United States of America v. Donte Swinton

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 20, 2022
Decided September 21, 2022
Before
FRANK H. EASTERBROOK , Circuit Judge
D AVID F. H AMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-3380
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D ONTE SWINTON,
Defendant-Appellant.
Appeal from the United States
District Court for the Southern
District of Indiana, Indianapolis
Division.
No. 1:20-cr-00314-JMS-TAB
Jane Magnus-Stinson, Judge.
O R D E R
Donte Swinton pointed an assault rifle at a police officer and soon found himself
in custody. He was prosecuted under 18 U.S.C. §922(g)(9) on the theory that his convic-
tion of a state domestic-battery crime prohibits him from possessing firearms. The dis-
trict court accepted a conditional plea of guilty and sentenced him to 46 months’ impris-
onment plus 2 years’ supervised release.
The condition in Swinton’s plea allows him to argue that the state offense is not a
misdemeanor crime of domestic violence for the purpose of §922(g)(9). The state statute,
Ind. Code §35-42-2-1.3(a)(2), covers any person who knowingly or intentionally “in a
rude, insolent, or angry manner places any bodily fluid or waste on a family or house-
hold member.” Swinton observes that this statute penalizes spitting during a domestic

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No. 21-3380 Page 2
argument and contends that spitting is not a “violent” act as the phrase “violent felony”
in 18 U.S.C. §924(e)(1) was understood in Johnson v. United States, 559 U.S. 133 (2010).
Johnson says that, to be “violent”, a crime must entail “force capable of causing physical
pain or injury” (559 U.S. at 140). Spitting causes psychological rather than physical in-
jury, and Swinton contends that this state law does not satisfy Johnson’s standard.
His problem is that §922(g)(9) and §924(e)(1) are different statutes, which the Su-
preme Court has interpreted differently. United States v. Castleman, 572 U.S. 157 (2014),
holds that a state law establishes a “misdemeanor crime of domestic violence” for the
purpose of §922(g)(9) if it forbids an unconsented touching, even without direct applica-
tion of physical force. A dissenting opinion in Castleman argued that §922(g)(9) should
be treated just like §924(e)(1); the majority rejected that position. Swinton relies on the
dissenting opinion in Castleman, but we must follow the majority’s decision.
Swinton tries to distinguish Castleman on its facts, but the Justices did not issue
an opinion good for one set of facts only. They established the meaning of a phrase
(“misdemeanor crime of domestic violence”) in a federal statute. The meaning given to
that phrase in Castleman leads inexorably to the conclusion that Ind. Code §35-42-2-
1.3(a)(2) establishes a misdemeanor crime of domestic violence.
This conclusion makes it unnecessary to discuss any of the other issues debated
in the parties’ briefs.
A FFIRMED

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