arm career criminal act and quite frankly common sense this court should find that terence bell's designation as an armed career criminal should be reversed for three reasons first under the case of united states versus  camp this statute the tennessee aggravated assault statute specifically this particular section sections c is overly broad non generic an individual and as such the modified categorical pro choice cannot be employed interpreted it and third that even under the modified categorical approach there are no shephard documents to satisfy this inquiry under the declared it looks to visible to me that all these different categories your honor there's a sort of pen's what you're looking at i'm looking at the second part of subsection seether the one that starts excuse me on ok not after the restraining order but what he does after restraining an individual you know it's the last two lines i guess intentionally unknowingly attempts to cause or causes bodily injury or commits or attempts to commit an assault those are four different things right your honor there they are four different things abs or that's absolutely right you are but one of the other problems involved is that you see that it says that in the in the last four commits or attempts to commit an assault against such individual or individuals now again this in compass is the language of assault so now we have an entirely nother statute by reference that is brought in and that is included here in this section of the statute so what you would have to find is that not only is this statute divisible but the other statute is divisible as well and so a court shell go through divide up which element was satisfied here under the aggravated assault statute then go through that possibly the assault statute and find which element was satisfied say that well it would say that mr bell committed an assault against an individual so of the four categories before you get to the definition you're saying the shepherd documents would put you in to commit assault yes and then we have an entire have the three down there which one of the three definitional terms with the chip or documents put you under assault that's where i thought we were yes i'm going now from the aggravated four things you can do and one of them has three sub par it's ok your honor under the shepherd documents that were presented and if you look at both the our brief and also the response brief at the district court level the shepherd dogs that were that were submitted included the indictment the judgment that showed that the indictment was pled guilty to and also a plea colloquy which actually was the wrong plea colloquy so the only shepherd documents that we can look at are the indictment and the judgment that's rhetoric and what do they show we are not i do want to make sure that we don't believe this court should be looking at but i said that we could yes your honor if you're honored as hypothetically if we were looking at shepherd documents the only shepherd documents that are in the record that are relevant to this case are the indictment and the judgment that's right your honor and what do they show they show quite frankly your honor that mr bell committed an assault it does not to mark a lot distinguish between one of these it does not your honor so to speak for my colleagues it appears to me to be we just have to figure out whether one ought to see in this three as incorporated in the fourth of the four things versus smiley that includes such all fits of or productive provocative contact including kissing without one's consent cutting one's here without consent or spitting in one's face that wouldn't be enough by itself you would say no your honor what about in the context a restraining order that's my bottom line question yes or no either doesn't the restraining order make the difference your honor one of the things the united states talked about in the sykes case where it was talking about intentional vehicular flight was the idea that there has to be said here a serious potential risk of physical injury to another the government obviously cites that repeatedly when is trying to convince this court under the residual clause that it should find that this sort of conduct qualifies the problem is what this court would have to find is that an individual while under restraining order that cut someone's here without consent was creating a serious risk of physical injury why isn't that the case honor cutting someone's hair while under restraining order doesn't create a serious risk of physical injury this is spitting in someone's face creates create a risk that victim who is spit upon will react and and that there will then be an escalation and there will be a risk of serious physical injuries somehow happening because most people don't like to be spit on especially by somebody subject to a restraining order no your honor but this  is there are levels of it when the court when this court in the team has or take a case talked about this aggravated assault statute and talked about this particular section it talked about how this was not your typical generic aggravated assault set you because of these particular types spitting in someone's face is just one way we're talking about a range of their ways of spitting and bodies here against their will or kissing we all don't know and most people don't want to have their hair cut by some body running up and cutting their hair and most people don't want to be ki by somebody they don't want to be killed by i mean it's sort of self evident especially somebody that they've got a restraining order against sure there are many actions that most people do not want a person with a restraining order to commit against them mind so much if you came up and kissed me you know might be offended yes but if i had a restraining order against to be qualitatively different your honor it will be it is different but it doesn't rise to the level of serious hair or spit in your face also but this is under restraining order you also would not would be anticipating that that would not happen but the problem is that when we look back at the supreme court and the circuits cases with regards to sort of the commonsense idea of what a violent felony is and what creates serious potential risk looking at the big a case which the which my opponent cited is a great place to start do you are where an individual well your honor the stalking case this is the reason why is because that stalking case is a case where you have an individual with repeated deliberate conduct according to the johnson statues  according to the statute at issue in johnson this can be satisfied by one action ok one action where a person is simply offended offensive contact that's it and as a result instead of this sort of repeated action over and over and over again like in the stalking case in this case we're talking about a litany of ways to violate the statute but it's in the context of the person having been enjoined or restrained by an order which is the restraining order in other words there has there is a history of some kind of improper action which had resulted in a court order against that is true there is a history there is there has to have been at least one reason why that protective order must have been signed do you do we know what kind of protective orders are covered by this is it all domestic relations or are there other protective orders that are covered i think there are a number of different number of different orders that are covered but where would we go to find out the answer to that you could go to the tennessee statute and then you would go back to the definition of protective order to look in the tennessee code and it's because remember this is restrained by an order diversion or probation agreement of a court of competent jurisdiction so there are multiple ways that an individual could have an order could have been put in place whether question  question started to take you on but i see or you know i designed in the aggravated assault statute there's when we get down towards the end the key words the judge rogers was focusing on it says intentionally or knowingly attempts to cause or causes bodily injury or commits or attempts to commit an assault does the intentionally or knowingly modify all of those verbs or does it only modify the first one attempts to cause or causes bodily injury see my time is up man so that quite yet thank you we believe it only modifies the first two part of the reason we believe that is if you look at the assault statute that it refers to that gives its own set of very specific mens rea elements intentionally knowingly or recklessly in section one intentionally or knowingly in section two intentionally or knowingly in section three so we have a number of different ways that the mens rea is required into the assault finding that the aggravated assault statute intended to modify that without specifically listing that understanding that seems to be reading something into the statute that simply isn't there what difference does a make if if some three says intentionally or knowingly you're right your honor but i think part of the problem mean we could argue about whether the intentionally or knowingly in one statute applies to commit an assault or the intentionally or knowingly and the other one does but it doesn't make any difference does it well if we get into section a one where we're talking about recklessly yes but then when you talk about a whole idea here was that it was three hundred that what my argument is not that it's three it's not that it's one my argument is that it can be violated in multiple ways that don't qualify as a violent be under assault one your are just looking at the conviction yes but if you look if you're if the court goes to the shepherd documents there was it did good morning using in it please the court edward stanton on the behalf of the united states judge rogers i think you hit it on the nail when you said the restraining order in this case makes the difference that i ask ahead of time do you agree that that the shepherd documents don't tell us whether someone two or three apply here don't ask that preliminary issue i think it provides guns and i actually think it does you know think there's one does it tell us was the basis for the that i mean sheppard documents that are in the record the indictment states that the defendant unlawfully knowingly having after been joined in the order of general sessions criminal court port of company jurisdiction from any way committing an assault against nineteen americans who commit an assault against  bali thirty nine thirteen one hundred two i can see how that makes clear which of the four that are part of one or two see is that issue but i don't see how that determines which of the definitions of the fourth part of one or two c was the basis for the prior conviction so my question clear i believe it is your hon whether the sheppard documents tell us about whether one two or three was the basis for the park commitment because conviction or do that i'm not sure that they do it so if they don't which you're conceding now i take it well then are agreeing  to use the word conceding then we just have to see whether one of the is not a crime of violence under the statute which takes us down to three which seems to be the to me at least the the the least likely to be a crime of violence and that gets you to where you started which is whether physical contact that's extremely offensive or provocative in light of a restraining order is a crime of violence is that right it's that why were there i believe the owner when the district court looked at the separate documents he considered that and under whether it's sykes thirty nine thirteen one zero to see anybody lation is always going to be an intentional annoying crime so i just don't understand how that statute right and it's got one two three in it now either our analysis is we've got to look and see whether any one of those could be not a crime of violence  which case you don't get the the a c c a doesn't apply or the shepherd documents tell us which one of those was the basis for the crime and we'll look at that one only and i guess you're saying the shepherd documents don't tell us whether it's one two or three but then i thought you were saying it does tell us whether it's one two or three i believe this letter yonder it does tell us it's which one does it tell us it is them and how does it tell us that by it i mean shepherd documents the shephard documents tell us that he was convicted under one or under two or under three in this case it doesn't you want to but lesson that if the shepherd documents don't tell us then you've got to show that another of these three or the the likeliest example of them is number three but i guess you could argue about number one as well and that's what gets us to where you start i just trying to lay the groundwork for where you started your argument yes that makes sense and i'm following your honor i believe that the shepherd documents is under the category a modified approach right in this case the government would submit that this act of violence is aggravated assault as contemplated under get to the shepherd darcus is the government's position that you don't have to get there because in and of itself it is certainly under again sikes conduct when applied that it creates the possibility of confrontation that creates the risk of serious physical injury that's just saying that all of the think all of the three possibilities under attempt are categorically crimes of violence regardless of that's correct ok that's the government's position all right so well that's that's still gets you to the question of whether would amount to an a c c a violation you agreed to have to argue that that's absolutely correct legree with so we know we may say it differently we're all coming to the conclusion that you've got to show at least that back to the restraining order itself if you follow her bottom line argument is that the restraining order is what makes a difference the restraint absolutely the restraining order is what haydn's this even if all they're doing is spitting or cutting he absolutely even if all they're doing is spitting or cutting here and it's more likely and then restraining order you're going to have kissing well somebodies infatuated with somebody and there's a restraining orders stop bothering you're stalking him or something like that and they go up and they're infatuated they go and kiss the person is that a crime of violence absolutely if it isn't violation of a restraining order a court is in joint and if you go back to look at how the restraining order comes in the place typically this is something where there's been conduct that the victim goes before court sworn testimony evidence or what have you you want to get this in line and so obviously there's been some history or pose a danger of threat p for the court the court in turn provides the victim protection by issuing that restraining order going to straining order have to be in the context of domestic violence or could it be in any context whatsoever it doesn't have to just be in domestic violence that's typically the  obviously sometimes or items of minors that some of these restraining orders are issued ex parte but the go back to your point earlier judge rogers is the restraining order absolutely makes a difference so whether it's speeding of blowing or cutting hair when the court stepped in and when the victim comes before the court and six protection order protection joining on the defendant from doing these acts it is heightened that zone in the expectation of privacy and that expectation of safety has been violated not only that's been violated but the order of the charge constituted a violent felony under the a c c as residual clause the main risk of burglary or rogers the court said in james from the possibility of confrontation between the offender in the victim this is exactly what we here have here the possibility after a restraining order is put in place the risk is present whether or not the burglary is completed so that the james record in again is the potential risk that encompasses even mere possibilities of physical injuries and if i could just give an example maybe to try to illustrate this  your honour's with regard to the restraining order in how this balances out with robbery or burglary rather if you have for instance an ex boyfriend breaks up with the ex girlfriend  the level of potential risk in comps in mere possibilities of physical injuries well with the restraining order you take that same ex boyfriend in the same ex girlfriend that ex boyfriend with a restraining order in place goes over to that residence that even more still to a level of expectation that that victim that girlfriend will say hey wait a minute you are still showing up in a court has told you to stay away from me to unjoin you from this type of conduct so absolutely this is where we start here back to what you s the restraining order notwithstanding the shepherd document but the restraining order that makes the difference in making this indeed about felony under the residual clause of the a c c a is there a problem that the assault statute one o one the three parts and one of them part one says intentionally knowingly or recklessly causes bodily injury i don't think that's a an issue at all in fact i think that clarifies the recklessly i thought that there are cases that say that recklessly causing bodily injury would not constitute a violent felony and you're correct but when we look at the there's no dispute by the defense that we're only thought at the end of one zero time see it says intentionally or knowingly attempts to cause or causes by the injury that's correct in the tennessee legislature left out oh it left out recklessly there and so if you're so if you're under were you you have to be intentionally or knowingly to be under one or two that's correct john and until and unless the tennessee legislature changed that they could have easily put the term recklessly and wanted to see but again it goes back to the restraining order the engine enjoin in an individual from certain conduct that it appears the legislative intent was just that that it would be intentional  would also cite your honor the mitchell case that we provided with a twenty eight jail letter and again in that case i want to see is not only you came to berkeley where it's risky for the reason that it can end  confrontation leading to violence but it's also very similar to robbery and it goes back just so the illustration that i just gave again when there's no question that there will be a face to face confrontation where they're going it's cutting here whether it's speeding that someone wears the underline burglary you may or may not encounter someone when you go and try to steal the golf clubs out of a garage or go to your ex girlfriends house once you don't want a lunch break but when the restraining order is in place not only is it more so it can want to see behavior and of this type of conduct on domestic violence when you mention or asked the question about domestic violence restraining order said yes it could come into place but that's only under that umbrella but otherwise no the statute is very clear the mens rea of the statute is self so councilman under that only the domestic violence and again we can't as desk himself we can't get into the underline activity or conduct of the parties and so for that reason i would say it's situation in the james case burglary is a situation where you're in a person's home or their business or and there's a possibility of connotation there we understand that and there's also an invasion into that home robbery is a situation where there's a threat or an act of violence trying to take someone's money this is a case where a protective order restraining order travels with a person so they can be anywhere they don't have to be in their house there doesn't have to be intent to take money to try there doesn't have to be any threat of violence there is have to be any of those things but why is it the idea of the bubble around the person who has the benefit of a restraining order that it's as if they are in a secure spot where ever they travel they are your honor in the person can be convicted of that crime we understand that but that doesn't mean it rises to the level of a crime of violence excuse me a violent felony for purposes of the armed criminals think about the ways that this can be violated in that bubble if you're not only talking about cutting a person's hair you know only talking about the possibility of unwanted kissing as judge roger seems to like to use as an example and also which came from the the tennessee so to see court but all that has to happen is a reasonable fact finder of fact a jury has to find that a reasonable person would have been offended in some way with an office of contact so let's go down that road what if an individual who's under restraining order throws a paper airplane it's on why would that qualify a jury could find it would so what we're saying is and there's other examples of the shooting rubber band walking by someone spilling water on them any of those are possibilities that a jury in the saved to see could find is that's that's the problem here here on earth is that what this court is doing is you're allowing up you're opening up a world of possibilities simply because a person is under a protective order of some kind and as the government concedes it doesn't even have to be a domestic violence protective or it can be a number of different types of protective orders like well your honor child custody was one that the government brought up there have been a number of protective orders have been put in place regarding nuisances in the state in shelby county protective order as a result i see my time as a lapsed thank you for their question well you know i don't i haven't seen how going into a club is causing your attempting to cause bodily injury well that's something to commit an assault against an individual has to be what the restraint is it's not any restraining order it's a restraint against doing these particular things doesn't sound like walking into a club would would qualify in your honor if i could respond and i think you're probably right and i think that one of the problems is that we have th statute that leaves it wide open it becomes somewhat in leave open the example that you suggested well it's open i'm trying to figure out every example that could possibly come into play under the statute that's what so difficult i asked enough