over the last couple of decades judge conway is a senior judge senior judges are a terrific part of the federal judicia and they work for free and they perform they showed her about twenty percent of the workload of the federal judiciary and without their  grandkids and do whatever it is travel the world whatever they like but so many of them judge conway included continue to perform the work of our court and to help our country and we're very well so thank you for being here this week we're familiar with your appeals and we've read your briefs in the authority cited in your brace and at least portions of the record so you have limited time today so feel free to go straight to the heart of your argument you don't have to worry about us being whether we're familiar with it or not i would probably going to have some questions please don't treat the red light as good morning may please the court i am richard summa i represent the appellate court for gandy in this case i am asking the court to find that mr gandy does not qualify as a career offender because his prior prior florida battery conviction was not based upon an element of physical force against a person of another as required by the guidelines definition of a crime of violence starting with the florida statute the battery is defined as either one  consensual touching or striking of another or to intentionally causing bodily harm to another ok so the government can see that it's divisible into touching and striking on the one hand bodily harm on the other hand and i can understand why they do that i mean there are a lot there's plenty of florida supreme court decisions and other information that makes it pretty clear that's the way it works  in florida but but when i look at the senate's recommendation that your client signed and particularly the accompanying rest arrest report which was incorporated by reference into that recommendation and quote agreed to by the defendant as a factual basis for the plea in question it says gandee did knowingly and intentionally commit the offense of battery causing bodily harm and then it describes that that crime and makes it appear seem to me at least very clear that  caught was convicted of badly battery causing bodily harm and there's a factual play basis to support it so when we use the modified categorical approach it looks like there's really no doubt your client pleaded no contest to badly bodily harm battery and what am i missing well what you're missing your honor i say respectfully as let's first examine what is a factual basis for a plea it means that mr gandy conceded that the the state if the if the case went to trial could present fryman facia evidence of guilt but of prime aphasia evidence of guilt is not a concession of you still remains when the trial court finds a factual basis to support a plea but the point of the factual basis is to say that it's a disputed issue that could be decided against the defendant if the case were to go to trial and in the case of a nolo plea such as we have here the florida law is clear that even a factual basis to support a plea is not a concession of guilt the part of the affidavit that says that clifford gandy did knowingly and intentionally commit the offense of battery causing bodily harm is a part of the factual basis or is not because the only i mean let me just ask you about this this is why i think this is the only place that the that the affidavit is incorporated is under the part that says in large bold capital letters factual basis and then it says it's agreed to by the defendant as a factual basis for this plane and so the question at least in my mind and i don't speak for anyone else is you know rises or falls on whether did knowingly and intentionally commit the offense of battery causing bodily harm constitutes part of the factual basis or instead is just this particular arresting officers opinion and the facts are what follows instead and i submit at that is the particular arresting officers opinion of what the offense is and i would suppose i would point to one other thing in the record which i think supports that it says his agreement was that the arrest report agreed constitutes the factual basis for the plea as follows and the restroom for uses the same language when it says intentionally cause bodily harm as follows so the allegations which follow are the specific allegations that the defendant agreed would support the the entry of the but there are other points in there that i would that i would get to as well maybe i'm missing except it seems to me that if it says your client did knowingly and intentionally commit the offense of battery battery causing bodily harm as follows and then it has a description of a bad battery causing bodily harm in which the victim was left bleeding it strikes me that that as follows doesn't help that her cheat what am i missing what you're missing your honor is that those allegations are ambiguous ambiguous under florida law as whether battery battery causing bodily harm as follows is it your position that that's just a legal conclusion that it's not entitled to the i guess the characterization as a fact i mean is that what your position yes and there are other reasons to show that it's the plea agreement is itself ambiguous under the modified category what couric approach to florida judge would have to be required to find the element of physical force and that offense was committed by causing bodily harm that's not required under this plea agreement i would note that when the battleground was touching or striking and i'm referring and i'm going to referred now to document fifty eight page two when that was the issue the government argued that this police agreement showed true ved a battery by striking so can the government ha both ways by saying it proves battery by striking and now it proves battery by causing bodily harm i thought in the matter of modified categorical prose the judge's ruling had to be more precise than that it had to be clear that he was convicted under this this the visible part of the statute the causing bodily harm which in compass is physical force that's not necessary under florida law or or under the plea agreement causing bleeding over the eye and what do you suppose that dependent was convicted of he was convicted of battery by touching or striking there is no way to distinguish under florida law whether those kinds of facts constitute battery by striking or a battery by intentionally causing bodily harm and that's the reason that the modified category does not carry the day understand this why it is you contend that there there's any issue at all that this was byers touching or striking when the arrest report that's incorporated by reference and agreed to by the defendant as the factual basis for the plea does not  mention that way of committing battery at all well two things well because the case started out it was charged as touching or striking or causing bodily harm the judgment does not reflect that the judge found a causing bodily harm and i may be somewhat biased by my experience because i did practice criminal law for twenty years in florida courts and i can say to the court with great conviction there is not a single case under the florida law where a defendant is convicted soley on the theory of battery by causing bodily harm and i'll tell you why that is the government never proceeds along that line because it's so much easier to prove battery by touching or striking and the report in this case proves my point we have a arresting officer who charged the defendant specifically with battery by intensely causing bodily harm and what did the state attorney do the state attorney said he or she said hold us second we don't do that in florida we're going to charge this defendant the same way we charge every other defendant with battery by touching or striking or causing bodily harm and no case in florida law as a defendant ever been convicted of battery by intentionally causing bodily harm so so i have don't see any way how this plea agreement could be the first case in florida  where a defendant was convicted of soley battery by intentionally causing bodily harm i mean let me let me ask you assuming for the sake of this argument that we conclude  that that the references in the affidavit to knowingly and intentionally committing the offense of battery causing bodily harm are legal conclusions right if we conclude their legal conclusions then your position is there's no way to know which crime he necessarily pled guilty to is that right yes ok but if there are factual allegations to it does your position change i still argue for the same result because under florida law that well my position is it can't be a factual which i am the defendant did not can see concede that he committed very by intentionally causing bodily harm agree it's divisible the second part of the causing bodily harm is the visible i can see that yes yes touching it or striking one way yes causing bodily harm is another way yes judge pryor ok it's my time for rebuttal thank you very much thi good morning may it please the court this is jordan learn on behalf of the united states it's going to law the law of this circuit as well as you know multiple jurisdictions including florida that this state or the federal government can charge multiple alternative elements of an offense well let's start interrupt but for me as i was saying to your friend over there the whole case comes down to whether the references in the affidavit to knowingly and intentionally committing the offense of battery causing bodily harm are factual allegations or are more fairly characterized as legal conclusions on the part of the arresting officer and so let me ask you this way if we were to conclude hypothetically that they were legal conclusions why would why would opposing counsel not be correct i think it would be a combination of factual conclusions and legal conclusions are ok but i'm asking you that we find their legal conclusion and i'm not saying we will but for purposes of answering this question just assume we find their legal conclusions would you agree if we find a legal conclusions then opposing counsel is correct and if not why not i would not agree your hon pleading no contest in this particular case right the defendant has to acknowledge or point to something in the record that says these are the elements that i'm admitting i'm agreeing to you i'm stipulating to question is if we look at these these allegations that are characterizing the conduct as a specific type of violation as legal conclusions instead of as factual allegations would you agree with opposing counsel that this cannot count as a violent crime and if if not why not i would disagree right because the legal conclusions they don't exist  isolation right there's a factual basis that substantiate the legal conclusion that's provided in detail here here's the problem and maybe you can respond to it seems to me that under mathis under taylor under shep under all of those cases that that when we look at the facts as alleged and you've got a charging instrument like this one which charges both sides of the offense conduct right to charges these two you know strike or hit or strike or touch and intentionally causing bodily harm that the record has to necessarily demonstrate that the violent crime is the one that is pled guilty to and here the reason why it doesn't do that is because all of the factual allegations setting aside these characterizations of what he pled guilty to could satisfy either part of the statute so we can't tell which one he necessarily pled guilty to that's the problem i would disagree or on  when when the defendant agrees to a factual basis that will satisfy both subsections or both versions of the battery offense he's necessarily admitted both alternative elements and that's the way th disagree then with circuits analysis of this issue and horse looking i would if that's i'm not familiar with that particular case but if that is indeed the circuit's analysis then yes we would disagree i mean it think of it this way if the jury if this case went to a jury and the jury returned a special verdict finally that the defendant guilty of both forms of battery as their alternative charge which there wouldn't be a dispute we wouldn't have an issue the defendant was necessarily convicted of both forms of battery in this case right we had we don't have substitution for the jury's verdict let me make sure i understand his nolo plea is as far as i can never say that he's pleading to touching or striking it's incorporated by reference to his plea and agreed to is the factual basis for it and then it has a description of the crime it would support that legal c your stryker but the factual allegations equally and more specifically i think if you write that but if you if you take out just for purposes of the hypo you take out the characterization of the crime right in the end the affidavit which is attested to by an arresting officer not by the charging officer which is the prosecutor and if you look at the actual charging document it charges both if you take out those two things you can't tell necessarily which part of the the indictment he pled guilty to i'm asking i want to make sure i understand your question correctly so if we take away the factual basis as a no no no if we know ok the factual basis from the affidavit remains what i'm saying is if we disregard the characterization inside the factual basis of this as intentionally causing bodily harm because we conclude it's a legal conclusion instead of a factual allegation you can't tell what he's pleading guilty tale and i'm not saying that it is necessarily a legal conclusion but for purposes of answering this question i'm trying to ascertain the government's position i think i understand your question your honor  no because i would say the facts the agreed upon facts that were the defendant agreed what establish the elements of the offense he was pleading to would certainly establish a conviction for bodily harm battery now no i've never seen it would but it doesn't necessarily mean it's for that right because in order to say it necessarily was that we'd have to would have to look at the other charge that it could have been touching or striking and say that there is an element of touching or striking that's not met by the facts that are alleged and the factual basis that are met by intentionally causing bodily harm wouldn't we have to do doubt i would disagree i would say we don't have to prove bodily harm battery to the exclusion of battery by striking  well you could have like you know we have this is come up in some of the indirect force cases of this court scene you could have intentional conduct where you don't have to actually make physical conduct that would result in a bodily harm battery but the point is these two alternative elements they're not mutually exclusive right but that's the whole problem right because then if you don't have those legal conclusions as we're characterizing for purposes of this hypothetical then you can't say necessarily he pled guilty to intentionally causing bodily harm as opposed to intentionally or as opposed to touching or striking right i mean that's the problem how can you necessarily be sure that that's what he pled guilty to if it satisfies either and or both will  are again i was our position would be it when you agree to facts and these are facts that were agreed to by the defendant as the basis for his plea that you necessarily admit the corresponding elements that go with those facts and so this case he wouldn't have necessarily admitted right because if you if you look at the facts they stablish of bodily harm battery i'm not disagreeing with you there's no question in my mind that he could have pled guilty to intentionally causing bodily harm there's more than enough here to satisfy that but that's a different question than whether his guilty plea to the facts leaving out the legal conclusions as we're calling them for purposes of this hypothetical whether the fact necessarily establish that that is the half of the indictment to which he pled guilty and our government's position is that would necessarily establish that because he has agreed to facts that necessarily satisfy both elements of both alternatives of battery that were charged the indictment you know again growing back to my jury example right you can have both the defendant has agreed to facts that established both and i think frankly the facts are stronger to bodily harm better just because it was what was specifically focused on right and there florida law basis of the defendant agrees to is going to be a more accurate representation of what the conduct that he's acknowledging and the corresponding elements that he's admitting as part of his plea so in that case in this case it would arguably the government's position you know we did we was bleeding right and so he agreed to those facts that i think it really is a matter of law satisfy both elements of the offense and he i mean this wasn't a stipulation or the prosecutor's offer of proof right this factual basis and the question is what does that mean and you might be right i mean maybe it means he agreed to incorporate also the officers characterization of what crime his conduct constituted that might be right i don't  know but it may not be right and if it's not right then we're left with just the facts but your position is that it doesn't really matter either way because as long as there's enough to satisfy both crimes then we don't have to worry about whether it necessarily established one crime versus the other while our position would be that necessarily a stablished both crimes right he stipulated to facts right but the problem is you have to demonstrate that the conviction was necessarily for that particular crime as opposed to touching or striking you have to there's a demand for certainty and that's a quotation from taylor and also from malthus  a cop asks whether the defendant necessarily was convicted of that crime so i mean that's that's were i think it becomes a little bit hairy right there and i agree it could be it would certainly be much easier facts if we were circumstances if we were dealing with one alternative to the exclusion of the other but again i got the government's position is going to be that when you stipulate agree to facts that establish a right because we don't have to show one to the government well our position would be that we don't have to show one to the exclusion of the other you couldn't you can admit both alternatives of the offense based necessarily based on the conduct that used to pilate to as the factual basis of your plea because the factual basis has to establish the elements of offense and this case arguably establishes both elements but that would simply mean that the that the defendant pled to both alternative forms as set out in the plea agreement and the factual basis and one of those forms we know tells us that while that's not to get us to the crime of violence right doesn't have the element of the use of force but the the the the bodily harm that was also pled to right does contain the element of the use of physical force and what qualifies a crime of violen if we look at the factual basis and it refers to battery bodily harm that re causing bodily harm and there's no reference to the alternative oh and of touching or striking and the question is well what elements of the crime did did those facts establish right because that's what the modify categorical part is all about and why because we're not relying on the facts necessarily for the truth of the matter asserted only to the extent that they clarify what elements the defendant intended to plead to when he entered his plea right and in this case he admitted because mr gandy certainly could have said i'm not going to agree to this actual basis i'm only going to agree that i touched the victim in that that that would have been sufficient for his plea but here we have plea agreement that was an agreement between the prosecutor and the defendant and the defense attorney that lays out this very detailed factual allegations and the charging documents the not the only shepherd document we look at we we can also look then we would not be able to discern which one or for an analogous situation if this went to trial both charred both versions were charged and the jury returned a general verdict the government would be out of luck we couldn't meet our evidence for a showing but here we have specific factual allegations t correspond to the element of bodily harm battery allegation you're not suggesting that any of the allegations that the government relies on come from any place other than the affidavit right they have a well there is some written  stipulation as well but the affidavit that the defendant agreed to that i know i understand that but i'm saying there's it's not like there's some independent factual basis that was read into the record or something like that right  thank you the court cannot rely on the legal conclusions of the arresting  said i say that because there's an ambiguity in the record and the modified catarrh girl girl approach will not tolerate such ambiguity i don't understand where the ambiguity is oh you agree that the factual basis for a plea that incorporated by reference is a shepherd document we can rely upon yes your honor you agree that the factual basis that is incorporated by reference in this case mentions only battery causing bodily harm with facts that are then described that's what's mentioned yes and there is no reference in that incorporated by reference factual basis to battle battery beis touching or striking that's there i submit that that document has to be crime and the supreme court has said we can go to the shepherd documents to resolve what would otherwise be the ambiguity of that conviction or in this case no described as supporting that i don't understand that sheppard document shows any ambiguity i disagree because i think the document does not clarify the ambiguity because  number one if you look at if you look at the officers conclusions he also concluded that the offense was a misdemeanor and that wouldn't qualify as a crime of violence but the officers conclusions were superseded by the information which charge also battery by touching or striking and whenever is your position really that these are the officers who by the way is not a prosecuting authority the officers opinions of the crimes that have been committed based on the facts that he alleges that follow is that what your position is that these are these are his legal characterizations of the facts that follow and they may or may not be right but they're not facts i officer is entitled to and i know about it may not make you know make statements of or not it's incorporated by reference with no conditions whatsoever right and i know i'm out of time but i'll answer the question by saying when when the defendant in the florida court agrees that there is a factual basis to support the charge he means to support the charge that the crime as charged in the information ok thank you ok thank