speak right into that microphone and keep your voice up thank you very much mr harris should not have been sentenced as an armed career criminal because the documents presented at his kind of thing did not establish that his prior conviction for attempted  degree assault was premised on intentional conduct as is required under the arm a career criminal act senate in a federal sentencing proceeding typically any fact that enhances a statutory maximum or minimum penalty must be submitted to a jury and found beyond a reasonable doubt subject to one exception and that is the fact of a prior conviction because that is the one fact that a district court is permitted to find there are safeguards in place to ensure that those th amendment rights are still protected two of those are one the district court is limited in the documents that it can look to shepherd documents and the nd is that the purpose of those documents and the facts listed in those documents serves only to permit the court to determine under what elements a defendant was previously argue that because in his prior state courts the colloquy mr harris never affirmed that the facts are correct that wouldn't qualify as a shepherd document but even assuming that it would the factual basis provided in support of that plea does not establish that mr harris committed his attempted assault recklessly because it contains no mention of his intent let me ask you about the st point that you raised you argue it looks to me like for the st time on appeal that he never assented to the factual basis in the cola quick you've made no such argument in the district court that you and fact it looked to me when i looked at it that you said in the st portion of the sentencing hearing as i understand it it was bifurcated there were two times that he was at it but in the st time counsel said quote i don't agree with the government's assertion that it is clear that it shows which section he pled to because as we stated earlier there was never a dispute about the facts there is a very big dispute as to which prime he was convicted under i understood the argument in the district court to be not that the facts were not accurately recited but simply that accepting them as true you still couldn't tell which of the five possibilities he pled under did i misunderstand of the p s i and as i read it mr harris did not object to the p s i's inclusion of any factual basis so i started with an tell me if i have misapprehended this with the proposition that there was no dispute about the underlying facts there was a dispute about whether you could tell from the underlying facts whether he pled to the st nd rd th or th iteration of the statute that was the issue you were racing and that is the heart of the argument but i heard you to be saying here today something different that he never agreed to those facts as opposed to yeah we don't  facts but we still can't tell what he pled to there are two theoretical possibilities you're claiming the facts were never assented to and therefore cannot be accepted as true or yeah the facts we didn't really quarrel with but it doesn't heal the answer to which of the five possibilities he pled to that with the latter is what i understood you to be arguing in the district court but i hear you day to be making both arguments have i misunderstood this  know well why should we consider the st argument now at all why didn't you waive it abandon ever when you never raised it in the district court and to the contrary told the court that you never disputed the facts you certainly led him to believe that you were accepting the facts for whatever it was worth you weren't quarreling with the facts if in the heart of my question i do your honor and i'm just trying to see what's probably before us i understand the argument the nd argument which is that accepting the facts is true you still can't tell what he pled to but i understood you to be making an additional argument here that we don't accept the facts and that was different from what was raised in the trial court are you making both arguments before us or just the nd argument that you can't tell what he pled to i making b circuit had to address united states versus kennedy and in that case it dealt with the massachusetts assault and battery conviction and the court assuming argumenta said that this could be potentially committed intentionally or recklessly kicked him he fell and hit his head on a pole and they continue to kick him on the ground but it never contained an explicit reference to his intent a little bit different here the wording of the colloquy is that after his brother was in an al n with some other folks at a gas station during the course of the altercation witnesses observed the defendant come out of his vehicle with a pistol and begins shooting at the two cheating at the two thomas brothers one was hit multiple times the other had fragments seven bullets had were fired seven shell casings were found by the language of saying he's shooting at the two brothers does that not suggest in not necessarily your honor in fact one of the because you can shoot at someone and not have the specific intent to cause injury this but if you've got a gun with seven bullets in it and they all are coming at that person you can have no intent to actually hurt them yes your honor and now how would that be for example if he was shooting towards these men to startle them included in the factual basis that they were attacking his brother and he came out of the vehicle if he was trying to startle them scare them away it's potential he could have potentially been acting recklessly but not with the specific intent to shoot the men i mean in fact the commentary to the alabama statute suggests that one potential way of committing reckless assault is shooting into a crowd but without the specific intent to injure a person and here nothing confirmed mr harris his intent let me come at the question differently let's accept that is so under alabama law is it not clear that the only way you can commit and attempt to commit a crime is if it's done with these prosecuted potentially reckless conduct as an attempt for example we cite to both the weeks case and ex parte hollander and those cases involved individuals f recklessly i would argue that i was standing what the statute says we argued that alabama has exhibited that it will prosecute cases that way and that is under moncrief the holder that is one way to establish a reasonable may please the court provision question of for the united states attempted recklessness is an oxymoron as far as alabama law is conserved under alabama law it is not possible for somebody to be convicted for intending to act recklessly therefore under the categorical approach mr harris is conviction for st attempted st degree assault is categorically a violent felony under the elements clause because the only provisions that could have supported that conviction are either assault with the intent to cause serious physical injury or intent or assault with the intent to cause permanent damage to a victim organs and there's been no dispute that either of those provisions would qualify as a violent felony it is impossible for mr harris to have been convicted for intending to recklessly cause serious physical injury we have pointed this court to the stand that decision which holds point blank that attempted manslaughter is a nonexistent offense under alabama law and i think that mr harris in the reply brief cites the minshew decision from the alabama court of criminal appeals that decision holds that attempted reckless endangerment is a nonexistent fent offense as well now instead of focusing on the elements mr his argument against the categorical approach makes the classic mistake that we often see in the sentencing that handsome in cases of confusing facts with elements we agree that there have been circumstances there have been cases where an alabama defendant was convicted of an attempt offense and that conduct could have supported a completed reckless conviction as well but that's really irrelevant to the issue that we have here because none of those cases ever involve an attempt offense with an element of recklessness and there's no surprise that sometimes a completed reckless offense and attempt conviction could overlap and attempt conviction requires that the defendant take an overt act and in some circumstances that overt act mights expose the victim to a substantial risk of serious physical injury and one of our look whether he pled under a winery to without actually looking at the shepherd documents i don't think that i don't think the shepherd documents are particularly clear i mean i think that actually i take that back i think the shepherd documents would further support a conviction under a one but under the categorical approach and i'm simply asking a different question i'm asking you whether or not  alabama law that necessarily required that the mens rea a was specific intent and you look at the statute there are two possible intents under a with intent to cause serious physical injury to another person he or she caused a serious physical injury by means of a deadly weapon or a dangerous instrument or two with intent to disfigure etc without looking at the shepherd documents you couldn't tell which of the two it was could you know you couldn't your honor your answer is it hardly matters because either require intent that's require intent but if you wanted to know which it was you want to clarify that would not the sheppard documents make that crystal clear i think that they would by a process of elimination right because at the very least the shopper documents certainly contain no information about damaged organs or the body or anything of that sort the idea of shooting out somebody multiple times and doing so with intent there's no evidence from that that was an intent to cause her permanent disfigurement or to destroy amputate or disable that in that state of facts he just shot that weapon twice and it struck two people and they were injured that's all we know from the shepherd criminal appeals i think that makes crystal clear that the idea of shooting at means that the person the defendant aimed at the victims and if the defendant aimed at the victims necessarily acted intentionally and so the facts will basis that's provided in this shopper document provides further support for the enhancement your colleague recognizes that the statute is clear that any attempt under alabama penal code requires specific intent but she says that when you look in fact at these st degree assault you will find cases under alabama law where they actually applied recklessness rather than specific intent and she cites weeks of the state as an example of that right i mean weeks vs state i believe statute has basically been on it in the breach and that they've gone with this basis well that is what i take her argument to pay i think she cites weeks for it and then she cites to a dissenting judges opinion an ex parte a hollander those are the two sides she offers that's right and i think you don't currently not respond to the nd one but what about weeks i don't believe the issue in weeks involve the question of attempted reckless i believe she's tied into the factual recitation in the week's decision but that doesn't there's no holding by the court of criminal appeals that intent for the purposes of attempted assault means the same thing as recklessness elsewhere in the alabama criminal code i believe that that's just a case where a person was convicted of an attempt assault and also i think and reckless endangerment conviction as well there simply and that goes back to the point i was making earlier about this is an argument that really just relying on the facts rather than the elements of weeks is certainly not a case and i believe that the opening brief conceded this it's not a case where the court of criminal appeals held that recklessness was sufficient to constitute intent for an attempted conviction and furthermore even if we were to look at this shooting as reckless and nature i think we face another problem which is we still have an attempted assault conviction and so if in if we were to say that the shooting was reckless it's difficult to see how this would be an attempt because whatever reckless conduct mr harris wanted to commit he successfully committed he the shooting was complete the gun didn't misfire there's no evidence that someone interrupted him and so if this is reckless conduct it was complete and reckless conduct so the model so the factual basis and the modified categorical approach provides another reason for forming the sentence below i'm happy to answer any other questions this court might have otherwise we ask the thanks very much  think i did just want to kind of piggyback off of what he's saying yes what we are arguing is somewhat practice based and looking to the fact that people were convicted under but nonetheless those facts are evidence of what kind of cases the state of alabama prosecute and in determining whether plea is reasonable this is the kind of thing that attorneys look to so they are relevant to this decision i also wanted to just reference the statement on shooting at and this flight to alabama case law indicating that that can be intentional conduct what those cases establish that a jury can infer based on someone shooting at another person and they can infer intent there but that's not the role of a federal sentencing court in a sentencing proceeding and that's not the purpose that that's not the purpose that didn't the alabama court of criminal appeals make clear that to be convicted of this attempted crime you must have a specific intent because intentional and reckless conduct are basically consistent and under alabama law it's legally impossible to intend reckless conduct and is not what the alabama courts say it is your honor nonetheless we would we would point to the cases where it appears that someone has been prosecuted of an attempted offense based on reckless conduct the next case which is tammy christmas versus the commissioner of social security