all persons having any manner or form of business before the honorable united states court of appeals for the fourth circuit i had managed to try my hand get their attention for the court is now setting that say the united states and this honorable court for purposes of the arm career criminal act townsend criminal negligence they listed a bunch assault cases i think they didn't hold to that they made that observation and it looked like they were just listing all the assault cases focusing on the assault in a later case they did then i understand that i'm just discounting joe that he's not holding number one and number two it's just a listing of all the assault cases they could think of because they were focusing on the assault salt in north carolina can be committed with criminal negligence other than that jones what do you have i think this court's decision united states versus vinson dealt with a very similar matter there the court observed that simple assault any assault under north carolina law requires proof that the i'll read it again but that case doesn't help you i can tell you that they have not construed intent to kill to be anything less than intent hill i believe i mean there are a couple of portions in that decision i mean first of all i would refer you to the other than your view in this same question sort of what jones whoa re set that aside for second we understand your argument do you have a north carolina case that holds the proposition that holds that i  don't think there has been a dispute where that has been the central holding in north carolina john and i know you put the word central in front of it you have a case in north carolina that holds the proposition that intent to kill  something other than intent to you i don't think your honor that that's required under this analysis you may know him and you may not think that but still i'm asked you to answer my question and then if you have one you can tell us and if you don't you can say i don't have one it had nothing to do with the holding wasn't necessary for the holding in this court so that if there are not the courts constrained by the reasoning in a the highest court of a state opinion and that even if that reasoning might be over identifying joan holding and i think we've pointed out that it's questionable in fact i think contra indicated that it is in fact a holding and a since you don't appear to have a case squarely on point what is your rationale for arguing that intent to kill does not necessarily require a comparable state of mind it was i think it flows from this court's decision in vincent vincent you know briefly repeat the court noted that serving north carolina law cases jury instructions that any form of assault under north carolina law requires intent on the part of the defendant and then the court went out to note that although that seems to answer the question that you know recklessness or last would not be able to satisfy the requisites for assault conviction it continued on to say that after looking in crediting state versus jones in particular it appeared that culpable negligence actually could so that the intel report may could be satisfied either through an actual intent to inflict that serious injury for culpable negligence in which that intent derived so again that is consistent with the proposition that they culpable negligence is you may is in completely exclusive from intent to kill in t n culpable negligence is that she's in north carolina you think that is completely mutually exclusive with intent i think so i mean that's how the court in jones has described it or the court in jones and other decisions has described it intent can be inferred from culpable negligence that's how north carolina law puts it and so i think that because the but i mean i'm just i'm just thinking about that for a bit if intent can be inferred from that then do you have a showing of intent under north carolina law you do and that's all that's important  dispositive even if it were a holding which it isn't to the extent that there's any clarification at all i'm just it certainly made pretty clear in grimsby is it  argument based on the assault with a deadly weapon inflicting serious injury of a government even if the court is not convinced that assault with a deadly weapon with intent to kill inflicting serious injury is not a violent felony or the government still has not met its burden to prove  preponderance of the evidence that townsend actually was convicted of that fence and not the lesser offense of assault with a deadly weapon inflicting serious injury which lacks that intent to kill element can we take into account the corrected judgment in this here we simply don't know enough about the purportedly corrected judgment to know that its reliability is unimpeachable or the government hasn't said anything about the circumstances surrounding how to change that correction the process you know that period we just look at that record isn't that now the record in north carolina whatever state it was is not the record i don't i can't answer the question your honor because i simply don't know from the government let me know that it's for it isn't the term exceeding regime can you look at that judgement to determine which statute is imply and going back to the going back to the structured sentencing point that that was pretty much the underpinning of simmons wasn't it that you look at the north carolina structure sent and because it is in excess of a year in fact you don't even need the admitted judgment you can look at the record and tell based on the sentence that if there is any inconsistency it has to be you saw not a problem as a jump on it and by the pre sentence report that it was a qualifying offense that it was intent to kill and that was found in the pre sentence report and that's a fact in the case and it was never challenged right was never challenged pre s because of the inclusion of the capital b which looks clearly like a scrivener's error but if it is ambiguous it was a fact finding by the pre sentence report which was never challenged it was never a challenge before  challenge based on johnson to to his sentence and i would submit that the challenge to be a mystery my whole point i'm not talking about whether he raised a point i'm talking about whether he challenged whether he was convicted of intent to kill and according to the pre sentence report says he was convicted of intent to kill yes that's right in the end and that that pre sentence report is a fact finding that is a step versus the facts in the sentencing court unless challenged dispositive that's what act for purposes of the armed career criminal act lists the statute as that punishing assault with a deadly weapon inflicting serious injury and the supreme court has been clear that the labels that are ascribed to particular offenses have no relevance court is sure the sentence is inconsistent with the position that you're looking at a judgment sheet that has four indicators about the sentence one of which says thirty two capital and all the others of which refer consistently to intent to kill by a violation now you're telling me that it was an error it was a plane error or some kind of error for somebody to include actually that that represents a conviction or intent you know that's what your honor i think under you know i mean it's versus span provides the answer me a case in the why on this reading this judgment sheet because there are material in consistencies meaning inconsistency that go to the very of i don't believe so your honor under the law is it because the it's not an indisputable fact on the record before this court there are no guarantees what's disputed now the reliability of the correction you don't think the state made the correction you think the attorneys made this up no no your honor absolutely not but we don't know the circumstances towns are only in circumstances they amended the judgment now is that it is the document authentic you challenge in the authenticity of the document no your honor i'm questioning with the process for securing disputed well we don't know if the weather station record of the weather right that day i think your argument is there is no judicial notice cannot be because everything can be challenged and i don't believe  you it can absolutely it can't that's what the statute said on that day somebody goes your honor we challenge it because we're telling you we think they made a mistake right and congress made a mistake putting that word in you challenge it it may not be a successful challenge but it's challenge under your theory the point is here this is now a state record it's a state record why can't we take judicial notice of the state record but i think because of the the amendment pro handwritten note the handwritten signal jule amendment process is no different than the original process somebody writes down a number what can you say your honor we challenge memory quire in this case and what the judge would you could still you could stand here and go we challenge it because we believe the current was occupied preoccupied on something nails and she wrote down the wrong number that you could challenge judicial notice you can always challenge it that way that's what you do want this but do you challenge it this is the state record no i challenge that it be we don't know anything about the the validity of the process but i just think there should be no no i'm asking you what you need what how do you correct what you see what you see is the problem how do you address it is more information about how the collection was why is it's well it's presented to the court and you are aware of it it's not expired to tell it before the court what do you point to to challenge here you're not saying you're not suggesting any deficiency but you've raised it is a problem in response to the fact that you have raised is a problem the government proffers an amended judgement which seems to address it yes your hon honor your honor i would argue that jones does not create a new rule of north carolina precedent as this court has characterized the jones decision recently in brain the language that's being pointed to is simply  was about an intent at assault that does not involvement tend to kill and assault with a deadly weapon inflicting serious injury and the only mention of intent to kill or an intent to kill offense of curse twice in the case the first is this court noted a moment ago is where the court is discussing the fact that north carolina assaults are generally can be committed with culpable criminal negligence in a string cites a bunch of assaulting looting an intent to kill assault and two cases both of those cases  ball inflicting serious injury and no specific intent the second time intent to kill shows up in the jones decision is a cite the north carolina terry opinion which is talking about an assault with a deadly weapon intent to kill and it's referenced as  fence which would qualify as a predicate in that case for the felony murder rule in contrast to that brief dicta and the string cited jones we see multiple north carolina supreme court decisions both before one at the same time the grigsby case the same years jones and the toronto case after were to the north carolina supreme or has consistently included as a specific intent element the intent to kill importantly we also see that in practice carolina pattern jury instructions and the north carolina courts of appeal reviewing jury instructions after jones of all required an intent to kill and north carolina courts happen slide defenses to that ends which are predicated on a specific intent specifically north carolina ports allow voluntary intoxication defenses to the intent to kill offense because it attacks that specific tent which it wouldn't other ports wouldn't otherwise allow if this were a general intent crime like the inflicting serious injury taken as a whole north carolina law requires a specific intent to kill for this particular offense that intent to kill is inconsistent with the  him and this court has in even since johnson looked to not just one element of the offense but all of the elements in determining whether or not a crime is a violent felony in two thousand and sixteen although one published case i would argue that the reasoning is is valid and should be applied here in the smith the situation this court looked at north carolina secret assault and whether or not it was a violent felony and this court determined that north carolina secret salt which had as an element an intent to kill only require a culpable criminal negligence this court looked at all of the elements can it possibly be there for some reason we have been mandated over the last i guess certainly twelve fifteen years we have to now on of this approach we have to look at every decision in the state and decide if there's any judge in this dated in the level that thinks there it indicates not one hundred percent clearly that this is a qualifying crime we've moved beyond that and we now have to inquire in the minds of the are no offense but the lowest paid person in the clerk's office is that what this approach is moved us to know your honor the quote i mean there appears to be the argument on the other side i'm not saying it's invalid under this construct are up one think the contra doesn't particularly make a lot of sense in the real world i think neymar said it right so the person on the street goes he was convicted of of intent assault with a deadly weapon with intent to kill but not a violent crime of that it required a force people would say what the heck are you talking about understand we have now taken the concept and moved it kind of stretched beyond our limits but this won't sound the progression that we're now trying to inquire into the mind perhaps and as this court has noted above today and in the past there is a way to stretch that analysis beyond commonsense and beyond reason the defendant takes the argument here looking at the deck to enjoy and stretches beyond what north carolina courts require i think not just the public on the street but north carolina prosecutors be surprised to learn that they're not required to prove an attempt to kill when prosecuting someone from assault felony assault that has annoyed about one why do you think we can't take judicial notice of the changed record here i think the court can and it was presented to be said but also why do you think we can harm your honor i think because judgments of other ports or records of other por type of records that this court has in the past taken judicial notice of along with the twenty eight year letter of the government side of the case in which the court did just that looking at north carolina judgment no just tell me why because a state record it's on the books in north carolina  for and i think that's exactly the analysis sadly i think north carolina still does use microfilms but if you go to the north carolina no wrong with that and you pull out the microfilm the question is what is the judgment and this is i didn't say microfilm i said micro fish the transcript of only the original one correct no no no no no that would all corroborate it might be an independent basis to find the result you want but i'm just asking why why sure argument that it's not a north tower record is that now the amended record isn't that the record in that this door cole legal record in north carolina that is the judgment of a court and when this court looks to see what the judgment of the court is the amended judgment that's in effect every thing that serves to judicial notice is also subject to the same challenge we just think that the person who wrote in a on was drunk at work that day i'm not saying this park was but drunk at work that way or he was thinking about how was he going to pay years when he was preoccupied i think that concept destroys the whole principle of judicial notice i agree your honor and we can see that this court has taken judicial notice of these types of records before so clearly  standard this court so simple so is it necessary to get to that point i don't think this court has to simply because i think taken as a whole the record establishes that there was no error on the part of the district court the judgment that was presented in the district or discovery to be sure that the process was regular your honor i don't think there's anything that could be done to the other than verify the record as accurate and authentic which is not being challenge here today if the question is is this the record th had looked at those records and so i think that's perfectly acceptable for this court today and of course when we look at the rest of the record as you noted there are certainly sufficient evidence of not numerous things the corporate book to determine that that if it wasn't intent to kill because this court can find that the intent to kill offense is violent felony this court need not reach the second question which is whether or not the uplifting serious injury question the inflicting serious injury offense is itself a violent felony murder rule and there as an example it says a case where the defender was committed of assault of a deadly weapon with intent to kill but no so the facts show that the defendant intentionally committed that offense news of the modifier intentionally would be redundant if specific intent to kill the was making a side comment about assaults generally and list of this and the list of assaults that it catalogs so to speak but it was not dealing with an intent to kill case back case before it the other cases and and north carolina have referred to this crime this offense has a specific intent crime yes your honor but the those cases have not questioned or brought up the jones statement that i hold and they don't need to bring it up their address when you get the crime before the court and their address in the elements of the crime and then you also have the which we often go to we go to the jury instructions given in cases authorised jury instructions there is just simply no doubt that this is a specific intent crime and a single case that is addressing the assault notion that in north carolina you can assault with a range of conduct and then it lists all the types of assaults is an unwitting inclusion i mean especially in light of this background noise from not always these background holden's of north carolina crime of first degree murder might be premised on a defense implied intent to kill or commit the underlying of that so right there the court is expressively contemplating that intent to kill can be implied and that's exactly the argument here that's the argument that's consistent with the early reports in negligence can satisfy the intent or it was now what do we do with all the rest of the cases from north carolina that contradict your argument but i think the same thing that this court didn't vince in there that there were pattern jury instructions your honor mentioned saying that intent w other cases other when north carolina addresses the specific crime it addresses that as a specific intent crime and we just have to ignore those under your argument no i think you read jones into saying that that specific in follow i mean i was trying to follow along with your current struct of what could be determined by implication yes you're right i think those three passages are consistent with