Full opinion text
LYNCH, Chief Judge. The Supreme Court has directed us, in light of United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of “misdemeanor crimes of domestic violence,” as defined in 18 U.S.C. § 921(a)(33)(A), even though the state statutes allowed conviction based on a recklessness mens rea. Armstrong v. United States, — U.S. -, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir. 2013); United States v. Voisine, 495 Fed. Appx. 101 (1st Cir.2013) (per curiam). If so, then their motions to dismiss their federal charges for possessing firearms after such convictions, in violation of 18 U.S.C. § 922(g)(9), were properly denied. Our answer is informed by congressional recognition in § 922(g)(9) of the special risks posed by firearm possession by domestic abusers. “Domestic violence often escalates in severity over time ... and the presence of a firearm increases the likelihood that it will escalate to homicide.... ” Castleman, 134 S.Ct. at 1408. It is also informed by the congressional choice in the federal sentencing scheme to honor each state’s choice as to how to define its own crimes, through statutory text and judicial decision. As we see it, this case turns on the unique nature of § 922(g)(9). That section is meant to ensure that individuals who engage in the “seemingly minor act[s]” that actually constitute domestic violence, like squeezing and shoving, may not possess a firearm. Castleman, 134 S.Ct. at 1412. This range of predicate acts is broader than that found in other federal prohibitions involving the use of physical force. Applying the teachings of Castle-man, we find that Maine’s definition of reckless assault fits within § 922(g)(9). We affirm the denial of the motion to dismiss the indictment and information here. That means the conditional guilty pleas the defendants entered are valid and their sentences stand. The question is close and we rule narrowly. I. A. Statutory Background As the Supreme Court observed in Cas- ■ tleman, 18 U.S.C. § 922(g)(9) was enacted to close a loophole. “While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors.”. Castleman, 134 S.Ct. at 1409. No ban prevented those domestic abusers from possessing firearms, yet there is a “sobering” connection between domestic violence and homicide. Id. The “manifest purpose” of § 922(g)(9), the Lautenberg Amendment to the Gun Control Act of 1968, was to remedy the “potentially deadly combination” of “[fjire-arms and domestic strife.” United States v. Hayes, 555 U.S. 415, 426-27, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). Under § 922(g)(9), it is against federal law for any person “who has been convicted in any court of a misdemeanor crime of domestic violence” to “possess in or affecting commerce[] any firearm or ammunition.” In turn, a “misdemeanor crime of domestic violence” is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force ... committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim.. The predicate offenses in these cases are convictions under Maine assault statutes. Me.Rev.Stat. Ann. tit. 17-A, §§ 207(1)(A), 207-A(l)(A). Under Maine law, a “person is guilty of assault if[ t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” Id. § 207(1)(A). A violation of § 207 constitutes misdemeanor domestic violence assault if the “victim is a family or household member.” Id. § 207-A(1)(A). Maihe law explains that “[a] person acts recklessly with respect to a result of the person’s conduct when the person consciously disregards a risk that the person’s conduct will cause such a result.” Id. § 35(3)(A). The statute goes on to give more meat to the “conscious disregard” definition. It refers to disregard of a risk, “when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to that person,” that “involve[s] a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.” Id. § 35(3)(C). B. Facts William E. Armstrong III was convicted in 2002 and 2008 of assaulting his wife in violation of Maine’s misdemeanor assault statutes, Me.Rev.Stat. Ann. tit. 17-A §§ 207(1)(A), 207-A(l)(A). In May 2010, twenty-nine months after the last domestic assault conviction, the Maine State Police searched the Armstrong residence for drug paraphernalia and marijuana. They discovered six firearms and ammunition. The police notified the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which executed a search. That search uncovered only ammunition, but Armstrong later explained that he had arranged for a friend to remove the guns. ATF agents observed the guns at the friend’s home. Armstrong was arrested and federally charged with being a prohibited person in possession of a firearm, in violation of § 922(g)(9). The indictment listed Armstrong’s 2008 domestic violence assault conviction as the predicate offense. Stephen L. Voisine was convicted in 2003 and 2005 of assaulting a woman with whom he was in a domestic relationship, in violation of Maine’s assault statute. In 2009, acting on an anonymous tip, state and local law enforcement officials arrested Voisine on the federal misdemeanor charge of killing a bald eagle in violation of 16 U.S.C. § 668(a). When conducting a background check, they discovered his 2003 misdemeanor simple assault. As Voi-sine had turned a rifle over to the police during the investigation, the criminal information charged him with violating § 922(g)(9) as well as § 668(a). C. Procedural History Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court’s decision. We consolidated Armstrong and Voi-sine’s cases. In a January 18, 2013 opinion, we affirmed the district court’s decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 Fed.Appx. at 102 (incorporating the reasoning from Armstrong as there were “no pertinent factual differences” distinguishing the two cases). The defendants had argued that a misdemean- or assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a “use of physical force,” and, concordantly, not a “misdemeanor crime of domestic violence.” Relying on United States v. Booker, 644 F.3d 12 (1st Cir.2011), and United States v. Nason, 269 F.3d 10 (1st Cir.2001), we held that § 922(g)(9) did not distinguish between violent and nonviolent convictions, and the statute included the offensive physical contact portion of the Maine statute within its definition of “physical force.” Armstrong, 706 F.3d at 6; Voisine, 495 Fed.Appx. at 101-02. Second, the defendants argued that § 922(g)(9) violated the Second Amendment as applied to them. This argument was foreclosed by Booker, which denied an identical argument framed as a facial challenge. 644 F.3d at 22-26; see Armstrong, 706 F.3d at 7-8; Voisine, 495 Fed.Appx. at 101. The defendants petitioned for certiorari. On March 31, 2014, the Supreme Court granted their' petitions, vacated the judgments, and remanded “for further consideration in light of United States v. Castle-man.” Armstrong, v. United States, — U.S. —-, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.). In Castleman, the Court had addressed the issue of whether the phrase “use of physical force” in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. That issue had been the source of a circuit split. Castleman resolved the question in agreement with Nason, holding that “Congress incorporated the common-law meaning of ‘force’ — namely, offensive touching — in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’ ” Cas-tleman, 134 S.Ct. at 1410. The Supreme Court left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court stated, “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” and listed ten cases. Id. at 1414 n. 8. It then added, “But see United States v. Booker, 644 F.3d 12, 19-20 (C.A.1 2011).” Id. The footnote did not say Booker was wrong. It gave no further definition of recklessness. Nor did it account for the differences in the statutory sections being interpreted in the other cases cited. This case comes to us following the Supreme Court’s remand. II. In construing § 922(g)(9)’s applicability to a given case, we use the “categorical approach.” Under that approach the elements of the predicate offense (here, the Maine assault statute) must be identical to or categorically within the description of the subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.Ct. at 1413. Where, as here, the predicate statute is “divisible” into crimes with alternative sets of elements, we may consider whether the elements under which the defendant was convicted are still within the subsequent provision, an inquiry known as the “modified categorical approach.” Id. at 1414. The government concedes that the record here of the state proceedings is too sparse to “discern under which prong of Maine’s statute” the defendants were convicted, and they urge us against “resort[ing] to the modified categorical approach.” For us to affirm, we must find that the Maine statute — including the reckless acts it prohibits — categorically fits within § 922(g)(9). The defendants frame the issue as whether a reckless act can constitute a “use of physical force” and rely on cases interpreting statutes other than § 922(g)(9). We do not agree that is the proper way to frame the question. That framing is predicated on the notion that particular statutory language must be interpreted identically in different sections across the U.S.Code. To the contrary, context matters, as the Supreme Court demonstrated in Castleman itself. 134 S.Ct. at 1410-12. The question is whether Maine’s definition of reeWessness fits within § 921(a)(33)(A)’s phrase “use of physical, force.” Section 921(a)(33)(A) is a provision crafted in the unique context of domestic violence, and it should be so interpreted. Castleman, 134 S.Ct. at 1410-12 & n. 4; Booker, 644 F.3d at 18-21. This reframing of the question clarifies our approach to the two arguments raised by the defendants: that Castleman footnote 8 decides this case, and that Castle-man’s analysis of § 921(a)(33)(A) undermines our prior decisions. Castleman’s emphasis on context reinforces, rather than undermines, our earlier decision. A. Castleman Footnote 8 The defendants read too much into Cas-tleman footnote 8, which expressly does not resolve the question before us. Nor is their argument made by reference to the cases cited for contrast in the footnote. Each of those cases construes a different statutory definition, and all but one arose in a different context. Footnote 8 begins by describing the issue as an open question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Supreme Court interpreted 18 U.S.C. § 16(a), the definition of the term “crime of violence.” 543 U.S. at 8-10, 125 S.Ct. 377. Such a crime requires “use of physical force,” and Leocal held that the term “use” suggests a mens rea higher than negligence, but it withheld judgment on whether recklessness is sufficient, Castleman, 134 S.Ct. at 1414 n. 8; Booker, 644 F.3d at 19-20. Considering context, section 16(a) is not ■analogous to the section which concerns us, § 922(g)(9). To begin, § 16(a) prohibits ‘use of physical force against the person or property of another,’ language crucial to the Supreme Court’s holding in Leocal but absent from the definition at issue here. See Leocal, 543 U.S. at 8-10. Castleman itself distinguished the term “use of force” in § 16(a), a provision for undifferentiated violent crimes, from the term “use of physical force” in § 922(g)(9)’s domestic violence provision. “Domestic violence” is a “term of art” that “encompasses a range of force broader than that which constitutes ‘violence’ simplieiter,” including “acts that might not constitute ‘violence’ in a non-domestic context.” Castleman, 134 S.Ct. at 1411 & n. 4. A “crime of violence,” by contrast, “suggests a category of violent, active crimes.” Id. at 1411 n. 4 (quoting Johnson, 559 U.S. at 140, 130 S.Ct. 1265) (internal quotation mark omitted). As the Supreme Court explained, a “ ‘squeeze of the arm [that] causes a bruise’ ” is “hard to describe as ... ‘violence’ ” within the meaning of § 16, but “easy to describe as ‘domestic violence’ ” within the meaning of § 922(g)(9). Id. at 1412 (alterations in original) (quoting Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir.2003)) (internal quotation marks omitted). Unsurprisingly, the drafting history of § 922(g)(9) indicates that “Congress expressly rejected” the § 16(a) definition, instead developing the term “misdemeanor crime of violence” that was “‘probably broader’ than the definition” in § 16. Booker, 644 F.3d at 19 (citing a statement by Sen. Lautenberg). And where Congress wanted to define a domestic violence crime as a § 16 crime of violence occurring in the domestic context, it has done so— even in the same legislation that contained the Lautenberg Amendment. See, e.g., 8 U.S.C. § 1227(a)(2)(E). “That it did not do so here suggests, if anything, that it did not mean to.” Castleman, 134 S.Ct. at 1412 n. 6. The only case cited in Castleman footnote 8 from the domestic violence context is one in which Congress elected to define the crime with reference to § 16. In Fernandez-Ruiz v. Gonzales, the Ninth Circuit considered whether a reckless misdemeanor could serve as a predicate “crime of domestic violence.” 466 F.3d 1121, 1124 (9th Cir.2006) (en banc) (citing 8 U.S.C. § 1227(a)(2)(E)©). Unlike § 922(g)(9), however, the relevant statute in Feman-dez-Ruiz defined “crime of domestic violence” as a “crime of violence” (referencing § 16) committed against someone in a domestic relationship with the perpetrator. Id. at 1124-25. The Ninth Circuit accordingly conducted a § 16 analysis, applying Leocal and cases from other circuits to reach its conclusion. Id. at 1127-32. But even that result did not follow so obviously from Leocal, as four judges dissented em-pbaswing the differences between domestic violence and other contexts. Id. at 1136 (Wardlaw, J., dissenting). On remand of this case to us, the defendants’ brief adds to the cases in the footnote by citing two other § 922(g)(9) cases, not mentioned in Castleman, which they say directly conflict with Booker. We disagree. In United States v. White, 258 F.3d 374 (5th Cir.2001), the relevant predicate statute criminalized reckless “conduct that places another in imminent danger of serious bodily injury.” Id. at 381. The court found that the statute did not require a completed “use of physical force,” since it was satisfied by a risk of injury, and the statute extended beyond an “attempted use of force” because attempt liability requires specific intent rather than recklessness. Id. at 382-84. Rather than construing the phrase “use of physical force,” as Booker did, White relied on principles of attempt liability to rule out reckless predicate crimes. In United States v. Howell, 531 F.3d 621 (8th Cir.2008), also added by the defendants, the predicate statute criminalized reckless “conduct which creates a grave risk of death or serious physical injury to another.” Id. at 624. The court found this provision to be a “catch-all provision applicable to innumerable factual situations,” so a completed “use of physical force” is not always or ordinarily present. Id. Simply put, we are aware of no case-including the cases in Castleman footnote 8 — in conflict with Bookers holding that a reckless misdemeanor assault satisfies § 922(g)(9)’s particular definition of a “misdemeanor crime of domestic violence.” Rather, § 922(g)(9)’s unique context, as described in Castleman and supported by the legislative history, suggests that § 922(g)(9) should be interpreted more broadly than other provisions, including § 16. B. Structure of Castleman The defendants present a second argument, which is that Castleman’s analytical approach to the term “use of physical force” means the conduct of neither defendant here could meet that standard. Cas-tleman held that Congress intended to incorporate the common law meaning of “force” in § 921(a)(33)(A), the definitional provision for “misdemeanor crime of domestic violence.” 134 S.Ct. at 1410. “[AJbsent other indication, ‘Congress intends todncorporate the well-settled meaning of the common law terms it uses.’ ” Id. (quoting Sekhar v. United States, — U.S. -, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)) (internal quotation mark omitted). As a result, the statutory term “physical force” is satisfied by “the degree of force that supports a common-law battery conviction.” Id. at 1413. The parties agree that, under Castleman, the term “use of physical force” also incorporates the common law mens rea for battery. The parties approach this as a generalized question. They disagree about whether reckless acts could or could not constitute batteries at common law, and each side marshals support for its view. See, e.g., Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (1921); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (1893); 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(c)(2); 3 William Blackstone, Commentaries *120. We decline the parties’ invitation to define the mens rea of a common law battery independent of the interpretation Maine gives its own statute. Castleman explains that the term “use of physical force” includes “the type of conduct that supports a common-law battery conviction.” 134 S.Ct. at 1411. Castleman also explains that Congress incorporated “the common-law meaning of ‘force.’ ” Id. at 1410. Cas-tleman holds that the term “use of physical force” includes both causing bodily injury and offensive contact. Defendants concede that reckless causation of bodily injury is a use of physical force. We see no reasoned argument that offensive physical contact does not similarly entail the use of force simply because it is inflicted recklessly as opposed to intentionally. We follow the statutory scheme in evaluating whether a conviction under the Maine statute categorically counts as a “misdemeanor crime of domestic violence.” 1. The Scope of a “Misdemeanor Crime of Domestic Violence” As Castleman explained, § 922(g)(9) is a statute with a particular purpose: to ensure that domestic abusers convicted of misdemeanors, in addition to felonies, are barred from possessing firearms. 134 S.Ct. at 1408-12. “[Bjecause perpetrators of domestic violence are ‘routinely prosecuted under generally applicable assault or battery laws,’ ” id. at 1411 (quoting Hayes, 555 U.S. at 427, 129 S.Ct. 1079), we think .Congress intended the firearm prohibition to apply to those convicted under typical misdemeanor assault or battery statutes. See id. at 1411, 1413.' That encompasses assault statutes for those states that allow conviction with a mens rea of recklessness where recklessness is defined as including a degree of intentionality. A victim of domestic violence often encounters the perpetrator again, and a broader reading of § 922(g)(9)’s mens rea requirement better ensures that a perpetrator convicted of domestic assault is unable to use a gun in a subsequent domestic assault. If Congress had wanted to impose a higher mens rea, it could have done so explicitly, as it did in the immediately preceding section of the bill that established § 922(g)(9). Booker, 644 F.3d at 18 & n. 5. This view is confirmed by the legislative history of § 922(g)(9). Senator Lauten-berg explained that § 922(g)(9) was a broad prohibition covering “any person convicted of domestic violence,” without reference to a particular mental state. 142 Cong. Rec. S10377-01 (1996). Another senator made statements to the same effect. See id. Additionally, Senator Lau-tenberg described the law’s application to scenarios without clear intent, in which domestic arguments “get out of control,” “the anger will get physical,” and one partner will commit assault “almost without knowing what he is doing.” 142 Cong. Rec. S11872-01 (Sept. 30, 1996). Such conduct may not be “knowing,” but it nonetheless constitutes a “use” of physical force — whether it causes offensive contact or bodily harm. 2. Maine’s Definition of “Recklessness ” Whatever the common law meaning of battery as to recklessness, Maine characterizes recklessness as a mens rea involving a substantial amount of deliberateness and intent. The statutory definition requires that a person “consciously disregard[ ] a risk that the person’s conduct will cause” the result. Me.Rev.Stat. Ann. tit. 17-A § 35(3)(A) (emphasis added). The disregard of the risk is “viewed in light of the nature and purpose of the person’s conduct and the circumstances known to the person.” Id. § 35(3)(C) (emphasis added). Further, it must “involve a gross deviation” from the standard of reasonable care. Id. Maine’s definition of “recklessly,” like its definition of “knowingly,” includes an element of intentionality and specificity. To act “knowingly” in Maine, the person must be aware that the result is “practically certain” to occur. Id. § 35(2)(a). Maine’s definitions of knowingly as contrasted with recklessly differ primarily in their description of the degree of the person’s awareness of the likelihood that the result will occur. Cf. 2 LaFave, Substantive Criminal Law, § 5.4(f). To act knowingly and recklessly, but not negligently, the person must be aware of the risk: the recklessness definition requires reference to “the nature and purpose of the person’s conduct and the circumstances known to the person.” Maine’s Supreme Judicial Court has made clear that the recklessness inquiry focuses on the person’s “subjective state of mind.” Stein v. Me. Criminal Justice Acad., 95 A.3d 612, 618 (Me.2014) (quoting State v. Goodall, 407 A.2d 268, 280 (Me. 1979)) (internal quotation mark omitted); see State v. Hicks, 495 A.2d 765, 771 (Me. 1985) (comparing the subjective test for recklessness with the objective test for negligence). For example, the Maine Supreme Judicial Court has affirmed a conviction for “act[ing] recklessly when [the defendant] shot a powerful handgun into the woods in a residential area and in the direction of his next-door neighbor’s home, knowing where it was located.” State v. Kline, 66 A.3d 581, 584 (Me.2013) (citing Me.Rev. Stat. Ann. tit. 17-Á § 35). It also affirmed a conviction for reckless conduct with the use of a dangerous weapon when the defendant “drove his van alongside the victim’s vehicle, remaining there ... [,] used his van to push the victim’s vehicle into heavy oncoming traffic, and made contact with that vehicle at least once.” State v. York, 899 A.2d 780, 783 (Me.2006). Maine’s definition of recklessness includes a volitional component. In this, it is like other states. See Fernandez-Ruiz, 466 F.3d at 1141 (Wardlaw, J., dissenting) (collecting cases). Notwithstanding Leo-cal, some judges found that even § 16 encompassed reckless predicate convictions. In Femandez-Ruiz, four dissenting judges of the Ninth Circuit observed that Arizona’s definition of recklessness, like Maine’s, requires that the person “be aware of a substantial and unjustifiable risk and affirmatively choose to act notwithstanding that risk.” Id. Recklessness includes an “volitional, active decision, which necessarily involves ‘a higher degree of intent than negligent or merely accidental conduct.’ ” Id. (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377); accord Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 449-50 (4th Cir.2005) (Niemeyer, J., dissenting) (“Unlike a person who accidentally injures another person, a person who acts recklessly in bringing about harm to another is aware of the nature of his conduct and thus can be said to be ‘actively employ[ing]’ the physical force that results in injury ‘against another.’ ” (alteration in original) (quoting Leocal, 543 U.S. at 9,125 S.Ct. 377)). 3. Categorical Comparison We conclude that reckless assault in Maine is “use of physical force” within the meaning of a “misdemeanor crime of domestic violence.” As noted' above, § 922(g)(9) is meant to embrace those seemingly minor predicate acts, occurring sometimes in moments of passion, where the perpetrator consciously disregarded a risk in light of known circumstances. This often constitutes domestic violence. Reckless assaults in Maine fit that congressional intent for § 922(g)(9), including the paradigm of a domestic assault as described by Senator Lautenberg. As the dissenting judges on the Ninth Circuit, concerned with a different federal statute, explained: Domestic abusers may be drunk or otherwise incapacitated when they commit their crimes, and they may plea bargain down from a felony to a misdemeanor or from a statute that requires a mens rea of intentionality to one that can be satisfied by recklessness. But this does not alter the nature of domestic violence as a crime involving the use of force against someone in a domestic relationship .... Fernandez-Ruiz, 466 F.3d at 1139 (Wardlaw, J., dissenting). Defendants’ position assumes that a reckless act cannot be an act of domestic violence because it lacks volition. But that is not true. For example, suppose Maine convicts a husband for throwing a knife toward his wife, intending to instill fear rather than to cause physical injury, but actually striking her. The mens rea of the conviction would likely be recklessness: in light of the circumstances known to the husband, he consciously disregarded the risk of harm. Such a reckless assault can “subject one intimate partner to the other’s control,” Castleman, 134 S.Ct. at 1411, and is the type of conduct included in § 922(g)(9) even though the husband did not intend to cause bodily injury or offensive contact. Similarly, if Maine prosecutes and convicts a parent for assault for waving a lit cigarette near a child in anger, the cigarette touching and burning the child, that conviction in context may well be an act of domestic violence. The defendants focus their analysis on assaults involving reckless causation of offensive physical contact, rather than bodily injury. We do not see why that distinction is material to the analysis here. The issue is whether § 922(g)(9) encompasses reckless uses of force, regardless of whether the use of force results in bodily injury or an offensive physical contact. If the husband’s knife grazes his wife or harms her grievously, it is an assault all the same. As a practical matter, it is hard to identify a ease of reckless assault in the domestic context that Maine would prosecute but that Congress did not intend to serve as a § 922(g)(9) predicate. See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167.L.Ed.2d 532 (2007) (explaining that the categorical approach focuses on “the ordinary case,” not “every conceivable factual offense covered by a statute”); United States v. Fish, 758 F.3d 1, 6 (1st Cir.2014) (“[I]n assessing whether the elements of the candidate proposed as a predicate crime are overbroad, we need not consider fanciful, hypothetical scenarios.”). Maine will not prosecute all “[mjinor uses of force.” Castleman, 134 S.Ct. at 1412; see Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003) (Evans, J., concurring) (“[Pjeople don’t get charged criminally for expending a newton of force against victims. [The defendant] actually beat his wife.... ”). But some grabbing and slapping “accumulat[es] ... over time,” “subjecting] one intimate partner to the other’s control.” Castleman, 134 S.Ct. at 1412. When it eventually “draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of domestic violence.’ ” Id. After all, not all assaults will serve as § 922(g)(9) predicates, but only those occurring in the domestic context. To be clear, we do not decide that, on the spectrum from negligence to intentional acts, recklessness is always closer to the latter. Cf. Fernandez-Ruiz, 466 F.3d at 1141-42 (Wardlaw, J., dissenting) (“Recklessness is a distinct mens rea, which lies closer to intentionality than to negligence.”). We also do not decide that recklessness in the abstract is always enough to satisfy § 922(g)(9). We decide only that the Maine definition is sufficiently volitional that it falls within the definition of “use of physical force” applied in § 922(g)(9). See Booker, 644 F.3d at 18. C. Our Recent Decision in Carter Does Not Help the Defendants In United States v. Carter, 752 F.3d 8 (1st Cir.2014), we encountered similar facts to this case. We remanded for.the-district court to determine whether the defendant had indeed been- convicted of a reckless assault. The opinion noted that Castle-man “casts doubt” upon Booker, but it explicitly did “not decide” the question before this court. Id. at 18 & n. 11. Now, squarely presented with the issue and having reviewed Castleman, we resolve the question left open by Carter. III. The defendants make three constitutional arguments, none of which are successful. First, the defendants renew their prior argument that § 922(g)(9) violates the Second Amendment as applied to them. They explicitly raise the argument only to preserve it, and for good reason: it is “foreclosed by binding precedent in this circuit.” Carter, 752 F.3d at 13; see Armstrong, 706 F.3d at 7-8; Booker, 644 F.3d at 22-26. Second, the defendants offer a “gloss” on their earlier argument. They suggest that Castleman held that the link between non-violent misdemeanors and domestic violence involving firearms is extremely tenuous, and they argue that such a tenuous link cannot support the law’s constitutionality. To the contrary, Castleman explained that the link between non-violent misdemeanors and domestic violence involving firearms is “sobering,” and hardly tenuous. 134 S.Ct. at 1409. The defendants also raise an argument outside the scope of the Supreme Court’s remand. They claim that § 922(g)(9) violates the Fifth Amendment, Sixth Amendment, and Ex Post Facto Clause because the determination that the predicate crime involves domestic violence is made at the time of the § 922(g)(9) conviction, rather than at the time of the predicate conviction. We have discretion to reexamine issues beyond the scope of the Supreme Court’s specific remand order when “necessary to avoid extreme injustice.” United States v. Burnette, 423 F.3d 22, 25 n. 6 (1st Cir.2005) (quoting United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005)) (internal quotation mark omitted). But “[tjhere is no injustice in refusing to reexamine a • carefully considered decision based on the same arguments that we have already rejected.” Id. at 25 n. 6. The Supreme Court has already rejected arguments very similar to the defendants’ in United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009). The defendants argue that. Hayes was implicitly overruled by a recent Supreme Court decision, Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Hayes held that the determination that an earlier conviction involved a domestic relationship is an element of § 922(g)(9), not the predicate conviction. 555 U.S. at 418,129 S.Ct. 1079. Descamps limited the extent to which courts can look at the facts underlying the predicate conviction to determine whether they fit the subsequent conviction, under the modified categorical approach. 133 S.Ct. at 2281-82. The defendants -argue that, as in Des-camps, the subsequent court may not evaluate the predicate conviction to determine a fact about it — here, whether it involved a domestic relationship. We reject this argument. Whether the predicate conviction involved a domestic relationship is not a fact about the predicate conviction discerned through application of the modified categorical approach, in violation of Descamps. It is an element proved anew in the § 922(g)(9) proceeding. IV. The question before us is a narrow one. We are asked to decide whether a conviction for reckless assault against a person in a domestic relationship in Maine constitutes a federal “misdemeanor crime of domestic violence.” Congress in passing the Lautenberg Amendment recognized that guns and domestic violence are a lethal combination, and singled out firearm possession by those convicted of domestic violence offenses from firearm possession in other contexts. Castleman recognizes as-much. For the reasons stated above, we affirm the judgments of guilt. So ordered. . In February 2012, Armstrong was sentenced to three years of probation and a fine and special assessment totaling $2,600. Also in February 2012, Voisine was sentenced to a year and a day imprisonment on the § 922(g)(9) charge with two years supervised release, concurrent with nine months imprisonment and one year supervised release on the § 668(a) charge, and $125 in special assessments. . United. States v. Palomino Garcia, 606 F.3d 1317, 1335-36 (11th Cir.2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th Cir. 2008); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir.2008); United States v. Torres-Villalobos, 487 F.3d 607, 615-16 (8th Cir.2007); United States v. Portela, 469 F.3d 496, 499 (6th Cir.2006); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127-32 (9th Cir. 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir.2006); Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir.2005) (Alito, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.2001). . All but one of the ten cases cited in Castle-man footnote 8 as deciding the § 922(g)(9) mens rea issue in fact considered other statutes in other contexts and followed the reasoning of Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Six cases analyzed 18 U.S.C. § 16. In Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir.2005) (Alito, J.), the Third Circuit read Leocal to apply to § 16(b), which offered an alternative definition of “crime of violence” to § 16(a), and decided that reckless crimes cannot be crimes of violence under that section. Three other cases from the footnote did the same. See Garcia v. Gonzales, 455 F.3d 465, 467-69 (4th Cir.2006) (interpreting § 16(b), as referenced in an immigration statute); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 559-62 (7th Cir.2008) (same); United States v. Torres-Villalobos, 487 F.3d 607, 614-17 (8th Cir. 2007) (same). Two more interpreted the same provision, but without relying on Leocal, which had yet to be decided. See Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir.2003); United States v. Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir.2001). All of these cases interpreted the term "crime of violence” as part of an aggravated felony statute, and Castle-man is clear that the interpretive rules governing felonies do not apply to misdemeanor crimes of domestic violence. 134 S.Ct. at 1411. Three of the remaining four cases interpreted the term "use of physical force” in the context of a Sentencing Guidelines provision imposing an enhancement for defendants who were deported after committing a felony "crime of violence,” U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A). Each of those cases analyzed the provision by analogizing to § 16 and applying Leocal. For example, in United States v. Palomino Garcia, the Eleventh Circuit explained that both § 16 and the Guidelines provision define the phrase "crime of violence,” and they are "almost identically, worded.” 606 F.3d 1317, 1335 (11th Cir. 2010). It then cited Leocal and the other § 16 cases mentioned above to conclude that a "use of physical force” cannot be reckless. Id. at 1335-36; see also United States v. Portela, 469 F.3d 496, 498-99 (6th Cir.2006); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir.2008). Even if § 16 were analogous to § 922(g)(9), that would not resolve the matter. The Third Circuit has explained that some reckless convictions can serve as predicates for § 16 offenses, depending on the nature of the recklessness. Aguilar v. Att’y Gen., 663 F.3d 692, 698-700 (3d Cir.2011); cf. United States v. Espinoza, 733 F.3d 568, 572-74 (5th Cir. 2013) (allowing a reckless conviction to be a predicate for a violent felony under the Armed Career Criminal Act). . The dissent wrongly relies on our decision in United States v. Bayes, 210 F.3d 64 (1st Cir.2000), for the proposition the federal assault statute requires deliberate action. Id. at 69 (citing 18 U.S.C. § 113(a)(5)). Bayes says that “it is sufficient to show the defendant deliberately touched another in a patently offensive manner without justification or excuse.” Id. In deciding that the statute did not require specific intent, Bayes did not pass on whether recklessness would satisfy the statute. Further, the dissent relies on the rule of lenity, an argument not made by the defendants. . As recognized at 2 LaFave, Substantive. Criminal Law, § 5.4 n. 6, "usage of the term [recklessness] has not been consistent.” See, e.g., United States v. Meeks, 664 F.3d 1067, 1070-71 & n. 2 (6th Cir.2012) (explaining that "recklessness” in Kentucky is a lower standard than "being aware of and consciously disregarding a substantial and unjustifiable risk”). As the dissent observes, while the Model Penal Code definition is similar to Maine's (though not identical), Puerto Rico's definition — until the new statute is in effect-— has language quite different from the Maine statute.
TORRUELLA, Circuit Judge, Dissenting. The majority fails to adequately justify its departure from the Supreme Court’s direction and the analogous decisions of our sister circuits. Indeed, the Supreme Court’s message is clear. In United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), the Court noted that we are the only outlying circuit on this question: our prior precedent is inconsistent with every other circuit court to consider the issue. See id. at 1414 n. 8 (contrasting our past position with that of the Second,. Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals, which have “uniformly held that recklessness is not sufficient” to “constitute a ‘use’ of force”). The Court then remanded the instant cases for reconsideration in light of Castleman, see Armstrong v. United States, — U.S. -, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), implicitly suggesting that we bring our holdings in line with the other federal circuit courts of appeals. We are obligated to heed the Supreme Court’s direction. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991) (“[Fjederal appellate courts are bound by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly; when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.”). Not only are the Supreme Court’s instructions mandatory, but the legal reasoning and analysis in the cases cited by the Court are also correct. • On remand, this ease, requires us to answer, at the very least, one question of statutory interpretation: whether a Maine conviction for the “reckless” causation of an “offensive physical contact” necessarily involves the “use or attempted use of physical force” as required to establish a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. § 922(g)(9). The majority fails to persuasively explain why, ■in all cases, the merely reckless causation of offensive physical contact categorically must involve the “use or attempted use of physical force,” 18 U.S.C. § 921(a)(33)(A), particularly in light of the host of cases strongly suggesting otherwise. As explained herein, these cases hold that the “use” of physical force requires the active or intentional employment of force, which cannot be satisfied by merely reckless conduct. Confronting this question, we are not acting upon an empty stage; rather, we must start with the backdrop painted by the Supreme Court in Castleman, which is the basis for the instant remand. Indeed, the Castleman Court questioned whether the “merely reckless causation” of even bodily injury — much less offensive physical contact — could constitute the “use” of force, noting that “the Courts of Appeals have almost uniformly held that recklessness is not sufficient,” because the “use” of force requires a greater degree of intentionality. ‘Castleman, 134 S.Ct. at 1414 & n. 8. Although the majority opinion correctly observes that those circuit court cases involved different statutes, the operative language is nearly identical and the majority fails to persuasively explain why the result should be different here. All of the analogous eases involved the “use” of “force,” and most interpreted 18 U.S.C. § 16. See id. at 1414 n. 8 (listing cases). Several of these cases analyzed § 16(a), which defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). That language is materially indistinguishable, as relevant here, from the Lautenberg Amendment’s definition of a “misdemeanor crime of domestic violence” as an offense that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. § 922(g)(9); id. § 921(a)(33)(A). “[Wjhen Congress uses the same language in two statutes having similar purposes,- ... it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” Smith v. City of Jackson, Miss., 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). The majority opinion concedes that this case presents a “close” question. Ante, at 177. I agree. Given the Supreme Court and circuit court cases interpreting similar statutes and holding that merely reckless conduct is insufficient to constitute the “use” of physical force, I believe that the rule of lenity also forecloses the defendants’ convictions here. Indeed, it is a “familiar principle” that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’” towards the' accused. Skilling v. United States, 561 U.S. 358, 410, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quoting Cleveland v. United States, 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000)). The rule of lenity bars courts from giving the text of a criminal statute “a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, — U.S. -, 134 S.Ct. 881, 891, 187 L.Ed.2d 715 (2014). In my view, by permitting a conviction based on the reckless causation of offensive physical contact, the government and the majority seek to give the “use ... of physical force” a meaning different from that phrase’s ordinary meaning. The ordinary meaning of the “use” of physical force requires the intentional employment of force, and not the merely accidental, negligent, or reckless use of such force. Cf. Leocal v. Ashcroft, 543 U.S. 1, 4, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (giving an ordinary and natural reading to the phrase “ ‘use ... of physical force against the person or property of another,’ ” and holding that this phrase requires “a higher degree of intent than negligent or merely accidental conduct” (quoting 18 U.S.C. § 16(a))); id. (explaining that “‘use’ requires active employment,” and reasoning that “a person would ‘use ... physical force against’ another when pushing him ... [but not] by stumbling and falling into hini”); García v. Gonzales, 455 F.3d 465, 468 (4th Cir.2006) (holding that “the use ... of physical force” requires the intentional employment of physical force).. Moreover, given that the Supreme Court has stated that (1) “the merely reckless causation of bodily injury ... may not be a ‘use’ of force,” and (2) “the Courts of Appeals have almost uniformly held that recklessness is not sufficient” to constitute the “use” of force, Castleman, 134 S.Ct. at 1414 & n. 8, I cannot see how the proper application of the rule of lenity permits affirmance of the defendants’ convictions. I express no opinion here on whether the “use” of physical force is satisfied by either the reckless causation of bodily injury or the intentional or knowing causation of offensive physical contact. Rather, I confine my inquiry to one subsumed offense under the Maine assault statutes: the reckless causation of offensive physical contact. Although the majority states that they fail to see why the distinction between “bodily injury” and “offensive physical contact” “is material to the analysis here,” ante, at 185, I explain herein why that distinction matters. See infra Section 11(B)(1). Namely, even if recklessness were a sufficient mens rea for purposes of bodily injury, a conviction under the Lau-tenberg Amendment nonetheless cannot rest on the reckless causation of offensive physical conduct in Maine. The Supreme Court has stated that, under the Lautenberg Amendment, Congress classified as a “ ‘misdemeanor crime of do- ■ mestic violence’ ” “the type of conduct that supports a common-law battery conviction.” Castleman, 134 S.Ct. at 1411. The Supreme Court has further explained that “the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another.” Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis added); see also United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000) (“[T]he common law provided that an assault committed by way of a battery did not require an intent to cause or to threaten an injury as long as the defendant touched another in a deliberately offensive manner without a valid reason to do so.”) (emphasis added); State v. Rembert, 658 A.2d 656, 658 (Me.1995) (stating that “[ujnpermitted and intentional contacts ... [are] actionable as an offensive contact”) (emphasis added); cf. Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(c)(2) n. 32 (2d ed.) (“[Wjith the tort of battery an intention to injure or touch offensively is needed”); Black’s Law Dictionary 182 (10th ed.2014) (defining tortious battery as a “nonconsensual, intentional, and offensive touching of another without lawful justification”) (emphasis added). To trigger a violation of the Lau-tenberg Amendment, therefore, the relevant precedent counsels that the offensive touch must be caused intentionally and not merely recklessly. By contrast, the Maine statutes at issue here permit conviction for recklessly causing an offensive touch. Therefore, a conviction under either of the Maine assault statutes implicated here does not categorically establish a violation of . the Lautenberg Amendment. Given that the record does not permit a conclusion that the defendants’ Maine convictions rested on a subsumed offense that does constitute a violation of the Lautenberg Amendment, the federal convictions at issue here cannot stand. After giving careful consideration to the issues involved, engaging in the necessary statutory interpretation and legal analysis, and applying the relevant precedent, I heed the Supreme Court’s direction and follow the lead of our sister circuits in disagreeing with the majority’s conclusion. Therefore, I respectfully dissent. I. Legal Background A. The Statutory Framework 1. The Lautenberg Amendment The defendants here were charged with violating the Lautenberg Amendment to the Gun Control Act of 1968, now codified at 18 U.S.C. § 922(g)(9) (the “Lautenberg Amendment” or “ § 922(g)(9)”). Under the Lautenberg Amendment, it is unlawful for any person “who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(9). For these purposes, a “misdemeanor crime of domestic violence” is further defined in 18 U.S.C. § 921(a)(33)(A) as an offense that: (I) is a misdemeanor under Federal, State, or Tribal 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 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, or by a person similarly situated to a spouse, parent, or guardian of the victim[.] Id. § 921(a)(33)(A) (emphases added). 2. The Relevant Maine Assault Statutes The defendants argue that the relevant Maine assault statutes do not “ha[ve], as an element, the use or attempted use of physical force.” See id. Under Maine law, a defendant is guilty of “domestic violence assault” if (1) the defendant violates the Maine simple assault provision, and (2) “the victim is a family or household member.” See Me.Rev.Stat. tit. 17-A, § 207-A(l)(A). Turning to the simple assault provision in the Maine Criminal Code, a person is guilty of “assault” if “[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.” See § 207(1)(A). Thus, there are six different, divisible permutations of the Maine simple assault statute, each of which can form the basis for a section 207 assault conviction. United States v. Carter, 752 F.3d 8, 17-18 (1st Cir.2014) (“The Maine general-purpose assault statute is divisible into six permutations of subsumed offenses, based on the combination of one element from each of two categories: (1) mens rea (‘intentionally, knowingly or recklessly’), and (2) actus reus (‘causes bodily injury or offensive physical contact to another person’).” (quoting § 207(1)(A))). These six subsumed offenses are illustrated in the following chart: The six variants of the Maine simple assault statute: Maine simple assault Actus Reus statute, Me.Rev.Stat. tit. 17-A, . . .causes bodily injury. . . .causes offensive physical § 207(1)(A) contact. Intentionally 1. Intentionally causes bodily in- 4. Intentionally causes . . . jury. offensive physical contact Mens Rea Knowingly 2. Knowingly causes bodily 5. Knowingly causes offensive . . . injury. physical contact. Recklessly 3. Recklessly causes bodily • 6. Recklessly causes offensive ... injury. physical contact. In Maine state court, Armstrong was convicted of Maine domestic-violence assault under section 207-A, and Voisine was convicted of Maine simple assault under section 207. These prior convictions served as the predicate offenses for the defendants’ § 922(g)(9) charges, which are the subject of the instant appeal. A simple assault statute lacking a domestic-relationship element (such as Voisine’s prior offense of conviction in Maine) can nonetheless serve as the predicate offense for a misdemeanor crime of domestic violence, so long as the domestic-relationship element is proved in the subsequent federal prosecution. See United States v. Hayes, 555 U.S. 415, 418, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (holding “that the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense”). B. The Categorical and Modified Categorical Approaches Given the foregoing statutory framework, we must analyze whether the elements of the Maine assault statute necessarily fulfill the requirements of the Lautenberg Amendment. In cases such as this — where a court must decide whether a prior conviction for an earlier offense (like assault) satisfies one of the elements of the offense in a subsequent prosecution (here, for example, whether the earlier offense “has, as an element, the use ... of physical force,” 18 U.S.C. § 921(a)(33)(A)) — the court determines whether it is appropriate to apply the categorical approach or the modified categorical approach. 1.The Categorical Approach In Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court described the categorical approach, under which courts “look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” See also United States v. Dávila-Félix, 667 F.3d 47, 56 (1st Cir.2011) (same). If the “statutory definition” of the prior offense necessarily meets the requirements of the subsequent offense at issue, then the court can determine that a conviction for the prior offense categorically constitutes a valid predicate offense for purposes of the later prosecution. See Castleman, 134 S.Ct. at 1414. 2. The Modified Categorical Approach Some statutes, like the Maine assault statutes at issue here, are “divisible”: they “set[] out one or more elements of the offense in the alternative.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). For these statutes, some permutations or variants of the subsumed offenses may categorically meet the requirements of the subsequent offense, whereas others may not. Accordingly, for these divisible statutes, courts may apply the' “modified categorical approach” to determine which variant or subsumed offense formed the basis for the prior conviction, and thus whether that prior conviction can serve as a valid predicate offense for the subsequent prosecution. See Castleman, 134 S.Ct. at 1414. Under this approach, a court may “consult[ ] the trial record — including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms” — in order to “determine which statutory phrase was the basis for the conviction” under such a divisible, statute. Johnson, 559 U.S. at 144, 130 S.Ct. 1265. These documents are often called “Shepard documents,” after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion). See, e.g., Carter, 752 F.3d at 19-20 & 19 n. 12. 3. Application Under established precedent not called into doubt by Castleman and not challenged here, certain subsumed offenses under the Maine assault statutes (such as the intentional or knowing causation of bodily injury) are unequivocally valid predicate offenses for the Lautenberg Amendment. See Castleman, 134 S.Ct. at 1415 (“It is impossible to cause bodily injury without applying force in the common-law sense,” and “the knowing or intentional application of force is a ‘use’ of force.”). If the Shepard documents showed that the defendants’ prior assault convictions were for those particular subsumed offenses, for example, then we would be able to apply the modified categorical approach and affirm the defendants’ Lautenberg Amendment convictions without reaching the recklessness issue. See Carter, 752 F.3d at 18 n. 11 (reasoning that under the modified categorical approach, if the Shepard documents showed that the defendant’s prior Maine conviction was for intentional or knowing conduct, then the court could affirm his conviction under the Lautenberg Amendment). The parties agree, however, that the Shepard documents for Armstrong’s and Voisine’s underlying Maine convictions are inconclusive and do not reveal which variants of the Maine assault statutes served as the bases for their convictions. Therefore, the modified categorical approach cannot resolve this appeal. Rather, we must apply the categorical approach to determine whether the statutory definitions of the Maine assault provisions necessarily include the “use or attempted use of physical force.” See 18 U.S.C.. §§ 921(a)(33)(A), 922(g)(9); see also Castleman, 134 S.Ct. at 1414. Under the categorical approach, if any one of the six variants of the Maine assault statute does not necessarily constitute the “use ... of physical force,” then the defendants’ convictions must be reversed. Put differently, to affirm the defendants’ convictions under the categorical approach, all of the subsumed offenses under the Maine statute must have the “use or attempted use of physical force” as an element. 18 U.S.C. §§ 921 (a)(33)(A); see also United States v. Holloway, 630 F.3d 252, 257 (1st Cir.2011) (stating that under the categorical approach, “the [prior] conviction may only serve as a predicate offense if each of the possible offenses of conviction would qualify” as individually satisfying the offense in the subsequent prosecution (citing Shepard, 544 U.S. at 26, 125 S.Ct. 1254)). The defendants focus their argument on the sixth and least severe subsumed offense: the “reckless” causation of “offensive physical contact.” Therefore, we must apply the governing precedent to decide whether this statutory definition necessarily involves the “use ... of physical force.” C. The Supreme Court’s Decisions in Leocal and Johnson The Supreme Court’s opinions in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), provided foundational reasoning for subsequent cases relevant to this appeal. In both of these cases, the Supreme Court engaged in statutory interpretation to determine whether the offenses underlying prior state convictions had, as an element, the “use” of physical force as required for purposes of a subsequent federal proceeding. 1. Leocal In Leocal, the Supreme Court examined a similar question to that facing us today, regarding parallel language in the statutory definition of a “crime of violence” under 18 U.S.C. § 16(a). Under that statute, a “crime of violence” includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (emphasis added). The petitioner in Leocal had previously been convicted in Florida state court for driving under the influence of alcohol (DUI) and causing serious bodily injury. Leocal, 543 U.S. at 3, 125 S.Ct. 377. The Supreme Court held that the petitioner’s DUI conviction was not a crime of violence under 18 U.S.C. § 16. Id. at 4, 125 S.Ct. 377. In so holding, the Court explained that “ ‘use’ requires active employment,” reasoning that “a person would ‘use ... physical force against’ another when pushing him ... [but not] by stumbling and falling into him.” Id. Giving the operative phrase- in 18 U.S.C. § 16(a) its ordinary and natural reading, in context, the Leocal Court held that the “ ‘use ... of physical force against the person or property of another’ ” requires “a higher degree of intent than negligent or merely accidental conduct.” Id. (quoting 18 U.S.C. § 16(a)). The Court also interpreted parallel language in 18 U.S.C. § 16(b), giving that language “an identical construction” and “requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense.” Id. at 11,125 S.Ct. 377. Additionally, the Court considered the fact that it was “ultimately ... determining the meaning of the term ‘crime of violence.’ ” Id. It reasoned that “[t]he ordinary meaning of