morning good morning your honor snape is the court my name is melissa salinas and i'm with the university of michigan law school i have the privilege of introducing john moseley and kevin cam who will present today's argument i'm kevin will present the opening argument for court my name is kevin kim on behalf of the defendant lewis bill this court should vacate mr bell sentence i remain for re sentencing for two reasons one mr bell's two thousand and seven conviction under and seal seven fifty point eight two is no your honor so if he's right you would then add three points for manslaughter other words when the mr bell's attorney last prior attorney at re sentencing said i agree with the p s r i have no objections t s r i want this has been very clever because the p s r didn't put the three points down for manslaughter so judge silos question is if you go back and you recalculate you're likely to get the three points you could end up with a higher sentencing range and a higher sentence so that's that's what he's saying yester southerners and that is a possibility but if that were actually to happen because men would be getting a third chance of actually fixing there in the original p the revised yes or the government did not object in either one so ok if that's the if that's mr bell's position that the government can't change its position then it seems to me mr bell should be stuck with that rule because this was not a situation where those attorney who did a very good job first time got the case re man to cut the sentence dramatically he agreed with the p s r and he agreed with it's not just for failing to make an argument it's affirmatively agreeing this is the right thing to do that's more than forfeiture that's usually thought of as a form of waiver as to that issue so would be very strange to say the government is stuck but not mr bell i mean it would seem to me the threshold question for you is how is it possible that you're allowed to object to the p s r in this when you agreed to it and lo and behold the lawyer was being very smart to agree to it it gave bell better situation than he could if he had a right to ask for yes your honor but in this direction it's still mr bell's direct appeal you should be able to raise that issue the government also claims that you had a waiver here because it was not raised in the first appeal here that is correct your honor that is the government's position but bill is still within his direct appeal of his conviction and his sentence you have a good case it says you can bring up issues on the second time around no your honor we did not johnson is directly applicable to this case i think i think you're right about johnson's application to some things but at a minimum i mean let's just say for seconds not waiver because if it's waiver that's the end of the story let's just call it forfeiture which gives you some arguments to make and that means you then have to show plain air and if it's a crime of violence case yes it's true you can say there  some to facts given johnson but i don't think those the johnny johnson has anything to say about the manslaughter conviction and since manslaughter is mentioned in the commentary as a quintessential crime of violence and if we're you why wouldn't someone say well gosh i mean there's not a plane there's nothing there's nothing plainer seriously wrong with this sentence in fact it's probably better than he deserved because in spite of the johnson problem and it's a fact and what the judge did the manslaughter conviction easily fills that gap at least for plain air purposes because you're under the text of a two k two point one is not only mandatory but absolutely unambiguous it states that you can only use a predicate felonies that receive criminal history points that word received is does not include is eligible to receive or can receive it means receive and in the situation mr bell did not receive any criminal history points to the cases that say that's what received means even by the way in a situation where the defendant benefited from not getting the three points i mean it's a very funny argument but one of the cases that make it that clear yes your honor fortunately there are no cases directly on point to that issue but the word received is an ambiguous if the legislature wanted to include is eligible to receive or can receive it would have included that instead it just included the word received which means that a predicate felony that actually received criminal history points and not that was eligible why not again i'm back in plain air land why not say for plain air purposes a proper calculation it would have receded so there no fundamental anxiety about a just sentence here because in a proper world particularly if the argument i've been raised below is it should have been the district court judge would've said oh yeah the manslaughter does get three points perceived problem solved yes judge in that respect i would again be giving the government the benefit of being able to correct their while leaving mr bill into the dust and being able to give the government a third bite at the apple because they did not object to predicate felonies one conviction for narcotics and two his two thousand seven conviction under and seal seven fifty point eight two so during that point even if mr bell had raised the issue of the of his manslaughter conviction counting as a crime of violence the point would have been moot because all the statute requires at least two predicate felonies and mr bell at the time had three so even if you had mentioned that the nine hundred eighty eight manslaughter conviction was iranian slee classified as a crime of violence the point would have been i'm struggling with the the night the information that's in the record we have a p s r that lists the seventeen as opposed to an adult conviction or at least were not the record doesn't indicate to me have you make that determination so i'm struggling with how one can apply a categor analysis or make a determination whether a crime committed age seventeen is an adult crime without knowing the particular provision under which this this individual was convicted it seems to me that that's necessary to to apply decamp and shepherd oh what is you how is it that you chose what was the you mentioned statutory references to prior convictions for flying and the same thing is true for the assault with a deadly weapon conviction how is it that you have selected the statutory predicate for they at if there's nothing in the record that indicates that so your honor with reference to the assault with a dangerous weapon i looked at mr bell's record and found the specific statute that he was sentenced under some fifty point eight to is so the question for me is doesn't the p s r have to provide that information or the court have to reference that information so that there can be adequate review our fower case is you've got to tell us is written by a branch of the government so it is incumbent upon the government to include those statutes inside the p s r and if they don't and if the court doesn't address them and if the categorical approach is nowhere applied i mean this is not your fault this is a question of what's happening below and i think perhaps it's not in a terribly unusual way or but by the court and by the p s r but it is in fact a very problematic error under our case law so the so yes yes so what happened here is it does not distort her question once but then the response of question is that's what's so important about plain air and in this case not just the failure to object but the affirmative decision to say we're good with the p s r with or without statutory citations with or without giving three points to the manslaughter conviction which it turns out was a pretty smart thing not to object to it was very beneficial so the the problems in the record are problems created by it seems to me a wise strategic decision because cleaning it up would have made things worse for your client so it's true we don't have information that you would normally expect to see but there are some actually reasons for that and it turns out the reasons actually help about now this earlier on or so this is still why wouldn't clarification on the  bill and help bill sentence but if you look at it in the other direction actually hurts bill sentence as well especially in the context of this appeal because if mr bell's nine hundred eighty eight manslaughter conviction is seen as a predicate often  consequences of your winning straight he already was charged with having crimes of violence you're making the point that if we treat the manslaughter as a crime of violence and if we if we do that alone you say it's moot because it has no effect on the sands but if we do that plus correct the p s r and put that three points you know as a higher range so it's not the same it's worse no your honor so we're arguing that mr hundred eighty eight manslaughter conviction should not be a crime of violence because it did not receive criminal history points and in conjunction with his two thousand and seven can correct if we send it back for the sentencing you get the three points put in because everyone knows that that was a mistake but the text of the statute is clear and we believe that this court should follow the text of the statue and only classify crimes of violence as those predicate felonies that have received criminal history points and mr bell's felony did not receive ok thank you very much from yesterday morning marchers team for the united states i think your honor sir have keyed in on one of them the principal key issues of this case and that is you really never need to get to the question of whether the assault with a dangerous weapon constitutes a crime of violence because of this issue of the manslaughter other independent issues if he has two crimes of violence predicates or drug trafficking crimes he counts  a twenty four offense level and the manslaughter would count as judge sutton and should seiler have noted even if this case were to be reminded of the court certainly would be able to correct its error which it was an error not to count the manslaughter conviction as with three points raised by the u s and that no one that's in were not cross appealing but this is a question that the defense has raised and of course the court can recognize as the court's in wise and battle in the times and fourth circuits recognize that really defend its aren't entitled to what i would i would call this sort of compound error theory where they're entitled because of one error by the district court to capitalize on that throughout the rest of the of the sentencing and say well the court has to stick with that error that it made throughout specially when they never raised to below and then never raised it or raise it only on appeal to like this same calculation here don't going to be sure coming in fact it was revised after the first appeal there was a revised pre sentence report that was issued to adjust for the fact that mr bell was no longer considered to be in our current criminal under the  sees if anything needs to be changed based on the change in the posture of the case and gives the court of lies pre sentence report which the parties are given in advance of sentencing and given an opportunity to review mr bell's attorney when alan who argue the appeal the first time around and then handled the sentencing the second time around acknowledged at sentencing that they had received that revised pre sentence report and as judge sutton pointed out i think made the very wise decision not to challenges or raises because he recognized and the answer that really goes back to the first appeal in that first appeal mr allen filed a brief in which he did challenge this manslaughter conviction as a qualifying predicate for their per criminal act so that i can i handle the first appeal as well and when i saw mr allen's brief i sent him some additional discovery that it turned out he had not received from mr bell's trial counsel that additional discovery included the conviction documents for the manslaughter conviction which showed that in fact it was a conviction under the michigan state statute rather than common law manslaughter seven fifty point three two nine at that point mr allen made the choice to withdraw his challenge the manslaughter conviction as a qualifying predicate and focus instead only on the ohio drug trafficking conviction so there are there was there were conviction documents that show the nature of this conviction but it still please me with the same question we've got fowler a fairly recently and other cases that talk about needing the type of record that this court can reveal and yet where we sit on occasion on a fairly regular and p s r or other documents that come to us without the specifications that appears to me would be necessary to accurately do a categorical approach can you address that is that is your position that we just go back and we get those documents in presume the us and everybody's on the same page but us because we haven't gotten the information what is the what procedure are you proposing for us when the one there when the record does not contain the necessary information let me clarify that the court is not been provided with these documents for a couple reasons one because you never objected to this below and so it's pretty standard course that when the parties want to prior convictions in the court of appeals for the first time those conviction documents could be provided to the court of appeal so that you could make that determination recognise that it's a question of time but it's your birth if it's not in the documents and it comes up to us it's your burden that's lacking it seems to me so that's i think what we're struggling with is just the practicality of having get this done and avoid this sort of thing i understand but i think part of the answer is as i think judge and i think we're suggesting is this is you know plain error of you and in fact it's really waiver because the defendants had multiple opportunities to challenge the nature of this conviction in fact doesn't even challenge it in this appeal they are not jalen have never challenged that manslaughter would in fact qualify as a crime of violence based on the nature of the offense or the conviction itself they've only wonder your burden have waived any challenge to it also because there were no points well i don't i don't know going to give and you didn't complying are you in the same position we're not saying that it should receive points that were not this wise saying we didn't cross appeal and say that the district court erred and should have applied a higher guideline range and therefore maybe should have given a higher sentence but this is in response to their argument that it didn't shouldn't qualified as a crime of violence what's your answer to the argument they are making about manslaughter which is the received language in the guidelines well i think again the the wise and battle cases address that issue that it's it was error under the guidelines themselves for the district court to not apply those three points they're not entitled to then transmit that error to another consideration which is whether it's a crime of violence with by the way they have said repeatedly that this court should be stuck with the p s r and live only within the p s r well the p s r found that this was a crime of violence that included that it said that  error if the premise is that it didn't get the three points it should have therefore you can't call it a crime of violence send it back to do it right and when you do it right you of course get the three points and now you can call the crime of violence and it will be worse for mr bell well yeah that's without even getting into the worst part but it would affect this point and just to the more general point i think that when the guidelines are speaking of receive they're referring to sort of their own internal self contained several rules that assume that they're going to be properly applied throughout when they say so and says should receive points under section four b one point one one point two they're saying you know it's i think it's soon that the guidelines are going to be applied correctly and so that when you say does something receive points you looking it's a definitional reference does it receive points under those other sections and yes it should the gallants are assuming that a district court is going to err on applying them and therefore by operation of the guidelines themselves it should have received three points and therefore would qualify as a crime  so if this court were to find that the manslaughter conviction was properly counted as a crime of violence then there really is no other issue as far as whether m sentencing guideline range was properly calculated based on an offense level of twenty four the second issue that the mr bell has raised albeit in his  reply brief only is that and the subsequent twenty eight j submissions to the court is that an assault with a dangerous weapon under michigan law does not qualify as a crime of violence under johnson  twenty fifteen or johnson twenty ten and there's two different johnson cases i would submit to the court that this court his has indicated in the read a mendez case from two thousand and twelve that the michigan assault with a dangerous weapon statute would qualify as a crime of violence in that case the the court was looking at a new mexico aggravated assault statute that had the unusual language of allowing an assault under new mexico law to occur with a by means of insulting language and that's really what hinged was the hinge of that case in which the court found that that statute was not did not qualify as a great assaults under the enumerated offenses in the guidelines or under the use of force elements clause but in looking at how the court came to that conclusion the court very clearly said that the new mexico statute differs from aggravated assault under the guidelines and to two ways one the mens rea are required to not require a specific intent to injure or frighten whereas in the michigan statute in the sing as this court recognized and seeing versus holder would require either one of those specific intents either intent to injure or intent to frighten somebody the imminent battery or harm is this coming the other way that the court distinguished the new mexico statute from the sort of model pinnacle general generic definition of aggravated assault is that the underlying assault be committed by using insulting language and the court very clearly said you know if if the if the new mexico statute required at least the least touching is the phrase that the court used and that was accompanied with the dangerous weapon that that would qualify or may qualify as violent force under johnson two thousand and ten and i would note that the new mexico battery statute heads going to that same type of language  michigan battery offense has of unlawful intentional touching by application of force to another when done in a rude or in somewhat matter kind of offensive touching and the the panel in ready mendez said if assault statute and assault with a dangerous weapon statute requires assault which are which at least requires some kind of touching or is the corpse that in that case physical force in the more general sense a company with a dangerous weapon a violent force under johnson two thousand and ten and that's the reasoning that was echoed in the window case from the first circuit last year which really had basically exactly this issue that that the defendants have tried to raise in their briefing today saying where the massachusetts statute could be convicted could be violated and assault with a dangerous weapon statue could be violated by  attempting to threaten a battery or attempting or threatening a battery in an under massachusetts law battery could also be convicted or committed by harmful or offensive touching and so the defense argument in there and the wind up in case is that because you could commit assault by attempted or threatening offensive touching that assault with a dangerous weapon therefore would not qualify under johnson two thousand  the court soundly rejected that reasoning noting that the that really sort of overlooked the dangerous weapon element and that added an element to the offense and that logically the harm threatened by use of a dangerous weapon and was more than offensive touching that's the approach that the court should take with respect to the michigan statute which is really almost identical to the massachusetts statute and i think consistent with this court's reasoning in the reading mendez case i would note also that the supreme court itself in johnson two thousand and ten cited two when it was discussing what what violent felony or violent force means cited to black's law dictionary which in and in fact quoted black dictionary that cited assault and battery with a dangerous weapon as sort of a stereotypical architect type of coal example of a violent felony or violent force so we're looking at the assault with a dangerous weapon there's there's sort of two ways that the court can look at it two ways that it would qualify as a crime of violence one is whether it's an enumerated offense under the guidelines in the under the aggravated assault rubric or whether the ball flies under the use of force i've spent some time talking about the use of force but i would note that this court's decision in the united states versus cooper which was just which was looking at the tennessee statutes and use the modified kerrick oracle approach but in doing that determined that the defendant had been convicted of assault using or displaying a deadly weapon in tennessee assault could include intentional contact that a person would regard extremely offensive or provocative and the court nevertheless found that the dangerous weapon and component of that made it the equivalent of aggravated assault thank you so mr loosely this appeal would not have been brought and as a result every party should be stuck with the waiver that they were with but for the chance an issue so because it gets rid of their waiver but not you hear is very good you're going to be good judicial discretion in the favor of judicial khana me with regards to bringing in the manslaughter conviction not proceeding criminal history points pursuant to the application no twelve to k two point one part what you're seeking is to have this remain for consideration of that crime about and so if the court considers that it can be considered though as presented report right no judge siler then we're asking for limited free man because of the issues raised in johnson because johnson is a substitute for rule and the supreme court has to clear its retroactive mr bell seeking relief trying to attack one of the underlying predicate offenses to solve the dangerous weapon under michigan law and as a result this brings in the issue of the underlying manslaughter conviction as well but what's your answer to the plain air point that you know even if we accept your received argument that was a gift and there's no plane air here there's no air at all because if you do it correctly manslaughter would have gotten three points even under your argument that would have allowed it to count as a crime of violence because you acknowledge it otherwise is a crime of violence and so the johnson bears disappear we're playing our world which means you have to show an error and there's not even an error and in deed there's a benefit by counsel quite cleverly accepting the p s r who has to carry that burden if in this case the answer is really clear we have to mean it's really obvious how this works government has the burden to prepare the p s r say it's rush the p s r probation what to do at that point it's incumbent on the defended to decide what they want to litigate and what they choose not to litigate falls and plan i mean that's about as established a criminal law principles there is yes j but in this case the government did not correct its air of having the manslaughter conviction not receive criminal history points and the court in the ministering because it was told that the defendant was going to accept the p s r it which by the way  clued in treating this is a crime of violence and if that's true then the government and the defendant together can contravene the statutory language of the sentencing guidelines great point except it's not a great point if when you figure out what the right answer would have been it still doesn't amount to an error except in the sense that he got a lower guideline range than he deserved so the only contravening that happened here was one that benefited your client and there's challenge is doing well this time around good lawyers not to not to challenge that the fact he didn't receive any points and that's just a good strategy but ultimately the government  get that point scored and the language of the application of twelve is incredibly clear it says receipt and as you can see the plane air applies to the manslaughter issue we do not concede the player must apply the manslaughter charge one effective assistance of counsel after cleverly agreeing to a lower guideline range i cannot personally say what might be brought in the future i see my time has concluded it may briefly absolutely because of johnson the assault with a dangerous weapon conviction under michigan law cannot fall under either a new murray defense or under the fourth clause because it's just simply a mere touching and because the manslaughter convention contravene the clear language of application no twelve which says perceived and there was no language in either wise or battle out of circuit as to how they arrived at that statutory interpretation the only thing was  guidelines for a one to one aim for one b there is no reason for this court's reach that same result thank you thanks to all three of you for your own arguments thank you miss salinas for bringing these young lawyers here mr kim and mr lucy you guys did a great job in the chess team you don't need our compliments but as expected and you did you can job so well but thank you for joining us and i think mr bell was lucky to have such good advocates so thank you for your good work cases submitted the clerk may call the next