then and there will resume to hear the last case we have committed to allow counsel to have the st two minutes of their argument and  since we've got the clock showing i think we've done a pretty it's a habit that this otherwise i know you're familiar with our traffic light system and i will inforce it so  store are you able to hear her she's a little low but i turn about all your on my computer so all right all right i can hear you i just wanted to be sure everybody have the the juvenile clause you cannot look beyond so that's two questions and birch say that you could do it with regard to the juvenile clause not just the elements clause and nd of all has anything come out intervening which would call that into question suhler so let's talk about that a little bit so a lot of your argument if you go to see a way to johnson and we know that a johnson claim is a claim that there's an appropriate reliance on the residual  and say no but how it would be even though did we not say where that exact kind of argument was made that we not say that that is not necessarily appropriate the diskettes part of the argument and then how do we get rid of it i had to get over tenses which use the terms acts of juvenile delinquency involving so when at involving something which is not the same language as is used to any of the other clauses that i could see so happy how how can you read t delinquency or it's a lincoln c finding or a juvenile delinquent but isn't the use of the term at involving indicate something different than a crime which is the term that's used for the residual clause for i'm sorry for the  has to show that you know going back to that time he didn't have three other convictions that could have and the fact that it's a historical analysis perhaps helped with the question about is this just a backdoor way to raise the camp's claim that we already said we couldn't because no you go back to the landscape of sentencing and at the time of sentencing could this aggravated assault have been a predicate and the answer to that is yes it didn't need to be back then because the defendant never objected to the three into what sort of divisibility question and or interesting questions about how we should interpret this juvenile adjudication provision because we really have to start with the historical question of whether there was any indication that the defendant was sentenced would have three paul thank the actions but being now teaches us that that's a question of a mystery so going back to the landscape at the time two thousand and three is a very different question whether the court could have relied on the battery offen medication this is i guess my point is didn't you tell the district court that you weren't relying on the battery on commitments offense you conceded that away and then you moved on to the assault with a deadly weapon being then is now controlling precedent of what the defendant burden us and to the defendant has that burden of showing that he does not have three additional qualifying offenses whether we were right or wrong and realizing that he still has to show that under  it's interesting even under today's weather a battery offense could have profited as an open question actually just listen to an oral argument yesterday and miami in the santos piece and that was going to raise the question of whether florida battery is s if you're right about that that it's not waived or you have to concede the point and that has to be done i knew as a matter of historical fact shouldn't a district court make that call and not us i mean which we are not we were not the recognizes that the district where didn't ever say what he relied on that's because it was never an objection so we don't know that certainly the record doesn't have to have any direct evidence that there was this was a residual force and now being also contemplated if there's it but then when my colleagues was able to help me find it through a district court docket somewhere and that decision doesn't even really say that like the way in the twenty eight jail letter it says that the court put it that it did not categorically follow planted the elements claus analysis that you know that element comes wouldn't have applied and in fact you know back to this time we're talking tree johnson so we don't yet know this is the twenty and battery by touching downs and so we don't know at this point that a battery by touching doesn't require adequate right so why can't the sentence just says you know what i've i remember that day well that's my wife's th birthday and we had a big blowout that particular day and i know i was relying on the residual costs for every single one of those i've seen it over like that out of miami for example where the judge says i assume residual clause for all of these cases so i thought well how are we to be able to know what's in the district judges et with regard to that and why would we make that finding in the st instance where it could be a finding of the similar to the case we have here because the georgia statute berge just with a just a deadly weapon it didn't say fire and so in order to get beyond what kind of deadly weapon it was just just like here the court had to consult the shepherd documents explain that it wasn't working well for a moment the burj because it's cited under a different provision and you know in order for intervening supreme court to have overruled this court's prior precedent intervening supreme court decision has to be clearly on point look at him as a matter of historical fact what happened in front of the district court judge to see which clause a clause on step two of beeman should we be looking at the wall at the time of sentencing are should we be looking at the law today it seems and i think that's a question because it seems kind of incongruous to me to say on step want to be human we're looking at what happened at sentencing and then the step to just fast forward whenever the issue happens to be with what would what would your position be on that because we're looking at the cool question under beamin is it johnson air occur or at the defendant's original sentencing step two of the men also should look historically where there are three convictions that kind of  under the landscape that the defendant was sentenced with this conviction of content that should be a historical inquiry now if we also think about current law and we know under current law it also would count which i think is still true today given that burgess controlling you know that proposition that that particular type of drug conviction was a serious drug offense which was after all which was not historically which is a historical for what it is another which weeks we seem to cite cases after the determination would have been named under right and i think that makes sense given you know the question of john simply really shouldn't be a backdoor way of raising a matheson to q and still if we know that what we really need to look for is the johnson claim that should be a question of historical fact of what modified categorical approach when the statute is in divisible so lest there be any question about what bridge says those opinions make clear that you do not reach the documents for an indivisible statute she will or told us that involving does not ring in a factual approach involving demands elements based approach is court has analyzed other statutes whenever they do bring a factual approach in found that in mockery in which  prove there there is no gas that this court if it followed what the government suggests will be the st court to find that