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United States v. Daniels

United States District Court, N.D. Texas, Dallas Division

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER MAURICE DANIELS, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

         The principal question presented by defendant's motion to dismiss the indictment is whether, under the modified categorical approach, § 39-13-101(a)(2) of the Tennessee assault statute, which is incorporated into the Tennessee domestic assault statute, “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, ” as required to qualify as “a misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). Concluding that the use or attempted use of physical force or the threatened use of a deadly weapon is not a necessary element of a § 39-13-101(a)(2) offense, the court grants defendant's motion and dismisses the indictment.

         I

         Defendant Christopher Maurice Daniels (“Daniels”) is charged in a one-count indictment with the offense of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).[1] According to the indictment, Daniels committed this offense when he possessed two firearms after having been convicted of “domestic assault” under Tennessee law, which the indictment alleges is “a misdemeanor crime of domestic violence.”

         Daniels moves to dismiss the indictment, contending that, as a matter of law, his Tennessee conviction does not qualify as “a misdemeanor crime of domestic violence” and therefore that he cannot be guilty of violating § 922(g)(9). He maintains that “domestic assault” in Tennessee does not categorically constitute a “misdemeanor crime of domestic violence” under federal law because it encompasses conduct broader than the federal definition. Daniels posits that § 39-13-109(a)(2)-which makes it a crime in Tennessee to “[i]ntentionally or knowingly cause[] another to reasonably fear imminent bodily injury”-does not necessarily require the use or attempted use of physical force, or the threatened use of a deadly weapon; that the government cannot narrow the Tennessee domestic assault statute to a qualifying subsection because the statute is not divisible into distinct offenses; and that, even if the statute is divisible, the government cannot narrow Daniels' conviction on the record presented.

         The government responds that Tennessee's domestic assault statute is divisible, and that state court documents demonstrate that Daniels was convicted under § 39-13-109(a)(1)-a prong of the statute that United States v. Castleman, 572 U.S., 134 S.Ct. 1405 (2014), held qualifies as a misdemeanor crime of domestic violence. Alternatively, the government maintains that all of the prongs of the Tennessee assault statute categorically qualify under the federal definition of “a misdemeanor crime of domestic violence.”

         II

         Although Daniels does not specify the rule under which he moves to dismiss the indictment, the motion is properly deemed a motion under Fed. R. Crim. P. 12(b)(3)(B)(v) to dismiss the indictment for failure to state an offense. “[A] motion to dismiss an indictment for failure to state an offense is a challenge to the sufficiency of the indictment.” United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). When the court decides such a motion, it is required to “‘take the allegations of the indictment as true and to determine whether an offense has been stated.'” Id. (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)). “The propriety of granting a motion to dismiss an indictment . . . by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact . . . . If a question of law is involved, then consideration of the motion is generally proper.” United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011) (internal citation omitted). The parties do not dispute that Daniels' motion to dismiss presents a question of law. And although the government opposes the motion, it does not maintain that the motion is procedurally improper.

         III

         A

         Section 922(g)(9) of Title 18, inter alia, makes it “unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence, to . . .possess in or affecting commerce, any firearm[.]” 18 U.S.C. § 922(g)(9). As used in § 922(g)(9), “misdemeanor crime of domestic violence” means an offense that-

(i) is a misdemeanor under Federal, State, or Tribal 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 cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A) (emphasis added).

         The indictment alleges that Daniels was convicted of “Domestic Assault” under Tennessee Law.[2] In Tennessee “[a] person commits domestic assault who commits an assault as defined in § 39-13-101 against a domestic abuse victim.” Tenn. Code Ann. § 39-13-111(b) (West 2018). Section 39-13-101, in turn, provides:

(a) A person commits assault who
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

         Tenn. Code Ann. § 39-13-101 (West 2018). Tennessee law further defines “domestic abuse victim” as, inter alia, “[a]dults or minors who are current or former spouses; . . . live together or who have lived together; [or] . . . are dating or who have dated or who have or had a sexual relationship[.]” Id. at § 39-13-111(a)(1)-(3).

         B

         When determining whether an underlying state criminal offense has the requisite “elements” to qualify as a predicate offense under a federal statute such as § 922(g)(9), and the state statute is alternatively phrased, the court “follow[s] the analytic approach of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005).” Castleman, 134 S.Ct. at 1413 (examining whether state offense qualified as “misdemeanor crime of domestic violence” under § 922(g)(9) in context of motion to dismiss indictment).[3] Under this approach, the court “must determine whether the statute sets forth alternative means of committing a single substantive crime or separate elements, effectively defining distinct offenses.” United States v. Herrold, 883 F.3d 517, 521 (5th Cir. 2018) (en banc) (citing Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2249 (2016)). If the state statute prescribes alternate means of committing one offense, it is indivisible. The court follows Taylor's categorical approach, under which it only “look[s] to the statute of [Daniels'] conviction to determine whether that conviction necessarily ‘ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.'” Castleman, 134 S.Ct. at 1413 (third brackets in original) (quoting 18 U.S.C. § 921(a)(33)(A)(ii)); see also Herrold, 883 F.3d at 521 (“[W]e compare the whole [state statute] to its federal generic counterpart and determine whether any part falls outside the federal template.”). If the whole statute does not necessarily have such an element, the statute does not qualify as a predicate offense. If the categorical approach governed Daniels' case, the court would decide whether all three means of committing assault under § 39-13-101(a) necessarily have, as an element, “the use or attempted use of physical force, or the threatened use of a deadly weapon.”

         If, however, the state statute sets out separate elements, effectively defining distinct offenses, the statute is divisible. The court then applies the modified categorical approach, in which it “isolate[s] the alternative under which the defendant was convicted and appl[ies] the federal template to only that alternative.” Herrold, 883 F.3d at 522. In applying the modified categorical approach to determine the offense to which the defendant pleaded guilty, the court is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16; see also Castleman, 134 S.Ct. at 1414 (citing Shepard) (noting that the Court was “consulting the indictment to which [the defendant] pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense.”). In Daniels' case, if the court is able to isolate the provision of § 39-13-101(a) to which he pleaded guilty, then only that prong needs to have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” to qualify as “a misdemeanor crime of violence” under § 922(g)(9).

         IV

         The court will assume arguendo that § 39-13-101(a)-the assault statute incorporated into the domestic assault offense--is divisible.[4] If the government cannot defeat Daniels' motion under the modified categorical approach and a divisible statute, a fortiori it cannot do so under the categorical approach and an indivisible statute. The court will therefore apply the modified ...


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