The Lautenberg Amendment and Texas family-violence convictions

What § 922(g)(9) actually says

The Lautenberg Amendment was enacted in 1996 as an addition to the federal Gun Control Act. Codified at 18 U.S.C. § 922(g)(9), it prohibits any person who has been convicted in any court of a misdemeanor crime of domestic violence from shipping, transporting, possessing, or receiving any firearm or ammunition.¹

The federal definition of “misdemeanor crime of domestic violence” at 18 U.S.C. § 921(a)(33)(A) has two parts: (1) the offense must be a misdemeanor under federal, state, tribal, or local law; and (2) the offense must have, 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 whom the victim shared a child, by a person cohabiting with or having cohabited with the victim, or by a person similarly situated.

How a Texas conviction becomes the federal predicate

The most common Texas-to-federal pathway is a misdemeanor assault under Penal Code § 22.01(a)(1) with an Article 42.013 affirmative finding of family violence. The Article 42.013 finding flags the conviction in Texas DPS and NCIC databases, and ATF’s Form 4473 background-check system picks it up on any firearm purchase attempt.

To satisfy § 921(a)(33)(A), the Texas conviction must include the federal “physical force” element and the federal “domestic relationship” element. Texas Penal Code § 22.01 reaches conduct that includes a use of physical force, an attempted use of physical force, or the threatened use of a deadly weapon — all of which can be § 921(a)(33)(A) predicates depending on which subdivision of § 22.01 is charged.

The Article 42.013 finding helps establish the domestic-relationship element. Family Code § 71.003 (family member), § 71.005 (household member), and § 71.0021 (dating relationship) define the categories that map to the federal “similarly situated” coverage.

The categorical approach and Fifth Circuit doctrine

Federal courts use the categorical and modified-categorical approaches to decide whether a state conviction qualifies as a § 921(a)(33)(A) predicate. The court compares the elements of the state offense to the federal definition. If the state offense always requires the federal elements, it is a categorical match. If the state offense sometimes requires the federal elements and sometimes does not, the court may look at limited record materials (charging document, plea colloquy, jury instructions) under the modified-categorical approach to identify what the defendant was actually convicted of.

The Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014), addressed the “physical force” element. The Court held that the “physical force” element in § 921(a)(33)(A) is satisfied by even minor offensive touching, drawing on the common-law definition of battery. Castleman made it harder for state-court defendants to argue that their misdemeanor offense was not a § 922(g)(9) predicate.²

The Fifth Circuit has applied Castleman and related doctrine to Texas convictions. United States v. Reyes-Contreras, 910 F.3d 169, 182–87 (5th Cir. 2018) (en banc) (overruling Villegas-Hernandez Part I.A; Castleman is not limited to the domestic-violence context, and the direct/indirect-force distinction is invalid); United States v. Shelton, 325 F.3d 553, 557, 561 (5th Cir. 2003) (Texas Penal Code § 22.01(a)(1)'s bodily-injury element satisfies § 921(a)(33)(A)(ii)); USA v. Hernandez, 159 F.4th 425 (5th Cir. 2025) (most recent Fifth Circuit confirmation that Texas § 22.01 family-violence convictions are categorically crimes of violence).

How the federal bar is enforced

Most defendants encounter § 922(g)(9) at one of three flashpoints:

1. An ATF Form 4473 firearm-purchase denial. The denial letter cites the conviction.
2. A traffic stop or other law-enforcement encounter that turns up a firearm; ATF investigates and refers to the U.S. Attorney’s Office.
3. A separate criminal investigation that reveals firearm possession; § 922(g)(9) is added as a charge.

The U.S. Attorney’s Offices for the Northern District of Texas and Eastern District of Texas both prosecute § 922(g)(9) cases. The federal sentencing range under 18 U.S.C. § 924(a)(2) is up to 10 years; the U.S. Sentencing Guidelines drive the actual sentence in most cases. Defendants with multiple prior firearms-related convictions face the Armed Career Criminal Act’s 15-year mandatory minimum at § 924(e).

The narrow safe-harbor provisions

Section 921(a)(33)(B) contains two relevant safe harbors:

Counsel-waiver predicate

A person is not considered convicted unless the person was either represented by counsel or waived the right to counsel, and unless the case was tried by a jury — unless the person waived the right to a jury. The waiver must be knowing and intelligent.

Expungement / restoration / pardon

A conviction does not disqualify the person if the conviction has been expunged, set aside, or has been the subject of a pardon — provided that the expungement, set-aside, or pardon expressly does not restrict firearm rights or, if it does, the person remains subject to the federal bar.

The Texas reality: a typical Texas misdemeanor plea is represented by counsel (or counsel was waived after admonishment), so the counsel-waiver safe harbor rarely applies. The expungement/restoration safe harbor is rarely available because most Texas family-violence convictions are not eligible for expunction. A deferred-adjudication set-aside under Article 42A.701 does not consistently qualify as “set aside” for federal purposes — the Fifth Circuit’s reading of the federal definition has been narrower than the Texas-side relief.

Practitioner strategy at the plea

The pre-plea negotiation is where the federal-firearm consequence is most addressable. Strategy options:

1. Negotiate to a non-family-violence offense. If the State’s relationship proof is contestable, a plea to a plain Class A misdemeanor assault without the Article 42.013 finding avoids the federal bar.
2. Negotiate to a conviction with an element that does not satisfy § 921(a)(33)(A). This is fact-specific and depends on the Texas charging options available.
3. Plead to a different offense category — disorderly conduct, terroristic threat outside the family-violence subsections — that does not include the “physical force” element.
4. Document the counsel-waiver record. If the federal bar later becomes contested, a clean record of counsel’s involvement is at least preserved.

Common fact patterns producing § 922(g)(9) charges

The recurring fact patterns producing federal § 922(g)(9) prosecutions in the Northern and Eastern Districts of Texas:

1. Traffic stop firearm discovery. A defendant with a prior Texas family-violence misdemeanor is stopped for a traffic violation; an officer searches the vehicle (consent or probable cause) and discovers a firearm. ATF and the U.S. Attorney’s Office investigate.
2. ATF Form 4473 denial. A defendant attempts to purchase a firearm at a federally licensed dealer (FFL); the background check returns the family-violence conviction; the dealer denies the sale. ATF sometimes follows up on the attempted-purchase context.
3. Domestic-violence response. Law enforcement responds to a domestic-violence call; a firearm is found in the home; the defendant’s prior conviction is identified. The state-court family-violence charge can be paired with a federal § 922(g)(9) charge.
4. Felon-in-possession state charge expanding. A defendant charged with state § 46.04 is identified as also having a prior family-violence misdemeanor; federal prosecutors take the case as § 922(g)(9) — sometimes with significant sentencing exposure differences from the state charge.
5. Self-disclosure during a separate investigation. A defendant under investigation for unrelated conduct (drug, white-collar) admits firearm possession; the prior family-violence conviction makes that possession a federal offense.
6. Hunting or sport-shooting context. A defendant with an old conviction goes hunting with friends; the firearm possession during the trip is a § 922(g)(9) violation regardless of the lawful sporting purpose.

Fifth Circuit doctrine on § 922(g)(9) predicates

The Fifth Circuit has produced significant doctrine on what Texas convictions qualify as § 921(a)(33)(A) predicates. Recurring themes:

1. Categorical approach. The federal court compares the elements of the Texas offense to the federal generic definition. If the Texas offense always requires the federal elements, it is a categorical match.
2. Modified-categorical approach. If the Texas offense is divisible under Mathis v. United States, the federal court can look at limited record materials to identify the specific elements the defendant was convicted of.
3. Castleman application. The Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014), held that even minor offensive touching satisfies the “physical force” element. This expanded the universe of qualifying Texas predicates.
4. Mens rea analysis post-Borden. After Borden v. United States, 593 U.S. 420 (2021), reckless-mens-rea offenses do not satisfy the elements clause of ACCA, but the § 921(a)(33)(A) analysis is governed by different statutory language. The Fifth Circuit’s treatment of recklessness for § 921(a)(33)(A) purposes remains a developing area.
5. Relationship element. The federal “similarly situated” language at § 921(a)(33)(A)(ii)(II) has been litigated. Texas Family Code definitions of family, household, and dating relationships generally map to the federal categories but specific scenarios (former dating partners, former roommates, etc.) have produced litigation.

For any Texas conviction being evaluated as a § 921(a)(33)(A) predicate, counsel should run the categorical analysis carefully and not assume the predicate is automatically qualifying.

What to do if you face a § 922(g)(9) charge

For defendants facing federal § 922(g)(9) prosecution, the strategic priorities:

1. Categorical-approach analysis. Have counsel evaluate whether the Texas predicate conviction qualifies under the categorical or modified-categorical approach. Some predicates that the government assumes are qualifying turn out not to be on close analysis.
2. Counsel-waiver predicate. Examine whether the Texas conviction was entered with adequate counsel representation or counsel waiver. A defective counsel-waiver record can support a § 921(a)(33)(B)(i) safe-harbor argument.
3. Restoration analysis. Determine whether the Texas conviction has been the subject of expunction, set-aside, or pardon that could satisfy the § 921(a)(33)(B)(ii) safe harbor. Most Texas family-violence convictions are not eligible for these, but some unusual postures qualify.
4. Plea posture. Federal plea negotiations are typically structured around the Sentencing Guidelines. A categorical-approach challenge to the predicate, if successful, removes the federal charge entirely.
5. Trial preparation. If a categorical-approach challenge is the most viable defense, prepare for a motion-to-dismiss litigation cycle. The challenge is typically resolved before trial.

What to do if § 922(g)(9) has already attached

If the conviction is already final and the federal bar has attached, the realistic moves are limited but worth considering.

1. Audit the conviction for ineffective-assistance grounds. A plea that did not include a Padilla-style federal-firearm warning may be vulnerable to a habeas attack under Article 11.072 (community supervision habeas) or under Article 11.07 (felony habeas, if the matter is a felony).
2. Audit the categorical analysis. Some Texas misdemeanor offenses do not categorically match the federal definition. A federal court applying the categorical approach may find that the specific Texas offense the defendant was convicted of is not a § 921(a)(33)(A) predicate.
3. Pursue a Texas Governor’s pardon. A pardon, in some postures, can support a restoration claim under § 921(a)(33)(B), although the federal courts have not always agreed.
4. Surrender firearms. The most consequential immediate compliance step is to dispose of any firearms and ammunition currently in the defendant’s possession or control. Continued possession after the conviction is a separate federal offense.