first case for today is two thousand and fifteen four zero two two seven united states first says jose section sixteen could i ask if you were to win and i'm not sure shadowing he would have already last year been eligible under the guidelines that would be cool isn't that february of two thousand and seventeen if you were if you prevailed today so what i'm asking are you going to get any relief even if you win today yet just not a negative question to start off with and i'm not foreshadowing  understand but yes i actually have been so mr cressy i received a forty one month sentence under the guidelines with the eight level enhancement that we argue is incorrect but at the same time he received a twenty four months consecutive sent it would need to be decided to somewhat expeditiously in order for him to get relief but the answer to your question the offense at issue here is the texas assault family violence and the elements of that offense are causing bodily injury to another person who has one of the listed specified relationships to the defendant including being in a dating relationship being a family member being a household member this is a fence is usually a misdemeanor that mr offense was in his to felony punishment because he had a prior conviction for the same thing the question in this case is whether that offends qualifies under either section sixteen eggs or sixteen b the offense does not qualify under the use of force cause of section sixteen and because this court's precedent holds that it does not  vegas hernandez this court held that texas assault does not have the use of force as an element because it's premised on causing bodily injury and injury can result from many acts that are not forced including things like poison also  to the court towards multiple cases in texas that show that causing injuries is not the same as using force including assault prosecutions for things like putting bleach in an i v or transmitting hiv through consensual sexual contact here which is in the briefing and again earlier this week and various contrariness which i've submitted in the twenty eight jail or so automatically under our precedent you believe you are entitled to prevail on the sixteen a argument yes exactly and so then you get to the sixteen the argument yes so the question under sixteen b is whether this offensive by its nature has a substantial risk that physical force will be used during the commission of  two things i think are important to keep in mind about this analysis the first is that the level of force is still violent and destructive physical force and second that this analysis is still a categorical analysis that's focused on the elements of the offense and not the facts to post the specific conduct and what this means is that to qualify under sixteen d an offense must always have a substantial risk that violent or destructive physical force will be used during the course of committing the with these standards in mind the texas assault offense does not qualify under sixteen d again because it's premised on causing bodily injury and it's premised on causing minimal bodily injury which can result from either minor physical contact or indirectly without any physical contact at all this shows that the elements of the texas offense are broad enough to include many instances of committing the offense that do not have a substantial risk of violent force again i always discussed  little bit the texas all the fences based on causing injury not on forcible conduct so the cases involving things like putting bleach in the might be transmitting a to b sending a tweet those cases have no risk of violent and destructive physical and in addition to that texas defines bodily injury very broadly to include minor or any minor physical pain or injury and texas cases  driving around a waist or grabbing a breast and causing your bruise are sufficient to constitute bodily injury in texas but those injuries do not require conduct that rises to the level of the final supreme court was addressing use of force caused in the context of defining misdemeanor crimes of domestic violence and in that specific conduct context the court held that and or level of force was specifically a mere of a sense of touching which includes indirect causing of injury would suffice but the court specifically distinguished that context from the more substantial level of force that's required for a crime of violence which is violent force and in that discussion the court distinctly discussed things like grabbing or shopping or squeezing an arm and causing a bruise as actions that would qualify under the lesser standard for an offensive touching argue all of these alternatives so that you have to prevail on all of on them or did they not bring up to the district court the district so part of the argument was a big part of that that the overall argument in that case i believe you might be referring to and all yes objects exactly what i heard my understanding of that evacuees is that the government actually arguing to us today that they haven't advanced a sixteen argument are you i'm not i'm not and the reason why i'm not is is as i said the laws changed a lot so you know the arguments that were presented to the district court have been changed a lot by how do you win without doing that i don't think the court necessarily has to reach that that specific issue i do think it's a relevant point but the the issue before the court on the sixteen the analysis is whether this offense always has a substantial r violent destructive physical force i don't think the quote would have to reach whether the prior conviction that enhanced mr garcia's offense to felony punishment is a sentencing enhanced or an element of the offense to make that determination and i have advanced that argument is because the government has relied quite heavily on the argument that this is a domestic violence offense and arguing that it qualifies under section sixteen b but when we actually look at what the elements of this offense really are it's easily distinguish from the cases in which this court has held that domestic violence offenses qualify under sixteen be i think the most on point cases sanchez escanaba which did hold that i believe in new york criminal contempt statute qualified and discussed that offense as a domestic violence offense but the court discussed two specific things about that event that made it qualify under sixteen b first that there was an element that a court order of protection had to have been violated and second that because there had been a court order of protection that indicated there was a prior assault of relationship between two specific people such that a confrontation between them would always have a risk of violent force but neither of those things  offense there's no element that there's any court order of protection that's been violated and there's no element indicating that there must be a particularly assaultive relationship between two specific people and here's why i think this sitting in his not an element of the offense for purposes of the categorical analysis so my argument is that prior conviction really has no relevance to defining what the if it is but even if it did this the prior conviction is not required to involve the same think tim as the second conviction so just there must be one conviction that involves a victim with one of the specified relationships family member household number to partner and the second dimension must involve a victim with one of those specified relationships but there's certainly no requirement that it be the same victim so sanchez as canal's analysis premised on there being a particularly discordant history between two people is just not present in the elements in any respect and the second question is assuming that the court word or decide that casaubon did change is the you would you automatically lose so i'm the first question no i don't think it's all as long or it does bode ill for me and in some ways i actually think it's helpful to me so first you know the tasso on that gonzales i'm wary of court does rescue sixteen b from vagueness distinguished the analysis and sixteen b from the ten houses that is vague and said it is a more definite and more bounded analysis so rather than imagining this hypothetical ordinary case stand on the second question no i do not automatically lose if the court were somehow to decide that castle and overrule sixteen a precedent because the as texas defines bodily injury so minimally that can result from actions that do not rise to the level of violent force so even if causing injury could be forced it would still require violent force and here that can be things like pushing grabbing  wrist which is not sufficient to rise to the level of violent force i will just briefly note that we have preserved the argument that the fence can't qualify under sixteen d because sixteen b is big which is of course foreclosed in the fifth circuit by the us all as well gloria but remains continually pending in the supreme court so it's a pm court did hold a sixteen day we have good morning i'm a peace accord and reports to the united states i apologize for my four way sis's a going away present for my one year old son texas assault family violence qualifies as a crime of violence under both eighteen u s c section sixteen a and b and so the district court properly applied the aggravated felony and handsome and under two a one point two b one c standing here today the simplest path for this and tales of substantial risk that force will be used in the course of committing the office but like my friend said we're all waiting for garcia tomorrow we the government my office wants an opinion and garcia to my as much as i think my friend does and we recognize the possibility that sixteen b is ruled unconstitutional e bay and that is why we continue to press the sixteen a arguments and so with the court's permission i'd like to proceed first by explaining why this does qualify under sixteen a and then also address sixteen b of course i'm happy to address them in either order the court knows the government's argument it's not unique to this case castleman abrogates this court's precedent distinguishing between statutes requiring the causation of bodily injury and those requiring the use of force we recognize rico me here here rejects that argument and just two days ago commands and so let me if i may let me explain why the government believes that rico me he'll was wrongly decided because that plays into the rule of order least orderliness argument which i do think this co law definition which the supreme court upheld did apply to the misdemeanor crime of domestic violence there into a you have the footnote for where the court recognizes that multiple courts including the fist circuit have held that mere alton's of touching does not rise to the level of violent force in the context eighteen u s c sixteen and nothing in today's holdings has set into doubt we are not here today claiming that mere office of touching qualifies texas assault under twenty two one eighty three is mere off into touch we are here under one bodily injury assault and that gets to park to be part two b is about what it means to use force and in part to be the court explains that the causation of injury is still  use of force when they're explaining that they also recall curtis johnson the two thousand and ten supreme court opinion that is not in the mr mean or domestic violence context they use that to explain why this poisoning example does not fly this rationale applies more broadly and you don't you get to voice seem in two thousand and sixteen in voice scene is again about the use of force and whether or reckless act  suffices as a use of force there justice kagan explains that neither party pretends that the term use has any particular common mall definition as opposed to force we are here saying that a direct application or indirect application that is about use not force so me he is wrong to say that is that castle meant analysis doesn't apply now domestic violence context the government's point is simply that either both of the opinions must apply in terms of their analysis of what it means to use force must apply more broadly or neither of them can and in fact at one point i think my friend understands us because in their reply brief they argue that how women doesn't rica's are wrong they decide why are they wrongly decided because in their view voicing is limited to did to the domestic violence context so it's either both of them apply more broadly or neither of them do and because how him in doesn't reek has came first and they're applying it more broadly it necessarily must follow that castleman does too we understand understand i readily understand the argument and and the uphill battle that we face but we are we do stand by it and that's where we're making it but didn't cause the deal exclusively with the level of culpability required for you to see it like it had to do with yes it had to do with the mens rea of whether a reckless act was a use of force but it's still more generally about what it means to more in line with the other cases that you've cited the opposing counsel says they still win under sixteen can you address that point sure this is this is the argument that texas is definition of bo doesn't rise to the level of violent force just to make it clear up this argument was raised for the first time in the reply brief it was not whether texas bodily injury requires violent force was not raised in the opening brief it was not raised in the district court as an argument as to why it wouldn't qualify so ordinarily i think it would be forfeit having said that assume that it were probably before the court seven is defined as physical pain illness or any impairment of physical condition curtis johnson which is defining violent forces force capable of causing physical pain or  definitions go hand in hand we also have from this court published precedent such as hernandez hernandez with this court say that a painful and obvious injury readily meets this standard also  time these cases are cited in the government's brief the thing impairing once condition is violent force as justice scalia's concurrence also states and  castleman a mere slap in the face suffices this is minimal this is this minimal injury it doesn't work because again texas has definition of bodily injury just matches example if somebody would be it if somebody were to just push me and there's no injury that results from that i don't think it would i don't think it would call finder bodily injury but if it's a more forceful push that just as it as a threshold matter on sixteen these d as applied argument is preserve the whether it's unconstitutionally vague is not it's on plane air review oh i do think this court is whether family assault violence is not placing bleach in a family member's it is not transmitting h i b to a family member it is not sending a tweet to a family member although again  it's a physical confrontation between two family members in espinosa which is which the government has cited this court held that bodily injury assault under a one without the two components soul is purposeful is violent and aggressive in nature and it requires a confrontation that needs to bodily injury that applies equally here especially in the context of family violence a saw as the government stated in one of its responses to the twenty eight we are not relying on the prior domestic violence conviction in terms of the categorical approach we are relying on is and as applied but it's rationale still extends here here's the quote from consolidate one gloria twenty two zero one b two is in that category of crimes that while capable of being committed without the use of physical force always entails a substantial risk that physical force will be used we think that's that is directly on point here and while it does not opens also great does not for closing argument which is why this court denied the government's motion for s would be for this court to simply a fur on sixteen b grounds we just recognize that that may not be a possibility depending on what the court does with garcia tomorrow are you a we're no we're not we haven't made that request we're not opposed if that's what the court wants to do i know that's what the court did in medina soriano which was argued in november the government isn't opposed again we want an opinion and i am hoping that when the court resumes and i think they're going to issue opinions later this month that hopefully that will be on the docket but we don't know we're not f immediately to rule on sixteen be grounds if the court has no further questions we respectfully request that you affirm the judgment of the district court thank you just a couple of points first i want to respond to what the government side about the bodily injury argument being raised only in the i believe it may be true but i would also point out that rule is generally a description that this court applies of the intervening change in precedent there's no reason to strictly adhere to that sort of rule particularly when the government has also raised arguments on appeal that were not raised in the district court so i just did want to point that out  and holding that residual clause require the court to quote imagine how the idealized ordinary case of the crime subsequently plays out and then judge the risk of injury from that hypothetical  longoria opinion goes on to say that the analysis under sixteen d is more bounded and requires instead the court to look at whether the offense naturally involves a person acting in disregard of the risk of physical force might be used so it's not i don't believe it is the same hypothetical ordinary case what we're looking at is the elements of the offense and whether the elements of the offense always involve a substantial risk of violent force and this is the many of the arguments we are making here or not presented to the consoles on gori a court because the merits of sixteen d were simply not before the court so i had no reason to address the level of bodily injury required in texas because that was just not a question that was presented to the court conduct can qualify as the use of force in this court's opinions including howell and doesn't reek as that apply blazin are also about that issue none of those cases have anything to say about the cultivation of bodily injury and then of them disturb the precedent that causing bodily injury is not the same as using force in the crime of violence context and i would also point out that as i read fran's contrarians the case from this week it's not are bound by the rico media but also calcium in itself made a distinction that the same analysis does not apply under the misdemeanor crimes of domestic violence and crimes of violence so i think there's two parts to that it's not just saying that it's following riddle me here the opinion also does its own analysis of the merits of the argument and again as the court has noted it's aware the government made all of these arguments based on was in to the ranch country as court and even the concurrence that takes issue with this rule about the causation of bodily injury doesn't i even mention boise and so while i of course agree that it will silence is not binding i think here it's quite illuminating as to the viability of the