morning runners may please the court in the next ten minutes we are going to discuss a matter that is not important simply to my client marvin bennett but which affects no less than fifteen years of the lifes of every individual for whom the felony resisting arrest in indiana has been counted as one of the three predicate convictions for the purpose of calling them a violent felon under the arm career criminal act it then amounts to literally hundreds if not thousands of years that is before the court at this point what we're talking about today of course i think is one thing that the government night agree on is whether indiana code thirty five forty four three three b one b is either visible or invisible under the recent rulings of paul mathis and the shop's from the supreme court and essentially what that inquiry comes down to is whether the list of alternatives in this case there are three are elements of crimes and that is i think different crimes which is one of the places where i really think the government and i depart or whether they are a lot of means for for committing the crime before we dive into that metaphysical issue could you explain to us the significance of mr bennett's eleven c one c pulley and why we should be considering this at all on the m but my recollection is that it was sent back by the seventh circuit i could be wrong about that again your i did not i sort of picked this up with kind of the back end of the proceedings obviously but my oh my understanding is that indeed he was one of the probably thousands of individuals across the country that had their had their sentences remanded to the district court like johnson gym but then that may be but ordinarily eleven c one c pleading please are offered accepted and that's it right that's correct and then who we don't we have no idea what might have been behind that bargain and what the government might have given up to make this just one count for example and i think it's something to be considered but again i think that ultimately what time that the law existed there was certainly an understanding that perhaps this crime and i think it probably would in fact fall under the residual clause whereas now it's not does mr bennett want to void his guilty plea and the plea agreement no your honor we're simply asking for no i think we're simply asking for a reset and saying i'll be curious about the government's position on this because he seems to want to i mean it's an eleven it's a binding plea agreement to the sentence he got i understand but again i think and i'll just take this back to the sort of general contractor terms i think this is a situation where there was a material part of the deal that the two parties didn't understand or that t significantly changed in time and yet he wants to insist that the favorable part to him would be left in effect right yes i suppose that is now yes your honor so why should we do that a question i think ultimately again well either way i think that the the outcome is essentially the same and we're certainly happy to entertain a situation where where the pally is is removed and the parties would go back and essentially renegotiate again having dealt with united states attorney in fort wayne on this i doubt very much that the situation would change significantly we would still be in a situation where the count to which he pled guilty would be the count which he pled guilty t the argument with then simply be what is the proper sentence if the a cia is taken away ok we heard time is short and we've got your views on this disability question brief i'd like to ask you something it's a little bit different under the resisting law enforcement statute the focus here is on b one b that makes it a felony  and there's focus on whether inflicting bodily injury on or otherwise causing bodily injury to another person qualifies as is divisible and qualifies as violent is there a mens rea a requirement to the bodily have to intend on doing some sort of damage it was some sort of bodily injury where do you find that element in the statute i don't believe that it isn't statute i think it's it's not then it's not a violent crime right it's not a violent felony that's true and i  think that that ultimately that would make at least one out of the two or in the back two out of three alternatives and b one b then not violent felonies i mean i think for the purposes of mathis as long as one of them is while one of them i nonviolent the situation then becomes you know well i don't see how any of them are violent under half that's drawing a deadly weapon may or may not be a threat right  and you understand that under indiana law a person can be convicted of a class d felony resistance if the officer injures himself yeah  correct how could that possibly be a violent felony i think that in the context there are cases in the context of a bank robbery under the federal law or i believe that the drawing a weapon i think has been found to constitute a  i think the difficulty though is that the sort of a step beyond where we're going of it i think because under matheson shops you can't even look to i don't think i think that's true whether it's adverse or in support of michael and you can't look to the so called separate documents until you get to the point where you answer is this divisible or is it invisible so i don't know that it necessarily matters for the purposes of the of the test that at least the supreme court has announced that we would certainly i think prefer under a number of circumstances that indeed what you said is correct that we did in fact look to the actual crime that was committed and decide whether or not that was in line with well really suggesting is that it doesn't matter whether this is divisible or individual i understand for mr bennett which if your honor i'm certainly not going to argue that i would hope not i think might like just came on out so i think you know ultimately what we have under the  as the interpretive decisions to the extent that they exist support a finding that this statute is invisible i first point out that all of the three subsections of the one b carry the exact same penalty these are all  felonies for which the the the sentence range is the same now the government is identified some case law which speaks to mandatory minimums and suspend ability in the context of this particular these particular offenses namely the bodily injury on the driving portions over none of these actually change the sentence of the mandatory minimum and the suspend ability at least under indiana last speak not to how long but  how indeed a thirty day mandatory minimum if you do that is a minimum sentence makes no sense in the context of a de felony with a minimum sentences six months but that's instead saying is that you serve that time that thirty days executed rather than suspended or rather than on on some sort of alternative sensing therefore that none of the argument none of the government's arguments with respect to this points are valid or relevant as they apply to indiana criminal law a moreover i think this is important because the government in fact identified this case and that would be turner versus state where the indiana court of appeals actually said that the items that make the various facts that make an i'll finish my point and be done th various facts that make a sense to spend can be determined by a judge they don't need to be determined by a jury thus when the government says that because this is a violent because if were to bodily injury might render this nonsense spend have waived any reliance on the waiver i want to ask you about this though your footnote seems to hedge your bets your honor we are explicitly waiving it in this appeal for this case correct for all you ourselves there might be issues down the road that we just can't foresee not as relates to johnson not as relates to the a c c just could be some other issue down the road that we just can't foresee into it you're not trying to do those whose heads we we district court and here has explicitly waived that argument and his look you're both waiving things and trying to suck the sob so that we have to decide according to particular issues so tell me why this is a violent know if the police officer if the person can be convicted because the police officer hurts himself sure your honor i did not research that issue because mr bennett has not raised it he's explicit if you look at page fifteen of his opening brief the first two acts listed in the sub part clearly satisfy the forest clause and then it does not other argue otherwise that is just not an issue that is raised in front of this court and i understand the court might have concerns as to whether it's a violent felony and there might be some case down the road where that issue arises where this court has to address because it seems like you guys want to pick and choose which issues we have to discard and given that kind of picking and choosing my interest is in actually getting the case right i understand your point your honor we're not picking and choosing which issues the court briefly just address a related issue i am arguing a case in the middle of may it's not resisting law enforcement but as i understand the court's questions it relates to whether there's an intent to injure elements and a mens r battery resulting in serious bodily injury that statute does not have an intent to injure element we think we have strong arguments as to why that is a violent felony again i don't think mr bennett has raised that issue but if this court does have well what what what's the relevance as to whether it's divisible the relevance of that your honor is whether the court can look at which the sick part of this statute he violated as opposed to considering section b one b as a whole we can see that one part of b one b is not a violent felony under the elements clause and that's when you essentially recklessly drive as you're escaping a police officer mr bennett concedes the first two parts are violent felonies and so the question is can the court look at the charging documents from the state case and see what act he was actually convicted of or the court balance by all three components of the sentence together of the statute together  each component does have a different sentencing ramification that's where we think this analysis can start in that this court if you resist law enforcement by drawing a deadly weapon you're subject to at the time he violated the statu your sentence can be suspended if you resist law enforcement by recklessly driving you're subject to a thirty day mandatory minimum supreme court said in mathis if you're subject to different penalties that means there are elements and it's divisible to the extent this court has any concerns so every single indiana case we've seen separates them out into different elements and mr bennett hasn't pointed to any to the contrary relies on one case arthur of the state or state b r v arthur which of double jeopardy we think that resolves the issue to the extent that there is further concern what this court can do is what the supreme court call this take a peek at the charging document here there's no dispute that he was charged with causing bodily injury which he c these three items are means rather than elements she would not be eligible for the arm to clear criminal act and so instead of the fifteen year mandatory minimum p p subject to a ten year statutory maximum and why would the because under nine twenty four easier if you have three qualifying violent felonies that normally possessed felon in possession of a gun carries a ten year statutory maximum but if you have three qualifying violent felonies it increases the sentencing range to fifteen years as a minimum so as to have first put but bodily injury to a police injury to a police officer that wouldn't be limited to ten years that would be the state qualifying felony and the question is whether that qualifies under the arm career criminal act thereby triggering the enhanced sentence under nine twenty four e g well if it didn't trigger what would be the maximum sentence ten years could you address the defense's point that the different sentencing consequences here are matters will have to the judge to decide well your honour's whether or not they first of all the fact that it calls the thirty day mandatory minimum mandatory minimum that is under elaine something that is a element that proven beyond a reasonable doubt even if you whether or not the indiana courts have come to the conclusion you know that's correct your honor that's controlling supreme court precedents as i understand it but more importantly what it does is it shows how indiana treats these different components of b one b even if you don't consider the something that has to be proven to the jury what they are they it's the indiana legislatures and indiana court's way of signaling that these are three distinct elements unless this court has any more questions on the six dreamily i think metaphysical as you're on a call that issue we would ask that you from the district briefly i want to again i think this is major issue of when the indiana court of appeals the asprin court calls these things elements are when they're charged does that make them elements for the purposes of math or chops and the answer is no and here is why shops don't tell us that simply calling something an element has some sort of magical properties that it now becomes a defensible statute what it says is are they elements of different crimes one of which is more serious than the other and that's what's missing from the government's analysis in this case none of the indiana cases that they cite stand for the proposition that one can commit one part of b one b and then commit another part of b one b and those are two different crimes all they stand for is the fact that particular prosecutors have chosen to add language that they did not need to add to charging information and if to the extent judge of that crime you would have to prove that one of those was violated that does not make the the statute visible as this court's found i see my time is up around that very much thank you very much counsel next case