                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 12a0344p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                               X
                         Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                -
          v.                                    -
                                                -
                                                    No. 10-5912

                                                ,
                                                 >
                        Defendant-Appellee. N
 JAMES ALVIN CASTLEMAN,

                  Appeal from the United States District Court
               for the Western District of Tennessee at Memphis.
         No. 08-20420-002—Jon Phipps McCalla, Chief District Judge.
                      Decided and Filed: September 19, 2012
            Before: MOORE, CLAY, and MCKEAGUE, Circuit Judges.

                                _________________

                                     COUNSEL
ON BRIEF: Daniel T. French, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellant. Steven L. West, WEST & WEST, ATTORNEYS,
Huntingdon, Tennessee, for Appellee.
       CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.
MOORE, J. (pp. 15–16), delivered a separate concurring opinion. McKEAGUE, J. (pp.
17–23), delivered a separate dissenting opinion.
                                _________________

                                     OPINION
                                _________________

       CLAY, Circuit Judge. The government appeals orders granting Defendant James
Castleman’s motion to dismiss two counts of his indictment, which charged Castleman
with possession of a firearm after conviction for a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9), and denying the government’s motion for
reconsideration. Because the district court correctly interpreted § 922(g)(9), we
AFFIRM the district court’s judgment.



                                          1
No. 10-5912          United States v. Castleman                                   Page 2


                                    BACKGROUND

        In 2001, Castleman pleaded guilty to one count of misdemeanor domestic assault
in violation of Tennessee Code § 39-13-111(b). That statute makes a defendant liable
for a misdemeanor if he “commits an assault as defined in § 39-13-101 against a
domestic abuse victim.” Tenn. Code Ann. § 39-13-111(b). Under § 39-13-101, a person
is guilty of assault if he:

        (1)     Intentionally, knowingly or recklessly causes bodily injury to
                another;
        (2)     Intentionally or knowingly causes another to reasonably fear
                imminent bodily injury; or
        (3)     Intentionally or knowingly causes physical contact with another
                and a reasonable person would regard the contact as extremely
                offensive or provocative.

Tenn. Code Ann. § 39-13-101. Castleman’s 2001 indictment asserted that he “did
intentionally or knowingly cause bodily injury to [the mother of his child]” in violation
of § 39-13-111(b), to which he pleaded guilty on July 16, 2001.

        Seven years later, federal agents discovered that Castleman and his wife were
buying firearms from dealers and selling them on the black market. Under the
Castlemans’ scheme, Castleman’s wife purchased firearms, allegedly lied on federal
firearms paperwork by stating that she was the actual buyer of the firearms, and turned
the firearms over to her husband, who was legally prohibited from purchasing firearms
because of his domestic assault conviction. One of the firearms Castleman’s wife
allegedly purchased was recovered in a homicide investigation in Chicago, Illinois. An
investigation by the Bureau of Alcohol, Tobacco, Firearms & Explosives led agents to
the Castlemans.

        A grand jury indicted Castleman on two counts of possession of a firearm after
being “convicted . . . of a misdemeanor crime of domestic violence,” in violation of 18
U.S.C. § 922(g)(9). Section 922(g)(9) states that:

        It shall be unlawful for any person . . . who has been convicted in any
        court of a misdemeanor crime of domestic violence . . . to ship or
No. 10-5912        United States v. Castleman                                        Page 3


       transport in interstate or foreign commerce, or possess in or affecting
       commerce, any firearm or ammunition; or to receive any firearm or
       ammunition which has been shipped or transported in interstate or
       foreign commerce.

18 U.S.C. § 922(g)(9) (emphasis added). Section 921(a)(33)(A) of Title 18 defines a
“misdemeanor crime of domestic violence” to include any offense that:

       (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. § 921(a)(33)(A) (emphasis added).

       On April 30, 2010, the district court dismissed the § 922(g)(9) counts in
Castleman’s indictment, reasoning that Castleman’s misdemeanor domestic assault
conviction did not qualify as a domestic violence crime requiring the “use or attempted
use of physical force” as defined in 18 U.S.C. § 921(a)(33)(A)(ii). Drawing upon cases
from some of our sister circuits, the district court read § 921(a)(33)(A)(ii) to require
“force in the sense of violent contact” instead of merely “force as a scientific concept
relating to the movement of matter.” (Order 5, R. 108.) In adopting that construction of
§ 922(g)(9), the district court rejected the construction adopted by other circuits and
urged by the government, under which a domestic assault conviction resulting from
“subtle and indirect uses of physical force” would permit liability under § 922(g)(9).
(Gov’t Br. 18.) Reasoning that Tennessee Code § 39-13-111(b)(1) would permit a
conviction for assaultive conduct not involving physical contact, the court concluded that
Castleman’s conviction did not qualify as a predicate offense for purposes of
§ 922(g)(9). The government moved for reconsideration, which the district court denied,
and then timely appealed.
No. 10-5912        United States v. Castleman                                      Page 4


                                     DISCUSSION

I.     Legal Framework

       We review de novo a district court’s decision of whether a prior conviction
qualifies as a predicate offense under 18 U.S.C. § 922(g)(9). See United States v. Gross,
662 F.3d 393, 406 (6th Cir. 2011). In order to determine whether a conviction qualifies
as a § 922(g)(9) predicate offense, we apply the “categorical approach” from Taylor v.
United States, 495 U.S. 575, 600 (1990), in which we “look[] to the statutory definition
of the offense and not the particular facts underlying the conviction.” United States v.
Gibbs, 626 F.3d 344, 352 (6th Cir. 2010); see United States v. Hays, 526 F.3d 674, 679
(10th Cir. 2008). If a defendant can violate the statute in a manner that involves the use
or attempted use of physical force and in a manner that does not, we “may consider the
indictment, guilty plea, or similar documents to determine whether they
necessarily establish the nature of the prior conviction.” Id. (citing Shepard v. United
States, 544 U.S. 13, 26 (2005)).

II.    Construction of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)

       Like other federal appellate courts that have applied § 922(g)(9) to prior state
convictions, we must determine the degree of force necessary for a misdemeanor
domestic battery offense to qualify as a misdemeanor crime of domestic violence. See,
e.g., Hays, 526 F.3d at 677–79; United States v. Nason, 269 F.3d 10, 13–18 (1st Cir.
2001). The government argues that the district court incorrectly minimized the word
“misdemeanor” in deciding whether Castleman’s domestic assault conviction was “a
misdemeanor crime of domestic violence” under § 922(g)(9). The touchstone of the
government’s argument is that § 922(g)(9)’s reference to misdemeanor domestic
violence crimes triggers § 922(g)(9) liability for a defendant convicted of any generic,
common-law assault and battery offense that involves no more than slight physical
touching. By the government’s reckoning, Congress intended § 922(g)(9) to reach the
typical common law assault or battery offense, which generally permits liability for
causing bodily injury “by subtle and indirect uses of physical force.” (Gov’t Br. 18.)
No. 10-5912            United States v. Castleman                                                   Page 5


         The government’s argument is one of statutory interpretation. In construing
§ 922(g)(9), we seek Congress’ intent and refer first to the statute’s plain language.
Chrysler Corp. v. C.I.R., 436 F.3d 644, 654 (6th Cir. 2006); Herman v. Fabri-Centers
of Amer., Inc., 308 F.3d 580, 585 (6th Cir. 2002). We look to the statute’s plain
language with “the assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.” Discount Tobacco City & Lottery, Inc. v. United
States, 674 F.3d 509, 549 (6th Cir. 2012) (quoting Park ‘N Fly, Inc. v. Dollar Park &
Fly, Inc., 469 U.S. 189, 194 (1985)). We presume every word or phrase in the statute
has independent effect. See, e.g., United States v. Perry, 360 F.3d 519, 537 (6th Cir.
2004). If the statute is clear as written, the plain language is both our starting and ending
point, making it unnecessary to delve into the statute’s legislative history. United States
v. Douglas, 634 F.3d 852, 858 (6th Cir. 2011).

         The government’s argument is unpersuasive. It overlooks the nearly identical
language of § 921(a)(33)(A) and 18 U.S.C. §§ 16(a) and 924(e)(2)(B)(i). Section
921(a)(33)(A)(ii) defines a “misdemeanor crime of domestic violence” as a crime that
“has, as an element, the use or attempted use of physical force,” against a victim with
whom the defendant shares a domestic relationship.1 Like § 921(a)(33)(A)(ii), §§ 16(a)
and 924(e)(2)(B)(i) use the phrase “physical force” to define “crime of violence” and
“violent felony,” respectively. Section 16(a) defines a “crime of violence” in part as “an
offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” For its part, § 924(e)(2)(B)(i) defines a
“violent felony” in part as a crime “that has as an element the use, attempted use, or
threatened use of physical force.” By defining a “misdemeanor crime of domestic
violence” to require “the use or attempted use of physical force,” § 921(a)(33)(A)(ii)
drops the reference to “threatened use” from §§ 16(a) and 924(e)(2)(B)(i) but otherwise
tracks the language of §§ 16(a) and 924(e)(2)(B)(i). The provisions’ similarity supports


         1
           Unlike § 924(e)(2)(B), § 921(a)(33)(A)(ii) does not contain a clause listing particular common
law violent felonies (“burglary, arson, or extortion”) or a residual clause (“otherwise involves conduct that
presents a serious potential risk of physical injury to another”). Therefore, cases construing the residual
clause in § 924(e)(2)(B)(ii) do not inform this appeal. See Sykes v. United States, 131 S. Ct. 2267 (2011);
United States v. Vanhook, 640 F.3d 706 (6th Cir. 2011).
No. 10-5912         United States v. Castleman                                     Page 6


the inference that Congress intended them to capture offenses criminalizing identical
degrees of force.

       That inference gains strength in light of the order in which Congress adopted the
statutes. Congress adopted §§ 921(a)(33)(A)(ii) and 922(g)(9) over a decade after it
codified the “use of physical force” provisions in §§ 16(a) and 924(e)(2)(B)(i), and, as
we explained above, Congress used nearly identical language. See Pub. L. No. 104-208,
§ 101(f), 110 Stat. 3009-369, 3009-372 (1996); Pub. L. No. 99-308, § 102, 100 Stat. 451
(1986); Pub. L. No. 98-473, § 1001(a), 98 Stat. 2136 (1984). We consider a statute with
language modeled on that of an earlier statute to function as a legislative interpretation
of the statute in question, and give the earlier statute “great weight in resolving any
ambiguities and doubts” in the later one. Beckert v. Our Lady of Angels Apartments,
Inc., 192 F.3d 601, 606 (6th Cir. 1999) (quoting United States v. Stewart, 311 U.S. 60,
64–65 (1940)).

       The Fourth Circuit recently came to the same conclusion in United States v.
White, 606 F.3d 144, 153 (4th Cir. 2010). In White, the Fourth Circuit held that a
Virginia domestic assault and battery statute is not a “misdemeanor crime of domestic
violence” for purposes of § 921(a)(33)(A)(ii). See id. As a basis for its decision, the
court relied on United States v. Johnson, 130 S. Ct. 1265 (2010). In Johnson, the
Supreme Court held that a Florida battery statute that criminalized intentional striking,
touching, and causing of bodily harm to another person was not a “violent felony” for
purposes of § 924(e)(2)(B)(i). Johnson, 130 S. Ct. at 1269, 1273–74. In so holding, the
Court interpreted the “physical force” requirement in that statute as “violent force . . .
capable of causing physical pain or injury to another person” and “strong physical
force.” Id. at 1271.

       The White court found Johnson’s reasoning in regard to § 924(e)(2)(B)(i)
“compelling if not overwhelming” in its application to § 921(a)(33)(A)(ii). White,
606 F.3d at 153. The court explained that it saw “little, if any, distinction between the
‘physical force’ element in a ‘crime of violence’ in § 16 under Leocal [ v. Ashcroft,
543 U.S. 1, 9 (2004)], a ‘violent felony’ under § 924(e) in Johnson and a ‘misdemeanor
No. 10-5912           United States v. Castleman                                              Page 7


crime of domestic violence’ in § 922(g)(9).” Id. In the court’s opinion, there was “no
principled basis upon which to say a ‘crime of domestic violence’ would include
nonviolent force such as offensive touching in a common law battery.” Id. White is
consistent with cases from other circuits concluding that a common-law, offensive-
touching battery statute does not require sufficient force to be a misdemeanor crime of
domestic violence. See Hays, 526 F.3d at 679 (holding that a Wyoming domestic battery
statute that criminalized unlawful touching “in a rude, insolent, or angry manner”
requires insufficient force to constitute a misdemeanor crime of domestic violence);
United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003) (holding the same
regarding the same Wyoming statute). We agree with these courts that the “physical
force” provision of § 921(a)(33)(A)(ii) is identical to § 924(e)(2)(B)(i) in the degree of
force it requires in a qualifying predicate offense.2 And as a result, we conclude that the
degree of force Johnson requires for a conviction under § 924(e)(2)(B)(i) is required of
a misdemeanor crime of domestic violence.

        The dissent finds fault in our decision to construe §§ 921(a)(33)(A)(ii) and
922(g)(9) in light of §§ 16(a) and 924(e)(2)(B)(i), and Johnson’s gloss on the latter
statutes, because Johnson postdated the adoption of all the statutes in question. But this
line of reason is hardly novel. For example, the Supreme Court used the identical line
of argument in Smith v. City of Jackson, 544 U.S. 228, 234–38 (2005) (plurality
opinion), in which the Court held that disparate-impact claims are available under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, based in part on
its previous interpretation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2.
Congress adopted Title VII in 1964, and it adopted the ADEA in 1967. See Smith,
544 U.S. at 233. Four years after Congress adopted the ADEA, the Supreme Court held
in Griggs v. Duke Power Company, 401 U.S. 424, 433–34 (1971), that Title VII
authorizes claims of employment discrimination based on race even when a plaintiff
cannot show that the defendant employer acted with a discriminatory intent. A majority


        2
          We also note that other federal courts have come to the opposite conclusion and held that an
offense requiring only slight touching can qualify as a misdemeanor crime of domestic violence. See
United States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006); Nason, 269 F.3d at 20.
No. 10-5912         United States v. Castleman                                       Page 8


of the Court explained that Griggs was “a precedent of compelling importance” when
the Court considered the same issue with respect to the ADEA in 2005. Smith, 544 U.S.
at 234 (plurality opinion); see id. at 243 (Scalia, J., concurring opinion) (expressing
agreement with “all of the Court’s reasoning” but finding the issue better left for agency
interpretation). The Court’s reasoning was consistent with its reading of Title VII and
the ADEA in other cases. See Smith, 544 U.S. at 234 n.4 (citing Oscar Mayer & Co. v.
Evans, 441 U.S. 750, 756 (1979), Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416
(1985), and Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)).

        As Smith makes clear, the Supreme Court (or other federal courts) need not have
answered a particular question about a statute’s meaning for the court to conclude that
a construction of an earlier-adopted statute is “a precedent of compelling importance”
to the interpretation of an identical, later-adopted statute. Id. at 234. Therefore, our
argument is obviously not that Congress knew about Johnson when it adopted
§ 922(g)(9). Rather, the governing principle holds that Congress’ decision to use
identical language in writing the two statutes demonstrates its belief that the statutes
share a similar meaning and, therefore, should be interpreted similarly. As we explained,
that principle is not foreign to this Court. See, e.g., United States v. McAuliffe, 490 F.3d
526, 532 n.3 (6th Cir. 2007); Beckert, 192 F.3d at 606.

        The government resists this conclusion by emphasizing § 922(g)(9)’s reference
to “misdemeanor” offenses, but the government asks us to put more weight on the term
“misdemeanor” than Congress meant the term to bear. Had Congress intended the word
“misdemeanor” to have the effect suggested by the government, then Congress would
have had no need to modify “misdemeanor” with the phrase “crime of violence.”
Congress could simply have prohibited any person convicted of a “misdemeanor
domestic assault or battery offense” from possessing a firearm. It chose not to do so.

        Additionally, as the Supreme Court has explained in a different doctrinal context,
the term “misdemeanor” “meant very different things in different common-law contexts”
and was not defined in reference to the degree of force a misdemeanor offense required.
Atwater v. Lago Vista, 532 U.S. 318, 328 n.2 (2001).              “Misdemeanor” has an
No. 10-5912            United States v. Castleman                                                  Page 9


independent meaning in the statute, but it has a different meaning than the government
suggests. See Perry, 360 F.3d at 537. “Misdemeanor crime of domestic violence” is
most naturally interpreted to mean any crime requiring strong and violent physical force,
which happens to be a misdemeanor. Under this formulation, a misdemeanor crime of
domestic violence is part of a subset of misdemeanor offenses which does not include
all assault and battery offenses, but rather only those assault and battery offenses in
which violent physical force is involved. The most natural inference from this reading
is that Congress aimed to extend § 922(g)(9) to reach individuals who committed violent
domestic conduct but who were charged only with a misdemeanor, perhaps as a result
of a plea agreement.3

         The dissent reads our opinion as having under-emphasized “the distinction
between misdemeanors and felonies in the ACCA” and therefore as unnecessarily
applying Johnson’s degree-of-force requirement to § 922(g)(9). The dissent seems to
suggest that our application of Johnson to § 922(g)(9) flows from the belief that the
distinction between misdemeanor and felony crimes is “insignificant.” But the chain of
reasoning flows in the opposite direction: any salient distinction between misdemeanors
and felonies was, in our view, sufficiently insignificant to Congress that it wrote the
statutes identically; thus, it is the similarity of the statutes that prohibits a domestic
violence offense’s status as a misdemeanor from controlling the question of whether the
offense qualifies as a misdemeanor crime of domestic violence.

         3
            In Johnson, the Supreme Court concluded that a battery offense was not a “violent felony,” in
part because the Court found it “unlikely that Congress would select a term of art defining ‘violent felony’
a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.” 130 S. Ct.
at 1271–72. According to government, this statement implies that the Court understands § 922(g)(9), with
its limitation to “misdemeanor” offenses, to encompass all misdemeanor offenses attaching criminal
liability to an offensive touching. The government reads the Court’s statement to establish a broader
proposition than it was intended. The Court’s reference to the word “misdemeanor” was not aimed to
demonstrate that a misdemeanor offense requiring less than violent force would trigger § 922(g)(9).
Rather, the reference was aimed strictly to demonstrate why Congress would not use the word “felony”
if it intended to cast liability to include an offense traditionally categorized as a misdemeanor. We do not
read the Court’s statement as an intended construction of § 922(g)(9).
           Insofar as the Court’s statement does bear on § 922(g)(9), it supports a proposition that we have
applied here. At bottom, Johnson’s discussion of the common-law heritage of battery offenses reflected
the established practice of presuming that Congress intended to incorporate the common-law meaning of
a term absent evidence to the contrary. See Info-Hold v. Sound Merchandising, Inc., 538 F.3d 448, 455–56
(6th Cir. 2008). Nothing about our decision transgresses that practice. The government asks us to do more
than give due respect to the common-law history of “misdemeanor”; it asks us to read “misdemeanor” to
swallow the remainder of § 922(g) and ignore the statute’s remaining terms. We decline, because doing
so would read the remaining language out of the statute.
No. 10-5912        United States v. Castleman                                    Page 10


       Nor did Johnson treat the misdemeanor-felony distinction in the manner the
dissents says it did. Though the Court in Johnson declined to use terms associated with
misdemeanor offenses to define “violent felony,” it does not follow that the passage in
question indicates a practice by the Court of incorporating the misdemeanor-felony
distinction directly into the ACCA and § 922(g)(9). Instead, the relevant portion of
Johnson suggests that the misdemeanor-felony distinction is not a viable framework for
determining the level of violence an offense must require to qualify as a violent felony.
See Johnson, 130 S. Ct. at 1271 (“[T]he dividing line between misdemeanors and
felonies has shifted over time”). The ACCA and § 922(g)(9), by contrast, is concerned
with punishing defendants previously convicted of offenses characterized by a high
degree of physical violence.      And, as the Fourth Circuit explained in White,
§ 922(g)(9)’s reference to misdemeanor offenses “describes the punishment status of the
predicate offense and has no bearing on the statutory mandate of a crime of violence.”
White, 606 F.3d at 153.

III.   Categorical Analysis

       Having determined the degree of force required in a misdemeanor crime of
domestic violence, we turn to the question of whether Tennessee Code § 39-13-111(b)
categorically qualifies as a misdemeanor crime of domestic violence. See Gibbs,
626 F.3d at 352. Our decision in United States v. McMurray, 653 F.3d 367 (6th Cir.
2011), requires us to conclude that it does not.

       In McMurray, we held that a Tennessee aggravated assault conviction did not
qualify as a predicate offense for purposes of 18 U.S.C. § 924(e)(2)(B)(i), because the
statute criminalizes reckless conduct. 653 F.3d at 376. The McMurray defendant had
been convicted of violating Tennessee’s aggravated assault statute, which incorporates
§ 39-13-101. Id. at 372. We limited our inquiry to whether a conviction under “the
serious-bodily-injury prong” of the aggravated assault statute satisfied the “use of
physical force” provision in § 924(e)(2)(B)(i). Id. at 373. We relied on Johnson, 130 S.
Ct. at 1270, Leocal, 543 U.S. at 9, and United States v. Portela, 469 F.3d 496 (6th Cir.
2006), in support of the proposition that a state offense making a defendant liable for
No. 10-5912         United States v. Castleman                                      Page 11


“reckless” conduct could not qualify as a predicate offense. Id. at 374. Since the
Tennessee aggravated assault statute prohibits “recklessly . . . caus[ing] bodily injury to
another,” we reasoned that the defendant’s aggravated assault conviction did not qualify
as a violent felony under the “use of physical force” clause of § 924(e)(2)(B)(i). Id. at
372, 376; see also United States v. Anderson, — F.3d —, 2012 WL — (6th Cir. Sept.
—, 2012) (concluding that an aggravated assault conviction qualified as a violent felony
under § 924(e)(2)(B) where the statute required the defendant to knowingly cause
serious physical harm to a victim).

        Castleman pleaded guilty to an offense less severe than did the defendant in
McMurray. Castleman pleaded guilty to misdemeanor domestic assault, for which a
defendant is liable if he “commits an assault as defined in § 39-13-101 against a
domestic abuse victim.” Tenn. Code Ann.. § 39-13-111(b). McMurray held that the
violation of a statute that builds on § 39-13-101 and makes it a crime to cause “serious
bodily injury” does not require the use of violent force. It stands to reason, then, that the
violation of a statute that also builds on § 39-13-101 but makes it a crime only to cause
“bodily injury,” serious or not, also does not require the use of violent force. Therefore,
a defendant could violate Tennessee Code § 39-13-111(b) both in a manner that
constitutes a “misdemeanor crime of domestic violence” and in a manner that does not.

        This reasoning is consistent with United States v. Anderson, — F.3d —, 2012
WL — (6th Cir. Sept. —, 2012), in which we recently decided that a defendant’s
aggravated assault conviction qualified as a violent felony under § 924(e)(2)(B) because
the underlying Ohio statute required the defendant to knowingly cause “serious physical
harm to another.” Id. at ¶ 31–32 (quoting Ohio Rev. Code Ann. § 2903.12(A)).
Undertaking a categorical analysis of the Ohio statute, we concluded that “only by
knowingly using force capable of causing physical pain or injury, i.e., violent physical
force,” can a defendant cause serious physical injury to a victim. Id. at ¶ 32. And
reasoning that “[t]he degree of injury has a ‘logical relation to the use of physical
force,’” our ruling was grounded in the fact that proof of a “serious” physical injury was
No. 10-5912         United States v. Castleman                                     Page 12


required to obtain a conviction and, in turn, to qualify the conviction as a violent felony.
Id. at ¶ 34 (quoting De Leon Castellanos v. Holder, 652 F.3d 762, 766 (7th Cir. 2011)).

        In this case, by contrast, the statute does not require proof of a serious physical
injury. Rather, it requires proof of just some physical injury, regardless of how slight.
Castleman could have caused a slight, nonserious physical injury with conduct that
cannot be described as violent. Castleman may have been convicted for causing a minor
injury such as a paper cut or a stubbed toe, in which he knowingly acted in a manner that
caused a domestic relations bodily harm but did so using less than strong physical force.
Therefore, Castleman’s conviction under Tennessee Code § 39–11–101(b), in which he
caused an unspecified bodily injury, is not a misdemeanor crime of domestic violence.

IV.     Modified Categorical Analysis

        Having concluded that Tennessee Code § 39-13-111(b) is not categorically a
misdemeanor crime of domestic violence, we now consider whether Castleman’s
conviction qualifies as such given the proof of his conduct available to us. Gibbs,
626 F.3d at 352. Among the Shepard documents we are able to consider in making this
inquiry is the indictment to which Castleman pleaded guilty. Id. (citing Shepard,
544 U.S. at 26). Castleman’s indictment states tersely that he “did intentionally or
knowingly cause bodily injury” to a woman with whom he had a domestic relationship
in violation of § 39-13-111(b). The indictment does not specify the type of injury
Castleman caused or its severity. The logic applicable to the categorical analysis of
Castleman’s conviction applies here as well, because Castleman’s indictment adopts the
language of the statute and does not specify the type or severity of injury he caused.

        The government argues that it was impossible for Castleman to cause his victim
any bodily injury without using the degree of force required under § 921(a)(33)(A)(ii).
That argument is unpersuasive inasmuch as an individual can cause an unspecified
bodily injury with nonviolent physical force. Tennessee law supports this proposition.
Tennessee law defines “bodily injury” to include “a cut, abrasion, bruise, burn or
disfigurement, physical pain or temporary illness or impairment of the function of a
bodily member, organ or mental faculty.” Tenn. Code Ann. § 39–11–106(a)(2). A
No. 10-5912        United States v. Castleman                                    Page 13


defendant himself need not necessarily use “violent” and “strong physical force” to cause
a cut, an abrasion, or a bruise. Johnson, 130 S. Ct. at 1270. Rather, a defendant can
cause one of these injuries with nonviolent force that either causes a slight injury or
exposes the victim to bodily injury. As we explained, Castleman may have been
convicted for causing a minor, nonserious physical injury, in which he caused the
individual with whom he had a domestic relationship bodily harm, but did so using less
than strong physical force. Therefore, Castleman’s indictment does not provide a basis
from which we can conclude that his domestic assault conviction entailed violent
physical force.

       Our decision is consistent with United States v. Alexander, 543 F.3d 819 (6th Cir.
2008), which the government incorrectly argues is in conflict with our conclusion
regarding Castleman’s domestic assault conviction. In Alexander, we held that a
defendant’s Michigan conviction for assaulting a police officer was a crime of violence
for purposes of USSG § 4B1.2(a), in part because the statute required proof that the
defendant caused the officer bodily injury. Id. at 823; see McMurray, 653 F.3d at 371
n.1 (explaining that USSG § 4B1.2(a) and § 924(e)(2)(B) are applied in conjunction with
one another).

       The government overlooks three important distinctions between Alexander and
this case. First, we decided Alexander before the Supreme Court decided Johnson, so
we must look to Johnson in deciding whether an offense requires the use or attempted
use of physical force. Second, the Michigan statute at issue in Alexander required the
government to prove that the defendant caused an officer a bodily injury “requiring
medical attention or medical care.” Id. (quoting M.C.L.A. § 750.81d(2)). Indeed, our
conclusion that the defendant’s crime was a violent felony was largely grounded on the
fact that the conviction “require[d] causing an actual physical injury sufficiently severe
to require medical care.” Id. By contrast, Castleman may have pleaded guilty for doing
no more than swatting or scratching the victim, see State v. Wachtel, No.
M2003-00505-CCA-R3-CD, 2004 WL 784865, at *12 (Tenn. Ct. Crim. App. Apr. 13,
2004), and causing no more than a cut, abrasion, or bruise, none of which would have
No. 10-5912        United States v. Castleman                                   Page 14


required medical care. Tenn. Code Ann. § 39–11–106(a)(2). Third, in Alexander we
considered the defendant’s conviction on plain error review and could have only
reversed the district court’s judgment upon a finding of an obvious error that adversely
affected both the defendant’s substantial rights and the reputation and integrity of the
judiciary. See id. at 822 (quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th
Cir. 1998)). Here, by contrast, we undertake de novo review and agree with the district
court’s judgment. Therefore, even after Johnson, our decision is consistent with
Alexander.

                                   CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.
No. 10-5912        United States v. Castleman                                     Page 15


                                ____________________

                                  CONCURRENCE
                                ____________________

       KAREN NELSON MOORE, Circuit Judge, concurring. Although I agree with
the majority’s construction of 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9), and the
decision to affirm the district court’s judgment, I write separately to address the
application of the modified-categorical analysis. I agree that the force requirement for
a misdemeanor crime of domestic violence is identical to that specified under the crime-
of-violence statute and the ACCA. In light of that conclusion, I believe this case
presents a straightforward application of the Supreme Court’s opinion in Johnson v.
United States, 130 S. Ct. 1265 (2010), and of our subsequent decision in United States
v. McMurray, 653 F.3d 367 (6th Cir. 2011). In my view, this application also eschews
drawing unnecessary comparisons between the seriousness of certain domestic-violence
offenses and injuries.

       At bottom, McMurray involved the same assault statute underlying the domestic-
violence offense at issue here, which prohibits “[i]ntentionally, knowingly or recklessly
caus[ing] bodily injury to another.” Tenn. Code Ann. § 39-13-101; see also McMurray,
653 F.3d at 372. Because that statute criminalizes reckless conduct, it is not subject to
the categorical approach. McMurray, 653 F.3d at 375. Thus, the question is whether
Castleman, whose guilty plea was confined to “intentionally or knowingly caus[ing]
bodily injury” to the mother of his child, R. 109-1 (State Ct. Indictment), meets the “use
or attempted use of physical force” requirement for a misdemeanor crime of domestic
violence under the modified-categorical approach. See 18 U.S.C. 921(a)(33)(A).

       Although some Sixth Circuit cases, such as United States v. Alexander, 543 F.3d
819, 823 (6th Cir. 2008), suggest that a bodily-injury requirement alone could be enough
to qualify a statute as a crime of violence, this results-oriented approach does not square
with the Supreme Court’s analytical approach to the physical-force requirement for a
violent felony. In Johnson, the Court rejected the notion that “any intentional physical
contact, no matter how slight” could qualify as a violent felony. 130 S. Ct. at 1270
No. 10-5912         United States v. Castleman                                     Page 16


(internal quotation marks omitted). Instead, the Supreme Court defined ‘physical force’
as “violent force—that is, force capable of causing physical pain or injury to another
person.” Id. at 1271 (second emphasis added). It further noted that the term “‘violent’
. . . connotes a substantial degree of force.” Id. Following this analysis, it is not enough
to look only at the result of the defendant’s conduct; instead, the focus must be on the
nature of the force proscribed by the statute and whether the conduct itself necessarily
involves violent force.

        Applying this standard to the Tennessee assault statute, we have questioned
whether an element specifying that a defendant “‘cause[] serious bodily injury’
necessarily requires the ‘use of physical force’” for purposes of the ACCA. McMurray,
653 F.3d at 374 n.6 (internal citations omitted). Indeed, as we recognized in McMurray,
the Tennessee assault statute “does not define ‘serious bodily injury’ to require any
particular degree of contact.” Id. Thus, “[a]lthough we might expect that someone who
causes serious bodily injury to another did so with a strong physical force, the statute
does not require it.” Id. (alteration in original); cf. United States v. Villegas-Hernandez,
486 F.3d 874, 879 (5th Cir. 2006) (evaluating a comparable bodily-injury requirement,
which encompassed causing pain, illness, or physical impairment, and concluding that
such injuries “could result from any of a number of acts [performed] without use of
‘destructive or violent force’”), cert. denied, 549 U.S. 1245 (2007). By extension, the
requisite force under Tennessee’s domestic-violence statute is similarly unspecified, and
thus, even the modified-categorical approach does not bring Castleman’s conviction
within the confines of a misdemeanor crime of domestic violence.
No. 10-5912        United States v. Castleman                                  Page 17


                                   _____________

                                     DISSENT
                                   _____________

        McKEAGUE, Circuit Judge, dissenting. The majority relies upon United States
v. McMurray, 653 F.3d 367 (6th Cir. 2011) to determine that Tennessee’s assault statute
does not have use or attempted use of physical force as an element. I dissented in
McMurray because it was contrary to binding precedent. Likewise, I disagree with the
outcome today for the reasons outlined in my McMurray dissent and established further
below. I am bound to follow McMurray insofar as it is controlling. However, unlike the
majority, I do not believe that McMurry controls the outcome in this case and I dissent
insofar as the majority attempts to extend McMurray’s reach.

                                          I.

        The majority finds the distinction between misdemeanors and felonies in the
ACCA insignificant. In doing so, the majority ignores the fact that the Supreme Court’s
violent felony exception to the normal common law interpretation of “physical force”
in Johnson v. United States, 130 S. Ct. 1265 (2010), was based on precisely that
distinction.

        In Johnson, the Supreme Court determined that the physical force element of the
“violent felony” definition in the ACCA was not satisfied by mere offensive touching.
Instead the Court interpreted the statute to require violent physical force. Here, the
majority takes Johnson’s “violent felony” standard and applies it to the ACCA’s
“misdemeanor crime of domestic violence” found at 18 U.S.C. § 921(a)(33)(A). In so
doing, the majority misinterprets Johnson.

        The Johnson Court held that “although a common-law term of art should be
given its established common-law meaning,” Johnson, 130 S. Ct. at 1270, the common
law definition of “physical force” does not apply to violent felonies. This is because
“context determines meaning and we do not force term-of-art definitions into contexts
where they plainly do not fit and produce nonsense. Here we are interpreting the phrase
No. 10-5912        United States v. Castleman                                     Page 18


‘physical force’ as used in defining not the crime of battery, but rather the statutory
category of ‘violent felon[ies]’” Id. (internal citations omitted). However, the Court
specifically stated that its holding did not apply to § 921(a)(33)(A): “We have
interpreted the phrase ‘physical force’ only in the context of a statutory definition of
“violent felony.” We do not decide that the phrase has the same meaning in the context
of defining a misdemeanor crime of domestic violence.” Id. at 1273 (emphasis in
original).

        Just as using the mere touching misdemeanor standard of physical force to define
violent felonies is misplaced and produces nonsense, so too does using the felony
exception to define a misdemeanor. This creates an exception that swallows the rule.
Several of our sister circuits have already recognized this. See United States v. Griffith,
455 F.3d 1339, 1345 (11th Cir. 2006) (“we do not feel compelled to reach a result at war
with common sense”); United States v. Booker, 644 F.3d 12, 20-21 (1st Cir. 2011) cert.
denied, 132 S. Ct. 1538, 182 L. Ed. 2d 175 (U.S. 2012) (“There are sound reasons to
decline to interpret the two statutes in tandem. . . . the statutes address significantly
different threats. Whereas the ACCA seeks to protect society at large from a diffuse risk
of injury or fatality at the hands of armed, recidivist felons, § 922(g)(9) addresses an
acute risk to an identifiable class of victims—those in a relationship with a perpetrator
of domestic violence.”). Although, as the majority points out, there are circuits which
have adopted the Johnson felony standard for the misdemeanor provision, they err for
the same reasons the majority errs today.

        The majority supports its application of Johnson by noting that the ACCA’s
misdemeanor language at § 921(a)(33)(A) mirrors its violent felony language. However,
the Johnson exception was not clarified until after both statutes were adopted. Despite
its extended explanation, the majority thus pretends that Congress acted with full
knowledge of the Johnson felony exception instead of with the common law
understanding when writing § 921(a)(33)(A). Given the chronology of events, this
cannot be the case.
No. 10-5912            United States v. Castleman                                               Page 19


       In sum, Johnson rejected the argument that the misdemeanor standard should
control the felony definition. By extension, the felony standard should not control the
misdemeanor. Simply applying the narrow felony exception to the broader class of
misdemeanor domestic assaults ignores the distinction central to Johnson.

                                                  II.

       In determining that Tennessee’s assault statute categorically lacks an element of
“the use or attempted use of physical force,” the majority relies exclusively on
McMurray. As I explained in my dissent there, McMurray is out of step with binding
precedent in this circuit. And “when a later decision of this court conflicts with one of
our prior published decisions, we are still bound by the holding of the earlier case.”
Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). I concur with the
majority’s categorical analysis out of respect for the panel rule. United States v. Moody,
206 F.3d 609, 615 (6th Cir. 2000).

       Nevertheless, under a modified categorical analysis Castleman’s prior domestic
assault conviction satisfies the heightened Johnson standard and does not run afoul of
McMurray. Castleman was convicted under Tenn. Code Ann. § 39-13-101 after he pled
guilty to “intentionally or knowingly” causing bodily injury to the mother of his child.
This Court’s holding in McMurray “rest[ed] on the Tennessee statute’s inclusion of
reckless conduct,” McMurray, 653 F.3d at 375 n.6 (emphasis added), and did not address
intentionally or knowingly inflicting bodily injury. Today’s decision extends McMurray
from reckless infliction of bodily injury to intentional infliction of bodily injury. This
outcome is contrary to our precedent, which holds that violent physical force is a
necessary element to intentionally or knowingly inflicting bodily injury. See United
States v. Alexander, 543 F.3d 819, 823 (6th Cir. 2008).1
       1
           Alexander involved Michigan’s statute regarding assaulting an officer:
       Looking exclusively at the statutory definition of the offense, the plain language of this
       provision indicates that “causing bodily injury” is an element of the crime as defined by
       M.C.L.A. § 750.81 d(2). Violating this statute would therefore entail committing a crime
       of violence because the element of “causing bodily injury” involves both the “use of
       physical force against the person of another” (U.S.S.G. § 4B1.2(a)(1)) and “conduct that
       presents a serious potential risk of physical injury to another” (U.S.S.G. § 4B1.2(a)(2)).
       Indeed, a conviction under M.C.L.A. § 750.81d(2) requires more than simply a “risk”
No. 10-5912           United States v. Castleman                                                Page 20


         The majority distinguishes Alexander because the Michigan statute necessitated
injury “requiring medical attention or medical care.” However, that is not the minimum
standard in Johnson, which required only “force capable of causing physical pain or
injury to another person.” Johnson, 130 S. Ct. at 1271. Tennessee defines bodily injury
as “include[ing] a cut, abrasion, bruise, burn or disfigurement, and physical pain or
temporary illness or impairment of the function of a bodily member, organ, or mental
faculty.” Tenn. Code Ann. § 39-11-106. This by definition meets the Johnson standard
of “physical pain or injury”.

         This Court’s decision in United States v. Gloss, 661 F.3d 317, 318-19 (6th Cir.
2011) cert. denied, 132 S. Ct. 1777 (U.S. 2012), decided after both McMurray and
Johnson, is also instructive. There this Circuit held that the ACCA standard for violent
felony was satisfied by Tennessee’s facilitation of armed robbery statute because:

         Any robbery . . . that causes serious bodily injury, falls under the first
         clause of the definition of violent felony, as it necessarily involves “the
         use, attempted use, or threatened use of physical force against the person
         of another.” 18 U.S.C. § 924(e)(2)(B)(i). It makes no difference that the
         defendant was not the person who committed the aggravated robbery.
         See, e.g., United States v. Brown, 550 F.3d 724, 729 (8th Cir.2008). All
         that matters is that someone did so, and that the defendant knowingly
         provided substantial assistance to that person.

Id. at 319 (emphasis in original). The rule in this Circuit after today’s decision is that
while the mere facilitation of another’s crime resulting in serious bodily injury is
necessarily a crime involving physical force, directly causing such bodily injury is not.
Under this rule assaulting one’s girlfriend does not trigger the ACCA—but providing
assistance to a third party who robs one’s girlfriend, during which she gets assaulted,
does. This defies common sense.




        of physical injury; a conviction requires causing an actual physical injury sufficiently
        severe to require medical care. If Alexander was in fact convicted under that statute, he
        would have necessarily committed a crime of violence.


Alexander, 543 F.3d at 823 (emphasis in original).
No. 10-5912            United States v. Castleman                                                 Page 21


         Much of the confusion results from the rewording of common law elements in
the Model Penal Code.2 As the First Circuit observed, the apparent disconnect between
the ACCA’s focus on the act and the state statute’s (like Tennessee’s) focus on the result
can be rectified once their differing perspectives are taken into account. See United
States v. Nason, 269 F.3d 10, 19-20 (1st Cir. 2001). Recognizing that Congress’s use of
common law and the state’s adoption of the Model Penal Code both address the same
crime makes the ACCA easier to interpret.3

         The solution is to hold that knowingly or intentionally causing bodily injury
necessitates use of physical force. That would solve the apparent contradiction between
Alexander and Gloss, which addressed intentional or knowing infliction of bodily injury,
and McMurray, which was limited to reckless infliction of bodily injury. Other circuits
have already adopted this rule. The First Circuit, for example, in evaluating Maine’s
assault statute (which is almost identical to Tennessee’s) has found physical force a
necessary element: “Common sense supplies the missing piece of the puzzle: to cause
physical injury, force necessarily must be physical in nature. Accordingly, physical force
is a formal element of assault under the bodily injury branch of the Maine statute.”
United States v. Nason, 269 F.3d 10, 20 (1st Cir. 2001) (emphasis in original). This
conclusion survived Johnson. United States v. Booker, 644 F.3d 12, 21 (1st Cir. 2011)
cert. denied, 132 S. Ct. 1538, 182 L. Ed. 2d 175 (U.S. 2012). Likewise, the Eighth

         2
           Tennessee’s assault statute follows the Model Penal Code, which defines simple assault in part
as “attempt[ing] to cause or purposely, knowingly or recklessly causes[ing] bodily injury to another.”
Model Penal Code § 211.1. Prior to codification Tennessee’s common law definition of assault, similar
to the ACCA, focused on the act rather than the result. “An assault is an attempt or offer to do a personal
violence to another. It is an inchoate violence, with the present means of carrying the intent into effect.”
Richels v. State, 33 Tenn. 606, 608 (1854).
         3
           “Violent felonies” under the ACCA and “crimes of violence” under the sentencing guidelines
are analyzed the same way. United States v. Gibbs, 626 F.3d 344, 352 n. 6 (6th Cir. 2010); also recognized
in McMurray, 653 F.3d at 371 n.1. With regard to the sentencing guidelines: “the offense for which the
defendant was convicted must fall within the generic definition of that crime, which is found by surveying
how the crime is described across jurisdictions, as well as consulting sources such as the Model Penal
Code. . . . We have recognized the Model Penal Code definition of aggravated assault as the generic
definition for the purpose of deciding whether a crime with that label is a crime of violence, at least in
states which have merged the crimes of assault and battery.” United States v. Rede-Mendez, 680 F.3d 552,
556-57 (6th Cir. 2012) (internal citations omitted). That the Model Penal Code’s definition of “aggravated
assault” (reflected in Tennessee’s statute) is a “violent crime” for purposes of the sentencing guidelines
but not—as a result of McMurray—a “violent felony” for the ACCA further shows that McMurray is out
of step with this Circuit’s larger precedent.
No. 10-5912        United States v. Castleman                                     Page 22


Circuit found that bodily injury is predicated on physical acts. “Smith was charged . . .
for committing an act intended to cause pain, injury, or offensive or insulting physical
contact . . . . As such, Smith was charged, and pleaded guilty to, an offense with an
element of physical force within the meaning of 18 U.S.C.A. § 921(a)(33)(A)(ii).”
United States v. Smith, 171 F.3d 617, 621 (8th Cir. 1999).

       Today’s decision separates the Model Penal Code’s element of intentionally or
knowingly causing bodily injury from the ACCA’s element of physical force. This
extension of McMurray has the effect of making the “misdemeanor crime of domestic
violence” provision of the ACCA a dead letter in Tennessee, as well as any other state
using the Model Penal Code’s definition of assault to punish domestic abusers.

       The Supreme Court has already rejected an interpretation of § 921(a)(33)(A) that
would make the ACCA a “‘dead letter’ in some two-thirds of the States from the very
beginning.” United States v. Hayes, 555 U.S. 415, 427 (2009). In a different context, the
Court noted:

       Practical considerations strongly support our reading of
       § 921(a)(33)(A)’s language. Existing felon-in-possession laws, Congress
       recognized, were not keeping firearms out of the hands of domestic
       abusers, because “many people who engage in serious spousal or child
       abuse ultimately are not charged with or convicted of felonies.” 142
       Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg). By extending
       the federal firearm prohibition to persons convicted of “misdemeanor
       crime[s] of domestic violence,” proponents of § 922(g)(9) sought to
       “close this dangerous loophole.”

Id. at 22986.

       Construing § 922(g)(9) to exclude the domestic abuser convicted under
       a generic use-of-force statute (one that does not designate a domestic
       relationship as an element of the offense) would frustrate Congress’
       manifest purpose.

Id. at 426-27. In Hayes, the Court started from the premise that “domestic abusers were
(and are) routinely prosecuted under generally applicable assault or battery laws,” Id. at
427, and sought to interpret § 921(a)(33)(A) in keeping with that custom. The majority
No. 10-5912        United States v. Castleman                                   Page 23


fails to take into account this “manifest purpose” of Congress and reopens a dangerous
loophole for domestic offenders. The result—that those convicted of intentional
domestic assault in Tennessee may still possess firearms—frustrates Congress’s manifest
purpose in adopting § 921(a)(33)(A).

       For these reasons I disagree with the reasoning of the majority today and dissent
from the majority’s attempt to extend McMurray’s reach.
