however if this court finds that even one of the prior convictions does not constitute a crime of violence then mr murat should not have been sentenced as a career offender you start off with a statute that has you know the murder in the third degree that has a you know intentional knowingly recklessly and excuse me your honor i believe you mean a simple assault i'm sorry that's right but  what is the status quo let's go to the they murdered of their degree what does the statute say there's explicit what it states explicitly murder of the third degree is all other kinds of murder and murder of the third degree is a felony of the first degree it is the case law however which goes on to define the elements of the offense in more detail and in defining those elements the pennsylvania state case law says that malice is a necessary and required element third degree murder malice involves recklessness and then we jump back to isn't in the present before we go i mean your abs are points out that it's a different type of recklessness it's a different animal altogether it happens with the same word but they're talking about something different how do you respond to that within the pennsylvania case law there quote near recklessness but from reading that case law we see that what the federal case law talks about is recklessness standing alone they are not grading it or giving degrees of it and in fact in the johnson case out of this circuit when the government and the department of justice conceded that recklessness does not constitute a crime of violence under big a and that analysis they say  recklessness and then go on to qualify that is being recklessness standing alone right before we even figure out how to slice recklessness or whether this place right was this is a true that big a was a residual talks about the impact of the application notes says that yes application notes are courted great weight and they are controlling as long as they don't conflict with the guideline itself here the application that one does conflict with the body of the actual guideline for b one point two a and if i may explain that in more detail sure for b one point two way give some enumerated offenses in the application out as long as it doesn't conflict with the guideline it does conflict with the guideline here because began the progeny tell us how to interpret the riseth will klaas and they tell us that recklessness doesn't cut it under the reciprocal kleis third degree murder i'm not saying all murders in all states but the third degree murder in pennsylvania law does conflict because it has a reckless element so you might you made no argument that i could see in your brief regarding the definition of generic murder isn't that essential to this analysis not necessarily your honor because we have to look under the categorical approach we see we really and end with the elements of our statute that we're dealing with the pennsylvania third degree murder statute and what it requires so and they talk i think it's the smith case in the seventh circuit which this court cites in a lot of its decisions it doesn't have to be that the state crime or the prior conviction crime is in every instance a crime of violence or not we're just looking and it seems to fit the generic definition doesn't it well then that would mean only that the stature excuse me the cometary in general than with regard to third degree murder would conflict and the government's argument that it does not conflict is based on their argument that there is gradations in degrees of recklessness but as i argued earlier that is not what the gay and it's progeny say are there any cases  what you argue that the enumeration of murder in application no one conflicts with the language of for be one we do not with murder but stinson in general talks about conflicts and that's what i was relying on also the wood case out of the seventh circuit they don't specifically talk about conflict but manslaughter is an enumerated offense under the application notes and in would the seventh circuit found that that was not a crime this now voluntary is when they're sudden heat of passion and provocation and the example of that would be if someone walks in on their spouse and catches them in a compromising position and says i'm going to kill you and in that sudden instance does i don't think it has a recklessness component to it so i don't think that manslaughter would be covered or excuse me i think it could be a crime of violence well that's that's just my point and it is then how could third degree murder which is sort of one up but up ratcheted up different aliments recklessness and that's just a quirk in how the pennsylvania legislature defined the crimes that one requires recklessness and the other  not and the government also made an argument that following our position that we suggest does away with involuntary manslaughter and i don't understand that because they are separate crimes in the elements are so distinct i mean but the are you had a person who was in effect beat to death yes and so the persons involved  in charge with third degree murder because and that's a that's not manslaughter know what you're saying that if you're in effect relying on the the literal words because words of statute include recklessly but that's now where i do come to the point i asked about before the commentary before b one point two includes murder in a specific if that's is that qualifies crimes of violence and this is whether it murder one murder two or three it's still murder intent which is not present in third degree murder and i think that it's as i said earlier it's a cork in the pennsylvania law and it should not i don't think an evaluation of voluntary manslaughter should affect the analysis here but back to  think you are your premises correct as i understand it your premise is that when an application note contradicts or conflicts with the guideline guideline trumps yes that's your premise right yes but i'm having trouble because there isn't or before the research will clause and then to define the research of a clause we look to be gay which says purposeful violent or aggressive and then the progeny elaborate on that and say not recklessness then we look at the elements of third degree murder and we find recklessness when you carry through with the guideline analysis and interpret ing the guideline before you go to the application notes that's all established and then you have this our fill of career criminal cases and it's really complicated because of the interplay between the federal reserve as i'm approach and all of these intricacies of state law which you so well articulated but so there have to be some offenses conflict with four b one point two a i would have to do a supplemental brief on that to be honest because there are several enumerated crimes and i would have to look up each one of the happy to do it all you know standing here now is recklessness recognized in the pennsylvania courts this court in an anon presidential opinion addressed the issue of whether or not the crime involuntary manslaughter which is a lesser included offense of third degree murder constitutes a crime of violence and important because if this court is going to not apply the aka grazers approach which is the simplest answer to what is i don't think the most complicated question  conflicts with guideline guidelines truss well that's what supreme court in this court both instruct however i want to tell us why she's incorrect when she argues there's a true conflict here there's not a true conflict because the sensing commission issue commentary indicating what it believes to be crimes of violence there are ten numerated offense offenses and i think that whenever you consider those crimes that are delineated in common sense fashion clearly the crimes of violence i mean several of them are s contained within the body of the guy like themselves but they've expanded you know if only congress had done the same thing with respect to the arc or criminal act i think this question would not only i would in the commission of just amended four be one whenever you consider what is a crime of violence i mean murder is the most violent crime of all it results in the intentional taking of the life of another but if this i want tonight your argument hasn't commonsensical appeal certainly t layperson the problem is we're dealing with some very intricate issues and you know read the dissent in big a and we know a lot of deaths involved in duis right but we're told that recklessness doesn't cut it so if this is a residual cla case the mere recklessness is a gloss on the gays recklessness and what are supposed to infer then that well we have to ask the question then is murder under pennsylvania law involving recklessness or mere reckless what we do under cite your honor and neither of us cited cites in our brief and i can assure the court that it was more of a sin of omission of my part of the one of commission but what happened in sykes is the supreme court reached under the gate whether or not a crime is a violent felony you have to look to see whether or not the end of the predicate felony is violent purposeful involves aggressive conduct now felonies you more or less have to conduct with the courts are referred to as a risk analysis so you look at the risks inherent in the enumerated felonies arson burglary playing with the explosives in ex you compare the risk involved in the predicate felony with the risk of the levels of risk involved with the united balance well if you look at three of the enumerated balinese arson burglary and  i'm using explosives i think the risk that cern herron in that in those crimes would be that there is a substantial likelihood that someone's going to get hurt or die so when you look at the risk involved in murder somebody so clearly under psychs and i think that psychs would apply in this case because the recklessness necessary for third degree murder is far above mere recklessness the pennsylvania supreme courts have pennsylvania code united section through to be three but rather it must be shown that the defendant consciously disregarded and i'm justified in extremely high risk that his actions may cause death or bodily harm serious bod harm so you know the type of recklessness is not the type of recklessness that's involved in simple assault and it's certainly not the type of recklessness that's involved in involuntary manslaughter rather it is a higher degree of recklessness the pennsylvania courts have consistently held that we're not talking about mere recklessness under sikes mere recklessness must be evaluated  as a as i indicated in my brief one of the reasons in determining what the generic view is you have to look at the case law on other ports should the model i don't think we need to get to that issue yet you agree with her that that's not an enterprise legally gaijin to decide the case i began i don't think so i did set forth an analysis in my brief detailing how the recklessness in issue you know i think that the straightforward approach would be the commentary does not conflict i mean that the purpose of the commentary is to elaborate are to refine what is involved in the guideline the guideline deals with the crime of violence i mean murder is a crime of violence there's no getting around that fact and except the someone's killed with kindness but then those kind of pieces are prosecut so all murders involve a violent intentional conduct that results in that of another individual you know the issue that we have here is is what is the mens rea and the courts in evaluating  these claims i typically have to determine what the santer is under state law that's been done by this court and done by every district court that has to deal with this issue in this case the santa for thirty three murder is dealing with malice you know the old pennsylvania's third string murder is really one of the construct of this that it's the praised indifference i mean when you look at the jury instructions that a court gives in the of common pleas for third degree murder the juries are routinely instructed that it has to be killing with malice and malice consistent with you this at this position hardness of heart recklessness of consequences so it's not even near it's not even recklessness it's recklessness consequences and a minor regardless of social duty i mean the courts of the commonwealth have been using that formula for close to one hundred years to describe the requisite state of degree of malice that has to case it's a statute that is capable of being committed in four different ways recklessness negligent knowing or intentional this court held in johnson that if it's negligent reckless it is not a crime of violence if it's knowing an intentional it is a crime of violence in this case the government provided consistent with the supreme court's decision and shepherd and you can see it in this case that ne someone by the neck and drag them up stairs or how can you recklessly do that you can't i mean what he did was violent knowing and intentional and as such it is a crime of violence under this court's decision in johnson so you know i think that that ends the inquiry and i don't think that the district court in gauged in independent fact finding i mean it looked at the transcript and it saw that mr monroe agreed that he had kno intentionally grabbed his wife around the neck and two separate occasions and i think on one of those occasions he also threatened her with physical harm on another whenever she had mary to call nine one one he rips the phone out of a wall so make that five minutes as opposed to three thank you law under the pennsylvania simple assault statute for the second one which you want to address now the government noted that the it wasn't mentioned which type of crime we're talking about here but you have the the understand we cannot separate says that we can look at the document where there were factual findings but the case law is replete with statements saying that the modified categorical approach is not carte blanche to start looking at the facts the key when the when do you look at the facts that you don't the key with the modified categorical approach is which not how which elements of the statutes of the defendant plea to not how did the defendant violate the statute your honors i would submit that if the prior offense in this court's johnson decision was not a crime of violence there is no way that this one could be either in johnson we had information that this  footnote saying that the defendant choked quote unquote the mother of his children we also had in a footnote the p s r quotations from the p are her prove docking it's not that that's where the rubber meets the road if it's it's a shepherd who document it's coming in and of it's not it's not in if if your we had a sentence if all we had here was a transcript that is a shepherd we call the reason i note the p s r your honor you are correct it is not a shepherd approved document but this court said in a footnote that there were these ugly facts that he hit his wife in the head with a candlestick and there was no objection to that factual recitation the p s r and this court said it looks as if this is not going to be a reckless or negligent offense it's going to be knowing attentional which district court can consider quote any explicit factual finding by the trial judge to which the defendant assented close quote to see within that if there is a mention of the elements that is out there at that we did hear i'm sorry is that what happened here the prosecutor read the facts sentencing judge as moral if he admitted those facts him or said quote yes or close quote he needed to have said the elements of the offense you're saying short of saying intentionally or knowingly intentional and didn't make any mention of the word reckless and that was found to be adequate well that doesn't mean you have to raise that if the reach that bar for biotic in everything you do you're on your honor i hope this or if not the formal numbering or the the elements i don't think that that's unreasonable even if the state court convictions don't come back to haunt a defendant in federal court on flippant because i think it's not asking too much mr i think you were and what i'm thinking no fence of that no but i think it's just good practice and it's something that a defendant is entitled to and you know when i read that i chuckle because i think a defendant is entitled to know what the elements are the of the offense are even if this is not coming back to haunt in sum they say over and over in the case law it's what the defendant pl not how the defendant violated the statute we don't know what he pled to from this plea concept was a way to try to get you to figure out how or what actually the defendant pled to i agree that the case law is a little slippery your honor you mention that they say th e facts but i think taking it in conjunction with the statements that say this is not a way to run around the categorical approach and just have carte blanche look at the facts i think qualifies that and in johnson this court mandated and the simple assault was found not to be a crime of violence even with very very ugly facts that are recounted in the johnson opinion in footnotes and so i would urge this court again to look at the which and not the how and the which is absent we don't know which section he pled guilty to so we must rely on the least culpable offense just two quick points outside of the simple assault m correct he cited a case in a footnote saying that murder manslaughter i guess it was prime of violence i dismissed that case because it was in the context of a different guideline to our one point two it wasn't this whole career offender acca so i think the analysis is different yes mr murray arrow was not sentenced within the career offender range of one hundred fifty one to one hundred eighty eight months he received ninety six months blanket also for represented arguments will take the matter under advisement will take a five minute