please let the the clerk know whether you've reserved any rebuttal time and also let us know when you begin oh call first case thank you if number fifteen forty one ninety two you united states of america versus carol king or argument not to exceed fifteen minutes per side mr ray for the justices of the six circuit court of appeals my name is nathan ray and i represent the defendant appellant earl king in the case before the court today with the course permission i would reserve five minutes of my time for rebuttal in two thousand the u s supreme court came out with taylor u s versus taylor it then followed it up with us versus shepherd and most recently it came out with us versus decamps basically what we're looking at and the question before the court today and why i started with those three because those three look at what information can we use in making a determination and under those cases specifically those cases dealt with what is a violent felony what we're dealing with here and what the issue is before the court today is what documents can we use to determine the other occasions portion of eighteen u s c section one twenty four and i talked to the start of that was the three cases that it did your honor because can we use in the course to where you know you understand these cases much better than i do but you start out with until you have the categorical approach you look at elements versus elements what is the elements of the convicting crime versus what is the elements of generic crime then you have  the documents as set forth in shepherd the jury instructions and things like that and look to the factual background of the case itself to make a determination in that case the course and look we're not going to do that because basically what you're doing is within each trial or within each case you're creating a mini trial because if you have a question of whether or not a case falls within or a conviction falls within any violent offense then you have all of this extraneous information and of course we're not going to do that in this case when we're talking about other occasions my position is your honor and i understand that in thomas in the footnote it said look we need to go beyond the shepherd documents in order to fully explore whether or not an act occurred on the occasions at work was how do you do it i think you i think you do it through the document as set forth and shepard and i think that that's why and you have you have thomas you came out in two thousand you have shopping to came out in two thousand and four and i think that this court now nice to look back at what was shepherd shepherd said look you can't go beyond the jury instruction you can't go beyond the plea agreement you can't go beyond  indictment you can't go beyond the transcript to plea quote colloquy and then they said the explicit factual findings by the trial drudged to which the defendant a senate so basically what you're looking at is a limited bit of  and there might be some cases where you don't have sufficient information based upon those documents to make a finding and so therefore they're under criminal act one apply but it doesn't mean that you create a mini trial is what the scamps said look we're not going to do for the violent offender act but there were other concerns were there in addition to the many trials they don't want to to have a long many trial seeking information from stale facts  question but wasn't there also a constitutional concern there was there was concern is as far as the system and see if the fourteenth amendment question becomes by bike by going beyond the elements and i think that this is kind of where the courts have gone with the with the of printed issue by going beyond the elements and you look into the facts of the case and the underlying facts of the case basically what you're doing is you're recreating the case of that's what we decide to do that's what this court decides to do for a district court and you can't do that and that's what the court said we're not going to allow you to recreate a factual background and that's what the course you can do and that's that's what they look to the statute itself one thousand u s c section one twenty four in the background of the case and if you look at taylor taylor was a very descriptive decision that started with a lengthy discussion of the statute itself in the background of the statute based upon that they came to the decision we're limiting ourselves we're limiting the pathetically you've got an indictment ok but it's pretty detailed in the indictment itself says that on january thirteenth at around four pm a particular agis the defendant robbed these two victims that that's what the indictment says and then you have another indictment that says on january thirteenth at around two o'clock at particular agis the defendant that this and you've got these two indictments the cases are both tried  in state court and the person is convicted of both can you use can you use that information from those indictments those separate documents and the other occasion yes my my my reading of the of the separate documents is just as with the court to specifically say we're going to allow you to use the indictments to make a determination but you have to remember in this case specifically this case you have you have three indictment think this may be which instance was getting at that there seems to be a constitutional dimension to this that has to do with having the jury find the facts that are leading to the enhanced sentence so and and part of the court's analysis is that when you're dealing with elements of an offense we know from the fact of conviction that the jury found at least those elements and that's why we look so closely at the elements of the offense to see if it's a generic form of the offense but arguably i don't know  these timing elements although when you need then you when you need notice in the indictment but but the question whether this happened to twenty four blossom lane or four twenty four blossom lane is not it doesn't matter to the conviction and the question whether it happened on this date or that day or at two o'clock or four o'clock it  doesn't really matter the jury would find you guilty either way you might plead guilty either way so what i'm getting at is can you even have an adequate separate even if it's in the indictment are you are you able to say or does the argument go to forward to say that look this is not an element of the offense and so under the court's analysis you  can mean you can never have a separate and adequate separate document unless the only way you can conclude you're through there are three different occasions is if you know what they are clearly separated by you know a years time where it would be such an extreme v go beyond the documents that were set forth and and obviously the u s supreme court hasn't has ruled on this is so you're kind of left to wonder and decide for yourself at this point in time but the rationale of the court of the u s supreme court course of we're not going to go beyond the element based offense are based evaluation which has limits the amount of information we're going to allow in and that's what you're going to be doing and i understand that there's there's there's a concern the constitutional concern of going beyond those documents one way it could be in the fleet colloquy but we don't know here why don't we know i'm not sure whether there was a oh good morning your honor and may please the court matt cronin for the united states this court should a firm the district court to terminations that the defendant qualified for the armed criminal enhancement and should do so on at least two different grounds first under the binding thomas decision courts are not limited to shepherd taylor analysis or shepherd taylor documents when making the inherently factual different occasions inquiry second even if courts were so limited the bills  particulars in this case qualify as shepherd taylor documents under this court's factors laid out in jones now before proceeding further i want to deal with two misconceptions that defense counsel brought up or is it came up during his argument the first is whether or four and there the court said the determination by district court that prior felony convictions exist and were committed on different occasions are so intimately related that the different occasions requirement of nine twenty four sufficiently comes with an exception a different context and integration contest raised the exact same arguments that the council the king raises here basically when a court is making a sentencing judge a factual determination that will result in a statutory enhancement the first issue whether it's limited shepherd taylor analysis the course said absolutely not we designed shepherd taylor analysis to look at elements not facts and struggled with the way you categorize that in your briefing because the cases that you're relying on call it a shepherd tell you or analysis right but the but the timing of those cases makes a difference the cases that you're relying on and many of them come before the the shepherd and before then to camp that gives us further instruction from the supreme court and that's what barber our analysis it seems to me that there is a distinction an important conceptual distinction between this the amend our as terrorists exception to a printer and what the courts are trying to do in the different occasions analysis what the latter looks to me is what can a court feasibly do and what do we want a sentencing court to be doing and there are clear practical problems that shepherd into camp both address directly with these courts holding many trials to try to figure out stale facts from many years ago it appears to me that they have made a legal decision that that's an inappropriate activity but for practical reasons for time reasons but also for constitutional reasons and memory of the other circuits locations test the way your opponent reads it why should we a dot your analysis that so differs from our sister circuits well your honor i think the reason is that the sixth circuit has got it right it got a right in thomas and and the newark and shepherd these are new are cases statements by the supreme court of what is appropriate and acceptable both from a constitutional and a practical means why doesn't about shepherd taylor in our different occasions difference between the armco collect emanation and the two different questions you have to ask and that's these two different questions or by mandate of congress the first is a purely legal question what are the underlying convictions i e using shepherd taylor analysis are the underlying crimes statutes that they have the elements that qualify for an armed criminal predicate and again purely legal question under the most recent case mathis you can even look at facts within shepherd taylor documents to make that decision it's a completely inappropriate they said you cannot do so the second question is completely different a purely factual question are there three or more  predicates that occur on occasions different from one another that's the language from the statute that question again you cannot answer looking at elements of a statute it's impossible and so you have to look at are the factors this court laid out in hill the time the place who are the victims but isn't the problem with the documents that you're looking into the question of whether the defendant has actually played to those facts you know if you're looking at the element of a crime as judge white said you know those were proven you know those were determined either by the jury or back pleading because you must do that to have a conviction but the things that you want to look to you don't have to have them for a conviction the time when this robbery occurred that's not and that's not a key to whether there is a conviction or not so the question becomes did a jury find it is a fact or did the honor you said that their number of circuits are in disagreement but what documents to rely on and i'll get to that in a moment if i can well about there we're in disagreement about whether the shepherd documents are a dividing line upon which the different occasions t park part and parcel of the prior conviction fact the courts are no way limited by apprentice when making those inherently factual terminations you don't have to do that now your honor to get to that whether or not  your honor the different occasions requirement of nine twenty four to be sufficiently comes with an exception in apprentice for profit conviction these are purely factual question not a legal question answering the question of what we can consider to make that  the intersection of two different doctrines yes your honor and if i may i think the language a neutral hand could be helpful to this court in ninja on two thousand and nine supreme court case so what again the court said there that is a wholly inappropriate way to determine facts and here's the quote supreme court said it developed the evidentiary list the sheppard taylor documents to which it points for a very different purpose namely to determine which saying there is listen we made the shipper to document the list of evidentiary list because these are all documents that have to include the elements in them and they're not going to obliterate the sentencing judge's otherwise plen authority to determine facts which is acceptable under bergen in the different occasions inquiry simply because we you ship are tailored documents determined elements for the first war first of two questions and the armed career criminal act and your honor besides the fact that there's this hill which is again after sheppard this court dealt allow the defendants including the hill defendant to testify and present facts to say listen these were not on different occasions these were simultaneous and allow defendants to put in this type of evidence so that the court's going to full and complete and accurate decision this court then by following king's regime would be obliterating that right of defendants to make that to put in that type of evidence and actually preventing them providing a full story for a factual determination to the court bear in mind your honor that the shipper taylor analysis the court has been the supreme court has been time and again stress eating the clear is for a legal analysis not a factual analysis sentencing judges day in and day out make factual analysis and factual terminations at sentencing and they're protected the defense are protected by various due process concerns and also that a court must find it by a preponderance but then we get back to the very issue that's been for us documents are sufficiently assured that that factual determinations can be made based on them and it seems to me that what the supreme court has been telling us is they either either have to be an element of which you are necessarily convicted and necessarily guilty in order to be convicted that's if you have a jury trial and if it's a it has to be a fact which is necessary to the determination if you began to bring in documents that the defendant had no reason to object to let's say you're taking a and your argument makes a reference to time frame there's no there there is no reason that there would be an objection to that if it is not necessary to the conviction yes your honor and that exactly why you can't limit a judge only to those documents what the defendant will you want to plenary trial no you want a district judge every time a district judge sentences to say ok defendant come on up here we're going to have you testify and then we're going go back and get the witnesses because i'm not sure you're telling the truth and then we're going to go back and get all the documents doesn't that defeat the whole purpose that the camp and shepherd have been created to show that we don't want to engage in that kind of process or some people are going to get an advantage from that some defendants in one case maybe is some defendant in another case going to have a disadvantage maybe but it's a bright line rule if i major answered question two parts one first this court has the supreme court has never said that the limitation should be solely on the documents and factual side again and again your honor just look at the cases it's a legal analysis it's what they said a neutral hon so they said we're not going to limit course these type of i'm out of time if i make a dress i had for i realize i forgot to address the second half of judge drenches question so in terms of your mention your honor that it would be unfair for courts to find facts based on a plea agreement or a sentencing  defended has no no reason to disagree with them and that's exactly right your honor and that's why the supreme court has said initial hand we can't limit a factual question to these documents because they're noticed documents or elements it would be a huge disadvantage to defendants inequitable potentially due process issue if this court says listen we're only going to rely on the facts that you just happen to agree to in a plea agreement that's why they sent the supreme court said no you can't look at facts period full stop we're looking at shepherd taylor documents for analysis you can only look at elements because the defendant won't care if he changes his opinion on certain facts that's why the court can't be limited to shepherd taylor documents it leaves this tremendous inequity to a defendant because if you don't allow a court to use its plen authority as it has for you i'm just struggling with it because the other way to eliminate that problem is to say a document like the one that your opposing counsel argue this bill o particulars is to not allow that to come in because then you don't have an argument against that defendant that that defendant is unable to defend against all you can put in the record are those the issue with that is that there are almost no elements that will listen a story facts for instance a date is not an element so that would that doesn't count there are almost no elements for any crime that would list the necessary facts so you first off you can't use dates the only can't crimes i'm aware of there was a place would be arson or burglary so that would be essentially abdicating this court's requirement it's mandate from congress to determine different occasions because unless it's an arson or a burglary conviction or happens to list the exact addresses you can't know and beyond that you're ghost again your honor the supreme court said you can't look at facts in a plea agreement to german shepherd taylor analysis it says that most recently in math of this is that is an equitable because we only care about elements here and a plea agreement that they cross you can put a number of facts in there all that matters is that for legal purposes is that the defendant admits to the elements the fence that's why neutral on the court said you can't limit course to shepparton or documents w impossible and shepparton documents will oftentimes not have the necessary information so the court to be abdicating its authority its requirement of congress to find these facts courts have been doing this day in and day out for years and you're right your honor there are sr circuits that say otherwise so as a practical matter it in you and you're right that's the question that i was asking before have you even assuming it is in the indictment i mean it's not it's not an element but as a practical matter judge gets a list of prior convictions and what ninety nine percent of the time you don't have three on the same day and  o but the court is relying on that and that type of determination comes within the exception for prior convictions and we just rely on the judicial qualitative difference is that it goes beyond the fact of the conviction because there's the fact of the three convictions and the indictments don't answer the question whether they were on separate occasions and so somebody has to make a determination and then you do start butting into the other line of cases what is your what are you real i know that these cases talk about not relying on facts so what is where what is the case that most supports coming to the conclusion that it doesn't matter that the result of your approach is that a judge is going back and looking at the actual facts of the commission of the prior offenses to determine whether they were on different occasions yes your honor and i will endeavor you my best to answer simply since i am out of time but as you noted is a complicated question i'd like to have time to give the best answer i can so here's the issue in terms of what th look to if you look to you know first there's thomas and again you're right shepherd to camps there later in time but so is an issue on which says listen you're not you're not the courts are not limited to making a factual determination when making this type  the key we emphasize is elements not facts and again an issue and they said you can't limit it to shepherd taylor documents in a case where you have to make a factual increase because it's going to a bad job and indictment is a notice document no fact in there has any legal effect it's only designed to tell the defendant the elements of the offense to which he has been charged by grand jury so and again the date as you know your honor is not an element and so beyond that your honor in terms of what the case is to look to bergen where the defendant could at mit those he could make it a mission your honor but again he could admit those facts what the supreme court said and that's why these cases ultimately go in favor of our position in court said they're not going to care wh because they're admitting to a plea to get a certain type of a deal as with the supreme court cares about and so i mean it's a defendant could make some any kind of admission is court says and it is something that has to be suspect which is why sentencing judges need to have the the ability to look further than notice documents and elements focus dockets making that determination that's the default rule in this country under all jurisdictions shepparton analysis is an exception for a legal analysis in terms of your honor what when it's butting against the sentencing in other words you don't need the jury to decide but you you you still run into the question what can you look yes or are ultimately just to conclude with this the defendant would need this court to do to reach the station he wants would be what we see out of the out of the u s supreme court in his decisions starting with taylor coming now is a consistency and i know that and i said it in my brief when i started out with this that the decisions that we're talking about deal with the elements of the facts but there's a consistency in the application of how we get to those elements if you're limited to a certain number of documents that allows you to look to the elements of what the government has argued here today is that we're going to go beyond that in other words and as it is i think the court has has indicated we're going to create many trials we're going to allow the government to bring in witnesses we're going to allow the defendant to testify we're going to and in this case i think the convictions going back twenty or thirty years i mean it's a lone ways back and and that's the look back that we're we're looking at and i don't and the u s supreme court in this consistent application of what are we going to look at has been across the board saying look you can look at judicial documents you can look at the transcripts that's where we're going to go any farther than that and they had the opportunity to scamper to go look we're going to we're going to do a factual could that be part of the felon in possession trial where within the felon in possession trial you also try the issue of whether the defendant has three prior violent felonies on separate occasions it's a factual determination judge on behalf of and i'm just talking to you right now on behalf of the defendant i would hate to see that happen because all of a sudden you're bringing everything bad that that happened in the past you haven't you haven't you have that you're going  trials within one because you have a trial for that for the not twenty four then you have in the trial for the three previous convictions to three robberies and it becomes the supreme court a thing we need to do and then have the jury make those  i don't think so i don't think that's where the court is going and i think the i'm sorry that's and i don't think that that's why we go beyond the documents that we have because if we're doing that even if we created a mini trial that the government  that michelson just said and that the the judge the sentencing judge is the one who decides whether these were on three different occasions and and then ultimately you get to the question of what you can look at but it's not in the fit because the other is an element analysis and the timing just isn't an element i understand that but what the court has done it has limited what documents can come in and i think that that's what in other words this court could throw open the door say look we're going to we're going to allow a factual base to terminations to determine whether or not there was the three convictions were other occasions but i don't think that's what the u s supreme court is trying to do by limiting the cia in other words you have limited amount of documents under the a c a to make a determination of the elements in jones case that recently came out dealing with  the residual clause it's limiting the a c c a it said look this residual clause is unduly veg and so we're going to strike it now the words what they're doing is they're not expanding what can be done they're limiting what can be done and i don't think that this court would specifically need over rule thomas or or the other cases because what the court can do is look at an intervening case because thomas came out in today's two thousand u supreme court and separate came out of two thousand and four this court can look to the u s supreme court decision and say look there's an intervening supreme court case law that came out and therefore we can we can base our decision on the u s supreme court as opposed to strictly relying on us versus thomas the other kate the cook the cases closest to came out of this case most recently in two thousand and fourteen was barbour it was the course suggested that that a reevaluati of thomas was appropriate for consideration and that i believe why we're here but in barber it had the court look to the element or strike that factual determination in that case they said look we can't make the determination based on what's in front of us the documents front of us therefore he's not going to be an a c c hey he's not a that five year fifteen year mandatory doesn't apply there's going to be those cases where you can't the  documents are ambiguous then there's no enhancement exactly everybody knows what the playing field is and everybody has to play on the same field and i think that that's what the role of this court is is to give everybody notice this is the this is the rules this is what you go