United States v. Smith

56 M.J. 711, 2001 CCA LEXIS 338, 2002 WL 13041
United States Air Force Court of Criminal Appeals·Decided December 18, 2001·No. ACM 34144·Published·Cited by 6 cases

Opinion

OPINION OF THE COURT

BRESLIN, Senior Judge:

The appellant was convicted, in accordance with his pleas, of making a false official statement, in violation of Article 107, UCMJ, 10 U.S.C. § 907, assaulting another airman by pointing an unloaded firearm at him, in violation of Article 128, 10 U.S.C. § 928, communicating a threat to another airman, in violation of Article 134, UCMJ, 10 U.S.C. § 934, and violating 18 U.S.C. § 922(g)(9) by possessing a firearm after being convicted of a misdemeanor crime of domestic violence, also in violation of Article 134, UCMJ. A military judge sitting alone sentenced the appellant to a bad-conduct discharge, confinement for 10 months, and reduction to E-l. The convening authority approved the sentence adjudged, but granted clemency and reduced the period of confinement to 8 months.

The appellant now alleges a variety of errors, focusing on the providence of his guilty plea to violating 18 U.S.C. § 922(g)(9). The appellant argues: 1) The military judge erred in finding that he was convicted of a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9); 2) That a conviction under 18 U.S.C. § 922(g)(9) is an unconstitutional violation of his due process rights; 3) That 18 U.S.C. § 922(g)(9) does not and cannot constitutionally apply to non-commercial possession of a firearm; 4) That his plea cannot be provident where the predicate offense does not require the use of force and had no interstate commerce nexus; and, 5) That 18 U.S.C. § 922(g)(9) unconstitutionally denies the appellant his right to keep and bear arms under the Second Amendment to the Constitution. In a different vein, he also asks that we return the record to determine whether the trial defense counsel reviewed the transcript before authentication, as required by Rule for Courts-Martial (R.C.M.) 1103(i)(l)(B). We find no prejudicial error and affirm. Article 59(a), UCMJ, 10 U.S.C. § 859(a).

Providence of Plea to Violating 18 U.S.C. § 922(g)(9).

The appellant offered to plead guilty, obtained a favorable pretrial agreement (PTA), stipulated to his guilt, repeatedly assured the military judge of the legal and factual basis for his guilt, received the benefit of the PTA, and thereafter sought and obtained additional clemency based in part upon his plea. Now the appellant claims he is not guilty of violating 18 U.S.C. § 922(g)(9) because his conviction for disorderly conduct is not a misdemeanor crime of domestic violence. However, prevailing case law does not support the appellant’s argument.

The appellant purchased a Smith & Wesson .40 caliber handgun in July 1999, and had a laser sight mounted on the top. In August 1999, the appellant struck his wife during a domestic dispute. He was originally charged in state court in Ohio with domestic violence, in violation of Ohio Revised Code (O.R.C.) 2919.25A. Pursuant to a plea agreement, he was convicted of the lesser crime of disorderly conduct, a misdemeanor in the fourth degree, in violation of O.R.C. 2917.11. On 14 January 2000, he was apprehended in possession of the Smith & Wesson handgun.

The appellant was charged with violating 18 U.S.C. § 922(g)(9) (known as the Lautenberg Amendment) by possessing a firearm after being convicted of a misdemeanor crime of domestic violence. 18 U.S.C. § 922(g)(9) provides, in pertinent part, “It shall be unlawful for any person ... who has been [713] convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm----”

18 U.S.C. § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as an offense that:

(i) is a misdemeanor under Federal or State 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 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.

The appellant pled guilty to this charge. The military judge properly advised him of the elements of the crime, and the appellant assured her that it correctly described what he did. Specifically, the appellant and counsel stipulated that his “conviction in an Ohio court in September 1999 meets the definition of a misdemeanor crime of domestic violence.” The military judge accepted the appellant’s plea.

During the sentencing portion of the trial, the prosecution offered the record of the appellant’s misdemeanor conviction. After reviewing the exhibit, the military judge reopened the providence inquiry to determine whether the appellant’s conviction for disorderly conduct, a misdemeanor in the fourth degree, constituted a “misdemeanor crime of domestic violence” under the federal law. The military judge concluded that the appellant’s conviction for disordei’ly conduct “is legally equivalent to an offense that is a misdemeanor crime of domestic violence, because the Ohio statute that you were convicted under includes an element of the use or attempted use of physical force or threatened use of a deadly weapon.” The appellant and his counsel concurred in the analysis, and reiterated the appellant’s desire to plead guilty to this offense. The military judge found the appellant guilty in accordance with his pleas.

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United States v. Smith, 56 M.J. 711, 2001 CCA LEXIS 338, 2002 WL 13041 (afcca 2001).

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