please the court ladies shepard for mr her lawyer or tease the issue in this case is whether the texas deadly conduct statute categorically qualifies as a crime of violence within the meaning of the two thousand and fifteen version of the illegal reentry guideline overbred is not at issue in this case because this court has previously held that the texas deadly conduct statute is overbroad so the particular issue in this case is whether the deadly conduct statute divisible meaning whether does it contain multiple crimes with different elements or does it set forth a single crime with various means to commit that crime the texas deadly conduct statute discharging a firearm at or in the direction of one or more individuals or a habitation building or vehicle with recklessness as to whether that target of the shooting is occupied how will this court said that the primary test for distinguishing the elements and means is whether the jury needs to agree as to the statutory alternatives and if a state court decision definitively answers that question then the inquiry goes no further in butler texas court has answered the means or elements question because it established that the targets in the statute are means and not elements in that case the defendant was charged with discharging a firearm at an individual discharging a firearm at a habitation and the court held that the state was not required to elect between those alternative methods of committing the crime this case is also important because it provides an example of a defendant being charged in a way that is consistent with the alternatives in the statute being means under texas charging law the texas code of criminal procedure requires that separate often says be charged in separate counts of an indictment but in butler the defendant was charged with separate versions of committing the off different paragraphs of a single count and that is consistent under texas charging law with those alternatives being mean towbar that the defendant was charged similarly with being with discharging a firearm against an individual in one paragraph and discharging against a habitation another paragraph so of the same count the indictment and also in that case to bar the court applied the sufficiency rule that the state is only required to prove one of the means that charged so in that case the court only considered whether the evidence was sufficient to support the habitation charge and didn't consider the evidence as discharging a firearm against the individual the government's cases do not support the targets being elements and i'd like to address the site five cases in their brief and i'd like to address each of them briefly first the government cites to back up but in that case the court was dealing with misdemeanor texas deadly conduct and not felony texas deadly conduct and because the statute sets forth different penalties for misdemeanor versus felony texas deadly conduct it's clear under matheson aplenty that mr texas deadly conduct is a separate crime the government also relies on byrd but that court that the court in that case merely made an offhand reference to elements based on the undisputed testimony in that case the defendant had testified that he shot  firearm at a person who was driving a vehicle towards him so the facts of that case supported both discharging a firearm in an individual and discharging a firearm at a vehicle and the real issue in that case was whether the defendant was entitled to a self defense instruction next the government cites to the wilson and reed cases but both of those cases use elements in an evidentiary sense and not in a ma and what i mean by that is that in the mathis the way mathis uses elements is as the constituent parts of a crime as legal definition that a state's required to prove and then wilson and read the court was considering the hypothetically correct jury charge which is the statutory elements of the crime as modified by the charging instrument so in both of those cases the defendant was charged pacifically with discharging a firearm at a  that's what the texas courts were considering when they were judging the evidence presented at trial against the hypothetically correct jury charge and this court in him cole recognize that distinction between the unnoticed requirements and the way that mathis uses the term elements in he will the government had pointed to cases where a defendant had been charged with a particular method of delivering a controlled substance and then had required the state to prove only that single method of delivery and this court said that the government's reading of those cases confuse the evidentiary unnoticed requirements for the mathis elements finally the government relies on the honey cut case and in that case the issue was whether texas deadly conduct was a lesser included offense of aggravated assault but like the sufficiency of the evidence inquiry the lesser included is tied to the elements as charged and in that case the defendant was charged with aggravated assault by causing bodily injury and so the court considered the texas deadly conduct statute only as to discharging a firearm at an individual how much different should we give to the butler case given that it's from an inner intermediate court of appeals but more importantly it's unpublished even though the case is unpublish intermediate court of appeals i think it does deserve this court's deference for two reasons first of all the court in butler when it issues a memorandum opinion it saying that the issue of law is settled and in butler the court relied on the huffman case which is a texas court of criminal appeals case and in that case there's a lot of discussion about how the state doesn't violate the defendant's right to a unanimous jury if the state charges alternative methods of committing the second often and the huffman court also discusses how the under texas law the whether a statute creates more than one offense is what is the focus or grab a man of that offense and one handy rule of thumb for figuring out what the focus of the often says is to look at the verb and that's the conduct typically that a jury has to be unanimous on so then applying that to texas deadly conduct statute the discharging of the firearm is the verb and that's the focus and grab women of the offerings so because butler was applying well established rules of texas law i don't think the fact that it's unpublished should prevent this court from relying on it and also because of the number of cases that end in please a single unpublished case could be indicative of many cases that have the same charging practice and we do also rely on the towbar case that shows a defendant being charged in the same way under texas law and finally also at this court in lobaton recently did rely on intermediate appellate court cases one doing a mathis inquiry in an arkansas statute so that would provide some precedent for having relied on intermediate appellate court cases assuming that this was there harm further harm less the judge said regardless so whether these are the guidelines or not this is the same sentence i would give either way and so we have that date month but but is there harm aren't there harm harmless  was harmful it was definitely not harmless under this court's precedent the district court in this case never considered to be correct guidelines range without a sixteen level enhanced meant and so the case clearly falls under the line of cases of martino's romero and and under those cases it's not enough for the district court to say that he or she would have imposed the same sentence the government also has to show that the guidelines did not influence the sentence in any way or that the guidelines do not play any part in the sentence imposed and in this case the guidelines clearly played a role because the district court used the guidelines range of forty six to fifty seven months that included the sixteen level enhanced men and then departed downward one criminal history category and then imposed to that range of forty one to fifty one months and then imposed a sentence precisely at the bottom of that range and under martino's or marrow it's not enough  district court then said that he would impose the same sentence because the guidelines clearly played a role there isn't any thing else in the record that explains the sentence of forty one months other than the guidelines and also in martina's romero the district court actually said three times that it would impose the same sentence and this court still found that the the sentencing error was not harmless and in this particular case the government had t burden the stone that's correct that the government does have a family that this court has described as difficult and heavy to show that that was harmless and i think that heavy burden makes sense in the context of recent supreme court rulings that of molina martinez and pew that demonstrate that the guidelines have a powerful including effect and in this case the correct guidelines range was eighteen to twenty four months  is upwardly varied to exactly forty one months if the court had not had that incorrect guidelines range before it briefly shepherd i think that was that case is basically in a posit because there the district court said that it was moving the defendant's objection and very downward to a sentence within the guidelines range that would apply without the sixteen level and handsome and and that's definitely not what happened in this case and in custer alfonzo the district court said that it would impose the same sentence and explained that it had a transcript related to the prior conviction that showed office was one that involved b dwelling and this court said that because the district judge was for plain and clear in expressing the court's reasoning that it would find that the error was harmless and in this case we do have some discussion of the underlying oftens in the context of ruling on the objection but when it came time to impose the sentence the district court clearly calculated the guidelines with the sixteen level enhancement and then said it would impose the same sentence but didn't provide the particular kind of reasoning that was present in the proper guidelines or not i'm not going to use the guidelines i want to give in the same sentence and on top of that he's got some bad prior convictions even though they're all i think the problem is that the district court wasn't that specific and also that doesn't provide a reason beyond beside the got besides the guidelines for why the district court chose forty one months and when the district court was discussing the prior often see it was in the context of defense counsel having asked for a downward departure based on the room openness of the choir conviction because it had happened the conduct underlying the conviction it happened eighteen years before the sentencing in this case and the defendant had been sentenced fourteen years before the sentencing in this case so the district court was responding to that saying yes this remote but it is a serious oftens and when the district court stated its reasoning for imposing the forty one months it didn't say that it had to find forty month months was the right sentence based on that part or often so i think the record in this case shows that the guidelines did influence the sentence and therefore the error was not harmless the supreme court stated that a statute is developed divisible when it lists multiple alternative elements and effectively creates different crimes mathes reaffirmed this principle indeed this to the supreme court said it was merely a hearing to the same elements based focused that had it had used over the last past twenty five years that's the same rules this court has largely been applying the supreme court was announcing a new rule recent cases from this court have said have described map first as providing guidance or clarifying regardless for supreme court decision to overrule or change the circuit's law it has to be more than merely illuminating it has to unequivocally overrule precedent and that did not happen mouth us supports this so this court's decision in hernande this state law also confirms that twenty two five b is an element based in read which the texas criminal court of appeals decided in two thousand and eight it affirmed the lower court's conclusion that the jury could not find the elements of deadly conduct beyond a reasonable doubt under twenty two point zero five the two honey went on to describe the elements of aggravated assault in conjunction was whether deadly conduct was a lesser included offense it just chime in that they were functionally the same and it described dudley conduct elements as knowingly just charging a fire at or in the direction of someone excuse me other cases are also cited on pages twenty seven through twenty nine of the government's brief but importantly here what i'd look at that entire case and its analysis it's a sufficiency challenge nobody was complaining about the elements or the charging or anything like that so the fact and the more importantly as as i believe those of friday or saturday no texas court has ever cited that decision the same is true of towbar it has the exact same short comings it has no precedential value as an unpublished opinion the court of appeals cited no authority it reaffirmed this court's decision in her name just rodrigues and cabrera was decided in two thousand and twelve and while it's an unpublished decision what's important is it upheld or reaffirmed if you will this court's prior precedent hernandez for drug use finding that deadly conduct was a crime of violence but what we have here are two choices really we can either this court can either find that state the district court was untitled just to examine the shepherd approved documents to narrow the affronts and to determine that laws it was convicted under be one and the indictment also supports this conclusion tube and as we know from map this if an indictment references only one alternative to the exclusion of others divisibility is strongly suggested and that's on pages twenty two fifty six through fifty seven mathis and mend this court's decision amend us also oversights that the structure of twenty two five also supports the court's prior conclusion distinct conduct is was analyzing the aggravated sexual assault statute that criminalize specific pondok of different types sections were just words separated by the word or just as they are here and the court said that was some indication that a provision constituted an offense what we have here quite simply is not an illustrated of list or an outline of multiple ways to satisfy a single melon and we have a discreet section and subsections committing different offenses and so the net result is this court's precedents remain intact and control the disposition here and her new under the new tanks lee opinion change challenging the statutes indivisibility on the petition for a rehearing what it they're challenging it in relation to the controlled substance of funds but tankful is very different because here what we have is that we already have this court pre where the court went through this and hernandez for druggists if you look at the opinion and hernandez for druggists this court already looked at taylor had already looked at shepherd and tail and shepherd were not changed by mathis one vet and the took the court employed those element based analysis to determine that the that the relevant statute is a crime of violence now one thing i want to point out that was a little bit different in hernandez rodriguez is quite frankly it talks about subsections but if you walk that back in relation to the case that the court cited in that case cited it was elements to the original so citing case was an element based language and of conviction under twenty two o five is not a crime of the islands because the two is not a crime to be two is not a crime of violence b one is under hernandez but not the two under dixon or the analysis of  what i am saying in relation to tanks which is different here in tank slate you did not have the strong support from this court's precedent that you do have here because it hernandez fredricka says i just said you have sheppard taylor you have elements based and the conclusion the statute is divisible while the court to not expressly say that and hernandez rodriguez the opinion is clear or opinions that are carried forward but even if this court does find that there there was an error it is harmless and castrol fons of this court said that it would take the district court at its word and here the word was it wanted to be very clear if for whatever reason there was a problem a miscalculation or an inappropriate guideline determination it definitely would impose the same sentence under thirty five fifty three a and that's on page one thirty one of the record the court was plainly aware that per laws it was was somebody who intentionally killed somebody and shot another person and there was that was one of the incentives for the court to depart downward but the court judge and a host to has pretty familiar with all these stunts and rolls want again said he wanted it to be very clear that this was the who departed downwards and then worked all you know then had his departure but as i just said and castro he departed downward from the guidelines couldn't do it i understand and i understand there's two ways to look at it as opposing counsel pointed out but again the court said it wanted to be very clear if for whatever reason and aside from him saying then my question again these what else is there in that record that would indicate that that is that he departed downwards the guideline was he sentenced at the bottom of the guideline i clearly understand that but the fact of the matter is we do have a judge saying this is what he would impose regardless and if word that i'm suggesting that this court do the same here and if you look at these cases i was actually involved in the whatever you do if you say then put this on your lips make this statement at the end of every sentence you will have a well if you look at the history of these cases quite frankly i think they're rather difficult  you have a martini us from a judge saying three times i forget her exact words but it was i would impose the same sense or something like that but right before she said that she talked about the guideline range which was deemed and correct here the judge did remove it another words he didn't reference the guideline range immediately and then say he wanted to be very clear i understand the sensitivity in this area but if you also look at a lot of these cases quite frankly sometimes it's enough to get in a firm and sometimes it's not and i think a lot of these judges are trying to do the best job that they can but if let's say for example a judge let's say the guideline range was forty to fifty if the judge said well alternatively i'm going to pose a thirty nine month sentence you could easily say to me will thirty nine it's just a reduced one to say that it's hard for us i think it just records in a very difficult position these days trying to impose an alternative sentence to so to the extent that this court were to find that it's not harmless i think i think many district court judges would welcome the opportunity for more guidance in this area because they're one of the guidelines of course are to help a judge sentence a de and to have consistent saying among defendants in various situations and so when a judge such as judge departs downward saying that he wasn't comfortable with the original guideline range and then sentences based on his or i should say based on his departure but but moves downward and then says lot of impose this the same sentence anyway based on these facts above all bluff then the best we can say of the government is guideline range because we only get to the alternative sentence right if you're going to reverse which of course we hope you don't because we believe that that under matheson based on the state law and all of you know the things that we just discussed and have been briefed hernandez rodriguez should remain intact just like it has just like as the court has found in the texas burglars statutes and i realized those cases are different just as tanks claim in a lot of these cases right we have to you have to take a particular statute and look around what texas is doing that's what tanks i mean that she's made that's what mathis tells us but mathis also tells us that we can look at the structure of the statute itself and we have a court of criminal appeals decision saying when the statute has this the or when it's listed separately what the or the vick case tells us that that's an indication that's a separate provision so with all these things them up i mean with all these things in mind a few points on rebuttal first of all the court in hernandez read regan's did not decide the divisibility question the court jumped right to the state court conviction documents and as opposing counsel said the court did not express the considered divisibility looks at the texas court cases that mr paralyze ortiz has cited it's clear that the statute is indefensible and as far as the idea that mathis hasn't overruled this court's precedent the court said that it has leave the court also said that the court needed to apply mathis even if it was contrary to prior precedent of this court and the same thing happened in goma's pres so i think that mathis did change the l in terms of the divisibility analysis and you really in in hernandez read rodriguez don't have the kind of visibility analysis that mathis requires but in regard to what mathis did as you know our case law requires that there has to be what we have called an unequivocal intervening change in the last of the supreme court has to have directly addressed the statute at issue and that is not what massless did so we would we would have to wait for something like that to to change our law well my response to that would be that this court has already said that mathis did enough to change this court's precedent and this court still found that it was enough of a sea change in the law to require the court to reexamine its precedents before mathis and as far as the opposing counsel saying that the butler court did not cite any authority as i discussed in my opening the court the butler court did cite hofmann which said that the verb is the often a grab a man of the offense and butler was merely applying that and the butler court did specifically address this question of divisibility because the defendant had argued that the often says of discharging a firearm in an individual and discharging a firearm at a habitation were miss joint and thus violated the defendant's right to a unanimous jury verdict and the court in butler said no it was fine that that was how it was charged it was fine that's how it was tried just junk did lead to the jury because the were merely alternative methods of committing a single crime and i would also direct this court's attention to the published intermediate appeals court decision in miles that said that the allowable unit of prosecution in the double jeopardy context is the discharge of a firearm and so if that's the allowable unit of prosecution it would violate double jeopardy for a defendant to be convicted of violating the statute for shooting an individual and shooting a as far as harmlessness i would point this court again to the a bar luna decision in that case the district court said that the guidelines range was twelve to eighteen months and actually upwardly varied to a thirty six month sentence and this court still reversed the correct guidelines range was six to twelve months so clearly that guidelines range on remand would be insufficient but the court found that there was not enough in the record to demonstrate that the guidelines that the sentence imposed once not influence in the guidelines and i would say the same about this record the district court before imposing sentence did calculate the guidelines range with the sixteen level enhancement said it was applying a sixteen level and handsome and calculated oftens level side with the guidelines range was and then ultimately opposed and imposed a sentence below that guidelines but this record shows along with the statement of reasons was that this sentence was influenced by the guidelines range which is how the guidelines are supposed to work they have a powerful