more than one year his base of offense level was increased to twenty four dollars based on three prior convictions that were classified as crimes of violence one of those convictions is not an issue that's a california conviction the form of assault and we're not arguing that that conviction should not have been classified as a crime a crime of violence however we are arguing that his two iowa convictions one for aggravated assault and one for domestic abuse assault were improperly classified as crimes of violence and with regard to the egg or vetted assault i believe the parties are in agreement that i was form of aggravated assault in this circumstance is not meet the numerators ofan it's definition of a fair bit of assault and that is because at least our position firearm in respect to an assault it is automatically an aggravated assault because what makes an assault aggravated under iowa law is that a person commits commits an assault and uses are displayed as a dangerous weapon in connection with the assault so essentially mr carter displayed a dangerous weapon in connection with or possessed a dangerous weapon in connection with committing the assault of displaying a dangerous weapon a threatening manner so there is not that underlying assault element that would have made this conviction an aggravated assault as that term is understood the penal code and just the generic form of aggravated assault so i think the parties agree on that the government is arguing that and i believe the district court held that aggravated assault under iowa law related assault with the display of the knife and then the domestic abuse assault violation occurred basically kind of in the same episode yes it was seem evening sure to be simultaneous held that it is the th circuit is held that it is not you know non presidential opinion correct and despite the fact that it's not precedential we believe that the th circuit's analysis is is more soundly reasoned and does because the th circuit looked at how i what defines define displaying a dangerous weapon in a threatening manner and the broad way that i what defines what it means to display a dangerous weapon in a threatening manner the end of the th circuit side of a couple of iowa cases from the iowa court of appeals defendant not point a firearm or threaten to use it but the court found a reasonable jerk and could conclude that the defendant's intent was to intimidate the victims and state versus mot the defendant stabbed a calculator and a did harrison might help your position that much well i believe that they show that threatening the use or i should say threaten to go to displaying a firearm threatening manner encompasses conduct broader than just then threatening the use of force which is the crime of violence definition under the elements displaying in a threatening manner what is being threatened i think it is possible that harm that is being threatened isn't necessarily bodily harm there could be psychological intimidation at issue because of  but it it's the degree of harm that takes a the use of violence into the definition of a threatened use of force and i think that degree of harm isn't necessarily present by displaying a dangerous weapon in a threatening manner just a simple display ever so it's the degree of harm that this court in the supreme court has held is necessary that  threatened you that physical force is force capable of causing physical pain or injury to another person i think this i would cases demonstrate that the degree of in an angry confrontation with the victim or holding a firearm right i mean we're not talking about paper cuts right well though i would but i raise from some of the earlier case law that no that  i think it could be contemplated certainly that a dangerous weapon could be more than just it's more than a gun sure it's more than a knife it could yes did the district judge here we're talking here about a guidelines issue right correct did the district judge give any indication here as t o whether this issue mattered to him or did not yet i and i believe because the government asked the district judge at the end of the sentencing hearing what the sentence be the same had the district court decided differently on the crime of violence issue and the district court declined to agree that it sends would be the same cell i think it can be at least implied that the sentence might have been different had the base offense level and  moving on to the domestic abuse assault statute this is the i think the parties on this issue also agree that the aggravating factor of the domestic abuse solved what made this crime punishable by more than one year was the fact of the prior conviction not anything necessarily aggravated of about the crime itself had there been no prior conviction this crime would not have been and i think the government also agrees that the elements of domestic abuse assault or just assault and ice case do not necessarily establish that it was a crime of violence the government is arguing that the additional element of causing bodily injury necessarily means the governor of the state was required to prove there was a crime of violence we disagree with that because there was no intent element to committing bo injury we believe that this court's decision in flores is consistent with that position where in that case it was indiana's misdemeanor battery violence so the iow it's statute says this is a general intent crime and correct but the iowa supreme court according to the government said in fountain that actually specific intent is are actually required but good morning may please the court of great walters on behalf of the united states addressing st the display of a of a dangerous weapon in a threatening manner and i think the th circuit hit the nail on the head there's really no other way to read that phrase of subsection to see of the assault statute without coming to the conclusion that that is a threatened use of physical force when we look at the two cases in which  the defense realize and i think judge hampton your question was very on mark how did those help they do not i mean that the threat is holding a firearm at court arms as someone is standing at the door as if you walk through this door i'm shooting you that's at least an implied threat or taking a knife in the other case and stabbing a desk stabbing a calculator in the presence of the person from whom you're listing information the threat is i'm going to stab you and then we look at the jury instruction for what it means to display a dangerous weapon in a threatening manner the jury instruction says so as to intimidate the other person or another person intimidation is a form of threatened use of physical force as this court held in united states versus armed so by narrowing by the defendant narrowing it down to asking this court only to look at the last phrase of subsection to see we think the answer is clear that the displaying of a dangerous weapon toward another in a threatening manner is a threat and use of force so that conviction alone along with the california conviction leads to the conclusion that his guidelines range was appropriately calculated but there is a back up position which is also the domestic abuse assault of the wife that had as  defendant concedes on page twenty two dollars of his opening brief had as an element causing bodily injury there is no isn't it possible though mr walters to violate that statute by causing mental illness it is it's causing bodily injury or mental illness right so i know you've made the waiver point but looking at least a little more broadly it's a little difficult to see how that qualifies i think th the one it causing mental injury very well may not qualify so the question would be is that phrase itself divisible causing bodily injury versus causing mental illness and although only separated by the word or that they have different definitions so the question is what would have what would the government or the state have to prove to a jury to prove on the one hand bodily injury or on the other hand causing mental illness and because that wasn't briefed we didn't take that upon ourselves and i understand this case and i understand that but i think given that mathis was about iowa across into we've all been struggling you know in the wake more than the word or and yet this court has held that the st part of that statute requires the use of force the nd part of that statute does not require the use and so it depends on what theory not the prosecution  charges a case so when we look in the context of an aggravated battery where that batteries committed on a public way that turns it into a felony it meets the felony definition if it's charged under the force prong then it meets the use of force definition under the clause so what i'm saying is i don't think it's a simple a saying there's an oar in there and these are alternative means without further for the same reason the state of illinois statues divisible and yet the same crime whether offensive touching or physical force is used to carry the same penalties and yet it's considered visible by the so but if this court takes on the we it's clear that causing bodily injury requires the use of physical force there with respect to florence versus ashcroft decided in two thousand and three long before curtis johnson long before stokely now in two thousand and nineteen i think it's now clear and even in light of this court's decision and douglas against united states at there is not a separate intent element when it comes to the bodily harm that is caused and stokely in the court said they said and i'm paraphrasing but the a c c a does not require that the force used attempted or threaten to be used be quote reasonably expected to cause pain or injury if it doesn't have to be reasonably expected to cause pain or injury it certainly isn't required to have an intent to cause pain or injury and then in douglas in two thousand and seventeen this court said the supreme court precedent neither holds nor suggest that there be a separate intent element attached to a degree of injury we agree with mr moans that may be a factor but it's not a requirement and so there's been a lot of water that's gone under the bridge since two thousand and three in this area so unless there are questions from the court we would ask eleven i'd like to raise i guess what do you do you think we can rely on the domestic abuse s the i think it might would be difficult and i think we would just ask for the court to clarify it i mean it the writing is on the wall i think there's a need to keep flores that part of flores on the books in light of stokely and even curtis johnson two thousand and ten but with that said the reality is to cause bodily harm there's one way to do it under the iowa salt statute that and that's under subsection two to a which is the actual attempted or actual battery i mean you don't cause bodily harm by threatening battery so and that in itself is a specific intent crime where it's not on when you intend the act but you intend the outcome according to the i was supreme court so i think there may be a way to do it but i think the cleanest way would be to say that flores that part of flor undermined by the supreme court so there's not a respectfully a need for this court to continue to hang on to that two thousand and three case sixteen years later after stoke leaning curtis johnson you know there's one other thing i'd like to just raise with you  and invite comment from mr mullins well mr walters you and mr mullins and your colleagues and this court and then district judges throughout the circuit for years now have been wrestling with applying the categorical method to now advisory guidelines and it is as you all know that application can often turn on remarkably arbitrary classifications of statutes as to whether they're dealing with different elements or different means whether the divisible or not and i'm wondering if at some point we're to see a challenge to a district judge the district judges reliance upon such an arbitrary classifications of statutes rather than relying upon his or her judgment under th a to impose a just sentence i don't understand why in this kind of a case a district judge would give any significant weight you know applying advisory guidelines to this criminalized whether these are formally categorized as crimes of violence or not when you had a child used a knife on somebody that your wife on the face and then also committed assault with a dangerous weapon in california and given his history  rebuttal thank you and just to address the court's last comment we believe that the district courts do we use the guidelines as a starting point and that's why these what can become pretty arcane distinctions between what's a crime of violence what is and is important and it's pretty white why is it important though for example whether somebody who commits an assault or whether somebody for example who points a gun is a joke sees a factual circumstance not remotely related to anything this defendant did why should a sentence depend upon that possibility under the state statute i agree with the court's analysis however my experience has been those guidelines term order and that starting point what the district courts use now every discord is different incentives for courts guidelines more than others but  general that guideline ranch is the starting point and what it is is important so that those four levels or ten levels in the case of a two prior conviction in a gun case really do make  quite a significance as far as that guideline and you know i just chewed up all of your rebuttal time if you'd like to actually do rebuttal so well thank you go ahead avery for letting me comment but but just with respect to the the salt the th circuit found that a person could commit i way or rated assault by displaying a firearm or displaying a dangerous weapon even if the victim didn't know that the defendant assault we believe there is a way of distinguishing flores and some of the subsequent cases in particular i think all of the cases that the government cites still going boy seen from the supreme court those were statutes that were significantly different than the domestic abuse assault statute there was a robbery and still cling that the element was that the victim resistance by the victim that is overcome by the physical force of the offender that was really what put that case over the edge into a crime of violence invoiced seen there was an actual element of knowingly or recklessly causing bodily injury so the mens rea i was within the elements of causation there and then douglas douglas was the indiana felony battery florists was the indiana misdemeanor battery from what i can tell the only difference is the degree of harm caused by a felony battery which is serious bodily injury and the degree of harm caused by misdemeanor battery which is just bodily injury i think that can be distinguished o p by the distinction the court made in flores which was that bodily injury and serious cases taken under advisement