battery with serious bodily injury that statute makes it a crime to knowingly or intentionally touch another person in a rude incident or angry fashion and requires that injury results serious bodily injury result from that  remembering correctly that he waived also twenty two fifty five challenge and i believe that's correct having honor why should we overlook those waivers and a waiver is an affirmative defense and to be raised by the government and the government has not statutory maximum and even if he had been considered unclear konar i think that makes this case different than other cases in which the court has chosen and that in combination with the fight with the district the government's affirmative disavowal of the waiver makes this quite different should not did not require the defendant intent to inflict injury the quote emphasized that the key here to a violent felony or a crime of violence was that the defendant intended to harm another person a particular element in order to be convicted of violating you need to show that it erred using to think that intent is freestanding requirement of a crime of violence even more than what is in the we kill or but in any event you're not locating your requirement in any language of the statute you think it's completely extra statutory now you know the word for that is made up and i think it's inherent in the that somebody intends to set the fire and doesn't know whether there's somebody in the building there is somebody in the building and the person dies in your view was that a crime of violence because the defendant didn't intend to cause the necessity of intent directed at the consequences as opposed to the intent to do the act it's the classic you know conceptual distinction between intentional acts and intending certain consequences and your bodily injury and there's nowhere in indiana law that gets at all into this idea that you could tap somebody on the shoulder and have been through some group goldberg scheme and wind up you know unconscious or severely impaired or it is a very high bar i mean the davis case that we've cited lacerated lips new embrasures and broken fingers are not enough to meet the standard so we're talking a touch that doesn't just happen to a rube goldberg and fashion lead to that injury but it was reasonably foreseeable that it was going to lead to that injury at a minimum i think what that is recklessness at the injury level and the case that i think is probably the the clearest on that is the lawrence decision from the ninth circuit which focuses on a washington state statute that explicitly holds those elements intentionally assaulting another and thereby recklessly inflicting substantially bottle it substantial bodily harm is enough and in analogous to that washington statute and just like the ninth circuit in lawrence this quote should therefore likewise find that the indiana statute here does meet that particular standard i think we cited other cases as well out a ninth circuit accordance with to follow department justice policy regarding when we should and should not enforce feel as this court certainly i believe does have its own right to enforce appeal waivers even when we choose not to at least under the prior administration and nothing has changed to this point we have in general ban waiving in the armed career criminal act context not in many other contexts including the one twenty four c context despite the fact that this court has ruled against us on the merits of one twenty four c issue and i do think as a general matter that there are policy reasons forced to waive the issue here which is this isn't some singular issue related to this defendant's case this is a broad issue there are many defendants pending in district court who have been convicted of this offense and we need to know whether whether we should be charging them as on career criminals or whether we should be saying you know they've committed conduct in state court and they should be charged they're the defendant in this very case was a pimp who was who was brutalizing women and if we can get a well the court is going to have to draw the line somewhere and i do agree with that and i guess you know i don't know i mean and i suppose that if it's moderate bodily injury the court's going to have to look at the context of exactly what that means i'm not i haven't i'm not well versed enough in what might or bodily injury or whether that forces the courts well look if it's i do think that under under law once none of these other cases the stairs are recklessness standards if it's reasonably foreseeable that the amount of force that you use is likely to cause moderate bodily injury i mean the supreme court know i understand that the supreme court indorsed for us but at the same time the supreme court and justice scalia's concurring opinion in calcium and start talking about things like bruises and minor pain that could be the equivalent of a paper cut caused by the paper airplane so there's some tension in a lot of their most recent statements curtis johnson and that requires only force capable of causing physical pain or injury there's no degree of injury or degree of pain requirement there and there's no intent requirement country and what this court too should say is if it in fact results in serious bodily injury and my suggestion would be if it results in moderate bodily injury which i don't know the definition of but i suggest it's going to is first going to go well beyond the course johnson standard so but where you have to look i think is like i said the place that my client wants to run from rationally i suppose but but it's bad that reasonable foreseeability and then the eleventh circuit involved my own is really concerning the question of whether there is even any kind of intent element at all and that if it happens to result in injury is even a negligent standard or not that's the that's the standard in the eleventh circuit but here i think indiana has a higher standard than that there's no evidence in indiana that tickling somebody and causing them unforeseeable to fall down stairs is going to count and apparently in florida it could so so i think that regardless of how that eleventh circuit case comes out i think this case is more canta the ninth circuit case to the fifth circuit decision to roane so all of those other cases that we've cited and ultimately at the end of the day there's always still the point of when a salvo as which says look if you can't it's not just enough that we can all sit here and come up with hypotheticals there's no evidence that indiana law does that my  indiana one case in her brief and it has nothing to do really with with the issue here we've cited many cases showing the level of injury that's going to have to result and that it's going to have to be reasonably foreseeable and the proximate cause of thout level of force that is sufficient and for all those reasons