without considering mr cologne's right to confrontation and without the government offering good cause of any kind secondly relying on those very same police complaints the district court determines beyond a preponderance of the evidence that mr cologne had committed a violation of article three point two a substantive violation of article three two of puerto rico's domestic violence law the government submitted no additional evidence no video no photographs no sworn statements no determine that he actually committed that conduct and that position deprives defendants of anything close to a fundamentally fair final revocation hearing after making those determinations the district court determined that article three  his pregnant innocent partner are you are you referencing the government's arguments are you referencing statements made by counsel i just would like to specifically respond to the court's question well what the probation off know your honor simply that he pled to the elements of a time to three point one and if the government wanted to prove conduct beyond that for example if they wanted to prove that he struck this individual they had every opportunity to present relative competent testimony or other evidence on that particular point didn't they put in to sworn complaint from the victim no judge if it submitted to police complaints that me that made  me accusations your honor there were never accepted accusations to other offenses so if the police complaints charge violations of article three point two in article three three mystical or modern novel never lead to those violations and the individual were not even including a dissertation on what happened that was provided by the victim what we have here is is simply a document that signed by some sort of police officer who we don't know whether that person ever spoke to the victim we don't know if you actually investigated the case or simply receiving all this information here say we drafted this complaint which is similar to a charging document and then filed it that's what's on the record there were no sworn statements that set forth the conduct  submitted by the government and that's one of the problems here when we're looking into whether or not there's competent evidence to support the three point two determination the government never sought to submit sworn statements prepared by the alleged victim or sworn statements prepared by the the lead investigator in this case they also never sought to admit medical documents as i mentioned videos photographs of the alleged injuries or anything of that nature to provide any sort of proper ration for this theory that they were advancing that there was some sort of three dollars violation committed and so the record is completely devoid of any sort of competent evidence to support the notion that that offense was actually committed and that's why our point is that if you can simply submit a police complaint it's completely of violence you are what we look to in order to determine a crime of violence is the elements of the offense and here are the elements of three point one are overly broad so the actual conduct that may or may not have transpired in this case is a relevant under the category approach for purposes of determining whether or not a crime of violence has been committed but some of the circuits so it's had pointed out since that we're looking at conduct here we don't have to follow the full categor ascertain what the conduct was what the trial court so for example in it you could give you could use the conduct like a shepherd document to select are isolated one of the elements or even with a divisible statute you would normally have a th and then the problem with picking one of the visible in the visible portions but instead here in this nonsense the minutes that then you can use the conduct to isolate one individual rationale put forward by someone not the sort of it's just as a matter of correct legal thinking not correct well i think st of all judge that the notion that we would be creating two different tests for prior conduct and current conduct i where you are and i think that the application of it simply suggests that the district court's not stuck with the conduct that's admitted for example in a state court proceeding like here so the district court could hold a full final revocation hearing have the government present additional evidence and if they want to prove conduct beyond what's been amended to you in state court they can certainly do that so i think that's what the the application notice suggesting the application also directs the court's attention to forty one dollars which requires the finding  judges again i would i would look to the language again on the application though and then a direction to conclusively before we one point to which which from the plain reading of that insinuates certainly that accountable for approach should apply and  intimidation the same can include threats to property and emotional harm as well and then obviously psychological violence doesn't apply as well i see that my time is up so unless that ford has any different questions and m based on the facts that were actually admitted by the defendant if you can look at it what did he admit he admitted that he attempted to commit at three hundred and one now based on that and looking at the fact that he denver disputed that it was his girlfriend defendant what we have here was had was a sworn criminal complaint and when you look at it if you look at page six it describes what had happened in this incident where he grabbed her with his hands around the abdomen took her cell phone away grabbed her strong about and the female victim was present at the proceeding at the moment so hard work oh oh in our case no but i'm saying as based on the evidence that was submitted there was evidence submitted on to what we had was a probation officer who testified which she testified and had spoken to the victim herself and got obtained information what had happened and spoke to the police officer oh and here we had a police officer actually present at chain here is the victim something happened to the victim the victim spoke to a police officer who swore out a complaint correct then a probation officer spoke to one or both of them both of them both of them and that is enough to establish that the conduct involves striking the victim that is correct so if that's correct and we can we contact who cares about whether a real one was reclas not it doesn't matter that's the government's position i mean either it's thirty one or three two it doesn't matter because it was physical contact it once you get to three i want to go to the you done phase two hurdles because if you say it's real one if it's if it it's overbroad on its face so you need to show either that it's divisible and you can pick an element using conduct or you got to show that even if  invisible you could still pick a means using conduct as a matter of law well but in this case what we're saying is and you're raising up in this case it's government position is that irby never address the issue that we're presenting before this  or was never presented it looks like before everybody and that under the guidelines you look at the actual conduct and that doesn't appear to have been presented to irby automatically assume and just apply like ok and like you say we can use the actual conduct to do in the case of let's assume two real one is overly broad and indivisible and indivisible indivisible then  would not have an offense that would be proven it's our it's a government's position that we if you look at the actual conduct and based on actual conduct the court can determine whether there was a crime of violence in  a government's position is when you're looking at most circuits are several circuits have done like courts excuse me carter the rd circuit where they have been doing as they have been looking at the statute itself just taking does it have now now i assume less favorably government that it's indivisible so instead of two elemental prongs we have two individual means that would normally be a roadblock that would normally and the  conduct to do what we could not do in the apple conduct which is select and isolate one of the means being a means that is violent exactly that's what golden did in this case that is what we're looking at several cases that the government has cited in  seems to me that and if that's if that's your position then i guess i'd go back to the evidence that was actually presented and even though it's certainly a lesser standard than the eviden judge after hearing the testimony of the probation officer and the judge adopting it so we do have a consistency and yes it may have been inconsistent or the probation officer couldn't answer some of the questions i mean one of the questions i asked where was he where was this officer from what district so your honor in this case both those are next to each other i mean it could be either quantum or silliness if you look actually this witness the actual the excuse me the victim in salinas and the officer was from guayana and why do we know that is because based on duckett again you look at sixty six of the panics that is where it stated the charging agent is from wyoming so i mean there were some liability right and alive and that's why we're saying we're liable because if it's a sworn statement and there's case law to fact found f which is from the st nd so are the ones that say you can rely on sworn statements and in yes well you're i i think in this case it's wrong because you have to look in the context of a revocation the reason why stay what they do is they do actually kind of the same thing twice they look at whether committed you know what's the state local crime and then what they do is they have the revocation then they do it again you look at this again the crime whether what what type of crime it was and then you look at what was was it a crime of violence or not and then apply here and the aspect of categorical problem now here like a state what are the guidelines state say you plan to determine the greater violation you look at the actual standard because it doesn't it's not like when you're looking at the guidelines whereas a prior conviction when you're looking at two under the immigration aspect or you look under that far as i ask because it says a prior conviction here what we're arguing is if you look at it it's more relaxed even they have their own guy langar anges their treatment of how they had the opportunity to determine if there's going to be a regular sentencing or do we have to look at acl card that anything else  nature of revocation is totally different than sentencing and that's why what we're saying is i think we have to focus on the fact that actual conduct should be applied if not then what do you do that you have also a car a rd circuit has been doing they look at that the a fancy itself what was it what was the conduct in relation to is there an element of violence or crime of violence involved in this case i'd like to just make two brief points st at the preliminary hearing the magistrate judge is simply charged with finding probable cause to determine if a if an offense has been committed beyond the probable cause standard it's not of proof positive determination regarding extermination beyond a preponderance of the evidence sort of look to that as some sort of you know solid solid finding that mr had committed a violation of three point two i think is misguided nd the the government's reliance on carter is also misguided carter holds that a revocation court can consider a defendant's actual conduct but only in determining whether or not they ha broken the law and thus the terms of their supervised release it then holds that it is quote not enough to say that a defendant's actions were simply violent or forcible without pointing to a crime containing those same elements and that's simply another way of categorical approach applies in the supervised release context if you look to the th circuit in united states versus reagan and united states versus mcmillan they unequivocally hold that the question of whether or not a supervised release violation is a crime of violence is determined by a categorical pro choice so i think this court is consistent with the majority of the circuits that are holding that the cattle approach doesn't apply in the revocation context so in light of that the final revocation hearing to present additional evidence in fact defense counsel asked i don't know what the government intends to do during the final revocation i was a blanket invitation to present additional confident evidence on this issue if they so choose instead they