with us from time to time you're probably seeing her name on opinions in the eleventh circuit judge astonied hails from the united states court of international trade in new york a going with us this week to help us decide these difficult cases thank you you're welcome john to allison and we have four cases that are scheduled for argument this morning and i see that counsel are ready for the first case it's united states of america versus manual toronto arena and the shepherd is here for the appellant mr christian and his co counsel are here for the government and the shepherd you may begin good morning may it please the court the alternative phrasing in george's entering an auto statute has never been articulated as a stablish ing defaced upper telamon pts and two distinct offenses not under any state supreme court decision not under any decision by the georgia court of appeals nos pattern jury instruction sets forth separate elements or offenses and in the forty one years that this statute has been on the books in georgia not one case or other authority is a distinction between elements and means and mathis holds that where a disjunctive lee phrased statute sets forth sets forth different elements excuse me different means by which an offense may be committed the proper method for  evaluating whether that statute matches with a federal generic offense is the categorical pro approach or because the government says there is no distinction or those that has been the government's position prior to mathis i think mathis makes clear that that position is not tenable and here if we follow if the court follows the three steps described in dicta in mathis to assess whether the alternative phrasing contained in the statute describes means or elements that process fails to establish with the requisite certainty that the georgia entering an auto statute is divisible let me just ask you  question this business a peeking at the record you don't do that until after you've decided whether the statute is divisible correct or are not the process that matters describes in dicta sets out three steps for evaluating whether or not an offense is divisible whether or not the alternative phrasing lists elements or means the first step is to look to state law precedent and i think that myself and mr christian would agree in this case and that wasn't at all what i was asking you the judge peeked right repeat that the indictment to see what it was but as i understand it under aftermath this you don't do that until you've decided under the three steps whether it's the statute itself is divisible correct i disagree your honor i think that actually is the third step forth and mathis is this peek through step and that the first two steps are looking first  understand how a peek through can tell you what a statute is well how does peeking at the record tell you what the statute is i think that is a very valid question your honor and i think it points to to the reality that this peek through step is the least conclusive or helpful step discussed in mathis for the exact reasons that you're articulate and it's worth noting that the court and mathis used a very tentative language in describing this peek through and said only that it could be helpful which is very different than the language used about the first two steps which which indicated that those steps could provide some some definitive answers but the the way that the court in math is discussed the peek through was much more tentative the purpose of that peek through is not to do a jump start or short cut to the modified court categorical approach but merely to look and see does do the record materials give any insight as to how the state law works the court noted that it may not speak plainly in every case and i would argue that in this case it does not speak plainly and does not provide any conclusive or helpful answers as to how state law works in this case when it clearly the indictment narrowed the statute in a way so that it only referred to the theft so i suppose one might argue that well when it does something like that it indicates to you that the state statute is divisible otherwise they would a left everything in because it was only means well to respond to that your honor i would make several points one is that the peek through contemplated by the mathis court first of all calls for multiple documents it does not call for reliance on a single indictment every time that the court in mathis discussed the peek through it referred to at the very least an indictment along with jury instructions here we only have the indictment nothing further second of all the those record documents even looking at them may not provide clarity and as justice alito noted in dissent in mathis that just because something is specifically alleged in an indictment does not mean that it is an element that local practices may vary and that is particularly true here in georgia where georgia law requires that prosecutors  include factual particularly in an indictment that prosecutors in georgia as i understand it may not charge based on generic statutory term would agree that the state laws on clear in this case as to whether or not it's means or anonymous right i would agree that that yes your honor that it is unclear and that absent that clarity the record materials do not speak plainly and rectify that over on the nine categorical approach once we get to that point then under shepherd we can look peek at the record we can look at the verdict form and and the indictment and  the question judge astronomy ask is i'll just speak for myself i don't know the answer to that because the case does talk the majority opinion in math as talks about element and how can you determine by the charge whether it's an element or not is a difficult question but in math as mathis actually gives examples of what you can do and in masses i'm looking at math right now it gives  an example about virgil ring a building structure or a vehicle and and say that the indictment can say what it is that in starvation in this case we all agree that once you look at it that what was charged was that the theft ride will end my are you with me a few things your honor first of all i disagree that it is the case that if it is unclear say law and of state law doesn't answer the question then you can look at the indictment that the steps set out in mathis is you look first to state law which in this case is unclear you look second to the face of the statute itself which in this case my position is that the face of the stat of the statute itself is neutral with respect to the means versus elements and quarry and then as a third step what may be helpful not is to conduct a modified categor approach but to do a peek through to see does looking at the record documents in this case tell us how the state law works and in this case it does not tell this court how the state law works and i think as we might have a little different view  looking at the sentencing transcript and what the district judge that the district judge very clearly said that having considered all the circumstances of the defendant's conduct and the conduct in the united states and so forth that twenty four to thirty months and the sentence was twenty five months and the district court in this case said for all of these reasons and enumerated all of the reasons the sentence would be to say whether i'm correct or not on the eight level enhancement under the statute you're i was on the air harmless the air in this case is not harmless because the twenty five month sentence that was imposed as your own articulated would have been an upward departure above the guideline rank in the district judge said he w upwardly depart he in fact did not make findings that that he would upwardly depart or any findings that an upward departure was warranted in this case it's my argument that this case was not outside of the heartland of considering your repeated conduct in returning to the united states of committing crimes once you are here and then not abiding by the terms of supervision and in the state authorities that under the circumstances of this case in the under three five five three factors that even if i am wrong under the guidelines which i believe i am not and specifically whether or not that it point enhancement applies or not that this is the sentence that i wouldn't close in this case because of your conduct in the his three that you've exhibited so that the sentence scient and to impose what more could the district court say if it went back i think what is missing your honor are specific findings and specific specific conclusions that an upward departure sentence would have been warranted where as under the position is that's not specific enough that is my position your honor relying on united states versus melvin and i also think there is an issue here of the government requesting for the court to make those findings and i think that that a pellate review is an important right that this this defendant did not waive by virtue of an appeal and appeal waiver which the government has the power to to offer and and to to use to motivate  plea agreement in this case and did not do so and i do think there is a due process right here particularly where the case presents a novel issue of law as this case dead or i honestly reserve some time for it please the court the threshold issue before this court is judge black's question which is whether the sentence imposed was reasonable because the district court clearly stated that it would have imposed a twenty five month sentence regardless of the disputed sentencing and hand request that the court makes this if it findings that would support and upward variance the government during the sentencing hearing the government the district court was explaining its bases  for what would what sounded like it would be an upward variance sentence at that time that the government asked the district court to make clear on the record if it was going to in fact impose a sentence based on thirty five fifty three regardless of what the sentencing guideline range was to make that clear so this court would be clear under its precedent kanan where the district court's finding was depended upon the sentencing guidelines or was irrespective of that and there is no it is the defense issue is with cain and cain is the law and it's appropriate for the district court to make those findings in light of can and cannot have made them any clearer and i know the government makes that argument from time to time but is that a way that a district judge can insulate her sentence from appellate review by just saying that all the time even if i'm wrong on the god lines i would impose the same sentence anyway period and so therefore announcing errors in the district court would be harmless i think under cain the effect is for to save this court's resources in evaluating sentencing enhanced ment's or not based on the district courts ultimate sentence not being based on them that said the district court in this case made it very clear that this was a very rare thing for this particular judge to do this judge's not do this often but he was doing it in this case because of mr toronto's extensive criminal history and more significantly his extensive immigration history counsel don't we look at the supreme court opinion last year of elaine and martinez and the supreme court with my understanding the  subtext of the opinion that appears to me personally that the court was addressing aat judge wilson's concern and that is wait a second you look at the third  rides and that and the supreme court said that under plain air review if it substantial rights it's going to be a constitutional violation if there's an upward departure but this is a pretty the supreme court was in that same case states that the record in a case may show for example that the district court thought the sentence it chose was  appropriate irrespective of the guideline range so it left that that that open and so i think the question is here is did the court say enough and your honor i think the answer to that question is yes the court plainly said enough the district court said that it is not often the case that it finds that it's sentence would have been the same under thirty five fifty three a regardless of the application of a sentencing announcement the court said that very clearly and gave its reasons and those reasons the frankly what they did with the district court said was that the thirty five fifty three factors quote compel and quote a twenty five month sentence because mr toronto entered this country seven times illegally was convicted of crimes four times while here was convicted of the two felonies at issue in this case during prior periods of probation and that his profound disrespect for the law of the united states warranted a twenty five month sentence which is not an up or departure which is a even even if the defendant were correct on his interpretation of the sentencing guidelines the district court sentence would have been only a four month upward variance a small variance and one that is appropriate unwarranted given mr toronto's extensive immigration violations and criminal convictions i like to ask you about the mathis question and it seems to me this long series of cases we've had is the issues to get things down to a narrow view of this exception to the right to jury trial where you have a previous conviction that is clear about what it is now much of the supreme court saw that clear about this but there's a good logical argument based on the way they've been going that you don't really look at what happened in the indictment for the purpose of seeing what he was convicted of until you actually figured out whether the statute was divisible i mean that's a good logical argument that can be made from what the supreme court has been doing in these post to print be cases with this exception so why why isn't that correct isn't that the sense of it that you got and you have to do before you do anything you have to find out whether this is a divisible statute that's what your counsel argued i thought there was a lot a logic behind it your honor i think that you are correct and in my defense count and defense counsel is correct that you first have to determine divisibility however now before we look at the underlying record came after this ability now since mathis looking at the underlying record is part of the disability analysis it's the third step because what we're doing is searching state law both case law and statutes and then searching the underlying record to see what do courts do in terms of jury instructions what do prosecutors do in terms of charges to see if these are two separate elements or not and the key language in math us is quote an indictment could indicate by referencing one alternative term to the exclusion of all others that the statute contains a list of elements each one of which goes toward a separate crime that's part of the divisibility instructions in mr trotter his case because it was a guilty plea but if you look at jury instructions to the extent that you can find them in these cases and i provided an example of the jury instructions in the pound case it seems to be that juries are charged either with the theft intent or another felony intent not both similarly as you read all of the cases and i've read all seventy nine of them that have to do with the state courts interpretation of this georgia statu kidnapping so although we do not have the first prong of the math this sort of toolbox we don't have a state case that says these are elements or these are means the third step of math this is very clear cannot be clear that these are all turn of elements and likewise the second mathis step is to the second method steps as look at the statutes text look at its structure see if we can determine if these are elements and this court has consistently held when you have a single statutory phrase with alternative terms and the disjunctive it's finite those are alternative terms that's a strain and that's what you have here only two mens rea is it and it is it it's an exhausti in hansen's sentence you can be convicted of violating the statute and be sentenced to less than a year of prison are the judge has the discretion to sentence it as a misdemeanor yes all of its briefs and the district court that's not correct because the defendant here was convicted of a felony and was given a felony sentence and under the law that's adequate to qualify as an aggravated felony and why is jokes i think your honor that's the case because what matter is what was the sentence and what was the conviction and what was the sentence as a defendant here and if we look at the attachments to the sentencing memorandum here the records of conviction of the defendant both clearly check there's a checkbox this is the felony sentence for a misdemeanor they both clearly check that it's a felony sentence and then they both clearly impose a sentence that's more than year so there's no question the defendant was convicted of a felony and he has admitted that much through the entirety of this case but if this were a misdemeanor sentence we may have a different issue but we don't because mr trott a sentence was reasonable regardless of the disputed sentencing inhance meant this court should affirm a sentence without ever reaching the decamps mathes analysis under its precedent in keene and if this court does reach to the camps mouth this analysis the record in the law is clear here that under the second mathes tool the text and structure of the statute and under the third mathes tool that peak at the indictment that the georgia statute is divisible and that the  compare the state statute that to the generic version of an attempted theft offense and here everyone agrees that because we have these alternative mens rea some of which might be a generic theft and some of which are not that we don't we don't have an answer there so then second we move to the divisibility analysis and mathis gives us three tools to conduct the divisibility analysis first is a state case answer the question we don't have that here second does the structure and text of the statute tell us whether these are elements and again here i think it's critical that we have a single statute phrased in the disjunctive with only two alternative mens rea and this court consistently has held when you have that type of structure you have are tired of elements a contrary structure which is which is the howard case the defense relies on is where you have a statute that sets forth turn of terms and it points to a second statue and that second statute defined some term or terms in the first and that definitional section is not exhaustive and disjunctive whenever you have that type of structure that multi step structure this court is held those are not elements but that's not we have here we have just the one and then the third step of mouth this is the peek at the record again this is new aftermath as now you can look at the record you can look at the indictment and you can say does that tell us anything about whether these  let me ask you this suppose you went through all these three steps that justice kagan gave us and you come to the conclusion that you don't know the answer then since this is in derogation of the right to a jury trial would you then say ok we have to if there's a deep opposition must be no alan that it's not an element is that the right way to do it i understand you don't think we're at that point that you think you went under step two and three but suppose you have a toss up is it in is that what you do well i disagree a little bit on the jury point but i think the answer is the government bears the burden of establishing  i don't think we need to get there because the threshold question which judge black initially asked about the district court making clear that its determination would have been the same regardless of the implicit billeted of the enhanced that the district court could not have been clear and given mr toronto's record of seven times being found unlawfully in the country and four criminal convictions including two while on probation a twenty five month sentence is more than reasonable under thirty five fifty three and your view is that saying something more like i know this is an upward departure baryons but that's what i would do that that's unnecessary berkut i think it is unnecessary verbiage and i think that district courts especially those who've been who've been sentencing defendants out prior to the guidelines they're very focused on the thirty five fifty three factors and they give them careful consideration in the district court did that here since you're already been  has been removed he was removed just one day prior to this court's asking for supplemental brief or thank you counsel thank you that is that's one question and just kind of procedure he's removed like he had three months left on his sentence right so is the idea that you remove him before he's eligible for like release to a halfway house or something is that is that how this goes that ice comes and gets him just prior to  less restrictive confinement the process as i understand it your honor is that he serves his entire term of imprisonment which can be discounted by up to fifteen percent for good time credit and so once  yes i think that the key case here is one that has not been cited by either of the parties which is this court's decision and bizer hernandez and it's it's not published and it's and i think there are some issues with its decision which makes this a difficult question that quote that case held that release from imprisonment and removal from the united states did not move the appeal of an individual like mr tirado who had  conviction of someone for a legal reactionary and a sentencing issue before the district court main good was in appeal of the board of immigration appeals decision to this court and the really the rationale unmingled was that because the individual there faced a potential collateral immigration consequences if he ever returned to the united states of having this aggravated falun felon status attached to him and because the board of immigration appeals decision would binding on subsequent immigration courts decisions that status should be appealable here the district courts determination at sentencing that mr toronto's an aggravated felon has no collateral consequences of any kind because the board of immigration appeals and the entire immigration system does not look to a district court sentencing decision as anything more than persuasive if even that our will work and the rule for older thank you m scott and united states are says are either one of those immigration things neither of those are and there is a published decision united states orses versus or reagan that addresses the effect of deportation and whether that renders an appeal moot and notably in in and it determines that it did in part based on the fact that the controversy still exists but notably one of the considerations in oregon is that even after deportation a supervised release revocation  is not too remote or would not rule is still possibility and the court specifically looked to in that case the defendant's numerous priory entries as a stablish ing as a factual basis for the likelihood of re entry and arguably the facts are the same here you know i think it's probably a good if we permit you to file supplemental briefs just addressing  government's position seems to be that under mathis that the peek through here answers the question and i think that first of all the mathis court made clear that the function of the peak three step is limited and that it usefulness is limited and the question is the court has to ask in doing a peek through not is what are the facts here what are the facts of this case but how does the law work and i think an example of how looking only at an case charge the defendant with only with entering a specific building and if a court in a position such as this court were to look only at the indictment in that case and would do as the government would urge here and conclude that the fact that the indictment charged a specific building means that the type of structure is an element and therefore the the statute is divisible well we know that's not the case and mathis because that statute is indivisible so there is a circumstance where we have a statute that is unquestionably indivisible so says the state supreme court so says the united states supreme court but looking at the indictment it charges one among the alternatives that are listed in the statute that doesn't mean that those alternatives are elements and i would also disagree with the government i too have read every case i can find that addresses this statute and there are some cases some georgia state cases addressing this state entering an auto statute where the crowd the intent is described as intent to commit a theft or felony the same language that is in the statute so it is not the case that at all times the state court has described this as either a theft or a felony there are cases describing the intent as to include both both means and if this court were presented with one of those indictments presumably the peek through would reveal that the alternatives here are means so i would just make the argument that the the fact of what is charged in this case the prosecutor's decision in this case should not determine the state law it cannot be that the prosecutor's practice and how he or she drafts her indictment makes the decision as to whether or not these are means or elements that that cannot be the case and to the extent that the government argues that the finite nature of a list of alternatives that that alone established those that those are elements i think the court and us camps tells us that the mere fact of a statute containing or does not mean that the statute is divisible and nowhere in mathis does it say that if the alternatives are stated as a finite list that that renders them elements as opposed to mean and i'll call the next case it