United States v. Voisine

Dissenting.

The majority fails to adequately justify its departure from the Supreme Court’s direction and the analogous decisions of our sister circuits. Indeed, the Supreme Court’s message is clear. In United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), the Court noted that we are the only outlying circuit on this question: our prior precedent is inconsistent with every other circuit court to consider the issue. See id. at 1414 n. 8 (contrasting our past position with that of the Second,. Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals, which have “uniformly held that recklessness is not sufficient” to “constitute a ‘use’ of force”). The Court then remanded the instant cases for reconsideration in light of Castleman, see Armstrong v. United States, — U.S. -, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), implicitly suggesting that we bring our holdings in line with the other federal circuit courts of appeals. We are obligated to heed the Supreme Court’s direction. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991) (“[Fjederal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly; when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.”). Not only are the Supreme Court’s instructions mandatory, but the legal reasoning and analysis in the cases cited by the Court are also correct. •

On remand, this ease, requires us to answer, at the very least, one question of statutory interpretation: whether a Maine *188conviction for the “reckless” causation of an “offensive physical contact” necessarily involves the “use or attempted use of physical force” as required to establish a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. § 922(g)(9). The majority fails to persuasively explain why, ■in all cases, the merely reckless causation of offensive physical contact categorically must involve the “use or attempted use of physical force,” 18 U.S.C. § 921(a)(33)(A), particularly in light of the host of cases strongly suggesting otherwise. As explained herein, these cases hold that the “use” of physical force requires the active or intentional employment of force, which cannot be satisfied by merely reckless conduct.

Confronting this question, we are not acting upon an empty stage; rather, we must start with the backdrop painted by the Supreme Court in Castleman, which is the basis for the instant remand. Indeed, the Castleman Court questioned whether the “merely reckless causation” of even bodily injury — much less offensive physical contact — could constitute the “use” of force, noting that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” because the “use” of force requires a greater degree of intentionality. ‘Castleman, 134 S.Ct. at 1414 & n. 8.

Although the majority opinion correctly observes that those circuit court cases involved different statutes, the operative language is nearly identical and the majority fails to persuasively explain why the result should be different here. All of the analogous eases involved the “use” of “force,” and most interpreted 18 U.S.C. § 16. See id. at 1414 n. 8 (listing cases). Several of these cases6 analyzed § 16(a), which defines a “crime of violence” 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.” 18 U.S.C. § 16(a). That language is materially indistinguishable, as relevant here, from the Lautenberg Amendment’s definition of a “misdemeanor crime of domestic violence” as an offense that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. § 922(g)(9); id. § 921(a)(33)(A). “[Wjhen Congress uses the same language in two statutes having similar purposes,- ... it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” Smith v. City of Jackson, Miss., 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005).7

*189The majority opinion concedes that this case presents a “close” question. Ante, at 177. I agree. Given the Supreme Court and circuit court cases interpreting similar statutes and holding that merely reckless conduct is insufficient to constitute the “use” of physical force, I believe that the rule of lenity also forecloses the defendants’ convictions here. Indeed, it is a “familiar principle” that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’” towards the' accused. Skilling v. United States, 561 U.S. 358, 410, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quoting Cleveland v. United States, 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000)).8 The rule of lenity bars courts from giving the text of a criminal statute “a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, — U.S. -, 134 S.Ct. 881, 891, 187 L.Ed.2d 715 (2014). In my view, by permitting a conviction based on the reckless causation of offensive physical contact, the government and the majority seek to give the “use ... of physical force” a meaning different from that phrase’s ordinary meaning. The ordinary meaning of the “use” of physical force requires the intentional employment of force, and not the merely accidental, negligent, or reckless use of such force. Cf. Leocal v. Ashcroft, 543 U.S. 1, 4, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (giving an ordinary and natural reading to the phrase “ ‘use ... of physical force against the person or property of another,’ ” and holding that this phrase requires “a higher degree of intent than negligent or merely accidental conduct” (quoting 18 U.S.C. § 16(a))); id. (explaining that “‘use’ requires active employment,” and reasoning that “a person would ‘use ... physical force against’ another when pushing him ... [but not] by stumbling and falling into hini”); García v. Gonzales, 455 F.3d 465, 468 (4th Cir.2006) (holding that “the use ... of physical force” requires the intentional employment of physical force).. Moreover, given that the Supreme Court has stated that (1) “the merely reckless causation of bodily injury ... may not be a ‘use’ of force,” and (2) “the Courts of Appeals have almost uniformly held that recklessness is not sufficient” to constitute the “use” of force, Castleman, 134 S.Ct. at 1414 & n. 8, I cannot see how the proper application of the rule of lenity permits affirmance of the defendants’ convictions.

I express no opinion here on whether the “use” of physical force is satisfied by either the reckless causation of bodily injury or the intentional or knowing causation of offensive physical contact. Rather, I confine my inquiry to one subsumed offense under the Maine assault statutes: the reckless causation of offensive physical *190contact. Although the majority states that they fail to see why the distinction between “bodily injury” and “offensive physical contact” “is material to the analysis here,” ante, at 185, I explain herein why that distinction matters. See infra Section 11(B)(1). Namely, even if recklessness were a sufficient mens rea for purposes of bodily injury, a conviction under the Lau-tenberg Amendment nonetheless cannot rest on the reckless causation of offensive physical conduct in Maine.9

The Supreme Court has stated that, under the Lautenberg Amendment, Congress classified as a “ ‘misdemeanor crime of do- ■ mestic violence’ ” “the type of conduct that supports a common-law battery conviction.” Castleman, 134 S.Ct. at 1411. The Supreme Court has further explained that “the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another.” Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis added); see also United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000) (“[T]he common law provided that an assault committed by way of a battery did not require an intent to cause or to threaten an injury as long as the defendant touched another in a deliberately offensive manner without a valid reason to do so.”) (emphasis added); State v. Rembert, 658 A.2d 656, 658 (Me.1995) (stating that “[ujnpermitted and intentional contacts ... [are] actionable as an offensive contact”) (emphasis added); cf. Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(c)(2) n. 32 (2d ed.) (“[Wjith the tort of battery an intention to injure or touch offensively is needed”); Black’s Law Dictionary 182 (10th ed.2014) (defining tortious battery as a “nonconsensual, intentional, and offensive touching of another without lawful justification”) (emphasis added). To trigger a violation of the Lau-tenberg Amendment, therefore, the relevant precedent counsels that the offensive touch must be caused intentionally and not merely recklessly. By contrast, the Maine statutes at issue here permit conviction for recklessly causing an offensive touch.10 Therefore, a conviction under either of the Maine assault statutes implicated here does not categorically establish a violation *191of . the Lautenberg Amendment. Given that the record does not permit a conclusion that the defendants’ Maine convictions rested on a subsumed offense that does constitute a violation of the Lautenberg Amendment, the federal convictions at issue here cannot stand.11

After giving careful consideration to the issues involved, engaging in the necessary statutory interpretation and legal analysis, and applying the relevant precedent, I heed the Supreme Court’s direction and follow the lead of our sister circuits in disagreeing with the majority’s conclusion. Therefore, I respectfully dissent.

I. Legal Background

A. The Statutory Framework

1. The Lautenberg Amendment

The defendants here were charged with violating the Lautenberg Amendment to the Gun Control Act of 1968, now codified at 18 U.S.C. § 922(g)(9) (the “Lautenberg Amendment” or “ § 922(g)(9)”). Under the Lautenberg Amendment, it is unlawful for any person “who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(9). For these purposes, a “misdemeanor crime of domestic violence” is further defined in 18 U.S.C. § 921(a)(33)(A) as an 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 *192child 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. § 921(a)(33)(A) (emphases added).

2. The Relevant Maine Assault Statutes

The defendants argue that the relevant Maine assault statutes do not “ha[ve], as an element, the use or attempted use of physical force.” See id. Under Maine law, a defendant is guilty of “domestic violence assault” if (1) the defendant violates the Maine simple assault provision, and (2) “the victim is a family or household member.” See Me.Rev.Stat. tit. 17-A, § 207-A(l)(A).

Turning to the simple assault provision in the Maine Criminal Code, a person is guilty of “assault” if “[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” See § 207(1)(A). Thus, there are six different, divisible permutations of the Maine simple assault statute, each of which can form the basis for a section 207 assault conviction. United States v. Carter, 752 F.3d 8, 17-18 (1st Cir.2014) (“The Maine general-purpose assault statute is divisible into six permutations of subsumed offenses, based on the combination of one element from each of two categories: (1) mens rea (‘intentionally, knowingly or recklessly’), and (2) actus reus (‘causes bodily injury or offensive physical contact to another person’).” (quoting § 207(1)(A))). These six subsumed offenses are illustrated in the following chart:

The six variants of the Maine simple assault statute:

Maine simple assault Actus Reus statute,

Me.Rev.Stat. tit. 17-A, . . .causes bodily injury. . . .causes offensive physical § 207(1)(A) contact.

Intentionally 1. Intentionally causes bodily in- 4. Intentionally causes . . . jury. offensive physical contact

Mens Rea Knowingly 2. Knowingly causes bodily 5. Knowingly causes offensive . . . injury. physical contact.

Recklessly 3. Recklessly causes bodily • 6. Recklessly causes offensive ... injury. physical contact.

In Maine state court, Armstrong was convicted of Maine domestic-violence assault under section 207-A, and Voisine was convicted of Maine simple assault under section 207.12 These prior convictions served as the predicate offenses for the defendants’ § 922(g)(9) charges, which are the subject of the instant appeal. A simple assault statute lacking a domestic-relationship element (such as Voisine’s prior offense of conviction in Maine) can nonetheless serve as the predicate offense for a misdemeanor crime of domestic violence, so long as the domestic-relationship ele*193ment is proved in the subsequent federal prosecution. See United States v. Hayes, 555 U.S. 415, 418, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (holding “that the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense”).

B. The Categorical and Modified Categorical Approaches

Given the foregoing statutory framework, we must analyze whether the elements of the Maine assault statute necessarily fulfill the requirements of the Lautenberg Amendment. In cases such as this — where a court must decide whether a prior conviction for an earlier offense (like assault) satisfies one of the elements of the offense in a subsequent prosecution (here, for example, whether the earlier offense “has, as an element, the use ... of physical force,” 18 U.S.C. § 921(a)(33)(A)) — the court determines whether it is appropriate to apply the categorical approach or the modified categorical approach.

1.The Categorical Approach

In Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court described the categorical approach, under which courts “look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” See also United States v. Dávila-Félix, 667 F.3d 47, 56 (1st Cir.2011) (same). If the “statutory definition” of the prior offense necessarily meets the requirements of the subsequent offense at issue, then the court can determine that a conviction for the prior offense categorically constitutes a valid predicate offense for purposes of the later prosecution. See Castleman, 134 S.Ct. at 1414.

2. The Modified Categorical Approach

Some statutes, like the Maine assault statutes at issue here, are “divisible”: they “set[] out one or more elements of the offense in the alternative.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). For these statutes, some permutations or variants of the subsumed offenses may categorically meet the requirements of the subsequent offense, whereas others may not. Accordingly, for these divisible statutes, courts may apply the' “modified categorical approach” to determine which variant or subsumed offense formed the basis for the prior conviction, and thus whether that prior conviction can serve as a valid predicate offense for the subsequent prosecution. See Castleman, 134 S.Ct. at 1414. Under this approach, a court may “consult[ ] the trial record — including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms” — in order to “determine which statutory phrase was the basis for the conviction” under such a divisible, statute. Johnson, 559 U.S. at 144, 130 S.Ct. 1265. These documents are often called “Shepard documents,” after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion). See, e.g., Carter, 752 F.3d at 19-20 & 19 n. 12.

3. Application

Under established precedent not called into doubt by Castleman and not challenged here, certain subsumed offenses under the Maine assault statutes (such as the intentional or knowing causation of bodily injury) are unequivocally valid predicate

*194offenses for the Lautenberg Amendment. See Castleman, 134 S.Ct. at 1415 (“It is impossible to cause bodily injury without applying force in the common-law sense,” and “the knowing or intentional application of force is a ‘use’ of force.”). If the Shepard documents showed that the defendants’ prior assault convictions were for those particular subsumed offenses, for example, then we would be able to apply the modified categorical approach and affirm the defendants’ Lautenberg Amendment convictions without reaching the recklessness issue. See Carter, 752 F.3d at 18 n. 11 (reasoning that under the modified categorical approach, if the Shepard documents showed that the defendant’s prior Maine conviction was for intentional or knowing conduct, then the court could affirm his conviction under the Lautenberg Amendment). The parties agree, however, that the Shepard documents for Armstrong’s and Voisine’s underlying Maine convictions are inconclusive and do not reveal which variants of the Maine assault statutes served as the bases for their convictions. Therefore, the modified categorical approach cannot resolve this appeal.

Rather, we must apply the categorical approach to determine whether the statutory definitions of the Maine assault provisions necessarily include the “use or attempted use of physical force.” See 18 U.S.C.. §§ 921(a)(33)(A), 922(g)(9); see also Castleman, 134 S.Ct. at 1414. Under the categorical approach, if any one of the six variants of the Maine assault statute does not necessarily constitute the “use ... of physical force,” then the defendants’ convictions must be reversed. Put differently, to affirm the defendants’ convictions under the categorical approach, all of the subsumed offenses under the Maine statute must have the “use or attempted use of physical force” as an element. 18 U.S.C. §§ 921 (a)(33)(A); see also United States v. Holloway, 630 F.3d 252, 257 (1st Cir.2011) (stating that under the categorical approach, “the [prior] conviction may only serve as a predicate offense if each of the possible offenses of conviction would qualify” as individually satisfying the offense in the subsequent prosecution (citing Shepard, 544 U.S. at 26, 125 S.Ct. 1254)). The defendants focus their argument on the sixth and least severe subsumed offense: the “reckless” causation of “offensive physical contact.” Therefore, we must apply the governing precedent to decide whether this statutory definition necessarily involves the “use ... of physical force.”

C. The Supreme Court’s Decisions in Leocal and Johnson

The Supreme Court’s opinions in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), provided foundational reasoning for subsequent cases relevant to this appeal. In both of these cases, the Supreme Court engaged in statutory interpretation to determine whether the offenses underlying prior state convictions had, as an element, the “use” of physical force as required for purposes of a subsequent federal proceeding.

1. Leocal

In Leocal, the Supreme Court examined a similar question to that facing us today, regarding parallel language in the statutory definition of a “crime of violence” under 18 U.S.C. § 16(a). Under that statute, a “crime of violence” includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (emphasis added). The petitioner in Leocal had previously been convicted in Florida state court for driving under the influence of alcohol (DUI) and causing serious bodily injury. Leocal, 543 *195U.S. at 3, 125 S.Ct. 377. The Supreme Court held that the petitioner’s DUI conviction was not a crime of violence under 18 U.S.C. § 16. Id. at 4, 125 S.Ct. 377. In so holding, the Court explained that “ ‘use’ requires active employment,” reasoning that “a person would ‘use ... physical force against’ another when pushing him ... [but not] by stumbling and falling into him.” Id. Giving the operative phrase- in 18 U.S.C. § 16(a) its ordinary and natural reading, in context, the Leocal Court held that the “ ‘use ... of physical force against the person or property of another’ ” requires “a higher degree of intent than negligent or merely accidental conduct.” Id. (quoting 18 U.S.C. § 16(a)). The Court also interpreted parallel language in 18 U.S.C. § 16(b), giving that language “an identical construction” and “requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense.” Id. at 11,125 S.Ct. 377.

Additionally, the Court considered the fact that it was “ultimately ... determining the meaning of the term ‘crime of violence.’ ” Id. It reasoned that “[t]he ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person ... suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.” Id. Therefore, the Court concluded that “[ijnterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Id. Importantly for the instant case, the Leocal Court held only that negligent and accidental conduct did not constitute the “use” of force and thus a crime of violence under 18 U.S.C. § 16; the Court did not reach the question whether reckless conduct would be sufficient. Id. at 13, 125 S.Ct. 377 (“This case does not present us with the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16.”).

2. Johnson

In Johnson, the Supreme Court considered a related question: “whether the Florida felony offense of battery by ‘[a]ctually and intentionally touching]’ another person, Fla. Stat. § 784.03(l)(a), (2) (2003), ‘has as an element the use ... of physical force against the person of another,’ 18 U.S.C. § 924(e)(2)(B)(I), and thus constitutes a ‘violent felony’ under the Armed Career Criminal Act, § 924(e)(1).” Johnson, 559 U.S. at 135,130 S.Ct. 1265 (alterations in original). The Court observed that “the element of ‘actually and intentionally touching’ under Florida’s battery law is satisfied by any intentional physical contact, ‘no matter how slight.’ ” Id. at 138, 130 S.Ct. 1265 (quoting State v. Hearns, 961 So.2d 211, 218 (Fla.2007)). Even “[t]he most ‘nominal contact,’ such as a ‘ta[p] ... on the shoulder without consent,’ ” is sufficient to constitute a violation of the Florida law. Id. (second and third alterations in original) (quoting Hearns, 961 So.2d at 219).

In determining the definition of “physical force” under the Armed Career Criminal Act (“ACCA”), the Court sought to give the phrase “its ordinary meaning” while keeping in mind the context of its inquiry: defining the statutory category of violent felonies. Id. at 138-40, 130 S.Ct. 1265. In that context, the Court thought “it clear that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. The Johnson Court explicitly limited its holding to the ACCA, asserting that its decision would not extend to the *196Lautenberg Amendment. See id. at 143-44, 130 S.Ct. 1265 (“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. The issue is not before us, so we do not decide it.”).

D. Pve-Castleman First Circuit Precedent: Nason, Booker, Armstrong I, and Voisine I

Prior to the Supreme Court’s decision in Castleman, the defendants’ arguments were squarely foreclosed by First Circuit precedent; it is this precedent that the Supreme Court has instructed us to reconsider.

In United States v. Nason, 269 F.3d 10 (1st Cir.2001), which also considered the interplay between the Maine simple assault statute and the Lautenberg Amendment, we held that the actus reus of “offensive physical contact” necessarily involved the “use or attempted use of physical force,” id. at 11-12,- 21. Synthesizing the definitions of “physical force” from Black’s Law Dictionary and other dictionaries, we determined that “physical force may be characterized as power, violence, or pressure directed against another person’s body.” Id. at 16. We thus held that § 922(g)(9) does not require that the predicate offense involve “bodily injury,” but rather can be satisfied by “any physical force” — including offensive physical contact — “regardless of whether that force resulted in bodily injury or risk of harm.” Id. at 16-18. Therefore, Nason established that either actus reus prong of the Maine assault statute-bodily injury or offensive physical contact— could serve as a valid predicate conviction for purposes of § 922(g)(9). Id. at 21 (“[B]oth [actus reus] variants of assault regulated under Maine’s general-purpose assault statute necessarily involve the use of physical force.”).

Whereas Nason focused on the actus reus variants of the Maine assault statute for purposes of the Lautenberg Amendment, we later focused on the mens rea variants in United States v. Booker, 644 F.3d 12 (1st Cir.2011). In Booker, we rejected the argument that only an intentional offense could constitute a misdemeanor crime of domestic violence under § 922(g)(9). Id. at 13-14. The appellants in Booker sought to rely on the Supreme Court’s decisions in Leocal and Johnson, analogizing to the definition of “crime of violence” under 18 U.S.C. § 16 and the definition of “violent felony” under the ACCA, 18 U.S.C. § 924(e). Id. at 18-19. We held that those other statutes were not sufficiently analogous to dictate the result in Booker, reasoning that, for example, “[wjhereas 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.” Id. at 21. We thus turned to the “plain, unambiguous language of § 922(g)(9),” finding that “the statutory definition of ‘misdemeanor crime of domestic violence’ does not prescribe an intentional mens rea.” Id. (quoting 18 U.S.C. § 922(g)(9)). Therefore, we held “that an offense with a mens rea of recklessness may qualify as a ‘misdemeanor crime of domestic violence’ under § 922(g)(9).” Id. (quoting 18 U.S.C. § 922(g)(9)).

On the initial appeal in this case, United States v. Armstrong, 706 F.3d 1, 5 (1st Cir.2013) (“Armstrong I”), vacated, — U.S. -, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), we considered Armstrong’s arguments that the Lautenberg Amendment’s prohibition on gun ownership does not ap*197ply to non-violent offensive physical contact. We found the defendant’s argument on this issue to be squarely foreclosed by our prior decisions in Nason and Booker. Id. at 2 (citing Booker, 644 F.3d 12; Nason, 269 F.3d 10). On that basis, we rejected Armstrong’s statutory interpretation arguments and affirmed the decision of the district court. Id. at 2-6, 8. That same day, we issued an opinion in United States v. Voisine, 495 Fed.Appx. 101 (1st Cir.2013) (per curiam) (“Voisine I”), vacated sub nom., Armstrong v. United States, — U.S. -, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014). In a per curiam opinion, we stated that Voisine had raised “the exact same arguments” as those raised in Armstrong I.