Divisibility of Vermont Domestic Assault (§ 1042) and Its Qualification as a “Misdemeanor Crime of Domestic Violence” Under 18 U.S.C. §§ 921(a)(33)(A) & 922(g)(9)

United States v. Ross, No. 25-210-cr (2d Cir. May 29, 2026)

I. Introduction

Parties and posture. Defendant-Appellant Grace Ross appealed from a federal firearms conviction after conditionally pleading guilty in the District of Vermont (Sessions, J.) to possessing a firearm following a prior conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

Background facts. Ross’s predicate offense was a 2003 Vermont domestic assault conviction under 13 V.S.A. § 1042 for assaulting her boyfriend. In 2021, police recovered a 9mm pistol from her car during a traffic stop; federal prosecutors then charged her under § 922(g)(9).

Key issue. The appeal turned on a federal definitional requirement: whether Ross’s Vermont conviction “has, as an element, the use or attempted use of physical force” under 18 U.S.C. § 921(a)(33)(A)(ii). The case required the court to decide (1) whether the Vermont statute is divisible (thus permitting a modified categorical inquiry) and (2) whether the identified divisible offense satisfies the federal “use of force” element.

II. Summary of the Opinion

The Second Circuit affirmed. It held:

• Divisibility: 13 V.S.A. § 1042 is divisible into three offenses: (1) attempting to cause bodily injury; (2) willfully or recklessly causing bodily injury; and (3) willfully causing fear of imminent serious bodily injury.
• Modified categorical identification: Ross’s record of conviction (the information and plea colloquy) showed she was convicted of willfully or recklessly causing bodily injury.
• Force element satisfied: Under United States v. Castleman and Voisine v. United States, intentional/knowing and reckless causation of bodily injury necessarily involves “the use of physical force” for § 921(a)(33)(A)(ii). Therefore, Ross’s predicate conviction qualifies as a misdemeanor crime of domestic violence.

III. Analysis

A. Precedents Cited (and How They Drove the Result)

1. The categorical framework and divisibility

• Mathis v. United States, 579 U.S. 500 (2016): The opinion anchors its methodology in Mathis’s central distinction between (i) statutes listing alternative elements (divisible; multiple crimes) and (ii) statutes listing alternative means (indivisible; one crime with different factual ways of commission). This provided the test the court applied to § 1042’s “or”-separated phrasing and to the attempt/completed split.
• Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017): Used as Second Circuit gloss on Mathis—particularly that divisibility turns on whether the jury must agree on the alternative and that courts start with statutory text and consult state decisions for elements-vs-means signals.
• Mellouli v. Lynch, 575 U.S. 798 (2015): Cited for the categorical presumption that, for an indivisible statute, a court assumes the conviction rested on the least of the acts criminalized—illustrating why the divisibility determination is outcome-determinative when a statute reaches both forceful and potentially non-forceful conduct.
• United States v. Taylor, 596 U.S. 845 (2022): Cited both for the categorical-approach framing (“always requires the government to prove…”) and for the significance of the attempt/completed distinction in federal “crime of violence” doctrine. Although Taylor is a § 924(c) case, the opinion leverages its reasoning to emphasize why attempt variants can be separate elements/crimes.

2. Second Circuit divisibility indicators and attempt/completed separation

• Colotti v. United States, 71 F.4th 102 (2d Cir. 2023): Supports the proposition that disjunctive “or” phrasing is “indicative” (though not dispositive) of divisibility and provides an example of treating completed offenses as divisible from attempt or conspiracy in categorical analysis.
• United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc), and Flores v. Holder, 779 F.3d 159 (2d Cir. 2015): Both illustrate the Circuit’s willingness to find divisibility where a statute lists alternative elements separated by “or,” bolstering the textual inference drawn from § 1042’s structure.
• United States v. Ullah, 173 F.4th 399 (2d Cir. 2026), Pannell v. United States, 115 F.4th 154 (2d Cir. 2024), and (again) Colotti v. United States: These cases supply direct Circuit authority that attempt and completed versions can be divisible crimes even without separate statutory subsections—supporting the panel’s move to treat “attempts to cause” and “causes” as different § 1042 offenses.
• United States v. McCoy, 58 F.4th 72 (2d Cir. 2023) (per curiam): Invoked to underscore doctrinal consequences of the attempt/completed distinction (attempted Hobbs Act robbery excluded after Taylor, while completed robbery remains). The opinion uses this as a practical confirmation that attempt and completed variants are “necessarily divisible” in categorical terms.

3. Vermont state-law sources on elements and mental states

• State v. Phillips, 219 Vt. 111, 315 A.3d 959 (2024): A key state-law analogue. The Vermont Supreme Court read the “plain language” of a related statute (13 V.S.A. § 1043(a)(2)) as creating three offenses separated by “or” (use, attempt, or being armed and threatening). The Second Circuit treated this as “powerful support” that Vermont courts parse similarly structured domestic-assault statutes into separate crimes/elements.
• State v. Fonseca-Cintron, 213 Vt. 11, 238 A.3d 594 (2019): Ross’s principal counterweight. While it contains a statement that “[d]omestic assault under § 1042 is clearly one offense,” the Second Circuit limited that language as context-bound (double jeopardy/multiplicity) and not a definitive “elements vs. means” holding for categorical purposes.
• Blockburger v. United States, 284 U.S. 299 (1932): The Vermont court used the same-elements test in Fonseca-Cintron. The Second Circuit noted that the Blockburger analysis was consistent with separateness among statutes, but did not treat it as controlling on intra-statute divisibility.
• State v. Abel, 2019 VT 22, ¶ 10, 210 Vt. 1, 210 A.3d 439 (2019): Cited through Fonseca-Cintron for the “multiplicity doctrine” (no multiple punishments for the same act under the same offense). The Second Circuit used this to explain why “one offense” language in a double jeopardy context does not resolve divisibility for federal categorical analysis.
• State v. McGee, 163 Vt. 162, 655 A.2d 729 (1995): Supplies Vermont’s attempt elements (intent + overt act), supporting the court’s conclusion that “attempt[] to cause” is proof-distinct from “caus[ing]” bodily injury and therefore elementally separable.
• In re Chase, 186 Vt. 355, 987 A.2d 924 (2009), State v. Bean, 202 Vt. 361, 149 A.3d 487 (2016), and State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995): These define Vermont mental states (“willful” emphasizing intentionality; “recklessness” as conscious disregard of a substantial risk). They matter because § 921(a)(33)(A)(ii) analysis is sensitive to mens rea after the Supreme Court’s domestic-violence force cases.

4. Supreme Court domestic-violence force decisions (dispositive on the “force” element)

• United States v. Castleman, 572 U.S. 157 (2014): The court relied on Castleman for the principle that knowing or intentional causation of bodily injury necessarily involves the “use of physical force” for § 921(a)(33)(A). This is the doctrinal bridge from “bodily injury” to “physical force.”
• Voisine v. United States, 579 U.S. 686 (2016): Critical to this case because Ross’s offense can be committed “recklessly.” Voisine held that reckless assaults—conscious disregard of a substantial risk of causing harm—still involve the “use” of force for § 921(a)(33)(A)(ii). That foreclosed Ross’s argument once the court identified her offense as “wilfully or recklessly caus[ing] bodily injury.”

B. Legal Reasoning

1. Step One: Is 13 V.S.A. § 1042 divisible?

The court treated divisibility as the gatekeeper question. If § 1042 were indivisible, the categorical approach would require evaluating the “least acts criminalized,” potentially allowing Ross to argue that some variants (e.g., fear-inducement) might not require physical force. Instead, the panel found divisibility based on:

• Textual structure: § 1042 uses repeated “or” phrasing that naturally reads as alternatives setting out separate crimes (attempt bodily injury; cause bodily injury; cause fear of imminent serious bodily injury).
• Different mental states and results: The “fear” clause requires willfulness and a fear result; the “bodily injury” clause permits willful or reckless causation and requires actual injury. These are not merely different fact patterns, but different proof obligations.
• Attempt vs completed offense: Using Vermont attempt law (State v. McGee) and Second Circuit precedent on attempt/completed divisibility (United States v. Ullah, Pannell v. United States), the court treated attempt as a separate element set (intent + overt act) from completed causation (willful/reckless + injury).
• State-law corroboration: State v. Phillips provided an in-state model of parsing similarly disjunctive domestic-assault language into separate offenses.

The court rejected Ross’s reliance on State v. Fonseca-Cintron by confining its “one offense” statement to its double jeopardy/multiplicity context (State v. Abel)—a setting that addresses multiple punishments for the same act, not whether statutory alternatives are elements requiring jury unanimity.

2. Step Two: Which § 1042 offense was Ross convicted of?

Because the statute is divisible, the court applied the modified categorical approach and consulted the limited “record of conviction” materials approved by Mathis v. United States (e.g., charging document, plea colloquy). Both the information and plea colloquy specified only “wilfully or recklessly caus[ing] bodily injury to a family or household member”. The panel therefore treated that variant as the predicate offense.

3. Step Three: Does that offense require “the use or attempted use of physical force”?

The panel held yes, straightforwardly applying United States v. Castleman (bodily injury caused intentionally/knowingly necessarily involves force) and Voisine v. United States (the same remains true for reckless causation). Since Ross’s offense includes willful or reckless causation of bodily injury as an element, it necessarily satisfies § 921(a)(33)(A)(ii).

C. Impact

• Federal firearms prosecutions in Vermont: The decision materially strengthens the government’s ability to use § 1042 bodily-injury convictions as qualifying predicates under § 922(g)(9), by foreclosing broad categorical challenges premised on § 1042’s breadth.
• Divisibility as the decisive battleground: The opinion signals that, where a domestic-violence statute combines attempt, injury-causation, and fear/threat variants, litigants should expect courts to scrutinize mental states and result elements to find divisibility—then rely on conviction records to identify the operative variant.
• Limited reach to fear-based variants: The court did not decide whether § 1042’s “fear imminent serious bodily injury” offense would independently satisfy § 921(a)(33)(A)(ii). Future litigation may focus on that prong (and on record ambiguity in older state cases).
• Doctrinal harmonization: By tying attempt/completed separability to the Second Circuit’s post-Taylor landscape (United States v. McCoy), the opinion reinforces a broader trend: attempt and completed offenses are frequently treated as distinct “crimes” for categorical purposes even when housed in a single statutory sentence.

IV. Complex Concepts Simplified

• Categorical approach: A federal method that looks only at the statute of conviction’s elements, not what the defendant actually did. If the statute can be violated in a non-qualifying way, the conviction may not count (unless the statute is divisible).
• Divisible vs. indivisible statutes:
  • Divisible: The statute lists alternative elements (separate crimes). Courts can consult limited conviction records to see which alternative formed the basis of conviction.
  • Indivisible: The statute lists alternative means (different ways to commit one crime). Courts must assume the least serious conduct covered.
• Modified categorical approach: Used only for divisible statutes; it permits consulting a narrow set of judicial documents (e.g., charging instrument and plea colloquy) to identify which statutory alternative was convicted—then applies the categorical comparison to that alternative.
• “Use of physical force” in the domestic-violence context: Under United States v. Castleman and Voisine v. United States, causing bodily injury—intentionally, knowingly, or recklessly—counts as using force for § 921(a)(33)(A)(ii), even if the force is indirect.
• Multiplicity (double jeopardy) vs. divisibility: Saying a statute is “one offense” for purposes of not punishing the same act twice (multiplicity) does not necessarily answer whether the statute contains alternative elements (divisibility) for categorical analysis.

V. Conclusion

United States v. Ross establishes a clear Second Circuit rule for Vermont domestic assault: 13 V.S.A. § 1042 is divisible into three offenses, and a conviction for willfully or recklessly causing bodily injury qualifies as a “misdemeanor crime of domestic violence” because, under United States v. Castleman and Voisine v. United States, such bodily-injury offenses necessarily involve the use of physical force. The decision’s broader significance is methodological: it demonstrates how textual structure, mental-state differences, and state-law analogues can convert an apparently broad domestic-violence statute into divisible components, making the conviction record—not case facts—the decisive evidence in federal predicate-offense litigation.