government's motion in women e prohibiting the defendant from bob arguing justification defense of self defense in relation to his charge of being a felon in possession of a firearm the to classify him as an armed career criminal offender in regards to the first issue on appeal mr hawksworth argues that he satisfied the four elements for the submission of a self defense instruction to set forth if united states versus nia solano the evidence presented in regards to supporting  his position that he was justified and possessing a firearm was based only on mr hucks words testimony he was under an unlawful and present and imminent impending  threat that would lead a reasonable person to believe that it would be necessary to possess a firearm even though he knew he was a convicted felon and for hibbett from possessing that were there any facts other than his statements the woods anything other than his own statements the fact that left his truck and they've middle of the woods that he was injured with blood covering his body of those are all c rated by the investigating officer a felon in possession of a firearm and of in both lincoln's and williams there didn't appear to be any sort of present or imminent threat for those convicted felons were possessing firearms for subs word of a perceived threat either based on their employment or location in a high crime area in this particular case mr hawks were testified that he was under an imminent threat and there was no contradictory evidence presented before the jury what was the eminent threat though i mean i understood i understand that he thought he arrived at the house of the person who had set him up earlier in the day but when we talk about imminence we talk about somebody ready to attack or actually attacking or somebody showing extreme anger i don't understand anyone to have actually even been outside or to have spotted him when he decided to make his so called stand your honor mr hawksworth testified as he was leaving the show dropping off a bed he noticed some tools that have been stolen from them that noticed at least three individuals with firearms approaching them at that point he got in his car to drive away the notice of those same three or four individuals in their car and continue to follow him down the highway that was earlier that day right that wasn't that wasn't when he came upon that where he ended up having the the where he made a stand so to speak yes or when mr hawksworth took about four or five hours of him running through the woods when he came across a home where he believed that the person that set him up he thought he ran across his home when he saw a man approaching him from the house he believe that may have posed an imminent threat as that man had a nine millimeter in his hand once he determined that that person was not the threat and simply the homeowner mr walden observations and that officer did not conduct any sort of field sobriety test to determine what type of controlled substance or call mr hawksworth would have been under at that  time in regards to not recklessly or negligently placing himself in this situation one more one more question on that so when you did mention that the testimony or his story it suggests that that the homeowner had come out was there any evidence that the  spotted him or otherwise was approaching him in particular had target you know sometimes a homeowner just comes out you know put something in a trash can or something like that was there any part of that testimony that suggested that there was approached the it was a  presented that mr hawksworth recklessly or negligently placed himself in that position he was simply there dropping off the bed in regards to no reasonable legal alternative to violating the law mr cox were  testified that his telephone was not working properly he was traveling at a high speed down the highway he was in an unfamiliar area so he couldn't drive to the sheriff's department or police department as soon as he realized that the threat abated he put down his firearm now one hundred and eleven last question i was just reviewing my notes does the record indicate when mr haas word hocks worth had the rifle in other words my understanding of the record is that he had the rifle before the homeowner came out of the home and approached am i wrong about that no your honor mr hawksworth saw the mailbox where he believed that he had stumbled upon his assailants home at that point he said he was exhausted couldn't run through the woods anymore injured so at that point he obtained the firearm from a truck parked in the driveway does that make a difference in the sense that he you know one could conceive he had a self defense we are asking the court to follow a prior precedent set forth and particular united states versus schneider as the north dakota statute that the court held  not qualify as a predicate offense is nearly identical to the aggravators gold statue that mr hawksworth pled guilty to back in two thousand and six i understand that there's a conflict not only among the many circuits of the united states but also a conflict among the th circuit based on the snyder decision following in fields we are requesting that the co continue along that carve out as the texas aggravated assault statute could also be committed through reckless conduct and referencing state law as cited in my brief reckless driving are like d w i fans causing serious physical injury so your position is reckless driving causing injury does not involve the use of force please the court case while we get that fresh in our minds thinking about the nd issue which you dress that st oh yes absolutely the the  specific question of course is whether the texas assault aggravated assault statute constitutes a violent felony under the a c c a but the actual question the overarching question here it's thirty one dollars of our brief whether an assault committed recklessly that would otherwise constitute a violent felony and of course clause nevertheless fails to qualify it as capable of being committed by reckless driving resulting in injury that decision that holding foods and downs and then we had the supreme court deciding the voice seemed case not under the a c c a but under the misdemeanor assault in the unlawful use of weapons statute and basically they say person because the court said a person uses force if he does so recklessly as well as intentionally so we come to the fields case and we thought ok also left out thought so then we have a was the st case which basically teed up the issue but it was decided under guidelines and in that case the court again followed osama and again made reference to the gag and began a once again that they were using to determine whether offenses which weren't listed in the residual clause whether they were similar to those that were listed right you don't need that sort of analysis when you're looking at a force class case the court wants to read them but on page forty six dollars forty seven cents of our brief it pretty much lays out what our argument is that argument also appeared in our motion for rehearing in fields now fields was a case involving guidelines we attempted to obtain review in bank but since it involves the guidelines issued a solicitor general's position which they declined to vary from is that if it's a guidelines issue then the sentencing commission should resolve those disputes and we are sort of stuck with them so we did file a motion for a hearing in in fields but unfortunately it was merely a panel rehearing and we were unable to convince judge loken dissented in that but we were unable to convince judges malloy and murphy who were the other two judges to rehear the case and then snyder i think the government then file a motion for repairing or rehearing on bach as i well that york you are correct and i and i suspect that that might have had something to do with the fact that our own that we didn't get rehearing in the case i could understand the judge just thinking well if the government doesn't care why should we but it's not that we didn't care that the solicitor general has this policy which as far as i know they've rarely or ever wave from wavered from where they're just not going to seek review in cases involving guidelines now we have this sort of fortun to have gotten it wrong here because otherwise these cases were gone for years with district judges unable to sentence according to the a c c a because the courts are going to say that of the violent felony definition is the same as the guideline definition is they will never come back to the corner of appeals that is absolutely true your honor this is we are we are somewhat fortunate that we that we have this vehicle we've had a vehicle in two prior cases arguably there have been c eight cases that in one of those cases we had two other felonies which arguably didn't count in the other case we had a situation where judge erickson would have been disqualified and we would not have had a vote of the entire active judges so this is the case that we have teed up our argument of course is that the core chynna filed followed by cuisine and fog and that the court got it correct we understand that  this on this particular statute yes if you if you disagree with our position that the controlling cases are vies iin fog and rain argument is that those were prior in time they should control but that that argument has been rejected already so yeah you don't expect to win but end the reckless driving cases in particular i think go against your position for the most part yes i mean but argument is i mean if i swing a bag of hammers and hit you recklessly that would count but if i drive a three thousand five hundred pound one thousand pound automobile at you maybe to scare you or to intimidate you and i hate you it doesn't count that that doesn't make any sense and as i said we're here only because the received will clause jurisprudence has slopped over into the force clause the th circuit made kind of short shrift of the argument the th circuit said there's no there's no basis for this carve out and no other court to my knowledge has carved this out nor i don't think they would have a reason to do that so in any event that's that's pretty much our position here i did want to talk about the st issue briefly although obviously the nd issue by far the most important issue i think the the question here is i'm judged by your your questions regarding when did  see the homeowner all right let's assume everything he says is true up to that point is that the house has been running through the woods for four to five hours he thinks someone four and a half hours earlier has been chasing him he sees the homeowner is not outside the house at this point he's knocked on the door he's looked inside didn't see anybody so he goes and gets the rifle he has the rifle from the car is attempting to load the rifle before he walk outside and confront the individual so even if everything the defendant said is true in our st point is he more or less conceded it wasn't the st element is that he is under an imminent impending  threat of such a nature as to induce a well grounded apprehension and he basically agreed at the end of the day that alright i got this wrong this isn't the guy that set me up ok he basically conceded it wasn't a well rounded but the results were some testing was done and there were substances found in the defendant blood i don't remember i do i do remember and i think i would put that in my brief but i will stand on one of the record says i do know that there was alcohol that he had it minute to consuming alcohol and it tested positive for opiates and fed a means and meth and remains well that certainly would explain the story that he told  again as i said the officer on the scene said he did appear and i have no reason to doubt that and i may have overlooked it but yes that would certainly explain it again you know this did look like he was under some sort hallucinogens because you know nothing made a lot of sense and may well have been that he was running through the woods that seemed to be true and a band of his car there but that the evidence was that there was no indication that anybody had been chasing him or anything of that nature but again and i can rest emphasize the smarts too much and i see my time is up even if you get him into the house he obviously had alternatives he could have simply walked away he didn't have to run back to the woods for five hours he just could have gone back into the woods flag down a car but it turned around he wasn't under any apprehension and instead he decided to make a stand which actually wasn't making a stand it was taking the fight to this guy who was not the person that he thought he was thank you very the p s r was it objected to no that was not object to that i'm just relying on the evidence that was presented up on the record before the jury in consideration on whether the self defense jury instruction