morning may please the court my name is the maclaurin and i'm here on behalf of the united states are spectrally reserved three minutes for a bottle in this case the district court granted davis twenty two fifty five relief even though davis did not prove that his sentence was unlawful this court cannot allow that decision stand as the twenty two five put to could maybe we should should not absolutely judge goldman as the twenty two to five petitioner davis was the one who board the burden of proving that johnson invalidated his sentence to meet that burden he needed to show that his prior tennessee aggravated assault only qualified as violent felonies under the residual clause he did not do so and he cannot do so because the records for those prior aggravated assaults demonstrate that each one involved a variant of the offense that qualifies under the use of force was a provision not affected by johnson davis was properly sentenced as an arm per criminal and he should not have been granted twenty two fifty five relief at the time that mr davis committed his two aggravated assaults that are at issue in this case tennessee's aggravated assault said you contained three different offense count under the use of force for that includes reckless right under the old one yes the old version the sad you did not break out mens rea into separate subsections as it does in the current version of the statute so what do you think of this court's decision in harper where i understand they followed binding precedent but they also then pointed out the problem with using iraklis under this scenario against the person of another i understand it's binding so i'm just asking the question to your answer respectfully to all the judges on the harper panel we think that decision was incorrect we think the panel you think the decided was either act the reasonings and correct the day we didn't ruled in your favor yes we believe that the reasoning outlined harper is incorrect in that very reasoning was specifically rejected by the court and we place great emphasis on the phrase against the person of another and treated that is somehow a rosetta stone that added an additional require that that distinguishes it from boise and right because boys in was just defining use and what the harper panel said is against the person of another you can't have a reckless use of force against the person of another it has to be intention knowledge or recklessness and that insight doesn't change whether the use of force is against the person of another the property of another or against and the other thing also is a practical matter when you look at was in the statute that was interpret actually did require the use of force against the person of another the statute didn't include that specific phrase against the person of another because the linguistic structure needed to be different to encompass a narrower class of persons that i thought  correct me if i'm wrong i thought it was the one who started the plight analogy and they said if you throw a plate next to your spouse and it shatters and harms the spouse that qualifies but they were talking about use and then what judge kept which said in harbor is use against the person of another if you throw the plate and intending to hit next to them you're not using force against the person of another may circuit which was the first circuit to express some uncertainty about this the first circuit recognized that was emain indeed require the word the phrase use of force against the person of another to be interpreted exactly as the government suggests which is that it includes reckless conduct what the first circuit said is well it could also be interpreted differently and so we're going to apply the rule of lenity and give the tie to the defendant i think it's worth noting that the d c circuit recently w c circuit pointed out that if you actually look it was enough that statute like the use of force caused the arc or a criminal act required use of force against the person or another it specifically in textually required that the use of force be against the victim now it doesn't include that specific language against the person of the victim because the way the statute was written to was to define the class of victims a little bit more narrowly than the class of victims that are at issue in the arm for criminal acts use of force cause but both use of force causes are using the term use in the same way they're talking about use of force against a person and so if that's is what is going on in boise and says explain to me maybe i'm missing something how do you recklessly use force against another person in other words i understand intentional how do you recklessly would you act with a misery of recklessness as as the plate throwing example given by the supreme court in was seen as an excellent example of how you recklessly use force against the person of another when you are not try to use force against a person of another at that point you were acting volitionally which is the key that was identified by the supreme court was a new acting volition with an awareness that your conduct will cause harm to others and that is what is the key according to the supreme court was in that's at issue when one acts recklessly and in fact whether a personally that causes harm disregard the risk because you don't care whether that other person gets harmed that is the precise kind of violent conduct that should fall under the arm for a criminal act the fact that somebody acts recklessly does not make their conduct any less violent for purposes of the arm per criminal act and so i think the this court in here we and every other circuit with the sole exception of the first circuit has correctly said that the emperor carmelites use of force clause does encompass reckless conduct and in this case what we have is a situation where mr davis was coming in saying his sentence was in fact unlawful but he hasn't offered any evidence to prove that his sentence was based upon a prior violent felony conviction that only qualified and the residuals the evidence in this case to the contrary what about his argument the shepherd documents are insufficient well i think there is misplaced for two reasons first of all he is the one who has the burden to prove that he was convicted of a variant that doesn't qualify so if the shepherd documents are not sufficient that means he loses that means the evidence isn't help him meet his bird now in the interests of justice t he united states provided the actual documents in this case and we believe that those documents conclusively disprove his claim that he was somehow convicted of a variant of aggravated assault that doesn't qualify if you look at the charging document which again is the document that the supreme court says you should always look at what was he charged with in this case he was charged with committing a variant of aggravated assault that falls under the a one portion of the statute that is he assaulted somebody and either cause serious injury or use or displayed a deadly weapon as this court has repeatedly found that variant of aggravated assault has as an element the use of attempted use or threatened use of violent physical force against the person of another this requires that someone be a parent a parent or custodian of a child or an adult is a key element of the offense and that is nowhere in the petition the a three variant requires that somebody be subject to a restraining order again that is nowhere in the charging documents in this case so these charging documents preclude the possibility the who is actually convicted of one of those other variants of the offense because he couldn't have been convicted of a very you know the offense with which he was never charged  i know that counsel has suggested well there's a mere possibility he could have somehow been convicted of a different variant but there's simply no evidence whatsoever to establish that in this record and at the end of the day it is mr davis is burden as the twenty two fifty five petitioner to prove his claim he must prove that his sentence is in fact a lawful and if you can't show that any of his prior convictions qualified only under the residual clause he cannot meet that burden and so is for that reason we are asking this court to reverse the district court and reinstate davis original judgment sentencing him to a fifteen year term i thought th general principle of johnson was that we're supposed to apply the categorical approach prior crop prior conviction yes and if you do that the tennessee aggravated assault statutes encompass more than what generic aggravated assault because they include instances where you're a custodian of a minor and you know guardian you don't protect them or something that would not if he were convicted of that that can finish answering your question the the reason we're allowed to look at the documents here is because we're dealing with precisely that kind of divisible statute situation that the supreme court has recently talked about so much in the descanso and mathis cases where you have a statute that lists one offense aggravated assault but it provides alternative elements of that offense so essentially what the said you does is it creates more than one offense it's not just one aggravated assault offense it's actually four different aggravated assault offenses that are contained within the language of the statute and what this court has to do under the supreme court's modified categorical precedent is look to the documents and identify what was the specific offense of conviction which part of the statute was he actually convicted of violating and so our position is because he can't show that he was convicted of violating a portion of the statute that only qualifies in the residual clause he has not met his burden and more than that the records conclusively show that he was convicted of a variant that qualifies under the use of force cause he was properly sentences in our criminal and should not have been granted twenty two fifty five relief thank you  good morning your honour's laura davis from jeremiah davis the government keeps referring to records these records of conviction and the government is being very careful not to refer to them as shepherd documents because the vast majority of the documents in the record to which the government refers are not shepherd documents while shepard does recognize that charging documents can be referred to it is in the context of when somebody has pled guilty as charged that we can look back to an indictment to figure out ok you pled guilty to that indictment what were you charged with and in mr davis case but here he pled to the exact thing and as the government points out the burden is on you not them so they don't have to come forward with anything to show it but what they did is came forward and showed that he was charged under a one because he's charged with shooting people which i mean i don't we engage in this charade but and it's amazing no one in america would say shooting people isn't a crime of violence charge with shooting people in one case a murderer as you point out your brief they drop it down they drop it down to a one ag assault and that's what the bench trial results in a guilty in in fact in the murder they went back in amended it after the bench trial to show it was agast so he went to trial your honor he did not plead guilty and so then right but the bench trial found him guilty of the charge and in tennessee that that is the ag assault if found him guilty generally of aggravated assault there is not a subsection well but that no rial with a a bath wasn't about the other subsections i mean the trial is about conduct that would fall within the subsection that would prohibit shooting people were honored i would go back then to judge the pars questions to the government about reckless aggravated assault because the one nine hundred ninety one thousand nine hundred ninety two version of the statute did not separate out reckless from knowing an intentional and despite the government's assertion two circuits have said that reckless aggravated assault when it can be committed with an automobile as the deadly weapon is not covered by fawzi that's a different class of offense because the sort of people who might drive drunk and then get in an accident injuring a passenger or whoever they hit that's a different class of defendant than somebody who shooting at people however here in tennessee is aggravated assault statute you have deadly weapon but what sort of deadly weapon is a means and not an element and you have an awful pushback on myself because i agree with what you just said but he he did use a deadly weapon i mean he shot someone so why aren't we just looking at the real facts here because the course supreme court has told us not to look to the facts alleged that we can only look to the elements and that at times we are engaged in this i said for seating well this is what was charged but those are facts they're not aliments and under a prendre you start with a prend the end you keep winding your way through in the last eighteen years that if you're going to raise somebody is mandatory minimum to five years above the statutory maximum and raise their potential maximum to life what we are only allowed to look at is what needed to be proven to have jury beyond a reasonable doubt or what was the necessary and that's true and mr davis case you know prove to a judge beyond a reasonable doubt what were the precise elements of the offense and the government's assertion that mr davis is needed needed to prove absolutely without a doubt that he had been sentenced under the residual clause is a different interpretation of proper the preponderance of the evidence standard than any court has ever given that explain that arms i'm sorry that what mr davis is the mr davis needed to show is that excuse me he may have been sentenced under the residual klos his predicate may have been found that way it's not a doubtless proof you know it's just the evidence standard and i think we've said that phrase so often it almost comes divorced from its meaning you know i went what is the preponderance of the evidence that shows he was sentenced to the residual clause versus the violence because there's no evidence and so the problem is with the government says look if there's no evidence of it on director view the burden would be on us but on hey b s the burden is on you and you can't make that show that's what they keep say that's what they get if we ha statute we're no part of the statute was residual clause like we do have the charging documents in the bench trial judgment because it says aggravated assault as amended by the agreement then you go back and look at the agreement and it's aggregate amended by agreement to charge of aggravated assault from a murder so we know it's a one so there's a preponderance of the evidence the other way it's from an attempted murder where you  the point it's it's a question of proof you can't make the existence of the residual into an evident truth that i mean that i think that's the distinction think there's just i think though that the existence of the residual clause and the existence of portions of the statute that would only qualify as a violent felony why are the residual cl and that there is no evidence one way or the other you then step into the strong there's no evidence one way or another the party having the bird fails except under the principle your honor where you know the stronger principles where you are it's a trial issue of you have a general verdict to a statute three part statute one of which is unconstitutional why would we nor the evidence we have i mean in other words what you're asking us to do is ignore actual evidence and engage in hypotheticals i'm not asking you to ignore actual i'm not asking you to ignore the evidence you are allowed to consider under shepherd and shepherd and decamps they all consider the charging documents because the charging documents help inform what they pled to or what they were convicted of in fact it tells you what the charge defense was and that's the principle behind all three of those cases but all three also say that they look to that document for the elements not for the facts so in mr davis case with the shooting but the facts inform the elegance in other words if we know he shot someone we know he wasn't worried about eight to right i mean we know he can't be convicted of a two if he shot someone correct a three  no however you go back to a one in this version the aggravated assault statute where it could have been because that action of shooting that use of a gun that is facts it's not an element you just need generically a deadly weapon so within the context of a one you have the potential for him recklessly firing a gun at somebody you have some they are option of maybe this was a drive by shooting maybe they decided that you know it was the driving that was reckless i mean none of that has anything to do with the evidence here that just has to do with could have been here that has to do with lawyer speculation it has to do with the sorts of speculation that the supreme court has endorsed its problem is where the procedural posture what judge givens keeps coming back to is the procedural posture of this case if it if the coin lands on its side you lose it has to fall down one way or the other and has to fall your way for you to win except for also with evidence and if you're if to sustain we don't need any help interpret in the burden of proof here proponents of the evidence that's the legal standard then the evidence is  documents or nothing and so what you're saying is there's nothing we in the government's point is you still lose if there's not if there's nothing and we're looking at i mean the other issue in applying the standard of proof is recognizing the reality of life in the district courts before johnson where when in doubt it was the residual clause and so you didn't have to prove a whole lot we had court saying oh it's aggravated assault that sounds violent it qualifies if it doesn't qualify under the use of force you could put an eye out that way and it's the residual clause and so as we come later to raise a claim under a section of the statute that has been ruled to be unconstitutional oben issue which is how we can look start even file these petitions if there's a chance if it's possible that's not the standard it's not if there's a chance if it's possible it's you have the preponderance on and if it is completely neutral you lose i don't think we should lose i point out that here we have evidence we have not only evidence in the charging documents we also have the finding that the judicial officer made beyond a reasonable doubt that he was guilty as charged not that he was guilty as charged your honor but that he was guilty of aggravated  can read that and as a shepherd document i mean the only way you get around this is saying these are proper shepherd documents which i understand is your argument yes it is ok if there are no furthe mean please the court i just like to briefly respond to two points raised first i want to respond to this argument that somehow the government and this court in potter has created a higher burden on defendants in twenty five proceedings the whole argument that has been presented today and also in the recent twenty jewett or those filed conflates two different things you completes the fact that somebody needs to prove in order to win their case with the burden by which they need to prove that fact what potter identified was the fact that you need to prove in order to win a johnson claim you need to prove that your sentence was based only on the residual clause didn't change the fact that the standard of the by which you meet that burden is propon the evidence and the government is not requesting a higher standard or simply asking this court to hold defendant to the scene or that exists he has to show by a perp hundreds of the evidence meaning is it more likely than not that is part conviction qualified only under the residual clause and the answer to that question in this case is no it is not more likely than not especially when there is no evidence whatsoever to indicate that his prior aggravated assault qualified in the residual clause and the evidence in the record the proper shepherd documents show that fact was convicted under the residual clause and if found guilty of a variant that qualifies under the residual clause i want to address this whole sheppard akim issue there's there's been some sort of suggestion that somehow these charging documents aren't proper shepherd documents but they're the exact kind of documents the supreme court has consistently told courts to look at and i miss davis has said that well you can't look at charging documents when there's a trial but that's the exact opposite of what taylor said in taylor the supreme court said no you want to look at the charging document in a case when there was a conviction by trial because the charging talk even tells you the theory of the case that must necessarily have been presented in under ten an individual can only be convicted of an offense which is charged in the charging document and so in this case the charging documents are the most relevant piece of evidence in these charging documents establish that davis two prior aggravated assault involved  context in which that case proceeded but here when you have a petition an adjudication of guilt i mean these are the precise kinds of documents the supreme court has said you can look at because they show that the ag assaults involved a variant of the offense that qualifies in the use of force cause they show that davis was properly sentences in our criminal he should not have been granted twenty two have to i believe this court should reverse the district court and reinstate davis original judgment thank your hono