Is Domestic Violence a Crime of Violence under USSG?
In U.S. District Court in Montana, in United States v. Benito Craig Castro, Mr. Castro pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Park rangers in Bighorn Canyon National Recreation Area on patrol spotted drug paraphernalia in Castro’s vehicle and then later found him, searched his backpack and found a firearm in his belongings.
In calculating Mr. Castro’s recommended sentence under the United States Sentencing Guidelines (U.S.S.G.), the district court judge increased his offense level based on a finding that Castro had previously committed a crime of violence. This crime was a conviction in Montana state court for partner or family member assault (“PFMA”). Castro was then sentenced to 50 months in federal prison.
He had suffered three such prior convictions – two in 2013 and one in 2017. In one of the offenses, Mr. Castro “grabbed [the victim] by the neck” and “then threw her to the ground and hit her face on a glass door.” However, in each conviction, the allegation under Montana law was to the full Montana statute definition of PMFA.
Mr. Castro appealed this ruling to the United States Court of Appeals in Seattle, Washington. This article is presented for our readers because California falls within the Ninth Circuit, so the interpretation of federal law that applies to Mr. Castro would equally apply to a person within California facing the same issue.
Moreover, due to a recent California state opinion in Jennifer Ann Hatley v. James Braddy Southard from the California Court of Appeal for the Fourth District in Riverside holding that California’s Family Code § 6203 (Domestic Violence Prevention Act) includes conduct that causes economic harm, i.e., prevents a spouse or boyfriend / girlfriend from performing his or her occupation, taking away the person’s credit card, or phone. We regard this opinion as likely to ultimately redefine criminal domestic violence to more broadly include similar conduct.
Therefore, the Castro case should be noted with applause for anyone in federal court with a prior conviction under California law for violating California Penal Code § 273.5(a) (domestic violence).
Montana’s PFMA statute penalizes intentionally causing “bodily injury.” While bodily may sound like in entails “force capable of causing physical pain or injury to another person,” (Johnson v. United States (2010) 559 U.S. 133, 140), in Montana that is not necessarily true.
Under Montana’s unusual definition, bodily injury “includes mental illness or impairment.” Mont. Code Ann. § 45-2-101(5). Montana courts have concluded that one can cause “bodily injury” solely through the infliction of mental anguish unaccompanied by any actual or threatened physical violence. Montana’s PMFA statute also permits a finding of “bodily injury” can include negligent conduct, meaning without the intent to injure another.
To qualify under the U.S.S.G. as a crime of violence as defined under § 4B1.2(a), the crime must include conduct that includes “force capable of causing physical pain or injury to another person.” Johnson, supra. Although violent force “need not cause pain or injury or even be prolonged” (Stokeling v. United States (2019) 139 S. Ct. 544, 553), it “requires, at the very least, more than ‘a mere unwanted touching.’” United States v. Fitzgerald (9th Cir., 2019) 935 F. 3d 814, 817 (quoting Johnson, 559 U.S. at 142).
Montana’s law includes a broader range of conduct, so under the categorical approach, the Ninth Circuit held that Mr. Castro’s prior convictions necessarily cannot be found to constitute a crime of violence.
In other words, a PMFA conviction need not necessarily be a violent offense. A violation requires no more than causing mental anguish through nonviolent conduct.
Moreover, “[t]he phrase ‘crime of violence’ . . . ‘suggests a category of violent, active crimes that cannot be said to include’ negligent offenses.” Borden v. United States (2021) 141 S. Ct. 1817, 1824 (quoting Leocal v. Ashcroft (2004) 543 U.S. 1, 11).
The Ninth Circuit therefore vacated Castro’s sentence and remanded the case back to the district court in Montana for resentencing.
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