United States v. Voisine

United States Court of Appeals
For the First Circuit

Nos. 12-1213
12-1216

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN L. VOISINE; WILLIAM E. ARMSTRONG III,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

Virginia G. Villa, Assistant Federal Defender, Federal
Defender Office, for appellants.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

January 30, 2015
 LYNCH, Chief Judge. The Supreme Court has directed us,

in light of United States v. Castleman, 134 S. Ct. 1405 (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 18 U.S.C. § 921(a)(33)(A), even

though the state statutes allowed conviction based on a

recklessness mens rea. Armstrong v. United States, 134 S. Ct. 1759

(2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir.

2013); United States v. Voisine, 495 F. App'x 101 (1st Cir. 2013)

(per curiam). If so, then their motions to dismiss their federal

charges for possessing firearms after such convictions, in

violation of 18 U.S.C. § 922(g)(9), were properly denied.

Our answer is informed by congressional recognition in

§ 922(g)(9) of the special risks posed by firearm possession by

domestic abusers. "Domestic violence often escalates in severity

over time . . . and the presence of a firearm increases the

likelihood that it will escalate to homicide . . . ." Castleman,

134 S. Ct. at 1408. It is also informed by the congressional

choice in the federal sentencing scheme to honor each state's

choice as to how to define its own crimes, through statutory text

and judicial decision.

As we see it, this case turns on the unique nature of

§ 922(g)(9). That section is meant to ensure that individuals who

engage in the "seemingly minor act[s]" that actually constitute

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domestic violence, like squeezing and shoving, may not possess a

firearm. Castleman, 134 S. Ct. at 1412. This range of predicate

acts is broader than that found in other federal prohibitions

involving the use of physical force. Applying the teachings of

Castleman, we find that Maine's definition of reckless assault fits

within § 922(g)(9).

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, 18 U.S.C.

§ 922(g)(9) was enacted to close a loophole. "While felons had

long been barred from possessing guns, many perpetrators of

domestic violence are convicted only of misdemeanors." Castleman,

134 S. Ct. at 1409. No ban prevented those domestic abusers from

possessing firearms, yet there is a "sobering" connection between

domestic violence and homicide. Id. The "manifest purpose" of

§ 922(g)(9), the Lautenberg Amendment to the Gun Control Act of

1968, was to remedy the "potentially deadly combination" of

"[f]irearms and domestic strife." United States v. Hayes, 555 U.S.

415, 426-27 (2009).

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 Under § 922(g)(9), it is against federal law for any

person "who has been convicted in any court of a misdemeanor crime

of domestic violence" to "possess in or affecting commerce[] any

firearm or ammunition." In turn, a "misdemeanor crime of domestic

violence" is defined in § 921(a)(33)(A) as an offense that (1) is

a misdemeanor under federal, state, or tribal law, and (2) "has, as

an element, the use or attempted use of physical force . . .

committed by a current or former spouse, parent, or guardian of the

victim" or by a person in a similar domestic relationship with the

victim.

The predicate offenses in these cases are convictions

under Maine assault statutes. Me. Rev. Stat. Ann. tit. 17-A,

§§ 207(1)(A), 207-A(1)(A). Under Maine law, a "person is guilty of

assault if[ t]he person intentionally, knowingly or recklessly

causes bodily injury or offensive physical contact to another

person." Id. § 207(1)(A). A violation of § 207 constitutes

misdemeanor domestic violence assault if the "victim is a family or

household member." Id. § 207-A(1)(A).

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." Id. § 35(3)(A). The statute goes on to give more

meat to the "conscious disregard" definition. It refers to

disregard of a risk, "when viewed in light of the nature and

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purpose of the person's conduct and the circumstances known to that

person," that "involve[s] a gross deviation from the standard of

conduct that a reasonable and prudent person would observe in the

same situation." Id. § 35(3)(C).

B. Facts

William E. Armstrong III was convicted in 2002 and 2008

of assaulting his wife in violation of Maine's misdemeanor assault

statutes, Me. Rev. Stat. Ann. tit. 17-A §§ 207(1)(A), 207-A(1)(A).

In May 2010, twenty-nine months after the last domestic assault

conviction, the Maine State Police searched the Armstrong residence

for drug paraphernalia and marijuana. They discovered six firearms

and ammunition. The police notified the federal Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF), which executed a search.

That search uncovered only ammunition, but Armstrong later

explained that he had arranged for a friend to remove the guns.

ATF agents observed the guns at the friend's home.

Armstrong was arrested and federally charged with being

a prohibited person in possession of a firearm, in violation of

§ 922(g)(9). The indictment listed Armstrong's 2008 domestic

violence assault conviction as the predicate offense.

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

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anonymous tip, state and local law enforcement officials arrested

Voisine on the federal misdemeanor charge of killing a bald eagle

in violation of 16 U.S.C. § 668(a). When conducting a background

check, they discovered his 2003 misdemeanor simple assault. As

Voisine had turned a rifle over to the police during the

investigation, the criminal information charged him with violating

§ 922(g)(9) as well as § 668(a).

C. Procedural History

Both Armstrong and Voisine moved to dismiss, arguing that

their indictment and information did not charge a federal offense

and that § 922(g)(9) violated the Constitution. The district court

denied the motions, and both defendants entered guilty pleas

conditioned on the right to appeal the district court's decision.1

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 F. App'x. at

102 (incorporating the reasoning from Armstrong as there were "no

pertinent factual differences" distinguishing the two cases). The

defendants had argued that a misdemeanor assault on the basis of

1
In February 2012, Armstrong was sentenced to three years of
probation and a fine and special assessment totaling $2,600. Also
in February 2012, Voisine was sentenced to a year and a day
imprisonment on the § 922(g)(9) charge with two years supervised
release, concurrent with nine months imprisonment and one year
supervised release on the § 668(a) charge, and $125 in special
assessments.

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offensive physical contact, as opposed to one causing bodily

injury, is not a "use of physical force," and, concordantly, not a

"misdemeanor crime of domestic violence." Relying on United States

v. Booker, 644 F.3d 12 (1st Cir. 2011), and United States v. Nason,

269 F.3d 10 (1st Cir. 2001), we held that § 922(g)(9) did not

distinguish between violent and nonviolent convictions, and the

statute included the offensive physical contact portion of the

Maine statute within its definition of "physical force."

Armstrong, 706 F.3d at 6; Voisine, 495 F. App'x at 101-02.

Second, the defendants argued that § 922(g)(9) violated

the Second Amendment as applied to them. This argument was

foreclosed by Booker, which denied an identical argument framed as

a facial challenge. 644 F.3d at 22-26; see Armstrong, 706 F.3d at

7-8; Voisine, 495 F. App'x. at 101.

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, 134 S.

Ct. 1759 (2014) (Mem.). In Castleman, the Court had addressed the

issue of whether the phrase "use of physical force" in

§ 921(a)(33)(A) required violence or could be satisfied by

offensive touching. That issue had been the source of a circuit

split. Castleman resolved the question in agreement with Nason,

holding that "Congress incorporated the common-law meaning of

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'force' -- namely, offensive touching -- in § 921(a)(33)(A)'s

definition of a 'misdemeanor crime of domestic violence.'"

Castleman, 134 S. Ct. at 1410. The Supreme Court left open

whether a conviction with the mens rea of recklessness could serve

as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court

stated, "the Courts of Appeals have almost uniformly held that

recklessness is not sufficient," and listed ten cases.2 Id. at

1414 n.8. It then added, "But see United States v. Booker, 644

F.3d 12, 19-20 (C.A.1 2011)." Id. The footnote did not say Booker

was wrong. It gave no further definition of recklessness. Nor did

it account for the differences in the statutory sections being

interpreted in the other cases cited.

This case comes to us following the Supreme Court's

remand.

II.

In construing § 922(g)(9)'s applicability to a given

case, we use the "categorical approach." Under that approach the

2
United States v. Palomino Garcia, 606 F.3d 1317, 1335–36
(11th Cir. 2010); Jimenez–Gonzalez v. Mukasey, 548 F.3d 557, 560
(7th Cir. 2008); United States v. Zuniga–Soto, 527 F.3d 1110, 1124
(10th Cir. 2008); United States v. Torres–Villalobos, 487 F.3d 607,
615–16 (8th Cir. 2007); United States v. Portela, 469 F.3d 496, 499
(6th Cir. 2006); Fernandez–Ruiz v. Gonzales, 466 F.3d 1121, 1127–32
(9th Cir. 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468–69
(4th Cir. 2006); Oyebanji v. Gonzales, 418 F.3d 260, 263–65 (3d
Cir. 2005) (Alito, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d
Cir. 2003); United States v. Chapa–Garza, 243 F.3d 921, 926 (5th
Cir. 2001).

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elements of the predicate offense (here, the Maine assault statute)

must be identical to or categorically within the description of the

subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.

Ct. at 1413. Where, as here, the predicate statute is "divisible"

into crimes with alternative sets of elements, we may consider

whether the elements under which the defendant was convicted are

still within the subsequent provision, an inquiry known as the

"modified categorical approach." Id. at 1414. The government

concedes that the record here of the state proceedings is too

sparse to "discern under which prong of Maine's statute" the

defendants were convicted, and they urge us against "resort[ing] to

the modified categorical approach." For us to affirm, we must find

that the Maine statute -- including the reckless acts it prohibits

-- categorically fits within § 922(g)(9).

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 § 922(g)(9). We do not agree that

is the proper way to frame the question. That framing is

predicated on the notion that particular statutory language must be

interpreted identically in different sections across the U.S. Code.

To the contrary, context matters, as the Supreme Court demonstrated

in Castleman itself. 134 S. Ct. at 1410-12. The question is

whether Maine's definition of recklessness fits within

§ 921(a)(33)(A)'s phrase "use of physical force."

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Section 921(a)(33)(A) is a provision crafted in the unique context

of domestic violence, and it should be so interpreted. Castleman,

134 S. Ct. at 1410-12 & n.4; Booker, 644 F.3d at 18-21.

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

§ 921(a)(33)(A) undermines our prior decisions. Castleman's

emphasis on context reinforces, rather than undermines, our earlier

decision.

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

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the footnote. Each of those cases3 construes a different statutory

definition, and all but one arose in a different context.

3
All but one of the ten cases cited in Castleman footnote 8
as deciding the § 922(g)(9) mens rea issue in fact considered other
statutes in other contexts and followed the reasoning of Leocal v.
Ashcroft, 543 U.S. 1, 13 (2004). Six cases analyzed 18 U.S.C.
§ 16. In Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir. 2005)
(Alito, J.), the Third Circuit read Leocal to apply to § 16(b),
which offered an alternative definition of "crime of violence" to
§ 16(a), and decided that reckless crimes cannot be crimes of
violence under that section. Three other cases from the footnote
did the same. See Garcia v. Gonzales, 455 F.3d 465, 467-69 (4th
Cir. 2006) (interpreting § 16(b), as referenced in an immigration
statute); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 559-62 (7th
Cir. 2008) (same); United States v. Torres-Villalobos, 487 F.3d
607, 614-17 (8th Cir. 2007) (same). Two more interpreted the same
provision, but without relying on Leocal, which had yet to be
decided. See Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir.
2003); United States v. Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir.
2001). All of these cases interpreted the term "crime of violence"
as part of an aggravated felony statute, and Castleman is clear
that the interpretive rules governing felonies do not apply to
misdemeanor crimes of domestic violence. 134 S. Ct. at 1411.
Three of the remaining four cases interpreted the term "use of
physical force" in the context of a Sentencing Guidelines provision
imposing an enhancement for defendants who were deported after
committing a felony "crime of violence," U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A). Each of those cases analyzed the
provision by analogizing to § 16 and applying Leocal. For example,
in United States v. Palomino Garcia, the Eleventh Circuit explained
that both § 16 and the Guidelines provision define the phrase
"crime of violence," and they are "almost identically worded." 606
F.3d 1317, 1335 (11th Cir. 2010). It then cited Leocal and the
other § 16 cases mentioned above to conclude that a "use of
physical force" cannot be reckless. Id. at 1335-36; see also
United States v. Portela, 469 F.3d 496, 498-99 (6th Cir. 2006);
United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008).
Even if § 16 were analogous to § 922(g)(9), that would not
resolve the matter. The Third Circuit has explained that some
reckless convictions can serve as predicates for § 16 offenses,
depending on the nature of the recklessness. Aguilar v. Att'y
Gen., 663 F.3d 692, 698-700 (3d Cir. 2011); cf. United States v.
Espinoza, 733 F.3d 568, 572-74 (5th Cir. 2013) (allowing a reckless
conviction to be a predicate for a violent felony under the Armed
Career Criminal Act).

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 Footnote 8 begins by describing the issue as an open

question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13

(2004). In Leocal, the Supreme Court interpreted 18 U.S.C.

§ 16(a), the definition of the term "crime of violence." 543 U.S.

at 8-10. Such a crime requires "use of physical force," and Leocal

held that the term "use" suggests a mens rea higher than

negligence, but it withheld judgment on whether recklessness is

sufficient, Castleman, 134 S. Ct. at 1414 n.8; Booker, 644 F.3d at

19-20.

Considering context, section 16(a) is not analogous to

the section which concerns us, § 922(g)(9). Castleman itself

distinguished the term "use of force" in § 16(a), a provision for

undifferentiated violent crimes, from the term "use of physical

force" in § 922(g)(9)'s domestic violence provision. "Domestic

violence" is a "term of art" that "encompasses a range of force

broader than that which constitutes 'violence' simpliciter,"

including "acts that might not constitute 'violence' in a

nondomestic context." Castleman, 134 S. Ct. at 1411 & n.4. A

"crime of violence," by contrast, "suggests a category of violent,

active crimes." Id. at 1411 n.4 (quoting Leocal, 559 U.S. at 140)

(internal quotation mark omitted). As the Supreme Court explained,

a "'squeeze of the arm [that] causes a bruise'" is "hard to

describe as . . . 'violence'" within the meaning of § 16, but "easy

to describe as 'domestic violence'" within the meaning of

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§ 922(g)(9). Id. at 1412 (alterations in original) (quoting Flores

v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003)) (internal quotation

marks omitted).

Unsurprisingly, the drafting history of § 922(g)(9)

indicates that "Congress expressly rejected" the § 16(a)

definition, instead developing the term "misdemeanor crime of

violence" that was "'probably broader' than the definition" in

§ 16. Booker, 644 F.3d at 19 (citing a statement by Sen.

Lautenberg). And where Congress wanted to define a domestic

violence crime as a § 16 crime of violence occurring in the

domestic context, it has done so -- even in the same legislation

that contained the Lautenberg Amendment. See, e.g., 8 U.S.C.

§ 1227(a)(2)(E). "That it did not do so here suggests, if

anything, that it did not mean to." Castleman, 134 S. Ct. at 1412

n.6.

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 § 16. In Fernandez-Ruiz v.

Gonzales, the Ninth Circuit considered whether a reckless

misdemeanor could serve as a predicate "crime of domestic

violence." 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc) (citing

8 U.S.C. § 1227(a)(2)(E)(i)). Unlike § 922(g)(9), however, the

relevant statute in Fernandez-Ruiz defined "crime of domestic

violence" as a "crime of violence" (referencing § 16) committed

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against someone in a domestic relationship with the perpetrator.

Id. at 1124-25. The Ninth Circuit accordingly conducted a § 16

analysis, applying Leocal and cases from other circuits to reach

its conclusion. Id. at 1127-32. But even that result did not

follow so obviously from Leocal, as four judges dissented

emphasizing the differences between domestic violence and other

contexts. Id. at 1136 (Wardlaw, J., dissenting).

On remand of this case to us, the defendants' brief adds

to the cases in the footnote by citing two other § 922(g)(9) cases,

not mentioned in Castleman, which they say directly conflict with

Booker. We disagree. In United States v. White, 258 F.3d 374 (5th

Cir. 2001), the relevant predicate statute criminalized reckless

"conduct that places another in imminent danger of serious bodily

injury." Id. at 381. The court found that the statute did not

require a completed "use of physical force," since it was satisfied

by a risk of injury, and the statute extended beyond an "attempted

use of force" because attempt liability requires specific intent

rather than recklessness. Id. at 382-84. Rather than construing

the phrase "use of physical force," as Booker did, White relied on

principles of attempt liability to rule out reckless predicate

crimes.

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

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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 § 922(g)(9)'s

particular definition of a "misdemeanor crime of domestic

violence." Rather, § 922(g)(9)'s unique context, as described in

Castleman and supported by the legislative history, suggests that

§ 922(g)(9) should be interpreted more broadly than other

provisions, including § 16.

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 § 921(a)(33)(A), the definitional

provision for "misdemeanor crime of domestic violence." 134 S. Ct.

at 1410. "[A]bsent other indication, 'Congress intends to

incorporate the well-settled meaning of the common law terms it

uses.'" Id. (quoting Sekhar v. United States, 133 S. Ct. 2720,

2724 (2013)) (internal quotation mark omitted). As a result, the

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statutory term "physical force" is satisfied by "the degree of

force that supports a common-law battery conviction." Id. at 1413.

The parties agree that, under Castleman, the term "use of physical

force" also incorporates the common law mens rea for battery.

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 (2010); Lynch v. Commonwealth, 109 S.E. 427, 428 (Va. 1921);

Commonwealth v. Hawkins, 32 N.E. 862, 863 (Mass. 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

common-law battery conviction." 134 S. Ct. at 1411. Castleman

also explains that Congress incorporated "the common-law meaning of

'force.'" Id. at 1410. Castleman holds that the term "use of

physical force" includes both causing bodily injury and offensive

contact. Defendants concede that reckless causation of bodily

injury is a use of physical force. We see no reasoned argument

that offensive physical contact does not similarly entail the use

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of force simply because it is inflicted recklessly as opposed to intentionally.

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, § 922(g)(9) is a statute with a

particular purpose: to ensure that domestic abusers convicted of

misdemeanors, in addition to felonies, are barred from possessing

firearms. 134 S. Ct. at 1408-12. "[B]ecause perpetrators of

domestic violence are 'routinely prosecuted under generally

applicable assault or battery laws,'" id. at 1411 (quoting Hayes,

555 U.S. at 427), we think Congress intended the firearm

prohibition to apply to those convicted under typical misdemeanor

assault or battery statutes. See id. at 1411, 1413. That

encompasses assault statutes for those states that allow conviction

with a mens rea of recklessness where recklessness is defined as

including a degree of intentionality. A victim of domestic

violence often encounters the perpetrator again, and a broader

reading of § 922(g)(9)'s mens rea requirement better ensures that

a perpetrator convicted of domestic assault is unable to use a gun

in a subsequent domestic assault. If Congress had wanted to impose

a higher mens rea, it could have done so explicitly, as it did in

the immediately preceding section of the bill that established

§ 922(g)(9). Booker, 644 F.3d at 18 & n.5.

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 This view is confirmed by the legislative history of

§ 922(g)(9). Senator Lautenberg explained that § 922(g)(9) was a

broad prohibition covering "any person convicted of domestic

violence," without reference to a particular mental state. 142

Cong. Rec. S10377-01 (1996). Another senator made statements to

the same effect. See id. Additionally, Senator Lautenberg

described the law's application to scenarios without clear intent,

in which domestic arguments "get out of control," "the anger will

get physical," and one partner will commit assault "almost without

knowing what he is doing." 142 Cong. Rec. S11872-01 (Sept. 30,

1996). Such conduct may not be "knowing," but it nonetheless

constitutes a "use" of physical force -- whether it causes

offensive contact or bodily harm.

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. Me. Rev. Stat. Ann. tit. 17-A § 35(3)(A) (emphasis added).

The disregard of the risk is "viewed in light of the nature and

purpose of the person's conduct and the circumstances known to the

person." Id. § 35(3)(C) (emphasis added). Further, it must

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"involve a gross deviation" from the standard of reasonable care.

Id.

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 certain" to occur. Id. § 35(2)(a).

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. Cf. 2

LaFave, Substantive Criminal Law, § 5.4(f). To act knowingly and

recklessly, but not negligently, the person must be aware of the

risk: the recklessness definition requires reference to "the nature

and purpose of the person's conduct and the circumstances known to

the person." Maine's Supreme Judicial Court has made clear that

the recklessness inquiry focuses on the person's "subjective state

of mind." Stein v. Me. Criminal Justice Acad., 95 A.3d 612, 618

(Me. 2014) (quoting State v. Goodall, 407 A.2d 268, 280 (Me. 1979))

(internal quotation mark omitted); see State v. Hicks, 495 A.2d

765, 771 (Me. 1985) (comparing the subjective test for recklessness

with the objective test for negligence).

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

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was located." State v. Kline, 66 A.3d 581, 584 (Me. 2013) (citing

Me. Rev. Stat. Ann. tit. 17-A § 35). It also affirmed a conviction

for reckless conduct with the use of a dangerous weapon when the

defendant "drove his van alongside the victim's vehicle, remaining

there . . .[,] used his van to push the victim's vehicle into heavy

oncoming traffic, and made contact with that vehicle at least

once." State v. York, 899 A.2d 780, 783 (Me. 2006).

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 § 16

encompassed reckless predicate convictions. In Fernandez-Ruiz,

four dissenting judges of the Ninth Circuit observed that Arizona's

definition of recklessness, like Maine's, requires that the person

"be aware of a substantial and unjustifiable risk and affirmatively

choose to act notwithstanding that risk." Id. Recklessness

includes an "volitional, active decision, which necessarily

involves 'a higher degree of intent than negligent or merely

accidental conduct.'" Id. (quoting Leocal, 543 U.S. at 9); accord

Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 449-50 (4th Cir. 2005)

(Niemeyer, J., dissenting) ("Unlike a person who accidentally

injures another person, a person who acts recklessly in bringing

about harm to another is aware of the nature of his conduct and

thus can be said to be 'actively employ[ing]' the physical force

-20-
that results in injury 'against another.'" (alteration in original)

(quoting Leocal, 543 U.S. at 9)).

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, § 922(g)(9) is meant to

embrace those seemingly minor predicate acts, occurring sometimes

in moments of passion, where the perpetrator consciously

disregarded a risk in light of known circumstances. This often

constitutes domestic violence. Reckless assaults in Maine fit that

congressional intent for § 922(g)(9), including the paradigm of a

domestic assault as described by Senator Lautenberg. As the

dissenting judges on the Ninth Circuit, concerned with a different

federal statute, explained:

"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

-21-
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 § 922(g)(9) even though the

husband did not intend to cause bodily injury or offensive contact.

Similarly, if Maine prosecutes and convicts a parent for assault

for waving a lit cigarette near a child in anger, the cigarette

touching and burning the child, that conviction in context may well

be an act of domestic violence.

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 § 922(g)(9) encompasses

reckless uses of force, regardless of whether the use of force

results in bodily injury or an offensive physical contact. If the

husband's knife grazes his wife or harms her grievously, it is an

assault all the same.4

4
The dissent wrongly relies on our decision in United States
v. Bayes, 210 F.3d 64 (1st Cir. 2000), for the proposition the
federal assault statute requires deliberate action. Id. at 69
(citing 18 U.S.C. § 113(a)(5)). Bayes says that "it is sufficient
to show the defendant deliberately touched another in a patently
offensive manner without justification or excuse." Id. In
deciding that the statue did not require specific intent, Bayes did
not pass on whether recklessness would satisfy the statute.
Further, the dissent relies on the rule of lenity, an argument not

-22-
 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 § 922(g)(9)

predicate. See James v. United States, 550 U.S. 192, 208 (2007)

(explaining that the categorical approach focuses on "the ordinary

case," not "every conceivable factual offense covered by a

statute"); United States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014)

("[I]n assessing whether the elements of the candidate proposed as

a predicate crime are overbroad, we need not consider fanciful,

hypothetical scenarios."). Maine will not prosecute all "[m]inor

uses of force." Castleman, 134 S. Ct. at 1412; see Flores v.

Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003) (Evans, J., concurring)

("[P]eople don't get charged criminally for expending a newton of

force against victims. [The defendant] actually beat his

wife . . . ."). But some grabbing and slapping

"accumulat[es] . . . over time," "subject[ing] one intimate partner

to the other's control." Castleman, 134 S. Ct. at 1412. When it

eventually "draws the attention of authorities and leads to a

successful prosecution for a misdemeanor offense, it does not

offend common sense or the English language to characterize the

resulting conviction as a 'misdemeanor crime of domestic

violence.'" Id. After all, not all assaults will serve as

made by the defendants.

-23-
§ 922(g)(9) predicates, but only those occurring in the domestic

context.

To be clear, we do not decide that, on the spectrum from

negligence to intentional acts, recklessness is always closer to

the latter. Cf. Fernandez-Ruiz, 466 F.3d at 1141-42 (Wardlaw, J.,

dissenting) ("Recklessness is a distinct mens rea, which lies

closer to intentionality than to negligence."). We also do not

decide that recklessness in the abstract is always enough to

satisfy § 922(g)(9).5 We decide only that the Maine definition is

sufficiently volitional that it falls within the definition of "use

of physical force" applied in § 922(g)(9). See Booker, 644 F.3d at

18.

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

5
As recognized at 2 LaFave, Substantive Criminal Law, § 5.4
n.6, "usage of the term [recklessness] has not been consistent."
See, e.g., United States v. Meeks, 664 F.3d 1067, 1070-71 & n.2
(6th Cir. 2012) (explaining that "recklessness" in Kentucky is a
lower standard than "being aware of and consciously disregarding a
substantial and unjustifiable risk"). As the dissent observes,
while the Model Penal Code definition is similar to Maine's (though
not identical), Puerto Rico's definition--until the new statute is
in effect--has language quite different from the Maine statute.

-24-
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

§ 922(g)(9) violates the Second Amendment as applied to them. They

explicitly raise the argument only to preserve it, and for good

reason: it is "foreclosed by binding precedent in this circuit."

Carter, 752 F.3d at 13; see Armstrong, 706 F.3d at 7-8; Booker, 644

F.3d at 22-26.

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 § 922(g)(9)

violates the Fifth Amendment, Sixth Amendment, and Ex Post Facto

-25-
Clause because the determination that the predicate crime involves

domestic violence is made at the time of the § 922(g)(9)

conviction, rather than at the time of the predicate conviction.

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 United

States v. Hayes, 555 U.S. 415, 421 (2009).

The defendants argue that Hayes was implicitly overruled

by a recent Supreme Court decision, Descamps v. United States, 133

S. Ct. 2276 (2013). Hayes held that the determination that an

earlier conviction involved a domestic relationship is an element

of § 922(g)(9), not the predicate conviction. 555 U.S. at 418.

Descamps limited the extent to which courts can look at the facts

underlying the predicate conviction to determine whether they fit

the subsequent conviction, under the modified categorical approach.

133 S. Ct. at 2281-82. The defendants argue that, as in Descamps,

the subsequent court may not evaluate the predicate conviction to

-26-
determine a fact about it -- here, whether it involved a domestic

relationship.

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 § 922(g)(9) proceeding.

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.

-Dissenting Opinion Follows-

-27-
 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, 134 S. Ct. 1405 (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 United States v.

Armstrong, 134 S. Ct. 1759 (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.

-28-
 On remand, this case requires us to answer, at the very

least, one question of statutory interpretation: whether a Maine

conviction for the "reckless" causation of an "offensive physical

contact" necessarily involves the "use or attempted use of physical

force" as required to establish a "misdemeanor crime of domestic

violence" for purposes of 18 U.S.C. § 922(g)(9). The majority

fails to persuasively explain why, in all cases, the merely

reckless causation of offensive physical contact categorically must

involve the "use or attempted use of physical force," 18 U.S.C.

§ 921(a)(33)(A), particularly in light of the host of cases

strongly suggesting otherwise. As explained herein, these cases

hold that the "use" of physical force requires the active or

intentional employment of force, which cannot be satisfied by

merely reckless conduct.

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.

-29-
 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 18 U.S.C. § 16. See id. at 1414 n.8 (listing cases).

Several of these cases6 analyzed § 16(a), which defines a "crime of

violence" as "an offense that has as an element the use, attempted

use, or threatened use of physical force against the person or

property of another." 18 U.S.C. § 16(a). That language is

materially indistinguishable, as relevant here, from the Lautenberg

Amendment's definition of a "misdemeanor crime of domestic

violence" as an offense that "has, as an element, the use or

attempted use of physical force." 18 U.S.C. § 922(g)(9); id.

§ 921(a)(33)(A). "[W]hen Congress uses the same language in two

statutes having similar purposes, . . . it is appropriate to

presume that Congress intended that text to have the same meaning

6
See United States v. Torres–Villalobos, 487 F.3d 607, 616–17
(8th Cir. 2007) (holding that Minnesota second-degree manslaughter
can be committed recklessly without the intentional use of force,
and therefore is not a crime of violence under § 16(a));
Fernández-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir. 2006)
(holding that reckless conduct cannot constitute the "use" of force
for purposes of § 16(a)); García v. Gonzales, 455 F.3d 465, 468
(4th Cir. 2006) (reasoning that the "use" of "physical force"
requires the intentional employment of physical force, and
therefore holding that a New York second-degree reckless assault
conviction is "beyond the scope" of § 16(a)).

-30-
in both statutes." Smith v. City of Jackson, Miss., 544 U.S. 228,

233 (2005).7

The majority opinion concedes that this case presents a

"close" question. Ante, at 3. I agree. Given the Supreme Court

and circuit court cases interpreting similar statutes and holding

that merely reckless conduct is insufficient to constitute the

"use" of physical force, I believe that the rule of lenity also

forecloses the defendants' convictions here. Indeed, it is a

"familiar principle" that "'ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity'" towards

the accused. Skilling v. United States, 561 U.S. 358, 410 (2010)

7
Moreover, the cases involving § 16(b) provide even stronger
support for the defendants' position here, as § 16(b) involves
language more susceptible than that of § 16(a) or the Lautenberg
Amendment to a reading that encompasses reckless conduct. Compare
18 U.S.C. § 16(b) (defining a "crime of violence" as a felony that
"involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense"), with Model Penal Code § 2.02(2)(c) ("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.").
Yet most courts nonetheless have rejected arguments that § 16(b)
can be satisfied by a predicate offense with a mens rea of
recklessness. See, e.g., Jobson v. Ashcroft, 326 F.3d 367, 373 (2d
Cir. 2003) ("[T]he verb 'use' in section 16(b), particularly when
modified by the phrase 'in the course of committing the offense,'
suggests that section 16(b) 'contemplates only intentional conduct
and refers only to those offenses in which there is a substantial
likelihood that the perpetrator will intentionally employ physical
force.'" (internal quotation marks omitted) (quoting Dalton v.
Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001))).

-31-
(quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).8 The

rule of lenity bars courts from giving the text of a criminal

statute "a meaning that is different from its ordinary, accepted

meaning, and that disfavors the defendant." Burrage v. United

States, 134 S. Ct. 881, 891 (2014). In my view, by permitting a

conviction based on the reckless causation of offensive physical

contact, the government and the majority seek to give the "use

. . . of physical force" a meaning different from that phrase's

ordinary meaning. The ordinary meaning of the "use" of physical

force requires the intentional employment of force, and not the

merely accidental, negligent, or reckless use of such force. Cf.

Leocal v. Ashcroft, 543 U.S. 1, 4 (2004) (giving an ordinary and

natural reading to the phrase "'use . . . of physical force against

the person or property of another,'" and holding that this phrase

requires "a higher degree of intent than negligent or merely

accidental conduct" (quoting 18 U.S.C. § 16(a))); id. (explaining

that "'use' requires active employment," and reasoning that "a

person would 'use . . . physical force against' another when

8
In addition to its acknowledgment that this is a "close"
case, the majority's reliance on legislative history also suggests
that the statutory text is ambiguous. Cf. Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 184 n.29 (1978) ("When confronted with a
statute which is plain and unambiguous on its face, we ordinarily
do not look to legislative history as a guide to its meaning.").
Furthermore, the contrasting results reached by the First Circuit
and our sister circuits on the interpretation of the phrase "use
. . . of physical force" provide additional evidence of that
statutory text's ambiguity.

-32-
pushing him . . . [but not] by stumbling and falling into him");

García v. Gonzales, 455 F.3d 465, 468 (4th Cir. 2006) (holding that

"the use . . . of physical force" requires the intentional

employment of physical force). Moreover, given that the Supreme

Court has stated that (1) "the merely reckless causation of bodily

injury . . . may not be a 'use' of force," and (2) "the Courts of

Appeals have almost uniformly held that recklessness is not

sufficient" to constitute the "use" of force, Castleman, 134 S. Ct.

at 1414 & n.8, I cannot see how the proper application of the rule

of lenity permits affirmance of the defendants' convictions.

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 contact. Although the majority states that they

fail to see why the distinction between "bodily injury" and

"offensive physical contact" "is material to the analysis here,"

ante, at 22, I explain herein why that distinction matters. See

infra Section II(B)(1). Namely, even if recklessness were a

sufficient mens rea for purposes of bodily injury, a conviction

-33-
under the Lautenberg Amendment nonetheless cannot rest on the

reckless causation of offensive physical conduct in Maine.9

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 (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

9
All of the examples cited by the majority -- squeezing,
shoving, a squeeze of the arm that causes a bruise, shooting a
powerful handgun in the direction of a neighbor's home, driving a
van to make contact with another vehicle and to push the victim's
vehicle into heavy oncoming traffic, a husband throwing a knife
towards his wife intending to instill fear but actually striking
her, and waving a lit cigarette near a child in anger so that the
cigarette touches and burns the child, ante, at 3, 12, 19-20, 21-22
-- involve intentional conduct that is reckless as to the result,
which in nearly all of those examples is bodily injury. By
contrast, the Maine statutes at issue here permits conviction for
far less culpable conduct: merely reckless conduct that is also
reckless as to the result of offensive physical contact. In so
doing, the majority conflates mens rea as to the result with mens
rea as to the underlying conduct that causes the result. It is
this distinction that explains why common-law battery permits
conviction for (1) intentional conduct that is reckless as to the
result of bodily injury and (2) intentional conduct that is
intentional as to the result of bodily injury or offensive
touching, but does not permit conviction for (3) reckless conduct
that is merely reckless as to the result of an offensive touching.

-34-
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 of the Lautenberg

Amendment. Given that the record does not permit a conclusion that

the defendants' Maine convictions rested on a subsumed offense that

10
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 Me. Rev. Stat. tit. 17-A, § 35(3) (defining
recklessness); id. § 207(1)(A) (simple assault); id. § 207-A(1)(A)
(domestic violence assault). Therefore, to sustain a Maine
conviction for this subsumed offense, the defendant need not intend
that physical contact occur nor intend that the contact be
considered offensive.

-35-
does constitute a violation of the Lautenberg Amendment, the

federal convictions at issue here cannot stand.11

11
Despite the foregoing, the majority opinion offhandedly
rejects the relevance of the mens rea for battery under the common
law. See ante, at 16 ("The parties agree that, under Castleman,
the term 'use of physical force' also incorporates the common law
mens rea for battery. . . . They disagree about whether reckless
acts could or could not constitute batteries at common law, and
each side marshals support for its view. We decline the parties'
invitation to define the mens rea of a common law battery . . . .")
(citations omitted). At the same time, the majority cites
Castleman for the proposition that the "use" of physical force
includes offensive contact, due to the common-law meaning of
"force" for purposes of battery. Id. The majority opinion thus
relies on the actus reus for battery under the common law, but
simultaneously rejects the relevance of the accompanying mens rea
for common-law battery. See id. In so doing, the majority fails
to sufficiently justify its decision to "decline" the parties'
"invitation" to consider the import of the mens rea of common-law
battery to the question at bar. Such a decision requires
justification, particularly because the Supreme Court in Castleman
also extended an "invitation" for us to consider this issue when it
explained that Congress intended to classify as a "'misdemeanor
crime of domestic violence' the type of conduct that supports a
common-law battery conviction." See Castleman, 134 S. Ct. at 1411.

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 (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 (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)).

-36-
 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 18 U.S.C. § 922(g)(9) (the "Lautenberg Amendment" or

"§ 922(g)(9)"). Under the Lautenberg Amendment, it is unlawful for

any person "who has been convicted in any court of a misdemeanor

crime of domestic violence, to . . . possess in or affecting

commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(9). For

these purposes, a "misdemeanor crime of domestic violence" is

further defined in 18 U.S.C. § 921(a)(33)(A) as an 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

-37-
 guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim[.]

Id. § 921(a)(33)(A) (emphases added).

2. The Relevant Maine Assault Statutes

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 id. Under Maine law, a defendant is guilty

of "domestic violence assault" if (1) the defendant violates the

Maine simple assault provision, and (2) "the victim is a family or

household member." See Me. Rev. Stat. tit. 17-A, § 207-A(1)(A).

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 § 207(1)(A).

Thus, there are six different, divisible permutations of the Maine

simple assault statute, each of which can form the basis for a

section 207 assault conviction. United States v. Carter, 752 F.3d

8, 17-18 (1st Cir. 2014) ("The Maine general-purpose assault

statute is divisible into six permutations of subsumed offenses,

based on the combination of one element from each of two

categories: (1) mens rea ('intentionally, knowingly or

recklessly'), and (2) actus reus ('causes bodily injury or

offensive physical contact to another person')." (quoting

§ 207(1)(A))). These six subsumed offenses are illustrated in the

following chart:

-38-
 The six variants of the Maine simple assault statute:

Actus Reus
Maine simple
assault statute,
Me. Rev. Stat. tit. . . . causes bodily . . . causes
17-A, § 207(1)(A) injury. offensive physical
contact.
Intentionally 1. Intentionally 4. Intentionally
. . . causes bodily injury. causes offensive
physical contact
Mens Knowingly 2. Knowingly causes 5. Knowingly
Rea . . . bodily injury. causes offensive
physical contact.
Recklessly 3. Recklessly causes 6. Recklessly
. . . bodily injury. 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'

§ 922(g)(9) charges, which are the subject of the instant appeal.

A simple assault statute lacking a domestic-relationship element

(such as Voisine's prior offense of conviction in Maine) can

nonetheless serve as the predicate offense for a misdemeanor crime

of domestic violence, so long as the domestic-relationship element

12
Violation of either provision -- the general assault offense
or "domestic violence assault" -- constitutes a "Class D" crime
under the Maine Criminal Code, which is equivalent to a
misdemeanor. See State v. Allen, 377 A.2d 472, 475 n.4 (Me. 1977)
("We therefore deem Class D and Class E crimes to be the Criminal
Code equivalents of misdemeanors.").

-39-
is proved in the subsequent federal prosecution. See United States

v. Hayes, 555 U.S. 415, 418 (2009) (holding "that the domestic

relationship, although it must be established beyond a reasonable

doubt in a § 922(g)(9) firearms possession prosecution, need not be

a defining element of the predicate offense").

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," 18 U.S.C. § 921(a)(33)(A)) -- the court

determines whether it is appropriate to apply the categorical

approach or the modified categorical approach.

1. The Categorical Approach

In Taylor v. United States, 495 U.S. 575, 600 (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

-40-
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, 133 S.

Ct. 2276, 2281 (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. These documents are often called "Shepard documents," after

-41-
Shepard v. United States, 544 U.S. 13 (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

offenses for the Lautenberg Amendment. See Castleman, 134 S. Ct.

at 1415 ("It is impossible to cause bodily injury without applying

force in the common-law sense," and "the knowing or intentional

application of force is a 'use' of force."). If the Shepard

documents showed that the defendants' prior assault convictions

were for those particular subsumed offenses, for example, then we

would be able to apply the modified categorical approach and affirm

the defendants' Lautenberg Amendment convictions without reaching

the recklessness issue. See Carter, 752 F.3d at 18 n.11 (reasoning

that under the modified categorical approach, if the Shepard

documents showed that the defendant's prior Maine conviction was

for intentional or knowing conduct, then the court could affirm his

conviction under the Lautenberg Amendment). The parties agree,

however, that the Shepard documents for Armstrong's and Voisine's

underlying Maine convictions are inconclusive and do not reveal

which variants of the Maine assault statutes served as the bases

-42-
for their convictions. Therefore, the modified categorical

approach cannot resolve this appeal.

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 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9); see

also Castleman, 134 S. Ct. at 1414. Under the categorical

approach, if any one of the six variants of the Maine assault

statute does not necessarily constitute the "use . . . of physical

force," then the defendants' convictions must be reversed. Put

differently, to affirm the defendants' convictions under the

categorical approach, all of the subsumed offenses under the Maine

statute must have the "use or attempted use of physical force" as

an element. 18 U.S.C. §§ 921(a)(33)(A); see also United States v.

Holloway, 630 F.3d 252, 257 (1st Cir. 2011) (stating that under the

categorical approach, "the [prior] conviction may only serve as a

predicate offense if each of the possible offenses of conviction

would qualify" as individually satisfying the offense in the

subsequent prosecution (citing Shepard, 544 U.S. at 26)). The

defendants focus their argument on the sixth and least severe

subsumed offense: the "reckless" causation of "offensive physical

contact." Therefore, we must apply the governing precedent to

decide whether this statutory definition necessarily involves the

"use . . . of physical force."

-43-
C. The Supreme Court's Decisions in Leocal and Johnson

The Supreme Court's opinions in Leocal v. Ashcroft, 543

U.S. 1 (2004), and Johnson v. United States, 559 U.S. 133 (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 18 U.S.C.

§ 16(a). Under that statute, a "crime of violence" includes "an

offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another." 18 U.S.C. § 16(a) (emphasis added). The petitioner in

Leocal had previously been convicted in Florida state court for

driving under the influence of alcohol (DUI) and causing serious

bodily injury. Leocal, 543 U.S. at 3. The Supreme Court held that

the petitioner's DUI conviction was not a crime of violence under

18 U.S.C. § 16. Id. at 4. In so holding, the Court explained that

"'use' requires active employment," reasoning that "a person would

'use . . . physical force against' another when pushing him . . .

-44-
[but not] by stumbling and falling into him." Id. Giving the

operative phrase in 18 U.S.C. § 16(a) its ordinary and natural

reading, in context, the Leocal Court held that the "'use . . . of

physical force against the person or property of another'" requires

"a higher degree of intent than negligent or merely accidental

conduct." Id. (quoting 18 U.S.C. § 16(a)). The Court also

interpreted parallel language in 18 U.S.C. § 16(b), giving that

language "an identical construction" and "requiring a higher mens

rea than the merely accidental or negligent conduct involved in a

DUI offense." Id. at 11.

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 18 U.S.C. § 16; the Court

did not reach the question whether reckless conduct would be

-45-
sufficient. Id. at 13 ("This case does not present us with the

question whether a state or federal offense that requires proof of

the reckless use of force against a person or property of another

qualifies as a crime of violence under 18 U.S.C. § 16.").

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,' 18 U.S.C.

§ 924(e)(2)(B)(I), and thus constitutes a 'violent felony' under

the Armed Career Criminal Act, § 924(e)(1)." Johnson, 559 U.S. at

135 (alterations in original). The Court observed that "the

element of 'actually and intentionally touching' under Florida's

battery law is satisfied by any intentional physical contact, 'no

matter how slight.'" Id. at 138 (quoting State v. Hearns, 961 So.

2d 211, 218 (Fla. 2007)). Even "[t]he most 'nominal contact,' such

as a 'ta[p] . . . on the shoulder without consent,'" is sufficient

to constitute a violation of the Florida law. Id. (second and

third alterations in original) (quoting Hearns, 961 So. 2d at 219).

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

-46-
felonies. Id. at 138-40. 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. The Johnson Court explicitly limited its

holding to the ACCA, asserting that its decision would not extend

to the Lautenberg Amendment. See id. at 143-44 ("We have

interpreted the phrase 'physical force' only in the context of a

statutory definition of 'violent felony.' We do not decide that

the phrase has the same meaning in the context of defining a

misdemeanor crime of domestic violence. The issue is not before

us, so we do not decide it.").

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

-47-
force may be characterized as power, violence, or pressure directed

against another person's body." Id. at 16. We thus held that

§ 922(g)(9) does not require that the predicate offense involve

"bodily injury," but rather can be satisfied by "any physical

force" -- including offensive physical contact -- "regardless of

whether that force resulted in bodily injury or risk of harm." Id.

at 16-18. Therefore, Nason established that either actus reus

prong of the Maine assault statute -- bodily injury or offensive

physical contact -- could serve as a valid predicate conviction for

purposes of § 922(g)(9). Id. at 21 ("[B]oth [actus reus] variants

of assault regulated under Maine's general-purpose assault statute

necessarily involve the use of physical force.").

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 § 922(g)(9). Id. at 13-14. The

appellants in Booker sought to rely on the Supreme Court's

decisions in Leocal and Johnson, analogizing to the definition of

"crime of violence" under 18 U.S.C. § 16 and the definition of

"violent felony" under the ACCA, 18 U.S.C. § 924(e). Id. at 18-19.

We held that those other statutes were not sufficiently analogous

to dictate the result in Booker, reasoning that, for example,

-48-
"[w]hereas the ACCA seeks to protect society at large from a

diffuse risk of injury or fatality at the hands of armed,

recidivist felons, § 922(g)(9) addresses an acute risk to an

identifiable class of victims -- those in a relationship with a

perpetrator of domestic violence." Id. at 21. We thus turned to

the "plain, unambiguous language of § 922(g)(9)," finding that "the

statutory definition of 'misdemeanor crime of domestic violence'

does not prescribe an intentional mens rea." Id. (quoting 18

U.S.C. § 922(g)(9)). Therefore, we held "that an offense with a

mens rea of recklessness may qualify as a 'misdemeanor crime of

domestic violence' under § 922(g)(9)." Id. (quoting 18 U.S.C.

§ 922(g)(9)).

On the initial appeal in this case, United States v.

Armstrong, 706 F.3d 1, 5 (1st Cir. 2013) ("Armstrong I"), vacated,

134 S. Ct. 1759 (2014), we considered Armstrong's arguments that

the Lautenberg Amendment's prohibition on gun ownership does not

apply to non-violent offensive physical contact. We found the

defendant's argument on this issue to be squarely foreclosed by our

prior decisions in Nason and Booker. Id. at 2 (citing Booker, 644

F.3d 12; Nason, 269 F.3d 10). On that basis, we rejected

Armstrong's statutory interpretation arguments and affirmed the

decision of the district court. Id. at 2-6, 8. That same day, we

issued an opinion in United States v. Voisine, 495 F. App'x 101

(1st Cir. 2013) (per curiam) ("Voisine I"), vacated sub nom.

-49-
Armstrong v. United States, 134 S. Ct. 1759 (2014). In a per

curiam opinion, we stated that Voisine had raised "the exact same

arguments" as those raised in Armstrong I. Id. Because there were

"no pertinent factual differences distinguishing" Voisine I from

Armstrong I, we incorporated Armstrong I's reasoning into the

Voisine I per curiam opinion and affirmed the district court's

decision. Id. at 102. Both defendants appealed our decisions in

to the Supreme Court.

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 18 U.S.C.

§ 921(a)(33)(A)(ii)). The Sixth Circuit affirmed the dismissal of

Castleman's convictions on the § 922(g)(9) counts, holding that the

Tennessee conviction was not a valid predicate offense because

-50-
Castleman might have been convicted for "'caus[ing] a slight,

nonserious physical injury with conduct that cannot be described as

violent.'" See id. at 1409–10 (quoting United States v. Castleman,

695 F.3d 582, 590 (6th Cir. 2012)). The Supreme Court reversed,

reasoning that Castleman had pleaded guilty to intentionally or

knowingly causing bodily injury, which "necessarily involves the

use of physical force." Castleman, 134 S. Ct. at 1414.

The Court explained that "physical force" for purposes of

§ 922(g)(9) encompasses "the common-law meaning of 'force' --

namely, offensive touching." Id. at 1410. The Court explained

that "'[d]omestic violence' is not merely a type of 'violence'; it

is a term of art encompassing acts that one might not characterize

as 'violent' in a nondomestic context" -- acts like slapping,

shoving, pushing, grabbing, hair-pulling, and spitting. Id. at

1411 & n.5.

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

-51-
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.

The Court considered whether it could apply the

"categorical approach" articulated in Taylor, 495 U.S. 575, to

resolve the issue, asking if the elements of the Tennessee statute

necessarily met the requirements of § 922(g)(9). Castleman, 134 S.

Ct. at 1414. If the answer were in the affirmative, then the Court

could conclude that "a domestic assault conviction in Tennessee

categorically constitutes a 'misdemeanor crime of domestic

violence.'" 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 18

U.S.C. § 921(a)(33)(A)). For example, the Court reasoned that

under the Tennessee statute, "[a] threat . . . may not necessarily

involve a deadly weapon, and the merely reckless causation of

bodily injury . . . may not be a 'use' of force." Id. at 1414.

The Court noted that in Leocal it had "reserved the question

whether a reckless application of force could constitute a 'use' of

force," id. at 1414 n.8 (citing Leocal, 543 U.S. 1), but emphasized

that "the Courts of Appeals have almost uniformly held that

-52-
recklessness is not sufficient," id. (contrasting our holding in

Booker, 644 F.3d 12, with the decisions of ten of our sister courts

of appeals: the Second, Third, Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth, and Eleventh Circuits). The Court declined

to hold that a conviction under the Tennessee statute categorically

constitutes a misdemeanor crime of domestic violence for purposes

of § 922(g)(9). See id. at 1414.

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 I, 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.

-53-
 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 further investigation

in connection with his pawning activities revealed Carter's prior

misdemeanor assault conviction. Id. The pawn shop's records

showed that Carter had pawned and redeemed three separate rifles

multiple times between 2007 and 2010. Id. at 11. All of the

rifles were inherited from his father. Id. at 11 n.2. "The

firearms were kept in a locked cabinet at his mother's house, and

-54-
Carter only physically possessed the rifles in connection with

pawning them." Id. Based on the foregoing, Carter was charged in

a one-count indictment for violating the Lautenberg Amendment's

prohibition on gun possession by those convicted of a misdemeanor

crime of domestic violence. Id. at 11. After entering a

conditional guilty plea, reserving his right to appeal, Carter was

sentenced by the district court to be imprisoned for twelve months

and one day -- a downward variance from the bottom of the

Sentencing Guidelines range: eighteen months. Id. at 9, 12. He

then appealed, arguing, among other things, that the commission of

simple assault by recklessly causing offensive physical contact

does not constitute the "use . . . of physical force" as required

to establish a misdemeanor crime of domestic violence under the

Lautenberg Amendment. Id. at 10.

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

-55-
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. Rodríguez–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. We thus observed that under Castleman, "the

validity of Carter's § 922(g)(9) conviction may depend on which

mens-rea prong of the Maine general-purpose assault statute served

as the basis for his guilty plea and conviction." Id. at 18.

Examining the record for Shepard documents that could determine

which variant of the Maine assault statute was the basis for

Carter's conviction, we found the record incomplete and

undeveloped: it was unclear whether such documents existed. See

id. at 20-21 ("It is not clear . . . whether there are any other

'approved' Shepard documents or comparable judicial records

-56-
available with respect to Carter's prior assault conviction. . . .

[T]he record is insufficiently developed to determine which variant

of the Maine general-purpose assault statute served as the basis

for Carter's conviction."). Accordingly, we "remand[ed] the case

to the district court to allow the parties to further develop the

record on this issue," consistent with the Supreme Court's opinion

in Castleman. Id. at 21. In so doing, we reserved the question

presented by the Supreme Court's vacatur of Armstrong I and Voisine

I in light of Castleman, allowing us to squarely address that issue

in the instant remand.

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.

-57-
 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

-58-
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 was nothing more serious than that.'" Id.

at *7. Accordingly, on the basis of all the Shepard documents, the

district court was "unable to identify the offense of Carter's

conviction." Id.

The district court cited Hines, including the statement

that "'[i]t is a short logical step to conclude that the reason the

-59-
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."

-60-
Id. at *1 (citing Vt. Stat. Ann. tit. 13, § 1023). In that plea

colloquy, the Vermont Superior Court judge explained that Sales

"recklessly caused bodily injury to a person, and that it was in a

fight or scuffle entered into by mutual consent." Id. The judge

further explained that "there was a physical altercation between

[Sales] and [his girlfriend] . . . and that in the course of it

[he] at least recklessly . . . caused bodily injury to her, being

. . . a scratch or a sort of cut that she received." Id.

Explaining the actus reus of bodily injury, the judge stated that

"[b]odily injury is any sort of injury, it doesn't have to be a

broken bone or anything like that, it can be a bruise, a cut, kind

of anything that hurts." Id. With respect to the mens rea, the

judge explained that "[r]ecklessly means you did not have to intend

a particular result, but you engaged in conduct that was not what

a reasonable person would do in these circumstances, and had a very

high risk that the result would happen." Id. Subsequent to this

assault conviction in Vermont state court, Sales was charged with

a violation of the Lautenberg Amendment in federal district court

in Maine. Id. at *2.

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

-61-
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 crime of domestic violence." Id. The district

court agreed with Chief Judge Woodcock that "'[r]eading Supreme

Court tea leaves is chancy,'" id. at *4 (quoting Hines, 2014 WL

1875164 at *8), but concluded that "it is hard to miss the message

here," id. The court observed that the First Circuit may yet

"decide that recklessness is sufficient," but that it would be

"presumptuous" for the district court "to make that determination."

Id. Therefore, the district court dismissed the defendant's

indictment. Id.

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 Me. Rev.

Stat. tit. 17-A, § 207, with 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).

As a matter of statutory interpretation, we need to compare the

-62-
text of each side of the equation: (a) the definition of the

"reckless" causation of "offensive physical conduct" under the

Maine assault statutes; and (b) the definition of the "use . . . of

physical force" under the federal Lautenberg Amendment. The former

inquiry is a question of Maine state law, while the latter is a

question of federal law. Applying the relevant precedent, this

discussion concludes that the reckless causation of offensive

physical contact in Maine does not necessarily constitute the "use"

of physical force and thus is not categorically a "misdemeanor

crime of domestic violence" under the Lautenberg Amendment.

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." Me. Rev. Stat.

tit. 17-A, § 35(3)(A). Additionally, "the 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." Id.

§ 35(3)(C).

The majority opinion describes this definition of

"recklessness" as involving "a substantial amount of deliberateness

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and intent." Ante, at 18. 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 18-19. 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. Model Penal Code § 2.02(2)(c) ("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

-64-
standard of conduct that a law-abiding person would observe in the

actor's situation."). This Model Penal Code definition contains

all of the elements and precise language highlighted by the

majority as supposedly establishing "a substantial amount of

deliberateness and intent." Cf. ante, at 18-19 ("consciously"

disregards, "nature and purpose of the person's conduct and the

circumstances known to [him]," and "gross deviation" from the

standard of care) (emphases supplied by the majority).

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 Definition
Jurisdiction
Model Penal "Recklessly. A person acts recklessly with respect to
Code a material element of an offense when he consciously
§ 2.02(2)(c) disregards a substantial and unjustifiable risk that the
(emphases material element exists or will result from his conduct.
added) 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 "reckless, adj. . . . Characterized by the creation of
Dictionary a substantial and unjustifiable risk of harm to others
1462 (10th and by a conscious (and sometimes deliberate) disregard
ed. 2014) for or indifference to that risk; heedless; rash.
(emphases • Reckless conduct is much more than mere negligence: it
added) is a gross deviation from what a reasonable person would
do. See recklessness. . . . Cf. careless; wanton
. . . ."

-65-
Black's Law "recklessness, n. . . . 1. Conduct whereby the actor
Dictionary does not desire harmful consequence but nonetheless
1462 (10th foresees the possibility and consciously takes the risk.
ed. 2014) • Recklessness involves a greater degree of fault than
(emphasis negligence but a lesser degree of fault than intentional
added) 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." Me. Rev. Stat. tit.
17-A, § 35(3)(emphases added) (subsections defining
"recklessly" under the Maine Criminal Code section
setting out "Definitions of culpable states of mind");
see also Stein v. Me. Criminal Justice Acad., 95 A.3d
612, 618 (Me. 2014) (applying the foregoing statutory
definitions of "recklessly" to the Maine general-purpose
assault statute, § 207(1)(A)).

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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." N.H. Rev. Stat. § 626:2 (II)(c)
(emphases added).

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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." P.R. Laws Ann. tit. 33,
§ 5035 (2012) (unofficial translation supplied).

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." 2014 P.R. Laws No. 246, art. 12
(enacting S.B. 1210, and modifying art. 22(3) of Law
146-2012) (unofficial translation supplied).13

13
The situation in Puerto Rico merits some further
explanation. Historically, under Puerto Rico's Penal Code, there
were two culpable mental states: "intent" and "negligence." See
P.R. Laws Ann. tit. 33, §§ 4650-4652 (2004). The definition of
"intent" included three variants, generally corresponding to the
concepts of "purposeful," "knowing," and "reckless" conduct under
the Model Penal Code. See id. § 4651; see also Dora Neváres-Muñiz,
Recodification of Criminal Law in a Mixed Jurisdiction: The Case of
Puerto Rico, 12.1 Elec. J. Comp. L. 16 (May 2008), available at
http://www.ejcl.org/121/art121-14.pdf. In the 2012 version of the
Puerto Rico Penal Code, the third definition of "intent" covered
reckless conduct: "when the actor has foreseen or is conscious that
there exists a high probability that his conduct will produce the
criminal act." P.R. Laws Ann. tit. 33, § 5035 (2012) (unofficial
translation supplied).

In 2014, a new law was proposed, passed by both the Puerto Rico
Senate and the House of Representatives, and sent to the Governor
for his approval. See S.B. 1210 (P.R. 2014). That law was signed
and approved on December 26, 2014, and it takes effect on March 26,
2015. See 2014 P.R. Laws No. 246. Article 12 of the new law
eliminates the old culpable mental states (intent and negligence)
and explicitly replaces them with the four mental states in the
Model Penal Code: purposely, knowingly, recklessly, and
negligently. Compare id. art. 12 (modifying art. 22 of Law No.
146-2012), with Model Penal Code § 2.02(2); see also P.R. House of
Representatives, P. del S. 1210 Informe Positivo 9 (Nov. 13, 2014),
http://www.tucamarapr.org/dnncamara/Documents/Measures/9fda6cce-8
8d9-4e39-a6ae-0dc163f421dc.pdf.

-68-
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., Ariz. Rev. Stat.

§ 13-105 ("'Recklessly' means, with respect to a result or to a

circumstance described by a statute defining an offense, that a

person is aware of and consciously disregards a substantial and

unjustifiable risk that the result will occur or that the

circumstance exists. The risk must be of such nature and degree

that disregard of such risk constitutes a gross deviation from the

standard of conduct that a reasonable person would observe in the

situation. . . .") (emphases added); N.Y. Penal Law § 15.05(3) ("A

person acts recklessly with respect to a result or to a

-69-
circumstance described by a statute defining an offense when he is

aware of and consciously disregards a substantial and unjustifiable

risk that such result will occur or that such circumstance exists.

The risk must be of such nature and degree that disregard thereof

constitutes a gross deviation from the standard of conduct that a

reasonable person would observe in the situation.") (emphases

added). Thus, the Maine definition of "recklessness" is far from

extraordinary, but rather embraces the standard, generally accepted

definition of the term.

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 19. 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. 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

-70-
"knowingly" and "recklessly." See Fernández–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 19 (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 Me. Rev. Stat. tit. 17-A, § 35(3)(A) ("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."), with id. § 35(4)(A)

("A person acts with criminal negligence with respect to a result

of the person's conduct when the person fails to be aware of a risk

that the person's conduct will cause such a result."). Therefore,

I find the attempt by the government and the majority to establish

that "reckless" conduct in Maine is akin to knowing, willful, or

-71-
intentional conduct, or involves a "a substantial amount of

deliberateness and intent," to be unavailing.

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] be effected by

indirect touchings (e.g., the touching of items intimately

connected to the body, such as clothing or a cane, customarily

regarded as part and parcel of an individual's 'person')." Nason,

269 F.3d at 19 (citing State v. Rembert, 658 A.2d 656, 658 (Me.

1995)).

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

-72-
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 Me. Rev. Stat. tit. 17-A,

§ 35(3)(A); Nason, 269 F.3d at 19; Pettengill, 682 F. Supp. 2d at

56; Pozzuoli, 693 A.2d at 747. Moreover, the disregard of that

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."

Me. Rev. Stat. tit. 17-A, § 35(3)(C).

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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 § 922(g)(9), by the

degree of force that supports a common-law battery conviction" --

including an offensive touching. Id. at 1413.

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 battery conviction under the common

law. See, e.g., Freed, 401 U.S. at 607-08 ("'(W)here Congress

borrows terms of art in which are accumulated the legal tradition

and meaning of centuries of practice, it presumably knows and

-74-
adopts the cluster of ideas that were attached to each borrowed

word in the body of learning from which it was taken and the

meaning its use will convey to the judicial mind unless otherwise

instructed.'" (alteration in original) (quoting Morissette v.

United States, 342 U.S. 246, 263 (1952))); see also Sekhar v.

United States, 133 S. Ct. 2720, 2724 (2013) ("It is a settled

principle of interpretation that, absent other indication,

'Congress intends to incorporate the well-settled meaning of the

common-law terms it uses.'" (quoting Neder v. United States, 527

U.S. 1, 23 (1999))). Thus, as urged by both parties here and as

suggested by the Supreme Court in Castleman, I turn to examine the

culpable mental states that attach to the common-law crime of

battery. See Castleman, 134 S. Ct. at 1410-11.

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 (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 (1995) (defining the word "use"

for purposes of the pre-1998 text of 18 U.S.C. § 924(c) -- which

had provided certain penalties if the defendant "uses or carries a

-75-
firearm" during a crime of violence -- and holding that such "use"

required "active employment" and not "mere possession of a

firearm"), superseded by statute, Bailey Fix Act, Pub. L. No. 105-

386, 112 Stat. 3469 (1998), as recognized in Abbott v. United

States, 562 U.S. 8 (2010); Rembert, 658 A.2d at 658 (stating that

"[u]npermitted and intentional contacts . . . [are] actionable as

an offensive contact"); Lynch v. Commonwealth, 131 Va. 762, 109

S.E. 427, 428 (Va. 1921) ("To constitute battery there must be some

touching of the person of another, but not every such touching will

amount to the offense. Whether it does or not will depend, not

upon the amount of force applied, but upon the intent of the

actor."); id. at 428 (reasoning that when a man placed his hand on

a woman's shoulder after she already rejected his romantic

advances, the evidence was sufficient to justify a verdict of guilt

for battery due to the defendant's "willful violation of the

sanctity of her person" (emphasis added)); Black's Law Dictionary

182 (10th ed. 2014) (defining tortious battery as a "nonconsensual,

intentional, and offensive touching of another without lawful

justification").

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,

-76-
e.g., Model Penal Code § 211.1(1)(a) ("A person is guilty of

assault if he . . . attempts to cause or purposely, knowingly or

recklessly causes bodily injury to another . . . ."); Wayne R.

LaFave, 2 Substantive Criminal Law § 16.2(a) (2d ed.) ("The modern

approach, as reflected in the Model Penal Code, is to limit battery

to instances of physical injury and cover unwanted sexual advances

by other statutes."); id. § 16.2(c)(2) n.32 ("[W]ith the tort of

battery an intention to injure or touch offensively is needed");

see also Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863

(1893) (stating that "the intent necessary to constitute" an

offense of assault and battery is the "intentional doing of an

action which, by reason of its wanton or grossly negligent

character, exposes another to personal injury, and causes such an

injury," without saying anything regarding whether such an offense

could be committed by causing offensive physical contact).

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

-77-
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." Id. § 16.2(a). Furthermore, the

treatise explains that the Model Penal Code's assault provision

"covers only causing 'bodily injury,' on the ground that 'offensive

touching is not sufficiently serious to be made criminal, except in

the case of sexual assaults as provided' elsewhere in the Code."

Id. § 16.2(a) n.6 (quoting Model Penal Code § 211.1 cmt. at 185

(1980)). Given the foregoing, there is no justification for the

majority's heavy reliance on the legislative history of the

Lautenberg Amendment. See, e.g., Rubin v. United States, 449 U.S.

424, 430 (1981) ("When we find the terms of a statute unambiguous,

judicial inquiry is complete, except 'in rare and exceptional

circumstances.'" (quoting Tenn. Valley Auth. v. Hill, 437 U.S.

153, 187 n.33 (1978)) (internal quotation marks and citation

omitted)).

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 18 U.S.C. § 113(a)(5). Bayes, 210 F.3d at 65. The

-78-
factual basis for the offense was that the defendant, Christopher

Bayes, while on a Delta Airlines flight from Atlanta to England,

"'put his hand on [a flight attendant's] buttocks and rubbed [her]

buttocks and grabbed at the bottom of [her] buttocks,'" which a

nearby passenger described as Bayes "'reaching behind the flight

attendant and grabbing her in the rear end'" and "'squeezing.'"

Id. at 66 (second and third alterations in original) (quoting trial

testimony). "Bayes persisted in being unruly despite periodic

warnings from members of the crew." Id. "A scuffle ensued, ending

only after the captain dumped thousands of gallons of fuel,

diverted the aircraft in mid-flight, and made an unscheduled

landing [in Maine] so that Bayes could be taken off the

plane. . . ." Id.

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 buttocks." Id. at 67. Because the statute

in question, § 113(a)(5), criminalized "[s]imple assault" but did

"not define that term in any way," we "turn[ed] to the common law

for additional guidance." Id. at 67-68. We stated that "the

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

-79-
without a valid reason to do so." Id. at 69 (emphasis added). We

reviewed prior opinions and determined that they "support the

conclusion that, in a prosecution for simple assault under

§ 113(a)(5), it is sufficient to show that the defendant

deliberately touched another in a patently offensive manner without

justification or excuse." Id. (emphases added). Therefore, we

held that the evidence supported Bayes's conviction because "the

jury was entitled to conclude that Bayes had groped [the flight

attendant] in a way that could not have been accidental, that must

have been deliberate, and that was patently offensive." Id.

(emphases added).

The preceding language from Bayes reveals that the mens

rea required for a § 113(a)(5) battery-by-offensive-touching

conviction is intent and not mere recklessness: the defendant must

"deliberately" (and not accidentally) touch the victim in a

"deliberately offensive" manner. See id. By contrast, under the

Maine assault statutes, a defendant can commit the offense

recklessly by merely disregarding (a) the risk that his conduct

will cause physical contact (more than a mere touching) to occur,

and (b) the risk that a reasonable person would find that physical

contact to be offensive. See Me. Rev. Stat. tit. 17-A, § 35(3)(A).

The "deliberate" intent that we required in Bayes is thus not

necessary for a conviction for recklessly committed assault or

domestic-violence assault in Maine.

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 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

-81-
1414 n.8 (quoting Leocal, 543 U.S. at 9). 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 listed as the only outlier.14 Together, as

explained in more detail below, these cases establish that a

predicate "crime of violence" under 18 U.S.C. § 16 and analogous

provisions must be committed with a degree of intentionality

greater than recklessness. Although § 16 is a different federal

statute, its language is substantially similar to the definition of

a misdemeanor crime of domestic violence for purposes of the

Lautenberg Amendment. In particular, the definition in § 16(a) is

nearly identical to the equivalent definition for § 922(g)(9).

Compare 18 U.S.C. § 16(a) (defining the term "crime of violence" to

mean "an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

14
Id. To illustrate contrast with our holding in United
States v. Booker, 644 F.3d 12, 19–20 (1st Cir. 2011), the Supreme
Court cited the following circuit court decisions in Castleman's
Footnote Eight: United States v. Palomino García, 606 F.3d 1317,
1335–36 (11th Cir. 2010); Jiménez–González v. Mukasey, 548 F.3d
557, 560 (7th Cir. 2008); United States v. Zúñiga–Soto, 527 F.3d
1110, 1124 (10th Cir. 2008); United States v. Torres–Villalobos,
487 F.3d 607, 615–16 (8th Cir. 2007); United States v. Portela, 469
F.3d 496, 499 (6th Cir. 2006); Fernández–Ruiz v. Gonzales, 466 F.3d
1121, 1127–32 (9th Cir. 2006) (en banc); García v. Gonzales, 455
F.3d 465, 468–69 (4th Cir. 2006); Oyebanji v. Gonzales, 418 F.3d
260, 263–65 (3d Cir. 2005); Jobson v. Ashcroft, 326 F.3d 367, 373
(2d Cir. 2003); United States v. Chapa–Garza, 243 F.3d 921, 926
(5th Cir. 2001).

-82-
another"), with 18 U.S.C. § 921(a)(33)(A) (defining a "misdemeanor

crime of domestic violence" as an misdemeanor offense that "has, as

an element, the use or attempted use of physical force"). Keeping

the similarity of the analogous statutes in mind, I review below

each case cited by the Supreme Court in Castleman's Footnote Eight.

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 18 U.S.C. § 16(b). A "crime of violence" is defined

in § 16(b) as "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." 18 U.S.C. § 16(b).15 The Second Circuit

15
Given that § 16(b)'s definition includes offenses that
merely "involve[] a substantial risk that physical force . . . may
be used," id. (emphasis added), its language is far more
susceptible to a reading that it encompasses reckless conduct than
is the equivalent language for § 16(a) and § 922(g)(9), which both
require the "use" or "attempted use" of "physical force." See
supra n.2; see also 18 U.S.C. § 16(a); id. § 922(g)(9); id.
§ 921(a)(33)(A); Me. Rev. Stat. tit. 17-A, § 35(3) ("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. . . ."); Model Penal Code § 2.02(2)(c)
("A person acts recklessly . . . when he consciously disregards a
substantial and unjustifiable risk that the material element exists
or will result from his conduct."). Therefore, the cases holding
that reckless conduct is insufficient to support a subsequent
§ 16(b) conviction provide even stronger support for the
defendants' position than do the cases involving § 16(a). Cf.
García, 455 F.3d at 468 (reasoning that the "use" of "physical
force" requires the intentional employment of physical force, and

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reiterated its previous holding that "the verb 'use' in section

16(b), particularly when modified by the phrase 'in the course of

committing the offense,' suggests that section 16(b) 'contemplates

only intentional conduct and refers only to those offenses in which

there is a substantial likelihood that the perpetrator will

intentionally employ physical force.'" Jobson, 326 F.3d at 373

(internal quotation marks omitted) (quoting Dalton v. Ashcroft, 257

F.3d 200, 208 (2d Cir. 2001)).

To satisfy § 16(b)'s definition of "crime of violence,"

therefore, a defendant must have risked having to intentionally use

force to commit the offense. Id. at 374; see also id. at 373

("[T]he risk in section 16(b) concerns the defendant's likely use

of violent force as a means to an end."). "By contrast, a

defendant who is convicted of second-degree manslaughter, like

other offenses of pure recklessness, may lack any 'intent, desire

or willingness to use force or cause harm at all.'" Id. at 374

(quoting United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992),

abrogated on other grounds by Begay v. United States, 553 U.S. 137

(2008)). Accordingly, the Second Circuit concluded that second-

degree manslaughter in New York is not a crime a violence under

therefore holding that a New York second-degree reckless assault
conviction "does not contain an element that there be the
intentional employment of physical force against a person or thing,
and thus is beyond the scope of 18 U.S.C. § 16(a)").

-84-
§ 16(b) and thus is not an aggravated felony justifying removal

under the immigration laws. Id. at 376.

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 § 16(b). The petitioner's underlying

conviction was for vehicular homicide under New Jersey law, which

requires proof of recklessness. Id. The Third Circuit thus stated

that it was "required to decide the very question that the Leocal

Court did not reach" -- "'whether a state or federal offense that

requires proof of the reckless use of force against a person or

property of another qualifies as a crime of violence under 18

U.S.C. § 16.'" Id. (quoting Leocal, 543 U.S. at 13).

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

-85-
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 18 U.S.C. § 16. Id. at 468. The predicate offense

considered in García was reckless assault in the second degree

under New York law, which provides that "'[a] person is guilty of

assault in the second degree when . . . (4) He recklessly causes

serious physical injury to another person by means of a deadly

weapon or a dangerous instrument.'" Id. (alterations in original)

(quoting N.Y. Penal Law § 120.05). The Fourth Circuit summarily

determined that the first definition of "a crime of violence" under

§ 16(a) -- "an offense that has as an element the use, attempted

use, or threatened use of physical force against the person or

property of another" -- did not apply to the New York second-degree

reckless assault conviction. Id. at 468 (quoting 18 U.S.C.

-86-
§ 16(a)). The court reasoned that the definition of the New York

offense "does not contain an element that there be the intentional

employment of physical force against a person or thing, and thus is

beyond the scope of 18 U.S.C. § 16(a)." Id. (emphasis added).

Therefore, according to the Fourth Circuit, "the use . . . of

physical force" requires the intentional employment of physical

force. See id.

Turning to the definition in § 16(b), the Fourth Circuit

held that "recklessness, like negligence, is not enough to support

a determination that a crime is a 'crime of violence.'" Id. at

469. In making this determination, the Fourth Circuit held that in

order to satisfy § 16(b)'s requirement that the predicate offense

"involve a substantial risk that physical force against the person

or property of another may be used," the force must "be applied as

a means to an end." Id. (quoting Bejarano-Urrutia v. Gonzales, 413

F.3d 444, 447 (4th Cir. 2005)) (internal quotation marks omitted);

see also id. ("[W]e are of opinion that 18 U.S.C. § 16(b) requires

that the substantial risk involved be a substantial risk that force

will be employed as a means to an end in the commission of the

crime, not merely that reckless conduct could result in injury.").

d. Fifth Circuit

The Fifth Circuit considered the definition of "crime of

violence" under 18 U.S.C. § 16(b) in United States v. Chapa–Garza,

243 F.3d 921 (5th Cir. 2001). In that case, the Fifth Circuit

-87-
reasoned that § 16(b) requires that "the offender intentionally use

the force against the person or property of another." Id. at 927.

Because "[i]ntentional force against another's person or property

is virtually never employed to commit" the offense of felony

driving while intoxicated ("DWI") in Texas, the court held that

"felony DWI is not a crime of violence as defined by 18 U.S.C.

§ 16(b)." Id.

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 18 U.S.C. § 16," nor, because it "uses

identical language," under U.S. Sentencing Guidelines Manual

(U.S.S.G.) § 2L1.2(b)(1).

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

-88-
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 involve non-purposeful conduct. See id. at

561-62.

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 § 16." United States v. Torres–Villalobos, 487

F.3d 607, 615 (8th Cir. 2007). Examining Minnesota law, the Eighth

Circuit determined that "a person can commit second-degree

manslaughter without using force or risking the intentional use of

force," because the crime can be committed recklessly. Id. at 616.

Giving examples, the court explained that:

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

-89-
the Minnesota second-degree manslaughter offense is not a crime of

violence under § 16(a). Id. Turning to § 16(b), the court also

held that second-degree manslaughter under Minnesota law does not

"involve a risk that the perpetrator will intentionally use

physical force in the course of committing the offense." Id. at

616-17. Because Minnesota second-degree manslaughter can be

committed recklessly without the intentional use of force or

risking the intentional use of force, the Eighth Circuit held that

it is not a crime of violence under § 16. Id. at 617.

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

§ 16(a) because that federal statute "covers only those crimes

involving intentional conduct," and thus the merely reckless use of

force (as covered by the Arizona statute) was insufficient to

establish a violation. See also id. ("Because the relevant Arizona

statute permits conviction when a defendant recklessly but

unintentionally causes physical injury to another, and because the

petitioner's documents of conviction do not prove he intentionally

used force against another, we conclude the federal statute does

not apply."). In so holding, the court "agree[d] with [its] sister

circuits that the reasoning of Leocal -- which merely holds that

using force negligently or less is not a crime of violence --

-90-
extends to crimes involving the reckless use of force." Id. at

1129. The Ninth Circuit reasoned that Leocal emphasized that

crimes of violence cannot be "'accidental.'" Id. (quoting Leocal,

543 U.S. at 9). The court defined "accidental" as "'[n]ot having

occurred as a result of anyone's purposeful act,'" and it defined

"purposeful" as "'[d]one with a specific purpose in mind.'" Id. at

1129-30 (alterations in original) (citing Black's Law Dictionary

16, 1298 (8th ed. 2004)). The Ninth Circuit further concluded that

"[r]eckless conduct, as generally defined, is not purposeful." Id.

at 1130.

"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 a person is aware of and consciously disregards a

substantial and unjustifiable risk that the result will occur or

that the circumstance exists." Ariz. Rev. Stat. Ann. § 13-105

(10)(c). That "risk must be of such nature and degree that

disregard of such risk constitutes a gross deviation from the

standard of conduct that a reasonable person would observe in the

situation." Id. This definition of recklessness is substantially

similar to the equivalent Maine definition, as well as the other

definitions outlined in the chart in Part II(A)(1), supra. For

purposes of § 16, the Ninth Circuit saw no important differences

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between negligence and recklessness, considering each mens rea to

constitute the type of non-purposeful conduct that Leocal held was

insufficient to establish a crime of violence involving the "use"

of force. Fernández-Ruiz, 466 F.3d at 1129-30. The court reasoned

that the "plain meaning" of the word "use" denotes that "physical

force is instrumental to carrying out the crime." Id. By

contrast, the "subjective awareness" of risk that characterizes a

reckless act "is not the same as the intentional use of physical

force against the person of another." Id. The court further

explained that "[t]he bedrock principle of Leocal is that to

constitute a federal crime of violence an offense must involve the

intentional use of force against the person or property of

another." Id. at 1132. Therefore, the Ninth Circuit concluded

that recklessness is not "a sufficient mens rea to establish that

a conviction is for a crime of violence under § 16." Id. at 1130.

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

-92-
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." Tex. Penal Code

Ann. § 22.01(a)(1). On appeal to the Tenth Circuit, the appellant

argued that "his prior conviction did not have as an element the

use of physical force because the Texas assault statute's mens rea

component could be satisfied by recklessness." Zúñiga-Soto, 527

F.3d at 1115. The Tenth Circuit agreed, citing Leocal, its own

precedent, and "the persuasive reasoning of [its] sister circuits."

Id. at 1113, 1123.

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

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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 conviction "predicated on

the reckless causation of physical injury does not qualify as a

crime of violence under [U.S.S.G.] § 2L1.2." Id.

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 "has, as an element, the use or
domestic violence," attempted use of physical force"
Lautenberg Amendment, 18 U.S.C. § 921(a)(33)(A)
18 U.S.C. § 922(g)(9)

"crime of violence," "has as an element the use, attempted
18 U.S.C. § 16(a) use, or threatened use of physical
force against the person or property
of another"
18 U.S.C. § 16(a)

-94-
"crime of violence," "any other offense that is a felony
18 U.S.C. § 16(b) 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"
18 U.S.C. § 16(b)
"[c]rime of violence," "[an] offense . . . that has as an
U.S.S.G. § 2L1.2 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 "has as an element the use, attempted
the ACCA, 18 U.S.C. use, or threatened use of physical
§ 924(e)(1) force against the person of another"
18 U.S.C. § 924(e)(2)(B)(I)

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 Moreover, I do not

16
The majority claims that § 16(a) is "not analogous" to
§ 922(g)(9). Ante, at 12. I disagree, given that these two
provisions contain nearly identical language. Section 16(a)
defines a "crime of violence," whereas § 922(g)(9) involves a
"misdemeanor crime of domestic violence." The relevant definition
for § 922(g)(9) is an offense that "has, as an element, the use or
attempted use of physical force." 18 U.S.C. § 921(a)(33)(A). The
definition under § 16(a) is materially indistinguishable: an
offense that "has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another." Id. § 16(a). This definition differs only in the
addition of the "threatened use" of physical force as an
alternative, and the explanation that the force be used "against
the person or property of another." The former difference (the
inclusion of "threatened use") is neither implicated in the current
case nor in any of the analogous precedents referenced herein. The
latter change appears to be largely a distinction without a
difference, as it is difficult to contemplate how or why the "use
of physical force" for purposes of § 922(g)(9) would mean force
used in any way other than "against the person or property of
another."

-95-
doubt that the Supreme Court was well aware that the cases it cited

in Castleman's Footnote Eight involved different provisions, yet

the Court nonetheless contrasted the holdings of our sister

circuits in those cases with our holding in Booker before remanding

the instant cases to us for reconsideration in light of Castleman.

See Castleman, 134 S. Ct. at 1414 n.8. Thus, to the Supreme Court,

these cases and provisions were sufficiently analogous to justify

the instant remand. Cf. Smith, 544 U.S. at 233 ("[W]hen Congress

uses the same language in two statutes having similar purposes,

particularly when one is enacted shortly after the other, it is

appropriate to presume that Congress intended that text to have the

same meaning in both statutes."); Northcross v. Bd. of Educ. of

Memphis City Sch., 412 U.S. 427, 428 (1973) (per curiam) (stating

that "[t]he similarity of language" in two statutory provisions

sharing "a common raison d'etre" constitutes "a strong indication

that the two statutes should be interpreted pari passu"). The

government and the majority fail to persuasively establish that the

meaning of "the use . . . of physical force" in these various

federal definitions of a "crime of violence" should be so similar

in every other context, yet so different as to be outcome-

determinative in the instant context. For those reasons, I find

the foregoing precedent more persuasive than the majority opinion

here. I thus agree with our sister circuits that the "use . . . of

physical force" for a "crime of violence" requires the intentional,

-96-
and not merely reckless, employment of physical force. I find this

conclusion to be particularly true for the subsumed offense at

issue in the instant case: the combination of a mens rea of

"recklessness" with an actus reus of "offensive physical contact."

Cf. Nason, 269 F.3d at 19 (stating that the mens rea requirement is

one of two factors that "distinguish mere touchings from offensive

physical contacts").

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.

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 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

counsels that we answer this inquiry in the negative and resolve

this appeal in favor of the defendants. I conclude that the

particular subsumed Maine offense at issue here, the reckless

causation of offensive physical contact, does not necessarily

require the "use . . . of physical force" and thus does not

categorically constitute a misdemeanor crime of domestic violence

under the Lautenberg Amendment.

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.

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