good morning and welcome to our court at the outset and judge hall and i wanted to welcome again and introduce to you our visiting judge judge susan webber wright who has sat for many years with great distinction on the district court in in arkansas in the eastern district of arkansas she was appointed by president bush in one thousand nine hundred and ninety eight she served as the chief judge on that and ninety eight until two thousand and five and we are delighted to have her with us and help us with our work to brief observations and then we'll begin with the  case which is the united states versus stare and lee you're familiar most of you are with our lighting and timing system that's a clock that keeps the time for us there's a green light which means for see the yellow light which is a two minute warning a red light which means your time of his one of my colleagues was fond of saying the red light was not aspirational we'd be much observation you can safely assume as you proceed with your argument taishan this morning that we've had a chance to review not just the briefs in the record excerpts but in many instances we've had a chance to go to the underlying record as well so you can go right to the heart of your argument with that will begin with us for the daringly missed the summit welcome come on up and talk to and both were based upon pleas of nolo contendere this is the very st appeal and which we have specifically preserved the argument that shepard does not authorize the use of a nolo conviction to prove a violent documents as in this case is inconsistent with the reasoning expressed in shepherd to support the modified categorical approach in guilty plea cases the modified approach is warranted for three reasons the pleas involve admissions of guilt where the pendent necessarily admits the specific crime committed and on the record to the defendant's admission let me just ask you i was not issued can vary given what we said conviction was affirmed was because the core found that again he admitted very specifically certain facts in the arrest report that we don't have here the arresting officer said that again he was arrested for bodily harm battery and the arresting corps stated very they're arresting officer stated very specifically that he was relying on the specific subsection of the statute that  that identifies bodily harm battery also i would note that a no local board said in that case you might be right about the argument but look to me like it was foreclosed by what we said gandy and i want to read some of the language to you the court rejected the argument gandhi had pleaded no law and he challenged the application of his modified categorical modified categor approach to his no low play the court rejected the argument and the court explained and i quote that we treat florida nolo convictions no differently than convictions on guilty pleas over except guilt for purposes of the sentencing guidelines and it concluded that candy's argument that we may not consult the factual basis of the kno had no merit that struck me as holding victor i could be wrong about that but if indeed it is holding then does it not foreclose your argument no no you honor because we in fact concede that the prior convictions are convictions but the problem we have here is that the modified categorical approach requires more than a conviction it requires a conviction for a very particular kind of offense and in fact the issue number one which we raise in this case was not specifically raised in gandy what gandy was arguing that  considering these arrests reports the court shouldn't consider them because they were not specific enough the argument in our nish what is there a shepherd that says let's just hold aside candy for the moment ye what isn't there in shepherd itself that says it's limited to guilty pleas as opposed to pleas of nolo contendere not i ask you that because we regularly consider pleas of guilty and knows to be functionally equivalent for a variety of purposes there's nothing in the shepherd that says that your honor and we are not anything in shepherd that even implies that there's nothing in shepherd that implies that no low please do support the modified categorical approach because i was always taught that the holdings of cases must be construed narrowly in light of the facts issues that i couldn't agree with that morning yeah i'm just i'm just asking you whether there was anything in shepard itself that said or implied that a guilty plea and a no are to be treated in different ways and your answer is no no and my only contention is that shefford itself was confined to guilty pleas because that's what sheppard talked about but let's go to the other issue candy also how the courts can work to arrest reports incorporated into a plea agreement when using the modified categorical approach doesn't that answer that question which you've raised as well  honor because i the way i interpret gandee it looked to the arrest report and but the conclusion was based upon different admissions then we have in this case the admissions that in a fight the arrest specifically as bodily harm where we don't have that in the two judgments that are at issue in this case if i'm if i may let me go back to some i have i'm confused about that i'm quoting from andy it says the incorporated arrest report speaks plainly that candy's offense was bodily harm battery the report began saying that it discusses there seems to be focused on the arrest report for the finding that it was bodily harm odd pattern is that not argument is that the evidence in this case even if the court considers the rest report the evidence does not speak plainly as did the arrest report that was at issue in gandy ok that's a different two so it might be helpful at least you're speaking for myself if you address the rd one ok yet the rd one your honor is that in gandy the court considered rush reports with which t defend it admitted as a basis for his plea agreement and those rest reports stated the officer wrote specifically that mr gandy was arrested for battery by intentionally causing bodily harm and those  arrest report also said that identified the specific statute the very specific subsection that refers to bodily harm battery and that contrasts with this case and the battery by the pregnant person risk for specifically to battery by touching or striking and i think in the court held that the touching or striking is invisible and the government now concedes that point so if the court gets to examine the rush to rest reports the weight of that evidence that was offered by the government here in this case is is in inadequate or at least too ambiguous to determine that t i'm looking at the exact exact reports and they are in the government's exhibit one and the government's exhibit three but prevail you need to win both you need for us to take care  those convictions isn't that correct actually no because there was one conviction for for a controlled substance of knock out one of the government loses on any one of the two you see i believe  t let me ask you a question i looked at one of these arrest reports and i read the account johnson said that she and her boyfriend had been arguing in the hotel room when lee pushed her off the bed on to the floor leave then struck and pushed johnson several more times in the room the altar cation then moved into the parking lot where lee continued to strike in co  cording to the witness johnson advised blah blah blah johnson was then taken to baptist care hospital and so on strikes me as pretty violent  encounter when i read the underlying facts and if i showed the underlying facts in the arrest report to any ten sentient human beings going from any city in the republic they would say are you actually out of your mind that's not a violent crime i'm just at a loss if i can look at this and i could look at these accounts and gandy tells me i can  what am i left with i'm left with the intellectual pursuit of the proposition that because the title in the arrest report doesn't make clear whether it was  touching or bodily harm and it's theoretically could be because notwithstanding the fact that i know with certainty from the report that he hit her over the head he pummeled a pregnant woman he toss her off the bed that's not a crime of violence and therefore may not be considered for the purposes of the on a career criminal act when the whole point behind the on a career criminal act was to say violent recidivist should be treated more harshly than not but these were considerations that a court was required to take into account because the legislature said so what am i missing here yeah i'll be with respect to the accounts that appear in these arrest reports yes i'll be very quick i know you take your time to be out o the issues perplexed me for a long time i know what i'm obliged to do but i have this right here in black and white how do i ignore these mouse and so on and yet under under florida law those accounts also those facts those even those violent facts also support a conviction under florida for touching or striking and in fact they support they support both and therefore you have an ambiguity that i have no ambiguity about what happened you have no ambiguity that they're violent correct but you do have an a which type of elemental crime mr lee was convicted of a argument would be a must it fights the subsection of the statute no florida battery c in but what i would require is the judge's finding that the defendant committed the crime by bodily harm as opposed to touching it striking and if you don't have that you have an ambiguity as to which part of this purposes ok and we're now on the rd prong of this he pleads no contest but does not dispute the underwriting allegations as laid out in the arrest report and indeed accepts them express in the arrest report and the police except the accuracy of the statements and because the underlying violent acts could support c e o radically the charge on doing a touching it and alternatively could support the charge under a violent crime designed to inflict bodily harm and because at the time that the sentence was imposed the state court really had no reason to sort out the difference for purposes of the sentence we don't know with certitude which it is and therefore he should not be treated as an on career criminal that's correct it's the argument yes and the law is often often theoretical and particularly so under aka to make any sense to you i only falling that's an unfair question no it's not an unfair question but your honor i'm only trying to follow the law i understand and i mean i genuinely do we share it so your argument is if you look at the stuff here it's unclear and it's got to be clear because the supreme court says we have to be able to tell with certainty because of their words and we can't really tell with certainty here you understand the very right do indeed thank you thank you good morning mate please the court jordan learned on behalf of the united states i wholeheartedly agree with the court that as to the st two issues presented in mr lee's brief are the government agrees that those are for clothes by gandy so i'm going to jump into the heart of the rd issue which this court had just been discussing and the st thing i would like to new is mr lee's argument is premised on the assumption that the state senate in court has to make an explicit finding or there has to be something in the record that says the state court made a finding for bodily harm battery but that is directly contradictory to the holding of d s calderon which explicitly states in the opinion that a finding by the state's a missing court is not required what matters is whether the district court can we just there on the crime of conviction from the shepherd documents absolutely your honor the separate documents in this case the arrest report which the district court in this court has properly alleged i'm looking at one of them two this is a document the separate documents or doc thirty eight so i can tell from that document cannot no you can't because there's even though they characterized the charging offense as being a touching or a striking and even though a touching not qualify absolutely or are to tell with certainty that he went down on a striking rather than a touching well the government's position would be that we would have to show intentional bodily harm because the at the touching or striking constitutes one indivisible element we have a case that says touching not striking is divisible that that's correct that would be bron your honor and ask for on the good the government is not inclined to rely on br it's overruled or abrogated basically to the point of being overwhelmed before i would be free to discard it don't you agree with that i mean i do agree with that your honor it's the government's understanding is the analysis and mathis about what really constitute elements as opposed to means if you take that analysis and you intellectually apply it let's just assume for the purposes of our question your colleague is right the statute is divisible it's divisible between the touching on the one hand and the rest of it on the other let's just start with that assumption to him whether it's divisible or not divisible between touching or striking he says is touching or striking or bodily harm he's saying if you look at the shepherd document you can't show that it's not touching offense i mean i mean the fact the matter is almost every more aggravated offense but necessarily prove all of the lesser included so he's saying you can't tell whether it was  touching you can't tell if it's striking because the conduct constituted a violation of three ways or two ways to fuse say touching or striking that's his argument while turn back to how do we tell us judge marcus is question how do we tell here what the conviction was for right so you would look at what the what elements are supported by the factual basis mr lee in this case has agreed and page thirty two dollars of his brief that the arrest reports in both cases allege facts that satisfy the element of bodily harm battery which is the government's position is how these qualify now to say that we would have to prove that's one of the character of crime in florida which is another and the statute is divisible as between touching and striking on the one and bodily harm on the other if it was a touching or striking that was a crime for which he was convicted you lose you agree with that yet if it was bodily harm of you when he agrees with that you were allowed to look at the shepherd documents to see if the sentencing court can discern whether it fell into this category or that category the argument is once you look at those documents you can answer the question you can answer the question as i said that the underlying facts are as violent as can be but that doesn't answer whether since they would support the touching the striking just as well as the bodily harm whether it's found the one or the are other and the supreme court has told us with clarity that we got to be circular that we know what the conviction was for you agree with all of that i do and all that but i so how do you get around the fact that take one of these charging documents for lee's aggravated battery it alleges quote that lead it unlawfully commit a battery by actually unintentionally touching or striking said person against her will or it's put in the disjunctive by intentionally causing bodily harm to the victim who was pregnant and who need or should lead a new or should have known was pregnant can't tell from that can you not ok then the arrest report specified that the offense was aggravated battery quote d v under the same statutory subsection then the probable cause allegations  extreme and there's no further information that was that was provided i looked at the felony battery sheppard documents and one of them say at the underlying facts which are laid out and they are violent in the extreme and plainly would support bodily harm but it is not the law or clear that i have to be able to tell with certainty that the underlying crime the elements here were elements of bodily harm not touching and striking and if the answer is yes all these documents clear for me t be able to say that i would agree that the answer to that question is yes and our response would be that these documents are sufficient enough they have to be clear and bright they are clear that the elements that mr lee agreed to a factual basis which has to establish the elements of his of what he's pleading to and that to be factual the fact that he agreed to establish as he has agreed the elements of bodily harm battery and i would say and this is where i would point the court to the recent opinion in victim that were consistent with the batteries and this court held judge marcus you said the opinion that let me come at it differently i suppose this is the fact that we're still looking at the question of under under florida law this question of aggravated jones gets into his or an argument with smith their two friends to sit in a bar and jones take a bottle of liquor and smashes them over the head no question it is replete with violence and he's charged under this statutory framework and the allegations are laid out in detail they would support either touching or striking it struck them they would support bodily harm as judge will put it one is essentially a lesser included of the other and they would support both but if the our if the charging documents don't tell me which it is or let's suppose the charging documents tell me with clarity that he pled nolo for touching or striking i know it would support only harm what result could i say with certainty then i think in that case the government would agree that right because you're pleading to what you're charged with in that case that he's only charged with touching or striking battery then and he did you know he's simulated facts that establish the elements of factors like that i think in that case the government would agree that we're not certain even if the even and that was kind of what the yet there's no question that disease offenses would support bodily harm right and that's in fact the how the state charged it as both as either or and so even though i just said battery  you believe we are to say that if the underlying shephard documents support either touching or striking or bodily harm and they really are violent in nature and the charging instruments is folks touching or striking and bodily harm or bodily harm that is enough to say with certitude that it's court rendered than yes that he has been convicted of bodily harm battery not withstanding the fact that he may have also been convicted of touch or strike battery and i'll point the court back and back to the direction of d s calderon we don't need an explicit finding of fact from the patterns before that would when the court viewed the battery well as the court still does with a battery as divisible between catching or striking and there have been factual patterns deers calderon is one where the facts would seem to fit touch but are alleging the arrest report support both charges that are charged the charging document would be without any doubt at all as the defendant this case does not argue the arrest report does not satisfy the out that he was charged with bodily harm battery as well and that the fact that he says he admits that i support charges he just said but therefore that creates an ambiguity as to which charge he pled to work in the government's position would be where the facts are not in dispute where they clearly satisfy the elements of both but there is no ambiguity a defendant can if he so chooses choose to plead to both alternatives and that would be dictated by what's in the factual basis and in this case that's both i see that my time has  judge marcus you've been very generous in according me extra time so i'm going to be very quick i just want to clarify a couple of things the government relied on the diaz calderon case correctly for the statement that the federal district court in sentencing can make a finding for the st time that defend was convicted of a violent felony offense and i think it's time for the court to recognize that that statement should be regarded as abrogated by mathis i think the court i think the law is clear that the federal court can do no more then determine from the record which offense the defendant was committing he pled to both ways of committing the battery on a pregnant woman fan that's that's interesting i don't know of any case law has ever addressed that point i actually think ambiguously identified can these offenses a bodily harm type battery yes that's the difference yes if there be one my last point right yes your honor my last point is that i just want to clarify i'm sorry what do we do with the case of united states believe arraigned this decided just this year in verint apparel of the court held that the defendant's felony battery conviction qualified as an act of pr on the basis of sheppard documents stating that green had falsely imprisoned the woman he was in a domestic relationship with for nine to ten hours during which time he repeatedly hit and struc object and probably in fact conceded that those facts the stablished of violent felony predicate and we don't have a concession in this case so i think the argument in this case what do we have a concession about in this case i'm sorry i'm  going now back to the difference between a no a plea and a guilty plea well that's one thing i'm trying to avoid that right but i want you to assume for the purposes of our question that we think that it's gone because it can be rejected established a violent felony and we don't have any concession in this case because we say the facts stablished an ambiguity we say there's an ambiguity the arena by his own conduct