Today our firm filed reply brief for petitioner in the case of Delroy Fischerv. United States of America in the United States Supreme Court. In this case, petitioner Fischer is asking the Supreme Court to resolve a circuit split over the question whether the use of force element of the predicate misdemeanor in a section 922(g)(9) prosecution is determined by factual findings found in the state court record, or by the text of the relevant misdemeanor statute.
Fischer was indicted for violation of 18 U.S.C. section 922(g)(9). Prior to trial, Fischer moved to dismiss the indictment on the ground that the predicate misdemeanor under which he was convicted — Nebraska Revised Statute (“Neb. Rev. Stat.”) section 28-310(1) — was not a misdemeanor crime of domestic violence (“MCDV”), as defined in 18 U.S.C. section 921(a)(33)(A)(ii). Fischer reserved his right to appeal the denial of his motion to dismiss.
Our reply brief makes the following arguments. First, the government admits that the court below relied solely on the factual record to determine that the state statute has the use of physical force as an element. Next, the Fischer decision is not consistent with the “modified categorical approach.” Further, the government would create a federal standard to determine the elements of the state statute. The government has also erroneously assumed that “physical force” as stated in the federal statute includes “subtle and indirect force,” and the government erroneously shifts to Fischer the burden to prove that use of physical force is not an element of the state statute. Finally, the government has provided additional reasons to grant Fischer’s petition.
On November 21, 2011 our firm filed the petition for writ of certiorari in this case.