predicates for that by car count have an element of force therefore they had to rely on the residual clause can carry on pack this for her at the beginning if the supreme court and davis finds that the residual cause is constitutional do we have to address any of those issues i think you do your honor because the if davis says going forward that we no longer say that you know the residual clause can be  c conviction rests on if the residual costs like your primary argument here is that the residual cause is unconstitutional as you hope the supreme court will tell us in davis correct but what if the supreme court disagrees with that so i think the problem here s if it tells us that the residual cause means something less than a categorical approach you're still stuck aren't you well your court says a rico conviction would support a categorical what would support the residual cause conviction i think that would then then you're out of your havelock aren't you i think what would happen is that then it would turn to a fact based inquiry and the problem here is that the jury didn't do a fact well people here's here's my difficulty we're now saying if that happened this would happen if this happened that would happen so i guess my question for both of you is this is all very interesting and we want to hear your arguments but shouldn't we wait for the what what what it needs right so we don't we don't oppose holding this for a month and have to see what happens in  one is a factual predicate sure it's unusual and i don't district judge so it's unusual for me to see in agreement i'm sentencing entered into after someone's been convicted there must be some background to this that i'm missing you know your outer eye that it did happen with a couple of you know the cases from this was a very large case with a lot of defendants and the government may be actually able to explain that a little bit more because i wasn't here  when that happened it is a little unusual and i honestly don't know a lot more about it than that and the other question that i have relates to whether it matters whether nine hundred and twenty four c matters of the rico rico can be predicated on a crime of violence under state or federal law and the two that the crimes that issue here  attempted murder are crimes of violence under the elements clause under state law so i don't know why it matters what one hundred and twenty four c says for that reason and i'll get my last question in even if you knocked out the crime of violence issue altogether it seems to me that the sentence on the rico count the maximum sen could have been imposed on the rico care would have upheld the sentence in this case in any event so why why do we have to argue about a plea waiver and what the supreme court is going to decide on one hundred and twenty four say so i guess i'll try to remember all of those i forget one of them please please remind me so let's start with the last one st of all i think the question of what the statutory maximum was on the rico conspiracy is not necessarily relevant now we agree that if the court grants relief this they can go back and the district court could give him more time on the rico conspiracy but that doesn't necessarily mean that the nine hundred and twenty four c can stand up if indeed our arguments are correct now going to the rico conspiracy issue i think your honor said something along the lines of the rico would be a crime of violence the fact is that it's rico conspiracy and the conspiracy is what takes it out attempted murder and assault and they're under the that they're there crimes of violence on the california law and and so i don't and i don't see why you would it matters and in terms of your agreement which is another issue lurking here they get that they they've agreed to a particular sentence and of the sentence if the rico count the sufficient to sustain the sentence regardless of the and twenty four c were we have to get into any of the i think we get into it because we don't necessarily know that the district court would impose the same sentence for the rico conspiracy of the one hundred and twenty four c we're going as i guess technically you're entitled even if and twenty four dollars c case of the supreme court why would he care in other words why would he why would he say oh i'm i'm not going to accept what the agreement of the parties i think he might he might not care he might care  but the issue is that we have to actually remained to see if he does care yeah i get your point and maybe if we wait for davis the government will be happy to vacate a one hundred and twenty four c conviction and since the sentence would remain the same anyway i've got a i've got a question about the waiver of though there is a collateral attack an appeal waiver in this case we recognize generally an exception to those when someone has gotten an illegal sentence but you're not challenging the sentence in this case indeed it appears that you all agreed on the sentence or at least agree to the parameters of the sentence you're talking to conviction nine hundred and twenty four c and so why shouldn't we find there why should we dismiss i c t oh i think our briefing said that we are attacking the conviction and the cent i know but you're really not in other words you know i mean i know your briefing says that  terrific briefs i compliment you on but really on nine hundred and twenty four see you're only attacking the conviction because you're not saying the sentence exceeded statutory guidelines or even was unreasonable under the circumstances what you're i think we didn't wave our right to appeal because this is the same situation as in tours in tours there was a johnson claim and they said this is an illegal sentence and that in my understanding i believe that was an academic interest taurus the difference was that the johnson issue went to eggs went to sentencing it went to because it was a guy the question was what what what what facts could you use to enhance a sentence or two increase of sentence in this if in this case nine twenty four see being a strange animal the the johnson issue goes to whether or not you actually committed the crime and i think you've waived your right to claim that you didn't commit the crime so that's why i'm having difficulty with  us to where the court has ruled out it doesn't i mean i can't find any case in which a party is waive the right to appeal but nonetheless gets to come up and say i was unjustly convicted can you can you find where i don't have  innocence and rigs like that but we're dealing with an appeal here i just i i i think i disagree with your honor that i'm sure you characterize is different now but i am not but i understand your point and i'll look for a case and if i can find one predicate offenses underlying and to see if i can convince your honor that they actually don't rely on the force clause and here's my argument in in a nutshell i'm not sure whether you look at california law to decide  were that i'm saying that this court in all of its two hundred and forty five cases has relied on california law saying that recklessness and negligence is not enough the jury was never instructed on that but my question is if in order to commit attempted aggravated assault as a matter of law the crime requires intent and i think in california all it tempt crimes require intent then what difference would it make whether the jury was instructed on it your honor is actually i believe assault with a deadly weapon and then attempted murder right and i think requires intent at so your honor i'm actually going to i was thinking about this last night and i found a california chip but i'm going to tell you about it really quickly it's called people the angelo and it was a situation where a person was charged with attempted murder because she basically didn't feed her child her child was malnourished and she was charged with this and that would be a perfect of the you know here now we get down to the strange thing that josh did but you didn't get separate verdicts on those two so if one of the two would support the vicar a vicar finding and let's put aside for a  inconsistent verdicts issue if one of the two would support it then isn't that enough no why because this is not a harmless analysis this is a situation where the jury decided and it decided on one of them we just don't know what with what but  required if there's sufficient evidence on one of the two stuck unless you've asked for separate and separate real because this is a situation where the jury actually made a decision it's just we don't know which one it is because we don't know which one it think when a jury is instructed on two alternate ways and you don't ask for a special verdict and the jury finds you guilty and they and the evidence supports one of the two you can't come in and say it doesn't support the other i think i would say moncrief says that we have to look at the least of the acts criminalized under the by car and the least of the acts criminalized would be whichever one it didn't fell fell under the residual clause and i don't you know we've taken you side on this what i really want to hear from the parties on and this unfortunately we've used all your time is this strange thing the judge did not tying the special verdicts to the counts i mean linda said you know in a perfect world the judge would have said you find him guilty of rico if so make these other two findings do you find him guilty of iker if so make this other franti what do we do with this this i can't find the number five findings what do we do with that i think that's a great question i think what happened here is that we had alternative jury findings and that may have resulted in part because the jury instructions were a little confusing the judge said if you find the crimes of violen crimes plural so because of that i think that your honor doesn't have to rely on both basically you can say this is an alternative jury finding because it's an alternative jury finding we have to assume that it was  finding on the rico conspiracy and therefore you can't rely on whether you can't you can't b c and i know your time's up but here's here's why this case is so maddening in addition to the issue the judge korman raises that it probably doesn't make any difference to your clients  in the last finding is clearly made in relation to count twenty which is not the rico conspiracy but the vicar claim it's worded maddening i mean i'm i'm a lawyer and i have trouble understanding it but at least lawyers understand what it says i have no idea what the jury would have understood to do but if you read it as a lawyer it basically says we found that they are guilty of brandishing a firearm in relation to  the last the last one of the verdict that finding is solely in relation to the vicar can write that one the one right above it is solely for guess they forgot about the one above and i don't think it helps anybody i'm thinking about that one i think we do with i think the last two verdicts are alternative findings and i i honestly you know i think it's a very difficult situation but because there are alternative findings and that's different than a verdict i don't think you rely on both of them and you have to assume that it's the rico conspiracy that you rely on the reason that i'm i discount to the significance a number four's that that ties back into the johnson issue because if if in fact they didn't commit if in fact there's no residual cause violation there because of the wreck of the i don't say big picture take on this your honor is because we don't know what happened you have to assume that they relied on the least of the least conduct criminal against the government if davis comes out against it what do we have to do in this case don't you don't you don't we have to remember at that point at that point the issues that we have raised here will fully be before your honor's and so the question then will be does not if the jury based its conviction on on that kind of a and that offense in this case the jury was told either or and when it and then when it got to the individual defenses it said not this one conspiracy and did they discharge the firearm in connection with these by car offenses the jury concluded based on the verdict form unanimously that it was both crimes that the discharge of the firearm was in relation to both th of my car and so my question is under those circumstances you want to elevate that last finding into a verdict and that's a little different than bracy and powell powell just  inconsistency is a verdicts what do we do with a finding well imagine in this case that there was no rico conspiracy that grounded the one hundred and twenty four sea offense so the jury only returned a verdict saying that the defendant was guilty and count twenty the residual corsi i think if you make it a clean example as embrace ian powell it's a pretty easy case the problem in this case is we don't know which of the two and so now you're saying to us even if you throw out the one they may have relied on conspiracy given that i found this these instructions terribly confusing in particular the jury verdicts i mean they in my mind the judge the judge should have said did they commit rico and if so did they commit decker and if so but he firearm they must have unanimously concluded that they had and was in connection with a crime of violence in the jury in this case we know found it was in connection to separate crimes of violence one being the rico conspiracy the nd being the by car w conspiracy and the elements of the rico conspiracy at least in this case we are not contending support elements clause i'm a virus the jury wasn't instructed in this case that in order to convict of rico conspiracy they had to find the defendants committed a crime what's the background if you know sure i mean my understanding is the defendants were facing state charges as well and it was a lot of time that they were facing on the state charges for the same exact conduct that with the basis for the rico conspiracy conviction as well as the brandishing and the discharge conviction as a global resolution where the defendants would agreed to plead guilty on the state side and ultimately they didn't obtain received eighteen year concurrent sentences to the federal sentences that were imposed here that in consideration for that as well as and this is important for the purposes of this appeal their weight agreement to waive any attack on their trial convictions as well as collateral attack of the conviction and sentence itself the united states plea they were they were basically bargaining for a sentence in order to in order to deal with their state more problems and so they didn't care  were the knowing crimes justified that they would have taken it if it were you know there were spitting on the sidewalk i agree your honor i think had this been a global agreement of twenty years on count one alone we wouldn't be here at all it was definitely an understanding that the global time that the defendant would spend in custody would be twenty years and why did you care by the way why didn't you just take why do you have to why did you mean you the government why did the government care why didn't they just here we are they do you lose your position on whether this is actually a challenge to the convictions as opposed to the sentence for the purposes of the plea waiver frankly i don't think it actually makes a difference as to whether it's a challenge  isn't he saying that and if the defendant saying that they have i'm not guilty of a crime and therefore you can't sentence me to to what to for something that is not a crime but it is is five you're right and thanks but the waivers are the same i suppose that effect of the waiver is the same and courts i don't understand why we're here at all other than just as it intellectual matter because i've surely these forces going to be residual clauses likely to be struck down and but i don't know if i were you i would not i'm not sure i'd be pursuing this appeal and we're here because  that petitions are filed your honor and i would know too from the court's observation that waiting for davis may avoid an instant entire intellectual exercise i think there are some interesting legal issues about whether attempted murder and assault with a deadly and then your friends clients would be in exactly the same position that they would be if they later won and that's that's correct and at that point the conversation about george wirth laws observation about whether it makes so this whole thing is pointless even if they win here if they got the whole federal conviction romero theoretically they would still be serving the same exact sentence in the probably  exercise on both sides so i don't blame anybody for bringing the issues to us we just know the question is whether we have to work our brains very hard in resolving the thank you all right thank you very