United States v. Armstrong

United States Court of Appeals
For the First Circuit

No. 12-1216

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM E. ARMSTRONG, III,

Defendant, Appellant.

APPEAL 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, on brief for
appellant.
Thomas E. Delahanty II, United States Attorney, with whom
Renée M. Bunker, Assistant United States Attorney, on brief for
appellee.

January 18, 2013
 TORRUELLA, Circuit Judge. Defendant-Appellant William E.

Armstrong, III ("Appellant" or "Armstrong") asks us to reconsider

arguments heard in and decided by this court regarding: (1) whether

18 U.S.C. § 922(g)(9) should be construed to exclude a purportedly

non-violent offensive physical contact misdemeanor conviction as a

predicate offense; and (2) whether applying § 922(g)(9) to such a

prior conviction would violate a particular defendant's Second

Amendment rights. Since Circuit precedent in United States v.

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

269 F.3d 10 (1st Cir. 2001), forecloses the arguments made here, we

affirm the district court's denial of Armstrong's motion to dismiss

the indictment.

I. Factual and Procedural Background

Armstrong was charged with one count of possessing

firearms and ammunition after having been convicted of a

misdemeanor crime of domestic violence in contravention of 18

U.S.C. § 922(g)(9). As a predicate offense to the charge, the

indictment listed a 2008 misdemeanor conviction for Armstrong's

assault of his wife in violation of Maine's simple assault statute.

Prior to that conviction, Armstrong had been convicted of two

simple assaults: in 1992 and 2002. The 2002 and 2008 convictions

were for domestic assaults against his wife, Rosanna Armstrong.

The 2008 assault was described by the district court as

follows. Armstrong's wife called the police on or about

-2-
December 29, 2008, after, as she described to them, she and her

husband had gotten in an argument about baking cookies, and

Armstrong pushed her. She pushed him back, and the situation

escalated until Armstrong hit her "hard." Armstrong was charged

and convicted of domestic violence assault under Maine's simple

assault statute for "intentionally, knowingly or recklessly

caus[ing] bodily injury or offensive physical contact to Rosanna

Armstrong."

On May 11, 2010, the Maine State Police conducted a

search under warrant of the Armstrong residence for drug

paraphernalia and/or marijuana possession. During this search, the

police discovered six firearms and a large amount of ammunition.

Since the items were not within the scope of the warrant, the

police called the Bureau of Alcohol, Tobacco & Firearms ("ATF") to

inform it that Armstrong was a prohibited person and had firearms

in his residence. Officers also notified Armstrong that he could

not have firearms in his home. Armstrong's wife then called a

family friend who came and removed the firearms and brought them to

his residence, where he had possession of an SKS rifle that also

belonged to Armstrong at the time the original search warrant was

executed.

On May 19, 2010, the ATF executed a federal warrant at

the Armstrong residence, and while the officers did not find any

firearms, they recovered over 1,300 rounds of various types of

-3-
ammunition. The officers requested that Armstrong appear at the

sheriff's office, and Armstrong explained there that he was told to

remove the firearms from his home and that his wife had called his

friend, who took the guns away. Armstrong then took the officers

to his friend's residence, where the ATF agents observed the six

firearms noted by the Maine State Police as well as the SKS rifle.

Armstrong was arrested and charged with one count of

violating § 922(g)(9). In a pre-trial motion to dismiss the

indictment, Armstrong challenged the indicted charge on the grounds

that it did not state a federal offense and that, as applied to a

conviction for a non-violent misdemeanor offense, it violated his

Second Amendment right to keep and bear arms. The district court

summarily denied Armstrong's motion, and Armstrong entered a guilty

plea conditioned on his right to appeal the denial of the motion to

dismiss. After a plea hearing, Armstrong's plea was accepted, and

he was sentenced to three years' probation, a $2,500 fine and a

$100 special assessment. He timely appealed.

II. Discussion

A. Maine Assault Conviction as Proper Predicate Offense

Appellant's argument turns on an interpretation of the

statutory text of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). As

such, it presents a question of law that we review de novo.

Booker, 644 F.3d at 17, 22.

-4-
 Pursuant to 18 U.S.C. § 922(g)(9), or the Lautenberg

Amendment to the Gun Control Act of 1968 ("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." A "misdemeanor

crime of domestic violence" for purposes of § 922(g)(9) has the

meaning given the term in § 921(a)(33)(A), namely, an offense that:

(i) is a misdemeanor under . . . State . . .
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 a
victim, by a person with whom the victim
shares a child in common, by a person who is
cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by
a person similarly situated to a spouse,
parent, or guardian of the victim[.]

Armstrong's predicate offense was a misdemeanor domestic

violence assault conviction under Maine statute, Me. Rev. Stat.

Ann. tit. 17-A, § 207-A(1)(A). That statute provides that "[a]

person is guilty of domestic violence assault if [that person]

violates section 207 and the victim is a family or household

member." Section 207, in turn, provides that "[a] person is guilty

of assault if [that person] intentionally, knowingly or recklessly

causes bodily injury or offensive physical contact to another

person." Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A). The charging

document in this case did not specify whether the nature of the

-5-
predicate assault fell under the "bodily injury" or "offensive

physical contact" prong of the Maine statute.

In United States v. Nason, this court was asked to

examine whether "offensive physical contact" under Maine's assault

statute -- the very statute at issue here -- must "necessarily

involve[] the use or attempted use of physical force" to serve as

a § 922(g)(9) predicate offense. 269 F.3d at 11. We disagreed

with Nason's contention that the reference to "physical force" in

the definition of a "misdemeanor crime of domestic violence" could

not be reconciled with the "offensive physical contact" variant of

assault in the Maine statute. Instead, we read the "plain and

unambiguous meaning" of the phrase "physical force" to be "power,

violence, or pressure directed against another person's body,"

which was broad enough to encompass the "offensive physical

contact" variant of Maine's assault statute. Id. at 16, 20-21.

Therefore, we found, § 922(g)(9) applies to the "offensive physical

contact" component of the Maine simple assault statute. Id.

Specifically, we concluded that "Congress intended the federal law

to cover all persons who have been convicted of assaulting domestic

partners in circumstances similar to those delineated by both

strains of the Maine statute," affirming the conviction and

sentence imposed below. Id. at 12.

In this court's recent decision in United States v.

Booker, we held that an offense with a mens rea of recklessness may

-6-
qualify as a "misdemeanor crime of domestic violence" under § 922

(g)(9). 644 F.3d at 21. In making our decision, we reviewed the

legislative history and intent behind the Lautenberg Amendment.

Id. at 16. We noted Congress's decision to amend the gun law in

recognition of "a problem of significant national concern in the

combination of domestic violence and guns," and Congress's view of

the "existing law as insufficiently protective of its victims."

Id. Prior to the Amendment, federal law only prohibited firearm

possession by convicted felons. Id. Since Congress concluded that

the focus on felony convictions left guns in the hands of a large

number of domestic abusers who were convicted of lesser crimes,

often due to some combination of plea bargaining, outdated or

ineffective laws that treated domestic violence as a lesser

offense, and lack of cooperation from victims, it enacted the

Amendment to "close th[e] dangerous loophole," id. (quoting 142

Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen.

Feinstein)) (internal quotation marks omitted), and "establish[] a

policy of zero tolerance when it comes to guns and domestic

violence," id. (alteration in original) (quoting 142 Cong. Rec.

S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg))

(internal quotation marks omitted).

In interpreting the breadth of the definition of

"misdemeanor crime of domestic violence" in § 922(g)(9), the court

in Booker also rejected analogizing that term to 18 U.S.C. § 16's

-7-
definition of "crime of violence," which includes "an offense that

has as an element the use . . . of physical force against the

person or property of another." Id. § 16(a). Specifically, this

court found that, "[i]n the course of drafting § 921(a)(33)(A),

Congress expressly rejected § 16's definition of 'crime of

violence,' adopting a definition of 'misdemeanor crime of violence'

that was, according to the sponsor of the Lautenberg Amendment,

'probably broader' than the definition of 'crime of violence' in

§ 16." Booker, 644 F.3d at 19 (quoting 142 Cong. Rec. S11872-01,

S11877 (daily ed. Sept. 30, 1996) (statement of Sen. Lautenberg)).

We also explicitly stated that "[t]he threshold at which § 922(g)

(9) will be triggered (misdemeanor crimes) is, accordingly, lower

than the felony threshold set for the [Armed Career Criminal Act]."

Id. at 21. "Whereas 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. Therefore, this court

found "no ambiguity in the phrase 'use . . . of physical force'

when read in light of the 'text, structure, history, and purpose'

of § 922(g)(9)." Id. (citation omitted).

On the basis of these decisions, the district court

summarily denied Armstrong's motion to dismiss. We cannot but

agree, noting that Armstrong's counsel conceded in her motion brief

-8-
below that she had raised the same claims in the district court to

no avail in United States v. Booker, 570 F. Supp. 2d 161 (D. Me.

2008), United States v. Wyman, 667 F. Supp. 2d 151 (D. Me. 2009),

and United States v. Pettengill, 682 F. Supp. 2d 49 (D. Me. 2010),

and, further, that this court has decided Booker and Wyman

adversely to her claims (Pettingill remains pending). However, for

the sake of thoroughness, we will address the two claims raised by

Appellant here.

Appellant concedes that he "engaged in offensive physical

contact with his wife." However, he argues that a misdemeanor

conviction for that assault cannot constitute a predicate offense

for a § 922(g)(9) charge. He asserts first that the language and

history of the misdemeanor violence prohibition's incorporation

into § 922(g)(9) indicates that Congress never intended the

proscription to apply to non-violent battery convictions which

encompass non-violent offensive physical contact at common law. A

cursory interpretation of §§ 921(a)(33)(A) and 922(g)(9), in light

of Nason and Booker, clearly indicates otherwise.

Statutory interpretation begins with the statute's

language. United States v. Hartsock, 347 F.3d 1, 5-6 (1st Cir.

2003). "Where the language of the statute is plain and the meaning

unambiguous, we will do no more than enforce the statute in

accordance with those plain terms." Booker, 644 F.3d at 17 (citing

Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 593 F.3d

-9-
38, 50 (1st Cir. 2010)). This court is bound by the Maine Law

Court's interpretation and application of state law. Johnson v.

United States, 130 S. Ct. 1265, 1269 (2010). We have already found

the phrase "misdemeanor crime of domestic violence" to be

unambiguous. United States v. Meade, 175 F.3d 215, 221 (1st Cir.

1999). In Nason, we reviewed the Maine Law Court's own

interpretation of its simple assault statute's offensive-physical-

contact prong, and found that it included "something less than

bodily injury" but "more than a mere touching of another." Nason,

269 F.3d at 19 (quoting State v. Pozzuoli, 693 A.2d 745, 747 (Me.

1997)) (internal quotation marks omitted). In Booker, we pointed

to Congress's express rejection of including as predicate offenses

only such "crime[s] of violence" as are included in 18 U.S.C. § 16,

and noted Congress's adoption of "a definition of 'misdemeanor

crime of violence' that was, according to the sponsor of the

Lautenberg Amendment, 'probably broader' than the definition of

'crime of violence' in § 16." Booker, 644 F.3d at 19 (quoting 142

Cong. Rec. at S11877 (statement of Sen. Lautenberg)). Courts have

also found that Congress intended to encompass common-law batteries

by including federal misdemeanor batteries in § 921(a)(33)'s

definition of misdemeanor crimes of domestic violence. See 18

U.S.C. § 921(a)(33) (listing domestic-violence crimes that are

"misdemeanor[s] under Federal . . . law"); see, e.g., United States

v. Delis, 558 F.3d 177, 178 (2nd Cir. 2009); United States v.

-10-
Guilbert, 692 F.2d 1340, 1343 (11th Cir. 1982) (citing United

States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974)).

Armstrong's attempt to challenge this court's precedent

through the Supreme Court's ruling in Johnson v. United States is

unavailing. See generally Johnson, 130 S. Ct. 1265. First,

Johnson was issued prior to our decision in Booker. Second,

Johnson explicitly avoided deciding the question at issue here.

Id. at 1273 ("We do not decide that the phrase ['physical force']

has the same meaning in the context of defining a misdemeanor crime

of domestic violence [as opposed to a felony]. The issue is not

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

To conclude, the statute on its face, its legislative

history and this court's precedent do not distinguish between

"violent" or "non-violent" misdemeanor convictions when they

involve the kind of conviction at issue here, and in any case, the

court fails to see how a conviction for an offensive touching such

as the offensive physical contact for which Armstrong was convicted

fails to constitute a predicate offense based on our prior

interpretation of § 922(g)(9) predicate offense requirements of

"physical force." For these reasons, we reject Appellant's first

set of arguments.

Armstrong also raises a due process objection. We review

this argument for plain error since Armstrong failed to raise these

concerns below. United States v. Matos, 611 F.3d 31, 35 (1st Cir.

-11-
2010). There was no error, let alone plain error, in the district

court's decision.

First, the issue that Armstrong characterizes as a "fair

warning" problem is in fact a rehash of the rule of lenity argument

that we squarely rejected in Booker. See 644 F.3d at 21. As we

held in that case, there was no ambiguity in the phrase "use . . .

of physical force" as of the time of Armstrong's conduct that led

to his domestic violence conviction. See id. With no ambiguity,

there could be no lack of warning as to the import of § 922(g).

Armstrong's argument to the contrary relies on the mistaken premise

that Johnson had any effect on the interpretation of what

constitutes a "misdemeanor crime of domestic violence."

Second, Armstrong argues that he was denied due process

because he did not have an opportunity to prove that the conduct

underlying his domestic violence conviction was non-violent.

Again, the premise of this argument fails because of its attempt to

apply Johnson to the § 922(g) context. Johnson explicitly did not

decide anything relating to § 922(g), much less create a new

requirement that the government must prove the degree of violence

inherent in the underlying domestic misdemeanor conduct of a

defendant charged under that section.

Finally, to the extent Armstrong alleges that he was

denied due process because of shortcomings in Maine's procedures

for adjudicating misdemeanor offenses, the argument fails.

-12-
Congress explicitly addressed due process considerations with

respect to misdemeanor proceedings by enacting due process

protections in § 921(a)(33). These include requirements that

misdemeanants have been (1) "represented by counsel in the case, or

knowingly and intelligently waived their right to counsel," 18

U.S.C. § 921(a)(33)(B)(i)(I); and (2) prosecuted in jurisdictions

where they were entitled to a jury trial and either received, or

"knowingly and intelligently waived their right to," such a trial,

id. § 921(a)(33)(B)(i)(II). Armstrong's convictions were full-

scale convictions, he was represented by counsel, and he had

additional judicial process available to challenge the factual and

legal bases for his conviction by appealing to higher courts. See,

e.g., State v. Keegan, 296 A.2d 483, 485-86 (Me. 1972) (explaining

Maine's multi-tiered appeal process for misdemeanor crimes).

Armstrong deliberately waived some of these state court procedures

by pleading guilty, and he does not allege that his plea was not

knowing or voluntary. In short, he received all of the due process

protection in his misdemeanor conviction that Congress anticipated

as being necessary to establish a predicate offense under § 921

(a)(33).

For all of the above-cited reasons, the court rejects

Appellant's due process-based arguments.

-13-
B. Second Amendment Claim

We review constitutional challenges to federal statutes

de novo. Booker, 644 F.3d at 22. The Second Amendment provides:

"A well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms, shall

not be infringed." U.S. Const. amend. II. In District of Columbia

v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the

Second Amendment secured an individual, and not just a collective,

right to bear arms. Id. at 576-626. Heller expressly left for

"future evaluation" the precise level of scrutiny to be applied to

laws that allegedly infringe Second Amendment rights. Id. at 626,

629, 634-35.

In Booker, this court directly addressed the issue of

whether, in light of the Supreme Court's recognition in Heller that

an individual right to gun ownership is protected by the Second

Amendment, convictions under § 922(g)(9) must be found

unconstitutional. Booker, 644 F.3d at 22. We found the "animating

interest" of § 922(g)(9) to be in "keeping guns away from people

who have been proven to engage in violence with those with whom

they share a domestically intimate or familial relationship, or who

live with them or the like." Id. at 25. We also found a

"substantial relationship between § 922(g)(9)'s disqualification of

domestic violence misdemeanants from gun ownership and the

governmental interest in preventing gun violence in the home" since

-14-
"[s]tatistics bear out the Supreme Court's observation that

'firearms and domestic strife are a potentially deadly combination

nationwide.'" Id. (quoting United States v. Hayes, 555 U.S. 415,

427 (2009)). We accordingly held that § 922(g)(9) "substantially

promotes an important government interest in preventing domestic

gun violence," rejecting the appellants' Second Amendment challenge

to the law. Id. at 26.

Armstrong attempts to distinguish this case from Booker

by framing the Second Amendment challenge to § 922(g)(9) therein as

a "facial" challenge as compared to the instant "as-applied"

challenge. Specifically, he contends that, if the relevant

misdemeanor conviction is not based on violent behavior, the

statute cannot survive intermediate scrutiny as applied because the

basis for the proscription is not tailored closely enough to the

identified governmental interest to justify the deprivation of a

core constitutional right.

As an initial matter, this court has not adopted

intermediate scrutiny as the appropriate type of review for a

challenge such as Armstrong's. See Booker, 644 F.3d at 25.

Nonetheless, under any standard, Armstrong's claim fails.

First, Appellant has already conceded in the court below

that his arguments are identical to those made in the lower court

in Booker regarding the constitutionality of § 922(g)(9). An as-

applied challenge following a failed facial challenge to the

-15-
constitutionality of a statute cannot prevail if it is based on

"the same type of fact situation that was envisioned by th[e] court

when the facial challenge was denied." McGuire v. Reilly, 386 F.3d

45, 61 (1st Cir. 2004); see also Republican Nat. Comm. v. Fed.

Election Comm'n, 698 F. Supp. 2d 150, 157 (D. D.C. 2010) ("In

general, a plaintiff cannot successfully bring an as-applied

challenge to a statutory provision based on the same factual and

legal arguments the Supreme Court expressly considered when

rejecting a facial challenge to that provision."), aff'd, 130 S.

Ct. 3544 (2010). Therefore, since Armstrong attempts to assert an

as-applied challenge to the same kind of fact situation envisioned

in Booker, it must fail.

Second, Appellant's arguments fail as an "as-applied"

challenge because a sufficient nexus exists here between the

important government interest and the disqualification of domestic

violence misdemeanants like Appellant. As we found above, the

statute encompasses the kind of "physical force" that Appellant was

convicted of using under the Maine domestic violence assault

statute. Further, in targeting such misdemeanants for its

proscriptions, Congress stated clear reasons for effectuating the

governmental interest through its broadening of the scope of the

firearm proscription so as to provide more substantial protections

for victims of domestic violence. Specifically, the Lautenberg

Amendment was enacted because Congress found the focus on felony

-16-
convictions too narrow. Booker, 644 F.3d at 16. By broadening the

proscription to misdemeanants like Appellant, Congress sought to

"alleviate the danger of intimate homicide by convicted abusers."

Id. at 26. Research that we described in Booker linking the

presence of a gun in the home of a convicted domestic abuser with

increased risk of homicide applies equally here to justify the

restraint on Appellant's constitutional rights. We therefore

reject Armstrong's challenge to the constitutionality of applying

§ 922(g)(9) to him.

III. Conclusion

For the foregoing reasons, we affirm the district court.

-17-