The Fourth Circuit Court of Appeals in United States v. White, 606 F.3d 144 (4th Cir. 2010) applied the Supreme Court’s recent decision in Johnson (wherein the Supreme Court held simple touching doesn’t constitute “physical force” under the Armed Career Criminal Act).
The Fourth Circuit held that section 18.2-57.2(A) of the Virginia Code Annotated includes nonviolent force, such as an offensive touching, and that “violent force,” as required in Johnson, is not an element of assault and battery under Virginia common law. United States v. White, 606 F.3d 144 (4th Cir. 2010).
The Court concluded:
“We thus conclude that the phrase “physical force” in § 921(a)(33)(A)(ii) means force, greater than a mere offensive touching, that is capable of causing physical pain or injury to the victim. Accordingly, a conviction for assault and battery in Virginia does not require “physical force” as an element of the crime. As a consequence, a Virginia conviction for assault and battery under VA CODE ANN. § 18.2-57.2, in and of itself, does not meet the definition of a § 922(g)(9) “misdemeanor crime of domestic violence.” Applying the “modified categorical approach” outlined in Taylor v. United States, 495 U.S. 575 (1990) and Shepard, the record is devoid of any qualifying documentation to show White’s conviction under VA CODE ANN. § 18.2-57.2 was otherwise “a misdemeanor crime of domestic violence” under § 922(g)(9). We therefore reverse White’s conviction and vacate his sentence.”
CA4 US vs. White –
