because mr harrison's a c c a sentence is a legal one that sentences first imposed in two thousand and eleven the district court found that his two prior convictions for oklahoma domestic abuse assault and battery qualified as violent felonies by relying on the residual clause now that the residual cause has been held unconstitutional those convictions no longer constitute violent felonies in the a c c it doesn't apply if we could tell from the sentencing record that the sentencing court relied on both the residual clause and the elements clause would you agree that that your client would not prevail we don't have to reach that question here because it's not clear from the record that that's what the district court is doing and you know while the district court heard arguments regarding both clauses he never actually says which one he's relying upon and there's actually several reasons to think that he didn't rely on the force clause first the district mr harrison actually what is the objection to the force clause regarding violent force versus touching the government never countered that objection and that all makes sense in light of the relevant background legal environment which clearly shows that the conviction couldn't have qualified under the force clause the court does refer to the elements of the crime in its ruling and it also cites quotes from both the elements clause and the not just to go through one by one first with respect to his reference the elements of the crime that really doesn't narrow things down at all if he had relied on the residual cause he would have just as well had to look to the elements of the crime in order to tell whether qualified second you know the fact that he cites both of the clauses also i don't think narrow things down at all because you know that's the whole section one t you know one two and then sorry what was the third part well the court specifically says in terms of an analysis of the elements of yes as i said you know that doesn't actually narrow things down because residual clause also required that analysis and then just to go back to the sentencing record i think the fact that the government doesn't object to mr harrison's argument that the forced cost couldn't apply because the convictions only require touching actually suggests that the district court did rely on the residual clause as the government said you know whether or not this is a violent violent crime requires violent force it would qualify under the residual clause and that is the analysis that makes the most sense given the background legal environment just a month before mr harrison with sentence this court plainly held in smith that oklahoma's on battery doesn't require violent force and therefore doesn't constitute a violent felony under the force cause but could under the residual clause so given th pretty clear the district court wasn't aware of that case but that doesn't really matter to our analysis does it or does it mean because a district court was considering both clauses clearly seem to be contemplating both so it seems to me could not have been aware of the smith case and it was pretty recent at that point does that matter you know i don't think it matters because under snyder if the record is not clear then we just looked at the back and legal environment as this court said in snyder you know while that we characterize this as a factual finding it's primarily one that rests on legal questions right and so given that you can't clearly say from the record that he relied on the residual clause we look to the background legal environment and we stop looking at the underlying record at that point defense counsel didn't cite smith by name he did cite the legal principle articulated in smith by saying you know hey this conviction doesn't require violence it only requires touching and so given this background legal environment we can say that it's more likely than not that the trial court relied on the residual clause and that the sentence therefore is infected with johnson error so then we will proceed to the second step of the analysis and ask was that error harmless and here it wasn't harmless without the residual clause there can battery doesn't require violent force and therefore doesn't constitute a violent felony under the force clause and that follows directly from the oklahoma court of criminal appeals decision in steel versus state where the state highest criminal court held in a reasoned published decision that oklahoma's on battery doesn't require violent force because it follows the common law and therefore can be satisfied with just the slightest touching does it change if we include assault in addition to battery no your honor it doesn't first you know i just point out steel actually does concert an assault and battery conviction is for that reason that this court has repeatedly held that oklahoma you know quote assault and battery convictions don't satisfy the more than the slightest touching in order you know to sustain a conviction so whether or not we consider this crime to be simply battery or you know assault and battery it doesn't require violent force and doesn't satisfy the force cla cannot carry his birth right but i'm talking not the leak backroom legal environment let's say i look at what the court said at sentencing and i can't tell for sure what the sentencing court relied on here how does that well you know one thing about it it's just i think the background legal environment can be instructed by what the district court says because ultimately this is a question of fact what the district court say at the time no nothing then obviously there's nothing to inform there's no nothing to back an ad but here the district court did say something it said something because the defendant actually raised this issue mr harrison points that a domestic abuse would have the same powder keg type experience type background in addition to that smith did not specifically address addressed battery on a police officer which would get into more the merits question about assault but looking strictly the jurisdiction to go back to the background legal environment and why i think that plays into what the court said the background legal environment here was james it was psychs and what the court said it wasn't just some amorphous test that if it doesn't fall under the elements cause then it must follow the residual clause the supreme court had laid cause and there was no discussion anywhere in the record about sites about james about comparison to the enumerated and squads there was an objection to the p s r there was the probation office saying to the extent there's a question there's also the residual plots but there was no suggestion on how the residual clause would be satisfied and then finally in response in its holding the  that doesn't really mean anything because the residual clause would require i mean they would have to do the same categorical analysis and look at the elements so why does that mean anything in terms of what the court ultimately decided where this came within which clause it came to because what the of the crime which and and how those ultimately end up in the ordinary case just because it might not fall within the elements you look to what the ordinary says and compare as far as the residual clause when at the time you compare solely on the residual clause and the defendant has not met that burden here in light of the record in light of the background legal environment but even if this court were to conclude that the senate has met his burden well before you move on to that i'm sorry i just have to explore what you mean by bone i mean essentially are you arguing that if you read the record you will come to the conclusion that the judge relied both as independent assault the oklahoma legislature and title twenty one section six forty one defined an assault as the unlawful and willful attempt or offer with force or violence to do a corporal hurt the legislature did not define what to call her was but title twenty five section one of the oklahoma statutes tells courts to give an undefined term not its common law meeting but the plain ordinary meaning the court of criminal in this case has interpreted that as meaning the dictionary definition looking at the dictionary choral means of the body hurt means pain or injury this is confirmed by other cases by the court of criminal appeal then the term violent injury because assault requires an attempted attempt to injure and because an assault and battery requires an assault then an assault and battery must require an attempt to injure counsel had referenced still the state and while still was a assault and battery case i would suggest this court needs to pay attention to the precise language the seal court use still did not say assault and battery or that assault is satisfied by the slightest touching of these tempted such as what steele said is that the force quote the force or violence element a battery can be satisfied by the slightest touching and it's that force or violence language not the hurt language that steele was addressing it's hard to imagine that the force necessary is different for an assault and battery when an assault culminates in a battery if you you know i mean it's really an on realized battery when you  sixteen but they were just be stopped and so if a person throws a slug tries to hit somebody and this is prevented from doing so that would still be an assault if they graze them and barely touched them that might be an assault and battery but that still was an attempt to use for violent physical force and i would suggest that the at the end of the day the oklahoma case is very this out even if this court were to accept the defendant's argument with regard to steal this court recently in united states you explain that what the court does is more important than what the court's that is every case that address is assault and battery in any form in oklahoma which the court of criminal appeals has affirmed has required being a grabbing something along those lines and what this court s immaterial and what this court said is but when we look at how new mexico actually applies the statute it differentiates between actual violent force and nonviolent force at the end of the day what the defendant has asked this court to do essentially is say that it would be eight felony violent felony domestic abuse for kids sitting in the backseat who live together on a long road trip say i'm going to touch you i'm going to touch you tap that's a crime according to the defendant and there is nothing in the record in oklahoma and oklahoma law or an oklahoma law that would suggest that would be a crime of domestic abuse assault and battery the governor would ask this court if it reaches the merits question not to apply judicial imagination but instead to look at what the kids to say and to apply a reasonable interpretation oklahoma law if there are no further questions thank you i'd just like to spawn to a few of the points made by the governments council a first you know i think in the context of the records not silent it is ambiguous and for purposes of snyder that lack of clarity is sufficient to get us to the background legal environment and second you know he commented on the fact that the conviction smith involved in assault and battery on a police officer you know i don't think that makes a difference here because the most important smith is that it clearly the most important thing about smith is that clearly precludes the district court from relying on the force clause leaving the residual clauses the only option to go to the corporal hurt argument so the legislature's use of the phrase corporal hart doesn't super city supersede steelman can't first you know that statutory definition precedes steel and so if there was any merit to the government's argument then steel would have come out a different way but it doesn't and then  you know steele clearly states that oklahoma follows the common law with assault and battery and that's actually consistent with the statutory definition as this core recognized inmates and the common law the phrase corporal hurt included the merest touching  and you know it's also consistent again i mean this is all in the briefs but the oklahoma jury instructions divine force to me in just a slightest touching for assault as well as battery going to the point about this court's decision in garcia and whether there's a realistic probability that the statute could be applied to cover nonviolent force c s distinguishable for a number of reasons most importantly steel is unequivocal in holding that you don't need violence in order to have a conviction for oklahoma battery and that's why this court has repeatedly held that oklahoma's on battery convictions don't satisfy the force clause the other thing that's really important to note is that unlike with the new mexico robbery conviction addition garcia there aren't any lower court convictions or decisions vacating convictions for lack of force so there's really no basis for concluding that anybody that a court would they  domestic violence conviction for lack of force and as this court set a mason even if most cases do in fact involve force that doesn't mean it satisfies the force clause and last point is just you know regarding the oklahoma laws decision to cover nonviolent force i mean as a supreme court recognizing castleman there's actually a reason that in the domestic violence context statutes are written broadly in order to cover nonviolent force and that's because legislatures have sometimes made that the judgment that this is a particularly harmful context in which nonviolent force should be criminalized as well as violent force and so i think with all of that i just want to conclude by saying you know the johnson era heard in this case there wasn't