and because this court should hold the underlying offense for second degree assault under washington law does not qualify as a predicate a violent offense for an ak and handsome and mr harrison was originally sentenced in two thousand and five at that time the district court didn't make a specific finding about why the aca has been applied except that the court concluded orally it did mr harris and appealed to this court and in two thousand and six this court affirmed mr harrison's and hands to sentence under aca by expressly relying on the residual clause of aca so at that point forward from two thousand and six for more than a decade mr understanding as to why he received it and hansen's was because of the on constitutional residual clause in two thousand and fifteen this court granted him permission to file a second successive twenty two fifty five petition but in january of two thousand and sixteen the trial court denied the petition the trial court heard in doing so the constitutional error to mr harrison of being sentenced under the residual clause which is now on constitutional should not be permitted the trial court went on he didn't reasons mr harris and instead the trial court decided it can later justify mr harrison's enhanced sentence under something that didn't exist at the time he was originally sentenced in two thousand and six it relied on this court's opinion in jenin which was a two thousand and ten case jenin however respectable a trial court ordered jenin does not control whether or not second degree assault in washington restate what has been said earlier but i do want to address your concern judge miss i heard you saying you're concerned about those certain circumstances where one a or one c is charged specifically and why then don't the means conver elements your honor i think your current concern can be addressed by both taylor and mathis where this court said and i quote it is impermissible for a particular crime to sometimes count toward enhanced meant and sometimes not depending on the facts of the case and under the government's argument here if you accept what the government wants the holding to be sometimes second degree assault under one cd is going to be a violent offense and sometimes second degree assault under one c is not going to be in we know that by looking at the jury instructions the court doesn't have to consider that hypothetical washington pattern instruction thirty five point one six says contrary to what the government's arguing that the elements of second degree assault that the jury has to find or twofold there are two elements of the crime must be proved by reasonable doubt first that on or about a date the defendant assaulted a person and second that the assault occurred in washington state that particular washington pattern struction then goes on to show that in that circumstance are two different means by which the government can prove the element of assault and it specifically lists one and one c the government said if one see is ever charged it has to be proved unequivocally beyond a reasonable doubt we know that not true because here the washington supreme court has already said when these two means are submitted to the jury the jury doesn't have to find one or both of those means beyond a reasonable doubt so in that circumstance one see wouldn't have been proved by a reasonable doubt and we're back into this place or matheson taylor say the court can't go cannot be a circumstance where second degree assault is sometimes a predicate offense and sometimes not this court can also look to its own opinions that haven't been discussed this morning and render and lopez to help further clarify the difference between elements and means the court was really specific that elements of the circumstances a jury must unanimously agree on means are circumstances in which the jury may disagree yet still convict the washington statu and the way the washington supreme court has defined means that squarely within this court to holdings in those cases in the second round of argument the government explained that there's no clarity as to what the elements of assault are in washington i would point the court to a third washington supreme court opinion that hasn't been discussed this morning state versus lynn ham a two thousand and two opinion that's when the washington supreme court first started talking about the alternate means of a crime or provided specifically in the three statutes delineating the three types of assault in washington but in that opinion the court also went on to talk about the common law definition of  the court previously has characterized the washington assault statute and were to determine that it's not a crime of violence mr harrison's lawyer notes that he's been in prison already for more than ten years which is the maximum sentence under nine twenty two g if you didn't have the enhancement and therefore asked for the obviously granting of the petition but for immediate release so i just want you to assume in a hypothetical world that you may or may not get to if we were to disagree with the government's position on the violent crime what is your position on the immediate release issue i wonder if it should be rebranded to the district court to make that duration what happened there besides the passage of time fashion i guess there's also been a question as to whether the supervisors release would apply a couple ation of time on those matters as well i think district court have to enter another g functionally that subsection c there are elements that must be proven there regardless of whether they scream or calls them and in this instance this defendant was charged only with that subsection and his conviction is only to that subsection and as to the issue of the wall the case and whether this court cannot now a look back and look at this case in the light of matheson aletta johnson i think that carries no weight here the court looking at that conviction because we have that we would have a very odd situation if this court were to find in the other cases that second degree assault a deadly weapon is a crime of violence yet because this court didn't address this issue back in two thousand and three two thousand and four never  and only addressed second degree assault under the residual clause that mr harrison is not an academic and what he does under the other cases would clearly have a crime of violence conviction so that would be an absurd salt of the law case uncertainty exists in the statute we don't have that here this is a issue that discourse quite capable of deciding and these are all claims that phantom had a great night and really would have no validity if you if we were not to accept your argument right if we were not to accept the government's argument and we were suggest that therefore the defendant was sentenced wrongfully at that point the sentence seems to think your honor i will not retread the analysis about the statute unless the court still house concerns it wants to debate but i would ask if the court grants this petition and finds for our version of the law that the court ordered the immediate release of mr harrison because it's no different than if he had finished his sentence and in an ordinary circumstance the court doesn't remand a defendant back to state court to make sure he gets the proper instructions there be no reason to delay releasing mr harrison he has conditions of supervised release that would apply to him and the concern about whether it should be a three year or five year term of supervised release because the act and handsome well known would no longer apply that could be addressed by the district court at a later hearing but that in another itself is not a reason to delay his immediate release mr harrison has already been in prison for more than for fourteen years for a crime that without the enhancement has a ten year statutory maximum thank your hono thank you that case just argued united states versus harrison is submitted again i thank all counsel for your arguments and also your care to not tread on repeating the arguments in all of these cases involving the washington statute so i appreciate all the good work of all the counsel both for the government and for the various defendant