the violence involved in a resisting arrest my friends who sat in at the lunch counters in the sixty's very possibly career offender some of them have to win three  be lunch town or abortion nuclear or anything has been charged with a risk of resisting arrest and if pinion in pennsylvania that says that is resisting guy i think i believe the name of it is where the person was just remained stiff wasn't a protester raising your honor and the any officer at the end of the case says i was  them out of those and those handcuffs that they have put themselves into together there they're not quite the same as the line down protesters i know  military bases and it is very similar to the passive resistance even it even in a cough in my position is that person didn't intentionally create a substantial risk i think recklessness which of especially if we look at the statute reckless just would certainly suffice well recklessness the government has napkins i mean which and then applies then they were very careful  in his resisting arrest it says he fled actually he walked away that's it that's passive do you think it's appropriate to look at the actual conduct whether it's passive or aggressive or has the potential for serious physical harm or should we just look at the statute itself i think that would be a last resort your honor i think we have to look at the statute first and you have to look  in pennsylvania what the statute is if it's if it's any bigger wish which some of the statutes are especially the simple talking about resisting here are you talking about a resisting arrest it's certainly well the the thing is that there's if course benign resisting arrest chaining to a fence and there's a very aggressive physical resisting that's correct and if you look if you look at the conduct you still don't have to have you still won't have in almost in pennsylvania doesn't have any oars in it the simple assault us and you have to use a modified have a gore full analysis and that's where the restlessness issue comes in on once you're guilty to that you are admitting purposeful conduct creating a risk of serious harm i don't think you're admitting percival purposeful conduct wrong i think you're admitting that you did but it's not intentionally causing the violence you may be causing violence yourself well it's certainly there and it just charge itself you have to take into account the potential for very serious harm to a defendant or were accused himself or herself and to the police officer and to anyone harm that is that is being targeted here and which made unlawful i don't think the potential for for harm is comparable to that in origin or that in extortion else the driver doesn't get in their car and say we're going to sell for herself i'm going to run somebody over and you can you can you compare resisting arrest with simple assault in terms of the potential for serious harm very excuse me  is there any comparison i mean the resisting arrest with can that be compared with simple assault in terms of the potential for serious harm so we think you're you're challenging the assault the simple in the history of the pennsylvania statute in which they made clear in which pennsylvania legislature made clear that it was not to cover the sort of minimal common pleas court yeah because the guidelines or favorable to a defendant they get to use the sentence for especially a first time simple assault is six months to a year probation u is easier in a way and simple as sol because of the government's concession that recklessness doesn't constitute a crime of violence so by the course what you have to do then is send it back and you're telling us that it will be hard to do but that shouldn't hurt your clients it's the government's burden not that's correct so if the government can't prove those documents show and the men that has been lowered but the the amendment has to have the effect of lowering the ultimate sentance in order for you to proceed on the thirty five eighty two i don't think that occurs in this case so and my client send well it has to have that effect as a matter of jurisdiction in other words for you to get in the door if if we would have to do another analysis so i believe it would lower his shanta it issue i don't think it merits much further discussion mr bloom and i i think are both in agreement that if o'neal sloan can go ahead with his case then it probably should be remanded concern because i i'm very interested in how you get here in the courthouse door because under seven o six certainly you're intitled to a two point reduction i think that takes you from thirty four to thirty two i remember and so that the bottom of that range which is where his sentence here is a career fender is a difference of ninety eight months early but good demented seven to six as you you get a new you get a new shot at it you get a fresh sentencing hearing if the guidelines were changed but as i understand it your white was sentenced as a career offender so how how do you get through over that hurdle well i think there are two arguments for that your honor and first just to clear the deck on the core no that this court can look at the jurisdiction now one has to do with the scope of a thirty five eighty two proceeding and one has to do with the dorson bill twenty two forty one  jurisdiction now in terms of the scope it's certainly clear that this court takes the view that a thirty five eighty two c sentence reduction proceeding is very narrow it's or things like that court has made it very clear that thirty five b two proceeding is for defendants who applicable guidelines sensing ranges actually lowered now the key word in that analysis is applicable guideline range and how that applies in the very unique the use that together in the unique circumstances of this case now when mr o'neil sloan was originally sentenced as your honor pointed out his applicable guideline range was the career offender guidelines and this court has held in the teo case and in cases that followed that because amendment seven o six doesn't have the actual effect of  in a new environment where big a has instructed that o'neal sloan is not a career fender to begin with decided before we decide it might tell you oh yes it was so particular circumstance and this particular circumstance is that mr o'neill sloan is coming into court and with the effect i asked him is how does he come into court well you know under the thing if if the scope of the thirty five eighty two proceeding could be seen as to encompass a determination of eligibility for career offender status in the unusual circumstance where that eligibility were that eligibility has changed from career offender to not career offender then he could proceed in the thirty five eighty two i see one one can make that argument and i think as an academic matter that could hold persuasive force the problem is when teo right i mean hasn't that been asked and answered by what y has has not been answered well again because mchale didn't address the situation oh yes your honor as in the interest yes the idea being that in your honor in that opinion quoted from the supreme court's decision in davis we said that it would be a miscarriage of justice for someone to be punished for an for an act that is no longer criminal and your honor extended that to the situation where you have a defendant who had filed a twenty to fifty five but because of the p a a gatekeeping restrictions could not file a second  successive twenty two fifty five and therefore the court permitted him to proceed under twenty two forty one i suggest that this is the same case with the slight extension  bill the defendant was relying on the supreme court's decision in bailey which made the crime no longer a crime but looking at that a little bit more broadly what it did was it said that he should not be punished for something that no longer makes him punishable and that's exactly what's going on in this case mr o'neill sloan is no longer a career fender if he was being sentenced today he would not be sentenced as a career fender and because of that that comes up in any retroactivity else doesn't know well the laws change over time well it does but it's substantive change in the the for make it again yes but either by expanding the scope of thirty five eighty two proceeding to encompass a situation or through a twenty two forty if if your honor thinks that's not the direction that would be fruitful for us then we're we're happy to go with the twenty to forty one route and how do you get in the door with a twenty to forty one well again because he twenty two forty one is available for a defendant to collaterally attack a substance of legal change that makes a formally criminal act n see an injustice we can find some way to cure i think that's what twenty to forty one serves as your honor at least now that is come down to here where it's a very narrow circumstance where someone comes into court where a substantive change in law has made an act no longer punishable for which she was earlier forty is it can we go back to the merits a moment is it your view that all simple assaults or are not crimes of violence or is it your view that this simple assault involving your client is not a crime  i think we have to take the position that because the pennsylvania statute is written in the destructive because the sentence can be up to two years yes that it could be he could be found guilty as a result of either intentional acts of they create a substantial risk of bodily injury so we're not dealing with the minimal person that's simply hold stands there and doesn't allow police officers we're dealing with conduct that's much greater and i think that is why is  conviction to resisting arrest or always a player conviction to a serious crime or do we have to apply the modifying categorical approach and look underneath the incident of conviction well i  think you're honored to address that i think you can be both ways i think you can look to the statute itself and looking simply at the statute itself as a categorical pro choice i think you can get what i was asking which one should it be or you're suggesting either way i believe it's a government's position that it satisfies here under either a categorical approach or a modified categorical approach certainly with a modified categorical approach you're looking at the statute itself and and certainly i would concede to the court  who just walks away with resisting arrest well i don't i don't know what all the facts are certainly that's what the pre sentence report had there was some indication to people always from this rely on the pre sentence report there's some question whether we can look at it but there's nothing else i think that i think you can't really look to the facts i think you can look to the facts is based upon the supreme court's this isn't shepherd shepherd you can look to and i think the court was somewhat clear in living the terms yes it was to the charging document the out because i think it's there's two parts to that at sentencing i would agree it would be the government's burden to establish that by a preponderance of the evidence and however your show that he is a career offender because he resisted arrest approach and look to any documents that we can obtain i think we would have to concede and i think judge white as you point out if we can establish that the conduct was intentional or purposeful as big a says then i think the government would lose that that particular argument now over here i think with the first addressing the resisting arrest i think that you know it's certainly not an issue that's a felony i think that one of the things that's interesting is that the court in chambers talked about the highest of all five of the categories and they did some analysis specific analysis about people to kind of walk away and the result of violence and and there was percentages that were applied the very highest that's mentioned in there in that is individuals that risk is comparable to that in big a for resisting arrest as we know and we can't we can assume that your honor and the reason we can assume that is because the supreme court doesn't allow us to assume that i would love your honor if the supreme court would say the government you can look at the facts to determine what part of was because then we get into a situation like mr sloan where mr sloan intentionally punched the woman and threw it out but you can't look to that you need to look at this statute so unfortunately we have to push that aside i think that would only benefit the six months or so if you're convicted of simple assault new jersey that would not qualify or career offender status but it would in pennsylvania and in delaware it's a sentence not to exceed a year addressed by i think the private i would have to hope that the legislatures had considered that taking into consideration the punishment and perhaps making their punishments only up to six months or only up to a year that wouldn't  modify categorical pro choice someone who's convicted in pennsylvania of simple assault if they have another predicate offense certainly could be characterized as a career offender and so i think it only whittles away in such that dorsey really define a crime of violence and of course begin a and this in the definition for b itself list a series of crimes that constitute crimes of violence and that list includes burglary of a dwelling it's a residential or offenses that have the potential for serious for well i think i think your honor what the court did i think big a addresses that they talked about the similar in kind in comparable degree of risk of injury and those are really the two big main factors and i think for the pennsylvania simple stop it meets those elements is certainly other than and setting up setting apart the recklessness part of that the knowing inattentional certainly we have a purposeful conduct and then we also have violent would it would be the governor's position that that would qualify that the president has to other than the reckless portion of that was certainly how do you keep setting aside the reckless portion i don't understand how that helps you well i think the under chambers why i think i think your honor under under both your and shepherd the supreme court decisions they both indicated that you would take a modified categorical pro choice and look to these other documents to see if the conduct is knowingly art or intentionally or recklessly and i think that the recklessly the government concedes the recklessness reckless wouldn't qualify as a crime of violence i see so you're saying that the statute it depends on the circumstances you're saying that in some cases a simple assault will be a predicate offense and in other cases it won't and we look to the shepherd documents to determine what the mens rea was absolutely i think that's absolutely correct or that would be the government's position in this regard i know that somewhere i have seen and they maybe in my dorsey we wouldn't get into the simple arrest and therefore had to go into the i mean the simple assault never have to go into the resisting arrest was there was one obvious and i think the difference and one of the things i think needs to be noted about the resisting arrest is and one of the things that's important is that you have an officer who is present you know the fact that the person is probably detected leaving and then you have a beyond that you have immediate don't know is in pennsylvania i don't know whether or not that's true but i think the different stances it's you know and it and it well may be but i think looking at the statute itself we have conduct that is purposeful and it's purpose for we know that because the statute talks about the intent of preventing a public servant from affecting an arrest and then we have the next part which is they create a substantial risk of bodily injury and that part is going to be the distinction between someone who's an abortion activist or someone who's simply sitting and protesting and simply does doesn't stand up when the police officer comes and i think that's where the distinction is i think it's a very clear distinction that's in the statute you're creating a substantial risk of bodily injury and i think i agree with you it's over and why we're not in the business of finding facts should in the trial judge apply the record look at the shepherd documents and do that first and then we review it adds absolutely if there's a vehicle to get back in there's jurisdiction to do so and i think we see if we have an agreement i know it's hard to get calls of the green anything that's your job but isn't it true that if you lose the jurisdictional issue you know neil sloan the case goes back absolutely and i'm very hear let's hear why why the there was no jurisdiction for the district court in that case ok well i think the j the district court was completely proper and what they did they applied the law that they had to which is dorsey and that decision then came up and it came by way of a vehicle the thirty five eighth you see two and certainly the court and there's material and there's there's a lot of the of courts that have addressed that particular issue is whether or not it constitutes a full recency of the defendant or  then we have an obligation to say if we now know since the supreme court told us in the game that he may not be a career ender we have to find a vehicle in which we can do what that maybe a sprint is for which is to do just well i think that the distinction there is the fact that that was something that it was an act that was no longer criminal and there has to be a complete miscarriage of justice here we're dealing with not an act it's no longer criminal we're dealing with someone a sentencing issue and i think then you get into the retroactivity of that this is a chemically miscarriage of justice for somebody that had to spend years in jail extra years in something like mutual assault by scuffle were to people get in and try else actually involved in the united states versus greer case which your honour's may recall from several years ago well i  sloan to get in the court and that is the court the way for the court to do that is to take a broader view of the applicable guideline range language thirty five eighty two lets the district court judge reduce the sentence where after an amendment like minutes of no six the defendant is applicable guideline range is lowered in the ordinary career fender case such case when the defendant was originally since he was a career friend or he fuzzes thirty five eighty two he's still a career offender he is therefore ineligible this is a different situation range is not the clear fender guidelines well it's a crystal may be and that should give the district court ought to have the authority if it if it really is maybe i don't have the authority to investigate that further is this thirty five b to let us do that this thirty five b tuesday that it goes back if the applicable guidelines range might be different well it says let me read to you from  describing that what the directive of thirty five eighty two c is and it says the language of thirty five eighty two c two could not be clear the statute predicates authority to reduce defendant sentence on consistence with the policy statement and the policy statement provides that a reduction is not consistent if the amendment does not have the effect of lowering the defend its outlook applicable guideline range so obviously that put in the negative so if the amendment does have the effect of lowering the defendant range has now changed as a result of an intervening supreme court decision on substantive law that district court ought to have the authority to deal with that and that's the hook for thirty five eighty two