ing under the our current criminal act at issue are whether or not mr levering prior convictions from the state of iowa count as one prior conviction or more than one prior  convictions historically this case started in two thousand and four mr levering was convicted after trial the information of prior convictions filed by the government listed five prior felony predicates to include a first degree assault used from the state of nebraska the prior conviction from the state of iowa specifically the dare county conviction from the state of iowa which is an assault during the course of a flight to avoid a t the third conviction was an escape conviction from the state of nebraska and then there were two other convictions that are nonviolent offenses they were believe a forgery maybe a theft after conviction  levering appealed his does it nation as an arm career criminal to this court assigning with particularity b s the escape conviction saying that it was in a prior violent felony this court upheld that conviction this court passed without much commentary about the iowa incident it was viewed as one incident in the pre sentence report that was presented to the court of sentencing and then it was viewed by the eighth circuit on appeal as one incident after johnson was decided i was because at the time that the case proceeded the first time no one viewed this as separate violent events that it was viewed post for criminal history in the p s r said three county convictions that got no criminal history points and my reaction was is that relevant to the a c c issue and i don't think so but if it is it's just another one of the factors that demonstrate that at every level that it was viewed as one criminal occurrence that was one series of events and the court correctly points out it's not completely relevant i mention it because it's more than one person view that as this is one of vent it's only once the court and realize that without breaking th offenses that mr levering would not be an arm criminal all right the other way look at is that it was only when it became relevant to anybody focused on whether it was more than one that's fair however one issue addressed why this should be counted as more than one well the facts as outlined in what we can glean from the record in the dare county conviction and the dallas county connection is basically your typical high speed flight he mr lovering is in a stolen vehicle he is apprehended or tries to be criminal event that there is no separate men's red there's no separate deliberation there's no separate intent once he crosses each county line that his intent is the same throughout the entire course of the current criminal period to avoid arrest to try and get away with the crimes that he had committed and to not have to face the consequences for each of these crimes the cases that delineate separate events even in short periods of time talk about different victims a period of repose where the individual can collect their thoughts and decide to commit a new crime travel that would be necessary to commit one burglary across the lake commit another burglary they were different i mean you c say they were all cops in there but there are different human beings in different counties with different jurisdictions who are assaulted in different ways i greater than all by the by the same vehicle driven by the same person i agree and that's why i cited in my brief to the will be case which went into historically the reason for this the law as amended talked about the case of petty that came from the eighth circuit and when it went up to the supreme court the solicitor general conceded that case involved factually a robbery of a restaurant i believe where many people were held up and robbed at gunpoint during the course of that robbery and on appeal to the supreme court the solicitor general said you know that is not what we think are criminal means these are not events and although they are separate individual people that have a crime placed upon them they're not separate for purposes of what arm criminal talks about and so after that case was remanded the congress amended the statute to include that language about separate criminal incidents mean the occasions different from one another language which in our position is is important because this is much more like doing a robbery at a whole place of business then committing a crime inside a bar walking two blocks twenty five minutes later using a different weapon to perpetuate a different crime and a different victim those are distinguishable and mr levering had involved in a multiple county high speed chase he gets apprehended by police and then subsequently during his arrest or booking process assaults a police officer that's obviously separate that's a separate type of crime a sep type of incident argument here is that this is all what if the county lines were just huge counties and heating crossed any county lines does that make it less of a multiple event or does the fact that he crossed the county line single one of those victims and they didn't the judges in state court could have run the sentences consecutively they did not in fact all three convictions to only two are at issue because the government conceded one of them the record was insufficient so in dallas in adair count the judge's reem the sentences concurrently and i think that's evidence in of itself that the judges in those jurisdictions thought it was one continuous act and one continuance occurrence otherwise doesn't the court have a responsibility in that situation to account for the separate crimes and separate wrongs to its citizens within its county that was not what happened in this case so i do have a question about whether this really makes any difference because i noticed that the district judge levering to two hundred forty months on count one that's the count we're talking about here as i understand it and then one hundred  twenty months into but random concurrent so the total time served would be two forty right but then she goes on to say if you had not been an armed career criminal at the time of original sentencing and if i had an upper limit on how i could sentence you on count one i would have made count one and count two consecutive and as i understand your position there should have been an upper limit of one twenty on count one because it be a ten year maximum without the one criminals one twenty four one the statutory potential penalty if mr levering is not a criminal is the same except for the fact that the period of supervised release post incarceration goes from five years under criminal to three years in felony possession of a gun which he signed him for supervised release five years so you're saying we have to decide the issue because of a two year well i think that there are other issues but yes if the court finds that the alternative sentence pronounced would be the sentence that she would give again i still think it needs to be remanded because as you correctly pointed out she mentioned that that's what she would have given him at the time of trial had been armed criminal and i don't think that's really the issue before the court at the time of the recent and saying but then additionally he does need to be reset with regard to the different supervised release term we could order that that is one option available to the court yes judges i saved a few minutes of time so i'll just have a seat and then if the court has more questions i'll be back in a few minutes not a tight alternative sentence i give you that but i think under the sentencing packaging doctrine you know i think what she's telling you is this is what i'm going to do this is what i would do this is what i was going to do before and there's nothing in here that is going to h i'm not going to do that so let me turn back to where we're i'm going to where i intended to start out because the primary issue on this appeal is whether the district court erred in concluding that leverages convictions in dallas in adair county the once for assault while participating in a felony and that both occurred over a four county chase constituted separate predicate offenses under the encore criminal act i think the case law the numerous case law that has been decided in this court from two thousand and three starting with the rule and up until two thousand and sixteen there's about five or six different cases that the in the court applied one of those humphrey it's very very clear that this court's preceden s show that this falls within the arm current criminal act specifically the language that the court had to interpret to determine whether or not they were separate incident incidents as opposed to one continuing  episode the court found that the convictions occurred in two different places obviously two different counties two different sources of venue they actually and there's a third one out there as well that we are we're not relying upon by definition  of science they had to occurred at two different times they involve different victims in those different places they were separate aggressions so there is a mens rea argument but that mens rea argument is every time that he decides that he's going to turn that car at a police officer or turn that car on and on and another individual in order to wreak havoc he's causing an assault that's the assault that he's dealing with he could have backed off at any given time he could have withdrawn  event he could have stopped at any given time and not put anybody else at harm or at risk or committed any more assaults the us with his dallas and their convictions along with an uncontested violent felony for assault with use of a firearm in the brassica he remained an armed career criminal and it is noble review by this court should confirm that now the president of this court that is interprets that language committed on occasions different from  another example it's clear as i indicated earlier it started with the rule in approximate two thousand and three it continued through abbott in two thousand and sixteen pledge in two thousand and sixteen but the one that the court used was united states versus humphrey and she used it because it laid out three factors for determining whether it's a continuous episode or whether it's committed on occasions different from one and another and that test was set forth as to are there different times is there a time lapse between the events is there a physical distance between these events and is there a lack of substantive continuity which has been defined by judge murphy and humphrey and in other cases as different victims different aggressions or the ability to withdraw from the conduct so she applied the precedent of the circuit in applying that she came to the conclusion that these were separate and distinct think they do apply you almost have to suspend the rules of science for them not to apply their appeal currying in different places they're occurring at different times and the judge and the district court as much as said you can't have this happen unless they're at different places and different times it's physically impossible to have this happen it's a chase it's a continuous chase but that continuous chase goes over the course of four different counties and over fifty different miles involves different police is whether or not there are different aggressions and each aggression is done in a different place against a different officer and whether or not he had the ability to withdraw from his course of conduct and not put subsequent people at risk and that's part of the lack of substantive continuity test and she applied that test this court's going to review this to nobody to determine whether he's an armed career criminal but you're going to review her factual findings for clear air and i don't see how she erred in determining that these were incidents in which they were separate predicates i suppose you're if they're arrest and charge differently  categorically counted the third yes this man would have had three convictions based on that one day he could have and then he would be a quote career criminal ts like this i think it's consistent with how this circuit has looked at these cases and made that determination and if you look at some of the some of the cases they frequently involve the one that the court because in this case he has an extensive criminal history that starts well before this and continued after his adair county convictions one that cost him a curve fender you know up until johnson comes along he's a career offender without any resort as to whether or not we have to parse whether or not there's a separate episode in polk county in madison or in madison county or adair county or any of the counties in which he led on th chase johnson changed only as it relates to him his escape conduct which at the time still would appear to be violent but you have to use the categorical prochoice not the modified approach and therefore his kicking out the windshield while he was in custody and then escaping is now not considered to be a violent crime so he would be the wrong vehicle in which to reach that conclusion it may be something for you to determine somewhere down the road when presented or if presented with a case where somebody is a career offender based on four burglaries within a two hour span atter within the same county as has already been presented i believe by pledge in this particular case that's all i had to say with regard to the arm per criminal i would ask the court to affirm the finding that he's an armed her criminal i would ask the court to affirm the subset of reasonableness of the sentence because the district court did not abuse her discretion as it's clear by its criminal history which i won't relate now at this point i think it's very clear so unless there are any questions i would just ask the court to affirm thank you i just had a brief comment i just wanted to hammer home the substantive continuity of the crime at issue here you know there's a lot of talk about these different victims and different aggressions and i just i disagree that they're different aggressions they are different victims by virtue of who is chasing him from different law enforcement agencies or what citizens are on the road but i completely disagree that his mens rea or his intent is different with each individual person he comes across i think that when you talk about different multiple burglaries right could make the same argument there well the guy had decided that day he was going to commit multiple burglaries so it's quote the same mens rea i think that that's what the testimony was and pledges that he did intend to commit multiple burglaries what was interesting factually in that case is it involved several different burglaries all in rural tennessee it took to travel to go in between each house there was a period of repose where he could have decided to that i don't think that there is any period where the chase stopped or that the criminal conduct came to a logical conclusion that one would expect a person to have some reflection about whether or not they intended to continue into rue the court found that although the burglaries happen in close time period that they happened over the course of six separate lakes the travel and the stopping of the continuance continuous criminal activity is substantial in that  case the lake i guess i don't know that but i would assume that they're not that far away but in between each burglary they packed up they made a decision to go to the next president to go there to commit a new crime to figure out how to break into the house what tools  necessary for that i would argue that each time when you complete the act of the burglary of that house that's that's the end of that criminal enterprise and that there is a break and there's no continuity between the next crime that a curse witness a couple of blocks away is aiding one of the victims and he shoots that individual those are obviously separate incidents where a person completed one criminal act apparently a prior to weapon transporting themselves a couple of blocks and made contact with a completely different person would it be different if he had been inside the tavern and had used that knife on multiple different people is that because it happened so quickly and there's no no moment of the stop of the criminal activity with the court find that that's one or multiple convictions for purposes of an arm per criminal unhandsome it and look at the whole purpose of arm for criminal is the statute wants to court to have the right to give an individual more time when a person commits an serial separate offenses that make them a violent felon that make them a person that deserves more jail time whether or not the court finds that this is a continuous event in just one county does that make him more of an arm or a criminal if all of this happened in one county or could happen in two or three counties it's exactly the same level of arrest be exact same level of assessment and quite honestly the circumstances of the offenses whether or not they qualify for arm criminal if he's not an armed criminal the court has every right on