good morning my name is john potus i'm here for mr breyer's may it please the court thank you for the issue before the court today is whether or not mathis changes circuit precedent specifically velocity with respect to the divisibility of illinois aggravated battery statute what i'd like to do is start with a brief run of the procedural history then go into why i believe matters changes the law discuss the lascaux a bit and then discuss the to stay cases that the parties have put before the court vs in cherry finally concluding with the reason why i believe that the statute is not a visible and why i believe that there was a map this not only reiterated that elements are what count when a court looks to a statute they can turn it contains alternative methods or means it also gave the court a method for determining when alternatives are elements versus means and that is the new law of matters that causes this statute and it noted that the statute was overbroad specifically it contained a subsection that prohibited often said touching and it said that that subsection that it held that you had to prove deadly weapon deadly weapon is an aggravator that allows the sentence or the conviction for aggravated battery but it is a list or one of many aggravators that can be proven for example and i assume you're referring to the d a s court the d a s court in b s mr diaz was charged under two particular subsection to the statute one causing great bodily harm and the other requiring the use of a weapon both of those charges were submitted to the jury and the jury was not required to be unanimous as to either charge what mathis tells us is that when a jury is not required to be unanimous as to one of the alternatives that alternative is not an element and that's how mathis changed things diaz is a case that cites to an illinois supreme court case in which a gentleman was charged basically with four different manners in means of committing murder he was charged with committing it knowingly intentionally recklessly and through felony murder there was no jury unanimity charge and he complained on appeal the travis court said you know anybody is not necessary that as being part of a line of cases in state court were guarding the sullivan rule sullivan roe allows murder convictions on more than one alternative theory when they could be committed committed to felony murder or through premeditated murder so getting back to the change that math is caused and the method in particular that it provided mathis tells us to look to state court long to find out if state court won't definitively interest the question of manners birches means the as does that the government proposes cherry as an alternative and notably they do not discuss the as a single bit in their briefing cherry is an interesting case the defendant was charged or involved in a parking lot alter cation him where he ended up shooting another individual he was charged with armed violence which was predicated on aggravated battery causing great bodily harm and he was charged with aggravated battery with a firearm those two charges arise from separate statutes the statute before the court today is not same statute that was before the court in cherry specifically aggravated battery causing great bodily harm was section twelve dash for a and aggravated battery with a firearm which required discharge was twelve point four two these were the two thousand and ten versions of the illinois statute what the he was jo he was convicted of a deadly weapon and it was a deadly weapon he was convicted judge of aggravated battery with a firearm right and he was convicted of armed violence and his complaint was that his conviction for armed violence had an exception that allowed him to get out from under the statute because aggravated battery required or aggravated battery with a firearm had a firearm involved but what the court said is no you're talking about two different statutes at that time aggravated battery had one set of subsections and separate and apart was aggravated battery with a firearm one or two years later after the case i believe it was july of two thousand and eleven the illinois legislature aggregated a number of aggravated battery statutes including the aggravated battery battery with the prior statute and what led you to look at that number system would be said which is this list that you're talking about but it's the currently slips as of time that your flarm stored and changed again and that is a specific narrow particular f one that says with a weapon a deadly weapon whatever it says i don't have it in front of me it seems to me when you look at math us when you look at the list of things that matter said we are to examine the term and whether this in fact is an element vs a means the last thing it says to look at or are the documents themselves the charge against him who sees me this indictment makes it clear that he has been short not with things that could be of you he would not have to be that is true that they had to be unanimous with respect to him or one of the only one of the indictment with their then it would be sufficient for them to find that he caused bodily harm and that an aggravator the weapon was used if the state had decided to for example as referenced by in the steel case if the state had decided to add another subsection the jury would not have been required to find  that's not how he was charged but it is the statute that he was charged under it's not divisible and because it was not divisible the court cannot go behind the elements which is mad at him and then when it said when you finish looking at the statute you can also look at the not the documents from the conviction itself what does that part of that has made it mean something when state court decisions you do not definitively answer the jury  not look at the charging interment and find that the statute is indivisible because it contains subsections they do not require the use of force now dear you are saying we're dealing with a prior version of the statute correct  in under illinois law would have a greater sentencing effect us sees me that in and of itself carraige the obligation for unanimity if you have some of these consolidated statute that swept into in under the umbrella of the the statute aggravated battery with the farm which was twelve dash four point two and also swept in back in two thousand eleven twelve dash four point one which was heinous battery and has now become a two twelve dash four point two which was the aggravated battery with a firearm case which became eat and the effect of sweeping in the separate you have this list on mid f one is not one of those but it's a suggestion these are independent elements in the way to to charge and convicted under the aggravated battery i disagree with the court i believe that each and every subsection a three g i believe every subsection a t g list a separate managing means and the evidence of that is that these are aggregated from what were previously separate crimes statute they also brought with them the different penalty provisions that existed in those separate statutes at the time the other or the other thing helpful for him or the defendant convicted was it convicted after the statute was changed in illinois yes jack she was convicted conviction in our cases two thousand and fifteen all of the cases that analyzed this statute analyzed the previous version of the statute i have not found a single case that analyzes not necessarily divisible and within f we have alternatives wearing a hood wearing a robe recording the simple battery is sufficient to aggravate and using a gun sight device none of those would with maybe the exception of the gunsight devices fall under the use of force and with respect to harm the court did not calculate a guideline range we are under the m r a prior holding before madness and the lasco use the modified categorical approach and this is still good law still correct approach aftermath this as recognized by the seventh circuit  lists that sub part eight in the opinion itself that was the definition of battery which is disjunctive and it also says a part eight which is battery in a public way it doesn't really evaluate the whether that is an elements of th is actually the instruction of matheson's cell which instructs the district courts to look to state case law and if that isn't clear to look to the structure of the statute now state case law in twenty sixteen the illinois supreme court looked at the statutes and granted it was the old version of the statute but as the court noted it has been in when it's been subsequently renumbered but the court and the supreme court of illinois looked at the statute and characterized it as elements based used actually used the word elements with respect to battery and those aggravating factors and under this court's holding in your rebate the way that the h charged he was wearing a hood that the jury would have to find separately my authority your honor is looking to the structure of the statutes that is my authority and the structure of the statute supports  mathis whether elements are meet words like elements and prongs and sections those things are tossed around and looking at the supreme court case i didn't get that they mean elements of the way this is necessary for you to convince us the he was discharged before he entered separately unanimously agree he was wearing the hood well that then the court would have to look to the if if that if what you're saying honors at the state instruction of the statues unclear the court would be permitted to look at the documents to assist in its determination whether they were elements or means and his case the indictment and certificate certified or probation specifically limited  violence to raise his girlfriend meaning that december michette an attacker there was also a genie wearing beating at record page eighty one the court announced on the record that she believed her rulings on the objections were correct but the in the in the event they were not the court again mentioned the thirty five fifty three eighty factors the court specifically selected a five year sentence sixteen months that was not at the high end of the range would still impose this since she didn't say anything that specific gene the only and the only objection before the court was whether or not this statue was divisible and the court did say record eighty one that she believed the ruling was high end of the what we contend is the incorrect guideline and then in asking for that sentence went through many of the facts that the court then used or stated in imposing its own sentence that record seven to seventy nine the prosecutor said we asked this court to consider a mid range or high incidence in this matter and after going through the factors in the case said we would ask to defer to deter further criminal conduct and protect the public that he sends to a major high end range the court then sentenced mr gray if not exactly to mid range but three months of above the low end of the what we say is the incorrect guideline range which is about halfway between what the prosecutor was asking for and the low end of the guidelines the court all judged to have been more illicit language that we use is pretty close to the sort of thing to use that shows form was there it is pretty close judge but it is not harmless error and it's not harmless here because the government cannot affirmatively and convincingly show that the sentence is completely divorced from the incorrect guideline range the court in fact said she said in the event that the court the court is in  i don't know that anything else would have made a difference that's my point she's the only ruling that made any difference in the guideline range was the unions meant correct and she said in the event i'm in here i'm still taking this and i understand however th government must do more than that the government must affirmatively demonstrate that the incorrect guideline was not influenced in any way and they requested a within guideline range the court said i am going to say that you within the guidelines range as i have to terminate it to be at best it's equivocal and that's not enough for the government to meet its burden also at record one forty eight the statement of reasons the