good morning may it please the court my name is brandy gallery and i'll be arguing this morning on behalf of the united states when the district court considered mr pickett second twenty two fifty five motion show that he were entitled to relief so that he could meet his burden is by looking by proving by historical fact under but doesn't help you any does it it does not help mr beam or mr  us figure out what was in judge middlebrooks his mind as i believe that it does your honor because there is clear case law on point from the eleventh circuit that is binding precedent in united states versus glover that this offense that one of his offender you're talking about looking to case law that may provide circumstantial evidence or and issue of what must have been in his mind at the time but i'm asking a slightly different question maybe it's just semantics by historical fact what we would look to is the record i mean to begin with there's nothing in the record or in the anything he said there's nothing in the p just nothing there so the question is is there a case law out there that powerfully and clearly indicates that he must have been relying not just on the residual clause but on the elements clause as well yes tell me what case would have informed that determination so that we could circumstantially in far something about his state of mind when he told us nothing it's his state of mind it's united states versus glover your honor the site is for thirty one f third seven forty four and it's an eleventh circuit case that is published from two thousand and five and what that case does is lays out what the elements clause is and then lays out what the elements of florida battery against a law enforcement well in this florida battery and then makes the statement because battery on a law enforcement officer is a crime of violence under the guidelines like a holding the maybe i will concede that there are subsequent cases that say it was holding but if i were coming at it just speaking for myself it looked like victor but even if we said it was holding didn't we say it was holding after beyond the point where it could possibly have affected the district court yes your honor the the case though if all he had was glover why wouldn't he ever read it the way i did and concluded that was dicta if he read it at all and concluded he wasn't bound by it use all of the cases that discuss glover maintain that it expects that the ruling on this point that we're talking about was a holding there's no case anywhere that i'm aware of that suggests that that was dicta so so you can see how someone might look at that and say looks like it wasn't necessary to the holding a case i can see that that is the argument of my opponent in this case but i don't think that any judge at the time reading glover searching for a determination of whether the predicate offenses that he was looking for at would qualify as and hansen's under the aca i don't think any judge at the time would have read that and been concerned that that was dicta because what is happening there is that yes the primary argument in that case was whether or not the offense should ha been determined by a judge or by a jury but once the court made that determination that it was a question of facts i don't think it was addictive for the court to then take that further step and go ahead and answer the question of in this case it if we're going to answer that question of law it is a crime of violence in this case so to answer your question i don't think that judge middlebrooks or any other district court judge reading it at the time would have believed that that was dicked i think that they would have believed that to be the intent of the eleventh circuit and would have followed that  anything on any other cases that you can rely on that suggests that he must have been relying on the elements clause as well as the residual that is their primary case from from the time  come away with the sense that we're just not sure what was operating in the mind of the district court because he had no reason to given the state of the law at that time to say anything more than he did say why or we not just send it back to the district judge and give him an opportunity to meet his burden and the beam and it's tough purdon but you have the same district judge so he's in a position to tell us what he had in mind it would require maybe i don't know if he's in a position to do that it would require him your honor to basically say that he was not following binding eleventh circuit precedent at the time and i don't i think that we can assume that where the record is silent that we can assume that our district court judges are apply this health issue turns on the strength of your argument turns on whether or not one might come away with the sense that the proposition that you're asserting in glover was dicked as opposed to holding or holding as opposed to that that's the whole issue well it's certainly a big part of the issue your honor however i don't think that it is the entire issue because this burden is on the movement to show that he was not sentenced so that he  was he needs do is establish that the research will clause was soley responsible for his sentence no question that's like working more likely that he's got to show by a preponderance of the evidence that the district court decided this case based solely on the residual clause that he didn't do it for joint reasons alternate holdings he didn't look at the elements clause etc it was only the residual clause right i did no question about what his burden is i'm just a hard pressed to understand why we ought not to give the district court the first crack at deciding that question if it isn't a slam dunk at this at this stage in the proceedings well we're not there and what compounds that i'm just speaking for myself i mean he's already been released they want us to direct that he be remanded to the custody of them bureau of prisons you might be right but why shouldn't he be given the opportunity to show the district judge or at least through argue before the same district judge to pass sentence on round one granted the twenty to fifty five on round two and now has to decide what demon does to the case on round three because he's not able to point to any specific case that shows that his prior conviction  may please the court andrew adler from the federal defender's office on behalf of albert pickett your honor the record in this case is actually not silent footnote eleven of the district court's order in this case expert says that the judge  recognized that mr pickett had little reason to object to the enhancement because of the residual clause so he is expressing his understanding that at sentencing the residual clause clearly supported the enhancement and that was the reason why there was no objection we think that and of course as your others point out it's the same judge who presided over the sentencing ten years earlier so regretfully we overlooked the import of that comment when preparing for the priest but we have emphasized in our response to the government's twenty  letter and of course it's part of the record the court can affirm on any ground and of course it's not only in the record it's part of the order under review here and we think that explicit comment obviates the need for the court to even consider the legal landscape it's not circumstantial it's direct evidence of what was in the judge's mind ten years earlier at the very least it even if the court is not sold on what he meant by that comment it is a compelling reason for remained we don't understand any reason why the government would oppose  this case particularly in light of that comment and particularly given that this court has in at least eight cases re mantid were being met your position is we need not remember at all to the district court to make such a determination on the beam and that it's clear from this record that is our measure burden on the beeman and therefore we would simply deny the government's application that's your position it's our primary position that the court would affirm if the court is not sold on the meaning of this comment in footnote eleven then the only appropriate course would be to remand so that we could go back before judge middlebrooks and find out what he meant by this comment what he remembers about the sentencing just as this court has done in eight other cases where beeman post honor no this court has not published any rulings at all applying this court's decision to be in there all unpublished but they're still eight of them and we don't understand why mr pickett should be treated worse than any of those movements particularly given that the record in all of those cases was silent here we have an express comment from the judge about what was in his mind ten years earlier we think that that comment that explicit comment is more than enough to show more likely than not that the residual clause alone was the basis of the enhancement and just for the courts you know review two of the cases were cited and let me just ask you a follow up question if this court were to come away with the conclusion that it simply cannot tell what the district court had in mind because at the time the district court didn't have much reason the say a whole lot and didn't say much i'm not faulting it because i don't think you had much reason to do  than that he did but now the landscape has changed and we send it back and we say you decide whether or not the petition has met its burden under beeman judge i want to put on some other evidence judge not just side to legal with already but some competent evidence dealing with historical fact and if the answer is yes what is it that fixin to do in footnote four of beam in the court recognized that there's all sorts of ways that a movement can satisfy his burden in this particular case the primary thing that we would like to deal is to inquire of the sentencing judge what was in his mind interrogate the judge i wouldn't call it interrogation your honor i would say what would you call it i would simply difference i believe is just a any inquiry to the judge he made this comment in footnote eleven we would like to know  what he meant by that he's free to tell us a lhari him in order would tell him we don't know what was in your mind you tell us right so so that alone would be sufficient for that there's other evidence that we might seek to discover if we pointed out  footnote four of our brief it's possible there were probation training officer manuals at the time that specified which clause and if there was no direct evidence of which clause was being relied you want to know whether the probation department have a training manual that answered the question and whether they shared it with the judge or whether the judge used that to decide it's just one possible example but i think the primary route would be through the district judge himself and i'd point out that another judge in this district  has gone out of her way to write orders specifying that this was her default practice in two thousand and five in two thousand and six because the residual clause was so broad i put you certainly don't need a training manual for that oh no of course not that's only if the judge himself could not recall what his practice was or what happened at this particular sentencing and we believe it's quite easy for a judgment of brooks to to do that and i don't think we would have to interrogate him i think he could just tell  us so if if on the other i'm quite sure he will i agree your honor and we believe he actually already has in this footnote he wasn't directly applying beeman but we believe that is the only way to read this comment in footnote eleven says by the way i'm not the only reason i even know which statute certain issue here is because the government provided the judgments in this second twenty two fifty five proceeding but then he says well i don't fault the government for not providing these shepherd documents in the sentencing because mr pickett didn't object then he says and i recognize that mr pickett had little reason to object because of the residual clause he doesn't say because of the residual cause and the elements close or because of the elements because he says because of the residual clause we believe the only way to really mind he didn't rely on another call even though he didn't specifically it doesn't absolutely pro preclude that possibility but all we have to show is more likely than not under beeman and we believe that that comment is as good as him saying in sentencing i'm relying on the residual clause to uphold the enhancement he's just doing it ten years after the fact and he's expressing what his understanding was at that time so we believe it's a very powerful comment it's compelling to wrecked evidence of what was in his mind and that's what separates this i suppose of that so and we send it back agree your honor we're not opposed to a remount we just are trying to make the point we believe it's a very powerful comment that provides the basis for a firm it's on its own if the court doesn't agree of course we believe every man would be the appropriate course and we'll ask him and find out for sure but i'm just trying to point out that under beeman we don't have this reasonable with no me what was necessary to the holding in the case your guess is as good as mine your honor we don't believe that anything in that one unexplained sentence that the government is relying upon is dicta and it's for two reasons not just the reason we point out in our brief but there's a second reason which is the court goes on in that to vacate the sentence on statutory book or grounds on entirely different grounds so the whole reason itself was both is quote a crime of violence yes that's it correct that's the statement it's but the disadvantage in that case did not dispute that as a matter of law that florida battery conviction was was a crime a ballot that was not his argument is only argument was that it was a jury not a judge that should have made that factual determination and this court said no that's wrong for two reasons one it's not a factual determination it's a legal determination and second it's part of the apprentice exception for prior convictions so the court rejected that argument and then it included a gratuitous paragraph in which it makes this unexplained comment about it being a crime of violence something that the defendant does not dispute then in an entire next section of the opinion the court vacates the sentence because the judge considered the guidelines to be mandatory and  there would have been no reason to even address this whole section of the opinion that we're talking about on constitutional bowker error because it made no difference to the outcome of the opinion as this court has said time and time again discussion in an opinion that's not necessary to the resolution of the case is is dicta now we acknowledge that this court subsequently after mr pickett sentencing treated that comment as a holding but we don't believe that a judge looking at that without the benefit that would be a problem if those determinations predated correct that would be a that would be a didn't grab a judge middlebrooks i take it it's clear that each of them post dated yes that is clear the fencing in this case second the first case to treat the glover statement as dicta was i believe ya know so i guss to darrow which was also in two thousand and seven but later i believe several months later there was nothing before the sentencing in this case that treated that in passing unexplained comment as a holding and we believe that any district judge looking at it would not treat it as such and again that's not for that's for to reason it's dicta for two separate reasons so and we really don't need to speculate about that or about what the legal landscape would have taught would have shown to a hypothetical reasonable sentencing judge at the time because we have this comment from this particular judge in this particular case so the legal landscape as honor pointed out is is a circumstantial basis to find out what a judge might have been thinking at the time but we don't need to resort to that here in light of the explicit comment the only other thing i'd point out about the landscape is this court's decision  rosier which was in two thousand and two and it expressly held that florida battery on a law enforcement officer satisfied the residual clause and did not satisfy the elements clause now that was an unpublished decision for sure but we believe that it illustrates exactly how courts were analyzing this issue at the time and it was obvious to discord in two thousand and two just as it was to judgment approx five years later that these florida battery convictions clearly satisfy the residual clause this court had a developed body of law predating the sentencing in this case where it was holding that all sorts of nonviolent offenses satisfy the residual course rosier was the norm public opinion yes it was or have been to her see the real problem candidly speaking for myself that i have here is it just wasn't much reason for the trial courts to spend much time worrying about whether it was the our women's cause or the residual cause when it so obviously fell within one and maybe it fell in the other and maybe it didn't and nobody really was making a big deal about it at the time so there was just there's just nothing there it's just very helpful in the cern ng what he had and more and now it's a big deal but it wasn't him we agree your honor and that's why most of these cases are silent record cases because there was no reason for the judge to articulate a basis and that is the reason why this court has denied relief under be imminent so many cases but in this case we don't believe it's a purely silent record case and of course being in post dated the ruling here but yes q slightly different question i'm curious how many other cases to the extent you might especially ones that predate beam enough course were the reason why this case predates beeman is because the appeal in this case has been delayed the government sought multiple extensions before filing that's been we're not faulting the government for that we're just explaining why  this case is still going on even though the ruling predated beem and i can't imagine there's too many more of those kicking around out there so but but you know on the other hand this court just decided one this monday indicate in the carmichael case that also predated where the district court's ruling predated beeman so there may be a handful a few more out there but your honor we just don't see any any need to if you're honest question is designed to figure out whether to publish a decision in this country that is we don't believe that's necessary if the court's resolution is just a rematch and because the court's done so and eight more cases we don't think there's that many more to follow in that same posture and there's no real law that is being established by doing that if the court was going to hold in a firm that we've met our burden based on this comment in the record and or the legal landscape then that may very well provide useful guidance we think that in a future case where the record is silent and that the only issue is the legal landscape and there is no possibility of a remained than that would be the case the appropriate case to maybe publish a decision and provide guidance on how to analyze the legal landscape arguments under beeman we just don't i have two questions that i would appreciate you addressing in the course of your were bottle in any order you want but tell me what you think of the comment that judgment of brooks made in footnote eleven and what inference of any one might reasonably draw whether that's enough to take him over the line he only needs fifty one forty nine to establish  honor i'll take them in that order first as far as the footnote comment our position is that it's we feel very strongly that that is by far not enough what the judge is saying there is about the elements clause or i'm sorry about the resurgent class and there's no question the judge may have relied on the research will close what he needs to prove in order to meet his threshold burden however is that he relied on the research will close to the exclusion of any other clause and this comment makes absolutely no reference to excluding reliance upon the elements clause and suggestive of what was on his mind it was residual not elements the only thing he talked about was something that could only relate to the residual  he didn't choose to say anything about the elements clause and chose to say something about the residual clause we ought to be able to infer that that was the basis upon which he decided the case that's the argument i think that that is  i'm sorry of the research will clause and realizing that given how broad the research will clause was the defendant may have remember what he's talking about there in that footnote is making a point about why it might not have been worthwhile to him to challenge the factual underpinnings in his p s i for his prior convictions that's the context that that comment is coming in under so there there would not be any reason for the district court there to also bring up the elements clause at that point the no your honor there's no discussion whatsoever as to which clauses are being relied upon just that there were four prior convictions and making reference to each of those four prior  when this court writes opinions and chooses to publish them they are binding law and we don't need to wait for a subsequent decision to come down the road to tell us whether or question as i understood the case the defendant argued that the sentencing court made a constitutional era because it violated booker right wasn't at the heart of what they said in a book or violation occurs when a sentence is increased because of an enhancement of fact that was neither admitted by the defendant nor found by the other jury that was what they were talking about and glover argued that the court had found that as offense constitutes a crime of violence but we explained to reasons why that wasn't the case we said one book are left wholly undisturbed the prior convictions exception to the rule that a jury must find facts that enhance the sentence and two whether previous conviction is a crime of violence is a question of law not a question of fact because it requires the interpretation of the guidelines i understood those to be the bases for the holding in the case and then you get as he points out another paragraph didn't read that to be answering the question quite the way you suggest it is what am i missing well i think you're on her two things i think first at the time i've tried to say this before but maybe i didn't articulate it clearly i'll make another attempt but at the time when district courts would have been looking at this opinion to determine how the eleventh circuit felt about bollea they would have come across this opinion and had every reason to believe that the eleventh circuit in a published binding opinion was under the impression and wanted lower courts to rule that  polio was a crime violence or in this case a violent felony second i think the and the argument of glover was broadly speaking one where he was challenging his the legality of using his prior conviction as a crime of violence so he attacked it we all can agree on the avenue of whether it was a violation of book or pretty but broadly speaking what he was arguing which the only thing that would have been helpful to him at the end of the day is whether or not h offense was going to count and so when this court went ahead and weighed in and said yes the offense in any event does count to the extent the court held booker left undisturbed the prior convictions exception to the rule that a jury must find the facts that enhance the sentence that has nothing to do with the proposition being urged now does it it's not necessary to that statement that rationale that they added this additional observation is that you're asking whether to clarify are you you're asking a method whether the comment in this last paragraph that we're talking about that one sentence was necessary to a holding that book are left undisturbed the prior convictions exception to the rule that a jury must fact find facts that enhance the sentence didn't seem to me to have anything to do with that holding well  though it may not be necessary but that who the hell i was asking is that necessary to that hold and i think the answer has to be no it may not be however it when you're looking at the defendant having broadly attacked or challenge his sentence i don't think it was unexpected for the court to finish answering the underlying question there which is of course is this what this is a question of law but what's the answer under the law and that's what it then went ahead and did it and what the answer is was not necessary to the characterization of the matter as being a question of law not the way that glover presented the argument is it necessary to the alternative holding which simply says whether prior conviction is a crime of violence is strictly a legal question and not a fact question i to either of those holdings why wouldn't it have been fair to characterize this comment as that it's interesting it flows naturally from these other observations but strictly speaking they didn't have to say that in order to reach the conclusion they reached in the way they reached did they that's the problem that i'm having you might be right in another court read it as holding but it struck me reading it that i might really come away with a sense that there wasn't really necessary i think where we are as years later now looking at this in a different context we can pick it apart in the way that we've done here and say well oh it's obviously should have dicta should have been obvious to courts to district courts that it was dicta but it wasn't your honor and we know that because it wasn't even it was it was plain as day to the eleventh circuit in all of those follow up opinions from the eleventh circuit that very clearly stated as we held in glover they say that in ya know santa steen oh they say it in hernandez in young in johnson and all four of those cases are already in two thousand and eight so it wasn't even that much time that had passed the it was as the case law was evolving on battery offenses and how they were going to be viewed as predicate offenses the law was evolving and it was a struggle of courts trying to figure out how they're categorizing them and it was clear to the eleventh circuit shortly thereafter that this was a holding and i may answer slightly different question and that we've gone over the time but i just i'm curious how many asked mr bradley the same question do you know whether there are a whole bunch of these cases still kicking around i because we were managing a whole bunch of them because we just weren't sure i believe your honor that there's a total of eight now that have be been reminded i believe there are more than twenty that this court has already gone ahead and just decided right but how many others is what i'm asking other than the twenty we've decided in the eight we've remanded efforts if i may be your shortest one final point iran of course as far is that when we're trying to get into the head of the district court and what the district court did at the time of sentencing one final point that i would invite the court to consider is that in the resolution of mr johnson's first twenty two fifty five he clearly found that the bollea offense qualified under both the research will clause and the elements clause now that was after certainly curtis johnson and it was not at the time of his sentencing and i know that that's the real focus but i think if on remained if we were to ask the court the court would be in a position not only of saying that it wasn't following glover which was a binding precedent at the time but also that it did not rely on the elements clause at the time of sentencing at all but then it did rely on the elements clause three years later in resolving his first twenty two fifty five he's very much thank you we'll proceed with the next case george ama