good morning or honors me please record your own matthews from mr pres it is our position that mr perez was denied due process in the manner in which this case was prosecuted and the night fair sentencing procedures  errors due to errors rather committed by judge white in the district court at the outset i want to make clear that i'm not asking this court to revisit double jeopardy and overrule the dual sovereignty doctrine but it's precisely because the dual sovereignty state that the government has a duty to warn if it is involved in a state prosecution to warn the defendant that federal charges are being considered and this is why first we begin with the party is holding they recognize amendment i think it was logically placed there because in those circumstances the defense counsel for the defendant has before him or her in a rape of treatises and in fact the statute that can be consulted determine precisely what would happen if certain types of offenses were committed in fact i believe is under title eight u s c eleven a one hundred forty three that was a number of defense scheme a number of offenses that would lead to aggravated felonies and result in deportation no such reference exists in a particular case like this because whether to prosecute somebody that's already been convicted in a state court is entirely discretionary and the defense counsel has access to a federal prosecutor this joint county federal investigation so the federal agent was supposed to tell i didn't say federal agents as pious and well funny how my asking you who was supposed to tell me i'm the state court judge now mike you might be prosecuted in the  a court there is so much overlap between federal and state prosecutions at this point just by as it is not an honest ask a simple phone call to defense counsel we need to the da let this guy know we're considering federal charges and that is done on a fairly consistent basis the governor's not argued against the evidence we perform before judge white in fact all the district judges in this circuit know quite well that there's a lot of federal overlap there are federal agencies and cross designated so we don't think this is an whether the court as part of the plea kohak way should advise the defendant of the potential collateral consequences which would be outside of the ineffective assistance of counsel situation and we we of violence issue ok i want to turn to two forty three days and i do i'm sorry i want to reserve a few minutes for battle with respect to two forty three d your honor it's our position that the just a court got off track initially when it felt that there was an inter g split i did not believe that marina towbar and cop who i think is you pronounce it are necessarily constitute a circuit split because the couple was decided to years before the supreme court its decision and johnson one you know are but in any event i do believe that marina towbar is the only case the circuit has ever addressed to forty three d in particular and it held under the circumstances that because the touchstone for the analysis for the fourth clause is a minimum level of force for a conviction that to forty three did not satisfy that the issue that we have here your honor is that the district courts are looking to cologne arriola and lo and those type of cases and it's our suggestion to you say that when the battery is required it has an extra element that isn't in two forty two that can indicate it's a crime of violence so why wouldn't we apply that to two forty oriole the focus is on the result it respect of the fact that it has an extra element because johnson says you focus on the force itself you focus on the conduct and you also focus on how state courts hav court gave a theoretical hypothetical did you find any cases where someone was touched there was the offense of touching resulting in a serious injury and they were actually prosecuted under two forty three days i did not find such cases jessica however and that's one of the things the government seizes on i would suggest to you that the reason that reasoning is not persuasive is because a court articulating what would and a two forty three crime focuses on the results rather than the actual conduct that is in contradistinction to precisely what johnson compels which is if you focus on the conduct itself further with respect to the state cases that's the one thing that i believe judge to not go in the red a case which is a case to a fairly recent i decided it did find that two forty three d was not a crime of violence focused upon with the fact that the california courts use this least offensive touching analysis which is inconsistent with moncrief in the supreme court cases that also suggest that the focus should be on the least conduct necessary to satisfy a violation the statute i c m down to five minutes i'd like to discuss about two more minutes worth of my argument here the final argument that they were making is that the just a court did not consider fully or at all  the disparate impact of successful prosecutions on the data that i was able to going there from my colleagues around the country we came up with three or four cases in which successful prosecution was had by the federal government after the current and flowed out or been tried in the state courts and in every instance it was a person of color and i raise that issue in the sentencing memorandum district court held that the argument was not probably before it and that's a direct quote not probably before the court of this time before we'll find that excerpts of record page thirty seven because we could not get the discovery because of precedent similarly situated defendants that that's something the court should have considered because the court did not consider that we suggest that that's fair and that every man is necessary on that issue as well i'm down to about three minutes and thirty seconds i'd like to reserve ok that's f good morning may it please the court susan gray on behalf of the united states i'd like to begin addressing the first two issues both are controlled by binding precedent the defendant has conceded that he has no basis for asking this court to overturn almost a century of binding supreme court precedent on the dual sovereignty doctrine to the extent that he is now suggesting that he has a right to notice whatever the government is quote involved in a state prosecution he cites no basis no authority whatsoever for that right and in essence your honor he is asking this court to create a right to due process rights out of whole of a potential indictment or even to rush the government into the federal government into making a decision i'm not a prosecutor anything i really don't know how these decisions are made but this does strike me as a little bit odd that he was prosecuted for possession of a weapon in state court and then he was prosecuted for the same thing in federal court that's correct your honor and i was surprised that there was a compelling federal interest to pursue it separately well this court has i understand i understand the you know i understand i'm just curious just you know i was reading this you know it's like why was the compelling federal well your i know you make those decisions yes you're i was in your belly and that discretion is is is the government's but on the other hand your honor this court has explicitly recognized and i apologize if i can't remember ever would zone or lucas that it is entirely appropriate the government having viewed if it believes that in a particular instance believes that the defendant has not this sentence imposed is not sufficient to address the danger the defend is dangerous and point and then this court is bound by that precedent as to the second issue the district court did not err in finding that two forty three d is a categorical crime of violence and the district court probably followed this court's reason colin it that this court's in corrie is equally governed by the binding precedent of call an aerial the outcome that defendant seeks a finding that to forty three d is not a crime of violence would directly conflict as the district court relied on it because there's no daylight between the two statues the distinction between c and d is that it is there is no distinction force that inflict seri bodily injury as required by di as as with force that cause an injury requiring professional medical treatment under two forty three c is necessary as the colon aerial court found force that is capable of causing physical injury as required by johnson now coleman areola he is an essence asking this court to conduct the johnson analysis anew one to forty three d the court doesn't need to do that the  published case on whether or not there was a it was a crime of violence and it specifically distinguished it because in this instance two forty three c as does two forty three d requires force necessary carry to inflict serious bodily injury therefore we the government believes that this case the court need not go any further this court has already held that to forty that force sufficient to inflict injury requiring professional medical attention is necessarily force capable of causing physically pain and injury as we acquired under johnson similarly to forty three d requires force sufficient to inflict serious bodily harm on another and that fits squarely within the johnson definition of a crime of violence force capable of causing physical pain and injury lopez hernandez went through the different district courts and the came out with different conclusions but i would say that the ready case that the defendant cited  two forty three c as does two forty three d requires proof an element that two forty two does not so to the extent that the reading court that he cited relied on ortega mendez this court  already found that that's in it in a political and it's also found specifically that when there the two forty three c and in this case d requires physical force sufficient to inflict the injury i the district court clearly considered his unsubstantiated argument of discriminatory of selective prosecution as he concedes he cannot make out he couldn't bring in or didn't meet the standard for a usa who and said is you know i asked him questions about it he'd also seen it in the in the defendant's sentencing memorandum the government papers and he considered it said i'm not going to this is not probably before me based unless you have some actual evidence and i think that was the court's term actual evidence so this court's under this court's president precedent it's the court is not required to take off every single one of the thirty five fifty three a factors that it considers this court presumes that it understands the law regarding its obligations that sentence seems and that based upon it even if it doesn't take it off specifically there it is not required for it to make a wrote a determination as to each fact or each factor considers it also and here the record given the party sentencing papers and the transcript the hearing indicates it clearly considered them moreover i would just point out that the court actually took into a account the defendant's prior two months it in state custody in and reduce the defendant's sentence by that period of time so that he wasn't he did not suffer he was doubly punished for this particular offense if the court has no further i want to first respond to the government's statement that mr perot's is asserting a constitutional right to a global resolution we're not saying this is a constitutional right there is what i am suggesting is that before estate defendant makes an informed decision or to allow a state defendant to make an informed decision whether to enter the plea it would be nice to be informed that the federal government is involved so that the defense lawyer would have an opportunity to contact the federal prosecutor and find out with a global resolution could be had or if there was some federal interest that could be addressed by a state senate so that the specter of dual prosecution could be avoided i'm not saying that there is a constitutional right to a global resolution with  counsel had not actually even cited any cases in which the force necessary to to to exceed the generic definition of something was even established or discussed in this particular case you have two or three was sufficient and i can certainly conjure up any number of cases in which let's say somebody gets pushed down the stairs when an argument no violence forces inflicted but if the stairs are cement it's very easy to see how somebody could fall down the stairs and fracture an arm possibly get a concussion you know even break a back so this is not you know in the realm of some metaphysical possibility this is reality and when california courts state that i just suspicion to constitute a violation of the statute i think this court has forward it's official amount of case law to look at and make that determination with respect to cologne areola again it's up to this court how to approach it there is no published precedent that i'm aware of where this circuit has dealt with section two forty three d of the california california penal code irrespective of the fact that two forty three c may have the same basic conduct alleged i believe this court is writing on a clean slate and if the court chooses at some point to revisit it you know it's up to this court how w determine whether or not the colonial law has any impact on two forty three d at all and if it does what to do about it i think this court is the absolute power to decide to forty three on its own merits and respect to the thirty five fifty three  analysis of its thirty five fifty three reasoning when an issue of this import is specifically identified and raised and brought to the court's attention i do feel the court is obligated to at the very least acknowledge it and make some type  both sides in cases submitted this time thank you