that's correct starting with the recklessness issue the case law in the jury instruction in this case make clear that voluntary manslaughter can be committed by acting recklessly with extreme disregard for the value of human life and this court has found misdemeanor crime of domestic violence and expressly reserve the question of whether section sixteen which again is identical to one hundred and twenty four c could have a different higher mental state requirement and we are aware of course of the line of circuit cases saying that recklessness can be sufficient because i think you sort of premise yourself to the language is very similar if not exactly the same in the various spots that you've identified so we've got fog we've got we've got a line of cases that  is enough and post was the does that how do you how do you carve out a different analysis for manslaughter here i would have two respon the fog line of cases doesn't say that every statute that requires recklessness is going to be sufficient there is still the line of cases about reckless driving resulting in injury being insufficient for the force cause under those statutes and i would just refer back to the more specific case which is interpreting a statute that is identical to this statute and so it would be a new law for this court to find that tourist below us is superceded and recklessness just in general is sufficient for the use of force under the we've sort of been approaching this just generally is the mens rea of recklessness sufficient under the under the force causes that use or attempted use of physical force are there are courts that are are making this distinction that the government is made here if there are circuit courts doing that i'm not aware of them i can say that there is a recent th circuit case in the united states versus big eight and that case held that nd degree murder is not a crime of violence under the th twenty four force because it can be committed recklessly and that also has the extreme indifference language so i have to be an opposite example of a situation where the th circuit is treating extreme indifference recklessness the same as ordinary recklessness for this w extreme what's the what would be the definition of you know off the top of your head from the jury instruction for just regular old recklessness i guess i would i'm just going to shooting from the hip maybe a conscious disregard of risk is how i typically seen recklessness interpreted you know we're talking about the force close here the circuit of course has distinguished between the different levels of recklessness for the generic definition of aggravated assault in the guidelines but that's not at issue here at least today the court has not distinguished for the purposes of the fo and the nd reason that voluntary manslaughter is broader than the force clause under nine hundred and twenty four c is that it doesn't necessarily require the use of physical force against the person of another because it covers certain prenatal conduct  office have the use attempted use or threatened use against the person or property of another in person is defined under federal law as excluding unborn children in this court in flute interpreted the manslaughter statute as covering a mother's prenatal conduct that results in the death of the child after birth and so the unborn child is not a person within the meaning of federal law at the time of the acts or at the time of the alleged application of a force and so that means that a mother or a person can commit manslaughter season even where there is not another person at the time of the application of the force and that means that manslaughter does not necessarily require the use of force against the person of another and we are i think the government cited in the  briefing and we're certainly aware of the line of cases saying that well it's impossible to cause death or serious bodily injury without the use of force in those cases don't reach this situation they don't reach this far all of those cases the people's r case that line of cases in the circuit in the statutes that issue in those cases there is another person under the meaning of federal law at the time of the application of the force and so to apply that line of cases in this context where a person can commit manslaughter time be the use of force against a person of another and it would take that line of cases too far and extend it too far to say that that is satisfied where at some point before the offense is completed before the crime of manslaughter is completed there is a separate person of another but the the crime only comes to fruition when there is a separate person under that theory yes that's true sort of an ongoing kind of an offense i don't know if it's technically ongoing but  assumption that there is another person at the time of the force that would extend it too far so still based upon that you're recommending what you're recommending that the court find that voluntary manslaughter is that is something that courts have been saying since they started applying the categorical approach and the court's job in our job is to analyze the elements in real under the categorical approach in relation to what the statute says you know this came up in the davis case of course congress could these are all federal offenses so congress couldn't numerate what they meant by a crime of violence they could add nd degree murder st degree murder voluntary manslaughter involuntary manslaughter they could add all of those you know the federal criminal code is limited but they haven't done that and i guess this became absurd now because the residual clause is void for vagueness and before this point you know the last couple of years these convictions would have qualified under that clause so so whether or not mr mccoy was entitle to any relief as i noted in the supplemental brief that was filed davis took care of the original issue so that's decided  but the nd issue as to whether or not mr mccoy's title two relief is answered in the negative no he's not and the reason for that is because voluntary manslaughter is a crime of violence under the elements clause which is nine  c three a defining a crime of violence says is a crime that has the use attempted use or threatened use of physical force against another person i think we need to look at what this crime of violence in fact was it was voluntary manslaughter that is effectively a partial defense t  nd degree murder which requires an action by an individual that is done in heat of passion which is defined as based upon adequate provocation meaning the individual took some deliberate action deliberate action in response to provocation by another person that's not the type of recklessness this court or any other court has ever had any issue with in fact that a circuit pattern instruction on voluntary manslaughter specifically says talks about the conduct being in the lingo of this yes you know i think it what it is divisible it is there are two separate crimes that are contained in a legitimate care of the flu case then because i believe is known here yes and i i don't know of any but it is clear just based on the statute the wording of the staff minutes or the punishments are different the punishments are different voluntary manslaughter is up to fifteen years imprisonment involuntary is eight years of imprisonment so there are significant differences in the penalty there are also significant differences in the elements because involuntary manslaughter has a  i can explain it this way eleven charges nd degree murder one of the and there is a request for an included offense of voluntary manslaughter lesser included a lesser included offense the government must prove beyond a reasonable doubt in the murder elements that the defendant did not act under heat of passion and that was the instruction in this case that was included there it's a negative element we have to disprove heat of passion when the jury finds heat of passion exists it then convicts of voluntary manslaughter it essentially says we forgive malice aforethought we take out malice because of heat of passion but the actual mens rea a part is identical it is still an intent to kill and intent to cause instruction you know or it does say willfully in extreme indifference to the value of human life in malice aforethought that's how it's defined in a circuit instruction that is part of it so they're c three a is no longer applicable to no i i'm not arguing that you know i'm not saying re sentencing is is necessary i'm saying you're arguing to the contrary i am arguing that that voluntary manslaughter qualifies as a crime of violence under named twenty four c three a and that mr mccloy's conviction on that offense should yet remain intact i see  on the line of cases that this court has has had or where you've had issue with recklessness being the mens rea element have all referred to the matter as being a statute that covers simple brecht list driving resulting in injury that's not voluntary manslaughter that would likely be involuntary manslaughter i've tried many of those cases where you have an individuals engaged in driving under the influence a dui that results in injury but that's a standard of gross negligence that's not reckless that's gross negligence the distinction i would make for you is this when want to engage is an involuntary manslaughter it's a problem but it's a it's a possibility that when somebody gets in their car they're going to crash into somebody else because of their impairment and that's that's the disregard of the risk that they're engaging in for reckless conduct and the type that's involved here involuntary manslaughter it's the person who gets in risk to another person whether or not they specifically intended to cause death or injury to that person who they are engaging in an intentional and purposeful act use physical force and endanger that person that's the distinction that's really at issue with what is recklessness in the sense of voluntary manslaughter and gross negligence which i think is probably what this court and other courts have struggled with is with recklessness in the sense of reckless driving resulting in injury to somebody there's a vast difference there but but even that in the supreme court at least and by zene left open look we're not we're not going to section you know sixteen on the recklessness that could be a different standard so i'm not sure that we can collapse as you proposing or at least how i'm hearing proposed that we collapse when it's when it's very manslaughter we're going to collapse reckless is really just intentional acts that were carried out by the defendant but that's effective statute is that's what voluntary manslaughter is in fact that's why is that intentional action by the defendant it's in probably cation one can look at this statute you have to have provocation heat of passion to convict of voluntary manslaughter that is an element of the offense that requires a defendant to act in response in response to somebody that's act intentionally or recklessly but it's still in response it's still an actual it's a it's it's an action that is deliberately taken as you by that person is your distinction with the heat of passion portion or is that what you raised i think in your supplemental briefing on this this is sort of recklessness plus well i think it's both and i address both it is recklessness plus it is more than just simply gross negligence that this possibility that something could happen to somebody else gross i mean you've separated gross negligence and recklessness right yes so so now we're going from recklessness to whatever your recklessness plus's fiserv you're saying takes it out of any kind of analysis of just regular recklessness in particular with this statute because it's an element of this statute it would remove this statute in particular or from that whine of cases were the court has had issue with a statute that has just simple recklessness resulting in injury do that i mean it i mean you've highlighted a couple of things you're saying it's in response to  know i guess i don't i'm not certain how to answer that because i'm looking at this particular statute in this particular case and i as i look at what actually happens in a voluntary manslaughter case it does seem that it's this particular statute that i need to look at an address and how it runs how it how it applies to other cases is certainly most would would also have somewhat of the same issue because malice aforethought does have that extreme indifference language in it as well so there's a possibility that would yet apply to that as well i'm just thinking of other statutes and there is probably a multitude of state statutes where where it may have a similar type of language i can't address any r i can't point you to any want what is the reason that you think we need to limit this decision to a statu element as it does being able to be the inadequate men's rare for a crime of violence and in that in that manner so this court in particular has gone beyond one recklessness should qualify but if this court has some concern that it doesn't this is a higher degree of recklessness here and we have an additional element of heat of passion that exists in this particular statute that just start with the distinction between involuntary manslaughter involuntary man we've talked in the link you i want to start with the distinction between voluntary manslaughter involuntary manslaughter that would be relevant to the flute use manslaughter and involuntary manslaughter the statute defines manslaughter as the unlawful killing of a human being without malice that applies to both voluntary manslaughter and involuntary manslaughter and that's where language at the  interpreting in the fleet case and then the voluntary and involuntary is divided between the different types of mens rea so that would be a separate argument than whether the statute requires the use of force against the person of another so the operative language in the flu case is still the unlawful killing of a human being without malice that's what is your argument is that the flu case shows that the slaughter can be committed without using force against the person of another but the only scenario in which that flu case would apply is under involuntary manslaughter that's the only scenario in which it has applied so hard that i under voluntary i mean how would someone in the heat of passion or  not convicted like the flute theory situation that i can think of when i was thinking through that question was a mother who in the heat of passion or without a provocation relating to circumstances in her own life attempt suicide or take some action like that that would meet the heat of passion without malice where the mother survived but unfortunately the baby died after birth so there i think that there are factual scenarios where a person is kind because it's really only separated by what lead to that conduct not the amount of force that's used in terms of separating voluntary and involuntary manslaughter so we do believe that the distinction between voluntary and involuntary manslaughter doesn't matter in terms of the fluid argument because the statutory language at issue in that case is the same as what defines the elements of manslaughter in terms of the unlawful killing of a human being so so you're arguing that based on definition but because this is a separate crime than one hundred and twenty four c conviction is a separate crime where asking that the entire conviction be vacated the conviction and conviction that's correct ok and then that would leave him with just just a voluntary manslaughter conviction that my time is expired thank you very well thank you for your argument