better i guess i don't know why ya got nervous i don't get nervous up here we do sometimes i think you're familiar with how our system works you have twenty minutes each there's a clock there in front that tells you what your time is the amber like turned on you have a couple of minutes and once it turns red you should complete your thought and stop unless we ask you to go on or you might be answering one of our questions for you can go on a little bit more let's see your first case of the gaze of the day is tony ray simpson united states of america versus tony  thank you judge please the court my name is matthew wright i represent tony ray simpson and because the government has conceded that mr simpson is entitled to relief on the first issue unless the court has questions about that i'm going to concentrate my efforts on the second issue question for the court is whether the statutory syncing enhancement eighteen u s c thirty one forty seven applies it does not like to make for a just before you leave that first issue it's a crime of violence it's so fun you it do we only get to resolve it easily with a concession because a rebate controls and we as a court have decided that this is a divisible offense if we if we didn't say a one to three we're divisible we couldn't use the modified categorical approach you see mike what i'm asking i do see it is it depend on the validity of a rebate for us to be able to resolve this easily i don't think so your honor obviously we continue to contend that this is an indivisible offense but it's a both and type of argument now the courts foreclose that issue if we treat it as two separate offenses a one and a three there's no question whether it's means or whether it's a separate offense the parties did not intend for mr simpson to plead guilty under the qualifying count but i was thinking only with the rebate do we know do we are we able to look at the shepherd document which is the one that's been supplemented if we wouldn't if we didn't exist and it were indivisible it we could only use the categorical prochoice there would be no relief in this we were to say lease culpable means includes a vehicle on a one or obviously three you win both ways but i'm just worried about the i'm worried about whether we we write it depending on a rebate if the rebate is still hotly debated i agree or i think if you really didn't exist what we'd be asking this court to do is to just hold that question for another day obviously it's hotly debated i think everybody in the court knows that question but you would need to resolve it in this case because you could say well if it's a separate offensive it's to visit all the documents resolve this in the defendant's favor it's indivisible this court's president resolves in the defendant's favor so i suspect that i don't talk you out of any way that i can win so i know that thank you but i don't think you would need to resolve your big question if it were somehow opened back up so moving on to the second issue to whether the thirty one forty seven has been applies i'd like to make four points today first if the section thirty one forty seven statutory enhancement doesn't apply then guideline three c one point three does not apply the second the statutory enhancement unquestionably aggravates the defendant statutory punishment third because the statute aggravates the punishment range than the sixth amendment requirements apply and force the government elected not to prove the elements of the statutory enhancement in this case therefore the statute doesn't apply if the statute doesn't apply the guideline adjustment doesn't apply you say it's in a prison the issue in the district court were we pronounced a separate six month sentence that's not reflected in the judgment which is a whole other issue but let's say it was reflected in the written judgment and you're challenging that extra six months and it's on a prendre grounds isn't it even a simpler analysis because my understanding is if the written judgment had reflected the oral pronouncement the judge would have basically had two separate sentences the underlying firearms sentence and then this separate six month sentence i mean isn't that an entirely separate conviction that as a basic matter of six of them all you have to have a jury deciding you don't even get into maximums and all the supremacy stuff yes your honor i think that's correct now what we haven't really taken a given that the written judgment did not reflect that then why isn't it just within the because  guidelines sentence why isn't that permissible you are it's not permissible because the guidelines this particular god line actually depends on that separate statutory whether it's a separate crime or just an enhanced version of this crime the guideline depends on it and it's kind of unusual in that sense right typically what you would find in a guideline is an entirely separate proceeding the judge operates within the box of the p s r finds facts applies the guidelines but there are a few provisions such as the guideline governing on twenty four c which is applied in this case and this one which do not ask the judge to make an independent factual finding but instead say look at the judgment or look at the conviction and look at the counter conviction and apply it that's what three c one point three says it says if a statutory sentencing enhancement under thirty one forty seven applies apply this one forgive the morbid metaphor but the guideline in the incident in the statutory hansen are like tandem skydivers you not get separate outcomes for the two different propositions so in this case the court applied the thirty one forty seven enhanced but i don't think there's any question about that on page eight hundred of the record the court overruled our objection as to both why is that unlike all kinds of sentencing in the hansoms where in a gun cases is zero and if the gun the felon possessed was used in connection with another offense like robbery or assault increased by four levels that doesn't require a conviction and it's not within a prend be in that situation to say well there's the judge makes a factual determination that the gun was used in another offense i'm going to add four points constitutional objection in that what's the difference the difference is that the commission has chosen to tie the application of the guideline to dispossess if it statute or separate crime so it is constitutional error to apply the statutory enhancement guideline error to apply this provision without the statutory advancement i mean there is first the moon is question in that the i mean i see how you're saying it unravels the enhancement but just there is no brief thirty one forty seven consecutive sentence that was given here so that just create very unusual wrinkle which you may be about to unpack but what about are the just the dice and decision is not the dice a decision is dick to your honor as the third circuit recognized in the lewis decision but in dyson they say we are following our precedent when you plead to one you automatically trigger the other so it's not necessary to the outcome of the decision because you can negate and you come up with the same outcome it was a guilty plea case it wasn't a trial and it admitted all the facts necessary so in that sense it's dicta also the court itself said we continue briefly to go into this digression right you do not continue briefly to express the holding of the court right is just it's just basic dictum but let's say that it's not let's say that somehow this becomes holding even though it's not outcome determinat that case or even necessary to the decision it's overruled by elaine because justice thomas writing for the majority the court says if a statute aggravates the punishment if it aggravates the punishment if it makes it longer as a result of statute in the sixty minute requir see that as a serious six the moment problem but it's not a question of a mandatory minimum your honor i think justice thomas and the court began writing to the majority addresses that question specifically and this is on the pages twenty one sixty two and twenty one sixty three where he says you know if the defendant is convicted of a simple version of the offense to he has two to four years of assault but he is the judge treats him as convicted incidences of for aggravated assault where it's two to ten years even if he gets a four y on that if you sin in someone for an aggravated version of the offense and that is not supported by a jury verdict it's a violation of the sixth amendment so i think that's one way that it's a violation the other thing i would say is if the court agrees with me and it sounds like at least judge costa you are happy to hear it if you agree with me there's no thirty one forty seven and handsome in this case well then you need to reverse i mean we've already said we're going to reverse anyway but if the thirty one forty seven handsome it doesn't apply judge lynn ought to have an opportunity to know that that was what the government argued below they argued absolutely the supplies and we didn't have to prove it to the jury that he would know what happened between the sentencing hearing and the written judgment why the six months is not included in the record is silent as to that your honor there's no communication with the court probation not not for me so once if there is agreement now on the texas burglary so we remain the real question is the scope of the reach correct your honor and if you're saying she has to have would you say let's say we just vacate we man how would you interpret the default rule to be in our court would she be able to revisit the whole package and correct and even give the six month consecutive is there a default rule and if there isn't one what would you like to see the scope of the re man be if there's an area of discourse more difficult than crime of violence it's got to be the mandate or also i hesitate to say what it would default really be without seeing the mandate our position is always going to be it would violate the sixth amendment to apply the statutory enhancement and it would violate guideline three c one point three to add those three levels and without the statutory and so what we're asking for is the court to reverse the application of the thirty one forty seven enhanced that was unquestionably applied in the court below in the oral pronouncement at least it was also an assumption of sentence so we would ask this court to reverse and to say i would think you'd be saying we don't have authority to reconstruct what is the judgment that in that sense is in your client's interests right i don't there's no way that th or right maybe the government comes along as oh this is a clerical error or something like that today they can't get it back they can't get it back because they didn't cross appeal and green law says the cross appeal rule is something that binds this court and what this court's allowed to do the party presentation principle likewise opposed to district court also i would point out that the government's harmlessness argument like explicitly leverage is the absence of the six months in and says this you should refer at least this aspect of the sentence because it's not in and that is not something that tactically you're allowed to do it is to leverage something that may have been an omission it may have been a purposeful recognition i suspect whether it was purposeful or not this happened because there is no separate count of conviction there is no separate jury verdict so maybe there's a form that you fill out the this is a very strange sentence i agree but the problem is if this was not treated as an element of an aggravated offense had it been it we wouldn't be here today at least not on this issue maybe would be here on the burglary issue so i think that the senate should be reversed it should be vacated and we think this court should hope right that the sixth amendment requirements apply to the elements of thirty one forty seven because it enhanced as the senate if i were to say i'm persuaded by dyson or feel controlled by what portion of your request relief can you still urge if you or if you're persuaded by dyson thirty one forty seven isn't a separate crime doesn't implicate and yet now the government isn't urging it you still say the guidelines makes it in extra complete the parachute example so you they wouldn't be able to get the enhanced that's where you'd be that you want to be that that is where we've been your honor and i think that's there's no if ok they don't apply but it goes back and the judge says ok there was no jury finding these three points for up or departure or possibly aren't available but by golly i know that you or departure are for a guideline or even if it's not outside the guidelines at the top of the guidelines and give us a different sentence outside of any finding by the jury or the three point for committing this crime to the judge the guidelines or guidelines the judge of the authority on her own to give us ten percent i think there's no question that she does you know so long as she's not applying this by another name right a rose by another name sort of thing other than that there's no question this is something that could be considered in the thirty five fifty three analysis even within the guidelines as to where within the range it would fall i don't know there's a guideline departure that would capture it but certainly a variance or since within the guideline range but that's not what happened below right the court was following the guidelines what our position is is that the statutory hansard can apply and the three level adjustment can apply once those guidelines are properly calculated at that point we can dress to the court how to take into account this fact just like any other you get question about the government's conceded the crime of violence what do you believe the standard of review is given that your argument relies on this new document that wasn't presented in the district court your hon doctrine where there's a related objection that's raised in other words it's not like we sat on our hands silently you know and or sandbag anyone we fought tooth and nail against the burglary an answer but the judge said it's a close question so it's everyone was on notice that these documents were going to matter grand we've heard what is right now we'll hear what his grand going back to what cases dyson relying on to reach that conclusion is answered by united states versus jackson all the way back to nine hundred eighty nine this one down congress's intent was to impose dirty ones forty seven through the it's anything quite like it if the judge would have reflected the six month sentence that would be a separate entry on the judgment right if you do separate consecutive send a separate line but it would not if he's convicted five years from that would not count as a separate as an office has found that this is nothing but a sentence and handsome and it is not an office it's not an element of an office and the guidelines directive to apportion the sentence in order to effectuate the mandate of thirty one forty seven is nothing more than an allocation of the total punishment between the underlying often ends and the discretionary enhancement you know of anything else like this where a sentencing incident results in a separate consecutive sentance if you look there are if you look at samuel which is the d c circuit case out of two thousand and two footnote twelve that case lists often it's characteristics that can also be charged as separate counts of conviction so in that case it's given you the juxtaposition between here the facts that the district court can find that may influence its discretionary range of punishment but look these can also be invoked in a statutory fashion and lead to a separate office of conviction and if you use that as an example to illustrate that this happens all the time you have an offer the judge gets to consider all of these sentencing factors and those factors play into its discretion to sentence but then you basically take part of it off and make it this separate consecutive sentence whereas here at least orally i know the judgement doesn't reflect this but orally the district court added in the enhancement to the guideline right then but then didn't reduce the guideline but added the six months is that is that proper it putting aside the issue of the written judgment i would say that she didn't go through the formal apportionment in this case but that doesn't result in error and i would point you to the seventh circuit decision imperiling and in that case the judgment was pronounced exactly as it was here you had a total of one hundred eighty eight months concurrent on three counts and i'm talking on i believe it was six months for the enhancemen and the appeals court in that case looked at the total punishment of a hundred and ninety four months and said that is well below the statutory maximum for your counts of conviction so even if there wasn't a specific apportionment for the enhancement it did not violate a in that case but there's no question that the guidelines do ask the court to look at the sentencing range including the three level office increase and to carve out a portion of that punishment to  mandate as thirty one forty seven three c one point three acknowledges that there's mandatory language and it's asking you to impose this additional punishment in a conservative nature and the only way to accomplish that through the guideline enhancement is through this apportion here it happened by virtue of the accident of the written judgment i'm sorry i don't understand what the government's position would have to be here since the written judgment doesn't have the consecutive sense you can't work backwards to undo it from the absence of that predicate in this case where three c one point three was applied because the court found thirty one forty seven was violated then it was in total to apply the three level increase in the guidelines that the just records said with the written judgment very commendably come up with this document i think sue a spontaneous wonderful lawyer ring that that on the question i think of it you know you're saying it is plain error crime of violence doesn't exist re man back how would you write the scope of re manned with the district or be able to conform than new written judgment to what it found thirty one forty seven hits or pronounce yes we believe it would by virtue of the fact that that finding on thirty one forty seven is a sentencing factor no different than any other off characteristic that the court would have to taken into consideration with the thirty five fifty three factors and look at its entire universe of sentencing factors to decide what the total punishment should be by virtually all one sentencing rema conflict i thought i thought the written judgment that door pronouncement is not ambiguous i would point the court to the record it pages eighteen to eight nineteen where the court's specific lee imposes the enhancement and would be permitted to revisit  its clear unambiguous oral pronouncement that it's imposing a concurrent term on the first three counts the additional term on the enhanced meant and the judgment simply reflected simply fail to reflect that additional six months charm you think me with that unclear as to why but upon reading and particularly where you're remaining only on the comma violence issue we have a new base often sled will but the district court is permitted to apply the same enhanced sentence and apply the first time around which would include this recent one point can but i would be more than happy to submit a twenty page a letter to the court later today with authority for that but the government would would assert that upon remained on it on an enhancement issue the courts  entitle to rely on other hansen's that were already made improperly made at the original sentencing i would like to also address the appellant's issues regarding a lien unless the court would like to discuss  so that increases the the punishment if the judge is going to and then on top of that you you have up to ten years of consecutive but there's a check to make sure it's not a double punishment it's one of the other and in the  and in five other circuits that have a considered it they can they look at the assimilation and i'm quoting the first circuit in randall on that term the assimilation of thirty one forty seven through the guidelines that is how it is affectionately it is not a separate often charge element of conviction it results in nothing more than the three level increase and is not subject to the defendant to this ten year increase lewis is the only case where the government charged the enhancement as an office and attempted to tack on an additional of imprisonment and when you elect that pass and that use of the statute it's not being applied to the guidelines the guideline of hands would not apply in that case and some sort of an either or bad but the vast majority of courts that have considered jury finding or specific guilty plea to the facts in support of that additional term that's a very unique set of facts that we haven't seen since that time and otherwise it is being consistently applied two or three level months the resulting concurrent sentences were sixteen months that six month increase was still well within the original guideline range as the commentary instructs you to stay with it and soon i have a sixty six month term well under the seventy one month advisory cap and even though the car according to that specific car out there was no double punishment that included the three level increase and then i could see if it was a seventy one month sentence and then she tacked on six months you might have a different argument but here even with the six month enhancement she stated well within the advisory guideline range with the three level increase using look at the total sentence to the sixty months would be a believe are honestly trying to simplify that they really do look at it as look you've got the statute that tells you to do x y z this is how we're going to affect joint this it's a reset of best trait and it should be and often scare touristic only we're going to give you a three level bump and  the court does what it does with that and it tries to really streamline that process and it's only as a printing and mailing have come out and you try to reconcile the facial language to the statute versus how it's clearly just apply there's a sentence and handsome and that it gets more complicated should be going on parallel to the revocation was going on at the same time as words ok so you would have and and in this case i would just highlight that the judicial fact finding is not really fact finding because it's plain from the docket the court and randall recognize that the defendant even if it wanted to contest the fact that they wanted a jury finding on the fact that he was on pretrial re couldn't contest that fact you have docket entries that show the original indictment the date of pretrial release and a superseding indictment if you get to sentencing before the revocation hearing is there any collateral aspect to the release the revocation is case if there are well before sentencing so it wasn't an issue on the hearing it occurred pretrial release was revoked it was a pretty clear cut issue that less than three months after he was let we have a bunch of cases raising this issue we will continue to have them yes i guess my broadest question is do you know of any clearer circuit of opinion that interpret the means elements distinction and mathis anywhere in the country the best courts effort to wrestle with what it means for crimes like texas burg other than your well what a rebate aside i don't again that that would be something i would be happy overbroad so we have several decisions that have come into play that find that the texas statute is not overbroad even aside from the divisibility inquiry it would obviously be a much more lengthy discussion about the breadth of that statute and what covers a statute in mathis was substantially broader than the texas statute it dealt with storage in safe keeping of property as opposed to dwelling and is this distinguishable on that basis alone analysis and i would point you to salon or mandas that came out just a couple of days ago and in that case the court specifically said we have declined to exercise our discretion to notice sentencing errors when the facts involved were set of mystic behavior and that is the classic this case is a classic example of percent of us to behavior you have a case where the defendant was picked up with distributable quantities of marijuana to loaded handguns one of which was stolen and less than three months of being let on  pretrial release was picked up running a trap house with another stolen handgun and as the district court found engaging in the same course of conduct that he was engaged in prior to his pretrial release that set of facts combined with his criminal conviction record which involved three prior offices for marijuana possession he has often says for another possession of a stolen hand and all of those factors would certainly influence this court's discretion to on the fourth prong or not it would seem to be a classic example of percent of his and where the court could very well say under plainer review we're not going to remain and that being said that's obviously left to the court to weigh those factors but we do believe that so lo hernandez would influence that corey that's a decision from it's from january twenty sixth and it's a published decision in this court on a page ten you're saying that extends or no miscarriage of justice law it certainly asks the court to not you know twine the third in the fourth prongs and find an automatic showing of the miscarriage of justice just because you have a discrepancy guideline range it permits it and it permits the court to say sure we have a guideline range that's different but on the facts of this case one of five agreements not appropriate and it would encourage the court to consider those factors even more distinctly little i see that my time is almost expired if the court does not have any additional questions we would ask the court to affirm the district court's application of the three c one point three and handsome and on remained following the crime of  reversal thank you right i guess i will talk about the very latest but your honors if that's an issue we did want to contest that this is the government's evidence right it was essentially presented as bucks right now i didn't catch that at the time it was a squiggle it wasn't  a look at appeal next to each other but this motion that the government brought up confirms what the documents want to look at them see the government does and it's false evidence to the district court about a conviction from one thousand nine hundred ninety seven when this defendant was seventeen years old as we p below this conviction qualified for points out of the guideline and therefore for the enhanced basic principle barely by the skin of its takes this is not an issue where there was repeated behavior in terms of the burglary of the prior convictions the fourth promise satisfied here without question that said the government's been great about this on this issue right they did find the other document which confirmed what the squiggles were and talking to people and figuring out that's really what happened but this made a huge difference more than bottom in about two years top in about three years on the guideline range is going to be put in for something that we all agree let's leave that aside take up the documents again and return to your question judge against and you're wrong it's just wrong the texas state court said these things are not unanimity is not required for these two means right so looking at it that way too in judge lynn recognize that to close question in this case so if we leave aside the documents right the issue that we actually raised and we could maybe take a period be again on bach and just in the court didn't want to do that for whatever reason in that case you should reverse on the and there are cases that say sort of you're a bad guy so we're not going to do it but you look at both the nature of the error and the court's precedent and the effect of the year and for all of these reasons right it's big you also combine it you look at the correct rate so you need consider the thirty one forty seven issue as well when you're deciding under the fourth probably right that it's not just those two or three years difference but you add also the three levels that were erroneous under thirty one forty seven right that there's at the same time the revocations going on and so you could have inconsistent findings the revocation preceded the sentencing in this case but i do want to point out something it wasn't clear from the record that revocation finding is made by a preponderance of the evidence that our motion to supplement made by a magistrate judge not the same as a finding by a jury beyond a reasonable doubt but it would be the same as the sentencing judge's proponents finding it sends i say preponderance i may have misspoken it was probable cause the judge actual finding was probable cause that he violated the conditions of supervised release so i apologize if i also the jury didn't hear any of that evidence if anything the jury was told it doesn't matter when the second offense was committed you don't have to worry about that as long as it was approximately when it says in the indictment nothing about pretrial release it's not a situation right was his counsel want them to hear it you have to have some bifurcated system i'm not sure that needs to be bifurcated just like any other enhanced offense they're going to charge the elements of that so maybe we work it out like an old chief stipulation if it's an issue where we didn't want them to hear it in this case mr simpson disputed everything every element every every charge it's all false it's his position right so he's not going to lay down on any of this including this important statutory advancement so the sixth amendment requires that i also if i could just return to the text of the thirty one forty seven statute the reading the government has urged this court and the one that suggested by the dicta in dyson cannot be reconciled with the text of the statute it's also inconsistent with the government's position at the supreme court  dean case on one twenty four seat right where they say that in addition to language means you do these guideline range and figure out what you can sin and so on and then you add this in because of the in addition to language in addition to the term for the underlying it's limits right the weight of authority though from other circuits on the thirty one forty seven here yes i think most of these are guilty plea cases most of them are cases like dyson where it's on thirty one forty six or something where it's admitted anyway you do not find at least that i found since elaine a case with a trial where every element was contested and the court says even though the statute very clearly says up to ten years in addition to the punishment the guidelines i'm not sure that the reading of five g one point one is right it a statutorily authorized maximum sentence and so thirty one forty seven by its plain text adds ten years to the statutory authorization and so i don't think you could cut it down imagine we only had the marijuana conviction a five year sentence and the guidelines before you did the five she cut down said three hundred sixty months allies the government's position seems to be the district court would not be allowed to give more than sixty minutes that's not what the statute says is just wrong read the statute for what it says and apply the six images current from the judge didn't give you a day off you must work for a tough judge