then a very tough sitting we have nine arguments scheduled for today sitting which is almost unheard of so for making him earn his is the travel pennsylvania misdemeanor fleeing or alluding conviction categorically was a crime of violence second the judge erred in finding that mr jones committed the salt upon the officer ergo when he ran away from officer undergo tackled mr jones from behind and finally the judge committed a procedural error by number one presuming that the guideline range was the presumptively reasonable sentence and number two by failing  the is is this pennsylvania that you did is a bill an overbroad in the language of the i believe it is the visible in the sense that you can divide the misdemeanor violation from the felony violation because to be guilty of the felony violation the state has to prove an additional element beyond a reasonable doubt but he was convicted of the mr painter that is correct in order to be divisible it would have to be divisibility within that simply it's overall it's divisible between the misdemeanor in the felony versions i do not believe that the misdemeanor version itself is divisible within itself so there should be no modified categorical approach here i would agree  once you understand that he actually played guilty to the misdemeanor offense and once it's understood that that is the one he pled guilty to than yet i don't think that there's any modified category that the misdemeanor offense any driver of a motor clear from the standpoint of supreme court that as justice kennedy said confrontation with police is the expected result of vehicle flight it places property in persons at serious risk of injury risk of violence i specifically justice kennedy in his opinion for the court specifically withheld deciding whether or not if there is a true lesser included offense if the true lesser included offense could not be a crime of violence now the government incites argued to the supreme court does it rely on on that reasoning really i mean he he rebuts a challenge that sykes makes but it's not really holding of the case  they specifically say that the government would have them go further in find that when doing the categorical approach it makes no difference if there is a lesser included offense and then he says we don't have to take that step here and so they do not so it's the rate we're we're in the space that was reserved right correct so the question is even though we're in that even though they didn't go that far because their case didn't call for it does the language of the majority opinion not drive when the proportion is presented as it squarely is here or does the language of the majority opinion not drive to the the same conclusion in this instance that it doesn't matter you know you can call it a misdemeanor you can call it a felony you can call it bob it doesn't matter what you call it when you're in a car and you're trying to get away from the police you put yourself the police and other people at risk that's the language of psychs that's the question that it is not dr you're on in the reason is read that doesn't fit with sykes because in pennsylvania if the defendant engages in conduct the language of the statute is in danger is a law enforcement officer or member of the general public do the driver  a high speeches which the superior pennsylvania spirit court that's what makes it a felony riot that we don't have that you don't but here's why sites doesn't control as this court said in united states versus lewis which it's a unpublished opinion but it's an opinion we cite where they were trying to decide whether an ohio burglary was a crime of violence versus an aggravated for the government made the same argument said that we argued that burglary wasn't a crime of violence because under the purview of your ohio statute nexxus if somebody was likely to be present it was aggravated murder burglary and mr lewis was only convicted of burglary the government argued doesn't make any difference court shouldn't don't worry yourself that there's aggravated burglary and just regular burglary and this court said that no that approach was wrong that that that statutes don't exist in a vacuum divorced from the overarching legislative scheme that they're a part of truly not so we didn't have a supreme court opinion that says burglary is inherently risky and and violent well actually burglars and in a numerated offense and this court said that the way ohio had defined burglary the the risk was shorter and you and i understand that your argument is if i've got it right look the pennsylvania statute the the legislature in pennsylvania chose to make the dividing line exactly along the risk line that the the government and the district court want to work that they've got a section they've got a felony piece that deals with high risk and then they've got the other and and he pled for the lesser and that should control but here's the the question that i have why i think i'm all over that argument first to look at the language of that actual statute which for the felony a high speed chase will get shipped felony doesn't that leave a whole lot of risky indeed substantially risky behavior underneath the felony at the statute you look at the state courts interpretation of the statute in pennsylvania in re r c why the presidents appear your court said high speed chase is not a we're not interpreting that literally we're saying any conduct their presents a risk beyond the run of the mill failure to stop violates the felony version in that case the driver never went faster than thirty five m well they still the superior court said that is if that satisfies the element of the felony because we don't care we're not looking at high speed as a literal term we're looking at if it presents any risk beyond the routine failure to stop so it will be different so your suggestion is that because there's a superior court case interpretating this statutory section as reaching chases that might not be viewed in ordinary parlance as high speed that that leaves that leaves the misdemeanor covering only no risk circumstances or risks that are comparatively relatively less than the enumerated fence offenses i mean that the case actually says require a different level of danger from the run of the mill dangers posed i mean it right it says ok there a dangers they run of the mill dangers but there are dangers and then there's the different level of danger shutter it because it's that but there are run of the mill dangers every offense has dangers the question in doing the otherwise clause is is there is it a danger that is categorically a relative relatively the same as the arson burglary or use of explosives or a store so this is the argument that was rejected by the majority it's like so i mean it's not a good justice kagan makes a lot of very persuasive case and cites in fact the kind of statute that you're telling us this statute is imagine it's nothing more than a failure to stop nothing and you know there's no danger all involved in it she says we should we shouldn't be talking so broadly is the import of her message and the only reason that the those folks in the majority are doing what they're doing is because in the end a half a call of all class the felony but in the end that's the position that loses it isn't that when is the position that when you're talking about fleeing in a vehicle that involves a risk that we think the majority in the supreme work fits within the aca definition of violence  things first with regard when you say it is because there was a pennsylvania interpretation of the statute you have to rely on the supreme court as well to do that they did that in the james case where berg florida's aggravated burglary deciding well how much was this what substantial step was enough and deciding what was cartilage under florida law the second the justice kagan's dissent made clear what the majority opinion made clear say they were not deciding the issue that's in front of statute that's in front of in the statute that was in front of the supreme court from indiana treated all lights from law enforcement in a vehicle as a class d felony yes but not all like they had a great  way this one actually it was when a vehicle when it would involve fleeing in a vehicle it was always a felony and that's why this that's why the supreme court shot down argument always a felony but there were great patience that was the whole point the argument they were there's there's this kind of level of risk there's this kind of level of risk there's this kind of level of risk hammack four levels of risk that ran through right right but the key one was one subsection said that if you commit any of the violations in the one subsection in a manner that created a risk they were a class d felony but there was another subsection that said hey if you violate eighty three which was fleeing and you do it in a vehicle no matter what it's always a class d felony is what the supreme court said is indiana has made the determination the with the weight given the elements of their statute that indiana has made the determination that any light in a vehicle creates these risks of injury aren't you fighting against all circuits that have addressed this issue  i think the six the fourth eleventh have all said that even if there's an aggravated provision that involves you know in danger especially in danger matt yes still the the lower level it didn't include creating a danger to the police officers and the fourth in the eleventh circuit cases both dealt with the same florida statute that bumped it up the penalty if there was a high speed chase for the law actually required there be a real you use a common law definition of assault which is the defendant either the crime is committed by either a willful attempts to inflict injury upon the person of another or by a threat to inflict injury on the person of another which when coupled with an apparent present ability causes a reasonable apprehension of a hard here and that's the government claims it was the latter type of assault but the problem with that is as we point out in the brief it has to be an intentional crime and there's no evidence that mr jones was intending to try and put off for undergo it in fear of being harmed with the gun and second officer under those when you say there's no evidence of that the judge made a fact finding after taking evidence that there was a deliberate attempt to draw the gun not consistent with all your weight but to draw the gun is it not within the district words fair and bit of certainly i don't believe the judge ever made a finding that i find the gun was drawn to be used he simply said there are case laws that says in fact at the end of the first day where we took the testimony he pressed the prosecutors like where's the  don't see the assault when we came back on the second day when he announced the sentence he never said i find that there was an assault here he says there's case law that says if you have a gun while you're running from the police that can be enough unfortunately he was relying on a case that was a but he didn't know what is going for didn't see the gun and in fact when a step further and said if i had seen the gun or knew he had a gun i would not have tackled him shot it out but he has a gun somebody shot it out after being shot if you know who testified in the government had the opportunity to lay this out to say hey did you see the gun were you afraid that you were going to get harm after undergoes explanation for why he thought there was an aggravated assault was i was in the line of my job and i got hurt and i think that's an aggravated assault it never said that i was in fear that i was going to get shot i was in fear that he was going to use the gun against me and there just isn't any assault by threatening if the person who is supposedly threatened doesn't suffer the mental you know anguish of being put in fear of serious finally what do we do with this record that is finding that as you and you described it to that these things were happening in the same virtually jones his his partner yells gun so you know his test may very well be i would i'm i would have gone for the flying tackle had i seen it god but well i do it it i hear gun and i consider when you're imposing the sentence on mr jones that as he was running away from the police a gun came out this is a very specific massive enhancement under the guidelines that has a very specific requirements to it and so simply saying that you can't use it to him with the six level enhanced but for aggravated assault doesn't mean that the fact that he ran and the fact that he had the gun doesn't get factored into the sentence so we're not you know it's not a one or the other but your position is had had officer go been able to say definitively i saw he was running naturally he was reaching for something then this is if you had said and i figured it was a seen it but he had heard his companion say a gun before he launched tackle that would be enough right because it's the perception that's your point it could have been but yes but again because it is a subjective the threatener not having succeeded in his plan cannot be held guilty of assault or no it's just not an assault and it doesn't mean that what mr jones did is ok it just means it's not an assault so you don't get the six of them all right we'll hear from her thank you or not the pennsylvania for their flight statute is a crime of violence under the sentencing guidelines a i believe six controls the disposition of this matter the other courts to have addressed this particular case the fourth six and eleven circuits have look at statutes that are virtually identical to the pennsylvania statute there's only one way by which the pennsylvania statute can be violated and then you have different gradations of penalties basically felony and that's something that didn't happen in indiana and that looks like in fact it was the dispositive point insights that's what the dissent points out and it seems to be accurate there say because they were all equally weighted class the felonies in indiana we the supreme court was going to treat him all like but here pennsylvania's made a different choice is that not a material difference you know it's a distinction i think without a difference your honor because there's only one way by which the indianness actually can be violated as well as the pennsylvania is that he does violate it whether it's the particular grade assigned with the legislature and whether certain price of flight are treated more severely the bottom line is as a categorical matter all forms of intentional behavior flight are inherently risky that's what the supreme all forms all forms of intentional vehicular fight are categorically crimes of violence because of the risk imposed well when you say that that's that is what they held europe opposing counsel's made much of the fact and it is a fact that the supreme court said we're not talkin about lesser kinds of good we don't have to talk about that and that's off the table in the dissent is it pains to point out that that's not something that's being talked about so when you say that's what sikes holds it looks like sykes exactly doesn't hold that because they leave the question open a serious potential risk of physical injury intentional failure to stop willful failure to stop yes it is your honor so but that's not what sites thanks talks about flight before you can flee or allude your honor but maybe it is only a failures i don't think so but if you look at the pennsylvania statute they have affirmed that the fences that deal with the willfulness aspect of the crime but i think we might be getting too far afield at that point es that all forms of vehicular flight intentional behavior flight pose a risk of danger and that therefore because of that risk they are crimes of violence and then they really don't have to address the different gradations of the penalties involved again the florida statute in tennessee statute that have been analyzed post cites have relied upon the basic the essence of sites which is the hc ular flight intentional because the flight is a crime of violence and whether or not there are positive statute that said failure to stop a simple failure to stop is a missed anything beyond  affairs office that it is somebody in authority told you to stop right now you can assume that so you're yes there is there is if there's any you know set of statutory language that would take this out of crime of violence for the government because as long as a person is behind the wheel of a car your position is you've got six thousand pounds of metal around you your violence at least there's a potential for a risk of violence or risk of danger which is what the supreme court did look at and cites so in the short answer your question is  yes it would be a crime of violence your so when justice kagan says the government the majority doesn't address a simple phase stop and i don't know and i don't understand them being even implying that that would be a risk of violence benchmark yes that would constitute a crime of violence maybe we need a statute is divisible it says who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing vehicle yes or may we have two out of three here that are categorical eyes of violence where if you just fail or refuse to bring your vehicle to stop i mean you can have the look on the rearview mirror not see the police and that they get upset and charge you with with that but certainly by its nature isn't violent that would be applied to anything other than a categor you can fail to bring your vehicle to stop or you can flee or you can attempt to elude a police officer attempts to elude those are those are different those not phrased in the disjunctive so that there's different ways that you can do this well i think what you have to look at is that there has to be a failure to bring the vehicle to a stop because when it says when given a visual an audible be a failure to stop the vehicle i mean that's a necessary factual predicate for all of this and then you just have different types of conduct not conduct but you just have a  mean well doesn't say chase well that's right thanks touched on flight it also touched on attempts to elude capture doesn't really talk about the failure to stop the district court here talk looked at the conduct really did a modified approach here wasn't that as an error as an alternate or in your honor i believe the defense argued that the modified categorical poached should have been utilized because the statute i believe the phrase was determination in the jackson case as well as the doyle case which specifically addresses the issue of gradation in lesser included offenses a holding can be determined that yes categorically this is a crime of violence but then as an alternate and i believe judge will mclaughlin's words were you could also find it to be a crime of violence under the modify categorical approach so the judge actually aardman we would we would have to reverse would  i hope you wouldn't but i think that's the that is what the law is but it would be harmless if we agree it would be harmless if you agreed and it wouldn't be error if we find that i stop at all might end up with some violence and the supreme court said work those things are not the same that favorite word is not the same as alluding arrestor  is that does that have anything that is a cautionary tale for courts of appeals who read too broadly what might be crime of violence i think i again i don't think there's any is that i don't think you're getting around sykes which is different than chambers because you have to look at the you know the reference you numerated crimes of burglary in arson to determine how dangerous flight is i don't believe that that analysis we are by the terms of the pennsylvania is that to dealing with a statute that does not have us looking strictly to follow yes it's got its categorized that it's chosen to get a rise and you can say given the length of time you could serve under the guidelines it qualifies as a quote felony and not get into that that p c r go with you but since sykes went out of its way to say we're not talking about that  i ask you again is chambers caution against reading violent felony too broadly because the mere risk that there might be a complication with police was not enough in chambers and the mere possibility that your failure to stop might cause harm isn't enough here if we did a risk analysis of a failure for someone to report as opposed to someone who's operating six thousand pounds of still down a highway with the police following them clearly there's a greater degree of danger involved with that and the police are necessarily always present when there's a failure to stop case and when we look at the ordinary course which is what we're supposed to do invariably awat of these incidents result in high speed chases are in chases where there is damage done to property so if if i as an ordinary citizen see the lights go on behind me even for bi and i don't over immediately maybe i see something on the side of the road that makes me uncomfortable about pulling over right there i travel another half mile before i pull over my now a violen felon for purposes of the guidelines it depends how well for your being your honor really again and how would and how would anybody ever know that well because i was on my conviction if we it wasn't really very will well if you look at the pennsylvania just as if there was an affirmative defense an affirmative defense that says you know if there are if if it can be shown by proponents evidence of the failure to stop immediately for a police officer arms based upon a good faith concern personal drawing a weapon during a foot chase with two police officers his conduct that clearly as a defendant you have reason to know that that's going to cost you're in the police officers i mean it's  was going in common law common law assault recognizes two types there's attempted battery where you don't even as the victim have to know that someone is trying to bow to rise you secondly there is conduct i guess menacing  producing a gun drawing a gun during a foot chase if he's not in this case he had an apple opportunity during the early parts of the foot chase to throw the weapon away ok he does not draw the gun  officer veiny starts to approach him within very close in from behind and then you have the simultaneous warning given in then you have the tackle by and go so you know maybe i'm verco did not specifically see a gun but officer beenie did and mr jones did not produce that weapon draw that weapon until by any approaches so that's a sort of conduct and i don't think that there's an procedural error in this case either vege mclachlan specifically asked mr patten several times what is the basis for the variance the judge retired the chambers for approximately half an hour's came out and said i've given this considerable thought vehicle to a stop in the face of an audible e or visually identifiable police officer signal to do so so just failure to stop in again on page thirty four of our brief is the factual basis of mr jones's guilty plea to the at west thirty eight and liberty streets in the city of erie that constitutes the crime of fleener attempting to elude police officer and as amended is a misdemeanor of the second degree so it was clearly what he pled to was failing to stop that is what he admitted to that the elements that he admitted you know i do think chambers is a cautionary tale of trying going too far with the hypotheticals of what all bad things could happen and in fact in this  split which is in chambers it's not always the case of you or it's going to which you conflict with the police but a failure to stop by definition will have you in conflict with the police because by definition they're they're giving you a command and you're feeling a little bit that it's a conflict that's inherent i would say to united states versus hopkins we court ruling that pennsylvania is a state misdemeanor a state conviction was not a crime of violence following chambers and effect escape and they said this defendant was found guilty of the misdemeanor escape which meant that he was only being apprehended but for a misdemeanor and it means he did not use threat or employ force threat or deadly weapon and so they found that that the misdemeanor violation of the state was conduct materially less violent and aggressive than enumerated offenses it really relevant though what we're talking about here involves a vehicle and that the existence of the r is a crime of violence what you'll be saying is that even though the state legislature and the state courts have said what separates a misdemeanor fleeing a living from a felony is if you if the defendant engages in conduct that puts the public or the police anybody in danger beyond a run of the mill failing to stop and you'd be saying that even though that's what the sting which is those to the misdemeanor still presents a serious potential risk of physical injury to another and i just think that's pretty in congress that you would find that that the misdemeanor version would present that risk when this pennsylvania course that in the ordinary case that's the phone version on the aggravated assault i would like to point out that the government has never argued that officer benny was the victim of assault he did not argue that in the district court they didn't argue that in their briefs to this court and so i would say they have