my name is nicole library and i'm an assistant federal defender in little rock and i am here on behalf of cornelius coleman the issue before this court this morning is whether the arkansas kidnapping statute qualifies as a violent felony for purposes of enhancing mr coleman under the arm career criminal submit to this court that it does not meet the force clause requirement because restrain without consent as defined by the state of arkansas includes an element that may be committed by deception which inherently means that there is no force required to violate this statute so on its face the statute should not qualify for the armed criminal act which in turn means that the court does not need to resort to the modified categorical approach the entire statute should to the crime qualifying for there was an objection but it was that this judgment has you know multiple offenses one judgment should count as one conviction the district court overruled that and then this circuit addressed it and took up the issue raised for the first time an appeal whether this statute violated the armed criminal act and that is the circumstance that i would present before the court while there was not an objection made that this court still should address this east in any sense the objection was simply that the residual clause is unconstitutionally vague and the court addressed the arkansas robbery statute as to whether it violated the fourth clause and found that it did not and in addition to that i would ask the court to consider that by an and of course if a defendant is enhanced under the arm for a criminal act that inherently materially alters not only the statutory range but also the guideline so for that reason the court should consider this and this would overcome the plane and her approach not count then he would not have been enhanced under our current criminal act so i asked the court to consider that and decide this case on the merits as it relates to the merits of the case and the deception argument mitchum and kelly are both cases that are state cases that we cited in our brief wherein essentially in two separate circumstances the defendant restrained a victim by deception by telling them in one case i'm going to take you to the movies and then took them to under another portion of the statute as well another i think it is don't you think under the way they define restrain without consent it has to be in a case where the person's under fourteen it goes by the parents consent not by deception c middle of nowhere and that's how the court finds it wherever that might be in the state of arkansas and so it's clear that there's not there is not a restraints on it for sure acquirement require and deception is incredibly important because we don't even have to get to the means vs elements announces because that is in the first part of how you actually violate this statute so you're relying on the subsection a the very first line of the statute yes your honor and i would statute is not visible because the nefarious purposes that are listed are means they're not elements of it and why is that what what's your best argument either in the jury instructions or arkansas case why why are these meetings your honor i would ask the court to consider in light of matters of course it's very important we look at how the state court handles this there's three arguments that show clearly that the state routinely handles these  first of all the jury instructions that are actually submitted to the jurors now the jury instruction itself we both parties have cited in our proof it's before the court it has bracketed language and i think is not necessarily clear on its face that you would have to just include one element but for example in the sasser case the jury instructions submitted included two of the bracketed language in this instance the jury instruction meaning that there were two means with which the jury could find that this defendant violated to my knowledge it's correct and additionally the state rule of criminal procedure requires the state prosecutors only alleged one offense per charge in an information and you know what section that is that is in your brief yes your honor because it's january your criminal procedure twenty one point one thank you and in that sense we see routinely and we've cited them in the brief where prosecutors are charging informations with two or three of these nefarious purposes alleged you mean with an account to within one can yes your honor so those that indicates that those are means we're not requiring a jury finding on which one it is and so we can't i mean kind of the tenant of the armed criminal or in the law in this area is that we need to be sure when we're enhancing someone's sentence that they actually committed something that violates the fourth class right but is that isn't the argument the it's an element that is if if somebody commits the conduct a and all they did they do is what gets you down to the cold when they they restrain someone by deception and say they you have to do more than that yes or you can't you can't different in practice than it treats this statute that's the distinction here and right you can see distinctly that every charging document alleges one specific portion requiring a jury finding on one specific element of that statute and we know that an element i'm trying to i'm trying to conceptualize this deception issue even if you are an issue we take someone by deception using the case you cited were you to come up the middle of nowhere at some point they're going to say i don't want to go to the middle of nowhere arkansas  and secondly when proving that mr coleman kidnapped the victim with the intent to terrorize under that subsection eighty six the state had to present evidence that the defendant either used or threatened to use force to sustain that conviction  necessarily on the restraining element set on the intent required to terrorize in this case i think that are one of the distinctions that we have is that restraint is defined just as in the court  mathis had a definitional provision at issue restraint is defined separately and so i think that we have a much harder argument to make that the restraint element in and of itself is divisible and that's why we're relying on the problem a  you could have multiple and aren't of the cases they're cited in the various and sometimes the jury instruction on more than instruction on more than one but they have to be unanimous on each up in your honor that i cannot find any case law regarding the  doesn't see that the jury instructions the jury sees the form if the jury's given two of these you know i just said that they can give them two or three of these right correct your and ok that's your view and do they have to be unanimous on each of them  can they be unanimous and six jurors me for one of them in six years we've or another it's our position that the jurors have to be unanimous on the specific court that that would be you know something that they would have to address that we have to see them address that issue specifically on all charged in the same count so the description the judgment and it's given there's three up on that's all that's one be a case where we can't prove i mean our garden under shepherd or taylor because there may be included in the charging document there may not be there on the record what the jury was unanimous on whether they  charged under progress that would make a violent felony they do that and it seems to me that i think you could make a pretty good argument that one through six are probably seven is going to be i think i'd be hard pressed to are you that that necessarily were cars the use of force i mean i know the statute of if i read the statute correctly if i call my political point of the office and say the time of the debasement change from seven to eight and they show up at eight o'clock and missed the debate that's kidnapping and never seen that charge since i can't say whether that would be sustained under arkansas law i think you do have to somehow you know hold the person  thought it was a matter of law and looking at the law of arkansas what's the best case to help us on the the real issue here your honor well with respect to the violent weather as the crime of violen insufficient evidence on an attempted kidnapping where there was no threats for that if it made no threats or threatening moves and did not attempt to use and night as a weapon because no threat means no crime that's what the arkansas supreme court says and so  whenever you look at the the lamp case it's a similar situation where you have the the court pointing out that it can hardly be disputed that command to get in a van from an older unknown man moving towards a minor can reasonably be interpreted as a threat these cases talk about threats the reason they talk about threats is because that's what terrorizing someone it is threatening in the dictionary definition support that you have the merriam webster dictionary which talks about terrorizing as to fill  terror anxiety into coerced by threat violence you have black's law dictionary talking about terror as extreme fear and one or more violent acts that cause extreme fear and so there's a link between the terrorism that's required of the victim in these cases and the threat and use of force at a minimum oftentimes there is an actual use of force but in some cases there is a threat and use of force and so i think that those are the best case is that in terms of the solomon case where the district court is striking one of the the purposes that was alleged that also supports the finding that this is divisible and the lamb case that this court in twenty seventeen found that referencing one alternative terms the exclusion of all other shows that it's an element essentially and in this court and there's been an author of the opinion in miers and miers the court you know had issue with whether or not arkansas law was clear and so if that's the that you do exactly what you do in miers in miers if you think that the law is not crystal clear on the unanimity issue or otherwise then you can look to the charging document in this case the charging document in this case charge mr co if you can think of no not in fanciful non theoretical manner in which the commit the crime without physical force then it's a violent felony i can think of no way to commit the kidnapping statute under  you know controlling but even there if you're in a clinic per close proximity in a car i think that you're threatened with force with somebody who is has a gun and started to shoot themselves and the same goes for the other cases cited by the fence counsel a few points in closing out ask the court to look to the arkansas supreme court's decision in santa for in which the court stated this is a case where the jury instruction listed two purposes and they were different than what the information one of them was material to and from what the information charge the supreme court said neither nature nor degree of the crime was changed only the method by which the crime was accomplished and that indicates means your honor additionally it us the court to consider the baumgardner case which also states an amendment means change and information was proper because it did not change the nature of kidnapping just the manner in which it was accomplished additionally waters jackson and hampton cases where in that information's charged multiple means of violating the kidnapping statute and it was not required to have a unanimous jury decision are the cases you just mentioned in your brief yes your honor they all are yes right thank you very much thank you both for the argument case eighteen dash twenty four hundred is submitted for decision by this court