morning your honour's carl gunn appearing for mr door i'm going to try to reserve three minutes for a bottle and i'll try to keep track of my time at the same time i'm hoping to touch on each of the guidelines issues so i'll see if i can try to do that decide that issue for the only difference between the newer guideline in that case and the older version the guideline in this case are first of all here the aggravated assault is in the commentary instead of the text as binding as a guideline if it doesn't conflict with the guideline second the residual clause shouldn't lead to a different result for multiple reasons first of all i think you need to interpret the residual clause in light of the commentary and the commentary says aggravated assault so i think it would be not real consistent with a commentary to an interpreter residual causes including some other saw second you have to look at the breath of the washington assault with intent to commit a felony it's about a sweeping as you can imagine it includes any offensive touching and it includes any felony i give you multiple examples in the reply brief the leak case that i cite in the reply brief says that the offense of touching assault isn't enough so why would that change when you add intent to commit any nonviolent felony it just doesn't make sense so i don't think there can be any different result in this case then there's going to be in the other case the the other thing to consider here is i would submit to your honor's robinson really is controlling the government didn't know you're on your own it was on that panel too so i think i don't know how i land on these panels randomness has its upsides and down i've always wondered about that but beccles i either way beccles was the law and battles means the government panel had to consider the residual closet and certain been granted to back wills months before that so i don't think you can really say robinson is in controlling on the issue but it's true that he didn't expressly address there is also the felony harassment conviction and your honors i'm sure know that that has its own independent significance because each crime of violence bumps up the offense level sort of  like to offer first of all if you're going to adopt that reasoning on the felony harassment then the same reasoning means robinson is absolutely controlling under the same rationale and the assault issue though i don't think you need robinson for the other reasons i've argued second it's a little bit different here applying the reasoning to the defense valdivia flora's argument is a little bit different than applying the robbers and the residual clause argument in robinson was just argument that would have been offered to reverse the district court and that doesn't get so readily done with alternative arguments that are presented so i think you could decide that worley isn't controlling on the valdivia flora's argument even though you could decide robinson is controlling on the assault argument so let me just stop  eliminates i think felt the via florist creates a different reason for felony harassment not being a crime of violence that wasn't considered inwardly and and as a result it's an open issue not necessarily inconsistent it's the ground correct and actually it's interesting and valdivia floors itself there was another opinion that was to the contrary on the bottom line result and  flora's expressly held that well that's not controlling here because they didn't consider the aiding and abetting argument so valid to be a floor is itself is an example of where a court said well we're going to look at the aiding and abetting issue separately abetted had to make threat of force but the same thing is true in the accessory after the fact context that was considered in any in any you had to find the principle made a threat of force or whatever in that case was a murder for hire so i actually did force but the court basically i think the rationale of any is that well the accessory after the fact it's not an element as the excess re after the fact in the same way it's not an element as the aider and abettor and so i don't think you can say that it's an element for an aider and abettor in the felony harassment context it's an element of what the principal had to have done so i think any is actually controlling on that point i'm getting close to my three minutes that i wanted to say for rebuttal just real quick on the in connection with another felony enhancement the important point there i think is there's absolutely nothing there's some stuff out there about maybe mr mr door was selling drugs there's absolutely nothing to suggest that he was using a gun in connection with selling drugs which is what would have to be found for that enhancement there were guns in the house but they were in a totally separate room the government says well the reason they were in a closed loop separate room was he was trying to get rid of them that's rebutted by the recorded call where he's talking about having them hidden under the stove burners that is the suggestion they weren't there to protect the drug pipes and small amounts of paraphernalia that were in the house all through the rest of my time from my rebuttal most of the court has questions with so i think i would say that at least with respect to the question of whether felony harassment meets the standard i think it controls to the admin certainly the court had the opportunity to consider it and did not in argument but in any event even if valdivia flora's does come into the argument i would suggest that what  overbroad that that and accomplish liability is part of doesn't need to be charged in order for that theory to be available in every case that every statute under washington  therefore be overbroad without regard to whether accomplice liability plus the underlying statute still meets the definition in the guidelines and i would suggest that even with well with respect to robinson robinson did not address the residual clause and i do think the residual clause comes into play here because of the unique circumstances of this being every man and therefore the earlier guidelines apply now the government didn't argue in robinson the residual clause but at the time that that case was briefed again this that was post johnson vagueness theory applied to the guidelines so the government really didn't have a reason at that point to make the argument so i don't think robinson control theory outcome here i do think that that would save you now  s you could you let us hear that part of the argument certainly i think under the residual clause what we here is having to show that the statute presents a serious potential risk of physical injury to another and it's difficult for me to conceive of any situation even when you're talking about an assault with an intent to commit a felony after all what we have is an assault the way washington de fines assault includes offensive touching that doesn't result in harm that is true but even offensive trust touching i think brings with it the risk because much like and pardon me if i go back to the idea of burglary even though we're long since past all of that burglary alone didn't necessarily in every case raise the question of substantial physical injury yet it presented a substantial risk i think the fact that there was offensive touching and is enough that there may be fighting back there may be that may result in something that result injury and that's the government's position and we think that the residual clubs should apply and we think that the cases pre johnson support that so i guess we were to go down your line of ypes of offenses the risk posed by the types of offenses in the that were in emirate in both in the guideline and and in johnston and aka so i think that's what we have here and i think that has been  met so i think from that standpoint and mr tourist case this somewhat unique case i think that the guidelines calculation in this case was correct very and there has to be a connection between the two but i would point out that the defendant's own statement and i think that here are eighteen during the hearing talks about this house being a five hundred square foot house and what we have is sort of a combination of things the district court had before it in exhibits l i n j to the government sentencing memoranda to memoranda from witnesses who described the fact that he was selling drugs that he had a firearm or had firearms in fact the one witness who acts about the fact that he walked out of the bedroom that day where the day of his arrest with the firearms it's all a tiny bit confusing as to where those guns were we know for certain that he moved them because he put them into the bag along with the body armor in order to get them out of the house before his the probation officer arrived but i think taken together with his own statements about selling drugs his statements about the kind of conduct that he engaged in with certainly in the past with the guns the body armor the police jackets that he was stealing from drug dealers i think you can infer that by a preponderance of the evidence i think there's enough there with mr guns that you know if you're going to use the guns to further the drug situation or protect yourself or whatever you know usually item in this well that may be here on earth in a period when your department of correction supervision in you have someplace to keep them in room your house is five hundred square feet it's not that far of a move from the firearm in the stove or to the drugs in the in the living room if they weren't doing a lot of i have a feeling that would be the five hundred square feet and i don't mean to belabor the point but this i even wondered if it was really two different rooms or a kind of a studio arrangement where the kitchen was at one end do we have any i have a thing in the record there's nothing in the certainly are on or i think that the first of all part part of the argument here is that judge layton expressed his dismay at the state of the law with respect to what constitutes a crime of violence i don't think that that suggests in any way that judge layton would not follow this court's if this court were to remain and this court's opinion in any way is certainly did following the last three man and i suspect he may have you mean he certainly used some colorful language with respect to that but he is certainly not alone i think in his frustration with this analysis in where we go from there i do think  he has considered this case very carefully considered the fact to this case this is a defendant whose criminal history only accounts for four of his twelve adult felony convictions he ha been either in custody or on supervision since one thousand nine hundred eighty seven and virtually if one looks through the pre sentence report in virtually every case where within no no more than serious felonies but but but here we are and i think perhaps the trial court's frustration i just want to be clear that the government's position yes it's just these two prior felonies that the qualify as  consideration is that right yeah as a result of the passage of time yes your honor and just one other question at sentencing he stipulated that he had one prior but we don't know which one he stipulated to right that's correct ok thank you thank you you have some rebuttal t us when the stipulation your honor of course we just for trial purposes and partly to keep the jury from hearing about the nature of the felony that it's a stipulation and so when we get to the body armor conviction he just did one prior right that's correct so i don't win on that unless i went on both on the harassment assault that's correct and i try to be clear couple points first of all the government's argument about offensive touching and how that might lead to resistance the court considered that exact question in the lead case that i cite in the reply brief that page ten that's that argument's been disposed of your honor asked about the government about its best case on the connection of the guns to felony judge kristen i think the best case is the also had a statement by the defendant admitting i was selling you drugs the key was there was in the statement that he admitted selling drugs and using a gun when he sold them so what do you make of the question for the the material it's in the government's sensing memorandum about the recorded phone calls about the history of mexican drug dealers the history of robbing mexican drug dealers your honor that phone call happened while he was serving a prison sentence that started in two thousand and one so th that there was this police jacket that they found if you read the record i think it's a reporter's transcript pages three twenty two twenty three something like that that was a jacket that came from value village for six dollars and ninety nine cents it wasn't some real police jacket and there was nothing else out there to suggest he was engaging in this activity at the time after he got out of his prison sentence your honor also asked about what the record showed about where this might be a studio apartment it's not crystal clear but i believe and those are what mine on the different judge i just want to remind the court is the appearance of justice what would a reasonable person a lawyer even let alone a defendant think when they've heard those sorts of terms about the controlling case law the court as to apply thank van how are is submitted in the briefs well next here argument inherent versus strong