of the sentencing guidelines because it requires proof that the defendant act with an intent to inflict harm to kill to permanently disable or disfigure and thereby cause bodily injury and one cannot cause that kind of with read with the virginia crime of knowingly and willfully inflicting bodily injury on non prisoners in a correctional facility and that crime involved a specific intent to harm and as a result this court said that he knowingly and willfully inflicting bodily harm element squarely matches the force clause in the armed criminal act which is identical to the sentencing guidelines in that it requires force capable of causing physical pain or injury to another person that's the definition of violent force and johnson that holds true for that crime to virginia crime also it's true here and as a result you cannot simply look at the element therefore in that case it with assault with intent to murder assault might normally include something like on contests are on consent or offensive touching but when you add in the presence of the intent to murder that rendered the crime a violent crime those actually do involve island force i think kirby actually gives that very similar hypothetical the case the defendant posited a hypothetical about convincing someone to expose themselves to hazardous chemical s the court said that it is enough that the defendant acted to put the victim in the path of an inevitable force it's exactly what would happen if you tricked someone into back in their car out into the street so an oncoming vehicle would capable of producing that result holds true here and especially holds true or one actually tries to produce that result so it is our contention that the district court erred by holding that west virginia crime of unlawful wounding is not a crime of violence of your review of all of the cases that have been prosecuted under the statute we did that of the time we didn't have the benefit of reading the bigger brief might have been a little bit different if we'd had read before we filed the br s but we're trying to show that the hypotheticals that were used by the district court below are sirota possibilities but not realistic probabilities believe that the application of counseling as articulated in herby and even more so in the read case is improper because i think that it does not address all of the notation has to be given with respect to its application of the propriety of considering indirect force in light of councilman's clear holding or references that panel in some way do something of the thing and what has been set forth in those two published opinions if you if we got to accept that she is this where your argument should go are should you tell court has to ask in analyzing the statute is whether the breath of the statute necessarily encompasses that sort of force and i don't believe that it does because of the broadness of the statute and there's some differentiation between the statute in our case and these yes how do we get to where you want to go we only get there we only get there by acknowledging the rationale of the district court and that is through at the indirect use force and i'm but i would say that there are some other consideration harm in that case i think that you can interpret that case is not requiring any horse at all and i think that the west virginia and waffle when statute can have a similar effect is that case and i would draw to the court's attention the concept and well your honor i think that if you if you and duly harassed someone and they indeed let's say took it on themselves to commit suicide or attempt to commit suicide and that caused the injury you may do that with the intent to disable or kill them and i would point to prosecuted as a murderer did result as a murder this could be prosecuted as a front line charge or even as a lesser included offense if the person did not kill themselves and we're seeing that happen west virginia actually has a threat to commit a crime against a person and i think that we see now a realistic possibility of prosecutions in west virginia and it for harassment so i think that it is possible that this statute the unlawful winning statute could the court i can't address the court nor can the government what people are actually being charged with and the factual basis for charges because we don't know we only know the worst the worst cases the make it to the supreme court and those interpretations so i think that for that purpose the court has to take a broad not be consistent with congress's intent that violent recidivists punished more severely than other criminals the crime of unlawful warning which requires intentional infliction of injury upon another person is an