calendar our zoom transmission worked pretty well yesterday so we're hoping it all goes well today and judge let go and judge brasher and i are very happy to have all of you with us you'll see a timer on the screen that is going to try to replicate the timer you would have had in the courtroom when the numbers go yellow that means that your time is about to run out so you should start to wrap up jerome williams versus the united states mr smith thank you your honor toby smith for representing drum williams may please the court when mr williams was sentenced in ninety eight clear principles in this circuits in this court's precedents established that his nine hundred and seventy seven federal kidnapping conviction could not have been a violent felony under either the a when i speak of the law at the time of sentencing really i'm talking about three specific matters st the elements of federal kidnapping which had long been recognized not to require the use will not look to offense conduct you know applying the elements clause it would only look to the statutory elements the smith can i ask you a question and you don't have to answer it immediately but i'd like  try to address it at some point during your argument what do we do with the modify categorical approach and your client's not an objection to the offense conduct so the more facts focused modified categorical approach to this quarter applied before the exam was was a fairly novel development in the circuit right thank you  that i think you're right about the judge saying essentially i can't tell you about this historical fact you know this when i'm writing this opinion don't need to saying twenty one years and paths he didn't purport to remember what he did twenty one years before even more generally how he was applying the elements of the residuals last so so we don't come even though it is is labeled as a question of historical fact that evidence he looked at to decide that historical fact was purely legal evidence it was purely the evidence from the precedents that were in place at the time of sentencing and  puts us in a different posture on appeal because he didn't make the kind of finding of fact that turns on credibility determinations or are weighing evidence  other than simply the legal evidence that's why we've argued that essentially the question before this court is a question of law that this court jan and should decide you know because the  residual is there anything in the record that sure d that the district court at the time sentencing relied solely on the residual clouds so this is well the short answer is there's nothing in the record as far as the sentencing record the transcript the presents report there's nothing that indemnifies any particular clause so that means that the only available evidence is the evidence for guarding the state residual clause because that's the only a c c a clause that this court's precedents would have allowed if you know assuming they were applied faithfully which is something i think we can and should assume the residual clause is the only one that would have been able to cover a kidnapping offense clearly kidnapping is not an enumerated and the elements clause as i was just saying in response to ju kidnapping could be committed by simply deception or purely mental restraint and that's that's just what the text of the kidnapping statute says as well  and so even though there was no on point precedent that had already said in this circuit as a binding matter kidnapping is a residual clause offense residual clause was the only reservoir into which this sentence could be could be placed under the a c c three plaza's it isn't that it is about always going to be the case when you bring one of these claims cost as the  very very close question or maybe not even that post about whether burglary would have it would have been a generic burglary that fell under the numerator clause there been decisions involving think that's true i am merely just so i just understand your point clarity of that in this case as something that would distinguish it from other cases where the issue would still be in all these cases we would still have to decide position in this case you have some not by me authority on both sides of the issue as well the difference is that many of the recent picking of course was a remembers required because the just reported that case if you just were raining pretty f the legal landscape was given our court's decisions on how to use the elements clause and nine hundred and ninety eight and what federal kidnapping qualifying documents you look and see that during necessarily consider you one of the government had to prove beyond a reasonable doubt it were to convict you that it would qualify but i think the trap that i fall into considering this case and thinking about it  right because beeman says that at least in some cases the legal landscape is going to give you an answer when the underlying record is silent that's as to what it is trick or did so i understand your position about this case but it can't be that the legal landscape can never provide the answer for you with a silent record right well no i would be well after that and it but that's in a case where the district judge explains what he did right right exactly right the right but i'm just saying that even if the war was clear the case like this i think it needs to be much clearer than is here of the ninety basis he cites to and the th circuit decision unsure body well all of these are non binding of the courts your honor and so the course being our right i know what you're talking about you're talking about between zero which is also non binding i agree i agree and i'm not i'm not trying to  we think that the same course that needs to be followed here in order to the policy decision in the case because we're talking in about the question of the store back in the practical reality is if you look at what it said about it for example it talked issue has come up the decision that probably would have been most persuasive and in fact this judge in this district court issuing its order denying twenty five relief characterize a sleepy decision very persuasive that's the case in the th circuit the only one that ask the question of what the judge thought as a matter is to act well i think it's difficult right because again you could have a judge who was was wrong to find if it thought about the  a qualified it could be just obviously wrong and that still would mean that the individual did not meet his or her burden i think that looking to the case law and if you look at pickett you look at b when they talk about making it clear that you district court's decision what do you think that is well i think in this instance especially because you have a district court who was the same judge that sentenced the individual to question the fact that entitle two so different no i understand that entitled to deference anyway because it's a question of fact but certainly in this case it's a title to some deference because you're talking about the same judge who sentenced the individual starting on twenty two in terms of this question decision of the district court thank you thank you very  explicitly say i don't recall but you look only to the state of the law and that is something that a score is least as well so there seems to review as the district court  when it when it does that it's talking only about the fact about the the law regarding the classification of it not being and similar offenses under the expressly stated and johnson twenty to fifty five claim and sixty eight in the face of some uncertainty so so the lack of absolute clarity here simply doesn't result matter finally the last point i want to respond to is that the government's argument that the nd sink were might also or instead have relied on the elements clause is fundamentally an argument that the sentencing for might have misapplied clearly