night please the court i represent edmund jenkins in this matter and this raises an issue of statutory construction the problem we have is that virginia has  malicious wounding and unlawful wounding in one way and congress has defined a crime of violence in a way that virginia statute does not meet it i won't deny that it creates some unusual results when applying congressional congress's definition of i'm of violence to determine whether or not malicious  violence but statutory language is what we have to go with not what makes sense because due process requires that we rely on what is stated in the law law states that a crime of violence is one that has as an element of the actual tempted or threatened use of force as an element there is no such element in virginia statute the existence of such an element cannot be presumed elements are those things that have to be proved beyond reasonable doubt to a jury before they can convict a jury is not asked to decide whether or not someone who put poison in a drink used force they're only asked to decide whether c bodily injury by any means just to say that it to read into that statute an implicit element of force would be to take those words right out of the statute by any means would become meaningless you mention poisoning i mean is that the crux of your argument that causing bodily injury by any means could involve you know in direct applications of force like putting poison in a drink yes and in fact as cases that have been interpreted under virginia's law a simple assault and battery that could be one that involves just an offensive touching not a violent of force if it is intended to cause injury and fact does cause injury then that would be punishable as an unlawful because i see those as tooth slightly different arguments one the poisoning example sort of sounds in this distinction between direct and indirect uses of force and then what you said there sounds like you're talking about kind of de minimus uses of for you're making both argument i'm making both arguments yes a dementor misuse of force is not sufficient force under johnson one that requires violent physical force but if the can you explain to me why the specific intent element doesn't at least as a practical matter take care of that problem is someone has to actually intend to mean more wound or or injure the person how is that not going to involve at least the attempted or threatened use of force that would be capable of doing that will for example suppose you free the wires on someone's steering column or brake line you don't even break them all the way you just fry them to the point that nature may take its course and at some point when the person is driving their steering or brakes go out and you think you intended that to happen but you didn't apply physical force to a person ok that again sounds to me more like the difference between indirect and direct application or at is more like indirect ok ok suppose suppose i know that this person is emotional and reactive and that she can be scared easily and so i wait until she's coming up the stairs and then i say  suppose i did a demesne in the sinai happy to have examples on direct indirect to i'm just trying to get my hands around suppose i actually touched or on the shoulder and then said oh my gosh and jumped myself but didn't push or didn't hit her but she she jumped and falls back down the stairs because i touch ok can i ask you why our case is the sort of our line of cases and read sort of call them the poison cases don't pretty much address that by saying look if if you hurt someone through the indirect use of force you know you didn't pick up the staircase and push it on her but which tore down the stairs why those cases don't control here you are i think they rely on a misreading of castleman i totally understand that argument and i got that from your brief but aren't we bound by them i mean is this just an argument you're preserving for further review to the extent that direct or indirect force we may be precluded from arguing yes i am preserving that for the review but for the dimensionless force i am not the de minimus force that can cause injury whether it be because of an eggshell plaintiff or other reason if it's done with the requisite intent under ban of it one ninety six virginia two ten eighty three se second three sixty nine applying a cream assaf that was supposed to be a medication but in stead actually caused the woman's skin to corrode off if if they had been able to prove the specific it's not it's not pulling the trigger on something else that imposes huge force and then an end also in common well first brown the court held that any assault and battery are assault and battery is a lesser included offense of unlawful or malicious wounding and as we know assault and battery is de minimus de minimus offensive touching can constitute a battery and if that is done with the intent to cause serious injury or maiming or disfigurement whether it does in fact or not cause it if it's done with that intent and causes some injury even a bruise now as the cases are interpreted in virginia two thousand and fifteen case involving spouse a practical matter can you just describe to me the circumstances under which someone does sort of a mere offensive touching with the intent to wound or mean how does that happen why would someone do this if they intend to  well it just seems practically speaking that's going to be an all set practically speaking people do funny things in anger and mean funny things when they do them grabbing somebody in the heat of an argument ma legally be insufficient to be physically violent force but it could leave marks and at the time they grabbed them they could have intended to cause them harm and then stopped short of doing so but they had already made that  contact and then there's i'm going to kill you and then they pause breathe and they stop but to convict under the statute wouldn't the part where they grabbed the grabbing itself have to have been with the intent to me more when you're saying that you can be convicted under the statute if you do something with an intent to leader or do something that would intend or move or wound but then don't complete the later a i would say and messed not just in a domestic violence context but when you grab someone in the heat of anger and say i'm going to kill you you're not talking about a future act you're talking about right now and that is your intent the moment you grab  may reconsider that intent later but it still enough to support in virginia the way that the way the virginia supreme court has interpreted unlawful and malicious wounding that's enough to support a conviction the supreme court precedent i believe so because haslam clearly stated that it was not addressing whether direct force was required or in direct force  immaterial distinction yes i do for all the reasons stated in the castleman opinion both johnson and castleman noted that domestic violence misdemeanors and s c c a violent felonies are two different animals in johnson the court was clear to say they were not deciding what force would be required for domestic violence felony you're say the government not entitle to rely on read irby or covering i would say that they are wrongly decided and that at makes them subject to being overruled on for the proceedings not saying that they couldn't say that will be are you saying that they're wrong the polls are inconsistent with the supreme court  holding but it is it is noteworthy that it recognizes that johnson and castleman were interpreted two different statutes and in both cases they indicated that their decision d violent physical force if you're applying to a c c a in the a c c a says that physical force has to be an element not that it's something that most of us would say probably had to happen if the crime was committed but was it an element of the crime basically the government is asking the court to rewrite the statutes to be compatible with one another but that is not the court's obligation or way the federal statute has been interpreted but either congress or virginia could make legislative changes that would resolve this problem congress could define a violent felony as one in which intentional bodily injury was cau and that would eliminate this problem is going to visit the visibility question in this case i believe not clearly there to see two crimes in the statute but for purposes divisibility in the modified categorical approach analysis you only look at divisibility if there is one in statute in which there is a violent felony and in this case none neither statute can be interpreted to be a violent felony in every case thank you good morning jean hudson for the united states this case is controlled by the court's decision last week as your honor just mentioned a moment ago in covington which interpreted a west virginia statute with language identical to that of virginia's statute eighteen point two fifty one which is the court is aware makes it a crime to shoot stab cut or wound or by any means caused bodily injury with the intent to maim disfigure disable or kill in that case the court held that the the statutory language dictated the result that scuse me the conclusion that the minimum conduct required for a conviction of unlawful wanting must at least involve physical force capable of causing injury to another person that meets the definition of johnson and for the same reasons that the court found that the west virginia statute constituted a violent felony a court in this case should find the same regarding virginia statute  my colleagues arguments were guarding poisoning i think as your honor has pointed out in the government's view were very clearly dealt with by the castleman decision and by this court's precedents that followed castleman specifically  definition of force and applied that reasoning to the context of the west virginia statute and in read the the other virginia statute eighteen point two just fifty five so we think those cases are very clearly consistent with and properly applied logic and say that it was you know considering a different statute and it was not actually deciding the question whether the same analysis would apply under this federal statute i'm sorry i'm having trouble hearing i thought castleman said clearly that its a sort of common law force was limited to the statute in front of us in front of it and it was not deciding whether the same analysis would apply in this context now someone did leave that question open but i don't as some i think the third circuit in chapman  made the conclusion that i would ask the court to to reach here which is there's none the less no reason not to apply councilman's logic to this context it makes sense and would be appropriately applied here where you have a statute that cannot be committed without a battling injury at a minimum and specifically as your honor pointed out a moment ago with the intent to maim disfigure disable or kill so we think castle and logic absolutely dictates the same  direct force so our view would be that the reasoning which led the councilman court to conclude that and direct force is not excluded by the johnson definition of force would absolutely be imported to the virginia statute the fact that the argument completely so i'd like to say two things i think in response to the court's question one is that we agree that castleman left open the question whether the causation of bottling injury necessarily entails violent force and our view there is that as this court in read concluded that the court's formal reservation in castleman does not foreclose the application of councilman's reasoning to this case when ever bodily injury is an element it necessarily falls under the force cause or whether you are making a narrower argument that's a long as you have this intent to me or cause serious bodily harm then you have taken care of your minimal force problem we're making both arguments but our argument is our primary baseline hardiman i would say is that when johnson defined force as force capable of causing pain or injury if a statute requires the actual proof and of an actual bodily injury then as justice scalia said in his car currying opinion and castleman there must have been force capable of producing that result so we are making that argument he had to concur right concurred because the majority wouldn't say that so i don't know how much weight we can put on the current statement i would say and i would point out that the majority certainly didn't quibble with justice  arguing for judge harris that you want to rely on the concurring a bit yeah well i'm arguing that the concurring opinion makes sense is logical in that there's no reason not to import the reasoning that they have from it would be the law we've had to follow correct but again as concurring opinion we don't we wouldn't necessarily have to follow that we might agree with it that's right we might say it makes sense to that's right but we from applying the reasoning there simply because the question was reserved and castleman so i mean it's even a little trickier right because we have we had cases saying the opposite and so for us the question is not just are we persuaded by the logic in castleman if we were coming to the question cold is there something about castleman that requires us to go back and say our prior precedent has been superseded and it's hard to see how an opinion that specifically leaves open a question supersedes prior precedent right we're not even coming to a cold we've got that whole line of cases  line of cases in the footnote in the wheeling and we have cases coming out the other way so for us the question is is there something about catherine that actually requires us to reverse those cases i would say that the decision and castleman regarding indirect force that if the court applied castleman properly in this case just like in reed and rb and covington the court could not find that in direct force is excluded from the johnson definition of force without running afoul of castleman that's the government's view one of the if read she says haitian published opinion of our court earlier would which would be controlling the prior cases or read well unless read and of course one panel can't overrule another panel so  get to go back and let her read you would have to go back to read was inconsistent with prior in bank or circuit case you would agree that the end bank cases would have control  different directions we have to go back into the history and figure out what their earlier opinions were if they're independent of being overruled by something that came out of the our president would you agree with that point that the concurring opinion in castleman can't overrule this court's prior precedent yes yes or but again our our position is that the reasoning and castleman can be applied in this but it couldn't be applied to overrule our president no by a subsequent panel correct and me and you wouldn't have i might agree one hundred percent with the right the concurring opinion cast one but but i if i earlier randall what did we do cause we've posted here to post to deliver some predictability to the parties out here right but even driving around at a time yes right about even setting aside justice scalia's concurring opinion just looking at the at the castleman opinion itself the majority opinion just looking at it we'd have to look at that it would be controlling absolutely you nol agree on that what judge sotomayor wrote would control what we're doing and if it's inconsistent with her we have prior presidents inconsistent with what she did or what the court did the majority of the court the numbers already of the court and castle in control absolutely will agree with that one hundred percent i agree with it and i'm sure many else would write and i and i think i've made this point that at our view is that there is no reasoning reason not to apply that reasoning to this case which reasoning the argument because west virginia statute is similar to genuine that's that's dispositive in terms of applying those cases here it is certainly a factor the fact that the statutory is not just similar as i could read it the statutory  force capable of causing pain or injury under that statute the virginia case is interpreted that statute as well as the statutory text right indicate that a violation of virginia's statute eighteen point two  fifty one necessarily involves johnson level force and what do you clean up from virginia long in the cases that we have reviewed your honor the and really responsive to my colleague's arguments regarding certain the cases that she points out our view would be that the cases that we have seen either involve direct force or indirect force and that again under the logic in castleman the cases that involve in direct force still involve johnson level force because of the requirements of the statute which require proof of a bodily injury and especially where there is the intent to maim disfigure disable or kill i haven't seen a case myself that i'd thought fell outside one of those categories including the cases that have been mentioned by my colleague the concept of diminished force  nowhere in the supreme court cases talking about the force that we are are analyzing here the government's view is that there are only two types of force for these purposes and it's either offensive touching or it's violent force and again our view is that for all violations of eighteen point two dash fifty one it's violent force but even if there were some de minimus force our position would be that because a bodily injury has to be proven and with the intent to maim disfigure disable or  kill any violation even under that standard which we don't think exists would qualify as a johnson level force and therefore a violent felony and because of the intent requirement so can the force be the actual question for example hypothetical let's say you know a person is in the big they have and they normally keep their medicine a certain place so you go in when i mean asleep you know they get up at normandy and might get there and you turn the light off and you move the medicine to the other side of the bed and they get up and sure enough they fall and break their neck that's intent right but what he did was they turned off the light move medicine is that enough that what is the force of my hypothetical the force that was exerted that caused the person to which was what to do it because it will make it easier for you was it turning off the light or was it moving the medicine disfigured there's abler kill well i'm assuming that there would be in the judge's hypothetical your honor that there was some intent to kill in that hypothetical if there weren't you wouldn't be under the statute in the first place so without her  remove the madison with intent to my right there would have to be some intent to maim to have to figure out their statute you still got to have the intent right and that's my point even under your honour's hypothetical you would have to have shoehorn something that was never intended to match the federal statute is meant to hance crimes already pretty much the coincidences add on to them if you can find these predicate offenses but they're matching  again federalism states have no interest in narrowing their crimes definite they want is broad as possible so that rather than using the rule of limited you try to find a way to make this fit into  my two cents that i think that's the problem in these cases i understand the court's comments and i would make the point though that as i think it was the this court in irby that said nonetheless it's very difficult to imagine though conduct which is capable of causing a person to die especially madding especially when coupled with the intent required in the virginia statute that doesn't constitute violent force and it would be the government's view even in light of the court comments that virginia malicious wounding and unlawful wounding is the archetypal crime that would fit what congress intended when it was talking about designating crimes for violent purposes violent felony purposes for the  understand the court's comments but the government's view is this absolutely fits within that construct and definitely under the johnson definition of force see the my life isn't very quick i should do we do we have a divisibility problem in this case or question it sounds like you think not statute it all comes in under the force well it's so there's nothing for us to do on divisibility there is a question of divisibility i don't believe the court has to reach the question of divisibility in this case because at least for two of the three prior convictions for mr jennings the government introduced all of the underlying documents in the district court and those documents show for two of those convictions in the indictment it simply says did shoot wound or cause bodily injury and the government's view is that the those documents even if you were pursuing the modified categorical approach as the district court found tracked the statutory language and didn't indicate which of the versions of the statute the third conviction did simply say strike and wound but in order to get to the three i think you have to get to the categorical approach ultimately thank you so unless there any further questions thank you  intended but it does not fit what congress said and we can't look at intent if it is in conflict with the plain language of the statute and the plain language of the statute is that physical force must be an element of the crime not it must have happened not it must be presumed to have happened not even it couldn't have happened without it if it's not an element then it does not fall within the a c ca a to domestic violence cases johnson by its terms is expressly applying to a c c a use of force and some of the prior fourth circuit if you don't like the johnson circuit precedent it would be inconsistent with with read an herb be i'm looking at what you're saying what's inconsistent with herbie johnson who kept on some johnsons and consistent with her and so are the cases holding that assault and battery of a law enforcement officer is not a violent felony under the a c c a and that felony domestic assault and battery is not a violent felony under the a and i do think that the law enforcement officer assault and battery in the domestic violence assault and battery case is not fitting as aca prac predicates would also be highly relevant and would be contradictory of read i also wanted to come up with another de minimus example spitting and i had this in a civil case over twenty years ago that is considered de minimus force but it is an assault and battery and if you do it while in fact in say with a mars respiratory infection that's resistant to treatment with antibiotics and your victim has respiratory problems begin with and you do it with the intent to get him seriously ill that would be causing injury with to minimize force and it w the hands of people who will use them violently and why wouldn't congress want to keep guns out of the hands of people who spit at people in order to kill them probably and it seems pretty serious they probably would not seem like a minor use of force if you if you actually can kill someone by spitting at them and you do it that seems like a real problem how is that not the use of violent force because it it stretches the language beyond the parameters of what our understanding of those words mean is the difference between say if that door is locked and i have a key and i open it that's not use of force if i want to get in there and i don't have a key and bang it down that's used to force either way the door was open but but use of force and like on the scene theory if i just sort of prick someone very very slightly with a sharp blade in their artery it's just the news little bit of force but i know they're going to bleed out and die and that's why i'm doing it you're saying that's not the use of viol force because it was just a teeny little prick and i just i'm saying that congress needs to change the wording of their statute if they want to encompass these cases but they were you would you would agree with my hypothetical the very slight pricking of the skin in order to make someone bleed out and die would not be covered by the statute if indeed it was that very slight i would have to agree i doubt that most cutting injuries that cause bleeding out would be minimal force but in your johnson required violent physical rof force and it discussed to men a most was not being sufficient castleman said in direct force is sufficient for common law misdemeanor battery it did not address