             Reversed by Supreme Court, February 24, 2009




                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 06-4087
RANDY EDWARD HAYES,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Northern District of West Virginia, at Clarksburg.
              Irene M. Keeley, Chief District Judge.
                       (1:05-cr-3-IMK-ALL)

                      Argued: October 27, 2006

                      Decided: April 16, 2007

    Before WILLIAMS, MICHAEL, and KING, Circuit Judges.



Reversed and remanded by published opinion. Judge King wrote the
majority opinion, in which Judge Michael joined. Judge Williams
wrote a dissenting opinion.


                            COUNSEL

ARGUED: Troy Nino Giatras, Charleston, West Virginia, for Appel-
lant. Shawn Angus Morgan, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
West Virginia, for Appellee. ON BRIEF: Rita R. Valdrini, Acting
United States Attorney, Clarksburg, West Virginia, for Appellee.
2                       UNITED STATES v. HAYES
                              OPINION

KING, Circuit Judge:

   Randy Edward Hayes appeals from the district court’s denial of his
motion to dismiss an indictment charging him with three counts of
possessing firearms after having been convicted of the predicate
offense of a "misdemeanor crime of domestic violence" (an
"MCDV"), in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). See
United States v. Hayes, No. 1:05cr03 (N.D. W. Va. June 24, 2005)
(the "Order").1 Hayes was convicted in the Northern District of West
Virginia after he entered a conditional guilty plea to one of the indict-
ment’s three counts. He maintains on appeal that his predicate offense
was not an MCDV as that term is defined in 18 U.S.C.
§ 921(a)(33)(A) (the "MCDV Definition"), and that the charges in the
indictment thus fail as a matter of law. As explained below, we agree
with Hayes and reverse.

                                   I.

  In 1994, Hayes pleaded guilty to a misdemeanor battery offense
under West Virginia law, in the magistrate court of Marion County,
West Virginia (the "1994 State Offense"). The victim of the 1994
State Offense was Hayes’s then wife, Mary Ann (now Mary Carnes),
with whom he lived and had a child. As a result of the 1994 State
Offense, Hayes was sentenced to a year of probation.

   Ten years later, on July 25, 2004, the authorities in Marion County
were summoned to Hayes’s home in response to a domestic violence
911 call. When police officers arrived at Hayes’s home, he consented
to a search thereof, and a Winchester rifle was discovered. Hayes was
arrested and, on January 4, 2005, indicted in federal court on three
charges of possessing firearms after having been convicted of an
MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).2 Hayes
   1
     The Order is found at J.A. 108-15. (Citations herein to "J.A. ___"
refer to the contents of the Joint Appendix filed by the parties in this
appeal.)
   2
     The Winchester rifle found in Hayes’s home was the subject of Count
Three of the indictment. Hayes had sold a Marlin rifle in January or Feb-
ruary 2004, and it was the subject of Count One of the indictment. Three
additional rifles were the underpinnings of Count Two of the indictment.
                        UNITED STATES v. HAYES                          3
filed a motion challenging the validity of the indictment and, on May
4, 2005, the grand jury returned a superseding indictment against him.
The superseding indictment included the same three charges con-
tained in the initial indictment, plus a "Notice of Additional Factors,"
alleging that Hayes had been convicted in West Virginia state court
in 1994 on a misdemeanor battery offense that satisfied the definition
of an MCDV.3

   Hayes sought dismissal of the superseding indictment, maintaining
that it was legally flawed because his 1994 State Offense was not an
MCDV under federal law. On June 11, 2005, the district court, by a
bench ruling, denied Hayes’s motion to dismiss. On July 5, 2005,
Hayes entered a conditional guilty plea to Count One of the supersed-
ing indictment,4 pursuant to Rule 11(a)(2) of the Federal Rules of
Criminal Procedure, thus reserving his right to appeal the denial of his
motion to dismiss.5 Hayes thereafter filed a timely notice of appeal,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
   3
     The Notice of Additional Factors in the superseding indictment
alleged, in relevant part:
    Defendant Randy Edward Hayes’ February 24, 1994 Battery
    conviction, as referenced in . . . this Superseding Indictment,
    constituted [an MCDV] because: (a) Battery is a misdemeanor
    under State law in West Virginia; (b) Battery has, as an element,
    the use and attempted use of physical force; (c) Defendant Randy
    Edward Hayes committed the offense of Battery against the vic-
    tim: (i) who was his current spouse; and (ii) who was a person
    with whom he shared a child in common; and (iii) who was
    cohabiting with and had cohabited with him as a spouse.
J.A. 19.
  4
    Count One of the superseding indictment, on which Hayes pleaded
guilty, alleged in pertinent part as follows:
    On or about January or February 2004, [in] Marion County,
    West Virginia, . . . Randy Edward Hayes, having been convicted
    in a court of [an MCDV], that is to say, on or about February 24,
    1994, [he] was convicted in the Magistrate Court of Marion
    County of Battery; did knowingly possess in and affecting inter-
    state commerce a firearm . . . .
J.A. 16.
  5
    Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides
that "[w]ith the consent of the court and the government, a defendant
4                        UNITED STATES v. HAYES
                                     II.

   We are presented in this appeal with a pure question of statutory
interpretation: whether the MCDV Definition set forth in
§ 921(a)(33)(A) requires that the predicate offense underlying a
§ 922(g)(9) conviction have as an element a domestic relationship
between the offender and the victim. We review de novo the district
court’s ruling on this question of law. See United States v. Segers, 271
F.3d 181, 183 (4th Cir. 2001).

                                    III.

                                     A.

   Hayes maintains on appeal that the district court erred in denying
his motion to dismiss the superseding indictment, in that his 1994
State Offense did not have as an element a domestic relationship, and
it was thus not an MCDV. Pursuant to § 922(g)(9) of Title 18, under
which Hayes was convicted, it is unlawful for any person who has
been "convicted in any court of [an MCDV]" to possess a firearm. 18
U.S.C. § 922(g)(9) (the "Possession Statute"). The 1994 State Offense
on which Hayes was convicted was that of simple battery, in violation
of West Virginia Code section 61-2-9(c) (the "WV Statute").6 Impor-
tantly, the WV Statute does not have as an element a domestic rela-
tionship between the offender and his victim. See W. Va. Code § 61-
2-9.

  In resolving this appeal, we must determine whether the MCDV
Definition in § 921(a)(33)(A) requires that an MCDV have as an ele-

may enter a conditional plea of guilty . . . , reserving in writing the right
to have an appellate court review an adverse determination of a specified
pretrial motion. A defendant who prevails on appeal may then withdraw
the plea."
   6
     The WV Statute provides that "[i]f any person unlawfully and inten-
tionally makes physical contact of an insulting or provoking nature with
the person of another or unlawfully and intentionally causes physical
harm to another person, he shall be guilty of a misdemeanor." W. Va.
Code § 61-2-9(c).
                        UNITED STATES v. HAYES                           5
ment a domestic relationship between the offender and the victim.
The district court rejected Hayes’s contention on this point, relying
primarily on our unpublished decision in United States v. Ball, 7 Fed.
Appx. 210 (4th Cir. 2001).7 In Ball, we deemed the MCDV Definition
to require a predicate offense to have only "one element — the use
or attempted use of physical force; the relationship between the perpe-
trator and victim need not appear in the formal definition of the predi-
cate offense." Id. at 213. As explained below, however, the MCDV
Definition plainly provides, in its clause (ii), that the predicate offense
must have as an element one of certain specified domestic relation-
ships between the offender and the victim.

   The statutory reading we adopt with respect to the MCDV Defini-
tion is compelled for multiple reasons. First of all, the text and struc-
ture of the MCDV Definition plainly require that a predicate offense
have as an element one of the specified domestic relationships
between the offender and the victim. This reading is also supported
by the rule of the last antecedent and is not inconsistent with Con-
gress’s use of the singular term "element" in the MCDV Definition.
Second, the statutory language of the MCDV Definition is not
demonstrably at odds with the legislative intent underlying its adop-
tion by Congress. Finally, even if the MCDV Definition could be
deemed ambiguous, the rule of lenity mandates that any such ambigu-
ity be resolved in Hayes’s favor. Because the WV Statute has no
domestic relationship element, and because such an underpinning is
essential to the existence of an MCDV, Hayes’s motion to dismiss the
superseding indictment should have been granted.

                                    B.

                                    1.

   It is elementary, of course, that the starting point for an issue of
statutory interpretation is the language of the statute itself. See United
States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003). In that regard,
  7
    Ball is not controlling precedent in this case. See 4th Cir. R. 32.1
(citations to unpublished decisions issued prior to January 1, 2007, are
disfavored). In any event, we are convinced, on the basis of the position
explained herein, that Ball was not correctly decided.
6                      UNITED STATES v. HAYES
"[w]e must first determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute . . .
[and] our inquiry must cease if the statutory language is unambiguous
and the statutory scheme is coherent and consistent." Id. (internal
quotation marks omitted). We assess whether statutory language is
plain or ambiguous through our "reference to the language itself, the
specific context in which that language is used, and the broader con-
text of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997). "The plain meaning of legislation should be conclu-
sive, except in the rare cases [in which] the literal application of a
statute will produce a result demonstrably at odds with the intentions
of its drafters." United States v. Ron Pair Enters., Inc. 489 U.S. 235,
242 (1989) (internal quotation marks omitted).

   In this situation, the MCDV Definition mandates that a predicate
offense be a misdemeanor and have as an element the use of force
committed by a person in a domestic relationship with the victim. See
18 U.S.C. § 921(a)(33)(A). More specifically, the MCDV Definition
provides:

    (33)(A) Except as provided in subparagraph (C), the term
    "misdemeanor crime of domestic violence" means an
    offense that —

         (i) is a misdemeanor under Federal or State 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[.]

Id. As is readily apparent, the MCDV Definition is structured as a
statement of what is being defined, followed by a parallel list of two
essential attributes. After identifying the term "misdemeanor crime of
                        UNITED STATES v. HAYES                         7
domestic violence" as the thing being defined, the MCDV Definition
splits into two separate clauses. First, clause (i) provides that an
MCDV must be "a misdemeanor under Federal or State law." Id.
§ 921(a)(33)(A)(i). Next, clause (ii) of the MCDV Definition — the
crux of the dispute here — provides that an MCDV must have "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." Id. § 921(a)(33)(A)(ii).

   It is significant that a semicolon has been placed at the end of the
MCDV Definition’s clause (i), indicating that the attribute contained
therein is to be separate and distinct from the attribute contained in
clause (ii). See United States v. Naftalin, 441 U.S. 768, 774 n.5 (1979)
(recognizing that punctuation is not always decisive, but finding sig-
nificant "the use of separate numbers to introduce each subsection,
and the fact that the phrase . . . was set off solely as part of [a sepa-
rate] subsection"). Of even greater significance, there is no corre-
sponding semicolon in the structure or text of clause (ii), and thus no
indication that the second of the two attributes in the MCDV Defini-
tion somehow terminates before the words "committed by," or sets
the "committed by" phrase apart from the "have, as an element" lan-
guage, thereby creating a third statutory attribute. See 18 U.S.C.
§ 921(a)(33)(A). Rather, the structure of the MCDV Definition makes
it clear that the "committed by" phrase is part of the second attribute,
that is, clause (ii). See 73 Am. Jur. 2d Statutes § 143 ("[T]he colloca-
tion of the words and phrases in a statute is sometimes an aid in the
construction therein, and should not be arbitrarily disregarded [unless]
the intention of the legislature requires it to be disregarded.").

   If Congress, in drafting the MCDV Definition, had seen fit to place
the second half of clause (ii) — that is, the words "committed by a
current or former spouse, parent, or guardian of the victim" — in a
separate clause, we might very well accept the Government’s conten-
tion. However, that is not the statutory provision we are called upon
to assess. Here, the "committed by" phrase in clause (ii) was not set
apart by Congress, and the MCDV Definition thus does not restrict
the clause’s "has, as an element" language to only the first half
thereof, that is, the "use or attempted use of physical force, or the
threatened use of a deadly weapon."
8                       UNITED STATES v. HAYES
                                    2.

   As further support for our conclusion here, the reading explained
above is compelled by the longstanding "grammatical rule of the last
antecedent." See Barnhart v. Thomas, 540 U.S. 20, 26 (2003). As the
Supreme Court recently explained, pursuant to that rule "a limiting
clause or phrase . . . should ordinarily be read as modifying only the
noun or phrase that it immediately follows." See id.; see also 73 Am.
Jur. 2d Statutes § 138 ("Qualifying words, phrases, and clauses are
ordinarily confined to the last antecedent, or the words and phrases
immediately preceding."). The most important phrase of the MCDV
Definition for our analysis, that is, the "committed by" phrase in the
second half of clause (ii), must be read to modify its last antecedent,
that is, the phrase in the first half of that clause, "use or attempted use
of physical force, or the threatened use of a deadly weapon." That
phrase — not the noun "offense" — is the language the "committed
by" phrase immediately follows. See 18 U.S.C. § 921(a)(33)(A). Not
only is the noun "offense" not the noun or phrase immediately preced-
ing the "committed by" phrase; the noun "offense" does not even
appear in the same clause as the "committed by" phrase. See id.
Instead, the noun "offense" appears at the beginning of subparagraph
(A) of the MCDV Definition, and it is separated from the "committed
by" phrase by both clause (i) and the first half of clause (ii). See id.
Thus, under the grammatical rule of the last antecedent, the "commit-
ted by" phrase cannot be limited to modifying only the noun "of-
fense."

   In United States v. Barnes, the D.C. Circuit faced the issue we
address today, and it did not find the rule of the last antecedent to be
controlling. See 295 F.3d 1354, 1360 (D.C. Cir. 2002). It instead held
that the MCDV Definition does not require that a predicate offense
have as an element a domestic relationship between the offender and
his victim, relying on its conclusion that the rule of the last antecedent
is "not an inflexible rule, and is not applied where the context indi-
cates otherwise." See id. (citing United States v. Pritchett, 470 F.2d
455, 459 (D.C. Cir. 1972)). After so concluding, the court observed
that one does not commit a "use of force"; rather, one commits an "of-
fense." See id. According to the Barnes majority, because offenses are
committed, and the use of force is not, the second half of clause (ii),
the "committed by" phrase, could modify the noun "offense," and
                         UNITED STATES v. HAYES                           9
does not necessarily modify the "use of force" phrase. See id.; see
also United States v. Belless, 338 F.3d 1063, 1066 (9th Cir. 2003)
("[T]o read the ‘committed by’ phrase as modifying the phrase that
immediately precedes it . . . would be grammatically unsound.").8

   The explanation relied on by the Barnes court is, to us, a grammati-
cally labored and erroneous reading of the MCDV Definition. See 73
Am. Jur. 2d Statutes § 140 ("[S]tatutes are generally not to be con-
strued by strict and critical adherence to technical grammatical
rules."). We are not, in these circumstances, authorized to somehow
disregard the rule of the last antecedent, which requires us to read the
"committed by" phrase as modifying the "use of force" phrase.

   We acknowledge, of course, that our Court has heretofore recog-
nized that compliance with the rule of the last antecedent is not
always necessary or appropriate. See In re Witt, 113 F.3d 508, 511
(4th Cir. 1997). In Witt, Judge Michael observed that a particular
reading is not compelled by application of the rule of the last anteced-
ent where it is "quite plausible as a matter of common sense" that a
phrase could modify more than one term or phrase. See id.; see also
73 Am. Jur. 2d Statutes § 138 ("The rule [of the last antecedent] is not
applicable where a further extension or inclusion is clearly required
by the intent and meaning of the context, or disclosed by the entire
act."). That is not the situation we face, however, and our conclusion
on this point is not at all inconsistent with Witt.9 As we have
  8
     In Barnes, Judge Sentelle spelled out, in a well-reasoned dissent, the
view of the MCDV Definition that we adopt today. See 295 F.3d at
1368-70 (Sentelle, J., dissenting). In so doing, he relied on the plain lan-
guage of the MCDV Definition to conclude that it requires a predicate
offense to have as an element a domestic relationship. See id. at 1368-69.
In addressing Congress’s use of the singular rather than the plural of "el-
ement," Judge Sentelle deemed the distinction "largely meaningless,"
aptly observing that "the argument . . . is not how many elements are
involved, but what the singular element is." Id. at 1369. He then con-
cluded that the rule of lenity should also apply, and rejected the conten-
tion that the statute’s legislative history evinces a clear congressional
intent that precludes application thereof. See id. at 1369-70.
   9
     In Witt, a bankruptcy case, we were asked to interpret the statutory
provision "the plan may provide for the payment of the claim as modified
10                       UNITED STATES v. HAYES
explained, it is entirely implausible for the "committed by" phrase of
clause (ii) of the MCDV Definition to modify a noun ("offense") not
even appearing in that clause, to the total exclusion of the phrase
immediately preceding it. Cf. United States v. Naftalin, 441 U.S. 768,
774 n.5 (1979) (observing that placement of phrase in separate sub-
section indicates phrase was not intended to modify earlier subsec-
tions).

   The difference between a reading that is compelled by the rule of
the last antecedent, on the one hand, and one that is not so compelled,
on the other, is readily illustrated in the context of the MCDV Defini-
tion. If the Government had contended, for instance, that the rule of
the last antecedent required a reading that the "committed by" phrase
modifies only the words "threatened use of a deadly weapon," and not
the entire phrase "use or attempted use of physical force, or the threat-
ened use of a deadly weapon," we would reject that contention. It is
"quite plausible as a matter of common sense" that the "committed
by" phrase modifies the words "use or attempted use of physical
force" as well as the words "the threatened use of a deadly weapon."
As a result, we could swiftly dismiss any contention that the Govern-
ment is only required to prove a domestic relationship where the pred-
icate offense involved the use of a deadly weapon. Such a reading
would not be compelled because the "committed by" phrase is plausi-
bly read to modify the entire phrase "use or attempted use of physical
force, or the threatened use of a deadly weapon." Conversely, it defies
common sense to accept the proposition that the "committed by"
phrase does not modify the phrase immediately preceding it, but does,

pursuant to [the statute]" to determine whether the phrase "as modified
pursuant to [the statute]" described the noun "payment" or the noun
"claim." See 113 F.3d at 510-11. We concluded, in favor of the creditor,
that although the last antecedent was the noun "claim," the noun "pay-
ment" was the noun modified by the phrase "as modified pursuant to the
statute." See id. at 512. In so ruling, we decided that the rule of the last
antecedent was not controlling. See id. at 511. First, the noun "claim"
was part of the prepositional phrase "of the claim," which modified the
noun "payment." See id. Second, the rule of the last antecedent did not
compel the debtor’s proposed reading because it would have rendered the
noun "payment" superfluous. See id. at 511-12.
                       UNITED STATES v. HAYES                        11
on the other hand, modify the term "offense." Such a reading cannot
be reached without ignoring the distance separating the noun "of-
fense" from the "committed by" phrase, as well as the structural seg-
regation of the noun "offense" from its purported modifier. Because
the reading Hayes espouses is compelled by the rule of the last ante-
cedent, the "committed by" phrase must be read to modify the phrase
"use or attempted use of physical force, or the threatened use of a
deadly weapon," and as not modifying the noun "offense."

                                   3.

   Contrary to the position of the Government, Congress’s use of the
singular term "element" does not support its contention that a domes-
tic relationship need not be an element of a predicate offense to con-
stitute an MCDV. In United States v. Belless, the Ninth Circuit
decided that the singular term "element" supports the proposition that
the MCDV Definition requires that the predicate offense have only
the single element of "the use of physical force." 338 F.3d 1063, 1066
(9th Cir. 2003); accord United States v. Heckenliable, 446 F.3d 1048,
1050 (10th Cir. 2006); United States v. Meade, 175 F.3d 215, 218-19
(1st Cir. 1999); United States v. Smith, 171 F.3d 617, 620 (8th Cir.
1999). We are not convinced, however, that Congress’s use of the sin-
gular term "element" is of any significance to our interpretation of the
MCDV Definition. Whether a thing is an element does not depend
simply upon its label. See Apprendi v. New Jersey, 530 U.S. 466, 494
(2000) ("[I]t does not matter [how] the required finding is character-
ized . . . , because labels do not afford an acceptable answer." (inter-
nal quotation marks omitted)). Rather, a thing is an element if it is
necessary to a claim or offense. See Black’s Law Dictionary 559 (8th
ed. 2004) (defining element as "[a] constituent part of a claim that
must be proved for the claim to succeed"); see also Model Penal Code
§ 1.13 ("[An] ‘element of an offense’ means (i) such conduct or (ii)
such attendant circumstances or (iii) such a result of conduct as . . .
is included in the description of the forbidden conduct in the defini-
tion of the offense.").

   There are multiple examples of statutory provisions that contain an
"element" requiring that discrete facts be established to sustain an
offense. For example, a "crime of violence" — defined by statute as
an offense that "has as an element the use, attempted use, or threat-
12                       UNITED STATES v. HAYES
ened use of physical force against the person or property of another"
— has three essential components: (1) that one uses, threatens, or
attempts to use force (2) that is physical (3) against another person or
his property. See, e.g., 18 U.S.C. §§ 16(a), 924(c)(3)(A). Likewise,
even under the Government’s proposed reading here, the MCDV Def-
inition contains an example of an "element" that possesses discrete
factual requirements. See 18 U.S.C. § 921(a)(33)(A)(ii). The words
"threatened use of a deadly weapon" in clause (ii) of the MCDV Defi-
nition have three essential components: (1) that one has threatened to
use (2) a weapon (3) that is deadly. See id. Thus, we readily agree
with Judge Sentelle’s Barnes dissent, where he aptly characterized
Congress’s use of the singular rather than the plural form of "element"
as "largely meaningless," and framed the argument in terms of "not
how many elements are involved, but what the singular element is."
See United States v. Barnes, 295 F.3d 1354, 1369 (D.C. Cir. 2002)
(Sentelle, J., dissenting); see also supra note 8.

                                    C.

   The Government’s effort to rely on legislative history to support its
position on the MCDV Definition is also unavailing. The natural
reading of the MCDV Definition requires that the predicate offense
have as an element a relationship component, and we are obliged to
apply the statute as it is written, unless the "literal application of [the]
statute will produce a result demonstrably at odds with the intentions
of its drafters." United States v. Ron Pair Enters., Inc. 489 U.S. 235,
242 (1989) (internal quotation marks omitted). As explained below,
the literal application of the plain language of the MCDV Definition
is not "demonstrably at odds" with congressional intent.

   In analyzing legislative history, it is proper to conduct a thorough
examination of the entire history of the legislation, from introduction
to passage. See Regan v. Wald, 468 U.S. 222, 238 (1984) (conducting
"full examination of the legislative history — the Subcommittee hear-
ings, markup sessions, floor debates, and House and Senate Reports"
— to determine legislative intent). The legislative history of the Pos-
session Statute and the MCDV Definition relied on by the Govern-
ment (and certain of our sister circuits), however, highlights one
congressional speaker only, and consequently fails to account for the
full history of the legislation. See United States v. Barnes, 295 F.3d
                       UNITED STATES v. HAYES                        13
1364, 1365 (D.C. Cir. 2002) (limiting legislative history analysis to
remarks of bill’s sponsor in support of legislative intent determina-
tion); United States v. Meade, 175 F.3d 215, 219 (1st Cir. 1999)
("[The] statements, made by the principal architect of the bill before
final passage, clearly demonstrate Congress’s threshold understanding
that ‘misdemeanor crimes of domestic violence’ would not be limited
to those in which the relationship status was included as a formal ele-
ment of the statute of conviction."); United States v. Smith, 171 F.3d
617, 620 (8th Cir. 1999) (limiting legislative history analysis to
remarks of bill’s sponsor). The Supreme Court has recognized that,
"ordinarily even the contemporaneous remarks of a single legislator
who sponsors a bill are not controlling in analyzing legislative his-
tory." Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 118 (1980); see also Roy v. County of Lexington, 141 F.3d
533, 539 (4th Cir. 1998) ("The remarks of individual legislators, even
sponsors of legislation . . . are not regarded as a reliable measure of
congressional intent."). Thus, we are not at liberty, in analyzing con-
gressional intent, to ignore the Court’s direction that we must go
beyond the remarks of the legislation’s sponsor and consider the
enactment’s entire legislative history.

   The Possession Statute, under which Hayes was convicted, was
enacted on September 30, 1996, and it amended the 1968 Gun Con-
trol Act to prohibit firearm possession by any person previously con-
victed of an MCDV. See 18 U.S.C. § 922(d)(9), (g)(9). According to
the bill’s sponsor, Senator Lautenberg of New Jersey, the Possession
Statute was intended to place domestic violence misdemeanants, who
had avoided the felon-firearm prohibitions of the Gun Control Act by
virtue of state statutes that typically classified domestic violence
offenses as misdemeanors, on an equal footing with convicted felons,
who were already prohibited by the Act from possessing firearms. See
142 Cong. Rec. S10377-01 (1996) (statement of Sen. Lautenberg).
When introducing his bill, Senator Lautenberg stated:

    Under current Federal law, it is illegal for persons convicted
    of felonies to possess firearms. Yet, many people who
    engage in serious spousal or child abuse ultimately are not
    charged with or convicted of felonies. At the end of the day,
    due to outdated laws or thinking, perhaps after a plea bar-
    gain, they are, at most, convicted of a misdemeanor. In fact,
14                      UNITED STATES v. HAYES
     most of those who commit family violence are never even
     prosecuted. But when they are, one-third of the cases that
     would be considered felonies, if committed by strangers, are
     instead filed as misdemeanors.

Id. at S10377-78. Other legislators reiterated the view that the aim of
the Possession Statute was to make domestic misdemeanants subject
to the same firearm prohibitions as felons, regardless of the classifica-
tion of domestic violence offenses as misdemeanors under state law.
See id. at S10379 (statement of Sen. Wellstone) ("We do not let peo-
ple who have been convicted of a felony purchase [a] firearm. What
[Senator Lautenberg] is trying to do is plug this loophole and prohibit
someone convicted of domestic abuse, whether felony or misdemea-
nor, [from] purchasing a firearm."); 142 Cong. Rec. S10379-01,
10380 (statement of Sen. Feinstein) ("[W]e already prohibit . . . felons
from possessing a firearm. . . . [I]t is an unfortunate fact that many
domestic violence offenders are never convicted of a felony. Outdated
or ineffective laws often treat domestic violence as a lesser offense.
. . . [P]lea bargains often result in misdemeanor convictions for what
are really felony crimes.").

   The relevant legislative history thus reveals that these lawmakers
were focused on eliminating the loophole created by the state statutes
that classified domestic violence offenses as misdemeanors, rather
than as felonies. None of these congressional statements, however,
directly addresses the question posed here, whether a "crime of
domestic violence" — either felony or misdemeanor — would require
such an offense to have, as an element, a domestic relationship
between the offender and the victim. The only statement arguably on
point was made by Senator Lautenberg, addressing the implementa-
tion of the enactment:

     Mr. President, convictions for domestic violence-related
     crimes often are for crimes, such as assault, that are not
     explicitly identified as related to domestic violence. There-
     fore, it will not always be possible for law enforcement
     authorities to determine from the face of someone’s criminal
     record whether a particular misdemeanor conviction
     involves domestic violence, as defined in the new law. . . .
     I would strongly urge law enforcement authorities to thor-
                         UNITED STATES v. HAYES                         15
       oughly investigate misdemeanor convictions on an appli-
       cant’s criminal record to ensure that none involves domestic
       violence, before allowing the sale of a handgun.

142 Cong. Rec. S11872-01, S118788 (1996) (statement of Sen. Lauten-
berg).10 Other than the foregoing statement, which is not controlling
on this point, see GTE Sylvania, 447 U.S. at 118, there is no indica-
tion of any legislative intention that, despite the MCDV Definition’s
explicit terms to the contrary, a predicate offense need not have a
domestic relationship element to qualify as an MCDV.

   Additionally, there are, in this instance, clear indicia that the avail-
able legislative history is an unreliable guide to Congress’s intent. As
the First Circuit observed in United States v. Hartsock, "[b]ecause the
Lautenberg Amendment was ultimately passed as a part of a last min-
ute series of congressional maneuvers, the legislative history concern-
ing the statute is sparse. Indeed, neither the House nor the Senate
held hearings on the statute." 347 F.3d 1, 5 n.4 (1st Cir. 2003)
(emphasis added) (citations omitted). There is thus no reliable indica-
tion in the legislative history that we should disregard the plain lan-
guage of the MCDV Definition. In the face of that language, "the
wisdom of Congress’ action . . . is not within our province to second-
guess." Eldred v. Ashcroft, 537 U.S. 186, 222 (2003).11 We are thus
  10
      Senator Lautenberg prefaced the foregoing statement by observing
that his proposal "incorporates this new category of offenders into the
Brady law, which provides for a waiting period for handgun purchases
[and requires] local law enforcement authorities to make reasonable
efforts to ensure that those who are seeking to purchase a handgun are
not prohibited under Federal law from doing so." 142 Cong. Rec.
S11872-01, S118788 (1996).
   11
      Indeed, there is more than a thread of wisdom in requiring that the
predicate offense, in order to be an MCDV, have as an element a domes-
tic relationship. Requiring a domestic relationship element will avoid
debate years later — in these circumstances, a full ten years later —
about the nature of the relationship between an offender and his victim.
Here, there is no dispute that Hayes and Mary Carnes were married and
had a child at the time of his 1994 State Offense. In other cases, how-
ever, the relationship between the offender and his victim will likely be
a subject of dispute. See, e.g., White v. Dep’t of Justice, 328 F.3d 1361,
16                       UNITED STATES v. HAYES
unable to read the MCDV Definition, as the Government would have
us do, without rewriting it to eliminate the text and structure that Con-
gress used, and we are not permitted to rewrite the MCDV Definition
to say what we think Congress meant. We are instead obliged to apply
its plain language. We must therefore reject the Government’s conten-
tion that the legislative history evinces a clear congressional intent
which excuses us from applying the plain language of the MCDV
Definition.

                                     D.

   Although this appeal can be readily disposed of on the basis of the
foregoing analysis, one additional point warrants our attention, that is,
the rule of lenity. If we were to accept the proposition that some
ambiguity exists in the MCDV Definition, the well-settled rule of len-
ity would require us to resolve any such ambiguity in favor of Hayes.
As the Supreme Court has observed, "ambiguity concerning the ambit
of criminal statutes should be resolved in favor of lenity." Cleveland
v. United States, 531 U.S. 12, 25 (2000) (internal quotation marks
omitted). "The rule of lenity is premised on two ideas: First, a fair
warning should be given to the world in language that the common
world will understand, of what the law intends to do if a certain line
is passed; second, legislatures and not courts should define criminal
activity." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,
515 U.S. 687, 704 n.18 (1995) (internal quotation marks omitted); see
also 73 Am. Jur. 2d Statutes § 197 ("[The rule of lenity] protects the
individual against arbitrary discretion by officials and judges, and
guards against judicial usurpation of the legislative function which
would result from enforcement of penalties when the legislative
branch did not clearly prescribe them.").

1369 (Fed. Cir. 2003) (considering whether substantial evidence sup-
ported finding that offender had cohabitated with victim as a spouse or
been a person similarly situated to a spouse but ultimately finding cohab-
itation "overwhelmingly supported" by evidence). But see United States
v. Meade, 175 F.3d 215, 222 n.1 (1st Cir. 1999) ("Federal criminal trials
typically involve proof and differential fact finding, and the issue of rela-
tionship status is by no means outside a jury’s competence.").
                          UNITED STATES v. HAYES                            17
   Thus, even if we were unable to conclude, on the basis of the plain
language of the MCDV Definition, that a predicate offense must have
as an element a domestic relationship in order to constitute an
MCDV, we would be obliged by the rule of lenity to resolve any such
ambiguity in favor of Hayes. Contrary to the assertions of some
courts, see, e.g., United States v. Meade, 175 F.3d 215, 222 (1st Cir.
1999), there is simply no clear congressional intent that permits us to
disregard the rule of lenity and its commendable aims. As Judge Sen-
telle aptly observed on this very point:

       That a snippet of legislative history is more consistent with
       the less lenient application of a criminal statute hardly
       erodes the laudable principles of the rule of lenity. . . . [I]t
       seems to me most inconsistent with fundamental fairness
       and certainly with the rule of lenity to suppose that for a
       defendant to understand that his conduct is illegal, he must
       read not only the words of the statute, but find and construe
       the abstruse comments of a single senator on a single day.

United States v. Barnes, 295 F.3d 1354, 1370 (D.C. Cir. 2002) (Sen-
telle, J., dissenting). To read the MCDV Definition as the Govern-
ment suggests would subject individuals to prosecution and possible
conviction under the Possession Statute without fair warning, and
would be a usurpation of the congressional function. In sum, were
there ambiguity in the MCDV Definition, we would nonetheless be
obliged, by virtue of the rule of lenity, to rule as we do today, that is,
that a predicate offense must, in order to qualify as an MCDV, have
as an element a domestic relationship.12
  12
    In ruling as we do today, we recognize that we are in the minority
on this issue, in that several of our sister circuits have ruled that the pred-
icate offense need not, in order to be an MCDV, contain a domestic rela-
tionship element. See United States v. Heckenliable, 446 F.3d 1048, 1049
(10th Cir. 2006); United States v. Belless, 338 F.3d 1063, 1067 (9th Cir.
2003); White v. Dep’t of Justice, 328 F.3d 1361, 1367 (Fed. Cir. 2003);
United States v. Shelton, 325 F.3d 553, 562 (5th Cir. 2003); United
States v. Barnes, 295 F.3d 1354, 1365-66 (D.C. Cir. 2002); United States
v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000); United States v.
Meade, 175 F.3d 215, 219 (1st Cir. 1999); United States v. Smith, 171
F.3d 617, 620 (8th Cir. 1999).
18                       UNITED STATES v. HAYES
                                     IV.

   Pursuant to the foregoing, we reverse the denial of the motion to
dismiss the superseding indictment and remand for such further pro-
ceedings as may be appropriate, including the withdrawal of Hayes’s
guilty plea on Count One, see Fed. R. Crim. P. 11(a)(2), and dismissal
of the superseding indictment.13

                                           REVERSED AND REMANDED

WILLIAMS, Circuit Judge, dissenting:

   I would affirm the district court. Respectfully, I disagree with the
majority that our sister circuits have erred in concluding that 18
U.S.C.A. § 921(a)(33)(A) (West 2000 & 2006) plainly requires that
only the mode of aggression, and not the relationship status between
the perpetrator and the victim, must be an element of the predicate
misdemeanor offense. In addition, I find no merit in Hayes’s conten-
tion that the Government may not prove the existence of a domestic
relationship through evidence other than the state court’s charging
papers and record of his guilty plea.

   In ruling as we do today, we are not in the minority on this issue,
we are the minority. The nine circuits that have considered the ques-
tion in a published opinion have uniformly rejected the interpretation
advanced by the majority. See United States v. Heckenliable, 446 F.3d
1048, 1049 (10th Cir. 2006); United States v. Belless, 338 F.3d 1063,
1067 (9th Cir. 2003); White v. Dept. of Justice, 328 F.3d 1361, 1364-
67 (Fed. Cir. 2003); United States v. Shelton, 325 F.3d 553, 562 (5th
Cir. 2003); United States v. Barnes, 295 F.3d 1354, 1358-61 (D.C.
Cir. 2002); United States v. Kavoukian, 315 F.3d 139, 142-44 (2d Cir.
2002); United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir.
2000); United States v. Meade, 175 F.3d 215, 218-21 (1st Cir. 1999);
United States v. Smith, 171 F.3d 617, 619-21 (8th Cir. 1999).1
Accordingly, I respectfully dissent.
  13
     Hayes also maintains on appeal that the Government was not entitled
to use extrinsic evidence to prove the 1994 relationship between him and
Mary Carnes. Because we agree with his contention on the MCDV issue,
we need not reach and address his additional contention.
   1
     A panel of this court has likewise refuted the majority’s interpretation,
albeit in an unpublished opinion. See United States v. Ball, 7 Fed. App’x
                         UNITED STATES v. HAYES                          19
                                     I.

   Section 921(a)(33)(A) defines a "misdemeanor crime of domestic
violence" ("MCDV") as follows:

     Except as provided in subparagraph (C), the term "misde-
     meanor crime of domestic violence" means an offense that
     —

          (i) is a misdemeanor under Federal or State 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 cohabitating 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[.]2

18 U.S.C.A. § 921(a)(33)(A). Thus, the statutory definition divides
the term into two separately defined components — subsection (i)
explains what Congress meant by "misdemeanor," and subsection (ii)
defines "crime of domestic violence." My colleagues derive their
interpretation of the MCDV definition from the following observa-

210, 213 (4th Cir. 2001) (unpublished) (concluding that "[s]ection
921(a)(33)(A) requires the predicate offense to have only one element -
the use or attempted use of physical force; the relationship between per-
petrator and victim need not appear in the formal definition of the predi-
cate offense"). Unpublished decisions, of course, lack precedential value,
and I reference Ball simply to illustrate the overwhelming consensus that
existed prior to the majority’s decision in the case before us. See 4th Cir.
R. 32.1 (citations to unpublished decisions issued prior to January 1,
2007 are permitted, but disfavored).
  2
    Interestingly, Congress did not place a period at the end of this sen-
tence.
20                     UNITED STATES v. HAYES
tions: (1) Congress employed this bifurcated approach; (2) the "com-
mitted by . . ." phrase forms part of the second subsection; and (3) the
two sentence fragments in § 921(a)(33)(A)(ii) are not separated by a
semicolon. With all due respect, however, observation is not analysis.
For, the reasons that follow, I believe the structure of
§ 921(a)(33)(A)(ii) cannot support the weight the majority would
have it bear.

   "Our first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with regard
to the particular dispute in the case." Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997). Questions concerning the plainness or the
ambiguity of the statutory language are resolved "by reference to the
language itself, the specific context in which that language is used,
and the broader context of the statute as a whole." Id. at 341.

   As explained above, the statute bifurcates the MCDV definition
into two separately defined components. Section 921(a)(33)(A)(i)
defines "misdemeanor" and § 921(a)(33)(A)(ii) sets forth the criteria
necessary for an offense to qualify as a "crime of domestic violence."
The language of § 921(a)(33)(A)(ii), read in its natural and obvious
sense, supports only one interpretation — that § 921(a)(33)(A)(ii)
requires the predicate offense to have, as, an element, the use or
attempted use of physical force (or the threatened use of a deadly
weapon), and to have been committed by a person who has one of the
enumerated relationships with the victim. Thus, the statute unambigu-
ously requires that only the mode of aggression, and not the relation-
ship status between the perpetrator and the victim, be included in the
formal definition of the predicate misdemeanor offense.

   It is significant that Congress used the singular noun "element"
immediately preceding the first of two conceptually distinct attributes.
See, e.g., Meade, 175 F.3d at 218-19. The use of force and the rela-
tionship between the aggressor and the victim "are two very different
things, and thus would constitute two different elements." Belless,
338 F.3d at 1066. Had Congress intended that both requirements be
mandatory elements of the predicate offense, it would have used the
plural word "elements," or employed its often-used phrase "has as its
elements," to encompass both requirements. See Barnes, 295 F.3d at
                        UNITED STATES v. HAYES                        21
1363; accord Meade, 175 F.3d at 219; Belless, 338 F.3d at 1066;
Heckenliable, 446 F.3d at 1050.

   The majority’s narrow focus on the placement of punctuation
marks distorts the plain meaning of the statutory language and rests
ultimately on a misconstruction of Supreme Court precedent. In
United States v. Naftalin, 441 U.S. 768 (1979), the Supreme Court
simply noted that "matters like punctuation are not decisive of the
construction of a statute," but "where they reaffirm conclusions drawn
from the words themselves they provide useful confirmation." 441
U.S. at 774 n.5 (internal quotation marks and alteration omitted). The
majority draws no conclusions from the words themselves (other than
deeming the use of the singular word "element" insignificant), basing
its decision instead on the placement of the "committed by" phrase in
the second of two subsections separated by a semicolon.

   My colleagues’ reliance on the rule of the last antecedent is like-
wise misguided. As the majority acknowledges, "a particular reading
is not compelled by application of the rule of the last antecedent
where it is ‘quite plausible as a matter of common sense’ that a phrase
could modify more than one term or phrase." Ante at 9 (citing In re
Witt, 113 F.3d 508, 511 (4th Cir. 1997)); see also Barnhart v.
Thomas, 540 U.S. 20, 26 (2003) (stating that the rule of the last ante-
cedent "is not absolute and can assuredly be overcome by other indi-
cia of meaning"). The majority asserts that an interpretation consistent
with the rule of the last antecedent is compelled by the distance sepa-
rating the "committed by" phrase from the word "offense." The opin-
ion cites no support for this proposition, however, and I can conceive
of none. As discussed above, to determine whether reliance on the
rule of the last antecedent is appropriate, we look to whether other
indicia of meaning suggest that a syntactically disfavored construction
is plausible, not to the distance between words.

   In addition, I note that the majority’s approach creates a significant
practical anomaly that undermines Congress’s goals in enacting 18
U.S.C.A. § 922(g)(9) (West 2000). When Congress enacted
§ 922(g)(9), fewer than half of the states had misdemeanor statutes
that formally included relationship status as an element of a misde-
meanor domestic assault offense; most states charged domestic vio-
lence offenders under their general assault statutes. See e.g.,
22                      UNITED STATES v. HAYES
Heckenliable, 446 F.3d at 1051-52. In my view, it is unlikely that
Congress sought to address a nationwide issue by enacting legislation
that would immediately become a dead letter in a majority of the states.3

                                    II.

   Because the statute has a plain and unambiguous meaning with
regard to the particular dispute at issue in this case, and the statutory
scheme is coherent and consistent, resort to the legislative history is
unnecessary. See Robinson, 519 U.S. at 340 ("Our inquiry must cease
if the statutory language is unambiguous and the statutory scheme is
coherent and consistent" (internal quotation marks omitted)). Accord-
ingly, I do not fault the majority’s decision not to rely on the statute’s
legislative history.

   I am forced, however, to take issue with my colleagues’ unwilling-
ness to concede that the available legislative history is more than "ar-
guably" on point. My colleagues assert that "[t]he only statement
arguably on point was made by Senator Lautenberg, addressing the
implementation of the enactment[.]" Ante at 14. Senator Lautenberg
explained that because
  3
    Although four of the five states within our jurisdiction —North Caro-
lina, South Carolina, Virginia, and West Virginia — have misdemeanor
domestic assault statutes that include both the mode of aggression and
the relationship status between the perpetrator and the victim within the
formal definition of the offense, see N.C. Gen. Stat. § 14-33(d) (2005);
S.C. Code Ann. § 16-25-20 (2003 & Supp. 2006); Va. Code Ann. § 18.2-
57.2 (2004 & Supp. 2006); W. Va. Code § 61-2-28 (Lexis Nexis 2005
& Supp. 2006), Maryland does not. Although Maryland has enacted a
domestic violence statute, its primary focus is preventative, not punitive.
Maryland Code §§ 4-501 through 5-516 of the Family Law Article
authorizes courts to issue civil protective orders to victims of domestic
violence and "provides for a wide variety and scope of available reme-
dies designed to separate the parties and avoid future abuse." Katsenelen-
bogen v. Katsenelenbogen, 775 A.2d 1249, 1256 (Md. Ct. App. 2001)
(internal quotation marks omitted). Perpetrators of domestic violence, of
course, remain "subject to prosecution for their conduct-for assault, rape
and other sexual offenses, criminal homicide, kidnapping-and, indeed,
for failing to comply with relief provided in a protective order." Id. at
1256 n.2.
                         UNITED STATES v. HAYES                         23
      convictions for domestic violence-related crimes often are
      for crimes, such as assault, that are not explicitly identified
      as related to domestic violence[,] . . . it will not always be
      possible . . . to determine from the face of someone’s crimi-
      nal record whether a particular misdemeanor conviction
      involves domestic violence, as defined in the new law. . . .

142 Cong. Rec. S11872-01, *S11878 (1996). Contrary to my col-
leagues’ characterization, I believe this comment directly addresses
the issue of whether crimes that do not include a domestic relation-
ship as an element qualify as MCDVs "as defined in
[§ 921(a)(33)(A)]." Id. In addition, the legislative history reveals that
§ 921(a)(33)(A)(ii), as originally proposed, defined a crime of domes-
tic violence as a "crime of violence" committed against an individual
with whom the perpetrator had a domestic relationship. Some mem-
bers of Congress, however, expressed concern that "crime of vio-
lence" was potentially "too broad, and could be interpreted to include
an act such as cutting up a credit card with a pair of scissors." 142
Cong. Rec. S11872-01, *S11877. As a result, shortly before the stat-
ute was enacted, Congress replaced "crime of violence" with "has, as
an element, the use or attempted use of physical force, or the threat-
ened use of a deadly weapon." See id.

                                   III.

   Having explained the basis for my disagreement with the majori-
ty’s interpretation of § 921(a)(33)(A), I now turn to the arguments
advanced by Hayes. Hayes contends that the district court erred in
refusing to dismiss the Superseding Indictment because the Govern-
ment lacked "judicially noticeable evidence of a domestic relation-
ship." (Appellant’s Br. at 8.) This argument reflects Hayes’s belief
that the Government may not prove the existence of a domestic rela-
tionship through evidence other than the state court’s charging papers
and record of his guilty plea.4 The district court rejected this conten-
  4
   Hayes’s argument stems from a somewhat puzzling misinterpretation
of United States v. Nobriga, 408 F.3d 1178 (9th Cir. 2005), withdrawn
by 433 F.3d 1090 (9th Cir. 2006). Nobriga held only that (1) a conviction
under the "physically abuse" prong of Hawaii’s "Abuse of a Family or
24                     UNITED STATES v. HAYES
tion, reasoning that because the MCDV definition does not require
that the relationship between the victim and the perpetrator appear in
the formal definition of the offense, there existed no basis for confin-
ing the Government’s method of proof to state court records. The dis-
trict court went on to conclude that, because the indictment tracked
the language of 18 U.S.C.A. § 922(g)(9) and properly alleged each
element of the offense, the indictment was valid on its face. See
United States v. Wills, 346 F.3d 476, 488 (4th Cir. 2003) ("An indict-
ment returned by a legally constituted and unbiased grand jury, . . .
if valid on its face, is enough to call for trial of the charges on the
merits." (internal quotation marks and alteration omitted)). I find no
fault with this analysis and agree with the district court that, as a
result, whether the Government had sufficient evidence to prove
Hayes guilty of the crime charged was a matter for the jury to decide
and not a proper basis on which to challenge the indictment itself. See
Midland Asphalt Corp. v. United States, 489 U.S. 794, 802 (1989)
(stating that "[o]nly a defect so fundamental that it causes the grand
jury no longer to be a grand jury, or the indictment no longer to be
an indictment, gives rise to the constitutional right not to be tried").

   Hayes’s second argument on appeal parallels his first. He contends
that the district court erred in admitting "extrinsic evidence" of a
domestic relationship, because under Shepard v. United States, 544
U.S. 13 (2005), and United States v. Washington, 404 F.3d 834 (4th
Cir. 2005), 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 constitute the only
acceptable means to prove a prior conviction.

  I agree with the district court that the evidentiary limits in Shepard
and Washington apply only to judicial fact-finding. The restrictions

Household Member" ("AFHM") statute was not categorically a convic-
tion for an MCDV, because the Hawaii statute encompassed a broader
range of relationships than those enumerated in § 921(a)(33)(A)(ii), and
(2) because the relationship between Nobriga and the victim of his
Hawaii AFHM conviction was not included in § 921(a)(33)(A)(ii), the
Government had failed to prove that Nobriga had been previously con-
victed of an MCDV. Id. at 1182-83.
                       UNITED STATES v. HAYES                       25
safeguard a defendant’s Sixth Amendment right "to have a jury deter-
mine, 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 essen-
tial to his punishment," United States v. Booker, 543 U.S. 220, 232
(2005) (internal quotation marks omitted). There exists no logical or
precedential basis for the extension of the same limitations to the
range of evidence that is admissible when the Government is being
put to its burden of proof at trial.

                                 IV.

   In sum, I would hold that § 921(a)(33)(A) plainly requires that only
the mode of aggression, and not the relationship status between the
perpetrator and the victim, must be an element of the predicate misde-
meanor offense. The Government, of course, remains obligated to
prove the existence of a domestic relationship as defined in
§ 921(a)(33)(A)(ii) to a jury beyond a reasonable doubt, using "extrin-
sic evidence" admissible under the Federal Rules of Evidence if nec-
essary. Accordingly, I respectfully dissent.
