court committed reversible error when it sentenced mr haney to fifteen years in prison on the basis of an illinois burglary conviction a pennsylvania aggravated assault conviction and an armed bank robbery conviction we have a couple of threshold issues in this case first as the government has now conceded mr hayes burglary conviction so we convictions do not qualify as generic burglary under the arm clear criminal act in taylor versus united states crime illinois burglary law is too broad to constitute generic burglary and two of these three elements first under the camp it does not require proof of an unlawful or  a second threshold issue is that whether it was raised by the government as to whether mr hayes aggravated assault convictions are probably first properly they are not for two reasons first they are not properly considered violent felonies as there is no element of the use of force and second mr haynes even if they were there is no evidence on the record in the record that they were committed on occasions different from one another i'm going to begin with that argument is different occasions because this is a new issue that was not raised below and it bears consideration  the government has urged the court to affirm on this separate basis but and while arguably that this argument is waived even if not it feels on the record the government's bird it that the offenses belong to separate and distinct episodes such that the defendant had a meaningful opportunity after each offense to contemplate his actions and abandon his course of criminal conduct there are several problems with making such a finding based on the record on appeal first there is no evidence that such an opportunity exists all we know about the offenses through the sheppard documents  in the record is that they were committed on the same day against three different so the government argues makes several arguments predicated on assertions in the p s r about the nature of these offens however reliance on the assertions would be inappropriate in this case first the p s r does not bear the hallmarks of derivation from shepherd approved sources the cases in this case in this case we're district court so mr haney had no reason to object to immaterial in hers the unfairness of it moreover the unfairness of relying on facts from other proceedings that the defendant had no reason to contest at the time is a primary reason that courts apply the categorical approach in the first place in math the supreme court specifically mentioned this reason saying that a defendant may have no incentive to contest what does not matter under the law to the contrary he may have good reason not to the reasoning behind this approach should apply equally in this case there was no incentive for mister m contest the arguments or any potential errors with respect to be these three or the p s r's characterization of the three convictions because it wasn't an issue however even if this court were to look at the facts in the p s r it cannot conclude that the offenses were committed on occasions different from one another the p s r alleges that mr hand he was convicted of injuring three people with gunshot wounds to the abdomen on a single day in a single bar it is unknown how many shots were fired it's at least conceivable that you know in a crowded potentially a crowded bar shooting a gun one time could injure more than one person and even if we assume for purposes of argument that he fired three shots it's inappropriate to draw from that conclusion that it was three separate occasions for example if we if we take the example of a bar fight and there was you know with multiple aggressors something got out of hand and if he had shot more than three shots but he fired the shot damn damn damn we're looking at a situation where it would be a significant stretch to argue that he had a meaningful opportunity to stop and consider whether or not to pull the trigger a second or third time if you have multiple people coming at you it at once this is not it's not comparable to the case law for example where someone commits three burglaries back to back but has to travel five minutes in between or for something similar to that affirming on this basis would pose the additional problem of injury the mens rea element of the statute is too broad to qualify as a violent felony is this court has held under the material indistinguishable  sixteen of the criminal code the reckless crimes are not crimes of violence because they do not create this use of force and since here we have a may please the court counsel congress says imposed a fifteen year mandatory minimum penalty for people it's labeled armed career criminals those are people who have fed at least three violent felonies or controlled substance offenses putting aside mr cheney's burglaries which we do he still has for an armed robbery and shot not one not two but three people  precisely the type of person that congress sought to impose this mandatory penalty upon in the district court properly imposed beginning with the aggravated assault convictions this  is that they have to be sequential crimes and not simultaneous crimes and is use the analogy of a card game where the thief does a single stick up pulls a gun on six card players that's a simultaneous tick up of those six individuals but if the thief then pulls the trigger and shoots three of the people those are sequential crimes not simultaneous crimes  the facts in the p s are that are undisputed we believe are appropriate for this court to consider and we believe they're in line with shepard the problem in the sheppard line of cases is judicial fact finding but it missions such as that a  disputed neither are the facts in this case with regard to these aggravated assaults that he shot three people in a bar in pennsylvania so we believe that it's admission by the defendant in lying with or similar were three aggravated assaults we would know that there were three different victims and we would know importantly that there were three sequential sentences imposed for those crimes and the se supports the conclusion that these are sequential crimes especially under pennsylvania law which required separate criminal acts to receive separate sentences we don't think that it is conceivable that a single bullet went through the abdomen of three victims and the wrist of the third victim we don't think that is a conceivable notion and we also don't think there's any support for the claim that this is somehow  self defense that there was simply a bar fight in the defendant was defending himself we think that aggravated assaults half and on separate and distinct occasions because he had the opportunity to stop pulling the trigger after he shot the first victim with respect to the use of force we believe this court's case in waters is determinative on that where it held that withholding medicine causes physical harm albeit indirectly and this qualifies as the use of force the thomas case the defense sites is not withholding medicine it was withholding food and the child in that case was starved essentially to death and the pennsylvania court upheld an aggravated assault conviction if withholding medicine qualifies as the use of force we believe withholding food likewise does and then finally with respect to the mens  a we think the supreme court's case and was seen is extremely pertinent here and we also think it's important to focus on what is the recklessness pennsylvania law requires it's in their words not mere recklessness  but erect listeners such that the life threatening injury is almost essential to occur if that's a sufficient mens rea and we believe to support the notion that this was a violent felony unless there are any further questions from the court we would rely on them but i think there was no as to whether or not under federal law these convictions were that work actually committed and suffrage so i would submit to you that pennsylvania is a determination of what constitutes a single criminal act has no relevance to the determination at issue here at this in pennsylvania though is the authority supplemented by counsel yesterday the pennsylvania statutes case says that the question there is whether the state would have to prove additional facts to convict someone and each separate facts there is absolutely no question of whether or not acts were committed in a simultaneous fashion or a would presumably be separate criminal acts different things would have to be proven to show liability for each defendant on each of those simultaneous burglaries however under case law seven circuit case law and federal case law such an act would be a simultaneous act and that would not be separate occasions w hypothetical and i believe it's referenced in kirkland is that if if coconspirators decided to rob two stores or hold up two banks or something at the same time  for whatever reason and they were but but the idea is that while you're while one to find it is committing one of the burglaries they have no opportunity to call ah the burglary for the other  now clearly that is not the case here but the idea is that the pennsylvania case law is not applicable in this court and it ultimately does not tell you very much about what actually  happened i do not know the facts of what happened in these aggravated assaults but that's the that's the point we don't know we don't have a record and therefore at the very least this should be sent back for further determination by the district court and i