FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 23-2409
                                                  D.C. No.
               Plaintiff - Appellee,
                                               9:21-cr-00029-
                                                   DLC-1
    v.

OPINION

MICHAEL BLAKE DEFRANCE,

               Defendant - Appellant.

         Appeal from the United States District Court
                  for the District of Montana
         Dana L. Christensen, District Judge, Presiding

          Argued and Submitted September 12, 2024
                    Seattle, Washington

                   Filed December 30, 2024

    Before: Morgan B. Christen and Jennifer Sung, Circuit
         Judges, and Jed S. Rakoff, District Judge. *

                  Opinion by Judge Christen;
                Concurrence by Judge Christen;
                 Concurrence by Judge Rakoff

*
 The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2                        USA V. DEFRANCE


                          SUMMARY **


                          Criminal Law

    The panel reversed Michael Blake DeFrance’s
conviction for violating 

(g)(9), which
forbids the possession of firearms by anyone convicted of a
“misdemeanor crime of domestic violence”; vacated his
sentence; and remanded.
    The predicate offense for DeFrance’s § 922(g)(9)
indictment was his prior conviction for assaulting his
girlfriend in violation of Montana Code Annotated section
45-5-206(1)(a), a misdemeanor.
    Applying the categorical approach, the panel held that
because section 45-206(1)(a) can be violated by inflicting
emotional distress rather than physical injury, it does not
“ha[ve], as an element, the use or attempted use of physical
force,” 

(a)(3)(A)(ii). Accordingly, a
conviction for violating section 45-206(1)(a) does not
quality as a “misdemeanor crime of violence” under
§ 922(g)(9).
  The panel addressed other issues in a concurrently filed
memorandum disposition.
   Concurring, Judge Christen wrote that there is little
doubt that when Congress enacted § 922(g)(9), it intended to
keep firearms out of the hands of misdemeanor domestic



**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       USA V. DEFRANCE                         3


abusers, but that the result in this case is dictated by faithful
application of controlling precedent.
    Concurring, District Judge Rakoff wrote that he
continues to be troubled by the so-called “categorical
approach,” whose counter-intuitive results Congress never
intended. He joined the growing number of lower-court
judges and Supreme Court justices who have called into
question its propriety.



                         COUNSEL

Tim A. Tatarka (argued) and Timothy J. Racicot, Assistant
United States Attorneys, United States Department of
Justice, Office of the United States Attorney, Billings,
Montana; Jennifer S. Clark, Assistant United States
Attorney; Jesse A. Laslovich, United States Attorney;
United States Department of Justice, Office of the United
States Attorney, Missoula, Montana; for Plaintiff-Appellee.
Michael Donahoe (argued), Assistant Federal Public
Defender; Rachel Julagay, Federal Defender, District of
Montana; Federal Defenders of Montana, Helena, Montana;
for Defendant-Appellant.
4                          USA V. DEFRANCE

OPINION

CHRISTEN, Circuit Judge:

    We address whether a conviction for partner or family
member assault (PFMA) under Montana Code Annotated
section 45-5-206(1)(a) qualifies as a “misdemeanor crime of
domestic violence” for purposes of 

(g)(9).
Because Montana’s PFMA statute can be violated by
inflicting emotional rather than physical injury, we conclude
that it does not “ha[ve], as an element, the use or attempted
use of physical force.” 

(a)(33)(A)(ii).
Accordingly, a conviction for violating this statute does not
qualify as a “misdemeanor crime of domestic violence,” and
Appellant’s § 922(g)(9) conviction must be reversed.
                                     I.
    In 2013, Appellant Michael Blake DeFrance pleaded
guilty to assaulting Jermain Charlo, his girlfriend, in
violation of Montana Code Annotated section 45-5-
206(1)(a), a misdemeanor. 1 Under section 45-5-206(1)(a),
“[a] person commits the offense of partner or family member
assault if the person . . . purposely or knowingly causes
bodily injury to a partner or family member.” 

(1)(a). “‘Bodily injury’ means physical
pain, illness, or an impairment of physical condition and

1
 The district court concluded that section 45-5-206 is divisible and that
DeFrance was convicted under section 45-5-206(1)(a). See United
States v. DeFrance, 

, 1095 n.2 (D. Mont. 2021).
Neither party challenges that conclusion on appeal or contends that
section 45-5-206(1)(a) is divisible in any respect relevant to our analysis.
We therefore do not apply the modified categorical approach to
DeFrance’s section 45-5-206(1)(a) conviction. See Descamps v. United
States, 

 (2013).
                             USA V. DEFRANCE                          5


includes mental illness or impairment.” 

 § 45-2-101(5).
The language of these two provisions is the same today as it
was in 2013, when DeFrance assaulted Charlo.
    In 2018, law enforcement officers found DeFrance in
possession of three firearms. A federal grand jury
subsequently indicted DeFrance on one count of violating 

(g)(9), which forbids the possession of firearms
by anyone convicted of a “misdemeanor crime of domestic
violence.” 

(g)(9). 2 Section 921(a)(33)(A),
in turn, defines “misdemeanor crime of domestic violence”
as “an offense that . . . has, as an element, the use or
attempted use of physical force.” 

 § 921(a)(33)(A). 3

2
    Section 922(g) states:
           It shall be unlawful for any person . . . (9) who has
           been convicted in any court of a misdemeanor crime
           of domestic violence, to ship or transport in interstate
           or foreign commerce, or possess in or affecting
           commerce, any firearm or ammunition; or to receive
           any firearm or ammunition which has been shipped or
           transported in interstate or foreign commerce.

(g).
3
    Section 921(a)(33)(A) states:
           Except as provided in subparagraphs (B) and (C), the
           term “misdemeanor crime of domestic violence”
           means an offense that—
           (i) is a misdemeanor under Federal, State, Tribal, or
           local 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
6                         USA V. DEFRANCE


    DeFrance moved to dismiss the indictment, arguing that
section 45-5-206(1)(a) “can be committed without the use or
attempted use of physical force” and, therefore, a conviction
under this statute does not qualify as a “misdemeanor crime
of domestic violence” for purposes of § 922(g)(9). The
district court denied the motion. See DeFrance, 577 F. Supp.
3d at 1093–98; see also United States v. DeFrance, 

, at *9 (D. Mont. July 13, 2023) (denying
DeFrance’s motion for a new trial). Following his
conviction, DeFrance timely appealed. We have jurisdiction
pursuant to 

, and we review de novo
DeFrance’s argument that “the use or attempted use of
physical force” is not an element of section 45-5-206(1)(a).
See United States v. Campbell, 

 (9th Cir.
1994) (“We review legal questions de novo.”).
                                  II.
    To determine whether a conviction under section 45-5-
206(1)(a) qualifies as a “misdemeanor crime of domestic
violence” for purposes of §§ 921(a)(33)(A) and 922(g)(9),
we apply the categorical approach. See United States v.
Castleman, 

 (2014) (citing Taylor v.

        whom the victim shares a child in common, by a
        person who is cohabiting with or has cohabited with
        the victim as a spouse, parent, or guardian, by a person
        similarly situated to a spouse, parent, or guardian of
        the victim, or by a person who has a current or recent
        former dating relationship with the victim.

(a)(33)(A). Congress added “a person who has a current
or recent former dating relationship with the victim” in 2022, after
DeFrance’s 2013 domestic violence conviction, see Bipartisan Safer
Communities Act, 

, 

, 1332
(2022), but that change is not material to the question at issue in this
opinion.
                     USA V. DEFRANCE                      7


United States, 

 (1990), and Shepard v. United
States, 

 (2005)). “This requires, for better or
worse, that we ignore what actually occurred during the
defendant’s prior [offense]; instead, we consider only
whether the prior [offense’s] elements cover conduct that
‘sweeps more broadly than the conduct covered by
§ [921(a)(33)(A)’s misdemeanor crime of domestic
violence] definition[].’” United States v. Castro, 

 (9th Cir. 2023) (quoting United States v. Prigan, 

, 1119 (9th Cir. 2021)). Specifically, we consider
whether DeFrance’s conviction “necessarily ‘ha[d], as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon.’” Castleman, 

 (quoting 

(a)(33)(A)).
    While no Montana court has squarely addressed whether
section 45-5-206(1)(a) requires the use of physical force,
both Ninth Circuit case law construing this statute and
Montana Supreme Court decisions construing related assault
statutes support DeFrance’s contention that section 45-5-
206(1)(a) does not “ha[ve], as an element, the use or
attempted use of physical force.”             

(a)(33)(A)(ii).
    We recognized in Castro that a person can violate
section 45-5-206(1)(a) by verbal conduct alone—e.g., by
“subjecting someone to a public tirade of insults or
emotional abuse.” 

 (quoting United States v.
Ross, 

, at *4 (D. Mont. Apr. 6, 2017)).
Castro relied on Ross, which in turn relied in part on the
Montana Supreme Court’s decision in State v. Sherer, 

 (Mont. 2002). There, the defendant was charged
with aggravated assault, which requires that the defendant
“purposefully or knowingly cause[] serious bodily injury to
another.” 

 at 1012 (quoting 

-
8                           USA V. DEFRANCE


202(1)). Posing as a doctor, the defendant in Sherer
telephoned a woman and convinced her to cut off her nipple.

. The Montana Supreme Court held that the
defendant’s conduct, which was entirely verbal, was
sufficient to sustain a conviction because Montana’s assault
statutes “do not require that the defendant personally direct
force toward the victim, but specifically contemplate that
any form of communication, itself, may be sufficient
conduct.” 

.
    Sherer establishes that the use of words or other forms of
communication can constitute the indirect use of physical
force under Montana law, but we also consider whether the
“bodily injury” required to violate the Montana statute
necessarily requires the use of physical force. See
Castleman, 572 U.S. at 169–71; Castro, 

,
742–44. Castro held that a person can violate section 45-5-
206(1)(a) by inflicting emotional, rather than physical,
injury on the victim. 

, 742–44. Unlike most
battery statutes, which require physical injury, 4 Montana
defines “bodily injury” to include “mental illness or
impairment.” 

(5). And
“Montana courts have concluded that one can cause ‘bodily
injury’ solely through the infliction of mental anguish.”
Castro, 

; see, e.g., State v. Cooney, 

 (Mont. 1998) (holding that “emotional anguish”
qualifies as “serious bodily injury” under section 46-14-
301(3)(a) and former section 45-2-101(64)(b), now codified

4
  See 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(a) (3d ed.
2023) (“The modern approach, as reflected in the Model Penal Code, is
to limit battery to instances of physical injury . . . .” (footnote omitted));
Francis X. Shen, Mind, Body, and the Criminal Law, 

, 2112 (2013) (“Conventional wisdom is that . . . bodily injury . . .
does not include pure ‘mental’ injury.”).
                          USA V. DEFRANCE                             9


at 45-2-101(66)(b)); State v. Cooney, 

 (Mont.
2000) (holding that emotional trauma qualifies as “serious
bodily injury” under section 46-14-302(6)(b) and former
section 45-2-101(65), now codified at 45-2-101(66)); State
v. Shen, No. DC 20-1260, slip op. at 5 (Mont. Dist. Ct.
Yellowstone Cnty. May 27, 2021) (holding that
“considerable emotional anguish” qualifies as “bodily
injury” under sections 45-5-502 and 45-2-101(5)).
    Taken together, these authorities show that a person can
violate section 45-5-206(1)(a) through any form of
communication that inflicts bodily injury in the form of
emotional anguish. The infliction of emotional anguish does
not require the use of physical force as that term is defined
by federal law. See Johnson v. United States, 

 (2010) (holding that physical force “refers to force
exerted by and through concrete bodies—distinguishing
physical force from, for example, intellectual force or
emotional force”). 5 We recognize that the Supreme Court
held in Castleman that a “misdemeanor crime of domestic
violence” requires only the force necessary to commit
common law battery, and that this is significantly less force
than Johnson required for the violent felony standard at issue
in Castro. See 

. Nevertheless, we are bound
by our precedent in Castro, which observed that Montana’s
PFMA statute “explicitly defines [bodily injury] more
broadly than the generic definition.” 71 F.4th at 741–42
(reasoning subsection (1)(a) “deviates from the generic

5
  Although our case law holds that it is impossible to intentionally or
knowingly cause bodily injury without the use of physical force, see
United States v. Calvillo-Palacios, 

, 1290–91 (9th Cir.
2017), we have not addressed a state law that defines “bodily injury” so
broadly that it includes mere emotional injury, as Montana’s PFMA
statute does.
10                          USA V. DEFRANCE


crime of battery by allowing the harm to be mental rather
than physical”). Thus, we are compelled to conclude that
section 45-5-206(1)(a) does not “ha[ve], as an element, the
use or attempted use of physical force” within the meaning
of § 921(a)(33)(A)(ii). 6
                                    III.
    The government points to case law suggesting that
DeFrance is required to show “a realistic probability, not a
theoretical possibility,” that Montana would apply section
45-5-206(1)(a) in a case that does not involve the use of
physical force. See Gonzales v. Duenas-Alvarez, 

 (2007). 7 Assuming this principle applies here,

6
  At oral argument, the government argued that Montana Criminal Law
Commission commentary demonstrates that Montana assault requires
the use of physical force. See 

 Criminal
Law Commission’s comment (noting that “‘battery,’ i.e., actual bodily
injury or contact of some kind, is an essential element of the offense of
assault in all instances except those” in which the offender causes a
reasonable apprehension of bodily injury). We disagree. Because the
commentary uses the disjunctive “actual bodily injury or contact of some
kind,” and Montana defines bodily injury to include mental illness or
impairment, the commentary does not establish that physical force is
required.
7
  In Duenas-Alvarez, the Supreme Court held that an offender asserting
that a state offense is broader than its federal counterpart must
demonstrate “a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic
definition of a crime.” 

. To make that showing, an
offender “must at least point to his own case or other cases in which the
state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Id.; accord Moncrieffe v. Holder, 

, 205–06 (2013). But recently, in United States v. Taylor, 

, 857–58 (2022), the Court suggested that the realistic
                           USA V. DEFRANCE                               11


DeFrance can make the required showing in either of two
ways. First, “if ‘a state statute explicitly defines a crime
more broadly than the generic definition, no legal
imagination is required to hold that a realistic probability
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime.’” Chavez-Solis
v. Lynch, 

, 1009–10 (9th Cir. 2015) (quoting
United States v. Grisel, 

 (9th Cir. 2007)
(en banc), abrogated on other grounds by United States v.
Stitt, 

 (2018)). “[W]hen a ‘state statute’s greater
breadth is evident from its text,’ a petitioner need not point


probability standard may have no application in a case, such as this one,
in which the inquiry posed by federal law is whether a state law has the
use of force as an element. The Court stated that the government’s
invocation of the realistic probability standard could not
         be squared with the statute’s terms. To determine
         whether a federal felony qualifies as a crime of
         violence, § 924(c)(3)(A) doesn’t ask whether the
         crime is sometimes or even usually associated with
         communicated threats of force (or, for that matter,
         with the actual or attempted use of force). It asks
         whether the government must prove, as an element of
         its case, the use, attempted use, or threatened use of
         force.
Id. The “crime of violence” provision at issue in Taylor, 

(c)(3)(A), is similar to the provision at issue here. Compare 

(c)(3)(A) (“For purposes of this subsection the term ‘crime
of violence’ means an offense that is a felony and . . . has as an element
the use, attempted use, or threatened use of physical force against the
person or property of another . . . .”), with 

 § 921(a)(33)(A) (“[T]he
term ‘misdemeanor crime of domestic violence’ means an offense that
. . . is a misdemeanor under Federal, State, Tribal, or local law; and . . .
has, as an element, the use or attempted use of physical force . . . .”).
After Taylor, it is not clear what remains of the realistic probability
standard.
12                     USA V. DEFRANCE


to an actual case applying the statute of conviction in a
nongeneric manner.” Id. at 1010 (quoting Grisel, 

). Alternatively, where a statute’s overbreadth is not
evident from its text, a defendant “can show the requisite
‘realistic probability’ of prosecution for conduct that falls
outside the generic definition” by “‘point[ing] to his own
case or other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for which he
argues.’” 

 at 1009 (quoting Duenas-Alvarez, 

). DeFrance relies exclusively on the first theory rather
than the second. Accordingly, we address only whether it is
“evident from its text” that the Montana PFMA statute does
not require the use of physical force.
    The government maintains that “it cannot be ‘evident
from its text’ that [Montana’s PFMA statute] is overbroad,
because the text is indistinguishable from the statutory text
upheld in Castleman.” Answering Brief of the United States
at 31. We disagree.
    In Castleman, the Supreme Court considered whether a
Tennessee domestic violence statute had as an element the
use or attempted use of physical force. 

. The
Tennessee statute made it unlawful to “intentionally or
knowingly cause[] bodily injury” to a domestic partner, 

, and it defined “bodily injury” to include “a cut,
abrasion, bruise, burn or disfigurement; physical pain or
temporary illness or impairment of the function of a bodily
member, organ, or mental faculty,” 

 at 170 (quoting 

(a)(2) (1997)). The Court concluded
that the statute required the use of physical force because
“these forms of injury do necessitate force in the common-
                           USA V. DEFRANCE                               13


law sense.” 

 8 Accordingly, the Court held that a
conviction under the Tennessee statute “qualifies as a
‘misdemeanor crime of domestic violence.’” 

.
    As the government points out, the Tennessee statute’s
language is similar to section 45-5-206(1)(a)’s language.
The Tennessee statute makes it unlawful to “intentionally or
knowingly cause[] bodily injury” to a domestic partner, 

; the Montana statute makes it unlawful to
“purposefully or knowingly cause[] bodily injury to a partner
or family member,” 

(1)(a). The
Tennessee statute defines bodily injury to include “a cut,
abrasion, bruise, burn or disfigurement; physical pain or
temporary illness or impairment of the function of a bodily
member, organ, or mental faculty,” Castleman, 

 (quoting 

(a)(2) (1997));
the Montana statute defines bodily injury as “physical pain,
illness, or an impairment of physical condition and includes
mental illness or impairment,” 

-
101(5). The language of the two statutes is not identical, and

8
  Criminal battery requires “either a bodily injury or an offensive
touching.” 2 Wayne R. LaFave, Substantive Criminal Law § 16.2 (3d
ed. 2023). “The force used need not be applied directly to the body of
the victim, as in the usual case where one shoots at another or strikes him
with knife, club or fist.” Id. § 16.2(b). “It may also be indirectly applied
to the victim, as where one whips the horse on which the victim is riding,
causing the horse to bolt and throw his rider, where one drives an
automobile into the vehicle occupied by the victim, or where one
compels another to touch him in a way offensive to the other.” Id.
(footnotes omitted). “So too a battery may be committed by
administering a poison or by infecting with a disease, or even by resort
to some intangible substance.” Id. (footnotes omitted). “[A]t common
law, the element of force in the crime of battery was ‘satisfied by even
the slightest offensive touching.’” Castleman, 

 (quoting
Johnson, 

).
14                          USA V. DEFRANCE


“impairment of the function of a . . . mental faculty,” and
“mental illness or impairment” could have different
meanings. But even if the language of the Tennessee and
Montana statutes were identical, that would not end our
inquiry, because we do not consider the statutory language
in isolation.
      To determine whether it is “evident from its text” that a
state statute is broader than its federal counterpart, we also
employ ordinary tools of statutory interpretation, including
state case law interpreting the statutes in question. 9 As we
explained in Castro, in “analyzing the state statute’s text, . . .
we may also consider state court interpretations of the
statute.” 

 (citing United States v. Baldon, 

, 1123 (9th Cir. 2020)); see also Olea-Serefina v.
Garland, 

 (9th Cir. 2022) (“[I]n applying
the categorical approach to a state offense, we are bound by
the state courts’ ‘interpretation of state law, including [their]
determination of the elements’ of an offense.” (alteration in
original) (quoting Johnson, 

)); accord
Taylor, 

 (“Appreciating the respect due state
courts as the final arbiters of state law in our federal system,
. . . it ma[kes] sense to consult how a state court would
interpret its own State’s laws.”).



9
  On occasion, we have found the statutory language conclusive without
consulting case law. E.g., United States v. Bautista, 

, 704–
05 (9th Cir. 2021) (holding that an Arizona drug statute was broader than
the federal definition of a “controlled substance offense” based solely on
a comparison of the two statutes’ language; whereas the federal statute
excluded hemp, the Arizona statute did not); United States v. Laurico-
Yeno, 

, 821–22 (9th Cir. 2010) (declining to consider case
law where a California statute on its face fell within the federal definition
of a “crime of violence”).
                       USA V. DEFRANCE                      15


    In Grisel, 488 F.3d at 850–51, for example, our en banc
court concluded that a statute’s overbreadth was evident
from its text based not only on statutory language but also
on state case law interpreting and applying the statute. In
doing so, we recognized that relying on the statutory
language alone may be misleading because the state courts
may have narrowed the statute’s application through judicial
interpretation. 

 at 850 (citing James v. United States, 

 (2007), overruled on other grounds by
Johnson v. United States, 

 (2015)). We
followed the same analytical steps in United States v. Vidal,

, 1080–86 (9th Cir. 2007) (en banc),
abrogation on other grounds recognized by United States v.
Bautista, 

 (9th Cir. 2021), where we
similarly concluded that a statute’s overbreadth was evident
from its text based not only on the statutory language but
also on state case law, model jury instructions, legislative
history, other statutes, and state canons of statutory
interpretation. Here, our conclusion that section 45-5-
206(1)(a)’s overbreadth is evident from its text considers the
statute’s language as well as Montana case law. Because
Montana’s courts have the final say in construing Montana
assault statutes, the similarities between the words of the
Tennessee and Montana statutes do not foreclose our
conclusion that the Montana statute is materially broader.
Indeed, as interpreted by Castro, Montana case law compels
the conclusion that the use of physical force is not an element
of 45-5-206(1)(a), because the statute may be violated by
inflicting only emotional injury.
    The government’s reliance on Castleman is also
misplaced because Castleman’s brief analysis of the
Tennessee statute did not address whether the Tennessee
statute is as expansive as the Montana statute. Although the
16                    USA V. DEFRANCE


Court held that it was impossible to violate the Tennessee
statute without the use of physical force, the Court did not
consider whether the Tennessee statute could be violated by
words alone or whether emotional injury, without more,
qualifies as bodily injury under Tennessee law. Castleman’s
conclusion that the Tennessee statute requires the use of
physical force does not resolve whether the Montana statute
does as well.
                             IV.
    We recognize that it may be unlikely that Montana
would actually apply section 45-5-206(1)(a) in a case
involving only verbal conduct and emotional injury. During
a hearing on DeFrance’s motions to dismiss the indictment,
the district court asked government counsel whether she was
“aware of any partner family member assault or [other]
assault convictions in the Montana courts that relied on proof
of bodily injury caused solely . . . by verbal or other non-
physical conduct by a defendant.” Government counsel
suggested that such cases would be brought under Montana
Code Annotated section 45-5-206(1)(c), which makes it
unlawful to “purposely or knowingly cause[] reasonable
apprehension of bodily injury in a partner or family
member,” rather than section 45-5-206(1)(a), the statute at
issue here. Neither DeFrance nor the government could
point to a single case in which Montana applied section 45-
5-206(1)(a) in the absence of the use of physical force. But
under our case law, a “realistic probability” of overbroad
application is conclusively established wherever, as here, a
statute’s overbreadth is “evident from its text.” See Chavez-
Solis, 803 F.3d at 1009–10. When the statute’s text makes
its overbreadth evident, no further inquiry into a “realistic
probability” of overbroad application is required and a
defendant “need not point to an actual case applying the
                           USA V. DEFRANCE                             17


statute of conviction in a nongeneric manner.” Id. at 1010.
“As long as the application of the statute’s express text in the
nongeneric manner is not a logical impossibility, the relative
likelihood of application to nongeneric conduct is
immaterial.” Lopez-Aguilar v. Barr, 

(9th Cir. 2020).
    As interpreted by Castro, Montana case law makes
evident that Montana Code Annotated section 45-5-
206(1)(a) does not “ha[ve], as an element, the use or
attempted use of physical force.”         See 

(a)(33)(A)(ii). Thus, DeFrance’s conviction under
section 45-5-206(1)(a) does not qualify as a “misdemeanor
crime of domestic violence.”       We therefore reverse
DeFrance’s § 922(g)(9) conviction, vacate his sentence, and
remand for resentencing or other proceedings consistent
with this opinion. 10
                          *         *        *
    For the reasons stated here and in a concurrently filed
memorandum disposition, DeFrance’s convictions are
AFFIRMED IN PART and REVERSED IN PART, the
sentence is VACATED, and the case is REMANDED for
resentencing or for other proceedings consistent with the
judgment of this court. 11

10
   Our holding that section 45-5-206(1)(a) does not qualify as a
“misdemeanor crime of domestic violence” makes it unnecessary to
reach DeFrance’s remaining challenges to his § 922(g)(9) conviction.
11
   The conclusion that DeFrance’s conviction under section 45-5-
206(1)(a) does not qualify as a “misdemeanor crime of domestic
violence” may call into question DeFrance’s convictions under
§ 922(a)(6). DeFrance has not challenged his § 922(a)(6) convictions on
this ground and we express no opinion as to whether this issue is properly
preserved.
18                      USA V. DEFRANCE


  DeFrance’s motion for judicial notice, Docket No. 43, is
GRANTED.


CHRISTEN, Circuit Judge, concurring:

      I do not lightly reach the conclusion that Montana’s
PFMA statute cannot serve as a predicate for 

(g)(9) convictions. There is little doubt that when
Congress enacted § 922(g)(9), it intended to keep firearms
out of the hands of misdemeanor domestic abusers. Id. (“It
shall be unlawful for any person . . . who has been convicted
in any court of a misdemeanor crime of domestic violence
. . . to . . . possess . . . any firearm . . . .”); United States v.
Hayes, 

 (2009) (“Firearms and domestic
strife are a potentially deadly combination nationwide.”).
Yet after today’s decision, misdemeanor domestic abusers
convicted under Montana Code Annotated section 45-5-
206(1)(a) will not be subject to § 922(g)(9)’s prohibition on
the possession of firearms. This cannot be what Congress
intended, but I conclude that it is the result dictated by
faithful application of controlling precedent.
    Congress defined “misdemeanor crime of domestic
violence” to include a state offense that “has, as an element,
the use or attempted use of physical force.” 

(a)(33)(A)(ii) (emphasis added). In determining the
elements of a state offense, we consider not only the
statutory language but also state court interpretations of the
statute. See United States v. Taylor, 

(2022) (observing that, when applying the categorical
approach: “Appreciating the respect due state courts as the
final arbiters of state law in our federal system, . . . it ma[kes]
sense to consult how a state court would interpret its own
                       USA V. DEFRANCE                      19


State’s laws.”); Johnson v. United States, 

, 138
(2010) (“We are . . . bound by the [state] Supreme Court’s
interpretation of state law, including its determination of the
elements of [that law].”); United States v. Castro, 

 (9th Cir. 2023) (“We begin by analyzing the state
statute’s text, and we may also consider state court
interpretations of the statute.”); United States v. Grisel, 

, 850–51 (9th Cir. 2007) (en banc) (considering
state court interpretations of state law when applying the
categorical approach, in part because a state’s courts may
have narrowed the scope of the statutory language),
abrogated on other grounds by United States v. Stitt, 

 (2018).
    The Montana Supreme Court has interpreted the state’s
assault statutes broadly. It has held that assault may be
committed through words alone, State v. Sherer, 

 (Mont. 2002), and that “bodily injury” may
consist of nothing more than nonphysical, emotional injury,
State v. Cooney, 

 (Mont. 1998). Neither
purely verbal conduct nor purely emotional injury requires
the use of physical force as that term is defined by federal
law. See Johnson, 

 (holding that physical
force “refers to force exerted by and through concrete
bodies—distinguishing physical force from, for example,
intellectual force or emotional force”). Accordingly, the
Montana statute under which DeFrance was convicted,

(1)(a), does not “ha[ve], as an
element, the use or attempted use of physical force,” 

(a)(33)(A)(ii), and a conviction under
Montana’s PFMA statute does not qualify as a
“misdemeanor crime of domestic violence” for purposes of
§ 922(g)(9).
20                          USA V. DEFRANCE


    The district court reasonably concluded that Montana
would not actually apply its statute in a case that does not
involve the use of physical force; neither party could identify
an instance in which it has. But as the Supreme Court has
recently explained, § 921(a)(33)(A) “doesn’t ask whether
the crime is sometimes or even usually associated with . . .
the actual or attempted use of force[]. It asks whether the
government must prove, as an element of its case, the use
[or] attempted use . . . of force.” See Taylor, 596 U.S. at
857–58. 1 And our circuit has held that, “[a]s long as the
application of the statute’s express text in the nongeneric
manner is not a logical impossibility, the relative likelihood
of application to nongeneric conduct is immaterial.” Lopez-
Aguilar v. Barr, 

 (9th Cir. 2020). What
matters for purposes of the categorical approach is that the
Montana statute does not have the use of physical force as
an element, not whether Montana is likely to apply its statute
in an overbroad manner.
    Ironically, the result in this case would be different if
Montana’s laws were less protective of domestic violence
victims. It is only because Montana defines assault
broadly—as encompassing purely verbal conduct and purely
emotional injury—that the Montana offense at issue here


1
  Taylor involved the federal definition of “crime of violence” under the
elements clause of § 924(c). That provision is similar, but not identical,
to the provision at issue here. Compare 

(c)(3)(A) (“For
purposes of this subsection the term ‘crime of violence’ means an offense
that is a felony and . . . has as an element the use, attempted use, or
threatened use of physical force against the person or property of another
. . . .”), with 

 § 921(a)(33)(A) (“[T]he term ‘misdemeanor crime of
domestic violence’ means an offense that . . . is a misdemeanor under
Federal, State, Tribal, or local law; and . . . has, as an element, the use or
attempted use of physical force . . . .”).
                       USA V. DEFRANCE                      21


sweeps more broadly than the federal definition of
“misdemeanor crime of domestic violence.”
    The counterintuitive result in this case is not carved in
stone. First, the opinion issued today relies on the Montana
Supreme Court’s interpretation of Montana assault statutes
generally, not the PFMA statute specifically. If our court
misunderstands the scope of the phrase “bodily injury” in the
PFMA statute, the outcome of this categorical analysis could
change. Second, Congress has the power to amend the
federal definition of “misdemeanor crime of domestic
violence” to address the anomalous result in this case and
others like it. For example, the outcome of this case likely
would be different if the definition of “misdemeanor crime
of domestic violence” in 

(a)(33)(A)(ii)
turned on an offender’s actual conduct rather than the
elements of the crime of conviction. Alternatively, Congress
could focus the § 921(a)(33)(A) inquiry on a statute’s
practical scope rather than its formal elements—asking
whether there is a meaningful likelihood that the statute
would be applied in an overbroad manner. In Gonzales v.
Duenas-Alvarez, 

 (2007), and Moncrieffe
v. Holder, 

, 205–06 (2013), for example,
the Court noted that “there must be ‘a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of
a crime.’” Moncrieffe, 

 (quoting Duenas-
Alvarez, 

). This rule has been applied
inconsistently, and our current circuit precedent does not
require this showing where it is evident from a statute’s text
that the state offense is broader than its federal counterpart.
See Chavez-Solis v. Lynch, 

, 1009–10 (9th Cir.
2015). Congress is free to codify the standard set out in
Duenas-Alvarez, or otherwise to adopt a definition of
22                     USA V. DEFRANCE


“misdemeanor crime of domestic violence” that would
require offenders to show something more than a theoretical
possibility of overbroad application in order to negate
§ 922(g)(9)’s important domestic violence protections.


RAKOFF, District Judge, concurring:

    While I am obliged by precedent to join in the Court’s
opinion, I continue to be deeply troubled by the so-called
“categorical approach,” first adopted by the Supreme Court
in Taylor v. United States, 

 (1990), and still
binding on all lower courts. As we stated in Castro, this
approach “requires, for better or worse, that we ignore what
actually occurred during the defendant’s prior felony.”
United States v. Castro, 

 (9th Cir. 2023). It
seems to me that case after case, including this one, have
demonstrated that the categorical approach is “for worse,”
leading to bizarre results.
     I agree with Judge Christen that Congress should fix this
problem, not least because it is hard to believe that Congress
intended these results when it enacted § 922(g)(9). See
United States v. Castleman, 

 (2014)
(“Congress enacted § 922(g)(9) . . . to ‘“close [a] dangerous
loophole”’ in the gun control laws: While felons had long
been barred from possessing guns, many perpetrators of
domestic violence are convicted only of misdemeanors.”).
But I have not given up hope that the Supreme Court might
still fix the problem or at least take a more realistic view of
how to interpret the categorical approach.
    Indeed, if one were writing on a blank slate, one might
reach a different conclusion than did the Supreme Court in
                       USA V. DEFRANCE                      23


Taylor. In that case, the Supreme Court adopted the
categorical approach for three reasons, none of which is
compelling. First, the Court stated that the statutory language
“generally supports the inference that Congress intended the
sentencing court to look only to the fact that the defendant
had been convicted of crimes falling within certain
categories, and not to the facts underlying the prior
convictions.” Taylor, 

. But any language as
equivocal as “generally supports the inference” invites
reconsideration in light of experience. Indeed, the precise
statutory text that the Court was asked to interpret did not
even include the “element” language often cited to justify the
necessity of the categorical approach. Second, the Court
stated that the legislative history “shows that Congress
generally took a categorical approach.” 

 (emphasis
added). But this very language illustrates that the legislative
history was mixed. Third, and seemingly most important to
the Court in Taylor, the Court stated that “the practical
difficulties and potential unfairness of a factual approach are
daunting.” 

 But as the instant case demonstrates,
ascertaining the relevant underlying facts has not proved
difficult in most cases, where the relevant facts have been
fully established by allocutions-on-the-record and the like.
And, in any event, such alleged difficulties are, in my view,
no excuse for ignoring the actual facts of a case in favor of
hypothetical guesses at how broadly the underlying statute
might be construed.
    In short, it seems to me that Congress never remotely
intended the counter-intuitive results that the categorical
approach has engendered. Although the Supreme Court has
thus far declined the opportunity to reconsider whether
Congress really intended the categorical approach, I join the
growing number of lower-court judges and Supreme Court
24                     USA V. DEFRANCE


justices who have called into question the propriety of this
approach. See, e.g., United States v. Taylor, 

 (2022) (Thomas, J., dissenting) (“This holding
exemplifies just how this Court’s ‘categorical approach’ has
led the Federal Judiciary on a ‘journey Through the Looking
Glass,’ during which we have found many ‘strange things.’
Rather than continue this 30-year excursion into the absurd,
I would hold Taylor accountable for what he actually did and
uphold his conviction.”) (citation omitted); Mathis v. United
States, 

 (2016) (Alito, J., dissenting) (“A
real-world approach would avoid the mess that today’s
decision will produce. Allow a sentencing court to take a
look at the record in the earlier case to see if the place that
was burglarized was a building or something else.”); United
States v. Burris, 

 (6th Cir. 2019) (en banc)
(Thapar, J., concurring) (“A casual reader of today’s
decision might struggle to understand why we are even
debating if ramming a vehicle into a police officer is a crime
of violence. The reader’s struggle would be understandable.
The time has come to dispose of the long-baffling
categorical approach.”); United States v. Faust, 

 (1st Cir. 2017) (Lynch, J., concurring) (“My concern is
that use of these tests can lead courts to reach
counterintuitive results, and ones which are not what
Congress intended.”).