the defendant christian or christopher mcgee was convicted of two counts of being a felon in possession of a firearm at sentencing he raised several guidelines challenge challenges both legal and factual to his that those objections were overrule and he maintains those objections on appeal today i will focus on the increase to his base offense level for having a prior crime of violence in the two level increase for use of a minor i was to reserve two minutes of my time for a bottle turning first to increase to his base offense level i was taught with a weapon is not a crime of violence because it does not satisfy the force clause and it is broader than the generic definition of aggravated assault as to the force clause seven or eight one and then includes a sentencing him and he has met provision of seven zero eight point two three and i can just offer in general because i came from the state system it's kind of all over the map how this is charged and how the judgment orders look when it comes to iowa stopped but in this case there was no subsection listed under seventy one point one and it listed seven one point two subsection three so turning again to seven point one these are alternative law indicates that they are modes of committing an assault and also there's significant overlap between the different subsections and the seventh circuit case of ad words the court there indicated that when the alternatives  similar and similar conduct would fall under multiple subsections that's a good indicator that these are not elements but instead that they are means because they are means all of subsections must satisfy the force and they clearly do not under the circuits precedent most notably i was salt seven or eight point one can be committed by fear of an offensive or insulting touching this is not rise to the level of violent force because i've been away for one fails to satisfy the fourth cause the standing in his vision seven to eight point two three must satisfy the force class it is not seven or eight point two three prohibits the use or display of a firearm in connection with an assault these again are alternative means not alternative elements regardless neither alternative satisfies force class iowa law makes clear that display does really not require a whole lot for example in the hall case all that happened was that the defendant had i think in that case it was a knife in his hand used as the fifth circuit noted in rico mendoza also doesn't require much it could be an accident youth the user you know you then part you parse two point three separately from parsing one but why do we have to parse two point three when it's only contribution here is is is to make it a felony not not to it's not needed to establish you if it's not needed to establish use of force like put it that if you if we disagree with you on one point three simply being means in other words if we can analyze seven or eight point two three but i would push back on the idea that it is satisfied i would now first even if there are alternative elements that point so to my point one if this court determines that boots and mate are still good law which of course it's our position that and under the horse looking case from the circuit when we don't have that kind of certainty when we don't have a specific subsection listed and conduct could fall within both subsections that's not enough this categorical approach requires certainty and that is not what we have here the conduct from the judge and order could fall under any of the subsections under seven point one so even if this court continues to determine that these subsections under seventy one point  means it's still not enough to establish a violation of seven or eight point one subsection the read in this case and to address the continued viability of boots and made our position the aftermath of these cases are no longer good law suits have made discussed in a one point two three like we have in this case but really what the court focused on to find that the force clause was satisfied with seven or eight point one subsection three and i don't know if it was just assumed or because of the state of the law at that time but it was clear from that those court's decisions that it could specifically analyzed seven or eight point one three and the court when determining that the force cause was satisfied our position is that it so yes in general on these issues there are the all over the place but our position again is that point one alternative means they don't also have for the fourth cause so it's over it's overbroad under the generic definition of aggravated assault and also fail to satisfy the force clause i see i'm cutting into my rebuttal time if there are no immediate questions i would wish to reserve the remainder of my time for a bottle  the two main cases would be back difference between what this court was dealing with and boots and made and what the court is dealing with here the difference between those cases whether or no they did not address means elements questions because versus copenhagen or that wasn't directly addressing the assault statute but it did essentially deal with the assault statute because it was a an appeal dealing with i was robbery statute and the robbery statute has as an element that the defendant had the intent to commit a theft but then he also must commit any of the acts listed in subsections one through three of the assault statute and what the court indicated there is that  proven to a jury as an element of the offense and the copenhagen decision suggests that in the state of iowa that is the case now the language in boots and made both boots and made revealing with cases where  seven eight point one three and seven eight point two three were cited in the judgment of conviction and the court used the language that in those cases we're dealing categorically with a crime of violence here we do have that s piece of it in that seven a way point two three the part of the statute that ultimately makes it an aggravated misdemeanor it does specifically cited that section of the judgment in this case is the basis from basis for making it an aggravated the government that there is the visibility under mathis of seven away point one how do we then know based on the shopper documents in the record that we're dealing here with seven away point one three the government's point there is that that is also where the fact that we also have the seven away point to three conviction is relevant because that's relevant to determine under which section a seven way point one three the individual was who was convicted of giving a seven or eight point two  three deal specifically with using or displaying a firearm moreover your honor that once the court's able to look at shopper documents the shepherd documents indicate that the defendant in this case assaulted the victim by striking the victim in the head with a firearm and those are in the shop or documents as well so if the court agrees with the government on the mathis issue of divisibility there's enough in the shop or documents to determine that this indeed was a crime of violence it is worth noting on the crime of violence issue how would ultimately affected the sentence the government believes that any error with any error with respect to the crime of violence terminations in this case would be i think that the point here though is that this this even if it was a guidelines or was not a guidelines are significant magnitude and that would be because in many cases where a person's prior crime of violence or controlled substance offen calculating the guidelines here that what was at issue was a jump from base offense level twenty to twenty two the defendant already went from fourteen to twenty because one of the firearms involved in the offenses automatic firearm capable of accepting a large capacity magazine so the additional crime of violence in the defendant's criminal history was a difference between twenty and twenty two the court also cited that this wasn't a case of a of a blanket alternative sentencing that the court cited specific factors  support of its alternative sentence it cited the nature of the defense criminal history which included violence car chases carrying weapons and assaults it side of the nature circumstances of the offense which involved when the defendant  time and that those prior state convictions didn't adequately deter him from committing future crimes and so this is a case where the court issued an alternative sentence and said here's exactly why one hundred sixty eight months would be my sentence even if i erred in calculating  helpful fact here that the jump was from twenty to twenty two it's also worth noting that the district court very downward essentially in criminal history history category it didn't depart down in criminal history category but it said i'm going to treat th defendant as if he's category five instead of category six when you calculate the guidelines there are two level jump in this case there would be this is a case where there's an overlapping guideline range of the number of one hundred sixty eight months if you look at it a post variance and so the court did not error in finding that the prior conviction was a crime of violence to the extent that he that that error was harmless unless the panel has any additional questions that argument was made in the circuits recent decision and bowman and i can't recall if it was explicitly rejected in that case but the argument was made and the court at least implicitly rejected it by finding that that did not indicate that they were alternative there's only one location at issue that's what's going to be submitted to the jury now we know by mathis that the actual location under iowa burglary is not an alternative element so i would submit the strength of that argument as weak in this cont to briefly address harmless error there is a problem with how the gesture court discussed this alternative sentence because by relying on or making an alternative sentence the district court relied on things that were in dispute and generally when this court finds harmless error it's when a district court says ok i know i've got these guidelines these arguments whatever is in dispute but even pushing that all to the side relying on other factors i would still give the same sentence for x y and z reasons that's not what happened here the record is not that clean instead and relying on the alternative sentence the district court judge relied on the nature and circumstances of the offense which were hotly contested and some of them were objected to and not proven at sentencing alternatively we argue that the alternative sentence put forward as substantively of substantively and reasonable there were lots of guidelines their arguments in dispute and it was a big jump is looking and i believe it cited in the reply brief but in that case it indicates when there's not a specific subsection listed and you're just trying to go by the conduct maybe what a defendant pled guilty to or what is listed in the judgment order if that's all you have that conduct if it fits within different subsections and it could fall out in different subsections which it could here it could fall under the subsection of act intended