United States v. White

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4114
WILLIAM S. WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:08-cr-00338-REP-1)

Argued: January 27, 2010

Decided: June 1, 2010

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and
Catherine C. BLAKE, United States District Judge for the
District of Maryland, sitting by designation.

Reversed and vacated by published opinion. Judge Agee
wrote the opinion, in which Chief Judge Traxler and Judge
Blake joined.

COUNSEL

ARGUED: Eric Hans Kirchman, KIRCHMAN & KIRCH-
MAN, Washington, D.C., for Appellant. Richard Daniel
2 UNITED STATES v. WHITE
Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Kenneth M.
Robinson, Washington, D.C., for Appellant. Dana J. Boente,
United States Attorney, Alexandria, Virginia, Kevin C. Nun-
nally, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.

OPINION

AGEE, Circuit Judge:

William White ("White") was convicted in the United
States District Court for the Eastern District of Virginia for
violating 18 U.S.C. § 922(g)(9) (2000), possessing a firearm
after having "been convicted in any court of a misdemeanor
crime of domestic violence." On appeal, White argues that his
predicate conviction under Virginia law cannot be considered
a "misdemeanor crime of domestic violence" as defined in 18
U.S.C. § 921(a)(33)(A) (2000 & Supp. 2009). For the reasons
set forth by the United States Supreme Court in Johnson v.
United States, __ U.S. __, 130 S. Ct. 1265 (2010), inter alia,
we agree with White, reverse the judgment of the district
court and vacate White’s conviction.

I.

In 2004, White pled guilty and was convicted in the Gen-
eral District Court of Henrico County, Virginia, of violating
VA CODE ANN. § 18.2-57.2 for "assault and battery against
a family or household member," which is a Class 1 misde-
meanor under Virginia law.1 Because White was a first-time
offender, however, the court proceeded under VA CODE
1
Punishment for conviction of a Class 1 misdemeanor is limited to "con-
finement in jail for not more than twelve months and a fine of not more
than $2,500, either or both." VA CODE ANN. § 18.2-11 (West 2009).
 UNITED STATES v. WHITE 3
ANN. § 18.2-57.3, which allowed the court to defer entering
judgment and place White on certain terms and conditions.
Accordingly, the general district court ordered that White
complete an anger-management course and avoid contact with
the victim or her family members. When White failed to com-
plete the course, he was arrested, found guilty of the original
offense under VA CODE ANN. § 18.2-57.2 and sentenced to
twelve months in jail, all suspended.2

General district courts in Virginia are courts not of record,
VA CODE ANN. § 16.1-69.5, so the only record of the
charges, trial, conviction and sentence is the executed warrant
of arrest as executed by the trial judge. As to the facts of
White’s offense, all that is known is the date, August 25,
2004, and that the charge is "assault and batter[y] of [victim]
(child in common), who is a family or household member."
J.A. 38.

In 2008, White was indicted in the Eastern District of Vir-
ginia under § 922(g)(9) for being in possession of a firearm
after having "been convicted of a misdemeanor crime of
domestic violence." J.A. 7. White and the Government stipu-
lated that the only predicate conviction which could be con-
sidered a misdemeanor crime of domestic violence was the
Henrico County assault and battery conviction, and that White
did possess a firearm after that conviction. White did not con-
test in the district court, nor does he on appeal, that the victim
of the assault and battery was a person who fit the statutory
definition in § 921(a)(33)(A)(ii).

White filed a motion to dismiss the indictment arguing that
his Virginia conviction was "not a ‘misdemeanor crime of
2
In addition to his conviction for violation of VA CODE ANN. § 18.2-
57.2, White was found guilty of contempt for violating the general district
court’s previous order. On the contempt charge he was sentenced to thirty
days imprisonment with twenty-six days suspended and again ordered to
complete anger-management.
4 UNITED STATES v. WHITE
domestic violence,’" which, for purposes of § 922(g)(9) is
defined by § 921(a)(33)(A). He contended that as Virginia
uses the common law definition of battery, the elements of
that crime could not meet the statutory definition of "misde-
meanor crime of domestic violence," which requires the
offense to have "as an element, the use or attempted use of
physical force." § 921(a)(33)(A)(ii) (West 2000 & Supp.
2009). White’s counsel argued that "[a] battery is any inten-
tional touching no matter how slight it is. I wouldn’t suggest
that would be physical force." J.A. 62.

The district court denied the motion to dismiss because it
perceived "the Virginia interpretations of the elemental
requirements of assault and battery under Virginia law in
18.2-57.2 and the attempted use of force under federal law
[as] essentially the same." J.A. 71.

White subsequently entered a conditional guilty plea to the
firearms charge, which reserved his right to seek appellate
review of the denial of his motion to dismiss. The district
court sentenced White to 57 months of imprisonment. He
timely appeals the judgment of the district court and we have
jurisdiction under 28 U.S.C. § 1291 (2006).

II.

A.

Section 922(g)(9) makes it a felony under federal law to
possess a firearm after having been convicted of a "misde-
meanor crime of domestic violence," which § 921(a)(33)(A)
defines as "a misdemeanor under Federal, State, or Tribal
law" that

has, as an element, the use or attempted use of physi-
cal 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
 UNITED STATES v. WHITE 5
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 simi-
larly situated to a spouse, parent, or guardian of the
victim.

§ 921(a)(33)(A)(i)-(ii) (emphasis added).

The issue to be decided in this case is whether the "use . . .
of physical force," as that term is used in § 921(a)(33)(A)(ii),
is an element of the criminal offense of assault and battery
under Virginia law.3 "Physical force" is not defined in § 921
or any other relevant federal statute.

White argues that a person can be convicted of assault and
battery in Virginia without the use of "physical force." This
is because, White contends, Virginia retains the common law
definition of battery, which includes even the slightest offen-
sive touching as an act of battery. According to White, a mere
offensive touching is not synonymous with "physical force",
at least for purposes of an act covered by § 922(g)(9).

The Government admits that "Virginia, like roughly half
the States, follows the traditional common-law approach to
battery and permits a conviction for battery where there is
either bodily injury or an offensive touching." Br. of Appellee
at 11. However, the Government asserts that an assault and
battery conviction under VA CODE ANN. § 18.2-57.2 neces-
3
Assault and battery against a family or household member is addressed
in VA CODE ANN. § 18.2-57.2, the statute under which White was con-
victed in the Henrico County General District Court. An assault and bat-
tery under § 18.2-57.2 is a subset of the generic offense of assault and
battery under VA CODE ANN. § 18.2-57 and is distinguished only by the
victim of the crime. Other than the identity of the victim, there is no ques-
tion that the elements of assault and battery under either of the Virginia
statutes are identical. Section 18.2-57.2 provides in pertinent part that
"[a]ny person who commits an assault and battery against a family or
household member is guilty of a Class 1 misdemeanor."
6 UNITED STATES v. WHITE
sarily encompasses the application of "physical force"
because the applicable definitional statute, § 921(a)(33)(A),
contains no minimal limit on the amount of force required. In
the Government’s view,

[a]lthough Virginia law does not require proof that
the skin was penetrated or that some grievous injury
occurred, nothing in the plain meaning of "physical
force" requires such consequences. The definition of
"physical force" requires no more than that force
applied to the victim’s body, and that standard is met
by a touching of the victim’s body that is done will-
fully or in anger.

Id. at 12. In other words, the Government’s position is that
any intentional physical contact with a victim’s person,
regardless how de minimis, constitutes "physical force" as that
term is used in § 921(a)(33)(A)(ii). According to the Govern-
ment, any and every battery conviction under VA CODE
ANN. § 18.2-57.2 would be a misdemeanor crime of domestic
violence for purposes of felony status under § 922(g)(9).

B.

In Virginia, statutory assault and battery offenses, including
those under VA CODE ANN. § 18.2-57.2, incorporate the
common law crime of "assault and battery" without statutory
modification or restriction. Clark v. Commonwealth, ___
S.E.2d ___, 2010 WL 1490006, at *3 (Va. Apr. 15, 2010)
(explaining that "because the elements of assault are not statu-
torily defined, this Court must apply the common law defini-
tion"); Montague v. Commonwealth, 684 S.E.2d 583, 588
(Va. 2009) (affirming conviction under VA CODE ANN.
§ 18.2-57 and noting that "[a]ssault and battery are common
law crimes"). It is clear from longstanding Virginia jurispru-
dence that battery may be accomplished with the slightest
touch and no physical injury is required. In 1867 Virginia’s
highest court explained that
 UNITED STATES v. WHITE 7
[a]n assault is any attempt or offer with force or vio-
lence to do a corporeal hurt to another, whether from
malice or wantonness, as by striking at him in a
threatening or insulting manner, or with such other
circumstances as denote at the time an intention,
coupled with a present ability, of actual violence
against his person, as by pointing a weapon at him
when he is within reach of it. When the injury is
actually inflicted it amounts to a battery, which
includes an assault, and this, however small it may
be, as by spitting in a man’s face, or in any way
touching him in anger, without lawful provocation.

Hardy v. Commonwealth, 17 Gratt. 592 at *6 (Va. 1867)
(emphasis added). "A battery is the unlawful touching of the
person of another by the aggressor himself, or by some sub-
stance set in motion by him" and "[t]he law cannot draw the
line between different degrees of force, and therefore totally
prohibits the first and lowest stage of it." Lynch v. Common-
wealth, 109 S.E. 427, 428 (Va. 1921) (citation omitted)
(emphasis added). "The law is so jealous of the sanctity of the
person that the slightest touching of another, or of his clothes,
or cane, or anything else attached to his person, if done in a
rude, insolent, or angry manner, constitutes a battery for
which the law affords redress." Crosswhite v. Barnes, 124
S.E. 242, 244 (Va. 1924); see also Jones v. Commonwealth,
36 S.E.2d 571, 572 (Va. 1946) ("Battery is the actual inflic-
tion of corporal hurt on another (e.g., the least touching of
another’s person), wilfully or in anger, whether by the party’s
own hand, or by some means set in motion by him."); Perkins
v. Commonwealth, 523 S.E.2d 512, 513 (Va. Ct. App. 2000)
("Assault and battery is ‘the least touching of another, will-
fully or in anger.’") (quoting Roger D. Groot, Criminal
Offenses and Defenses in Virginia 29 (4th. ed. 1998)); Gnadt
v. Commonwealth, 497 S.E.2d 887, 888 (Va. Ct. App. 1998)
("An assault and battery is an unlawful touching of another.
It is not necessary that the touching result in injury to the per-
8 UNITED STATES v. WHITE
son. Whether a touching is a battery depends on the intent of
the actor, not on the force applied.").

With this clear view of Virginia law defining the elements
of assault and battery in mind, we must decide whether "phys-
ical force" in § 921(a)(33)(A)(ii) encompasses any application
of force. That is, does the statutory meaning of "physical
force" include the slightest offensive touching, as the Govern-
ment contends, so that any Virginia battery conviction involv-
ing a statutorily defined victim, is a "misdemeanor crime of
domestic violence?" Or, as White contends, does "physical
force" in the federal statute require a greater application of
force than merely an intentional touching that causes no
injury? If the latter is the case, then conviction of assault and
battery in Virginia would not, in and of itself, be a "misde-
meanor crime of domestic violence" for § 922(g)(9) purposes.

C.

This Court has not previously considered whether a convic-
tion for assault and battery under Virginia law constitutes a
"misdemeanor crime of domestic violence" as defined in
§ 921(a)(33)(A). Although the district court did not indicate
it examined the decisions of other courts, a review of opinions
by the circuit courts of appeal considering the assault and bat-
tery statutes of other states reflect a significant split of author-
ity. Although we believe the Supreme Court’s recent decision
in Johnson resolves the issue before us, the conflicting deci-
sions of our sister circuits place the issue in perspective.

The courts of appeal for the First, Eighth and Eleventh Cir-
cuits have concluded that the "touching" element of common
law battery, no matter how slight, falls within the plain mean-
ing of the statutory term "physical force" as intended by Con-
gress. See United States v. Griffith, 455 F.3d 1339 (11th Cir.
2006); United States v. Nason, 269 F.3d 10 (1st Cir. 2001);
United States v. Smith, 171 F.3d 617 (8th Cir. 1999). Review-
ing the Maine assault and battery statute, the First Circuit
 UNITED STATES v. WHITE 9
stated in Nason that "[t]his means that we must read the
unqualified use of the term ‘physical force’ in section
922(g)(9) as a clear signal of Congress’s intent that section
922(g)(9) encompass misdemeanor crimes involving all types
of physical force, regardless of whether they could reasonably
be expected to cause bodily injury." 269 F.3d at 16–17. To do
otherwise, the Eleventh Circuit indicated in Griffith, would
require "effectively inserting the word ‘violent’ into the oper-
ative definition contained in § 921(a)(33)(A)(ii). That modifi-
cation may be an appealing improvement in some eyes, but
we are not licensed to practice statutory remodeling." 455
F.3d at 1344.

Both the Nason and Griffith Courts pointed to the use of
language modifying the term "physical force" in the statutory
subsection immediately preceding subsection 922(g)(9) as a
basis for their decisions.

Section 922(g)(8)(C)(ii), which immediately pre-
cedes § 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).

"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 gen-
erally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion."
10 UNITED STATES v. WHITE
Duncan v. Walker, 533 U.S. 167, 173 (2001) (inter-
nal 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.

Id. at 1342.

In contrast, the courts of appeal for the Seventh, Ninth and
Tenth Circuits have concluded the "touching" element of
common law battery is not "physical force" as contemplated
in § 921(a)(33)(A) or similar statutes. See United States v.
Hays, 526 F.3d 674 (10th Cir. 2008); United States v. Belless,
338 F.3d 1063 (9th Cir. 2003); Flores v. Ashcroft, 350 F.3d
666 (7th Cir. 2003). In Flores, the Seventh Circuit examined
whether a "crime of domestic violence" under the Immigra-
tion and Nationality Act included the Indiana battery statute
which defined an offense as "any touching in a rude, insolent,
or angry manner." 350 F.3d at 669. This inquiry mirrors that
under § 922(g)(9) because the "crime of domestic violence"
under 8 U.S.C. § 1227(a)(2)(E) was defined in Flores by ref-
erence to 18 U.S.C. § 16, which provides that "[t]he term
‘crime of violence’ means", like § 921(a)(33)(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." Id. (quotation omitted). The court concluded "physi-
cal force" in a "crime of domestic violence" did not include
rude touching as a battery under Indiana law.

Section 16(a) refers to the "use of physical force".
Every battery entails a touch, and it is impossible to
touch someone without applying some force, if only
a smidgeon. Does it follow that every battery comes
within § 16(a)? No, it does not. Every battery
involves "force" in the sense of physics or engineer-
 UNITED STATES v. WHITE 11
ing, where "force" means the acceleration of mass.
...

To avoid collapsing the distinction between vio-
lent 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 commu-
nity. The way to do this is to insist that the force be
violent in nature—the sort that is intended to cause
bodily injury, or at a minimum likely to do so. We
have already drawn just that line. See Solorzano-
Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir.
2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir.
1999). Otherwise "physical force against" and "phys-
ical contact with" would end up meaning the same
thing, even though these senses are distinct in law.

Id. at 672.

In Hays, the Tenth Circuit reached the same conclusion in
determining that a conviction under the Wyoming battery stat-
ute was not a "misdemeanor crime of domestic violence" for
§ 922(g)(9) purposes. Wyoming utilizes the common law def-
inition of battery, so touching "another in a rude, insolent or
angry manner" violates the statute. 526 F.3d at 675 (citing
WYO. STAT. ANN. § 6-2-501(b)). The Tenth Circuit con-
cluded that such a battery was not "physical force" within the
meaning of § 921(a)(33) for reasons similar to those
expressed in Flores.

[W]e conclude that the first prong of the Wyoming
battery statute does not categorically satisfy the defi-
nition of "misdemeanor crime of domestic violence"
found in § 921(a)(33)(A) because it "embraces con-
duct that does not include ‘use or attempted use of
physical force.’" Belless, 338 F.3d at 1067. Indeed,
one can think of any number of "touchings" that
might be considered "rude" or "insolent" in a domes-
12 UNITED STATES v. WHITE
tic setting but would not rise to the level of physical
force discussed above. For example, in the midst of
an argument, a wife might angrily point her finger at
her husband and he, in response, might swat it away
with his hand. This touch might very well be consid-
ered "rude" or "insolent" in the context of a vehe-
ment verbal argument, but it does not entail "use of
physical force" in anything other than an exceed-
ingly technical and scientific way. Similarly, "indi-
rect" contact such as throwing "a snowball, spitball,
or paper airplane," or water at one’s spouse or
domestic partner, without causing harm or injury,
could be considered rude or insolent touching under
the Wyoming statute. See Flores, 350 F.3d at 669.
We doubt this kind of contact was the type of crime
of "domestic violence" that Congress had in mind
when it passed § 922(g)(9).

526 F.3d at 679.

The resolution of which competing analysis of the term
"physical force" is controlling has been, we believe, authorita-
tively determined by the Supreme Court in Johnson. We now
turn to that opinion and its impact on the case at bar.

D.

The defendant in Johnson was convicted as a felon in pos-
session of ammunition under § 922(g)(1) and the Government
sought to impose an enhanced penalty at sentencing pursuant
to the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1)
(2000 & Supp. 2009) ("ACCA"). Under the ACCA, Johnson
could receive the enhanced penalty if he had three previous
convictions for a "violent felony," which is defined as "‘any
crime punishable by imprisonment for a term exceeding one
year . . that— (i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another." § 924(e)(2)(B) (2000) (emphasis added).
 UNITED STATES v. WHITE 13
At issue was Johnson’s Florida conviction for misdemeanor
battery under Fla. Stat. § 784.03(1)(b). The Government con-
tended the Florida battery conviction was Johnson’s third "vi-
olent felony." Johnson argued that the Florida conviction did
not qualify as a "violent felony" because battery in Florida
was common law battery and did not encompass "physical
force" as an element of that crime. The Supreme Court
explained that

Under § 784.03(1)(a), a battery occurs when a per-
son either "1. [a]ctually and intentionally touches or
strikes another person against the will of the other,"
or "2. [i]ntentionally causes bodily harm to another
person." Because the elements of the offense are dis-
junctive, the prosecution can prove a battery in one
of three ways. State v. Hearns, 961 So.2d 211, 218
(Fla. 2007). It can prove that the defendant
"[i]ntentionally caus[ed] bodily harm," that he "in-
tentionally str[uck]" the victim, or that he merely
"[a]ctually and intentionally touche[d]" the victim.

Since nothing in the record of Johnson’s 2003 bat-
tery conviction permitted the District Court to con-
clude that it rested upon anything more than the least
of these acts, see Shepard v. United States, 544 U.S.
13, 26 (2005) (plurality opinion), his conviction was
a predicate conviction for a "violent felony" under
the Armed Career Criminal Act only if "[a]ctually
and intentionally touch[ing]" another person consti-
tutes the use of "physical force" within the meaning
of § 924(e)(2)(B)(i). The District Court concluded
that it does, and accordingly sentenced Johnson
under § 924(e)(1) to a prison term of 15 years and 5
months.

130 S. Ct. at 1269.

Continuing, the Court then explained that
14 UNITED STATES v. WHITE
[t]he meaning of "physical force" in
§ 924(e)(2)(B)(i) is a question of federal law, not
state law. And in answering that question we are not
bound by a state court’s interpretation of a similar-or
even identical-state statute.

We are, however, bound by the Florida Supreme
Court’s interpretation of state law, including its
determination of the elements of Fla. Stat.
§ 784.03(2). See Johnson v. Fankell, 520 U.S. 911,
916 (1997). The Florida Supreme Court has held that
the element of "actually and intentionally touching"
under Florida’s battery law is satisfied by any inten-
tional physical contact, "no matter how slight."
Hearns, 961 So.2d, at 218. The most "nominal con-
tact," such as a "ta[p] . . . on the shoulder without
consent," id., at 219, establishes a violation. We
apply "th[is] substantive elemen[t] of the criminal
offense," Jackson v. Virginia, 443 U.S. 307, 324, n.
16 (1979), in determining whether a felony convic-
tion for battery under Fla. Stat. § 784.03(2) meets the
definition of "violent felony" in 18 U.S.C.
§ 924(e)(2)(B)(i).

Id. at 1269–70.

With the elements of battery in Florida established, the
Supreme Court proceeded to define the term "physical force"
by noting that the term "force" has "specialized legal usage
. . . [such as] describing one of the elements of the common-
law crime of battery." Id. at 1270. However, the Court
rejected application of that "common-law term of art" because
it would be improper in the context of § 924(e)(2)(B) —
"[h]ere we are interpreting the phrase ‘physical force’ as used
in defining not the crime of battery, but rather the statutory
category of ‘violent felon[ies].’" Id. The Court concluded that
"in the context of a statutory definition of ‘violent felony,’ the
phrase ‘physical force’ means violent force-that is, force capa-
 UNITED STATES v. WHITE 15
ble of causing physical pain or injury to another person." Id.
at 1271. In other words, the Court rejected the Government’s
argument that de minimis force, as in an offensive touching
without injury in battery, could be construed as "physical
force."

The Supreme Court also specifically rejected the Govern-
ment’s argument that § 922(g)(8)(C)(ii) illustrated a Congres-
sional intent that the term "physical force" in other statutes
should be taken to mean all forms of force no matter how
minimal. As in Nason and Griffith, the Government con-
tended in Johnson that Congress knew how to limit what con-
stitutes "physical force" when it wished because it did so in
§ 922(g)(8)(C). That statute makes it a felony to possess a
firearm when under a court order that "restrains such person
from . . . threatening an intimate partner," § 922(g)(8)(B), and
the order "by its terms explicitly prohibits the use . . . of phys-
ical force against such intimate partner . . . that would reason-
ably be expected to cause bodily injury." § 922(g)(8)(C)(ii).
The Government argued that since the ACCA contained no
"bodily injury" qualifier to the term "physical force," then the
term "physical force" must include all force no matter how
minimal, as in an offensive touching under common law bat-
tery. The Supreme Court disagreed.

The absence of such language in § 924(e)(2)(B)(i),
the Government contends, proves that the merest
touch suffices. Even as a matter of logic that does
not follow. Specifying that "physical force" must rise
to the level of bodily injury does not suggest that
without the qualification "physical force" would con-
sist of the merest touch.

Id. at 1272.

The Supreme Court’s conclusion in Johnson that "the
phrase ‘physical force’ means violent force," id. at 1271, was
foreshadowed by its decision in Leocal v. Ashcroft, 543 U.S.
16 UNITED STATES v. WHITE
1 (2004). In that case the Supreme Court interpreted the statu-
tory definition of ‘crime of violence’ in 18 U.S.C. § 16 which,
like the ACCA and § 921(a)(33)(A)(ii), "has as an element the
use . . . of physical force against the person or property of
another." § 16(a). In Leocal the Supreme Court explained that

[i]n construing both parts of § 16, we cannot forget
that we ultimately are determining the meaning of
the term ‘crime of violence.’ The ordinary meaning
of this term, combined with § 16’s emphasis on the
use of physical force against another person (or the
risk of having to use such force in committing a
crime), suggests a category of violent, active crimes.
. . ."

543 U.S. at 11.

While in Johnson the Supreme Court declined to respond
to the Government’s inquiry as to whether "physical force" in
§ 921(a)(33)(A) would have the same meaning as under
§ 924(e)(2)(B), it did so because "[t]he issue is not before us,
so we do not decide it." 130 S. Ct. at 1273. However, the
force of the Supreme Court’s reasoning in Johnson and Leo-
cal as to the meaning of "physical force" for § 922(g)(9) pur-
poses is compelling if not overwhelming.

We see little, if any, distinction between the "physical
force" element in a "crime of violence" in § 16 under Leocal,
a "violent felony" under § 924(e) in Johnson and a "misde-
meanor crime of domestic violence" in § 922(g)(9) in the case
at bar. All these statutes describe an act of "violence" and
require the identical element of that violent act to include
"physical force." A "crime of violence" is a "violent, active
crime" and a "violent felony" requires "violent force." We see
no principled basis upon which to say a "crime of domestic
violence" would include nonviolent force such as offensive
touching in a common law battery.
 UNITED STATES v. WHITE 17
The adjective "domestic" only informs the analysis by lim-
iting a predicate offense under § 922(g)(9) to crimes commit-
ted by those with a special relationship to the victim. This
relationship is not an element of the offense, Hayes, 129 S.
Ct. at 1084, and does not assist the analysis about a crime of
violence. Similarly, the "misdemeanor" provision under
§ 922(g)(9) describes the punishment status of the predicate
offense and has no bearing on the statutory mandate of a
crime of violence.

For these reasons, we apply to § 921(a)(33)(A)(ii) the same
meaning of "physical force" adopted by the Supreme Court in
Johnson — "the phrase ‘physical force’ means violent force-
that is, force capable of causing physical pain or injury to
another person." Johnson, 130 S. Ct. at 1271. In doing so, it
is clear that "physical force," so defined, is not an element of
assault and battery under the well-established law of Virginia.
See cases cited supra at 6-8. Therefore, White’s conviction
under VA CODE ANN. § 18.2-57.2 is not, on its face, a "mis-
demeanor crime of domestic violence" under § 922(g)(9)
because the Virginia statute is not an "offense that . . . has, as
an element, the use or attempted use of physical force."4
4
In reaching this conclusion, we reject, as did the Supreme Court in
Johnson, the Government’s argument that "physical force" in § 922(g)(9)
should have a broader scope and include the offensive touching in com-
mon law battery because § 922(g)(8)(C)(ii) specifically limits "physical
force" to that "which would reasonably be expected to cause bodily
injury." We do not see divining an unstated Congressional intent to the
meaning of "physical force" in § 922(g)(9) any differently than the
Supreme Court saw with that term in § 924(e). That the terms relate to the
same general Code section, § 922, is of no moment. As the Supreme Court
noted in Johnson, "this is not a case where Congress has ‘include[d] par-
ticular language in one section of a statute but omit[ted] it in another sec-
tion of the same Act.’" 130 S. Ct. at 1272 (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)). Section 922(g)(9) was adopted in 1996 as
an amendment to the Omnibus Consolidated Appropriations Act of 1997
while § 922(g)(8)(C) was enacted by the Congress in 1994 as part of the
Violent Crime Control and Law Enforcement Act. Clearly, the enactments
were not part of the same Act. Compare Pub. L. No. 104-208, § 658, 110
Stat. 3009, with Pub. L. No. 103-322, § 110401, 108 Stat. 2015 (1994).
18 UNITED STATES v. WHITE
III.

The Government argues that in the event we determine, as
we have, that VA CODE ANN. § 18.2-57.2 does not contain,
as an element, the use of "physical force," "[i]t is no answer
to say that a modified categorical approach may be used and
that the United States may prove that actual physical injury
occurred through materials identified in Shepard v. United
States, 544 U.S. 13 (2005)."5 Br. of Appellee at 15. The Gov-
ernment made the same argument in Johnson, contending the
Court’s definition of "physical force" will "undermine [the
Government’s] ability to enforce the firearm disability in
§ 922(g)(9)." Johnson, 130 S. Ct. at 1273. We reject the Gov-
ernment’s argument here for the same reason the Supreme
Court did so in Johnson, because it

exaggerates the practical effect of our decision.
When the law under which the defendant has been
convicted contains statutory phrases that cover sev-
eral different generic crimes, some of which require
violent force and some of which do not, the "‘modi-
fied categorical approach’" that we have approved,
Nijhawan v. Holder, 557 U.S. ___, ___, 129 S.Ct.
2294, 2302 (2009), permits a court to determine
which statutory phrase was the basis for the convic-
5
"In assessing whether an offense constitutes [a] predicate offense, two
types of analyses are potentially applicable-known as the ‘categorical’
approach and the ‘modified categorical’ approach." United States v. Har-
cum, 587 F.3d 219, 222 (4th Cir. 2009). The categorical approach requires
us to analyze the offense "generically-that is, by relying solely on its
essential elements, rather than on the particular underlying facts." United
States v. White, 571 F.3d 365, 368 (4th Cir. 2009). "This categorical
approach requires courts to choose the right category. And sometimes the
choice is not obvious." Chambers v. United States, ___ U.S. ____, 129 S.
Ct. 687, 690 (2009). However, despite the Supreme Court’s "preference
for the categorical approach, that approach does not always reveal the
nature of the asserted predicate offense encountered by a sentencing
court." Harcum, 587 F.3d at 223. In those "narrow range of cases," Taylor,
495 U.S. at 602, a "modified categorical approach" may be used.
 UNITED STATES v. WHITE 19
tion by consulting the trial record-including charging
documents, plea agreements, transcripts of plea col-
loquies, findings of fact and conclusions of law from
a bench trial, and jury instructions and verdict forms.
See Chambers v. United States, 555 U.S. ___, ___,
129 S.Ct. 687, 691 (2009); Shepard, 544 U.S. at 26;
Taylor v. United States, 495 U.S. 575, 602 (1990).
Indeed, the Government has in the past obtained
convictions under the Armed Career Criminal Act in
precisely this manner. See, e.g., United States v.
Simms, 441 F.3d 313, 316-317 (C.A.4 2006) (Mary-
land battery); cf. United States v. Robledo-Leyva,
307 Fed. Appx. 859, 862 (5th Cir.) (Florida battery),
cert. denied, 558 U.S. ___, 130 S.Ct. 64; United
States v. Luque-Barahona, 272 Fed. Appx. 521, 524-
525 (7th Cir. 2008) (same).

It may well be true, as the Government contends,
that in many cases state and local records from bat-
tery convictions will be incomplete. But absence of
records will often frustrate application of the modi-
fied categorical approach-not just to battery but to
many other crimes as well. See, e.g., Shepard, supra,
at 22-23, 125 S.Ct. 1254 (burglary).

130 S. Ct. at 1273.

We now turn to the record in this case under the modified
categorical approach to discern if a basis exists to support
White’s conviction. As we explained in United States v. Har-
cum, 587 F.3d 219 (4th Cir. 2009):

when the fact of conviction and the statutory defini-
tion of the offense are unduly vague or ambiguous,
a sentencing court is entitled to turn to and apply the
alternative "modified categorical" approach. In its
1990 Taylor decision, for example, the Supreme
Court was unable, under the categorical approach, to
20 UNITED STATES v. WHITE
determine whether Taylor’s burglary offense quali-
fied as a "violent felony" under the ACCA, because
the record did not reflect which specific state bur-
glary statute was applicable, and not all of the state’s
burglary statutes involved criminal conduct that
would qualify as an ACCA violent felony [because
it did not involve the use or attempted use of physi-
cal force]. Thus, the Court recognized that a sentenc-
ing court is entitled, in the proper circumstances, to
go beyond the scope of the categorical approach and
assess the underlying charging documents or jury
instructions to ascertain whether the offense qualifies
as an ACCA predicate offense.

587 F.3d at 223 (citations omitted).

The circumstances in this case require application of the
modified categorical approach because, although we know the
specific state statute applicable to White’s conviction, we do
not know whether that conviction was based on an "offensive
touching" or the use of "physical force." See United States v.
Rivers, 595 F.3d 558, 564 (4th Cir. 2010) (stating, in the con-
text of the ACCA, that "the modified categorical approach
most naturally applies to statutes which proscribe different
types of behavior constituting separate crimes"). As we
explained earlier, due to Virginia’s reliance on the common
law requirements for assault and battery, a court cannot sim-
ply look at "the fact of conviction and the statutory definition
of the offense of conviction to determine whether the offense
is a [misdeameanor crime of domestic violence]." Id. at 222.

Applying the modified categorical approach to the facts of
this case, we need not decide whether the executed arrest war-
rant in the record from White’s state court conviction may be
considered a "charging document" because, even if it could be
so construed, nothing in that document, or any other part of
the record, would enable us to determine whether White’s
 UNITED STATES v. WHITE 21
assault and battery conviction involved the use of "physical
force."

IV.

We thus conclude that the phrase "physical force" in
§ 921(a)(33)(A)(ii) means force, greater than a mere offensive
touching, that is capable of causing physical pain or injury to
the victim. Accordingly, a conviction for assault and battery
in Virginia does not require "physical force" as an element of
the crime. As a consequence, a Virginia conviction for assault
and battery under VA CODE ANN. § 18.2-57.2, in and of
itself, does not meet the definition of a § 922(g)(9) "misde-
meanor crime of domestic violence." Applying the "modified
categorical approach" outlined in Taylor v. United States, 495
U.S. 575 (1990) and Shepard, the record is devoid of any
qualifying documentation to show White’s conviction under
VA CODE ANN. § 18.2-57.2 was otherwise "a misdemeanor
crime of domestic violence" under § 922(g)(9). We therefore
reverse White’s conviction and vacate his sentence.6

REVERSED AND VACATED

6
Aside from White’s claim that his underlying state conviction did not
constitute a "misdemeanor crime of domestic violence," he made addi-
tional arguments on appeal. Due to our disposition of this case it is unnec-
essary to address these remaining issues.