good morning in may when is the court my name is meredith esther and i will be arguing this case on behalf of aaron bowen there's been a lot of briefing in this case but i think it's been narrowed down to one single central question and that is whether the federal crime of witness retaliation is categorically a crime of violence under the force clause of one twenty four c the statute at issue entails engaging in conduct that either cause a bodily injury against a person or damages the property of another person with a retaliatory intent do we go to the categorical approach before we go to air or don't you first have to determine if there was error here yes your honor and i believe that there was error here because the district court would have only been able to rely on that residual clause at the ridge at the original original sentencing and what evidence do we have of that well i believe your honor is getting type of question of whether there was johnson error at the ritz at the original sentencing and i think that the conclusion that is required here is yes because at the time of the original sentencing on the court's precedent p ts would have foreclosed any other option for the the court other than the residual clause and so once we have determined that there was johnson error at the original sentencing then we go to the question of fred's bargain said you could have bodily injury without contact right correct the predator guess was the law of the land at the time that miner bowen was sentenced which was in two thousand and seven i believe pres barga so this was a two thousand and five obviously pres argus has now been overturned right on to vero first we look at what would happen then right correctly i would point out that the government hasn't actually argued the snyder analysis and i believe that's because the government has conceded that under mccuaig and if the defendant is if this crime of violence is not actually a crime of violence under today's law he would be actually innocent of the one twenty four you just you just cut right to the chase instead of looking at these cases in sequences i think we have to under rule school and slide or we would look at them from the back yet right that's  actually innocent of a sentence enhancement whereas you can be actually innocent of an actual conviction and then twenty four c is a separate conviction and that's why snyder and driscoll don't answer the question in this case was related to new facts right and right quick in and the case talked about how narrow the actual innocence exception is if it's interpreted the way the government has conceded here it really does eliminate the statute of limitations in and very large groups of cases that wouldn't make it rare at all sure i mean i think i  on a one twenty four c it doesn't matter how long you wait there's no limitation that that's the position that we're taking and i think that's the position of the government taking  from the a c c a which is an enhancement one twenty four c is very different because you're not looking at a past crime you're actually convicting someone of that crime right scope of the right that we're talking about in this case and i think that that's the quote the question about whether johnson should be applied or whether basically we're talking about whether mr bowen has a johnson claim and i don't think it matters how demin was percolated up to the supreme court i think what matters is that to my extended the scope of the johnson claim to a new context which encompasses the very same language that mr bonus challenging here and why was backless decided differently that's all been decided differently because it was a guideline issue and i don't think that the discretionary guidelines it's not mandatory sentencing scheme versus dark or criminal acts and one twenty four c which have a mandatory sentencing scheme in which case the vagueness issues at play and the sixth amendment issues that play are are much more significant and much stronger didn't have anything to do with this particular statute or well as the identical language will be showing it was the identical language injunction through and it didn't apply until demise came along so why should why should  so the predicate at issue here is the federal crime of witness retaliation and the reason why i want to focus on it is because there's not a lot of law on the issue  require entail of causing bodily injury to another person or damaging the property of another person and this court employs a two step process for determining whether a park conviction is a crime of violence first  what the minimum force required by the statute is and second whether that minimum force categorically fits within the definition of crime of violence and in the brief we cited a case from the sixth circuit which is united states versus edwards in which the same statute was applied in two situation that involves threatening to repeat a person's car and so the question is whether this least of the a of spray painting a person's car entails force that would would be a crime of violence under this court and this is important but again you're you're applying a mathes approach have i think in this record you have evidence of injury to persons most definitely sure i would have there would be a basis for an element of conviction and support for an element i think that so the jury was instructed that this crime if it met the elements that it would be a crime of violence and i think from there you have to take a categorical approach to whether that prior conviction was a crime of violence and that instruction i think was instructional sort of i don't want to say instructional error because it was you know under the the law at the time that crime was not a crime of violence because we had her as a fargus and so it was a crime of violence under the residual cause only because there was probes argus so i why isn't it a crime of violence under nine twenty four c a c three a kidnapped which which  we it's more likely than not that the sentencing court relied on the residual klyde and that means you've got to convince us that it's not more likely than not that they that they relied on the fourth law on twenty fo and i think that the answer to that is under her as far as this at the time it would only have been a crime of violence under the residual cause i and can you explain that because predatory has said that if there was the language of causation of bodily injury you could at the time at that time not anymore obviously but at that time causation of bodily injury was not didn't tell necessarily violent force because  court's precedent said you could cause bodily injury by using the minimum force by indirect force by all the kinds of hypotheticals that you know that were have a lot of viability first of all the sentencing that's already been mentioned but when you take it out of the context of johnson in particular which sort of said certain things are not going to be illegal certain conduct i can really learn about that you will get more f three more broadly if a supreme court decision comes down says an element of a certain offense is no longer an element then you're still going to look well does the person satisfy that element or not there's not going to an actual innocence in that situation or if you have a lane apprenticing and you have procedural considerations like that that's not going to have actual innocence so i think there are a lot of things that f three is going to cover even where both were actual essence looks to fact or goes to the fact of the supreme court has said that certain facts are no longer you legal we are and morgan and i think our stance in morgan is that we're still basically preserving the arguments given that that salafist built potentially pending before the supreme court and that's what you said yourself a mental authority in this case yes yes and so we believe that if the court were to decide i'm not going to concede for the attorney i'm morgan but my i'm saying would be that our position would be if the court were to decide morgan that day that the person would in fact probably be actually innocent and you would have to decide for them but we would obviously ask the court to sort of wait until the supreme court make that final decision there given that the second circuit in barrett has now adopted the government's conduct approach and there is a circuit let i think it's pretty likely that the supreme court is going to address this question in the next term unless there are further questions on that i guess i would turn to whether or not the damaging property elements of the federal witness retaliation statute necessarily force the hill decision from the second circuit basically took the supreme court's critics johnson test of whether there's injure pain to someone and looked at was that going to mean in the context of property and said well it's going to be forces capable of causing injury to property damaging property endangering property of the same thing those words are synonyms and following the logic on tomorrow's you can't damage something without using force that's capable of damaging it again all appreciate your knowledge of all these recent cases but they are recent cases and we have to look again at what would then the fact of the law at the time that this conviction curre so i think looking back at that time you would have you would have the paris vargas analysis right at that point but the question is it in terms of this goes to the question of whether he's actually innocent or not because he's not going to be actually innocent if in fact now with the new law we find that in fact the that it does so categorically so you're actually innocent approach this sort of throws out that first issue of whether or not we should first look before we proceed to harms i think the two are interrelated here because whether he's going to be actually innocent or not you have to be innocent both under the residual clause and in a sense under the force of law and so  law at what time sure and so the two again are in a relay because a lot of the law that gives them the benefit has changed but so has the law that at the time would harm them has changed and so for the actual innocence the government's position would be you have to be actually innocent the entire time and the entire time not just now well if you're going to overcome that the timeliness if you i'm not sure how you can necessarily residual clause would have made him guilty at that particular you would concede that it's more likely than not he was sentenced under the residual i would concede that because of perez orders yes and and if that's the case doesn't he prevail here because we have salah that says that provision is unconstitutional if the problem would be that would be it would end up being homicide because the question isn't just is a residual clause invalid it is is he actually innocent under time twenty four c such that the time this can be overcome and he isn't actually innocent because he's still given the state of the law he's still guilty under the first under the force of arms so he's not actually innocent but you don't i mean you don't need to go to actual innocence if they can show that the error in the use of the residual cause wasn't harmless twenty to fifty five is it in hindsight it's plainly not in time so the only way you can overcome that timeliness is to show that he's actually innocent but now he's not actually innocent because the force clause means that his talk about that now if we move forward and we look at what what would be the applicable law time of sentencing then we're faced with math this way and when you stand that statute damage property without using force against the property of another this case will damn great painting the spray painting example that when we're talking about damaging property one the hill court said that injures property it's said that that in fact qualifies as damaging property injuring property and if if the test for force against property is injuring property and scraping certainly qualifies but that the the language of the two is co extensive if you think that you can fact not damage property without using force capable of it then anything is going to qualify for one when you force qualify for the witness retaliations that you own the property is going to meet one twenty four seize property clause in that circumstance if spray painting we're talking about working as property that's concerned with the victim again is the owner of that property and so if anything that's going to diminish the value of property property doesn't aphelion so we can ask if it's in pain we have to look anal injured and spray painting the property would in fact into the property but anything other than technical trust would be injury property i would think that anything that damages that would be i think injury and damage are the same thing and i think  property same thing here damaging property and while this court only talks about the property provision of it in a footnote of that provision when you're dealing with the categorical approach you're necessarily saying that every case every situation would fall under that is going to meet this clause and so you've said that injury to property necessarily meets one twenty four c here there's no difference between damaging property and therefore the witness retaliations that you would have to meet that i also think that even if you didn't want to go to the property provision of one twenty four c if you look at the elements of witness retaliation if you look at the fact that it's damaging someone's property and you're doing it because they're testifying or because they're giving in information in a proceeding that that's also inherently a threat against the person themself that look at what i did your property now look at what i'm going to do to you and so i don't think we even necessarily have to meet property provision because we can get there through the threat of force a person u nless the court has other questions asked and that included in the statute threat of force to person is included in the retaliation phrase that describes that image property threat of force the person is in one twenty four seeing right so  threatened use of physical force against person the one twenty four ok i thought you were putting it into you know and then so if you took damaging property of somebody because they're testifying or the like inherently you're threatening threatening the person themself as well you're not simply  threatening they're not so in summary you would argue i'm guessing that mr bowen does not prevail correct because when he does not prevail not because it's untimely but as you go forward in time and applied today's law he cannot prevail in some sense they're both related because part of the reason it's he would also lose because it's done timely because he has to show statute and going back as far as taylor we know that you can't look at the specific statutory language to determine whether a crime is a crime of violence the classic example is robbery a lot of the robberies in the country are crimes of violence or violent felonies a lot of them are not even if they have the same identical statutory language and so the key issue here is that there is a case that this that edwards from the sixth circuit where spray painting a car has been determined has been used to trigger the witness retaliation statute and then there was another case cited in our brief which was lender the lender rose gonzales from the fifth circuit which was it's an old case but it says that the act of stripping a car a criminal mischief type act would not even be a crime of violence under the residual clause so in other words back then the fifth circuit said something like criminal mischief was so minor that it wouldn't even qualify as a crime of violence under the residual clause and i think that's the key point here which is that under the government's reading they would sweep in types of crimes like vandalism criminal mischief and that was before us first junction where they defined force capable of causing physical pain or injury correct and you're talking about curtis johnson and i think that curtis johnson also provides some key language here which is stepping back from the specifics of the a global approach and looking at the backdrop of what congress was thinking when it passed th jungle says that you can't that you can't include crimes sorry that the congress was thinking that you can't include crimes that are quote comical missed that was the defined term a violent felony and i think the point our next case for argument is united states versus lopez