United States v. Barnes, John

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 2002 Decided July 23, 2002

No. 01-3048

United States of America,
Appellee

v.

John Donald Barnes,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 00cr00295-01)

Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for the appellant. A. J. Kramer, Federal
Public Defender, was on brief. Gregory L. Poe, Assistant
Federal Public Defender, entered an appearance.

Jeannie S. Rhee, Assistant United States Attorney, argued
the cause for the appellee. Roscoe C. Howard, Jr., United
States Attorney, and John R. Fisher, Roy W. McLeese III

and Barry Wiegand, Assistant United States Attorneys, were
on brief.

Before: Sentelle, Henderson and Randolph, Circuit
Judges.

Opinion for the court filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Sentelle.

Karen LeCraft Henderson, Circuit Judge: John D.
Barnes (Barnes) appeals his conviction under 18 U.S.C.
s 922(g)(9), which makes it unlawful for a person convicted of
a "misdemeanor crime of domestic violence" to possess fire-
arms or ammunition. Barnes challenges whether his 1998
assault conviction under D.C. Code s 22-504(a) constitutes a
"misdemeanor crime of domestic violence" as defined in 18
U.S.C. s 921(a)(33)(A) because section 22-504(a) does not
include as an express element of the offense any relationship
between the offender and the victim. Our sister circuits that
have addressed this question have rejected Barnes's reading
of section 921(a)(33)(A). It is an issue of first impression for
us. Barnes also raises several constitutional challenges to his
firearms conviction. While section 921(a)(33)(A) is not a
paradigm of precise draftsmanship, we nonetheless join the
other circuits in concluding that section 921(a)(33)(A) does not
require the predicate "misdemeanor crime of domestic vio-
lence" to contain as an express element a relationship be-
tween the offender and his victim.

I.

On August 5, 1997 Barnes was charged in D.C. Superior
Court with assault under D.C. Code s 22-504(a).1 The
charging information alleged that on or about July 21, 1997
Barnes unlawfully assaulted Keisha Ellis, who, Barnes ulti-
mately acknowledged, is his son's mother. See Charging

__________
1 Section 22-504(a) of the D.C. Code, now codified at s 22-404(a)
(2001), stated: "Whoever unlawfully assaults, or threatens another
in a menacing manner, shall be fined not more than $1,000 or be
imprisoned not more than 180 days, or both." The recodification
did not change the language.

Information in No. M-11747-97; January 14, 1998 Transcript
in No. M-11747-97 at 16. After pleading guilty to the
charge, Barnes was sentenced to a prison term of 180 days,
execution of which was suspended on the condition of a one-
year period of probation. The judgment and commit-
ment/probation order required Barnes to observe standard
conditions of probation and, in particular, to enroll in and
complete the local court's domestic violence intervention pro-
gram. See May 5, 1998 Judgment and Commitment Order at
1.

On August 17, 2000 an officer of the Metropolitan Police
Department observed a vehicle being driven by Barnes. A
paper trash bag obscured the right rear vent window. See
8/22/00 Tr. at 6. Believing that the car was stolen, the officer
made a traffic stop and ran a search on Barnes's driver's
license. The search revealed that he did not have a valid
license. Upon placing Barnes under arrest for driving with-
out a permit, the police officer conducted a search and
discovered that Barnes had two .45 caliber bullets in his left
pocket. See 8/22/00 Tr. 6-7. Another officer, who arrived at
the scene before Barnes's arrest, searched the car and found
a loaded and operable Sig Sauer .45 caliber pistol underneath
the driver's seat. After a records check revealed that Barnes
had been convicted of assault under D.C. Code s 22-504(a),
see D.C. Superior Court Case No. M-11747-97, Barnes was
charged with the unlawful and knowing receipt and posses-
sion of a firearm and ammunition in violation of 18 U.S.C.
s 922(g)(9). See Information in Cr. No. 00-295. On October
6, 2001 pursuant to a plea agreement, Barnes entered a
conditional guilty plea to the one-count criminal information.
In accordance with Fed. R. Crim. P. 11(a)(2), his plea agree-
ment explicitly reserved his right to challenge whether his
May 5, 1998 assault conviction constituted a "misdemeanor
crime of domestic violence" as defined in 18 U.S.C.
s 921(a)(33)(A). Plea Agreement in United States v. Barnes,
Cr. No. 00-0295 at 2.

On February 1, 2001 Barnes filed a brief in district court,
raising the statutory claim explicitly reserved in his plea
agreement, see February 1, 2001 Defendant's Memorandum

of Law (App. 20-58), along with an unopposed motion to
supplement that claim with several constitutional arguments.
See February 1, 2001 Defendant's Unopposed Motion to
Supplement (App. 16-19). Barnes maintained that his assault
conviction under D.C. Code s 22-504(a), which "does not
include the relational element set forth in 18 U.S.C.
s 921(a)(33)(A)," does not qualify as a "misdemeanor crime of
domestic violence" under section 922(g)(9). February 1, 2001
Defendant's Memorandum of Law at 3-6 (App. 22-25). He
also claimed that his conviction violated "principles of equal
protection contained in the Due Process Clause of the Fifth
Amendment" and that section 922(g)(9), read in conjunction
with 18 U.S.C. s 921(a)(33)(A), was "unconstitutionally
vague." Id. at 6-7. The government opposed Barnes's
claims. See February 27, 2001 Government Memorandum of
Law (App. 59-66).

On March 19, 2001 the district court held that Barnes's
"conviction in the Superior Court of the District of Columbia
in Criminal Case No. M-11747-97 for simple assault under
D.C. Code s 22-504 constitutes a 'misdemeanor crime of
domestic violence' within the meaning of 18 U.S.C.
s 921(a)(33)(A) and can thus serve as a predicate for convic-
tion under 18 U.S.C. s 922(g)(9)." March 19, 2001 Order at 1
(App. 76). Regarding the statutory question, the district
court adopted the reasoning of the First and Eighth Circuits,
stating that "[h]ad Congress intended to require the prosecu-
tion to prove as elements of the offense both the use of force
and the relationship of the defendant to the victim, it surely
could have done so by using the plural, 'elements,' rather than
the singular, 'element,' when writing s 921(a)(33)'s definition
of a misdemeanor crime of domestic violence." See March 19,
2001 Memorandum Opinion at 4 (citing United States v.
Meade, 175 F.3d 215, 218-20 (1st Cir. 1999), and United
States v. Smith, 171 F.3d 617, 619-20 (8th 1999)). The
district court also rejected Barnes's constitutional challenges.
See March 19, 2001 Memorandum Opinion at 7-11. On April
17, 2001 the district court sentenced Barnes to a term of
imprisonment of twelve months and one day, followed by two
years' supervised release as well as a special assessment of

$100. 4/17/01 Tr. 7. Barnes filed a timely notice of appeal
and the district court stayed execution of the sentence pend-
ing appeal.

II.

Because the district court's ruling involved solely questions
of law, our review is de novo. See Butler v. West, 164 F.3d
634, 639 (D.C. Cir. 1999) (citations omitted); United States v.
Popa, 187 F.3d 672, 674 (D.C. Cir. 1999) (citations omitted)
(first amendment challenge subject to de novo review).

A. Elements of "Misdemeanor Crime of Domestic Violence"

In 1996, the Congress amended the Gun Control Act of
1968, 18 U.S.C. s 922 (1994), by providing that:

It shall be unlawful for any person ... who has been
convicted in any court of a misdemeanor crime of domes-
tic violence, ... to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate commerce.

18 U.S.C. s 922(g)(9). Section 921 of Title 18, entitled "Defi-
nitions," provides in pertinent part:

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,
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 person who is cohabitat-
ing with or has cohabitated with the victim as a spouse,
parent, or guardian, or by a person similarly situated to a
spouse, parent, or guardian of the victim

18 U.S.C. s 921(a)(33)(A).2

Barnes asserts that the definition of "misdemeanor crime of
domestic violence" set forth in section 921(a)(33)(A) requires
the predicate offense to "contain, 'as an element,' not only the
'use or attempted use of physical force ...' but also that the
use of force be 'committed by' a person who maintained a
domestic relationship with the victim, as specifically defined
in the statute." See Barnes's Br. at 7-8. The government
responds that "the text and legislative purpose" demonstrate
that section 921(a)(33)(A) "does not require that the neces-
sary domestic relationship be established as an element of the
predicate offense." Gov't Br. at 12-13.

In construing a statute, we look first for the plain meaning
of the text. If the language of the statute has a "plain and
unambiguous meaning," our inquiry ends so long as the
resulting "statutory scheme is coherent and consistent." See
United States v. Wilson, 290 F.3d 347, 352 (D.C. Cir. 2002)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(internal quotations omitted)). Whether statutory language
is plain depends on "the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole." Id. (quoting Robinson, 519 U.S. at 341).

Both sides agree that D.C. Code s 22-504(a) constitutes a
"misdemeanor under ... State Law" within the meaning of
section 921(a)(33)(A)(i). Barnes and the government also
agree that section 921(a)(33)(A)(ii) requires that a "misde-
meanor crime of domestic violence" contain "as an element"
"the use or attempted use of physical force, or the threatened
use of a deadly weapon." 18 U.S.C. s 921(a)(33)(A)(ii).
Moreover, there is no dispute that section 22-504(a) of the
D.C. Code contains a similar element.3 It also appears

__________
2 Section 924(a)(2) of Title 18 provides that "[w]hoever knowingly
violates ... [922(g)(9)] shall be fined as provided in this title,
imprisoned not more than 10 years or both." See 18 U.S.C.
s 924(a)(2).

3 Assault under D.C. Code s 22-504(a) consists of: "(1) an act on
the part of the accused (which need not result in injury); (2) the
apparent present ability to injure the victim at the time the act is

undisputed that Barnes and the victim of his assault, Keisha
Ellis, had a son together at the time of the assault and thus
share one of the domestic relationships included in section
921(a)(33)(A)(ii) ("committed ... by a person with whom the
victim shares a child in common"). See February 1, 2001
Defendant's Memorandum of Law at 2 ("Mr. Barnes shares a
child in common with the complaintant [sic] in M-11747-97")
(App. 21); February 1, 2001 Defendant's Memorandum of
Law Exh. 3 at 16 (App. 45) and 22 (App. 51). Barnes
contends, however, that the applicable relationship is an
express element of the predicate offense because the prohibit-
ed "use of force" must be "committed" by a person with that
relationship. Having been convicted of assault under D.C.
Code s 22-504(a), which does not require a relationship be-
tween offender and victim, Barnes argues that his subsequent
possession of a firearm is not prohibited by section 922(g)(9)
because he has not been convicted of a "misdemeanor crime
of domestic violence." While the domestic relationship re-
quirement of section 921(a)(33)(A)(ii) must unquestionably be
established in a section 922(g)(9) prosecution, the dispute here
is whether the predicate offense must itself expressly include
the requirement.

The premise of Barnes's reading of section 921(a)(33)(A)(ii)
is that the "committed by" language modifies the "use of
force" clause immediately preceding it and thus is included in
the "element" that a "misdemeanor crime of domestic vio-
lence" must contain. Barnes refers to what is known as the
"Rule of the Last Antecedent," whereby "[o]rdinarily, qualify-
ing phrases are to be applied to the words or phrase immedi-
ately preceding and are not to be construed as extending to
others more remote." United States v. Pritchett, 470 F.2d
455, 459 & n.9 (D.C. Cir. 1972). Accordingly, Barnes argues
that the "committed by" phrase modifies the "use of force"
element because the latter immediately precedes the former

__________
committed; and (3) the intent to perform the act which constitutes
the assault at the time the act is committed." Ruffin v. United
States, 642 A.2d 1288, 1295 (D.C. 1994) (citing Criminal Jury
Instructions for the District of Columbia, No. 4.07 (4th ed. 1993)).

within subpart (ii). As was noted in Pritchett, however, "the
Rule of Last Antecedent is not an inflexible rule, and is not
applied where the context indicates otherwise." Id. at 459.
Here, context is everything. Bearing in mind that, "when
construing a statute, we are obliged to give effect, if possible,
to every word Congress used," Murphy Exploration & Prod.
Co. v. U.S. Dept. of Interior, 252 F.3d 473, 481 (D.C. Cir.
2001) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979)); see also Alabama Power Co. v. EPA, 40 F.3d 450,
455 (D.C. Cir. 1994) ("[s]tatutory text is to be interpreted to
give consistent and harmonious effect to each of its provi-
sions"), we must determine if "committed by" can, consistent
with its meaning, modify "use of force." The verb "commit"
means "to do (something wrong or reprehensible), to perpe-
trate, be guilty of (a crime or offence, etc.)." Oxford English
Dictionary 559 (2d ed. 1989) (emphasis added). The use of
force is not "committed," "done" or "perpetrated."4 An "of-
fense" is "committed" or "perpetrated." And here, the of-
fense of a "misdemeanor crime of domestic violence" must be
committed by a person in one of the specific relationships.
Subpart (ii) of section 921(a)(33)(A) is not a complete sen-
tence--subsection 921(a)(33)(A) is itself one sentence that
begins with "[e]xcept as otherwise provided in subparagraph
(C), the term 'misdemeanor crime of domestic violence' means
an offense that--" and continues through subparts (i) and
(ii).5 In short, a "misdemeanor crime of domestic violence"
means an offense that is a misdemeanor, has, as an element,
the use of force and was committed by a person with the
requisite relationship. An illustration using simpler language
demonstrates the point. If the statute read

"larceny means an offense that has, as an element,
monetary gain, committed by a person ...,"

it would be obvious that "committed" modifies "offense" and
that monetary gain is the only "element." Just as "monetary

__________
4 While "commit" can also mean "obligate" or "pledge" as in "the
President committed to the use of force," that meaning is plainly
inapplicable. Oxford English Dictionary 560.

5 Interestingly, the sentence has no punctuation mark at the end.

gain" is not "committed," the "use of force" is not "commit-
ted." The "offense" is "committed."6

Barnes argues that if the Congress had intended the
predicate offense to include only the "use of force" as an
express element, it would have inserted the words "and was"
before "committed by" and placed the remainder of (ii) in a
subpart numbered (iii). Barnes Br. at 11. Needless to say, if
the Congress had more precisely articulated its intention, our
task would have been easier. In interpreting a statute,
however, we are to determine its true, natural meaning,
where ascertainable, irrespective of cumbersome syntax. See
United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979)
("or" read as conjunctive because "strict grammatical con-
struction will frustrate legislative intent" evinced by legisla-
tive history and statutory purpose); United States Nat'l
Bank of Oregon v. Indep. Ins. Agents of America, Inc., 508
U.S. 439, 454-55 (1993) (purported "plain-meaning" analysis
based only on punctuation inadequate where "deployment of
quotation marks" points in one direction and "all of the other
evidence from the statute points the other way"); cf. United
States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83
(1932) ("To determine the intent of the law, the court, in
construing a statute will disregard the punctuation, or will
repunctuate, if that be necessary, in order to arrive at the

__________
6 In section 921(a)(33)(A)(ii), the word "committed" is a past
participle used adjectivally to modify the noun "offense." "[O]f-
fense" is a predicate nominative referring to the subject of the
sentence "the term 'misdemeanor crime of domestic violence.' "
"[U]se of force" is the direct object of the verb "has," which here
means "includes" or "contains." Merriam-Webster's Third New
International Dictionary 1039 (1993). The phrase "as an element"
adjectivally modifies "use of force." See generally Martha Kolln,
Understanding English Grammar 21-53 ("Sentence Patterns") (4th
Ed. 1994). Indeed, the entire "committed by" phrase can be
construed to modify the language that begins with "offense."
Again, a simpler sentence will demonstrate: "Act 284 is a law that
deals with robbery, enacted by the legislature in 1975." In this
sentence, "enacted by the legislature in 1975" can modify both "a
law" as well as "a law that deals with robbery."

natural meaning of the words employed."). In a Ninth
Circuit decision, Longview Fibre Co. v. Rasmussen, 980 F.2d
1307 (9th Cir. 1992), the court analyzed the following lan-
guage of the Clean Water Act: "in approving or promulgating
any effluent limitation or other limitation under section 1311,
1312, 1316, or 1345 of this title." Id. at 1310 (quoting 33
U.S.C. s 1369(b)(1)(E)). The critical question, the court de-
clared, was "[d]oes the modifier reach back?" In other
words, do the listed sections modify "other limitation" only or
"any effluent limitation" as well? It first noted that "[g]ram-
matically, either interpretation could be correct, and the
[first] interpretation would more likely be right. 'Subor-
dinate clauses should be placed near the words they modify.'
Margaret Shertzer, The Elements of Grammar 47 (1986).
That is why we say, 'As I was flying into Ketchikan, I saw a
pod of whales,' not 'I saw a pod of whales flying into Ketchi-
kan.' " Id. at 1310-11. In concluding that the modifier does
indeed reach back, the court stated:

Syntax cannot always control construction. The legisla-
tive process may have subordinated clear writing to some
other goal. We must examine the meaning of the words
to see whether one construction makes more sense than
the other as a means of attributing a rational purpose to
Congress. Read for rational purpose, the syntactically
disfavored construction of section 1369(b)(1)(E) is sensi-
ble, the other as unlikely as the flying whales.

Id. at 1311. The fact that the Congress somewhat awkwardly
included the "committed by" phrase in subpart (ii) (instead of
adding a subpart (iii)) is not significant in view of the unnatu-
ral reading that would result if "committed by" were con-
strued to modify "use of force."7

The dissent questions the majority's adoption of a construc-
tion of section 921(a)(33)(A)(ii) that was not advanced by the

__________
7 In fact, if the Rule of Last Antecedent were literally applied,
"committed by" would modify "threatened use of a deadly weapon."
Would Barnes prevail if he then argued that he cannot be convicted
under section 922(g)(9) because the underlying assault did not
involve a deadly weapon?

government, namely that "committed" modifies "offense."
See Dissent op. at 3-4. But the meaning of the statute is "the
issue ... properly before the court," Kamen v. Kemper Fin.
Servs., Inc., 500 U.S. 90, 99 (1991),8 and thus "the court ...,
retains the independent power to identify and apply the
proper construction of governing law." Id. (emphasis added).
Alluding briefly to the merits, the dissent rejects what it
refers to as "the majority's ipse dixit." Dissent op. at 4.
"Ipse dixit" means a "bare assertion resting on the authority
of an individual." Black's Law Dictionary 961 (4th ed. 1968).
The "individuals" on whose authority the majority rests for
the meaning of "committed" are the Oxford English Dictio-
nary and Merriam-Webster's Third New International Dic-
tionary. See supra at 8. Our dissenting colleague declares
that it "cannot be gainsaid that the language of this statute is
ambiguous," adding that the majority opinion is "rife with
allusions to its ambiguity." Dissent op. at 2. The dissent has
not read the majority opinion carefully. As the foregoing
discussion manifests, we refer to imprecision (not "ambigui-
ty") only in connection with the syntax of the statute, not
with the meaning of the language used.

That the district court as well as every other court that has
considered the issue concluded, albeit on a different basis,
that section 921(a)(33)(A)'s language plainly requires only one
element, i.e., the use of force, further bolsters our interpreta-
tion. See March 19, 2001 Memorandum Opinion at 4; United
States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000)
(concluding that conviction under 18 U.S.C. s 113(a)(4), gen-
eral assault statute for U.S. territories, constitutes "misde-
meanor crime of domestic violence"); United States v. Meade,
175 F.3d 215, 218-19 (1st Cir. 1999) (defendant's state misde-
meanor conviction for assaulting his spouse, under Massachu-
sett's general assault and battery statute, is "misdemeanor
crime of domestic violence," within 18 U.S.C.

__________
8 Barnes defines the "Issue Presented for Review" as "[w]hether
[his] conviction ... must be reversed because his prior conviction
... does not constitute a 'misdemeanor crime of domestic violence,'
as defined by 18 U.S.C. s 921(a)(33)(A)...." Barnes's Br. 1-2
(emphasis added). See also Gov't Br. ix.

ss 921(a)(33)(A), 922(g)(9)); United States v. Smith, 171 F.3d
617, 620 (8th Cir. 1999) (conviction under Iowa misdemeanor
simple assault statute for defendant's assault of mother of his
child constitutes "misdemeanor crime of domestic violence");
United States v. Thomson, 134 F. Supp. 2d 1227, 1230 (D.
Utah 2001); United States v. Meade, 986 F. Supp. 66, 68 (D.
Mass. 1997); United States v. Smith, 964 F. Supp. 286, 291-
92 (N.D. Iowa); see also United States v. Ball, 7 Fed. Appx.
210, 213 (4th Cir. 2001), cert. denied, 122 S. Ct. 226 (2001)
(unpublished per curiam order). These courts found the
Congress's use of the singular "element" rather than "ele-
ments" determinative. As the district court in Meade stated:

The crux of the matter is whether the phrase "as an
element" modifies both requirements or just the use of
force requirement. The inclusion of both the use of force
and domestic relationship requirements in one sentence
does not mandate that they be treated as one element.
In drafting the statute Congress placed the singular
word "element" immediately before the use of force
requirement. In choosing the singular word "element,"
Congress intended to modify only the language immedi-
ately following the phrase. If Congress had intended
that both requirements be mandatory elements of the
underlying state statute the word "element" would have
been in the plural to encompass both requirements.
Reading the phrase "has, as an element" in its ordinary
plain meaning, it is clear the singular "element" modifies
only the use of force requirement.

Meade, 986 F. Supp. at 68. Barnes counters that if, as he
contends, the "committed by" language modifies the use of
force clause, "Congress could have reasonably viewed the two
factual requirements as a single element." Barnes Br. at 12.
Under this view, the use of the singular element is not
determinative because a qualifying "misdemeanor crime of
domestic violence" simply has one element with two subparts.
To be sure, the Congress has used the singular "element"
when referring to more than one factor in other provisions of
Title 18. See, e.g., 18 U.S.C. s 16(a) (defining "crime of
violence" as "an offense that has as an element the use,

attempted use, or threatened use of physical force against the
person or property of another"(emphasis added)). Nonethe-
less, while a "crime of violence" may have a necessarily two-
pronged single "element," namely (1) use of force (2) against
another's person or property, the singular "element" used in
section 921(a)(33)(A)(ii) is followed by two independent, and
unlinked, factors, the use of force and the perpetrator's
relationship to the victim.9 Our research has revealed that
section 921(a)(33)(A) of Title 18 appears to be the only federal
criminal statute in which the "has, as an element," language is
set off by commas. In addition, that the "committed by"
language is itself separated from the "use of force" language
by a comma (as well as by the clause "or the threatened use
of a deadly weapon") reinforces the separateness of the "use
of force" element from the "committed by" language. In
defining crimes that have more than one distinct element, the
Congress generally uses the phrase "has as its elements"
(emphasis added). See, e.g., 18 U.S.C. s 3559(2)(A) ("the
term 'assault with intent to commit rape' means an offense
that has as its elements engaging in physical contact with
another person or using or brandishing a weapon against
another person with intent to commit aggravated sexual
abuse or sexual abuse").10 While we do not necessarily find
the singular versus plural rationale determinative, it does

__________
9 While the "has as an element" language appears throughout
Title 18, it is generally used in reference to a "crime of violence"
and is defined as in 18 U.S.C. s 16(a). See, e.g., 18 U.S.C. ss 373,
924(c)(3)(A), 924(e)(2)(B)(i).

10 See also 18 U.S.C. s 3559(2)(B) ("the term 'arson' means an
offense that has as its elements maliciously damaging or destroying
any building, inhabited structure, vehicle, vessel, or real property
by means of fire or an explosive"); 18 U.S.C. s 3559(2)(C) ("the
term 'extortion' means an offense that has as its elements the
extraction of anything of value from another person by threatening
or placing that person in fear of injury to any person or kidnapping
of any person"); 18 U.S.C. s 3559(2)(D) ("the term 'firearms use'
means an offense that has as its elements those described in section
924(c) or 929(a), if the firearm was brandished, discharged, or
otherwise used as a weapon and the crime of violence or drug

support our interpretation of section 921(a)(33)(A)(ii) as re-
quiring that a "misdemeanor crime of domestic violence"
include only the use of force as an element.

We are also influenced by the fact that Barnes's interpreta-
tion of section 921(a)(33)(A)(ii) would create a "significant
practical anomaly," rendering the law a nullity in a majority
of the states as well as at the Federal level. Meade, 175 F.3d
at 220. A "statute should ordinarily be read to effectuate its
purposes rather than frustrate them." See, e.g., Motor Vehi-
cle Mfrs. Ass'n of U.S., Inc. v. Ruckelshaus, 719 F.2d 1159,
1165 (D.C. Cir. 1983) (citations omitted).11 Section 922(g)(9)
of Title 18, known as the "Lautenberg Amendment," 142
Cong. Rec. D927-02, *D928 (1996), was enacted in order to
remedy the nationwide problem that those convicted of a
felony involving domestic assault were prohibited from fire-
arms possession while those convicted of a misdemeanor
involving domestic assault were not. In explaining the law's
disparate treatment of a person convicted of a domestic
assault misdemeanor, Senator Lautenberg stated:

__________
trafficking crime during and relation to which the firearm was used
was subject to prosecution in a court of the United States or a court
of a State, or both"); 18 U.S.C. s 3559(2)(E) ("the term 'kidnapping'
means an offense that has as its elements the abduction, restrain-
ing, confining, or carrying away of another person by force or
threat of force"); see also 42 U.S.C. s 14071(a)(3)(B) ("The term
'sexually violent offense' means ... an offense that has as its
elements engaging in physical contact with another person with
intent to commit aggravated sexual abuse or sexual abuse.").

11 The Bureau of Alcohol, Tobacco and Firearms takes the posi-
tion that "a misdemeanor crime of domestic violence" includes "all
misdemeanors that involve the use or attempted use of physical
force (e.g., simple assault, assault and battery) if the offense is
committed by one of the defined parties. This is true whether or
not the State statute or local ordinance specifically defines the
offense as a domestic violence misdemeanor." Department of Trea-
sury, Bureau of Alcohol, Tobacco and Firearms, Open Letter to All
State and Local Law Enforcement Officials, http://www.atf.
treas.gov/firearms/information/opltrleo.htm, (last visited June 24,
2002).

 Under current Federal law, it is illegal for persons
convicted of felonies to possess firearms. Yet, many
people who engage in serious spousal or child abuse
ultimately are not charged with or convicted of felonies.
At the end of the day, due to outdated laws or thinking,
perhaps after a plea bargain, they are, at most, convicted
of a misdemeanor.... Often acts of serious spouse
abuse are not even considered felonies.... This amend-
ment would close this dangerous loophole and keep guns
away from violent individuals who threaten their own
families[.]

142 Cong. Rec. S10377-01, *S10377-78 (1996). Fewer than
half of the states currently have a "domestic assault" statute
that expressly includes as elements both the use of force and
a specific relationship between the offender and victim.12
Most states, and the District of Columbia, charge domestic
violence offenders under general assault statutes. Under
Barnes's construction, the Congress remedied one disparity--
between felony and misdemeanor domestic violence convic-
tions--while at the same time creating a new disparity among
(and sometimes, within) states. A person who abused his
spouse in a state with a domestic assault statute would lose
the right to possess a firearm while a person who engaged in
the same conduct but was convicted of simple assault would
not. Moreover, Barnes's interpretation would make section
921(a)(33)(A)(i)'s reference to a misdemeanor under "Federal
law" a nullity because there is no federal misdemeanor that
includes both the use of force and the domestic relationship
as express elements. See, e.g., 18 U.S.C. s 113(a)(4) (misde-
meanor simple assault within maritime or territorial jurisdic-
tion of the United States).

__________
12 According to the district court in Smith, 964 F. Supp. at 293, in
1997 "only seventeen of the fifty states and Puerto Rico have a law
that would qualify under section 921(a)(33) if the domestic relation-
ship was a required element of the predicate offense." The govern-
ment asserts that the number currently stands at nineteen. See
Gov't Br. at 18 n.11 (listing statutes).

 The legislative history of the Lautenberg Amendment con-
firms what the natural meaning of the statutory language
reveals, namely that the "has as an element" language refers
solely to the use of force. We "do not resort to legislative
history to cloud a statutory text that is clear," which we
believe section 921(a)(33)(A) to be. Were it unclear, we could
look to legislative history to "shed new light on congressional
intent." U.S. Telecom Ass'n v. FBI, 276 F.3d 620, 625 (D.C.
Cir. 2002) (internal quotations omitted). In describing the
legislation's enforcement provisions, Senator Lautenberg for-
esaw the statutory construction question central to this case:

Mr. President, the final agreement does not merely make
it against the law for someone convicted of a misdemean-
or crime of domestic violence from possessing firearms.
It also incorporates this new category of offenders into
the Brady law, which provides for a waiting period for
handgun purchases. Under the Brady law, local law
enforcement authorities are required to make reasonable
efforts to ensure that those who are seeking to purchase
a handgun are not prohibited under Federal law from
doing so. Mr. President, convictions for domestic vio-
lence-related crimes often are for crimes, such as as-
sault, that are not explicitly identified as related to
domestic violence. Therefore, it will not always be possi-
ble for law enforcement authorities to determine from
the face of someone's criminal record whether a particu-
lar misdemeanor conviction involves domestic violence, as
defined in the new law.

142 Cong. Rec. S11872-01, *S11878 (1996) (emphasis added).
See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27
(1982) ("remarks ... of the sponsor of the language ultimate-
ly enacted, are an authoritative guide to the statute's con-
struction"); see also Amalgamated Transit Union v. Skin-
ner, 894 F.2d 1362, 1370 n.6 (D.C. Cir. 1990). His statements
express the unmistakable intent that a "misdemeanor crime
of domestic violence" need not expressly include a domestic
relationship element.

 The legislative history also reveals that the "has, as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon" language was added to
the statute shortly before the provision was enacted. Replac-
ing the originally proposed language that defined the predi-
cate offense as a "crime of violence," Senator Lautenberg
explained that the addition of the "as an element" language
was not intended to apply to the domestic relationship lan-
guage:

Under the final agreement, the ban applies to crimes
that have, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon.
This is an improvement over the earlier version, which
did not explicitly include within the ban crimes involving
an attempt to use force, or the threatened use of a
weapon, if such an attempt or threat did not also involve
actual physical violence. In my view, anyone who at-
tempts or threatens violence against a loved one has
demonstrated that he or she poses an unacceptable risk,
and should be prohibited from possessing firearms.

142 Cong. Rec. S11872-01.13 Based on our "natural meaning"
reading of the text, we reject Barnes's interpretation of
section 921(a)(33)(A)(ii) and conclude instead that his convic-
tion under D.C. Code s 22-504(a) qualifies as a "misdemean-
or crime of domestic violence" within the meaning of the
Lautenberg Amendment.14

__________
13 There was concern expressed 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.

14 We also reject Barnes's invocation of the rule of lenity in
construing the Lautenberg Amendment. The United States Su-
preme Court stated in Moskal v. United States, 498 U.S. 103 (1990),
that the rule of lenity is reserved for a case in which "reasonable
doubt persists about a statute's intended scope even after resort to
the language and structure, legislative history, and motivating
policies of the statute." Id. at 108 (quotations omitted). We have
no such doubt regarding section 921(a)(33)(A)(ii).

B. Vagueness

Barnes contends the district court's interpretation of sec-
tion 921(a)(33)(A)(ii) renders it unconstitutionally vague be-
cause "there is no way for a person to know from its language
whether the relational requirement is an element of the
predicate crime." Barnes Br. at 16. He further argues that
the relationship requirement itself is infirm because "a defen-
dant convicted of simple assault cannot be sure whether he or
she might later be held to be a 'guardian' of the victim ... or
'similarly situated' to a spouse, parent, or guardian of the
victim." Id. at 17. A similar argument has been rejected by
two circuit courts. See Meade, 175 F.3d at 222 (section
921(a)(33)(A)(ii) contains no ambiguity as to either persons to
whom prohibitions apply or proscribed conduct); Smith, 171
F.3d at 623 (rejecting vagueness challenge).

To decide a vagueness challenge, we must assess whether it
"either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application." United
States v. Lanier, 520 U.S. 259, 266 (1997). We have noted
before that "the Constitution does not require unattainable
feats of statutory clarity." Hutchins v. District of Columbia,
188 F.3d 531, 546 (D.C. Cir. 1999) (quotations omitted). As
the Eighth Circuit in Smith declared, "[w]e would be hard
pressed to find an individual of common, or even not so
common, intelligence who could not determine whether he
was in one of the enumerated relationships when he commit-
ted a misdemeanor crime including an element of physical
force." 171 F.3d at 623. Barnes's alternative interpretation
of the statutory text does not by itself establish vagueness.
"Since words, by their nature, are imprecise instruments,
even laws that easily survive vagueness challenges may have
gray areas at the margins." United States v. Nason, 269
F.3d 10, 22 (1st Cir. 2001) ("use of force" in s 921(a)(33)(A)(ii)
not unconstitutionally vague) (citing United States v. Wurz-
bach, 280 U.S. 396, 399 (1930)). We conclude that section
921(a)(33)(A)(ii) is sufficiently clear to reject Barnes's vague-
ness attack.

C. Due Process

Barnes further argues that section 922(g)(9) violates his
due process right under the Fifth Amendment because it does
not require the government to prove, as an element of the
offense, that he knew his possession of a firearm was illegal.
A long line of circuit courts has rejected this argument. See,
e.g., United States v. Mitchell, 209 F.3d 319, 322 (4th Cir.)
(citing Bryan v. United States, 524 U.S. 184, 192 (1992), cert.
denied, 531 U.S. 849 (2000)). Moreover, Barnes did not
adequately raise this argument below and, thus, we review it
for plain error only.15

As we already noted, section 922(g)(9) requires the defen-
dant to "knowingly" violate the statute. See supra at 4 n.2.
The Supreme Court has made clear that "the knowledge
requisite to knowing violation of a statute is factual knowl-
edge as distinguished from knowledge of the law." Bryan v.
United States, 524 U.S. 184, 192 (1998) (internal quotation
marks omitted). The Bryan Court concluded that "unless the
text of the statute dictates a different result, the term 'know-
ingly' merely requires proof of knowledge of the facts that
constitute the offense." Id. at 193. The rule in Bryan has
been applied by other circuit courts without exception in
interpreting section 924(a)(2), which requires that a section
922(g)(9) offense be "knowingly" committed. See, e.g., United
States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.), cert. denied,
527 U.S. 1029 (1999); United States v. Beavers, 206 F.3d 706,
708-09 (6th Cir.2000); United States v. Meade, 175 F.3d 215,
226 n.5 (1st Cir.1999). Barnes knowingly possessed the fire-
arm and that is the only knowledge required to convict him.
He argues, however, that section 922(g)(9) falls within the
narrow exception carved out by the holding in Lambert v.
United States, 355 U.S. 225, 228-30 (1957). See Barnes Br. at
19. Lambert involved a city ordinance that made it a crime

__________
15 Barnes raised the issue in district court at the end of his
memorandum in the last sentence of the last footnote and merely
cited a dissenting opinion in United States v. Hutzell, 217 F.3d 966,
969 (8th Cir. 2000). See February 1, 2001 Defendant's Memoran-
dum of Law at 7 n.7 (App. 26).

for any felon to remain in Los Angeles for more than five
days without registering with the police. Lambert, 355 U.S.
at 226-27. The Supreme Court reversed the defendant's
conviction on due process grounds because the city failed to
establish that the defendant had notice that her "wholly
passive conduct" could constitute a crime. Id. at 228.
Barnes contends that section 922(g)(9) is a similar statute
that subjects to criminal prosecution an individual engaged in
otherwise innocent conduct--possession of a firearm. The
salient fact in Lambert, however, was that the defendant had
no reason to know, or even to attempt to discover, that she
was required to register in order to continue living in Los
Angeles. Other circuit courts that have addressed this argu-
ment have uniformly rejected it. The Sixth Circuit's observa-
tion in United States v. Beavers is instructive:

We conclude that Beavers's conviction on a domestic
violence offense sufficiently placed him on notice that the
government might regulate his ability to own or possess
a firearm. As noted in Baker and Meade, domestic
abuse is a well-known problem, and it should not surprise
anyone that the government has enacted legislation in an
attempt to limit the means by which persons who have a
history of domestic violence might cause harm in the
future.

206 F.3d at 710. Having been convicted of a violent crime,
Barnes had reason to know that the government could regu-
late his possession of firearms and thus he cannot avail
himself of the limited Lambert exception.16

D. Equal Protection

Section 921(a)(33)(B)(ii) provides an exception to section
922(g)(9) "if the conviction has been expunged or set aside, or
is an offense for which the person has been pardoned or has
had civil rights restored (if the law of the applicable jurisdic-

__________
16 The Supreme Court has steadfastly resisted efforts to expand
Lambert's reach. See, e.g., United States v. Freed, 401 U.S. 601,
609 (1971) (declining to extend Lambert to possession of hand
grenades).

tion provides for the loss of civil rights under such an
offense)." In the District of Columbia, as in most states, an
individual convicted of a misdemeanor does not forfeit his civil
rights. Barnes argues that he is thus in a worse position
than a person convicted in a jurisdiction that authorizes the
loss of civil rights but can also restore them. Claiming that
there is no rational basis for this distinction, he asserts that
his conviction violates equal protection. See Barnes Br. at 21
(citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). His claim
is without merit.

Because domestic violence misdemeanants are not a sus-
pect class for equal protection purposes and because no
"fundamental right" is implicated, the classification will be
upheld "if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification."
Fraternal Order of Police v. United States, 173 F.3d 898, 903
(D.C. Cir.) (quotations omitted), cert. denied, 528 U.S. 928
(1999). The Congress's decision to incorporate state law
governing forfeiture of civil rights was rational irrespective of
differences among states regarding restoration. Further-
more, the Congress provided other methods such as expunge-
ment and pardon that Barnes might use to come within the
exception of section 921(a)(33). See McGrath v. United
States, 60 F.3d 1005, 1008 (2d Cir. 1995), cert. denied, 516
U.S. 1121 (1996).

For the foregoing reasons, we affirm the district court's
holding that Barnes's conviction of assault under D.C. Code
s 22-504(a) constitutes a "misdemeanor crime of domestic
violence" within the meaning of 18 U.S.C. s 921(a)(33)(A) and
thus validly serves as a predicate offense for his conviction
under 18 U.S.C. s 922(g)(9).

So ordered.

 Sentelle, Circuit Judge, dissenting: Defendant Barnes
appeals from a judgment sentencing him for the violation of a
statute which, in pertinent part, declares it "unlawful for any
person ... who has been convicted in any court of a misde-
meanor crime of domestic violence, to ... possess ... any
firearm...." 18 U.S.C. s 922(g)(9). The statute defines the
term "misdemeanor crime of domestic violence" as meaning
an offense that is a misdemeanor under federal or state law;
and "has, as an element, the use or attempted use of physical
force, or threatened use of a deadly weapon, committed by
... a person with whom the victim shares a child in com-
mon...." 18 U.S.C. s 921(a)(33)(i) & (ii).

The case before us turns on statutory interpretation. If
the language of a statute has a "plain and unambiguous
meaning," our inquiry ends so long as the resulting "statutory
scheme" is coherent and consistent. United States v. Wilson,
290 F.3d 347, 352 (D.C. Cir. 2002). As I read the federal
firearms statute at issue, Congress required that the underly-
ing misdemeanor statute of conviction must have had as an
element "the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a [specified
related person]." Barnes, according to the record in the case,
did possess a firearm and had been convicted of violating D.C.
Code s 22-504(a), which outlaws general assaults but makes
no mention of the status of any relationship between the
perpetrator and the victim. That is, the D.C. statute Barnes
previously violated does not have as an element the use of
force committed by one of the persons enumerated in 18
U.S.C. s 921(a)(33)(ii). To me, the analysis ends there. Ap-
pellant's record offense is not included within the statutory
definition, and the judgment appealed from cannot stand.

The United States argues that Congress's use of the word
"element," as opposed to "elements," means that the grava-
men of the underlying offense needs to include only the use of
force or threatened use of force with an extra-statutory
finding that the forbidden use or threat of force was commit-
ted by a person who bears the relevant relationship. This
argument has been accepted by our District Court, the major-
ity today, and at least one other circuit. See United States v.

Meade, 175 F.3d 215, 219 (1st Cir. 1999); see also United
States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999) (alluding to
the "singular term 'element' " but with little supporting or
elucidating reasoning). Nonetheless, with due respect to all
the judges who have concluded otherwise, I find the argu-
ment not only unconvincing, but largely meaningless. For
the argument today is not how many elements are involved,
but what the singular element is.

As Meade properly describes it, that singular word "ele-
ment" refers "to the immediately following attribute."
Meade, 175 F.3d at 219. Just so, but so what? The restate-
ment of "element" as "attribute" begs the question of what
single element-turned-attribute the statute requires. Just as
an element might be either simple or complex and remain a
single element, so might an attribute. For example, if a
purchaser were to express a strong desire to own a pickup
truck which has as an attribute tires manufactured by an
American company, that purchaser would not likely be satis-
fied to sign a contract of purchase specifying only that the
truck "have as an attribute tires," leaving the question of
their manufacturer for some discussion outside the contract.
We have before us something far more important than a
contract of sale. We have a penal statute. Fundamental to
our fairness-centered criminal justice system is the rule of
lenity for the interpretation of ambiguous penal statutes.
See, e.g., United States v. Singleton, 182 F.3d 7, 13 & n.12
(D.C. Cir. 1999) (collecting authorities). Under the rule of
lenity, a criminal defendant is, and should be, afforded the
benefit of the doubtful application of ambiguous statutory
language. It cannot be gainsaid that the language of this
statute is ambiguous. The majority opinion itself is rife with
allusions to its ambiguity. "[S]ection 921(a)(33)(A) is not a
paradigm of precise draftsmanship." Maj. Op. at 2. "[I]f the
statute read [otherwise], it would be obvious that 'committed'
modifies 'offense.' " Maj. Op. at 8. "If the Congress had
more precisely articulated its intention, our task would have
been easier." Maj. Op. at 9. "[T]he Congress somewhat
awkwardly included the 'committed by' phrase in subpart
(ii)." Maj. Op. at 10. The majority's grammatical and syn-

tactical analysis defending its interpretation of the statute is
quite detailed and quite skilled. But the necessity for such a
detailed and skilled analysis itself illustrates the ambiguity of
the words construed. I would apply the rule of lenity, and I
would reverse the judgment of the District Court.

The supportive arguments offered by the government are
equally unconvincing. That a snippet of legislative history is
more consistent with the less lenient application of a criminal
statute hardly erodes the laudable principles of the rule of
lenity. This proposition seems to me quite offensive to our
historic sense of fairness in criminal law, indeed, perhaps to
the Due Process Clause. Though I do not reach the constitu-
tional argument, it seems to me most inconsistent with funda-
mental fairness and certainly with the rule of lenity to
suppose that for a defendant to understand that his conduct is
illegal, he must read not only the words of the statute, but
find and construe the abstruse comments of a single senator
on a single day. See 142 Cong. Rec. 510377-01, *510377-78
(1996).

As to the argument that the statute as I would construe it
applies in fewer states than the statute as construed by the
government, I frankly do not see how this proves anything at
all. The government admits in its brief that the Supreme
Court has held repeatedly that Congress may validly and
constitutionally adopt criminal laws that apply differently in
different states based upon variances in state law. See, e.g.,
United States v. Sharpnack, 355 U.S. 286, 293 (1958) (holding
that Congress had constitutional authority to pass the Assimi-
lative Crimes Act, making state law applicable to federal
enclaves within the states, and citing other statutes that
define federal offenses based upon variances in state law);
see also United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.
1974) (the fact that federal statute prohibiting illegal gam-
bling businesses applies only in states where gambling is
illegal "does not result in a denial of equality").

Finally, the majority stresses an argument based on the
use of the word "committed" theorizing that "use of force" is
not "committed." I would note at the outset that this is an

argument not made by the parties. As a matter of first
principles, I have no problem with that fact. As I have
written before, the appropriate question is not whether an
argument is raised by the parties, but whether an issue is
properly brought before the court. " 'When an issue or claim
is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the
proper construction of governing law.' " Eldred v. Reno, 239
F.3d 372, 384 (D.C. Cir. 2001) (Sentelle, J., dissenting) (quot-
ing United States Nat'l Bank of Or. v. Indep. Ins. Agents of
Am., Inc., 508 U.S. 439, 446 (1993)). However, the majority's
reliance upon an argument not made by the parties is at least
arguably in conflict with circuit law. See Seattle Opera v.
NLRB, --- F.3d ----, slip op. at 10 & n.8 (D.C. Cir. June 11,
2002). Nonetheless, even if we treat the argument as proper-
ly before us, I find it unconvincing. I see no reason beyond
the majority's ipse dixit to conclude that the "use of force" is
not "committed" by the related person.

In short, I respectfully dissent.