United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3164
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Delroy Fischer, *
*
Defendant - Appellant. *
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Submitted: May 10, 2011
Filed: June 17, 2011
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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.
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MURPHY, Circuit Judge.
Delroy Fischer was charged with possession of a firearm after having been
convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C.
§ 922(g)(9). Fischer pled guilty but reserved the right to appeal a decision of the
district court1 to deny his motion to dismiss the indictment. We affirm.
In January 2006, Fischer was charged in Nebraska state court with third degree
domestic assault under Neb. Rev. Stat. § 28-323. The arrest warrant and supporting
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
affidavit alleged that Fischer had yelled at, struck, and bit the nose of his former
girlfriend, who was also the mother of his children. Fischer pled no contest to an
amended charge of attempted assault in the third degree under Neb. Rev. Stat. § 28-
310. At his state court plea hearing, Fischer stipulated that the court would take
judicial notice of the factual allegations in the arrest warrant and affidavit, and the
court accepted those allegations as the "factual basis" of Fischer's plea.
More than two years later, Fischer's girlfriend reported to the police a domestic
disturbance involving Fischer. By Fischer's own admission he had gotten angry and
fired a shotgun. He was charged with possession of a firearm after conviction for a
misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9).
Fischer moved to dismiss the indictment, arguing that his Nebraska conviction
was not a "misdemeanor crime of domestic violence" as defined in 18 U.S.C.
§ 921(a)(33)(A) because it did not have "as an element, the use or attempted use of
physical force." Relying on the arrest warrant and supporting affidavit which
described Fischer's violent conduct, the district court concluded that Fischer's prior
conviction did fit the definition and denied his motion to dismiss.
Fischer moved to dismiss the indictment a second time after obtaining a nunc
pro tunc order from the Nebraska court stating that:
1. [Fischer] pled to, and was convicted of, violating Neb. Rev. Stat.
§ 28-310, which does not require a finding of assault or attempted assault
on an "intimate partner";
2. That the conviction in this case did not involve any factual findings
that any domestic assault or attempted domestic assault occurred;
3. That insofar as the record in this case may involve allegations of
domestic assault or attempted domestic assault, any and all allegations
are hereby stricken from the record.
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The district court found that the state court order did not change its analysis and again
denied Fischer’s motion.
In response to a later motion in limine filed by the government, Fischer also
raised a due process objection, contending that the state court had not adequately
advised him that his conviction could serve as the predicate offense for a federal
firearms violation. The district court rejected this argument, concluding that the state
court had no duty to give such advice.
Fischer subsequently entered a conditional guilty plea, reserving the right to
appeal the district court’s decision to deny his second motion to dismiss the
indictment. Because Fischer's conditional plea reserved an appeal only of the denial
of his second motion to dismiss, Fischer waived his due process claim, which was
raised months after that ruling. See United States v. Limley, 510 F.3d 825, 827 (8th
Cir. 2007) (conditional plea must "identify precisely" the pretrial issues preserved for
appellate review).2 The only question properly before this court is whether Fischer's
state court conviction of attempted assault in the third degree qualifies as a predicate
“misdemeanor crime of domestic violence."
We review de novo the district court's denial of Fischer's motion to dismiss the
indictment. Amerson, 599 F.3d at 855. Under 18 U.S.C. § 922(g)(9) anyone "who
has been convicted in any court of a misdemeanor crime of domestic violence" is
prohibited from possessing a firearm. A "misdemeanor crime of domestic violence"
is defined as a "misdemeanor under Federal, State, or Tribal law" that has, "as an
element,"
2
Though we need not reach Fischer's due process claim, it is nonetheless
unpersuasive. See United States v. Amerson, 599 F.3d 854, 855 (8th Cir. 2010) (per
curiam) ("Courts do not have a general duty to inform defendants of specific, detailed
consequences of their pleas.").
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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). Fischer does not dispute that he had a domestic
relationship with the victim in the incident which gave rise to his state court
conviction. It is not required that such a relationship be an element of the predicate
offense, so long as it is proven beyond a reasonable doubt. United States v. Hayes,
129 S. Ct. 1079, 1087 (2009). The only question here is whether the crime for which
Fischer was convicted "has, as an element, the use or attempted use of physical force"
or "the threatened use of a deadly weapon."
The statute under which Fischer was convicted provides:
(1) A person commits the offense of assault in the third degree if he:
(a) Intentionally, knowingly, or recklessly causes bodily injury to
another person; or
(b) Threatens another in a menacing manner.
Neb. Rev. Stat. § 28-310(1). This court ordinarily looks "only to the predicate offense
rather than to the defendant's underlying acts to determine whether the required
elements are present," United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999), but
when, as here, a criminal statute reaches a "broad range of conduct," an expanded
inquiry is warranted, Amerson, 599 F.3d at 855. That inquiry "may include the
written plea agreement, transcript of plea colloquy, and any explicit factual findings
by the trial judge to which the defendant assented." Id. (quoting United States v.
Howell, 531 F.3d 621, 623 (8th Cir. 2008)).
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Fischer argues that the district court erred in concluding that his conviction was
an adequate predicate offense because it is impossible to tell whether he was convicted
under § 28-310(1)(a) or (b). That argument is belied by the record of his state court
conviction. The state court explicitly stated that it accepted the allegations contained
in the arrest warrant and supporting affidavit as the "factual basis" of Fischer's plea.
Those documents indicate that Fischer physically assaulted the victim, striking her
face and biting her nose. Fischer did not object to those facts, and he stipulated to the
court's taking judicial notice of them. As there is little question that the biting of a
victim's nose is an intentional act causing bodily harm and not merely a threatening
act, it is clear that Fischer was convicted under § 28-310(1)(a). See Smith, 171 F.3d
at 620–21 (an expanded inquiry is appropriate to determine under which portion of a
statute a defendant was convicted).
Fischer further contends that even if § 28-310(1)(a) applies, it does not contain
the requisite force element because a hypothetical defendant could cause bodily injury
to another person without using physical force. In this respect, the present case is
indistinguishable from Amerson. The statute at issue there, Neb. Rev. Stat. § 28-
323(1)(a), contains nearly the same language as § 28-310(1)(a). Both statutes prohibit
conduct that "causes bodily injury" to another person and therefore encompass a broad
range of conduct. 599 F.3d at 855. Like Fischer, the defendant in Amerson did not
object to a state court's recitation of the facts establishing his use of physical force at
his guilty plea hearing. Id. In doing so, he "assented to factual findings that satisfy
the force requirement of 18 U.S.C. § 921(a)(33)(A)(ii)." Id. Because Amerson
controls here, the district court did not err in concluding that Fischer's previous
conviction qualified as a misdemeanor crime of domestic violence.
The district court correctly determined that the state court's nunc pro tunc order
did not change this analysis. That order only clarified that Fischer's previous
conviction under Neb. Rev. Stat § 28-310 did not contain an element requiring that
Fischer's victim was an "intimate partner" or that his assault was "domestic" in nature.
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Such an element is not required for characterization as misdemeanor crime of
domestic violence. See Hayes, 129 S. Ct. at 1087.
Because Fischer's state court conviction satisfied the force requirement and
there was no question that he had a domestic relationship with the victim, that
conviction served as a predicate misdemeanor crime of domestic violence for criminal
liability under 18 U.S.C. § 922(g)(9). We conclude that the district court did not err
in denying Fischer's motion to dismiss, and affirm its judgment.
COLLOTON, Circuit Judge, concurring.
I see no material distinction between this case and United States v. Amerson,
599 F.3d 854 (8th Cir. 2010) (per curiam), and I therefore agree that this panel must
affirm Delroy Fischer’s conviction based on circuit precedent. Amerson is probably
wrong, however, and Fischer is likely entitled to dismissal of the indictment under the
governing statutes.
To prosecute Fischer for a violation of 18 U.S.C. § 922(g)(9), the government
must show that he was previously convicted of a “misdemeanor crime of domestic
violence.” This crime is defined as an offense that, among other characteristics, “has,
as an element, the use or attempted use of physical force, or the threatened use of a
deadly weapon.” 18 U.S.C. § 921(a)(33)(A)(ii).
The difficulty with Amerson is the court’s holding that “the force requirement
of 18 U.S.C. § 921(a)(33)(A)(ii)” was satisfied by “factual findings” in the
defendant’s prior state court proceedings that the defendant used force against his
girlfriend. 599 F.3d at 855. The dispositive question under § 921(a)(33)(A)(ii) is not
whether the defendant actually used force in committing a misdemeanor offense, but
whether the offense of conviction “has, as an element, the use or attempted use of
physical force.” The federal court should use the judicial record of the defendant’s
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prior conviction in state court only to determine which offense under state law was the
offense of conviction. See United States v. Howell, 531 F.3d 621, 622-23 (8th Cir.
2008) (“If the predicate statute reaches a broad range of conduct, this court may
expand the inquiry to review the charging papers and jury instructions, but only to
determine which part of the statute the defendant violated.”). Once the offense of
conviction is identified, the court’s analysis must focus on the elements of that
offense. See Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (explaining that the comparable
language of 18 U.S.C. § 16(a) “requires us to look to the elements . . . of the offense
of conviction, rather than to the particular facts relating to petitioner’s crime”).
In this case, Fischer was convicted of attempted assault in the third degree
under Neb. Rev. Stat. §§ 28-201 and 28-310(1)(a). The judicial record shows that he
was convicted for intentionally and knowingly attempting to “cause[] bodily injury
to another person.” Neb. Rev. Stat. § 28-310(1)(a); R. Doc. 26, at 3-14. The offense
of attempting to cause bodily injury to another person does not appear to have, as an
element, the use or attempted use of physical force, because the State can establish that
the offense was committed without proving a use or attempted use of force. At oral
argument, counsel gave the example of a defendant intentionally signaling to the
driver of a vehicle that a roadway is clear while knowing that the driver is likely to
cause an accident and suffer injury by proceeding. Judicial decisions concerning
comparable statutes provide similar analysis. See United States v. Villegas-
Hernandez, 468 F.3d 874, 880-81 (5th Cir. 2006) (“[I]t seems an individual could be
convicted of intentional assault in the third degree for injury caused not by physical
force, but by guile, deception, or even deliberate omission.”) (internal quotation
omitted); United States v. Perez-Vargas, 414 F.3d 1282, 1286-87 (10th Cir. 2005)
(citing examples of causing bodily injury by intentionally placing a barrier in front of
a car causing an accident, or intentionally exposing someone to hazardous chemicals);
Chrzanoski v. Ashcroft, 327 F.3d 188, 196 (2d Cir. 2003) (“[H]uman experience
suggests numerous examples of intentionally causing physical injury without the use
of force, such as a doctor who deliberately withholds vital medicine from a sick
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patient.”); cf. United States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011) (holding
that a Missouri assault statute has as an element the use or attempted use of physical
force, where a person commits the crime if he “[a]ttempts to cause or knowingly
causes physical injury to another person by means of a deadly weapon or dangerous
instrument”) (quoting Mo. Rev. Stat. § 565.060.1(2)) (emphasis added); United States
v. Malloy, 614 F.3d 852, 859-60 (8th Cir. 2010) (holding that an Iowa statute
requiring that the defendant “inflict[] bodily injury” while resisting or obstructing a
peace officer has, as an element, the use, attempted use, or threatened use of physical
force against the person of another, because it was “difficult, if not impossible, to
imagine how the charged conduct could be carried out without actually using physical
force against the person of another”) (internal quotation omitted); United States v.
Smith, 171 F.3d 617, 620-21 & n.2 (8th Cir. 1999) (holding that defendant pleaded
guilty to “an offense with an element of physical force within the meaning of 18
U.S.C. § 921(a)(33)(A)(ii),” where the offense of conviction required proof of an “act
which is intended to cause pain or injury to, or which is intended to result in physical
contact which will be insulting or offensive to another,” Iowa Code § 708.1(1)
(emphasis added), and “such physical contact, by necessity, requires physical force
to complete”).
Unlike the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), under which an
offense can qualify as a “violent felony” if it presents a serious potential risk of
physical injury to another person in the “ordinary case,” James v. United States, 550
U.S. 192, 208 (2007), the rule of § 921(a)(33)(A)(ii) is that a qualifying offense must
have the use or attempted use of physical force “as an element,” which by definition
means that proof of that fact is required in every case. United States v. Vargas-Dunn,
356 F.3d 598, 605 (5th Cir. 2004) (en banc); but cf. United States v. Salean, 583 F.3d
1059, 1060 (8th Cir. 2009). For better or worse, the decision of Congress to define
the scope of § 922(g)(9) by reference to elements rather than underlying facts means
that some persons may actually use force while committing a misdemeanor offense
against a spouse or intimate partner, yet remain outside that provision’s criminal
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prohibition. The courts, of course, must apply the statutes as written, and it appears
to me that Fischer is not a prohibited person under the governing definitions.
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