applying categorical review to one hundred and seventeen so most one valid prior conviction and not the two that are required of the statute as a result samuel so is actually innocent in his conviction should be vacated i believe this is a matter of  st impression for the court that categorical review to predicates under one hundred and seventy of the district court was presented with this issue and ruled conclusively without any sort of argument or reason that the categorical approach did not apply but looking at one hundred and seventeen dollars it's clear that congress intended to categorical approached apply to predicate convictions under that statute predicate convictions must be any assault sexual abuse or serious violent felony paragraph two allows predicate conviction to be definition is a list of federal offenses and federal crimes sexual abuse is a federal crime under two thousand two hundred and forty two an assault which that issue here is not defined under statute but this court has given a definition of federal assault the reason therefore that this is a categorical approach is required is because congress is defying predicates in terms of crimes or offenses and not circumstances and conduct  that relationship need not be an element of the predicate offense but that is a separate inquiry the supreme court found that to be these two things conceptually distinct attribute therefore in applying analysis under one hundred and seventeen dollars the categorical approach applies under the offense element and as far as the relationship is concerned although not at issue would be a circumstantial approach in some ways in many ways streamlines the prosecution for one hundred and seventeen by having this bifurcation of elements in determining whether or not a predicate is valid for example if we get to the point of trial the government would simply offer shepherd documents documents of conviction to prove the offense element there then after that as far as proving a relationship on a predicate offense that a government would simply call a fact witness probably the alleged victim in that case to describe the relationship to the jury that  was that would satisfy both of these elements it certainly able for the court excuse me for the trial court to determine these cases and if that issue in the future of the court would rule that predicate approach should apply gently the argument as briefs deals exclusively with the negligently meaning if it is a categorical or modified categorical approach that application would reveal that the shepherd documents you don't give any indication of which benefits will fall while the judge because the judgment is silent that is that the argument raised below but post briefing this court decided schneider which did an analysis on north dakota's willfulness definition which is  defined to include recklessness and so on we go back and say willfully and negligently is actually recklessness recklessly excuse me and negligently both of those and other either if it is willfully unearth kota definition north dakota law falls outside the scope of generic assault and therefore that predicate conviction is no longer valid and therefore so only has one valid predicate conviction not the two required under one hundred and seventeen dollars and that would make him  it does not say it does not say your honor that reckless is doesn't count doesn't specifically go that far but it defines assault to be two types and attempted battery and the intent to cause fear of battery those are both specific contents that require more than recklessness or mere negligence and this whole issue is not briefed your only argument in the brief is that we can't rely on the charging document has the judgment a silent the idea is the judge in a silent on negligence issue that was pretty schneider what about procedural the fog the government's briefs as procedural default they cite the andersen case they say the andersen case is right on point your prior raef doesn't even mention the andersen case so required for actual innocence and the argument under actual innocence here is that because there are no the government cannot prove valid convictions not based on the indictment of all the indictment which i think everyone agrees is a faulty indictment but there's nowhere starting from scratch if the government were to charge so can you could they prove to valid convictions the two thousand and thirteen conviction only came up on this post conviction matter that is actual innocence and that is consistent with the b decision that reinterpreted bailey one hundred and twenty four dollars c case dealing with whether or not the government could prove use of a firearm as defined under the bally decision that was a matter of actual innocence in that case at a point the court to jennings versus united states will include that this actual innocence question can be based on intervening decisions based on substantive changes and criminal law which is what issue one the matter of the predicate qualify categorical approach because he is actually innocent because the test is specifically the reasonable jury could not find excuse me no reasonable juror would convict based on all of the evidence and because all of the evidence contains at most one prior valid conviction mr so is actually innocent and he has not procedurally defaulted and i see that i'm out of time thank you for your argument violation of federal law that language just focusing in on that is to prior convictions if subject to federal jurisdiction amounts to any and any is a very key word in this  see if they are subject to federal jurisdiction what assault sexual abuse or serious violent felony would have or could have been committed in a federal case so going from that perspective  chemical approach was denied by the district court and rightfully so not only because of the language congress imposed here in this particular matter but also because where does it go to if the category hope roach is applied is part of the matter what is the core do  already finding that two prior convictions occurred that they now have to assess whether that falls under any assault sexual abuse or serious violent felony in federal law what do we do with the word in subsection a who has a final really high offense in the standard particular chapters of federal law that's pretty i typically look at that and i you know i look at that in a language of congress included as giving you a guy to what kind of crimes could have been committed in let's  say were some of the prior convictions we're looking at our federal park convictions now we have a solid base of well congress as identified that twenty dollars to forty dollars want a b or c might qualify congress as a divider a conviction under one  might qualify it's more of a guide to me you know you can specifically allege then that they are because they were subject to federal jurisdiction a prior conviction for that's qualifies in this particular matter  in this particular case the part of the issue for us is is that when you're talking about the finality of the convictions in this particular matter we had a charge we included to the prior convictions that mr  all discussed prior to the change of plea discussed prior to the court going over the factual basis it was discussed prior to the court accepting the defendant's plea in this particular case the parties knowledge of one of the convictions listed in the indictment language was not going to qualify or may not occur the parties discussed and we indicated to the court on the record at that time that we understood that that was not might not qualify but we all agreed that there was this conduct for this other conviction that would qualify nevertheless that this one the one we're now talking a wrecked what is your response to this this argument that  to the conviction itself and the initial argument was that you couldn't tell whether it was willful or negligent and now there's an argument that well even if it's willful and or not to call it a law that that actually includes rack recklessness in entire class of prior convictions a lot of states have similar types of definitions out of out of contention here for these prior convictions and that could not be congress's and ted the language was intended to be all inclusive here when they indicated that if subject matter section with amount to any assault sexual abuse or a serious violent it wouldn't you take entire states worth would likely within a circuit and i know from the johnson line of cases there's a lot of districts that have states that have similar types of definitions out there that include th willfully negligently recklessly as part of an overall definition so if they use the willful definition of the charging document which is often times where prosecutor the most i guess all inclusive and easiest way to charge  i believe judge told me you're correct with i understand that here mr silk would have needed to show some sort of cause and prejudice and he couldn't get past the cost portion because again the court had to go back and look at the record and knew that we were looking at this other conviction as a prior conviction he agreed that it would qualify as a prior conviction this particular matter so he couldn't show cause us to why he didn't identify why this issue wasn't raised below because subsections one into willful and negligent yes here you think it is i believe so and then you say you think willful includes recklessness that's correct and you think but is that a reason that the offense wouldn't you play anyway i mean the court did not make that analysis obviously because a projected al gore approach yeah but in this particular case it could apply it could allow that nd prior to play i see my time as all right very well thank you