noted that sheppard stricture about what documents can be viewed and what portions of documents can be viewed in determining what constituted the defendant's private prior conviction noted the fundamental imperative that the court maintain absolute fidelity to the protections of the individual afforded by the notice trial by jury and beyond a reasonable doubt requirements those are fundamental constitutional rights and as tempting as it is to try and glean information from here and there and other places to inform what the predicate offense really is that's something courts cannot do and the district court erred in mr philips case in doing there are three documents in question as far as mr philips prior conviction the indictment under tennessee rule eleven a defendant may plead guilty to a lesser included offense or a related offense this is different than the federal role and so while he's indicted for a sex offense he's convicted of aggravated assault that indictment under this circuit's holding environment there cannot be used as a sheppard document because it's not even in the idea of a lesser included offense where you have shared elements we don't have that here in tennessee we don't have that and mr philips case the other circuits the eleventh and spell the fifth and turner in the tenth and scoville all of those circuits were saying no if you plead to a different offense than the indictment you cannot use the indictment as a shepherd document those are all concerning lesser included offenses here in mr phillips case with this plea in tennessee he has a much broader range of offenses he could have pled guilty to and thus a broader range of elements he could have pled guilty to the police colloquy the court's use of it is further cabined because not only is it a guilty plea it's a guilty plea pursuant to alford so under th still good portion of mcmurry you can't look to what facts the definitive method you can look to the elements however in mr philips case the elements listed by the his guilty plea and compassed more than one subsection of the tennessee aggravated assault statute he that was sort of covering mens rea and all sort of possible permutations  and then that leads us to the judgment which is not and should not be a shepherd document this court has recognized it as a shepherd document however the supreme court has never recognized the judgment as a shepherd document especially in mr philips case where you have a document that's partially typewritten and partially handwritten the typed portion of the judgment says aggravated assault somebody at some point we don't know where and rode in weapon and so this is not one of those documents where everybody is present in the room where and when it's completed or everybody is necessarily in the room when it's completed or it's necessarily adopted by the defendant it is an administrative document that clearly in mr phillips case was not all filled out at the same time and we would say that that takes away from it's reliability and its use as a shepherd document signed by the judge there is a signature by the judge it's ignition old even by defense counsel however it's not clear in the document whether that signature or even by defense counsel happened before or after the word weapon was added to the line that said act crime of conviction aggravated assault and so we just don't know and that uncertainty takes away from the weight of that evidence of that document being used as sheppard document it should not be used in general but in specifically in mr philips case it should not be  what shepard never talked about the judgment as a separate document that talked about how is that against the rationale of shepherd i guess as you say shepherd it talks about using an indictment when a defendant has pled guilty to that indictment the jury like the judgment is the ultimate disposition of it not necessarily your honor just because when if somebody is pleading guilty t reflect what the person actually play it to so why wouldn't that be appropriate if the shepherd because the judgment is not necessarily prepared at the time that the defendant enter to what elements the defendant is admitting their guilt or what facts that the defendant assented to mr phillips case that was at most some assaultive behavior happened  which is not enough to be a shepherd to show what portion of the aggravated assault statute mr phillips was convicted under the judgment is not something that  like i said it's not necessarily fully completed at the time of the defense counsel signature it's prepared it's probably prepared in court but again in mr phillips case you have this odd situation where it's partly typewritten and partly handwritten but it's going to reflect the ultimate disposition is of that it ought to there are have been errors of we've seen and the king case which a on occasions different case out of the circuit where you have the dates of offense on the judgment differing from the dates of offense on the indictment it is not a perfect document it is not necessarily a reliable document as would a pled to indictment or the plea colloquy itself or portions of the and so it mr phillips case what we're left with is mostly a general idea that he was convicted under this aggravated assault statute and not all subsections of that statute qualify as violent felonies for the purpose of the arm criminal act and so to find that it did qualify as a predicate and then apply the sentencing in hansoms of the arm for a criminal act was an air does it make a difference to the weapon part of the judgment is handwritten rather than typed and if so why it does your honor because some portions of the aggravated assault statute refer specifically to a weapon and some do not and so i'm talking about the handwritten notation that it was handwritten it does matter because you you don't we don't know when that was written and was that written in immediately before defense counsel viewed it and have the opportunity to say well that's not actually what he pled to this document isn't accurate or was everybody there in court they signed off on a document and later in the day the clerk was like you know this maybe should say weapon let me write it in we don't know and it's just suspect and out of the norm to have a dock document like this that this court would like to place great weight on that is not obviously prepared all at the same time that is not necessarily every all parties being able to view it and make corrections but you know the fact that part of it is written in part of a tight i'm not sure that bad really  makes a kind of dispositive difference because you could have some of it's occurring at one time and then later in typed in typewritten phone and then later on he picked up to that by also typing that seems to be b s the section that really didn't carry much should not care much weight i think the difference though in the type well it's one reason why judgments should not be used to shepherd documents is because your honor is right that maybe they could have just put it back through a typewriter and added the weapons statement but here it's just very much more clear that this is not a document that's necessarily completed contemporaneously or in fully completed prior to review by defense counsel whereas an indictment plea colloquy in the case of a jury trial the jury's instruct the verdict form all of those things the defendant and true counsel has an opportunity to correct to say that that does not you know that's not what i admitted or that was not what i was found guilty of but here in this case when you have a judgment that obviously not prepared in one fell swoop that that illustrates a problem with using a judgment because we do not know when the site the notation of weapon was  good morning may it please the court bill roache for the united states defendant was rightly sentenced as an arm career criminal because his to his two thousand and nine conviction for tennessee aggravated assault categorically qualifies as a violent felony under the arm current criminal acts use of force clause this court has held that on numerous occasions in both published and unpublished opinions so the variant under which defendant was convicted the intentional knowing deadly weapon variant that has been n is considered a violent felony under the arm of her criminal act this court recently held as much in davis versus the united states and holland versus you know the united states which we brought to this court's opinion  eight j letter so as a didn't know legal issue whether tennessee aggravated assault the variant under which defendant was convicted whether that is a violent felony has already been decided by the by th so those opinions are controlling on the legal issue of whether that particular felony qualifies as a violent felony that issue is which subsection he is convicted of aggravated assault under tennessee are not what he was convicted of and that's what we're trying to do years figure out what subsection he was convicted of that's right your honor and all that what's what's your best evidence that he's convicted of subsection that is violent well just in just to address the first part of the question on the aggravated assault variance we are arguing in the district court judge we think rightly found that the defendant was convicted of the a one variant  and so what's your evidence that he's convicted under a one ok so the evidence here in the sheppard documents we have the the best evidence is the police in addition to the judge those two documents read together which the district court this report did that here did this report prefer performed a very thorough analysis of those shepherd documents this is a case where the shepherd documents are very  when you plead guilty to something that you're not indicted for originally you know it's not your honor to the contrary this court just recently held in davis versus the united states that an indictment charging him or serious offense is a proper shekel shephard believe that was a judge given written opinion so yes but importantly here your honor so the indictment is proper but here the court barely looked to the indictment the court relied on the  colloquy in which the state court judge very clearly set out the elements of tennessee aggravated assault he said intentionally knowingly or recklessly committing going to salt using a deadly weapon that matches the elements words while not word for word but essentially word for word of the tennessee aggravated assault statute now we take the plea colloquy we take a judge who has relied on that you say supports the conviction under colloquy in addition to the judgment which memorializes the elements that the judge set forth in the plea colloquy and asked the defendant or instead told the defendant these are the elements to which you are pleading an appropriate ship docket yes or a couple fails first i would to discourse pressure that ed it's exceedingly clear that this court has always relied on judgments as quintessential shepherd documents united states versus more davis versus united states united states versus acts united states versus sosa united states versus armstead this has never been an issue in this court judgments are the exact type of shepherd documents that a court can rely on now it's never been an issue or it's never been before the supreme court most likely because it's never actually been an issue an issue that needs to be litigated my colleague mentioned this court case in united states versus murray that talked about certain police transcripts not being reliable as shepherd documents well the answer to that is the supreme court change scamps so the supreme court says instead of looking at the facts underlying the crime and we need to do is look at the elements well that provides even further support than a judgment is not only a shepherd document but perhaps the best shepherd docking we have especially when the judgment sets forth the this section of the statute and in addition it classifies the felony so here's the judgment not only did it did it say what  what offense defend it was pleading guilty to it also said class d felony which exactly in tennessee matches aggravated assault under the a one variant which is you know every sheppard documentary that we have they all add up to the fact that defendant pled guilty to that variant of aggravated assault now further what i would also argue is that given the district court's factual findings with respect to the shepherd documents we would we would submit it as we submit it in our brief that is the factual finding that this court should review for clear air so when a district court judge is reviewing shepherd documents and making factual findings of what defense defendant pleaded guilty to that by the way that the district court did a very thorough job here pages two thirty forty two fifty one of the record analyzing all the shepherd documents trying to figure out which offense it was the defendant pleaded guilty to preponderance of the evidence and as i stated the shepherd documents here clearly do show the offense to which defendant has pleaded guilty and so reviewing that reviewing the judge's factual findings here for clear error we don't think that any mistake has been made much much less an obvious and obvious mistake that would that would strike this court is as something that was a clear error by the district court police you're used in the trial judge statements that allowed well not just the trial judge statements here i'm using i'm using the fact that the judge explained to the defendant what he was agreeing to plead guilty to and then the defendant assent to plead guilty to the elements of the judge laid out now the district attorney general set forth the the facts that she would have introduced a trial which were in support of the aggravated rape defendant didn't agreed to plead guilty to those facts the district attorney general just put those in the record and the judge said i understand that what you would like to do here is plead guilty to a lesser included offen aggravated assault with a deadly weapon the judge then said here's what the state would have to prove to convict you of that offense and the judge read out the elements of aggravated assault with a deadly weapon asked defendant if that's what he was pleading guilty to defend it said yes now we have you know after that we have the judgment that memorializes that offense about the written notation is somewhat unreliable we don't know when that was added that  in tennessee i have seen judgments where the offenses handwritten it does happen i don't think that there's the defendant hasn't pointed to any any nefarious actions that are going on here i mean the judge signed the document and so using the handwritten notation is not enough to to to discredit this judge let out the can anyway in the district court judge of course all the same judgment compared the judgment and the and and did determine that defendant here pleaded guilty to the a one b version of it would be variant of tennessee aggravated assault which this court has held on countless occasions  the child to a custodian who has a duty to protect the child and fails on that duty would be an aggravated assault and then the c variant is someone who is under an order  restraining order who violates a restrictive or restraining order there's absolutely nothing in the record that would lead this court to question the district court's findings here that the defendant was convicted of the a one b look at the that and we separate documents we just have to look at the elements that the well if the statutes divisible your honor so so under the modified can oracle approached the court could look at certain shepherd documents to see which word we're not we're not looking at facts anymore shepherd documents we're looking to determine which subsection he's convicted which elements i mean we look for elements rather than facts right yes your honor but under the that's right counterintuitive ok certainly categorical approach has been criticized and can lead to some confusion although here your honor this is a case where there is no confusion the shephard documents here are very clear the district court judge thoroughly reviewed those shepherd documents heard arguments from both the defendant and the united states and came to a reasoned decision and conclusion that is supported by the facts that defendant did plead guilty to and was convicted of the a one variant and because of that we would ask the district court we would as this court excuse me your honor to affirm the district court's decision  the difference between davis versus the united states and mr phillips case is in davis davis went to trial on his predicate offenses shepherd documents indicated that the judge had heard evidence testimony and evidence before convicting him of aggravated assault so and also the indictment that did not match the conviction and davis's case had been amended that at some point they had written in were not proceeding on attempted murder were proceeding on an active area of aggravated assault so that takes davis or takes mr phillips outside of the purview of davis in that he pled guilty which under tennessee rule l n does not have to be a lesser included offense it can also be a related offense and i would respectfully say i have i took a quick look at the plea colloquy again the judge never said  that mr phillips is pleading guilty to a lesser included offense talks about what offense he's pleading guilty to but then do not appear to have referred to it as a lesser included offense if the judge if the district court used the wrong sheppard documents or used portion of the sheppard documents that were in permissible to be used in making this determination that is a legal error that is not a factual error it's a legal error and what we have in mister philip's case is that that what we the court can look at within the shepherd documents does not definitively decide which subsection of the aggravated assault statute he was convicted under it's not just an issue of let's find this out by ruling things out piecemeal it's what we can look at in this your philips shepard documents does not definitively identify which subsection  tell me why the police statements by the judge indicate that this is a one b i mean they the other side says it's clear the judge is asking if you're pleading and list the elements of one b violent act right correct your honor oh i will judge just specifies a understand i'm pleading to it why why is that enough i don't know your honor if if this court is to find that it is a subsection and whether it might be knowing or might be reckless if we get into the recklessness debate we get into the the home fair we harper or michigan us that you know i think is wrong especially given considerations that they're reckless driving offenses that fall under reckless aggravated assault but you're saying that the elements that he the judge recited under a could could be nonviolent is that yes ok so it's not dispositive ok yes and then i was to the judgment you say that because it's handwritten if it were not handwritten it would typed in gun would that be or not if it were typed in that you know aggravated assault weapon all of that type in my position would still be a judgment cannot be a shepherd document ever ever  mean why why why not again because he didn't necessarily can consent to the judgment and it's his consent he's not necessarily in the courtroom when that judgment is for parents in this case we have an attorney signature we don't always have an attorney signature it is not that comparable legal record on par with a pled to indictment or