US v. Daniels - Response To Motion To Dismiss

Case 3:18-cr-00005-D Document 27 Filed 02/07/18 Page 1 of 23 PageID 129
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA
v. No. 3:18-CR-005-D
CHRISTOPHER MAURICE DANIELS
RESPONSE TO DANIELS’S MOTION TO DISMISS
Respectfully submitted,
ERIN NEALY COX

United States Attorney
s/ John J. de la Garza III

JOHN J. DE LA GARZA III
Assistant United States Attorney
Texas Bar No. 00796455
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Telephone: (214) 659-8682
john.delagarza@usdoj.gov
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................................................................. iii
RESPONSE TO DANIELS’S MOTION TO DISMISS ..................................................... 1
1. The Tennessee assault statute is divisible, and state-court documents
demonstrate that Daniels sustained a conviction under a prong of the
Tennessee statute that indisputably qualifies as a misdemeanor crime of
domestic violence .......................................................................................... 1
A. Both Castleman and Mathis demonstrate that the Tennessee assault

statute is divisible ............................................................................... 1
B. Applying the modified categorical approach shows that Daniels

pleaded guilty to one of the prongs of the Tennessee assault statute
that Castleman held meets the federal definition of a misdemeanor
crime of domestic violence ................................................................ 7
2. Alternatively, all prongs of the Tennessee assault statute qualify under the
federal definition of misdemeanor crime of domestic violence .................... 9
CONCLUSION ................................................................................................................. 18
CERTIFICATE OF SERVICE .......................................................................................... 19
ii
TABLE OF AUTHORITIES
Federal/State Cases Page(s)
Descamps v. United States, 570 U.S. 254 (2013)............................................................ 3, 4
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ........................................................... 15
Mathis v. United States, 136 S. Ct. 2243 (2016) ......................................................... 3, 4, 5
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ................................................................... 15
Shepard v. United States, 544 U.S. 13 (2005) ..................................................................... 7
State v. Kirkland, 2014 WL 6992117 (Tenn. Crim. App. Dec. 11, 2014) .......................... 6
State v. McCaleb, 1998 WL 408620 (Tenn. Crim. App. July 22, 1998)........................... 15
Taylor v. United States, 495 U.S. 575 (1990) ..................................................................... 3
United States v. Castleman, 134 S. Ct. 1405 (2014) .................................................. passim
United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) ........................................... 11
United States v. Conde-Castaneda, 753 F.3d 172 (5th Cir. 2014) .................................. 7, 9
United States v. Hayes, 555 U.S. 415 (2009) .............................................................. 11, 12
United States v. Horse Looking, 828 F.3d 744 (8th Cir. 2016) ................................... 15, 16
United States v. Jones, 453 F.3d 777 (6th Cir. 2006).......................................................... 8
United States v. Smith, 171 F.3d 617 (8th Cir. 1999)........................................................ 16
United States v. Vinson, 794 F.3d 418 (4th Cir. 2015)........................................................ 9
United States v. White, 258 F.3d 374 (5th Cir. 2001) ....................................................... 11
Voisine v. United States, 136 S. Ct. 2272 (2016) ....................................................... passim
iii
Federal/State Statutes and Rules Page(s)
18 Pa. Cons. Stat. Ann. § 2701(a) ..................................................................................... 17
18 U.S.C. § 921(a)(33)(A) ................................................................................................... 2
18 U.S.C. § 922(g)(9) .......................................................................................................... 1
Ariz. Rev. Stat. Ann. § 13-1203 ........................................................................................ 17
Ark. Code Ann. § 5-13-207 ............................................................................................... 17
Miss. Code. Ann. § 97-3-7 ................................................................................................ 17
Mo. Ann. Stat. § 565.056(1) .............................................................................................. 17
Mo. Ann. Stat. § 565.076(1) .............................................................................................. 17
Mont. Code Ann. § 45-5-206 ............................................................................................ 17
N.J. Stat. Ann. § 2C:12-1................................................................................................... 17
Tenn. Code Ann. § 39-13-101(a) ........................................................................................ 2
Tenn. Code Ann. § 39-13-111(b) ........................................................................................ 2
Tenn. Code Ann. § 40-35-111(e) ........................................................................................ 5
Tenn. Code Ann. §§ 39-13-101(b) ...................................................................................... 7
Tennessee Code § 39-13-111 .............................................................................................. 2
Tex. Penal Code § 22.05 (1994) ........................................................................................ 11
Tenn. R. Crim. P. 3(c) ......................................................................................................... 8
Other Authority
142 Cong. Rec. S11872, S11877 ....................................................................................... 18
142 Cong. Rec. 22,985-86 ................................................................................................. 11
iv
RESPONSE TO DANIELS’S MOTION TO DISMISS
The government charged Daniels under 18 U.S.C. § 922(g)(9) with possessing a
firearm after having sustained a misdemeanor crime of domestic violence. Daniels has
moved to dismiss the indictment, arguing that his Tennessee statute of conviction does
not qualify as a misdemeanor crime of domestic violence under the definition of that term
in 18 U.S.C. § 922(a)(33)(A) because the Tennessee statute is indivisible and one of its
prongs allegedly fails to meet the federal definition. Daniels is wrong: The Tennessee
statute is divisible and, even if indivisible, the statute, as a whole, qualifies as a
misdemeanor crime of domestic violence. Thus, his claim fails.
1. The Tennessee assault statute is divisible, and state-court documents

demonstrate that Daniels sustained a conviction under a prong of the
Tennessee statute that indisputably qualifies as a misdemeanor crime of
domestic violence.
A. Both Castleman and Mathis demonstrate that the Tennessee assault

statute is divisible.
The government charged Daniels with possessing a firearm as a prohibited person
under 18 U.S.C. § 922(g)(9), which 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 or ammunition.” 18 U.S.C. § 922(g)(9). Section
921(a)(33)(A) defines a “misdemeanor crime of domestic violence” as “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
Response to Motion to Dismiss – Page 1

cohabitating 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. § 921(a)(33)(A).
The government based Daniels’s charge on a 2007 misdemeanor domestic-assault
conviction Daniels sustained in Tipton County, Tennessee. The domestic-violence law
under which Daniels was convicted, Tennessee Code § 39-13-111, provides that a person
commits domestic assault if he “commits an assault as defined in [the Tennessee assault
statute,] § 39-13-101[,] against a domestic abuse victim.” Tenn. Code Ann. § 39-13-
111(b). Section 39-13-101, in turn, provides that a person can commit assault in three
different ways:
(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to

another;
(2) Intentionally or knowingly causes another to 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(a). It further provides that a conviction under (a)(1) or
(a)(2) constitutes a Class A misdemeanor, while a conviction under (a)(3) constitutes a
Class B misdemeanor. § 39-13-101(b)(1)(A).
Daniels argues that his conviction does not qualify as a “misdemeanor crime of
domestic violence” under the federal definition in Section 921(a)(33)(A) because
Tennessee Code § 39-13-101(a) is an indivisible statute, and not every part of the statute
“has, as an element, the use or attempted use of physical force, or the threatened use of a
deadly weapon.” § 921(a)(33)(A). Thus, he claims that the Tennessee statute, viewed as
a whole, is broader than Section 921(a)(33)(A)’s definition. But both the Supreme
Court’s decision in United States v. Castleman, 134 S. Ct. 1405 (2014), and its
divisibility analysis in Mathis v. United States, 136 S. Ct. 2243 (2016), demonstrate that
the Tennessee statute is divisible.
In Castleman, 134 S. Ct. 1405, the Supreme Court concluded that a domestic-
assault charge under the exact same Tennessee statute that serves as the source of
Daniels’s conviction qualified as a misdemeanor crime of domestic violence under
Section 922(g)(9). The starting point for its analysis was its application of the categorical
approach developed in Taylor v. United States, 495 U.S. 575 (1990), “under which [the
Court] look[s] to the statute of Castleman’s 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 (quoting
§ 921(a)(33)(A)). The Court noted that the Tennessee assault provision, Section 39-13-
101, has three prongs. Id. It then determined that it “need not decide whether a domestic
assault conviction in Tennessee categorically constitutes a ‘misdemeanor crime of
domestic violence,’ because the parties do not contest that § 39-13-101 is a ‘divisible
statute.’” Id. at 1414 (emphasis added, quoting Descamps v. United States, 570 U.S. 254,
257 (2013)). It thus went on to “apply the modified categorical approach, consulting the
indictment to which Castleman pleaded guilty in order to determine whether [the prong

of the statute under which he was convicted] did entail the elements necessary to
constitute the generic federal offense.” Id.
Looking to the state-court documents, the Court noted that Castleman sustained a
conviction under (a)(1) of the Tennessee assault statute, which prohibits “caus[ing]
bodily injury to another.” Id. It then determined that the element in the federal domestic-
violence definition requiring “use of physical force” matched (a)(1)’s requirement of
intentional or knowing causation of physical injury. Id. at 1414-15. 1
As this summary of Castleman shows, the premise of the entire opinion was that
the specific statute Daniels was convicted of violating is divisible. Daniels now asks this
Court to conclude just the opposite—that the Tennessee statute is indivisible and
therefore not susceptible to modified categorical analysis. Based on Castleman, this
Court can easily reject this claim.
Even ignoring Castleman, this Court should conclude that the Tennessee statute is
divisible under Mathis v. United States, 136 S. Ct. 2243 (2016). In Mathis, the Court
held that an Iowa statute prohibiting burglary of “any building, structure, [or] land, water,
or air vehicle” was indivisible, and that the various structures and vehicles listed were
“alternative ways of satisfying a single locational element.” Id. at 2250. The Court
began its analysis by explaining that, in determining whether a statute is divisible, the
1
The opinion expressed reservation as to whether the federal definition covered “reckless”
conduct under Section 39-13-101(a)(1). Castleman, 134 S. Ct. at 1414 & n.8. It declined to
decide the issue because Castleman’s indictment alleged only intentional or knowing conduct.
See id. However, the Court later held in Voisine v. United States, 136 S. Ct. 2272 (2016), that
reckless conduct is included in the federal definition. Id. at 2277-82. Thus, all conduct in
(a)(1)—intentional, knowing, or reckless—now matches the federal definition.
first step is to look at “the statute on its face.” Id. at 2256. As part of examining the
words and structure of the statute, a court should determine “[i]f statutory alternatives
carry different punishments,” which would mean that “they must be elements” that are
divisible from one another. Id.
This step resolves the divisibility inquiry here, as the Tennessee assault statute
contains “statutory alternatives” that “carry different punishments.” The statute lists
three statutory alternatives that, unlike the locational alternatives in the Iowa statute in
Mathis, are separated into different subsections—(a)(1), (2), and (3). § 39-13-101(a). It
also provides that different punishments apply depending on the particular subsection at
issue: “Assault is a Class A misdemeanor unless the offense is committed under
subdivision (a)(3), in which event assault is a Class B misdemeanor.” § 39-13-
101(b)(1)(A). Class A misdemeanors have a statutory maximum punishment of up to 11
months and 29 days, while Class B misdemeanors have a maximum punishment of 6
months. Tenn. Code Ann. § 40-35-111(e)(1)-(2). Under Mathis, these different
punishments prove divisibility.
Mathis further instructs that, if the words and structure of the statute fail to resolve
the divisibility inquiry, courts may look to state-court cases construing the statute to
determine whether state courts have found the statute to constitute different crimes or one
crime with alternative means of commission. Mathis, 136 S. Ct. at 2256. Were there any
doubt about the Tennessee assault statute’s divisibility, Tennessee case law further
establishes that the statute is divisible. In State v. Kirkland, the Tennessee Court of
Criminal Appeals reasoned that the statute creates three separate crimes:

In codifying the crime of assault, the Tennessee Legislature

described assault offenses in three distinct ways in § 39–13–101(a)(1)–
(a)(3). The three subdivisions of § 39–13–101(a) each describe a different
type of unlawful conduct. The Legislature went so far as to state in § 39–
13–101(b) that the offenses under § 39–13–101(a)(1) and § 39–13–
101(a)(2) carry different penalties than offenses under § 39–13–101(a)(3).
It seems clear to this Court that the Legislature intended to define at

least three types of assault under the statute. Each distinct type of offense
may be distinguished from the others. The construction of this statute
allows for multiple offenses, and therefore, multiple sentences under the
law.
State v. Kirkland, No. E2013-02243-CCA-R3-CD, 2014 WL 6992117, at *3 (Tenn. Crim.
App. Dec. 11, 2014).
In sum, under Mathis’s divisibility analysis, and as the parties conceded in
Castleman, there is simply no doubt that the Tennessee assault statute is divisible.
Daniels’s contrary claim fails.
B. Applying the modified categorical approach shows that Daniels

pleaded guilty to one of the prongs of the Tennessee assault statute that
Castleman held meets the federal definition of a misdemeanor crime of
domestic violence.
Not only do Castleman and Mathis establish that the Tennessee assault statute is
divisible, this Court should apply the modified categorical approach to conclude that
Daniels was convicted under the (a)(1) “bodily injury” prong of the Tennessee statute,
which Castleman held matches the federal definition of “misdemeanor crime of domestic
violence.” 2 In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court
2
Although not relevant here, Castleman further held that assault provisions that prohibit
“offensive touching” also qualify under the federal definition of misdemeanor crime of domestic
violence, so (a)(3) of the Tennessee assault statute also qualifies. See Castleman, 134 S. Ct.
1410 (“[W]e hold that Congress incorporated the common-law meaning of ‘force’—namely,
explained that, in conducting a categorical analysis, courts may look to documents such
as the “charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.” Id. at 16. The
court may also look to any “written judicial confession” or “judgment.” United States v.
Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014).
At the outset, the judgment partially narrows Daniels’s offense of conviction. (See
App’x at 1.) It shows that the state court imposed a sentence of 11 months and 29 days,
which, under Tennessee law, means that Daniels was convicted of a Class A
misdemeanor. (See id.) This demonstrates that he was convicted under (a)(1) or (a)(2)
rather than (a)(3), because (a)(3), as a Class B misdemeanor, has a statutory maximum of
six months in jail. Tenn. Code Ann. §§ 39-13-101(b)(1)(A), 40-35-111(e)(1)-(2).
The charging document and relevant plea documents further narrow the statutory
prong of conviction. The applicable charging document—indeed, the only charging
document—was an “affidavit of complaint.” 3 (See App’x at 2.) The affidavit of
complaint charged Daniels with “domestic assault” and described the “essential facts
offensive touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic

violence.’”).
3
Although the Fifth Circuit has not determined whether an affidavit of complaint is a Shepard-
approved document, the Sixth Circuit—which covers Tennessee and is familiar with Tennessee
charging practice—has held that “[a]n affidavit of complaint is a type of record that a district
court can properly rely on in determining the nature of predicate offenses, consistent with the
standard of Shepard. . . . Complaints are judicial documents, filed under oath and submitted in
furtherance of formal prosecution.” United States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006);
see Tenn. R. Crim. P. 3(c) (providing that an “affidavit of complaint is a statement alleging that a
person has committed an offense . . . [and must] allege the essential facts constituting the offense
charged.”).
constitut[ing] said offense,” which included that Daniels “grabbed [his girlfriend] and
struck her several times on the top of her head.” (See id.) The allegation that Daniels hit
his girlfriend paraphrases Section 39-13-101(a)(1), which prohibits “[i]ntentionally,
knowingly or recklessly caus[ing] bodily injury to another,” by alleging a completed
battery. Castleman held that (a)(1) of the Tennessee assault statute qualifies under the
federal definition. See Castleman, 134 S. Ct. at 1414-15; see also Voisine v. United
States, 136 S. Ct. 2272, 2280-82 (2016) (holding that even reckless conduct qualifies).
The charge does not paraphrase Section 39-13-101(a)(2)—which prohibits
“[i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily
injury,” because it fails to allege that Daniels caused the victim to reasonably fear injury. 4
That is the prong Daniels argues does not fit the federal definition of a “misdemeanor
crime of domestic assault.”
In another document, entitled “waiver and plea,” Daniels admitted this charge.
Specifically, he pleaded guilty to the offense of domestic assault and “state[d] that he is
guilty of the charge(s) because the facts which he knows to exist equal the elements of
the charge(s).” (App’x at 1.) He further admitted that “there is a factual basis for his
4
Cf. United States v. Vinson, 794 F.3d 418, 429-30 (4th Cir. 2015), vacated on reh’g on other
grounds, United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) (in a case in which the applicable
state-court document provided that the defendant “str[uck] [the victim] . . . by hitting her about
her face with his open hand,” holding that this allegation did “not describe the attempted battery
or show-of-violence forms of assault [in the North Carolina assault statute], as there are no facts
supporting the reasonable-apprehension elements of those crimes” and that the charge instead
“support[ed] every element of the completed-battery form of assault, which has no reasonable-
apprehension requirement” (emphasis added)).

plea.” (Id.) 5 Finally, in a document entitled “order accepting plea of guilty,” the judge
concluded that Daniels “understands the nature of the charges against him.” (Id.)
Notably, the order also states that “Def. [was] advised he cannot poss[ess] a gun.” (Id.)
In sum, Shepard-approved documents show that Daniels’s prior offense was under
(a)(1) of the Tennessee assault statute—the same prong that Castleman was convicted
under. Therefore, Daniels was indisputably convicted of a “misdemeanor crime of
domestic assault” under Section 921(a)(33)(A).
2. Alternatively, all prongs of the Tennessee assault statute qualify under the
federal definition of misdemeanor crime of domestic violence.
If this Court were to find that the Tennessee assault statute is indivisible or that the
underlying state-court documents are insufficient to establish which prong of the
Tennessee assault statute Daniel violated, it should still deny the motion to dismiss
because all prongs of the Tennessee statute qualify as misdemeanor crimes of domestic
violence. Daniels’s sole contention on this point is that (a)(2) of the statute fails to meet
the federal definition because, theoretically, a defendant could “place someone in
reasonable fear of imminent bodily harm” without using or attempting to use physical
force or without threatening the use of a deadly weapon. See § 921(a)(33)(A). For
support, Daniels quotes the Supreme Court’s statement in Castleman that “[i]t does not
appear that every type of assault defined by [the Tennessee assault statute] necessarily
involves ‘the use or attempted use of physical force, or the threatened use of a deadly
5
It does not matter for purposes of the modified categorical analysis that the “waiver and plea” is
a pre-printed template. In United States v. Conde-Castaneda, 753 F.3d 172 (5th Cir. 2014), the
Fifth Circuit held that a “template confession” can establish the statute of conviction. Id. at 178.
weapon.’ A threat under [prong (a)(2) of the statute] may not necessarily involve a
deadly weapon and the merely reckless causation of bodily injury under § 39–13–
101(a)(1) may not be a ‘use’ of force.” Castleman, 134 S. Ct. at 1413-14. The Court
went on to avoid these questions by analyzing only whether the part of the Tennessee
assault statute under which Castleman was convicted qualified under the federal
definition of misdemeanor crime of domestic violence. Id.
This statement from Castleman did not predetermine the issue of whether (a)(2)
assault is a misdemeanor crime of violence. First, the statement is nonbinding dicta, and
therefore it does not serve to answer the question at issue. Second, the same statement
failed to forecast how the Supreme Court would later rule on the related question of
whether reckless domestic assault qualifies under the federal definition: Although that
statement from Castleman suggested that assault committed recklessly might not qualify
under the federal definition, the Court later determined in Voisine, 136 S. Ct. at 2277-82,
that reckless assault did qualify under that definition. Similarly, an in-depth examination
of (a)(2) assault demonstrates that it, too, falls within the federal definition. 6
6
The only Fifth Circuit case related to this issue is United States v. White, 258 F.3d 374 (5th Cir.
2001), which held that the Texas offense of “reckless conduct” under the 1994 version of Texas
Penal Code § 22.05 did not qualify as a misdemeanor crime of domestic violence. Section 22.05
prohibited a person from “recklessly engag[ing] in conduct that places another in imminent
danger of serious bodily injury.” Id. at 377 (quoting Tex. Penal Code § 22.05 (1994)). The Fifth
Circuit’s determination that this conduct failed to qualify under the federal definition was
premised on the fact that the Texas statute required only recklessness, and, at the time, the Fifth
Circuit did not consider reckless conduct to constitute use of physical force. Id. at 382-83 (“This
offense does not require that the perpetrator actually ‘use’ ‘physical force’ against another (or
use it at all). Nor does section 22.05(a) require that there be any ‘attempted use of physical
force.’ Attempt necessarily imports a specific intent. However, specific intent is a more
culpable state of mind than recklessness, which is all that section 22.05(a) requires.”); see also
United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001) (“The criterion that the
The starting point for this Court in interpreting the misdemeanor-crime-of-
domestic-violence definition in Section 921(a)(33)(A) is the framework the Supreme
Court set forth for interpreting that provision in Castleman, Voisine, and an earlier
Supreme Court case, United States v. Hayes, 555 U.S. 415 (2009). All three of these
opinions emphasized the purpose of Section 922(g)(9) and broadly interpreted the
definition of “misdemeanor crime of domestic violence” to effectuate that purpose.
First, in Hayes, 555 U.S. 415, the Court held that the definition included assault
and battery convictions even if the statutes of conviction did not require the state to prove
the domestic relationship between the victim and the defendant as an element of the
offense. In reaching this conclusion, the Court recognized that “[f]irearms and domestic
strife are a potentially deadly combination nationwide” and that passage of Section
922(g)(1) was necessary because existing laws “were not keeping firearms out of the
hands of domestic abusers,” as “‘many people who engage in serious spousal or child
abuse ultimately are not charged with or convicted of felonies.’” Id. at 426-27 (quoting
142 Cong. Rec. 22,985 (1996)); see 142 Cong. Rec. 22,986 (1996) (statement of Sen.
Wellstone) (“In all too many cases unfortunately, if you beat up or batter your neighbor’s
wife it is a felony. If you beat up or batter, brutalize your own wife or your own child, it
is a misdemeanor.”). Thus, the Hayes Court explained, Section 922(g)(9) was intended
defendant use physical force . . . is most reasonably read to refer to intentional conduct.”). But
Voisine overruled this precedent, holding that reckless conduct can also constitute use of force.
136 S. Ct. at 2277-82. Thus, White does not determine the issue presented here.
to “‘close this dangerous loophole’” by “keeping firearms out of the hands of domestic
abusers.” Hayes, 555 U.S. at 426 (quoting 142 Cong. Rec. 22,986).
In recognition of the purpose and intentionally broad sweep of Section 922(g)(9),
the Court emphasized the important role of common sense in construing the definition of
“misdemeanor crime of domestic violence,” reasoning: “[T]he lawmakers [who drafted
the definition] might have better conveyed that ‘committed by’ modifies only ‘offense’
and not ‘use’ or ‘element.’ Congress’ less-than-meticulous drafting, however, hardly
shows that the legislators meant to exclude from § 922(g)(9)’s firearm possession
prohibition domestic abusers convicted under generic assault or battery provisions.” Id.
at 423 (emphasis added). The Hayes Court went on to reason that, if it interpreted the
definition to include only those offenses that required proof of the domestic relationship
as an element, that would have excluded two-thirds of the states’ laws from falling within
the definition because, “[a]s of 1996 [the year Section 922(g)(9) became law], only about
one-third of the States had criminal statutes that specifically proscribed domestic
violence” and had the domestic relationship as an element of the offense. Id. at 427. The
Court therefore read the definition in light of common sense to deduce that prior
convictions could fall within the definition as long as the defendant and victim had been
in a domestic relationship, regardless of whether the statute required proof of that as an
element of the state offense.
Likewise, in Castleman, the Court interpreted the federal definition of
“misdemeanor crime of domestic violence” to include all assault provisions that have, as
an element, intentional or knowing physical injury or offensive touching. 134 S. Ct. at

1410-15. In doing so, the Court rejected the defendant’s argument that state laws
defining assault by reference to injury fell outside the federal definition because one
could conceivably cause bodily injury without “physical force.” Id. at 1414-15. Instead,
the Court broadly interpreted “force,” as used in Section 921(a)(33)(A), as simply “force
exerted by and through concrete bodies.” Id. at 1414. Thus, injuring someone by way of
poison or laser beam would include the use of force despite the lack of direct physical
contact. Id. at 1414-15. It also distinguished the force necessary for ACCA qualification
from that necessary for inclusion within the misdemeanor-domestic-assault definition,
establishing a lower threshold for the latter because of the relatively minor qualifying
circumstances also included in Section 922(g) like being a drug addict or a subject of a
restraining order. Id. at 1412 (“Whereas we have hesitated . . . to apply [the ACCA] to
crimes which, though dangerous, are not typically committed by those whom one
normally labels ‘armed career criminals,’ . . . we see no anomaly in grouping domestic
abusers convicted of generic assault or battery offenses together with the others whom
[Section] 922(g) disqualifies from gun ownership.” (emphasis added)).
Castleman further supported its broad reading of Section 921(a)(33)(A) by
explaining the practical problems that would occur with a narrower interpretation. It
noted that many states’ assault provisions were framed in terms of causation of injury
rather than use of force, and “a contrary reading would have rendered § 922(g)(9)
inoperative in many States at the time of enactment.” Id. at 1413. By interpreting
Section 921(a)(33)(A)’s definition broadly to capture common assault and battery
offenses, Castleman confirmed the conclusion in Hayes that generic misdemeanor assault

and battery are the core offenses Section 922(g)(9) targets, and that their inclusion in its
scope is critical to effectuating the provision’s purpose, which was to ensure that
domestic abusers convicted of misdemeanors are barred from possessing firearms.
Finally, in Voisine v. United States, 136 S. Ct. 2272 (2016), the Court determined
that the federal definition of misdemeanor crime of domestic violence included assaults
caused recklessly. In so holding, the Court, echoing its earlier analysis in Castleman,
explained that “Congress enacted § 922(g)(9) in 1996 to bar those domestic abusers
convicted of garden-variety assault or battery misdemeanors . . . from owning guns.” Id.
at 2280 (emphasis added). As in Hayes and Castleman, the Court looked to the practical
consequences of the parties’ competing interpretations of Section 921(a)(33)(A) and
rejected the narrower interpretation based on the fact that it would have rendered several
states’ assault laws inapplicable. Id.
Applying the same analysis as in these cases, this Court must conclude that the
federal definition of “misdemeanor crime of domestic violence” encompasses the (a)(2)
prong of Tennessee’s assault statute, which prohibits intentional or knowing acts that
cause the victim to reasonably fear imminent bodily harm. First, just as Castleman
reasoned that virtually all acts that cause physical harm are the result of “the use of
physical force,” virtually all of the types of actions that would conceivably cause a person
to reasonably fear imminent bodily harm involve the use or attempted use of force or
threatened use of a deadly weapon. It is not enough for Daniels to imagine potential
scenarios in which a defendant could be found guilty of (a)(2) assault for actions that do
not involve a use or attempted use of force or threatened use of a deadly weapon—he

must instead point to examples from the state’s own case law. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007) (reasoning that “to find that a state statute creates a
crime outside the generic definition of a listed crime in a federal statute requires more
than the application of legal imagination to a state statute’s language”; it requires a
“realistic probability,” and not just a “theoretical possibility,” that the state statute would
be applied in a “nongeneric” way); see Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85
(2013) (explaining that the “focus on the minimum conduct criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the state offense”).
Daniels has failed to do that here. Although he cites State v. McCaleb, No.
01C01-9707-CC-00251, 1998 WL 408620, at *1-*2 (Tenn. Crim. App. July 22, 1998),
and United States v. Horse Looking, 828 F.3d 744 (8th Cir. 2016), as discussing
examples of conduct that would fall within (a)(2) but would not involve the use or
attempted use of force or the threatened use of deadly weapon, both, in fact, involve a
“use of force.” In State v. McCaleb, the defendant used gritted teeth and a clenched fist
to place the victim in fear of imminent bodily harm. 1998 WL 408620, at *1-*2. And in
Horse Looking, 828 F.3d at 747, the court’s example of a person “pumping a fist in an
angry manner” would constitute a “use of physical force.” 7 Critically, nowhere does the
7
Not only is Horse Looking incorrect in its determination that pumping a fist does not constitute
use of force, it is distinguishable because it construed a South Dakota statutory provision that is
broader on its face than Tennessee (a)(2) assault. The South Dakota provision penalized
“[a]ttempt[ing] by physical menace or credible threat to put another in fear of imminent bodily
harm, with or without the actual ability to harm the other person.” Horse Looking, 828 F.3d at
746 (quoting S.D. Codified Laws § 22-18-1(4)). Moreover, Horse Looking devoted virtually no
analysis to its determination that this provision was broader than Section 921(a)(33)(A)’s
misdemeanor domestic-violence definition because the government conceded that the provision
was broader—a concession based on a 1999 Eighth Circuit case, United States v. Smith, 171 F.3d
federal definition require physical force that results in contact with or injury to the victim.
And, as the Court held in Castleman, physical force is anything other than “emotional” or
“intellectual” force. 134 S. Ct. at 1414. Thus, these uses of physical force, which could
cause the victim to reasonably fear imminent bodily injury, would not result in (a)(2)
assault falling outside the federal definition.
Second, just as the Court in Hayes, Castleman, and Voisine refused to interpret
the federal definition of misdemeanor crime of domestic violence in a way that would
exclude many states’ assault laws from qualifying, this Court should interpret the
definition to include (a)(2) assault because many other states—along with the Model
Penal Code—prohibit that type of assault. The Model Penal Code defines assault as,
among other things, “attempt[ing] by physical menace to put another in fear of imminent
serious bodily injury.” MPC § 211.1 (“Assault”). Several states similarly define assault
as including this conduct. 8 To interpret the definition as excluding this conduct would do
617, 620 (8th Cir. 1999). See Appellee’s Brief, United States v. Horse Looking, No. 15-2739,
2015 WL 7888833, at *10 (Dec. 2, 2015); Horse Looking, 828 F.3d at 747. Like Horse Looking,
Smith had concluded without any real analysis that an Iowa provision penalizing “placing
another in fear of imminent physical contact which will be painful, injurious, insulting, or
offensive” did not meet the federal misdemeanor domestic-violence definition. Smith, 171 F.3d
at 620 (cited in Horse Looking, 828 F.3d at 747). Based on the lack of in-depth analysis on this
issue, neither Horse Looking nor Smith are persuasive authority here, and the government does
not concede that (a)(2) of the Tennessee assault statute falls outside of the federal definition.
8See, e.g., Ariz. Rev. Stat. Ann. § 13-1203(A)(2) (assault includes “[i]ntentionally placing
another person in reasonable apprehension of imminent physical injury”); Ark. Code Ann. § 5-
13-207(a) (“A person commits assault in the third degree if he or she purposefully creates
apprehension of imminent physical injury in another person.”); Miss. Code. Ann. § 97-3-
7(1)(a)(iii) (“A person is guilty of simple assault if he . . . attempts by physical menace to put
another in fear of imminent serious bodily harm.”); Mo. Ann. Stat. § 565.056(1) (“A person
commits the offense of assault in the fourth degree if . . . (3) the person purposefully places
another person in apprehension of immediate physical injury.”); Mo. Ann. Stat. § 565.076(1) (“A
what the Supreme Court chose not to do in Hayes, Castleman, and Voisine—interpret the
definition in an overly restrictive fashion that would exclude many states’ assault
provisions and render Section 922(g)(9) a nullity for countless domestic-violence
offenders.
Third, as the Supreme Court did in Hayes, Castleman, and Voisine, this Court
should consult the legislative history on Section 922(g)(9), which demonstrates beyond
doubt that the definition of misdemeanor crime of domestic violence was intended to
cover (a)(2) assault. The legislative history shows that the definition was intended to
encompass the type of conduct included in an (a)(2) assault. Senator Lautenberg, the
sponsor of the amendment that created Section 922(g)(9), explained that the definition
originally included the term “crime of violence” without any clarification of what that
meant. 142 Cong. Rec. S11872-01, S11877 (1996). Some became concerned that this
term “could be interpreted to include an act such as cutting up a credit card with a pair of
scissors.” Id. He explained that, therefore, he “agree[d] to a new definition of covered
crimes that is more precise, and probably broader.” Id. He reasoned that the new
definition was “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
person commits the offense of domestic assault in the fourth degree if the act involves a domestic
victim . . . and: . . . (3) The person places such domestic victim in apprehension of immediate
physical injury by any means.”); Mont. Code Ann. § 45-5-206(1)(c) (“A person commits the
offense of partner or family member assault if the person . . . purposefully or knowingly causes
reasonable apprehension of bodily injury in a partner or family member.”); N.J. Stat. Ann.
§ 2C:12-1(a) (“A person is guilty of assault if he: . . . (3) Attempts by physical menace to put
another in fear of imminent serious bodily injury.”); 18 Pa. Cons. Stat. Ann. § 2701(a) (“[A]
person is guilty of assault if he: . . . (3) attempts by physical menace to put another in fear of
imminent serious bodily injury.”).
weapon, if such an attempt or threat did not also involve actual physical violence.” Id.
He then concluded that, under the new definition, “anyone who attempts or threatens
violence against a loved one has demonstrated that he or she poses an unacceptable risk,
and should be prohibited from possessing firearms.” Id. (emphasis added). This
description of the type of conduct the amendment was intended to target clearly includes
conduct that “[i]ntentionally or knowingly causes another to fear imminent bodily
injury.” § 39–13–101(a)(2).
Finally, this Court should conclude that (a)(2) assault falls within the federal
definition because the opposite conclusion would lead to absurd results. Under
Castleman, (a)(3) offensive-touching assault qualifies under the federal definition. (See
supra p. 6 & n.2.) Assaults under (a)(1) and (a)(2) are Class A misdemeanors in
Tennessee, punishable by up to 11 months and 29 days’ imprisonment, but offensive-
touching assault under (a)(3) is a Class B misdemeanor, punishable by up to only six
months’ imprisonment. (See supra p. 5.) If this Court held that (a)(2) assault did not
qualify under the federal definition, it would mean that offensive touching under (a)(3)—
a form of assault that the State of Tennessee has judged to be less serious than (a)(2)
assault—would qualify to prevent defendants convicted under it from possessing a
firearm, but a form of assault that Tennessee has judged to be more serious ((a)(2)) would
not qualify. Simply put, Congress cannot have intended this illogical outcome.
Conclusion
This Court should deny Daniels’s motion to dismiss because (1) the Tennessee
assault statute is divisible and the state-court documents show that Daniels was convicted

under the same prong—(a)(1)—as the defendant in Castleman, and (2) alternatively, all
prongs of the statute fall within the federal definition of misdemeanor crime of domestic
violence.
Respectfully submitted,
ERIN NEALY COX

United States Attorney

Assistant United States Attorney
Texas Bar No. 00796455
1100 Commerce Street, Third Floor
Dallas, Texas 75242-1699
Telephone: (214) 659-8682
john.delagarza@usdoj.gov
CERTIFICATE OF SERVICE
I certify that on February 7, 2018, I electronically filed this document with the
Clerk of Court for the United States District Court for the Northern District of Texas
using the electronic filing system of the Court. The electronic case filing system will
send a notice of filing to all the attorneys of record who have consented to such service.


US v. Daniels - Response To Motion To Dismiss

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Case 3:18-cr-00005-D Document 27 Filed 02/07/18 Page 1 of 23 PageID 129

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

CHRISTOPHER MAURICE DANIELS

RESPONSE TO DANIELS’S MOTION TO DISMISS

ERIN NEALY COX

s/ John J. de la Garza III

A. Both Castleman and Mathis demonstrate that the Tennessee assault

B. Applying the modified categorical approach shows that Daniels

Descamps v. United States, 570 U.S. 254 (2013)............................................................ 3, 4

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ........................................................... 15

Mathis v. United States, 136 S. Ct. 2243 (2016) ......................................................... 3, 4, 5

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ................................................................... 15

Shepard v. United States, 544 U.S. 13 (2005) ..................................................................... 7

Taylor v. United States, 495 U.S. 575 (1990) ..................................................................... 3

United States v. Castleman, 134 S. Ct. 1405 (2014) .................................................. passim

United States v. Hayes, 555 U.S. 415 (2009) .............................................................. 11, 12

United States v. Jones, 453 F.3d 777 (6th Cir. 2006).......................................................... 8

United States v. Smith, 171 F.3d 617 (8th Cir. 1999)........................................................ 16

United States v. Vinson, 794 F.3d 418 (4th Cir. 2015)........................................................ 9

Voisine v. United States, 136 S. Ct. 2272 (2016) ....................................................... passim

Federal/State Statutes and Rules Page(s)

18 Pa. Cons. Stat. Ann. § 2701(a) ..................................................................................... 17

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

18 U.S.C. § 922(g)(9) .......................................................................................................... 1

Ariz. Rev. Stat. Ann. § 13-1203 ........................................................................................ 17

Ark. Code Ann. § 5-13-207 ............................................................................................... 17

Miss. Code. Ann. § 97-3-7 ................................................................................................ 17

Mo. Ann. Stat. § 565.056(1) .............................................................................................. 17

Mo. Ann. Stat. § 565.076(1) .............................................................................................. 17

Mont. Code Ann. § 45-5-206 ............................................................................................ 17

N.J. Stat. Ann. § 2C:12-1................................................................................................... 17

Tenn. Code Ann. § 39-13-101(a) ........................................................................................ 2

Tenn. Code Ann. § 39-13-111(b) ........................................................................................ 2

Tenn. Code Ann. § 40-35-111(e) ........................................................................................ 5

Tenn. Code Ann. §§ 39-13-101(b) ...................................................................................... 7

Tennessee Code § 39-13-111 .............................................................................................. 2

Tex. Penal Code § 22.05 (1994) ........................................................................................ 11

Tenn. R. Crim. P. 3(c) ......................................................................................................... 8

142 Cong. Rec. 22,985-86 ................................................................................................. 11

RESPONSE TO DANIELS’S MOTION TO DISMISS

The government charged Daniels under 18 U.S.C. § 922(g)(9) with possessing a

statute is divisible and, even if indivisible, the statute, as a whole, qualifies as a

misdemeanor crime of domestic violence. Thus, his claim fails.

1. The Tennessee assault statute is divisible, and state-court documents

A. Both Castleman and Mathis demonstrate that the Tennessee assault

The government charged Daniels with possessing a firearm as a prohibited person

convicted in any court of a misdemeanor crime of domestic violence . . . [to] possess in or

affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(9). Section

921(a)(33)(A) defines a “misdemeanor crime of domestic violence” as “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

Response to Motion to Dismiss – Page 1

cohabitating with or has cohabitated with the victim as a spouse,

The government based Daniels’s charge on a 2007 misdemeanor domestic-assault

conviction Daniels sustained in Tipton County, Tennessee. The domestic-violence law

commits domestic assault if he “commits an assault as defined in [the Tennessee assault

(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to

(2) Intentionally or knowingly causes another to fear imminent bodily

(3) Intentionally or knowingly causes physical contact with another and

(a)(2) constitutes a Class A misdemeanor, while a conviction under (a)(3) constitutes a

Class B misdemeanor. § 39-13-101(b)(1)(A).