cir.2010), and interpreted the “physical force” requirement of § 921(a)(33)(A)(ii) to mean “violent force,” see id. at 153 (“[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” (internal quotation marks omitted)).

After the district court granted Vinson's motion to dismiss, however, the Supreme Court issued its decision in Castleman and held, directly contrary to our holding in White, that violent force was not necessary to satisfy the “physical force” requirement of § 921(a)(33)(A)(ii). See Castleman, 134 S.Ct. at 1413. Instead, the Court held that the statute “incorporated the common-law meaning of ‘force’—namely, offensive touching,” id. at 1410, and that “the requirement of ‘physical force’ is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction,” id. at 1413.

III.

The sole issue on appeal is whether Vinson's conviction under N.C. Gen.Stat. § 14–33(c)(2) qualifies as a conviction for a misdemeanor crime of domestic violence (“MCDV”) as defined by 18 U.S.C. § 921(a)(33)(A). The government does not challenge the district court's determination that Vinson's conviction would not qualify as an MCDV under the categorical approach.² Instead, the government argues that, contrary to the district court's conclusion, § 14–33(c)(2) is divisible, such that the modified categorical approach may be applied. And because the charging document in this case shows that the conviction was predicated on a battery of Vinson's wife, the government contends that the modified categorical approach establishes that Vinson was convicted of an MCDV and that the district court therefore erred by dismissing the indictment against Vinson.

A.

Under N.C. Gen.Stat. § 14–33(c)(2), a defendant is “guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he ... [a]ssaults a female, he being a male person at least 18 years of age.” The district court understood § 14–33(c)(2) as establishing the crime of assault on a female, a crime that can be committed through an assault, assault and battery, or an affray. In the district court's view, assault, battery, and affray were alternate means of committing the crime, not alternate elements, such that § 14–33(c)(2) was not divisible. See Omargharib, 775 F.3d at 198 (explaining that alternate means of committing a single crime do make the crime divisible); see also Descamps, 133 S.Ct. at 2285 n. 2.

Section 14–33(c)(2)'s “in the course of the...