BENAVIDES, Circuit Judge:
Ernest Scott Shelton appeals his conviction for unlawful possession of a firearm following a misdemeanor conviction of domestic violence. 18 U.S.C. § 922(g)(9). Shelton challenges the sufficiency of the evidence on several bases, including whether the predicate offense contains an element of use of force and whether the predicate offense must contain the element of a domestic relationship between the defendant and the victim. Guided by the precedent of this and other circuits, we reject these challenges and conclude that (1) causing bodily injury necessarily includes the element of use of physical force and that (2) the domestic relationship is not required to be an element of the predicate offense. We also reject Shelton's contention that § 922(g)(9) requires knowledge that it was unlawful to possess a firearm after having been convicted of a misdemeanor crime of violence.
I. PROCEDURAL HISTORY
Ernest Scott Shelton was charged with the unlawful possession of a firearm following a misdemeanor conviction of domestic violence, in violation of § 922(g)(9) (Count 1), and with making a false and fictitious written statement in connection with the acquisition of a firearm from a licensed dealer (Count 2). Shelton filed pretrial motions to dismiss, alleging that § 922(g)(9) was unconstitutional for violating
Shelton waived his right to a jury trial and agreed to proceed to a bench trial on the § 922(g)(9) charge only
After presentation of the stipulated evidence, Shelton moved for judgment of acquittal. Among other things, Shelton argued that his prior Texas misdemeanor assault conviction did not meet the definition of "crime of domestic violence" for purposes of § 922(g)(9) because it did not require proof that the offense involved "the use or attempted use of physical force" 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," as required by § 921(a)(33)(A)(ii).
During oral argument on his motion, Shelton conceded that, by "grabbing the complainant by the shirt and throwing the complainant onto a bed," physical force had been employed during the commission of the misdemeanor assault. The district court found that, with respect to the domestic relationship requirement of § 922(g)(9), a "live-in girlfriend" constituted someone "similarly situated to a spouse" for purposes of § 921(a)(33)(A)(ii). Accordingly, Shelton's motion for acquittal was denied, and the district court found him guilty of the § 922(g)(9) charge.
Shelton filed a post-conviction motion for a new trial, which the district court denied. He was sentenced to 21 months of imprisonment, to be followed by a three-year term of supervised release. Shelton filed a timely notice of appeal.
A. SUFFICIENCY OF THE EVIDENCE
Shelton raises several challenges to the sufficiency of the evidence to sustain
Section 922(g)(9) provides as follows: "It shall be 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...." The term "misdemeanor crime of domestic violence" is defined as a misdemeanor under federal or state law that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a 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). Shelton's prior conviction for misdemeanor assault was pursuant to § 22.01(a)(1) of the Texas Penal Code, which provides that "[a] person commits an offense if the person ... intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse...." Shelton has admitted that the victim of his prior conviction was his "live-in girlfriend" of two months at the time of the assault.
1. Whether the predicate offense contains the element of use of force
Shelton first argues that his prior conviction for misdemeanor assault pursuant to § 22.01(a)(1) of the Texas Penal Code does not constitute a "crime of domestic violence" within the definition of 18 U.S.C. § 922(g)(9) because the Texas misdemeanor assault statute did not contain the element of "the use or attempted use of physical force."
a. Fifth Circuit Precedent
Although we have not resolved this precise question with respect to Shelton's offense, this Court has concluded that the Texas offenses of reckless conduct (§ 22.05)
Subsequent to oral argument in the instant case, this Court held that a Texas conviction for intoxication assault qualified as a "crime of violence" for sentence enhancement purposes. United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003). In that case, the appellant argued that his prior conviction did not constitute a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because it did not contain the element of intentional use of force against a person.
Although Vargas-Duran is not on all fours with Shelton's case in that it involved the interpretation of the elements of the Texas offense of intoxication assault in the context of a sentencing guideline enhancement (as opposed to the interpretation of the elements of the Texas offense of misdemeanor assault in the context of a 18 U.S.C. § 922(g)(9) conviction for possession of a firearm), the discussion certainly informs the instant question. Applying the analysis of Vargas-Duran to the case at bar, it appears the "bodily injury" element of Shelton's predicate offense would also encompass a requirement that Shelton used force to cause the injury. Although Shelton's misdemeanor offense did not require serious bodily injury, we do not believe that renders the analysis inapplicable.
b. Precedent from other circuits with respect to § 922(g)(9)
Interpreting a state assault statute nearly identical to the one at issue, the First Circuit held that the phrase "bodily injury" included an element of use of physical
As stated, the pertinent language of the Maine assault statute is essentially identical to the Texas assault statute in question at bar. Following the reasoning of the First Circuit, we look to Texas's definition of "bodily injury." Under Texas law, "`[b]odily injury' means physical pain, illness, or any impairment of physical condition." § 1.07(a)(8) of the Texas Penal Code. Although the Texas definition modifies "pain" and "impairment" with the term "physical," it does not use the term "physical" to modify illness. Nonetheless, the term "physical" is implicit in any type of "bodily injury" inasmuch as "bodily" is defined as "having a body: PHYSICAL" or "of or relating to the body." Webster's Ninth New Collegiate Dictionary 164 (1984). As such, the fact that "illness" is not modified by the word "physical" in the context of the Texas statute is a distinction without a difference.
Shelton's predicate offense does contain bodily injury as an element. According to Nason, the force inflicting such injury must be physical in nature, and thus use of physical force is a necessary element of the crime.
Additionally, the Eighth Circuit has reached a similar conclusion. United States v. Smith, 171 F.3d 617 (8th Cir.1999). In Smith, the defendant was convicted pursuant to the federal statute in question, § 922(g)(9). The predicate offense was an Iowa assault statute that prohibited an act intended to cause pain, injury or offensive or insulting physical contact. See Iowa Code § 708.1(1). Smith argued that mere physical contact would not constitute use of physical force. Smith, 171 F.3d at 621 n. 2. The Eighth Circuit disagreed, explaining that "physical contact, by necessity, requires physical force to complete." Id.
c. Shelton's Arguments
Nonetheless, Shelton contends that the instant misdemeanor statute is result-oriented because it is the result of the offense (bodily injury) that is proscribed, not the conduct. Thus, Shelton argues that if the statute does not proscribe any conduct, by definition it does not require that the perpetrator actually use or attempt to use physical force to effect the proscribed result. In support of this contention, Shelton relies on a recent decision of this Court. In United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir.2002), the appellant argued that the district court erred in enhancing his sentence based on the incorrect conclusion that his prior felony conviction for injury to a child constituted an "aggravated felony" under the sentencing guidelines. U.S.S.G. § 2L1.2(b)(1)(A). To constitute an aggravated felony pursuant to the applicable sentencing guidelines, the prior conviction must have had "as an element
We agreed with Gracia-Cantu's assertion that his prior conviction did not constitute a crime of violence under § 16(a) because "the statute criminalizing injury to a child does not require that the perpetrator actually use, attempt to use, or threaten to use physical force against a child. Rather, section 22.04(a) is results-oriented in that the culpable mental state must relate to the result of a defendant's conduct rather than to the conduct itself." Gracia-Cantu, 302 F.3d at 311-12 (emphasis added). At first blush, this broad language seems to support Shelton's argument that because his statute of conviction is "result-oriented" it does not require the use of physical force. However, because Gracia-Cantu involved the interpretation of a statute that is materially different from Shelton's predicate offense, we do not find the "result-oriented" label dispositive of the instant question.
We note that, in Gracia-Cantu, the government conceded that "because the statutory definition of the offense does not explicitly require the application of force as an element, 18 U.S.C. § 16(a)" did not apply. 302 F.3d at 312. Unlike Gracia-Cantu, in the case at bar, the government does not concede the claim but instead argues that the statutory provision at issue does contain an element of use of physical force. Although we certainly do not imply that we were bound by the government's concession in Gracia-Cantu,
In Gracia-Cantu, the government did not raise the contention that the element of bodily injury necessarily entailed the use of physical force. Even had such argument been raised, because of the material difference between the injury to a child statute and the instant misdemeanor assault
Finally, we note that Shelton has proposed various hypotheticals in which he contends an individual could be charged with misdemeanor assault in Texas without having used physical force. However, no actual cases were cited to support these scenarios. Thus, we are not persuaded by this argument. See Nason, 269 F.3d at 20 n. 5 (rejecting defense counsel's "exotic exemplars and limit[ing] our probing to actual cases"); Vargas-Duran, at 195-97 (rejecting argument that a defendant could be convicted of Texas offense of intoxication assault for causing serious bodily injury without using physical force after noting no cases supported the proposition).
In conclusion, in light of the Eighth and First Circuits' holdings that bodily injury and physical contact necessarily included an element of use of force in the context of a § 922(g)(9) challenge, our analogous reasoning in Vargas-Duran in the context of a sentencing guideline challenge, and the absence of a Texas case that indicates that a defendant could be convicted of misdemeanor assault for causing bodily injury without using physical force, we remain unpersuaded by Shelton's arguments. Thus, we hold that because Shelton's predicate offense of misdemeanor assault requires bodily injury it includes as an element the use of physical force.
2. Whether the predicate offense must contain the element of a relationship between the defendant and the victim
Shelton also argues that the domestic relationship required by § 922(g)(9) must be contained as an element in the predicate offense.
The District of Columbia Circuit, although "not necessarily find[ing] the singular versus plural rationale determinative," agreed that a misdemeanor crime of domestic violence includes only the use of force as an element — not the relationship between the defendant and the victim. United States v. Barnes, 295 F.3d 1354, 1364 (D.C.Cir.2002). The District of Columbia Circuit found Congress's syntax awkward, but ultimately concluded that
Very recently, the Second Circuit addressed this issue and discussed the above circuit precedent. United States v. Kavoukian, 315 F.3d 139 (2d Cir.2002). In Kavoukian, the Second Circuit recognized that several circuits have determined that any possible ambiguity was "clear[ed] up" by the statute's legislative history. Id. at 143 (citing Barnes, 295 F.3d at 1365; Smith, 171 F.3d at 620; Meade, 175 F.3d at 220). The Second Circuit found the following legislative history, a statement from Senator Lautenberg who sponsored the amendment to § 921(a), to be most convincing:
Id. at 143 (quoting 142 Cong. Rec. S11872-01, *S11878 (1996) (Statement of Sen. Lautenberg)) (other citation omitted; emphasis in opinion). Additionally, Senator Lautenberg stated that "[u]nder 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." Id. at 144 (quoting 142 Cong. Rec. S11872-01, *S11877 (1996)).
In view of the weight of the persuasive authority and the above-quoted legislative history, we agree that § 922(g)(9) does not require the predicate offense to contain as an element the relationship between the defendant and the victim.
3. Whether evidence sufficient to prove victim was similarly situated to a spouse
In the alternative, Shelton argues that the evidence is insufficient to establish that the victim of his predicate offense was similarly situated to a spouse. It is undisputed
Shelton asserts that the phrases "cohabit as a spouse" and "similarly situated to a spouse" contained in § 921(a)(33)(A) are not defined in the statute. In support of his argument that his "live-in" girlfriend of two months does not qualify as a domestic relationship under the statute, Shelton relies on the following definition from Black's Law Dictionary: "Cohabitation" is "[t]he fact or state of living together, esp[ecially] as partners in life, usu[ally] with the suggestion of sexual relations." Black's Law Dictionary 254 (7th ed.1999). But Shelton's admission that the victim was his "live-in girlfriend" certainly falls within his suggested definition. "Live-in girlfriend" indicates living together with the implication that the two were having sexual relations. Accordingly, Shelton's admission was sufficient evidence to prove the victim was similarly situated to a spouse in the context of this statute.
B. DEFECTIVE INDICTMENT
Shelton contends that his indictment was fatally defective for failing to allege that he knew it was unlawful to possess a firearm subsequent to his misdemeanor assault conviction. This Court reviews de novo the district court's decision with respect to challenges to the constitutionality of a federal statute. United States v. Rasco, 123 F.3d 222, 226 (5th Cir.1997).
Shelton recognizes that this Court has held that a conviction under § 922(g)(8)
Moreover, at least four circuits have concluded that § 922(g)(9) does not require proof that the defendant knew his conduct violated the law. United States v. Denis, 297 F.3d 25, 28-31 (1st Cir.2002); United States v. Hancock, 231 F.3d 557, 561-63 (9th Cir.2000); United States v. Hutzell, 217 F.3d 966, 968-69 (8th Cir.2000); United States v. Beavers, 206 F.3d 706, 710 (6th Cir.2000).
We agree with the other circuits that have rejected the argument that § 922(g)(9) falls within the Lambert due process exception. See e.g., Denis, 297 F.3d at 29-30; Hancock, 231 F.3d at 564. Possession of a firearm is active, not passive, conduct. That alone renders the Lambert exception inapplicable. Under these circumstances, Shelton has failed to show that his indictment was fatally defective.
C. SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE
Finally, Shelton argues that § 922(g)(9) cannot constitutionally be construed to encompass the intrastate possession of a firearm simply because the firearm was transported across state lines at some point. We have repeatedly rejected this claim. See e.g. United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). Recognizing that this panel is bound by prior precedent, Shelton raises this issue to preserve it for further review.
In the alternative, Shelton argues that the evidence was insufficient to prove the interstate commerce element. In the district court, Shelton stipulated that he unlawfully possessed a shotgun that had been manufactured in Connecticut and traveled in interstate commerce to Houston, Texas. This Court has "made clear that stipulated evidence showing that a weapon was manufactured outside of the state in which it was possessed was sufficient to support a conviction." United States v. Lee, 310 F.3d 787, 788 (5th Cir.2002). This claim must fail.
Accordingly, the district court's judgment is AFFIRMED.