with that issue actually raised because it appeared to me that you got this the range you wanted that the government was actually arguing for the sixteen level and you know we all maintain that the eight was appropriate and you got the eight so you can you help i can because if this is an awkward situation where it looks like you got the range you wanted and then the government and then the tour tacked on an upward variance so we hearing well we certainly favorite the plus four should apply and it seems to me that the district court could think that it because it gets very confusing and just record as you know brings in the probation officer to opine were third yes is the right is the right range and i don't hear you say no that's still wrong no we were very clear and i'm sorry i'm i'm trying to look for the record and if i need to i can look through it and get it maybe on rebuttal or something yes it is very clear to me from reading this record that we maintained our objection this was not an aggravated balinese for purposes of the plus eight enhanced and that the correct range was the plus for range because mostly though it seems like the government is the one objecting and arguing the government did maintain this position that the plus sixteen right and that seems to be really occupying and it is very confusing because there are two distinct crime of violence definition means something different under the plus sixteen than the aggravated felony but we maintain that it was not a crime of violence under eighteen u s c section sixteen which is the same issue under the plus eight enhancement and under the statutory maximum of thirteen twenty six feet two and are our argument that which was the on appeal and that what all of that means is that the least culpable conduct the court can assume mr medina was convicted of is a reckless causation of bodily injury it's mathis it's indivisible right it is partially divisible but  right the aggravating factors are invisible and the least culpable aggravating factor is based on the status of the victim who could be either a public servant or a participant in a court proceeding and so our position is and i think this court case law is clear that th court which leaves the remaining question of whether the offense qualifies under sixteen be our first position is that sixteen b is big do you understand that is currently foreclosed here but it is in front of the supreme  our challenge here because we are challenging the vagueness of the guidelines we're challenging the vagueness of statute specifically we are challenging one place for challenging the aggravated felony determination is in the application of the statutory maximum under thirteen twenty six b two so then the question with regard to the guideline is not whether mr media would have a freestanding begun his challenge to the guideline it's how the invalid bake statue would then be incorporated into the guideline but that's still part of the guide the reason well it the the language that we have started a appears nowhere in the guideline it appears only in the statute but this is incorporated into the guideline incorporated by reference but when it's incorporated in a in this way through this structure where the guideline simply says you know you can apply state if you have an aggravated felony and aggravated felony has the same definition is would be that way well i've point the court towards ashcroft vs free speech coalition in which the supreme court held a particular part of the child pornography statute to be constitutionally broad under the first amendment don't have to but if you could want to be make sure that you take care of the situation either way so that there's a definitive ruling regardless of what the supreme court holds then we need to address the buckles issue right i want to get the beccles argument out to th court because this is the chance i have been if the supreme court holds sixteen b s a then the government has raised this issue and so it you know the government has certainly asked the court to address it i know your position if the language was actually in the put all these words down here but you can find the words over here in this book that nobody looks at you find over here in this statute but it's the same words so it seems to me if this in commission decided to reference it as opposed to quoting you you still have a pickles problem well the reason why i think it's different here is because the vagueness of the statute is before the court as a challenge to the statutory maximum we've also raised the application of thirteen twenty sixty two there's no question here where the statute was incorporated only by reference and we do have an independent vagueness challenge to this that you see our challenge to thirteen twenty sixty two that's why i think it's different than buckles you can you can move on do you want to talk about sixteen it to be committed without the use of the violent and destructive force to say i that's what i say you've got some cases and you say these are times where it didn't involve it actually didn't involve force enhancement and that this qualifies under sixteen b and i think where we have enough cases like this and enough ways that this offense can be committed without violent and destructive force then the government has not met its burden to show that  consider adequately consider the correct range in that she did not acknowledge what the lower range would be and then justify what would have been a fifteen month accord marion's from that lower range and third on this record the record is not clear enough to establish that the court selection of the sentence was completely independent of the incorrect guideline in that it does not definitively establish that she wouldn't give a lower variance if the correct lower range was  what happened was the court applied had the plus eight range was the correct range and then varied upwards to a sentence that is within the sixteen range but she did not adequately explain her selection about sentence from the incorrect range well it seems that this hearing is pretty robust that she knows there's a four and eight and a sixteen but specially at night and a sixteen but she is aware if you're correct that she continued your objection that she knows  she didn't knowledge that we were and are going to and she's going for a number i don't think that it's clear enough in what she says that the record is clear enough that the selection of the sentence was completely independent of the incorrect range and i think that's what is necessary for the government to establish and it's important to remember it's not enough to show that the court would think the plus four range was too low i do think that is clear but that's exactly a bar luna where the district court had very upward area but i think each case is dependent on the record that comes to this core and the government has to convince this court that the district court would give the scene sentence on remand in order to meet its burden to establish heartlessness and here i think the record is just good morning you may have please the core and record for the united states texas aggravated assault qualifies as a crime of violence under both eighteen u s c section sixteen a and b and for that reason the district court properly applied the eight level and hence meant under sentencing guidelines section two one point two and it properly entered judgment under eight u s c thirteen twenty six b two even if this court were to disagree however re sentencing would be unwarranted because as discussed to discuss the district court statements at sentencing rendered any error harmless judge i'll ride you had some questions at the beginning that sounded like whether this issue was clearly before after judge harman imposed a since they objected to the variance but beforehand so in writing and this is at or away eighty six through ninety and that ninety four and ninety six that's when in writing the defendant explains why this wouldn't qualify as a crime of violence there's not a mention there about that the a political range of b plus four but then that gets clarified at sentencing at the very beginning of the sentencing hearing at all away sixty three and sixty four judge harmon goes and this is becomes important for the harmlessness argument later she says it addressing defense counsel the issue is whether it's a plus sixteen a plus eight or a plus for correct and defense counsel said that's correct and that's because people are coming from all different sides of the government was arguing that it was a sixteen level enhancement probation thought it was just an eight level and hance meant that ended up being applied and the defendant thought it was a plus for enhancement i think the issue is before the co and also because of the fact that the defendant has challenged the characterization in the judgment that this is a b two felony the harmlessness only goes to the end of this sentencing guidelines and han but this court would still have to decide whether or not this assault conviction qualifies as a crime of violence under sixteen a and sixteen b let me address have to do sixteen if we determine eighteen u s c sixteen b is not unconstitutionally vague in this circuit perkins aulus and gloria the defendant is right this issue is right before the supreme court and to my presumably we're going to get a ruling one way or another or the other whether eighteen u sixteen be as unconstitutionally vague if the court if the supreme court rules in demaio that eighteen u s c sixteen b is not unconstitutionally vague no problem don't have to reach to sixteen a issue you can decided on sixteen be grounds assume however since were here that the government loses and dimaio and sixteen b is ruled to be unconstitutionally vague we think that beccles would foreclose the guidelines challenge to two a one point two but not so for the care the statutory characterization under thirteen twenty six b one to be two i agree with you this is a murky area but in that case greatest record to address the sixteen a it wasn't raised the government didn't anticipate and raised this before the the district court the government did not raise this before the district work and why should we be in some area that's fraught with peril the courts are you know it's in process when you didn't present this why should we go out on a limb on this when there's a perfectly fine way that was presented to rule in this case with me i am not at all suggesting that the court go out on a limb and if sixteen p is held to be it's held that it is not unconstitutionally vague this court should decide this case on those grounds i'm assuming that then we can discuss whether you've can argue this other ground or not but why should you get to argue it now because the description of for any reason supported by the record and while it's true that the government did not press the argument in the district court that  qualified under eighteen u s c sixty eight this does not mean for example that it's without a much more difficult argument i don't know that you really want us to do that it's a much harder argument for you than the be you know i think we stand by both of our arguments your honor i get it that was ray i'm sorry you've got an argument that was raised that you could win on perhaps yes and then you got one that wasn't raised that is very unclear whether you'd prevail and so i t seems very odd that you would tell us that we have to rule on it and no i'm not again i'm only saying the way in which it must be ruled upon is if eighteen u s c sixteen b is ruled to be unconstitutional so for example what could happen right what could happen is this court would say this cricket issue up in opinion tomorrow and say well based on pins all of us in korea right now eighteen u s c sixteen b is not unconstitutionally vague therefore we're going to just assuming that this argument assumes that the court waits for demise that this court waits for demaio but you're right the court does not have to again this is only assuming that sixteen b is ruled to be unconstitutionally they and it's disick seen a argument although yes it's an area that's in flux it's not reviewed for plane air the case that sided by the defendant and the reply brief that's a case in which it was a government cross appeal in which the government was cross appealing the sentence it wanted a higher sentence and so the government was trying to win war gets rights that's why the argument you raise below would be reviewed for player that's not this case we're not trying to win marj our rights we're just saying you can affirm for any reason supported by the record all on sixteen be even aside from even if the guidelines are not susceptible to vagueness challenges because they don't fix the sentence or the definitive that's the ruling of the supreme court and say you can't get around it by saying well because it just references the statu it's it can be challenged the child pornography cases are simply an app is it first of all there's the child pornography cases aren't about vagueness i think they're about more the first amendment so there's a difference there but more to the point the cases cited by the defendant the there are three cases from other circuits nowhere do they seem to be addressing at least so far as i could tell the fact that will work only  the constitutional portion of the guidelines in fact in two thousand and three congress pretty passed the protect act and that had the effect of substantially overhauling the child pornography guidelines and so all of these cases actually came after that so i don't really think it would be an issue now presumably you know maybe the sentencing commission if eighteen u s c sixteen b is will to be unconstitutional they may change the language going forward but as of right now you cannot back toward this challenge just because it references a statute as opposed to copying and pasting the guidelines such as in four b one point two which  was at issue and back with us sixteen b concerns the ordinary case it does not concern whether there are some cases in which there is not a will there is no risk that force can be used and in this case in the parties agree here that the least culpable conduct is assault causing bodily injury to a specified officer and in the briefing it's been assumed that this is a police officer what the ordinary case during every case is resisting arrest and this court has already hold and held in espinosa that an assault under twenty to a one a one in that which does not involve an officer is purposeful it's violent it's aggressive and it's a it requires a cause a confrontation between two people leading to physical injury that holding equally applies here and then add that to sanchez espaol which is the agri aggravated criminal contempt case that was held to be a crime of violence under six eighteen u s c sixteen b well there it has that case makes even stronger because of the status of what's going on in the background i mean here it is an off this is a person who is assaulting a police officer so we supposed to just ignore all the cases that they keep citing to us your very diligent opposing counsel keeps finding cases where it doesn't fit the the mold and the general pattern is as you say you should know i'm not suggesting that you ignore the cases but the inquiry for this court is what is the ordinary case not can i find certain cases that  that reflect a type of fact pattern that would not race and how many cases do they have to find before it i don't not the i don't know i don't think it's i don't think it's a numerical do we find a number of cases and that proves that i think the inquiry instead for the square is what is the ordinary case and in the ordinary case of this often does it raise a substantial risk the ordinary case is not for example in the twenty eight jail letter it's one of the cases granted in a different context was the husband throws a plate against the wall in an argument with his wife a short kit's the wife that's a use of force seems similar here i mean here it's if a person kicks a windshield breaks the windshield the glass hits the officer seems to me that's a use of force in that that segues into the sixteen a argument which i know this court doesn't want to reach and again i'm just preserving this in case it has to then you ma interfering with a an officer's authority by committing assault risks serious violent confrontation and the reply brief in this is at page fourteen the defendant argues that well this occurs after the commission of the office and the government simply disagrees with that these are not two separate often says there is not the assaults and then there is not an assault against an officer it is assault causing bodily injury against peace officer this is part and parcel of the often itself the degree bear the burden on this yes yes we bear the burden to prove a guidelines enhanced men and for that matter be one vs be t started with in this case it understood it said our way sixty four will be issue is whether this is a plus sixteen a plus eight or a plus four and so in that respect the court is aware of all the various ranges we can presume that to be the case that the court knows and then the government argues says the court if you grant the objection you should upwardly very and sentence him within a range as if it were a sixteen level and he has been sixty five and the district court agreed in imposing the seventy one month sentence that shows that the district court had that range and that particular sentence in mind and then of course above all that you also have the district court's own statements this is the sentence i would impose regardless of what the guidelines calculations would have been at or away seventy eight the government frequently points to that standing alone as a sufficient evidence but here again we've got everything that preceded that which is the court is aware of all of the possible ranges that can apply and all of the various arguments how do we distinguish a bar alluna and what's the best case to use  the court in that case didn't consider the different ranges here i think by virtue of the court saying that the issue is whether it's a plus sixteen a plus eight or a plus for the court did implicitly consider all of the ranges there's never been a requirement so far as i'm aware in this court's case law where this court has required a district court to state when imposing an alternative upward variance ok and if the if i were to have granted the defendant's objection it would be a plus four in the range in that case would be fifteen to twenty one months and i find that that who do have the cases you have to get to the correct range in the knowledge and at some point we have a case post a bomb or are eliminated says that as well so i'm what is the best case that you would say that is already we have a bunch of cases the distinguished bar alone already what's the best one of those that you think is most comparable i think sheppard united states versus shepherd which is recent which talks about you know taking the district court at its word  there's a reason i just think that you know a bar loon again focuses on the district towards whether it's considered all the different ranges and i get back to the fact that norm repeating myself but the district court here did consider all of the different ranges if i qualify as a having as an element the use of force because of those cases distinctions between the causation of bodily injury and the use of force the government's argument is that that has been abrogated by the domestic violence context they applied to the guidelines crime of violence context and they're correct in doing so and in joining every other circuit to consider the issue because in castleman if you look at the opinion context because of the differences between and the violent felony context and the domestic violence context were you saying we have to write an opinion that says that rico doesn't follow the rule of order enrquez could not follow if castleman invoicing were limited to the domestic violence context the cases respectfully they conflict with one another if the court holds that there is no conflict again the government acknowledges it loses on the sixteen a argument and we simply preserve the issue for further review and note that this court seems to stand alone in terms of limiting castleman to the domestic violence again the court need only reach it if sixteen b is ruled to be unconstitutional try to get on bonk on this and that's why you want us to reach it i don't think so we're not necessarily seeking on bond consideration in this case but as the the court knows  presumably aware of the solicitor general has authorized affirmative government appeals in other cases that raise this issue i can't speak for the office of the solicitor general in terms of when they would authorize a and on bank petition and whether this case would be the right vehicle but this isn't this is not an argument that is coming just from the united states attorney's office from the southern district of texas this is an argument that has been approved  otherwise we cannot otherwise those affirmative government appeals would not be authorized i see that my time has expired the court has no further questions we ask that you affirm the judgment of the district court thank so i just want to address a few things so just to start off to the extent the court is still concerned about the preservation issue but point the court to page sixty three of the record on appeal where we acknowledge and we know that part of our argument is that it's not an aggravated felony and then at pages a seventy to seventy one the court kind of pulls everyone back and says hey you know aren't we talking about two different things plus sixteen crime of violence an aggravated felony and has a back and work with our attorney where we say yes there are different things but we say it's not either and specifically on page seventy one conclude by saying we're of the opinion this should be a plus for but it's neither a crime of violence nor an aggravated assault so he that was very clear to the court and i think if you read the transcript you can see that the court does did also ask the court to correct the judgment to remove the reference to thirteen twenty two because of the immigration consequences and collateral consequences that result from a determination that an illegal reentry defendant had a prior a grade  ask about that do you want us to correct the judgment or we've had other public defender say we can't we shouldn't do it even though we can because when it if we just corrected it doesn't get into the indicate that the court needs to actually explicitly consider what the correct lower range would be and that if there is no evidence supported that it becomes harder for the government to convince this court that the court issued court would impose the same sentence i don't think it's  enough and in addition there needs to be some indication in the record that the selection of the sentence was independent of the incorrect range in addition to the district court saying that it would impose the same sentence anyway point the court towards recklessness argument in this appeal acknowledge those cases are the law but they do not overrule the line of cases that the causation of injury is not equivalent to  sentence i think here the record is just not that clear there's no indication that the court actually thought she was giving us what we asked for by departing drastically upwards to the plus fifteen range