J. HILARY BILLINGS, KENNETH ALBERT SALES, Defendant.
DONALD E. CLARK USA, Plaintiff.
CRAIG M. WOLFF, USA, Plaintiff.
ORDER ON DEFENDANT’S MOTION TO RECONSIDER
Nancy Torresen United States District Judge
Kenneth Sales moves this Court to reconsider a January 9, 2014 order denying his motion to dismiss the indictment. (ECF No. 73). The one-count indictment, returned on July 23, 2013, charges Sales under 18 U.S.C. § 922(g)(9) with possession of a firearm by an individual convicted of a misdemeanor crime of domestic violence. The Defendant asserts that his prior conviction under a Vermont simple assault statute does not qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). This Court previously held, under United States v. Booker, 644 F.3d 12 (1st Cir. 2011), that Sales’s conviction for recklessly inflicting bodily injury on his girlfriend was a misdemeanor crime of domestic violence. Order on Def.s’ Mot. to Dismiss Indictment. (ECF No. 56).
Sales requests that the Court reconsider its decision in light of three recent cases: the Supreme Court’s opinion in United States v. Castleman, 134 S.Ct. 1405 (2014), the Supreme Court’s remand order in Armstrong v. United States, 134 S.Ct. 1759 (2014), and the First Circuit’s opinion in United States v. Carter, 752 F.3d 8 (1st Cir. 2014). The Defendant contends that, in light of these decisions, the Court should dismiss the indictment against him.
I. The Underlying State Conviction
On December 16, 2010, at a change of plea hearing, Kenneth Sales pled guilty to one count of “ASSAULT–SIMPLE—MUTUAL AFFRAY” under 13 Vt. Stat. Ann. tit. 13, § 1023. Exh. 1 to Def's Mot. to Dismiss 5 (ECF No. 28-1). Count one stated: “Kenneth Sales, in this Territorial Unit, in the County of Bennington, at Arlington, on or about October 17, 2010 . . . engaged in a fight or scuffle entered into by mutual consent.” Exh. 2 to Gov't's Opp'n to Def.'s Mot. to Dismiss (ECF No. 31-2).
Vermont’s simple assault statute states:
(a) A person is guilty of simple assault if he or she:
(1) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent ...