United States District Court, N.D. Mississippi
For Brandon Cotreall Smith, Defendant: FPD, Gregory S. Park, LEAD ATTORNEYS, FEDERAL PUBLIC DEFENDER'S OFFICE, Northern District of Mississippi, Oxford, MS.
For USA, Plaintiff: Susan Spears Bradley, LEAD ATTORNEY, Robert H. Norman, U.S. ATTORNEY'S OFFICE, Oxford, MS.
Sharion Aycock, U.S. DISTRICT JUDGE.
Defendant Brandon Smith was indicted pursuant to Title 18 United States Code Section 922(g)(9) for knowingly possessing a firearm after having previously been convicted in a court of a misdemeanor crime of domestic violence. After pleading guilty to the count as charged, Defendant filed a Motion to Withdraw the Plea of Guilty  and a Motion to Dismiss the Indictment . A hearing was held on the Motion to Dismiss on August 13, 2014. After hearing the arguments of counsel, the Court took the matter under advisement and now rules as follows:
Factual and Procedural Background
Brandon Smith was twice convicted of Simple Assault-Domestic Violence pursuant to Mississippi Code Section 97-3-7 (2010), once in 2008 and once in 2010. In 2013, he was federally charged with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence. See Indictment ; 18 U.S.C. § 922(g)(9). Smith contends that the federal indictment must be dismissed as the elements of the Mississippi simple assault domestic violence statute proscribes conduct broader than allowed for that conviction to be used as a predicate offense under 18 U.S.C. Section 922(g)(9). In particular, Defendant contends that the Mississippi statute under which he was convicted is lacking the element " use of physical force."
Analysis and Discussion
Title 18 United States Code 922(g)(9) makes it unlawful for any person " who has been convicted in any court of a misdemeanor crime of domestic violence . . . to possess . . . any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The term " misdemeanor crime of domestic violence" is further defined as " a misdemeanor under Federal, State or Tribal law" which
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.
18 U.S.C. § 921(a)(33)(A).
The Mississippi statute in force at the time Smith was convicted stated that " [a] person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section" against a victim with whom the defendant has or had a domestic relationship. ...