is not a crime of violence second because procedural error occurred when the court relied on disputed charge kind without affording mr chapala hearing and third when the court found that the factually disputed obstruction of justice and hanson applied without resolving the dispute or making the explicit findings required by rule thirty two should meet with her back to decide this case i'm sorry should we wait for to decide this case well i was anticipating that question and the supreme court's higher than we are as you know and they just had an argument on nat and they seem to want to address  that are before this court is if they simply decide that johnson too is is not retroactive to cases and collateral review and i accept the government really didn't want to talk about it in the supreme court went to a point of didn't they get like an am a kiss from a university chicago professor something because they wanted to talk about it that's that's all true your honor but i do think that at the argument one of the i think it might have been just ginsburg and i'm not sure about that did civically raise the question why don't we if we decide this and retroactivity grounds we don't need to really reach these other issues doing so obviously i'm not the i don't know what the supreme court is well it seems on chance and after they decided johnson it's up ended a lot of things that are going on and they since have granted cert there's a case where i  and then there's back calls and it seems to be that everyone wants to say that the johnson rationale in their place to the guidelines applies to other sections that aren't included in johnson and the supreme court either wants to say it applies to the whole world or we meant what we said in johnson and it only applies to that you know that that particular section so i you know and i just i it's it's teed up i'm just wondering why do i want to guess what they're going to say when what they say might make might tell us the answer well it's certainly could i mean if there are ways they could decide the decision i'm just pointing out that it's also possible that the i had a couple other issues not related i mean they couldn't address those issues right you know and because i think i do think they're extremely important issues and ones that independently justify vacating the sense the first these incidents of domestic violence and they were pretty explosive allegations the defense specifically disputed the accuracy of those incidents both of supplemental sentencing memorandum and at the hearing and mr powell himself and his allocution directly denied that they occur unfortunately what happened was that the district court clearly focused on these incidents i mean the first thing that comes up when they're talking about his criminal history this isn't any are twenty three the just says well i'm focusing on paragraph seventy two which is the first of the incidents of i'm charged conduct well now in his his work his domestic violence was not considered in the criminal history computation was it no it wasn't and that's what that's what the problem is that it wasn't considered in it shouldn't have been considered because it was in a conviction the problem was that the district court clearly believed that that these things occurred i mean he specifically says when he's talking to mr powell he doesn't say well there are these allegations he says you threaten these i'm not quoting exactly but essentially says you threaten these women and then he starts reading from the pre sentence report which of course the pre sentence so then it starts coming out because he tried to get what women in his life to take credit for to take the fall for and then he was same alighted an obstruction a thing and then the evidence then they said they started discussing that evidence and it just sort of mushroom but i'm wondering did the probation officer or did the probation officer the government anyone say that the domestic violence arrests cite that as justification for the upward departure from the guidelines no then that's not the contention the contention is that the court did focus on these issues these domestic violence issues and rather than affording mr powell hearing and she even though the defense specifically said if the court's going to be talking about these things we should have a hearing on them and even this we hear a lot of things but then if we don't base our decision on it i mean it's pretty frequent that court tara lot of thanks and they say well but i'm not going to make my decision based on that and that's well and that's certainly true and i'm not suggesting that every time there's some random comment we need to you know run up the flagpole and have a big big hearing but this is not their case this is a case in which it is absolutely clear if you read the whole sentencing transcript ok so o the remedy would be to remain in for a sentencing in which the defense would have the opportunity to the government would have to show that these these incidents did occur and the defense would have an opportunity to defend me give me can you just clarify one thing for me when the judge said the guideline range was that i wrote it down here seventy seven to ninety six correct right and he opposed t statutory correction or did he give an explanation of precise explanation for why he went up well he gave an explanation but it's frankly it's a little difficult to understand exactly what the explanation was we basically said you know i'm a father and sat around and then he said you know i've got to protect i've got to protect the public wasn't referring to his total criminal record he was referring to his total criminal record but were lying on that domestic violence stuff i was just relying on his criminal record and he merits a one hundred twenty month sentence well in that case i would we've also argued in our brief that it would be  then we would at least have clarification as to what he actually meant when he impose a sentence but my position would be that the defense is entitled to a hearing i rely on them anyway well then what well the then one then then we we would have to consider whether or not in fact it i reasonable to impose such in extreme sentence  i can discuss is his record he had a second degree manslaughter conviction second degree manslaughter is negligent homicide it's not it's not even reckless it's it's the state of mind is is negligence so he had that crime he had some drug crimes he had some other crimes he had a significant criminal history but was in a particular there were the only other the big violent crime was the second degree robbery which resulted in  good morning runners may it please the court any until miller for the united states i think this court should hold for the decision and battles hold this its decision in this case for the sit in and because because there is a possibility beccles will come out in a way that doesn't resolve the issue about the crime of violence in this case but there's also a possibility that it will resolve that i think it would make sense and depending potentially on how beccles comes out to take supplemental briefing because i think that your sister circuits which have decided that the enumerated offenses no longer state crimes of violence under guideline for b one point two are wrong i'll say briefly why i think they're wrong but then i'll move on to the domestic allegation well if at the time there wasn't an objection robbery being a crime of violence right correct you know we if we did it right now we'd have to review for plane air right that's right i think you would also have to review a plane or a later for two independent reasons one mr powell was sentenced after johnson was decided and so this case is the single for the unpublished decision intake that council  cited in twenty eight j later earlier this week powell or excuse me johnson two was decided at the end of june twenty fifteen was sentenced at the end of july twenty fifteen second mr powell has conceded in his brief that the standard of review is playing error and he is bound by that concession here ok ok just very briefly why i think that your sister circuits are wrong one i think that there interpret their conclusion that the  four b one point two depend on the residual cause of the guideline is wrong because it's inconsistent with stinson which says that the guideline for b one point two is is a binding interpretation of the phrase crime of violence in an application note is an interpretation of the phrase crime of violence it's not an interpretation of the phrase or it's not an interpretation of the residual cause this court's decision in grand walk bears that out this court would have to sit on bond to reverse sixteen and had a list of enumerated offenses in one thousand nine hundred nine it was amended and it was based on acas definition of a crime of violence but it kept the list of numerated offenses which shows that that list is not an interpretation of the guideline provision but as a freestanding assertion of the sentencing commission's power to say what crime of violence means secondly those sister circuits are that theory started out analyzing forty two point one straight up this is a case where the defendant was actually sentenced under two k two point one which says that a crime of violence means the guideline and application one the commentary to touquet incorporates not just the guideline but the application of it so to k two point one is like two l in that there's no definition in the guideline it's simply a reference to a list or in the case of two l and in the case of two k it's a reference to a list plus the application started to be guideline plus the application  it's also the case that there are other guideline provisions that refer to the guideline but not the application in b one b two which suggests that the commission thinks it has free standing force right i'll address the domestic violence question thank you i think it is it is true that the court referred to the domestic violence allegations twice but it is an unfair characterization the sentencing transcript to say that the court focused on that page fifty nine of our brief cites nine different pages in the transcript where the court talked about palace criminal history without mentioning those allegations the best example is page twenty nine of the e r the court says i can do a staccato i can cross a river with of his crimes almost day by day after the two thousand and thirteen arrest and after he turned supposedly turned his life around then he says he saw guy's head blow open that's about the second degree manslaughter conviction it's undisputed i think mr did that he shot someone in the head and the court said he saw guy's head but open that was a poignant memory in his psyche it didn't change him then he's saying if that didn't change him what might have and then the court says i think search counsels i think attention dramatically the court says i know that almost from day one after i got out of jail for them outside of conviction he was getting into trouble again and then why should we think his future is going to be changed in any way i think it's it's the correct characterization of this record is that the court use the domestic violence allegations when he claimed i'm just a drug addict but didn't focus on them well that's one thing you know just to give the judge is supposed to give some explanation for departing upward yes you can port upward under the guidelines or did you deport upward or did he very under the twenty five to fifty three what is it fifty three thirty five fifty three eighty five fifty three factors thirty five fifty three when what was the explanation that statement of reasons which is in the document called as i can read those are kind of weird that's kind of an odd statement of reason well he checked several boxes under three fifty thirty five fifty three and then he said he thought that the defendant was a persistent a complex persistent and manipulative offender at pages fifty three and in the one little typed out thing he says yeah i think it's i think page three given in the prisons report and then he goes on to say i just believe that this defendant is too dangerous to risk letting him out into the community and that is a thirty five fifty three fact a factor specific deterrence of a criminal but is an entirely legitimate exercise of the district of the district courts discretion at sentencing and has absolutely nothing to do with the domestic violence allegations one final point about those allegations dangers of any minute it's going to go back and smack around this part i don't think that's a fair reading of the record because the united states and probation when they were advocating for the maximum term both noted that you know since he got he'd spent most of his adult life in prison and he had four felony know and that means that to the extent the district court was influenced by the idea that he abused women there was a conviction that showed that that the court properly considered forty three mr powers trying to defend himself and saying i have a drug problem but i'm not a person i have a good heart then the court goes you beat up three women or you threaten them that's a declarative statement he says that's what you did and then he to make the point clear he reads all of the allegations about sure and mickey geneva right he just reads all these explosive allegations so to say that the judge is not focusing on those as the reason mr powell is so dangerous are the reason mr powell has an extensive criminal history really doesn't with what the record itself shows and we also refer to twenty three when mr when mr coo the defense attorney says he doesn't have such a horrendous criminal history the judge merely interrupt