career offender his maximum sentence was life in prison for two reasons the district court should not have used the california state attempted murder statute to determine the maximum sentence it should have followed the reason is that the indictment in this case did not plead as would have been required in california state court the necessary facts to support a life sentence as a potential maximum is second argument is that the court was incorrect when it determined that he was a career offender in the first place the significance of these two arguments are that what the district court determined was that the applicable sentencing guideline total level was a level thirty four within and applicable sentencing range of two hundred sixty two to three hundred twenty seven months and under in that range sentence mr files to three hundred months had the district court agreed with either  two contentions we've raised before this court then the sentencing level would have been a level thirty one and the applicable guideline range would have been one hundred eighty eight to two hundred thirty five miles so had the district co question and why is that not categorically it's not categorically a crime of violence because to be a crime of violence it has to be directed towards the person of another's the language that's applicable doesn't mean that with the language  know the language of the statute allows in the california cases recognize that a threat against oneself as opposed to the person of another or a threat against property would be to alternative ways of violating that statute under where does it say that in  it does it does not say as i recall does not say person or property but the cases reflect that that it does not have to be directed against a person of another and and that's the basis for that argument choice if you look at the state court record of what was done in that state court proceeding and this is why i quoted the spectrum from the dissent from justice  the defendant pled guilty to that on their face whatever stablished assault against the person of another which is why we get out of a categorical approach so what we're left with is what takes place at the sentencing proceeding but he was charged initially with inflicting injury upon what the cracks officer and that was dismissed well the great bodily injury was dismissed but is it your position that we then read out of the charging document the injury that that somebody was injured it doesn't matter whether it was great injury or not just that there was an injury which connotes the use of force and then my response to that is is that injury was obviously disputed because the great bodily injury allegation was dismissed and in the factual allegations but that but the question is that's severity of the injury i guess the question i'm asking you is is it your position that we have to exclude any consideration of the fact that there was an injury without regard to how severe it was when we're trying to decide whether this is a crime against a person versus a threat against property i think so in this case both of the parties have agreed under one of the question the courts enhancement that aggravates the plane issue yes that we we cannot consider the fact that there was personal injury involved in the commission of the crime well i think the court's question was dealt with the allegations and what i'm saying is you could consider that violate pinnacle section six not why can't we conclude i'm looking at the plea colloquy in which the court basically recites count one kill him which includes that you didn't knowingly resist by use of force or violence the executive officer in the performance of their duty and the defendant says guilty so why can't we conclude under the modified categorical approach that that is a sufficient admission to show that this it was a crime involving force or violence and not threats against property because the defendant did not admit facts to support the approach that the court's taking which is that in fact there was force used against the person of the officer but he's pleading guilty to that why do we need to go any further under the modified categorical approach all we need to do is satisfy ourselves that this is not a situation where he was convicted under section sixty nine on the threats there and by virtue of the fact that he pled guilty to resisting by use of force or violence doesn't that in the inquiry into the modify categorical but it's the use of force or violence against the person of another that is the distinction the fact that he was using force or responded specifically that you tie aaron fulls did willfully and lawfully attempt by means of force or violence to deter prevent lieutenant cine correctional officer bell correctional officer patton correctional officer brown a then the language i quoted to you by resisting by use of force or violence and he pleads guilty to that and the and it's the use of force or violence against the person of another the distinction i'm seeking to draw is a person of another versus against himself but the court listed for correctional officers and i think fairly rather i can infer from the charge that the force or violence was directed to those four correctional officers not against themselves but i don't believe that the language says that chair i mean if it's exactly that part of the basis as a jumping off that you would hurt yourself as a means of resisting the officer violates penal code section sixteen aren't sufficient factual basis to good morning and may it please the court i think united states attorney kevin wiley on the half of the united states the district court sentenced defendant tie thousand to twenty five years in prison seventeen years of which was  counsel's initial challenge which to that extends the fact that he was in a career of fender for the defendant can see that he meets every requirement for being a career spender but for the fact that he claims that it's going to use the statutory language he tells with mr languages on your points yes your honor and i can i can do it from memory i can quote specifically memories time that day in terms of memory and the one way in which it can be done for a crime of violence the other way in which it can be satisfied is through making a threat or through a stretch or force that perfect prevents or dissuades an executive officer from the performance of their duties now that's the one that in an extreme minority of the states instance could conceivably be directed towards property somewhat kids it's you conceded this point but i'm kind of wondering why we have there is a case called manual g and it's cited it's cited for sure in the government's papers i believe it is cited as well in the defense granted like the site and you think i'm i know the fifty one of the vehicle code and and there's language in there that says that counsel has to be able to point to actual cases as opposed to hypothetical violations of the statute and i'm wondering is there any statute that allows mr or in the case of the draft mr treatments theory that where a defendant essentially says i'm going to kill myself if you don't back off that that constitutes a violation of section sixty one the government is aware  prior to coming in today so but my understanding is that that would be correct but in this case in this order to leave that would for any other day in this particular case though it's doesn't matter because it was disruptive you was refusing to follow orders and zero remember he banged his head on some doors and then threatened to jump off the railing and had to be actually physically restrained he refused to tell cooperate with the verbal in which the defendant is on a railing you know for which he can then fall off and he the off and he's refusing to comply and so the corrections officers who are responding you know initially ask he was being disruptive refused to do so and then we were in a situation where they went to grab him down and he didn't and he did not just voluntarily jump down and at that point he fought back and that was what resulted there's nothing  two points first on your honor in response to the courts to comment about cases questions about cases in the opening phrase exact language of the statute is cited at the top of page seventeen and the cases that i've relied upon are discussed on both the balance of page seventeen and the top of page eighteen if the court would permit me i would just like to make one policy comment with regard to the arguments on the other issue we propose which has to do with whether you look to the most analogous tribal statute or whether you go to the state court statute and the policy comment is this under the position taken by the district court and advocated by the government if you follow that policy then what that means is that you're not going to be sentencing identical ie identical defendants for the crime and their criminal history you will be sentencing them on the basis of maximums in a different state court system congress make that choice under rico and it adopted as a predicate act of various state law crimes and then directed that the punishment for the guidelines specifically direct sensory cortef only and if you so so we sort of pick the statutes that we favor versus the specific we take the general over the specific is that is that wh you're arguing and what i'm saying is is that is a matter of policy you picked the approach that is the most consistent regardless of the individual facts in the case and that would be to follow the guidelines because that's  all statutes regardless of the state in which the underlying predicate act takes place