element of a statute in a separate section of the statute willfully is defined as an aging in conduct intentionally knowingly or recklessly intentionally knowingly or recklessly are alternative means to the we our burden then is to show a realistic probability not a theoretical possibility that the north dakota a read of south statute is being applied to conduct outside the force we saw this in the state versus a case where the victim's finger is injured  this particular prosecution you're talking about it isn't a problem the court has two ways of except these documents into the record the first is through arguing the state of the issues in the state case we're just submitting these records to show that they exist which is important because our hurdle is to show a realistic probability not a theoretical possibility that north korea's applying the statute outside of class and this case demonstrates that and so all of these documents that you've proposed are in the public record yes so also at  closing the prosecutor stated quote again ben wasn't scared he was drunk he was upset he wanted to hurt channon he was at the very minimum reckless about that reckless about the consequences of the choices that he made close quote so this  realistic probability and not a theoretical possibility we also have in addition to solve the case we also have a now this north dakota statute the manslaughter statute which also demonstrates that realistic probability that they would apply the statute to north dakota that they would apply the north dakota aggravated assault statute to this type of conduct but we do have a selfie case which demonstrates that is how the statute is being applied it is sort of a novel way looking at realistic probability to look at one statute and comparing it to another and how sort of almost a lesser included type concept it or any other circuits or district courts that are doing that and type of analysis for purposes of the realistic actually applying the statute to conduct that falls outside of an outside of the force class so all someone always asks is that the in banks all be judged by asking the question which is simply by the time we're done with all this exercise have we really repealed the army criminal career because every statute that we get before us we've had state after state where the most common and simple of crimes we find something we find some cases and and so there are cases where this still qualifies and we're arguing specifically under the specific line of cases it's really this this niche area with those santa fields don and bruce cases of reckless driving resulting in injury that were really arguing here and so we have that again with the saudi case and with the statue by sector comparison we think of that sports it was as well well you know depressed judge benton's point is in this case a good example of precisely what judge ben was saying here we have the prior offense being aggravated assault he pushes the other the woman down the bad inserts his finger into her mouth and then later jumps on the hood of the car kicks the wind chill out and takes the child that seems to me to involve violent force are we really almost reading out the violent force of the arm career criminal act here you know what i will say is that this is a this isn't a factual basis houses this is a statute based analysis so when we look at the element element is never conclusively decided so so under any approach we're not allowed to look at the facts are you familiar with that case yes ok why is that addressed the divisibility issue we don't have that in north dakota there is no state case that addresses the divisibility issue so the question is open for us so because they have a supreme court case that addresses the visibility issue they were allowed to proceed to modify categorical approach and again doesn't we don't have to have a reported case here to to prove that the statute is being applied that there's a realistic probability that the statutes being applied outside of the force cause so i switched to the assault require only recklessness that does not require a tent so there are number of states who define aggravated assault as only involving recklessness why shouldn't we take that into account in determining whether or not  well again there's the intent to cause bodily injury i don't know what those states say about that intent to cause bodily injury but we know in north dakota aggravated assault actually does not require that extra element is just willful conduct that results in serious bodily you please the court good morning your honor is my name is jake roden biker and i'm appearing before you on behalf of the united states this morning to respectfully request that you affirm the district court's finding that the base offense level for leland schneider was  twenty not a fourteen because his prior aggravated assault conviction under north dakota law is a crime of violence under the sentencing guidelines we can get there i think the court can get there in three different ways two of which fall under the elements clause and one of which is under the enumerated clause that the preference has been to go in order of how they appear in the guidelines and so let me proceed that way to the categorical approach which i believe the statute falls within it is not over broad and that sense and i come up for you sort of like the rabbit as it were leading the court down the rabbit hole as i think your colleague the chief judge of the eleventh circuit has put it and in a unique way because i was the prosecutor on the cells the case that is referenced that is why i was familiar with it probably the only reason why it is before the court because it appeared in a footnote due to my  schneider charging document was not very clear as far as like it was i do think that the charging language if you look at the information that was filed or i believe it's titled complaint in his case the better argument you can make as far as which section he was convicted under is subsection three and that's because the specific facts alleged about the injury are more in line with bodily injury while attempting to cause serious bodily injury and while i'm on that point i think subsection three is a specific intention no intentionally subdivision of the north dakota aggravated assault statute in that you can only be guilty of subsection three if you are attempting serious bodily injury attempt of course signaling a specific intent to to achieve the serious bodily injury which takes it sort of beyond the recklessness realm that it would otherwise fall in with respect to  the court that it was charged pacifically under subsection one and i think if the court had the entirety of the cells the record in front of it rather than just the twenty or so pages that that schneider has asked the court to consider if the court looked at all four hundred plus pages of the record including the trial exhibits which judge kelly i believe all of that is of public record so if the court wanted to take notice of that i believe this court could do that but i think that court would find that it's not in fact the reversal causing a broken thumb that is aggravated assault well in fact in cells he was the aggravated assault was after he reversed his car and broke the thumb of his sometime friend shannon miles shannon miles started running away in the parking lot of this bar and what happened then is ben sells the drives after shannon miles through this parking lot and runs him over basically causing a broken foot i don't think that that s clear from the limited record that schneider has asked this court to consider but again if the court looked at the whole case of cells they would see that it's not the reversal causing the broken thumb that is the aggravated assault that is the aggravated reckless driving and the court will note that there were separate convictions for both offenses because they were separate actus reus right there were two different or your approach you agree we go into the facts of the other it's just the facts of this case we can't yes and that seems sort of bizarre but i think that's what the president holds and i think it's the crime that matters when looking at whether there's a realistic probability as opposed to just a theoretical possibility i submit that we're still in the realm of theoretical possibility when it comes to north dakota's aggravated assault statute being used in a manner that would be overbroad for the categorical approach and in fact if anything i would encourage this court to look at cells really as a case that shows how north dakota is not using the aggravated assault statute as a merely unadorn reckless driving substitute and that is again because the conduct the cells we engaged in was both aggravated reckless driving the first act and then it continued on and sort of a close sequence of events to become aggravated assault they were both charged along with several other offenses there were different conduct and he was convicted of them they were the documents we have maybe this is what you're referring to we don't have a no there's amended criminal information with only one count are you saying that the jury considered more than one count against him yes judge kelly it's sounds bizarre but and this was something that i found peculiar as well when i became the state's attorney mckenzie county but the practice was at the time that the citing officer the arresting officer could file citations of misdemeanor offenses in a case and then anything that was a felony would have to be charged by the prosecutor as it were would have to be filed within information and so that's how that case if again if you were to look at the whole record you would find that old timidly amended information but you would also find several citations for misdemeanor offenses including aggravated reckless driving which under north dakota law is a class a misdemeanor so that was filed simply by a uniform traffic citation but it served the purpose of a charging document the instructions fully reflect that it was one of the counts that mr cells we face in the same trial and again looking at the entirety of the record and i'm not sure the court could get its hands on the surveillance videos from the bar in question but it would clearly demonstrate that which were admitted into evidence but that would clearly demonstrate the sort of course of action that i'm talking about where he's backing up the victim's thumb is broken the victim starts to run away and he's chase down very deliberately certainly an act of alicia and mr so that it was charged under one i mean right you said earlier was charged under one and as opposing counsel said under that statute it can be recklessness or intact and the jury isn't required to decide between those two and convicting that particular defender in charge and even charging the defendant i agree but i but i don't think judge that that is mere reckless driving i think if the court were to look at the entirety of that record it would  that is not sort of this needle in a haystack that shows north dakota is using that statute as though it were just a substitute for a look at it from my perspective which is that if you've already gone down the road of charging let's say it was intentional  terms of looking at the facts once you've gone down the road of using it to even go after somebody for intentional driving if the statute itself allows reckless driving it doesn't seem that fanciful and that's that that's the word the supreme court's used and i think we use that in our swaps case it doesn't seem that extend it just a little bit further to rock listeners and i wrong about that it probably doesn't seem that fanciful but i think the president has suggested that we don't don't want to use legal imagination we want to use real world examples and i think that sell we fall short in providing that real world example again as i've submitted i think it does the opposite it shows a real world example where it could have been used for simply reckless driving but it was not it was used for what i think the court would find to be very intentional knowing conduct i think solely also is a poorly suited case to look at for the realistic probability factor because the court never really touched on this and i don't i don't say that to say that this court could not decide that that was in fact what sustained the conviction but the trial court was never challenged on whether or not it was simply reckless driving court never had to answer that and when the case was appealed by sells it to the north dakota supreme court the only issue on appeal was whether the evidence was sufficient in light of his claim self defense and so that opinion i'm kind of struggling with with how we can avoid looking at the statutes of the state takes the position through their statute that you can commit something with a series of willful it's reckless series of mens r it's kind of a choice that then you have to except for when we're looking at the statute as we've discussed this is looking at the statute not the underlying offense so it may not be the ideal way to do it but i'm struggling with how we avoid looking at was not thinking certainly the question of whether aggravated assault was a crime of violence and of the categorical approach was not even a gleam in my at the time i tried this case but what this court i think has done with respect to asking the question of whether recklessness makes a statute overbroad is to say reckless driving unadorned mere reckless driving i think that's if we dig into osama and fields really what this court has looked for  simply criminalizing that conduct and not only are we doing that but what's the example of it i do agree that it's not too fanciful a stretch and appreciate counsel's arguments about the manslaughter statute for disobeying a sort of lesser included but as i pointed out of my brief we do have the aggravated reckless driving statute for reckless driving that causes injury we don't have the concern that say the first circuit expressed in looking at bennett about maine statute where you could be convicted for dui causing serious bodily injury or death and i submit that we don't have that in north dakota and i confess it's not in my brief but there's a statute  driving under the influence resulting in serious bodily injury or death at north dakota so there are times where we don't have to look to use took a look at whether or not there's been a prior prosecution in other words are there times where the plain language of the statue this might be a variation of what judge kelly was saying where we can just look at the plain language of the statute and say you know what this particular crime is encompassed within it it's obvious it's encompassed within it maybe they can't point to any prosecutions that happen in north dakota or whatever state it is but it obviously is covered and therefore we've got a problem under the our career criminal act i suppose that one example comes to my mind is if the mens rea were negligence for example so there are some offenses in north dakota that have a mens rea of negligence this is not one of them of course this rightward has said reckless and above at least in fog of his is sufficient for use of force and that's what we're looking at under the categorical approach  moving on if the court doesn't like the categorical protean finds this is too broad i think that we can see in the parties basically agree that the statute as a whole that we're talking about is the visible and we disagree about whether the willfully aspect of the divisible but again i think we can get past that by looking at mr schneider's charging document as judgment and you asked about and see that really what he was convicted of is a subdivision three which does have that specific intent embodied in the while attempting serious bodily injury aspect finally your honor i also believe that we can find that the aggravated assault statute is an enumerated offense and now i think that it hinges on what this court meant in chapman when it said intent to cause serious bodily injury and i don't think that the common ordinary understanding of the word intent is equivalent to intentionally or purposely as i would sometimes consider it i think that when you look at intent what we're talking about is there needs to be sufficient mens rea to cause bodily injury or serious bodily injury morita word any in the chat including any intent and why yes any intent that this court has found sufficient which again would be recklessly and so when we have all that's not negligent correct that would be below what this court has found and outside this the realm of the numer defense of aggravated assault so i do think that this court can read consistent with chapman and it's prior holding that aggravated assault is an enumerated offense under the crime of violence that a nation in the sentencing guidelines without your honors and so you know for their questions i appreciate the opportunity to come and argue before you today in this matter we ask that you affirm and i thank you for your consideration thank you c subsection one subsection three so to the extent that counsel's argument now says that it falls under subs section three that that that's wasn't the case in the briefing and when there is  it's when it is inconclusive of what subsection and falls under according to horse looking you have to look at the least couple conduct under either subsection which is why this conversation really focuses on subsection one which has to do with the willful conduct and that ties back to the conversation that we're having where conduct is overbroad indivisible i do also want to touch on this the case that was discussed during the we can first we can submit and supplement conduct and something higher than reckless but if we look to the quotes from the transcript that wasn't the case at trial the prosecutor stated that quote the highest level culpability the state needs to prove is reckless close quote and then again at of intentional conduct was required is a little self serving at this point at this stage of the game where we know that aggravated assault can be sustained by reckless isn't he making a slightly different argument you can correct me if i'm wrong on those but i think he's making the argument that if you we're looking at the prosecution saying is it fanciful to charge reckless driving you saying you know even if he wasn't convicted of intentional conduct because the jury didn't have to decide that there's no question in that case that the that the actions were intentional and so we're never going to charge or reckless driving under the statute i mean i guess what your response to that i disagree with that and i think the full record well i think the records that we submitted would demonstrate that but then ten months to reverse a vehicle and thing thank you thank you counsel for the argument case number seventeen three zero three four from north dakota it is submitted for decision by the court