dissenting:
I would affirm the district court. Respectfully, I disagree with the majority that our sister circuits have erred in concluding that 18 U.S.C.A. § 921(a)(33)(A) (West 2000 & 2006) plainly requires that only the mode of aggression, and not the relationship status between the perpetrator and the victim, must be an element of the predicate misdemeanor offense. In addition, I find no merit in Hayes’s contention that the Government may not prove the existence of a domestic relationship through evidence other than the state court’s charging papers and record of his guilty plea.
In ruling as we do today, we are not in the minority on this issue, we are the minority. The nine circuits that have considered the question in a published opinion have uniformly rejected the interpretation advanced by the majority. See United States v. Heckenliable, 446 F.3d 1048, 1049 (10th Cir.2006); United States v. Belless, 338 F.3d 1063, 1067 (9th Cir.2003); White v. Dept. of Justice, 328 F.3d 1361, 1364-67 (Fed.Cir.2003); United States v. Shelton, 325 F.3d 553, 562 (5th Cir.2003); United States v. Barnes, 295 F.3d 1354, 1358-61 (D.C.Cir.2002); United States v. Kavoukian, 315 F.3d 139, 142-44 (2d Cir.2002); United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.2000); United States v. Meade, 175 F.3d 215, 218-21 (1st Cir.1999); United States v. Smith, 171 F.3d 617, 619-21 (8th Cir.1999).1 Accordingly, I respectfully dissent.
I.
Section 921(a)(33)(A) defines a “misdemeanor crime of domestic violence” (“MCDV”) as follows:
Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, *761committed 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 cohabitating 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[.]2
18 U.S.C.A. § 921(a)(33)(A). Thus, the statutory definition divides the term into two separately defined components — subsection (i) explains what Congress meant by “misdemeanor,” and subsection (ii) defines “crime of domestic violence.” My colleagues derive their interpretation of the MCDV definition from the following observations: (1) Congress employed this bifurcated approach; (2) the “committed by ...” phrase forms part of the second subsection; and (3) the two sentence fragments in § 921(a)(33)(A)(ii) are not separated by a semicolon. With all due respect, however, observation is not analysis. For, the reasons that follow, I believe the structure of § 921 (a)(33)(A)(ii) cannot support the weight the majority would have it bear.
“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Questions concerning the plainness or the ambiguity of the statutory language are resolved “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843.
As explained above, the statute bifurcates the MCDV definition into two separately defined components. Section 921 (a)(33)(A)(i) defines “misdemeanor” and § 921(a)(33)(A)(ii) sets forth the criteria necessary for an offense to qualify as a “crime of domestic violence.” The language of § 921(a)(33)(A)(ii), read in its natural and obvious sense, supports only one interpretation — that § 921 (a)(33)(A)(ii) requires the predicate offense to have, as, an element, the use or attempted use of physical force (or the threatened use of a deadly weapon), and to have been committed by a person who has one of the enumerated relationships with the victim. Thus, the statute unambiguously requires that only the mode of aggression, and not the relationship status between the perpetrator and the victim, be included in the formal definition of the predicate misdemeanor offense.
It is significant that Congress used the singular noun “element” immediately preceding the first of two conceptually distinct attributes. See, e.g., Meade, 175 F.3d at 218-19. The use of force and the relationship between the aggressor and the victim “are two very different things, and thus would constitute two different elements.” Belless, 338 F.3d at 1066. Had Congress intended that both requirements be mandatory elements of the predicate offense, it would have used the plural word “elements,” or employed its often-used phrase “has as its elements,” to encompass both requirements. See Barnes, 295 F.3d at 1363; accord Meade, 175 F.3d at 219; Belless, 338 F.3d at 1066; Heckenliable, 446 F.3d at 1050.
The majority’s narrow focus on the placement of punctuation marks distorts the plain meaning of the statutory language and rests ultimately on a misconstruction of Supreme Court precedent. In United States v. Naftalin, 441 U.S. 768, 99 S.Ct. 2077, 60 L.Ed.2d 624 (1979), the Supreme Court simply noted that “matters like punctuation are not decisive of the construction of a statute,” but “where they *762reaffirm conclusions drawn from the words themselves they provide useful confirmation.” 441 U.S. at 774 n. 5, 99 S.Ct. 2077 (internal quotation marks and alteration omitted). The majority draws no conclusions from the words themselves (other than deeming the use of the singular word “element” insignificant), basing its decision instead on the placement of the “committed by” phrase in the second of two subsections separated by a semicolon.
My colleagues’ reliance on the rule of the last antecedent is likewise misguided. As the majority acknowledges, “a particular reading is not compelled by application of the rule of the last antecedent where it is ‘quite plausible as a matter of common sense’ that a phrase could modify more than one term or phrase.” Ante at 754 (citing In re Witt, 113 F.3d 508, 511 (4th Cir.1997)); see also Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (stating that the rule of the last antecedent “is not absolute and can assuredly be overcome by other indicia of meaning”). The majority asserts that an interpretation consistent with the rule of the last antecedent is compelled by the distance separating the “committed by” phrase from the word “offense.” The opinion cites no support for this proposition, however, and I can conceive of none. As discussed above, to determine whether reliance on the rule of the last antecedent is appropriate, we look to whether other indicia of meaning suggest that a syntactically disfavored construction is plausible, not to the distance between words.
In addition, I note that the majority’s approach creates a significant practical anomaly that undermines Congress’s goals in enacting 18 U.S.C.A. § 922(g)(9) (West 2000). When Congress enacted § 922(g)(9), fewer than half of the states had misdemeanor statutes that formally included relationship status as an element of a misdemeanor domestic assault offense; most states charged domestic violence offenders under their general assault statutes. See e.g., Heckenliable, 446 F.3d at 1051-52. In my view, it is unlikely that Congress sought to address a nationwide issue by enacting legislation that would immediately become a dead letter in a majority of the states.3
II.
Because the statute has a plain and unambiguous meaning with regard to the particular dispute at issue in this case, and the statutory scheme is coherent and consistent, resort to the legislative history is unnecessary. See Robinson, 519 U.S. at 340, 117 S.Ct. 843 (“Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent” (internal quotation marks *763omitted)). Accordingly, I do not fault the majority’s decision not to rely on the statute’s legislative history.
I am forced, however, to take issue with my colleagues’ unwillingness to concede that the available legislative history is more than “arguably” on point. My colleagues assert that “[t]he only statement arguably on point was made by Senator Lautenberg, addressing the implementation of the enactment[.]” Ante at 758. Senator Lautenberg explained that because
convictions for domestic violence-related crimes often are for crimes, such as assault, that are not explicitly identified as related to domestic violence[,] ... it will not always be possible ... to determine from the face of someone’s criminal record whether a particular misdemean- or conviction involves domestic violence, as defined in the new law....
142 Cong. Ree. S11872-01, *S11878 (1996). Contrary to my colleagues’ characterization, I believe this comment directly addresses the issue of whether crimes that do not include a domestic relationship as an element qualify as MCDVs “as defined in [§ 921 (a)(33)(A)].” Id. In addition, the legislative history reveals that § 921(a)(33)(A)(ii), as originally proposed, defined a crime of domestic violence as a “crime of violence” committed against an individual with whom the perpetrator had a domestic relationship. Some members of Congress, however, expressed concern that “crime of violence” was potentially “too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors.” 142 Cong. Rec. S11872-01, *S11877. As a result, shortly before the statute was enacted, Congress replaced “crime of violence” with “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” See id.
III.
Having explained the basis for my disagreement with the majority’s interpretation of § 921(a)(33)(A), I now turn to the arguments advanced by Hayes. Hayes contends that the district court erred in refusing to dismiss the Superseding Indictment because the Government lacked “judicially noticeable evidence of a domestic relationship.” (Appellant’s Br. at 8.) This argument reflects Hayes’s belief that the Government may not prove the existence of a domestic relationship through evidence other than the state court’s charging papers and record of his guilty plea.4 The district court rejected this contention, reasoning that because the MCDV definition does not require that the relationship between the victim and the perpetrator appear in the formal definition of the offense, there existed no basis for confining the Government’s method of proof to state court records. The district court went on to conclude that, because the indictmént tracked the language of 18 U.S.C.A. § 922(g)(9) and properly alleged each element of the offense, the indictment was valid on its face. See United States v. Wills, 346 F.3d 476, 488 (4th Cir.2003) (“An indictment returned by a legally constituted and unbiased grand jury, ... if *764valid on its face, is enough to call for trial of the charges on the merits.” (internal quotation marks and alteration omitted)). I find no fault with this analysis and agree with the district court that, as a result, whether the Government had sufficient evidence to prove Hayes guilty of the crime charged was a matter for the jury to decide and not a proper basis on which to challenge the indictment itself. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 802, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (stating that “[o]nly a defect so fundamental that it causes the grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to be tried”).
Hayes’s second argument on appeal parallels his first. He contends that the district court erred in admitting “extrinsic evidence” of a domestic relationship, because under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and United States v. Washington, 404 F.3d 834 (4th Cir.2005), the charging documents, the terms of the plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented constitute the only acceptable means to prove a prior conviction.
I agree with the district court that the evidentiary limits in Shepard and Washington apply only to judicial fact-finding. The restrictions safeguard a defendant’s Sixth Amendment right “to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged,” United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and “any particular fact that the law makes essential to his punishment,” United States v. Booker, 543 U.S. 220, 232, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (internal quotation marks omitted). There exists no logical or precedential basis for the extension of the same limitations to the range of evidence that is admissible when the Government is being put to its burden of proof at trial.
IV.
In sum, I would hold that § 921(a)(33)(A) plainly requires that only the mode of aggression, and not the relationship status between the perpetrator and the victim, must be an element of the predicate misdemeanor offense. The Government, of course, remains obligated to prove the existence of a domestic relationship as defined in § 921(a)(33)(A)(ii) to a jury beyond a reasonable doubt, using “extrinsic evidence” admissible under the Federal Rules of Evidence if necessary. Accordingly, I respectfully dissent.
. A panel of this court has likewise refuted the majority’s interpretation, albeit in an unpublished opinion. See United States v. Ball, 7 Fed.Appx. 210, 213 (4th Cir.2001) (unpublished) (concluding that “[s]ection 921(a)(33)(A) requires the predicate offense to have only one element-the use or attempted use of physical force; the relationship between perpetrator and victim need not appear in the formal definition of the predicate offense”). Unpublished decisions, of course, lack precedential value, and I reference Ball simply to illustrate the overwhelming consensus that existed prior to the majority's decision in the case before us. See 4th Cir. R. 32.1 (citations to unpublished decisions issued prior to January 1, 2007 are permitted, but disfavored).
. Interestingly, Congress did not place a period at the end of this sentence.
. Although four of the five states within our jurisdiction — North Carolina, South Carolina, Virginia, and West Virginia — have misdemeanor domestic assault statutes that include both the mode of aggression and the relationship status between the perpetrator and the victim within the formal definition of the offense, see N.C. Gen.Stat. § 14 — 33(d) (2005); S.C.Code Ann. § 16-25-20 (2003 & Supp. 2006); Va.Code Ann. § 18.2-57.2 (2004 & Supp.2006); W. Va.Code § 61-2-28 (Lexis Nexis 2005 & Supp.2006), Maryland does not. Although Maryland has enacted a domestic violence statute, its primary focus is preventative, not punitive. Maryland Code §§ 4-501 through 5-516 of the Family Law Article authorizes courts to issue civil protective orders to victims of domestic violence and "provides for a wide variety and scope of available remedies designed to separate the parties and avoid future abuse.” Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 775 A.2d 1249, 1256 (2001) (internal quotation marks omitted). Perpetrators of domestic violence, of course, remain "subject to prosecution for their conduct-for assault, rape and other sexual offenses, criminal homicide, kidnapping- and, indeed, for failing to comply with relief provided in a protective order.” Id. at 1256 n. 2.
. Hayes's argument stems from a somewhat puzzling misinterpretation of United States v. Nobriga, 408 F.3d 1178 (9th Cir.2005), withdrawn by 433 F.3d 1090 (9th Cir.2006). No-briga held only that (1) a conviction under the "physically abuse” prong of Hawaii’s "Abuse of a Family or Household Member” ("AFHM”) statute was not categorically a conviction for an MCDV, because the Hawaii statute encompassed a broader range of relationships than those enumerated in § 921(a)(33)(A)(ii), and (2) because the relationship between Nobriga and the victim of his Hawaii AFHM conviction was not included in § 921(a)(33)(A)(ii), the Government had failed to prove that Nobriga had been previously convicted of an MCDV. Id. at 1182-83.