                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                        2009-3240


                                     DANIEL ALLEN,

                                                        Petitioner,

                                             v.

                              DEPARTMENT OF JUSTICE,

                                                        Respondent.


       Daniel Allen, of Canon City, Colorado, pro se.

       Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Donald E. Kinner, Assistant Director.

Petition for review of an Arbitrator’s Decision
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                       2009-3240


                                    DANIEL ALLEN,

                                                        Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                        Respondent.



                    Petition for review of an arbitration decision in
                    FMCS No. 08-55230 by Marvin L. Schurke.

                           __________________________

                             DECIDED: January 8, 2010
                           __________________________


Before RADER, GAJARSA, and DYK, Circuit Judges.

PER CURIAM.

      Daniel Allen appeals an arbitrator’s decision sustaining the Department of

Justice’s (“the Agency’s”) action removing Mr. Allen from his position as a correctional

officer at the Federal Bureau of Prisons (“BOP”) in Florence, Colorado. Dep’t of Justice

v. Am. Fed’n of Gov’t Employees, Local 1302, FMCS No. 08-55230 (2009) (Schurke,

Arb.). For the reasons stated below, we affirm.
                                      BACKGROUND

       Beginning on August 6, 1995, Mr. Allen was employed with the BOP as a Senior

Officer Specialist at the Federal Correctional Complex in Florence, Colorado. On June

24, 2007, Mr. Allen was arrested for driving his car while intoxicated and for injuring his

thirteen year old son during an altercation in the car.      The Colorado State District

Attorney charged Mr. Allen with nineteen counts. Count four of the complaint alleged

that Mr. Allen unlawfully, knowingly, or recklessly caused bodily injury to his son. He

pled guilty to two misdemeanor violations, namely (1) third degree assault and

(2) driving while ability impaired.   See Colo. Rev. Stat. Ann. §§ 18-3-204 & 42-4-

1301(1)(b) (2009). Mr. Allen was sentenced on both counts for which he pleaded guilty.

       He subsequently reported his sentencing to Warden Ron Wiley. Mr. Allen also

provided an affidavit regarding his arrest and conviction to the Special Investigative

Lieutenant who investigated his possible misconduct. In the affidavit, he denied striking

or kicking his son but stated that “[he] reached into the car and pulled [his son] out by

his arm” and that “[his son] started to struggle from [him] and all [he] did was attempt to

keep him from running away.” On September 15, 2008, Mr. Allen was removed from his

position based upon the following three charges: (1) “Failure to Maintain Qualifications

of Your Position to Possess a Firearm”; (2) “Off-Duty Misconduct”; and (3) “Absent

Without Leave.”

       Pursuant to 5 U.S.C. § 7121 and Articles 32 of the Master Agreement between

the BOP and the Council of Prison Locals, American Federation of Government

Employees 1302, Mr. Allen challenged his removal. Following a hearing, the arbitrator

concluded that BOP did not prove its charges of off-duty misconduct and absence




2009-3240                                   2
without leave, but that it did prove the charge of failure to maintain the required

qualification of his position to possess a firearm. The arbitrator found that Mr. Allen’s

conviction of assault in the third degree is “a misdemeanor crime of domestic violence”

under 18 U.S.C. § 921(a)(9), which makes it unlawful for any person who has been

convicted of a misdemeanor of domestic violence to possess a firearm. 1 Accordingly,

the arbitrator sustained the Agency’s action to remove Mr. Allen.

      Mr. Allen timely appealed the arbitrator’s decision. We have jurisdiction pursuant

to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

      In an appeal from an arbitrator’s decision, we apply the same standard of review

as in the case of an appeal from a final decision of the Merit Systems Protection Board.

5 U.S.C. § 7121(f) (2006). Accordingly, a decision of the arbitrator must be affirmed

unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.”

5 U.S.C. § 7703(c).

      On appeal, Mr. Allen argues that the arbitrator erred as a matter of law in

upholding his removal by finding that he had been convicted of “a misdemeanor crime

of domestic violence” within the meaning of 18 U.S.C. § 921(a)(33). We disagree. A

“misdemeanor crime of domestic violence” is defined in § 921(a)(33) as “an offense that



      1
             18 U.S.C. § 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 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.”


2009-3240                                  3
. . . (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   .   .   .   .”

18 U.S.C. § 921(a)(33). In addition, the Colorado statute under which Mr. Allen was

convicted states: “A person commits the crime of assault in the third degree if . . . [t]he

person knowingly or recklessly causes bodily injury to another person or with criminal

negligence the person causes bodily injury to another person by means of a deadly

weapon.” Colo. Rev. Stat. Ann. § 18-3-204(1)(a) (2009).

       In United States v. Hayes, the Supreme Court held that “§ 921(a)(33)(A) defines

misdemeanor crime of domestic violence as a misdemeanor offense that (1) has, as an

element, the use of force, and (2) is committed by a person who has a specified

domestic relationship with the victim.”        Id. (quotation marks and brackets omitted).

Here, it is undisputed that Mr. Allen’s son was involved in the altercation, which is

sufficient to satisfy the “specified domestic relationship with the victim” requirement of

the statute. Therefore, the only remaining question is whether Colorado’s third degree

assault statute includes as an element “the use or attempted use of physical force.”

18 U.S.C. § 921(a)(33)(A)(ii).

       Mr. Allen argues that Colorado’s third degree assault statute does not require

“the use or attempted use of physical force” as an element, and therefore he was not

convicted of a “misdemeanor crime of domestic violence” to justify his removal by the

Agency. Mr. Allen relies heavily on United States v. Perez-Vargas, 414 F.3d 1282

(10th Cir. 2005). In Perez-Vargas, the Tenth Circuit addressed whether a conviction

under Colorado’s third degree assault statute constituted a “crime of violence” under the




2009-3240                                       4
Federal Sentencing Guidelines. Id. at 1283-84. The Federal Sentencing Guidelines

define a “crime of violence” as one that includes, as an element, “the use, attempted

use, or threatened use of physical force.”     Id. at 1286 n.3.   The Court found that

Colorado’s third degree assault statute was broad and included conduct that did not

involve the use, attempted use, or threatened use of physical force. Id. The Tenth

Circuit explained, however, that where the statute is broad enough to encompass both

violent and non-violence crimes, a court is permitted to look “beyond the statute” to the

prior court records, including “charging documents, the judgment, any plea thereto, and

finding by the [sentencing] court.” Id. at 1284 (alteration in original). Likewise, the

Supreme Court held that, for the purpose of conviction, a court may consider prior court

documents, including “the terms of the charging document, the terms of a plea

agreement or transcript of colloquy between the judge and the defendant . . . , or to

some comparable judicial record of this information” where an element of the offense is

not obvious from the statute’s language. Shepard v. United States, 544 U.S. 13, 24

(2005).

      In this case, the Colorado third degree assault statute is broad enough to

encompass crimes involving the use of force and crimes involving no use of force.

Accordingly, we will look beyond the plain language of the statute to determine whether

the use of force was an element of Mr. Allen’s conviction. The arbitrator found that

Mr. Allen pled guilty to count four of the complaint alleging that he “unlawfully,

knowingly, or recklessly caused bodily injury” to his son. The arbitrator also found that

Mr. Allen admitted that “he sought to ‘pull’ his son out of a car and that he sought to

‘hold’ his son to prevent escape, both of which connote the use and/or threatened use




2009-3240                                  5
of physical force.” This evidence is sufficient to show that Mr. Allen was convicted of an

offense involving the use of force. Accordingly, the arbitrator’s decision finding that

Mr. Allen had been convicted of “a misdemeanor crime of domestic violence” as defined

by § 921(a)(33) is supported by substantial evidence and there was no legal error.

                                     CONCLUSION

      For the foregoing reasons, the final decision of the arbitrator sustaining the

Agency’s decision to remove Mr. Allen is affirmed.

      No costs.




2009-3240                                   6
