intentional murder of a human being is a crime of violence within the meaning of section four b one point two the government believes that the answer to that question is obvious and this court has well in the past in particular in the case of united states ver reckless or negligent condo your honor i would concede that this court has previously indicated that the government has taken the position in other circuits and i believe before the supreme court that at least reckless conduct would be sufficient teague was convicted of being a felon in possession and sentence under section two k two point one of the guidelines subsection a for a of that guideline provides for a six level increase of the defendant had been has been previously convicted of a crime of violence i believe pages seventeen and twenty eight i believe in which the d l and the courts have dealt with that notion of transferred intent and how that's what the provocation mitigator is getting at basically if  a if the defendant shoots a day who is provoking him and misses and hits b then that intent to kill a is transferred to be that's really all that language means and one needs to look no further than the illinois elements of the offense and eleanor law cannot be more clear that the elements of the second degree murder are just those of first degree murder and that the mitigators including the provocation mitigator that was present in this case is nothing more than a sentencing  issue that is entirely in defendant's burden to prove and the government has no burden inward or excuse me the state has no burden in regard to that provision at all so what's the way it works as i understand from the cases th state has required to prove the elements of first degree murder that is the finot acted intentionally to kill or knowing knowingly or knowing that his actions created a substantial probability that the that the victim would be killed and once the government or excuse me the state of stablish is those that those propositions then it shifted the defendant on the second degree murder statute section nine dash two to establish five preponderance of the evidence mathis very very clearly teaches us that  what's at issue here or in this analysis that's a federal sense in courts make is the are the elements those are things that the prosecution must prove in order to prove the defendant guilty of the offen one never reaches the provocation mitigator so what it means actually is irrelevant in this analysis but even if you did even if it was somehow relevant to the analysis of what is a crime of violence again as as i mentioned just a few moments ago  the district court and the defendant simply miscomprehend how that provocation mitigate or works or what that language excuse me in the negligent accidental killing lang's refers to under all circumstances and second degree murder the defendant must intend to kill someone it's just a matter of who the identity of the person that was killed whether in regard to the provocation again or whether it was the actual provoker or whether it was someone that he shot of provoker and missed and hit someone else so the government believes that under the elements clause that it's clear as this court has previously found that second degree murder is a crime of violence we think it's equally clear that under our brief we cite the model phenyl code definition of murder and believe that the elements of second degree murder means that if one were to somehow for the sake of argument consider the the statutory mitigators in that analysis than it would certainly align with voluntary manslaughter and in fact when you look at the cases cited by the government in its brief you'll see that what ellen we actually did when they revamped their murder statutes was to get rid of the defense of standalone fanc voluntary manslaughter and roll it into second degree murder so that's further evidence that it would certainly would certainly line up with the generic fences of either murder or voluntary manslaughter defined in the guidelines in this case the the error in sentencing that the district court of the era calculation guidelines certainly did affect the guideline calculation again it was a six level increase that the district court failed to apply so the resulting range should have been forty one to fifty one months instead the district court applied a sense a guideline range of twenty one to twenty seven months and then since the district court within that improperly calculated guidelines and i believe under shots may please court counsel for the government todd childes assistant federal public defender representing the defendant appellee the district court in this case correctly determined that the appellate is convict illinois a conviction for second degree is not a crime of violence under the guidelines were respectfully ask that this court would affirm the district court's decision unless there are any questions i intend to stand on the brief it could you  example or cite in illinois case involving a second degree murder conviction that rested on a negligent or accidental killing not because the defendant killed the wrong victim but because the act of killing itself with negligent or accidental no i cannot your honor that would be involuntary manslaughter in illinois wouldn't it i believe you are correct your  honor and and l know any recent case that first and second degree murders are separate offenses or not overlap right that's what people versus for you familiar with that case your honor if it's referenced in the briefs i've  read the briefs in preparation of today and so i do believe it wasn't a bruise it wasn't in the briefs my understanding is consistent with what the court is saying though that they are separate offens are just that one is my understanding from the cases that i looked at that while they are separate offenses the illinois supreme court of people versus jeffrey's indicated that that defense a set second degree murder is better described as a the mitigated offense of first degree murder not a lesser included offense and i believe that be consistent with the case of the court or the statute itself says for second degree murder you have to prove first degree murder then you and you can almost stop at that point that's why the government believes it was so obvious that