1The Honorable Michael J. Melloy, Chief Judge, United States District

Court for the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4227

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United States of America,

Appellee,

v.

William Maurice Smith,

Appellant.

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Appeal from the United States

District Court for the

Northern District of Iowa.

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Submitted: October 21, 1998

 Filed: March 24, 1999

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Before McMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

William Maurice Smith conditionally pleaded guilty to two firearm charges.

He conditioned his plea on the right to appeal the district court's1 denial of his

motions to dismiss the indictment. Smith now appeals the denial of those motions.

He also appeals one aspect of his sentence. We affirm.
2

I.

The facts underlying the current federal firearm charges occurred in 1996 when

Smith, who was then twenty years old, bought a gun with a driver's license that listed

his age as twenty-one. On November 17, 1996, Smith shot and wounded Lauralee

Lorenson during an argument. The grand jury returned a three-count superseding

indictment based on these events. Smith's motions to dismiss the indictment were

denied by the district court. Smith then conditionally pleaded guilty to one count of

making false representations in connection with the purchase of a firearm, see 18

U.S.C.A. § 922(a)(6) (West. Supp. 1998), and one count of possessing a firearm after

having been convicted of a misdemeanor involving domestic violence. See 18

U.S.C.A. § 922(g)(9). Smith was sentenced to 51 months in prison to be followed by

a three year term of supervised release.

The predicate offense for Smith's § 922(g)(9) charge is an Iowa simple

misdemeanor assault conviction. In 1994, Smith pleaded guilty to assault, see Iowa

Code §§ 708.1; 708.2(4) (1994), involving an incident with Lorenson, the mother of

his child and the victim of the later shooting involved in the current federal offense.

The state court appointed counsel to represent Smith on the assault charge, but his

counsel did not appear at his plea hearing on November 28, 1994. Following his

counsel's failure to appear at the hearing, Smith signed a "Waiver of Right to

Counsel" and pleaded guilty to simple misdemeanor assault. He was fined $100. 

II.

We review de novo the district court's denial of Smith's motions to dismiss the

indictment. See United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997), cert.

denied, 118 S. Ct. 1398 (1998). Smith challenges the application to his case of 18

U.S.C.A. § 921(a)(33), which defines a "misdemeanor crime of domestic violence,"

arguing that: 1) Iowa Code § 708.1, which defines assault, does not contain the
3

required elements of: a) the use or attempted use of physical force, and b) a domestic

relationship; and 2) he did not intelligently and knowingly waive his right to counsel

at the underlying plea hearing as required by § 921(a)(33)(B)(i)(I). Smith also

challenges the constitutionality of § 921(a)(33), arguing it: 1) is vague and overbroad;

and 2) violates equal protection. Finally, Smith argues that Article IV, Section 4 of

the United States Constitution prevents application of U.S.S.G. § 2A2.2 to this case

of domestic violence.

A. Statutory Challenges to § 922(g)(9)

1. Elements of Predicate Offense 

Congress enacted 18 U.S.C. § 922(g)(9) in 1996, providing: "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." 

Section 921(a)(33)(A)(ii) defines "misdemeanor crime of domestic violence" as one

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, . . . [or] by a person

with whom the victim shares a child." The government concedes that § 921(a)(33)

requires the predicate misdemeanor crime to "ha[ve], as an element, the use or

attempted use of physical force." (See Appellee's Br. at 6.) Smith contends that the

predicate misdemeanor must also have, as an element, a domestic relationship

between the perpetrator and the victim, and argues that his predicate offense of simple

assault does not contain this element. 

In construing a statute, we look first to the plain meaning of the words of the

statute. See Salinas v. United States, 118 S. Ct. 469, 474 (1997). Only if the statute

is ambiguous do we look to the legislative history to determine Congress's intent. See

United States v. Gonzales, 117 S. Ct. 1032, 1035 (1997). In the statute at issue, the

singular term "element" modifies the phrase "the use or attempted use of physical
4

force . . . ." If Congress meant the predicate misdemeanor to have two elements, it

would have used the plural form of "element." See United States v. Green, 902 F.2d

1311, 1312 (8th Cir.), cert. denied, 498 U.S. 943 (1990). We find the language of the

statute to be unambiguous, and look to the legislative history only to bolster our

conclusion: "[C]onvictions for domestic violence-related crimes often are for crimes,

such as assault, that are not explicitly identified as related to domestic violence." 142

Cong. Rec. S11872-01, *S11878 (1996) (statement of Sen. Lautenberg). In

recognizing that domestic violence-related crimes often involve crimes which are not

necessarily so designated, Congress evinced its intent that the predicate offense need

not contain a domestic relationship as an element. Thus, we hold that while §

921(a)(33) requires proof of a domestic relationship, it requires the predicate

misdemeanor to have only one element: the use or attempted use of physical force (or

its alternative, the threatened use of a deadly weapon, a situation not here presented).

Smith pleaded guilty to simple misdemeanor assault under Iowa Code §

708.2(4). The Iowa assault statute distinguishes between aggravated misdemeanor

assaults, serious misdemeanor assaults, and simple misdemeanor assaults based on

the level of intent and whether a dangerous weapon was involved. See Iowa Code §

708.2(1)-(4). All assaults are defined by reference to § 708.1, which defines "assault"

as occurring when a person does any of the following: 

(1) Any 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 . . . . 

(2) Any act which is intended to place another in fear of immediate

physical contact which will be painful, injurious, insulting, or offensive

. . . . 

Thus, a generic assault in Iowa may include, as an element, placing another in fear of

imminent physical contact. If Smith pleaded guilty to § 708.1(2), then he was not
5

convicted of an offense that "has, as an element, the use or attempted use of force."

18 U.S.C.A. § 921(a)(33)(A)(ii).

When statutory language dictates that predicate offenses contain enumerated

elements, we must look only to the predicate offense rather than to the defendant's

underlying acts to determine whether the required elements are present. See United

States v. Wright, 957 F.2d 520, 522 (8th Cir.) (construing United States Sentencing

Guidelines (U.S.S.G.) § 4B1.2(1)(i), which defines "crime of violence" as an offense

that "has as an element, the use, attempted use, or threatened use of physical force"

(emphasis added)), cert. denied, 506 U.S. 856 (1992). We may expand our inquiry

under this categorical approach to review the charging papers and jury instructions,

if applicable, only to determine under which portion of the assault statute Smith was

convicted. See Taylor v. United States, 495 U.S. 575, 602 (1990). 

This case is quite similar to Taylor, which involved a sentence enhancement

under 18 U.S.C. § 924(e) for prior burglaries. The Supreme Court read § 924(e) as

requiring the predicate burglary offense to contain the elements of generic burglary,

precluding a court from looking to the defendant's underlying conduct. See Taylor,

495 U.S. at 600-01. The Court noted that the federal sentencing court could go

beyond the mere fact of conviction, for example, and look to the charging papers and

jury instructions to determine if the jury was required to actually find the elements of

generic burglary in order to convict the defendant. Id. at 602. The Supreme Court

remanded Taylor because the Court could not determine, from the record before it,

under which subsection of the Missouri burglary statute the defendant had pleaded

guilty and been convicted. Id. On remand, the government produced the charging

papers, which detailed the elements of the crimes to which the defendant had pleaded

guilty, though the papers did not include a reference to the specific section of the state

burglary statute. See United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert.

denied, 502 U.S. 888 (1991). On appeal from the remand, we held that it was

appropriate under the Supreme Court's ruling in a case where the predicate
2Smith argues that § 708.1(1) contains, as an element, physical contact that

is merely insulting or offensive. However, such physical contact, by necessity,

requires physical force to complete. Thus, we find little merit to this argument. 

6

convictions were the result of a guilty plea, to look to the charging papers to

determine to which section of a statute a defendant pleaded guilty. See id. at 707-08.

See also United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.) (looking to the

information's specific allegations where the defendant pleaded guilty to a predicate

act of burglary to determine if the predicate act was generic burglary under Taylor;

district court can look to the "charging document as a whole"), cert. denied, 119 S.

Ct. 126 (1998). 

The state court complaint accused Smith of "commit[ting] an act which was

intended to cause pain or injury to another, coupled with the apparent ability to

execute said act." (Appellee's App. at 20.) The complaint recited that Smith grabbed

Lorenson "by the throat, and did also push her down." (Id.) Thus, Smith was charged

under Iowa Code § 708.1(1), for committing an act intended to cause pain, injury, or

offensive or insulting physical contact, rather than § 708.1(2), for placing one in fear

of such contact. As such, Smith was charged, and pleaded guilty to, an offense with

an element of physical force within the meaning of 18 U.S.C.A. § 921(a)(33)(A)(ii).2

2. Knowing and Intelligent Waiver Under § 921(a)(33)

Section 921(a)(33)(B)(i) provides that a person is not considered to have been

convicted of a misdemeanor crime of domestic violence unless he was represented by

counsel in the case or voluntarily and intelligently waived his right to counsel. Smith

was appointed counsel for his Iowa assault charge but his counsel failed to appear at

the plea hearing. After waiting for Smith's counsel to appear, the state magistrate

asked Smith if he wanted to proceed with a proposed plea agreement. Though the

record is unclear as to the exact exchange, the magistrate indicated that her general
3The waiver form that Smith signed was for the crime of First Offense

Assault/Domestic Abuse because the court did not have a form for simple assault. 

However, Smith concedes that he knew at all times that he was only charged with

simple assault and that he faced a $100 fine pursuant to the plea agreement.

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practice would have been to continue the proceeding to another day if Smith had

requested the court to wait for his counsel. Smith does not claim to have made such

a request and offers no evidence that the magistrate deviated from her normal

practice. Smith's previous request for, and receipt of, appointed counsel shows his

understanding of his right to, and the usefulness of, counsel. Additionally, Smith

signed a form waiving his right to counsel3 before entering the plea. A written waiver

of counsel can be the basis for a valid waiver. See United States v. Turner, 975 F.2d

490, 496 (8th Cir. 1992), cert. denied, Dowdy v. United States, 506 U.S. 1082 (1993);

United States v. Thomas, 543 F.2d 1226, 1228 (8th Cir. 1976), cert. denied, 429 U.S.

1051 (1977). The evidence of Smith's written waiver, coupled with his prior

invocation of his right to appointed counsel, and the acceptance of his waiver by the

Iowa magistrate who took his plea, sufficiently show, and allow us to conclude as a

matter of law, that Smith voluntarily and knowingly waived his right to counsel at the

plea hearing for purposes of § 921(a)(33)(B). 

Smith contends that his waiver was not voluntary because his counsel was not

present at the time of the waiver. There is no Sixth Amendment right to appointed

counsel for a misdemeanor crime if the defendant's sentence does not include

imprisonment. See Nichols v. United States, 511 U.S. 738, 746 (1994); Scott v.

Illinois, 440 U.S. 367, 373-74 (1979). Smith's sentence was a $100 fine. Smith's

right to appointed counsel arose under Iowa Rule of Criminal Procedure 42. Fifth

Amendment jurisprudence prevents police officers from instigating interrogation of

a defendant once he has invoked his constitutional right to counsel, unless that right

has subsequently been waived in the presence of the attorney. See McNeil v.

Wisconsin, 501 U.S. 171, 176-77 (1991). The purpose of this rule is to prevent a

zealous police officer from coercing a defendant into waiving the already exercised
4Although Smith characterizes this constitutional challenge as a vagueness

and overbreadth challenge, he makes only the vagueness argument. We limit our

discussion accordingly.

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right to counsel so that the officer can then interrogate him. Id. at 177. Smith has not

cited, and we have not found, any support for extending this Fifth Amendment

prophylactic rule regarding the constitutional right to counsel in a custodial

interrogation setting to a state statutory right to counsel at trial when a neutral judge

supervises the execution of a waiver in the course of a hearing. The purpose of the

rule does not justify such an extension. The court is not the defendant's adversary,

and there is much less chance of coercion. None was shown here. Thus, we reject

Smith's argument.

B. Constitutional Challenge

1. Vagueness4

Smith contends that § 921(a)(33) is vague because it does not require the

predicate misdemeanor offense to include elements of both physical force and a

domestic relationship. Because we have found that § 921(a)(33) requires the

predicate offense to include an element of physical force, we address Smith's

vagueness challenge concerning the existence of a domestic relationship.

To determine whether a criminal statute meets a vagueness challenge, we must

assess "whether 'men of common intelligence must necessarily guess at its meaning

and differ as to its application.'" Planned Parenthood of Minn. v. Minnesota, 910

F.2d 479, 482 (8th Cir. 1990) (quoting Baggett v. Bullitt, 377 U.S. 360, 367 (1964)).

We are concerned about criminal statutes that lead to "arbitrary and erratic arrests and

convictions." United States v. Donahue, 948 F.2d 438, 441 (8th Cir. 1991) (internal

quotations and citations omitted), cert. denied, 503 U.S. 976 (1992). Section
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921(a)(33) applies to any misdemeanor crime that has an element of physical force

and that was "committed by a current or former spouse, . . . [or] a person with whom

the victim shares a child." We would be hard pressed to find an individual of

common, or even not so common, intelligence who could not determine whether he

was in one of the enumerated relationships when he committed a misdemeanor crime

including an element of physical force. 

Smith argues that because Iowa also has a specific domestic abuse assault

statute,see Iowa Code Ch. 708.2A, and he was charged with and pleaded guilty to the

separate offense of simple misdemeanor assault, he was not fairly apprised that his

conduct was forbidden by § 922(g)(9). We find this argument unconvincing. As we

explained above, 18 U.S.C.A. § 921(a)(33) is unambiguous and does not require the

underlying misdemeanor to contain a domestic relationship element. The fact that

Smith could have been convicted under two misdemeanor statutes, one of which was

arguably more applicable to the proscribed conduct, does not negate notice that

conviction under the other similarly relevant misdemeanor statute could also serve

as a predicate offense for § 922(g)(9).

2. Equal Protection

 Section 921(a)(33)(B)(ii) provides an exception to the application of §

922(g)(9) "if the conviction has been expunged or set aside, or is an offense for which

the person has been pardoned or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under such an offense)."

As in most states, civil rights are not stripped from individuals convicted of a

misdemeanor in Iowa. Thus, in Iowa, an individual convicted of a misdemeanor

cannot benefit from the federal restoration exception. In contrast, a person convicted

of a variety of Iowa felony offenses, including those potentially involving domestic

relationships, can have his civil rights restored and thereby fit within a similar
5Section 924(e) defines "violent felony" to include misdemeanors with

potential prison sentences over two years by reference to § 922(g)(1). See also 18

U.S.C.A. § 920(a)(20).

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exception to § 922(g)(1), allowing a felon to once again possess a firearm. See 18

U.S.C.A. § 921(a)(20).

Smith argues he should fit within the restoration exception because the end

result is the same--he is still possessed of his civil rights, regardless of whether he had

them restored or he never lost them in the first place. See United States v. Indelicato,

97 F.3d 627 (1st Cir. 1996), cert. denied, 117 S. Ct. 1013 (1997). Indelicato avoided

an equal protection challenge by indulging in a fiction. The court found that a person

convicted of a misdemeanor that nevertheless fit within the scope of a violent felony

under 18 U.S.C.A. § 924(e),5 and who subsequently did not have his civil rights

forfeited, still qualified for the restoration exception of § 921(a)(20). See id. at 629

(noting that this interpretation directly conflicts with the literal language of "restored"

but indicating that the court did not feel bound by the literal language of the statute).

We are not at liberty to engage in the fiction created by Indelicato, however, because

§ 921(a)(33) includes language that precludes such a fiction. The restoration

exception of § 921(a)(33) only applies to "civil rights [that have been] restored (if the

law of the applicable jurisdiction provides for the loss of civil rights under such an

offense)." 18 U.S.C.A. § 921(a)(33)(B)(ii) (emphasis added). This parenthetical

language is not contained within § 921(a)(20), which was applied in Indelicato.

Additionally, to apply such a fiction to § 922(g)(9), aimed at misdemeanors, would

be to vitiate the statute because most misdemeanor convictions do not result in the

loss of civil rights. Thus, almost all misdemeanants would fit within the exception

and the exception would swallow the rule. Such a result is to be avoided. 
6The Fifth Amendment due process clause incorporates the principles of

equal justice under the law applicable to the federal government. See Lyng v.

Castillo, 477 U.S. 635, 636 n.2 (1986).

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Because we refuse to include Smith within the restoration exception, he asserts

that his right to equal protection afforded him by the Fifth Amendment6 has been

violated. Both parties' briefs argued under the rational basis standard of review

without addressing which standard should apply. Smith argued orally that strict

scrutiny applies because his constitutional right to bear arms was being infringed

upon. However, the rational basis standard is appropriate because the Second

Amendment is inapplicable. See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980)

(finding no Constitutional violation unless possession of a weapon has a reasonable

relationship to the militia); Hale v. United States, 978 F.2d 1016, 1019 (8th Cir.), cert.

denied, 507 U.S. 997 (1993).

In applying the rational basis standard, "we presume legislation is valid and

will sustain it if the classification drawn by the statute is rationally related to a

legitimate [governmental] interest." Chance Mgmt. Inc. v. South Dakota, 97 F.3d

1107, 1114 (8th Cir. 1996) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473

U.S. 432, 440 (1985)), cert. denied, 117 S. Ct. 1083 (1997). Smith carries the burden

of proving that the distinction is wholly arbitrary and irrational, see id., "and that it

cannot conceivably further a legitimate governmental interest." United States v.

Phelps, 17 F.3d 1334, 1345 (10th Cir.), cert. denied, 513 U.S. 844 (1994). 

Smith argues that this distinction--between a misdemeanant who is ineligible

for the restoration exception because he never lost his civil rights and a felon who has

had his civil rights restored--fails even the rational basis standard. This distinction

is caused by Congress's reference to state laws that differ in the application of their

restoration rules. See McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir. 1995)

(noting the different types of restoration mechanisms employed by different states,
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from automatic restoration upon release from imprisonment to no restoration at all),

cert. denied, 516 U.S. 1121 (1996). The distinction between misdemeanants and

felons has not been addressed by a court of appeals under § 922(g)(9), but it has been

addressed under related circumstances. The Second Circuit faced a similar issue in

McGrath, involving a felon who, because he received a suspended sentence, did not

forfeit his civil rights and thus could not have them restored under § 921(a)(20). The

court rejected the defendant's equal protection claim that he was invidiously

discriminated against because other, more serious felons were able to use the

restoration exception merely because their felony conviction caused them to lose their

civil rights, which were later restored. See id. at 1007. The court found that

Congress intended the effect--if not the result--that occurred in that case, noting that

the civil rights restoration exception was passed in response to a Supreme Court case

which tried to federalize a felon's status. See id. at 1008-09 (noting the imperfections

of the statute, yet finding it rationally related to a legitimate governmental interest).

The court found it was rational for Congress to rely on "a state's judgment that a

particular person or class of persons is, despite a prior conviction, sufficiently

trustworthy to possess firearms," despite the anomalous results. Id. at 1009. Other

courts have similarly found that Congress has a rational basis for relying on state

restoration statutes in distinguishing between who can possess a firearm and who

cannot. See, e.g., United States v. Collins, 61 F.3d 1379, 1383 (9th Cir.), cert. denied,

516 U.S. 1000 (1995); Phelps, 17 F.3d at 1345.

Congress knew that the states had widely divergent laws regarding pardon,

expungement, and restoration of civil rights. This was true not only when Congress

enacted § 921(a)(20), but even more so when it enacted § 921(a)(33) in 1996, ten

years after enacting the much criticized restoration exception in § 921(a)(20). See

McGrath, 60 F.3d at 1009 (noting various courts that have criticized the disparate

treatment involving the restoration exception of § 921(a)(20) based on divergent state

laws). Yet, Congress continued to look to state law to define the restoration
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exception, noting that the exception in § 921(a)(33) was modeled after that contained

in § 921(a)(20). See 142 Cong. Rec. S11872-01, *S11877. 

Congress was cognizant of the disparity it would create. See id. ("Loss of these

[civil] rights generally does not flow from a misdemeanor conviction, and so this

language is probably irrelevant to most, if not all, of those offenders covered because

of the new ban.") (statement of Sen. Lautenberg). However, Congress was concerned

with domestic abuse offenders who were successful in pleading a felony charge down

to a misdemeanor and thus escaping the effect of the felon-in-possession statutes. See

id. at S11876. An earlier version of the bill did not cover attempted use of physical

force or threatened use of a weapon. See id. at S11877. The change reflects

Congress's concern that an individual in a domestic relationship who would attempt

to use physical force or threaten use of a weapon was as dangerous as one who

actually committed an act of physical force and similarly should not be allowed to

possess a firearm. See id. Congress was concerned with the exact situation faced

here: preventing a known (from the fact of the misdemeanor conviction) domestic

abuser from later using a firearm to inflict the next bout of abuse. See id. at 11876.

The district court reached the same conclusion. (See Sentencing Tr. at 119 ("[I]f

there was ever a case which proved the wisdom of congressional action in prohibiting

a person convicted of domestic assault from possessing a firearm, it's a case such as

this.").) 

Smith notes various Iowa felonies for which a convicted felon may seek the

restoration of civil rights, including attempted murder, manslaughter, and third degree

sexual assault. See Iowa Code § 914.7. He argues that there is no rationale for

allowing an individual who has attempted to murder his spouse to possess a firearm

by way of the restoration exception while preventing an individual who has "merely"

(if that is the correct term) pushed his wife from doing so.

 
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Smith has conveniently ignored the whole of the exception within § 921(a)(33).

Congress did not limit the exception to restoration of civil rights, but also provided

other methods--expungement and pardon--by which Smith could make use of the

exception. For example, he could seek to have his misdemeanor conviction pardoned

under Iowa law. See Iowa Const. art. 4, § 16; Iowa Code § 914.2 (1997) ("[A] person

convicted of a criminal offense has the right to make application . . . to the governor

for a reprieve, pardon, . . . or restoration of rights of citizenship at any time following

the conviction."). Notably, in Iowa, the method for receiving a pardon and for

receiving the restoration of one's civil rights is the same--both require application to

the governor. See id. Though a pardon may not be Smith's preferred method of

avoiding the consequences of his prior misdemeanor conviction, it still allows Smith

an avenue for fitting within the exception to § 921(a)(33). See McGrath, 60 F.3d at

1009 (noting Congress provided other mechanisms of relief); National Ass'n of Gov't

Employees, Inc. v. Barrett, 968 F. Supp. 1564, 1574-75 (N.D. Ga. 1997) (finding no

equal protection violation under § 922(g)(9) because Congress provided

misdemeanants the same mechanisms for avoiding the firearm ban under § 921(a)(33)

as it provided felons under 921(a)(20)), aff'd, Hiley v. Barrett, 155 F.3d 1276, 1277

(11th Cir. 1998) (affirming "for the reasons stated in the district court's thorough and

well-reasoned order."). 

We hold that, because Smith can receive a pardon from the governor of Iowa,

similar to a felon who can receive restoration of his civil rights, § 921(a)(33) does not

invidiously discriminate against him. Further, it was entirely rational for Congress

to extend the firearm ban to those convicted of misdemeanors where physical force

was used involving domestic relationships, relying on state law to determine who

would fit within the exception. Thus, Smith's equal protection rights were not

violated.

III.
15

Smith's remaining contention is that his sentencing violates the Domestic

Violence Clause of the Constitution. See U.S. Const. art. IV, § 4. Suffice it to say

that when that Clause speaks of "domestic Violence" it means insurrection, riots, and

other forms of civil disorder. It has no application to the Congress's powers to

regulate the possession of handguns under the Commerce Clause. Smith's argument

is not only unconvincing--it borders on the frivolous. 
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For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT