We thus conclude that the phrase 'physical force' in §921(a)(33)(A)(ii) means force, greater than a mere offensive touching, that is capable of causing physical pain or injury to the victim. Accordingly, a conviction for assault and battery in Virginia does not require 'physical force' as an element of the crime. As a consequence, a Virginia conviction for assault and battery under VA CODE ANN. § 18.2-57.2, in and of itself, does not meet the definition of a §922(g)(9) 'misdemeanor crime of domestic violence.' Applying the 'modified categorical approach' outlined in Taylor v. United States, 495 U.S. 575 (1990) and Shepard, the record is devoid of any qualifying documentation to show White's conviction under VA CODE ANN. § 18.2-57.2 was otherwise 'a misdemeanor crime of domestic violence' under §922(g)(9). We therefore reverse White's conviction and vacate his sentence.
Monday, June 07, 2010
Common Law Battery Not Always MCDV
US v. White: White was charged with possessing a firearm after sustaining a misdemeanor crime of domestic violence (MCDV). The underlying offense was a Virginia conviction for domestic battery. In the Commonwealth, "battery" retains its common law definition, and so includes "offensive touching" in addition to an act causing injury. Applying the Supreme Court's recent decision in Johnson, in which it held simple touching doesn't constitute "physical force" for ACCA purposes, the Fourth Circuit concluded the same applied to the MCDV definition: