good morning may please counsel i'm daniel horowitz i'm with federal public defenders office and i represent mr goldman he raises four issues on appeal first the district court erroneous lee found the government proved aggravated battery that injury has to be more serious than cuts and bruises and illinois law is clear on this we cite in ray j as well as people for scott style here the victim had cuts in his mouth a cut in his mouth and bruises those do not establish great bodily injury and so they do not suffice for that variant of aggravated battery the government proof was lacking the government could also try to establish negative battery and that the victim was battered in a public on public property of the government never tried to prove aggravated battery in that fashion did not offer any proof and so it did not meet its burden and it was the government's burden under united states versus goad to establish the necessary elements of the whatever offenses were alleged and that's consistent with due process as well that when the fight occurred in the county jail yes that's public property it would be an obvious point that still requires proof even if something is patently obvious it doesn't unless the government's target a shrubbery it for judicial notice right certainly but they didn't ask the judge that judicial notice we can write you can affirm on any basis however there should be proof is offered in fact the statute doesn't just that doesn't define public place to include jails there is some case law on that but the judge never made that determination the government never came in however the government came and it should defend what argued in the district court in the proof on that was about a great bodily injury the government didn't offer the additional variation  proof well and on the great bodily injury point and there cases that demonstrate that bruises and you know lumps and that sort of thing constitute great bodily harm it's very fact found in the and court found here that you know the whole inmates body slamming punching kicking the victim in this case and putting in the hospital on the suspected concussion is great bodily harm that seems to me a sustainable factual finding on this record even though no broken bones were broken you know he didn't need stitches and none of that is per se required that's a factual question for the fact finder so far as there are multiple people involved in the fracas i don't think we can hold my client responsible for the injuries that would cause can be look at what the injuries that were caused there was a suspected concussion but there was no proof that he was concussed the bottom improvisation there's no proof was offered on that as a matter of due process the government should not be able to come into court and allege great bodily injury and then have the district court instead find that there is proof in so far as where the place of the offense was but it's commission the government had a burden it proceeded on the theory that there was an aggravated battery of great based on great bodily injury the proof that your honor mentioned is putting a net over all the activities of the different individuals holding my client responsible for those but more importantly one that is dramatically acceptable in the context of the statutory scheme if you participate in a fight with others you know you're responsible for for what happens to the victim and if this were a jury verdict on a criminal charge of aggravated battery and sufficiency the evidence argument would fail i don't think it would under inri j and castelo because the injuries that were described here to the court that were proven were minor injuries that don't supply side but there are cases that supported people versus he is one and there are others i don't think that my client's injuries would suffice even under that case lawyer on their injuries were part too minor here relative to the injuries that were required for bottle great bodily injury in the other cases it's so far as if i move me move on to mob action we have another problem the government specifically said that it was not relying on mob action and said so in its briefing think it's page thirty one no for its opening brief and if the government has been as a matter of due process is not going forward on a particular theory my client then as a matter of due process and letter approved shouldn't be held accountable for something that wasn't proven you can't prove you can't revoke somebody's supervised release for unproven conduct which is what would happen if the mob backed by the action here was accredited here discredited so i think that's a problem for both reasons that i've outlined and if the government hasn't satisfied its burden of proof then there is no fission evidence to revoke under eighteen u s c thirty five eighty three three you know for the questions on that topic i'd like to turn to the second issue about whether or not the district or erred in finding that mr golden committed a great day by a leash and supervised release and for there to be great a violation that had to be a crime of violence the manner that in which either offense can be committed and neither require violence so far as this court's case was determined of on this issue there's united states versus coal and of course the government tries to point out how that may help it but coal is undermined greatly as the government knowledge is by the fact that johnson versus united states supreme court case was decided subsequent to coal and so i don't think that coal is a solid footing for anyone t crime of violence here right this this went qualify i don't elements based analysis and in any event the modified categorical approached not apply in these circumstances for not looking at what sort of conviction the underlying or what could sort of crime the underlying conviction constitutes when looking at what the defendant actually did but nor did any actually  this guy but to make that determination you have to look to the facts which are evident through the video but i don't think that is allowed of the district court to look at that as a shepherd matter it's shepherd taylor and that line of cases just doesn't apply here where this is an actual contact part of the guidelines this is not evaluation of an underlying conviction which is where that categorical approach applies to taylor shepherd johnson all of those cases are out i would have to fall back still than to whether it could be a  corrections corporations of america there are a lot of providers oh no no no no no here's the jail owned by that it was an element of the offense yes and the government no that's a good lesson right now this is ridiculous proving the obvious what is the point of proving the obvious we know it's a public jail yes why do you of law no sir what we're relying on primarily is the government came in and argued that there was he added a battery based on great bodily injury the injury i don't need is great bodily injury because they have public jail all i can do is point to the elements but more importantly i'd like to get not the size you got that i don't understand your approach i don't like it ok the government though it's technicalities carried to an extreme carried to an extreme government has to prove to him to list for you now searches much about notice to see where the government has what it says so stupid so even if he even if we buy in the earth theory it was an error for the district judge to not make a specific findings surely it was harmless  fundamental problem though is the government alleged great bodily injury and it did not try to prove the offense in a different manner that's my fundamental problem have but there the video was there and there was a witness and testified right so you disagree with the inadequate on that the district court found that it was proven through a different period of aggravated battery but as a matter of due process that's not what we were defending in the district court and they had no defense you admit that that be very difficult one for us to no i don't think they should be able go back and prosecute as a matter of due process i think that it's essential so this guy gets a lawyer because because this mountain of technicalities that you've erected elements are not technicalities and know the gen this business about they didn't prove it was public property it's as yet a technicality it's again more about did that prove great bodily injury the technicality of the i don't need the great bodily injury if you have the public property morning your honors may please the court mr hillis there was proof that it was public property it's undisputed that this was same in county and the last states a county jails are public property as illinois interprets law the fact that we didn't ask the court to take judicial notice of state law is respectfully a very weak argument when they are presumed to know them as far as his due process that argument that he was in on notice that we were proceeding under the public place theory i'd like to direct the court's attention to one of the six of the transcript and which defense counsel stands up to states all the government is required to prove gholson committed a battery and a public place we have discussed in our pre hearing memo the theory of public place and then the judge makes her findings and she no subsection c of the aggravate battery statute that says the battery make occur on or about a public way of public property places public accommodations cetera this isn't an issue of notice he was on notice we proceeded under a theory of public place as well as great bodily harm so there are multiple grounds on which this court can affirm based on if you even want to apply the categorical pro church we agree with you judge sykes does not apply in the context of real offense conduct of seventy one point one but even if you wanted to proceed under the categorical approach aggravated battery that is causing a bodily harm in a public place is a felony under illinois l i think his argument is twofold though that we did that the judge did make the right findings which there would be a lot of the court could rely on that says that can't be waived she has to make findings but regardless of looking at the sentencing package as a whole the and the description of the sense as a whole she more than supported the conditions the term as well as a term of imprisonment and we agree judge sykes that any argument about the substance is grave because she imposed the precise conditions a defense counsel said explicitly he had no objections to so unless there are other questions from the court we tendered back our time would ask your firm the judgment of the district court in all respects thank now think it's incorrect to characterize what the defense counsel said was essentially the closing argument which is basically page one hundred six is about what the government need to prove and regardless what defense council says it does not establish the law is the way the elements in the required proof so i don't think that we can hang our hats on that i didn't think there was a waiver which set out our position in the brief as well as the conditions in the length of supervised release that was chosen here under downs and under henry just tortured me fines for the three year period of supervised release otherwise appears arbitrary and incapable of review by this court beyond that i have nothing further thank you ok well thank you very much