FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10169
Plaintiff-Appellee,
v. D.C. No.
CR-03-00209-HG
FRED NOBRIGA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Argued and Submitted
April 8, 2005—Pasadena, California
Filed May 20, 2005
Before: Kim McLane Wardlaw and Marsha S. Berzon,
Circuit Judges, and James M. Fitzgerald,* District Judge.
Per Curiam Opinion
*The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.
5481
5484 UNITED STATES v. NOBRIGA
COUNSEL
De Anna S. Dotson, Kapolei, Hawaii, for the defendant-
appellant.
Edward H. Kubo, Jr., United States Attorney, and Wes Reber
Porter, Assistant United States Attorney, District of Hawaii,
Honolulu, Hawaii, for the plaintiff-appellee.
OPINION
PER CURIAM:
Fred Nobriga appeals the district court’s denial of his
motion to dismiss the indictment charging him with violating
18 U.S.C. § 922(g)(9) by possessing a firearm after having
been previously convicted of a “misdemeanor crime of
domestic violence,” as defined by 18 U.S.C. § 921(a)(33)
(A)(ii). Nobriga also argues that his sentence violates the
Sixth Amendment in light of United States v. Booker, 125
S. Ct. 738 (2005). We reverse the district court’s denial of
Nobriga’s motion to dismiss and therefore do not reach
Nobriga’s appeal of his sentence.
I
Nobriga was indicted in 2003 by a federal grand jury in
Hawaii for being a person previously convicted of a “misde-
UNITED STATES v. NOBRIGA 5485
meanor crime of domestic violence” in possession of a fire-
arm. Section 921(a)(33)(A)(ii) defines that term as any misde-
meanor that:
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 per-
son who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, or by a per-
son similarly situated to a spouse, parent, or guardian
of the victim.
The predicate offense at issue was Nobriga’s conviction for
Abuse of a Family or Household Member (AFHM), in viola-
tion of HAW. REV. STAT. § 709-906(1). Nobriga had pleaded
no contest to AFHM in a Hawaii state court, and the court
found Nobriga guilty “as charged.”
Nobriga moved to dismiss the federal indictment, claiming
that his underlying AFHM conviction was not for a “misde-
meanor crime of domestic violence,” and that 18 U.S.C.
§ 922(g)(9) was therefore inapplicable. The district court held
that the Hawaii statute was not categorically a “misdemeanor
crime of domestic violence,” but that the charging documents,
together with the judgment, demonstrated that Nobriga had
pleaded to a “misdemeanor crime of domestic violence” as
defined by 18 U.S.C. § 921(a)(33)(A).
After the district court denied Nobriga’s motion to dismiss,
Nobriga entered into a plea agreement with the government,
reserving the right to appeal the district court’s denial of his
motion to dismiss. Shortly thereafter, the district court con-
ducted a Rule 11 colloquy, during which Nobriga stipulated
that his 2000 AFHM conviction was for assaulting a “former
girlfriend.”1 The district court sentenced Nobriga to twenty-
1
The exchange between Nobriga and the district court was as follows:
Q: . . . Now, you were convicted of abuse of a household mem-
5486 UNITED STATES v. NOBRIGA
seven months’ imprisonment, three years of supervised
release, and a “special assessment of $100.” Nobriga timely
appeals.
II
[1] Nobriga’s first challenge to the district court’s denial of
his motion to dismiss is controlled by our decision in United
States v. Belless, 338 F.3d 1063 (9th Cir. 2003). There, we
held that “[t]he phrase ‘physical force’ in the federal defini-
tion at 18 U.S.C. § 921(a)(33)(A)(ii) means the violent use of
force against the body of another individual.” Id. at 1068.
Because the Wyoming statute at issue also criminalized what
we described as “rude or insolent touching,” and because “the
record does not reveal the conduct to which [Belless] pleaded
and for which he was convicted,” we could not “conclude that
the trier of fact, the Wyoming judge in this case, necessarily
found Belless guilty of conduct that, under a modified cate-
gorical approach, serves as a predicate offense.” Id. at 1069.
[2] As in Belless, HAW. REV. STAT. § 709-906(1) does not
necessarily require a “violent use of force.” In addition to
making it unlawful “to physically abuse a family or household
member,” the statute also proscribes “refus[ing] compliance
with the lawful order of a police officer,” an offense that spec-
ifies no use of force, violent or otherwise. Consequently, as
the district court held and the government recognizes, a con-
ber in the year 2000, correct?
A: Yes.
Q: And the charge that you were convicted of included you hit-
ting — was it your former girlfriend?
A: Yes ma’am.
Q: Okay. And so you were convicted of hitting your former
girlfriend?
A. Yes.
UNITED STATES v. NOBRIGA 5487
viction under section 709-906(1) does not categorically suf-
fice to establish the requisite predicate offense.
[3] Under the modified categorical approach derived from
Taylor v. United States, 495 U.S. 575, 602 (1990), and
recently reaffirmed in Shepard v. United States, 125 S. Ct.
1254 (2005), however, the record establishes that Nobriga
necessarily pleaded guilty to a “violent use of force.” Belless,
338 F.3d at 1068. As the district court concluded, the charg-
ing papers and the judgment of conviction make clear that
Nobriga pleaded guilty to “physically abus[ing] a family or
household member,” and not to “refus[ing] compliance with
a lawful order of a police officer.” Hawaii law recognizes that
the “physically abuse” prong requires, at a minimum, a reck-
less use of physical force. See State v. Eastman, 913 P.2d 57,
66 (Haw. 1996); see also State v. Miller, 98 P.3d 265, 266 n.1
(Haw. Ct. App. 2004). “Recklessness” is an adequate mens
rea to establish a “violent” use of force. See, e.g., United
States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.
2003), cert. denied, 125 S. Ct. 863 (2005); United States v.
Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir. 2000).
Nobriga’s AFHM conviction was therefore for a “violent use
of force.” See Belless, 338 F.3d at 1068.
III
The harder issue is whether the victim of Nobriga’s “vio-
lent use of force” had the domestic relationship to Nobriga
required by § 921(a)(33)(A)(ii). Because Nobriga did not
argue this relationship question before the district court, we
review for plain error. See United States v. Tirouda, 394 F.3d
683, 688 (9th Cir. 2005) (“Under the plain error doctrine, we
correct an error where an objection was not interposed at trial
only where the error (1) is plain, (2) affects substantial rights,
and (3) ‘seriously affects the fairness, integrity or public repu-
tation of judicial proceedings.’ ” (quoting United States v.
Jordan, 256 F.3d 922, 926 (9th Cir. 2001))); see also United
States v. Cotton, 535 U.S. 625, 631 (2002).
5488 UNITED STATES v. NOBRIGA
Nobriga’s argument on appeal — that neither the Hawaii
statute standing alone nor the judicially noticeable facts estab-
lish that the victim of his Hawaii offense had the domestic
relationship to Nobriga required by § 921(a)(33)(A)(ii) — is
well taken. For the reasons that follow, we are convinced that
failing to grant Nobriga’s motion to dismiss was plain error.
[4] To satisfy the federal statute, the underlying state law
offense must be committed (1) “by a current or former
spouse, parent, or guardian of the victim”; (2) “by a person
with whom the victim shares a child in common”; (3) “by a
person who is cohabiting with or has cohabited with the vic-
tim as a spouse, parent, or guardian”; or (4) “by a person simi-
larly situated to a spouse, parent, or guardian of the victim.”
18 U.S.C. § 921(a)(33)(A)(ii). The Hawaii statute under
which Nobriga was convicted, HAW. REV. STAT. § 709-906(1),
applies when the victim and the defendant are “spouses or
reciprocal beneficiaries, former spouses or reciprocal benefi-
ciaries, persons who have a child in common, parents, chil-
dren, persons related by consanguinity, and persons jointly
residing or formerly residing in the same dwelling unit.”
HAW. REV. STAT. § 709-906(1) (emphasis added). As its lan-
guage indicates, the Hawaii statute applies in some circum-
stances in which the relationship between the defendant and
the victim fits into none of the categories specified by the fed-
eral statute. For example, “persons jointly residing or for-
merly residing in the same dwelling unit” includes roommates
who have no other, more personal relationship. Each of the
federal categories, in contrast, specifies particular personal
relationships between the victim and the defendant.2
[5] A conviction under the “physically abuse” prong of sec-
tion 709-906(1), then, is not categorically a “misdemeanor
2
Another example is that the Hawaii statute applies to all “persons
related by consanguinity,” including both “children” and “parents,” while
the federal statute applies only to one specified blood relationship — that
in which the defendant is the parent of the victim.
UNITED STATES v. NOBRIGA 5489
crime of domestic violence” under any of
§ 921(a)(33)(A)(ii)’s four prongs. Nor does the indictment or
judgment of conviction for Nobriga’s Hawaii conviction spec-
ify his relationship to his victim.3
The government emphasizes that Nobriga admitted in the
district court that the victim of his Hawaii AFHM conviction
was a “former girlfriend.” Even assuming that we could con-
sider such an admission,4 it cannot carry the weight the gov-
ernment would have us place upon it.
3
The only document in the record that suggests how Nobriga’s assault
met the section 709-906(1) standard is a police report, which we are
barred by Shepard from considering. See 125 S. Ct. at 1563 (holding that
courts applying Taylor may only look to “the terms of the charging docu-
ment, the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial record of this informa-
tion”).
4
Such a post hoc admission is not pertinent to Taylor’s modified cate-
gorical approach. The statement at issue did not come in the plea colloquy
for the offense of conviction, which generally is judicially noticeable
under Taylor and Shepard. See, e.g., United States v. Smith, 390 F.3d 661
(9th Cir. 2004), as amended, No. 03-30533, 2005 WL 957188 (9th Cir.
Apr. 27, 2005). Rather, Nobriga’s statement about the former offense was
made in the district court in this case. Such a statement is not judicially
noticeable under Taylor and Shepard. See, e.g., Shepard, 125 S. Ct. at
1261 (reaffirming Taylor’s holding that “respect for congressional intent
and avoidance of collateral trials require that evidence of generic convic-
tion be confined to records of the convicting court approaching the cer-
tainty of the record of conviction in a generic crime State” (emphasis
added)).
As Nobriga’s statement is not pertinent under Shepard, its only possible
relevance would be as an affirmative waiver of any contention that the
crime for which he was convicted was not using physical force against his
former girlfriend. Because we ultimately conclude that the district court
erred even if Nobriga was convicted of using physical force against his
former girlfriend, we assume, without deciding, that we may construe his
admission as a waiver of any contrary argument regarding the content of
his guilty plea in the Hawaii state court.
5490 UNITED STATES v. NOBRIGA
[6] First, an admission that the victim was a “former girl-
friend” does not bring the Hawaii offense within categories
(1) or (2) of the federal statute — a “current or former spouse,
parent, or guardian of the victim” or “a person with whom the
victim shares a child in common.”
[7] Second, a “former girlfriend” does not fit within cate-
gory (4), a “person similarly situated to a spouse, parent, or
guardian of the victim.” Unlike categories (1) and (3), cate-
gory (4) only covers present relationships, not past ones.
[8] Third, the government’s case must therefore rest
entirely on category (3) — that Nobriga’s “former girlfriend”
is someone with whom Nobriga “is cohabiting with or has
cohabited with . . . as a spouse, parent, or guardian.” 18
U.S.C. § 921(a)(33)(A)(ii) (emphasis added). The govern-
ment’s position is doubly unavailing. A former girlfriend is
not a spouse. Category (4), which includes persons “similarly
situated to a spouse,” would be surplusage if category (3)
applied to non-spouse girlfriends. We do not ordinarily adopt
such an interpretation. See, e.g., United States v. Ogles, No.
03-10439, 2005 WL 976983, at *9 (9th Cir. Apr. 28, 2005)
(reiterating the “ ‘cardinal principle of statutory construction’
that ‘a statute ought, upon the whole, to be so construed that,
if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant’ ” (quoting TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001))).
[9] Furthermore, even if a former girlfriend could fall
within category (3), Nobriga’s admission still does not estab-
lish the critical cohabitation element required by
§ 921(a)(33)(A)(ii). That is to say, nothing Nobriga admitted
in the district court, and nothing elsewhere in the record,
establishes that Nobriga ever “cohabited with the victim as a
spouse.” Recall that the state statute defines “family or house-
hold member” as “spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have a child
in common, parents, children, persons related by consanguin-
UNITED STATES v. NOBRIGA 5491
ity, and persons jointly residing or formerly residing in the
same dwelling unit.” HAW. REV. STAT. § 709-906(1) (empha-
sis added). As the language of section 709-906 makes clear,
when the defendant and victim are present or former “spouses
or reciprocal beneficiaries,” “persons who have a child in
common,” or “parents, children, [or] persons related by con-
sanguinity,” there is no cohabitation requisite; the cohabita-
tion requisite applies only when there is no personal
relationship. Nobriga’s conviction under the Hawaii statute,
absent any other judicially noticeable evidence, thus does not
establish that he ever cohabited with his “former girlfriend,”
and therefore does not satisfy category (3).
[10] Because the relationship between Nobriga and the vic-
tim of his Hawaii AFHM conviction does not fall within any
of the four categories prescribed by § 921(a)(33)(A)(ii), the
government did not establish that Nobriga had previously
been convicted of a “misdemeanor crime of domestic vio-
lence.” Nobriga’s motion to dismiss should therefore have
been granted.
Nor is there any question as to whether we should correct
the error. As our above analysis indicates, the district court’s
error was plain and prejudiced Nobriga. A plea based on an
offense that the defendant could not have committed as a mat-
ter of law satisfies Cotton’s third prong — whether the error
affected substantial rights. See Cotton, 535 U.S. at 631; see
also United States v. Choy, 309 F.3d 602, 607-08 & n.5 (9th
Cir. 2002) (holding that a plain error that is fatal to a convic-
tion is sufficient to warrant reversal).
That Nobriga did not raise this ultimately meritorious argu-
ment in the district court did not unfairly deprive the govern-
ment of the opportunity to present available evidence. We so
held in parallel circumstances in United States v. Pimentel-
Flores, 339 F.3d 959 (9th Cir. 2003):
The government argues that because defendant failed
to assert during sentencing that his prior offense was
5492 UNITED STATES v. NOBRIGA
not a “crime of violence” felony, it was deprived of
the opportunity to collect judicially-noticeable docu-
ments to address his claim. This is incorrect. It was
the government’s burden to prove sentencing
enhancements and to establish unequivocally under
the modified categorical approach as articulated by
us in [United States v.] Corona-Sanchez, [291 F.3d
1201, 1211 (9th Cir. 2002) (en banc)], that Pimentel-
Flores’s prior conviction amounted to a crime of vio-
lence. The government should have been aware of its
obligation . . . .
Id. at 968 (citations omitted). This burden is at least as pro-
nounced in cases such as this one, where it is defendant’s con-
viction, and not just his sentence, that is at issue.5
[11] We therefore reverse the district court’s denial of
Nobriga’s motion to dismiss.
IV
[12] Because we reverse the district court’s denial of
Nobriga’s motion to dismiss, we do not reach Nobriga’s
appeal of his sentence, or the government’s argument that
such an appeal has been waived.6 As Nobriga’s guilty plea
was conditioned on his right to appeal the district court’s
5
That the government’s burden to prove that the defendant pleaded to
specific elements of the predicate offense is at least as significant as its
burden to prove sentencing enhancements follows from Almendarez-
Torres v. United States, 523 U.S. 224 (1998), which we have repeatedly
followed after Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely
v. Washington, 124 S. Ct. 2531 (2004). See, e.g., United States v.
Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004) (order).
6
We recently rejected a similar argument to that which Nobriga
advances here — that Booker vitiates his waiver of his right to appeal even
though his sentence was within the statutory maximum. See United States
v. Cardenas, No. 03-10009, 2005 WL 1027036, at *2 (9th Cir. May 4,
2005).
UNITED STATES v. NOBRIGA 5493
denial of his motion to dismiss, we must remand to the district
court to allow Nobriga to withdraw his plea, if he elects to do
so. See United States v. Gust, No. 04-30208, 2005 WL
950012, at *5 (9th Cir. Apr. 26, 2005); see also United States
v. Mejia, 69 F.3d 309, 317 n.8 (9th Cir. 1995) (“If any ruling
that forms a basis for the conditional [guilty] plea is found to
be erroneous, we are required to permit the defendant to with-
draw his plea.”).
REVERSED and REMANDED.
United States v. Nobriga
Combined Opinion