thank you judge mention mitt please the court if i might reserve one minute for rebuttal yes you may have it thank you the district court erred in three separate ways in declining to sentence the defendant as a career ender in this case st the district court failed to adhere to circuit precedent holding that the massachusetts crime of assault armed assault with intent to murder qualifies categor as a violent felony and by extension as a crime of violence as well nd the district court misapplied the categorical approach by looking beyond the statute of conviction to be judicious divine the theory under which the defendant was prosecuted and rd a district court misread method to use its law in concluding that at the time of the defendant's conviction joint venture liability under massachusetts law massachusetts joint venture liability did not require shared and this court disagreed in cable ten and held that both pre and post and nettie shared intent was required under massachusetts joint venture law so cable ten for close is the rationale that the district court adopted in this case in declining to sentence the defendant as a career  those cases were cited to the district judge and if we thought there was some add big u a t and if we thought the government had blown its chance to make that argument about the post sent addy cases being used to read send addie then we're back to the district court's reading was unreasonable now let's put cable turned aside so you know you can't put district judges in  position of not making the arguments to them and then waiting and making new arguments that perhaps would have been persuasive to the district judge for the st time on appeal so what's wrong with us applying that rule to the government there's nothing wrong with applying that rule to the government although i don't think it would be appropriate to do so in this case  and there are two reasons why i say that st in the context of the discussion at the sentencing hearing about whether or not in this post bianco present any period joint venture  to assist that again and then the government went on to argue that the district court should not even consider joint venture a liability because under the category so  it may not have been as we noted in our reply brief the most wholesome of arguments but the government did argue at the sentencing hearing that the even in the present any period massachusetts a case law and the government reading the case but suppose you're wrong about if you were wrong and if it was a reasonable reading it doesn't that and this matter it doesn't your honor and let me answer your specific question and then explain why it doesn't matter with respect to your specific question accepting the premises of your argument which are your question which is to put table tennis aside and that just your courts reading was a reasonable one and the government didn't make didn't preserve your accepting sorry but again my question to you was let's assume the district court gave what was at the time a sensible reading  that that's correct but if i made it to point on that st joint venture liability under massachusetts law does not create a separate fenced it does not dispose of the requirement that the elements of the s the established it only adds additional elements so for purposes of the categorical approach a person convicted under joint venture liability is treated the same as the person who committed the substance  fats and for that reason and words applies even if a defendant was convicted under a theory of joint venture liability and secondly the district court here erred by looking beyond the statute of conviction in applying the categorical approach the district court looked to the appeals court of massachusetts decision in demining that the defendant was convicted under a theory of joint venture liability that of course is appropriate to do so in applying the modified categorical approach but the district court did not make any determination that the statute here was divisible in fact i think that would be a breathtaking ruling and it would apply across the board to any if not all massachusetts says and  thank you your honor and just to complete that sentence the district court in erred in going beyond the statute of conviction in applying the categorical approach ok thank you to my colleagues have any questions no thank you requisite elements of the force clause included intent to use what elements of the crime by the other venture that's enough that's correct judge chaotic and that it  really goes and in hand with our argument under edwards because the defendants argument below was that as a joint venture he wasn't a person that used attempted to use or threaten to use physical force and what sen makes clear is that the plain terms of the elements are four squads looks to whether the crime has an element the use attempted use or threaten use  physical force not whether the defendant in particular was the one who use physical force and a phrase their questions now thank you be district courts sentence was sensible in light of the record or the presentation that was made before and the government has forfeited its argument regarding the post bianco presented cases to the district court at sentencing and those are the cases that it's relying on in this appeal in arguing that even before isn't it there was a shred a shared intent requirement for  said quote to the extent that it's in any change the analysis of joint venture to whether the defendant knowingly participated with intent with the intent required for the crime mr maldonado scase prison ceded to nettie and it was applying the prior terminology minute i thought the government did argue below that massachusetts law at the time of this conviction did not did require the element of intent by the government argued sort of separately about this willingness to assist and will meant that did not preserve its argument regarding these presented he cases which were not presented to the district court i thought i thought are you aware of any case for what we say if you make a substantive argument about the state of the law and make it clearly you waived your ability to rely on any cases that you don't cite i don't think the determination has to be specific to cases but the argument was separate the argument was with respect to willingness to assist somehow requiring she had intent and here they're arguing that there is no realistic probability that should intent was required based on case law and i do think that's a separate argument argument has changed not just yet cases they say exactly your honor with respect to the government's reliance on edwards i believe that that's misplaced because edwards did not address  venture in massachusetts at the time of mr maldonado as conviction and the critical point is that edwards determined that assault with intent to murder is a violent crime under the a c ca because of the specific intent to murder and under the bianco elements of joint venture specific shared intent was not required a person could be convicted based on knowledge of the principals intent along and so could you stay with that for a nd when you say it was not required i'm not sure that precise wasn't a jury required to find that one of the two joint venture or years had the specific intent  how could i be guilty of a joint venture with joe to commit assault assault with intent to murder and less joe had an intent to murder are my understanding of massachusetts law is that one can be charged as a solo joint venture and that there doesn't need to be a principal who is also charged and convicted they have to be another person who has the intent otherwise how could i be  sun your honor we believe that the send is not instructed in this case because it dealt with sort of the opposite scenario less than an adult with the defendant who was the principal and i believe there is an admission that he had the intent to force a thank you that the question was whether he could be held liable for his accomplices possession of a firearm here we have the opposite which is that mr maldonado was the joint venture  and the question is where he did not share the intent of the principle and that intent is the key piece of what makes the crime a crime of violence or a violent felony absent that peace can he still be found to have committed a crime of violence and i think the answer to that question has to be now but the government also discussed this divisibility question and stated the  court misapplied the categorical approach which i think the court would not need to go as far as the government suggests with respect to that question we have suggested that the court could determine that either a join types of cases that would be affected are where a person was either convicted of a crime like this not with intent to murder or that specific intent is what makes it a crowd violence  or applying a modified categorical coach if the elements are divisible there's a determination that the defendant was convicted as a joint venture wouldn't apply to every single massachusetts offense during this time period between the beyond this case i think it our approach just limits from what the government has suggested which seems to be that if the court were to affirm as mr maldonado sentence that every single massachusetts offense would be affected but i think our approach in fact would only call for situations where a defendant had been convicted specifically as a joint venture which would be a subset of those cases with respect to ca that case is not directly applicable here because the court the court's ruling was specific to the drug crime predicates that were at issue in that case and that's made clear in peter's eighteen and twenty three of the slip of opinion where the court stated its holding was relevant to the drug crimes at issue here possession with intent to distribute and distribution of a controlled substance and significantly in cables and at page twenty the core stated that  see was concerned that under the younger elements quote in cases where a lesser crime escalates into a more serious crime and quote juries could convict a dr venture without determining that he shared the intent of the principal present in a crime like assault with intent to murder so one can indigenous scenario for example where a principal tells a joint venture let's go get joe and the try and venture knows that the principal intends to assault joe but somewhere in the midst of that assault the principal forms an intent to murder and now what are you q getting back dependent on the facts of ok the premise is still that we have to look at the underlying crime here i don't think the underlying facts of the crime would need to be looked at i think that the principle w intent to murder satisfies the force or elements quads and the fact that the defendant was convicted under a joint venture theory doesn't alter that in addition the entire premise of the defense and argument runs  of the categorical approach because the district court should not have gone beyond the statute of conviction to look to divine that he had been convicted under a joint venture theory thank you thank you concludes the arguments in this case attorney quinlivan attorney how saying you can disconnect from the meeting at this time