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United States v. Cody James Horse Looking

United States Court of Appeals, Eighth Circuit

July 11, 2016

United States of America, Plaintiff- Appellee,
v.
Cody James Horse Looking, Defendant-Appellant.

          Submitted: February 12, 2016

         Appeal from United States District Court for the District of South Dakota - Pierre

          Before SMITH and COLLOTON, Circuit Judges, and GRITZNER, [1] District Judge.

          COLLOTON, Circuit Judge.

         Cody James Horse Looking was charged in August 2014 with unlawful possession of a firearm by a person "who has been convicted in any court of a misdemeanor crime of domestic violence." See 18 U.S.C. § 922(g)(9). Horse Looking moved to dismiss the indictment on the ground that he had not sustained a qualifying prior conviction. The district court denied the motion, and Horse Looking entered a conditional guilty plea, reserving his right to appeal the district court's ruling. We conclude, based on the relevant judicial records under the required analytical approach, that Horse Looking's prior conviction does not meet the definition of a "misdemeanor crime of domestic violence."

         Under 18 U.S.C. § 922(g)(9), any person "who has been convicted in any court of a misdemeanor crime of domestic violence" is prohibited from possessing a firearm. A "misdemeanor crime of domestic violence" must have, "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon." 18 U.S.C. § 921(a)(33)(A)(ii). The perpetrator also must have a familial or similar domestic relationship to the victim. Id.

         In 2010, a grand jury in Hughes County, South Dakota, charged Horse Looking with "Simple Assault Domestic Violence." The South Dakota simple assault statute provides in relevant part:

Any person who:
(1) Attempts to cause bodily injury to another and has the actual ability to cause the injury;
(2) Recklessly causes bodily injury to another;
(3) Negligently causes bodily injury to another with a dangerous weapon;
(4) Attempts by physical menace or credible threat to put another in fear of imminent bodily harm, with or without the actual ability to harm the other person; or
(5) Intentionally causes bodily injury to another which does not result in serious bodily injury; is guilty of simple assault.

S.D. Codified Laws § 22-18-1. The indictment charged Horse Looking in the alternative with violating subsections (1), (4), and (5). It also alleged that the assault involved a domestic relationship. See S.D. Codified Laws § 25-10-34 (requiring the state's attorney to indicate on an indictment whether the charge involves domestic abuse).

         To determine whether a conviction qualifies as a misdemeanor crime of domestic violence, we must apply the Supreme Court's "categorical approach." United States v. Castleman, 134 S.Ct. 1405, 1413 (2014). In that analysis, we look to the statute of conviction to determine whether it "necessarily 'ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.'" Id. (alteration in original) (quoting 18 U.S.C. ยง ...


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