the fifth circuit we have a whole docket this week more or less but the first case of the morning it's number sixteen for one two one eight united states versus  would ask you to follow our traffic light through the yellow light gives you two minutes red light tells you to stop and also to give us record citations when possible because we have normally not examined the entire record before argument so we'll hear first from a shepherd please the court t v shepard for mr risk interests the issue in this case is whether missouri voluntary manslaughter categorically qualifies as a crime of violence under the two thousand and fifteen edition of the illegal reentry guideline the answer that question is no for three reasons first the voluntary manslaughter statute in missouri is broader than generic murder in generic manslaughter second the government hasn't shown with the requisite certainty that the statute  divisible and third the missouri statute doesn't necessarily have force as an element of the missouri statute has to subsections the first privets knowingly causing another's death under the influence of sudden passion and the second prohibits knowingly assisting the commission of a self murder this statute is overbroad for two main reasons first murder aiding and abetting murder and manslaughter all require some form of homicide but the missouri statute only requires a suicide this court in both me and why is it only a suicide well i mean who says a voluntary manslaughter cannot include suicide  boni a defined voluntary manslaughter as requiring homicidal intent and involuntary manslaughter as requiring requiring recklessness toward the risk of homicide so if you knowingly cause the death of another person  sorry knowingly assist another in the commission of self murder why and why is that not you know knowingly committing murder well this court hasn't defined murder a generic definition of murder yet but even using the third circuit's definition in rare oh it requires the causing murder requires causing death of another person in the missouri statute doesn't require causing the death of another person it requires knowingly assisting another person to cause their own death so it's simply the difference between a homicide versus a slow but eight in a bet would normally be considered part of a generic offense would it not well under the guidelines the first step is to consider whether the substantive oftens is a match to the generic oftens and then the court considers whether aiding and abetting that often is categorically aiding and abetting the generic oftens and in this case it isn't a matter of aiding and abetting murder speaking for myself the second reason it's overbroad is because the model penal code and the majority of states that's twenty eight states codified assisted suicide as a separate and distinct crime and only nine states have it as a form of manslaughter and the reason that it's a separate crime assisting suicide is a separate crime is because suicide isn't a legal and of course had the sentencing commission wanted to include assisted suicide as one of the crimes that meets the crime of violence definition it could have listed assisted suicide but did not turning to the divisibility argument the government has the burden to prove with certainty that the subsections are elements and it hasn't met that burden in this case under the three steps of mathis first of all there aren't any missouri cases that speak definitively on the means vs elements question but there is the poverty a case which said that the certified court documents in that case didn't indicate which  subsection of conviction whether it was the sudden passion form of manslaughter or whether it was the assisted suicide form of manslaughter and also under the second step of mathis there are indications that the statute in the statute itself that suggest the statute contains means one of those indications is that both of the subsections carry the same penalty aren't you arguing inconsistently with your prior argument because who both of the subsections constitute means then both of them must be classified under voluntary manslaughter no i think that my arguments are not inconsistent in the first argument i'm was just looking at the subsection that deals with assisted suicide law understand that but you saying it shows another means to commit voluntary manslaughter right and it's an overbroad means of committing voluntary manslaughter and on the record in this case i don't think just looking at the judgment you can't determine but certainty don't  two sub if this is not divisible it's hard for me to say what statute is divisible but i think there are plenty of isn't cases where the court has found the statutes to be divisible when there's a case for example from the state courts that that say what the government has to prove to a jury beyond a reasonable doubt well but i mean you've just been arguing you have to prove the assisting another person to commit itself murder is a completely different of ense from voluntary manslaughter well my argument is that it's overbroad that you know you're saying it's a completely different offense i've i'm not saying that i'm trying to argue that the statute is overbroad when you consider the least culpable means of committing a statute which is assisting suicide and as far as on the face of the statute suggesting means as i said both of those subsections carry the same penalties they're both punishable as class b felony is and other times when classifies different degrees they assign different penalties to the different degrees of committing oftens the statute also doesn't provide a list of illustrated examples and the statute doesn't self identify as requiring certain things to be charged and finally turning to the third step of mathis the peek at the conviction documents i'd first like to emphasize that that peak is limited to determining the elements and it's still not about considering the underlying conduct and the supreme court and mathis said that the documents must speak plainly on the question of means or elements and this court has said that the judgment or the conviction documents must on ambiguously identified the subsection of conviction and in this case the court should only look at the judgment and not the indictment because the indictment in this case charge second degree murder but the judgment is for the crime of voluntary manslaughter and the government points to the m but this court in the neo said that martino's big is limited to its facts which is when the judgment itself says that the defendant pleaded guilty to the lesser included charge contained in the indictment and that's not the situation in this case where we have an indictment that doesn't refer to any sort of information and simply says that the charge is voluntary manslaughter first degree which under missouri law there is no differentiation between second degree counts count one in violation of section five sixty five point zero twenty one point one what is point twenty one point one that's the first  subsection of the voluntary manslaughter statute no because well maybe our bench memo was typed wrong but it identifies the first subsection i'm talking about the indictment is i'm sorry did you say point zero to five manslaughter as a lesser included offense of second degree murder of first degree murder but i can i have it in my notes counsel table and can talk are there any other shepherd documents that the voluntary manslaughter and the indictment is for second degree murder the court can't look at the indictment under this court's case law in bunia canary hernandez and turner you're assuming you're assuming that the plea is to a lesser offense  not assuming that i think the government assumes that in their brief that it's to a lesser included oftens but look at if it were if there were a lesser included offense than you could you would look at both of them right yes ok i would agree with that why is it not a lesser included offense when the statute says it's a lesser included offense i think the stat the way that missouri has set up it statute can be there's the possibility that's a lesser included oftens but it doesn't necessarily have to be a lesser included often and we use our brains when we say something appears to be a lesser included offense but i think when you look at the missouri statute it establishes both subsections of voluntary manslaughter as a single crime of manslaughter and there isn't anything like in marching is  often it doesn't have to be charged as a lesser charge it off and i understand that but the whole issue here isn't is it not is whether he was charged with second degree murder he pleads to voluntary manslaughter first degree and is that in effect correlating with the fact that he bashed his brother in law over the head multiple times with a baseball bat right in other words of section one  to close our eyes to the indictment which says that the knowing that he knowingly or with the purpose of causing serious physical injury caused the death of posts a month ago by striking him with a baseball bat we can't look at bat but he pleads to voluntary manslaughter first degree which can be under the circumstances of the indictment nothing other than subsection one i think yes the court does have to close it you can you tell me any what's your what's your case its closest on point to that is the case and mary hernandez and also turner in boney and mary hernandez the indictment had charged second degree assault for second degree manslaughter and he clearly was to attempted assault or manslaughter and then the turner case also had a similar situation where the charge was burglary of a habitation and the plea was to burglary of a building and in those three cases the court did not consider the indictment and i would urge the court to follow those cases in this case as well you know rule twenty three generator follow late last week the government places some reliance on  from the supreme court can you address that i mean you might want to do it in rebuttal to that if the government brings it up but yes my response to that would be that in rico me here this court already decided that castleman did not overrule its precedent in vegas hernandez which is that cause ation of bodily injury and using force or different acts and the court in rico me he said what the kassam in court said which is that the castleman court was dealing with the limited special context of domestic violence and the common law definition of force which includes mere often civil touching but under the crime of violence definition in the guidelines it's not domestic violence it's violence and the force is a physical and destructive and didn't touch on the distinction between cause ation a bodily injury and using force so is this is it your view that the fish court is in conflict with the other circuits of the government referred to in terms of interpretive yes it would appear that the other circuits have not taken castleman at its word the way that the circuit did castleman repeatedly emphasize that it's holding was limited to the domestic those other circuits have overlooked that that part of the castle in holding and how critical the fact that the court was limited to domestic violence and also using a common law definition of force that includes any mere oftens of touching and as far as the second count of the conviction the armed criminal action i would point the court to the jones case and has two thousand and sixteen missouri on bond case that held that there is sufficient proof of that crime in missouri when the firearm boosts the defendant's confidence and so that means that the that crime also doesn't necessarily have force as an element and there are a number of cases the government cited dealing with menacing crimes but all of those cases the statute requires using or displaying of the weapon but armed criminal action in missouri requires committing any felony through the aid of a deadly weapon and that's how the court was able to reach that conclusion and jo with regards to whether the missouri voluntary manslaughter statute is divisible the government's position is that it is divisible for this reason it is distinguishable the with turner and bania and some of the other cases cited one for specific reasons it's more comparable to the case hernandez or haas and the reason being is that under the missouri statute format everything is specified  example to plead guilty to an indictment to a lesser degree often said has to be by statute and by statute the conventional second degree murder states that the lesser degree of second degree murder is wrong terry manslaughter in this particular case the indictment alleged second degree murder in response to your question judge that the statute in the indictment that you are referring to is incorporating the second degree murder so other words wrong terry manslaughter you have a let you have to prove second degree murder what makes it voluntary manslaughter is a mitigating factor that the defense has and interject not the not the government it does not change the elements of the government has to prove all it does is it it  allows a defense to come forward with a mitigating factor if it is charged that way with the state court cases say that that is in situations where the state concedes or stipulates that the defense factor is there and they don't they don't oppose or they don't contest a legit that way but for the most part that's a rare and normal case it's alleges a second reporting of the case law and even the jury instructions the pattern jury instructions themselves say in the rare case that is charged as a voluntary manslaughter where the state does not contest the mitigating factor then it can be charged that way but for the most part they'd misery under missouri law if it happened it occurs the way it occurred here it is alleges a second degree murder and then second count we had the armed criminal act and which was also incorporating the second degree murder to which he also claimed guilty to so he pled guilty to count two which incorporated second degree murder but with regards to the judgment with the when it refers to voluntary manslaughter it is referring to the fact that there was a mitigating factor to the degree and other words you still have second degree murder but the second degree murder the degree of the ostensive the degree of the punishment is lowered because of the mitigating factor of sudden passion caused by adequate cause those that statute identify second is there is second is there an independent definition of second degree murder yes your honor there is and that's in a different section of the code or what it is your honor to one like you were referring to in the indictment where it incorporates the second degree murder it's i think it's five six five zero to one that is a second degree murder often senate it is defined as knowingly causing the death of another individual ok and that was incorporated in the indictment only difference between that and oh twenty three is  jury instructions case law all handle the two separately in fact the government cannot find any recent case law under this statute that is actually applied subsection to aiding a suicide in any case law all the government found was the subsection one where it apply the voluntary manslaughter under the traditional generic definition where a murder is a committed but there's the sudden passion a caused by act because so the jury in the pattern jury instructions that are referenced in the government's brief and i believe in the twenty eight jail letter always they state specifically in the pattern jury instructions that this instruction only applies to subdivision one it does not apply to subdivision two the government cannot find a an instruction that defense is saying that aiding and abetting suicide is a separate crime and it can't be treated under the generic murder or voluntary manslaughter but the same time they're arguing that it's that it isn't separate so he is you can't have it both ways but it with regards to the state they do handle it separately in fact with with the second degree murder when they're going into the degrees and they say that the lesser degree of second degree is voluntary manslaughter it only states subdivision want to the exclusion of subdivision to so this business about voluntary manslaughter first degree you are contending is a term of art your honor i believe that the first degree it is it is stated in the judgment voluntary manslaughter under the statute doesn't refer to it as first degree and so i don't know if that was just a typo i don't know why they refer to it under the involuntary manslaughter they do have degrees but for voluntary manslaughter they do not i don't think that that impacts what occurred here with regard now the state who i mean there was a district court below did cite to the provision that i'm referring to five six five zero two five which talks about the lesser degree so the court would have had to have looked at the second degree murder which she was indicted for and then would have seen that under five six five zero to find that the only provision of voluntary manslaughter that could be applied here would have been subdivision wind because subdivision t is not a lesser degree of second degree murder could not be so it could not even be considered so that's why hernandez for hats for haas is is similar to this case in that they said under the texas statute was a whole different provision th said there was no other it was it went to the degree of the penalty there was no different elements involved and here there's no different elements of the state had to prove either and secondly under the statutory provisions and the documents there no confusion as to what he could have been convicted of it's clear that he was convicted of of the elements of seven second degree murder with the mitigating factors of sudden passion caused by adequate and so in looking at hernandez for hasse they made similar analysis and they said you can't look at the indictment even if the indictment states a first degree burglary and judgments refers to a second degree the only difference between the two are not the elements but really the degree of the penalty and that the way that the statutes provide you know the elements that it was clear from the statutes themselves and i would submit that in this case it's clear from the statutes themselves as to what he was charged with and what he was convicted of and if you look at the subdivision one it it fits the generic definition of voluntary manslaughter is the typical classic example of ontario manslaughter intentionally or knowingly causing the death of another person under but having a mitigating factor of acting under sudden passion caused by a quick was but even if we looked at the whole statute and didn't apply the modify categorical approach the government's position as is that it categorically would apply in that assisted suicide is a form of homicide it go of going all the way back to common law has always been viewed as aiding and abetting murder whether all the other different states apply it like that if it  is criminalized by a majority of the states and as a form of homicide whether it's classified as manslaughter whether it's classified under another provision and also in leading up to what judge smith mentioned earlier about count that the castle in the alternative argument where there are not only is it an enumerated crime of violence but whether it's a crime of violence that has the use of force as an element the government would submit that it does and with regards to castleman and  domestic violence cases however it could be construed narrowly in that it appears to focus on the degree of injury which castle and focused on with regards domestic to domestic violence cases in other words  castleman the supreme court held that it recognized that under johnson and violent felonies crimes of violence that the degree of injury had to go beyond offensive touching or something that didn't  result and bodily injury and pain leading back to johnson which justice scalia stated and concurring opinion and castleman stated it is consistent with these cases where is long as bodily injury pain occurs so castlemaine with regards to the degree of injury did can limit it to misdemeanor domestic violence cases but with regards to what and what is use force and the language that they discuss with regards to even johnson that there's a whole separate argument and that is not limited to the domestic violence cases under our rule of orderliness we would have to make a good faith distinction with with here right yes or a that's kind of hard to do changed unless we looked at also the earlier case i mean it's sort of appears result oriented it seems to me if we want to just discard rico here cases and really it is also consistent with johnson when johnson just described what is physical force in spine and through concrete bodies as opposed to emotional or intellectual force and all castleman did was constr johnson and said yes indirect force which could be caused by in the use as an example a firearm and they said even a firearm is indirect force because by just pulling the trigger you're not actually punching or shoving or hitting someone you're pulling a trigger  gun so the trigger isn't hitting the person it's the bullet that you haven't you hit your in directly causing to hit to hit the individual so they use other examples which really was applying johnson so we go back to johnson and we say this is this is still consistent and castleman said there is no way to cause physical bodily injury without using force scalia is concurring opinion also agreed with that and then it's continued on and in fact all of the circuits other than the circuit and we come in here have concluded that castle and the language and castle and construing johnson is is correct and that no longer can they rely on their prior precedent it at least two wks circuits have that had been and been decided at that time but there have been several that have been as decided sense are brief i believe was filed in march ninth or march eleventh some early march the cases in the twenty eight day later were all decided after the briefing so circuits there have been some that have been decided within last couple you know within the last month or two as well since august august through october but there has been a lot of activity and so far all of the circuits are in the circuit have concluded th castleman is not limited to domestic violence cases that hat it also applies to crimes violent felonies crimes of violence under four b one point one or under two are one point two so would this  force causing the death of another individual and in addition to this you also have even though it wasn't argued below by the government but the court can affirm on any ground is the armed criminal action which is rooms the second degree murder plus the use of a deadly weapon or deadly instrument so you have that as well you do have the problem the misery is construed a little differently saying that assists and second degree so they would have to pre print up to second degree as the felony under state law it says you have to prove the underlying felony is an element thing so to prove second degree murder it could not have been directed towards property it was directed towards an individual because second degree murder is knowingly causing the death of another person and then using or either through the aid or assistance of a deadly as well that's what i'm saying i understood that missouri had a definitive case which he referred to that said that  sist and aid could mean brandishing but you're saying that under these circumstances you'd have to prove that the felony involved more than aid and bring aid and assistance is what you're saying i think what i was trying to say your honor is that in the case i think was john's i believe the case that she's referring to it was in the context of a burglary and so in this case so you'd have to look at the whole elements not just taken out of isolation and so in this case we'd be looking indeed did cause the death of another individual right so there was are generally other than the indictment or there are other separate documents that could have been used by the court to help it figure out what what he was pleading guilty to foreigner stand it correct me if i'm wrong you don't see anything in calderon pena as as a barrier to your position here i mean there was a lot of argument back and forth about calderon pena and the briefs is it is it still good law is it been abrogated in part i mean what what what we what do we do with that in bank decision i believe your are the kassam is abrogated and if to the extent that calderon penya states that causing bodily injury and then it's  changed for what a crime of violence on so on how much traction disses case have following the reduction and you know that the change in the penalties  cases but we do because we have four b one point one and forty one point two that apply the same use of force definition so in the context of those provisions we're still going to be seeing these arguments mission didn't change the commission did not change that ok so those  newspaper article in the columbia daily tribune from two thousand and nine that charged a man with voluntary manslaughter and armed criminal action i think he said they don't argue it he said there is only one way in which you charge are not necessarily one way but it is perfectly consistent with missouri law to charge this subsection one voluntary manslaughter as a lesser included of second degree murder yes and i would agree that is one possible way that the tar gently could happen under missouri but i don't think that's necessarily what happened in this case and with the hernandez a bore or that the judgment doesn't prove that's what happened in this case with the hernandez or hasse case that the government cited in that case the judgment itself said that the defendant was charged with burglary of a habitation a lesser included oftens so just like in martinez big guy we had the judgment look at the statute it could be a lesser included oftens but it could not be a lesser included often it's and that's according to the judgement and with the two cases that the government cursed agree is basically another way of saying subsection one i don't think that's true in the government agreed that it's possible that first degree is just a typo because that isn't a statute in missouri there's first a retired says class b felony and the only involuntary manslaughter that can be a class b felony is subsequent money that is incorrect your honor a class b felony in missouri can be either subsection one or subsection two the statute provides for the same penalty for both the sudden passion homicide and assisting suicide they're both class b penalties under missouri law in this case that i found recently this person was arrested for voluntary manslaughter and armed criminal action and the issue was suicide pact and the friend head of the defendant had shot himself in the head and the defendant had provided the weapon and in that case it was charged as voluntary manslaughter and armed criminal action that was from two thousand and nine also as far as the common law versus the model penal code and homicide versus suicide originally a lot of states did follow the common law and under the common law suicide was illegal but now the model penal code and the generic contemporary definition of these crimes is that suicide is not illegal and assisted suicide is a separate crime and as far as the armed criminal action the government points to cases where the firearm had to be used or the fire had to be displayed but under missouri law armed criminal action is simply aiding the fire has to aid the commission of a felony and that includes simply boosting the defendant's confidence and that's enough for that to be a conviction those are his fifth circuit case that says th e using brandishing in that sense can can be part of a crime of violence yes i think if it's brandishing or displaying or using then it could be but in this case aiding is all that the statute is the minimum that the statute requires and under the jones decision that includes boosting the defendant's confidence in that is not using force so i would agree that if it's as much as using or brandishing or displaying a firearm and creating fear in another person because they see a weapon or something that looks like a that i think castleman left calderon pena is the holding as far as causation of injury and using force it didn't change that holding and i think this court already recognized that in rico me here and rejected the government's arguments about castleman and in