good morning ladies and gentlemen welcome to the th circuit we're very pleased to be with you today judge smith and i would especially like to welcome our colleague judge michael malloy from the th circuit we want to thank him for his continued service to the united states  service to this court thank you we have three matters on the oral argument calendar that were ordered submitted on the brace that's united states versus canterbury united states versus bosh and right versus look grand we have three matters on the oral argument calendar which we will take in the order in which they appear st case is united states versus walker they want us here on behalf of stephen walker i would like to reserve two minutes please camps and matthews are on in big us a sentencing judge may not make factual findings in the st instance to increase a statutory maximum the court was clear that the reason why courts can consider the fact of a prior conviction is because the elements of that conviction are necessarily established beyond a reasonable doubt but the analysis is different when we're looking at whether three different convictions were committed on three different occasions that analysis is not limited necessarily to the fact of a prior conviction specifically a sentencing judge will need to look to non element facts such as the when where how an offense was committed and by definition the sentencing judge is making factual findings in the st instance that would increase both the statutory maximum and a mandatory minimum the judgments that the that the district court relied two thousand and fourteen well we we know they're depleted because my client has three prior convictions this court has never relied on simply abstracts of judgment st of all and the fact of the date of a conviction  of when the offense occurred dates of conviction occurred all different times depending on how long the proceedings occurred we have no idea based on those documents when the actual offense was supposed to transpire whether the incidents occurred at the end of july end of december st the beginning of january st if they even are nineteen million eighty one thousand nine hundred and nine those are not elements and as they camps tells us we have a th amendment issue if we're not looking at elements because we there is no legal significance to those facts there's no incentive to challenge them and a jury has not necessarily found them beyond a reasonable doubt which means they can be downright ok you're not you're not really going to fight the one in two thousand and fourteen are you i think that that less interesting discussion we still have the same issue that we do not know when the when the and so you want to you want to go you want to go back to district court and convene a jury and then have a jury look at what your honor i believe jeopardy has attached the elements are found during the trial phase of the proceeding and st of all there was no notice because the issue of whether these convictions true were occurred on three separate occasions was not even in the indictment and at the change of plea hearing the defendant specifically did not admit any of the prior convictions let alone that they were committed on three different occasions and the government specifically was asked whether it objected it said it didn't jeopardy attached this court does not remain and based on insufficient evidence for failure to prove an evident failure to prove an element jeopardy is attached this court must remand to so that the mr walker can be sentenced based on elements that were established during the trial phase which is a statutory maximum of ten years this court we can look at i didn't  i mean it's it's not it's sort of it's not a controversial proposition that we do not open up sufficiency of the evidence after the trial face is completed and i would cite two united states v norbi and i can provide the citation the twenty eight dollars j letter that's specifically looking at in a prime day air where the court in that case the district court sentenced the individual above the statutory maximum based on the fact that the different approach to this it seems to me that if i look at a prend the any fact that increases the penalty of the crime beyond the prescribe statutory minimum must be submitted to the jury and proved beyond a reasonable doubt other than the fact of the prior conviction right that's correct i just one second so if you agree with me of that then i look at torres doesn't torres say that and forty four dollars where it says the fact of a prior conviction includes the date of the conviction when the face of the document demonstrating the prior the defendant's prior conviction includes the address the fact of the prior conviction exception it absolutely does you're on it it says when we said fact of a prior conviction we meant what crime with what elements the individual is convicted i really don't i really don't think you're right because justice thomas wanted that to be said and it wasn't said it was it was i'm quoting from mathis well i'm back home the fact of the prior conviction is what elements with with what crime with what elements the individual was convicted  and the court says it sensing judge can do you agree or do you agree with me that math of three affirm that the judge may find the fact of the prior conviction absolutely and if in fact results says that the fact of the prior if i don't if i miss paso just to just to make sure i understand your argument i have lived laid out for you how it is that i could rely on sale if i cannot find in math class that argument finished no your honor i think day camps very clearly all but guy camps again says other than the fact of a prior conviction and specifically says that any non elemental fact cannot be relied on to good morning your honor isn't it please the court ross peers and the united states believe judge smith's question hit it right on the head it's that this court has decided this issue in brazil and ever since the supreme court has st set forth the rule and that the fact that prior conviction is not an element that needs to be submitted to the jury it's been very careful to reaffirm that principle did so and decamp and it did so in mathis and chris l's reasoning is based on the theory that the fact of prior conviction necessarily comes with some collateral findings such as the date on which the defendant was convicted and who the what the where and the when but reaffirming that principle the supreme court was careful to say that it was an upset in every circuit has consistently held that a court may look at this common nucleus of facts that come with the fact of prior conviction and i just want to point out that on issue two it's really a much more narrow issue then walker tries to present it  within that if these at the very least the fact of prior conviction must allow the court to look at the year of conviction to determine that these offenses occurred on different occasions so the court doesn't have to go into the n of when crimes are a spree of crimes a spree of violent crimes or occur closely in time and whether they're close really related whether there are different victims the question before this court in this case is whether three convictions in three different years for three violent felonies are sufficient for a district court to find that they occurred on different occasions and every court that's addressed this issue has said it has cited in the twenty eight jail letter united states versus hennessey that even post matheson post to camps the th circuit has also said that this doctrine remains viable and i just wanted to briefly address ms sasso his argument and her opposition twenty eight dollars j letter that chief judge cole in his dissent in the  circuit case has the better argument even under chief judge calls dissent this case would come out the same because at page four hundred and fifty four dollars of his dissent he says that it's only an issue of a court having a look at the underlying facts of a prior conviction where the conviction occurs in a spree on the same day so in hennessy it was a defendant who committed two separate violent felonies in close proximity chief judge call specifically says if you had an instance where a defendant committed three violent felonies and three different years you want to have this issue so even under the dissent in tennessee our position is strongest and no other court has accepted this  you in your brief as i understand it concede that this is state normal review yes doesn't make a difference that this issue was a raise of the trial court because as i understand this issue was not raised before the trial judge wright the defendant at before the trial court did argue that the court find that these offenses occurred on different ok ok i'm sorry and he argued that as a legal matter he didn't factually say that he hadn't committed these offenses on different if the panel doesn't have any questions i'll just start finish where i started that this court's already decided this issue it's already decided the st issue and it should affirm thank you thank you thank you m the government's approach is doing exactly what the campus they camp said a judge cannot do which is scour the record to look for non elemental facts which there's not much scarring going on so all we have to do is look at the date that are not elements  st of all we don't know whether there was a spree here because we've got ninety eight and ninety nine that kind of date of the year the date of the police's fourteen months apart that that yes but that's irrelevant to we have no idea when these actual events occurred they could have occurred december st january st we don't know we also it's not an element so that could be downright wrong as the camp said we are cannot rely on facts that have not been tested by a jury and just discourse it reminded us just last her only a jury can and acting on proof beyond a reasonable doubt to a private individual of our liberty that is a promise the jury trial guarantee that we hold as i understand the court disagrees with me but both mathison the camps so very clearly without reservation or cannot rely on an elemental facts that is exactly what grisel did and the hennessy court the cases that it cite not a single one of them addressed the specific issue they simply look to whether a court can rely on shepherd documents p s r police report out that's noncontroversial the issue here is whether a judge can rely on a non elemental fact to take walker is submitted