seventeen fifty four ninety carlos clifford low versus united states of america arguments not to exceed fifteen minutes per side counsel for the appellant melissa salinas supervising attorney to be argued by law student garrett fox good morning and make please the court i'm melissa salinas on counsel of record for mr lowe i had the honor of introducing a third year law student at the university of michigan garrett fox who will present the argument today thank you thank  you good morning your honour's in may please the court my name is gary fox and i represent the petitioner appellant carlos lo with the court's permission i would like to reserve three minutes rebuttal you may your honors mr low's armed criminal act sentence must be vacated as the government is conceded this court decided in crowther versus united states that mr low's third degree burglary conviction could not withstand taylor's categorical analysis therefore each of mr low's remaining three state court convictions must qualify as an ar predicate offense under taylor if his sentence is to be sustained because his one thousand nine hundred five rape conviction does not fall within the ambit of the armed criminal acts use of force because his sentence is invalid and this court should vacated and rema the plain language of tennessee code thirty nine two six zero four which codified the rape offense in tennessee shows that mr and the decisions of this court interpret in that statute show that that conviction does not meet that standard that that that  constitute a sufficient element to to indicate force no your honor in this court has already examined this precise variant of this precise tennessee statute and concluded because the term coersion is included can as this court held in united states versus arnold it can but need not involve the use of force but that was a battery case right that was sexual battery this is unlawful sexual penetration is the language of the statute how is  not that's always a use of force it seems to me well so the mere fact of earth of the fact of sexual penetration has already been held by this court to not be use of force by itself and that is shown by this court's decisions in which case in united states versus when and in re sargent which dealt with crimes that that was kentucky right sarge it was kentucky yes and that was so i think that's a fair point you're making but let me ask you this way if we said would you agree that cutting someone's finger off is a use of force in most circumstances yes your honor ok well let's explore when it's not so if  you and i are i tricked you by fraud which is one of the elements that you argue is not i think you would argue it's not a you support and i say it won't hurt to say ok and then i cut you so you can do it and i cut it of force well your honor that deals with the fact that if this court finds that the fact of sexual penetration itself is a sufficient use of force then it must also it must include all the variants of the rape of fense in for instance there was an ohio law at issue in united states versus women which dealt with in a sexual relationship between a married woman and her stepson and so that if that reasoning is accepted by this court then that offense as well by the mere fact that it doesn't involve sexual penetration would satisfy the arm for criminal acts use of force clones i think you've got a great case law on your side i'm just asking is set that aside per second i mean i'm just puzzled how sexual penetration lawful sexual penetration cannot ever not be a use of force conceptually your honor i mean it does strictly speaking involve the use of  when you mean any force whatsoever so that the the government argued in its in its response brief which which discussed these issues for the first time that the amount of force any force that's sufficient to cause  or the possibility of injury is enough so perhaps it's not any force whatsoever but it can be a very minor amount of force and that would really johnson essentially said slapping someone's little right johnson one is and that's a minor amount of force compared to an unlawful sexual penetration it is your own go ahead i'm sorry so the government's argument in the well so if this court decides to find that arnold does not bind it here because it it's true arnold did address the sexual battery statute rather than that which imports the rape statute issue here rather than the rape statute itself  it we this court is bound to look at the statutory language of thirty nine to six o two which provides a coersion definition that is that that applies to a broad range of statues one of which is the rape statute it issue here there the the the statute defines coersion as either a threat of kidnapping extortion force or violence and as the government has a by the government admission in its in its motion to correct its brief that it filed last friday some but not all of this conduct falls within the purview of the use of force clause and that is all that is at stake in taylor's categorical analysis taylor asks what the mere fact of conviction shows the way the government tries to get around it and there bri i know you respond to this in your responses they say those are  elements different elements not me yes your honor and that that goes flatly against this court's recent on bob decision instead and the supreme court's decision in mathis what makes something an l an element is something that the jury must find beyond a reasonable doubt in convicting the defendant amine on the other means on the other hand is merely a real world fact that has no legal effect or consequence in the situation and the two the two decisions tennessee courts the government cited for the proposition that these are elements are actually fatal to their argument the first united states vs gone off is a sufficiency of the evidence challenge which runs through the the different illustrative examples of coersion it compares the defense conduct to first to kidnapping then to extortion and then to force or violence presumably if these were evident or elements that needed to be found beyond a reasonable doubt by a jury the court could not run them together like this the jury would have had to find one variant and then the court could compare the evidence to the variant that the jury convicted under otherwise they're usurping the function of the jury and convicting under a statute which the jury did not examine the state versus chandler is still and worse for the government's argument and explicitly so it says that the statute has two facets one is all of these illustrations of coercion run together kidnapping extortion the other facet is the use of authority a custodial parental or official authority over a child under the age of fifteen years so that the fact that that court ran them together as well shows that they are means rather than elements and that so the fact that they are means rather than elephants and health sorry elements shows that the court may not properly consider them without violating the sixth amendment if the jury the sixth amendment guarantee is that there is a jury between the defendant and the power of the state if the jury if the fact of conviction does not demonstrate these facts by itself the court is effectively usurping the function of the jury by considering them in evaluating mr low's appeal and the appeal of any other defendant the shepherd documents say fear or co divisible itself your argument would be well this is under coercion and the government supplemental brief proves that coercion is not always violent or a use of force and asked such we where is that a fair summary of your argument yes yes if it's divisible which i know you would probably dispute but nonetheless so you don't need to dispute it to win as your argument we don't need to dispute coersion shows that it would be the coercion variant then the question of divisibility of the coercion section itself arises by the government's own admission it's overbroad because it at least there's at least one way of falling within that coercion statute a threat of extortion being the most vivid example that does not satisfy the use of force clause so if this court finds that that which it should that that the coercion definition is invisible elements and means what makes a statute divisible is the fact that it lays out several different variants with the stature of distinct crimes which the jury must find beyond a read and that really puts the burden on the jury to find specific things beyond a reasonable doubt so as the tennessee decisions that i just cited show a jury is not required to find beyond a reasonable doubt that a defendant engaged in a threat of kidnapping as opposed to a threat morning please the court my name is look mcclarnon i'm here in behalf of the united states the denial of mr low's twenty two to five petition should be affirmed because he failed to meet his burden of showing that johnson affected his own criminal  prather the third degree burglary commission no longer qualifies as a violent felony however mr low has not met his burden of showing that the other three a c c i predicates were affected by johnson in fact this has already found that reasonable jurist could not debate that the one thousand nine hundred nine aggravated assault and the one nine hundred seventy six rape qualify as violent felonies under the use of force clause the key question the court has to address today is whether mr low has specific part of that statute that that wouldn't really get at the other six right i mean we don't want to focus on the one on which he was charged and how that's characterized absolutely we that's the question is what variant was he was charged with but i think the court has then asked the initial question of what are the different variance in the statute right what are the options of what he could have been charged with and could have been convicted of and again at the end of the day we're more concerned with is not what he was charged with but what he was ultimately convicted up and so looking at the statutes here we identify seven different variants of the offense now beyond this statute you know these variants are contained in two separate statutes  judge donald questions to cut to the chase you agree he was convicted of rape by coercion well it's actually we think the evidence in the record is a little bit unclear on this point i would point out that don't you lose of the or in other words that the shepherd documents are clear then we don't know and then arnold in sergeant and all the cases he cited bind us and i mean clearly those held that some of these variance aren't sufficient  we don't lose if the evidence is makes it unclear because of the posture of this case because we are this is not a direct appeal this is a twenty two to five motion and twenty two fifty five proceedings it is the petitioner who has the burden of showing that their sentence is in fact unlawful and if his if he can't show that he's in sentence was in fact based on a predicate that only qualified under the residual clause then he hasn't shown that his sentence is unlawful what about the fact that the shepherd document say fear or coercion your honor i think that the that appears to be a typo but i would i would agree with you that that does seem to indicate that it is more along the lines of a coercion variant of the offense but if you actually look at the p s r which contains undisputed facts about this offense i think it muddies the waters a little bit in terms of understanding what he was actually convicted of thirty seven of us are i'd indicate that what happened here is that mr lowe dragged a victim across a car seat and forced her to engage in sexual conduct that certainly sounds like a forced variant of the rape offense not a coercion variant of the rape fence and that's that's the reason why it's your question earlier that way as to i think the evidence in the record what he was actually convicted of is a little bit muddy here and i now wish that the indictment we have uses fear or coercion language which is a little bit odd it appears to me that that might have been a typo in the indictment we correct that certainly we can't but again the question is has mr lowe shown that he was convicted of a variant that only qualified under the residual clause these all these elements get the same criminal punishment whether it's fraud or  is the punishment the say yes the punishment is the same but that that's certainly not a problem a problem in terms of visibility meaning the legislature can define multiple separate offenses the i'll have the same punishment if they do find them so sure they have different punishments than we know for sure that they're separate fences and the mere fact that the coercion definition is included in a separate statute doesn't preclude the possibility that that's identifying that that that statute itself is divisible and create more variants of the offense in fact three other circuits have addressed this kind of issue in a found that you when you when you have a definition section that can still create multiple variants of an offense i would refer the court to the third circuit's recent decision in united states v henderson which of course is not cited in the briefs here but it's forty one after six twenty three and the eight circuits very recent decision in martinez b sessions eight ninety three and third ten sixty separate statutory section when you have a statute that said cross reference is another statute that that means that the things in the other statute are simply means and not elements what you have to do is you have to actually look at the language of the cross reference statute because that cross element we we disagree with that point in our our position is that the there are four different variants within that coercion definition that essentially what that statute does is you have a variant of a rape by threat of force rape by federal kidnapping you did do you disagree with him that the way the jury instruction would read is if you find the defendant unlawfully sexually penetrated by corage and they are guilty means of committing portion of our home i disagree that that is how it would read understands the law i think if you look at the ten cases that we cited they treat these rich white differently both god and chandler treat we're being including different types of coercion that there are different offenses within that understand where i was because i don't see that let's look at rate by use of print or custodial forward i think you see it most clearly and i'll admit the the tennessee cases we have are not as you say you don't have any tennessee case out there that says oh well these are means and these are elements and the reason we don't have these by which a defendant can commit way back her going back i think and and dealing with the elements first main criteria and i'm not sure how that helps but what what i think how it helps me is that what you see the court doing is treating these different types of coercions as distinct rape offenses and i think you see that most clearly in chandler chandler says look the offense that the defendant committed here was rape by use of parental authority that that is the actual offense that we're considering because that's what was it issue here and i knowledge these cases they don't talk about means elements they don't use that language that's language that comes from maps this is a that's what makes part of this analysis so difficult to do is that you have to parse state court opinions and say what a state law mean when states courts are not doing the same analysis that the supreme court talked about in matters some of that this is relevant at the center of a what was this defendant sentence absolutely and so the question is how how far is it divisible what what how how does it divide and what pieces does a divide into and our position is that if you look at the definition of fortune in ads it basically says that there are essentially four did four more variants under that coercion your ultimate point is if we can't figure it out they lose right because of the procedural posture my point is that it is his burden to show that he was convicted of a variant that does not count and he hasn't met that bur not necessarily your honor it depends on if the court found that he has met his burden of showing that he was in fact convicted of the coercion variant as opposed to the fear variant exactly as opposed to the force variant your honor  arnold doesn't control for a couple reasons one arnold it was actually interpret in a different statute so it's checked the technical holding of arnold doesn't isn't actually binding on this court and i think same exact elements right other in it sexual battery v rape it is looking at that but i think arnold didn't didn't make any firm conclusions as to how how you how specifically parts of the section are i think i would agree that and i don't nobody is disputing that what arnold said that the  divisible that there are many different rate offenses within the statute that that's true and that's that i think that that that nobody is disputing that arnold didn't actually go into the specifics of how far you divide the sajid how many different variants are within the statute like whether force and coercion are separate variants whether coercion contains actually four different variants arnold doesn't address any of those questions they do say this as we noted in our first opinion coercion may but need not involve force i would say that that is not binding on this court that that it is these dicta that i don't think is very hopeful pretty good because matt they were citing mak mak was looking at coercion as defined under ohio law an understood things that involve the use of force and not i don't really think the court should of course much weight to that because here we have a tennessee statutory definition of coercion which the court should look to and when you look at the language of that section tory definition it very clearly discreet kept it discrete types of coercion that is language that indicates that you're talking about alternative elements of proof of of the offense as opposed to alternative means and i think that you see that that discussion about how you can have a definition section that can include that can actually spell out alternative elements in both the murkiness case in the henderson case you don't our position again is that  divisible into seven different pieces and it is mr lou's burden to show that his offense was forty variant that only qualified under the residual clause if he cannot prove that then he is not entitled to twenty two fifty five relief and the evidence in this case does not establish that there are at least three variants of this statute that we were clearly count under the you support clause the rape by  first two variants either rape by force or rape by threat of force and he hasn't provided any evidence to show that he was necessarily convicted of one of the variants of the offense that could only have qualified into the residual cause i point out that even these variants of the offense  that might not count under the use of force cause it's not even clear that they would have countered under the residual clause so it's not clear that that his prior conviction his prior classification in this case was in fact based on the residual clause and if that is not the case then he is not know honor's very quickly i want to get to the my colleague acknowledge that the p s r is not a shepherd document and can in no way bear on the the outcome of this case how did the p s r get that information you're on on i'm not sure how the s r obtain that information it was an investigation by the by an officer appointed by the court i'm not entirely sure how they i mean are there more separate documents out there that we're not aware of not to my knowledge your honor there there is  expressed in the united states versus potter which is a decision of this court just this year which held that the defendant must show that he was sent he could've been sentenced only under the residual clause now potter just last month was cabin to very narrow circumstances by this court's publish decision in united states versus rains which shows that potter's heightened burden on the petitioner only applies when there is an indication on the record by the district judge that denying explicitly that they'd used the residual clause in sentencing the defendant the facts of potter are unique the the district judge specifically said in evaluating his twenty to fifty five motion that he did not rely on the residual you do have the burden here i mean he's right about that right ye so if we can't figure it out the answer is you lose well the question is what is are but that it is mr it mr low does have a burden as a twenty two fifty five petitioner but that burden is to show that his sentence did not necessarily involve the use attempted use or threatened use of force against another person potter is a threshold rather with you have to show that if that is on law yes he has to show that there is some conduct that does not fall repeated instructions a sentence is improper if there is if there is some condiment if the minimum conduct criminalized under a criminal statute is broader or outside the scope of the of the arm for criminal act then the court may not consider it without violating the sixth amendment there oh wait the stat you can see the statutes divisible and you have the sheppard document yes and so you have to show you fall in one of the elements that is not a use of force to simplify would that does not fall within the use of force clause yes ron and mr low has done we've provided a shepherd document or shepherd document has been provided showing that he was convicted under a variant of the rape statute that this court has already held as overbroad and which the plane with by their argument as you just to simplify it you're under the coercion in the course is under arnold etc not a use of force or overbroad in the us you're entitled to really honor arnold need not control here how if i believe that it does but it need not because this court recently addressed instead in the supreme court is addressed in math as the difference between means and variance and i think that got a little bit muddled in the discussion with i mean that's probably your secondary argument because if you the best way for you to win is arnold will the best way for us to win yeah arnold proves it but the coersion definition helps us it need not be bright it need not be invisible to it is invisible but it does help us because it shows how tennessee defines the statute and the decisions in golf and chandler also show that those variants do not