under the arm career criminal act would you hold your thought on that for one second your opponent last week noted the walker case do you believe under the walker case we should just remain and in this case  i wouldn't argue against it to hedge i certainly would would be in favor of that would you believe the walker case requires history i don't know the answer to that frankly have to go back to your argument could you know analyzing this particular statute in place we start i think is to determine whether it's a divisible statute to determine whether we use a categorical approach or the modified categorical approach this is a divisible statute in that it can be violated in two different ways the first element of it is simply a theft but then there are two second elements and one of which is just doing one of three three ways that are set out in the statute to violate the second element where it gets confusing at least to me these three ways of violating the second element apply to  both the second elements one being just something to further the theft the other being something to further an escape and so consequently i think the district court took the wrong approach you know musing in the modified categorical approach in looking at other documents to determine what to do in this case the reason i say that is because one should take a look at these three that you have to take a look at these three ways of violating that second element and order to determine alleged here because we have to take a look at it there's two parts to leave under shepherd deciding whether or not use the categorical categorical approach or the modified category approach the first step is is it divisible this is divisible clearly the second step just does one of those divisions lead to a nonviolent crime that's where you come down to these three the you know the of salt the threaten somebody th you threaten to commit a forcible felony and that applies to both second arms what applies to both those three things in other words you either have to commit the theft by doing one of these three things or you have to escape doing one of these three things but isn't the first part divisible between theft and escape yeah all right so we know this case involved the theft based on the charging document and then i think the argument would go that we then look to see whether involve number one two or three in order to apply the second element yeah right that's correct and so and so the charging documents here show that it was an assault it was alleged for the second well that that's where we get into another argument with regard to whether or not the court properly used i in the courts on footnotes to the rule and one court said that that calls into question has called into question as to whether or not that's an appropriate place to look for the charging documents because we're under shepherd which is based on a pretty it's got to be something that the courts have said is reliable because it's either been admitted to by the defendant or because it's been proven to the court and in this particular case we were talking about what the  judge just record did look at in particular the complaint with regard to the facts all of a complaint is a document that is prepared by a police officer and it is you know the answer to that i thought i don't want to leave her i'm the courts will sometimes look at the minutes of testimony and in fact i'll ask the defendant if it's ok to look at the minutes of testimony i don't know that down to the point where i'm looking at the rice case from this court i think the majority opinion in the rice case shows that this is not a crime of violence if i can read just a short little blurb from that case rice argues that a person can cause an injury without using physical force for example by offering his victim a poison drink the circuit courts that have considered whether a person uses physical force in causing injury through indirect means such as poisoning have reached differing conclusions we believe that castleman which is us supreme court case resolves the question before a court however because there the court held that even though the act of poisoning a drink does not involve physical force the act of employing poising poison knowingly as a device to cause and here's the important words physical harm does in this particular case of the three parts where they describe how to commit the second element may or may not include while it doesn't close assault because the ultimate harm here is theft not physical harm all of the suggested nonviolent things that just judge kelly put in her dissent and that decision would apply as showing that there are ways to commit this crime without committing a violent act because the ultimate result is not violent with regard to the judge just court judges approach to this and i going to save some of my time here but the judge judge looked out the pre sentence report and gleaned facts out of that i don't think that was the purpose of sheppard i think the purpose of shepard was to determine which of the methods are violating the statute when you already determine that one of them is nonviolent and so i don't think we even get to the point of looking at any facts in this case which are as i said before i don't believe are supported because they have not been shown to be proven or admitted and i will yield the rest of my time f that the burden of proof is on the petitioner to prove that the residual clause was used and that you should look to the law at the time of the sentencing and the question about whether the should be remanded looking at the judge's order  the district court did say on page four of the order the movement must prove that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence in cited a number of cases for that proposition preparing the pre sentence report and then the court basically now the twenty five petition here is one straight little paragraph about johnson right well that's not correct it barely takes eight or ten lines right that's right it's only about johnson right that's right and the district court here did not follow walker course walker wasn't out yet but did not comply with walker in terms of determining whether the claim here relied on johnson's new rule th why can't the district court just say we can assume for the sake of analysis of that this claim relies on johnson or that the residual clause was involved and the movement loses anyway because the robbery still counts you think walker prevents that and i can understand how it's not like it's a jurisdictional question was whether the whether the movement wrote all relies on johnson or whether the residual clause was involved in the original sentencing it's not a steel company situation where there's no standing unless we decide the first issue isn't it basic appell litigation one o one that you can always affirm on any ground and assume the predicate element and decide if the person loses on the second element your honor i haven't i haven't spent a lot of time thinking about that as a plight of this case i guess the question would be what if the court mistakenly relied on the residual clause and it wasn't a residual clause case you could you could you could potentially run into situations where necessary decide whether the person was sentenced on the residual clause in the first place and or stand that but if the robbery counts before mathis and aftermath of this then he's not going to win whether he view is if the court determines that the record is not good good enough to determine the walker issue then of course remember to be appropriate to decide that i think on the you know i have you know  most of the brief involves the matheson the divisibility issues and we do we do believe as outlined in our brief that the robbery statute is divisible and the assault statute is divisible and seven ojt point one of  e one of the iowa code is also a divisible and that the court can look at the complaint and affidavit as one of the shepherd documents to determine that and so it's your best authority on that that we can look and another doc which i don't recall but that was the court didn't directly decide on that and shepard says you can use not only charging documents but comparable judicial records a complaint is a comparable judicial record the question that's been raised in cases like thornton is if a defendant was indict at a trot was charged based on a trial information after a complaint how can you tell that what he pled to or what she pled to is the same thing charged in the complaint so even though the complaint is a shepherd document in thornton the court says the complaints not enough because we don't know that you pled the same thing ok how do we know that here in this case so in this case the complaint shows first of all the complaint has a top section if if there's some cases that basically distinguish between the complaint part i mean if you plead to the complaint here or was there no trial information  information how do we know that all she pled to the complaint because the complaint talks about the robbery being based on assault with a with a tear gas to further in a scape the trial information is consistent with with less detail so it talks about an assault a sister further of theft or escape but doesn't say anything about tear gas in the judgment just as pledge or robbery under seven eleven point three eventual offender all consistent with the pyre documents but again not saying anything about tear gas so there's no indication any of the subsequent documents that there was an amendment or anything that was changed from the complaint but obviously we don't have any record here of the trial information or the job specifically saying what the complaint d and we also don't have a specific record of the defendant saying i am pleading guilty based on the details in the complaint so it's not it's not as strong as as those cases obviously there would have to be an inference based on all three of the other documents and no record that anything was actually imagine and you think seven only point one sub one is divisible between intending to cause pain or injury and intending to result in physical contact there's two fountain cases a two thousand and eight i will court of appeals case and then a two thousand and ten case which addresses a slightly different issue the two thousand and eight case is the one that we're citing here that as a footnote footnote twelve which says those two are separate crimes and it cross references jury instruction eight hundred point one there's other cases we cite in our brief like i believe keaton and that treat the two subparts of one subsection one as a separate however you know they don't you know they don't go into a lot of detail on that fountain is the one case and so if we were going to compare this with the naile case where this court looked and said the parentheses in the jury instruction are not enough is there anything in addition to that here we do have this this this fountain case which is not published opinion we would  o ask the court to look at the miers case which this court just decided recently more of the court looked out the text of the statute found it was unhelpful because or the word or alone doesn't think the district court decided that she was sentenced based on the residual costs no you think the judge just assumed that and i sake of analysis or way no i think i think what the judge said was the defendant has the burden to prove that he was sentenced under the residual clause and then what did he current he had also said for why this does not is not a residual cla case using current law and there wasn't any specific record or the court said when i sentenced her i was not relying on the residual clause but there is nothing in the record to show that the court was relying on the residual  clause and the court actually in this order asked that all the record given the probation office would be put in the record for this court so in our view if it is if it is sent back we're going to say the defendant has met as has met its burden to show and the judge is going to you know she would have to go back and look at the same record and say you know there's no you know our argument i believe is the correct one that there's no evidence this was a residual clause at all the judge did not rely on the residual clause there is nothing about it one way or the other the burden of proof is on the appellant in this case or at the lower court a defendant to show that the residual cla was used well how do you do that when there is nothing in the record to indicate one of the other way you do that is to show that you couldn't have been the other two which are the other two ways of making your predicate offense one of those easy to get rid of it seen numerated offens robbery is not one of the enumerated offenses so then we are left with us whether or not this constitutes a violent crime we're right back to my argument that i took out a vice with regard to the end result whether or not that justifies the actions as being a violent crime and under assault there are numerous ways to commit of salt that are not violent and if they aren't violent and the ultimate result isn't violent the crime is not a violent crime when you say violent crime are you referring to the force yes yes