welcome to the sixth circuit we have studied your cases and we are eager to hear your arguments so with that proceed with first case p research three minutes for my rebuttal work here on an appeal from an amended sentence that was entered by the district court and there's actually several issues that have been raised on the appeal and i believe that it is appropriate for the court to consider all of the errors that have been raised and briefed whether it be under a plain error standard or whether it be under ineffective assistance of counsel standard i know that is a bit unusual and i know that generally the court does not hear issues that may cross or transcend over into the bounds of ineffective assistance of counsel however how about start with the general proposition about the remand scope of every man and that's right sure well it was it's my position in argument that the remaining and from this court to the lower court was a general remain and that was not limited now so let's explore that promoter why do you say that well i understand that the six circuits order said that the case would be reminded for consideration of my client's claims in light of johnson that's not what it said well it generally i'm paraphrasing but it says that it's it was being reminded because of the johnson issue it was it was granted by the supreme court sent back to this court and then this court sent it back to the district court but my my argument is that the remaining doesn't actually say the court shell only consider or the remaining does not say that the only issues that should be considered at that's one example of a case that i've cited in my brief so i believe if we look at the general property tax pretty clear i mean it's the johnson issue well i agree that the johnson issue was the reason for the remain and i don't disagree with that in there's there's another case cited that in my brief i believe it's daniels and in that case this court said well that may be the reason for the remaining but it wasn't necessarily a i mean absolutely i am i don't your instruction errors are asking for things that are in actual i don't disagree i don't disagree with you i don't disagree i am raising those arguments in and that's why what i was raising about the issue of ineffective assistance of counsel is we have some very serious jury instruction errors instructional errors which this court has reversed at least three convictions based on the same error so is this all raised at the trial no it wasn't i don't just another hurdle count i don't dispute that your honor i don't decide how do you how do you feature this court circumventing that that heard well all right first and i cite this on page eighteen of my brief but the court has said that the court has said that the general rule of not raising ineffective assistance of counsel claims is prudential it's not jurisdictional and this court in ferguson and williams in both of those cases recognize that the court certainly has the power and the ability to do it i don't dispute your honor so that you're saying they weren't raised before and it isn't safe for your client to wait on an ineffective assistance i mean if you raise it now and we reach it he's not going to be able to to litigate it again right well i agree however he has a pile of behaviors for tears and it would be his so he could file his first petition raise ineffective assistance wouldn't that be a safer route for your car i don't disagree that he has the opportunity in the ability to do it the reason i'm asking the court to look at the claims is because like what ferguson and john and william say is if the record is sufficiently developed in which this case it is what would we do what purpose would be served by having an evidentiary hearing and asking counsel why didn't you object to these mismatched elements of the one twenty four c charges i mean the district court read instruction that was just clearly incorrect in which this court has reversed and of wires in low so what would be the point in going back having that hearing to ask counsel i understand if this court ruled against my client on the issue then he is he understands that that issue couldn't be raised in a subsequent twenty to fifty five he might have other issues i don't know to raise in a twenty two fifty five but that issue would be taken off the table if the court made the legal conclusion that the claim either prevail or didn't so the record is factually developed the jury instructions were filed with as part of the court record and you have them you can see the errors in them and there's multiple errors that the district court  there if if this court found there was a general remand which is the pursed her right yes then we would reach you or the substance of your ineffective assistance by virtue of finding the error was there was there it was plain it affected your client's substantial rights i agree although it's also it's my position that you could reach that without without regard to whether you found the remained to be a general or limited because i also believe that is a prudential issue and if the court has the legal issue in front of it and the record is sufficiently developed i believe the court could do it i guess i just don't see why it means nothing limited i don't believe that the language of the remained is expressed limited in the sense that it would cap the issue with the the district court in his ability to hear the issues and i also believe the ineffective assistance claim also adequately presented that the court could reach that issue and again i don't i know we're we're we're disagreeing perhaps on the general proposition but i do believe as the court said it is not a prudential or jurisdictional issue  ineffective assistance claim in the earth appeal that he have a different lawyers on direct appeal any different than me different then different from the trial court different from his trial counsel generally you wouldn't raise an effect of a sister you were the same or you're right you know it to be an issue and i don't remember if it was the same lawyer i know who the lawyer was that tried the case i think you know you have been the hood have been raised on direct i mean it doesn't matter what the general riemann doesn't mean you get to reword agape conviction based arguments that you didn't raise the first i understand that that is the general rule and again my argument is that if we have a record in ineffective assistance of counsel claims that are adequately developed and there demonstrated in the record that the court should reach those issues as opposed to having it go back and have us ask the question really the question we should ask is what would you do at an eviden hearing to ask counsel well why didn't you object to what is quiz clearly a misstatement of the law in these jury instructions have been found to have been faulted and resulted in several other reversals of cases so i just don't see i'm struggling with the practically she think that judge nalbandian brought up originally it seems that you would want to have that opportunity to complete the record you would want to be had will to have the questions to show the span of ineffective assistance of counsel because that right this is shall we say the merits of your claim of ineffective assistance and broadens the number of issues that you might be able to present and have taken by the court on twenty to fifty five i don't know what practically speaking might she want to divide the issues this way well i don't disagree that my client can raise all the issues that he might have on a two thousand and fifty five i don't disagree with that your honor and and that instance that would allow the district court the opportunity to conduct plenary hearings on all the issues i don't disagree however i just think as a matter of expediency as to this as to the instructional errors that have been raised that those particular errors could be raised at this point now we're dividing it even further well the king and what extent yes leading them into this bucket and leaving the reminder for another to it to an extent yes but only if the only if the instructional errors are do not prevail and the instructional errors on their face have strong merit and have a compelling argument for the reversal of the conviction if you look at the other cases that this court has has looked at christiane all for instance the court said look this is a this is an incorrect statement of the law when you mismatch these elements so if the conviction is reversed there would be no need for their proceedings are plenty or a hearing on the twenty to forty five so speaking from the perspective of what might happen if my client were to prevail on the issues of the nine twenty four instructional errors we won't have a second hearing on the twenty to fifty five an ineffect assistance of counsel so i do believe that there adequately reflected in the record i understand that the court's concern is why divide them and they certainly can they could be done together on that note there's a very interesting issue of first impression on the johnson issue about the about the elements clause of nine twenty four c and i understand the landscape of that law has changed in light of demaio of the supreme court's decision i believe that clearly calls into question the constitutionality of the residual substantial risk clause of nine twenty four c so in that instance the district court could also make the decision in the first instance as to whether anyone in a betting object robbery constitutes a crime of violence under the elements cost again a question that has not yet been answered by the same circuit if we took up the elements clause in your the first argument would be unnecessary to address right that's correct yes your honor right and so that is get i believe in my letter of supplemental thirty i filed i believe that taylor is called into question now in light of demaio and i also cited a ten circuit opinion which i understand is not binding but the tenth circuit clearly reasoning and shooty that distinguished tailor i understand the reasoning but if you look for instance at that tenth circuit opinion that i filed in my letter of supplemental thirty it clearly refutes the the legitimacy of that reasoning in light of to my and so i believed in my  given and given what we've already said i think they were were bound by i would disagree i i would argue that the supreme court's decision provides a basis for this court to find that taylor is no longer good law and i know i've exceeded my time so unless you want me to continue an explanation i will reserve my right to do it in your rebuttal all right thank you your honors thank you we hear from the government whether it was a general or a limited remain because what is very clear from the order is this was a remained limited to re sentencing and a remained for re sentencing does not permit a challenge to a conviction which is what is challenge the jury instructions  perhaps and i think i think perhaps if we look at it contractually at the time the order was interim the supreme court and then at the time that the order was injured from this circuit there was some question as to whether johnson applied certainly at the time that the supreme court issued it the there was question whether johnson applied to the guidelines and there was also question whether applied to nine twenty four c by the time this court had already or issued its order to the district court tailored already been decided so there's no question as to the plate billeted to nine twenty c there was still a question as to the guidelines because this court upheld in pollack that johnson applies the guidelines and if and that's part of the reason why we had this sequence of pre sentence reports issued in january and march and then again in july in quite not quite so there were two different issues it wasn't just whether johnson applied to nine twenty four c so that would in the hypothetical world in which which were not conceding but in that hypothetical world were johnson did a plot in one thousand foresee that perhaps would have implicated the convictions but that is already been decided by the time this court issued the remain to the district court however there was a separate issue of whether ninety four whether johnson applied to the residual clause because mr richardson was found a career offender under section forty one point one of the guidelines and at the time of his sentence his conviction sentencing there was a residual clause that perhaps was invalidated by johnson those who were solely the sentence that would affect it solely the sentence and this court had already held in the spring of two thousand and sixteen and p that johnson did apply to that that guidelines residual clause and so there was a need to have a new present report there was a need to determine what his sentence should be on the non twenty four c convictions however after after this case was reassigned from judge rosen to beccles came out and at that point the supreme court said johnson does not apply to the guidelines so at that point the entire reason for the remit had been invalidated he we objected in may of two thousand and seventeen and asked probation to reinstate the original person or does that matter at all all of that argument i mean the question is whether or not the conviction with or or just the sentence was vacated by virtue of the remains and only matt i think his question was more what would have happened had they determined if we had the district court term and johnson applied you're answer is correct at the time that this was going to judge ramiro there was only one question that was was the sentence affected by johnson and the answer was no my point being so whether this was a general or limited remained the convictions were not at issue and even if they were at issue which they were not that would not allow him to bring instructional errors not related to johnson such as these mismatched elements that they haynes that was a case this court decided back in two thousand and six when a book or challenge when when a case was reminded post booker and a defendant tried to challenge the conviction in this court said this was a wouldn't you or which issues of the jury no your honor he does not and in fact there were a series of cases which he does site which certainly would suggest that he does but the supreme court has issued decisions since then that largely suggests that those are all  invalid as a matter of law didn't the government bring up one of these issues at trial i mean the government itself which is sure for until you remember which one it was it was there were number of issues that the government suggested i think you're talking about the the reference to the wrong count as you know nine twenty four c realized that underlies an underlying predicate that's certainly a misstatement and if you look at the verdict there's no question that that was harmless because the verdict states not only what the underlying predicate is count two and this is the verdict for this on page six seventy six of the record it says as to count two using and carrying of a firearm during in relation to a crime of violence aiding and abetting it then refers to the specific store and the date of that robbery so even to the extent that the district court did reference the wrong underlying count the verdict form would have been very clear to the jury but again this is an issue for the district court to address on a twenty fifth to fifty five what was the case that you resolve the issue of thousand and ten that instructional errors such as these are subject to a harmless error analysis and so when a jury is instructed as to alternative theories of liability some which are viable here would be the use in carrying one which may not be viable such as the possession those are subject to harmless error and so we would look at did that harmless or did that erroneous instruction undercut the jury's finding and here the answer is obviously not because not only did the jury find use and carry there was a specific finding that brandishing was involved and so there's no question that the jury did not eroni asli convict frank richardson of aiding and abetting the possession of a firearm but this he was convicted of miranda shari not clear exactly how it sort through this but isn't the brandishing issue part of the problem in this case because brandishing is not charged and that's correct it was not but also that's far from clear that that's a mistake as well because this case was indicted in two thousand and ten at that time it was law of this circuit as well as the supreme court that you didn't need to allege brandishing this case began in june the trial began in june of two thousand and thirteen a lien came out in june june eighteenth i believe of two thousand and thirteen so in the middle of trial comes out that says this is an element that you have that a jury has to find and so the parties discussed how to address this and the parties reach the decision of instructing on brandishing and requiring the special finding it's hard to see how the parties and the court trying to address a supreme court case that comes out in the middle of trial and specifically require the jury to find the very thing that only requires is somehow error that that's mind boggling to me and frankly contradicts the way that i understand the process supposed to work but again this is why this should issue should be dealt with in a twenty to fifty five because these are far from clear these are errors and certainly to the extent they are there harmless errors again whether whether general or limited remain and the instructional errors are were not before the district court they're not before this court believe what the tenth circuit said is that taylor was the erroneous one not shooty understand but it was shooting as explanation in distinguishing a toddler michael it's all it's all about it is absolutely and i think the short answer is this court doesn't need to reach th issue because aiding and abetting hobbs act robbery is a crime of violence under the elements clause help me understand why exactly the extent of that argument if aiding and abetting is automatically subject to the no your honor because those are required different elements so a conspiracy as you know requires is an illegal between two or more parties to commit some sort of offense and then the person knows about the existence of the conspiracy in voluntarily joins in to it some conspiracies also require an overt a but regardless the agreement is the crime so i may agree with you today to rob a bank but that doesn't mean we've done anything aiding and aiding abetting because it's a theory it is going to betting is different because the underlying crime is committed that is one of the elements the jury must find so in order to convict someone of aiding and abetting hobbs act robbery or bank robbery as in the case that i submitted twenty a day this week in aiding and abetting context the crime is committed so here it would be hobbs act robbery and so there that necessarily requires the use attempted use or threaten use of force it also requires that someone who is aiding and abetting that principle to know of the full scope of the crime that's rosemont i have to know the full scope of the crime intend to commit the full scope of the crime and i have to aided and somehow those are the three things a jury must find so in an aiding and abetting context unlike a conspiracy that force is found by the jury finding the crime was committed and this this jury was instructed with all of the and even someone even the aiding and abetting that might be alleged by someone who picks up one of the criminal participants of the crime after the crime of the in takes that person home will keep in mind that aider and abettor i am convicted aiding and abetting if i'm convicted of that i am the principle i'm convicted the same as a principle and so unlike in an agreement standpoint the crime is committed and that has to be found and i have to find that i've committed it  e some way i'm not sure that people are they want to after that between committing the crime in assisting in some ways but you're saying that that's the burden of the government to show that it was adequate to have to have to be categorical approach we look at as an element did it in involve the use attempted use or threaten use of force which is the answer that question the jury has to find that was a committed by one of the participants and then in order to convict as nadir in a better that crime was committed you intended to assist in that crime knowing the full scope of it and you took some sort of step to further it and i think that the wall around the country i mean which part the aiding and abetting i mean everybody except that aiding and abetting is in qualifies under the use of requirement so as far as the way i define aiding and abetting that comes from pattern jury instructions in rosemont right as far as whether other courts have accepted this frankly not a lot of people have tried to litigate this issue cited the few cases that have addressed the issue in my twenty a j on monday the case of the tenth circuit eleventh circuit has addressed a number of times i'm aware of that because it's not charged that way in other circuits or because the case law in other circuit is that we abolished the difference tween accessories and principles but as far as why there's not more case law on this i think people just haven't tried to argue that because there's no distinction between the two and in fact in this case i think there was some confusion if you remember from the sentencing hearing mr richardson claim that he was convicted of conspiracy and kept harping on the fact that i committed conspiracy that's not a predicate crime i think there was just confusion in the fact that conspiracy and aiding and abetting are not the same thing i think that's why people are not challenging it more because there is no legal distinction there's no principle basis to find that it's not a crime of violence i will say that there was a dissent in poland but that was a very different sort of circumstance because that was in a successive twenty to fifty five in the fall of two thousand and sixteen where everyone's trying to figure out how does johnson apply and what that dissent said i think it was judge martin in the eleventh circuit she said this isn't clear this should be addressed down below because it might not apply she didn't say it doesn't apply because it because again as you know from a successive twenty fifty five stand point is their prime aphasia claim that this could apply let the district court figure it out because and as you know from two thousand and sixteen we had no idea what was going on a lot of these johnson cases and others are trying to figure out that was more for the court to the district court decide but then it came up again in the more recent case of charlton and that was a full panel the eleventh circuit that said no betting is the same and frankly that was aiding and abetting attempted robbery there is no case that said that aiding and abetting doesn't sure that that could be and certainly don't want to concede that but that's not here these were all full flow full fledged robberies in which the they occurred attempt could be but perhaps not that's for another day thank you and thank you  think you're on i strongly disagree with the government's assertion that aiding and abetting is the same it's not the same the jury instructions specifically tells the jury it is not necessary for you to find that he personally committed the crime you're right there is a distinguishing factor your honor you mentioned you asked the point you said you don't have to find it someone committed the elements of the underlying crime that's correct would commit that's right but what he has to commit yes but right is in the army we treat aiding and abetting to you committed the crime he treated the same first for punishment purposes i don't disagree with that but for purposes of determining whether aiding and abetting have zick robbery can constitute of crime of violence we do that under the of looking at the elements in section two makes clear you don't have to reach the underlying elements of the crime so you don't have to use force or threaten force to be convicted of the aiding and abetting so under the categorical approach as my brother counsel pointed out was a successive motion to vacate so the court was only considering whether to grant a certificate of appeal ability which was judge martin's complaint in the dissent that they look this isn't been fully briefed it's not been decided we don't have a record so i mean with all due respect the eleventh circuit in colin reach that decision sort of walked off the cliff and then charles and said oh well we're going to we're going to fall cola now because colin said it but if you look at section t of eighteen u s c section two aiding and abetting it's clear when you're applying the categorical approach that aiding and abetting how object robbery does not constitute a crime of violence and there's no other case law that's been out there you've asked the questions well what's everyone else in the country doing we don't have on it which is why it is an open question i want to address the brandishing point my brother council said well it came out before before they charge they charged it a time that they didn't have to charge brandishing we agree with that the law changed he says well we  had a discussion well to do the thing to do was to supersede the indictment and put it in there that was how you correct it it has to be charged a lien makes clear the supreme court's decision alien makes clear you have to charge the element it wasn't charged and i find the government's explanation and adequate to say well we just decided to instruct the jury on it well then they proceeded at their peril because they should have just issued a superseding indictment it's really that simple as far as my brother counsel's point about the supreme court's cases that have changed no i i strongly disagree with that the supreme court merely just reaffirmed that harmless error applies judge batchelder in lol specifically rejected harmless error as to those mismatch jury instructions are in which she says it's wrong it's wrong and she reversed the conviction and that's the law in this circuit that i believe is still controlling the supreme court's decisions did not change that standard nor did it change what was held in low is the jury verdict form change that analysis or is it simply an error because it was charged wrongly it's an error because it was instructed wrongly yes it was an error because it was instructed wrongly such at the jury was allowed to return a verdict on a non existing crime and that is what the court has held and castano said lars and lo and by the way just as a matter of an aside i don't know if your honour's realize all of those cases came from the eastern district of michigan from the same u s attorney's office so that the point to be made is the recycling these jury instructions that are eroni as these are the same instructions are being recycled by in some instances the same counsel for the government i'm sure they know now all right thank you your honor thank you for the time thank you both very arguments we will consider your case carefully and issue an opinion in due cour