United States v. Jerry Lee Griffith

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12448 JULY 17, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00064-CR-3-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERRY LEE GRIFFITH,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(July 17, 2006)

Before BIRCH and CARNES, Circuit Judges and TRAGER *, District Judge.

CARNES, Circuit Judge:

*
The Honorable David G. Trager, United States District Judge for the Eastern District of
New York, sitting by designation.
 Jerry Lee Griffith was convicted for possession of a firearm in violation of

18 U.S.C. § 922(g)(9), the provision of the Armed Career Criminal Act (ACCA)

that makes it a crime for anyone who has been convicted of a “misdemeanor crime

of domestic violence” to possess a firearm. Griffith contends that his Georgia

simple battery conviction does not qualify as a predicate offense for § 922(g)(9)

purposes because its contact element does not require physical force. That was the

sole basis of his motion to dismiss the indictment and is the principal basis of his

appeal from the district court’s order denying that motion. The underlying issue of

statutory interpretation about what qualifies as “physical force” for § 922(g)(9)

purposes has been decided by three other circuits, which have split two-to-one

against Griffith’s position. Our decision will make it three-to-one.

I.

In August 2000 Jerry Griffith pleaded guilty to two counts of simple

battery, a misdemeanor under Ga. Code Ann. § 16-5-23(a). We know from state

court records that his conviction on the first count was for making “contact of an

insulting and provoking nature to Delores Griffith, his wife, by hitting her,” and

that his conviction on the second count was for “intentionally mak[ing] contact of

an insulting and provoking nature to Delores Griffith, his wife, by dragging her

across the floor.”

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 Griffith admits that one night in October 2002, which was about two years

after his state court conviction, he was found in possession of a firearm. That led

to his conditional guilty plea to one count of violating § 922(g)(9), the condition of

the plea being that Griffith could appeal the district court’s denial of his motion to

dismiss the indictment. The sole ground of that motion to dismiss was Griffith’s

contention that his prior Georgia misdemeanor conviction was not a valid predicate

offense to sustain his current conviction under 18 U.S.C. § 922(g)(9).

II.

Section 922(g)(9) makes it “unlawful for any person . . . who has been

convicted in any court of a misdemeanor crime of domestic violence” to possess

“any firearm or ammunition” that has been in or affects interstate commerce. 18

U.S.C. § 922(g)(9). The term “misdemeanor crime of domestic violence” is

defined to include 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 . . . .” 18 U.S.C.

§ 921(a)(33)(A). Griffith’s primary contention is that the Georgia statute under

which he was convicted in 2000 does not satisfy the second part of that

definition— that it does not have “as an element, the use or attempted use of

physical force, or the threatened use of a deadly weapon.”

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 The question is not whether the actual conduct that led to Griffin’s prior

conviction involved physical force or worse. If that were the question, this would

be a simpler case because we know from the state court records that Griffith was

convicted of making “contact of an insulting and provoking nature to Delores

Griffith, his wife, by hitting her . . .” and making “contact of an insulting and

provoking nature to Delores Griffith, his wife, by dragging her across the floor.”

Wife beating and dragging is conduct that involves physical force under any

definition of that term. The § 921(a)(33)(A)(ii) definition, however, does not turn

on the actual conduct underlying the conviction but on the elements of the state

crime (“has, as an element . . .”). See 18 U.S.C. § 921(a)(33)(A)(ii); United States

v. Shelton, 325 F.3d 553, 558 n.5 (5th Cir. 2003) (declining to consider in applying

§ 922(g)(9) the defendant’s admission that he used physical force during the

assault, because the court “look[s] to the elements set forth in the statute—not the

actual conduct to determine whether the offense qualifies as a crime of domestic

violence”); United States v. Smith, 171 F.3d 617, 620–21 (8th Cir. 1999) (holding

that in applying § 922(g)(9) “we must look only to the predicate offense rather than

to the defendant’s underlying acts” and “[w]e may expand our inquiry under this

categorical approach to review the charging papers and jury instructions, if

applicable, only to determine under which portion of the assault statute Smith was

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convicted”); see also Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143,

2159 (1990) (in applying the 18 U.S.C. § 924(e) term “violent felony” courts may

look only to the statutory definitions of the prior offense).

The Georgia simple battery statute provides: “A person commits the offense

of simple battery when he or she . . . : (1) Intentionally makes physical contact of

an insulting or provoking nature with the person of another . . . .” Ga. Code Ann. §

16-5-23(a)(1). Applying the categorical or element-by-element approach, the

question is whether the crime defined by that statute requires “as an element, the

use or attempted use of physical force.” If “physical contact of an insulting or

provoking nature,” as described in the Georgia statute, necessarily involves

“physical force,” a conviction in the courts of that state for simple battery is

enough to satisfy the requirements of § 922(g)(9); if not, then not.

On the government’s side of the issue are the decisions of the First Circuit in

United States v. Nason, 269 F.3d 10, 20–21 (1st Cir. 2001) (concluding that a state

statute criminalizing “offensive physical contact” requires the use of “physical

force” so that a violation of it qualifies as a crime of domestic violence for §

922(g)(9) purposes), and the Eighth Circuit in United States v. Smith, 171 F.3d

617, 621 n.2 (8th Cir. 1999) (concluding that a state statute that contains “insulting

or offensive physical contact” as an element requires the use of physical force so

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that a violation of it qualifies as a crime of domestic violence under § 922(g)(9)).

On Griffith’s side of the issue is the Ninth Circuit’s decision in United States v.

Belless, 338 F.3d 1063, 1067–68 (9th Cir. 2003) (concluding that a statute

criminalizing rude, angry or insolent “unlawful touching” does not require

“physical force” sufficient to satisfy § 922(g)(9)). See also Flores v. Ashcroft, 350

F.3d 666, 669–70 (7th Cir. 2003) (interpreting a similar provision of the

Immigration and Naturalization Act that requires an underlying offense to have as

an element the use of physical force, and concluding that intentional touching that

results in bodily injury does not necessarily involve physical force).

“In interpreting a statute we look first to the plain meaning of its words.”

United States v. Maung, 267 F.3d 1113, 1121 (11th Cir. 2001). In this case the key

words in the § 921(a)(33)(A)(ii) definition are “physical force.” The plain

meaning of “physical force” is “[p]ower, violence, or pressure directed against a

person” “consisting in a physical act.” See Black’s Law Dictionary 673 (8th ed.

1999); Nason, 269 F.3d at 16. As we have noted, the Georgia statute has as an

element “physical contact of an insulting or provoking nature.” Ga. Code Ann. §

16-5-23(a)(1). A person cannot make physical contact—particularly of an

insulting or provoking nature—with another without exerting some level of

physical force. See Smith, 171 F.3d at 621 n.2 (“physical contact, by necessity,

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requires physical force to complete”); see also Nason, 269 F.3d at 16 (holding that

a statute criminalizing “offensive physical contact” satisfies § 922(g)(9)’s physical

force requirement and noting that because the straightforward definition of

physical force produces “an entirely plausible result,” the plain language controls).

Therefore, under the plain meaning rule, the “physical contact of an insulting or

provoking nature” made illegal by the Georgia battery statute satisfies the

“physical force” requirement of § 921(a)(33)(A)(ii), which is defined into §

921(g)(9).

The result we reach by applying the plain meaning rule is bolstered by a

look at a close neighbor of the statutory provision we are interpreting. Section

922(g)(8)(C)(ii), which immediately precedes § 922(g)(9), is part of a provision

restricting firearm possession by anyone subject to a court order that prohibits the

“use, attempted use, or threatened use of physical force . . . that would reasonably

be expected to cause bodily injury.” 18 U.S.C. § 922(g)(8)(C)(ii). The

significance of the limiting language narrowing the scope of that provision to force

“that would reasonably be expected to cause bodily injury” is that Congress put the

limitation into the last subsection that precedes § 922(g)(9), but not into §

922(g)(9) itself or into the definition of “crime of domestic violence” that is

contained in § 921(a)(33)(A)(ii).

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 “It is well settled that where Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion

or exclusion.” Duncan v. Walker, 533 U.S. 167, 173, 121 S. Ct. 2120, 2125 (2001)

(internal citation, quotation marks, and alteration omitted). If Congress had wanted

to limit the physical force requirement in § 922(g)(9), it could have done so, as it

did in the last clause of the preceding paragraph of the same subsection, see §

922(g)(8)(C)(ii), and with the same limiting language or something similar to it,

but that is not what Congress did. That it did not speaks loudly and clearly. See

Nason, 269 F.3d at 16–17 (reasoning that the omission of the narrowing language

from § 922(g)(9) is “a clear signal of Congress’s intent” to include within the

ambit of § 922(g)(9) misdemeanor crimes those “involving all types of physical

force, regardless of whether they could reasonably be expected to cause bodily

injury.”); see generally Burlington N. & Sante Fe Ry. Co. v. White, ___ U.S. ___,

___, ___S.Ct. ___, ___, 2006 WL 1698953, at *6 (June 22, 2006) (“We normally

presume that, where words differ as they differ here, ‘Congress acts intentionally

and purposely in the disparate inclusion or exclusion.’”) (quoting Russello v.

United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983)); DIRECTV, Inc. v.

Brown, 371 F.3d 814, 818 (11th Cir. 2004) (“As we have previously stated, ‘when

8
Congress uses different language in similar sections, it intends different

meanings.’”) (quoting Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854,

859 (11th Cir.2000)).

Griffith relies heavily on the Ninth Circuit’s decision in Belless and on the

Seventh Circuit’s decision in Flores. In Belless, the defendant was convicted under

a Wyoming battery statute that criminalizes “unlawfully touch[ing] another in a

rude, insolent or angry manner or intentionally, knowingly or recklessly caus[ing]

bodily injury to another.” See Belless, 338 F.3d at 1067 (quoting Wyo. Stat. Ann.

§ 6-2-501(b)). Characterizing that statute as a “law against rude touchings,” the

Ninth Circuit concluded that a violation of it did not qualify as a crime of violence

for § 922(g)(9) purposes, because it did not have as an element the use or

attempted use of physical force. Belless, 338 F.3d at 1068. The court reasoned

that the physical force requirement in the ACCA cannot possibly include “any

touching” in the “sense of Newtonian mechanics” and held that the physical force

requirement cannot be satisfied by “de minimis” touching. Id. at 1067–68. The

court pointed out that “words and phrases” that are “associated” with physical

force in § 922(g)(9) include “threatened use of a deadly weapon,” which is

“gravely serious.” Id. at 1068. Because the Wyoming statute at issue in Belless

“criminalizes conduct that is minimally forcible, though ungentlemanly,” the Ninth

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Circuit concluded that the statute did not have as an element the “physical force”

required under § 922(g)(9). Id. According to that court, § 922(g)(9) requires

“violent use of force against the body of another.” Id.

To the extent the reasoning in Belless would extend to the “physical contact”

element of the Georgia statute at issue in this case, we disagree with it. The fact

that Congress included in the § 921(a)(33)(A)(ii) definition language to cover

statutes that have as an element “the threatened use of a deadly weapon,” even

when no physical force is attempted or used, does not justify the conclusion that

the use of physical force alone is not enough to come within § 922(g)(9). The

statutory language specifies that either “the use or attempted use of physical force,

or the threatened use of a deadly weapon” is enough. Specifying that either “A or

B” is enough means A alone is enough. It does not mean that A is enough only if it

shares some additional characteristic with B. See S.D. Warren Co. v. Me. Bd. of

Envtl. Prot., ____ U.S. ____, 126 S. Ct. 1843, 1849 (2006) (“The argument seems

to assume that pairing a broad statutory term with a narrow one shrinks the broad

one, but there is no such general usage . . . .”). We know from the language it

included in § 922(g)(8)(C)(ii) (requiring “physical force . . . that would reasonably

be expected to cause bodily injury”) that Congress knew how to require more than

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simple “physical force” if it had wanted to do so. The legislative branch does not

require the help of the judicial branch for that simple drafting task.

Reaching the Belless result in this case would alter the scope of § 922(g)(9)

by effectively inserting the word “violent” into the operative definition contained

in § 921(a)(33)(A)(ii). That modification may be an appealing improvement in

some eyes, but we are not licensed to practice statutory remodeling. See Artuz v.

Bennett, 531 U.S. 4, 10, 121 S. Ct. 361, 365 (2000); Badaracco v. Comm’r of

Internal Revenue, 464 U.S. 386, 398, 104 S. Ct. 756, 764 (1984); Wright v. Sec’y

for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002); Harris v. Garner, 216

F.3d 970, 976 (11th Cir. 2000) (en banc).

The Ninth Circuit in Belless, after discussing Newtonian mechanics, said

that “[o]ur purpose in this statutory construction exercise, though, is to assign

criminal responsibility, not to do physics.” 338 F.3d at 1068. We do not agree that

it is the function of courts to assign criminal responsibility. That is the function of

Congress. In carrying out the assignment of responsibility that Congress has

decided upon, courts should be faithful to the language that it has chosen to express

its will.

The Seventh Circuit’s Flores decision involved an alien ordered removed

under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. §

11
1227(a)(2)(E), because he had committed a “crime of domestic violence.” 350

F.3d at 668. The removal provision incorporated the 18 U.S.C. § 16 definition of

“crime of violence,” see id., which is “‘an offense that has as an element the use,

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

another.’” Flores, 350 F.3d at 669 (quoting 18 U.S.C. § 16(a)) An Indiana battery

statute provided that: “A person who knowingly or intentionally touches another

person in a rude, insolent, or angry manner commits battery, a Class B

misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it

results in bodily injury to any other person.” Id. at 669 (quoting Ind. Code § 35-

42-2-1). Flores had pleaded guilty to a “Class A” version of the offense meaning

that his touching of another person did result in bodily injury.

The Seventh Circuit noted that Indiana courts had construed the state’s

battery statute to apply to situations in which the defendant had only touched a

person’s glasses or merely bruised a person. Id. at 670. “Any contact counts as a

‘touch’—and this includes indirect as well as direct contact, so a snowball, spitball,

or paper airplane qualifies if it hits the target.” Id. at 669. The court also remarked

that: “[I]f the paper airplane inflicts a paper cut, the snowball causes a yelp of

pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class

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A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to

describe any of this as ‘violence.’” Id. at 670.

The court acknowledged that any contact requires force: “Every battery

entails a touch, and it is impossible to touch someone without applying some force,

if only a smidgeon.” Id. at 672. It then concluded that “[t]o avoid collapsing the

distinction between violent and non-violent offenses, we must treat the word

‘force’ as having a meaning in the legal community that differs from its meaning in

the physics community. The way to do this is to insist that the force be violent in

nature—the sort that is intended to cause bodily injury . . . .” Id. The court

reasoned that the elements of Flores’ offense constituted only “physical contact”

and not physical force. Id. at 672. Because the “elements rather than the real

activities are dispositive,” the court held that the element of physical force was not

satisfied. Id.

The Flores court seemed to acknowledge the academic nature of its

reasoning, at least as applied to the facts of that case. It conceded: “Now Flores

did not tickle his wife with a feather during a domestic quarrel, causing her to

stumble and bruise her arm. That would not have led to a prosecution, let alone to

a year’s imprisonment. The police report shows that Flores attacked and beat his

wife even though prior violence had led to an order barring him from having any

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contact with her.” Id. at 670. The concurring opinion in Flores noted that “the

result we reach, though correct on the law, is divorced from common sense. For

one thing, people don’t get charged criminally for expending a newton of force

against victims. Flores actually beat his wife—after violating a restraining order

based on at least one prior beating—and got a one-year prison sentence for doing

so . . . . I do not applaud the result we reach.” Id. at 672–73 (Evans, J.,

concurring).

Unlike the Seventh Circuit, we do not feel compelled to reach a result at war

with common sense, particularly when doing so would require us to alter the plain

language of what Congress has written. Like the Ninth Circuit in Belless, the

Seventh Circuit in Flores has essentially read into a statutory definition a word that

is not there—inserting “violent” before the words “physical force.” If Congress

had meant to say “violent physical force” it easily could have done so. By reading

into a statutory provision a restrictive word in order to guard against an absurd

result that it admits has little or no basis in the real world, the Flores court forced

itself to what could be described as an absurd result in the case before it. In doing

so, it produced a decision that supplies, in the words of the concurring judge, a

good example for those who criticize our system of law (court decisions) as “‘not

tethered very closely to common sense.’” Flores, 350 F.3d at 673 (Evans, J.,

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concurring) (quoting from United States v. Cranley, 350 F.3d 617, 620 (7th Cir.

2003)). We will stick to the common sense approach and result where we can, and

here we can.

III.

The second reason Griffith advances for his contention that his conviction

for violating the Georgia battery statute, Ga. Code Ann. § 16-5-23(a)(1), does not

qualify as a predicate offense for § 922(g)(9) purposes is that the Georgia statute

does not require as an element the existence of a domestic relationship. It does

provide an enhanced penalty when the battery occurs between those involved in a

domestic relationship, Ga. Code Ann. § 16-5-23(f), but none is required for the

battery crime itself.

Griffith did not raise this issue in the district court, so our review is limited

to plain error. We need go no further than the first step of the plain error analysis,

which asks whether there is any error to start with. United States v. Olano, 507

U.S. 725, 732–33, 113 S. Ct. 1770, 1777 (1993). There is not. In United States v.

Chavez, 204 F.3d 1305 (11th Cir. 2000), we said that it is enough to qualify as a

crime of domestic violence if the offense has as an element the use, attempted use

or threatened use of physical force, and “[i]t was committed against a spouse.” Id.

at 1313–14. The prior conviction there was for violation of 18 U.S.C. § 113(a)(4),

15
which does not require the existence of a domestic relationship, yet we held it

qualified as a predicate crime for § 922(g)(9) purposes. Id. Several other courts

have cited our Chavez opinion for the proposition that while the domestic nature of

the relationship must be a fact, it need not be an element of the prior offense. E.g.

United States v.Heckenliable, 446 F.3d 1048, 1049 n.2 (10th Cir. 2006); United

States v. Shelton, 325 F.3d 553, 562 n.12 (5th Cir. 2003); Belless, 338 F.3d at 1066

n.6; United States v. Kavoukian, 315 F.3d 139, 142 (2d Cir. 2002); United States v.

Watkins, 407 F. Supp. 2d 825, 826 (E.D. Ky. 2006).

The reasoning behind this conclusion is adequately laid out in the decisions

of all eight other circuits to address this issue, each of which has reached the same

holding that we did in Chavez. See Heckenliable, 446 F.3d at 1050–52; Shelton,

325 F.3d at 561–62; White v. Dep’t of Justice, 328 F.3d 1361, 1364–67 (Fed. Cir.

2003); Belless, 338 F.3d at 1065–67; Kavoukian, 315 F.3d at 142–45; United

States v. Barnes, 295 F.3d 1354, 1358–66 (D.C. Cir. 2002); United States v.

Meade, 175 F.3d 215, 218–220 (1st Cir. 1999); Smith, 171 F.3d at 620. No

circuits have gone the other way. Therefore, as we held in Chavez, a domestic

relationship must exist as part of the facts giving rise to the prior offense, but it

need not be an element of that offense.

AFFIRMED.

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