yes or good morning your honour's tom hawker on behalf of mr weeks and his family may to please the court counsel mr weeks is asking the court to rule that the historical record within the meaning of u s b beeman includes the record through direct appeal that is to include also this court's opinion and reasons for why he was found to be finally and legally after direct appeal unarmed career criminal this court on direct appeal found that mr weeks was unarmed career criminal it chose the third predicate that's required for that to happen as a resisting arrest offense he had in massachusetts and specifically found that the risk embodied in resisting arrest was the same as the residual clause which has since been declared unconstitutional in johnson to so mr weeks has established from the actual record the full historical record of what exactly happened here which was his sentence actually and was adversely within the language of beeman affected by the residual clause because without the residual clause the court couldn't up held it based on the resisting arrest because there were no shephard documents introduced to place it in the elements so with respect to resisting arrest mr weeks worked with what he had which was what actually happened and set up met my burden you've found me an armed criminal because of the residual clause however if more is required and if now the focus is the assault and battery conviction that he had in his history he also meets his burden under beeman as well as a substitute conviction to plug in because resisting is and was based on history about how he meets that burden because assault and battery in massachusetts could only have served as a predicate if it was thrown into the residual clause bucket and if you look at the entire historical record here which in this case does include through direct appeal it's evident that that's the case first yes or i'm not sure about that ok i don't know the answer twenty certainty but i tried to do a lot of there he followed first circuit law it's unclear what he was referring to specifically it was unclear what he was referring to but so here's here's the case that i found the other support your view i think but there's one that sort of cuts against it if i've looked at it at first circuit law correctly i'm not sure the party cited it ok it's called united states versus bragg nard nine fifty one fed second for fifty seven and the discussion is at page four sixty is from the first circuit in one nine hundred ninety one now i haven't gone back to see whether the massachusetts assault and battery statute was different back then or not so again i'm not sure about this but i want to ask your colleague about it too and see what you think about it that case upholds the use of an assault and battery conviction in massachusetts as a predicate offen aka and using what are now known at sheppard type documents to p s i accent or a appears to do it under the elements clause so i throw that out there for whatever it's worth i don't know whether it has relevance or not but the other cases i think support your view about where first circuit law was going there's even there's actually a nine hundred ninety eight first circuit case which says that assault and battery on a correctional officer cannot qualify as a violent felony at all under the aka which is crazy if the other case held what i think it held that second case is united states versus for t s one forty one f third one at page five and that's from the first circuit in one thousand nine hundred eight so you've got a nine hundred ninety one case which seems to suggest maybe looking at a lot of documents which we now call shepherd documents it my qualify into the elements clause the language of the opinions a little bit ambiguous and vague and of course it predates the succession of supreme court cases refining the aka standard so it's got that problem too but then you've got this one nine hundred ninety eight case that as an aside just says this is all conviction could not have been counted under the aco predicate so we're going to look for something else so i can come sort of sort of a man's state of the law at the time of the sentencing judge thrash was under the first circuit did and b the charging language that was at issue here was sufficient to meet the elements clause i think that's clear from the record what happened after the sentencing hearing was that u s b holloway was consulted us we holloway said well and it was based on curtis johnson that came through this court and said you've got to look to state law to define what the elements are and whether it a violent felony definition holloway was the first circuit case that overruled the very decisions relied on by the district court and what holloway said that's the case we rely on it says judge that did assault and beat is statutorily prescribe charging language it's in a statute massachusetts general statutes a did assault and beat b it covers multiple offenses an offensive touching a reckless bet all of the different versions of assault and battery massachusetts some of which the violent felony definition holloway decided while mr weeks was pending says you can't just use did assault and b because on its face if you look to the state law it covers things that are violent felonies you have to go to shepherd documents and in this case we don't have those as a result the elements clause based on the ownership but document you head was the  charging document which calaway eliminated as indicating that was an elements close case that's correct judge that's absolutely correct so by the time we reached direct appeal your honors the first circuit has said the case law relied upon by the district court without additional analysis if you just had to rely on first circuit law had been reversed and you couldn't count it under the elements caused the seventh circuit had also helps their two circuits by the time the case reaches this court on direct appeal the seventh circuit ten years previously said did assault and beat can't can't because it's not describing the offense it's boilerplate from massachusetts statute  forward we've had this for quite some time in our office but the first in the seven said did assault and beat not enough you can't say it's a violent felony johnson johnson was the basis for the change in law in the first circuit curtis johnson said you have to look to state law to see what the offense is what is this charging language mean all that was presented to this court on direct appeal in direct appeal the court said we don't have to decide that issue we're going to choose resisting in the residual clause but my point is this to meet my burden under beeman to show he was sentenced under the residual clause first we've shown that the actual basis from the full historical record was residual clause based on resisting and the second way that we can meet that burden we've also in the words of beeman pointing to precedent from the full historical record that holds or makes obvious that it could only have been counted as a predicate under the residual clause and that's why we need it with respect to assault and battery because the law at the time this sentence was finalized on direct appeal could only have allowed the assault and battery under massachusetts holloway curtis johnston and the jones case from the seventh circuit if you throw it in the residual clause bucket so either way you slice it based upon the full historical record mr weeks has met his burden to show that hi sentencing record and that's the argument that's been made beeman didn't purport to control every case and every posture and every factual circumstance that was before it i think it's very important for the court to understand and probably does that beaman did not involve a direct appeal of the sentence so in that case by definition the historical record ended at sentencing in two thousand and nine all the court had to look to was what was said at sentencing in the transcript and so when judge martin road footnote for judge carnes wrote footnote four she said you can look to the sentencing transcript at the p s r what did the judge say but she also said each case must be decided on its own facts and that the non exclusive ways to prove you were sentenced under the residual clause when you only have the sentencing record are just a few examples a movement there are other circumstances on which a  movement can rely that certainly would include the law in place on direct appeal which the supreme court says that the court of appeals apply the law in effect at the time of appeal or also not him then and handcuffed to the law frozen at sentencing then the same thing is true with respect to the pickett case which comes right after the mine and it did not have an appeal at all so again the senate was the last stage that could have had any effect on the subject that's correct if i could my time is up can i make one comment based on that is ok i have looked at the twenty four cases that appear on west l meant to see if they involve these direct appeal record and i can't find any of them that involve this situation where mr weeks is faced with so this is kind of an unusual case and i'm not sure that the court will run across it again a finding that the direct appeal is in the historical record i think is just an accurate and it's not going to come along that often thank as a matter of historical fact that his sentence was imposed soley on the residual costs now beeman lays out the roadmap for how this case should be evaluated and what the defendant has asked the court to do today is change that roadmap and that's not something that this panel between the cases there's two reasons why that difference doesn't matter first of all be even contemplate the possibility it in changes in the law after the sentencing if you look at footnote five what the decision says is the only point that matters is what happened at the sentencing hearing the case law and had they done did it but that's the only thing was relevant in that case i don't think it's dicta your honor because every panel that's applied beeman since has quoted that footnote and quoted that holding and as judge martin said in her dissent to the on bank review what demon means is that a petitioner has to prove that there was binding precedent at the time of sentencing so so one issue that this defendant has is the timing it's the temporal issue this holloway case comes too late for him well if i if you if you want to talk about binding precedent what about the first circuit authority that says that an assault and battery conviction even on a correctional officer can't qualify as an ac predicate respect for your are the parties are in agreement that at the time of sentencing us the riviera the first circuit case that said that assault and beat charging language is sufficient was good law and a controlled the dish were not responded to except the parties stipulation or concession and my my question to you is if the judge if the district judge said i'm relying on first circuit law what are we to make of the fact that some first circuit cases indicated that an  battery conviction didn't qualify at all under aka your honor if the district court sentenced under the elements clause but it did so in correctly doesn't as cam's claim is not a johnson claim at all that i understand you're exactly right about that but that's not my question to you i'm sorry the district judge said i'm relying on the first circuit cases or first circuit law right didn't explain what that meant and so i'm asking you in the abstract if there are first circuit cases right the one that i'm thinking of is four tos from one nine hundred ninety eight which says that an assault and battery conviction on a correctional officer doesn't count under why isn't part of that of why isn't that part of the mosaic of first circuit law against against which we can read the district court's comments are that's not the conviction that mr weeks was convicted of that's going to be a different statute that the first circuits interpreted there how can assault and battery in a correctional officer be less problematic than a regular assault and battery we're on our time question a problematic it's a question of what are the elements of the offense and i don't think going to a don't you think that the only other element of assault and battery in a correctional officer is that you assaulted and battered a correctional officer as opposed to a regular person so your honor the u s b rivera case that the district court was that we presented argument on was from two thousand and five and it cites four other cases going back the mango in one thousand nine hundred eight as being the initial case that said the assault and be a language is enough now whether that case directly overturned the case that you've cited i don't know the answer to that but what we know is that there was a series of cases that both parties breathed and we agreed on what it meant because what the defendant argued at sentencing was your honor first circuit case law is not binding on you that's just persuasive authority please ignore it and come out our way anyway and that's the second problem with defendants argument even if we expand the historical record to include what happened on direct appeal holloway isn't enough for him to meet his burden because all holloway says is in the first circuit that language is likely than not and it seems to me that holloway certainly makes it more likely than not that any judge looking at that situation after holloway would  have it is it least more likely than not that they would have relied on the residual close and not the elements clause respect for your honor what demon says is that the defendant has to prove more likely than not a historical fact not a likely hypothetical but morning by the kind of fame and not only say that it says that the president at the time which if we can consider the direct appeal the president at the time included hollaway makes it obvious that it the enhancement relied on the residual close so it's not just a historical fact it is precedent precedent that makes it obvious at the time of sentencing estrada our point is that that first circuit case law can't do that it has to be eleventh circuit case law that tells you and this is what judge martin understood in her dissent to be that's why she was so upset because you have to let let's get back to i think the crucial issue in this case is whether or not we can consider the direct appeal because if we can  we can you can just assume for the sake of this question you go lose if we can consider the direct appeal it seems to me  second it would make no sense to limit it to the senate saying because everybody knows under spring coat law the senate's can change on appeal  and for the most it seems to me that be mine also supports that position because what it says in its real logic is that we have to determine whether the basis of the an answer was the residual clause and that is obvious in this case that the basis for the enhancement had to be as a matter thinking so first of all your honor i do think he meant controls i think footnote five makes a clear mr beeman had a direct appeal his direct appeal wasn't decided who july two thousand and ten now he didn't raise sentencing issues but if there had been an intervening change in the case law during that time phrased it asked for supplemental briefing found a twenty ha a letter but what footnote five says is only two thousand and nine matters and the even panel had the record they knew when his direct appeal was if they wanted to extend that time period those judges are fully capable of doing so that's not an unusual timeframe they made a very specific decision about what timeframe as a let me let me handle it let me flip the question a little bit and see if i can force you into judge anderson's corner ok thank you it's not going to be helpful and stamp let's say that in mr weeks's direct appeal the panel did something slightly different let's say the government defended the aka sentence based on the assault and battery convictions based both on the elements clause and the residual clause and that say the panel again this is a hypothetical the panel says we hold as a matter of law that the district court could not have used the elements clause for these predicate convictions whether it's for holloway or so for some other reason so elements out of the way but we affirm the sentence because we hold that the district court could have sentenced him to an enhanced aka sentence under the residual clause is a case any different for you yes roger i think it's much closer because you consider the appeal i still think you don't why is it why is it closer than it's closer because that defendant is still dealing with historical facts no no no but before you get to what the panel did you're now looking at what the panel said so if what the panel did in my hypothetical matters then you have to address judge anderson's question about why the panel's decision doesn't matter at all because of the panel decision doesn't matter at all then my hypotheticals an easy one for you too and that is it that defendant loses well you're sure and i do think that are your hypothetical is easy and they do this i was i was trying to answer and we're going so you don't look at that and that's an end that hypothetical you also say it doesn't he laid out the argument that there was under the residual clubs and nothing in our panel on appeal didn't apply to the armed criminal and the that your honor is it didn't reach the assault and battery conviction at all and of course that was routine that was the fourth conviction even post johnson and you don't reach the questionnaire that the resisting arrest was it right and so you can't infer anything from that if it was enough for a defendant under beeman simply to show that the direct appeal panel on the result relied on the residual cause that opens the floodgates because that was routine if you had to draw drug offenses and a residual cause offense of course they're has to be that even though in fact the enhancement clause could not have the enhancement could not have been based on the  just to clarify a few things the district court got it right because the district court the first circuit case law to the extent that is controlling it wasn't but he followed that decision let me tell you the best argument against your position i think if that were your position tha they made the mistake based on the residual clause with respect to resisting arrest so the resisting arrest residual close is the postal that you get to look at it in then you say the director you were wrong by air therefore if the if if they were applying the law as it now is which we do with samuel johnson they would obviously have breached the battery because they had to get the third one and when they got there they would obviously have the president makes it obvious that that  y that lengthy recitation that you've just given us is exactly the type of counterfactual hypothetical that i believe every defendant moving on a successive twenty to fifty five motion would love to do but beeman says that's not the kind of analysis that we're going to do and that's not new to him and that's ed that's twenty two fifty five this is narrowly strictly limited and he has to show what did happen and we know what did happen and as soon as he crosses the line into what could have happened what would from what they how the maps of the question are you know the way they affirmed it is also clear they affirmed on the basis of the resisting arrest our point is that and i think this goes back to judge and maybe your question why do we look at the sentencing court only because that's where everyone has a p s r everyone has a transcript there's a set point in time as soon as you look at direct appeal panels with respect to the work that you all do it's not going to be clear what happened because you can affirm for any reason in the record you don't have to reach questions that are necessary so the record is going to be replete with opinions saying we're affirming on the basis of the residual clause that doesn't tell you anything about how they were actually sentenced in the first place and i thank the judge anderson i will address that question i think you wanted me to address i want you to address also the argument he just made it very and that we shouldn't look at the direct appeal because it's not as close to the government is the one presenting the hypothetical here we're pointing to what actually happened which judge chauffeured i think you pointed out and judge andersen you did the record says resisting arrest you were sentenced based upon it it affected adversely your final legal sentence through direct appeal which is black letter law what happens through direct appeal is part of the historical record in mr weeks case because he did appeal directly on the very issues that the court decided so if anyone's throwing a hypothetical out in the room as to what might have happened it's the government we first point i'll remind the court to what actually happened which is mr weeks is an army career criminal the portal judge anderson because of the residual clause we've established under beeman that he was sentenced and his sentence turned the legal basis offered to make it final was the residual clause that satisfies the burden under a beam and now we're forced to address the assault battery because of the hypothetical that the government is trying to plug in and say oh ok well that's what happened and that's all mr weeks can do is point to what happened that's what he has to work with but now we're going to substitute assault and battery because that was elements clause and he loses on that basis first that's not the basis for his final legal decision which under black letter law counts what this court does on direct appeal counts secondly assault and battery at the time of direct appeal when the full historical record is considered the actual historical record factual and the legal precedent it's judge show flat pointed out which is part of that record made it obvious under the standard of that that predicate assault and battery could not have been used at the relevant time at the time of direct appeal because the first circuit said no curtis johnson supreme court binding precedent said you can't just rely on to assault and beat in essence that's what holloway made its decision and the seventh circuit said did assault and beat is simply not enough to establish a violent felony so you have two circuits  decided a week after mr weeks sentencing it was decided literally a week after mr weeks sentencing it was cited to the court under rect appeal and it was the basis for the holloway decision saying did assault and beat it's not a it's not a federal question it doesn't describe what mr weeks did it describes an offensive and consented to touching a reckless battery as well as the harmful kind we can't base an arm create criminal fifteen to life based upon that boilerplate charging language the relevant time here is direct appeal the court in demon was not handcuffing the eleventh circuit to never consider the appellate record in the very bases offered on direct appeal for an armed group criminal  that's what doesn't make any sense and it won't open the floodgates because if you look at and i did the west law search there about twenty four cases that i could come up with citing beeman not a single one of them has this posture where the direct appeal you look elsewhere and all the circuits come up there i have not in terms of running beeman no your honor footnote five doesn't cut off i can't guarantee they're all over the lot