Domestic Assault by Habitual Offender – 18 U.S.C. § 117 Sentencing Guidelines

Thanks for visiting Spodek Law Group, a second-generation firm managed by Todd Spodek with over 40 years of combined experience defending clients against federal charges most attorneys never encounter. When prosecutors charge domestic assault by a habitual offender under 18 U.S.C. § 117, they’re not just alleging you committed domestic violence—they’re alleging you’re a *repeat* offender with at least two prior domestic violence convictions. Maximum sentence: **5 years**. This statute functions as a sentencing enhancement, transforming conduct that might otherwise merit months into federal felonies carrying years. The constitutional concern: whether prior convictions—often misdemeanors resolved through pleas years earlier—should quintuple maximum sentences for subsequent offenses.

The Two-Strike Rule

Section 117 requires proof of three elements:

• **Domestic assault** – Any assault defined by 18 U.S.C. § 113(a) (ranging from simple assault to assault with intent to murder) committed against a spouse, intimate partner, or dating partner
• **Two or more prior convictions** – For domestic violence offenses against the same victim or different victims. These can be state or federal convictions, misdemeanors or felonies, from any jurisdiction.
• **Special jurisdiction** – The assault occurs in Indian country, special maritime jurisdiction, or special territorial jurisdiction where federal law applies

The “habitual offender” designation doesn’t require prison time on prior convictions, just convictions themselves. Someone with two misdemeanor domestic violence convictions from years ago—each resulting in probation—qualifies as a habitual offender under § 117 if they commit a third domestic assault on federal property. That third incident, which might be simple assault (ordinarily 6 months maximum), now carries a 5-year maximum under § 117.

What Counts as a “Prior Conviction”

The statute doesn’t limit qualifying priors to § 117 convictions or even to federal offenses. Any conviction—state or federal—for domestic violence qualifies if it meets the definition in 18 U.S.C. § 2266. That includes:

• *State domestic violence misdemeanors* – Simple assault, battery, domestic battery convictions from state prosecutions count toward the two-prior requirement
• *Convictions predating § 117* – The statute took effect in 1994; convictions before then still qualify as predicates
• *Military convictions* – Court-martial convictions for assaulting intimate partners qualify
• *Tribal court convictions* – In some circuits, tribal court domestic violence convictions may count, though this remains contested

Defense challenges focus on whether prior convictions actually involved domestic relationships as defined federally. A state conviction for assault doesn’t automatically qualify—prosecutors must prove the victim was a spouse, intimate partner, or person in a dating relationship with the defendant at the time. Evidence that prior assault victims were strangers, acquaintances without romantic relationships, or family members outside the intimate partner definition defeats those predicates.

Federal Sentencing: Offense Level 10-28

Under Federal Sentencing Guidelines, § 117 violations receive base offense levels corresponding to the underlying assault type. A habitual offender who commits simple assault (§ 113(a)(5)) starts at offense level 4, then receives enhancements for prior convictions under §4A1.1 (criminal history). Someone with two prior domestic violence convictions likely sits at Criminal History Category II or III, increasing guideline ranges.

But courts may also apply the domestic violence enhancement under §2A2.2 commentary, adding levels for pattern behavior. The guidelines recognize that repeat domestic violence demonstrates persistent danger to victims and warrants increased sentences beyond what criminal history alone captures.

Practical sentencing ranges for § 117 convictions (assuming Category II):

• *Third simple assault* – 6-12 months guideline range
• *Third assault by striking/beating* – 10-16 months guideline range
• *Third aggravated assault* – 24-30 months guideline range

These ranges reflect both the underlying offense severity and criminal history from prior convictions. Judges retain discretion under § 3553(a) to vary, considering the pattern of violence, time elapsed since prior convictions, and evidence of rehabilitation efforts.

Why Federal Jurisdiction in Domestic Violence Cases

Most domestic violence is prosecuted by states. Federal jurisdiction under § 117 typically arises in three contexts:

**Indian country.** Domestic violence on reservations often falls under federal jurisdiction through the Major Crimes Act or because tribal courts lack jurisdiction over non-Indian defendants. FBI investigates, U.S. Attorneys prosecute, and federal courts sentence. The Violence Against Women Act expanded tribal court authority, but jurisdictional gaps remain, particularly in cases involving non-tribal members.

**Military bases.** Service members who assault intimate partners in on-base housing face federal prosecution under § 117 if they have qualifying priors. The military justice system might also charge them under UCMJ, creating parallel prosecutions or requiring coordination between military and civilian authorities.

**Federal facilities.** Domestic assaults occurring in federal courthouses, VA hospitals, national parks, or other federal property trigger federal jurisdiction. Someone who assaults their partner during a visit to a federal building can be charged federally, especially if prosecutors discover qualifying prior convictions.

The Firearms Prohibition Problem

Anyone convicted under § 117 becomes prohibited from possessing firearms under 18 U.S.C. § 922(g)(1) (felons) and § 922(g)(9) (domestic violence misdemeanants). That prohibition affects employment for law enforcement, military service, security contractors, and hunters. For defendants whose livelihoods depend on firearm access, avoiding § 117 convictions becomes critical—even if it means accepting longer sentences for non-domestic-violence offenses.

Defense strategy when firearms prohibition threatens employment: negotiate to non-domestic violence charges if evidence permits. If the assault occurred on federal property but didn’t involve an intimate partner, charge simple assault under § 113(a)(5) instead of § 117. If the relationship doesn’t meet the federal definition of “intimate partner,” contest the domestic nature of the offense. Preserving firearm rights sometimes matters more than sentence length.

Challenging Prior Conviction Predicates

Defense begins by scrutinizing whether prior convictions actually qualify. Obtain certified copies of prior judgments, charging documents, and plea transcripts. Question whether:

• *The prior victim was actually an intimate partner under federal law* – Roommates, friends, or family members who weren’t spouses/dating partners don’t qualify
• *The defendant was represented by counsel* – Uncounseled misdemeanor convictions resulting in incarceration may be constitutionally invalid as predicates
• *The conviction involved physical force* – Some states allow domestic violence convictions based solely on emotional harm or threats; these may not qualify under federal definitions requiring use of physical force
• *Prior convictions were expunged or set aside* – Some jurisdictions allow conviction expungement; whether expunged convictions still count as predicates remains contested

Successfully challenging even one prior conviction drops the case from § 117 (5 years maximum) to § 113 (likely 6-12 months maximum for simple assault). That reduction—from years to months—justifies the investigative effort required to track down decade-old court records from multiple jurisdictions.

Pattern Violence and Sentencing

Courts view habitual domestic violence offenders harshly. Judges recognize that repeat violence against intimate partners demonstrates danger that incarceration must address. Prosecutors present victim testimony about sustained abuse, protective orders violated, escalating violence over time. That narrative—of defendants who continue violence despite prior convictions and court orders—creates pressure for maximum sentences.

Defense must present competing evidence showing changed circumstances: substance abuse treatment completed since prior convictions, mental health care addressing underlying issues, employment stability, family support, testimonials from counselors documenting progress. Argue that prior convictions occurred during different life circumstances—active addiction, untreated mental illness, economic instability—that no longer apply. Demonstrate that time since the last incident (months? years?) indicates the pattern has broken.

Courts remain skeptical. Someone charged under § 117 has committed at least three domestic violence offenses. Convincing judges that *this time* rehabilitation has occurred requires overwhelming evidence of transformation. But when that evidence exists—documented sobriety, stable employment, successful counseling—it can yield sentences far below statutory maximums or guidelines ranges.

Todd Spodek built this firm defending clients where prior convictions—sometimes decades old, often misdemeanors resolved through hurried pleas with minimal attorney involvement—created catastrophic sentencing exposure for subsequent offenses. Our representation of clients in high-profile cases taught us that challenging prior convictions as predicates requires tracking down archived court records, investigating whether prior pleas were knowing and voluntary, and demonstrating that prior offenses didn’t actually meet federal definitions requiring physical force against intimate partners. When defendants face 5-year maximums because of prior convictions they barely remember, because public defenders advised quick pleas without explaining future consequences, constitutional concerns about using those convictions as predicates deserve serious litigation. If you’re charged under § 117, contact us immediately. Challenging prior predicates requires time—obtaining records from courts that might have destroyed files, locating defense attorneys who represented you years ago, reconstructing facts from cases long closed. We’re available 24/7 because these cases involve both immediate custody decisions and long-term consequences (firearms prohibitions, immigration impacts) that affect clients’ lives permanently.