south carolina assault and battery with intent to kill is a violent felony under the act as elements walls and that's because of the intent to kill element transforms the otherwise nonviolent  assault and battery element into a crime that meets the act of violence forged requirement if you kill somebody you necessarily use violent force if you intend to kill somebody you don't necessarily intend to use violent force so if you intend to use violent force and assault somebody at the same time when you have necessarily either attempted threaten or physical force against another person within the meaning of the act both the sixth circuit and the first circuit and edwards and in ray vaughn have held that similar assault crimes that have aggravated  attempt in tents such as intent to do great bodily harm or assault with intent to murder constitute violent felonies under the acas elements clause and this court in smith and there are other courts of appeals that similarly concluded that other offenses which have aggravated intent are also aggravated elements such as assault with a dangerous weapon also meet the act as you know and has been used relates to the words attempted or or force well that is correct the edwards decision from the first circuit specifically held that the state assault with intent to murder malicious assault statute which had both a dangerous weapon and an intent to kill element of this court decided that that offense satisfied the acas elements clause but it also said that it did so under both  freight and use or attempted use the courts of appeals have not generally distinguished between those those three separate phrases in the act as elements clause we would submit that you can find that this particular offense does so under all three but it certainly would  use i'm sorry could i talk up just a little bit i'm sorry judge matsch i didn't mean to do that let me put this a little bit better the courts of appeals happened specifically distinguish between the three again although  attempted use or threatened use of physical force although again this court in smith in a decision that judge harris actually sat on at the time didn't make a distinction between the three either i would also like to indicate that in south carolina afaik has been used exclusively in the context of crimes in which the defendant used a deadly weapon against the victim there is no case in which south carolina has construed avick to reach a harm yes well that case again if it it is our contention that in light of castleman and in light of all the other decisions that have come down from this court including berne j because it was a baby and so boys and had to be forcibly administered yes there was south carolina that deals with the actual use of force there hasn't been a single case that we have found in south carolina in which south carolina has construed the assault and battery with in tent to kill to meet a mere offensive touching i'm giving you that's all it was offensively touched the baby's mouth and administered what turned out to be a harmless extract i know you must have a way of well our position would be that if you did even that that would be constitute a threatening or attempted use of force tempted you see of course i didn't put it in our particular view the district court made two essential errors in ruling that assault with intent to kill is not a violent felony first you did not use the transformative analysis in fact bit of divide and conquer analysis and simply say that while assault and battery is not violent and the intent to kill doesn't add anything to it it didn't use the transformative and now all the other courts of appeals that have considered that they should have used it also concluded that it was bound by this court's previous decision in hemingway which held that ab hand which was an aggravated assault offense did not meet the act as elements clause a requirement but the difference between ab had in the difference between this case is that the app and the aggravating element there could didn't necessarily have to be committed  violence so all they could be committed by spirity an age it could be committed by inflicting shame or discretion on the victim and so they were nonviolent ways in which the aggravating element could be met in that case here in direct be that even if a case could be committed by recklessness only we would contend in an appropriate case that that was also a reckless offense would be the acas element twenty eight j a later has mentioned there are about four circuit courts of appeal since fawzi that have held that he was even recklessness analysis applies both to the elements clause that of the aca or to the similarly situated  thousand and two and even in this court's cases like after each story essentially the government is claiming that the mens rea portion of the statue can transfer the actus reus or the physical elements into ones that have violent physical force where the acts alone do not contain this element of violent physical force that's required for a violent felony as the government acknowledged in their brief  to kill means in terms of apic and the defendant's min rate at the time he commits the criminal act and this is a quote is contained within the defendant's brain when he commits the act that mental state never leaves the defendant's brain it is not transferred from the defendant's brain to another person or place and so that's how south carolina defines that is spelled out for me how that helps you it because again there are these add hand elements which are not violent and the mens rea which is the only other element is completely within the defendant's brain therefore whatever is contained in the defendant's brain can't make the adhan elements more or less violent are it's all about his intent to kill whether he in his mind the defendant intends to kill someone so that's because it's back to the same into the as i read the cases you have to come up with a case  or of likely case in which south carolina court has interpreted this in the way they use jest and what is that case yes your honor the stevenson versus state case the defend was act salie charged with two counts of addict and two counts of resisting arrest but he was only convicted on two counts of abhay and two counts of resisting arrest the only difference in the charge and the conviction is the intent of mountains and the the physical actions taken toward the police didn't change and this was not one of these like violent circumstances of aggravation that are described in ab hand this was a resistance to whole authority case so it is one of these other elements of circumstances of aggravation ab hand so for instance the actions taken toward the police he was charged with avick and if for some reason he defendant had expressed that i'm not going back to jail i would kill these cops before i go back to jail while he was resisting arrest that would make the malice intent provable in this case the jury found that the malice intent was not proved but it did not change any of the physical actions taken toward the police right but that isn't i was really leaving you supposing you're correct on the intent but you know that it's there is neutral really doesn't tell us that this is the crime of violence and doesn't tell us that isn't it just is neutral ok right so that what south carolina case tells us that this is a crime or is it a crime of violence that's weird that's your claim right right most of the abbott faces that i could and don't really give the facts at all that that's a problem and i cannot cite you i understand that the government has cited colleague on the other side said about clever you know to say about that correct i still think that this is the actual or stake in against the baby's mouth is an ad hand and whether the person intended to kill that baby it ministered turned out not to be deadly but he did attempt to use deadly force by way or his and right the attempt was made but the horse use wasn't a violent physical or that is defined under johnson well if he had been successful he would still say that well i don't think i mean the governor she did under the assumption that murder is automatically a violent felony this panel may agree with that but there is no no case that has held that there are other forms of second degree murder and what have you that that aren't before this panel but that may or may not contain violent physical force ok so let me ask you this question this case is here on  government it's hard to prove to get hay vs relief than it is to get relief straight up where the defendant you'd agree with me that right right so how does that color in when we not really sure that we have a case that really a south carolina case well it helps you the and that's the only one that could help you well i was going to go into the supervened state case was the collision with the on the you know dicing and it was clear if this had been direct appeal but it was and this is an ineffective assistance of counsel claim that the counsel failed to to make this argument sustained by the district court to be sure but i'm not sure that there was a just on that basis alone that there was an ineffective assistance of the laws so i'm clear on this info a baby well i'm just out to lunch you can tell me well i don't i don't think that was the whole thing i think because the johnson two thousand and fifteen case the all of these cases came before the district court and now the district court has issued an order they are ineffective assistance cases right i do understand that but some judges are of the view that you are that you have to use a commonsense approach but the framework that we have is from the supreme court and from this court's prior cases and in this circumstances of aggravation that aren't violent there is more than a theoretical possibility that this crime could be conducted in a way that's not violent and because the united states senate has set up this whole scheme of state predicates we are compelled to code look and see what each state law requires no matter what its titles i mean at least under maryland law the title so mean anything at all i mean that's the first thing you have to know about your own law and then you go from there and so it's something that may sound extremely extremely ugly and violent is in fact has in fact been decide that but that was kind i feel what animated this whole thing and then the position we're left him and i agree judge mots and but i still if this was a b s petition oh no it was a twenty there's no doubt have to read forty state cases to figure out what's really going on but maybe as as another example there's a south carolina case that involved involved a man who followed a woman in a car and used a flashing light and had to pull over and when he approached her car she goes what do you need why did you stop me and he tried to reach in the car and grab her and said well i want you and she sped off he one or maybe two cases that arguably arguably permit a conviction on something less on something that again arguably have that particular view that you have of it which is that one case can outweigh forty i realize we have a proposition that you have to look at the minimal conduct necessary to convict the idea of a one case one ambiguous carry should outweigh forty doesn't seem to me to be seems to me to run the risk of mischaracterizing the actual s the government mr think its position is in line with judge curry's position which if she looked at all of the elements she just did not find the at hand elements could become violent because of the malicious intent in that and it's spring and i would also like to say that the government used a lot of cases that involved a deadly weapon and compared this to murder that's adding elements to abac that do not exist so it's like comparing apples and oranges you really not you can put whatever title on a state crime you want that doesn't necessarily get us to the question but and sixteen three six twenty it isn't just the title it says the assault of crime and battery with intent to kill and sometimes maybe the end the title of a strategy here doesn't match up with the language but in this case the intent to kill is not just a matter of attire it's a matter of text and i don't we get immersed and so immersed in the in the case law there we take leave of the actual text of the statute because that it's a text of a statute that most often forms the basis of the jury instruction so the text of a statute indicates a certain kind of tip or caliber all it's own because that's what most in jury instructions draw from that textual mention of intent to kill irrelevant it seems to me that that cannot be right well i am out of time would you like me to respond  charges because the south carolina supreme court has removed the jury charges from their website so we can't access this anymore we used rocking anderson and again they do define malice in a way that can be words or expressing hatred or the south carolina courts have defined the app act as comprising all the elements of murder except that the victim didn't die so that what happens an abacus a practical matter is the defendant has done everything he possibly could to kill the victim but he didn't succeed for some reason or another and our position is a murder is a violent felony the equivalent attempted murder it's always going instruction or elements in this now it's intent to kill has got to be one of them that is correct malice aforethought instruction that is has typically been given in these type of fences usually includes a language that says intent to kill as well i believe the that the canard of the sudden case well i'm not the other is it not true isn't found a distinction without a difference well that's actually what the that's what the south carolina courts said they said the reason you don't have to give a separate specific intent to kill intent to kill instruction because that was in compass by the malice of forethought instruction that's correct so when you were talking about this you said it usually was was they were instructed this way and i thought your colleague concluded with relying on some jury instructions that must help her position so does that mean that sometimes the jury is not required to wonder two cases in which the jury instructional issue was an issue before the appellate court i do not know what instructions are given at the trial up especially now now that abbott has been  codified as a statutory offense what instructions are given to date i simply don't know the most was simply my recognition i read a lot of cases some involve jury instructions but only a couple of them the rest of them all and rolled sufficiency of the you have  and the text of the statute is where the answer to i think three questions is yes the texas important it does not necessarily conclude that was judgements pointed out that is why a this court in the supreme court has required the government to come up with ways in which these cases are actually prosecuted to determine whether anyone or or or several of them thought it would involve no not me it's also possible to look at the weight of case law in deciding what what under twenty two fifty five doesn't give us any particular advantage i mean the defendant in bringing a twenty to fifty five has the burden of showing that there was an error in the case as opposed to direct appeal where sometimes that is  government's got the presumption to show beyond a reasonable doubt twenty to fifty five is different in that respect our position on this particular case is that it's absolutely clear where has the burden of proof that that this  was to address that question the district court the question that the district court addressed was that this particular offense was not a violent felony under the elements clause and our appeal from that that but yes it would be the defendant's burden to show that eric was committed at sentencing the district court found that such an error was committed and we think that just report was wrong my colleague and i was just the district court granted relief on ineffective assistance or granted relief because the district court said forget ineffective assistance this was not a predicate i believe the district court ruled that this was not a predicate ok that's why the government's brief on the q was focused on that specific because i don't really know either