good morning please be seated ladies and gentlemen this morning we have six matters to consider only two of which will be argued orally at this time we're going to submit the following cases united states versus when it required that a supreme court case expressly overrule this court's precedent that's not the standard as both parties acknowledge the correct standard is that a case is implicitly overruled when it's theory or reasoning level over a brother and he's been explicitly overruled that's correct your honor miller i'm and the cases after miller make no distinction between and being case and a three judge panel case that is overruled by intervening supreme court authority if the conclusion in that were overruled but now now you're arguing clearly irreconcilable that's different is it not it is different it's implicitly overruled as opposed to express the case overall so how can it how can the supreme court case implicitly overrule a decision when it reserves the issue for many reasons your honor first of all there are other cases in this court that have done that exact same thing i would point to williams first as yamaha motor company where there was a reservation and the court looked past that reservation in the supreme court precedent to examine whether the theory or reasoning was clearly irreconcilable with the theory or reasoning of the ninth circuit case that it had implicitly overruled the court despite the express reservation in the supreme court's opinion in that case not in williamsport in the case that it was actually considering held that because it had over ruled it had undermined the reasoning and prior ninth first of all iran has never argued that the rule of lenity applies second to first circuit after the supreme court case says no we're going to stick with our prior case law i guess we'd have to determine that they were just absolutely dead wrong you don't need to determine that they're absolutely dead wrong because the first circuits prior case was much more clearly based on the against the person of another language that was not it was certainly because fernando's ruiz held that it didn't have to look at the statutory interpretation and the fernandez ruiz dissent held even more clearly that the rule of lenity does not apply the ninth circuit has then now applied for nand citing pre pre fernandas ninth circuit decisions and fernanda and decisions based on fernando's ruiz in other contexts to assist suggest that the context this court has applied the fernando's ruiz reasoning of different contexts including where against the person of another is not even included in the provision so i'm suggesting that because the ninth circuit has looked at this language and fernandez ruiz and applied it  different contexts that it is a political and a variety of just different contests and that was seen as a political and a variety of different contexts i would note also that several other circuits have gone this way the first circuit as the outlier the great majority of circuit courts who have considered this issue have gone with the same argument that the government is making in this case which is that was in is a political to other statutory provisions beyond the m c d v provision that the supreme court was mc d v provision even includes a victim if you look at the statutory definition of the mc d v provision it requires a victim and it's impossible to imagine how you can use force and have a victim without having used force victim a question about arizona recklessness yes a topic i once knew something about no longer do but i think it includes being unaware of a risk solely by reason of intoxication even in the federal definition include intoxication it is so intoxication is not a specific defense in federal law to anything except an intentional priority answers no i don't think that that's right your honor or not yes it's perhaps a maybe because intoxication is not a specific defense to anything except an intentional crime somebody could still be reckless and intoxicated under federal law and it wouldn't be a defense to recklessness we didn't cite those cases in our brief because there there was no question that arizona recklessness matches the generic definition of  ask the question judge hawkins i think tried to get you to answer a moment ago i guess if you are intoxicated but unaware of a risk are you acting reckless government just agree to assert we think that the sixth circuit got it right but there's a circuit split i mean what you're basically saying to us is that there's still a circuit split because we have this old case law we haven't overrule and and the six circuit cases up there the united states all the united states has to say to the supreme court is take it and ressources all of this issue and you're and you're battling out ice over rulings are in banks i'm not sure why we should do that well in this case it meets the standard for overruling your and then precedent in being president is implicitly overruled when a conclusion any precedent is implicitly overruled when a conclusion in that precedent is no longer supported for the reasons stated in that precedent and there are two major conclusions in fernando's reviews that are no longer supported for the reasons stated and vernand fernandez ruiz let me at the risk of being a smart guy you're from the local u s attorney am you're not from the department of justice except by relationship to main justice correct that's correct your do you have the authority or knowledge to answer the question the judge her what's asked you about agreeing to  involve the intentional use of force against the person or property of another was seen expressly hold the the it held did not go that far lead how reserved the question it didn't even go as far as recklessness is simply not supported after boise the second thing and i'm quoting again from fernando's release here the reckless use of force is accidental and crimes of recklessness cannot be crimes of violence seen which stated that the harm caused by reckless behavior is the result of quote a deliberate decision to endanger another and therefore no more an accident than if the substantial risk of harm were practically certain was seen held the exact opposite of what this court held in fernando's reviews so trying to salvage fernando's rui is by looking at an express reservation or looking sort of behind it you have to look at the theory and reasoning of boys scene and the theory and reasoning of fernando's ruiz and fernandez ruiz was implicitly overruled because it's no longer supported for the reason stated in that case you want to reserve three minutes you got three forty seven you want to hold the whole thing or you want to kill something for forty five seconds i will hold the whole thing your honor i think you very well let's hear from good morning your honors me please the court my name is keith ellison duggar i'm with the federal public defender's office and i represent the petitioner here so so around i guess i'd like to start with the premise of the first question the church herbalists asked my it your point is not that it cannot be applied your argument is that it not need not necessarily be a part applied right i can tell you if you were here and we had no precedent on this issue you'd be you'd be in a much bigger think i agree with you roger if there were no precedent on this issue that this panel was bound to follow i would be in a much bigger hole because there are parallels between what the court and was seen said about the similar language in the provision about the mr mir crimes in most domestic violence and what the supreme court has are and what this court has already said about the force because of the our current criminal act the problem  is there supreme court has been abundantly clear for a decade or more that these two provisions even though they use very similar language have to be interpreted in light of their different purposes in contexts you know  opinion that circuits were going other circuits were leaning the same way as the ninth was correct i think that's right yes that's a choice in this change has been that situation in light of  was denied on that the supreme court denied certain the d c circuit case yes ok but the fact remains your honor that this court's precedent is not clearly irreconcilable  theory and reasoning of was seen makes room for the fact that there might be different arguments and the supreme court basically said we want to settle this question for ourselves and that means under this court's rules or precedents that because there's already circuit law on this issue it's not impressive implicitly do they say they wanted to settle it for themselves or they just say we're not reaching it today i don't that's really quite different i mean supreme court can reserve to itself i suppose any decision it wants to put it all i read was seen as saying is we're just not reaching that issue today we may reach it another day other courts may reach it in the meantime we're just not reaching it can you read any more into that footnote in that th e i think that's all i need to read into that footnote though your honor because your friend says they've done that before and we've we've found cases it clearly irreconcilable before with all due respect i'm sorry i disagree with my friend because the the reasons why the supreme court said there may be different interpretations are exactly white this court should say that its own president has not and implicitly overrule the fact that there is a different purpose and context for on the one hand saying that certain people can't be allowed to possess a firearm at all and on the other hand saying that a different category of predicate crimes qualify for a sentence and handsome and in those same kind of prohibited possessor cases is has ben this report has said and nuff of a reason to say that the provision in section one twenty one should be interpreted differently than the section would it be reckless crimes cannot qualify as the use of force under the force clause because they do not amount to the intentional use of force which is what what's at the heart of voices in the heart of was enough is reckless crimes can constitute the use of force for purposes of a misdemeanor enhancement or a misdemeanor prohibition because the use of force that congress was concerned about there is more analogous to common law battery and different from from the kind of use of force in the felony for theirs so can constitute or cannot constitute with reckless beforehand that's really at the heart of the two cases and that's the heart of the distinction between yeah cases yes wrong and you asked us to look beyond constitute  i i guess that's yes that's what i said so you know aside for a moment what other circuits have done what is the best argument that could be made that was  statutes or is it based on some other context well the language is not being used in a vacuum it's used in the congress no i guess what i'm asking so separated for is it based on the language it is based on  in plain language you're saying what it was we sometimes say when it's not plain the plain language is used in the context of on what carol is to the statutes have similar language yes they did you can't look at the language and make a distinction  you just if you knew nothing about the context if you know somebody held up the two statutes next to each other and said you know nothing else you wouldn't be able to make a distinction based on the language where they both use the word use so you know ok so your argument has to be that  we should look to the decided history purpose what my argument is that the purpose and context is the second the second interpretive who told that the supreme court has brought to bear in these contexts where the plain language might might be distinguishable and the supreme court has said for over a decade that the purpose in context of this provision the felony provision has to take into account that there's a until at the very least and bank panel of this court has said that it doesn't should we ask and in my panel to take this up we do have the ability as a panel to in effect call a case and bank on our the three of but as much as i would prefer to win in front of this panel i also think that it's apparent from the arguments that both sides have presented this case that that may not be an imp thing to do but the government has not asked this court for initial and bank hearing i have not asked this court for initial and bank hearing and we are here today i am in front of a three judge panel so i suppose as part of this part court deliberative process it could say we're going to vacate submission and then just call and then bank proceeding in in the way that it does keep me ask you a question that i surprised your friend with i suspect it's a surprise for you too is there the definition of arizona recklessness is it different than the generic definition of federal recklessness yes because of the intoxication provision that's what the court in fernandez worries relied on partly  the distinction to between purposeful and accidental conduct and which is so is intoxicated conduct purposeful no well is it accidental view the dividing line is accidental right what if you if you are salted somebody when you're drunk that wouldn't be accidental conduct would i suppose not but it wouldn't  wouldn't be the kind of intentional conduct that should qualify for a felony sentencing handsome an either and i think that's the distinction between on the one hand saying people convicted of that crime might should be prohibited from  at all and on the other hand saying but when those people do possess firearms are convicted of that criminal offense should not be subject to enhanced punishment if they have a certain number of prior convictions for that offense strong enough logic reasoning that it overpowers fernandes ruiz in and of it's self and that we wouldn't need under any circumstances to ask a non bank panel to get involved can say going back to judge hawkins is first question only and then bank panel can say that and then bank decision of this court is overruled and gary versus miller makes it pretty clear that in order for us as a three judge panel to overrule statement yes it is your honor and because there are two ways to look at it there is a circuit split on this issue i don't think that this three judge panel can say that it's clear that fuzziness fernandez worries are irreconcilable and if the panel has no further questions i will ask him to affirm the grant of post conviction relief of the question from my colleagues thank you very much counsel so the government has some rebu there are four points that i would like to address in rebuttal and that the panel was talking about with my friend first of all the state and a lot of the state of the line other circuits i want to be very clear on this this court was not alone in interpret incorrectly but now that was in has come out five other circuits have held that was use logic applied is in different statutory provision but but counsel back to what i ask your friend do you believe reinterpreted leah cal and held in the in its very clear reasoning that this course interpretation of leah cow was wrong the two cases are irreconcilable there's no way around  provision that the court was interpreting in fernando's release trinidad aquino then looked at recklessness versus negligence and held that again the air it up held the sauron sanchez rule that arizona recklessness count question here not recklessness versus accidents other courts though have also held exactly as we are asking this court to that their prior precedent was overruled three judge panel have held that their prior precedent was overruled that was in the fifth circuit in the sixth circuit and in the tenth circuit the tenth circuit uses a standard very similar to this court standard in asking whether a supreme court decision is contrary to  invalidates our previous analysis and the tenth circuit held that was seen did that as to its previous analysis so no the court doesn't need to go on back here very very clearly i don't have the authority to ask the court to go on bonk and i would i would certain but i would also note that the third circuit did sue a sponsor a go on bonk in a case presenting this question and that case is pending before the third circuit right now with arguments scheduled for may fifth so this is this has been settled five circuits and three and two other circuits are now considering the question you know what the third circuit standard is for a panel overruling i don't know your honor i'm sorry thank you very much for your argument to my colleague to any additional questions