your honour's council my name is nova johnson and please represent the appellate mr john abbott in the case before the court today i would like to reserve two minutes of my time for a bottle mr abbott pled guilty to one count of conspiracy to distribute methamphetamine sentencing hearing several challenges to the calculation of the bias or guideline sentencing range all of which were overruled today i would like to focus on two particular errors that the district court made in calculating the guideline first the district court erred in finding that mr abbott was a career offender being a manager or supervisor pursuant to three b one point one in conjunction these errors raise mr abbott's advisory guideline sentencing range pretty dramatically increasing his offense level from thirty three to thirty six his criminal history category from a five to violence because it doesn't satisfy the force clause in the offender guideline and it also doesn't satisfy the definition of generic aggravated assault it's overly broad i would code section seven zero eight point one is the beast line iowa assault statute and in the falls under that provision is going to be deemed a domestic assault if it's perpetrated against particular persons a spouse a domestic partner a child someone living in the same household and as was the case with m if the domestic assault is quote committed with the intent to inflict a serious injury upon another the offense of the elevated to the level of an aggravated misdemeanor under iowa code section seven zero eight point two eight two c and that of course is what triggers it is a felony for purposes of the career offender provision and is that the that the phrase that what you're asking us to focus on the serious injury upon another yes well yes there's actually two components to that your honor so first if assault  away point one itself satisfies out of the force of the aggravated assault we don't even need to look because that would of course fulfill the requirements of the current fender guideline and my argument in this case is the statute does not so then we need to turn to the seven zero eight point two and determine if in every case that qualifies as a career offender crime of violence and i would also submit secondarily that that does not meet the definition why doesn't a serious injury upon another in light ever i know it's unpublished insufficient to qualify as a crime of violence then we go to these enhancing penalties now in the chumming case the court didn't consider this particular serious injury language and of course this court has held in  at bodily injury it's reliant on the castle in case to say that you know bodily injury requires force capable of producing results but i was statute is very different and the chapman case didn't recognize that i statutes do not require bodily injury they require serious injury and serious injury is defined as bodily injury or a disabling mental illness and not is the key here but with the ch didn't really evaluate whether that disabling mental illness by itself with sufficient to get us where we need to go what they said instead is that under doing a film veras the mr chapman hadn't pointed to a case where iowa had applied that particular provision in a way that made it clear that they would prosecute and assault in a way that includes an offensive touching that could cause a defaming mental illness so what would be an in crimes of domestic violence now of course the district court judge when she was considering this she didn't undertake a categorical analysis she just that i'm applying this commonsense approach and domestic violence is always a really violent type of crime and i agree that oftentimes domestic violence is a very violent crime that requires another's beatings and terrible things that happen but just as frequently domestic violence is is kind of a mind sort of thing where you're you're taking steps or for example to take that the least level under seven zero eight point one and insulting or offensive contact if i'm a husband trying to terrorize my x y i could certainly be taking all sorts of you know moving towards her in a quick fashion scaring her putting her in fear of that offensive touching well trying to cause her some sort of a mental incapacity i'm going to drive this woman crazy i'm going to drive my former partner crazy i'm going to cause her to have a nervous breakdown because i'm going to get in her face every chance that i can get and so i don't think it's at all implausible that the statute could and should be applied in this particular way but because we have to apply this categorical approach level of physical force strong physical force that is capable of causing physical pain or physical injury not mental pain or injury and there are there any other cases that you have found in any other state circuits where they've analyzed any other state offenses that are similar to this that carve out a separate type of injury that is mental and not physical i have not found  particular cases and i did undertake a fairly extensive search i would certainly be happy to supplement should i find something after today's hearing i do know that the government cited in its brief the councilmen decision which was looking at the tennessee misdemeanor crime of domestic violence statute and and i just wanted to comment on that really quickly because that stance you did discuss impairment of bodily member organ or mental faculty but again i think that this is what differentiate but we have a clear two thousand tankers johnson case on point that for purposes of the court force clause it needs to be physical injury physical physical problems and i think that the definition the generic definition of aggravated assault also has that same problem because an assault in the typical generic sense is a violent crime this is why we're considering crimes of violence and under the if you see a violent felony we're anticipating some sort of physical conduct in here the physical conduct required under the i would statute is just so minimal that when coupled with that that the conviction can be had simply by causing someone serious mental distress which is very typical in this type of case i think it simply doesn't qualify under as a crime of violence and therefore the district court committed a serious error i'd like to reserve reserve a place the court was dance and my name's cliff crocker and i'm the prosecutor from iowa the prosecutor this case first i'd like to say this is a harmless error case judge rose could not have this more clear when she imposed the sentence in this case she specifically said that this is not a guideline case this is a thirty five fifty three a case and i would impose the same it's forceful it's strong but it doesn't have any follow up explanation as to why the alternative sentence would be the same even if the other two the career offender and the role and hanson it didn't apply to something that it is and that's something of a concern here or can we read it from someplace in the record i guess that's my hesitation on this one as there just doesn't seem to be one has it taishan doesn't seem to be a lot of explanation other than just it's a thirty five fifty three analysis i think that she explained extensively how she viewed mr abbott she talked about his long criminal history a very serious violent behavior and she characterized it repeatedly about when she clearly had analyzed his life she'd looked at his childhood and she looked at his adult behavior she looked at his behavior in this case this is a seven pounds of  case in a few months that mr abbott was getting from las vegas and bringing to iowa so i think i would i would characterize that her explanation of why mr abbott is situated the way he is of course we have a pre sentence report the describes his very violent behavior and his repeated violent behavior so also she does go on for three or four pages especially when she compares to the other people but she ends with i think it is with talking about the other people they also did not in my memory guideline out as high as this particular defendant dead i'm looking for my notes but they just don't want to work for me i would also i don't know what a way  we're not using the guidelines go it well that was a compare and she was asking she was responding to mr abbott's attorney's request to sentence him below those other individuals and i think that's fair and she's accurate if his guidelines are here they're higher than these two other gentlemen but she also clearly explaining the difference and i can explain the divorce she said those that were in the same paragraph she says those are non guideline cases that's how she starts the paragraph exists is there not that's good for your other argument that they made up for the end of this no i disagree i think it's good for her because she viewed all three of them as non guideline cases and felt that mr a criminal history in the way that he should be treated is more serious than the other two different and if you had those two cases i think you would agree one of them mr lambie which is in the record here was a  cooperator he's the one who was under the direction of mr abbott and he's the one who drove the load of two pounds of ice back from las vegas under mr herman and mr abbott's direction mr herman didn't have the criminal history neither did mr lampy have the very serious violent criminal history the mr abbott had in the court pointed that out counsel i'm having a problem when you get to that you know before the harmless error analysis with the argument of the  opposing counsel come up with one scenario which is you know furtive movements by the spouse towards the towards another spouse creating a disabling mental illness but i can't think of another that's not that are a just which is you know an unexpected sexual assault which doesn't require violent force but obviously includes an offense of touching it seems to me that that would that would also satisfy the definition of aggravated assault but not require violent force so we have at least two circumstances that i can think of that would not require a violent force if you could lunge like this or you go like that what is that your honor that's a threatened use of physical force so that satisfies the force required if you overcome the will of  somebody reaches over and touches one of your you know touches someone else's private parts would that be violent force i don't under as we know what under the statute if there's an intent yes i would say yes and you know i think now we're looking at johnson for all of all situations when the johnson case was about not knowing whether this was in an offensive touching or an actual application of force and johnson doesn't really work in all the in all scenarios involving violence because it doesn't work with the mala station of a child a child may not be heard at all physically a child would not necessarily resist and it may not be force in the sense that we think of punching or threatening a use of force to a child i think it's interesting you asked for examples and this example she gave was actually lunging off and in otherwise threaten to do other harm to her forced her to watch a video kidnap her and although she never suffered bodily injury the court found that that was a crime under the iowa law and that could cause a disabling mental illness in thompson it's a little girl that's sexually molested he slaps or hits her and she suffers post traumatic stress disorder and i will courts that that's sufficient to cause serious injury so even the examples that they provide to the court on this disabling mental illness  exact thing and see have the state courts applied this language in an overbroad way i think when i say it cannot be seriously argue that a person who assault someone with the a specific intent to cause disabling mental illness could intend to do so without the use of force or the threatened use of force of the attempted use of do you think that this is the fanciful language and some of our prior cases apply even when the plain language of a statute  clearly includes some language in other words is it always the burden of a defendant when challenging something like this to come up with specific examples of prosecutions within the state or can we just look at the language and say boy that's included i think sw answers that and it says that we look at two things we look at the language of the statute and we look at the state's application of that language to their specific law which prevails if we have no prosecutions but the plain language clearly incorporates particular examples what do we do with that i'm not sure but i do think that disabling mental illness i can't think of a scenario where you could intend to cause a disabling mental illness without without ever threatening any sort of use of force of any kind what about it is i understand i was general assault statute that they have there is the word offensive agree and i think what makes the difference here is the actual additional intent to cause serious injury i think that converts the overall assault statute to a more serious crime and that's why it's a crime of violence even if it's just the baseline of assault based on an offensive and i think think that's when you get into how you apply that statute in a generic sense and in how this take courts apply it i'd like to make one more point the the guideline range that the defendant claims is the proper proper range is two hundred ten to two hundred sixty two months judge rose said ok assuming there's no career offender assuming there's no honour's and like to really focus on the harmless error but i did want to really just quickly address where mr kronk said that you know a lie and is necessarily violent fourth let's simplify it even further a former husband every time he sees the wife strokes her cheek and based on their history he knew without the likely to cause her serious mental effect i don't think that anyone would characterize stroking somebodies cheek as more than an insulting or offensive contact and i would point out judge kelly that in fact i was supreme court has was far as harmless error goes i certainly did mention that there is a lot of room for negative collateral consequences this court in time if this if we found that career offenders are not eligible for retroactive guideline amendments there's currently a big question with that ten to one ratio on ice versus methamphetamine mixture that could have some type of a retroactive amendment that mr abbott would therefore not be able to get the benefit of because of this type of error and second i wan united states versus gall of course has been our guiding principle in this court has repeatedly said that the starting point is the guideline and this guideline and alice needs to be made and your honour's really hit on the point that i wanted to make which is that on page thirty and this was not in response to something the defense counsel said the judge had gone on for about three pages of the fenton transcript at this point where she said this is a thirty five fifty three any analysis however the other two defendants did not in my memory guideline out as high as this particular defendant did and i think what that really does is it demonstrates that in this case the guidelines were in fact the anchor firm which she made all of her subsequent to fish and i think my time is