whatsoever and instead the common law provides the mens arabia so when you look to the common law the supreme court of north carolina has said over and over again  suspense and that exact same argument was made and of course we do not have the case from the north carolina courts directly on point for assault inflicting serious bodily injury and since of course north carolina doesn't permit certification  federal questions it is left up to this court to determine whether north carolina the north carolina supreme court would recognize would allow assault inflicting serious bodily injury to be committed through culpable negligence and i submit that when you look broadly as this court did invents and of course this court in vinson when looking at assault on a female the court the government said well we've looked at six hundred eighty one different cases of assault on the female and we haven't been able to find one case that would involve anything less than intentional conduct but of course the north carolina courts had not spoken directly on assault on the female and so this court looked broadly to north carolina law and solve that there are a myriad of assault offenses in north carolina that can be committed through culpable negligence including as the government recognizes on page eighteen of its brief manslaughter assault inflicting serious bodily injury assault with a deadly weapon with intent to kill inflicting serious bodily injury and i think probably the most a political perhaps offense in this question with the as far as the elements go would be felonious child abuse inflicting serious bodily injury you have the exact same elements as assault inflicting serious bodily injury only that the two additional elements that it has to be committed against a child and has to be committed by care caretaker or parent and of  course the north carolina courts have specifically held that felonious child abuse can be committed through culpable negligence and that is a much more serious assault that is a class b felony as opposed to just assault inflicting serious bodily injury which is only a class f felony which is fairly a lower standard when they're looking less than it is your honor and this court has held that specifically in united states versus peterson in terms of north carolina involuntary manslaughter specifically held that north carolina's culpable negligence standard is a lower standard than recklessness which requires a reckless disregard as opposed to in north carolina requires only thoughtless just regarding the reckless conduct or require something less than intentional conduct was seen as we stated in our response to the government's twenty a j letter does not apply here for two separate independent reasons first the supreme court and  was very careful to note that it was in no way overruling laya cal it was leaving open the square and as to whether a misdemeanor crime or as to whether a crime of violence under the sentencing guidelines under eighteen offense of touching and so the supreme court said that given those different contexts in the different breed of course there may very well be good reasons why anything less than intentional conduct would not would not suffice for a for a crime of violence and of course this court has held consistently held that you do actually have to have intentional conduct an intentional  suffice for a crime of violence and so this is the second reason that that wouldn't apply of course again as as we've already discussed that north carolina is culpable negligence standard is actually lower than recklessness and so again that the government in bringing up was seen i understand the the government's trying to muddy the waters here but that would would require this court to overrule well settled precedent in this court at that to qualify as a crime of violence you do have to have an intentional mens rea and that north carolina is culpable negligence standard is lower than recklessness now the government is also trying to say that this crime is divisible and we don't think that there is any evidence to show that the crime is divisible as i said the statute doesn't define any sort of mens rea and actually i think this is even easier than the case of yes your honor and so on like all the examples that the government supplied states like maine and arizona and missouri that expressly designate different levels of culpability in their statutes that's not what north carolina does instead north carolina simply says well all assaults have to be intentional but that actual intent can be supplied through culpable negligence the pattern jury instructions never instruct the of salt differently then and then tensional assault we don't think that's true but even if you buy that even if you agree with the government that the government the state would have to assert a theory of culpable negligence in the indictment even given that the necessary limitation on that is of course that the state can only indict on the theory of culpable negligence if it is aware of that theory at the time of and i meant and of course in most cases the state's not going to be aware of that the assault was anything other than intentional and so what can happen is the defendant of course is free to come forward at a trial and say look i did not mean they they're free to negate the mens rea element of intent and say look this was accidental i didn't mean for this gun to go off it just charged just like the defendant just like the defendant and write him mel just like the defendant nationwide look this was an accident and didn't mean to do it if that happens as this court recognized invents and the jury is going to get an instruction on accidental injury and that instruction which is north carolina pattern jury instruction three zero seven point zero eleven states that an injury is accidental if it is unintentional occurs during the course of lawful conduct and does not involve culpable negligence and then the jury's going to be instructed on culpable negligence and once that happens the jury is free to go back and say half the jury can say i didn't believe that guy's story for a second i thought that shooting was intentional he totally meant to shoot that guy guilty of assault the other half of the jury is certainly free to say well you know i didn't really think that he meant to shoot that guy but you know  supposed to have a gun in the first place and he sure wasn't being very careful and how he was handling it so yeah we think he's culpably negligent and so yes guilty of assault and so when the verdict current precisely and that that verdict is going to come back and there's going to be no distinguishing there between what the jury found there were jury was simply not required to unanimously agree on the theory of the  good morning there please the court will approve it on behalf of the united states your honour's you cannot put down something that you never picked up and in exactly the same way you cannot disregard information you were not aware of in the vase in case this summer the supreme court gave an exposition on what it means grammatically to use force in the supreme court said that that term does not command but the person applying the force have the purpose or certainty that it will cause harm as compared with the understanding that it is substantially likely to do so would it but no for me but no for means only that they did not decide in that case whether it would apply to just as a base liability i don't think it uses the term culpable negligence your honor i believe there and i and i would have to check to be sure more eyes so i don't want to overrepresent or i think it's not what they said is that the language about what it means to use force and was again applies to the guidelines and that is exactly what we're saying here so i think that is apples and apples how you apply that to the crime at hand is something that would be specific to this court and this case but the question my colleague says it doesn't apply anywhere beyond misdemeanor crime a domestic violence and we would have to strongly disagree because this court said in vinson to one it looked at least count leak how it was not a misdemeanor crime in a mess of violence case like this and was and this court said that they applied the same concept of use of force to those terms because they are quote largely identical and so i think if that applies in that case it should apply here and i would note then sin was a misdemeanor crime a domestic violence case but my colleague has no problem asking you to apply it here to the guidelines the incident was in both applied to that her use of force under mr minor crime invested violence we agree that term is the same in the guidelines and it should get the same interpretation in fact it's difficult to imagine when you read the supreme court language how it could mean something different their analysis when as far as they did not say a one sentence holding recklessness counts they also didn't say that the drafters intended to incorporate recklessness what they said is what does it mean grammatically to use harm once they establish that test they then applied it to model penal code recklessness and said yeah it involves a conscious disregard of a known risk so of course it meets that test but we don't take supreme court holdings as one sentence statements and disregard the rest they prescribe the test north carolina does not have recklessness as a man's right it doesn't have it it has never adopted the model penal code like most states have for these assaults and so if the question is have they adopted a model penal code definition that didn't exist until a hundred years after they define culpable negligence this frank or even said involving we wouldn't know how to answer that the good news is that's not the question the question was going to say that accidental cond actionable conduct i will i will be helpful i don't know if they use the word accidental but if i could just if i could relate here out of the facts of the case i think it would make that point exactly in the cases called state the monday and the cite to this case is two forty three north carolina one forty nine and i gave this case to my colleagues yesterday to make sure they were aware of it in this case it was about whether somebody who fell asleep while driving could be guilty of involuntary manslaughter for doing and what the court said is that merely falling asleep while driving is not itself culpable negligence is not categorical what they said is quote the focus point of the inquiry is whether the operator because of drowsiness previous tiring activities or other for monetary symptoms of sleep became aware of the likelihood of falling asleep but nonetheless continue to operate the vehicle under circumstances of unsing a thoughtless disregard of consequences or heedless indifference of the rights and safety of others i think if someone fell asleep without more your honor that would be the accidental conduct you're describing and they said you need more and what you need is awareness and awareness is what the supreme court said makes a use of force we must remember that there is no mandatory requirement in any of these provisions congress did not write that into any of these a sentencing commission there's not one word the question is is it a use of force and what courts have held is that accidentally if i trip and i fall on you while you're shaking my hand but that's not a use of force but the supreme court has now told us that even if it wasn't fully intentional or i didn't fully know the outcome if i was aware of the substantial likelihood and i did it anyway that that would count and what we're asking this court to do is apply the supreme court's t here i don't think that what this court would have to do in order in order to say that would be to say that the word use means something different in the guidelines then it means in these other provisions in as a matter of english grammar i don't see how that can be and  there is and i wouldn't i would notice that my colleague didn't even offer an explanation for why she said it hasn't been applied to the guy but i would love to hear in our because we haven't ever think of one for why the word use means something it doesn't apply beyond that i don't think that's the best way to approach it i think the way that we're discussing but this court even just this march in a case called bell mora applied this reasoning and cited to the health and human services case i just quoted when it refused to follow its prior test statute the u i causing injury that had it wasn't reckless it wasn't anything there was no mens rea there was common to actually has that crime that crime exists in north carolina it's felony serious injury by vehicle which is an accidental crime this crime as as my colleague knowledge requires intent and north carolina courts have been emphatic that assault is an intentional attempt by violence to do injury to the person of another it must be intentional for if it can be collected notwithstanding appearance to the contrary that there is not a present purpose or do injury there is no assault this is not a dui statute this is an assault north korea has said assaults are intentional that intent can be inferred from culpable negligence the jury can look at your probable negligence and come to a conclusion that you intended it but again those calls will notice the equivalent of i recognize this course decision in peterson that said it fell below it when i have read these cases and i'm not asked i don't think the court has to resolve that in this case it's no longer that's no longer the question peterson was about whether north carolina involuntary manslaughter was the end numerated offense of manslaughter the court looked and said generic manslaughter charge recklessness does involuntary manslaughter in north carolina require that you know this isn't about  of the likelihood that it would cause injury and you did it anyway then it is a use of force that is the in according to the supreme court that's the plain interpretation of that term i would also note that the supreme court both in castle has looked very closely at the impact of these decisions and i would just ask the court to consider the impact of all north carolina us are or at least practically on north carolina solves no longer qualifying as violent felonies no longer qualifying as crimes of violence involving the supreme court noted that if we throw out these these reckless solves the mystery or credit must advance provision will be inoperative in most states and they said we can't imagine that the drafters would have intended that result and i would submit to you and i'm only approaching north carolina here but if this court says that none of north carolina's assaults qualify i mean those are some of the most basic fundamental violent crimes that these provisions are intended to read we're talking about guidelines just that we're not talking about the things are well i think this would apply the same to the arc or criminalized it has the same force cause with the same language so i think i think in that sense i'm the one here saying that use of force means the same thing across this so i don't think i'd be able to come here and argue that it doesn't apply to the it would have to it's the same use of force provision johnson context it does it's actually it's different language it's different language the language of issuing sixteen b n nine twenty four see through b s different language and johnson struck it's not the same and because of that we think that there are differences i do want to return to this case though because i fear of what will happen in terms of the application of the career offender guidelines if you if use of force is right to exclude all of the state's assault crimes in the fact is the supreme court's thinking change operative in all the states but the states can always fix it i think what they were looking at is that when the drafters drafted these kind of statutes that they intend for them to apply to these kind of crimes or not that's not controlling the laws control the language is controlling but the supreme court  and said we just want to make sure that what we're doing conforms with a reasonable practical real world application of the statute and they said yes and to do the opposite wouldn't that would maintain that to exclude assault with a deadly weapon inflicting serious injury thank you thank your honor i don't want to use all of my time on this but i do think it's the most important point because at the end of the day these statutes they are and they are requiring an awareness of the risk of injury and that's precisely the thing that the supreme court has already said constitutes the use of force which is the only question at issue in this i would turn now very quickly to divisibility and i realize the court may have already already taken  view on this but i think it bears noting what north carolina's courts have said about this all and i read a quote earlier i won't read the same one again they have said that all assaults are intentional they require intent now this court has come in and has said that it can be satisfied with probable negligence i'm mindful of the jury instructions on assault and when i read them an assault is an intentional application of force wherever slight directly or indirectly to the body of another person without that person's  there's not one word in these instructions and same for following us assault inflicting serious bodily injury not one word about culpable negligence so if we took a jury right now and we read them this instruction that if you find from the evidence that on or about alleged state the defendant intentionally insulted the victim inflicting serious bodily injury we read them that instruction i don't think any jury out there would convict the defendant on the culpable negligence here they would have no idea that's even possible in other words you would have to instruct them more you would have to go on and that's what courts do they instruct them that you can infer intent from culpable negligence that we have a case and one in one that the defendant has not really responded to other than just to say it's wrong state the stevens where the indictment read as follows this was a on a child under twelve defendant named above unlawfully and willfully did assault d f a child under the age of twelve to wit hitting him in the face by swinging about his belt then there was no instruction on culpable negligence but then the jury came back and asked a question about intent and answering that question the judge responded with a normal instruction on intent and then added to it that intent could be inferred from culpable negligence the result in the north kind of court of appeals has reversed the reason the instruction permitted the jury to to convict defendant on a criminal negligence theory of assault a theory not alleged in the indictment what that says and this is the same kind of reasoning the original vinson one decision before it was reheard on panel rehearing applied looking at north carolina's cases look deliberating and what was absent from that was a single citation to a case i am unaware of or that is the law north carolina that a jury could split that way i think you would have unanimity problem particularly given that you had this fatal variance issue and what must be indicted but to be clear neither one of us has a case saying that either way and i would just like like to state that particular question isn't resolved what we do have is stevens and hines two cases that have said if you didn't charge a culpable negligence theory in the indictment you can't convict on one it's a fatal variance from the indictment by college responses three cases none of which address that kind of fail variance spellman agnew the two cases that were cited originally don't fall fatal variances at all it was just about whether there was sufficient evidence the defendant didn't argue that the indictment was insufficient so of course those cases didn't resolve that the third one oakman involved a fatal variance but not about culpability it was a fatal variance about whether the indictment could replace intentionally inflicting serious bodily injury with intentional assault and a separate issue in that opinion in a separate section they address the necessary mens rea for assault but it was not a fatal variance the only cases that addressed what you must charge to convict on a couple newton's theory that we have found and i believe that they have found as well or ste sondheim's and they go in the direction that we're saying to bring this all together because you would have that fatal variance you have to indict on a culpable negligence theory the absence of that indictment demonstrates that the assault was intentional and therefore and this this follows with the mathis decision which says if state law is not clear on what a jury must decide one of the things you can do is peek at the shepherd documents in order to determine if it's divisible and we would we would ask for the opportunity in these kinds of cases to take that peak haven't found a case that says the opposite in a criminal case but what i have found and we cited this nationwide mutual the gaskill a civil case where a defendant tried to get out from under an insurance provision that said the insurance company wouldn't cover intentional acts and he said a song footing serious bodily injury can be done with negligence and th did file one but nothing yet now that you're on to nothing i did nothing i mean to say suggest anything about what the court did or didn't look at but i'm unfamiliar with the ability to use the briefs in a case as a method of aryan what the court held the courts that the court's opinion honor just just very briefly i would just point out the government in terms of the visibility argument and the fact that the culpable negligence must be alleged in the indictment is still not addressing that and the pattern jury instructions is still not taking into the north carolina pattern jury instructions wendy idea of accident arises in a case that the jury will be instructed on accident and that injury by accident itself incorporates the culpable negligence standard and the jury will hear and instruction on culpable negligence  compel this court to set aside the settled precedent of this court stating that for a crime of violence which does require a much higher degree of force than a misdemeanor crime of domestic violence nothing scene requires this court to set aside that process and i do think that this panel is correct that if this court wants to go with the government's and alice in this case it would require this this court to take this that the supreme court very deliberately says nothing here changes the analysis and land and that we're leaving this issue for another day and so i don't i don't believe that there's anything was seen that would over that this court relied upon in peterson and and thence and they talked about the model penal code definition of recklessness and the supreme court goes into this explanation of what's the difference between accidental conduct and reckless conduct and they have this example of the man washing the dishes in the sink and he says that well you know if if the man's hand just slips in the soapy water and breaks a dish that's and a shard from that dish goes  and you know injures his wife that's an accident as opposed to the man taking up a plate and throwing up a wall perhaps not intending to have his wife but then the shar goes i think in north carolina the difference is you have something in between that in that the if that man washing that same dish had parkinson's disease or something that really made his hands very unstable and he was washing that dish and perhaps he'd broken a dish in the past i think north carolina would say well again that's an accident if he if if that dish falls into the sink but he was culpably negligent in that he knew he had parkinson's and he had broken a dish before and so i think north carolina would consider that be a cop be negligent but it still wouldn't rise to a recklessness standard that of throwing a dish against a wall that the supreme court was talking about