for the united states and like to reserve two minutes of rebuttal time the court this court previously held the crimes committed recklessly cannot have as an element the use for attempted use of physical force the supreme court held  and like to start by focusing on the elements that are common to every reckless aggravated assault in the state of tennessee if you don't mind let me just can you just remind me again what are the specific words that were interpreted in this case and what were they and why xen your honor in boise the definition was mr minor crime of domestic violence use or attempted use of physical force and it did not have the against another  same except against her i believe in the crime of violence godless crime of violence situation there's also the threaten to use which is also and addition ok but the use of physical force language is basically the same for does it tell us it's the answer in every case does it know your honor ok so that rises the question of what does a voice tell us if anything about mr harper and the reason i asked that is that was seems very tied to the particular statutory ski that is involved in that case and it seems to me a relatively if not almost completely but raft of analysis about how the court is supposed to go about this in a situation that might not be perfectly analogous to the one i was in we see it differently your honor and i'd like to explain why into a section two way of the voicing opinion there is a textual analysis of what the word used means all it and that's what the opinion says twice says the only word we're examining is the word used all of the examples provided the plate throwing the door slamming the dictionary the sources of law the dictionaries the case law none of those things had anything to do with the domestic violence context there is another section of the of the of that section section two b discuss statutory background the purpose of one twenty two g not but it says it tells us that statutory text and background alike in other words these are independent bases for the court's conclusion and holding in boise and the like not together or jointly but alike and it says so too so in addition to this text textual analysis which was not a thing for everybody we think there's more than enough for us here to and we have more than enough about what i  more that more than enough of a leg to stand on and the question is it when it when you get down to it it is recklessness closer to the knowing and of the spectrum or the accidental end of the spectrum and that if we if we take your argument he agree with that doesn't that set up such a broad scree as brought scheme that you would automatically sweep in actions and activities that would lead to an absurd if not comical result no your honor we see it because we actually would look at it the other way that aggravated assaults to exclude that from making the violence and handsome innocents enhanced meant for having a prior crime of violence would actually be much more comical some measure of subjective knowledge that that injury will occur so again just like my better that may occur correct the only difference between knowing conduct and reckless conduct wheezing tells us is the degree of risk that that injury would occur in knowing conduct there's a practical certainty and in reckless contact it's being aware of that disregarding consciously that substantial and unjustifiable risk and what we see is is that's the spectrum dating back to the supreme court's decision in layo call you have the knowing conduct the example used in leo call was pushing someone and you have accidental conduct stumbling and falling into someone and local tells us accidental conduct is not going to get us there local also told us we're not going to deal with recklessness today this court a couple years after leo call him portela considered the quote consider dicked of layo call and said we don't think recklessness qualifies mcmurry which dealt with this statute that we're dealing with today relied squarely and soley i should say on portela and leo call and said that reckless conduct is excluded what what we believe winning tells us is that this court took the wrong path right and took a wrong turn and boise now provides us this road map a textual analysis of the same word in the very same phrase that that gives us these examples of plane throwing door slamming these are  that involve the conscious disregard of a substantial risk and again reckless aggravated assault in the state of tennessee every one of those crimes involves a bodily injury every one of those crimes that in every one of those crimes the injury is either serious  there is a deadly weapon involved and in every one of those crimes the person has consciously disregarded is aware of and consciously disregards this risk of injury the words that justice kagan use in boise and deliberate decision to endanger another that's what's happening in a reckless aggravated assault you are making a deliberate decision to endanger another and i get a little lost in the careful analysis i mean there are there  might dictate that the sort of assault that's there is not in fact one that should not be categorized as a crab but it's sort of a get after that it gets really hard we don't disagree your honor and we would also associate ourselves with the notion that common sense would lead us with would lead one to say someone who had no exposure blissfully to any of these the sentencing and answer mitigation and came to it as a matter of first impression and thought should aggravated assault qualify as a crime of violence will surely it should right and  someone was doing something that might well cause another individual harm precisely it is not accidental conduct and it is taking a deliberate act volitional act a deliberate decision to endanger another just like mr harper did in his predicate reckless aggravated assault and we use the example not just a mr harper's conviction but the other state convictions that are state cases that we included in our brief just to illustrate kind of what we what it is we're talking about and this is not just givens it may be horrid to a degree but if we were to kind of ask ourselves you know perhaps some of this jurisprudence has gone down the path of that there's a faulty g p s involved like justice alito talked about in his dissent in mathis and and we've kind of gotten way off base as to what the congress in the senate's in commission could have intended with these crime of violence or violent felony enhancements and this one we would submit is actually not that hard because we have the road map we don't have to rely on a faulty g p s we have a rope road map you're looking that is one that seems to rely pretty heavily on the particular statutory scheme in that case right and the route and it the in or wherever it is in the opinion that court takes pains to tell us it's not deciding the overall question and it doesn't i don't think that part of the opinion if i'm recalling correctly gives the seanie in its to what the proper roadmap i i think that's fair your honor it does not tell us what the answer is but if that's what we would characterize that as a routine act by the supreme court i don't need to interrupt you but i'm about to shut up so and let you finish arguing what are we to do with the fact that we should probably be overruling our prior precedent as a panel oh only i clear that the supreme court case is inconsistent with our found the situation what with our prior decision what if it's just a murky we think it's well i think if it if it if it is just murky then it's tougher for us to to to get you to move that boulder over the hill it's not murky in our in our view right i mean in our view this is if if if we study the section two way of this opinion which is an independent basis for the holding invoicing if you look at it closely one looks at it closely and in its all discussion about what a reckless assault is and there is no good reason sentence for those who have engaged in this conduct before and then possessed a firearm later that's what they're for yes and and there is no again persuasive reason not to apply what the  context the footnote invoicing that says we're not going to decide this i should note only actually mentions sixteen section sixteen does not actually mention the guidelines crime of violence of the year or in career criminal act at all and there may in fact be  some daylight between section sixteen and what we're talking about today section sixteen includes the property of another as well as you know just the person a physical force against the person of another that's obviously not what we have to deal with today we're dealing with a guidelines crime of violence definition that is identical in pretty much every meaningful way the last thing i do want to say is when judge catholic asked about the statutory text and the difference the fact that there is no against cla opinion there's a victim that is a domestic relation in that statute obviously so you're obviously using it's implicit in the statute that this force is not just being used in the and in the world somewhere it's being used against this domestic relations so it's it's basically the same phrase we've learned what physical force means and here and we seen we have learned that mens rea is indifferent to reckless intentional or knowing that that reasoning should apply here back and get the arguments that were different for me today and i stand here representing areas harper i represented during the sentencing hearing about going to trial we did not and  when district court judge asked me why should i when your favor is that there is binding precedent the president of course is you are part of that majority chickens and i'm i'm a little puzzled with the government's argument i understand argued that there's a very different purpose for us in context involved here in castlemaine then there would be for on clear criminal act that would be for i guess for guidelines for my purpose and that's that we're talking about domestic terms is an independent basis of the court's decision the rest is arguably dicta i mean justice kagan concludes that that section by saying inside there is no exclusion from this is the lynchpin here of whether the unhandsome was properly applied it's hard to see how we are not bound by the court's construction of that very w statute i mean the statute that they were specifically looking at really was a definition statute that's nine twenty one eighteen u s c nine twenty one i think it's a thirty three a and that that provides that definitional and the word used within that definition but they're specifically talking about the threat of a domestic violence abuser and and what's different i mean that does go to the purpose business we as a separate hermetically sealed part of the opinion and i guess the concern i have is the court has told us what use means you could argue with the court's interpretation i mean to say that one uses force if they engage in an act of employing  it you know it's not a slam dunk as sort of you know just ordinary understanding interpretation but you know we kind of have that here and if we disregard it then you know potentially wouldn't put it in sort of a narrow pejorative not that you're trying to be pejorative it's about you know ordinary understanding of english and justice kagan so as this is the ordinary understanding of use and  that's like full stop the guy loses as a result of that in the case but for sometimes words have different meanings even in castleman the violent force meant something entirely different when we were talking about what by domestic violence context as opposed  to say in an armed criminal act context sometimes violent force could mean something different and does mean something different really based on the fact that most domestic abusers are prosecuted under misdemeanor statutes and those come from the common law so th i mean what i have to to question tory i mean what about the context here changes the meaning of use perm what she says it means in that perception and then the other thing is the core case that our court relied on only a cal she just completely vaporizes for this purpose i mean she says contrary to petition or his view nothing in layer cow suggests a different conclusion i e that  dividing line between reckless and knowing conduct i mean that that is exactly the opposite of what our court said about that case and whatever you know marie or whatever and that's the strongest argument for it that the government has but i do think we are talking about going back to context and purpose becoming more important because we're not operating in a vacuum we're operating are we going to enhance an individual for a sentence or are we trying to keep guns out of the house mean is you would say it's not clear that you in this context it's only you know knowing the intentional i would say go back to the murky word is clearly that it means no i'm sorry i think they were very clear about what they said eliot call and that is the strongest argument for the government but i also think they did not come forward and say ok for guideline analysis for a c c a analysis these are all the even sammy hagar lyrics but we are talking about apples and oranges here we're talking about two different things and i think with judge gibbons had to say and we judged on it's a also is that it seemed that this analysis was tailored specifically to that statu that statutory analysis and i think it's extremely important to say what you already know is that had this been twenty two g was promulgated based on is the statutes before them thirty five think thirty five jurisdictions would have no effect at all so we would say well thirty five jurisdictions we're not interested in protecting those victims against domestic abuse or coming home with a gun so in that sense we do end up with something that's i don't want to say comical but something that doesn't make any sense and sometimes we have to go and does it make sense yes there's a textural analysis yes there's a technical analysis and then what is it that they were the congress was trying to do with nine twenty two g nine and then with the definition section two nine twenty one a thirty three a and i one hundred percent understand why mr rich would bring this in he's an asset to his office is a good lawyer but in this situation when judge folks made a decision and  client well you know there's this case out there but it's apples and oranges i think we didn't do that recklessly ourselves i think we did that intentionally to explain to them where that's what state the law was at the time and i do not think when we have the apples based on either arm for a criminal act but with with my case with guidelines you would you end up with absurd results of someone driving down the street i guess the car can be your your dangerous weapon driving down the street a little too fast is that person going to be don't want to keep the rest of violence abuses to come home with a gun but the court issues some pretty strong language in the case so what is your best argument for why it should not be extended beyond domestic violence given that these other courts in fact i think is like a family domestic strangulation something very horrible sounding but i guess reckless was part of the statute but it did again involved a domestic violence type of crime which i think makes it a little different than what we're talking about here i mean if you're going to get down to one family member in very similar actually getting to the statute itself and the part of the statute that they say that mr howe had violated as opposed to what the facts are and and believe me i've been hit struck many times from the bench for talking about facts so it's a great pleasure to say that but it also does distinguish this from basically a felon versus a domestic violence situation and then and it's circuit  someone so i think we take those kind of out of the box situations and that creates i guess what the circuit split is as opposed to i guess circuit one in bennett or did in that in the bennett case although i know  rich is going to say over there talk about the rule of law and that's what it was based on but there was a very careful analysis about what the distinctions in the statutes were distinction between domestic violence statute nine twenty two g nine and then whether or not the not directly but i think it's fairly close in point on the in the lower case and the globe or case again that there was nothing in was seen that or blessing or castleman that should change the way we look at reckless crimes anyway that's an unpublished opinion glo as in the brief you referred to a first circuit i wasn't i didn't quite get that context but it's also a first circuit case that has concluded that the government's position is correct actually no  do i just didn't have it today but the good lord that he is he did let us know that they're there i think i'm not creating a circuit split at this point although you know that when somebody is going to get their workers here is absolutely true and your honors i am asking you to affirm the district court and district by the president that's before unifiers any other questions that i can answer be happy to do that  honor i just make two quick points first about the other circuits it is correct two two and half weeks ago the first circuit came out with a decision that we actually don't think squarely addresses this if it's  enough is fair and what happens is they basically they would get a good go through both sets of the arguments and they kind of throw up their hands at the end of it and say well we're not really sure so the rule when it applies and rules for the defendant sure and there was i do want to make that apparently at the end of last week the eighth circuit issued another decision called fields which maybe cabined its previous decision that goes our way the fog decision this is certainly something that's being discussed  with we can obviously see that at the district court level we do think it's meaningful that two circuits have have gone our way and published opinions since we've seen and we also think i think the second thing i wanted to say back to m only overall legal principle but fair your honor i think at the end of the day we're not it's a categorical approach here to right i mean we only raised the offense conduct shooting his brother as an illustration of what what's happening in these aggravated assaults but when you take away leo call and we believe that basically the opinion i'm always seen does eviscerate that reasoning if this was a get it was a gap filling exercise a mcmurry court has told us that the supreme court has told us that we've filled the gap with the wrong rule the court should make a dream and well we thank you both for your arguments i don't know that we're happy to welcome the discussion but it seems like we're going to be required to a i'm can't recall what district it's from but i have another of these tomorrow so there's more than one percolating in our court at this point so thank you we'll consider the case carefully