ammunition and presumably did so because he would clearly be subject to enhance penalties in the arm crude criminal act based on three part convictions two for drug convictions which counted and the third was obviously going to be involuntary manslaughter conviction that was obvious of the time because in one thousand nine hundred three this court case called crum and so that manslaughter satisfies the residual clause of the violent felony definition and in doing so it would follow the logic of the sentencing commission is basically if you've caused a man's death you've certainly been involved in a crime that present a serious potential risk of injury so it was nine hundred ninety six and about twenty years later the supreme court struck down residual close in the johnson case and so so we're here today with the johnson claim and there's some two types of issues raised in this case do the government's issues as for the substance i mean the key principle is that when dissenting judge in order to comply with the sixth amendment when the sentencing judge is looking back at a prior conviction and classifying it no convictions but based it was a clear from the sense in transcript the judge begins the federal district court was punishing him for his conduct and the judge could do that the judge could well i mean he under crummy properly classify the manslaughter conviction as a violent felony triggering the fifteen year life and then on top of that he said because of all this conduct which he saw when he made you know found by preponderance of evidence that he didn't gage these crimes that he was going to give them an opportunity and so sure their conduct was part of the sentence but the sentence what allowed the judge to go above what would otherwise be the statutory maximum of twenty years were allowed the drugs or go above twenty years was his finding which is based on the residual clause that manslaughter counts as a violent felony how do you know it was based on the residual  there's the the only real proof on that issue is the background legal environment right now that the courts after potter and the other circuits have looked at this issue and they look at three types of proof there's the background legal environment there's the sentencing record from the time and then there's sometimes the judge who did the sentencing makes a statement presently right and in our case the sensing record w silent the judge who did the sentencing then didn't speak on it and so all we have is the background legal environment and that environment was this the sixth circuit had said that time there are only two there's two options residual force and case loss of residual and i think when you add that to the presumption of regularity which is that the judge is judges know the law and they apply it in making their except of the judge's ruling that it's divisible between man voluntary manslaughter involuntary manslaughter and that's that's the answer and that's the that's the manslaughter statute that is related to the murders to your right and of course an argument you could have been convicted under the liquor fatality statute which also has the charge of second degree murder and voluntary manslaughter there's another option for which statues he was sentenced under or convicted under i don't know could have been the basis of finding a liquor violation your honor there's a tennessee case law that and know what happened your honor we just overlook the fact that we know exactly what happened with regard to the murder you know that's that's what the that's where the categorical approach requires t that states the probable cause for the arrest that justified his arrest and someone did that someone elton said that he shot and then and it caused him to die and that was the basis of his arrest there's no indictment in the record so we don't know what statute he was indicted under and on top of that he didn't plead to indict him plead to murder which is what he was charged with and we know that only from the judgment the judgment has been charged with murder places and they have to have a complaint just says because the reasons why he was arrested well let's assume that that's what he was indicted for is that matter ultimately does not matter your honor because  mean as sheppard document could in theory be anything that shows with the defendant actually was convicted of what he admitted to sustain the conviction but you necessarily had to admit seeing that conviction and when you show what he was arrested for it doesn't show what he had to admit later on down the road to sustain his conviction he was arrested because someone said he shot  all we know is is that he was charged with second degree murder and indictment we don't know under either of the two statute and then he didn't even have to plead he didn't plead to murder and he didn't have to plead to a lesser included offense all you had to do show that the liquor provision could have been involved in the judgment on or yet where is the judgment that you're talking about the judgment next page is one seventy three one seventy three and at the top it says indicted charge murder second degree and a few lines down the thing guilty of voluntary manslaughter and again the reason for this is because there is a six a member violation of the sentencing judge goes outside of these records and make special findings about what happened with the sentencing judge goes and for the purposes of triggering different statutory penalty the suggs yes what really happened is they shot the man so it's understandable when the judge decides how to actions as his discretion but when deciding this does he tory penalty range the judge has to within these rules thank you nearer issue about what the documents in this particular case show for it kind of get into those and how they interact with each other like to start with three points i think are not really in serious dispute here which are these so first mr dunlap would still qualify as an arc or criminal under current law if it is voluntary manslaughter conviction had been under the general tennessee manslaughter statute or for zachary assault conviction had been under the be one or b two variant the second is that third is that throughout this litigation mr dunlap is repeatedly conceded in knowledge that in all likelihood his voluntary manslaughter conviction was under the general manslaughter statute not under the liquor fatality statute so the the no i think i think my point is as as just marriage sort of alluded to everyone kind of recognizes then no but there's no question that this is what the supreme court requires in initial sensing hearing perhaps but in a second successive twenty fifty five that's not the case your honor so i think this court address that directly in potter and said it's not enough just to say well there's a theoretical possibility that i could have been convicted under a statute that wouldn't qualify today now the burdens on the government to disprove that definitively using only shepherd documents instead the approach that potter what happens is that what he says that if you know that the person was sentenced under the residual cla well so if i if i understand your question correctly that is your question about basically how kind of the categorical approach works in a second successive twenty fifty five that's what i thought you were thinking well so there's initially this thres would then i think go probably go back on the government say all right let's let's present the shepherd document see if it this year can be deemed parlous because so potter came out seventeen months after we filed our response to the twenty fifty five and actually after the district court denied the twenty fifty five so we didn't rely on it because it had not been issued yet  this court mr dunlop acknowledges that it's more likely than not that he was convicted under tennessee general manslaughter statute not the liquor fatality statute but but looking at the document that he pointed us to one month seventy three there is no indication which one it is correct correct correct and so so again that kind of gets back to is there any other document that we should look at other than the judgment so our position would be  well i'll get back to potter in a second but it but in terms of kind of the near were sure of what the documents here show i think our position is although an affidavit of complaint is not itself a valid shepherd document when you're talking about something that's outside of  then the same strictures of shepard don't apply so it's one thing when when the conviction is under a statute and say the indictment in the judgment lists the statutory section but don't list the subsection right then there are certain separate documents that the court can look to to see whether there were subsection applied that's not the issue here the issue here is which statute applies and if it was the general manslaughter statute then you don't even have to get into the modified categorical approach that's going to categor without first determining was this since it's originally based at least in part on the residual clause ok i am confused by your answer because my question to get back to it was on page one seventy three we have a judgment the judgment is voluntary manslaughter it doesn't have any statutory provision what is any other shepherd document that we can look at so in terms of shepherd documents there around shepherd qualifying documents well our position is first you don't even have to get to those and then second are there are exceptions to how sheperd applies when you're outside of the modified to care or pro choice just trying to see wh exception applied ok and if you're if you're trying to do that is there a supreme court case that gives you any answer well i do think that in this context a case like part reilley is quite analogous it's not in the specific context of a shepherd in the army or criminal act but it makes the basic point that when someone comes along and tries to collaterally attack a judgment a says well there's not enough information the record there's a missing document here that may suffice in an initial proceeding where someone raises a boykins claim on direct appeal but when it's a collateral attack the mere threat that there's a think one way in which well doesn't that mean that people are going to be raising these claims twenty to fifty five certainly there's no question that he is entitle to raise a johnson claim this twenty to fifty five and a second successive but potter then sets out the procedure for what needs to be done to kind of make it to carry bass in the burden that every post conviction petition and indeed every civilization has which is show is entitle me to relief by a preponderance of the evidence and again it's undisputed that if you was convicted under the statute that as a practical matter we all know applies his conviction would be still qualify as a predicate today he would not be entitled to relief so the only question is can he show that there's even a realistic likelihood more than a theoretical possibility that the liquor for tell the statute actually serves as the basis for a sentence now let me talk briefly about crime which attention before you get there you mention potter what about rain case so rains for one it was an initial twenty fifty five or so potter is second or successive like this one so to the extent that the court has to follow one or the other i think potter is a more directly on point and b as the earlier decider one is decided one would take precedent over reins and you know i think there are aspects of rains that also you know try to that characterized part of potter's reasoning is dicta i think in large degree that's dicta within reigns and it's also not an entirely persuasive reading or a fair reading of potter i mean potter's core core reasoning is a person doesn't get placed back in the same position he would have been in at initial  from the eighth circuit saying whether we focus on the elements of the crime or the offenses underlying facts it qualifies so so even if somehow just begins had a crime in mind which i think is quite unlikely there's no reason to think that he had the residual claw specifically in mind so i think clearly there's no express reference to which clause applies of course that's partly because it was never objected to everyone agreed that he was clearly non criminal so our position is not that he definitively stated on relying on the use of force there is total ambiguity defendant because the defendant may not have had an adequate incentive to este the basis for his finding a stronger criminal that's not the case here so here again had the liquor had there been any plausible basis to argue that the liquor fatality statute was which chickens gave notice of before and was front center throughout the hearing was whether the current offense of shooting and tonio printing the face was similar to his prior convictions and so had mr dunn not been able to say to the court you know you honor i may have been a originally charged with shooting someone but it turned out actually that person died from a liquor overdose and that was the basis for my conviction he had a strong incentive to raise that point then and didn't do so  'd also just kind of make the broader point that you know if a petitioner raising a second successive twenty to fifty five something johnson is sort of immediately and automatically placed back in the same position as someone on an initial sensing hearing who is timely objected to his his aca status these cases are really going to turn on a fairly arbitrary fact which is basically what shepard documents are available twenty thirty years after the fact position than the defendant to to obtain those documents in fact the defendant is the only person present who was actually there at the time and actually knows what happened and the reality is when you're trying to go back and kind of cobble together this record which may not actually have existed fully what you're doing is basic kind of seeing if you can still track down the court reporter if he or she has retired but aren't those problems problems also in the original sentencing if the crime of violence occurred a long time earlier which we see a lot of the time they certainly can be but but any time you add a decade two decades the fact you're you're greatly reducing the likelihood that shepherd documents are going to be available so that's kind of another potential reason why applying the i'm not sure because because frankly please transcripts are kind of necessarily compare prepared contemporaneously usually it's not as though they're part of the record sitting in some file of questions whether you can find them usually the question is does the court reporter who may be sort of a private contractor still if she's still alive is he or she still working can you find that person pay them to go track down the tape in the archives transcribe the hearing now so why shouldn't the default rule be that if the record doesn't exist there is no shepherd document that shows that crime was a crime of violence and therefore this should not be added together to give the a c c a sentence when the statutory maximum for the offense of conviction here is just twenty years i think the answer in potter is that it really flips everything about post conviction litigation instead of basically presumes constitutionally or in requires the government to disprove that possibility using only documents that would have that that would have been admissible at the time again that's but that's the procedure in a little sense hearing but under the very narrow exception that congress has set out and potter is the key first second or successive twenty to fifty five's but it is not the key for the original twenty two fifty five is that right that's really how raines read potter yes ron thank you i would start by addressing a question about the government waiving the potter issues the the have waived those issues how course they can cite potter but they made none of these organs below they could have come into court and said look they have to prove something more for the government treated this just as if it were a sentencing issue do these do these convictions look in the shop or documents do this conviction says by the force clause that's how they argue that they express they said it's a question of law they cited brand new case law from twenty sixteen twenty seventeen to say let's go back and look at them using this new case law when we asked for an ever denture hearing this there should be no evidentiary hearing because it is a question of law is exactly what they said so it's exactly the terms they wanted to litigate it on and so there are too late with this issue we've we set a case called davis you know it says versus davis that held the government away or in a very similar or he was it was it the certificate of appeal bill is expanded to include this assault issue that the government didn't make these arguments below and they're making them now for the first time but is just the same as the manslaughter one he pled down from a rape charge to aggravated assault and all the judgments as is every bit assault so it could be any form of assault and as th district court didn't decide the aggravated assault you are the strictly a legal question and we think it's properly before the court the court addresses that type of issue there's a case by this case called bra versus united states from the twenty sixteen where this court says you know we can address these categorical questions for the first time on appeal will even accept shepherd documents for the first time on appeal to address so so i think you know the issues are before the court and they are legal issues and as for the potter issue potter is a much different case like for us the background legal environment is favorable as well we have in our favor that's the only evidence on the issue and it's in our  favor in potter that background the legal background was against the defendant george a burglary had been found to be a generic burglary and no one had to respond to says by the residual clause and the judge expressed the said he did because you know the shepherd rule says look at the minimum that he had to admit to sustain this conviction thank you both of you we appreciate your argument in the case will be submitted and