please the court my name is lynn hartfield and i represent the appellant robbie lee robinson now since the supreme court's decision in taylor versus united states the supreme court has continued to modify and refine the test for when an offense can it's a crime of violence but the overarching principle in all of these cases that have followed taylor is this in determining whether an offense qualifies as a crime of violence we look in the first instance at the statute not at the facts of the individual case now there's been two recent cases that have refined significantly the analysis that courts must undergo the first is the de camp case and in that case the court made clear that before any determination is made or any other determinations made  the sentencing court has to first determine whether the statute of conviction is to visible or invisible and indicate the court identifies this means versus elements test to determine whether a statute is divisible or indivisible and what they mean by that is do we have a statute that says sport different means of committing one offense or do we have a statute that's really setting forth several mini offenses if you will counselor before we  subsection e criminalizes conduct which does not involve the use of tempted use or threatened use of physical force right this correct your honor and i think that's the first test because we've got to find out whether it was so then at that point it's not categorically a crime of violence right that's correct and then after we get to that point then we get to what you're talking about which is the divisibility that's correct and the government wanted the governments on board the parties are on board have we learned of this statute to where we do not have conduct which does not or we don't have conduct that meets that and so therefore we have to look at the divisibility correct that or i just want to make sure that you are with me on that because we on to the mathis case in mathis what the court said was that in making this determination the sentencing court house a look first to state law and so this case here boils down essentially to a single question and that is what is washington have to say about its own second degree assault statute no math gives us a road map for determining when a statute lists elements or means the first question of course is did the state court definitively answer the question any answer that is yes in state versus smith the washington supreme court was discussing the second degree salt statute and said this statute articulate a single criminal offense with six subsections each representing an alternative means of committing the if that's so matheson strikes us when a ruling that kind exists there is your answer sentencing judge need only follow what the state says now the government is arguing comes back with dollar correct yes the government doesn't that and i'll touch on the fuller case the government has argued that when washington uses the term alternative means that they really mean elements but subsequent decisions from the washington supreme court demonstrate that that's not the case and i would draw the court's attention first to the woodland case which just came out in which the washington supreme court recognized explicitly that when a statute contains a set of prohibitive behaviors it can do so either as a list of distinct offenses or as a single offense with one or more alternative means that sounds exactly like what to camp and mathis are talking about so i think that washington's supreme court recognizes the is in terms of that phrase correct correct and i think the woodland case says that explicitly now turning to the fuller case in the fuller case what you had was kind of an unusual situation in that you had a state prosecutor who charged in separate charges two of the alternative means and the the jury acquitted on one of the alternative means in deadlocked on the other the state then wanted to retry the defendant on the one on which the jury deadlocked and the defendant said wait can't do that that's double jeopardy now the washington supreme court said no that's not the real jeopardy because there are alternative means of committing the same offense in other words second degree assault is one offense if you happen to be acquitted of one way of committing the offense that doesn't change anything in terms of double jeopardy and i think that case is significant for the reason that if in fact these had been elemental that each the section set forth different elements there would be no a different kind of answer to the question is this double jeopardy because obviously if there are two separate offenses then there is no double jeopardy in retrying the offense that that the of which the defendant was not acquitted where there was deadlock but that's not the way the court analyzed the case t court didn't say well there are two different offenses no double jeopardy problem here the court said no there are different means of committing the same offense and i think if you take a simple case like say a battery statute that says  you can be guilty of battery if you kick shove spit punch a person and the prosecutor for some reason chooses to charge each of those a separate offenses the fact that you may be acquitted of shoving or hitting the person doesn't mean that you didn't commit a battery and that's the same analysis that the court undertook and fuller the court said the fact that you were acquitted of one means of committing a second degree assault doesn't mean that you can't be guilty of another means and for that reason the court said there's no double jeopardy problem here now mathis also mentioned i guess looking at al that you can have you can be charged with two different means of committing second degree assault but significantly they don't require jury unanimity and that's an important factor to be looking at because if in fact these were different elements then the defendant would be intitled constitutionally entitled to a jury unanimity instruction on those and the court has said repeatedly that in the second degree assault case a defendant is not entitled to a jury unanimity instruction and that there is no right to be found guilty beyond a reasonable doubt on each subsection morning your honor is may please the court michael morgan for the united states the divisibility issue briefed in the case is actually not in play in any of the cases that are before your honor's and that is for a very simple reason spinning with taylor and his most recently articulated in mathis the categorical inquiry focuses on quote the elements of the statute of conviction mr robson was convicted not of violating the second results that as a whole he was convicted of violating a particular provision and in fact as a matter of washington law you can't figure out what the elements of second degree assault are unless you look at the particular subsection that has been charged there is no there's no crime of second degree assault in a vacuum you have to as a matter of plea washington state pleading you have to articulate the essential elements of the offense so in those are the elements of the offense for which mr robinson was convicted and it is that statute subsection one egg that has to be the focus of whether or not it's overbroad that particular provision as this court held in warrants is not overbroad so this is not a case where there is some ambiguity in the judgment of conviction about how the defendant was charged for example if the defendant had the judgment had just said assault in the second degree didn't mention the statute didn't mention a particular subsection then there would be a visibility issue because then you would need to look to figure out if you go look at the shepherd documents perhaps the information to see which particular subsection was charged but that's not the case here and that's not the case  ther cases we what we have here is a particularized charging instrument so the offense of conviction is subsection one a and again you have to look at subsection one eight figure out what the elements are washington has never defined its second degree assault statute as an assault plus something else that's not how they define it somehow the jury instructions define it the jury each particular subsection has its own set of separate elements i mean they they are to use this court's language from and don't they are quote unquote functionally separate crimes to the language of math or are in the camps there are alternative versions of the crime the fact that washington legislature codified second degree assault in one statute as opposed to seven statute doesn't change the fact that each particular subsection has its own independent elements that must be proven if then if that's charged like in this case had mr robson gone to trial the there's no question that the then state would have been required to prove an intentional assault and the substantial bodily harm they could rely on someone charged provision of the statute so i think that we're putting the cart before the horse here we talk about the visibility to the extent that it's my understanding and i guess you could lead me through your argument is my understanding that you stipulated to the fact that if you're charged under he that there could be conduct which is not according to the federal statute in other words it's not that under e u could have conduct which is which does not involve the use of them to use or threatened use of his or who agree with that i do agree with that so it seems to me then categorically he would not be a crime of violence that that the fact that he was only charged with see that makes a difference yes and i say that because the categorical inquiry focuses on quote unquote the statute the elements of the statute of conviction and again you can't figure out what the elements of the statute of conviction are unless you look at the subsection i mean washington does not define assault in the second degree as an assault plus something and then it can be any of these things it has functionally seven separate crimes of second degree assault as i guess that's the reason i question you just a little bit if you're suggesting that the whole section which is f and still have assault and the punishment doesn't change and the jury doesn't even after agree as to what it is they're charged with or doesn't even after unanimously agree with what the analysis i've got to make if you're going to grieve that one absolutely there's no categorical match and then you're going to say the next thing you've got to say is in order to get go to match you've got to have a divisible statute that's what the cases say well your honor i think it's a question of first premise is when mathis and taylor say the elements of the statute of conviction statute of conviction are they talking about the statute as a whole are they talking about the particularized statutes charge that seems to me to be the nub of your whole argument that is if i make sure i understand it and that is because a particular subsection was charged that you know have the issue raised at that point as to what wasn't charged and what might have gone beyond a generic statute that a fair statement that's correct and i would point out but then if that's your argument it doesn't seem to me that your stipulation that that is not a categorical match well the govern the government in the face of that argument you're making i don't think so you're now because the government is making two arguments one was charged and that you have to look at one eight to figure out what the elements of the statute of conviction are the alternative argument is if you don't agree with that and you say the statute of conviction is the statute is as a whole the government would agree that the statute as a whole is over broad but we would argue that it is divisible because if you actually parse the washington cases your honor your honor as does washington use means the way mathes means and they absolutely do not a means under mathis is a fact a fact to take an example assault with a deadly weapon it would be the fact of what type of weapon that's what it means is for mathis alternative means as they use it in washington are essentially elements of a crime they're talking about the difference between assault resulting in substantial bodily injury or assault with a deadly weapon that's what they're talking about they're talking about what are definitional e separate crimes they all have different elements different  for all those seven subsections then it's not a singular offense if we disagree with you on your second premise as well i go back to the first  your first premise is if you're charged under one you're home free from all this analysis right that's correct and what's your best or for that and now well there are two key i've been able to find two and i should back up  are more novel i mean that is not the end of this well if you know it short circuits the whole process and i would point out that there are two cases from this court united states versus willis and united states versus both the charge subsection and that follows when used again it follows from the language of taylor and mathis that you're looking at the elements of the statute of conviction you're not convicted of some of this second degree stuff so as a whole with no specificity again as a matter of washington law you can't figure out what the elements of that crime are without that and i see that my time is up but i have ten more minutes com you just a few points the government is still arguing functionally this is a divisible statute that's what the argument right now is that these are separate offenses and that is completely contrary to what the washington courts have said but more importantly to camp in mathis say you don't even reach the case file until you've looked at the statute in determined one whether it's overbroad and two whether it's divisible or indivisible so it's actually going to argue pick one one day for example and start marching through them and one and stands on its own two feet and then they say to two cases from the circuit that have taken a little bit different approach what is your response to that my response to that is that the prosecutor can't control whether it offenses the prosecutor's charging decision can't control whether an  fense is a crime of violence or not and we don't even get to look at the case file until we've made the analysis about the statute taylor has and all of the cases that followed have said this is not about the particular facts of the case it's not about the political or circumstance of the case it's whether the crime itself whether the statute defines a crime of violence or not so i think it's the government who's put the cart before the horse not the defense but the this co at what this particular charge was until they've conducted the analysis under matheson decamp what about your learned friends citations of the statute of conviction the statute of conviction here was a one a was it not and i would argue that the statute of conviction is not one eight the statute of conviction is second degree assault one was one eight was the particular means by which under  statute yes but the statute of conviction is not the particular subsection the statute conviction is second degree salt do we have any authority for interpret ing the statute of conviction to be anything other than what is charged but in in my brief what i noted is that this court has said that since to camp in mathis you don't get to make that analysis until you determine whether the statute it overbroad and then whether it's to visible or invisible and it  would be backwards to look at the case file and determine which particular subsection someone was convicted of you can look to search the case file to find out what statues mentioned but not the particular statute charged that's correct  s one statute and that washington is record is made clear it's one statute that can be can be committed by different means and it shouldn't be that the prosecutor gets to determine whether it's a crime of violence or not by their charging decision we're looking at that's what taylor in every case after that has said it's about the statute and the reason for that is that we don't want these kind of arbitrary distinctions between defendants based on things like what the prosecutor charged or what the underlying facts charge might have been and what kinds of plea decisions the defendant makes that's not what the federal courts are getting into the federal courts are looking at the statute itself thank you looking at the termination thank your honour's thank you both for your argument united states versus robinson is submitted well now here argument in the united states versus slade