all right i think we're ready to t please the court i may have to dodge and i represent jeffrey beeman we have two issues that we presented to this court first is whether or not mr beeman has met his burden of presenting a johnson claim the district court the second issue has been the topic of much discussion already this morning and i'll begin there it is time for this court to redline the georgia aggravated assault statute from well i'm not let's let's talk  about the first issue first let me try to really quickly tell you how i see it now having not had the benefit of your or i think the only thing he can get relief for is for a violation of jock's i think any other violation he shows is time in so far as relief under johnson is concerned i think he has to have shown on the record that in fact but for the residual clause he would not be subject to this extra comprised and i don't think he has shown that in fact so that's that's that's my concern at the very front end and it's my concern could not be satisfied at least my own vote would be we don't will the dress them directly what you have set forth is as your view at the moment is very similar to what the panel in raymore articulated a year ago and in order granting that gentlemen's second  appear back in time into a record that is silent in which the district court did not speak the words residual clause is asking too much that path would be unworkable both in practice and in words kind of test i reject that direct evidence through magic words would be great for your client if you had that but you don't and maybe nobody knows i don't know  but there were also be i think a h at least one mechanism circumstantially to show that your client are some client was sentenced pursuant to the residual clause and that would ordinary article three judge it would have been obvious to that person that no other clause could have a plod but the residual and that would be available to anybody to attempt to show it wouldn't depend upon for the risk thirty years ago or whether the transcript was lost or anything else so i up put that in the mix too for what it's worth be most important here is that at the time of these sentences in years past district judges were not required to declare the path that they chose to apply the enhancement there were several options available to every district judge up until johnson including the elements clause and there was a dual clause it didn't matter which clause applied the courts were not required by law to say either of them out loud all paths lead to the top of the a c c a mountain that all today the defendant had some qualms about whether or not the a c ca clause applied that defendant could certainly appeal on one or both grounds and that's what we generally expect defendants to do if they have a disagreement with a judge's ruling to not yes that's right and in some johnson cases not this one the government has offered that defense that you've articulated a procedural default however it has not offered that defense here and it shouldn't we are permitted not our i'm not status in terms of procedural default but you say that the defendant is is without any ability to do things there you know there was no objection at the time so he could have done that had there been any problem well that's right at the time that he has been defense counsel for see no problem with imposition of the i c c and well that's because the residual clause was alive and well a defense counsel standing in a sentencing hearing in two thousand and ten would find any objection to the elements clause to be meaningless because the backup plan the safety net for the government in the district court was the residual clause and that that was far wider and captured many more predicates than the elements clause alone would have so it and i think the panel in chance here and my colleague in the southern district mara said the to put the onus on a defendant to raise what would have then been considered frivolous matters they had no basis in law and proliferate appeals is unworkable which is the reason why i think that that your argument that we're in the posture here today of reviewing mr bean and under the johnson analysis is that that's precisely right judge williams we have brays the chance exercise the chance path that was proposed a week after the panel and more and at that yes or no  the i need to take advantage of what you're going to tell me so you speaks more to say and i will actually listen to what you're saying yes or ok so i've covered the practical problems with this  so a practical problem for your client but if it's what you're saying is there's a chance that a signal clause was used that means there's a chant it wasn't there are that means there's a chance that the elements clause wh or it means there's a chance that the judge says both of them comply and if that's it we know that if the judge was considering the elements clause you're out of court because the elements clause there was no litigation were rivera told a movement look you can't really prove your climb but it's too hard so we're going to give you a bye i'm not aware of any case law like that when no there are my judge kinds but that isn't the actual question that we have in front of us at the moment we can't be required to prove our claim before entering the door to present that claim all that we're asking through this path that's articulated well by the panel a chance is that we be allowed to enter the door the question that chance raises is what happens in a silent record because then we know that there may have been implicated residual clause and handsome and if that's all that we can prove that's all that we ought to be able  to all to be required to show and that's enough that there might be that it might yes and yes judge can't because i just you know this may be the hall the united states but i have to be ordered back otherwise what you're i don't think and i say this with with heartfelt respect i don't think you come close to showing that and if you don't show that the all that you're saying is it could have been ba which is first and second on the merits of this predicate now today in two thousand and seventeen does this predicate fit the elements clause and if it does we lose so we're not asking though no no no because you lose on the o rule on the elements clause because of the statute of limitations period you might have to show that the elements could not applied in order to avoid a harmless error argument by somebody else but i don't understand the art i do not understand the argument how you can get relief under anything other than the residual in the reasoning that your proffering judgments which is it's not workable or practical because a lot and require a judge to speak out loud the source secondly it creates in principle arbitrary results it means that defendant today in pressing their johnson claims their fate is beholden to the fluke of fate whether or not the district court in some long ago sensing hearing made a decision explicitly on the residual c circumstantial evidence that could have supported us going back in time in putting ourselves in those shoes of the judge at the time is if there was a binding eleventh circuit case on topic for example if the george aggravated assault statute had been found to be a violent felony under the elements clause at the time of mr beeman sensing hearing then we would have no real argument here in response but the fact is not only was this court's jurisprudence silent on that question at the time but the district court below did not tell us what he was thinking in that silence alone leads to arbitrary result as i said the chance panel offered a compelling hypothetical that illustrated this risk imagine a district judge on a given afternoon she has to a c c a case is in front of her for sentencing in the first case she imposes the sentence based on a crime that we now know is residual clause but not knowing that years later we'd be combing through the records looking for these words from her if she didn't speak those words the next hearing with the same predicate the same  she spoke those words out loud in told us what she was thinking years later now only the second defendant would receive the key to the door to presses johnson claim the first would not and why is that as because in one case there was absence of error and the other case there was no evidence that ron well i disagree there was evidence of error in the first case because without an explicit declaration that some other clause was the source of enhancement then we can presume that it may have been the now forbidden residual clause well the difference between the two cases i suggest to you is that one case there was sufficient evidence to show a violation and the other case there was insufficient and so the results are different it is not startling to me that when the facts change in individual cases the results mr dodge let me ask you to think about this when you come back which is assume when you come back that we are going to rule i'm just saying assume a rule that you must make a showing that saying it's possible could be fifty fifty will not get it done and if that is so i'd like you to think about how you would respond to us if you can what argument she would make to suggest given the state of the law in two thousand and nine that it was unlikely once again made please the court can my name is larry summers feld and i remain honored to represent the united states defendant elements cause claimants on timely and in our view he doesn't set forth a johnson claim but before we get there i just want to see where we are procedurally i'd like to take a minute or two this case is not more an is not chance more and chance is in the context of a second or successive application that's required to undergo examination under twenty eight u s c twenty two fifty five subsection h that there be a new rule of constitutional law made retroactive to cases on collateral review by the supreme court that was previously unavailable but what's important about that is that review has to be undertaken by this court within thirty days on a very limited record without hearing from one of the parties and it's made on a prima facia basis once this court does so it goes down to the district court which has more of a record but again has to make the same determination of this twenty two fifty five age we're not there this isn't a second or successive petition this is a first petition and one major difference is that twenty two fifty five age is jurisdictional so under more chance the court has to find out if it has jurisdiction here we're merely talking timeliness that is a procedural barrier we have raised that if it's untimely it should be dismissed but again the court could decided on alternative grounds it's not an issue of jurisdiction the issue here under twenty two fifty five at three because we know this is more than a year from when his conviction became final so he can't fit into f one the other ones don't apply so he's trying to get his petition to be timely by saying it was filed with the date within a year of the date on which the right asserted was initially recognized by the supreme court if it's a newly recognized right made retroactive so the right asserted and our argument is that the right asserted here isn't the johnson right his entire twenty two fifty five motion is an elements clause issue actually his entire twenty to fifty five motion he raised in a numerate clause issue which was interesting it doesn't apply here but in reply he raised the elements clause neither one are affected by johnson and johnson explicitly doesn't affect those now again our posture here is effects solely of the residual so if the residual clause was an implied or was not applicable to mr b means conviction then all that it would rest upon would be the elements clause in this case yes and johnson tells us the residual clause not to be considered as an appropriate predicate so i guess i'm not going to standing what that argument is he has a final one of those attractive arguments but i don't know if it gets me to where we really need to be under that understand of the this is a final conviction as a final judgment controlling case law says defendant has the burden everywhere here we're going to reopen a final judgment he has to show that the right is sorted but within a year and more is a straightforward application of argument based on the rationale of moore and the rationale of chance and so undertaking that a similar rule here that says that he has not borne his burden to show that the date on which the right was asserted within a year of that da filed his twenty to fifty five straightforward application just like moore did in the other context would say he's not he has the burden he hasn't shown it and it's it's true here we can see that in two ways and then  johnson because under that sense and guideline there's no residual clause fact this is the same argument the residual clause has nothing to do with this argument and it's also made by his reply brief in this kind of i don't and this is a case in which the sentencing judge did not make some can outsmart from the bench in which he say i don't think anything else applies here but i think the residual clause does so i'm going to use that we don't have language like that in the record right correct so it seems to me that the petitioner in a case like bat would have to go would have to show it would have to talk about the other clauses i mean  eration calls and so forth because what they would want to be saying is they could not apply the and at the time of my senate saying reasonable judges knew that those would not apply and therefore we can infer that the residual clause can apply so the fact that they're arguing these other clauses to that never bothers me i don't think those arguments are carrying the day because i think at the thomas sentencing they they can't show that judges knew they would apply but i think that would be the framework you would advance you just don't get relief on land if you are an arm and my communicating with you i don't i don't really understand what the significance of that he argued the enumeration clause is i don't i don't hold that against all for argument just saying it's a claim it's really an element clause claim and it's not a floodgate issue either is it because where the sentencing court said specifically that i'm sentencing under the elements clause then johnson is not implicated nobody gets anywhere if the sentence in court said i'm sensing under the residual clause johnson is implicated and there we go here we are talking about where a record in a court is silent as to why it is sentencing then i think the law gives the defendant the capacity to say it is implicated in johnson because of the silence of the record and i think judgments in is is suggesting and i think he's been asking are there standards whereby reasonable inferences can be made that would be agree that this is a johnson issue no but i think our view of the record is more expansive than what you're suggesting it with respect to even judge edmonson is his suggesting and i think this gets to the first point of chance chance makes two points as my colleague pointed out first it suggests that the magic words issue that it is a matter of whether the sense in court said residual clause or not secondly it says more unworkable we think both of those incur are incorrect and because we don't think this is a magic words issue on part of the sensing judge what we're suggesting is that the court take a fair reading of the record as a whole the defendant make an objection to the p s r to file a sensing memorandum what did he say it sensing and what did the court say it sensing what did he say on appeal what not only on the record what was the law at that time did the eleventh circuit or any of the district courts address this issue under the rubric of the residual clause if those facts are in the record if that was the state of the law then we think there may be a circumstantial case the defense can make that the residual fifty five motion the defense the defendant utters the word johnson it opens the floodgates for all sorts of decisions according to the defendant which he has time down on which he did not exercise his appropriate know now i mean that that argument was brought up in the first the first set of johnson that it would open the floodgates because everyone would claim johnson and and and some of the people i sentenced did and you know it was aggravated identity theft so people in the system knew johnson was there but they were easily winnowed out i don't think that is the situation here i'm going to respectfully disagree this court at eighteen hundred second or successive petitions we had hundreds of johnson reported twenty two fifty five we still have scores remaining and it's over a year after johnson we're sitting here arguing whether when a guy shoot look to the statute and you look to whether or not the elements conform to the conviction in question you know we're not talking about how bad things are how much work we've got going on or you know who who who is ben upset by the brick or was killed with a gun i don't disagree doctrinally but when you said flo gates question i do think it relates to the work that's going on and to have a defendant simply utter the word johnson and then undergo this when ever defend it just puts in their twenty two five motion johnson for example have two defendants similarly situated one files is twenty two fifty five motion makes the same elements clause arguments we hear today doesn't say the word johnson we don't reach it it's untimely according to the defense and chance the other one has the same thing but says johnson now we have to undergo the entire analysis according to the defense it's a magic word from the defendant that it court said i sentenced you under the elements clause well when you're done true as the defense points out that not the typical case and what we're suggesting is we look at the record as a whole not just what the sense in court said to take a fair view of the record a whole frankly it's analogous to the plain error circumstance that's why it's not unworkable we're used to that on appeal we take a look at the record as a whole and see if the defendant fairly raised the issue below same thing here so you're  adopting the u s the united states versus sniff analysis here the plain error of not challenging the p s i i or why is that a different not just drawing an analogy when chance said that this view is unworkable in more were dry the analogy that when you view the record as a whole it's sensing to see if somebody's raised an issue and something that this court does a fair amount of the time and it's not on ripple at all so that that's our view in fact i'll point to a case the defense cites a case called wolf and within wolf it cites harris and it says that as a general rule the defendant has the burden of proof in a section twenty two fifty five proceeding but the burden should remain with the government in establishing that a conviction qualifies as an act of fence well that's not what the controlling authority in the eleventh circuit says and that's not how congress wrote the statute so we s court follow the wording of the statute follow its controlling authority and rule that the elements clause claims here which is all that's in the motion or on time i've been given some thought here inquiry this is the rule that i would propose the court set forth in looking back at the original sentencing hearing first if the judge declared reliance  elements clause then of course we have not met our burden secondly if the parties litigated the elements clause some clause other than residual clause maybe there were objections to the p s r maybe the probation officer use the elements clause in drafting her p s r maybe their sentencing memorandum filed on the elements clause issue then we can reasonably presume the district court chose that path even if she didn't speak those words third if there is an eleventh circuit binding opinion on the topic my binding what if there's just an opinion and that's the only opinion what's the binding part well if it was not a published opinion on point then it would not as i say by the district judge and we don't know if the judge would have felt obligated to follow that since well you're giving me arguments for for some so what i'm asking you is a lot of lines of what judgements and said which is is just let's assume that you are not going to prevail in your view that you know just saying johnson it could have been maybe was is going to get you there you've still got to prove your kid and sort of prove your case you may want to go to circumstances and what i'm trying to get out and be candid with you having done this for twenty two years in the district court and i'm maybe everybody was different from me but until this campsite i don't know that i ever even thought about the er situ a clause i think every case i ever did and i was thoughtful about every case was elements are enumerated crimes i can't and so to made this camp's was a real watershed ruling and in the year two thousand and nine we didn't have a did this ability principle from the supreme court so i'm guessing judge murphy in two thousand  divisibility never occurred to him and also in two thousand and nine we didn't have curtis johnson's use of force i'm thinking judge murphy another judge was thinking about that at that particular time and in fact judge murphy in deciding this case on twenty two fifty five went through the elements analysis it with the benefit of the scamps and mathis and he still thought elements applied which suggest wrongly to me that back in two thousand and nine when he didn't have the only case you have to offer that would have been a basis for him to rule and all of those things really trouble me in trying to draw an inference that he was relying on lee on the research will clause it seems very improbable i'm being candid the what i'm thinking to give you a chance to tell me why i may be wrong in mr bemis originally sentencing hearing judge murphy could've relied on both he had two options in front of him he didn't tell us which one he thought carry the debt if he could have relied on both i think you might lose if we take the test articulated because those would be independent grounds he would have been wrong about the recenter will but the elements clause back then you can't challenge your time barred on that he we can't look at that well if if the district court has relied on both if it's possible he relied on the residual clause that's enough to press the johnson claim now the district court then should evaluate the merits of that claim the elements clause issue as judge murphy did below the first discussion in his order was on this question we're having here whether we get in the door but then he went on to evaluate the merits nonetheless that should have been the only pillar that he evaluated in this motion i see that my time is up unless the court has more clarify it seems that the circuit has not we have more than we have chance and in there is not ban to publish definitive discussion and i'm i'm sure this is in your briefing can you tell us of any other circuits that have discussed this and what their opinion is that so far is your access to relief one circuit has issued a public opinion published opinion on this topic the fourth circuit in u s versus winston you'll find it in my rule twenty a j letter that i filed a couple of weeks ago and in that case the winston court weighed these arguments between the more in the chance panels and voted with chance in the district courts the vast majority of district judges in making this same evaluation have sided with chance  so in the courts where these are working out in practice they are continually voting with chance thank you thank you