i want to welcome everybody thank you valerie for calling us to order we wish of course that we could be with you in person in montgomery but we appreciate you being willing to handle and argue your case as telephon colleague judge billy ray william we call him billy ray who is a district court judge in the northern district of georgia before that judge read a was a member of the joint accord and court of appeals he was also in the state's appear court in georgia and before that was a member of the georgia state senate so he has had a very distinguished public service career and just right we welcome you we thank you for sitting with us and for helping us with our work  right so to our lawyers i think most of you have been here before just a few preliminary instructions you have a limited time before us today so we would ask that you dispense with pleasantries and factual recitations and procedural history and just proceed directly to the merits of your points and specifically the points that you think are most salient ordinarily if we were in person we would have a lighting system of course we don't have a lighting system telephonically that valerie who  called court order this morning will give you a two minute warning when your time is set to expire and we would simply ask you i'm not going to cut you off mid sentence but that when the noun when it is announced that your time has expired let you wrap it up  and ten to sixty seven dollars united states of america versus joshua dudley's and my understanding is that we have this case here for mr dudley and mr krishna here for the united states so ms case only on shepherd approved sources this court's precedents from united states versus need is clear that quote only shepherd approved sources and be used to determine if prior senses were committed on different occasions a well established line of cases flow from that two thousand and ten me decision in the just two weeks ago united states versus carter this court publish an opinion certainly take your point about sneed but what do you do with the government's argument from what i'll call the weeks line of cases for lack of a better way of describing it it seems like there's some tension between the weeks line and snead case need line of the weeks line into play in that circumstance yeah i think it's because the leaks case and actually the carter case two or distinguishable all in th shepherd approved source which is the charging document which had a date and so just even off applying how shepherd defines what shepherd approved sources are and  different occasions i guess i guess i take your point that but you know shepherd you say narrows the class of documents that are that are sort of fair game you know sort of making a sentencing determination but is it shepherd itself animated by th amendment concerns and i guess my question is if all men are as torres you know sort of creates this silly generous exception to the the a pretty a lot of cases assess for for the fact of conviction we just sort of bark worried about the six minute for better or worse we're just not worried about it and then the week seems to say that the date is part of the fact if you will of conviction why does the th amendment and the shepherd ever come into play why do we ever start talking about shepherd well i think that when a court is later going to apply the aca enhancement and if there's been an objection then a pretty clearly comes into play because you're changing the statutory range increasing the fencing exposure for the defendant and there is a fine line of factual finding that a federal  should later be doing and and so that's why i think th amendment and you know need and that line of cases develops you know out underlie those convictions i think that the th amendment concerns recognized and shepherd adopted by the need to talk about you don't want to need conclusive quote as contained in town and it's referring back to counts in those indictments that do not include anything more than what is charged in those indictments i think like any and when it does that results from a guilty plea mr dudley has a method to the facts necessary for that conviction but but what what's so key here is that aca does not require three prior convictions it requires three prior convictions that occurred on separate occasions and that occurred on separate e all about that is it has to be a distinct criminal episode yeah i think there are cases that talk about it could be you know three different things that happen at different locations which is why this course is sometimes but that location but another thing that makes it so i certainly understand how locations could be different let me give you a hypothetical if the if the corrections officer had gone into the cell and had been assaulted by the defendant and then they had gotten control of the situation and then before he left the cell there was another assault because the defendant was able to about you know we'll say it's within fifteen minutes if the if the officer goes into the cell for example to to check on the defendant and get some salted and then other officers come into the cell which would typically happen and they get control   close call but i think that that that is still something that all that information are separate occasions but still in our quarter opinion that you reference we were able to look at the and die moments and sort through the facts behind those indictment s to see what makes sense as far as determining if there were separate offenses and don't you have that problem here or simply by virtue of just by want to example of the two assaults on officer dandy and because if if these didn't happen and if these work separate offenses wooden wouldn't these have violated the double jeopardy calls me are we entitled to look at the facts underlying the way where it is an on going i mean his idea that a defendant must expressly agree to non elemental facts and a factual basis before they can be used that proposal is a solution to a problem that simply doesn't exist unlike the violent felony inquiry the different occasions inquiry is intended to take account of non elemental facts the plain text of the different occasions cause us much it instruct courts to look at whether violent felonies or serious drug offenses have been committed on occasion different from one another as mathis instructs when congress tells courts to look at how or when an committed it is telling courts to go beyond the element and to consider the particular circumstances of the defendant's conduct and in fact they count and map to this they reject the very idea that argument because they reject this idea that a defendant failure to object to a non elemental fact is somehow categorically different from an express agreement in the world sort of a th amendment problem in using a date or finding a date with respect to the different occasions clause because the date of an offense is entered girl it's simply part of the factual nature of the prior permissible documents the indictment the plea agreement and any you know sort of recitation in the plea colloquy confirmed by the defendant i don't think you'll dispute that sheppard says confirmed or assented to several times promise to she says need we said no uncertain terms there is no daylight no difference between the scope of the permissible evidence that can be used to determine if the prior convictions are violent felonies or if they were committed on different occasions so it basically takes shepard previously applied to divine design a felony question and applies it to the different occasions in question and conclusion therefore because there was no express assent or confirmation here you can't use the unconfirmed colloquy here why doesn't that work the conclusion doesn't follow your honor we agree one hundred percent that we recognize that we have to limit ourselves to shepherd documents shephard offers of an example the factual basis contained in a transcript of a plea colloquy and that's exactly what we have here wait wait wait wait wait that might fall out of pleated case and compare them on the one hand to the document that can be used and tried case and on the other hand this wider evidentiary cast that the government was arguing for that would have included police reports and other sorts of things that in shepherds of you ended up with they lacked the conclusive finality and there weren't conclusive records made in a guilt and so when sheppard talks about the confirmation that a defendant provides that conformation is the guilty plea itself because it is the guilty plea that is the equivalent of the jur verdict of guilty sheppard says that the factual basis is the closest analog to a jury instruction now when a jury renders verdict of guilty it never has to my when i was time at the indictment i'm just meant in a hypothetical case in any case where if mr dudley had gone to trial and his indictment did have to eight the jury would have never confirmed those dates simply by finding him guilty that was my point but shepherd does they that rule levon the factual basis and rule eleven that counts as a shopper document and rule eleven says nothing about whether a district court or whether a court accepting a plea needs to ask the defendant whether the factual basis is accurate it can do so but it isn't required to do so in fact rule leaven that the the court only need determine whether there's a factual basis before entering judgment so it can actually accept a guilty plea and then determine whether there is a factual basis and i think it's also i think this aspect of treating the confirmation as simply the plea of guilty that becomes clearer if we read sheppard and line with and take comp and math because each of these cases the court is looking at the same fundamental question which is whether the defendant the conviction under a non generic burglary statute amounted to a conviction for generic burglary and in and sheppard there are several times where the court refers to factual findings assented to by the defendant or a factual finding that is ado by the defendant and taken in isolation that certainly sounds exactly like what mr dudley is suggesting that he needs to agree to some sort of a fact in order for it to be used for his and handle it but they comp  expressively that if the defendant agrees to a fact that's irrelevant if that fact isn't tethered to an element and so the confirmation that sheppard is talking about always has to be a confirmation of the element which is to say it is the guilty plea itself and especially in this context where shepard is adamant that there's nothing in the a c c a there's no basis to treat tried cases and pleaded cases differently by the same token there is no basis and certainly nothing to sort of create this artificial division in pleated cases between those cases where the court happens to ask the defendant for the about the accuracy of the factual basis or those cases where the court obtained the factual basis through another means when both are perfectly legitimate of securing a guilty plea instead what the what confirmation means is simply the guilty plea and that is exactly what we have here and in fact even if we were to adopt dudley's views of the record or enough the law and what confirmation really means we would still meet those tests because in this case the prosecutor recited to date the ask the defense counsel is that correct the defense counsel agreed that those two dates were correct the district court then asked for further clarification asked for a time sequence the prosecutor read the further three dates and then there was no objection at any point and mr dudley pleaded guilty well i don't like i mean it it sounds there that you've got confirmation as to maybe not we can infer that the two dates listed implies that the rd is a date that is separate from the other two and macleod which is very similar to what we have here the court that accepted the plea asked the prosecutor for facts about the the crimes that issue the prosecutor identified a factual basis which provided one location and mcleod took the view that that at most indicated that there were two separate offenses because the identification of one location implies that the other two offenses took place at least one other location so here we  the question i have is related to that could the district court judge have excepted evidence on when these events actually occurred in other words could could he have required the government to bring for some evidence other than just through the colloquy when the when the three different events occurred not outside of the universe of shopper documents like we couldn't put on witnesses or find the case agent and the original state of cases in order to prove a case we would be a limited to the indictment or the please call  them because so clearly the state trial judge would not have been concerned about the issue we're concerned about and that's right that's right but at the same time i think i think the fact that there is such a variety here i mean the i mean st of all in terms of the issue that mathis identifies in terms of the end sent to us for giving or incentives for a defendant to object or not object i mean here we have a district court that was concerned about the time sequence of the prosecutor answer that question there's no reason to presume that answer wasn't fault or certainly on a preponderance by the evidence standard and and again there really is no rule that requires courts accepting pleas to ask the defendant whether the factual basis correct that's something they have the option to do but they aren't required to do it and it would be highly it would create a great deal of this uniformity if the ability to enhance somebody based on the a c c a is going to be would have thought that the whole reason that we have in jeopardy if you read the three cases together that the reason that shepard articulate this what i call express confirmation requirement is because because of what the cour defendant expressly agreed that he had committed this generic burglary and he was convicted under a statute that didn't require a breaking and entering element of burglary but he admitted that in the course of his colloquy as the prosecutor is rattling off dates which are not relevant elements of the conviction why would he raised his hand sure well i guess my  st point would be to camp skepticism comes from the standpoint of looking at whether something has been proven beyond a reasonable doubt and so it's perfectly consistent on the one facts might not matter so much that the defendant might be silent there is room for there's room for inaccuracy and that's why we don't think that this has been proven beyond a reasonable doubt but that doesn't mean that we've failed to provide a preponderance of evidence and in this case as judge branch pointed out he actually would have had a powerful incentive to challenge some of the dates because he was convicted of  occasions arose out of a separate and distinct criminal episode and here i think it was the court's considering whether one victim was mentioned in two  equally likely that it's not enough other point i wanted to make is i think that the question is that the defendant's lawyer said that's correct when i after the state court a ten year sentence where he's actually going to have a probation hearing like in a month and a half where he would just get out and we're dealing with a you know an individual who is not much education and standing in court with lawyers and judges and knows that he has already signed a plea agreement that did not include any extra facts and that the case is going to be resolved if you know he just as yes i want to plead guilty to how i was charged and so to speculate whether he had motivation to do something or not i think is just getting into this great area of