the smith mr wisdom i appreciate the opportunity to clarify my argument for derrick ball and why i believe that the kentucky flinging of baiting statute should not fall under the arm career criminal act  purposes of today i made several arguments in my brief but i'm going to focus on a couple of them for the court because of time constraints and i think those are the most important issues the first one of course is whether the kentucky fling innovating k r s five twenty owner in five should be fall under the a c c a if it is considered a felony and i want to start off by saying a general overview of all my argument is on the statute and then take the court through how i get there and one of the things i want to ask the court to keep in mind is that in this statute there's an equivalency of conditions and of punishment that i believe takes it into the big a analysis and let me fling domestic violence dui driving on a dui suspended and finally the fourth provision which is the substantial risk of injury language that mr ball pled to in two thousand and nine i would also note that in the statute in the second provision of it it can running on foot and creating substantial injury in the same class d felony now when i look at this the first point i want i want to analyze the statute is where it should fall and how we should analyze it in the c c a i think it's fairly clear that it doesn't fall in that one provision of use threat and used or attempted use of force and i cited to the court and my fling innovating generically does not fall under that provision so i think that leaves us with the residual clause and i think the next step for us is is a categorically should we look at it or under the modified categor the district court in this case i believe looked at it categorically and page forty five of the sensing transcript you can see where the courts are quite frankly i think this should be a categorical pro i disagree with that and let me cite to the court some of the things that i believe in you know in us besides this is my first distinction between a case because we know that the united states supreme court analyzed in the end of fleeing evading statute and i believe that they did that categorically however kentucky we cannot do this categorically and i would cite to the court u s v james a page to await where they say that a crime will fall outside the categorical definition if there was a realistic probability that the state would apply conduct under that statute outside of that chair generic definition i think when we look at the kentucky statute and look at those conditions a person can be pulled over after they  disobeyed a police officer and not have their license in their pocket because of a prior dui that is a strict liability crime i don't see how we can see it and why i would also and i believe when we look at  that way that we're stuck with the we're taken outside of the categorical approach and when we're taken outside of the categorical approach i believe the stress and importance is on how we interpret the kentucky statute you know when i look at big a when i say that at one forty five you know we have to look at the state law in question whether it's similar and or similar and risk again looking at state law when i look at james at page one ninety seven or again in two person has a cause or create substantial risk of serious physical injury sounds like it's the same language that made it do you understand exactly what course saying and that's why i'm saying we have to look at this in interpretation of kentucky law because when i look at that sta and i see that those four conditions i don't see any difference in how kentucky would view those again there's a quinsy of those conditions and when i look at two of those conditions being clearly strict liability dui and  driving on a dui suspended i think when we interpret this statute at the very least we got to say that kentucky would interpret this as a reckless crime and that's why that's the main me to my argument really is that when we look at this statu and what mr ball pled to back in two thousand and nine he was pleading to what kentucky would consider a reckless crime and i just knew that simply from reading that statute you have a kentucky case from doug supreme court that says that i look for one your honor but i could not find one because i was hoping that i would be able to find one like that but i just couldn't couldn't find one that said that don't you run into a problem with food language and cites case that talks about approach because if i read sites correctly they analyze the indiana fleeing of aiding states you categorically were not so analyzing the kentucky statute we have to take it outside of that categorical definition and when we do that and i look at the clause and what and i want to take that and i see the stress on state law interpretation of these statutes i got a look back at that statute and say to myself there's an equivalency of these conditions and there's also  punishment because i think once we get there we also have another hurdle to overcome to be persuaded by my argument and that is if can we do something like what the united states supreme court did in chambers and split this statute up and my argument to that is no and what i noticed in chambers is they were able to split that statute because we would talk or to look at that statue differently because there was an equivalency of punishment for both attempted burglary and burglary itself so they said tempted burglary would fall under this and then they went to the risk analysis and i would also point to psychs too were that the fended argued and i can cite the page number for the court at twenty two seventy six that he said i was convicted under this one provision the same statue which was simple fling innovating did not have that substantial risk language in it and the second provision statue did have to substantial risk language the supreme court rejected that and said no we're going to we're going to treat these the same because there was an equivalency of punishment involved they were both the same punishment and when i turn that reasoning to this case we have a class  four conditions two of those conditions are clearly strict liability and so when i look at that fourth provision in what he pled to in two thousand and nine i look at that in kentucky law as being reckless which takes us into the gay analysis instead of section of this statute he was he was charged with because it is it divisible statutes got four different categories here so once we go to the shepherd documents we see that he really is charged under section four and section four is almost identical to the armed career criminal act other than it doesn't create it doesn't have the potential way it actually requires causes or interpret it when you don't have anything i mean i would i mean i read the language to say what it says it requires the same conduct other than the potentiality as the a c c so i would just say that is the kentucky view that is a reckless crime and that's what your hope would be i guess that's how i interpret as i understand the courts are not right and because that language and i would notice that in the he wasn't causing in his indictment was create it was created substantial risk so there wasn't a cause we actually did something but it was the creation of that but if i did leads me sort to in my next point try to even if you all are persuaded by my interpretation of kentucky law i would i think the rule of lenity has a little bit of teeth here for mr ball and the way i would look at that the honors back in the big a case came out in two thousand and eight he pled guilty to this in two thousand i was we convicted and i think looking at when i said the equivalency of those things where the kentucky puts dui suspended driving dui suspended driving on a dui in the same category which is i have to disagree they had to be read together not visibly that somebody in two thousand  for going to continue this legal fiction that people are on notice if these things that somebody would quite reasonably say when i plead guilty to this based on the gay analysis that i'll be all right under the a c c and i think back then you know i really do because it wasn't until four years later we actually had the supreme court telling us there were no flaying innovating is one and that was also under a different statute if kentucky did not have the dui language or the driving and you was suspended i think this would be a real simple case but with that in there i think there's enough ambiguity were mr ball should be given reason the benefit of doubt because the touchstone of lenity is statutory ambiguity and also notice but that if we decide it's not ambiguous then they get any benefit right i'm sorry on if we don't bad that it was ambiguous then he doesn't get the benefit of the skewed and sikes as well because kentucky quite says to running on foot and the psychoanalysis talks about the all the things going on with driving and flying it looks like i have a little bit of time left here i just want to quickly talk about derek's right to a jury trial or sixth amendment but i was one of the issues i preserved as well under alleyne and i think one of the first things that i need to do is to this court even render an opinion on something like that and i think the door is open for this for us to do this even despite that footnote allina says we kept this narrow exception i think it's time for me to sum up here i really want to get into that but i have i have i think the meat of what we're doing here is where this kentucky statute is should fall under this and again i look at the equivalency of those conditions i don't think it's divisible and hausa look that the  morning morning may it please the court kate smith from the eastern district of kentucky on behalf of the united states at issue here today is one of derek balls three convictions and that is his two thousand and eight conviction in mercer innovating in the first degree of kentucky's fleeing and evading statute in the first degree is categorically a crime of violence mr rader focus on the four subparts two section one a i would like to focus on the core offense in one way which deals with vehicle flight knowingly or wantonly from an identified police officer who direct someone to stop that is exactly what the court considered in sykes it's a different statute indiana law it's structured differently but what sikes looked at was that very similar situation to known police officer tells someone to stop and the person knowingly flees from the officer those are the conditions it in essence doesn't matter what sub part mr ball is prosecuted under because he has to be guilty of that first score offense that is not a reckless crime knowingly or wantonly is criminal intent kentucky law defines as recklessness plus it is beyond recklessness under a kentucky statue i'd like to focus on the language in sikes which is directly relevant here and i'm going to read directly from it risk of violence is inherent to vehicle flight it presents more certain risk as a categorical matter than burglary flight from a law enforcement officer  invites even demands pursuit as that pursuit continues the risk of an accident accumulates and having chosen to flee and thereby commit a crime the perpetrator has all the more reason to see to avoid capture in all of the alternative scenarios under the kentucky statute that couper offense has already been committed in this case mr ball when a step further and was under sub par for admitting to conduct that caused a substantial risk of injury to another person but i think that doesn't matter because he's already guilty of the core offense and psyche says as a categorical matter that vehicle flight meets the standard of  crime of violence under the armed career criminal act if we didn't follow the categorical approach what would we do we would get to the modified categorical approach so the statute is divisible in the sense that there are alternate scenarios presented under it there are different clauses someone could be guilty of but each of those clauses is a crime of violence so the court doesn't even have to get to that phase but if you do get to the phase of modified categorical approach which judge reeves did consider because he did get to the indictment in this case then the court can look at a limited set of documents including the indictment the  an established which subpart applied to the defendant the actual conduct of the defendant doesn't matter you look to those documents simply to establish which subpart the defendant was pleading guilty to and in that case if you get to the modified categorical approach on the statue derek ball is plainly guilty of a crime of violence that what does it show it shows that he committed the crime knowingly he resisted a police agreement he conceded the facts as in the indictment getting to this the second part of the statute section one be light on foot that issue is not before the corks that's not what derek ball is guilty of but sykes does suggest that that sub part would also be a crime of violence or felonies of the same magnitude vehicle flight and plate on foot and it has the same mens rea requirement it also has sub parts which both add an additional degree of risk now sikes didn't consider this the supreme court hasn't considered this and we haven't briefed it but i submit that it is also a crime of violence it has many of the same factors that the logic in sykes uses it has the same knowing or wanting fleeing from a police officer the expectation of confrontation with police and indifference to the collateral consequences mr ball's own con that led to the current charge the felon in possession charge is an example of what can be expected when somebody runs from a police officer he fled and was and was apprehended he had two forms of drugs marijuana and cocaine and a weapon on him that has an inherent risk maybe less than vehicle flight but it is enough to trigger crime of violence under the arm career criminal act the court considered a similar statute in the united states versus meek's this court in the court held that wanton endangerment constituted a crime of violence because it created a substantial danger of desk death physical injury that is true here it has the same mens rea no wantonly and the crime leads to that same potential for serious risk of injury i think is misguided under psychs the focus there was part four of the vehicle flight statute and it turned on property or person whether the harm was to a property or person and under psychs that isn't necessary it's a core offense that really makes it a crime of violence there are two other crimes that mr ball was convicted of qualified as crime of violence one of the other charges was also fleeing innovating in the first degree the fact that the defendant concedes this shows that it is possible that this crime is a crime of violence as for the defendant's constitutional arguments the rule of limited does not apply the statute is not ambiguous and binding precedent makes clear that the statute is constitutional similarly high end  apply because of the exception for district court to determine prior convictions for the reason stated in the government's brief falls additional constitutional challenges to the arm career criminal act as a matter of law burgled again i would just say their mind temptations statutes not divisible than we have can we say that really somebody want me doesn't have their license in their wallet when they're being pulled over that's why i say the wanting and the knowing part is when the person i'm asking the court to do that that still would not fall under that what i think the judge was focusing on is that i didn't give him the play calling the queen that was involved that he had all the other things but i was still making my arguments preserve that the statute as a whole should not fall under the a c c thank you thank you and the case will be submitted restrains your know you were appointed them the criminal justice act thank you very much and you may call the next case