United States v. Hayes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4087
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
RANDY EDWARD HAYES,
Defendant − Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-608)
Submitted: March 30, 2009 Decided: June 18, 2009
Before WILLIAMS, Chief Judge, and MICHAEL and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Troy Nino Giatras, Charleston, West Virginia, for Appellant.
Rita R. Valdrini, Acting United States Attorney, Shawn Angus
Morgan, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury in the Northern District of West
Virginia indicted Randy Edward Hayes for three violations of 18
U.S.C.A. § 922(g)(9) (West 2000), which makes it “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 or ammunition.” After the
district court denied Hayes’s motion to dismiss the indictment,
Hayes entered a conditional guilty plea and appealed to this
court. We reversed, concluding that the district court should
have granted the motion to dismiss. United States v. Hayes, 482
F.3d 749 (4th Cir. 2007). Thereafter, the Supreme Court granted
certiorari, United States v. Hayes, 128 S. Ct. 1702 (2008),
reversed our decision, United States v. Hayes, 129 S. Ct. 1079(2009), and remanded the case for further proceedings. On
remand, we now conclude that Hayes’s conviction and sentence
must be affirmed.
I.
On February 24, 1994, Hayes was convicted in Marion County,
West Virginia, Magistrate Court of misdemeanor battery. The
victim was Hayes’s then-wife Mary Ann Hayes (now Mary Carnes),
with whom he cohabitated and had a child. Hayes was represented
by counsel during that prosecution, and his conviction remains
valid.
2
On July 25, 2004, deputies from the Marion County Sheriff’s
Department responded to a 911 call from Mary Carnes reporting
domestic violence at Hayes’s home. With Hayes’s consent, the
deputies searched the home and recovered a Winchester rifle.
Further investigation by the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) revealed that Hayes had possessed several other
rifles throughout 2004.
Based upon the ATF’s investigation, on January 4, 2005,
Hayes was charged in a three-count indictment with violating
§ 922(g)(9) and 18 U.S.C.A. § 924(a)(2) (West 2000). Hayes
moved to dismiss his indictment, arguing that his prior battery
conviction was neither a “misdemeanor crime of domestic
violence” (“MCDV”) under 18 U.S.C.A. § 921(a)(33)(A) (West 2000
& Supp. 2009), nor a qualifying predicate offense under
§ 922(g)(9). The Government filed a superseding indictment
alleging the same substantive counts but including a “Notice of
Additional Factors” detailing Hayes’s battery conviction and
arguing that the conviction qualified as a MCDV under
§ 921(a)(33)(A). 1 The “Notice of Additional Factors” alleged
1
That statute provides:
(33)(A) Except as provided in subparagraph (C), the
term “misdemeanor crime of domestic violence” means an
offense that-
(Continued)
3
that the victim in the battery conviction was Hayes’s spouse
with whom he shared a child and cohabitated.
Hayes again moved to dismiss, arguing principally that his
battery conviction was not a MCDV because it did not require, as
an element of the offense, the existence of a domestic
relationship. Relatedly, Hayes contended that the “Notice of
Additional Factors” was void because the domestic relationship
between him and the victim did not appear on the face of any
judicial documents in the battery conviction. Hayes contended
that, under Shepard v. United States, 544 U.S. 13 (2005), the
Government was prohibited from proving that relationship by
means of extrinsic evidence. The district court denied Hayes’s
motion and, on July 5, 2005, Hayes entered a conditional guilty
plea to Count One of the superseding indictment, reserving his
right to appeal the denial of his motion to dismiss. The
(i) is a misdemeanor under Federal, State, or Tribal
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[.]
18 U.S.C.A. § 921(a)(33)(A) (West 2000 & Supp. 2009).
4
district court later sentenced Hayes to five years of probation,
with the first six months served as home confinement. On
appeal, we reversed, concluding that Hayes’s battery conviction,
which did not “have as an element a domestic relationship
between the offender and the victim,” did not qualify as a
predicate offense under § 922(g)(9). Hayes, 482 F.3d at 751.
The Supreme Court granted certiorari and reversed, concluding
that “Congress defined ‘misdemeanor crime of domestic violence’
to include an offense ‘committed by’ a person who had a
specified domestic relationship with the victim, whether or not
the misdemeanor statute itself designates the domestic
relationship as an element of the crime.” Hayes, 129 S. Ct. at
1089. Thus, under § 922(g)(9), “it suffices for the Government
to charge and prove a prior conviction that was, in fact, for an
offense committed by the defendant against a spouse or other
domestic victim.” Hayes, 129 S. Ct. at 1084 (internal quotation
marks and alterations omitted). The Court remanded the case for
further proceedings consistent with its opinion.
II.
On remand, we are left to address Hayes’s additional
argument that the Government lacked judicially noticeable
evidence of a domestic relationship for the battery conviction
and should not have been allowed to prove the domestic
5
relationship with extrinsic evidence. We review de novo the
district court’s denial of a motion to dismiss an indictment.
United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).
According to Hayes, permitting the Government to prove the
domestic relationship by means of “extrinsic evidence” runs
afoul of Shepard and our decision in United States v.
Washington, 404 F.3d 834 (4th Cir. 2005). Hayes argues that,
consistent with these decisions, the domestic relationship must
be proven only by looking to the charging documents, the terms
of the plea agreement, the transcript of the plea colloquy, and
any explicit factual finding by the trial judge to which the
defendant assented. Thus, argues Hayes, the “Notice of
Additional Factors” is invalid and the indictment against him
defective.
We disagree. Hayes overlooks the fact that Shepard and
Washington apply only to judicial fact-finding; those decisions
operate as a safeguard for the defendant’s Sixth Amendment right
“to have a jury determine, beyond a reasonable doubt, his guilt
of every element of the crime with which he is charged,” United
States v. Gaudin, 515 U.S. 506, 522-23 (1995) and “any
particular fact that the law makes essential to his punishment,”
United States v. Booker, 543 U.S. 220, 232 (2005) (internal
quotation marks omitted). As the Shepard plurality explained,
“the Sixth and Fourteenth Amendments guarantee a jury standing
6
between a defendant and the power of the State, and they
guarantee a jury’s finding of any disputed fact essential to
increase the ceiling of a potential sentence.” 544 U.S. at 25.
Hayes points to no case law 2 supporting an extension of Shepard
and Washington to limit the Government’s ability to prove its
case to a jury at trial, and for good reason—no Sixth Amendment
concerns are raised by the Government’s use of extrinsic
evidence to prove a prior conviction to the jury. Indeed, the
Supreme Court’s decision in this case presages such a
conclusion; the Court explained:
To obtain a conviction in a § 922(g)(9)
prosecution, the Government must prove beyond a
reasonable doubt that the victim of the predicate
offense was the defendant’s current or former spouse
or was related to the defendant in another specified
way. But that relationship, while it must be
established, need not be denominated an element of the
predicate offense.
Hayes, 129 S. Ct. at 1087.
2
In his opening brief, Hayes relies principally on United
States v. Nobriga, 408 F.3d 1178 (9th Cir. 2005), withdrawn by
433 F.3d 1090 (9th Cir. 2006) for the proposition that the
Government must prove the domestic relationship by means of
judicially noticeable facts. In its later opinion, however, the
Ninth Circuit specified that the Government was permitted to
“prove[] the necessary domestic relationship at trial” and that,
like here, any “mismatch between the Hawaii and federal domestic
violence statutes is not a basis for invalidating the
indictment.” United States v. Nobriga, 474 F.3d 561, 564 (9th
Cir. 2006).
7
Presumably, if the Court had Sixth Amendment concerns with
the Government’s means of proving the victim of the predicate
offense, it would have mentioned them. 3
Shepard and Washington do not limit the Government’s
ability to prove its case in a § 922(g)(9) prosecution to a
jury. We thus agree with the district court that the Government
was permitted to prove the existence of the domestic
relationship with extrinsic evidence and that the indictment,
with its “Notice of Additional Factors,” was valid on its face.
III.
For the foregoing reasons, Hayes’s conviction and sentence
are
AFFIRMED.
3
Chief Justice Roberts, in dissent, did discuss Shepard v.
United States, 544 U.S. 13 (2005), and its predecessor, Taylor
v. United States, 495 U.S. 575 (1990), for the proposition that
the majority’s approach would “often” make it “necessary to go
beyond the fact of conviction and engage in an elaborate
factfinding process regarding the defendant’s prior offense.”
Hayes v. United States, 129 S. Ct. 1079, 1092 (2009) (Roberts,
C.J., dissenting) (internal quotation marks and alterations
omitted). Tellingly, Chief Justice Roberts alluded only to the
“practical difficulties and potential unfairness of a factual
approach,” not to any potential Sixth Amendment concerns. Id.(internal quotation marks omitted).
8