morning ladies and gentlemen good to see all of here the st case on their argument calendar as united states versus white good morning please the court i'm going to attempt to reserve two minutes for rebuttal the men's rights issue presented in this case has not been decided by this court and remains an open issue california appeals courts will sustain a conviction for section two hundred and forty three c two if the defendant and tends to commit the act that causes the battery and has actual knowledge of those facts that would lead a reasonable person to conclude that a battery is a direct natural and probable consequence of committing that act and other words california appeals courts will sustain a conviction for section two hundred and forty three dollars c two even in the absence of evidence that a defendant intended to commit a battery or intended to cause harm the men's rights are required to sustain a conviction under section two hundred and forty three dollars c two stands in stark contrast to the mens rea required for the generic crime of violence the supreme court made clear and how that a crime of violence requires not just an intent to use force but an intent to use force against the person of another the council you say that this is an open issue in this circuit but how do you  required to sustain a conviction under section two hundred and forty three dollars c two and other words whether that provision requires the use of violence physical force cologne or ella does make a passing reference that the provision requires a conviction under the statute is in fact a crime of violence for purposes of a sensing advancement of the guidelines so are you suggesting that this panel can parse through the prior panels presidential decision and come to a different result yes because that that decision is not precedential as to this issue this was merely a question that worked in the rocker heard before the cologne or l a court but it was not presented to the court it wasn't litigated and it was not decided and therefore this particular issue the mens rea issue does remain an open issue that this panel can decide oh in your brief you argued that the court should not follow  there had been intervening supreme court decisions i think specifically it was mathis that you were referencing then in reply it appeared that you conceded that mathis really didn't change the state of the law and you posed an interesting question can the court consider an intervening supreme court decision something that is clearly era's reconcile with its prior decision if the prior panel in correctly applied the categorical test so i don't understand why that argument is not foreclosed by our president the says we're bound by the decisions of a prior three judge panel unless we take the issue on bond well i think that there's there's two separate issues here and the st is that there is no binding decision from the th circuit on this particular issue but i do think that there's an alternative argument which is the argument  which is that when you do have an intervening supreme court case even if it's not setting forth a new rule or a new mode of analysis that that can sort of reopen the issue and allow a subsequent panel to re examine a prior th circuit case that's not what happened in robinson robinson the court came to a different conclusion than the panel and lawrence and it was based on matheson decant because in those two supreme court cases the court provided additional guidance on whether a crime is divisible or indivisible and how that effects the categorical approach so that is different from what has occurred here where you have not argued that mathis did anything to change the analysis under the categorical approach rather you're simply arguing that the prior panel applied it incorrectly and we should follow it i do believe that the math this court provides clarification of approach it doesn't set forth any new role but mathes is one of the very decisions the robinson court looked at to reexamine it but it was examining that in light of whether the statute addition was to visible or invisible isn't that correct that is correct and that is not an issue here is it no it's not nevertheless we do believe that the fact that mathis is an intervening supreme court decision that incorrectly decided that it didn't address this issue that you find to be critical to the determination of whether the statute is a crime of violence into the categorical approach and it held that it is so we would have to reach the opposite conclusion by applying a different analysis why are we not foreclosed from doing that unless we take this case on buck i think as the supreme court has recognized and webster versus paul the fact that a question merely worked in the record of a prior case does not mean that that prior cases binding precedent of that particular question i haven't cited the webster versus fall case in any of my briefing and i can submit a twenty j letter with us i taishan but that's that is really the issue here is that cologne or eola did not necessarily address the men issue that we are raising now it did say and passing reference that the provision requires the willful use of force but it did not go on to make the finding that it requires the willful use of force against the person of another which is three d battery resulting in serious bodily injury present also does not address the mens rea the issue that we are raising here but pres like cologne area also concludes that the statute at issue is in fact a crime of violence for the guidelines analysis that is correct and both of those cases analyze the elements of the underlying offenses and the intent in the force necessary for a conviction under those cases correct both of those prevail cases excuse me are are primarily aimed at examining the the amount of force required to sustain a conviction the litigants in those cases were arguing as mr white had it in his  considered and rejected several of the arguments that you make in your briefs here and found that the argument that an offensive touching her slightest touching could result in a conviction under the statutes i think they called it  hypothetical and extremely remote and noted that there were no convictions on the california case law on that basis so again how do you reconcile pres with your argument here today we do believe that her as is binding as to the  issue that we raise the actus reus issue and while we believe that that issue is appropriate for consideration the nd issue that we have identified related to mens rea it was not litigated in the case and it does remain an open issue in this court and your honor i have about forty five nd seconds left and i'd like to keep that for about oh of course i think you are from the government good morning my name is quinn kalter i'm here on behalf of the united states may please the court cologne ariel is still the law and the district court was bound to follow it to intervene in binding circuit precedent the intervening case must undercut the theory or reasoning of the prior circuit opinion such that it is clearly irreconcilable to be clearly irreconcilable means that the approach is fundamentally inconsistent with the reasoning of earlier circuit authority and here even appellant concedes that mathis is not a new rule it is not new law it is not  fundamentally inconsistent it is dealing with issues of divisibility and indivisibility and here that's not at issue so there is no intervening authority to overrule or undermine clone ariel and this decision has previously been made and the court is bound by  it similarly as the court addressed with not only did this court recently accept the holding in cologne ariel it expanded it and found that this analysis is still appropriate necessary and it's only necessary as to the battery as to the st element under the black letter law there is no intent element the courts have held that the defendant has had the intentional use of force in no more and intent to injure isn't required as the appellant i think is arguing here so there really is no issue as to the mens rail that's not how it's enforce it's not enforced a battery isn't negligent or careless conduct it's intentional willful force upon the victim and next to right next to the officer in the context of the defendant trying to get away he was handcuffed at the time and is trying to resist going into the building and so he's kicking at the officers and kicks forcefully enough that determine what caused the injury well and seem to support the idea that and direct injuries fell within the statute and the injury element of that statute is injury was inflicted it's passive and so they didn't really need to determine the extent to how the injury was caused what's required is that the defendant inten the battery and then an injury result and that's how we know what level of force was used in the battery we know it's violent force because of the injury that happens to the same person the battery occurred upon was recall correctly decided in two thousand and six and it's a california court of appeals decision so if i'm correct on the date then it was decided long before  your consideration should be that cologne ariel is binding and that these cases existed before cologne aerial and to the extent they were useful in this analysis they could be used by the clone aerial the panel but miller versus gammy requires that there has to be something intervening case of last authority in order to intervene in cologne area law as binding precedent so here he's doesn't matter if there are no further questions i'll cede my time here the government argues that all that is required for a crime of violence is the intentional use of force but that is the very argument that the leo court rejected it's not near and tend to use force as the intentional use of force against the person of another intent and looked violent for worse against another person when we look at the california court of appeals cases  looking both at two hundred and forty three dollars c as well as two hundred and forty three dollars d that is not required and the hayes court is a prime example of that in that case the defendant did argue that he didn't have there was insufficient evidence that he had the appropriate mens rea and the california court of appeals made abundantly clear that it did not matter whether he honestly believed that his conduct would not result in a battery so we do believe that there is a california court of appeals case