1 The Honorable Joseph F. Bataillon, Chie f Judge, United States District Court for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3164

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Delroy Fischer, *
* Defendant - Appellant. *

___________ Submitted: May 10, 2011 Filed: June 17, 2011

___________ Before MURPHY, BEAM, and COLLOTON, Circuit Judges.

___________ MURPHY, Circuit Judge. Delroy Fischer was charged with posse ssion 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 court 1 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-2- affidavit alleged that Fisc her had yelled at, struck, and bit the nose of his former girlfriend, who was also the mother of hi s 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 inthe arrest warrant an d affidavit, and the court accepted those allegations as th e "factual basis" of Fischer's plea.

More than two years later, Fischer's girlfriend reported to the police a domestic disturbance involving Fischer. By Fische r's own admission he had gotten angry and fired a shotgun. He was charged with po ssession of a firearm af ter 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 domes tic 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 c onduct, the district court conc luded 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 convi cted of, violating Neb. Rev. Stat. § 28-310, which does not re quire a finding of assau lt 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 dueprocess claim, it is nonetheless unpersuasive. SeeUnited States v. Amerson , 599 F.3d 854, 855 (8th Cir. 2010) (per curiam) ("Courts do not have a general duty to inform defe ndants of specific, detailed consequences of their pleas.").
-3- 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 limin e 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 serv e as the predicate of fense for a federal firearms violation. The district court rej ected this argument, concluding that the state court had no duty to give such advice.

Fischer subsequently entered a conditi onal 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 pl ea 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. SeeUnited States v. Limley , 510 F.3d 825, 827 (8th Cir. 2007) (conditional plea must "identify preci sely" the pretrial issues preserved for appellate review). 2The only question properly before this court is whether Fischer's state court conviction of atte mpted assault in the third degree qualifies as a predicate “misdemeanor crime of domestic violence."

We review de novo the district court's de nial 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 mi sdemeanor 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,"-4- 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 w ith whom the victim shares a child in common, by a person who is cohabiti ng with or has c ohabited with the victim as a spouse, parent, or guard ian, 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 incide nt 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 underlyi ng 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 pl ea colloquy, and any e xplicit factual findings by the trial judge to which th e defendant assented." Id. (quoting United States v. Howell , 531 F.3d 621, 623 (8th Cir. 2008)).-5- Fischer argues that the district court e rred 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 stat ed that it accepted the allegations contained in the arrest warrant and s upporting affidavit as the "factual basis" of Fischer's plea. Those documents indicate that Fischer physi cally 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). SeeSmith , 171 F.3d at 620–21 (an expanded inquiry is appropriateto 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 hypothe tical defendant could cause bodily injury to another person without using physical for ce. 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 f acts 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 th at the state court's nunc pro tunc order did not change this analysis. That or der 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.-6- Such an element is not required for ch aracterization as misdemeanor crime of domestic violence. SeeHayes , 129 S. Ct. at 1087.

Because Fischer's state court conviction satisfied the force requirement and there was no question that he had a domes tic relationship with the victim, that conviction served as a predicate misdemea nor crime of domestic violence for criminal liability under 18 U.S.C. § 922(g)(9). We concl ude 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 convicti on 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 convi cted of a “misdemeanor crime of domestic violence.” This crime is de fined 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 th at the defendant used force against his girlfriend. 599 F.3d at 855. The dispos itive 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 us e the judicial record of the defendant’s-7- 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 chargi ng papers and jury instructions, but only to determine which part of the statute the de fendant violated.”). Once the offense of conviction is identified, the court’s anal ysis 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 partic ular 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 a nd 28-310(1)(a). The judicial record shows that he was convicted for intentionally and knowi ngly 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 fo rce, because the Stat e can establish that the offense was committed without proving a us e 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 clearwhile knowing that the driver is likely to cause an accident and suffer injury by proceeding. Judicial decisions concerning comparable statutes provi de 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-8- 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 de adly 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 elemen t, the use, attempted use, or threatened use of physical force against the person of another, becauseit was “difficult, if not impossible, to imagine how the charged conduc t could be carried out w ithout 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 offens e of conviction required proof of an “act which is intended to causepain or injury to, or which is intended to result in physical contact which will be insulti ng or offensive to another ,” Iowa Code § 708.1(1) (emphasis added), and “such physical cont act, 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 Ci r. 2004) (en banc); but cf. United States v. Salean , 583 F.3d 1059, 1060 (8th Cir. 2009). For better or wo rse, the decision of Congress to define the scope of § 922(g)(9) by reference to el ements rather than underlying facts means that some persons may actually use for ce while committing a misdemeanor offense against a spouse or intimate partner, yet remain outside that provision’s criminal-9- 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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