range due to the district court's determination that a prior conviction for simple assault and battery qualifies as a crime of violence as this court recognized in holloway a massachusetts conviction for assault and battery can be one of three types harmful offense of conviction necessarily was a harmful type and i used the word necessarily very specifically because that is the touchstone from us or the shepherd versus united states the facts admitted in the we were contained in other shepherd permissible documents must necessarily show that the conviction was a protocol and i ask you a question about that so the district judge who's the chair of the united states sentencing commission i believe made a comment to the effect of it's not very likely that it's touching took place recklessly and we have a few references fish to suggest that you know the enterprise of getting in to encourage discussion of what you know the typical case involves really a rabbit hole that the courts fought about and going down and i think the supreme court has been moving away from that type of analysis for example of a call that was clearly something that they were distancing themselves from and really i mean i think when one even thinks about it the situation of a domestic domestic partner one of the biggest sticking lading or you know moving back and forth i think is rife with opportunity for so what if even if we applied sort of a james type if not if we did but if one were to what is your sense from the cases that you see massachusetts in terms of of the state appeals court of the yesterday city or anything and so i think that's yet another reason why that exercise is a you know a dangerous ones even ganjam and i think the irony if you're right is that here you have what happened in the state court the protocol is that simply the prosecutor said the defendant struck the victim no statement of what the mental state was no statement of whether there was an injury or could have been an injury and that's all and so we're trying to divine what was in the mind of the prosecutor and what was in the mind of mr martinez when he agreed to that to ascertain what necessarily was admitted and it just seems we're we're far from the kind of certainty that shepard would require and the irony is that if you take for example holloway itself you had the language assaults and beat you know  whether it's a roulette any type of analysis or something else you know that the decision there in effect was we cannot assume from that language that the battery was a violent one you know you can you contrast sort of an interpretation of statutory or charging language on the one hand with you know what is said rapidly becomes councilman offended in a three minute state court proceeding to try and divine certainty from bad about what was involved to to just to simply guess that it must have been  government suggest that that is a separate reason took two to two to five that there could have been injuries or that there were injuries and i would suggest that's simply not the case the fact that there were no lasting does not mean there were any injuries  agreed that what the prosecutor just said is true and that's not the case you're going so well in certain instances certainly attributing to a fan death the statements of his lawyer is certainly appropriate this is not the kind of situation where there was any kind of affirmative admission by the lawyer something that mr martinez lots of you hold accountable for and also notable even in the non shephard permissible documents in this case there's no indication that there was any injury whatsoever and so you know for the government to sort of try and focus on capable of causing violence and did cause violence it still would not necessarily resolve the mental state question and again a an act of just peculation could result in injury even unintentionally and so you know the injury is only half of the question here let really that again highlights that there are two defects to what the government wants to do with this colloquy both the lack of intent on the one hand and the lack of and just show of injury or possibility of injury on the other hand the government also suggests that a separate conviction as an alternative ground the court mark one of the number you have united states let me begin with the last conviction that my friend has discussed which is the defendant simple assault conviction because that conviction does qualify categorically and let me explain why that is and i point the court to the supreme judicial court of massachusetts decision commonwealth versus grassi because that really is the flagship case that discusses the elements of simple salt and the court there are defined simple assault as involving the attempted or threatened use of physical force but it also went further it said there were two types of simple salt one is the attempted battery which it defined as the attempt to inflict bodily harm on the victim the other is the threatened battery for which the court defined as putting the victim in fear of imminent bodily harm and in fact the court said that he expressly tied those two together that the physical force the that it was talking about was the attempted or threatened infliction of bodily harm that is precisely the kind of physical force under johnson that would qualify as whether it be a violent felony under the arm career criminal act or here under the guidelines under the force clause and indeed this court's decision in n m with respect to the crime of assault with a dangerous weapon says precisely that this court cited grassi in saying that the crime of assault with a dangerous weapon qualifies categorically under the force cla of the career offender guideline as a crime of violence this court reaffirmed and two years later in its unpublished decision in chance to check and i would suggest that if there were any possible doubt on this issue it was removed when the supreme judicial court of massachusetts just last year in the marine hope case expressly said that simple assault qualifies as a crime of violence under a different federal statute eighteen u s c section sixteen because it has as an element attempted or threat use of physical force but the use is also mean there is this sounds a little counterintuitive but its use attempted or threatened so but what about you school can't you have you have use in a reckless attempted usually or threaten use of physical force here a simple assault by its elements is the attempted or threaten use of physical force which the s j c has further defined as the attempted or threatened infliction bodily harm so i don't see there's there's really no argument here that simple assault can encompass attempted or threaten a sense of touch and i think that makes sense you know people get charge of simple  for pointing a gun at somebody or saying that i'm going to shoot and kill you they don't get charged with simple salt for saying i'm going to pinch you or for spitting missing somebody but once again i think if you if you look at the yes jaycee's decision in  it is not an element of an assault and to the extent that in fact that's why in holloway for example dischord didn't analyze the question of whether assault and battery qualify under the first clause because the existence of the possibility of a sense of touching removed that as as a possible arc so we have physical force is in both the assault and battery and the assault offense same term cases grassy is the definition of simple assault to court separately defined assault and battery as involving the three forms the harmful battery the offensive touching and the reckless form of a battery simple assault is where the use the term physical force comes up in the court said it's the attempted or threatened use of physical force and then once again went on to link that to the attempted or threatened infliction of bodily harm so while my friend is correct that it appears there is you often hear the term that assault is a lesser included offense of assault battery in fact it really is only a lesser included offense of the harmful form of the battery and that has to be the case because for example assault is an intentional crime and it can be a lesser included offense of the reckless form of the battery which has a different mention radio otherwise the whole way it is decision would have come down perhaps differently based on the minutes rate so i would i would admit that what my brother says or my friend says is an ironic result it's the nature of a categorical approach as as this court said in its fish opinion with respect to assault and battery with a dangerous weapon that seemed on its face to qualify as a crime of violence under section sixteen but this court found that it was overbro let me just briefly talk about the assault and battery conviction i think that the court can look to defense counsel statement that there were no lasting injuries i think i as we noted our in our brief there is actually a division of opinion on the question whether shepard means that it has to be just the defendant's admission or whether defense counsel's mission qualifies well for circuit had a divided opinion on that point  but if i think if somebody says there are no lasting injuries that necessarily means that there were some injuries if the victim in this case wasn't heard the defense counsel was said would have said she wasn't harmed or she didn't suffer any injuries no one would say when somebody didn't suffer any harm whatsoever but she didn't suffer any lasting injuries and with with respect to the mens rea or the intentionality i'd point to a couple points first the fact i think as the district court here found the use of the word strike necessarily means a form of an intentional act and i point to this court's decision in davis all where this court said albeit in dictum that where the charging or the police report indicated that a defended had struck a victim in the face and that she had suffered a bloody lip that that almost certainly would indicate that it was the harmful battery form of the crime but i would say that i think the cleaner route to affirm in the spaces is actually the simple assault conviction and i say that because it involves use of the categorical approach as opposed to the modified categorical approach and the force clause as well as as opposed to the residual clause and i think that there's although this issue wasn't raised bill oh it said that was a correct statement massachusetts law but that's right just stay out of it in that very same opinion once again the court twice defined defined the attempted tempted battery form as involving the attempt to inflict bodily harm and the frightened as putting the victim in fear of imminent bodily harm so i think that coupled with that definition  is clearly a force that would be violent force within the meaning of shots well but stay with me if massachusetts judges who are into yesterday see correctly instructing juries in massachusetts that the assault is defined as a threat to use some kind of force and they give them proper instruction as crafted in this case and affirmed in this case and how will we take the jury verdict that ensues from that instruction and say well the jury must have had in mind some heightened level of force that's not even mentioned in the instruction is required element my answer just get out it would be the kind of whatever is meant by some level of force it is physical force within the meaning of the cuts the word physical is not used in the approved instruction no but it it is it is used in the yes jaycee's when the s j c sets out the element facts it says expressly did a soldier is defined as the attempted or threatened use of physical force and then it says that it goes on to say that once again he attempted battery is the tempted infliction of bodily harm and threatened battery is the putting the victim in fear of imminent bodily harm so whatever physical force that is it's physical force that is attempted or threatened infliction of bodily harm the jury doesn't know what else  looking at the elements of the offense and the elements of the offense are clearly set forth by yes j c in gra i would suggest the government is dramatically over reading caressing it's certainly true in garages he does say that the threatened or attempted infliction of bodily harm it is a simple assault to caress it does not come close to saying that that is the only way that simple assault is cognizable and in addition to the passage that judge cut out of just read i would direct the court's attention to page two for forty seven of the mass reports oh version of the opinion but begins a definition of a soul so under the common law an assault may be accomplished in one of two ways either by an attempted bedri or by putting another in fear of an immediately threatened battery and then it goes into a strange citation among the strange citations of commonwealth v burke and the current federal quoted by the c there is quote criminal bettery is harmful or offensive touching so clearly when aggressor is setting up a legal framework it is saying that the attempted or threatened assault can include the offense a form of battery not just the violent form of battery the fact that the opinion leader has language that says threatened or three times of actual bodily harm is a simple assault is certainly true but it does not exclude the offense of touching version again i can't say with certainty now whether there is a published case about it but i would suggest that the that the offense of spitting at somebody in this ng would be cognized well as an assault as a the offense a form of battery that is not a crime of violence and really nothing the government says would belie that