United States v. Fred Nobriga

Fred Nobriga appeals the district court’s denial of his motion to dismiss the indictment charging him with violating 18 U.S.C. § 922(g)(9) by possessing a firearm after having been previously convicted of a “misdemeanor crime of domestic violence,” as defined by 18 U.S.C. § 921 (a)(33)(A)(ii). Nobriga also argues that his sentence violates the Sixth Amendment in light of United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). We reverse the district court’s denial of Nobri-ga’s motion to dismiss and therefore do not reach Nobriga’s appeal of his sentence.

I

Nobriga was indicted in 2003 by a federal grand jury in Hawaii for being a person previously convicted of a “misdemeanor crime of domestic violence” in possession of a firearm. Section 921(a)(33)(A)(ii) defines that term as any misdemeanor that:

The predicate offense at issue was No-briga’s conviction for Abuse of a Family or Household Member (AFHM), in violation of Haw. Rev. Stat. § 709-906 (1). Nobriga had pleaded no contest to AFHM in a Hawaii state court, and the court found Nobriga guilty “as charged.”

Nobriga moved to dismiss the federal indictment, claiming that his underlying AFHM conviction was…