motion and goldblum and that standard is simply whether the motion conclusively demonstrates that it does not meet section twenty two forty four before is required i think we can move on because i do i think we've got to adopt some sort of of a test now now we've got some experience where our sister circuits the night before the tenth eleventh i think we need to talk about sort of where we were going to fall in this group and maybe you can just address that well i think we should f fourth and at least one panel of the eleventh circuit has as indicated that is if if you have an arm pre approval acceptance and you have a sign of white record like most of these cases are and you come into the district court on a success filing if your sentence may have been based upon the residual clause you past the gate and that doesn't relieve the defendant burton it simply allows the court to narrow the range of cases in which a successive motion motion is appropriate and that's all this  was being declared void and this court in looking at the record might think well perhaps this thing should go back but when it gets back to district court they take a look at it you have the individual was sentenced under the arm for criminal act but he had three drug offense predicates into burglaries well that individual's out of court that person doesn't satisfy the gatekeeping requirement so or it could be a situation in which there isn't a fifty one dollars file than the person subject to a mandatory life sentence or some sort based upon the law as it existed at the time that they were sentence the problem with that standard is almost every single one of these cases has a silent record there's where in the extreme that a court said oh i am i'm using a residual clause to impose particular sentence as opposed to simply doing so what's wrong with then looking at the state of the law at the time that the sentencing occurred i mean there would be since leaves a somewhat logical reference point well it's somewhat logical except for you think about it in these terms so those guys would get the bad the benefit of say taylor but not of shock and you got another group of people who would get the benefit of shepard but not of the johnson two thousand tendency when you get another group that gets a benefit of justice in two thousand and ten but not the camps are not  mean that the sentence wasn't based on the residual clause it wasn't based on aca it was based on the fact that your client for reasons good and sufficient himself decided to bind of self to a specific term is it based on the guidelines so why should this not why should the fact that this is an african case be treated differently than the guidelines case where the supreme court said if you know through well let me just back up and say if you agree that justice well i would simply say this mr peppers came into court he wasn't charged with a whole bunch of offenses so we don't have an overlay of a drug charge or anything else we simply have a straight up felon in possession nine twenty three g case you look at his guilt in your and your foregoing perhaps a later challenge to the underlying conviction in this particular case it's a sentencing i mean all of these individuals frankly pled guilty but for the most part i should say all i'd say the vast majority of you  convictions as a juvenile conviction he may run the risk that the government decides to seek the charges that they could have sought back when he took the plea agreement right because that it's in the police remit that they can reince if you're right they can go after him for murder one if they want that's true i don't think by the way this plea them was offered because of the government's generosity or because they felt sorry for mr peppers i think there was a significant proof problem and proceeding with those charges but be that as we see which is probably gotten worse over time right i don't think it's changed over time but certainly  if they wanted to prosecute him for first degree murder they'd have a tough time of it in large or because of the passage of time which prompts me to ask is it is it the case that we should be paying attention to the freeman idea that there's  struck and it should not be writing feels now after the fact well i think that would be the case if you see this hayes was prosecuted with a number of charges and there was some sort of agreement based upon guideline calculations and other things particular case related but that's a pretty when you say simply that's a pretty big deal i mean it's a big enough deal that the supreme court the united states has said in effect see please are different but they're different and they can be different but we don't think this one is  squarely within the exception because his sentence was based upon the arbor grimlock that could have been based upon anything else that the judge certainly didn't come up with fifteen years going to need to do the parts that's what the act again this is a matter who's got the burden to come forward with shepherd documents i think it can matter but it's probably a lot more limited impact than the government suggests i mean in light of mathis the number of cases in which shepherd documents are going to be important is fairly small  there is in the middle district of pennsylvania twenty arm criminal act he says i mean so and out of those the vast majority can be resolved based upon the statute of conviction so it's a fairly limited number nothing think it's really that big a deal to to come up with and frankly the if it's not just it's not that big a deal to come up with them then the party that has the burden of proof the defendant ought to come up with them and that's the end reason well it can be we're in a little bit of a different position than obviously the probation office which does this all the time or the government which as it will be greater access to records and we do particularly if they're out of state i don't but my point really was not so much that it's so small a deal that anybody can do it but simply that the government's position is this would you know  there we believe is a couple of reasons why i may ask a should be treated differently one is the district court simply went through and used the preset report to figure out what was a crime of violence and that was a factual analysis and it shouldn't have been able to do that serious bodily injury without force well that's you know it's the same kassam and so our position would simply be this haslam is addressing a different thing and they made it pretty apparent in the pinion we're taught that the presumption consistent uses doesn't apply why not yet when they when you say they made that clear what kind of a what kind of the world are we living in where you can say that serious bodily injury and force those though those things ought not be considered consistently across criminal penalties that shoot that's a strange position why why now i'm not saying it's not the position the supreme court took may well be but why why should we go there why does that make sense well it makes sense for a couple of reasons as this case makes apparent as many of the other want to do frequently a prosecutor it is in a state court level will include the facts in it in a charging document some will won't one way to make sure that there's a consistent treatment is by focusing on the elements as opposed to the facts because this because a prosecutor included a factual recitation in one charging document here but i'm asking you about the elements because  to get where you want to get you've got to say what you said a minute ago which is ignore the castleman even though castleman seems to be saying you can have serious bodily injury with in direct universe of cases that might be subject to the prohibition consistent with the congressional intent if you're talking about putting somebody in jail for fifteen years of life and you're going to do it only in a situation where there are pretty significant criminal begin with you going to make the the world of cases a little bit more narrow you have examples where you can have serious bodily injury without the use of force but like state court in pennsylvania yes if you starve your children or lock somebody up and don't give them access to medical treatment when they might otherwise need it you see them crop up occasionally but serious bodily injury in state court that that universe of cases as defined in pennsylvania is a little bit broader and a universe of cases that the supreme consider cases that were decisions that post date the sentencing date you were to determine whether something meets the omens cause or not well i don't think we should preclude the courts from considering clarifications of existing law mathis is inside but the but the district court the sentencing court had had been a benefit the benefit of that right that's correct we're trying to divine the reason that the district courts had i think right and obviously this new cases are not well the government concedes that the newer cases would be applicable in america you know so let's just take for example two individuals well they concede that unmanned world looks like they're applying it but they concede that in peppers and that's something i'm going to be asking your call we give out to make the point that there doesn't seem to be a particularly good reason to treat this gate keeping thing as some sort of extra burden of proof simply because a person found a prior twenty to fifty five i'm over trying to do is narrow the range of cases where we could but when you say it doesn't make sense to me it's an extra burden thing that the congress made in an excerpt thing they specifically put in twenty to fifty five h and twenty to forty four as limiting things to make sure that there was an extra burden before you file the second or so the success of twenty to fifty five motion that's i mean you're just seemed to be driving into the teeth of the statute itself there are there they meant to make that a serious hurdle didn't they i don't think they meant to make a serious or i think they may have meant to make it a hurdle that never the range of cases reconsider as a subsequent twenty two fifty five yes they met they meant it quite intentionally to say you get one shot at this you get one free bite after that unless you can show you're relying on a new issue of constitutional law case made retroactive on appeal by a decision then of the supreme court or new evidence it says so you only need to recite the whole twenty five each standard to you but it's a high bar and it's an intentionally high bar so i'm not i mean i understand where you're going with this argument but the way it's somehow unfair to make sure that the gate keeping associate with twenty to fifty five bases is not too significant seems a strange position to take given the the very clear statement by congress that yeah it's a serious gate now you're the soon you get through the gate  be and i'm not sure those two things are the same you seem to equate their burden of proof analysis with twenty to fifty five h p in a high bar but it's possible that they're wrong that twenty five eight is indeed a high bar but you clear it because of johnson right that's our position that the fact that case gets you in the door we've identified a particular role it's been made retroactive it appears to apply to this gentleman who's been sentenced under the arm for criminal act and he still has to meet its burden of proof we're not relieving them of it he simply gets to do it circumstantially by proving that he didn't fit within any of the other cat because according to him he only mentioned it in a footnote in one of our previous that's inaccurate we actually briefed the issue and that's a document number three zero six on the jurisdictional point i want to clarify the government's position mr peppers in his reply brief and i think mr arkin the same point during the white oral argument but the government government has been consistent about what the position is it's not the government's position but a defendant loses just because a sentence in court did not specify whether sentencing a district court must have used the residual clause in sentencing him under aca and mr peppers case is a great example of that before you keep roland i want to i want to get one thing straight at the  you or do you not agree that assume you assume we thought that they got past the gate keeping and we were on the merits do you agree that at that stage post sentencing case law particularly of the character of mathis in the camp and johnson twenty and which are by the supreme court's statements not new law but clarification's or or merely stating what the law has always been is a law that can be looked at it depends on whether the defendant's motion is an initial or second or successive twenty to fifty five motion the government's bottom line is that in either case a defendant raising a johnson claim needs to establish that the residual clause is actually used in his case right now we're through the gate we're through the gate once you through the gate we're on the merits maybe i'm just missing your point here and i clause is actually used to his sentencing he's established under johnson twenty fifteen his sentence was invalid and so then you can look at when you say oh so you you are in fact saying that that you view the gate keeping jurisdictional question and the merits as the very same question they're the same and you got any second or successive motion that is the case and because and how could that be counsel how could it be the case that congress henschel he set up a system in which the first step is entirely redundant or the second depending on how you one look at it because they're really the same aren't we supposed to look at these things and imagine that congress is approaching it qualifying predicate so there is something additional that that's a that's an issue that's come up that's a completely separate issue right that has nothing to do with whether this person was rightly sentenced based on the clauses are the convictions that were the battle between the parties i apologize again i'm not following that at all the fact that there might be something else in the record which could justify just sentence tells you nothing has nothing to do with this issues we're fighting about right now we may get to the point where we say hey remey on because the defendant's right but at the end maybe to sky where these two people have other qualifying convictions that what does that have to do with the analysis we're in right now and then else the screen right now we're trying to figure out whether it's very specific prior convictions that you folks are fighting about do or do not constitute  crimes of violence subject to the elements cost so help me out how can it be the case that congress set up a system where step one step two are the same step let me try to spell it out a different way when when a defendant asserts a johnson twenty fifteen thing he is in effect asserting that his sentence was based on the residual clause so in an initial twenty two fifty five motion he still needs to establish that his sentence was based on the residual clause but  ss to establish should that's i guess that's the real question right you've taken the position that the gatekeeping is the merits face how what do you have in the way of law what precedent do you have that says congress set up a gatekeeping  gatekeeping requirements at the district court level the district court is probably going to have to address or touch on the merits are going to be overlap there there's going to be interplay and that's because of the way that the gatekeeping requirements are structured so  sure sure that's true and we said you've got to have i think this record level you've got to have a more serious interaction with this than at the pope level i mean we we were pretty clear on that i think but the fact that you you have to touch on some of the same issues that you're going to hit on the merits that doesn't mean it's the same analysis and the same standard doesn't well again the government's bottom line is that even if you don't have the gatekeeper requirements even if it's an initial twenty to fifty five a defendant still needs to establish that there is a will cause disease and that's not what the eleventh circuit decided and beam and that's what the tenth circuit decided insider those were both an initial twenty to fifty five and then because of the way that twenty two age two and twenty two forty four b to a are worded and structured if a defendant cannot show that the residual clause was used as his sentencing then he cannot show that he's actually relying on or depending on johnson and so therefore it needs to get booted at the gatekeeping stage but the in the end even if the court doesn't agree with the government that it's not a gatekeeping question the government would still argue that at the marriott stage and even if it was an initial twenty to fifty five that the defendant still needs to satisfy the same burden and that's that's what snyder is even included the same bird so and that burden is what more likely than not the second or successive contacts those cases don't need to get even harmless any and you can rely on it at the merit stage if you're passkey keeping you can rely again it depends on whether it's and initial or second or successive twenty two fifty five i don't understand that i have a tough time well in that because i've just given you a hypothetical which is imagine you're through the gate keeping because at that point if you're through the gate keeping there's no difference between an initial and a second or successive right that's correct ok so you threw the ga point and the defendant would be able to make use of current law but the reason the defendant cannot use post sentencing cases to establish that the residual clause is actually used in his case because again in  cases that the supreme court is going to have a squeeze in effect say so what the law is always been you guys out there may have been confused about it but we're not saying anything new this is always been the law like why is it wrong for a defendant to say i'm just reliable look the law was was the supreme court just made it clear to all you folks who didn't understand there are a few reasons for that first you're trying to answer a question of historical fact what did the sentencing court do and when for burglary for example when you have a case like this court's decision in bennett which allowed for pennsylvania burglary to be considered in certain circumstances and of course when answering the question of historical fact you have to bennett and not a case decided in twenty sixteen by the supreme court or not this court's decision twenty seventeen we're not we're not applying the case law we're trying to apply the statute right i mean you're you're you assume that we are applying we're just trying to figure out what case law says but we're supposed to be applying aca and or improve criminal act according to the supreme court the united states has always meant what it said it meant madness always always meant what it said it said johnson twenty so why does the fact that the supreme court says that later  mean it doesn't mean that earlier doesn't doesn't the law say no it did mean that earlier because you're trying to determine what the sentence for actually did and when there's on point circuit president that indicates what the sentence in court likely did that's the relevant question that's what you should look at and even in jesus which ultimately the ninth circuit ruled against the government in that case the ninth circuit indicated that when you have an on point circuit precedent that indicates that one of the predicates would problem on an initial twenty to fifty five of showing that a massive scam creates the ability to assert the claim more than a year after the final can the conviction became final because it if we were still arguing about the geek you make it this way assume we got past that for the sake of discussion assume we thought you're just wrong and we're through the gate and we're now at the point where we can apply  if applying for a lot of burglary conviction would not qualify and and if that were true would we have to go further and and look at any other things or is that it enough to say it looks used in this case and so applying this court's decisions from the one nine hundred ninety s in bennett in cornish judge rambo said that the robbery convictions qualified under the elements of a by your own admission at that point she's making a mistake right because if you're through the gate keeping she should be looking at bennett corniche she should be looking at johnson twenty thousand right regardless of why it's a gatekeeping inquiry the government's bottom line is that a defendant has  sentencing case law is that right because if that's right and i thought we had established that then bennett and cornish aren't the things for her to be focused on to those attention could rightfully also have been and perhaps exclusively should have been occupied with cases like johnson two thousand and ten right the government's overarching argument is that a defendant has a burden to establish that the residual clause was used at his sentencing but rambo's seemed to agree with that argument she disagreed with the government's position but that should be addressed at the gatekeeping inquiry for a second or successive motion and then can you i don't know whether you can answer the question i posed here or not so let me try one more time if we're through the gate we're through the gate post sentencing case law is a full year political and i think you said that right as long as the gatekeeping inquiry included asking whether the the defendant establish that the residual clause not going back to the gates not taken back they were throughly hands on what the gate is requiring the defendant great oh and i'm asking you to assume he's gotten through it that's what i'm asking you to assume now please do that and tell me whether or not if we're through the gate post sentencing case law applies yes but all right but if that's the case then i assume judge rambo took you through the gate you're through the gate and you don't get to go back if we're through the gate and soon we believe that's the case should she or should she not have been looking at johnson twenty town she should have been except in that case the government would say the federal amber got it wrong because she should have treated whether it had i think a keeping right not a right yes but exactly i'm clear on that you have made that abundantly clear that your position i'm with you on that and just to spell this out a little bit more what i'm trying to say is what the eleventh circuit did in the men in the tenth circuit in snyder was correct the gate was not even an issue in those cases but nonetheless those courts required the defendant to show that the reason to applause was actually used in his case and the courts share so in may oh she's definitely went straight to the merits and was looking at whether under current law his predicate convictions the sure fire the gate didn't look she did not address the government's curst actual argument all and she did not robbery convictions would have qualified and the elements clause as would his aggravated assault conviction now if the court disagrees with the government on the fact that a defendant has to show that the residual foz was actually used in this case just briefly  felony but if the court disagrees with the government on that then the government does agree with what judge rambo did at the marriage and i think that conclusion is required by what this was that any time you have the causation of bodily injury you have the use of force and so that i think for any time what are we to make of the language to the supreme court in castleman which is in effect we're not talking about other stuff we're just talking about this does that mean or domestic violence case in that in the context of this one thing any sheen on or whatever that subsection is like that's what we're talking about and we're not talking about anything we don't usually go out of their way to say and we're not talking about anything else but they said it here isn't that significant i think it is and i think this work consider that in chapman and concluded that when you're talking about the elements clause under the guidelines and then the same thing w apply under aca that the court's analysis in castleman applies fully and that's what the court ultimately decided in chapman and so i think that resolves the bodily injury pouri mr art also we would we do what do we do with case i mean out of pennsylvania yeah we've got a we have a case from and it's the left the supreme court but it's the only kind of case we've got to work with where they are perfectly clear and say under our statute you don't need force if we have the courts of the state telling us our statute does not have an element of force how can we say oh yes it does because this  that essentially said the same thing for the crime issue there that force was not an element of the offense but the supreme court made very clear that you need to look at what force means under federal law now the time with anyway you tell me that the that the u s supreme court in johnson twenty ten was telling florida that it doesn't know what its own statutes never say and we will define what forces under aca they didn't purport to say and will tell you what you meant in your statute they just said a right good enough and in this case we say federal law governs what forces under aca but we don't we don't presume to tell the state of pennsylvania what it's aggravated assault  whether it includes the underage statute force or not if the state's courts tell us it doesn't include force isn't that right right but that was as a matter of pennsylvania law so under pennsylvania law force could mean something different from what it means under a but with respect to the thomas decision it is relevant to look at thomas to see what exactly aggravated assault requires in the pennsylvania law and in thomas which i think mr art does and other defendants have made the same argument what the defendant did in that case by starving her four year old child would amount to force under federal law because she took volitional acts they weren't accidental alicia all acts to actually put that child in a room hide the child it could have been charged i think is endangering the welfare of a child but it was charged as aggravated assault which i think requires some additional elements under pennsylvania law and those elements do qualify under the force clause and under aca is in danger of the welfare of a child wouldn't necessarily require the use of force but i read assault does what it what do we do what do we do with the explicit statement in thomas that the pennsylvania results that does not require the use of force you treat that as a question of pennsylvania law the court was entering what force means under pennsylvania law precisely and the question we have to answer is whether the least culpable conduct under the pennsylvania statute would meet the definition of the elements clause under aca right right ok so if the least culpable conduct of the state of pennsylvania's own courts is no force upon blair and his no want to water under the bridge in a week of math this and to the extent that the court views the divisibility and scope of the aggravated assault and robbery statutes it's important as a threshold legal issue we didn't