sentence was unlawful this court cannot allow the decision to stand as a section twenty two five petitioner in this case dillard had the burden of proving that johnson invalidated his sentence to meet that burden he needed to show that his prior tennessee aggravated assault convictions only qualified as violent felonies under the residual clause was that the burden at the time that the proceedings were going on in the district court yes your honor is always been the burden for twenty to five petitioners to prove their claims now no obviously but you just said that he had to prove that his sentence was based only on the residual part was that the case under our presidents at the time that this was going on in the district court i want the answer that question i believe would be yes the court clarified this in potter which was a case subsequent to  proceedings in that issue court but potter said all it was doing was simply applying well established law saying that a petitioner has to meet their burden and to prove a violation of to prove that somebody sentence has in fact been invalidated by johnson you have to prove that the sentence rested on a violent felony they qualified in the residual cause if it rested on the violent felony that qualified under one of the other clauses then there is no johnson violation but do you agree that if he shows that none of the other clauses apply then he would yes if a defendant can show that his prior conviction was a conviction that only qualified or there's a draw as it didn't qualify under the moderates didn't that say there's no residual clause because practically there is if the defendant shows that the aggravated assault does not fit as judge white just said in any of the other three  defendant when it's correct yes if he if he meets his burden of showing that it doesn't fall under the elements cause or the numerator offense cause he would he would win the defendant didn't do that in this case and i can't he didn't do that because he didn't provide any evidence to indicate that he was in fact that his aggravated assault convictions in fact involve violations the statutes that don't qualify under the use of force clause but he there's nothing shows that he was within the heart of the statute that do involve floors respectfully disagree your honor the documents in this case do show that his convictions involve variance the qualify the lying on the indictment yes we're relying on the indictment and the tennessee rules regarding how lesser included offenses may be charged and convicted but this was a guilty plea it was two different defense it was a guilty plea to a lesser included offense of the offense charged in the end in this court has looked to indictments charging more serious offenses when a defendant pleads guilty to a lesser included offense to variant of the lesser included offense was necessarily involved in the conviction and the reason the court has done that is because under the standard rules you can't plead guilty or be convicted of an offense that is not included in the indictment well there are all sorts of reasons for those rules on lesser included offenses a lot of them have to do with know what is due process the right of specifically addressing that precise factual situation there is the state he rushed case which we've discussed in our brief which points out that under due process principles and accused can only be convicted of an offense that is charged in the indictment or lesser it right because that to due process  a notice issue to the defendant when you talking about the prosecutor in defendant the green the defendant can agree to plead guilty to anything as long as the prosecutor except even if it were possible in this case for mr diller to have pled guilty to a variant of aggravated assault that was not a lesser included variant of the charge defenses in this indictment he would still have to prove that that's actually what happened in this case and he's offered no evidence whatsoever to meet that burden his burden under twenty five show is more likely than not that his sentence was in fact based on the residual clause he hasn't provided any evidence to show that his sentence was in fact more likely than not based on the residual c there the evidence that we do have in the record the initial charging documents indicate that the only possible variants of aggravated assault that he would typically have been convicted of are variance the count under the use of force it's what we don't do that i mean the supreme court told us we don't do that we look at the offense and unless there's a separate document telling us the decision relatively recent decision the alexander case then involve the situation where defendant had been charged with ohio rape and he pleaded guilty to a lesser included offense of gross sexual imposition and the key question in that case was what variant of the gross sexual imposition offense did he plead guilty to the court looked at the raping me and said well because he was charged with this variant of rape he could only have been convicted of this guilty to a lesser type of burglary and the court sentencing for purposes of determining crime of violence and handsome and said well the facts of his original charge indicate that in this particular case it welling was actually involved even though under the burglar statute it wasn't possible that he was convicted of burglarizing the dwelling in this court appropriately said no when you have that said you can't go to the indictment to identify facts that were never inherent in denver like  conviction no other circuit has said that when you have an indictment that charges him or serious offense and then indictment can be useful to identify the variant of the lesser included offense that the defendant was necessarily convicted of but you then can't go look at the indictment courts do that all the time the court did that now the ninth circuit did it in that the case that we saw in our brief case and all the situation worse defend it was charged with possessing with intent to distribute a certain drug to wit methamphetamine in the  he pleaded guilty to a lesser offense of possession of a drop in the court said look when we're trying to figure out what a lesser offense he was convicted of we have to look at the defense that he was charged with because he couldn't have been convicted of the lesser included offense of possessing any other drug only possessing methamphetamine would have been a lesser included offense of possessing with intent to distribute them to this is a process the court's been given routinely again we're not asking the court to look at the indictment to identify what this defendant actually did all we're trying to do is figure out what variant of aggravated assault did he actually plead guilty to and when there's absolutely did it what point based on the way the law has developed since this guy was before the district court on his first one hundred fifty five at what point to who have the opportunity and understand the need to try to come up with shepherd documents that might actually demonstrate exactly what you're saying well he understood the need from the outset if you actually look the shepherd documents in this case were provided by him if when this was in the district court had not been decided the district court came out the same way harper would have  had come out a week before he did and you've read that so at the time he had a very good reason i think that if it was a crime only of recklessness then it would not involve use of force against the person of another so no he would not know that he had to show it was something well i think that landscape has changed quite significantly between  he could argue in the just court agreed that all of these five none were a crime of violence and he could make a statutory interpretive argument now he's stuck with having to just say well it was number four number five and he didn't know he'd he'd have to make that argument when he was in the district where we are i think i think he would know that he had to make that argument and let our position is that you know it was enough as interpreted by for we makes it very clear that this is what the the c c a has always many people could quite strongly disagree i certainly understand that there is college and i know that there is reasonable disagree and harper by the way is pending the court called for response so we may see what  the supreme court thinks of it and i certainly don't miss me here is it seems to me from having reviewed this case that i don't know whether there is anything qualifies as a separate document that might actually help this guy but i'm not sure i think he's ever really had the opportunity to try to make that case so why when we just want to say we don't really want to be more severe than we have to be here why wouldn't we say let's send this back and let him produce a shepherd documents and then if it turns out to be exactly as you say he loses the court could send it back and when a producer brags i would i would point out there is a possibility of sheppard documents that could be produced in this case of if there is a plea transcript here the plea transcript would show what variant of would likely do it would have him have the up to do that because he already had the opportunity to present those documents and didn't do so  not an opportunity based on anything that was clearly the why in this circuit that if this i mean that it certainly would be possible for this court to remand with instructions for the court to follow the law as it currently stands and to allow the defendant the opportunity to present a separate documents but i think the court should make clear that if that's the case defendant is still the one who has the burden of proving his claim and or twenty to fifty five you know i don't have any problem with that and i would probably you're saying that's what the law is i just think that it's kind of i have a struggle with the idea of a guy being able to actually carry his burden when he didn't know what the substance of that burden was at the time you're in a home and just briefly respond to that point i think the defendant here is actually the person who is in the best position to know what variant of aggravated assault he was actually convicted of at the time and so if  he was you know pretty clear that like hey i was convicted of one these for fourth or fifth variance clearly don't count i mean he would have every incentive to go and find that evidence at the time of this initial sentencing but the initial twenty five percent the reality is that he probably wasn't convicted of any particular beriah right do we have the judgment of sentance we have the judgment the judgment indicates he was convicted of aggravated assault that's right doesn't identify which specific rape so he probably wasn't convicted of any particular variant he had to be convicted of a specific variant of the offense the question is whether the documents show that i don't know that he had to be convicted of a particular very end he probably had to provide a factual basis for some very and but that doesn't mean that the conviction would specified the very end or that he was just i'm saying the judge may have made a finding or something but i mean the judge could have also that i find that that's enough to satisfy aggravated assault i mean without any particular finding but i mean you're saying he has to show that he was actually convicted of one of the two variants that don't qualify that's correct or in opposition is because he didn't do that in this case the judge made it a short should be affirmed if the court wants to give him an hour an opportunity to try and circuit alexander simply clarifies how you actually look at these the shepherd documents we believe the shepherd duckett's themselves disprove the possibility that he was actually convicted of a fourth or fifth variant and we think that for that reason  good morning your honor smart davis for mr dillard mit police the court tennessee's rule of criminal procedure eleven which governs guilty pleas allows a defendant to plead to a lesser or related it's the government's reliance on alexander is misplaced because that was an ohio conviction and ohio's rule eleven does not have any of the related often it's language it only permits guilty colloquy in which the defendant explicitly pled guilty to the lesser included offense it's referred to more than once that he is pleading to a lesser included offense so that necessarily related back to charge number one of his indictment which his guilty plea was to a lesser included offense of that charge this court has been the government asserts that our standard of proof on the twenty two fifty five the preponderance of the evidence should be interpreted to require us to prove that absolutely positively he was only convicted only enhance using residual loss that that was the only thing making his predicate offens qualifying offense at the time and it's suggested both by the government and by potter it that this is an absolute doubtless standard and if that is true then the government must bring absolute doubtless proof that a defendant committed acquitted conduct in order to use it to enhance a sentence at sentencing because both sentencing procedures and twenty to fifty five use  of the evidence standard and it's called the standard because it's the same and so if we're applying a heightened requirement in the twenty to fifty five context the johnson twenty two fifty five contents then that needs to be applied to all proceedings within the remaining definitions over here i think what it does though your honor yes or no would you agree with that i mean if you show that these crimes don't fit within the lawful definitions of crime of violence un is that right that is partly right partly right because it's not just the only possible off fences are those that don't qualify because they were only under the clause because it's that more likely than not standard so it's possible that it was a regular use of force offense but it's more likely that it was under the residual clause it's more likely  and so you're saying the standard is that it's more likely that the sentence was under the residual clause then under the the force of the elements yes and it's a close standard i've you know you've heard the sort of the fifty one percent versus forty nine percent it's not this all or nothing proposition why is it more likely in this case that it was the residual than the element in this case there is because you don't get to that point because of the lack of shepherd documents as your honor pointed out that you know many times at least in the judgement and mr dillard's case it just says aggravated assault it does not say what subsection of that statute and so you can't make a judgment and when you can't make a judgement then you know under the stromberg principle when you have some options in the under the umbrella of possible options that are unconstitutional then the defendant basically wins that it's a possibility it was unconstitutional among a selection of options that we cannot tell which apply to the defense and some of the cases said is that the underlying question of whether the sentence was legal but i mean i could understand if you had a situation where they were the state of the law was such that we kind of knew all of the math is stuff that we've learned and the residuals clause was still in doubt that you would have a very strong argument i think when the judge is looking at the elements clauses and it's kind of unclear provisions that of the statute that may or may not contain the words that in that situation it's more likely than not that the judge just relied on the residual clause because it was clearly covered and an easy call but i'm not sure you know that it applies in a situation where the judge probably wasn't going through a map this analysis because there wasn't one i mean i'm trying to find out why you're saying it's more likely than not that this judge applied the residual clause i should probably walk back as opposed to wrongly applying the elements clause i think probably more accurately it's that more likely than not that he could prevail  his claim and so because if you create a situation where at the time mr dillard was originally sentenced courts had a love affair with the residual when in doubt residual was your good you know if you could put an eye out doing it it's residual clause crime of violence or violent felony so what we had in mr diller's cases they didn't need to go and look you know they just said oh it's aggravated assault that sounds violent you know we don't know we don't have in the record we don't have it in the sheppard documents what portion of the statute was used to make his crime a predicate offense and so without that documentation and impossible but you're taking a situation where it's not clear that what sheppard documents are available say aggravated assault some portion of the statute and what we know is this some portion of the statutes explicitly not a violent felony because it involves somebody else doing something or it's a misdemeanor type of assault elevated to a felony because of the repetitious of it that you could shove somebody there's also that back in the early one nine hundred eighty s do you why x it car accident causing injury you know that's an aggravated assault they weren't parking out which section of the statute it was  just that's an aggravated assault and so here with mr dillard's able to show the court i'm sorry are you talking about what was happening in tennessee at the time or what was happening in the district courts in tennessee at the time with m miller's original convictions one of the ways the tennessee aggravated assault statute was applied was that if you had a dui with an injury like you had an accident you were do you why somebody  isn't the question before us what the what the sentencing judge did in this case what the court relied on in this case yes and what the sentencing court we can't prove beyond any question that it was to do interpret this sentence from potter because i'm struggling with what you're telling nor does johnson open the door for prisoners to file successive collateral attacks any time in the sentencing court may have relied on the residual clause i think that is where we get into sort of a dangerous expansion or a dangerous tightening of the standards for preponderance of the ad is that surely doesn't sound like the circuit in potter was saying it's only a preponderance question no it does not it sounds like they're applying a higher standard than that and that is concerning that's you know my this court i think in part  just heard on bank argument and williams that you know what is the standard how are we going to treat this type of twenty to fifty five where it's not was this is turning at the time of trial in effect of giving ineffective assistance based on the standards at that time it's we're looking at what a sentencing court did years and years before sometimes years and years before the  statute was ruled on portions of the statute ruled unconstitutional so there was no reason for the court to look beyond the fact of conviction there was no reason for a defendant or the government to say this is  specific subsection of the statute and so for mr dillard it was enough that he's been convicted of aggravated assault these two times one nine hundred eighty three for nine hundred eighty three and under the one nine hundred eighty five person statute and him he based on that based on the lack of indication of which subsection if any subsection of that statute would fall under the residual quads that makes it unconstitutional standard more likely than the mean may is not mazes may is not a bad standard but that's not the standard that potter you know but why do you think that we get in a standard may well i understand but are you saying that more likely than not is too high a standard i think as it's being applied in potter and packet it's more than more likely than not right so i think packet is a little bit more clear than potter on this that there's not an acknowledgment of what really preponderance of the evidence means that they say preponderance of the evidence and then they're talking about absolutely must prove that this is the way that the sentencing court view the statute that you must prove much so that that's the portion that you were  based soley on the residual costs to prove that he must show that it is more likely than not that his prior conviction counted only under the residual clause doesn't impose a more significant burden and neither does  not sentenced under the residual clause i mean if space it's ok so but if you're if it's an element clause case and you're looking at the definition that existed at the time and you know it's not your traditional or it's your traditional aggravated assault plus and there are no separate documents you really don't know why wouldn't you just go with the residual cause in your mind you know it's the judge you know it's like yeah it's an aggravated assault that's the dangerous i think the question here is did mr dillard show to his aggravated assault only cough when you have a statute where there are five pieces and three of them tell him there's no documents whatsoever in the record but you indicate that now you're changing it you want him have you want him to show affirmatively that he was under arrest i think it's letters or poor but you want him to show that affirmatively that something very different from what you said before he already has to do is show that it's more likely than not that he was sentenced under the residual process and then you look at all the circumstances then a judge based with a situation where it's unclear whether a statute puts in the elements clause and for one reason because the judge doesn't have separate documents we disagree on the sheppard document i'll make that clear  that you don't look at every well it could be committed you look at the mainstream way it is committed that that's what i would have done answer question i said we're not changing the argument that we've made our our position is that what the defendant has to prove in the petitioner and twenty five has to prove is that his sentence was unlawful under jobs and to prove that he has to show that is his ark or criminal classification was based on the residual clause so what's the way they ended by more likely than not so if you have a situation where he has an aggravated assault conviction and he cannot show that is more likely than not that  that aggravated assault conviction qualified in the residual clause he has not met his burden and that's exactly what happened in this case he has an aggravated assault conviction there is no evidence in the record whatsoever to suggest that it is more likely than not that that aggravated assault conviction was for a variant of the fence that qualifies of the residual cause the evidence in the record by contrast suggests that it is more like the not that he qualified as one of the three variants that does count under the use of force cause and is not affected by johnson well that's strange because i mean i presume he was sentenced before it was seen right he was he was also sentence before that time reckless offenses in this circuit as in just about every other circuit were not crimes of violence that this is not true just at the time he was sentenced sight like a mile long in harper to that end and certainly in our circuit that was the law of reckless recklessness mens rea as to the injury to the person was not enough that was the law post two thousand and six this court's decision imports hello in preety thousand and six there were several cases from this court saying that reckless tennessee aggravated assault counted under the use of force clause in those were the law at the time that mr dillard was sentenced in this case so i just wanted to clarify the record on that point that's helpful you know before it was seen in after whatever case it was where we said recklessness is not enough there would be every reason to think that a conviction exactly like the one here would have been only brought in under the procedural clause is that fair   rather than you know the way everybody else did before was seen i think the point is we shouldn't be assuming like what was in the head of that is your court the question is in the burden is on the defendant in this case the petitioner to show that his enhanced sentence was necessarily based on the residual cost because if it wasn't then it's not unlawful if he isn't provided any evidence to do that because he hasn't proven his claim though just i just want to