1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court

for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3164

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United States of America, *

*

 Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Delroy Fischer, *

*

 Defendant - Appellant. *

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Submitted: May 10, 2011

Filed: June 17, 2011

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Before MURPHY, BEAM, and COLLOTON, Circuit Judges.

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MURPHY, Circuit Judge.

Delroy Fischer was charged with possession of a firearm after having been

convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C.

§ 922(g)(9). Fischer pled guilty but reserved the right to appeal a decision of the

district court1

 to deny his motion to dismiss the indictment. We affirm.

In January 2006, Fischer was charged in Nebraska state court with third degree

domestic assault under Neb. Rev. Stat. § 28-323. The arrest warrant and supporting
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affidavit alleged that Fischer had yelled at, struck, and bit the nose of his former

girlfriend, who was also the mother of his children. Fischer pled no contest to an

amended charge of attempted assault in the third degree under Neb. Rev. Stat. § 28-

310. At his state court plea hearing, Fischer stipulated that the court would take

judicial notice of the factual allegations in the arrest warrant and affidavit, and the

court accepted those allegations as the "factual basis" of Fischer's plea.

More than two years later, Fischer's girlfriend reported to the police a domestic

disturbance involving Fischer. By Fischer's own admission he had gotten angry and

fired a shotgun. He was charged with possession of a firearm after conviction for a

misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9). 

Fischer moved to dismiss the indictment, arguing that his Nebraska conviction

was not a "misdemeanor crime of domestic violence" as defined in 18 U.S.C.

§ 921(a)(33)(A) because it did not have "as an element, the use or attempted use of

physical force." Relying on the arrest warrant and supporting affidavit which

described Fischer's violent conduct, the district court concluded that Fischer's prior

conviction did fit the definition and denied his motion to dismiss.

Fischer moved to dismiss the indictment a second time after obtaining a nunc

pro tunc order from the Nebraska court stating that:

1. [Fischer] pled to, and was convicted of, violating Neb. Rev. Stat.

§ 28-310, which does not require a finding of assault or attempted assault

on an "intimate partner";

2. That the conviction in this case did not involve any factual findings

that any domestic assault or attempted domestic assault occurred;

3. That insofar as the record in this case may involve allegations of

domestic assault or attempted domestic assault, any and all allegations

are hereby stricken from the record.
2

Though we need not reach Fischer's due process claim, it is nonetheless

unpersuasive. See United States v. Amerson, 599 F.3d 854, 855 (8th Cir. 2010) (per

curiam) ("Courts do not have a general duty to inform defendants of specific, detailed

consequences of their pleas.").

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The district court found that the state court order did not change its analysis and again

denied Fischer’s motion.

In response to a later motion in limine filed by the government, Fischer also

raised a due process objection, contending that the state court had not adequately

advised him that his conviction could serve as the predicate offense for a federal

firearms violation. The district court rejected this argument, concluding that the state

court had no duty to give such advice.

Fischer subsequently entered a conditional guilty plea, reserving the right to

appeal the district court’s decision to deny his second motion to dismiss the

indictment. Because Fischer's conditional plea reserved an appeal only of the denial

of his second motion to dismiss, Fischer waived his due process claim, which was

raised months after that ruling. See United States v. Limley, 510 F.3d 825, 827 (8th

Cir. 2007) (conditional plea must "identify precisely" the pretrial issues preserved for

appellate review).2

 The only question properly before this court is whether Fischer's

state court conviction of attempted assault in the third degree qualifies as a predicate

“misdemeanor crime of domestic violence."

We review de novo the district court's denial of Fischer's motion to dismiss the

indictment. Amerson, 599 F.3d at 855. Under 18 U.S.C. § 922(g)(9) anyone "who

has been convicted in any court of a misdemeanor crime of domestic violence" is

prohibited from possessing a firearm. A "misdemeanor crime of domestic violence"

is defined as a "misdemeanor under Federal, State, or Tribal law" that has, "as an

element,"
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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). Fischer does not dispute that he had a domestic

relationship with the victim in the incident which gave rise to his state court

conviction. It is not required that such a relationship be an element of the predicate

offense, so long as it is proven beyond a reasonable doubt. United States v. Hayes,

129 S. Ct. 1079, 1087 (2009). The only question here is whether the crime for which

Fischer was convicted "has, as an element, the use or attempted use of physical force"

or "the threatened use of a deadly weapon."

The statute under which Fischer was convicted provides:

(1) A person commits the offense of assault in the third degree if he:

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

another person; or

(b) Threatens another in a menacing manner. 

Neb. Rev. Stat. § 28-310(1). This court ordinarily looks "only to the predicate offense

rather than to the defendant's underlying acts to determine whether the required

elements are present," United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999), but

when, as here, a criminal statute reaches a "broad range of conduct," an expanded

inquiry is warranted, Amerson, 599 F.3d at 855. That inquiry "may include the

written plea agreement, transcript of plea colloquy, and any explicit factual findings

by the trial judge to which the defendant assented." Id. (quoting United States v.

Howell, 531 F.3d 621, 623 (8th Cir. 2008)).
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Fischer argues that the district court erred in concluding that his conviction was

an adequate predicate offense because it is impossible to tell whether he was convicted

under § 28-310(1)(a) or (b). That argument is belied by the record of his state court

conviction. The state court explicitly stated that it accepted the allegations contained

in the arrest warrant and supporting affidavit as the "factual basis" of Fischer's plea.

Those documents indicate that Fischer physically assaulted the victim, striking her

face and biting her nose. Fischer did not object to those facts, and he stipulated to the

court's taking judicial notice of them. As there is little question that the biting of a

victim's nose is an intentional act causing bodily harm and not merely a threatening

act, it is clear that Fischer was convicted under § 28-310(1)(a). See Smith, 171 F.3d

at 620–21 (an expanded inquiry is appropriate to determine under which portion of a

statute a defendant was convicted).

Fischer further contends that even if § 28-310(1)(a) applies, it does not contain

the requisite force element because a hypothetical defendant could cause bodily injury

to another person without using physical force. In this respect, the present case is

indistinguishable from Amerson. The statute at issue there, Neb. Rev. Stat. § 28-

323(1)(a), contains nearly the same language as § 28-310(1)(a). Both statutes prohibit

conduct that "causes bodily injury" to another person and therefore encompass a broad

range of conduct. 599 F.3d at 855. Like Fischer, the defendant in Amerson did not

object to a state court's recitation of the facts establishing his use of physical force at

his guilty plea hearing. Id. In doing so, he "assented to factual findings that satisfy

the force requirement of 18 U.S.C. § 921(a)(33)(A)(ii)." Id. Because Amerson

controls here, the district court did not err in concluding that Fischer's previous

conviction qualified as a misdemeanor crime of domestic violence.

The district court correctly determined that the state court's nunc pro tunc order

did not change this analysis. That order only clarified that Fischer's previous

conviction under Neb. Rev. Stat § 28-310 did not contain an element requiring that

Fischer's victim was an "intimate partner" or that his assault was "domestic" in nature.
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Such an element is not required for characterization as misdemeanor crime of

domestic violence. See Hayes, 129 S. Ct. at 1087.

Because Fischer's state court conviction satisfied the force requirement and

there was no question that he had a domestic relationship with the victim, that

conviction served as a predicate misdemeanor crime of domestic violence for criminal

liability under 18 U.S.C. § 922(g)(9). We conclude that the district court did not err

in denying Fischer's motion to dismiss, and affirm its judgment.

COLLOTON, Circuit Judge, concurring.

I see no material distinction between this case and United States v. Amerson,

599 F.3d 854 (8th Cir. 2010) (per curiam), and I therefore agree that this panel must

affirm Delroy Fischer’s conviction based on circuit precedent. Amerson is probably

wrong, however, and Fischer is likely entitled to dismissal of the indictment under the

governing statutes.

To prosecute Fischer for a violation of 18 U.S.C. § 922(g)(9), the government

must show that he was previously convicted of a “misdemeanor crime of domestic

violence.” This crime is defined as an offense that, among other characteristics, “has,

as an element, the use or attempted use of physical force, or the threatened use of a

deadly weapon.” 18 U.S.C. § 921(a)(33)(A)(ii). 

The difficulty with Amerson is the court’s holding that “the force requirement

of 18 U.S.C. § 921(a)(33)(A)(ii)” was satisfied by “factual findings” in the

defendant’s prior state court proceedings that the defendant used force against his

girlfriend. 599 F.3d at 855. The dispositive question under § 921(a)(33)(A)(ii) is not

whether the defendant actually used force in committing a misdemeanor offense, but

whether the offense of conviction “has, as an element, the use or attempted use of

physical force.” The federal court should use the judicial record of the defendant’s
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prior conviction in state court only to determine which offense under state law was the

offense of conviction. See United States v. Howell, 531 F.3d 621, 622-23 (8th Cir.

2008) (“If the predicate statute reaches a broad range of conduct, this court may

expand the inquiry to review the charging papers and jury instructions, but only to

determine which part of the statute the defendant violated.”). Once the offense of

conviction is identified, the court’s analysis must focus on the elements of that

offense. See Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (explaining that the comparable

language of 18 U.S.C. § 16(a) “requires us to look to the elements . . . of the offense

of conviction, rather than to the particular facts relating to petitioner’s crime”). 

In this case, Fischer was convicted of attempted assault in the third degree

under Neb. Rev. Stat. §§ 28-201 and 28-310(1)(a). The judicial record shows that he

was convicted for intentionally and knowingly attempting to “cause[] bodily injury

to another person.” Neb. Rev. Stat. § 28-310(1)(a); R. Doc. 26, at 3-14. The offense

of attempting to cause bodily injury to another person does not appear to have, as an

element, the use or attempted use of physical force, because the State can establish that

the offense was committed without proving a use or attempted use of force. At oral

argument, counsel gave the example of a defendant intentionally signaling to the

driver of a vehicle that a roadway is clear while knowing that the driver is likely to

cause an accident and suffer injury by proceeding. Judicial decisions concerning

comparable statutes provide similar analysis. See United States v. VillegasHernandez, 468 F.3d 874, 880-81 (5th Cir. 2006) (“[I]t seems an individual could be

convicted of intentional assault in the third degree for injury caused not by physical

force, but by guile, deception, or even deliberate omission.”) (internal quotation

omitted); United States v. Perez-Vargas, 414 F.3d 1282, 1286-87 (10th Cir. 2005)

(citing examples of causing bodily injury by intentionally placing a barrier in front of

a car causing an accident, or intentionally exposing someone to hazardous chemicals);

Chrzanoski v. Ashcroft, 327 F.3d 188, 196 (2d Cir. 2003) (“[H]uman experience

suggests numerous examples of intentionally causing physical injury without the use

of force, such as a doctor who deliberately withholds vital medicine from a sick
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patient.”); cf. United States v. Vinton, 631 F.3d 476, 485-86 (8th Cir. 2011) (holding

that a Missouri assault statute has as an element the use or attempted use of physical

force, where a person commits the crime if he “[a]ttempts to cause or knowingly

causes physical injury to another person by means of a deadly weapon or dangerous

instrument”) (quoting Mo. Rev. Stat. § 565.060.1(2)) (emphasis added); United States

v. Malloy, 614 F.3d 852, 859-60 (8th Cir. 2010) (holding that an Iowa statute

requiring that the defendant “inflict[] bodily injury” while resisting or obstructing a

peace officer has, as an element, the use, attempted use, or threatened use of physical

force against the person of another, because it was “difficult, if not impossible, to

imagine how the charged conduct could be carried out without actually using physical

force against the person of another”) (internal quotation omitted); United States v.

Smith, 171 F.3d 617, 620-21 & n.2 (8th Cir. 1999) (holding that defendant pleaded

guilty to “an offense with an element of physical force within the meaning of 18

U.S.C. § 921(a)(33)(A)(ii),” where the offense of conviction required proof of an “act

which is intended to cause pain or injury to, or which is intended to result in physical

contact which will be insulting or offensive to another,” Iowa Code § 708.1(1)

(emphasis added), and “such physical contact, by necessity, requires physical force

to complete”).

Unlike the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii), under which an

offense can qualify as a “violent felony” if it presents a serious potential risk of

physical injury to another person in the “ordinary case,” James v. United States, 550

U.S. 192, 208 (2007), the rule of § 921(a)(33)(A)(ii) is that a qualifying offense must

have the use or attempted use of physical force “as an element,” which by definition

means that proof of that fact is required in every case. United States v. Vargas-Dunn,

356 F.3d 598, 605 (5th Cir. 2004) (en banc); but cf. United States v. Salean, 583 F.3d

1059, 1060 (8th Cir. 2009). For better or worse, the decision of Congress to define

the scope of § 922(g)(9) by reference to elements rather than underlying facts means

that some persons may actually use force while committing a misdemeanor offense

against a spouse or intimate partner, yet remain outside that provision’s criminal
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prohibition. The courts, of course, must apply the statutes as written, and it appears

to me that Fischer is not a prohibited person under the governing definitions.

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