united states versus holland and mr milling when you're ready we'll hear from district court judge giles determined that criminal domestic violence in the second degree in south carolina is a grade a by a life and based upon that determined that fifty one to sixty three months was the appropriate sentence if in fact she had determined that it was not in fact a grade a violation because it was not a crime of violence as looking at it in the categorical approach it would have been a great the violation which would have dramatically reduced unlawful to call most physical form or injury to a person's household member or to offer or to attempt to cause physical harm or injury to a person's household member with the parent present ability under the circumstances reasonably creating fear or immin so it's going to have to be blindingly obvious eric to consider that this is categorically a crime of violence and in light of three unpublished opinions and i know there are published but they're fully reasoned saying that it is in fact categor of violence how do we get clean air i think if we look instead of focusing on those three cases we look at the published opinions of tourism a gale and also the recent case of middleton which i think john actually participated in which look at instead of just focusing on it looking at the statute in and determine whether or not the crime of prohibited criminalize is the calls or the effect and in this case if we look at the first provision under sixteen twenty five twenty the city statute to calls physical home or injury to a person's household member now that is the causal or the effect of something something that must have happened  between family members and if we look at how that could be done any number of ways and torres mchale plainly said we if we are if the the statute itself focuses on the result of the injury is not enough without some sort of forcible conduct giving rise to it the same rationale applied  in the middleton case where this court found that south carolina's version of involved voluntary manslaughter was not categorically violent because the focus of the statute was not the force required but rather it was instead the result that the resulting death that occurred and today in a context of revocation why aren't we looking at the defendant's actual conda if we in seventy one point one does prescribe that we look at the conduct but the defendant did rather than the elements of the crime well i think that we've got to look at both because there's also a difference in the commentary under four b that you look at for b one point two to determine what a crime of violence is and i it allows the court the district court to be able to set to revoke a sentence without the need for indict without the need for an actual conviction right because it does that all the time and to regular sentencing courts allowed to consider conduct that hasn't even been charged hasn't been convicted absolutely why are we now in engaging in the academic exercise of categorical approach when the court knows or has a basic factual basis for what the defendant did in this case because i think that the court has to i think that's the way that we can read both seventy one point one which requires that we look at the conduct of the defendant but also looking at the commentary in the application notes requiring us to look back at forty one point two k and now  if you agreed that you're arguing against the weight of authority in the other circuits the second third seventh circuit so i'll say it's the actual conduct well i think that this court in united states versus reed  logical to look at what somebody did because you're looking at the you know you got the supreme court has said we have said that the revocation raises an issue of the violation of the trust that the court places an  pendent absolutely and so why isn't it more logical to look at the actual conduct rather than to start engaging in this side much more remote concept of what constitutes or may constitute a crime of violence generally without regard to this i think that we have to look at both i think that certainly the court under seventy one point one requires us to look at what a actually did and it doesn't require conviction it doesn't even require indictment at that stage but if you look at what somebody did and evaluate whether or not what they did rises to the level of a crime of violence based upon how a state has interpreted the alleged offense then it allows a protection because otherwise we've got situations where such as this the defendant may go to court on a revocation in the state court cases actually dismiss she may see it at that particular point in time and so when you're looking at situations where somebody can be arrested without a probably cause determination it's very important to determine looking  weighted in analyzing those cases as to whether or not it is in fact a crime of violence whether or not the appropriate level of force because otherwise if there is no force required in the statute itself that's when we drop back to being a the categorical approach one of the difficulties is you have to look at the ordinary offense you have to imagine some fence and as judge here and says in this case we don't have to do that we have the actual offense before us so we can look at the facts of that but let's set that aside in the castleman case the supreme court was addressed but addressing domestic violence or this is the use of a gun connection the misdemeanor crime of domestic violence and the court said domestic violence is not merely a type of violence it is a term of art encompassing acts that one might not characterize as violent in the non domestic context and then goes on to explain that in the domestic violence area you have the accumulation of offense and you have the power relationship between the husband wife and so forth and so that categorically domestic violence is different from violence under the normal analysis would that enlighten this at all well especially in view of the fact i wonder plane air and we also have t in connection to domestic violence offenses and how we see here that i don't see that middleton has any bearing on the well and i think if we look at the domestic violence situation and if we look at the practical realities in state court where these types of charges often arise the situations can be very volatile and law enforcement is called upon to determine which of the two aggressors but sometimes both may actually be the one who gets arrested in that case obviously there are situations where an individual may be the only aggressor in the victim may have played no role whatsoever but here we have a we have the defendant convicted of domestic violence right he wasn't convicted the charge rightly dismissed after this offense but judge childs in evaluating the evidence of the case it was charged not she he was charged not she she came forward as a supreme court recognised that they said indeed most physical assaults committed against women and men by intimates are relatively minor and consist of pushing grabbing shoving slapping and hitting and then it goes on to explain why even these minor physical aspects are violent in the domestic relations context and so that it says while they may not satisfy the general definitions of violence as used court to to use it to evaluate whether or not in south carolina's version this particular statute criminalizes the resulting injuries or criminalizes the use of force and whether or not it is the use of force which is actually sufficient to give rise to a crime of violence under the approach the and that john as if we look at the actual senate seeing in the justification that the court provides judge childs does not address or evaluate or discuss the thirty five fifty three yet a at factors in evaluating and determining whether or not he should be sentenced to the fifty one months sixty three months or something below that something outside of the gavel actually said it was a general statement but she i thought she concluded by saying i've considered all the sentencing factors and she a now recollection is that she address that my client needs on some sort of help with substance abuse that he needs anger management based upon the own conduct in the facts that she found at the court or at at the hearing it please the court ever mcmillan on behalf of the united states for america the district court cannot commit plane air in this case because the district court followed this court's opinion in the chisholm decision in determining that south carolina criminal domestic violence to the contrary under those facts it cannot be error especially in light of the fact there was no objection during the revocation hearing it cannot be an error for the district court to conclude that the criminal vested violence that was before her is different than the the sentencing context that's why the conduct does matter in the revocation context because the conduct is before the revoking court whereas it would not be before a senate the categorical putsch may apply additionally domestic violence is different south on the case law recognizes that under south on a case law that was sudden are brief it incorporates a different type of of violence then say a simple assault or that type of that nature crime that was recognized in the counseling case and because of that it just further bolsters the the judge's decision that it was appropriate in this case the district court adequately considered all of the relevant thirty five fifty three a factors and that's made apparent by her decision to believe on pages about seventy five for seventy nine of the join appendix there's a description by the judge of everything that she heard during the hearing and she heard of course the facts of the criminal domestic violence second that was committed she heard all the facts of another instance of domestic violence third degree that was committed and she pointed out various factors related to the defendant such as the fact that he had a criminal history category of sids which in and of itself says a lot about the defendant identified the goblin range the statutory maximum noted that she had considered all of the relevant factors and all of this in reaching a sentence that was within the guidelines and within are under the statutory max it just believe that in the absence of any authority to the contrary that it's clear in this case that on a plane air or a view as there was that there were absolutely no objections raised to either the grade or the senate's at the  cation hearing that the defense simply can't prevail against that standard of review i'm glad to answer any questions the panel house  thank you and may it please the court while i recognize that councilman identifies domestic violence situations as being different i would respectfully submit that we still have to go through an analysis to determine whether or not south carolina's version of this statute is categorically similar to what kassim that invasion or whether or not it should be interpreted differently whether or not the focus own the causation of injury is sufficient or whether or not it is categorically by and if we look at state versus left which one of the cases that i cited in the brief situation and  the the facts in that case or so that the husband and wife her mother and her stepfather were arguing she interjected herself in the only offensive touching the only force that has been described was that he pushed her we have no indication no description of anything as to exactly what what the what the harm was and pushing is not going to be forcible account the fact that castle and said the type of violence in a domestic context often involves just pushing shopping slapping and does not need to meet the standard of violence and the other contact that's correct carolina is interpreted it should not be interpreted as a crime of violence and that based upon how to a child evaluate the situation look at their beauty there's a picture in here one minute what's his wife in here black you is is that evidence of the conduct in this case i believe that's actually evidence of the crime or domestic violence in the third degree case which is a misdemeanor so it but in that when she got a black guy right yes very young no i think that's the one that gave rise to the club great see violation right so both of the charges were dismissed the victim in the case came forward and denied th