our circuit although he hasn't come to atlanta to much board glad to have him here he has a distinguished career he's been the u s attorney a district judge served our country in the navy and has been on the six circuit for a little while so we're very glad to have him here with us here you know the lighting system when the light goes yellow that means that your time is drawing to a close so just bring your remarks to your conclusion if we take you beyond the red light and don't worry which is keep going you're on our time and not yours and with that we're ready to begin with our st case i johnson and that decision is turns on whether or not he has three prior convictions that qualify under the act mr excuse me when johnson eliminated the residual clause one of mr miller's predicates his shooting a firearm from a vehicle no longer was no longer qualified and so he was left with a possession with intent to distribute cocaine which he doesn't dispute raise the two convictions versus the two incidents versus one incident on direct appeal correct yes ma'am he raised it at sentencing and then again on direct appeal and on direct appeal this court chose not to address the issue because they considered the er harmless because at the time we didn't have johnson and so his other conviction counted under the residual clause so he's pursued this issue all along and this is really the only opportunity that this court has had to consider the talk about the substantive one st will take them into reverse order what's the principle law that you would have a slight gawped with regard to whether or not these were committed on different well i wouldn't ask you to adopt any new principle i would just ask the court to apply the principle that it has in the past so the three sort of factors that the court is considered in the past with regards to whether or not two crimes are separate for the purposes of the armed criminal act just broadly our time place and the number of victims in mr miller's case the only one of those that separates these are the number of victims they happened in the same time they happened in the same place and even with to the same victims we don't believe that the government presented enough evidence to demonstrate that there was a separate intent or that he that there was any break in time between the shooting of the of the gun you know it was two shots but there it's not clear that there were two to be aimed twice or that he there was a pause or anything just that he pulled the trigger twice that's all we know he was it lets you know because what's the standard for for how how much evidence we need about his his forming of a separate and ten so the government is a show by a preponderance of the evidence that that while there were two separate crimes it doesn't talk about intense specifically but i guess you would say that a preponderance of the evidence that there were there is enough time for him to have the intent to commit one crime poz think about you know you know think about committing a nd crime and then to do that so by a preponderance of the evidence what if there was a and i know this paragraph in the pre sente or provides no information about this so this is hypothetical correct ok if there was a time lag of about let's say thirty seconds between the shots what do you think the answer would be because we have if we get to that issue we have to figure out not only the result but a way to explain the result in a co op with an articulable principle sure well and again i wouldn't ask the court to come up with a new principle i think that the principles that we have now in the in prior cases cited by this court stablish is that these were two part of the same episode so but let's go back to your scenario i would say in our opinion that thirty seconds i don't think there's a definable time going oh i agree i agree with you on that but right but so thirty seconds we say not enough i think that if it is i would say that it's part of the same argument the same course of events you know there is not we don't have enough evidence we just don't have enough to know i mean so thirty seconds because he was reloading his gun or thirty seconds because he shot st and then the other victim said something that made him more angry and so he shot again i mean i think that that you can't pin it down to a time because time isn't enough i think it's that you have to take the whole circumstances the whole scenario and decide you know was there are enough time to to make a clear decision and were there facts to support that this was a clear conscious effort or decision to move on to the next crime which is brought up at the time of the original sentencing yes or the court which well the court what the court decided was that it didn't need to reach the decision because they because there were other there were other convictions that supported the act and handsome and so actually in the statement of reasons the court wrote i don't have the exact language in front of me but something to the effect  of you know the court finds that these aggravated battery convictions were separate offenses but it is not necessary to make this finding in order to impose the aca sentence which is why mr miller then brought it on direct appeal to this court but then of course this court that our on bond decision in zack versus talk is sort of an antecedent hurdle for you to get by before we can get to the substance of your two versus one argument correct so this is your chance to spell   in tribute to supplemental thirty i submitted earlier this week it's a the johnson i'm sorry a johnson claim has two prongs and so we would say that it's only there's only one timeliness issue it's whether or not the johnson claim was timely so the johnson so requires two things one to show that the the lower court record relied on the residual clause which nobody disputes that here it clearly did because that's the only way we get the shooting a firearm from the vehicle conviction in and then it has to and then as part of that same johnson claim the defendant has to demonstrate that he doesn't have three other prior convictions that applied to his sentence so there's only one timeliness analysis and it's whether or not johnson was brought the johnson claim was brought in a timely manner and in this case it was the government's position is i think is that although that general framework you articulated is exactly right you cannot then making non johnson based argument to try to show that you don't have three remaining predicates shirt so the i understand what the government's argument is but i don't know him and i don't know how well as the defendant would be able to present this argument to the court i mean he's pursued he's pursued the issue all along and so how do you how we're not asking the court to to apply it's not like a de camp question we're not asking the court to look at you know case law that has come out since and now it's untimely like in benin and so we're you know we're trying to he's trying to get you to apply a new legal analysis all we're doing is counting his prior convictions so all we're asking the court to do is count those convictions there's no ne issue well i didn't raise the on timeliness issue the certificate of appeal ability specifically lays out that the issue that this court is going to consider is this court certificate of appeal ability not the district court eldo the district or did find that the motion his motion was timely exactly that that's how that's how the ball kind of got rolling in this case is that before johnson even happened he filed a hey b s raising that exact issue and then our office was appointed and based on our educate legal education realize a rd factual city where the district court expressed we relied on four different can mr know under has a timely claim that one of those convictions for shooting from a v a is not a proper predi under johnson and so therefore he met the st requirement of beeman the nd requirement of beam and he can't meet and that's because those three other predicates the district court expressly relied on negate the causation of the residual clause being the cause of the enhanced let me create a hypothetical for you to certainly if the district court had not needed to rule on these two will call them when you go back to the district court you argue for the st time because you didn't have to before that these are two separate convictions does he get to argue that there really one and if the district court says there are two does he get to appeal it would make sense to me your honor that if the court had not expressively relied on a conviction before and we were asserting that the conviction was valid because there were these other convictions that had not relied on it would make sense to me  it would be the government's burden to establish their validity presently but that's not what we have here so very close i mean if you're lucky if you look at the guts of the issue the same thing is just  up but if if in the hypothetical you try to bring up these two separate convictions to supply the three necessary after one's been thrown out because of johnson he obviously gets to tell the district court no no these are not two they're one and if the district court rules in your favor right and if we grant the c e o way he's up here properly right i would historical fact is the district court made these determinations the difference in the hypothetical is that the district or didn't make those determinations and and the government is trying to cure the problem by establishing the fraidy says you can't raise on a two to fifty five when you raised on direct appeal it would have been barred you would have read i think i think he would have raised and properly so afraid a bar argument and we would have likely said can't raise it you raised it on direct appeal to two hundred and fifty five is not a substitute this is one of those sort of rare cases that we see at least from my perspective where although you may be right at the end of the day the defendant has done everything procedurally right right he he hasn't done anything wrong he's not trying to bring in a new argument or rely on new law or do anything else he's preserves the issue all the way through unlucky or by bad fortune we didn't address the issue the st time around and now he's trying to get us to address so from and i know equity doesn't always carry the day but from that sort of perspective seems like the case where maybe we should address the substance of this no i see your point your honor i think maybe a number of these cases probably don't get here because the government makes an assessment of whether after johnson there are three valid predicates we've made that assessment here and therefore were asserting that procedural bar which is it's an untimely challenge to a claim problem i think we proper we've raised the time when this argument consistently your honor throughout the collateral proceedings initially in our response the twenty to fifty five before there was a johnson issue the district court did not grant a certificate of appeal ability except term and there wasn't a constitutional issue involved this court granted one general rule and i think it's reflected in the reply brief and so on is that certificate of appeal abilities presumed to include the threshold procedural matter i think there was an argument that the petitioner made and their brief that that doesn't apply when it's the appellate court that grants certificate of appeal ability but  i believe there's an a line of cases and i think there was one just about ten days ago from the court the rosco decision that i like that held that true for that for the court of appeals granting the certificate  how do you get around sweeping sweeping your honor yes i mean in that case there was a burglary and the person to escape flees the home that he had unlawfully entered goes into a nd home commits the same offense and is then caught he certainly had time to figure out between burglary one and burglary two whether he was going to go to burglary and yet this court in one of its very early decisions on the separate offenses matter held that it was one occasion how does that differ from the circumstances well your honor there's there's been a number of cases on burglary and i think a lot of these cases are fact bound and sweeping cases so there are there are i have checked a lot and i can't are sweeping was followed by pope which also involved robbery or burglaries and relatively close proximity reach a different outcome and the holding in pope was so long  as the predicate crimes are successive rather than simultaneous they constitute separate criminal episodes i know the problem is that sweeting came st understood your honor and i think that the lead case that followed that tended to reconcile the different outcomes and mention that sweeting was a little bit short on facts or explanation but it did the different opinions reflected the different panels judgement about how meaningful the opportunity to  minutes apart and found that those were separate occasions the weeks case i think is also useful which we cited in our brief seven hundred and eleven f rd at one thousand two hundred and sixty one issue there was a burglary of two structures same day the defendant argued that he had walked fifty six feet between one and thirteen seconds before the next burglary and that therefore they were on the same occasion all the cases say all the great majority of the cases that follow sweeting strongly support your position here on the merits the problem i think if we get there is sweetie and you're right that sweeting was short on analysis but there is a holding little let me give you another hypothetical so mr my lender has the argument with these two gentleman and he fires one shot the shot goes through the leg one of the gentleman hits the nd gentleman who is standing behind the st he's charged with and convicted with two aggravated battery offenses in state court separate occasions or not i would say not your honor and the reason is that that's not a distinct aggression the at one shot two victims may support two counts under state law but when he shoots twice bank that's two different that's right your honor and that's that was the district court's reasoning and which we think is correct which it there's two conscious acts of aggression there's a meaningful opportunity to refrain and not engage in the nd act and therefore these are necessarily successive acts just as in weeks where you had a burglary and then a burglary completed in another in thirteen seconds according to the defendant  in weeks the court said that was sufficient to sustain the government's burden by preponderance of evidence what if you fired two shots at one victim and one shot had the victim and the other missed whether it be a separate crime for each of those shot missed him so that would be assault on one shot hit him so that would be a battery but that the way that the two incidents honor that some sounds more like a robbery of multiple victims which the courts have said is not you know it's a single act that you're committing there are multiple victims but that is so firing a machine gun to me that has we have none of that here that's correct your honor record is silent on this bill how do you get to it how do you get her preponderance i can certainly see there is a possibility that he had a meaningful opportunity to consider a nd shot but i'm not i'm not sure that i see it enough evidence to make it more likely than not how do we get from a possibility to more likely than not i think it's the same preponderance that the court found in the  which is that one burglary is complete and then there's another conscious to sit completed burglary now there may be other evidence like in the sweden case where that's indicative that there wasn't a meaningful opportunity but this is by far the most interesting case i have ever been able to argue i think that the facts are there like every law school exam question that we never hope to get most certainly  was it was interesting to hear judge your new braze the idea of one bullet because i have been kicking myself for two the two years that we've had this case that nobody raised that direct on at sentencing because who's to say it wasn't one bullet  it's the court wouldn't mind i'd like to read the court exactly what mr miller pled to at his state court sentencing on these two convictions for these two crimes and they were convictions in the court it says on this day the defendant fired a gun and the two victims were struck by but by bullet witnesses indicate that the victims also had a firearm and had threatened the defendant knight the victim lied to the police about the fact that who was the other victim had a gun milind or had retrieved his gun and when he left the area comma according to witnesses comma returned the gunfire and struck night and could starvin so really to me it sounds like the shooting was as he was leaving the scene of an argument and it doesn't sound like he stopped he shot one victim he turned and shot another but my opinion as to what the facts are are the most compelling evidence are the most compelling thing for this court to consider i think with this court to consider was that in mcleod this court's previously said we can't stretch we can't fill in blanks with our own assumptions if it is not clear from the record we cannot find that there are three separate convictions and then one other point i'd like to make is that the government has indicated that the lower court explicitly found or it's i'm sorry explicitly relied on these four convictions that being it did make a statement sitting in a room that thought that they absolutely know the court made it made and definitely made a finding that in its opinion they were separate but that it was not relying on the fact that they were separate in order to impose the ak and hand sentence so to me that goes back to this timeliness argument about well you know the court there were still are four so now we've taken away one and so now there are three but the court never said there were four it said i'm relying on these three and so now we're back to this counting problem of how do we decide if these were separate offenses as far as pope is concerned i think that there are there's a there's a great portion of pope that relies that cites to many cases one of them is actually a case the judge siler was on years ago graves and in those cases it relies on you know it talks the pope relied on these cases and talked about how close they were in time and i think you know another case that's relevant is petty which is one that the s g e the excuse me the solicitor general conceded that this was not the kind of a this is not the scenario that congress had in mind when in when it imposed the aca and petty was of course the case where the defendant went into a restaurant and held up six people of course the defendant had to think while he was standing there there are six people here and i'm robbing six different people but everybody agreed that he didn't form six different intense or six different there weren't those