if you find for mr middleton he is now over served the statutory penalty for being a felon in possession of a firearm let me ask you this question ma are we do limited in our ability to dispose of this case if we agree with you by the certificate a little bit only in other words meaning we would have to send it back and let the district recent are we do it here well i think that you would need to send it back because there are issues having to do with the other offens that were at his original sentencing found to either be or not to be qualifying predicates and so those issues are not directly before this court based on the certificate of appeal ability so i think it would need to go back to the district work are you sure i'm not sure but the search if it could have appealed billet was as to the involuntary manslaughter offense and the government has made the argument that the p d p idea fence which was not counted as a qualifying predicate at his original certain saying could possibly count and we don't think we can have waived it because just as if an individual defendant were to come in later and say this offense no longer qualifies therefore you should correct right when they said that the residual clause was unconstitutionally vague government said in the supreme court ok let's go back because now we want to argue it under the force clause in the supreme court said you can't do that you didn't preserve that in sentencing when i don't you know twice  that that's correct i i had not specifically considered that last question sure and then i'm sorry i don't want to get you too far into the weeds of what if but it also does strike me that if this went back to the district court for recent in saying you couldn't recent into the defendant taking account of his cocaine trafficking offense correct that is no longer a predicate so i don't see how you get to three anyway well so that's why i believe the government would would want to argue that the p w i that it would somehow count well but then you have at best g w id and housebreaking but let's bracket that for now right you still need the cocaine trafficking but that's no longer a predicate that's correct i don't see how you get to three anyway why would you sell it back because but you can only get there if sensing is reopened right and once you reopen it isn't it t main for re sentencing knowing that it would be futile and thereby extending and on lawful prisons and i would be perfectly happy for you to decide the issue and not not go back to the district court for that very reason because he's over served if you find in his favor he's over served his sentence and the only issue would be of course that his supervised release term would change from five to three years and also the offense would drop from a class a to a class c i think felony such that if he had a supervisor released violation in the future  the net effect the government's argument about a categorical non categorical approach i think that it it very much makes it so that south carolina involuntary manslaughter is an overbroad offense which includes conduct doesn't include any force such that you don't even have to reach the recklessness argument if you want to just stop at ha then drives he has used mr hammer out his new use no force whatsoever against the deceit and so therefore you can be convicted of this offense in south carolina having not used any force at all against the defendant against the deceit and that's what the force clause requires that you use use attempt or threaten use of physical force against the person of another and in him bright and reckless driving and was convicted for involuntary manslaughter now that's an indirect use of force but again not violent force against the person  statutes were passed at different times and different applications there to address different circumstances the court in boise and said with no doubt that congress passed the button on twenty two g s statute that they sort of meant to or at least knew that they would sweep in some reckless garden variety assault batteries which as our criminal act violent and aggressive and it's unlikely that you know that language that thought that something is supposed to be purposeful violent and aggressive would not apply to the other clause in the same status so i would imagine all of the crimes under the arc or criminal act would need to be purposeful violent and aggressive so that would be my argument there vigil today and he turned out to help let's say to our overall drug conspiracy charges and then a south carolina trafficking charge he would not be in a c c today correct that there are men sitting in federal prison today who aren't career criminals and have space trafficking conventions and those are the legal sense i guess that you think you can go back in we sentence the defendant today re sentence a defendant it is as though it is a retroactive sentencing because there hasn't been a change in the guidelines i'm not talking about a change in the guidelines we now have a case that says you're wrong all along that they never counted as a predicate  are at this time still i strongly believe that he would not be any legal sentence if he were senate today with that reason it is today with that trafficking conviction as a predicate and why is that c because i'm not it's not crime it would be properly counted no it wouldn't our case when he was sentenced it would be properly counted and it would have been improperly counted because we have now clarified it never a predicate or your honor i don't think we need to even get that far enough because let's talk just very briefly about housebreaking my understanding is that your office is either literally conceding or on the and circumstances of this case not contesting that housebreaking is not a predicate again if a man committed a crime today and we're not accusing housebreaking would not count i don't know there are individuals where it has counted before and there was case law supporting that at the time i'm sorry so what's your argument on housebreaking that is housebreaking a predicate or not it no longer ears ok so you want us has the statute house but there has been no change just the law has me clear that housebreaking was never a predicate neither was trafficking he couldn't take advantage of the trafficking thing on p b s but now by hypothesis he's not on he  sentenced today day now those two things are not predicates you're saying you want to extend his unlawful sentence or you can go back to the district court and try to convince the district court that two things that are not today predicate crimes ought to be all may turn out to be entirely hypothetical depending on how we come out on manslaughter but this i have looked at a bunch of other cases now where your office has conceded housebreaking i just wonder whether your office would want to consider if involuntary manslaughter turns out not to be a predicate whether it really wants to continue to push this while this person sits in prison on what is at least i pathetically now and i'm awful sentence or whether you might consider doing one of the things you have done in the other housebreaking issues here you have the physical force element how can someone be killed but injury without physical force being applied i think it would be impossible hypotheticals discuss they are none the less force is used and so far as the poison is employed hamburg writes a very similar situation judge you have a man that recklessly employees alcohol to an under age person knowing that it's friday night there's a ball game in town and he knows what young boys do on friday night he employed by alcohol recklessly by giving it to the young men and then we have the force is obviously the vehicle hitting the telephone pole much i think a similar analysis with the castleman case on so i don't think hambre it somehow take us out of the use of force on and force being applied you know i think justice thomas if you read was eating and you read his dissent and was seen justice thomas would probably agree conduct as long as there's volitional conduct you can put these matters were then justice thomas poses hypotheticals for example the text messaging father and his descent where he recklessly takes an action the car crashes and his son goes into the windshield the obvious sign goes and the windshield justice thomas complains one of the majority's analysis on our force has been poison was employed it was used and therefore while there was no impact as with a punch or a kid you still have a substance that can do damage employed used and so  is the body shuts down because of the poison reacts because of the poison are that would sort of force was this wrinkly most of the force would be up in the body shutting down i believe it was our former mean i would say that you know certainly the supreme court's spoke very broadly with the term use all that is new and different the court says one of the actor has the mental state of intention knowledge or recklessness with respect to the harmful consequences of his conduct of course alicia will censure you're making a choice and recklessness is the standard for involuntary manslaughter a conscious disregard of others safety sense to extend it to further situations and the guidelines are the a c c so i would submit in this case that we certainly have a use and we have a killing in this case force necessarily implied and categorically this should come within the arm career criminal act would also point out that i know when the brief counsel makes mention that involuntary manslaughter could be committed accidentally and the courts have used this language i disagree with that the statute says criminal negligence when our state courts use the word negligence  you know we have to read end of that the criminal negligence i e recklessness are as judge boyd knows better than me i'm sure he's presided over south rule and voluntary manslaughter trials while he was on the state court bench in south right as i read the cases it seemed like what was going on but tell me if i'm wrong is that using was that the reckless recklessness comes in the part where you just kind of negligently or mishandle the gun i'm so you're you know you you have not been careful you have been reckless about getting the initial handling of the gun and then if you actually pull the trigger by accident you can be convicted because you were reckless in the way you handled the gun and then you pull the trigger by accident and so if that's right my concern is that the only person you actually use force the pulling of the trigger might be accidental even though he recklessly got yourself into a position where you're mishandling a gun see what i'm saying and i found these cases confusing so if you can explain how to make that be great you're out of the way there are statements in most cases the accidental handling of firearms can give rise to right to a charge on involuntary manslaughter again i think you have to read into that criminally negligent way handling on fire right but and i am and so what i'm getting from the cases is that they're saying basically the part where you didn't have a trigger lock on your gun are the part where you brought the gun to the argument to kind of fly around all of that is where you get the criminally negligent recklessness but the actual moment where you pull the trigger is just an accident which wouldn't matter at all for state law purposes but because there has to be a use of force then the moment where you pull the trigger has to be reckless too and i don't see the case the same at in fact ice thought i understood them to be saying if you even sort of volitionally pull the trigger you can't get the involuntary manslaughter charge anymore if you engage your i don't see the case of splitting it up like that to be honest with you i don't know the you can accidentally pull the trigger but somehow reckless conduct on another prong of your behavior that overall fits and getting the charge i think it's one issue did you ask reckless in some regard that ultimately led to another individual d but i think you have to have acted recklessly when you pulled the trigger because nothing prior to that counts is the use of force does it i think it sets in motion that the use of force by recklessly that's in motion is not the test like you set it in motion when you call the guy and say meet me outside the barn no one is going to say that's the use of force i don't see the distinction if i have a firearm and i'm recklessly torturing it and accidentally p trigger employ if and i shot someone in the courtroom i have acted recklessly and employing force to shoot them whether i didn't mean to hurt anybody but that's the definition of involuntary manslaughter unintentional killing without malice but there has to be a reckless element of your conduct i don't think we can break it down to when i say well it was an accident i didn't mean to do it well yes but you handle the is to con a person who might deliberately point the gun and pull the trigger rather than often merely review it agree  but gay absolutely says that judge floyd and his we know it was looking at the residual clause there which no longer exists and talked about purposeful and violent my brassey of conduct with those offenses  think that's a good point and we don't know for example whether mr middleton but this is a johnson case we don't know whether originally his involuntary manslaughter conviction fell under that residual clause or it was under the force clause i would submit probably though i know he went to this court's precedent forecloses making a distinction but i still think it's worthy to know that insofar as we don't have any facts in the p s r about exactly what he did to commit involuntary manslaughter it probably fail under the force clause and that's why it was counted to suppress the predicate because without knowing some little bit more about the offense it would have been more difficult for a district judge to use the residual clause but yes but gay does say that about the residual clause your honor  engaged in violent conduct off the streets i would say if you look at mr middleton's pedigree he fits in that based on his criminal history and involuntary manslaughter is part of the story and on to be considered a crime of violence based on looking simply at its elements and a categorical approach but but you would have meant that this  alcohol wrong as two left feet or shows whatever in terms of because they were minors but what was the connection even connection with an axe that was open you have to be clairvoyant when i'm sure there's no evidence that he was well  says attempted use against the person of another against the put that the person acting not that force happened somewhere down the line against the person in the realm of physics and unfortunate tragically here what is said you do it against force against person what is the force against the person in the home right case where it's common sense where is your honor i think justice thomas case that speculate this is what they say it was states are looking at the federal gun from the government trying to get enhancement they're trying to make any kind of not in here but several types of activity criminal there in the back of the case say the car was about ten feet from his porch when he sold the alcohol to one young man and then om and he knows what they were doing that night he was caught on an undercover call with the it's the castle minus employing poisonous employing alcohol it's justice thomas hypothetical of the text messaging father which he says under the majority's reasoning has to be force and a use of knowingly as a way to cause is a harm or intentionally acting to place the victim in the path of an inevitable force so your argument would be that the defendant in ham bright employed alcohol knowingly as a device  no ma'am i would argue that you know that alcohol recklessly ok then it doesn't fit with an urban read because irby and read are very clear at least our court has held that these indirect force cases are limited to what they were talking about administering poison pulling the chair out as the person is about to sit down where you do it on purpose but indirectly i just don't see once you i just don't understand how those indirect force cases can work any more once you get rid of the knowing part the obvious part because otherwise they're not about in they're not about force at all they're about selling alcohol to a minor which is just not oars and reckless conduct under busying naturally should be extended in the circumstances i would have vehemently disagree with mr watkins argument about being able to use a trafficking offense at a recent saying also i would also disagree that we would use the old guidelines that were in a fact because you use the guidelines that are in fact on the day of sentencing unless they are more punitive then they were at the previous sentencing so i would disagree with that argument as well i also  have a very good argument to make for housebreaking that it should not qualify which i'm happy to make but that would not be necessary should the other convictions not  qualify in south carolina you have to have it on for involuntary manslaughter you have to have an unintentional killing without malice while either engaged in an unlawful act which is not a felony or not normally causing great bodily injury or death or a lawful act with reckless disregard for the safety of others the first prong can be met by a battery that doesn't necessarily and  can't be something that would normally cause but bodily injury or death for example under the chapman case which i cite on page twenty one of my brief he  his shoulder pressed against the decisions when pipe and was convicted of an involuntary manslaughter because they said that was a battery that would not normally cause great bodily injury or death so he that action met the first prong of the second prong about the which is normally associated with the use of a deadly weapon the the court is the cases are confusing because they  use language saying that the negligent discharge of the weapon the unintentional discharge of the weapon the accidental discharge of the weapon the unexplained the start of the weapon so yes you put yourself in a position where you're recklessly struggling with somebody over a loaded gun and it goes off accidentally and you can be charged with involuntary manslaughter in the matter case the woman was mackler was had a shotgun and she was raising it up to her hips to cock it and suddenly it goes off so she's intending to cock the weapon but it unexplained unexplicable discharges she's entitled to be convicted of involuntary intentional her actions are not intentional in that regard and i think the armed criminal act requires that the the actions be knowing an intentional and and physical force against the person of another one of the hammerite case the sale of alcohol to one person who then gives it to another who then drives his car is while they find it's reasonably foreseeable that someone