conviction for class c aggravated assault does not qualify under the arm criminal career criminal acts force cos we know this because class c aggravated assault under tennessee law encompasses three different crimes of which do not have the requisite element of force the dispute in this case centers on two different questions the first is whether mr sloss or has waived his right to bring this claim the second is whether he has shown that he's entitled to relief whether he's proved that by a preponderance of the evidence that he's entitled to relief i will address each of these questions in order first waiver the government in its brief cites number of cases in support of the notion that the waiver in this case isn't forcible however it does not cite this court's published decision in caruthers the portion of which that deals with the question whether an appellate waiver is enforceable when the met maximum is still good law even after craig r s decision yesterday the government doesn't cite caruthers instead really the only case it cites that actually deals with a case that case in cox as mr seltzer explains in his brief the panel didn't actually deal with the published decision and caruthers and it's not mentioned at all and the second thing is all of the site all of the decisions that it in support of the notion that the waivers and forcible don't actually involve claim that the sense exceeds the statutory maximum and they don't involve claims in which the sentence is based on an unconstitutional criteria the yes our position would be that in these circumstances those kinds of inquiries are not part of the equation that sort of operates as an exception to the rule that waivers are generally enforceable even we're talking about the waiver of ordinary constitutional rights such as the procedural rights that you waive every time you plead guilty or any other for example in all those cases where booker or the claim was that i didn't knowingly and intelligently away my right to be sentenced under the advisory guidelines those are all questions that did not relate to these particular and exceptional circumstances which is that the sentence exceeds a statutory maximum and just to sort of sort of add a little bit more to this idea that this is an exceptional circumstance what's happened is mr said the claim is that mr saucer is currently subject to a sentence that exceeds the maximum that congress has set by law in hell versus masters and i know i didn't cite this in my briefs but in masters the court recognize that there would be a separation of powers problem with someone serving a sentence under an unconstitutional me a sense that exceeds the maximum set by congress so it's really just sort of all the package that it operates as an exception when the sens the claim is that the sentence exceeds  criteria under the a c c ery so what obviously the state takes a different position so what is what is your case best support your argument that a government that is not qualifying so we are talking now we're talking about the merits the question whether his aggravated assault conviction qualifies you start of saying that it didn't it did everybody serving five years more of them the max that's right so actually the government really doesn't dispute that as the statute is was written in one thousand nine hundred nine that classy aggravated assault encompasses three crimes two of which do not not actually have the requisite element force what the government is arguing is that mr slusser has not met his burden of showing that the district court actually realized on the residual clause back when he was sentenced in two thousand and five i believe as a historical fact and the answer to that question is well yes he has met that burden that burden by the way comes from as of now comes from this court's decision and potter where it held as the department of justice urged it to do that the burden is on the the movement in a twenty to thirty five case to show that the district court actually and solely relied on the residual clause when it counted that conviction the dependent conviction under the residual clause mr saucer actually meets that strict burden because of the record in this case the record in this case is the judgment from the tennessee court that judgment only says that he was convicted of class c aggravated assault and it doesn't tell us which one and under the categorical approach which applies even when we are at this stage even when we're looking at that historical fact under the categor choice the only way the district court could have counted that conviction was to assume that it was the least of the convictions the ones that don't come out of the force clause and qualify it under the residual costs so that's how he meets that first part of the burden potter actually doesn't go to the next stage because in part as it held that mr potter had not was not able to meet the burden of showing that the district court relied solely on the residual clause because there was nothing at all he was clearly convicted of the particular according to the court he was convicted of generic burglary and the the burglary in georgia has always been generic burglary and there's nothing to say otherwise so the facts are a little bit different there in the court didn't go to the next step the next step is to show prejudice and mr saucer also was able to show that he was prejudiced by the just for courts reliance on the residual clause when it counted that conviction and the reason he can so prejudiced is that the same shepherd documents do not allow this court to decide that he was convicted of anything other than the two non qualifying offenses so mr spencer has a good breath yes kaufman i'm encouraged that i search your brief your we started with the cox being of a case that is seemingly on all pours unpublished granted and you say carruthers is a better case than i am i'm searching your brief in the government's brief and i your i don't see it in your brief nor blue state which didn't seem to respond to it well i can tell you that's eyesight curtis and curtis would now were you want us to think about that one all colonels are lies on and and so i would say that in that way carruthers was cited but i was in the curtis citation is that it i don't anyway i stopped you because i'm looking for that and i just didn't see it so oh on page two it might be that i that the r index doesn't properly capture all the cases but on page two of my reply brief i start with the citation to carruthers and then cite all the other cases that also say the same thing my apologies if i didn't get it in the index ok i was just trying to stay with you and i started there you were about i could judge donald question which is basically about the merits and the the way to really think about this is to think about it in those two parts which is has to do with the historical fact of what happened at the original sensing and then the question whether there is prejudice today and mr slawson or i would end with this now is the mr slawson or has actually with the same shepherd documents proved his burden in both  inquiries and with that if unless you have any further questions i will sit down you preserve some time yes thank you may please the court my name is look like lauren and i'm here in behalf of the united states the denial of mr saucers twenty two to five motion should be affirmed for two separate reasons first mr saucer waived his right to file the twenty two to five motion in his  that carruthers curtiss hold differently with respect to the waiver yes and unfortunately counsel statements there miss characterize those cases a little bit first i'll begin with curtis curtis didn't actually address this issue parties argument didn't express any comment on the parties argument and remain the case for reconsideration to the district court in light of state what then subsequently happened in the case is in light of state the government did waive its reliance upon the waiver argument and that case has been resolved in mr curtis's favor it is back on the table it is back on the table the the caruthers case is out there and  with the reason we didn't respond to the other cases because it was cited in the reply brief so we weren't allowed to file something responding to it but i'm happy to respond to it now we think that cox is really the controlling case here it's a recent case it's unpublished it is directly on point and we do not think that cox is wrong in fact i would note that the cox sought cert recently and in march the supreme court denied his petition for start and i think it did so for good reason because cox was arguing for some sort of exception that not even the recognized they have stated that carruthers stands for the proposition that a challenge to an arm per criminal inhance mint is is an exception to the important billet of appeal waivers that is not  caruthers specifically said is that it recognize an exception to appeal was that they would not enforce appeal waivers people were making claims that their sentence exceeded the secretary maximum however caruthers expressly refused to decide the caruthers specifically said look it's possible that these kinds of challenges are really raising challenges to set up for a maximum because what may be going on here is that we don't have to separate offenses the sense of being a felon in possession of a firearm in the fence of being a felon possession of firearms as an ar whether we have to offenses or not that was in two thousand and six five years later in two thousand and eleven in the united states big mcmurry which is at five fifty six fifty three f thirty three sixty seven twenty eleven case publish decision the then now we have mcmurry providing us guidance and if you look at the cases of say united states v a most unpublished asian six zero four f appendix fourteen twenty fifteen this is from this court they looked at that and they said look this would seem to indicate that what caruthers said about you know this issue of whether our challenges our poll are not enforceable it would seem to indicate that those things are in forcible but in nevertheless in every one of those cases out of an abundance of caution the courts have almost always jumped right in decided the merits and not addressed the enforceability of the waivers but this is an issue that has not been decided crothers didn't decide it in the court has recognized that it's not clear that these kinds of challenges really are exception to the important realty and it would make sense because if you think about it you know that when you are look looking at weaving twenty two to vibrates one of the very types of things the twenty two drive is about it's not about to you know bear the risk that there might be a favorite change a law in their favor all the cases from other circuits where waivers have been in force on the basis of the fact that the sentence was above the century maximum involve situations where the sentence imposed was well above the sentencing range that everybody understood to be a political at the time based on the statutes right a sentencing range that have been set out as you committed a mail fraud offense in your your  years said out the plea agreement and sentences like twenty five years everyone said of course you shouldn't have been forced that waiver because at the time he was negotiating the police everybody was operating under the assumption of what a certain range exactly in this case mr slusser himself agreed that he was an armchair criminal he agreed that he faces sentencing range of fifteen up to life imprisonment so there was really no surprise when he received the sentence he received in this case  published prior citizens that undermine it again crothers is not to the contrary that said happy to turn to the merits argument her eyes i would call the burden argument because really what the question is is who has the burden here and this court recently answer that question very clearly said that when you are raising a johnson claimant to twenty to thirty five you as the petitioner have the burden to show that your prior classification was in fact actually based on the residual clause because it was based on something else you haven't suffered any injury hundred johns and that's consistent with well established rules that this court has employed for over fifty years that shown that his tennessee aggravated assault conviction could only have been counted under the residual clause not at all your honor he has shown that he had a set to see aggravated he was convicted of a class c felony tennessee aggravated assault conviction the vast majority of the court judgments but that's all of the judgment says we do not have the indictment in this case it's just it's simply not in the record but if you look at the tennessee statute there are multiple you can commit a class c felony aggravated assault the vast majority of those ways and the most frequently charged type of class c aggravated assault are the ones in subsection a and those variants of the offense categorically qualify as violent has to show that his aggravated assault conviction was actually a non qualifying variant because the fact that the majority of class c aggravated assaults are the the subsection eight type or does he just have to show that without information that you just talked about because the sentencing court here to the court may could have that information to make an informed decision based upon the type of conviction at the time that mr slawson was sentenced everyone convictions qualified and there wasn't a discussion in the sentencing transcript as to which clause they qualified under and i think here with the district judge did is it appropriately considered the p s r not for purposes of using it as a shepherd document which we acknowledge shouldn't do well with the district court in the twenty to five proceedings that looked at the p s r to see he was there any indication the p s r that would have suggested on what basis we thought this was a violent felony and the fact that the factual description of the that shows that that that in of itself i think was a sufficient basis to affirm that it's your courses in here the district were reasonably looked at the prior record and his job was to determine has mr saucer shown that it is more likely than not that as his initial sentencing his sentence was based on the residual costs the short looked at the record and said no it was not more likely than not it was based on as a real cause if anything it's more likely than not that it was based on the use of force cause and mr sawyer has provided no evidence whatsoever to show that it is more likely than not that his prior aggravated assault conviction actually involved in non qualifying variant and the only information we have about his conviction and mitten lee not from separate documents but the information we have about the conviction of the undisputed facts about it in the p s are those undisputed facts indicate that it must have been an eight type of aggravated assault so there's simply this is a situation where yes the shepard documents lucidly show either way but in this situation that absence of information we use against the petitioner because he is the one who has the burden and the supreme court has said look when when the evidence is an echo boys the party with the burden lose i'm certainly happy to address any other questions the court has about these arguments are about burden issues we have none are i think you can thank  but what about that burden council so starting with the burden i would say that when it comes to looking to see what actually happened as a historical matter in the district court back in two thousand and five we don't just throw the categorical approach out the window when we do that we don't suddenly get to start rooting around in the p s r to find out what was in the judge's mind but speaking of burden yes with your client given the burden what's your client's best argument for  saying that his his sentence use the category he could have used more likely than not that the categorical i'm sorry that the that the residual clause with that was the treasury his best argument was back in two thousand and five when the district court was deciding whether and how to count this aggravated assault conviction that under the law at the time taylor the categorical approach the only way we have to look at the judgement and when he looked at the judgement the only thing he assume that mr saucer had committed one of the offenses that only qualified under the residual clause but that's the way the law operated the law operated then as it does now to require the categorical approach and the for his ok he carries his burden by arguing the categorical approach that that is what occurred at spec particularly when the record is completely silent about what the judge did then the categor approach steps into that in order to answer these questions otherwise we have in this case would give your core of the benefit of the doubt with respect to whether it was residual cold on which the conviction yes exactly because the job we have i would think we would presume the judge followed the law at the time to look at the shepherd documents or would have looked at the shepherd documents had this come up and decided that it counted no matter what under the residuals are where you were to put that in your in your argument the guard clearly said it was your basic assault well the p s r doesn't actually tell us what the offense was the p s r is the representations of the p s r writer and when we look at these those facts no there was not and but that doesn't tell us what happened at the time when it when we were asking potter asks if we're looking at historical thing we're asking a legal question which is what did the judge do at the time unless the judge actually says out loud i am deciding that this council or the fourth clause we have a silent record weird we look back at the state of the law at the time and what the judge did at the time based on the stand a law that's how part of works and there's nothing in part of that suggests that information in the can suddenly be transformed to be part of that decision in fact i would point out that the department of justice in its brief in potter when it got to that question said that what we do is we look to see we can't look at the p s r and we're looking to see what exactly what the what happened at that time there's no suggestion that we go in and we look at what the p s r said and we think that that's what was in the judge's mind at the time that he which which provision he decided that it fell under and you're taking a breath argument you do a very nice job thank you state to of course thank you the court has your matter and we will take it under advisement and issue an opinion if you courts and i believe that the other cases today are submitted